29 Human Rights and IHL: (b) The Traditional Principle of Lex Specialis

Prof. Vik Kanwar

Learning Outcomes

1. With the help of this chapter, the students can abreast themselves on the disparate character of International Humanitarian Law and its interplay with Human Rights Law.
2. The chapter also brings to the ground the peculiar nature of IHL and conceptualizes its application based on the principle of ‘lex specialis generalibus derogate’.

Introduction

This module will attempt to challenge the understanding of convergence that was established in the last module. This module will aim to introduce the reader to the idea of IHL being a special law that is designed to govern a more pressing set of circumstances. Therefore, in elaborating on the principle of lex specialis, this module also introduces readers to the jurisprudence that underpins the principle that states that “special law derogates general law.”

This chapter first aim is to ground the reader in the justifications and legal underpinnings of the principle of lex specialis. Furthermore, this section lays out the argument that is made to fence IHL off from the rest of Public International law to make it a specific law. Much of this scholarship is incompatible to the previous module on the convergence thesis. Therefore, this module also gives a contrary view to the last module on the relationship between IHL and HRL.

Principle of Lex Specialis

Classical international law scholarship cites the distinction between the law of peace and the law of war as the primary example of the principle of lex specialis (“the specific prevails over the general”). To a limited degree, this continues in the applicability of IHL over general law in situations of armed conflict, but at its extreme it could it also justify the wholesale derogation of general human rights obligations by IHL. The role of lex specialis is firmly established in international law. The concept of lex specialis is a principle of priority to decide the applicable law between two kinds of regimes: lex specialis generalibus derogate means “special law (specific rights and obligations) derogates general law.” The idea that the law of peace (Human Rights Law) can be derogated by the law of war (IHL) continues to exert an influence on consideration of the alternative or complementary protections afforded by each regime. We saw in the previous module that jurisprudentially distinct, although in recent times they are increasingly described as converging.

The principle of lex specialis is potentially a navigational tool for avoiding conflict between alternative derogation norms. The lex specialis principle is an expression of preference for specialized international regimes over general international law. However, it is not clear which law should get priority between human rights and humanitarian law, i.e., between two different sets of specialized rules. Wilfred Jenks suggested in 1953 that “instruments relating to the laws of war which, in the absence of evidence of a contrary intention or other special circumstances, must clearly be regarded as leges specialises in relation to instruments laying down peace-time norms concerning the same subjects.” This would suggest a neat division of labor between humanitarian and human rights law based on applicability during wartime/peacetime or one during international/internal conflicts. However, the entire regime of human right law has come into maturity since that time, and today each area covers much more than its core subject matter.

This principle of precedence in favour of particular provisions is, however, subject to one important qualification. Namely, the general provision involved does not constitute a rule of mandatory or peremptory law (jus cogens). They have been hailed as general principles of law and axioms of legal logic.

Lex Specialis or Convergence?

Classical international law scholarship cites the distinction between the law of peace and the law of war as the primary example of the principle of lex specialis (“the specific prevails over the general”). To a limited degree, this continues in the applicability of IHL over general law in situations of armed conflict, but could it also justify the wholesale derogation of general human rights obligations by IHL. Certainly, this position would enjoy very little legitimacy today, as human rights are entrenched in constitutions and implemented in statutes.4 States and non-states alike are subject to domestic law. Today, it is rare for anyone to claim that all of these guarantees are suspended by the application of  IHL. Instead, the treatment of HRL and IHL can be seen as two areas of “special law” that govern different spheres of activity.

Two Advisory Opinions of the ICJ— The Nuclear Weapons and the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (“Wall”) Opinions— discuss the applicability of principle of lex specialis between these two regimes. In the Nuclear Weapons Opinion, the court took no position on the theoretical debate on the “convergence” of HRL and IHL, but did indicate that in practice, there will be situations of simultaneous application. In Nuclear Weapons, the court did not state that the application of IHL automatically precludes consideration of HRL issues, but instead that in order to be able to answer questions about HRL obligations in the course of an armed conflict (such as the deprivation of life or arbitrary detention), the lex specialis of IHL would have to be invoked. Specifically, the human rights regime was directed toward the optimal protection of all human rights in peacetime, but that questions relating to “unlawful loss of life in hostilities” were governed by IHL.

Though each regime is operative in its sphere and subject to exceptions in its own terms, questions must also be answered about the relative operation of derogation provisions in each regime. Each has its own version of the “state of necessity” mentioned in the Articles on State Responsibility. Like other treaties, human rights conventions tend to recognize the authority of the State to suspend, for a limited period of time, certain obligations under exceptional circumstances. Unlike the generic plea of necessity in international law, when the derogation of international obligations is restriction, the exercise of human rights is treated as a specialized derogation clause of human rights treaties, which require strict necessity and proportionality along with certain procedural requirements. IHL is considered a set of laws that is applicable even when other regimes have been derogated from. Emphasizing their mutual exclusivity, Draper refers to IHL itself as “derogation from the normal regime of human rights.” Within the regime of IHL, no additional derogation from basic protections is allowed, though the plea of “military necessity” may excuse specific actions that are compelled by the circumstances, and defensible through requirements of proportionality. IHL also gives scope to the customary protections available in HRL and other regimes according to the Martens clause.

The general international law framework does set some ground rules for alternative derogation frameworks. As principles of precedence in favor of particular provisions, both lex specialis and the derogation according to necessity doctrines are “subject to one important qualification, namely, that the general provision involved does not constitute a rule of mandatory or peremptory law (jus cogens).” While the very existence of derogation frameworks in HRL disconfirms the notion that all human rights are jus cogens, the latter is implicit in the norm that derogation should be exceptional and should never violate certain fundamental human rights like the prohibition of torture or slavery. This principle is very important since it establishes the inviolability of certain human rights in all moments and situations. Aside from non-derogable provisions the International Covenant on Civil and Political Rights (ICCPR), and the two regional instruments, the European Convention on the Protection of Human Rights and Freedoms ECHR and the IACHR (Inter-American Convention on Human Rights), all stipulate that States may derogate from the obligations undertaken under those instruments, “provided that such measures are not inconsistent with their other obligations under international law.” The expression “other obligations under international law” covers both international customary law and the law contained in international treaties, and in the various human rights and international humanitarian law conventions.

The arguments above reflect a method of “overlaps filling gaps” which might minimize abuses of human rights in emergencies or in failing states. Convergence—“meshing” or “fusing”— is not a new idea, but it entails rejection of a more traditional view well-expressed three decades ago by G.I.A.D. Draper. For Draper theories of convergence represented a confusion of purposes:

“The attempt to confuse the two regimes of law is insupportable in theory and inadequate in practice. The two regimes are not only distinct but are diametrically opposed . . . at the end of the day, the law of human rights seeks to reflect the cohesion and harmony in human society and must, from the nature of things be a different and opposed law to that which seeks to regulate the conduct of hostile relationships between states or other organized armed groups, and in internal rebellions.

Draper argues that while there are moments of “overlap” and “contact,” between the two areas, the principle has a particularly clear division of labor. In Draper’s view, preventing the co-mingling and partial subordination of one body of laws to the other would only muddy that valuable clarity. Draper’s confidence that applicability remains clear, and even his emphasis on the aspects of IHL regulating “hostile relationships” are emblematic of a more traditional notion of the Law of War, one which has been replaced in recent years by an emphasis on the protection of civilians, grey areas of civil strife, and criminal responsibility for crimes against humanity.

Conclusion: Summary and Critique

One of the key differences between the two legal regimes is that IHL continues, perhaps by the nature of its very purpose, to make distinctions based on status, and affords greater protections to civilians than combatants, while seemingly giving the latter the privilege to kill, sometimes by intention and sometimes by mistake. HRL covers those rights that one holds by virtue of being human, and not based on any other status or distinction. The principle of lex specialis, if nothing else, recognizes the logical difficulty, and perhaps impossibility of having it both ways. Though compared to the theory of convergence, which seems to embrace an expansive and progressive notion of humanity, the principle of lex specialis may seem old-fashioned and retrogressive. Still, before discarding the notion of lex specialis, one must also be attentive to both (1) the practical requirements of treating HRL and IHL as bodies of law, and (2) possible unintended negative consequences of convergence, including the adoption of unclear standards in the name of interoperability of regimes.

With this backdrop in mind, it is clear that this section has primarily aimed at challenging the supremacy of the convergence thesis. In the last module, the reader was acquainted with the arguments that justified the convergence thesis as progressive and necessary. In this module, the reader is urged to challenge the dominance of the convergence thesis. Over the course of this section the authors has attempted to make a case for the lex specialis thesis to be considered the dominant position in this debate. Over and above everything else, one thing is for certain; we consistently apply a loosened standard of lex specialis, the regular human rights regime is consistently followed during times of war. The overarching question this section is posing to the reader is that there is this: Is there still merit in holding onto the theory of lex specialis.

Reference

1. Ruti Teitel, Humanity Law: A New Interpretive Lens on the International Sphere, 77 Fordham L. Rev. 667 (2008). Available at: http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=4395&context=flr
2. Naz K. Modirzadeh, The Dark Sides of Convergence: A Pro-Civilian Critique of the Extraterritorial Application of Human Rights Law in Armed Conflict (January 27, 2010). U.S. Naval War College International Law Studies (Blue Book) Series, Vol. 86, pp. 349-410, 2010. Available at SSRN: http://ssrn.com/abstract=1543482.
3. Advisory Opinion: Legality of the Use or Threat of Nuclear Weapons [1996]. International Court of Justice. Summary available at: http://www.icj-cij.org/docket/files/95/7497.pdf
4. Advisory Opinion: Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory [2004]. International Court of Justice. Summary available at: http://www.icj-cij.org/docket/files/131/1677.pdf