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University of Gondar School of Law Postgraduate Program (LLM in Human Rights) Course Title: International Human Right Law Individual Assignment – The Relationship between IHRL and IHL: Possible Scenarios of Applying IHRL in Armed Conflicts...

University of Gondar School of Law Postgraduate Program (LLM in Human Rights) Course Title: International Human Right Law Individual Assignment – The Relationship between IHRL and IHL: Possible Scenarios of Applying IHRL in Armed Conflicts Submitted by: Zinash Zewdiye LLM Candidate ID No: GUR/00053/16 Submitted to Course Instructor Wakjira T. February, 2025 The Relationship between IHRL and IHL: Scenarios of Applying IHRL in Armed Conflicts International Human Rights Law (IHRL) primarily governs the relationship between state and individuals Vis a Vis protecting the claims of individuals against the government. International Humanitarian Law (IHL) concerns itself with the regulation of the conduct of conflicting parties in armed hostilities.1 Traditionally, IHRL as lex generalis, applies only to peace time scenarios but now a days, its realm in armed hostilities is also being established. 2 In the context of human rights as they pertain to individuals during armed conflict, some rights are governed exclusively by International Humanitarian Law (IHL), such as the conduct of hostilities and the treatment of the wounded and sick and, others are solely governed by International Human Rights Law (IHRL), including rights like freedom of the press, the right to assemble, the right to vote, or the right to strike. 3 Additionally, certain rights, such as the prohibition of torture, fall under both legal frameworks as both legal regimes guarantee the prohibition against torture. 4 The applicability of IHRL on armed conflicts or its relation with IHL has been debated by scholars long before now. 5 The International Court of Justice (ICJ), in its advisory opinion on the Legality of the Threat or Use of Nuclear Weapons, dictated that the regime of IHRL neither ceases to apply nor be replaced by IHL in cases of armed conflicts.6 Such opinion is important in grasping the applicability of IHRL even in times of hostility except that some rights, such as the right to life, can be derogated at such times, and the ‘arbitrariness’ in the deprivation of life is to be assessed using the lex specialis (IHL).7 Thus, even when applying human rights law, reference 1 Common Article 2, Geneva conventions of 1949 2 International Human Rights in Armed Conflicts, Legal Fact Sheet, Democratic Progress Institute 3 Ibid. 4 See Article 7, ICCPR, Article 3 ECHR; Common Article 3 GCs, Article 75 I AP 26, Article 18 ICCPR, Article 9 ECHR; Article 58 Geneva Convention IV 5 G.I.A.D. Draper, “The relationship between the human rights regime and the laws of armed conflict,” Israel Yearbook on Human Rights, Vol. 1, 1971, p. 19 6 Legality of the threat or use of nuclear weapons, advisory opinion, 8 July 1996, ICJ Reports, 1996, para. 25. 7 Ibid. 1 is to be made to the special law, IHL, to assess certain provisional Elements. In Al-Skeini vs. UK, the European Court of Human Rights (ECtHR) decided that the state obligation of UK under ECHR applies in Iraq at the time of armed hostilities and found that UK was accountable for the death of civilians and non-combatants under its jurisdiction in areas of armed conflicts as per ECHR.8 In another advisory opinion of ICJ on the construction of the wall on the occupied Palestinian territory, the court reasoned that the occupying power is duty-bound to comply with those obligations imposed by the IHRL and the opinion did manifest three possible situations in the relationship between IHL and IHRL: namely, 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. 9 The court held that the construction of the wall by Israel was no a military necessity and it violated the right to work, the right to health, the right to education, and the right to a basic standard of living under the ICESCR. About the complementarity, there are scenarios where IHRL applies to armed hostilities. For example, in the case of DRC Vs Uganda, the ICJ hails the complementary application of the two bodies of law, holding Uganda responsible as occupying power and, therefore, found guilty of contravening the provisions of not only IHL but also IHRL, reiterating its conclusion on the Palestinian wall case.10 The decision marks the simultaneous application of IHL and IHRL regimes. The court listed out relevant IHRL instruments that Uganda violated, such as ICCPR (prohibition of torture and inhuman treatment) and CRC, therefore affirmed that 8 Al-Skeini and Others v. United Kingdom, Application no. 55721/07, Council of Europe: European Court of Human Rights, 7 July 2011, para 90 and 91. 9 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, para. 106. (See also para 107-113) 10 Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), ICJ, Judgement, 19 December 2005, para 181-195 2 human rights can be applied in times of belligerent occupation implying that IHRL can be applied extra territorially either in effective control over the place or power over a person.11 The ICTY frequently uses human rights law instruments and practices due to their similar goals, values, and terminology, as they help determine the content of customary international law in humanitarian law, which has fused with human rights law.12 It has been suggested that while they are merely not subject to IHL, a party to the conflict may engage in violations that are unrelated to the war and to which IHRL applies. In a similar vein, IHRL constantly oversees law enforcement, including in nations where there is armed conflict. 13 Human rights law offers the best framework in situations that are far from the battlefield and where state authorities have sufficient control over the situation to conduct law enforcement activities. 14 So, even in armed conflicts, human rights laws take the lead whenever the acts are remote from the general conflicts, even though they are committed within the framework of the general conflict. In internal armed conflicts, the state reserves to fight rebellion but within the limits of international human rights law, and where also IHL is silent, human rights laws can take the lead in the application. 15 The Lex specialist doctrine, as coined by ICJ, doesn't automatically exclude IHRL from the application. (For example, the right to life as in human right instruments can’t be rejected in time of war but will be assessed complimentarily with relevant IHLs) and in certain circumstances, both HRL and IHL may be lex specialised in this scenario, one set of norms cannot automatically reject the other without taking into account the appropriation of the other's 11 Id, para 216 12 Prosecutor V. Dragoljub Kunarac Radomir Kovac and Zoran Vukovic, It-96-23-T, Judgment, 22 Feb. 2001, Para. 467. (Kunarac case) 13 Seid Demeke, The Role of Human Rights Law in Improving Law of the Internal Armed Conflict, BDU Journal of Law, 2014, Vol. 4, No. 2. p. 426 14 Cordula Droegethe Interplay Between International Humanitarian Law And International Human Rights Law In Situations Of Armed Conflict, Sr. L. Rev. Vol. 40, No.2, pp. 310-355, 2007 P.347 15 Id 3 relevance; the applicability of HRL and IHL can be defined within the parameters of a particular armed conflict scenario. 16 Furthermore, the usage of the phrase "arbitrary" For example in arbitrary deprivation of life as explained by the advisory opinion on Nuclear weapons case, must take into account IHL regulations, such as the concept of necessity during armed conflict, in order to supplement IHRL.17 The phrase must also take into account IHRL principles, such the right to life, in the same context. When HRL and IHL are taken into account together, it becomes more difficult for an aggressor to defend their acts when killing civilians during an armed attack.18 IHRL can be also applicable to protect safeguards the rights of detainees and the right to a fair trial, even during armed conflicts. In Hassan Vs. United Kingdom, the ECtHR explored the relationship between IHL and IHRL and decided that UK is expected to respect rules of IHL and IHRL while detaining an individual by invoking article 5 of ECHR (right to liberty and security). 19 The Furundizja case, for instance, in its reasoning, explained that human rights norms and international customary laws are instrumental while entertaining cases in armed conflicts20 and In ICTRs Kronjelac case,21 the court assessed approaches in different instruments, such as UDHR and ICCPR, while examining arbitrariness in deciding deprivation of liberty as in crimes against humanity. A conclusion can be also drawn from the famous Tadić case that crimes punishable under international law such as crime against humanity in violation of IHRL can arise even in cases of armed hostilities and IHRL applies in the case. 22 16 Waseem Ahmad, Qureshi, Untangling the Complicated Relationship between International Humanitarian Law and Human Rights Law in Armed Conflict, 6 Penn. St. J.L. & Int'l Aff. (2018), p. 220 17 Id, p. 225 18 Ibid. 19 Hassan v. the United Kingdom, No. 29750/09, ECtHR (Grand Chamber), 16 September 2014. Para 35-37 20 Prosecutor Vs. Anto Furundzija (ICTY Trial Judgement), para 168-183 21 ICTR, Prosecutor Vs. Krnojelac, Trial Judgment, 1998, paras. 110-114 22 See generally, Prosecutor v. Dusko Tadic aka "Dule" (Opinion and Judgment), IT-94-1-T, International Criminal Tribunal for the former Yugoslavia (ICTY), 7 May 1997) 4 Bibliography I. Journal Articles 1. Cordula Droegethe, Interplay Between International Humanitarian Law and International Human Rights Law in Situations of Armed Conflict, Sr. L. Rev. Vol. 40, No.2, 2007 2. G.I.A.D. Draper, “The relationship between the human rights regime and the laws of armed conflict,” Israel Yearbook on Human Rights, Vol. 1, 1971 3. International Human Rights in Armed Conflicts, Legal Fact Sheet, Democratic Progress Institute 4. Seid Demeke, The Role of Human Rights Law in Improving Law of the Internal Armed Conflict, BDU Journal of Law, 2014, Vol. 4, No. 2. 5. Waseem Ahmad, Qureshi, Untangling the Complicated Relationship between International Humanitarian Law and Human Rights Law in Armed Conflict, 6 Penn. St.J.L. & Int'l Aff. (2018), II. International Tribunal Cases and Opinions 1. Al-Skeini and Others v. United Kingdom, Application no. 55721/07, Council of Europe: European Court of Human Rights, 7 July 2011 2. Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), ICJ, Judgement, 19 December 2005, 3. Hassan v. the United Kingdom, No. 29750/09, ECtHR (Grand Chamber), 16 September 2014. 4. ICJ, Legality of the Threat or Use of nuclear weapons, Advisory opinion, 8 July 1996, ICJ Reports 1996, 5. ICTR, Prosecutor Vs. Krnojelac, Trial Judgment, 1998, 6. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004 7. Prosecutor v. Dusko Tadic aka "Dule" (Opinion and Judgment), IT-94-1-T, International Criminal Tribunal for the former Yugoslavia (ICTY), 7 May 1997) 8. Prosecutor Vs. Anto Furundzija (ICTY Trial Judgement), 5 9. Prosecutor Vs. Dragoljub Kunarac Radomir Kovac and Zoran Vukovic, It-96-23-T, Judgment, 22 Feb. 2001. (Kunarac case) 10. III. International Human Rights and Humanitarian Laws 1. Geneva Convention relative to the Protection of Civilian Persons in Time of War (Geneva Convention IV), adopted on 12 August 1949, entered into force on 21 October 1950 2. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (First Convention). 3. Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Second Convention). 4. International Covenant on Civil and Political Rights (ICCPR), adopted by the United Nations General Assembly on 16 December 1966, entered into force on 23 March 1976. 5. European Convention on Human Rights (ECHR), formally the Convention for the Protection of Human Rights and Fundamental Freedoms, adopted by the Council of Europe on 4 November 1950, entered into force on 3 September 1953. 6