The Application of Human Rights Treaties in Wartime

The Application of Human Rights Treaties in Wartime

This year the EJIL has been marking the 60^th anniversary of the Universal Declaration of Human Rights by publishing a series of articles on international human rights law. The international human rights movement was birthed in response to the atrocities during the second World War. It is therefore appropriate to examine the extent to which international human rights law, and international human rights treaties in particular, apply in time of armed conflict.

There are a number of key, overlapping, questions which need to be answered in considering the application of international human rights treaties in time of armed conflict.

• What are the advantages of relying on human rights treaties in the context of armed conflicts?
• Do human rights treaty obligations continue to apply in time of armed conflict?
• To what extent do human rights treaties apply extraterritorially?
• If human rights treaties apply, what is their relationship with international humanitarian law?

I discuss the first two questions below and will discuss the last two in a further post

i What are Advantages of Relying on Human Rights Treaties?

The reason that many seek reliance on human rights treaties in armed conflict is that provides for additional substantive rights and it that body of law will sometimes impose additional substantive obligations when compared with international humanitarian law (IHL). For example, the right to life under human rights law will usually require that law enforcement agents do not use lethal force if there is some other means of disabling the threat without much risk to the law enforcement agents (see  the McCann v UK case (ECHR) cited in Targetted Killings decision of Israeli Supreme Court). However, IHL does not require this with regard to combatants or with regard to civilians taking a direct part in hostilities. Similarly, the provisions of the International Covenant on Civil and Political Rights (ICCPR) which Israel was found to be in breach of in the Wall Advisory Opinion are not mirrored in IHL. For example, the provisions of Art. 12 freedom of movement, and those aspects of Art. 17 providing freedom of interference with the home and correspondence  arguably go beyond what Art. 27 of the 4th Geneva Convention on the Protection of Civilians provides for ( when it protects respect for family rights). However, how one interprets the human rights will depend on how one answers the fourth question (above) about the relationship with IHL.

Perhaps the main advantage to be derived from reliance on human rights law and treaties is that that body of law will often confer additional procedural rights. Human rights law provides individuals with access to international/regional judicial and quasi-judicial bodies for the purpose of making claims relating to conduct of belligerents. There is no general mechanism under IHL which provides for this, though on occasion, States may create a body such as the Eritrea-Ethiopia Claims Commission which may entertain claims by individuals.  Also, because many national legal systems internalise norms of international human rights law, reliance on human rights opens up the possibility of utilising national courts with respect to matters occurring in armed conflict. The recent Georgia v. Russia in the International Court of Justice, which was brought under the Convention on the Elimination of Racial Discrimination, and the two Genocide Convention Cases (Bosnia v. Serbia and Croatia v. Serbia) also shows that states may gain additional procedural and jurisdictional advantages by relying on human rights treaties rather than IHL.

ii. Do Human Rights Treaties Apply in Armed Conflict?

There are some who would perhaps have argued in the past that the human rights law is part of the law of peace and therefore that body of law ought not to apply in war where the conduct of the participants is governed by the laws of war. The argument is based, in part, on the supposition that the rights conferred by human rights law can only be guaranteed in stable times. However, the argument has never found favour with any international tribunal and falls flat in the face of the derogations provisions of many human rights treaties. Since these provisions state that States may derogate from the treaty in time of public emergency (including armed conflict), the assumption is that the treaty applies unless the State chooses to derogate. Also, there are the non-derogable provisions and furthermore derogations are themselves limited by certain principles. All of this suggests that there is no general principle that human rights treaties do not apply in time of armed conflict. Furthermore, most States accept that their human rights obligations continue (absent derogations) in time of armed conflict.