Article
Reference
The International Legal Framework for Stability Operations : When May International Forces Attack or Detain Someone in Afghanistan?
SASSÒLI, Marco
SASSÒLI, Marco. The International Legal Framework for Stability Operations : When May International Forces Attack or Detain Someone in Afghanistan? Israel Yearbook on Human Rights , 2009, vol. 39, p. 177-212
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THE INTERNATIONAL LEGAL FRAMEWORK FOR STABILITY OPERATIONS:
WREN MA Y INTERNATIONAL FORCES ATTACK OR DETAIN SOMEONE IN AFGHANISTAN?
Ey Marco Sassàli
*
I. INTRODUCTION
~"wp-ether we call the involvement of international forces in Afghanistan
~ssistâIlce to the Afghan. government, or a peace operation, a stability :qperation, part of the "war on terror"', an anned 'conflict, a foreign 9ÇÇupation or a love affair, and whatever the legal basis of such involvement -,Way be, twa of the mûst important tactical and humanitarian issues 'cOjlfronting international forces are when they may attaek or detain an
""enemy". Concerning detention, the key issues are on what legal basis and accQrding to what procedure the decisioll to acrest and detain may be takel1.
Two branches ofinternational1aw govem attack and detention: Intemational Humanilarian Law (!HL), or the law of armed confliet) and International H\lman Rights Law (IHRL).For both branches, first, a question of applicability arises: ŒRL _appHes 'in every circumstance and to everyone, but are the armed forces of. States bound by IHRL at ail when acting outside ,thçir territory? As for' !HL, it certainly applies to armed forces acting ,:xtraterritorially, but it applies only to armed eonfliets and ils rules on p,recis:ely our two issues. ar~ probably different in international and n011- ijltemational armed conflicts. Second, when applicable, for both !HL and IHRL the question arises as 10 when tbey allow (or rather: do not prohibil) ip.ternational forces to deprive enemies of their life or their liberty. Third, if ,both branches apply and lead to differing resnlts on our Iwo issues, wc must ')letermine which of the Iwo prevails.
In this article, 1 will try to discuss these three questioris, putting the :rmphasis on the substance of the rules, as others in this volume have
'" Professar ofIntemational Law at the University of Geneva (Switzerland), and Associate Professar at the Universities of Quebec in Montreal and of Laval (Canada).
1 would. Iike ta thank very wannly my research assistant, Lindsey Cameron, for her thorough research and useful comments on many issues dealt with in this article and for having revised it.
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178 ISRAEL YEARBOOK 01' HUMAN IUGHTS
extensively discl!Ssed the classification of the conflict(s) in AfghimiSlaJôi under [HL.
When 1 refer· to the "enemies" who may or may notb !~,e~h~~:~~~!r~~~
detained under the rules to be discussed, l will call them "
may be attacked or detained for wh.t reasons is obviously questions the legal framework has to deal with; even if the legal question were clear, one of the greatest practical d.lffiClllties remain: to identify whether someone belongs to Ihose categories. HClwe:ve,'Ji this article does not deal with thieves, with harmless civilians who become incidental victims of attacks or are mistakenly targeted, or civilians who oppose the government or the international presence using force. These people are obviously covered by the rules to be
but they are not the hard cases and !HL and !HRL do not prescri~b~e._~~jI7'i~~,
rules on them. The same is true for attacks directed against actually attack international forces while they are engaged in The hard cases, with· regard to the legality of attacks and the legal
their detention, are persons international forces believe to be
~:~~~~J~;\~j~
arrned groups such as Al Qaed. and the Taliban. 1 will explain below'wr,v consider that mere membership in such groups is flot sufficient, but person must also haye a fighting func!ion ta be a legitimate target of,attalc~ ..
!,
Il. APPLICABILITY OF INTERNATIONAL HUMANITARIAN IN AFGHANISTAN
Il is uncontroyersial that still in 2008 the level of violence and the orgartization of the Taliban and, at least in Afghanistan, of Al unfortunately sufficiently high ta make !HL applicable, even if the requirements of intensity and organization of the parties of IHL international armed eonfliets are applied.'The United States agrees, that the conflict between the Taliban and the Afghan goyemment is
international characte"r and that this characterizatton is not altered by ~~. l ' "
that the latter is heavily supported (if not kept alive) by international fore.es .. ,.
The ooly construction under which the entiro confliet in Afghanistan :cbûld' be elaimed to be of an international eharacter still today, in 2008, .. , ta reeall tbatthe confliet wasindeed international in 2001 because fought between the United States and the Taliban (who eonstituted facto govemment of Afghanistan) and ta eonsider that Ibis confliet çontu,ü"s:
until the defeat of the Taliban. Most, including the ICRC, eonsider
1 See infra, text accompanymg note 59. '," t':
2 See for 'those requi~enls in partie,ular KIT, Prosecutor v. Haradinaj, Balaj'-~d
Brahimaj, Trial Chamber Judgment, NO.lT-04-84-T, paras. 37-99 (Apr. 3, 2008).
THE LEGAL FRAMEWORK FOR STABILITY OPERAUONS 179
confliat turned into a confiict not of an international character in 2002, wheil 'tbe"Xarzai govemment was first appointed by the Loya Jirga' and ,then (since this new govemment of Afghanistan agreed to and requested
"thi<Y4'ôre,ign forces to support its continuing fighting against the Taliban).
'Flmr>aUy, one could however consider that until the Taliban are completely
the conflict bètween the United States and them maintains its :.'itltetllatlonal character and the United States (or the UN Security Council) . (co'uld not have altered this classification by establishing, recognizing or ' concluding agreemerits with a new local govenunent in the territory they occupied following their invasion.4 However, this 1S certainly not th,? thesis - of the United States and it encowlters different legal problems: inter alia, that it is difficult to consider free elections as a change introduced by the bccupying power, that the UN Security Counci! has given its blessing ta the neW arrangements and that such UN Security Council resolutions prevail
~ver any other international obligation under Article 103 of the UN Charter.
'l'," The United States' argnes, however, that beside the non-international
~ffiled conflict agains! the Taliban, a separate international anncd confiict
;exists:: the "war on terror" against Al Qaeda and its associates.
nc. _As far as. treaty law is concerned, international anned conflicts are mainly
'governed by the four 1949 Geneva Conventions' and Additional Protocol I. 6
,Neitber tbe United States nor Afghanistan arc! parties to Protoeol l, but they :are bound by the many rules of the laller that correspond to customary internationallaw. The Geneva Conventions apply (0 international arrned
!confiicts. Common Article 2 to the four Conventions states that they "shall capply to aIl cases of declared war or of any other affiled confiiet whicb may
"",ise between IWo or more of the High Contracting Parties". Only States can 'tie parties to the Conventions. Al Qaeda is not aState. Therefore, the
;Conventions do not apply to a conflict between the United States and its allies, on the one hand, and this non-State actor, on the other hand. As for
l.~, Thua the ICRC position accordmg 10 A. Roberts, "The Laws of War in the \Var on
tir Terror", 32 Israel Y.B. Hum. Rts. 193 (2002).
1t See Art. 47 of the Geneva Convention (IV) ;Relative to the Trcntment ofCivilinn Persans in Time ofWar, 1949, 75 u.N. T.S.2S7 (hcreinaftcr: Geneva Convention IV).
~. Geneva Convention (1) for the Amelioration of the Condition of. the Wounded and Sick in Ahned Forces in the Field, 1949, 75 U.N.T.S. 31; Geneva Convention (II) for the
.e<! Amelioration of the Condition of the WQundcd, Sick and Shipwrccked Mcmbcrs of
Anned Forces at Sea, 1949,75
u.N.r.s.
85; Geneva Convention (lIT) Relative to the Treatmcnt of Prisoners of War, 1949, 7S u.N. T.8. 135 [h,creinafter: Geneva Convention III]; Geneva Convention IV, supra note 4.6 Protocol Additional to the Geneva Conventions of 12 August 1949, and Reluting to the Protection ofVictims ofIntemational Armed ConflÏl:ts (Protocol 1), 1977, 1125 UN.T.S.
3 [hereinafter. Protocol IJ.
]
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180 ISRAEL YEARBOOK ON HUMAN RIGHTS
customary internationallaw, the"re is no indication confrrming W~~!:~i,~~;t be the view of the US administration, Le., that the concept of
anned confliet under customary international law is broader.? Stale . and opinio juris do not apply the law of international anned CQlofli,çtcl
conflicts between States and certain non-State actors. On the contrary, confonnity with the tenets of the Westphalian system, States uayc,.".alls distinguished between conflicts against one another, ta which the wIlol<'ôf IHL applied, and other anned eonfliets, ta whieb tbey were never pr<'Pat~1:1 t~
apply tbose same rules, but only more limited humanitarian rules.
III. APPLICABILITY OF INTERNATIONAL HUMAN RIGHTS LAW IN AFGHANISTAN
A. Does International Human Rights Law Apply EXltraJ~erl·ito,ria,'iV1 International forcedn Afghanistan
do
not aet 011 their own te,riù)ry;They are therefore bound by IHRL only if its obligations bind aState ev.,ri' '",h,>"acting beyond that State's territory. Article 1 of bo,th. the 1969l :~:::~~:~~:
Convention on Human Rights [ACHR]' and the 1950 European C
on Human Rights [ECHR]9 cJearly state that the States
Parties~;~~~~~~~,
••the rights listed in those conventions to everyooe 'with~ their . Under the jurisprudence of the European Court. of Human Rights this includes an oeeupied territory. JO,
On the universal level, under the 1966 lnternational Covenant n.-"ro,,;, and Politieal Rights [ICCPR or Covenant]'l a party undertakes "ta ,O."~O'.'
and ta ensure ta ail individuals within its territory and sul,je,et··!o' jurisdietion the rights reeognized ... " (my emphasis). This wC"';;'~~eti(;,;'lii, negotiating bistory lean towards understanding territory and lU
7 See W.K. Lietzau, "Combating Terrorism: Law Enforcement or Wart", in TaToriiiit an, International Law, Challenges and Responsés 80 (M. Schmitt & G.L. Berutt1 eds':-S'Il!' Remo, International Institute of Humanitarian Law and George Marshall European for Security Studies, 2002).
8 American Convention on.Human Righ.ts, 1969, OEAlSer.KlXVUl.l Doc. 75,1ey..
1,9 n ,M 101 (1970) Ihereinaftero ACHR].
9 European Convention for tbe Protection of HUman Rights and Fundameota1 F""~oj,IS,, 1950; 213 U.N.T.S. 211[hereinafter: ECHR].
10 Loizidou v. Turkey, (Merits), [1996-VI] Eur. Ct. H.R. 2216, st 2235-36, para.
Cyprus v. Turkey, {2001-IV] Eur. Ct. H,R., at para, 77. .~;!
These and all other decisions of the ECtHR are aVài!able af: http://hudoc.echr.coejnt,
11 International Covenant on Civil and poÜtical Rights, 1966, 999 V.N. T.S. 171 [he,,,jTh;(te,r.. ICCPR].
THE LEGAL FRAMEWORKFOR STABILITY OPERATIONS 181
:':cumulative conditions.
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The United States and Israel therefore deny that theis applicable extraterritoriallyY The International Court of 'J115tice,14 the UN Human Rights CornmitteelS and other Statesl ' are however of the opinion that the Covenant equaUy applies in an occupied territory..1' :'From a teleologieal point of view it would indeed be astonishing that persans
whose rights can neither be violated nor protected by the territorial State lose canY protection of their fundamental rights against the State whieh. can actually violate and protect their rights.
_ . B. How Much Con/roi is Necessary /0 be Under the Jurisdiclion of a Foreign Siale?
r
If !HRL applies extraterritorially, the next question that arises is when a p,erson can be considered ta be under the jurisdiction of aState. Analysis of
·this· issue - the level of control a State must exercise in arder ta be bound by ils international hurnan rights obligations - has often been divided aceording te treaty. However, there hasbeen a certain amount of convergence
in
the12 See M.J. Dennis, "Apptication of Human Rights Tr~aties Bxtraterritorially in Times of Armed Conflict and Military Occupation", 99 A.Jl.L. 119, at 123-24 (2005).
:P See for Israel,. International Court of Justice (leJ), Legal Consequences of the C;oostJUction of a Wall in the Occupied Palestinian TelTÎtory, Advisory Opinion, [2004]
}.CJ. Rep. 131, at paras. 102 and 110; A. Roberts, "Prolonged Military Occupations: the Israeli-Occupied Territories Since 1967",84 A.J./.L..44;at 71-72 (1990).
~."' The Coalition Provisional Authority Administrntor in Iraq, Ambassador L.P. Bremer is
F reported ta have stated in a tetter to Amnesty International that "the only relevant standard applicable to the Coalition's detention prncHces is the Fourth Geneva Convcntion of 1949". See, Amnesty International, Iraq: Memorandum on Conce/"ns Relatcd to Legislation Introduced by the Coalition Provi,ç;ona! Authority (MDE 141176/2003), (Dec.
4,2003), ar.
~ http://web.amnesty.orgllibrarylIndexlENGMDE141762003?open&of:=ENG-IRQ.
14 Legal Consequences of the Construction of a Wall, supra note 13, at paras. t 07-12; rCJ, Anned Activities on the Territory of the Congo (Dem. Rep. Congo v. Ugandn), [20.05]
Le.J. Rep. 116, al paras. 216·17.
The decisions of the International Court of Justice are available al:
·http://www.icj-cij.org.
J~ Concluding Observations of the Htnnan Righfs. Commilfee: J.'irael. /8/08/98, UN Doc.
CCPRlCI79/Add.93, para. 10;
Hum.
Rts. Comm., General Comment No. 31: UN POCo CCPRlC/21/Rev.lIAdd.13, para. 10 (2004).16 UK, Ministry of Defence, ~e Manual of the Law of Armcd Conflict (2004), at para.
11.19.
J7 See a/so references in W. Klilin, Report on the Sitllalioll 01 Human Right.r ln Kuv.'OU imder Iraq; Occupation, UN Doc. ElCNA/1992126, at para~. 50-59 (Jan. 16, 1992).
182 ISRAEL YEARBOOK ON HUMAN RIGHTS
interpretation of jurisdiction in recent cases. 18" The Inter-American. Court Commission for Ruman RightS have tended to .dopt broad view," àf may give rise to aState having extraterritorial jurisdiction. The wl,qelY-êit case of Alejandre v. Cuba' ilIustrates that physical ,control
exercised through having "boots on the ground" is not
jurisdiction to arise in the Inter-American system. In that ta.se.''.!. tl Commission held that the applicants came within Cuban jurJisdilçti~pn'wh,
Cuba.'s airplanes fired on another airplane flying in int,ernati"nall"a:irsl'!lCI'.)' As for the European Court of Ruman Rights, from its strictes.!
articulated in Bankovic - that aState mus,t exercise effectivè coritrol' territory by' being physièally present on that territory in order ta . jurisdiction" - the ECtHR has moved, over the past decade, to aplpIYÎ!l~
standard that does not .lways require "boots on the ,ground".
ECtHR looked for effective territorial control. Il found, on the,fool, Turkish forces in northem Iraq did not' exhibit that level of
therefore, in its decision on the merits, held that in fact the Iraqi "pli!ie:a,,, claim was inadmissible.2\ In a very recent case, hewever, the
held that jurisdiction can flow froni facts not unJike.those in A"1i4Iidre) Cuba (or indecd, in Bankovic). Pad v. Turkey involved a skirrniishp.IÎ Turkish-Iranian border in which seven lranians were killed by helicopter gunshlps. The Court held that:
... it is not required to determine the exact location of the irn;PU!~
evenrs, given that the Govemment had already admitted
discharged from the helicopters had caused the killing off~~~i;~l,l~~~~~
relatives , ... Accordingly, the COllI} finds that the v impugned events were within the jurisdiction of Turkey at time.22
l1lÏs conclusion i8 clearly at variance with Bankovic, commentator put it, "the Court found that jurisdiction could not
18 J. Cerone, "Human Dignity in the Life of Fire: the Application Ofo:~~:,';tii!~}J~~~\j Rights Law During Armed Conillet, Occupation, and Peace Operations",
Transn'}L. 1447,at 1491-92 (2006).
19 Inter-Am. Ct. H.R., Case 11.589, Rep. No .. 86/99, OEAlSer,UVIILl06 Doç. ~.'~~ a~
(1999). para. 25, '
20 Bankovic et al. v. Belgium et al., Admissibility, [20DI-XII] Eur. Ct. H. R.: 70-71.
21 Issa v. Turkey, App. No. 31821/96 (Merits), Eur. Ct. KR. (Nov. 16,lOO4),P'''L\, 22 Pad et al. v., Turkey, Adrnissibility, App. No. 60167/00, Ellr.Ct. H.R.
para. 54.
THE LEGAL FRAMEWORK FOR STABlLITY OPERATIONS 183
facl of dropping bombs on individuals"." It would be specious if, in , 'the Court were ta distinguish Pad exclusively on the grounds that had not forma11y contested that il. had jurisdiction over the âppVè~llts' relatives.
Ce',nceiv'ab,ly, for a11· treaties, jurisdiction could arise through a State's extra-\errit(Jri'LI exercise of control over persons. However, it 8eems ,likely
"_."'n""" will at limes 81so look for effective control over lerritory, The
:ifj~ctLJrsidentified by lhe ECIHR in Issa as indicators of such control were 1) number of soldiers on the ground; 2) the size of Ibe area controlled; 3) of control exercised (i.e., whether checkpoints, etc. were ,esmou'J1euh and 4) Ibe duration of Ibe exercise of contro!.24 The first and are valid indicators
to
measure something as nebulous as>/',êôr!lr()I",; however, with all due respect ta the Court, the second and fourth ' Ç",o'nN bring little to the analysis. AlI olber things being equal, it is difficult ,!Iru1giJle why it would make a difference whether' foreign forces controlled or only a village. The fourth factor, the duration of control, may for a Court reviewing actions long after Ibe fact, but il fails to m(\Vlile States and Ibeir forces or agents with a clear indication ofwhen they
DO.lli,<U be responsible for respecting (and possibly even protecting) Ibe nWOli""
"'''HI,'
of the people in their care." ,i"" 'n
my view, a solution could be found tlITough a functional approach,i;~~~:~~~;~~:n~ the degree of control necessary according ta the right ta be .",. Such an approach would reconcile the object and pUl]lose of rights to protect everyone with the need not ta bind States by êlarantees they cannat deliver outside their territory and the protection of the-sovereignty of the territorial State (which may lie encraached upon by
•• ..• ~. ~~~~f,~~~ forces pratecting human rigb!s against anyone other than For our \Wo issues, this functional approach would mean that forces have to respect the right to life of a person simply by to attack tbat person as soon as those forces could affect that right ... ' •• ,,-attack, while they would have to respect the procedural guarantees , ""h'Tellt in the right to personal freedom only as long as Ibey physically Ibe person. The applicability of IHRL obviously does not yet ... èl~te'ônine whether its guarantees or thase of lHL prevail in a given situation .
.
~~1
.f:-1.o1e,~Issa
v,Tur~ey:
Deliniating the Extra-territorial Effect of the EUrQpean Convention on 'Human Rights", 1 Eur. Hum. Rts. L. Re\!. 86, at 87 (2005).supra note 21, at para. 75. In this the Court was drawing' on its prior case-la:w regarding Cyprus .
. Cerone, supra note 18, at 1494-1507, frames the discussio,n in terrns of a "range" of . ", .. Applicable rigbts and in terrns of the "levet of obligati.on" binding States actIng extra-
territorially.
'. 184 ISRAEL YEAR}lOOK ON HUMAN RIGHTS
Ail on the contrary, the lex specialis issue only arises if both brllDche:SaP!
ta a certain situation.
C. Whal
if
Jurisdiction is Shared by Different Coalition Pair/n,ers.and a Host Government?
If IHRL applies extratenitorially, even if we knew exactly wh.t control is necessary to put someone under the jurisdiction oh Staté, of coalition operations such as those in Afghanistan addition~l quést:io arise. Can the degree of control necessary to exercise jurisdiction
cumulative éontributions by different States, including the haSt ,uch a case, does every contributing State have jurisdiction? mese· aO:estj, have been raised but not exhaustively examined before the ~c, ... n",-.'
Hussein v. Albania et al., the Court held that the applicant Sa<ldam:ijuss had failed ta furnish sufficient proof that the respondent States
over Iraq or over him at the time of his detention (or arrest) jurisdiction would flow." The Court .eemed to suggest that
would not automatically exist for States participating in a
US, when the impugned actions were carried out 1)y the US, when sec:urity~
. the zone in which those actions took place was assigned to the US "~, .... ,,,.
the overall command of the coalition was vested in the US"."
last-mentioned specificities, there is no prillla fade reason to exclu~e
coIlective control'could suffi ce to establish jurisdiction. A case th'Llb,ro"id, more guidance on this issue isHess v. United Kingdom, which ,J.,.l,i,v;'h:ô application by Rudolph Hess' wife forhis release from Sp,md,mPris(,n'A the relevant tirne, the prison was Wlder the control of the four
in Germany foIlowing the Second World War. The Comrniss,ioID.î;' detennining whether the prison came within the UK's jurisdictiqni a priori ihe premise that the ECHR could apply ta the activities OC[)JlUI forces in Berlin. However, i! took into accoun! the fact that de<:isi'Oti::m,ÙÔ1 powers regarding the prison was by unanimous agreement bel:we.en.:à.,lll AIlied powers. As such, it held that:
... the United Kingdom acts only as a partner,in the joint..tes:pOIlsitlili~
which it shares with the tbree other Power •. The Commission opinion that the joint authority canno! be divided inlo
. jurisdictions and that therefore the United Kingdom'S]lwticipation exercise of the joint authority and consequenlly in the admiJoistra!:io,ll'
26 Hussein v. Albania, AdmissibiHty, App. No. 2.3276/04, Eur. Ct. H.R. 3 (Mar, 27 Ibid., at 4.
THE LEGAL FRAMEWORK FOR STABILITY OPERATIONS 185
'~,,,ervi.siC)fl·of Spandau prison is not a matter "within the jurisdiction" of United Kingdom, within the meaning of Art. 1 of the Convention."
·":.;it
"ho'l,ding would seem to exclude the possibility of jurisdiction flowing .
control <,iuring a muiti-iaterai operation. However, as one. has observed, the Commission was part;cularly troubled by the lack
"""cUltive decision-making power of the UK in regard to the prison.
2'
.Lo'g,,:aIlY, if aState participating in a multi-Iateral operation nevertheless
'executive decisiori-making power over Hs force$ and personnel, there AO ,reason to deny jurisdiction.
Mc,rec)ver. any agreement between States participating in amulti-Iateral bpe,tation affecting that kind of decision-making power could fall afoul of a
.obligatio'ns.lnHess, the Commission wr~te:
The conclusion by the respondent Govemment of an agreement d~""(,oncerning Spandau prison of the kind in question in this case could raise
. th, 'issue under the C~nvelltion if it
were
entered Îuta when theConvention was already in force for the respondent Govenunent. The
o ~gt:eement concerning the prison, however. came irito force in 1945.30 the
two
issues dealt with in this. artiêle, 1 conclude as follows. No',cCil!biblltirlg State may make a deliberate causal contribution to a violation of
right to life of any person. However, a contributing State that is not an
, occupying power does not exercise the level of jurisdiction Qver a persan
that would oblige it to proiect that person's right to life against other
! >" ~ . ~~~~.t:p;artners
or the host State.31 Applyillg this reasoning tathe coalition and the Afghan authorities collectively exercise control, but, for the international coalition partners, this does not ta the positive obligations associated with the right to life (i.e" ta it against third parties). The responsibility for ellsuring the respect of }"i'f."~I'C", of the right ta life remains with the Afghan goveniment, which,
effect to it, may have a due diligence obligation regarding the
eUIJUllel of coalition forces. As for detaillees, even aState which is Dot ah '-Hess v, United Kingdom, Admissibility, 18 YB Eur. CO1/. Hum. RIs. 146, at 176 (1975).
D. Kamchibekova, "State Responsibility for Extra·Territorial Human Rigbts Violatiçms",
Buffalo Hum. RIs. L. Rev. 87, àt 125 (2007). .
supra note 28. at 176 (my emphasis).
that is an Occupying Power~ bowevcr. ha~ the positive obligation to proteet the to life of persans within its jurisdiction against Ihird parties. The JCJ held tbat 1.:1ganda, as an occupying power in Congo, had an obligation "la protecl the inhabitants of
~he occupied territory against·acts of violence, and not 10 lolerate such violence by any mird party". See Anned Activities on the Territmy oftlte Congo, supra )"lote 14, atparas.
)78-79.
186 IsRAEL YEARBOOK ON HUMAN RIGRTS
of coalition forces., As for detainees, even aState which is not an OC"UPyrn power must offer any person it actually detains, independently of wheth:eT also arrested that person or not,32 the rights that detainee bas during phase of detention; however, such rights may also be respected by me:aSllfe, actually taken by another coalition partner or the host State.
In my. view, the same analysis must be made when different partuers and a host State are bound by differing \l'eaty obligations.
State has to comply with its own obligations concerning ils contribution. In addition, aState actually detaining a person must rights ofthat person even against States not bound togrant such rights.
D. Who Could Proceed to Admissible Derogations?
Under . normal circumstances, a State's ability to deregate from obligations under human rights treaties is limited to situations in which ' security of the State itself is in jeopardy. 33 Can this requirement be met a State's forces are involved in a multi-lateral operation abread?
Bingharn of Comhill wrote in Al Jedda that the power, to derogate:
... may only be exercised in time of war or other public enl.rrreIIC\!
tbreatening the life of the nation seeking to deragate, and only then extent slrictly required by the exigencies of the situation ... Il is thlnk that these conditions could ever' be mei when 'a State had
r , h,,,.,, · ,,,
conduct an overseas peacekeeping operation, however dangerous conditions, from which it could withdraw.34
32 See
on
the irrelcvance of who arrested a detainee, UK, In the Matter of the AN ParliamenlOly Group on Extraardina.ry 'Rendition and in the Matter a/the Human Responsfbility Arising from the Mili/my Detainee Handovers in Iraq, Joint (July 2008), par",. 10 and 15(2), al:ï
gid=30<emid=2!
33 Art. 15 of the ECHR (supra note 9) refers ta "time of war or other ~ublic
emers:'"sv5!
threatening the life of the nation ... "; Art. 40f the ICCPR (supra note 11) refers of public emergency whicb threatens the life of tbe nation and the exjstenc~ of officially proclaimed .. :"; Art. 27 of the ACHR (supra note 8) refers tQ "time public danger, or other emergency that threatens the independence or security of a
party ... ". '
34 R (On the Application of Al~Jedda) (FC) v. Secretary of State for Defence, U.K.H.L. 58, per Lord Bingham, para. 38, at:
http://www.publicat.ions.parliament.uk/pa/ldlldjudgmt.htm.
THE LEGAL FRAMEWORJ( FOR STABILlTY OPERATIONS 187
tL()rd:l!inghrun went on to add;. '~e Secretary of State does not Con tend that
UK
could exercise its power ta derogate in Iraq (although he does not, that it could not)"," '
;-,;-', ",mv view, one cannot simultaneously hold aState accountable because
" has a certain level of control abread and deny it the possibiiity ta cterogate
'because there is no emergency on that State's own territory. An emergency 'on::the territory where the State has, a certain limited control must be
·s'ufficient.
E. Wha! is the Impact of a UN Mandate?
N(}[1rtally, the legality or illegality of an exercise of jurisdiction does not 'matter for the applicability oflHRL." No one denies that human rights most typically apply ta the most lawful excrcise of jurisdiction: tmitorial ju!'isdiction. The ECfHR held that the responsibility of aState also arose :"when as a consequence of military action -whelher law/u! or unlawful -it 'exercises effective control of an area outside its national territory". 37
.Theoretically, UN ,Security Council resolutions could, under Article 103 of
\he UN Charter, prevail over IHRL obligations of States (however, the extent to'which they may dosa is controversial). In my yiew, any derogation from
;IHRL by the UN Security Couneil must howéver be explicit. ln AI Jedda, the
'l}K Rouse of Lords cousidered that UN Security Council Resolution 1546,
:? authorizing "iritemment where ... necessary for imperative reasons of
"J'fcurity" qualified the UK's obligations under Article 5 of the ECHR38 In
. -P.!Y view, the wording of this Resolution is not explicit enougb to be
.~Q1i$idered to mandate UN Member States not to pro vide such internees with
, 'the procedural guarantees they are obliged ta offer under IRRL. In any case,
'35,< -Id.
;~,~, Nonetheless, it moy weil be that the illegality of Ihe exercîse also means il vioJates IHRL, 'fIH as_mRL, contrllry to lliL, knows no distinction bctweenjlls ad hellum and jus il! hel/o.
~, Sel! W. Schabas, "Lex specialis? Bell and Suspendcrs? Tbe Parallel Operation of Human 'Rights Law and the Law of Anlled Confliel and Ihe Conundrum of .II1S ad BeI/mil", 40 t'-Israel L Rel'. 592, at 593, 607-10 (2007).
"
Loizidou v" Turkey, supra note 10, at 2235-36, para. 52 (my cmphasis).Al Jedda, supra note 34, at paras. 26-39 (per Lord 8ingham), 125-29 (pe! Baroness Hale), paras. 130-35 (per Lord Carswell) and para. 15,1 (per Lord Brown). Lord Rodger agrees in pQnciple in ohiter nt para. 118. The Law Lords held thal Art. 5 rights may he "displaced"
'pr"qualified" by UN S.C. Res. 1546 but insisted thul the infringement be limited. Lord Bingham held thal they must "enslire Ihnt the detainee's rights under article 5 are not infringed to any greater extent than is i.nhcrent in such delemion" (para. 39). Lord '. -·~.carswel\ proposed specifie "safeguards" to he implcrnented durÎng suc.h dctcntion "so far
.--'.':""_as is practicable and consistent with the needs of national securily and the safcly of other
persons" (para. 130),' ,
188 ISRAEL YEARBOOK ON I!UMAN R1GHTS 'Hl'
the UN Security Counci! resolutions concerning Af'ghani:st~IlFc6'lD.'tain,'l
language similar to that' of Resolution 1546 which could· be'Cl,limle, govern the admissible reasons of detenlion, ,y,]; "
In' my view, UN Security Council resolutions must l5e'
whenever possible in a manner compatible with the rest ofint,errlOtiôri,.l The mandlOte of the Security Counci! to maintain international
security includes the authorization of the use of force. Ho'"w::':!~ri7;~.t~
be used is however governed by other branches of iI
including IHRL. No one would claim that a UN Security Councll res,01u'tii urging States to prevent acts of terrorism implicitly authorizes toriÙre surnrrary executions. Beyond that, it is often argued that even the . Counci! must comply withjus cogens39 and the'human rights ÀÎs:cm;Se,:lher belong to jus cogens.
A distinct question relates to situations where foreigu, ~~;,".,,"
participating in a peace operation in a way .that their acls can be attribute, only to the United Nations. A much-criticized recent judgment sug:g"":!S in such.a case the sending State will not have jurisdiction for the pulpd,ses its obligations under h = rights treaties." Indeed, this' judgm.en"t~ruI"
counter to explicit statements by States and to practice,41 In my V.: Le,,'. nere elsewhere everything depends on the facts, Il' may weIl be
contributes troops to a peace operation insuch a way that it no
control over wh.t those troops do and that the exclusive cOlnmlanl~Jri4
39 See Separate Opinion of Lauterpacht J. in the ,Case Concerning Appli,"\i,'A Convention OD the Prevention and Punishmcnt of the Crime of Genocide Herzegovina v. Yugoslavia), Provisional Measures, [1993] i.eoJ. Rep. 325, at
paras. 100-102. .
40 See Bebrami et al. v. France et al., Admi.ssibility, App. Nos. 71412/01 &
[2oo7J Eur. Ct. H.R. In this case, the question of attribution was n~:'~I~~~~ ~~!;fJ;i~:
from the abovementioned question whether fi, Security Council resolution substantive human rights obligations of a State, but in its global ~easoning suggested that sucb resolutions bave precisely that effect (ibid., para.
questions were distinguished in the AI Jedda case by the UK House of
rejected on the facts the daims of the govemment Wlder the frrst question but ans,,"~red' the second question affirmatively (Al Jedda, supra Dote 34, per Lord Bingham, "01"8$. 2:4- 24 (attribution), and pata.. 39 (human rights); Lord Rodger dissenting on the
attribution, see esp. para. 99).
41 Germany, UN Doc. CCPR/CO/80IDEU/Add.1 (Jan. 5, 2005) (F~o~:~(\\~;~\;~~;b~~;i State party to the Human Rights Committee); Poland, UN Doc. C
3 (HRC's concluding observations) (Dec. 2, 29(4); other States Parties have
80.'''''''''
questions regarding the actions of therr national fo·rees in peacekeeping missions contending tl:iat the ICCPR does not apply beyond their State borders or in that
(Italy, UN Doc. CCPR/C/SR.1707, para. 22; Belgi""', UN Doc. CCPR/C/SR,1680, para,
22 ; Canada, UN Doc. CCPR/C/SR.1738, paras. 29, 32). ..
THE LEGAL FRAMEWORK FOR STABILITY OPERATIONS 189
with the UN, with another international organization or with a
Sta~e,J. n fact, this is the situation the drafters envisaged in Articles 43- UN Charter, which have remained a dead letter. In reality, ÎinJrib'ltir.g States retain a very large degree of control over their forces.
Wervo;le familiar wiih ISAF in Afghanistan knows of the national caveats
sc~~sed" in other contributions to this volume. If UN Security COUDcil
!so:lutions and'NATO rules allow a contributing State to op! out of a, cert~in of"operation, out of any given operation, or ou! of certain methods to '~~~::~~:th:~elm~~, that State has enough control over the acts ofits own troops (t, for their conformity with its human righls obligations. The of joint control by • State and an international organization can be dealt
'similarly to that of joint control by several States.42 However, a
m"jri'ber State of an organization has a continuing responsibility to ensure an organization to which it delegates conduct that may have implications '. ofhuman rights complies with the corresponding standards" .
IV. THE SUBSTANTIVE RULES OF INTERNATIONAL
",; .• ·"HUMANITARIAN LAW APPLICABLE IN AFGHANISTAN A. On attacks
traditional answer of internatiQnal humanitarian law of international conflicts
1nltenlatiomil armed cooflicts, members of armed forces belonging to a
ta
the conflict are combatants. Combatants may be attacked nt any time they surrender or are otherwise "hors de combat" and not only while àctù~!ly threatening the eoemy. Combatants are part of the military potential ofth~ .oemy and it is therefore always lawful to attack them for the purpose weàkening that potential. Beside combatants, civilians, too, may '",<éèpti'Olllllly be attacked, but only for such. time as they direcUy participate iJl.Jlidstilitie,,, 44 The traditional understanding is that no rule restricts the use
'"" ,fi"iT,·.
against combatanls to only those eireumstances when they eannot be,ea.ptuired. Within mL, this view has beeo ehallenged based on the principle
See Draft Arts. 28 and 29 of the Draft Articles on the ResponsibiHty of Illtem~tionaI
Organizarions, UN Doc. A/611IO. Ch. VI (2006). . Waite and 'Kennedy v. Gennany, [1999·1] Eur. Ct. H.R. 393; Bosphorus Hava Yollari l'Turizm ve Ticaret Anonim Sirketi v. Ireland, [2005~VIJ Eur. Ct. HR., at para. 154.
Art. 51(3) of Protacal l (supra note 6) which reflects cuslomary law, but the exact . ttJ.eaning of which is controversial and prescQtly subjcct to an rCRC-led proce~s of
"r*arch and retlection on and clarification of the notion of direct participation in
bosrilities (see infra Dote 51).
190 ISRAEL YEARBOOK ON HUMAN RIGHTS
of military necessity aS a restriction on aU violence45 and the prohibition of treacherous killings.46 However, neither of these understandings has been translated iuto actual battlefield instructions, and even less ihto. actual battlefield behaviour. 47
Even altacks directed at combatants are subjecl ta the proportionality principle, but in !HL this principle protecls only civilians incidentally affected" and does not require a proportionality evaluation between the harm inflicted on the combatant and the military advantage drawu from the attack. The same i8 true for precautionary measures in attack, which must only be taken for the benefit of the civilian population.
2) The uncertain answer of the treaty ru/es of international hU11!anitarian /aw of non-international armed conjlicts
In contradislinclion to intemational armed conflicts, it is not clear under the treaty law of non-international armed conflicts when an enemy fighter may be attacked. lndeed, neither Article 3 common ta the 1949 Geneva Conventions .. nOT AdditiQnal Pretacol II49 refers to "combatants" because States did not want to confer on anyone in non-internatîonal anned conflicts the right ta participa!e in hostilities and the corresponding combatant irnmunity.Those' provisions prohibit "violence tolife and person, in particular murder" directed against "persans taking no active part in hostilities," including those who have ceased to take part in hostilities.50 Specifically addressing the conduct of hostilities, Article 13 of Additional Protocol II prohibils attacks against civilians "unless and for such lime as they take a direct part in hostilities". 51
45 J.8. Pictet, Development and Principles of International Humanitarian Law 75-76 (1985).
46 See UK, The Law ofWar on Land, Part III of the Manual on Mi/itary Lmv (War Office, 1958), para. 115.
47 See the divergences of view in the ICRC expert consultations on the notion of direct participation in hostilities, DPH 2005, infra nok 51, at 45-46; L. Doswald-Beck, "The Right ta Life in Arrned Conflict: Does International Humanitarian Law Provide all the Answers?". 88 Int'[ Rev. Red Cross 881, at 902,(2006); V.-J. Proulx, "If the Hat Pits, Wear it, If the Turban Fits, Run for Your Life: Reflections on the Indefinite Detention and Targeted Killing of Suspected Terrorists", 56 Hastings L. J. 801, at 882-83 (2006).
48 Art. 51(5)(b) ofProtocol I, supra note 6.
49 Proto col Additional to the Geneva Conventions of 12 August 1949, and Relating ta the Protection of Victims of Non-International Armed Conflicts (protocol II), 1977, 1125 U.N.T.S. 609 [hereinafter: Protocol Il].
50 See Art. 3 common to Geneva Conventions I-IV (supra note 5), and Art. 4ofProtocol II (supra note 49).
51 Recently, the'ICRC was engaged, in consultation with experts, in a process ofresearch and reflection on and clarification of the notion of "direct participation in hostHities"
under !HL. This process has not yet shown definitive results but it clearly demonstrated
TIlE LEGAL FRAMEWORK FOR STABILITY OPERATIONS 191 One may deduce !Tom these rules and from the absence of any mention of
"combatants" that everyone is a civilian in a non-international anned confliet and that no one may be atlacked unless he or she directly participates in hostilities. However, first, it would then be astonishing that Article 13 uses the tenn "civilian" instead of a braader tenn such as "person",52 Second, if everyone is a civilian, the principle of distinction, which is a fundamental principle of !HL, becomes meaningless and impossible to apply.53 Third, common Article 3 confers its protection on "perSOll$ taking no active part in hostilîties, including tnembers of arrned forces who have laid down their anus or are otherwisehors de combat", The latter part of the'phrase suggests that for such members of affiled forces54 it is not sufficient to no longer take an active part in hostilities to be immune from attack They must take additional steps and actively disengage. Fourth, on a more practicallevel, ta prahibit gavermnent farces ta atlack clearly identified fighters unless the latter engage, government forces is militarily unrealistic as it would oblige them to act purely reactively while facilitating hit-and-mn operations by the rebel group. These arguments may therefore lead ta the conclusion of the lCRC Commentary to Protocol
n
that "[tlhosc belongil1g to armed forces or armed groups may be'attacked at arry time"."This conclusion that fighters may be attacked, as in international mmed conflicts, at any time, 1llltil they disengage' from the armed group, may be reconciled with the text of the treaty provisîons in two ways. First, "direct participation in hostilities" can be understood ta encornpass the simple fact
profound divergences over the 'question when enemy fighters may be killedin a non- international anned conflict. See reports of the 2003 meeting [hereinafter: DPH 2003 Report], the 2004 meeting [hereinafter: DPH 2004 Report], and the 2005 meeting [hereinafter: DPH 2005 Report],all Reports available at:
http://W'irw.icrc.org/web/engisiteengO.nsf/htmlall/purticipation-hostilities-ihl- 31 1205?opendocurneut (last visited 21 May 2008).
Based upou those di~cussions, the ICRGis cunently preparing an "Interpretative guidance on the notion of direct participation in hostilities".
52 University Centre for Intemational Humanitarian Law, E).l'erf Meeting on the Rigllt ta Life in AnnedConflict and Situations of Occupation, (Sept. 2005), online:
http://www.adh-geneva.chlevents/ expert -rneetÎn gs. php (last visited 21 May 2008) (hereinafter:. UCIHL Report] at 34.
53 DPH 2005 Report, supra note 51, at 64; D. Kretzmer, "Targeted Killing of Suspected Tenorists: Extra-Judicial Executions or Legitimate Means of Defence?", 16 Eur. 1. fnt'l L. 171, at 197-98 (2005).
54 Under cornmon Art. 3, the tenn "anncd forces" includes rebel anned groups; see M.
Sassoli, "Terrorism and War", 4 J. Int'[ Crim. Just. 959, at 977 (2006).
55 Commentary on the Additional Protocols of 8 .June 1977 ta the Geneva Canvenüons of 12 August 1949 (Y. Sandoz, C. Swinarski & B. Zinul1ermann, cds., 1987), at para. 4789.
192 ISRAEL YEARBOOK ON HUMAN RIGHTS '
of remaining a member of tbe group" or of keeping a fighting function."
Second, fighters can be considered'not to pe "civilians" (benefiting from the protection against attacks, unless and for sucb time as tbey directly participate in hostilities), 58
However, tbis conclusion raises difficult questions in practice. How do' govemment forces determine membership in an armed group while the individual in question does not conunit hostile acts? How can membership in the armed group be distinguished from simple .ffiliation with a party to the conflict for which the group is figbting - in otber words, membership in the political, educational or humanitarian wing of a rebel movement? In .rny view, one of the mostconvincing avenues is ta allow attacks only against a person who either actually directly participa!es in hostilities or has a function within the arrned group to commit acts th.t constitute direct participation in the hostilities." '
3) No answer is provided 'to the question by customary international humanitarian Law .
According to the ICRC Study on Custonlmy International Humanilarian
Law' '[ICRC Customary Law Study], in both intern.tional and non:'
international armed conflicts, "[a]ttacks may only' be directed against combatanls".60 However, the definition of the term comb.tant 'offered for non-international armed conflicts makes tbis rule rather circular, if it simply
"indicat[es] persans who do not enjoy the protection against attacks accorded to civilians".61 Other rules of that Study indic.te that "[ c ]ivilians are protected against atlack unless and for 8uch time as they take a direct part in' hostilities"62 and civilians are defined as "persons who are not members of the armed forces"," The conunentary to the rules must however admit th.t while "St.te arrned forces may be considered combatants ... pr.ctice is not clear as to the situation of members' of anned" opposition groups",64 but rather "ambiguous as to whether ... [theyrare considered members of anned .
S6 DPH 2005 Report, supra note 51, at 48-49~
57 H.C. (High Court of Justice) 769/02, Public Committee against Torture in Israel et al. v.
Goverrunent of Israel et al., HeJ 769/02, Dec. Il, 2005, para. 39 (a full translation is avail~ble in 46 J.L.M 375 (2007)); (hereinafter: Targeted Killings Case].
58 DPH 2005 Report, supra not~ 51, at43-44. . S9 Ibid., at 64; Kretzmer, supra note 53, at 198·99. goes in a similar direction.
60 Customary International Humanirarian Law, Vofutlle 1, Rules 3 (TCRe, J.·M. Henckaerts
& L. Doswald-Beck eds., 2005), Rule 1 [hereinafter: [CRe Customary Law Study).
61 Ibid., at 3.
62 [bic/., Rule 6, at 19.
63 Ibid., Rule 5, at 17.
64 Ibid., at 12.
