1. Lecture 11
The relationship between international humanitarian law and human rights law

2. Two areas of international law:
International humanitarian law:
Agreements between states on how to conduct war, and on protection of individuals (civilians and combattants)
International human rights law:
Agreements between states regulating the relationship between each state and the indivuduals over which it has jurisdiction

3. The Content of IHL is PROTECTION of 1) Combatants:
Soldiers/officers
Others (participants in hostilities)
2) Non-combatants:
Soldiers hors de combat (Sick, wounded, surrendered, POWs)
Civilians

4. The Content of HRL is PROTECTION
of all persons within the jurisdiction of a State (regardless of citizenship) against abuse of power of State authorities, or failure by State authorities to ensure human rights

5. International Human Rights Law
Point of departure:
Restrictions on arbitrary abuse of power by the state
General treaties:
International Covenant on Civil and Political Rights (1966)
International Covenant on Economic, Social and Cultural
Rights (1966)
European Convention on Human Rights and Fundamental
Freedoms (1950)
Special Treaties:
Convention on Torture
Convention on Racial Discrimination
Convention on Discrimination of Women
Etc..

6. The duty bearers and the right holders
Rights-holders
International humanitarian law (IHL)
STATES
-INDIVIDUALS
- STATES
- INDIVIDUALS
International humans rights law (IHRL)
- INDIVIDUALS (persons)

7. Remedies and monitoring mechanisms
under humanitarian law (IHL) and human rights law (HR)
Duty-bearers
Rights-holders
Mechanisms
International humanitarian law (IHL)
STATES
INDIVIDUALS
ICJ (& other treaty mechanisms)
National courts
Nuremberg/Tokyo
ICTY/ICTR
ICC
International humans rights law (IHRL)
(STATES)
International HR courts & other monitoring bodies
ICJ & HR Courts etc

8. Examples of civil and political rights:
Freedom of speech / the right of expression
The right of assembly/organisation (freedom of association)
Freedom of religion/belief
Prohibition against torture and cruel and degrading punishment
The right to liberty and physical integrity (restrictions on the use of detention)
The rights of fair trial (Independent courts, presumption of innocence, etc..)
Prohibition against retroactive laws or judgements without legal basis
Examples of economic, social and cultural rights:
The right to education
The right to health
Right to form and join trade unions
Right to reasonable working conditions
Right to housing
Freedom from discrimination
Race/ethnicity/national or social origin etc
Gender
Political opinion
Disabilities, age

9. When do human rights apply?
Point of departure: Always
No qualification of situations (see f.ex. Articles 1 of the ECHR and Article 2 of the ICCPR)
What can states do when the security (or interests) of the state is threatened?
Limitations possible for some of the rights
Derogation in emergencies

10. Limitations: ECHR art. 8,9,10,11
Art.8: Right to respect for privacy and family life
Art.9: Freedom of thought and religion
Art.10: Freedom of expression
Art.11: Freedom of assembly

11. Limitations must be: Prescribed by law
Necessary in a democratic society
In the interests of national security, territorial integrity or public safety
For the protection of public order, health or morals
For the protection of the rights and freedoms of others

12. No limitations with regard to:
Right to life (except those which are listed in article 2 and 15)
Prohibition of torture
Prohibition of slavery and forced labour
Right to liberty and security
Right to a fair trial
No punishment without law

13. Article 15 ECHR :– Derogation in time of emergency
1. In time of war or other public emergency threatening the life
of the nation any High Contracting Party may take measures derogating
from its obligations under this Convention to the extent strictly required by the
exigencies of the situation, provided that such measures are not inconsistent
with its other obligations under international law.
2. No derogation from Article 2, except in respect of deaths resulting from
lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made
under this provision.
3. Any High Contracting Party availing itself of this right of derogation shall
keep the Secretary General of the Council of Europe fully informed of the
measures which it has taken and the reasons therefor. It shall also inform the
Secretary General of the Council of Europe when such
measures have ceased to operate and the provisions of the Convention
are again being fully executed.

14. Requirements for derogation
Art.15 (1). In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.

15. Non-derogable rights
Art.15 (2): No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision.

16. Article 2 (Right to life):
Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

17. Article 2 (continued):
Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling of a riot or insurrection

18. “lawful acts of war”
Derogation does not prohibit deaths resulting from lawful acts of war:
Observance of:
Combatant status required for killing
Principle of distinction
Principle of proportionality
No war crimes
No grave breaches

19. European Court of Human Rights on Art.2:
Isayeva v. Russia (2005):
Violation of article 2 because: “The Court considers that using this kind of weapon in a populated area, outside wartime and without prior evacuation of civilians, is impossible to reconcile with the degree of caution expected from a law-enforcement body in a democratic society. No martial law and no state of emergency has been declared in Chechnya, and no derogation has been made under Article 15..”

20. Non-derogable rights (cont.)
Art.15 (2) No derogation…or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision.
- Art.3: Prohibition against torture and inhuman and degrading treatment and punishment
- Art.4 (1): Prohibition against slavery
- Art. 7: Prohibition against retroactive or non-existent legislation as basis for punishment

21. Article 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.
2. No derogation from articles 6, 7, 8 (paragraphs I and 2),
11, 15, 16 and 18 may be made under this provision.
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.

22. Derogation measures must not discriminate
Article 4, ICCPR .…..provided that such measures …. do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.
Discrimination grounds in article 2 and 26 of the ICCPR: race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status

23. Implicitly permitted to take derogation measures which discriminates on the basis of
political or other opinion, national origin, property, birth or other status,
But: only provided that such measures are “strictly required by the exigencies of the situation”

24. More non-derogable rights under Art.4 of ICCPR
2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision.
Art.6: Right to life
Art.7: Torture and inhuman and degrading treatment
Art.8: Slavery
Art.11: Debt prison
Art.15: Non-existent of retroactive legislation
Art.16: Right to be recognised as a person before the law
Art.18: The freedom of religion

25. Examples of situations which led to derogation:
The military coup in Greece in 1967
The situation in Northern Ireland
The situation in parts of Turkey
The situation in Israel/occupied territories
The attack on the US 11 Sept. 2001

26. International “case law” on derogation (examples)
European Court of Human Rights:
Lawless v. Ireland (1960)
Ireland v. United Kingdom (1978)
Brannigan and McBride v.UK (1993)
Aksoy v.Turkey (1996)
The Human Rights Committee:
Landinelli v.Uruguay (1978)
Salgar de Montejo v. Colombia (1979)

27. Where do human rights apply?
Each state must ensure its human rights obligations
Not all states have agreed to take on all human rights obligations
Human rights for individuals correspond with human rights obligations of the relevant state
But: core human rights are customary law

28. Geographical application
IHL: applicable wherever a State Party (or other parties) to the conflict may be operating – when the situation qualifies as armed conflict
Human Rights: applicable to persons under the State’s territory and/or jurisdiction - in all situations (as a point of departure)

29. Scope of application of human rights treaties:
Art.1, ECHR: The High Contracting parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention.
Art. 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…

30. Human Rights Committee: General Comment No.31 (80) 2004
10. States Parties are required by article 2, paragraph 1, to respect and to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction. This means that a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party.

31. The European Court of Human Rights (on “jurisdiction”):
Art.1, ECHR: The High Contracting parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention.
No dispute: jurisdiction can imply responsibility both inside and outside the territory of a State party

32. Jurisdiction: The power of the State:
- internally (at the national level)
externally (in relations with other states)
Jurisdiction reflects state sovereignty and equality of states - the basic principles of international law

33. Jurisdiction: Common understanding of jurisdiction:
Legislative power (prescriptive jurisdiction)
Judicial power (court jurisdiction)
Executive power (enforcement jurisdiction)
ECHR: Autonomous interpretation: jurisdiction is closely linked to a state’s ability to secure (or violate) human rights (including, to a certain extent, abroad)

34. Extraterritorial human rights responsibility (jurisdiction) under the ECHR
Loizidou v. Turkey (1996)
Bankovic (2001)
Ôchalan (2005)
Ilascu v. Moldova and Russia (2004)
Issa et al v. Turkey (2004)
Saramati (2007)

35. Extraterritorial human rights responsibility in Peace Operations: (Saramati case)
Complaint from person detained in Kosovo against i.a. Norway and France - alleged violation of article 5
Could derogate in ones’ own territory, but not abroad?

36. Human rights and peace operations
UK: Al-Skeini (House of Lords – back to High Court)
UK: Al-Jeddah (House of Lords - 29 October):
Not a protected person under GC IV (art.4)
SCR 1546 (2004) v. art. 55 and 56 of the UN Charter
Art. 103: SC can override Human Rights except when they constitute jus cogens
Art.103: SC can override IHL (art. 78, GC IV)

37. Is there a gap between IHL and HRL?
Is there a situation where only non-derogable rights are applicable - and Common Article 3 is not?

38. De facto situations
Applicable IHL
Applicable HR law
Examples
1. International armed conflict
(& colonial wars etc.)
The four Geneva conventions of 1949 & the first additional protocol of 1977
Non-derogable (applicable)
human rights
Tadic-case (ICTY)
2. Non-international armed conflict
between the state and organized group with territorial control
The second additional protocol of 1977
Spain
Colombia 2004?
3. Non-international armed conflict
between the state and groups or between groups
Common Article 3 to the four Geneva conventions
Lebanon 1980s?
Somalia?
Iraq 2005?
4.Disturbances
Riots/Unrest
Disasters
Others causes for state of emergency
Iraq 2006?
UK/US post 9/11
France 2005?
5. Peace
All International (applicable)

39. Point of departure: HR law is always applicable
The relationship between human rights and humanitarian law in situations where both regimes apply:
Point of departure: HR law is always applicable
But: the principle of lex specialis applies
Advisory Opinion – Nuclear weapons (ICJ)
Advisory opinion - Wall in occupied Palestine territories (ICJ)
General Comment of Article 2 (Jurisdiction) (HR Committee)

40. Minimum protection: All human rights which are Common Art.3 (if NIAC)
Non-derogable and not derogated from
And:
Article 75 AP I (if IAC)
Common Art.3 (if NIAC)