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Non-Application of Civil and Political Rights Treaties Extraterritorially During Times of International Armed Conflict

Abstract

Do the protections provided by the core international human rights treaties apply extraterritorially, outside the government-governed relationship, during periods of armed conflict and military occupation? The traditional view has been that human rights are essentially applicable in peacetime while humanitarian law (i.e. the law of war) governs situations of armed conflict and military occupation. More recently, a conflicting school of thought, reflected in decisions of the ICJ and the UN treaty bodies, has concluded that the law of war no longer automatically excludes the law of peace. But, while these views are entitled to respect, the international human rights instruments (unlike the regional human rights instruments) do not grant the treaty bodies or any other entity the authority to issue legally binding views on the nature of state obligations under the treaties. Applying the standard rules for treaty interpretation leads to the conclusion that the international human rights treaties apply in the context of armed conflict only with respect to acts of a state's armed forces executed within its own territory.

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1 Pictet Jean, Humanitarian Law And Protection of War Victims 15 (1975); see also Draper G. I. A. D., Humanitarian Law and Human Rights, 1979 Acta Juridica 193, 205; Meyrowitz Henri, Le Droit de la guerre et les droits de l'homme, 88 Revue de Droit Public aet de la Science Politique en France et à L'Etrange R 1095, 1105 (1972).

2 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226 (July 8), at para. 25 [hereinafter Nuclear Weapons case].

3 International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR].

4 International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S. 3 [hereinafter ICESCR].

5 Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S.3 [hereinafter CROC].

6 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I. C. J. (July 9), at paras. 134, 137 [hereinafter Wall case].

7 Case Concerning Armed Activities on the Territory of the Congo (DRC v. Uganda), 2005 I.C.J. 116, para. 119(Dec. 19) [hereinafter DRCv. Uganda]. For the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, May 25, 2000, see 54 U.N. GAOR Supp. (No. 49) at 7.

8 Nuclear Weapons case, supra note 2, at para. 34.

9 Wall case, supra note 6, at para. 106; DRC v. Uganda, supra note 7, at para. 318.

10 Schindler Dietrich, Human Rights and Humanitarian Law: Interrelationships of the Laws, 31 Am. U. L. Rev. 935, 940–42 (1982); see also Greenwood Christopher, Rights at the Frontier—Protecting the Individual in Time of War, in Law at the Centre: The Institute of Advanced Legal Studies at Fifty 277, 283–93 (1999); Meron Theodor, The Humanization of Humanitarian Law, 94 Am. J. Int'l L. 239, 240–41 (2000).

11 See Jakob Kellenberger, Official Statement of ICRC: Protection through Complementarity of the Law (Sept. 6, 2003), available at http://www.icrc.org/web/eng/siteeng0.nsf/html/5RFGAZ (last visited June 12, 2007). Some scholars suggest that the matter has been definitively resolved in favor of the application of human rights treaties extraterritorially during times of armed conflict. See, e.g., Ben-Naftali Orna & Shany Yuval, Living in Denial: The Application of Human Rights in the Occupied Territories, 37 Isr. L. Rev. 17 (2003).

12 The two bodies of law may overlap in domestic armed conflict with respect to noncombatants, since common Article 3 of the four Geneva Conventions and Additional Protocol II of 1977 apply to a state's own nationals, as do the international human rights treaties. See Greenwood, supra note 10, at 288–91; Schindler, supra note 10, at 939. For the relevant instruments of international humanitarian law, see Geneva Convention (I) relative to the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 75 U.N.T.S. 31, 6 U.S.T. 3114; Geneva Convention (II) relative to the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 75 U.N.T.S. 85, 6 U.S.T. 3217; Geneva Convention (III) relative to the Treatment of Prisoners of War, Aug. 12, 1949, 75 U.N.T.S. 135, 6 U.S.T. 3316; Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 75 U.N.T.S. 287, 6 U.S.T. 3516 [hereinafter the Fourth Geneva Convention]; Protocol Additional to the Geneva Conventions of 12 August 1949, relating to the Protection of Victims of International Armed Conflicts, Dec. 12, 1977, 1125 U.N.T.S. 3 [hereinafter Protocol I]; Protocol Additional to the Geneva Conventions of 12 August 1949, relating to the Protection of Victims of Non-International Armed Conflicts, Dec. 12, 1977, 1125 U.N.T.S. 609 [hereinafter Protocol II].

13 See Article 38 (paragraphs 2-3) of the CROC, supra note 5, and Articles 1,2, and 3 (paragraphs 3-5) of the Optional Protocol on the Involvement of Children in Armed Conflict, supra note 7, which obligate states parties to set minimum ages for compulsory or voluntary recruitment and for direct participation in hostilities for members of the national armed forces of the state. See generally Dennis Michael, New Protocols to the Convention on the Rights of the Child, 94 Am. J. Int'l L. 789 (2000).

14 CHR Res. 2003/84 (Apr. 25, 2003) (emphasis added M.J.D.). Earlier, during Iraq's occupation of Kuwait in 1991, the Commission on Human Rights broadly:

condemn[ed] the Iraqi authorities and occupying forces for their grave violations of human rights against the Kuwaiti people and nationals of other States and in particular the acts of torture, arbitrary arrests, summary executions and disappearances in violation of the Charter of the United Nations, the International Covenants on Human Rights, and other relevant legal instruments.

CHR Res. 1991/67 (Mar. 6,1991)(emphasis added M.J.D.); accord GA Res. 45/170, ¶ 1 (Dec. 18, 1990). The Commission was apparently influenced by Iraq's annexation of Kuwait. The Security Council, however, declared the annexation null and void and only reaffirmed Iraq's responsibility under international humanitarian law, including the Fourth Geneva Convention. See SC Res. 666 (Sept. 13,1990); SC Res. 674 (Oct. 29,1990). For the Hague Regulations of 1907 see Convention (IV) Respecting the Laws and Customs of War on Land and its Annex: Regulations Concerning the Laws and Customs of War on Land, Oct. 18, 1907, U.S.T.S. 539.

15 SC Res. 1483 (May 22, 2003).

16 SC Res. 1511 (Oct. 16, 2003); SC Res. 1546 (June 8, 2004). In SC Res. 1637 (Nov. 11, 2005) and SC Res. 1723 (Nov. 28, 2006), the Security Council, acting under Chapter VII, extended the mandate of the MNF in Iraq.

17 Concluding Observations: United States, ¶ 10, UN Doc. CPR/C/USA/C)/3 (Dec. 18, 2006), available at http://www.ohchr.org/english/bodies/hrc/hrcs87.htm (last visited June 12, 2007).

18 Id.

19 Statement of John B. Bellinger, III, July 28, 2006, available at http://geneva.usmission.gov/Press2006/0728ICCPR.html (last visited June 12, 2007).

20 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85 [hereinafter CAT].

21 Conclusions and Recommendations of the Committee Against Torture: United Kingdom, ¶ 4 (b), UN Doc. CAT/C/CR/33/3 (Dec. 10, 2004).

22 Id. (Emphasis added M.J.D.).

23 Statement of Martin Howard (UK) to the Committee Against Torture, para. 92 (2004), available at http://www.ohchr.org/english/bodies/cat/docs/UKopening.pdf (last visited June 12, 2007).

24 Al-Skeini v. Sec. of State for Defence [2004] EWHC 2911 (Admin.) [hereinafter Al-Skeini (HC)] see especially para. 103; see also Comments by the Government of the United Kingdom of Great Britain and Northern Ireland to the conclusions and recommendations of the Committee against Torture, ¶ 15, UN Doc. CAT/C/GBR/CO/4/ADD. 1 (June 8,2006)(“The UK does not consider that Article 2 requires it to ensure that acts of torture are not committed by persons who are not subject to UK laws, as such an interpretation would be impossible to implement.”).

25 Cf. Whiteman Majorie M., 14 Digest Int'l L. 361 (1970) (quoting Research in International Law (Harvard Law School), Draft Convention on the Law of Treaties, Art. 19, Comment, 29 Am. J. Int'L. Supp. 937, 975–76 (1935).

26 During the 2006 Human Rights Committee review of the periodic report of the United States, one of the Committee members, Walter Kalin, “agreed that there was no binding procedure for determining the correct interpretation” of Covenant rights. He asserted, however, that “the Committee was mandated by article 40 to make general comments on the Covenant, so that its findings, though not legally binding, had considerable authoritative status.” ¶ 57, UN Doc. CCPR/C/SR.2380 (July 18, 2006). Robert Harris, the Assistant Legal Adviser of the Department of State, stated that the United States does “not accept as a legal matter the proposition that the obligations of a State Party would be affected or modified by non-binding general comments. …’ Statement of Robert Harris, Assistant Legal Adviser, Department of State (July 18, 2006), available at http://www.usmission.ch/Press2006/0718iccprResponse.html (last visited June 12, 2007). In this regard, Article 40(4) of the ICCPR only gives the Committee the authority to “study the reports submitted by the States Parties” and “transmit its reports, and such general comments as it may consider appropriate, to the States Parties.” Additionally, as discussed infra note 103, unlike the situation with respect to the regional human rights instruments, the views of the Human Rights Committee with respect to individual complaints under the First Optional Protocol to the ICCPR, Dec. 16, 1966, 999 U.N.T.S. 302, are not considered to be legally binding. Moreover, 51 out of the 160 states parties to the ICCPR, including the United States, have not ratified the First Optional Protocol.

27 ¶ 33, UN Doc. CAT/C/SR.480 (May 21, 2001)(statement of Committee member Andreas Mavrommatis).

28 At its 1954 session, the Commission on Human Rights sent to the General Assembly a draft text that would have permitted ICJ review of both state party complaints and disputes arising out of the interpretation or application of the Covenant in a matter within the competence of the Committee. Report of the Commission on Human Rights on Its Tenth Session, UN ESCOR 1954, Supp. No. 7, Annex 1B, Arts. 29-30, 44, 46-47. Nowak explains that “[b]y and large, the HR Comm draft corresponded to the procedure set forth in Art. 24 of the ECHR in force at the time; the Committee would have been endowed with the fact finding, mediation and expert role exercised by the European Commission of Human Rights, and the ICJ would have had the judicial decision making function of the European Court of Human Rights.” Nowak Manfred, U.N. Covenant on Civil and Political Rights, CCPR Commentary 762 (2005).

29 During the Human Rights Committee review of the periodic report of the United States, Walter Kalin, further stated, supra note 26, at para. 57, that ‘although the Judgment in the case concerning Armed Activities in the Territory of the Congo (Democratic Republic of the Congo v. Uganda) was binding only on the parties it set an important precedent and was not merely an expression of opinion.’ This means that the opinion is not legally binding on third parties.

30 CAT, supra note 20.

31 Human Rights Committee Concluding Observations: United States, supra note 17, at para. 10.

32 European Convention on the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 221.

33 The Inter-American Commission on Human Rights has issued several decisions concerning the extraterritorial application of the American Declaration of the Rights and Duties of Man during periods of armed conflict. But, that instrument contains no scope of application clause and in all events, the Declaration has not been viewed by states as binding. See notes 66 and 123-124 and accompanying text infra.

34 The review focuses primarily upon civil and political rights and not specifically on economic, social, and cultural rights. The ICJ's decision in the Wall case that Israel violated various economic, social, and cultural rights contained in the ICESCR and the CROC in the West Bank and Gaza is difficult to comprehend. As Justice Higgins observed in her separate opinion with regard to economic, social, and cultural rights: “the situation is even stranger, given the programmatic requirements of the fulfillment of this category of rights. The Court has been able to do no more than observe, in a single phrase, that the wall and its associated regime ‘impede the persons concerned of the right to work, to health, to education, and to an adequate standard of living …’” Wall case supra note 6, Separate Opinion of Judge Higgins, 43 ILM at 1058, para. 27 (quoting Advisory Opinion, at para. 134). For a more complete discussion of the question of whether economic, social, and cultural rights apply extraterritorially during period of armed conflict and military occupation, see Dennis Michael, Application of Human Rights Treaties Extraterritorially, 99 Am. J. Int'l L. 127-29, 131-32, & 139–41 (2005).

35 Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, arts. 31-32, 1155 U.N.T.S. 331. While the U.S. is not a party to this Convention, the principles for treaty interpretation are recognized as part of customary international law.

36 Article 2(1) of the ICCPR, supra note 3.

37 Examples of individuals within the territory of a state but not subject to its jurisdiction include foreign diplomats or other persons or entities under special immunity. On the other hand, individuals subject to the jurisdiction of a state but not within its territory might include enemy aliens under the authority of occupation forces, as discussed below.

38 Some of the international human rights instruments contain a similar scope of application provision. For example, Article 2 of the CROC specifies that “States Parties shall respect and ensure the rights set forth in the … Convention to each child within their jurisdiction.” A detailed analysis of the ordinary meaning of the scope of application of each of these instruments and their relevant preparatory work is beyond the scope of this article. However, it would appear that these instruments were not intended to apply extraterritorially during periods of armed conflict and military occupation. In this regard, Article 38 of the CROC specifies that states undertake “to respect and to ensure respect for rules of international humanitarian law applicable to them in armed conflicts which are relevant to the child” and “[i]n accordance with their obligations under international humanitarian law to protect the civilian population in armed conflicts.” As one commentator has observed with respect to the application of the CROC during periods of armed conflict, “[I]f all other articles on the protection and care of children apply at all times, the necessity for this paragraph [Article 38(4)] may be doubted.” Cohn Ilene, The Convention on the Rights of the Child: What It Means for Children in War, 3 Int'l J. Refugee L. 100, 105 (1991). Moreover, an analysis of he negotiating record demonstrates that the scope of application clause was drawn from Article 1 of the ECHR and was intended to cover extraterritorial acts in certain exceptional circumstances, such as those involving diplomats' children. During the 1989 working group session of the Commission on Human Rights, a drafting group proposed that the provision read “to each child in their territories and subject to their jurisdiction,” which would be consistent with Article 2 of the ICCPR. Report of the Working Group on a Draft Convention on the Rights of the Child, ¶ 147 & 157, UN Doc. E/CN.4/1989/48 (March 2, 1989). Responding to the Polish representative's question about the applicability to diplomats' children, id at ¶ 160, the observer for Finland “proposed, in order to cover every possible situation, the deletion of the reference to territories and keep [sic] only the reference to jurisdiction, such as in the European Convention,” id. at para. 162. On that basis, the text of Article 2 was amended to read “to each child within their jurisdiction,” and was adopted in this form without further discussion of the matter. Id. at para. 169. In the Wall case, without any analysis of the Convention or its negotiating history, the ICJ summarily concluded that the “Convention is therefore applicable within the Occupied Palestinian Territory.” Wall case, supra note 6, at para. 113.

39 See, e.g., Schwelb Egon, Some Aspects of the International Covenants on Human Rights of December 1966, in International Protection of Human Rights 103, 109 (Eide Asbjørn & Schou August eds., 1968); Nowak Manfred, The Effectiveness of the International Covenant on Civil and Political Rights—Stocktaking After the First Eleven Sessions of the UN-Human Rights Committee, 1 Hum. Rts. L.J. 136, 156 (1980).

40 See, e.g., Bothe Michael, Partsch Karl Josef, & Solf Waldemar A., New Rules for Victims of Armed Conflicts 635 (1982); Schindler, supra note 10, at 939.

41 See generally Nowak, supra note 28, at 43–44 (pointing out that the Committee “depart[ed] from the earlier views in the literature which adhered to a literal reading of Article 2(l)” and ‘sought to correct the wording of this provision” in these cases; id. at 44).

42 López Burgos v. Uruguay, Communication [Comm.] No. 52/1979, UN Doc. CCPR/C/13/D/52/1979 (1981); Celiberti de Casariego v. Uruguay, Comm. No. 56/1979, UN Doc. CCPR/C/13/D/56/1979(1981).

43 Burgos v. Uruguay, and Celiberti v. Uruguay, supra note 42, appendix (emphasis added M.J.D.); accord Nowak, supra note 28, at 44 n. 85.

44 Human Rights Committee, General Comment No. 31 [80]: Article 2 of the Covenant: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, ¶ 10, UN Doc. CCPR/C/74/CRP.4/Rev.6 (2004) [hereinafter General Comment No. 31].

43 Buergenthal Thomas, To Respect and to Ensure: State Obligations and Permissible Derogations, in The International Bill of Human Rights 72, 74 (Henkin Louis ed., 1981); Meron Theodor, Extraterritoriality of Human Rights Treaties, 89 Am. J. Int'l L. 78, 79 (1995); McGoldrick Dominic, Extraterritorial Application of the International Covenant on Civil and Political Rights, in Extraterritorial Application of Human Rights Treaties 41, 47–49 (Coomans F. & Kamminga M.T. eds., 2004); Martin Scheinin, Extraterritorial Effect of the International Covenant on Civil and Political Rights, in Extraterritorial Application of Human Rights Treaties, id. at 73, 75–77; Ben Naftali & Shany, supra note 11, at 34.

46 Nowak, supra note 28, at 43 n.78. Nowak does suggest (contrary to Tomuschat) that the Covenant could apply with regard to “actions by occupation forces in accordance with the rules of the law of war.” Id. at 44; see also Joseph Sarah, Schultz Jenny, & Castan Melissa, The International Covenant on Civil and Political Rights 8891 (2nd ed. 2004).

47 In its concluding observations concerning Israel, the Human Rights Committee further explained its cause-and-effect theory of application as follows:

in the current circumstances, the provisions of the Covenant apply to the benefit of the population of the Occupied Territories, for all conduct by the State party's authorities or agents in those territories that affect the enjoyment of rights enshrined in the Covenant and fall within the ambit of State responsibility of Israel under the principles of public international law.

¶ 11, UN Doc. CCPR/CO/78/ISR (Aug. 21, 2003)(emphasis added M.J.D.), available at http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CCPR.CO.78.ISR.En?Opendocument (last visited July 4, 2007).

48 Wall case, supra note 6, at para. 111.

49 Id. at para. 109. The Court also cited Montero v. Uruguay, Comm. No. 106/1981, UN Doc. CCPR/C/OP/2, at 136 (1983/1990). Montero involved the confiscation of a passport of a Uruguayan citizen by the Uruguayan consulate in Germany.

50 Wall case, supra note 6, at para. 110 (emphasis added M.J.D.)(quoting ¶10, UN Doc. CCPR/C/79/Add.93(1998)).

51 The Court also mentions ICCPR Article 17(1). (“No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.”) The Court did not specifically find that Israel had violated this provision. Wall case, supra note 6, at para. 134.

52 The Court similarly relied on the fact “that the territories occupied by Israel have for over 37 years been subject to its territorial jurisdiction as the occupying Power, in concluding that Israel was bound by the provisions of the ICESCR in the West Bank and Gaza,” Id. at para. 112 (emphasis added M.J.D.).

53 DRC v. Uganda, supra note 7, at para. 216 (emphasis added M.J.D.).

54 Id. at para. 178.

55 Id. at para. 180.

56 Id. at para. 179.

57 Id. at para. 345(3) (emphasis added M.J.D.). Without further explanation the Court stated that:

Uganda also violated the following provisions of the international humanitarian law and international human rights law instruments, to which both Uganda and the DRC are parties: Fourth Geneva Convention, Articles 27 and 32 as well as Article 53 with regard to obligations of an occupying Power; International Covenant on Civil and Political Rights, Articles 6, paragraph 1, and 7; First Protocol Additional to the Geneva Conventions of 12 August 1949, Articles 48, 51, 52, 57, 58 and 75, paragraphs 1 and 2; African Charter on Human and Peoples' Rights, Articles 4 and 5; Convention on the Rights of the Child, Article 38, paragraphs 2 and 3; Optional Protocol to the Convention on the Rights of the Child, Articles 1, 2, 3, paragraph 3, 4, 5 and 6.

Id. at para. 119.

58 Banković v. Belgium, 2001–XI1 Eur. Ct. H.R. 333 (GC).

59 Id. at para. 37.

60 See Loizidou v. Turkey, 310 Eur. Ct. H.R. (ser A.) (1995) (Preliminary Objections); Loizidou v. Turkey. 1996–VI Eur. Ct. H.R. 2216, 2234–35 (GC)(Merits), at para. 52; Cyprus v. Turkey, 2001–IVEur. Ct. H.R. 1 (GC).

61 Banković v. Belgium, supra note 58, at para. 80; accord Ilaşcu v. Moldova and Russia, 2004-VII Eur. Ct. of H.R. (GC), at paras. 434, 442, 453, 464, 481. (Russia responsible for ECHR violations in Transnestria after both Moldova and Russia became parties to ECHR).

62 Banković v. Belgium, supra note 58, at para. 75.

63 Id. at para. 75.

64 Id. Article 1 of each of these Conventions requires the Contracting Parties to undertake “to respect and to ensure respect for the present Convention in all circumstances.”

65 Banković v. Belgium, supra note 58, at para. 70-71. The Court explained that “since Turkey had such ‘effective control’ its responsibility could not be confined to the acts of its own agents therein but was engaged by the acts of the local administration which survived by virtue of Turkish support” and that under Article 1 of the ECHR it was obligated to secure “the entire range of substantive Convention rights in northern Cyprus.” Accord Ilascu v. Moldova and Russia, supra note 61, at para. 316.

66 Issa v. Turkey, 41 Eur. Ct. H.R. 27, 71 (2004), at paras. 86-96. The chamber also cited a decision of the Inter-American Commission in Coard v. the United States of America, Case 10.951, Inter-Am. C.H.R., OEA/ser.L/V/II.106.doc.3rev (1999), involving the American Declaration on the Rights and Duties of Man of 1948. However, as the Grand Chamber earlier noted in Banković v. Belgium, supra note 58, at para. 78, “Article 2 of the American Declaration on the Rights and Duties of Man 1948 referred to in the above-cited Coard Report… contains no explicit limitation of jurisdiction” and the issue of the scope of application of the Declaration was not before the Commission. The United States instead argued in Coard that the Commission lacked specialized expertise to apply the international humanitarian law that was in issue, that the principles of international humanitarian law displaced the application of the Declaration, and that in all events the Declaration was nonbinding.

67 Al-Skeini v. Sec. of State for Defence [2007] UKHL 26, [2007] 3 All E.R. 865 [hereinafter Al-Skeini (HL)]; Four members of the Lords of Appeal (Lord Rodger, Baroness Hales, Lord Carswell, and Lord Brown) found that the UK Human Rights Act of 1998 applied to acts of the United Kingdom armed forces outside its territory only where the victim was within the jurisdiction of the UK for purposes of Article 1 of the European Convention. One member of the Lords of Appeal (Lord Bingham) was of the view that the 1998 Act did not apply to acts committed outside the UK and expressed no opinion whether a claim might lie under the European Convention. The British government did not challenge the finding of a lower court that the case of an individual who had been arrested by British forces on charges of terrorism and not as a “prisoner of war,” falls within a narrowly limited exception [for jurisdiction under Article 1 of the European Convention] exemplified by embassies, consulates, vessels and aircraft, and in the case of Hess v. United Kingdom, a prison.” See Al-Skeini (HC), supra note 24, at paras. 286-87.

68 Id. at para. 131 (Opinion of Lord Brown). In Issa the European Court found that the applicants had failed to prove that Turkish troops were in the area in question. The European Court in Banković earlier noted that the claim in Issa had been found admissible (in an unreported decision which predated Bankovic) after no issue of jurisdiction had been raised. Banković v. Belgium, supra note 58, at para. 81.

69 Id. at para. 74 (Opinion of Lord Rodger). The Court noted that “it was not the idea that the Convention would apply extra-territorially in cases which resembled” López Burgos and Celibert, but “[r]ather, it was the weight which the European Court appears to have attached to the particular basis on which the Human Rights Commission considered that it had jurisdiction.” The Court quoted with approval the reasoning of Christian Tomuschat in his individual opinions that “article 5 of the ICCPR could not be used to extend the jurisdiction of the Covenant [since] it was simply designed to prevent any rules of the Covenant being used to justify actions run counter to its purposes and. general spirit.” It further observed that while “article 5 of the Covenant [was]broadly similar to article 17 of the European Convention” the European Court in Issa “[n]otably and surely correctly … did not justify its approach by reference to Article 17.“ Id. at paras. 74-75 (Opinion of Lord Rodgers).

70 Id. at para. 82.

71 Id. at para. 83.

72 Id. at para. 129.

73 States in Banković made similar arguments in arguing against a cause-and-effect notion of jurisdiction under the ECHR. Banković v. Belgium, supra note 58, at para. 43.

74 See General Comment No. 31, supra note 44, at para. 8, where the Committee further stated that “failure to ensure Covenant rights as required by article 2 would give rise to violations by States Parties of those rights, as a result of States Parties' permitting or failing to take appropriate measures or to exercise due diligence to prevent, punish, investigate or redress the harm caused by such acts by private persons or entities.”

75 In General Comment No. 31, id. at para. 16, the Committee also observed that “Article 2, paragraph 3, requires that States Parties make reparation to individuals whose Covenant rights have been violated.”

76 The Committee stated in its 1998 concluding observations concerning Israel that it “was deeply concerned that Israel denies its responsibility to fully apply the Covenant rights in the occupied territories” and that “the Covenant must be held applicable to the occupied territories and those areas of southern Lebanon and West Bekaa where Israel exercises effective control.” Human Rights Committee Concluding Observations: Israel, supra note 47, at ¶ 10. See also, Human Rights Committee Concluding Observations: United States, supra note 17, at ¶ 10 (stating that the U.S. has the responsibility to “ensure the full range of covenant rights” to individuals under its jurisdiction and outside it territory during periods of armed conflict.

As discussed above, supra notes 50-52, and accompanying text, in the Wall case the ICJ cited with approval the 1998 concluding observations of the Human Rights Committee concerning Israel, in concluding that the territories occupied by Israel had been subject to its territorial jurisdiction as the occupying power. The ICJ also found that since Israel only derogated from the provisions of Article 9 of the ICCPR, “[t]he other articles of the Covenant therefore remain applicable not only in Israeli territory, but also on the Occupied Palestinian Territory.” Wall case, supra note 6, at para. 127.

77 For example, Article 2(2) of the ICCPR mandates that states parties “adopt such legislative or other measures as may be necessary to give effect to the rights” recognized in the Covenant whenever such measures do not already exist in their laws. Under Article 2(3), each state party undertakes to “[e]nsure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy.”

78 See Nowak, supra note 28, at 810. Article 50 of the ICCPR specifically mandates that “[t]he provisions of the present Covenant shall extend to all parts of federal States without any limitations or exceptions.

79 International Labour Conference, Record of Proceedings, 63d Sess., at 710 (1977)(statement of Iraqi representative on behalf of all Arab delegations). Ultimately, the entire report of the ILO Committee on the Application of Conventions was rejected at the sixty-third session because of its consideration of the report of Israel on the implementation of ILO Convention No. 111. Id. at 726-27.

80 In 1980 member states of the ILO adopted a resolution calling for the director-general to report annually on the labor situation in the territories. International Labour Conference, Record of Proceedings, 66th Sess., at xxxviii–xxxix (1980). The ILO itself has concluded that the West Bank is not “within its jurisdiction” for purposes of complaints lodged against Israel under Article 24 of the ILO Constitution concerning nonobservance of ILO conventions. For example, the officers rejected a complaint against Israel by several trade unions in the West Bank alleging noncompliance with ILO Convention No. 87, concerning Freedom of Association and Protection of the Right to Organize. The officers' report, which was based on an opinion of the ILO legal adviser and subsequently endorsed by the Governing Body, stated in part that “the occupation by Israel of Arab territories in 1967 cannot be considered as having extended to the occupied territories Israel's obligations under Conventions it has ratified.” ILO Doc. GB.233/16/30, 233d Sess., para. 7 (1986); see also Minutes of the Fifth Sitting of the Governing Body, ILO Doc. GB.233 (1986).

81 Tomuschat Christian, Human Rights: Between Idealism and Realism 110 (2003).

82 Tomuschat, id. at 110. He further suggests, however, that it might be possible to disregard a literal interpretation of Article 2(1) of the ICCPR in situations of long-term occupation. Cf., McGoldrick, supra note 45, at 64–65. However, none of the Committee's earlier views suggest, even in dictum, that the longstanding allied occupation of Germany and later Berlin should have been governed by the treaty obligations under the ICCPR of the Allies, i.e., France, the U.K., and the United States. See also Part V infra, for a discussion of the obligation of the occupant under the Hague Regulations of 1907 to respect local laws unless absolutely prevented.

83 Wall case, supra note 6, at para. 109.

84 UN Doc. E/CN.4/365, at 14 (1950)(U.S. proposal). The U.S. amendment added the words “territory and subject to its” before “jurisdiction” in Article 2(1).

85 UN Doc. E/CN.4/SR.193, at 13, 18 (1950); UN Doc. E/CN.4/SR. 194, at 5, 9 (1950)(statements of Eleanor Roosevelt).

86 Id.

87 UN Doc. E/CN.4/SR.193, at 21 (1950)(Cassin); UN Doc. E/CN.4/SR.194 at 5 (1950)(Kryou). Cassin proposed that the U.S. amendment be revised in the French text, replacing “et” with “ou,” so that states would not “lose their jurisdiction over their foreign citizens.” See also Joseph Nisot, Belgium, UN Doc. E/CN.4/SR.194, at 6-7 (1950)(proposing that the Covenant apply “to all individuals within the limits of its jurisdiction”); Branko Jevremovic, Yugoslavia, id. at 6-7, (objecting to inclusion of a reference to territory since “the word ‘jurisdiction’ amply covered all cases under article 2”).

88 UN Doc. E/CN.4/SR.194, at 7 (1950).

89 Id. Several states maintained that the United States position was the most sound and logical one and the only one that they could support. See Dr. Carlos Valenzuela, representative of Chile, Statement, id. at 6; E.N. Oribe, representative of Uruguay, Statement, id. at 8. Some commentators have suggested that a literal reading of the phrase “within its territory and subject to its jurisdiction” in Article 2 of the ICCPR would conflict with the object and purpose of certain provisions of the ICCPR, such as Article 12(4) concerning the right to enter one's own country. See, e.g., McGoldrick, supra note 45, at 41, 48. However, as Mrs. Roosevelt pointed out, the phrase “within its territory” was not intended to be read in an overly technical manner so as to preclude individuals waiting to enter a country on its frontier.

90 UN Doc. E/CN.4/SR.194, at 11 (1950).

91 UN Doc. E/CN.4/L.161 (1952)(French amendment); UN Doc. E/CN.4/SR.329, at 14 (1952)(vote rejecting amendment). France continued to call for deletion of “within its territory” because the “current text of paragraph 1 did not commit States in regard to their nationals abroad.” Id. at 13 (statement of P. Juvigny, representative of France).

92 UN Doc. A/C.3/SR.1259, (1963)(rejection of French and Chinese proposal to delete “within its territory”). France and several other states again maintained that the Covenant should guarantee rights to citizens abroad. See ¶ 30, UN Docs. A/C.3/SR. 1257–1258 (1963).

93 Schwelb, supra note 39, at 109.

94 Banković v. Belgium, supra note 58, at para. 63.

95 Id. at paras. 40–41.

96 Id. at para. 54.

97 Multilateral Treaties Deposited With the Secretary General, ch. 4.4, available at http://untreaty.un.org/ENGLISH/bible/englishinternetbible/partI/chapterIV/chapterIV.asp (last visited July 4, 2007).

98 Banković v. Belgium, supra note 58, at para. 62.

99 Id. The Court added that “existing derogations were lodged by Turkey and the United Kingdom in respect of certain internal conflicts (in south-east Turkey and Northern Ireland, respectively)….”

100 Statement of Conrad Harper, Legal Adviser, Department of State, ¶ 20, UN Doc. CCPR/C/SR.1405 (1995). The Human Rights Committee at that time only maintained that the ICCPR has extraterritorial reach “in special circumstances.” ¶ 284, UN Doc. CCPR/C/79/Add.50 (1995). The United States expressed the same view that the ICCPR did not have extraterritorial application in its second and third periodic report to the Human Rights Committee. U.S. Dep't of State, United States Second and Third Periodic Report Concerning the International Covenant on Civil and Political Rights (2005), available at http://www.state.gov/g/drl/rls/55504.htm (last visited June 12, 2007). See also notes 17-19 supra and accompanying text.

101 Concluding Observations of the Human Rights Committee: Netherlands, ¶ 27, UN Doc. CCPR/CO/72/NET (Aug. 27, 2001).

102 Replies of the Government of the Netherlands to the Concerns Expressed by the Human Rights Committee, ¶ 19UN Doc. CCPR/CO/72/NET/Add. 1 (2003). Bosnia ratified the ICCPR in 1992.

103 Unlike judgments of the European Court, the views of the Human Rights Committee under the Optional Protocol to the ICCPR are not considered to be legally binding. Article 5(4) of the Protocol gives the Committee only the authority to “forward its views to the State Party concerned and to the individual.” See generally Nowak, supra note 28 at 894 (“the individual communications procedure [in the first Optional Protocol to the ICCPR] differs from those under the ECHR and the ACHR or other procedures that lead to a binding judgment. Since the Committee's decisions are not binding, the [Optional Protocol] does not provide any measures analogous to those under Article 46 of the ECHR for example, for supervising their enforcement.”). Accord: Tomuschat Christian, Evolving Procedural Rules: The UN Human Rights Committee's First Years in Dealing with Individual Communications, 1 Hum. Rts. L.J. 249, 255 (1980).

104 Concluding Observations of the Human Rights Committee: Belgium, ¶ 6, UN Doc. CCPR/CO/81/BEL (Aug. 12, 2004) (emphasis added M.J.D.).

105 Id.

106 Banković v. Belgium, supra note 58, at para. 40. See also Dinstein Yoram, The Conduct of Hostilities Under the Law of International Armed Conflict 25 (2004) (Noting that even though the acts in Banković are the main thrust of international humanitarian law regulation, “when it comes to seeking remedies for failure to comply with the law (such as financial compensation), human rights law may offer effective channels of action to individuals, whereas no equivalent avenues are opened by international humanitarian law.”).

107 Banković v. Belgium, supra note 58, at para. 40. During the 2006 review of the United States periodic report, one member of the Human Rights Committee asserted that in “a peacekeeping mission … international humanitarian law no longer applied” and that “it would be very odd if no human rights protection was available under such circumstances and troops were free to behave as they wished.” Statement of Kalin, supra note 26, at para. 58. Nonetheless, troops in such situations are not free to engage in criminal acts or behave as they wish. Kalin appears to have confused individual criminal responsibility for such acts under state penal codes, with state responsibility to provide reparations to individuals for such acts.

108 Markovic v. Italy, App. no. 1398/03 (given Dec. 14,2005), at para. 76, available at http://cmiskp.echr.coe.int/tkpl97/view.asp?item=l&portal=hbkm&action=html&highlight=markovic&sessionid=1797450&skin=hudoc-en (last visited Aug. 15, 2006).

109 Id. at para. 76 (emphasis added M.J.D.). Italy also pointed out that there was not any legal basis for a right to reparation in the rules applicable to international customary law, or in Protocol No I Additional to the Geneva Conventions of 12 August 1949. Italy explained that “the intention was to create rights and obligations solely at the inter-State level and not to confer rights on individuals, even in cases involving an obligation to make reparation.” Id. at para. 75. It is not clear whether the Human Rights Committee was aware of the position of the Italian government in Markham v. Italy when it “welcome[d] the State party's position that the guarantees of the Covenant apply to the acts of Italian troops or police officers who are stationed abroad, whether in a context of peace or armed conflict.” Concluding Observations of the Human Rights Committee: Italy, ¶ 3, UN Doc. CCPR/C/ITA/Q/5 (Apr. 24; 2006).

110 Markovic v. Italy, supra note 108, at para. 87. The British government further noted that:

different legal systems formulated [the rule] in different ways (for example, as a rule that decisions in the conduct of foreign relations were not justiciable or that a general rule relating to liability did not extend to damage caused by acts of war or other actions taken by the State in the course of its international relations).”

Id.

111 Id. at para. 111. With regard to Article 6 of the ECHR, the Court found that the applicants “were afforded access to a cotTrt; however, it was limited in scope, as it did not enable them to secure a decision on the merits.” In 2002, the Italian Court of Cassation had dismissed the claim finding that the Italian Courts had no jurisdiction over acts of a political nature. Id. at para. 115.

112 See notes 23-24 supra and accompanying text.

113 Statement of John B. Bellinger, III, Legal Adviser, U.S. Department of State, May 5, 2005, available at http://www.usmission.ch/Press2006/0505BellingerOpenCAT.html (last visited April 24, 2007). Like the U.K., the United States also maintained that various provisions of the CAT did not have extraterritorial effect.

114 Id.

115 Id. Mr. Bellinger also stressed that “[t]he obligation to prevent cruel, inhuman, or degrading treatment or punishment is in Article 16 of the Convention and in similar provisions in the law of armed conflict.”

116 CHR, Report of the Working Group on a Draft Convention Against Torture, ¶ 5, UN Doc. E/CN.4/1984/72(Mar. 9, 1984).

117 Id.

118 Statement of Switzerland, UN Doc. A/39/499, at 14 (Oct. 2, 1984). Switzerland observed that the Convention “leaves intact the regime set up by the 1949 Geneva Conventions and their Additional Protocols.” At the outset of the negotiations, Switzerland pointed out that “human rights regulations and the law of armed conflict” are “two complementary systems but distinct legal systems … the characteristics of which vary according to the specific situation in which they are applied.” ¶ 55, UN Doc. E/CN.4/1314 (1978).

119 Statement of Norway, UN Doc. A/39/499, at 15 (Oct. 2, 1984)(“The U.S. statement seems relevant for international armed conflict” since “[f]or these kinds of armed conflicts, the Geneva Conventions and the First Additional Protocol established a system of universal jurisdiction and of implementation that must be considered equal to the system of the convention against torture.”).

120 Statement of Israel, General Assembly plenary (December 10, 1984) (explaining that it had joined the consensus on the understanding that the new Convention Against Torture would not supersede the 1949 Geneva Convention as regards their applicability to armed conflicts), reported in Bergers J. Herman & Danelius Han, The United Nations Convention Against Torture 106 (1988).

121 Conclusions and Recommendations of the Committee Against Torture: United States, ¶ 14, UN Doc. CAT/C/USA/CO/2 (July 25, 2006).

122 UN ESCOR Hum. Rts. Comm., Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, ¶ 29-30, UN Doc. E/CN.4/2005/103 (Feb. 7, 2005).

123 Id.

124 Decision on Request for Precautionary Measures, Mar. 12, 2002, 41 I.L.M. 532, 533 (2002). The European Commission on Human Rights also apparently concluded in its first interstate application in Cyprus v. Turkey that the Third Geneva Convention on prisoners of war takes precedence over the ECHR with respect to persons accorded prisoner-of-war status. App. Nos. 6780/74, 6950/75, 4 Eur. H.R. Rep. 482 (1982)(1976 Commission report); Frowein Jochen Abr., The Relationship Between Human Rights Regimes and Regimes of Belligerent Occupation, 28 Isr. Y.B. Hum. Rts. 1, 10 (1998). The Human Rights Committee appears to have taken a similar approach in its General Comment No. 31, supra note 44, at ¶ 11, where it stated that “in respect of certain Covenant rights, more specific rules of international humanitarian law may be specially relevant for the purposes of the interpretation of Covenant rights.” With respect to Israel, however, the Committee concluded that “the applicability of rules of humanitarian law does not, by itself, impede the application of the Covenant.” Concluding Observations of the Human Rights Committee: Israel, supra note 47, at ¶ 10.

125 Fact Sheet No. 26, The Working Group on Arbitrary Detention, Annex IV, available at http://www.ohchr.org/english/about/publications/docs/fs26.htm#A4 (last visited April 24, 2007).

126 Nuclear Weapons case, supra note 2, at paras. 25, 34.

127 Wall case, supra note 6, at para. 106; DRC v. Uganda, supra note 7, at para. 216.

128 The Court's reasoning in these cases concerning the relationship between human rights and international humanitarian law is further discussed infra in Parts IV and V.

129 Third report on the effects of armed conflicts on treaties, UN Doc. A/CN.4/578, ¶ 29 (2007).

130 One likely issue concerning the new draft article is whether all standard setting treaties continue to apply during armed conflict. In this regard, the ILO has long held the view that belligerents may suspend fulfillment of obligations assumed under the various ILO conventions, some of which contain the same rights, as are set forth in the ICCPR, ICESCR, and the CROC. In 1945 the International Labour Office advised the Governing Body on the principles governing the effect of war on treaty obligations as follows:

In the case of multipartite instruments laying down rules which are legislative in character, there is a strong presumption that… the obligations resulting from the instrument will in certain cases be in suspense as between opposing belligerents for the duration of the war, and in relation to co-belligerents and neutrals a belligerent will be excused for the duration of the war from the performance of such of its obligations under the instrument as are incompatible with its position as a belligerent or as it is prevented from performing by force majeure.

ILO, Report of the Acting Director, Minutes of the 95th Session of the Governing Body, app. XI, Annex A, at 165 (1945); see also 1 ILO, The International Labour Code 1951, Explanatory Note, at XCVI (quoting statement in text). For the ILO's treatment of the suspension of ILO treaties during periods of public emergency, see Report of the Committee of Experts on the Application of Conventions and Recommendations, International Labour Conference, 69th Sess., Vol. B, Rep. III (Part 4B), paras. 71–73 (1983); Fitzparick Joan, Human Rights in Crisis 106–12 (1994); Landy E. A., The Effectiveness of International Supervision: Thirty Years of I.L.O. Experience 147150 (1966).

131 Another issue, beyond the scope of this article, is whether the international human rights treaty bodies are competent to find violations of international humanitarian law, or even evaluate conduct during armed conflict or military occupation, when the treaties that created these bodies gave them a mandate only to review generally state implementation obligations under each instrument.

132 Wall case, supra note 6, at para. 106. The Court also made similar statements in DRC v. Uganda, supra note 7, at para. 216 and the Nuclear Weapons case, supra note 2, at para. 25.

133 Wall case, supra note 6, at para. 127; see also id. at paras. 136, 140.

134 Article 4 further stipulates that the measures be “strictly required by the exigencies of the situation,” and “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.”

135 Landinelli Silva v. Uruguay, Comm. No. 34/78, ¶ 8.3, UN Doc. CCPR/C/OP/1, 65 (1984) (“Although the substantive right to take derogatory measures may not depend on a formal notification being made pursuant to article 4(3) of the Covenant, the State party concerned is duty-bound to give a sufficiently detailed account of the relevant facts when it invokes article 4(1) …”). For further discussion of the case, see McGoldrick Dominic, The Human Rights Committee paras. 7.367.41 (1994).

136 See, e.g., Weismann Lanza and Lanza Perdomo v. Uruguay, Comm. No. R. 2/8, ¶ 15, UN Doc. A/35/40 (1980); Torres Ramírez v. Uruguay, Comm. No. R. 1/4 (1977), ¶ 17, UN Doc. A/35/40 (1980) at 111. See also McGoldrick, supra note 135, at para. 7.36 (“[Ramirez] clearly indicates that the HRC will consider ex officio the possible application of article 4 even when the State party does not specifically rely upon it”); Joseph, Schultz, & Castan, supra note 46, at 835 (“It is uncertain how the HRC will react should a State Party make a bona fide attempt to justify its derogations, as this has never occurred in an Optional Protocol case.”). It should be noted that Israel consistently informed the Committee of its view that none of the provisions of the ICCPR applied in the West Bank and Gaza. See Concluding Observations of the Human Rights Committee: Israel, supra note 47, at ¶ 10.

137 Multilateral Treaties Deposited With the Secretary General, see supra note 97, at ch. 4.4 (notifications under Article 4(3) of Covenant (Derogations)). As of July 10, 2007, twenty-nine states had submitted notifications under Article 4(3).

138 See Matthew Reimer, Strategic Tradeoffs in Iraq (Dec. 15, 2003), available at http://www.globalpolicy.org/security/issues/iraq/archoccupindex.htm (last visited Aug. 13, 2007).

139 In Banković v. Belgium, supra note 58, some States argued that the bombardment was not imputable to the respondent states but to NATO, an organization with an international legal personality separate from that of the respondent States. The European Court did not reach the issue of the alleged several liability of respondent States in light of its holding concerning the scope of application of Article 1 of the ECHR. Banković v. Belgium, supra note 58, at para. 83. However, subsequently, in Beharami v. France 2007 Eur. Ct. H.R.; Beharami v. France, App. no. 71412/01 (GC)(not yet reported)(May 2, 2007), the European Court did conclude that actions taken by KFOR in Kosovo were in principle attributable to the UN, and not to member states. See discussion infra at notes 173-178and accompanying text.

140 The European Court in Banković v. Belgium, supra note 58, at para. 62 did not “find any basis upon which to accept the applicants' suggestion that Article 15 covers all “war” and “public emergency” situations generally, whether obtaining inside or outside the territory of the Contracting State.” Similarly, it is difficult to see how states contributing troops to multilateral forces would be able to limit rights extraterritorially on the basis of the “national security” restrictions permitted under various provisions of the ICCPR. See Articles 12(3)(liberty of movement), 14 (exclusion of press from trials), 19 (freedom of expression), and 21 (peaceful assembly). The negotiating history of the Covenant indicates that most states believed that these restrictions “which applied in times of peace were plainly inadequate in a case of public emergency, when much more stringent measures might be required.” UN Doc. E/CN.4/SR.330, at 10 (1952)(statement of UK representative); see also UN Doc. E/CN.4/SR.127, at 4 (1949) (statement of representative of Australia)(stating that “the words ‘national security’ appearing in a number of articles” were not “sufficient to meet all the contingencies arising out of a war or a serious emergency”); Higgins Rosalyn, Derogations Under Human Rights Treaties, 48 Brit. Y.B. Int'l L. 281, 286 (1977). The ICJ concluded in its Wall case that any restriction under ICCPR Article 12(3) on the basis of “national security” must “conform to the principle of proportionality” and “be the least intrusive instrument amongst those which might achieve the desired result” (quoting the Human Rights Committee's General Comment No. 27, States of Emergency, UN Doc. CCPR/C/21/Rev.1/Add.11 (Aug. 31, 2001), and that “[o]n the basis of the information available to it… these conditions are not met in the present instance.” Wall case, supra note 6, at para. 136.

141 UN Doc. E/CN.4/AC.3/SR/8, at 10 (1947).

142 Id. (statement of legal adviser of the United Kingdom). The UK proposal was accepted by the Commission in its plenary session. UN Doc. E/CN.4/SR.42, at 4–5 (1947). Belgium later asserted with respect to ICCPR Article 4(2)(nonderogable rights) that, nonetheless, “under international law, in case of war, the covenant would be at least suspended between belligerents.” UN Doc. E/CN.4/SR.330, at 7 (1950) (statement of representative of Belgium); see also Annotation Prepared by the Secretary-General, Draft International Covenants on Human Rights, ¶ 37, UN Doc. A/2929 (1955) (“In time of war, for example, States could not be strictly bound by obligations assumed under a convention unless the convention contained provisions to the contrary.”).

143 See Fitzpatrick, supra note 130, at 29–37; Nowak, supra note 28, at 73–74; Hartman Joan F., Derogation from Human Rights Treaties in Public Emergencies, 22 Harv. Int'l L. J. 1, 11, 13 (1981).

144 UN Doc. E/CN.4/SR.195, at 11 (1950)(statement of representative of Uruguay). For the vote on the retention of Article 4, see id. at 17.

145 UN Doc. E/CN.4/SR.330, at 12 (1952)(statement of representative of France).

146 Article 4(2) stipulates that no derogation may be made from Articles 6 (right not to be arbitrarily deprived of one's life), 7 (prohibition of torture), 8 (prohibition of slavery and servitude), 11 (prohibition of detention for debt), 15 (prohibition of retroactive criminal laws), 16 (recognition as a person before the law), and 18 (freedom of thought, conscience, and religion).

147 See, e.g., UN Doc. E/CN.4/SR.195, at 23 (1950)(statement of representative of Belgium)(Article 26 was “not applicable in time of war” because “a State could not treat its own citizens the same as enemy nationals”); UN Doc. E/CN.4/SR.196, at 3 (1950)(statement of Eleanor Roosevelt). For the vote, see id. at 7–8.

148 UN Doc. E/CN.4/SR.196, at 5 (1950)(statement of representative of the Philippines). The drafters added a specific nondiscrimination clause to Article 4(1) in 1952, excluding the factor of national origin in order to permit discrimination against enemy aliens residing in their territory. CHR, Report of the Eighth Session, UN ESCOR, 14th Sess., Supp. No. 4, at 279–80, UN Doc. E/2256-E/CN.4/669; see Hartman, supra note 143, at 10.

149 ¶ 8, UN Doc. A/C.3/SR.1262 (1963)(statement of representative of the Netherlands). The point was also stressed that Article 4 could apply only within the territory of a state, ¶ 46, UN Doc. A/C.3/SR. 1261 (1963)(statement of representative of Romania).

130 Perhaps equally important to the Court's opinion in the Wall case was its factual determination that “the military operations leading to the occupation of the West Bank in 1967 ended a long time ago.” Wall case, supra note 6, at para. 134. By this logic, under Article 6 of the Fourth Geneva Convention the provisions of the Convention ceased to apply in the territory of Israel when the military operations ended and one year later in the occupied territories. Nonetheless, under Article 6(3), “to the extent that such [occupying] Power exercises the functions of government,” that power is still bound with respect to a limited number of the provisions of the Convention. The Court assumed that Israel continued to exercise the functions of government in the West Bank and Gaza, and specifically concluded that Israel violated Article 53 of the Convention (prohibition on destruction of property). Wall case, supra note 6, at paras. 77, 132, & 133. Thus, the Court's position left it with a highly unusual situation; many other protections provided under the Convention relating to civil and political rights were no longer applicable. In fact, the Court's finding rendered inapplicable two provisions of the Fourth Geneva Convention that would appear to be in conflict with Article 12 of the ICCPR concerning liberty of movement. Articles 42 and 78 permit internment or placement in assigned residence of protected persons where the security of the detaining power makes it absolutely necessary.

151 In the Wall case, the Court also summarily found that Israel could not derogate from the provisions of the ICESCR or the CROC since those instruments do not contain provisions for derogation of the kind found in Article 4 of the ICCPR. Wall case, supra note 6, at paras. 106 & 136. Nonetheless, the negotiating history of Article 4, discussed above, strongly suggests that the opposite would be true: states should be free to derogate from their treaty obligations under the ICESCR and the CROC during armed conflict, since the treaties do not contain provisions to the contrary. The Committee on Economic, Social and Cultural Rights appears to have assumed that even though there is no derogation provision in the ICESCR, states would be able to derogate from noncore obligations during periods of emergency. See, e.g., ESCR Comm., General Comment No. 16, ¶ 17, UN Doc. E/CN. 12/2005/4 (Nov. 8, 2005)(equal right of men and women to enjoyment of economic rights non-derogable); ESCR Comm. General Comment No. 15, ¶ 37 & 40, UN Doc. E/CN. 12/2002/11 (Jan. 20,2003)(core obligations concerning right to water non-derogable). Additionally, as noted above, supra note 130, the ILO has long held the view that belligerents may suspend fulfillment of obligations assumed under the various ILO conventions, even though those instruments do not provide for derogation. See generally, Dennis, supra note 34 at 129 & 140-41 (2005).

152 DRC v. Uganda, supra note 7, para. 178.

153 Al-Skeini (HL), supra note 67, at para. 129.

154 (Emphasis added M.J.D.).

155 Dinstein Yoram, The International Law of Belligerent Occupation and Human Rights, 1978 Isr. Y.B. Hum. Rts. 104, 111. See also Benvenisti Eyal, The International Law of Occupation 716 (1993).

156 See Yoram Dinsten, Legislation and Article 43 of the Hague Regulations: Belligerent Occupation and Peacebuilding, at 4 (2004), available at http://www.hpcr.org/pdfs/OccasionalPaperl.pdf (last visited April 24, 2007).

137 See Meron Theodor, Applicability of Multilateral Conventions to Occupied Territories, 72 Am. J. Int'l L. 542, 550 (1978). He concludes with respect to Article 43, in the context of ILO Conventions in the West Bank, that “[i]f prior to the commencement of the occupation of a territory, the territorial sovereign had ratified an international labor convention and adopted the necessary implementing legislation, the occupant must respect the relevant labor standards as part of the local legislation in force.”

158 Meron points out that “the ratification or nonratification of such conventions prior to the commencement of the occupation was a sovereign prerogative of the previous government” and that “the local population usually has an interest in the maintenance and preservation of local institutions.” Id. at 551 (footnote omitted). See also notes 79-80 supra and accompanying text.

159 In DRC v. Uganda, the Court found that the applicable rules of international human rights law were ICCPR Articles 6 (right not to be arbitrarily deprived of one's life) and 7 (prohibition of torture and other cruel, inhuman or degrading treatment or punishment). DRC v. Uganda, supra note 7, at para. 217 & 219. The ICJ also summarily concluded that Uganda violated the CROC and the Optional Protocol thereto by recruiting child soldiers in the DROC. Id. at paras. 210, 219. The ICJ further concluded that the regional African Charter on Human and Peoples' Rights was applicable during the Ugandan occupation of Congolese territory and that Uganda violated Articles 4 (right to life) and 5 (prohibition of exploitation and degradation particularly slavery, slave trade, torture, and cruel, inhuman or degrading punishment and treatment). Id.

160 Human Rights Committee Concluding Observations: DROC, ¶ 16, UN Doc. CCPR/C/COD/CO/3 (April 26, 2006).

161 Id. With regard to the right to life, the Human Rights Committee called upon the DROC to “open inquiries into any forced disappearance or arbitrary execution reported to it, appropriately prosecute and punish the perpetrators of such acts and grant effective reparations including appropriate compensation, to victims or their families (articles 6, 7, and 9).” Id. at para. 15. In all events, it would seem that the decision concerning the right to life must be read in light of the Court's earlier statement in the Nuclear Weapons case, supra note 2, at paras. 25, 34, that whether a particular loss of life is to be considered an arbitrary deprivation of life contrary to Article 6 of the Covenant, can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself.

162 See also Article 64 of the Fourth Geneva Convention, supra note 12 which states in a more precise manner the requirements of Article 43 of the Hague Regulations, supra note 14, concerning penal legislation. During the occupation of Iraq, the Coalition Provisional Authority did not attempt to implement the provisions of the Convention Against Torture in Iraq, as Iraq had not ratified the treaty prior to the occupation. The CPA did cite human rights treaties and ILO conventions which Iraq had ratified prior to the occupation as a basis for certain actions. See, e.g., CPA Order No. 60 (Feb. 22, 2004)(establishing the Ministry of Human Rights to address past human rights atrocities). Prior to the commencement of the occupation, Iraq had ratified five of the six widely ratified international human rights treaties (the Covenants, the CROC, and the Conventions on the Elimination of Racial Discrimination and of Discrimination Against Women) and fifty-nine of the ILO conventions currently in force. Additionally, shortly before the end of the occupation, the Iraqi Governing Council approved a Transitional Administrative Law, recognizing that the people of Iraq enjoy the rights provided in international treaties and agreements and in the law of nations. Transitional Administrative Law, art. 23, Mar. 8, 2004, available at http://www.cpa-iraq.org/government/TAL.html (last visited June 12, 2007). The law also guaranteed specific civil and political rights in Chapter 2: Fundamental Rights. The orders and regulations of the CPA, available at http://www.iraqcoalition.org/regulations/index.html#Regulations (last visited June 12, 2007).

163 Dinstein notes that “the proper and accepted construction [of the phrase absolutely prevented] is that absolute prevention means necessary.” Dinstein, supra note 155, at 112. Some scholars have concluded that military necessity and the safety of the occupying power are the sole justification, under Article 43 of the Hague Regulations, for revising the laws in force in an occupied territory. See, e.g., Kelsen Hans, Principles of International Law 141–42 (2nd ed. 1967); Oppenheim L., The Legal Relations Between an Occupying Power and the Inhabitants, 33 L.Q. Rev. 363, 364–65 (1917). Oppenheim points out: “There is not an atom of sovereignty in the authority of the occupant. …” However, other scholars take the view that safeguarding the welfare of the native population is also a legitimate aim of any lawful military occupation, particularly in situations of prolonged military occupation. See Meron, Applicability of Multilateral Conventions to Occupied Territories, supra note 157, at 550; Dinstein Yoram, The Israeli Supreme Court and the Law of Belligerent Occupation: Article 43 of the Hague Regulations, 1995 Isr. Y.B. Hum. Rts. 1, 910; Benvenisti Eyal, The Applicability of Human Rights Conventions to Israel and to the Occupied Territories, 26 Isr. L. Rev. 24, 3132 (1992); Roberts Adam, Prolonged Military Occupation: The Israeli-Occupied Territories Since 1967, 84 Am. J. Int'l L. 44, 99 (1990). Scheffer suggests that it might be possible to develop “a more effective and legally acceptable means to respond to the civilian populations that are at risk” through a ‘“transformational occupation’ by one or more military powers acting under the authority of the UN Security Council.” Scheffer David J., Beyond Occupation Law, 97 Am. J. Int'l L. 842, 859–60 (2003). Scheffer further argues that “[u]nder a UN mandate, strict adherence to the technical requirements of many codified occupation law provisions would be nonsensical.” Id. at 853.

164 Kelly Michael J., Restorjng and Maintaining Order in Complex Operations 92 (1999); Frowein, supra note 124, at 9–11; Schindler Dietrich, The International Committee of the Red Cross and Human Rights, 208 Int'l Rev. Red Cross, 3, 11 (Feb. 1979), at 3, 11; Watkin Kenneth, Controlling the Use of Force: A Role for Human Rights Norms in Contemporary Armed Conflict, 98 Am. J. Int'l L. 1, 2628 (2004).

165 Benvenisti, supra note 155, at 16, 189; see also Greenspan Morris, Modern Law of Land Warfare 233 (1959); Von Glahn Gerhan, The Occupation of Enemy Territory, A Commentary on the Law and Practice of Belligerent Occupation 9899 (1957). During the drafting of the Fourth Geneva Convention, states rejected a proposal by the Mexican delegate that would have required that modifications to the law of the occupied territory could occur only in accordance with the Universal Declaration. Final Record of the Diplomatic Conference of Geneva Of 1949, 2 A, at 671; see also Kolb Robert, The Relationship Between International Humanitarian Law and Human Rights Law: A Brief History of the 1948 Universal Declaration of Human Rights and the 1949 Geneva Conventions, 324 Int'l Rev. Red Cross, Sept. 1998, at 409, 415.

166 Protocol I, supra note 12; Protocol II, supra note 12.

167 Additionally, the prohibition on retroactive criminal laws contained in ICCPR Article 15(1) is restated virtually verbatim in both Article 6(c)(2) of Protocol 11 and Article 75(4)(c) of Protocol I. Both Protocols also contain more detailed rules than the ICCPR concerning the arbitrary deprivation of life and torture. Protocol II, supra note 12, at Article 4(2); Protocol I, supra note 12, Article 75(2). The effect of the ICCPR on Protocol II is more pronounced. See generally International Committee of the Red Cross [ICRC], Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, at 865, 1365 (Sandoz Yves, Swinarski Christophe, & Zimmermann Bruno eds., 1987)(Protocol II “contains virtually all the irreducible rights of the Covenant… from which there is no possibility of derogation”); Bother, Partsch, & Solf, supra note 40, at 650 (“Most of the provisions of this Article [6] correspond to provisions of the Covenant on Civil and Political Rights.”); Moir Lindsay, The Law of Internal Armed Conflict 210–31 (2002).

168 Schindler, supra note 164, at 14. He further states that “certain political freedoms, such as freedom of the press, freedom of expression, freedom of association” are “of no importance in armed conflicts.” Id. at 11. The ICRC gave the following reason for restating various provisions of the ICCPR in Protocol II:

The system of protection set up by international humanitarian law … differs from that provided by instruments on human rights. Nevertheless, the view was held that some basic provisions of the International Covenant on Civil and Political Rights—particularly those from which no derogation may be made even in time of public emergency which threatens the life of the nation—should be applicable in the context of armed conflict… As every legal instrument specifies its own field of application, some of the Covenant's provisions have been restated within the framework of the draft Protocol.

ICRC, Draft Additional Protocols to the Geneva Conventions 12, 1949: Commentary 134 (No. CDDH/3, 1973).

169 SC Res. 1546, supra note 16.

170 Id.

171 Al-Jedda v. Sec. of State for Defense [2006] EWCA 327 (Civ).

172 Id. at paras. 80 & 86. The case is currently on appeal to the House of Lords.

173 Beharami v. France, supra note 139.

174 SC Res. 1244 (June 10, 1999). The Security Council authorized member states to establish the international security presence in Kosovo (KFOR) with substantial NATO participation but under unified command and control “with all necessary means to fulfill its responsibilities.” Id. at para.7 (Empahsis added M.J.D.).

175 In Saramati v. France, a consolidated case, the claimant asserted that he had been illegally detained and that French and Norwegian COMKFOR issued the relevant detention orders. Beharami v. France, supra note 139, at paras. 62, 68. Beharami, the other consolidated case, involved the alleged failure of UNMIK to properly de-mine.

176 Beharami v. France, supra note 139, at para. 92. According to the United Kingdom, which supported the position of Norway and France, the case could be distinguished from the situation in Al-Skeini v. Sec. of State for Defence [2005] EWCA 1609 (Civ.) [hereinafter Al-Skeini (CA)] where the contingent in an international operation in Iraq had exclusive control of a place of detention. Id. at para. 114. See also supra note 67.

177 The Court explained that since KFOR was exercising powers lawfully delegated under Chapter VII of the Charter and UNMIK was a subsidiary organ of the UN created under Chapter VII, the impugned action was, “in principle, ‘attributable’ to the UN,” which “has a legal personality separate from that of its member states” and “is not a Contracting Party to the Convention. Id. at paras. 141, 143-44.

178 Beharami v. France, supra note 139, at para. 149. By way of contrast, the Human Rights Committee earlier had directed that UNMIK “should revoke the Regulation conferring power on the Special Representative of the Secretary-General to detain and expel individuals, [and] seek the cessation of detentions under Commander of KFOR Detention Directive 42. …” Concluding Observations of the Human Rights Committee, Kosovo (Serbia), ¶ 17, UN Doc. CCPR/C/UNK/CO/1 (Aug. 14, 2006). However, as noted above, supra notes 26 and 103, the decisions of the Human Rights Committee are not legally binding.

179 In its 2002 report, the Human Rights Committee concluded that states complied with its existing decisions under the First Optional Protocol to the ICCPR, supra note 26, in only 30 percent of the cases. Report of the Human Rights Committee, vol. I, ¶ 225, UN Doc.A/57/40 (2002), available at http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/ca7694800da16d53c1256d1600396ea6?Opendocument (last visited 12 June, 2007). As one distinguished commentator put it, “[m]any states have ratified [the international human rights treaties] precisely because the international scheme was evidently dysfunctional and the lack of democratic institutions at home made the likelihood of national consequences comfortably remote.” Bayefsky Anne, The UN Human Rights Treaty System: Universality at the Crossroads 7 (2001).

* Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State.

The views expressed herein are solely those of the author. Part of the material contained in this paper was previously published in Vol. 99 of the Am. J. Int'l L. pages 119-141 (2005).

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Israel Law Review
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