Abstract
This chapter starts by relating the relationship between the law of armed conflict and human rights law as reflected in contemporary jurisprudence of the international courts. The impracticability of current interpretations of this relationship is then explained. After briefly considering the sources of international law and how the notion of lex specialis might assist the development of a new, practically applicable understanding, the chapter proposes an alternative framework for the application, respectively, of law of armed conflict and human rights law norms. The suggested framework is then applied to the conduct of hostilities and to Article 5 tribunals, while examples of matters that should be jointly regulated by both bodies of law and matters that should be regulated by human rights law alone are considered in turn. The effect of emerging approaches to warfare is considered and the relevance of stagnation in treaty law development is assessed.
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Notes
- 1.
In this respect, the author therefore agrees with Charles Garraway who identifies the need to determine which of human rights law or the law of armed conflict has priority in particular circumstances if, that is, one accepts that the complementary approach is not the answer. He suggests that in international armed conflict, priority should go to the laws of armed conflict, that in periods of occupation and non-international armed conflict, the boundaries between law enforcement operations and armed conflict are blurred and hard to define, with the result that the answer may be to look not at the technical classification of the armed conflict but at the level of violence within it; in low level non-international armed conflicts, human rights law should take priority in any conflict with law of armed conflict provision, while for other non-international armed conflicts of very high intensity, the law of armed conflict would prevail. He proposes a similar test in relation to occupation. Relatively low-key resistance, primarily individual attacks, imply human rights law having priority. High intensity resistance implies the law of armed conflict taking priority; Garraway 2012, pp. 110–111.
- 2.
It would also arguably involve a relatively wholesale rewriting of legal texts on the conduct of military operations. While texts such as the UK, German, Canadian and other Manuals on the Law of Armed Conflict would remain reliable as statements of the law of armed conflict, they would no longer be accurate representations of the law that should be applied in foreseeable operational circumstances and would require amendment to reflect the applicability of human rights norms.
- 3.
Consider Sassoli and Olson 2008, pp. 616–623 where the difficulties associated with the application of the human rights law norms as lex specialis are discussed and the conclusion is reached that those norms would render it impossible for non-state actors to intern legally. The point is made that if relevant legal rules make it impossible for a party to the armed conflict to fight efficiently, those rules will not be respected; Sassoli and Olson 2008, pp. 622–623.
- 4.
Note in this context Geoff Corn’s view that resistance within the profession of arms is liable to continue unless the application of human rights law in the context of armed conflict is “animated by a proper balance between humanitarian and military interests”; Corn 2010, p. 56.
- 5.
Statute of the International Court of Justice, San Francisco, 26 June 1945, Article 38 incorporating Article 59.
- 6.
UK Manual, para 1.11.
- 7.
API, Article 1(3).
- 8.
There are, as we saw in Chap. 2 additional conditions that must be met for an armed conflict to come within Additional Protocol II.
- 9.
The 1954 Hague Cultural Property Convention’s application to international armed conflicts and to occupation is expressed in similar terms to those in common Article 2 of the Geneva Conventions.
- 10.
Amendment adopted at the December 2001 Conventional Weapons Convention Review Conference.
- 11.
Note that a state’s legal obligations under Human Rights treaties are not legally shared by the non-state party, save when “stable control over a part of national territory that has enabled them to develop and perform government-like functions” exists; Pejic 2012, p. 83; see also Kleffner 2010, pp. 67–68.
- 12.
Geoff Corn comments that as the law of non-international armed conflict is not nearly so comprehensive as that applying to international armed conflicts, it is logical and seen by some as necessary to look to human rights law to inform interpretation of the law of armed conflict and add flesh to the bones of its regulatory framework; Corn 2010, p. 62. Marco Sassoli and Laura Olson point to the similarities in the results achieved by the two bodies of law in non-international armed conflicts; similar prescriptions as to the treatment of persons in the power of a state, similar judicial guarantees at trial (though more developed in human rights law) and even, in the case of the Chechnya and eastern Turkey jurisprudence of the European Court, similar results as to the precautions to be taken for the protection of civilians; Sassoli and Olson 2008, pp. 600–601.
- 13.
- 14.
For a recent example, see the final preambular paragraph to the Cluster Munitions Convention, 2008.
- 15.
Corn 2010, p. 67.
- 16.
Corn 2010, pp. 90–94.
- 17.
Sassoli and Olson 2008, p. 613. After a discussion of possible implementing approaches, Marco Sassoli and Laura Olson conclude, sensibly, with the rhetorical question if the permissible conduct varies according to the particular situation, how can the soldier know which rules to apply? The present author would suggest that this problem might suggest that the ‘broad handfuls’ approach proposed in the current chapter is the one that should be pursued.
- 18.
Droege 2007, p. 347.
- 19.
The author derives considerable support in this view from the Abella case. There it was determined by the Inter-American Commission on Human Rights that, in the context of a non-international armed conflict, civilians who attacked the Tablada base, whether individually or as a group, “are subject to direct individualized attack to the same extent as combatants”; Inter-American Commission on Human Rights, Abella v. Argentina (Tablada), Case No. 11.137, Report No. 55/97, 18 November 1997, p. 178. As Marco Sassoli and Laura Olson point out, the Commission then proceeded to apply international humanitarian law to the attackers; only attackers who surrendered and civilian bystanders were considered to benefit from the right to life and the question whether the attackers should have been arrested rather than killed was not raised; Sassoli and Olson 2008, p. 611 and see the discussion of further cases which, it is concluded, give no conclusive answer as to what is expected of government forces using force against fighters; Sassoli and Olson 2008, p. 612. Consider also, for example, William Schabas’ objection that human rights law requires that any deprivation of life can only be allowed if it pursues a legitimate purpose and the waging of aggressive war can never be a legitimate purpose; Schabas 2007, p. 612. International humanitarian law is, importantly, blind to the rights and wrongs of the recourse to the use of force that gave rise to the armed conflict, and therein lies its ability to protect all of those caught up in the violence.
- 20.
Pejic 2012, p. 87.
- 21.
Droege 2007, p. 336.
- 22.
Pejic 2012, p. 87, where the point is made that “the Third Geneva Convention provides a sufficient legal basis for POW internment and that an additional domestic law basis is not required”.
- 23.
Pejic 2012.
- 24.
Consider in this regard the case of Güleç v. Turkey, Case 54/1997/838/1044, Judgment on 27 July 1998, para 71.
- 25.
Droege 2007, p. 336.
- 26.
Droege 2007, p. 336.
- 27.
Henckaerts and Doswald-Beck 2005.
- 28.
Pejic 2012, p. 116.
- 29.
Perhaps Francoise Hampson is right that what is needed is a meeting of “members of the ICJ and of human rights treaty bodies, representatives of states with relevant experience and independent experts to provide solutions to the problems identified”; Hampson 2008, p. 572.
- 30.
Sassoli 2011, p. 70.
- 31.
Sassoli 2011, pp. 78–94.
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Boothby, W.H. (2014). Making Sense of the Human Rights Law/Law of Armed Conflict Conundrum: A Practical Proposal. In: Conflict Law. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-002-2_10
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