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Four Scenarios on the Relationship between IHL and IHRL

Published on July 9, 2014        Author: 

The issue of the relationship between international humanitarian law and international human rights law is often mixed together with other difficult questions of international law. This is not very conducive to conceptual clarity. One way of advancing that clarity is to construct hypotheticals which isolate as many of the various issues as possible, so that we can through a thought experiment better appreciate both how they operate individually and how they interact with one another, and move through them carefully, step by step, while resisting the temptation of introducing further complicating considerations.

In this post I’ll present four such (not so) hypothetical scenarios. These are the quintessential hard cases: they all deal at least with an apparent conflict between IHRL and IHL with regard to the use of lethal force and preventive security detention without judicial review. This is not to dispute that in the vast majority of other situations IHRL and IHL would be complementary. My reason for focusing on the hard cases is that they allow us to address more clearly conceptual questions such as the nature and utility of the lex specialis principle.

Scenario 1: NIAC

State A is a party to both the ICCPR and the ECHR. A non-international armed conflict is taking place on its territory, between the state’s forces and those of a non-state actor, B, an organized armed group. The constituent elements of the NIAC threshold are met beyond any doubt. In an operation during the dead of night, A’s forces kill a dozen of B’s fighters sleeping in a barracks (e.g. by shelling it from a distance), presumably doing so in complete accordance with the applicable IHL rules on targeting. From the facts on the ground, however, it was clear that A’s forces were perfectly capable of capturing B’s fighters had they wanted to do so, with little or no risk to A’s own soldiers. Indeed, B’s fighters sleeping in an adjacent barracks were captured and detained by A as threats to state security for the duration of the NIAC, without criminal charge, and without any judicial review of the legality of the detention.

Questions:

1)     Do the ICCPR and the ECHR apply in principle to the killing and detention of B’s fighters, i.e. did these individuals have human rights vis-à-vis A? Assuming that the answer to this question is yes:

2)     Was the killing of B’s fighters lawful under Article 6 ICCPR? Why or why not?

3)     Was the killing of B’s fighters lawful under Article 2 ECHR? Why or why not?

4)     Was the detention of B’s fighters lawful under Article 9 ICCPR? Why or why not?

5)     Was the detention of B’s fighters lawful under Article 5 ECHR? Why or why not?

6)     Would a derogation under either treaty be permissible, and if so would the prior existence of a derogation have any impact on the analysis under questions 2-5?

Scenario 2: IAC

States A and B are both parties to the ICCPR and the ECHR. They are currently engaged in an international armed conflict. B’s forces have set up a forward military base on A’s territory. As in Scenario 1, in an operation during the dead of night, A’s forces kill a dozen of B’s combatants sleeping in a barracks in the military base on A’s territory, presumably doing so in complete accordance with the applicable IHL rules on targeting. From the facts on the ground, it was clear that A’s forces were perfectly capable of capturing B’s combatants had they wanted to do so, with little or no risk to A’s own soldiers. Indeed, B’s combatants sleeping in an adjacent barracks were captured and detained by A as prisoners of war for the duration of the IAC, without criminal charge, and without any judicial review of the legality of the detention.

Questions:

1)     Do the ICCPR and the ECHR apply in principle to the killing and detention of B’s combatants, i.e. did these individuals have human rights vis-à-vis A? Assuming that the answer to this question is yes:

2)     Was the killing of B’s combatants lawful under Article 6 ICCPR? Why or why not?

3)     Was the killing of B’s combatants lawful under Article 2 ECHR? Why or why not?

4)     Was the detention of B’s combatants lawful under Article 9 ICCPR? Why or why not?

5)     Was the detention of B’s combatants lawful under Article 5 ECHR? Why or why not?

6)     Would a derogation under either treaty be permissible, and if so would it have any impact on the analysis under questions 2-5?

Scenario 3: IAC + extraterritorial application of IHRL

Same as Scenario 2 above, except B’s military base and barracks are located on B’s own territory. Questions exactly the same.

Scenario 4: NIAC + extraterritorial application of IHRL

Same as Scenario 1 above, except that the NIAC between state A and non-state actor B is occurring on the territory of state C (i.e. it is cross-border in nature). Questions exactly the same.

I do not want to provide my own solutions to these questions. What is important is how the scenarios are constructed – for example, how they try to establish whether the classification of armed conflict has bearing on the interaction between IHL and IHRL, how the issue of IHRL’s extraterritorial application is switched on and off, and how they contrast the different texts of the ICCPR and the ECHR. The key structural point is the existence of a norm conflict between IHL and IHRL which is not avoidable through normal interpretative means. (Note, in that regard, that one could deal with some of the substantive issues by arguing that the rules of IHL are more restrictive than are commonly thought, e.g. as prohibiting attacking sleeping soldiers whom one could capture, and thus avoid a conflict with IHRL. For a more limited approach to IHL targeting rules combined with the unnecessary suffering principle, see, e.g., R. Goodman, ‘The Power to Kill or Capture Enemy Combatants,’ (2013) 24 EJIL 819. But whatever the merits of that argument, my point here is precisely to find cases where the two sets of norms do conflict, and I am happy to change the facts of the hypos in order to achieve this.)

Similarly, only a total displacement version of lex specialis could render IHRL treaties inapplicable in scenarios 1 and 2, while scenarios 3 and 4 are subject to the additional extraterritoriality point. Note also how the jus ad bellum is completely irrelevant for Scenario 1, since all of the events involve a state acting on its own territory again non-state actors, while it can be postulated away in the other scenarios (for example, state C consents to state A’s presence in Scenario 4). This is not to say that the jus ad bellum cannot be introduced into the scenarios, but that this should be done only after we already have answers to the relevant questions while the jus ad bellum is out of the picture.

Comments welcome!

 

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14 Responses

  1. David Goddard

    Marko,

    It seems to me that scenario 4 can be split into 2 distinct scenarios:

    a) There is a NIAC between state A and armed group B. The incident in question occurs in the territory of state C, which is otherwise unconnected.

    b) There is a NIAC between state C and armed group B. State A intervenes at the request of state C, in the territory of which the incident in question occurs.

    I don’t necessarily think the answers would be different, but the cross-border elements are not the same and therefore the two fact patterns should perhaps be considered separately.

  2. Jordan

    With respect to a theoretical conflict between human rights law and the laws of war and a minority preference for lex specialis as an override of h.r. law, when one is fully aware of the nature and sources of relevant international law the issues are not that complex.
    First, right, duties, and competencies jus cogens must necessarily have primacy over conflicting law of war. Well-known lists include H.R. Comm., General Comment No. 24, para. 8 and the U.S. Restatement (Third), section 702. Clearly, forced disappearance of person (secret detention) and torture and cruel, inhuman, and degrading treatment trump any inconsistent laws of war [but the laws of war prohibit both – contrary to some of the 9 false Bush/Cheney claims [see http://ssrn.com/abstract=1989099 ]. A lex specialis minority preference has not obviating relevance here.
    Second, necessarily every member of the United Nations has an overriding Charter-based duty to not violate customary human rights that are incorporated by reference through Articles 55(c) and 56 of the U.N. Charter and which have primacy over any conflicting portion of any other international agreement (like law of war treaties) under Article 103 of the Charter. Most recognize that the Charter-based human rights obligations of members also prevail over ordinary customary law (such as ordinary customary laws of war). A lex specialis minority preference has no obviating relevance here. Concerning the incorporation of customary human rights through the Charter, see, e.g., Can You Hear Me Now?: Private Communication, National Security, and the Human Rights Disconnect, forthcoming 15 Chicago Journal of International Law no. 2 (2014), draft available at http://ssrn.com/abstract=2451534
    Third, although customary human rights incorporated through the U.N. Charter clearly apply universally (without any geographic or contextual limitation – and contrary to some of the nine false claims of the Bush/Cheney regime) and apparently apply to all persons, the ICCPR applies universally (contrary to Bush/Cheney, et al.), but to whom? Extraterritorially only to those within the “jurisdiction” of a party, including those who are within the actual “power or effective control” of the party abroad (the human rights disconnect – see, e.g., 245134 above). So are the relevant human rights customary? or are they only based in the ICCPR and reflected in other international agreements? Persons detained would, in any event, be covered, since they are clearly within the actual power or effective control of the detaining power (contrary to Bush/Cheney, et al.). Persons targeted under the laws of war or the law of self-defense would in nearly every case not be protected by human rights law under the ICCPR.
    Fourth, if human rights law did apply to persons being targeted (as opposed to persons who are detained), what would the test be on the merits? Under Article 6(1) of the ICCPR, only “arbitrary” killings are denied and lawful targetings under the laws of war or the law of self-defense would not be “arbitrary.” Detainees have human rights at stake, but Article 9 of the ICCPR prohibits “arbitrary” detention and, thus, not detention that is rational, reasonable, and permissible under the laws of war.
    Fifth, but the Europeans? European state parties to the ECHR are bound by Article 2; and Article 15(1) and (2) expressly contemplate the application of human rights law during “war.” European states should engage in permissible derogations under Article 15 – (1) (“in time of war”, (2) (“lawful acts of war”) and not rely on a minority preference for a so-called lex specialis. No known international agreement contains the phrase lex specialis. The minority preference could only be relevant if it was part of customary international law, but it is not proven to be in view of general patterns of practice and general patterns of opinio juris.
    Sixth, the statement that a state cannot take advantage of the law of self-defense within its own territory is reflective of proven CIL. The U.S. Civil War involved an enemy with “belligerent” status, and all of the customary laws of war applied, demonstrating that it is important to identify the status of the rebels under international law – e.g., “nation,” “people,” “belligerent,” “insurgent” – although I would agree that a NIAC will only pertain with respect to a state engaging an insurgent within its own territory as opposed to the others and assuming that there are no other internationalizing elements that change the NIAC to an IAC. Concerning self-defense within one’s own territory and within foreign state territory against NAS attacks, see, e.g., http://ssrn.com/abstract=2459649 (earlier draft).

  3. Jordan

    sorry, re: “sixth” I meant to state NOT reflective of CIL

  4. Jordan

    and can’t type well — meant NSA, non-state actor

  5. Marko Milanovic Marko Milanovic

    David,

    You are right that we could vary the scenario as you suggest, but as far as I can see that would only have some possible impact on the classification of the conflict, and that issue is already addressed by the switch from Scenario 3 to Scenario 4. (Plus of course there’d be the separate jus ad bellum issue). But I don’t think the two sub-scenarios would change anything relevant for the relationship between IHL and IHRL.

  6. David Goddard

    Marko,

    I take the point, however I think that my 2 different scenarios might tease slightly different issues out of the wider discussion.

    Looking at my scenario 4(b), but switching the parties slightly so that state C (i.e. the location of the conflict) is a signatory to the ECHR and ICCPR and state A (the intervening state) is not, the more restictive views of the extra-territorial application of IHRL might lead to the conclusion that state A is less fettered in what it can do than state C, notwithstanding that A is acting at the behest of C.

    Conversely, in scenario 4(a), the application of the most restrictive views on the extra-territorial application of IHRL would lead to a different issue that is unlikely to occur in my 4(b), namely that there might be more than one legal regime applicable across the field of conflict; i.e. state A might be more fettered in its action against the insurgents in its own territory than when it takes the same action in the territory of state C.

    I would suggest that each of these issues present a different problem in the application of more restrictive views, though I would agree that such objections might well dwell in the realm of lex feranda rather than lex lata.

    David

  7. Simon Rau

    In this comment I focus on the question of the permissibility of the detention of the sleeping fighters, as this is what I am working on with regard to my dissertation at the moment. Many of the points should however also be applicable to the questions of targeting / the right to life. I will address the NIAC and IAC scenarios in an integrated fashion.

    With regard to detention, the question of the extraterritorial applicability of human rights treaties should not be a problem. In Al Skeini, detention by state agents abroad was cited as one prime example of the personal model of jurisdiction under Art 1 ECHR and the ICCPR should apply similarly. Hence, it is not necessary to distinguish between detentions on A’s territory and those abroad.

    As the further questions go to the heart of the relationship between IHL and Human Rights, it is first necessary to establish whether IHL provides an authorization for detention. If there is no such basis in IHL, there is no potential conflict between IHL and Human Rights and the matter is merely to be decided on the basis of the relevant Human Rights Norms.

    I think it is reasonable to conclude that IHL provides an authorization to detain in IAC, both with regard to POWs and to civilians who pose a security threat. (The latter do not feature in Scenario 2, where the detainees are combatants, but my discussion will include a Scenario 2(b) in which these detainees are civilians that A suspects to have directly participated in hostilities.)

    This conclusion is firstly based on the respective provision’s language: According to Art 21 GC III, POWs “may be interned” and GC IV provides that civilians may be interned only if the security of the Detaining Power makes it absolutely necessary (Art 42 concerning aliens on a state’s territory) or if the Occupying Power considers it necessary, for imperative reasons of security (Art 78 as to civilians in occupied territories). The wording of these provisions suggests an authorization which is even more clear in Art 27 GC IV which states that the parties to the conflict may take measures of security and control against civilians, of which detention constitutes the most severe form.

    Furthermore, as Cawthorne-Hill and Akande point out, in IACs states are confronted with aliens, the detainment of which would have to comply with the minimum standard for the treatment of aliens, if this were not overwritten by an IHL authorization (note how this argument already foreshadows the possibility of setting aside other bodies of international law via IHL).
    Also, as there is an express combatant’s privilege in the law of IAC, the argument that the logical corollary of this is the power to detain combatants preventively is hard to rebut. The case for an authorization in IAC has been made more comprehensively By Cawthorne-Hill and Akande so that I do not want to go more into detail.
    Notwithstanding, Derek Jinks argues that IHL merely regulates behaviour and does not authorize it. According to him, the quoted provisions in GC III and IV are merely regulatory i.e. they only prohibit worse treatment, e.g. close confinement in the case of POWs, without authorizing detention that is within their limits. He argues that the principle of equal application would otherwise legalize the use of force by a party to the conflict which is not entitled to it under the jus in bello. Although he purports that this argument is based on the division between jus in bello and ad bellum, it mixes up the two categories: the idea behind the separateness is exactly that the legality of a resort to force under IHL is completely independent from its assessment under the jus ad bellum. Secondly, he opines that the drafters of the GCs and APs were clearly not concerned about the abusive application of IHL as an authorizing body of law outside armed conflicts and that hence such authorization cannot be entailed by IHL. This argument is not very convincing either, as this may simply be a new trend not contemplated by the drafters.
    Finally, I think that this “Lotus Approach” which assumes that everything not prohibited could be done by states, at least in a pre-human rights, purely Westphalian international order is not entirely correct. 19th century scholarship routinely referred to public conscience as a source of international law. Although this attempt to civilize unfettered sovereignty did not resonate strongly with states, the Martens Clause as a part of positive law still bears witness to it. This is not to say that anybody would have considered detaining combatants as illegal back at the time, but codifying an authorization to do so may nonetheless have had an important legitimating function (see Art 5 Hague Rules).

    With regard to NIACs I agree with Justice Legatt in Serdar Mohammed and Cawthorne-Hill and Akande that there is no authorization to detain preventively in NIAC. The language of CA 3 and AP II does not provide any hint of such authorization. What is more, the argument raised in Serdar Mohammed that if IHL allows targeting, detention must be allowed as well does not hold, as there is no combatant’s privilege in NIAC. Again, this has been explored exhaustively in Serdar Mohammed and previous posts so that there is no need to explore it further.

    Hence, in Scenario 1, A would not be authorized under IHL to detain the fighters; any authorization would have to derive from domestic law. From a policy point of view, I think this is less dramatic than British policymakers suggest, as any state is free to criminalize membership in an armed group and also support thereto, so that persons could then be detained and brought to trial on that basis.

    In Scenario 2 and 2(b), A would be authorized by IHL to detain the combatants as POWs and intern the civilians as security threats, subject to the required procedural guarantees.
    Having clarified the extent to which IHL authorizes preventive detentions, we can now move to examining the exact scope of a possible conflict between IHL and Human Rights.

    As there is no IHL norm authorizing detention in NIAC, such detention has to be assessed by reference to “pure” human rights standards without adding IHL to the equation. It seems that the arbitrariness standard in Art 9 ICCPR could provide some leeway for preventive detention, while the exhaustive list of permissible grounds for detention excludes it. Any inconsistency between the two bodies of law would have to be addressed by way of derogation as discussed below. In any case, the detention would also have to comply with the respective procedural requirements. As this comment’s main interest lies in the interplay between IHL and Human Rights, the NIAC scenario is not explored any further.

    With regard to detention in IAC it seems pertinent to look separately at the permissible grounds for detention, the requirement that the procedure be provided by law and the required procedural safeguards.

    As to permissible grounds of detention, Art 9(1) ICCPR by prohibiting “arbitrary” detention provides a point to latch in the authorization to detain under IHL. Similar to the ICJ’s pronouncement in the Nuclear Weapons Advisory Opinion (para 25), what is an arbitrary detention could be determined by IHL as the applicable lex specialis. Notice that this could be understood as merely a resort to lex specialis as an interpretative device to determine the meaning of the word “arbitrary” in an IAC situation, and not as a conflict resolution tool. This is important as the adequacy of resorting to lex specialis in order to solve norm conflicts is hotly debated, whereas its usefulness as an interpretative tool is not. The detentions on ground of being a combatant and of civilians who are security threats within the confines of Art 21 GC III and Art 42 / 78 GC IV respectively would hence not violate the first requirement of ARt 9(1) ICCPR.

    With regard to Art 5 ECHR things stand, however, differently. As the list of permissible grounds for detention is exhaustive and preventive detention in armed conflict is not among them, IHL clearly is at odds with the ECHR. IHL says: “You may detain” and the ECHR says “you may not”. If lex specialis were a conflict resolution tool and IHL were the more specific law in this case, the solution would be easy: IHL would set aside the conflicting bits of Art 5 ECHR which would then operate akin to Art 9(1) ICCPR as sketched out above.

    But can lex specialis do this job? This question ultimately is about how much we conceive of international law as a unified, coherent system that provides mechanisms to address contradictions between its different parts. The debate about the fragmentation and proliferation of international law does not bode well in that regard. Is international law not non-hierarchical in nature, with human rights lawyers and courts who would never concede the tiniest bit of the protection of human dignity against unfettered sovereignty to the demands of military necessity as embodied in IHL? And does it not lack a unified legislation process and a clear hierarchy to finally settle this kind of uncertainties? Indeed, jurisprudence that provides authority for such a role of lex specialis is rather scarce. The only precedent which seems to deal with the relationship between IHL and human rights under such premise is Cyprus v Turkey where the European Commission did not find it necessary to consider if the detention of Cypriots as POWs complied with Art 5 ECHR (Cyprus v Turkey (1982) 4 EHRR 482, para 313). It did however not frame this as a lex specialis issue. Interestingly, Sandesh Sivakumaran (ch 23) reads the ICJ statement in the Nuclear Weapons Advisory opinion not as a use of lex specialis as an interpretative, but as a conflict solving principle. This understanding seems possible, if one considers the arbitrariness standard in Art 6 ICCPR not as dynamic, and hence variable in the case of an an armed conflict, but as fixed, both in peacetime and armed conflict. On the basis of such understanding, the ICJ indeed used lex specialis to resolve the conflict between IHL and Art 6 ICCPR by carving an armed conflict exception into the right to life. Furthermore, the OSPAR award in para 84 contemplates the use of lex specialis as a conflict resolution principle, albeit only in relation to customary law. A pronouncement by the ICJ in the rights of passage case (p 44) can be understood in a similar fashion. Scholarship is divided, – while Marko Milanovic denies such a role for lex specialis, others including Sandesh Sivakumaran and Marco Sassoli are proponents of the lex specialis principle to solve conflicts between IHL and human rights. And, not to forget, the UK claimed that IHL as lex specialis displaced or qualified Art 5 ECHR both in Serdar Mohammed and the pending Hassan v UK.

    It is submitted that the state of the law in that regard is one of indeterminacy. There is not a strong precedent which would support the conflict solving qualities of lex specialis, but neither does a respective finding seem absolutely unthinkable. Given the state of the law and their respective interests, it is little surprising that the UK pleaded lex specialis in Serdar Mohammed and Hassan and the applicants claimed that IHL could not displace Art 5 ECHR.
    This does however not mean that no reasoned decision can be taken on the issue. After all, it is the role of the courts to clarify the law. Justice Legatt in Serdar Mohammed already took a stance by denying that lex specialis could be a conflict resolution rule. His reasoning is however somewhat scarce and his conclusion qualified by the adjective “arguably.”
    As the ECtHR is probably keen on not undermining its own importance by allowing IHL to displace the ECHR, in Hassan it will probably share Justice Legatt’s view. In the light of the debate in the UK about some of its recent decisions and the political consequences of keeping states from detaining preventively in armed conflict, it might however also opt for the opposite possibility. If it can settle the issue will, to a big extent, depend on how convincing its reasoning is.

    But besides the question for the permissible grounds for detention, there are the other elements of Art 9 ICCPR and Art 5 ECHR which to some extent are in conflict with IHL, too.
    Firstly, the requirement that the procedure and grounds for detention must be established by law (ICCPR) / a procedure prescribed by law (ECHR): If we assume that a basis in IHL can satisfy this requirement and there is no need for a separate basis in domestic law, the detentions would still have to comply with this provision’s substantive prong, I.e. the law must be sufficiently precise to prevent arbitrariness and to allow to be clear about the consequences about one’s conduct beforehand. This is problematically unproblematic in the case of POWs: If you are a combatant, you may be detained. This is as foreseeable as a rule could be. However with regard to the internment of civilians, this could well be problematic. It is largely within a state’s discretion when “imperative reasons of security” and “absolute necessity for the detaining power’s security” mandate a civilian’s detention. Hence, Art 42 and 78 GC IV are not sufficiently precise to fulfill the discussed substantive requirement, both under the ICCPR and the ECHR, and so again the question how to settle such norm conflict arises.

    Similarly, Art 9(4) ICCPR and 5(4) ECHR require a judicial review of any detention which must be independent from the executive and includes a right to be heard for the detainee. Both the provisions for the internment of civilians and of POWs clearly do not meet this standard: The review process for interned civilians need merely be administrative and does not necessarily include a right to be heard and a review procedure with regard to POW status is only required if there are doubts as to that status (Art 5 GC III). Hence, again the question as to the potency of lex specialis as a conflict resolution tool arises.

    Sassoli and Olson suggest a “sliding scale” approach to lex specialis in order to determine which norm is the more specific one that trumps the other. This means that even in armed conflict, there may be situations where, due to the nature of the situation, human rights would be more specific and hence trump IHL. This could e.g. be the case in a relatively pacified occupation situation. Think of a Palestinian protest gone violent in the West Bank – it seems reasonable that human rights law is the adequate basis to assess any Israeli reaction. Interning the rioters for security reasons without charges seems to be a bit over the top. Note that this approach allows to bring normative considerations into the decision which norm is the more specific – How could one “objectively” decide if a situation is closer to the default armed conflict or the default peacetime situation. On such a basis one could e.g. also conclude that IHL may displace human rights with regard to the permissible grounds of detention, but that the requirement for a judicial review under Art 9(4) ICCPR / 9(4) ECHR remains in place. This would be in line with the Human Right’s Committee’s stance that habeas corpus is of fundamental importance and also non-derogable (General Comment No. 29, para. 16). It is submitted that the incorporation of such normative consideration should not unsettle the lawyer who is naturally keen on objective standards too much. After all, any decision between competing interpretations is a normative choice that will necessarily be affected by the deciding person’s values.

    Thus, it has to be concluded that under close examination IHL and human rights clash in the field of preventive detention. This is both true with regard to POWs and interned civilians and, regardless of the word “arbitrary”, with regard to Art 9 ICCPR and Art 5 ECHR. Thus, A violated its human rights obligations under both treaties in scenario 2 and 2(b) unless IHL by virtue of lex specialis as conflict resolution tool solved every discussed conflict in favor of IHL. This seems conceptually possible, but there are also strong reasons for the opposite stance.

    Finally, some thoughts on the possibility to solve these problems by derogations: If we assume that the threshold of an emergency threatening the life of the nation in Art 4 ICCPR and Art 15 ECHR respectively is met, some problems remain. Firstly, as mentioned, at least under the ICCPR the judicial review under Art 9(4) cannot be derogated from. Also, the requirement that detention may not be arbitrary cannot be derogated from. (General Comment No. 29, para. 11). As discussed above, the legal basis for the internment of civilians may, due to its lack of precision, not live up to that standard.
    And lastly, both under the ICCPR and the ECHR, derogations are limited to what is strictly required by the exigencies of the situation. It is far from clear that the HRC and the ECtHR would accept that the authorizations to detain under IHL are strictly required by the exigencies of the situation in any armed conflict situation. Again, especially the wide latitude for interning civilians may come under scrutiny. Hence, derogations may not be able to do away with all the discussed conflicts and we are back at the question how to settle norm conflicts between IHL and human rights.

  8. Jordan

    Simon: there is no use of the word “absolutely” in the relevant provisions of Geneva law re: tests for detention.
    If the text of GC 3 does not allow one to conclude that there is an implied authorization to detain, why would the text of ICCPR 9? Further, one should not rely on text alone. The widespread practice in each circumstance is to detain and general opinio juris seems to be that it is most appropriate under the laws of war operative in a NIAC or under human rights law to do so– contrary to a few, apparently textualist, British judges.

  9. Jordan

    Simon: do you agree that human rights jus cogens necessarily prevail in case of a clash with laws of war? Do you agree that customary human rights (including customary rights jus cogens) that are guaranteed universally under Articles 55(c) and 56 of the U.N. Charter, in view of the mandate in Article 103 of the Charter, necessarily prevail in case of a clash with laws of war? Do you agree that no international agreement contains the phrase lex specialis? See http://ssrn.com/abstract=1710744 for further details.

  10. Simon Rau

    @Jordan:

    as to your first post:
    Art 42 GC IV reads: The internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely [!] necessary.

    I conclude that GC III provides an express authorization to intern POWs; so does GC IV with regard to civilians on security grounds. The word “arbitrary” in Art 9 ICCPR does not provide such authorization. It however allows a dynamic, i.e. context-specific interpretation, so that internment within the confines of GC III and IV in IAC would not be arbitrary, as IHL as lex specialis assists in the interpretation of the term “arbitrary” in IAC (See, mutatis mutandis, Nuclear Weapons Advisory Opinion para 25).

    Sure, textual reading alone cannot do the whole job, but it still is the starting point of the analysis of any provision of conventional law, as these are necessarily put down as text. Sure, states do detain in NIAC, bit to me it seems more plausible that this is done on the basis of domestic law. See the posts of Cawthorne-Hill and Akande.

    With regard to your second post: Yes, jus cogens makes conflicting norms void. However, I do not see how this can help us in this scenario.

    I agree that obligations under Art 55 and 56 UNC prevail by virtue of Art 103. Not sure though if this encompasses all customary human rights. Would be of no avail before human rights courts that usually only can apply their underlying treaties, anyways.
    If we go for such a sweeping approach, why should it not encompass human rights treaties as well? This would be the magical tool to make human rights prevail over all other international law, but I think such interpretation to date has not been endorsed by any court or state.

    I agree that lex specialis is not mentioned in any treaty. To my understanding it is a general principle of law in the sense of Art 38 ICJ statute. This however does not answer the decisive question: Is it a norm conflict resolution tool or not?

  11. Jordan

    Simon: thank you for your reply and the correction re: GC IV.
    One reason for the points about lex specialis is that some argue that the “principle” requires that the laws of war override any inconsistent human rights — which does not make sense. Also, you only need the Vienna Convention and CIL reflected therein for the interpretive role of the “principle.”

  12. Jordan

    p.s. Johann Bluntschli claimed in 1867 that “[t]reaties the contents of which violate the generally recognized human right … are invalid.” His preference has traction today regarding h.r. jus cogens and h.r. protected in all social contexts through the Charter (e.g., in a NIAC or IAC, or whatever).

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