Is it possible to respect the human right to life in the context of war? Or does war, by its very nature, involve the arbitrary deprivation of life? Last month, the United Nations Human Rights Committee released its draft General Comment on article 6 of the International Covenant on Civil and Political Rights, which mandates legal protection of the right to life and prohibits the arbitrary deprivation of life. According to the Committee’s Draft, any act of aggression contrary to the United Nations Charter, as well as every breach of the law of armed conflict, violates the right to life of every person it kills.

In my view, the Committee’s Draft is legally correct on both points. At the same time, if adopted, the Committee’s Draft will place human rights law­­­­­—along with its monitoring and accountability mechanisms—at the center of legal controversies over the resort to armed force and the conduct of hostilities. After all, on this view, the legality of military action is, ultimately, a question of human rights law. The Committee’s Draft also raises two legal concerns that the Committee would be wise to avoid.

Allow me to set the stage.

First, the Committee’s Draft clarifies that human rights law applies to extraterritorial military operations. According to the Committee’s Draft,

 a State party has an obligation to respect and to ensure the rights under article 6 of all persons who are found within its territory and all persons subject to its jurisdiction, that is, all persons over whose enjoyment of the right to life it exercises power or effective control.  This includes persons located outside any territory effectively controlled by the State who are nonetheless impacted by its military or other activities in a [direct], significant and foreseeable manner. (para 66)

Second, the Committee’s Draft reaffirms the Committee’s view that, during armed conflict, human rights law continues to apply alongside international humanitarian law­ (also known as the law of armed conflict­). According to the Committee’s Draft,

[w]hile rules of international humanitarian law may be relevant for the interpretation and application of article 6, both spheres of law are complementary, not mutually exclusive. (para 67)

Together, these two positions create space for the view that acts of aggression, which necessarily take place outside a State’s own territory, may violate the human right to life even if they do not violate international humanitarian law. More on that in a moment.

Third, the Committee’s Draft underscores that

practices inconsistent with international humanitarian law, entailing a risk to the lives of civilians and persons hors de combat, including the targeting of civilians and civilian objects, indiscriminate attacks, failure to apply adequate measures of precaution to prevent collateral death of civilians, and the use of human shields, violate article 6 of the Covenant. (para 67)

As the Committee’s Draft explains in an earlier passage, “a deprivation of life that lacks a legal basis or is otherwise inconsistent with life-protecting laws and procedures is, as a rule, arbitrary in nature” (para 17). It follows that a deprivation of life that is inconsistent with the life-protecting rules of international humanitarian law is, as a rule, presumptively arbitrary in nature.

Finally, we come to the Committee’s Draft’s conclusion that “States parties engaged in acts of aggression contrary to the United Nations Charter violate ipso facto article 6 of the Covenant.” By definition, an act of aggression lacks a legal basis in either the inherent right of individual or collective self-defense or the authorization of military force by the United Nations Security Council. Similarly, by definition, an act of aggression is otherwise inconsistent with life-protecting laws, namely the general prohibition of the use of armed force.

So far, so good. The legal interpretation of a treaty term like “arbitrary” should take into account other relevant rules of international law. Since both the law of interstate force and the law of armed conflict aim, in different ways, to protect human life, from war and in war, their rules are undoubtedly relevant. If a deprivation of life violates the life-protecting rules of one or the other, then it likely lacks any justification sufficient to render it non-arbitrary under human rights law.

Importantly, one practical upshot of this view is that it requires States to meet higher standards of transparency and accountability with respect to their military operations. According to the Committee’s Draft,

States parties should[, subject to compelling security considerations,] disclose the criteria for attacking with lethal force individuals or objects whose targeting is expected to result in deprivation of life, including the legal basis for specific attacks, the process of identification of military targets and combatants or persons taking a direct part in hostilities, the circumstances in which relevant means and methods of warfare have been used,  and whether non-lethal alternatives for attaining the same military objective were considered. They must also investigate allegations of violations of article 6 in situations of armed conflict in accordance with the relevant international standards. (para 67)

Relatedly and somewhat provocatively, this view seems to require the Human Rights Committee­—and other human rights bodies that adopt its interpretation—to monitor compliance with the UN Charter and the law of armed conflict. I leave it to others to discuss whether that would be a positive or negative development.

Unfortunately, one sentence of the Committee’s Draft raises several concerns. According to the Committee’s Draft,

Uses of lethal force authorized and regulated by and complying with international humanitarian law are, in principle, not arbitrary. (para 67)

Surprisingly, this sentence closely tracks the language of the Committee’s General Comment 35, which discusses the prohibition of arbitrary arrest and detention under Article 9 of the Covenant. Shaheed Fatima offered several criticisms of General Comment 35 in an earlier post, and the parallel language in the Committee’s Draft seems at least as problematic, if not more so.

First, as Just Security readers know (perhaps too well), there is a debate over whether international humanitarian law authorizes uses of lethal force or merely restrains uses of lethal force. In my view, the Committee should avoid taking sides in this debate. Otherwise, the Committee would have to explain how an act of aggression that fully complies with international humanitarian law could be simultaneously authorized (by international humanitarian law) and prohibited (by the UN Charter). The Committee would then have to explain why such acts of aggression should be considered arbitrary despite having a legal basis (in international humanitarian law) and conforming to life-protecting rules (of international humanitarian law). I suspect that the Committee has higher priorities than resolving these conundrums, and would prefer to simply delete the words “authorized and.”

Second, it is not clear what the phrase “in principle” could mean in this context. As we have seen, acts of aggression regulated by and complying with international humanitarian law are nevertheless arbitrary. So “in principle” cannot mean “in general,” let alone “as a matter of principle,” since most international armed conflicts begin with one party committing an act of aggression against another.

One possibility is that “in principle” means “without more” or “unless such uses of lethal force violate other life-protecting laws” such as the general prohibition of interstate force. On this view, human rights law does not itself restrain the conduct of hostilities, beyond what other rules of international law provide. This reading seems hard to reconcile with an earlier passage of the Committee’s Draft, which states:

A deprivation of life may be authorized by domestic law and still be arbitrary. The notion of “arbitrariness” is not to be equated with “against the law,” but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability, and due process of law as well as elements of reasonableness, necessity, and proportionality.

Similarly, in my view, “arbitrariness” in armed conflict should not be equated with “against other rules of international law.” For example, international humanitarian law does not prohibit killing combatants who could be safely captured (for a contrary view see here). Nevertheless, such unnecessary killing might be considered arbitrary under human rights law. As the African Commission on Human and Peoples’ Rights observes,

Where military necessity does not require parties to an armed conflict to use lethal force in achieving a legitimate military objective against otherwise lawful targets, but allows the target for example to be captured rather than killed, the respect for the right to life can be best ensured by pursuing this option.

In my view, the Committee should not foreclose the possibility that human rights law imposes its own restraints on the conduct of hostilities, prohibiting arbitrary deprivations of life not prohibited by other rules of international law. Instead, the Committee should simply delete this sentence, which seems to raise more questions than it resolves.

The Committee has invited all stakeholders to submit written comments, and I expect that many interested parties will accept that invitation. Overall, there is much to admire in the Committee’s Draft. With tensions escalating between the United States and North Korea, we should welcome the reminder that “States parties that fail to take all reasonable measures to settle their international disputes by peaceful means so as to avoid resort to the use of force do not comply in full with their positive obligation to ensure the right to life.”


Image: Johannes Simon / Getty