A Response to Ohlin about IHL and IHRL

by Gabor Rona

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.


13 Responses

  1. Gabor,

    To an informed reader, your position is more tenuous than you indicate.  Jens Ohlin may assert zero complimentarity in the application of IHL/IHRL…a position hard to reconcile with the concept of crimes against humanity in armed conflict.  You assert perfect complementarity to the point of “rule exclusion.”  In my humble opinion, the truth lies somewhere in the middle. 

    We should not doubt that some human rights apply in armed conflict: the rights to be free from genocide and other crimes against humanity come readily to mind.  Beyond that, the legal landscape is less clear.

    Most interesting to me is your choice of authority to support your perfect complementarity position.  You start by saying:

    “International jurisprudence accepts the logic and necessity of applying IHRL in war. The explicit terms of both IHRL and IHL instruments are in accord.”

    You then cite ICJ advisory opinions and other special tribunals  rather than actual sources of international law for the proposition of perfect IHL/IHRL complementarity.  It is espcially inappropriate, I think, to refer to ECtHR decisions, a body that primarily implements a regional, more specific treaty for its states party. These decisions say little about the IHRL obligations of the rest of the world, even less than non-binding “advisory opinions” of the ICJ, which as a purely legal matter bind no entity and therefore provide little more than rhetorical value in international discourse and diplomacy.  (I do not mean to indicate any hostility about international law in general, but rather to overly expansive views of its actual sources.  That international tribunals have accepted the “logic and necessity” of complementary IHL/IHRL application in specific cases is not to say that they have determined that this view is settled, universal law.)

    You later discuss CA3 and AP II — apparently the treaties in “perfect accord” with these decisions.  AP II clearly applies only to internal armed conflict.  CA3 has been asserted to apply to any and all non-international armed conflict (NIAC), even transnational armed conflict with a non-state actor, or only internal armed conflict in the territory of a high contracting party.  How these treaties coupled with the ICCPR provide support for “perfect” complementarity in a state’s legal obligations anywhere in the world escapes me. 

    The complementarity of IHRL, particularly the ICCPR, in extraterritorial or transnational NIAC is not at all clear, and imperfect at best.  By its terms, the ICCPR applies within the territory and jurisdicition of signatory states, not to extraterritorial matters.  Even if we impose a functional definition of “jurisdiction” upon and exclude “territory” from the ICCPR, a competely atextual approach, it can’t possibly cover all aspects of extraterritorial NIAC.  There is an assumption being made (or teleological interpretation) that IHRL in all its particulars is universal and completely divorced from places that a state actually “governs.” 

    At any rate, to the extent that the ICJ or other tribunals have assumed perfect complimentarity between IHL and IHRL obligations, it seems to be definitively not supported by the text of the underlying treaties you cite.  Their territorial scope of application is not perfectly aligned.  Additionally, it is difficult to understand why Art. 75 of AP I or Art. 6 of AP II would be necessary should there be perfect complementarity of IHRL and IHL.  Both are worded as gap fillers and the rights they protect are almost identical to rights preserved in the ICCPR. 

    Thus, it seems that there is a fair argument that lacunae exist in the relative scope of IHL and IHRL application that have not yet been filled by actual customary or coventional international law.  That international tribunals with limited jurisdiction seek to minimize such lacunae is unsurprising but not determinative of the matter.

  2. Response…
    Gabor Rona is generally correct, especially since there is absolutely no geographical, temporal, or contextual limitation with respect to member duties under UN Article 56 to promote universal respect for and observance of human rights (and, therefore, to not violate them) and there are none under, for example, the ICCPR’s absolute rights/prohibitions (e.g., of torture).  There is NO international treaty that contains the Latinized nonsense of so-called lex specialis and even for a minority of textwriters who pretend that the concept is based in real-world general patterns of practics and opinio juris, the concept has differenct meanings — only one of which is displacement.  PLEASE see 19 J. Transnat’l L. & Pol’y 237, 263-70 (2010), especially footnote 69 therein and all of the cases and materials cited, available at http://ssrn.com/abstract=1520717
    Also, with respect to the human right to life, PLEASE recall the the U.S. is not a European state and that the decisions of the European Court of Human Rights interpreting the European Convention’s more strict limitations on the right to life are NOT APT!  The laws of war actually provide a more stringent set of criteria than the ICCP’s loose standard wrapped around the prohibition of an “arbitrary” deprivation of life!

  3. Apologies again for the many typos…

  4. Jordan, how would you reconcile your thoughts on UN art. 56 with CA1 to the GCs of 1949, stating, “The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.”  This seems to push states towards observing IHL in all armed conflict, rather than IHRL in all circumstances, including armed conflict.

  5. Response…
    John: Well, first, is there an unavoidable clash between Geneva law and customary human rights law that is incorporated by reference in Articles 55(c) and 56 of the U.N. Charter?  For example, where human rights law merely requires that detention not be “arbitrary” (ICCPR art. 9) Geneva Civilian Convention sets a higher limit, GC arts. 5, 42-43, 78.  Is this a “clash”?  Perhaps not, and both can be met in a given circumstance when GC standards are met.
    Second, if there is an unavoidable “clash,” Article 103 of the U.N. Charter requires the primacy of customary human rights law.  If any law of war treaty would expessly exclude customary human rights law, the UN Charter would trump it.

  6. Response…
    And John: you “misread” Art. 2 of the ICCPR in view of the subsequent recognitions of the H.R.Comm. of the ICCPR (e.g., Gen. Comm. No. 31) and others.  To read Art. 2 as if it merely applied within the territory of a party (an unacceptable ploy of the Bush-Cheney regime) would make the next phrase nonsensically redundant because persons within the territory of a party are quite obviously within its jurisdiction.  Necessarily, therefore, the phrase “subject to its jurisdiction” has a different meaning and reach.  One can recognize that a proper textual interpretation must read like: all individuals within its territory and all individuals subject to its jurisdiciton, elsewise that is.  And then when one adds the international community’s subsequent recognitions, as in Gen. Comm. No. 31, we can recognize that the reach of the ICCPR is indeed extraterritorial and applies when a person is within the actual “power or effective control” of a party.  The same reading of the CAT has been recognized by the CAT Committee and others.  
    Moreover, under Art. 31 of the Vienna Convention on the Law of Treaties, one pays attention to the object and purpose of the ICCPR, subsequent practice and opinio juris, and other international law — such as the duty of states under Articles 55(c) and 56 of the U.N. Charter to promote “universal” respect for and observance of human rights and, therefore, to not violate them anywhere that a party has actual power or effective control over a particular person.  This universal reach under the Charter is also mentioned in the preamble to the ICCPR, which adds to the proper interpretation. 

  7. Article 21(3) of the Statute of the International Criminal Court requires that the “application and interpretation” of the Statute, elements of crimes and its rules of procedure and evidence “be consistent with internationally recognized human rights.”  Need I say more?

    Francisco Forrest Martin

  8. FFM,

    To be honest, I think you do.  That provision is deeply obscure and profoundly controversial.  I, for one, do not think it in any way gives the Court license to ignore the Rome Statute’s substantive provisions whenever it believes that applying them might infringe upon human rights.  What is your interpretation?

  9. Just a quick point about Article 103 of the UN Charter.  Article 103 states that Charter obligations prevail over non-Charter obligations, thus establishing that the Charter is hierarchically superior to other international norms.  It does not, however, say anything about human rights law.

  10. Jordan,

    I don’t think I misread the ICCPR text, I think it is being purposefully interpreted.  That’s fine if the states party generally interpret it that way.  I just don’t think the HR Committee has the power or authority to difinitively determine the mater.  Regardless, to say that territory and jurisdiction are not necessarily coextensive is not to say that there is unlimited, universal application of ICCPR obligations.  Historically, states have had jurisdiction to prescribe and enforce law on their flagged vessels at sea and public vessels in foreign ports.  That is extraterritorial jurisdiction to be sure, but far from universal.  I would read the ICCPR to apply in those cases.  For that reason, though, I question why there is no careful connection between ICCPR obligations and places where states actually “govern.”  It would seem to be necesary under any reading of the ICCPR that takes account of its actual text.

  11. Response…
    Jens & John: as mentioned in some postngs (I think) and partly above, the preamble to the ICCPR is part of the “text” and relevant to proper interpretation of the reach of the ICCPR.  It expressly refers to the “universal” duty of states under the Charter to promote “universal” respect for and observance of human rights and, therefore, to not violate human rights.  General Comment No. 31 is, for example, consistent with recognition of the universal reach of human rights and the fact that, second issue, nonetheless, only certain persons have certain rights, such as those who are within the actual “power or effective control” of a party to the ICCPR.  Article 103 of the U.N. Charter necessarily covers obligations of members under Article 56 of the Charter,which incorporates those under Article 55(c) — to promote “universal” respect for and obsrvance of human rights.
    Therefore, the obligations and reach under the Charter trump any inconsistencies in other human rights law and/or the laws of war that are based in international agreements and the obligations and reach under the Charter are highly relevant to proper interpretation of the otherwise ambiguous and potentially broadreaching “text” of Article 2 of the ICCPR.  Moreover, one wants to consider the “object and purpose” of the ICCPR and any relevant international law when properly interpreting the ICCPR.  Vienna Conv., art. 31.  Additionally, Article 5(2) of the ICCPR is quite useful when interpreting the reach of Article 2, because it expressly recognizes that “there shall be no restriction upon or derogation from and of the fundamental human rights recognized or existing … pursuant to law, conventions….”  Quite clearly, member obligatoins under articles 55(c) and 56 of the Charter and the primacy thereof mandated in Article 103 of the Charter is part of “law” and a convention for any member of the U.N.

  12. Prof. Heller:

    How is Art. 21(3) of the ICC Statute “deeply obscure and profoundly controversial”?  Granted that the Article’s requirement that the ICC’s Elements of Crimes, etc. be construed in conformity with “internationally recognized human rights” sweeps broadly, but that is not the same thing as being “deeply obscure.”  My citation of this provision was to make the point that there is conventional law that requires that IHL must be construed in conformity with IHRL — a point that I believe was disputed by Prof. Dehn when he mentioned “actual sources of international law.”

    As for Art. 21(3) being “profoundly controversial,” it is obvious that some folks believe IHL should not be construed in conformity with IHRL — as evidenced by this discussion.  But, so what?  I’ll cast my lot with all of the states that signed and/or ratified the Treaty of Rome (ICC Statute) that explicitly requires most IHL to be construed in conformity with IHRL and the numerous international tribunals that have recognized this requirement.  Perhaps, some academics and politicians unfamiliar with the basic requirements of treaty interpretation will argue that IHL cannot be construed in conformity with IHRL.   As a litigator, I certainly cannot argue that in good faith before a court. 

    As for your question regarding the ICC Statute infringing upon human rights, that’s a complex question turning on a number of different issues.

    Francisco Forrest Martin

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