Human rights in times of armed conflict

1. Human rights in times of armed conflict

2. Table of content: • Important differences and similarities IHL/IHRL • Why is it important whether IHRL are applicable in AC? • Are IHRL applicable in AC? • How can IHL and IHRL interrelate? • Extraterritorial application of IHRL

3. I. Differences and similarities Common purpose: • To protect and ensure human dignity Differences IHL/IHRL: • Armed conflict/Peace • Military necessity/derogate in emergencies • Formulated as state obligations/Individual rights • Binds state and non-state actors/only SA • Many precise rules/Few broad rules

4. II. Why is it important whether IHRL are applicable in AC • Protect different persons • IHL protect enemy combatants and civiliaans • HR: Protect everyone, incl. own combatants - See e.g. UK, R (Smith) v The Secretary of State for Defence: District court, pr. 20: “The soldier does not lose all protection simply because he is in hostile territory carrying out dangerous operations. Thus, for example, to send a soldier out on patrol or, indeed, into battle with defective equipment could constitute a breach of Article 2 [EMRK].” House of Lords, 19 June 2013: HR is applicable also outside British camps – incl under patrol, etc.

5. ECHR – Pritchard v. UK -pending October 2012 In Mid-2003 Dewi Pritchard was called up to serve with the Royal Military Police in Iraq [as electronics engineer]. On 23 August 2003 he took part in an operation to transport AK47 rifles. Dewi Pritchard was driving a non-armoured Nissan pathfinder ahead of a Land Rover which was transporting the rifles when a red Chevrolet truck overtook the Land Rover and drew alongside the Nissan. A man in the back stood up and fired a long burst of automatic fire into the driver’s side window, killing three soldiers, including Dewi Pritchard. Full art. 2 investigation ?

6. 2. Different standards • Right to life: – absolutely necessary; proportionality, arrest if possible • Detention • Reasons for detention: must not be arbitrary • Supervision of detention: Habeas Corpus, • Right to assistance from a lawyer • Torture, inhumane treatment • Definition • Investigation of torture • Transfer of prisoners

7. 3. Investigation of possible war crimes HR: Independent, effective, impartial and fast investigation of arbitrary killings and torture, include close family of deceased • See e.g. UN Principles on the Effective Prevention and Investigation of Extrajudicial, Arbitrary and Summary Executions from 1989 • Goldstone report, Human Rights in Palestine and other Occupied Arab Territories: Report of United Nations Fact Finding Mission on the Gaza Conflict, 15/9 2009, pr 1601-1632. IHL: Official investigation/ dead internees /Art 131/GC IV; 121/GC III

8. 4. Compensation and redress to victims War crimes HR: Individual right to compensation and redress IHL: State can get compensation

9. 5. International monitoring/complaints bodies HR: • Individual complaints • Periodic rapports to HR bodies and HRC IHL: ICRC – confidential dialogue

10. Case -- Right to life • Danish troops driving on a road in Afghanistan - a bomb (IED) explodes • Danish troops hide and wait • Three civilian dressed afghans shown up – collect remnants of the bomb – talking in mobile phone with someone discussing the attack • Danish soldiers count to three – jump up – and shoot the three men Did the Danish soldiers violate IHL or HR?

11. III. Are HR applicable in times of armed conflict? • IHL not applicable in peace time • HR applicable in AC?: Traditionally: NO – two distinct set of rules; Development – Yes HR also applicable in AC: a) New HR convention applicable in peace time and AC • UN Conv. Rights of Child (1989) - art 38 HR obligation to respect IHL • UN OPCAT (2002) – military detention places – see art. 4 • UN Conv. Enforced disappearance (2006)

12. b) Other HR conventions • ICJ – Yes HR still applicable in AC • See e.g. the Israeli Wall Case • Human rights bodies: IACHR, ECHR, UN Human Rights committee, etc. • Expert-Commissions: - UN, Goldstein report, Israel/Hamas, 2009; - EU-report, Georgia/Russia, 2009. • States – HR continues to be applicable in AC: - UN HR Commission, Res. 15 April 2005 - IHL and HRL complementary and mutually reinforcing - UN SC, Res. 1894, 11/11-2009, Civilians in AC: ”Demands that parties to armed conflict comply strictly with the obligations applicable to them under international humanitarian law, human rights and refugee law..”

13. IV. How can IHL and HR interrelate? International Court of Justice/ICJ Relationship between IHL and HR – 3 Situations (“the Wall case”): • Certain rights exclusively matter of IHL • Others exclusively of HR,- and • Others matter of both these branches of international law IHL is lex specialis when more detailed and Precise – e.g. right to life, detention in IAC

14. HR courts European Court HR – simply applies ECHR: • see e.g. Al-Skeini and Al-Jedda 7/7 2011 - no reference to IHL • Inter-American Court HR – IHL Lex specialis in armed conflict: • See Third report on the human rights situation in Colombia, OEA/Ser.L/V/II.102 Doc. 9 rev. 1, 26. februar 1999, Chapter IV: ”[D]uring such situations of internal hostilities, the Commission has received from Colombia and other OAS member States numerous complaints alleging serious violations of the fundamental rights guaranteed in the American Convention and Declaration arising out of the conduct of military operations by State security forces and its other agents. In order to properly judge the specific claims raised in such petitions, the Commission has found it necessary at times either to directly apply rules of international humanitarian law, i.e. the law of armed conflict, or to inform its interpretations of relevant provisions of the American Convention by reference to these rules.”

15. Authors/Experts: Marco Sassoli: ”IHL lex specialis when situation regulated by both IHL and HR and IHL rules are more detailed and precise”

16. David Kretzmer: ”when we are talking about the battlefield ‘proper’ in the classic sense, there is no effective control and international humanitarian law rules prevail. As soon as we start removing ourselves from the battlefield, we are going to start having international humanitarian law supplemented by international human rights law.”

17. UN, HRC, Expert Consultation on Human Rights of Civilians in Armed Conflict, 2 June 2009, p. 10: • ”The more effective control over persons or territory, the more applicable human rights will become.”

18. Other experts: i.a. Michael J. Matheson and Hans-Joachim Heintze: ”[T]he rules developed for peacetime circumstances cannot be applied in an unqualified manner to the conduct of armed conflict. Rather, they must be integrated in a sensible way into the structure of the law of armed conflict…” • .

19. Governed by Human Rights Law (HRL) Internatio-nal Armed Conflict Occupati-on Non-int. Armed Conflict Internal Disturbance And Tensions Civilian Law Enforce- ment Governed by International Humanitarian Law (IHL) Grey Zone UN, HRC, Expert consultation, A/HRC/11/31, 2 June 2009: “Since the reciprocity approach would be hardly acceptable in the context of non- international armed conflicts, the better paradigm to apply was that of human rights law.”

20. Conclussions: • HR applicable under AC (occupation and NIAC) on a states own territory • Preamble AP II: "Recalling furthermore that international instruments relating to human rights offer a basic protection for the human person.” • HR bodies/ECHR : Applied HR in internal armed conflicts e.g. in Russia (Chechnya) and in Turkey • Relationship: Concrete assessment based on type of conflict, context and rule • What about conflict taken place outside a state’s own territory?

21. V. Extraterritorial application of HR Point of departure: “Jurisdiction” - HR applicable on a State’s own territory Two exceptions: Control over area on another State’s Territory: E.g. Norther Cypern see cases from ECHR. Depends on (Issa-case, 2005) : Number of soldiers The size of the controlled area The degree of control (control over roads, check points, etc.) How long time the state exercise control over the area 15/09/2014

22. B. Control and authority over persons • Embassies, consulates, airplanes, ships in another state or international waters, airspace • Abduction/Kidnapping from another state • Arrest and detention in another state (ECHR, Al-saadoon and Mufdhi v. UK, 30 June 2009) “88.  The Court considers that, given the total and exclusive de facto, and subsequently also de jure, control exercised by the United Kingdom authorities over the premises in question, the individuals detained there, including the applicants, were within the United Kingdom’s jurisdiction”

23. NB: AL-Skeini, ECHR, 7/7 2011 Maybe new additional exception C – ‘exercise of public power/authority”? - 5 Iraqis killed during patrol and at check-points in Iraq in 2003 when UK occupying power– (i.e. not control and authority over persons – see previous slide) Para 149: “United Kingdom (together with the United States) assumed in Iraq the exercise of some of the public powers normally to be exercised by a sovereign government. In particular, the United Kingdom assumed authority and responsibility for the maintenance of security in South East Iraq.” – therefore under UK jurisdiction

24. Extraterritorial killing not preceeded by arrest? E.g. is shooting, dropping bombs from an airplane enough to establish jurisdiction Under ECHR: Probably not (Bankovic-case, 2001; but see Pad-case, 2007) Under IACHR: Yes – see Brother to Rescue, 1999– Cuba shooting down two airplanes in int. airspace – under Cuba’s jurisdiction – American Convention on HR