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Published online by Cambridge University Press: 04 August 2015
This article briefly overviews some of the current and future challenges to NATO legal interoperability arising from the relationship between international humanitarian law (IHL) and international human rights law generally and between IHL and the European Convention on Human Rights in particular.
1 The International Committee of the Red Cross (ICRC) is taking the initiative on promoting discussion on this topic and has created a useful resource that introduces some of the complexities. See ICRC, Expert Meeting: The Use of Force in Armed Conflicts: Interplay between the Conduct of Hostilities and Enforcement Law Paradigms, October 2013, available at: www.icrc.org/eng/assets/files/publications/icrc-002-4171.pdf (all internet references were accessed in October 2014).
2 For a few analytical pieces on the NATO perspective, see Olson, Peter M., “Perspectives on IHL and Multinational Forces: A NATO Perspective on Applicability and Application of IHL to Multinational Forces”, International Review of the Red Cross, Vol. 95, No. 891–892, pp. 653–657CrossRefGoogle Scholar; Zwanenburg, Marten, “International Humanitarian Law Interoperability in Multinational Operations”, International Review of the Red Cross, Vol. 94, No. 891–892, pp. 681–705Google Scholar; see also Peter M. Olson, “Convergence and Conflicts of Human Rights and International Humanitarian Law in Military Operations: A NATO Perspective”, in Erika De Wet and Jann Kleffner (eds), Convergence and Conflicts of Human Rights and International Humanitarian Law in Military Operations, Pretoria University Law Press, Pretoria, 2014, p. 227.
3 Editor's Note: The expression “IHRL/ECHR” is used by the author to point the reader to the specific tension that ECHR-related case law may create for the interrelationship between IHL and IHRL.
4 P. Olson, “Convergence and Conflicts”, above note 2, p. 234 (emphasis added).
5 M. Zwanenburg, above note 2.
6 For a helpful discussion on the differences between the two regimes, see ICRC, above note 1, pp. 4–9.
7 ECtHR, Georgia v. Russia II, Case No. 38263/08, Decision (Former Fifth Section), 13 December 2011, and ECtHR, Hassan v. United Kingdom, Case No. 29750/09, heard 11 December 2013, may finally address some of these issues and, for the first time, include IHL into their analysis. These decisions will be a key moment on the future interrelationship (or lack thereof) between IHL and the ECHR, and possibly the approach that European NATO Member States take in the future when creating use of force frameworks within NATO.
8 For an introduction to the complexity, debates and trends on this topic, see the following sampling: Meron, Theodor, “The Humanization of Humanitarian Law”, American Journal of International Law, Vol. 94, 2000, p. 239CrossRefGoogle Scholar; ICRC, above note 1; Droege, Cordula, “The Interplay between International Humanitarian Law and International Human Rights Law in Situations of Armed Conflict”, Israel Law Review, Vol. 40, No. 2, 2007, p. 310CrossRefGoogle Scholar; Lubell, Noam, “Parallel Application of International Humanitarian Law and International Human Rights Law: An Examination of the Debate”, Israel Law Review, Vol. 40, No. 2, 2007, p. 648CrossRefGoogle Scholar; Prud'homme, Nancie, “Lex Specialis: Oversimplifying a More Complex and Multifaceted Relationship”, Israel Law Review, Vol. 40, 2007, p. 356CrossRefGoogle Scholar; Orna Ben-Naftali, “Introduction: International Humanitarian Law and International Human Rights Law – Pas de Deux”, in O. Ben-Naftali (ed.), International Humanitarian Law and International Human Rights Law, Oxford University Press, Oxford, 2011, p. 3; Milanovic, Marko, “A Norm Conflict Perspective on the Relationship between International Humanitarian Law and Human Rights Law”, Journal of Conflict and Security Law, Vol. 14, 2009, p. 459CrossRefGoogle Scholar; Marko Milanovic, “Norm Conflict in International Law: Whither Human Rights?”, Duke Journal of Comparative & International Law, Vol. 20, 2009/10, p. 69Google Scholar; Hampson, Françoise, “The Relationship between International Humanitarian Law and Human Rights Law from the Perspective of a Human Rights Body”, International Review of the Red Cross, Vol. 90, No. 871, 2008, p. 547CrossRefGoogle Scholar; Hathaway, Oona et al. , “Which Law Governs During Armed Conflict? The Relationship between International Humanitarian Law and Human Rights Law”, Minnesota Law Review, Vol. 96, 2011–12, p. 1883Google Scholar; Bethlehem, Daniel, “The Relationship between International Humanitarian Law and International Human Rights Law and the Application of International Human Rights Law in Armed Conflict”, Cambridge Journal of International and Comparative Law, Vol. 2, No. 2, 2013, p. 180CrossRefGoogle Scholar; Bellinger, John III and Padmanabhan, Vijay, “Detention Operations in Contemporary Conflicts: Four Challenges for the Geneva Conventions and Other Existing Law”, American Journal of International Law, Vol. 105, 2011, p. 201CrossRefGoogle Scholar; Watkin, Kenneth, “Controlling the Use of Force: A Role for Human Rights Norms in Contemporary Armed Conflict”, American Journal of International Law, Vol. 98, No. 1, 2004, p. 1CrossRefGoogle Scholar; Watkin, Kenneth, “Use of Force during Occupation: Law Enforcement and Conduct of Hostilities”, International Review of the Red Cross, Vol. 94, No. 885, 2012, p. 267CrossRefGoogle Scholar; Corn, Geoffrey, “Mixing Apples and Hand Grenades: The Logical Limit of Applying Human Rights Norms to Armed Conflict”, International Humanitarian Legal Studies, Vol. 1, 2010, p. 52CrossRefGoogle Scholar; Hansen, Michelle, “Preventing the Emasculation of Warfare: Halting the Expansion of Human Rights Law into Armed Conflict”, Military Law Review, Vol. 194, 2007, p. 1Google Scholar; Dennis, Michael, “Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation”, American Journal of International Law, Vol. 99, 2005, p. 119CrossRefGoogle Scholar; Bill, Brian, “Human Rights: Time for Greater Judge Advocate Understanding”, Army Lawyer, Vol. 54, 2010, p. 54Google Scholar.
9 F. Hampson, above note 8, p. 566, noting this often overlooked point: “Clearly, the importance of the relationship between IHL and human rights law is very significantly reduced if the latter is not applicable extraterritorially.”
10 ICRC, above note 1, p. 5.
11 For a review of jurisprudence on extraterritorial application, including the positions of the United States and Canada, see also M. Dennis, above note 8; Dennis, Michael, “Non-Application of Civil and Political Rights Treaties Extraterritorially During Times of International Armed Conflict”, Israel Law Review, Vol. 40, p. 453CrossRefGoogle Scholar; Blaise Cathcart, “The Role of the Legal Advisor in the Canadian Armed Forces Addressing International Humanitarian Law and International Human Rights Law in Military Operations”, in E. De Wet and J. Kleffner (eds), above note 2; Federal Court of Canada (Trial Division), Amnesty International Canada and British Columbia Civil Liberties Association v. Chief of Defence Staff for the Canadian Forces, Minister of National Defence and Attorney General of Canada, Decisions of 25 January and 12 March 2008. These cases were upheld on appeal to the Federal Court of Appeal and leave to appeal was denied by the Supreme Court of Canada.
12 ECtHR, Bankovic and Others v. Belgium and Others, Case No. 52207/99, Decision (Grand Chamber), 12 December 2001.
13 ECtHR, Issa v. Turkey, Case No. 31821/96, Judgment (Second Section Chamber), 16 November 2004.
14 UN Human Rights Council (HRC), General Comment 31, “The Nature of the General Legal Obligation Imposed on States Parties to the Covenant”, UN Doc. CCPR/C/21/Rev.1/Add.13, 26 May 2004, para. 10, articulates the jurisdictional scope of the ICCPR by noting 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 …. This principle applies to those within the power or effective control of the forces of a State Party acting outside its territory, regardless of the circumstances.”
15 Abresch, William, “A Human Rights Law of Internal Armed Conflicts: The European Court of Human Rights in Chechnya”, European Journal of International Law, Vol. 16, No. 4, 2005, p. 746CrossRefGoogle Scholar.
16 For an exploration of these types of issues, see Sassòli, Marco and Olson, Laura, “The Relationship between International Humanitarian and Human Rights Law Where It Matters: Admissible Killing and Internment of Fighters in Non-International Armed Conflicts”, International Review of the Red Cross, Vol. 90, No. 871, 2008, p. 599CrossRefGoogle Scholar; W. Abresch, above note 15; Doswald-Beck, Louise, “The Right to Life in Armed Conflicts: Does International Humanitarian Law Provide All the Answers?”, International Review of the Red Cross, Vol. 88, No. 864, 2006, p. 881CrossRefGoogle Scholar; ICRC, above note 1, p. 16. For an example of a Turkish and a Russian case where the ECtHR chose not to explore IHL on its own initiative, see ECtHR, Ergi v. Turkey, 32 EHRR 18, 2001, and Isayeva and Others v. Russia (No.2), 41 EHRR 38, 2005.
17 ICRC, above note 1, p. 16.
18 ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, Geneva, October 2011, p. 20.
19 ICRC, above note 1, p. 16.
20 ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, para. 25: “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 … is to be considered an arbitrary deprivation of life … can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself.”
21 F. Hampson, above note 8, p. 559: “Whilst the ICJ may not have used the most appropriate formulation, it is clear in general terms what the Court meant. It appears to have meant, first, that where both IHL and human rights law are applicable, priority should be given to IHL. Second, given the ICJ's view that human rights law remains applicable at all times, by necessary implication the ICJ also meant that the human rights body should make a finding based on IHL and expressed in the language of human rights law. This sounds straightforward, but does not in fact explain how the lex specialis doctrine should work in practice. There are various possibilities.” Hampson goes on to list several approaches. A similar theme – lack of methodology – has been identified by Sir Daniel Bethlehem QC, the former UK Foreign Office legal adviser, in his piece “The Relationship between International Humanitarian Law and International Human Rights Law and the Application of International Human Rights Law in Armed Conflict”, above note 8, p. 193. He concludes by noting that “the anxiety on this area is largely driven by warranted concern over the methodological shortcomings of courts and other bodies seised of these issues, particularly on the human rights side of the equation.” J. Bellinger III (former United States State Department Legal Advisor) and V. Padmanabhan, above note 8, also comment: “When the rules offered by both bodies of law are in conflict, or when one body of law has deliberately left discretion to states, a methodology is needed to prioritize between the rules” (p. 210). See also Pomper, Stephen, “Human Rights Obligations, Armed Conflict and Afghanistan: Looking Back Before Looking Ahead”, International Law Studies Series, US Naval War College, Vol. 85, 2009, p. 529Google Scholar, who reviews American and Canadian litigation that considered European jurisprudence, and notes that “States purporting to apply the law of armed conflict and human rights law conjointly to extraterritorial armed conflicts did not appear to have a clear understanding about how to balance certain fundamental tensions between the two bodies of law”. For an overview of the debate surrounding lex specialis, see C. Droege, above note 8, p. 338.
22 D. Bethlehem, above note 8; K. Watkin, “Use of Force during Occupation”, above note 8. Consideration should also be given to the precision with which the application of lex specialis is approached by M. Milanovic, “A Norm Conflict Perspective”, above note 8.
23 In addition to Bethlehem and Watkin, Ibid., see, e.g., G. Corn, above note 8; F. Hampson, above note 8; O. Hathaway et al., above note 8.
24 ICRC, above note 18, p. 14. See also D. Bethlehem, above note 8, p. 186, where he discusses the continuing utility of the Nuclear Weapons Advisory Opinion, stating that “the conclusions flowing from the Nuclear Weapons Advisory Opinion are both more considered and more useful, and better attuned to the complexity of these issues, than those flowing from the more recent Wall Advisory Opinion”; Public Commission to Examine the Maritime Incident of 31 May 2010, Second Report – The Turkel Commission: Israel's Mechanisms for Examining and Investigating Complaints and Claims of Violations of the Laws of Armed Conflict According to International Law, February 2013, p. 69.
25 See, as an example, Jean Paul Costa and Michael O'Boyle, “The European Court of Human Rights and International Humanitarian Law”, in Dean Spielmann, Marialena Tsirli and Panayotis Voyatzis (eds), The European Convention on Human Rights: A Living Instrument – Essays in Honour of Christos L. Rozakis, Bruylant, Brussels, 2011, pp. 107, 113–114.
26 ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, para. 106: “As regards the relationship between international humanitarian law and human rights law, there are 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 branches of international law.”
27 ICJ, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, ICJ Reports 2005, paras 215–221.
28 See above note 24.
29 This would be significant for countries like Canada, which participate, for example, in a NIAC in Afghanistan, and which concede extraterritorial application of human rights for situations of occupation but not for “control over the person”. While the ICCPR would apply to the State of Afghanistan in Afghanistan, it would not do so for Canada.
30 For an overview, see Schabass, William, “Lex Specialis? Belt and Suspenders? The Parallel Operation of Human Rights and the Law of Armed Conflict, and The Conundrum of Jus Ad Bellum”, Israel Law Review, Vol. 40, No. 2, 2007, p. 592CrossRefGoogle Scholar.
31 N. Lubell, above note 8, pp. 654–656.
32 M. Milanovic, “A Norm Conflict Perspective”, above note 8, p. 462.
33 See N. Lubell, above note 8; N. Prud'homme, above note 8.
34 N. Prud'homme, above note 8.
35 Lindroos, Anja, “Addressing Norm Conflicts in a Fragmented Legal System: The Doctrine of Lex Specialis”, Nordic Journal of International Law, Vol. 74, No. 1, 2005, p. 27CrossRefGoogle Scholar.
36 Martti Koskenniemi, “Study on the Function and Scope of the Lex Specialis Rule and Question of ‘Self-Contained Regimes’”, International Law Commission, UN Doc. ILC (LVI)/SG/FIL/CRD.1, 2004.
37 N. Prud'homme, above note 8, pp. 382, 384.
38 In the seminal Volume 40 of the Israel Law Review, N. Lubell, above note 8, identifies a multitude of undefined terms that are used in the volume, such as “complementarity”, “cross fertilization”, “harmonization”, “parallel applicability”, “convergence” and “integration”.
39 At the time of writing, argument in the ECtHR case of Hassan v. United Kingdom, above note 7, has been concluded and a decision is pending. Hassan was captured by UK forces in Iraq, during the ongoing armed conflict, prior to occupation, and screened as a possible prisoner of war or a person falling within the scope of Geneva Convention IV who is subject to internment for imperative reasons of security. The UK government is arguing for the application of IHL as lex specialis, as the relevant body of law over the ECHR. A third-party brief filed by Noam Lubell and Françoise Hampson, on behalf of the Human Rights Centre of the University of Essex, challenged the usefulness of the lex specialis doctrine but did propose a model that asserts that there would only be an IHRL breach in areas of grounds for detention, the type of review mechanisms and the trigger for release if the relevant Geneva Convention III and IV provisions were breached.
40 M. Milanovic, “A Norm Conflict Perspective”, above note 8, p. 460.
41 Jean Marie Henckaerts and L. Doswald-Beck, Customary International Humanitarian Law, Vol. 1: Rules, Cambridge University Press, Cambridge, 2005 (ICRC Customary Law Study).
42 Israeli High Court of Justice, The Public Committee against Torture et al. v. The Government of Israel et al., HCJ (769/02), 13 December 2006.
43 ICRC, Interpretative Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, Geneva, 2009.
44 See Ohlin, Jens David, “Targeting and the Concept of Intent”, Michigan Journal of International Law, Vol. 35, 2013, p. 79Google Scholar, where he considers a series of ICTY decisions (Galic, Blaškić, Kordiae, Strugar and Perišić), arguing that the Court has “reinterpreted” and expanded the concept of intent to broaden it to include foreseeable civilian loss in targeting, thus conflating “distinction” and “proportionality”. Ohlin distinguishes between the civil law jurisdiction (or “European approach”) that is “nonplussed” by this development and the Anglo-American approach when assessing ICTY jurisprudence.
45 As an example, see Goodman, Ryan, “The Power to Kill or Capture Enemy Combatants”, European Journal of International Law, Vol. 24, 2013, p. 819CrossRefGoogle Scholar, where he argues that “in certain well-specified and narrow circumstances, the use of force should instead be governed by a least-restrictive-means analysis” and then introduces various scenarios, consistent with the capture versus kill debate, that are possibly subject to “restraints on the use of force”. See also Schmitt, Michael, “Wound, Capture, or Kill: A Reply to Ryan Goodman's ‘The Power to Kill or Capture Enemy Combatants’”, European Journal of International Law, Vol. 24, 2013, p. 855CrossRefGoogle Scholar, and Goodman's rejoinder in the same volume. An analysis of the capture versus kill debate and the struggle between IHL and IHRL approaches is presented in Ohlin, Jens, “The Duty to Capture”, Minnesota Law Review, Vol. 97, 2013, p. 1268Google Scholar.
46 M. Zwanenburg, above note 2.
47 For an example of this justification see, J. P. Costa and M. O'Boyle, above note 25.
48 M. Milanovic, “A Norm Conflict Perspective”, above note 8, p. 460.
49 UNGA Res. 60/251, 3 April 2006.
50 UNHRC Res. S-15/1, 25 February 2011.
51 UNSC Res. 1970, 26 February 2011.
52 See Human Rights in Palestine and Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict, UN Doc. A HRC/12/48, 15 September 2009, which triggered criticism for the way it misapplied IHL, a retraction by Goldstone, a subsequent UN report and the creation of the Turkel Commission by the government of Israel. See Blank, Laurie, “The Application of IHL in the Goldstone Report: A Critical Commentary”, Yearbook of International Humanitarian Law, Vol. 12, 2009, p. 347CrossRefGoogle Scholar.
53 Letter from NATO Legal Adviser to ICIL, 20 December 2011. NATO subsequently provided detailed information on a number of strikes, and those letters are contained in Annex II of the ICIL's Final Report, Report of the International Commission of Inquiry on Libya, UN Doc. A/HRC/19/68, 2 March 2012. The letters sent by the ICIL to NATO are not included in the ICIL's report.
54 Letter from ICIL to NATO Legal Advisor, 24 December, 2011.
55 This was the first, and perhaps last, IAC conducted with only precision-guided munitions (PGMs). Most IHRL and non-governmental organization bodies, when reviewing NATO's actions, did not adjust their advocacy tactics in light of this historic development, and they probably missed an opportunity to shift the nature of the dialogue with NATO. Rather, they stuck to their traditional practice and focused on a few strikes that caused incidental civilian loss, while giving this fact – 7,800 strikes, all with PGMs – only a passing reference in a few sentences.
56 C. Droege, above note 8, p. 323.
57 See Alston, Philip et al. , “The Competence of the UN Human Rights Council and its Special Procedures in Relation to Armed Conflicts: Extrajudicial Executions in the ‘War on Terror’”, European Journal of International Law, Vol. 19, No. 1, 2008, p. 183CrossRefGoogle Scholar, for a review of some of the US practice and response from the perspective of those aligned with the HRC.
58 F. Hampson, above note 8, pp. 70–71. The ICRC, above note 1, Appendix 3, has rightly cautioned: “It cannot be assumed that just because a human rights body uses words more commonly found in an IHL context (e.g. civilian) that it is taking account of IHL …. The case-law of the European Court of Human Rights … is only relevant as a very detailed analysis of the requirements of human rights law. Not once has it addressed on the merits the relationship between IHL and human rights law, whether IHL was relevant or how it should take account of IHL.”
59 ECtHR, Al-Skeini and Others v. United Kingdom, Case No. 55721/07, Judgment (Grand Chamber), 2011.
60 See J. P. Costa and M. O'Boyle, above note 25, p. 129, where they comment: “The consequence is that the same military operation may be in violation of the provisions of the Convention but not of the relevant norms of IHL.”
61 See ibid. and Olga Chernishova in ICRC, above note 1, Appendix 6, p. 89.
62 Third-Party Brief, Human Rights Centre of the University of Essex (see above note 39), filed in ECtHR, Hassan, above note 8.
63 See F. Hampson, above note 8; in ICRC, above note 1, Appendix 3, p. 77; Andrea Gioia, “The Role of the European Court of Human Rights in Monitoring Compliance with Humanitarian Law in Armed Conflict”, in Orna Ben-Naftali (ed.), International Humanitarian Law and International Human Rights Law, Oxford University Press, Oxford, 2011, pp. 215–218; J. P. Costa and M. O'Boyle, above note 25, p. 107; W. Abresch, above note 15.
64 ECtHR, Georgia and Hassan, above, note 7.
65 Ibid., para. 149.
66 For a review of the development of ECtHR jurisdictional cases and the interplay between SAA and ECA, see Miltner, Barbara, “Revisiting Extraterritoriality after Al Skeini: The European Court of Human Rights and Its Lessons”, Michigan Journal of International Law, Vol. 33, 2011–2012, p. 693Google Scholar; O. Hathaway et al., above note 8, p. 389; Milanovic, Marko, “Al-Skeini and Al-Jedda in Strasbourg”, European Journal of International Law, Vol. 23, No. 1, 2012, p. 121CrossRefGoogle Scholar; Cowan, Anna, “A New Watershed? Re-Evaluating Bankovic in Light of Al-Skeini”, Cambridge Journal of International and Comparative Law, Vol. 1, No. 1, 2012, p. 213CrossRefGoogle Scholar. Both Cowan and Milanovic appear to view the SAA test in Al-Skeini as being coupled to the existence of exercise of public powers, thus preserving Bankovic. For a perspective which views the possibility of equating killing with SAA as a standalone jurisdictional trigger, without the requirement of being coupled with the exercise of some public powers, and consequently going beyond Bankovic to include killing by aircraft and drones, see Szydlo, Marek, “Extra-Territorial Application of the European Convention on Human Rights after Al-Skeini and Al-Jedda”, International Criminal Law Review, Vol. 12, No. 2, 2012, p. 271CrossRefGoogle Scholar; and see, importantly (given their activism within UK domestic courts and the ECtHR), Public Interest Lawyers, “Public Interest Lawyers: UK's Use of Drones in Afghanistan ‘Highly Likely’ to Breach International Law”, which relies upon Al-Skeini in their 52-page legal opinion, available at; www.publicinterestlawyers.co.uk/news_details.php?id=315.
67 See B. Miltner, above note 66, pp. 727–739, tracing the historical development of this issue.
68 A. Cowan, above note 66, p. 218; B. Miltner, above note 66, p. 699, after wondering whether the divide and tailor of rights applies to the newly formulated SAA test only or to ECA as well, notes that Al-Skeini “arguably leads it further down a path of incoherence”.
69 See ECtHR, Al-Skeini, above note 59, para. 137: “It is clear that, whenever the State through its agents exercises control and authority over an individual and thus jurisdiction, the State is under an obligation under Article 1 to secure to that individual the rights and freedoms under section 1 of the Convention that are relevant to the situation of that individual. In this sense, therefore, the Convention rights can be divided and tailored” (emphasis added).
70 ECtHR, Al-Jedda and Others v. United Kingdom, Case No. 27021/08, Judgment (Grand Chamber), 2011.
71 ECHR, Art. 2, reads:
1. 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.
2. 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 a riot or insurrection.
72 T. Meron, above note 8, p. 247, cautions that one of the dangers of having IHRL institutional encroachment is that the IHRL body may lack expertise in IHL. J. P. Costa and M. O'Boyle, above note 25, p. 127, when discussing the ECtHR confronting IHL, note: “The Court is understandably brought outside its comfort zone, the more so when it has to decide inter-temporal questions of IHL.”
73 Ibid., p. 129.
74 O. Chernishova in ICRC, above note 1, Appendix 6, p. 89.
75 See J. P. Costa and M. O'Boyle, above note 25, as they emphasize that any consideration of IHL would be within the framework of the ECHR: “At the same time, when confronted with non-international or international armed conflict, the Court should not bury its head in the sand. If it is to avoid findings that contradict IHL – as the Commission did successfully in Cyprus v. Turkey – it must at least be aware of the relevant provisions of IHL. The suggestion is not that it should seek to interpret and apply these principles in cases relating to armed conflict as the lex specialis but simply that it should be aware of them when it applies the Convention law in order to ensure the greatest harmony possible, without lowering its own often higher threshold of protection, for it is undoubtedly in times of crises that the need for vigilance is at its greatest” (emphasis added).
76 See ECtHR, McCann and Others v. United Kingdom, Case No. 18984/91, Judgment (Grand Chamber), 1995, para. 161; ECtHR, McKerr v. United Kingdom, Case No. 28883/95, Judgment (Third Section Chamber), 2001, para. 171.
77 O. Chernishova in ICRC, above note 1, Appendix 6, p. 92.
78 ECtHR, Al-Skeini, above note 59, para. 93, citing P. Alston, UN Special Rapporteur, Extrajudicial, Summary or Arbitrary Executions, UN Doc. E/cn.4/2006/53, 8 March 2006, para. 36.
79 The Turkel Commission, above note 24.
80 Ibid., pp. 101, 103. See also the treatment of the Al-Skeini decision by the Commission at p. 109. The procedural requirements of an “investigation” under IHRL are beyond the scope of this paper. See Chevalier-Watts, Juliet, “Effective Investigations under Article 2 of the European Convention on Human Rights”, European Journal of International Law, Vol. 21, No. 3, 2010CrossRefGoogle Scholar, for a review of the various components that are part of an ECHR obligation to investigate; and Schmitt, Michael, “Investigating Violations of International Law in Armed Conflict”, Harvard National Security Journal, Vol. 2, 2011, p. 31Google Scholar, who, with reference to state practice, discusses how the relationship between IHL and IHRL impacts on investigations occurring within the context of armed conflict.
81 ICRC, above note 1, p. 49.
82 Ibid., p. 53.
83 Ibid.
84 ECHR, Art. 5, reads:
1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for noncompliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.
85 A. Gioia, above note 63, pp. 238–239.
86 Al-Jedda, above note 70, para. 100.
87 A. Gioia, above note 63; J. Bellinger III and V. Padmanabhan, above note 8; Pejic, Jelena, “The ECtHR's Al–Jedda Judgment: The Oversight of IHL”, International Review of the Red Cross, Vol. 93, No. 883, 2011, p. 837CrossRefGoogle Scholar; M. Sassòli and L. Olson, above note 16; K. Watkin, “Use of Force during Occupation”, above note 8.
88 ECtHR, Al-Jedda, above note 70, para. 101.
89 See J. Pejic, above note 87, p. 851.
90 Al-Jedda, above note 70, para. 107.
91 J. Pejic, above note 87, p. 851.
92 ECtHR, Al-Jedda, above note 70, para. 102 (emphasis added).
93 Ibid., para. 105.
94 A technique of interpretative presumption was road-mapped out, and tailored to Al-Jedda, for the ECtHR after the House of Lords' decision: see M. Milanovic, “Norm Conflict in International Law”, above note 8, p. 98.
95 In the absence of UN Charter Article 43 agreements, the UN Security Council developed a practice of implementing the collective security structure through the authorization of military action. For perspectives on the legal relevance of authorizations and its legal effect on Articles 25 and 103 which do not support the approach taken by the Court and which equate authorizations with obligations, the UK government had relied on; Simma, Bruno, “NATO, the UN and the Use of Force: Legal Aspects”, European Journal of International Law, Vol. 10, 1999, p. 1CrossRefGoogle Scholar; Gowlland-Debbas, Vera, “The Limits of Unilateral Enforcement in Community Objectives in the Framework of UN Peace Maintenance”, European Journal of International Law, Vol. 11, 2000, p. 361CrossRefGoogle Scholar; Danesh Sarooshi, The United Nations and the Development of International Security: The Delegation by the UN Security Council of Its Chapter VII Powers, Clarendon Press, Oxford, 1999, pp. 150–151; Kolb, Robert, “Does Article 103 of the Charter of the United Nations Apply Only to Decisions or Also to Authorisations Adopted by the Security Council?”, ZaöRV, Vol. 64, 2004, p. 21Google Scholar; ICJ, Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. United Kingdom), Provisional Measures, ICJ Reports 1993, p. 3; Lauwaars, Richard, “The Interrelationship between United Nations Law and the Law of Other International Organizations”, Michigan Law Review, Vol. 82, 1983–1984, p. 1604CrossRefGoogle Scholar; Rudolf Bernhardt, “Article 103”, in B. Simma (ed.), The Charter of the United Nations – A Commentary, 2nd ed., Oxford University Press, Oxford, 2002, p. 1302.
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97 Richard Gross in ICRC, above note 1, Appendix 5, p. 85.
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