Dr. Alexandre Skander Galand is a Newton Postdoctoral Researcher at the Center for Global Public Law, Koç University.
We produced a Bibliography that systematically organises the literature on the effects of international human rights law on other branches of international law and in general international law. We also published a Reader of top fifty cases from various courts and tribunals in international law. The reader presents a survey of the effects of IHRL as manifested in international court decisions across five branches of international law, namely, international humanitarian law (IHL), international criminal law, international environmental law, international trade law and international investment law.
Through a series of blog posts at the CGPL webpage we summarise our key findings based on the Reader of Top fifty cases. In the first post of this series, we start with our findings with respect to the effects of IHRL on IHL.
IHRL and IHL: Effects or Relationship
One of the difficulties in compiling a list of cases exemplifying the effects of IHRL on IHL is to distinguish cases addressing the relationship between these two branches from cases on the effects of the former over the latter. Indeed, most of the international jurisprudence we have on IHRL and IHL addresses the relationship between these two branches but, does not necessarily provide any evidence concerning effects of IHRL on IHL.
The ICJ rulings in Nuclear Weapons Advisory Opinion (1996), Wall Case (2004) and Armed Activities Case (2005) (see p. 30-31 of the Reader) have certainly fuelled the debate on how IHL and IHRL interact and what the appropriate relationship between these branches should be. In particular, the legal academic community engaged intensively in deconstructing the lex specialis formula (see p. 14-16 of the Newton Bibliography). In the Nuclear Weapons and Wall advisory opinions the ICJ asserted that in some situations (of armed conflict) IHL should be applied as lex specialis. The reference to lex specialis was however omitted in the Armed Activities Case. This was also the case in the ICJ’s Advisory Opinions on the Wall and on Nuclear Weapons. These obiter dicta provided that IHRL may be applicable in situations of armed conflict, when IHL either does not or cannot regulate a given situation. From these cases, and in particular the Armed Activities Case, one can postulate that even if IHL does regulate the situation, IHRL may complement IHL. By defining the relationship between those branches, and leaving space for co-application, these cases, at the very least, recognised the presumption that IHRL can have effects on IHL.
The effects of IHRL on IHL through complementarity: Duty expansion and detail filling
The ICJ ‘relationship’ case law has been taken up by other authorities such as regional human rights courts and domestic courts and have been employed to argue for IHRL effects in IHL interpretation.
The Inter-American Court of Human Rights (IACtHR) defined the relationship between IHL and IHRL in more open terms then the ICJ. For instance, in the Mapiripan case (see p. 20-23 of the Reader), the IACtHR held that both bodies of law either “complement each other or become integrated to specify their scope or their content. If one adopts a complementarity approach, as suggested by the Court, then IHRL is capable of bringing substantive positive obligations to the scope of protections in IHL. (para 115). . In other cases, such as Operation Genesis, (see p. 36-37 of the Reader), the IACtHR read IHL’s core through the lens of IHRL positive and negative obligations. Hence, IHRL added some substantive obligations to a situation where IHL was applicable as a lex specialis.
In Hassan v United Kingdom (see p. 26-28 of the Reader), the European Court of Human Rights also showed how IHRL and IHL may complement each other. In this case, IHRL influenced the overall legal framework applicable to internment reviews, i.e. IHRL provided detailed regulations in relation to how a ‘competent body’ as provided in IHL respects the rules of impartiality, fair procedure and so on. IHRL was thus employed to fill in the details of certain IHL provisions. In the Targeted Killing Case (see p. 28-30 of the Reader) of the Israeli Supreme Court, too, IHRL was applied to fill gaps in IHL. If there is a lacuna in IHL, the Court held that it would resort to IHRL to find the applicable law.
The effects of IHRL on IHL as providing a forum of adjudication
An important effect that IHRL has had on IHL is its provision of an institution for adjudication of IHL violations. IHL is one of the branches of international law that does not have a specialised court. Thus, most violations of IHL are adjudicated before human rights bodies, or criminal tribunals, and increasingly domestic courts
The judgments of human rights courts, therefore, foremost fill an enforcement gap in IHL and allow individuals to argue for violations of IHL. The Santo Domingo Massacre Case (see p. 31-33 of the Reader) is a significant example in this regard. In this case, the Inter-American Court of Human Rights found that a machine gun attack by the Colombian Air Forces and their failure to comply with IHL rules (the principle of precautions in attack) endangered the civilian population and thus amounted to a breach of the rights to life and personal integrity, even if nobody had been killed or injured. In other words, IHRL supplemented IHL by directly offering redress for IHL violations via the victim’s right to an effective remedy.
Human rights courts further allow for recognition of a situation as an armed conflict. Hassan case is illustrative of this point because it is the first case before the European Court of Human Rights where a State recognizes that there was a situation of armed conflict – with the notable exception of the inter-State cases Cyprus v Turkey (see p. 37-38 of the Reader), which where examined by the Commission (p. X of our Reader).
In other cases, when IHL is not directly invoked, such as the cases occurring in Chechnya or South East Turkey, the human rights judgments have shown that only IHRL can be applied in situations of non-international armed conflict. Isayeva v Russia is one such case (see p. 39-40 of the Reader). Like the other cases where IHL was not invoked despite the existence of an armed conflict, Isayeva v Russia was adjudicated from a law enforcement perspective, while IHL was in the background. Since the situation under scrutiny occurred in the context of an armed conflict, IHL was in principle applicable and could have modified the level of obligations lying upon Russia. We found that the non-invocation of IHL and, in particular, the application of IHRL without recourse to the lex specialis maxim modifies the assessment of States’ conduct in armed conflicts. Given that for political reasons States are reluctant to admit that their military forces are involved in an armed conflict, having human rights courts monitoring such situations provides a forum of adjudication where States might decide to account with ‘higher’ standards of protection for the rights and freedoms of individuals caught in the scourge of war. By the same token, the strict application of IHRL in situations that occurred against the backdrop of an armed conflict, may indeed lead some States to plan their military operation so as to comply with IHRL in toto even if IHL could have allowed for ‘less restrictive standards’.
In sum, IHRL has increasingly offered IHL elements of individual protection it otherwise lacks: acting as a vehicle for concretisation of IHL obligations, acting as a gap filler and acting as a direct or indirect enforcement mechanism. These effects are significant illustrations of the ground-breaking potential that human rights law and its mechanisms has for the protection of the fundamental rights of individuals caught in the crosshairs of armed conflicts.
* I would like to thank Prof. Başak Çalı and Dr. Valentina Azarova for their comments and edits on previous drafts of this post.