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 Convention
Note 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.
