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Seeking clarity in relation to the principle of complementarity: reflections on the recent contributions of some international bodies.

Article Excerpt
[There has been an increasing tendency among international institutional bodies to describe the relationship between humanitarian law and human rights law as being "complementary'. This principle is generally understood to mean that the two bodies of law are not mutually exclusive but mutually reinforcing. This rhetoric of complementarity however has tended to obscure the more complex issue regarding the practical implementation of this coexistence between humanitarian law and human rights standards during times of armed conflict. This think piece seeks to consider the extent to which the more recent endeavours of some international bodies are able to develop the notion of complementarity such that it becomes persuasive and operational. It suggests that at present there has been a failure to engage in the detailed and practically grounded analysis that is required to provide the deeper foundations upon which to build an understanding as to the workability of the complementarity principle.]



CONTENTS I Introduction II The International Court of Justice III Human Rights Treaty Monitoring Bodies A Human Rights Committee IV Special Procedures under the Human Rights Council A Special Rapporteurs on Health and Housing B Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions V Some Concluding Thoughts

I INTRODUCTION

The application of international human rights standards during armed conflict has become an accepted principle of international law among international bodies. Since the adoption of the resolution on Human Rights in Armed Conflicts at the International Conference on Human Rights in Tehran in 1968, (1) this principle has been affirmed by an array of diverse bodies over the past 40 years. (2) Initially, the substantive import of this principle caused little concern from an operational perspective, as its meaning was effectively reduced to an application of international humanitarian law as lex specialis. (3) More recently however, there has been a tendency among institutional bodies to describe the relationship between humanitarian law and human rights law as 'complementary'. (4)

This complementarity principle is generally understood by international bodies to mean that the two spheres of law are not mutually exclusive but mutually reinforcing. Thus as the International Court of Justice explained in its advisory opinion on the Israeli Wall, (5) 'some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law, yet others may be matters of both these branches of international law'. (6) In theory, this translates into a requirement that human rights standards are not simply to be interpreted exclusively through the prism of humanitarian law. Rather, they coexist with humanitarian law principles and in certain areas have an independent sphere of operation.

This rhetoric of complementarity, however, has tended to obscure the more complex issue regarding the practical implementation of this coexistence between international humanitarian law and human rights standards during times of armed conflict. It is one thing to assert that human rights law applies during times of armed conflict. It is quite another to demonstrate, with an appropriate degree of precision and clarity, what this means and requires on the ground such that states and their military commanders are able to understand this doctrine and make it meaningful in practice. (7) As Colonel Michael Kelly has rightly observed, 'in the context of real operations, it is extremely important that there be as much clarity and simplicity as possible if we are to expect military commanders and their staff to adhere strictly to legal standards'. (8)

Given this predicament, it would seem reasonable to expect that the activities of international institutional bodies with respect to the implementation and monitoring of human rights during armed conflict may offer some assistance. The aim of this think piece, therefore, is to consider the extent to which some of the more recent endeavours of three international bodies are able to develop the notion of complementarity such that it becomes persuasive and operational. The focus here will be on the decisions of the ICJ in the Israeli Wall advisory opinion and Armed Activities decision; the concluding observations of the human rights treaty monitoring bodies with respect to Israel; (9) and the report of the Special Procedures of the Human Rights Council with respect to their report on their mission to Lebanon and Israel. (10)

It is acknowledged that this brief snapshot cannot provide a comprehensive insight into the extent to which international bodies can, do or should provide clarity with respect to an issue on which precision is required. At the same time, given the complexity of armed conflicts in reality and the complexity of the relationship between humanitarian law and human rights law on paper, these recent developments provide an opportunity to examine the extent to which the work of international bodies is able to grapple with, and provide direction with respect to, the practical application of the doctrine of complementarity.

This analysis reveals that at present the most common approach to the treatment of human rights in armed conflict by international bodies and mechanisms tends to be reductionist. By this I mean that if a matter is seen to have a general nexus with a human right, any interference with that right is considered to be a violation. It is a simplistic approach that lacks the jurisprudential rigour and detail of what I have termed a substantive approach to the assessment of human rights violations. Under such an approach it is necessary to:

* Identify the existence of a nexus between the matter and (a) human right(s);

* Identify the content of that right;

* Identify the nature of the obligation imposed upon a state with respect to the realisation of the right(s) including whether the right(s) is subject to derogation, limitation, or immediate or progressive implementation; and

* Assess whether the state has fulfilled that obligation.

It is suggested that the adoption of such an approach rather than the current tendency towards reductionism, is far more likely to provide the clarity necessary to understand the obligations of states with respect to the effective implementation of human rights standards during armed conflict. Moreover, in the absence of such an approach, the workability of the complementarity principle will remain elusive and its legitimacy compromised.

II THE INTERNATIONAL COURT OF JUSTICE

It is well recognised that the ICJ adjudicates on matters that have a significant bearing on the understanding of human rights standards. (11) Indeed its Nuclear Weapons advisory opinion is repeatedly cited in support of the proposition that such standards continue to apply in times of armed conflict. (12) Two recent decisions of the Court--its Israeli Wall advisory opinion and decision in Armed Activities--not only affirm this principle (13) but engage in a consideration of alleged violations of several human rights standards during the armed conflicts in question. As such, they provide an opportunity to consider the extent to which the jurisprudence of the Court is able to contribute to an understanding of the measures required for the effective implementation of human rights standards during times of armed conflict.

Unfortunately, however, an examination of the Court's work reveals that it tends to adopt a reductionist approach to the treatment of human rights during times of armed conflict. Indeed, in her separate opinion in Israeli Wall, Judge Higgins remarks that with respect to the treatment of economic, social and cultural rights:

The Court has been able to do no more than observe, in a single phrase, that the wall and its associated regime 'impede the exercise by the persons concerned of the right to work, to health, to education and to an adequate standard of living as proclaimed in the International Covenant on Economic, Social and Cultural Rights [and in the United Nations Convention on the Rights of the Child] ...' (14)

The majority of the ICJ provides no meaningful discussion regarding the scope of these rights or the nature of the obligations imposed upon Israel under human rights law to secure their implementation.

The Court's treatment of civil and political rights under the International Covenant on Civil and Political Rights ('ICCPR') (15) is only a little more convincing. With respect to the right to freedom of movement, for example, the ICJ made mention of art 12 of the ICCPR, (16) summarised the ways in which the wall had impacted upon the Palestinian peoples' freedom of movement, (17) and concluded that:

the Court is of the opinion that the construction of the wall and its associated regime impede the liberty of movement of the inhabitants of the Occupied Palestinian Territory ... as guaranteed under Article 12, paragraph 1, of the International...

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