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At a national level, the concept of “human rights” refers to the rights claimed and acquired over time by people in relation to their leaders, such as the Magna Carta or the Declaration of the Rights of Man and the Citizen proclaimed in 1789 in the wake of the French Revolution.
At an international level, the expression “human rights” covers a branch of international law that began developing in 1945 in the context of the Charter of the United Nations and which has resulted in, amongst other things, the adoption in 1948 of the Universal Declaration of Human Rights as well as the International Covenants on Civil and Political Rights (ICCPR) and on Economic, Social, and Cultural Rights (ICESCR). The Preamble to the Charter of the United Nations establishes a link between the respect for fundamental human rights and the maintenance of peace around the world. One of its underlying premises is as follows: a State that attacks its own citizens eventually attacks its neighbors, thus endangering international peace and security. The Charter of the United Nations therefore seeks to reestablish the twofold social contract for the international and national community, by regulating not only the relations between States but also the relationship between each State and its own population. The promotion and encouragement of respect for human rights and fundamental freedoms for all, without distinction as to race, sex, language, or religion, thus appears as both an end in itself and as a means of resolving international problems (Art. 1.3 of the UN Charter). Respecting human rights is a responsibility of sovereign States toward their population but also a limit to sovereignty in international relations.
Human rights are often split into two different categories: economic, social, and cultural rights, on the one hand, and civil and political rights or public freedoms, on the other. The former assume that the State guarantees services, benefits, and rights for all citizens, such as the right to health, education, or work. The latter assume that the State abstains from interfering in or limiting fundamental rights and freedoms such as the right to life, prohibiting torture and arbitrary detention, freedom of conscience, expression, association, and the like.
These rights enshrine international recognition for human dignity and equality between people and define the essential conditions for respect for individuals within States. There is a theoretical tension between these two families of rights, associated primarily with the Cold War period when respect for public freedoms was opposed to economic and social rights, such as the right to work.
In order to avoid any hierarchical ranking of such rights being used to suggest that one is subsidiary to the other or justify their being breached, it is stated that human rights are indivisible, inalienable, and universal.
Human rights are contained in international and regional conventions but also in technical documents, such as those setting out minimum standards or requirements for the treatment of individuals, which are adopted by consensus in the form of resolutions by United Nations bodies that have a mandate in this area (I–II).
Whilst human rights are recognized at an international level, it is within national territories that individuals must exercise them, in the context of the political and legal relationship that links the State to its citizens. It is also first and foremost to their national courts that individuals are entitled to bring complaints of breaches of their rights they have suffered at the hands of officials of the State or their own government. This creates more political than legal obstacles, illustrating the weaknesses in the international system of human rights protection (III). There are, however, possibilities for international or regional recourse for the most serious breaches (IV).
For many years, international humanitarian law and human rights have been viewed as isolated branches of international law. In simple terms, human rights were applied principally and fully only in periods of peace and created obligations on the State toward its population and territory. International humanitarian law, meanwhile, was applicable to situations of armed conflict and created obligations for the State vis-à-vis the population and territory of the other Party to the conflict (V). This dichotomy has been challenged by the diversification of types of armed conflict, on the one hand, and the militarization of the management of internal security by States on the other. The definition of armed conflict has become more complex, with the intervention of non-state armed groups operating on or across the territory of several States, with or without the control of the States concerned. It has also become more complex with the refusal of certain States to recognize the existence of an armed conflict on their territory and their justification of the use of armed force in the name of reestablishing public order.
The debates concerning the law applicable to fighting international terrorism have illustrated the necessity of redefining the interaction and application of these two branches of international law. The selective application and restrictive interpretation of the rules of international humanitarian law and human rights have resulted in the creation of legal black holes, depriving the most vulnerable people of any legal protection.
International criminal courts have intervened to recall the joint and complementary application of human rights in situations of unrest or armed conflict, to clarify the relationship between these two branches of international law, and to confirm the extraterritorial application of human rights in certain situations, such as occupation and detention.
Human rights therefore play an important role in those instances not covered (or not adequately covered) by international humanitarian law, insofar as it is silent on such matters or is ambiguous, but also because of the refusal of States to recognize its application.
Furthermore, conventions on human rights and those on international humanitarian law each contain a minimum basis of very similar fundamental guarantees, the application of which can be optimized to ensure that minimum standards for the protection of human beings remain applicable to all in all circumstances.
In situations of internal disturbances and tensions, for example, it is useful to highlight the complementarity that exists between these two branches of international law.
▸ Internal disturbances and tensions ▸ Fundamental guarantees ▸ International armed conflict ▸ International humanitarian law ▸ Non-international armed conflict ▸ Situations and persons not expressly covered ▸ Universal Declaration of Human Rights
Fundamental Rights and Freedoms
International and regional conventions set out the main fundamental human rights recognized by the international community. Other conventions take a thematic approach and regulate specific rights and guarantees. The application of human rights poses a number of problems, particularly in periods of unrest or conflict.
The general framework of internationally recognized human rights is established in the 1948 Universal Declaration of Human Rights (UDHR). ▸ Rights
The UDHR is complemented by the two Covenants: the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR), which were adopted by the UN General Assembly on 16 September 1966 and entered into force in 1976. These three texts are known as the International Bill of Human Rights.
- The ICCPR currently has 168 State Parties. The rights enumerated in this convention protect the principal civil rights and freedoms of individuals from any violation or infringements by the authorities.
- The ICESCR currently has 164 State Parties. The rights enumerated in this convention require that States take concrete measures to ensure the well-being of each person.
A distinction is sometimes made between “positive rights” and “negative rights.” The former imply that States have an obligation to act in order for such rights to be enjoyed (which is the case for most economic rights, e.g.), while the latter imply a duty to abstain from interfering (as is the case for most civil liberties).
Some of the principal civil and political rights are:
- the right to physical and mental well-being;
- freedom of movement, assembly, and association, including to form trade unions;
- freedom of thought, conscience, and expression;
- the right to equality, in general and before the law;
- the right to own property and to accomplish one’s goals; and
- the right to participate in the political affairs of the country.
- The European Convention for the Protection of Human Rights and Fundamental Freedoms was adopted on 4 November 1950 and entered into force in 1953. It currently has forty-seven States Parties.
- The American Convention on Human Rights was adopted on 22 November 1969 and entered into force in 1978. It has twenty-four States Parties as of April 2013.
- The African Charter on Human and People’s Rights was adopted on 27 June 1981 and entered into force in 1986. It has fifty-three States Parties as of April 2013.
- The Arab Charter of Human Rights was adopted on 15 September 1994 by the Council of the Arab League and amended during the Arab Summit in Tunis in 2004. The Charter entered into force on 16 March 2008, two months after ratification of the seventh Member State of the Arab League. The Charter established the Arab Human Rights Committee to supervise its implementation.
These were adopted to protect certain specific rights and prohibit certain acts or behaviors (state of ratification as of April 2013):
- Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), adopted by the UN General Assembly on 9 December 1948 and entered into force in 1951. It has 146 States Parties.
- Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery (Supplementary to the 1927 Slavery Convention), adopted by the UN General Assembly on 7 September 1956 and entered into force in 1957. It has 123 States Parties.
- International Convention on the Elimination of All Forms of Racial Discrimination (Discrimination Convention), adopted by the UN General Assembly on 21 December 1965 and entered into force in 1969. It has 177 States Parties.
- International Convention on the Suppression and Punishment of the Crime of Apartheid, adopted on 30 November 1973 by the General Assembly of the UN and entered into force in 1976. It has 109 States Parties.
- Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted by the UN General Assembly on 18 December 1979 and entered into force in 1981. It has 189 States Parties.
- Convention Relating to the Status of Refugees, adopted by the UN General Assembly on 28 July 1951 and entered into force in 1954. It has 145 States Parties.
- Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (Torture Convention), adopted by the UN General Assembly on 10 December 1984 and entered into force in 1987. It has 158 States Parties.
- Convention on the Rights of the Child (CRC), adopted by the UN General Assembly on 20 November 1989 and entered into force in 1990. It has 195 State Parties. The Convention was followed by two Optional Protocols, adopted on 25 May 2000, which entered into force in February 2002: the Protocol on the Involvement of Children in Armed Conflict, which has 159 States Parties, and the Protocol on the Sale of Children, Child Prostitution, and Child Pornography, which has 169 States Parties.
- Convention on the Rights of Persons with Disabilities, adopted by the UN General Assembly on 13 December 2006 and entered into force in 2008. It has 154 States Parties.
- International Convention for the Protection of All Persons from Enforced Disappearance, adopted by the UN General Assembly on 20 December 2006 and entered into force in 2010. It has 46 States Parties.
- European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, adopted by the Council of Europe on 26 November 1987 and entered into force in 1989. It has forty-seven States Parties.
- Inter-American Convention to Prevent and Punish Torture, adopted by the Organization of American States on 9 December 1985 and entered into force in 1987. It has eighteen States Parties.
- Inter-American Convention on Forced Disappearance of Persons, adopted by the Organization of American States on 9 June 1994 and entered into force in 1996. It has fourteen States Parties.
- The African Charter on the Rights and Welfare of the Child, adopted in 1990 and entered into force on 12 November 1999. It has forty-one States Parties.
- The Protocol to the African Charter on Human and People’s Rights on the Rights of Women, adopted in 2003 by the African Union and entered into force on 25 November 2005. It has thirty-six States Parties.
Weaknesses of Human Rights Conventions
Different problems may arise in implementing the provisions of these conventions.
States Do Not Always Have Specific Obligations
It is important to emphasize that conventions on human rights do not apply directly in national law. In order to become rights that can be exercised directly by individuals, these rules need to be transposed into national law by each State. The conventions often set out general rights covering very different areas, such as civil, political, economic, social, and cultural. They prohibit States from behaving in certain ways, for example, using torture, arbitrary detention, or extrajudicial execution. These conventions recognize States’ endeavors toward rights to health, food, education, social security, or work but do not create direct obligations on States that can be claimed by individuals against national authorities or in front of domestic courts.
Their application and effectiveness is therefore subject to their transposition into national law by each State and the availability of material resources that make it possible to implement national social policies that comply with economic and social rights. These conventions often serve a proclamatory function for the State in relation to its citizens. They make an essential contribution, however, to unifying, at an international level, the rules recognized by all States concerning the treatment of their citizens. We refer, in this respect, to the notion of “standards of treatment of individuals.” The conventions are supplemented by the drafting and adoption at an international level of minimum standards for the treatment of individuals in specific areas such as detention, juvenile justice, or medical ethics in relation to detained persons. The fact that these are minimum rules leaves no room for interpretation in respect of specific national considerations.
Certain Rights May Be Restricted in Times of Tension or Conflict
The conventions applicable to human rights contain the commitments made by the State in respect of its own population, the rights it recognizes for its people, and the treatment guarantees it commits to implementing under the rule of law. It is during peacetime, of course, that the State has its full resources available to fulfill these obligations. But it is in periods of unrest, insecurity, or armed conflict that getting the right balance between the requirements to maintain order and respect for the rule of law becomes crucial, and this is when individuals need increased protection. The international conventions do allow States not to fully comply with a number of human rights in certain situations, such as unrest, internal tensions, or conflict. In addition, during such periods of unrest and internal tensions, the guarantees provided for by humanitarian law—the law of armed conflict—do not apply because the acts of violence are not deemed to be at a sufficient level of intensity (and in non-international armed conflict, the non-state armed actors are not sufficiently organized).
The conventions on human rights do, however, provide two safety mechanisms for these situations: by listing the rights that cannot be dispensed with whatever the circumstances, and by establishing an international procedure for notifying instances of derogations of such rights.
Indeed, the international conventions set out the human rights that cannot be disregarded, regardless of circumstances. In this case, we use the terms fundamental guarantees , non-derogable rights , or the hard core of human rights . It is therefore essential to identify, within human rights, those which are absolute and those which are only relative and can always be limited. These fundamental guarantees also exist in international humanitarian law in relation to armed conflict. Fundamental human rights guarantees and the law of armed conflict thus partially intersect, to provide people with a minimum standard of protection under all circumstances.
States do not have an absolute right to restrict the application of certain human rights. The possibility of so doing must be formalized in two ways: through a national procedure to disregard certain rights, and the international procedure for notifying instances where rights are disregarded, justified by actions to protect security and defend national public order (the obligation to notify is derived from Art. 4.3 of the International Covenant on Civil and Political rights, Art. 15.3 of the European Convention on Human Rights, Art. 27.3 of the American Convention on Human Rights, and Art. 4.3 of the Arab Charter of Human Rights). In addition, in cases where there is a right to international judicial appeal, some courts will examine both the existence of public danger invoked by the State and the proportionality between the restrictions on human rights and the danger identified (infra Jurisprudence).
It is important to note that when the use of armed force by the State goes beyond a response to sporadic and isolated acts of violence such as riots (e.g., when it involves recourse to regular military forces), this represents the first step toward the classification of armed conflict. In such situations of high-intensity violence emanating from organized armed actors, it is therefore important to examine if the threshold of violence reaches the level leading to the application of international humanitarian law in addition to human rights. “Other situations of violence,” including those below the IHL threshold of application, should be regulated as a minimum also by Common Article 3 to the Geneva Conventions in addition to human rights.
The Weakness of Sanctioning Mechanisms in Case of Violations of Human Rights
In general terms, most conventions on human rights provide mechanisms to monitor their application but lack any system of international sanction in the event of violations.
If their human rights are violated, individuals are obliged to turn to the courts of their own State. This presupposes the existence of a well-established rule of law and a functional and independent judicial system, since it will have to rule on the actions of the State and its agents.
Gross, mass, or systematic violations of certain prohibitions may, under certain very limited conditions, open the way to international proceedings against a State that fails to abide by its international commitments (infra monitoring bodies).
Only the Geneva Conventions of 1949 on the Law of Armed Conflicts and the Convention against Torture of 1984 have an integral mechanism for defining serious violations of human rights, bringing legal action against perpetrators under the principle of universal jurisdiction. Since 1998, this has been supplemented by the existence of the International Criminal Court, which is responsible for judging the perpetrators of the most serious crimes committed during peacetime or war, namely war crimes, crimes against humanity, and genocide.
At a regional level, there are a number of judicial mechanisms by which individuals may bring legal proceedings, and which can lead to the State being found in breach of the convention concerned and obliged to provide compensation for the harm suffered by the victim.
There is no general system for action in cases of human rights violations. Some of the conventions do establish monitoring bodies, to which States, individuals, and organizations (especially NGOs) can refer cases. These are usually diplomatic mechanisms (mostly treaty-monitoring bodies) rather than judicial procedures. They are responsible for verifying the measures taken by the State to comply with its international obligations and can gather information for this purpose. The verification process is geared toward examining the substance of national law and amendments to it rather than examining its application in actual cases. Different monitoring procedures exist for the various different conventions.
Nonjudicial Monitoring Procedures
Periodic Country Reports
Some conventions provide for the existence of a monitoring body, which is responsible for examining the periodic reports issued by signatory countries concerning the fulfillment of their general or specific obligations in respect of human rights.
Such a procedure is mandatory before:
- the Human Rights Committee (Art. 40 of ICCPR);
- the Committee against Torture—periodically as well as on an ad hoc basis (Arts. 19 and 20 of Torture Convention);
- the Committee on the Rights of the Child (Art. 44 of CRC);
- the Committee on the Elimination of Discrimination against Women (Art. 18 of CEDAW);
- the Committee on the Elimination of Racial Discrimination (Art. 9 of Discrimination Convention);
- the European Committee for the Prevention of Torture (Art. 1 of the European Convention for the Prevention of Torture);
- the Economic and Social Council (Arts. 16–22 of ICESCR);
- the Sub-committee for the Prevention of Torture (Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment and Punishment);
- the Committee on Migrant Workers (Art. 73 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families);
- the Committee on the Rights of Persons with Disabilities (Art. 35 of the Convention on the Rights of Persons with Disabilities);
- the African Committee of Experts on the Rights and Welfare of the Child (Art. 43 of the African Charter on the Rights and Welfare of the Child);
- the African Commission on Human Rights (Art. 62 of the African Charter on Human and People’s Rights);
- the Inter-American Commission on Human Rights (Art. 17 of the Inter-American Convention to Prevent and Punish Torture; Arts. 43 and 44 of the Inter-American Convention on Human Rights); and
- the Arab Human Rights Committee (Arts. 45 and 46 of the 2004 Arab Charter on Human Rights).
A State party to a human rights convention may issue a communication to the effect that another State Party is violating its obligations.
Such a procedure is mandatory before:
- the African Commission on Human and People’s Rights (Art. 47 of the African Human Rights Charter) and
- the Committee on the Elimination of Racial Discrimination (Art. 11 of the Discrimination Convention).
Such a procedure is optional before:
- the Human Rights Committee (Art. 41 of ICCPR);
- the Committee against Torture (Art. 21 of the Convention against Torture); and
- the Inter-American Commission on Human Rights (Art. 45 of the American Human Rights Convention).
An individual may file a petition or communication in case of human rights violations by a State Party.
Such a procedure is mandatory before:
- the African Commission on Human and People’s Rights (Art. 55 of the African Charter);
- the Inter-American Commission on Human Rights (Art. 44 of the American Convention); and
- the Human Rights Committee (for States that have ratified the first Optional Protocol to the ICCPR, whose aim is specifically to accept this competence on the part of the HRC).
Such a procedure is optional before:
- the Committee against Torture (Art. 22 of the Torture Convention) and
- the Committee on the Elimination of Racial Discrimination (Art. 14 of the Discrimination Convention).
An NGO may file a petition or communication in case of human rights violations by a State Party.
Such a procedure is mandatory before:
- the African Commission on Human and People’s Rights (Art. 55 of the African Charter);
- the Inter-American Commission on Human Rights (Art. 44 of the American Convention); and
- the African Committee of Experts on the Rights and Welfare of the Child (Art. 44 of the African Charter on the Rights and Welfare of the Child)
Judicial Monitoring Procedures
An individual may file a complaint before an international organ in case of human rights violations by a State Party.
Such a procedure is mandatory before:
- the European Court of Human Rights (Art. 34 of the European Convention, as amended by Protocol 11).
This procedure is optional before:
- the African Court of Human and People’s Rights, created in 1998 following the adoption of a Protocol to the African Charter of Human and People’s Rights. The Court can rule on individual complaints (Art. 5.3 of the Protocol) if the State against which the complaint is lodged has accepted this option, as set out in article 34.6 of the Protocol. This provision is set out in the same terms (Art. 8.3) as an option (Art. 30.f) in the Statute of the African Court of Human and People’s Rights adopted in 2008, which, when it comes into force, will merge the African Court of Human and People’s Rights and the Court of Justice of the African Union.
- the ECOWAS Court of Justice. The Court has competence to rule on human rights violations through an individual complaint procedure since 2005. Particularly noteworthy is that local remedies do not need to have been exhausted before cases are brought to the ECOWAS Court of Justice. The Court rules according to the provisions of the African Charter on Human and People’s Rights.
An NGO may file a complaint before an international organ in case of human rights violations by a State Party. Such a procedure is mandatory before the European Court of Human Rights (Art. 34 of European Convention, as amended by Protocol 11).
This procedure is optional before the African Court of Human and People’s Rights (Arts. 5.3 and 34.6 of the Additional Protocol of 1998 to the African Charter of Human and People’s Rights, for NGOs with observer status with the African Commission on Human and People’s Rights).
A State Party may file a complaint against another in case of human rights violations.
Such a procedure is mandatory before:
- the European Court of Human Rights (Art. 33 of European Convention, as amended by Protocol 11) and
- the African Court of Human Rights (Art. 5, para. 1, of the Protocol to the African Charter on Human and People’s Rights). In addition to cases referred to it by a State Party, the African Court can also hear cases referred by the African Commission and African intergovernmental organizations.
In war-related situations, it is preferable to refer to violations of humanitarian law than to human rights violations. International humanitarian law provides more specific rights to individuals, including the right to assistance. It precisely defines the content of violations that come under the various categories of war crimes, crimes against humanity, and so on. It also offers types of judicial and non-judicial recourse that are not available through the human rights mechanisms. In the case of torture, for instance, the Torture Convention specifically provides for judicial recourse under the principle of universal jurisdiction.
In situations in which human rights violations are not isolated acts but committed in the context of a policy of genocide, crimes against humanity, or war crimes, the statute of the International Criminal Court establishes that cases can be referred to it by states parties or by the Security Council. The Prosecutor may also initiate investigations and prosecutions, under certain conditions, based on information received directly from victims, NGOs, or any other source. Victims have the right to legal representation before the ICC and to obtain reparation (Arts. 68 and 75 of ICC statute).
Right to Reparations for Victims of Human Rights Violations
The right of victims of human rights violations to receive reparations is recent in international law. It is traditionally associated with the broader right to judicial remedies for the victims of violations and represents the final phase in the process. This right to judicial remedies and reparations falls primarily on the responsibility of national courts, given the limited availability of recourse through the international courts open to individuals. For many years, the only mechanisms available to these victims and their families were the rare judicial decisions from domestic courts, or ad hoc procedures such as Truth and Reconciliation Commissions or funds created within the UN. The statutes of the two ad hoc International Criminal Tribunals for the Former Yugoslavia and Rwanda did not provide any system of reparations for victims. The Statute of the International Criminal Court (Art. 75), adopted in July 1998, provides the possibility of reparations for victims of genocide, war crimes, and crimes against humanity. The creation of a Trust Fund for Victims (TFV) is provided for in Article 79.1 of the Rome Statute of the International Criminal Court and was established in September 2002, following Resolution 6 of the General Assembly of States Parties of the ICC. The fund sets out the terms and conditions for reparations by the international community in compensation for the harm suffered by victims and their families alongside the possibilities of direct compensation by convicted individuals. Strictly speaking, it is not a fund disbursing individual judicial compensation, but it works rather in the spirit of collective rehabilitation activities.
There are two particular funds created by the UN General Assembly. The first is the United Nations Voluntary Fund for Victims of Torture, created in 1982; the second is the Voluntary Fund for Victims of Contemporary Forms of Slavery, created in 1991. These two funds are run by the Office of the High Commissioner for Human Rights and a board of directors made up of five people who are nominated by the Secretary-General of the UN for three-year renewable periods. The board strives to obtain funds after studying the different projects submitted by NGOs working with victims of torture or slavery. NGOs are the mandatory vector through which all aid allotted by the donors must pass, since the funds never give money directly to the victims.
At the regional level, conventions on human rights establish the principle of the right to compensation and effective recourse, and the European, Inter-American, and African Courts of Human Rights can decide in their judgments to grant compensation to the victims of violations by ordering the State concerned to pay victims reparations in the amount established by the regional judge (Art. 13 of the European Convention; Arts. 25 and 63 of the Inter-American Convention; Art. 7 of the African Charter of Human and People’s Rights; Arts. 28.h and 45 of the Protocol on the Statute of the African Court of Justice and Human Rights of 2008; and Art. 3.2 of the Additional Protocol to the Protocol on the ECOWAS Court of Justice of 2005).
In 2005, the Human Rights Commission of the United Nations High Commission for Human Rights adopted the “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law” (E/CN.4/RES/2005/35). These principles were later reaffirmed by the United Nations General Assembly in 2006 (A/RES60/147).
Such a procedure is optional before:
- the Inter-American Court of Human Rights (Art. 62 of American Convention). In addition to cases referred to it by a State Party, the Inter-American Court can also hear cases referred by the Inter-American Commission if a State fails to abide by the Commission’s decisions and recommendations.
Other UN Bodies
Other organs for the protection of human rights are not established by a specific treaty. This is the case, for example, with the various procedures that exist within the Office of the High Commissioner for Human Rights, and in particular the special procedures assumed by the Human Rights Council. These special procedures include examining confidential individual communications. Notably, a communications working group is appointed for a three-year term by the Consultative Committee of the Human Rights Council. The group has revived the 1503 Procedure (now known as the Revised 1503 Procedure), which allows the examination of confidential communications provided by individuals or groups denouncing human rights violations. These special procedures also include the work of the Special Rapporteurs appointed to investigate violations and promote respect for human rights in particular countries or on specific topics. They do not, however, have any judicial function. In the case of serious violations of human rights, they have powers to investigate, produce reports, and publish them as a last resort. These investigation reports can also be sent by the various UN bodies to the Prosecutor of the International Criminal Court to be used as the basis for examining a situation prior to starting criminal proceedings.
Complementarity between International Humanitarian Law and Human Rights
Since 1977, two Additional Protocols to the Geneva Conventions of 1949 have set out and supplemented standards for the protection of civilians in times of war, as laid down in the Fourth Geneva Convention, but also in other standards of international law governing the protection of fundamental human rights in times of armed conflict (API Art. 72; and APII, Preamble). The International Court of Justice has recognized in several judgments the necessity that international humanitarian law and human rights be complementary and be applied jointly. These judgments form part of the changing context in relation to forms of conflict. They set out the legal notions applicable to issues in the war on terrorism and the national security argument, but also to situations of occupation or effective control engaging the liability of the State and the role of non-state armed groups (infra Jurisprudence).
Three key points emerge from these judgments. Human rights continue to apply even during armed conflicts (1). The application of human rights during conflicts is only limited by derogations States may decide to implement during exceptional situations. The application of human rights may, under certain conditions, be extended outside the national territory or to foreigners (2). Finally, in the case of simultaneous application of both these branches of law, international humanitarian law is considered a special law ( lex specialis ), which therefore prevails over the general law ( lex generalis ) of human rights. The primacy of international humanitarian law needs to be adapted and interpreted to ensure it remains compatible with the spirit of the recently established principle of simultaneous application (3).
Non-international armed conflicts but also situations of detention, military occupation, and new forms of transnational efforts to combat insecurity or terrorism are the main cases likely to be covered by human rights in addition to or at the same time as international humanitarian law, insofar as the latter is silent or ambiguous on the issue at hand. In recent years, international jurisprudence has provided useful examples concerning the terms under which international human rights and international humanitarian law can be applied in complementary ways. These include, notably, judgments from the International Court of Justice and the European Court of Human Rights, which have either built on or overturned the judgments of the U.S. and Israel Supreme Courts on several key points. The criteria for applying and interpreting the complementary use of both branches of the law in this complex area have still to be developed and established (infra Jurisprudence).
Simultaneous Application of Human Rights and International Humanitarian Law
It is now broadly accepted that human rights continue to apply in times of armed conflict, with the sole exception of the derogations applied by the States concerned in accordance with the provisions of the conventions on human rights. This is particularly important given the new forms of certain armed conflicts, in particular non-international conflicts, which have led some States to dispute the application of international humanitarian law in this situation because of a literal and restrictive application of the criteria concerning the definition of conflict or the characteristics of non-State armed groups and combatants. Simultaneous application has been reflected in several judgments by the courts, in particular the International Court of Justice and the European Court of Human Rights. This is an essential development insofar as it puts an end to the abusive use of certain legal arguments that have hindered the application of human rights as well as the one of international humanitarian law in the context of the war on terrorism. For example, detainees have been deprived of any protection derived from the conventions on human rights on the basis that they were foreigners and being held outside national territory. They were also refused the protection of international humanitarian law on the basis of literal and absurd interpretations of IHL criteria defining international and non-international conflict and combatants. They were excluded from the benefit of international conflict regulations since the individuals concerned belonged to non-state armed groups not fitting the pattern and criteria of an interstate conflict. At the same time, they were refused the fundamental guarantees provided for non-international conflict by Common Article 3 of the Geneva Conventions, on the basis that the war on terrorism—obviously affecting more than one country—could not be labeled as non-international. In other cases, human rights have been declared inapplicable in situations of armed conflict because of the primacy of international humanitarian law, which is deemed a lex specialis in these situations. The decisions of international judges and the abundant production of legal analysis by specialists on all sides need to be understood in this context of reductio ad absurdum , which removes any ability to provide protection from both these branches of international law (legal debate about unlawful combatant is dealt apart under ▸ Combatant ▸ Detention ).
Extraterritorial Application of Human Rights Obligations
Decisions by the courts have also recalled the extraterritorial application of human rights in cases where a State exercises effective control over a foreign territory or foreign nationals. States are bound by their human rights obligations outside of their national territory in cases of direct or indirect military occupation, but also in all cases of detention of foreign individuals regardless of where they are being held.
Arbitration Rules between the Application of Human Rights (Lex generalis) and International Humanitarian Law (Lex specialis)
The simultaneous application of human rights and international humanitarian law poses a number of problems concerning arbitration and the interpretation of different or even contradictory rules applicable to the various situations and persons affected. The technicality and breadth of the legal debates need to be reexamined in a broader context to understand the issues involved. It is fair to say that the application of human rights in conflict situations represents a legal advance, since in several areas the human rights regime is more protective for individuals. Human rights, however, refer to notions that sometimes contradict those of international humanitarian law. As a general rule, international human rights law only applies on national territory and only binds the State in respect of its own citizens. Furthermore, human rights are based on notions such as the right to life, the right to liberty, judicial guarantees, non-discrimination, and the rule of law, which can sometimes contradict certain provisions of international humanitarian law. Notably, humanitarian law recognizes the principles of military necessity and proportionality, which legitimize the use of lethal force against the enemy, while human rights law considers, as a general matter, that the use of lethal force represents generally a violation of the right to life, unless in some strict exceptional circumstances. Likewise, humanitarian law authorizes detention of security detainees without trial, which under human rights law represents a violation of the right to liberty and standard judicial guarantees.
There is a further difficulty between these two branches of the law in that human rights protect equally all individuals without discrimination, while international humanitarian law distinguishes between the protection afforded to civilians and combatants. This difficulty is aggravated by the fact that in a situation of non-international armed conflict, international humanitarian law does not automatically consider members of non-state armed groups as combatants. The vagueness around their status means that they are “civilians” participating directly in hostilities, and, as such, can be legitimate targets for attack while participating or for targeted killings according to the doctrine established by various States, but also that they are deprived of certain guarantees when in detention. The uncertain nature of these situations weakens the notions of the right to life contained both in the conventions on human rights and in international humanitarian law for civilians, and weakens the application of fundamental guarantees for detainees in both branches of international law.
In order to regulate the simultaneous application of different rules, the law uses a principle of settling norm conflict that ensures the primacy of a special rule addressing a specific situation ( lex specialis ) over the general law ( lex generalis ). International humanitarian law thus plays the role of a special law, specifically designed for situations of armed conflict, and which must therefore prevail over human rights in these situations. The practical application of this principle, however, raises questions that have not yet been fully settled, given that simultaneous application is still a recent phenomenon.
The different interpretations of this rule can be summarized as follow. Some States insist that the special law should apply in place of the general law. Thus in situations of armed conflict, international humanitarian law should supplant and abolish human rights obligations. This thesis contradicts international jurisprudence, which has noted that human rights remain applicable at all times, subject only to any derogations the State may have implemented in response to an exceptional situation.
Some lawyers, inspired by recent decisions of the European Court of Human Rights, go further and would prefer that in each situation where international humanitarian law and human rights are applicable, the rule that provides the most protection to individuals and is most restrictive in respect of the State should automatically apply, regardless of the rule of primacy of the lex specialis . In spite of good intentions, the consequence of this practice is to create uncertainty over which law is immediately applicable in a given situation. This carries the risk of increasing the potential for disputes and pushing the decision on the applicable law back to an ex post facto examination of each individual case by an international judge. This is not compatible with the spirit of international humanitarian law, which seeks to avoid legal controversy in situations of crisis and conflict and to guarantee the immediate application of minimum, simple, and unquestionable rules. It is essential to avoid making legal arguments and concepts so complex that they undermine and delay the application of rules that are essential to the survival and protection of individuals in situations of crisis and conflict.
It is, however, possible to reach a fair and workable consensus on this issue. If we interpret this rule in good faith and in the spirit of the principle underlying it, it is logical to consider that in cases of armed conflict (international or non-international, depending on how the situation is classified in accordance with the definition of these types of conflict), international humanitarian law applies in addition to human rights, and its rules prevail over those of human rights. As the principle of the primacy of special law is justified by the fact that it is more precise and more closely adapted than the general law. It is also logical to take the view that when international humanitarian law sets out precise provisions, these should apply as a matter of priority. Conversely, in situations where international humanitarian law is silent, vague, or uncertain, then the notion of special law becomes less relevant. Human rights should then remain the relevant benchmark, including in extraterritorial situations based on the effective control criterion. This interpretation is in line with the spirit of both these branches of international law. In addition, it provides a means of addressing any legal black holes derived from overly restrictive or literal interpretations of the various notions of international humanitarian law and human rights.
In recent years, international jurisprudence has provided useful examples concerning the terms under which international human rights and international humanitarian law can be applied in complementary ways. These include, notably, judgments from the International Court of Justice and the European Court of Human Rights, which either have built on or modified the judgments of the United States and Israel Supreme Courts on the simultaneous application of human rights and international humanitarian law and on the extraterritorial application of human rights (1) and judicial control of derogations of human rights based on national security arguments (2).
- Simultaneous application of international human rights law and international humanitarian law in periods of armed conflict and extraterritorial application of international human rights law
Simultaneous or extraterritorial application is confirmed by numerous pieces of concordant jurisprudence, based on the notion of a State’s effective control over foreign territories or individuals. This is particularly relevant to situations of occupation and detention.
- Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996
In this decision, the International Court of Justice recalled the simultaneous application of human rights and international humanitarian law in a period of armed conflict and raised the problems associated with the difference in substance with regard to the right to life set out in these two branches of international law. In the view of the Court, international humanitarian law prevails in defining illicit deprivation of the right to life in a situation of armed conflict:
The protection of the International Covenant of Civil and Political Rights does not cease in times of war, except by operation of Article 4 of the Covenant whereby certain provisions may be derogated from in a time of national emergency. Respect for the right to life is not, however, such a provision. In principle, the right not arbitrarily to be deprived of one’s life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis , namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities [and thus what constitute a deprivation of life]. (para. 25)
- Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004
In this advisory opinion, the ICJ reverted to its own previous jurisprudence on the legitimacy of the use or threat of nuclear weapons and applied this to respect for international covenants on human rights in situations of military occupation covered by international humanitarian law. It set out the criteria for simultaneous application of the two branches of the law, particularly in cases of extraterritorial application of human rights to the populations of territories occupied by a foreign State.
As regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law. In order to answer the question put to it, the Court will have to take into consideration both these branches of international law, namely human rights law and, as lex specialis , international humanitarian law. (para. 106)
It remains to be determined whether the two international Covenants and the Convention on the Rights of the Child are applicable only on the territories of the States Parties thereto or whether they are also applicable outside those territories and, if so, in what circumstances. (para. 107)
The scope of application of the International Covenant on Civil and Political Rights . . . can be interpreted as covering only individuals who are both present within a State’s territory and subject to that State’s jurisdiction. It can also be construed as covering both individuals present within a State’s territory and those outside that territory but subject to that State’s jurisdiction. (para. 108)
The Court observed that “in adopting the wording chosen, the drafters of the Covenant did not intend to allow States to escape from their obligations when they exercise jurisdiction outside their national territory” (para. 109). It considered that “the International Covenant on Civil and Political Rights is applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory” (para. 111). The Court affirmed that “the territories occupied by Israel for over 37 years have been subject to its territorial jurisdiction as the occupying Power. In the exercise of the powers available to it on this basis, Israel is bound by the provisions of the International Covenant on Economic, Social and Cultural Rights” (para. 112).
- Israel Supreme Court, Supreme Court Sitting as the High Court of Justice, the Public Committee against Torture in Israel, HCJ 759/02, 11 December 2005
In this judgment, the Israel Supreme Court confirmed that international humanitarian law is a special law that applies in situations of conflict. It is only where there is a gap in international humanitarian law that human rights can be invoked to fill it (para. 18). The Supreme Court took up the consistent case law of the ICJ, which was reaffirmed in its advisory opinion on the construction of the wall by Israel ( Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory , Advisory Opinion, ICJ Reports 2004, p. 136, para. 112 supra) but drew a different conclusion, based on a limited interpretation of the notion of “gap.” It took the view that international humanitarian law sets out provisions concerning occupied territories and therefore rejected the extraterritorial application of human rights to the populations of occupied territories by allowing the less stringent obligations of the humanitarian lex specialis to prevail.
- Supreme Court of the United States, Rasul et al. v. Bush, President of the United States, et al., certiorari to the United States court of appeals for the District of Columbia circuit, No. 03-334, Argued 20 April 2004, Decided 28 June 2004
In the case of Rasul v. Bush , the U.S. Supreme Court confirmed that foreign nationals detained by U.S. authorities outside U.S. territory at the Guantanamo base were covered by U.S. law and were thus entitled to contest their detention before the U.S. federal courts, on the basis that the United States was exercising exclusive jurisdiction and control over the place where they were detained.
- European Court of Human Rights (ECHR)
Although it was intended to monitor the application of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the European Court has declared itself competent to examine cases relating to violations of fundamental guarantees of human rights committed in situations of armed conflict and military occupation. ECHR jurisprudence recognizes the simultaneous application of the rules relating to international humanitarian law and those relating to human rights. It has therefore ruled on the criteria for complementary and simultaneous application of the general law (human rights) and special law (international humanitarian law).
- ECHR, Case of Al-Skeini and others v. the United Kingdom, Application no. 55721/07, Judgment (Grand Chamber), 7 July 2011
In the case Al-Skeini and others v. the United Kingdom , the ECHR recognized two exceptions to the principle of territoriality in respect of the application of the European Convention on Human Rights. Following the fall of the Ba’ath regime in Iraq, the Court held that the United Kingdom (with the United States) took over the exercise of all or part of the public powers normally exercised by a sovereign government in Iraq, up until the appointment of an interim government and that, on this basis, the British government was under an obligation to comply with the European Convention on Human Rights in all its actions in Iraqi territory and in respect of the people placed under its control. The Court confirmed that a State that has ratified the European Convention is obliged to apply the Convention outside its national territory, to the benefit of foreign nationals, whenever it is exercising control and authority over a foreign individual through its agents and whenever it is exercising effective control over a territory other than its national territory as the result of a military action, regardless of the legitimacy of the action. The Court noted that the controlling State is responsible for guaranteeing all the rights contained in the European Convention and the additional protocols it has ratified within the territory it is controlling, ascertaining the degree to which control is effective is a matter of fact, which is determined by the Court taking into account the power of the military presence of the State in the territory concerned and its ability to influence or subordinate the administrations or authorities present in the territory (paras. 131–40).
The Court has recognised that the exercise of extra-territorial jurisdiction by a Contracting State when, through the consent, invitation or acquiescence of the Government of that territory, it exercises all or some of the public powers normally to be exercised by that Government. (para. 135)
In certain circumstances, the use of force by a State’s agents operating outside its territory may bring the individual thereby brought under the control of the State’s authorities into the State’s Article 1 jurisdiction. . . . Whenever the State through its agents exercises control and authority over an individual, and thus jurisdiction, the State is under an obligation . . . to secure to that individual the rights and freedoms. (paras. 136–37)
Another exception to the principle that jurisdiction under Article 1 is limited to a State’s own territory occurs when, as a consequence of lawful or unlawful military action, a Contracting State exercises effective control of an area outside that national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention, derives from the fact of such control, whether it be exercised directly, through the Contracting State’s own armed forces, or through a subordinate local administration. . . . The fact that the local administration survives as a result of the Contracting State’s military and other support entails that State’s responsibility for its policies and actions. The controlling State has the responsibility under Article 1 to secure, within the area under its control, the entire range of substantive rights set out in the Convention and those additional Protocols which it has ratified. (para. 138)
[According to the Court] it is a question of fact whether a Contracting State exercises effective control over an area outside its own territory. In determining whether effective control exists, the Court will primarily have reference to the strength of the State’s military presence in the area. . . . Other indicators may also be relevant, such as the extent to which its military, economic and political support for the local subordinate administration provides it with influence and control over the region. (para. 139)
- ECHR, Case of Al-Jedda v. the United Kingdom, Application no. 27021/08, Judgment (Grand Chamber), 7 July 2011
In the context of the international intervention in Iraq, the European Court recalled the obligation of extraterritorial application of the European Convention on Human Rights by the British armed forces as a result of their status as occupying forces. It also took a relativist view of the question of the primacy of the application of international humanitarian law in relation to human rights in situations of conflict. In this case concerning the conditions under which individuals arrested by the British forces in Iraq were detained, the Court decided that human rights obligations should prevail over obligations under international humanitarian law in cases where the former provided better protection for individuals (and were more restrictive for States) and on condition that they did not directly contradict other obligations provided under international humanitarian law or a resolution of the United Nations Security Council concerning the mandate of international forces deployed in the country concerned (in this case, Iraq). This case may create some confusion insofar as the substance and interpretation of the rules on human rights and international humanitarian law rely on notions that are not always equivalent. It helps, however, to avoid an opportunistic application of the law that imposes the fewest restrictions on States in all crisis and conflict situations, in which the full application of humanitarian law is contested (paras. 107–09).
- Judicial control of derogations of human rights and their proportionality in light of the security issues faced by the State
- ECHR, Case of Aksoy v. Turkey, Application no. 21987/93, Judgment (Chamber), 18 December 1996
In this Judgment, the Court recalled that “it falls to each Contracting State, with its responsibility for ‘the life of [its] nation,’ to determine whether that life is threatened by a ‘public emergency’ and, if so, how far it is necessary to go in attempting to overcome the emergency. . . . Nonetheless, Contracting Parties do not enjoy an unlimited discretion. It is for the Court to rule whether, inter alia, the States have gone beyond the ‘extent strictly required by the exigencies’ of the crisis” (para. 68). The derogation measures taken must be strictly required by the situation and proportional to the danger.
- Israel Supreme Court, Public Committee against Torture in Israel v. the Government of Israel, HCJ 5100/94, 26 May 1999
In this decision on the legality of the use of exceptional interrogation measures in the context of the war on terrorism, the Court affirmed that neither international nor national law recognize the argument of national necessity for the use of torture or moderate physical pressure during interrogations in the context of efforts to combat terrorism. According to the judges, the argument of necessity does not create a new legal framework authorizing the use of prohibited methods. The use of such moderate physical pressure is not a legal method, and the argument of necessity cannot be used ex ante to justify such methods (paras. 36–37).
- Israel Supreme Court, Physician for Human Rights v. the Commander of IDF forces in the West Bank, HCJ 2117/02, 30 May 2004
This case concerns an examination of the legality of the intervention by Israeli armed forces in Rafah in the Gaza Strip in May 2004. In its decision, the Court recognized the argument of necessity as a justification for a military operation, but recalled that simply because a military operation is legitimate from a military viewpoint does not imply that it is lawful from a legal viewpoint.
Judicial review does not examine the wisdom of the decision to carry out military operations. The issue addressed by judicial review is the legality of the military operations. Therefore we presume that the military operations carried out in Rafah are necessary from a military viewpoint. The question before us is whether these military operations satisfy the national and international criteria that determine the legality of these operations. The fact that operations are necessary from a military viewpoint does not mean that they are lawful from a legal viewpoint. Indeed, we do not replace the discretion of the military commander in so far as military considerations are concerned. That is his expertise. We examine their consequences from the viewpoint of humanitarian law. That is our expertise. (para. 9)
- Israel Supreme Court, Public Committee against Torture in Israel v. the Government of Israel, HCJ 769/02, 11 December 2005
In this decision on an examination of the Israeli policy of targeted killings in the context of efforts to combat terrorism following the second Intifada, the Israel Supreme Court confirmed its decision of 1999 on judicial control of the proportionality of derogations, stating that it is necessary to find a balance between security needs and individual rights: “not every sufficient means is also legal. The ends do not justify the means. . . . That balancing casts a heavy load upon the judges, who must determine—according to the existing law—what is permitted, and what is forbidden” (para. 63).
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