IHL and international human rights law

In studying IHL, it is also worthwhile to note the increasing influence of international human rights law (IHRL).

Where once, the relationship between the law of armed conflict or international humanitarian law and human rights law was a matter of academic debate it is now generally accepted, and evident in practice that IHRL and IHL are cooperative, even interrelated, regimes. International human rights law can be sourced from a number of international treaties and declarations, as well as numerous regional human rights conventions. Many of these rules are now considered customary international law, applicable regardless of whether a State is party to the relevant convention. Most of the world’s geographic regions, as well as the UN, also have a human rights Court or Commission for investigating breaches of the law. (A brief guide to finding UN Human Rights Documents provides links to human rights documents, as well as the relevant courts and commissions).

At first glance, the law of armed conflict and human rights law seem a poor match. Human rights law has, as a primary principle, the right to life; (Article 6 of the ICCPR notes that: ‘every human being has the inherent right to life. This right shall be protected by law. No on shall be arbitrarily deprived of his life’. However, most of the international human rights documents acknowledge that lawful acts committed in wartime are not subject to the ‘right to life’ provision. For instance, Article 15 of the European Convention notes that cases of death as a result of legal acts of war are not to be regarded as a violation of the Article 2 right to life.) while the law of armed conflict ‘allows’ killing in specific circumstances. The conflicting aims of these two branches of international law appear incompatible, especially given debate over whether human rights can ever apply or be respected in armed conflict at all. However, throughout the 20th century, a gradual shift in the law of armed conflict has taken place. The ‘law of war’ has come to be called ‘international humanitarian law’. Some commentators this shift is due to the increasing influence of international human rights law on the development of international humanitarian law, especially in the post-UN Charter era. It is generally acknowledged that both IHL and IHRL have a shared philosophical underpinning.

As noted by the ICRC delegate at the International Conference on Human Rights in Tehran in 1968:

[the laws of war are]… based on certain of the fundamental rights proclaimed in [the Universal Declaration of Human Rights] - respect for the human person, protection against torture and against cruel, inhuman or degrading punishments or treatment... the Universal Declaration of Human Rights and the Geneva Conventions are both derived from one and the same ideal, which humanity pursues increasingly in spite of passions and political strife and which it must not despair of attaining – namely, that of freeing human beings and nations from the suffering of which they are often at once the authors and the victims.

(Statement of ICRC delegate to the International Conference on Human Rights in Tehran, 1968.)

IHL does not preclude the applicability of IHRL. Indeed, international judicial and quasi-judicial bodies have acknowledged the place of human rights law in times of armed conflict. The International Court of Justice in the Nuclear Weapons Advisory Opinion (Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996) noted that ‘the protection of the International Covenant on Civil and Political Rights [ICCPR] does not cease in times of war, except by operation of Article 4 of the Covenant’. (Nuclear Weapons Advisory Opinion at para 25. Article 4 permits temporary exemptions – known as derogations – from the operation of some provisions of the ICCPR in time of public emergency threatening the ‘life of the nation’, such as an armed conflict. However, any derogation from IHRL must be consistent with a State’s ‘other obligations under international law.’ This means that derogations from IHRL cannot be made if such derogations violate a State’s obligations under IHL. See ICCPR Art. 4(1).) The Advisory Opinion on the Wall ( See Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, ICJ Reports 2004, at paras 102-106 (hereinafter Advisory Opinion on the Wall) also confirmed the applicability of IHRL, stating that human rights law is not displaced by the outbreak of an armed conflict, and that IHRL may be directly applied in situations of armed conflict. In addition, in the Armed Activities in the Territory of the Congo (Congo v Uganda) the International Court of Justice noted that during armed conflict, it is the responsibility of parties to ‘secure respect for the applicable rules of international human rights law and international humanitarian law’. (Armed Activities in the Territory of the Congo (Congo v Uganda) General List No. 116, 19 December 2005.)

Domestic courts have also looked to international human rights law in times of armed conflict, for guidance on to how to balance the needs of the State in conducting an armed conflict against the rights of individuals who may be affected by that State in the execution of its military objectives.

In addition, a number of international human rights bodies have begun to refer to the rules IHL in their own decision-making processes. Both the Inter-American Commission on Human Rights and the European Commission of Human Rights have drawn on the rules of humanitarian law in their decisions, (in the IACiHR, Juan Carlos Abella v Argentina, Case No. 11.137, Report No. 55/97, 18 November 1997, para. 271; see also Las Palmeras v Colombia, Case No. 67, 4 February 2000, IACHR, (Ser. C) No. 96 (2002); and Bamaca Velasquez v Guatemala, Case No. 70, 25 November 2000. In the ECiHR, see Cyprus v Turkey, Cases No. 6780/74 and 6950/75, (1982) 4 EHRR 482 and Ergi v Turkey, Case No. 23818/94, Judgment, 28 July 1998, (2001) 32 EHRR 18) citing the need to drawn on some of the more detailed provisions of IHL in order to reach a decision. For example, in Abella v Argentina, also known as the La Tablada Case, the IACiHR addressed the issue of whether it was competent to apply international humanitarian law. In its decision, the Commission decided that it was able to apply IHL in its decision-making processes, as it assisted in the Commission’s ability to address cases dealing with situations of armed conflict. Where IHRL did not make specific provision regarding a certain situation, such as how to differentiate between a civilian installation and a military one, it was appropriate to draw on IHL for guidance.

In this way, it can be seen how substantive human rights are given procedural effect through the judicial system in times of armed conflict. Certain fundamental human rights obligations thus remain enforceable during times of armed conflict.

 

Case Study: R (on the application of Al-Jedda) (FC) v Secretary of State for Defence

Hilal Abdul-Razzaq Ali Al-Jedda, a dual Iraqi/British national was arrested and detained by UK forces in Iraq in 2004. He was held without trial for three years under suspicion of involvement in terrorist activities. Al-Jedda was eventually released from detention, but stripped of his UK nationality. Al-Jedda brought a claim in the UK courts, alleging that his detention violated the European Convention on Human Rights. While the House of Lords eventually dismissed Al-Jedda’s application, it nonetheless stated that ‘while the maintenance of international peace and security is a fundamental purpose of the UN, so too is the promotion of respect for human rights’ (at para 37) and that, while ‘the UK may lawfully, where it is necessary for imperative reasons of security, exercise the power to detain’, (at para 39) the State must ‘ensure that the detainee’s rights under article 5 [of the ECHR] are not infringed to any greater extent that is inherent in such detention.’ (at para 39).

[2007] UKHL 58