How Human Rights Law Bodies Handle Situations of Armed Conflict and Human Rights Law
This is the second of two posts dealing with aspects of the relationship between the law of armed conflict (LOAC) and Human Rights Law (HRsL). HRsL bodies have long dealt with cases arising out of situations of armed conflict, even though the applicability of LOAC was often denied. For armed forces to accept the adjudication of HRsL bodies, it must be clear that the latter take account of the context and not judge on the basis of the result of an attack or with the benefit of hindsight. In those situations where LOAC is to be taken into account, the law must be interpreted and applied as it would be under LOAC and not as a HRsL treaty.
State Denial of Armed Conflict and the Applicability of LOAC
In some cases of violence, even widespread and organized, a State may deny the existence of armed conflict. Examples of such situations include the United Kingdom in relation to Northern Ireland during “the troubles,” the struggle in the 1990s against the Kurdistan Worker’s Party in eastern Turkey, and Russia during and since the second Chechen War. In such situations, there can be no question of a HRsL body taking account of LOAC, as such, since the State will not seek to rely on it. But the body will consider the factual situation of conflict in which the alleged violation occurred. In the first two situations above, the State had derogated under the European Convention on Human Rights (ECHR). It is not yet clear whether the HRsL derogation threshold is at the same level of violent disruption as common Article 3 of the Geneva Conventions which regulates hostilities in situations of non-international armed conflict.
When handling individual petitions alleging human rights violations, HRsL treaty bodies take a very contextual approach and are acutely aware of the risk of judging with the benefit of hindsight. For example, in the case of McCann & others v. UK (Gibraltar killings), the European Court of Human Rights (ECtHRs) found the British Special Air Service men who opened fire did not violate the ECHR. They had a reasonable, but inaccurate, belief that the Irish Republican Army members were in a position to detonate an explosive device remotely. The United Kingdom did, however, violate the ECHR in not planning the operation in such a way as to avoid the need to resort to lethal force.
HRsL bodies have four “tools” for handling such situations. First, certain rights contain limitation clauses. The State may interfere in the exercise of the right where necessary, on defined grounds, and proportionate.
Second, the applicant may raise a number of separate alleged violations, but the HRsL body may focus on only some of them. However frustrating as a matter of law, this enables a HRsL body to focus on planning issues and the taking of precautions, rather than an analysis of the actual fighting.
Third, HRsL bodies take account of the precise configuration of circumstances, including the forces employed and the weapons used.
Examples will illustrate the second and third “tools,” which often co-exist. In Tagayeva v. Russia (Beslan School Massacre), the ECtHRs focused on the failure to take any precautions in the face of known threats to schools in the region. In Finogenov v. Russian Federation (Moscow Theatre Siege), the ECtHRs concentrated on the inadequate provision of medical assistance at the scene and the failure to inform the doctors in nearby hospitals of the substance which had been used. This prevented the administration of the correct antidote.
The fourth tool is derogation, a formal process set out in the relevant treaties. The HRsL body determines whether the situation qualifies. The measures adopted must be necessary and proportionate (see Aksoy v. Turkey, ECtHRs). Some rights, including the prohibition of arbitrary killings and torture, are non-derogable. The detention provision is potentially derogable, which may be needed to legitimize internment.
State Reliance on LOAC
When a State concedes the applicability of LOAC or when LOAC clearly applies as an objective matter, the legal task of HRsL bodies shifts. The challenge is not an unusual one for (quasi-)judicial mechanisms in specialized fields. They only have the authority to make pronouncements regarding violations of rules in their own field. How should they interpret the rules normally applicable where they collide or clash with other rules binding on the parties? Three situations need to be distinguished.
UN Security Council Chapter VII Resolutions
Where such a UN resolution requires specific action, HRsL bodies give effect to Article 103 of the UN Charter. That is not the case where the resolution merely authorizes action (Al-Jedda v. UK, ECtHRs) or where it requires national authorities to adopt the necessary measures. In those cases, the State has to give effect to the UN Security Council resolution, taking account of its HRsL obligations (Sayadi & Vinck v. Belgium, Human Rights Committee).
Rules About the Operation of the International Legal System
HRsL, like other areas of international law, is subject to the operation of such rules. For example, in Al-Adsani v. UK, the ECtHRs recognized that the UK could deny the applicant access to court on account of the rules of sovereign immunity.
Relationship with Rules in Other Fields of International Law
This is not confined to the relationship with LOAC. Issues have arisen in relation to environmental law and the law of the sea. It should be noted that no State, to date, has chosen to invoke LOAC in an armed conflict in national territory. The ECtHRs addressed the issue of the relationship with LOAC head on in the case of Hassan v. UK, which involved detention in Iraq during the international armed conflict (IAC) phase.
LOAC must be applicable for the HRs body to take it into account. It is not clear what will happen when the territorial State denies the applicability of LOAC but an assisting State seeks to rely on it. The ECtHRs requires the State itself to invoke LOAC. The view of other bodies is not clear. It may make a difference where invoking LOAC is designed to modify the rule otherwise applicable. It is not clear whether a State must derogate in order to be able to invoke LOAC. The ECtHRs, obiter, said that that was necessary in non-international armed conflicts (NIAC). It should be remembered that a good deal of what occurs during an armed conflict has nothing to do with the fighting and is not subject to LOAC.
It is much easier for HRsL bodies to take account of LOAC treaty rules which have been universally (1949 Geneva Conventions) or widely (1977 Additional Protocols) ratified. Owing to the greater specificity of treaty rules in IACs, particularly in relation to the conduct of hostilities, it is easier for a HRs body to take on board LOAC rules in IACs than in NIACs. It is not clear what attitude HRsL bodies will take to alleged customary rules, always assuming that the State can prove that the alleged rule exists.
Top-down solutions will not work. The relative importance of LOAC depends on a range of factors. It should be remembered that it is not a matter of LOAC or HRsL; HRsL is always applicable. It can be summed up by saying that the closer the alleged violation was to active hostilities, the greater the emphasis that will be placed on LOAC. In IACs, this may be extended to the whole of the relationship between armed forces. Three examples will illustrate the operation of the principle. These are speculative, given current case law, but the direction of travel seems clear.
Situations in which States resort to security detention implicate a number of human rights. Yet LOAC simultaneously offers elaborate regulation of internments and detention. The ECtHRs Hassan case involved detention under either the 1949 Third or Fourth Geneva Conventions. The ECtHRs recognized that LOAC provided authority to detain, the grounds of detention, and the system of review (administrative board). Various detailed issues were not addressed (e.g. due process rights during the review process).
Opening fire and active hostilities in IAC routinely implicate the HRsL right to life. However, the right to life is not absolute and operates against arbitrary killing. What is an “arbitrary killing” is likely to depend on the lawfulness of the killing under LOAC (see Human Rights Committee, General Comment No.36, para. 64).
Meanwhile, opening fire and situations distinct from active hostilities in NIAC present distinct legal challenges. Assume that an incident occurred a long way from where fighting is taking place but involved an individual who had participated in the fighting. This is likely to be analysed using a law enforcement paradigm, taking account of the increased risk of a violent response.
There are challenges for HRsL bodies, but they arise principally from gaps in LOAC. For example, there is nothing in LOAC on the conduct of house searches or policing of demonstrations in areas of conflict. This makes it difficult for HRsL bodies to take LOAC into account. Second, there is uncertainty as to the scope of direct participation in hostilities sufficient to forfeit civilian protection from lethal targeting, although it does at least feature in treaty law. Targeting on the basis of membership of an organized armed group (exercising a continuous combat function) and detention in extra-territorial NIACs appears to depend on customary law. The refusal of many States to take an official position on these issues makes it harder to establish customary law.
The evidence to date suggests that HRs bodies can handle appropriately cases arising out of armed conflict in which the State seeks to rely on LOAC. This does depend on States pleading cases constructively and on third-party interventions setting out the interpretation and application of LOAC in a responsible way.
Françoise Hampson is Emeritus Professor of Law at the University of Essex.
Photo credit: Sgt. Gabriel Rivera, U.S. Army