This is our final post in the joint series we've been running this month, along with our friends over at Lawfare and the European Journal of International Law (EJIL:Talk!), on topics discussed in July at a transatlantic workshop on armed conflict and international law in Oxford. Intercross is pleased to bring you this article by Guest Blogger, Guglielmo Verdirame - an Italian-born Professor of International Law at King's College London in the Department of War Studies and the School of Law. He was previously a university lecturer in law at the University of Cambridge, Faculty of Law, and a Fellow of the Lauterpacht Centre for International Law. He also practices as a barrister. The views expressed in this piece are his own. Thanks to all of the guest bloggers, who contributed to this great series! (See a full list of all posts below.) We hope to do it again next fall!
Applying human rights to armed conflict & the foundations of international law by Guglielmo Veridrame:
The relationship between theory and practice in international law eludes easy explanations. In the history of international law there are examples of ideas shaping practice. But at times the phenomenon of international law – with its complex mix of state practice, adjudication and politics – finds directions not foreseen by any theory.
The application of human rights law to armed conflict may be a case in point. It emerged over the last two decades from the decisions of international and domestic courts without being preceded by a reflection – by jurists, policy-makers or others – on how human rights could contribute to regulating armed conflict. Can this development be accommodated within the system of international law or does it in some way challenge its architecture?
In his seminal work on international relations, Raymond Aron writes that jurists and philosophers dealing with war need to ask themselves a fundamental question: ‘Must international law foresee or exclude the possibility of war?’
International lawyers today would probably reply that international law should not only foresee this possibility but also seek to regulate war. And this is indeed what international law has done for centuries.
But the correctness of this answer was by no means a foregone conclusion. Amongst those who thought that international law, and law in general, should not even contemplate the possibility of war was Immanuel Kant. War was, for Kant, the negation of law; the idea of a law of war would have struck him as a contradiction in terms.
The law of international organization rests on Kantian intuitions but, when it comes to war, the premises of international law are – or rather were – Grotian. It was Grotius who wrote at the beginning of the De Jure Belli ac Pacis:
It is so far from the truth to admit, as some contrive, that in war all laws cease, that on the contrary war must not be undertaken if not in the enforcement of law; nor must it be conducted if not within the bounds of law and faith. Demosthenes said well that war is waged against those who cannot be constrained judicially… for wars to be just they must be executed with no less conscientiousness than is required in judicial proceedings.
Paraphrasing Clausewitz, you might say that for Grotius, war was the continuation of litigation through other means.
In Grotius, as in the medieval just war tradition that reverberates in his writings, peace is the natural condition of humankind. The juridical notion of state of war, which was at the heart of the jus ad bellum before the Charter, played a twofold role: it ensured the distinctness of the regulation of war and it protected the law of peace from the fact of war. The distinction between war and peace and the subjection of war to law were deeply intertwined.
International law may have all but dispensed with the notion of state of war after the Charter but the approach to war remained Grotian in at least two ways. Firstly, international law continued to foresee the possibility of war, and places war under the law, rather than treat it – as Kant would have preferred – as the negation of law. Secondly, before the challenge posed by human rights law, the war/peace distinction remained foundational.
The regulation of war was also defined by a balance between idealism and realism. Laws designed for war must constrain conduct, but not be unachievable. The price for getting this balance wrong is irrelevance. According to Hobbes, this is what happens to natural rights in war. Contrary to a common misperception, Hobbes had very little to say about international relations. But his political theory rested on the very un-Grotian assumption that the natural condition of humankind is war. For Hobbes natural law applied in war (which he thought of principally as civil rather than inter-state war), but with an important qualification: the laws of nature, while ‘immutable and eternal’, ‘oblige in foro interno, that is to say, they bind to a desire they should take place; but in foro externo, that is, to the putting them in act, not alwayes’.
In other words Hobbes saw the attempt to apply natural rights to war as resulting in an impasse between obligation and possibility: between what must happen and what can happen.
I have just offered no more than a tasting of the philosophical complexity posed by the attempt to tame war through law. Now let us move on to the next tasting: an outline of how the application of human rights to war may challenge the foundations of the regulation of war in international law.
To many the famous passage in the Opinion on the Legality of the Use or Threat to Use Nuclear Weapons where the ICJ confirmed that the protection of human rights continues in war is an example of progressive adjudication. But with its terse statement of principle – ‘the protection of the ICCPR does not cease in times of war, except by operation of Article 4 of the Covenant whereby certain provisions may be derogated from in a time of national emergency’) – the ICJ also opened the door to the Hobbesian impasse. Now that they are in principle applicable in war, how do we make sure that human rights are also achievable and therefore relevant?
The Court may have thought that the answer was to be found in the lex specialis. However, the problems with the lex specialis were already clear in the way the Court handled the right to life in the Opinion. Consistently with the Court’s statement of principle on the application of human rights, the right not to be arbitrarily deprived of one’s life must apply in wartime too. But arbitrariness – the Court said – must be determined on the basis of the laws of armed conflict because of the lex specialis.
It will be recalled that the Court concluded that in extreme cases of self-defence it was not clear whether international law permitted the use of nuclear weapons. So there is, according to the Court, some way of conceiving the right to life which can apparently accommodate the instant pulverization of hundreds of thousands of human beings. Are we so sure that this approach is more progressive? Was it not better to proceed on the old basis – i.e. that war is a tragic social phenomenon where lives are lost in ways that can never be compatible with any conception of the right to life and that all the law can do is to alleviate the consequences of war? The idea that in principle the right to life applies in wartime may give us comfort but – to season the point with a bit of Marxism – it is the sort of ‘feel-good’ that derives from false consciousness.
As Ken Watkin set out in his contribution to this joint series of blogs, partly because of its jurisprudence on extra-territoriality, the ECtHR has gone further than any other court in promoting an approach to the regulation of war that is entirely focused on human rights. True, in the Al-Skeini judgment, the ECtHR seemed to take IHL into account but it is no more than hat-tipping. IHL was discussed in the facts section of the judgment under the heading ‘Relevant International Law Materials’. By the time it had come to the law section, the Court had basically all but forgotten about IHL.
What I have described as the Hobbesian impasse also underlies the ECtHR jurisprudence on war. Ever since Bankovic, the ECtHR has referred to the capacity of states to respect rights in concrete situations. In Bankovic the Court was keen not to diminish the norm (i.e. human rights) so that it could fit the fact (i.e. war). It held that the ‘wording of article 1 does not provide any support for the applicants’ suggestion that the positive obligation in Article 1 to secure “the rights and freedoms defined in section 1 of this Convention” can be divided and tailored in accordance with the particular circumstances of the extra-territorial act in question’. In other words, norms should apply to facts, not facts to norms.
In Al-Skeini, however, the Court changed position. This is the relevant passage:
It is clear that, whenever the State through its agents exercises control and authority over an individual, and thus jurisdiction, the State is under an obligation under Article 1 to secure to that individual the rights and freedoms under Section 1 of the Convention that are relevant to the situation of that individual. In this sense, therefore, the Convention rights can be “divided and tailored”.
The judgment of the Grand Chamber in Al-Skeini had a profound effect on the judgment of the UK Supreme Court in the Smith v MoD case.  The UK Government maintained that state parties had never intended the Convention to apply to armed forces operating outside their territory. In the Catherine Smith case, decided in 2010, the Supreme Court had found in favour of the Government by a majority of six to three. In the 2013 Smith decision, the majority of the Supreme Court found that, after the ECtHR Al-Skeini judgment, that view could no longer be maintained.
The ECtHR’s departure from Bankovic on the question of ‘dividing and tailoring’ rights was one of the factors underscored by the Supreme Court:
It was always going to be difficult to see how, if that was to be the guiding principle, it could be possible to accept that a state’s armed forces abroad in whatever circumstances were within the jurisdiction for the purposes of article 1 as its ability to guarantee the entire range of the Convention rights would in many cases be severely limited.
The Supreme Court emphasizes the jurisdictional element and does not refer to the idea of relevance to the individual which featured in the Al-Skeini passage cited above. Indeed, if the point is to identify a jurisdictional limit in terms of Article 1 of the ECHR, the better criterion is that of what the state can do rather what is relevant to the individual.
The change from Bankovic to Al-Skeini indicates that the tension between norm and fact is being addressed by striking the balance closer to the fact and further away from the norm. This may well be the correct approach if the law is to ensure its relevance when faced with the reality of conflict. But is this a good thing from the point of view of human rights?
I very much doubt that. In addition to the omnipresent doctrine célèbre of proportionality, we now have a new method of rights-slicing: tailoring and dividing. But how should we tailor and divide? And, à propos, were human rights not supposed to be indivisible?
As I mentioned at the outset, one of the functions of the war/peace distinction was to preserve the law of peace from the fact of war. We may now be failing to do that. In order to ensure their relevance in war, we have made human rights less cogent and more malleable. Are these depleted human rights still liberal rights?
In the past some writers argued that international law needed to replace the war/peace dichotomy with a trichotomy: war, peace, and an intermediate state or status mixtus. This proposal had no success at the time, but we may have unwittingly resuscitated it.
I might be less concerned if I thought that these developments could be confined to the international plane – if, that is, the problem was that two bodies of treaty law previously thought of as distinct now need to be interpreted harmonically. But the problem may be viewed as exclusively affecting international law only where constitutional human rights exist as almost impermeable to international human rights. In many countries, however, for better or for worse, domestic human rights are open to developments in international human rights; in Britain, admittedly an anomalous case in a comparative constitutional sense, domestic human rights are entirely based on an international treaty. In these jurisdictions, the application of human rights to war – and, as we have seen, the way in which war transforms human rights – is not merely a question of treaty interpretation. It has constitutional significance.
Yet, the changes I have briefly described are already ingrained. We are not going back to the idea of two leges generales existing in parallel – one covering war, the other peace – anytime soon. We thus have to live with the idea of a lex generalis covering both situations, albeit modified (in ways still largely inscrutable) through the lex specialis.
So what to do? This is a matter for another blog. But here is a clue: we need a way of reinstating the distinction between war and peace that works within this new framework characterized by the role of human rights in the regulation of war. It is only by reinstating that distinction that we can avoid the peril of creating a monstrous hybrid that is too idealistic for war and too dismal for peace.
Other posts in this series:
* King’s College London and 20 Essex Street Chambers. The author is working on a longer version of the argument in this blog.
 R. Aron, Paix et Guerre entre les nations (1962) 111.
 Grotius, De Jure Belli ac Pacis (2nd ed., 1631), Proleg. at XVI.
 S. Neff, Hugo Grotius. On the Law of War and Peace (2012) 96.
 M. Mancini, Stato di guerra e conflitto armato nel diritto internazionale (2009).
 N. Malcolm, Aspects of Hobbes, (2002) 432 ff.
 T. Hobbes, Leviathan, (1651) Ch. XV.
Al-Skeini and others v the United Kingdom, ECHR (2011), 53 Eur. H.R. Rep. 589, paras 89-94.
Bankovic and others v Belgium and 16 other Council of Europe Member States, ECHR (2001), 41 International Legal Materials at 517.
 Ibid., para 75.
Al-Skeini, supra note 25, para. 137.
R (Smith) v Secretary of State for Defence, (2010) UKSC 29.
Smith and others (FC) v The Ministry of Defence, (2013) UKSC 41, at 17 para. 45
Ibid. para. 48.
 See G Verdirame, ‘Rescuing Human Rights from Proportionality’, in Rowan Cruft, S. Matthew Liao, Massimo Renzo (eds.), Philosophical Foundations of Human Rights (Oxford University Press, 2014).
 G. Schwarzenberger, ‘Jus Pacis Ac Belli? Prolegomena to a Sociology of International Law’, 37 AJIL (1943) 460; P. Jessup, ‘Should International Law Recognize an Intermediate Status between Peace and War?’; 48 AJIL(1954) 98–103.