In Honor of Yoram Dinstein – Co-application of IHL and IHRL: Some Takeaways from the Ukraine and Gaza Wars

by | Apr 29, 2024

Co-application

Editors’ note: This post is part of a series to honor Professor Yoram Dinstein, who passed away on Saturday February 10, 2024. These posts recognize Professor Dinstein’s work and the significant contribution his scholarship has made to our understanding of international law.

The point that I am trying to drive home is that we—as practitioners of LOAC and academics traveling the same road—must do whatever we can to prevent the hostile takeover of LOAC by the human rights–niks. This is quintessential because what the human rights–niks would like to bring about is not merely a shift in emphasis but a regime change: a legal regime change that will revolutionize the field by making hostilities impossible to engage in effectively.

Yoram Dinstein, LOAC and Attempts to Abuse or Subvert It (2011).

The co-application of international humanitarian law (IHL) and international human rights law (IHRL) is by now firmly established in international law doctrine. This means that IHRL influences the interpretation of IHL and serves as a gap filler, supplementing existing IHL rules. Furthermore, IHRL bodies, including IHRL courts, are competent to review the application of IHRL in situations of armed conflict also governed by IHL. In such cases, IHRL bodies sometimes strive to interpret IHRL in accordance with IHL.

Still, co-application continues to raise difficult challenges pertaining to the compatibility of the ideological baggage and divergent worldviews traditionally attached to IHRL and IHL. It is these broader tensions which appear to have greatly troubled the late Yoram Dinstein. He regarded the increased dominance of IHRL as a relevant legal framework in times of armed conflict as a strategic threat to IHL and to the entire project of regulating armed conflicts.

According to Professor Dinstein, the application of a human rights discourse to armed conflicts generates unrealistic expectations amongst civil society about the need to apply peacetime standards of conduct to military conduct during wartime. It also questions the legitimacy of central aspects of the law of armed conflict (LOAC), such as the permissibility of attacks against military targets entailing non-excessive collateral harm to civilians and civilian objects and the application of lethal force to individuals suspected of direct participation in hostilities without due process. Dinstein considered attempts to render LOAC fully IHRL-compatible impracticable, and even dangerous: “If human rights law were to replace LOAC—if no feasible options of conducting hostilities were left to belligerent parties in war—ultimately no rules would survive, in as much as the legal paper-constraints would simply be ignored by the clashing armies.” While he accepted that IHRL has a certain role to play in armed conflicts, especially in non-international armed conflicts (NIACs), he insisted on choosing IHL over IHRL when the two branches of international law did not correspond.

Some of Dinstein’s dire predictions concerning the shortcomings of IHL/IHRL co-application appear to have been exaggerated. IHRL is increasingly applied by international judicial and quasi-judicial bodies to armed conflict situations (see, e.g., here and here) and such co-application did not lead to the collapse of IHL as Dinstein feared. To the contrary, the new procedural avenues for applying IHL opened up by IHRL-applying bodies may render IHL more relevant than ever before.

Still, the process of co-application does introduce certain complications stemming from what Dinstein referred to as “moving the signposts,” that is, offering new evaluative criteria for conduct which was deemed lawful (or lawful but awful) under IHL. Examples from the recent Russia-Ukraine and Israel-Hamas wars illustrate this latter challenge, which invites, in turn, its own normative evaluation.

The Russia-Ukraine War

The Russia-Ukraine war underscores the positive role co-application can play in promoting legal accountability, given the relatively broad jurisdiction of IHRL bodies alongside the availability of jurisdiction under certain IHRL instruments by other legal fora. This jurisdictional state of affairs manifested itself, for instance, in numerous legal proceedings brought before the European Court of Human Rights (ECtHR) relating to IHRL violations committed during the war.

Of these proceedings, four are inter-State cases and more than 7,400 are individual applications (some covering the 2014-2022 period and some also covering the events following the full invasion which started on 24 February 2022). In a key 2022 decision on admissibility in a case brought jointly by Ukraine and the Netherlands against Russia, the Court reaffirmed the continued application of the European Convention on Human Rights (ECHR) during armed conflicts. However, it noted that the Convention should be interpreted “in so far as possible” in light of IHL rules “which play an indispensable and universally-accepted role in mitigating the savagery and inhumanity of armed conflict” (para. 719). The Court then made the following observation:

In the present case, the Court would observe that there is no apparent conflict between the provisions of the Convention and the relevant provisions of international humanitarian law in respect of the complaints made, with the possible exception of the complaints under the substantive limb of Article 2. In so far as the incidental killing of civilians may not be incompatible with international humanitarian law subject to the principle of proportionality, this may not be entirely consistent with the guarantees afforded by Article 2 of the Convention. It will therefore be for the Court, at the merits stage of the present case, to determine how Article 2 ought to be interpreted as regards allegations of the unintentional killing of civilians in the context of an armed conflict, having regard to the content of international humanitarian law (para. 720).

While the Court did not spell out the precise contours of the conflict between IHRL and IHL notions of proportionality (it presumably alluded to the different weights assigned to killing enemy combatants under both tests), past ECtHR cases did reveal comparable tensions between IHL and IHRL (see, e.g., allusion to a strict test of proportionality here at para. 173 and here at para. 601) but also creative efforts to overcome them (see, e.g., here at paras. 102-107). The upshot of this decision is that, at the merits stage, the Court will review the legality of active combat incidents, including the downing of flight MH17 and shelling of residential areas, as well as other armed conflict-related legal issues, such as the treatment of prisoners of war, on the basis of a legal construction that would strive to mirror IHL.

Notably, the ECtHR is not the only venue where the legality of the conduct of the parties to the conflict, including their compliance with IHRL and IHL norms, will be explored. Other such venues include the International Criminal Court, UN Human Rights Treaty Bodies and Special Procedures, the Human Rights Council and the Council’s Commission of Inquiry on Ukraine and Monitoring Mission, and the Moscow Mechanism. Furthermore, the jurisdiction of the International Court of Justice (ICJ) over some aspects of the war has been invoked so far, inter alia, through two IHRL or IHRL-inspired instruments: the Convention on the Elimination of Racial Discrimination (CERD); and the Genocide Convention. In the CERD case, a final judgment was issued in 2024. And in the Genocide case an admissibility judgment was also issued in 2024. Cumulatively, these procedural developments illustrate the significant role played by IHRL bodies and instruments in upholding international law, including IHL norms or interpretations of IHRL mirroring IHL. Rather than representing the demise of IHL, these procedural avenues may actually offer new possibilities for its implementation.

At the same time, some applications of international law by IHRL bodies to the Russia-Ukraine war do appear to confirm some of Dinstein’s fears about the negative practical implications of what he deemed a “hostile takeover” by “human rights–niks.” One notable example is the heavily criticized Amnesty International report alleging the Ukrainian military violated IHL by conducting defensive operations in Donbass, Kharkiv, and Mykolaiv from within civilian objects, such as out-of-session schools, in proximity to Ukrainian civilians.

The report claimed that such a use of civilian objects is contrary to the safe schools declaration and to the IHL duty of avoiding locating military objectives near densely populated areas. It further alleged that the Ukrainian military violated precautionary obligations by not evacuating its own civilians to a safe distance from its troops. Beyond the legal inaccuracies in the analysis (see, e.g., here and here), the report seems to discount Ukraine’s military necessity interests and to lack engagement with the practical dimensions of the legal construction it espoused (i.e., the impracticality of protecting civilians from enemy attacks from a distance). To their credit, Amnesty International did establish a panel of experts to review the initial report, and the panel found that key parts of the report were unsubstantiated, and that the report’s preparation process suffered from a number of methodological flaws.

The Israel-Hamas War

In certain respects, the application of IHRL to the Israel-Hamas war displays features comparable to those encountered in the Russia-Ukraine war. In particular, the conflict shares the features of increased involvement of IHRL bodies and other international law bodies applying IHRL instruments, and, in parallel, instances of IHRL application which disrupt the traditional equilibrium in IHL between military necessity and humanitarian interests. Yet, one can argue that the concerns expressed by Professor Dinstein are more pronounced in relation to the Israel-Hamas war than to the Russia-Ukraine war for two reasons.

First, unlike the Russia-Ukraine war, which involves two States (Russia also exercises a high degree of control or influence over separatist non-State actors), the Israeli-Hamas war only involves one belligerent State. Under these conditions, the application of IHRL as a central legal framework for evaluating the conduct of hostilities, at the expense of IHL, might exacerbate the legal asymmetry between the belligerent parties in ways that could upset the precarious balance underlying IHL when applied to both parties involved in a NIAC. The limited ability to hold non-State actors accountable, or even to articulate normative expectations from them under IHRL, might result in a tendency to assign to the belligerent State party legal responsibility for all harms caused to IHRL victims, including harms to which the non-State party greatly contributed in its conduct, such as harms afflicted to human shields or to civilian objects it used for military purposes.

Second, the invocation of IHRL in the Israel-Hamas context tends to be undertaken by global UN bodies, nongovernmental organizations (NGOs), and other State actors. Contrastingly, in the Russia-Ukraine context, IHRL is chiefly applied by regional human rights bodies, including the ECtHR, which has considerable expertise in co-applying IHL and IHRL. The invocation of IHRL by UN actors might entail a higher degree of politicized application of international law, given the north-south tensions and other political agendas that dominate many UN sponsored proceedings, and the weaker guarantees for institutional independence, impartiality, and professional expertise that attach to some of the law-application processes under its auspices. This might accentuate tendencies to apply IHRL to armed conflicts in a manner that downplays the significance of military necessity and the IHL norms that support it.

Here again co-application brings with it increased legal accountability, including a scrutiny of IHL compliance through the prism of IHRL norms, yet the quality of that legal scrutiny should be itself carefully scrutinized. A particularly relevant question is whether, in the words of Dinstein, the legal standards applied by the different accountability mechanisms “[make] hostilities impossible to engage in effectively.

A cursory look at two arenas in which IHL was applied to the Israel-Hamas war through an IHRL prism (or in a manner heavily influenced by such a prism) suggests that such concerns are not wholly unfounded. A prominent venue for applying international law to the Israel-Hamas war is the ICJ, which already issued two decisions on provisional measures in South Africa’s application against Israel (see here and here) on the basis of the Genocide Convention (often described as the first IHRL treaty). Over and beyond the legal asymmetry represented by the fact that the Court only has jurisdiction over the State party to the conflict (the non-State actor in question cannot be a party to the Genocide Convention and is not subject to the jurisdiction of the Court), there are some aspects of the decisions rendered by the Court which underscore the limited role IHL notions appear to have played in shaping them. These include the recounting of the number of overall Palestinian victims in ICJ decisions without distinguishing or noting the need to distinguish between combatants and noncombatants (Jan. 26, 2024 decision para. 46; March 28, 2024 decision para. 27), notwithstanding the legal significance of this distinction under IHL, and the failure by the UN reports relied upon by the Court to consider the possible impact of alleged Hamas fighting tactics that violate IHL on questions of legal responsibility. In particular, there was no consideration of the deliberate locating of miliary objectives in sensitive civilian surroundings, such as hospitals, and reports about interfering with evacuation of civilians from battle zones and stealing humanitarian aid on the division of legal responsibility between Israel and Hamas.

The detachment of the legal analysis offered by the applicant State (South Africa) which centered around the dire humanitarian conditions in the Gaza Strip, from the armed conflict situation, which might have given rise to harsh conditions on the ground even were IHL norms generally observed, was remarked upon by Judge Nolte in his January 26 separate opinion:

While the Applicant cannot now be expected to provide the Court with detailed reports of an international fact-finding mission, it is not sufficient for South Africa to point to the terrible death and destruction that Israel’s military operation has brought about and is continuing to bring about. The Applicant must be expected to engage not only with the stated purpose of the operation, namely to “destroy Hamas” and to liberate the hostages, but also with other manifest circumstances, such as the calls to the civilian population to evacuate, an official policy and orders to soldiers not to target civilians, the way in which the opposing forces are confronting each other on the ground, as well as the enabling of the delivery of a certain amount of humanitarian aid, all of which may give rise to other plausible inferences from an alleged “pattern of conduct” than genocidal intent. Rather, these measures by Israel, while not conclusive, make it at least plausible that its military operation is not being conducted with genocidal intent. South Africa has not called these underlying circumstances into question and has, in my view, not sufficiently engaged with their implications for the plausibility of the rights of Palestinians in the Gaza Strip deriving from the Genocide Convention (emphasis added).

A similar concern about the unsuitability of the legal framework applied in the case was articulated in the separate opinion of Judge ad hoc Barak issued on March 28. In his decision, Barak criticized the Court’s willingness to review IHL issues using the Genocide Convention as a legal prism:

The Court’s reasoning today is far removed from the Genocide Convention and based primarily on humanitarian considerations. The plausibility analysis has gone from thin to essentially non-existent, and the central question of intent has completely disappeared. In short, the Court has accepted South Africa’s invitation to become the micromanager of an armed conflict and use the Genocide Convention as an excuse to rule on the basis of international humanitarian law. Managing an armed conflict under the Genocide Convention is a dangerous endeavor, especially when one of the belligerents is not a party to the Convention.

In other words, a review of humanitarian conditions in times of war which is based on legal evaluation of the conduct of one party to the conflict only, and which ignores key aspects which determine legality under IHL, such as the enemy combatant status of some casualties, the location of military objectives, and the prohibition on diversion of humanitarian relief, might generate a distorted normative picture. This does not mean, of course, that Israel’s conduct is lawful under international law. Rather, it means that its conduct should have been reviewed in a manner that would strive to allow all legally relevant considerations to be properly assessed.

Another possible example for a “human rights-nik” type of legality analysis based on the application of IHRL sensibilities to IHL rules, in ways that potentially distort their meaning, can be found in a report published by the Special Rapporteur on the Occupied Palestinian Territories on March 25, 2024. In the report, the Special Rapporteur described the application of the IHL principle of proportionality to one notable Israeli Defense Forces (IDF) attack against a Hamas militant, which resulted in extensive civilian casualties (para. 71-72):

The fact that so many people were killed was entirely predictable—hence at least indirectly intended—as is evident from the images that the Israeli military itself published. The attack on the Jabalia refugee camp . . . killed at least 126 civilians, including 69 children, and injured a further 280. Israeli military personnel affirmed that the target was one Hamas commander in an underground base. For a proportionality assessment to be lawful, the principle of distinction must first be respected, otherwise the civilian harm anticipated from an attack ceases to be an incidental, unintended consequence of the attack itself.

To be sure, if the value of the targeted military objective was as limited as claimed, then the military attack described in the relevant paragraphs of the report clearly runs contrary to IHL proportionality norms, provided that civilian deaths and injuries were indeed anticipated. The IDF’s initial position on these factual assertions is somewhat unclear, but the IDF spokesperson appears to reject the rapporteur’s assumptions on the scope of the military advantage sought; the matter is currently subject to an IDF internal investigation.

In any event, the legal analysis offered by the rapporteur appears to deviate from traditional understandings of IHL. As commented by Professor Aurel Sari, as long as the attack was specifically directed against a military objective, it does not implicate the principle of distinction even if it entailed extensive collateral harm to civilians (with the possible exception of situations in which inaccurate weapons or weapons whose effects cannot be limited were used; it is not alleged that this was the case here). Rather, the attack might violate other IHL principles of precaution and proportionality. While it has been argued in an interesting blog post, on which the rapporteur relied in her analysis, that attacks directed against military objectives that anticipate extensive (or excessive) civilian harm should be regarded as indiscriminate in nature, such an innovative approach appears to be inconsistent with prevailing IHL doctrine, which revolves around the need to strike a balance between military necessity and humanitarian interests, a balance underlying a cost-benefit analysis undertaken in connection to the application of the IHL proportionality and precaution principles. Instead, the approach espoused by the rapporteur seems to prioritize, at all costs and under all circumstances, civilian protection from anticipated harm which is extensive in scope. As a practical matter, following the rapporteur’s approach might create reverse incentives to locate high value military targets in the vicinity of civilians, in order to absolutely shield them from attack. This, in turn, might make hostilities impossible to engage in effectively, in certain cases, while respecting international law (if this is indeed how international law is to be construed).

Conclusions         

Co-application of IHRL and IHL plays a vital role in today’s international law governing the conduct of hostilities. Not only does IHRL complement IHL by filling in normative gaps and providing important interpretative tools, it also opens up new law enforcement avenues that did not exist before. This, in turn, contributes greatly to the advancement of the rule of international law in times of armed conflict, including the enforceability of IHL.

Still, Dinstein’s warning about IHRL taking over the field, namely by introducing standards that are impracticable in that they are divorced from the realities of armed conflicts, remains valid to a certain extent, even if the rhetoric of “hostile takeover” he used appears somewhat exaggerated in tone, and perhaps lacking in nuance. In fact, some IHL norms, such as those permitting destruction of dual use targets (such as civilian objects infrequently used by militants) and to kill instead of capture of enemy combatants, would benefit from undergoing reform. As a result, IHRL should not be viewed as a sworn enemy of IHL, but as a potential friend who has both the capacity to significantly support IHL and to seriously disrupt its underlying logic.

The examples offered above for the co-application of IHL and IHRL in the Russia-Ukraine war and Israel-Hamas war illustrate both the supportive and disruptive potential of IHRL. On an institutional level, they underscore the need to ensure that strong expertise in both IHL and IHRL is available to international law-applying bodies operating in connection to these armed conflicts, be they international courts, UN IHRL bodies (such as special rapporteurs) or important NGOs (such as Amnesty International). They also demonstrate some of the risks of law-application based on jurisdictional instruments that generate “tunnel vision,” implying exclusive or almost exclusive invocation of IHRL standards to armed conflicts. Whereas the ECtHR appears to have become sensitive over the years to the need to carefully read IHL norms and principles into its constitutive IHRL instrument, it is yet to be seen how the ICJ and other law applying bodies would deftly navigate the challenge of dealing with the complex realities of armed conflict through the narrow prism of specific IHRL or IHRL-inspired legal instruments. Ultimately, such international law-applying bodies would be expected to develop procedural methodologies and doctrinal tools for ensuring that core principles of IHL are given sufficient weight in their legal decisions, and that their application of IHRL does not result in an impractical displacement of the legal signposts which constitute IHL.

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Yuval Shany is the Hersch Lauterpacht Chair in Public International Law at the Hebrew University of Jerusalem, and a Senior Fellow at the Israel Democracy Institute.

 

 

 

 

Photo credit: Ministry of Defense of Ukraine

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