IHL

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Human rights in times of
armed conflict
Table of content:
I.
Important differences and similarities
IHL/IHRL
II. Why is it important whether IHRL are
applicable in AC?
III. Are IHRL applicable in AC?
IV. How can IHL and IHRL interrelate?
V. Extraterritorial application of IHRL
I. Differences and
similarities
Common purpose:
• To protect and ensure human dignity
Differences IHL/IHRL:
- Armed conflict/Peace
- Military necessity/derogate in emergencies
- Formulated as state obligations/Individual rights
- Binds state and non-state actors/only SA
- Many precise rules/Few broad rules
II. Why is it important whether
IHRL are applicable in AC
1. Protect different persons
– IHL protect enemy combatants and
civiliaans
– HR: Protect everyone, incl. own combatants
- See e.g. UK, R (Smith) v The Secretary of State for
Defence:
District court, pr. 20:
“The soldier does not lose all protection simply because
he is in hostile territory carrying out dangerous
operations. Thus, for example, to send a soldier out on
patrol or, indeed, into battle with defective equipment
could constitute a breach of Article 2 [EMRK].”
House of Lords, 19 June 2013: HR is applicable also
outside British camps – incl under patrol, etc.
ECHR – Pritchard v. UK -pending October
2012
In Mid-2003 Dewi Pritchard was called up to serve with the Royal Military Police
in Iraq [as electronics engineer].
On 23 August 2003 he took part in an operation to transport AK47 rifles. Dewi
Pritchard was driving a non-armoured Nissan pathfinder ahead of a Land Rover
which was transporting the rifles when a red Chevrolet truck overtook the Land
Rover and drew alongside the Nissan. A man in the back stood up and fired a long
burst of automatic fire into the driver’s side window, killing three soldiers,
including Dewi Pritchard.
Full art. 2 investigation ?
2. Different standards
• Right to life: – absolutely necessary; proportionality,
arrest if possible
• Detention
– Reasons for detention: must not be arbitrary
– Supervision of detention: Habeas Corpus,
– Right to assistance from a lawyer
• Torture, inhumane treatment
– Definition
– Investigation of torture
– Transfer of prisoners
3. Investigation of possible war crimes
HR: Independent, effective, impartial and fast
investigation of arbitrary killings and torture,
include close family of deceased
- See e.g. UN Principles on the Effective Prevention and
Investigation of Extrajudicial, Arbitrary and Summary
Executions from 1989
- Goldstone report, Human Rights in Palestine and other
Occupied Arab Territories: Report of United Nations Fact
Finding Mission on the Gaza Conflict, 15/9 2009, pr 16011632.
IHL: Official investigation/ dead internees /Art 131/GC IV;
121/GC III
4. Compensation and redress to victims
War crimes
HR: Individual right to compensation and
redress
IHL: State can get compensation
5. International monitoring/complaints bodies
HR:
• Individual complaints
• Periodic rapports to HR bodies and HRC
IHL: ICRC – confidential dialogue
Case -- Right to life
• Danish troops driving on a road in Afghanistan - a bomb
(IED) explodes
• Danish troops hide and wait
• Three civilian dressed afghans shown up – collect
remnants of the bomb – talking in mobile phone with
someone discussing the attack
• Danish soldiers count to three – jump up – and shoot the
three men
Did the Danish soldiers
violate IHL or HR?
III. Are HR applicable in times of armed
conflict?
• IHL not applicable in peace time
• HR applicable in AC?: Traditionally: NO – two distinct set of
rules; Development – Yes HR also applicable in AC:
a) New HR convention applicable in peace time and AC
– UN Conv. Rights of Child (1989) - art 38 HR obligation to respect
IHL
– UN OPCAT (2002) – military detention places – see art. 4
– UN Conv. Enforced disappearance (2006)
b) Other HR conventions
• ICJ – Yes HR still applicable in AC
– See e.g. the Israeli Wall Case
• Human rights bodies: IACHR, ECHR, UN Human Rights
committee, etc.
• Expert-Commissions: - UN, Goldstein report, Israel/Hamas,
2009; - EU-report, Georgia/Russia, 2009.
• States – HR continues to be applicable in AC:
- UN HR Commission, Res. 15 April 2005
- IHL and HRL complementary and mutually reinforcing
- UN SC, Res. 1894, 11/11-2009, Civilians in AC:
”Demands that parties to armed conflict comply strictly with the
obligations applicable to them under international humanitarian law,
human rights and refugee law..”
IV. How can IHL and HR
interrelate?
International Court of Justice/ICJ
Relationship between IHL and HR – 3
Situations (“the Wall case”):
• Certain rights exclusively matter of IHL
• Others exclusively of HR,- and
• Others matter of both these branches of
international law
IHL is lex specialis when more detailed and
Precise – e.g. right to life, detention in IAC
HR courts
European Court HR – simply applies ECHR:
– see e.g. Al-Skeini and Al-Jedda 7/7 2011 - no reference to IHL
•Inter-American Court HR –
IHL Lex specialis in armed conflict:
– See Third report on the human rights situation in Colombia,
OEA/Ser.L/V/II.102 Doc. 9 rev. 1, 26. februar 1999, Chapter IV:
”[D]uring such situations of internal hostilities, the Commission has received from
Colombia and other OAS member States numerous complaints alleging serious violations of
the fundamental rights guaranteed in the American Convention and Declaration arising out
of the conduct of military operations by State security forces and its other agents. In order to
properly judge the specific claims raised in such petitions, the Commission has found it
necessary at times either to directly apply rules of international humanitarian law, i.e. the
law of armed conflict, or to inform its interpretations of relevant provisions of the American
Convention by reference to these rules.”
Authors/Experts:
Marco Sassoli:
”IHL lex specialis when situation regulated
by both IHL and HR and IHL rules are
more detailed and precise”
David Kretzmer:
”when we are talking about the battlefield
‘proper’ in the classic sense, there is no
effective control and international
humanitarian law rules prevail. As soon as we
start removing ourselves from the battlefield,
we are going to start having international
humanitarian law supplemented by
international human rights law.”
UN, HRC, Expert Consultation on Human
Rights of Civilians in Armed Conflict, 2
June 2009, p. 10:
• ”The more effective control over persons or
territory, the more applicable human rights
will become.”
Other experts: i.a. Michael J. Matheson and
Hans-Joachim Heintze:
”[T]he rules developed for peacetime
circumstances cannot be applied in an
unqualified manner to the conduct of armed
conflict. Rather, they must be integrated in
a sensible way into the structure of the law
of armed conflict…”
• .
Governed by
Human Rights Law (HRL)
International
Armed
Conflict
Occupation
Non-int.
Armed
Conflict
Grey
Zone
Internal
Disturbance
And
Tensions
Civilian
Law
Enforcement
Governed by
International Humanitarian Law (IHL)
UN, HRC, Expert consultation, A/HRC/11/31, 2 June 2009: “Since the
reciprocity approach would be hardly acceptable in the context of noninternational armed conflicts, the better paradigm to apply was that of human
rights law.”
Conclussions:
• HR applicable under AC (occupation and
NIAC) on a states own territory
– Preamble AP II: "Recalling furthermore that international instruments
relating to human rights offer a basic protection for the human person.”
– HR bodies/ECHR : Applied HR in internal armed conflicts e.g. in Russia
(Chechnya) and in Turkey
– Relationship: Concrete assessment based on type of conflict, context
and rule
• What about conflict taken place outside a
state’s own territory?
V. Extraterritorial application of HR
Point of departure: “Jurisdiction” - HR
applicable on a State’s own territory
Two exceptions:
A. Control over area on another State’s
Territory:
E.g. Norther Cypern see cases from ECHR. Depends on (Issa-case,
2005) :
–
–
Number of soldiers
The size of the controlled area
–
The degree of control (control over roads, check points, etc.)
–
How long time the state exercise control over the area
08/04/2015
B. Control and authority over persons
• Embassies, consulates, airplanes, ships in another
state or international waters, airspace
• Abduction/Kidnapping from another state
• Arrest and detention in another state
(ECHR, Al-saadoon and Mufdhi v. UK, 30 June 2009)
“88. The Court considers that, given the total and exclusive de
facto, and subsequently also de jure, control exercised by the
United Kingdom authorities over the premises in question, the
individuals detained there, including the applicants, were
within the United Kingdom’s jurisdiction”
NB: AL-Skeini, ECHR, 7/7 2011
Maybe new additional exception C – ‘exercise of
public power/authority”? -
5 Iraqis killed during patrol and
at check-points in Iraq in 2003
when UK occupying power– (i.e. not control and
authority over persons – see previous slide)
Para 149:
“United Kingdom (together with the United States) assumed in Iraq the
exercise of some of the public powers normally to be exercised by a
sovereign government. In particular, the United Kingdom assumed
authority and responsibility for the maintenance of security in South East
Iraq.” – therefore under UK jurisdiction
Extraterritorial killing not preceeded by
arrest?
E.g. is shooting, dropping bombs from an
airplane enough to establish jurisdiction
Under ECHR: Probably not (Bankovic-case, 2001; but see
Pad-case, 2007)
Under IACHR: Yes – see Brother to Rescue, 1999 – Cuba
shooting down two airplanes in int. airspace – under Cuba’s
jurisdiction – American Convention on HR
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