21 Jan The Human Rights Committee’s General Comment No. 36 and the Right to Life in Armed Conflict
[Vito Todeschini is an Associate Legal Adviser at the International Commission of Jurists, Middle East and North Africa Programme.]
On 30 October 2018, the UN Human Rights Committee (HRC) finally adopted the long-awaited General Comment no. 36 (GC 36) on article 6 of the International Covenant on Civil and Political Rights (ICCPR). GC 36, which replaces GC 6 (1982) and GC 14 (1984), is an impressively long and thorough document, which provides a detailed account of how the HRC interprets the many facets of the right to life. This contribution intends to focus on its paragraph 64, which deals with the protection of the right to life in armed conflict (for commentary on earlier drafts see here, here and here), and which appears in Part V of GC 36 concerning the relationship of article 6 with other provisions of the ICCPR and other legal regimes. For ease of reading, the relevant text has been divided into four thematic parts.
The Interaction between Article 6 ICCPR and International Humanitarian Law
Paragraph 64 starts by addressing the interplay between the ICCPR and international humanitarian law (IHL):
Like the rest of the Covenant, article 6 continues to apply also in situations of armed conflict to which the rules of international humanitarian law are applicable, including to the conduct of hostilities. While rules of international humanitarian law may be relevant for the interpretation and application of article 6 when the situation calls for their application, both spheres of law are complementary, not mutually exclusive. Use of lethal force consistent with international humanitarian law and other applicable international law norms is, in general, not arbitrary.
The first sentence reaffirms a modern acquis of international law, namely that human rights law continues to apply in armed conflict and to the conduct of hostilities (ICJ Wall para 106). In the second sentence, the HRC reiterates its established views on the elements characterizing the interplay between the ICCPR and IHL. First, the two bodies of law are complementary and not mutually exclusive, meaning that they cannot be considered as a priori conflicting ‒ a point originally formulated in GC 31 (para 11) and confirmed in GC 35 (para 64). Secondly, when applying in armed conflict, Article 6 ICCPR may be construed in light of applicable IHL rules, typically the targeting principles of distinction, proportionality, and precaution in attacks. In this sense, the HRC relies on the principle of systemic integration codified in Article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT), according to which international norms must be interpreted taking into account “any relevant rules of international law applicable in the relations between the parties”. This is an interpretation followed by other human rights bodies as well (IAComHR Molina para 121; IACtHR Ituango para 179; AComHPR DRC para 70; ECtHR Hassan para 102).
The HRC specifies that Article 6 may be construed in light of relevant IHL rules “when the situation calls for their application”. While concise, this passage implies that in armed conflict IHL does not necessarily apply to all uses of force but only to those that have a clear nexus with the conflict (HRC 2014 Concluding Observations: USA para 9). As expressly stated by the African Commission on Human and Peoples’ Rights, “International humanitarian law on the conduct of hostilities must only be applied during an armed conflict and where the use of force is part of the armed conflict. In all other situations of violence, including internal disturbances, tensions or riots, international human rights rules governing law enforcement operations apply” (GC 3 para 33). Albeit in rather implicit terms, the HRC seems to follow this interpretation: absent a conflict nexus, the use of lethal force in armed conflict remains regulated by Article 6 ICCPR, meaning that it must be a means of last resort and be necessary and proportionate in the concrete circumstances (UN Basic Principles on the Use of Force and Firearms 4‒5; HRC Guerrero v Colombia paras 13.2–13.3). It remains unfortunate, however, that the HRC has decided not to spell out more clearly the distinction between the conduct of hostilities and the law enforcement paradigms, as the African Commission did (I criticized this shortcoming in a commentary to a previous draft of GC 36).
In the last sentence of the above-quoted passage, the HRC clarifies that lethal force employed consistently with IHL is generally not arbitrary. This statement follows a consolidated interpretive trend among human rights bodies, according to which in the conduct of hostilities the arbitrariness of a deprivation of life is to be determined by the applicable IHL rules (ICJ Nuclear Weapons para 25; IAComHR Abella para 161; AComHPR GC 3 para 32). This way, the HRC excludes the possibility for States to be held responsible under the ICCPR for acts that are lawful under IHL. On the other hand, the HRC fails to acknowledge the distinction between international and non-international armed conflicts. While via customary law many of the IHL rules on the use of force have become applicable to non-international armed conflicts, including the targeting principles, especially in this type of conflicts human rights law still has the potential to play a significant role.
This is particularly true in all those situations where it is not clear which paradigm should govern a certain use of force. For example, human rights law always regulates (potentially) lethal force employed to face a violent demonstration; when civilians taking direct part in hostilities blend into it, however, they can be targeted under IHL and the attacker must adopt all necessary precautions to spare the other civilians. As suggested by the ICRC, however, “If it were to prove too difficult to distinguish the rioting civilians from the fighters, it might be appropriate to deal with the entire situation under law enforcement, and apply an escalation of force procedure with respect to all persons posing a threat” (at 36). By not distinguishing between international and non-international armed conflicts, as well as between the conduct of hostilities and the law enforcement paradigms, the HRC has failed to openly recognize that in certain circumstances, and based on a context-specific determination, Article 6 ICCPR may acquire priority over IHL with regard to the regulation of the use of lethal force in armed conflict.
Violations of the Right to Life in Armed Conflict
The flipside of the HRC’s interpretation is that, a fortiori, uses of force infringing upon the IHL targeting principles entail a violation of Article 6 ICCPR:
By contrast, practices inconsistent with international humanitarian law, entailing a risk to the lives of civilians and other persons protected by international humanitarian law, including the targeting of civilians, civilian objects and objects indispensable to the survival of the civilian population, indiscriminate attacks, failure to apply the principles of precaution and proportionality, and the use of human shields, would also violate article 6 of the Covenant.
This passage is especially remarkable for it goes at length enumerating the kind of acts that, being inconsistent with IHL, violate the ICCPR. These are acts typically in breach of the IHL targeting principles, such as direct and indiscriminate attacks against civilians and/or civilian objects. Other human rights bodies have been more succinct in expressing this position. The African Commission, for example, concisely stated that “Any violation of international humanitarian law resulting in death, including war crimes, will be an arbitrary deprivation of life” (GC 3 para 32). The Inter-American Court, in its own turn, reached the same conclusion but did not elaborate in detail on it (IACtHR Santo Domingo Massacre paras 230, 237; with reference to the right to liberty, see IAComHR Coard paras 52‒61; ECtHR Hassan para 105).
In general, it is a positive development that the HRC correlates violations of IHL and article 6 ICCPR in relation to the conduct of hostilities. First, this reinforces the perspective of complementarity between the ICCPR and IHL based on the fact that, to an extent, they protect the same values (HRC 2006 Concluding Observations: USA para 5). And secondly, this may expand the ability of victims of IHL violations to obtain redress. Indeed, States have an obligation under article 2(3) ICCPR to provide individuals with effective remedies, both of a procedural (access to a court or equivalent body) and substantive nature (reparations). If an attack, by failing to comply with IHL and endangering the life of civilians or other protected persons, results in a violation of Article 6 ICCPR, the victims or their next of kin may seek redress under the ICCPR against the responsible State (see also HRC 2014 Concluding Observations: USA para 9). Such a development is all the more important considering that reparation claims solely based on IHL tend to be rejected by domestic courts. This is due to the lack of clear IHL norms allowing victims to bring claims directly against the responsible State (Varvarin case; see also CIHL Study 544‒545; Henn 617‒623).
Interestingly, the HRC holds that article 6 ICCPR is breached not only when a violation of IHL results in the killing of civilians or other protected persons, but also when it entails a risk to their lives. By placing the focus on the risk, the HRC acknowledges that article 6 may be violated even when no death or casualty occurs. In this sense, the HRC applies to the context of armed conflict its expansive interpretation of the protection of the right to life expressed in paragraph 7 of GC 36: “The obligation of States parties to respect and ensure the right to life extends to reasonably foreseeable threats and life-threatening situations that can result in loss of life. States parties may be in violation of article 6 even if such threats and situations do not result in loss of life”. The HRC’s interpretation resembles that of the Inter-American Court in the Santo Domingo Massacre case. Here, the Court held that an attack, which had failed to respect the IHL targeting principles, was in breach of the rights to life and personal integrity under article 4‒5 of the American Convention on Human Rights (ACHR). The Inter-American Court connected the violation of these rights with the fact that the affected individuals had been endangered “by the mere fact of having been the object of […] indiscriminate attacks, irrespective of whether anyone was killed or injured. […]” (para 237).
As a consequence, attacks omitting to comply with the IHL targeting principles ‒ e.g. failure to adopt the necessary precautions to spare civilians ‒ but that do not result in casualties may amount to violations of the right to life under the ICCPR and the ACHR and entitle the affected individuals to claim reparation. Legally speaking, this interpretation has the potential to open up a full range of new possibilities to victims of unlawful use of force in armed conflict, enhancing their ability to seek redress for the harm suffered. In fact, by means of the right to a remedy provided for under human rights law, individuals may claim reparations for violations of IHL that would otherwise not succeed in obtaining any form of justice.
According to paragraph 64 of GC 36:
States parties should, in general, disclose the criteria for attacking with lethal force individuals or objects whose targeting is expected to result in deprivation of life, including the legal basis for specific attacks, the process of identification of military targets and combatants or persons taking a direct part in hostilities, the circumstances in which relevant means and methods of warfare have been used, and whether less harmful alternatives were considered.
In this passage, the HRC solicits States to be transparent regarding the targeting process, clarifying key elements such as: the legal basis for carrying out attacks ‒ IHL or human rights law; the process of identification of targets, including the criteria under which civilians are deemed to be directly participating in hostilities; the rationale for the choice of specific weapons and tactics and the way they are employed concretely; and the justification for using lethal force to neutralize an individual instead of less harmful means (see also HRC 2014 Concluding Observations: USA para 9). It is relevant recalling that the African Commission has made a similar point contending that, when circumstances allow to, the right to life is best ensured by capturing, rather than killing, an individual (GC 3 para 34).
The request to make public the criteria governing the targeting process in armed conflict is unlikely to receive a warm welcome by States. It is a proposal that may easily be opposed on grounds of national security, military necessity and strategy. On the other hand, transparency is crucial to guarantee public scrutiny over States’ operations involving the use of lethal force against individuals as well as the accountability of the State apparatus and of those responsible for planning and executing attacks. As the African Commission aptly affirmed, “Transparency is a necessary part of accountability. Transparency about laws, policies, practices and the circumstances of any limitations of the right to life […] is a necessary element in fulfilling the right to life” (para 21).
The last sentence of paragraph 64 of GC 36 provides that “[States] must also investigate alleged or suspected violations of article 6 in situations of armed conflict in accordance with the relevant international standards”. The obligation to investigate alleged human rights violations in armed conflict has been affirmed by other human rights bodies as well (ECtHR Al-Skeini paras 161‒162; IACtHR Santo Domingo Massacre paras 155‒158; AComHPR GC 3 paras 17, 20). The HRC’s statement clarifies that investigations are to be conducted in line with international standards. In this respect, paragraph 28 of GC 36 provides that investigations must be “independent, impartial, prompt, thorough, effective, credible and transparent”. These standards are reflected also in the Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016), which the HRC refers to in footnote 270 (here omitted).
According to the Minnesota Protocol, such standards always apply to investigations of potentially unlawful death outside the conduct of hostilities, e.g. when the victim is detained (para 16). During the conduct of hostilities, specific circumstances may impede their full application. This typically occurs when the crime scene is not accessible to investigators, for instance because active fighting is still ongoing or when a State does not have control of the territory, such as in the course of bombing campaigns without ‘boots on the ground’. The Minnesota Protocol specifies that context-specific limitations to the fulfilment of these standards must be publicly explained (para 20). Under all circumstances, however, States must endeavour to their best to investigate as effectively as possible in accordance with the international standards (Alston 2006 Report para 36).
An interesting normative development is that, based on the HRC’s position, the said standards may become applicable to investigations of alleged war crimes. This is relevant in light of the fact that IHL does not expressly provide for similar standards. When a breach of article 6 ICCPR is coterminous with a violation of IHL, the duty to investigate is prompted under both bodies of law. In this respect, the applicability of the ICCPR alongside IHL will require States to respect the human rights law standards of investigations, especially as reflected in the Minnesota Protocol. This constitutes a further case of complementarity between the two, particularly an instance in which the ICCPR supplements the lack of clear standards of investigation within IHL.
GC 36 represents an important step in the clarification of the relationship between human rights law and IHL, whereby the HRC has authoritatively contributed both to entrench existing interpretive trends and consolidate emerging ones. It remains to be seen how States will react to certain of the HRC’s stances: will they accept or reject its expansive interpretation of the violation of article 6 ICCPR during the conduct of hostilities, the calls for transparency re the targeting process, and the applicability of human rights law standards to war crimes investigations? Certainly, GC 36 does a good job in carefully navigating between balanced and innovative views on the right to life in armed conflict and in setting reasonable normative standards States should follow to guarantee its effective protection.