Why Is The “Humanization” Of Humanitarian Law Not A Good Idea?

Jannat Ali Kalyar Blawgs, Commentary

Why Is The “Humanization” Of Humanitarian Law Not A Good Idea?

Military necessity is the raison d’être of international humanitarian law (IHL). It permits measures which are actually necessary to accomplish a legitimate military purpose and are not otherwise prohibited by IHL as defined by the International Committee of the Red Cross.[1]

This fundamental principle has been greatly misused to either justify heinous abuses during armed conflicts or curb the performance of combatants.[2] This underlying principle of IHL exists in equipoise with the principle of humanity, which aims to control and limit the destruction and suffering caused due to armed conflicts. The systematic augmentation of treaty law on IHL has allowed for a stable balance between the two, but the extra-territorial application of human rights unsettles this balance, making this area of law largely problematic.

This interdependent relationship is imperative to analyze the direction in which international humanitarian law is evolving alongside the extra-territorial application of human rights and its wider implications for the affected states.

The world wars and the destruction that followed caused a gradual shift of IHL towards a more humanitarian approach[3] which principally runs counter to the doctrine of military necessity. This was mainly due to the external pressure by the International Court of Justice (ICJ) and other regional judicial bodies such as the European Court of Human Rights (ECtHR) and Inter American Court of Human Rights,[4] all of which were formed as a result of the Second World War. Although this shift may portray some form of progression, it is essential to understand that a balance must be kept. Giving more gravity to humanity could be disastrous in a state-centric normative architecture.

The biggest threat posed from this gradual extension is its effect on the way armed forces conduct their operations or the use of force, essentially limiting military necessity and destabilizing the balance in favor of humanity. This progression has caused legal uncertainty partly due to its unimaginable impact for requiring adjustments in the way operations or battles are carried out on the field.

However, it is not to say that that human rights law is incompatible with the armed forces as this approach is exaggerated and unconvincing as a matter of law, fact and policy.[5] The prevention of human suffering in all situations is ideal but, inevitably, not always possible.

Therefore, it is crucial to understand that “moderating warfare through the application of the human rights regime, if not filtered through the lens of humanitarian law and tempered by reference to the realities of modern armed conflict, will result in the eventual emasculation of warfare”.[6] It is asserted that the best approach to take when applying HR treaties to armed conflicts is lex specialis,[7] where courts will put on the lens of IHL to apply human rights conventions.

Firstly, the position of the courts will be observed to ascertain how the law has developed applying human rights extra-territorially and the way it has unsettled the balance. The aim is to discuss how disastrous an impact of the application of convention rights could be if strictly applied in the context of the use of force. It will be argued that the shift towards humanizing humanitarian law[8] (if not filtered through the lens of IHL) is unfavorable and at full capacity to threaten the balance between military necessity and humanity.

Case Law

The jurisprudence of the International Court of Justice and the other human rights courts particularly ECtHR have caused a great deal of legal uncertainty because firstly, they do not follow the same theme or outcomes as the ICJ (Advisory Opinions) and if they do, the ECtHR never lets us down in departing from those judgments like it did in Jaloud,[9] where the ECtHR held that Netherlands retained ‘full command’ or ultimate military authority over their troops even if they were under the operational control of British Commanders. This is viewed as departing from the lex specialis principle and stretching the application of human rights unnecessarily far.

To begin with, the ICJ confirms that while human rights treaties continue to apply in warfare, they do so in a manner that takes full account of the relevant provisions of IHL and therefore reaffirming the lex specialis approach. For example, in its Advisory Opinion on Nuclear Weapons[10], the ICJ rejected an argument that any use of a nuclear weapon would be unlawful and the Court made clear that the provision of the covenant namely Article 6[11] had to be applied in the light of IHL. A similar decision was taken in the Advisory Opinion on Occupied Palestine[12] which is believed to be one of the most valid and strongest cases to argue for human rights application extra-territorially.[13]

Further, Bankovic[14]was the first case to have set out the threshold for applying human rights extraterritorially and was applied in subsequent cases. However, a shift is apparent from the strict Bankovic standard of “effective control over territory” toward recognition of “power and authority over individuals” as sufficient to establish jurisdiction.[15] This shift was confirmed in Al Skeini[16] and Al Jeddah[17] and appears to be a stricter approach to justify the application of convention rights. Bankovic is an important case because of the time frame in which it was heard. It is heavily criticized because it is believed to have been decided on basis of policy and to avoid floodgates of litigation from victims of the Iraq War. Hence, the subsequent cases could be construed as a correction by the courts to apply human rights extraterritorially as a gradual overwhelming shift toward the humanity principle.

Moreover, Al Skeini[18]concerned ineffective investigations with regard to the deaths contrary to Article 2[19] of the ECHR. The court rejected the two old propositions that were the basis for its previous judgments that convention rights only applied in the judicial and geographical space of the state parties and extraterritorial jurisdiction would apply only if states had control over an area outside its territory. As is obvious in this judgment, a stricter approach was taken to apply convention rights.

Further, by holding Netherlands (Jaloud)[20] responsible for the actions of their troops even when they were under the operational control of British commanders, they were not freed from liability under the convention. It would not be wrong to say that states are responsible for the protection of human rights as conceptualized in ECHR and the participation of a state in the overall operation is a political question rather than a military issue. However, Jaloud has reiterated the position in Al Skeini by departing from the lex specialis principle and stretching the application of convention rights unnecessarily far.

Nevertheless, the ECtHR depicted a similar approach from the cases above. In Hassan,[21] the Grand Chamber held that provisions of both bodies of law should be accommodated, as far as possible, and applied concurrently. Nevertheless, it is considered an unfavourable decision for the sending states who completely disregard ECtHR when applying IHL to extraterritorial armed conflicts[22]as it makes them susceptible to the accountability of their military operations in relation to humanitarian exigencies. It can be argued that the approach taken in Hassan by the Grand Chamber stretched the application of convention rights unnecessarily contrary to the lex specialis principle.

The previous overview confirms that the international legal position with respect to the extra-territorial application of human rights law is both shifting and unclear. It is causing more legal uncertainty and increasing the existing burden on the military to regulate their conduct in the battlefield.

Ramifications on the Use of Force

Firstly, it is immensely important for courts to take into account that if investigations of death caused by the use of force are carried out under human rights law (not filtered through the lens of IHL) – they will entail “eyewitness testimony, forensic evidence, etc”.[23] There is little time for collecting evidence and witness statements, without potentially sacrificing more lives. Therefore, it is highly unrealistic and unfavourable to conduct such investigations on the battlefield as they could endanger the lives of military personnel and affect their military targets by prioritising humanitarian exigencies which run contrary to military necessity.

Furthermore, ‘combatant immunity’ is one of the key concepts of IHL which shields a soldier from prosecution for acts that would be unlawful outside of war.[24]. Hence, it is believed that the UK Attorney General made the right decision[25] of declining to charge British soldiers with the murder of an Iraqi because the displacement of humanitarian law with human rights law could jeopardize combatant immunity and would affect their military operations significantly.

Evaluating the use of force during armed conflict under a human rights regime is subject to soldiers’ greater scrutiny than is necessary. Moreover, expecting soldiers to understand and distil such complex rules is unrealistic.[26]. In the heat of battle, rules for using force must be simple; soldiers must make split-second decisions to kill or be killed, thereby weakening the protection of combatant immunity.[27]

It is stressed that if the law keeps prioritizing humanity over military necessity by stretching the application of convention rights, it would eventually lead to soldiers and military personnel facing an exceedingly complex set of rules for conducting military operations. Although human rights do provide more protections for the victims of war, they also put an immense burden on combatants who bear the costs of these protections as additional constraints on how they accomplish the mission and as increased risks to their lives.[28]

Moreover, this “overregulation of the battlefield” may prolong conflict rather than facilitate a quick end to wars[29]. It could make winning wars nearly unachievable for those who try to comply with its strict requirements, and excessive humanization might exceed the limits acceptable to armed forces, provoke their resistance, and thus erode the credibility of the rules.[30]

Many of the arguments, such as those from International Law Professor Bennoune,[31] focus on reducing the death and destruction of war through the application of a human rights framework and there is nothing wrong with it unless it is not filtered through the lens of IHL. According to Michelle, what Bennoune proposes is that human rights law should have a voice in determining the number of soldiers that a state may send to war.[32]

If human rights law could have such power, it would effectively constrain a state’s decision to enter or continue armed conflict and hinder its ability to defend itself from outside threats and aggression, displacing not only the jus in bello (laws of war) aspect of humanitarian law but the jus ad bellum aspect (right to war), as well. Such threat of encroachment demonstrates why the humanitarian law must remain the lex specialis during armed conflict.[33]

Professor Draper[34] further supports the lex specialis position. He explains that there is a need for human rights extension and the development of IHL in their respective spheres because the confusion of the two would result in harm to both. Therefore, the application of HR through the lens of IHL would be the most favorable approach.

 In conclusion, it is reiterated that military necessity and humanity exist in delicate equipoise in IHL and the “unnecessary” extension of human rights threatens this balance. This, however, does not mean that human rights should not be applied absolutely but the most favorable approach to take is the lex specialis when applying the two bodies of law as it gives IHL the precedence that it should get.

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References

Statutes

  • Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5, available at: http://www.refworld.org/docid/3ae6b3b04.html [accessed 3 March 2015]
  • UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171, available at: http://www.refworld.org/docid/3ae6b3aa0.html [accessed 3 March 2015]

Cases

  • Al-Jedda v. United Kingdom, App. No. 27021/08, 7 July 2011 (2011) 53 EHRR 23
  • Al-Skeini v UK (2011) 53 EHRR 18
  • Bankovic v Belgium (2000) 44 EHRR SE5
  • Hassan v United Kingdom, App. No. 29750/09
  • Jaloud v The Netherlands, App. No. 47708/08
  • Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) (1996) ICJ
  • Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) (2004) ICJ R

Books

  • Gery Rubin, ‘The Impact of Human Rights Law on Armed Forces’ [2006] CUP 149
  • Marko Milanovic, Extraterritorial Application of Human Rights Treaties Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy (1st, Oxford Scholarship, Online 2011)
  • Gerald Irving A. Dare Draper, Reflections on Law and Armed Conflicts: The selected works on the Laws of War By the Late Professor Colonel G.I.A.D. Draper, OBE 150 (Hilaire McCoubrey & Michael A. Meyer eds., 1998)

Journal Articles

  • House of Commons Defence Committee, UK Armed Forces Personnel and the Legal Framework for Future Operations, HC 931 (2014) [http://www.publications.parliament.uk/pa/cm201314/cmselect/cmdfence/931/931.pdf]
  • Louise Doswald Beck, ‘Expert Meeting on the Supervision of the Lawfulness of Detention during Armed Conflicts’ [2004] CUDH 25
  • Dennis, ‘Application of Human Right Treaties Extraterritoriality in times of Armed conflict and Military Occupation’ [2005] Am. J. Int’l L 199
  • Michael N. Schmitt, ‘Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance’ [2010] Va. J. Int’l L 796
  • Major Michelle A. Hansen, ‘Preventing the Emasculation of Warfare halting the expansion into Human Rights Law by Armed Conflict’ [2007] MLR 1
  • Milanović, Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy (2011)
  • Noam Lubell, ‘Challenges in applying human rights law to armed conflict’ [2005] IRRC 737
  • Sir Christopher Greenwood, ‘Human Rights and Humanitarian Law- Conflict or Convergence’ [2011] CASE W. RES. J. INT‟L L 491
  • Sari, „Military Operations and the European Convention on Human Rights: ‘Because It’s Judgment that Defeats Us’ [http://ssrn.com/abstract=2411070].
  • Tugendhat and Croft, The Fog of Law: An Introduction to the Legal Erosion of British Fighting Power (2013) [http://www.policyexchange.org.uk/images/publications/the%20fog%20of%20law.pdf]
  • Theodor Meron, ‘Humanizing Humanitarian Law’ [2000] AJIL 239

Websites

Others

  • How does law protect in War: Military Necessity’ (ICRC) https://casebook.icrc.org/glossary/military-necessity accessed 1/7/17
  •  Michael N. Schmitt, ‘Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance’ [2010] Va. J. Int’l L 796
  • Sir Christopher Greenwood, ‘Human Rights and Humanitarian Law- Conflict or Convergence’ [2011] CASE W. RES. J. INT‟L L 491
  • Michael J. Dennis, ‘Application of Human Right Treaties Extraterritoriality in times of Armed conflict and Military Occupation’ [2005] Am. J. Int’l L 199
  • Sari, ‘Military Operations and the European Convention on Human Rights: ‘Because It’s Judgment that Defeats Us’ [http://ssrn.com/abstract=2411070].
  • Major Michelle A. Hansen, ‘Preventing the Emasculation of Warfare halting the expansion into Human Rights Law by Armed Conflict’ [2007] MLR 1
  • Schabas, ‘Lex Specialis? Belt and Suspenders? The Parallel Operation of Human Rights Law and the Law of Armed Conflict, and the Conundrum of Jus ad Bellum’ (2007) 40 Israel Law Review 592
  • Theodor Meron, ‘Humanizing Humanitarian Law’ [2000] AJIL 239
  • Jaloud v The Netherlands, App. No. 47708/08
  • Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) (1996) ICJ
  • (Article 6), UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171, available at: http://www.refworld.org/docid/3ae6b3aa0.html [accessed 3 March 2015]
  • Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) (2004) ICJ R
  • Michael J. Dennis, ‘Application of Human Right Treaties Extraterritoriality in times of Armed conflict and Military Occupation’ [2005] Am. J. Int’l L 199
  • Bankovic v Belgium (2000) 44 EHRR SE5
  • Gery Rubin, ‘The Impact of Human Rights Law on Armed Forces’ [2006] CUP 149
  • Al-Skeini v UK (2011) 53 EHRR 18
  • Al-Jedda v. United Kingdom, App. No. 27021/08
  • Al-Skeini v UK (2011) 53 EHRR 18
  • (article 2) Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5, available at: http://www.refworld.org/docid/3ae6b3b04.html [accessed 3 March 2015]
  • Jaloud v The Netherlands, App. No. 47708/08
  • Hassan v United Kingdom, App. No. 29750/09
  • IHL and IHRL co-exist in situations of armed conflict
  • Major Michelle A. Hansen, ‘Preventing the Emasculation of Warfare halting the expansion into Human Rights Law by Armed Conflict’ [2007] MLR 1
  • Major Geoffrey S. Corn, “To Be or Not to Be, That is the Question”: Contemporary Military Operations and the Status of Captured Personnel, ARMY LAW., June 1999
  • Attorney General Decision in Major Michelle A. Hansen, ‘Preventing the Emasculation of Warfare halting the expansion into Human Rights Law by Armed Conflict’ [2007] MLR 1
  • Michael J. Dennis, ‘Application of Human Right Treaties Extraterritoriality in times of Armed conflict and Military Occupation’ [2005] Am. J. Int’l L 199
  • House of Commons Defence Committee, UK Armed Forces Personnel and the Legal Framework for Future Operations, HC 931 (2014) http://www.publications.parliament.uk/pa/cm201314/cmselect/cmdfence/931/931.pdf]
  • Major Michelle A. Hansen, ‘Preventing the Emasculation of Warfare halting the expansion into Human Rights Law by Armed Conflict’ [2007] MLR 1
  • ibid
  • Theodor Meron, ‘Humanizing Humanitarian Law’ [2000] AJIL 239
  • Karima Benoune in Major Michelle A. Hansen, ‘Preventing the Emasculation of Warfare halting the expansion into Human Rights Law by Armed Conflict’ [2007] MLR 1
  • Ibid
  • Ibid, also see Noam Lubell, ‘Challenges in applying human rights law to armed conflict’ [2005] IRRC 737
  • Gerald Irving A. Dare Draper, Reflections on Law and Armed Conflicts: The selected works on the Laws of War By the Late Professor Colonel G.I.A.D. Draper, OBE 150 (Hilaire McCoubrey & Michael A. Meyer eds., 1998)

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which she might be associated.

Jannat Ali Kalyar

Author: Jannat Ali Kalyar

The writer is a Barrister and is currently working at the Digital Rights Foundation.