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Within Norwegian defence and foreign policy, the establishment of an international legal order and the global rule of law have been identified as key objectives. As articulated in various Norwegian policy docu- ments and statements, these objectives appear to presume (i) that there exists a harmonious and complementary relationship between human rights and humanitarian law, and (ii) that the convergence of the two bodies of law is necessarily a good thing. This policy brief provides a contextual and conceptual overview of the debate on the relationship between human rights and humanitarian law, in order to set out for Norwegian policymakers the full range of approaches to the issue. Kristin Bergtora Sandvik Peace Research Institute Oslo (PRIO) New operational challenges for military plan- The realization of an international legal order development will make armed conflict and ners, force commanders and the individual and the global rule law are important objec- occupation more human. Arguing against the soldier continue to be engendered by the rise tives within Norwegian defence and foreign co-applicationists, separatists hold that conver- of what have been labelled ‘new wars’. During policy, where there is a presumption that an gence is impossible owing to differences in the 1990s, internal conflict involving one or the origin or character of the two bodies of several non-state actors, rather than interna- IHRL will make war more human. In reality, law: legal interpretation has limits and cannot tional conflict between state parties, became however, the international, regional and na- solve what amounts to irreducible political tional institutions that are involved in the conflict. The sceptics interrogate the political work of determining the IHL–IHRL relation- agendas underlying the positions of both the increasingly blurred, and the percentage of co-applicationists and the separatists, attempt- civilian casualties rose drastically. At the same standard-setting exercises, fact-finding mis- ing to uncover the assumptions that underpin time, the ascendancy of human rights chal- the debate. And, in response to the pervasive lenged the international community to re- problems of practicality that have increasingly think its obligation to offer protection against dogged this debate, a fourth logic is currently human suffering. With the development of These bodies include the UN General Assem- emerging, which may be labelled the opera- the doctrine of the ‘responsibility to protect’ bly, the UN Security Council, various special tional perspective. According to this view, co- advisers and representatives to the UN Secre- application of IHL and IHRL results in a political and military rationale for the use of tary-General, the Human Rights Council and normative vagueness that engenders chaos force by the international community. The and insecurity on the ground, and the best emphasis of international operations has Rights, as well as various UN working groups way of protecting civilians is through a legal increasingly shifted from peacekeeping to and the International Committee of the Red framework that facilitates the fulfilment of Cross. International, regional and select na- dates. Since 2001, the ‘global war on terror’ tional courts have played key roles in this and the prolonged military engagements in process – most prominent being the Interna- On-going Transformations of Interna-
Iraq and Afghanistan have challenged the tional Court of Justice (ICJ), the European tional Law
Western legal and moral order on a profound level. The soldiers fighting these wars are American Court and Commission. Important The debate about the relationship between increasingly subcontracted through private contributions have also been made by the IHRL and IHL is taking place in the context of military corporations, a development only cluster of international criminal courts that significant changes in the content and for- weakly regulated by international law. Fur- came into existence in the 1990s, particularly mats of international law, as well as how it is thermore, protracted urban violence, the the International Criminal Court and the made. Three key aspects might be noted here. criminal tribunals for former Yugoslavia and First, international law is being humanized, manned drones) and the use of new battle- Rwanda. Significant national contributions particularly through the rise and proliferation fields (cyberwar) raise the possibility of ‘end- have been made by the Supreme Courts of the United States, Israel and the United King- institutional structures and processes of in- dom. In addition, military planners, force ternational organizations (IO) have gradually In international and domestic politics, these become more legalized, and the organizations experiences have led to an increased emphasis minations on a case-by-case basis. In the past themselves have turned into important pro- on the linkages between legality, legitimacy decade, there has been an avalanche of schol- ducers of ‘secondary international law’ and, more recently, operational efficiency. At arly publications on the relationship between through standard-setting activities, giving rise the heart of this ‘better war’ discourse are IHL and IHRL in public international law to a proliferation of soft-law regimes, non- contestations over the relationship between journals, as well as in more specialized jour- binding in form, that include recommenda- international humanitarian law (IHL) and nals in the fields of human rights, humanitar- tions, guidelines, codes of practice and stand- international human rights law (IHRL). This ian law, military law, security law, compara- ards. Third, as questions are increasingly relationship has important legal and ethical tive law, and recently also international being raised about the legal responsibilities of implications for the use of military power: It non-state actors, focus is being directed at the determines the responsibility of states and accountability of IOs for human rights viola- senior commanders; it is a ‘bottom-up’ prob- This policy brief aims to provide a contextual tions, particularly in the area of peacekeeping lem from the perspective of the soldier need- and conceptual map of the debate on this ing clear guidance to avoid behaviour that issue. It suggests that the struggle over the might entail criminal prosecution; and it may IHL–IHRL relationship is being shaped by Origins of IHL and IHRL
be a life-and-death issue for captured enemy ongoing changes to the background context of fighters, irregular combatants and civilian international law, and that the debate is char- A rudimentary introduction to IHL and IHRL victims. The relationship between IHL and acterized by four distinct legal logics: The is necessary to contextualize the ongoing push IHRL is also important for establishing ac- dominant co-applicationist position sees con- for convergence. The objective of international countability in the aftermath of conflict. vergence as a desirable development for IHL, humanitarian law is to resolve matters of for IHRL, or for both, and believes that such a humanitarian concern arising directly from an armed conflict, whether of an international al states, it must be ratified by those states, case law and legal scholarship. The ‘co- or non-international nature. The rules restrict and states may enter substantial reservations application’ position can be understood as a the rights of parties to a conflict to use what- upon ratification. Whereas IHL allows for no progress narrative, one that sees the conver- derogations (exceptions), human rights trea- gence between IHL and IHRL as positive and might choose, and seek to protect people and ties permit derogations during public emer- desirable for IHL, for IHRL or for both. This property affected, or liable to be affected, by gencies, which either explicitly or implicitly position sees convergence as having already the conflict. While the origin of IHL dates taken place and the co-applicationists are thus back to the 18th century, contemporary rules primarily interested in exploring the technical were codified in 1949, when the four Geneva Different de facto situations activate different interpretive moves that can be carried out Conventions were adopted. The first three legal regimes. IHL travels with armed forces with existing legal tools to resolve potential or dealt with the wounded and sick, shipwrecked abroad and is by nature extraterritorial, while actual normative conflicts between the two individuals and prisoners of war. The fourth IHRL has traditionally been linked to the bodies of law. Co-applicationists argue that dealt with civilians in the power of an oppos- territorial jurisdiction of individual states. In despite persisting normative differences, early ing belligerent and civilians in occupied terri- peace, all applicable human rights apply. In drafters imagined that IHL and IHRL could tory. Only in 1977 did two Additional Proto- the case of disturbances, riots/unrests, disas- function in harmony. Four key ideas inform cols extend the rules governing the conduct of ters or other events deemed to give rise to a the co-application narrative: that the codifica- hostilities to victims of international and non- state of emergency, human rights apply with tion and institutionalization of IHRL has international armed conflict. Together with permitted derogations. In non-international engendered an inevitable expansion into IHL; customary law, these instruments constitute armed conflict between the states and armed that IHRL impacts IHL before, during and IHL. Central to the interpretation and imple- group; between armed groups, and between after conflict; that IHRL is more than a gap- mentation of this body of law is a set of core the state and organized groups with territorial filler and reshapes key concepts of IHL; and principles that include distinction, military control, relevant non-derogable human rights that the application of IHRL in the context of necessity and proportionality. ‘Distinction’ apply alongside the relevant provisions of armed conflict reshapes roles and relation- requires combatants to be distinguished from IHL. Yet, in international armed conflict the civilians, and attacks to be limited to legiti- application of non-derogable human rights mate military objectives. ‘Military necessity’ provisions alongside IHL has in recent years The ‘separatists’ hold that convergence is requires that combat forces engage only in been a tenuous issue. What is the nature of impossible owing to the different origins and those actions that are deemed necessary to character of IHL and IHRL. Legal interpreta- achieve a legitimate military objective. ‘Pro- Should they apply side by side? What legal portionality’ prohibits the use of force beyond principles are used to define their relation- amounts to irreducible political conflict. IHL the level required to accomplish the chosen ship? What are the doctrinal legal obstacles to is by nature conservative, taking armed con- flict as a given, while IHRL is inspired by collective action and social justice struggles. At the outset (around 1945), IHL and IHRL There are also systemic differences pertaining developed in the aftermath of the devastation were systematically treated as two separate to the nature of redress provided: breaches of of World War II and the Holocaust. Human branches of public international law that were IHL call for action by one state against anoth- rights instruments include the Universal to be interpreted in isolation from each other. er, while IHRL is the province of individual Declaration of Human Rights (1948) and the From the 1960s, this approach was gradually complaint. In addition, the two systems allo- international conventions on Civil and Politi- rejected by the UN Security Council, the UN cate fundamentally distinct roles to the indi- cal Rights (1966); Economic, Social and Cul- tural Rights (1966); the Elimination of Racial man Rights and various states, which gradual- Discrimination (1966); the Elimination of ly began to see IHL and IHRL as complemen- While criticizing the political motives some- tary. This development accelerated from the times underlying separatist arguments, the against Torture (1984); and on the Rights of ‘sceptics’ suggest that the co-application para- the Child (1989). Unlike IHL, IHRL has de- digm has significant costs. By aiming to re- The Debate
veloped a strong implementation framework, shape the legal relationship between military primarily through the institutionalization of Broadly, four different approaches can be individual petition rights and through the application may delegitimize both IHL and discerned in the debate on the relationship courts mandated to adjudicate on a range of among co-applicationists of the difficulties of convergence. These are the respective posi- civil, political, social, cultural and economic determining how co-application applies in tions of the ‘co-applicationists’, the ‘sepa- practice, little energy has been invested into ratists’, the ‘sceptics’ and the ‘operationalists’. complex matrix of rights and obligations: state tackling how human rights law will actually be parties are obliged to respect, protect and fulfil In recent years, the position advocating for a applied in the day-to-day military operations human rights. However, for a human rights that characterize armed action abroad. The convention to become binding upon individu- ‘sceptics’ also question the assumption that more formal rights means greater enjoyment of rights and more humanitarian outcomes. A key element of the co-application frame- ‘in the hands’ of the authorities – typically in Moreover, they suggest, the legalistic insist- work has been the role allocated to the lex cases of abduction, detention or ill-treatment. ence on convergence overestimates the practi- specialis principle in governing the relation- Moreover, human rights bodies aim to hold states responsible for extraterritorial killings this principle, a law governing a specific issue when the state controls the infliction of the Recently, there has been a call for operational- overrides a law governing a general issue. The violation and should have foreseen the out- izing the law of armed conflict. Previously International Court of Justice (ICJ) has sug- come. A number of jurisdictions are actively confined to commentators with a military gested that while some rights may be exclu- pushing back against these developments. sive matters either of international humanitar- vagueness, the legalistic tendencies and the ian law or of human rights law, others may be A third contested issue turns on the use of the lack of practicality of the co-applicationist matters of both branches of international law; concept of ‘proportionality’ within both IHL position is now also being voiced by humani- and that, when both bodies of law apply, IHL and IHRL. The concept has a different func- tarian law specialists, who see it as a threat to is lex specialis. However, while extensively tion within each body of law and employs the legitimacy of IHL. The argument is that discussed in academic scholarship, the exact distinct balancing techniques to determine overly technical reliance on prescriptions in legal standing and meaning of the ICJ doc- the legality of an act. In IHL, proportionality conventional and customary law simultane- trine, and how the lex specialis principle is to springs from the prohibition against indis- ously handicaps decision makers and under- be applied, is unclear. While previously of- criminate attacks and attacks likely to cause mines civilian protections. Contemporary fered as cornerstone of the co-application disproportionate harm to civilians. Any inci- international operations entail a set of new argument, even co-applicationists appear to dental loss of civilian life, injury to civilians, operational dilemmas, but frequently suffer have recognized the limited utility of lex spe- damage to civilian objects or a combination of from a lack of clarity regarding the use of cialis in furthering their agenda. the two must not be excessive in relation to force. By failing to provide ‘bright lines’, IHL the concrete and direct military advantage antic- offers insufficient guidance on how to address A second important theme in the convergence ipated from a resort to the use of armed force. this conundrum. If legal norms are to be debate concerns the role of extraterritorial The proportionality test to be applied in hu- effective in a military context, they must be application of human rights treaties. Most man rights cases envisages restrictions of clear and not so complex as to prevent practi- human rights treaties contain a provision individual rights for the necessary safeguard cal application. The operationalist position according to which state parties undertake to of public interests: human rights law requires advocates a legal framework that facilitates secure the protection of the rights in question that the use of force be proportionate to the fulfilment of military objectives. Civilian for individuals within their jurisdiction. Juris- aim of protecting life. IHL accepts the use of protection is best achieved through clear and diction involves the assertion of authority, lethal force and tolerates the incidental killing factually or legally. The armed forces of a state and wounding of civilians not directly partici- can violate IHRL through acts and omissions pating in hostilities, subject to the require- Does Co-application Make War Better?
outside the state’s national territory when ments of proportionality. In IHRL, on the contrary, lethal force can only be resorted to if Illustrating the life-and-death nature of the international armed conflict as part of a there is an imminent danger of serious vio- struggle over legal interpretive principles, the peacekeeping or peace enforcement mission. lence that can only be averted by such use of remainder of this policy brief examines three The co-applicationists have achieved signifi- force. While co-applicationists support the use subdebates within the discussions on conver- cant victories over the past decade, successful- of IHRL’s proportionality considerations in gence: on lex specialis, extraterritoriality and ly altering and extending the scope of state the context of armed conflict, proponents of the principle of proportionality. As these responsibility. Human rights bodies have the operational perspective argue that this determined that extraterritorial jurisdiction represents a distortion of legal principles applicationist approach currently enjoys the requires ‘effective overall control over a territo- amounting to ‘lawfare’ – the use of law as a upper hand, the debate on convergence is far ry’. Absent control over territory, human rights bodies have recognized that human rights apply extraterritorially when a person is THE AUTHOR
THE PROJECT
Kristin Bergtora Sandvik is a Senior Re- The policy brief is a deliverable from the pro- PRIO is a non-profit peace research institute searcher at PRIO. Her research focuses on ject ‘Humanitarian Law, Human Rights and the interface between humanitarianism, vio- the Quest for Legality: What Choices in the research on the conditions for peaceful rela- Face of Imminent Danger?’ which examines tions between states, groups and people. The the co-application between human rights and institute is independent, international and interdisciplinary, and explores issues related to al facets of peace and conflict.

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