Joint Series: Querying the Roles for Human Rights Bodies in the Interplay between International Human Rights Law and International Humanitarian Law

Editors Note from Bobby Chesney: Throughout the month of September, a group of blogs including Lawfare, InterCross (the blog of the ICRC), and EJIL:Talk! (the blog of the European Journal of International Law) will be running a series of posts following up on this summer’s 3nd Annual Tansatlantic Dialogue on International Law and Armed Conflict, which took place in Oxford this past July. Today, Professor Joanna Harrington (University of Alberta) addresses the interplay between IHL and IHRL.

Complexities remain with respect to the interaction between the fields of international human rights law (IHRL) and international humanitarian law (IHL) in situations of armed conflict. Focusing on the human rights side of this interplay, there are questions about which human rights obligations apply, to what extent, and to whom, as well as questions about the role for international human rights monitoring bodies. Should the human rights bodies, for example, see their role as one of shaping the contours of IHL?

The words “human rights body” can easily be misread as if to treat all human rights bodies as being the same, with the same functions, and with the same effect or influence by virtue of being a “human rights body”. Included within this term are courts and commissions, committees and working groups, but from a Canada/U.S. perspective, there is interest in those human rights bodies that are not courts, since both countries cannot be subject to the European Court system, and nor have they accepted the jurisdiction of the Inter-American Court of Human Rights.

The Question of an Accountability Gap

Often these discussions begin by identifying a perceived accountability gap, drawing attention to the lack of an international adjudicative body to provide authoritative interpretations of the Geneva Conventions and Protocols. Having identified a gap, it is assumed that the gap must be filled. But there are times in international negotiations when gaps serve a purpose, perhaps when efforts to achieve agreement on a particular aspect or mechanism have failed. Gaps may secure a treaty’s subsequent ratification, and allow states to rely on interpretations in line with national positions.

Another rebuttal to the gap-filling argument is to look to the states parties themselves, influenced by their own judicial organs, as the interpretive authority for a treaty-created legal regime, with potentially the International Court of Justice also available for inter-state cases and international criminal tribunals to supplement national courts for cases of individual responsibility.

There is, however, no indication that the states parties to the various international human rights treaties intended one, two or all of the 10 human rights treaty-monitoring bodies at the UN level, plus the complaints procedures of the Human Rights Council and the various Special Procedures, including the Working Group on Arbitrary Detention, to be the gap filler. (And if they had intended more than one, did they then intend the potential for conflicting views?)

A Function-by-Function Analysis of the Roles for an International Human Rights Body

This leads to an examination of the specific functions that have been given by state consent to each human rights body, with space constraints here leading to a focus on one body as (possibly) illustrative of the others. That body is the Human Rights Committee, established by states under the International Covenant on Civil and Political Rights (ICCPR). The International Court of Justice has advised expressly, dating back to its 1996 advisory opinion on the Legality of the Threat or Use of Nuclear Weapons, that the protection of the ICCPR “does not cease in times of war” (although there remain 22 non-party states for which the ICCPR has no application as a matter of treaty law, including Saudi Arabia, and an additional 7 states are only signatories, including China).

In essence, the Human Rights Committee has three functions: the monitoring of state party performance, the promotion of general comments, and the handling of individual complaints (putting aside inter-state complaints as a function that has not attracted interest). Each of these functions is governed by the terms of the ICCPR, or an associated side-agreement, with the Human Rights Committee not being a body with inherent powers.

Research conducted by Professor David Weissbrodt of the University of Minnesota, published in the University of Pennsylvania Journal of International Law in 2010, suggests that the Human Rights Committee’s willingness to comment upon the application of IHL varies according to the function being carried out, with Weissbrodt arguing for greater use of IHL within the complaints function. But the Committee’s hesitancy to invoke IHL in its views on the merits of individual complaints has a strong basis in law, and while there are criticisms about outputs from treaty bodies that do not benefit from a specific factual record already reviewed by the national courts, that criticism cannot amend the treaties and the mandate found therein. The ICCPR’s (First) Optional Protocol limits the Committee to consider alleged “violations of any of the rights set forth in the Covenant”. Several states parties, in their responses to individual complaints, have urged the Committee not to import other legal regimes (whether IHL, or the Refugee Convention, for example) into the ICCPR through the individual complaints process (with 53 of the ICCPR’s states parties not supportive of the Committee handling any complaints given their lack of adherence to the Protocol).

The Human Rights Committee is somewhat more willing to comment on IHL as part of the fuller picture in the state reporting process. But here again, there is a line to be drawn, with the Committee tasked with focusing on the implementation of the ICCPR, rather than a focus on the implementation of the Geneva Conventions. And, as we know, there can be times within a dialogue model when a state will say “We disagree”.

But where the Human Rights Committee has been more emboldened is with respect to general comments, which the Committee describes as providing an authoritative view to assist states parties in fulfilling their reporting obligations. But are general statements authoritative by reason alone of their inclusion in a “General Comment”? Surely the persuasive weight or influence of a text, or parts of a text, can vary according to their content and clarity; a situation that was true of older General Comments that were very general in nature, although the more elaborate and detailed General Comments of recent years can also raise concerns.

The process for creating a general comment can also matter, with the staged adoption of the contents leading to a situation where the Committee may leave the most contentious paragraphs to the end. Paragraphs 64-67, with 15, of General Comment No. 35 provide a recent IHL-related example. Given the body’s part-time nature, plus the understandable desire for a deliverable, this process can be an additional factor in the creation of substantive uncertainties (with some state party views concerning General Comment No. 35 found here).

Lastly, the membership of a human rights body may be relevant in evaluating the persuasive value of its outputs, with there being no requirement for Human Rights Committee members to have competence in the field of IHL. (Indeed, there is no requirement for Committee members to have a legal background; with article 28(2) of the ICCPR requiring “recognized competence in the field of human rights”.) For some, the answer may then lie in providing training in IHL, but is a human rights body providing the persuasive voice of an expert if training is required?

All of which is to say that with regards to the interaction between IHRL and IHL, a distinction arises between a human rights treaty’s substantive guarantees and its provisions about organs and oversight. The applicability of one does not automatically extend the remit of the other.

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Other posts in this series:

1. Introduction to the 3rd Annual Transatlantic Workshop on International Law and Armed Conflict
2. Direct Participation in Hostilities: What Are the Issues and Where Are the Controversies? - Professor Marco Sassòli, University of Geneva, September 8 on InterCross
3. Querying the Roles for Human Rights Bodies in the Interplay between International Human Rights Law and International Humanitarian Law - Professor Joanna Harrington, University of Albert Law School, September 10 on Lawfare
4. Application of IHL by National Courts - Dr Lawrence Hill‐Cawthorne, University of Oxford, September 15 on EJIL:Talk!
5. The Development of International Humanitarian Law by International Criminal Courts and Tribunals - Professor Sandesh Sivakumaran, University of Nottingham, September 17 on Intercross
6. Application of IHL by National Courts - Professor Jeff Kahn, Southern Methodist University, September 22 on Lawfare
7. Humanitarian Relief Operations: Professor Dapo Akande, University of Oxford & Emanuela Gillard, United Nations, September 24 on EJIL:Talk!