2. Two areas of international law:
• International
humanitarian law:
• Agreements
between states on
how to conduct
war, and on
protection of
individuals
(civilians and
combattants)
• International human
rights law:
• Agreements
between states
regulating the
relationship
between each state
and the indivuduals
over which it has
jurisdiction
3. The Content of IHL is
PROTECTION of
1) Combatants:
- Soldiers/officers
- Others (participants in hostilities)
2) Non-combatants:
- Soldiers hors de combat (Sick, wounded,
surrendered, POWs)
- Civilians
4. The Content of HRL is
PROTECTION
of all persons within the
jurisdiction of a State
(regardless of citizenship)
against abuse of power of
State authorities, or failure
by State authorities to ensure
human rights
5. International Human Rights Law
Point of departure:
Restrictions on arbitrary abuse of power by the state
General treaties:
•International Covenant on Civil and Political Rights (1966)
•International Covenant on Economic, Social and Cultural
Rights (1966)
•European Convention on Human Rights and Fundamental
Freedoms (1950)
Special Treaties:
•Convention on Torture
•Convention on Racial Discrimination
•Convention on Discrimination of Women
•Etc..
6. The duty bearers and the right holders
Duty-bearers Rights-holders
International
humanitarian law
(IHL)
-STATES
-INDIVIDUALS
- STATES
- INDIVIDUALS
International
humans rights law
(IHRL)
- STATES
- INDIVIDUALS
(persons)
-STATES
7. Remedies and monitoring mechanisms
under humanitarian law (IHL) and human
rights law (HR)
Duty-bearers Rights-holders Mechanisms
International
humanitarian
law (IHL)
STATES
INDIVIDUALS
STATES
INDIVIDUALS
ICJ (& other treaty
mechanisms)
National courts
Nuremberg/Tokyo
ICTY/ICTR
ICC
International
humans rights
law (IHRL)
STATES INDIVIDUALS
(STATES)
International HR courts
& other monitoring
bodies
ICJ & HR Courts etc
8. Examples of civil and political rights:
•Freedom of speech / the right of expression
•The right of assembly/organisation (freedom of
association)
•Freedom of religion/belief
•Prohibition against torture and cruel and degrading
punishment
•The right to liberty and physical integrity (restrictions on
the use of detention)
•The rights of fair trial (Independent courts, presumption
of innocence, etc..)
•Prohibition against retroactive laws or judgements
without legal basis
9. Examples of economic, social and cultural rights:
•The right to education
•The right to health
•Right to form and join trade unions
•Right to reasonable working conditions
•Right to housing
•Freedom from discrimination
•Race/ethnicity/national or social origin etc
•Gender
•Political opinion
•Disabilities, age
10. When do human rights apply?
• Point of departure: Always
• No qualification of situations (see f.ex.
Articles 1 of the ECHR and Article 2 of the
ICCPR)
• What can states do when the security (or
interests) of the state is threatened?
• Limitations possible for some of the rights
• Derogation in emergencies
11. Limitations: ECHR art. 8,9,10,11
• Art.8: Right to respect for privacy and family
life
• Art.9: Freedom of thought and religion
• Art.10: Freedom of expression
• Art.11: Freedom of assembly
12. Limitations must be:
• Prescribed by law
• Necessary in a democratic society
• In the interests of national security, territorial
integrity or public safety
• For the protection of public order, health or
morals
• For the protection of the rights and freedoms
of others
13. No limitations with regard to:
• Right to life (except those which are listed in article 2
and 15)
• Prohibition of torture
• Prohibition of slavery and forced labour
• Right to liberty and security
• Right to a fair trial
• No punishment without law
14. Article 15 ECHR :– Derogation in time of
emergency
1. In time of war or other public emergency
threatening the life of the nation any High
Contracting Party may take measures derogating
from its obligations under this Convention to the
extent strictly required by the exigencies of the
situation, provided that such measures are not
inconsistent with its other obligations under
international law.
2. No derogation from Article 2, except in respect of
deaths resulting from lawful acts of war, or from
Articles 3, 4 (paragraph 1) and 7 shall be made
under this provision.
15. 3. Any High Contracting Party availing itself of this right
of derogation shall keep the Secretary General of the
Council of Europe fully informed of the measures which
it has taken and the reasons therefor. It shall also
inform the Secretary General of the Council of Europe
when such measures have ceased to operate and the
provisions of the Convention are again being fully
executed.
16. Requirements for derogation
• Art.15 (1). In time of war or other public
emergency threatening the life of the nation
any High Contracting Party may take measures
derogating from its obligations under this
Convention to the extent strictly required by
the exigencies of the situation, provided that
such measures are not inconsistent with its
other obligations under international law.
17. Non-derogable rights
Art.15 (2): No derogation from Article 2,
except in respect of deaths resulting from
lawful acts of war, or from Articles 3, 4
(paragraph 1) and 7 shall be made under this
provision.
18. Article 2 (Right to life):
• Everyone’s right to life shall be
protected by law. No one shall be
deprived of his life intentionally save in
the execution of a sentence of a court
following his conviction of a crime for
which this penalty is provided by law.
19. • Article 2 (continued):
• Deprivation of life shall not be regarded as
inflicted in contravention of this article when it
results from the use of force which is no more
than absolutely necessary:
• (a) in defence of any person from unlawful
violence;
• (b) in order to effect a lawful arrest or to
prevent the escape of a person lawfully
detained;
• (c) in action lawfully taken for the purpose of
quelling of a riot or insurrection
20. “lawful acts of war”
• Derogation does not prohibit deaths resulting
from lawful acts of war:
Observance of:
• Combatant status required for killing
• Principle of distinction
• Principle of proportionality
• No war crimes
• No grave breaches
21. • European Court of Human Rights on Art.2:
• Isayeva v. Russia (2005):
• Violation of article 2 because: “The Court
considers that using this kind of weapon in a
populated area, outside wartime and without
prior evacuation of civilians, is impossible to
reconcile with the degree of caution expected
from a law-enforcement body in a democratic
society. No martial law and no state of
emergency has been declared in Chechnya,
and no derogation has been made under
Article 15..”
22. Non-derogable rights (cont.)
Art.15 (2) No derogation…or from Articles 3, 4
(paragraph 1) and 7 shall be made under this
provision.
- Art.3: Prohibition against torture and inhuman and
degrading treatment and punishment
- Art.4 (1): Prohibition against slavery
- Art. 7: Prohibition against retroactive or non-
existent legislation as basis for punishment
23. Article 4 ICCPR
1 . In time of public emergency which threatens the life of the nation
and the existence of which is officially proclaimed, the States Parties to
the present Covenant may take measures derogating from their
obligations under the present Covenant to the extent strictly required
by the exigencies of the situation, provided that such measures
are not inconsistent with their other obligations under international law
and do not involve discrimination solely on the ground of
race, colour, sex, language, religion or social origin.
2. No derogation from articles 6, 7, 8 (paragraphs I and 2),
11, 15, 16 and 18 may be made under this provision.
3. Any State Party to the present Covenant availing itself of the right of
derogation shall immediately inform the other States Parties to the
present Covenant, through the intermediary of the Secretary-General
of the United Nations, of the provisions from which it has derogated
and of the reasons by which it was actuated. A further communication
shall be made, through the same intermediary, on the date on which
it terminates such derogation.
24. Derogation measures must not
discriminate
• Article 4, ICCPR .…..provided that such
measures …. do not involve discrimination
solely on the ground of race, colour, sex,
language, religion or social origin.
• Discrimination grounds in article 2 and 26 of
the ICCPR: race, colour, sex, language,
religion, political or other opinion, national
or social origin, property, birth or other
status
25. • Implicitly permitted to take derogation
measures which discriminates on the basis of
• political or other opinion, national
origin, property, birth or other status,
• But: only provided that such measures
are “strictly required by the exigencies
of the situation”
26. More non-derogable rights under
Art.4 of ICCPR
• 2. No derogation from articles 6, 7, 8 (paragraphs I and 2),
11, 15, 16 and 18 may be made under this provision.
• Art.6: Right to life
• Art.7: Torture and inhuman and degrading treatment
• Art.8: Slavery
• Art.11: Debt prison
• Art.15: Non-existent of retroactive legislation
• Art.16: Right to be recognised as a person before the law
• Art.18: The freedom of religion
27. Examples of situations which led
to derogation:
• The military coup in Greece in 1967
• The situation in Northern Ireland
• The situation in parts of Turkey
• The situation in Israel/occupied territories
• The attack on the US 11 Sept. 2001
28. International “case law” on
derogation (examples)
• European Court of Human Rights:
• Lawless v. Ireland (1960)
• Ireland v. United Kingdom (1978)
• Brannigan and McBride v.UK (1993)
• Aksoy v.Turkey (1996)
• The Human Rights Committee:
• Landinelli v.Uruguay (1978)
• Salgar de Montejo v. Colombia (1979)
29. Where do human rights apply?
• Each state must ensure its human rights obligations
• Not all states have agreed to take on all human rights
obligations
• Human rights for individuals correspond with human
rights obligations of the relevant state
• But: core human rights are customary law
30. Geographical application
• IHL: applicable wherever a State Party (or
other parties) to the conflict may be operating
– when the situation qualifies as armed
conflict
• Human Rights: applicable to persons under the
State’s territory and/or jurisdiction - in all
situations (as a point of departure)
31. Scope of application of human
rights treaties:
• Art.1, ECHR: The High Contracting parties
shall secure to everyone within their
jurisdiction the rights and freedoms
defined in Section 1 of this Convention.
• Art. 2, ICCPR: Each State Party to the
present Covenant undertakes to respect
and to ensure to all individuals within its
territory and subject to its jurisdiction the
rights recognized in the present Covenant…
32. Human Rights Committee:
General Comment No.31 (80) 2004
• 10. States Parties are required by article 2,
paragraph 1, to respect and to ensure the
Covenant rights to all persons who may be
within their territory and to all persons
subject to their jurisdiction. This means
that a State party must respect and ensure
the rights laid down in the Covenant to
anyone within the power or effective
control of that State Party, even if not
situated within the territory of the State
Party.
33. The European Court of Human
Rights (on “jurisdiction”):
• Art.1, ECHR: The High Contracting parties
shall secure to everyone within their
jurisdiction the rights and freedoms defined
in Section 1 of this Convention.
• No dispute: jurisdiction can imply
responsibility both inside and outside the
territory of a State party
34. Jurisdiction:
• The power of the State:
- internally (at the national level)
- externally (in relations with other states)
- Jurisdiction reflects state sovereignty and
equality of states - the basic principles of
international law
35. Jurisdiction:
Common understanding of jurisdiction:
• Legislative power (prescriptive jurisdiction)
• Judicial power (court jurisdiction)
• Executive power (enforcement jurisdiction)
ECHR: Autonomous interpretation: jurisdiction is
closely linked to a state’s ability to secure (or
violate) human rights (including, to a certain extent,
abroad)
36. Extraterritorial human rights
responsibility (jurisdiction) under
the ECHR
• Loizidou v. Turkey (1996)
• Bankovic (2001)
• Ôchalan (2005)
• Ilascu v. Moldova and Russia (2004)
• Issa et al v. Turkey (2004)
• Saramati (2007)
37. Extraterritorial human rights
responsibility in Peace
Operations: (Saramati case)
• Complaint from person detained in Kosovo
against i.a. Norway and France - alleged
violation of article 5
• Could derogate in ones’ own territory, but not
abroad?
38. Human rights and peace
operations
• UK: Al-Skeini (House of Lords – back to
High Court)
• UK: Al-Jeddah (House of Lords - 29
October):
• Not a protected person under GC IV (art.4)
• SCR 1546 (2004) v. art. 55 and 56 of the UN
Charter
• Art. 103: SC can override Human Rights except
when they constitute jus cogens
• Art.103: SC can override IHL (art. 78, GC IV)
39. Is there a gap between IHL and
HRL?
• Is there a situation where only non-derogable
rights are applicable - and Common Article 3
is not?
40. De facto situations Applicable IHL Applicable HR law Examples
1. International armed
conflict
(& colonial wars etc.)
The four Geneva
conventions of
1949 & the first
additional protocol
of 1977
Non-derogable
(applicable)
human rights
Tadic-case (ICTY)
2. Non-international
armed conflict
between the state and
organized group with
territorial control
The second
additional protocol
of 1977
Non-derogable
(applicable)
human rights
Spain 1936-37
Colombia 2004?
3. Non-international
armed conflict
between the state and
groups or between
groups
Common Article 3
to the four Geneva
conventions
Non-derogable
(applicable)
human rights
Lebanon 1980s?
Somalia?
Iraq 2005?
4.Disturbances
Riots/Unrest
Disasters
Others causes for
state of emergency
Non-derogable
(applicable)
human rights
Iraq 2006?
UK/US post 9/11
France 2005?
5. Peace All International
(applicable)
human rights
41. The relationship between human rights
and humanitarian law
in situations where both regimes apply:
• Point of departure: HR law is always applicable
• But: the principle of lex specialis applies
• Advisory Opinion – Nuclear weapons (ICJ)
• Advisory opinion - Wall in occupied Palestine
territories (ICJ)
• General Comment of Article 2 (Jurisdiction) (HR
Committee)
42. Minimum protection:
• All human rights which are
• Non-derogable and not derogated from
And:
• Article 75 AP I (if IAC)
• Common Art.3 (if NIAC)
