Direct Participation in Hostilities and the Interoperability of the Law of Armed Conflict and Human Rights Law

AuthorFrancoise J. Hampson
PositionDepartment of Law and Human Rights Centre, University of Essex, United Kingdom
Pages187-213
VIII
Direct Participation in Hostilities and the
Interoperability of the Law of Armed Conflict
and Human Rights Law
Fran^oise J. Hampson*
I. Introduction
There is an ongoing debate as to how to make the law of armed conflict
(LOAC) and human rights law (HRsL) interoperable. The International
Committee of the Red Cross's (ICRC's) Interpretive Guidance on the Notion ofDi-
rect Participation in Hostilities under International Humanitarian Law has compli-
cated that process. 1This article seeks to explain why there is aproblem and to
propose possible solutions. It only deals with the specific issues of targeting and
opening fire. It does not address the issue of detention. 2Before embarking on that
examination, it is first necessary to identify arange of assumptions and assertions
on which the analysis will be based. Certain distinctions within LOAC will then
be explored, because of their impact on the rules on targeting. The article will
then examine how the decision to open fire is analyzed under HRsL. Options
available to make LOAC and HRsL interoperable will be considered before finally
suggesting asolution.
*Department of Law and Human Rights Centre, University of Essex, United Kingdom.
DPH and the Interoperability ofLOAC and Human Rights Law
IT. Assumptions and Assertions
This section identifies certain issues relevant to the discussion that, for reasons of
length, it will not be possible to discuss in any detail.
The Applicability ofLOAC Does Not Have the Effect of Making HRsL
Inapplicable3
There is overwhelming evidence to support this general proposition, including two
advisory opinions and one judgment in acontentious case of the International
Court of Justice (ICJ).4The ICJ has suggested that, when both bodies of rules are
applicable, LOAC is the lex specialist It is unclear as yet both precisely what this
means and also how it is to be operationalized.6While the United States and Israel
have argued that the applicability of LOAC displaces that of HRsL, it appears un-
likely that they can claim to be "persistent objectors."7
One of the most important implications of the co-applicability of LOAC and
HRsL is that bodies charged with monitoring compliance with HRsL would appear
to have the competence to assess whether akilling was abreach of HRsL, even if
they have to interpret HRsL in the light ofLOAC. The bodies in question include
not only monitoring mechanisms that owe their authority ultimately to the United
Nations Charter, such as the UN Special Procedures mechanisms,8but also moni-
toring bodies established under treaties. Those likely to have the most impact in
practice are treaty bodies, which can receive individual complaints and deliver
binding legal judgmentsin other words, the three regional human rights courts. 9
This does not mean that the opinions of other bodies, notably the Human Rights
Committee under the International Covenant on Civil and Political Rights, are not
important. 10 The jurisdiction of the regional human rights courts may be limited
on other grounds, most notably the uncertain scope of the extraterritorial applica-
bility of HRsL.
The Scope of the Extraterritorial Applicability of HRsL
Unlike the first issue, this question is far from settled. 11 It appears to be clear that
States have to apply their human rights obligations in territory that they occupy, at
least in the case of stable or settled occupation. 12 It is also well established that
States have to apply their human rights obligations to persons in their physical
control, such as detainees. 13 What is not clear is the extent to which aState's hu-
man rights obligations apply to acts within the control of State agents where the
harm to the victim is foreseeable but the victim is not within their physical control.
Such asituation arises when the armed forces of State Ain State Bdeliberately fire
at Xfrom adistance of eight hundred yards or intentionally strike abuilding in
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