The relationship between the law of armed conflict and international human rights law

This is the first of two articles on two specific aspects of the relationship between the law of armed conflict (LOAC) and international human rights law (HRD). This post deals with the applicability of HRsL, on the one hand, in situations of armed conflict and, on the other hand, outside the national territory. These are purely HRsL questions. The second article will discuss how HRsL oversight and enforcement bodies deal with the possible relevance of DCA.

Those who object to the idea that there is any relationship between the two areas of international law must ask themselves what they are objecting to. If they are concerned that military conduct is being measured against inappropriate standards in peacetime, they should consider whether this is indeed the case. This will be examined in the second article. If the objection is to any form of judicial or quasi-judicial control outside the state, it is a denial of responsibility.

Some general points

It is appropriate from the outset to make a few general remarks on the nature of HRDs and on the relationships between bodies of rules. I assume knowledge of DCA but not HRsL. For reasons of space, I will have to proceed by simple affirmation.

First, HRsL engages the responsibility of the State. It is the relationship between those who exercise power (executive, legislative or judicial) and those who are likely to be affected by its exercise. The protection it offers is generally not limited to citizens or nationals. HRsL not only requires the state to respect the law, but also to protect people from violations.

Second, not all laws are treated the same. The HRsL is subject, in the same way as the DCA, to the rules governing the functioning of the international legal system (for example, sources, the law of treaties, immunities). There is, however, a difference in emphasis in how the DCA and HRsL treaties are interpreted. Purposive interpretations, that is, readings that account for the object or objectives of the law, play a more important role in HRsL than DCA.

Third, as any legal system develops, it is normal for originally distinct domains to collide or overlap. This is likely to happen increasingly in international law, and it is not limited to the relationship between DCA and HRsL.

Finally, HRsL exists as such. It is not an international form of national civil liberties.

The applicability of HRsL to armed conflict

Previously, when a war broke out, the application of treaties between the parties was suspended. The United Nations International Law Commission, in its report on the Effects of armed conflicts on treaties, rebutted the presumption. Treaties remain applicable unless their content makes it impossible or a contrary intention can be demonstrated.

Specifically, most major international and regional human rights treaties relating to civil and political rights, by their express terms, make it clear that they remain applicable in times of armed conflict. In situations of “[war or other] of public emergency”, certain rights can be modified, but not removed by derogation. Other rights (eg the prohibition against arbitrary killing, torture, cruel, inhuman or degrading treatment or punishment) are not subject to derogation. They therefore remain applicable, and the key question is how the concepts are interpreted.

Political bodies (e.g. UN Security Council, UN General Assembly, UN Human Rights Council) repeatedly call on parties to armed conflict to respect their obligations in under international humanitarian law (the UN speaks on behalf of the DCA) and the HRsL. These bodies repeatedly authorized or approved mandates referring to both sets of rules and did not limit the thematic mandates, which had been interpreted by mandate holders to include situations of armed conflict.

The International Court of Justice, in its advisory opinions on the Legality of the threat or use of nuclear weaponsthe Legal consequences of the construction of a wall in the occupied Palestinian territoryand the disputed case Armed activities on the territory of the Congo (Democratic Republic of the Congo (DRC) v. Uganda), clarified that the existence of an armed conflict does not “extinguish” HRsL. Every relevant HDR body that has considered the issue, whether treaty-based or charter– (i.e. the UN special procedures), took the same position.

The overwhelming evidence is that HRsL remains applicable when DCA is also applicable. Rather, the question is how the interpretation of HRsL is affected by DCA (see post 2).

The applicability of HRsL outside the national territory

This is a much harder topic because the question allows for a non-binary answer. It should be noted, at the outset, that when State A is present in the territory of State B, with its consent, A is subject to the international legal obligations of the latter. B cannot allow behavior that is forbidden to him. This concerns B’s obligation with regard to what happens in its territory. Rather, this section is concerned with the extent to which State A assumes its own human rights obligations when acting extraterritorially, whether with or without consent.

Two questions must be distinguished. Firstly, does the HRsL apply outside the national territory at all? Second, if so, to what extent does it apply?

When a State assumes an international legal obligation, it is bound to give effect to it wherever it takes relevant measures. The content of the rule and the nature of the action to be taken may mean that it only has effect within the national territory. When the obligation concerns an executive action, it is likely that the State will have to apply the content both inside and outside the national territory. It would be reprehensible to authorize a State to torture on condition that it does so outside the national territory.

The political organs of the United Nations have repeatedly called on parties to an armed conflict occurring outside the territory of one of them to respect the DCA and the HRsL. Examples include Israel and the occupied territories and Russia in Georgia and Ukraine. The International Court of Justice, in the second case cited above, concluded that the HRsL was applicable in occupied territory. In DRC c. Ugandahe concluded that HRsL was applicable both in the occupied province of Ituri and in other areas of the DRC.

Approaching the issue generally, HRsL mechanisms have concluded that HRsL applies, in principle, to acts (and sometimes omissions) of state officials outside the national territory. When deciding on an individual complaint, these bodies are faced with a question of competence rather than a question of applicability as such. The State has obligations only towards those who come under or are subject to the jurisdiction of the State. The precise wording varies in different HRsL treatises.

Based on the case law of the International Court of Justice and relevant HRsL bodies, two issues are clear while the other is somewhat unclear.

Territory control

When a state controls foreign territory, it has HRsL obligations to those in the territory. The extent of HRsL’s obligations will depend on the activities over which the state exercises control. The longer and more sedentary the occupation, the more it is demanded of the state. The notion of territorial control includes, but is not limited to, belligerent occupation within the meaning of the DCA. It includes very small areas of territory (for example, a roadblock; see Jaloud c. Netherlands) and very short-term control. It also extends, according to the European Court of Human Rights (ECHR), to situations in which a State exercises “decisive influence” over the authorities in charge of the territory, such as Russia over Transnistria.

Control over the person

All relevant HRsL bodies agree that where a person is under the physical control (i.e. detained) of the authorities of State A in the territory of B, A is obliged to grant all relevant rights . This mainly concerns the detention regime, the prohibition of ill-treatment and, in some cases, access to family.

Other Situations

If a soldier from State A deliberately kills an obviously unarmed person in the territory of B, does the victim come under or subject to the jurisdiction of State A? The case law of the ECHR is inconsistent and inconsistent. He may choose to deny his jurisdiction when the real problem is to establish the facts (for example Georgia v. Russia (No. 2)). Its lack of plausible justification may explain why it extends the concept of control over territory to include very small areas and situations of “decisive influence”. The approach of the UN Human Rights Committee, which was formulated only in a general comment, is in line with the principles of state responsibility. In General Comment 36, by. 63, he said,

[A] The State party has an obligation to respect and ensure the rights guaranteed by article 6 of all persons within its territory and all persons subject to its jurisdiction, that is to say all persons over whom it has effective power or control over the enjoyment of the right to life.… This includes persons located outside any territory effectively controlled by the State, whose right to life is nevertheless impacted by its military or other activities in a direct and reasonably foreseeable manner.

States have HRsL obligations outside the national territory, but the extent and scope of these obligations will depend on the extent of state control over the relevant activity, individual or territory.

Conclusion

In summary, it is widely recognized that neither armed conflict nor the extraterritorial character of State activity extinguishes human rights obligations. The plain language of HRsL instruments, expressions of influential policy bodies and decisions of respected adjudicative bodies repeatedly contemplate a complementary rather than exclusive relationship between DCA and HRsL. In the meantime, courts have clearly and consistently established that the HRsL generally applies extraterritorially to areas and persons over which states exercise control, even if the notion of control is not yet fully established.

Having addressed applicability, the question of how additional HRH obligations are to be interpreted and put into practice arises importantly. The second article in this series examines how HRsL organizations have approached this topic.

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Françoise Hampson is Emeritus Professor of Law at the University of Essex.

Photo credit: Cap. Alex Flynn, US Army