{"id":22042,"date":"2024-04-18T08:00:10","date_gmt":"2024-04-18T06:00:10","guid":{"rendered":"https:\/\/voelkerrechtsblog.org\/?p=22042"},"modified":"2024-04-18T12:36:19","modified_gmt":"2024-04-18T10:36:19","slug":"whos-afraid-of-human-rights-in-war-part-ii","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/whos-afraid-of-human-rights-in-war-part-ii\/","title":{"rendered":"Who\u2019s Afraid of Human Rights in War? (Part II)"},"content":{"rendered":"

In Part I of this response<\/a>, I addressed the background of the Nagorno-Karabakh conflict and the fact pattern of Narayan and Others v. Azerbaijan<\/em><\/a> before the European Court of Human Rights (ECtHR), before turning to the arguments<\/a> raised by Tabriz Musayev, a consultant for the respondent State regarding the State agent and control (SAAC) model of jurisdiction under Article 1 of the European Convention on Human Rights (ECHR). This second part proceeds to address wider ranging issues raised by Musayev, namely his contentions regarding the concept of a \u2018short war\u2019 and the applicability of international humanitarian law (IHL) and his broader points on the interplay between IHL and international human rights law (IHRL) during situations of armed conflict.<\/p>\n

\u2018Short Wars\u2019 and Legal Fictions <\/strong><\/p>\n

The author\u2019s argument proceeds to descend into an unserious section on the notion of a \u2018short war\u2019 (terminology not germane to international legal scholarship or practice) whose irrelevance to the post\u2019s arguments regarding the relationship between IHL and IHRL is nearly eclipsed by its confused conflation of jus ad bellum<\/em> and jus in bello<\/em> issues.<\/p>\n

The notion of a \u2018short war\u2019, while not a formally or commonly used phrase, appears intended to informally refer to uses of armed force under jus ad bellum<\/em> that fall below the threshold<\/a> of an \u2018armed attack\u2019 qualifying as a violation of the Article 2(4) of the UN Charter (cf. Military and Paramilitary Activities<\/em><\/a>, para. 191; Oil Platforms<\/em><\/a>, para. 51). In its most recently updated Commentary<\/em><\/a> on common Article 2 of the Geneva Conventions, the ICRC provides that a determination on the existence of an international armed conflict (IAC) \u201cbased on the prevailing facts should also conform to \u2013 and help preserve \u2013 the strict separation of\u00a0jus in bello<\/em>\u00a0from\u00a0jus ad bellum<\/em>\u201d, adding that \u201cthe determination of the existence of an armed conflict and the related applicability of international humanitarian law depend only on the circumstances prevailing on the ground and not on whether the use of force against another State is permitted under the UN Charter\u201d (para. 248). Musayev erroneously relies on the jus ad bellum<\/em> notion of \u2018short war\u2019 in asserting that incidents of \u201cexchanging fires between border patrols of neighbouring countries, using torpedos on vessels of or shooting down aeroplanes of the other state \u2026 do not constitute armed conflict\u201d meaning that \u201cIHRL takes primacy over IHL.\u201d<\/p>\n

Musayev\u2019s argument is a bizarre exercise in legal fiction. It is well known that there is no intensity threshold requirement<\/a> for the existence of an IAC and, thus, that IHL applies from the instant inter-State armed force occurs (see Tadi\u0107 <\/em>Jurisdiction Decision<\/a>, para. 70; \u010celebi\u0107i<\/em> Trial Judgment<\/a>, para. 184; Lubanga<\/em> Confirmation Decision<\/a>, para. 207; ICRC GC IV Commentary<\/em><\/a>, pp. 20\u201321). While the ILA Use of Force Committee has proposed<\/a> an intensity criterion for all armed conflicts, including IACs (pp. 29\u201330), the Committee\u2019s report only cites ICTY jurisprudence on non-international armed conflicts in support of this proposition, where an intensity requirement is already accepted (see Art. 1(2) AP II<\/a>).<\/p>\n

But even in this regard, the ICTY Trial Chamber in Gotovina et al.<\/em><\/a> added that<\/p>\n

\u00a0[o]nce the law of armed conflict has become applicable, one should not lightly conclude that its applicability ceases. Otherwise, the participants in an armed conflict may find themselves in a revolving door between applicability and non-applicability, leading to a considerable degree of legal uncertainty and confusion (para. 1694).<\/p><\/blockquote>\n

No support for an intensity requirement for IACs is found in the Geneva Conventions, AP I, or accepted norms of customary IHL. Moreover, \u201c[t]o import an intensity requirement into the definition of international armed conflicts is effectively to assert that no law governs the conduct of military operations below that level of intensity\u201d (Akande<\/a>, p. 41). Musayev\u2019s implicit argument that the jus ad bellum<\/em> standard of \u2018armed attack\u2019 is also the standard dispositive as to the application of IHL is so completely lacking a basis in law that I regret my devotion of so many words to addressing it to the extent that it may be mistaken as lending it even a modicum of credence.<\/p>\n

Beyond the IHL context, not having occurred in the context of active hostilities during an IAC, the regressive approach of the Grand Chamber in Georgia v. Russia (II)<\/em><\/a> to SAAC jurisdiction and the right to life during the \u2018active phase\u2019 of an IAC (see para. 137) is inapplicable to the factual circumstances of Narayan<\/em>. This is notwithstanding the markedly arbitrary and ill-guided nature of the Grand Chamber\u2019s reasoning with regard to SAAC jurisdiction during the \u2018active phase\u2019 of IACs (see Marko Milanovic\u2019s tour de force<\/em> of a critique<\/a>). The notion of a \u2018short war\u2019, lacking basis in either IHL or IHRL, is a complete red herring.<\/p>\n

Correcting and Unnuanced Understating of the Interplay between IHL and IHRL<\/strong><\/p>\n

On a related note, Musayev\u2019s argument that, in Narayan<\/em>, the ECtHR \u201ceschewed applying IHL in analysing the alleged violation of the right to life during\u201d an IAC conflates concise form with deficient substance. Contrary to Musayev\u2019s mischaracterizations, the fundamentals of the relationship between IHL and the right to life under IHRL is no long a matter of serious controversy. The International Court of Justice (ICJ) has been explicit and consistent in affirming a complementary lex specialis<\/em> relationship between the two bodies of law. In its Wall<\/em><\/a> advisory opinion, affirming and clarifying its previous findings in its Nuclear Weapons<\/em><\/a> advisory opinion (para. 25), the ICJ observed as follows with regard to the relationship between IHL and IHRL:<\/p>\n

[T]he protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation … As regards the relationship between international humanitarian law and human rights law, there are thus 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 these branches of international law. In order to answer the question put to it, the Court will have to take into consideration both these branches of international law, namely human rights law and, as lex specialis<\/em>, international humanitarian law (para. 106).<\/p><\/blockquote>\n

The ICJ most recently reaffirmed this construction of the relationship between the two bodies of law in its Armed Activities<\/em><\/a> case (paras. 215\u201316). In the ECtHR\u2019s leading case on the interplay between the ECHR and IHL, Hassan v. UK<\/em><\/a>, the Grand Chamber explicitly observed that the Court must interpret and apply the ECHR in a manner \u201cconsistent with the framework\u201d laid out by the ICJ in the Wall <\/em>and Armed Activities<\/em> cases (para. 102). The ECtHR is confined to considering whether States have breached their IHLR obligations under the ECHR.<\/p>\n

Accordingly, the ECtHR does not actually apply IHL in its standard of review, rather, it seeks to ensure that the ECHR is \u201cinterpreted in so far as possible in light of … the rules of international humanitarian law which play an indispensable and universally accepted role in mitigating the savagery and inhumanity of armed conflict\u201d (Varnava and Others v. Turkey<\/a><\/em>, para. 185). While it is true that, in Narayan<\/em>, the ECtHR could (and likely should) have devoted more space to explicitly interpret Article 2 \u201cin a manner which takes into account the context and the applicable rules of international humanitarian law\u201d (Hassan v. UK<\/em>,<\/a> para. 106), the conclusion of the Court regarding Azerbaijan\u2019s substantive violation of Article 2 is entirely compatible with IHL. Musayev posits that the killing the Armenian soldiers was likely permissible under IHL, with reference to the general permissibility of targeting combatants, with reference to Rule 3 of the ICRC Customary IHL Study<\/a> and Article 43(2) of AP I<\/a>. Yet this represents a grievous oversimplification of the applicable IHL rules in determining the arbitrariness of killing combatants in war that functions to effectively strip combatants of their right to life under Article 2 of the ECHR.<\/p>\n

While they are not afforded \u2018civilian\u2019 status (Marti\u0107 <\/em>Appeal Judgment<\/a>, para. 302), it is forbidden to kill combatants rendered hors de combat<\/em>, defined by Article 41(2)(a) of AP I<\/a> as including those who are \u201cin the power of an adverse Party\u201d. Much like SAAC jurisdiction under Article 1 of the ECHR, this phrase is to be interpreted more broadly than \u201cfallen into the power\u201d of an adverse party (e.g., Article 4 GC III<\/a>), with the ICRC Commentary<\/em><\/a> observing that hors de combat <\/em>encompasses a combatant who has been rendered\u00a0 \u201cdefenceless\u2026 whether or not he has laid down his arms\u201d (para. 1630), offering the pertinent example of a soldier who has been \u201csurprised in his sleep by the adversary\u201d (para. 1614). This was clearly the case in the shooting of the two Armenian soldiers in Narayan<\/em><\/a>, \u201cone while using the toilet and the second while attempting to fill a water tank, both having been unarmed and wearing civilian clothing at the time of the shooting\u201d (para. 101).<\/p>\n

It should be noted that the ICRC has also advocated<\/a> for the principles of military necessity and humanity as potential restraints on the permissive killing of combatants whereby, \u201cwhile operating forces can hardly be required to take additional risks for themselves or the civilian population in order to capture an armed adversary alive, it would defy basic notions of humanity to kill an adversary or to refrain from giving him or her an opportunity to surrender where there manifestly is no necessity for the use of lethal force\u201d (p. 82). Beyond these the specific factual circumstances of Narayan<\/em>, to adopt Musayev\u2019s black and white view that the killing of a combatant by another combatant is essentially always lawful under Article 2, particularly in Narayan<\/em> where Gurbanov was praised inter alia<\/em> with the title<\/a> of \u2018National Hero of Azerbaijan\u2019 posthumously (see mutatis mutandis<\/em> Makuchyan and Minasyan<\/em><\/a>, para. 116), would represent a cowardly abdication on the part of IHRL. This contention is simply incompatible with the complementary relationship between the IHL and IHRL drawn out both by the ICJ and the ECtHR.<\/p>\n

Conclusion<\/strong><\/p>\n

With the above-mentioned inter-State applications pending before the Court, further confrontations with the issues of SAAC jurisdiction during armed conflict and the interplay between IHL and the ECHR in the context of Nagorno-Karabakh are almost certainly in the ECtHR\u2019s near future. Moving forward, antiquated constructions of SAAC jurisdiction\u2014such as those leveled as means of criticism of the Narayan and Others v. Azerbaijan<\/em> judgment\u2014must be dispensed of, in line with the consistent approach of the ECtHR. Musayev\u2019s argument of a restricted formulation of personal jurisdiction under Article 1 of the ECHR must accordingly be viewed as one lagging far behind the Court\u2019s jurisprudence on the matter. Moreover, Musayev\u2019s attempt to import jus ad bellum<\/em> standards into established questions of IHL, beyond its invalidity, is simply an exercise of tilting at windmills\u2014the ECtHR has been clear that the protections of the ECHR and those of IHL can operate symbiotically and complementarily.<\/p>\n

Yet it is in the clear that the ECtHR, from Bankovi\u0107<\/em> to Al-Skeini<\/em> and full circle back to Georgia v. Russia (II)<\/em>, has been anything but straightforward in delineating how this relationship is to be constructed in complex situations of IACs. Nevertheless, Musayev\u2019s over-simplified approach, importing IHL combatant privileges lock, stock, and barrel into IHRL, is far from the harmonizing solution it is framed as. To adopt such a view\u2014with the effect of rendering IHRL largely impotent during IACs\u2014would be to give true meaning to Voltaire\u2019s words: \u201cIt is forbidden to kill; therefore all murderers are punished unless they kill in large numbers and to the sound of trumpets.\u201d<\/p>\n","protected":false},"excerpt":{"rendered":"

In Part I of this response, I addressed the background of the Nagorno-Karabakh conflict and the fact pattern of Narayan and Others v. Azerbaijan before the European Court of Human Rights (ECtHR), before turning to the arguments raised by Tabriz Musayev, a consultant for the respondent State regarding the State agent and control (SAAC) model […]<\/p>\n","protected":false},"author":8,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[6639],"tags":[4358,5954,5955,3782],"authors":[7413],"article-categories":[6000],"doi":[],"class_list":["post-22042","post","type-post","status-publish","format-standard","hentry","category-uncategorized","tag-armed-conflict","tag-armenia","tag-azerbaijan","tag-ecthr","authors-mischa-gureghian-hall","article-categories-article"],"acf":{"subline":"On the Place of the ECHR during Armed Conflict in Response to a Misguided Critique of Narayan and Others v. Azerbaijan\r\n"},"meta_box":{"doi":"10.17176\/20240418-103500-0"},"_links":{"self":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/22042","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/users\/8"}],"replies":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/comments?post=22042"}],"version-history":[{"count":3,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/22042\/revisions"}],"predecessor-version":[{"id":22053,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/22042\/revisions\/22053"}],"wp:attachment":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/media?parent=22042"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/categories?post=22042"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/tags?post=22042"},{"taxonomy":"authors","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/authors?post=22042"},{"taxonomy":"article-categories","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/article-categories?post=22042"},{"taxonomy":"doi","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/doi?post=22042"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}