The Problems of Interaction of International Human Rights Law and International Humanitarian Law during Armed Conflicts

Zverev Petr Gennad'evich PhD in Law deputy chief of the chair of international police cooperation and combatting crime via Interpol channels of the Peacekeeping training centre of the All-russian advanced training institute of the Ministry of the Interior of the Russian Federation 142007, Russia, Moskovskaya oblast', g. Domodedovo, ul. Pikhtovaya, 3 drpete@yandex.ru Other publications by this author

The starting point of our study is the assertion that international humanitarian law and international human rights law are substantive branches of modern international law. They aim, albeit in different ways, the protection of human life, health and dignity. It is not surprising therefore that, despite the difference in language, some of their provisions are close or even coincide in meaning. For example, the norms of both branches of international law protect human life, prohibit tortures, inhuman treatment and discrimination, secure fundamental rights for individuals against whom criminal proceedings are conducted, include provisions relating to the protection of women and children, and address issues related to the right to adequate food and medical care. However, international humanitarian law covers fields, which drop out of sight of international human rights law (conduct of hostilities, status of combatants and prisoners of war ^[1], protection of the emblems of the Red Cross and Red Crescent), while the latter deals with such aspects of life in peacetime, to which the former does not apply at all (freedom of the press, rights to assembly, to participate in the vote and strike). At the same time some Russian scholars believe that international humanitarian law exclusively regulates the protection of human rights ^{[2, С. 434]}. Scientific works hold different points of view on this question. The supporters of the existence of international humanitarian law argue that human rights law applies only in peacetime while humanitarian law is the only set of rules applicable in armed conflicts ^{[3, p. 393]}. Those researchers, who say the existence of an independent branch of international human rights law, consider that it applies both in peacetime and in wartime ^{[4, С. 10-19]}. Historically, the principles and norms relating to the protection of human rights in general were developed and adopted in both domestic (national) and international law for a long time. Based on the cumulative synthesis of past experience in the modern period, special acts containing provisions regarding the laws and customs of war were adopted. The most significant of these are four codified Geneva Conventions for the protection of war victims of 1949 and Additional Protocols of 1977 relating to the protection of victims of international and non-international armed conflicts ^[5]. Unlike international humanitarian law provisions, the principles and standards of human rights law emerged mainly in the 20th century. Initially the rules on the protection of human rights were taken at the national level, and then began to be reflected in international legal acts as well ^{[6, С. 36-58]}. In the period preceding the establishment of the United Nations, a limited number of States have concluded international agreements, which in varying degree, regulated certain aspects of the protection of human rights. These include the conventions containing provisions on the struggle against slavery and the slave trade, on the suppression of trafficking in women and children, for the protection of national minorities. Only after the Second World War, through the efforts of the UN Commission on human rights, a new stage of regulation of fundamental human rights and freedoms began, which was accompanied by the development of the International Bill of Human Rights and the adoption of numerous international instruments in this field. Since the rules of international humanitarian law have, as one of their objects of regulation, the protection of human rights during armed conflict, and the provisions of international human rights law aim to protect human rights in general, it is necessary to delineate the limits of these branches of international law for the effective protection of human rights in any conditions. The rules governing human rights in time of peace have several characteristic features that distinguish them from the norms of international humanitarian law. These include the following: - relatively recent consolidation in international law; - creation of conventional (treaty) control bodies; - the establishment of a control mechanism by all UN Member States, not only by those that have ratified certain treaties. These differences, according to some Russian scientists, suggest that there are currently two branches of international law: international humanitarian law and international human rights law ^{[7, С. 532, 449-480, 532-559; 8, С. 260-261, 442-463; 9, С. 270-311, 800-818]}. In Russian and foreign literature on international law there are different points of view regarding the existence of the mentioned branches of law. For instance, Professor Gregory Tunkin claimed in the 1970-ies that “a new branch of international law arises and it defines the obligation of States to ensure to all people, regardless of race, language, religion and gender their fundamental rights and freedoms” ^{[10, С. 93]}. His statement was later confirmed in the textbook under his edition ^{[11, С. 232]}. Bulgarian Professor Petr Radoinow believed that after the adoption of the Universal Declaration of Human Rights, which proclaimed a number of humanitarian principles, one should talk about the existence of a special branch of international law – international humanitarian law ^{[12, p. 98]}. In this context it should be noted that usually legal literature recognizes humanitarian law as a number of norms, relating to the legal status of certain categories of persons during armed conflicts and regulating the laws and customs of war. Professor Jean Pictet, the former Vice-President of the International Committee of the Red Cross, expressed the opinion, shared by some scholars, about the existence of international humanitarian law, which consists of a system of rules regulating the laws and customs of war and human rights ^{[13, p. 43]}. Professor Igor Blishchenko, sharing the abovementioned opinion of Pictet, considered the proposed system of international humanitarian law as persuasive. At the same time, he refers to international humanitarian law as not only a system of rules regulating the laws and customs of war and the protection of human rights, but also norms aimed at limiting the arms race and disarmament ^{[14, С. 76]}. On the issue of the structure of human rights law an approach of Professor Vladimir Kartashkin seems interesting. He proposes to divide all international agreements in the field of human rights into three groups ^{[15, С. 3]}. The first group includes such international instruments as the Universal Declaration of Human Rights, the International Covenants on Human Rights and others, which contain principles and standards relating to human rights mainly in the peacetime. The second group consists of international conventions for the protection of human rights in the time of armed conflict. These include primarily certain provisions of the Hague Conventions of 1899 and 1907 concerning the laws and customs of war, as well as the four Geneva Conventions of 1949 on protection of war victims and their Additional Protocols, adopted in 1977. The third group is composed of the international documents which regulate the liability for criminal violation of human rights in the peacetime and in the time of armed conflict. This group includes the Nuremberg Charter and judgments of the International military tribunals in Nuremberg and Tokyo, the Convention on the prevention and punishment of the crime of genocide, the Convention on the non-applicability of statutory limitations to war crimes and crimes against humanity, the Convention on the suppression and punishment of the crime of apartheid and the Statute of the International Criminal Court of 1998. Thus, according to the mentioned concept, human rights law as a branch of modern international law is a set of principles and rules enshrined in all three previously listed groups of international instruments. All of these principles and rules must be respected in times of peace and during armed conflict. Some of them may be suspended by States during war or other public emergency. At the same time, a number of fundamental rights and freedoms must be respected by every State regardless of the situation or its status. In our opinion, international humanitarian law applies only in the event of armed conflict. It must be emphasized that the application of international humanitarian law is determined only by the availability of objective conditions and depends on how the warring parties qualify the situation themselves. In case of armed conflict between two or more States, such conflict is qualified as international, even when the warring parties do not recognize the state of war. During the international armed conflict the four Geneva Conventions and the Additional Protocol I are applied. For example, Article 2, common to the four Geneva Conventions, provides explicitly for the application of Conventions in all cases of occupation of the territory, and paragraphs 3 and 4 of Article 1 of the Additional Protocol I include the national liberation wars into the category of international conflicts. In case of armed conflict of non-international character, which has attained a certain degree of intensity, the Additional Protocol II and Article 3, common to the four Geneva Conventions of 1949, apply and they contain quite detailed standards. Armed conflicts of this type are conflicts, taking place “in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol” (Art. 1 of the Additional Protocol II). If the conflict does not reach this degree of intensity, but, nevertheless, is the internal armed conflict, only Article 3, common to the four Geneva Conventions of 1949, is applied and it provides for minimum rules applicable in the event of armed conflict. To determine whether such a conflict exists, it is necessary that the clashes occurring within the State between different groups, which have resorted to armed struggle, were of collective nature and varied by minimal organization ^{[16, p. 200]}. Article 3, common to the four Geneva Conventions, provides: - firstly, a humane treatment of persons not participating in hostilities, which means the prohibition of: 1) violence to life and person, in particular murder and torture; 2) taking of hostages; 3) outrages upon personal dignity, in particular humiliating and degrading treatment; 4) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees; - secondly, an assistance to the wounded. Since international humanitarian law by its nature is intended to be applied in situations of armed conflict, it does not contain a general clause on the possibility of derogation from certain rights which would be used in the event of war. Human rights apply, in principle, at any time, i.e. both in peacetime and during war. Most of the international treaties on human rights include provisions that enable States to take measures derogating from their obligations in respect of certain rights in emergency situations, such as during war or other public emergency threatening the life of the nation (for example, Art. 4(1) of the International Covenant on Civil and Political Rights of 1966, or Art. 15 of the European Convention on Human Rights of 1950). Therefore, the application of many human rights is possible only outside of such emergencies. However, certain human rights cannot be derogated from under any circumstances. Their application can never be suspended. These rights form, according to the witty remark of Pierre Apraksin, “the unchanged core” of human rights ^{[17, С. 26]} and include the right to life, prohibition of torture and inhuman or degrading treatment or punishment, prohibition of slavery, the principles of nullum crimen sine lege and nulla poena sine lege, as well as the principle of the prohibition of giving any criminal law retroactive effect. Thus, Article 4 of the International Covenant on Civil and Political rights, adopted on 16th December of 1966, excludes the possibility of any derogation, even in time of public emergency in the State which threatens the life of the nation, from its obligations in respect of the right to life (Art. 6), prohibition of torture, inhuman treatment or punishment (Art. 7), prohibition on slavery and holding in servitude (Art. 8), prohibition of imprisonment on the ground of failure to fulfill a contractual obligation (Art. 11), the principles of nullum crimen sine lege and nulla poena sine lege, the principle of the prohibition of giving criminal laws retroactive effect (Art. 15), right to recognition as a person before the law (Art. 16), right to freedom of thought, conscience and religion (Art. 18). Article 15 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4th November 1950 excludes the possibility of any derogation, even in time of war or other public emergency, threatening the life of the nation, from its obligations in respect of the right to life, except for the deprivation of life as a result of lawful military action (Art. 2), prohibition of torture, inhuman or degrading treatment or punishment (Art. 3), prohibition of slavery and servitude (Art. 4), principles of nullum crimen sine lege and nulla poena sine lege, the principle of the prohibition of giving criminal laws retroactive effect (Art. 7). The “unchanged core” of human rights (obligations from which derogation is not allowed under any circumstances) does not include a number of rules of international humanitarian law which, therefore, will be applied even in some situations of public emergency and the occurrence of which can serve itself as a basis for derogation from these obligations on human rights, for example, during the war. In particular it is about the obligation to provide protection and assistance to the wounded, the restrictions on the use of force by security agencies and law enforcement bodies as well as judicial guarantees. In this context, it is reasonably to mention one difficulty: there are situations of disorders and tension within the country, which from the point of view of human rights can be qualified as extraordinary and may serve as a basis for suspension of certain human rights. At the same time, from the standpoint of international humanitarian law, these situations are not armed conflicts within the meaning of the Additional Protocol II and Article 3, common to the four Geneva Conventions. Therefore, in such cases human rights can be reduced to their “unchanged core”, while the guarantees provided by international humanitarian law will not be applied. It should be noted that human rights apply to all individuals. Thus, the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 provides for the obligation of States to ensure the protection of all persons under their jurisdiction (Art. 1). Apparently international humanitarian law has a more narrow scope of application ratione personae that predetermines the need for more detailed consideration. Most of the rules applicable in international armed conflict apply only to “protected persons”, and this category does not include persons under jurisdiction of the State of their nationality (Art. 13, 13, 4 and 4 of the four Geneva Conventions respectively). However, the rules applicable in internal armed conflict impose additional obligations on a State with respect to its own citizens ^{[18, p. 119; 19, p. 31; 20, p. 6]}. In addition, it should be recalled that the obligation to provide protection and assistance to the wounded, sick and shipwrecked covers all these persons, regardless of which side they belong to (Art. 10 of the Additional Protocol I). Finally, a particularly important “fundamental guarantees” of Article 75 of the Additional Protocol I include all persons affected by international armed conflict and who do not benefit from more favorable treatment under the Geneva Conventions and the Additional Protocol I, including persons under the jurisdiction of the State, whose nationals they are ^{[21, p. 31]}. It should also be noted that traditionally human rights law provides guarantees for the protection of human rights from illegal actions of the official authorities and State officials. With some exceptions, human rights law does not protect human from the actions of other human beings. A slightly different approach is adopted in international humanitarian law. Suffice it to say that some rules of this branch of law are specifically provided for situations of internal armed conflict and set commitments to ensure the rights of persons not only by the official authorities, including the State security bodies, but also by anti-government forces opposing them. Article 3, common to the Geneva Conventions of 1949, specifically prohibits the following acts against persons who take no active part in the hostilities: “a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; b) taking of hostages; c) outrages upon personal dignity, in particular humiliating and degrading treatment; d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples”. The International Covenant on Civil and Political Rights reaffirmed the principle of international law according to which certain fundamental rights and freedoms must be respected in any situation, including times of armed conflict. Under the Article 4(1) of the Covenant “in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed”, the States “may take measures derogating from their obligations” only “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”. The State which use this “right of derogation” shall immediately inform the other States Parties to the Covenant through the intermediary of the UN Secretary-General of “the provisions from which it has derogated and of the reasons by which it was actuated” (Art. 4(3)). “Right of derogation” does not apply, under paragraph 2 of Article 4 of the International Covenant on Civil and Political Rights, to the following fundamental rights and freedoms: - the right to life (Art. 6); - the prohibition to subject a person to torture or to cruel, inhuman, degrading treatment or punishment (Art. 7); - the prohibition of slavery, slave trade and servitude (Art. 8); - the prohibition to imprison for failure to fulfill any contractual obligation (Art. 11); - the prohibition of the abolition of the principle under which the criminal law has no retroactive effect (Art. 15); - the right of everyone to freedom of thought, conscience and religion (Art. 18). In its “General Comment on Article 4 of the International Covenant on Civil and Political Rights”, the UN Human Rights Committee stated that during armed conflict, whether international or non-international, international humanitarian law rules become applicable, helping, in addition to the provisions of Article 4 and Article 5(1) of the Covenant, to prevent the abuse of emergency powers of the State. The Covenant requires that even during an armed conflict measures of derogating from its’ rules were allowed only in the case when the situation is threatening to the life of nation ^{[22, para.3]}. The duty of States to observe certain fundamental human rights in all situations, including periods of armed conflict, has been repeatedly confirmed in resolutions of the UN General Assembly. “Basic human rights, – as it is emphasizes, for example, in the resolution 2675 (XXV), – in the form in which they are recognized in international law and set forth in international instruments, continue to apply fully in situations of armed conflict” ^[23]. International humanitarian law is a part of a system of rules generally relating to human rights. The UN General Assembly and the Human Rights Council consider both general human rights issues and special ones, relating in particular to the protection of human rights in times of armed conflict. Human rights law as a branch of modern international law is a set of principles and rules governing the responsibility of States to ensure and respect the fundamental rights and freedoms, without any discrimination, in times of peace and armed conflict, as well as establishing responsibility for criminal violation of these rights. This definition is shared by many international lawyers ^{[24, С. 46; 25, С. 19]}. Human rights law takes a special place among other branches of international law due to the specific object and features of its’ method of legal regulation, close relationship with the domestic law, the value in the system of modern international relations and many other characteristics. A specific feature of the examined branch of law is the establishment and functioning of an international mechanism, supervising the implementation of the obligations taken by States under international agreements. Meanwhile a system of treaties in the field of human rights and formation of this branch of international law do not mean the completion of the process of its development. The branch in question is being enriched by an increasing number of different international legal instruments. Its development will continue to go mostly the way of concluding multilateral international agreements and strengthening control mechanism for monitoring States’ compliance with the obligations taken by them. In recent years the controversy surrounding the existence of two branches of international law in question continues. However, an increasing recognition takes the standpoint of complementarity and convergence of these two branches of international law ^[26]. Professor Rosemary Abi-Saab writes: “If humanitarian law and human rights law share the same goal, which is to protect the individual from threats to his person, both during armed conflict and in peacetime, it is not surprising that these two branches of international law should complement each other” ^{[27, p. 122-123]}. Hans-Joachim Heintze also notes that “the convergence of human rights and international humanitarian law is workable and useful” ^{[28, p. 813]}. A somewhat different view expressed Irina Ledyakh, arguing that after World War II a convergence of international humanitarian law with human rights happened. However, this “convergence”, in her opinion, leads to increased global nature of international humanitarian law as an independent branch of international law ^{[29, С. 373]}. The recognition of complementarity and actual convergence of international humanitarian law and human rights law was developed in the practice of international relations. The UN Commission of Human Rights (presently – the UN Human Rights Council) acknowledged that “human rights and international humanitarian law complement and reinforce each other. The protection provided by human rights law continues to apply in armed conflicts, taking into account those cases where international law applies as “lex specialis”. The Commission further emphasized that “conduct that violates international humanitarian law, can also represent a gross violation of human rights” ^[30]. By adopting resolution on 16th of December 2005, which contains “Basic principles and guidelines on the right to a remedy and reparation for victims of gross violations of international human rights and serious violations of international humanitarian law” ^[31], the UN General Assembly actually recognized the integration of these two branches of law. In this UN General Assembly resolution no significant differences between human rights law and international humanitarian law are made, as well as between principles concerning the right to a remedy and reparation, depending on the violations of certain agreements in this field. In order to determine the degree of convergence of the two branches of law, it is necessary to consider the applicability of human rights law and international humanitarian law in different circumstances ^[32]. The UN Security Council, General Assembly and Human Rights Council in their resolutions and decisions have repeatedly spoken about the need to respect during armed conflicts of both human rights law and international humanitarian law (see, for example, UN General Assembly Resolution 2444 (XXIII) of 19th December 1968 and UN Security Council Resolution S/RES/1952 (2005) of 30th March 2005). Thus, they confirmed the fact that both legal regimes may apply in the same situation. The International Court of Justice in its Advisory opinion on the legal consequences of the construction of a wall in the Occupied Palestinian territory stated that “the protection offered by human rights conventions does not cease in case of armed conflict. As regards to the relationship between international humanitarian law and standards in the field of human rights, there are 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 covered by both these branches of international law. The court will have take into consideration both these branches of international law, namely human rights law and, as lex specialis, international humanitarian law” ^{[33, para.106]}. From the context of this Court’s opinion a conclusion can be made that international human rights law applies in all situations, while international humanitarian law acts as a lex specialis. This conclusion is confirmed by the work of several treaty bodies on human rights. In 2001 the Human Rights Committee adopted a “General Comment № 29 (2001) on derogations during a public emergency” ^[34]. In this document the Committee specifically affirmed that the International Covenant on Civil and Political Rights applies as well in cases of international and internal armed conflicts, and the Human Rights Committee may consider any information about violations of human rights within its jurisdiction, even in situations of armed conflict. The UN Security Council, General Assembly and Human Rights Commission have repeatedly affirmed the legitimacy of the application of human rights law in the context of armed conflict. The same position is taken by the European court of human rights and the Inter-American court of human rights ^{[35, p. 749; 36]}. However, such approach was not shared by all States. For instance, the United States has repeatedly stated that different UN bodies have no right to apply human rights law in cases where certain issues are governed by international humanitarian law ^[37]. This position seems to be intended to narrow the application of legal norms in armed conflicts and thus to justify the violation of several fundamental rights and freedoms. The International Criminal Court Statute obviously justifies the approximation of human rights law and international humanitarian law. In accordance with Article 21(1b) (“Applicable law”), the Court shall apply “international treaties, principles and rules of international law, including the established principles of the international law of armed conflict”. The given wording clearly indicates that the Rome Statute considers international humanitarian law as part of human rights law. Moreover, according to the Statute the application and interpretation of law by the Court “must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender, […] age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status” (Art. 21(3)). It is typical that the jurisdiction of the International Criminal Court is not limited to war crimes. It also includes the crime of genocide, the crime of aggression (subject to finalization of its conventional definition) and crimes against humanity (apartheid, torture, enforced disappearance of persons, etc.). Therefore, its jurisdiction covers any of the offences under both human rights law and international humanitarian law. Likewise, the Tribunals for Rwanda and the former Yugoslavia have jurisdiction in respect of violations of international humanitarian law and human rights law. The analysis of international legal acts, UN documents and acts of regional organizations leads to the conclusion that human rights law applies in armed conflicts of both international and non-international character. Herewith a simultaneous application of international humanitarian law and human rights law allows protecting the basic rights and freedoms to the fullest extent. Thus, international humanitarian law and human rights law positively interact with each other. Apparently, the integration process will continue for a long time, during which the boundaries between these two branches of international law will be blurred and finally it will lead to the creation of a single (joint) branch of international law. So, it can be said that human rights law and international humanitarian law have slightly different areas of application. International humanitarian law applies only in the event of armed conflict and provides a number of guarantees, reflecting the specific characteristics of such conflicts. A significant number of human rights is unique in international humanitarian law. However, some individual human rights and certain rules of international humanitarian law are “crossing”. It is primarily concerned with the rights included in the “unchanged core” of human rights, the effect of which cannot be limited or suspended under any circumstances. The following conclusions can be summarized. Despite the different scopes of application, international humanitarian law and human rights law obviously complement each other. Individual rights under international humanitarian law strengthen some human rights: either because they meet human rights, the effect of which may be suspended in case of an emergency (for example, the judicial guarantees, which, as such, are not part of the “unchanged core” of human rights); or due to the fact that the rules of international humanitarian law go further in protecting the individual, than the corresponding human rights (for example, the right to life of persons protected by international humanitarian law).