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Celebrating the 70th anniversary of the Geneva conventions: the contribution of the Council of Europe to the increasing synergy between International Humanitarian Law and International Human Rights Law

Report | Doc. 15394 | 18 October 2021

Committee
Committee on Legal Affairs and Human Rights
Rapporteur :
Lord Richard BALFE, United Kingdom, NR
Origin
Reference to committee: Doc. 14925, Reference 4464 of 30 September 2019. 2021 - November Standing Committee

Summary

2019 marked the 70th anniversary of the Geneva Conventions, which codified much of modern international humanitarian law. The Council of Europe and the European Convention on Human Rights also marked their 70th anniversaries around this time. All have as their essential aims the maintenance of peace and the protection of individuals through international law and co-operation.

In certain circumstances, the regimes of international humanitarian law and international human rights law may overlap. Specific provisions of the two regimes on certain common issues are, however, not always identical. The needs for legal certainty and effective protection of individual rights require careful interpretation of relevant provisions, in order to ensure that the two legal regimes remain complementary and coherent. The committee welcomes the major contribution made by the Council of Europe, and in particular the European Court of Human Rights, to achieving this goal.

Recalling that all member States of the Council of Europe are parties to the European Convention on Human Rights and to the 1949 Geneva Conventions, it proposes that the Assembly call on the relevant national authorities to follow closely the evolution of the case law of the European Court of Human Rights as regards the interplay between international humanitarian law and international human rights law, as well as developments in other fora; ensure that relevant actors, including private military and security companies, are properly trained in the essential content and practical application of international humanitarian law and relevant provisions of international human rights law; and provide procedural guarantees for the respect of international humanitarian law and relevant provisions of international human rights law within the context of armed conflict.

A Draft resolutionNote

1. The year 2019 marked the 70th anniversary of the four Geneva Conventions, which codified much of modern international humanitarian law, the principal legal regime that regulates the conduct of warfare. It is no coincidence that both the Council of Europe and its foundational human rights instrument, the European Convention on Human Rights (ETS No. 5), also marked their 70th anniversaries around this time. All have their foundations in the aftermath of the Second World War, and have as their essential aims the maintenance of peace and the protection of individuals through international law and co-operation.
2. Both international humanitarian law and international human rights law have long histories predating the post-war adoption of the aforementioned conventions. Specific provisions of the two legal regimes on certain common issues are not always identical, but they are based on the same fundamental principles of humanity and human dignity. International humanitarian law is a set of special rules intended to apply only in the specific circumstances of armed conflict, whereas international human rights law is general and, in principle, applies in all circumstances.
3. In certain circumstances, the two regimes may overlap. The needs for legal certainty and effective protection of individual rights require careful interpretation of relevant provisions in such circumstances, in order to ensure that the two legal regimes remain complementary and coherent, and to prevent further fragmentation of international law in the relevant areas.
4. The Council of Europe, and in particular the European Court of Human Rights that is responsible for interpreting and supervising the implementation of the European Convention on Human Rights, has made a major contribution to achieving this goal. In a series of landmark judgments, building also on case law of the International Court of Justice, the European Court of Human Rights has helped to clarify the interaction between international humanitarian law and international human rights law, as laid down in the European Convention on Human Rights. This has been a complex and challenging task, given the general terms in which the Convention is expressed and the fact that the Court normally adjudicates not on abstract principles of law, but on their application to specific sets of facts..
5. The Assembly therefore welcomes the contribution of the Council of Europe, and in particular the European Court of Human Rights, to increasing synergy between international humanitarian law and international human rights law. This contribution has improved the effectiveness of international law as a whole in ensuring protection of the rights of individuals during armed conflict.
6. The Assembly recalls that all member States of the Council of Europe are parties to the European Convention on Human Rights and to the 1949 Geneva Conventions. It therefore calls on the relevant authorities of member States to:
6.1 follow closely the evolution of the case law of the European Court of Human Rights as regards the interplay between international humanitarian law and international human rights law, as well as developments in other fora, including the International Court of Justice;
6.2 ensure that their armed forces, military personnel, State officials, judiciary, and private military and security companies are properly trained in the essential content and practical application of international humanitarian law and relevant provisions of international human rights law, keeping abreast of the evolving case law of the European Court of Human Rights;
6.3 provide within their domestic legal systems procedural guarantees for the respect of international humanitarian law and relevant provisions of international human rights law within the context of armed conflict, including effective mechanisms for holding to account the perpetrators of any violations;
6.4 report on a regular and voluntary basis on the implementation of these measures.

B Explanatory memorandum by Lord Richard Balfe, rapporteur

1 Introduction

1. The present report arises from a motion for a resolution presented by Mr Vladimir Vardanyan (Armenia, EPP/CD) and others on 26 June 2019, which was referred to our committee for report on 30 September 2019. I was appointed rapporteur on 1 October 2019.
2. The motion was tabled to mark the 70th anniversaries of both the adoption of the four Geneva Conventions, and the founding of the Council of Europe. It notes the significance of the Geneva Conventions in increasing the levels of protection of victims of armed conflicts, the role of the Council of Europe in increasing human rights standards, and the interaction between these two areas of law. It further notes references to the Geneva Conventions in certain Council of Europe treaties, as well as the influence of international humanitarian law on the jurisprudence of the European Court of Human Rights (the Court). On this basis, it proposes a resolution that would contribute to continuing synergy between international humanitarian law (IHL) and international human rights law (IHRL).

2 International humanitarian law: Geneva and the Hague

3. The 1949 Geneva Conventions were not the first international treaties to codify the law regulating the conduct of armed conflict (jus in bello, as opposed to jus ad bellum which regulates the conditions under which States may resort to armed conflict). The very first Geneva Convention was signed in 1864, at the initiative of the Red Cross, which itself had been established in 1863. One of the founders of the Red Cross, Jean-Henri Dunant, had witnessed first-hand the suffering of wounded soldiers at the 1859 Battle of Solferino, and the Geneva Convention was intended “for the amelioration of the condition of the wounded in armies in the field” (its full title).
4. The original Geneva Convention was supplemented by the Hague Conventions of 1899 and 1907, which amongst other things prohibited the use of certain weapons, such as poison gas and soft-point bullets, and certain means of warfare; applied the principles of the Geneva Convention to maritime warfare, and otherwise regulated its conduct; and introduced protections for prisoners of war and civilians. Alongside this, in 1906, the original Geneva Convention itself was revised, adding detail and precision to existing provisions, as well as new provisions.
5. There was further significant development of IHL following the First World War. The Geneva Convention was again revised and a second Geneva Convention, incorporating provisions from the Hague convention on prisoners of war, was adopted.
6. These strands were brought together after the Second World War, when the original Geneva Convention was again revised as the First Geneva Convention (GC (I), protecting wounded and sick soldiers on land during war), the Hague Convention on maritime warfare was revised as the Second Geneva Convention (GC (II), on wounded, sick and shipwrecked military personnel at sea during war), the Geneva Convention on prisoners of war was revised as the Third Geneva Convention (GC (III), on prisoners of war), and the Hague Convention on civilians was revised as the Fourth Geneva Convention (GC (IV), on civilians, including in occupied territory). The remaining Hague conventions largely regulate the ways in which war may lawfully be conducted (for example use of certain weapons).
7. The 1949 Geneva Conventions all include a ‘common Article 3’, applicable to situations of non-international armed conflict. This notably requires the parties to such a conflict to treat humanely, without discrimination, all persons not taking an active part in the combat, including combatants who have surrendered or who are sick, injured or detained. In particular, it prohibits ‘violence to life or person’, including murder, mutilation, cruel treatment or torture; prohibits hostage taking; prohibits ‘outrages upon personal dignity’, in particular humiliating and degrading treatment; prohibits punishment without law, and requires fair trial guarantees; and requires that the wounded and sick be collected and cared for.
8. In 1977, two additional protocols to the 1949 Geneva Conventions were adopted: the first on the protection of victims of international armed conflicts; and the second on the protection of victims of non-international armed conflicts. A third protocol, in 2005, created a third ‘distinctive emblem’, known as the ‘red crystal’, to identify and enable combatants to respect an armed force’s medical service; the other ‘distinctive emblems’ are the red cross and the red crescent.
9. It should also be noted that conventional IHL is supplemented by customary rules of international law on certain issues. For example, torture is prohibited both by the Geneva Conventions and the protocols themselves (see below), and as a peremptory norm of international law; whereas slavery is prohibited during both international and non-international armed conflict as a matter of customary international law, even if this prohibition is not included in the Geneva Conventions or the protocols.Note

3 International humanitarian law and international human rights law

10. It can be seen from the foregoing that the codification of humanitarian law at international level developed earlier than that of human rights law in the modern sense. The immediate post-Second World War period was crucial for both, however: in 1948, one year before the four Geneva Conventions were adopted, the United Nations General Assembly adopted the Universal Declaration of Human Rights (UDHR); and in 1950, one year after the Geneva Conventions were adopted, the Council of Europe adopted the European Convention on Human Rights (ETS No. 5, hereafter the Convention), which, according to its preamble, aimed at “securing the universal and effective recognition and observance of the Rights” set out in the UDHR.
11. Some fundamental principles of public international law are common to both IHL and IHRL. The prohibition on torture, for example, is reflected in both IHL (prohibited by provisions in all four Geneva Conventions, which establish torture as a “grave breach” of IHL; under Additional Protocol I, torture is considered a war crime) and IHRL (for example article 3 of the Convention). Freedom of religion is protected under both IHL (for example GC (III), articles 34-37, GC (IV), article 93) and IHRL (for example art. 9 of the Convention). Judicial procedural guarantees are set out in both IHL (for example GC (III), article 99, GC (IV), article 71) and IHRL (for example article 6 of the Convention). This is generally the case in relation to peremptory norms of international law, which are held to be binding on all States, regardless of whether they have ratified certain treaties.
12. On other issues that are addressed by both IHL and IHRL, the legal situation is complicated by the fact that the relevant provisions are often similar, but not identical. The question may therefore arise as to which area of law, and which particular provision, is applicable in a given situation. In the case of IHL and IHRL, the legal maxim lex specialis derogat legi generali (specific rules prevail over general rules) applies.
13. In the view of the International Committee of the Red Cross (ICRC), “IHL constitutes the lex specialis governing the assessment of the lawfulness of the use of force against lawful targets in international armed conflicts. The interplay of IHL rules and international human rights standards on the use of force is less clear in non-international armed conflicts, and the use of lethal force by States in such conflicts requires a fact -specific analysis of the interplay between the relevant rules.”Note “[M]ost of the provisions of both branches are complementary. On some issues however, such as the use of force and admissible grounds and relevant procedure of internment, the applicable rules of the two branches lead to different results. Then, the question arises as to which provision prevails. The maxim of lex specialis is still generally solicited to solve the problem, although the maxim itself is today surrounded by much controversy regarding its meaning and the way to apply it or even objections against its very applicability.”Note
14. The International Court of Justice (ICJ) has had occasion to examine this relationship. In its Advisory Opinion on ‘the legal consequences of the construction of a wall in the Occupied Palestinian Territory, the ICJ found that “the protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation of the kind to be found in Article 4 of the International Covenant on Civil and Political Rights. 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.”Note
15. In its Advisory Opinion on ‘the legality of the threat or use of nuclear weapons’, the ICJ noted that “the protection of the International Covenant on Civil and Political Rights does not cease in times of war, except by operation of Article 4 of the Covenant... 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. Thus whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the Covenant, can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself.”Note
16. Commenting on the ICJ’s ‘nuclear weapons opinion’, the Study Group of the International Law Commission observed that “Even as [the principle of lex specialis] works so as to justify recourse to an exception, what is being set aside does not vanish altogether. The [ICJ] was careful to point out that human rights law continued to apply within armed conflict... It did not function in a formal or absolute way but as an aspect of the pragmatics of the Court’s reasoning. However desirable it might be to discard the difference between peace and armed conflict, the exception that war continues to be to the normality of peace could not be simply overlooked when determining what standards should be used to judge behaviour in those (exceptional) circumstances. Legality of Nuclear Weapons was a ‘hard case’ to the extent that a choice had to be made by the [ICJ] between different sets of rules none of which could fully extinguish the others. Lex specialis did hardly more than indicate that though it might have been desirable to apply only human rights, such a solution would have been too idealistic, bearing in mind the speciality and persistence of armed conflict.”Note
17. The European Court of Human Rights has also examined the relationship between IHL and IHRL, most notably in the case of Hassan v. United Kingdom, which concerned internment (preventive detention), with no intention of bringing charges within a reasonable time, of an Iraqi national detained by British forces in Iraq shortly after the 2003 invasion.Note The Court noted that article 5 of the Convention, which establishes the lawful exceptions to the right to liberty and security, did not include internment. It recalled to its “constant practice” of interpreting the Convention in accordance with the 1969 Vienna Convention on the Law of Treaties (the Vienna Convention). Referring to article 31(3)(b) of the Vienna Convention,Note the Court found that the fact that no State party to the Convention had lodged a derogation to article 5 in relation to an international armed conflict established their agreement that internment was not ipso facto impermissible under the Convention.Note The Court then referred to article 31(3)(c) of the Vienna ConventionNote and the Court’s doctrine that “the Convention must be interpreted in harmony with other rules of international law of which it forms part”. On this basis, the Court concluded that:
“104. […] By reason of the co-existence of the safeguards provided by international humanitarian law and by the Convention in time of armed conflict, the grounds of permitted deprivation of liberty set out in subparagraphs (a) to (f) of that provision should be accommodated, as far as possible, with the taking of prisoners of war and the detention of civilians who pose a risk to security under the Third and Fourth Geneva Conventions. The Court is mindful of the fact that internment in peacetime does not fall within the scheme of deprivation of liberty governed by Article 5 of the Convention without the exercise of the power of derogation under Article 15. It can only be in cases of international armed conflict, where the taking of prisoners of war and the detention of civilians who pose a threat to security are accepted features of international humanitarian law, that Article 5 could be interpreted as permitting the exercise of such broad powers.”
18. The Court has shown its willingness to apply also article 2 (right to life) by reference to IHL in cases of international armed conflict. In the case of Varnava and others v. Turkey,Note the Court (over the dissenting opinion of the Turkish judge, who considered that the Court lacked jurisdiction ratione temporis) found that whilst IHL applied to those engaged in hostilities, certain provisions of IHRL still applied to those not, or no longer engaged in hostilities:Note
“185. […] Article 2 must be interpreted in so far as possible in light of the general principles of international law, including the rules of international humanitarian law which play an indispensable and universally accepted role in mitigating the savagery and inhumanity of armed conflict. The Court therefore concurs with the reasoning of the Chamber in holding that in a zone of international conflict Contracting States are under obligation to protect the lives of those not, or no longer, engaged in hostilities. This would also extend to the provision of medical assistance to the wounded; where combatants have died, or succumbed to wounds, the need for accountability would necessitate proper disposal of remains and require the authorities to collect and provide information about the identity and fate of those concerned, or permit bodies such as the ICRC to do so.”
19. In November 2019, the Council of Europe’s Steering Committee for Human Rights (CDDH) adopted a report on ‘the place of the European Convention on Human Rights in the European and international legal order’.Note The CDDH report notes two key legal issues concerning the coexistence of IHL and IHRL during conflict. The first concerns non-international armed conflicts, where various ”sets of complexities” arise: a state’s refusal to categorise a situation on its territory as a non-international armed conflict; a state’s involvement in a non-international armed conflict outside its territory; and difficulties in “determining the content of some of the rules relating to non-international armed conflicts, which are still largely derived from customary international law” (although it should be recalled that common Article 3 of the Geneva Conventions codifies certain minimum standards applicable in non-international armed conflict).
20. The second issue identified in the CDDH report concerns derogations under Article 15 of the Convention. The Court in Hassan had found that due to the States parties’ established practice of not derogating from the Convention in relation to international armed conflicts, IHRL could continue to apply, interpreted in the light of IHL as lex specialis. Reflecting on this, the CDDH considered that:
“258. […] It is conceivable that there may be cases where derogation may provide an appropriate route in relation to an extra-territorial conflict situation. There may be questions as to the applicability of Art 15, but to the extent that the Convention is applicable extra-territorially it would seem logical that Article 15 is also applicable. Any actual derogation would require justification in any event, but it would seem that the terms of Article 15 should be read sufficiently broadly to allow a derogation in principle when a State is acting extra-territorially.”
21. In an information note to our committee, Mr Raphaël Comte (Switzerland, ALDE), rapporteur on “State of emergency: proportionality issues concerning derogations under Article 15 of the European Convention on Human Rights”, examined a series of questions arising in this context.Note Mr Comte noted that since no State had derogated from the Convention in relation to an international armed conflict, the Court had not had occasion to interpret the meaning of “war” within Article 15, or to determine whether a “war” must “threaten the life of the nation” in order for derogation to be justifiable. He further noted that Article 15 prohibits derogation from certain Convention rights, namely the right to life (other than deaths resulting from lawful acts of war – Article 2), the prohibition on torture and inhuman or degrading treatment or punishment (Article 3), the prohibition on slavery and servitude (Article 4) and the prohibition on punishment without law (Article 7). Furthermore, the UN Human Rights Committee had noted that there could be no derogation from IHL or peremptory norms of international law, such as the prohibitions on hostage taking, collective punishment or arbitrary deprivation of liberty, or fundamental fair trial guarantees; or from procedural guarantees necessary to protect non-derogable rights.
22. Mr Comte’s information note concludes by noting that
“18. […] the Convention right most likely to be at risk of being violated during overseas armed conflict and in respect to which there may appear to be some interest in derogating is the substantive limb of the right to life in Article 2 – notably as regards deliberate targeting of enemy combatants, which is permissible under international humanitarian law but prohibited under Article 2. Some commentators have noted that as regards the issue of states’ obligation to protect against incidental loss of civilian life, the Court’s approach is already similar to that taken under international humanitarian law. The issue of protection of the right to life in armed conflicts is expected to be further addressed in the forthcoming Court judgment in the case of Georgia v. Russia (no. 2).”Note
23. The Georgia v. Russia (II) case concerns the August 2008 armed conflict between Georgia and the Russian Federation. The Georgian Government claimed that Russian and South Ossetian military forces had committed violations of the Convention in the course of this conflict. It further asserted that the Russian Federation had asserted effective control and authority over the areas where these violations had occurred, and/ or “exercised jurisdiction through state agent authority or control” (over affected individuals), thus bringing those violations within its extra-territorial jurisdiction under the Convention. The Russian Government argued that the alleged events took place outside its jurisdiction or effective control; furthermore, Russia’s obligations during the international armed conflict were governed exclusively by IHL, and the Court had no jurisdiction over Russia’s compliance with its obligations under IHL.
24. Of course, the main issue at stake in this case was whether or not Russian forces had committed human rights violations during the 2008 conflict, but that question is beyond the scope of the present report. For the purposes of this report, it is the Court’s judgment on the question of jurisdiction and on the content and applicability of Convention rights that is of interest.
25. The Court divided the period during which Russian and/ or South Ossetian forces were active into two parts: an “active phase of hostilities during the five-day war after the intervention by the Russian armed forces” that lasted from 8 August 2008 until the ceasefire agreement of 12 August 2008; and an “occupation phase after the cessation of hostilities”, after 12 August 2008. The Georgian Government had submitted that the military operations by Russian and/ or South Ossetian armed forces gave rise to violations of article 2 of the Convention (right to life) during the “active phase”. Having reviewed its case law on extraterritorial jurisdiction, the Court immediately concluded that during the “active phase”, Russia had not exercised “effective control” over the territory in question, noting that “the very reality of armed confrontation and fighting between enemy military forces seeking to establish control over an area in a context of chaos means that there is no control over an area” (paragraph 126). As to “state agent authority or control”, the Court distinguished earlier judgments where there had been an “element of proximity”, as opposed to the present case which involved bombing and artillery shelling. Referring again to “the very reality of armed confrontation and fighting between enemy military forces seeking to establish control over an area in a context of chaos”, the Court concluded that this “also excludes any form of “State agent authority and control” over individuals” (paragraph 137). On this basis, the victims of the alleged violations did not fall within Russia’s extraterritorial jurisdiction under the Convention. Contrary to the expectations expressed by Mr Comte in 2015, therefore, the Court did not have occasion to express itself on the interpretation and application of article 2 of the Convention in the context of armed conflict, nor on its relationship with protection of the right to life under IHL.
26. The Court itself recognised that “such an interpretation of the notion of “jurisdiction” in Article 1 of the Convention may seem unsatisfactory to the alleged victims of acts and omissions by a respondent State during the active phase of hostilities in the context of an international armed conflict outside its territory but in the territory of another Contracting State, as well as to the State in whose territory the active hostilities take place” (paragraph 140). Indeed, many academic commentators have expressed surprise at the judgment and raised questions as to its implications. It is not the purpose of this report to explore or assess these criticisms; rather, it is simply to take note of the current state of the Court’s case law on relevant issues. At the same time, given that the Court interprets the Convention as a “living instrument”, one cannot exclude that the case law will continue to evolve in future in the context of different factual situations.

4 Conclusions and recommendations

27. IHL and IHRL were both subject to significant development and codification in response to the Second World War and the authoritarian regimes that had provoked its outbreak and committed atrocities against civilian populations both before and during the war. This helped to ensure that both branches of law are based on the same fundamental principles of humanity and human dignity. As international courts, including the European Court of Human Rights, have continued to elaborate the concept of extra-territorial jurisdiction, questions as to the application of IHL and IHRL in situations of international armed conflict have arisen. Both the European Court and the International Court of Justice have contributed to a growing understanding of the interplay between the two branches of law. The European Court’s recent judgment in the case of Georgia v. Russia (II) may have marked an unexpected turn from the previous tendency of interweaving principles of IHL and IHRL in situations of armed conflict, but it should nevertheless give further clarification to States of the type and scope of legal obligations that bind them during armed conflict.
28. The Assembly can only welcome the continuing clarificiation and refinement of the legal standards applicable to the protection of individuals during armed conflict. It should note the important contribution of the European Court of Human Rights to this process, in particular how the Court has defined the application, and limitations on the application, of the guarantees provided by the European Convention on Human Rights to situations of armed conflict, even where the regime of IHL also applies. Finally, it should encourage all States parties to the Convention – all of which are also parties to the Geneva Conventions – to ensure that their armed forces are properly trained in the relevant standards, and respect them in practice, and that the necessary procedural guarantees are in place to enforce these standards.