RESPONDING TO SEPTEMBER 11:

THE FRAMEWORK OF INTERNATIONAL LAW

Parts V - VI

          TREATY LAW 

          CUSTOMARY LAW

1. Targeting: The Principle of Distinction and Proportionality 
               Directing Attacks against Military Objectives
                           Persons
                           Objects
               Indiscriminate Attacks
               Necessary Precautions in Attack
   
2. Methods and Means of Warfare: Unnecessary Suffering
   
3. Humanitarian Protections 
               Civilians
               Prisoners of War (POWs) and Wounded or Sick
               Responsibility for Violations of IHL

    INTERNATIONAL HUMAN RIGHTS IN ARMED CONFLICT 
                        
          TREATY LAW
                    Restrictions: claw back clauses 
                    Derogation clauses
                                      Conditions for derogation
                                       Inalienable �non-derogable� rights applicable in all situations

             CUSTOMARY LAW

    RELATIONSHIP BETWEEN IHL AND HUMAN RIGHTS LAW 


PART VI: REFUGEES AND INTERNALLY DISPLACED PERSONS

                 INTERNALLY DISPLACED PERSONS

                 DISPLACED PERSONS: HUMAN RIGHTS AND REFUGEE LAW 

PART V: LAWS APPLICABLE IN ARMED CONFLICT (top)

Earlier parts of this paper have focused on the circumstances in which it is lawful for states to resort to armed force, and other responses to the events of September 11 contemplated within the international legal framework. This part, by contrast, addresses the rules that apply in the context of armed conflict, once there has been a resort to force. These rules derive from a core of international human rights law that applies in all situations, and a special body of international humanitarian law that comes into play in armed conflict. These rules (the jus in bello) apply irrespective of whether the use of force is itself lawful (according to the jus ad bellum, addressed at Part II of this paper).

This part of the paper sketches out relevant provisions of international humanitarian law, international human rights law and touches briefly on the inter-relationship between the two bodies of law applicable during armed conflict.

INTERNATIONAL HUMANITARIAN LAW

International humanitarian law (IHL) imposes constraints on how war may be waged. Its objective is to protect certain persons who do not (or no longer) take part in hostilities and to limit the methods and means of warfare for the benefit of all.

IHL applies in time of 'armed conflict.' Its precise content varies depending on the international or non-international nature of the conflict (although basic principles apply to both). This section will therefore consider the law that defines whether there is an armed conflict and, if so, what sort of conflict, before going on to consider the applicable rules of IHL.

As noted at Part IV, it is questionable whether the events of September 11 might themselves constitute the initiation of an armed conflict (and potentially therefore amount to war crimes). These questions need not be addressed for the purpose of determining whether there is an armed conflict in the light of the military action that commenced on October 7.

when and where ihl applies

Armed conflict: international or non-international

�Armed conflict� has been defined as follows:

[A]n armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State�.

It is indisputable that an armed conflict is international if it involves the use of force by one state directed against another. However, an international armed conflict may also arise where a State or states intervene in an internal conflict, with its own troops or by having other participants act on its behalf. As one commentator notes: �whenever a state chooses to send its armed forces into combat in a previously non-international armed conflict in another state - whether at the invitation of that state�s government or a rebel party - the conflict must then be considered an international armed conflict.� Cases of total or partial military occupation, even where there is no armed resistance, are also international conflicts for the purposes of IHL.

No relevance should be attached to the existence or otherwise of a �declaration of war,� nor to the recognition or not by the parties that they are in a state of war, in determining whether there is, in fact, an �armed conflict.� Likewise, recognition of a state or government by an opposing party, or by other states, is unnecessary for the armed conflict to be 'international' in nature.

Hence, where force is directed against the state, or de facto government, or where a state intervenes coercively in an armed conflict outside its own territory (whether or not the force is directed against the state), there is an international armed conflict for the purposes of the application of IHL.

Territorial and temporal scope of IHL

In the event of an armed conflict, �international humanitarian law continues to apply in the whole territory of the warring States (or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there).�

It applies from the initiation of an armed conflict and �extends beyond the cessation of hostilities until a general conclusion of peace is reached.�

Applicable Law

IHL can be found in treaties and customary law, considered in turn below. The rules that govern any armed conflict depend, to some extent, on the international or non-international nature of the conflict; the applicability of particular treaties depends also on whether they have been ratified by all parties to the conflict. However, certain core rules of customary law are applicable irrespective of treaty ratification or the nature of the conflict.

Treaty law

A long established and intricate body of treaty law regulates international conflicts. It is contained in instruments such as the Hague Convention Respecting the Laws and Customs of War on Land and the Regulations annexed thereto, 1907, the four Geneva Conventions, 1949, the First Additional Protocol thereto, 1977 and the Hague Convention on Cultural Property, 1954. By contrast, non-international armed conflicts are regulated by a fairly skeletal body of treaty law.

To constitute treaty law binding on the parties to the conflict, the particular treaties must have been ratified or acceded to by those parties. The US, UK and Afghanistan are all party to the four Geneva Conventions, which are therefore binding in the current conflict as treaty law, but few other relevant treaties have been accepted by all parties. In general, the principle of 'reciprocity' means that IHL treaty provisions only come into operation in an armed conflict if all parties to the conflict are parties to the treaty. A basic core of IHL treaty provisions are not, however, limited by reciprocity on the basis that, by their nature, they enshrine obligations erga omnes (ie obligations owed to all states, not merely the other parties to the treaty). Moreover, the application of such key treaty provisions may result from their status as part of customary law, discussed below.

Where a treaty is applicable, this is not affected by the fact that an adversary may violate the obligations contained therein. Similarly, non-observance of particular rules by one party does not justify violations by another. In this vein, the ICTY has emphasised that crimes committed by an adversary can never justify the perpetration of serious violations of IHL.

customary law

Certain fundamental principles of IHL apply irrespective of the application of treaty law. Overarching principles such as humanity and military necessity, from which the more particular principles of distinction, proportionality and the prohibition on causing unnecessary suffering derive, can be considered customary international law applicable to all conflicts.

The treaties mentioned above remain relevant so far as they reflect or provide evidence of customary law, and their provisions may therefore be binding on states whether or not they are parties to them. Among the critical treaties that are recognised to fall into this camp are the Geneva Conventions, 1949 and the Hague Convention Respecting the Laws and Customs of War on Land, 1907. Although less settled, the bulk of the provisions of the First Additional Protocol to the Geneva Conventions (AP I) are generally recognised as forming part of customary law.

Moreover, as noted below, developments in practice and legal thinking point to the 'blurring' of the distinction between international and non-international conflict and the rules applicable to each. Thus, while it remains the case that a more comprehensive body of law governs international conflict, a �common core� of customary IHL applies whatever the nature of the conflict.

In any event, the international or non-international distinction is further diminished where a state undertakes, as the United States has, to apply the same law of war to all conflicts in which it conducts military operations, however classified.

The following section sketches out rules concerning selection of legitimate targets, lawful methods and means of warfare and the humanitarian protection due to protected persons, which derive from principles of general application. Reference will be made where appropriate to particular treaty provisions, which may either be directly applicable to the conflict as such, or reflect customary law.

1. Targeting: The Principle of Distinction and Proportionality

IHL regulates who and what may be the legitimate target of military action during armed conflict.

At the heart of these rules is the principle of distinction which counters the notion of total war. It requires that civilians must be distinguished from military targets and operations directed only against the latter. Distinction is the single most important principle for the protection of the victims of armed conflict. It is a principle of customary law applicable to all types of armed conflict.

As explained below, attacks against civilians and civilian objects are unlawful. Attacks against civilians are attacks which are a) specifically directed against civilians or civilian objects, b) launched without distinction between the two groups or c) directed at military objectives, but cause damage to civilians or civilian that is disproportionate to the military advantage anticipated at the time of launching the attack. The law imposes certain positive obligations on those responsible for attacks to ensure that these rules are complied with.

Directing attacks against Military Objectives

Under IHL, only �military objectives� may be the object of legitimate attack. Military objectives consist of �combatants,� being those that take part in hostilities, and certain objects which make a contribution to the adversary�s military capability.

Targeting Persons

Armed Forces

Combatants in the armed forces of an adversary in an armed conflict are the most obvious military objective. 'Combatants' include not only regular troops but may also comprise irregular groups that fight alongside them. Killing those who fight with the adversary's armed forces, which may amount to murder if there is no armed conflict, is considered lawful in time of conflict under IHL.

If however, combatants are hors de combat (out of military action), voluntarily or involuntarily, for example through surrender or illness, they are no longer military objectives but become entitled to the protection of the law. Hence it is not lawful to kill a prisoner, or a soldier no longer participating in the conflict through injury. Killing and taking prisoner are not lawful interchangeable alternatives.

While members of the armed forces are generally lawful targets, certain persons accompanying the armed forces, such as medical and religious personnel, are not. Also, it is generally not legitimate to attack members of government: politicians, and even armed personnel such as the police, may only be legitimately killed under IHL where they are in fact part of the armed forces of the state. This is a question of fact, dependent on the nature of the regime and the context in question.

Civilians

The cardinal rule of humanitarian law is that civilians must not be the object of attack. While this follows logically from the fore-mentioned rule that only military objectives may be targeted, explicit provision for civilians appears throughout humanitarian law. Civilian status is lost only where the person takes an active part in hostilities, not merely on the basis of support or affiliation.

All persons who are not combatants and do not take a direct part in hostilities should be protected from attack as civilians. Critically, if any doubt arises as to whether someone is a combatant or a civilian, he or she must be presumed a civilian. The fact that combatants are among the civilian population does not necessarily deprive the population of its civilian character, and the legitimacy of targeting a 'mixed' group would depend on the question of proportionality, discussed later in this section.

Attacks against the civilian population are prohibited not only where they are deliberately directed against the civilian population as such. They are also prohibited where they are aimed at military and civilian objectives without distinction or directed at legitimate objectives, but cause civilian losses disproportionate to the military advantage anticipated, as discussed below.

Targeting Objects

As regards objects that may be targeted, the most widely accepted definition is that in Article 52 of Additional Protocol I (AP I), which states:

In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralisation, in the circumstances ruling at the time, offers a definite military advantage (emphasis added).

This definition has been described as almost certainly embodying customary law.

The corollary of this rule, that attacks against civilian objects is prohibited, is stated in AP I. The ICTY considers the prohibition on attacking 'civilian objects' or 'dwellings and other installations that are used only by civilian populations' part of customary law, applicable to all conflicts. In addition to this general rule, attacks against certain specific categories of objects, such as buildings dedicated to religion, charity, education, the arts and sciences, historic monuments and cultural property are specifically prohibited by particular international instruments.

The most difficult issues of targeting arise in relation to objects with dual military and civilian uses, such as bridges, roads, electric-power installations or communications networks. The lawfulness of the targeting of the Belgrade television studio during the NATO bombing of the former Yugoslavia, for example, has been questioned by several commentators, and is subject to a legal challenge before the European Court of Human Rights.

The first question of fact is whether the target makes an effective contribution to military capability and offers direct military advantage. International humanitarian law provides that �in case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used.�

If the target offers direct military advantage, the second question of fact is whether that advantage outweighs any loss to civilians, and whether all feasible steps are taken to minimise civilian losses.

Finally, while it is a serious violation of humanitarian law to deliberately put military objectives in the vicinity of civilians, doing so does not necessarily justify an attack from the adversary. The lawfulness of targeting would depend on the same question of proportionality, discussed further later in this section.

Indiscriminate Attacks and those Causing Disproportionate Civilian Loss

In addition to the rule that attacks must not be specifically directed against civilians is the rule that attacks must not be indiscriminate, that is, fired against military and civilian objectives without distinction. The prohibition on indiscriminate attacks is a fundamental aspect of the customary principle of distinction.

Closely linked to the principle of distinction is the �proportionality� rule, which requires that those directing attacks against military objectives must ensure that civilian losses are not disproportionate to the direct and concrete military objective anticipated to result from the attack. Proportionality is generally accepted as a norm of customary international law.

Proportionality requires a measuring of the military advantage anticipated from an attack against the civilian losses anticipated. There is no precise formula for this proportionality calculus, and the relative value to be attached to civilian and military losses will depend on all the circumstances. However, a few specific points deserve emphasis. First, the military advantage anticipated must be �direct and concrete.� It cannot be long term or speculative. The assessment of military advantage against potential loss must be made in relation to particular military operations, not in relation to a battle, still less a conflict as a whole. Second, the evaluation cannot be made after the fact, when the number of civilian and military casualties can be compared, but based on the information available at the relevant time and in the context of all the prevailing circumstances.

A mistaken evaluation of proportionality, just like a mistaken identification of a target, is not in itself unlawful. However, ignorance as to the nature of the target, its military contribution or the extent of civilian losses is not per se an excuse. IHL lays down certain duties on those responsible for attacks that safeguard the principles of distinction and proportionality; if civilian losses result from a situation where these duties have not been observed, then a violation of IHL has occurred.

Necessary Precautions in Attack

Complicated issues of targeting may arise, for example in respect of defended cities with 'dual use' facilities and close inter-mingling of civilian and military elements, as the Prosecutor�s Office of the ICTY has noted. Likewise, rural terrain and guerrilla tactics may make target identification difficult. However, core principles of international humanitarian law require that every responsible military commander must take certain precautions to ensure the lawfulness of a military attack.

These include the duty to verify the nature of the target and to refrain from launching attacks anticipated to cause disproportionate damage. It is no excuse that a commander or other person who plans or decides upon an attack does not have the information available as to the true nature of a target, as IHL imposes a duty to inquire. If a commander cannot, upon inquiry, obtain the necessary information, he or she cannot attack assuming the target to be legitimate. On the contrary, if in doubt, the assumption must be that the target is protected.

Moreover, even if a target is identified and is legitimate (being a military objective that satisfies the proportionality rule), commanders must take all feasible steps to minimise the damage to civilian life and objects resulting from the military action. These include giving warnings of attacks that may affect the civilian population and, where there is a choice of targets, choosing those least injurious to civilian life.

The prohibition on waging war in a manner that causes unnecessary suffering is generally accepted as part of customary international law. The expression �unnecessary suffering� is used in a number of legal instruments yet nowhere is it defined. The concept is however clearly linked to the customary principle that all suffering caused in conflict should be pursuant, and proportionate, to military necessity. As such, the ICJ has described causing 'unnecessary suffering to combatants' as causing 'harm greater than that unavoidable to achieve legitimate military objectives.'

While an evaluation of what amounts to unnecessary suffering is likely to be case and context specific, certain methods and means of warfare are considered by definition to cause unnecessary suffering. For example, attacks directed against civilians are per se unnecessary and prohibited. Moreover, in addition to the specific treaty provisions that regulate the use of particular weapons, certain weapons are deemed by their nature to cause �unnecessary suffering� and therefore to be prohibited under customary law.

The customary law prohibition on weapons causing unnecessary suffering covers those that are either a) cruel or excessive in the nature and degree of suffering they cause or b) incapable of distinguishing combatant from civilian. Among the first group are weapons considered so inherently abhorrent that they are banned absolutely, even when directed against combatants or other lawful targets, such as blinding laser weapons or poisons. The second group covers weapons that are banned due to their inability to distinguish between civilian and soldier and hence inherently indiscriminate nature, which arguably include anti-personnel land mines.

Considerable controversy has centred around whether particular weapons systems fall within this definition and are prohibited by general international law. For example, while the issues remain unsettled as a matter of law, serious questions have been raised as to the lawfulness of the use of cluster bombs on the basis of their indiscriminate effects. In one case, the ICTY appears to regard home made mortars as indiscriminate weapons. While nuclear weapons have been found not to be per se unlawful, although the International Court of Justice (ICJ) has found that their use would be 'scarcely reconcilable' with the principles of IHL.

Finally, the customary prohibition on methods and means of warfare causing unnecessary suffering is applicable in either international or non-international conflict. The ICTY has taken the view that it is 'preposterous' to consider weapons that are prohibited in international conflicts not also to be prohibited in non-international conflicts.

INTERNATIONAL HUMAN RIGHTS LAW IN ARMED CONFLICT

International human rights law is the body of law enshrined in treaties and customary law that protects a range of human rights, from the right to life, liberty and security, freedom of expression or religion, to economic, social and cultural rights such as the rights to food and education. It entails 'negative' obligations on states not to violate rights and positive obligations to take necessary measures to 'ensure' their protection. These obligations apply to all those in a state's territory or subject to its jurisdiction, which may extend beyond a state's borders where that state has de facto control over another state's territory, or where it exercises its authority abroad. They apply to nationals and aliens alike.

No circumstances, however extreme, render the framework of human rights law redundant: on the contrary, human rights protections are most important in times of national and international strain. However, the law does have the inherent flexibility to adjust to extreme situations. First, certain specified rights may be restricted where this is necessary, for example to protect public order or the fundamental rights of others; second, in times of 'public emergency' a broader range of rights may be suspended (or �derogated� from), such that a more restrictive body of �core� human rights law applies.

treaty law

Ratification of international and regional human rights treaties is widespread. At the time of writing, 147 states have ratified the International Covenant on Civil and Political Rights (ICCPR) among which are Afghanistan, the US and the UK. The European Convention on Human Rights (ECHR) has been ratified by a total of 41 states, including the UK, and the American Convention on Human Rights (ACHR) by 26 states (the US has signed but not ratified). In addition to these general international and regional human rights treaties, are others that address specific violations or protect specific groups of persons, such as the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) 1979 and the Convention on the Rights of the Child (CRC) 1989.

Restrictions: claw back clauses

Some provisions of these treaties expressly recognise that rights may be restricted in certain circumstances. For example, Article 18 of the ICCPR notes that �freedom to manifest one's religion or beliefs� may be subject to such limitations as are �prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others.� However, these restrictions - or 'claw back' - clauses attach only to a limited number of rights. Under the ICCPR for example these clauses relate to freedom of movement (Article 12), freedom of conscience and religion (Article 18) and freedom of expression (Article 19). They do not therefore permit restrictions on rights relating to liberty and detention (Article 9) or the right to a fair trial (Article 14). Lawful restrictions must be no more than strictly necessary. As exceptions, these clauses must be strictly construed.

Derogation clauses

International and regional human rights treaties also allow states in certain situations, and subject to specific safeguards, to renounce parts of their obligations in respect of certain rights. The derogation clauses in those treaties govern the conditions and procedure that states are bound to comply with in order to derogate, and the �core� of human rights that is non-derogable.

As this core group of fundamental rights must be respected in all situations, including armed conflict, it complements the more specific rules of IHL described above. Together they provide the standard for treatment of persons during armed conflict. Moreover, the law governing derogation, and the obligation to respect the non-derogable core of human rights, provide the litmus test for assessing the lawfulness of any civil liberties infringements on liberty, fair trial or right to a remedy, for example, that may result from measures adopted under �anti-terrorism� legislation.

The following section highlights the conditions that must be met for state parties to human rights treaties to derogate from their normal human rights obligations and the nature of the irreducible core of human rights.

Conditions for derogation

Public Emergency threatening the Life of the Nation

Not every disturbance or catastrophe justifies derogation. Both the ICCPR and ECHR require the existence of a 'public emergency threatening the life of a nation.' While the emergency need not affect the whole population, it does need to be serious enough that 'the organised life of the community of which the state is composed' is threatened. The threat that justifies derogation must of course arise in the state seeking to derogate, as opposed to in any state.

As with any exception, derogation must be strictly construed. The need to derogate must be based on an accurate examination of the situation in the country, not mere predictions of future attack. A situation of 'armed conflict' on the territory of a state would most likely amount to such an emergency, as would other situations that might threaten the life or security of the nation in question. The standard is intentionally high, given the important implications of derogation, namely suspending basic human rights protections.

Measures no more than Strictly Necessary

Where this first threshold is satisfied - and the circumstances do justify derogation in principle - each measure taken pursuant to the emergency situation must not exceed what is 'strictly required by the exigencies of the situation.' Measures that violate derogated rights must be both strictly necessary and proportionate to the emergency in question. The ECHR has stressed the importance of taking into account the nature of the right in question in making an assessment of necessity and proportionality, noting that while liberty is a derogable, it is a 'fundamental human right [involving] the protection of the individual against arbitrary interference by the State with his or her right to liberty.'  Whether other safeguards are in place, including habeas corpus and legal representation, will also be relevant. Moreover, any derogation must not be applied discriminatorily, and must be in accordance with other obligations under international law.

Procedure for Derogation and Supervision

Finally, there are procedural safeguards. Derogation clauses commonly require a state availing itself of derogation to inform other states party to the particular instrument of the provisions which it intends to suspend. The notification must clearly detail the rights from which the state is seeking to derogate, the reasons and the nature of the measures taken. The decision whether such an emergency has arisen is not a unilateral decision of a state, but ultimately rests with the treaty-based bodies (such as the European Court of Human Rights or the UN Human Rights Committee) that supervise the implementation of the treaty in question.

Derogation from one set of treaty obligations does not entail derogation from others. The procedural requirements of each treaty to which a state is party must be met.

Inalienable �non-derogable� rights applicable in all situations

The universal and inalienable nature of certain human rights is well established, as reflected in the derogation clauses themselves. As such, there is a core of rights that must be protected at all times. The list of �non-derogable� rights varies between treaties, but common to all are the right to life, freedom from torture and inhuman and degrading treatment or punishment, and freedom from slavery and the prohibition of retrospective legislation.

The ICCPR, as an international convention ratified by the Afghanistan, the US and UK, deserves specific attention. The ICCPR explicitly provides that the following rights are non-derogable: life (Article 6), torture or cruel treatment (Article 7), slavery (Article 8(1) and (2)), imprisonment due to contractual obligations (Article 11), legality in the field of criminal law, including the requirement of 'clear and precise provisions' (Article 15), recognition before the law (Article 16) and freedom of thought, conscience and religion (Article 18).

In addition, the UN Human Rights Committee has noted that the obligation to treat all detainees 'with humanity and respect for their inherent dignity' and the prohibitions on �abductions� or �unacknowledged detention� are non-derogable, and that no circumstances justify 'deviating from fundamental principles of fair trial, including presumption of innocence'. The right to a remedy (Article 2(3)) has also been described as a right that remains effective in time of emergency.

Moreover, the UN Human Rights Committee has noted the need to ensure continued procedural guarantees to protect these non-derogable rights, including judicial guarantees. This is in line with the ACHR that explicitly acknowledges 'the judicial guarantees essential for the protection of such rights' as also non-derogable, which have been held to include habeas corpus and minimum due process rights.

Finally, the certain treaties that protect specific rights or groups of persons, such as the Convention on the Elimination of All Forms of Discrimination against Women 1979 and the Convention on the Rights of the Child 1989 mentioned above, do not allow for any derogation from their provisions. As such, they form part of the core human rights treaty law applicable to state parties at all times.

Customary law

Parallel to the treaty provision, customary international law effectively obliges all states, regardless of whether they have ratified a relevant international or regional treaty, to respect certain rights and freedoms. The question whether particular rights have passed into customary law is subject to debate. Some commentators suggest that the rights contained in the Universal Declaration on Human Rights reflect customary law, while others refer to more restrictive lists, such as 'slavery, genocide, torture and other cruel, inhuman and degrading treatment.' The Restatement of Foreign Relations Law of the US for example adds extra-judicial executions, causing the disappearance of individuals, prolonged arbitrary detention and systematic racial discrimination.

The customary doctrines of 'state of necessity' and 'force majeure' provide that, in very exceptional circumstances, a state�s failure to comply with its human rights obligations is not unlawful. For example, the �state of necessity� doctrine has been interpreted as meaning that an act that was 'the only means of safeguarding an essential interest of the State against a grave and imminent peril' may be justified. 'Force majeure' in turn is restricted to responses to 'an irresistible force or to an unforeseen external event beyond its control which made it materially impossible for the State to act in conformity with that obligation or to know that its conduct was not in conformity with that obligation.'

However, rights which have 'jus cogens' status can never be abrogated, whether by customary doctrine or treaty provisions. Commentators differ on which rights have attained such status, with some suggesting that it largely reflects the core non-derogable rights in the ICCPR, and others the shorter list of non-derogable rights common to the 'three major human rights treaties' mentioned above.

relationship between ihl and human rights law

IHL and international human rights law intertwine and together form the body of law governing situations of armed conflict. The following is a brief summary of the inter-relationship between these strands of international law.

As described above, international humanitarian law comes into operation in times of armed conflict and applies beyond the termination of hostilities to a final resolution of peace. It is designed specifically to regulate the conduct of armed conflict, and to address the particular issues that arise therefrom. By contrast, international human rights law applies at all times; although it is not directed specifically at the peculiarities of war, it enshrines minimum standards relevant to all situations, including armed conflict. Temporally, the two strands of law therefore overlap and apply simultaneously during armed conflict.

The geographic scope of a state's obligations under treaty or customary international human rights law extends throughout its territory and beyond, to wherever the state has de facto control of territory or where it exercises its 'authority'. IHL applies throughout the territory of warring parties. As such, the purview of both bodies of law may cover measures taken on a state's own territory and hostilities conducted on foreign soil.

In time of armed conflict or other emergency, at a minimum states are obliged to protect a 'core' of rights under treaty and customary human rights law. In addition, under treaties to which states are party, they must protect a fuller range of rights, except insofar as the treaties have been properly derogated from and the measures taken are strictly necessary due to the emergency and proportionate to it. These human rights are guaranteed to all persons, without distinction. The nationality of individuals or their affiliation to parties to a conflict are not a basis for denial of human rights.

By contrast, while certain aspects of IHL seek to protect all persons (e.g. methods and means of warfare causing excessive suffering), many others depend upon the principle of distinction and apply only to certain categories of protected persons, such as civilians or prisoners of war (eg targeting and humanitarian protections). In general, IHL protects persons associated with one party to a conflict who find themselves in the hands of an opposing party.

In the event of apparent inconsistency in the content of the two strands of law, the more specific provisions will prevail: in relation to targeting in the conduct of hostilities, for example, human rights law will defer to more specific provisions (the lex specialis) of humanitarian law. As such, although the right to life is non-derogable, it is not considered violated where it is permitted under IHL, the lawful killing of a combatant. Derogation clauses in human rights treaties may explicitly reflect this, but where this is not specified it may be implied.

In most other cases, the two bodies will not conflict but will complement and supplement one another. Moreover, each strand provides a tool in the interpretation of the other; as such, human rights law in armed conflict is informed by the standards of IHL, and many provisions of IHL are in turn interpreted in the light of the fuller jurisprudence available from human rights law.

Finally, while IHL principally binds parties to armed conflict (state or non-state), international human rights law essentially imposes obligations on states and confers rights on individuals. In addition, however, human rights and IHL together form international criminal law, by virtue of which individuals may be responsible for serious violations amounting to crimes such as genocide, crimes against humanity - whether committed in time of peace or war - or war crimes. As discussed at Part IV of this paper, individuals may be held to account where they are directly or indirectly responsible for these crimes under international law.

PART VI: REFUGEES AND INTERNALLY DISPLACED PERSONS (top)

Mass displacement within and across borders is one of the most dramatic consequences of armed conflict. While international refugee law constitutes the main paradigm for the protection of forcibly displaced persons, both human rights law and international humanitarian law are relevant to the obligations of host states vis-�-vis the reception and treatment of persons forcibly displaced by conflict, including refugees and internally displaced persons.

Applicable law will vary depending on whether persons displaced by conflict are 'refugees�, within the legal definition of the term, or other persons displaced within a state or over national borders. This section highlights first the relevant law applicable to 'refugees' before addressing briefly the law applicable to internally displaced persons. Identifying the nature and scope of a state�s obligations involves an assessment of treaty and customary international law.

REFUGEES

Refugee Law

The Definition of a 'Refugee'

The 1951 Convention Relating to the Status of Refugees defines a refugee as any individual

� who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

The 1951 Convention continues to provide the general legal framework for refugee protection although regional standards have also been developed to supplement this definition. For example, the Organisation of African Unity (OAU) Convention on the Specific Aspects of Refugee Problems has broadened the grounds on which asylum can be claimed to include �external aggression, occupation, foreign domination, or events seriously disturbing public order in part or the whole� of the country or nationality of the refugee. However, there is no such regionally endorsed commitment among Asian countries, despite initiatives to impel such a process.

Of the countries that share a border with Afghanistan, only Iran, Turkmenistan and Tajikistan have become parties to the 1951 Convention (and 1976 Protocol). It is therefore necessary to consider general international law - as evidenced in part by the practice of states and international organisations - under which all states have obligations to refugees. There might be some dispute on the extent to which certain treaty obligations have become part of customary international law, but there is little disagreement about the fact that a core group of norms have acquired customary status and are to be presumed binding upon states that are not parties to the 1951 Convention. Paramount among these norms are the principle of non-refoulement and the obligation to treat refugees according to basic standards of human rights.

One issue that arises in determining refugee status is the nature of a state�s obligations where people en masse, as opposed to an individual, are fleeing persecution. While the 1951 Convention does not explicitly oblige states to recognise refugees en masse, it may still be in the best interest of both states and refugees to adopt a system of group recognition where the persecution in the country of origin indicates that every member of a particular group has a well-founded fear of persecution. Even before the current military action in Afghanistan, many individuals may have been entitled to recognition as refugees under the Convention because of the policies of the Taliban, as a result of a well-founded fear of persecution.

Another issue concerns the applicability of the 1951 refugee definition - centred upon the existence of an individualised well-founded fear of persecution - to persons fleeing armed conflict. The United Nation High Commissioner for Refugees� Handbook for Status Determination states:

Persons compelled to leave their country of origin as a result of international or national armed conflicts are not normally considered refugees under the 1951 Convention or 1967 Protocol. They do, however, have the protection provided for in other international instruments, e.g. the Geneva Conventions of 1949 on the Protection of War Victims and the 1977 Protocol additional to the Geneva Conventions of 1949 relating to the protection of Victims of International Armed Conflicts.

This approach, sometimes referred to as the �exceptionality approach�, requires that an asylum seeker fleeing a civil war has to show that the risk of persecution was individualised and went beyond the �ordinary� risk resulting from the armed conflict. However, there is no textual element in the Convention that supports the �exceptionality approach.� While it remains prevalent in certain judicial decisions, a significant body of judicial decisions and legal commentators refute this approach. It has been proposed that, in applying the Convention definition to refugees fleeing armed conflict, international humanitarian law should be used as a yardstick for determining whether a person is at risk of persecution. The link between international humanitarian law and refugee law means, for example, that in order to uphold the values that underpin international humanitarian law, young men and boys of fighting age who face a risk of persecution because of their unwillingness to participate in the commission of war crimes should be recognised as refugees.

Non-refoulement

The cornerstone of the system of international refugee protection is the principle of non-refoulement: host states are obliged not to �expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion� (Art. 33, 1951 Convention). Under the 1951 Convention, the only exceptional grounds on which a refugee can be expelled or returned are national security and the commission of a particularly serious crime.

Is the closure of the borders to all potential refugees a violation of the principle of non-refoulement? The 1951 Convention does not contain a provision similar to Article II(3) in the OAU Convention, which spells out that �rejection at the frontier� is a measure tantamount to return or expulsion. However, the practice of states since the adoption of the 1951 Convention suggests that �the broader interpretation of non-refoulement has established itself� and that, as a result, states should not, as a rule, reject potential refugees at the frontier.

While the closure of the border may, arguably, constitute a form of refoulement, it could still be argued that exceptional circumstances and overriding national security concerns justify closure under the 1951 Convention and under general international law. Some support for this argument can be found in the 1967 UN Declaration on Territorial Asylum which states that �Exception may be made to the foregoing principle [non-refoulement] only for overriding reasons of national security or in order to safeguard the population, as in the case of a mass influx of persons� (Art. 3(2) � emphasis added). The 1951 Convention does not, however, include the need to safeguard the local population as a possible ground for justifying the refoulement of refugees. Compliance with the terms of the Convention would therefore require that states parties show that their decisions are based on national security, or that there is a direct link between the safeguarding of the local population and the consequences of mass influx, on the one hand, and national security on the other. Moreover, although evidence of opinio juris might be more difficult to establish, the predominant state practice in situations of mass influx has been to accept refugees without closing borders. Whatever its actual impact, the existence of a large international operation within the border of Iraq aimed at offering basic security to civilians is not matched at the time of writing by anything similar in Afghanistan.

The principle of non-refoulement, while central to refugee law, has also become part of human rights law. For example, the 1984 Torture Convention prevents the expulsion, return or extradition of a person to a state �where there are substantial grounds for believing that he would be in danger of being subjected to torture�. Therefore, as far as the present situation in Central Asia is concerned, states that are not parties to the 1951 Convention are still obliged not to return Afghan civilians to Afghanistan if they would be at risk of torture. Furthermore, the more general refugee law-based notion of non-refoulement, which includes the obligation not to send back persons at risk of any form of persecution and not only those facing the specific risk of torture, appears to have sufficient support in state practice and opinio juris as to form part of customary international law.

Persons Responsible for Serious Crimes

Under refugee law, as well as under international criminal law, host states cannot offer sanctuary to persons who have committed crimes under international law. In particular, the exclusion clauses in the 1951 Convention provide that when �there are serious reasons for considering' that a person has committed certain types of crimes (crimes against peace, war crimes and crimes against humanity, serious non�political crime, or other acts contrary to the purposes and principles of the United Nations) he or she ought to be excluded from refugee status. As for states that are not party to the 1951 Convention, the obligation not to offer sanctuary to persons who have committed crimes under international law derives from international human rights and international criminal law, and from Security Council resolutions adopted under Chapter VII.

International Humanitarian Law

If neighbouring countries were party to the conflict, international humanitarian law would also be relevant to refugees crossing international borders. A host country is obliged to continue to protect refugees who arrived prior to the conflict from a country with which it is engaged in armed conflict. Moreover, Additional Protocol I states that refugees already in the territory of the host country at the beginning of hostilities are to be considered protected persons (Art. 73, Additional Protocol I). In any event, these provisions are only relevant where neighbouring countries are belligerents in the conflict.

Therefore, the obligations concerning the protection of Afghan refugees in neighbouring countries will have to be justified within the framework of refugee and human rights law. Any restriction on those rights would in turn have to be justified according to the derogations or limitation clauses in that law.

internally displaced persons

Internally displaced persons, unlike refugees, have not crossed an international border. They often share with refugees the most traumatic aspects of displacement, but their legal status is different. Although there is no specific treaty regulating the status and rights of internally displaced persons, states� obligations towards the internally displaced derive from international humanitarian and human rights law. The rules of international humanitarian law relevant to civilians in armed conflict apply to the treatment of those civilians who are internally displaced persons. Such persons are entitled to the protection due to any civilians in armed conflict, as discussed at Part V, Humanitarian Law, above. Human rights law, discussed at Part V, is also relevant to the treatment of displaced persons (as of refugees) by the state on whose territory they find themselves. In recent years, attempts have been made at codifying the basic principles and rules on internal displacement, enshrining the applicability of effective human rights protection to displaced persons.

Human Rights Law and all displaced persons

The obligations incumbent on states to respect and ensure the human rights of all persons in their territory or subject to their jurisdiction are discussed at Part V of this paper. These obligations may apply to persons who are refugees or displaced persons, whether across borders or within their own state.

In respect of displaced persons who cross international borders (whether or not 'refugees'), the question or whether that person may be returned to his or her country of origin is addressed by international human rights law. For example, a person is entitled not to be extradited or transferred to a state where he or she would suffer violations of non-derogable rights, such as freedom from torture or cruel, inhuman treatment. The obligation on states not to cause someone to be sent to a regime where there are reasonable grounds for believing that they will suffer such treatment, whether at the hands of states officials or non-state actors, applies at all times and in respect of all persons within the state's jurisdiction. Hence, while the rights guaranteed under human rights law may overlap with those afforded to 'refugees' under refugee law, international human rights law applies to a broader category of persons.

INTERIGHTS is grateful to Dr. Guglielmo Verdirame, Fellow, Merton College, Oxford for contributing this part of the paper.

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