HUMAN RIGHTS LAW AND
ARMED CONFLICT
Dr Marko Milanovic, University of Nottingham
June 2013
Generally
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No one thought-through how IHL and IHRL would
interact when the treaties were drafted; minimal
and contradictory drafting history; derogation
clauses
Fragmentation of PIL
Connection to the question of extraterritorial
application of HR treaties: flexibility, clarity
Derogation – Art. 4 ICCPR
In time of public emergency which threatens the life of the nation and the existence
of which is officially proclaimed, the States Parties to the present Covenant may
take measures derogating from their obligations under the present Covenant to the
extent strictly required by the exigencies of the situation, provided that such
measures are not inconsistent with their other obligations under international law
and do not involve discrimination solely on the ground of race, colour, sex,
language, religion or social origin.
No derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may
be made under this provision.
Any State Party to the present Covenant availing itself of the right of derogation
shall immediately inform the other States Parties to the present Covenant, through
the intermediary of the Secretary-General of the United Nations, of the provisions
from which it has derogated and of the reasons by which it was actuated. A further
communication shall be made, through the same intermediary, on the date on which
it terminates such derogation.
Derogation – Art. 15 ECHR
In time of war or other public emergency threatening the life of the nation
any High Contracting Party may take measures derogating from its
obligations under this Convention to the extent strictly required by the
exigencies of the situation, provided that such measures are not inconsistent
with its other obligations under international law.
No derogation from Article 2, except in respect of deaths resulting from
lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made
under this provision.
Any High Contracting Party availing itself of this right of derogation shall
keep the Secretary General of the Council of Europe fully informed of the
measures which it has taken and the reasons therefor. It shall also inform the
Secretary General of the Council of Europe when such measures have
ceased to operate and the provisions of the Convention are again being
fully executed.
Extraterritorial derogation?
Bankovic, para. 62:
Although there have been a number of military missions involving Contracting
States acting extra-territorially since their ratification of the Convention (inter alia,
in the Gulf, in Bosnia and Herzegovina and in the FRY), no State has indicated a
belief that its extra-territorial actions involved an exercise of jurisdiction within the
meaning of Article 1 of the Convention by making a derogation pursuant to
Article 15 of the Convention. …the Court does not find any basis upon which to
accept the applicants’ suggestion that article15 covers all ‘war’ and ‘public
emergency’ situations generally, whether obtaining inside or outside the territory
of the contracting state.
 Al-Jedda UKHL, para. 38 (per Lord Bingham):
It is hard to think that these conditions [for a lawful derogation] could ever be met
when a state had chosen to conduct an overseas peacekeeping operation,
however dangerous the conditions, from which it could withdraw. The Secretary of
State does not contend that the UK could exercise its power to derogate in Iraq
(although he does not accept that it could not). It has not been the practice of
states to derogate in such situations, and since subsequent practice in the
application of a treaty may (under article 31(3)(b) of the Vienna Convention) be
taken into account in interpreting the treaty it seems proper to regard article 15
as inapplicable.
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IHL and IHRL
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In classical international law, strict division between the
law of war and the law of peace; not so today
States have affirmed the parallel application of IHL
and IHRL in numerous official statements, and not the
least in the derogation clauses of HR treaties
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How to describe the relationship?
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Fragmentation of international law ILC study
Lex specialis?
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ICJ, Nuclear Weapons, para. 25:
In principle, the right not arbitrarily to be deprived of
one’s life applies also in hostilities. The test of what is an
arbitrary deprivation of life, however, then falls to be
determined by the applicable lex specialis, namely, the
law applicable in armed conflict which is designed to
regulate the conduct of hostilities. Thus whether a
particular loss of life, through the use of a certain
weapon in warfare, is to be considered an arbitrary
deprivation of life contrary to Article 6 of the
Covenant, can only be decided by reference to the law
applicable in armed conflict and not deduced from the
terms of the Covenant itself.
Two complementary regimes?
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ICJ, Wall, para. 106:
More generally, the Court considers that the protection offered by human
rights conventions does not cease in case of armed conflict, save through the
effect of provisions for derogation of the kind to be found in Article 4 of
the International Covenant on Civil and Political Rights. As regards the
relationship between international humanitarian law and human rights law,
there are thus three possible situations: some rights may be exclusively
matters of international humanitarian law; others may be exclusively
matters of human rights law; yet others may be matters of both these
branches of international law. In order to answer the question put to it, the
Court will have to take into consideration both these branches of
international law, namely human rights law and, as lex specialis,
international humanitarian law.
HRC, GenComm 31, the two ‘spheres of law are complementary, not
mutually exclusive’
A relationship between norms, NOT
between regimes
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The complementarity thesis only an answer to the
equally broad counter-claim that the two bodies of law
are mutually exclusive
Interaction between norms and norm conflict
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Killing, detention
Norm conflict resolution
Jus cogens
 Conflict clauses – derogation
 Art. 103 of the UN Charter
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Norm conflict avoidance
Unresolvable norm conflict – Al-Saadoon
So what about lex specialis?
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Art. 6(1) ICCPR
Every human being has the inherent right to life. This right shall be protected by law.
No one shall be arbitrarily deprived of his life.
Art. 2 ECHR
Everyone’s right to life shall be protected by law. No one shall be deprived of his
life intentionally save in the execution of a sentence of a court following his
conviction of a crime for which this penalty is provided by law.
Deprivation of life shall not be regarded as inflicted in contravention of this article
when it results from the use of force which is no more than absolutely necessary:
a in defence of any person from unlawful violence;
b in order to effect a lawful arrest or to prevent the escape of a person lawfully
detained;
c in action lawfully taken for the purpose of quelling a riot or insurrection.
Possible areas of unresolvable conflict
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Killing – Israeli SC Targeted Killing case
Preventive detention and judicial review of
detention
Transformative occupation, Article 43 of the Hague
Regulations and Article 64 GC IV