Throughout the month of September, Intercross, along with two other blogs - Lawfare and EJIL:Talk! - is running a series of articles following up on this summer’s 2nd annual Tansatlantic Dialogue on International Law and Armed Conflict, which took place in Oxford in July. Today, Brigadier General Kenneth "Ken" Watkin brings us the first of a two-part article on the overlap between IHL and IHRL. Ken, who served as a JAG with the Canadian Armed Forces and is an expert on military law, offers his take from a North American perspective. The views expressed in this article are his own and do not necessarily reflect those of the ICRC or the other blogs taking part in this series.
Introduction to Part I
It is possible to address the perennial debate about the relationship between international humanitarian law (IHL) and international human rights law (IHRL) from a number of perspectives. In these posts, I would like to set out some of the issues that deserve close attention. First, there is the strategic theoretical conflict that continues to play out between the advocates of exclusionary applications of IHL and IHRL. This is a conflict that is firmly grounded in different views emanating from each side of the Atlantic. Secondly, there are the different perspectives brought to this issue based on the unique North American (in this context the United States and Canada) and European legal systems, as well as differing geographic and experiential factors. Thirdly, there is the ongoing reliance on customary international law, domestic law and policy to assist in resolving what appears on its surface to be an intractable theoretical impasse. Finally, notwithstanding the exclusionary debate the reality is that military forces are applying both IHL and IHRL norms during contemporary operations, although approaches that seek to uniquely apply one legal framework over the other will continue present operational challenges.
The requirement to consider human rights during contemporary military operations arises in a number of ways. Often it occurs in the context of the use of force, particularly when military forces interface with civilians who are not direct participants in hostilities. Operations can involve the detention of insurgents, terrorists, and persons providing indirect support to organized armed groups; the quelling of civil disorder and unrest; and the arrest of members of criminal organizations taking advantage of the general disorder often associated with armed conflict. These situations can arise during inter-State conflict (i.e. occupation), as well as comprise a significant component of counterinsurgency and counterterrorism operations.
The involvement of military forces in law enforcement style operations frequently occurs during insurgencies where a “police primary” approach has proven to be particularly effective. Where there is an overlap of IHL and IHRL the latter legal regime is often favoured as a matter of policy. Similarly, human rights based law enforcement will continue to be the default position for the United States, Canada, Europe and other States dealing internally with the threat of transnational violence posed by non-State actors. This can include jihadists returning home from foreign battlefields. As was demonstrated in President Obama’s Drone Speech, human rights-based norms may also be relied on as a matter of policy during armed conflict when seeking to exert additional control over the force. This occurs not only in the context of drone strikes, but also with the use of Special Forces to carry out the arrest of persons in third countries who might be considered to be direct participants in an ongoing armed conflict with jihadist organized armed groups.
Little has occurred in the past few years to suggest there has been a reconciliation of the “hard” positions adopted by those who favour exclusionary approaches towards the application of IHR and IHRL. At times almost verging on an ideological debate, this impasse is perhaps most graphically reflected in different approaches applied in the European and North American continents. The fault line between these approaches is represented in two areas of dispute: the principle of lex specialis derogate lex generali, and the issue of the extra-territoriality of IHRL treaty law. Efforts by those seeking to apply alternate interpretations of lex specialis in order to challenge the plain reading of the Nuclear Weapons Case (which favours the application of IHL) have not been successful to date. It is unlikely that over the short term this lex specialis debate, which appears designed to insert a greater role for IHRL will have significant impact on the alternative view that is firmly grounded in IHL displacing IHRL. This dialogue does not seem to have convinced the United States to change its traditional interpretation that IHL operates during armed conflict to exclude the application of human rights law, although there is an emerging view that “[w]here the LOAC is silent or its guidance inadequate, specific provisions of applicable human rights law may supplement the LOAC” (Operational Law Handbook, 2013, The Judge Advocate General’s Legal Center & School 47, para. II. B. 2 & 3).
The United States and Canada appear to look at the extra-territorial application of human rights obligations very differently than Europe. While the issue of the interface between IHRL and IHL arises from the International Court of Justice case law it is the extra-territorial application of the European Convention on Human Rights that has particularly focused international attention on extending human rights law protection during contemporary international operations. The United States has been consistently clear in its rejection of any extra-territorial application of human rights treaty law. The Canadian position does not appear to have been as clearly stated. However, significantly, in 2008 the Canadian Federal Court of Appeal ruled in litigation involving the transfer of detainees in Afghanistan that the domestic Charter of Rights and Freedoms did not have extraterritorial application to that conflict, and “[t]here is no legal vacuum, considering that the applicable law is international humanitarian law” (Amnesty International Canada v. Canada (Chief of the Defence Staff), 2008 FCA 401,  4 F.C.R. 149, para. 36). The lower court ruling (Amnesty International Canada v. Canada (Chief of the Defence Staff)(F.C.), 2008 FC 336,  4 F.C.R. 546, paras. 239-240) had also rejected the idea there is broad application of IHRL based on the United Nations commentaries. While the question of the extension of domestic human rights law in situations where there is no functioning territorial government is left to another day it is clear there has been judicial reluctance to extend the operation of domestic human rights law, particularly where IHL is available to fill any perceived void.
Conversely, from a European perspective the exclusionary nature of the IHL/IHRL debate is grounded in the European Court of Human Rights approach of looking at international conflict exclusively through a human rights lens regardless of the intensity of the violence, or the nature of the conflict in question. Without a meaningful engagement on how IHL interacts with IHRL that forum is unlikely to provide guidance on how to reconcile the overlap between these two bodies of law. The Inter-American court system has demonstrated greater willingness to at least address the application of IHL norms, however, it is a system that remains firmly grounded in a human rights legal framework. As a result, the scene appears to be set for a continuation at a strategic level battle for the exclusive seizure of the jurisdictional high ground.
Different Worlds/Different Perspectives
In assessing the Canadian and American approaches it is helpful to look at a number of factors that distinguish those States from Europe. The courts of these North American countries, as with a significant number of the world’s States, are not subject to the oversight of regional human rights tribunals. The decisions of the Inter-American Commission of Human Rights, or the Inter-American Court of Human Rights may influence Canadian and American courts, however, the Inter-American bodies do not act in the capacity of an external supervisory body. The courts of Canada and the United States apply their own domestic constitutional and human rights obligations, and interpret the decisions of other legal jurisdictions (including European Court decisions) as is appropriate to their national legal systems. European Court of Human Rights decisions are not binding, and to date there is nothing to suggest Canadian and American courts will adopt the European exclusionary model that uniquely applies human rights law.
Further, the influence exerted by the European or Inter-American human rights tribunals can also be affected by their judgments being the product of particular regional treaty language. In this respect the International Covenant on Civil and Political Rights, which has broader application, may be more influential in a Canadian or United States legal context than the regionally based European Convention on Human Rights. What's more, the Canadian and American domestic legal frameworks address human rights differently. The analyses of human rights obligations by Canadian and United States courts can proceed along different paths within each country, as well as in relation to Europe. Significantly, the lack of an external European style supervisory tribunal mechanism that looks exclusively through a human rights lens provides space within which the North American courts may more readily consider the application of IHL. This willingness has been already demonstrated in the Hamdan v. Rumsfeld, Secretary of Defense, et. al., 548 U.S. 557 (2006) and Canadian Amnesty International Canada cases.
These are not the only systemic differences. While there appears to be little discussion of the issue, it seems inevitable that the predominantly civil code-based European legal system, which incorporates a different analytical approach than the primarily common law-based analysis applied in Canada and the United States, will influence how human rights law is interpreted from a European perspective. The result may be a greater willingness in a North American context to consider the customary international law basis for the conduct of operations, rather than searching for a textual authority (in either treaty law or domestic law) to justify military action. European and North American approaches may also differ because of geographic and experiential factors, or as a result of different perceptions of the nature of the threat. In 1951 Richard Baxter noted that the United States, the United Kingdom, Canada and Australia prosecuted war crimes at the end of World War II as violations of international law, while France, Norway, and initially the Netherlands, tried war criminals for offences against municipal law. In his view it was not unnatural in respect of the latter States (having had the experience of enemy occupation) that recourse would be made to “the convenient instrument of local law rather that to the long arm of the law of nations.” [Richard Baxter, “The Municipal and International Law Basis of Jurisdiction Over War Crimes”, in Humanizing the Laws of War (Detlev F. Vagts, et. al., eds., 2013), 62].
The United States and Canada have a long history of expeditionary military deployments, which appears to influence their greater reliance on IHL There is also a more ready acceptance of the extra-territorial operation of military justice systems superintended by military officers than in some other jurisdictions [see Second Report, the Turkel Commission, Part 2 Chap. B]. It is also not uncommon for these States to enter into Status of Forces Agreements with host nations (assuming there is a functioning State) to exclude the military forces from the domestic law of the territorial State where they are operating. This has historically meant IHL and the domestic military law of the intervening States are viewed as being the primary bodies of law regulating participation in armed conflict. Different perspectives on the nature of the transnational terrorist threat can be seen in the approaches adopted on each continent towards hijacked aircraft following 9/11. In North America reliance is placed on the United States/Canada defence arrangement, NORAD, to intercept aircraft while Germany, for example, chose to deal with the threat as one amenable to a policing response.