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 the Beta – group is holding.

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

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

IHL  IHRL simple complex Similar Different 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 » Levels of interaction 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 REGIONAL CONVENTIONS: e.g: ECHR (Europe) IACHR (Americas) AfCHR (Africa) ArCHR (Arab w) CDHRI (Muslims w 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 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 Rights-holders International humanitarian law (IHL) STATES OAG INDIVIDUALS - STATES - OAG - INDIVIDUALS International humans rights law (IHRL) - INDIVIDUALS (persons)

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

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

Is there a gap between IHL and HRL? Is there a situation where only non-derogable 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 Belligerents: - Combatants DPH 2) Non-combatants: Belligerents hors de combat (Sick, wounded, surrendered, POWs and other captives) Civilians 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

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 Proportionality = narrow concept BUT : e.g Humane treatment Civilian = inncocent bystander Proportionality = wide concept

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

Lex generalis : IHRL as rules that influence the content of IHL 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