Marco Sassòli* and Laura M. Olson. Volume 90 Number 871 September PDF

The relationship between international humanitarian and human rights law where it matters: admissible killing and internment of fighters in non-international armed conflicts Marco Sassòli* and Laura M.

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The relationship between international humanitarian and human rights law where it matters: admissible killing and internment of fighters in non-international armed conflicts Marco Sassòli* and Laura M. Olson Marco Sasso'li is Professor of International Law at the University of Geneva and Associate Professor at the Universite du Que bec a'montre al, and chairs the boards of the Geneva Academy of International Humanitarian Law and Human Rights and of Geneva Call.Laura M. Olson, J.D.,LL.M., isvisiting Scholar at the Center for Civil and Human Rights, Notre Dame Law School, and former ICRC Legal Advisor. Abstract This article explores the relationship between international humanitarian and human rights law during non-international armed conflict. It seeks to answer two questions which are crucial in practice, but where the relationship between the two branches and the answers of humanitarian law alone are unclear. First, according to which branch of law may a member of an armed group be attacked and killed? Second, may a captured member of an armed force or group be detained similarly to a prisoner of war in * I would like to thank my research assistant, Lindsey Cameron, for her thorough research and useful comments on many issues dealt with in this article. 599 M. Sassòli and L. M. Olson The relationship between international humanitarian and human rights law where it matters: admissible killing and internment of fighters in non-international armed conflicts international armed conflicts or as prescribed by human rights? Through application of the lex specialis principle, this article discusses possible answers to these questions. Much has been written about the relationship between international humanitarian law (humanitarian law or IHL) and international human rights law (human rights or IHRL), their separate origins, and their convergence and mutual influence. Their fields of application, the rights protected and the respective implementation mechanisms have been compared. The International Court of Justice (ICJ) and various human rights bodies have explored the extent to which humanitarian law is the lex specialis compared with human rights. What has provoked less jurisprudence is that on some issues human rights constitute the lex specialis. The meaning of the lex specialis concept and how the lex specialis can be identified has been studied by the International Law Commission (ILC) 1 and scholars in general, as has specifically the relationship between the two branches. 2 A systematic analysis to determine which of the two branches constitutes the lex specialis on issues covered by both is still lacking, but can certainly not be the aim of this article. In practice, the aforementioned theoretical questions do not matter for most problems actually affecting victims of armed conflicts. This is particularly true in international armed conflicts, for which humanitarian law treaties are best developed. First, the rules of both branches have the same addressees: states. Second, for many situations it is difficult to argue that human rights apply at all, because the victims cannot be considered as being in the territory or under the jurisdiction of the state attacking them. Third, with regard to many issues, one or other of the two branches simply contains no rules. There is nothing in humanitarian law about the freedom of the press in occupied territories, and human rights law says nothing about whether and how combatants have to distinguish themselves from the civilian population. Fourth, on most other issues the two branches lead to the same results, one or the other providing more details. In non-international armed conflicts, too, both branches mostly lead to the same results. The treatment of persons detained or otherwise in the power of a state is prescribed in a very similar way. The judicial guarantees for persons undergoing trial are likewise very similar, but they are better developed in human rights. The jurisprudence of the European Court of Human Rights (ECtHR) which never explicitly refers to humanitarian law concerning deliberate or 1 Martti Koskenniemi, Fragmentation of international law : difficulties arising from the diversification and expansion of international law, Report of the Study Group of the International Law Commission, UN Doc A/CN.4/L.682, 13 April 2006 ; Report of the International Law Commission (ILC), Fifty-sixth session, UN Doc A/59/10, paras. 304 ff. 2 See Marco Sassòli, Le droit international humanitaire : Une lex specialis par rapport aux droits humains? in Andreas Auer, Alexandre Flückiger, Michel Hottelier (eds.), Les droits de l homme et la constitution : Etudes en l honneur du Professeur Giorgio Malinverni, Schulthess, Geneva, 2007, pp , with further references. 600 indiscriminate attacks against civilians in Chechnya and eastern Turkey shows that even on such a typical humanitarian law subject as precautionary measures, which have to be taken for the benefit of the civilian population when attacking military objectives, human rights can lead to the same result as humanitarian law. 3 However, on two questions which are crucial in practice, not only is the relationship between the two branches unclear but also the answer of humanitarian law alone. First, may a member of an armed group, as according to humanitarian law applicable to international armed conflict, be attacked (and therefore be killed) as long as he or she does not surrender or is not otherwise hors de combat, oris this, as in human rights, admissible only exceptionally and when an arrest is not feasible? Second, may a captured member of an armed force or group be detained similarly to a prisoner of war in international armed conflicts, until the end of active hostilities, and without any individual decision, or must the captured person, as prescribed by human rights, have an opportunity to challenge his or her detention before a judge? These two questions have gained prominence in recent years in relation to some components of the war on terror, which have been classified by the US Supreme Court as non-international armed conflict. 4 Since 11 September 2001 the answer of the US administration has been that it may kill (e.g. in Yemen) and detain (e.g. in Guantánamo) unlawful enemy combatants according to the same standards as the humanitarian law of international armed conflict prescribes for combatants (but without their benefiting from the protection offered to lawful combatants). Critics object that most of these persons may be killed or detained only in accordance with the much more restrictive human rights rules. We shall try to provide answers independently of the particular nature of the war on terror, which would add two problems already discussed sufficiently elsewhere: the extraterritorial application of human rights; and whether all, some or any components of the war on terror are armed conflicts at all and, if so, whether they are international in character or not. While we shall deal with these questions in terms of traditional noninternational armed conflicts between a government and rebel forces, we think that our answers constitute a starting point for replies to the same questions in transnational armed conflicts. The answers are made more difficult by several factors that sometimes point in different directions. First, the treaty rules of the humanitarian law of non-international armed conflicts are more rudimentary than those applicable to international armed conflicts. Under the lex specialis principle, this would normally allow greater scope for human rights. In the last twenty years, however, the jurisprudence of international criminal tribunals, the influence of human rights and even some treaty rules adopted by states have instead brought the law of non-international armed 3 See Marco Sassòli, La Cour européenne des droits de l homme et les conflits armés, in Stephan Breitenmoser et al. (eds.), Human Rights, Democracy and the Rule of Law : Liber Amicorum Luzius Wildhaber, Dike, Zurich, 2007, pp United States Supreme Court, Hamdan v. Rumsfeld (29 June 2006) 548 U.S. 557, 126 S. Ct M. Sassòli and L. M. Olson The relationship between international humanitarian and human rights law where it matters: admissible killing and internment of fighters in non-international armed conflicts conflicts closer to the law of international armed conflicts, and some even suggest eliminating the difference altogether. In the many fields where the treaty rules still differ, the convergence has been rationalized by the claim that under customary international law the differences between the two categories of conflicts have gradually disappeared. This development reached its provisional peak with the publication of the ICRC study Customary International Humanitarian Law (ICRC Study) which claims, after ten years of research on state practice (in the form of official declarations rather than actual behaviour), that 136 (and arguably even 141) of 161 rules of customary humanitarian law, many of which parallel rules of Protocol I applicable as treaty law to international armed conflicts, apply equally to non-international armed conflicts. 5 Our discussion is further complicated by the fact that some of the practice upon which those customary rules are based is that of human rights bodies applying human rights law. Second, even if the lex specialis principle were to provide clear answers for cases in which the two branches of law respond to the same question with different rules (and it does not), it could only operate if the answer provided by each of the branches were clear. We shall show that, at least in humanitarian law, such clarity is not found in response to the two questions under discussion here. As for human rights, the answers are frequently based on general treaties without universal ratification or on regional treaties while the exact substance of customary human rights is at least as controversial as that of customary humanitarian law. Often those answers are also based on the practice of bodies which cannot take binding decisions and sometimes on soft-law instruments whose binding character is controversial. In addition, human rights limitations are often very flexible, inter alia because of vague limitation clauses which allow them to take the specific nature of each case into account. As there are only very few cases in which human rights mechanisms have resolved our questions in actual noninternational armed conflicts, we must often base our answers on precedents arising outside armed conflicts, without any certainty that the relevant mechanism would have reached a similar decision if the case had arisen in an armed conflict. Third, another factor in non-international armed conflicts which renders our discussion particularly complex (and is very neglected in scholarly writings 6 and even in the ICRC Study) is that the humanitarian law of non-international armed conflict is, as Article 3 common to the Geneva Conventions points out, equally binding for each party to the conflict that is, for the non-state armed group just as much as the government side. 7 This raises the question whether 5 Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, Cambridge University Press, Cambridge, Laura M. Olson, Practical challenges of implementing the complementarity between international humanitarian and human rights law demonstrated by the procedural regulation of internment in noninternational armed conflict, Case Western International Law Journal, Vol. 40 (2009) (forthcoming, manuscript on file with authors). 7 Liesbeth Zegveld, Accountability of Armed Opposition Groups in International Law, Cambridge University Press, Cambridge, 2002, pp. 9 38, with further references. 602 human rights are equally addressed to armed groups or whether, by virtue of the operation of the lex specialis principle, the answer to our questions is not the same for the government and for its opponent. Fourth, while state practice concerning our two questions in international armed conflicts is fairly uniform (though sometimes blurred by controversies about how a certain conflict should be classified), it is clearly contradictory in non-international armed conflicts. In confrontations with rebel groups, some states let human rights prevail, some apply by analogy the rules of humanitarian law governing international armed conflicts and some a mix of the two. As for the international supervisory mechanisms, their solutions also differ and it is not always clear whether their answer is based on an appreciation of the law in its entirety or limited, due to the subject matter of their jurisdiction, to the application of only one of the two branches under discussion here. The lex specialis principle and its meaning In this article it is assumed that human rights apply in armed conflicts. Some states disagree, but they have never specifically done so with regard to non-international armed conflicts on their own territory. As for humanitarian law, it is designed specifically to regulate armed conflicts. The problems arising from this simultaneous applicability of the said two branches of law must be solved by reference to the principle lex specialis derogat legi generali. 8 This principle seeks to establish, through an objective standard corresponding to the regulated subject matter, a preferential order for two rules that apply to the same problem but regulate it differently. The reasons for preferring the more special rule 9 are that it is closer to the particular subject matter and takes better account of the uniqueness of the context. It also better represents states intentions on how to regulate the given problem. Theoretically, a situation should be regulated by applying the most just rule, but in order to avoid evaluations that are too subjective, it is preferable to refer to a more objective standard that still reflects justice. 10 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 8 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, para. 25 ; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, para. 106 ; ICJ, Case Concerning Armed Activities on the Territory of the Congo (DRC v. Uganda), Judgment of 19 December 2005, paras Koskenniemi, above note 1, para. 60 ; Report of the ILC, above note 1, para. 305 ; Joost Pauwelyn, Conflict of Norms in Public International Law: How the WTO Law Relates to Other Rules of International Law, Cambridge University Press, Cambridge, 2003, p Norberto Bobbio, Des critères pour résoudre les antinomies, in Chaïm Perelman (ed.), Les antinomies en droit : Etudes, Bruylant, Brussels, 1965, pp M. Sassòli and L. M. Olson The relationship between international humanitarian and human rights law where it matters: admissible killing and internment of fighters in non-international armed conflicts determines which rule prevails over another in a particular situation. 11 Each case must be analysed individually. 12 Several factors must be weighed to determine which rule, in relation to a certain problem, is special. When the legal consequences of two norms regulating the same situation are mutually exclusive, speciality in the sense of logic implies that the norm that applies to certain facts must give way to the norm that applies to those same facts as well as to an additional fact present in that situation. Between two applicable rules, the one which has the larger common contact surface area 13 with the situation applies. The norm with the scope of application that enters completely into that of the other norm must prevail, otherwise it would never apply. 14 It is the norm with the more precise or narrower material and/or personal scope of application that prevails. 15 Precision requires that the norm explicitly addressing a problem prevails over the one that addresses it implicitly, the one providing the advantage of detail prevails over the other s generality, 16 and the more restrictive norm over the one covering the entire problem but in a less exacting manner. 17 A less formal and also less objective factor for determining which of two rules applies is the conformity of the solution to the systemic objectives of the law. 18 To characterize this solution as lex specialis is perhaps a misuse of language. The systemic order of international law is a normative postulate founded on value judgements. 19 Some consider that in reality the decision-maker first determines which rule is more just and then characterizes it as lex specialis. 20 In particular, when formal standards do not indicate a clear result, the teleological criterion must weigh in, even though it allows for personal preferences Koskenniemi, above note 1, para. 112 ; Heike Krieger, A conflict of norms : the relationship between humanitarian law and human rights law in the ICRC Customary Law Study, Journal of Conflict & Security Law, Vol. 11 (Summer 2006), pp. 269, 271 ; Philip Alston et al., The competence of the UN Human Rights Council and its special procedures in relation to armed conflicts : extrajudicial executions in the war on terror, European Journal of International Law, Vol. 19 (2008), p. 192 ; Report of the ILC, above note 1, para Anja Lindroos, Addressing norm conflicts in a fragmented system : the doctrine of lex specialis, Nordic Journal of International Law, Vol. 74 (1) (2005), p This term was first used by Mary Ellen Walker, LL.M. student at the Geneva Academy of International Humanitarian Law and Human Rights in Marco Sassòli s 2008 international humanitarian law course. 14 Karl Larenz, Methodenlehre der Rechtswissenschaft, 6th edn, Springer Verlag, Berlin, 1991, pp Bobbio, above note 10, p See for examples Seyed Ali Sadat-Akha, Methods of Resolving Conflicts between Treaties, Nijhoff, Leyden, 2003, p See, e.g., the European Court of Human Rights concerning the relationship between Articles 13 and 5(4) of the European Convention on Human Rights 1950 (hereinafter ECHR), ECtHR, Brannigan and McBride v. UK, Judgment, 26 May 1993, ECtHR, Series A, No. 258, p. 57, para Koskenniemi, above note 1, para Krieger, above note 11, p Georg Schwarzenberger, International Law as Applied by International Courts and Tribunals, Vol. 1, Stevens, London, 1969, p. 474 ; Bruno Simma and Dirk Pulkovski, Of planets and the universe : selfcontained regimes in international law, European Journal of International Law, Vol. 17 (2006), p Bobbio, above note 10, pp See also Wilfred Jenks, The conflict of law-making treaties, British Yearbook of International Law, Vol. 30 (1953), p In our opinion, the more the formal standard points to a clear conclusion in relation to a certain problem the less necessary it becomes to assess the systemic objective. The inverse is also true the more clearly the objective can be seen, the easier it is to distance oneself from the formal standard. Once the lex specialis is determined, the lex generalis still remains present in the background. It must be taken into account when interpreting the lex specialis; 22 an interpretation of the lex specialis that creates a conflict with the lex generalis must be avoided as far as possible and an attempt made instead to harmonize the two norms. 23 According to doctrine, the principle appears to refer implicitly to the antinomies between conventional that is, treaty-based rules. Whether the principle also applies to the relationship between two customary rules is less clear. In a traditional understanding of customary law this is theoretically not the case. The customary rule applicable to a certain problem derives from the practice and opinio juris of states in relation to that problem. In relation to the same problem, there cannot be a customary human right and
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