Lecture 12 The relationship between international humanitarian law

Lecture 12 The relationship between international humanitarian law and human rights law

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

The Content of IHL is PROTECTION of 1) Combatants: - Soldiers/officers Others (participants in hostilities) 2) Non-combatants: - Soldiers hors de combat (Sick, wounded, surrendered, POWs) - Civilians

The Content of HRL is PROTECTION 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

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 • Etc. .

The duty bearers and the right holders Duty-bearers International humanitarian law (IHL) Rights-holders -STATES - INDIVIDUALS (including members of armed groups) -MEMBERS OF ARMED GROUPS -INDIVIDUALS International humans rights law (IHRL) - STATES - INDIVIDUALS (persons) -STATES

Remedies and monitoring mechanisms under humanitarian law (IHL) and human rights law (HR) Duty-bearers International STATES humanitarian law (IHL) MEMBERS OF ARMED GROUPS Rights-holders Remedies STATES ICJ and other treaties INDIVIDUALS (including members of armed groups) INDIVIDUALS International STATES humans rights law (HRL) INDIVIDUALS (persons) STATES National courts Nuremberg/Tokyo ICTY/ICTR ICC International HR courts and other monitoring bodies ICJ and 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

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, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision.

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.

• 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

“lawful acts of war” • Derogation does not prohibit deaths resulting from lawful acts of war: Observance of: – Combatant status required for killing – Principle of distinction – Principle of proportionality – No war crimes – No grave breaches

• European Court of Human Rights on Art. 2: • Isayeva v. Russia (2005): • Violation of article 2 because: “The Court considers that using this kind of weapon in a populated area, outside wartime and without prior evacuation of civilians, is impossible to reconcile with the degree of caution expected from a law-enforcement body in a democratic society. No martial law and no state of emergency has been declared in Chechnya, and no derogation has been made under Article 15. . ”

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.

Derogation measures must not discriminate • Article 4, ICCPR. …. . provided that such measures …. do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. • Discrimination grounds in article 2 and 26 of the ICCPR: race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status

• Implicitly permitted to take derogation measures which discriminates on the basis of • political or other opinion, national origin, property, birth or other status, • But: only provided that such measures are “strictly required by the exigencies of the situation”

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

International “case law” on derogation (examples) • European Court of Human Rights: – Lawless v. Ireland (1960) – Ireland v. United Kingdom (1978) – Brannigan and Mc. Bride v. UK (1993) – Aksoy v. Turkey (1996) • The Human Rights Committee: – Landinelli v. Uruguay (1978) – Salgar de Montejo v. Colombia (1979)

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)

Extraterritorial human rights responsibility in Peace Operations: (Saramati case) • Complaint from person detained in Kosovo against i. a. Norway and France - alleged violation of article 5 • Could derogate in ones’ own territory, but not abroad?

Human rights and peace operations • UK: Al-Skeini (House of Lords – back to High Court) • UK: Al-Jeddah (House of Lords - 29 October): – Not a protected person under GC IV (art. 4) – SCR 1546 (2004) v. art. 55 and 56 of the UN Charter – Art. 103: SC can override Human Rights except when they constitute jus cogens – Art. 103: SC can override IHL (art. 78, GC IV)

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

De facto situations Applicable IHL 1. International armed conflict (& colonial wars etc. ) The four Geneva Non-derogable conventions of 1949 (applicable) & the first additional human rights protocol of 1977 2. Non-international The second armed conflict additional protocol between the state and of 1977 organized group with territorial control Applicable HR law Examples Tadic-case (ICTY) Non-derogable (applicable) human rights Spain 1936 -37 Colombia 2004? 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 Lebanon 1980 s? Somalia? Iraq 2005? 4. Disturbances Riots/Unrest Disasters Others causes for state of emergency Non-derogable (applicable) human rights Iraq 2006? UK/US post 9/11 France 2005? 5. Peace All International (applicable) human rights

The relationship between human rights and humanitarian law in situations where both regimes apply: • Point of departure: HR law is always applicable • But: the principle of lex specialis applies – Advisory Opinion – Nuclear weapons (ICJ) – Advisory opinion - Wall in occupied Palestine territories (ICJ) – General Comment of Article 2 (Jurisdiction) (HR Committee)

Minimum protection: • All human rights which are – Non-derogable and not derogated from And: • Article 75 AP I (if IAC) • Common Art. 3 (if NIAC)