The applicability of international human rights law during armed conflicts – both international and non-international - has been addressed by multiple international bodies including the International Court of Justice.
The International Court of Justice first affirmed the applicability of international human rights law during armed conflicts in its 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons:
“The Court observes that the protection of the International Covenant of Civil and Political Rights does not cease in times of war, except by operation of Article 4 of the Covenant whereby certain provisions may be derogated from in a time of national emergency.” (§25)
In the 2004 Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (the 2004 Wall Advisory Opinion), the Court confirmed the applicability of international human rights law to situations of military occupation (1). A year later, the Court delivered a binding judgment in the case Democratic Republic of the Congo v. Uganda where it applied international human rights law to an occupation citing the findings from its 2004 Wall Advisory Opinion.
“The Court first recalls that it had occasion to address the issues of the relationship between international humanitarian law and international human rights law and of the applicability of international human rights law instruments outside national territory in its Advisory Opinion of 9 July 2004 on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory…It thus concluded that both branches of international law, namely international human rights law and international humanitarian law, would have to be taken into consideration. The Court further concluded that international human rights instruments are applicable ‘in respect of acts done by a State in the exercise of its jurisdiction outside its own territory’, particularly in occupied territories.” (2)
Other international courts have applied the human rights treaties over which they have jurisdiction to situations of armed conflict. The European Court of Human Rights (ECtR) has notably applied the European Convention on Human Rights to the conflict in the Russian Federation (Isayeva, Yusupova and Bazayeva v. Russia) and to Turkish occupation of Northern Cyprus (Cyprus v. Turkey). The Inter-American Court on Human Rights has also applied international human rights law in a conflict situation:
“The Court considers that it has been proved that, at the time of the facts of this case, an internal conflict was taking place in Guatemala (supra 121 b). As has previously been stated (supra 143 and 174), instead of exonerating the State from its obligations to respect and guarantee human rights, this fact obliged it to act in accordance with such obligations.” (3)
The UN Human Rights Committee has recognised the applicability of the 1966 Covenant on Civil and Political Rights to both international and non-international armed conflicts (including situations of occupation). The Committee has dealt with this issue at the level of a General Comment (4) , and in its observations on States’ Periodic Reports (5).
In addition to these applications of international human rights treaty law by international bodies, intergovernmental resolutions and national case law support this approach. For example, UK courts took into consideration the European Convention of Human Rights during the British occupation in Iraq (Al-Skeini and Al-Jedda cases), and the Israeli High Court of Justice reviewed the legality of a military order dealing with detention of Palestinians in the Occupied Territories in light of the 1966 Covenant on Civil and Political Rights (the Marab case).
Armed conflicts often involve operations outside the territorial boundaries of a state. A preliminary question concerning the territorial scope of application of human rights law usually has to be addressed.
Today the scope of application of human rights obligations is considered to be a question of effective control and not necessarily related to the state’s territory. This position was affirmed by the International Court of Justice in the Advisory Opinion in the Wall Advisory Opinion (2004) and in the case Democratic Republic of the Congo v. Uganda (2005).
The European Court of Human Rights also refers to the effective control of a territory for the application the European Convention:
“Bearing in mind the object and purpose of the Convention, the responsibility of a Contracting Party may also arise when as a consequence of military action, whether lawful or unlawful, it exercises effective control of an area outside its national territory.” (6)
The Inter American Commission of Human Rights has taken the following position:
“In principle, the inquiry turns not on the presumed victim's nationality or presence within a particular geographic area, but on whether, under the specific circumstances, the State observed the rights of a person subject to its authority and control.” (7)
The UN Human Rights Committee stated that under the 1966 Covenant on Civil and Political Rights the protection is for “anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party” (8). National courts have applied the effective control standard as well (Al-Skeini and Al-Jedda cases in the UK).
However, the exact meaning of the term “effective control” is yet to be determined. For now, international case law and the views of UN treaty bodies, have clarified a number of situations:
First, a range of situations have been recognised as amounting to effective control, from ‘prolonged’ occupations, such as the 30-year Turkish occupation in Northern Cyprus (the Loizidou case, ECtHR) or the Israeli occupation of the Palestinian territories (the 2004 Wall Advisory Opinion, ICJ), down to situations which have lasted only a short time, as in the case of Ilascu v. Moldova. In this case the ECHR found Russia to be responsible for human rights violations, although Russia had only a few troops present on the territory of Moldova. It appears that this situation would not amount to an occupation under international humanitarian law (IHL) as defined in Article 42 of the 1907 Hague Convention, but it was found to constitute effective control for the application of extraterritorial human rights obligations. (9)
Second, effective control can be exercised over persons, even if this control is only temporary. This covers places of detention or situations in which state agents arrest persons abroad (e.g. the Ocalan case, ECtHR; and the Lopez Burgus case, Human Rights Committee). (10)
In the Bankovic case, the ECtHR found that NATO’s aerial bombing of Belgrade did not amount to effective control, thereby creating a distinction between ground operations (that can exercise effective control) and air power (which the Court found did not amount to effective control in this case).
In the Al-Skeini case the UK House of Lords distinguished situations of conduct of hostilities during occupation from “calm occupation”. Accordingly, if hostilities break out in occupied territories, these territories are not always under effective control as this Court required for the extraterritorial applicability of Human Rights obligations.
The US and Israel, in particular, have raised objections to the application of international human rights law in occupied territories or during armed conflicts. (11)
While it is generally agreed that international human rights law and international humanitarian law both apply in situations of armed conflict, their relationship remains quite complex. Various approaches have been taken by international bodies.
A. The lex specialis approach
The International Court of Justice has identified three situations concerning the interaction between international humanitarian law and international human rights law:
“As regards the relationship between international humanitarian law and human rights law, there are thus three possible solutions: 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.” (12)
Accordingly, contradictory provisions should be regulated according to the principle of lex specialis. As international humanitarian law was specially designed to be applied in armed conflicts it represents the specific law that should prevail over certain other general rules.
The Inter American Commission of Human Rights in the Coard case followed this approach (13), as did the International Commission of Inquiry on Darfur presided by Professor Antonio Cassese:
“Two main bodies of law apply to the Sudan in the conflict in Darfur: international human rights law and international humanitarian law. The two are complementary. For example, they both aim to protect human life and dignity, prohibit discrimination on various grounds, and protect against torture or other cruel, inhuman and degrading treatment. They both seek to guarantee safeguards for persons subject to criminal justice proceedings, and to ensure basic rights including those related to health, food and housing. They both include provisions for the protection of women and vulnerable groups, such as children and displaced persons. The difference lies in that whilst human rights law protects the individual at all times, international humanitarian law is the lex specialis which applies only in situations of armed conflict.” (14)
B. The Complementary and Harmonious approach
The Human Rights Committee stated that
“the Covenant applies also in situations of armed conflict to which the rules of international humanitarian law are applicable. While, in respect of certain Covenant rights, more specific rules of international humanitarian law may be specially relevant for the purposes of the interpretation of Covenant rights, both spheres of law are complementary, not mutually exclusive.” (15)
The Human Rights Committee does not use the term lex specialis but refers to the more specific norms of international humanitarian law. By avoiding the lex specialis approach the Human Rights Committee seems to indicate that there is no need to choose one branch of law over the other, but rather to look for their simultaneous and harmonizing application.
According to this approach, as international human rights law and international humanitarian law are two branches of law that have a common objective of protecting persons, they should be harmonised and interpreted in a way that they complement and reinforce each other. In some cases, international humanitarian law will specify the extant rules and their interpretation, and in other cases it will be international human rights law, depending on which branch of law is more detailed and adapted to the situation.
C. Towards an interpretive approach?
The approach proposed by Professor Marco Sassòli seems to offer an alternative approach to the lex specialis and the complementarity approaches mentioned above (16). According to Sassòli, the relationship between human rights law and humanitarian law
“must be solved by reference to the principle ‘lex specialis derogat legi general ‘… The reasons for preferring the more special rule are that the special rule is closer to the particular subject matter and takes better account of the uniqueness of the context”.
However, Sassòli points out that using the lex specialis paradigm does not necessarily result in humanitarian law prevailing over human rights law.
“The principle does not indicate an inherent quality in one branch of law, such as humanitarian law, or of one of its rules. Rather, it determines which rule prevails over another in a particular situation.”
Thus, each situation need to be analyzed individually in order to determine which rule would apply: it could be an international humanitarian law rule or a human rights rule, depending which rule is more detailed and adapted to the situation. After determining that the lex specialis rule applies, Sassòli emphasises that the other branch of law, the lex generalis
“still remains in the background. It must be taken into account when interpreting the lex specialis; to the extent possible, an interpretation of the lex specialis that creates a conflict with the lex generalis must be avoided, and, instead, an attempt to harmonize the two norms made.”
Thus, for example, with regard to the rules of fair trial, as international humanitarian law may provide a higher threshold of protection with a set of rights which are non-derogable, it may regulate the applicable legal standards. On the other hand, for the international standards of detention one should look at the human rights rules, which may be more up to date and elaborated. Also with regard to the prohibition on torture, it is international human rights law that provides the relevant definition of torture. The right to life is another example, although a more complex one, of a possible use of the interpretive approach. In this situation the international humanitarian rules on distinction between military and civilian objectives may clarify the concept of arbitrary killing under human rights conventions during conflicts.
(1) International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004, ICJ Reports (9 July 2004), at § 106-113.
(2) International Court of Justice, Armed activities on the territory of the Congo (Democratic Republic of the Congo v. Uganda), ICJ Reports (19 December 2005), at § 216.
(3) Inter American Court of Human Rights, Bamaca Velásquez v. Guatemala, Judgment (25 November 2000), at § 207.
(4) UN Human Rights Committee, General Comment No. 31, CCPR/C/21/Rev.1/Add.13 (26 May 2004), at § 11.
(5) Concluding observations of the Human Rights Committee: "The State party should in particular (a) acknowledge the applicability of the Covenant with respect to individuals under its jurisdiction but outside its territory, as well as its applicability in time of war" – United States, UN Doc. CCPR/C/USA/CO/3 (2006), at § 10. “The State party should take all necessary steps to strengthen its capacity to protect civilians in the zones of armed conflict, especially women and children"- Democratic Republic of Congo, UN Doc. CCPR/C/COD/CO/3 (2006), at § 13. See also Israel, UN Doc. CCPR/CO/78/ISR (2003), Sri Lanka, UN Doc. CCPR/CO/79/LKA (2003), Colombia, UN Doc. CCPR/CO/80/COL (2004).
(6) European Court of Human Rights, Loizidou v. Turkey, Application no. 15318/89, (18 December 1996), at § 62.
(7)Inter-American Commission on Human Rights, Coard v. the United States of America, Case 10.951 (1999), at § 37.
(8) General Comment 31, Nature of the General Legal Obligation on States Parties to the Covenant, UN Doc. CCPR/C/21/Rev.1/Add.13 (2004), at § 10.
(9)Cordula Droege, “The Interplay between IHL and HR in situations of armed conflict”, Israel Law Review, Vol. 40 (2), 2007, 310-355, at p. 331.
(10) Obviously, however, if the control is of a temporary nature the scope of the relevant human rights obligations that are applied will be narrower.
(11) “Israel has consistently maintained that the Covenant does not apply to areas that are not subject to its sovereign territory and jurisdiction. This position is based on the well-established distinction between human rights and humanitarian law under international law.” State Periodic Report: Israel, CCPR/C/ISR/2001/2 (2002), at § 8.
"The United States takes this opportunity to reaffirm its long-standing position that the Covenant does not apply extraterritorially. States Parties are required to ensure the rights in the Covenant only to individuals who are (1) within the territory of a State Party and (2) subject to that State Party’s jurisdiction…The United States is engaged in an armed conflict with al Qaida, the Taliban, and their supporters. As part of this conflict, the United States captures and detains enemy combatants, and is entitled under the law of war to hold them until the end of hostilities. The law of war, and not the Covenant, is the applicable legal framework governing these detentions". USA, Follow-Up Response to the Human Rights Committee by State Party, UN Doc. CCPR/C/USA/CO/3/Rev.1/Add.1 (2008), pp. 2, 3.
(12) The 2004 Wall Advisory Opinion, at § 106.
(13) “[I]n a situation of armed conflict, the test for assessing the observance of a particular right, such as the right to liberty, may, under given circumstances, be distinct from that applicable in a time of peace. For that reason, the standard to be applied must be deduced by reference to the applicable lex specialis.” (Corad v. USA, at § 42)
(14) Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General (25 January 2005), at § 143
(15) UN Human Rights Committee, General Comment No. 31, CCPR/C/21/Rev.1/Add.13
(26 May 2004), at § 11.
(16) Marco Sassòli and Laura Loson, “The legal relationship between international humanitarian law and human rights law where it matters: admissible killing and internment of fighters in non international armed conflict” (to be published in the International Review of the Red Cross, Vol. 870, September 2008). See also: Sassòli, Marco, “Le DIH, une lex specialis par rapport aux droit humains?”, in AUER, FLÜCKIGER, HOTTELIER (éds.), Les droits de l'homme et la constitution, Etudes en l'honneur du Professeur Giorgio Malinverni, Schulthess, Genève, 2007, pp. 375-395.
Droege, Cordula, “The Interplay between International Humanitarian Law and International Human Rights Law in Situations of Armed Conflict”, Israel Law Review, Vol. 40, No. 2 (2007), p. 310.
Doswald-Beck, Louise, “The right to life in armed conflict: does international humanitarian law provide all the answers?”, 864 International Review of the Red Cross, 2006.
Hampson, F. and Salama, I., “Working paper on the relationship between human rights law and international humanitarian law”, UN Sub-Commission on the Promotion and Protection of Human Rights, E/CN.4/Sub.2/2005/14 (21 June 2005).
Hans-Joachim Heintze, “On the relationship between human rights law protection and international humanitarian law”, 856 International Review of the Red Cross, 2004, p. 789.
Lubell, Noam, “Challenges in Applying Human Rights Law to Armed Conflict”, 860 International Review of the Red Cross, 2005.
Sassoli, Marco, “Le DIH, une lex specialis par rapport aux droit humains?”, in AUER, FLÜCKIGER, HOTTELIER (éds.), Les droits de l'homme et la constitution, Etudes en l'honneur du Professeur Giorgio Malinverni, Schulthess, Genève, 2007, pp. 375-395.
Sassòli, M., and Olson, L.M., “The legal relationship between international humanitarian law and human rights law where it matters: admissible killing and internment of fighters in non-international armed conflict”, 871 International Review of the Red Cross 90, 2008, pp. 599-627.