The Interplay Between Human Rights and Humanitarian Law
Many people today think of humanitarian law or the law of armed conflict as essentially part and parcel of human rights law. This is, of course, historically incorrect, as the law of war predates human rights law by centuries, the latter truly emerging only in the crucible of World War II. Philosophically, however, the idea that humanitarian law guarantees a certain minimum of human rights during armed conflict has broad appeal, and is supported by many authorities. Yet, as a purely practical matter, it was never clear exactly how human rights law and humanitarian law are supposed to interact.
The starting point in many analyses has been the well-known Nuclear Weapons Advisory Opinion of the International Court of Justice, in which it remarked (para. 25) that ‘the protection of the International Covenant on Civil and Political Rights does not cease in times of war.’ The Court continued by using the right to life, guaranteed in Article 6 of the ICCPR, as an example:
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 lex specialis, 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.
Louise Doswald-Beck has, among others, interpreted this statement of the Court to mean that, at least in the context of the conduct of hostilities, human rights law cannot be interpreted differently from humanitarian law (see here, text around footnotes 50-52). As lex specialis, humanitarian law would always govern, and human rights law would add little or nothing to its application.
The Bush administration went one step (or more of a giant leap) further, by claiming before UN treaty bodies that humanitarian law as lex specialis completely displaces human rights law, even if the relevant treaties formally continue to apply. By way of example, if a detainee in the ‘war on terror’ had little or no rights under humanitarian law, he would not have any additional rights from human rights law. Such an approach has been resolutely rejected by the Human Rights Committee and the Committee against Torture (for the US statements, see here and here. The concluding observations of the treaty bodies are available here – see CAT/C/USA/CO/2, 25 July 2006; CCPR/C/USA/CO/3, 15 September 2006. See also the discussion by John Bellinger here at Opinio Juris).
However, there is no cogent reason for the relationship between the lex generalis and the lex specialis to operate in only one way, as there are instances in which it is human rights law which is more specific than humanitarian law. For example, Common Article 3(1)(d) refers, in a very general way, to ‘judicial guarantees recognized as indispensable by civilized peoples.’ It is then only natural to look at human rights law, among other sources, in order to provide more specific content to this general formula of humanitarian law. This was actually suggested by the experts gathered at the 2003 ICRC Round Table in San Remo, and, indeed, this is exactly what the US Supreme Court did in Hamdan by invoking Article 14 of the ICCPR, even if it was referring to human rights law in a rather superficial way, merely in a single footnote (Hamdan at 70, note 66).
Yet, not even acknowledging that the relationship between the general and the special might go both ways is not a fully satisfactory explanation. Thankfully, there is some new jurisprudence to consider. The ICJ itself expanded on its own thinking in Nuclear Weapons regarding the relationship between human rights law and humanitarian law in its Wall Advisory Opinion (para. 106):
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.
Most recently, in the Targeted Killings case the Israeli Supreme Court ruled that suspected terrorists are civilians who are taking a direct part in hostilities and who may be targeted while doing so. However, the Court found that they may be assassinated only if four conditions are met (para. 40):
(1) The state must possess well-based, thoroughly verified information regarding the identity and activity of the civilian who is allegedly taking part in the hostilities; the burden of proof on the state is heavy;
(2) A civilian taking a direct part in hostilities cannot be attacked at such time as he is doing so, if a less harmful means can be employed. Thus, if a terrorist taking a direct part in hostilities can be arrested, interrogated, and tried, those are the means which should be employed. In the words of the Court: ‘Trial is preferable to use of force. A rule-of-law state employs, to the extent possible, procedures of law and not procedures of force.’
(3) If a civilian is indeed attacked, a thorough and independent investigation must be conducted regarding the precision of the identification of the target and the circumstances of the attack, and in appropriate cases compensation must be paid for harm done to innocent civilians.
(4) Finally, combatants and terrorists are not to be harmed if the damage expected to be caused to nearby innocent civilians is not proportionate to the military advantage directly anticipated from harming the combatants and terrorists.
What is so interesting here is that only the last of these conditions, i.e. the principle of proportionality, is a rule of international humanitarian law. There is no rule of humanitarian law obliging states not to kill combatants if they can be arrested or detained – as long as the combatant is not hors de combat, he can be lawfully killed. There is likewise no rule of humanitarian law mandating an effective investigation into the circumstances of every attack, as such an obligation exists only in respect of possible grave breaches of the Geneva Conventions. The first three conditions set by the Court for the lawfulness of targeted killings are therefore drawn solely from human rights law. The Court indeed cites to that effect to three judgments of the European Court of Human Rights, including the well-known McCann case.
The Israeli Supreme Court in Targeted Killings is doing much more than using a more specific rule of human rights law to interpret a general rule of humanitarian law. No, the rule of humanitarian law is very clear: states have quite deliberately left themselves the freedom to kill combatants, or civilians engaging in hostilities, and are under no obligation to capture them and put them on trial instead. The Court is therefore using a human rights norm not to interpret, but to restrict the application of the humanitarian one.
What the Court clearly did focus on as the primary basis for its expansive application of human rights law is Israel’s continuing and prolonged belligerent occupation of the Palestinian territories. For example, the Court says that targeted killings may not be used against terrorists if they can be arrested and tried, as this is ‘particularly practical under the conditions of belligerent occupation, in which the army controls the area in which the operation takes place, and in which arrest, investigation, and trial are at times realizable possibilities.’ The amount of control over the Palestinian territories and people that Israel has, as their belligerent occupier, gives it a wide variety of options it can use in order to deal with terrorists, and this in turn augments the obligations it has under human rights law. In a ‘normal’ international armed conflict, without the presence of a prolonged occupation, human rights law would presumably not impose such additional obligations, and the state’s relative freedom of action under humanitarian law would remain unrestricted.
It is likely that cases in which the interplay between human rights law and humanitarian law might prove to be important will more and more frequent. For example, the Al-Skeini case, which deals with the extraterritorial application of the ECHR in Iraq, is currently pending before the UK House of Lords. The most enduring quality of the Targeted Killings judgment might actually be that it shows how the relationship between these two branches of international law can be a two-way street, and how that relationship can be far more complex than is usually thought. We shall certainly see what other courts make out of it.