The right to life in armed conflict: Does international humanitarian law provide all the answers?

International Review of the Red Cross

Volumn 88, Issue 864, 2007, Pages 881-904

  Doswald Beck, Louise ^a  

^a Development Studies in Geneva (IHEID)   (Switzerland)

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EID: 78649250710     PISSN: 18163831     EISSN: 16075889     Source Type: Journal    
DOI: 10.1017/S1816383107000823     Document Type: Article

References (81)

1. International Court of Justice, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, in which the Court stated that Article 6 of the International Covenant on Civil and Political Rights is applicable to a use of nuclear weapons
2. but that “what is an arbitrary deprivation of life … 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”. ICJ Rep. 1996, § 25.
3. The only exception was a direct use of IHL by the Inter-American Commission of Human Rights, in particular in the case of Abella v. Argentina (Report No. 55/97, Case 11.137, 18 November 1997, §§ 152–189).
4. Report of the expert meeting on the right to life in armed conflicts and situations of occupation, University Centre for International Humanitarian Law, Geneva, 1–2 September 2005, (last visited 30 January 2007).
5. As from October 2007, the UCIHL will become the “Geneva Academy of International Humanitarian Law and Human Rights”.
6. Article 6(1) of the International Covenant on Civil and Political Rights, 1966 (ICCPR)
7. Article 4(1) of the American Convention on Human Rights, 1969 (ACHR)
8. Article 4 of the African Charter on Human and Peoples' Rights, 1981 (ACHPR).
9. Article 2(2) of the [European] Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 (ECHR).
10. Report of the expert meeting, above note 4, Section B.3.b.
11. In this case the European Court of Human Rights stated that the right to life may be violated where states “fail to take all feasible precautions in the choice of means and methods of a security operation mounted against an opposing group with a view to avoiding and, in any event, to minimising incidental loss of civilian life”, Judgment of 28 July 1998, § 79.
12. Isayeva, Yusupova and Bazayeva v. Russia, Judgment of 24 February 2005, §§ 171 and 199.
13. Isayeva v. Russia, Judgment of 24 February 2005, §§ 187–189.
14. Judgment., at § 180
15. Isayeva v. Yusupova and Bazayeva v Russia, above note 12, at § 178.
16. Report of the expert meeting, above note 4, Section B.7.
17. Human Rights Committee, Communication No. R.11/45, Views, 31 March 1992, UN Doc. Supp. No. 40(A/37/40). § 13.2.
18. McCann v. United Kingdom, European Court of Human Rights, Judgment of 5 September 1995, § 200.
19. European Court of Human Rights., at § 205.
20. Güleç v. Turkey, European Court of Human Rights, Judgment of 27 July 1998, § 67.
21. European Court of Human Rights., at §§ 71–73.
22. Case of Armado Alejandre Jr. and Others v. Cuba (Brothers to the rescue), Inter-American Commission on Human Rights, Case No. 11.137, Report No. 86/99, 29 September 1999, §§ 37–45.
23. Nachova v. Bulgaria, European Court of Human Rights, Judgment of 6 July 2005.
24. European Court of Human Rights. § 95.
25. Adopted by the UN General Assembly in Resolution 45-166, 18 December 1999.
26. For example, European Court of Human Rights cases: Mahmut Kaya v. Turkey, Judgment of 19 February 1998, § 91
27. Isayeva v. Russia, above note 13, at § 209
28. African Commission on Human and Peoples' Rights case: Commission Nationale des Droits de l'Homme et des Libertés v. Chad, Com. 74-92, Decision of 11 October 1995, § 22
29. Inter-American Court of Human Rights cases: Mynra Mack Chang v. Guatemala, Judgment of 25 November 2003, §§ 152–158
30. Humberto Sanchez v. Honduras, Judgment of 7 June 2003, §§ 107–113
31. UN Human Rights Committee case: Baboeram v. Suriname, Com. No. 146, and 148–154/1983, Views, 4 April 1985, § 14.
32. Case of Myrna Mack Chang v. Guatemala, above note 25, at §§ 153–158.
33. Isayeva, Yusupova and Bazayeva v. Russia, above note 12, at §§ 209–213.
34. P. Alston, Report to the Human Rights Commission, 8 March 2006, UN Doc. E/CN.4/2006/53, §§ 25–26.
35. Report to the Human Rights Commission., at §§ 33–43.
36. Common Article 3 of the Four Geneva Conventions of 1949.
37. Article 1 of Additional Protocol II, 1977, refers to “dissident armed forces” and “other armed groups”.
38. Common Article 3 of the Four Geneva Conventions of 1949.
39. Article 13 of Additional Protocol II, 1977.
40. Y. Sandoz, C. Swinarski and B. Zimmermann (eds.), Commentary to the Additional Protocols of 1977, ICRC, Geneva, 1987, § 4789.
41. This is the approach taken in the ICRC Commentary when explaining this phrase in Article 51(3) of Additional Protocol I, 1977: “Once he ceases to participate, the civilian … may no longer be attacked … there is nothing to prevent the authorities capturing him in the act or arresting him at a later stage”. Commentary to the Additional Protocols of 1977., at § 1944.
42. Report of the expert meeting, above note 4, Section F.3–5.
43. This amalgamation of IHL and human rights is proposed by David Kretzmer in his article “Targeted killing of suspected terrorists: extra-judicial executions or legitimate means of defence”, EJIL, Vol. 16, no. 2 (2005), p. 171.
44. Report of the expert meeting, above note 4, Section F.6.
45. Draft Interpretative Guidance on the Notion of “Direct Participation in Hostilities”, Fourth Expert Meeting on the “Notion of Direct Participation in Hostilities”, 27–28 November 2006, Section B.II (on file with the author).
46. Commentary to the Additional Protocols of 1977, above note 34, at § 1944.
47. International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, ICJ Rep. 2004, §§ 102–114
48. the Case Concerning Armed Activities on the Territory of the Congo, Judgment, 19 December 2005, ICJ Rep. 2005, § 216
49. UN Human Rights Committee, General Comment 31 § 10
50. its Concluding Observations on the Second Periodic Report of Israel, 21 August 2003, § 11
51. European Court of Human Rights, Loizidou v. Turkey, Preliminary Objections, Judgment of 23 March 1995, §§ 63–64, and supporting Resolution DH 105 by the Council of Europe Committee of Ministers, adopted 24 July 2000.
52. See discussion of this point in Report of the expert meeting, above note 4, Section B.6.
53. Regulations annexed to the Hague Convention 1907, Articles 42–56
54. Fourth Geneva Convention 1949, Articles 1, 2, 4–34, 47–149.
55. Report of the expert meeting, above note 4, Section D.
56. Report of the expert meeting, above note 4, Section D.3(a).
57. Article 51(3) of Additional Protocol I, 1977.
58. Issue discussed in Report of the expert meeting, above note 4, Section D.4.
59. The test used by the International Tribunal for the former Yugoslavia is “protracted armed violence between governmental authorities and organized armed groups or between such groups within a State”, Prosecutor v. Dusko Tadic, ICTY Appeals Chamber, IT-94–1-AR72, § 70.
60. Definition used by the experts of the UCIHL's meeting, Report of the expert meeting, above note 4, Section E.
61. Concluding Observations of the Human Rights Committee: Israel, 21 August 2003, UN Doc. CCPR/CO/78/ISR, § 15.
62. The Public Committee against Torture in Israel and the Palestinian Society for the Protection of Human Rights and the Environment v. The Government of Israel, the Prime Minister of Israel, the Minister of Defense, the Israel Defense Forces, the Chief of the General Staff of the Israel Armed Forces, and Shurat HaDin - Israel Law Center and 24 others, Israeli Supreme Court Sitting as the High Court of Justice, Judgment of 11 December 2005.
63. Because according to the Court they do not belong to armed forces, neither can they be militias with such status, because they do not wear a fixed distinctive sign recognizable at a distance nor respect the laws and customs of war, Judgment, above note 52 at § 24.
64. Judgment., at § 39.
65. Judgment., at § 40.
66. Human rights treaty bodies have found states to have violated the right to life where governmental authorities knew, or should have known, that individuals are in real danger of being killed by non-governmental persons. See, for example, Kiliç v. United Kingdom, European Court of Human Rights, Judgment of 28 March 2000, § 63.
67. In the case of Velasquez Rodriguez v. Honduras, the Inter-American Court of Human Rights stated that “The State has a legal duty to take reasonable steps to prevent human rights violations” and “The same is true when the State allows private persons or groups to act freely and with impunity to the detriment of the rights recognized by the Convention”, Judgment of 29 July 1988, §§ 174 and 176
68. the UN Human Rights Committee has stated that “the positive obligations on States Parties on ensure Covenant rights will only be fully discharged if individuals are protected by the State, not just against violations … by its agents, but also against acts committed by private persons or entities”. It went on to list measures required to exercise due diligence which included preventive ones, General Comment 31, UN Doc.CCPR/C/21/Rev.1/Add.13(2004), § 8.
69. Report of the expert meeting, above note 4, Section E.2.
70. The majority of experts did not accept that incitement could be included in the definition of such acts, especially in the case of general incitement, as this would be subject to tremendous abuse. Report of the expert meeting., Section E.6.
71. Report of the expert meeting., Section E.5.
72. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, above note 40, § 106.
73. European Court of Human Rights: Issa v. Turkey, Judgment of 16 November 2004, §§ 68–74.
74. Brothers to the rescue, above note 21, at § 23: this case concerned the attack on a civilian plane in international air space
75. Disabled Peoples International v. United States, Application No. 9213, Admissibility Decision of 22 September 1987: this case concerned the bombing by US aircraft of a mental health hospital in Grenada before ground troops arrived. The case was declared admissible although a friendly settlement was subsequently reached.
76. Oxford Manual, adopted by the Institute of International Law on 9 September 1880, Article 8 (b).
77. L. Oppenheim, International Law, Vol. II, Disputes, War and Neutrality, ed. H. Lauterpacht, 7th edn, Longman's, Green & Co., London, 1952, p.341, § 110.
78. Instructions for the Government of Armies of the United States in the Field, 1863, Article 148.
79. John Westlake, International Law, Part II, War, Cambridge University Press, Cambridge, 1907, p.75.
80. The Law of War on Land, Part III of the Manual of Military Law, War Office, 1958, § 115.
81. The Manual of the Law of Armed Conflict, UK Ministry of Defence, Oxford University Press, Oxford, 2004, § 5.13.