Eclectic but Effective– Dissecting the Confluence between International Human Rights Law and International Humanitarian Law
Dr. Yutaka Arai-Takahashi, University of Kent
Introduction
The recognition that international human rights law (IHRL) continues to apply during armed conflict (and entails binding effect on occupying powers even extra-territorially) leaves lingering uncertainties over the relationship between international humanitarian law (IHL) and IHRL. Commentators have toiled at searching for existing legal principles or devices that can help systematically explicate this symbiotic interplay of the two systems of law.
The genealogy of these two disciplines of international law palpably demonstrates that both are designed to realise the similar objectives unfalteringly anchored in humanity-based ethos. Their intrinsic objective is to recognise and enhance rights on behalf of individual persons rather than creating reciprocal rights and obligations premised on the inter-State relationship.1 That said, even after the perceived barrier keeping them apart is deemed to become more porous, the dire reality that IHL requires an ethically intractable balance between military necessity and humanity looms.2 There lurks a residual but intrinsic difference between the two systems of law.
The Complementary Relationship between IHL and IHRL
The case-law and documents fashioned out by international tribunals and the monitoring bodies of human rights treaties are abundant in recognising the sustained relevance of IHRL during armed conflict.3 This in turn has generated a growing measure of “substantive parallelism” in
1 See Article 60(5) of the Vienna Convention on the Law of Treaties.
2 See, for instance, T. Meron, “The Humanization of Humanitarian Law”, (2000) 94 AJIL 239 at 240.
3 See, inter alia, International Court of Justice (ICJ), Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, paras 102-113; Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), 19 December 2005, paras
179-180 and 216; European Court of Human Rights (ECtHR), Isayeva, Yusupova and Bazayeva v. Russia, 24 February 2005; Isayeva v. Russia, 24 February 2005; Inter-American Commission on Human Rights (IACmHR), Juan Carlos Abella v. Argentina, Case 11/137, Doc. OEA/Ser.L/V/II.98, para. 158 (13 April 1998); African Commission on Human and Peoples’ Rights (AfCmHPR), Civil Liberties Organisation v.
the material scope of application of the two systems.4 The normative paradigm moulded by the coalescence of IHRL and IHL is buttressed by the jus cogens nature of many human rights norms5 and the enigmatic neologism furnished by the International Court of Justice (ICJ),6 the
“intransgressible principles of humanitarian law”,7 whose violation may yield the legal outcomes envisaged by Article 41 of the International Law Commission’s (ILC’s) Draft Articles on Responsibility of States for Internationally Wrongful Acts (2001).
The relationship between the two disciplines of international law is often portrayed as complementary, and not mutually exclusive.8 Indeed, strictly divorcing these two branches of international law from each other may sap an edifice of the common humanitarian objectives.9 The complementary character of this interaction can be corroborated by Article 72 of the First Additional Protocol (API), which stipulates that “[t]he provisions of this Section [“Treatment of Persons in the Power of a Party to the Conflict”] are additional to the rules concerning humanitarian protection of civilians and civilian objects in the power of a Party to the conflict contained in the Fourth Convention, particularly Parts I and III thereof, as well as to other applicable rules of international law relating to protection of fundamental human rights during
Chad (74/92), Decision, 11 October 1995, para. 22. See also Human Rights Committee (HRC), General Comment No. 31 (2004) on the nature of the general legal obligation imposed on states parties to the Covenant (Art. 2), UNDoc.CCPR/C/21/Rev.1/Add.13, para. 11 (26 May 2004).
4 N. Prud’homme, “Lex Specialis: Oversimplifying a More Complex and Multifaceted Relationship?”, (2007) 40 Israel L.Rev. 356, at 364-5.
5 In the Coard case, the IACmHR affirmed “an integral linkage” between the two bodies of international law based on their “common nucleus of non-derogable rights and a common purpose of protecting human life and dignity”: IACmHR, Coard et al. v. US, Case 10.951, Report No. 109/99, 29 September 1999, para. 39.
6 See A. Bianchi, “Human Rights and the Magic of Jus Cogens”, (2008) 19 EJIL 491 at 502.
7 ICJ, Nuclear Weapons Advisory Opinion, supra n. 3, paras 79 and 159.
8 See C.M. Cerna, “Human Rights in Armed Conflict: Implementation of International Humanitarian Law Norms by regional Intergovernmental Human Rights Bodies”, in: F. Kalshoven and Y. Sandoz (eds), Implementation of International Humanitarian Law (1989) 31; H.-P. Gasser, “International Humanitarian Law and Human Rights Law in Non-International Armed Conflict: Joint Venture or Mutual Exclusion”, (2002) 45 German YbkIL 149-162, at 162; and Meron, supra n. 2.
9 T. Meron, Human Rights in Internal Strife: Their International Protection, (1987), at 28. See also F.
Hampson, “Using International Human Rights Machinery to Enforce the International Law of Armed Conflicts”, (1992) RDMDG 117.
international armed conflict”. In its General Comment No. 31 (2004) concerning the nature of general obligations under Article 2 ICCPR, the Human Rights Committee (HRC) stated that
“the Covenant applies also in situations of armed conflict to which the rules of international humanitarian law are applicable. While, in respect of certain Covenant rights, more specific rules of international humanitarian law may be specially relevant for the purposes of the interpretation of Covenant rights, both spheres of law are complementary, not mutually exclusive.”10
Implications of the Lex Specialis Rule upon the Relationship between IHL and IHRL The ICJ’s jurisprudence marks the inexorably evolving trajectory to deal with implications of the lex specialis rule. As is well-known, its point of departure was in the Legality of the Threat or Use of Nuclear Weapons case where the ICJ resoundingly confirmed the complementary character of the two branches of international law. It held that “the protection of the International Covenant of Civil and Political Rights does not cease in times of war, except by operation of Article 4 of the Covenant whereby certain provisions may be derogated from in a time of national emergency”.11 In so doing, the ICJ framed the operation of the lex specialis rule as a conflict-resolving principle. This was purported to rationalise giving prevalence to the IHL rules concerning the right to life over IHRL rules on the same subject-matter in case of their possible collision.
Several inferences can be drawn from the application of the lex specialis principle to the relationship between IHL and IHRL. First, it may be averred that during armed conflict and occupation, IHL rules would “systematically and invariably” debar the applicability of the concurrent IHRL rules en bloc, enabling States to circumvent their international obligations under the latter rules.12 This sweeping repercussion assumes that the ICJ’s reasoning in the Nuclear Weapons case can be extended beyond an issue of the right to life and embrace the entire relationship of the two systems. Some US publicists still follow this blinkered train of thought, asserting, even with moral equanimity, that IHRL is not applicable to situations of
10 HRC, General Comment No. 31 (Nature of the General Legal Obligation Imposed on States Parties to the Covenant), 29 March 2004, CCPR/C/21/Rev.1/Add.13, para. 11, emphasis added.
11 ICJ, Nuclear Weapons Advisory Opinion, supra n. 3, para. 25.
12 O. Ben-Naftali and Y. Shany, “Living in Denial: The Application of Human Rights in the Occupied Territories”, (2003) 37 Israel L. Rev. 17 at 56; and A. Bianchi, “Dismantling the Wall: The ICJ’s Advisory Opinion and its Likely Impact on International Law”, (2004) 47 German YIL 343, at 370-1.
armed conflict and military occupation.13 This contention, however, overlooks the capacity of IHRL to complement areas that are governed by IHL but hardly given specificity.14 It would also be oblivious of the specific “contextual character” of the lex specialis rule, which necessitates determining the interface between IHL and IHRL in casu.15
Second, taking the edge off the first approach, one can suggest that IHRL rules as the lex generalis be construed in the light of appropriate IHL rules that form lex specialis.16 A lex specialis supplementing a lex generalis does not overrule the latter, and they can be applied side by side, but simply with the lex specialis playing the greater role of the two systems of law.17 As a variation of this second approach, customary or conventional rules of IHRL can be directly applied to issues arising from armed conflict or occupation, with ample references to principles and standards that are clearly derived from conventional or customary IHL, but without expressly acknowledging the source (conventional or customary IHL) of such principles and standards. This approach does not rule out the concurrent operation of IHL and IHRL either.
Even so, its marked methodology is to integrate IHL rules systematically into the process of interpreting the rules of IHRL.18
13 See, for instance, M.J. Dennis, “Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation” (2005) 99 AJIL 119 at 139 and 141.
14 These areas include fair trial guarantees of captives in non-international armed conflict (NIAC), the notion of inhumane treatment, and freedom from arbitrary detention: Bianchi (2004), supra n. 12 at 371.
See also European Commission of Human Rights (ECmHR), Cyprus v. Turkey, Nos. 6780/74 and 6950/75, Commission’s Report of 10 July 1976, para. 313, (1982) 4 EHRR 482 at 532-533; and Diss.
Opinion, Sperduti and Trechsel, ibid., at 564, para. 6.
15 A. Lindroos, “Addressing Norm Conflicts in a Fragmented Legal System: The Doctrine of Lex Specialis”, (2005) 74 Nordic JIL 27 at 49; and H. Krieger “A Conflict of Norms: The Relationship between Humanitarian Law and Human Rights Law in the ICRC Customary Law Study”, (2006) 11 JCSL 265 at 271.
16 Prud’homme, supra n. 4 at 369.
17 J. Pauwelynn, Conflict of Norms in Public International Law: How WTO Law Relates to Other Rules of International Law (2003) at 410.
18 See, for instance, ECtHR, Isayeva, Yusupova, and Bazayeva v. Russia (the principles of proportionality and precaution read under Article 2 ECHR and recognised as parcel of the customary rules applicable in NIAC): Judgment of 24 February 2005, paras 174-200.
Third, it may be suggested that the ICJ in the Nuclear Weapons case did not consider the lex specialis rule to entail an exclusionary effect on the application of IHRL taken as a whole.
According to this view, the ICJ focused only on the specific issue of arbitrary deprivation of life during armed conflict without prejudice to the co-applicability of the two systems in general.
Undoubtedly, the tenor of the ICJ’s reasoning in the subsequent cases gives succour to the second and third approaches. Indeed, it bolsters the thesis that IHL constitutes the lex specialis complementa (complementary) rather than the lex specialis derogata (derogatory) of IHRL.19 One can point out that sound legal policy requires effectively capitalising on synergetic and cross-fertilizing harmony of the two systems of law.20
In its Wall Advisory Opinion, the ICJ advanced a slightly more fine-tuned understanding of the normative cross-over between IHRL and IHL:
As regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law. In order to answer the question put to it, the Court will have to take into consideration both these branches of international law, namely human rights law and, as lex specialis, international humanitarian law.21
This dictum had yet to clarify whether the ICJ admitted that in its previous Nuclear Weapons Advisory Opinion, it had taken (or appeared to take) the lex specialis rule entirely out of context.
Nor did it articulate a delicate shade of an overlap between IHL and IHRL. Some issues or fields are primarily or predominantly subject to a dense regulatory framework of IHL or IHRL while others may only largely be governed by IHL or IHRL.
In the subsequent case of Congo v. Uganda, the ICJ rehearsed the above nuanced reasoning to elucidate the correlation between the two branches of international law22 and even carried it
19 Centre Universitaire de Droit International Humanitaire (CUDIH), Expert Meeting on the Supervision of the Lawfulness of Detention During Armed Conflict, Geneva, 24-25 July 2004, at 45.
20 Ben-Naftali and Shany, supra n. 12 at 56.
21 ICJ, Wall Advisory Opinion, supra n. 3, para. 106.
22 Case Concerning Armed Activities on the Territory of the Congo, supra n. 3, paras 216-20.
over to the dispositif of the judgment.23 Yet, intriguingly, it apparently opted not to mention the lex specialis rule as such.24
The Lex Specialis Rule and the Fragmented Nature of International Legal Systems
The lex specialis rule can be postulated as being anchored in the idea of “a particular fiction of unified state conduct” (or “the universalistic school”) that presume States to act with “a unified legislative will” when concluding treaties or installing customary rules.25 Analogous to the systematic normative pyramid envisaged by Kelsen, the structure of ideas contemplated by the universalists presupposes the coherent and unitary legal order on which both specific and more general legal sub-systems can fall back in quest for legitimation and validation.
Prima facie, the system of international law, as opposed to municipal laws, is so fragmented and decentralised that it is presented as one in which a variety of norms derived from discrete branches are not organically connected from each other and are found in quasi-hermetical isolation, eluding coherent legal order.26 This may cast doubt on the viability of constructing a systematic, special-general relation in the system of international law. It is in this light that a proposal is put forward to resist applying the lex specialis rule in such a manner as to displace one entire legal framework with another in a preconceived fashion.27 Instead, emphasis ought to be shifted to the contextual nature of the lex specialis rule and to its pertinence only in connection to the application of a specific rule in a concrete circumstance.28 To put differently, the idea of lex specialis does not call for a wholesale displacement of IHRL by IHL. Instead, it is proposed that it should apply to the interplay between individual legal concepts and rules
23 Ibid., para. 345(3).
24 Ibid., para. 216.
25 B. Simma and D. Pulkowski, “Of Planets and the Universe: Self-Contained Regimes in International Law”, (2006) 17 EJIL 483, at 489.
26 P. Sands, “Treaty, Custom and the Cross-Fertilization of International Law”, (1998) 1 Yale Hm.Rts.&Dev.L.J. 85 at 88; and Lindroos, supra n. 15 at 28.
27 A. Orakhelashvili, “The Interaction between Human Rights and Humanitarian Law: Fragmentation, Conflict, Parallelism, or Convergence?”, (2008) 19 EJIL 161 at 181-2.
28 Lindroos, supra n. 15 at 42 and 44.
within the regimes of IHRL and IHL rather than to the correlation between the two regimes taken as a whole.29
The Principle of Systemic Integration
A methodology to address the intertwined relationship between IHL and IHRL can be spotlighted by one of the established rules on interpreting treaties set forth under Article 31(3)(c) of the Vienna Convention on the Law of Treaties.30 This provision reads that “There shall be taken into account together with the context…[a]ny relevant rules of international law applicable in the relationships between the parties”.31 The importance of construing treaties within the context and in the “normative environment” of any such “relevant rules of international law” suggests that the issue of systematizing treaty relations is integrated into the process of treaty interpretation and legal reasoning.32 Indeed, such a purposeful interpretation helps foster underlying values of the international community.33 That provision reifies the principle of “systemic integration”. In essence, treaties ought to be construed against the background of all the relevant rules and principles of international law, on the premise that international law is comprehended as a system.34 Such “relevant rules of international law”, which constitutes a mandatory part of the interpretive process,35 unmistakably encompass
29 P. Alston, J. Morgan-Foster and W. Abresch, “The Competence of the UN Human Rights Council and its Special Procedures in relation to Armed Conflicts: Extrajudicial Executions in the ‘War on Terror’”, (2008) 19 EJIL 183 at 192; and Orakhelashvili, supra n. 27 at 181-182.
30 For assessment of this provision, see Sands, supra n. 26; and C. McLachlan, “The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention”, (2005) 54 ICLQ 279.
31 Vienna Convention on the Law of Treaties, Article 31(3)(c), emphasis added. See also ECtHR, Loizidou v. Turkey, Judgment of 18 December 1996, A 310, individual dissenting opinion of Judge Pettiti, at 43.
32 ILC, Fifty-eighth session, A/CN.4/L.682, 13 April 2006, Fragmentation of International Law:
Difficulties arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission, Finalized by Martti Koskenniemi, paras 413, 415 and 419, 421, 423.
33 Ibid., paras 423, 478 and 480.
34 Ibid. See also Bianchi (2008) supra n. 6 at 504 (discussing legal effects of jus cogens in the light of the principle of systemic integration).
35 Sands, supra n. 26 at 102-103. See also ILC, supra n. 32, para. 425.
concordant (or significantly overlapping) customary rules, including customary IHL and customary IHRL.36
The principle of systemic integration is of special pertinence to the oft-neglected requirement attached to the derogation clause of human rights treaties: in emergency circumstances, States invoking derogation measures must ensure that these measures are consonant with their “other obligations” under international law.37 Again, such “other obligations” encompass obligations under IHL,38 and this attests to the importance of not reading human rights norms in clinical isolation.
The Martens Clause as a Device for Integrating Customary IHRL
In a quest for a viable methodology that can account for reliance placed on more elaborate standards of IHRL in interpreting IHL rules, one may turn to the Martens Clause. It is submitted that this sui generis Clause should be deployed as an interpretive gimmick for funnelling, albeit not as a legal sleight of mechanically translating, customary human rights rules into the body of customary IHL. It can be surmised that the gap-filling role of the Martens Clause inverses the traditional hypothesis of international law as affirmed in the Lotus case,39 the postulate that international law can be construed as giving States ample latitudes of discretion and minimal constraints on their conduct.40 With regard to IHL and IHRL, the fact that acts or omissions are not expressly forbidden by law does not necessarily warrant their legality.41
36 Sands, ibid., at 92.
37 ICCPR, Article 4(1); ECHR, Article 15(1); and ACHR, Article 27(1). See also ECtHR Brannigan and McBridge v. UK, Judgment of 26 May 1993, A 258-B, paras 67-73 (recognising this obligation by reference to Article 4 ICCPR).
38 HRC, General Comment No. 29, CCPR/C/21/Rev.1/Add.11, 31 August 2001, para. 11. See also Orakhelashvili, supra n. 27 at 165.
39 Permanent Court of International Justice (PCIJ), Lotus (France v. Turkey), Judgment, 7 September 1927, [1927] PCIJ Rep. Series A, No. 10, at 18-19.
40 Y. Shany, “Toward a General Margin of Appreciation Doctrine in International Law?”, (2005) 16 EJIL 907, at 912 and 917.
41 L. Doswald-Beck, “International Humanitarian Law and the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons”, (1997) 823 IRRC 37 at 52.
A special hallmark borne by this approach is to fall back on the coalescence of customary IHL rules and human rights norms, and on the generative nature of customary law.42 Surely, as a caveat, it should be recalled that “notions developed in the field of human rights can be transposed in international humanitarian law only if they take into consideration the specificities of the latter body of law”.43 Still, the specificities of IHL such as military necessity and proportionality can be duly accommodated by the built-in devices of human rights treaties, such as the derogation and limitation clauses.44
An Eclectic Approach – the Principle of More Favourable Protection
It is generally the elaborate and detailed rules and subtests of IHRL that can serve to fill normative lacunae (as in case of lawful collateral civilian casualties). Still, it can be put forward that a properly constructive approach be to tap into any rules that give greater effectiveness to safeguarding individual liberty, be they IHL or IHRL.45 The proposed methodology has a merit of moving away from a traditional thesis locked in sterile arguments and even squandered in solipsistic wrangling over the lex specialis correlation between IHL and IHRL. It is purported to optimise the cross-fertilising effect of the interplay of the two systems of law.46
The law-making character of human rights treaties seems to rationalise what may cacophonously be termed as the “principle of more favourable protection”.47 According to this principle, among the relevant rules of IHRL, the rule affording the most effective and enhanced guarantees to an individual person must prevail. This principle is embodied under Article 5(2)
42 Admittedly, this methodology encounters a vexed question indicated by Baxter (his eponymous paradox) in identifying customary norms in connection with a widely ratified multilateral treaty.
43 ICTY, Prosecutor v. Kunarac et al., IT-96-23-T, Judgment of 22 February 2001, para. 471.
44 Orakhelashvili, supra n. 28 at 182.
45 This approach may lend itself to an reversal of the lex specialis rule, with IHL rules that tolerate greater operational mistakes being displaced by the requirements of IHRL that exact a more compelling standard of care and diligence in safeguarding civilian lives: Y. Shany, “Human Rights and Humanitarian Law as Competing Legal Paradigms for Fighting Terror”, Hebrew University International Law Forum, Research Paper No. 23-09, at 26 [heinafter Shany (2009b)].
46 See, for instance, Background Paper by L. Doswald-Beck, in: CUDIH, supra n. 20, at 9.
47 S.A. Sadat-Akhavi, Methods of Resolving Conflicts between Treaties (2003), at 213-232; and Orakhelashvili, supra n. 27 at 167-8.
ICCPR48 and its equivalent provisions under regional human rights treaties.49 It is proposed that this principle be deployed to spell out the systematic linkage between IHL-IHRL. This principle would justify favouring a rule more protective of individual victims, be it derived from IHL or from IHRL, provided that a specific context of the case should be duly taken into account. Indeed, the principle of more favourable protection is explicitly corroborated in Article 75(8) API, which states that “[n]o provision of this Article may be construed as limiting or infringing any other more favourable provision granting greater protection, under any applicable rules of international law, to persons covered by paragraph 1”. Plainly, such applicable rules of international law embrace both treaty and customary IHRL.50
Whether to impart primacy to specific rules of IHL or those of IHRL will boil down to the nature of the specific issues and areas regulated by the two systems of law, and in particular, on the precise and dense nature of the regulatory paradigm. In other words, in case of uncertainty over the choice of the legal framework, it is reasonable to err on the side of affording greater safeguards to individual persons. For instance, in relation to rules concerning persons who find themselves in the power of an authority, IHRL supplies more entrenched protections than IHL and should be given prevalence.51 In the context of non-international armed conflict (NIAC), given the absence of express rules on combatant and status of prisoners of war under IHL, examinations of the right to life would be unfeasible without recourse had to IHRL.52 On the other hand, this argument suggests that IHL rules on conduct of hostilities furnish a more precise and preferred legal regime of targeting during international armed conflict (IAC).53
48 Article 5(2) of ICCPR reads that “[t]here shall be no restriction upon or derogation from any of the fundamental human rights recognized or existing in any State Party to the present Covenant pursuant to law, conventions, regulations or custom on the pretext that the present Covenant does not recognize such rights or that it recognizes them to a lesser extent”.
49 ACHR, Article 29; ECHR, Article 53; Commonwealth Convention on Human Rights and Fundamental Freedoms, Article 33; Arab Charter on Human Rights, Article 3(a). See also IACmHR, Juan Carlos Abella v. Argentina, Case 11.137, 18 November 1997, OEA/Ser.L/V/II.98, paras 164-165.
50 J. Pejic, “Procedural Principles and Safeguards for Internment/Administrative Detention in Armed Conflict and Other Situations of Violence”, (2005) 858 IRRC 375, at 378.
51 Doswald-Beck, supra n. 41.
52 N. Lubell, “Challenges in Applying Human Rights Law to Armed Conflict”, (2005) 860 IRRC 737 and 746-50.
53 Prud’homme, supra n. 4, at 374.
Criteria for Discerning Appropriate Rules
Admittedly, this eclectic (albeit not à la carte) approach may be vulnerable to the charge that it lacks systemic coherence. Nevertheless, some guidance can be suggested with a view to facilitating the selection of a specific rule within an appropriate legal framework.54
First, it can be contended that IHRL proffers a suitable legal avenue with respect to persons involved in NIAC.55 It is suggested that in areas where relevant IHL rules are devoid of specific and detailed elaborations, as in the instance of NIAC, 56 the application of the lex specialis rule should be excluded in favour of the operation of IHRL.57 Support for this argument can be found in the preambular paragraph 2 of the Second Additional Protocol (APII), which specifically highlights the linkage between the Protocol and IHRL. Its statement that
“international instruments relating to human rights offer a basic protection to the human person”
reinforces the concurrent applicability of IHRL.58 Still, much of uncertainty and controversy remains in NIAC. For instance, it is not obvious to what extent IHRL can come to aid civilians who have taken direct part in hostilities in the realm of NIAC (persons who would be classified, in the context of IAC, as “unprivileged belligerents” or more apocryphally as “enemy combatants”). Similarly, there lack guidelines for the extraterritorial application of IHRL in a volatile, post-occupation territory beset with NIAC of cross-border genre.59
Second, it is suggested that the search for an appropriate legal paradigm should turn on the nature of the human rights at issue, in particular: (i) non-derogable or derogable nature; and (ii) whether those rights entail positive duties on States parties to the armed conflict (especially, on occupying powers). Many IHL rights lend themselves to positive obligations. Yet, it is highly equivocal whether positive duties emanating from economic, social and cultural (ESC) rights, such as those embodied under the International Covenant on Economic, Social and
54 Ibid., at 391.
55 Krieger, supra n. 15 at 273-275.
56 See D. Turns, “At the ‘Vanishing Point’ of International Humanitarian Law: Methods and Means of Warfare in Non-International Armed Conflict”, (2002) 45 German YbkIL 115-148.
57 Krieger supra n. 15 at 273-275.
58 See also Pejic supra n. 50 at 378-379.
59 For the proposal to apply extraterritorial responsibility for undertaking positive duties of human rights even in such cases, see. Y. Shany, “The Law Applicable to Non-Occupied Gaza: A Comment on Bassiouni v. Prime Minister of Israel, Hebrew University International Law Forum, Research Paper No.
13-09, at 11, 12 and 17 [hereinafter Shany (2009a)].
Cultural Rights (ICESCR) etc, are imposed on States parties to armed conflicts. At least in occupation law, such opacity can be dissipated by reading those positive obligations in the duties incumbent on an occupying power to “restore and ensure public order and safety” within the meaning of Article 43 Hague Regulations or to “fulfil its obligations under the present Convention” under Article 64 of the Fourth Geneva Convention (GCIV).
In the Wall Advisory Opinion, the ICJ asserted the continued applicability of the ESC rights in the occupied territories on the ground that Israel entertained “territorial jurisdiction” (hence on the assumption that Israel exerted at least effective control). It held that:
The International Covenant on Economic, Social and Cultural Rights contains no provision on its scope of application. This may be explicable by the fact that this Covenant guarantees rights which are essentially territorial. However, it is not to be excluded that it applies both to territories over which a State party has sovereignty and to those over which that State exercises territorial jurisdiction.60
Even so, the guidance furnished by the Court as to the extraterritorial applicability of ESC rights is confined only to its emphasis on the territorial jurisdiction, which suggests the circumstances of occupation premised on effective control.
Extraterritorial Implications of IHRL
The ICJ’s dictum in the Wall case leaves two crucial ramifications on obligations to give effect to IHRL. First, by way of withdrawal or disengagement of the occupying armed forces, some areas of the occupied territories cease to be defined juridically as under occupation.61 A gradual transfer of powers to a local administration in the occupied territory may be envisaged within the framework of occupation laws.62 Yet, an ultimate authority retained by the disengaging occupant and its ability to redeploy troops at a short notice(or even “within a reasonable time to
60 ICJ, Wall Advisory Opinion, supra n. 3, para. 112, emphasis added.
61 See Israel, Petition for an Order Nisi and an Urgent Request for Injunction, Jaber al Bassiouni Ahmed et al v. The Prime Minister and Minister of Defence, HCJ 9132/07, 28 October 2007 [Gaza Fuel and Electricity case]; and Shany (2009a), supra n. 59.
62 See ICRC’s Commentary to GCIV, at 62-63.
make the authority of the occupying power felt”)63 are considered sufficient to continue labelling it as the occupying power under IHL.64
Second, in case one agrees to determine effective control within the meaning of Article 43 Hague Regulations on a case-by-case basis by reference to specific areas of the occupied land, then the eruption of hostilities might absolve the occupying power of the obligations under IHRL. Surely, the temporal loss of some parts of the occupied land or a resurgence of hostilities does not necessarily terminate the juridical status of occupation as such. It is to be recalled that in the Naletilić case, the ICTY held that sporadic local resistance, even successful, does not affect the reality of occupation”.65 Even so, the outbreak of hostilities that may trigger the application of the IHL rules on conduct of hostilities would diminish the operational capacity of the occupying power to fulfil positive duties derived mainly from ESC rights.
Conclusion
The approaches emergent in international and national case-law on IHRL reveal a willingness to apply subtests originating in IHRL to the assessment of collateral civilian casualties that occurred in the midst of hostilities. Such salient subtests include the doctrine of the less restrictive alternative,66 a “compelling” test of necessity (corroborated by the standard of proof
63 ICTY, Prosecutor v. Naletilić, Case No. IT-98-34-T, Judgment of 31 March 2003, para. 217 (reflecting the position of the US Field Manual 27-10 (1956), sec. 356). See alsoG. von Glahn, The Occupation of Enemy Territory: A Commentary On The Law And Practice Of Belligerent Occupation (1957) at 28-29..
64 See Human Rights in Palestine and Other Occupied Arab Territories, Report of the United Nations Fact Finding Mission on the Gaza Conflict, 25 September 2009, UN Doc. A/HRC/12/48, para. 279 (“Goldstone Report”) (referring to the occupied status of Denmark during World War II, despite the local administration left in place); and Israel, Tsemel v. Minister for Defence, HCJ 102/82, 37(3) Piskei Dinn 365 at 373-374; as cited in: Y. Shany, “Faraway, so Close – the Legal Status of Gaza After Israel’s Disengagement”, (2005) 8 YbkIHL 369 at 376.
65 ICTY, Prosecutor v. Naletilić et al., IT-98-34-T, Judgment, Trial Chamber, 31 March 2003, para. 217.
66 See, for instance, Israeli Supreme Court, HCJ 769/02, Public Committee against Torture in Israel v.
Israel (Targeted Killings judgment), 11 December 2005, para. 60.
“beyond reasonable doubt”),67 the standard of due diligence,68 and the procedural requirements of “prompt, thorough and effective” inquiries into circumstances of allegedly unlawful killing.69
Nonetheless, these approaches, which lean toward the least freedom-curbing measures, may risk divorcing the projected normative outcomes from operational realities.70 On this matter, it is germane to recall Koskenniemi’s observation that “However desirable it might be to discard the difference between peace and armed conflict, the exception that war continues to be to the normality of peace could not be simply overlooked when determining what standards should be used to judge behaviour in those (exceptional) circumstances”.71 It is such fundamental differences in the underlying rationales of IHRL and IHL that consistently demand specific contextual assessment in order to identify specific standards and principles that can afford greater effectiveness in guaranteeing rights of individual persons caught in extraordinary circumstances of armed conflict and occupation.
Overall, the impact of both conventional and customary IHRL upon the application of IHL is decisive for tilting the innate balance poised between two polar opposites of military necessity and humanitarian ethos in favour of the latter.72 The penchant of IHRL to make an incremental headway in stepping into hitherto exclusive realms of IHL rules on conduct of hostilities supplies a good peg to hang a dialectic and dynamic discourse on how to achieve convergence of these two disciplines of law.73
67 ECtHR, Isayeva v. Russia, Judgment of 24 February 2005, paras 173 and 177; and Isayeva, Yusupova and Bazayeva v Russia, Judgment of 24 February 2005, paras. 169 and 172.
68 See Goldstone Report, supra n. 64, paras 861-865.
69 Ibid., para. 866.
70 Shany (2009b), supra n. 45, at 21-24 and 26.
71 ILC, supra n. 32, para. 104.
72 Ben-Naftali and Shany, supra n. 12, at 57.
73 Lindroos, supra n. 15, at 48 and 62.
