Joint Series on International Law and Armed Conflict: Querying the Roles for Human Rights Bodies in the Interplay between International Human Rights Law and International Humanitarian Law

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As noted earlier this week, EJIL:Talk! together with Lawfare and InterCross are running a joint series over the next few weeks on International Law and Armed Conflict. The latest post in the series, over at Lawfare, is by Joanna Harrington, (Professor of Law at the University of Alberta). She begins her post by noting that:MG0146cropped

“Complexities remain with respect to the interaction between the fields of international human rights law (IHRL) and international humanitarian law (IHL) in situations of armed conflict. Focusing on the human rights side of this interplay, there are questions about which human rights obligations apply, to what extent, and to whom, as well as questions about the role for international human rights monitoring bodies. Should the human rights bodies, for example, see their role as one of shaping the contours of IHL?

The words “human rights body” can easily be misread as if to treat all human rights bodies as being the same, with the same functions, and with the same effect or influence by virtue of being a “human rights body”. Included within this term are courts and commissions, committees and working groups, but from a Canada/U.S. perspective, there is interest in those human rights bodies that are not courts, since both countries cannot be subject to the European Court system, and nor have they accepted the jurisdiction of the Inter-American Court of Human Rights.

The Question of an Accountability Gap

Often these discussions begin by identifying a perceived accountability gap, drawing attention to the lack of an international adjudicative body to provide authoritative interpretations of the Geneva Conventions and Protocols. Having identified a gap, it is assumed that the gap must be filled. But there are times in international negotiations when gaps serve a purpose, perhaps when efforts to achieve agreement on a particular aspect or mechanism have failed.”

Read more at Lawfare

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Jordan says

September 11, 2015

Parts of the discussion of the authority of the HRC under the ICCPR seem a bit rigid in view of Article 46 of the ICCPR and Article 31(3)(c). Article 46 requires that "[n]othing in the present Covenant shall be interpreted as impairing the provisions of the Charter of the United Nations...," etc. Therefore, the ICCPR's provisions have to be interpreted consistently with the provisions of the Charter, which would include Articles 1(2) and (3), 55, and 56. Certainly customary human rights are obligatory on members of the U.N. through Articles 55(c), 56 and there is an Article 103 override if Article 46 of the ICCPR is not of the same effect. Certainly, therefore, the HRC must interpret rights under the ICCPR consistently with customary human rights guaranteed under provisions of the U.N. Charter.
More generally, the Vienna Convention allows interpretation of rights under the ICCPR consistently with "any relevant rules of international law applicable between the parties."
Further, human rights and laws of war have been used in various bodies as interpretative aids. And, of course, human rights apply during war (esp. those under the ICCPR) some human rights (including some under the ICCPR) prevail over laws of war. See, e.g., -- Human Rights on the Battlefield.

Jordan says

September 11, 2015

p.s. that's 31(3)(c) of the Vienna Convention on the Law of Treaties