Transcript IHL & HRL
IHL & HRL Outline - Brief history; The relation between IHL & HRL The New York Current Locating the problematic of the interrelation of IHL & HRL Three common articulation of the relation ICJ and Lex Specialis Unconventional wars and the intensification of the problem Two distinct corpora juris • Laws of Armed Conflict (LOAC) and IHRL have separate histories, objectives and spatiotemporality The history of LOAC dates from Medieval Codes of honor and chivalry to lieber code (1863), declaration of St. Petersburg, the Hague, Geneva and New York current - LOAC regulates state relations on the international level. - The law applicable in times of armed conflict (wartime) and is about the relation of the State with population of its adversary. Two distinct corpora juris • 1948 UDHR and 1966 coming into force of ICCPR and ICESCR The IHRL played largely on the general ban on war. In specific Article 4 of ICCPR in declaring Right to life as a non-derogable right. - IHRL is about the relation of the State and its own population. The law of Peacetime. Human Rights in Armed Conflict The New York Current • The year was 1968 - Tehran Conference • The conference resulted in adoption of the resolution XXIII titled ‘ human rights in armed conflicts’ requesting the general assembly to invite the UN Secretary-General to conduct a study in order: ‘to secure the better application of existing humanitarian international conventions and rules in all armed conflicts’. And study the need for new convention for better protection of civilians, POW’s and combatants. Human Rights in Armed Conflict The New York Current • The Tehran Human Rights Conference of 1968, Doswald-Beck takes as : “the true turning point, when humanitarian law and human rights gradually began to draw closer.” • - ‘Human rights in armed conflict’ says Sean MacBride - one of the drafter of the resolution XXIII - equates the term IHL. Locating the New York current • Practical Problems: unavoidability of use of force cases of self-determination: - Wars of national liberations in Africa and Indochina Israeli occupation of Palestinian territories War in Vietnam • Legal - theoretical problem: - Non-derogability of the right to life Relation of IHL and HRL • Three main Articulations (Nehal Bhuta) - Cumulative - Interpretive complementary - Incompatibility Cumulative Approach • Common objective of the two bodies of law • ‘Humanitarian law is one branch of the law of human rights, and human rights afford the basis for humanitarian law.’ (A. Robertson) • In times of conflict between the two body of law that one that provides more protection is the applicable law. • This approach over-emphasises the protective (humanitarian) aspect of LOAC and tends to de-emphasise the high degree of permissibility of use of force in armed conflicts by the use of LOAC. Interpretive complementary • Two separate bodies of int. law with different origin and function which complement one another, for instance: - - IHL give content to non-drogable rights during times of war, e.g. clarifies the meaning of ‘arbitrariness’ in Article 6 of ICCPR; distinction, proportionality and necessity. HRL fills the gaps of IHL specially when the rules are not clear; e.g. Article 74 and 75 of API • The direction of this relation is not fixed Interpretive complementary - IACtHR in Las Palmeras v. Colombia and Bamaca Velasquez v. Guatemala : Used IHL norms as tools for interpreting the content of HRL of ACHR. - ECtHR in Isayeva v. Russia & Ergi v. Turkey Used HRL to supplement IHL norms during an internal armed conflict. Incompatibility • Two separated spatial and temporal field of application - HRL is applicable between government and the governed and concerns peacetime situation, while IHL is the regulation of hostile relation between states of combatant groups during an armed conflict. - IHL limits means and methods of use of force thus protectionism of IHL is a secondary effect of limiting the use of force. ICJ and Lex Specialis • The Nuclear Weapon case 1996 (para 25): “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.” ICJ and Lex Specialis • The Wall case 2004 (Para 106): 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 [concerning the legal consequences of Israel's Separation Wall], 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. Lex Specialis • - Lex Specialis: When two norms collide (conflicting) the more specific rule should be applied in order to provide content for the more general one. • The ICJ opinions have two immediate results: a) Although IHL is the body of law governing during armed conflicts, but HRL continues to apply. b) Interpretation of right to life is to be affected by IHL norms through Lex Specialis rule. Lex Specialis • The question is IHL always Lex Specialis in relation to HRL? If so, is there any difference between incompatibility approach and interpretive compatibility approach? Lex Specialis • The proposition that law A is lex specialis to law B could mean: (Koskenniemi) 1- Law A is a particular application of the more general law B in a given set of circumstances. ( cumulative and interpretive complementary) 2- Law A conflicts with law B, but A should be applied as an exception to B because A is more appropriate to the particular circumstances at hand. (incompatibility/ interpretive complementary) 3- A is a self-contained regime, which operates to the exclusion of the general law principle B (incompatibility approach) Unconventional wars and the Intensification of the problem • The direction of application of lex specialis is even more blurred given the prominence of forms of war which blurs the distinctive lines between wartime and peacetime, combatant and civilian. - Protraction of war - Spatial expansion - Small wars or intensified police action? References - Nehal Bhuta, ‘States of exception: Regulating targeted killing in a ‘global civil war,’ in Human rights, intervention, and use of force, P.Alston & E. Macdonald (eds.). - R. Arnold & N. Quenvet (eds.), International humanitarian law and human rights law; Towards a new merger in international law, (Martinus Nijhoff Publishers, 2008). - L. Doswald-Beck & S. Vite, ‘International humanitarian law and human rights law,’ International review of the Red Cross, No. 293.