Today it is accepted that both the law of armed conflict and international human rights law continue to apply in situations of armed conflict. Indeed, the European Court of Human Rights recently addressed the co-application of these two bodies of law for the first time in Hassan v. The United Kingdom, and the potentially landmark case of Georgia v. Russia (No. 2) is currently pending. However, the precise relationship between the law of armed conflict and international human rights law is subject to significant uncertainty. In particular, the content of the rules applicable on the battlefield remain unclear. Resolving this uncertainty is clearly an essential and pressing issue: States’ armed forces must be able to effectively and foreseeably regulate their activities, particularly if they are to be subject to judicial review before regional human rights bodies.
This post will discuss the role that human rights bodies, and in particular the European Court of Human Rights, may play in resolving uncertainties arising in relation to the co-application of the law of armed conflict and international human rights law. It is suggested that such judicial regulation can provide much needed clarity and assist in our understanding of the law applicable on the battlefield. However, that statement comes with a significant caveat. It is essential that, in applying the law of armed conflict, human rights bodies remain cognisant of the unique nature of this body of law and ensure that the application of international human rights law remains appropriate to the operational needs of the armed forces and the reality of armed conflict itself. Specifically, when interpreting and applying the law of armed conflict, human rights bodies must interpret the rules in the manner usual to that field. Failure to do so risks undermining the effectiveness of the law, thereby undermining the minimum – but essential – protections established in relation to armed conflict. Significantly, it also risks undermining respect for the decisions of human rights bodies. It should be highlighted that violations of both the law of armed conflict and international human rights law are primarily civil in character, and that there can be a violation of either or both of these bodies of law, in situations where no individual liability (say for a war crime) arises.
The development of the law of armed conflict by judicial bodies is not a new phenomenon (see for instance, Shane Darcy, Judges, Law and War: The Judicial Development of International Humanitarian Law (CUP 2014)). The International Criminal Tribunal for the former Yugoslavia in particular has played a significant role in the development of the law of armed conflict, with key decisions relating to the definition of armed conflict, the indicators of non-international armed conflict, and the confirmation that the rules on the conduct of hostilities developed for international armed conflict are largely applicable to non-international armed conflict on the basis of customary law.
However, the mandate of the International Criminal Tribunal for the former Yugoslavia necessarily restricted the scope for judicial development. By focusing on those most responsible for the most serious crimes it is typically only exceptional incidents that are addressed. As such the ‘day-to-day’ conduct of hostilities remained largely neglected. The same is true of other bodies, such as the International Criminal Tribunal for Rwanda or the International Criminal Court.
For instance, proportionality is a defining feature of the law of armed conflict, requiring that an attack be cancelled or suspended ‘if it may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated’ [Art. 51(5)(b), Additional Protocol 1, 1977]. However, there is very little understanding of how the proportionality rule is actually applied in practice. It is clear that killing 100 civilians in the pursuit of one low-level fighter is disproportionate and, conversely, it is clear that killing one civilian in the pursuit of 100 low-level fighters is proportionate. Outside of the extremes, however, there exists a significant grey area regarding the application of the proportionality equation, and it is precisely this grey area that constitutes the day-to-day reality of war fighting.
Similar uncertainty exists in relation to the precautions necessary in attack. Although the principle itself is clear, its application is subject to uncertainty. For instance, what factors should guide the planning process, to what extent should various mitigating factors be taken into account, and what are feasible efforts to verify the identity of a target?
It is inevitable that regional human rights bodies will address these issues. Unlike the international criminal tribunals, human rights bodies can – and do – address ‘routine’ incidents involving alleged violations of human rights: they are not restricted to the most serious – and therefore most exceptional – cases. Indeed, the European Court of Human Rights has previously addressed incidents arguably occurring in the context of an armed conflict – such as Ergi v. Turkey, Aksoy v. Turkey, Isayeva v. Russia, and Isayeva and Others v. Russia, although the law of armed conflict was not explicitly argued and therefore not explicitly addressed in these cases. This forum therefore offers an opportunity to address the routine elements of war fighting and to clarify the law applicable.
The International Court of Justice has addressed the relationship between the law of armed conflict and human rights law on three occasions (in Nuclear Weapons, the Wall, and DRC v. Uganda). The Court suggested that, in some situations, the law of armed conflict should be applied as lex specialis. This is unhelpful as a formulation. The appropriate intermingling depends not just on the situation at hand but also on the particular question at issue. Furthermore, the use of lex specialis might be thought to imply an either-or approach, i.e. that either the law of armed conflict applies or human rights law applies. This is something the Court expressly ruled out. That said, there will be certain questions, particularly in international armed conflicts, where a human rights body should only find a violation of human rights law if there is a violation of the law of armed conflict.
The case law of the European Court of Human Rights indicates that that Court has the potential to effectively navigate the co-application (or intermingling) of the law of armed conflict and international human rights law. For instance, in McCann v. The United Kingdom, the Court addressed (a) the planning of a law enforcement operation and (b) the execution of that operation, treating both components distinctly. A similar approach could be applied when evaluating the legality of an attack occurring in the context of an armed conflict, taking into account the precautions required in attack, and the responsibility of different elements within the chain of command. Issues addressed in the case, such as the weight attributed to certain inferences and the information that was passed to those responsible for directing the attack, are potentially directly relevant to the evaluation of military operations. Importantly, the Court has also demonstrated that it can take operational realities into account. In Finogenov v. Russia, which addressed the ‘Moscow theatre siege’, stricter levels of scrutiny were applied to those elements of the operation that were within the State’s control (such as the planning of the emergency response) than to those elements that were outside their control and subject to pressing time constraints (namely events in the theatre itself).
Similarly, the European Court’s jurisprudence indicates that it will take the information available to State agents at the time of an attack or incident into account – provided that information was perceived to be legitimate ‘for good reasons’ – even if that information subsequently proves to be mistaken:
‘To hold otherwise would be to impose an unrealistic burden on the State and its law-enforcement personnel in the execution of their duty, perhaps to the detriment of their lives and those of others.’ [McCann v. The United Kingdom, para. 200]
This approach, and reasoning, could be adopted, substituting ‘members of the armed forces’ for ‘law enforcement personnel’ when evaluating issues relating to military operations such as, for example, the proportionality of an attack, or the actions of a ‘reasonable military commander’.
If implemented appropriately, scrutiny by human rights bodies is not something that the armed forces should fear. It can be of practical benefit to the armed forces by clarifying the content of their obligations and increasing transparency vis-à-vis their activities, thereby addressing head on any allegations of wrongdoing, and ensuring confidence in the military.
As noted, however, it is essential that human rights bodies address situations of armed conflict in a manner that is fully cognisant of the reality of armed conflict. The law of armed conflict was established specifically for the purposes of regulating armed conflict. International human rights law was not. While it is perfectly possible to apply international human rights law during situations of armed conflict – and while it is appropriate and even beneficial that this occurs – doing so requires adapting international human rights law in order to acknowledge the distinct context of conflict, and the distinct requirements of the law of armed conflict. Accordingly, human rights bodies must ensure that they obtain sufficient expertise in relation to the law of armed conflict, and States must ensure that they argue their cases coherently and effectively. Importantly, States should also ensure that they intervene as third parties in relevant cases, so as to assist human rights bodies in appropriately operationalising the relationship between the two bodies of rules.