13 Jan The Soleimani Case and the Last Nail in the Lex Specialis Coffin
My last post raised a few questions on how we should approach the issue of targeted killings as first strikes in international armed conflicts (IACs). The ensuing Twitter debate proved very enriching, generating some answers and many more questions. This time around, I would like to elaborate on some of these answers and what do I make of their implications for IHL going forward.
The main question my previous post asked was whether the killing of Soleimani was a lawful killing. After all, a first strike triggers IHL and, under IHL, Soleimani was a lawful target. Over at Twitter, I found Adil Haque’s argument the most convincing: the killing of Soleimani would be illegal even if IHL applied because jus ad bellum violations are ipso facto violations of the right to life. In support, he offered paragraph 70 of General Comment 36:
“States parties engaged in acts of aggression as defined in international law, resulting in deprivation of life, violate ipso facto article 6 of the Covenant. (…) States parties that fail to take all reasonable measures to settle their international disputes by peaceful means might fall short of complying with their positive obligation to ensure the right to life”.
This would mean, therefore, that for the purposes of the ICCPR, a strike carried out in violation of jus ad bellum would constitute an arbitrary deprivation of life.
Another important addition to the conversation came from Aurel Sari. He (correctly, in my opinion) pointed out that for IHL purposes, the strike itself is conceptually different from the attack. So, in most cases, IHL will be triggered before the first “strike”, when a border is crossed with hostile intent.
Now, here’s where things got interesting for me. Because if both statements are right, then maybe (and at long last) we may have broken the theoretical basis for the lex specialis doctrine for good. Allow me to elaborate.
As most readers will know, lex specialis was created by the International Court of Justice in the Nuclear Weapons Case, to try to explain the relationship between international humanitarian law (IHL) and international human rights law (IHRL). Up until that time (and in some cases even until today) the majority opinion was that in times of armed conflict, IHL fully displaced IHRL. This flew in the face of human rights treaties, though, that generally state their continued application in times of war or national emergency. For this reason, many scholars concluded that IHRL continued to apply in times of armed conflict, without being displaced. The ICJ, in turn, tried to find a middle ground between these positions by using the “lex specialis” concept. It stated that both regimes applied, but that, given that IHL was the lex specialis in time of armed conflict, human rights treaties should be interpreted in light of its provisions. In the Courts words:
“In principle, the right not arbitrarily to be deprived of one’s life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities. Thus whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the Covenant, can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself”.
Now, while this may have been a practical solution to solve the problem of IHL/IHRL co-application in the case of the right to life, it quickly became clear that the relationship between the two bodies of law would be much more complicated than that. Not every rule of IHRL had a convenient “arbitrary” standard that could be filled with IHL content via lex specialis. Trying to address the fallout, in subsequent cases, the ICJ changed the dicta, adding obscurity and confusion to the concept. In the Palestinian Wall opinion, it stated:
“As regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law. In order to answer the question put to it, the Court will have to take into consideration both these branches of international law, namely human rights law and, as lex specialis, international humanitarian law”.
This formulation was, of course, contradictory. The lex specialis principle is a legal concept through which the special law takes precedence over the general law. It is not a principle that allows for the general and special law to apply depending on context. Rather, this way of thinking, as Vito Todeschini states in an extremely helpful article, reflects the concept of systemic integration, not lex specialis. Indeed, Article 31(3)(c) of the Vienna Convention on the Law of Treaties, states that in the interpretation of a treaty “[t]here shall be taken into account (…) any relevant rules of international law applicable in the relations between the parties”. This means, as Todeschini states, that “when more than one norm is applicable to a certain case, the interpreter should construe all these rules in accordance with a sense of coherence and meaningfulness expressed by international law as a system, in a way that allows, as far as possible, to view norms pertaining to different regimes as a single set of compatible obligations”.
It is this idea of a concatenated system of rules that the Court was making reference to. Not the general idea that special law trumps general law. In Todeschini’s diagnosis, “it appears that the ICJ implicitly resorts to the principle of systemic integration, yet under the guise of lex specialis”. It is likely because of this that in the Armed Activities on the Territory of the Congo case, the Court once again changed the formula, merely concluding that “both branches of international law, namely international human rights law and international humanitarian law, would have to be taken into consideration”, without any mention to lex specialis. By this time, the IHL academic community was able to agree on mostly one thing: the Court had been extremely unhelpful in solving a complicated issue.
Let’s now look at the Soleimani case with this background in mind. We have set out as premises that (i) a strike that violated the jus ad bellum is arbitrary and therefor unlawful under IHRL and that (ii) IHL of IACs applies from the moment an attack begins with hostile intent, and therefore the first strike will usually occur after IHL is triggered.
Based on these two premises, we can conclude that both IHL and IHRL are applicable at the same time, but – and here is the main takeaway – their tests for determining the lawfulness or unlawfulness of Soleimani’s death would fundamentally differ. Under IHRL, Soleimani’s death would be an arbitrary deprivation of life, because the strike occurred in violation of jus ad bellum. Under IHL, however, Soleimani’s death occurred in the context of an IAC between Iran and the USA. As a member of Iran’s armed forces, Soleimani was arguably a lawful target, subject to individualized attack at all times (which, in itself, of course, raises various questions).
This means that the same strike is illegal under IHRL but legal under IHL. In short: this case, under these premises, breaks the logic of lex specialis, as originally understood by the ICJ. Simply put, the “test of what is an arbitrary deprivation of life” does not fall to be determined by the applicable lex specialis (IHL), but rather by an independent test, proper to IHRL itself. Under these premises, one would need to amend the ICJ’s dicta in the Nuclear Weapons case so that “whether a particular loss of life (…) is to be considered an arbitrary deprivation of life (…) can only be decided by
reference to the law applicable in armed conflict and not deduced from [interpretation of] the terms of the Covenant itself”- sometimes by application of IHL, sometimes by application of other tests, like that proposed by Adil. In other words, it is not that the applicable legal regime is either IHRL or IHL; it’s that both apply at the same time and both lead to different results. Which one of these two options is taken up by legal operators would not depend on lex specialis at all, but rather, as Todeschini suggests, on systemic integration and other similar interpretation techniques.
How each one of us (or each forum) decides this question will vary. To avoid excessive complexity (and to keep within a blog post length territory!) let me solve this issue by looking into the only international human rights body with jurisdiction over American human rights violations: the Inter-American Human Rights Commission (not the Court). How would the IAHRC address this case?
The first thing I should mention is this would not be the first time that the Inter-American System reaches the conclusion that something that is allowed by IHL violates IHRL, specifically the American Convention on Human Rights. In the landmark Palmeras case, the Inter-American Court concluded that:
“In order to carry out this examination, the Court interprets the norm in question and analyzes it in the light of the provisions of the Convention. The result of this operation will always be an opinion in which the Court will say whether or not that norm or that fact is compatible with the American Convention. The latter has only given the Court competence to determine whether the acts or the norms of the States are compatible with the Convention itself, and not with the 1949 Geneva Conventions” (¶33).
In other words, whether the state complied with IHL was immaterial if it, at the same time, did not comply with the American Convention. The Court reached this conclusion as part of a jurisprudential trend in which, instead of displacing IHRL with IHL through lex specialis, it displaced IHL with IHRL, with a technique I have elsewhere called the “lex protector” – applying the law that would be most protective of the victim.
The Court is no longer applying the lex protector technique, having instead now taken the approach of lex specialis as systemic integration (in my opinion, a change for the better). However, if the Commission were hypothetically faced with a case like that of Soleimani, in my opinion, it would definitely apply the IHRL approach, not IHL, deciding that Soleimani was arbitrarily killed by the US due to its breach of jus ad bellum.
This is because one of the main principles of the Inter-American System is the “pro homine” principle, which states that:
“[I]f in the same situation both the American Convention and another international treaty are applicable, the rule most favorable to the individual must prevail. Considering that the Convention itself establishes that its provisions should not have a restrictive effect on the enjoyment of the rights guaranteed in other international instruments, it makes even less sense to invoke restrictions contained in those other international instruments, but which are not found in the Convention, to limit the exercise of the rights and freedoms that the latter recognizes” (p. 11).
As such, faced with two possible routes to decide a case, the Commission would choose the one that favors individual rights over state rights. Seen through Latin American eyes, Soleimani would have been murdered, not targeted, because of systemic integration, not lex specialis. Of course, this all would not work if we do not accept the premise that all serious violations of jus ad bellum, or at least all acts of aggression, lead to a violation of the right to life. But as noted in my previous post, allowing for instant conflicts through targeted killings presents important complications of its own, and there seems to be little escape routes out of these conundrums. Abandoning lex specialis seems like a small price to pay for some much-needed normative clarity. But of course, there is still a lot more research to be done!