Joint series: Where IHL and IHRL intersect - Part II of Ken Watkin's guest post

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 second 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.

Read Part I here.

Available Options

Last week, I described  the “exclusionary” approaches to the application of international humanitarian law (IHL) and international law human rights law (IHRL), which assume that one body of law will apply to the exclusion of the other. I also described how the approaches taken by the United States and Canada differ from those taken by European nations, the latter approach being influenced, in large part, by decisions of the European Court of Human Rights. However, the widely and often loudly debated exclusionary approaches do not actually represent how the law is being applied, particularly in a North American context. The reality of contemporary conflict is that both normative frameworks often need to be relied on concurrently. The application of human rights based norms occurs less through consideration of IHRL treaty law obligations than by operation of customary law obligations (both IHRL and IHL), the application of domestic law, or as a matter of policy. There is increasing recognition that Common Article 3 and Article 75 of Additional Protocol I apply as a matter of customary international law to international operations. Article 75 was clearly influenced by the 1948 Universal Declaration on Human Rights and the 1966 International Covenant on Civil and Political Rights. As then Professor Christopher Greenwood noted, the relationship between IHL and human rights law “is expressed in the adoption of major human rights principles in Article 75 AP I” [Christopher Greenwood, “Scope of Application of Humanitarian Law”, in Dieter Fleck, ed., The Handbook of International Humanitarian Law (2nd ed., 2008), 74, Rule 254.] Significantly, these human rights norms must be applied regardless of the geographic location of the armed conflict, thereby avoiding the intractable debate regarding the extra-territorial application of IHRL treaty law.

In a 2011 press release former Secretary of State, Hillary Clinton, indicated that out of a sense of legal obligation, the US would adhere to the norms of Article 75 of Additional Protocol I in international armed conflict for the treatment of detainees. While it has been left unclear whether this statement acknowledges Article 75’s customary law status, the language of “obligation” does raise the issue of “opinio juris”. Lawyers who served with previous administrations have also made references to the safeguards provided in Article 75. When combined with the judgment in theHamdancase, where a plurality of the US Supreme Court ruled Article 75 applied as a matter of customary international law to the non-international armed conflict with Al Qaeda, there is some indication that the US position may be moving towards an application of human rights norms as part of humanitarian law. International humanitarian law remains the governing “lex specialis”, but there is a greater recognition that human rights norms exist within that specialized body of law.

The dialogue regarding the extra-territorial application of human rights law has unfortunately been limited by reference to IHRL in a treaty law context.  The US Restatement of the Law: The Foreign Relations Law of the United States indicates that customary human rights law includes protection from murder, torture, or other cruel, inhuman, or degrading treatment or punishment or prolonged arbitrary detention. While it may be tempting to focus on challenges related to identifying the full substance of customary human rights law there is far more to be gained in humanitarian terms in emphasizing its universal application. Importantly, from a practical perspective the 2013 US Army Operational Law Handbook makes reference to an extra-territorial extension of these customary human rights norms [p. 48, para. B].

What is often missed in the high level IHL/IHRL theoretical debate is the degree to which domestic courts undertake human rights analysis regarding armed conflict related issues. In the US, the courts have been used to challenge a variety of issues related to contemporary armed conflict including targeted killing through the use of drones and the detention of “enemy unprivileged belligerents” at Guantanamo Bay. The influence exerted by domestic human rights law cannot be overstated. The 2013 change in the US policy on drone use was prompted by the controversy surrounding the targeting of American citizens. There appears to have been ready acceptance that American citizens enjoyed extra-territorial constitutional protection. The extra-ordinary policy decision was to extend the protection being offered to all potential targets regardless of citizenship. The reference in the Drone Policy to this step being one that “respects the inherent dignity of every human life” has a particular resonance with a universal application of human rights norms.

Questions can be asked about how realistic the US drone policy standard is in requiring there must be a near-certainty that no civilians will be killed or injured before a strike is conducted, or whether this policy has application to attacks in support of insurgencies occurring in Somalia, Yemen and Iraq. However, the application of a more “human rights like” approach could also be seen in the frequent use of capture rather than kill operations in the final phase of Coalition operations in Iraq. The reliance on human rights “norms” often arises in situations of governance (i.e. occupation, insurgency) where there is considerable strategic advantage in avoiding the alienation of the local population.  Capture missions not only facilitate that goal, they also lead to more effective intelligence led operations. While a policy based approach may not fully embrace human rights standards, and is subject to rapid change, human rights based norms are having an impact on the conduct on contemporary operations. 

As can be seen in the recent United Kingdom case, Serdar Mohammed and Ministry of National Defence, domestic human rights standards of the territorial State within which an armed conflict is occurring can also form a basis for legal challenges being brought by human rights advocates. That case raises a number of interesting issues relating to the operational feasibility of relying on the domestic human rights law of a failed or failing State to set standards for the actions of intervening military forces. In terms of potentially broader applicability, a distinction can be drawn between that case and the Canadian Amnesty International Case. As the UK court indicated it could not follow the Canadian jurisprudence, and rather was obliged to extra-territorially apply the European Convention of Human Rights. The court also rejected a number of traditional sources, including some emanating from the ICRC, in reaching the conclusion there was no authority to detain found in either IHL treaty law, or customary international law. It is not likely these sources will be as easily discounted in other jurisdictions. In the opinion of the court this left the only authority to detain being the host state’s own domestic law and UNSCRs. In contrast, the American and Canadian legal systems have already demonstrated a greater willingness to accept the application of customary IHL.

Dealing with Overlap

The reality is that military forces regularly apply both IHL and human rights obligations during the conduct of hostilities. Human rights may be applied as a matter of law through treaty and customary law norms reflected in IHL (i.e. GC IV, AP I, art. 75, Common art. 3), or similarly as part of the extra-territorial application of IHRL. Clearly, States and their military commanders may make a policy decision to apply a human rights based normative framework in lieu of IHL depending upon the threat being faced, or mission being accomplished. Human rights based norms have long been incorporated in rules of engagement, particularly for dealing with civilians not taking a direct part in hostilities. This does not mean that the separation of what might be considered law enforcement levels of force from those associated with conduct of hostilities will not be challenging. For example, the manner in which self-defence is exercised can depend upon unique national views regarding its scope. It is also sometimes not clear how well the concept of imminence associated with national self-defence is differentiated from its human rights based counterpart. However, that is not usually the case regarding a tasking to maintain law and order. 

The degree to which there is an overlap between IHL and IHRL will ultimately depend upon the interpretation of the breadth of each body of law. As Coalition participation in Afghanistan winds down, that debate will increasingly focus on “one off” exercises of State self-defence. These operations will likely prompt a deeper analysis of the Tadic case threshold for the existence of an armed conflict, which was not developed in the context of the exercise of self-defence. Consideration of the Abella case, and treaty based standards [Common art. 3 and AP II, 1(2)-e.g. not a “situation of internal disturbance and tensions”]; a more informed discussion accepting that insurgent and terrorist groups do not only organize in a hierarchical fashion; and the application of other context specific criteria such as nature of the target (Embassy, warship-representative of State power), the weapons used in the attack, and the type of forces, weapons, tactics, etc. reasonably required to defeat the threat (missiles, mortars, heavy weapons, airpower- with State armed forces having to engage in “combat”), will likely to lead to a broader application of IHL norms. What must be avoided are interpretations of the law that suggest the exercise of self-defence against non-State actors falls under its own unique legal framework where conduct of hostilities rules are applied even if the existence of an armed conflict is not established. Overall, the circumstances under which the IHL/IHRL interface will have to be resolved is likely to increase.

The broad application of IHRL to situations that are clearly armed conflicts may have a number of impacts. First, to better reflect the reality facing soldiers on the ground the European human rights tribunal system will likely face increasing pressure to incorporate IHL standards into its analysis of human rights.  A requirement to recognize the existence of armed conflict was experienced in the 1990s in respect of United Nations peacekeeping operations. This ultimately led to the development of “robust” peacekeeping with a broader authority to use force in “defence of the mission”, as well as the adoption of a Secretary-General’s Bulletin that included guidance on the application of IHL to peacekeeping operations. Secondly, there has been little analysis undertaken to date on the impact of only applying a human rights regime to situations involving levels of violence not ordinarily experienced in the peacetime environment for which that body of law was developed. As is evident from the United Kingdom experience in Northern Ireland, human rights based law enforcement is capable of being applied in security environments involving considerable violence and disorder. However, there are limits in its ability to do so without fundamentally changing its character. For example, the human rights paradigm is unlikely to be applied comfortably to the conduct a strategic air campaign, or other common military operations during armed conflict that rises above a low level insurgency. Although the Finogenov and Others v. Russia case indicates some acceptance of this challenge with respect to terrorism, there inevitably would be a greater requirement to accept the likelihood of collateral damage under a human rights framework if it is to be generally applied to hostilities.

Finally, the participation within a Coalition by military forces, which are subject to a regional human rights supervisory regime that uniquely applies human rights law, will undoubtedly have some influence on operations as accommodations are made to address their unique legal requirements. Military commanders are experienced in making those types of adjustments, which can occur for a variety of reasons including nation specific interpretations of the law and policy based caveats.  However, in situations where national or regional legal obligations limit the participation of military forces during operations requiring the application of both IHL and IHRL that may ultimately impact on the missions or roles to which those forces can be assigned. This, in turn, can limit the protection they can provide to the civilian population.

Other posts in this series:

Introduction by the ICRC's Tracey Begley

Lawfare's Bobby Chesney on when IHL ceases to apply

Canadian expert, Ken Watkin, on the overlap of IHL and IHRL

Columbia Law School's Sarah Cleveland on harmonizing standards in armed conflict