ESIL-International Human Rights Law Symposium: ‘Operationalising’ the Relationship Between the Law of Armed Conflict and International Human Rights Law

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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.

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    Jordan says

    February 15, 2016

    Thank you for this important post. Readers may note the 2015 U.S. Department of Defense Law of War Manual states in conspicuous, if not surprising, error: "the law of war, as the lex specialis of armed conflict, is the controlling body of law with regard to the conduct of hostilities and the protection of war victims." As documented in my article Human Rights on the Battlefield, 47 George Washington International Law Review 509 (2015), available at http://ssrn.com/abstract=2563329 , not only does human rights law apply on the battlefield but two forms of human rights law clearly prevail over ordinary laws of war: (1) customary human rights as right guaranteed through the United Nations Charter [in view of Article 103], and (2) customary human rights that have an additional peremptory status as rights jus cogens. The article also identifies other forms of human rights primacy, makes the point that following the laws of war on the battlefield will result in compliance with global human rights law (but not the European Convention unless a relevant state party derogates in time of war under Article 15), and addresses many relevant human rights norms under customary law and the ICCPR and their relation to specific laws of war.
    That the 2015 DOD Manual is presently in significant error, and that there are some 15 other errors or areas of concern, has been the focus of a new draft article Egregious Errors and Manifest Misconceptions in the 2015 DOD Law of War Manual, available at http://ssrn.com/abstract=2712004 .
    I would welcome any comments regarding such error(s) in the present version of the U.S. DOD Manual and, in any event, applaud your attention to these important points about forms of human rights primacy and the interrelation between human rights and the laws of war.

    Jordan says

    February 16, 2016

    p.s. please see the Egregious Errors draft article with respect to the so-called persistent objector preference and why it is not part of customary international law (especially why a later ICJ case necessarily rejected dicta in 1950 and 1951 ICJ cases). I would appreciate further cites regarding rejection of the pop.

    Ka Lok Yip says

    February 18, 2016

    Thank you for this post. May I comment on two points:

    (1) The post refers to human rights bodies ‘applying the law of armed conflict’. I would like to note the difference between interpreting a treaty by taking into account another law and actually applying that other law ‘directly to the facts in the context of which the treaty is being considered’ (Gardiner, Treaty Interpretation, p. 320).

    While human rights bodies can no doubt take LOAC into account in interpreting IHRL (pursuant to art 31(3)(c) VCLT or its customary law equivalent), they have no competence to apply LOAC in the sense of determining the rights and obligations of states under LOAC, as acknowledged by the American Court of Human Rights in the Las Palmeras Case, Judgment on Preliminary Objections (para 33).

    If a human rights body were to determine the rights and obligations under LOAC of states not having consented to its jurisdiction (e.g. if the rights and obligations under LOAC of two states in an IAC are determined as the prerequisite to determining an IHRL claim filed by an individual complainant whose national state has not consented to the body’s jurisdiction), it would arguably violate the Monetary Gold principle of jurisdiction based on consent (Case of Monetary Gold Removed from Rome in 1943, p. 32).

    Clarifying human rights bodies’ competence and jurisdiction has not merely procedural but also methodological and substantive implications as explained below.

    (2) The post also ‘highlighted that violations of both the law of armed conflict and international human rights law are primarily civil in character’. While it is true 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’, IHRL does not have the same direct correlation to the actus reus of crimes as LOAC does.

    Although not every violation of LOAC provisions involves individual criminal responsibility, every violation of LOAC provisions is, if the penal sanctions prescribed by LOAC are implemented correctly, itself the actus reus of a crime. They are not necessarily war crimes, but simply ‘acts contrary to the provisions of [LOAC] other than the grave breaches’ (e.g. art 146, 3rd para, GCIV) that according to the ICRC commentary (p. 594) and the ICRC Model Law Geneva Conventions (Consolidation) Act (art. 4) are required to be suppressed as criminal offences by penal measures, including in the enemy jurisdiction where combatants are not immunised by combatant immunity for violations of LOAC.

    On the contrary, a violation of IHRL provisions is not itself the actus reus of crimes. Unlike LOAC, IHRL does not oblige or envisage states to criminalise breaches of its own provisions but requires states to, among other things, adopt such laws or other measures as may be necessary to give effect to the rights recognized in these provisions (e.g. art 2(2) and 2(3)(a) ICCPR).

    The outlawing of crime by criminal law partially implements but does not fully discharge these IHRL obligations; at the same time, the continuing occurrence of criminal acts despite their being outlawed does not per se violate these IHRL obligations. This incongruence between the obligations of IHRL and the actus reus of crimes indicates that the content of IHRL requires something different than individual conduct – it requires long term planning, structural measures and positive steps (e.g. see HRC general comment no. 6, para 5), which are beyond the capability and responsibility of identifiable individuals and can only be accomplished by collective entities e.g. states.

    On the other hand, the direct correlation between the content of LOAC and the actus reus of crimes can be explained by the unviability of longer term, structural measures to maximise human welfare in armed conflicts when individuals are relied on and expected to directly uphold certain minimum standards of behaviour regardless of their political allegiance, existential threats or time constraints, failing which criminal responsibility, though not necessarily for war crimes, could potentially ensue.

    The primary address by LOAC to individuals was recognised by Baxter (‘Forces for Compliance with the Law of War’ (1964) 58 ASILP 82) who observed that ‘[s]ince the law of war speaks primarily to individuals and it is individual persons who cause harm to others through failure to comply with the law, it is important to consider what minatory or deterrent effect the possibility of prosecution by the enemy may exercise upon the mind of a member of the armed forces or of a civilian.’ Rowe (The Impact of Human Rights Law on Armed Forces, p. 116) also noted that LOAC ‘lends itself to the prohibition of certain forms of conduct and thus the creation of criminal or disciplinary offences’. Provost (International Human Rights and Humanitarian Law, p. 106) argued that ‘in the aftermath of the Second World War, individual penal responsibility replaced state responsibility as the main sanction for violations of the laws and customs of war’.

    These crucial differences in the substantive content of IHRL and LOAC, appropriate to their distinct addressees, risk being overlooked and run aground if a human rights body decides human rights claims by simply ‘applying LOAC to the facts’ rather than ‘taking LOAC into account in interpreting and applying IHRL to the facts’.

    By way of illustration, if a human rights body adopts the first approach of ‘applying LOAC’ to a ‘routine’ attack in an IAC to decide whether IHRL has been violated, it would apply the proportionality calculation under art 51(5)(b) API to see if the incidental civilian loss is proportional to the anticipated military advantage and the precautionary rule under art 57 API to see if the necessary precautions have been taken, each to the standards of a ‘reasonable military commander’.

    If a human rights body adopts the second approach of ‘taking LOAC into account in interpreting and applying IHRL’ to such a ‘routine’ attack, it could take into account many other factors in addition to LOAC. These other factors may include jus ad bellum, as many (HRC General Comment no. 6, para 2, Gowlland-Debbas, “The Right To Life And The Relationship Between Human Rights And Humanitarian Law.” 137-138, Jinks, “International Human Rights Law in Time of Armed Conflict.”, p. 669, Nowak, U.N. Covenant on Civil and Political Rights CCPR Commentary, p. 125-126, Ramcharan, “The Concept and Dimensions of the Right to Life,” p. 12, Schabas, “Lex Specialis? Belt and Suspenders? The Parallel Operation of Human Rights Law and the Law of Armed Conflict, and the Conundrum of Jus Ad Bellum,” 607) have noted, whether there are ‘clear guidelines and criteria governing the use of force’ (required in Makaratzis, para 70), whether rescue operation and planning are adequate (required in Finogenov, para 237-66) or whether other positive steps that could have been taken by the bearers of IHRL obligations (as collective entities, not just ‘reasonable military commanders’) were taken.

    Under this second approach, with a clear bifurcation of standards between IHRL and LOAC, violations of IHRL need not be seen as triggered by the violations of LOAC and need not involve any actus reus of crimes of individual members of the armed forces. Individual members of the armed forces will continue to operate strictly according to the LOAC while their polity will need to ensure that in addition to the compliance with LOAC, all required actions have been taken to protect and promote human rights in order to avoid IHRL violations.

    Under the first approach, if the scrutiny of the many different factors usual in IHRL adjudication is regarded as an ‘application of LOAC’ in the fluid ‘intermingling’ between IHRL and LOAC, any violation found would become a ‘breach of LOAC’ which as explained is in principle an actus reus of crimes. If the circumstances in McCann were adjusted to those in an armed conflict, it is unclear if the standards imposed by the ECtHR on the planning and organisation of the operation necessarily represented no more than those expected of a ‘reasonable military commander’- if they represented more than those, IHRL is clearly increasing the obligations on the individuals as compared to LOAC and one should question whether they can fairly be expected of individuals operating in ‘the reality of armed conflict’; if they represented no more than those, one should question why the bearers of IHRL obligations, which are collective entities with different institutions, vast resources and multiple capabilities, be held merely to the standards of individual ‘reasonable military commanders’?

    Jordan says

    February 19, 2016

    Ka Yok Lip: please see my draft article on the DOD Manual regarding war crimes, every violation of the laws of war (including I'VE Commentary). Also, individuals have been prosecuted for such violations for the last 200 years.
    Regarding human rights, do you consider the CAT to criminalize some human rights violations, or provide criminal responsibility?

    Ka Lok Yip says

    February 24, 2016

    Dear Jordan

    Thank you. The practice of regarding every, not just ‘serious’, violation of LOAC as a war crime is mentioned in the ICRC Study on Customary IHL (commentary to rule 156):

    ‘There is also practice which does not contain the adjective “serious” with respect to violations and which defines war crimes as any violation of the laws or customs of war. The military manuals and legislation of a number of States similarly do not require violations of international humanitarian law to be serious in order to amount to war crimes. However, most of this practice illustrates such violations in the form of lists of war crimes, typically referring to acts such as theft, wanton destruction, murder and ill-treatment, which indicates that these States in fact limit war crimes to the more serious violations of international humanitarian law.’

    Rule 156 itself however clearly states ‘Serious violations of international humanitarian law constitute war crimes’.
    Limiting war crimes to only ‘serious’ violations of LOAC can be explained by their nature as ‘international’ (as opposed to municipal) crimes i.e. ‘such an act universally recognized as criminal, which is considered a grave matter of international concern and for some valid reason cannot be left within the exclusive jurisdiction of the state that would have control over it under ordinary circumstances’ (Hostages case, p. 1421). The commentary to rule 156 states that this limitation ‘does not exclude the possibility that a State may define under its national law other violations of international humanitarian law as war crimes. The consequences of so doing, however, remain internal and there is no internationalization of the obligation to repress those crimes and no universal jurisdiction.’ The same observation would apply to national legislation that criminalize other violations of LOAC without labelling them as war crimes (e.g. the ICRC Model Law Geneva Conventions (Consolidation) Act (art. 4) does not use the war crimes label).

    As to individual criminal responsibility, there are four categories of law that, in a very generic sense, all ‘provide’ for it but they are technically distinct:

    Category 1: Prescription of crime i.e. criminalisation - A law may prescribe that it is a crime to commit or omit certain acts – this is criminal law, whether domestic or international, whether conventional or customary.

    Category 2: Prescription of procedural obligation to criminalise behaviour - A rule of international law may prescribe an obligation for states to criminalise certain behaviour – both LOAC and IHRL contain such rules.

    Category 3: Prescription of substantive obligation to behave in certain ways - A rule of international law may prescribe an obligation to comply with certain rules of behaviour. Since the content of the obligation is the same as the content of the rules (e.g. the obligation to treat humanely persons not taking an active part in hostilities and to abstain from certain acts under CA3), non-compliance with these rules of behaviour by individuals coincides with the non-compliance with the treaty obligation on the relevant state party. While the former could trigger (domestic or international) criminal liability for the individuals if the non-compliance has been criminalised by criminal law and if the required mens rea is found, the latter will trigger civil liability for states. The Geneva Conventions operate in this way, while most general IHRL conventions do not directly prescribe specific rules of behaviour for individuals (only specific IHRL conventions that themselves criminalise specific conduct e.g. genocide or apartheid do so – some commentators therefore queried whether it is appropriate to characterise these as IHRL conventions as such rather than international criminal law conventions, see e.g. Provost, International Human Rights and Humanitarian Law, p. 68; the same applies to the customary international law that itself criminalises acts of torture, see Furundzjia, para 146).

    Category 4: Prescription of substantive obligation to give effect to certain interest - A rule of international law may prescribe an obligation to take measures, some of which involve criminalisation (e.g. art 4 CAT), to give effect (e.g. art 2(2) ICCPR; art 2 CAT) to certain interest (e.g. no one shall be subject to torture or inhumane treatment, art 7 ICCPR). Since the content of the obligation (i.e. to take measures) is different from the content of the interest (i.e. freedom from torture and ill treatment), a violation of the interest (which might or might not be criminalised because the acts/omissions constituting the violation might or might not be concrete enough to form the actus reus of a crime – see Limbuela for an example where institutional arrangements, rather than identifiable individuals’ acts/omissions, led to a finding of ill treatment in violation of art 3 ECHR) does not necessarily coincide with a violation of the obligation (which would attract civil liability to the relevant state party to the treaty). General IHRL conventions operate this way, the obligations under which can be satisfied by structural measures (legislation and due diligence in prevention and enforcement) despite the continued occurrence of individual criminal conduct that violates the interest while the absence of individual criminal conduct does not necessarily guarantee non-violation of the obligation (see Rodriguez v Honduras, para 175). On the contrary, under the Geneva Conventions, the occurrence of conduct criminalised pursuant to their penal sanctions necessarily also violates the Geneva Conventions themselves, regardless of the states’ due diligence in prevention and enforcement.

    The distinction between category 3 and 4 can be discerned in the drafting of the two types of laws:

    Art 146 GCIV, para 1 provides ‘The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article’. This envisages ‘breaches’ of GCIV itself can be committed by persons.

    Art 2(3)(a) ICCPR provides that ‘To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity’. This envisages only the ‘rights or freedoms’ recognised by ICCPR, rather than ICCPR itself, can be violated by persons.

    This distinction is key to understanding why the scope of the requirements of IHRL conventions is broader than that of LOAC conventions. To continue the use of CAT as an illustration:

    Art 2(1) CAT provides ‘[e]ach State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.’ (Category 4) While art 4(1) CAT provides ‘[e]ach State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.’ (Category 2)

    Common Article 3(1)(c) of the Geneva Conventions states that ‘[p]ersons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ' hors de combat ' by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons …outrages upon personal dignity, in particular humiliating and degrading treatment’. (Category 3) Art 146, para 1 of GCIV states that ‘[t]he High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article’ and art 147 GCIV states that ‘[g]rave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the present Convention … torture or inhuman treatment’. (Category 2)
    Neither sets of provisions ‘criminalise the acts of torture’ directly in the sense of themselves making it a crime to commit torture (so neither falls within category 1); rather, both of them impose procedural obligations on state parties to make the acts of torture a crime (both contain provisions falling within category 2). The crucial distinction between the two sets of provisions is that the substantive operative provision of CAT is itself addressed to states to take structural measures to prevent torture (including through criminalisation), but not addressed to individuals to abstain from torture; on the contrary, CA3 is such an operative provision addressed to individuals.

    CA3, by specifying that torture cannot be used in the treatment of protected persons in specific situations, is setting forth rules of behaviour such that the behaviour in breach of CA3 itself can be used in criminal law as the actus reus of a crime (either as ‘grave breaches’ in the form of ‘torture or inhuman treatment, including biological experiments’ stated in e.g. art 147 GCIV or some other ‘acts contrary to the provisions of’ LOAC stated in e.g. art 146 GCIV). Once such a person is tortured in such situations, CA3 is breached, the actus reus of a crime is committed and individuals who caused it could potentially be subject to criminal liability. The direct correlation between the content of LOAC conventions and the actus reus of crimes counsels interpreting the former as addressing individuals directly by requiring individuals’ compliance.

    On the contrary, art 2(1) CAT ‘obliges each State party to take actions that will reinforce the prohibition against torture’, which are wide-ranging and include criminalisation under art 4(1) CAT (Committee Against Torture General Comment no 2, para 2, 3 and 8). These obligations are crafted as such because ‘[t]he Convention imposes obligations on States parties and not on individuals’ (Committee Against Torture General Comment no 2, para 15). The fact that criminal acts of torture are inflicted by a non-state actor does not breach the CAT so long as the state parties perform all due diligence, prosecution and punishment (Committee Against Torture General Comment no 2, para 18). At the same time, mere criminalisation of acts of torture does not fully discharge the obligation under art 2(1) CAT (Committee Against Torture General Comment no 2, para 12-25). The incongruence between the content of IHRL conventions and the actus reus of crimes committed by individuals counsels interpreting the former as addressing collective entities (e.g. states) by requiring structural intervention.

    The difference in the addressees of the two types of law is a relevant factor in interpreting their relationship. As the ILC Fragmentation Report noted in para 120, ‘No rule, treaty, or custom, however special its subject-matter or limited the number of the States concerned by it, applies in a vacuum. Its normative environment includes … not only whatever general law there may be on that very topic, but also principles that determine the relevant legal subjects, their basic rights and duties, and the forms through which those rights and duties may be supplemented, modified or extinguished’.

    Jordan says

    February 24, 2016

    Ka Lok Yip: that's pretty detailed. What I wanted to note (but for the typo on my phone) was that IV Commentary Relative to the Protection of Civilian Persons in Time of War (ICRC 1958), at 583, notes "The Geneva Conventions [not just the "grave breach" provisions] form part of what are generally called the laws and customs of war, violations of which are commonly called 'war crimes.'" Accord, III Commentary (ICRC 1960) (noting the ILC definition: "'Acts in violation of the laws or customs of war'"); Oppenheim; U.S. Dep't of Army, Field Manual 27-10, Law of Land Warfare 178, para. 499 (1956) ("Every violation of the law of war is a war crime").