The 'Interoperability' of International Humanitarian Law and Human Rights Law: Evaluating the Legal Tools Available To

CHAPTER SIX

THE ‘INTEROPERABILITY’ OF INTERNATIONAL HUMANITARIAN LAW AND HUMAN RIGHTS LAW: EVALUATING THE LEGAL TOOLS AVAILABLE TO NEGOTIATE THEIR RELATIONSHIP

Sarah McCosker*

I. Introduction

This chapter will critically evaluate the key international law rules and principles that have been proposed as ways to negotiate the relationship between international humanitarian law (‘IHL’) and international human rights law. The practical ‘interoperability’ of the two fields is a topic of increasing relevance for international law in an era of globalization, where the delineation between peace time and war has been complicated by significant changes in the nature of contemporary armed conflict.1 Such changes include the use of force to counter terrorism; the increase of non- international armed conflicts and conflicts in urban settings, eliding the traditional frontline between the battlefield and the civilian space; and the greater involvement of non-State actors—including private military and security companies and civilians participating directly in hostilities, blurring the distinction between combatants and civilians. There have also been significant developments in international human rights law, including a greater focus on the responsibilities of non-State actors and the extraterritorial application of human rights obligations. This is partly a reflection of the ever more globalised and interconnected world we now live in—a point also evidenced by the way in which, particularly over the last twenty years, the transnational reach of the media and of many non- government organizations has seen increasing use of human rights bodies at the national, regional and global level, to seek redress for alleged human rights violations in armed conflict.

* The author works as a Principal Legal Officer in the Office of International Law in the Australian Attorney-General’s Department. The views expressed in this chapter are the author’s own and do not represent the views of the Australian Government. 1 Helen Durham and Timothy LH McCormack (eds), The Changing Face of Conflict and the Efficacy of International Humanitarian Law (Kluwer International, 1999) xvii. 146 sarah mccosker

Together, the above trends have generated difficult questions about the relationship between IHL and human rights law, and precisely how to determine their respective scope of application in armed conflicts. In the absence of international bodies dedicated to IHL and accessible to civil society, it has largely been in human rights fora that these questions have been instigated so far. The basic scenario this chapter considers is that of an armed conflict which purportedly triggers the application of IHL2 and where the question arises as to whether human rights law also applies, and to what extent.3 Within this basic scenario there can be many permutations—for example, whether the armed conflict is international or non-international in character, and whether the relevant acts occur outside the territory of a party to a human rights treaty. Much of the academic discussion has focused on what Milanovic describes as ‘the high altitude perspective of a relationship between two or more legal regimes.’4 There has also, however, been much discussion of particular norms. While some human rights norms are widely accepted as capable of concurrent application with IHL obligations (such as the prohibition on torture, and basic standards of detainee treatment), others are more contested, such as fair trial rights and the prohibition of arbitrary detention. Much debate has centred on the prohibition of arbitrary deprivation of life,5 as it is this issue that led to the International Court of Justice’s first pronouncements on the IHL/ human rights law relationship, in its 1996 Nuclear Weapons Advisory Opinion.6 However, the question is more difficult when considered in terms of the relationship between the two systems of law as a whole. This

2 That is, an armed conflict within the meaning of common Article 2 of the 1949 Geneva Conventions: Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, opened for signature 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950); Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, opened for signature 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950); Geneva Convention Relative to the Treatment of Prisoners of War, opened for signature 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950); Geneva Convention Relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) (‘Geneva Conventions’). 3 The chapter will therefore not be addressing in detail the situation of occupation: Geneva Conventions, common art 2. 4 Marko Milanovic, Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy (Oxford University Press, 2011) 232–3. 5 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 6 (‘ICCPR’). 6 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226 (‘Nuclear Weapons’).