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The Role of Necessity in International Humanitarian and Human Rights Law

  • Lawrence Hill-Cawthorne (a1)
Abstract

The nature of armed conflict has changed dramatically in recent decades. In particular, it is increasingly the case that hostilities now occur alongside ‘everyday’ situations. This has led to a pressing need to determine when a ‘conduct of hostilities’ model (governed by international humanitarian law – IHL) applies and when a ‘law enforcement’ model (governed by international human rights law – IHRL) applies. This, in turn, raises the question of whether these two legal regimes are incompatible or whether they might be applied in parallel. It is on this question that the current article focuses, examining it at the level of principle. Whilst most accounts of the principles underlying these two areas of law focus on humanitarian considerations, few have compared the role played by necessity in each. This article seeks to address this omission. It demonstrates that considerations of necessity play a prominent role in both IHL and IHRL, albeit with differing consequences. It then applies this necessity-based analysis to suggest a principled basis for rationalising the relationship between IHL and IHRL, demonstrating how this approach would operate in practice. It is shown that, by emphasising the role of necessity in IHL and IHRL, an approach can be adopted that reconciles the two in a manner that is sympathetic to their object and purpose.

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1 See, eg, Ben-Naftali, Orna (ed), International Humanitarian Law and International Human Rights Law (Oxford University Press 2011); Droege, Cordula, ‘The Interplay between International Humanitarian Law and International Human Rights Law in Situations of Armed Conflict’ (2007) 40 Israel Law Review 310; Provost, René, International Human Rights and Humanitarian Law (Cambridge University Press 2002); Doswald-Beck, Louise and Vité, Sylvain, ‘International Humanitarian Law and Human Rights Law’ (1993) International Review of the Red Cross 94. See also the symposia on this topic in (2009) 14 Journal of Conflict and Security Law 441; (2007) 40 Israel Law Review 306.

2 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion [1996] ICJ Rep 226, [25]; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] ICJ Rep 136, [106]; Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), Merits Judgment [2005] ICJ Rep 116, [216].

3 On the traditional view, see, eg, Draper, GIAD, ‘The Relationship between the Human Rights Regime and the Law of Armed Conflicts’ (1971) 1 Israel Yearbook of Human Rights 191; Suter, K, ‘An Inquiry into the Meaning of the Phrase “Human Rights in Armed Conflicts”’ (1976) 15 Revue de Droit Pénal Militaire et de Droit de la Guerre 393. For an excellent summary of this trend, see Droege (n 1).

4 For an example of the former, see the IHL rules on the right of prisoners of war to elect a prisoners' representative: Geneva Convention (III) Relative to the Treatment of Prisoners of War (entered into force 21 October 1950) 75 UNTS 135 (GC III), arts 79–81. For an example of the latter, see the case of DRC v Uganda (n 2), in which the ICJ dealt with, inter alia, systematic attacks against the civilian population (ibid [206]). Such acts are clearly contrary to both humanitarian and human rights law, and thus the Court did not need to address how the two interacted with regard to the norms engaged in that case; instead, it could simply apply both side by side (ibid [219]).

5 For a discussion of these issues with regard to detention and targeting, see Pejic, Jelena, ‘Conflict Classification and the Law Applicable to Detention and the Use of Force’ in Wilmshurst, Elizabeth (ed), International Law and the Classification of Conflicts (Oxford University Press 2012) 80.

6 Schabas, William A, ‘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’ (2007) 40 Israel Law Review 592, 594–98 (noting that the case law of the ICJ can be invoked to support both of these approaches).

7 Droege, Cordula, ‘Elective Affinities? Human Rights and Humanitarian Law’ (2008) 90 International Review of the Red Cross 501, 503; Doswald-Beck and Vité (n 1) 101–05.

8 Dinstein, Yoram, The Conduct of Hostilities under the Law of International Armed Conflict (2nd edn, Cambridge University Press 2010) 4–6; Greenwood, Christopher, ‘Historical Development and Legal Basis’ in Fleck, Dieter (ed), The Handbook of International Humanitarian Law (2nd edn, Oxford University Press 2008) 1, 37–38; Solis, Gary D, The Law of Armed Conflict: International Humanitarian Law in War (Cambridge University Press 2010) 258.

9 I use the terms ‘humanitarian considerations’ and ‘principle of humanity’ interchangeably throughout this article to refer to the general ‘desire to attenuate human anguish in any armed conflict’ (Dinstein, ibid 5).

10 Meron, Theodor, ‘On the Inadequate Reach of Humanitarian and Human Rights Law and the Need for a New Instrument’ (1983) 77 American Journal of International Law 589, 593–94. For similar views see, eg, Greenwood (n 8) 12; Inter-American Commission on Human Rights, ‘Detainees in Guantanamo Bay, Cuba: Request for Precautionary Measures’, 13 March 2002; Martin, Francisco Forrest, ‘Using International Human Rights Law for Establishing a Unified Use of Force Rule in the Law of Armed Conflict’ (2001) 64 Saskatchewan Law Review 347, 360–63; ICTY, Prosecutor v Furundžija, Judgment, IT-95-17/1-T, Trial Chamber, 10 December 1998, [183]; Rwelamira, Medard R, ‘Human Rights and International Humanitarian Law: The Link or Common Ground Revisited’ (1992) 3 Stellenbosch Law Review 329, 340.

11 There remains no systematic study that compares the role of necessity in each of these bodies of law. Some studies have, however, made some reference to the importance of necessity in both IHL and IHRL: see, eg, Geiß, Robin, ‘Military Necessity: A Fundamental “Principle” Fallen into Oblivion’ (2008) 2 Select Proceedings of the European Society of International Law 554; Eide, Asbjorn, ‘The Laws of War and Human Rights – Differences and Convergence’ in Swinarski, Christophe (ed), Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet (Martinus Nijhoff 1984) 682. That considerations of necessity permeate both IHL and IHRL was also recognised in Wall (n 2) [140].

12 Prud'homme, Nancie, ‘Lex Specialis: Oversimplifying a More Complex and Multifaceted Relationship?’ (2007) 40 Israel Law Review 355, 360–61 (discussing the different objectives of the two bodies of law).

13 As explained in Section 5, by ‘complex conflict situations’ is meant primarily non-international armed conflicts and situations of belligerent occupation, where understanding the relationship between humanitarian law and human rights law becomes particularly pressing: see below at text to nn 75–78.

14 International Law Commission, Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries (2001) Report of the ILC, 53rd sess (2001) 2 Yearbook of the International Law Commission 26, UN Doc A/56/10 (2001) (ILC DASR), art 2; Case Concerning the Gabčikovo-Nagymaros Project (Hungary v Slovakia) Judgment [1997] ICJ Rep 7, [78]; Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US) [1986] ICJ Rep 14, [226]; Case Concerning US Diplomatic and Consular Staff in Tehran (US v Iran), Judgment [1980] ICJ Rep 3, [56]; Phosphates in Morocco, Preliminary Objections (1938) PCIJ Rep (Ser A/B, No 74) 28.

15 I take the notion of ‘circumstances precluding wrongfulness’ from ILC DASR, Ch V, Pt One, which lists the specific circumstances that may be invoked to preclude wrongfulness: see ILC DASR, ibid arts 20–25. Although I use the term ‘defence’ as a useful analogy here, it is clear that important differences exist between a defence to a wrongful act and a circumstance that precludes wrongfulness in the first place: see Lowe, A Vaughan, ‘Precluding Wrongfulness or Responsibility: A Plea for Excuses’ (1999) 10 European Journal of International Law 405.

16 There is some judicial and doctrinal criticism of the doctrine, however: see, eg, Rainbow Warrior (New Zealand/France) (1990) RIAA, Vol XX, 217, 254; Sloane, Robert D, ‘On the Use and Abuse of Necessity in the Law of State Responsibility’ (2012) 106 American Journal of International Law 447; Allott, Phillip, ‘State Responsibility and the Unmaking of International Law’ (1988) 29 Harvard International Law Journal 1, 17.

17 Gazzini, Tarcisio, Werner, Wouter G and Dekker, Ige F, ‘Necessity across International Law: An Introduction’ (2010) 41 Netherlands Yearbook of International Law 3, 3–4. See also Heathcote, Sarah, ‘Circumstances Precluding Wrongfulness in the ILC Articles on State Responsibility: Necessity’ in Crawford, James, Pellet, Alain and Olleson, Simon (eds), The Law of International Responsibility (Oxford University Press 2010) 491 (‘[t]he effect of [invoking necessity] is to avoid an overly rigid application of the law in circumstances where there are conflicting values’).

18 ILC DASR (n 14) arts 25(1)(a) and (b).

19 ILC DASR (n 14) arts 25(2)(a) and (b).

20 Crawford, James, The International Law Commission's Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge University Press 2002) 184.

21 Heathcote (n 17) 494. See also ILC, Report of the International Law Commission on the Work of its Thirty-Second Session (1980) 2(II) Yearbook of the International Law Commission, UN Doc A/CN.4/SER.A/1980/Add.1 (Pt 2), 39; Oraa, Jaime, Human Rights in States of Emergency in International Law (Oxford University Press 1992) 223 (derogating measures ‘must also be terminated once the threat has ended’).

22 Gabčikovo-Nagymaros Project (n 14) [52]. Investment tribunals have also had reason to examine necessity as a circumstance precluding wrongfulness and have affirmed the customary character of the doctrine as codified in ILC DASR (n 14) art 25: see, eg, CMS Gas Transmission Co v Argentine Republic, ICSID Case No ARB/01/08, Award, 12 May 2005, para 315.

23 Gabčikovo-Nagymaros Project (n 14) [51].

24 See, eg, Judge Sir Hersch Lauterpacht's view in Case of Certain Norwegian Loans (France v Norway) [1957] ICJ Rep 9, 48 (‘[a]n instrument in which a party is entitled to determine the existence of its obligation is not a … legal instrument. It is a declaration of a political principle or purpose’).

25 Instructions for the Government Armies of the US in the Field, prepared by Francis Lieber, promulgated as General Orders No 100 by President Lincoln, 24 April 1863, art 14, reprinted in Schindler, Dietrich and Toman, Jiri, The Laws of Armed Conflict: A Collection of Conventions, Resolutions and Other Documents (4th edn, Martinus Nijhoff 2004) 3. For its modern incarnation, see UK Ministry of Defence, The Manual of the Law of Armed Conflict (Oxford University Press 2004) 2122.

26 See, eg, Schmitt, Michael N, ‘Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance’ (2010) 50 Virginia Journal of International Law 795, 798 (‘IHL represents a carefully thought out balance between the principles of military necessity and humanity’). For other references that make the same point, see the references above at n 8.

27 Declaration Renouncing the Use, in Time of War, of Explosive Projectiles under 400 Grammes in Weight (entered into force 11 December 1868) 138 CTS.

28 Schmitt (n 26) 798; Venturini, Gabriella, ‘Necessity in the Law of Armed Conflict and in International Criminal Law’ (2010) 41 Netherlands Yearbook of International Law 45, 49.

29 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) (entered into force 7 December 1978) 1125 UNTS 3 (AP I), art 54(2).

30 This exception was inserted at the 1974–77 diplomatic conference as it became clear that states did not want to exclude the possibility of using ‘scorched earth’ tactics to halt or slow an invading force: see Sandoz, Yves, Swinarski, Christophe and Zimmerman, Bruno (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (International Committee of the Red Cross (ICRC)/Martinus Nijhoff 1987) 658.

31 ILC DASR (n 14) art 25. See above, Section 2, on the role of necessity in general international law.

32 Schmitt (n 26) 798; Dinstein (n 8) 5; Greenwood (n 8) 37–38.

33 Dunbar, NCH, ‘Military Necessity in War Crimes Trials’ (1952) 29 British Yearbook of International Law 442, 444, 445 (‘… many writers considered that military necessity was discounted when the rules of warfare were drawn up’ and the post-war trials confirmed that ‘the doctrine has no application to the laws of war except where the latter are actually qualified by explicit reference to military necessity … it had already been taken into consideration when the rules were formulated’). For a more recent confirmation of this, see Crawford (n 20) 185 and references below at n 36.

34 On the doctrine of Kriegsraison see Solis (n 8) 265–69.

35 See, eg, US v List (The Hostage Case), Case No 7, 19 February 1948, reprinted in (1950) 11 Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No 10, 1230 (rejecting a plea of necessity in defence of acts including reprisal killings of civilians).

36 Venturini (n 28) 52; Dinstein (n 8) 6–8; UK Ministry of Defence (n 25) 23.

37 This limiting aspect of military necessity has been recognised by a number of writers: see, eg, Blum, Gabriella, ‘The Laws of War and the “Lesser Evil”’ (2010) 35 Yale Journal of International Law 1, 9–10; Venturini (n 28) 48; Nils Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (ICRC 2009) 79; Greenwood (n 8) 38; UK Ministry of Defence (n 25) 21–22; Carnahan, Burrus M, ‘Lincoln, Lieber and the Laws of War: The Origins and Limits of the Principle of Military Necessity’ (1998) 92 American Journal of International Law 213, 216–17; ILC (n 21) 46.

38 Greenwood (n 8) 38. The extent to which necessity operates as an independent limit on states in armed conflict, and in particular whether it requires a ‘capture rather than kill’ approach with regard to those who are otherwise lawful targets, is controversial: see the discussion below on this at text to nn 101–08.

39 See above, text to nn 20–21.

40 One can see this in the manner with which claims to be acting in accordance with clauses permitting derogation from ordinary rules of IHL on the basis of military necessity have been dealt by the International Criminal Tribunal for the former Yugoslavia (ICTY): see, eg, ICTY, Prosecutor v Dario Kordić and Mario Čerkez, Judgment, IT-95-14/2-A, Appeals Chamber, 17 December 2004, [485].

41 Venturini (n 28) 50; Melzer (n 37) 79; Greenwood (n 8) 38; UK Ministry of Defence (n 25) 23.

42 See above, text to nn 28–31.

43 See above, text to nn 34–35.

44 US Military Tribunal at Nuremberg, The Krupp Trial (17 November 1947–30 June 1948), Case No 58 (1949) X Law Reports of Trials of War Criminals 69, 138–39 (‘[i]n short these rules and customs of warfare are designed specifically for all phases of war. They comprise the law for such emergency. To claim that they can be wantonly – and at the sole discretion of any one belligerent – disregarded when he considers his own situation to be critical, means nothing more or less than to abrogate the laws and customs of war entirely’). Although note the failure of the ICJ to rule on the question of whether the basis of IHL in a state of necessity excludes reliance on necessity as a circumstance to preclude the wrongfulness of a breach of IHL: Wall (n 2) [140].

45 ILC (n 21) 45–46. See also ILC, Addendum – Eighth Report on State Responsibility by Mr Roberto Ago, Special Rapporteur – The International Wrongful Act of the State, Source of International Responsibility (1980) 2(I) Yearbook of the International Law Commission, UN Doc A/CN.4/318/Add.5-7, 34; Arai-Takahashi, Yutaka, The Law of Occupation: Continuity and Change of International Humanitarian Law, and its Interaction with International Human Rights Law (Martinus Nijhoff 2009) 192–93; Crawford (n 20) 185.

46 See above, n 17.

47 AP I (n 29) art 43(2).

48 Ipsen, Knut, ‘Combatants and Non-Combatants’ in Fleck, Dieter (ed), The Handbook of International Humanitarian Law (2nd edn, Oxford University Press 2008) 79, 95.

49 AP I (n 29) art 43(2); Dinstein (n 8) 35.

50 Dinstein (n 8) 34; Solis, Gary, ‘Targeted Killing and the Law of Armed Conflict’ (2007) 60 Naval War College Review 127, 130.

51 GC III (n 4) arts 21 and 118; Dinstein (n 8) 34–35.

52 Although note the debate, discussed below in Section 5, regarding the alleged duty to capture rather than kill: see below at text to nn 101–08.

53 AP I (n 29) art 51(3).

54 Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War (entered into force 21 October 1950) 75 UNTS 287 (GC IV), arts 42–43, 78.

55 Geiß (n 11) 559 (the absence of the requirement of individualised threat assessments of combatants, for example, ‘indicates the presumption that the existence of an armed conflict automatically invokes a certain ‘basic level’ of military necessity'); Downey, William Gerald Jr, ‘The Law of War and Military Necessity’ (1953) 47 American Journal of International Law 251, 256–60 (arguing that necessity in IHL leads to a presumption that one can, inter alia, target and capture members of the enemy armed forces). See also the discussion below on the alleged duty to capture rather than kill: see below at text to nn 101–08.

56 See above, text to n 10.

57 See above, n 11, for a few exceptions to this.

58 n 12.

59 Section 3.2.

60 Droege (n 7) 521.

61 As examples of derogation clauses, see, eg, International Covenant on Civil and Political Rights (entered into force 23 March 1976) 999 UNTS 171 (ICCPR), art 4; European Convention for the Protection of Human Rights and Fundamental Freedoms (entered into force 3 September 1953) 194 CETS (as amended) (ECHR), art 15; American Convention on Human Rights (entered into force 18 July 1978) OAS Treaty Series No 36 (ACHR), art 27. As examples of limitation clauses, see, eg, ICCPR, art 12(3); ECHR, art 10(2); ACHR, art 22(3).

62 Text to n 17.

63 Marks, Susan, ‘Civil Liberties at the Margin: The UK Derogation and the European Court of Human Rights’ (1995) 15 Oxford Journal of Legal Studies 69, 72 (‘[a] derogation signals a departure from [human rights] standards during emergency circumstances. It is accepted that extraordinary measures impinging on otherwise guaranteed rights, or going beyond otherwise permissible limitations on rights, may sometimes be unavoidable’).

64 See, eg, ILC (n 45) 45 fn 147 (noting that states include derogation provisions in human rights treaties so as more clearly to define, and often in broader terms than would be permitted by a plea of necessity under the secondary rules, the rights of states in such situations). This explicit codification, however, must not be confused with early approaches to necessity that viewed it as an inherent, fundamental right of every state to ‘self-preservation’, such that any conduct deemed by a state necessary to preserve its existence was lawful: for an example of such an approach to necessity, see, eg, Hershey, Amos Shartle, The Essentials of International Public Law and Organization (2nd edn, Macmillan 1927) 231; Klüber, Johann Ludwig, Droit des Gens Moderne de l'Europe (2nd edn, Gillaumin et Cie 1874) 7576.

65 Note that the Human Rights Committee (HRC) considers this list of non-derogable rights in ICCPR (n 61) art 4(2) to be non-exhaustive: see HRC, General Comment No 29: States of Emergency (Article 4), UN Doc CCPR/C/21/Rev.1/Add.11 (31 August 2001), para 11.

66 See, eg, Mégret, Frédéric, ‘Nature of Obligations’ in Moeckli, Daniel, Shah, Sangeeta and Sivakumaran, Sandesh (eds), International Human Rights Law (Oxford University Press 2010) 143; Ryngaert, Cedric, ‘State Responsibility, Necessity and Human Rights’ (2010) 41 Netherlands Yearbook of International Law 79; Oraa (n 21) 228; Castberg, Frede, The European Convention on Human Rights (Kluwer 1974) 165. Although note Meron, Theodor, ‘On a Hierarchy of International Human Rights’ (1986) 80 American Journal of International Law 1, 20 (‘[p]erhaps there is, indeed, some overlap in international law between derogations permitted by Article 4 of the Political Covenant and the customary rules of exception to the law governing state responsibility, such as those based on force majeure, state of necessity or self-defence … It is not certain, however, that the match of these customary rules with derogations permissible under Article 4 is perfect, or that the scope of the derogations allowed is identical’).

67 ILC (n 45) 45 fn 147.

68 See above, text to nn 33–36.

69 See, eg, Ryngaert (n 66) 86–88. See also ILC DASR (n 14) art 25(2)(a), which precludes reliance on necessity at the secondary level where this is excluded by the primary rule. As Sarah Heathcote notes, ‘[s]uch an exclusion may be explicit in the primary rule (which would be rare) or implicit, either because the primary rule contains a lex specialis, or because its interpretation does not leave room for the defence’ (Heathcote (n 17) 498).

70 There is case law to suggest, however, that even where the primary rules incorporate considerations of necessity, necessity may still be invoked under the secondary rules as a circumstance precluding wrongfulness: see, eg, CMS Gas Transmission Co v Argentine Republic, ICSID Case No ARB/01/8, Decision on Annulment, 25 September 2007, paras 129–34; Continental Casualty Co v Argentine Republic, ICSID Case No ARB/03/9, Award, 5 September 2008, para 167 fn 242.

71 See the example above, at text to nn 28–31.

72 Text to nn 47–55.

73 ICCPR (n 61) art 4(1).

74 HRC (n 65) para 4; Higgins, Rosalyn, ‘Derogations under Human Rights Treaties’ (1976) 48 British Yearbook of International Law 281, 282–83 (‘derogations to human rights obligations are acceptable only if events make them necessary and if they are proportionate to the dangers that those events represent’).

75 See above for references to the ICJ case law confirming the applicability of IHRL in armed conflict, including non-international armed conflicts and military occupations.

76 Much has been written on the issues involved with applying IHRL alongside IHL in non-international armed conflicts and military occupations. Regarding military occupation, see, eg, Roberts, Adam, ‘Transformative Military Occupation: Applying the Laws of War and Human Rights’ (2006) 100 American Journal of International Law 580; Ben-Naftali, Orna and Shany, Yuval, ‘Living in Denial: The Application of Human Rights in the Occupied Territories’ (2003) 37 Israel Law Review 17; Benvenisti, Eyal, ‘The Applicability of Human Rights Conventions to Israel and to the Occupied Territories’ (1992) 26 Israel Law Review 24; Quigley, John, ‘The Relation between Human Rights Law and the Law of Belligerent Occupation: Does an Occupied Population Have a Right to Freedom of Assembly and Expression?’ (1989) 12 Boston College International and Comparative Law Review 1. Regarding non-international armed conflict, see, eg, Sivakumaran, Sandesh, ‘Re-Envisaging the International Law of Internal Armed Conflict’ (2011) 22 European Journal of International Law 219, 233–36; Abresch, William, ‘A Human Rights Law of Internal Armed Conflict: The European Court of Human Rights in Chechnya’ (2005) 16 European Journal of International Law 741.

77 For a discussion of the notion of asymmetric conflict and the impact this can have on the application of certain basic principles of IHL, see Geiß, Robin, ‘Asymmetric Conflict Structures’ (2006) 88 International Review of the Red Cross 757.

78 For example, Droege (n 7) 527–39 (considering the relationship between IHL and IHRL with regard to the right to life in non-international armed conflicts and occupied territory). See also the references above at n 76.

79 Section 3.2.

80 Kretzmer, David, ‘Rethinking the Application of IHL in Non-International Armed Conflict’ (2009) 42 Israel Law Review 8 (also advocating this approach of drawing on the protective rules of international armed conflicts and applying them in non-international armed conflicts).

81 Nuclear Weapons (n 2) [25].

82 See discussion above, at text to nn 73–74; ECtHR, Ireland v United Kingdom, Series B No 23-I, 119 (‘the obligations under the Convention do not entirely disappear. They can only be suspended or modified “to the extent that is strictly required” as provided in Article 15’).

83 For example, Case of A and Others v United Kingdom, App No 3455/05 (ECtHR, 19 February 2009) (declaring the UK's derogation from art 5 ECHR to be invalid on the grounds that it was discriminatory and thus that there had been a violation of art 5 ECHR).

84 Text to nn 47–55.

85 GC IV (n 54) arts 41–43 and 78.

86 Status-based targeting under IHL was explained at text to n 50.

87 Text to nn 20–21.

88 Text to nn 73–74.

89 Goodman, Ryan, ‘The Power to Kill or Capture Enemy Combatants’ (2013) 24 European Journal of International Law 819, 827–28 (‘one might accept an RUF [restraint on the use of force against lawful targets] standard only in so far as it applies to commanders or high-level military planners. On this view, an individual soldier in the heat of battle should not have to make split-second decisions about whether to wound rather than kill or to injure lightly rather than gravely’).

90 Text to n 21.

91 HRC (n 65) [2].

92 Text to nn 22–24.

93 Ireland v United Kingdom, App No 5310/71 (ECtHR, 18 January 1978) para 207.

94 A and Others (n 83) para 184.

95 Droege (n 7) 536.

96 ibid 536–37.

97 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) (entered into force 7 December 1978) 1125 UNTS 609 (AP II).

98 Kretzmer (n 80) 40–45; Garraway, Charles, ‘“To Kill or Not to Kill?” – Dilemmas on the Use of Force’ (2009) 14 Journal of Conflict and Security Law 499.

99 See n 4 for examples of such cases.

100 See, eg, Zegveld, Liesbeth, The Accountability of Armed Opposition Groups in International Law (Cambridge University Press 2002) 51–55. There is, however, an evolving school of thought that considers IHRL as binding on non-state armed groups: see, eg, Clapham, Andrew, ‘Human Rights Obligations of Non-State Actors in Conflict Situations’ (2006) 88 International Review of the Red Cross 491, 495–509; Tomuschat, Christian, ‘The Applicability of Human Rights Law to Insurgent Movements’ in Fischer, Horst and others (eds), Krisensicherung und Humanitärer Schutz – Crisis Management and Humanitarian Protection: Festschrift für Dieter Fleck (Berliner Wissenschafts-Verlag 2004) 573.

101 For examples of the two opposing camps in this debate, see Goodman (n 89) (arguing that such a duty currently exists in IHL); Ohlin, Jens D, ‘The Duty to Capture’ (2013) 97 Minnesota Law Review 1268 (arguing that such a duty does not currently exist in IHL).

102 Melzer (n 37) 17.

103 ibid 80.

104 ibid 78–79 (citations omitted).

105 See, eg, Akande, Dapo, ‘Clearing the Fog of War? The ICRC's Interpretive Guidance on Direct Participation in Hostilities’ (2010) 59 International & Comparative Law Quarterly 180, 191 (stating that section IX ‘will probably be the most controversial aspect of the ICRC's approach in the Interpretive Guidance’); Schmitt, Michael N, ‘The Interpretive Guidance on the Notion of Direct Participation in Hostilities: A Critical Analysis’ (2010) 1 Harvard National Security Journal 5, 39 (‘[p]ossibly the area of the Interpretive Guidance that attracted the greatest criticism among the experts who participated in the DPH [direct participation in hostilities] Project’).

106 See, eg, Kleffner, Jann K, ‘Section IX of the ICRC Interpretive Guidance on Direct Participation in Hostilities: The End of Jus in Bello Proportionality as We Know It?’ (2012) 45 Israel Law Review 35; Akande, ibid 191–92; Parks, W Hays, ‘Part IX of the ICRC “Direct Participation in Hostilities” Study: No Mandate, No Expertise, and Legally Incorrect’ (2010) 42 NYU Journal of International Law and Politics 769, 828; Schmitt, ibid 39–43; Fenrick, William J, ‘ICRC Guidance on Direct Participation in Hostilities’ (2009) 12 Yearbook of International Humanitarian Law 287, 298–99.

107 Schmitt (n 26) 835.

108 Akande (n 105) 192 (‘the view may be taken that IHL has already determined the range of persons against whom lethal force may be used and this determination is already based on ground of military necessity. Therefore, no further and more specific restraints exist with regard to who is subject to lethal force’).

109 There is some support for the approach of the ICRC, however: see, eg, Goodman (n 89); Geiß (n 11); Melzer, Nils, Targeted Killing in International Law (Oxford University Press 2008) 288–96 (writing in a personal capacity); Pictet, Jean, Development and Principles of International Humanitarian Law (Martinus Nijhoff 1985) 75.

110 Text to n 104.

111 See the criticisms on this basis of Schmitt and Akande at nn 107–08.

112 See, eg, HRC, Suarez de Guerrero v Colombia (1982) Communication No R11/45, UN Doc Supp No 40 (A/37/40), paras 13.2–13.3 (interpreting ICCPR, art 6(1)); McCann and Others v United Kingdom, App No 18984/91 (ECtHR, 27 September 1995), paras 145–214 (interpreting ECHR, art 2(2)).

113 Milanović, Marko, ‘Norm Conflicts, International Humanitarian Law, and Human Rights Law’ in Ben-Naftali, Orna (ed), International Humanitarian Law and International Human Rights Law (Oxford University Press 2011) 119.

114 Constantin von der Groeben, The Conflict in Colombia and the Relationship between Humanitarian Law and Human Rights Law in Practice: Analysis of the New Operational Law of the Colombian Armed Forces’ (2011) 16 Journal of Conflict and Security Law 141, 150.

115 ibid 151.

116 ibid 154–55.

117 ibid 156.

118 In the Colombian example, however, this is undermined by the infrequency with which the advisory committee meets to consider the applicable legal framework: ibid 156–57.

119 GC III (n 4) arts 21 and 118 (on POW internment) and GC IV (n 54) arts 42–43 and 78 (on civilian internment).

120 GC III (n 4) art 5 and AP I (n 29) art 45(1) provide for a ‘competent tribunal’ where doubt arises as to whether a person is entitled to POW status. This is not, however, designed to review the necessity of internment. Indeed, the assumption under those articles is that persons will be claiming POW status (and thus be subject to internment): see Corn, Geoffrey S, ‘Enemy Combatants and Access to Habeas Corpus: Questioning the Validity of the Prisoner of War Analogy’ (2007) 5 Santa Clara Journal of International Law 236, 258–59.

121 GC IV (n 54) arts 43 and 78.

122 ICCPR (n 61) art 9(4); ECHR (n 61) art 5(4); ACHR (n 61) art 7(6).

123 See, eg, Olson, Laura M, ‘Practical Challenges of Implementing the Complementarity between International Humanitarian and Human Rights Law – Demonstrated by the Procedural Regulation of Internment in Non-International Armed Conflict’ (2009) 40 Case Western Reserve Journal of International Law 437; Pejic, Jelena, ‘Procedural Principles and Safeguards for Internment/Administrative Detention in Armed Conflict and Other Situations of Violence’ (2005) 87 International Review of the Red Cross 375.

124 See, eg, Arimatsu, Louise, ‘The Democratic Republic of Congo: 1993–2010’ in Wilmshurst, Elizabeth (ed), The Classification of Conflicts in International Law (Oxford University Press 2012) 199–200 (noting that the absence of IHL rules regulating detention in non-international armed conflicts had enabled all sides in the conflicts on the territory of the Democratic Republic of Congo ‘to claim wide powers of detention and to define the terms of detention’); Françoise Hampson, ‘Afghanistan 2001–10’ in Wilmshurst, ibid 242 (discussing the deficient regulation of detention in the conflict in Afghanistan); HRC, Report of the Working Group on Arbitrary Detention: Addendum, Mission to Colombia (1–10 October 2008), UN Doc A/HRC/10/21/Add.3 (16 February 2009), para 63 (noting that the Colombian army had carried out mass arrests in rural areas where there was known guerrilla activity); HRC, Concluding Observations of the Human Rights Committee: Sri Lanka, UN Doc CCPR/CO/79/LKA (1 December 2003), para 13 (criticising the Sri Lankan government's practice of administrative detention).

125 See, eg, ICCPR (n 61) art 9; ECHR (n 61) art 5; ACHR (n 61) art 7.

126 This was the case during the non-international armed conflict phase in Iraq, for example: see Bill, Brian J, ‘Detention Operations in Iraq: A View from the Ground’ in Pedrozo, Raul A (ed), The War in Iraq: A Legal Analysis (2010) (Vol 86, US Naval War College International Law Studies) 416. See also the recent Copenhagen Principles on the Handling of Detainees in International Military Operations, which drew from the GC IV internment regimes: Hill-Cawthorne, Lawrence, ‘The Copenhagen Principles on the Handling of Detainees: Implications for the Procedural Regulation of Internment’ (2013) 18 Journal of Conflict & Security Law (forthcoming).

127 See, eg, Pejic (n 5) 95–96.

128 Melzer (n 37) 32–33.

129 This was the approach taken by the UK during the ‘Troubles’ in Northern Ireland, when it introduced its internment regime and derogated from art 5 ECHR to allow for this. This was accepted by the ECtHR: see Ireland v United Kingdom (n 93); Lawless v Ireland (No 3) App No 332/57 (ECtHR, 1 July 1961).

130 Al-Jedda v United Kingdom App No 27021/08 (ECtHR, 7 July 2011), paras 99 and 102 (stating that the rules on detention in ECHR art 5 remained fully applicable during a non-international armed conflict, thus excluding a state party from interning, unless that state derogates from ECHR art 5(1) or that provision is explicitly set aside by a binding Security Council resolution).

131 The ECtHR, for example, noted that the non-judicial review procedures introduced by the UK in Northern Ireland did not satisfy ECHR art 5(4): Ireland v United Kingdom (n 93) para 200.

132 For example, HRC (n 65) para 16; ACHR (n 61) art 27(2); Habeas Corpus in Emergency Situations (Arts 27(2), 25(1) and 7(6) American Convention on Human Rights) (1987) Inter-Am Ct HR, Advisory Opinion OC-8/87, (Ser A) No 8, paras 42–44.

133 It must be borne in mind that the vague provisions on review of internment in GC IV have been developed by the International Criminal Tribunal for the former Yugoslavia (ICTY) in its jurisprudence: see, eg, ICTY, Prosecutor v Zejnil Delalić, Appeals Judgment, IT-96-21-A, 20 February 2001, [329] (stating that the reviewing authority must have the power to order release).

134 Ireland v United Kingdom (n 93) paras 215–21. The Inter-American Commission on Human Rights adopted the slightly different approach to interpreting the IHL and IHRL rules here in a way that purports to reconcile the two: Coard et al v US, Case 10.951, Report No 109/99, 29 September 1999, paras 45–59.

135 Pejic (n 5) 87; Rodley, Nigel and Pollard, Matt, The Treatment of Prisoners under International Law (3rd edn, Oxford University Press 2009) 490–91.

136 See above at n 127.

137 Inter-American Commission on Human Rights, ‘Report on Terrorism and Human Rights’, OEA/Ser L/V/II 116, doc 5 rev 1, corr (2002), Ch III paras 142–43.

138 ibid para 146.

139 ibid para 146. See also Inter-American Commission on Human Rights, Djamel Amezine v US, Report No 17/12, Petition P-900-08, Admissibility Decision, 20 March 2012, para 28 (regarding a petition from a Guantanamo detainee, the Commission stated that ‘the IACHR has consistently asserted that in situations of armed conflict, both international human rights law and international humanitarian law apply. Although international humanitarian law is the lex specialis for determining states’ obligations in these situations, in certain circumstances, its norms may not provide sufficient protection for the rights of the persons affected').

140 The primary/secondary rule distinction is usefully summarised in Crawford, James, ‘The ILC's Articles on Responsibility of States for Internationally Wrongful Acts: A Retrospect’ (2002) 96 American Journal of International Law 874, 876–79.

141 ILC, Second Report on State Responsibility (1970) 2 Yearbook of the International Law Commission, UN Doc A/CN./233, 178 (‘It is one thing to define a rule and the content of the obligation it imposes and another to determine whether that obligation has been violated and what should be the consequences of that violation’).

142 See, eg, CMS Gas Transmission (n 70); Continental Casualty Co (n 70). For an overview of the case law of investment tribunals regarding pleas of necessity, see Kurtz, Jürgen, ‘Adjudging the Exceptional at International Investment Law: Security, Public Order and Financial Crisis’ (2010) 59 International & Comparative Law Quarterly 325.

143 Whether this is a valid distinction to make is beyond the scope of this article. However, it must be noted that the rigid separation between the primary and secondary rules is not universally supported: see, eg, Sempra Energy International v Argentine Republic, ICSID Case No ARB/02/16, Award, 28 September 2007, para 376; Bodansky, Daniel and Crook, John R, ‘Symposium: The ILC's State Responsibility Articles, Introduction and Overview’ (2002) 96 American Journal of International Law 773, 780–81.

144 See the references supporting this view above at text to nn 44–45.

145 ibid.

I am very grateful to the anonymous reviewers for comments on earlier drafts. An earlier version of this article was presented at the 7th Annual ICRC/Minerva Conference on International Humanitarian Law in Jerusalem in December 2012. I am grateful for the comments received there. The views expressed, as well as any errors or omissions, are the responsibility of the author alone.

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Israel Law Review
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