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Application of IHRL in Times of Armed Conflict and the Interrelationship with IHL

Is IHRL applicable in times of armed conflict?

Legal and jurisprudential developments over the past decade have clearly confirmed the concurrent application of IHL and IHRL in times of armed conflict. This has been firmly established by the International Court of Justice (ICJ) in several cases and by international and regional human rights monitoring bodies, including the UN Human Rights Committee, the European Court of Human Rights, and the Inter-American Court of Human Rights.5 In addition, many states and international organizations have expressed the same view. Until recently there were doubts regarding the US position, but the USA confirmed during the UN Human Rights [1]

Committee’s examination in 2014 that IHRL continues to be applicable in armed conflict:

With respect to the application of the Covenant [the ICCPR] and the international law of armed conflict (also referred to as international humanitarian law or ‘IHL’), the United States has not taken the position that the Covenant does not apply ‘in time of war’. Indeed, a time of war does not suspend the operation of the Covenant to matters within its scope of application.[2]

This position was reiterated by the USA with regard to the UN Torture Convention (UN CAT) during the UN Torture Committee’s examination of the USA in December 2014. In its Concluding Observations, the committee welcomed

the firm and principled position adopted by the State party with regard to the applicability of the Convention [UN CAT] during armed conflict, and its statement that a time of war does not suspend the operation of the Convention, which continues to apply even when the State is engaged in an armed conflict.[3]

International organs like the UN Security Council have also repeatedly stated that human rights apply during armed conflict. This was particularly highlighted in a number of resolutions on the protection of civilians during armed conflict, where the Council ‘[d]emand[ed] that parties to armed conflict comply strictly with the obligations applicable to them under international humanitarian law, human rights and refugee law’.[4] Similarly, the Security Council stressed in 2014 in relation to the armed conflict in Syria that ‘All parties to the conflict, in particular the Syrian authorities, must comply with their obligations under international humanitarian law and international human rights law.’[5]

The UN Human Rights Council (UN HRC) has also in a number of resolutions dealt with IHRL and IHL as complementary, stressing that ‘human rights law and international humanitarian law are complementary and mutually reinforcing’.[6] [7]

Finally, over roughly the past decade, international organizations such as the UN, EU, and OSCE have established a large number of commissions of inquiry with the mandate to investigate possible violations of IHL and IHRL in times of armed conflict. The UN HRC decided in late August 2011 to establish an international commission of inquiry on Syria to ‘investigate all alleged violations of international human rights law since March 2011 in the Syrian Arab Republic’.n There is evidently an ongoing non-international armed conflict in Syria—a conflict that can be said to have started in spring and summer 2011 with unrest and widespread fighting—and it is remarkable that the UN HRC did not mention in the resolution that violations of IHL should be investigated. In 2014, the UN HRC decided to set up a commission of inquiry to investigate the war between Israel and Gaza. The UN HRC stated that the Commission of Inquiry shall ‘investigate all violations of international humanitarian law and international human rights law’.0

In conclusion, there is overwhelming evidence that IHRL is applicable in times of armed conflict. The question is rather: in the event of conflicting norms between IHL and IHRL, which standards prevail? The problem is, as mentioned in section 1, that the protection of individuals is often much stronger and more far- reaching in IHRL than in IHL. An illustration of this is the protection of life. While IHRL generally requires that states only use lethal force against individuals as a last resort,[8] [9] [10] [11] IHL generally authorizes states to use lethal force as a first resort against enemy combatants and civilians taking direct part in hostilities. Hence, a soldier killing an individual during armed hostilities might be legal if assessed pursuant to IHL, but illegal if assessed according to IHRL. Therefore, it is of crucial importance to resolve the issue of how the two bodies of law should interact.

  • [1] See section 2.2 of this chapter for the references.
  • [2] ‘Fourth Periodic Report of the US to the UN Human Rights Committee concerning the ICCPR’(30 Dec. 2011), paras 506 and 507.
  • [3] UN CAT, ‘Concluding Observations on the Combined Third to Fifth Periodic Reports of theUnited States of America’ (19 Dec. 2014), para. 6.
  • [4] UN Security Council, Resolution 1894, 11 Sept. 2009. Likewise see: Resolution 1674 (2006),S/Res/1674 (2006), 28 Apr. 2006, para. 26 and Resolution 1738 (2006), S/Res/1738 (2006), 23 Dec.2006, para. 9.
  • [5] UN Security Council, Resolution 2165, 14 July 2014, op. para. 1.
  • [6] UN Human Rights Commission, Protection of the Human Rights of Civilians in ArmedConflict, E/CN.4/2005/L.82, 15 Apr. 2005.
  • [7] Independent International Commission of Inquiry on The Syrian Arab Republic, UNHCR,2015, .
  • [8] ‘Council President appoints Members of Commission of Inquiry under HRC resolution S-21/1’,UNHCR, Aug. 2014, .
  • [9] More specifically, it must be absolutely necessary to use lethal force in order to protect otherindividuals against an imminent threat to life and that other less intrusive powers, e.g. arrest or warning shots, are perceived to be inefficient in the situation; see e.g.: Art. 2 in the ICCPR and the ECHR.
  • [10] ICJ, ‘Legality of the Threat or Use of Nuclear Weapons in Armed Conflict’ (8 July 1996), para.25; and ‘Case Concerning Armed Activities on the Territory of the Congo’ (19 Dec. 2005), para. 220.
  • [11] ICJ, ‘Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory’(9 June 2004), para. 106.
 
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