Abstract
This essay provides a commentary on the ongoing discussion of the relationship between the two legal regimes and attendant paradigms of hostilities and law enforcement in armed conflict. The discussion has, to an extent, taken the form of a disconnect between the IHL and IHRL communities. In order to get past this, a plea is made here to apply basic well established tools of legal methodology, to apply both regimes within their respective scope of application and to utilise common sense in determining which regime is the most relevant to a particular situation. This is in the interest of legal coherence and maintaining respect for the law, as well as in the interest of the persons the law is meant to protect.
T.D. Gill is Professor of Military Law at the University of Amsterdam and the Netherlands Defence Academy. This contribution has been published in the Liber Amicorum for Dr. Leo Zwaak, Y. Haek et al. (eds.) The Realisation of Human Rights: When Theory Meets Practice, Intersentia Publishers (2014) and is reproduced here with the kind permission of the editors. It formed the basis of the author’s comments as a keynote speaker at the ‘Boundaries of the Battlefield’ symposium in January 2013, which are reproduced here in slightly more comprehensive form. All websites were last accessed 10/05/2013.
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Notes
- 1.
Various decisions by the ICJ, by human rights tribunals and bodies, and academic publications have dealt with this relationship. See, inter alia, ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion (1996) ICJ Rep 226, para 25; ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories, Advisory Opinion (2004) ICJ Rep 136, para 102 et seq.; ICJ, Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment (2005) ICJ Rep 168, pp. 242–245, paras 216–221; HRC 2004 General Comment No. 31; Droege 2007; Hampson 2008; Kleffner 2011; Sassòli and Olson 2008; Doswald-Beck 2011.
- 2.
See, e.g., Kleffner 2011, pp. 51–52.
- 3.
Ibid, pp. 65–66.
- 4.
The material threshold for armed conflict was authoritatively stated in the decision of the Appeals Chamber in ICTY, Prosecutor v. Dusko Tadić, Decision on Defence Motion for Interlocutory Appeal on Jurisdiction, Appeals Chamber (IT-94-I-AR72), 2 October 1995, para 70. For the applicability of IHL in geographical terms see, e.g., Greenwood 2008, pp. 59–62.
- 5.
Kleffner 2011, pp. 68–69 and accompanying notes.
- 6.
The ‘separationist’ approach of the US and Israel, whereby IHRL is considered either inapplicable to armed conflict or is presumed to be consistently overridden by IHL, is referred to by, inter alia, Hampson 2008, p. 559. The ‘humanisation ’or ‘pacification’ of IHL approach is epitomised by, inter alia, Schabas 2007; Doswald-Beck 2011, pp. 112–113, where she refers to ‘an IHL mentality, which tends towards a lex specialis approach that in effect marginalizes human rights law’. The mainstream approach, which sees the two bodies of law as essentially complementary, whereby lex specialis is a means of resolving conflicts between conflicting norms when these occur, is expressed, inter alia, in the decisions of the ICJ referred to in supra n 1, as well as by various authors, e.g., Droege 2007, p. 312 et seq.; Kleffner 2011, pp. 72–75; Melzer 2011, pp. 43–44.
- 7.
Legality of the Threat or Use of Nuclear Weapons, supra n 1.
- 8.
In addition to the sources advocating either a ‘separationist’ or a ‘humanisation’ approach cited in supra n 6, see, e.g., Milanović 2010. Milanović argues that lex specialis and other methods of interpretation are of limited value in resolving the normative relationship between IHL and IHRL, and further sees the purpose of the latter body of law as further humanising IHL both by applying IHRL in a way to not only fill gaps left open by IHL, but to ‘change some outcomes that are in fact determined by IHL by introducing human rights rules and arguments into the equation’. Needless to say, I disagree with both contentions and positions on the basis of the arguments set out in this essay.
- 9.
This maxim is a tool of interpretation which can be summarised as follows: ‘such an interpretation is to be adopted that the measure may take effect rather than fail’. See: US Legal Definitions, available at: www.definitions.uslegal.com/i/interpretatio-fienda-est-ut-res-magis-valeat-quam-pereat/.
- 10.
See Melzer 2011 for detailed treatment of the two (legal) paradigms.
- 11.
On the differing approaches to the question of effective control and extraterritorial applicability of human rights in general between the European and Inter-American human rights systems, and in some cases between decisions of the same human rights body, see Kleffner 2011, pp. 70–71, and accompanying notes.
- 12.
The example of the rebel commander visiting his family in government-controlled territory figured repeatedly in the discussions of the Expert Group, which was tasked to attempt to clarify the notion of ‘Direct Participation in Hostilities’ by the ICRC between 2003 and 2008. The resulting ‘Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law’, issued independently by the ICRC outside the Expert Group in 2009, relied upon a concept of ‘restrictive military necessity’ rather than, but without prejudice to, human rights law, to apply to such situations. This has caused a significant degree of controversy, but since the mandate of the ICRC and the Expert Group was to clarify the notion of ‘direct participation in hostilities’ from within IHL, rather than enter into an examination of the parallel application of IHL and IHRL and the relationship between the two bodies of law, this controversy does not directly relate to whether, when and why IHRL would apply in such a situation. As a member of the ‘Expert Group’, I took part in the discussions and experienced first-hand what I saw then and see now as a needless competition and jockeying for precedence between (some) IHL and IHRL lawyers. I have experienced the same phenomenon on various occasions since then at other conferences, which is what brought me to consider writing this plea for a more ‘common sense approach’.
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Gill, T.D. (2015). Some Thoughts on the Relationship Between International Humanitarian Law and International Human Rights Law: A Plea for Mutual Respect and a Common-Sense Approach. In: Gill, T., Geiß, R., Heinsch, R., McCormack, T., Paulussen, C., Dorsey, J. (eds) Yearbook of International Humanitarian Law 2013. Yearbook of International Humanitarian Law, vol 16. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-038-1_9
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