The relationship between international humanitarian law IHL and

The relationship between international humanitarian law (IHL) and human rights law ( IHLR) Cecilie Hellestveit

• A group of insurgents (Beta) control a valley in the territory of State A, and there is an armed conflict between State A and Beta. All insurgents are nationals of State A. Following a night operation with ground troops and air-assistance into insurgent territory in order to free captives of Beta, State A kills four insurgents. Two hostages and one civilian are also killed in the fire figth that erupts. State A captures five insurgents during the operation. The State decides to bring one captive to trial for the murder of a prominent political figure in State A, while the other four are keept in security detention. The State keeps the four in detention without trial. An internal commission of the military of State A determines that two are members of Beta’s military wing. The other two have some kind of support function in the Beta – organization. THe State nevertheless decides to keep them as captives in case a swap of prisoners with other hostages

Questions • 1) Are any of the acts of State A goverened exclusively by IHL ? • 2) Are any of the acts of State A goverened exclusively by IHRL ? • 3) Which acts are goverened by both IHL and IHRL ? • 4) Is the conduct of State A unlawful under either regime ?

Two areas of international law: • International humanitarian law (IHL): • International human rights law (IHRL): • Agreements between states on how to conduct war, and on protection of enemy civilians and combattants • Agreements between states regulating the relationship between each state and the indivuduals over whom it has jurisdiction

Point of departure Civilians and combatants OUTSIDE control Persons under the control of a (State) party to the conflict IHL SOME RELATIONS : only IHL ( no IHRL or IHL triumphs) SOME RELATION : only IHRL ( no IHL or IHRL triumphs) IHRL SOME RELATIONS: both , but IHL or IHRL triuphs triumph : according to ” BEST PROTECTION”

IHL IHRL simple • Similar complex • Levels of interaction – Few but fundamental (objectives) • Different – many (means of protection) IHRL : equal rights IHL: distinction • Equal terms , different content : the need for a dictionary … « proportionality » , « civilian » « discrimination » – Lex specialis : IHL as rules that replace IHRL and / or influence the interpretation of IHRL – Lex generalis : IHRL as rules that influence the content of IHL – IHRL as rules that circumscribe the application of IHL. – Ius ad bellum-dimension: IHRL as a limit on the resort to the use of force

TREATIES IHL IHRL UN Declarations (1948) INTERNATIONAL BILL OF HR : ICCPR ICESCR CAT CERDAW CERD CRDP CRC 4 Geneva Conventions (1949) PROTECTION : Treatment of persons in the hands of the ememy Additional Protocols to the Geneva Conventions (1977) API : international : Means and methods of warfare against persons NOT in the hands of the enemy APII : non-international : Protection of persons in the hands of the enemy Hague Regulations (1907): rules of occupation REGIONAL CONVENTIONS: e. g: ECHR IACHR Af. CHR Ar. CHR CDHRI (Europe) (Americas) (Africa) (Arab w) (Muslims w Hague Convention (1954) Cultural objects Arms Conventions

International Human Rights Law Point of departure: Restrictions on arbitrary abuse of power by the state General treaties: • International Covenant on Civil and Political Rights (1966) • International Covenant on Economic, Social and Cultural Rights (1966) • European Convention on Human Rights and Fundamental Freedoms (1950) Special treaties: • Convention on Torture • Convention on Racial Discrimination • Convention on Discrimination of Women Regional treaties: • European Convention of Human Rights • African Charter on Human Rights and the Rights of Peoples • Inter American Convention of Human Rights

The duty bearers and the right holders International humanitarian law (IHL) Duty-bearers Rights-holders - STATES - OAG - INDIVIDUALS International humans rights law (IHRL) - INDIVIDUALS (persons) - STATES -STATES

Remedies and monitoring mechanisms under humanitarian law (IHL) and human rights law (HR) International humanitarian law (IHL) Duty-bearers Rights-holders Mechanisms STATES ICJ (& other treaty mechanisms) INDIVIDUALS National courts Nuremberg/Tokyo ICTY/ICTR ICC INDIVIDUALS International HR courts & other monitoring bodies (STATES) ICJ & HR Courts etc International STATES humans rights law (IHRL)

Examples of civil and political rights: • Freedom of speech / the right of expression • The right of assembly/organisation (freedom of association) • Freedom of religion/belief • Prohibition against torture and cruel and degrading punishment • The right to liberty and physical integrity (restrictions on the use of detention) • The rights of fair trial (Independent courts, presumption of innocence, etc. . ) • Prohibition against retroactive laws or judgements without legal basis Examples of economic, social and cultural rights: • The right to education • The right to health • Right to form and join trade unions • Right to reasonable working conditions • Right to housing • Freedom from discrimination • Race/ethnicity/national or social origin etc • Gender • Political opinion • Disabilities, age

Where do human rights apply? • Each state must ensure its human rights obligations • Not all states have agreed to take on all human rights obligations • Human rights for individuals correspond with human rights obligations of the relevant state • But: core human rights are customary law

Geographical application • IHL: applicable wherever a State Party (or other parties) to the conflict may be operating – when the situation qualifies as armed conflict • Human Rights: applicable to persons under the State’s territory and/or jurisdiction - in all situations (as a point of departure)

Scope of application of human rights treaties: • Art. 1, ECHR: The High Contracting parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention. • Art. 2, ICCPR: Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant…

Human Rights Committee: General Comment No. 31 (80) 2004 • 10. States Parties are required by article 2, paragraph 1, to respect and to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction. This means that a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party.

The European Court of Human Rights (on “jurisdiction”): • Art. 1, ECHR: The High Contracting parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention. • No dispute: jurisdiction can imply responsibility both inside and outside the territory of a State party

Jurisdiction: • The power of the State: - internally (at the national level) - externally (in relations with other states) - Jurisdiction reflects state sovereignty and equality of states - the basic principles of international law

Jurisdiction: Common understanding of jurisdiction: • Legislative power (prescriptive jurisdiction) • Judicial power (court jurisdiction) • Executive power (enforcement jurisdiction) ECHR: Autonomous interpretation: jurisdiction is closely linked to a state’s ability to secure (or violate) human rights (including, to a certain extent, abroad)

Extraterritorial human rights responsibility (jurisdiction) under the ECHR • • • Loizidou v. Turkey (1996) Bankovic (2001) Ôchalan (2005) Ilascu v. Moldova and Russia (2004) Issa et al v. Turkey (2004) Saramati (2007)

When do human rights apply? • Point of departure: Always • No qualification of situations (see f. ex. Articles 1 of the ECHR and Article 2 of the ICCPR) • What can states do when the security (or interests) of the state is threatened? – Limitations possible for some of the rights – Derogation in emergencies

Limitations: ECHR art. 8, 9, 10, 11 • Art. 8: Right to respect for privacy and family life • Art. 9: Freedom of thought and religion • Art. 10: Freedom of expression • Art. 11: Freedom of assembly

Limitations must be: • Prescribed by law • Necessary in a democratic society • In the interests of national security, territorial integrity or public safety • For the protection of public order, health or morals • For the protection of the rights and freedoms of others

No limitations with regard to: • Right to life (except those which are listed in article 2 and 15) • Prohibition of torture • Prohibition of slavery and forced labour • Right to liberty and security • Right to a fair trial • No punishment without law

Article 15 ECHR : – Derogation in time of emergency 1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law. 2. No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision. 3. Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed.

Requirements for derogation • Art. 15 (1). In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.

Non-derogable rights Art. 15 (2): No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, . . shall be made under this provision. “LAWFUL ACTS OF WAR” = Derogation does not prohibit deaths resulting from lawful acts of war.

Non-derogable rights (cont. ) Art. 15 (2) No derogation…or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision. - Art. 3: Prohibition against torture and inhuman and degrading treatment and punishment - Art. 4 (1): Prohibition against slavery - Art. 7: Prohibition against retroactive or nonexistent legislation as basis for punishment

Article 4 ICCPR 1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. 2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision. 3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.

More non-derogable rights under Art. 4 of ICCPR • 2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision. • • Art. 6: Right to life Art. 7: Torture and inhuman and degrading treatment Art. 8: Slavery Art. 11: Debt prison Art. 15: Non-existent of retroactive legislation Art. 16: Right to be recognised as a person before the law Art. 18: The freedom of religion

Examples of situations which led to derogation: • • • The military coup in Greece in 1967 The situation in Northern Ireland The situation in parts of Turkey The situation in Israel/occupied territories The attack on the US 11 Sept. 2001

ECHR Article 2 (Right to life): • Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

• ECHR Article 2 (continued): • Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: • (a) in defence of any person from unlawful violence; • (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; • (c) in action lawfully taken for the purpose of quelling of a riot or insurrection

No limitations on the rights to life No derogations from the right to life (ICCPR) • BUT : the right to life = protection against arbitrary deprivation of life. • « Arbitrary deprivation of life » = if an act violates obligations under IHL ( ICJ Nuclear Weapons) Observance of: – Combatant status required for killing – Principle of distinction – Principle of proportionality – No war crimes – No grave breaches

De facto situations Applicable IHL Applicable HR law Examples 1. International armed The four Geneva Non-derogable conflict conventions of 1949 (applicable) & the first additional human rights protocol of 1977 Tadic-case (ICTY) 2. Non-international The second armed conflict additional protocol between the state and of 1977 organized group with territorial control Spain 1936 -37 Colombia Iraq 2006 Somalia Non-derogable (applicable) human rights 3. Non-international Common Article 3 to Non-derogable armed conflict the four Geneva (applicable) between the state and conventions human rights groups or between groups Iraq 2005 and 2008 Somalia (US : overseas contingency operations against al-Qaida ) 4. Disturbances Riots/Unrest Disasters Others causes for state of emergency Non-derogable (applicable) human rights UK/US post 9/11 France 2005 5. Peace All International (applicable) human rights

Is there a gap between IHL and HRL? • Is there a situation where only nonderogable rights are applicable - and Common Article 3 is not?

IHL & IHRL : similarities • ultimate objective : protection of the human person – IHRL : from the state – IHL : from the warring parties

Protection of the human person IHL : protection IHRL : protection 1) - • of all persons within the jurisdiction of a State (regardless of citizenship) against abuse of power of State authorities, or failure by State authorities to ensure human rights Belligerents: Combatants DPH 2) Non-combatants: Belligerents hors de combat (Sick, wounded, surrendered, POWs and other captives) Civilians

IHL & IHRL : similarities • ultimate objective : protection of the human person – IHRL : from the state – IHL : from the warring parties • no reciprocity : not dependent on reciprocal observation by other parties in order to remain obligations and rights

IHL & IHRL : Limited role for reciprocity • RECIPROCITY : if your counterpart violates his obligations, you are free from complying • 1) means of enforcement • 2) restore balance BUT IHL & IHRL : • Two fathers make a vow never to beat their children. One beats his daughter. « If you dont stop beating your daughter, I will start to beat my daughter too ! » • - the daughter is innocent • - the daughter has no way to influence the other father • - there is no deterrent effect for the father • NO RECIPROCITY TO ENFORCE RULES OF PROTECTION OF THE HUMAN PERSON • IHL AND IHRL == EXCEPTION

Differencies IHL IHRL • Old law • Overall principles and very detailed rules • Very scarce institutions for compliance • Warring parties • Also persons not under control • Differentiation between persons • New law • General rules • Extensive international institutions for compliance • State as duty-bearer • Only persons under jurisdiction • Equal rights of persons

Need to be bilingual…. IHL IHRL • Civilian = enemy civilian • Civilian = inncocent bystander • Proportionality = wide concept • Proportionality = narrow concept • BUT : e. g • Humane treatment

BASIC PRINCIPLES OF INTERACTION • The closer to the battlefield application of IHL. • The further away from the battlefield, the more assertive application of IHRL • If person is under control of a State-actor ( i. e jurisdiction) IHRL will apply • If person is not under control of adversary IHL applies to the hostile interaction • Difference rules of COH protection

• Levels of interaction – Lex specialis : IHL as rules that replace IHRL and / or influence the interpretation of IHRL EX. RIGHT TO LIFE • REPLACE : Conduct of hostilites and the priviledge of combatancy • INFLUENCE « arbitrary » deprivation of life depends on IHL – Lex generalis : IHRL as rules that influence the content of IHL • ‘Humane treatment’, ‘fair trial’ in IHL = informed by IHRL standards – IHRL as rules that circumscribe the application of IHL. • When IHRL applies to a relationship : HIGHER THRESHOLD FOR APPLICABILITY OF (only) IHL – Ius ad bellum-dimension: IHRL as a limit on the resort to the use of force • IHRL functions as limits on the right of States to use force against their own citizens : the reasons for such use of force must be lawful under IHRL