Abstract:
International humanitarian law (IHL) is that branch of law that contains the rules to protect potential or actual victims of armed conflict, rules on the conduct of warfare, and the rules relating to the rights and duties of armed forces during a conflict. IHL includes “Geneva law” as well as “Hague law.” IHL is often also known as “law of armed conflicts” and “law of war”. IHL also consists of many other areas of law: refugee law, human rights, migration and peaceful settlement of disputes, diplomatic relations, environmental law, and more. IHL is basically concerned with protecting non-combatants, civilian property and humanitarian organisations attempting to minimize the suffering caused by armed conflict. These concerns are discussed in Four Geneva Conventions and three Amending Additional Protocols. These Conventions and the Additional Protocols deal with humanitarian issues arising from armed conflict and its aftermath. Directing armed force against civilians, non combatants and humanitarian agencies or mistreating prisoners of war are all violations of IHL.
1. Introduction:
IHL focuses on protecting civilians, civilian property, humanitarian organisations, those who cannot fight and regulating armed conflict. The First Geneva Convention discussed the Amelioration of the Condition of the Wounded and the Sick in Armed Forces in the Field, the Second Convention was taken into account ‘for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea’, the Third Convention addressed issues ‘relative to the Treatment of Prisoners of War’ while the Fourth Convention dealt with matters relative to the Protection of Civilian Persons in Time of War’. There are other three additional amending protocols: Protocol I relating to the Protection of Victims of International Armed Conflicts, Protocol II relating to the Protection of Victims of Non-International IHL ensures a less protection even during the most profound disaster of human society, namely war.1
International humanitarian law (IHL) and human rights law are two different disciplines. In the 19th century Henri Dunant began his operation in favour of victims of war and the tradition of IHL can be drawn to that time. During armed conflict, the combatants have a licence to kill combatant elements of the hostile camp. Somebody said – obviously with a good degree of sarcasm – with regard to the outbreak of a war: the hunting season will open. Life is the most precious holdings human beings have, finds itself structurally endangered during an armed conflict. Notwithstanding this painful point of departure, IHL seeks to protect what realistically can be protected notwithstanding the clash of arms.
On the other hand, human rights emerged during the period after World War II. They took birth from the atrocities during that war, especially by German armed forces, but also by the victorious allied powers. According to their basic concept, human rights should provide protection against state interference, but, as everyone knows, their scope has over the years greatly continued beyond the boundaries of purely ‘negative’ freedom to enforce on states many promise to provide protection also against involvement by private persons and generally to ensure their effectiveness (‘positive’ rights).2
2. IHL and Human Rights Law: The International Court of Justice
Before the International Court of Justice (ICJ), the issue became major importance when the Court had to deliver its advisory opinion on nuclear arms in 1996.7 Some governments thought that nuclear arms had to be placed under unlawful activity because they do not allow for attacking a military target with the necessary accuracy. It was pleasing that on account of their general indiscriminate effect, they invade upon the right to life. Other governments stood against, putting the traditional doctrine subsequent to which all the problems rose during an armed conflict are governed by IHL.
Dealing with these two opposite opinions, the Court had to respond. At first, it observed ‘that the protection of the International Covenant on Civil and Political rights does not restricts in times of war’, grasping however at the same time, in a somewhat conflicting style, the theory of lex specialis by stating that: 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 only8 be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself.9There is a proper lack of certainty regarding the idea which the Court attached to those words. On the one hand, it can be maintained that the Court recommended the thesis of the complete separation of the two disciplines. On the other hand, however, it is also genuine to argue that the Court rather wanted to highlight the belief that Article 6 ICCPR has to be read and understood in conjunction with the rules of IHL. This second reading seems to be all the more reasonable since the former reading would have amounted to a complete abandonment of the introductory sentence about the continuity of human rights in wartime.
Eight years later, in 2004, the Court had to re-examine the relationship between human rights and IHL when it was called upon to assess the lawfulness of the construction of a wall in the occupied Palestinian territory.10 In that context, it became necessary to call on the obligation of the Israeli authorities to respect, over and beyond IHL, the rules of human rights law, in particular the provisions of the Covenant. The harshness of interpretation resulting from Article 2(1) of the Covenant is well-known. That provision describes two criteria, the presence of a person in the territory of the state concerned and its jurisdiction with respect to that person. But this is not the topic we are discussing. We are interested in the co-existence of the rules proclaimed by the Covenant and IHL.
At this time, the words of the Court were much more distinct, without, however, completely stating the problématique. The Court differentiates the three modes of co-existence. In the first place, it deals with unwavering firmness that the protection of the conventions on human rights does not cease in case of armed conflict. And then it continues as follows: 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 matters of human rights law; yet others may be matters of both these branches of international law.11In the judgment of 2005, the matter between the Democratic Republic of the Congo and Uganda, it reassured that holding.12
Few days back, in the order issued on 15 October 2008 in respect of the dispute between Georgia and Russia, the Court assumes without any hesitation that the International Convention on the Elimination of All Forms of Racial Discrimination applies in any event during an armed conflict: The acts purported by Georgia seems to be capable of conflicting rights, provided for by CERD, even if certain of these purported acts might also be covered by other rules of international law, including humanitarian law.13This time, the division into three classes no longer appears. However, this new version of the proposition should not be exaggerated, since the Court was put up with a request to issue a conditional measure. The desperation of the matter predominates over any other consideration.
3. The Jurisprudence of Human Rights Courts:
One should welcome the angle taken by the Court in the leading case of the Wall. However, one could say, ‘Your Excellencies, we are still confused, but on a higher level.’14 In fact, in an actual case, it will always be important to know in what sector the admissible occurrences are located. For a clear example: the general guarantees which surround the arrest of a person in accordance with Article 9 ICCPR cannot find application to prisoners of war. During armed conflict, any judicial control system is necessarily defective, and masses of persons, captured as prisoners of war, can hardly be brought before a judge according to the perfectionist model enclosed in Article 9 ICCPR. But most cases will be located in a half-light zone where no straightforward answers can be given.
In the jurisprudence of the regional institutions for the protection of human rights the use of human rights has already been discussed in detailed.
Initially, the institutions of the Pact of San José, i.e. the American Convention on Human Rights, confronted with the issue. In the case of Las Palmeras,15 a Columbian case, the Inter-American Commission decided that it was necessary to check the facts also under the light of IHL. In this issue it was the attack by the armed forces of the state against a school. A child, their teacher, and several workers in the surrounding area died when the armed forces used weapons against the school building and accomplished extra judicially some of the persons they had arrested since they suspected that the school was a hiding place for guerrilleros. For its part, the Court did not approve the stand taken by the Commission. It said in a few words that its command was confined to applying the American Convention, and that accordingly it did not have the authorization to go beyond the limits drawn by that Convention.16 It did not even mention the concept that the law of the Convention could be inapplicable.
This is obviously not a satisfying judgment since it leaves open the question pursuant to which criteria the substantive assurance should be made whether a person has lost his/her life in an arbitrary manner (American Convention, Article 4(1)).17 Especially in armed conflict, this question raises serious difficulties.
At the European Court of Human Rights in Strasbourg, the judges had many ways to deal with episodes in the internal armed conflict in Chechnya. The judgment in Isayeva v. Russia of 24 February 200518contains all the elements that have guided the Court in all of its later decisions. The Russian forces attacked a village where guerrilla fighters had also taken refuge. The inhabitants tried to escape from the village but were attacked during their flight by the Russian air force. Many people died. The authors of the application, relatives of the victims of those attacks, invoked a violation of the right to life. Without the least hesitation, the Court examined the facts under Article 2 ECHR without asking whether such occurrences came ratione materiae within the scope of the ECHR or whether, according to the principle of subsidiarity, the law of peace had to yield to the law of armed conflict. On the other hand, its assessment was founded on criteria which essentially belong to IHL, in that it reviewed in great detail the strategy which the Russian forces should have adopted. Its conclusion was: yes, the right to life of the victims had been violated.
Later cases confirm this approach. In the recent case of Khatsiyeva,19 the Russian air force killed three young men who were working in a field. The military commanders believed that they were members of an illegal fighting group. For the Court, there can be no doubt that the Russian side failed to take the requisite precautions. Therefore, it concluded that a violation of Article 2 ECHR had taken place. The decision in Mezhidow of 25 September 2008,20 where a village had been hit by artillery shower, is very same. Five members of a family died. The Court notes that, given the circumstances, the use of force was not absolutely necessary and therefore not fully proportionate to pursuing the objectives indicated in Article 6(2) ECHR.21
4. Consequences:
A. Collateral Damage
The first question is very natural. Is it not easy to disregard altogether the concept of ancillary damage, damage that can be human lives? Does not the dignity of the human person require constraining from balancing human life against the so-called ‘military necessity’? It is true that to balance these two elements may at first place appear to be a heinous operation. On the other hand, the contrast between military objectives and civilian objects adds to the core of humanitarian law. If it is no longer permissible to attack the installations and military units of an adversary if there are civilians in the neighbourhood, a breakdown of the entire reign of distinctions between civilians and combatants is almost pre-programmed. The parties to an armed conflict are compelled to free their military set-up from ‘densely populated areas’ of their civilian population (Articles 57(7), 58(b) of Additional Protocol I). If, deliberately, they announce such set-up into civilian environs, they must assume full responsibility. They cannot, by such tactics, obtain military advantages. It would be highly irrelevant to favour a party which does not respect the applicable rules of aggressiveness in order to change the military balance in its favour. To prohibit the right to attack military goals if civilian victims must be expected would lead to that result. This again would mean that reciprocity, the principle which encourages the parties involved to respect the rules on the conduct of armed activities, could not be maintained. Accordingly, any such new rule would hardly be respected, with extremely serious consequences for the entire administration for the protection of civilians. However, in any case where civilians are to be expected as victims of an attack against a military objective, the analysis must be strict. The test of proportionality must be judged with the proper care. In that prospect, Article 57 of Additional Protocol I provides essential indicators. It cannot be in assent with international law to crush, by bombing from the air, entire families on story of the suspicion that someone in a particular house is somehow involved in Hamas activities.
B. The Notion of ‘Combatant’ or ‘Fighter’ in Non-International Armed Conflict
Getting back to non-international armed conflict, the question who is a ‘combatant’ is exceptionally tender.22 Additional Protocol II of 1977 refers only essentially, by contrast, to that concept by affording protection to ‘persons who do not take a direct part or who have ceased to take part in hostilities’ (Article 4(1)). Subsequently, Article 13 sets out guarantees in favour of the ‘civilian population’. Similarly, Common Article 3 of the four Geneva Conventions of 1949 talks only of persons ‘taking no active part in the hostilities’ – which constrain drawing a difference between such persons and others who in fact play an active role in armed activities. It stands to reason that persons who are actively engaged in armed activities may be killed. But how do we symbolise a fighter who has withdrawn to his home and has stayed there for days, maybe even weeks? Is he still a combatant?23
In Afghanistan the Americans kept that view, and they feel accordingly justified in attacking habitat with warplanes even far away from any actual aggression. All families have been devastated. Generally, the end result has been the death of a so-called ‘terrorist’ ‘disposed of, but followed by the death of many other persons, civilians to all intents and purposes. Here, one can see very clearly the serious drawbacks of the difference between the law of human rights and IHL:
- According to IHL, a person who belongs to the ‘armed forces’24 of the enemy can be targeted, also outside active hatred;
– According to the law of human rights, whenever the state wants to take the life of a human, it must take the all possible precautions, following the precise objectives of the relevant clauses in the provisions guaranteeing the right to life. The entire framework, the particular situation, must be taken into account. Review of cases of self-defence is carried out according to strict rules. Shoot to kill are applicable only in extreme situations.
I think that literally the cases we are accosted with, cases of the use of force outside active hostilities should all be reviewed on the basis of human rights – exclusively according to human rights. Cases of ‘targeted killing’ have not been mentioned, but I am quiet convinced that such cases should also be looked pursuant to the rules of human rights law. In cases where no fighting between opposite forces takes place, a licence to kill is unacceptable.25 Nor can the law of war be light-handedly extended by including in the category of combatants or fighters all those who belong to the political groundwork of a movement engaged in actual hostilities. For instance, policies which seek to eradicate anyone who has discharged a political function for Hamas in the Gaza strip would therefore be clearly inconsistent with the requirements of IHL.26 There is no approval for withdrawing attacks against the civilian population from the boundary of human rights by erasing the borderline between that population and those involved in armed activities.
5. Conclusion:
To a great extent the gates of the process for the protection of human rights are wide open. As we are aware of the fact that IHL is affected by a great lack of remedies. The interference of the European Court of Human Rights is therefore highly recommended. But there is one big caveat: we do not know whether the Court can really bear the weight of mass phenomena as they may derive from a large-scale armed conflict.27 Legal proceedings resulting from international armed conflict has traditionally been handled at intergovernmental level in the relationship between states, and there are good grounds for maintaining that practice. However, as far as internal armed conflicts are concerned, that path is closed. Primarily, the process of the state concerned are called upon to take the required remedial action. However, where those systems fails to operate in accordance with the human rights obligations of their country, the avenue to Strasbourg remains the only remedy which victims can avail of.
Submitted by:
Umang Raj Student,
4th Yr;
B.A.LLB Bangalore Institute of Legal Studies, Bangalore.
Footnotes:
1 See, for instance, E. David, Principes de droit des conflits armés(2002), at 48ff.
2 See, for instance, C. Tomuschat, Human Rights. Between Idealism and Realism (2nd edn, 2008), at 52ff.
3 F. Berber, Lehrbuch des Völkerrechts, ii: Kriegsrecht (2nd edn, 1969), at 64; A. Verdross, Völkerrecht (1937), at 293.
4 See Israeli Report to the Human Rights Committee, UN Doc CCPR/C/ISR/2001/2, 4 Dec. 2001, at para. 8, and Response of the Human Rights Committee, Concluding observations of 4/5 Aug. 2003, UN Doc CCPR/CO/78/ISR, 21 Aug. 2003. Its position received support from Dennis, ‘Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation’, 99 AJIL (2005) 119, at 139.
5 See, in particular, Roberts, ‘Transformative Military Occupation: Applying the Laws of War and Human Rights’, in M. Schmitt and J. Pejic (eds), International Law and Armed Conflict: Exploring the Faultlines. Essays in Honour of Yoram Dinstein (2007), at 438, in particular 452–458.
6 A vivid reflection of that excessive extension is the adage coined by some older German writers: ‘Kriegsräson geht vor Kriegsmanier’, see E. Castrén, The Present Law of War and Neutrality (1954), at 65. See also the discussion by Berber, L. Oppenheim and H. Lauterpacht, International Law, ii: Disputes, War and Neutrality(7th edn, 1952), at 231 (with references).
7 Legality of the Threat or Use of Nuclear Weapons [1996] ICJ Rep 226.
8 Emphasis added.
9 Ibid., at 240, para. 25.
10 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory [2004] ICJ Rep 136.
11 Ibid., at 178, para. 106.
12 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), 19 Dec. 2005, 45 ILM (2006) 271, at 317 para. 216.
13 Application of the International Convention on the Elimination of All Forms of Racial Discrimination, Order, 15 Oct. 2008, at para. 112, available at: www.icj-cij.org/docket/files/140/14801.pdf.
14 See also Dennis, supra note 4, at 133: ‘the Court did not offer specific guidance on how to subdivide the rights into these categories’.
15 Preliminary Objections, Judgment, Series C No. 67, 4 Feb. 2000.
16 Ibid., at para. 33.
17 ’Every person has the right to have his life respected … No one shall be arbitrarily deprived of his life.’
18 App. No. 57950/00, 24 Feb. 2005, available at:http://cmiskp.echr.coe.int/tkp197/portal.asp?sessionId=43014001&skin=hudoc-en&action=request.
19 App. No. 5108/02, 17 Jan. 2008, available at:http://cmiskp.echr.coe.int/tkp197/portal.asp?sessionId=43014001&skin=hudoc-en&action=request.
20 App. No. 67326/01, 25 Sept. 2008, available at:http://cmiskp.echr.coe.int/tkp197/portal.asp?sessionId=43014059&skin=hudoc-en&action=request.
21 It should be added that national courts have affirmed the applicability of the ECHR to persons who were arrested by the armed forces of a state party even outside the national territory: Al Skeini v. Secretary of State for Defence [2007] UKHL 26; Al-Jeddah v. Secretary of State for Defence [2008] 1 AC 332 (HL).
22 Technically, in non-international conflict there are no combatants, but only fighters: see Bothe, ‘Töten und getötet werden – Kombattanten, Kämpfer und Zivilisten im bewaffneten Konflikt’, in K. Dicke et al. (eds), Weltinnenrecht. Liber amicorum Jost Delbrück (2005), at 67, 72.
23 No clear answers can be gleaned from Rule 1 of the codification exercise by J.-M. Henckaerts and L. Doswald-Beck, Customary International Humanitarian Law, i: Rules (2005), at 3ff.
24 Art. 1(1) of Additional Protocol I speaks of ’dissident armed forces or other organized armed groups’.
25 Bothe, supra note 22, at 72ff, 80, is of the view that a fighter remains a fighter and remains subject to attack even when he returns home. In our view, this interpretation does not take sufficiently into account the specificities of non-international conflict.
26 Reference is made to a report by the International Herald Tribune, 17–18 Jan. 2009, at 8: ‘[t]he army attacked “both aspects of Hamas – its resistance or military wing and its dawa, or social wing” – a senior [Israeli] intelligence officer said. He argued that Hamas is all of a piece and that in a war its instruments of political and social control were as legitimate a target as its rocket caches.’ This is a recipe for total war.
27 In fact, the Annual Report 2008 of the European Court of Human Rights, at 128, lists 2,022 pending cases against Georgia whereas one year earlier the number was 286: see Annual Report 2007, at 135.