Convergence and Conflicts of Human Rights and International Humanitarian Law in Military Operations

Erika De Wet, Jann Kleffner

Description

The book explores the implications of the increased interplay between international human rights law (IHRL) and international humanitarian law (IHL) in military operations, sometimes in ways that imply convergence and other times in ways that suggest conflict. These convergences and/ or conflicts are particularly acute in non-international armed conflicts, situations of belligerent occupation and in the area of peace support operations (PSOs). Non-international armed conflicts imply that individuals, including members of organized non-state armed groups and civilians that directly participate in hostilities, are ‘within the jurisdiction’ of the territorial state against whom they are fighting. IHRL and IHL may therefore apply in parallel. In a similar vein, the control exercised by a belligerent occupant regularly entails an exercise of ‘jurisdiction’ and hence triggers the applicability of human rights norms. As far as PSOs are concerned, it becomes increasingly difficult to classify them as taking place in a context of ‘peace’ or ‘armed conflict’. More often than not, the situation implies elements of both. In all of the aforementioned contexts, the interplay between the fields of IHRL and IHL as the areas of law that provide the most pertinent regulatory frameworks for the conduct of pertinent actors – states, international organisations, organised armed groups and individuals – is elevated to great practical significance. This edited volume contains 16 peer-reviewed essays by academics and practitioners.About the editors:Erika de Wet is Co-Director of the Institute for International and Comparative Law in Africa and Professor of International Law in the Faculty of Law of the University of Pretoria.Jann Kleffner is Professor of International Law and Head of the International Law Centre at the Swedish Defence University.

Sujets

• Economie
• développement
• Politics
• Relations internationales
• Développement
• Géopolitique

Informations

• Publié par: PULP (Pretoria University Law Press)
• Date de parution: 01 janvier 2014
• Nombre de lectures: 3
• EAN13: 9781920538323
• Langue: English
• Poids de l'ouvrage: 2 Mo

Extrait

CONVERGENCE AND CONFLICTS OF HUMAN RIGHTS AND INTERNATIONAL HUMANITARIAN LAW IN MILITARY OPERATIONS

edited by

Erika de Wet Institute for International and Comparative Law in Africa, Faculty of Law, University of Pretoria, South Africa

Jann Kleffner International Law Centre, Swedish National Defence College, Stockholm, Sweden

2014

Convergence and conflicts of human rights and international humanitarian law in military operations

Published by: Pretoria University Law Press (PULP) The Pretoria University Law Press (PULP) is a publisher at the Faculty of Law, University of Pretoria, South Africa. PULP endeavours to publish and make available innovative, high-quality scholarly texts on law in Africa. PULP also publishes a series of collections of legal documents related to public law in Africa, as well as text books from African countries other than South Africa. This book was peer reviewed prior to publication.

For more information on PULP and to download your free electronic copy of this book, see www.pulp.up.ac.za

Printed and bound by: BusinessPrint, Pretoria

To order, contact: PULP Faculty of Law University of Pretoria South Africa 0002 Tel: [phone] Fax: [phone] [e-mail] www.pulp.up.ac.za

Cover: Yolanda Booyzen, Centre for Human Rights, Faculty of Law, University of Pretoria

ISBN: 978-1-920538-32-3

© 2014

PART A: 1

2

3

PART B: 4

5 6

7

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TABLE OF CONTENTS

Affiliations of authors

Introduction

THEORETICAL AND CONCEPTUAL ISSUES

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Human rights protection during armed conflict: what, when and for whom? 3 Iain Scobbie

A gender perspective on the relationship between human rights law and international humanitarian law 21 Bonita Meyersfeld

The applicability of the law of armed conflict and human rights law to organised armed groups 49 Jann K Kleffner

SITUATIONAL PERSPECTIVES

Interplay as regards dealing with detainees in international military operations 67 Bruce ‘Ossie’ Oswald

Interplay as regards conduct of hostilities Michelle Lesh

99

On the relationship between international humanitarian law and human rights law in times of belligerent occupation: not yet a coherent framework 121 Andrea Carcano

The interplay of international humanitarian law and international human rights law in peace operations 153 Marten Zwanenburg

Selected aspects of applicable international human rights law and international humanitarian law in naval counter piracy operations off the east coast of Africa 177 André R Smit

PART C: INSTITUTIONAL PERSPECTIVES The interplay between human rights and 9 international humanitarian law in UN operations Daphna Shraga

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211

10

11

12

Convergence and conflicts of human rights and international humanitarian law in military operations: A NATO perspective 227 Peter M Olson

Conflicts of law: NGOs, international law, and civilian protection in wartime 247 James Ross

The legal advisor in the Canadian armed forces addressing international humanitarian law and international human rights law in military operations 275 Blaise Cathcart

PART D: JUDICIAL PERSPECTIVES The relationship between international human rights 13 and humanitarian law in the African human rights system: An institutional approach 303 Frans Viljoen A regional perspective on the convergence and 14 conflicts of human rights and international humanitarian law in military operations: The European Court of Human Rights 333 Karin Oellers-Frahm Humanitarian law in the Inter-American human 15 rights system 365 Dinah Shelton The jurisprudence of the International Court of Justice 16 and international criminal courts and tribunals 395 Gentian Zyberi

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A FFILIATIONSOFAUTHORS

Carcano, Andreaa Lecturer in International Criminal Law with the is LLM Programme in International Crime and Justice (University of Turin and UNICRI) and an Adjunct Lecturer in Human Rights Law with the Faculty of Law of the University of Milan-Bicocca, Italy. Cathcart, Blaiseis the Judge Advocate General and Major-General of the Canadian Armed Forces, Canada. De Wet, ErikaCo-Director of the Institute for International and is Comparative Law in Africa and Professor of International Law at the Faculty of Law, University of Pretoria, South Africa. Kleffner, Janna Professor of International Law and Head of the is International Law Centre at the Swedish National Defence College, Stockholm, Sweden. Lesh, Michellea Golda Meir Post-Doctoral Fellow at the Hebrew is University of Jerusalem, Israel. Meyersfeld, Bonitais the Director of the Centre for Applied Legal Studies and an Associate Professor at the School of Law, University of the Witwatersrand, Johannesburg, South Africa. Oellers-Frahm, Karina Senior Research Member at the Max Planck is Institute for Comparative Public Law and International Law, Heidelberg, Germany (retired). Olson, Peteris the former Legal Adviser and Director of Legal Affairs at NATO Headquarters in Brussels, Belgium. From 2010 through early 2014 he was the principal legal adviser to then-Secretary General Anders Fogh Rasmussen, and the Organization’s senior legal officer. Oswald, Bruceis Associate Professor of the Melbourne Law School and Director of Asia Pacific Centre for Military Law, Australia. Ross, Jamesis Legal and Policy Director at Human Rights Watch, New York, United States of America. Scobbie, Iain is Professor of Public International Law at the School of Law, University of Manchester, and Visiting Professor of International Law, SOAS, University of London, United Kingdom.

v

viAffiliations of authors

Shelton, Dinah is the emeritus Manatt/Ahn Professor of International Law at George Washington University Law School, United States of America. Shraga, Daphna is an Adjunct Lecturer at Tel-Aviv University and the Hebrew University in Jerusalem, Israel and a former Principal Legal Officer at the Office of Legal Affairs of the United Nations, New York, United States of America. Smit, Andréis an attorney of the High Court of South Africa and a Senior Officer of the South African National Defence Force. He is currently staffed as a Legal Adviser within the Department of Defence Headquarters, Pretoria, South Africa. Viljoen, Fransthe Director of the Centre for Human Rights and is Professor of International Human Rights Law at the Faculty of Law University of Pretoria, South Africa. Zyberi, Gentian is an Associate Professor of International Law at the Norwegian Centre for Human Rights, Faculty of Law, University of Oslo, Norway. Zwanenburg, Martenis Legal Counsel at the Ministry of Foreign Affairs of The Netherlands.

1

Background

I NTRODUCTION

Erika de Wet & Jann Kleffner

This publication resulted from a series of conferences and training sessions involving academics, government officials, military personnel and members of civil society. The series of events took place between August 2011 and June 2013 in the context of a collaborative partnership between the Institute for International and Comparative Law in Africa (ICLA) in the Faculty of Law of the University of Pretoria and the International Law Center of the Swedish National Defence College (SNDC) in Stockholm, with the financial support of the Swedish National Development Agency (SIDA).

The subject matter of convergence and conflicts of human rights and international humanitarian law in military operation was determined by the implications of increased interplay between international human rights law (IHRL) and international humanitarian law (IHL); interplay which at times implies convergence, while at other times conflict. These situations of convergences and/or conflicts are particularly acute in non- international armed conflicts, situations of belligerent occupation, detention and in the area of international peace operations. Non- international armed conflicts imply that individuals, including members of organised non-state armed groups and civilians that directly participate in hostilities, are ‘within the jurisdiction’ of the territorial state against whom they are fighting. IHRL hence applies as much as IHL does. In a similar vein, the control exercised by a detaining or occupying power entails an exercise of ‘jurisdiction’ and hence triggers the applicability of human rights norms. As far as peace operations are concerned, it becomes increasingly difficult to classify them as taking place in a context of 'peace' or 'armed conflict'. More often than not, the situation implies elements of both.

These realities in turn elevate the interplay between the fields of IHRL and IHL to a great practical significance, as these areas of law provide the

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viiiIntroduction

most pertinent regulatory framework for the conduct of non-international armed conflicts, detention, belligerent occupation and peace operations. In some situations this interplay results in layers of protection, a better understanding of which can inform responses to the nature of contemporary organised armed violence. Moreover, the pervasiveness of non-international armed conflicts on the African continent makes it imperative that institutions on the continent – whether academic, governmental or humanitarian – further their understanding of the interplay between IHRL and IHL. In addition, given the growing demand for peace operations in Africa and South Africa’s prominence as a regional power, the importance of in-depth knowledge of the regulatory framework applicable during peace operations is indispensable.

Before ICLA and the SNDC undertook the above mentioned collaborative partnership, there was no institution in South Africa (or elsewhere on the African continent) that explored the interplay between IHRL and IHL and its implications for the regulatory framework of military operations in any depth. As a result, the government, military and humanitarian organisations had to rely on foreign expertise for assistance with legislative reform in areas that affected military operations, training of military personnel, as well as training of humanitarian workers active in conflict areas.

The series of conferences and training events culminating in these conference proceedings contributes to filling a major gap in practical and scholarly relevance for the African region as a whole. The proceedings, which consist of chapters written by eminent scholars and practitioners in the fields of IHL and IHRL, serve as an important point of reference for all stakeholders working on the interface between these two areas. The publication focuses exclusively on issues of interplay between IHL and IHRL and attempts to unpack (if not necessarily resolve) some of the major challenges pertaining to such interplay. No other publication of its kind exists on the African continent and very few similar publications exist in other regions. The choice for Pretoria University Law Press, the peer reviewed publisher of the Faculty of Law of the University of Pretoria, is an obvious choice in light of its standing and distribution network on the African continent and the relevance of the topic for the African continent in particular.

2

Chapter overview

The topics covered in the proceedings reflect the approach followed during the conferences and training sessions, namely to combine theoretical, conceptual and practice oriented presentations. Given the breadth and depth of the current debate surrounding the interrelationship between IHL and IHRL during contemporary military operations, it would have been impossible to give the subject an exhaustive and comprehensive treatment.

Introduction ix

Instead, a number of themes were selected that raise particularly intricate questions, be it on the foundational, practical, institutional or adjudicative level. Accordingly, the selected themes fall into four broad categories, that lie at the basis of the structure of the present book.

A first cluster (Part A) assembles some contributions that address foundational issues of a more theoretical or conceptual nature that underlie IHL and IHRL and their interrelationship. In Chapter 1, Iain Scobbie examines the fundamental question whether and to what extent the two fields of international law can be reconciled at all. He does so against the backdrop of a juxtaposition of the rights that IHL affords to those who do not or no longer participate in hostilities, on the one hand, and the rights that IHRL affords to combatants, on the other hand. Thereafter the focus of the first cluster of the book shifts to the conceptualisation of two aspects of the relationship between IHL and IHRL that are of particular relevance in the African context and because of the global trends and nature of contemporary organised armed violence. The first concerns the (lacking) gender perspective on the relationship between IHL and IHRL. In Chapter 2 Bonita Meyersfeld traces the trajectory of IHL and IHRL’s responses to gender-based violence, identifies main areas of convergence that still oughtto occur, as well as pleads for the change necessary for an appropriate response to the changing nature of conflict and its impact on women. In Chapter 3, Jann Kleffner examines whether and to what extent the two fields of IHL and IHRL are applicable to organised armed groups. Recalling that IHL is generally accepted to bind organised armed groups, while the binding nature of IHRL on such groups is subject to significant controversy, he subjects the explanations of why the two areas of law are purported to apply to a critical examination.

Part B then turns to five situations in which the interrelationship of IHL and IHRL poses particularly acute problems. In Chapter 4 Bruce Oswald explores the application of IHL and IHRL when taking and handling detainees. He examines, in particular: the phases of detention in military operations; the legal regimes that apply to detention; the approaches taken by some states, international organisations and tribunals to the interplay; and how the interplay impacts on the treatment of detainees.

In Chapter 5 Michelle Lesh examines the convergence and conflicts of the normative frameworks of IHL and IHRL during the conduct of hostilities. She illustrates the complexities of the relationship between the two regimes by assessing the extent to which the right to life in IHRL comes to play a role during military operations that are regulated by the rules on the conduct of hostilities under IHL. Central to her analysis is the role of thelex specialis doctrine as informed by the principles of military necessity and humanity.

xIntroduction

Chapter 6, written by Andrea Carcano, analyses the relationship between the law of belligerent occupation and its relationship with IHRL. After first illustrating the legal basis on which one can argue that a state is required to comply with IHRL in the territory it happens to occupy, the chapter explores the extent to which IHRL has impacted on the authorities, responsibilities, and duties of an occupying power as framed by the law of occupation. It further examines the implications of the law of occupation aslex specialisfor the applicability of IHRL during occupation, as well as whether adherence to IHRL standards could augment the normative powers of the occupying power.

In Chapter 7 Marten Zwanenburg illuminates the relationship between IHL and IHRL in peace operations, specifically multinational operations established or authorised by the United Nations to establish or maintain international peace and security. He explores the applicability of IHL and IHRL to these operations, paying particular attention to the question whether the law of international armed conflicts or that of non- international armed conflict would be relevant. He also explores the implications of the role oflex specialisin situations where both IHRL and IHL apply during peace operations.

Andre Smit deals with selected issues of IHL and IHRL in naval counter-piracy operations in Chapter 8. His chapter is situation specific in as far as it provides a South African perspective on the international law framework behind African driven counter piracy operations. It discusses the context of the Somali piracy, the international law on maritime piracy, alternative international crimes to maritime piracy, and analyses the application of IHL and IHRL to the combating, capturing, arrest and transfer of maritime pirates.

The subsequent four chapters constitute Part C, in which the focus is shifted from specific situations in which the interrelationship occurs to the perspectives of a number of central institutions on that interrelationship. Chapter 9, written by Daphna Shraga, focuses on the interplay between IHL and IHRL during United Nations operations. Although the chapter deals with questions that to some extent overlap with those dealt with by Marten Zwanenburg in Chapter 7, it takes a different perspective. It emphasises in particular the perspective of the United Nations on the applicability of IHL and IHRL to its operations, as distilled from the organisation’s practice in the context of the administration of territories; the practicing of law and order functions (such as arrest and detention); the handing over of individuals on United Nations premises to national authorities for prosecution; and the responsibility of the organisation for violations of IHL and IHRL.

Chapter 10 addresses the interplay between IHL and IHRL from the perspective of the North Atlantic Treaty Organization (NATO). Peter Olson illuminates how NATO’s mission, history and resulting structure

Introduction xi

directly shapes its approach to the interplay between IHL and IHRL. Since NATO is designed to function as a mechanism for common action by sovereign states rather than as an autonomous entity, it has not developed a single doctrine in this regard. Instead, it applies IHL and IHRL in NATO operations in a manner reflecting the individual national legal positions of the 28 Allies. The chapter examines the implications of this approach against the background of recent NATO practice.

In Chapter 11 James Ross elaborates on ways in which human rights organisations have sought to obtain better protections for civilians and captured fighters and populations at risk during armed conflict. The rational of the chapter is that the overlap between IHL and IHRL can provide better protection to those at risk without threatening the role of IHL in wartime situations.

Chapter 12 concludes part C with an analysis of the role of the legal advisor in applying IHL and IHRL during military operations. Taking a Canadian perspective, Blaise Cathcart discusses the impact of IHL and IHRL in the provision of legal advice by legal advisors of armed forces during armed conflict. He elaborates in particular on the extra-territorial application of IHRL during armed conflict, being one of the most challenging and controversial issues that legal advisors are confronted with.

Part D, which consists of four chapters, constitutes the final part of the book. It focuses on the role of the most prominent international judicial bodies in giving effect to the interplay between IHL and IHRL through their jurisprudence. In Chapter 13, Frans Viljoen explores the relationship between IHL and IHRL in the African human rights system. The chapter deals with the fledgling attempts as well as the future potential of the African Commission on Human and Peoples’ Rights, the African Court on Human and Peoples’ Rights and the African Committee of Experts on the Rights of the Child to apply IHL either indirectly through interpretation or in a more direct manner.

In Chapter 14 Karin Oellers-Frahm examines the extent to which the European Court of Human Rights (ECtHR), which has jurisdiction to interpret and apply the European Convention on Human Rights, has to consider IHL aslex specialisin cases that result from armed conflicts. This raises questions as to whether IHL can be directly applicable by the ECtHR ratione materiae; about the limits of the jurisdiction of the ECtHRratione personae; and the manner in which IHL shapes the ECtHR’s decisions on the merits.

In Chapter 15 Dinah Shelton illuminates how the Inter-American Commission and Inter-American Court of Human Rights have considered the relationship between IHRL and IHL. She outlines the (sometimes divergent) approaches of these bodies in relation to the scope of their