A common insight on humanrightslaw as an instrument that aimed
to protect the human dignity and values are often regarded to be separate from international humanitarianlaw. In relation to the norms, the difference between the two concepts related to the current conflict arise many debates. This paper reviews the common thread of the two international legal instruments. The connection between the two can be elaborated by explaining the concept; similarities and dissimilarities; and linking the basis for the establishment of legal instruments between humanrightslaw and international humanitarianlaw. The results of research indicated that between international humanitarianlaw and humanrightslaw have relevant rules applied in conflict situations. International humanitarianlaw as an instrument of international law is specifically applied in situations of armedconflict, whereas humanrightslaw as a general instrument can be applied both in peace or conflict conditions. In a condition of armedconflict, international humanitarianlaw as a lex specialist is not widely interpreted to set aside humanrightslaw. Humanrightslaw is applied if facts or incidents exist in armedconflict that is contrary to human values.
humanrightslaw is not entirely displaced by humanitarianlaw during times of armedconflict, but, again, humanitarianlaw prevails in event-specific cases of conflict.
The event-specific decision rule is attractive in part be- cause it adopts the simplicity of the Displacement Model, but in a more fine-grained manner. It allows humanrightslaw to re- main applicable in all but those specific situations in which there is direct conflict between the two bodies of law. When the two bodies of law do conflict, it provides a clear and straight- forward decision rule: displace humanrightslaw with humani- tarian law. Yet again the simplicity comes at a cost. Event- specific displacement denies that humanrightslaw may be bet- ter designed to regulate certain hostile situations. It is there- fore not well suited to the increasingly common situations in which armedconflict takes place outside the traditional battle- field. Moreover, by always displacing humanrightslaw it comes into conflict with humanitarianlaw, this approach could deny jurisdiction to humanrights treaty-based judicial bodies in cases in which a State allegedly violated its humanrights obligations.
A. Safety of Journalists and Media Facilities during the South Sudan Conflict 1. The Conflict in South Sudan
In July 2011, South Sudan gained independence from Sudan. 318 Since its independence, there was constant conflict, however, on 15 December 2013, intense fighting broke out between the ruling Sudan People’s Liberation Army (hereinafter SPLA) supporting President Salva Kiir and dissidents of the same party in support of Vice President Riek Machar, known as Sudan People’s Liberation Movement/Army- in-opposition (hereinafter SPLMA). 319 The fighting spread from Juba to other areas and is for the most part along ethnic lines, as SPLA fighters mostly come from the country’s largest ethnic group Dinka while SPLMA fighters from the second largest group Nuer. 320 Within a few days, the hostilities amounted to a NIAC fulfilling the relevant conditions. 321 First, the SPLMA is a non-state armed group exceeding the needed level of organisation and second, the fighting soon reached an intensity going beyond mere internal disturbances (by 26 December 2013, at least 121,600 people were displaced and at least 1,000 killed). 322 The end of the conflict is not foreseeable since a Peace Agreement from August 2015 finally collapsed in July 2016, 323 and a Cessation of Hostilities Agreement from December 2017 was already repeatedly violated in January 2018. 324
The Goldstone Report, issued in September 2009, is the product of the United Nations Fact-Finding Mission on the Gaza Conflict, established, interestingly enough, by the President of the UN HumanRights Council in April 2009. Its man- date was “to investigate all violations of international humanrightslaw and inter- national humanitarianlaw that might have been committed at any time in the context of the military operations that were conducted in Gaza during the period [between] December 27, 2008 and January 18, 2009, whether before, during or after.” 2 The military operations being referenced were, of course, those of the Israeli
Compulsory education, in particular history and religious education, is often used by states as a critical tool of nation building, as states attempt to socialize and shape the attitudes and beliefs of citizens in line with their strategic aims. As a state that defines itself as "Jewish and democratic" and that has instituted special compulsory education curricula for students on the basis of ethnicity and religion, the state of Israel is no exception. The Syrian Golan despite being under occupation by Israel for the last forty- five years has been written about only sparingly compared to the overwhelming amount of research that has been performed on the Occupied Palestinian Territories. The Druze residents of the Occupied Syrian Golan are subject to a separate compulsory education curriculum designed and implemented by the state of Israel that attempts to shape their identity in religious terms that reflect Israel's strategic aims at the expense of accurately depicting the history and heritage of the Syrian Golan and its residents. It attempts to obscure their identity as Syrian Arabs entirely, focusing instead on a narrative of historical similarity and alliance of Druze and Jews and their common persecution by Muslims. And most importantly, it is the same curriculum that Israel has created for its own citizens, highlighting a fundamental problem in Israel’s denial that it occupies the Syrian Golan. The problem in the Syrian Golan is not simply that the residents receive a separate education on the basis of religious and ethnic difference. It is not simply that the residents are left without the option of choosing an alternative education for their children that respects their origins. It is that the abuse of the principle of non-annexation has fundamental consequences for the human dignity of the affected residents, and negative implications on the international legal system upon which the principle is based. This study undertakes to analyze the problem of education in the occupied Golan in relation to norms of IHRL and IHL and to propose reconciliation between these conflicting norms to the extent that it is possible. It will focus primarily on Israel’s obligations under the ICESCR, CRC, CADE, and key international humanitarian agreements including the Fourth Geneva Convention and the Hague Regulations in the context of belligerent occupation. And finally, it will briefly analyze the problematic legal consequences of Israel’s conduct in relation to the residents of the Syrian Golan, and the international legal system.
An analysis of the position under customary law requires a distinction to be drawn between customary law without the Interpretive Guidance and customary law taking it into account. The expansive view, based on the Customary Interna- tional HumanitarianLaw study, the caselaw of the ICTY and ICTR, and the provi- sions of the Statute of the International Criminal Court, suggests that in all NIACs a person can be targeted only if he takes a direct part in hostilities. This is not the same as the humanrights test based on the threat posed by the behavior of the in- dividual at the time, but it is at least based on behavior. It might be possible for humanrights bodies to accommodate themselves to that slight widening of the concept of threat, particularly those bodies applying a prohibition of “arbitrary killings.” The picture changes if we take account of the Interpretive Guidance. On that basis, a person may be targeted in all NIACs either on account of his taking a direct part in hostilities or because he is a member of an organized armed group belonging to a party to the conflict and exercising a continuous combat function. That last element involves targeting on the basis of status and doing so in a situa- tion in which humanrights bodies have hitherto applied, without apparent con- troversy, a behavior test. That is likely to complicate rather than to facilitate the operationalization of the relationship between LOAC and HRsL.
15 Louise Doswald-Beck was appointed a Professor of the Graduate Institute of International Studies and Director of the University
Centre for International HumanitarianLaw (now the Geneva Academy of International HumanitarianLaw and HumanRights) on 1 October 2003. Of British origin, she began her academic career in 1975 after being called to the Bar in London. She was a lecturer in international law at Exeter University and then at London University where she taught, inter alia, LLM courses on the law of armedconflict and the use of force and the international protection of humanrights. Between 1987 and February 2001, she was a legal adviser at the International Committee of the Red Cross and became Head of the Legal Division in March 1998. During her period at the ICRC, she played a major role in negotiations that led to various international instruments such as: the Statute of the International Criminal Court and its Elements of Crimes, Protocols II (amended) and IV of the Convention on Certain Conventional Weapons, the Ottawa Convention on Anti-Personnel Landmines, Protocol II to the Hague Convention on Cultural Property and the San Remo Manual on armed conflicts at sea. Between March 2001 and August 2003, she was Secretary-General of the International Commission of Jurists, a non-governmental organisation that works for the protection of humanrights through the rule of law. She has written extensively on subjects relating to the use of force, humanitarianlaw and humanrightslaw, including the ICRC’s study on customary international humanitarianlaw for which she was awareded by the Ciardi Prize at the time of the XVIIth Congress of the International Society for Military Law and the Law of War.
International humanitarianlaw is a set of rules that aim to limit the effects of armed conflicts on people, including civilians, persons no longer taking part in hostilities, and even those who are still involved, such fighters. To achieve this objective, international humanitarianlaw covers two main areas: protection of persons and restrictions on means and methods of warfare. 6 The sources of international humanitarianlaw are legal instruments and customary international law: its rules are contained in a series of conventions and protocols. The main instruments of modern international humanitarianlaw are: the Hague Regulations, the Geneva Convention, Additional Protocols to the Geneva Convention (the first Protocol on the protection of victims of international armed conflicts and the Second Protocol is relative to the Protection of Victims of International Armed Conflicts. 7
constrained than those at regional tribunals, since the statutes of regional tribunals may explicitly limit consideration of areas of law not referred to under their statutes. 71
The potential for conflicting outcomes presents unique challenges for any judicial body attempting to evaluate a set of facts where both IHL and HRL may apply, such as in situations of occupation or armedconflict. In particular, the utilization of IHL by humanrights tribunals has led to sig- nificant controversy, since important distinctions and interpretations of terminology exist between the two areas. Finders of fact at humanrights tribunals face an additional challenge above and beyond the substantive question of how these two areas of law should interface, and what the appropriate understanding of the lex specialis approach indicates. Humanrights tribunals, such as those in the Inter-American System, are limited in their subject matter jurisdiction to humanrights claims against States and to evaluation of breaches of law as specifically permitted by their constitu- tive instruments. 72
of 1949 that include four conventions. Geneva I, on wounded and sick in the ﬁeld, Geneva II on wounded and sick at sea, Geneva III on prisoners of war and Geneva IV on civilians. Hague law that is concerned with means and methods of warfare consists of conventions of 1899 and 1907, respectively. These conventions generally regulate the conduct of hostilities on land, at sea, and air - regarding projectiles launched from balloons. As stated above, Hague and Geneva Law afterward merged into two Additional Protocols to Geneva Conventions negotiated in 1977. Additional protocol I (API) applicable to international armed conﬂict or IAC and Additional protocol II (APII) concerned mainly with non-international armed conﬂict or NIAC. Article 35 of API further reafﬁrms a customary rule that means and methods of warfare are not unlimited. The rule was introduced in the St. Petersburg declaration of 1868, later reafﬁrmed in the Hague Conventions and further in military manuals. It therefore represents one of the fundamental customary rules. It is important to remember that the law of armed conﬂict applies only during international or non-international armedconflict. These are defined in Geneva Conventions; however, in reality, it is sometimes difﬁcult to precisely deﬁne the nature of a particular conﬂict, and these are often interchangeable, i.e., IAC can become NIAC and vice versa. Sometimes IAC can occur simultaneously with NIAC. Concurrently, it is essential to acknowledge the application of other rules, such as domestic law or international humanrightslaw (IHRL). Even though there might be inevitable friction between the law of armed conﬂict or LOAC with IHRL regarding, for instance, the deﬁnition of combatants, treatment of prisoners of war, or judicial proceedings. However, humanrightslaw and the law of armed conﬂict should be seen as complementary not contradictory.
Humanrightslaw and the law of NIAC do not conflict with each other. Instead they complement one another, as both impose constraints on violence rather than licenses to commit violence. As Additional Protocol II makes clear, humanrightslaw “offers a basic protection to the human person,” while the law of NIAC aims “to ensure a better protection for the victims of armed conflicts.” 26 Accordingly, “when Protocol II establishes a higher standard than the Covenant [on Civil and Political Rights], it must prevail,” while “provisions of the Covenant . . . which provide for a higher standard of protection than the protocol should be regarded as applicable” in appropriate cases. 27
spective State obligations under international humanrightslaw. This will produce significantly disparate effects in terms of sanctions, e.g., in the case of States who are parties to the European Convention on HumanRights as compared to that of those States who have obligations under the International Covenant on Civil and Political Rights alone. This is largely due to the enforcement mechanisms in place in relation to each of these treaty structures. While this difference may well have an impact on the formal aspects of enforcement (e.g., court rulings and pecuniary awards against States in the case of the former), one cannot avoid the implications for States that flow from judgments of courts like the European Court of HumanRights and Inter-American Court of HumanRights, or bodies such as the United Nations HumanRights Council. Such pronouncements, influencing as they do in the age of mass communication the court of public opinion, may well have a deter- mining effect on the preparedness of States to employ autonomous systems ahead of the creation of any corresponding permissive environment, whether this be po- litical or social.
military necessity certainly invites interpretive disagreement resulting from differing weight being placed on each of these underlying concerns.
Yet, while these two uses of ‘rights’ in IHL may not be incompatible as such, it is submitted that the tension emerges in the different understandings of IHL’s purpose that underlies each, or, to put it another way, what these claims mean for the role that law is to serve in contemporary armedconflict. In Serdar Mohammed, IHL was invoked for quite a different purpose than it was in the Jurisdictional Immunities case, not as a protective legal regime that empowers individuals to assert and enforce their own rights, but rather as a permissive regime empowering States to take measures that would not otherwise be lawful. Indeed, this contemporary resurgence in the notion of State rights seems to challenge the view presented above of IHL as an increasingly humanised and individual-focused body of law. The different ways in which the notion of ‘rights’ is invoked in these claims thus have important implications for, and present radically different views of, the law’s raison d’etre, i.e. the purpose that IHL is to serve in armedconflict. This is clear when comparing the reliance on IHL by the UK in Serdar Mohammed as a source of State rights to detain with Italy’s assertion in the Jurisdictional Immunities case that ‘IHL does not pose rights and obligations in the interests of the Contracting Parties, but to protect persons … This is more than a fundamental principle of IHL, it is its very raison d’être’. 139 This disagreement over IHL’s
Group Rights, and Peoples’ Rights’ (1999) 21 HumanRights Quarterly 80, at 84-85: based on Raz’ definition of what is a right, collective rights are founded on the idea that the collection of the individual interests of group’s members is sufficient to justify the imposition of the duties correlated to a right on another subject. Along these lines, the rights of minority groups sharing a common identity are morally comparable to those of groups that only share a contingent interest. One of the differences between the two groups could be that the interests vested in a minority group might not easily exist if vested on a single minority member. At 86 ff., Jones presents another conception of group rights, the so-called “corporate conception”, where the moral justification for collective rights does not lie on the individual members’ interests, but on the group as such, so that “the holder of the right is the group conceived as a single, integral entity”. According to this conception, the identity of a group becomes crucial and precedes the existence of corporate rights. In the view of Jones, corporate rights may not be limited by individual humanrights simply because they belong to two separate conceptions of rights (at 93). I personally do not agree with the conclusion that corporate right might represent a greater danger for the individual members of a group. In my view, members of a group would always retain their individual rights. The divide between corporate rights and individual rights is artificial, because the issue of identity-sharing is not simply based on nationhood and pre-defined ethnical characteristics. Identity is a complex notion that may encompass a variety of significances even in a corporate conception of group rights. See also, Brownlie, ‘The Rights of Peoples in Modern International Law’ 1988, at 15-16, where the author claims that group rights should be treated as a unitary issue without differentiating between peoples, indigenous peoples and minorities.
Although disciplinary measures are not sufficient to remedy serious violations of international humanitarianlaw, they are necessary and useful inasmuch as they enable the leaders of a group to react in a timely way to violations. These measures can take various forms, such as a note to file, a warning, demotion or dismissal. They can also involve the assignment of extra duty or the withdrawal of the soldier’s weapons or uniform. In practice, they sometimes also include imprisonment and corporal punishment, including capital punishment. All these measures should naturally be taken in conformity with humanrights standards. 17 Disciplinary measures focus on the status of the person concerned within the group hierarchy and can thus have a significant deterrent effect. They are the concrete expression of the reaction by the group’s hierarchy and signal to other group members that prohibited conduct will not be tolerated, thus quite possibly preventing further violations from being committed in the future. Disciplinary measures are also very often the only means of sanctioning violations while a conflict is under way, since criminal prosecution requires more time and more resources. If such disciplinary action is to be effective and is to prevent further violations it must be severe enough and must be made public 2 two conditions that are sometimes difficult to fulfil and to reconcile in actual practice. 18 Simple rules laid down in writing and stating from the outset the penalty to be paid in the event of violation help to make the hierarchy’s response predictable, with a view to
posed by convergence to actual military practice during armedconflict, referenc- ing in particular the dilemmas faced by coalition forces that may have different in- terpretations of the applicability of humanrightslaw (as was the case in Iraq), as well as the means by which the military would be asked to make humanrights– based decisions, few present a coherent theory of how their ideas can be realized. My sense is that this derives from two underlying problems with the current debate. First, due to the sense that those arguing for convergence are clearly on the “right” side of the debate and that they are obviously making arguments for more human- ity and more protection, there is little pressure for those making convergence argu- ments to normatively justify their positions and ground these normative claims in an understanding of how convergence will actually improve the status of civilians caught up in armedconflict. The operating assumption of pro-convergence schol- arship is that more humanrights obligations on the battlefield will mean more humanrights enjoyment for the affected population. Second, the ubiquitous claim that the main legal battle has been won, that with the three key ICJ decisions (the Nuclear Weapons and Wall advisory opinions and the Congo decision) interna- tional law today simply demands convergence, makes it easier to avoid the hard cases of how these vague opinions can be translated into operational guidelines for soldiers. 49
I . I N T R O D U C T I O N
It is a fact of life that armedconflict—the resort to organized force between States or within States— is, and always has been, an integral part of the human condition. Disregarding such indicia as the du- ration or intensity of the fighting, the number of casualties incurred or whether hostilities are active or ‘frozen’, there are currently some 50 situations in the world where there is either an actual armedconflict or a degree of tension so heightened that there is a real risk of resort to force. Given this state of affairs, coupled with the increase in humanitarian activism, the so-called ‘CNN effect’ of constant televised reporting from conflict zones, and enhanced mechanisms for securing the international le- gal liability of both governments (under the doctrine of State responsibility) and individuals (under the doctrine of individual criminal responsibility), it is unsurprising that international humanitarianlaw (IHL) has re-emerged from the shadows of public international law during the last three decades. The well-known aphorism, ‘If international law is in some ways at the vanishing point of law, the law of war is, perhaps even more conspicuously, at the vanishing point of international law’ (Lauter- pacht, 1952, p 382), may have been accurate enough 60 years ago, but it is certainly no longer so to- day. Although the First Gulf War (1991) was the first modern armedconflict of which it could be said that, ‘[d]ecisions were impacted by legal considerations at every level, [the law] proved invalua- ble in the decision-making process’, 1 the law of war—now more commonly referred to as IHL or,
If we look at the principles of distinction, proportionality and precautions under international humanitarianlaw as guidance for when an attack is con- sidered permissible, we see a lot of judgement framed in terms that to a computer scientist seem imprecise. One might argue that the vagueness in these terms is by design: it allows for nuance and context as well as human expert judgement to play in a role in a decision, much like how the discre- tion of a judge plays a role in judging the severity of a sentence. Another view of this ‘vagueness by design’ is that it allows for future contestability: if commanders are forced to defend a decision later on, they can do so by appealing to their own experience and judgement in interpreting a situation. . . . But what of algorithm-driven targeting? How is a system supposed to learn what targets satisfy principles of proportionality, distinction and pre- caution when to do so it must rely on a precise labeling that almost cannot exist by design. 38
Contemporary wars and conflicts have been complex in nature. The focus on the study of nature and consequences of conflicts was put forward by the United Nations Organization which brought out a twist in the analysis of conflicts. It is true that every international community has some or the other interest in every conflict, may be because no conflict these days are in isolation. In such situation the role of United Nation becomes very important to make sure every party is satisfied with decisions when it comes to war. To look after the conduct of the parties during a conflict, International organizations have developed certain laws which guarantee human safety to a large extend. One such law is International HumanitarianLaw or the Law of ArmedConflict; basically it regulates the conduct of armed conflicts. Its basic constituent is the Geneva conventions followed by subsequent treaties, case law and customary international law . It also deals with the responsibilities of the parties involved which may include neutral nations and individuals in warfare. Its violations are known as war crime for those nations who are bound by appropriate treaties. There are also other customary unwritten rules of war as well as prohibitions on their conduct when dealing with irregular forces and non-signatories. International humanitarianlaw operates on a strict division between rules applicable in international armedconflict and those relevant to armed conflicts not of an international nature.
14. De La Cruz-Flores v. Peru, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 115 (Nov. 18, 2004).
15. Court of Justice of Colombia, Criminal Cassation Chamber, Case No. 27227, May 21, 2009, p. 3.
16. U.N. HumanRights Council, Report of the independent international committee of inquiry on the Syrian Arab Republic, U.N. doc. A/HRC/25/65, Feb. 12, 2014, para. 111 (“Medical staff suspected of treating or providing medical supplies to the opposition were detained and tortured, as in the case of Dr. Abbas Khan, who died in government detention on 17 December.”) and Annex VII, “Assaults on Medical Care,” para. 21 (concluding that “[a]nti-terrorism laws issued on 2 July 2012 effectively criminalised medical aid to the opposition. Laws 19, 20 and 21 contravene the customary international humanitarianlaw rule that under no circumstances shall any person be punished for carrying out medical activities compatible with medical ethics, regardless of the person benefiting therefrom.”); Aryn Baker, “Syria’s Health Crisis Spirals As Doctors Flee,” Time Blog, February 4, 2014, available at https://time.com/3968/syrias-health-crisis-spirals-as-doctors-flee/ [ https://perma.cc/D3JW-98ZD] (reporting that, “In July 2012, the Syrian government passed an anti-terrorism law that effectively made it a crime to provide medical care to anyone suspected of supporting the rebels. Ahmed was caught between the Hippocratic oath—a doctor’s promise to treat every patient—and the growing pressure to take sides. “The regime said ‘Why are you helping the Free Army?’ and the Free Army said ‘Why are you helping the regime?’”).