ii. Applicability of HRsL and LOAC IHL

In other words, the Working Group used LOAC IHL.

Either the applicability of LOAC IHL displaces that of HRsL or it does not.

i. The history and nature of LOAC IHL and HRsL

This history of LOAC IHL indicates

The Court has never referred to the applicability of LOAC IHL.

The reply did not examine the possible applicability of HRsL to detainees not protected by LOAC IHL.

The relationship between international human rights and international humanitarian law during armed conflicts

There may be legal reasons for disputing the applicability of LOAC IHL.

It is equally clear that Israel asserts that, where LOAC IHL is applicable, it displaces the applicability of HRsL.

There is a reason particular to the European Convention why LOAC IHL needs to be taken into account.

There are two different types of problem in establishing the applicability of LOAC IHL.

The relationship between international human rights and international humanitarian law during armed conflicts 23 31 10

The analysis so far has assumed that LOAC IHL is applicable.

They are all issues involving the application, as opposed to the applicability, of HRsL in circumstances in which LOAC IHL is also applicable.

There is, however, nothing in LOAC IHL which precludes them.

The Inter American Commission has shown a willingness explicitly to apply the applicable rules of LOAC IHL.

Where the law of armed conflicts is applicable, human rights law may also be applicable, particularly where individuals are not receiving the protection afforded by the former body of rules.

The first is whether HRsL and LOAC IHL are mutually exclusive.

Neither Israel nor the United States made any reservation or declaration expressly excluding the applicability of HRsL where LOAC IHL is applicable.

The circumstances in which an individual can be targeted The precautions that need to be taken in the planning of an attack The relationship between the principle of proportionality in HRsL and the prohibition of indiscriminate attacks and attacks likely to cause disproportionate harm to civilians under LOAC IHL The extent to which the obligation to carry out an effective investigation into killings and the scope of the obligation in circumstances in which LOAC IHL is applicable

In this working paper the acronym LOAC (law of armed conflict) IHL will be used to describe the totality of rules specifically applicable in situations of conflict.

The relationship between HRsL and LOAC IHL has often arisen in the context of derogation.

That appears to suggest that LOAC IHL will be the basis for analysis of a Convention right and will not merely be used to confirm an analysis based on HRsL.

The Human Rights Committee first made it clear that the Covenant can be applicable in situations in which the law of armed conflict is applicable.

There exists no body which addresses the characterization of a conflict and the applicability of LOAC IHL at the time of the fighting.

(d) Detention the extent to which the HRsL obligations relating to detention, such as the right to habeas corpus and the right to counsel, are applicable to the circumstances of detention under LOAC IHL

Nevertheless, in certain cases, it is possible to detect that there is an awareness of the type of analysis that would be conducted under LOAC IHL.

The United States objected to the exercise of jurisdiction by the Commission because it claimed that the situation was regulated by LOAC IHL.

The extent to which collective penalties, prohibited under LOAC IHL, could be said to constitute cruel or inhuman punishment

Further, it has been suggested that where LOAC IHL is applicable, HRsL has to be interpreted in the light of the other applicable rules.

The Committee also suggests that when examining the necessity for a particular measure in derogation of the Covenant, it can take the law of armed conflict into account.

Human rights treaty bodies have no common approach on how human rights law relates to rules of international humanitarian law during armed conflicts.

Whilst LOAC IHL makes provision for inter State claims for compensation, there is no express provision for individual claims.

The United States simply asserted that the situation was one to which LOAC IHL was applicable, even if the detainees were not protected under that body of rules, and that therefore human rights law was not applicable.

It is necessary to consider whether Israel and the United States can rely on the persistent objector principle to claim that, at least as far as they are concerned, the applicability of LOAC IHL displaces that of HRsL.

Settlement of disputes

Conflict resolution

Disputes and complaints

At the inter State level, LOAC IHL can be enforced as civil international law obligations, for example before the International Court of Justice.

It is therefore not the case that machinery does not exist for the enforcement of LOAC IHL. It is rather that it has not often been used.

This still does not explain how the Committee will interpret an action or measure which is consistent with the law of armed conflict but arguably in violation of human rights law.

The Court has ruled that the relevant provisions of the Geneva Conventions may be taken into consideration when interpreting the American Convention but the Commission and Court can only find a violation of HRsL and not of LOAC IHL.

Ms. Hampson noted that ICJ, the General Assembly and the treaty bodies were all in agreement that human rights law could be applicable to issues that arose during armed conflicts.

(c) Disappearances and the missing in war whether there is a relationship between the LOAC IHL obligations relating to the missing in war and the obligation under HRsL to prevent, put an end to and investigate disappearances