Application Of International Human Rights Law Research Articles

Divisions Over Distinctions in Wartime International Law

Under what conditions International Human Rights Law (IHRL) applies in wartime? Who is a combatant, and who is a non-combatant, given that International Humanitarian Law (IHL) sets very different rules for each? When do armed conflicts begin and end, and what are their spatial boundaries, given that IHL only applies to armed conflict? What conditions distinguish international from non-international armed conflict ("IAC" from "NIAC"), given that distinct IHL corpus governs each? What law applies to cross-border fights between non-State and State forces ("transnational wars"): peacetime international law, IAC-law, NIAC-law, or a new IHL altogether? Since the early-2000s, such war-related legal classifications have been evermore, un-resolvability debated. This chapter addresses that classification crisis. It aims to enrich the discourse with the following five provocative thoughts: First, it refutes the received historical account that the current crisis results from the rise of a new kind of war. The attributes of current conflicts are much less novel than assumed. Second, it refutes the accepted (overly) Statist history of IHL, showing that IHL application to NIAC, and even to transnational wars, is much older than widely thought. Third, it shows that current uncertainty is, in part, not a crisis, rather a chronic fact of life, stemming from the inevitable nature of ‘law’ and of ‘war’. Moreover, the chapter presents a recently neglected IHL norm–The Adaptation Approach–that has long aided IHL in addressing such uncertainty. Four, it reveals the main cause for the current actual legal crisis: for two decades, a struggle has been waging in IHL, driven by the competing attempts of hardline-Statists and hardline-IHRL-advocates to take sole control over its shaping. Current escalating uncertainty primarily stems from these attempts and from the clash between them. Five, the chapter responds by rebutting the fundamental premise of each hardline faction: (a) It shows that the Hardline-Statist drive to loosen wartime legal constraints gravely underrates existing IHL. (b) It argues that IHRL-advocates over-estimate the benefits of extensive wartime application of IHRL; counter-intuitively, the co-application of IHRL and IHL diminishes (rather than increases) civilian protection. The chapter, thus, invites us to radically question the role IHRL should play in armed conflict.

The Protection of Civil Populations Living in De Facto States

De facto states exist in a state of transition, the end of which is either statehood or extinction. During this period, as non-state actors, they cannot conclude nor accede to international treaties. However, those which survive long enough usually display a state-like structure. It is argued in this paper that this state-like structure leads to the attribution of certain rights and obligations to the entity in the international legal order, in particular as the entity exercises effective authority on a territory, and more importantly, on a population. The principal research question addressed reads as follows: are there any legal mechanisms allowing for the protection of civil populations living in de facto states under international humanitarian law (IHL) and international human rights law (IHRL), and to what extent can these entities be held accountable for violations of their populations' rights? In the Council of Europe area, de facto states have been the subject of an innovative jurisprudence aiming to protect the rights of civil populations living under their authority. The analysis of this case-law, of international instruments, reports and agreements as well as a critical analysis of the different legal theories elaborated to hold de facto states — or other states — accountable for violations of these populations' rights provide the basis to lay down a coherent theory of the applicability of IHL and IHRL in de facto states. The analysis of de facto states' status under international law is a preliminary to the assessment of their capacity to bear rights and obligations in the international order. I then consider de facto states as war-waging entities, and examine the justifications for the imposition of IHL obligations on them, as well as the content and sources of such obligations. I subsequently draw on these findings regarding the applicability of IHRL, and develop the analysis using various theories suggested in academic literature to make de facto states, as governing authorities of a territory, bound by IHRL. The extent to which those theories are reflected in practice is examined together with a discussion of the relevant jurisprudence of the ECtHR. This provides the necessary material to assess and conclude on whether de facto states can ever be held internationally accountable for violations of IHL and IHRL norms applicable to them, and whether their civil populations can fully enjoy the related rights despite being subjected to a non-state actor governing authority.