General Comment 36: A Missed Opportunity?

Editor’s note: This article is the third in a series that Just Security is publishing on a interpretive statement issued by the UN Human Rights Committee–General Comment 36–which concerns the arbitrary deprivation of life under the International Covenant on Civil and Political Rights (ICCPR). Be sure to read other contributions in the series, including (i) a Q&A with our co-editor-in-chief Ryan Goodman and two members of the UN Committee, Christof Heyns and the Committee’s rapporteur for the General Comment, Yuval Shany, (ii) Shaheed Fatima’s “Targeted Killing and the Right to Life: A Structural Framework”; and (iii) Fionnuala Ní Aoláin’s “Gendered Security and the Right to Life: Analysis of UN Human Rights Committee’s General Comment.”

 

Over 20 years ago the International Court of Justice (ICJ) stated that “[i]n principle, the right not arbitrarily to be deprived of one’s life applies also in hostilities.” Whether and how human rights law governs armed conflict has been one of the most intensely contested issues in international law ever since. The Human Rights Committee’s new Comment 36 on the right to life under article 6 of the International Covenant on Civil and Political Rights (ICCPR) could have afforded crucial clarifications of the now mainstream position that both international humanitarian law (IHL) and human rights law prima facie apply during war (co-applicability view). Or it could have lent weight to proponents of the decreasingly popular view that IHL displaces human rights law (displacement view), at least during the conduct of hostilities. Instead, the Comment echoes the ICJ in both its forthright endorsement of the co-applicability of the ICCPR even during the conduct of hostilities and its failure to acknowledge and resolve the substantive tensions between the two bodies of law.

Closely following the ICJ’s original pronouncement, the Comment affirms that the “[u]se of lethal force consistent with international humanitarian law and other applicable international law norms is, in general, not arbitrary.” (para 64) Ryan Goodman’s Q & A with Human Rights Committee members Christoph Heyns and Yuval Shany, two of the Comment’s drafters, highlights that the qualification “in general” allows for the possibility that in particular circumstances, IHL’s principles of distinction, proportionality and necessity, on the one hand, and, article 6 of the ICCPR, on the other hand, give diverging answers to the question of when it is permissible to attack a particular person or object. However, the Comment fails to even hint at what those circumstances are. Instead, its valuable contributions to clarifying the meaning of “arbitrariness” solidify the conclusion that complying with IHL systematically, and likely often, leads to conduct that will violate article 6. At least three areas of divergence exist.

First, as previously discussed here, under IHL it is permissible – some scholars argue it is “not prohibited,” a distinction which I bracket in this discussion – to kill combatants and members of non-state armed groups with a continuous combat function even when this is not necessary, for instance, because they could be captured. In contrast, the Comment emphasises that under article 6, the application of lethal force “must represent a method of last resort after other alternatives have been exhausted or deemed inadequate.” (para 12)

The second, less widely appreciated divergence concerns civilians. Killing civilians as a foreseen side-effect of an attack against a carefully selected and vetted military target may not seem arbitrary in the sense of being random, senseless or purposeless. Moreover, killing civilians in accordance with the principle of proportionality – which prohibits incidental harm to civilians only if it is excessive compared to the anticipated military advantage of an attack – obviously has a basis in IHL and thus in law. However, the Comment avers that the lawfulness of a rights deprivation is not the sole determinant of whether it is arbitrary. Rather arbitrariness “must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability, and due process of law.” (para 12) Whatever the precise conception of injustice and inappropriateness the Comment’s drafters had in mind, IHL clearly does not take account of the individual moral or social status of civilians and thus of whether or not their incidental killing in an attack that is lawful under IHL amounts to either.

Even if we allow that the drafters may have meant “legal inappropriateness” or “legal injustice,” which would make the criteria somewhat redundant, IHL-compliant civilian harm is irrevocably arbitrary due to its unpredictability from the perspective of the civilian. Besides the intention of the attacker, the following factors account for the legality of a civilian’s being deprived of her life under IHL: her physical proximity to a military target, the military value that the target has at that moment in the attacker’s campaign, the blast radius or other destructive effects of the weapon the attacker has at their disposal, and the absence of other civilians, who could render the expected incidental harm excessive. With the exception of her physical proximity to the target, these factors are entirely beyond the civilian’s control.Even a civilian’s proximity to a military target does not affect her status under IHL. As I have argued here, IHL does not impose on civilians an obligation to move away from military targets. From the point of view of the civilian, IHL’s permission to kill her incidentally is arbitrary in that her legally sanctioned fate is entirely disconnected from – and cannot be influenced by – her legally required conduct.

One might interject here that during self-defence or law-enforcement, aims for which the Comment allows that killing can be non-arbitrary, it may also sometimes be necessary to kill bystanders. Such bystanders have neither themselves broken the law nor do they threaten anyone. Like civilians in war, they are simply in the wrong place at the wrong time. However, neither article 6 nor the new Comment mention rights deprivations of bystanders. The European Court of Human Rights has contemplated the permissibility of depriving such bystanders of their right to life during law enforcement operations, for instance here. It has generally employed a stricter standard of what makes such a deprivation necessary than is implied by IHL’s demand that attackers take precautions in attack to minimize civilian casualties. As argued here, IHL’s prescription to attack the target with the least expected civilian casualties “when a choice is possible” is generally not interpreted to mean that attackers have to actively explore all alternatives until they are reasonably sure that the target they are about to attack is the only, in the sense of the mildest, means for the achievement of a particular military advantage.

Of course, even if the new Comment had explicitly endorsed the necessary killing of bystanders as non-arbitrary, and necessity under IHL implied the same standard of care as necessity under human rights law, it would still be fundamentally unclear whether killing in war resembles killing in self-defence or killing for the purposes of law-enforcement. The third area of divergence between IHL and article 6 of the ICCPR is that all recognized modes of non-arbitrary deprivations of life for the purposes of the latter have a lawful aim. These exceptional permissions to use lethal force are also “asymmetrical.” The threatening criminal does not gain permission to deprive the law-enforcement officer of his life. IHL, to the contrary, at least in international armed conflict, imposes the same restrictions and by implications affords the same permissions to both sides. Proponents of the co-applicability of IHL and human rights law therefore have to answer the following question: Between two combatants in an international armed conflict who threaten each other with violence, who has a lawful aim for the purposes of article 6 and who threatens an arbitrary deprivation of life?

When it comes to this third area of divergence, the new Comment offers more than silence. It boldly clarifies that “States parties engaged in acts of aggression as defined in international law, resulting in deprivations of life, violate ipso facto article 6 of the Covenant.” (para 70) This view is eminently appealing as it achieves coherence between article 6 and general international law on the resort to force. But it also thereby inevitably cements the gap between article 6 and IHL. It also raises the question of what this means for the right to life of individual combatants. Could we argue now that combatants who contribute to a state’s use of force in contravention of Article 2(4) of the UN Charter (i.e., a state engaged in aggression) are using force unlawfully, even if their conduct accords with IHL? Does participation in hostilities on the side of an aggressor state open a combatant to the non-arbitrary deprivation of her human right to life? It warrants mentioning here that IHL is entirely agnostic about the circumstances under which an individual acquires the status of combatant in the first place. Making an individual’s retention of her right to life contingent on the conduct of her state over which she likely has little or no control seems highly problematic.

In pointing out these substantive divergences between IHL’s principles for the conduct of hostilities and article 6, which the new Comment largely fails to address, I do not wish to suggest that we should return to the days before 1996, when we may have dismissed the relevance of human rights law for the regulation of armed conflict. In the 21stcentury, international law should, as much as possible, afford individuals continued human rights protections during armed conflict. For the governance of detention, internment, occupation or humanitarian access the two bodies of law may well converge naturally. However, when it comes to the conduct of hostilities nothing is gained from the vague affirmation that “both spheres of law are complementary, not mutually exclusive.” (para 64) For the normative authority and the coherence of international law, we may wish for such complementarity. However, where the substantive demands of two potentially applicable bodies of law diverge, neither the law’s authority nor its coherence is served by a failure to acknowledge this.

Instead we must systematically determine when article 6 should continue to govern killing even during armed conflict and when the principles of IHL should displace it. In a forthcoming book, entitled Law Applicable to Armed Conflict (co-authored with Ziv Bohrer and Helen Duffy, CUP), I do this by asking which body of law in which empirical context better fulfills the law’s two moral tasks of reminding the individual seeking its guidance of the moral reasons that apply to her and of reducing unjustified individual rights violations on the battlefield as much as possible. The difficult epistemic context of wartime decision-making and the volitional defects that combatants in the midst of battle are often subject to mean that IHL better performs the second task during protracted hostilities, I argue. A faithful application of article 6 to all-out war would therefore not serve the aim that likely animates many proponents of co-applicability: the better protection of individual rights during the conduct of hostilities.

I appreciate that such an import of moral considerations into the interpretation of international law may be uncongenial to the mandate of the legal experts behind Comment 36. However, there are other ways of resolving conflicts between substantively divergent laws. I wish the Comment, which is otherwise immensely admirable, would have made use of them rather than dig in on the ICJ’s position that substantively divergent bodies of law somehow unproblematically “co-apply.”

 

IMAGE: A Syrian woman hangs laundry in Raqa, Syria, on January 11, 2018. (Photo by DELIL SOULEIMAN/AFP/Getty Images)

  

About the Author(s)

Janina Dill

John G. Winant Associate Professor of U.S. Foreign Policy, Department of Politics & IR, University of Oxford and Co-Director, Oxford Institute for Ethics, Law & Armed Conflict (ELAC). Author of "Legitimate Targets?: International Law, Social Construction and US Bombing." You can follow her on Twitter @JaninaDill.