Who’s Afraid of Human Rights in War? (Part II)

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 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 ‘short war’ 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.

‘Short Wars’ and Legal Fictions

The author’s argument proceeds to descend into an unserious section on the notion of a ‘short war’ (terminology not germane to international legal scholarship or practice) whose irrelevance to the post’s arguments regarding the relationship between IHL and IHRL is nearly eclipsed by its confused conflation of jus ad bellum and jus in bello issues.

The notion of a ‘short war’, while not a formally or commonly used phrase, appears intended to informally refer to uses of armed force under jus ad bellum that fall below the threshold of an ‘armed attack’ qualifying as a violation of the Article 2(4) of the UN Charter (cf. Military and Paramilitary Activities, para. 191; Oil Platforms, para. 51). In its most recently updated Commentary on common Article 2 of the Geneva Conventions, the ICRC provides that a determination on the existence of an international armed conflict (IAC) “based on the prevailing facts should also conform to – and help preserve – the strict separation of jus in bello from jus ad bellum”, adding that “the 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” (para. 248). Musayev erroneously relies on the jus ad bellum notion of ‘short war’ in asserting that incidents of “exchanging fires between border patrols of neighbouring countries, using torpedos on vessels of or shooting down aeroplanes of the other state … do not constitute armed conflict” meaning that “IHRL takes primacy over IHL.”

Musayev’s argument is a bizarre exercise in legal fiction. It is well known that there is no intensity threshold requirement for the existence of an IAC and, thus, that IHL applies from the instant inter-State armed force occurs (see Tadić Jurisdiction Decision, para. 70; Čelebići Trial Judgment, para. 184; Lubanga Confirmation Decision, para. 207; ICRC GC IV Commentary, pp. 20–21). While the ILA Use of Force Committee has proposed an intensity criterion for all armed conflicts, including IACs (pp. 29–30), the Committee’s 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).

But even in this regard, the ICTY Trial Chamber in Gotovina et al. added that

 [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).

No support for an intensity requirement for IACs is found in the Geneva Conventions, AP I, or accepted norms of customary IHL. Moreover, “[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” (Akande, p. 41). Musayev’s implicit argument that the jus ad bellum standard of ‘armed attack’ 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.

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) to SAAC jurisdiction and the right to life during the ‘active phase’ of an IAC (see para. 137) is inapplicable to the factual circumstances of Narayan. This is notwithstanding the markedly arbitrary and ill-guided nature of the Grand Chamber’s reasoning with regard to SAAC jurisdiction during the ‘active phase’ of IACs (see Marko Milanovic’s tour de force of a critique). The notion of a ‘short war’, lacking basis in either IHL or IHRL, is a complete red herring.

Correcting and Unnuanced Understating of the Interplay between IHL and IHRL

On a related note, Musayev’s argument that, in Narayan, the ECtHR “eschewed applying IHL in analysing the alleged violation of the right to life during” an IAC conflates concise form with deficient substance. Contrary to Musayev’s 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 relationship between the two bodies of law. In its Wall advisory opinion, affirming and clarifying its previous findings in its Nuclear Weapons advisory opinion (para. 25), the ICJ observed as follows with regard to the relationship between IHL and IHRL:

[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, international humanitarian law (para. 106).

The ICJ most recently reaffirmed this construction of the relationship between the two bodies of law in its Armed Activities case (paras. 215–16). In the ECtHR’s leading case on the interplay between the ECHR and IHL, Hassan v. UK, the Grand Chamber explicitly observed that the Court must interpret and apply the ECHR in a manner “consistent with the framework” laid out by the ICJ in the Wall and Armed Activities cases (para. 102). The ECtHR is confined to considering whether States have breached their IHLR obligations under the ECHR.

Accordingly, the ECtHR does not actually apply IHL in its standard of review, rather, it seeks to ensure that the ECHR is “interpreted 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” (Varnava and Others v. Turkey, para. 185). While it is true that, in Narayan, the ECtHR could (and likely should) have devoted more space to explicitly interpret Article 2 “in a manner which takes into account the context and the applicable rules of international humanitarian law” (Hassan v. UK, para. 106), the conclusion of the Court regarding Azerbaijan’s 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 and Article 43(2) of AP I. 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.

While they are not afforded ‘civilian’ status (Martić Appeal Judgment, para. 302), it is forbidden to kill combatants rendered hors de combat, defined by Article 41(2)(a) of AP I as including those who are “in the power of an adverse Party”. Much like SAAC jurisdiction under Article 1 of the ECHR, this phrase is to be interpreted more broadly than “fallen into the power” of an adverse party (e.g., Article 4 GC III), with the ICRC Commentary observing that hors de combat encompasses a combatant who has been rendered  “defenceless… whether or not he has laid down his arms” (para. 1630), offering the pertinent example of a soldier who has been “surprised in his sleep by the adversary” (para. 1614). This was clearly the case in the shooting of the two Armenian soldiers in Narayan, “one 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” (para. 101).

It should be noted that the ICRC has also advocated for the principles of military necessity and humanity as potential restraints on the permissive killing of combatants whereby, “while 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” (p. 82). Beyond these the specific factual circumstances of Narayan, to adopt Musayev’s black and white view that the killing of a combatant by another combatant is essentially always lawful under Article 2, particularly in Narayan where Gurbanov was praised inter alia with the title of ‘National Hero of Azerbaijan’ posthumously (see mutatis mutandis Makuchyan and Minasyan, 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.

Conclusion

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’s near future. Moving forward, antiquated constructions of SAAC jurisdiction—such as those leveled as means of criticism of the Narayan and Others v. Azerbaijan judgment—must be dispensed of, in line with the consistent approach of the ECtHR. Musayev’s 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’s jurisprudence on the matter. Moreover, Musayev’s attempt to import jus ad bellum standards into established questions of IHL, beyond its invalidity, is simply an exercise of tilting at windmills—the ECtHR has been clear that the protections of the ECHR and those of IHL can operate symbiotically and complementarily.

Yet it is in the clear that the ECtHR, from Banković to Al-Skeini and full circle back to Georgia v. Russia (II), has been anything but straightforward in delineating how this relationship is to be constructed in complex situations of IACs. Nevertheless, Musayev’s 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—with the effect of rendering IHRL largely impotent during IACs—would be to give true meaning to Voltaire’s words: “It is forbidden to kill; therefore all murderers are punished unless they kill in large numbers and to the sound of trumpets.”