Lex specialis derogat generali: simultaneous (complementary) applicability of International Humanitarian Law and Human Rights
Author: PILPG
Introduction
On March 2, 2022, the UN General Assembly (UNGA) adopted Resolution ES-11/1 on the Aggression against Ukraine, condemning Russia’s invasion of Ukraine and calling on all involved to “respect strictly the relevant provisions of international humanitarian law…and to respect international human rights law.” Seven months later, the UN’s Independent International Commission of Inquiry on Ukraine reported to the UNGA that “violations of human rights and international humanitarian law” have been committed in Ukraine.
Ukraine has declared the “legal front” to be a “key area of confrontation,” wielding international human rights law (IHRL) and international humanitarian law (IHL) to wage “lawfare” against Russia. As the Russia-Ukraine war enters a new phase in 2023, we try to explain how these two sets of norms interact and how they compete, in order to better understand the legal implications of unfolding events, but also to anticipate the shape that justice will take in the wake of this conflict.
International Human Rights Law (IHRL)
IHRL was born after World War II as the newly formed United Nations adopted the United Nations Declaration of Human Rights (UNDHR). The UNDHR sets out a broad range of civil, political, economic, social, and cultural rights that nations should strive to uphold. Although it is non-binding and does not carry any penalties for non-compliance, the UNDHR was the foundation for two binding international treaties adopted in 1966: the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR). Over the years, IHRL has developed through, treaties, conventions, protocols, declarations, and resolutions adopted by various United Nations and regional bodies, the judicial decisions of international and regional human rights courts and tribunals, and customary international law.
Both Ukraine and the Russian Federation are party to seven of the nine core human rights instruments[1], while Ukraine is also party to the Convention on the Protection of all Persons from Enforced Disappearance.
While IHRL addresses wide-ranging rights and duties, it does have limitations:
- IHRL has traditionally been understood to be binding only on state parties to international human rights treaties. That said, there is an increasing trend towards extending accountability under IHRL to non-state actors, under certain conditions, such as if a non-state actor has effective control of a territory.
- Many human rights such as the right to freedom of expression, movement and assembly, and the right to privacy, are considered “derogable” – meaning that states can temporarily limit or suspend them. The conditions under which states may do so are strictly defined and include notification according to the procedure set out in the relevant treaty. Any derogation must be strictly necessary and proportionate to achieve a legitimate aim such as protecting national security or public order. Some human rights, such as the right to life, freedom from torture, and freedom from slavery, are considered “non-derogable,” meaning that they can never be suspended or limited.
After Ukraine declared a public state of emergency on February 24, 2022, it notified the UN Secretary General that it was derogating from various human rights under the ICCPR and the European Convention on Human Rights (ECHR) and imposing martial law. In practice this has meant, for instance, that Ukraine has been able to legally ban male Ukrainians aged 18-60 from travelling abroad, notwithstanding provisions on freedom of movement contained in IHRL. Russia has not made any notifications of any derogations.
International Humanitarian Law (IHL)
Unlike IHLR, IHL (also known as the Law of Armed Conflict) applies only in armed conflict. IHL assumes the use of force and as a result people will die, but seeks to minimize the armed conflict’s humanitarian effects.
IHL as practiced today emerged in the 19th century, most notably with the adoption of the first Geneva Convention in 1864, which addressed the treatment of wounded. Over time the law has evolved as additional protocols and conventions, including the four 1949 Geneva Conventions related to the treatment of civilians, prisoners of war, sick, wounded, and shipwrecked and their 1977 Additional Protocols, codified further rights and duties. Additional Protocol I supplemented protections for civilians in international armed conflict, while Additional Protocol II expanded on the law related to situations of non-international armed conflict. Both Ukraine and the Russian Federation are parties to, among others, the four 1949 Geneva Conventions, as well as Additional Protocols I and II.
IHL today protects persons who are not, or are no longer, participating in the hostilities, such as civilians and wounded or captured combatants; bans certain methods and means of warfare, such as weapons that cause unnecessary suffering or fail to distinguish between civilians and combatants; and requires humane treatment of all persons in the power of an adverse party, including prisoners of war and detained persons. Other important principles include the prohibition of forced displacement of civilians and the targeting of cultural property.
Unlike IHRL, IHL is plainly binding on both state authorities and non-state parties. It imposes duties on all parties to a conflict, regardless of which party started the conflict, their reasons for doing so, or whether it was started lawfully (jus ad bellum). Also unlike many rights contained in IHRL, IHL is non-derogable, being considered so fundamental to the preservation of human dignity that the rights and duties therein cannot be suspended or limited under any circumstance.
Lex specialis
The relationship between IHL and IHRL is complex and remains debated amongst international lawyers. Three sets of views have emerged in this regard: separatist, complementarist, and integrationist. As the name suggests, the “separatists” take the position that IHL and IHRL are mutually distinct and exist in silos – IHRL applies only in peacetime while IHL applies only during wartime. Since they had different spheres of application, no question of a conflict arose under this view. A recent example of policy driven by this view is Russia’s decision to denounce the European Convention on Human Rights, to deflect criticism following its invasion of Ukraine.[2] The “integrationists” take the diametrically opposite view that IHL is a sub-category part of the broader IHRL field. Whereas, the “complementarists” represent the middle ground, acknowledging that IHL and IHRL are distinct yet complementary systems of law.
Over time, the complementarist approach has come to reflect the dominant view on the relationship between IHL and IHRL, and has been endorsed by the International Court of Justice (ICJ) and reiterated by different human rights monitoring agencies. This approach advocates that IHL and IHRL have their own unique value and they can, and should be, applied together to achieve the maximum protection of those who cannot protect themselves. Since the protections offered by both fields are similar, their concurrent application should not, in theory, pose problems. Their concurrent application might, however, lead to issues where there is a conflict between IHL and IHRL. One solution to this problem is found in the principle lex specialis derogat legi generali, i.e., thatthe more specific rule prevails over the more general rule (“lex specialis” in short). The ICJ has invoked the lex specialis principle when faced with issues where IHL and IHRL appeared to be in conflict. In its Advisory Opinion on theLegality of the Threat or Use of Nuclear Weapons, the ICJ considered that the test of an arbitrary deprivation of life (where the protection against such deprivation is provided for both under IHL and IHRL but with different tests of “arbitrariness”), should be determined by the applicable lex specialis, namely, IHL, which is designed to regulate armed conduct. Similarly, in its 2004 Advisory Opinion on theLegal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the ICJ noted that it would have to take into consideration both IHRL, and IHL as lex specialis, in order to decide the issues before it.
These decisions raised a number of questions regarding the meaning and scope of the lex specialis principle under international law, as well as whether IHRL could be lex specialis and in which situations. In an extensive 2006 study, the International Law Commission (ILC) suggested that the application of lex specialis is highly fact-specific and that the principle cannot be meaningfully codified (¶119). One of the difficulties identified by the ILC is the lack of clarity about the difference between “general” and “special.” A rule may be general or special in relation to its subject matter, or with regard to the numbers of actors to whom the rule applies.
Some human rights courts avoid the application of the lex specialis principle and adopt a different approach, illustrating the evolution of international law towards a larger application of human rights in times of armed conflicts. In its January 25, 2023 decision, the European Court of Human Rights (ECtHR) found that it can hear inter-State claims brought by Ukraine and the Netherlands against Russia in relation to Russia’s activities in the eastern territories of Ukraine because Russia had “effective control” over these areas. The court considered that a State is responsible for human rights violations committed by its State authorities on a territory it controls. Ukraine claims that Russia-controlled separatists committed human rights violations in Donetsk and Luhansk. The Netherlands’ claim concerns the downing by Russia of a civilian aircraft in which 298 civilians perished. The ECtHR will determine whether Russia breached the European Convention of Human Rights, particularly with respect to the right to life, prohibition of torture, forced labor, abductions and unlawful arrests in a later judgment. This decision illustrates that the “effective control” test may be used as an alternative criterion to the lex specialis principle, and allow human rights courts to condemn human rights violations committed during armed conflict.
Enforcement of IHRL and IHL
One of the most significant differences between the enforcement of IHRL and IHL is that IHRL provides an enforcement mechanism to those whose basic rights have been violated, while IHL focuses on the domestic and/or international criminal prosecution of those who violate these rights. Treaty bodies (or “Committees”) regularly monitor the implementation of the core international human rights treaties and decide on complaints brought against States for violations of specific treaties. Eight[3] of these Committees can receive petitions from individuals who claim that their rights under the treaty have been violated by a State that is party to that treaty, provided that all domestic remedies have been exhausted. The Committee’s decision serves as an authoritative interpretation of that particular treaty and may contain recommendations for the State party, such as instructions to provide redress to the complainant. Committees also require a State party found to be in violation of the treaty to provide information on the steps taken to implement the Committee’s recommendations and may keep the case under consideration until adequate measures are taken.
States are under an obligation to investigate violations of IHL and IHRL, and punish those responsible for these violations. In December 2005, the UN General Assembly adopted GA Resolution 60/147, “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law.” GA Resolution 60/147 requires States to adopt effective legislative and administrative procedures to investigate violations of IHL and IHRL; take action against those allegedly responsible in accordance with domestic and international law; provide victims of IHL and IHRL with equal and effective access to justice; and provide effective remedies to victims, including reparations. Therefore, domestic courts play a key role in the enforcement of both IHL and IHRL. Human rights violations occurring during an armed conflict that are not a direct result of hostilities should be resolved by applying IHRL and domestic law.
Domestic jurisdiction is complemented by an intricate system of international and mixed criminal tribunals, which both develop and clarify IHL and IHRL. At its center is the International Criminal Court (ICC), the world’s first permanent international criminal court, which has jurisdiction over violations of both IHL and IHRL. The Rome Statute, adopted in 1998, established the International Criminal Court “to exercise its jurisdiction over persons for the most serious crimes of international concern” and noted that it was “complementary to national criminal jurisdictions.” Currently, 123 countries are State Parties to the Rome Statute of the International Criminal Court. The International Criminal Court does not have primacy over national courts and may exercise its jurisdiction at the request of the ICC Prosecutor or a State Party only when a State is unable or unwilling to prosecute alleged crimes or criminals over which it has jurisdiction.
Additionally, prompted by specific conflicts around the world that victimized hundreds of thousands of civilians, special ad hoc courts have been set up to prosecute domestic and international crimes. The UN Security Council has established two ad hoc criminal tribunals to prosecute those responsible for serious violations of IHL – the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). ICTY and ICTR share concurrent jurisdiction with national courts, over which they have primacy.
Further, the UN has also established hybrid tribunals, which contain elements of both international and domestic jurisdictions (e.g., Special Court for Sierra Leone, Special Tribunal for Lebanon); and special chambers within national courts (e.g., Extraordinary Chambers in the Courts of Cambodia, Serbia’s War Crimes Chambers) in order to prosecute violations of IHL.
The development of these material has been made possible through the support of the Public International Law & Policy Group.
Footnotes
[1] The seven human rights instruments are: the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the International Covenant on Civil and Political Rights; the Convention on the Elimination of All Forms of Discrimination against Women; the International Convention on the Elimination of All Forms of Racial Discriminatio n; the International Covenant on Economic, Social and Cultural Rights; the Convention on the Rights of the Child; and the Convention on the Rights of Persons with Disabilities.
[2] Katharine Fortin, The relationship between international human rights law and international humanitarian law: Taking stock at the end of 2022? 40(4) NQHR 343 at 350.
[3] These include the Human Rights Committee (CCPR), the Committee on the Elimination of Racial Discrimination (CERD), the Committee against Torture (CAT), the Committee on Elimination of Discrimination against Women (CEDAW), the Committee on the Rights of Persons with Disabilities (CRPD), the Committee on Enforced Disappearances (CED), the Committee on Economic, Social and Cultural Rights (CESCR), and the Committee on the Rights of the Child (CRC).
Photo by Anthony Garand on Unsplash
