The Interplay Between Human Rights and Humanitarian Law

by Marko Milanovic

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.

http://opiniojuris.org/2007/05/10/the-interplay-between-human-rights-and-humanitarian-law/

6 Responses

  1. Hi Marko: Are you sure that any combatant not rendered hors de combat can be lawfully killed? I thought requirements of necessity and proportionality applied to attacks on combatants, with the important difference that combatant deaths can be justified as necessary means of achieving a proportionate objective while noncombatant deaths can only be justified as necessary and proportionate side-effects of achieving an objective. So if combatant deaths further no military objective they are not justified but merely wanton. Or is that only part of just war theory?

  2. 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.

    That’s true, but what you are missing is the point that terrorists are not “combatants.” Many readers are likely familiar with the famous four criteria found in Article 4 of the Third Geneva Convention concerning eligibility for POW status; i.e., requirements to:

    (a) be commanded by a person responsible for his subordinates;

    (b) having a fixed distinctive sign recognizable at a distance;

    (c) carrying arms openly;

    (d) conducting their operations in accordance with the laws and customs of war.

    What seems less well known, however, is that these criteria predate the Geneva Conventions/International Humanitarian Law by at least a half century. They are the qualifications for enjoying belligerent rights as a combatant first explicitly ennumerated in the 1874 Brussels Declaration and subsequently incorporated in the 1899 and 1907 Hague Regulations for Land Warfare.

    The essential point is that the combatant enjoys all the “rights” of war. Modern commentators seem fixated n focused on POW status. But the essential right of a combatant is authority to kill the enemy on sight and destroy his war material while enjoying complete immunity from domestic laws while doing so. In exchange for the this immunity, the combatant is himself subject to being shot on sight. While his surrender must be accepted if offered, an adversary need not offer the opportunity before attacking, unlike law enforcement personnel who must do so.

    The U.S., Israel, indeed almost all civilized nations wish to deny terrorists any lawful standing for their attacks. That’s perfectly acceptable under the law of war; at a minimum they don’t wear distinguishing emblems, frequently don’t carry their arms openly, and certainly don’t seem to follow the law of war themselves. But these individuals are not then combatants. While modern International Humanitarian Law instruments (e.g., Geneva IV, Additional Protocol I) seem to support using the term “civilian” to describe those not enjoying belligerent or combatant immunity, I believe the better term is “non-combatant.” There are actually a number of uniformed military personnel, such as doctors and other medical personnel, who also fall outside the scope of combatants and lack authority to either kill or be directly targeted.

    As the Israeli Supreme Court correctly noted, the “civilian” (or “non-combatant”) has no right to participate in hostilies and may be shot on sight while doing so. The Court then went to reasonably suggest that in the modern environment “participating” should be interpretted more broadly than literally being in the process of conducting an attack. But the key point is that lacking the belligerent’s right to engage in hostilities, the terrorists become ordinary criminals by doing so, and are subject to the sanctions (but also the rights) accorded to criminal defendants vice those provided to combatants by the law of war. That’s why the Israeli court correctly notes they should be apprehended where possible and subjected to ordinary criminal regimes. This is especially true in occupied territory where the occupier is supposed to be maintaining public life and safety, not making war on the inhabitants.

    It is extremely unfortunate that the Bush Administration has clouded the issue by its manufactured term “enemy combatant.” Either a terrorist is a combatant, enjoying immunity from conventional criminal law, or they are a non-combatant, subject to being targeted while engaged in hostilities but otherwise subject to conventional criminal sanctions and procedures.

  3. Hi Adil,

    I think it’s very important here to distinguish between several different kinds of proportionality. So, any combatant not hors de combat can be lawfully killed as a matter of IHL. No proportionality criterion applies, as that principle is designed to minimize the impact of hostilities on the civilian population (see, e.g., Arts. 51(5)(b) and 52(2) of Additional Protocol I, both reflective of customary law; see also here)

    The protection that combatants get is that even though you can kill them, you can’t kill them in a very bad way, for instance through perfidy or weapons causing unnecessary suffering.

    The necessity and proportionality criteria you refer to are a part of the jus ad bellum, specifically the conditions for the lawful exercise of self-defense, not the jus in bello/IHL. So, the same person, a combatant, can be killed in violation of the jus ad bellum, in an aggression for instance, but be killed without violating the jus in bello (all permutations apply). The jus ad bellum criteria didn’t even apply in this particular case, as Israel was not using force against any other state.

    What the Israeli Court did here was to add a further proportionality requirement, which comes from human rights law, and that is that you must employ the least harmful means of neutralizing a threat. That requirement simply does not exist when it comes to combatants in IHL.

  4. Dave,

    I agree entirely with the first part of your comment, and I apologize for any terminological confusion. After Additional Protocol I, the term ‘combatant’ means what in today’s US parlance is termed a lawful combatant, i.e. someone who is entitled to participate in hostilities and who is entitled to POW status if captured. That is not how I was using the term – by combatant I meant anyone de facto participating in combat, whether legally entitled to do so or not.

    The Israeli Supreme Court ruled (correctly, in my view) that so-called unlawful combatants are in law civilians who are taking a direct part in hostilities and may be targeted while doing so. The point of the Court’s ruling was precisely to define these two elements, the directness and the temporal coordinates of participation, as it is only within these bounds that a civilian may be lawfully targeted.

    I don’t think, however, that civilian status has any other implications for the application of human rights law. Once a civilian can be targeted under IHL, the same rules apply as if he were a combatant under IHL. They can both be killed in exactly the same way. The reason why the Court applied human rights law was not the terrorists’ status under IHL, civilian or not, but the fact that they lived in an environment which is under the complete control of the state of Israel for a very long period of time now. Indeed, human rights law is meant to apply to everyone, civilians and combatants alike – they are equally human.

  5. One of the objections to the use of “non combatants” to denote the “unpriviliged” warrior who takes up arms is that prior to the Geneva Conventions that term was used to refer to members of the armed forces not authorized to engage in combatant activities – like the medical personnel David refers to. Pursuant to Hague IV, “The armed forces of the belligerent parties may consist of combatants and non-combatants. In the case of capture by the enemy, both have a right to be treated as prisoners of war.”

    This continues to be a very sensitive issue for the Department of Defense because of the increasing reliance on civilian augmentees. Because they are authorized by the state to perform their functions in support of the armed forces, they are considered to fall into this same category (of course this assumes the functions they perform are consistent with that status).

    It seems to me that the root of much of the confusion related to coining the term “enemy combatant” was the constant confusion between the “targeting” consequence of participating as a “combatant” in an armed conflict and teh potential criminal responsibility for doing so without the authority derived from state action.

    In the former sense, the term “enemy combatant” does not seem particularly troubling, for all it really amounted to was term of policy that covered what had routinely been designated as a “hostile force” under rules of engagement – individuals involved in an armed conflict subject to attack based on identification of criteria linking them a designated enemy force. I agree that it mixed up a term originally intended to denote a warrior with the privilege to participate in hostilities, and because of that I had advised on a number of occassions to substitute the term “opposition personnel” for “enemy combatant”, but if it is confined to the operational/targeting meaning, which is what I understand Marko was suggesting, it does seem somewhat logical.

    However, whether being part of that group and by implication participating in an armed conflict subjects the individual to criminal sanction is a distinct issue, contingent upon the nature of the armed conflict, the source of criminal proscription being asserted, and whether the individual qualifies for immunities pursuant to the law of war. It seems to me, therefore, that it was the attachment of the term “unlawful” to the enemy combatant designation that really confused the issue.

    One of the objections to the use of “non combatants” to denote the “unprivileged” warrior who takes up arms is that prior to the Geneva Conventions that term was used to refer to members of the armed forces not authorized to engage in combatant activities – like the medical personnel David refers to. Pursuant to Hague IV, “The armed forces of the belligerent parties may consist of combatants and non-combatants. In the case of capture by the enemy, both have a right to be treated as prisoners of war.”

    This continues to be a very sensitive issue for the Department of Defense because of the increasing reliance on civilian augmentees. Because they are authorized by the state to perform their functions in support of the armed forces, they are considered to fall into this same category (of course this assumes the functions they perform are consistent with that status).

    It seems to me that the root of much of the confusion related to coining the term “enemy combatant” was the constant confusion between the “targeting” consequence of participating as a “combatant” in an armed conflict and the potential criminal responsibility for doing so without the authority derived from state action.

    In the former sense, the term “enemy combatant” does not seem particularly troubling, for all it really amounted to was term of policy that covered what had routinely been designated as a “hostile force” under rules of engagement – individuals involved in an armed conflict subject to attack based on identification of criteria linking them a designated enemy force. I agree that it mixed up a term originally intended to denote a warrior with the privilege to participate in hostilities, and because of that I had advised on a number of occasions to substitute the term “opposition personnel” for “enemy combatant”, but if it is confined to the operational/targeting meaning, which is what I understand Marko was suggesting, it does seem somewhat logical.

    However, whether being part of that group and by implication participating in an armed conflict subjects the individual to criminal sanction is a distinct issue, contingent upon the nature of the armed conflict, the source of criminal proscription being asserted, and whether the individual qualifies for immunities pursuant to the law of war. It seems to me, therefore, that it was the attachment of the term “unlawful” to the enemy combatant designation that really confused the issue.

    From an operational perspective, target identification and engagement is determined, as David suggests, simply by analysis of whether an individual – in uniform or not, under state authority or not – acting as a opposition warrior, or “enemy combatant.” In my opinion, it was this purpose that was the genesis for this term. Unfortunately, it continued to morph into non-operational meanings that have, and will continue to plague analysis and resolution of these already complicated issues. And, of course, the challenge of applying this concept to presumptive civilians is a true “Gordian Knot”, defying a universally accepted standard.

  6. Interesting reading, however, I would consider that the court’s additional requirments are indeed more about the context of occupation than about applying human rights per se. Although I guess the two cannot maybe be seperated.

    In my article “Human Proportions”

    just published in EJIL I show how actually applying human rights law in addition to humanitarian law in the context of occupation can and often is actually determinetal to the rights of people living under occupation.

    Recall that in the targeted killing case itself while the court (para. 18) said that human rights law may apply when humanitarian law is LACKING. The court did not cite specifically to human rights treaties in the case, although your reading of how it imported human rights idea through the ECHR ruling is interesting.

    I think that the decision is lacking in generally abstracting from the context of the occupation and from the special duties upon an occupying force, special responsiblities (to the life and well-being of the protected persons, relevant inter alia in the proportionality analysis), but the points you list can indeed be seen as a manifestation of this context.

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