Practitioners’ Guide to Human Rights Law in Armed Conflict

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The questions whether, when and how international human rights law applies to the activities of armed forces during armed conflict have been the subject of much discussion and litigation in the past couple of decades. It is now clear “that the protection offered by human rights conventions does not cease in case of armed conflict . . .” (International Court of Justice, Advisory Opinion on the Israeli Wall in Palestine (2004), para. 106).

However, what has been less clear is when those protections apply, especially when the state concerned is acting outside its territory, and how human rights law is to be applied in armed conflict. With regard to the latter question, one of the key issues is the relationship between human rights law, as it applies in conflict, and international humanitarian law as the law specifically designed for application in conflict. In the literature, and even in the case law, most attention has focussed on the when question (the question of applicability of human rights law) rather than the how question (the method and mode of application of human rights law). However, given that it is undoubtedly the case that there are circumstances when human rights law applies in armed conflict, even extraterritorially, the focus on the former set of questions, has led to an unfortunate lack of guidance as to how to apply (and to think about the application) of human rights law in situations of conflict.

Towards the end of last year, Oxford University Press published the Practitioners’ Guide to Human Rights in Law Armed Conflict (Murray, Akande, Garraway, Hampson, Lubell & Wilmhurst), a book that arises out of a project carried out by Chatham House under the leadership of Elizabeth Wilmhurst. The aim of this book is to provide guidance not only on when human rights law applies in situations of conflict, but, more importantly, on how it is to be applied.  As the Introduction to the book sets out, “The book is concerned primarily with giving guidance to the armed forces for the conduct and preparation of military operations.” (p. 2) However, it should be of assistance to all those who have to think about the application of human rights law in conflict – government officials, lawyers appearing before courts, members of non-governmental organizations and judges.

The book is divided into two parts. The first part (Chapters 1-4) provides an overview of human rights law, when it applies extraterritorially (ch. 3) and its relationship to the law of armed conflict (ch. 4). The second part (Chapters 5-17) provides detailed guidance on how human rights law applies to a range of issues that arise in armed conflict, eg the conduct of hostilities and targeting (ch. 5); weapons (ch. 7); prisoners of war and internment (ch. 8); occupation (ch. 10); and cyber operations (ch. 15).

The key chapters in Part 1 are chapters 3 and 4. As set out in the book’s introduction:

“Chapter 3  . . . explains the approach taken in the book on the important question of the extra-territorial reach of international human rights law. It considers the circumstances in which an individual who is outside the territory of the State will be found to be within its jurisdiction such as to create human rights obligations for the State with respect to that person. The chapter sets out the different categories of extra-territorial jurisdiction that have been found by international and national courts applying human rights law, distinguishing between the those cases where the State has human rights obligations because of its control of a territory on the one hand and, on the other, cases where State agents exercise authority and control over an individual such as to bring the person within the jurisdiction of the State. As with other chapters, Chapter 3 seeks to identify trends in case law and to apply how the underlying rationale for those trends is likely to be applied in future. It emphasises that a finding that human rights law applies extraterritorially does not mean that all of the State’s human rights treaty obligations apply with respect to a particular situation. With the exception of operations within a State’s own territory and situations of occupation, human rights obligations can be ‘divided and tailored’ such that only those human rights obligations relevant to the situation are applicable.

Chapter 4 is key to the understanding of the rest of the book, concerning as it does the relationship between international human rights law and the law of armed conflict. It does not address the huge amount of academic debate about the relationship between these two bodies of law, but identifies key trends in the international case law leading to conclusions relevant to interpreting one body of law in the light of the other, to overcoming conflicting obligations in the two bodies of law and determining how to accommodate them or to give one body of law priority. For the purpose of the specific guidance given in the second part of the book a distinction is made in Chapter 4 . . . between what are termed ‘active hostilities’ and what are termed ‘security operations’. These terms are used whether the armed conflict in question is international or non-international, or a situation of occupation. Once an armed conflict exists, the ‘active hostilities’ framework and the ‘security operations’ framework are used to determine how the law of armed conflict and international human rights law are to be applied in the most appropriate manner, in light of the situation. As chapter 4 explains, the ‘active hostilities’ framework regulates situations in which it can be seen, on the basis of the international human rights decisions, that the law of armed conflict provides the primary legal framework. In so-called ‘security operations’ international human rights law provides the primary framework.

It may be that not every reader of this book will agree with all of the propositions contained in the introductory chapters described above. We nevertheless hope that the reader will persevere to the second part, to see that the approach in Part I can indeed be applied to specific issues of armed conflict in a practical and workable manner. The second part of the book provides practical guidance to the armed forces on the application of international human rights law, taken as appropriate with the law of armed conflict. Chapters 5 to 16 aim to provide practical guidance for the military lawyer, the judge and the practitioner on whether to give one body of law rather than the other the primary role in relation to a number of different topics. For this purpose, the book uses the frameworks of ‘active hostilities’ and ‘security operations’ which are explained above.”

It is worth saying something about the nature of the book because the process by which it was written is unsual, though that may well be one of its main strengths. The book is very much a collaborative product with contributions by a number of people. However, it is not an edited volume, with particular individuals responsible for particular chapters. Although each draft was initially prepared by one person, everyone had input into all the chapters. Again the Introduction says it best:

“The project on which the book is based evolved through a process of discussion among a group of lawyers and practitioners meeting at Chatham House. The draft chapters in Part II were written by Daragh Murray, while Charles Garraway prepared the first draft of chapter 1, and Francoise Hampson did the same in relation to chapter 4. All chapters were then subject to scrutiny and discussion by all of the editors of the book. This was therefore a collegiate exercise. It is often in the nature of such exercises that not every member of the group will agree with every word that is written; this is the case here, particularly in relation to the introductory chapters in the first part of the book. The group was joined from time to time, in relation to the second part of the book, by a representative of government lawyers. No view expressed in this book can be attributed in any way to them. Thanks are due to Ian Park, Visiting Fellow, Harvard Law School, who provided first drafts of two chapters and to Hester Waddams, doctoral researcher, Essex University School of Law, for her careful work on various chapters.”

Finally, Chatham House is hosting a launch of the book this Wednesday at 5.30pm. We hope that many of you will be able to make it.


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Jordan J Paust says

January 15, 2017

Yet, regarding chapter four, one certainly cannot agree that the laws of war as such are "primary" during armed conflicts of any sort as opposed to human rights jus cogens or human rights obligations under articles 55(c), 56, and 103 of the United Nations Charter, see (Huma Rights on the Battelfield).