Is Human Rights Law of Any Relevance to Military Operations in Afghanistan?

XIX

I

s

Hum

a

n Right

s

La

w

o

f A

n

y

Relevanc

e

to

Milita

ry

Operation

s

in Mghani

s

tan?

Fran~oise

J.

Ha

mp

so

n

*

1.

Intr

o

d

uc

t

ion

N

ewspaper

reports in

Western

Europe

and the

publ

ications of

r

eputab

l

e

hu-man rights

gro

ups, such

as Human Rights Watch

and Amnesty

Interna-tio

nal

, give

th

e

impression that innoce

n

t

villagers are

being indiscriminately killed

by

coalition

forces in Afghanistan.

l

_News

_{reports also}

_suggest

_th

_{at Afghans}

com-plain of the lack

of

physical

security and of very s

l

ow

progress in the development

of

physical

and soc

ial infrastructure

.

The issue is not, in thi

s con

text,

whether such

clai

m

s are well

founded. The perception of the

Afghans

and

o

f the human rights

gr

oups is that civilians

are being

killed unnecessarily

and, by

implication,

unlaw-fully. T

h

e

forces involved

claim

to

be showing the

most rigorous

adherence

to the

req

uir

ements

of

the

law of armed

conflict.

2

_{Part of}

_{the explanation for}

_{the gap in}

perceptions may

be that

the

Afghans an

d

the human rights

groups

are

thinking

in

te

rm

s

of respect for human rights l

aw,

in the

context o

f

a

law and order paradigm,

whereas

the mili

tary forces are

thinkin

g excl

u

sively

in terms

of

the la

w of ar

m

ed

conflict.

This raises

th

e

qu

es

tion

of

the relevance

of

human rights law to the

con-duct of military

operations

in

Afgha

ni

sta

n

,

the

subject of

this article

.

Before embarking o

n

an analysis of

the principal questions

a

t i

ssue,

it is

neces-sary

to

m

ake

a numb

er of

preliminary points. The first is that it

will be assumed

that

two,

legally

significantly

different ope

rations

are

being conducted

in

Afg

hani

stan .

.. Professor, Department of Law & Human Rights Centre, University of Essex, UK.

International Law Studies - Volume 85

The War in Afghanistan: A Legal Analysis

Michael N. Schmitt (Editor)

Is Human Rights Law of Any

Relevance to Military

Operations in Afghanistan?

One is the International

Security Assistance

Force (lSAF)

operation, which

has

a

Security Council

mandate

and

is

there

to

assist

th

e

governme

n

t

of Afghanistan}

It

is

said

to be dealing with

an

insurgency

,

led by the

Taliban, and

to be governed by

the r

ul

es applicable

i

n

non-internationa

l

armed

conflict. T

h

e second

is

O

p

eration

Enduring Freedom

,

which

is

said

to be

a co

n

tinuation

of the

co

nfli

ct

which

started

in 200 1 between

an

ad hoc

coalition, working with

the

Northe

rn Alliance, and the

Taliba

n

and

Al Qaeda forces. This

conflic

t is

sai

d to

be

international in nature. This

characterizat

i

on of the conflic

t

(s)

is n

ot without controversy

but will not be

further

explored

here.

The seco

nd preliminary point

concerns

the nature of human rights law. Lawyers

with certai

n

armed forces

shy away

from anything to do

with

human rights law

and, by

extension, with

human rights more generally,

perhaps at

l

east

in part

owing

to fear of the

unknown.

4

_They

_claim

_{that it ha}

_s

_nothin

_g

_{to do}

_wit

_{h them and their}

ope

ration

s, a claim

that, in

such

broad

terms,

is pat

ently

un

true.

This

article cannot

hope to provide

a general

in

troductio

n to human rights law;

fo

r that, readers need

to seek elsewhere.

S It

is

,

nevertheless, necessary

to

highlight

certain

features

of

thi

s

body

of

rules. First, there is

a

difference between

human right

s

law and human

rights. The

former

refer

s

to legal

ob

lig

ations

of

States.

The focus will be prin

cipally

on

treaty la

w, which

is of

course subject

to

ra

ti

fication.

The main

e

mpha

sis

will

be

on the

international

treaties,

notably th

e

International

Cove

nant on

Civil

and

Po-litical Rights

,

with

only

occasional reference to

the

regional treaties.

It

shou

ld not

be forgotten, however, that there

are

human

right

s

mechanisms that, ultimately,

owe their existence to the

UN Charter.

6

_All

_Sta

_t

_es

_are

_subjec

_{t to their}

_{scrutiny. The}

norm

s, respect

for

which

they monitor,

are eithe

r part of

customary

human rights

law

or part of

Charte

r

l

aw

. Human rights more

ge

n

erally

refers to

values

and

pre-ce

pt

s

that may

(

or

should)

be the basis

of

policy decisions,

such

as the rule

o

fla

w,

democracy,

parti

cipation,

transparency and accountability.

Hum

an

rights in this

sense

is part of the

"good

governance"

agenda

.

Fran£oise

J

.

Hampson

means that they

do

not

need to be earned and

a

r

e

no

t

dependent

upon

good

be

h

av-ior. Human

rights law is

about

the relationship between those who

exercise

au-thority and those

subjected

to

its

exercise.

I

t

applies to anyone

subject

to the

exercise

of such

authority or jurisdiction, a

concept that

will

be exam

in

ed

f

urther

below.

Third, human

rights

l

aw contains

both

po

s

itiv

e and

negative ob

li

gat

i

o

n

s. No

t

only

i

s

ther

e

the

n

egative

obligation, for

example,

not to

torture

.

Only

State

agents

can

trigger responsibility for breach of the negative obligatio

n.

There is also a

posi-tive

obligation

to

prot

ec

t

persons from torture, both at

th

e

hands of

S

t

a

t

e

ag

e

nt

s

an

d

third parties. This

i

s

generally satisfied

b

y

having a properly functioning legal

sys

tem

that penalizes

t

he

behavior

in

question

a

nd

a

n

ef

f

ective system

ofinvestiga-tion

and

pro

secution

th

at e

n

sures

that wrongdoers are

pu

nished.lI

ln

some

circum-stances,

it

may require

more than

tha

t in

the way

of

protection.

9

The fourth

e

l

ement

represents a

sweeping

generalization.

Prov

ided

that caveat

i

s

n

ot

forgotten, the claim

ma

y s

till

offer

useful insights.

Human

rights law, at least

as

enforced

by regional

human

rig

hts courts,

i

s

designed principally to be

app

li

ed

after the

event.

It

pro

vides ge

n

eral

princip

l

es

which enable a judge to determine in

a precise

set

of circumstances whether

a

rule

h

as

been violated.

It i

s

capable of

con-siderable

fine-tuning, particularly

w

ith th

e

d

evelo

pm

e

nt

over time

of

fairly

consis-te

n

t

case

law. What

pe

rmi

ts s

u

ch fine-

t

uning

is

t

he

u

se oflimi

tat

ion

clauses,

which

are an

intrinsic

part of the

e

labora

tion

of

man

y

r

ights

.

For

exam

pl

e,

there is

no

ab-so

l

ute

right of freedom of

express

i

o

n.

Rather, the

start

ing

point is that

s

u

ch

a right

exists

but

it

can be

subject

to restrictions

impo

sed

by law

an

d

based on one or more

generally defined grou

n

ds, on

co

nd

it

ion

that the

limitation

is both necessary and

proportionate.]

O

In

the

case

of negative obligations, responsibility often appears

to

be based on the

r

esult

.

O

n

e exception

is responsibility for

unlawful

killings,

where

what

the

reasonable perpe

tr

ator

thought would obviously be relevant.

In

cont

ra

st,

the law of armed

conflict

is designed to provide guidance to armed forces at

th

e

time decisions are

ma

de

and actions undertaken. The

emp

h

asis

in c

riminal

pro-ceed

ings

on

wha

t

was known

at

the time

should

avoid the danger that

determina-tions of responsibility after the

even

t

will

be

based on the twenty-twenty vision of

hin

d

s

ight.

]]

The fme-tuning

occu

rs

in the

m

in

d

of

the

com

man

d

e

r,

rather than

that ofthe judge.

Is Human

R

i

ghts

Law

of Any

Relevan

ce

to

Mil

itary Opera

tions

in Afghanist

a

n?

This article will consider

five

issues: first, whet

her human rights law remains

ap-plicable

when

the law

of armed conflic

t i

s applicable;1

2

secon

d,

whether

human

right

s obligations apply extraterri

t

orially;

third, the impact

ofthe

territorial

State's

human rights obligatio

ns

for other

States

assisting it; fourth, the

effect

of a

Security

Council

mandate

on

legal

obligations

that

would otherwise

be

applicable; and,

fi-nally,

whethe

r huma

n

rights notions

cowd

offer useful

guidance

to

armed

forces,

whether or not human rights law is ap

p

licable de jure.

I

t

is

dear

that the i

nterplay between

human rights law

and

the la

w o

f

armed

con-fl

ict is

currently a source

of

confusion and

the

subject

of debate. T

he

r

e are

plau

sib

l

e

explanations

for how we have

come t

o find ourselves in

this

muddle. The law

of

armed

co

nflict

,

h

istorically, regulated

inter-State

conflicts and

civil wars

of such

in-tensity

that

they

r

esemb

l

ed

i

nter-State conflicts

. In view

of

the im

pact

of the latter

on,

for

example, trade

and ports, th

i

rd

Sta

t

es

had to recognize

belligerency to

pro-tect

their rights

as

neutrals.

u

In

1949

,

there

was

the first attempt in

treaty

law to

r

egwate every

type of internal

co

nflict

, p

rovided that it

constituted

an armed

con-flict and

not merely isolated and

sporadic

acts

of violence. 14 Traditiona

ll

y, such

conflic

t

s had

been purely the province

of

domestic l

aw,

including

cons

ti

tutional

law,

cr

iminal

l

aw

and civil

liberties. Domestic

la

w

determined the

circumstances

in

which

an

emergency could

be declared.

It

also dea

lt with

the

consequences of such

an emergency,

includi

n

g

civil

liberties

safeguards

which

could

not be

suspended.

In other

words, Common

Ar

ticl

e 3 of the Geneva Conventionsl5

made inroads,

albeit very

minimal ones, in the relationship between the individ

ual an

d the

State.1

6

A

t about the

same

time, domes

t

ic

civil

liberties rwes

surfaced

on the

inter-national plane

as

human rights law. 1

7

The shift

from domestic to intemationallaw

owed

much

t

o the desire to prevent

what was

perceived

to

have

contributed to

the

causes

of the

Second

Wor

l

d

War and

to t

he appalli

n

g conduct of

those

exercising

governmental

authority

during the

course of

the

war,

in both national and

occ

u

-pied

territory.

The

respect for

human

r

ights was

seen as a way

of

ensuring

that

peo-ple did not

"have

recourse,

as a

last

r

esort,

to rebellion

against tyranny a

n

d

oppression

.

"ls It

was

n

ecessary

to reinforce domestic provisions, designed to

pre-vent

the misuse

of

authority

but

which

could be subverted,

with international

guara

n

tees. T

he

r

egional and

in

ternational enforcement of

human rights law is not

an end

in itself.

It

is d

esigned to

pers

u

ade

a State

to

adopt the

necessary measures

at

the domestic level.

Fran£oise

J

.

Hampson

emergencies

or periods of

conflict.

The

l

aw

sought to prevent

th

e situatio

n

from

deteriorat

i

ng to that l

evel

but, if it did

so,

t

h

e

law

sought

to

ens

ur

e

that things did

not

ge

t

even worse.

From

the

ou

t

set

then, one

co

u

l

d have predicted overlap

be-twee

n

th

e

new i

nr

oads made by the law of arme

d

conflic

t

in

t

o

i

nternal

conflic

ts and

the

i

nternational

i

zat

ion of domestic

consti

tu

tiona

l

an

d

civil liberties guaran

t

ees.

Supe

rfi

cially,

t

here

m

ay

be an o

b

vious

so

l

ution

f

or

those who

seek

to keep the la

w

of armed conflic

t and huma

n ri

ghts law

separa

t

e,

rather

th

an to

seek

an

accommo-dation

between

the two bodies

of

rules. It wo

uJ

d involve

e

liminatin

g

all

l

aw of

armed co

nfli

ct

rules

applicab

l

e

in non-international

armed co

nfli

ct, o

th

e

r than

perhaps those

non

-interna

ti

o

nal

co

nfli

cts whic

h

resemble international

armed

conflicts.

Human

rights

l

aw wouJd be

th

e

only

body o

f

rules reguJa

tin

g

affairs

within a

State,

including ar

m

e

d confl

i

ct. Quite

apart

from the

p

roblem

of

eliminat-i

n

g

a

widely accepted body

of

rul

es

l9

_a

_n

_{d the question o}

_f

_{the desirab}

_il

_{ity of doing}

so,

it is difficult to

see

how

such

a rigid distinction

could be

mad

e

.

Wha

t

wo

uJd

h

appen

to those ru1

es applicab

l

e

wi

thin

a S

t

a

t

e's own te

rr

itory during

in

ternational

anned conflict?

20

Wo

uld

States

be willing to

assist

other

States

dealing

with an

in

sur-gency,

if they

were subject

t

o

human rights law,

without

any law of anned

con

flict

-i

nspired modificatio

n

?

2

1

Where we are

a

t

present may a

p

pear c

haot

ic

and

co

nfu

se

d but the

on

l

y solu

t

ion

is to

fi

n

d a

way

forward, not back. The first

s

t

e

p

is

to

seek

to clar

i

fy

the relationship

between

the

two

bodi

es of

rules.

II. Whether Human Rights

Law Remains

Applicable

When the

Law of

Anned

C

onflict Is Applicable

Is

H

uman Rights Law

of

Any Relevance to M

il

itary Operations in Afg

h

anis

t

an?

T

h

e second

p

oi

n

t

is

that

the

relations

hip

between the

t

wo bodies of

rules is

a

ge

n

eral

question, rather than

o

n

e

r

el

ati

ng

to

p

articular

rul

es.

It

h

as

never

been

sug-gested, for

examp

l

e,

that

one a

n

swer cou

ld

be

given

for rules

of

international

armed conflic

t

and another

for

rules

of

n

on-inte

rn

ational armed

co

nfli

ct.

Either

the

applicability

of

the

l

aw

of armed

conflict

h

as

th

e effec

t

of "turning off'

the

ap-plicabilityofhuman rights law or it

do

es

not.

This is a

furth

e

r r

easo

n

why the

solu-tion

discussed at the

e

nd

of

the

introduction i

s,

in fact, no

so

lution.

T

hr

ee se

p

arate

qu

es

tion

s

n

ee

d

to

be

distinguished. The first is

whethe

r

hwnan

right

s

l

aw

remains

app

li

cab

l

e

at

all

when

the

l

aw

of

a

rm

ed co

n

flict

is

applica

bl

e.

I

f

that is

a

n

swered

in the affirmat

i

ve,

two

furt

h

e

r

,

related q

u

est

i

o

n

s

b

eco

m

e

relevant.

Fi

r

st,

to

what exte

n

t

is

human

rights

l

aw

ap

plicabl

e and, second,

h

ow,

if

at all,

a

r

e

the

relevant huma

n

rights norms affected

b

y

the

a

ppli

cability of

the law

of

armed

conflic

t

?

A

.

Whether Human Rights Law Is Applicable

at

All

The

r

e

is

overwhelmi

n

g evi

d

e

n

ce

that human rights

l

aw

does

r

emain app

l

icab

l

e

when

th

e

l

aw o

f

a

rm

e

d

co

nflict

is

ap

plicabl

e.

This is to

be

found in

tr

eaty

law,

p

ar-tic

ularl

y

those

treaties dealing

with civil

and political

right

s.

Th

e

derogation

cla

u

ses

B

_pro

_vide

_that

_ce

_rt

_ain

_right

_s

_remain

_a

_ppl

_{icable even}

_durin

_{g "}

_war

_o

_r

_other

public

eme

r

gency

.

"z.t Such si

tu

a

tions

clearly include ones

in

w

h

ich

the

law

of

armed conflict w

ill

also be

app

lic

ab

l

e. A

large

m

ajority of States a

r

e boun

d

by one

or

more of

such

treaties.

25

_State

_practice

_c

_onfirm

_s

_this

_initial

_im

_{pression. As}

_f

_a

_r

_as

politica

l

organs are conce

rn

ed,

the

General Asse

mbl

y,

the

Sec

uri

ty Council

and the

Hum

a

n Right

s Counc

il

(

and its

pr

edecessor,

the

UN Co

mmis

sion

on

Hum

an

Rights

)

h

ave

passed

both

su

b

ject

and

s

itua

tio

n

-s

p

ecific

r

eso

lutions in

which

refer-ence

is made to

both

human rights

l

aw and

th

e

l

aw

of

armed conflict

.

26

In

the

case

of judici

al

and

quasi

-j

udici

al organs,

the

In

te

rn

atio

nal

Court of

Ju

stice (lCn stated

clear

ly that human

righ

ts law

r

emains app

li

cab

l

e

in

all

ci

r

cumstances, su

b

ject

only to

derogation

.21

The principal

hum

a

n

rights treaty monitoring

body a

t th

e

interna-tio

nall

eve

l

,

th

e

Hum

an

Rights

Committee,

in its general

comment

on

states

of

emer-gency,28

in

its

co

ncludin

g

obselVations

on State

reports

29

_and

_in

_{determinations in}

individual

cases,

h

as

equally made it

dear

that hwnan rights

la

w

is

not

displaced

by

the

app

lica

bility of

the law of armed

con

fli

ct.

30

_The

_m

_ost

_relevant,

_{in thi}

_{s con}

_t

_ext,

_of

the

Special

Pr

ocedures

have

also

exp

r

essed

concerns

fra

m

ed

in

t

erms

of

hum

an

Fran£oise J

.

Hampson

Commission on

Human

and Peoples' Rights

ha

ve

also applied hwnan rights

law in

circumstances in

which the

law of

anned

conflict was clearly applicable.

The

on

l

y currently

dissenting

view

is that

of

two

States:

Israel

and

the United

States. Israel

appears never to have

disputed

the applicability

of

the International

Covenant

on

Civil

and Political Rights

in

Israel itself,

even

though, as

a party

to

ac-tual and/or arguable

armed conflicts,

it

has

rights

and

obligations under the

law

of

armed

conflict

which have an impact within Israel.

32

_Its

_objection

_has

_{focused on}

theapplicabilityofhuman rights law in occupied territory,

which involves

both the

relationship with

the law of

armed

conflict

and th

e

question of the

extraterritorial

applicability

of

human rights law.

3)

Since

the

overwhelming

weight of evidence

suggests that the applicability of the law of

armed conflict

does

not di

splace

that of

human rights

law,

the question then

becomes whether Israel and

the

United Stat

es

can

claim

to

be

persistent

objectors. The first difficulty for the

United States is

that,

at the time of its

ratification

of the International

Covenant

on Civil and Political

Rights,

the

approach of the

Human

Rights

Committee

was already clear

.

The

fail-ure of

the Uni

ted States

to

enter

a reservation or interpretative declaration on

this

specific question calls into question the

persistence of any alleged objection.3

4

_A

Is Human Rights

Law

of Any Relevance to Military Operations in Afghanistan?

It

seems

clear

that

human rights law

remains

applicable

even

when the law

of

armed conflict

is applicable

and it see

ms

doubtful that Israel and the

Uni

t

ed States

can

avoid that

conclusion by seeking

to re

l

y

on the persistent-objector

principle

.

B. To What Extent Is Human Rights

Law

Applicable When the

Law

of

Armed

Conflict

Is

Applicable?

The General Assembly and

t

he

Security Council

have

not

addressed this specific

is-sue. Since

their reso

l

utions

confirm t

hat bot

h

human rights law

and

the law

of

armed con

fl

ict

may

be

simultaneously

ap

pl

icable but do not

explain the

extent

to

which

the former

is applicable, they

should

probably

be

interpreted

as saying

"

to

the

exte

n

t that" human rights

l

aw

is

applicab

l

e

.

The

IC]

has

been

much more

specific. In

the

Advisory

Opinion

The

Legal

Conse-qllences of the Constrlldiml

ofa Wall in the

OCCllpied Palestinian Territory,

the

Court

stated

that human rights law

remains applicable su

b

ject

only

to

derogation.

38 _It

then

applied

i

ts s

t

atement in

a co

n

tentious case,

Armed Activities on

the

Territory of

the Congo,39

where

it

found violations of

both the law

of

anned

conflict (Article 51

of

Additional

Protocol I

)

and

Article

6

of

the International Covenant

on

Civil

and

Political Rights

(prohibition

of arbitrary

killings

)

on

the

basis of

the

same

facts. The

facts

fo

und

were stark and

involved a non-derogab

l

e

right. The

case

therefo

re

sheds

little

light on the

extent

to which human rights

law was

applicable.

On the basis

of the Ie

] statement

in the Advisory

Opinion,

all

non-derogable

rights

remain

applicab

l

e in

the usual way.

It

also

implies

that

if

a State

has not

cho-sen

to derogate,

the

full

range of

human r

i

ghts obligations will be applicable. At

this

point it

is necessary

to

explain briefly

what is meant by derogation

under

human

rights

la

w.

Fran£oise

J

.

Hampson

explanation for non-derogation.

If a State wishes to take measures not no

nnally

permitted under human rights law. it is

required to derogate.

It

is clear that a

pub-lic emergency does not

de

jure

trigger the modified applicability of human rights

law

.

This is in contrast to the law of armed conflict. which is applicable by virtue of

the facts and whether

or not the State(s)

i

n question concede(s) its applicability.

It

is therefore easy to envisage a situation in which a State has not derogated. and in

which the full range of human rights obligations are applicable according to the

ICJ.

but in which the law of

armed conflict is applicable.

40 _It

_is

_n

_{ot clear whether a}

State which

is assisting

a territo

rial

S

t

ate

in

dealing wi

th

a non-internatio

n

al

armed co

n

flict can

rely on the derogation of the latter or whether it can derogate

in its own

r

ight. based on an emergency threatening the li

fe

of the nation outside

its own terri

tory.

It

is up to

the

human righ

ts body to determine whether the situation represents

a

public emergency threatening the lif

e of the nation.4l The body will allow the

State a "margin of appreciation"

in

its characterization of the situat

ion.42 Under

the human rights treaties. the State is required to notify a designated authority that

it is invoking its power to deroga

t

e

.

.f3 It

has to provide an indication of which

obli-gat

i

ons it is

derogating fro

m. what meas

ures it has introduced and an explanation

of

the need for those

measures

.

Certain provisions. non-derogable rights. cannot

be modified

in any circumstances

.

While th

e list of non-derogable rights

varies

from treat

y to treaty. they all include the prohibition of arbitrary killings. torture

44

and

slavery and do not include the provision dealing with detention

.

4s

Just

because a righ

t is pote

n

tially derogable does not mean

that the right as a

whole can be suspended.

As

indicated above. any exceptional restriction has to be

both necessary and proportionate.

46

_{Furthermore. certain restrictions are go}

_in

_{g to}

be more difficult to

justify than others. For example. while it may be possib

l

e

to

jus-tify the creation of a new grou

n

d of dete

n

tion, such as internment or

administra-tive

detention.

i

t

will

be difficult to justify suspensio

n

of all form of review of

lawfulness of detention

{1labeas corpus

and

amparo)

.

.f'

This brief explanation of derogation helps put in context the statement of the

IC]

that human rights law remains fully applicable. subject only to derogatio

n

.

In

Gene

r

al Comment No.

29,

the Human

Rights

Committee has provided a

much

fuller analysis of

the extent to which human rights law remains applicable

during pub

lic emergencies.

4_{! It}

_{first clarified the types of situations in which}

dero-gation is

possible

.

49

_It

_{emphasized that the limitation clauses enable the Commi}

_ttee

I

s

H

u

m

a

n

Rig

h

ts

La

w o

f

A

n

y

R

e

l

ev

a

nce t

o M

ilitary Opera

ti

o

ns

i

n

A

f

g

han

is

ta

n

?

a gap, where some human rights guarantees

h

ave been withdrawn but

law of armed

co

nfl

ict

protections are not available.

52

_{The Committee identifies three basic}

prin-ciples.

First, non-derogable rights remain applicable a

t

all

times.

53

_{The second and}

th

ird

principles

conce

rn

potenti

a

ll

y derogable rights

.

A

req

uirement of h

wnan

righ

ts law which is

prima faciederogable

m

ay. i

n

effect, be non-derogable ifit

pla

ys

a vital role

in

prevent

in

g vio

lation

s o

f

a non-derogable right.

S4

An obvious exa

mp

le

is review of

lawfulness of

deten

t

ion, which is said to playa key role in preventing

torture and other fonus of proscribed ill treatment.

It

is not that this e

l

ement of

Ar-ticle 9 of

the International Covenant on Civil and Political Rights, dealing with

de-tention, is added

to

the list of

non

-

derogable rights. That would fly in the face of

the

express words of the treaty.

It

is rather that States are likely to find it

imp

ossible to

j

ust

i

fy

the necessity of the

total

exti

n

ct

i

o

n of the right, eve

n

though they may be

able to explain the necessity of

changes in

it

s usual

modaliti

es. This second principle

may ap

ply to specific elements in the con

text of a wid

er right. The third principle

concerns the essen

ce or

co

r

e of

the wider

right

itself. The

Committe

e

suggested

that

it would be

hard to justify the s

u

spens

i

on o

f

the very essence of

a right, even if

vari-ous constituent elements could be modified.

55

_{Again, an obvious example exists in}

the field

of

detention. Whi

l

e,

in an emergen

cy,

it may be possi

bl

e to crea

te

addi-tional g

round

s of

detention

, to modify the modalities of review of

lawfulness and

to lengthen the

p

eriod

during which a person may be held before being

brought

be-fore a judicial officer, it would never be possible to justify unacknowledged

deten-tion (disappeara

n

ces).56To

hold

ot

h

efW"

i

se would be to

d

eprive the detainees of

all

protection of

the law.

When monitoring State reports, the H

wnan

Rights Committee has not always

mad

e clear, in the Concluding O

b

servatio

n

s, the precise basis of

its analysis. When

the Committee raises one

i

ssue but not a

noth

er,

it

is not clear whether its failure to

raise the second is because the alleged violation wo

uld, on account of the

circum-sta

n

ces,

be

cove

r

ed by the operation of

a

limita

tio

n cl

ause or because

it would be

covered by a derogation or because it did

n

ot

ha

ve the t

im

e to cons

id

er the issue

.5'

All that

can

be said

i

n

general

t

erms is

that th

e

practice of

th

e Committee in

its

Concl

udin

g Observations appears to

reflect Gen

eral Comment No. 29.

It

is also

n

otewort

h

y that no

State has objected to the Genera

l

Commen

t

, even though three

States reacted

to

Gen

eral Commen

t

No.

24 on reservations.

:>8

At the very

l

east, this

suggests that the United States, the United Kingdom and Fran

ce

(

the three States in

q

uestio

n

)

had no objection to General Com

m

ent No. 29.

59

Fran£oise J.

Hampson

engaged in peace support operatio

n

s outside national borders.6

1

It

i

s less clear how

it

would deal with the

rel

evance of human rights law to an international armed

conflict. The ICJ's s

t

atements are in fact contradictory. On the o

n

e hand

,

it has said

that human rights law re

m

ains app

l

icable in all situations, subject only to

deroga-tion, which im

p

lies that that body of

law is relevant even in relation to the con

du

ct

of

military operatio

n

s.6

2

O

n

the other hand, the Court has s

tated

,

As

regards the relationship between international hwnanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international hwnanitarian law; others may

be

exclusively matters of hwnan rights law; yet others may

be matters of

both these branches of international law.63

This imp

l

ies that there are sit

u

a

ti

ons

not

regulated by human rights law b

u

t, given

the ear

li

e

r

co

mm

en

t

, it is not clear what those might be.

The

Int

er-America

n

Commiss

ion

on

Human

R

i

ghts and the

I

nter-American

Court

of

Human

Rights

offer a

more

comp

li

cated

picture. They

apply

hum

an

rights law,

t

aki

n

g account of

any

derogation, in si

tuati

ons of

emerge

n

cy.6-I In so

m

e

circ

um

stances, however, they will take account of

the

l

aw of

armed co

nfli

ct

in

in-terpreting human

ri

ghts law.

6s

_They

_d

_{o so proprio}

_motu.

_{They o}

_nl

_y

_m

_{ake a fi}

_ndin

_g

of violation of

human

ri

ghts law

, not

of the

l

aw of armed conflict. What is less clear

is whethe

r

they take accoun

t

of the

l

atter in all situations

in

whic

h

i

t

may

b

e rele

-vant.

I

f

n

o

t

, what

cr

i

teria

are

they applyi

n

g? Does it

d

epend o

n

the issue and/or

w

h

ether there is a

rel

evan

t

an

d

specific rule of

the law of armed conflict

?M

Is

H

uman Rights

Law

of Any Relevance to M

il

itary Operations in Afghanistan?

ha

ve

introduced

a ground

of detention

n

o

t

nonnally

l

awful.

The detention

of

pri

s-oners of

war was

therefore foun

d

to be unlawful!

One

of the ways in

wh

i

ch

the

Court

ha

s avoided

ha

ving

t

o

face the issue is

as

a result

of

its

v

i

ew

of the

extrate

rrit

orial

ap-plicability

of

huma

n

rights law,

w

hi

c

h

will

be discussed in the next

section.

C.

How Are the

R

elevant

H

um

an Rights Norms Affected by the Applicability

of the

Law of

Armed

Co

n

flict?

The

focus in this

subsec

tion

will

be

on

the human rights norms dealing with

kill-ings

and

deten

tio

n.

It

s

h

oul

d

be

noted that

ot

h

e

r

rights

are

also relevant

,

notab

l

y

those re

l

ati

n

g

t

o

due

p

rocess, f

r

eedom o

f

speech,

freedom of assemb

l

y

and the right

to

a

remedy,

p

articular

l

y when Sta

t

es are assist

in

g a

n

othe

r

S

tat

e.

68

Supe

rfi

cially,

there

sho

uld

be

no real difficulty in

reconciling

human rights

la

w

an

d th

e

law of

a

rm

ed co

nfli

ct for

the

Human

Rights

Co

mmi

ttee, an

d

for the

Int

er-American Commissio

n

o

n

Human

Rights

and

the

Int

er-America

n

Cou

rt

of

Human

Rights.

In

both cases,

the

hum

an

righ

ts

provision prohibits arbitrary

kill-ings.

69

_{The right}

_is

_non-derogab

_l

_e.

70

_{What would be arbitrary in a}

_peacet

_im

_e

con-text, in

whic

h th

e

framework

o

f

analysis

is

a

law and order paradigm

,

is not the

same as

what

would

be arbitrary in a

l

aw

of armed conflic

t

context.

It would be

straightforwa

rd

for

the human rights monitoring

bo

di

es

to interpret

"a

rbitrary" as

m

ea

nin

g

that a killing in

co

nformity

with the

l

aw

of armed

co

nflict

was not

arbi-trary

in a

conflict context or

at

l

eas

t

whe

r

e

it occurred

as

part

o

f

a

military

opera-tion.

It

s

hould

be

noted that

thi

s woul

d

represent

a

reduction in

th

e curre

n

t

l

eve

l

o

f

protection in non-international anned

co

nflic

ts, whe

r

e

th

e framewo

rk

applied is

usually the law and order paradigm.

71

There is, however

,

a

real difficulty for parties

t

o

the European

Convention

for

Human

Rights.

T

h

e

provision

o

n

the

use

of

potentially

l

ethal

force

lists exhaus

ti

v

el

y

the

only grounds

on

which Sta

t

e

ag

ents

may

resort

to

such a

u

se of

force.

72

It

i

s

based on

the law and

order

paradigm

.

The derogatio

n

pro

visio

n

ex

pr

es

sl

y e

n

visages

the possibility

of

derogation

so as to

pennit

"lawful

acts

of wa

r.

"13

In

order

to

in-voke the

provision,

th

e S

t

ate wo

uld h

ave

to derogate.

No Sta

t

e

h

as ever

d

e

ro

gated

from Article

2

of the

Conve

nti

on,

whether involved in a non

-

internationa

l

anned

conflict or

international

armed conflict

and

whether

the

conflict was

in national

territory or

ex

trat

erritorial. S

in

ce

the law of armed

conflic

t i

s

not

a

ppli

cable

by

v

ir

tue of

its

being

invoked but

by virtue

of the

f

ac

t

s,

it might

be open

to the

Euro-pean

Court of

Human

Rights

to

choose

to

u

se

the

l

aw of ar

m

ed conflict

as

a

frame

of reference.7

4 _It

_h

_as

_not

_yet

_chose

_{n t}

_o

_do

_so

_{in relation to non-international}

Franfoist

J.

Hampson

inter-State

case

introduced

by Geo

r

gia

against Russia and the

man

y

individual

cases

brought by

Geo

r

gians

and Russians.

In the

case

of

d

ete

n

tion,

the International

Covenant

on

Civil

and Political

Rights and the

Am

erican Conven

t

io

n

on

Hu

man

Righ

t

s

again prohibit

arb

i

tra

ry

detention

.7

6

_T

_h

_e

_pro

_{visions are}

_{potentially derogable}

_P

_{There are}

_elements

_to

_the

right

which

may be

modifi

ed

but

from w

hich

it is

unlik

ely

that

States

will

b

e

al-lowed to depart

com

pl

etely,

not

ably

the provision for review of detention.

78 _It

see

m

s

dear that

a State

may, by derogation

,

introduce additional

except

ional

g

round

s

of detention.

It

i

s

not dear whether a

S

tat

e

n

eeds

to

dero

gate

in

order

to

justify internment

o

r

administrative detention.

79

Th

e case

la

w

ma

k

es

it dear

th

at

detention has to

be

lawfully

authorized.

The law of

armed co

nflict

itself provides

legal authority

for

detention

u

nd

er Geneva Conventions

III

and

I

V

in

int

e

rnational

armed

conflic

t

s

. There is no equivalent provision in relation

to

non

-i

nternational

armed

co

nflicts.

Additio

nal Protocol

II

recognizes that

p

eo

pl

e

may be detained and

provides guarantees for

s

u

c

h

detainees

but

it

do

es

not

it

self

authorize detention.

Th

i

s

is not

surpris

ing

, s

in

ce

th

e

underlying

asswnptio

n

is that the fighting is

occur-r

ing

in the

territory

of one

State

and the grounds of detention would be expected to

be regulated by the

do

m

estic

law of that

S

tat

e.

This is most

lik

el

y

to be a problem

where

States a

r

e

in

volved

in an

extra

t

e

rritori

a

l non-international armed

conflic

t.

That will

b

e

discussed in the following

sec

tio

ns.

The

situatio

n

is different for parties to the European

C

onv

en

tio

n

for

Human

Rights. Again, the Convention does not prohibit arbitrary detention

but

lists

exhaust

i

vely

the

only l

eg

itimat

e

grounds of detention.

so

In

order to

introd

u

ce

ad-ditional grounds,

a Sta

t

e

is required to

d

erogate.

Ifit

does

so,

it

ma

y

b

e

able to

jus-tify the

introduction

of

int

ernme

nt

or administrative detention.

81

_The

_is

_sue

_of

extraterritorial

d

ete

ntion

will be

exa

min

ed

in

the next

section.

I

t

therefore appears that it

ma

ybe

possible for at

l

east

some

human right

s

bodies

to accommodate the law of armed

co

nfl

i

c

t

but

tha

t

it may

b

e

necessary to derogate

to make lawful

exce

ptional

grounds of

d

etention.

It

was also

see

n

that the

applica-tion of the law of armed

co

nfl

ic

t

would

en

tail

the

reducti

on

of

existing

protection

in relation to arbitrary killings, at l

eas

t in

non-international armed

conflicts.

Hwnan

righ

t

s

bodies

can

take account of

t

h

e

law of armed

conflic

t but should

they do

so

and, if

so,

in

w

ha

t

c

ir

c

umstan

ces?

When

d

eal

i

ng

with the inter-relationship between the law of armed

co

nfli

ct

and

hwna

n

righ

ts

law, the

I

C]

referred to the former as the

lex

specialis

. In

some

ways,

this is unhelpful

becau

se

lex

specialis

more

easi

l

y

applies to a vertical relationship

Is Human

Rights

Law

of Any

Relevance to

Military

Operations

in Afghanistan?

another.

The relationship

is

horizontal,

rather

than

vertical. Nevertheless,

it is

clear

in general terms

what

the Ie) is

saying.

Law of armed

co

n

flict rules

are

best

su

i

ted

to

conflict situations because

they have been designed for that

context.

What

is not

clear

is

what

precisely that means

in

practice. Does

i

t mean that in

conflict

situa-tions

all hwnan rights norms

sho

u

ld

be

interpreted in the light

of

the

law of

armed

conflict, so

that

no

violation will

be

found

if there

is

no violation of

that

body of

law? That

would

be

unworkable.

There

is nothing in the law of armed

conflict

about

the right to marry. The mere fact that

suspending the

right

to

marry

wou

l

d

not

violate

the law

of armed conflict, which

does

not

address

the

issue, is hardly

sufficient ground

for

suspending

the human rights provision. Another possibility

would be

that a human rights norm

should

only

be

affected by the law

of armed

conflict where

there is a relevant

law

of armed

conflict

provision. This would lead

to the

bizarre

result

that

the law

of arm

ed co

nflict would affect

killings

and

deten-tion but

not

the

right to demonstrate.

83 _It

_{has also been}

_suggested

_{that a human}

rights

body

should

move backward

and

forward between the two areas of law,

d

e-pending

on

the issue.

84

_On

_that

_basis,

_{the law of armed}

_{conflict would deal with}

gro

unds of

detention

and

review

of

detention in international armed

conflicts

but

not

in

n

on-

i

nternat

i

onal armed conflicts. Si

n

ce

the

law

of

armed con

flict does not

define

"court" or "tribunal,"

the test to be applied

would be

a human rights

law

test. With regard to issues

such

as the right to

swnmon witnesses, where

there is

again

no provision

in

the law of armed

conflict,

reliance

would

be placed on

hu-man rights law.

It

is

submitted that

the

to-ing and

fro-ing between two

l

egal

re-gimes is unworkable in

practice.

It

is rather as though parts of a Mercedes

were

fitted

to a VW

Beetle.

Human

rights law might

offe

r

useful

guidance

as

to the issues

which

need to be

addressed,

but

to suggest

that human rights l

aw

due

processguar-antees should apply

in the

normal way wou

l

d again lead to bizarre results.

It

would

be

more

workable

if a

State

had derogated

from

the usual due process guarantees,

not by

e

l

iminating the

guarantees

but by mod

i

fying them.

It

is too

soon to

know

how the

lex specialis

rule is

going

to be

applied

in practice.

A

practical

way fOlWard

will

be

suggested

in the

conclusion.

It

is

clear

that

to some extent

human

rights

l

aw

remains applicable in

situations

of conflict,

particularly

non

-international

armed

conflic

t,

but the precise

extent

of

that

co-applicability

and the manner in which

the

law of armed

conflict

impacts

upon the interpretation

of

human rights law is not

yet clear.

Ill. The Extraterritorial Applicability

of

Human

Rights