Human dignity in the line of fire: the application of international human rights law during armed conflict, occupation, and peace operations.

• Author: Cerone, John

ABSTRACT

One of the most controversial and politically charged issues in current human rights discourse is whether and to what extent states are bound by human rights obligations with respect to the conduct of their armed forces abroad in armed conflict, occupation, and peace operations. Underlying the controversy are a number of complex legal questions, several of which have eluded definitive resolution. Chief among these questions is whether individuals affected by the conflict are among those whose rights states are obliged to secure. Answering these questions is further complicated in situations of collective action, giving rise to such questions as whether national contingents of multilateral operations retain their status as organs of their respective sending states. The purpose of this Article is to outline the issues underlying these questions and to provide a framework for answering them.

Despite continuing objections on the part of a handful of states, a consensus is evolving in favor of the view that human rights law applies in full alongside humanitarian law during times of armed conflict and occupation. While it is easy to see how human rights law would apply to a state's regular forces in a situation of internal armed conflict, the situation becomes more complex when states operate abroad, especially when acting through the context of collective action or with the assistance of private actors.

Human rights law, embedded in the inter-state structure of the international legal system, generally binds states and states alone. At the same time, states are abstract entities, incapable of acting as such. The conduct of states is the conduct of individuals whose acts or omissions are attributable to the state. Thus, the question of attribution not infrequently arises in disputes before human rights bodies.

The legal standards for attribution of the conduct of nonstate actors to the state require a fairly high level of state involvement or, alternatively, de facto state action by non-state actors accompanied by state authorization or disengagement. However, special rules may be evolving through the practice of universal and regional human rights mechanisms. These institutions have increasingly found degrees of state involvement not rising to the level established for attribution under the Articles on State Responsibility to be sufficient to render the state responsible for the acts of non-state actors.

The question of attribution is separate in principle from the content of international obligations. However, this distinction may become difficult to discern in the context of a failure of a state to fulfill positive obligations in relation to the acts of nonstate actors. The state is essentially in a constant state of omission. However, in order for an omission to constitute a basis of responsibility, there must be a duty to act. The question of establishing a duty to act will turn on the content of the relevant primary rule. Thus, in these circumstances, the issue of attribution collapses into the content of the primary rule.

The distinction between attribution of the conduct of nonstate actors and a state's responsibility for its omissions in relation to the conduct of non-state actors has special significance in the context of human rights law. Where human rights violative conduct is attributable to a state, the state will have breached an obligation, and responsibility will arise immediately. Where such conduct is not attributable to a state, the question of whether human rights law has been violated will be determined by the quality of the state's response to this conduct, generally governed by a "best efforts" standard.

Most of the jurisprudence of human rights bodies, which have greatly elaborated on the content of states' obligations under the various human rights treaties, has been developed in the context of alleged violations committed on the territory of the respective state party. Can these same standards be transposed onto the state's conduct abroad? In an effort to bring order to an otherwise chaotic array of judicial (and quasi-judicial) decisions, the Article provides a framework for delineating the scope of human rights obligations by examining three different parameters: the scope of beneficiaries, the range of rights applicable, and the level of obligation. Structuring an analysis of current jurisprudence around these three parameters reveals a trend toward recognizing varying levels of obligation. In particular, it may be that negative obligations apply whenever a state acts extraterritorially (at least with respect to intentional human rights violations, as opposed to indirect consequences), but that the degree of positive obligations will be dependent upon the type and degree of control (or power or authority) exercised by the state. This approach would preserve the integrity of the respective treaties and would vindicate the universal nature of human rights, which is proclaimed in the preambles of all of the human rights treaties considered in this analysis.

International judicial and quasi-judicial bodies have provided answers to many of the important legal questions described in the Introduction. Nonetheless, there remain significant gaps that provide ample opportunity for these institutions to further elaborate on what is required of states in situations of armed conflict and occupation.

TABLE OF CONTENTS I. INTRODUCTION II. THE RELATIONSHIP BETWEEN HUMAN RIGHTS LAW AND HUMANITARIAN LAW IN TIMES OF ARMED CONFLICT AND OCCUPATION III. THE NATURE OF HUMAN RIGHTS LAW: STATE RESPONSIBILITY, ATTRIBUTION, AND THE OBLIGATION TO ENSURE A. Attribution in the Context of Collective Action B. Attribution of the Conduct of Non-State Actors C. The Use of Private Contractors D. Attribution in the Context of Human Rights Law E. Caveat: Positive Obligations and the Attribution of Omission F. The Obligation to Respect Versus the Obligation to Ensure IV. THE APPLICATION OF HUMAN RIGHTS LAW IN RELATION TO INDIVIDUALS OUTSIDE THE STATE'S TERRITORY A. The Scope of Human Rights Obligations B. Scope of Beneficiaries 1. The Approach of United Nations and U.N.-Related Institutions 2. The Approach of Regional Human Rights Systems a. The Inter-American Commission on Human Rights b. The European Commission and Court of Human Rights c. Regionality 3. Customary Human Rights Law C. Range of Rights Applicable D. Level of Obligation E. Application in the Context of Armed Conflict, Occupation, and Peace Operations F. Collective Action V. CONCLUSION I. INTRODUCTION

In a February 2006 report, five U.N.-appointed human rights experts denounced the U.S. government for human rights violations committed against individuals detained at Guantanamo Bay. (1) These experts found that the nature and conditions of this detention regime gave rise to numerous violations of the International Covenant on Civil and Political Rights (ICCPR), as well as the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. (2)

In its reply, the U.S. government "profoundly object[ed] to the Report both in terms of process and of substance," citing "numerous glaring legal errors." (3) In its opinion, "[t]he Report's improper conflation of the law of war (also known as international humanitarian law) and international human rights law is a fundamental flaw that undercuts virtually all of the Report's conclusions." (4) In particular, the United States expressly rejected the application of the ICCPR to the detainees at Guantanamo Bay, asserting that their treatment was governed instead by humanitarian law and relevant provisions of domestic U.S. law. (5)

Whether and to what extent states are bound by human rights obligations with respect to the conduct of their armed forces abroad in armed conflict, occupation, and peace operations is one of the most controversial and politically charged issues in current human rights discourse. In the modern world, states are capable of mobilizing massive destructive power across the globe with increasing speed and efficiency. A crucial consequence of this enhanced military power is the increasing breadth of states' impact on the enjoyment of human rights in territories far beyond their physical frontiers.

In addition to traditional situations of armed conflict, individuals today may find themselves in the power of states in fairly complex configurations. States are increasingly operating through multilateral frameworks, e.g., through coalitions or under the auspices of United Nations (U.N.) or regional peace-keeping operations with increasingly expansive mandates. Further, states are now purporting to create zones beyond the reach of their human rights obligations. Detention facilities at Guantanamo Bay, on the high seas, and in secret locations raise controversial questions as to the nature and purpose of human rights norms. Indeed, efforts by powerful states to withdraw their military conduct from the purview of international law threaten to undermine hard-won victories achieved by the international human rights movement during the past sixty years.

Whether such conduct is beyond the reach of the relevant states' obligations under international human rights law (6) is a question very much alive before international courts and human rights mechanisms. Increasing numbers of cases involving alleged human rights violations committed in conflict situations outside the physical territory of the state are being adjudicated in various international fora. These institutions have already developed a varied jurisprudence, accepting extraterritorial application of human rights norms to the different scenarios to differing degrees.

Underlying the controversy are a number of complex legal questions, several of which have eluded definitive resolution. Chief among these questions is whether individuals affected by the conflict are among those whose rights states are obliged to...