Transnational Dialogue on International Law and Armed Conflict: Ken Watkin on the Overlap between IHL and IHRL

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BOG_Ken WatkinThe latest post in the joint blog series on International Law and Armed Conflict was posted yesterday on Intercross (the blog of the ICRC). The post is by Brigadier Gen (Rtd) Ken Watkin QC, former Judge Advocate General (i.e the head legal adviser) in the Canadian Armed Forces and former Stockton Professor of International Law at the United States Naval War College. Ken’s post is on the overlap between international humanitarian law and international human rights law. He starts by saying that:

It is possible to address the perennial debate about the relationship between international humanitarian law (IHL) and international human rights law (IHRL) from a number of perspectives. In these posts, I would like to set out some of the issues that deserve close attention. First, there is the strategic theoretical conflict that continues to play out between the advocates of exclusionary applications of IHL and IHRL. This is a conflict that is firmly grounded in different views emanating from each side of the Atlantic. Secondly, there are the different perspectives brought to this issue based on the unique North American (in this context the United States and Canada) and European legal systems, as well as differing geographic and experiential factors. Thirdly, there is the ongoing reliance on customary international law, domestic law and policy to assist in resolving what appears on its surface to be an intractable theoretical impasse. Finally, notwithstanding the exclusionary debate the reality is that military forces are applying both IHL and IHRL norms during contemporary operations, although approaches that seek to uniquely apply one legal framework over the other will continue present operational challenges.

The requirement to consider human rights during contemporary military operations arises in a number of ways. Often it occurs in the context of the use of force, particularly when military forces interface with civilians who are not direct participants in hostilities. Operations can involve the detention of insurgents, terrorists, and persons providing indirect support to organized armed groups; the quelling of civil disorder and unrest; and the arrest of members of criminal organizations taking advantage of the general disorder often associated with armed conflict. These situations can arise during inter-State conflict (i.e. occupation), as well as comprise a significant component of counterinsurgency and counterterrorism operations. 

The full post is available on Intercross here

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Jordan says

September 6, 2014

Article 103 of the UN Charter mandates that human rights obligations of member states under Articles 55(c) and 56 to not violate (to respect and to observe) customary human rights will prevail over any inconsistent obligations of member states under any ordinary international agreement (i.e., one that does not create an obligation jus cogens [and jus cogens obligations will prevail in any event, e.g., the prohibition of torture and cruel or inhumane treatment of any detainee [which, of course, mirrors CIL obligations under the laws of war such as those reflected in common article 3]). And U.N. obligations noted above are "universal" and without any limitation in terms of social context (such as armed conflict or fighting "terrrorists").
The conduct addressed here in the xtract from Ken's post also raises questions about who is protected under the ICCPR even though the ICCPR is otherwise universal in general in its reach. For example, outside of U.S. territory, territory that the U.S. occupies, and the equivalent of U.S. territory under intrernational law (e.g., a U.S. naval vessel), those protected under the ICCPR are those who are within the actual "power or effective control" of the U.S. (e.g., a detainee). Such a person will have the human right to freedom from "arbitrary" deprivation of liberty, but permissible detention under the laws of war will not be "arbitrary." The two legal paradigms co-exist, but there is no actual conflict regarding customay human rights protected through the U.N. Charter and human rights protected under the ICCPR (some of which are also customary) and what is permissible under the laws of war, especially regarding human rights that have significant "limitations" (e.g., re: speech and association) and those limited by the word "arbitrary" (like articles 6, 9, and 17).

Jordan says

September 7, 2014

p.s. concerning the lack of a legal basis for lex specialis in treaty law or customary international law (in addition to the points above regarding the primacy of customary human rights obligations under the U.N. Charter and any human rights that are jus cogens) and obligatioss of U.N. entities and members of national military forces serving under a U.N. command, see, e.g.,
Concerning nine false claims of the Bush/Cheney Admin., especially regarding h.r. during war and extraterritorial h.r., see 1989099
Concerning the operationalizing of the international law of self-defense targetings and why the human right to freedom from arbitrary deprivation of life does not inhibit lawful targetings, see, e.g., http://2459649 9early draft that has been expanded)