by Panagiotis Kontakos,
Taking into consideration the example of the war in Yemen and the fact that more than 80% of the population depends on humanitarian aid, questions about the protection of the right to life during armed conflicts arise. The protection of the right to life during armed conflicts indicates the interaction between international humanitarian law (IHL) and international human rights law (HRL). Although it is said that both branches of law are moving towards the same direction, they tend to often contradict each other, especially regarding the right to life and the use of force against people not in the power or actual control of the State. More precisely, it is considered that IHL hardly grants any right to life-related to armed conflicts, whereas HRL protects in an absolute manner the life of the persons under the jurisdiction of a State. However, that approach is excessive. Both branches of law are applicable and complement each other during armed conflicts with respect to the right to life. They also converge and demonstrate compatible results. (Conforti, 1998, p. 124) This analysis presents the extent of the protection of the right to life during armed conflict under the light of IHL and HRL.
The interaction between International Human Rights Law and International Humanitarian Law
International Human Rights Law is a system of international norms aimed to protect and promote the human rights of all human beings, regardless their nationality, place of residence, sex, national origin, color, religion, or any other statues. HRL entails obligations of the States to act in certain ways or to abstain from specific acts, in order to protect the rights of human beings.
International Humanitarian Law consists of rules which seek, for humanitarian reasons, to limit the effects of armed conflicts. It aims to protect people who are not or no longer participating in hostilities, as well as to restrict the methods of warfare.
Today, it is widely recognized that “since human rights obligations derive from the recognition of inherent rights of all human beings and these rights could be affected both in times of peace and in times of war, International Human Rights Law continues to apply in situations of armed conflict”. There is no indication in human rights treaties that human rights would not be applicable in war times. The two bodies of law –IHL and HRL- are considered as complementary sources of obligations in armed conflict situations. Both branches of law aim to protect all persons and are based on the principles of respect for life, well-being and human dignity. They both find their sources in international treaties that have been reinforced by customary international law. The most important substantive difference is that the protection under IHL is mostly based on distinctions – basically between civilians and combatants – unknown in HRL.
International Human Rights Law is reflected in the Universal Declaration of Human Rights as well as in a number of international human rights treaties and in customary international law. The core universal human rights treaties are:
- The International Covenant on Economic, Social and Cultural Rights and its Optional Protocol;
- The International Covenant on Civil and Political Rights and its two Optional Protocols;
- The International Convention on the Elimination of All Forms of Racial Discrimination;
- The Convention on the Elimination of All Forms of Discrimination against Women and its Optional Protocol;
- The Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishments and its Optional Protocol;
- The Convention on the Rights of the Child and its two Optional Protocols;
- The International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families;
- The International Convention for the Protection of All Persons from Enforced Disappearance; and
- The Convention on the Rights of Persons with Disabilities and its Optional Protocol.
International Human Rights Law also comprises of rights and freedoms that have become part of customary international law.
On the other hand, International Humanitarian Law finds its sources in treaties and in customary international law. The following international instruments create the modern IHL:
- The Hague Regulations respecting the Laws and Customs of War on Land;
- The Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field;
- The Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea;
- The Geneva Convention (III) relative to the Treatment of Prisoners of War;
- The Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War;
- The Protocol Additional to the Geneva Conventions and relating to the Protection of Victims of International Armed Conflicts (Protocol I); and
- The Protocol Additional to the Geneva Convention and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II).
Other international treaties are considered as sources of IHL to the extent that they regulate warfare and impose restrictions on the use of certain weapons. Some of these treaties are listed below:
- The Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction;
- The Convention on Cluster Munitions;
- The Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction;
- The Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction;
- The Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be excessively injurious or to have indiscriminate effects; and
- The Treaty on the Non-Proliferation of Nuclear Weapons. (Commissioner, 2011, pp. 5-15)
The protection of the right to life under International Human Rights Law
The right to life, usually described as the “supreme value in the hierarchy of human rights” is guaranteed by HRL treaties and general international law. However, it is not absolutely protected. Capital punishment is an example of the lack of absolute protection (Article 6(2) ICCPR, Article 4(2) IACHR, Article 4 ACHPR). Most HRL instruments prohibit only “arbitrary” deprivations of life (Article 6(1) ICCPR, Article 4(1) ACHR, Article 4 ACHPR). The European Convention of Human Rights provides an exhaustive list of recognized reasons for lethal interventions (concerning mostly self-defense), namely:
- The defense of any person from unlawful violence;
- In order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
- In action lawfully taken for the purpose of quelling a riot or insurrection.
The lethal force should respect the principle of necessity and proportionality. In assessing whether the use of force is strictly proportionate, attention should be paid to the nature of the aim pursued, the dangers to life and the degree of the risk that the force employed might result in loss of life (Stewart v. United Kingdom, 1984, EComHR, para.19).
The States must abstain from arbitrary killings and must adopt positive actions in order to protect the life of people under their jurisdiction (L.C.B. v. United Kingdom, 1998, ECtHR, para. 36). The positive obligations could take the form of:
- The duty to enact legislation to safeguard the right to life.
- The duty to take all possible precautions and control police action in order to minimize the use of lethal force.
- The duty to prevent persons under the jurisdiction of the State to attack the physical integrity of others.
- The duty to conduct a thorough and meaningful enquiry in case a person has been killed (Kaya v. Turkey, 1998, ECtHR, para. 87).
These rules developed under HRL can be also applied in situations of armed conflict. For example, HRL bodies require the State to search for and collect the wounded and sick after an engagement, like IHL does (Ahmet Ozkan v. Turkey, 2004, ECtHR, paragraphs 307-308).
The protection of the right to life under International Humanitarian Law
How could the right to life be truly protected, since the combatants are licensed to kill during an armed conflict? The answer is being given, by taking into consideration that the license applies only to a particular segment of persons, situations and time during an armed conflict. There are also many provisions protecting the life of combatants and civilians. (Calogeropoulos-Stratis, 1980, p. 141)
According to Article 48 of the 1977 Additional Protocol I to the 1949 Geneva Convention, “the parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives”. This provision expresses the so-called principle of distinction. Based on this principle, the extent of the protection of the right to life in armed conflict depends on the status of the person (combatant or civilian). (Quéguiner, 2006, p. 296)
The protection of the right to life of the combatants is limited based on the moment and activity at stake. If they are considered “hors de combat”, their protection against killings acts is the same guaranteed to the civilians (Article 12 and Article 50 of the 1949 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field). During hostilities, the only legitimate object which States should endeavor to accomplish is to weaken the military forces of the enemy. If there is the possibility only to injure without killing, the necessity principle would impose only the injury. (Calogeropoulos-Stratis, 1980, p. 144) The taking of life would be considered as illegal under IHL, if it flows from refusal or quarter, recourse to perfidy or use of weapons causing unnecessary suffering. The illegality of the means and methods of the hostility entails the illegality of the result (Article 23 (b)(c)(e)(f) of the 1907 Hague Regulations Respecting the Laws and Customs of War on Land, Article 12 of the Geneva Convention I, Article 12 of the Geneva Convention II).
Civilians enjoy stronger protection of their right to life than combatants. The parties of the conflict should refrain from killing civilians under their control and should adopt some positive measures for the protection of the life of civilians under their jurisdiction. The civilians are granted general immunity as they cannot be treated as the object of direct attacks (except if they participate in the hostilities and only during the time of this direct participation). They are protected against indiscriminate attacks. Collateral civilian casualties are accepted by the rules of the conduct of war to the extent that the losses are not excessive in relation to the concrete and direct military operation. The principle of precaution requires that military operations be conducted with an effort of sparing civilian populations. The notion of the “least possible damage” means that the States shall “take all feasible precautions in the choice of means and methods of attack, with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects”. (Doswald-Beck, 2005, p. 56)
The rules applying to Non-International Armed Conflicts are less precise concerning the protection in combat. For example, many weapons have been prohibited by instruments applying to International Armed Conflict, but only a few weapons have been prohibited by instruments applying to Non-International Armed Conflicts. The right to life is also less protected during Non-International Armed Conflicts than during International Armed Conflicts. However, the majority of rules concerning the warfare applicable during International Armed Conflicts is customarily also applicable during Non-International Armed Conflicts (ex. the principle of distinction). (Doswald-Beck, 2005, p. 83)
A comparison of the protection of the right to life between IHL and HRL
The right to life is protected in a different way in HRL and in IHL. The paths followed in order to determine if the killing of people is illegal are different.
Under HRL, the following questions indicate the path:
- Does the use of force respect the conditions of municipal law concerning the right to life?
- If the killing results from actions of State agents, did the use of lethal force follow a legitimate aim? Was it absolutely necessary to achieve that aim? If the casualty was the result of private action, did the competent State agents take the appropriate preventive action?
- Did the State, during the planning and control phase of the police action, take all the feasible measures to minimize the eventuality of the use of force and of civilian casualties?
- Did the State thoroughly and effectively inquire into the causes of the casualty?
Under IHL, the following questions show the legality of killing:
- Did the killing take place in the context of an International Armed Conflict or in the context of a Non-International Armed Conflict?
- What was the status of the person killed, combatant or civilian?
- Were the means and methods used in the military action lawful? If the victim was a civilian, was the attack indiscriminate or conducted without proper precautions?
Another difference between HRL and IHR is the following: while in IHL the protection of life is different under International Armed Conflict and Non-International Armed Conflict, in HRL the protection of life does not vary according to the situation. On these grounds, protection under HRL seems stronger. Nevertheless, the following arguments make that difference not very intense:
- Customary International Law reduces the differences between International Armed Conflict and Non-International Armed Conflict.
- Under the European Convention, the right to life cannot be violated “except in respect of deaths resulting from lawful acts of war” (Article 15(2) ECHR).
In addition, under IHL, the protection of life depends on the status of the person (civilian or combatant). Even though the combatant can be killed during an armed conflict, a civilian cannot be directly targeted and killed, apart from the case that he participates in the hostilities and only during that participation. In contrast, under HRL, there is no distinction based on status. Every person shall enjoy the right to life, regardless of race, origin, age, color or any other status. The use of lethal force is only allowed if there is an absolute necessity for self-defense. Even though it seems that HRL grants a higher degree of protection than IHL, this is not absolutely correct. Someone could consider that even a combatant may not be killed if he could be captured or injured (principle of military necessity). (Calogeropoulos-Stratis, 1980, p. 141)
The principles of necessity and proportionality are common to both branches of law, but they operate in different settings. Under HRL, the use of lethal force must represent the ultima ratio to fulfill a legitimate aim such as self-defense. Under IHL, necessity is not applied to the lawfulness of the resource to force (jus ad bellum). It remains applicable to the military actions taken as such. The important difference between the two fields seems to be the criterion according to which the principle of necessity is measured. In HRL, the measuring rod is the legitimate aim, while in IHL it is the “concrete and direct military advantage anticipated”. In the situation of armed conflicts, both concepts may perfectly converge. (Hampson, 1992, pp. 125-126)
It is believed that the proportionality principle is stricter in HRL as it requires scrutiny into measures avoiding at a maximum level of any casualties. However, in IHL, only a manifest disproportion would be considered as unlawful. (Hampson, 1992, p. 127) Under IHL, an attack is considered as disproportionate, if it is expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination of them, being excessive in relation to the concrete military advantage anticipated (Article 51(5)(b) of the Additional Protocol I). In fact, innocent third people could be lawfully killed incidentally, as, unlikely HRL, the law of armed conflict allows, or at least tolerates, the killing and wounding of innocent persons not directly participating in an armed conflict, such as civilian victims of lawful collateral damage. Furthermore, the proportionality principle under IHL is supported by the principle of the “least possible damage”. The participation in the conflict parts shall take all feasible precautions in the choice of means and methods of attack with a regard to avoiding and minimizing incidental loss of civilian life, injury to civilians and damage to civilian objects. On the basis of the above-mentioned elements, the proportionality principle is perceived as generally equivalent in both branches. In addition, the IHL principle of proportionality – as defined in Article 51(5)(b) of the Additional Protocol I – covers only incidental civilian damage, to the exclusion of combatant or military injuries. On the other hand, HRL uses an aggregate notion of proportionality, without any such distinction. However, necessity and proportionality constitute general principles of IHL and apply not only to the special situation of Article 51 API. Thus, the possibility to injure or capture the target of the attack, if it is realistically possible, shall be considered.
Consequently, considering that IHL is based on the principle of freedom to kill, while HRL is based on the protection of life constitutes an absolute overstatement. Both branches of law support the minimum use of force. They both protect the right to life and they both provide some realistic exceptions. If HRL goes further in protection, the differences concern the degree of such protection. (Hampson, 1992, pp. 127-130)
In times of armed conflict, HRL and IHL are both applicable. IHL could be considered as a complementary body enforcing the protection of the right to life offered under HRL. If there is a conflict between HRL provision and IHL provision, it shall be questioned which rule is more protective and appropriate for the circumstances of the case. Huge and obvious contradictions between the two branches are rare since they both converge on several grounds and they both try to safeguard the right to live in a maximum possible way, during an armed conflict. A thorough and global approach over the two branches of law seems to be an adequate tool in order to offer the highest possible level of protection of the right to life during armed conflicts when life becomes extremely vulnerable.
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Commissioner, U. N.-O. (2011). International Legal Protection of Human Rights in Armed Conflict.
Conforti, B. (1998). L’ interaction des Normes Internationales Relatives à la protection des Droits de l’ Homme. Pedone.
Doswald-Beck, J.-M. H. (2005). Customary International Humanitarian Law. International Committee of the Red Cross.
Hampson, F. (1992). Using International Human Rights Mechinery to Enforce the International Law of Armed Conflicts. Rev. de Droit Pénal Militaire et de Droit de la Guerre.
Quéguiner, J. F. (2006). Le principe de distinction dans la conduite des hostilités. Institut universitaire de hautes études internationales.