The relationship between international human rights law and international humanitarian law: Taking stock at the end of 2022?

1. INTRODUCTION

As 2022 draws to a close, I use this column to reflect on the relationship between human rights law (IHRL) and international humanitarian law (IHL). ¹ During this year, armed conflict has continued to have a devasting impact on civilians around the world. In February, Ukraine joined the already too long list of countries ravaged by armed conflict, which includes Ethiopia, Yemen, Syria, DRC, Myanmar, and Colombia. Indeed, another year has passed with headlines dominated by stories of the plight of overwhelming numbers of displaced people, civilian casualties, the destruction of homes, towns, schools, hospitals, and essential infrastructure. The losses are staggering and hard to comprehend, not only in their scale but also in the heartbreak they represent. At a time when climate change is threatening human survival and the planet's natural resources are more precious than ever, the tragedy of fighting parties inflicting destruction upon life and infrastructure in an intentional manner is more profound than ever.

Faced with such horrors, it is tempting to become disillusioned with the system of international law entirely. But while professional and legal soul-searching in response to such catastrophes is essential, I believe that it is also important not to fall into the temptation of ‘blaming tools’ rather than expending energies shaping or sharpening them to make them better fit for purpose. ² For scholars working in the field of armed conflict, this means redoubling efforts to ensure that the legal norms that are in place to prevent such atrocities are clear and sufficient, so that they can be better complied with by the fighting parties, and so that their violation can have meaningful consequences. ³

It is out of this reasoning that I chose to focus this column on the relationship between IHRL and IHL, as relations between the two bodies of law have historically been famously fraught. In selecting this topic, I am also motivated by the fact that this year marks the 45^th anniversary of the 1977 Additional Protocols to the 1949 Geneva Conventions. As these protocols were the first treaties to explicitly acknowledge that IHRL applies to armed conflict alongside IHL, the occasion of their anniversary creates an appropriate moment to take stock of developments since then. ⁴ In reflecting on the manner that this debate has moved in the intervening years, I show that while there is now undoubtedly much more clarity regarding the relationship between IHL and IHRL than 45 years ago at the level of principle, there remains much work needed in this area. In particular, I argue that the recent findings by the European Court of Human Rights (ECtHR) in the Georgia v Russia ⁵ and Shavlokhova v Georgia ⁶ cases have injected instability into the European human rights system, by throwing into doubt whether and when a State will be bound to implement human rights obligations in situations of armed conflict and how human rights law can and should interact with international humanitarian law norms.

2. APPLICATION OF HUMAN RIGHTS LAW TO ARMED CONFLICT: LOOKING BACK

To set the scene and provide a framework for my analysis, I will first introduce three different ways in which it is possible to conceive of the relationship between IHL and IHRL. Despite the text of the Additional Protocols perhaps giving the impression that in 1977 everyone agreed that IHRL would apply in times of armed conflict, in fact 45 years ago the idea was extremely controversial and a rather heated debate was raging about the nature of the relationship between IHRL and IHL. As a way of summarising the rather unhappy state of the scholarly debate in 1983, the International Committee of the Red Cross (ICRC) identified three main theoretical schools of academic thought that existed at that time: the separatist, complementarist, and integrationist schools. ⁷ According to the ICRC, scholars allied to the complementarist school acknowledged that IHL and IHRL were two distinct systems which complement each other, because they are ‘impelled by a single conviction: respect for the dignity of the human person’. ⁸ This position was in the middle of a spectrum.

The positions on the other side were much more radical and reflected two camps of scholars and practitioners who regarded eachother with ‘mutual suspicion’. ⁹ At one end of the spectrum, scholars of the integrationist school advocated a controversial ‘merger of IHL and IHRL’. ¹⁰ Several authors within that school provocatively held that IHL was ‘merely part of human rights’ law. ¹¹ At the other end of the spectrum, scholars advocated a ‘separatist approach’ arguing that the two legal regimes were ‘completely different and that any coming together of these two branches of law causes harmful confusion’. ¹² According to scholars of a separatist persuasion, when armed conflict broke out, a curtain would come down on IHRL's application and the new situation of fighting would be governed entirely by IHL. ¹³ For scholars allied to this school, IHL and IHRL represented separate individual silos of law that existed in isolation. There was no co-application of the legal frameworks and therefore no conflict between them.

3. COMPLEMENTARISM: THE DOMINANT APPROACH

Looking back at the last four decades of scholarship and practice, there is no doubt that there is considerably more clarity about the relationship between IHRL and IHL today, than there was at the time when the Additional Protocols to the Geneva Conventions were drafted. Indeed, when taking stock at the end of 2022, it is clear that these days the complementarist approach is the dominant school of thought. The modern version of this approach finds, first, that each body of law has its own unique value and, second, that the value of the bodies of law can and should be applied together to achieve the maximum protection of the human person. Today, examples of such complementarist approaches can be found in abundance, including in the various strong statements from the International Court of Justice (ICJ) confirming that IHRL continues to apply in times of armed conflict, alongside IHL. ¹⁴ They can also be found in regular statements by different kinds of human rights monitoring bodies confirming IHRL norms have an important role to play in armed conflict. The separatist notion that IHL can ‘do it all’ in efforts to secure the protection of the human person in times of armed conflict seems to be increasingly rejected. There is a series of strong statements recognising the value of IHRL norms in times of armed conflict by UN treaty bodies, like the General Recommendation 30 of the Committee on the Elimination of Discrimination against Women (CEDAW Committee) which is devoted to the protection of women under the Convention on the Eleminiation of All Forms of Discrimination against Women (CEDAW) in times of armed conflict. ¹⁵

The heavy reliance on both IHRL and IHL norms by the Human Rights Council's special procedures is testament to how firmly it is now accepted that human rights law applies in times of armed conflict, alongside international humanitarian law. The frequent reference to human rights norms by the UN General Assembly and the UN Security Council in its resolutions under Chapter VII and in its Protection of Civilians mandate is now commonplace. The work of the UN Office of the High Commissioner for Human Rights (OHCHR) and its field offices on armed conflict is well established and has proved enormously valuable in monitoring the behaviour of parties to armed conflicts, under both IHL and IHRL. Similar value is found in the different commissions, inquiries and expert panels set up by the Human Rights Council in countries experiencing armed conflict such as Syria, Yemen, and South Sudan. All of these entities confirm the independent and complementary value of both bodies of law in their reports. The truth of the ICJ's statement in its Wall Advisory Opinion now seems recognised in practice: IHRL not only adds important normative value on issues that are also regulated by IHL, but also addresses several key issues that are not regulated by IHL at all, or only scarcely, – such as the right to freedom of movement, the right to health, the right to work, the right to freedom of expression, and the right to freedom of association. ¹⁶ It is in some part due to the broad acceptance of the idea that human rights law does apply in times of armed conflict that in the last two decades scholars have been able to zoom in and focus on different, and more nuanced questions, such as whether and when armed groups have human rights obligations, and the question of how human rights law may regulate discrete issues in armed conflict, such as detention, the right to life, fair trial, legal identity and economic, social and cultural rights.

Reflecting this shift from a high altitude discourse to a finer grained analysis of individual norms, several human rights bodies also have now made statements clarifying the relationship between specific norms of IHL and IHRL. ¹⁷ Scholars have long commented that the issues on which conflict between these frameworks is most probable are detention and the right to life. ¹⁸ On these two issues, the protections offered by IHRL are founded on a different philosophy to those provided in IHL. When it comes to the right to life, IHRL sets out a vision of protection that flows from an assessment of risk to life, based on spatial, temporal, and circumstantial immediacy and an application of the idea that any force employed by the State must be necessary and proportionate. This approach is very different to the philosophy found in IHL that traditionally allows a person's status (as combatant/fighter/civilian) to overrule any assessment of the immediate risk that they pose to others. When it comes to detention, IHRL again contains a prohibitive norm – the prohibition of arbitrary detention – that makes clear that a person can only be detained when it is necessary because an individual poses a direct, present, and imperative danger for others or in connection with the prosecution of a crime. It encapsulates a different philosophy to the norm in IHL, which envisages that some people will be detained on the basis of their status and implicitly therefore the potential danger they may pose, even at some unspecified point in the future. ¹⁹

Wrestling with the question of how to reconcile these conflicting philosophies when examining individual norms, different courts and tribunals have provided guidance on how the two bodies of law should be applied. For a long time, recourse was mainly had to the lex specialis principle, suggested by the ICJ in the Nuclear Weapons Advisory Opinion. ²⁰ Yet the use of this principle by the ICJ was in some ways distracting, because it raised a host of questions regarding its scope. Not only was there disagreement on how and when the principle should be employed, but there was also disagreement on the most important question of all: can IHRL also be the lex specialis in a given circumstance? ²¹ These days, there seems to be growing agreement that the lex specialis principle is not the most useful tool for addressing the relationship between the bodies of law. ²² Perhaps this is because to say that one body of law is ‘special’ to the other is akin to a separatist approach in complementarist clothing. It suggests that the two bodies of law are in competition, rather than complementary. In fact, there seems little doubt that it is due to the awkward fit of the lex specialis principle that recourse is now increasingly being had to the principle of systemic integration found in Article 31(1)(c) of the Vienna Convention on the Law of Treaties (Vienna Convention). ²³ According to this provision, a State's obligations under one body of law are to be interpreted in a manner that pays attention to the fact that it is also bound by other bodies of law. This approach holds potential to break down the silofication of the different legal frameworks. It encourages human rights or IHL monitoring bodies to interpret either IHL or IHRL to take into account the broader system of international legal obligations, to which the State in question is bound.

4. POSSIBILITIES FOR NEW FORMS OF INTEGRATIONISM?

It is interesting to consider whether the principle of systemic integration really encourages a complementary approach, or may in fact sometimes take steps towards a merger between the two bodies of law on certain norms. As a legal tool, the principle of systemic integration proposes a solution that might sometimes be understood as tending towards an integrationist approach, even though the integration that it facilitates is quite different to that which was discussed in the 1970s. Rather than advocating that one body of law be seen as part of the other, the principle facilitates a porosity between the two legal frameworks on individual norms, that (in theory) allows each body of law to retain its own character while accommodating the other. Examples of the approach at work can be seen in the Human Rights Committee (HRC)'s general comment on the right to liberty and security of person. The HRC affirmed not only that ‘both spheres of law are complementary, not mutually exclusive’ but also that ‘[s]ecurity detention authorized and regulated by and complying with IHL in principle is not arbitrary’. ²⁴ The HRC asserted the same in its recent general comment on the right to life, which confirmed not only that ‘rules of IHL may be relevant for the interpretation and application of article 6 [of the International Covenant on Civil and Political Rights (ICCPR)]’ but also repeated that IHL and IHRL are ‘complementary, not mutually exclusive’. ²⁵ While many might argue that an identical outcome could have been achieved with the lex specialis principle (when interpreted as an interpretative rule), these documents are evidence of the fact that there is no need to have recourse to a Latin term, that in its literal meaning promotes the idea that one norm is special. The principle of systemic integration invites and facilitates a non-hierarchical co-application of IHRL and IHL that results in complementary and additive protection.

A similar porosity, working the other way around, is found in efforts to clarify the scope of IHL, with reference to IHRL norms. The case law of the ad hoc criminal tribunals for the former Yugoslavia and Rwanda contains numerous examples of trial and appeals chambers having recourse to IHRL to clarify the manner in which norms of IHL should be interpreted. In early case law on the definition of the war crime of torture, the International Criminal Tribunal for the former Yugoslavia used the interpretation of ‘torture’ by various human rights bodies to determine its definition under humanitarian law. ²⁶ In a clear sign that it saw the assignment at hand to be one of finding complementariness not integration, it discarded the ‘public official’ part of the definition that it did not consider to fit with the IHL framework. ²⁷ More recent examples of human rights norms being used to interpret humanitarian norms abound in the ICRC's ongoing commentaries project. Again with recourse to the principle of systemic integration found in Article 31(3)(c) of the Vienna Convention, the ICRC uses IHRL norms and jurisprudence to interpret IHL law concepts that have an equivalent concept in IHRL, like ‘judicial guarantees’, ‘torture’, ‘degrading treatment’. ²⁸ Similar recourse to IHRL norms can be found in the ICRC's customary international law project. An interesting example is the customary prohibition of arbitrary detention in non-international armed conflict. While according to the ICRC the emerging norm is one of ‘customary international humanitarian law’, an examination of the underlying practice shows that it has emerged out of predominantly IHRL-related practice. ²⁹ These examples go to show that by breaking down the silofication of these two bodies of law, individual norms can be expanded or even created. ³⁰

The legitimacy of employing complementary methods that change (the interpretation of) the underlying norm as a matter of law will almost inevitably depend partly on the textual elasticity of the original norm that is being interpreted. Clearly there is quite some scope for elasticity in the customary international law ascertainment process. There is also flexibility in the text of articles 6 (right to life) and 9 (prohibition of arbitrary detention) of the ICCPR. In both articles, the words ‘arbitrarily’/‘arbitrary’ function as a lens that legitimises recourse to IHL rules. ³¹ But in some regional systems the treaty law text is much less supple. The potential problems that such a lack of flexibility can usher in are illustrated in the ECtHR's Hassan v UK case, where it was argued that the UK had violated Article 5 of the European Convention on Human Rights (ECHR), by holding Mr Hassan prisoner in the context of an international armed conflict. The ECtHR controversially read down Article 5 to allow forms of detention that were not contemplated by the drafters of the ECHR. ³² Although the list of grounds of permissible detention in Article 5 did not include internment or preventive detention where the State had no intention to bring criminal charges, the Court held that sub-paragraphs (a)-(f) of Article 5 should be ‘accommodated’, as far as possible, with the taking of prisoners of war and the detention of civilians who pose a risk to security under the Third and Fourth Geneva Conventions. ³³ The judgment was applauded by some for its pragmatism, though criticised by others for its trampling of the ECHR text. ³⁴ In treating Article 5 as having more elasticity that the actual text supported, the Court's approach raised questions regarding the limits of the principle of systemic integration in Article 31(3)(c) of the Vienna Convention. Should it be applied in a manner that interferes with the rule that a treaty's terms should be read ‘in accordance with the[ir] ordinary meaning’ in Article 31(1)?

It can be seen that the ECtHR's position on this point presents an example of complementarity verging on a kind of integrationism, that ends up even carrying a hint of separatism. The ECtHR took efforts to take account of both bodies of law, but in the process watered down the principles at the heart of IHRL norm, to the extent that it became questionable whether the resultant substantive norm that the ECtHR applied was really a IHRL norm at all. There was of course another way in which the UK could have fulfilled its obligations under both its human rights obligations and its IHL obligations at the same time and that was through limited derogation from Article 5.

5. SEPARATISM, ALIVE AND KICKING?

It is clear from the analysis above that in the last 45 years, legal practice has travelled a long way from the brand of separatism that was found in scholarship in the 1970s, where scholars like Draper indicated that the ‘two regimes [were] not only distinct but… diametrically opposed’. ³⁵ With the benefit of hindsight, we can see that the existence of such radical separatism in the 1970s was probably a backlash against the radical integrationism espoused by some others scholars at that time. The claim by some authors that IHL was a part of IHRL was probably especially provocative and antagonising, given that IHRL had only relatively recently started to be applied in times of war. ³⁶ In addition, compared to IHL, it was a relatively new body of public international law. ³⁷ Once that form of radical integrationism disappeared, it makes sense that its polar opposite ‘radical separatism’ also disappeared. Yet, although we find ourselves in a completely different landscape today, it is concerning to see that examples of twenty-first century separatism can still be found and continue to influence the legal framework.

An obvious example of policy-dictated separatism can be found in the example of Russia deciding to denounce the ECHR entirely, when it found itself receiving criticism for its invasion of Ukraine. ³⁸ A tendency towards separatism can also be found in the various arguments by States seeking to restrict any application of the treaty when States are acting extraterritorially outside the ECHR's ‘espace juridique’. ³⁹ Here States are not (only) arguing about how IHL interacts with IHRL, but also about whether IHRL places obligations on them in the first place, when acting extraterritorially. Another and perhaps even more alarming form of separatism has recently emerged in the Shavlokhova v Georgia case, which emerged out of the equally worrying Georgia v Russia II. ⁴⁰ In the earlier Grand Chamber judgment, the ECtHR found that Russia did not have jurisdiction over the events in the first five days of the armed conflict on the basis the ‘culture of chaos’ that reigned during the hostilities. ⁴¹ It distinguished the position it took on this issue from its earlier case law, by saying that earlier cases had concerned ‘isolated and specific acts, involving an element of proximity’. ⁴² In the later admissibility decision, the Court applied this same proximity test to find that a State may not be in a position to exercise its authority, and therefore have jurisdiction, in times of active hostilities, even when acting on its own territory. ⁴³ By taking this far-reaching position in both cases – but especially the Shavlokhova case - the Court has seemingly placed all situations of active hostilities outside its competence, without defining what the term ‘active hostilities’ means. ⁴⁴ Behind the scenes, we can apprehend that the Court was overwhelmed by the thought of assuming the monumental task of applying a body of law formally outside its founding treaty to a series of events of enormous complexity.

While one can have some sympathy with the Court on these aspects, numerous problems are raised by the Court's approach. ⁴⁵ I will focus here on just a few, arguing that the legal tools of ‘context of chaos’ and ‘proximity’ that the Court employs when analysing the ‘effective control test’ and the ‘State agent authority and control test’ are highly problematic. ⁴⁶ Surely the word ‘chaos’ to describe active hostilities would be disputed by both State militaries and victims of the war. To use the word ‘chaos’ arguably diminishes the intentionality of hostilities, the strategy behind decisions, and the notion that fighting should be the result of responsible command. It also signifies a vantage point taken by the Court that sits at too high an altitude to see the detail of human experience, a vantage point problematic for a human rights court. It suggests that the Court employed a deliberate myopia that did not want to see the individual civilian amongst the horror and did not want to untangle the complexity of the battlefield. A similarly myopic lens is evidenced by the Court's recourse to the word proximate, a term that is not well explored or explained by the Court but similarly indicates a highly distanced and unemotional lens. To say that losses incurred during the conflict of hostilities are not ‘proximate’ raises a multitude of questions. Not proximate in what way? Not proximate to whom? How should proximity be measured or determined?

A variety of images flash before my eyes when I try to figure out the bright lines purportedly created by the Court's requirement that acts should involve an ‘element of proximity’ for people to be held to be under the ‘authority and control’ of a State agent, a condition that the Court seems to suggest will never be fulfilled in the active phase of the hostilities. The first is of a painting that I show my IHL students of the Battle of Solferino, when we talk about changing patterns of warfare. The painting depicts man fighting against man, so close that they are touching, thrusting bayonets into each other's bodies, fallen in heaps on top of each other. Would this kind of warfare satisfy the Court's proximity requirement? The second image that comes into my mind is also brutally violent. I think about rape being employed in a widespread and systematic manner, as a weapon of war, as part of an effort to inflict terror and pain on civilians during the active hostilities. Would this kind of act be proximate? The third image that I have is of bodies of children that have been pulled out of the rubble of a school destroyed in a situation of conflict. How would the Court approach this? Would it matter what weapon caused the building to fall and how it was employed? Would it matter if the building fell during or after the hostilities? Would the killing of these children be proximate? A re-reading of the Georgia v Russia judgment and Shavlokhova v Georgia admissibility decision leaves me unsure. As my mind ponders these questions, the title of my colleague Dr Lauren Gould's research project on drone warfare – ‘The Intimacies of Remote Warfare’ – comes to mind. ⁴⁷ To me, the juxtaposition of the words ‘Intimacies’ and ‘Remote’ in the title captures the notion that labelling warfare as remote (or lacking proximity) is insulting. It not only gives insufficient attention to the civilian perspective, but also signals something highly privileged about the position of the beholder.

Ultimately, these recent decisions highlight the point that scholars such as Milanovic have been making for years when pointing out the illogicality (and even immorality) of the findings of the ECtHR that a State will only have jurisdiction over individuals when they are in in their direct control. ⁴⁸ How can it make sense to say that a State is exercising control over someone when they torture them in a cell, but not when they kill them from a distance? In the words of partly dissenting Judge Pinto de Albuquerque: ‘the shooting of an individual by state agents constitutes the ultimate form of exercise of control’. ⁴⁹ It is only when more attention is given to the development of a solid legal principle that the legal framework can remain stable and respectable rather than being reduced to an apologetic jelly on a plate. ⁵⁰ While the challenges posed by the political climate in which the ECtHR is operating are not to be easily dismissed, nor should the principle that a State should not be allowed to do abroad what it cannot do at home. Perhaps of greatest concern is that the ECtHR is putting itself seriously out of step with other regional and international human rights treaty bodies that are taking more principled approaches. ⁵¹

6. CONCLUSIONS

This column has shown that in the last 45 years there has been tremendous advancement in the manner in which the relationship between human rights law and international humanitarian law is understood and operationalised. Perhaps most positively, it can be seen that the debate has flattened considerably, with radical integrationist and radical separatist positions now being rather rare. That being said, it has also shown that integrationist and separatist impulses and trends remain very much alive and need careful monitoring. Indeed, at a time when it is estimated that there are currently more than one hundred armed conflicts around the world, involving over sixty States and one hundred non State armed groups, it is more important than ever that attention is given to sharpening the legal tools that used to delineate and regulate this relationship, whether they be methods of treaty interpretation or determinations of jurisdiction. It is critical that human rights treaty bodies make decisions on the basis of principled line-drawing that can be applied with predictability. This means rejecting the temptation to create artificial coherence, when it might be better to recognise that there is none. It also means resisting the temptation to placate States, by resurrecting positions that not only take aspects of the debate backwards but also give insufficient attention to the experiences of the civilians caught up in armed conflict.