The extraterritorial application of human rights to occupied territories.

Author:Ben-Naftali, Orna
Position:The Extraterritorial Application of Human Rights - Proceedings of the One Hundredth Annual Meeting of the American Society of International Law: A Just World Under Law

Once upon a time, in that by-gone era known as modernity, we had some clarity: boys were boys; girls were girls; the private sphere was distinct from the public sphere; war was distinct from peace; wars were fought between states and against combatants, as distinct from civilians. Wars were regulated exclusively by the jus in bello. Well, that world is no more. We have gradually come to admit that in the DNA of the human condition, war and peace are the twining strands of the helix; that it is becoming ever harder to sustain those comforting distinctions. Accordingly, we have come to adjust our laws. Part of this adjustment involves the co-application of International Humanitarian Law (IHL) and Human Rights Law (IHR).

A comprehensive discussion of this issue, involves three main points: (1) the justification for the co-application of both IHL and IHR in situations of armed-conflict in general, and of belligerent occupation in particular; (2) difficulties this co-application generates; and (3) development of modalities for co-application. Point 3 thus, moves from the question of whether both legal regimes apply (point 1) to the question of how to apply them, given the difficulties this co-application entails (point 2). Given time constraints, and particularly given the need to counter-argue the position presented by Michael Dennis, my discussion focuses only on points (1) and (2). Point 3 may well deserve a separate panel. Allow me to begin with the first point.

IHR APPLIES EXTRATERRITORIALLY

This application extends to situations of armed-conflict in general and to situations of occupation in particular: an occupying power, to the extent that it exercises potential or actual effective control over an occupied territory, bears responsibility for the HR of the inhabitants of the territory under both IHL--as the lex specialis--and IHR, which complements IHL either to fill gaps or for interpretation purposes. This is generally the case, and particularly so in cases of long-term occupations, as IHL, having envisaged a temporary--not a prolonged and certainly not an indefinite--occupation, is clearly insufficient. (1)

This position rests on three interrelated grounds: (2) (a) the principle of the universality of IHR; (b) the interpretation of the term "jurisdiction" in HR treaties, an interpretation informed by the principle of universality, and which substitutes the test of effective control for the concept of territory; and (c) overwhelming practice and jurisprudence of diverse international and other bodies, including the Supreme Court of Israel (HCJ). I shall elaborate briefly on each point.

The Principle of Universality

There has been a paradigmatic shift in the drive of international law from focusing primarily on the interests of the sovereign state in its security to focusing on human rights of individuals and minorities. (3) This new focus is not a lofty vision of some utopian law professors tending to prefer fantasy to actual thought. Rather, it derives from post cold-war political realities which include a new understanding of security itself. It is none other than the US that takes the lead in arguing for the legality of humanitarian intervention, that is, for expanding the jus ad bellum rules to authorize the use of force in the light of human rights and humanitarian considerations: the latter, thus, have become an aspect of security and are no longer perceived as a distinct branch of law standing in dialectical opposition to the use of force. It does seem somewhat curious that force used with these considerations in mind should be exempt from the application of the very norms it is supposedly being exercised to protect.

The principle of the universality of HR has infiltrated the hitherto distinct discourses not only of the jus ad bellum, but also of the jus in bello, appropriately re-named IHL: whereas traditionally IHL provided the rules...

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