As we reflect on Human Rights Month and the implications of conflict throughout 2015, we have asked some of the humanitarian law scholars who contributed to the new Geneva Conventions Commentary to explore the interplay between these two important legal disciplines, and how we should approach them in the future.
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Humanitarian Law and its greater scope for modern warfare
“The Roman philosopher Cicero famously said “Silent enim leges inter arma ” (In times of war the law falls silent). Today, armed conflict is intensely regulated by international law. Much of the modern law of armed conflict, otherwise known as International Humanitarian Law (IHL), is grounded in human rights principles. Even in war, there is a right to life (for non-combatants), a prohibition of methods and means of warfare that cause unnecessary suffering, a ban on arbitrary deprivation of liberty, a right to fair trial, a right to be treated humanely when detained, and prohibitions against discrimination. In addition to these civil and political rights, IHL contains many rules to protect civilian populations’ social, economic, and cultural rights, especially in situations of occupation. As is the case under human rights law, IHL calls for accountability for violators and remedies for their victims.
“In one sense, International Humanitarian Law provides even greater protection to individuals than human rights law. While human rights law only binds States, IHL imposes rights and responsibilities on all parties to armed conflict, be they States, non-State armed groups, or individuals. Of course, the daily reports coming out of contemporary armed conflicts paint a different picture; one of mass atrocities, especially against civilians, with no tangible accountability for perpetrators. The problem is then, not the lack of law, but rather, the lack of respect for, and enforcement of, existing law. The challenge of reducing the gap between law and compliance is magnified by the changing nature of war. The ratio of civilian to combatant casualties in war is steadily growing. Today, the vast majority of wars are not between States, but non-State armed groups, and civilians are more often than not the targets of hostilities, rather than “mere” collateral damage. The growth of ungoverned spaces exacerbates the problem of enforcement.
“The Geneva Conventions have been revised several times since their inception over one hundred and fifty years ago. Cynics have noted, with some accuracy, that each revision is designed to fight the last war, not the next one. But today’s Geneva Conventions and their Additional Protocols, if obeyed, are better suited to the protection of human rights in war than ever before. In addition, the majority of States that have opined on the matter also recognize the applicability of human rights law in war, notably as a safety net when and where IHL does not provide sufficient guidance. The challenge lies in mobilizing the political will necessary to enforce it.”
—Gabor Rona, Visiting Professor of Law at Cardozo Law School and co-author of “Chapter 10: The Principle of Non-Discrimination”
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Inadequate human rights at sea
“One area in which human rights law has been inadequately covered is in relation to rights at sea. There is considerable scope for focusing on human rights at sea, given the nature of modern conflict and the issues generated by the need to apply the rule of law at sea in all circumstances (including both during armed conflict and in those grey areas both preceding and following it).
“Coincidentally, a new non-governmental organization devoted to this subject (Human Rights at Sea) has recently been launched and has already developed a distinctive profile in this area of concern. Given the link between current concerns about the rights of migrants at sea and the conflicts in Syria, Libya, and other areas in North Africa and the Middle East, the issue of human rights is especially pressing. In a more general sense to do with maritime security in the round, there is a clear need to focus on human rights violations in relation to illegal activities at sea – piracy, smuggling, illegal fishing operations, etc. Many of these issues are either an offshoot of armed conflict or they provide a part of the backdrop to it.”
—Steven Haines, Professor of Public International Law at the University of Greenwich and author of “Chapter 38: Who is Shipwrecked?”
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Human rights: Interpreting or even overruling the Convention?
“Human rights permeate almost every field of international law today: trade, development, investment, climate change, and the laws of armed conflict. Despite the 1949 Geneva Conventions not being human rights instruments by any means, their interpretation has to take into account human rights every step of the way and human rights mechanisms have often to be used to enforce respect for rules of those Conventions. Even when least expected – e.g., concerning the detention and release of Prisoners of War (POWs) – human rights are relevant.
“In discussing the determination of POW status, Marie-Louise Tougas mentioned that while Art. 5(2) of Geneva Convention III offers a procedure for persons denied POW status, no remedy is foreseen for persons who may legitimately seek to challenge being labeled as POWs, as this label enables detention for an indefinite period of time (until the end of active hostilities). She wonders whether, in such cases, human rights law would require that the alleged POW be entitled to initiate proceedings before a court (in a habeas corpus petition), in order that that court may decide on his or her status, and thereby the lawfulness of his detention (and order the applicants release if the detention is unlawful under Convention III if the habeas proceeding found that the detainee were not, in fact, a POW).
“Similarly, in my work on repatriation, I consider that the human rights law prohibiting transferring persons to a state where they risk being tortured or ill-treated (principle of non refoulement), actually prevails over the absolute obligation under Convention III to repatriate POWs at the close of active hostilities. One may also argue that POWs who should be repatriated under Convention III (i.e., the seriously wounded or sick, or those held after the close of active hostilities) should have access to habeas proceedings to challenge the legality of their continued detention, as Convention III is no longer a legal basis for their internment, but does not offer them any remedy to challenge their continued detention.”
—Marco Sassòli, Professor of International Law and Director of the Department of International Law and International Organization at the University of Geneva, and an editor of The 1949 Geneva Conventions: a Commentary
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Beyond Hassan: Accommodating International Humanitarian Law in Human Rights Law?
“In an unprecedented move, the European Court of Human Rights has in the Hassan case accepted the need to interpret human rights law ‘against the background of the provisions of international humanitarian law.’ (para 104) Whilst Hassan turned on the right to liberty under Article 5 ECHR (para 103), it seems logical and appropriate that the same interpretative principle should also extend to the right to life under Article 2 ECHR, all the more as the Court relied on Varnava, an Article 2 ECHR case, to justify its approach in Hassan. Accordingly, the right to life under the ECHR should be accommodated with the rules relating to targeting under international humanitarian law. However, in Hassan the Court expressly confined its interpretative approach to international armed conflicts only, given that the legal basis for interment in a non-international armed conflict is contested.
“Would the Court it do the same in relation to targeting? Whilst in certain key respects the rules governing targeting are similar in international and non-international armed conflicts, for example in relation to the principle of precaution in attack, there are also crucial differences. In an international armed conflict, the legitimate targets of attack include combatants and civilians taking a direct part in the hostilities. The latter may also be targeted in a non-international armed conflict. However, it is unclear under what conditions members of organised armed groups may be subject to status-based lethal targeting. By extending the interpretative approach adopted in Hassan to lethal targeting in non-international armed conflicts, the Court would be drawn into these debates and, most likely, related legal difficulties, such as the geographical scope of non-international armed conflict. Faced with this prospect, it is likely that the Court will prefer to apply human rights standards on their own and avoid having to pronounce itself on these unsettled questions of international humanitarian law.”
—Dr Noëlle Quénivet is an Associate Professor in International Law at the Faculty of Business and Law of the University of the West of England (United Kingdom). She is author of “Chapter 61: Special Rules on Women”. Dr Aurel Sari is a Senior Lecturer in Law at the University of Exeter and a Fellow of the Allied Rapid Reaction Corps.
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Featured image: Geneva Conventions – signing in 1949. Photo by British Red Cross. CC BY 2.0 via Flickr.