A Response to Ohlin about IHL and IHRL

The following is a guest-post by Gabor Rona, the International Legal Director of Human Rights First.  It is a response to a post at LieberCode by Jens Ohlin, a Professor at Cornell Law School, that argues international human rights law (IHRL) does not apply in armed conflict, because it is displaced by international humanitarian law (IHL).

Prof. Ohlin’s conclusion that IHRL doesn’t (and shouldn’t) apply in armed conflict cannot survive a more than superficial look at the lay of the legal and practical landscape. Essentially, his horse left the barn long ago.

International jurisprudence accepts the logic and necessity of applying IHRL in war. The explicit terms of both IHRL and IHL instruments are in accord. The complementary application of these two legal regimes is especially obvious in non-international armed conflict detention, where IHL is not only silent, but by its own terms, presumes the continued application of domestic, and therefore applicable, human rights law. Even the last significant outlier, the United States, is softening its position. See the very recent U.S. submission to the HR Committee: “506. With respect to the application of the Covenant and the international law of armed conflict (also referred to as international humanitarian law or ‘IHL’), the United States has not taken the position that the Covenant does not apply ‘in time of war.’ Indeed, a time of war does not suspend the operation of the Covenant to matters within its scope of application.”

Let’s start with Prof. Ohlin’s overly-simplified view of lex specialis doctrine. He asserts that the doctrine causes the displacement of legal frameworks other than IHL, including domestic criminal law, in armed conflict.

Actually, the relationship between domestic criminal law and IHL provides a good example of how lex specialis doctrine actually works to complement, rather than replace, other legal frameworks. Prof. Ohlin might be thinking about the privilege of belligerency enjoyed by combatants, meaning that they are exempt from the operation of domestic criminal liability for their acts of violence in armed conflict that do not violate the laws of war. But should they engage in rape, the use of biological weapons, torture of detainees or dozens of other violations of the laws of war, domestic criminal law – namely war crimes law – is the place to go for accountability. Indeed, that’s what the “grave breach” provisions of the Geneva Conventions and similar requirements in the Convention against Torture require (rather than merely permit).

Criminal law, far from disappearing in armed conflict, merely takes a second seat only where provisions of applicable IHL would cause a different result, for example, in application of the privilege of belligerency. Otherwise, criminal law remains in force.

But this is about IHRL, not criminal law. So let me give a more relevant example – the one used by Prof. Ohlin as his first argument. He says that consideration of the IHRL “right to life” shows why that body of law makes no sense in war, since killing is lawful in war. In so claiming, he ignores one of the most oft-cited and authoritative explanations of how lex specialis doctrine works: that of the ICJ in the Nuclear Weapons case. There, the court easily reconciled any sense of conflict between IHRL and IHL in reference to the “right to life” by noting that the IHRL right applies in armed conflict, but the scope of the right is determined by reference to the lex specialis, IHL. To make this even easier, note that the ICCPR does not, contrary to popular shorthand, create an absolute right to life. It prohibits the “arbitrary” deprivation thereof. What is or isn’t arbitrary in armed conflict is a matter of IHL.

To express this in more general terms, Prof. Ohlin takes a “framework exclusion” view while the more accurate interpretation of lex specialis is that of “rule exclusion” or “rule interpretation.”

In addition to the ICJ Nuclear Weapons case, there are other cases of the ICJ, ICTY, ICTR, ECtHR, and opinions of the HR Committee (the authoritative interpreting body of the ICCPR) – too numerous and well known to be detailed here, that establish and confirm the application of HRL in armed conflict, so it is odd for Prof. Ohlin to suggest that only the ICRC and a naked assertion of the Israeli Supreme Court support the notion.

But why rely on jurisprudence when the evidence is right from the horse’s (the one that’s left the barn) mouth? Take a look at the Second Additional Protocol to the Geneva Conventions, for example. The preamble is explicit on the continued application of “international instruments relating to human rights.” Not quite as explicitly, but just as effectively, Common Article 3 invokes human rights law standards where it requires that trial of detainees must respect “all the judicial guarantees which are recognized as indispensable by civilized peoples.”

I chose the two examples of IHL, AP II and CA 3, not only because they are good examples, but also because they concern non-international armed conflict (NIAC). In international armed conflict (IAC), the Geneva Conventions and Additional Protocol I are relatively thorough. They contain detailed provisions for detention and trial of detainees. But the instruments of NIAC are silent on detention authority and on the specifics of due process. This is not an omission. It is a bow to State sovereignty – recognition of the fact that in civil wars, or even in wars that spill over a State’s borders but do not involve two or more States at war with each other, domestic law continues to apply. And where domestic law applies, so, by design, does IHRL.

A look at IHRL treaties leads to the same conclusion. The Convention against Torture, for example, is explicit about application of the torture prohibition in war. The ICCPR’s derogation regime (applicable only for some of its rules when a public emergency threatens the life of the nation) is also consistent with the continued application in war of the Covenant’s provisions that are non-derogable and those that are derogable but from which no derogation has been taken.

Prof. Ohlin’s second argument is that IHL is old, while IHRL is new, and IHL “includes a robust set of norms that already govern the humane treatment of prisoners and others hors de combat.” Yes, but what doesn’t it include? IHL presumes detention in NIAC, but contains no treaty provisions governing substantive and procedural due process protections for detainees – or in ICRC terms, provisions governing grounds and procedures for detention. Why not? See above. These issues are distinct from the “humane treatment” requirements of IHL and IHRL alike. Unlike the IHRL right to life and IHRL due process provisions applicable in IAC, which are moderated by well-established rules of IHL, detention powers and fair trial provisions in NIAC remain the exclusive province of domestic law as tempered by IHRL because IHL is silent on them – thus applies the lex generalis.

Finally, Prof. Ohlin asks: “. . . (I)f IHRL applies during armed conflict, what need is there to continue developing IHL in the areas of humane treatment. . .?” Note that he, again, limits the question to treatment, which, indeed, is pretty well-covered by all IHL applicable to all armed conflicts. What he omits are the three remaining things that happen to people in war: detention, trial and targeting. As for targeting, the manner of application of human rights law is per lex specialis, as explained by the ICJ in the Nuclear Weapons case discussed above. As for grounds and procedures for detention, IHL pretty much covers the field in IAC, but IHL’s silence on these issues in NIAC leaves more-or-less total reign for IHRL.

Winston Churchill is supposed to have said that America always does the right thing – after it has exhausted all the alternatives. In the matter of IHRL’s application in war, the alternatives have pretty much been exhausted.