Another Round on IHL and IHRL

Another Round on IHL and IHRL

Gabor Rona posted a response to Jens Ohlin yesterday.  Jens responded at LieberCode — and now Gabor has responded to Jens’s response (and John Dehn’s comment on his OJ post).  Here is what Jens wrote (reposted with permission):

Many thanks to Gabor Rona for taking the time to continue this conversation.  There’s a lot in Rona’s post, but I want to cut to the heart of the conceptual issue here regarding the inter-operation of these bodies of law.

In terms of the relationship between IHL and IHRL, and the notion that IHL is a lex specialis, Rona ascribes to me a view that he describes as framework exclusion, as opposed to the more reasonable rule exclusion.  Actually, though, I think I would be willing to subscribe to rule exclusion myself, so we should be on the same page.

Rule exclusion, I take it, means that if there is an applicable rule of IHL on a given point, then IHL applies and IHRL does not apply.  Again, I’m happy with that point of view, but I’m not sure that everyone else is.

For example, in the Israeli Targeted Killings decision, the court applied the IHL rule that allows the targeting of civilians who are directly participating in hostilities (DPH).  As everyone knows, IHL permits the intentional targeting of civilians who DPH because they perform the function of combatancy.  However, the Israeli TK decision went further.  It concluded, in para. 40, that “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.”  The court then went on to discuss proportionality and the need to attempt capture (if feasible), rather than kill, based on the notion of proportionality.

This is a curious result.  The DPH standard is clearly an IHL rule.  However, the need to attempt capture (if feasible) of an individual engaged in combatancy is not a core IHL concept.  Rather, it allegedly stems from IHRL.  That’s why many people have interpreted the TK decision as reading IHRL norms into the applicable IHL norm in that case.

So what’s at issue here is the co-applicability of IHRL and IHL with regard to the same rule.  It’s precisely that kind of co-applicability that I find curious.  Even under the “rule exclusion” notion of lex specialis, it is hard to countenance. How do both bodies of law apply at the same time with regard to the same norm?  That’s one of the reasons why the development of the ICRC Interpretative Guidance on Directly Participating in Hostilities became so contentious.  The Interpretative Guidance document followed the methodology of the Israeli TK decision, to the apparent dismay of some of the participants in the project.

I don’t have a strong view about detention, although one can see the current debate about detention through this lens.  I understand Kevin’s point to be that IHRL applies to detention in NIAC because there is no IHL rule regarding detention (until the end of hostilities) in NIAC.  I am inclined to disagree (though my mind remains open), but only because I think there is, in fact, an IHL rule regarding detention in NIAC.  First, there’s CA3 and APII, both of which demand certain treatment regarding detainees.  Second, I suspect that customary international law both permits detention until the end of hostilities in an NIAC and demands humane treatment of those detainees (though again my mind is open).  Marty and Steve’s post suggests that the detention rules of IAC apply by virtue of analogy in NIAC, but I think the better formulation is to suggest that some of those detention rules apply by virtue of custom.  That being said, I don’t have a particular view on the specifics of which detention rules apply by custom, and I wouldn’t want to be put in the position of defending the current Administration’s view or practice on this.  Rather, I want to emphasize the underlying structure of this debate, which is the existence or non-existence of an IHL norm regarding detention that applies in any given factual circumstance.

At a certain point, the applicable rules of IHL, (including the customary ones applicable in NIAC), become so comprehensive that one might describe them as a framework, though I don’t think much hinges on this language.  The framework of IHL is essentially the core concepts of combatants/civilians/DPH-CCF, and much of it is now jus cogens.

It strikes me as curious that human rights activists are so quick to cabin CIL application of the IHL rules of IAC to NIAC.  To my ear, it is one of the great advancements of the last few decades: that the rules of warfare must be respected and that no nation can ignore them simply because the armed conflict is internal. (Incidentally, this was also the great fault of the early Bush Administration: to audaciously proclaim that the armed conflict with al-Qaeda was unconstrained by IHL and LOW principles.)  It also strikes me that it is one of the great advancements that ICL case law has given us. Why do some human rights activists resist this laudable move? I suppose they want to fight the expansion of IHL norms because, in their absence, IHRL norms can swoop in to fill the gap, and in the process better protect the rights of the vulnerable. I’m not sure I share this strategic vision, though my skepticism does not make their view wrong.  (Ultimately, I have more faith that IHL, as a body of law, will make the situation on the ground better.)  The legal fight, though, is about the existence of the underlying IHL norm.

One final quick point.  Rona says a few things about the relationship between IHL and domestic criminal law that I obviously agree with, but also a couple of points that I disagree with.  First, the agreement: of course there is room for domestic criminal law during armed conflict.  The privilege of combatancy changes the underlying norm regarding killing (which is what I was talking about in my original post), but if an unprivileged combatant kills someone then he has absolutely violated domestic criminal law — absent self-defense of course.  This then raises the further question of whether the killing also violates the LOW (killing in violation of the laws of war) and could be prosecutable by a military commission.  Kevin and a number of others have written extensively about this theory and I share their concerns about it.  Undeniably, though, this hypothetical killing represents a violation of domestic criminal law.

Now the disagreement.  Rona goes on to say, regarding privileged combatants, “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.”  That doesn’t really make sense to me.  The place to go for accountability in such a situation is ICL because war crimes are one of the three core crimes of ICL.  Now, it is true that the conduct might also violate domestic criminal law if there is an applicable criminal law norm in question.  So a rape could potentially be prosecuted as a war crime under ICL or it could be prosecuted under the criminal law of one of the interested states (either based on territorial jurisdiction or active personality).  Both bodies of law prohibit the conduct because their respective norms are basically co-extensive.

But that’s not really an example of co-application in the sense that interests me.  In the war crime case, two or more bodies of criminal law (one international, the others domestic) prohibit the same conduct.  Co-application of IHRL and IHL involves the importation of principles of IHRL to inform one’s understanding of rules that are governed by IHL.  In the Israeli TK decision, this took the form of severely restricting the principle as it existed under IHL, which is what generated so much controversy at the ICRC.

Here’s a better, and more extreme, example.  Suppose the domestic penal law of country A prohibited the possession and use, not of biological weapons, but of automatic weapons (machine guns). Could an entire army be prosecuted for violating this domestic criminal law?  In that case, the domestic law would severely restrict – in fact eviscerate — the IHL norm (privileged combatancy), and there would be something specious about permitting co-application of the norms in this context.

And here is Gabor’s new response:

Many thanks to Jens Ohlin and John Dehn for your thoughtful, detailed remarks.

Jens is absolutely correct that the Israeli Supreme Court takes neither a framework exclusion nor a rule exclusion view of lex specialis doctrine when it adds a human rights caveat (arrest if possible) to an IHL rule (“combatants” may be targeted).  But I’m not sure what this adds to (or detracts from) our general discussion about complementarity between IHL and IHRL. But there is nothing about adding an extra layer of protection against targeting as a matter of domestic law or policy that undermines the theory of IHL/IHRL complementarity. When the US accorded PoW status to detainees who did not meet the criteria outlined for such status in GC III, no one screamed “violation of IHL!” I think this is analogous.

Jens also disagrees with the notion that IHL does not cover NIAC detention powers (leaving space for the necessary application of IHRL, say I). He cites the references to detention in CA 3 and AP II in support of his position. But the point is that neither CA 3 nor AP II states grounds and procedures (compare GCs III and IV and AP I, applicable in IAC, where grounds and procedures must be articulated because privileged belligerents cannot be detained pursuant to criminal law). As I’ve previously noted, this is natural. The drafters understandably assumed the continued application of domestic law in NIAC, where there are no non-state privileged belligerents.  And where domestic law goes, so goes IHRL. In fact, AP II makes explicit reference to the continued application of IHRL, while CA 3 implies it in its reference to indispensible judicial guarantees and tons of international jurisprudence says the same.

I also understand Jens to suggest that the co-application of criminal law and IHL does not support the claimed co-application of IHRL and IHL. I agree. The reason I went into detail about domestic criminal law is because I understood Jens to suggest, as evidence of what I consider to be a misguided “framework exclusion” view of lex specialis, that criminal law doesn’t apply in armed conflict. (He said this in his first post:  “IHL is a lex specialis, in the sense that it displaces other bodies of law, including domestic criminal law, with a set of radically different norms based on reciprocity, namely that combatants can kill each other with impunity but must protect civilians and others hors de combat.”)

I now understand Jens to have meant that IHL does not displace domestic criminal law in all circumstances, but does displace it in the case of privileged belligerents who engage in conduct that is permitted under IHL.

I also agree with Jens that criminal liability in armed conflict can be pursuant to applicable international criminal law. But the US War crimes statute, while surely reflecting aspects of criminal law applicable in armed conflict, is just as surely domestic law. The point is that if both IHL and criminal law (whether domestic or international) apply, then IHL is not the exclusive body of law applicable in armed conflict. In fact, the US Constitution’s “define and punish” clause suggests that States can make up their own war crimes. Take for example the US MCA which invented the war crimes of conspiracy and “murder by an unprivileged belligerent in violation of the laws of war,” which is interpreted by the US as equating unprivileged belligerency with criminality, even though IHL says no such thing. In other words, here is domestic law creating crimes that are unknown to IHL and applying them to situations otherwise governed by IHL.

But Jens’ most important point is another one where we agree: that it is wrong to apply IAC grounds and procedures for detention to NIAC “by analogy.” I’ve already detailed why IAC and NIAC are, and should be, treated differently and won’t repeat that here.

On to a couple of points made by John Dehn. John says that I “cite ICJ advisory opinions and other special tribunals rather than actual sources of international law for the proposition of perfect IHL/IHRL complementarity.” First, John omits that I also cited the text of AP II and CA 3. But that aside, the reasons for his objection to the assertion of jurisprudence of “special tribunals” is unclear to me. On what basis do we simply wave off the considered and unanimous opinions of the ICJ, ICTY, and ICTR that IHRL and IHL are complementary? As for the ECtHR, John distinguishes their similar jurisprudence on the basis that the European Convention has a different scope of application provision than does the ICCPR. This is a reference to the old saw, also dismissed by the HR Committee, that the ICCPR has no extraterritorial application. But note that even if that were true, it would not be cause to deny complementarity between IHRL and IHL; it would only be cause to deny that a State has IHRL obligations when it, say, tortures people in wars on foreign lands, a position that, by the way, is explicitly rejected by the Convention against Torture.

John also suggests that the appearance of IHL treaty provisions that mirror IHRL provisions is evidence that IHRL doesn’t apply in armed conflict. But doesn’t that argument go up in smoke with one look at the explicit reference in AP II to continued application of “human rights instruments” and in CA 3 to “indispensable judicial guarantees?”

Finally, I fully agree with John’s observation 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 conventional international law.” But this is an argument for filling in the potholes, not for throwing away the machinery that does so.

My thanks once again to Jens, Gabor, and John for such an informed and thoughtful discussion!

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John C. Dehn

Thanks Gabor for these thoughtful responses. Of course, I do recall addressing your treaty references in my earlier comment.   I disagree that the HR Committee’s view of the ICCPR is determinative of anything.  Whatever the Committee says about extraterritoriality of the ICCPR runs contrary to its very text, and that fact directly related to my point about the imperfect alignment of AP II, CA3 and ICCPR in the scope of their application.   What I would say about the special tribunals is that there are many reasons to take what they say with a grain of salt.  Their decisions are surely evidence of the law, but not law.  Scholars and diplomats often pick and choose what they like from them and dismiss the rest because often their analysis, particularly of customary international law, is so weak and cherrypicked.  IHL and IHRL complementarity is an area ripe for such picking and choosing because it is assumed to be the law, not demonstrated to be the law by careful treaty interpretation or thorough analysis of state practice (and opinio juris). Finally, I do agree with you that the lacunae are an argument for filling in the potholes.  I meant to suggest… Read more »

Kevin Jon Heller

“Whatever the Committee says about extraterritoriality of the ICCPR runs contrary to its very text.”

No, it doesn’t.  It runs counter to one completely contestable interpretation of the text.  And it is entirely consistent with another equally defensible interpretation of the text.  Relying on “the text” of the ICCPR gets us precisely nowhere.

John C. Dehn

Kevin, I may have said it better in response to Jordan in the thread below, that “to say that territory and jurisdiction are not necessarily coextensive is not to say that there is [spatially] 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 being made 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.”

Kevin Jon Heller

For a good discussion of this issue, see pp. 222 et seq in Marko’s excellent book.

 

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John C. Dehn

I guess I should also say that the incorporation of certain human rights into IHL by reference, such as Gobar notes in CA3, is not really an argument supporting expansive complementary application of human rights not similarly incorporated.  It would actually seem to be more of an argument against it (incorporation of some could be read as implicit rejection of the applicability of others).  A more limited view of IHRL incorporation would be more in keeping with the negotiating history of CA3. I will readily admit, though, that the record surrounding the adoption of AP II shows that states were mindful of its relationship to the ICCPR.  As both treaties expressly deal with internal matters, that is a different case.  However, it still doesn’t answer the mail on the full range of IHL/IHRL complementarity in places not within the territory or otherwise under the actual governing power of a state.  My earlier comment focused on trans-nationational, non-international armed conflict, not internal armed conflict.  In internal conflict, I do think that there is a much clearer complementary IHL/IHRL relationship. Finally, I did not and would not argue against the application of the Convention Against Torture in armed conflict.  But Gabor’s use of that treaty to… Read more »

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JordanPaust

Response… Instead of theory, should we focus on the issues from the standpoint of a military commander on “the battlefield” and more generally in a theatre of war and ask the questions, WHO would have a relevant human right even though global human rights law applies universally and in the context of war (international or non-international) and WHAT human right are we to consider?  From that perspective, I would say that the first issue has been answered (and for some of you, please just assume the premise), that global human rights law applies; but there are two other issues: the who and the what. With respect to the who, when the commander is operating outside the territory of his country and in a foreign country that is not occupied by his country, the persons who have or can enjoy human rights protections on the battlefied are, using General Comment No. 31 re: the ICCPR, those what are under the actual “power or effective control” of the military commander’s force.  These are also the persons who are “in the hands of” and “in the power of” such commander’s force with respect to the laws of war.  Human rights law, then, does not… Read more »

John C. Dehn

All, more apologies for the typos above, “dagrading” and the like.  I really should have learned to type (and proof read) at some point in my life.

Jordan,

Your approach is certainly logical.  But I would definitely read “jurisdiction” as requiring more than “power and effective control” over an individual outside the territory, or flagged or public vessels (or Guantanamo), of the U.S.  I think there is a much more sensible (and less expansive) reading of the ICCPR.  Further, I think Gabor argues for even broader application of IHRL than you suggest.  So I guess what I would say is that your approach still assumes a scope of ICCPR applicability that is highly questionable.  That very basic, practical question must be answered before we can discuss the relationship of potentially overlapping bodies of law.

Jordan
Jordan

Response… But John, this debate concerning what I would call the first issue doesn’t seem to get us very far in terms of answering the second and third issues, which I suspect is “where the action is.”  Is there any right within the ICCPR that obviates what a commander in the “battlefield” can lawfully do under the laws of war?  I should add that art. 8 or the ICCPR prohibits slavery and the slave trade, but with respect to persons in the hands or power of a military commander’s force I would think it would be easy to conclude that putting detainees into slavery or the slave trade would be inhumane if not cruel treatment.  Art. 14 won’t apply during battle, but later when there is an attempt to prosecute — but then the customary human rights to due process that are reflected in Art. 14 are incorporated by reference in common article 3 of the GCs.  See, e.g., Hamdan.  And what is reflected in common art. 3 is CIL that is also applicable in an international armed conflict (even if Protocol I, art. 75 does not apply to some non-party (and I note the the U.S. is a non-party… Read more »

Benjamin Davis
Benjamin Davis

I am summarizing the views:

1)  NIAC with analogies from IAC exclusively with no IHRL

2) NIAC with IHRL

Another approach maybe is to maybe drill down and think about the nature of the NIAC?  Some NIAC’s are maybe more kinetic like an IAC and others are less kinetic like internal disturbances (I am thinking Occupy Wall Street protest that becomes violent or a riot like we had in the 60’s in cities) in which IHRL would normally apply.  The commander in these different settings is working in spaces with bodies of law that lead to similar results but drawing from the different legal regimes.  More killing and death allowable in the more kinetic space and less killing and death allowable in the more internal disturbances space.  Just a thought.

Best,
Ben