Regulating a ‘state of exception’ in Times of War: The Legal Regime Applicable to Derogation in Situations of Armed Conflict

Abstract

Abstract An armed conflict is one of the severest forms of ‘public emergency’, the very condition to activate the derogation regime of international human rights law. There is indeed no greater threat to the very survival of a nation to warrant the suspension of human rights than an armed conflict. However, while adopting the relevant international humanitarian law (IHL) treaties, states have bound themselves ‘to respect and ensure the respect for’ the norms enshrined therein, regardless of the urgency and exceptional challenges that they may face as a result of an armed conflict. As such, derogation from the baseline rules in those treaties is, in principle, not permissible by making reference to the existence of military necessity or the general state of armed conflict. Notwithstanding this, some provisions in the various IHL treaties exceptionally envisage the possibility of derogation from the rights and privileges of a particular group of victims of armed conflict for security reasons. One of such provisions is Article 5 of the Fourth Geneva Conventions (GC IV), which explicitly allows derogation both within a state’s own and occupied territories. Similar other provisions, albeit some without express mentioning of derogation, can also be found in the Four Geneva Conventions (1949) and their Additional Protocols of 1977. Nonetheless, there is a common thread that runs through these provisions, that is, a state’s power of derogation is limited by strict legal constraints. This essay aims at illustrating these normative restrictions by fleshing out the limits placed upon states’ ability to suspend the rights and freedoms of some individual victims of armed conflict, using Article 5 of GC IV as a reference point. It is argued that while derogation from some norms of IHL is exceptionally possible and lawful, any derogation measure should comply with some procedural and substantive requirements and remain justified throughout its duration. No exceptional circumstance, whether the exigencies of military necessity or the protection of national security, can be invoked to dispense with such requirements.