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The Relationship between International Humanitarian Law and Human Rights Law in the African Commission’s General Comment on the Right to Life

Published on June 7, 2016        Author: 

In November 2015, the African Commission on Human and Peoples’ Rights (African Commission) adopted General Comment (GC) no. 3 on the right to life. The GC deals with a variety of issues surrounding the right to life, inter alia the death penalty, use of force in law enforcement and armed conflict, investigations and accountability, and extraterritoriality. The GC also considers the relationship between the African Charter on Human and Peoples’ Rights (ACHPR) and international humanitarian law (IHL):

“32. In armed conflict, what constitutes an ‘arbitrary’ deprivation of life during the conduct of hostilities is to be determined by reference to international humanitarian law. This law does not prohibit the use of force in hostilities against lawful targets (for example combatants or civilians directly participating in hostilities) if necessary from a military perspective, provided that, in all circumstances, the rules of distinction, proportionality and precaution in attack are observed. Any violation of international humanitarian law resulting in death, including war crimes, will be an arbitrary deprivation of life.”

This statement is interesting in respect of three elements: the concept of ‘arbitrariness’ with regard to acts of deprivation of life in armed conflict; the interpretive principle employed to connect the ACHPR and IHL; and the legal consequences arising from IHL violations when human rights law also applies. Before taking a closer look at all these points, it should be clarified that the conclusions drawn concern the IHL and human rights obligations of States, and do not necessarily extend to those of non-State actors.

Arbitrary Deprivations of Life in Armed Conflict

In the first place, the African Commission asserted that to determine whether a deprivation of life is arbitrary in armed conflict – and therefore in violation of Article 4 ACHPR – it is necessary to make reference to IHL. Such a stance echoes the International Court of Justice’s (ICJ) dictum in the Nuclear Weapons advisory opinion (para 25). The relevant rules the African Commission identified are those concerning the use of force against individuals and the principles of distinction, proportionality and precautions in attack, which apply in both international and non-international armed conflicts (Articles 48, 51, 57 AP I; 13 AP II; CIHL Study). That the protection of the right to life in connection to hostilities requires taking IHL rules into account has long been affirmed by human rights treaty bodies, particularly the Inter-American Commission and Court (inter alia IAComHR Abella, para 161; IACtHR Santo Domingo Massacre, paras 211‒236; also HRCtee Draft GC 36, para 63). Thus, the African Commission’s GC 3 consolidated an established interpretive trend, according to which IHL provides the yardstick to evaluate when use of force in the conduct of hostilities amounts to arbitrary deprivation of life in violation of relevant human rights norms.

The Principle of Systemic Integration

The second point worthy of note is that the African Commission refrained from invoking lex specialis to read the interplay between IHL and human rights law. Lex specialis, both an interpretive principle and a conflict-solution technique, indicates that:

“if a matter is being regulated by a general standard as well as a more specific rule, then the latter should take precedence over the former” (ILC Fragmentation Report, para 56).

 The ICJ employed it to contend that either an IHL specific norm (Nuclear Weapons, para 25) or IHL as a legal regime (Wall, para 106) is lex specialis with regard to human rights law. The lex specialis principle has been at times employed by the Inter-American Commission (inter alia Coard, para 42; Gregoria Herminia, para 20), whereas none of the other international bodies have resorted to it. Notably, the ICJ did not invoke it in a successive case where it dealt with the interplay between the two bodies of law (Armed Activities, para 216).

Commentators have extensively analysed, debated and criticised the use of lex specialis in relation to the interaction between IHL and human rights law (inter alia Prud’homme; Hampson, 558‒562; Milanović, Ch 5). Interestingly, some scholars highlighted that in Nuclear Weapons the ICJ did not actually employ lex specialis, but rather another principle of interpretation: systemic integration (d’Aspremont and Tranchez, 238‒241; similarly Gowlland-Debbas, 361). This principle, which is found in Article 31(3)(c) VCLT, provides that in the interpretation of a treaty:

 “[t]here shall be taken into account […] any relevant rules of international law applicable in the relations between the parties”.

 I find this viewpoint particularly convincing. When the ICJ stated that:

 “[t]he test of what is an arbitrary deprivation of life […] falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict” (Nuclear Weapons, para 25),

 it actually made use of systemic integration under the guise of lex specialis (d’Aspremont and Tranchez, 238). Indeed, it interpreted a human rights provision taking into account IHL rules, which is an application of the principle of systemic integration.

International bodies have constantly employed this principle to connect IHL and human rights law rules. They have done so implicitly (HRCtee GC 31, para 11), or by expressly invoking Article 31(3)(c) VCLT (IAComHR Molina, para 121; ECtHR Hassan, para 102), or on the basis of equivalent provisions included in their constitutive instruments, such as Article 29 ACHR (IACtHR Ituango Massacres, para 179) or Articles 60‒61 ACHPR (AComHPR DRC v Burundi et al, para 70). In GC 3, the African Commission followed the same path:

 “During the conduct of hostilities, the right to life needs to be interpreted with reference to the rules of international humanitarian law.” (para 13).

 It thereby confirmed that systemic integration, not lex specialis, is the appropriate interpretive principle to operationalise the relationship between norms of IHL and human rights law.

Concurrent Violations of IHL and Human Rights Law

The last point concerns the closing sentence of the above-quoted passage, in which the African Commission affirmed that an attack causing death in violation of IHL rules amounts to an arbitrary deprivation of life. This is a remarkable statement. For the first time, a human rights treaty body made it explicit that, when human rights law norms are placed in the background to favour the application of IHL norms, a breach of the latter entails a violation of the former. A similar reasoning may be found in the Human Rights Committee’s Draft GC 36 (para 63), not yet adopted, whereas it could only be inferred from previous case law (IACtHR Santo Domingo Massacre, paras 230, 237; ECtHR Hassan, para 105, with reference to the right to personal liberty). This constitutes the logical conclusion of the interpretive choice according to which the arbitrariness of a deprivation of life in armed conflict is to be determined with reference to IHL. Of course, the presupposition is that an act is simultaneously in breach of IHL and human rights law. The use of dum-dum bullets, for example, violates IHL but not necessarily human rights law.

In my opinion, it is possible to extract a more general principle concerning the relationship between rules of IHL and human rights law. In instances of norms competition, when a prohibitive human rights law norm is placed in the background in favour of a permissive IHL norm, a violation of the prevailing IHL norm entails a corresponding violation of the background human rights law norm. The result is that the latter re-emerges, bringing along relevant normative consequences. I will just consider here the implications this has for the right to a remedy.

Remedies in Armed Conflict

Individual reparations claims for alleged IHL violations often fail when directly brought in a State’s domestic courts (e.g. Varvarin case). This owes to the uncertainty surrounding the right to reparation under IHL. Articles 3 HC IV, 91 AP I, and corresponding customary rules provide that a State must pay compensation for the breaches of IHL it is responsible for. Several scholars contend that these norms grant victims a right to reparation directly enforceable at domestic level (Kalshoven, 835‒836; Zegveld, 512). State practice and case law is inconsistent in that regard, yet most domestic courts tend to deny such an entitlement to individuals (for an account, CIHL Study, 544‒545;  Henn, 617‒623). However, when a breach of IHL also results in a violation of human rights law, victims may seek redress on the basis of the latter.

All major human rights treaties include a provision concerning the right to an effective remedy (e.g. Articles 7(1)(a) ACHPR; 2(3) ICCPR), which translates to a State obligation to provide individuals with both procedural and substantive domestic remedies (AComHPR GC 3, para. 7). Victims may seek redress for human rights violations first in domestic courts and, if that fails and where possible, with the relevant human rights treaty body. The acknowledgment that a breach of the IHL targeting rules resulting in death amounts to an arbitrary deprivation of life opens the way to individuals for obtaining redress for IHL violations via the right to a remedy under human rights law. This may expand even further. The Inter-American Court indeed held that an attack which fails to comply with IHL rules and endangers the civilian population may amount to a breach of the rights to life and personal integrity (Article 4‒5 ACHR), even if nobody is killed or injured (Santo Domingo Massacre, paras 236‒237; similarly HRCtee Draft GC 36, para 63).

Outlook

The impact of the African Commission’s GC is possibly manifold. On the international plane, it may encourage other treaty bodies to make similarly general statements, so to consolidate the interpretation that, in the conduct of hostilities, the right to life is not violated as long as relevant IHL rules are complied with. A similar construal may extend to the right to liberty and security detention of civilians in armed conflict (in this vein ECtHR Hassan, paras 105‒106). At the national level, this perspective may persuade judges to consider whether alleged IHL breaches also amount to human rights violations, which would allow victims to bring claims directly in domestic courts. Overall, the African Commission’s GC may constitute a significant contribution to strengthen the enforcement of victims’ right to reparation for both IHL and human rights violations in armed conflict.

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Securing the Right to Life: A cornerstone of the human rights system

Published on May 11, 2016        Author: 

The right to life has been described as the ‘supreme’ or ‘foundational’ right. Efforts to ensure other rights can be of little consequence if the right to life is not protected.

In the broadest sense, the prohibition of the use of force except under narrowly defined circumstances, both in armed conflict and interpersonally, reflects a pre-occupation with the protection of this core human value. The criminal justice and other mechanisms of investigation are also aimed at ensuring the protection of life. The linkage of the term ‘right to life’ to a specific position in the debate about abortion in the North American context hardly does justice to the terrain covered by this concept.

The duty to respect and protect the right to life manifests itself on numerous terrains: The excessive use of force by law enforcement agencies or others (such as hit squads whose actions can be attributed to the state); the death penalty; the responsibility of states for the lives of those in their custody (for example in prisons); and the failure to exercise due diligence to protect members of the public from violence by other individuals or groups. The right to life also continues to apply during armed conflict. A violation of the right to life is irreversible. It is for this reason that it is important to underline that the protection of the right to life has two components: the prohibition of arbitrary deprivations of life, and accountability where they occur. A lack of accountability in itself constitutes a violation of this right.

The right to life is a well-established and developed part of international law, in treaties, custom, and general principles, and, in its core elements, in the rules of jus cogens. Its primacy and the central features of the prohibition on arbitrary deprivations of life are not contested. Nonetheless, in practice, life remains cheap in many parts of the world. This is true in the many armed conflicts that are raging, but also outside such conflicts, where police and others authorised or tolerated by states often use excessive force, or there is a failure to investigate homicides.

The great importance attached to this right is reflected in a flurry of recent developments in this field, aimed at setting out the norms more clearly or ensuring their better realisation. We have been pleased to be able to contribute to several of them: Read the rest of this entry…

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New Drone Report by UK Parliament’s Joint Committee on Human Rights

Published on May 10, 2016        Author: 

Following up on yesterday’s post on the Eye in the Sky, today the UK Parliament’s Joint Committee on Human Rights published an important new report on the UK’s resort to drone strikes. Most interestingly, the report contains a number of clarifications of the UK’s policy on drone strikes, on the basis of the evidence obtained by the Committee, especially in situations outside active armed conflict. One of the report’s conclusions is that the UK does, in fact, reserve the right to use drones outside armed conflict, and that such strikes would be governed by human rights law rather than the law of war, but that in limited circumstances such strikes could be lawful. The report also calls on the UK Government to respond with further clarifications. As a general matter the report is written clearly and the legal analysis is reasonably nuanced and rigorous.

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ECtHR Armani Da Silva v UK: Unreasonable Police Killings in Putative Self-defence?

Published on April 14, 2016        Author: 

Two weeks after the London public transport bombings of 7 July 2005, British law enforcement mistook the Brazilian electrician Jean Charles de Menezes for another suicide bomber. As he entered a subway carriage, specialist firearms officers killed him with a series of head shots in the mistaken belief that he was about to set off a bomb. The government’s Independent Police Complaints Commission determined that de Menezes was killed due to “very serious mistakes” that were avoidable. The London Metropolitan Police was prosecuted under the Health and Safety Act 1974 and convicted to pay a GBP 175,000 fine. Compensation claims by the family were settled through an ex gratia payment.

However, de Menezes’ family still brought the case to the European Court of Human Rights since none of the individual officers implicated in the killing were prosecuted. In Armani da Silva v. United Kingdom, the Court’s Grand Chamber has just held that the United Kingdom did not fail to uphold its procedural obligation under the right to life (Art. 2 ECHR) to effectively investigate the de Menezes shooting and prosecute the individual officers involved.

One of the central legal points of the judgment concerns the standards that human rights law establishes for handling killings in putative self-defence, where an attack exists only according to the mistaken belief of the law enforcement officer using force against the presumed attacker. Arguably, the Armani da Silva judgment got the standards wrong. Read the rest of this entry…

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Principle or pragmatism? The Supreme Court’s judgment in Keyu and others v Secretary of State for Foreign & Commonwealth Affairs

Published on December 24, 2015        Author: 

On 25 November, the Supreme Court held in Keyu and Others v Secretary of State for Foreign & Commonwealth Affairs [2015] UKSC 69 that the Foreign & Commonwealth Office was not under a duty, under Article 2 ECHR or domestic law, to hold an inquiry into the circumstances in which 24 unarmed rubber plantation workers were shot dead by British soldiers in 1948 during the emergency in Malaya. The issue in question, of when a state is under a duty to investigate historical events under Article 2 or 3 of the European Convention on Human Rights (ECHR), is increasingly relevant in a myriad of contexts today, including the holding of fresh inquests where new evidence has emerged (see the High Court of Northern Ireland’s recent judgment in Finucane’s (Geraldine) Application), accountability for death and mistreatment in the British colonies (see the Mau Mau litigation) and the prosecution of sexual offences carried out years ago. So what does Keyu add to this developing area?

The claim was brought under several grounds, and the judgment contains interesting dicta on a number of issues, including whether the Wednesbury ‘reasonableness test’ should be replaced by a proportionality test (on which there has been commentary elsewhere, see here), and the extent to which UK human rights jurisprudence should ‘mirror’ that of the ECtHR with regard to temporal jurisdiction. But the main argument in the case, and the focus of this post, is the claim brought under Article 2 ECHR. On this the Court was unanimous, albeit for different reasons.

The ECtHR’s criteria on temporal jurisdiction

In examining the Article 2 claim, the Supreme Court had to apply the complex and unique rules created by the European Court of Human Rights (ECtHR) to circumscribe the limits of its temporal jurisdiction in relation to deaths that took place before the state concerned became a party to the ECHR. The ECtHR has held that while it will not have jurisdiction ratione temporis over the substantive interference of Article 2 involved in such deaths by virtue of the non-retroactivity principle, the procedural obligation to conduct an effective investigation into the deaths is detachable from the substantive interference for the purposes of its jurisdiction ratione temporis (Silih v Slovenia). Read the rest of this entry…

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On Preventive Killing

Published on September 17, 2015        Author: 

If we wait for threats to fully materialize, we will have waited too long. We must take the battle to the enemy, disrupt his plans and confront the worst threats before they emerge. In the world we have entered, the only path to safety is the path to action. And this nation will act.

George W. Bush, 17 September 2002.

It seems to me that there are two different ways of understanding the targeted killing of UK citizens Reyaad Khan and Ruhul Amin by a Royal Airforce-piloted drone on 21 August 2015, in Raqqa, Syria. (Khan was the target of the strike, and Amin was also killed by it. Both Khan and Amin are described as “ISIL fighters.”)

The first poses some difficult constitutional and public law questions for the UK government, but does not require any kind of radical re-interpretation of international law governing the use of force.

The second way of understanding the strike amounts to a sea change in the UK’s legal position, and indeed aligns it with several US legal positions in the “war on terror” which, hitherto, no European state has formally embraced.

Read the rest of this entry…

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Tears in Our Eyes: Third State Obligations in International Law

Published on July 30, 2015        Author: 

In early January 2015 the Republic of South Korea sold 1.9 million tear gas canisters to Turkey. With this sale came much campaigning against it. Amnesty International’s “Korea, do not sell us tear gas” campaign received over 50,000 signatures of support. The goal of this campaign was to highlight how the Turkish police force has been and continues to be to this day reckless and excessive in its use of tear gas on certain domestic demonstrations. Reckless and excessive use which, according to data collected by the Turkey Human Rights Joint Platform, led to the death of 19 Turkish citizens between 2006 and 2013 — including four children.

The sale of such large quantities of tear gas to a country that has a proven track record of using it frequently and recklessly raises important questions of international law. It raises questions in particular with regard to the responsibility of third states for internationally wrongful acts and the standard of proof required to establish such responsibility. Put simply, did South Korea commit an internationally wrongful act when it sold tear gas to Turkey?

Tear gas and international law

The name tear gas encompasses a group of substances that irritate mucous membranes and cause stinging sensations and tears. The effect of tear gas is normally considered temporary for a healthy adult so long as they are able to breathe fresh air shortly after exposure. Fatalities have been caused when tear gas has been used in closed spaces, on unhealthy adults or the elderly, or when canisters have been fired directly at protesters.

The use of tear gas is prohibited in wartime both by the 1925 Gas Protocol and the 1993 Chemical Weapons Convention.  The 1993 Convention, however, explicitly includes a clause in Article 1(5), inserted at the insistence of the United States, stating that “Each State Party undertakes not to use riot control agents as a method of warfare.” Article II(7) of the 1993 Convention further defines a “Riot Control Agent” as “Any chemical not listed in a Schedule, which can produce rapidly in humans sensory irritation or disabling physical effects which disappear within a short time following termination of exposure.” This clause, by implication, signals a regime of permissibility for riot control agents — including tear gas — during peacetime. Read the rest of this entry…

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The Use of Force Against People Smugglers: Conflicts with Refugee Law and Human Rights Law

Published on June 22, 2015        Author: 

On 18 May, EU ministers agreed on a military operation (EU NAVFOR Med) that could comprise, in its final phase, the boarding, seizure and destruction of suspected migrant smuggling vessels, subject to approval by the UN Security Council. Negotiations before the Security Council appear to have halted until both the Libyan government in Tobruk and the ruling authorities in Tripoli give consent. Meanwhile, a diplomatic source involved in the EU internal talks on the matter stated that a military operation could be decided on 22 June at the Foreign Affairs Council in Luxembourg.

In earlier EJIL talk! posts, Melanie Fink and Sergo Mananashvili argued that a Security Council Resolution would be questionable under the law of the use of force. But a resolution would also raise issues of compliance with refugee and human rights law and thus would produce a norm conflict between a Security Council Resolution and other international law.

The Likely Need to Have Forces Close to the Libyan Shore

Let’s look at the most likely scenarios around the use of force, were the EU move forward and the UN Security Council to approve of the plans.

An earlier EU strategy paper had foreseen ‘intelligence, surveillance and reconnaissance; boarding teams; patrol units (air and maritime); amphibious assets; destruction air, land and sea, including special forces units.’ Since then, the EU’s High Representative for Foreign Affairs and Security Policy, Federica Mogherini, has pointed out that the operation would not include ‘boots on the ground’ in Libya. At the same time, it is clear that EU diplomats seek more than approval to destroy vessels intercepted at sea, and from which all migrants have disembarked. The EU seeks a UN resolution for destroy smuggling vessels before they have departed.

Identifying smuggling vessels before they have departed will be challenging without deploying people on the ground in Libya. Smuggling vessels can clearly be identified as such only at or shortly before the time they are being used for smuggling. Read the rest of this entry…

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Gray v. Germany and the Extraterritorial Positive Obligation to Investigate

Published on May 28, 2014        Author: 

Last week a chamber of the European Court of Human Rights decided Gray v. Germany, no. 49278/09. The applicants were the sons of a British man who died in the UK after a doctor gave him the wrong drugs on a house visit. The doctor was German, and was hired by the UK National Health Service to provide out-of-hours home service to NHS patients. The doctor returned to Germany after the applicants’ father’s death. After a criminal malpractice investigation was conducted in the UK, Germany refused to extradite the doctor on the basis that criminal proceedings would ex officio take place in Germany. Those proceedings were later summarily completed, with the doctor sentenced to a fine, without notifying the applicants that the case would be disposed of summarily. The applicants claimed that this violated the procedural limb of Article 2 ECHR, read jointly with the overarching Article 1 obligation to secure human rights.

For various reasons, the Court rejected the applicants’ claim on the merits. But what makes this case interesting is that neither the German government, nor the Court sua sponte, thought that there was any Article 1 jurisdiction issue in saying that Germany had the positive obligation to investigate an unintentional death that took place in the United Kingdom, and at that at the hands of a private individual. Look at just how broad this position is – broader, indeed, than what I have argued for, since in my view a positive obligation would only apply if the death took place in an area controlled by the state or with state involvement.

Again, neither the Court nor the German government apparently thought that any Article 1 problem arose, presumably because the doctor was on German territory even though the applicant’s father had been in the UK. This well shows how in the small, politically unimportant cases people just tend to follow the universalist impulse and are oblivious to the existence of threshold applicability problems. Note, however, that the Court must ex officio confirm that the Convention applies and accordingly mind that it has subject-matter jurisdiction. If the issue was raised perhaps the Court would have decided it differently, but even so the case stands for the proposition that ECHR states parties have the duty to investigate even accidental deaths that took place outside any area under their control if the alleged perpetrator is located in such an area.

Stated in these terms, the implications of such an expansive approach are I think clear. Remember Alexander Litvinenko’s assassination in London, ostensibly at the hands of Russian agents? His family took a case against Russia to Strasbourg, which (I’ve been told) is on standby while issues around possible inquiry proceedings are being resolved in the UK. Suddenly that case becomes much easier for the applicants – regardless of whether the radioactive poison was administered by a Russian agent, if the alleged perpetrator is in Russia then Russia would have an Article 2 obligation to investigate. Similarly, if say a British tourist killed somebody in Thailand but then managed to escape back to the UK, the family of the deceased person in Thailand would have Article 2 rights vis-à-vis the UK and the UK would have to investigate the death, at least if it refused extradition. And this approach would a fortiori apply to cases where there is state involvement, e.g. when a soldier kills a civilian in an area not under the state’s effective control, but later returns to the state’s own territory.

In short, the Court seems to have actually created a comprehensive aut dedere, aut judicare principle under the ECHR, that applies even to unintentional taking of life, and probably did so unwittingly. Obviously we’ll have to wait and see whether Gray will have such an impact, or whether the Court will somehow manage to reverse course.

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The Peremptory Right of Women to Life: Why El Salvador Should Authorise Abortion for Women Who Face a Substantial Risk of Death

Published on May 16, 2013        Author: 

Dr. Theodore Christakis is Professor of International Law at the University Grenoble-Alpes (France). He is Director of the Centre for International Security and European Studies (CESICE).

The Supreme Court and the authorities of El Salvador have the obligation under International Law to authorize a woman to receive a life-saving medical abortion despite the anachronistic total ban on abortion in El Salvador’s law.

“Beatriz” is the pseudonym (intended to protect her identity) of a 22-year-old woman in El Salvador who is now more than five months pregnant. The foetus she is carrying is missing a large part of its brain and skull, which means almost certain death either before or immediately after birth. The mother has been diagnosed with a number of severe illnesses, including lupus and kidney disease, and doctors say she faces a substantial risk of dying if she continues with the pregnancy, but have not yet treated her because they fear that if they end the pregnancy they might be prosecuted under the country’s total ban on abortion. Indeed, under these laws if the woman gets abortion she risks up to 50 years in prison and the doctors who perform the act up to 12! It is now almost two months since the doctors requested permission to provide Beatriz with the treatment she needs, but El Salvador’s Attorney General has said that the country’s Penal Code will be applied if Beatriz gets an abortion. The case has been brought to the country’s Supreme Court, but it has stalled for weeks. A hearing was finally expected to take place yesterday (15 May), but it was unclear whether the court will issue a final decision immediately. With each day that passes, the pregnancy poses more danger.

The case became “internationalized” on April 29, 2013, when the Inter-American Commission on Human Rights granted protection measures in order “to protect the life, personal integrity and health of “B”, asking the State of El Salvador to authorize this therapeutic abortion within 72 hours of the Commission’s letter. More than two weeks later though, El Salvador has failed to comply.

Read the rest of this entry…

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