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International Humanitarian Law and International Human Rights Law$

Orna Ben-Naftali

Print publication date: 2011

Print ISBN-13: 9780191001604

Published to Oxford Scholarship Online: September 2011

DOI: 10.1093/acprof:oso/9780191001604.001.0001

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Norm Conflicts, International Humanitarian Law, and Human Rights Law

Norm Conflicts, International Humanitarian Law, and Human Rights Law

Chapter:
(p.95) 4 Norm Conflicts, International Humanitarian Law, and Human Rights Law
Source:
International Humanitarian Law and International Human Rights Law
Author(s):

Marko Milanović

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780191001604.003.0004

Abstract and Keywords

This chapter rejects this conclusion: the lex specialis maxim ‘must be abandoned as a sort of magical, two-word explanation of the relationship between international humanitarian law (IHL) and international human rights law (IHRL) as it confuses far more than it clarifies’. The discussion of the interaction of particular norms of IHL and IHRL that regulate specific situations advances the following argument: such interaction will frequently result in a norm conflict, for which there are numerous tools for either conflict resolution or avoidance; lex specialis is at best a fairly limited tool of norm conflict avoidance, which cannot be used to describe the relationship between human rights and humanitarian law as a whole; and there are situations in which all legitimate interpretive tools will fail us, where a norm conflict will be both unavoidable and irresolvable due to a fundamental incompatibility in the text, object and purpose, and values protected by the interacting norms, and where the only possible solution to the conflict will be a political one. The chapter identifies three such possible situations of irresolvable antinomy — targeted killings, preventive security detention, and positive obligations during occupation — and discusses them in the light of recent cases.

Keywords:   international humanitarian law, international human rights law, lex specialis maxim, norm conflict

1. Introduction

Much has been written on the relationship between international humanitarian law (IHL) and international human rights law (IHRL). So much so, in fact, that it is hard to find something new, not to mention useful, to say. This chapter will therefore not attempt to reinvent the wheel or shift paradigms. Rather, it will seek to assess the state of our efforts to explain the relationship between these two bodies of law, and then determine its prospects and limitations.

At the outset it must be said that this is not an abstract academic endeavour, but rather a pragmatic and practical project designed to have a real-life impact. Together with the related question of the extraterritorial application of human rights treaties, the IHL/IHRL project serves several purposes. The first, and broadest, is the affirmation of an idea: the law applicable in war is no longer solely a law between sovereigns who agree out of grace and on the basis of reciprocity to limit themselves in their struggles in order to reduce the suffering of innocent people. Rather, human beings embroiled in armed conflict retain those rights that are inherent in their human dignity, which are more—not less—important in wartime than in peacetime, and which apply regardless of considerations of reciprocity between warring parties.

Consequently, a more radical purpose of the project (perhaps not universally shared even among its adherents) is to shift the balance between effectiveness and humanitarianism struck by states during the drafting of the major IHL treaties more in the direction of humanitarianism. In other words, what we as participants in this project really want to do by examining the relationship between IHL and IHRL law is to further humanize IHL.1 We do this partly by using human rights norms to fill the gaps or areas left unregulated or very sparsely regulated by IHL, (p.96) for example with regard to non-international armed conflicts, and partly by trying to change some outcomes that are in fact determined by IHL through the introduction of human rights rules and arguments into the equation.

Finally, a more down to earth purpose of the project is the enforcement of IHL through human rights mechanisms.2 Thus, even if human rights substantively added nothing to IHL, ie if the relationship between IHL and IHRL was such that IHRL in wartime brought no fewer, but also no more, protections for individuals than IHL, there would still be a point in regarding IHL and IHRL as two complementary bodies of law. IHL, now (jurisdictionally) framed in human rights terms, could be enforced (or attempts could be made to enforce it) before political bodies, such as the Human Rights Council or UN political organs more generally,or through judicial and quasi-judicial mechanisms, such as the International Court of Justice, the European Court of Human Rights, the UN treaty bodies, or domestic courts.3

In brief, we wish to (boldly) take human rights to places, be they extraterritorial situations or those of armed conflict, or both, where, as a matter of practical reality, no human rights have gone before. Saying openly that we are participating in a project with pragmatic and transformative ends in mind, rather than engaging in some sort of abstract discovery of the law, does not mean that we as lawyers are doing so illegitimately, or that we are usurping the legislative prerogatives of states. It is the states themselves that have affirmed the complementary application of IHL and human rights law, both in the texts of the relevant human rights treaties4 (that were after all concluded in the aftermath of the most inhumane abuses committed during an armed conflict, the Second World War), and in their official pronouncements in international fora. States have also greatly contributed to the humanization of IHL through the adoption of the 1977 Additional Protocols to the 1949 Geneva Conventions, for example through their provisions on fundamental humanitarian guarantees, or through greater limitations on reprisals.5 As is often the case, states may not have abided in practice with their commitments as they should have, but this does not mean that these commitments were not made. (p.97)

That said, there are limits to what legitimate methods of interpretation can do to harmonize IHL and IHRL. Further, for human rights-based arguments to be even remotely persuasive in regard to situations of armed conflict, and to avoid the impression of a fluffy, utopian human-rightist disregard for the realities of international relations, these arguments must meet certain requirements. First, it is immediately apparent from even a cursory examination of the case-law on the application of human rights treaties extraterritorially or in times of armed conflict that courts greatly fear over-complexity and their own institutional incompetence, whether perceived or real. A paradigmatic example would be Bankovic 6—that rightfully much maligned case7—which was at least in part the product of the European Court's apprehensiveness regarding its lack of both expertise and a reliable factual record in order to apply IHL through IHRL to a situation as politically sensitive as was the NATO bombing of Yugoslavia. Therefore, we have to be able to offer courts and other relevant bodies some relatively clear, workable rules on both threshold applicability issues and on substantive issues that can arise from the joint application of IHL and human rights law.

Second, it must also be realized that there is a price to be paid for the joint application of IHL and IHRL. Though it may be our goal to further humanize IHL, in order to do so we must also be prepared to water down IHRL to make its application possible and practical. To the extent that war and armed conflict are accepted as a reality—as they must be, if this project is to make any sense—human rights norms cannot be applied in a business as usual kind of way, with their interminable casuistry and balancing of this and that. Considerations of effectiveness must always be taken into account. This may be a somewhat obvious point, but it must be made nonetheless.

Yet it must also be stressed that though human rights have to be watered down to be applied jointly with IHL, they must not be watered down too much. Not only would this defy the whole purpose of the exercise, but it would also potentially compromise the values safeguarded by the human rights regime in peacetime.8 For instance, allowing the state to kill combatants or insurgents under human rights law without showing an absolute necessity to do so, or to detain preventively during armed conflict, might lead to allowing the state to do the same outside armed conflict, with one precedent leading to another, and then another, and yet another. The potential of emergencies or states of exception to balloon out (p.98) and become the norm rather than the exception has of course long been recognized. This is, inter alia, why there are derogation clauses in human rights treaties, and why they impose such strict requirements on any derogation. In other words, there must be caution in applying IHL together with human rights, as it is human rights that might lose something in the process.9 After all, for all its humanitarian ethos, IHL is still a discipline about killing people, albeit in a civilized sort of way.10

Having taken these considerations into account, we can move on to their implications for the relationship between IHL and IHRL. First, in order to be able to provide judges and other decision-makers with workable rules that they may then apply, and (more importantly) that they would be willing to apply, the focus of our debate must be shifted from the relationship between the two regimes as such, to the relationship between the particular norms belonging to the two regimes that control specific factual situations. Secondly, since this relationship is of course but one of many that contribute to the wider phenomenon of the fragmentation of international law,11 we must be prepared to fully employ the toolbox that the doctrine of international law provides us with for avoiding or resolving conflicts of norms. Thirdly, we must place the lex specialis maxim, whose exact nature remains unclear, inside that toolbox. Having done so, we will realize that lex specialis must be abandoned as a sort of magical, two-word explanation of the relationship between IHL and IHRL, as it confuses far more than it clarifies. Finally, we must be prepared to concede that there are some situations—perhaps not many, but by no means practically irrelevant—where the international lawyer's craft and tools will fail, and where no legal solution can be provided. Such situations of unresolvable conflict or antinomy can be solved only in the manner in which they were created—through the political process. I will address these issues in turn.

2. A Relationship between Norms, not between Regimes

The relationship between IHL and IHRL, and the fragmentation phenomenon more broadly, are often examined from a high altitude perspective of a relationship between two or more legal regimes. Though there may be some use in such inquiries, they are more often than not unhelpful. When it comes to the relationship between IHL and IHRL in particular, they can not only (p.99) be unhelpful—viz the lex specialis mantra—but misleading and even dangerous as well. To see how this can be the case, we need only turn to the most remarked upon examples of such high altitude pronouncements, those of the International Court of Justice.

As is well known, the Court's first foray into the matter took place in the Nuclear Weapons Advisory Opinion, where it remarked that:

[i]n principle, the right not arbitrarily to be deprived of one's life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities. Thus whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the Covenant, can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself.12

It is of note that the Court in Nuclear Weapons did not really examine the relationship between IHL and IHRL as regimes. It examined the relationship between one particular IHRL norm, the right to life, and, at that, the right to life as it is formulated in Article 6 ICCPR (which is worded differently to Article 2 ECHR, for instance), and the relevant rules of IHL. It was these specific rules that were held to be lex specialis, in that they could help interpret the ‘arbitrary’ part of Article 6 ICCPR in times of armed conflict. Though the Court pronouncement was thus framed in terms of one particular problem and one particular set of norms, it nonetheless understandably provoked an academic extrapolation to the relationship between IHL and IHRL as a whole. The Nuclear Weapons Opinion was thus understood as saying that IHL defines what IHRL means in wartime, with IHRL guaranteeing no less, but also no more, rights to individuals affected by armed conflict than does IHL.13

Our discussions have of course evolved since then, and so has the ICJ, whose next pronouncement in the Wall Advisory Opinion was decidedly broader in nature:

More generally, the Court considers that the protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation of the kind to be found in Article 4 of the International Covenant on Civil and Political Rights. 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.14

(p.100)

As opposed to Nuclear Weapons, the Court here does refer to IHL as lex specialis to IHRL, ie it considers not only some particular norms, but one regime to be special to the other. The problem with such a characterization is not just that it is overly broad, but also that the concept of lex specialis is vague and can mean at least two radically different things, as I will explain below.15 (It should be noted, in that regard, that when the Court in Congo v Uganda quoted its dictum from the Wall case,16 it dropped the reference to lex specialis. Whether this omission was intentional is anyone's guess but let us hope that it was.) On a purely practical level, the three categories outlined by the Court do not work at all, if only because the Court does not say anything about which rules fall within which category, and on what basis. If you are, say, a British judge asked to rule under the Human Rights Act whether the preventive security detention of persons by British troops in Iraq violates Article 5 ECHR, the ICJ's dicta will provide you with precisely zero guidance.

To say, therefore, that the two ‘spheres of law are complementary, not mutually exclusive’,17 may be perfectly true, but is nonetheless equally unhelpful in providing practical solutions to actual cases. The complementarity claim is only an answer to the equally broad counter-claim that the two regimes are mutually exclusive. To the extent that the latter was for many years the default position—and admittedly it was so, as a matter of actual practice—the complementarity claim does have a purpose. But beyond that, it does not solve anything. It is the relationships between specific IHL and IHRL norms that need examining.18

As I stated above, dwelling too much on the relationship between regimes, instead of on the relationship between the relevant norms, is not only unhelpful, but can also be dangerous. Indeed, it can be particularly dangerous if we refer to IHL as lex specialis to IHRL as a whole. Consider, for instance, the Bush administration's legal strategy in its ‘war on terror’. It denied that persons detained in Guantánamo were entitled to protection under human rights law on the basis of two separate arguments. First, it contended that the relevant human rights treaties did not apply extraterritorially. Second, it claimed that even if they did, they were displaced by IHL, which applied as lex specialis to the putative global armed conflict between the US and Al Qaeda.19 Even if IHRL did apply formally, it granted no more protection than IHL. Because the detainees were ‘unlawful combatants’, they enjoyed no protection under IHL; because the absence of a rule, ie an unrestrained freedom for the state to act, is also a rule, IHRL brought nothing to the table, and the Guantánamo detainees had no rights under international law. Now, admittedly, this argument of the departed administration was a succession of non (p.101) sequiturs, but it was nonetheless made using the same language in which the gentler souls among us argue for a complementary relationship between IHL and IHRL, lex specialis and all.20

We are past that stage where there is much use in general inquiries as to the relationship between IHL and IHRL as regimes. Moreover, those who continue to oppose the joint application of IHL and IHRL will not be persuaded to the contrary no matter what generalities we or the ICJ might produce. If this is so, then why bother? It is enough to say that the complementary nature of the relationship between IHL and IHRL is confirmed by numerous pronouncements by states and international political bodies,21 by international courts and tribunals,22 by the text of derogation clauses of human rights treaties and, above all else, by the object and purpose of the treaties.23 If human rights accrue to human beings solely by virtue of their humanity, why should these rights then evaporate merely because two states, or a state and a non-state actor, have engaged in an armed conflict? More limited these rights might be, but they cannot be completely extinguished or displaced if their basic universality premise, that they are immanent in the human dignity of every individual, is accepted.24 And though it is of course quite possible for this premise to be contested on ideological grounds, in legal terms that premise is hard-coded into the relevant international human rights instruments. In other words, it is the law that human rights are universal and that they accrue to every human being, war or no war. Nothing more needs to be said, and indeed nothing more can be said on the matter.

It is to specific practical problems and their solutions that we must turn. Before doing that, however, we must take stock of the tools that are at our disposal to avoid or resolve norm conflicts.

3. Norm Conflict Avoidance and Norm Conflict Resolution

A. Defining norm conflict

To provide a norm conflict perspective on the relationship between IHL and IHRL (an expression that I will continue to use merely as convenient shorthand, with all of the caveats stated above), I must first give both a definition of norm (p.102) conflict and some other conceptual clarifications.25 The notion of conflict will be defined broadly: a relationship of conflict exists between two norms if one norm constitutes, has led to, or may lead to, a breach of the other.26 With regard to IHL and IHRL norms specifically, the notion of conflict could be defined even more broadly—a norm conflict would exist whenever the application of the two norms leads to two opposite results, for example if IHL provided that a particular use of force was lawful, while IHRL made it unlawful.

A further distinction must be made between apparent and genuine norm conflicts, and consequently between conflict avoidance on the one hand, and conflict resolution on the other. An apparent conflict is one where the content of the two norms is at first glance contradictory, yet the conflict can be avoided, most often by interpretative means. In instances in which all techniques of conflict avoidance fail, a genuine, as opposed to an apparent, conflict will emerge.27 These true norm conflicts are those that cannot be avoided, but which it might be possible to resolve. Unlike avoidance, which interprets away any incompatibility, norm conflict resolution requires one conflicting norm to prevail or have priority over the other. Moreover, for a genuine conflict to be truly resolved in a case of conflicting obligations it is necessary for the wrongfulness on the part of the state for failing to abide by the displaced norm to be precluded as a matter of state responsibility. It is only if the state bears no legal cost for disregarding one of its commitments in favour of another that a norm conflict has truly been resolved.28

An examination of a norm conflict situation will usually proceed in two steps. The first is an inquiry into whether it is possible to avoid a norm conflict by interpreting the two potentially conflicting norms so as to make them compatible. Second, if avoidance is impossible, the conflict might be resolved by assigning priority to one norm over the other. However, as I will show, a third outcome is also possible, and is in fact far from unlikely—that a norm conflict will not only be unavoidable, but also unresolvable. In such situations, which are a consequence of the diffuse and decentralized nature of the international legal system, there can only be a political solution to the conflict between two equal norms.29 Regrettably, despite our best efforts, a number of the potentially conflicting norms of IHL and IHRL might end up in this third category.

But before venturing into this third category, I will examine the utility of the various tools of norm conflict resolution and avoidance. I will start with methods of norm conflict resolution, even if only to show how impracticable they are in addressing IHL and IHRL norm conflicts. (p.103)

B. Methods of norm conflict resolution

Purely practically speaking, international law is not, and it might never be, a legal system in which a hierarchy based on the sources of norms plays an important role. Although, for example, a treaty will usually prevail over a customary rule, this is so only because the customary rule is jus dispositivum, and applies only so long as states do not agree otherwise30—and the same goes for treaties. Of course, IHL and IHRL norms that can be in a state of apparent conflict can emanate from both custom and treaties, the custom usually being derived in large part from the treaties to which many but not all states concerned may be parties. There are four principal ways of resolving norm conflict, which, as stated above, requires the assigning of priority to one norm over another: (1) jus cogens; (2) Article 103 of the UN Charter; (3) conflict clauses in treaties; and (4) lex posterior.

There is probably no concept that has attracted so much scholarly attention, yet so little practical application, as jus cogens. And by little, I mean zero. There has not been, to my knowledge, a single case where jus cogens was unambiguously the basis for a court ruling that a conflicting rule of international law was null and void.31 There are several reasons why this is so. First, as a general point, rigid hierarchy does not sit well with the overarching structure of international law, which is still largely the product of consensual law-making between states. Secondly, despite what some of its more fervent adherents might claim, the number of rules that undisputedly belong to the category of jus cogens (for instance, the prohibition of torture, genocide, or slavery) is quite limited.32 Thirdly, states are not nearly so foolish as to conclude treaties or engage in some other sort of international law-making that is openly contrary to jus cogens norms.

Finally, jus cogens is a blunt instrument, which allows for no balancing of conflicting interests, but mandates a single result on the basis of hierarchy. In cases lacking similar political and moral certainty—and that would be almost all of them—the use of such an instrument would pose an understandably unappealing prospect for most judges. It should likewise be noted in that regard that Article 53 of the Vienna Convention on the Law of Treaties (VCLT), which solidified the status of jus cogens as positive law, provides not that a particular norm that conflicts with a rule of jus cogens is void, but that the treaty which so conflicts, all of it, would be void.33 Now, assuming the general validity of Article 53 VCLT, imagine if we were to say that an IHRL rule prevails over an IHL rule contained in one or more of the Geneva Conventions because it has the (p.104) status of jus cogens—this would mean the voidness of the Geneva Conventions, not just of that particular rule.

Aside from jus cogens, there is one other quasi-hierarchical rule of norm conflict resolution that does have practical relevance—Article 103 of the UN Charter. It provides that:

[i]n the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.

Most importantly, this priority rule extends to state obligations under binding resolutions of the UN Security Council.34 Depending on the situation, the Council can thus inject rules of its own making into the IHL/IHRL calculus, rules that arguably have priority over all others save for jus cogens. A good example would be the Al-Jedda case before English courts,35 where a dual Iraqi/British national was held in security detention by British forces in Iraq. He was so held not under any authority of the UK as an occupying power, both because he was a British national and because the occupation had arguably already been terminated at the time. Rather, he was held on the basis of an authorization of preventive detention by the Security Council in its Resolution 1546 (2004), with the House of Lords deciding that this authorization prevailed over Article 5 ECHR, which does not allow for detention on preventive grounds, by virtue of Article 103 of the Charter.36

As for conflict clauses, they are used in treaty practice to explicitly give priority to one treaty over another,37 though not nearly often enough.38 Obviously, no such clauses exist in the relevant IHL and IHRL treaties. The closest we come to them are the derogation clauses in human rights treaties, which allow for the temporary suspension of certain rights during an emergency to the extent strictly required by the exigencies of the situation.39 By limiting the content of applicable human rights law, as it were, derogations can potentially resolve many conflicts with IHL. However, as a practical matter, such derogations are rarely used, particularly in an extraterritorial context, since their use by a state would be interpreted as a concession that the IHRL treaty in question in principle applies extraterritorially to a given situation, and would thus open up the state's actions to judicial scrutiny, even if a curtailed one.40 Consequently, for example, the UK has not derogated from (p.105) either the ECHR or the ICCPR in respect of the conflicts in Iraq and Afghanistan, thereby creating, rather than resolving, a host of difficult problems.41

Finally, there is that equally magical sibling of lex specialis (on which more in a moment), lex posterior. In domestic legal systems, which are after all a model for us as to how any legal system is supposed to work, if the legislature passes a statute which contradicts a prior statute, the latter in time will prevail, even if it does not contain a clause saying so explicitly. We justify this rule basically by inferring the relevant intent on the part of the single, uniform legislature, operating within a unified hierarchical system, which is not supposed to issue contradictory commands to citizens. However, whatever its validity in domestic law, this assumption manifestly does not hold true in the international system.42 This is why (what goes for) the international lex posterior rule43 can hardly ever apply to conflicting multi-lateral law-making treaties, even assuming that they could be deemed to relate to the same subject matter, which is a prerequisite for the rule's application. When it comes to the IHL and IHRL treaties in particular, not only is there the obvious problem that the law-making in the two areas temporally occurred in several waves, so that it is somewhat absurd to treat these treaties as successive to each other in a lex posterior sense, but there is also not the slightest hint of state intent that the relationship between the two bodies of law should be governed by this rule.

In conclusion, the only two rules of norm conflict resolution that are of practical relevance for the relationship between IHL and IHRL are Article 103 of the Charter and the derogation clauses of human rights treaties. As is also the case more generally, it is the methods of norm conflict avoidance which are far more useful in practical terms.

C. Methods of norm conflict avoidance

Every legal system, but particularly the international one, can simultaneously tend towards fragmentation, because it tries to accommodate a number of widely diverging values and interests, and towards harmonization, because without a measure of unity a legal system would soon stop being one and thus divide into several particular regimes. The latter tendency is especially evident in case law, as judges are generally more or less keen on preserving the integrity of the system to which they perceive themselves as belonging. Avoidance of norm conflict hence usually is (and should be) the first recourse.44 When two norms can be interpreted harmoniously, they generally are—we in fact do norm conflict avoidance all the time. (p.106)

For the purposes of this chapter, I propose to (entirely informally) trace the various forms of avoidance on a broad spectrum, ranging from ‘consistent’ at one end to ‘forced’ at the other, with ‘creative’ being somewhere in the middle. Let me explain each more fully.

Consistent avoidance happens when the language, object and purpose, and other structural elements of the two potentially or apparently conflicting norms can be reasonably reconciled without much effort. An example has been given by the ICJ in Nuclear Weapons—Article 6 ICCPR prohibits ‘arbitrary’ deprivations of life, while IHL can tell us what ‘arbitrary’ means in times of armed conflict. Such a method of interpretation is warranted, inter alia, by the principle of systemic integration set out in Article 31(3)(c) VCLT, which requires that other applicable rules of international law be taken into account when interpreting a treaty.

In many cases, the ‘fit’ between the two norms will be far from perfect. This will usually, but not always, require one of the norms to be ‘read down’ from what its ordinary meaning would initially suggest, or from how it is ordinarily applied, so as to accommodate the other. For example, I would argue that Security Council Resolutions that purport to limit certain human rights have to do so in clear and unambiguous terms.45 But it is not always other norms of international law that need to be read down to accommodate the growing demands of human rights. In Al-Adsani,46 for instance, the European Court held by nine votes to eight that Article 6 ECHR should be read consistently with international rules on state immunity, even in cases of alleged torture.47 I would again emphasize the point that there is a price to be paid if the IHL/IHRL project is to work. A large part of human rights law as interpreted in peacetime will have to be read down, to a greater or lesser extent, in order to be effectively applied in wartime and so be realistic rather than utopian. To again take arbitrary deprivations of life as an example, we cannot reasonably judge in the same way situations in which the state has a peacetime monopoly on the use of force and must plan police operations so as to absolutely minimize any possible loss of life and combat situations where a state is embroiled in internal or international armed conflict.

This brings me to creative avoidance, which, to put it bluntly, involves a court simply making things up. Such creativity can be employed for good ends or bad, in ways which are legally and logically acceptable or not. One example is the Bosphorus line of cases before the European Court, in which the Court held that the transfer by states of competencies to international organizations that would be immune from judicial process both internally and before the (p.107) Court itself would not be a violation of the ECHR so long as the organization in question provided an equivalent level of protection of human rights.48 This was, in effect, a reading down of the ECHR for the sake of enhanced international cooperation through various international organizations, above all the EU. Opinions can differ on whether the Court's approach was justified (I think it was), but indisputably it was entirely made up, as the equivalent protection doctrine flowed neither from any provision of the ECHR nor from any general principle of international law.49

Another, much less palatable, example would be the Behrami case.50 There the European Court simply invented an attribution rule whereby acts of peacekeepers on UN Security Council-authorized missions were attributable solely to the UN even if particular states, rather than the UN, had operational command and control. The Court did so, contrary to practically unanimous authority, at least partly in order to avoid an apparent norm conflict between Resolution 1244 (1999), whose vague provisions the states concerned interpreted as authorizing preventive detention without judicial review, and Article 5 ECHR, with Article 103 of the Charter and the approach of English courts in Al-Jedda looming in the background.51 In that regard, perhaps the ultimate form of creative avoidance was employed by the European Court of Justice in Kadi, where it asserted that the EU legal system was independent of international law, and that UN Security Council Resolutions on terrorist sanctions are unable to penetrate this independent system and could thus not prevail over EU fundamental rights guarantees by virtue of Article 103 of the Charter.52

Finally, there is what I term forced avoidance, ie situations where a court is faced with a result that it deems undesirable (for example, a conflict with a jus cogens norm, or an unresolvable norm conflict), yet which it cannot avoid through normal means because the text of the relevant provisions simply cannot allow it under any reasonable interpretation. A court then might resort not just to innovation, but to a wholesale rewriting of a particular provision or rule. By and large, such methods are illegitimate, or at the very least improper.53 To paraphrase Lord Bingham's view of such practices in the context of the Human Rights Act 1998, they do not constitute ‘judicial interpretation, but judicial vandalism’.54 Examples will follow. (p.108)

D. Unresolvable norm conflicts

Though the international and domestic legal systems have in common both an inbuilt imperative for norm conflict avoidance and many techniques of conflict avoidance, there is a point where the similarities end. In domestic systems, all norm conflicts must eventually be either avoided or resolved, since all forms of legislation at whatever level of governance ultimately fit within a single normative hierarchy. In the international system the avenues of norm conflict resolution are, as we have seen, at best rudimentary. It therefore knows conflicts which are both unavoidable and unresolvable.55 A more appropriate domestic analogy, if one is needed, would be with private, rather than with public law. Just as I can conclude two equally valid contracts whereby I commit to sell the same thing to two different people, and then have to face a choice as to which obligation to fulfil and which to breach and hence suffer the consequences, so a state can enter into two mutually contradictory, yet equally valid commitments from which the only escape is a political one. It can do so, moreover, not just bilaterally, but through multi-lateral law-making treaties.

Take, for example, the Matthews case before the European Court, dealing with the elections in Gibraltar for the European Parliament.56 On the one hand, the ECHR, as interpreted and applied by the European Court, qualified the European Parliament as a legislature in respect of which states had to organize free elections. On the other, a treaty concluded between EU members prohibited the UK from extending the franchise for the European Parliament to Gibraltar. The Court thus found the UK responsible for violating the ECHR, irrespective of its other treaty obligations. This did not mean, however, that the treaty prohibiting the extension of the franchise to the inhabitants of Gibraltar was invalid, or that the ECHR prevailed over it in some hierarchical sense. Both treaties were formally of equal stature, and no norm conflict resolution was possible; the UK could not fulfil its obligations under either treaty without violating the other, thereby incurring state responsibility. Only a political solution was possible for this norm conflict, based on a political preference for the ECHR among the other EU member states, and an eventual extension of the franchise.57

Or take an even better known case, Soering.58 There the European Court interpreted Article 3 ECHR as setting out a non-refoulement obligation, prohibiting the UK from transferring a person to the US if a real risk of that person being subjected to inhuman or degrading treatment in the US was established. At the other end was a perfectly valid extradition treaty between the UK and the US, which obliged the UK to extradite Soering, and which specified no exception to that obligation such as that devised by the European Court. There was, in other (p.109) words, a norm conflict between the ECHR and the UK/US extradition treaty, and that was that. Now, one could argue, for instance, that the non-refoulement obligation invented by the Court in Soering had the status of jus cogens, and that it thus invalidated the conflicting extradition treaty—but this would be quite a stretch, to put it mildly.59 Or, one could forcibly ‘read in’ an exception into the UK/US treaty, even though there was no such exception—but such a judicial rewriting of a treaty would in my view almost invariably be illegitimate. In reality what we had in Soering was an unresolvable norm conflict. The political solution to this conflict was that the US did not press the issue, and that it reached an accommodation with European states generally whereby it would provide assurances that a person whose extradition was being sought would not be tried for a capital offence.

I must emphasize at this point that the fact that the norm conflicts in Matthews and Soering were unresolvable does not mean that the two cases were unresolvable. In both cases the Court was asked the only question that it had the jurisdiction to answer—whether the ECHR was violated. In both cases it responded affirmatively. In both cases another treaty would have been violated had the state fulfilled its ECHR obligations, but in both cases this simply did not matter for answering the question that was put before the Court, as all avenues of norm conflict avoidance and resolution were exhausted. The only way that the Court could have avoided the norm conflict in Soering, for instance, was by ruling that there was no non-refoulement obligation arising under Article 3 ECHR, or by giving this obligation a rather pathetic content. And, of course, in its interpretation of the ECHR the Court made a variety of legal, policy, and value choices that rendered such a course undesirable, if not impossible. This shows that avoidance of norm conflict is not some sort of absolute priority, but is a value like any other, which will sometimes prevail, and sometimes not.

To bring this discussion of unresolvable norm conflicts a bit closer to home and the relationship between IHL and IHRL, I will now turn to Al-Saadoon, a case that ran its course through English courts at a most hectic pace,60 and is at the time of writing pending before the European Court. The applicants in that case were individuals detained by UK troops in Iraq. They were initially held as security detainees on the basis of Resolution 1546. While they were detained on this basis, the Article 5 ECHR prohibition on preventive detention could be deemed to have been overridden by virtue of Article 103 of the Charter, per Al-Jedda.61 But, at one point the legal basis for the applicants’ detention changed. They were no longer held as security detainees, but were charged with specific crimes by the (p.110) Iraqi judiciary.62 Their detention by British forces continued, but at this point with the consent and at the behest of the Iraqi government, in effect in a sort of pre-trial detention that is in principle permitted by Article 5(1)(c) ECHR.

As the expiry of their UN mandate and the withdrawal of UK forces from Iraq drew nearer, the Iraqi authorities requested the transfer of the applicants to Iraqi custody. The applicants challenged their impending transfer, first before the UK domestic courts and then before the European Court, arguing, inter alia, that there was a serious risk that they would be subjected to the death penalty by hanging if they were transferred to Iraqi custody, and that this triggered the UK's non-refoulement obligations under the ECHR.

To make this argument, the applicants of course first had to establish that the ECHR applied to them extraterritorially. In Al-Skeini 63 the UK government conceded that the ECHR applies to persons detained by UK forces in Iraq.64 It thus had to come up with something new to deny the extraterritorial applicability of the ECHR in Al-Saadoon, and that it did. It argued that the applicants were held by UK forces at the order of an Iraqi court, and that the UK had a legal obligation to abide by the ruling of that court and transfer them to Iraqi authorities since UK forces were present in Iraq with Iraq's consent. Because it had no independent legal authority to detain the Al-Saadoon applicants, so argued the government, they were not within the UK's jurisdiction within the meaning of Article 1 ECHR.

In its decision, the Divisional Court did not accept this argument, ruling that the applicants were indeed within the UK's jurisdiction.65 It held, however, that the ECHR non-refoulement principle had to be qualified (pursuant to a Court of Appeal precedent66 that the Divisional Court thought was wrongly decided, but had to follow anyway), because the UK had a legal obligation to transfer the (p.111) applicant to Iraq.67 On appeal, the Court of Appeal agreed entirely with the government's argument, finding that the ECHR did not apply because the UK had no independent legal authority to detain the applicants.68 The applicants promptly moved to the European Court, and obtained a provisional measures order prohibiting their transfer to Iraqi authorities. And, for the first time in many years, the UK government decided to disobey such an order by the European Court, and transferred the applicants to Iraqi custody.69

Let us now examine Al-Saadoon from a norm conflict perspective. Accepting the UK's argument, it had an obligation to transfer the applicants to Iraq.70 (p.112) Accepting the applicants’ argument, the UK had an ECHR obligation not to do so. In other words, there was a genuine norm conflict à la Soering at hand, and no consistent form of avoidance was available, nor could this norm conflict be resolved on the basis of some hierarchical rule. The Court of Appeal in particular thus had to resort to more imaginative forms of avoidance, ranging somewhere between the ‘creative’ and the ‘forced’ on my tentative scale. It first held that the ECHR simply did not apply extraterritorially, thus nipping the norm conflict in the bud, because the UK held the applicants solely on the basis of Iraqi legal authority and because it had an obligation to transfer them to Iraq. It then held, relying on its earlier precedent in B,71 that even if the ECHR did apply, and if there in principle was an applicable non-refoulement obligation, that obligation had to be qualified, because the applicants were held on Iraqi soil and on Iraqi legal authority.72

The first of the Court's methods of avoidance is entirely unconvincing—there is no principled reason why the applicability of the ECHR should depend on the existence of other international obligations.73 The UK undoubtedly had an obligation to extradite in Soering, but that had no bearing on the applicability of the ECHR. The Court's second method of avoidance is somewhat more credible. It is possible to argue that Soering is distinguishable in that the applicant in that case was held on UK territory, while the applicants in Al-Saadoon were held on Iraqi territory, and that respect for Iraqi sovereignty therefore warrants a more attenuated application of the ECHR. Such an approach remains questionable, however, because of the values that the non-refoulement rule is meant to protect—the prohibition of all kinds of ill-treatment.

It of course remains to be seen how the European Court will view the whole matter. The most recent item in this unfolding drama indeed came from the European Court. In its admissibility decision in Al-Saadoon it quite correctly decided that the Court of Appeal's first method of norm conflict avoidance was inappropriate, and that the ECHR applied extraterritorially to the applicants. However it reserved its judgment on the second method of avoidance for the merits of the case.74

If this second method of avoidance fails to convince, as I think it does, it is clear that in Al-Saadoon the UK brought itself into a situation of unresolvable norm conflict.75 That conflict only had a political solution: the UK could have flatly refused to surrender the applicants to Iraq; it could have tried to negotiate with Iraq and obtain guarantees that the applicants would not be subjected to the death penalty—though Iraq could of course have refused to negotiate; or, it could have disobeyed its ECHR obligations and surrendered the applicants to Iraq. The UK, as we know, chose the third option.76 The fact that most of us, however, might think (p.113) that it should have gone for the second or first options, however, does not mean that this choice was legally warranted. The choice was an entirely political one—but it is one for which the UK has almost certainly incurred state responsibility for violating the ECHR, both in regard to the substance of the non-refoulement claim and in regard to the European Court's interim measures order.

4. Is lex specialis a Rule of Conflict Avoidance or of Conflict Resolution?

Having examined the tools that we have at our disposal for avoiding or resolving norm conflicts, I will now turn to discovering the proper place of lex specialis in the toolbox. That is to say, despite all that has been written on lex specialis and the relationship between IHL and IHRL, the meaning of the maxim remains entirely unclear. In the framework that I have set out above, we are still unsure whether lex specialis is a rule of norm conflict avoidance or a rule of norm conflict resolution, and this has extraordinary consequences for the practical utility of this rule. In my view, lex specialis can only be a tool of conflict avoidance, and not a particularly impressive one at that, as I will now try to explain.

That lex specialis can mean two essentially different things has long been recognized,77 but the importance of this distinction has sometimes been downplayed or overlooked.78 To see how the distinction between avoidance and resolution remains fundamental, we need only look at a familiar IHL/IHRL example—the lawfulness of preventive detention.

IHL either authorizes or considers as lawful at least two forms of preventive detention during international armed conflicts.79 First, under Article 21 of the Geneva Convention III (GC III), prisoners of war may be subjected to internment, ie they may be detained on purely preventive grounds, so that they do not rejoin the hostilities. IHL does not require that the detaining power prove it is necessary to detain POWs—it simply presumes that this is the case, and POWs may be detained until the cessation of active hostilities. Second, under Articles 41–43 and 78 of Geneva Convention IV (GC IV), civilians, like combatants, can also be (p.114) subjected to internment, ‘if the security of the Detaining Power makes it absolutely necessary’. IHL therefore poses a stricter requirement for the internment of civilians than of combatants, as it requires a positive showing of necessity.

When it comes to IHRL, different instruments regulate detention in different ways. Article 9(1) ICCPR provides that:

[e]veryone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

Unlike Article 9(1) ICCPR, which sets out a standard prohibiting arbitrary detention, Article 5(1) ECHR is much more specific:

Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law.

The list that elaborates on the ‘save in the following cases’ clause comprises six possible situations, none of which can be reasonably interpreted to allow for preventive security detention. Article 5 was quite deliberately drafted exhaustively, in order to prevent overly expansive interpretations intrusive on personal liberty of something like the ICCPR arbitrariness standard.

To briefly pose the problem: if somehow, unfathomably, France decided to declare war and invade the UK, would the detention of French POWs on UK soil constitute a violation of Article 5(1) ECHR, in the absence of a UK derogation? Less fancifully, but with the added problem of extraterritoriality, was the detention of thousands of persons by the UK as an occupying power in Iraq after the April 2003 invasion also a violation of Article 5(1), prior to the June 2004 Security Council authorization in Resolution 1546 that could prevail over the ECHR? Indeed, not only is this question not fanciful, but it is one of many that have been raised in Al-Sweady, a case currently pending before the English High Court.80

The answer to this question depends on what we think the nature of the lex specialis rule is. If it was just a rule of norm conflict avoidance, we could interpret the Article 9(1) ICCPR arbitrariness standard taking into account the rules of IHL, and we could say that preventive detention in times of international armed conflict in accordance with IHL was not arbitrary. (This, of course, is precisely what the ICJ did in Nuclear Weapons with regard to the same standard in relation to deprivation of the right to life.) But, if lex specialis was merely a method of avoidance, we would be powerless if the same issue was examined under Article 5(1) ECHR. That provision allows for no ‘window’ through which IHL could enter; no reasonable interpretation of its text that would reach a compatible result is possible. In the absence of a derogation, it is only if the European Court forcibly read Article 5 ECHR as if it set out an arbitrariness standard in the likes of Article 9 ICCPR that conflict avoidance would be possible. However, not only would such rewriting of (p.115) the treaty be judicial vandalism, not interpretation, as Lord Bingham so aptly put it, it would also have nothing to do with lex specialis.

If, on the other hand, lex specalis was not a rule of norm conflict avoidance, but of norm conflict resolution, then and only then could we say that IHL prevails over the ECHR in some quasi-hierarchical sense (presumably because states intended it to do so), and that it precludes the UK's responsibility for failing to abide by the express requirements of Article 5. But there is simply no evidence that lex specialis is in fact a rule of conflict resolution. No treaty says so. It has certainly never been used as such in an IHL/IHRL context, least of all by the ICJ, which only used to interpret general IHRL standards such as arbitrariness in light of IHL.81 Neither the texts of the relevant treaties nor the official positions of states support an inference of a state intent to override the express language of human rights treaties by having regard to the nebulous lex specialis principle,82 which is for that matter, unlike lex posterior, not even mentioned in the VCLT. If anything, the text of the human rights treaties makes it clear that states are supposed to use derogations to avoid conflicts with IHL.83 Moreover, that states have so far not fully complied with their IHRL obligations in armed conflict hardly counts as an inference of such intent, as they do not fully comply with their IHL obligations either. Perhaps in some cases it might be possible to infer an intent by contracting parties to apply the more specific treaty against the express terms of a more general treaty, but this is most certainly not the case with IHL and IHRL.84

More fundamentally, lex specialis as a rule of conflict resolution rests on an unstated assumption—that for any given situation at any given point in time there is one, and there can only be one, expression of state consent or intent as to how that situation is to be regulated.85 But that assumption is manifestly unfounded. As we have seen above, states, like people, are perfectly capable of assuming contradictory commitments. And just as lex specialis is unable to resolve conflicts such as those in Matthews, Soering, or Al-Saadoon, so it is unable to resolve conflicts between IHL and IHRL. In international law lex specialis is nothing more than a sub-species of harmonious interpretation, a method of norm conflict avoidance.86 All it can do is assist in the interpretation of general terms and standards in either IHL or IHRL (p.116) by reference to more specific norms from the other branch. It can hence help us determine whether particular deprivations of life or liberty during an armed conflict are arbitrary or not. It can also work both ways; for instance, the more detailed IHRL norms on fair trial and a developed human rights jurisprudence can help us interpret the more general Common Article 3 requirement for trials satisfying ‘judicial guarantees which are recognized as indispensable by civilized peoples’.87

But it can do no more than that.88 Above all it cannot create hierarchies where they do not exist. And precisely because the use of the term lex specialis to describe the relationship between IHRL and IHL creates a false impression of facility, its use should be avoided.89 The joint application of two bodies of law indeed requires a great deal of avoidance and creativity, involving a host of different legal, policy, and value judgments. To some extent, these judgments will be governed by our impression of which norm is more ‘special’ in regard to the subject matter, parties, level of detail, etc.—but that is only one factor out of many. And it is because lex specialis, like other rules of norm conflict avoidance, must operate within the permissible bounds of interpretation, and may not stray into a disregard for perfectly clear, yet conflicting rules, that in a number of areas the relationship between IHL and IHRL may actually be that of unresolvable norm conflict. I will now turn to an examination of some of these.

5. Areas of Potentially Unresolvable Norm Conflict

A. Preventive detention and judicial review of detention

We have just examined one area of potentially unresolvable norm conflict—detention. Let us further compare three situations of detention, all actual situations occurring in Iraq, and each of them an actual (‘Al-’) court case, either pending or completed: Al-Sweady, Al-Jedda, and Al-Saadoon. In Al-Jedda, a genuine norm conflict between a Security Council authorization and Article 5(1) ECHR was resolved in the former's favour by Article 103 of the Charter. In Al-Saadoon, the Security Council-authorized security detention was transformed into a somewhat unorthodox form of pre-trial detention that is in principle compatible with Article 5(1) ECHR. In Al-Sweady, we have a pure conflict between IHL and IHRL. In regard to the ICCPR, that conflict can be avoided through the harmonious interpretation of the Article 9 ICCPR arbitrariness standard. In regard to Article 5 ECHR, in the absence of a derogation nothing can be done to either avoid or resolve the conflict, short of resorting to illegitimate, forceful means of avoidance. (p.117)

Does the UK's failure to derogate from Article 5 ECHR mean that all the persons it detained as an occupying power in Iraq before the passing of Resolution 1546, or as an occupying power in Afghanistan, were detained unlawfully, IHL notwithstanding? The answer to that question is regrettably a resounding yes as far as the ECHR is concerned. And this is entirely the UK's fault, since it made a conscious political choice not to use the method of avoidance provided for by the ECHR itself, preferring to deny that the ECHR applied at all. There is moreover nothing absurd about such a result, nor does it lead to some sort of non liquet. A court dealing with the matter can answer any of the questions asked of it. Was the detention authorized or at least permitted by IHL? Yes. Was it nonetheless contrary to the ECHR? Again, yes. That the law is in a state of antinomy is simply not the court's problem, after it has weighed up all the options at its disposal to either avoid or resolve that conflict.90

In addition to the grounds of detention, another possible area of unresolvable conflict is that of judicial review of the lawfulness of detention. Here the ICCPR and the ECHR are exactly the same: both of them demand such review, and allow for no exceptions from that rule. Thus, Article 5(4) ECHR provides that:

[e]veryone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

While Article 9(4) ICCPR stipulates that:

[a]nyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

When it comes to IHL, because with respect to POWs it requires no showing of necessity that they be detained, subsequent to a determination of their status under Article 5 of GC III, it also requires no judicial process of reviewing their detention. In respect of interned civilians, for whose preventive detention a necessity must be shown, Article 43(1) of GC IV does require periodic review ‘by an appropriate court or administrative board’.

The IHRL norm that ‘everyone’ or ‘anyone’ must be able to challenge his detention before a court, period, cannot be reconciled, absent a derogation, with the IHL norms that the detention of POWs need not be reviewed at all, while the detention of civilians can be reviewed even by a mere administrative board. The only possible accommodation that IHRL can make for IHL in this respect is to read standards such as ‘speedily’ or ‘without delay’ more loosely in armed (p.118) conflict, but the core of the unambiguously expressed norm cannot just go away. Now, if one takes a more formal or narrow definition of norm conflict, then one could say that there is no conflict here between IHL and IHRL, as nothing prohibited the state from assuming a further set of IHRL obligations that are stricter than its IHL obligations.91 Substantively, however, and above all practically speaking, we are faced with an unresolvable norm conflict, because one branch of the law regards a situation as perfectly lawful, while the other does not.

Moreover, not even a derogation might be able to completely avoid a conflict between IHRL and IHL in respect of detention. Recall that a state may take measures of derogation only ‘to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law’.92 Therefore, even if during an armed conflict a state party derogated from Article 5 ECHR or Article 9 ICCPR to allow for preventive detention without judicial review, in a manner completely consistent with IHL, this would not necessarily suffice to make that derogation stand; the measures taken still need to be ‘strictly required’, as a matter of some sort of objective external assessment.

For example, a derogation restating the blanket IHL position that combatants may always be preventively detained may be challenged, say, if the armed conflict is quite protracted and the burden of detention consequently grows greater, the security risk posed by the POWs is small, and less restrictive means for preventing their return to hostilities than internment are available. Or, in respect of the internment of civilians in occupied territory, a state which derogates from the ICCPR or the ECHR to allow for the review of their detention by mere administrative boards, but is in reality quite capable of creating independent courts that could do the reviewing, ultimately might not be able to rely on its derogation no matter what IHL might say.93

B. Necessity in targeting

The detention example of unresolvable norm conflict is far-reaching enough, but my next example, that of targeting, is no less important. In IHL, the traditional position has been that combatants may be targeted so long as they are not hors de combat,94 and this position holds true with some temporal limitations even for civilians taking a direct part in hostilities.95 In other words, one belligerent party does not need to prove any kind of necessity to kill combatants belonging to the other belligerent party in order to be able to do so law (p.119) fully. ‘Those who belong to armed forces or armed groups may be attacked at any time.’96

When it comes to IHRL, there are significant variations among the relevant treaties when it comes to conditions under which a state may deprive individuals of life. Article 6(1) ICCPR stipulates that ‘[n]o one shall be arbitrarily deprived of his life’, while Article 4(2) thereof prohibits derogations from this prohibition under any circumstances. Article 2 ECHR prohibits any intentional deprivation of life, save ‘when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection’. On the other hand, Article 15(2) does allow derogations from the right to life (only) ‘in respect of deaths resulting from lawful acts of war’, thus opening a window for IHL.

The ICCPR and the ECHR again pose somewhat different interpretative problems. The arbitrariness standard of the ICCPR allows for an easier reconciling with IHL, as the ICJ did in Nuclear Weapons. As for the ECHR, Article 2(2)(c) would govern situations of internal armed conflict, yet any deprivation of life would still have to be ‘absolutely necessary’, while Article 15(2) would apply to situations of international armed conflict.97 But again, even with Article 15(2) in the picture, the derogation still needs to be ‘strictly required by the exigencies of the situation’ under Article 15(1).

This brings me to the potentially unresolvable norm conflict with IHL. Both the ICCPR and the ECHR can easily be interpreted as requiring a showing of necessity before any intentional deprivation of life,98 while, as we have seen, IHL purposefully does not require such a showing in respect of combatants or civilians taking a direct part in hostilities.99 The IHRL necessity standard may be relaxed somewhat to take into account the fact of armed conflict, but it is hard to see how it can be totally extinguished, as IHL warrants, as soon as an armed conflict takes place and solely on the basis of the person's status.

To see this norm conflict at work we need only take a look at the Targeted Killings judgment of the Supreme Court of Israel.100 The Court's prime desire in that case was to give a level of clear guidance to the Israeli armed forces and secret services as to the conditions under which they can target a suspected terrorist.101 One of the (p.120) conditions that it imposed was that a terrorist may not be targeted if the incidental damage caused to nearby civilians is disproportionate to the direct military advantage anticipated by the elimination of the said terrorist.102 This is of course the IHL proportionality principle, whose purpose is to allow the use of lethal force but to minimize the collateral damage arising from its use.103

But the Court imposed a further condition—a terrorist may not be targeted if less harmful means can be employed, ie if he can be captured and put on trial. In the Court's own words, ‘[t]rial is preferable to use of force. A rule-of-law state employs, to the extent possible, procedures of law and not procedures of force.’104 Now, it is not entirely clear whether the Court derived this rule from IHRL or from domestic constitutional law, but it is clear that it was a human rights norm that it was applying.105 It used the kernel of a human rights rule—ie that necessity must be shown for any intentional deprivation of life, to restrict the application of an IHL rule—that in armed conflict no necessity need be shown for the killing of combatants or civilians taking a direct part in hostilities. This does not mean, of course, that when applied to a specific set of facts the legally different IHL and IHRL norms will ultimately produce different results. What it means is that in every case some measure of justification will have to be offered as to why the killing of a particular individual was necessary on the facts of that case, and that this justification cannot be exhausted merely by invoking the person's status under IHL.

The Court's holding was not based on lex specialis or any other form of mechanical reasoning. It made a policy and value judgment that in the context of the prolonged Israeli occupation of Palestinian territories the traditional IHL answer was no longer satisfactory, and it had a legal basis in human rights law to say so.106 When one adversary possesses overwhelming strategic and tactical superiority; in the context of an occupation, especially a prolonged one; during a limited insurgency or non-international armed conflict; in situations, in other words, which lend themselves more easily to non-lethal approaches, the imposition of an IHRL necessity requirement becomes more and more attractive.107 (p.121)

It is questionable, however, whether this necessity requirement could be effectively applied in a more traditional battlefield setting. There is perhaps no other area of potential conflict where the infusion of IHRL with IHL could lead to a greater slide into utopia, and a consequent slide into irrelevance. It might be better to have some rules which are effective than rules which satisfy our moral intuitions but are honoured only in their breach. If the IHRL necessity requirement is to be applied at all in such situations, contra IHL, it will in any event have to be read down significantly to be effective, flexible, and practicable.108 But again, even if IHRL is read down so far that it would never consider as arbitrary a killing of a combatant who is not hors de combat, per IHL, this would not be because of the lex specialis principle, but because of a policy judgment that IHRL has to be (forcibly) read down far enough to be effective.

C. (Transformative) occupation

My final example of potentially unresolvable conflict between IHRL and IHL will be that of occupation. Suppose that the UK becomes the belligerent occupant of a territory that has Sharia as part of its domestic law, for instance Iran. The Penal Code of Iran prescribes stoning as a punishment for adultery, and even has a stunning provision which stipulates that ‘[t]he size of the stone used in stoning shall not be too large to kill the convict by one or two throws and at the same time shall not be too small to be called a stone’.109 Since the UK is in effective overall control and thus possesses jurisdiction over a part of Iranian territory, the ICCPR and ECHR are applicable.110 Both treaties require the UK to ensure or secure the human rights of all individuals within its jurisdiction, even against violations by other actors. A punishment of stoning for adultery undoubtedly qualifies at the very least as inhuman treatment under either of these treaties.

As for IHL, Article 43 of the Hague Regulations provides that ‘[t]he authority of the legitimate power having in fact passed into the hands of the occupant, the (p.122) latter shall take all the measures in his 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’. Article 64 of GC IV is even more pertinent for our example, stipulating that ‘[t]he penal laws of the occupied territory shall remain in force, with the exception that they may be repealed or suspended by the occupying power in cases where they constitute a threat to its security or an obstacle to the application of the present Convention’.

The example that I have given is at least that of an apparent norm conflict. On the one hand, IHRL commands the UK to take all possible measures to prevent the stoning of adulterers in the territory that it has occupied. On the other hand, because it considers occupation to be a temporary situation which requires deference to the displaced sovereign, IHL prohibits the UK from changing the laws of the occupied country, particularly its penal laws.111 Can these two contradictory obligations somehow be reconciled?112

To do that, we would either have to read down the IHL obligation, or the IHRL obligation. When it comes to IHL, Article 43 of the Hague Regulations is a somewhat easier target—it prohibits the occupant from altering the domestic law of the occupied territory unless it is ‘absolutely prevented’ from doing so. We can therefore say that the UK's IHRL obligation to put a stop to any inhuman treatment does, in fact, ‘absolutely prevent’ it from respecting Iran's domestic law.113 Article 64 of GC IV is less malleable—the domestic penal law must be kept in force, with only two possible exceptions. Does maintaining stoning for adultery constitute a threat to the security of the UK, the occupying power? Hardly. Is it an obstacle to the application of the Convention itself? Well, no, not really. There is no other obligation of the UK derived from the Convention that it could not fulfil while allowing the courts of the ancien régime to go about their brutal business. In reality, therefore, Article 64 can only be read down forcibly, if it is in effect rewritten to accommodate a change in domestic laws which are incompatible with the occupant's IHRL obligations.

If IHL cannot consistently and reasonably be read down to accommodate IHRL, how about IHRL? We could say something like this: the UK's positive obligation to secure or ensure respect for human rights in occupied territories even by non-state actors is one of due diligence. It requires the state only to do all that it reasonably can to prevent violations.114 Because in this particular instance doing so would require the UK to violate some of its other obligations under international law, the UK's positive obligation should be read as not requiring the UK to do so.

This is a textually and conceptually perfectly reasonable reading down of IHRL. But recall what I have said above—though a price must be paid if IHRL is to (p.123) be applied jointly with IHL, that price must not be too steep. I personally—and I suspect most other international lawyers—would never read down IHRL to accommodate stoning for adultery, even if as a technical matter it may be perfectly appropriate to do so.

This, however, is simply because of a policy and value judgment that I have made on the issue, because I care more about human rights than about consistency in international law in this particular instance. It is the values enshrined in the IHRL treaties that would make their reading down forced and inappropriate. Legally, then, there is an unresolvable norm conflict, with no norm having priority over the other. The UK would have a political choice to make as to which obligation to keep, and which to breach, and that is that. Yes, we would all like it to choose the ICCPR and the ECHR over GC IV in this particular instance, particularly because it is likely that it would not suffer many ill consequences for its breach of the latter, but we would do so because of our own value judgment and a political calculation that this is how things should be, not because the law warrants this choice.

This example is particularly instructive because of how potentially far-reaching it could be. First, unlike the previous examples of targeting and detention, it does not deal merely with a state's negative obligations towards individuals, whose rights it must not violate through the actions of its own organs or agents, but with its positive obligation to secure or ensure respect for human rights even by other actors. Second, in my previous examples a state would not incur any responsibility for having to abide by a stricter IHRL standard as opposed to a looser IHL standard, though as a practical matter its liberty to act might be significantly curtailed. In this example, however, conflicting IHRL and IHL obligations meet head on, and one cannot be fulfilled without violating the other. Finally, the example again demonstrates the distinction between interpretation and legislation, and the need to maintain it. As a matter of policy, we do not want to entirely abandon the rule that the occupant must not alter the legal system of the occupied territory—by and large, this is a good rule115—we just want to carve out a human rights exception to that rule. Absent a legislative change, however, this can probably be done only by either violating or doing violence to GC IV.

6. Conclusion

Improved enforcement and further humanization of IHL through the application of IHRL is the ultimate goal of this entire project—to bring states that created these treaties to the logical, legal, and moral conclusions that are mandated by their texts, but even more so by their fundamental normative underpinnings, and the values that inspire them. As we have seen, to have any hope of advancing this goal we must be practical and be prepared to apply IHRL standards in a more (p.124) flexible fashion. Yet we also need to drop the pretence, inspired by a false analogy with domestic public law, that states have in their infinite wisdom created two legal regimes which mesh together perfectly. They simply do not, either in the texts of the treaties, or in the values and policy considerations behind them.116 Frequently, their relationship is that of conflict.

To address these norm conflicts, we have a variety of tools at our disposal. The most helpful are those of norm conflict avoidance, which are interpretative in nature. Among these tools, but not among the most useful, is lex specialis. To again take preventive detention as an example, if faced with a pure IHL/IHRL case arising from Iraq, such as Al-Sweady, the European Court might in the end forcibly read down Article 5 ECHR as if setting an arbitrariness standard that could accommodate IHL like Article 9 ICCPR. However, this would not be as a consequence of the lex specialis principle, but rather because it weighed the competing policy considerations so as to warrant such a result even in the absence of a derogation.117 As is so often the case with legalese Latin, lex specialis is descriptively misleading, vague in meaning, and of little practical use in application. It should be discarded as a general matter, and it should especially not be used to describe the relationship between IHL and IHRL as a whole.118

More often than not, IHL treaties and human rights treaties can be reconciled and interpreted harmoniously. But there will be instances—there are instances—where this quest for harmony will fail, when the two bodies of law cannot be reconciled, when all legitimate methods of norm conflict avoidance and resolution will be exhausted, and when ultimately a political choice will have to be made as to which of the conflicting norms should be given priority over the other.

That choice can rarely, if ever, be made by a court—sometimes it is only the legislator who produced the antinomy who can provide the remedy for it. The more forced the methods of avoidance, the less legitimate they are; the line between interpretation and legislation may often be a fine one, but it is nonetheless still there.119 And when all methods of norm conflict avoidance and resolution fail, there is nothing shameful in admitting defeat and saying that in this or that particular instance IHL and IHRL cannot be reconciled. Just as a UK court can, after giving its best, ultimately say that a particular Act of Parliament is incompatible with the Human Rights Act, so can it say, in Al-Sweady for instance, that the internment of POWs and civilians during the occupation of Iraq was lawful under IHL, but unlawful under the ECHR.120

It is, of course, not an easy thing for a court to say, nor should it be. No wonder then that courts rarely, if ever, openly acknowledge the possibility of unresolvable conflict. To take Al-Skeini as the prime example, it is often far easier for courts to deny that IHRL applies at all, based on entirely arbitrary criteria (viz that the ECHR applies to a person killed in the custody of UK troops in Basra, but not to (p.125) persons killed by UK troops on patrol121), and switch IHRL on when it becomes morally intolerable not to do so, and off when it becomes impracticable, rather than address hotly disputed substantive issues which may expose unresolvable norm conflicts. However, norm conflicts are in themselves not so undesirable that they must be avoided or resolved at any cost. They are immanent to the international legal system, due to its decentralized, non-hierarchical nature, and the consensual character of its law-making processes.122 They occur as much in peacetime as in wartime, intra-territorially as extra-territorially—for instance, in Soering and Matthews. Indeed, exposing an unresolvable norm conflict may ultimately prove to be more productive then forcibly avoiding it, as nothing will give a better incentive to states to improve the normative framework within which we must operate. And, of course, a good place for states to start would be for them to use mechanisms which are already in place, such as derogations. (p.126)

Notes:

(*) I would like to thank Dapo Akande, Ken Anderson, David Feldman, Charles Garraway, Francesco Messineo, Jelena Pejic, and Tobias Thienel for their helpful comments. Email: marko.milanovic@gmail.com. An earlier version of this chapter was published in 14 Journal of Conflict & Security Law (2009).

(1) Meron, ‘The Humanization of Humanitarian Law’, 94 AJIL (2000) 243

(2) Verdirame, ‘Human Rights in Wartime: A Framework for Analysis’, EHRLR (2008) 689, at 691

(3) A most effective example is the extensive litigation in UK domestic courts under the Human Rights Act 1998 arising from the occupation of Iraq, several cases of which will be referred to throughout this chapter.

(4) See the derogation clauses in the major human rights treaties, two of which explicitly mention ‘war’ as a situation in which derogations might be appropriate—Art 4, International Covenant on Civil and Political Rights, 99 UNTS 171 (ICCPR); Art 15, European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 222 (ECHR); and Art 27, American Convention on Human Rights, 1144 UNTS 123 (ACHR). See also Art 72 of Additional Protocol I to the Geneva Conventions (AP I), which refers to ‘other applicable rules of international law relating to the protection of fundamental human rights during international armed conflict’, as well as the second preambular paragraph of Additional Protocol II (AP II), stating that ‘international instruments relating to human rights offer a basic protection to the human person’.

(5) Droege, ‘Elective Affinities? Human Rights and Humanitarian Law’, 90 International Review of the Red Cross (2008) 501, at 503 et seq

(6) Bankovic and Others v Belgium and Others (2001) 11 BHRC 435

(7) On Bankovic and the extraterritorial application of human rights treaties generally, see the contributions in Coomans and Kamminga (eds), Extraterritorial Application of Human Rights Treaties (2004); Milanovic, ‘From Compromise to Principle: Clarifying the Concept of State Jurisdiction in Human Rights Treaties’, 8 HRL Rev. (2008) 411; Ben-Naftali and Shany, ‘Living in Denial: The Application of Human Rights in the Occupied Territories’, 37 Is. L.R. (2003–04) 17.

(8) Schabas, ‘Lex Specialis? Belts and Suspenders? The Parallel Operation of Human Rights Law and the Law of Armed Conflict, and the Conundrum of Jus ad Bellum’, 40 Is. LR (2007) 592jus ad bellum

(9) A further risk is that injecting human rights discourse into warfare would actually serve to legitimize war as a phenomenon—see Verdirame, supra note 2, at 692.

(10) This fear, whether entirely conscious or not, that human rights might be compromised by giving too much way to effectiveness and to the realities of armed conflict might provide at least a partial explanation for the European Court's reluctance so far to explicitly take IHL into account in its cases on Chechnya, together with related fears regarding institutional incompetence. See also Abresch, ‘A Human Rights Law of Internal Armed Conflict: The European Court of Human Rights in Chechnya’, 16 EJIL (2005) 741. For an overview of the Chechen cases, see Leach, ‘The Chechen Conflict: Analysing the Oversight of the European Court of Human Rights’, (2008) EHRLR 732.

(11) Cassimatis, ‘International Humanitarian Law, International Human Rights Law, and the Fragmentation of International Law’, 56 ICLQ (2007) 623

(12) Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports (1996) 226, para 25.

(13) Doswald-Beck, ‘International humanitarian law and the Advisory Opinion of the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons’, 37 International Review of the Red Cross (1997) 35

(14) Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, ICJ Reports (2004) 136, para 106.

(15) Krieger, ‘A Conflict of Norms: The Relationship between Humanitarian Law and Human Rights Law in the ICRC Customary Law Study’, 11 JC & SL (2006) 265, at 269

(16) Case Concerning Armed Activities on the Territory of the Congo (DRC v Uganda), Judgment of 19 December 2005, para 216.

(17) Human Rights Committee, General Comment No 31, CCPR/C/21/Rev.1/Add.13 (26 May 2004) para 11.

(18) See Krieger, supra note 15, at 271.

(19) Hampson, ‘The Relationship between International Humanitarian Law and Human Rights Law from the Perspective of a Treaty Body’, 90 International Review of the Red Cross (2008) 549, at 550et seq

(20) Alston, Morgan-Foster, and Abresch, ‘The Competence of the UN Human Rights Council and its Special Procedures in relation to Armed Conflicts: Extraterritorial Executions in the “War on Terror” ’, 19 EJIL (2008) 183

(21) See eg Tehran Conference, General Resolution XXIII, ‘Respect for Human Rights in Armed Conflicts’, UN Doc A/Conf.32/41 (13 May 1968); UNGA Res 2444 (1968); UNGA Res 2647 (1970); UNSC Res 237 (1967), UNSC Res 1649 (2005), UNSC Res 1882 (2009).

(22) See eg Nuclear Weapons, supra note 12; Wall, supra note 14; Serrano-Cruz Sisters v El Salvador (Preliminary Objections), 23 November 2004, Inter-Am Ct HR Series C, No 118, para 112.

(23) McGoldrick, ‘Human Rights and Humanitarian Law in the UK Courts’, 40 Is. L.R. (2007) 527, at 531

(24) See also Ben-Naftali and Shany, supra note 7, at 41–42; Verdirame, supra note 2, at 691–692.

(25) Milanovic, ‘Norm Conflict in International Law: Whither Human Rights?’, 20 Duke J. Comp. & Int'l L. (2009) 69http://ssrn.com/abstract=1372423

(26) Pauwelyn, Conflict of Norms in Public International Law (2003) 176.

(27) See Pauwelyn, supra note 26, at 272.

(28) See more generally Milanovic, supra note 25, at 6 et seq.

(29) See also Pauwelyn, supra note 26, at 418 et seq.

(30) See International Law Commission, ‘Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law’, UN Doc A/CN.4/L.682 (13 April 2006), hereinafter ‘ILC Study’, para 79 et seq. See also Verdross, ‘Jus Dispositivum and Jus Cogens in International Law’, 60 AJIL (1966) 55, at 58.

(31) This of course does not stop judges from injecting liberal references to jus cogens, peremptory or intransgressible norms or whatnot in a number of judgments. I am not saying that this is a bad thing—far from it, symbolically at least—but that does not mean that jus cogens as a concept has an actual, practical role in the result of the case.

(32) Higgins, ‘A Babel of Judicial Voices? Ruminations from the Bench’, 55 ICLQ (2006) 791, at 801

(33) See also Art 64 VCLT.

(34) See Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie, Provisional Measures, Order of 14 April 1992, ICJ Reports (1992) 114, at 126, para. 42.

(35) R (Al-Jedda) v Secretary of State for Defence [2007] UKHL 58Al-Jedda

(36) See Al-Jedda (per Lord Bingham) para 39. See also Al-Jedda (per Baroness Hale) paras 126 and 129, and Al-Jedda (per Lord Carswell) para 136.

(37) Indeed, Art 103 of the Charter is in effect a special, proto-constitutional type of prospective conflict clause.

(38) See eg Arts 237(1) and 311 of the UN Convention on the Law of the Sea. On conflict clauses in treaties, see generally Borgen, ‘Resolving Treaty Conflicts’, 37 Geo Wash Int'l L Rev (2005) 573, 584–587; ILC Study, paras 267–271.

(39) See supra note 4.

(40) See also McGoldrick, supra note 23, at 555–556.

(41) Some doubts have been expressed as to whether derogations would be available in an extraterritorial context where the ‘life of the nation’ using the derogation is not itself threatened, for instance by Lord Bingham in Al-Jedda. I consider that they would be, but I will not further examine that point here.

(42) ‘There is no single legislative will behind international law. Treaties and custom come about as a result of conflicting motives and objectives—they are “bargains” and “package-deals” and often result from spontaneous reactions to events in the environment.’ ILC Study, para 34.

(43) See Arts 30 and 59 VCLT.

(44) To give two domestic law examples, consider the constitutional avoidance canon in US constitutional law, whereby a statute will be interpreted so far as possible to not pose a constitutional question or conflict, thus potentially leading to its unconstitutionalitysee eg INS v St Cyr, 533 US 289, 299–300 (2001); Crowell v Benson, 285 US 22, 62 (1932); or section 3(1) of the UK Human Rights Act 1998, mandating that ‘[s]o far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with [ECHR] rights’.

(45) See Milanovic, supra note 25, at 37 et seq.

(46) Al-Adsani v United Kingdom, ECtHR, App No 35763/97, 21 November 2001.

(47) Jones v Ministry of Interior Al-Mamlaka Al-Arabiya AS Saudiya (the Kingdom of Saudi Arabia) [2006] UKHL 26

(48) M & Co v Federal Republic of Germany, App No 13258/77, 64 ECommHR Dec & Rep 138 (1990); Waite and Kennedy v Germany, App No 26083/94, 30 ECtHR 261 (1999); Beer and Regan v Germany, App No 28934/95, ECtHR (1999); Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v Ireland, App No 45036/98, 2005-VII ECtHR 109, 42 EHRR 1.

(49) See more generally, supra note 25, at 54 et seq.

(50) Behrami and Behrami v France, Saramati v France, Germany and Norway, App Nos 71412/01 and 78166/01, Grand Chamber, Decision, 2 May 2007.

(51) Milanovic and Papic, ‘As Bad as it Gets: The European Court of Human Rights’ Behrami and Saramati Decision and General International Law’, 58 (2009) ICLQ 267

(52) Joined Cases C-402/05 P and C-415/05 P, Kadi & Al Barakaat International Foundation v Council and Commission, Judgment of 3 September 2008.

(53) See Pauwelyn, supra note 26, at 244 et seq.

(54) R (Anderson) v Secretary of State for the Home Department [2002] UKHL 46

(55) But see Droege, supra note 4, at 524, (arguing that in cases of genuine norm conflict, one of the norms must prevail). With respect, there is no ‘must’ here. That it is desirable to resolve conflicts is certainly true—but it is by no means possible in all circumstances.

(56) Matthews v United Kingdom, App No 24833/94, 28 ECtHR 361 (1999)

(57) For a fuller account of Matthews, see Milanovic, supra note 25.

(58) Soering v United Kingdom, 161 ECtHR (Ser A) (1989)

(59) That the prohibition of torture is jus cogens does not automatically entail that the prohibition of other forms of ill-treatment is also jus cogens. Even if it is, this would not automatically entail that the derived non-refoulement obligation would also have such status. Likewise, that all of these norms are absolute—which they are—does not mean that they all necessarily must be jus cogens, since peremptory norms must be ‘accepted and recognized [as such] by the international community of States as a whole’ (Art 53 VCLT).

(60) R (Al-Saadoon and Mufdhi) v Secretary of State for Defence [2009] EWCA Civ 7, (hereinafter Al-Saadoon CA); R (Al-Saadoon and Mufdhi) v Secretary of State for Defence [2008] EWHC 3098 (hereinafter Al-Saadoon HC).

(61) Al-Jedda, supra note 35.

(62) Al-Saadoon HC, supra note 60, at paras 24–31.

(63) R (Al-Skeini and Others) v Secretary of State for Defence [2007] UKHL 26, [2007] 3 WLR 33, [2007] 3 All ER 685, (hereinafter Al-Skeini HL); R (Al-Skeini and Others) v Secretary of State for Defence [2005] EWCA Civ 1609, [2007] QB 140, (hereinafter Al-Skeini CA).

(64) Al-SkeiniAJILThienel, ‘The ECHR in Iraq. The Judgment of the House of Lords in R (Al-Skeini) v Secretary of State for Defence’, 6 JICJ (2008) 115

(65) Al-Saadoon HC, supra note 60, at paras 82.

(66) R (B) v Secretary of State for Foreign and Commonwealth Affairs [2004] EWCA Civ 1344BSoeringnon-refoulementSoeringB,

In a case such as Soering the Contracting State commits no breach of international law by permitting an individual to remain within its territorial jurisdiction rather than removing him to another State. The same is not necessarily true where a State permits an individual to remain within the shelter of consular premises rather than requiring him to leave. It does not seem to us that the Convention can require States to give refuge to fugitives within consular premises if to do so would violate international law. So to hold would be in fundamental conflict with the importance that the Grand Chamber attached in Bankovic to principles of international law. Furthermore, there must be an implication that obligations under a Convention are to be interpreted, insofar as possible, in a manner that accords with international law.

B

We have concluded that, if the Soering approach is to be applied to diplomatic asylum, the duty to provide refuge can only arise under the Convention where this is compatible with public international law. Where a fugitive is facing the risk of death or injury as the result of lawless disorder, no breach of international law will be occasioned by affording him refuge. Where, however, the receiving State requests that the fugitive be handed over the situation is very different. The basic principle is that the authorities of the receiving State can require surrender of a fugitive in respect of whom they wish to exercise the authority that arises from their territorial jurisdiction; see Art 55 of the 1963 Vienna Convention. Where such a request is made the Convention cannot normally require the diplomatic authorities of the sending State to permit the fugitive to remain within the diplomatic premises in defiance of the receiving State. Should it be clear, however, that the receiving State intends to subject the fugitive to treatment so harsh as to constitute a crime against humanity, international law must surely permit the officials of the sending state to do all that is reasonably possible, including allowing the fugitive to take refuge in the diplomatic premises, in order to protect him against such treatment. In such circumstances the Convention may well impose a duty on a Contracting State to afford diplomatic asylum.

It may be that there is a lesser level of threatened harm that will justify the assertion of an entitlement under international law to grant diplomatic asylum. This is an area where the law is ill-defined. So far as Australian law was concerned, the applicants had escaped from lawful detention under the provisions of the Migration Act 1958. On the face of it international law entitled the Australian authorities to demand their return. We do not consider that the United Kingdom officials could be required by the Convention and the Human Rights Act to decline to hand over the applicants unless this was clearly necessary in order to protect them from the immediate likelihood of experiencing serious injury.

The Court of Appeal in B was faced with an apparent norm conflict, and decided to forcibly avoid it by reading down the non-refoulement obligation under Art 3 ECHR. The problem with its reasoning is of course that there was in fact a norm conflict in Soering between the ECHR and a valid extradition treaty, yet this was not enough for the European Court to read down the ECHR, thus leading to an unresolvable norm conflict. Not to mention that the Court of Appeal's actual reading down is as absurd as it is forced, since crimes against humanity can never be committed against individuals in isolation, but only in the context of a widespread or systematic attack on a civilian population—see, eg Art 7 of the Rome Statute of the International Criminal Court. This condition would hardly be satisfied even in places like Iraq or Iran, let alone in Australia.

(67) Al-Saadoon HC, supra note 60, at paras 89–96.

(68) Al-Saadoon CA, supra note 60, at paras 32–40.

(69) See Thienel, ‘Cooperation in Iraq and the ECHR: An Awful Epilogue’, Invisible College blog, 21 January 2009, available at 〈http://invisiblecollege.weblog.leidenuniv.nl/2009/01/21/cooperation-in-iraq-and-the-echr-an-awfu〉 [last accessed 12 April 2010]

(70) This obligation would derive from the customary obligation of all states not to interfere with the sovereignty and jurisdiction of other states—see, mutatis mutandis, Asylum (Colombia v Peru), ICJ Reports (1950) 275.

(71) B, supra note 66.

(72) Al-Saadoon CA, supra note 60, paras 41–51.

(73) I have argued at length elsewhere why the concept of Art 1 jurisdiction is not predicated on legal authority, but on factual authority and control over territory and (possibly) individuals—see Milanovic, supra note 7.

(74) Al-Saadoon and Mufdhi v United Kingdom (dec), App No 61498/08, 30 June 2009.

(75) Cross and Williams, ‘Between the Devil and the Deep Blue Sea: Conflicted Thinking in the Al-Saadoon Affair’, 58 ICLQ (2009) 689

(76) The norm conflict has been openly acknowledged by the UK government—see Letter dated 26 January 2008 from the Minister of State for the Armed Forced to the Chairman of the Joint Committee for Human Rights, available at 〈http://www.parliament.uk/documents/upload/Ainsworth_Saadoon260109.pdf〉. Relying on the Court of Appeal's ruling that the applicants were not within the UK's jurisdiction, and having regard of the expiry of the UK forces’ mandate on 31 December 2008, the letter states, inter alia, that the government was ‘faced with the option of breaching the Rule 39 measure or acting unlawfully in international law.’ Of course, the former was no less a violation of international law, particularly in the light of the European Court's decision that the applicants were at all times within the UK's jurisdiction.

(77) See eg Lindroos, ‘Addressing Norm Conflicts in a Fragmented Legal System: The Doctrine of Lex Specialis’, 74 Nord. J. Int'l L. (2005) 27, esp at 46; Prud'homme, ‘Lex Specialis: Oversimplifying a More Complex and Multifaceted Relationship?’, 40 Is. L.R. (2007) 355, at 366 et seq; Droege, supra note 5, at 523–524; Krieger, supra note 15, at 268–270.; ILC Study, paras 56–57, and the authorities cited therein.

(78) See ILC Study, supra note 77, paras 88–97.

(79) J Pejic, ‘Procedural Principles and Safeguards for Internment/Administrative Detention in Armed Conflict and Other Situations of Violence’, 87 International Review of the Red Cross (2005) 375

(80) See more at 〈http://www.publicinterestlawyers.co.uk/cases/cases.php?id=67〉 [last accessed 12 April 2010].

(81) Perhaps the closest to doing so was the Inter-American Commission on Human Rights, which was overruled on that point by the Inter-American Court. See further McCarthy, ‘Human Rights and the Laws of War under the American Convention on Human Rights’, EHRLR (2008) 762, esp at 767 et seq.

(82) See also ILC Study, para 104, where the ILC considered that lex specialis in the context of the Nuclear Weapons case only affected the assessment of the Art 6 ICCPR arbitrariness standard. The ILC does not consider a scenario where no such malleable standard was available.

(83) See Wall, supra note 14.

(84) But see Krieger, supra note 15, at 272; Droege, supra note 5, at 524.

(85) See Pauwelyn, supra note 26, at 388.

(86) Akehurst, ‘The Hierarchy of the Sources of International Law’, 47 British Year Book of International Law (1974–75) 273lex specialislex specialissupraet seqAl-Saadoon

(87) This is in effect what the US Supreme Court did in Hamdan v Rumsfeld, 548 US 557 (2006) note 66. See further Milanovic, ‘Lessons for Human Rights and Humanitarian Law in the War on Terror: Comparing Hamdan and the Israeli Targeted Killings Case’, 89 International Review of the Red Cross (2007) 373, 389 et seq. See also Krieger, supra note 15, at 274.

(88) Thienel, ‘The Georgian Conflict, Racial Discrimination and the ICJ: The Order on Provisional Measures of 15 October 2008’, 9 HRL Rev. (2009) 465, at 467–469

(89) Similarly on the ineffectiveness and conceptual vagueness of lex specialis, see Prud'homme, supra note 77.

(90) This is in fact precisely what happened in one of the interstate cases initiated by Cyprus against Turkey before the now defunct European Commission on Human Rights, in which a majority of the Commission held that the preventive detention of POWs by Turkey violated Art 5 ECHR in the absence of a derogation—see Cyprus v Turkey, App Nos 6780/74 and 6950/75, Report of the Commission, adopted on 10 July 1976. Françoise Hampson finds such a result to be absurd, apparently on policy grounds—see Hampson, supra note 19, at 565–566. Legally speaking, however, though it might be quite undesirable to have an unresolvable norm conflict, there is nothing absurd about it, particularly when Turkey could have used a derogation to avoid it.

(91) See Cassimatis, supra note 11, at 633.

(92) See Art 15 ECHR, Art 4 ICCPR.

(93) See Human Rights Committee, General Comment No 29, CCPR/C/21/Rev.1/Add.11, para 16, where the Committee asserts, perhaps too broadly, that states may never derogate from the requirement for judicial review of detention.

(94) The Conduct of Hostilities under the Law of International Armed ConflictLubell, ‘Challenges in Applying Human Rights Law to Armed Conflict’, 87 International Review of the Red Cross (2005) 737, at 745–746

(95) See Art 51(3) of AP I.

(96) Sandoz et al, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (1987) 1453.

(97) It is worth noting that no ECHR state party has ever made a derogation under Art 15(2). For a similar analysis of this example, see Hampson, supra note 19, at 564–565.

(98) See eg McCann and Others v United Kingdom, ECtHR, App No 18984/91, Judgment of 27 September 1995, paras 149–150.

(99) See also McCarthy, supra note 81, at 773 et seq; Krieger, supra note 15, at 280–281.

(100) The Public Committee against Torture in Israel et al v The Government of Israel et al, Supreme Court of Israel sitting as the High Court of Justice, Judgment, 11 December 2006, HCJ 769/02, available at 〈http://elyon1.court.gov.il/Files_ENG/02/690/007/a34/02007690.a34.pdf〉 [last accessed 12 April 2010], (hereinafter Targeted Killings).

(101) Before examining the targeting question, the Court had to resolve two preliminary questions: first, it (somewhat questionably) held that the conflict between Israel and Palestinian groups in the occupied territories should be qualified as an international armed conflict; second, it held that the suspected terrorists designated as targets can be qualified as civilians taking a direct part in hostilities—see Targeted Killings, paras 6–18, 33–40.

(102) Targeted Killings, supra note 100, para 40.

(103) See Art 51(5)(b) of AP I.

(104) Targeted Killings, supra note 100, para 40.

(105) The Court thus cited the McCann judgment of the European Court—see supra note 98.

(106) ‘Arrest, investigation, and trial are not means which can always be used. At times the possibility does not exist whatsoever; at times it involves a risk so great to the lives of the soldiers, that it is not required. However, it is a possibility which should always be considered. It might actually be particularly practical under the conditions of belligerent occupation, in which the army controls the area in which the operation takes place, and in which arrest, investigation, and trial are at times realizable possibilities. Of course, given the circumstances of a certain case, that possibility might not exist. At times, its harm to nearby innocent civilians might be greater than that caused by refraining from it. In that state of affairs, it should not be used’ Targeted Killings, para 40 (citations omitted). See also Milanovic, supra note 87, at 390–392.

(107) See in that regard the excellent recent study by Sassòli and Olson, ‘The Relationship between International Humanitarian and Human Rights Law where it Matters: Admissible Killing and Internment of Fighters in Non-International Armed Conflicts’ 90 International Review of the Red Cross (2008) 599, at 613–614, who come to a similar conclusion when it comes to the dependence of the IHRL rule on the level of state control. Where regretfully I part way with them is in their assertion that the lex specialis principle has something to do with this outcome. Similarly, see also Doswald-Beck, ‘The Right to Life in Armed Conflict: Does International Humanitarian Law Provide All the Answers?’, 88 International Review of the Red Cross (2006) 881; Prud'homme, supra note 77, at 391.

(108) Some scholars have resorted to a different, yet with respect ultimately unconvincing approach to avoiding this norm conflict, by claiming that IHL like IHRL also imposes a necessity requirement for civilians taking a direct part in hostilities, and possibly even combatants—see Melzer, Targeted Killing in International Law (2008) at 228 and 336 et seq, esp at 397; Droege, supra note 4, at 526. See also Abresch's review of Melzer's book, in 20 EJIL (2009) 449. Another step in this direction was made in the recently published ICRC Interpretative Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, available at 〈http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/direct-participation-report_res/$File/direct-participation-guidance-2009-icrc.pdf〉, at 77 et seq. [last accessed 12 April 2010]. For commentary, see Akande, ‘Clearing the Fog of War? The ICRC's Interpretive Guidance on Direct Participation in Hostilities’, EJIL: Talk!, 4 June 2009, available at 〈http://www.ejiltalk.org/clearing-the-fog-of-war-the-icrcs-interpretive-guidance-on-direct-participation-in-hostilities/〉.

(109) Art 104, Penal Code of Iran, available at 〈http://www.wluml.org/english/newsfulltxt.shtml?cmd[157]=x-157-555118〉 [last accessed 12 April 2010].

(110) Loizidou v Turkey (1995) 20 EHRR 99supraCongo v Ugandasupracontra Al-Skeini HL

(111) Dinstein and Sassòli, ‘Legislation and Maintenance of Public Order and Civil Life by Occupying Powers’, 16 EJIL (2005) 661

(112) Roberts, ‘Transformative Military Occupation: Applying the Laws of War and Human Rights’, 100 AJIL (2006) 580; G Fox, Humanitarian Occupation (2008)

(113) See Sassòli, supra note 111, at 676; Thienel, supra note 64, at 126–127.

(114) See Al-Skeini CA, supra note 63, para 196.

(115) Bhuta, ‘The Antinomies of Transformative Occupation’, 16 EJIL (2005) 721

(116) See also Schabas, supra note 8.

(117) See also Lindroos, supra note 77, at 42.

(118) See also Prud'homme, supra note 77.

(119) A Kavanagh, ‘The Elusive Divide between Interpretation and Legislation under the Human Rights Act 1998’, 24 OJLS (2004) 259

(120) But see Ben-Naftali and Shany, supra note 7, at 103.

(121) See also Hampson, supra note 19, at 570.

(122) See also Lindroos, supra note 77, at 28.