Lecture 12
The relationship between
international humanitarian law and
human rights law
Two areas of international law:
• International
humanitarian law:
• International
human rights law:
• Agreements between
states on how to
conduct war, and on
protection of
individuals (civilians
and combattants)
• Agreements between
states regulating the
relationship between
each state and the
indivuduals over
which it has
jurisdiction
The Content of IHL is PROTECTION of
1) Combatants:
-
Soldiers/officers
Others (participants in hostilities)
2) Non-combatants:
-
Soldiers hors de combat (Sick, wounded, surrendered,
POWs)
-
Civilians
The Content of HRL is PROTECTION
of all persons within the jurisdiction
of a State (regardless of citizenship)
against abuse of power of State
authorities, or failure by State
authorities to ensure human rights
International Human Rights Law
Point of departure:
Restrictions on arbitrary abuse of power by the state
General treaties:
•International Covenant on Civil and Political Rights (1966)
•International Covenant on Economic, Social and Cultural
Rights (1966)
•European Convention on Human Rights and Fundamental
Freedoms (1950)
Special Treaties:
•Convention on Torture
•Convention on Racial Discrimination
•Convention on Discrimination of Women
•Etc..
The duty bearers and the right holders
International
humanitarian law
(IHL)
Duty-bearers
Rights-holders
-STATES
- STATES
- INDIVIDUALS
(including members
of armed groups)
-MEMBERS
OF ARMED
GROUPS
-INDIVIDUALS
International
humans rights law
(IHRL)
- STATES
- INDIVIDUALS
(persons)
-STATES
Remedies and monitoring mechanisms
under humanitarian law (IHL) and human rights law (HR)
Duty-bearers
International STATES
humanitarian
law (IHL)
MEMBERS OF
ARMED
GROUPS
Rights-holders
Remedies
STATES
ICJ and other
treaties
INDIVIDUALS
(including
members of
armed groups)
INDIVIDUALS
International
humans
rights law
(HRL)
STATES
INDIVIDUALS
(persons)
STATES
National courts
Nuremberg/Tokyo
ICTY/ICTR
ICC
International HR
courts and other
monitoring bodies
ICJ and HR Courts
etc
Examples of civil and political rights:
•Freedom of speech / the right of expression
•The right of assembly/organisation (freedom of association)
•Freedom of religion/belief
•Prohibition against torture and cruel and degrading punishment
•The right to liberty and physical integrity (restrictions on the use of detention)
•The rights of fair trial (Independent courts, presumption of innocence, etc..)
•Prohibition against retroactive laws or judgements without legal basis
Examples of economic, social and cultural rights:
•The right to education
•The right to health
•Right to form and join trade unions
•Right to reasonable working conditions
•Right to housing
•Freedom from discrimination
•Race/ethnicity/national or social origin etc
•Gender
•Political opinion
•Disabilities, age
When do human rights apply?
• Point of departure: Always
• No qualification of situations (see f.ex.
Articles 1 of the ECHR and Article 2 of the
ICCPR)
• What can states do when the security (or
interests) of the state is threatened?
– Limitations possible for some of the rights
– Derogation in emergencies
Limitations: ECHR art. 8,9,10,11
• Art.8: Right to respect for privacy and
family life
• Art.9: Freedom of thought and religion
• Art.10: Freedom of expression
• Art.11: Freedom of assembly
Limitations 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
No limitations with regard to:
• Right to life (except those which are listed
in article 2 and 15)
• Prohibition of torture
• Prohibition of slavery and forced labour
• Right to liberty and security
• Right to a fair trial
• No punishment without law
Article 15 ECHR :– Derogation in time of emergency
1. In time of war or other public emergency threatening the life
of the nation any High Contracting Party may take measures derogating
from its obligations under this Convention to the extent strictly required by the
exigencies of the situation, provided that such measures are not inconsistent
with its other obligations under international law.
2. No derogation from Article 2, except in respect of deaths resulting from
lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made
under this provision.
3. Any High Contracting Party availing itself of this right of derogation shall
keep the Secretary General of the Council of Europe fully informed of the
measures which it has taken and the reasons therefor. It shall also inform the
Secretary General of the Council of Europe when such
measures have ceased to operate and the provisions of the Convention
are again being fully executed.
Requirements for derogation
• Art.15 (1). In time of war or other public
emergency threatening the life of the
nation any High Contracting Party may
take measures derogating from its
obligations under this Convention to the
extent strictly required by the exigencies of
the situation, provided that such measures
are not inconsistent with its other
obligations under international law.
Non-derogable rights
Art.15 (2): No derogation from Article 2,
except in respect of deaths resulting from
lawful acts of war, or from Articles 3, 4
(paragraph 1) and 7 shall be made under
this provision.
Article 2 (Right to life):
• Everyone’s right to life shall be protected by law.
No one shall be deprived of his life intentionally
save in the execution of a sentence of a court
following his conviction of a crime for which this
penalty is provided by law.
• Article 2 (continued):
• Deprivation of life shall not be regarded as
inflicted in contravention of this article when it
results from the use of force which is no more
than absolutely necessary:
• (a) in defence of any person from unlawful
violence;
• (b) in order to effect a lawful arrest or to prevent
the escape of a person lawfully detained;
• (c) in action lawfully taken for the purpose of
quelling of a riot or insurrection
“lawful acts of war”
• Derogation does not prohibit deaths
resulting from lawful acts of war:
Observance of:
– Combatant status required for killing
– Principle of distinction
– Principle of proportionality
– No war crimes
– No grave breaches
• European Court of Human Rights on Art.2:
• Isayeva v. Russia (2005):
• Violation of article 2 because: “The Court
considers that using this kind of weapon in a
populated area, outside wartime and without
prior evacuation of civilians, is impossible to
reconcile with the degree of caution expected
from a law-enforcement body in a democratic
society. No martial law and no state of
emergency has been declared in Chechnya,
and no derogation has been made under
Article 15..”
Non-derogable rights (cont.)
Art.15 (2) No derogation…or from Articles 3,
4 (paragraph 1) and 7 shall be made
under this provision.
- Art.3: Prohibition against torture and inhuman
and degrading treatment and punishment
- Art.4 (1): Prohibition against slavery
- Art. 7: Prohibition against retroactive or nonexistent legislation as basis for punishment
Article 4 ICCPR
1 . In time of public emergency which threatens the life of the nation
and the existence of which is officially proclaimed, the States Parties to
the present Covenant may take measures derogating from their
obligations under the present Covenant to the extent strictly required
by the exigencies of the situation, provided that such measures
are not inconsistent with their other obligations under international law
and do not involve discrimination solely on the ground of
race, colour, sex, language, religion or social origin.
2. No derogation from articles 6, 7, 8 (paragraphs I and 2),
11, 15, 16 and 18 may be made under this provision.
3. Any State Party to the present Covenant availing itself of the right of
derogation shall immediately inform the other States Parties to the
present Covenant, through the intermediary of the Secretary-General
of the United Nations, of the provisions from which it has derogated
and of the reasons by which it was actuated. A further communication
shall be made, through the same intermediary, on the date on which
it terminates such derogation.
Derogation measures must not
discriminate
• Article 4, ICCPR .…..provided that such
measures …. do not involve discrimination
solely on the ground of race, colour, sex,
language, religion or social origin.
• Discrimination grounds in article 2 and 26 of the ICCPR:
race, colour, sex, language, religion, political or
other opinion, national or social origin, property,
birth or other status
• Implicitly permitted to take derogation
measures which discriminates on the
basis of
• political or other opinion, national origin,
property, birth or other status,
• But: only provided that such measures are
“strictly required by the exigencies of the
situation”
More non-derogable rights under
Art.4 of ICCPR
• 2. No derogation from articles 6, 7, 8 (paragraphs I
and 2), 11, 15, 16 and 18 may be made under this
provision.
•
•
•
•
•
•
Art.6: Right to life
Art.7: Torture and inhuman and degrading treatment
Art.8: Slavery
Art.11: Debt prison
Art.15: Non-existent of retroactive legislation
Art.16: Right to be recognised as a person before the
law
• Art.18: The freedom of religion
Examples of situations which led to
derogation:
•
•
•
•
•
The military coup in Greece in 1967
The situation in Northern Ireland
The situation in parts of Turkey
The situation in Israel/occupied territories
The attack on the US 11 Sept. 2001
International “case law” on
derogation (examples)
• European Court of Human Rights:
– Lawless v. Ireland (1960)
– Ireland v. United Kingdom (1978)
– Brannigan and McBride v.UK (1993)
– Aksoy v.Turkey (1996)
• The Human Rights Committee:
– Landinelli v.Uruguay (1978)
– Salgar de Montejo v. Colombia (1979)
Where do human rights apply?
• Each state must ensure its human rights
obligations
• Not all states have agreed to take on all
human rights obligations
• Human rights for individuals correspond
with human rights obligations of the
relevant state
• But: core human rights are customary law
Geographical application
• IHL: applicable wherever a State Party (or
other parties) to the conflict may be
operating – when the situation qualifies as
armed conflict
• Human Rights: applicable to persons
under the State’s territory and/or
jurisdiction - in all situations (as a point of
departure)
Scope of application of human
rights treaties:
• Art.1, ECHR: The High Contracting parties shall
secure to everyone within their jurisdiction the
rights and freedoms defined in Section 1 of this
Convention.
• Art. 2, ICCPR: Each State Party to the present
Covenant undertakes to respect and to ensure
to all individuals within its territory and subject to
its jurisdiction the rights recognized in the
present Covenant…
Human Rights Committee:
General Comment No.31 (80) 2004
• 10. States Parties are required by article 2,
paragraph 1, to respect and to ensure the
Covenant rights to all persons who may be
within their territory and to all persons subject to
their jurisdiction. This means that a State party
must respect and ensure the rights laid down in
the Covenant to anyone within the power or
effective control of that State Party, even if not
situated within the territory of the State Party.
The European Court of Human
Rights (on “jurisdiction”):
• Art.1, ECHR: The High Contracting parties
shall secure to everyone within their
jurisdiction the rights and freedoms
defined in Section 1 of this Convention.
• No dispute: jurisdiction can imply
responsibility both inside and outside the
territory of a State party
Jurisdiction:
• The power of the State:
- internally (at the national level)
- externally (in relations with other states)
- Jurisdiction reflects state sovereignty and
equality of states - the basic principles of
international law
Jurisdiction:
Common understanding of jurisdiction:
• Legislative power (prescriptive
jurisdiction)
• Judicial power (court jurisdiction)
• Executive power (enforcement
jurisdiction)
ECHR: Autonomous interpretation:
jurisdiction is closely linked to a state’s
ability to secure (or violate) human rights
(including, to a certain extent, abroad)
Extraterritorial human rights
responsibility (jurisdiction) under
the ECHR
•
•
•
•
•
•
Loizidou v. Turkey (1996)
Bankovic (2001)
Ôchalan (2005)
Ilascu v. Moldova and Russia (2004)
Issa et al v. Turkey (2004)
Saramati (2007)
Extraterritorial human rights
responsibility in Peace Operations:
(Saramati case)
• Complaint from person detained in Kosovo
against i.a. Norway and France - alleged
violation of article 5
• Could derogate in ones’ own territory, but
not abroad?
Human rights and peace
operations
• UK: Al-Skeini (House of Lords – back to High
Court)
• UK: Al-Jeddah (House of Lords - 29 October):
– Not a protected person under GC IV (art.4)
– SCR 1546 (2004) v. art. 55 and 56 of the UN Charter
– Art. 103: SC can override Human Rights except when
they constitute jus cogens
– Art.103: SC can override IHL (art. 78, GC IV)
Is there a gap between IHL and HRL?
• Is there a situation where only nonderogable rights are applicable - and
Common Article 3 is not?
De facto situations
Applicable IHL
Applicable HR law
1. International armed
conflict
(& colonial wars etc.)
The four Geneva
Non-derogable
conventions of 1949 (applicable)
& the first additional human rights
protocol of 1977
Examples
Tadic-case (ICTY)
Non-derogable
(applicable)
human rights
Spain 1936-37
Colombia 2004?
3. Non-international
Common Article 3 to Non-derogable
armed conflict
the four Geneva
(applicable)
between the state and conventions
human rights
groups or between
groups
Lebanon 1980s?
Somalia?
Iraq 2005?
4.Disturbances
Riots/Unrest
Disasters
Others causes for
state of emergency
Non-derogable
(applicable)
human rights
Iraq 2006?
UK/US post 9/11
France 2005?
5. Peace
All International
(applicable)
human rights
2. Non-international
The second
armed conflict
additional protocol
between the state and of 1977
organized group with
territorial control
The relationship between human rights and
humanitarian law
in situations where both regimes apply:
• Point of departure: HR law is always applicable
• But: the principle of lex specialis applies
– Advisory Opinion – Nuclear weapons (ICJ)
– Advisory opinion - Wall in occupied Palestine
territories (ICJ)
– General Comment of Article 2 (Jurisdiction) (HR
Committee)
Minimum protection:
• All human rights which are
– Non-derogable and not derogated from
And:
• Article 75 AP I (if IAC)
• Common Art.3 (if NIAC)