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PART V: LAWS APPLICABLE IN ARMED CONFLICT
INTERNATIONAL HUMANITARIAN LAW
Where and when IHL applies
Armed Conflict: International or
Non-International
Territorial and Temporal Scope of IHL
TREATY LAW
CUSTOMARY LAW
Targeting: The Principle of Distinction and Proportionality
Directing Attacks against Military Objectives
Persons
Objects
Indiscriminate Attacks
Necessary
Precautions in Attack
Methods and Means of Warfare: Unnecessary Suffering
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
REFUGEES
Refugee Law
International Humanitarian Law
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.
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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.
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Methods and Means of Warfare: Unnecessary Suffering
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.
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Humanitarian Protections
IHL governs not only the conduct of hostilities on the
battlefield, addressed above, but also affords protection to persons
in the hands of �the enemy�, namely prisoners of war, the sick and
wounded, and civilians who find themselves in territory controlled by
opposing forces. The key provisions of the Geneva Conventions provide
that such persons are considered �protected� from the moment when
they fall into the hands of the adverse party.
All persons taking no active part in hostilities are entitled to
protection under IHL. The protections are due both to those who have
never taken part in hostilities and to those who once did but are now hors
de combat. Common Article 3 to the Geneva Conventions, which is
customary international law applicable in all situations, provides
that such persons must be treated humanely, without discrimination,
and specifically prohibits violence to life and person, including
cruel treatment, hostage-taking, outrages upon personal dignity and
carrying out of sentencing and executions without certain judicial
guarantees.
Beyond Article 3, more detailed provisions are contained elsewhere in
the Geneva Conventions. Many of these provisions may be considered to
reflect and give expression to fundamental principles of IHL, in
particular the principle of humanity, and as such reflect customary
law.
Civilians
The duty to protect the civilian population is at the heart of IHL.
Rules regarding targeting of civilians are described above, as is
Common Article 3 provides humanitarian protection to all persons
taking no active part in hostilities. The Fourth Geneva Convention,
which applies to civilians that 'find themselves ...in the hands of a
Party to the Conflict or Occupying Power of which they are not
nationals,' and AP I set out additional humanitarian protections.
IHL obliges the power into whose hands protected persons fall to
refrain from violating the rights of civilians but also actively to
take necessary steps to protect their rights. IHL makes explicit
reference to, for example, 'respect for persons, honour, family
rights, their religious convictions and their manners and customs,'
the rights to regular, fair judicial procedures and property rights.
Particular protection for children, with particular regard being due
to their care is included. IHL also specifically recognizes that
nationals of an adversary resident in a state�s territory are
entitled to certain human rights protections. These rights are
supplemented by those enshrined in human rights law, which applies to
all persons within a state�s territory and subject to its
jurisdiction, irrespective of nationality, as described below.
The Fourth Geneva Convention provides that an �occupying power�
shall �allow and facilitate rapid and unimpeded passage� of relief
operations, while AP I obliges a party with control over non-occupied
territory to conduct such relief operations for the benefit of
civilians. Arguably, consistent with the positive duty to protect the
civilian population, forces with air supremacy and more control than
opposing forces on the ground, should endeavour to respect the
principle underlying this AP I provision.
Prisoners of war (POWs) and Wounded or Sick
Under the rules of targeting discussed above, while a person who
takes part in hostilities is a military objective and may be attacked,
the moment that person surrenders or is rendered hors de combat,
he or she becomes a prisoner of war or a sick and wounded person,
entitled to protection. That protection is provided for in common
Article 3 and the First and Third Geneva Conventions relating to the
treatment of the 'wounded, sick and shipwrecked ' and �prisoners of
war� respectively. As noted above, these Conventions are binding as
treaty law, but the key provisions are in any event customary in
nature, as is common Article 3.
Prisoners of Wa
The Third Geneva Convention imposes limits on those who are
entitled to 'prisoner of war' status under the Convention. These
include members of the armed forces of another party, as well as
members of militia or volunteer corps, provided they satisfy certain
conditions, such as 'being commanded by a person responsible for his
subordinates; having a fixed distinctive sign recognisable at a
distance; that of carrying arms openly; that of conducting their
operations in accordance with the laws and customs of war.' AP I
recognises some loosening of these criteria, and commentators have
noted the need for flexibility in order 'to avoid paralyzing the legal
process as much as possible and, in the case of humanitarian
conventions, to enable them to serve their protective goals.'
Among the most basic protections owed to POWs under the Convention is
the duty to keep them from danger, and to supply them with food,
clothing and medical care. Notably, they may not be subject to any
coercion in order to extract information from them and are entitled to
disclose only their names and date of birth and rank or position
within the armed forces. POWs may not be subject to any punishment, or
reprisal for action taken by the forces on whose side they fought. A
POW should not then be prosecuted by the capturing power for fighting
on behalf of his or her armed forces, although, consistent with the
duty to prosecute war crimes, serious violations of IHL are subject to
prosecution. Other detailed rules regarding, inter alia,
personal possessions, camps, structure, complaints and
repatriation are set out in the Convention and Protocol itself.
In any event, if the prisoners in question do not qualify for POW
protection under the Geneva Convention itself, to the extent that
certain of the provisions of that Convention are derived from the
principles of humanity (and military necessity), they may apply as
customary law. At a minimum, the duty to treat all persons who take no
active part in hostilities humanely, without discrimination, made
explicit in common Article 3, is clearly binding as customary law for
all conflicts.
Once again, human rights provisions, outlined below, apply to
prisoners of war on a state's territory or under its jurisdiction and
supplement the specific provisions of IHL.
Sick or Wounded
With regard to the sick or wounded, as noted above they may not be
subject to attack and, as with all persons hors de combat, they
are entitled to humane treatment. In addition, there is a positive
obligation under the First Geneva Convention to search for and collect
the sick and wounded. They must be protected, cared for and their
medical needs attended to. To this end, protection must also be
afforded to medical personnel and equipment.
The First Geneva Convention concerned only the injured or sick
among the armed forces. However, AP I deems it to cover also civilians
and others in medical need. Even when AP I is not binding as treaty
law, the principle of caring for sick and wounded civilians is
consistent with the basic principle of humanity and the general duty
to protect civilians, under customary law.
Responsibility for Violations of IHL
Parties to an armed conflict are bound to respect the applicable
rules of IHL. They will be responsible for violations of those rules
by their own armed forces, and for violations by other irregular
forces under their 'overall control'; such control arises where the
Party 'has a role in organising, coordinating or planning the military
actions of the military group.'
Moreover, States party to the Geneva Conventions are bound to 'ensure
respect for' the Conventions. Encouraging or facilitating violations
by others is clearly inconsistent with this conventional obligation,
owed by the States party to the Conventions. These are
obligations erga omnes (meaning those which are owed not only
to other parties to the treaty but to all states). These
considerations are relevant to assessing whether, and if so which,
States are responsible for violations committed by the various
factions fighting in Afghanistan.
Finally, while not all violations of IHL carry individual criminal
responsibility, serious violations may also amount to war crimes for
which individuals can be held to account before national or
international courts. As discussed at Part IV of this paper,
responsibility may be direct - for committing, ordering or aiding and
abetting the commission of violations - or indirect, for superiors who
fail to take necessary and reasonable measures to prevent violations
by formal or informal subordinates.
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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