Dans le document The International Legal Framework for Stability Operations : When May International Forces Attack or Detain Someone in Afghanistan? (Page 28-37)

If both IHL and IHRL apply and provide differing answers in a given situation, the tex specialis principle detennines which of the two prevails.114 Il must however be stressed that if (for whatever reason) one of the Iwo branches does not apply to certain conduct, no [ex specialis issue arises.

Thus, if the


is cotrect in considering that IHRL does not apply extraterritorially or if IHRL does not create obligations for armed groups, as the prevailing opinion goes,115 theirconduct isgoverned exclusively by IHL.

111 Ireland v. United Kingdom, 25 Eu/'. Ct. HR. (Ser. A) (1978), paras. 202-24.

112 Aksoy v. Turkey, [1996-VI] Eur. Ct. HR. 2260, paras. 78, 83 and 84.

113 For a list of practice pointing to the non-derogability of habeas corpus, see ICRC Custommy Law Study, supra note 60, at 350-51 and accompanying footnotes (including General Comment 29, para. 16, supra note 110). Sec a/sa D. Cassel, "Security Detention under International Ruman Rights and Humanitarian Law", [2008] J. Crim. L. &

Crimino!ogy; ICRC Guidelines, supra note' 79, at 387. Although that decision was purely based ,upol1 the US Constitution, one could also mention the decision of the US Supreme Court in Boumediene et al. V. Bush et al., 128 S.Ct. 2229 (June 12,2008), Nos. 06-1195 and 06-1196, that States consider habeas corpus to coyer eyen persans they consider enemy fighters in what they consider an armed conflict.

114 ICI, Adyisory Opinion on the Legality of the Threat or Use ofNuclear Weapons, [1996]

I.C] Rep. 226, para. 25; Leg{ll Consequences of the Construction ofa Wall, supra note 13, para. 106.

115 See N.S. RodleYI "Can Anned Opposition Groups Violate Human Rights Standards?", in Human Rights in the Twenty-First Century 297 (!CE. Mahoney & P. Mahoney, eds., 1993); and para. 47 of the Report of the Consultative Meeting on the Draft Basic Principles and, Guidelînes on the Rigllt ta a Remedy and Reparation for Victùns of Violations of International Human Rightsand Humanitarian Law, UN ESCOR, 59th Sess., UN Doc. E/CNA/2003/63 (Dec. 27,2002).' See for a more progressive view A.

Clapham, Human Rights Obligations ofNon-StateActors 271-99 (2006).


A. The Determination of the Lex Specialis

1 have tried elsewhere ta explore what the principle "lex specialis derogat legi generaliH means in generaland in particular conceming IHL and IHRL.'16 The principle does not indicate an inherent qualily in one branch of law or of one of its rules. Rather, it determines which rule prevails over another in a particular situation, Il? Each case must be analyzed individually.l18

Several factors must be weighed ta determine which rule, in relation ta a certain problem, is special. Specially in the sense of logic implies that the norm that applies la certain facts must give way ta the norm that appHes ta those same facts as weU as ta an additional fact present in the given situation. Belween Iwo applicable rules, the one which has the larger

"common contact surface area"1l9 with the situation applies. The nonn with the scope of applicàtion that enters completely into that of the other norm must prevail, otherwise·it would never apply~ 120 It is the nonn with the more precise or narrower material and/or persona! scope of application that prevails.l2' Precision reqnires that the norm addressing explicitly a problem prevails over the one that treals it implicitly, the one providing the advantage

116 M. Sasso li, "Le Droit International Humanitaire, une Lex Specialis par Rapport aux Droits Humains?", in Les Droits de ['Homme et la Constitlltion, Etudes en ['Honneur du Professeur Giorgio Malinverni 375-95 (A. Auer, A. Flückiger & M. Hottelier, eds., 2007).

117 M. Koskenniemi, "Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law", Report of the Study Group of the International Law Commission, UN Doc. AlCN:4/L.682, para, 112 (2006); H. Krieger,

"A Conflict of N6nns: The Relationship between Rmnanitarian Law and Ruman Rights Law in the ICRC Customary Law Study", 11 J. Conflitt & Security L. 265, at 269 and 271 (2006); P. Aiston et al., "The Competence of the UN Human Rights Cauncil and its Special Procedures in relation ta Anned Conflicts: Extrajudicial Executions in the 'War on Terror"', 19 Eur. J. Int" L. 183, at 192 (2008); Report of the International Law Commission, Fifty-Sixth Session, UN Doc AJ59JI0, para. 304 (2004).

118 A. Lindroos, "Addressing Nonn Conflicts in a"Fragmented System: The Doctrine,ofLex Specialis", 74 Nordic J. Int'! L. 27, at 42 (2005).

119 These tenns were first used by M>E. Walker, LL.M. Student at the Geneva Academy of International Humanitarian Law and Human Rights in my 2008 IHL course.

120 K. Larenz, Methodenlehre der Rechtswissenschaft267-68 (6th ed., 1991).

121 N. Bobbio, "Des Critères pour Résoudre les Antinomies", in Les Antinomies en Droit:

Etudes 244.(C. Perelman ed., 1965).



of detail over the other's generality ,122 and the more restrictive norrn over the one covering the entire problem but in a less exacting manner.123

A less formai factor - and eq\lally less objective - that pennits detennination of which of two rules apply is the confonnity of the solntion:

ta the systemic objectives of the law.l " Characterizing this solution as "lex specialis" perhaps constitutes misuse of language. The systemic arder of intematlonal law is a normative postulate founded upon value judgments.l25

·fu particular when formai standards do not indicate a clear resuIt, Ibis teleologieal criterion must weigh in, even though it allows for personal

preferences.12~ .

The principle tr.ditionally deals with antinomies between conventional rules. Whether· it also applies to the relationship between two customary rules is less clear. Theoretically, this is not the case, if one adopts a traditional underslanding of customary law. The customary rule applicable to a certain problem derives from the practice and opinio juris of States in relation to that problem. In relation to the same problem, there cannat be a customary "IHRL" and another customary


mie. One always focu~es on Ihe practice and the opinio juris manifested in relation to problems as similar as possible to the one 10 be resolved. This appears 10 be the approach of the ICRC. which refers, in its CustomQ1Y Law Study, to a vast array of practice in human rights including outside of armed conflîcts.127 ln practice, however, when one looks for a customary mle, one often refers ta a text, whether a treaty or another instrument codifying customary law or one !hat instigated the development of a customary rule,I2s or even a doctrinal text.

Theri, one specîfic problem could be covered by two cOl1tr~dictory lexts, both deduced from State practice. The choiee between these two lexIs is, in my opinion, govemed by the same princip les as the choice between two treaty rules. If the State practice clarifying which of the two rules prevails in the given situation js nat sufficiently"dense, one must discover by the usuai

122 Seefor examplcs S.A. Sadat-Akba, MClhods ofResolvi"g COf/fliets Befuteen Trealies 124

(2003). .

123 See, e.g. the BCtHR concerning the relationship bctween Arts. 13 and 5(4) of the ECHR.

Brannigan and McBride v. DK., Judgmentl 258 Eur. Ct. H.R. (Ser. A) at 57, para. 76 (1993).

124 Koskenniemi, sup"a note t 17, at para. 107.

125 Krieger, supra note 117, at 280.

126 Bobbio, supra. note 121, at 240-41. See alsa W. 'Jenks, "The Confliet of Law~Making Treaties", 30 B.Y.B.1.L. 450 (1953).

127 [CRe Cuslomary Law Study, supra note 60, at 299-383.

128 M. Sassoli, 8edeutu11g e/ner Komfikationfiir das allgemeille Vôlkcrrecht -mit heso!"derer Betrachnmg der Regeln mm Schulze der Zivilbev6/kenmg vor den Auswirlnmgen von Feindseligkeitcll (1990). .




methods which of the Iwo rules, derived from the practice analyzed tram different perspectives, constitutes the lex specialis.

B. On Attacks

FiISt, il must be empbasised that there is a good deal of common ground betweea IHL and IHRL. In a "battlefield-like" situation, arrest is virtu.lly .Iways imp~ssible without putting tbe govemment forces into disproportionate danger. A fighter presents a great threat ta life even if that tbreat consists of attacks againSt arrned forces. The immedi.cy of that thre.t might be based not only on what thetargeted fighter is ex:pected ta do, but aiso on bis or her previous behaviour. J29 Thereforc, even lUlder IHRL, in such situations, lethal force could be used. On the other hand, the life of a fighter who is hors de combat is equally protected by bath branches.

Jt is where the solutions of the Iwo branches actually c.ontradict each other that the applicable rule must be deterrnined under the lex specialis principle. The quintessential example·of such a contradiction is the Taliban or AI Qaeda leader .ttending a secret meeting in Kabul..Many interpret!HL as pennitting international forces ta sboot ta kiU sinee he is a fighter, but this is controveISial. IHRL would clearly say be must be arrested and a graduated use of force must be employed, but ·this conclusion is based upon precedents ..

whicb arase in peacelime and IHRL is always more flexible according ta the situation.

In my view, sorne situations contain more specificities of the situation for which the IHL mie was made and sorne ,situations more facts for which human rights were typically made. There is a sliding scale l30 be!ween the lone Taliban leader in Kabul and the Taliban fighter engaged in a nearly conventional battle with international forces in the, mountains around Khost.

It is impossible to provide a "one size fits aU" answer; as shawn above, the lex specialis principle does not determine priorities be!ween Iwo rules in the abstract, but offers a solution ta a concrete case in which cornpeting rules lead la different results. The famous dictum by the lCJ that "[tlhe test of what constitules an arbitrary deprivation oflife ... must be delerrnined by the applicable lex specialis, namely the law applicable in aniIed conflicts"l3l should not be misunderslood. It has 10 be read in the contexl of the opinion, 132 in which the lCJ had ta determine the·legality in abstracto of the use of a certain weapon.

129 DPH 2005 Report, supra note 51, al 52.

HO UCIHL Report, supra note 52, at 38; Severa] experts in DPH 2005 Report, ibid., at 51-52.

1)1 Legality of the Threat or Use ofNuclear Weapons, supra note 114, at para. 25.

132 Alston, supra note 117, at 183-209, 192-93.


Such a flexible solution, which makes the actual required behaviour depend upon the situation at hand, is dangerous, in particular regarding attacks, where it literally deals with a question of death and life and where it has ta· be applied by every soldier and leads ta irreversible results. It is therefore indispensable ta detennine factors which make either the !HL: of international armed confliets rule or the IHRL rule prevail.

The existence and extent of control by govemmental and international forces over the place 133 where the attack occurs points towards IHRL as lex speciàlisl34 Even if !HRL obligations under the right ta life existed, for a given Slate, beyond territory that is· under the control of that State, control over the place where the attack oecurs is a factor making !HRL prevail over

!HL. The latter was made for hostilities against forces on or beyond the frontline, i.e., in a place that is not under the control of those who attack them, while law enforcement concerns persans who are under the jurisdiction of those who act. In traditional confliet situations this corresponds ta the question of how remote the si tuation is from llie battlefield,135 although fewer and fewer contemporary eonfliets are characterized by frontlines and battlefields, What then eonslitutes suffieient control ta warrant IHRL predominating as the lex specialis? ·International forces could not simply argue thal the presence of a solitary rebel or even li group ofrebels indicates.that in facl they are'not fully in control of the place and therefore act under !HL as lex specialis. The question is r.at11er oné of degree. If the international forces could effeet an arrest (of a Taliban) without being overly coneerned about interference by other Taliban in tha!

operation, then it bas sufficient control over the place ta make hum.n rights prevail as lex specialis.

This criterion of controlleaves the solution a little more open in an area which is under firm control of neither side (such as many places in Afghanistan). Even where the strict requirements of necessity of lliRL are not fulfilled (if they are, bath branches lead to the same result), the impossibility ta arrest the fighter, ". the danger illherent in an attempt to arrest the fighter137 and the danger represented by the fighter for govemment

133 If the very person targeted is under control, both branches prohibit lll1y summary execution.

134 Doswald-Beck, supra note 47, at 897; UCIHL Report, supra note 52, al 36; Kretzmer, supra note 53, at 203; C, Droege, "The Interplay between International Humanitarian Law and International Hurnan Rights Law in Situations of Armed Confliet", 40 Israel L.

Rey. 347 (2007).

135 Id. '

136 Targeted Killings Case. sI/pra Dot~ 57, at para. 40; Do!>Wald-Beck, supra Dote 47, at 891.

137 Targeted Kil/ings Case, supra note 57, id.


and international forces and civilians as weU as the inunediacy of this danger13' may lead to the conclusion that IHL, is the lex specialis in that situation, These factors are interlinked with the elements of control described above, In addition, wh.re neither party has clear geographical control,


my yiew, the higher the degree of certainty th.t the target is actually a fighter, the easier the IHL approach appears as lex specialis.139 Attacks are lawfuJ against persans who are actuaUy fighters,· while Law enforcement is by definition directed against suspects.

The main weakness of such a flexible .ppro.ch is its practicability. If the answer depends on the specific situation, how can a soldierknow what to apply? This problem can only be solyed by precise instmctions and orders for every operation and every sortie. In addition, on the international Ievel, guidelines might be developed in discussions between !HL and !HRL experts, Law enforcement practitioners and representatives of the military.

Logically, (former) fighters should also be involved, in particular if the guidelines equaUy cover conduct of such groups,J" ta ensure that they can' be applied in praetice.

C. On Detention

When comparing the ru/es of !HL of non-international armed confliets on proeedural guarantees for persans arrested with those of


the former do not exist while, except for the admissible extent of derogations, the latter are clear and weU deyeloped by jurisprudence. The latter must therefore prevail. They are more precise and more restrictive. The ICRC Customary Law Study appeàrs to. adopt this approach when it interprets thealleged IHL rule prohibiting the arbitrary deprivation of liberty ·through the Lens of

138 Kretzmer, supra note 53, at 203.

139 Guerrero Case, supra note 96, at para. 13.l~13.3; Targeted Killings Case, supra note 57, at para. 40; O. 8en-Naftali & K.R. Michaeii, '''We must Not Make a Scarecrow of the Law': A Legal Analysis of the Israeli Poliey of Targeted Killings", 36 Cornelllnt'J L. J, 233, at 290 (2003-2004).

140 In relation with anned gioups, it is Dot sure that the lex specialis is the same as for government,soldiers. 'Bath parties must be equal as far as the applicable IHL is concemed.

but they are Dot oqual as far as IHRL is concemed. Even if the latter is addressed ta non·

State actors, il can only require from {hem certain condilct towards persons who are in an area under their control. In addition, aState has the alternative ofJaw enfarcement, and tberefore ta plan an operation ip sucb a way sa as ta ma~imize the passibi1ity ofb.cing

·able to acrest persons, while the question whether anned group~ ma.y legislate to make their enemies' conduct illegal or wbether they may enforce existing leg}slation is coutroversial.


IHRL.I41 Unlike a persan ta be targeted, for whom a flexible approach was advocated above, a detainee is moreover clearly under control of those who detain him or her. It may be added that the result is not 80 different from that . of an application by analogy of the guarantees foreseen by Convention IV for civi]ians in international apned confIicts, the only difference being that under IHRL a court must dedide, while under JIlL an administrative body is sufficient.142 Under IHRL too, howev.er, the court does not necessarily have ta be a fully independent and impartial·tribunal that could try a persan, but it must have a judicial character and it may only take decisions after judicial, adversarial proceedings providing the individual guarantees appropriate ta the teasons .of the internment.in question.

The only exception where


must prevail, as it was specifically made for armed conflicts and foresees a mIe, exists when either an agreement between the parties or a unilateral recognition ofbelligerency makes the full· regime of POWs applicable. In that case detained fighters have the disadvantage of a lack of access ta habeas corp"s (althaugh there must inevitably exist a procedure ta determine whether an arrested persan is or is not an enemy fighter benefiting from POW status), but they have the advantage of a detailed regime goveming their detention, of immunity against proseculion and of a right ta be released at the end of active hostilities. In relation ta Afghanistan, the question arises whether the agreeinents concluded by certain coalition partners such as Canada with the Afghan govemment in which bath parties undertake to "treat detainees in accordance with the standards set out in the Third Geneva Convention"l"

can be considered as a Wlilaterai granting of the protection of Convention m, which would malee !HL prevail over the lHRL procedural guarantees.

According ta the letier of those agreements, this is the case, at least for persans who are actually detained by the Afghan authorities. In reality, howev'er, il would be very astonisbing if, through those agreements, the Afghan govemment waived the right ta prosecute !hase arrested for acts of hostility against their forces, which is part of POW status. NGO reports rather indicate thateven the treatrnent of those persans is far from what

141 See [CRG Cusromary Law Study, supra note 60, at344-52.

142 J. Pictet, IV Commentory on the Gel1eva ConventiOIJ.i of 12 August 1949 (1952), at 260

'~3a . .

143 Quoted.· in Amnesty International Canada and British Columbia Civil Liberties Association v. Chief of the Defence Staff for the Canadian Forees, Minister of National Defence and Attorney General o( Canada, [2008) F.C. 336, Mar. 12,2008, para. 175, al:

http://www.lornewaldman.calpd:O.aidecision.pdf(last visited 12.oct. 2008).


Convention III would require.'" 'In my view, only full POW status may offer a lex specialis compared with the detailed procedural guarantees of


The main difficulty w(th this approaeh too is whether it is realistie to expeet States and non-State aetors, interning pbssibly thousands, to bring all internees before a court without delay during arrned' confiie!. If it is not, sueh an obligation risks making it extremely diffieult to conduet war effeètively and, thus, eould lead ta less compliance with Ihe rules in the long-term, e.g., summary execulions disguised as battlefield killings.

A second concem derives from the differences between State and

nOD-State actors, which have equal obligations under IHL but not under IHRL.

The question of whether a non-State actor may establish a court remains controversiaI. 14' The requirements that there be alegal basis and procedures .eslablished by làw for intemment raise the same eoneem. Whilehurnan rights themselves stipulate at least twoproeedural requirements, neither they nor IHL applicable to non-international armed eonflictprovide a specifie

The question of whether a non-State actor may establish a court remains controversiaI. 14' The requirements that there be alegal basis and procedures .eslablished by làw for intemment raise the same eoneem. Whilehurnan rights themselves stipulate at least twoproeedural requirements, neither they nor IHL applicable to non-international armed eonflictprovide a specifie

Dans le document The International Legal Framework for Stability Operations : When May International Forces Attack or Detain Someone in Afghanistan? (Page 28-37)