28 The Convergence Thesis

Prof. Vik Kanwar

Learning Outcomes

• The students can learn about the interplay of the principles of HRL paralleled to the principles of IHL and how one facilitates the effective implementation of the other.
• The chapter also delves upon the identification of any identical or similar standards between the two varied categories of law and the implications of merging them into one.

Introduction

This chapter is designed to familiarize the reader with how HRL informs IHL obligations in times of conflict. This chapter, in particular, seeks to critically acquaint the reader with the manner in which these principles intersect with IHL, drawing attention to the possible overlapping of goals of the two instruments.

This chapter seeks to shed light on the principle of derogation and how it sheds light on the relevance of HRL in times of armed conflict. One method that this module highlights is the minimum humanitarian standards approach. This method aims at identifying a minimum set of common standards drawn from both regimes. This method identifies the minimum standards that overlap between IHL and HRL. The Human Rights Committee’s General Comment 29 rooted the common element in the theoretical abstraction of human dignity. Therefore, as per this thesis, there is a common theoretical goal for both instruments. The convergence thesis gets credence from the fact that there are certain rights that are deemed as non-derogable; which is to say that the right cruel and degrading treatment, for instance, must be respected in times of conflict as much as in times of peace.

Convergence Thesis

This module examines the convergence between Human Rights Law and International Humanitarian Law. The non-specialist can be excused for confusing “humanitarian law” with the similar-sounding “human rights law,” or not realizing it is actually a euphemism for the “law of war” or “law of armed conflict.” However, like a viscous liquid taking the shape of its container, humanitarian law is beginning to be reshaped by the humanitarian connotations of its name. In particular, Common Article 3 of the Geneva Conventions provides protections against violence, degrading treatment, and extra-judicial executions, repeating in a more general form some of the same non-derogable rights in the ICCPR. Before discussing the implications of the merging of these two bodies of law, we can identify numerous parallels between the International Covenant on Civil and Political Rights (HRL) and the Geneva Conventions (IHL):

Prohibitions against torture and degrading treatment can be found in Article 7 of the ICCPR, and in Article 13 of the Third Geneva Convention, Article 32 of the Fourth Geneva Convention, Article 11(2) of the First Protocol, and Common Article 3.

• Arbitrary arrest and detention, which is covered in Article 9 of the ICCPR is also addressed by Article 21 of the Third Geneva Convention (governing internment, as modified by Part III, Section VI, Chapter III, prohibiting close confinement); Articles 42 and 78 of the Fourth Geneva Convention (due process rights in situations of internment), as well as Article 75 of Protocol I and Articles 5 and 6 of Protocol II.
• Non-discrimination can be found in Articles 2 and 4 of the ICCPR, as well as Common Article 3 to the Geneva Conventions, Article 75 of Protocol I, Article 2 of Protocol II, Article 6 of the First Geneva Convention of 1864 (protecting combatants “whatever nation they may belong”), Article 4 of the 1929 (according impartial treatment regardless of rank, mental health, or sex); Article 12 of Conventions 1 and 2 (1949); Article 16 of the Third Convention; and Article 27 of the Fourth Convention.
• Due process rights— minimum standards protecting life liberty and property— can be found throughout the ICCPR, including Articles 2 (remedies), 9 (arrest remedies), and 14 (fair trial), as well as various parts of the Geneva Conventions. The comprehensive version of the latter is Section IV, Chapter III of the Third Geneva Convention (providing various penal sanctions and due process rights or prisoners of war). Articles 103-106 of that convention provide for a minimal juridical process, including right to counsel and the right of appeal.
• The right against self-incrimination in ICCPR Article 14(3)(g) has parallels in the Third Geneva Convention Article 99(2), First Protocol 75(4)f, and Second Protocol 6(2)f. A norm against retroactive criminal punishment is common to ICCPR Article 15 as well as the Third Geneva Convention Article 99(2), the Fourth Convention Articles 65 and 67, First Protocol 75(4)(c), and Second Protocol 6(2)(c). Various due process rights are catalogued in Article 75(3) and (4) of the First Protocol, Article 6 of the Third Convention, and also by Common Article 3.

At its simplest, the “convergence thesis” is the idea that these two sets of law protect the very same rights and call for their enforcement under different circumstances. This is a popular emerging view among international lawyers. One writer, Prof. Ruti Teitel has even erased the IHL/HRL distinction and merged them both under the heading “Humanity Law” It should be noted that the next module will provide a contrary view, based on the traditional international law principle of lex specialis, which holds that the two bodies of law remain separate, with HRL applicable at times of peace and IHL applicable at times of armed conflict.

Support for the Convergence Thesis by the Human Rights Committee

The Human Rights Committee declared in General Comment no. 29 that during armed conflict, whether international or non-international, rules of international humanitarian law “become applicable and help in addition” to the derogation provisions to the provisions in the first paragraphs of Article 4 and 5 of the Covenant respectively to prevent the abuse of a state’s emergency powers. Article 5(1) of the International Covenant on Civil and Political Rights, stipulates that the restrictions imposed must not be “aimed at the destruction of any of the rights” recognized in the international order.2 An International Committee of the Red Cross (ICRC) summary of the conclusions reached at a gathering of humanitarian law experts, states the following:

“[T]he great majority of participants simply recalled that IHL represented a special law in as much as it has been specifically framed to apply in a period of armed conflict. They noted that, in offering ground rules adapted to this particular context of violence, this body of law makes it possible—in many cases—to specify the precise content of the non-derogable human rights. “

These statements demonstrate the cross-pollination of ideas between those applying international law from the point of view of HRL, IHL, and general international law. Another horizon where all three might meet may lie in the ICJ’s long-brewing general clauses on “humanity,” which not only indicates non-derogable protections in IHL but also that certain obligations may arise “… also from the principles and rules concerning the basic human rights of the human person” some of which “have entered into the body of general law.” The enforceability of non-derogable human rights even in situations of armed conflict would be consistent with long-term trends toward the “humanization” of humanitarian law, which differ in details, but accept in principle that there are certain core rights to human dignity that provide the mandatory minimum protection available in IHL.

One may stop one step short of arguing for the complete convergence of the two regimes by adopting a more cautious method. An alternative way of reconciling HRL with IHL is to identify a minimum set of common standards drawn from both regimes. Scholars have argued for a vital core of minimum principles applicable in “grey areas,” particularly internal strife (involving the uncertain borders between international and internal armed conflict, between armed conflict and civil disturbances, as well as between military force and law enforcement). In 1966, Jean Pictet identified a certain parallelism between HRL and IHL. While Pictet rejected the convergence of the two systems, he proposed three broad principles common to HRL and IHL: (1) the principle of inviolability, (2) the principle of non-discrimination, and (3) the principle of security. This vital core has been reflected in subsequent declarations of minimum principles. Since the 1980s, Professor Theodor Meron has argued for the creation of a new international instrument covering such grey areas between the reach of humanitarian law and human rights law. Several studies on “minimum standards” have been premised on the fact that each system offers, in some areas, greater protection than the other does.

The General Comment also emphasized that international humanitarian law remains in force even where States take steps to derogate from certain provisions of the ICCPR: [A]rticle 4, paragraph 1, requires that no measure derogating from the provisions of the Covenant may be inconsistent with the State party’s other obligations under international law, particularly the rules of international humanitarian law… States parties may in no circumstances invoke article 4 of the Covenant as justification for acting in violation of humanitarian law or peremptory norms of international law.

The enumerated “minimum standards” articulated in the General Comment include the following: all persons deprived of liberty must be treated with respect for their dignity; hostage taking, abduction, and unacknowledged detention are prohibited; persons belonging to minorities are to be protected; unlawful deportations or transfers of population are prohibited; and no declaration of a state of emergency… may be invoked as justification for a State party to engage itself… in propaganda for war, or in advocacy of national, racial or religious hatred that would constitute incitement to discrimination, hostility or violence. While this is an advance for the articulation of these principles, we should also consider the drawbacks of this approach. As we shall see later in more detail, one of the reasons humanitarian law is more palatable to emergency governments than human rights law is that it seems deceptively simple to apply. It lists a few things a state cannot do under the rubric of “military necessity” and seems to give blanket permission otherwise. Similarly, the enumeration of non-derogable rights, if separated from other derogation procedures, may result in an intolerable default position that states may take during all kinds of emergencies without regard to proportional It is true that the uneasy overlap of functions between these human rights bodies and institutions applying humanitarian law are potentially more troublesome. Formally, the density of contacts between these systems will probably increase because of the definitional malleability of violent crises and because they have been put into a possible relation by the ICJ’s Nuclear Weapons Case. In a more realist mode, the U.S. demonstrated this in its Guantanamo detentions by ignoring human rights standards and only gesturing towards humanitarian law. The greatest danger to a system is that it will become isolated and irrelevant, or else tokenized. It also remains possible that the emergence of a coherent international counter-terrorism regime could displace this patchwork of human rights norms altogether.

The ICJ continued to discuss this in the Advisory Opinion of 9 July 2004 on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory  Further, n paragraph 216 of the later Uganda A Opinion, finding in the Court continues with pragmatism and pluralism:

“The protection offered by human rights conventions does not cease in case of armed conflict . . .

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.”

Derogation Clauses in Human Rights Instruments: A Tool for Convergence?

The derogation clause of the human rights treaties and similar minimum standards in humanitarian law. Finally, there is the minor puzzle of the “consistency clause” that occurs in each of the derogation provisions and what this might mean for the coordination of norms. For example, the ICCPR article 4(1) provides that in the event of a “public emergency which threatens the life of the nation,” a state may derogate rights “to the extent strictly required and in accordance with other international legal obligations.” As we shall see, this could be read as referring to obligations under the Geneva Convention, which implies the coordination of the norms of the derogation clauses with other regimes in international law.

A contrast is often drawn between the derogability of rights in the human rights treaties and the non-derogability of humanitarian law standards. In practice, this contrast is misleading. In some respects, humanitarian law may be more effective than the human rights conventions in protecting some important human rights during emergencies, but it cannot be presumed to represent a higher standard of protection. First, human rights are in theory protected in all times: peace, war and national emergency. Secondly, unlike human rights law, humanitarian law traditionally balances its protections of human dignity against “military necessity.”

In substance, humanitarian law is actually an alternative system of derogation. When translated into rights discourse, it lowers protections in a manner as if all derogable rights were suspended under the human rights treaties. In any case, it is not possible to decide one is more protective than the other in the abstract without knowing the nature or the complexity of the emergency. We can see three approaches to trying to reconcile these two subsystems. First, analytically, we can see that both human rights conventions and humanitarian law have a compatible role as “emergency baselines” or “minimum standards.” Attempts to formulate a “lowest common denominator” approach to humanitarian law/human rights protection have been formulated in documents such as the Turku Declaration, which is aimed at identifying the protections available in the situations of emergency or violent conflict that overlap in human rights and humanitarian law. Secondly, all of the derogation provisions are accompanied by “consistency clauses” stipulating that the derogating states may not adopt measures that would be “inconsistent with their other obligations under international law.” Although there is scant evidence and no state practice to support the claim. Thomas Buergenthal has argued that this stipulation could only mean that the obligations of the Geneva Conventions are among the nonderogable rights reinforced by human rights treaties in circumstances of violent conflict. Presumably, this would only apply to states that have already agreed to the relevant provisions of the Geneva Conventions.

In the three treaties, consensus exists for the non-derogability of four fundamental rights: the right to life, the prohibition of torture, the prohibition of slavery and the prohibition of retroactive criminal laws. Reasoning that abuse of these four rights are enabled by other derogations, however, the Paris Minimum Standards also proposes the addition of nonderogable status to freedom from discrimination, the right to liberty, the right to a fair trial and the right to remedy. Like the privileging of specific over general, this publication of “emergency baselines” is yet another strategy for the coordination of norms to escape fragmentation. In 2001, the Human Rights Committee, the body established to monitor the implementation of the ICCPR published General Comment No. 29, which was a victory for the drafters of the Paris Minimum Standards:

Measures derogating from the provisions of the Covenant must be of an exceptional and temporary nature; two fundamental conditions must be met—the situation must amount to a public emergency that threatens the life of the nation, and the state party must have officially proclaimed a state of emergency, noting that the latter requirement is essential for the maintenance of the principles of legality and rule of law at times when they are most neede

Conclusion

The constant practice of mainstreaming human rights into every institution possible has been part of international law since World War 2. The convergence thesis makes a case for us to wonder whether we have mainstreamed rights into the institutions and laws that govern war. We must wonder how an activity as violent as wars be capable of preserving rights in sync with the activity. The convergence thesis seeks to answer that question. Some have argued that it comes from finding a minimum core of IHL and HRL that necessarily brings with it an overlapping consensus. With this in mind, this section has explored the idea of what constitutes a convergence between IHL and HRL. This section has urged the reader to explore the possibility that derogation constitutes a tool for the convergence. As noted in the previous section there are 4 non-derogable rights that must be in force even during times of war. They are: the right to life, the prohibition of torture, the prohibition of slavery and the prohibition of retroactive criminal laws. This list is now in the process of being expanded with the Paris minimum standards asking for other rights to be incorporated. With more rights being incorporated into this expansionary definition of minimum standards and non-derogable rights, this section urges the reader to think of the possibility of a convergence of HRL and IHL where certain rights, deemed inalienable, operate during times of war.

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/flr/vol77/iss2/13
2. Human Rights Committee, General Comment 29, States of Emergency (Aug. 31, 2001). available at http://www.unhchr.ch/tbs/doc.nsf/0/71eba4be3974b4f7c1256ae200517361/$FILE/G014447 0.pdf.
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