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Lex Specialis? Belt and Suspenders? The Parallel Operation of Human Rights Law and the Law of Armed Conflict, and the Conundrum of Jus ad Bellum

  • William A. Schabas
Abstract

Two different theories attempt to reconcile problems of application of international human rights law in time of armed conflict, to the extent that there is a potential conflict with norms set out in international humanitarian law. One, posited by the International Court of Justice, presents international humanitarian law as the lex specialis, a kind of prism through which the concept of “arbitrary deprivation of life” (Article 6(1) International Covenant on Civil and Political Rights) is to be understood in time of armed conflict. In effect, international humanitarian law supplants international human rights law during armed conflict. The other theory, advanced by the Human Rights Committee, views the two bodies of law as additive in effect. Both regimes apply, and the individual benefits from the more favorable one (“belt and suspenders” approach). Both theories profess the fundamental compatibility of the two different legal systems, yet they are predicated upon a method for resolving conflicts between them. Both theories encounter serious problems in their application. The author submits that the difficulty with these attempts to reconcile human rights law and humanitarian law lies with the failure to grasp an underlying distinction: international humanitarian law is built upon neutrality or indifference as to the legality of the war itself. Human rights law, on the other hand, law views war itself as a violation. There is a human right to peace. Because of this fundamental incompatibility of perspective with regard to jus ad bellum, human rights law and international humanitarian law can only be reconciled, as both the International Court of Justice and the Human Rights Committee desire, if human rights law abandons the right to peace and develops an indifference to the jus ad bellum. It too must accept the idea of the acceptability of “collateral” killing of civilians in war, even if the war itself is illegal. The author argues that it is preferable not to attempt to find a neat and seamless relationship between international humanitarian law and international human rights law, in the interests of preserving the pacifist strain within international human rights law.

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

2 id. at para. 78.

3 id. at para. 97.

4 Legal Consequences of the Construction of a wall in the Occupied Territory, Advisory Opinion, 2004 I.C.J. 136 (July 9), at para. 106 [hereinafter Wall case].

5 Françoise Hampson & Ibrahim Salama, Working Paper on the Relationship between Human Rights Law and International Humanitarian Law, ¶57, UN Doc. E/CN.4/Sub.2/2005/14 (June 25, 2001).

6 Case Concerning Armed Activities on the Territory of the Congo (DRC v. Uganda), 2005 I.C.J. 116, (Dec. 19), at paras. 216-217 [hereinafter DRC v. Uganda].

7 id. at para. 178.

8 id. at para. 179.

9 id. at para. 180.

10 Wall case, supra note 4.

11 Human Rights Committee, General Comment No. 29: States of Emergency (article 4), UN Doc. CCPR/C/21/Rev. 1/Add.11 (July 24, 2001) see especially ¶13.

12 International Committee of the Red Cross, Report on the Work of the Conference of Government Experts for the Study of the Conventions for the Protection of War Victims (1947); see especially. Series I. no. 5b, Geneva, 1947, Annex C, art. 7.

13 1 Final Record of the Diplomatic Conference of Geneva of 1949 123124, art. 59 (1963) [hereinafter Final Record].

14 Uhler, Oscar M. et al. , Commentary, IV, Geneva Convention Relative to the Protection of Civilian Persons in Time of War 346-347, 371372 (1958).

15 The United States delegate, during first reading of the provision in Committee III, said: “The abolition of the death penalty in the case of protected persons under eighteen years of age (last paragraph) was a matter which called for very careful consideration before such a sweeping provision was adopted.” Final Record, supra note 13. (Summary record of nineteenth meeting of Committee III, at 673).

16 Third Committee of the General Assembly, ¶25, UN Doc. A/C.3/SR.820 (1957).

17 Roach and Pinkerton v. United States, Case No. 9647, Inter-Am. C.H.R., Report No. 3/87, OES/Ser.L/V/II/71, doc. 9, rev. 1 (1987), at para. 37(g).

18 Id. dissenting opinion of Dr. Marco Garado Monroy Cabra.

19 Id. at para. 59.

20 Domingues v. United States, Case No. 12.285, Inter-Am. C.H.R., Report No. 62/02, OEA/Ser.L./V (Oct. 22, 2002), at para. 67.

21 Standing Committee for Human Rights (CDDH), Committee of Experts for the Development of Human Rights (DH-DEV), Study on Human Rights Protection During Situations of Armed Conflict, Internal Disturbances and Tensions, ¶32, DH-DEV(2002)001.

22 UN Doc. S/RES/827 (May 25, 1993).

23 See, e.g., the remarks of the Cuban representative to the Sixth Committee, who presented the initial General Assembly resolution on genocide: UN Doc. A/C.6/SR.22 (Oct. 29, 1946). Ernesto Dihigo said that at the Nuremberg trials it had not been possible to punish certain crimes of genocide because they had been committed before the beginning of the war. Fearing that such crimes might remain unpunished owing to the principle of nullum crimen sine lege, the representative of Cuba asked that genocide be declared an international crime. The draft resolution, UN Doc. A/BUR/50 (1946) stated:

Whereas the punishment of the very serious crime of genocide when committed in time of peace lies within the exclusive territorial jurisdiction of the judiciary of every State concerned, while crimes of a relatively lesser importance such a s piracy, trade in women, children, drugs, obscene publications are declared as international crimes and have been made matters of international concern…

24 See, e.g., “Memorandum on the Present Position of the United Nations War Crimes Commission, the Work Already Done and its Future Tasks,” by Dr. B. Ecer, at 7; “Correspondence between the War Crimes Commission and HM Government in London Regarding the Punishment of Crimes Committed on Religious, Racial or Political Grounds,” UN War Crimes Commission Doc. C.78, February 15, 1945; “Minutes of the Twenty-seventh meeting held on 8 August 1944,” UN War Crimes Commission Doc.M.27, at 2.

25 Prosecutor v. Galić, Case No. IT-98-29-T, Judgment and Opinion (Dec. 5, 2003).

26 Prosecutor v. Erdemović, Case No. IT-96-22-T, Judgment, Sentencing Judgment (Mar. 3, 1998); Prosecutor v. Mucić et al., Case No. IT-96-21-T, Judgment (Nov. 16, 1998); Prosecutor v. Furundžija, Case No. IT-95-17/1-T, Judgment (Dec. 10, 1998); Prosecutor v. Jokić, Case No. IT-01-42/1-S, Sentencing Judgment (Mar. 18, 2004); Prosecutor v. Strugar, Case No. IT-01-42, Judgment (Jan. 31, 2005); Prosecutor v. Hadžihasanović et al., Case No. IT-01-47-T, Judgment (Mar. 15, 2006); Prosecutor v. Oric, Case No. IT-03-68-T, Judgment (June 30, 2006).

27 Prosecutor v. Lubanga, Case No. ICC-01/04-01/06-8, Decision on the Prosecutor's Application for a Warrant of Arrest (Feb. 10, 2006); Prosecutor v. Lubanga, Case No. ICC-01/04-01/06, Décision sur la confirmation des charges (Jan. 29, 2007).

28 Protocol Additional to the Geneva Conventions of 12 August 1949, relating to the Protection of Victims of International Armed Conflicts, arts. 77(2) and 4(3)(d), 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, art. 4(3)(d). Dec. 12, 1977, 1125 U.N.T.S. 609 [hereinafter Protocol II].

29 Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3 [hereinafter CROC], See Prosecutor v. Norman, Case No. SCSL-2004-04-14-PT, Decision on the Motion to Recuse Judge Winter from the Deliberation in the Preliminary Motion on the Recruitment of Child Soldiers (May 28, 2004).

30 Article 51 (5)(b) of Protocol I, supra note 28.

31 Id.

32 Id.

33 Isayeva v. Russia, app. No. 57950/00, (given Oct. 14, 2005), available at http://cmiskp.echr.coe.int/tkp197/view.asp?item=2&portal=hbkm&action=html&highlight=Isayeva%2C%20%7C%20Yusupova&sessionid=1751995&skin=hudoc-en (last visited August 12, 2007).

34 Isayeva, Yusupova and Basayea v. Russia, app. Nos. 57947/00, 57948/00, & 57949/00, at para. 32 (given Feb. 24, 2005), available at http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=Isayeva%2C%20%7C%20Yusupova&sessionid=1751995&skin=hudoc-en (last visited August 12, 2007).

35 Isayeva v. Russia, supra note 33, at para. 173; Isayeva, Yusopova and Bazayeva v. Russia, supra note 34, at para. 169.

36 Id.

37 Isayeva v. Russia, supra note 33, at para. 176.

38 Isayeva, Yusopova and Bazayeva v. Russia, supra note 34, at para. 178.

39 Isayeva v. Russia, supra note 33, at para. 191.

40 Id.

41 Id. at para. 200.

42 Isayeva, Yusopova and Bazayeva v. Russia, supra note 34, at para. 199.

43 Kearney, Michael, The Prohibition of Propaganda for War in the International Covenant on Civil and Political Rights, 23 Netherlands Q. Hum. Rts. 551 (2005).

44 General Comment No. 6, The Right to Life, ¶2, UN Doc. CCPR/C/21/Add.1 (2003).

45 General Comment No. 14, Nuclear Weapons and the Right to Life, ¶2, UN Doc. HRI/GEN/1/Rev.6 at 139(2003).

46 Universal Declaration of Human Rights, G.A. Res. 217A, at 71, UN Doc. GAOR, 3d Sess., 1st plen. Mtg., UN Doc A/810 (Dec. 12, 1948).

47 African Charter of Human and People's Rights, OAU Doc. CAB/LEG/67/3 rev. 5, (June 27, 1981) art. 23; 21 I.L.M. 58(1982).

48 See, e.g., Kolb, Robert, Aspects historiques de la relation entre le droit international humanitaire et les droits de l'homme, 37 Can. Y.B. Int'l L. 57, 6165 (1999); Hampson & Salama, supra note 5.

49 Meron, Theodor, On the Inadequate Reach of Humanitarian and Human Rights Law and the Need for a New Instrument, 77 Am. J. Int'l L, 589 (1983); Meron, Theodor, Towards a Humanitarian Declaration on Internal Strife, 78 Am. J. Int'l L 859 (1984); Eide, Asbjorn, Rosas, Allan, & Meron, Theodor, Combating Lawlessness in Grey Zone Conflicts Through Minimum Humanitarian Standards, 89 Am. J. Int'l L, 215, (1995).

50 Wall case, supra note 4, at para. 122.

51 Rome Statute of the International Criminal Court, July 1, 2002, 2187 U.N.T.S. 3. Article 5(2) of the Rome Statute states that the Court may not exercise jurisdiction over the crime of aggression until certain conditions have been fulfilled, including agreement on definition of the crime. This process is scheduled for completion at the 2009 Review Conference. See generally Informal Intersessional Meeting of the Special Working Group on the Crime of Aggression, Doc. ICC-ASP/5/SWGCA/INF.1.

52 Geneva Convention (III) relative to the Treatment of Prisoners of War, Geneva, art. 4(a), Aug. 12, 1949, 75 U.N.T.S. 135, 6 U.S.T. 3316

53 France et al. v. Goering et al., International Military Tribunal, Judgment, 30 September-1 October 1946, 41 Am J. Int'l L. 172, 186 (1947).

* Professor of Human Rights Law, National University of Ireland, Galway and Director, Irish Centre for Human Rights.

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