Why Human Rights Bodies Find the Application of Humanitarian

Law Problematic

Because the founding premises of IHL and human rights are different, the two bodies of law do
not always approach their subject matter in the same way. This of course has not stopped
human rights treaty bodies applying human rights to situations of armed conflict without making
use of the lex specialis principle. This approach is not justified as a matter of legal doctrine but
by practical considerations. Human rights treaty bodies are only empowered to apply their
respective treaties, none of which makes direct references to IHL.

One should also note the lack of expertise of human rights treaty bodies with other specialist
areas of international law which, coupled with their desire to promote protection, may allow them
to render erroneous results.

Although human rights courts cannot apply IHL over and above their founding instruments, they
cannot lightly dismiss the reality of armed conflict and the rationale of IHL rules, to which, in any
event, all states have subscribed by reason of treaty or customary international law.

The obligation to take precautions in order to avoid civilian casualties is addressed to

Human rights courts have not, however, gone as far as saying that government forces must try
to first arrest a combatant or rebel before opening fire against him or her or using other lethal
force. Nonetheless, they have distinguished armed conflicts from other situations involving
lower-intensity hostilities, such as terrorist operations, in respect of which they have asserted
the obligation of the state to arrest the suspect, rather than kill, where this is feasible.

Human Rights in Situations of Military Occupation

In recent times occupations have arisen by unilateral military action, or as a result of coalition
initiatives supported by the UN Security Council (UNSC), as was the case with the occupation of
Iraq in 2003. Given that all types of military occupation involve the dissolution of sovereign
powers, which are thereafter assumed by the occupier, it is only natural that international law
imposes a set of strict obligations on the occupier, the purpose of which is to protect the rights of
the occupied civilian population. Under article 42 of the 1907 Hague Regulations, a territory is
considered occupied when it is actually placed under the authority of the occupying state. In this
manner, the existence of occupation is a matter of fact, rather than a matter of law and exists
irrespective of its recognition by the occupier. Moreover, the legal effects of occupation extend
only to territories over which the occupying power exercises effective control.
This observation is particularly important for the application of human rights, because under
customary international law the occupier replaces the previous government in the territory
concerned and must ‘take all the measures in [its] power to restore, and ensure, as far as
possible, public order and safety, while respecting, unless absolutely prevented, the laws in
force in the country’.

Despite the absence of armed hostilities a military occupation is nonetheless chiefly regulated
by IHL, not by human rights law, and thus the armoury of human rights is not automatically
transplanted in the relationship between the occupier and the occupied population. There are
some cogent reasons for this approach, particularly the possible existence of resistance
movements and the resumption of armed confrontations by non-state actors against the
occupier during the course of the occupation.

As a result, there is a need to determine the precise boundary between the obligation of the
occupier to protect the civilian population from the entitlement under the laws of war to attack
those civilians who take up arms against its authority.

Reason dictates that the lex specialis character of the law of belligerent occupation does not
exclude the application of human rights to the occupied population, so long as such rights are
not detrimental to law and order or violate the occupier’s rights under international law.

That human rights law applies in occupied territories – and by extension the international human
rights obligations of the occupier – is necessitated by practical considerations. Occupations can
drag on for decades in relative peace and order, so it is inconceivable that the occupier could
suspend the enjoyment of rights to the civilian population indefinitely.

1. The Extraterritorial Application of Human Rights in Occupied Territories

It has been established that the occupier cannot deny the applicability of its ordinary human
rights obligations to the population of the occupied territory. This obligation is subject to two
distinct practical limitations. First, the territory in question must be actually occupied, thus
excluding parts thereof that are controlled, or sufficiently resisted, by rebel movements.
Secondly, the application of human rights by the occupier does not ipso facto entail access to its
national courts, unless this possibility is expressly postulated.

The human rights obligations of a state are generally owed to all persons on its territory, both
citizens and aliens; they are not owed to persons situated in other states. As a result, the
ordinary operation of human rights is territorial, whereas the operation of humanitarian law is
also extraterritorial, in the sense that it is applicable wherever a state is engaged in armed
conflict, whether internally or abroad.

Whereas occupying states have traditionally relied on the international law of occupation in
order to avoid the application of human rights law, the recent ‘erosion’ of this body of law by
human rights courts has forced states to increasingly refute their exercise of occupation by
relying on technicalities. Human rights courts have been able to expand the obligations of states
beyond their territories not by enforcing the positive obligations owed by occupiers under IHL,
but rather through a logical and purposive interpretation of the jurisdictional clauses contained in
their statutes.

2. The Effective Control Test

The Effective Control Test is a legal principle used in international human rights law to
determine the responsibility of states for human rights violations committed within their territory
or jurisdiction. It was developed by the European Court of Human Rights and is now recognized
by other international and regional human rights bodies.

According to the Effective Control Test, a state is responsible for human rights violations
committed within its jurisdiction if it exercises effective control over the territory where the
violations occurred. Effective control means that the state has the ability to prevent or stop the
violations, but it does not necessarily require the state to have actual knowledge of the
violations.

Following the invasion of Cyprus in 1974 by Turkish armed forces the island was effectively cut
in the middle; the northern part was occupied by the Turkish military, whereas the southern part
remained in the hands of its elected and universally recognised government, that of the
Republic of Cyprus. Despite the claims of the occupier that the Turkish armed forces merely
assisted the Turkish Cypriot community in the exercise of its right of self-determination, which
led to the self-proclamation of the so-called Turkish Republic of Northern Cyprus (TRNC), no
state has extended recognition to the TRNC.

The aim of the occupier was clearly to refute any claims of occupation, arguing instead that a
new nation had emerged which was not only a distinct entity from Turkey itself but a full
sovereign. By doing so it also aimed to avoid all responsibility under general international law,
IHL and human rights law. Within a few years of the separation of the island the Turkish
government had resettled a significant number of persons from mainland Turkey with a view to
altering the demographic status quo, and proceeded to abrogate the property rights of Greek
Cypriots who had fled in fear of their lives.

The Loizidou case was the first to challenge Turkish assumptions about the legal status of the
occupation. The applicant owned property in the occupied north prior to the invasion and was
precluded by the authorities from peacefully enjoying her property rights.

Turkey, on the other hand, argued that the territory of the TRNC, being an independent state,
was outside its jurisdiction and hence outside the ambit of the ECHR. The central issue was
therefore the precise meaning of ‘jurisdiction’ for the purposes of article 1 of the ECHR, with
particular reference to situations in which a state party exercised some degree of control in the
territory of a non-party state. The ECtHR iterated that the responsibility of a party may be
invoked on account of: (1) acts of its authorities, whether performed within or outside national
boundaries, which produce effects outside its own territory; as well as (2) ‘when as a
consequence of military action – whether lawful or unlawful – it exercises effective control of an
area outside its national territory’.

3. The Decisive Influence Test

The Decisive Influence Test is a legal principle used in international human rights law to
determine the responsibility of states for human rights violations committed outside their territory
or jurisdiction. It was developed by the European Court of Human Rights and is now recognized
by other international and regional human rights bodies.

According to the Decisive Influence Test, a state may be held responsible for human rights
violations committed outside its jurisdiction if it exercises decisive influence over the entity that
committed the violations. Decisive influence means that the state has the ability to control the
entity's actions and decisions to a significant extent.

The ECtHR has had the opportunity to deal with situations in which a third state was providing
support to a separatist movement, without overtly employing armed force itself. In the Ilaşcu
case the applicants were unlawfully arrested and detained by the breakaway authorities of the
so-called Moldovan Republic of Transdniestria (MRT), which while claiming its unilateral
independence, is in fact part of the Republic of Moldova. Yet because of Russian military and
political assistance to Transdniestria and the presence of elements of the Russian army therein
– as part of military arrangements predating the independence of Moldova – the Moldovan
government has been unable to quell the insurrection or use force against the separatist forces.

The Court decided to dilute its effective overall control standard, without sufficient legal
justification, stating that Russian jurisdiction and responsibility were triggered because the MRT
‘remain[ed] under the effective authority, or at the very least under the decisive influence, of the
Russian Federation, and in any event that it survives by virtue of the military, economic, financial
and political support given to it by the Russian Federation’

This responsibility of the principal in respect of acts of its agents is a significant feature of
human rights law – apart from the international law of state responsibility – because it serves to
encompass the violations of the agent within the sphere of human rights obligations ordinarily
applicable to the principal.
The Relevance of the Law to Battlefield Conditions

1. Human Physiology in Combat Situations

In assessing whether or not the laws of war are consistent with combat exigencies one must
have recourse to factors that are external to law. Legislative drafting that is aimed at exacting
conduct of a particular standard must be pitched at such a level that the conduct conforms to
what may ordinarily be expected by the average person. If the required conduct were to exceed
the ordinary capabilities of the average person, then the envisaged law would either fail or the
authorities would be forced to punish the majority of the population; IHL is not excluded from
this proposition.

By way of illustration, it is reasonable to assume that the average person when faced with the
threat of immediate and certain death would kill rather than be killed. If the law required that the
threatened person should choose his or her death under such circumstances it would not only
set an impossible standard for the average members of society (i.e. self-sacrifice), but it would
moreover be absurd, since what future penalty could be worse had the threatened person
decided to succumb to the threat?

IHL does not set intractable standards of behaviour to combatants. On the contrary, it would
seem that obligations aimed to spare civilians, prisoners of war and wounded persons from
harm, hardly place any suffering or stress on those engaged in armed conflict. Yet history shows
that violations of IHL are a persistent factor in contemporary conflicts, and in many instances
governments make every effort to conceal these from public scrutiny

The two strands of the human body’s nervous system, the sympathetic (SNS) and the
parasympathetic (PNS), ensure a healthy balance under ordinary circumstances. However,
when stressors kick in, such as the prospect of lethal threat, conscious control is replaced by
automation and in particular the SNS mobilises every atom in the human body as a reaction to
the stressor. This is such an intense and automated process that the heart rate increases from
seventy beats a minute to over two hundred beats a minute, while it has been reported that in
the heat of deadly combat many soldiers find themselves unable to control their bladders or
sphincters.

A study carried out on the effects of heightened SNS as a result of combat stress demonstrates
among others: diminished hearing (80 per cent), tunnel vision (80 per cent), slow motion time
(65 per cent), intrusive destructive thoughts (26 per cent) and detachment (40 per cent).69
These effects are induced by the secretion of hormones such as adrenaline, epinephrine and
norepinephrine that dilate and constrict the body’s bronchial tubes, vascular system and
muscles during combat.70 This automated process and its effects on physical and perceptual
functions must return to some normality following the cessation of the stressful event; if SNS
continues at peak level unabated the person will die. As a result, it is the PNS that ensures the
body’s return to the condition of homeostasis. The nervous system thus automatically operates
as a thermostat to avoid overheating, so to speak. However, the parasympathetic descent to a
state of relative calmness following an immediate stress upon the nervous system is not without
consequences.

This discussion was intended to shed some light on whether the obligations imposed by IHL on
combatants are realistic in relation to the effects of combat stress. It is clear that IHL rules do
not demand unrealistic conduct from their addressees. Professional armies, on the other hand,
push their personnel to their limits and combat-weary soldiers are made to undertake sensitive
duties, such as guarding prisoners or civilians, without having undergone sufficient
psychological and physiological recovery. This does not of course absolve soldiers of any
criminal responsibility for violating IHL under such circumstances, unless their state is such that
they did not intend to commit the wrongful conduct, or lacked knowledge of it (lack of mens rea).

Interview 16.1: Battlefield Compliance (Charles Garraway and Anon.)

The Dilution of Humanitarian Law and Problems in Ensuring Compliance

While it is true that compliance is to some degree predicated on personal traits, its general
enforcement is dependent on a coherent system of discipline that allows for no deviation. This
type of discipline is the hallmark of all professional armies, yet there exists a very real tension
between armies and the executive branch of government.

This tension arises from the fact that the gruesome, daily combat experience of the professional
soldier is perceived as being inadequately communicated to the law-makers who make their
decisions in the comfort of their office. At the same time, the law-maker is unable to
communicate to the soldier the overarching political, military and economic aims of a military
campaign, which are much broader than the calamities of the particular combat zone in which
he or she is engaged.

More importantly, the military and the politicians cannot see eye to eye on the restrictions placed
by the latter on the use of lethal force in combat and peacekeeping operations. Ordinarily, the
use of lethal force would be circumscribed by the relevant rules of IHL as well as any particular
mandate incumbent on the mission by the UNSC.

Truth be said, the professional armies of developed nations are fluent in their knowledge of IHL,
undergo extensive training and are subject to frequent psychometric tests and evaluations.
These armies and their executives claim that they make every effort to prevent the perpetration
of crimes, yet the practice of courts-martial against heinous behaviour on the battlefield or in
occupied territories demonstrates a degree of leniency that would be unacceptable if the crimes
under question had taken place during civilian life.
The dilution of IHL through secretive ROE has been demonstrated through a series of leaks
concerning confidential documents that have come to light since 2007 in respect of the US-led
war effort in Iraq. One of these documents is a US ROE addressed to its military personnel,
which although generally consistent with IHL and while emphasising the importance of good
conduct, contains none the less an injunction that is highly problematic. It elaborates on those
targets that are deemed as being of ‘high collateral damage’ and in respect of which only the
Secretary of Defense can authorise their destruction.

the ROE were at pains to emphasise compliance with IHL, the risk to the civilian population from
the operations described in the last section is very significant.. It is difficult to justify the
suggested casualty rate on the scale of military necessity, particularly given that the operations
in Iraq did not involve a full-scale war, but were largely directed against insurgent attacks.