Analyze the scope of the rights to life and freedom from torture during an armed conflict versus peacetime.
1. Introduction
Human rights promote a fair, equal and safe global society thus all humans have them. This paper will analyze the scope of human rights focusing on two core human rights: (1) the right to life and (2) the right to freedom from torture.
First the paper examines the relationship between International Humanitarian Law (IHL) and International Human Rights Law (IHRL) including the role of Lex Specialis. Secondly a definition of the term refugee is offered, as this will be used when analyzing the scope of each human right. The paper will provide an analysis of the right to life before providing an analysis of the prohibition of torture. These analyses will distinguish between the protection offered by IHL during an armed conflict and the protection offered by IHRL during peacetime in addition to determining Lex Specialis and applying this on the issue of International Refugee Law (IRL). Then the paper examines the states obligation to apply measures during periods of Transitional Justice (TJ). Finally, the paper offers a conclusion to the conducted analyses and examinations of the scope of the right to life and the prohibition of torture.
2. The relationship between IHL and IHRL
IHL and IHRL are complementary systems of international law aiming to protect the lives, health and dignity of peoples. The most important source of IHL is the Geneva Convention from 1949 (GC) and its Additional Protocols from 1977 while the most important sources of IHRL are treaties and declarations. There are 4 GC’s divided into the sections considering the protection of (1) sick and wounded on land, (2) at sea, (3) prisoners of war and (4) civilians. This paper recognizes that there are differences between the protection of the four groups, however due to limited characters the GC’s will be represented through the common articles.
Many rights present in IHL and IHTL, including the right to life and the prohibition of torture, originate from customary international law, since notions of these rights have been constantly and uniformly practiced by states as law due to a belief that the state was obligated to do so (opinion juris). The two bodies of law certainly have similar aims and to some extent similar means of achieving that aim, but there are also many differences between the two bodies of law.
One of the major differences is the recipient of rights, as IHL only protects peoples that doesn’t (or no longer) participates directly in the hostilities while IHRL protects all peoples within the jurisdiction of the state. A further difference is the scope of application as only states are bound by IHRL whereas all parties to an armed conflict is bound by the obligations of IHL. Another key difference is the temporal scope, as IHL only applies in armed conflict and thus not in peacetime. The distinction between non-international armed conflict and international armed conflict is relevant when determining which set of IHL rules apply to a certain question of human rights violations. Additional protocol number 2 is only applicable during a non-international armed conflict. This paper identifies an armed conflict as an international armed conflict, thus the distinction will not be mentioned further. The temporal scope of IHRL is disputed amongst judicial scholars, but the most recognized concept is that it is applicable both during peacetime and during armed conflict.
Remembering that IHL and IHRL are different bodies of law with somewhat different approaches, there will be times where the two systems conflict and as a result one system must surrender. In this case Lex Specialis must be acknowledged thus the specialized law or right overwrites the general law regulating the same subject. The International Court of Justice (ICJ) has stated that neither LOAC nor IHRL automatically is the specially formed rule. States can in times of crisis derogate from some of their IHRL obligations, whereas IHL cannot be suspended as these rules are designed to be applicable during armed conflict. However not all IHRL obligations can be derogated – for example can neither the right to life nor the prohibition against torture be derogated from. What to do in these specific situations will be examined further on in this paper.
3. The term refugee
The term refugee is defined in The Convention on the Status of Refugees from 1951 (1951 Refugee Convention) article 1(A)(2) as “people that are outside of their country of nationality, due to a well-founded fear of persecution for reasons of race, religion, nationality, social group, or political opinion, and is unable or owing to such fear, unwilling to be rely on the protection of that country”. The fear of persecution includes all types of persecution, including torture, while the listed nexus is complete. Recognition as a refugee does not however automatically grant refugee status, as the 1951 Refugee Convention article 1(F) sets certain exceptions for people deemed unworthy of receiving refugee status – most importantly terrorists, rapists and murders. In the 1951 Refugee convention certain temporal and geographical limitations exist. However, with the ratification of Protocol relating to the Status of Refugees from 1967 these limitations have been expunged.
States have an array of obligations when dealing with (possible) refugees, however, this paper discusses only the refugee’s right to life and prohibition of torture.
4. The right to life
To determine what obligations “the right to life” entails during peace time contra during armed conflict an examination of IHRL and IHL must be made.
In IHRL the term “right to life” surfaces in several treaties and declarations, thus virtually all United Nations (UN) member states have ratified some treaty that includes the right to life.
The Universal Declaration of Human Rights from 1948 (UDHR) was the first international document recognizing the right to life. UDHR Article 3 states that “Everyone has the right to life, liberty and security of person”. The UDHR is a non-binding declaration by the UN General Assembly that despite its non-binding character serves as the backbone of IHRL as its values has since been established and developed through both international and regional legally binding treaties.
An example of international ratification is article 6 of The International Covenant on Civil and Political Rights from 1966 (ICCPR) which states that “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life”. Using the word inherent implies that the right to life is claimable by all persons inevitably because they are human and as a result states cannot derogate from it. The wording illustrates the natural school of thoughts belief that human rights does not need to be given as they are inherent just because we are human. The ICCPR introduces both a positive obligation for the state to protect life through criminalizing certain behaviors and introducing legal measures to protect the life of its individuals. The ICCPR also introduces a negative obligation for the state not to participate in arbitrary deprivation of life. However, the right to life is not absolute as article 6 only prohibits arbitrary deprivation of life – thus can there be deprivations of life which are non-arbitrary, such as self-defense, states legally administering the death penalty or casualties during armed conflicts. It is very important to recognize that prohibition of arbitrary deprivation of life does not offer the same protection during armed conflict as it does during peace time.
The European Convention for Protection of Human Rights and Fundamental Freedoms from 1950 (ECHR) article 2(1) provides an example of regional ratification of the right to life by stating that “everyone’s right to life shall be protected by law…”. However, article 2(2) provides a list of exceptions such as self-defense, thereby preventing the right from being absolute. Despite the literary differences of the ICCPR and the ECHR the two have been interpreted similarly by the Human Rights Committee (HRC) and the European Court of Human Rights.
Neither the UDHR, the ICCPR or the ECHR clarifies when the right to life begins or ends thus it is up to the states to govern this on a national level. Only the American Convention on Human Rights from 1969 (IACHR) attempts to provide such clarification by stating in article 4(1) that “Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life”. IACHR identifies the moment of conception as the beginning of the right to life. This view is however not accepted through other sources of IHRL thus cannot be considered internationally recognized. The IACHR is significantly different in the construction and wording from the previous mentions of the right to life. Article 4(1) clearly states that the right to life does in fact consist of two positive elements (1) the absence of death and (2) providing the bare necessities to live a respected and dignified life, including access to food, shelter and medical care. This extension of the principle has been interpreted as underlying in both the UDHR, ICCPR and ECHR, thus enabling the incorporation of basic economic and social needs into the right to life. This development has consequences particularly when the peoples are unable to protect themselves – for example when fleeing from an armed conflict. This will be discussed further on in this paper.
When participating in an armed conflict states and combatants accept the use of deadly force, thus there is an inherent omission from the right to life. IHL originates from customary law, which has since been written down – primarily in the GC’s. GC’s 1-4 common article 3 states that “…the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: a) violence to life and person…”.
When assessing whether an act constitutes a violation of IHL one must go through the four core principles of law of armed conflict. The first core principle is distinction between combatants and civilians including prisoner of wars, ill and injured and former combatants no longer participating directly in the hostilities. Additional protocol 1 from 1977, article 48 legalizes this principle by prohibiting civilian persons and property from being military targets. The second core principle is military necessity, which is troublesome to define. However, the principle must be the threshold to meet as everything not considered military necessary must be a violation of IHL. There is a clear distinction between military necessity and military convenience and states/state agents must provide evidence for the necessity of an attack. The third principle is unnecessary suffering of civilians, societies and combatants, questioning the legitimacy of the military target and the degree of ham caused by the act. The last core principle is proportionality between the military goal and the civilian suffering considering the information that was or should have been included in the decision to perform a certain act. Thus, compliance with the four core principles constitute an exception to the right to life as expressed in IHRL and Common Article 3 of the GC’s thus arbitrarily deprivation of life can be permitted as collateral damage.
When answering the question of which system should be followed in cases of conflict within the right to life systems, it is recognized that IHRL according to the ICCPR article 6 is applicable both during peacetime and during armed conflict. The meaning of arbitrary deprivation of life, must however be determined by the applicable Lex Specialis, IHL, which is designed to regulate the conduct of hostilities.
The right to life is formulated very broadly in both IHL and IHRL as exemplified above and with good reason as human rights are interpreted differently around the world depending on one’s cultural, political and social standards. Therefor it is left up to the states to introduce legislative measures defining the principle. While a state during armed conflict cannot always be required to preserve human life, it is required under IHRL to govern the state according with the idea of human dignity.
5. Prohibition of torture
Prohibition of torture aims to protect the individual’s dignity and integrity. To determine what prohibition of torture entails during peace time contra during armed conflict an examination of IHRL and IHL must be made.
IHRL offers many variations of the prohibition of torture. One of the earliest codifications of the prohibition is UDHR Article 5 stating that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” This has since been ratified in other legally binding conventions both at regional level and at international level.
An example of regional adaptation is ECHR Article 3 which is identical to UDHR article 5. The articles distinguish between torture and cruel, inhuman and degrading treatment as a scale with degrading treatment at the bottom and torture at the top. Degrading treatment is usually accepted to amount to gross humiliation or the victim forced to perform against his will while torture is an intensified form of inhuman treatment with a purpose.
An example of international adaptation is ICCPR Article 7 which states that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation”. This article expands the context of UDHR article 5, as it clearly prohibits experimentation on humans. The need to have this expressed so clearly in the convention is a consequence of the atrocities committed during World War 2. The ICCPR also recognizes the prohibition of torture as non-derogable in article 4, meaning that the prohibition of torture applies in both peacetime and during armed conflict.
However, none of these IHRL instruments on prohibition of torture offers a definition of what torture is.
Torture is not an act in itself, or specific type of acts, but it is the legal qualification of an event or behaviour, based on the comprehensive assessment of this event or behavior
The purpose of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment from 1987 (CAT) is to provide solutions for the issues arising the prohibition of torture and to further secure the prohibition. The definition of torture in CAT article 1 states that any act causing severe physical or mental pain or suffering constitutes torture if it is intentionally inflicted on a person, by or with the knowledge of the state or state agent, for the purposes of obtaining information, a confession, intimidating or coercing him or a third person. CAT acknowledges that also mental torture is prohibited – this extension has been recognized as underlying in both ECHR and ICCPR. Article 1 imposes obligations on states and state agents by prohibiting torture performed by these members. However, the treaty does not regulate actions of non-state actors. Therefore, they must be regulated by other IHRL measures. The ICCPR article 7 prohibits torture in any form, by anyone, without limiting the scope of applicability and as so ICCPR binds all types of states, non-state actors and individuals. CAT article 4(1) also require states to criminalize torture through national legislation in addition to article 12 stating that states must conduct proper investigation of suspected acts of torture.
The prohibition of torture is also protected multiple places in IHL. An example hereof is GC Common Article 3(a) stating that “…the following acts are and shall remain prohibited at any time and in any place…: a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture…”.
GC common article 3 distinguishes between torture and other cruel treatment in the same way as
The prohibition of torture is mentioned multiple times in the four GC’s in addition to article 3, however this paper will not advance from the distinction between peoples participating directly in hostilities and those that do not.
Common article 3 protects all peoples not participating directly in an armed conflict, but offer no protection of combatants. This lack does however not justify torture of combatants. The 1998 Statute of the International Criminal Court (SICC) article 8(2)a(ii) which defines a war crime not exclusively as “torture or inhuman treatment, including biological experiments.” Thus, are combatants protected against torture during an armed conflict. The preamble states that the purpose of the SICC is to provide a forum for exercising criminal jurisdiction over those responsible of “crimes (that) threaten the peace, security and well-being of the world”. This purpose was achieved through the establishment of the International Criminal court.
IHL doesn’t exclusively prohibit torture performed by states or state actors, as torture is prohibited anywhere, always and by anyone. This elaboration of the prohibition of torture from CAT article 4(1) is very useful during armed conflicts where one party often exercises control without being recognized as a state actor.
The prohibition of torture is one of the most recognized rights as all UN member states have ratified the at least one treaty prohibiting such actions. However, the principle is also considered customary law and recognized as jus cogens. Jus cogens refers to fundamental rights and principles that under no circumstance must be derogated from. The prohibition of torture is recognized as jus cogens in ICCPR article 2. Consequently the 4 core principles of IHL cannot justify a breach of the prohibition of torture. This is different from protection of the right to life during an armed conflict.
The question of which system should be considered Lex Specialis and thus should be followed on expense of the other system must be answered as follows. In cases of conflict within the prohibition of torture systems, IHRL offers the CAT, a specialized measure, providing guidance exclusively on the issue of torture, where IHL merely offers a general prohibition of torture. Consequently, IHRL must be considered the Lex Specialis and IHL should serve as a supplementation thereto. One must however remember that the prohibition of torture is recognized as Jus Cogens, and thus neither states, non-state actors nor individuals can derogate therefrom – regardless of which body of law should be accepted as Lex Specialis.
The jus cogens nature of the prohibition of torture offers an additional protection in the context of the principle of non-refoulement. Article 33(1) in the 1951 Refugee Convention states that states must not return a refugee to a country where his life or freedom would be threatened because of his race, religion, nationality, social group or political opinion. Peoples considered refugees can consequently not be sent back to their country of origin if there is risk of torture or inhuman and degrading treatment, regardless of whether they are formally recognized as refugees by the state. Article 32 in the 1951 Refugee Convention provides exceptions to the principle of non-refoulement, primarily regarding peoples considered dangerous. The principle of non-refoulement is also present in CAT article 3 which states that “No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture”. This prohibits states from returning peoples who falls under the exceptions of articles 1(F) and 33(2) if they are at risk of being tortured. The personal scope of the protection is wider according to CAT, while the threshold regarding persecution is higher as CAT only provides protection against torture, thus a person seeking protection from cruel, inhuman or degrading treatment will not be protected from refoulement by CAT article 3.
6. State obligations
This paper has provided evidence that the different bodies of law imposes different obligations on the states. Regardless of the differences, all states and state agents have an international obligation to “respect, promote, protect and fulfil human rights” as “inherent, universal, indivisible and interdependent”. The first segment of this obligation requires states to accept that the human rights exist by introducing human rights as a part of national legislation. Where rights are (at risk of being) violated states must seek to investigate these breaches and punish perpetrators and thus ensuring that peoples can embrace their human rights. The second segment of the obligation entails that all peoples can claim the protection of their human rights just because they are human, and those rights must be applied equally to all persons without any form of discrimination as no human right can be fully realized without recognizing all other human rights. States interpretations of this extensive obligation varies much from state to state.
Even though the right to life and the prohibition of torture is ratified in some way or form by all countries around the world, violations of the rights still occur. Through four interrelated objectives TJ proposes procedures to deal with these violations and to move past them as a society. The four objectives are (1) truth, (2) justice, (3) reparations and (4) guarantees of non-recurrence. Truth is achieved when states offer transparency regarding what, why, by whom and against whom the violations happened, so that society can acknowledge victims through reparations and investigate, prosecute and punish perpetrators to achieve justice. When offering reparations, a state should attempt to bring victims back to the state they were in before the violations, however this is not always possible thus stressing the importance of achieving all four objectives. Guarantees of non-recurrence requires implementation of different institutions and politics to prevent future violations. Many if not all sources of IHRL and IHL facilitates states in achieving the objectives of TJ through obligations such as investigate violations, criminalize actions and promote transparency.
TRUTH COMMISIONS
Conclusion
It is concluded that scope of the right to life differs from peacetime to armed conflicts. During peacetime, the right to life is regulated by IHRL whilst the right to life during armed conflict is regulated primarily by IHL and supplementary by IHRL to fill in the gaps of interpretation. The very definition of right to life includes more than just an absence of death, it requires the states to support the opportunity to acquire fundamental social and economic rights. Furthermore, the right to life is not an absolute right as it is possible both in peacetime and during armed conflict to derogate from the obligations when it is necessary and proportionate. The right to life is also present in IRL where peoples meeting the definition of a refugee can be granted asylum and thus be granted protection of the right to life.
States are obliged to respect, promote, protect and fulfil the right to life and the prohibition of torture as universal. In situations of violations of these human rights the state must take measures to conjure truth, provide justice, administer reparations and guarantee non-recurrence of the violations.