18 Jan 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!