Complementary Nature of the two bodies of law

International Human Rights Law (IHRL) and International Humanitarian Law (IHL) are two distinct but complementary bodies of international law that share a common purpose: protecting individuals. While IHRL applies primarily in peacetime but also in times of armed conflict, IHL applies specifically during armed conflict. The relationship between these two branches of law is not one of hierarchy or mutual exclusion, but rather of mutual reinforcement and complementarity.

IHRL and IHL in Different Contexts

• IHRL: Its primary purpose is to protect the individual from state power and ensure fundamental freedoms and entitlements. It applies at all times and in all circumstances, whether in peace, states of emergency, or armed conflict. States have obligations towards all individuals within their territory and subject to their jurisdiction.
• IHL: Its primary purpose is to regulate the conduct of parties to an armed conflict and to protect persons not or no longer participating in hostilities. It applies only in situations of armed conflict (both international and non-international). IHL aims to mitigate the suffering caused by war by balancing military necessity with humanitarian considerations.

How They Complement Each Other

The complementary nature means that both bodies of law can apply simultaneously in situations of armed conflict, and they should be interpreted in a way that is mutually consistent. They provide different but overlapping layers of protection:

• Different Focus: IHL focuses on conduct during conflict (means and methods of warfare, protection of civilians and combatants *hors de combat*), while IHRL focuses on the relationship between the state and individuals (specific rights like freedom from torture, right to liberty, fair trial).
• Overlapping Protections: Many rights are protected under both bodies of law, such as the right to life, the prohibition of torture, and the right to a fair trial. In times of armed conflict, both IHRL and IHL standards apply. Where both apply, the more specific rule often takes precedence (lex specialis). In many cases, IHL provides the lex specialis for conduct during hostilities (e.g., targeting rules), while IHRL remains the *lex generalis* applicable alongside IHL, particularly regarding law enforcement functions or the treatment of persons outside active hostilities.
• Mutual Interpretation: The interpretation and application of one body of law can inform the other. For example, the prohibition of torture is absolute under both IHRL (e.g., Article 7 ICCPR, Article 3 ECHR, Article 5 African Charter) and IHL (e.g., Common Article 3 of the Geneva Conventions). State practice and jurisprudence under IHRL regarding torture reinforce the absolute prohibition under IHL. Similarly, IHL principles regarding detention and fair trial in armed conflict situations can inform the application of IHRL due process rights in those specific circumstances.

The International Court of Justice (ICJ) has affirmed the concurrent applicability of IHRL and IHL during armed conflict, stating that "the protection offered by humanitarian law does not cease in case of armed conflict" and that IHRL "continues to apply, albeit subject to a regime of derogation" in specific circumstances (*Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004*).

Therefore, when examining a situation of armed conflict from a legal perspective (e.g., in parts of Jammu and Kashmir, or in states facing internal conflict), it is essential to consider the protections afforded by both IHRL and IHL. The state's conduct is assessed against standards from both regimes, which are meant to reinforce, not undermine, each other's protections for individuals.

Limited Derogation from Human Rights during Armed Conflict

While International Human Rights Law applies at all times, international treaties like the ICCPR (Article 4) and ECHR (Article 15) include provisions allowing States Parties to derogate from certain human rights obligations in strictly defined circumstances, such as times of public emergency which threatens the life of the nation, the existence of which is officially proclaimed. Armed conflict can constitute such a public emergency. However, the ability to derogate is not unlimited; it is subject to specific conditions and applies only to certain rights.

Non-derogable rights (e.g., prohibition of torture)

Even during a public emergency threatening the life of the nation, including armed conflict, certain human rights are considered so fundamental that states are not permitted to suspend or derogate from them. These are known as non-derogable rights.

Under Article 4(2) of the ICCPR, the following rights are explicitly listed as non-derogable:

• The Right to Life (Article 6): Prohibition of arbitrary killing.
• Freedom from Torture or Cruel, Inhuman or Degrading Treatment or Punishment (Article 7): Absolute prohibition.
• Freedom from Slavery and Servitude (Article 8, paras. 1 and 2): Prohibition of slavery.
• Freedom from Imprisonment for Inability to Fulfil a Contractual Obligation (Article 11).
• Prohibition of Retrospective Criminal Laws (Article 15).
• Right to Recognition as a Person before the Law (Article 16).
• Freedom of Thought, Conscience, and Religion (Article 18).

Other human rights treaties also identify non-derogable rights (e.g., Article 15(2) ECHR lists similar non-derogable rights). The prohibition of torture (Article 7 ICCPR), for instance, is absolute and applies equally in peacetime, states of emergency, and armed conflict. No circumstance, including national security or counter-terrorism efforts, can ever justify torture or ill-treatment. This aligns perfectly with the absolute prohibition of torture under IHL (e.g., Common Article 3, Geneva Conventions).

These non-derogable rights represent the absolute minimum standards of human treatment that must be respected by the state at all times, providing a critical layer of protection even in the most challenging circumstances of armed conflict or emergency.

Derogable rights

Human rights that are not listed as non-derogable can potentially be subject to derogation by a State Party to the ICCPR or ECHR during a public emergency that threatens the life of the nation. However, this power to derogate is not unfettered and must meet strict conditions (Article 4(1) ICCPR; Article 15(1) ECHR):

• Public Emergency: There must be a genuine public emergency threatening the life of the nation.
• Officially Proclaimed: The existence of the emergency must be officially proclaimed.
• Strictly Required: The measures taken by way of derogation must be strictly required by the exigencies of the situation. This imposes a test of necessity and proportionality – the measures must be necessary to meet the specific threat posed by the emergency, and they should not be more severe or prolonged than required.
• Not Inconsistent with Other International Obligations: The measures must not be inconsistent with other obligations under international law, including IHL. This is a critical link; even if a state derogates from an IHRL right, its actions must still comply with applicable IHL rules during armed conflict. For instance, measures affecting liberty (derogation from Article 9 ICCPR) must still comply with IHL rules on detention of combatants or civilians in armed conflict.
• No Discrimination: The measures must not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.
• Notification: The State Party must immediately inform other States Parties through the UN Secretary-General (for ICCPR) or Council of Europe Secretary General (for ECHR) of the provisions from which it has derogated and the reasons for such derogation. It must also notify when the derogation ceases.

Examples of rights that might be subject to lawful derogation, if the strict conditions are met during an armed conflict or emergency, include freedom of movement (ICCPR Article 12), freedom of assembly (ICCPR Article 21), or aspects of fair trial rights beyond the absolute minimums (ICCPR Article 14). However, even for derogable rights, the core content and essential elements often remain applicable, and any restrictions must still be lawful, necessary, and proportionate in a democratic society in accordance with the standard limitation clauses found within many rights (e.g., Article 19(3) ICCPR, Article 10(2) ECHR). The derogation mechanism allows for temporary suspension *beyond* these standard limitations, but only in the face of a dire emergency.

The interplay between derogation under IHRL and the constant application of IHL during armed conflict is complex. Generally, if IHL provides a specific rule for a situation (e.g., the conditions for detention of prisoners of war), that rule will apply. IHRL continues to provide a background layer of protection, particularly regarding actions outside the immediate scope of hostilities or regarding persons protected by IHL. The principle is to ensure the highest possible standard of protection for individuals, drawing from both bodies of law.

Jurisdiction of Human Rights Courts over actions during armed conflict

A key question that arises at the intersection of International Human Rights Law (IHRL) and International Humanitarian Law (IHL) is the extent to which actions taken by a State during an armed conflict can be reviewed by international human rights courts or monitoring bodies. This involves determining whether the conduct occurring during the conflict falls within the jurisdiction of the human rights treaty body or court.

Concept of State Jurisdiction under IHRL

Human rights treaties typically bind a State Party to respect and ensure the rights set forth in the treaty to all individuals within its territory and subject to its jurisdiction. While "within its territory" is straightforward, the phrase "subject to its jurisdiction" allows for the possibility of extraterritorial application of human rights obligations.

Human rights courts, particularly the European Court of Human Rights (ECtHR) and the Inter-American Court of Human Rights (IACtHR), have developed jurisprudence on when a state's actions outside its national territory can still fall under its human rights jurisdiction, thus triggering its human rights obligations. This is particularly relevant for states involved in armed conflicts abroad.

The 'Effective Control' Test

The ECtHR, in cases like *Banković and Others v. Belgium and 16 other NATO States* (2001), initially adopted a restrictive approach to extraterritorial jurisdiction, generally limiting it to situations where a state exercises effective control over an area outside its territory, or over individuals abroad through the acts of its agents (the "authority and control" test). However, subsequent landmark cases, particularly concerning the actions of UK forces in Iraq, refined and expanded this understanding:

• *Al-Skeini and Others v. the United Kingdom* (2011): The Court found that the UK's extraterritorial jurisdiction under the ECHR extended to deaths occurring during security operations conducted by UK forces in a specific area of Iraq (Basra) over which the UK, as an occupying power (or a state exercising equivalent authority and control), exercised effective control. This established that effective control over *an area* can create extraterritorial jurisdiction for all acts within that area.
• *Al-Jedda v. the United Kingdom* (2011): The Court held that the detention of an individual by UK forces in Iraq fell within the UK's jurisdiction under the ECHR, even though the individual was detained in a facility where the US also had a presence. The UK exercised sufficient authority and control over the individual's detention to trigger its ECHR obligations. This reaffirmed that effective control over *an individual* can establish extraterritorial jurisdiction.

Similar concepts of extraterritorial jurisdiction exist in the Inter-American system and are debated in the context of the ICCPR, meaning that states cannot necessarily evade their human rights obligations simply by operating beyond their borders.

Applying IHRL Standards During Conflict

Once jurisdiction is established, the human rights court will assess the state's conduct against the standards set by the relevant human rights treaty. In situations of armed conflict, this assessment must also take into account the concurrent applicability of IHL. The principle of *lex specialis* is often invoked, meaning that in specific situations governed by detailed IHL rules, those IHL rules may provide the relevant standard for assessing the state's compliance, even under a human rights treaty.

For example, while the right to life (IHRL) prohibits arbitrary killing, IHL permits the use of lethal force against combatants and persons directly participating in hostilities, subject to strict rules. In such specific instances of hostilities, the lawfulness of killing might be assessed primarily under IHL rules on targeting, though the underlying right to life remains relevant and provides a framework for interpreting IHL or regulating acts not covered by IHL.

Therefore, human rights courts can and do exercise jurisdiction over state actions during armed conflict, assessing compliance with IHRL, while often considering and applying relevant IHL principles where they provide the specific standard of conduct for the situation in question.

Specific Human Rights relevant during conflict

Although IHL provides a detailed legal framework for regulating armed conflict, several specific human rights remain particularly relevant and continue to apply alongside IHL. These rights provide a crucial baseline of protection for individuals during conflict, reinforcing and complementing the rules of IHL.

Right to life, prohibition of torture, fair trial

These three rights are among the most critical during armed conflict and highlight the interplay between IHRL and IHL:

Right to Life (IHRL) and the Use of Force (IHL)

The Right to Life (e.g., Article 6 ICCPR, Article 2 ECHR) is a fundamental human right that applies during armed conflict. However, IHL specifically regulates the conduct of hostilities, including who may be lawfully targeted with lethal force. In situations amounting to armed conflict, the targeting rules of IHL (distinction, proportionality, precaution) are considered the *lex specialis* governing lethal force during hostilities. Targeting a combatant or a person directly participating in hostilities in accordance with IHL is generally not considered an arbitrary deprivation of life under IHRL.

• During Hostilities: The lawfulness of killing is primarily assessed under IHL. A state's compliance with IHL rules on targeting is key to determining if a death in combat was lawful.
• Outside Hostilities: For actions taken by state agents (like police or security forces) outside the context of active hostilities, the more stringent IHRL standards on the use of lethal force typically apply. This requires that the use of force is strictly necessary and proportionate to protect life, and lethal force should only be used as a last resort.
• Accountability: Even if a killing is lawful under IHL targeting rules, the state still has IHRL obligations, such as the duty to investigate potentially unlawful deaths and ensure accountability for violations.

The ECtHR has held that even when IHL is the primary law applicable during hostilities, the state's obligation under Article 2 ECHR (Right to Life) to investigate deaths remains applicable.

Prohibition of Torture and Cruel, Inhuman or Degrading Treatment (IHRL & IHL)

The Prohibition of Torture (e.g., Article 7 ICCPR, Article 3 ECHR) and other forms of ill-treatment is absolute and non-derogable under IHRL. It applies equally in peacetime and during armed conflict. This absolute prohibition is mirrored and reinforced by IHL (e.g., Common Article 3 to the Geneva Conventions prohibits "mutilation, cruel treatment and torture" and "outrages upon personal dignity, in particular humiliating and degrading treatment").

• Absolute Nature: No circumstances whatsoever, including armed conflict, national security, or orders from superiors, can be invoked to justify torture or ill-treatment.
• Concurrent Application: Both IHRL and IHL prohibitions apply concurrently. Conduct amounting to torture or ill-treatment during armed conflict constitutes a violation of both bodies of law.
• Accountability: Violations of the prohibition of torture in armed conflict can amount to war crimes under international criminal law, leading to individual criminal responsibility, in addition to state responsibility under IHRL and IHL.

This absolute prohibition is a powerful example of how IHRL provides a non-negotiable minimum standard that persists even in the extreme circumstances of war.

Right to a Fair Trial (IHRL & IHL)

The Right to a Fair Trial (e.g., Article 14 ICCPR, Article 6 ECHR) is a cornerstone civil right that applies, albeit with potential modifications or derogations (where permitted and strictly necessary), during armed conflict. IHL also contains detailed rules regarding judicial guarantees, particularly for persons deprived of liberty in armed conflict (e.g., prisoners of war, internees in international armed conflict, and persons detained in non-international armed conflict). These IHL rules provide specific fair trial guarantees relevant to their status and the context of conflict.

• Detention: While IHL governs the grounds and conditions for detention during armed conflict (e.g., for security reasons), IHRL standards regarding the right to challenge the legality of detention (habeas corpus type review, Article 9(4) ICCPR) remain relevant, although possibly subject to lawful derogation meeting strict conditions. However, even if derogated, the minimum procedural requirements for lawful detention must still be met, drawing from both IHRL and IHL.
• Criminal Prosecution: Persons detained in armed conflict can be prosecuted for war crimes or other offences. In such cases, the full panoply of fair trial rights under IHRL (Article 14 ICCPR) and the detailed judicial guarantees under IHL (e.g., Fourth Geneva Convention Articles 64-76) apply concurrently. IHL guarantees are often seen as specific applications of the broader IHRL principles in the context of armed conflict, ensuring essential safeguards like the presumption of innocence, legal representation, and the right to appeal.
• Non-Derogable Guarantees: Certain minimum fair trial guarantees are often considered non-derogable even during emergencies (though not always explicitly listed in Article 4(2) ICCPR), such as the right to be recognised as a person before the law, protection against *ex post facto* laws, and potentially core elements necessary for any trial to be considered "fair".

In essence, during armed conflict, IHRL continues to apply as the general law, while IHL applies as the specific law of armed conflict. Where rules conflict, IHL, as the *lex specialis*, may take precedence *for the specific conduct it regulates*, but IHRL continues to provide a crucial layer of protection, particularly through its non-derogable rights and as a framework for interpreting and applying IHL standards. The goal is the maximum possible protection for individuals in the challenging environment of conflict, drawing on the strengths of both legal regimes.