Part IV. International Humanitarian Law and Human Rights Law Antoine Bouvier Legal Adviser International Committee of the Red Cross (ret)

Structure of the Lecture Introduction and definition IHL and the use of force Situations of application Commonalities and differences Material field of application A growing complementarity Concluding remarks

IHL: General Definition Principles and rules which set limitations to the use of violence during armed conflicts, in order to: Spare those persons ("civilians") not directly involved in hostilities 2. Limit the effects of violence (even to "combatants") to the amount necessary for the purpose of war

IHL and the Use of Force: jus ad bellum v. jus in bello Rules applicable between parties to an armed conflict and related to the armed conflict, formed by 2 main currents: Geneva Law Hague Law Rules governing the resort to armed force (practically disappeared) 2 exceptions (UN Charter): Self-defence Collective security operations Wars of national liberation?

Situations of applications: when does IHL apply? What is an armed conflict? "Armed conflict exists whenever there is a resort to armed force between States or protracted violence between governmental authorities and organised armed groups or between such groups within a State." ICTY, Tadic case, Jurisdiction, para. 70

International armed Conflict "all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them" (Common Art. 2, GC I – IV) "all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance" (Common Art. 2, GC I – IV) "armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist régimes in the exercise of their right of self-determination" (Art. 1(4), AP I)

Non-international Armed Conflict "In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties" (Common Art. 3, GC I – IV) "All armed conflicts…which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol" (Art. 1(1), AP II)

The lower Threshold This Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts. AP II, Art 1.2

What is common to IHL and IHRL? The underlying values of the bodies of law are the same. The individual is the ultimate beneficiary of the protection. Both IHL and HRL are parts of Public International Law Underlying values of dignity, respect… Both meant to protect the person. Some of the protections are different – for example, IHRL includes the right to vote, freedom of expression, freedom of assembly, etc – things that we don't find in IHL. But, IHRL also prohibits torture, requires minimum conditions necessary for survival, illegal detention, etc. IHL is not higher and mightier than IHRL – IHRL is just as legally binding when a State has ratified…

Main Sources of IHL Customary Law Treaty Law: Judicial decisions Geneva Conventions of 1949 Additional Protocols of 1977 and of 2005 Weapon treaties Rome Statute ? Judicial decisions Universal

Main HRL treaties Universal instruments Universal & Regional Bill of Rights Convention on Genocide 1948 Convention against Torture 1984 Convention on the Rights of the Child 1989 Regional instruments African Charter 1981 European Convention 1950 Inter-American Convention 1969 UDHR 1948 ICCPR 1966 ICESCR 1966 Universal & Regional

Differences Human Rights IHL Apply at all times 1 Apply at all times Only in armed conflict (but some obligations even in peace time) 2 Only binding on States Binding on States and non-state actors 3 Governs relations between States and individuals Governs relations parties to conflict 4 Derogations in times of emergency No derogation from IHL 5 Extra-territorial application? Unquestionably extraterritorial 6 Soft law No soft law Differences: When they apply – will look at that more closely in another minute. Note that in situations of peace IHL may still apply – obligation to train armed forces and duty to search for and prosecute or extradite persons suspected of war crimes. Binding on states vs. states and non-state actors (armed groups, even private military security companies, all actors participating in the armed conflict) Vertical vs. horizontal Derogation – did you talk about this already? Extraterritoriality – extent to which obligations imposed by law can be applied beyond a state's own territory. Does a State have responsibility for violations committed outside its sovereign territory? For IHL this is clear. This is a possible limitation on the responsibilty of States with respect to IHRL. In particular some HR treaties (e.g., civil and political rights, ICCPR, American Convention, European Convention). But some monitoring bodies have nonetheless affirmed that under certain circumstances ("effective control") human rights obligations do not stop at territorial borders. Soft law – have you gone over this? UN Standard Minimum Rules…etc.

When do IHL and IHRL apply? armed conflict IHL IHL IHL IHRL IHRL IHRL IHRL IHRL National law National law National law National law National law Peace Conflict non-international international

Derogation Certain human rights can be suspended in times of emergency Non-derogable rights – right to life, prohibition of torture, prohibition of slavery, prohibition of retroactive criminal laws, fair trial, arbitrary arrest or detention, slavery… Derogation is subject to certain conditions, especially proportionality and legality IHRL foresees the right to derogate in times of emergency – this means that many of the rights in question can be suspended – but there are certain rights that may never be suspended ("hard core") Right to life, prohibition of torture and slavery, the right not to be subject to retroactive laws and punishment. Need to notify derogationand permit only derogation strictly required by the situation and cannot adopt measures "inconsistent with other legal obligations under international law" (which includes IHL).

Derogation Art.4 ICCPR 1 . In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. (…) 3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.

Extraterritorial application of IHRL Article 2 ICCPR: “Each state Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant […]”. Case law: effective control Territory under control Persons in the power of the authorities Extraterritoriality – extent to which obligations imposed by law can be applied beyond a state's own territory. Does a State have responsibility for violations committed outside its sovereign territory? For IHL this is clear. This is a possible limitation on the responsibilty of States with respect to IHRL. In particular some HR treaties (e.g., civil and political rights, ICCPR, American Convention, European Convention). But some monitoring bodies have nonetheless affirmed that under certain circumstances ("effective control") human rights obligations do not stop at territorial borders.

Complementarity Common Goal : Protection of the individual COMPLEMENTARY PROVISIONS Right to Life Prohibition against Torture Prohibition against Ill-treatment Fair Trial IHL Protection of wounded, sick and shipwrecked Protection of POWs and civilian internees Conduct of Hostilities HUMAN RIGHTS Freedom of Expression Freedom of Assembly Right to Marry IHL – HR --

Complementarity Art. 72, AP I Preamble AP II IHL does not always replace IHRL in armed conflict Art. 72, AP I Preamble AP II IHL is lex specialis Lex specialis – when a specific law exists to address a particular situation, it takes precedence over any general laws that may also apply. In case of armed conflict, both IHL and those provisions fof IHRL that cannot be or are not derogated from apply simultaneously. IHL is lex specialis when it is more detailed. E.g., IAC you have detailed rules. NIAC you have less detailed rules. IHL itself confirms the applicability of human rights in armed conflict: Art. 72, AP I – do you all have this? The provisions of this section (treatment of persons in power of a party to the conflict)…are additional to the … applicable rules of international law relating to the protection of fundamental human rights during IAC. Preamble AP II: recalls furthermore that international instruments relating to human rights offer a basic protection to the human person"

Complementarity When IHL is not clear, IHRL can help to give meaning to it IHRL can also fill in "gaps“ IHL => conduct of hostilities HR => law enforcement Where not clear - Esp. NIAC – Rules of IAC are pretty detailed, but NIAC is less clear (CA 3 ). Also - Regarding civilians under pre-trial detention or srving a sentence, the law on occupied territories contains only a general rule for their humane treatment (Art. 76 GCIV). In such situations, IHRL provides further detail regarding what constitutes humane treatment. Gaps – there are certain things that IHL simply does not cover – and in such situations, IHRL has a role to play. What does IHL say about a crtain situation…uh, nothing. OK, well then what does IHRL say? Will go through a couple of examples.

Key messages Thank You! IHL and IHRL are based on the same values. IHL and IHRL both apply during armed conflict, but IHL applies only during armed conflict. Where IHL is more detailed (lex specialis), it trumps IHRL. Where IHL is unclear or where IHL does not address an issue, IHRL complements IHL. Thank You!