Human Rights and Armed Conflict

KQ: How does human rights apply in armed conflict?
Q: Is there a move from Lex Specialis to interplay to coexistence?


ICCPR, Arts. 2, 4, 6, 9, 10, 14
Common Article 3 to the Geneva Conventions 1949
4th Geneva Convention on the Civilian Population 1949
Additional Protocol I: Fundamental Guarantees
Additional Protocol II: Humane Treatment

The Relation Between Human Rights and the Law of Armed Conflcit


Lexis Specialis Approach

Legality of Nuclear Weapons Case:

Interplay


Others


Jurisdiction and Effective Control
Loizidou v Turkey: the meaning of the term “jurisdiction” in Art. 1 of the ECHR is primarily “territorial” but the ECHR can exceptionally apply to a state’s territorial acts where a state has “effective control” over the territory where the acts occur, as in the case of military occupation.

Fundamental Guarantees
Additional Protocol I:
Fundamental Guarantees and Humane Treatment
Additional Protocol II:
Non-derogation
Derogations provide a signficant connection in the application of HR in NIACs. Such derogations must result from the exigencies of an NIAC rather than from internal disturbances as such. But it must be understood that the derogation of HR during states of emergency and armed conflict does not grant unbridled disregard for HR. Procedural safeguards underpin derogation from HR strictly and proportionately to the exigencies of the situaiton for which derogation is called for.

Therefore a major first bridge in the interplay between IHL and IHRL concerns the way in which human rights that are not derogable, such as non-discrimination, the right to life, the prohibition on torture, inhumane and degrading treatment, and the procedural guarantees of a fair trial apply during armed conflict.

Non-refoulement
Article 45, GCIV.
Transfer of protected persons are prohibited in three specific circumstances:
  1. if the destination State is not party to the Geneva Conventions;
  2. if it is unwilling or unable to apply the Convention; and
  3. if the protected person has reason to fear persecution at the hands of the destination State

Co-existence
Hassan v UK
UK argues lex specialis against Article 5
Even under armed conflict safeguards of ECHR apply, albeit interpreted against the background of the provisions of IHL: Because of the co-existence of the safeguards provided by IHL and by the ECHR in time of armed conflict, “the grounds of permitted deprivation of liberty set out in Article 5(1) should be accommodated, as far as possible, with the taking of prisoners of war and the detention of civilians who pose a risk to security under the Third and Fourth Geneva Conventions

Art 5 ECHR applies
Therefore 2 systems of law coexist

Violations Deserving Punishment
Q: How does the criminal responsibility of IHL, IHRL and ICC come about?
ICC Statute:
Grave Breaches of the Geneva Conventions
Genocide
Crimes Against Humanity

Important Cases

The Legality of Nuclear Weapons (1996) ICJ Rep., paras. 21-28; 76-78
para. 25 - The protection of the ICCPR does not cease in times of war except by operation of Article 4 of the Covenant. Regarding the right to life, the test of what is an arbitrary deprivation of life is determined by the law applicable in armed conflict (lex specialis) and not deduced from the terms of the Covenant itself.
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004) ICJ, Opinion of 9 July 2004
para. 106 - Generally, the protection offered by human rights conventions does not cease in armed conflict save through the effect of provisions for derogation of the kind found in Art. 4 of the ICCPR. Regarding the relationship between IHL and IHRL, there are three possible situations: rights exclusively matters of IHL; rights exclusively matters of IHRL; others matters of both. IHRL is lex specialis.
para. 111- ICCPR is applicable in respect to acts done by a State in the exercise of its jurisdiction outside its own territory.
DRC v Uganda (2005) ICJ, Judgment of 19th December 2005
reiterates above wall case.
Nicaragua v US (Merits) para. 219
219. The conflict between the contras' forces and those of the Government of Nicaragua is an armed conflict which is "not of an international character". The acts of the contras towards the Nicaraguan Government are therefore governed by the law applicable to conflicts of that character ; whereas the actions of the United States in and against Nicaragua fall under the legal rules relating to international conflicts. Because the mini- mum rules applicable to international and to non-international conflicts are identical, there is no need to address the question whether those actions must be looked at in the context of the rules which operate for the one or for the other category of conflict. The relevant principles are to be looked for in the provisions of Article 3 of each of the four Conventions of 12 August 1949, the text of which, identical in each Convention, expressly refers to conflicts not having an international character.

Bancović Judgment, 2001 (ECHR)
Loizidou v Turkey 23 EHRR 101
Behrami and Behrami v France and Saramati v France, Germany and Norway (2007) 45 EHRR SE10
R (Al-Skeini) v Secretary of State for Defence (2007) UKHL 26
R (Jedda) v Secretary of State for Defence (2007) UKHL 58
Juan Carlos Abella v Argentina, Judgment of 18th November 1997. See Annual Report of the Inter-American Commission (55/97) 1997: Washington, p. 271
Jose Alexis Fuentes Guerrero et al v Columbia, Judgment of 13th April 1999. See Annual Report of the Inter-American Commission (61/99) 1999.
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