Human Rights Law and Armed Conflict

1. Human Rights Law and Armed Conflict Dr Marko Milanovic, University of Nottingham June 2013

2. Generally • No one thought-through how IHL and IHRL would interact when the treaties were drafted; minimal and contradictory drafting history; derogation clauses • Fragmentation of PIL • Connection to the question of extraterritorial application of HR treaties: flexibility, clarity

3. Derogation – Art. 4 ICCPR 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. No derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision. 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.

4. Derogation – Art. 15 ECHR 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. 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. 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.

5. Extraterritorial derogation? • Bankovic, para. 62: Although there have been a number of military missions involving Contracting States acting extra-territorially since their ratification of the Convention (inter alia, in the Gulf, in Bosnia and Herzegovina and in the FRY), no State has indicated a belief that its extra-territorial actions involved an exercise of jurisdiction within the meaning of Article 1 of the Convention by making a derogation pursuant to Article 15 of the Convention. …the Court does not find any basis upon which to accept the applicants’ suggestion that article15 covers all ‘war’ and ‘public emergency’ situations generally, whether obtaining inside or outside the territory of the contracting state. • Al-Jedda UKHL, para. 38 (per Lord Bingham): It is hard to think that these conditions [for a lawful derogation] could ever be met when a state had chosen to conduct an overseas peacekeeping operation, however dangerous the conditions, from which it could withdraw. The Secretary of State does not contend that the UK could exercise its power to derogate in Iraq (although he does not accept that it could not). It has not been the practice of states to derogate in such situations, and since subsequent practice in the application of a treaty may (under article 31(3)(b) of the Vienna Convention) be taken into account in interpreting the treaty it seems proper to regard article 15 as inapplicable.

6. IHL and IHRL • In classical international law, strict division between the law of war and the law of peace; not so today • States have affirmed the parallel application of IHL and IHRL in numerous official statements, and not the least in the derogation clauses of HR treaties • How to describe the relationship? • Fragmentation of international law ILC study

7. Lex specialis? • ICJ, Nuclear Weapons, para. 25: In principle, the right not arbitrarily to be deprived of one’s life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lexspecialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities. Thus whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the Covenant, can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself.

8. Two complementary regimes? • ICJ, Wall, para. 106: More generally, the Court considers that the protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation of the kind to be found in Article 4 of the International Covenant on Civil and Political Rights. 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 lexspecialis, international humanitarian law. • HRC, GenComm 31, the two ‘spheres of law are complementary, not mutually exclusive’

9. A relationship between norms, NOT between regimes • The complementarity thesis only an answer to the equally broad counter-claim that the two bodies of law are mutually exclusive • Interaction between norms and norm conflict • Killing, detention • Norm conflict resolution • Jus cogens • Conflict clauses – derogation • Art. 103 of the UN Charter • Norm conflict avoidance • Unresolvable norm conflict – Al-Saadoon

10. So what about lex specialis? • Art. 6(1) ICCPR Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. • Art. 2 ECHR 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. 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 a riot or insurrection.

11. Possible areas of unresolvable conflict • Killing – Israeli SC Targeted Killing case • Preventive detention and judicial review of detention • Transformative occupation, Article 43 of the Hague Regulations and Article 64 GC IV