I n t e r a c ti o n b e t w e e n h u m a n i t a r i a n l a w a n d h u m a n r i g h t s i n a r m e d c o n fl i c t s

I . A p p l i c a b i l i t y o f i n t e r n a ti o n a l h u m a n r i g h t s l a w t o a r m e d c o n fl i c t s

The applicability of internati onal human rights law during armed confl icts – both internati onal and non-
internati onal - has been addressed by multi ple internati onal bodies including the Internati onal Court of Justi ce.

The Internati onal Court of Justi ce fi rst affi rmed the applicability of internati onal human rights law during armed
confl icts in its 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons:
“The Court observes that the protecti on of the Internati onal Covenant of Civil and Politi cal Rights does not cease
in ti mes of war, except by operati on of Arti cle 4 of the Covenant whereby certain provisions may be derogated
from in a ti me of nati onal emergency.” (§25)

In the 2004 Advisory Opinion on the Legal Consequences of the Constructi on of a Wall in the Occupied
Palesti nian Territory (the 2004 Wall Advisory Opinion), the Court confi rmed the applicability of internati onal
human rights law to situati ons of military occupati on (1). A year later, the Court delivered a binding judgment in
the case Democrati c Republic of the Congo v. Uganda where it applied internati onal human rights law to an
occupati on citi ng the fi ndings from its 2004 Wall Advisory Opinion.

“The Court fi rst recalls that it had occasion to address the issues of the relati onship between internati onal
humanitarian law and internati onal human rights law and of the applicability of internati onal human rights law
instruments outside nati onal territory in its Advisory Opinion of 9 July 2004 on the Legal Consequences of the
Constructi on of a Wall in the Occupied Palesti nian Territory…It thus concluded that both branches of
internati onal law, namely internati onal human rights law and internati onal humanitarian law, would have to be
taken into considerati on. The Court further concluded that internati onal human rights instruments are applicable
‘in respect of acts done by a State in the exercise of its jurisdicti on outside its own territory’, parti cularly in
occupied territories.” (2)
Other internati onal courts have applied the human rights treati es over which they have jurisdicti on to situati ons
of armed confl ict. The European Court of Human Rights (ECtR) has notably applied the European Conventi on on
Human Rights to the confl ict in the Russian Federati on (Isayeva, Yusupova and Bazayeva v. Russia) and to Turkish
occupati on of Northern Cyprus (Cyprus v. Turkey). The Inter-American Court on Human Rights has also applied
internati onal human rights law in a confl ict situati on:
“The Court considers that it has been proved that, at the ti me of the facts of this case, an internal confl ict was
taking place in Guatemala (supra 121 b). As has previously been stated (supra 143 and 174), instead of
exonerati ng the State from its obligati ons to respect and guarantee human rights, this fact obliged it to act in
accordance with such obligati ons.” (3)
The UN Human Rights Committ ee has recognised the applicability of the 1966 Covenant on Civil and Politi cal
Rights to both internati onal and non-internati onal armed confl icts (including situati ons of occupati on). The
Committ ee has dealt with this issue at the level of a General Comment (4) , and in its observati ons on States’
Periodic Reports (5).
In additi on to these applicati ons of internati onal human rights treaty law by internati onal bodies,
intergovernmental resoluti ons and nati onal case law support this approach. For example, UK courts took into
considerati on the European Conventi on of Human Rights during the Briti sh occupati on in Iraq (Al-Skeini and Al-
Jedda cases), and the Israeli High Court of Justi ce reviewed the legality of a military order dealing with detenti on
of Palesti nians in the Occupied Territories in light of the 1966 Covenant on Civil and Politi cal Rights (the Marab
case).

I I . E x t r a t e r r i t o r i a l a p p l i c a ti o n o f i n t e r n a ti o n a l h u m a n r i g h t s l a w

Armed confl icts oft en involve operati ons outside the territorial boundaries of a state. A preliminary questi on
concerning the territorial scope of applicati on of human rights law usually has to be addressed.
Today the scope of applicati on of human rights obligati ons is considered to be a questi on of eff ecti ve control and
not necessarily related to the state’s territory. This positi on was affi rmed by the Internati onal Court of Justi ce in
the Advisory Opinion in the Wall Advisory Opinion (2004) and in the case Democrati c Republic of the Congo v.
Uganda (2005).
The European Court of Human Rights also refers to the eff ecti ve control of a territory for the applicati on the
European Conventi on:

“Bearing in mind the object and purpose of the Conventi on, the responsibility of a Contracti ng Party may also
arise when as a consequence of military acti on, whether lawful or unlawful, it exercises eff ecti ve control of an
area outside its nati onal territory.” (6)

The Inter American Commission of Human Rights has taken the following positi on:

“In principle, the inquiry turns not on the presumed victi m's nati onality or presence within a parti cular
geographic area, but on whether, under the specifi c circumstances, the State observed the rights of a person
subject to its authority and control.” (7)
The UN Human Rights Committ ee stated that under the 1966 Covenant on Civil and Politi cal Rights the protecti on
is for “anyone within the power or eff ecti ve control of that State Party, even if not situated within the territory
of the State Party” (8). Nati onal courts have applied the eff ecti ve control standard as well (Al-Skeini and Al-Jedda
cases in the UK).
However, the exact meaning of the term “eff ecti ve control” is yet to be determined. For now, internati onal case
law and the views of UN treaty bodies, have clarifi ed a number of situati ons:
First, a range of situati ons have been recognised as amounti ng to eff ecti ve control , from ‘prolonged’
occupati ons, such as the 30-year Turkish occupati on in Northern Cyprus (the Loizidou case, ECtHR) or the Israeli
occupati on of the Palesti nian territories (the 2004 Wall Advisory Opinion, ICJ), down to situati ons which have
lasted only a short ti me, as in the case of Ilascu v. Moldova. In this case the ECHR found Russia to be responsible
for human rights violati ons, although Russia had only a few troops present on the territory of Moldova. It
appears that this situati on would not amount to an occupati on under internati onal humanitarian law (IHL) as
defi ned in Arti cle 42 of the 1907 Hague Conventi on, but it was found to consti tute eff ecti ve control for the
applicati on of extraterritorial human rights obligati ons. (9)
Second, eff ecti ve control can be exercised over persons, even if this control is only temporary. This covers
places of detenti on or situati ons in which state agents arrest persons abroad (e.g. the Ocalan case, ECtHR; and
the Lopez Burgus case, Human Rights Committ ee). (10)
In the Bankovic case, the ECtHR found that NATO’s aerial bombing of Belgrade did not amount to eff ecti ve
control, thereby creati ng a disti ncti on between ground operati ons (that can exercise eff ecti ve control) and air
power (which the Court found did not amount to eff ecti ve control in this case).
In the Al-Skeini case the UK House of Lords disti nguished situati ons of conduct of hosti liti es during occupati on
from “calm occupati on”. Accordingly, if hosti liti es break out in occupied territories, these territories are not
always under eff ecti ve control as this Court required for the extraterritorial applicability of Human Rights
obligati ons.
The US and Israel, in parti cular, have raised objecti ons to the applicati on of internati onal human rights law in
occupied territories or during armed confl icts. (11)

I I I . T h e r e l a ti o n s h i p b e t w e e n i n t e r n a ti o n a l h u m a n i t a r i a n l a w a n d i n t e r n a ti o n a l h u m a n r i g h t s l a w

While it is generally agreed that internati onal human rights law and internati onal humanitarian law both apply in
situati ons of armed confl ict, their relati onship remains quite complex. Various approaches have been taken by
internati onal bodies.

A. The lex specialis approach

The Internati onal Court of Justi ce has identi fi ed three situati ons concerning the interacti on between
internati onal humanitarian law and internati onal human rights law:

“As regards the relati onship between internati onal humanitarian law and human rights law, there are thus three
possible soluti ons: some rights may be exclusively matt ers of internati onal humanitarian law; others may be
exclusively matt ers of human rights law; yet others may be matt ers of both these branches of internati onal law.
In order to answer the questi on put to it, the Court will have to take into considerati on both these branches of
internati onal law, namely human rights law and, as lex specialis, internati onal humanitarian law.” (12)
Accordingly, contradictory provisions should be regulated according to the principle of lex specialis. As
internati onal humanitarian law was specially designed to be applied in armed confl icts it represents the specifi c
law that should prevail over certain other general rules.

The Inter American Commission of Human Rights in the Coard case followed this approach (13), as did the
Internati onal Commission of Inquiry on Darfur presided by Professor Antonio Cassese:
“Two main bodies of law apply to the Sudan in the confl ict in Darfur: internati onal human rights law and
internati onal humanitarian law. The two are complementary. For example, they both aim to protect human life
and dignity, prohibit discriminati on on various grounds, and protect against torture or other cruel, inhuman and
degrading treatment. They both seek to guarantee safeguards for persons subject to criminal justi ce proceedings,
and to ensure basic rights including those related to health, food and housing. They both include provisions for
the protecti on of women and vulnerable groups, such as children and displaced persons. The diff erence lies in
that whilst human rights law protects the individual at all ti mes, internati onal humanitarian law is the lex
specialis which applies only in situati ons of armed confl ict.” (14)

B. The Complementary and Harmonious approach

The Human Rights Committ ee stated that

“the Covenant applies also in situati ons of armed confl ict to which the rules of internati onal humanitarian law
are applicable. While, in respect of certain Covenant rights, more specifi c rules of internati onal humanitarian law
may be specially relevant for the purposes of the interpretati on of Covenant rights, both spheres of law are
complementary, not mutually exclusive.” (15)

The Human Rights Committ ee does not use the term lex specialis but refers to the more specifi c norms of
internati onal humanitarian law. By avoiding the lex specialis approach the Human Rights Committ ee seems to
indicate that there is no need to choose one branch of law over the other, but rather to look for their
simultaneous and harmonizing applicati on.

According to this approach, as internati onal human rights law and internati onal humanitarian law are two
branches of law that have a common objecti ve of protecti ng persons, they should be harmonised and interpreted
in a way that they complement and reinforce each other. In some cases, internati onal humanitarian law will
specify the extant rules and their interpretati on, and in other cases it will be internati onal human rights law,
depending on which branch of law is more detailed and adapted to the situati on.

C. Towards an interpreti ve approach?

The approach proposed by Professor Marco Sassòli seems to off er an alternati ve approach to the lex specialis and
the complementarity approaches menti oned above (16). According to Sassòli, the relati onship between human
rights law and humanitarian law

“must be solved by reference to the principle ‘ lex specialis derogat legi general ‘… The reasons for preferring the
more special rule are that the special rule is closer to the parti cular subject matt er and takes bett er account of
the uniqueness of the context”.
However, Sassòli points out that using the lex specialis paradigm does not necessarily result in humanitarian law
prevailing over human rights law.

“The principle does not indicate an inherent quality in one branch of law, such as humanitarian law, or of one of
its rules. Rather, it determines which rule prevails over another in a parti cular situati on.”

Thus, each situati on need to be analyzed individually in order to determine which rule would apply: it could be an
internati onal humanitarian law rule or a human rights rule, depending which rule is more detailed and adapted to
the situati on. Aft er determining that the lex specialis rule applies, Sassòli emphasises that the other branch of
law, the lex generalis
“sti ll remains in the background. It must be taken into account when interpreti ng the lex specialis; to the extent
possible, an interpretati on of the lex specialis that creates a confl ict with the lex generalis must be avoided, and,
instead, an att empt to harmonize the two norms made.”
Thus, for example, with regard to the rules of fair trial, as internati onal humanitarian law may provide a higher
threshold of protecti on with a set of rights which are non-derogable, it may regulate the applicable legal
standards. On the other hand, for the internati onal standards of detenti on one should look at the human rights
rules, which may be more up to date and elaborated. Also with regard to the prohibiti on on torture, it is
internati onal human rights law that provides the relevant defi niti on of torture. The right to life is another
example, although a more complex one, of a possible use of the interpreti ve approach. In this situati on the
internati onal humanitarian rules on disti ncti on between military and civilian objecti ves may clarify the concept of
arbitrary killing under human rights conventi ons during confl icts.
For questi ons or further discussion, contact Sharon Weill at rulac@adh-geneva.ch
Notes

(1) Internati onal Court of Justi ce, Legal Consequences of the Constructi on of a Wall in the Occupied Palesti nian
Territory, Advisory Opinion, 2004, ICJ Reports (9 July 2004), at § 106-113.

(2) Internati onal Court of Justi ce, Armed acti viti es on the territory of the Congo (Democrati c Republic of the
Congo v. Uganda), ICJ Reports (19 December 2005), at § 216.

(3) Inter American Court of Human Rights, Bamaca Velásquez v. Guatemala, Judgment (25 November 2000), at §
207.

(4) UN Human Rights Committ ee, General Comment No. 31, CCPR/C/21/Rev.1/Add.13 (26 May 2004), at § 11.

(5) Concluding observati ons of the Human Rights Committ ee: "The State party should in parti cular (a)
acknowledge the applicability of the Covenant with respect to individuals under its jurisdicti on but outside its
territory, as well as its applicability in ti me of war" – United States, UN Doc. CCPR/C/USA/CO/3 (2006), at § 10.
“The State party should take all necessary steps to strengthen its capacity to protect civilians in the zones of
armed confl ict, especially women and children"- Democrati c Republic of Congo, UN Doc. CCPR/C/COD/CO/3
(2006), at § 13. See also Israel, UN Doc. CCPR/CO/78/ISR (2003), Sri Lanka, UN Doc. CCPR/CO/79/LKA (2003),
Colombia, UN Doc. CCPR/CO/80/COL (2004).

(6) European Court of Human Rights, Loizidou v. Turkey, Applicati on no. 15318/89, (18 December 1996), at § 62.

(7)Inter-American Commission on Human Rights, Coard v. the United States of America, Case 10.951 (1999), at §
37.

(8) General Comment 31, Nature of the General Legal Obligati on on States Parti es to the Covenant, UN Doc.
CCPR/C/21/Rev.1/Add.13 (2004), at § 10.

(9)Cordula Droege, “The Interplay between IHL and HR in situati ons of armed confl ict”, Israel Law Review,
(2), 2007, 310-355, at p. 331.

(10) Obviously, however, if the control is of a temporary nature the scope of the relevant human rights
obligati ons that are applied will be narrower.

(11) “Israel has consistently maintained that the Covenant does not apply to areas that are not subject to its
sovereign territory and jurisdicti on. This positi on is based on the well-established disti ncti on between human
rights and humanitarian law under internati onal law.” State Periodic Report: Israel, CCPR/C/ISR/2001/2 (2002), at
§ 8.

"The United States takes this opportunity to reaffi rm its long-standing positi on that the Covenant does not apply
extraterritorially. States Parti es are required to ensure the rights in the Covenant only to individuals who are (1)
within the territory of a State Party and (2) subject to that State Party’s jurisdicti on…The United States is
engaged in an armed confl ict with al Qaida, the Taliban, and their supporters. As part of this confl ict, the United
States captures and detains enemy combatants, and is enti tled under the law of war to hold them unti l the end of
hosti liti es. The law of war, and not the Covenant, is the applicable legal framework governing these detenti ons".
USA, Follow-Up Response to the Human Rights Committ ee by State Party, UN Doc.
CCPR/C/USA/CO/3/Rev.1/Add.1 (2008), pp. 2, 3.

(12) The 2004 Wall Advisory Opinion, at § 106.

(13) “[I]n a situati on of armed confl ict, the test for assessing the observance of a parti cular right, such as the
right to liberty, may, under given circumstances, be disti nct from that applicable in a ti me of peace. For that
reason, the standard to be applied must be deduced by reference to the applicable lex specialis.” (Corad v. USA,
at § 42)

(14) Report of the Internati onal Commission of Inquiry on Darfur to the United Nati ons Secretary-General
January 2005), at § 143

(15) UN Human Rights Committ ee, General Comment No. 31, CCPR/C/21/Rev.1/Add.13
(26 May 2004), at § 11.

(16) Marco Sassòli and Laura Loson, “The legal relati onship between internati onal humanitarian law and human
rights law where it matt ers: admissible killing and internment of fi ghters in non internati onal armed confl ict” (to
be published in the Internati onal Review of the Red Cross, Vol. 870, September 2008). See also: Sassòli, Marco,
“Le DIH, une lex specialis par rapport aux droit humains?”, in AUER, FLÜCKIGER, HOTTELIER (éds.), Les droits de
l'homme et la consti tuti on, Etudes en l'honneur du Professeur Giorgio Malinverni, Schulthess, Genève, 2007, pp.
375-395.
Selected bibliography

Droege, Cordula, “The Interplay between Internati onal Humanitarian Law and Internati onal Human Rights Law in
Situati ons of Armed Confl ict”, Israel Law Review, Vol. 40, No. 2 (2007), p. 310.

Doswald-Beck, Louise, “The right to life in armed confl ict: does internati onal humanitarian law provide all the
answers?”, 864 Internati onal Review of the Red Cross , 2006.

Hampson, F. and Salama, I., “Working paper on the relati onship between human rights law and internati onal
humanitarian law”, UN Sub-Commission on the Promoti on and Protecti on of Human Rights,
E/CN.4/Sub.2/2005/14 (21 June 2005).

Hans-Joachim Heintze, “On the relati onship between human rights law protecti on and internati onal humanitarian
law”, 856 Internati onal Review of the Red Cross , 2004, p. 789.

Lubell, Noam, “Challenges in Applying Human Rights Law to Armed Confl ict”, 860 Internati onal Review of the Red
Cross, 2005.

Sassoli, Marco, “Le DIH, une lex specialis par rapport aux droit humains?”, in AUER, FLÜCKIGER, HOTTELIER (éds.),
Les droits de l'homme et la consti tuti on, Etudes en l'honneur du Professeur Giorgio Malinverni, Schulthess,
Genève, 2007, pp. 375-395.

Sassòli, M., and Olson, L.M., “The legal relati onship between internati onal humanitarian law and human rights
law where it matt ers: admissible killing and internment of fi ghters in non-internati onal armed confl ict”, 871
Internati onal Review of the Red Cross 90, 2008, pp. 599-627.