The Relationship Between the Law of Armed Conflict and International Human Rights Law
This is the first of two posts on two specific aspects of the relationship between the law of armed conflict (LOAC) and international human rights law (HRsL). This post deals with the applicability of HRsL, first, in situations of armed conflict and, second, outside national territory. These are purely questions of HRsL. The second post will address how HRsL monitoring and enforcement bodies address the possible relevance of LOAC.
Those who oppose the idea of there being any relationship between the two fields of international law need to ask themselves to what they object. If their fear is of military conduct being evaluated by reference to inappropriate, peacetime, standards, they need to consider whether that is, in fact, the case. That will be examined in the second post. If the objection is to any form of judicial or quasi-judicial scrutiny external to the State, that is a rejection of accountability.
A Few Broad Points
It is necessary at the outset to make a few general points on the nature of HRsL and on relationships between bodies of rules. I am assuming knowledge of LOAC but not of HRsL. For reasons of space, I shall have to proceed by way of bald assertion.
First, HRsL involves the responsibility of the State. It is about the relationship between those who exercise authority (executive, legislative or judicial) and those foreseeably affected by its exercise. The protection it offers is not, generally, limited to citizens or nationals. HRsL requires not only that the State respect the right but also that it protect people from violations.
Second, not all laws are handled in the same way. HRsL is subject, in the same way as LOAC, to rules regulating the operation of the international legal system (e.g., sources, treaty law, immunities). There is nevertheless a difference of emphasis on how LOAC and HRsL treaties are interpreted. Teleological interpretations—readings that account for the purpose or goals of law—play a more important role in HRsL than LOAC.
Third, as any legal system develops, it is normal for what were originally discrete fields to collide or overlap. That is likely to happen increasingly in international law, and it is not confined to the relationship between LOAC and HRsL.
Finally, HRsL exists in its own right. It is not an international form of domestic civil liberties.
The Applicability of HRsL to Armed Conflict
It used to be the case that, upon outbreak of war, the operation of treaties between the parties was suspended. The UN International Law Commission, in its report on the Effects of Armed Conflicts on Treaties, has reversed the presumption. Treaties remain applicable unless their content makes it impossible or a contrary intent can be shown.
More specifically, most of the major international and regional HRsL treaties on civil and political rights, by their express terms, make it clear that they remain applicable in time of armed conflict. In situations of “[war or other] public emergency,” some rights may be modified, though not eliminated by derogation. Other rights (e.g., the prohibition of arbitrary killing, torture, cruel, inhuman or degrading treatment or punishment) are non-derogable. They therefore remain applicable, and the key question is how the concepts are interpreted.
Political bodies (e.g., the UN Security Council, UN General Assembly, UN Human Rights Council) repeatedly call on parties to an armed conflict to respect their obligations under International Humanitarian Law (UN speak for LOAC) and HRsL. Those bodies have repeatedly authorized or endorsed mandates referring to both sets of rules and have failed to restrict thematic mandates, which had been interpreted by mandate-holders as including situations of armed conflict.
The International Court of Justice, in its advisory opinions on the Legality of the Threat or Use of Nuclear Weapons, the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, and the contentious case Armed Activities on the Territory of the Congo (Democratic Republic of Congo (DRC) v. Uganda), has made it clear that the existence of an armed conflict does not “turn off” HRsL. Every relevant HRsL body which has addressed the issue, whether treaty-based or Charter-based (i.e., UN Special Procedures), has taken the same position.
The overwhelming evidence is that HRsL remains applicable when LOAC is also applicable. The question is rather how the interpretation of HRsL is affected by LOAC (see post 2).
The Applicability of HRsL Outside National Territory
This is a much more difficult subject because the question admits of a non-binary answer. It should be noted, at the outset, that where State A is present in the territory of State B, with its consent, A is subject to the international legal obligations of the latter. B cannot authorize behaviour which is prohibited to itself. That concerns the obligation of B with regard to what occurs on its territory. This section concerns rather the extent to which State A carries its own HRsL obligations with it, when acting extra-territorially, whether with or without consent.
Two questions need to be distinguished. First, does HRsL apply outside national territory at all? Second, if so, to what extent does it apply?
When a State assumes an international legal obligation, it is bound to give effect to it wherever it takes relevant action. The content of the rule and the nature of the action to be taken may mean that it only has effect within national territory. Where the obligation concerns executive action, it is likely that the State will have to apply the content both within and outside national territory. It would be objectionable to allow a State to torture on condition that it did so outside national territory.
UN political bodies have repeatedly called upon parties to an armed conflict occurring outside the territory of one of them to respect LOAC and HRsL. Examples include Israel and the Occupied Territories and Russia in Georgia and Ukraine. The International Court of Justice in the second case cited above found HRsL to be applicable in occupied territory. In DRC v. Uganda, it found HRsL to be applicable both in occupied Ituri province and in other areas of the DRC.
When addressing the issue generally, HRsL mechanisms have found HRsL to be applicable, in principle, to the acts (and occasionally the omissions) of State agents outside national territory. In determining an individual complaint, those bodies face a question of jurisdiction rather than applicability as such. The State only owes obligations to those within or subject to the jurisdiction of the State. The precise formulation varies in the different HRsL treaties.
On the basis of the case law of the International Court of Justice and the relevant HRsL bodies, two issues are clear while one is somewhat cloudy.
Control of Territory
Where a State is in control of foreign territory, it owes HRsL obligations to those in the territory. The extent of the HRsL obligations will depend on the activities over which the State exercises control. The longer and more settled the occupation, the more that is required of the State. The notion of control of territory includes, but is not limited to, belligerent occupation in a LOAC sense. It includes very small areas of territory (e.g. a roadblock; see Jaloud v. the Netherlands) and very short-term control. It also extends, according to the European Court of Human Rights (ECtHRs), to situations in which a State exercises “decisive influence” over the authorities in charge of territory, such as Russia over Transnistria.
Control Over the Person
All relevant HRsL bodies agree that where a person is in the physical control (i.e. detained) of the authorities of State A in the territory of B, A is obliged to afford all relevant rights. That concerns principally the detention regime, the prohibition of ill-treatment and, in some cases, access to family.
If a soldier of State A deliberately kills a clearly unarmed person in the territory of B, is the victim in or subject to the jurisdiction of State A? The case law of the ECHR is incoherent and inconsistent. It may be that it chooses to deny jurisdiction when the real problem is establishing the facts (e.g. Georgia v. Russia (No.2)). Its lack of a plausible rationale may explain why it extends the concept of control over territory to include very small areas and situations of “decisive influence.” The approach of the UN Human Rights Committee, which has only been articulated in a General Comment, is consistent with the principles of state responsibility. In General Comment 36, para. 63, it stated,
[A] State party has an obligation to respect and to ensure the rights under article 6 of all persons who are within its territory and all persons subject to its jurisdiction, that is, all persons over whose enjoyment of the right to life it exercises power or effective control.… This includes persons located outside any territory effectively controlled by the State, whose right to life is nonetheless impacted by its military or other activities in a direct and reasonably foreseeable manner.
States do have HRsL obligations outside national territory but the extent and scope of the obligations will depend on the extent of the State’s control over the relevant activity, the individual or the territory.
In sum, it is widely acknowledged that neither armed conflict nor the extraterritorial character of State activity extinguishes HRsL obligations. The clear language of HRsL instruments, the expressions of influential political organs, and decisions of respected adjudicative bodies repeatedly envision a complementary rather than an exclusive relationship between LOAC and HRsL. Meanwhile, courts have clearly and consistently established that HRsL generally applies extraterritorially to areas and persons over which States exercise control, even if the notion of control is not yet fully established.
Having addressed applicability, the question of how complementary HRsL obligations should be interpreted and practiced looms large. The second post in this series surveys how HRsL bodies have approached that subject.
Françoise Hampson is Emeritus Professor of Law at the University of Essex.
Photo credit: Cpl. Alex Flynn, U.S. Army