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Home Armed Conflict Turkey, Aggression, and the Right to Life Under the ECHR: A Reaction to Professor Haque’s Post

Turkey, Aggression, and the Right to Life Under the ECHR: A Reaction to Professor Haque’s Post

Published on October 22, 2019        Author: 
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Professor Haque yesterday published a thought-provoking piece on this blog arguing that the Turkish incursion against Kurdish forces in Syria, beyond being a violation of the UN Charter, also amounts to a violation of the right to life under the ECHR. His reasoning, which is sound, is based on the Human Rights Committee’s rather controversial new General Comment 36 on the right to life under the ICCPR, where the Committee concludes that States Parties to the Covenant engaging in acts of aggression resulting in deaths violate ipso facto Article 6 (for its part, the HCRttee itself draws on the opinion of academics such as William Schabas who originally developed the argument).

I do not disagree with Professor Haque’s logic, which is, like that of the HRCttee, internally sound. However, I disagree with the exceptionalism which often seems to characterize attempts to include jus ad bellum in the lawfulness test for arbitrary deprivation of life– and, respectfully, Professor Haque’s piece suffers from that same exceptionalism.

The classical view of permissible violence in armed conflicts, based on the long-standing distinction between jus in bello and jus ad bellum, is actually a coherent and credible legal position – one that has the additional advantage of being the mainstream interpretation. It is entirely plausible to maintain that the UN Charter does not mix very well with human rights or humanitarian law instruments. The whole structure of IHL has been built on the premise of its separation from the lawfulness of resorting to force, and the ICRC itself continues to strongly defend this position.

But the emerging understanding of the right to life in light of jus ad bellum is also a coherent, well-structured and convincing interpretation of treaty law, from the point of view of human rights law taken in relative isolation. The fact that this interpretation has also been authoritatively endorsed by a treaty body gives it an aura of credibility that few “progressive” interpretations raised in doctrine can usually aspire to. But the mere fact that a particular interpretation of treaty law makes sense does not mean that it should actually be made.

At this moment we face two credible and entirely legitimate but opposing interpretations of the same legal provisions. This might be normal for any situation where the common view is challenged by an emerging legal paradigm – perhaps it was no different several decades ago when human rights law, not as abstract principles but as specific rights, came to be recognized as truly applicable to armed conflicts. As one paradigm will eventually prevail, we must resort to extra-legal considerations in order to weigh them against each other.

Behind the legal reasoning of those lawyers who champion the “emerging paradigm” lies the admirable desire to prohibit war – it is that same desire, perhaps, that led the founder of the United Nations to renounce the use of force in its entirety. Contemporary lawyers now seem to view human rights as an additional tool to pressure States into refraining from using force in violation of the Charter.

We must however recall that, in the immediate aftermath of World War II States again gathered for a conference in Geneva to negotiate the latest version of the Geneva Conventions. The founding members of the United Nations knew very well that no prohibition could be full-proof; otherwise, they would have simply done away with IHL as superfluous.

The new paradigm therefore carries several major risks. First, it is difficult to deny that the approach of the Human Rights Committee tacitly discards IHL as the less protective branch of international law. If killing the defending State’s combatants in an international armed conflict resulting from unlawful use of force is prohibited anyway under human rights law, what difference does it make that it is permissible under IHL? Were the new paradigm actually to actually convince States not to engage in unlawful use of force, then this would make sense, however I do not believe that any of us are naïve enough to make this assumption. Ergo, States that do engage in such violations (such as Turkey), rather than having more incentive to respect human rights law, now have less incentive to respect IHL.

The second problem relates to the appropriateness of having human rights bodies decide on jus ad bellum issues (see by analogy Lubell’s piece for a discussion of HR bodies applying IHL), as well as their capacity to handle potentially huge numbers of communications arising from a foreign invasion. The HRCttee seems to pre-empt this somewhat by requiring “deaths” to arise from acts of aggression in order for there to be a violation of the right to life, meaning that the mere threat to life would not be enough for a violation to occur However, it is simply logical to conclude that, if all killing is unlawful (including that of combatants), then so too must be all other acts otherwise permitted by IHL – such as the requisitioning of civilian property by the Occupying Power, or the lawful interment of civilians and the detention of prisoners of war.

Finally, turning to the ECHR, sound arguments may be made under the Convention in support of the new paradigm. However, the European Court has already had several opportunities to deal with deaths arising from unlawful use of force in international relations and has never yet found a violation by means of the UN Charter (e.g. Al Skeini v. United Kingdom). In its 2014 decision in Georgia v. Russia II, it said that “(…) Article 2 must be interpreted in so far as possible in the light of the general principles of international law, including the rules of international humanitarian law which play an indispensable and universally accepted role in mitigating the savagery and inhumanity of armed conflict” (¶ 72). It is entirely possible for the Court to include jus ad bellum in these general principles of law – but in reality very unlikely, particularly if this would lead to the dilution of IHL and its role in “mitigating the savaregy” of armed conflict. In fact, it ought to be borne in mind that in the Hassan case, the Court actually downplayed the UK’s obligations under Article 5 of the ECHR to accommodate IHL, so the likelihood of it disregarding IHL to accommodate the UN Charter seems very far-fetched.

I am entirely in favour of using human rights to ensure greater protection of victims of armed conflict situations, but this should be done with great restraint so it would not backfire (see in this regard the article by Marko Milanović on norm conflicts between IHL and HRL, particularly his conclusion). Some degree of rapprochement is therefore necessary from both sides of this debate. For example, as a lawyer, I could agree that aggression is at the very least an ipso facto violation of the obligation to fulfil human rights. This may be less logical than simply concluding that there is a flagrant violation of the right to life; but we must remember that logic and common sense are not sources of international law.

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7 Responses

  1. Dear Pavle (, and dear Adil, if you read this),

    Thank you for this interesting exchange of views. I agree that Adil’s argument is logically coherent and fits neatly with the HRC’s GC36, but am equally supportive of Pavle’s argument, which I think brings some necessary nuance.

    If I may pose one question, to the both of you. Could an important consequence, even in the view that any deprivation of life which results out of aggression is ipso facto a violation of the right to life, be in the response thereto? Serious violations of IHL are subject to direct individual criminal responsibility under international law, as war crimes. At the same time, combatants enjoy combatant immunity/privilege for lawful acts of war (ie also lethal force in compliance with IHL). Thus, the perhaps strange conclusion that any use of lethal force violates the right to life, does not as such dismiss the relevance of IHL, because insofar as *individual* responsibility is concerned, IHL still protects individual service members from criminal responsibility. Thus, any use of lethal force by an aggressor leads to State responsibility, but not individual responsibility of individual service members (though it does, potentially, for the leadership crime of aggression itself).

    A relevant question then becomes to what extent the duty to investigate violations of the right to life, as enshrined in human rights law, nonetheless call on the State to investigate, and if appropriate prosecute and punish violations of the right to life, for conduct which did comply with IHL. That, in my view, may lead to a normative conflict between IHL and IHRL, which could be resolved through application of lex specialis derogat legi speciali, as a tool for norm conflict resolution – dependent on a context sensitive assessment.

    I agree that if an aggressor State knows that any use of lethal force necessary violates the right to life, this might take away an incentive to comply with IHL. But would the above not, at the least, nuance that conclusion somewhat, in the sense that there certainly remain incentives to comply with IHL?

    Best,
    Floris

  2. From a purely legal point of view, you can make a sound argument that goes in both directions. What is however missing in both pieces, is a more pragmatic view on the desirability of including jus ad bellum in the lawfulness test. If any death resulting from the use of force in violation of jus ad bellum ipso facto violates the right to life, then what kind of incentive can human rights law still provide to an aggressor State? If you violate the right to life anyway, why bother making a distinction between military and civilian targets, between proportionate and disproportionate use of force, etc.? The sad reality is that human rights law is ineffective in preventing conflict, at best it can aspire to “mitigate the savagery and inhumanity of armed conflict”. If it wants to play that role, it however needs to “pick its battles” and be more humble and realistic in its aspirations than what was proposed in yesterday’s blog post.

  3. Dear Pavle, Floris, and Laurens,

    Pavle, thank you for this thoughtful reply.

    Floris, I agree with everything you say. The application of human rights law does not affect whatever incentives international criminal law may give individuals to refrain from the crime of aggression, war crimes, or (for leaders) both, either directly or indirectly through exceptions to immunity from foreign prosecution.

    As for State responsibility, as I understand the argument, we are to imagine a State that is hell-bent on aggression but on the fence regarding IHL. If violating IHL will trigger human rights mechanisms, then the State will obey IHL. If aggression already triggers human rights mechanisms, then the State will still commit aggression, but also violate IHL, on a kind of “might as well be hanged for a sheep as for a lamb” logic. And this is despite the fact that leaders will thereby compound their criminal liability and soldiers of all ranks will thereby incur criminal liability. Is that right?

    Many thanks,

    Adil

  4. Pavle Kilibarda

    Dear Adil, Floris and Laurens,

    Many thanks for your insightful comments.

    Adil, thanks again for sharing your thoughts on this issue in your post the other day. As I said, I do not disagree with your reasoning (nor the purpose of this interpretation, which is laudable), but I do think it needs to be considered very, very carefully so we do not end up causing more harm then good.

    Laurens, I fully agree with your comment. I think that is more or less the idea I tried to convey in my reaction to Adil’s post.

    Floris, that is a very interesting argument. I can see two issues with it. First, the right to life is non-derogable, even in the ECHR, as Adil correctly pointed out, and the ECtHR has already accepted the obligation to investigate violent deaths to continue in times of ACs (Al Skeini, Jaloud). I cannot help but find tension between the R2L obligation to investigate violent deaths and the combatant privilege under IHL if we were to accept this paradigm, but there are ways to overcome this. Second, the issue isn’t really about individual soldiers’ actions (in fact, I very much doubt the HRCttee or any other body would argue that regular troops should be prosecuted for murder; this would certainly raise an issue under the principle of legality). It’s really all about State responsibility, and killed combatants’ families would still be able to make claims of R2L violations before human rights bodies. It would essentially boil down to the same thing, in my view.

    Best regards,
    Pavle

  5. Hi Pavle,

    Thanks for your gracious reply (and post). I don’t wish to press the point, but since others share your concern, I’ll just finish my thought.

    Yes, if an aggressor State conforms to IHL, it nevertheless violates the human right to life of every person it kills. If, instead, it also violates IHL, then it will presumably kill many more people in violation of their right to life. It will thereby compound whatever consequences (financial, reputational) it would (by hypothesis) have incurred had it conformed to IHL, killed fewer people, and committed fewer human rights violations. Or so I would think.

    This is all assuming that human rights law gives aggressor States marginal incentives that affect their behavior. If it does, then it will give aggressor States the same marginal incentive to respect IHL that it gives them now, no more but no less.

    I’m not sure that assumption is correct, and nothing in my argument depends on it. I don’t personally “view human rights as an additional tool to pressure States into refraining from using force in violation of the Charter.” I view human rights as violated by the use of force in violation of the Charter. That seemed worth saying.

    Best wishes to all,

    Adil

  6. Omar N

    Dear Pavle, Adil, Laurens et al.

    Great discussion. I do think that sizing up the benefits and disadvantages of human rights/jus ad bellum legality cannot go very far until we are up front about our basic assumptions with regards to IHL’s purpose and function and at least agree about where we disagree.

    The critical issue seems to be the understanding of what the principle of equal application of jus in bello and jus ad bellum, and the related principle of separation of these two bodies of law really entails. Evidently some understand it to mean that an aggressor State gets legal cover (i.e. no responsibility) for killing so long as it complies with jus in bello (citing for example the Zonal Trial “Hostages” case). As Michael Waltzer describes the principle, it gives soldiers from both sides the “equal right to kill”.

    Others understand it to mean that killing in compliance with jus in bello is not of itself unlawful within jus in bello’s framework but does not preclude that killing being wrongful under other rules of international law. For example in the Genocide (Croatia v. Serbia) case the ICJ observed that an act could in principle comply with jus in bello while violating the Genocide Convention. Equal application means simply that both parties must abide by the restrictions of jus in bello, and that persons from both sides are to be granted the protections stipulated under that body of law.

    It is pretty clear which reading is more compatible with the Human Right’s Committee’s interpretation of the right to life.

    I would like to add a question: it seems to me from the discussion that there is also an assumption that the right to life we are considering are those of civilians. Couldn’t the Human Right’s Committee’s formulation also apply to the right to life of soldiers of the defending State (and maybe even that of the aggressor’s own soldiers)? If that is correct, would you take the same as to the potential impact of human rights law on the parties incentives to comply with jus in bello?

    Many thanks and best

    Omar

  7. Hi Omar,

    I agree with everything you say. Unsurprisingly, I take the second view of IHL’s purpose and function.

    Yes, every combatant killed in furtherance of aggression is killed in violation of their right to life. If human rights law gives aggressor States marginal incentives, then it gives them incentives to minimize the number of combatants they kill. For what it’s worth, I doubt human rights law deters aggressor States even at the margins.

    As for the human rights of the aggressor State’s own soldiers, I don’t have much to say other than to recommend Tom Dannenbaum’s book.

    All the best,

    Adil

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