1. ACCA Conference – Louvain-la-Neuve
The Role of Human Rights Institutions in the Interpretation and Development of International Humanitarian Law
ACCA Conference – Louvain-la-Neuve

2. Overview
ACCA Conference – Louvain La Neuve – 29 May 2015
Background
Human Rights Institutions (HRI’s) & Humanitarian Law
United Nations Treaty Bodies
Inter-American System
European Court of Human Rights
African System
Pro’s & Contra’s

3. Background
ACCA Conference – Louvain La Neuve – 29 May 2015
HRI’s were created as supervisory mechanisms, monitoring compliance with their respective constituent treaties
Human rights treaties primarily conceived to apply in times of peace
No competence to monitor international humanitarian law (IHL)
As a result of a changing legal landscape, HRI’s are increasingly called upon to examine IHL
Inadequacy of traditional IHL enforcement mechanisms
Progressive juridification of military life
Humanization of international law
Continued applicability HRL in times of armed conflict
Gradual acceptance of extraterritorial application HRL

4. Human Rights Institutions & Humanitarian Law
ACCA Conference – Louvain La Neuve – 29 May 2015
I. United Nations Treaty Bodies (A)
No mention of IHL in older human rights treaties
IHL can only indirectly be considered
Explicit reference to IHL in later human rights treaties
Express and direct competence to monitor compliance with IHL
Engagement with IHL in:
General Comments (especially the HRC, other bodies less so)
Acknowledging the importance of IHL and the complementary nature of the relationship with human rights law (HRL)
Limited and general compliance-monitoring role through calls on states to adhere to and ratify certain IHL conventions

5. Human Rights Institutions & Humanitarian Law
ACCA Conference – Louvain La Neuve – 29 May 2015
I. United Nations Treaty Bodies (B)
Engagement with IHL in:
Concluding observations
Aside from some generic references, specific norms of lHL seldom explicitly invoked or referred to, but
Sometimes use of IHL-inspired language and concepts when expressing certain concerns as to the State’s standpoints and activities
No engagement with IHL when assessing individual complaints
Approach of UN Treaty Bodies towards IHL can be qualified as pragmatic and functional
General references, no precise and technical legal analysis of IHL norms

6. Human Rights Institutions & Humanitarian Law
ACCA Conference – Louvain La Neuve – 29 May 2015
Inter-American human rights system (A)
Regard to IHL in the context of the state monitoring functions, reports on human rights situations & decisions in individual cases
Inter-American Commission on Human Rights
Demonstrated a willingness to explicitly apply IHL in concrete cases
Juan Carlos Abella v. Argentina (para. 161): ‘the Commission must necessarily look to and apply definitional standards and relevant rules of [IHL] as sources of authoritative guidance in its resolution of this and other kinds of claims alleging violations of the American Convention in combat situations’
Referred to Article 27 & 29 ACHR as legal basis
From 2000 onwards, became more cautious and only ‘observed’ violations of IHL by States, without condemning them.

7. Human Rights Institutions & Humanitarian Law
ACCA Conference – Louvain La Neuve – 29 May 2015
Inter-American human rights system (B)
Inter-American Court of Human Rights
More conservative than the Commission
Las Palmeras v. Columbia (para. 33): ‘The [American Convention on Human Rights] has only given the Court competence to determine whether the acts or the norms of the States are compatible with the Convention itself, and not with the 1949 Geneva Conventions.’
But, still use of IHL as interpretative tool
Bámaca Velásquez v. Guatemala (para. 121): ‘the relevant provisions of the Geneva Conventions may be taken in considerations as elements of interpretation of the American Convention.’
From time to time, as the Commission, the Inter-American observes violations of IHL by States, without Condemnation

8. Human Rights Institutions & Humanitarian Law
ACCA Conference – Louvain La Neuve – 29 May 2015
European Court of Human Rights (A)
Evolution in the Court’s approach:
Initially, complete disregard for norms and standards of IHL
Ample opportunity to apply IHL in armed conflict related cases (Northern Ireland, South-East Turkey, Chechnya), but no attempt to do so
use of a ‘law enforcement’-model in assessing the conduct of States (see McCann v. United Kingdom)
Reason: Parties denied existence of armed conflicts, did not invoke IHL and did not derogate from the ECHR in line with Art. 15(1)  ‘the military operation in question therefore has to be judged against a normal legal background’, see Isayeva v. Russia (para. 191)
Later, reference to IHL as an interpretative tool for HRL
Discussion on IHL norms in ‘applicable law’ section, but little impact on decisions of the Court (see Al-Skeini v. UK & Varnava and others v. Turkey)

9. Human Rights Institutions & Humanitarian Law
ACCA Conference – Louvain La Neuve – 29 May 2015
European Court of Human Rights (B)
Evolution in the Court’s approach:
Most recently, explicit engagement with IHL and dual application of HRL and IHL in Hassan v. United Kingdom (2014)
‘By reason of the co-existence of the safeguards provided by international humanitarian law and by the Convention in time of armed conflict, the grounds of permitted deprivation of liberty set out in subparagraphs (a) to (f) of that provision 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’ (para. 104).
However, decision limited to international armed conflict and the deprivation of liberty
What road ahead?

10. Human Rights Institutions & Humanitarian Law
ACCA Conference – Louvain La Neuve – 29 May 2015
The African human rights system
Youngest human rights system, but early signs of greater openess towards IHL than other human rights bodies.
Art. 60 & 61 ACHR encourage the African Commission to rest on other international treaties and legal instruments to interpret the Charter
Acceptance of continued applicability of HRL in times of armed conflict, as well as the complementary nature of IHL and HRL and calls on states to respect IHL in its resolutions
In handling individual complaints: DRC v. Burundi, Rwanda and Uganda – ‘by virute of Art. 60 and 61, the commission holds that the Four GC’s and the two AP’s covering armed conflicts constitute part of the general principles of law recognized by African States, and take them into consideration in the determination of this case’
Explicit references to IHL in other regional human rights treaties

11. Human Rights Institutions & Humanitarian Law
ACCA Conference – Louvain La Neuve – 29 May 2015
Conclusion
Common, but differentiated approaches to IHL (Van Herik & Duffy, 2015)
Commonalities
All acknowledge the continued applicability of HRL in times of armed conflict and reaffirmed the co-applicability of HRL and IHL
Unless explicit references in constituent treaties, HRI’s are reluctant to apply IHL directly and only use it as an interpretative tool for HRL
With the sole exception of the ECtHR, the HRI’s have neglected to thoroughly and systematically examine how the interplay of the two bodies of law translates into practice and limited themselves to shallow statements
Differences in approach as a result of the differing legal frameworks, the political nature of their activities, legal culture and experience with armed conflict related cases

12. Pro’s & Contra’s Disadvantages
ACCA Conference – Louvain La Neuve – 29 May 2015
Disadvantages
Lack of expertise of HRI’s concerning IHL
HRI’s have reached conclusions that humanitarian law experts find problematic, showing little consideration of concerns of military necessity omnipresent in IHL
Led to complaints that HRI’s place obligations on States that are too burdensome to comply with in times of armed conflict
Inapplicability of Human Rights Law to Non-State entities
‘One hand tied behind the back’-syndrome
Might provide incentive for disregard of HRL in times of armed conflict
Might lead to a ‘watering down’ of HRL requirements, even in times of peace

13. Pro’s & Contra’s Advantages
ACCA Conference – Louvain La Neuve – 29 May 2015
Advantages
HRI’s involvement furthers the converging development of both bodies of law
Bridges the gaps in legal regulation through reconcialition of norms of IHL and HRL
This ultimately leads to a better protection of individuals in times of armed conflicts
HRI’s involvement adds pressure on States to comply with both bodies of law in times of armed conflict
Especially important with regard to IHL given the inadequacy of traditional enforcement mechanisms