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.