Vito Todeschini, Università di Trento

In August 2017, the United Nations Human Rights Committee (HRC) presented the revised text of Draft General Comment 36 on the right to life (Draft GC 36), which offers an in-depth reading of Article 6 of the International Covenant on Civil and Political Rights (ICCPR or the Covenant). In discussing the protection of the right to life in situations of armed conflict, the HRC considers the relationship between the Covenant and International Humanitarian Law (IHL) (see here for an earlier commentary). In this post, I will analyse the HRC’s general approach to the interplay between the ICCPR and IHL, and look at how this is applied to the regulation of the use of force in armed conflicts. In particular, I will comment on the HRC’s failure to distinguish between the paradigms of the conduct of hostilities and law enforcement, which risks to undermine the protection of the right to life provided by the Covenant.

The Relationship between the ICCPR and IHL

In paragraph 67 of Draft GC 36, the HRC states the following:

«Like the rest of the Covenant, article 6 continues to apply also (to the conduct of hostilities) in situations of armed conflict to which the rules of international humanitarian law are applicable. While rules of international humanitarian law may be relevant for the interpretation and application of article 6, both spheres of law are complementary, not mutually exclusive.»

The language used in this passage borrows ‒ partly verbatim ‒ from previous GCs, specifically GC 29 (Derogations), 31 (Obligations under the Covenant), and 35 (Right to personal liberty and security). The first sentence reiterates what is now a largely accepted interpretation within international law: human rights law continues to apply in armed conflicts despite the concurrent applicability of IHL (ICJ Wall para 106). The second sentence, in turn, sets the theoretical elements upon which, in the HRC’s view, the relationship between the ICCPR and IHL rests: complementarity and systemic integration. Complementarity means that the two bodies of law to some extent converge in protecting certain rights. For example, in its 2006 Concluding Observations on the United States (US), the HRC held that Common Article 3 of the 1949 Geneva Conventions «reflects fundamental rights guaranteed by the Covenant in any armed conflict» (para 5). The complementarity perspective underlines that the ICCPR and IHL cannot be seen as either mutually exclusive or a priori conflicting. They should rather be considered, as far as possible, in a perspective of harmonious coexistence.

Since IHL is the principal legal framework governing armed conflicts, the HRC’s established view is that “more specific rules of international humanitarian law may be specially relevant for the purposes of the interpretation of Covenant rights” (GC 31 para 11). The above-quoted passage shows that Draft GC 36 adopts this same position with regard to Article 6 ICCPR. In this respect, the HRC makes implicit use of the principle of systemic integration codified in Article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT), according to which the interpretation of a norm must take account of «any relevant rules of international law applicable in the relations between the parties». By stating that in situations of armed conflict the Covenant is to be applied taking into account relevant and applicable IHL rules, the HRC adopts a harmonious interpretation of the norms pertaining to the two legal frameworks. The principle of systemic integration is in fact the interpretive criterion that operationalizes the complementary character of IHL and human rights law at the level of specific norms. This is confirmed by the case law of other human rights bodies (IAComHR Molina para 121; ECtHR Hassan para 102; IACtHR Ituango para 179; AComHPR DRC para 70). It is also worth noting that the HRC avoids making reference to the principle of lex specialis, originally invoked by the ICJ in the Nuclear Weapons opinion (para 25), which attracted wide criticism (Prud’homme, Milanovic, De Cooker&Ruys).

Applying Article 6 ICCPR in Armed Conflicts

What does it mean, then, to construe Article 6 ICCPR in light of IHL? According to Draft GC 36:

«[…] Uses of lethal force authorized and regulated by and complying with international humanitarian law are, in principle, not arbitrary.»

This sentence echoes the wording of paragraph 64 of GC 35, where it is stated that security detention «authorized and regulated by and complying with» IHL does not in principle violate the prohibition of arbitrary deprivation of liberty prescribed by Article 9 ICCPR (for commentary see here).

The HRC is proposing the same reasoning in respect of the prohibition on arbitrary deprivation of life enshrined in Article 6 ICCPR («No one shall be arbitrarily deprived of his life»): an attack conducted in accordance with IHL – notably the principles of distinction, proportionality, and precautions – and resulting in an individual’s death does not per se violate the Covenant. This interpretation is evidently founded on the principle of systemic integration: the prohibition of arbitrary deprivation of life is construed taking the IHL rules on the conduct of hostilities into account, as prescribed by Article 31(3)(c) VCLT. Thus, the HRC interprets the IHL and Covenant norms harmoniously, and avoids potential norm conflict between less restrictive IHL norms and more restrictive ICCPR provisions. The outcome is that a State cannot be held responsible under the Covenant for acts that are lawful under IHL.

In practice this means that, as long as IHL is respected, the use of lethal force against combatants or civilians directly participating in hostilities does not constitute an arbitrary deprivation of life. The same goes for proportionate collateral damage among civilians: incidental loss of civilian life which is not excessive in relation to the concrete and direct military advantage anticipated (see Article 57 AP I) is not arbitrary under Article 6 ICCPR. It is worth noting that the ICJ and human rights bodies have adopted similar views (ICJ Nuclear Weapons para 25; IAComHR Avilan para 168; IACtHR Santo Domingo para 211; AComHPR GC 3 para 32). In my opinion, this is a correct approach, as it strikes a reasonable balance between IHL and human rights norms governing the use of force. Holding otherwise would mean that States could not conduct the hostilities without breaching applicable human rights obligations. This would not only undermine the authority of IHL; it would also defeat its fundamental purpose of regulating the conduct of hostilities and protecting civilians and persons hors de combat.

Conduct of Hostilities versus Law Enforcement

What is problematic, however, is the failure by the HRC to nuance its position depending on the character of the conflict ‒ international (IAC) or non-international (NIAC) ‒ and to distinguish between the two paradigms governing the use of force: conduct of hostilities and law enforcement (for thorough analyses of these concepts see here, here and here). While the notion of law enforcement is not defined in international law, it is generally connected to the State function of maintaining law and order and to the power of law enforcement officers to use force, arrest and detain to that end. Law enforcement is primarily regulated by human rights norms, soft law instruments, and domestic law. Although in armed conflicts certain IHL provisions become relevant to the law enforcement paradigm (e.g. Article 43 Hague Regulation IV), the IHL rules on the use of force only apply to the conduct of hostilities. In particular, IHL regulates uses of force taking place in an armed conflict and having a nexus with it. As the ICRC explains (at 34), the rules governing the two paradigms differ substantially in many respects:

There are important differences between the conduct of hostilities and law enforcement paradigms. Principles of necessity, proportionality and precautions exist in both, but have distinct meanings and operate differently. While the conduct of hostilities paradigm allows lethal force to be directed against lawful targets as a first resort, the use of lethal force in law enforcement operations may be employed only as a last resort, subject to strict or absolute necessity. Persons posing a threat must be captured rather than killed, unless it is necessary to protect persons against the imminent threat of death or serious injury or to prevent the perpetration of a particularly serious crime involving grave threat to life, and this objective cannot be addressed through means less harmful than the use of lethal force.

The pre-eminence of IHL is straightforward only when the use of force is clearly part of the conduct of hostilities, be it in IACs (confrontations between enemy armed forces) or NIACs (e.g. the US-Iraqi military operation to re-take Mosul from the Islamic State). In these contexts, it is undisputed that the rule prohibiting arbitrary deprivations of life must be applied taking the rules of IHL into account (Syria COI Aleppo Report para 19).

In other instances, the dividing line between the conduct of hostilities and law enforcement paradigms is harder to draw. One reason is that State armed forces may be tasked with maintaining law and order, a situation that is most likely to occur during occupation (especially prolonged occupation), low intensity NIACs, NIACs taking place in limited portions of a State’s territory, and extraterritorial NIACs where a foreign State acts in support of the local government. If in the course of an armed conflict a riot erupted or a demonstration turned violent, armed forces would need to apply the law enforcement paradigm (for lack of a nexus between the riots/demonstrations and the conflict). As a consequence, (potentially) lethal force could only be used as a last resort, if strictly necessary, and in a proportionate manner. Only if civilians taking direct part in hostilities were to blend among the rioters or demonstrators, could lethal force be used against them pursuant to IHL (meaning that all feasible precautions to spare the life and limb of the other civilians would have to be adopted). In practice, however, it may be too difficult to clearly distinguish between fighters and civilians in such situations. This is why, for instance, the ICRC proposed «to deal with the entire situation under law enforcement, and apply an escalation of force procedure with respect to all persons posing a threat» (at 36).

This example shows the importance for the HRC to acknowledge that only in respect of the conduct of hostilities IHL is to be taken into account for the interpretation of Article 6 ICCPR. While reviewing the US policy on drones and targeted killings, the HRC already highlighted the relevance of the conflict nexus for using lethal force under IHL (2014 Concluding Observations para 9). The HRC should indeed recognise that during armed conflicts the rules on the use of force deriving from Article 6 ICCPR may be given priority based on a context-specific determination.

Conclusion

In my opinion, the HRC should amend the current text of Draft GC 36 and clarify that: 1) IHL governs only acts taking place in an armed conflict and which have a nexus with it; 2) Article 6 ICCPR regulates the use of force in law enforcement operations even during armed conflicts, with no need to take account of IHL for its interpretation; and 3) Article 6 may guide the use of force in all situations where the two paradigms apply concurrently and it is too difficult to isolate fighters from civilians. The HRC may, for those purposes, take inspiration from the African Commission’s GC 3:

«International humanitarian law on the conduct of hostilities must only be applied during an armed conflict and where the use of force is part of the armed conflict. In all other situations of violence, including internal disturbances, tensions or riots, international human rights rules governing law enforcement operations apply.»

The effective protection of the right to life in armed conflicts requires that in Draft GC 36 the distinction between the conduct of hostilities and law enforcement paradigms be clearly acknowledged. Otherwise, a risk exists that States will perceive they may use lethal force in accordance with IHL rules in instances where, during armed conflicts, the legal parameters set by Article 6 ICCPR are applicable.