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Norm Conflicts and Human Rights

Published on May 13, 2009        Author: 

Consider the following scenario: the United Kingdom, together with the United States and other allies, invaded Iraq in 2003. From that point on, there was an international armed conflict between the UK and Iraq. Further, as it obtained effective control over certain parts of Iraqi territory, the UK became the occupying power of these territories. Under Art. 21 of the Third Geneva Convention, and Arts. 41-43 of the Fourth Geneva Convention, the UK had legal authority to subject enemy POWs and civilians to internment.

Yet, on the other hand, the UK is a state party to the European Convention on Human Rights. In some circumstances, the ECHR applies extraterritorially. What those circumstances are is an (overly) complex question, but the UK has conceded in the Al-Skeini case before its domestic courts that the ECHR applies to extraterritorial detention.

Unlike Article 9 ICCPR, which sets a standard by prohibiting arbitrary arrest and detention, Article 5 ECHR contains a categorical prohibition of detention, except on a limited number of grounds. Preventive detention or internment on security grounds is not one of them. Further, Article 5(4) ECHR requires judicial review of any detention, while Art. 5 GC III only provides for status tribunals if POW status is doubt, and Art. 43 GC IV expressly permits review of detention by mere administrative boards.

So, on one hand we have IHL treaties expressly authorizing preventive detention or internment. On the other we have the ECHR expressly prohibiting such detention. No amount of interpretation can bring the two rules into harmony – they are in a state of genuine norm conflict. That norm conflict could have been avoided had the UK made a derogation under Art. 15 ECHR, but it did not do so (and there is a further question whether it could have actually done so, which needs ti be clarified in the future, though in my view the answer is clearly in the affirmative).

There is moreover no rule of hierarchy that could give priority either to the Geneva Conventions or to the ECHR. Lex posterior is for various reasons completely useless, while the lex specialis maxim famously touted by the ICJ in Nuclear Weapons is in my view not a rule of norm conflict resolution, but of norm conflict avoidance – it can tell us what a standard such as ‘arbitrary’ detention means in a particular set of circumstances, but it cannot give priority to one treaty over another if their texts are irreconcilable.

In June 2004, the UN Security Council adopted Resolution 1546 (2004), which authorized preventive detention by international forces in Iraq. Per the House of Lords in the Al-Jedda case, that resolution could have prevailed over the ECHR, by virtue of Article 103 of the UN Charter. That decision of course remains controversial, though in my view it is fundamentally correct. However, in Al-Jedda the House was not dealing with the detention of persons before the UNSC resolution, which was done under the Geneva Conventions – treaties of an equal hierarchical status as the ECHR.

So, what he have on our hands when it comes to detention in Iraq for more than a year in 2003/4 is a norm conflict which is both unavoidable and unresolvable. No court or judicial body can make that norm conflict go away, as a state, the United Kingdom, has simply accepted two contradictory treaties, just like any individual can sign two contradictory contracts. The only solution to such a conflict is a political one – the state has to renegotiate one of its conflicting obligations, or choose which obligation to fulfill, and pay the price for not abiding by the other one. (Of course, in the example given above, the conflict is between a permissive norm and an obligation, not between two obligations, but the permissive norm is no less frustrated due to the conflict).

These norm conflicts, like the broader fragmentation phenomenon, are obviously not of purely academic interest. Currently pending before the lower English courts is the Al-Sweady case, dealing inter alia with detention in Iraq prior to Resolution 1546. Recently decided by the English Court of Appeal was the Al-Saadoon case, where a detainee in Iraq challenged his pending transfer to Iraqi authorities on non-refoulement grounds, claiming that he was at a serious risk of being subjected to the death penalty.

On the other hand there was a status of forces treaty between the UK and Iraq, which stipulated an obligation of UK authorities to surrender any detainee to Iraqi custody, without any exception. The Court of Appeal decide to artificially avoid the conflict by ruling (quite wrongly) that the detainee was not within the UK’s jurisdiction for the purposes of Art. 1 ECHR, even though he was in UK custody. Yet, in reality there was an unavoidable and unresolvable norm conflict between the ECHR and this time a bilateral treaty, and there was nothing to be done.

This time there was a conflict between two obligations, and the only possible, political solution was for the UK to choose which of these obligations to renegotiate or to honor. And it did so, by choosing its treaty with Iraq over the ECHR, and surrendering the detainee contrary to a provisional measures order of the European Court of Human Rights, for the first time in recent memory. (For more on Al-Saadoon, see these excellent posts by Tobias Thienel: here, here and here).

Sexy stuff, isn’t it? Fragmentation may be many things, but boring is not one of them. It will be interesting to watch the progression of Al-Sweady through English courts, while I think that Al-Skeini, Al-Jedda, and Al-Saadoon are all already pending before the European Court of Human Rights. Readers will have already noted that any case with an ‘Al’ in it is at the very least worth an article. How appropriate it is then that a forthcoming article of mine on norm conflicts and human rights in the Duke Journal of Comparative and International Law deals precisely with questions like these, including with cases such as Behrami, Bosphorus and Kadi. Any comments would, as always, be most welcome.

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13 Responses

  1. Marko,

    Great post, on a fascinating question. (Well, I would say that, wouldn’t I? Thank you for linking to my two cents on Al-Saadoon).

    Towards the beginning of your post, you bring up a question that has bothered me for some time about the whole debate of conflict between IHL and IHRL: why would there be any conflict between the Geneva rules on the taking of POWs and the internment of civilians on the one hand, and the ruling out of such measures under the ECHR?

    Perhaps my difficulty is best explained by reference to Article 41 of Geneva Convention IV. That article provides:

    “Should the Power, in whose hands protected persons may be, consider the measures of control mentioned in the present Convention to be inadequate, it may not have recourse to any other measure of control more severe than that of assigned residence or internment, in accordance with the provisions of Articles 42 and 43.”

    That, to me, sounds for all the world like a limitation on internment by the occupying Power, not like a provision establishing a power to do so. Article 5 ECHR, then, establishes protection beyond Article 41 GC IV, but does not come into conflict with it. It only ‘clashes’, in an entirely non-technical sense, with the expectation that an occupying Power will be allowed to take dangerous civilians into custody.

    Similarly with Article 21 GC III. In the spirit of the Geneva Conventions, that article allows for the traditional, sovereign power to take POWs, just like human rights treaties allow for interferences with human rights for specified legitimate purposes. But GC III is less easily read as establishing a power, precisely so-called, of taking POWs. Again, there is no conflict with Article 5 ECHR, only less generous protection.

    Such protection may be less generous for a very good reason, but that does not turn the limitation on sovereign rights into the power of internment that human rights law would require under Article 8(2) ECHR (admittedly displaced as lex specialis by Article 5), or which would give rise to conflict with Article 5(1) ECHR. The Geneva Conventions certainly presuppose the powers of taking POWs and of internment, but they don’t establish them, which I would suggest is what is needed for any conflict to arise.

    Things may conceivably different as regards the Hague Regulations of 1907. The Regulations, of course, were not so much intended to protect human rights – as the GCs were -, but to delimit the powers of warring parties as between one another. It is arguable, therefore, that the Hague Regulations do actually give a belligerent the power to take POWs (Articles 4 et seq.) or to intern civilians where necessary (one possible aspect of Article 43), in the sense that the other belligerent could not quarrel with the exercise of such powers. Yet Article 4 appears to, again, presuppose the power to take POWs (though this time not because the Regulations only aim to protect POWs, but because its wording is not apt to create the power). Similarly, Article 43 would seem to require the occupying Power to maintain order (and to limit its powers to amend the local law), not to set out any powers. Again, we are left with sovereign, not with treaty powers. Sovereign powers are quite properly limited by human rights law, certainly in the sense that there is no conflict at the level of international law.

    I would obviously accept that human rights law may be much less ‘proper’ in another sense. It is certainly inappropriate for belligerents, particularly only belligerents bound by the ECHR, to be incapable of taking POWs. All I’m suggesting is that conflict of treaties is not the issue here.

    Instead, our problem is one exclusively under the ECHR. Its States parties should enter a derogation in order to be able to take POWs (etc); if they don’t, well that’s tough luck for them.

    Mind you, all that doesn’t distract one bit from Al-Jedda (with which I, too, very largely agree), or from the problem in Al-Saadoon. Those cases really were about powers (in Al-Jedda) and obligations (in Al-Saadoon) under international law conflicting with human rights law. (Al-Saadoon raised a conflict between treaties according to the High Court, and one between customary law and the ECHR according to the Court of Appeal; I don’t think that matters to the ECHR analysis)

    Further on the Iraqi cases in England (without ‘Al’), I think R (Hassan) v Secretary of State for Defence [2009] EWHC 309 (Admin) was a restatement of Al-Skeini, possibly with an aspect drawn from Drozd and Janousek v France and Spain.

  2. Dapo Akande Dapo Akande

    Tobias,

    The question you pose is really one of whether IHL establishes a power or provides a permission to detain or does it simply recognise the fact of detention. We had a similar discussion earlier on EJIL Talk, see the comments here .

    My own view is that IHL does provide an affirmative permission to detain. As I said in my comments to that earlier post

    “there is no provision in GCIII or API that explicitly says “parties have the right to detain combatants”. . . . IHL relating to detention of combatants (i.e the law regarding POWs) starts from the factual premise that these people have been captured. However, it doesn’t just recognise that fact it must be regarded as providing affirmative authority to detain, i.e to continue to keep, by regulating not merely how they are detained but for how long they can be detained. All of this detailed regulation only makes sense against a background of a rule that gives permission to detain.”

    GCIII is to be understood as saying you can only continue to detain POWS if you meet certain conditions relating to who they are and how they are detained. Moreover, it says the belligerent must release at some point (at the end of the conflict). The whole regime seems to me like a conditional permission to detain.

    The position with regard to GCIV seems to be even clearer. Art. 79 of GCIV provides that:

    “The Parties to the conflict shall not intern protected persons except in accordance with the provisions of Articles 41.42, 43, 68 and 78.”

    This provision does not just recognise a factual situation, it establishes a right to detain but only if the conditions in the treaty are met.

  3. Dapo,

    Thank you for your reply, and apologies for missing your earlier discussion. I think you are right to say that the question I posed is whether IHL permits or only regulates detention. On that, I don’t quite share your reading of the Geneva Conventions.

    I find it difficult to say the ‘detailed regulation [in GC III] only makes sense against a background of a rule that gives permission to detain.’ If we understand GC III as a human rights instrument (in the broadest sense of the word), then why would there have to be a positive permission of detention for there to be something to regulate (apologies if I misread your argument)? By comparison, I would not have thought that the ECHR gives a power in principle to detain, before going on to regulate the exercise of that power. Nor would I attribute such a rule to customary law, except in the sense that the ‘power in principle to detain’ is an attribute of sovereignty, itself obviously a concept of general international law.

    The opposite may be true if there is a general prohibition on the taking of POWs, for instance because that would take place beyond the belligerent’s territorial jurisdiction (which isn’t necessarily true) or because that would be a presumptively unlawful interference with the organisation of the other warring party, more particularly with its army (a kind of immunity argument, if you will). In that case, I suppose GC III may well be taken as first removing the prohibition, by means of a positive permission, before it goes on to provide for regulations in detail. But is there such a general rule against the taking of POWs? I feel there is an air of unreality about this assumption.

    While certainly not an expert on IHL, I would not have read GC III as a conditional permission to detain, but as a set of conditions on detention.

    I also can’t find the opposite in the wording of Article 79 of GC IV, which you kindly quote. As I read it, the article establishes a conditional prohibition of internment (‘shall not intern… except…’), not a conditional permission/power to detain (‘may intern… but only…’, to use somewhat clumsy hypothetical language).

    Of course, the consequence of this understanding of the GCs is a very largely theoretical one. It does not make a lot of difference whether we say ‘GC III permits the taking of POWs’ or whether we put this as ‘GC III declines to prohibit the taking of POWs.’ However, the distinction is important, I would suggest, to the question of a norm conflict with Article 5 ECHR. The prohibition of the ECHR would conflict with a positive permission of detention in GC III, but not with the absence of a prohibition from GC III.

  4. Dapo Akande Dapo Akande

    Tobias,

    With respect to detention in occupied territories, I should have also referred you to Art. 78 of GCIV which makes it clear that parties may intern protected persons. It reads:

    “If the Occupying Power considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may, at the most, subject them to assigned residence or to internment.”

    Presumably, the use of the word “may . . . subject to internment” will satisfy you that there is an affirmative permission to detain. However, even absent that positive wording in Art. 78, the fact that Art. 79 (quoted above) is framed in the negative (parties “shall not intern . . . except”) should not be taken to mean the provision or the treaty does not grant a permission. The negative phrasing is a well known technique for expressing the strictness of the conditions under which a right, excuse or permission may be exericsed. Both the Vienna Convention on the Law of Treaties and the ILC Articles on State Responsibility use this technique. The former with regard to fundamental change of circumstances (Art. 62) and the latter with regard to necessity (Art. 25). Both of these are framed in the negative (they “may not be invoked . . . unless”) but it is clear that (i) these rules allow the invocation of these doctrines and (ii) that it is these very rules that allow such invocation. Despite the negative wording the provisions are conferring a “right” to rely on these doctrines, but in very strict circumstances.

    More generally, the failure to find such positive words as are found in Art. 78 should not mean that the a treaty or a branch of law does not grant such a permission. The general scheme of the law can be taken to prohibit or to permit something even though the law does not say – “X may” or “X may not”. In the Alvarez Machain case, the US Supreme Court held that forcible abductions were not contrary to a US – Mexico Extradition treaty because the treaty did not prohibit abductions in explicit terms. The decision was roundly criticised.

    When one is looking to see whether the law prohibits or permits a course of action, one must look at the general context of the law. Where the law makes detailed regulation of a particular matter and suggests that anyone who falls within the conditions established by the regulation is acting lawfully, the law is allowing such conduct. Therefore, it should be taken as providing a permission to engage in that act subject to the conditions imposed. The law is saying, if you do all these things then you are acting lawfully. In short, conditions on lawful detention is the same as conditional permission to detain.

    To return to Marko’s point, there is a conflict here because we have two sets of rules which point in opposite directions. One sphere (the GCs) point in the direction that a certain type of detention (detention undertaken in armed conflict for security reasons) is lawful and may be undertaken even without strict judicial supervision. The other (the HR treaties – and the ECHR in particular) suggests that detention may not be undertaken merely for security reasons or without judicial supervision.

  5. Dapo,

    I take your point about the positive or negative phraseology of a treaty being less than all-important. What matters is what the provision does, and that, as always, falls to be determined according to all the various rules of treaty interpretation.

    I particularly agree that a provision saying “X may not…, except…” may describe a permission of limited scope, rather than a limited prohibition. Your examples are well-taken.

    That said, I’m still not entirely taken in by your reading of the words of GC IV (or III). Article 78 of GC IV, to me, seems to say that an Occupying Power “may, at the most”, i.e. may not do more than, intern people. Article 41 of GC IV (which I have set out above) says as much somewhat more clearly, and I should be surprised if Article 78 was materially different.

    But, of course, I accept that the wording may not control. I also find it at least likely, however, that the GCs as a whole were intended to limit the effects of warfare on (the various classes of) protected persons, and not to give powers to the parties to the conflict. They would then prohibit or not prohibit, but never positively permit.

    However, I would accept that my argument along these lines does not take me very far. As you say,

    ‘where the law makes detailed regulation of a particular matter and suggests that anyone who falls within the conditions established by the regulation is acting lawfully, the law is allowing such conduct.’

    Now, I would, as you know, prefer to speak of the law (of the GCs) not as providing that something is lawful, but rather that something is not unlawful. But that does not matter, aside from the fact that either way of putting it is somewhat conclusory. What I think does matter is this: if a treaty declines to make something unlawful, and if the treaty is meant to be exhaustive of the issue of lawfulness, then it does provide, positively, that the act in question is lawful.

    We are left, then, with the question whether the GCs are exhaustive of the issue of the lawfulness of the acts to which they apply. Given such provisions as Article 72 AP I, the reference to other human rights law in the preamble to AP II, and the Martens Clause, I find that hard to believe. (For this point based on the Martens Clause alone, see Heintze, ‘On the Relationship between Human Rights Law Protection and International Humanitarian Law’, International Review of the Red Cross 86 (2004) 789)

    Finally, on Marko’s point about the conflict of norms, I have a feeling there may be two concepts of conflict. I think you would be right, on any view, to say that the GCs ‘point in the direction that a certain type of detention… is lawful.’ They do even if they only decline to prohibit but do not allow such detention. The upshot of that is that this form of detention will not be held to be ‘arbitrary’ under Article 9 of the ICCPR so long as it remains within the GCs. Also, the tolerance of such detention by the GCs raises a conflict with Article 5 of the ECHR in the sense that the GCs suggest that the detention ought not to be unlawful. That leads to a result-oriented difficulty with the application of Article 5 of the ECHR: one would naturally try to arrive at the same conclusion under the ECHR, because the GCs may be assumed not to condemn the acts in question for a reason.

    But that is not a conflict of treaties stricto sensu. For that, we would need one norm that is directly opposed by another. The prohibition under Article 5 of the ECHR therefore can only come into conflict with an actual permission, or legal power, to do the very same act. That is what I believe IHL does not contain.

  6. Tamás Hoffmann

    Marko,

    I don’t think that the conflict between the GCs and ECHR was unavoidable. The UK could have easily avoided this problem by derogating from the ECHR. Article 15 allows for derogation “in time of war”, hence the norm conflict would have never actually occurred.
    It is actually a real mistery for me why the UK never used this option.

  7. Marko Milanovic Marko Milanovic

    Tobias,

    For the reasons given by Dapo, I disagree with your interpretation of IHL – but I realize that this point is open to reasonable disagreement. But honestly, I don’t think that we should be overly formalistic. To my mind, there is little difference between a norm that says “you have a right to do X” and a norm that says “it is lawful and permitted for you to do X”. Both norms equally conflict with another norm which says that “it is prohibited to do X.”

    We have a similar problem, for instance, with the right to life provisions in the ICCPR and the ECHR. There is undoubtedly a norm of IHL which says that it is lawful to kill combatants, so long as they are not hors de combat. There is no need to establish military necessity to kill combatants – you just do – nor is there a requirement to employ non-lethal weapons or to capture them before you can kill them.

    Again, Art. 6 ICCPR sets a standard, prohibiting arbitrary deprivation of life, and we can interpret that standard through IHL as lex specialis or whatever. But Art. 2 ECHR is different – it again sets a list, together with a necessity requirement that does not exist in IHL. However, unlike the ICCPR, the ECHR allows derogation from Art. 2 in regard of lawful acts of war – except no state has made such a derogation so far. So what do we do? Have all persons killed in regular combat in Iraq been unlawfully killed, as there was no derogation? Or can we just strain the language of the treaty, and ‘interpret’ it forcibly so we reach a reasonable result?

    But if you want an even better example of unresolvable conflict, here’s a good one – the vexing problem of so-called ‘transformative occupation’. Assume that the UK becomes the belligerent occupant of a territory that has Sharia in its domestic law – e.g. Iran. The Penal Code of Iran prescribes stoning as a punishment for adultery, and even has a stunning provision in Art. 104 which provides that ‘The size of the stone used in stoning shall not be too large to kill the convict by one or two throws and at the same time shall not be too small to be called a stone.’

    Since it is in effective overall control and thus possessing jurisdiction over a part of Iranian territory, the ICCPR and ECHR (contra Al-Skeini) apply to the UK. Both treaties require the UK to ensure or secure the human rights of all individuals within its jurisdiction, even against violations by other actors. Stoning for adultery is at the very least inhuman treatment under either of these treaties. On the other hand, Art. 64 GC IV provides that ‘The penal laws of the occupied territory shall remain in force, with the exception that they may be repealed or suspended by the Occupying Power in cases where they constitute a threat to its security or an obstacle to the application of the present Convention.’

    So, the domestic Sharia law must be kept in force, with two possible exceptions. Does maintaining stoning for adultery constitute a threat to the security of the UK, the occupying power? Hardly. Is it an obstacle to the application of GC IV? Well, no, not really, though we could perhaps do some ‘interpreting’ here. In reality, however, there is no GC IV obligation that the UK could not fulfill while allowing the courts of the ancien regime to go about their business as they’ve done before.

    What we are thus faced with is an unavoidable and unresolvable norm conflict. A state has a political choice to make, and that is that. Yes, we would all like it to choose the ICCPR and the ECHR over GC IV in this particular instance, but we do so because of our own value judgment that this is how things should be, not because the law warrants this choice.

    Tamas,

    Yes, quite right, I agree fully that the norm conflict was avoidable through derogation. But a derogation might still not have ended the matter. Remember, it has to be ‘strictly required by the exigencies of the situation’. Detention on preventive grounds might qualify, but what about judicial review of detention, which is not required by GC IV?

    As for the reason for the failure by the UK to derogate, it is really no mystery. Had it derogated, it would have acknowledged beforehand that the ECHR did apply extraterritorially, and would have opened the doors to litigants both before its domestic courts under the Human Rights Act and in Strasbourg. But the litigants are coming nonetheless.

  8. Marko,

    I’m not sure we’re seeing eye to eye in our debate about the meaning of IHL. I would not argue that there is any material or other difference between the proposition that “you have a right to do X” and “it is lawful and permitted for you to do X.” In fact, I can think of none, and would agree that either rule conflicts with another provision saying “it is prohibited to do X.”

    What I would argue is that there is a material difference between the proposition “it is permitted / the State has a legal power to do X” (which you appear to find in IHL) and “it is not prohibited to do X” (which is what I find in IHL). The latter understanding remains entirely open to any further rule prohibiting X; there is no conflict between the absence of a prohibition in one treaty and the prohibition of the same thing in another (unless the first treaty is intended to be exhaustive). There is, however, a definite conflict between a permission to do X and a prohibition of X.

    Admittedly, even if IHL only says “it is not prohibited to do X”, there is a conflict in one particular sense. A State will be told by IHL that it can do something, and by IHRL (probably the ECHR) that it can’t. But that’s not because IHL permits/authorises something, but only because it does not prohibit a certain type of behaviour. True, there is a problem in that a State party to an armed conflict should be able to take POWs, but that is no more a conflict of treaties than is the necessity for a State to be able to combat crime. The problem in international law is one wholly within the human rights treaty: the right is juxtaposed to the societal interest in the interference. Very much the ECtHR’s daily grub.

    Of course, none of this matters from a purely practical point of view, as the existence or otherwise of a conflict of treaties entirely fails to affect the operation of either treaty (contra Al-Saadoon, per Laws LJ). The ECHR, with its prohibition on the taking of POWs, would apply even if GC III authorised such deprivations of liberty.

    This obviously presupposes that the ECHR really is completely opposed to that; my guess is that the European Court would apply Article 5 of the ECHR as if it was Article 9 of the ICCPR, as a simple protection against arbitrary deprivations of liberty. That does not exactly have logic on its side, but I think that’s more or less what the Court has done in the Chechnyan Article 2 cases.

    As for your – not so – hypothetical point about stoning and the UK’s obligations under the ECHR, I think the point has been made, or at any rate adverted to, by Lord Brown of Eaton-under-Heywood in Al-Skeini. His conclusion, as it happens, was not a million miles from that in Al-Saadoon (and therefore inaccurate). He appeared to think that UK ‘jurisdiction’ over Iraq should not be held to exist, as the UK’s obligations under the ECHR would of necessity require it to amend the local law, contrary to Article 43 of the Hague Regulations (the precursor and more or less and equivalent to Article 64 of GC IV).

    The point has also been considered by Sassòli in his piece ‘Legislation and Maintenance of Public Order and Civil Life by Occupying Powers’, EJIL 16 (2005) 661, and – in much more condensed form, to put it mildly, by yours truly, in ‘The ECHR in Iraq. The Judgment of the House of Lords in R (Al-Skeini) v Secretary of State for Defence’, JICJ 6 (2008) 115.

    There is one simple and one more problematic point to be made in this connection:

    1. I think it fairly obvious that Articles 43 and 64 have nothing to say on the ECHR being binding on the acts of British soldiers. They – largely – prevent legislation made under the title of belligerent occupation, but have no quarrel with legislation affecting a State’s own organs, which any State is at liberty to make anyway. Implementing the ECHR in Iraq/Iran is therefore not problematic as regards the negative obligations incumbent upon British public authorities.

    2. The UK’s positive obligations are more of a problem, in that they might force the UK to interfere with what the local courts and authorities and private citizens are doing, and to do so my means of new legislation. That may be contrary to Articles 43 and 64. I feel there are two possible answers to this:

    a. We could try and read down Articles 43 and 64. Under Article 43, the UK may be “absolutely prevented” from respecting the local law on account of the ECHR. Also, in addition to your tentative proposal on applying Article 64, Sassòli and I suggest that Article 64 may be read as a more general let-out clause from the strictures of Articles 43 and 64 for human-rights related legislation (transformative legislation, if you will). Of course, the – only available – reason for that is that GC IV is itself concerned with human rights protection.

    b. We may also try and read down the extent of the UK’s positive obligations. For one thing, such obligations, like all human rights obligations, are always fact-specific. The need for protection is therefore to be assessed not according to the standards of England, but according to those of Iraq/Iran. That does not help much with your example; there is no way that the ECHR could possibly tolerate stoning, as much as even Article 3 may be dependent on the particular vulnerability of the victim (as possibly conditioned by their culture).

    But even if there is a positive obligation to protect in principle, the UK may not be bound to discharge it in all circumstances. It is in the nature of positive obligations that they only require such measures to be taken as are “reasonably available” (Z v UK, para 99). If, for instance, important security constraints counsel strongly against certain measures of protection, those measures need not be taken (see E v Chief Constable of the Royal Ulster Constabulary [2008] UKHL 66, [2008] 3 WLR 1208, and the ECtHR case-law cited there). That alone may occasionally justify a refusal to protect against the workings of the local system. Moreover, considerations of law, specifically Articles 43 and 64, may render the duty to protect an “impossible and disproportionate burden on the authorities” (Osman v UK, para 116). Because the UK is not allowed to take certain protective measures, it needn’t do so.

    Note that this is not the same idea as in Al-Saadoon: I would not countenance the idea that the UK does not have Article 1 ‘jurisdiction’ because of its constraints in general IL, but I think it arguable that its positive obligations will on that account be reduced, such positive obligations always being highly dependent on the facts and far from absolute. (Al-Saadoon, of course, concerned the “Soering” obligation not to extradite, a negative and absolute obligation)

    Again, that may not help very much with our conflict of treaties, as it would take some very cogent reasoning before a duty to protect against horrific abuses could be dispensed with. Legal constraints on the occupying power may not be enough to render the positive obligation a “disproportionate burden” where the facts come down so heavily in favour of intervention.

    Finally, I very largely agree with your reply to Tamás. Just one question: doesn’t Al-Jedda show that there is a possibility of obtaining the judicial review of detentions in Iraq? The Court of Appeal in Al-Jedda took the on-going proceedings (its own) as proof that the man was not being held in a “legal black hole” (referring to Lord Steyn’s description of Gitmo).

  9. Marko Milanovic Marko Milanovic

    Tobias,

    Again, I agree almost entirely. I just wanted to note how your latest comment illustrates a very important, broader point: if we want human rights treaties to apply extraterritorially and in wartime, there is a price to be paid. They must be watered down to remain effective in such circumstances – yet they mustn’t be watered down too much, as that would compromise the whole regime. I, for one, would never read down the positive obligations under the ECHR to allow stoning in an occupied territory, just for the sake of avoiding a norm conflict.

  10. Marko,

    agreed. Neither would I; my second to last paragraph in my last comment was somewhat unhappily put. I would not actually regard the reading down of the positive obligations in your hypothetical case as ‘helping’ with our problem, at least not in the sense that this would be desirable. For other cases, however, I might see a possible proportionality argument developing, taking into account Article 43 HR and Article 64 GC IV, in addition to the specifics of Iraqi society. I would prefer reading down Articles 43 and 64, though.

  11. Dapo and Marko,
    To level things out, I would like to strongly support Tobias on the question of whether the Geneva Conventions themselves contain an authority to detain. Not only that you have to admit that the wording does not contain an authorization, but pre-supposes other authority (presumably military laws and regulations of the detaining power). This was also the purpose of the Geneva Conventions: when States do what they feel they need to do in armed conflict, the Conventions would provide minimum rules. But they were emphatically not meant to add to the war powers of any party to the conflict, the same way as they did not want to delve into jus ad bellum.
    In this light, your argument fails to convince because it does not point to any authority to detain as such, but only rules to be followed if and to the extent a party detains. If the HCPs had meant to include an authority to detain, they had provided it explicitly. I think the Gherebi judgment is correct on this point, and very much lament that the Obama administration continues to fail to understand that in the absence of applicable laws of war crimes on terrorist activity beyond armed conflicts, military tribunals do not make sense.
    Best wishes, Andreas

  12. Mónica García-Salmones

    Marko,

    many thanks for the post and also to the others for the interesting debate. I would only like to express my doubts regardig the use of the concept of fragmentation in this context. If as Tamás and Marko say the conflict was avoidable by derogation, the question seems to be ultimately about a political choice by the UK. I am sure that this must be a fascinating challenge for the lawyers dealing with these questions in the UK. However this looks rather like a matter of legal skills and political strategy. It is difficult for me to see the theoretical necessity to point out to a problem ‘above the problem’ such as fragmentation would be, in this case.

  13. Francesco Messineo Francesco Messineo

    Marko and the others,

    Do you think that the existence of a derogation provision in the ECHR should be taken into account when deciding whether a norm conflict is in fact unavoidable, and whether it is a conflict in the first place?

    Could it be said that because the ECHR framework contains a rule which would have allowed the obligation to fade away, this rule has a ‘procedural’ element which, if frustrated, makes the ECHR framework prevail over the non-derogated treaties?

    Could it be said that states parties to the ECHR agreed that all potential conflicting obligations would be dealt through that system, so that if they do not derogate, the obligation in the ECHR prevails?

    Even answering yes to all three questions, not every problem would be solved (Al-Jedda 103 UNC situations, for instance). But I’d be happy to know what you think.

    Finally, there is obviously always the possibility of using other criteria to have certain obligations prevail by virtue or their ‘ethical underpinning’, as E. De Wet and others put it when discussing the constitutionalization of international law – but that’s another story (as is the domestic constitutional argument).