Human Rights Law and
Related Regimes
HUMR5140
Thursday 9th October 2014
Joanna Nicholson
Fragmentation of International Law
• Concern that international law (‘IL’) has developed in a
fragmented way, leading to a lack of coherence between
the different branches of international law (‘IL’) and the
norms and institutions of the different branches of IL .
• Human rights law (‘HRL’) overlaps with several other
areas of IL, e.g. international humanitarian law,
international criminal law, environmental law, refugee
law.
• What is the relationship between IHRL and
international humanitarian law (‘IHL’) and international
criminal law (‘ICL’)?
E.g. Piracy
Acts
punishable
under ICL
E.g. crimes against
humanity, genocide
committed in peace
time
E.g. denial of
freedom to practice
religion in peace
time detention.
Breaches of
International
Human
Rights Law
War crimes against people and
crimes against humanity and
genocide committed during armed
conflict.
Breaches of
IHL
E.g. denial of freedom
to practice religion
during detention in
breach of Additional
Protocol II
E.g. serious breaches
of Hague Cultural
Property Convention,
1954
E.g. minor
breaches
of Geneva
Convention III
or Hague
Cultural
Property
Convention,
1954
Part I
International Humanitarian Law
What is IHL?
• Also known as the Law of Armed Conflict
(LOAC).
• International law separates the question of
when a state is lawfully entitled to use military
force (jus ad bellum) from how hostilities are
to be conducted once they are underway (jus in
bello).
Jus ad bellum
• Concerns when states are lawfully entitled to use military force.
• International law prohibits the use of force:
- Article 2(4) Charter of the United Nations,1945
‘All members shall refrain in their international relations from the
threat or use of force against the territorial integrity or political
independence of any state, or in any other manner inconsistent with
the Purposes of the United Nations.’
• Exceptions:
- Chapter VII, UN Charter
Military sanctions authorised by the UN Security Council.
- Article 51 UN Charter
May resort to force only in the exercise of their inherent right of
individual or collective self-defence.
• Crime of aggression- Article 5(1)(d), ICC Statute 1998.
Jus in bello
• Governs how the conflict is conducted once it is
underway.
• This is IHL.
• Aims to contain the violence.
• Applies equally to all parties to a conflict.
• It is concerned with:
- The protection of civilians and civilian property.
- The protection of those who fall into the hands of
the enemy.
- Means and methods of warfare.
Roots of IHL dig deep into
history…..
• Many examples of rules of warfare from ancient
societies.
• Middle ages- rules of warfare as we know them
today begin to develop.
• Codification from mid-19th century onwards.
- 1859, Battle of Solferino- Henry Dunant
- 1864, Geneva Convention
- 1863, Lieber Code
• ‘Geneva Law’ and ‘Hague Law’ .
Sources of IL
Article 38, International Court of
Justice Statute, 1945:
•
•
•
•
International conventions.
Customary law.
General principles of law.
Judicial decisions and teachings of highly
qualified publicists.
Sources of IHL
Geneva Law (pertaining chiefly to
protection)
• Four Geneva Conventions, 1949
- GC I- Wounded and Sick in Armed Forces in the Field
- GC II- Wounded, Sick and Shipwrecked
- GC III- Protection of Prisoners of War
- GC IV- Protection of Civilians
• Additional Protocol I to the Geneva Conventions, 1977
- Applies primarily in international armed conflicts.
• Additional Protocol II to the Geneva Conventions, 1977
- Applies in certain Non-international armed conflicts
• Additional Protocols are concerned with both protection and means
of warfare.
Hague Law (pertaining chiefly to
means of warfare)
•
•
•
•
•
•
St. Petersburg Declaration, 1868
Hague Regulations, 1899, and 1907
Geneva Gas Protocol, 1925
Hague Convention on Cultural Property, 1954
Biological Weapons, 1972
Conventional Weapons Convention and
Additional Protocols, 1980
• Chemical Weapons Convention, 1993
• Mine Ban Treaty, 1997
• Cluster Munitions, 2008
Customary International Law
• International Committee of the Red Cross,
customary international law study.
- First published in 2005
- 161 Rules
- discusses state practice
- Available at:
- https://www.icrc.org/customaryihl/eng/docs/v1
When does IHL Apply?
•
•
•
•
•
-
There must be an armed conflict
‘an armed conflict exists whenever there is a resort to armed force between states
or protracted armed violence between governmental authorities and organised
armed violence between such groups within a state.’
Tadić, Decision on the Defence Motion on Jurisdiction, IT-94-1, 2, 1995, para 70
does not apply in internal disturbances, riots, sporadic violence
IHL distinguishes between two different kinds of armed conflict: international
armed conflicts (IAC) and non-international armed conflicts (NIAC).
IACs- see Common article 2 GC and Article 1(3) and (4) Additional Protocol I.
NIACs – see Common article 3, GC and Article 1, Additional Protocol II.
The classification of the conflict as an IAC or a NIAC affects which laws that
applies.
However, it can be a complicated question to determine whether a conflict is an
IAC or a NIAC.
Majority of treaty law relates to IACs, but many of the same rules apply in NIACs
as a matter of customary law.
Tadić Jurisdictional Decision, para 94.
Who does IHL apply to?
• States
• Non state armed groups
• Individuals
The Fundamental principles of IHL
•
•
•
•
Distinction
Military Necessity
Proportionality
Prohibition against superfluous injury and
unnecessary suffering
Distinction
• Distinction (Art. 48 and 52(2), AP I)
- All belligerents must distinguish between
legitimate military objectives and civilian
objectives and between combatants and
civilians.
- Military operations can be directed against
military objectives and combatants only.
Military Necessity
• Parties to a conflict are permitted to apply any
amount and kind of force to compel their enemy
to submit- parties can do what is necessary to win
the war.
• BUT the principle of military necessity must be
balanced against the principles of proportionality
and unnecessary suffering.
• Also it only covers measures which are lawful
under IHL.
• E.g. see Article 23(g), Hague Regulations, 1907.
Military Necessity in the Lieber
Code:
• Military necessity admits of all direct destruction of life or
limb of armed enemies, and of other persons whose
destruction is incidentally ' unavoidable ' ….it allows of the
capturing of every armed enemy, and every enemy of
importance to the hostile government…’. (Article 15)
• Military necessity does not admit of cruelty -- that is, the
infliction of suffering for the sake of suffering or for
revenge, nor of maiming or wounding except in fight, nor of
torture to extort confessions. It does not admit of the use of
poison in any way, nor of the wanton devastation of a
district. It admits of deception, but disclaims acts of perfidy;
and, in general, military necessity does not include any act
of hostility which makes the return to peace unnecessarily
difficult. (article 16)
Proportionality
• Attacks are prohibited if they will cause incidental loss
of civilian life, injury to civilians, damage to civilian
objects which would be excessive in relation to the
concrete and direct military advantage anticipated.
(Article 51(5)(b) and 57(2)(b), Additional Protocol I).
• Military commanders must consider the results of an
attack as compared to the military advantage they will
gain from carrying it out.
• They must take precautions to ensure that the objective
to be attacked is a military one and the damaged caused
to civilians and civilian property is not
disproportionate.
Superfluous Injury and
unnecessary suffering
• St Petersburg Declaration, 1868.
‘Considering:
That the progress of civilization should have the effect of alleviating as much as
possible the calamities of war;
That the only legitimate object which States should endeavour to accomplish during
war is to weaken the military forces of the enemy;
That for this purpose it is sufficient to disable the greatest possible number of men;
That this object would be exceeded by the employment of arms which uselessly
aggravate the sufferings of disabled men, or render their death inevitable;
That the employment of such arms would, therefore, be contrary to the laws of
humanity’.
• Article 35(2), Additional Protocol I
‘It is prohibited to employ weapons, projectiles and material and methods of warfare of
a nature to cause superfluous injury or unnecessary suffering.’
ICRC – Rules of war (in a Nutshell)
22nd August 2014
https://www.icrc.org/en/document/rules-warnutshell#.VBqzS0t97wI
Scenario
A football match is taking place in a car park
surrounded by buildings. About a third of the
players and spectators are off-duty, unarmed
soldiers. The rest- about 200 people- are civilians.
Two shells are launched by the opposing side. Both
hit the car park, killing and injuring many of those
present.
What questions would you need to ask in order to
ascertain whether or not this was a lawful attack?
Relationship between IHL and
IHRL
• Traditionally viewed as being separateseparate historical and philosophical origins;
different objectives; different ethos.
• Now widely agreed that IHRL can apply
during armed conflict.
IHL and IHRL
IHL
IHRL
Applies
During armed conflict
During peacetime and armed
conflict
Duty bearers
States
Armed groups
Individuals
States
Rights holders
States
Individuals
Individuals
States
Remedies and
ICJ
Monitoring mechanisms Specific treaty regimes
International criminal
tribunals
National courts
ICJ
International human rights bodies
National courts
Application of IHRL during armed
conflict
• Some rights can be limited (e.g. Articles 8, 9, 10 and 11 ECHR).
Must be:
- Prescribed by law
- Necessary in a democratic society
- In the interests of national security, territorial integrity or public
safety.
- For the protection of public order, health or morals
- For the protection of the rights and freedoms of others.
• Some rights can be derogated from during time of war or other
public emergency (Article 15 ECHR)
- Some rights cannot be derogated from: Article 2 (except for
deaths resulting from lawful acts of war); Articles 3, 4
(paragraph 1) and 7.
Possible scenarios during armed
conflict:
• Both IHL and IHRL apply in a particular
situation and result in the same outcome.
• Both IHL and IHRL apply in a particular
situation and result in a different outcome.
• Only IHL governs a situation, while IHRL is
silent.
• Only IHRL governs a situation while IHL is
silent.
What if there is a conflict between
an IHL and IHRL norm?
• Although application of IHL and IHRL will often lead to the
same result, there are instances where there are important
differences, e.g. viewing the deaths or injury of civilians
being ‘collateral damage’, holding combatants as prisoners
of war.
• How are differences to be resolved:
• Lex specialis principle:
- The rule most specific to the situation is to be preferred.
- Legality of the Threat or Use of Nuclear Weapons, Advisory
Opinion, ICJ Reports, 1996 para 25.
- Legal Consequences of the Construction of a wall in the
Occupied Palestinian Territory, Advisory Opinion, ICJ
Reports, 2004, para. 106.
Palestinian Wall, Advisory Opinion,
para. 106
‘the Court considers that the protection offered by human
rights conventions does not cease in case of armed conflict,
save through the effect of provisions for derogation of the kind
to be found in Article 4 of the International Covenant on Civil
and Political Rights. 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. ‘
However…..
• Not everyone agrees with the lex specialis
theory.
• Other approaches include:
- Complementarity- the two regimes
complement and mutually reinforce each
other.
- Most favourable protection of victims- the
regime which gives most protection to
individuals should prevail.
Some other debates:
• Extra territorial application of ECHR
• Capture or kill debate
• IHRL obligations of non state actors
Extra-territorial application of
ECHR
• Article 1 ECHR- ‘The High Contracting Parties shall secure
to everyone within their jurisdiction the rights and freedoms
defined in Section 1 of this Convention.’
• What does ‘within their jurisdiction’ mean?
• ECtHR- jurisdiction not necessarily geographically limited
- Loizidou v Turkey (1996)- state possesses jurisdiction when
it has effective overall control of an area.
- Bankovic (2001)- individuals killed outside an area under
the effective overall control of a state by missiles or bombs
fired from an aircraft were not within the state’s
jurisdiction.
- Al Skeini (2012)
Capture or Kill?
• In a NIAC, does IHRL place authorities under
a duty to arrest a member of an armed group if
possible, rather than kill them?
IHRL and non State Actors
• To what extent do human rights obligations
bind non state actors?
- They are not party to HR treaties.
- Growing trend towards requiring non state
actors with de facto authority over persons
and/or territory to abide by HR norms.
Suggested additional reading:
• Kolb and Gaggioli, Research Handbook on Human
Rights and Humanitarian Law, Edward Elgar
Publishing, (2014).
• Theodor Meron, The Humanization of International
Humanitarian Law, Vol. 94(2) American Journal of
International Law, 239-278 (2000).
• Sassoli and Olsen, The relationship between
international humanitarian law and human rights law
where it matters: admissible killing and internment of
fighters in non-international armed conflicts, Vol. 90
Number 871 International Review of the Red Cross
(2008).
Part 2
International Criminal Law
What is ICL?
• A body of international rules designed both to proscribe
certain categories of conduct, and to make those who
engage in such conduct criminally liable.
• Comprises of:
- substantive law- the rules which stipulate what
behaviour constitutes an international crime and
the elements that must be proved in order for a
person to be convicted of an international crime.
procedural law- the rules which determine how the
various international criminal courts and tribunals
function.
Historical Background
• Largely a product of the Twentieth century.
• Post World War I- Leipzig trials of alleged
German war criminals.
- A German court trying its own nationals
• Post World War II- International Military
Tribunal at Nuremberg and International
Military Tribunal of the Far East.
Recent times
• International Criminal Tribunal for the former
Yugoslavia, 1993 (‘ICTY’)
• International Tribunal for Rwanda, 1994 (‘ICTR’)
• International Criminal Court, 2002 (ICC Statute,
1998) (‘ICC’)
• Special Court for Sierra Leone, 2002
• Special Tribunal for Lebanon, 2009
• Extraordinary Courts for Cambodia (Agreement
2003)
• The courts have different origins
- The ICC was created by a treaty (ICC Statute)
- ICTY and ICTR were created by UN SC
Resolutions.
- Hybrid courts- SCSL and ECCC- contain both
domestic and international elements.
• The jurisdiction of these courts depends upon the terms
of their statutes which stipulate:
- The crimes over which they have jurisdiction.
- The geographical area which they have jurisdiction
over, e.g. Rwanda, former Yugoslavia.
- The time period over which they have jurisdiction.
The core international crimes
•
•
•
•
War Crimes
Crimes against Humanity
Genocide
Crimes of Aggression
War Crimes
• War crimes are serious violations of IHL.
In order to constitute a war crime:
1. The rule must constitute an infringement of IHL.
2. The rule must be part of customary international law or treaty law.
3.The violation must be serious: it must protect important values and
involve grave consequences for the victim.
4. The violation must entail individual criminal responsibility for the
accused under customary or treaty law.
Tadić, Decision on the Defence Motion on Jurisdiction, IT-94-1, 2
October 1995, para 94.
Examples of war crimes:
1.
2.
3.
4.
Crimes against persons e.g. wilful killing/murder; torture; rape;
inhuman or cruel treatment; slavery; hostage taking;
enlistment/conscription or use of child soldiers.
Crimes against property, e.g. pillage.
Prohibited methods of warfare, e.g. intentionally attacking
civilians or civilian objects; attacking or bombarding undefended
towns and villages, improper use of insignia.
Prohibited means of warfare, e.g. use of poison; use of
asphyxiating gases.
• See for example: Article 8, ICC Statute.
N.B: Article 8 is not an exhaustive list, nor does it reflect customary
international law.
Crimes against Humanity
• Developed in the wake of World War II.
• Originally needed to be connected to an armed
conflict, but this is no longer a requirement.
• They are now viewed as a way of prosecuting
serious violations of human rights.
• In order to constitute a crime against humanity,
there must be:
- a widespread or systematic attack- not an
isolated incident.
- committed against a civilian population.
Specific acts of Crimes against
Humanity
• For example: murder, extermination,
enslavement, deportation/forcible transfer,
torture, rape/sexual slavery/forced pregnancy,
persecution against any identifiable group on
political, racial, national, ethnic, cultural,
religious, gender grounds.
• See: Article 7, ICC Statute.
Genocide
• Has a special intent requirement: to destroy, in whole or in part, a
national, ethnical, racial or religious group.
•
-
Conduct amounting to genocide:
Killing members of the group
Causing serious bodily or mental harm to members of the group
Deliberately inflicting on the group conditions of life calculated to
bring about its physical destruction in whole or in part.
- Imposing measures intended to prevent births within the group.
- Forcibly transferring children of the group to another group.
• Article 6, ICC Statute.
Crime of Aggression
• Listed as one of the core crimes in Article 5 of the ICC
Statute.
• There was initially no definition given of the crime, but in
2010, an ICC Review conference agreed upon a definition:
‘the planning, preparation initiation or execution by a
person in a position effectively to exercise control over or
to direct the political or military action of a State, of an act
of aggression which, by its character, gravity and scale
constitutes a manifest violation of the Charter of the United
Nations.’
• The ICC has no jurisdiction over the crime at present. A
decision will be made by State parties regarding activating
the provision in 2017.
ICL and IHRL
• Crimes against humanity and genocide- the
criminalisation of serious violations of human
rights.
• Have been instances when ICTY has had
recourse to HRL when defining crimes:
- e.g. the crime of torture
Additional Reading
• Antonio Cassese and Gaeta, Cassese’s International
Criminal Law, Oxford Uni Press, 2013.
• William Schabas, Criminal Responsibility for
Violations of Human Rights in Symonides (ed.), Human
Rights, International Protection; monitoring and
Enforcement, Aldgate, (2003).
• Robert Cryer, The Interplay of Human Rights and
Humanitarian Law: The Approach of the ICTY, Journal
of Law and Security (2010) Vo. 14, No. 3, 511-527.
• International Law Blogs: Opinio Juris; International
Law Observer; EJIL: Talk.