The Relationship Between Economic, Social and Cultural Rights and International Humanitarian Law : An Analysis of Health Related Issues in Non-International Armed Conflicts [1 ed.] 9789004245280, 9789004245273

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The Relationship between Economic, Social and Cultural Rights and International Humanitarian Law

Nottingham Studies on Human Rights Published under the auspices of the Human Rights Law Centre of the University of Nottingham

Edited by

Michael O’Flaherty David Harris

VOLUME 2

The titles published in this series are listed at brill.com/nshr

The Relationship between Economic, Social and Cultural Rights and International Humanitarian Law An Analysis of Health-Related Issues in Non-International Armed Conflicts

By

Amrei Müller

LEIDEN • BOSTON 2013

Library of Congress Cataloging-in-Publication Data Müller, Amrei  The relationship between economic, social and cultural rights and international humanitarian law an analysis of health related issues in non-international armed conflicts / by Amrei Müller. pages cm. -- (Nottingham studies on human rights ; volume 2)  Includes bibliographical references and index.  ISBN 978-90-04-24527-3 (hardback : alk. paper) -- ISBN 978-90-04-24528-0 (e-book) 1. Humanitarian law. 2. Right to health. I. Title.  KZ6471.M855 2013  341.6’7--dc23 2013009861

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CONTENTS Acknowledgements����������������������������������������������������������������������������������������������� xiii Table of Abbreviations�������������������������������������������������������������������������������������������xv Table of International Instruments�������������������������������������������������������������������xix Table of Judgments and Decisions������������������������������������������������������������������ xxiii 1. International Courts/Commissions������������������������������������������������������ xxiii 2. Judgments of National Courts�������������������������������������������������������������� xxvii I. Introduction��������������������������������������������������������������������������������������������������������1 1. Context and Scope of the Study����������������������������������������������������������������1 2. Methodology��������������������������������������������������������������������������������������������������5 3. Structure������������������������������������������������������������������������������������������������������ 10 II. The Development of the Relationship between IHL and IHRL and the Role of the lex specialis Maxim����������������������������������������� 13 1. Introduction������������������������������������������������������������������������������������������������ 13 2. A Brief Overview of the Development of the Relationship between IHL and IHRL������������������������������������������������������������������������������13 2.1. The Early Separation of IHL and IHRL������������������������������������������13 2.2. The Move towards a Complementary Application of IHL and IHRL���������������������������������������������������������������������������������������15 3. The Function of the lex specialis Maxim Regulating the Relationship between IHL and IHRL���������������������������������������������������� 22 3.1. The Rationale of the lex specialis Maxim������������������������������������� 22 3.2. The Two (Presumed) Functions of the lex specialis Maxim�������������������������������������������������������������������������������������������������� 24 3.3. Relationality and Contextuality in the Application of the lex specialis Maxim and the Omnipresence of General Law���������������������������������������������������������������������������������������� 25 3.4. The Systemic Objectives of the Law and the Relation of the lex specialis Maxim to Other Interpretative Methods����� 29 3.5. Critique of the lex specialis Maxim���������������������������������������������� 34 4. Concluding Remarks��������������������������������������������������������������������������������� 35 III. International Humanitarian Law Applicable to NonInternational Armed Conflicts�������������������������������������������������������������������� 39 1. Introduction������������������������������������������������������������������������������������������������ 39

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contents 2. A Brief Introduction to the Development of IHL Applicable to Non-International Armed Conflict�������������������������������������������������� 40 2.1. The Historical Regulation of Rebellion��������������������������������������� 40 2.2. Common Article 3 and Additional Protocol II�������������������������� 42 2.3. More Recent Developments in Treaty and Customary IHL�� 43 3. The Scope of Application of IHL of Non-International Armed Conflicts���������������������������������������������������������������������������������������� 46 3.1. Determining the Existence of a Non-International Armed Conflict and Applicable Rules����������������������������������������� 46 3.2. ‘New’ Types of Non-International Armed Conflicts?�������������� 50 4. Purpose, Limits and Principles of IHL Applicable to NonInternational Armed Conflicts�������������������������������������������������������������� 52  4.1.  Purpose and Limits of IHL������������������������������������������������������������� 52 4.2. Humanity�������������������������������������������������������������������������������������������� 53 4.3. Military Necessity����������������������������������������������������������������������������� 53 4.4. Distinction������������������������������������������������������������������������������������������ 54 4.4.1. Distinction between Civilians and Persons Taking Active/Direct Part in Hostilities�������������������������� 55 4.4.2. Distinction between Military Objectives and Civilian Objects��������������������������������������������������������������������� 56 4.5. Proportionality���������������������������������������������������������������������������������� 58 4.6. Separation of ius ad bellum from ius in bello and the Principle of the Equality of Belligerents������������������������������������ 61 5. Concluding Remarks�������������������������������������������������������������������������������� 64

IV. Economic, Social and Cultural Rights and the Notion of Progressive Realisation����������������������������������������������������������������������������� 67 1. Introduction������������������������������������������������������������������������������������������������ 67 2. Art. 2(1) ICESCR: State Obligations to Progressively Realise ESC Rights��������������������������������������������������������������������������������������������������� 68 3. States’ Three-Fold Obligations to Respect, Protect and Fulfil Economic, Social and Cultural Rights������������������������������������������������� 70 4. The Minimum Core Approach: Minimum Core Obligations and Non-Core Obligations��������������������������������������������������������������������� 74 4.1. The Rationale and Potential of the Minimum Core Approach��������������������������������������������������������������������������������������������� 74 4.2. Open Conceptual Questions on the Minimum Core Approach�������������������������������������������������������������������������������������������� 78 4.3. In Search of a Reasonable Relationship between a Principled Universal Minimum Core and a Pragmatic National Minimum Threshold������������������������������������������������������ 82

contentsvii 4.3.1. The Principled International Minimum Core������������������������������������������������������������������������������������������� 86 4.3.2. The Pragmatic National Minimum Core������������������������ 91 4.4. Non-Core Obligations and their Relationship with the Minimum Core: A Nuanced Priority for Minimum Core Obligations����������������������������������������������������������������������������������������� 96 4.5. ‘Available Resources’ within the Meaning of Art. 2(1) ICESCR������������������������������������������������������������������������������������������������� 99 5. The TripleAQ-Framework: Availability, Accessibility, Acceptability and Quality���������������������������������������������������������������������102 5.1. Availability�����������������������������������������������������������������������������������������103 5.2. Accessibility�������������������������������������������������������������������������������������104 5.3. Acceptability������������������������������������������������������������������������������������105 5.4. Quality�����������������������������������������������������������������������������������������������106 6. Concluding Remarks������������������������������������������������������������������������������106 V. Limitations to and Derogations from Economic, Social and Cultural Rights�������������������������������������������������������������������������������������������������111 1. Introduction����������������������������������������������������������������������������������������������111 2. Limitations to Economic, Social and Cultural Rights�������������������111 2.1. The CESCR’s and States’ Unclear Approach to Limitations to Economic, Social and Cultural Rights������������111 2.2. Article 4 ICESCR: An Analysis of the ICESCR’s General Limitation Clause���������������������������������������������������������������������������115 2.2.1. The Sole Purpose of Limitations to ESC Rights: The ‘Promotion of General Welfare’�������������������������������116 2.2.2. ‘In a Democratic Society’��������������������������������������������������120 2.2.3. ‘Determined by Law’����������������������������������������������������������123 2.2.4. ‘Compatible with the Nature of these Rights’�������������124 2.2.5. Proportionality��������������������������������������������������������������������128 2.3. Understanding Article 4 in the Context of the ICESCR as a Whole: The Relationship between Articles 4 and 2(1) ICESCR���������������������������������������������������������������������������129 2.3.1. Reasons for Limitations and Retrogressive Measures��������������������������������������������������������������������������������130 2.3.2. Respect for Minimum Core Rights/Obligations���������133 2.3.3. In a Democratic Society/in Accordance with the Law�����������������������������������������������������������������������������������134 2.3.4. Proportionality��������������������������������������������������������������������135 2.3.5. Findings from the Comparison���������������������������������������135 3. Derogations from the ICESCR�������������������������������������������������������������137

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contents 3.1. The Purpose of Derogations and Economic, Social and Cultural Rights���������������������������������������������������������������������������������138 3.2. States’ and International Bodies’ Approaches to Derogations from Human Rights Treaties that Do Not Contain a Derogation Clause����������������������������������������140 3.3. Findings on Derogations from the ICESCR�����������������������������143 4. Concluding Remarks������������������������������������������������������������������������������146

  VI. Situations of Active Combat: Integrating the Right to Health in IHL Military-Target Decisions�����������������������������������������������149 1. Introduction��������������������������������������������������������������������������������������������149 2. ‘Dual-Use’ Objects Qualifying as Military Objectives in IHL and the Right to Health�����������������������������������������������������������150 3. The Function of the lex specialis Maxim in Situations of Active Combat�����������������������������������������������������������������������������������153 4. Integrating the Right to Health in IHL Military-Target Decisions: The Definition of a ‘Military Objective’����������������������157 4.1. The Notion of ‘Effective Contribution to Military Action’ of an Object by its ‘Purpose or Use’ and the Right to Health����������������������������������������������������������������157 4.1.1. The Debate in IHL���������������������������������������������������������������158 4.1.2. Adding ICESCR Obligations to the Debate�����������������162 4.2. A ‘Definite Military Advantage’ in IHL and the Right to Health������������������������������������������������������������������������������������������163 4.2.1. The Meaning of a ‘Definite Military Advantage’ in IHL�������������������������������������������������������������������������������������163 4.2.2. Developing Haines’ Arguments�������������������������������������165 4.2.3. Obligations Flowing from the Right to Health����������168 4.2.4. Characteristics of Counterinsurgency Operations and the Notion of a ‘Military Advantage’��������������������171 5. Integrating the Right to Health in IHL Military-Target Decisions: The Principle of Proportionality�����������������������������������173 5.1. The Debate on the Interpretation of the Principle of Proportionality in IHL�������������������������������������������������������������174 5.2. The Right to Health and the IHL Principle of Proportionality������������������������������������������������������������������������������177 5.3. Responding to Anticipated Objections�����������������������������������180 5.3.1. Overburdening Military Commanders�������������������������181 5.3.2. Interference with the Balancing of the Principles of Military Necessity and Humanity����������������������������183

contentsix 5.3.3. Interference with the Principle of the Equality of Belligerents���������������������������������������������������������������������183 6. Concluding Remarks����������������������������������������������������������������������������186 VII. IHL and the Right to Health: Mitigating the Adverse Public Health Impact of Armed Conflicts��������������������������������������������191 1. Introduction��������������������������������������������������������������������������������������������191 2. The lex specialis Maxim—Supporting Complementarity����������192 3. The Right to Health, IHL and the Diversion of Resources from Health Care to Military Spending�������������������������������������������194 3.1. The Promotion of General Welfare in a Democratic Society�����������������������������������������������������������������������������������������������196 3.1.1. The Question of Alternatives�������������������������������������������196 3.1.2. Protecting General Welfare and Ensuring NonDiscrimination��������������������������������������������������������������������199 3.2. Proportionality������������������������������������������������������������������������������201 3.3. ‘Compatible with the Nature of these Rights’�����������������������202 4. The Protection of the Wounded and Sick and the Possible Scope of Health Services to be Provided in NIACs�����������������������203 4.1. Personal Scope of Application���������������������������������������������������204 4.1.1. The Protection of the ‘Wounded and Sick’ in IHL��������������������������������������������������������������������������������������204 4.1.2. Persons Covered by the Right to Health in NIACs����205 4.2. Obligations to Mitigate Direct Health Consequences of Armed Conflicts�����������������������������������������������������������������������206 4.2.1. Obligations to Search and Collect the Wounded and Sick���������������������������������������������������������������������������������206 4.2.2. The Scope of Medical Attention and Care to be Provided to Those Suffering from Direct Health Consequences of Armed Conflicts�����������������210 4.3. Obligations to Mitigate Indirect Health Consequences of Armed Conflicts�����������������������������������������������������������������������217 4.3.1. States’ Obligations under IHL to Alleviate Indirect Health Consequences of Armed Conflicts��������������������������������������������������������������������������������217 4.3.2. Minimum Core Obligations under the Right to Health Addressing Indirect Health Consequences of NIACs���������������������������������������������������218 4.3.3. Mental Health—a Neglected Indirect Health Consequence����������������������������������������������������������������������223

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contents 5. Medical Personnel, Medical Facilities and Medical Transports������������������������������������������������������������������������������������������������224 5.1. The IHL Definitions of ‘Medical Units’ and ‘Medical Transports’—Specifying Obligations under the Right to Health�������������������������������������������������������������������������������������������225 5.2. The IHL Definition of ‘Medical Personnel’— Specification of the Different Health Professionals Needed to Ensure Comprehensive Health Care�������������������227 5.3. Obligations to Promote and Facilitate the Work of Medical Personnel, Units and Transports�������������������������229 5.4. The IHL Obligation to Recognise Medical Personnel, Units and Transports—a Restricting Requirement in Situations where Many Medical Tasks are Fulfilled by International Actors���������������������������������������������������������������233 6. Concluding Remarks���������������������������������������������������������������������������235

VIII. Humanitarian Assistance������������������������������������������������������������������������239 1. Introduction�������������������������������������������������������������������������������������������239 2. Obligations to Request and Accept Humanitarian Assistance�����������������������������������������������������������������������������������������������240 2.1. ‘Undue Hardship Threatening the Survival of Civilians’ and Obligations Flowing from the Right to Health�������������240 2.2. ‘Humanitarian and Impartial Assistance, Conducted without any Adverse Distinction’ and Obligations Flowing from the Right to Health�������������������������������������������245 2.2.1. ‘Humanitarian’ Assistance in IHL and under the Right to Health������������������������������������������������������������246 2.2.2. ‘Impartial’ Assistance ‘Conducted without any Adverse Distinction’ in IHL and the Right to Health������������������������������������������������������������������������������248 2.3. A Few More Observations on States’ Obligations to Consent to Relief Actions�����������������������������������������������������253 3. Obligations to Facilitate the Work of Humanitarian Organisations and the Right to Control�����������������������������������������257 3.1. Protection of International Relief Personnel and Humanitarian Objects��������������������������������������������������������258 3.2. Obligations Relating to the Facilitation of Humanitarian Relief Operations����������������������������������������260 3.3. Rights to Control the Delivery of Humanitarian Assistance��������������������������������������������������������������������������������������264 4. Concluding Remarks���������������������������������������������������������������������������267

contentsxi IX. Concluding Remarks������������������������������������������������������������������������������������271 1. The Function of the lex specialis Maxim and Recent Developments in IHL of NIACs and in the Doctrinal Debate about ESC Rights�����������������������������������������������������������������������271 2. The Relationship of IHL and ESC Rights: Structured by a Context-Sensitive lex specialis Maxim��������������������������������������273 2.1. Easing Tensions between Norms������������������������������������������������275 2.2. Promoting Mutual Reinforcement and Complementarity���������������������������������������������������������������������������280 3. Non-State Armed Groups and the Parallel Application of IHL and the ICESCR��������������������������������������������������������������������������289 4. Towards the Operationalisation of this Study’s Findings������������291 4.1. Human-Rights-Inspired IHL Treaties����������������������������������������292 4.2. Guidelines to Assess the Relationship between IHL and ESC Rights in Different Situations�������������������������������������292 Bibliography�����������������������������������������������������������������������������������������������������������297     1. Literature������������������������������������������������������������������������������������������������������297  2. UN Documents�������������������������������������������������������������������������������������������313  3. Other Documents/Reports����������������������������������������������������������������������321 Index�������������������������������������������������������������������������������������������������������������������������323

ACKNOWLEDGEMENTS This book is based on my PhD thesis that was written between 2008 and 2011 at the University of Nottingham, School of Law. I could not have published this book without the support of many people. I would like to express my warm thanks to my PhD-supervisor at the University of Nottingham, Professor Michael O’Flaherty. His advice and continuing support contributed greatly to the development of this book. Many thanks also to Professor David Harris for constructive discussions on economic, social and cultural rights, and for his encouragement and support in publishing my work. I would further like to thank my two PhD-examiners, Professor Eibe Riedel and Associate Professor Sandesh Sivakumaran for their evaluation of my dissertation comprising helpful comments, as well as the two anonymous reviewers of the Nijhoff Notting­ ham Studies on Human Rights Series who commented on the manuscript at a later stage. And of course thank you to my colleagues and friends at the Universities of Nottingham and Zürich, for helpful conversations and other support you consciously or unconsciously gave while I was working on this project. I am particularly grateful to Chris Grollman for carefully proofreading the book. Any remaining errors are of course my own. I would also like to thank Oxford University Press and Cambridge University Press for permission to include material in this book from articles that have been published in the Human Rights Law Review, Volume 9(4), 2009, and in the International Review of the Red Cross, Volume 94, issue 888, winter 2012. I am thankful for the financial support of the UK Arts and Humanities Research Council and the University of Nottingham, School of Law for providing me with a PhD-scholarship. Without this generous support this research would not have been possible. Last but not least, thank you to my parents who always encouraged and supported me throughout the process of working on this book and far beyond. Oslo, 21 September 2012

TABLE OF ABBREVIATIONS ACHPR ACHR AComHPR

African Charter on Human and Peoples’ Rights American Convention on Human Rights African Commission on Human and Peoples’ Rights American Journal of International Law AJIL Alma-Ata Declaration Declaration of Alma-Ata, adopted by the International Conference on Primary Health Care, Alma-Ata, USSR, 6–12 September 1978 AP I Protocol Additional to the Geneva Conventions Relating to the Protection of Victims of International Armed Conflicts, 1977 AP II Protocol Additional to the Geneva Conventions Relating to the Protection of Victims of Noninternational Armed Conflicts, 1977 BYIL British Yearbook of International Law CCM Convention on Cluster Munitions CCW Conventional Weapons Convention CEDAW Convention on the Elimination of All Forms of Discrimination against Women CEDAWCttee Committee on the Elimination of Discrimination against Women CERD Convention on the Elimination of All Forms of Racial Discrimination CERDCttee Committee on the Elimination of Racial Discrimination CESCR Committee on Economic, Social and Cultural Rights COHRE Centre on Housing Rights and Evictions CRC Convention on the Rights of the Child CRCCttee Committee on the Rights of the Child CUP Cambridge University Press ECHR European Convention on Human Rights ECSR European Committee of Social Rights ECtHR European Court of Human Rights EJIL European Journal of International Law

xvi

table of abbreviations

ESC ESC rights EU GC I-IV Goldstone Report

European Social Charter economic, social and cultural rights European Union Geneva Conventions I-IV, 1949 Report of the United Nations Fact-Finding Mission on the Gaza Conflict, A/HRC/12/48, 25 September 2009 German Yearbook of International Law Commentary on the HPCR Manual on International Law Applicable to Air and Missile Warfare, Program on Humanitarian Policy and Conflict Research at Harvard University, February 2010 HPCR Manual on International Law Applicable to Air and Missile Warfare, Program on Humanitarian Policy and Conflict Research at Harvard University, February 2010 Programme on Humanitarian Policy and Conflict Research, Harvard University UN Human Rights Council Human Rights Committee Human Rights Law Review Human Rights Quarterly International armed conflict Inter-American Commission on Human Rights Inter-American Court of Human Rights International Criminal Court Rome Statute of the International Criminal Court International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights International Court of Justice International and Comparative Law Quarterly International Committee of the Red Cross Sandoz, Swinarski and Zimmermann (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva: ICRC, 1987)

GYIL HPCR Commentary

HPCR Manual

HPCR HRC HRCttee HRLR HRQ IAC IAComHR IACtHR ICC ICC Statute ICCPR ICESCR ICJ ICLQ ICRC ICRC Commentary (AP I/II)



table of abbreviationsxvii

ICRC Commentary (GC I-IV) ICRC Study

Pictet, Commentary on the Geneva Conventions of 12 August 1949 (Geneva: ICRC, 1952–59), Vol. I-IV Henckaerts and Doswald-Beck (eds.), Customary International Humanitarian Law (Cambridge: CUP, 2005) International Criminal Tribunal for Rwanda International Criminal Tribunal for the Former Yugoslavia International Humanitarian Law International Human Rights Law International Law Association International Law Commission Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission, finalised by Martti Koskenniemi, A/CN.4/L.682, 13 April 2006 International Labour Organisation International Review of the Red Cross Israel Law Review Journal of Conflict and Security Law Leiden Journal of International Law Liberation Tigers of Tamil Eelam International Institute of Humanitarian Law, ‘The Manual on the Law of Non-International Armed Conflict’, with Commentary, drafted by Schmitt, Garraway and Dinstein, San Remo, 2006 North Atlantic Treaty Organisation Non-governmental organisation National human rights institution Non-international armed conflict New York University Journal of International Law and Politics Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict Optional Protocol to the International Covenant on Economic, Social and Cultural Rights

ICTR ICTY IHL IHRL ILA ILC ILC Study

ILO IRRC IsrLR JCSL LJIL LTTE Manual of the Law of NIACs NATO NGO NHRI NIAC NYU JIL & Politics OP-CRC-AC OP-ICESCR

xviii

table of abbreviations

OSCE

Organisation for Security and Cooperation in Europe Oxford University Press Prisoner of War Association for International Consultants on Human Rights (CID), Report of the Meeting of Experts on Rights not Subject to Derogations during States of Emergency and Exceptional Circumstances, 17–19 May 1995 Revised European Social Charter South African Journal on Human Rights San Remo Manual on International Law Applicable to Armed Conflicts at Sea, Adopted by the International Institute of Humanitarian Law, 12 June 1994 The Sphere Project, Humanitarian Charter and Minimum Standards in Humanitarian Response (2011) Universal Declaration of Human Rights United Nations United Nations Children’s Fund United Nations Interim Administration Mission in Kosovo United Nations Treaty Series Vienna Convention on the Law of Treaties World Health Organisation Yearbook of International Humanitarian Law

OUP POW Report on Expert Meeting on Derogations RESC SAJHR San Remo Manual

Sphere Charter UDHR UN UNICEF UNMIK UNTS VCLT WHO YIHL

TABLE OF INTERNATIONAL INSTRUMENTS 24 April 1863

22 August 1864 11 December 1868 18 October 1907

27 July 1929 27 July 1929 26 June 1945 9 July 1948 9 December 1948 10 December 1948 1 July 1949 12 August 1949 12 August 1949 12 August 1949

Instructions for the Government of Armies of the United States in the Field, prepared by Francis Lieber, promulgated as General Order No. 100 by President Lincoln (Lieber Code) Geneva Convention for the Amelioration of the Conditions of the Wounded in Armies in the Field (replaced by 1949 GCs) St. Petersburg Declaration Renouncing the Use, in Times of War, of Explosive Projectiles Under 400 Grammes Weight Hague Convention (IV) Respecting the Laws and Customs of War on Land and its Annex: Regulations Respecting the Laws and Customs of War on Land (Hague Convention IV) Geneva Convention for the Amelioration of the Wounded and Sick in Armies in the Field (replaced by 1949 GCs) Geneva Convention Relative to the Treatment of Prisoners of War (replaced 1949 GCs) Charter of the United Nations ILO Freedom of Association and Right to Organise Convention, No.87, 68 UNTS 17 Convention on the Prevention and Punishment of the Crime of Genocide, 78 UNTS 277 Universal Declaration of Human Rights, GA Res 217 (A) III (UDHR) ILO Rights to Organise and Collective Bargaining Convention, No.98, 96 UNTS 257 Geneva Convention I for the Amelioration of the Conditions of the Wounded and Sick in Armed Forces in the Field, 75 UNTS 31 (GC I) Geneva Convention II for the Amelioration of the Conditions of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 75 UNTS 85 (GC II) Geneva Convention III Relative to the Treatment of Prisoners of War, 75 UNTS 135 (GC III)

xx 12 August 1949

table of international instruments

Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War, 75 UNTS 287 (GC IV) 4 November 1950 European Convention on Human Rights, 213 UNTS 221 (ECHR) 28 July 1951 Convention Relating to the Status of Refugees, 189 UNTS 137 (Refugee Convention) 4 June 1952 ILO Convention Concerning Minimum Standards of Social Security, No.102, 210 UNTS 131 14 May 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict, 249 UNTS 240 18 October 1961 European Social Charter, 529 UNTS 88 (ESC) 6 April 1964 European Code of Social Security, 648 UNTS 235 7 March 1966 International Convention on the Elimination of All Forms of Racial Discrimination, 660 UNTS 195 (CERD) 16 December 1966 International Covenant on Economic, Social and Cultural Rights, 933 UNTS 3 (ICESCR) 16 December 1966 International Covenant on Civil and Political Rights, 999 UNTS 171 (ICCPR) 23 May 1969 Vienna Convention on the Law of Treaties, 1155 UNTS 133 (VCLT) 22 November 1969 American Convention on Human Rights, 1144 UNTS 123 (ACHR) 8 June 1977 Geneva Protocol I Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 1125 UNTS 3 (AP I) 8 June 1977 Geneva Protocol II Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, 1125 UNTS 609 (AP II) 18 December 1979 Convention on the Elimination of All Forms of Discrimination against Women, 1249 UNTS 13 (CEDAW) 10 October 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, 1342 UNTS 137 (CCW) 10 October 1980 Protocol III on Prohibitions or Restrictions on the Use of Incendiary Weapons, 1342 UNTS 171 (Protocol III to the CCW)

27 June 1981

table of international instrumentsxxi

African Charter on Human and Peoples’ Rights, 1520 UNTS 217 (ACHPR) 20 November 1989 Convention on the Rights of the Child, 1577 UNTS 3 (CRC) 18 December 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, 2220 UNTS 3 13 October 1995 Protocol IV on Blinding Laser Weapons to the Conventional Weapons Convention, 1380 UNTS 370 (Protocol IV to the CCW) 3 May 1996 Revised European Social Charter, 2151 UNTS 277 (RESC) 3 May 1996 Protocol II on Mines, Booby-Traps and Other Devices to the Conventional Weapons Convention, 2048 UNTS 39 (Protocol II to the CCW as amended on 3 May 1996) 18 September 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, 2056 UNTS 211 (Ottawa Convention) 17 July 1998 Rome Statute of the International Criminal Court, 2187 UNTS 90 (ICC Statute) 26 March 1999 Second Hague Protocol for the Protection of Cultural Property in the Event of Armed Conflict, 2253 UNTS 172 25 May 2000 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, 2173 UNTS 222 (OP-CRC-AC) 20 December 2001 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, Amendment of Article 1, 2260 UNTS 80 28 November 2003 Protocol V on Explosive Remnants of War to the Conventional Weapons Convention, 2399 UNTS 100 (Protocol V to the CCW) 30 May 2008 Convention on Cluster Munitions, entered into force on 1 August 2010 (CCM) 10 December 2008 Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, A/RES/63/117 (not yet in force (September 2012))

TABLE OF JUDGMENTS AND DECISIONS 1. International Courts/Commissions International Court of Justice Application of the International Convention on the Elimination of all Forms of Racial Discrimination (Georgia v Russian Federation), Provisional Measures Order, 15 October 2008, ICJ Reports 2008. Case Concerning Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of Congo), Judgment, 30 November 2010, ICJ Reports 2010, (Diallo Case). Case Concerning Armed Activities on the Territory of the Congo (DRC v Uganda), Judgment, 19 December 2005, ICJ Reports 2005, (Congo Case). Case Concerning the Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation), Preliminary Objections, Judgment, 1 April 2011, ICJ Reports 2011. Case Concerning the Gabčíkovo-Nagymaros Project (Hungary v Slovakia), Judgment, 25 September 1997, ICJ Reports 1997. Dissenting Opinion of Judge Weeramantry to the ICJ Nuclear Weapons Opinion, ICJ Reports 1996. Jurisdictional Immunities of the State (Germany v Italy), Judgment, 3 February 2012. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 21 June 1971, ICJ Reports 1971. Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, ICJ Reports 2004, (Wall Opinion). Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, ICJ Reports 1996, (Nuclear Weapons Opinion). Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v US), Judgment, 27 June 1986, ICJ Reports 1986, (Nicaragua Judgment). Reservations to the Convention on the Prevention and Punishment of Genocide, Advisory Opinion, 28 May 1951, ICJ Reports 1951. Separate Opinion of Vice-President Weeramantry in the GabčikovoNagymaros Project (Hungary v Slovakia), Judgment, ICJ Reports 1997.

xxiv

table of judgments and decisions European Court of Human Rights

Al-Adsani v UK, Appl. No. 35763/97, Judgment (Grand Chamber), 21 November 2001, 34 EHRR 273 GC. Albekov and Others v Russia, Appl. No. 68216/01, Judgment, 6 April 2009. Bensaid v UK, Appl. No. 44599/98, Judgment, 6 February 2001, 33 EHRR 205. Calvelli and Ciglio v Italy, App. No. 32967/96, Judgment, 17 January 2002. Campbell v UK, Appl. No. 13590/88, Judgment, 25 March 1992, 15 EHRR 137. Chassagnou v France, Appl. Nos. 25088/94; 28331/95; 28443/95, Judgment (Grand Chamber), 29 April 1999, 29 EHRR 615. Cyprus v Turkey, Appl. No. 25781/94, Judgment (Grand Chamber), 10 May 2001, 35 EHRR 731 GC. D v UK, Appl. No. 30240/96, Judgment, 2 May 1997, 24 EHRR 423. Dudgeon v UK, Appl. No. 7525/76, Judgment, 22 October 1981, 4 EHRR 149. Erdogan and Others v Turkey, Appl. No. 19807/92, Judgment, 25 April 2006. Ergi v Turkey, Appl. No. 23818/94, Judgment, 28 July 1998, 32 EHRR 388. Fogarty v UK, Appl. No. 37112/97, Judgment (Grand Chamber), 21 November 2001, 24 EHRR 302. Ilaşcu and Others v Moldova and Russia, Appl. No. 48787/99, Judgment (Grand Chamber), 8 July 2004, 40 EHRR 1030 GC. Isayeva v Russia, Appl. No. 57950/00, Judgment, 24 February 2005, 41 EHRR 791. Isayeva, Yusupova and Bazayeva v Russia, Appl. Nos. 57947/00; 57948/00; 57949/00, Judgment, 24 February 2005, 41 EHRR 847. Khatsiyeva and Others v Russia, Appl. No. 5108/02, Judgment, 17 January 2008. Kokkinakis v Greece, Appl. No. 14307/88, Judgment, 25 May 1993, 17 EHRR 397. L.C.B. v UK, Appl. No. 23413/94, Judgment, 9 June 1998, 27 EHRR 212. Marckx v Belgium, Appl. No. 6833/74, Judgment, 13 June 1979, 2 EHRR 330. McElhinney v Ireland, Appl. No. 31253/96, Judgment (Grand Chamber), 21 November 2001, 34 EHRR 322. Mezhidov v Russia, Appl. No. 67326/01, Judgment, 25 September 2008. Nitecki v Poland, Appl. No. 65653/01, Decision, 21 March 2002. Olsson v Sweden (No. 1), Appl. No. 10465/83, Judgment, 24 March 1988, 11 EHRR 259. Osman v UK, Appl. No. 23452/94, Judgment (Grand Chamber), 28 October 1998, 29 EHRR 245. Ahmet Özkan and Others v Turkey, Appl. No. 21689/93, Judgment, 6 April 2004.



table of judgments and decisionsxxv

Pentiacova and 48 Others v Moldova, Appl. No. 14462/03, Decision, 4 January 2005. Sunday Times v UK (No. 1), Appl. No. 6538/74, Judgment, 26 April 1979, 2 EHRR 245. Tyrer v UK, Appl. No. 5856/72, Judgment, 25 April 1978, 2 EHRR 1. Young, James and Webster v UK, Appl. Nos. 7601/76; 7806/77, Judgment, 13 August 1981, 4 EHRR 38. Inter-American Commission on Human Rights/Inter-American Court of Human Rights Bámaca-Velásquez v Guatemala, Judgment, Inter-American Court of Human Rights, Ser.C, No70, 27 November 2000. Coard v USA, Case 10.951, OAE/ser.L/V/II.106.doc.3.rev, Inter-American Commission on Human Rights, 29 September 1999. Ituango Massacres v Colombia, Judgment, Inter-American Court of Human Rights, Ser.C. No148, 1 July 2006. Juan Carlos Abella v Argentina, Case 11.137, OAE/ser.L/V/II.98. doc.6.rev, Inter-American Commission on Human Rights, 18 November 1997. Mariripán Massacre v Colombia, Judgment, Inter-American Court of Human Rights, Ser.C. No134, 15 September 2005. African Commission on Human and Peoples’ Rights Communication 155/96, The Social and Economic Rights Action Center and the Center for Economic and Social Rights v Nigeria (2001), 15th Annual Activity Report of the AComHPR, 2001–2002, Annex V. Communication 227/99, Democratic Republic of Congo v Burundi, Rwanda and Uganda (2003), 20th Annual Activity Report of the AComHPR, 2006, Annex IV. Communication 74/92, Commission Nationale des Droits de l’Homme et des Libertes v Chad, 9th Annual Activity Report of the AComHPR, 1995–1996, Annex VIII. Communications 54/91, 61/91, 98/93, 96/93, 164/97–196/97 and 210/98 (all against the Islamic Republic of Mauritania), 13th Annual Activity Report of the AComHPR, 1999–2000, Annex V. European Committee of Social Rights Complaint 48/2008, European Roma Rights Centre (ERRC) v Bulgaria, Decision on the Merits, 18 February 2009.

xxvi

table of judgments and decisions

Complaint 43/2007, Sindicato dos Magistrados do Ministério Publico (SMMP) v Portugal, Decision on the Merits, 3 December 2008. Complaint 42/2007, International Federation of Human Rights Leagues (IFHR) v Ireland, Decision on the Merits, 3 June 2008. Complaint 41/2007, Mental Disability Advocacy Center (MDAC) v Bulgaria, Decision on the Merits, 3 June 2008. Complaint 39/2006, European Federation of National Organisations Working with the Homeless (FEANTSA) v France, Decision on the Merits, 5 December 2007. Complaint 33/2006, International Movement ATD Fourth World v France, Decision on the Merits, 5 December 2007. Complaint 31/2005, European Roma Rights Centre v Bulgaria (ERRC), Decision on the Merits, 18 October 2006. Complaint 30/2005, Marangopoulos Foundation for Human Rights (MFHR) v Greece, Decision on the Merits, 6 December 2006. Complaint 27/2004, European Roma Rights Centre (ERRC) v Italy, Decision on the Merits, 7 December 2005. Complaint 15/2003, European Roma Rights Centre (ERRC) v Greece, Decision on the Merits, 8 December 2004. Complaint 14/2003, International Federation of Human Rights Leagues (FIDH) v France, Decision on the Merits, 3 November 2004. Complaint 8/2000, Quaker Council for European Affairs (QCEA) v Greece, Decision on the Merits, 27 April 2001. Complaint 1/1998, International Commission of Jurists v Portugal, Decision on the Merits, 9 September 1999. International Criminal Tribunal for the former Yugoslavia Prosecutor v Boškoski and Tarčulovski, Trial Chamber Judgement, IT-0482-T, 10 July 2008. Prosecutor v Galić, Trial Camber Judgement, IT-98-29-T, 5 December 2003. Prosecutor v Hadžihasanović and Kubura, Trial Chamber Judgement, IT-0147-T, 25 March 2006. Prosecutor v Kupreškić, Trial Chamber Judgement, IT-95-16-T, 14 January 2000. Prosecutor v Limaj, Trial Chamber Judgement, IT-03-66-T, 30 November 2005. Prosecutor v Martić, Review of Indictment Pursuant to Rule 61, Trial Chamber, IT-95-11-R61, 8 March 1996.



table of judgments and decisionsxxvii

Prosecutor v Milošević, Decision on Motion for Judgement of Acquittal, IT-02-45-T, 16 June 2004. Prosecutor v Tadić, Trial Chamber Judgement, IT-94-1-T, 7 May 1997. Prosecutor v Tadić, Appeals Chamber Decision on Defence Motion for Interlocutory Appeal on Jurisdiction, IT-49-I-AR72, 2 October 1995, (Tadić Jurisdiction). Prosecutor v Tadić, Appeals Chamber Judgement, IT-49-I-A, 15 July 1999. International Criminal Tribunal for Rwanda Prosecutor v Akayesu, Judgement, ICTR-96-4-T, 2 September 1998. Human Rights Committee Individual Communication (633/95): Gauthier v Canada, CCPR/C/65/ D/633/1995, 7 April 1999. 2. Judgements of National Courts Germany BVerfG, 1 BvL 1/09 vom 9.2.2010. BVerfG, *Leistungspflicht der gesetzlichen Krankenversicherung bei neuen Behandlungsmethoden—“Bioresonanztherapie”, Beschluss vom 6. Dezember 2005, 1 BvR 347/98. India Paschim Banga Khet Majoor Samity v State of West Bengal, Supreme Court of India, Judgment of 6 May 1996, (1996) 4 SCC 37; AIR SC 2426. People’s Union for Civil Liberties v Union of India, Supreme Court of India, Writ Petition (Civil) No.196 of 2001, Interim Order of 2 May 2003. South Africa Minister of Health v Treatment Action Campaign (TAC), Constitutional Court of South Africa, Judgment of 5 July 2002, [2002] 5 LRC 216. Soobramoney v Minister of Health (Kwazulu-Natal) Constitutional Court of South Africa, Judgment of 27 November 1997, [1998] 2 LRC 524.

xxviii

table of judgments and decisions

Government of the Republic of South Africa and Others v Grootboom, Constitutional Court of South Africa, Judgment of 11 May 2000, [2001] 3 LRC 209. Switzerland V v Einwohnergemeinde X und Regierungsrat des Kantons Bern, BGE/ATF 121 I 367, Federal Court of Switzerland, 27 October 1995. United Kingdom R v Secretary of State for the Home Department ex p Adam; R v the Secretary of State for the Home Department ex p Limbuela and R v Secretary of State for the Home Department ex p Tesema, House of Lords, Judgment of 3 November 2005, [2005] UKHL 66.

CHAPTER ONE

INTRODUCTION 1. Context and Scope of the Study Armed conflicts interfere greatly with people’s ability to enjoy their economic, social and cultural (ESC) rights. To take the example of the right to health that will be a focus throughout this work, among the direct and indirect effects of armed conflicts on public health are injuries resulting from hostilities, long-term physical disabilities and mental health problems, increasing rates of epidemic and endemic diseases, insufficient health care for mothers and children, substantial reductions of public health budgets, the departure of trained medical professionals, and the interruption of medical- and food supplies. These effects are associated with a complete or partial breakdown of health systems and the destruction of essential infrastructure in armed conflicts. In particular the indirect and long-term adverse impact of armed conflicts on public health have frequently been underestimated and overlooked by analysts from many disciplines, including humanitarian and human rights lawyers. Only more recently have epidemiological studies started to capture this impact systematically.1 In this vein, in his 2005 report on the Protection of Civilians in Armed Conflicts the UN SecretaryGeneral observed: The real collateral damage of many conflicts over the past five years lies in the breakdown of basic services and infrastructure as well as in the disruption or loss of livelihoods. This can result in increasing malnutrition, the spread of epidemic diseases and increasing incidence of HIV/AIDS, which all too often complete the harsh picture for civilians living in armed conflict.2

Recognising the immense indirect and long-term socio-economic effects of armed conflict was one starting point for this study. The question emerged as to whether and if so how, the law applicable to armed conflicts 1 See chapter VI, sections 5.2 and 5.3 for examples. 2 Report of the UN Secretary-General on the Protection of Civilians in Armed Conflict, S/2005/740, 28 November 2005, para. 5.

2

chapter one

takes account of these effects and contributes to their mitigation. This is intrinsically linked to the question of the parallel application of Inter­ national Humanitarian Law (IHL) and International Human Rights Law (IHRL), in particular IHL and ESC rights. This study is about the legal (and to some extent practical) implications of the parallel applicability of IHL and the International Covenant on Economic Social and Cultural Rights (ICESCR). Albeit in small steps, in recent years progress has been made in the analysis of the relationship between and parallel application of these two bodies of law.3 Many questions remain about the extent to which IHL is indeed supplemented and/or modified by the simultaneous application of IHRL and vice versa, and how exactly this can guide the behaviour and activities of different actors involved in armed conflicts. A large part of the discussion about the relationship between IHL and IHRL seems still confined to identifying general overlaps or conflicts between the two bodies of law. As one prominent observer noted: It is recognised today that human rights law is not generally displaced in times of armed conflict by international humanitarian law. Yet in large parts this new insight remains to be particularised as to its actual consequences.4

This is particularly true for the parallel application of IHL and the ICESCR, as more nuanced analyses of the relationship between the two bodies of law largely concentrate on civil and political rights,5 above all the right to life and the right to a fair trial.6 It seems of little avail to tell soldiers that, in addition to IHL, they are bound by IHRL, including by ESC rights,7 without spelling out the legal and practical implications for their conduct. Furthermore, not much seems to be gained by restating states’ broad obligations to ensure that national and international humanitarian actors and health professionals comply with IHL and IHRL when carrying out their work in armed con­ flict situations. Such broad statements are unlikely to have any practical impact, can cause confusion and even weaken the implementation of the 3 For more details see chapter II, section 2.2. 4 Tomuschat (2010), p. 15; see similar observations by Ben-Naftali (2006), p. 95; and in the Working Paper on the Relationship between Human Rights Law and International Humanitarian Law for the UN Sub-Commission on the Promotion and Protection of Human Rights, E/CN.4/Sub.2/2005/14, 21 June 2005, para. 5. 5 Exceptions are Perrin (2009); Mottershaw (2008); and Doswald-Beck (2011). 6 E.g. Sassòli and Olsen (2008); and Olsen (2009). 7 As observed by Heintschel von Heinegg (2002), p. 56.



introduction3

law, as the involved parties can pick and choose from the rules in accordance with their current political, economic, military or other interests.8 Against this background, this study explores the parallel application of IHL and ESC rights in greater detail, with a special emphasis on healthrelated issues in non-international armed conflicts (NIACs). It analyses cases where substantive tensions exist between the right to health and IHL and discusses how those tensions could be eased. Likewise, there are many cases of mutual reinforcement and mutual modification of IHL and ESC rights the details of which wait to be expressed in more explicit terms. The parallel application of IHL and ESC rights to NIACs also raises questions concerning its impact on the structure of IHL of NIACs. Integrating IHRL into IHL of NIACs primarily for the state party to the conflict could unduly interfere with the principle of the equality of belligerents that is still considered important for ensuring compliance with IHL.9 A thorough analysis of the legal implications of the parallel application of IHL and the ICESCR involves a range of complex legal questions not all of which can be analysed in equal depth in this study. First, since the vast majority of armed conflicts around the world are NIACs today,10 the study concentrates on the analysis of the law that is applicable to this type of conflict. Related to this choice, the book does not engage in an in-depth discussion of the extraterritorial applicability of the ICESCR, and the possibly more limited scope of states’ obligations flowing from the Covenant when they act extraterritorially. The prototype of a NIAC that underlies the discussion is thus that of a ‘classical’ NIAC taking place between a relatively strong non-state armed group and a state, on the territory of this same state. Yet, this does not suggest that findings on the parallel application of IHL and the right to health are not equally relevant to situations of international armed conflict (IAC), or for NIACs that take place between a non-state armed group and a state on another state’s territory.11 In their application of the law, states (and international organisations) may actually not distinguish between different types of NIACs and/or IACs. The sources relied on in the analysis that follows also include at times those that refer to IHL applicable to IACs, mainly because literature on IHL still focuses largely on the law of IACs. It is used to draw parallels between IHL   8 This is clear from the Bush Administration’s legal strategy in its ‘War on Terror’ in regard to detention and targeted killings; see e.g. Satterthwaite (2007); and Sassòli (2004).   9 See chapter III, section 4.6 and chapter VI, sections 4.2.2 and 5.3.3. 10 See e.g. Themnèr and Wallensteen (2012).  11 See chapter III, section 3.2.

4

chapter one

applicable to IACs and its interpretation, and IHL applicable to NIACs. As long as the factual differences between NIACs and IACs are kept in mind,12 i.e. the fact that at least one of the parties to the conflict is a non-state actor, this is not problematic, since many IHL rules and principles explored in this study are broadly similar in IACs and NIACs. However, this study does not call for abandoning the distinction between IACs and NIACs in IHL. Second, the analysis does not aim to cover all aspects of non-state armed groups’ obligations under IHL and possibly IHRL, let alone to develop a theory of non-state armed groups’ obligations under IHL and IHRL—possibly in the form of a ‘sliding scale’13 of obligations, providing for non-state armed groups’ increasing obligations according to their degree of organisation and the intensity of violence in which they are involved. To achieve this and to close substantial knowledge gaps in this area, another book would need to be written, conducting thorough research into the actual practice of diverse non-state armed groups around the world in regard to socio-economic issues,14 as well as into the opinion of states and international organisations on these matters and of the approach adopted in national and international jurisprudence. The current study thus concentrates on states’ obligations. However, it does not entirely ignore of non-state armed groups. It recognises that the binding force of IHL for non-state armed groups is rarely questioned,15 but that it remains unclear whether non-state armed groups are directly bound by IHRL, and if so, to what extent.16 The possibility should not be excluded that well-organised, strong non-state armed groups can have limited human rights obligations when they control territory and establish a functioning administration.17 It seems, however, problematic to argue that all 12 See chapter III, section 2.3. 13 For suggestions into this direction see Sassòli (2010), p. 20; see also the Debate in (2011) 93 IRRC 425 by Sassòli and Shany. 14 As suggested by Sivakumaran (2011c), such a study would be warranted to develop IHL of NIACs further, taking due account of the fact that at least one of the parties to the conflict is a non-state actor. 15 However, the discussion about the (theoretical) reasons why non-state armed groups are bound by IHL is on-going; see e.g. Sivakumaran (2006). 16 In the affirmative see Clapham (2006), for a rejection see Zegveld (2002), pp. 38–54. So far non-state armed groups cannot become parties to international human rights treaties. 17 Several resolutions of the UN Security Council suggest that non-state armed groups are bound by IHRL. See for example the recent Report of the Secretary-General’s Panel of Experts on the Accountability in Sri Lanka, 31 March 2011, para. 188; and the discussion by Clapham (2006), pp. 500–508.



introduction5

non-state armed groups are obliged to implement the sometimes farreaching obligations flowing from the right to health, which is the focus of this study. For instance, non-state armed groups will more often than not lack the capacity to devise and implement a public health policy and to build an accessible public health system as states are obliged to do to comply with the right to health. Based on this, it is assumed that non-state armed groups’ obligations towards humanitarian organisations are key in situations of NIACs to ensure that basic socio-economic needs of the affected populations are met. Chapter VIII thus explores not only states’ but also as far as possible non-state armed groups’ obligations toward humanitarian organisations that may take on the implementation of ESC rights and relevant IHL in times of armed conflict. Moreover, the study discusses the possible impact that the application of IHRL obligations in parallel to IHL primarily for the state party to the conflict can have for the equality of belligerents, a principle that is considered important for ensuring compliance with IHL. Third, this study focuses on health-related issues, i.e. the parallel application of the right to health and relevant rules of IHL. This choice was made because of the aforementioned damaging effects armed conflicts can have on public health, as well as the differing approaches IHL and the right to health adopt to minimise and mitigate these effects. Yet, chapter IX attempts to draw more general conclusions on the parallel application of the ICESCR and IHL in NIACs that go beyond the conclusions on the characteristics of the relationship between IHL and the right to health. 2. Methodology This study conducts a doctrinal analysis of the law. In accordance with Art. 31 of the Vienna Convention on the Law of Treaties (VCLT), treaty provisions should be interpreted according to their ordinary meaning, in their context and in the light of their object and purpose. While textual interpretation of the ICESCR and relevant rules of IHL can be beneficial for clarifying the meaning of treaty provisions, the teleological approach is equally important for the interpretation of treaties with a humanitarian purpose. A special focus on teleological methods promises to ensure that these treaties are interpreted in a manner favourable to the individual.18

18 For more details see chapter II, section 3.4.

6

chapter one

A variety of sources are used to explore the normative content of the rules discussed and their relation to each other. In regard to the interpretation of the ICESCR, the study builds to a substantial extent on the work of the Committee on Economic, Social and Cultural Rights (CESCR or Committee) to interpret the Covenant. While the different documents issued by the CESCR—among them general comments, concluding observations and statements—are not legally binding interpretations of the ICESCR, there is no doubt that they constitute a legitimate source for the reading of the ICESCR.19 This has been confirmed recently by the International Court of Justice (ICJ). In regard to the interpretation of the International Covenant on Civil and Political Rights (ICCPR) by the UN Human Rights Committee (HRCttee), the Court held that when exercising its own judicial function it ‘should ascribe great weight to the interpretation adopted by this independent body that was established specifically to supervise the application of that treaty [the ICCPR]’.20 The same holds true for the interpretation of the ICESCR by the CESCR.21 Through its interaction with states in the reporting process the CESCR has a unique overview of how the Covenant is implemented in different countries, and of the challenges states face with this implementation. The CESCR’s general comments, providing detailed interpretation of the ICESCR’s different Articles, are built on this experience.22 It is therefore also suggested that in particular general comments that clearly purport to interpret single provisions of the Covenant fall under ‘any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation’23 that can be relied on in the interpretation of treaties in accordance with the VCLT.24 This argument gains force when the fact is considered that human rights treaties—in distinction from other multilateral treaties—are primarily adopted for the 19 O’Flaherty (2006), pp. 33–37 (including related footnotes); Craven (1995), pp. 3–6; and ILA, Committee on International Human Rights Law and Practice, Berlin Conference Report (2004), paras. 8–27 [hereinafter: ILA Report 2004]. 20 ICJ, Case Concerning Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of Congo), Judgment, ICJ Reports 2010, para. 66 [hereinafter: Diallo Case]; see also ICJ, Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, paras. 109–113 and 140 [hereinafter: Wall Opinion]; and the cases of the ECtHR, the ICTY and ICTR collected in the ILA Report (2004), paras. 118–122 and 138–142. 21 See in particular, ICJ, Wall Opinion, para. 112. 22 As noted e.g. in CESCR, General Comment 14 (2000), para.6; and General Comment 12 (1999), para. 2. 23 Art. 31(3)(b) VCLT. 24 ILA Report (2004), para. 20; also discussed by O’Flaherty (2006), p. 35.



introduction7

benefit of third parties (individuals) and provide for an independent monitoring mechanism to promote their implementation. Therefore, the notion of ‘subsequent practice’ may be broader than what is usually understood as ‘subsequent state practice’, and include interpretations offered by the CESCR.25 Moreover, even though there are no systematic studies on this issue, general comments can ‘generate’ state practice and encourage national courts to take into account the ICESCR.26 This gives documents of the CESCR a notable authority that will be relied on for the interpretation of the ICESCR in this work. In regard to understanding the normative content of ESC rights, this study further relies on decisions of the European Committee of Social Rights (ECSR), and, albeit to a lesser extent, the Inter-American Com­ mission on Human Rights (IAComHR) and the African Commission on Human and Peoples’ Rights (AComHPR) and on documents of UN human rights treaty-monitoring bodies other than the CESCR. It is suggested that these non-binding decisions and documents have a status similar to the CESCR’s general comments and concluding observations: they constitute documents with notable authority for the interpretation of the provisions in the respective treaties,27 but are not legally binding. Furthermore, binding judgments of the European Court of Human Rights (ECtHR) and of the Inter-American Court of Human Rights (IACtHR) sometimes form part of the analysis, as far as they directly or indirectly refer to the protection of ESC rights. However, the focus on the parallel application of IHL and the ICESCR makes documents of the CESCR usually the first reference point in the discussion. Where possible, national court decisions involving ESC rights and recent academic literature reviewing this emerging socio-economic rights jurisprudence from different countries are also relied on to interpret the provisions of the ICESCR, in particular in chapters IV and V. As subsidiary sources of international law they can have some influence,28 in particular when there are repeated decisions on a particular legal point.29 However, compared to civil and political rights there is still much less national and international case law relating to ESC rights that might assist in the

25 As noted by Craven (1995), p. 4; also suggested in ILA Report (2004), para. 22; and O’Flaherty (2006), p. 35. 26 See e.g. the ILA Report (2004), paras. 80–101. 27 ICJ, Diallo Case, paras. 66–68 and 77. 28 Art. 38(1)(d) ICJ Statute. 29 Aust (2005), p. 10; and Brownlie (2008), p. 23.

8

chapter one

process of ‘normative development’ of the provisions of the ICESCR. In addition, the quality of national decisions can vary considerably.30 At times, the travaux préparatoires of the ICESCR are relied on to further resolve ambiguities that arise from the textual and teleological interpretation of the ICESCR’s provisions. As supplementary means of interpretation,31 they are resorted to in particular in chapter V. That chapter analyses Art. 4 ICESCR, which has not received much attention by states and the CESCR so far, and the travaux préparatoires can thus supplement the literal and teleological interpretation of this Article. Other sources that are used in the analysis of ESC rights and IHL are resolutions of the UN Security Council, the UN General Assembly and the UN Human Rights Council. While the former may be binding on all states, the latter two are non-binding. Yet, they can reflect states’ interpretations of particular Articles of the ICESCR, other human rights treaties and norms of IHL, in particular when they directly refer to certain provisions or treaties.32 They are also regularly seen as contributing to the formation of custom, either mirroring state practice or opinio iuris.33 Further, the study also refers to reports of the UN Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health (Special Rapporteur on the Right to Health), of other special procedure mandate-holders of the UN Human Rights Council and the reports of the UN Secretary-General to the UN Security Council. These are not legally binding documents, but they contain valuable reflections on the obligations flowing from the right to health, on the interpretation of IHL and on the common challenges faced in implementing IHL and IHRL in conflict-affected countries.34 Naturally, academic literature is also used. With regard to the interpretation of IHL treaties and the determination of customary IHL, recourse is made to the binding judgements of the ICJ, of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and occasionally of the International Criminal Tribunal for Rwanda (ICTR). The jurisprudence of the two ad hoc tribunals is particularly valuable for understanding recent developments in IHL applicable to NIACs.

30 Ibid. 31 Art. 32 VCLT. 32 E.g. Harris (2004), p. 58; and Brownlie (2008), p. 15. 33 See Harris (2004), pp. 55–61 for details; and Brownlie (2008), p. 15. 34 Reports of UN special rapporteurs have been relied on by the ICJ in e.g. the Wall Opinion, para. 133.



introduction9

Furthermore, the analysis relies on the ICRC’s Study on Customary IHL (ICRC Study)35 and evidence of state practice and opinio iuris that is compiled in its volume II. It is noted that the ICRC Study has rightly been criticised for its ‘fairly relaxed view to what is needed to constitute customary law’,36 in particular with regard to the substantial number of rules that it found applicable to NIACs. Further difficulties concerning the ICRC Study are that first the practice collected in the Study is not separated into practice that relates to IACs on the one hand and NIACs on the other; and second that some of the practice on which customary IHL rules are based is in fact practice of human rights bodies applying IHRL.37 For these reasons, some of the findings of the Study have to be scrutinised carefully in the discussion. To facilitate the smooth parallel application of IHL and ESC rights to situations of NIACs, the lex specialis maxim is resorted to in accordance with ICJ jurisprudence.38 Chapter II analyses the function of the lex specialis maxim in structuring the relationship between IHL and IHRL. Before the structure of this study is set out, one last observation has to be made: the discussion in this book is frequently complicated by the fact that both ESC rights and IHL applicable to NIACs are areas of law that have experienced substantial developments in recent years, many of which have not come to an end. With regard to IHL of NIACs this is manifested in the debate on the extent to which the 136 (and arguably even 141) rules identified as customary in the ICRC Study can indeed be considered as having obtained this status; and on whether it can reasonably be expected that the diverse non-state armed groups around the world can abide by all those rules in all their nuances. Concerning ESC rights, this is obvious from the on-going debate about how to overcome the intrinsic difficulties with the notion of the ‘progressive realisation’ of these rights and the related discussion about the extent to which these rights are justiciable. The resulting ambiguities regarding the scope of states’ obligations flowing from the ICESCR as well as from the IHL of NIACs complicates the discussion of their parallel application, including the use of the lex specialis maxim to structure this parallel application.

35 Henckaerts and Doswald-Beck (2005), Volume I: Rules and Volume II: Practice [hereinafter: ICRC Study]. 36 Wilmshurst (2007), p. 403; Bellinger and Haynes (2007), pp. 444–447; see also chapter III, section 2.3. 37 For more details see chapter II, section 2.2 and chapter III, section 2.3. 38 See chapter II, sections 2.2 and 3.3.

10

chapter one 3. Structure

In its attempt to particularise the legal implications of the parallel applicability of IHL and the ICESCR to situations of NIACs this work adopts the following structure. Chapter II gives a brief overview of the development of the relationship between IHL and IHRL, reconstructing the major steps that led on to today’s widely shared acceptance of the simultaneous applicability of both bodies of law in times of armed conflict. It also discusses the function of the lex specialis maxim in regulating the relationship between IHL and IHRL. It argues that this function is relative and highly situationdependent. It is impossible to meaningfully relate the findings of chapter II to the parallel application of IHL and the ICESCR without first looking at the two bodies of law separately. This necessity is particularly clear against the backdrop of more recent considerable developments in IHL of NIACs and the doctrinal debate on ESC rights, as well as the differing aims and general principles that characterise these two bodies of law. Chapter III thus deals with the main characteristics of IHL applicable to NIACs and recent developments in this area of law. It analyses the scope of application of IHL which is confined to ‘armed conflicts not of an international character’, including the question about the continuing relevance of the different thresholds of application for different conventional and customary rules of IHL in NIACs. The modes of the parallel application of IHL and the ICESCR depend on the answer to this question. Chapter III furthermore gives an overview of the overall structure of IHL applicable to NIACs, as well as its purpose, general principles and limits; and touches on the question about the scope of non-state armed groups’ obligations under IHL. Due to the sparse attention so far given to the question of the scope of states’ obligations under the ICESCR in times of armed conflicts, this question is examined in two chapters, chapters IV and V. While the content of ESC rights is always the same, what an individual is entitled to at a particular point in time, including goods, services and facilities made available under different rights, varies in accordance with the circumstances. An argument is made that there are mainly two sets of principles that determine the more exact scope of individual entitlements and corresponding state obligations in different situations. The first is set out in Art. 2(1) ICESCR describing states’ obligations to ‘take steps’ to ‘progressively realise’ ESC rights in accordance with their ‘maximum available resources’.



introduction11

These principles are discussed in chapter IV, including the analytical frameworks that have been developed by the CESCR and scholars to clarify them. The second set comprises the principles embodied in Art. 4 ICESCR, the Covenant’s general limitation clause. These principles, as well as the question of whether ESC rights can be derogated from in times of NIACs even though the ICESCR does not contain a derogation clause, are discussed in chapter V. The minimum core approach to ESC rights occupies an important place in the analysis in both chapters IV and V. Bringing together the findings from the foregoing chapters, chapters VI-VIII analyse the parallel application of relevant IHL rules and the right to health in different situations of NIACs. Chapter VI deals with situations of active combat and explores the possible implications of the parallel application of IHL and the ICESCR for the making of military-target decisions. Concentrating on the example of attacks on so-called ‘dual-use’ objects, the discussion evolves around the question of how the lex specialis maxim, applied in concert with other interpretation methods, may ease substantive tensions between IHL and the right to health. Chapter VII discusses states’ obligations in IHL and those flowing from the right to health that aim to mitigate direct and indirect health consequences of armed conflicts. The right to health and relevant rules of IHL complement each other well in this endeavour, and the lex specialis maxim can facilitate this complementarity to the benefit of individuals affected by armed conflicts. Chapter VIII concentrates on humanitarian assistance. In times of armed conflict, many obligations on states and non-state armed groups relating to socio-economic issues may in fact be implemented by national or international humanitarian organisations. Both IHL and the ICESCR thus contain largely complementary obligations that describe the conditions in which assistance has to be accepted and what measures have to be taken to facilitate its delivery. From the analytic sections, this study draws some tentative conclusions about the relationship between IHL and ICESCR and the legal implications of their parallel application to situations of NIACs in chapter IX.

CHAPTER TWO

THE DEVELOPMENT OF THE RELATIONSHIP BETWEEN IHL AND IHRL AND THE ROLE OF THE LEX SPECIALIS MAXIM 1. Introduction To lay the foundation for the discussion of the relationship between IHL applicable to NIACs and ESC rights, this chapter gives a brief general overview of the development of the relationship between IHL and IHRL. It then examines the function of the lex specialis maxim that is regularly resorted to for solving problems that result from the parallel application of two branches of international law to a particular set of facts. An attempt is made to arrive at an understanding of the function of the lex specialis maxim—applied in concert with other interpretative methods and conflict-resolution techniques—that can be drawn on in later chapters when the legal consequences of the parallel application of IHL of NIACs and states’ obligations flowing from ESC rights are analysed in more detail. 2. A Brief Overview of the Development of the Relationship between IHL and IHRL 2.1. The Early Separation of IHL and IHRL Codified IHL applicable to NIACs and IHRL became part of international law at approximately the same time: in the aftermath of the Second World War. Human rights were mentioned in the UN Charter of 1945,1 and the Universal Declaration of Human Rights (UDHR) was adopted by the UN General Assembly in December 1948. States accepted Art. 3 common to the Geneva Conventions I-IV (GC I-IV) in August 1949, representing the first rudimentary provision in an international treaty applying to ‘conflicts not of an international character’.2 Both common Art. 3 GC I-IV and the UDHR were adopted in response to the atrocities committed during the Second World War; and both widened the regulatory realm of international law into the hitherto ‘sealed off’ domestic domains of states. 1 Art. 1(3) and Art. 55(c) UN Charter. 2 Art. 3 GC I-IV.

14

chapter two

Despite the fact that IHL applicable to NIACs and IHRL became part of international law at a similar point in time, in the first decades of their existence they developed along different lines. Up into the 1980s, the United Nations,3 the ICRC4 and scholars emphasised the separation of these two bodies of law, mainly citing their different historical origin and different purposes as reasons.5 The resolution entitled “Respect for Human Rights in Armed Conflict”6 adopted by the UN International Conference on Human Rights in 1968 in Teheran exemplifies this understanding of the separation of IHL and IHRL. Except from a statement that war amounts to a negation of human rights,7 the resolution dealt exclusively with IHL instruments. This suggests that the phrase ‘human rights in armed conflict’ was considered a synonym for IHL.8 In other words, participants of the Teheran conference and the United Nations were of the opinion that IHRL was entirely replaced by IHL in armed conflict situations. It was also widely held that IHRL could only operate ‘in times of normality, on the basis of harmony and cohesion between government and governed’.9 It was contended that human rights were framed in broad terms and lacked ‘more extensive and more precise provisions for the protection of individuals in armed conflict’.10 In addition, it was put forward that certain human rights ‘have no relevance to armed conflicts’.11 ESC rights as well as certain civil and political rights such as freedom of expression and association were listed among them.12 Another argument for the mutual exclusion of IHL and IHRL was their different material and 3 The UN held that supporting the development and implementation of IHL was irreconcilable with the prohibition of the use of force in Art. 2(4) UN Charter, and feared that such support would undermine states’ confidence in the organisations’ ability to maintain international peace and security; see Schindler (1979), p. 7; Kolb (1998), p. 411; and Gasser (2002), p. 149. 4 The ICRC has usually refrained from invoking IHRL for reasons of its alleged politicisation; see Ben-Naftali and Shany (2003–04), p. 30, (including related footnotes); Sayapin (2009), p. 97; and Suter (1976), p. 409. 5 For details e.g., Draper (1979), p. 149; Eide (1984), p. 677; Ben-Naftali and Shany (2003–04), pp. 27–33; Meron (2000), pp. 242–243; and Stephens (2001), pp. 11–12. 6 Resolution XXIII, adopted by the International Conference on Human Rights, Teheran, 1968. 7 Ibid., preamble, para. 1. 8 Suter (1976), p. 397. He inter alia analyses the traveaux preparatoires of the resolution. See also more recently, Quenivet (2008), p. 5. 9 Draper (1979), p. 147; and the overview given by Greenwood (1999), pp. 277–278. 10 Schindler (1979), p. 9. 11 Schindler (1981–82), pp. 939–940; also Dinstein (1984), pp. 350–351, who found in 1984 that the typical position of most human rights in armed conflict was that they ‘disappear completely in wartime’ (emphasis added). 12 Schindler (1979), p. 11; and Schindler (1981–82), pp. 939–940.



ihl and ihrl and the lex specialis maxim15

personal scope of application: while the vast majority of rules of IHL of IACs are meant to apply extraterritorially, regulating a government’s treatment of different categories of foreign nationals, the extraterritorial applicability of IHRL was regularly questioned. Instead, emphasis was put on IHRL’s applicability to the relation between a government and its own citizens.13 These reasons were given primarily to substantiate the separation of IHL of IACs and IHRL. Yet, IHL applicable to NIACs was widely seen as an inseparable part of IHL of IACs. This resulted in a situation where these reasons equally affected the understanding of the relationship between IHL of NIACs and IHRL, even though some of the mentioned justifications for the separation have always been less valid in the context of NIACs. 2.2. The Move towards a Complementary Application of IHL and IHRL With a few exceptions remaining, the perception of the relationship between IHL and IHRL has changed in recent years. Even though their approaches vary, Judgments and Advisory Opinions of the ICJ, the ECtHR, the IAComHR/IACtHR, the AComHPR; resolutions of the UN Security Council, the General Assembly, the Human Rights Council/former UN Commission on Human Rights; reports of the UN Secretary-General and UN special rapporteurs; documents of UN treaty bodies; more recently adopted human rights and IHL treaties; and most of more recent academic literature on the topic reflect a ‘convergence approach’ to the relationship of IHL and IHRL. This ‘opens the possibility for the cumulative application of both bodies of law’.14 In more recent advisory opinions and judgments the ICJ has confirmed the complementary relationship between IHL and IHRL. In its Wall Opinion and its judgment in the Case Concerning Armed Activities on the Territory of the Congo,15 it found Israel and Uganda had respectively violated both their obligations under IHL and IHRL in the territories they occupied.16 In the 2008 Order on Provisional Measures in the Application of the International Convention on the Elimination of all Forms of Racial

13 E.g. Ben-Naftali and Shany (2003), p. 32; Draper (1979), p. 148; and Schindler (1979), p. 7. 14 Heintze (2004), p. 793. 15 ICJ, Case Concerning Armed Activities on the Territory of the Congo (DRC v Uganda), Judgment, ICJ Reports 2005, [hereinafter: DRC v Uganda Case]. 16 The ICJ’s Wall Opinion and the DRC v Uganda Case are discussed in some more detail infra, section 3.3.

16

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Discrimination (Georgia v Russian Federation)17 the ICJ reinforced this understanding. It refuted Russia’s argument that the facts brought before the Court by Georgia related ‘exclusively to the use of force, humanitarian law and territorial integrity’18 and did therefore not fall into the material and territorial scope of application of IHRL—in this case the Convention on the Elimination of All Forms of Racial Discrimination (CERD). The Court held that ‘the acts alleged by Georgia appear to be capable of contravening rights provided for by CERD, even if certain of these alleged acts might also be covered by other rules of international law, including humanitarian law’.19 It therefore granted Georgia’s request for the indication of provisional measures.20 While never directly referring to IHL, more recent judgements of the ECtHR relating to (possible) armed conflict situations in Southeast Turkey21 and Russia (Chechnya)22 clearly take the existence of an armed conflict into account in their application and interpretation of the relevant Articles of the ECHR. At times, the language in the ECtHR judgments seems to borrow from IHL.23 The IAComHR directly applied the 1977 Additional Protocol II to the Geneva Conventions (AP II) in Abella v

17 ICJ, Application of the International Convention on the Elimination of all Forms of Racial Discrimination (Georgia v Russian Federation), Provisional Measures Order, ICJ Reports 2008, [hereinafter: Georgia v Russia, Provisional Measures Order]. 18 Ibid., para. 111. 19 Ibid., para. 112. 20 However, in its Judgement of 1 April 2011 on the matter the ICJ decided that it had no jurisdiction to rule on the dispute. ICJ, Case Concerning the Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation), Preliminary Objections, Judgment, ICJ Reports 2011. 21 E.g. ECtHR, Ergi v Turkey, Appl. No. 23818/94, Judgment, 28 July 1998, para. 79; Ahmet Özkan and Others v Turkey, Appl. No. 21689/93, Judgment, 6 April 2004, paras. 305–306; and Erdogan and Others v Turkey, Appl. No. 19807/92, Judgment, 25 April 2006, paras. 74–87. 22 E.g. ECtHR, Isayeva, Yusupova and Bazayeva v Russia, Appl. Nos. 57947/00; 57948/00; 57949/00, Judgment, 24 February 2005, paras. 174–200; Isayeva v Russia, Appl. No. 57950/00, Judgment, 24 February 2005 (2005), paras. 179–201; Khatsiyeva v Russia, Appl. No. 5108/02, Judgment, 17 January 2008, paras. 129–140; and Mezhidov v Russia, Appl. No. 67326/01, Judgment, 25 September 2008. 23 E.g. Ergi v Turkey, para. 79, where the ECtHR found that states have to ‘take all feasible precautions in the choice of means and methods of a security operation mounted against an opposing group with a view to avoiding and, in any event, to minimising, incidental loss of civilian life’. Similarly, see Özkan v Turkey, para. 297; Isayeva v Russia, paras. 176 and 189; Isayeva, Yusupova and Bazayeva v Russia, para. 177. In these judgements, the Court also refers to the ‘civilian population’, ‘civilian vehicles’, ‘civilian life’ and ‘civilian casualties’ which suggests that it recognises the distinction between civilians and armed groups that characterises IHL. For an overview of the ECtHR’s approach see also Reidy (1998); Heintze (2002); Tomuschat (2010), pp. 19–20 and Doswald-Beck (2011), pp. 115–117.



ihl and ihrl and the lex specialis maxim17

Argentina together with the ACHR.24 The AComHPR has also applied the ACHPR to a NIAC-situation in Chad.25 Resolutions of various UN bodies regularly call upon parties to armed conflicts to adhere to their obligations flowing from both IHL and IHRL.26 To name but a few examples, in its 2005 resolution 1591 the UN Security Council urged all Sudanese parties to ‘take all necessary action to prevent further violations of human rights and international humanitarian law and put an end to impunity’.27 Equally, the (former) UN Commission on Human Rights clearly voiced its opinion on the complementary relationship between IHL and IHRL in its resolution 2005/63 entitled “Protection of Human Rights of Civilians in Armed Conflict”. It acknowledged that ‘human rights law and international humanitarian law are complementary and mutually reinforcing’,28 and called upon all parties to armed conflicts to comply with their obligations under IHL and with their human rights obligations.29 Special procedures established by the UN Human Rights Council also regularly comment on violations of IHRL and IHL when the situation they examine requires them to do so.30 For example, already in 1991, in its resolution 1991/67 the then UN Commission on 24 Inter alia, IAComHR, Juan Carlos Abella v Argentina, Case 11.137, OAE/ser.L/V/II.98. doc.6.rev, 18 November 1997, para. 161; Coard v USA, Case 10.951, OAE/ser.L/V/II.106. doc.3.rev, 29 September 1999, paras. 38–44; and IACtHR, Bámaca-Velásquez v Guatemala, Judgment, Ser.C, No. 70, 27 November 2000, paras. 207–209; Mapiripán Massacre v Colombia, Judgment, Ser.C. No. 134, 15 September 2005, para. 172; and Ituango Massacres v Colombia, Judgment, Ser.C. No. 148, 1 July 2006, para. 209. For further analysis see Zegveld (1998); Heintze (2004), pp. 802–805; and Doswald-Beck (2011), pp. 111–115. 25 AComHPR, Communication 74/92, Commission Nationale des Droits de l’Homme et des Libertes v Chad (1995), para. 22; see also Communication 229/99, Democratic Republic of Congo v Burundi, Rwanda and Uganda (2003). For an analysis of the AComHPR’s approach see Doswald-Beck (2011), p. 109; and Alston, Morgan-Foster and Abresch (2008), p. 196. 26 For an overview see Doswald-Beck (2011), pp. 6–7. 27 UN Security Council resolution, S/RES/1591 (29 March 2005), para. 5 (preamble); similarly see e.g. S/RES/1923 (25 May 2010), paras. 2–3; and S/RES/1019 (9 November 1995), paras. 1 and 6. To name but two resolutions of the UN General Assembly: A/RES/62/6 (13 December 2007), paras. 20 and 22; and A/RES/50/193 (11 March 1996), paras. 2–4, 6 and 11–13. 28 UN Commission on Human Rights, Res 2005/63 (20 April 2005), para. 6 (preamble). 29 Ibid., para. 2; see also among many other resolutions by the UN Human Rights Council, e.g. A/HRC/RES/13/7 (14 April 2010), para. 8 (preamble); and Res S-8/1 (1 December 2008), paras. 1, 6 and 9(c). 30 See e.g. Report of the Independent Expert on the Situation of Human Rights in the Sudan, A/HRC/14/41, 26 May 2010, paras. 82(d) and 84(a); Report of four UN Special Rapporteurs on Their Mission to Lebanon/Israel, A/HRC/2/7, 2 October 2006, para. 16; Report of the UN Special Rapporteur on the Right to Food on His Mission to the Occupied Palestinian Territories, E/CN.4/2004/10/Add.2, 31 October 2003, paras. 22–25; and Report of the UN Special Rapporteur on the Right to Food, E/CN.4/2002/58, 10 January 2002, paras. 80–97.

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Human Rights appointed a Special Rapporteur on the Situation of Human Rights in Occupied Kuwait with the mandate to report on violations of IHRL and IHL committed by the invading and occupying forces of Iraq.31 In his report, the Special Rapporteur considered violations of IHL and IHRL, including violations of ESC rights. The UN Secretary-General also supports a complementary application of IHL and IHRL which is clear particularly from his regular reports on the protection of civilians in armed conflict.32 UN treaty bodies clearly advocate a cumulative application of IHL and IHRL. Most evidently, this is expressed by the HRCttee with regard to the interplay between the ICCPR and IHL: While in respect of certain Covenant rights, more specific rules of international humanitarian law maybe especially relevant for the interpretation of Covenant rights, both spheres of law are complementary, not mutually exclusive.33

On the level of IHRL treaty law, the convergence between IHL and IHRL became most apparent with the adoption of the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict in 2000 (OP-CRC-AC). The 1989 Convention on the Rights of the Child (CRC) itself already reinforced states’ obligations to adhere to the rules of IHL that relate to the protection of children in armed conflicts.34 It repeats Art. 77(2) AP I in its Arts. 38(2)–(4). The protection of 31 The UN Commission on Human Rights’ Resolution 1991/67, 6 March 1991; and the Report on the Situation of Human Rights in Kuwait under Iraqi Occupation, prepared by Walter Kälin, Special Rapporteur of the UN Commission on Human Rights, E/CN.4/1992/26, 16 January 1992, are reproduced in Kälin (1994). 32 See the Reports of the UN Secretary-General on the Protection of Civilians in Armed Conflict, S/2009/277, 29 May 2009, inter alia paras. 5, 22, 37(c), 38, 39, 41, 61, 65(a), 66(b), 67(c), 68 and 69; see also his Report S/2007/243, 28 October 2007; Report S/2005/740, 28 November 2005; and Report S/2004/431, 28 May 2004. 33 HRCttee, General Comment 31 (2004), para. 11 and General Comment 29 (2001), para. 3. See also HRCttee, Concluding Observations—Democratic Republic of the Congo, CCPR/C/COD/3 (2006), para. 13; Colombia, CCPR/CO/80/COL (2004), paras. 4 and 16; UK, CCPR/C/GBR/CO/6 (2008), para. 14; USA, CCPR/C/USA/CO/3/Rev1 (2006), paras. 6 and 12; and Israel, CCPR/C/ISR/CO/3 (2010), para. 5. See also similar views expressed by the CESCR, the CRCCttee, CEDAWCttee and CERDCttee, in e.g.: CESCR, Concluding Observations—Israel, E/C.12/1/Add.69 (2001), paras. 15 and 31; Colombia, E/C.12/COL/CO/5 (2010), paras. 7, 16 and 31; Democratic Republic of the Congo, E/C.12/COD/CO/4 (2009), para. 6; Sri Lanka, E/C.12/LKA/CO/2–4 (2010), para. 28; CRCCttee, Concluding Observations— Democratic Republic of the Congo, CRC/C/15/Add.153 (2001), paras. 67–71; Pakistan, CRC/C/PAK/CO/3–4 (2009), paras. 86–87; CEDAWCttee, Concluding Observations— Israel, CEDAW/C/ISR/CO/3 (2005), paras. 23–24; and Sri Lanka, A/57/38 (Part I) (2002), paras. 273, 298 and 299; CERDCttee, Concluding Observations—USA, CERD/C/USA/CO/6 (2008), para. 24; and Israel, CERD/C/304/Add.45 (1998), paras. 10–12. 34 Art. 38(1) CRC.



ihl and ihrl and the lex specialis maxim19

children in armed conflict was, however, regarded as unsatisfactory in Art. 38(2) and (3) CRC and Art. 77(2) AP I, especially because these two instruments permit the recruitment and direct participation of children in armed conflicts from the age of fifteen. This goes against the spirit of the CRC the overarching aim of which is to regulate all matters that concern children in accordance with the ‘best interests of the child’.35 The OP-CRC-AC therefore obliges states parties to ‘take all feasible measures to ensure that members of their armed forces who have not attained the age of 18 years do not take a direct part in hostilities’.36 The level of protection given to children in the OP-CRC-AC is thereby higher than in IHL. The OP-CRC-AC is the first IHRL instrument that relates specifically to armed conflict situations, and shows that IHL and IHRL clearly overlap. Other more recent treaties relating to the use of certain conventional weapons can be seen as instruments that directly combine IHL and IHRL. Above all, this can be observed in the Convention on Cluster Munitions (CCM) that entered into force on 1 August 2010. The preamble highlights the determination of the parties to the CCM ‘to ensure the full realisation of the rights of all cluster munition victims’.37 At the same time, it stipulates that the provisions of the CCM are based ‘on the principles and rules of international humanitarian law’.38 As will be discussed in other chapters of this book,39 IHL and IHRL pervade the CCM harmoniously, raising the protection of cluster munition victims to a new level. Even if not as directly as in the CCM, similar tendencies of complementarity between IHL and IHRL can be observed in the 2003 Protocol on Explosive Remnants of War40 and the 1997 Convention on the Prohibition of Anti-Personnel Mines (Ottawa Convention).41 Questions remain, however, about the scope of non-state armed groups’ obligations under these instruments.42 These instruments show that more recent IHL treaties applicable to NIACs take account of the parallel applicability of IHRL.43 In more general terms, it has been observed by Meron that the recent expansion of treaty 35 Arts. 3(1), 9(1) and (3), 18, 20(1) and 21 CRC. 36 Art. 1 OP-CRC-AC. 37 Preamble, para. 6 CCM. 38 Preamble, para. 20 CCM (emphasis added); Art. 5(1) CCM also refers to IHL and IHRL in one paragraph. 39 See chapter VII, section 4.2.2 and chapter VI, section 5.3.1 (n. 150). 40 Art. 8(2), Protocol V to the Conventional Weapons Convention (CCW). 41 E.g. paras. 3 and 11 of the preamble and Arts. 6(3) and (7)(e) Ottawa Convention. 42 See Sivakumaran (2011c), p. 249–51. 43 The CCM, Protocol V of the CCW and the Ottawa Convention also apply to all types of armed conflict.

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and customary rules applicable to NIACs (and IACs) and their subsequent interpretation has been influenced by the growing importance of IHRL in international law, and the related heavier weight put on the protection of the individual.44 For example, Art. 75 AP I and Arts. 4, 5 and 6 AP II contain fundamental guarantees that not only apply to persons on the side of or under control of an enemy, but also between a state and all its citizens.45 The 2005 ICRC Study which finds that 136 (and arguably 141) of the 161 rules it identified as customary applied to NIACs as well as to IACs, also relies on IHRL in its examination of ‘state practice’.46 The Study ‘does not purport … to provide an assessment of customary human rights law’ but holds that ‘human rights law has been included in order to support, strengthen and clarify analogous principles of IHL’.47 This claim has to be questioned at times because the state practice upon which some customary IHL rules are based is primarily that of human rights bodies applying human rights law.48 However, the fact that IHRL is taken into account in the ICRC Study shows that IHL and IHRL can no longer be treated as two disconnected branches of international law that develop independently of one another. From this brief overview, it is clear that the simultaneous applicability and complementary relationship between IHL and IHRL is widely recognised today, by human rights bodies and bodies that traditionally concentrated on the implementation of IHL and scholars alike.49 In their 2012 44 Meron (2000). 45 Ibid.; in his analysis Meron shows convincingly how the individual-rights perspective influenced the evolution of IHL, especially with regard to reciprocity and reprisals, as well as with regard to the interpretation of IHL rules related to the repatriation of POWs and the definition of ‘protected persons’ in GC IV. 46 The ‘state practice’ identified in the Study most often takes the form of official declarations rather than actual behaviour. The Study has been criticised for this, e.g. by Sassòli and Olsen (2008), p. 602. 47 ICRC Study, introduction, Vol I, p. xxxi. 48 See e.g. state practice cited to support rules 98 (prohibition of enforced disappearances), 99 (prohibition arbitrary deprivation of liberty) and 105 (respect for family life), in particular with regard to their application to NIACs. ICRC Study, Vol II, Part II, paras. 2437– 2450 (on rule 98), paras. 2643–2657 (on rule 99), and paras. 3972–3978 (on rule 105); see also Sassòli and Olsen (2008), p. 602; and Hampson (2007), p. 58, who does not regard this as problematic. 49 Heintze (2004), p. 793; Bothe (2006), pp. 66–68; Greenwood (2008b), pp. 74–75; Tomuschat (2010); Olsen (2009), pp. 443–449; Ben-Naftali and Shany (2003–04), p. 24; Gasser (2002), p. 162; Alston, Morgan-Foster and Abresch (2008), pp. 191–197; contributions to the special issue on the parallel applicability of IHL and IHRL, (2007) 40 IsrLR 306, in particular by Kretzmer, Giladi and Shany (2007), p. 306 and Lubell (2007), pp. 649–651; and the issue on IHL and IHRL of the (2008) 90 IRRC 485, especially the contributions by Droege (2008), pp. 502–503; Vite (2008), p. 630; Campanelli (2008), p. 657; Sassòli and Olsen (2008), p. 600; and Hampson (2008), pp. 550–551.



ihl and ihrl and the lex specialis maxim21

fourth periodic report to the UN HRCttee, even the United States signalled a departure from their position on the non-applicability of IHRL to armed conflict situations.50 Together with Israel and a few scholars, the United States had on occasion denied the applicability of IHRL to conflict situations, in particular its extraterritorial applicability.51 As will be discussed further in the chapters to come, the complementarity of IHL and IHRL goes beyond ‘a natural convergence of humanitarian principle underlying the two bodies of law’.52 It includes an overlap of both branches in terms of scope of protection, and ‘aims at providing the greatest effective protection of the human being through the cumulative application of both bodies of law’53 in the unquestionably difficult circumstances of armed conflicts. At the same time, there is no complete merger of IHL and IHRL as the title of a 2008 publication “International Humanitarian Law and Human Rights Law: Towards a New Merger in International Law” on the topic might suggest.54 A complete merger is indeed neither desirable nor practicable.55 It risks lowering the standard of protection in different situations,56 and is particularly impractical for situations of NIACs, since the question about non-state armed groups’ human rights obligations is more often than not answered in the negative.57 IHL and IHRL are related but remain ultimately distinct bodies of law, which allows for their flexible complementary application as required by the particularities of different armed conflict situations. However, as mentioned in chapter I, the exact shape and detailed legal consequences of such a flexible complementary applicability of IHRL and IHL to situations of armed conflict remain unclear.58 For example, while applying IHL and IHRL simultaneously, the ICJ in the Wall Opinion and the DRC v Uganda Case did not spell out how exactly IHL modified the 50 HRCttee, Fourth Periodic Report—USA, CCPR/C/USA/4 (2012), paras. 506–509. 51 HRCttee, Concluding Observations—Israel, CCPR/C/ISR/CO/3 (2010), para. 5; CESCR, Concluding Observations—Israel, E/C.12/ISR/CO/3 (2011), para. 8; HRCttee, Concluding Observations—USA, CCPR/C/USA/CO/3/Rev.1 (2006), para. 10; and Feinstein (2005); and Dennis (2005), pp. 122–129. 52 Stephens (2001), p. 2. 53 Heintze (2004), p. 794. 54 Quenivet and Arnold (2008). However, the present author has the impression that the title of the book does not match its general findings. In their conclusion (p. 591) the editors hold that ‘IHL and IHRL are two distinct, though complementary, branches of law’. 55 Among others, this is observed by Droege (2008), p. 521. 56 E.g. Provost (2002), pp. 349–350. This fear is also one reason why the Turku Declaration on Minimum Humanitarian Standards (1990) was never formally adopted by the UN, an intergovernmental forum. For details, see Scheinin (2005b), para. 12. 57 See chapter I, part 1; and Olsen (2009), p. 454. 58 See chapter I, part 1, including relevant footnotes.

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application of IHRL. In the DRC v Uganda Case, it is not clear whether the Court’s finding that Uganda had violated Art. 6(1) ICCPR and Art. 4(1) ACHPR (right to life) depended on the violations it found of AP I.59 3. The Function of the lex specialis Maxim Regulating the Relationship between IHL and IHRL Tensions arising from the simultaneous applicability of IHL and IHRL should be solved with reference to the lex specialis maxim. In concert with other interpretation methods, this principle can also be used to support a close fit between single rules of IHL and IHRL where there is no direct tension between the two. This is often the case in regard to situations to which IHL and ESC rights apply. The lex specialis maxim can thereby help to further excavate the ‘unexploited potential for complementarity’ between IHL and IHRL. The possible function of the lex specialis maxim structuring the relationship between IHL and IHRL is discussed in the following as a first step in the analysis of the detailed legal consequences of the parallel application of IHL and the ICESCR to NIACs. 3.1. The Rationale of the lex specialis Maxim In the absence of a world legislator, international lawyers have always faced the task of ensuring the systemic cohesion of international law through applying techniques of legal reasoning to new tensions and conflicts between different rules and principles that originate from the various co-existing international legislative procedures.60 The growing awareness about the more recent expansion, functional specialisation and associated fragmentation of international law has initiated a renewed discussion about these techniques,61 among which is the maxim lex specialis derogat generali. It proposes that the more specific rule prevails over the 59 ICJ, DRC v Uganda Case, para. 219, where the Court found that acts of the UPDF (Ugandan Army) on the territory of the Democratic Republic of the Congo violated Arts. 25, 27 and 28 Hague IV (on conduct of hostilities), Arts. 48, 51, 52, 57, 58 of AP I (also on conduct of hostilities/protection of civilians) and Art. 6(1) of the ICCPR. Similarly, see the violations of IHL and IHRL found in the Wall Opinion, paras. 132–137. 60 E.g. Jenks who in 1953 called on international lawyers to ‘formulate principles for resolving such conflict [of law-making treaties] when it arises’, Jenks (1953), p. 405. 61 See literature on this topic, e.g. Pauwelyn (2003); Simma and Pulkowski (2006); Hafner (2004); Borgen (2005); and most importantly ILC, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law— Report of the Study Group of the International Law Commission, finalised by Martti Koskenniemi, A/CN.4/L.682 (2006) [hereinafter: ILC Study].



ihl and ihrl and the lex specialis maxim23

more general standard when both regulate the same matter. Even if one assumes a limited degree of hierarchisation of international norms, the notion of ius cogens does not provide a solution for the vast majority of cases of tensions or conflicts between different legal rules. Therefore principles like the lex specialis maxim take up an important position in international legal reasoning to build systemic relationships between different rules and principles in international law.62 The Report of the International Law Commission’s Study Group on the Fragmentation of International Law (ILC Study) describes the lex specialis maxim as a ‘widely accepted maxim of legal interpretation and technique for the resolution of normative conflicts’.63 The rationale behind the lex specials rule was formulated accurately by early writers such as Grotius: ‘Among agreements which are equal …, that should be given preference which is most specific and approaches most nearly the subject in hand; for special provisions are ordinarily more effective than those that are general’.64 These two reasons for giving preference to the special law have been confirmed by later writers and jurisprudence of international courts: special rules are seen as being more to the point and as tending to regulate the matter more effectively,65 and are therefore of greater practical relevance.66 In addition, it is said that special rules are a clearer reflection of states’ intention which, among other things, has a bearing on any interpretation of international norms.67 The lex specialis maxim is applied to ease tensions between rules originating from similar or different sources of international law, for instance between two treaty rules, two rules of customary law, or between a rule of treaty law and a rule of customary law.68 62 As mentioned by Simma and Pulkowski (2006), p. 495, international law is generally seen as systemic, but it does not constitute a comprehensive and organised legal order. 63 ILC Study, para. 56. It should be noted, however, that the application of interpretative and conflict-resolution techniques like the lex specialis maxim has a limited capacity to ensure the systemic coherence of international law. I.e. while the lex specialis maxim can contribute easing substantive tensions between norms, it cannot solve every genuine conflict arising between various rules and branches of international law; see also ILC Study, paras. 42 and 484–485. 64 Grotius (1625), Book II, Chapter XVI, Section XXIX. 65 In certain cases, the lex specialis maxim might be supported by the doctrine of effectiveness, which is mentioned by Jennings and Watts among the supplementary means of interpretation. They point out, however, that ‘effectiveness is always relative to the object and purpose’ of the rule that is interpreted. Jennings and Watts (1992), p. 1281. 66 ILC Study, para. 60 and related footnotes. 67 Pauwelyn (2003), p. 388. 68 ILC Study, paras. 66, 85, 224, 324 and 414; Akehurst (1974–75), p. 275; and Villiger (1997), pp. 206–207.

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chapter two 3.2. The Two (Presumed) Functions of the lex specialis Maxim

The ILC Study points to two different functions of the lex specialis maxim. The first understands and reads the special rule ‘within the confines or against the background of the general standard, typically as an elaboration, updating or technical specification of the latter’.69 In this case, the lex specialis maxim is not used to solve a clear normative conflict, but is taken ‘to involve the simultaneous application of the special and the general standard’.70 Any tension is eased through interpretation, and the lex specialis maxim is used as a ‘principle of more specific interpretation’.71 In the second function, the special rule is seen as an exception, overruling or setting-aside the general rule, so that the special rule should be applied instead of the general rule. In this function, the lex specialis rule is used as a conflict-solution technique when two norms provide incompatible direction on how to regulate the same set of facts.72 In this understanding, the lex specialis maxim is only applied if ‘harmonious interpretation’ is impossible, and a general standard has to be overruled by a special one in order to ease tension.73 While these two functions of the lex specialis maxim can be distilled from jurisprudence and academic writings reviewed by the ILC’s Study Group, the Study notes that in practice it is difficult or even impossible to distinguish whether a special ‘rule “applies” a standard, “modifies” it or “derogates from” it. An “application” or “modification” always involves also a degree of “derogation” and “setting aside.”’74 The ILC Study therefore concludes that ‘there is no need (indeed no possibility) to decide whether the lex specialis is used as an “interpretative maxim” or a “conflict resolution technique”, whether it merely “applies” some more general standard or derogates from it.’75 The Study includes both functions of the lex specialis maxim in its further analysis;76 and both functions are relied on in this work.

69 ILC Study, para. 57. 70 Ibid., para. 88. 71 Droege (2008), p. 524. 72 ILC Study, para. 58. 73 Ibid., para. 88 and related footnotes. 74 Ibid., para. 91. 75 Ibid., para. 92. 76 The wide notion the Study adopts of the term ‘conflict’ is to be understood in this context, as it relates to the Study’s intent to accommodate both of these functions of the lex specialis rule. The Study defines ‘conflict’ as a ‘situation where two rules or principles suggest different ways of dealing with a problem’ (paras. 21–26).



ihl and ihrl and the lex specialis maxim25

This finding will have implications for the understanding of the function of the lex specialis maxim in structuring the relationship between IHL and ESC rights. Even if there is no outright conflict between IHL rules and the right to health or other ESC rights, the lex specialis maxim might still be useful as a tool to facilitate a harmonious parallel application of IHL and ESC rights. It might, for example, be that in certain situations a particular rule of IHL and elements of states’ obligations flowing from the right to health set different priorities without directly contradicting each other. In such a case, the lex specialis maxim might nonetheless give guidance on which rule should be emphasised in a particular situation. This is also in accordance with the contextuality of the function of the lex specialis maxim that will be discussed in the next section, and in concert with the systemic objectives of the law (see 3.4 below).77 3.3. Relationality and Contextuality in the Application of the lex specialis Maxim and the Omnipresence of General Law The ILC Study points out three further characteristics of the lex specialis maxim that are important for understanding its function in structuring the relationship between IHL and IHRL: the relationality and contextuality in its application, as well as the ‘omnipresence of general law’. All three characteristics refer to the fact that the function of the lex specialis maxim is relative and highly situation-dependent. It is often impossible to distinguish between a ‘general’ and a ‘special’ rule, and even if the more special rule is determined, it is unclear how far this ‘speciality’ actually goes. As the ILC Study puts it: ‘every general rule is particular, too, in the sense that it deals with some particular substance, that is, includes a certain fact-description as a general condition of its application’.78 The Study gives the example of the Ottawa Convention that, on the one hand, sets out the ‘general’ law on landmines. On the other hand, it is ‘also a “special” aspect of the general rules of humanitarian law’,79 and even IHRL, describing states’ obligations to protect the right to life and other human rights of landmine victims. The Study concludes: ‘Generality and speciality are thus relational. A rule is never ‘general’ in the abstract but in relation to some other rule.’80 From this, it follows that 77 See also the examples given in the ILC Study that describe the application of the lex specialis maxim in cases where there is no outright conflict between two applicable norms, but where one rule is nonetheless applied primarily as the lex specialis (paras. 93, 99–102). 78 ILC Study, para. 111. 79 Ibid. 80 ILC Study, para. 112.

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‘an abstract determination of an entire area of law as being more specific towards another area of law is not, in effect, realistic.’81 For the relationship between IHL and IHRL this, above all, shows that a ‘traditional’ and rather one-sided view has to be rejected: that IHL must always be given preference over IHRL in armed conflict situations because it has been developed for the ‘specific’ and ‘exceptional’ circumstances of armed conflict.82 The report on an ICRC roundtable discussion on “International Humanitarian Law and Other Legal Regimes” in 2003 suggests that this ‘traditional’ opinion still prevailed among participants, as ‘the great majority of the participants simply recalled that IHL represented a special law in as much as it has been specifically framed to apply in a period of armed conflict’.83 The ICJ’s statement in its Nuclear Weapons Opinion84 was also interpreted in this ‘traditional’ way.85 Moreover, the “Manual on International Law Applicable to Air and Missile Warfare”86 adopted more recently and endorsed by a group of experts holds that ‘most members of the group … believe that it [human rights law] has only minimal bearing on air and missile warfare in international armed conflicts because the law of armed conflict is lex specialis’.87 IHRL was thus not taken into account when the rules of this Manual were drafted, even though it claims to constitute an ‘up-to-date restatement of existing international law applicable to air and missile warfare’.88 Yet, in line with the findings of part 2.2 of this chapter, the great majority of states as well as most scholars have discarded this understanding today. It has been recognised that IHL does not always contain the more 81 Lindroos (2005), p. 44. 82 See e.g. Wolfram (2000), Vol I, p. 937; and older, Jenks (1953), p. 446. This ‘traditional’ view is still held by the US, discussed e.g. by Alston, Morgan-Foster and Abresch (2008), p. 192. 83 ICRC/International Institute of Humanitarian Law (2003), p. 8; see also supra, section 2.1. 84 Referring to the ICCPR, the ICJ advised that the protection offered by it ‘does not cease in times of war’ and therefore ‘in principle, the right not to arbitrarily be deprived of one’s life [Art. 6(1) ICCPR] applies also in hostilities’. It went on stating that ‘the test what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities’ (Nuclear Weapons Opinion, para. 25). 85 See Dennis (2005), pp. 139 and 141; and Watkin (2004), p. 22. 86 HPCR (2010), Manual on International Law Applicable to Air and Missile Warfare, [hereinafter: HPCR Manual]. 87 HPCR (2010), Commentary on the HPCR Manual on International Law Applicable to Air and Missile Warfare, p. 6 (Section D(d)) [hereinafter: HPCR Commentary]. This proposition will be critically examined in chapter VI. 88 HPCR Manual, foreword, p. iii.



ihl and ihrl and the lex specialis maxim27

detailed rules, and that therefore the application of the lex specials maxim to the relationship of IHL and IHRL cannot mean that IHL overrules IHRL across-the-board. While IHL may seem to be more special and of greater practical relevance at first sight because it contains a number of fairly detailed obligations explicitly made for conflict situations,89 IHRL contains a great amount of detail as well. This is clear especially when sources are taken account of that exist outside the treaty wording, such as general comments adopted by the relevant UN treaty bodies and jurisprudence of regional human rights courts. This is true for civil and political rights90 as well as for the rights set out in the ICESCR.91 Moreover, limitation, and to some extent, derogation clauses make IHRL a flexible body of law that can be adapted to the specificities of a particular situation, including NIACs.92 In addition, the function of the lex specialis maxim would be different in NIACs and IACs because of the fact that IHL applicable to IACs contains many more details than IHL applicable to NIACs, at least as far as treaty law is concerned. The relationality that determines the function of the lex specialis maxim is highly related to the mentioned contextuality that also characterises this function. Whether one rule can be described as more special than another in relation to a specific problem to which both apply, also depends on the characteristics of this problem, i.e. the concrete facts and context.93 Sassòli and Olsen elaborate on this finding in a convincing manner that is helpful for understanding the function of the lex specialis maxim in regulating the simultaneous application of IHL and IHRL: When the legal consequences of two norms regulating the same situation are mutually exclusive, speciality in the sense of logic implies that the norm that applies to certain facts must give way to the norm that applies to these same facts as well as to an additional fact present in that situation. Between two applicable rules, the one which has the larger ‘common contact surface area’ with the situation applies [is given preference]. It is the norm with the more precise or narrower material and/or personal scope of application that prevails. Precision requires that the norm explicitly addressing a problem prevails over the one that addresses it implicitly, the one providing the 89 In particular IHL treaties applicable to IACs. 90 See e.g. Sassòli and Olsen (2008), pp. 613–616 and 621–626; and the discussion recorded in the Report on the Right to Life in Armed Conflict, University Centre for International Humanitarian Law (2005). 91 See the discussion in e.g. chapter VII, section 4.3; chapter VI, section 4.2.3; chapter VIII, section 3.2; and the findings by Lubell (2006), p. 751; and Vite (2008), p. 651. 92 Discussed in detail in chapter V. 93 ILC Study, para. 119 and paras. 87 and 106–107.

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chapter two advantage of detail prevails over the other’s generality, and the more restrictive norm over the one covering the entire problem but in a less exacting manner.94

As will be shown in the chapters to come, it is sometimes IHL and sometimes IHRL that more explicitly addresses the particularities of a specific problem/context. If the more special rule has been identified in accordance with this formal standard and is hence given preference, the general rule will nonetheless remain in the background and ‘provide interpretative direction’95 to the special rule. This is the case even if the special rule is applied as an exception from the general rule, almost replacing the general rule. This is supported by the ICJ’s statement in the Wall Opinion that the protection offered by human rights ‘does not cease in case of armed conflict, save through the effect of the provisions for derogation of the kind to be found in Article 4 of the International Covenant on Civil and Political Rights’;96 and by the Nuclear Weapons Opinion, which constantly emphasises the importance of the principle of humanity in its interpretation of IHL.97 This principle is also seen as the common denominator of both branches of law, IHL and IHRL.98 The ILC Study thus observes that any setting aside of ‘general’ law through the application of the lex specialis maxim is relative;99 and that the ‘role of lex specialis cannot be dissociated from assessments about the nature and purposes of the general law it proposes to modify, replace, update or deviate from’.100 It also emphasises the ‘omnipresence of general law’101 in the application of the lex specialis maxim in 94 Sassòli and Olsen (2008), pp. 604 (footnotes omitted, emphasis in original); see also Droege (2008), p. 524: ‘In determining which rule is the more specialised one, the most important indicators are the precision and clarity of the rule and its adaptation to the particular circumstances of the case’; and Greenwood (2008b), p. 75. 95 ILC Study, para. 102; see also Sassòli and Olsen (2008), p. 605. 96 ICJ, Wall Opinion, para. 106 [emphasis added]; see also Nuclear Weapons Opinion, para. 25. 97 E.g. ICJ, Nuclear Weapons Opinion, para. 95. 98 The ICJ’s emphasis on the principle of humanity in IHL underlines the common purpose of IHL and IHRL to guarantee the well-being of every individual as a rationale for their co-application, as it is put forward by Stephens (2001), p. 15; and Gardam (2001), p. 364; supported also by Heintze (2004), p. 797; and Reimann (1984), p. 773, who both emphasis that the Martens Clause (Hague IV, Preamble; Art. 63 GC I; Art. 62 GC II; Art. 142 GC III; Art. 158, GC IV; Art. 1(2) AP I and Art. 72 AP I) explicitly allows IHL to be supplemented by IHRL. See also the Dissenting Opinion of Judge Weeramantry to the ICJ Nuclear Weapons Opinion, ICJ Reports 1996, pp. 476–482. 99 ILC Study, para. 103; Simma and Pulkowski (2006), pp. 488–490. 100 ILC Study, para. 120. 101 Ibid., section 2(e), paras. 119–122.



ihl and ihrl and the lex specialis maxim29

this context. This finding is also connected to the ILC Study’s suggestion that, in general, an interpretation should be adopted that avoids conflicts between a special and a general rule and that instead a harmonisation between two rules should be sought.102 3.4. The Systemic Objectives of the Law and the Relation of the lex specialis Maxim to Other Interpretative Methods Considering its relationality and contextuality, applying the lex specialis maxim to the relationship of IHL and IHRL could enhance the responsiveness of IHL and IHRL to particular situations. Questions would nonetheless remain over how to determine what fact-condition makes a case ‘special’ and what rule is consequently applied preferentially.103 Moreover, it is sometimes not clear which of the two rules, according to the formal standard described above, is the one with the more precise material and/ or personal scope of application.104 In that case, ‘a less formal—and also less objective—factor for determining which of the two rules applies [or is given more emphasis] is the conformity of the solution to the systemic objectives of the law’.105 In this understanding, the lex specialis maxim would help to show the position of two rules within a purposive legal system, and thereby give a further justification of why, in a particular situation, one rule is given preference over the other.106 As Sassòli and Olsen highlight, it is questionable whether this solution is truly lex specialis.107 But it helpfully links the application of the lex specialis maxim to the object and purpose both of the two rules that are to be applied in parallel, as well as of the two branches of international law which these rules are part of. This can result in giving IHL priority over IHRL, even if the latter is more precise under the formal standard of the lex specialis maxim. This is for instance the case with regard to the status determination of prisoners of war (POWs) in IACs as envisaged in Art. 5 GC III and Art. 45 AP I which are less detailed if compared to the standards in IHRL prohibiting arbitrary arrest or detention. IHRL includes procedural obligations that require that an arrested person is promptly informed 102 Ibid., para. 37; this is in line with the presumption against normative conflict in international law, as noted by Pauwelyn (2003), pp. 240–244; and Jennings and Watts (1992), p. 1275. 103 ILC Study, para. 107. 104 As observed by Jenks (1953), p. 450. 105 Sassòli and Olsen (2008), p. 604; and ILC Study, para. 107. 106 ILC Study, para. 36. 107 Sassòli and Olsen (2008), p. 604.

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of the reasons for the arrest, and proceedings before a court through which the lawfulness of detention can be determined without delay.108 In this case, IHL would be given preference over IHRL, taking into account the object and purpose of IHL applicable to IACs to prevent captured combatants from re-joining their armed forces.109 The reference to the systemic objectives of the law moreover shows that the lex specialis maxim is always applied in concert with other rules of treaty interpretation set out in Art. 31 VCLT,110 as well as with other interpretative maxims/conflict-resolution techniques such as the maxim lex posterior derogat priori (when two rules apply to the same matter, the later in time prevails) and lex superior derogat inferiori (when two rules apply to the same matter the one higher in hierarchy prevails).111 In the context of IHL and IHRL and other instruments with a humanitarian purpose (for instance the Refugee and the Genocide Conventions) it is important to note that special emphasis is often put on teleological interpretation methods,112 as this ensures that these treaties can unfold their protective functions towards individuals effectively.113 For example, in its 1951 Advisory Opinion on Reservations to the Genocide Convention the ICJ made extensive use of teleological interpretation methods.114 Moreover, taking account of subsequent developments in relation to the treaty— such as subsequent practice and subsequent agreements that relate to the treaty115—has a firm standing in the interpretation of IHRL as it allows for a ‘dynamic’ or ‘evolutive’ interpretation of the law in the context of 108 Art. 9 ICCPR, Art. 5 ECHR, Art. 7 ACHR and Art. 6 ACHPR. 109 Sassòli and Olsen (2008), p. 627, also elaborate on a ‘solution’ for interment in NIACs compatible with the systemic purposes of both IHL and IHRL. 110 ILC Study, para. 65. In textbooks, the lex specialis maxim is usually discussed as one factor among others in treaty interpretation, e.g. in Aust (2000), p. 201; and Jennings and Watts (1992), p. 1280. 111 Here the discussion is limited to the function and scope of the lex specialis maxim. While IHL is commonly referred to as the lex specialis in relation to IHRL, the lex superior rule is of little relevance for easing tensions between IHL and IHRL, since both branches of law contain similar rules of ius cogens. The application of the lex posterior principle to the IHL-IHRL relationship seems to be problematic in the most cases, since it is usually not the intention of states to set aside an IHL-rule by the adoption of an IHRL-rule later in time and vice versa (the OP-CRC-AC and its relation to Art. 77 AP I being an obvious exception). 112 See also the observation in chapter I, part 2. 113 This is convincingly argued by Lauterpacht and Bethlehem (2003), p. 104, in their interpretation of Art. 33 (non-refoulment) of the 1951 Refugee Convention; and Craven (1995), p. 3. 114 ICJ, Reservations to the Convention on the Prevention of and Punishment of the Crime of Genocide, Advisory Opinion, ICJ Reports 1951, p. 23; see also ILC Study, para. 130 and related footnotes. 115 Art. 31(3)(a) and (b) VCLT.



ihl and ihrl and the lex specialis maxim31

‘present day conditions’.116 Many aspects of the content of human rights norms have become clear only after the relevant treaties have been adopted, especially through the (interpretative) work of UN treaty bodies and regional human rights courts/commissions. The emphasis on teleological interpretation methods and the weight put on subsequent developments in the interpretation of IHRL and— though possibly to a lesser extent—IHL, must be acknowledged in the application of the lex specialis maxim to the relationship between IHL and IHRL. It will highlight the function of IHRL to protect the (humanitarian) interests of individuals. When applied in parallel to IHL, this is likely to result in a shift in the outcome of balancing the principle of military necessity against the principle of humanity which is inherent in almost all IHL norms to the advantage of the latter.117 It will also allow IHRL to broaden states’ obligations under IHL, especially in more ‘stable’ situations of armed conflict. In the words of Judge Weeramantry, it will allow human rights to ‘flood through into every corner of humanitarian law’.118 Such a finding will be supported by the above-discussed relativity of the function of the lex specialis maxim, as well as the connected ‘omnipresence of general law’. They ensure that even if IHL is given preference through the application of the lex specialis maxim, IHRL and its object and purpose influence the interpretation of the (more specific) IHL from the background.119 The preference given to interpretation methods that consider the systemic objectives of the law and influence the function of the lex specialis maxim is strengthened by Art. 31(3)(c) VCLT. The ILC Study views this Article as a further expression of what it calls the principle of ‘systemic integration’120 that is to guide any interpretation of international law. Art. 31(3) VCLT provides that in the interpretation of treaties ‘there shall 116 See e.g. ECtHR, Tyrer v UK, Appl. No. 5856/72, Judgment, 25 April 1978, para. 31. The approach of the ECtHR is outlined by Harris et al (2009), pp. 5–8. See also the similar approach adopted by the ECSR in e.g. Complaint 1/1998, International Commission of Jurists v Portugal, Decision on the Merits, 9 September 1999, para. 32; and Lauterpacht and Bethlehem (2003), referring to relevant jurisprudence of the ICJ, e.g. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, para. 53; and the Separate Opinion of Vice-President Weeramantry in the Gabčikovo-Nagymaros Project (Hungary v Slovakia), Judgment, ICJ Reports 1997, p. 115. 117 Further see chapter III, part 4 and chapter VI, particularly section 5.3.2. 118 Dissenting Opinion by Judge Weeramantry on the ICJ’s Nuclear Weapons Opinion, ICJ Reports 1996, p. 491. 119 As noted supra, section 3.3. 120 ILC Study, paras. 410–423.

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be taken into account, together with the context: … (c) all relevant rules of international law applicable in the relations between the parties’. From this wording, it becomes clear that the principle of systemic integration may require consideration of the normative context in a wider sense in treaty interpretation than is required through the recourse to teleological interpretation methods, and possibly at another level. This may sometimes have further implications for the function of the lex specialis maxim. The principle of systemic integration requires that legal interpretation takes account of ‘something like a general, public interest’121 which lies beyond the objectives of a specific treaty or customary rule that is being interpreted, and which may be found in other ‘relevant rules of international law applicable in the relations between the parties’. These ‘relevant rules’ include other treaties, customary rules and general principles of international law that might, at first sight, not be directly relevant to a specific situation. McLachlan observes that the principle of systemic integration seeks to ‘contribute to the broader task of finding an appropriate accommodation between the conflicting values and interests in international society, which may be said to be the fundamental task of international law today’.122 Like the lex specialis maxim in most cases, Art. 31(3)(c) VCLT seeks the harmonisation of rules of international law through interpretation.123 Conflicting interests and values can, for example, appear in the clash between the principle of state immunity and liability for international crimes124 or, to put it in more general terms, between community interests and inter-state interests that occur throughout contemporary international law.125 With regard to the relationship between IHL and IHRL, the principle of systemic integration may relate the question of complementarity between IHL and IHRL to other conflicting values and interests in interna­ tional  society. For example, it might be helpful in an interpretation of 121 Ibid., para. 480. 122 McLachlan (2005), p. 319. 123 Apart from this aim to facilitate the harmonisation of rules of international law, the more exact scope of the functions of Art. 31(3)(c) VCLT in the process of legal interpretation is not entirely clear; see ILC Study, Section F(4); and McLachlan (2005), pp. 309–319. 124 McLachlan (2005), p. 318; see also the cases by the ECtHR cited in the ILC Study referring to Art. 31(3)(c) VCLT: Al-Adsani v UK, Appl. No. 35763/97, Judgment (Grand Chamber), 21 November 2001, paras. 55–56; Fogarty v UK, Appl. No. 37112/97, Judgment (Grand Chamber), 21 November 2001, paras. 35–36; McElhinney v Ireland, Appl. No. 31253/96, Judgment (Grand Chamber), 21 November 2001, para. 36–37; and ICJ, Jurisdictional Immunities of the State, Germany v Italy, Judgment, 3 February 2012. 125 Gwolland-Debbas (2004), p. 362.



ihl and ihrl and the lex specialis maxim33

concurrently applicable IHL and IHRL rules to relate the discussion to the current ‘juxtaposition of community interests alongside inter-state interests’126 in international law. This juxtaposition has influenced the fabric of international law, as it was aptly formulated by the ICTY in the Tadić case: A state-sovereignty-oriented approach has been gradually supplanted by a human-being-oriented approach. Gradually the maxim of Roman Law huminum causa omne jus constitutum est (all law is created for the benefit of human beings) has gained a firm foothold in the international community as well.127

Through Art. 31(3)(c) VCLT, such growing weight of a ‘human-beingoriented approach’ in international law as an expression of the values and interests in the international community can be related to questions of the relationship between IHL and IHRL, increasing the weight that is put on the principle of humanity. Yet, conflicting inter-state interests will also weigh on questions of complementarity between IHL and IHRL. It has to be recognised that in times of war states’ military interests (which reflect state interests) will not allow IHRL to influence IHL to an extent that the principle of military necessity becomes substantially undermined,128 or that a human rights nexus is established between combatants in IACs.129 In other words, neither the application of the lex specialis maxim in the understanding set out above nor of Art. 31(3)(c) VCLT to the relationship between IHL and IHRL will result in a law of NIACs that respects IHRL at a ‘peace-time level’.130 In conclusion on Art. 31(3)(c) VCLT, it should be noted that most of the time formal reference to this Article is not needed in the parallel application of IHL and IHRL—it will suffice to take into account the object and purpose of both bodies of law in the application of the lex specialis maxim to ensure their just simultaneous application.131 126 Ibid. 127 ICTY, Prosecutor v Tadić, Appeals Chamber Decision on Defence Motion for Interlocutory Appeal on Jurisdiction, IT-49-I-AR72 (2 October 1995), para. 97 [hereinafter: Tadić Jurisdiction]. See also Judge Weeramantry who finds in his Dissenting Opinion to the ICJ’s Nuclear Weapons Opinion (p. 490) that ‘the vast structure of internationally accepted human rights norms and standards has become part of the common global consciousness today in a manner unknown before World War II’ and that therefore human rights principles ‘tend to be invoked immediately and automatically whenever a question arises of humanitarian standard’. 128 Matheson (1997), p. 423; see also the discussion in chapter VI, in particular part 3 and section 4.1.2. 129 Stephens (2001), p. 13. 130 In this context, see also the observations by Verdirame (2008), p. 693. 131 ILC Study, para. 421.

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chapter two 3.5. Critique of the lex specialis Maxim

Because of the high context-dependence of the function of the lex specialis maxim described by its relationality, contextuality and the ‘omnipresence of general law’, as well as by the fact that it is never applied as the only technique of legal reasoning, critics have observed that too much discretion is left to those who are to apply the two norms of IHL and IHRL to a particular set of facts.132 One observer holds that: the broadness of this principle allows manipulation of the law, a manoeuvring of the law that supports diametrically opposed arguments from supporters that are both for and against the compartmentalisation of international humanitarian law and international human rights law.133

While this might indeed be the case, it has to be remembered that the lex specialis principle as an interpretative maxim or conflict-resolution technique is exposed to the uncertainties that characterise the methods used to interpret international law in general. There are various methods of legal interpretation, but there are no definite rules for when to apply which principle, and what weight to put on each of them.134 In this context, it should be observed that even the ILC Study finds that because of the context-dependence of its function, ‘the lex specialis maxim cannot be meaningfully codified’.135 Yet, it is believed that as a rule of legal logic, the lex specialis maxim in the understanding set out above can assist subjects of international law in fulfilling their duty to apply international rules in a ‘reasonable and equitable manner’ (good faith).136 The following chapters will inter alia put this to the test in regard to the parallel application of the right to health and IHL of NIACs.137 It remains questionable whether alternative models to the lex specialis maxim as suggested by some will solve the uncertainties that characterise the function of this maxim in structuring 132 Lindroos (2005), p. 42; Milanovic (2010), pp. 473–476. 133 Prud’homme (2007), p. 383; similarly, Milanovic (2010), pp. 473–476. 134 This is the reason why Jennings and Watts (1992), p. 1274, find that interpretation of international rules ‘is to some extent a matter of art as well as of science’; see also Simma and Pulkowski (2006), pp. 488–489; Koskenniemi (1997), pp. 575–576; Koskenniemi (re-issue 2005), pp. 333–345; and Jenks (1953), p. 402. 135 ILC Study, para. 119. 136 Schwarzenberger and Brown (1976), pp. 24 and 133. They see the whole branch of law on treaty interpretation including the lex specialis maxim as part of what they call ius aequum, i.e. the requirement to apply each treaty in good faith and the spirit of reasonableness. 137 See in particular chapter VI, part 3; and chapter VII, part 2.



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the relationship between IHL and IHRL,138 as many of the uncertainties are inherent in many methods used to interpret international law.139 4. Concluding Remarks The review of recently adopted treaties and of international ‘jurisprudence’ suggests that the parallel applicability of IHL and IHRL to armed conflict situations is widely accepted today. The detailed legal consequences and exact modes of the actual parallel application of IHL and IHRL are, however, not well defined—particularly not the simultaneous application of IHL of NIACs and ESC rights. Much of the potential for complementarity of the two bodies of law remains thus unexploited, leaving people affected by armed conflicts with a lesser degree of protection. As a first step to expose some of this potential, the chapter discussed the functions of the lex specialis maxim in general international law and in structuring the relationship between IHL and IHRL. It can be applied as a conflict-resolution technique, establishing a preferential order between two rules that regulate the same matter differently. It also functions as a tool for promoting the harmonious parallel application of two rules that do not directly contradict each other, but where one rule can rather be seen as an elaboration or up-date of another rule. Often, no clear distinction can be drawn between these ‘ordering’ and ‘harmonising’ functions, including in reference to the relationship between IHL and IHRL. Both functions of the maxim are nonetheless relied on in this work. The more special rule that is to be given preference over the more general rule through the application of the lex specialis maxim is usually the more precise one with a narrower material and/or personal scope of application, addressing a particular problem in a more exacting manner. Either IHL or IHRL can be identified as the lex specialis, which points to the relationality and contextuality of the function of this maxim: it depends entirely on the character of the two rules that are to be applied simulta­ neously as well as on the particular problem to and context in which they 138 Prud’homme (2007), p. 387 e.g. suggests an alternative model to the lex specialis maxim: a ‘theory of harmonisation’. Without going into detail, the present author did not, however, detect any significant difference between the ‘theory of harmonisation’ and the application of the lex specialis maxim as set out in this chapter, as both aim to promote the harmonious parallel application of IHL and IHRL. 139 See, however, chapter XI, section 4.2 for some initial discussion of how the subjective element in the application of the lex specialis maxim could be limited.

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are applied, which of the two rules is identified as the more special one. In each case, it must be examined individually whether IHL or IHRL is the more special rule, and is therefore to be given (relative) preference over the other. Moreover, when the ‘special’ rule has been identified, the more general rule remains in the background, still influencing the interpretation of the special rule. This also shows that the application of the lex specialis maxim can never be a ‘schematic exercise’.140 Despite taking account of relationality, contextuality and the ‘omnipresence of general law’ in the application of the lex specialis maxim, in some cases it might be impossible to determine which rule, IHL or IHRL, is the more special one. On the one hand, the existence of the special situation ‘armed conflict’ may suggest that IHL contains the more specific rules; on the other hand, IHRL may contain more detailed regulations, and be more specific. Other methods of interpretation will step in here to achieve a reasonable result: the conformity of the solution with the systemic objectives of the law, i.e. the object and purpose of both bodies of law, has to be ensured as far as possible. In this context, special emphasis on teleological interpretation methods and on consideration of subsequent practice and developments in the interpretation of treaties with a humanitarian purpose will influence the function of the lex specialis maxim in the regulation of the relationship between IHL and IHRL. The ‘principle of systemic integration’ in Art. 31(3)(c) VCLT can further link the question of complementarity of IHL and IHRL, structured through the lex specialis maxim, to other conflicting values and interests in international society. This may have an influence on the balancing of the principles of humanity and military necessity and relate it to the greater balancing exercise that international law has to fulfil more generally: the balancing of state interests with the protection of the individual or the interests of the international society. Because of the high context-dependence of the function of the lex specialis maxim described by its relationality, contextualtiy and the ‘omnipresence of general law’, as well as by the fact that it is never applied as the only technique of legal reasoning, the application of this maxim leaves broad discretion to those who apply it. Yet, it is suggested that, as a rule of legal logic, the lex specialis maxim can assist the application of two rules to a particular situation in good faith.

140 Simma and Pulkowski (2006), p. 490; similarly Aust (2000), p. 200; and ILC Study, paras. 58, 119 and 410.



ihl and ihrl and the lex specialis maxim37

Overall, in this understanding, the lex specialis maxim applied alongside other interpretative methods promises to aid the flexible complementary application of IHL and IHRL to armed conflict situations. It will thereby help giving maximum possible protection to individuals in the exceptional circumstances of an on-going armed conflict. The high dependence of the function of the lex specialis maxim on the nature and character of the rules that are to be applied in parallel, as well as on the specific circumstances to which they are applied, are the main reason for discussing IHL applicable to NIACs and ESC rights in separate chapters in the following. Only after the scope of states’ obligations flowing from IHL applicable to NIACs as well as from the ICESCR have been examined in some detail, can the findings of this chapter be applied (and tested) to facilitate the complementary application of IHL and the right to health to different situations of NIACs.

CHAPTER THREE

INTERNATIONAL HUMANITARIAN LAW APPLICABLE TO NON-INTERNATIONAL ARMED CONFLICTS 1. Introduction This chapter examines the main characteristics of IHL applicable to NIACs as well as recent developments concerning this branch of law that are important for discussing the simultaneous application of IHL and the right to health in chapters VI–VIII. There are three main issues to be explored. First, the historical development of IHL applicable to NIACs is briefly examined. Despite the historical reluctance of states to accept the regulation of rebellions, beginning in the 1990s unprecedented developments have taken place in customary IHL. These developments display a trend to eliminate the distinction between IHL rules applicable to IACs and NIACs. While recognising the positive effect that this expansion of IHL of NIACs has for victims of these types of conflicts, more recently there have also been calls to pause and re-think the predominant approach taken to develop IHL of NIACs. Suggestions have been made to take better account of the fact that at least one party to a NIAC is a non-state actor when further consolidating and developing IHL of NIACs. Second, the scope of application of IHL of NIACs is explored. Unlike IHRL, IHL applies to situations of armed conflict only. Different conventional and customary IHL rules have different thresholds of application. Hence, the degree of overlap between IHL of NIACs and ESC rights may vary by situation. While the ICRC Study and the ICC Statute indicate a declining relevance of the different thresholds of application, the practical reasons behind these thresholds should not be ignored so that IHL of NIACs can be applied by states and non-state armed groups alike. Third, the discussion turns to the purpose, principles and limits of IHL. This lays a further essential foundation for exploring how the purpose, principles and limits of IHL influence the parallel application of IHL and IHRL; and sheds more light on the extent to which IHL principles actually apply to NIACs, as some of them are not explicitly included in treaties applicable to them.

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2. A Brief Introduction to the Development of IHL Applicable to Non-International Armed Conflict 2.1. The Historical Regulation of Rebellion Although it has been accepted since antiquity that some restraints should be put on the conduct of warfare,1 these restraints applied only to international wars (armed conflicts2), i.e. to wars between two sovereign entities (states). There are two related reasons for states’ reluctance to regulate rebellion and other NIACs through international law. First, throughout history state authorities have been concerned that such regulation amounts to legitimating armed struggles of non-state armed groups and encourages individuals to take up arms against authorities. States feared that this would unduly limit their right to fight criminals, in particular their right to prosecute and punish individuals involved in a rebellion under domestic law, and undermine states’ territorial integrity. Second, the application of IHL to NIACs has always been seen as an unjustified intervention in a sovereign authority’s internal matters.3 Based on these concerns in the 19th and early 20th century the laws and customs of war were only applied to a limited number of fully-fledged civil wars through the doctrine of the recognition of belligerency, when the rebels fighting a government had become very strong, were controlling parts of their parent state’s territory, and were exercising governmental functions.4 All early IHL codifications, such as the 1899 and 1907 Hague Conventions5 and the 1929 Geneva Conventions6 only applied to IACs.

1 Green (2008), p. 20. Chapter 2 gives an overview of the history and sources of the laws of war, discussing warfare in ancient Greece, Rome and in the Middle Ages; see also Bartels (2009), pp. 42–57. 2 It was only after the Second World War that the term ‘war’ was replaced with the term ‘armed conflict’ to ensure that IHL is applied to all violent clashes between states or states and non-state armed groups, regardless of whether or not war had officially been declared. 3 See e.g. Moir (2002), pp. 3 (and related footnotes) and 21; Green (2008), pp. 343–344; and Fleck (2008), p. 612. 4 For a more detailed elaboration of the doctrine of recognition of belligerency, see Moir (2002), pp. 4–18; and Moir (1998). 5 See e.g. the 1899 Hague Convention (II) with Respect to the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land (29 July 1899) which was replaced by Hague Convention IV in 1907; see also, Green (2008), pp. 41–42 listing additional early IHL treaties. 6 1929 Geneva Conventions on the Protection of the Wounded and Sick and on Prisoners of War.



ihl applicable to non-international armed conflicts41

Even though the reluctance to regulate NIACs undeniably dominated the debate and is still revealed in the applicable treaty law today, not all thinkers and military strategists rejected the regulation of rebellions or other civil wars through international law. Authors who developed the theory of natural law in the 17th and 18th centuries, as well as philosophers who promoted social contract theory were more open to accept restrictions on the conduct of internal conflicts.7 Although it might initially seem counterintuitive, military strategists had also supported at least some regulation of rebellion. Throughout history, military writings recognised that keeping the support of the general population during counterinsurgency operations was the key to their success.8 Military strategists understood the importance of fighting insurgents with self-imposed limitations as a means both to avoid that the population would turn against the army, and to avoid undermining the morale of soldiers who usually had family among the general population. They realised that causing distress among civilians through fighting rebels unrestrainedly would undermine the population’s loyalty to the government, as loyalty is partly based on the states’ ability to provide protection.9 The ‘tactical and strategic importance’ of observing rules restraining warfare in NIACs is also recognised in contemporary sources, ‘as it will be decisive for conducting convincing operations, winning hearts and minds of the people and establishing stable peace’.10 The implications of this recognition for the parallel application of IHRL to situations of NIACs are discussed in more detail in chapter VI.11 Driven by humanitarian considerations, the ICRC also promoted the application of the laws and customs of war to internal armed conflicts even before the First World War, and urged parties to conflicts to let it engage in similar humanitarian work in NIACs as it performed in inter-state conflicts.12 Due to the dominant international law doctrine of non-intervention this attempt was only partly successful, and it was not 7 See Perna (2004), pp. 9–13 for details. 8 Ibid., pp. 23–27. She discusses inter alia Sun Tzu, “The Art of War”, which recommended that one should ‘build a golden bridge to the fleeing enemy’ (Sun Tzu lived in the 6th century bc). See also Green (2007), pp. 49–83, discussing a range of early writers’ approaches to the regulation of warfare. 9 Perna (2004), pp. 24 and 62–65; and College of Europe/ICRC Colloquium (2003), pp. 170–171. 10 Fleck (2008), pp. 620 and 625. 11 See chapter VI, section 4.2.4. 12 Moir (2002), pp. 21–22; and Bartels (2009), p. 58.

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until 1949 that states agreed to adopt a very limited but essential number of treaty rules regulating ‘armed conflicts not of an international character’ in Art. 3 GC I-IV. This and other more recent instruments regulating NIACs shall be briefly introduced in the following section. 2.2. Common Article 3 and Additional Protocol II Both the drafting history and the limited content of common Art. 3 GC I-IV and AP II reflect states’ reluctance to accept the regulation of NIACs through international law. Regarding common Art. 3 GC I-IV, the original draft of this Article by the ICRC envisaged the application of all provisions of all four Geneva Conventions ‘in all cases of armed conflict not of an international character which may occur in the territory of one or more of the High Contracting Parties’.13 However, states’ strong opposition resulted in the adoption of the very limited number of rules of common Art. 3 GC I-IV offering only basic protection to ‘persons taking no active part in hostilities, including members of armed forces who have laid down their arms and those placed hors de combat’.14 While accepting the ICRC’s or any other independent humanitarian body’s right to offer their services to the parties to the conflict,15 states ruled out any possibility that rebels would gain a protected belligerent status under common Art. 3 GC I-IV.16 Its limited substance makes common Art. 3 applicable to any armed conflict, regardless of its intensity, and it has been recognised as an emanation of ‘elementary considerations of humanity’ constituting ‘a minimum yardstick’.17 Its customary status has been confirmed several times.18 Regarding AP II, states’ reluctance to regulate NIACs through IHL is manifested in its high threshold of application as well as in its limited content.19 This threshold was raised considerably during the drafting 13 See Moir (2002), pp. 22–29 for a more extensive analysis of the drafting history of common Art. 3 GC I-IV; also Bond (1974), pp. 52–58; Draper (1983), pp. 263–268; and Bartels (2009), pp. 57–64. 14 Art. 3 GC I-IV. 15 Art. 3(2) GC I-IV. 16 Art. 3(4) GC I-IV. 17 ICJ, Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v US), Judgment, ICJ Reports 1986, para. 218 [hereinafter: Nicaragua Judgment]; for a discussion of the threshold of application of common Art. 3 GC I-IV see infra, section 3.1. 18 E.g. ICTY, Tadić Jurisdiction, paras. 89 and 98; and ICTR, Prosecutor v Akayesu, Judgement, ICTR-96–4 (2 September 1998), para. 608. 19 See e.g. Bothe, Partsch and Solf (1982), pp. 406–703; Moir (2002), pp. 91–96; and Draper (1983), pp. 273–276 for detailed accounts of the drafting process of AP II.



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process with the result that AP II as a treaty only applies to high-intensity NIACs which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organised armed groups which, under a responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement the Protocol.20

This did not, however, silence the opponents of the draft Protocol, the content of which was initially modelled on the content of AP I, in the 1977 plenary session of the negotiations. To avoid the complete failure of AP II, the draft was radically cut and simplified at the last moment, and subsequently adopted by the delegations without much discussion. Based on states’ fear that their armed forces could become legitimate targets in NIACs, the part about means and methods of warfare was completely removed. Only a few aspects relating to the protection of the civilian population remained.21 Rules on the activities of impartial humanitarian organisations were also dropped due to states’ concern that they could be abused for interventions into their domestic affairs.22 One additional reason given in the drafting process for the limited content of AP II and its high threshold of application was less driven by states’ concerns for preserving their sovereignty: there were doubts as to whether relatively weaker non-state armed groups would have the capacity to apply the wide range of suggested rules, in particular when they do not control territory and have limited authority over their members. It was feared that ‘overburdening’ non-state armed groups with rules that they are unable to implement would result in non-compliance with these rules. This argument has some merit and has rightly been recalled recently.23 2.3. More Recent Developments in Treaty and Customary IHL The revolutionary developments in treaty and customary IHL of NIACs, which started in the 1990s, have made a number of AP-II-provi­sions24 applicable to NIACs of less intensity than required by Art. 1 AP II—particularly those provisions which are criminalised in Art. 8(2)(c) and (e) of the ICC 20 Art. 1 AP II. 21 Now Arts. 13–18 AP II. 22 For details see Moir (2002), pp. 89–95; and Bothe, Partsch and Solf (1982), p. 606. See also the discussion in chapter VIII, part 2. 23 Sivakumaran (2011c), pp. 253–254. 24 ICTY, Tadić Jurisdiction, para. 117.

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Statute. In more general terms, these developments reveal a declining relevance of the distinction between the rules applicable to IACs and NIACs. Concerning treaty law, several older IHL instruments originally adopted for IACs only have been amended and made applicable to NIACs. For example, at the second review conference of the Conventional Weapons Convention (CCW)25 in 2001 state parties to the CCW adopted an amendment to Art. 1 CCW broadening its scope of application to NIACs.26 Similar amendments were adopted in 1996 to the Protocol on Mines, Booby-Traps and Other Devices.27 Other recent treaties, such as the 1995 Blinding Weapons Protocol,28 the Ottawa Convention,29 the 1999 Second Hague Protocol for the Protection of Cultural Property30 and the 2008 CCM31 covered IACs and NIACs from the outset. The expansion of customary IHL applicable to NIACs was driven by the jurisprudence of the two ad hoc international criminal tribunals,32 and culminated in the adoption of the ICRC Study on Customary IHL.33 In its introduction, the Study holds that it provides evidence that many rules of customary international law apply in both international and non-international armed conflicts and shows the extent to which State practice has gone beyond existing treaty law and expanded the rules applicable to non-international armed conflicts. In particular, the gaps in the regulation of the conduct of hostilities in Additional Protocol II have largely been filled through state practice, which has led to the creation of rules parallel to those in Additional Protocol I, but applicable as customary law to non-international armed conflicts.34

25 CCW of 10 October 1980. 26 Amendment of Art. 1 CCW of 21 December 2001. 27 Art. 1 Protocol II to the CCW as amended on 3 May 1996. 28 Protocol IV to the CCW of 13 October 1995. 29 Art. 1 Ottawa Convention obliges each state party to ‘never under any circumstances’ use, produce, acquire or stockpile anti-personnel mines. 30 Art. 22(1) of the 1999 Second Hague Protocol for the Protection of Cultural Property. 31 Art. 1 CCM holds that each state party undertakes ‘never under any circumstances’ to use, develop, produce, acquire, stockpile retain or transfer to anyone, directly or indirectly, cluster munitions. 32 The ICTY and ICTR agree that at least ‘the core’ of AP II is part of customary international law; see Tadić (Jurisdiction), paras. 98 and 126 where the ICTY found that the ‘general essence’ of the rules applicable in IACs have become applicable to NIACs as a matter of custom. This may go beyond common Art. 3 GC I-IV and AP II. And see ICTR, Prosecutor v Akayesu, para. 608. 33 The Study finds that 136 (and arguably even 141) of the 161 rules of customary IHL apply to IACs as well as to NIACs. 34 ICRC Study, Vol I, p. xxix.



ihl applicable to non-international armed conflicts45

While this finding has been evaluated critically35 and will be analysed for a limited number of rules relevant for the present work,36 it shows that there are customary IHL rules beyond common Art. 3 GC I–IV and even beyond AP II applicable to NIACs. In general, it is regrettable that the state practice cited in volume II of the Study as evidence for the existence of customary rules is not separated in practice relating to IACs on the one hand and NIACs on the other. Despite the developments in customary IHL of NIACs, there is no doubt that the distinction between IACs and NIACs remains relevant,37 a fact that has been recalled more recently in academic literature. As mentioned, in treaty law there is still a significant number of rules applicable only to IACs—a gap which is not completely bridged by developments in customary law.38 The ICC Statute draws a distinction between war crimes committed in IACs and NIACs in its Art. 8;39 and even the ICRC Study does not abolish the distinction altogether. Against the background of a history of states’ political reluctance to regulate internal armed conflict in the same way as IACs discussed above, it seems unrealistic to expect that the distinction between rules applicable to IACs and NIACs will disappear altogether. States will continue to object to giving rebels full combatant/ POW-status, as this might imply that organised non-state armed groups have a right to fight governmental security forces, and undermine states’ right to try insurgents for taking up arms against the authorities. Moreover, it might be unrealistic to expect that non-state armed groups are able and willing40 to abide by the full range of treaty IHL applicable to IACs, in 35 E.g. Cryer (2006), on NIACs especially pp. 253–254; particularly critical of the very broad view of the customary law applicable to prohibited weapons in NIACs, see Turns (2006). See also Bothe (2005), pp. 174–176; Bellinger and Haynes (2007), p. 448; and many of the contributions in Wilmshurst and Breau (eds.) (2007). The conclusion to the latter edited volume summarises that it ‘appear[s] to be the general view of the contributors to this book that the Study has on occasion adopted a fairly relaxed view to what is needed to constitute customary law’ (p. 403), in particular concerning the customary rules it finds applicable to NIACs (p. 407). 36 See infra, sections 4.4 and 4.5; chapter VI, parts 4 and 5; chapter VII, parts 4 and 5; and chapter VIII, parts 2 and 3. 37 But see Byron (2001); Crawford (2007); MacLaren and Schwendimann (2005), p. 1230; and Willmott (2004), all arguing for a complete elimination of the distinction between IACs and NIACs in IHL. 38 See supra n. 35; and e.g. Fleck (2008), p. 627; Wilmshurst (2007), p. 407; and Bartels (2009), p. 41. 39 Art. 8(2)(a) and (b) ICC Statute lists war crimes that can be committed in IACs; Art. 8(2)(c) and (e) in NIACs. 40 The willingness of non-state armed groups to comply with IHL is also undermined by the fact that non-state armed groups have not so far been involved in drafting IHL

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particular when the internal armed conflict is not very intense, and the non-state armed group displays a limited degree of organisation. It seems that the ICRC Study, the drafters of recent treaties,41 and those who call for abolishing the IHL distinction between IACs and NIACs have to some extent neglected the fact that non-state armed groups are bound by customary rules applicable to NIACs. Renewed attention has been drawn to this in attempts to devise methods for a better adaptation of IHL of NIACs to the realities of non-state armed groups and their capabilities to implement the law.42 In addition, and importantly for this study, it should always be remembered that IHRL applies alongside IHL in NIACs. Filling the gaps in IHL of NIACs through applying IHL of IACs by analogy (as custom or by implication) is therefore not the only option: notably in low-intensity NIACs it might be more reasonable to rely on IHRL with all its flexibilities to accommodate extraordinary situations, at least as far as the state party to the conflict is concerned.43 This option is sometimes overlooked by those who argue for a complete unification of IHL applicable to IACs and NIACs for humanitarian or other reasons. Non-state armed groups for their part are theoretically bound by the domestic law of the state on whose territories they fight, in addition to IHL. 3. The Scope of Application of IHL of Non-International Armed Conflicts 3.1. Determining the Existence of a Non-International Armed Conflict and Applicable Rules The above shows that in any given situation it is still necessary to determine first whether an armed conflict exists, and second whether it is of an international or non-international character in order to establish whether IHL applies at all and if so, to decide what rules of IHL apply. To begin, we must recall that there is no definition of what constitutes an ‘armed conflict’ in any IHL treaty. The ICRC Study does not contain a applicable to NIACs, nor is their ‘practice’ usually considered to contribute to the development of customary IHL. On the latter, see ICRC Study, Vol I, p. xxxvi. For suggestions to change this, see Sassòli (2010), pp. 20–26. 41 As mentioned supra, ns. 25–31; and observations by Sivakumaran (2011c), p. 255. 42 E.g. suggestions by Sassòli (2010) and Sivakumaran (2011c). See also the Debate in (2011) 93 IRRC 425 by Sassòli and Shany. 43 Sassòli (2010), pp. 17–19.



ihl applicable to non-international armed conflicts47

customary definition of an armed conflict either, supposedly because there was no definition that was regarded to constitute customary IHL with sufficient certainty, backed by state practice and opinio iuris.44 It is relatively unproblematic to determine the existence of an IAC since it involves the recourse to armed force between two or more ‘High Contracting Parties’45 to the GCs, i.e. states.46 There is no doubt that an IAC means inter-state conflict:47 at least two entities with international legal personality are involved.48 It is more complicated to determine the existence of NIACs,49 in particular of conflicts that do not meet the high threshold of Art. 1 AP II,50 but to which apply common Art. 3 GC I-IV and at least51 those customary IHL norms the violation of which is criminalised in Art. 8(2)(c) and (e) ICC Statute.52 The difficulty is to distinguish situations of low-level internal violence such as (short-lived and unorganised) riots, tensions, insurrections, disturbances or acts of banditry from this type of NIACs. States are usually reluctant to acknowledge that they are involved in an armed conflict with a non-state armed group in their territory because of the above-discussed political concerns. Yet, two main factual criteria describing this type of NIAC—the existence of an organised armed group and a minimum level of intensity of hostilities53—developed over time. Based on analyses of 44 Pejic (2007), p. 78; this omission has rightly been described as ‘disappointing’ by Wilmshurst (2007), p. 408; Cryer (2006), p. 262; and MacLaren and Schwendimann (2005), pp. 1227–1228. 45 Art. 2 GC I-IV. 46 See Pictet, Commentary to the Geneva Conventions of 12 August 1949 (1952–59), p. 32 [hereinafter: ICRC Commentary (GC I-VI)]; ICRC Opinion Paper (March 2008); and ICTY, Tadić Jurisdiction, para. 70. 47 Pejic (2007), p. 81; and Fleck (2008), p. 608. 48 It is more problematic to determine whether a NIAC has been internationalised through the involvement of one or more states, supporting a non-state armed group. 49 See e.g. Moir (2002), p. 34; and Pejic (2007), p. 79. 50 Art. 1 AP II gives some indication as to the type of high-intensity armed conflict to which AP II applies. Art. 1 AP II was cited supra, section 2.2; for a discussion of the threshold of application of AP II see also Vite (2009), pp. 79–80. 51 Some rules set out in AP II, going beyond the rules criminalised in the ICC Statute, may also apply to this type of NIAC—as customary law; see e.g. infra, sections 4.4 and 4.5. 52 All crimes codified in the ICC Statute are based on customary international law as it was stressed by states during the Rome Conference; see e.g. Sivakumaran (2009), p. 377; and La Haye (2008), p. 140. 53 As set out in ICTY jurisprudence, e.g. ICTY, Prosecutor v Tadić, Judgement of the Trial Chamber, IT-94–1-T (7 May 1997), para. 562; Prosecutor v Limaj, Trial Chamber Judgement, IT-03-66-T (30 Nov 2005), para. 84 [hereinafter: Limaj]; and Prosecutor v Boškoski and Tarčulovski, Trial Chamber Judgement, IT-04-82-T (10 July 2008), para. 175 [hereinafter: Boškoski].

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common Art. 3 GC I-IV, the drafting history of Art. 8(2)(c)-(f) ICC Statute, and a teleological interpretation of this Article, an evolving consensus towards accepting these two criteria as the distinguishing features of NIACs can be observed.54 Both criteria have been determined in greater detail by the ICTY55 and the IAComHR.56 They have been analysed extensively elsewhere;57 this work supports and makes use of this evolving consensus. As mentioned, there is little doubt that these criteria describe the threshold of application of common Art. 3 GC I-IV as well as of those customary rules the violation of which has been criminalised in Art. 8(2)(c) and (e) ICC Statute. The ICRC Study seems to imply that this threshold is also valid for the application of further customary norms. This can be inferred from the fact that the ICRC Study does not make the (traditional) distinction between different types of NIACs (under common Art. 3 and AP II) with respect to the customary rules it concludes to be applicable to NIACs. This is based on the finding that, in general, states do not make this distinction in practice,58 which has also been abolished in recent treaties.59 However, it is questionable whether the distinction between Art. 3-type and AP-II-type NIACs in IHL treaty law has lost all its relevance through 54 For analyses of Art. 8(2)(d) and (f) ICC Statute see: Cullen (2008); Sivakumaran (2009), pp. 363–368; La Haye (2008), p. 13; Fleck (2008), p. 611, who finds that the ‘strange distinctions’ in the text of Art. 8(2)(d) and (f) ICC Statute are an example of ‘careless drafting’; also Meron (2000), p. 260; Bothe (2004), p. 423; Dörrmann (2002), pp. 441–442; Schabas (2007), p. 131; and ICRC Opinion Paper (March 2008), p. 3. Many of these sources discuss the relevant case law of the ICTY and ICTR, as well as reports of UN special rapporteurs. However, there are a few scholars who suggest that Art. 8(2)(f) ICC Statute creates a new threshold of application for the war crimes set out in Art. 8(2)(e) ICC Statute, different from the threshold of Art. 8(2)(d). They argue that the Art. 8(2)(f) threshold lies somewhere in between the threshold required for the application of common Art. 3 GC I-IV and the threshold for AP II; see e.g. Provost (2002), pp. 268–269; and Vite (2009), pp. 82–83. 55 The relevant ICTY judgements are Milošević, Decision on Motion for Judgement of Acquittal, IT-02-45-T (16 June 2004), para. 23 [hereinafter: Milošević]; Limaj; and Boškoski. 56 In particular see: IAComHR, Abella v Argentina (1997). 57 E.g. La Haye (2008), pp. 9–13; Sivakumaran (2009); Vite (2009), pp. 76–77; Pejic (2007), pp. 85–86; and Moir (2002), p. 36. 58 Pejic (2007), p. 88; see also ICTY, Tadić Jurisdiction, para. 117. Scholars also conclude that at least some provisions of AP II are applicable to NIACs that do not meet the high threshold of application of Art. 1 AP II, as customary IHL, e.g. Fleck (2008), p. 622; La Haye (2008), p. 74; and Moir (2002), p. 87, calling attention to the fact that states are willing to apply rules that go beyond the protection offered by common Art. 3 GC I-IV to NIACs that do not meet the high threshold set out in Art. 1 AP II. Some even argue that ‘there has been an evolution and one can argue today that Article 1 of the second Additional Protocol has been implicitly replaced by Article 8 paragraph 2 of the ICC Statute’ (David (2003), p. 49). 59 See the treaties cited infra, ns. 25–31.



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developments in customary IHL applicable to NIACs. First, there are certain rules in the ICRC Study that non-state armed groups might not be able to implement easily if they are involved in a low-intensity armed conflict where they do not exercise control over territory. This would for example be the case with the implementation of Arts. 5 and 6 AP II as well as rules 99 and 100 ICRC Study relating to internment in NIACs.60 Against this background, more recently, suggestions are being made to reconsider the prevalent assumption of the automatic application of all customary IHL as soon as the minimum threshold requirements of organisation and intensity are met, and to possibly replace it with a ‘sliding scale … providing for increasing obligations for armed groups according to their degree of organisation and the intensity of the violence in which they are involved’.61 The possible implications of this suggestion for the parallel application of IHRL for the state party to a NIAC, as well as for the IHL principle of the equality of belligerents, will be discussed in more detail in chapter VI.62 Second, it is unclear whether the complete elimination of different types of NIACs in customary law is sufficiently supported by state practice and opinio iuris. After all, there is a long history of reluctance to apply IHL to NIACs that did not reach the high intensity required by Art. 1 AP II; and the record of compliance with AP II has not been impressive either.63 Without doubt, AP II as a treaty retains its own threshold of application to high-intensity NIACs as defined in Art. 1 AP II,64 even though certain provisions of the Protocol have become applicable to lower-intensity NIACs through developments in customary law. To conclude, for the purpose of this study, the two criteria (the existence of an organised armed group and a minimum level of intensity of hostilities) are relevant to describe the threshold of application for common Art. 3 GC I-IV as well as for the customary IHL norms criminalised in Art. 8(2)(c) and (e) ICC Statute. Some caution must be exercised in regard to the thresholds of customary rules set out in the ICRC Study that go

60 See Sassòli and Olsen (2008), pp. 616–627 for a detailed discussion of this problem. 61 Sassòli (2010), p. 20; and the Debate in (2011) 93 IRRC 425 by Sassòli and Shany, pp. 426–431. 62 See particularly chapter VI, section 5.3.3. 63 Based on this fact, in 1989 Meron still observed that ‘large scale violations of and indifference to the Geneva Protocols hinder the development of customary law from their provisions’ (Meron (1989), p. 77). 64 Sivakumaran (2009), p. 377.

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beyond these provisions. Each of them must be looked at individually. First, it must be considered whether there is sufficient evidence that they are indeed applied to NIACs of lower intensity as customary rules. Second, the question must be asked as to whether they are and can realistically be applied by non-state armed groups (and states) to conflicts that do not meet the high threshold of Art. 1 AP II, in particular when these customary rules are based on treaty rules of AP II. 3.2. ‘New’ Types of Non-International Armed Conflicts? In addition to the ‘classical’ NIAC discussed so far, which takes place between a government and dissident non-state armed groups fighting against the government of a state on the state’s territory, there are at least two more ‘types’ of armed conflicts that might also qualify as NIACs: first, conflicts between a government and a non-state armed group on the territory of another state (having spread from the first state); and second, conflicts where a government fighting a non-state armed group is supported by one or more other states.65 It has been convincingly argued that, despite their wording,66 common Art. 3 GC I-IV and AP II must apply to the former type of armed conflicts, as it is difficult to classify these conflicts as IACs.67 This understanding would also be in harmony with the finding that ‘internal conflicts are distinguished from international armed conflicts by the parties involved rather than by the territorial scope of the conflict’,68 i.e. that IACs are only those conflicts that are fought between two or more states.69 The latter type of conflict is also more often than not classified as a NIAC, since third state intervention into a NIAC on the invitation of the government on whose territory the armed conflict takes place

65 There are, of course, also NIACs that can become IACs through the involvement of another state fighting on the side of the rebels. As discussed by the ICJ in the Nicaragua Judgment, paras. 219 and 254 and (differently) by the ICTY, Prosecutor v Tadić, Judgement of the Appeals Chamber, IT-94–1-A (15 July 1999), paras. 88–171; for a discussion of different conflict situations whose classification is not entirely clear see also Vite (2009), pp. 83–93. 66 The wordings suggest that they apply only to conflicts ‘occurring in the territory of one of the High Contracting Parties’. 67 For details of the argument see Sassòli (2004), pp. 200–201. 68 Zegveld (2002), p. 136; also Carswell (2009), p. 154. 69 Emphasised by Pejic (2007), p. 81; Sassòli (2004), p. 199; and Sassòli and Bouvier (1999), pp. 88–89. An exception are of course ‘wars of national liberation’ as defined in Art. 1(4) AP I.



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does not usually change the character of the conflict from a NIAC into an IAC.70 Nonetheless, a new category of armed conflicts under IHL has been suggested for these situations: to identify such conflicts as ‘extra-state armed conflicts’, and to develop ‘new’ IHL applicable to these situations.71 The present author agrees with others that this is an unrealistic and probably undesirable demand.72 It is very unlikely that states will come together to reform IHL of NIACs any time soon;73 and any such undertaking risks states watering down existing standards. For the present study, the existence of other ‘new’ types of armed conflicts that might qualify as NIACs shows that the parallel application of rules of IHL and IHRL that will be discussed below is not necessarily limited to ‘classical’ NIACs. Since no separate study on the extraterritorial application of the ICESCR could be conducted in this study, ‘classical’ NIACs nonetheless remain the type of NIAC that underlies the discussion in chapters VI–VIII. The discussion now turns to the purpose, limits and principles of IHL, including of any particularities that characterise the application of these principles in NIACs. These principles make the rules of IHL more understandable, and their examination is another prerequisite for a discussion of the interrelationship of IHL and ESC rights in NIACs in the chapters to come.

70 Fleck (2008), p. 605; International Institute of Humanitarian Law, Manual on the Law of Non-International Armed Conflict’ (2006), p. 2 [hereinafter: Manual on the Law of NIACs (2006)]; see also the classification of the armed conflict in Afghanistan after the fall of the Taliban and the establishment of a transitional government in 2002 in the panel discussion with David (2003), p. 56. 71 Schöndorf (2004); and Corn (2007). 72 In particular, the present author thinks that Schöndorf’s suggestion to protect noncombatants according to the rules of IACs, whereas combatants/‘fighters’ should be protected according to the rules of NIACs (pp. 48–62) ignores the fact that the rules for the protection of combatants and non-combatants are very much interrelated. Implementing Schöndorf’s suggestions would pose more restrictions on the conduct of military action by non-state armed groups without letting them benefit from the POW-status. It would therefore be unrealistic to expect that NASGs will follow such ‘new’ rules in ‘extra-state armed conflicts’ envisaged by Schöndorf. 73 See Sassòli (2004), pp. 220–221, pointing out that such a reform would necessarily have to give more rights to insurgents if it is to be effective. It is doubtful that states are ready to accept this, and also whether non-state armed groups would respect any such new law if they are not fully included in its negotiation. Sassòli also mentions that there is no desire to introduce another category of armed conflict into IHL, since this will add to the existing difficulties of classifying armed conflicts under IHL.

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chapter three 4. Purpose, Limits and Principles of IHL Applicable to Non-International Armed Conflicts 4.1. Purpose and Limits of IHL

The main purpose of IHL is to limit the use of armed force in armed conflicts as far as possible by sparing those persons from attacks who do not or no longer directly participate in hostilities, without precluding the possibility that the parties to the conflict can achieve their military aims. Under IHL, the aim of an armed conflict can only be to weaken the military potential of the adversary.74 Thus, in NIACs, for governmental forces this means using only as much force as is necessary to overcome the military capacities of a dissident non-state armed group; for the non-state armed group it implies using only the force required to overcome the military control of the government over a country.75 The two limits inherent in IHL in all types of armed conflicts follow from its purpose:76 first, IHL makes no claim that it can put an end to armed conflicts, but only aims to reduce the human suffering caused. It cannot, therefore, protect all persons affected by armed conflicts, not even all civilians and persons hors de combat. Nor can IHL prevent the destruction of all civilian objects.77 The second limit is that IHL presupposes that the parties to the conflict have rational aims: overcoming the military strength of the adversary. In many NIACs this may not be the case, since they are often driven by ethnic, religious or economic factors. Seizing control over economic resources or achieving the displacement of a population are examples of objectives parties may have in contemporary armed conflicts. This fact often underlies the problems with ensuring compliance with IHL. The principles of IHL—humanity, military necessity, distinction, proportionality, and the separation of ius in bello and ius ad bellum78—are 74 As recognised in early IHL treaties, e.g. the 1868 St. Petersburg Declaration held that ‘the only legitimate object which states should endeavour to accomplish during war is to weaken the military forces of the enemy’; see also, Pictet (1985), p. 62; and Sandoz, Swinarski and Zimmermann (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva: ICRC, 1987), para. 1863 [hereinafter: ICRC Commentary (AP I/II)]. 75 Sassòli and Bouvier (1999), p. 67. 76 As summarised ibid., p. 68. 77 This is clear from e.g. the concept of ‘collateral damage’, see infra, section 4.5 and chapter VI, parts 4 and 5. 78 There is another IHL principle—the prohibition of causing unnecessary suffering. This principle refers primarily to the protection of combatants/‘fighters’ from the effects of



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closely connected to the purpose and limits of IHL. They shall now be looked at in more detail, in particularly considering the extent to which they apply to ‘classical’ NIACs as a matter of treaty and/or customary law. 4.2. Humanity The principle of humanity requires respect for the human person in times of war, obliging parties to the conflict to minimise suffering, injury and destruction which is unnecessary for achieving the legitimate military purpose of armed conflicts.79 It is clearly applicable to NIACs.80 Balanced against the principle of military necessity in IHL, it commands the humane treatment of persons who are not directly participating in hostilities (civilians) and those who are placed hors de combat.81 In the words of Jean Pictet, humane treatment means ‘the minimum treatment which must be accorded to the individual to enable him [or her] to lead an acceptable existence’.82 Regarding civilians, the principle of humanity requires both that they are spared from direct and, to some extent, indirect attacks; and that efforts are made to alleviate their suffering resulting from the armed conflict. Alleviation can be brought about for instance through the provision of humanitarian assistance, including essential medical care. With regard to combatants/‘fighters’ the principle of humanity entails that those who are hors de combat by being wounded, sick or captured, shall not be attacked since they no longer constitute a military threat to the adversary. IHL contains detailed rules on the treatment of the wounded and sick,83 and—for IACs—on the treatment of captured combatants (POWs),84 spelling out in detail the principle of humanity for these categories of persons. 4.3. Military Necessity Early instruments like the Lieber Code defined the concept of military necessity as ‘those measures which are indispensable for securing the certain weapons. Since this work concentrates on the protection of civilians, this principle is not discussed here. However, see Gardam (2004), pp. 67–75 for an analysis. 79 Pictet (1985), pp. 61–62. 80 Without doubt, the principle of humanity is enshrined in Art. 3 common to GC I-IV applicable to any NIAC. 81 Art. 3(1) common to GC I-IV. 82 Pictet (1985), p. 63. 83 See chapter VII, part 4 for further analysis. 84 1949 GC III Relative to the Treatment of Prisoners of War.

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ends of the war, and which are lawful according to the modern law and usage of war’.85 Thus, the principle of military necessity allows parties to the conflict to use as much force as is necessary to achieve the legitimate purpose of the armed conflict, namely the military submission of the enemy, as long as this is not otherwise prohibited by IHL, including by the principle of humanity. As Pictet holds, ‘any violence which is not essential to this purpose [to weaken the military potential of the enemy] is superfluous’86 and therefore unnecessary. The principle of military necessity is woven into IHL applicable to IACs and NIACs. While it has previously been argued that the principle of military necessity can override other norms of IHL if this is indispensable for the success of military operations, to avoid defeat or to escape from extreme danger, this position is no longer defensible.87 This is because the ‘rules of IHL relating to the conduct of military operations were adopted in full awareness of the fact that “military necessity” was the very criterion of that conduct’.88 In other words, the principle of military necessity is already included in the rules of IHL; it has been carefully balanced against the principle of humanity, and therefore preserves military interests sufficiently. This balance cannot be departed from by invoking military necessity as a justification for non-compliance with certain rules of IHL.89 Besides, the principles of humanity and military necessity must not automatically be opposed to one another.90 Notably in NIACs where it is often essential for both parties to win the support of the civilian population, exercising (humanitarian) restraint can become a military necessity.91 4.4. Distinction Since military operations can only be directed against the military potential of the enemy, consisting of military human and material resources, these resources must be clearly distinguished from civilians and civilian objects.

85 Art. 14 Lieber Code. 86 Pictet (1985), p. 62. 87 Greenwood (2008a), pp. 37–38. 88 Report of the ILC on its 32nd Session, A/CN.4/SER.A/1980/Add.1(Part 2) (1980), p. 46 (para. 28). 89 Greenwood (2008a), p. 38; see also Report of the ILC on it 32nd Session, p. 46 (para. 2); and Pictet (1985), p. 61. 90 Greenwood, ibid. 91 As noted supra, section 2.1; and further explored in chapter VI, section 4.2.4.



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The principle of distinction operates in a slightly different manner in NIACs than in IACs. The reason for this is states’ reluctance to give nonstate armed groups a ‘right’ under IHL to attack government security forces, and to grant them POW-status in the event of their capture. Nonetheless, distinction plays an important role in NIACs, and much of the respect and protection that IHL offers to the civilian population is based on it. In NIACs, the parties to the conflict must distinguish between civilians and persons who are taking an ‘active/direct part in hostilities’ (‘fighters’) under common Art. 3(1) GC I-IV, and Arts. 4(1) and 13(3) AP II;92 and between civilian objects and military objectives as a matter of customary law.93 The parties to the conflict are only permitted to direct their attacks against persons taking ‘active/direct part in hostilities’ and against military objectives. 4.4.1. Distinction between Civilians and Persons Taking Active/Direct Part in Hostilities The principle of distinction between civilians and person taking ‘active/ direct part in hostilities’ is enshrined in Art. 13(2) AP II. It holds that ‘the civilian population as such, as well as individual civilians, shall not be the object of attack’, a requirement which is supported by common Art. 3(1)’s demand to treat all persons ‘taking no active part in hostilities’ (which includes civilians) humanely in all circumstances.94 The principle of distinction between civilians and persons taking ‘active/direct part in hostilities’ is also part of customary IHL applicable to NIACs as is clear from Art. 8(2)(e)(i) ICC Statute and rule 1 of the ICRC Study,95 which are confirmed in the jurisprudence of the ICTY96 and the writings of many authors.97 92 Common Art. 3(1) GC I-IV refers to ‘persons taking no active part in hostilities’; whereas Art. 4(1) and Art. 13(3) AP II refer to civilians who enjoy protection ‘unless and for such time they take a direct part in hostilities’ (my emphasis). 93 Rules 7–10 ICRC Study, Vol I, pp. 25–36. 94 This is argued by Moir (2002), p. 116 (including n. 132); see also Art. 4 AP II. 95 Rule 1 ICRC Study, Vol I, pp. 3–8. 96 E.g. in ICTY, Tadić Jurisdiction, paras. 100–118 and 127, summarising that customary rules have developed to govern ‘internal strife’ covering ‘such areas as protection of civilians from hostilities, in particular from indiscriminate attacks …’; for an analysis of the ICTY’s approach see Fenrick (2004), pp. 164–168. See also Report of the International Commission of Inquiry on Darfur to the UN Secretary-General, 25 January 2005, paras. 165–166 and 172; and Report of the Secretary-General’s Panel of Experts on the Accountability in Sri Lanka, 31 March 2011, paras. 194–195 and 238. Both refer to the obligations of non-state armed groups as well. 97 Moir (2002), pp. 117 and 144; Fleck (2008), pp. 613–614; Manual of the Law of NIACs (2006), pp. 11 (para. 3) and 18–19 (paras. 1 and 2); La Haye (2008), pp. 57–67 analysing state

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However, there is an on-going debate about the details of the application of this principle in NIACs. It concentrates on the question of what activities constitute ‘tak(ing) a direct/active part in hostilities’,98 and extends to the related question of whether a member of an armed group can be attacked and possibly be killed in accordance with IHL or IHRL (the right to life). Although the ICRC adopted its “Interpretative Guidance on the Notion of Direct Participation in Hostilities under IHL” in 2009,99 the debate has not come to an end and practical problems remain.100 However, for the context of this study, this question is not of primary concern, and therefore the discussion now turns to the operation of the principle of distinction with regard to military objectives and civilian objects. 4.4.2. Distinction between Military Objectives and Civilian Objects Neither common Art. 3 GC I-IV nor AP II contain provisions which explicitly require applying the principle of distinction to objects in NIACs, and to only attack military objectives, comparable to the provisions in Arts. 48 and 52(2) AP I. In contrast to Art. 52(2) AP I, they also contain no definition of military objectives. However, more recent treaties that apply to NIACs include provisions on the distinction between military objectives and civilian objects and on the definition of military objectives.101 While the ICC Statute does not directly criminalise deliberate attacks on civilian objects,102 the ICRC Study puts forward that the distinction between military objectives and civilian objects (hence including the definition of military objectives) apply to NIACs as custom.103 This is supported by ICTY practice and opinio iuris with regard to these rules; ICRC Commentary (AP I/II), para. 4761; Sassòli and Cameron (2006), p. 45; Zegveld (2002), p. 82; and Cassese (1984), p. 106. However, in 1991 Greenwood (1991), p. 113, did not directly confirm the customary nature of the principle of distinction between civilians and ‘fighters’ in NIACs. 98 In addition to the wording of common Art. 3/Art. 4(1) GC I-IV and 13(3) AP II, there are other descriptions for ‘fighters’ in IHL of NIACs, such as ‘members of dissident armed forces or other organised armed groups’ (Art. 1(1) AP II); ‘civilians taking direct part in hostilities’ (Art. 8(2)(e)(i) ICC Statute); and ‘combatant adversary’ (Art. 8(2)(e)(ix) ICC Statute). 99 ICRC, Interpretative Guidance on the Notion of Direct Participation in Hostilities under IHL (May 2009). 100 E.g. Sassòli and Olsen (2008), pp. 605–616; Kleffner (2007); and the issue of the (2010) 42 NYU JIL & Politics 637 with contributions of Goodman and Jinks, Watkin, Schmitt, Boothby, Parks, and Melzer. 101 Arts. 2(6) and 3(7) Protocol II to the CCW as amended on 3 May 1996; Arts. 1(3) and 2(1) of Protocol III to the CCW (applicable to NIACs through amendment of Art. 1 of the CCW of 21 December 2001); and Arts. 1(f) and 6(a) of Protocol II to the Hague Convention for the Protection of Cultural Property. 102 Such attacks constitute a war crime in IACs only, see Art. 8(2)(b)(ii) ICC Statute. 103 Rules 7 and 8 ICRC Study, Vol I, pp. 25–32.



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jurisprudence104 and by the findings of many authors who have analysed this question. Authors argue that these rules either have developed into customary law applicable to NIACs;105 or are applicable by implication from the concept of ‘general protection’ of the civilian population in Art. 13(1) AP II which is broad enough to cover the principle of distinction between military objectives and civilian objects.106 It has also been argued convincingly that it is difficult to imagine how the prohibition of direct attacks against the civilian population and individual civilians mentioned above can be respected if attacks are not also limited to military objectives.107 As far as armed groups are concerned, it can realistically be expected that even relatively weak non-state armed groups are, as a minimum, able to apply the core of the principle of distinction in regard to objects, i.e. to make all efforts to distinguish between military objectives and civilian objects.108 This is in particular the case when such a distinction is obvious (as in recognising a school or church as civilian objects, a tank or military barracks as military objectives). Some difficulties may arise, at least for relatively weaker non-state armed groups, when intelligence needs to be

104 ICTY, Tadić Jurisdiction, paras. 100–119 and 127; Prosecutor v Kupreškić, Trial Chamber Judgement, IT-95–16-T (14 Jan 2000), para. 521 [hereinafter: Kupreškić]; Prosecutor v Martić, Review of Indictment Pursuant to Rule 61, Trial Chamber, IT-95-11-R61 (8 March 1996), paras. 10–18; and Prosecutor v Galić, Trial Chamber Judgement, IT-98-29-T (5 Dec 2003), para. 57; see also Fenrick (2004), pp. 164–168; Report of the International Commission of Inquiry on Darfur to the UN Secretary-General, 25 January 2005, para. 165(vi); Report of the Secretary-General’s Panel of Experts on the Accountability in Sri Lanka, 31 March 2011, para. 196; and Report of the International Commission of the Inquiry to Investigate all Alleged Violations of International Human Rights Law in the Libyan Arab Jamahiriya, A/HRC/17/44, 12 January 2012, paras. 146–147. 105 E.g. Manual on the Law of NIACs (2006), p. 6 (para. 1) regarding the definition of military objectives and pp. 11 (para. 3) and 19 (para. 3) for the principle of distinction between military objectives and civilian objects; Fleck (2008), p. 614; La Haye (2008), pp. 57–67, reviewing state practice and opinio iuris; Sassòli and Cameron (2006), pp. 45–46. The customary status of the definition of ‘military objectives’ (for IACs and NIACs) is, however, still questioned by a few, see Parks (2006), p. 91. 106 Bothe, Partsch and Solf (1982), p. 677. 107 Sassòli and Cameron (2006), pp. 45–46. 108 Non-state armed groups’ obligation to adhere to the principle of distinction between civilian and military objects is clearly supported by the Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, 25 January 2005, para. 165(vi) in conjunction with para. 172; non-state armed groups seem to recognise this obligations themselves, see e.g. Code of Conduct of the National Liberation Army (ELN) operating in Colombia and Code of Conduct of the National Transition Council (NTC) in Libya, reprinted in (2011) 93 IRRC 483, p. 490 and p. 500 respectively.

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gathered to identify lawful targets,109 for example when the target in question is a so-called ‘dual-use’ object.110 To conclude, there seems to be agreement that in NIACs the definition of military objectives is the same as in IACs; and that parties to the conflict can attack only objects that fall under this definition. There is, however, considerable debate about the interpretation of this definition which will be explored further in chapter VI, together with the question of how this interpretation could be influenced by the parallel application of ESC rights. 4.5. Proportionality Like the principle of distinction, the principle of proportionality results from balancing the principles of humanity and military necessity. It requires that incidental losses of civilian life as well as damage to civilian objects that may occur when legitimate military objectives are targeted are not excessive (disproportionate) in relation to the expected military advantage of the attack. While the principle of proportionality is enshrined in Arts. 51(5)(b) and 57(2)(a)(iii) AP I applicable to IACs, there is no explicit comparable provision in common Art. 3 GC I-IV or AP II. As a matter of treaty law applicable to NIACs, the principle of proportionality can only be found in the Amended Protocol II to the CCW.111 There is therefore an on-going debate about the applicability of the principle of proportionality to NIACs, either as implied in applicable treaty provisions, or as a matter of customary law. The ICRC Commentary to AP II notes for instance, that the principle of proportionality is implied in Art. 13(1) AP II which affords the civilian population and individual civilians ‘general protection against the dangers arising from military operations’. It puts forward that this obligation requires not only refraining from direct attacks against civilians and civilian objects, but also ‘avoiding, or in any case reducing to a minimum, incidental losses’, and to take safety measures.112 It further holds that general

109 In this context see the analysis by Blum (2011a), pp. 192–95, discussing the scope of obligations of technologically less advanced states to employ precautions in attack in IACs, which could arguably be more limited than that of technologically well-equipped states. This could also be relevant in NIACs in regard to the state and non-state party to the conflict, as discussed by Sassòli and Shany in their Debate in (2011) 93 IRRC 425, p. 435. 110 On the notion of ‘dual-use’ objects see below, chapter VI, part. 2. 111 Art. 3(8)(c) Protocol II to the CCW as amended on 3 May 1996. 112 ICRC Commentary (AP I/II), para. 4770.



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principles related to the protection of civilians, including the principle of proportionality, are relevant for and must be applied in both international and internal conflicts.113 Schmitt et al seem to share this view by holding that the ‘relative absence of express mention of proportionality in instruments governing NIACs should not be construed as meaning that it is inapplicable in such conflict’.114 Other authors suggest that it is difficult to read the principle of proportionality into Art. 13 AP II.115 Other sources, such as the ICRC Study, hold that the principle of propor­ tionality has become part of customary IHL applicable to NIACs,116 backed by a considerable amount of state practice,117 and the arguments of different authors.118 Others are more cautious. The fact that disproportionate attacks on military objectives do not constitute a war crime in NIACs under the ICC Statute supports such caution.119 Gardam, for example, is sceptical, but accepts that there are certain tendencies which seem to suggest that it is ‘becoming increasingly realistic to argue that proportionality will soon have a role to play in some internal conflicts’.120 Among other things, she takes the jurisprudence of the ICTY as evidence for these tendencies,121

113 Ibid., para. 4772. 114 Manual on the Law of NIACs (2006), pp. 22–23. 115 E.g. Bothe, Partsch and Solf (1982), pp. 676–678, holding that the principle of distinction can be inferred from Art. 13 AP II, but that it is difficult to infer the principle of proportionality from it because the prohibition of disproportionate attacks was not even included in draft AP II before its text had been radically cut and simplified during the Diplomatic Conference in 1977; and Gardam (2004), p. 125, referring to the ICJ Nuclear Weapons Opinion, where the ICJ found merely that the use of weapons incapable of distinguishing between civilian and military targets amounts to making civilians the object of attack. Making civilians the object of attack is also prohibited under Art. 13(2) AP II, and therefore, such an indiscriminate attack falls under it. However, this does not yet imply that disproportionate attacks are also prohibited under AP II. 116 Rule 14 ICRC Study, Vol I, pp. 46–49. 117 ICRC Study, Vol II, pp. 297–326, much of which relates to both IACs and NIACs. 118 E.g. Meron (1989), pp. 73–74; Oeter (2008), p. 209; Watkin (2005), p. 5; Turns (2002), p. 145; and Zegveld (2002), p. 82. 119 Art. 8(2)(b)(iv) ICC Statute makes ‘intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects … which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated’ a war crime in IACs only. However, this alone does not allow the conclusion that the principle does not apply to NIACs, as not all violations of IHL amount to war crimes. 120 Gardam (2004), pp. 126–127 (emphasis added). 121 Ibid.; in Tadić Jurisdiction, para. 126, the ICTY just held that the ‘general essence’ of rules and principles applicable in IACs also apply to NIACs, which would include the principle of proportionality.

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which have been confirmed in its more recent case law122 and by UN reports.123 Other authors avoid making an explicit statement as to whether they regard the principle of proportionality a part of customary law applicable to NIACs. Fleck, for instance, clearly holds that the principle of distinction, between fighters and civilians, and between military objectives and civilian objects, is applicable in NIACs as a matter of customary law. He does not find the same with regard to the principle of proportionality,124 but does mention a ‘clear trend in customary humanitarian law towards expanding the scope of application of the rules governing the conduct of hostilities to NIACs’, manifested in state practice and opinio iuris;125 the principle of proportionality also does not appear in his list of rules which are different in IACs and NIACs.126 As far as non-state armed groups are concerned, questions may be asked about the extent to which the diverse types of non-state armed groups are able to apply all aspects of the principle of proportionality when making military-target decisions. Again, there is no reason to exempt non-state armed groups from the core obligation to adhere to the principle of proportionality.127 Yet, the fact that many of them might only possess older conventional weapons which are per se more likely to create collateral damage than the use of precision-guided munitions, hints at the possibility that the scope of non-state armed groups’ obligations under 122 E.g. in Kupreškić (para. 524), where the ICTY found that the principle of proportionality as formulated in Art. 57 AP I represents customary international law and, in addition to this, a general principle of international law. While it is not entirely clear from the Kupreškić judgement whether the ICTY also considered the principle applicable to NIACs, the applicability was confirmed in Prosecutor v Hadžihasanović and Kubura, Trial Chamber Judgment, IT-01-47-T (25 Mar 2006), para. 45 in conjunction with paras. 27–28. 123 Report of the International Commission of Inquiry on Darfur to the UN SecretaryGeneral, 25 January 2005, para. 165(viii); and Report of the Secretary-General’s Panel of Experts on the Accountability in Sri Lanka, 31 March 2011, para. 203. 124 Fleck (2008), p. 614. 125 Ibid., pp. 615–616 and 624–625. 126 Ibid., p. 627. Sassòli and Cameron (2006), p. 45; Fenrick (2004), pp. 174–177; and La Haye (2008), pp. 57–67 also do not discuss whether the principle of proportionality could be part of customary law applicable to NIACs. 127 The UN Report of the International Commission of Inquiry on Darfur to the UN Secretary-General, 25 January 2005, certainly implies that the principle of proportionality binds armed groups, see para. 165(viii) in conjunction with para. 172. There are indications that non-state armed groups are willing to apply the principle of proportionality, see e.g. the Code of Conduct of the National Liberation Army (ELN) operating in Colombia, calling for the avoidance of ‘indiscriminate attacks’ and the Code of Conduct of the National Transition Council (NTC) in Libya, reprinted in (2011) 93 IRRC 483, pp. 490 and 500 respectively.



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the principle of proportionality may at times need to be adapted to their respective military capacities.128 While the debate continues regarding the applicability of the principle of proportionality to NIACs as either implied in applicable treaty provisions or as a matter of customary law, this author tends to agree that the principle of proportionality in attack must apply to NIACs in some form, most probably as a matter of custom.129 At least for the state party to the conflict the details of this principle should not only be described by drawing analogies to IHL of IACs, but can also be influenced by IHRL, a matter that will be discussed in chapter VI. This suggestion gains force against the background of the on-going discussion about the most appropriate interpretation and application of the principle of proportionality in IHL of IACs, both as a conventional and customary norm. 4.6. Separation of ius ad bellum from ius in bello and the Principle of the Equality of Belligerents Another important principle of IHL is its strict separation from ius ad bellum (legality of the use of force).130 This separation requires that IHL (ius in bello) is respected and implemented by all parties involved in an armed conflict regardless of any argument under ius ad bellum (in IACs) or the breach of national law or other international law (in NIACs). For IACs, it rejects any suggestion that the application of IHL should only benefit the victims of aggression (i.e. parties acting in individual or collective selfdefence131 or under UN Security Council enforcement measures132) and not the aggressor responsible for starting the hostilities. For NIACs, it rejects the argument that non-state armed groups shall not benefit from the application of IHL because they violated national law by taking up arms against their government;133 or that the government and its security

128 In this context, see the analysis by Blum (2011a), pp. 188–192, of the obligations of technologically less advanced states to apply the principle of proportionality in IACs, which can be relevant in NIACs as well in regard to the non-state armed groups involved. The latter is discussed by Sassòli and Shany in (2011) 93 IRRC 425, p. 435. 129 The evidence of state practice and opinio iuris in the ICRC Study is quite substantial: see ICRC Study, Vol II, pp. 297–326. More recent jurisprudence of the ICTY and UN reports also support this development. 130 Clearly stated in AP I, preamble, para. 5. 131 As recognised in Art. 51 UN Charter. 132 As foreseen in Chapter VII UN Charter. 133 Rebellion is criminalised in the domestic law of every state, and the most severe punishments are usually applied to this offence.

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forces should not benefit from it because they contributed to the breakdown of social harmony within a state resulting in an armed struggle.134 The autonomy of ius in bello with regard to ius ad bellum has ‘practical, policy and humanitarian reasons’.135 For instance, in IACs, it is always contentious which party resorted to force in conformity with ius ad bellum and which party was in violation. In NIACs it can equally be controversial whether the non-state armed group or the government bears a greater share of responsibility for the outbreak of hostilities. The victims of either type of conflicts, however, need the same humanitarian protection, and are not necessarily responsible for the violation of ius ad bellum by ‘their’ state in an IAC; or the violation of national law by non-state armed groups active in their territory in an NIAC. Thus, making the application and interpretation of ius in bello contingent on ius ad bellum would endan­ ger ‘the whole majestic edifice of humanitarian law’.136 IHL must consequently apply to both parties whenever there is de facto an IAC or NIAC. Nonetheless, the principle of separation of ius ad bellum from ius in bello is not complete in NIACs. While it is respected as far as the obligations deriving from Art. 3 GC I-IV and AP II are concerned, the recognition of the autonomy of ius in bello with regard to the ius ad bellum does not extend to the status of ‘combatants’ who have fallen into the hands of the adverse party. The government side will always try to prosecute and punish members of non-state armed groups for taking part in hostilities under national law, and may even adopt new legislation during the armed conflict, including legislation criminalising support for the respective non-state armed group. This is not so in IACs, where it is impossible for either parties to a conflict to try and punish enemy combatants for their mere participation in hostilities under IHL, the ius ad bellum or domestic law.137 This also shows that in practice where states will always make an effort to enforce national law, the IHL principle of the equality of belligerents in NIACs may be there in theory,138 but often cannot have practical 134 For a more detailed discussion of the principle of separation of ius in bello from ius ad bellum in NIACs see Bugnion (2003). 135 Sassòli and Bouvier (1999), p. 84; also Pictet (1985), pp. 83–84; and Roberts (2008). 136 Pictet, ibid., p. 84; and Roberts (2008), pp. 937–942. 137 However, states can, and even have an obligation, to prosecute, try and punish enemy combatants for war crimes. 138 States and non-state armed groups have the same obligations under common Art. 3 GC I-IV, AP II and customary IHL applicable to NIACs.



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relevance.139 Despite the provision in Art. 6(2) AP II,140 non-state armed groups themselves cannot easily try captured members of government security forces—because they lack resources, capabilities or power to comply with fair trial standards required by this Article, in particular when they do not control territory; and/or because states will do everything they can to deny non-state armed groups the right to do so.141 Similarly, rule 99 of the ICRC Study establishes that arbitrary detention is prohibited in NIACs.142 In practice, this rule gives non-state armed groups a choice between ‘legislating’ and instituting habeas corpus proceedings or not detaining anyone, not even government soldiers. The question has rightly been asked whether the latter can realistically be expected from armed groups when the former is practically impossible for them,143 in particular because states will strongly oppose any ‘legislating’ by non-state armed groups.144 This difficulty with the practical application of the principle of the equality of belligerents is one reason why there is often little motivation among non-state armed groups to comply with IHL.145 In IACs the equality of belligerents helps to ensure compliance with IHL, as does the related existence of a POW-status that functions as an incentive for combatants in IACs to respect IHL. To conclude, this brief discussion of IHL principles in NIACs shows that these principles indeed apply to these types of conflicts. This was most prominently pronounced by the ICTY holding that ‘there exists a corpus of general principles and norms in internal conflicts embracing common Article 3 but having much greater scope’.146 The more detailed interpretation and application of these principles to state parties in NIACs will be examined further in chapters VI-VIII, and will not only be determined by analogous application of IHL of IACs, but also by IHRL. 139 As observed by Sassòli (2003), p. 12; and Bugnion (2003), pp. 28–29. 140 Art. 6(2) AP II implies that non-state armed groups can set up courts, but requires courts ‘offering the essential guarantees of independence and impartiality’. 141 This will be mainly for political reasons, and is also related to the objection of states to any kind of ‘legislation’ by non-state armed groups; see Sassòli (2010), pp. 33–36. 142 Rule 99 ICRC Study, Vol I, pp. 344–351. 143 Sassòli (2010), p. 17. 144 Ibid., p. 33. 145 For further discussion of the difficulties of ensuring non-state armed groups’ compliance with IHL see: ICRC, Increasing Respect for International Humanitarian Law in Non-international Armed Conflicts (2008), pp. 11–12; and the constructive suggestions by Sassòli (2010) of how to address these difficulties. 146 ICTY, Tadić Jurisdiction, paras.117 and 126 referring to the ‘general essence’ of the rules applicable in IACs that has become applicable to NIACs as a matter of custom; see also the analysis by La Haye (2008), p. 74.

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The development of IHL applicable to NIACs has always been heavily influenced by states’ reluctance to regulate rebellions and other internal conflicts for political reasons. This is clearly reflected in the limited content of common Art. 3 GC I-IV and the high threshold of application of AP II. Yet, not everyone has always rejected the regulation of rebellion through international law. Throughout history, some military strategists have recognised the need to win the support of the general population for achieving a military victory over a group of insurgents, which can often only be guaranteed by exercising restraint in the use of force against insurgents. Despite the substantial reluctance to regulate NIACs through IHL, the last 20 years have seen a great expansion of treaty- and particularly customary-IHL applicable to NIACs that has narrowed the gap between the number of rules applicable to this type of conflict and those applicable to IACs. This development has, however, not resulted in a complete elimination of the differences between IACs and NIACs. Some of the rules the ICRC Study holds to be applicable to NIACs as a matter of custom have to be treated with some caution, and there are justified calls in academic literature to take better account of the factual differences between IACs and NIACs when further consolidating and developing IHL of NIACs. For the discussion of the parallel application of IHL and ESC rights in upcoming chapters this implies that the customary status of different IHL rules has to be evaluated rule-by-rule, and that the evaluation is likely to influence this parallel application: where no customary IHL rule exists to close gaps in IHL treaty law of NIACs, or where this rule is unclear, IHRL may have a greater role to play, at least as far as states’ obligations are concerned. The threshold-question has often complicated the application of IHL to NIACs. In recent years an emerging consensus on two criteria that determine the threshold of application of (at least) common Art. 3 GC I-IV and IHL rules the violations of which are criminalised in Art. 8(2)(d) and (f) ICC Statute can be observed: the existence of an organised armed group and a certain level of intensity of armed clashes. The thresholds of application of customary rules applicable to NIACs set out in the ICRC Study that go beyond common Art. 3 and the provisions of the ICC Statute are not entirely clear. Evidence of state practice and opinio iuris or lack thereof on the threshold of application of these rules must therefore be evaluated. Moreover, the question has to be asked whether non-state armed groups



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can realistically be expected to apply a specific rule in a conflict that does not meet the high threshold of Art. 1 AP II. The purpose of IHL—to minimise the suffering resulting from armed conflict while accepting the use of armed force to achieve certain goals— also describes the limits of IHL: the fact that it does not aim to put an end to armed conflicts and rid the world of war. With regard to the principles of IHL and their application to NIACs, all of them—humanity, military necessity, distinction, proportionality, and the separation of ius in bello from ius ad bellum—indeed apply to NIACs either explicitly or implicitly through treaty or customary norms. The details of these principles’ interpretation and application, particular regarding the principle of distinction and proportionality, are contentious in IHL. This gives room for the right to health and other human rights that (at least for the state party to the conflict) apply in parallel to IHL in NIACs, to influence this interpretation, as will be discussed in chapters VI-VIII. Furthermore, the incomplete separation of ius in bello and ius ad bellum in NIACs, and the related difficulties with the practical application of the principle of equality to the belligerent state and non-state actor, will receive further attention in a discussion about the simultaneous application of IHL and IHRL. The question will be approached of what influence the parallel application of IHRL primarily for the state party to the conflict will have on the structure of IHL applicable to NIACs.147 Before these and other legal consequences of the parallel application of IHL of NIACs and ESC rights can be analysed in more detail, chapters IV and V discuss the scope of states’ obligations under the ICESCR.

147 See the discussion in chapter VI, part 5.3.3.

CHAPTER FOUR

ECONOMIC, SOCIAL AND CULTURAL RIGHTS AND THE NOTION OF PROGRESSIVE REALISATION 1. Introduction The question of ESC rights in armed conflicts has received little attention to date. Accordingly, the main aim of this and the following chapter V is to examine the scope of states’ obligations under the ICESCR in general, and in situations of emergency/NIACs in particular. While the content of ESC rights is always the same, how much of an ESC right can be claimed by individuals in a particular situation and at a certain point in time will vary, and with it the scope of states’ obligations under the ICESCR.1 Yet, as will be shown, there are certain elements of states’ obligations that are less flexible than others. Different principles determine the more exact scope of states’ obligations flowing from ESC rights at a definite time, as well as the specific steps and measures that states should take to implement these obligations in particular situations. There are two sets of principles, which arguably also reflect an emerging two-step process to be followed in the determination of the actual scope of states’ obligations under different ESC rights. The first is set out in Art. 2(1) ICESCR which describes states’ obligations to ‘take steps’ to ‘progressively realise’ the rights of the Covenant in accordance with ‘maximum available resources’. It requires an identification of the steps a state can be expected to take to realise ESC rights, taking account of the resources available to it. The second set consists of the principles of Art. 4 ICESCR that states have to follow when they limit ESC rights— arguably including when they are forced by circumstances to introduce what the CESCR has called ‘retrogressive measures’. For the situations of NIACs that concern the present study, the additional question arises as to whether states can derogate from ESC rights, and thus whether derogation

1 E.g. Bilchitz (2003), p. 21; Bilchitz (2007), p. 218; Coomans (2005), pp. 191–92; and Scott and Alston (2000), p. 255.

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principles also play a role in the determination of the scope of states’ obligations in these situations. This chapter examines the notion of progressive realisation in greater detail, with an emphasis on its function in determining the obligations flowing from the right to health. Limitations to and derogations from ESC rights are discussed in chapter V. The CESCR has developed three analytical frameworks to bring more clarity to the notion of progressive realisation. These categorise states’ obligations under the ICESCR and describe features that steps taken towards the progressive realisation of ESC rights should exhibit. These three analytical frameworks are first, the categorisation of states’ obligations into obligations to respect, protect and fulfil ESC rights; second, the CESCR’s minimum core approach through which it seeks to identify ‘minimum essential levels’2 of each of the ESC rights that states are expected to guarantee in virtually all circumstances as a matter of highest priority; and third, the determination of four interdependent, essential features that should be present when states take steps towards the progressive realisation of ESC rights through the provision of goods, services, facilities and/ or the development and implementation of programmes towards this end: their availability, accessibility, acceptability and quality (the so-called TripleAQ-framework). These three analytical frameworks are discussed consecutively in parts 3–5 of this chapter. The examination concentrates on the latter two frameworks, as they promise to best describe the scope of states’ obligations under the ICESCR in different situations, in accordance with the notion of progressive realisation. 2. Art. 2(1) ICESCR: State Obligations to Progressively Realise ESC Rights The starting point for the analysis in this chapter is Art. 2(1) ICESCR, which defines states’ general obligations under the ICESCR, applicable to all rights of the Covenant. It imposes a duty on states to undertake(s) to take steps, individually and through international assistance and cooperation, especially economic and technical, to the maximum extent of its available resources, with the view to achieving progressively the full realization of the rights recognised in the present Covenant by all appropriate means, including particularly the adoption of legislative measures. 2 CESCR, General Comment 3 (1990), para. 10.



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Thus, states are obliged to ‘take steps’ to ‘progressively realise’ ESC rights to the ‘maximum of their available resources’. The notion of progressive realisation of ESC rights has been described as the ‘dominant characteristic’3 of these obligations. Consequently, much of the doctrinal debate about ESC rights has focused on the interpretation of this Article and the fact that states’ obligations under the ICESCR are not uniform. Although the content of rights remains the same at all times, what an individual is entitled to, including in terms of goods, services and facilities made accessible under different rights, varies in accordance with available resources and the level of development of a particular country.4 Moreover, the ICESCR rarely provides detailed guidance on the adequacy of ‘steps’ which have to be taken to progressively achieve the full realisation of ESC rights. These two factors have complicated the implementation of the ICESCR as well as the monitoring of its implementation. The notion of ‘progressive realisation’ has also been blamed for providing states with a ‘loophole large enough in practical terms to nullify the Covenant’s guarantees’.5 Critics of ESC rights have used the notion of progressive realisation as a basis for their argument that ESC rights are not immediately applicable ‘legal’ rights—and are not justiciable—but rather ‘mere aspirations’ to guide social policies.6 Overcoming this criticism has influenced the doctrinal debate on Art. 2(1) ICESCR to a considerable extent, including the shape of and the emphasis on the three mentioned analytical frameworks. At times, this has prompted ESC rights scholarship to concentrate too much on refining these ESC-rights-specific analytical frameworks7

3 E.g. Craven (1995), p. 129. 4 Chapman and Russell (2002), p. 5; Alston, Steiner and Goodman (2007), p. 295; and De Vos (1997), pp. 96–97. 5 Chapman and Russell (2002), ibid.; see also Künnemann (2002), p. 177; Eide (2001a), p. 22; Ssenyonjo (2009), p. 51; and CESCR, General Comment 3 (1990), para. 9. This danger was already recognised during the drafting process of the ICESCR, where some delegations objected to the notion of ‘progressive realisation in accordance with maximum available resources’, calling for a definite time limit within which the obligations of the Covenant should be implemented; see in particular, Summary Records of the 272nd–275th meetings of the UN Commission on Human Rights, E/CN.4/SR.272–275, 13–19 May 1952. The travaux préparatoires are also analysed by Alston and Quinn (1987), pp. 175–176. 6 Most prominently, see Vierdag (1978); and Bossuyt (1975). These arguments have been discussed extensively elsewhere, e.g. by Alston (1984); van Hoof (1984), pp. 97–110; Alston (1991); Arambulo (1999), chapters III–IV; Craven (1995), chapter I; in various contributions to Eide, Krause and Rosas (eds.) (2001); Scott and Macklem (1992–93); Riedel (2009), p. 29; and Sepulveda (2003), chapter IV. 7 Observed by Koch (2005), p. 103. This may also be one reason why the ICESCR’s limitation clause (Art. 4) has largely been ignored by ESC rights scholarship.

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without noticing that this obstructs moving towards a true de-compartmentalisation of human rights into two distinct sets—civil and political rights on the one hand and ESC rights on the other.8 We will now discuss the three analytical frameworks developed by the CESCR and their potential to help overcoming the intrinsic difficulties with the notion of progressive realisation. 3. States’ Three-Fold Obligations to Respect, Protect and Fulfil Economic, Social and Cultural Rights All more recent general comments of the CESCR categorise states’ obli­ gations flowing from ESC rights into obligations to respect, protect, and fulfil.9 The framework of a range of obligations was first developed by Henry Shue in 1980.10 Shue determined the three-fold obligations ‘to avoid depriving’, ‘to protect from deprivation’ and ‘to aid the deprived’. Shue’s approach was adopted and modified by Eide in 1987, who developed the terminology of obligations to respect, protect and fulfil ESC rights.11 In this form, the tripartite typology is widely used by the CESCR, scholars, practitioners and states. The (predominantly ‘negative’ and passive) obligation to respect generally refers to states’ obligations to refrain from any action that would interfere with individuals’ ESC rights.12 States’ obligation to protect requires states to ensure that ESC rights are not infringed by third parties.13 The (predominantly ‘positive’ and more pro-active) obligation to fulfil refers to states’ obligations to take all necessary legislative, administrative, budgetary, judicial, promotional and other measures to ensure the enjoyment of each ESC right at a satisfactory level—be it through measures that enable individuals to fulfil their ESC rights themselves or, if necessary, through   8 Tinta (2007), p. 434.   9 E.g. CESCR, General Comment 18 (2005), paras. 22–28; General Comment 14 (2000), paras. 33–37; General Comment 12 (1999), para. 15. 10 Shue (1980), chapter 2; and Shue (1984), pp. 83–95. 11 Most prominently, see Eide’s Report on the Right to Food to the (former) UN SubCommission as a Special Rapporteur, E/CN.4/Sub.2/1987/23, 7 July 1987; and the updated version of this report, E/CN.4/Sub.2/1999/12, 28 June 1999. Others categorised obligations into four or even five different types; see e.g. van Hoof (1984), p. 106; for a more comprehensive overview of the different typologies see Sepulveda (2003), chapters IV–V. 12 E.g. CESCR, General Comment 15 (2002), para. 21; General Comment 14 (2000), para. 33; General Comment 12 (1999), para. 15; Eide (1989), p. 37; further analysed by Sepulveda (2003), chapter V; and Ssenyonjo (2009), pp. 23–26. 13 Ibid.



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direct provision of certain goods and services. It is therefore frequently held that the obligation to fulfil incorporates obligations to facilitate and, if needed, to provide directly.14 The typology builds on the assumption that the obligation becomes ever more ‘positive’, pro-active and resourceintense as one moves along from the obligation to respect through the obligation to protect to the obligation to fulfil. The categorisation into three-fold obligations was introduced to show that both ‘positive’ and ‘negative’ obligations flow from civil and political rights and from ESC rights.15 Pointing to the similarities of obligations flowing from all human rights helped to confirm the conception of social and economic rights as legal rights.16 It thereby contributed to arriving at a more integrated understanding of human rights as interdependent and indivisible, mending to some extent the artificial separation of human rights17 that was caused by Cold War politics and ideologies.18 The tripartite typology has also been appealing to ‘both advocates and many states alike’ because it allows for ‘communicating the wide-ranging obligations of states in a straight-forward format’.19 Questions have, however, been raised concerning both the utility of the tripartite typology for advancing the conceptual clarification of ESC rights, and the debate about the extent to which these rights are justiciable.20 For example, the typology neither establishes criteria for the evaluation of steps taken by states towards the progressive realisation of rights in accordance with maximum available resources. Nor does it touch upon the question of the scope of international obligations and responsibilities, 14 E.g. CESCR, General Comment 15 (2002), paras. 25–29; General Comment 14 (2000), paras. 36–37; General Comment 12 (1999), para. 15; Eide, ibid.; Ssenyonjo, ibid.; and analysed further by Sepulveda, ibid. 15 Craven (2005), p. 31. 16 Recent collections of ESC rights jurisprudence from different parts of the world is the best proof for the validity of the conception of ESC rights as legal rights, see e.g. Langford (ed.) (2008); Gauri and Brinks (eds.) (2008); and Gargarella, Domingo and Roux (eds.) (2006). 17 In this context, Scheinin observed in 2005 that ‘the old counter-argument related to the alleged ‘different nature’ of these [ESC] rights, as compared to more traditional human rights generally described as civil and political rights, is perhaps not yet dead and buried, but nevertheless appears today as a quiet echo from the past’ (Scheinin (2005a), p. 17). 18 For more detailed discussion see e.g. Craven (1995), chapter I; Arambulo, pp. 16–20; Eide (2001 a), pp. 10–17. 19 Langford and King (2008), pp. 484–85; similarly Tinta (2007), p. 433; and Sepulveda (2003), p. 170. 20 E.g., Koch (2009), chapter 2; Langford and King (2008), pp. 485–486; and Craven (2005), pp. 30–36, questioning the usefulness of the tripartite typology in the on-going justiciability debate.

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i.e. the question of where national obligations end and international obligations begin for implementing ESC rights in countries that obliviously lack sufficient resources. Moreover, it has been suggested that the typology does not provide a particularly nuanced portrayal of human rights obligations—neither of those obligations flowing from ESC rights, nor of those flowing from civil and political rights. For instance, Koch has argued that states’ obligations under the ICESCR in fact evade any clear categorisation and that therefore there is no point in using the typology of respect, protect or fulfil in order to determine states’ obligations with respect to the implementation of ESC rights.21 She shows that many obligations to respect can be as ‘positive’ and resource-intensive as those that are regularly categorised as obligations to protect or fulfil. And, analysing the CESCR’s general comments, she shows that the Committee is inconsistent in its choices when assigning measures that states are required to take for the implementation of a particular right to one of the three categories of obligations.22 Based on those observations, Koch questions the existence of any purely ‘negative’ respect-bound obligations. It is difficult to think of any obligation not to interfere with an individual’s right that does not require some ‘positive’ action, and therefore will have budgetary implications. To give but one example, Koch points out that even though the CESCR is cautious to formulate the obligations under the heading respect in negative terms, such as requiring states to ‘refrain[ing] from denying or limiting equal access to … health care services’23 under the right to health, it seems to imply that this obligation equals upholding existing access to health care facilities, and guaranteeing that this access is given to everyone equally without discrimination. This obligation is clearly ‘positive’, since it requires states to take action, and its implementation is resource dependent.24 In more general terms, Koch strengthens her argument by highlighting that the implementation of every human right requires states to create and maintain institutional machinery that promotes rights, monitors their realisation, and provides necessary services to satisfy rights. 21 Koch (2009), ibid.; see also Langford and King (2008), p. 486. 22 See examples given by Koch (2005), pp. 88–91; and Langford who identifies at least two measures (the removal of legislative protection that requires the government to respect social rights; and the removal of government programmes that enable individuals or groups to realise their social rights) that can be classified as violations of all three obligations to respect, protect and fulfil (Langford (2008), p. 16). 23 CESCR, General Comment 14 (2000), para. 34. 24 Koch (2005), pp. 88–89.



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The existence of such institutional machinery is a precondition for the implementation of all types of human rights obligations, even if states’ obligations comprise ensuring non-interference with the enjoyment of a particular right; and the creation and maintenance of institutional machinery inevitably demands resources.25 Against this background, Koch has observed that the tripartite typology can create the misleading assumption that implementing some components of human rights obligations is cost-free and does not require any state action whereas others are expensive and require considerable state activity. This might also be a reason why international bodies other than the CESCR supervising the implementation of ESC rights as well as civil and political rights have not adopted the tripartite typology in their analyses of states’ obligations under, for example, the European Social Charter/Revised European Social Charter (ESC/RESC) or the ECHR. For the context of this work, relying on the tripartite typology may bring about another difficulty: when discussing the relationship between IHL and ESC rights in later chapters, it can create confusion as to the meaning of certain terms. For instance, in its General Comment 15 on the Right to Water the CESCR cites states’ IHL obligations on the ‘protection of objects indispensable for survival of the civilian population, including drinking water installations and supplies and irrigation works, protection of the natural environment against widespread, long-term and severe damage and ensuring that civilians, internees and prisoners have access to adequate water’26 as part of the obligation to respect the right to water. This seems to suggest that strangely the CESCR regards all IHL obligations that fall under the IHL notion of ‘protection’ as potentially ‘negative’, despite the fact that their implementation surely requires ‘positive’ action under IHL.27 Moreover, it shows that there is a different meaning of the obligation to ‘protect’ in IHL, which requires states to take a variety of measures to ensure the effective implementation of IHL, compared to IHRL on the other hand, under which the obligation to protect requires states to ensure that third parties do not violate human rights.

25 Koch (2009), pp. 17–18; also Holmes and Sunstein (1999), chapter I: ‘All Rights Are Positive’. 26 CESCR, General Comment 15 (2002), para. 22, falling under the heading ‘Obligations to Respect’ (emphasis added). 27 E.g. IHL rules on the ‘protection’ of wounded and sick, which includes obligations to actively search and collect the wounded and sick and to provide them with medical treatment; see further chapter VII, part 4.

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For these reasons, there are calls to refocus the debate on the conceptual clarification of ESC rights by concentrating on ‘steps’ to be taken by states to realise rights progressively,28 rather than categorising the measures to be taken as respect, protect or fulfil obligations.29 With this in mind, this book does not use the tripartite typology. At times, however, obligations flowing from ESC rights are referred to as more ‘positive’ or more ‘negative’ to indicate that there are indeed certain rights/obligations the implementation of which requires more resources and a more pro-active state than others.30 Moreover, the general comments of the CESCR will be used throughout the work. It is beyond doubt that they are of great value in explaining states’ overall obligations under the ICESCR, despite the fact that categorising obligations as respect, protect or fulfil seems dispensable today.31 4. The Minimum Core Approach: Minimum Core Obligations and Non-Core Obligations 4.1. The Rationale and Potential of the Minimum Core Approach Unlike the tripartite typology, the minimum core approach holds some promise to give the notion of progressive realisation a clearer direction and to evaluate the steps states have taken towards the progressive rea­ lisation of particular rights. This includes situations of armed conflict, since the CESCR has held several times that minimum core rights/obligations continue to apply in situations of armed conflict, emergency and 28 Koch (2009), p. 27; and Pieterse (2007), p. 822, though he does not exclusively refer to the analytical framework of respect, protect and fulfil. 29 In this context, see also Langford’s and King’s observation that if the CESCR would start trying to mainstream the tripartite classification into its concluding observations, it might end up arguing with states over this classification rather than the actual practical steps a particular state should take to implement ESC rights (Langford and King (2008), p. 486 (and related footnotes)). 30 See the finding by Langford (2008), p. 31, holding that ‘of course it is possible to contend that economic, social and cultural rights require greater public investment than civil and political rights but it is a matter of degree rather than substance’; see also Koch (2009), p. 20. 31 Koch (2009), pp. 27–28, recalling that Shue, the ‘father’ of the tripartite typology, pointed out in 1996 that ‘[t]ypologies are at best abstract instruments for temporarily fending off the complexities of concrete reality that threaten to overwhelm our circuits. Be they dichotomous or trichotomous, typologies are ladders to be climbed and left behind and not monuments to be caressed or polished’.



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natural disaster.32 The Committee has indeed adopted the minimum core approach to counter the tendency of some states to escape any meaningful obligation under the ICESCR by pointing to the notion of ‘progressive realisation’ and resource constraints.33 In its General Comment 3, the Committee set out the basic features of this approach. It pronounced that minimum core obligations to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every State party. Thus, for example, a State party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter or housing, or of the most basic form of education is, prima facie, failing to discharge its obligations under the Covenant. If the Covenant were to be read in such a way as not to establish such a minimum core obligation, it would be largely deprived of its raison d’etre.34

Thus, as noted by Craven,35 the rationale of the minimum core approach seems relatively simple: establishing a minimum quantitative and qualitative threshold of enjoyment of each ESC right that should be guaranteed to everyone in all circumstance as a matter of top priority.36 The minimum core of each ESC right is linked to vital interests of individuals that are often connected to their survival.37 To name a few examples, the minimum core content of the right to food is the right to be free from hunger, aiming to prevent starvation;38 the right to access the most basic forms of education is the minimum core of the right to education, to ensure that individuals can function in society;39 and the right to access essential (primary) health care that addresses the most prevalent health problems 32 CESCR, Statement on Poverty and the ICESCR, E/C.12/2001/10, 10 May 2001, para. 18; see also, CESCR, General Comment 12 (1999), para. 6; General Comment 15 (2002), para. 40; General Comment 14 (2000), para. 47; and chapter V, section 2.2.4, ns. 59–61 in particular. 33 CESCR, General Comment 3 (1990), para. 9. 34 Ibid., para. 10. 35 Craven (2005), p. 39. 36 See CESCR, General Comment 3 (1990), para. 10; CESCR, General Comment 15 (2002), para. 6; General Comment 19 (2008), para. 60; General Comment 14 (2000), para. 47; and General Comment 12 (1999), para. 17. 37 In this context, see the philosophical arguments brought forward by e.g. Bilchitz (2007) and Pogge (2002), linking minimum core obligations to the essential human interest to survive and to enjoy a minimum level of well-being which are essential preconditions for human beings to have positive experiences and to pursue their purposes (Bilchitz) and to conduct a flourishing life (Pogge). 38 CESCR, General Comment 3 (1990), para. 10; see also Künnemann (2002), p. 171. 39 CESCR, General Comment 13 (1999), para. 57.

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in a society can be identified as the minimum core right to health.40 Once the minimum essential level is ensured, states have to move as expeditiously as possible to implement their non-core obligations. As mentioned, the minimum core approach not only promises to ‘provide economic and social rights with determinacy and certainty’41—at least to some degree—but also to direct resources to where they are most needed, i.e. towards the implementation of ESC rights at a minimum level, benefitting those who have nothing or very little42—in the words of the Committee to ‘marginalized and disadvantaged groups and individuals’.43 It has also been used to evaluate states’ individual and collective activities outside their own borders, for example in global trade and development policies44 as well as security regimes.45 In its Statement on Poverty and the ICESCR the CESCR stated that minimum ‘core obligations give rise to national responsibilities for all States and international responsibilities for developed States, as well as others that are “in a position to assist”’.46 Thus, the minimum core approach promises to delineate national and international responsibilities for the implementation of ESC rights. Lastly, the minimum core approach has become an important component in the debate about the justiciability of ESC rights. Based on the assumption that minimum core obligations/rights shall be guaranteed to everyone at all times as a matter of priority, and that non-implementation constitutes a prima facie violation of the ICESCR,47 individuals who do not enjoy their minimum core rights should, at the least, be entitled to claim these rights before national and/or international courts/commissions.48 Accordingly, the minimum core approach holds some promise to help

40 CESCR, General Comment 14 (2000), paras. 43–44. 41 Van Bueren (1999), p. 57; see also Wesson (2004), pp. 299–300; and many of the sources cited infra, n.49. 42 E.g. Wesson, ibid.; Scott and Macklem (1992–93), p. 77; Bilchitz (2007), p. 189; and Liebenberg (2002), p. 174. 43 CESCR, General Comment 19 (2008), para. 59(e); General Comment 15 (2002), paras. 37(b) and (f); General Comment 14 (2000), paras. 43(a) and (f); and General Comment 12 (1999), para. 28. 44 E.g. CESCR, General Comment 19 (2008), para. 61; General Comment 18 (2005), para. 30; General Comment 15 (2002), para. 38; General Comment 14 (2000), para. 45; and CESCR, Statement on Poverty and the ICESCR, E/C.12/2001/10, 10 May 2001, paras. 16–17. 45 E.g. CESCR, General Comment 8 (1997), para. 7; General Comment 15 (2002), para. 32; and General Comment 12 (1999), para. 37. 46 CESCR, Statement on Poverty and the ICESCR, E/C.12/2001/10, 10 May 2001, para. 16. 47 CESCR General Comment 3 (1990), para. 10. 48 E.g. CESCR, General Comment 12 (1999), para. 34; General Comment 14 (2000), para. 60; General Comment 18 (2005), para. 49; and General Comment 15 (2002), para. 57.



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converting programmatic socio-economic rights into justiciable individual entitlements.49 However, as will be shown in the following sections, the utility of the concept is questioned by some,50 and the CESCR did not articulate its understanding of the minimum core approach very clearly. Some fundamental conceptual issues related to it have not been addressed sufficiently. These ambiguities will therefore be discussed and the criticism of the approach will be taken up, aiming to arrive at an understanding of the minimum core approach that can be used in this work: as a framework that helps to determine the entitlements of individuals under the right to health and corresponding state obligations in situations of armed conflict, providing some determinacy to the notion of progressive realisation in this particular context. This already indicates that even if the minimum core of different ESC rights cannot be defined clearly enough to cover all particularities of different cases, the present author thinks that in general terms it is reasonable to assume the existence of a minimum core when discussing progressive realisation. If this were not the case, individuals living in dire economic and social circumstances would have no right to access certain goods or services to ensure minimum conditions of dignified life immediately or in the very near future.51 The minimum core approach implies that, concerning the minimum core, individuals have a right to something more than a ‘reasonable policy’ that only aims to satisfy urgent needs underlying the minimum core on an unspecified timescale. Such policy would give states an excuse to postpone the implementation of ESC rights for an indefinite period.52 Assuming the existence of a minimum core of 49 This is argued by many scholars who advocate the minimum core approach, e.g. Bilchitz (2002), p. 491; De Vos (2002), pp. 24–26; Chapman (2002a), p. 37; Liebenberg (2002), pp. 175 and 188; Scott and Macklem (1992–93), p. 77; Leckie (1998), pp. 101–102; and earlier, Alston (1987), p. 353. 50 E.g. Lehmann (2006); Kende (2003–04); and Porter (2005), pp. 48–55. 51 This does not imply that everyone necessarily has a right to cost-free services and goods provided by the state. See infra, section 4.4., including n. 152. 52 I.e. the minimum core approach would contribute to moving away from a mere ‘meta-rights approach’ as it was developed by Amartya Sen. Sen argued that when a certain right x cannot be implemented immediately due to resource constraints, individuals would still have a right ‘to have policies p(x) that genuinely pursue the objective of making the right x realisable’ (Sen (1984), p. 70). Moreover, it would be more than what the reasonableness approach of the South African Constitutional Court promises: a right to have measures in place that address certain socio-economic concerns and to have such measures evaluated for their adherence to principles of good governance. For this reason, many advocates of the minimum core approach writing about the South African context use the minimum core approach to criticise the Constitutional Court’s reasonableness approach

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each ESC right seems to be in line with the emphasis on teleological methods in the interpretation of IHRL that aim to ‘protect rights not merely theoretically, but also in fact’;53 and the CESCR’s remark that without a minimum core the ICESCR would be deprived of its raison d’etre. 4.2. Open Conceptual Questions on the Minimum Core Approach The main open conceptual questions on the minimum core approach are about the actual feasibility of determining a minimum core content of each of the ESC rights, and at what level this content should be defined— the national or the international.54 These issues are related to the question of whether minimum core rights are subject to progressive realisation in accordance with resources available to a particular state, or whether it is assumed that they are per se affordable for all countries and therefore not conditional on ‘progressive realisation’. It is also unclear whether limitations to or retrogressive measures touching upon minimum core rights are permitted.55 The Committee’s position on many of these questions is unclear. For example, in one statement the CESCR has held that ‘any assessment as to whether a state has discharged its minimum core obligations must take into account the resource constraints applying within a country concerned’.56 This is only explicable if one assumes that states are only in breach of their minimum core obligations when they fail to take measures which could be expected given their available resources, and that therefore minimum core rights/obligations are subject to progressive realisation. Additionally, the Committee in its reporting guidelines requires states to set out national benchmarks to measure their progress toward ESC rights.57 And, it hardly ever finds outright violations of minimum core to litigation. See for instance Bilchitz (2003), p. 6; Coomans (2005), pp. 190–191; Liebenberg (2001), p. 255; and Pieterse (2003), p. 43. 53 ECSR, Complaint 1/1998, International Commission of Jurists v Portugal, Decision on the Merits, 9 September 1999, para. 32; see also chapter I, part 2 and chapter II, section 3.4. 54 See e.g. Lehmann (2006), p. 183; and Ssenyonjo (2009), p. 66. 55 See further chapter V, sections 2.2.4 and 2.3.2. 56 CESCR, General Comment 3 (1990), para. 10. 57 E.g. the CESCR’s reporting guidelines require states to indicate whether they have ‘defined a national poverty line, and on what basis it is calculated’. In the absence of a poverty line, the Committee wishes to know ‘what mechanisms are used for measuring and monitoring the incidence and depth of poverty’ (CESCR, Guidelines on Treaty-specific Documents, E/C.12/2008/2 (2009), paras. 3(b) and 42); see also General Comment 12 (1999), para. 21.



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rights/obligations in its concluding observations, even in states where people starve and lack the most basic form of health care; nor does it rigorously ask states to prove that they did all they could, as a matter of priority, to remedy the situation.58 This seems to indicate that minimum core obligations are state-specific and their scope contingent upon available resources. Conversely, other statements of the Committee suggest that it understands the minimum core as an absolute and universal bottom-line, below which no individual should find him/herself, and which must be implemented regardless of a state party’s level of economic development. For instance, in its General Comment on the Right to Health, it held that ‘a state party cannot, under any circumstances whatsoever, justify its noncompliance with the core obligations…’.59 Scholars who discuss the minimum core approach also bring forward arguments for either defining state-specific minimum cores that are subject to progressive realisation; or universally-defined minimum cores the implementation of which is presumed to be per se affordable for all states, even low-income countries. The main arguments of those supporting a nationally-defined minimum core are first that it is unrealistic to require all states to implement the same minimum core obligations, given the vast differences in levels of development around the world.60 Low-income countries may not command sufficient resources to satisfy minimum essential levels of each of the ESC rights as defined in the CESCR general comments for everyone under their jurisdiction;61 for high-income countries, a universally-defined minimum core may become a reason for inertia, as these countries could in fact implement more far-reaching obligations.62 58 E.g. CESCR, Concluding Observations—Sudan, E/C.12/1/Add.48 (2000), para. 25; similarly, Democratic People’s Republic of Korea, E/C.12/1/Add.95 (2003); notable exceptions are the recent Concluding Observations—Democratic Republic of the Congo, E/C.12/ COD/CO/4 (2009), para. 16, where the Committee refers to ‘serious breaches’ of Art. 2(1) ICESCR; and Sri Lanka, E/C.12/LKA/CO/2–4 (2010), para. 28. 59 CESCR, General Comment 14 (2000), paras. 47–48 (emphasis added); General Comment 12 (1999), para. 6; General Comment 15 (2002), paras. 40, 42 and 44(c); and General Comment 19 (2008), para. 65. 60 Craven (1995), p. 141; and Scott and Alston (2000), p. 250. 61 The South African Constitutional Court has rejected the minimum core approach on that basis. It found that it would be impossible for the state to provide core services immediately, e.g. in Minister of Health v Treatment Action Campaign (TAC), Judgment of 5 July 2002, paras. 34–37; see also Kende (2004), p. 622; and Chapman and Russell (2002), p. 10 who also recognise this danger. 62 Noted e.g. by van Bueren (1999), p. 59; Chapman and Russel (2002), p. 9; Ssenyonjo (2009), pp. 66–67; and Craven (1995), p. 144 who voiced the concern that when the CESCR

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Second, a state-specific minimum core is required because a universally-defined minimum core would inevitably be abstract, inflexible and a-contextual, dividing ESC rights theory from the real-life experience of individuals whose ESC rights are violated or remain unimplemented. This may result in the exclusion of some individuals from ESC rights protection whose contextual experiences did not reflect a universal standard.63 Third, more support for the definition of country-specific minimum core rights/obligations comes from doubts over whether it is at all possible to determine truly universal minimum core rights and obligations, given that no convincing criteria have been developed that might distinguish elements of rights/obligations belonging to the minimum core from those belonging to the non-core. Young’s finding from her comprehensive review of shared values or needs that have been suggested as a basis for the minimum core is the following: ‘[t]here are no axioms that can deliver an uncontested minimum core’.64 Referring to various attempts to determine an essential minimum core through normative argument, she concludes that ‘the minimum core will look different to an advocate of human flourishing in comparison with an advocate of basic survival, just as the core will look different in various instantiations of both survival and dignity’.65 This difficulty is also obvious from the challenges to establish numerical formulas for measuring the implementation of universally-defined minimum thresholds in all countries.66 Without such formulas, it might be difficult for the CESCR to evaluate states’ performance in implementing global minimum core obligations. Others argue that defining a minimum core of each of the ESC rights would only make sense if it were defined as a universal, immutable focuses too much on minimum core obligations, it will necessarily direct its attention to developing countries, which might open it to criticism. 63 Porter (2005), p. 52. While Porter points to this danger in particular in the context of focusing adjudication of ESC rights on a universally-defined minimum core, it might be equally relevant for the development of policies that aim at the implementation of minimum core obligations; see also Lehmann (2006), pp. 188–189; this difficulty is also recognised by Liebenberg (2006), p. 31; and Pieterse (2006), p. 491. 64 Young (2008), p. 138. She reviews different needs-based (life, survival and basic needs) and value-based (dignity, equality and freedom) approaches that aim to determine the content of a universal minimum core. See also Kende (2003–04), p. 624; and Lehmann (2006), p. 191. 65 Young, ibid.; even Bilchitz (2007), p. 224, a strong advocate of a principled universal minimum core approach based on essential human interests (above all the interest to survive), submits that the survival interest is not suitable as a basis for determining a universal minimum core of the right to health. 66 See OHCHR Report on Indicators for Promoting and Monitoring the Implementation of Human Rights, HRI/MC/2008/3, 6 June 2008, para. 16; see also infra, n.103.



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standard that has to be implemented in all states, independent of their level of development.67 First, they hold that only a universal standard can fulfil the promise to bring a degree of determinacy in the notion of progressive realisation.68 There would be no difference between an obligation to define a minimum core nationally and the general obligation under Art. 2(1) ICESCR to progressively realise ESC rights, as the scope of both would be dependent on available resources. Second, most elements of minimum core obligations defined by the CESCR in its general comments can be linked to survival interests of individuals that exist regardless of the availability of resources,69 fulfilment of which is an essential precondition for human existence and development.70 The implementation of these minimum obligations should undoubtedly be part of fundamental governmental functions in all countries,71 and states—even poor states—‘have to begin somewhere’.72 Essential provision for the most disadvantaged groups who cannot provide for themselves under the minimum core approach might be a good starting point.73 It is thus justified to assume that the 67 E.g. van Bueren (2002), p. 184; Russell (2002), p. 15; Coomans (2002b), p. 167; Limburg Principles (1986), para. 25; Chapman and Russell (2002), p. 14; Bilchitz (2003), pp. 11–18; Bilchitz (2007), chapter 6; Arambulo (1999), pp. 130–135; Scott and Alston (2000), p. 250; Leckie (1998), pp. 201–202; White (2007), pp. 100–103; Scott and Macklem (1992–93), p. 77; Ssenyonjo (2009), p. 66; and Toebes (1999), p. 224. 68 Among others, van Bueren (2002), pp. 184–185; and Wesson (2004), p. 299. 69 E.g. Bilchitz (2007), p. 222. 70 This has been pointed out convincingly in a decision of the Swiss Federal Court, V v Einwohnergemeinde X und Regierungsrat des Kantons Bern, BGE/ATF 121 I 367, 27 October 1995, Erwägung 2, para. b): „Die Sicherung elementarer menschlicher Bedürfnisse wie Nahrung, Kleidung und Obdach ist die Bedingung menschlicher Existenz und Entfaltung überhaupt.“ (Satisfying elementary human needs, such as food, clothing and shelter is a precondition for human existence and development. (author’s translation)); see also Liebenberg (2005), p. 22; Bilchitz (2002), pp. 490–492; and Bilchitz (2007), p. 187. 71 Noted by Chapman and Russell (2002), pp. 11–12; see also Paschim Banga Khet Majoor Samity v State of West Bengal, Supreme Court of India, para. 16, reflecting the opinion that what is constitutionally necessary (in this case, the provision of emergency health services to the Indian population) has to be done, regardless of limited resources. Similarly, V v Einwohnergemeinde X und Regierungsrat des Kantons Bern, BGE/ATF 121 I 367, Federal Court of Switzerland, 27 October 1995, Erwägung 2, para. b). 72 As pointed out by Dankwa, Professor of Law at the University of Ghana and member of the AComHPR, in COHRE (2003), p. 119; similarly, Wesson (2004), p. 299. 73 That this view is shared by some governments is clear from reports of the Openended Working Group to Consider Options Regarding the Elaboration of an Optional Protocol to the ICESCR. Some delegations participating in the consultations were of the opinion that allocating sufficient resources to the implementation of minimum core obligations is an immediate obligation on states under the ICESCR; see Report of the Openended Working Group, first session, E/CN.4/2004/44, 15 March 2004, para. 56. The report does not, however, reveal how many delegations shared this opinion.

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implementation of universal minimum core obligations is affordable even for low-income countries, if necessary through international cooperation and assistance.74 Third and related to the foregoing point, only a universally-defined minimum core holds promise for delineating national and international responsibilities for the implementation of ESC rights. Referring to international development policies aimed at eradicating poverty, the CESCR held that ‘grouped together, the core obligations establish an international minimum threshold that all developmental policies should be designed to respect. … If a national or international anti-poverty strategy does not reflect this minimum threshold, it is inconsistent with the legally binding obligations of the State party’.75 White’s finding that the UN Security Council is bound to respect minimum core ESC rights in all its actions, for example when designing and implementing sanctions regimes, supports the universal understanding of the minimum core. He holds that ‘the effect of Security Council resolutions is not to free the target state, other member states, or itself from compliance with basic economic and social rights’.76 4.3. In Search of a Reasonable Relationship Between a Principled Universal Minimum Core and a Pragmatic National Minimum Threshold From the summary of the main arguments in the previous section, it is clear that both options—to define minimum core rights/obligations nationally or internationally—entail problems. Identifying resource-dependent country-specific minimum cores subject to progressive realisation will largely prevent the minimum core approach from achieving its original aim: to provide a degree of determinacy to states’ general obligation under Art. 2(1) ICESCR with the establishment of a universal standard against which states’ performance can be measured, independent of the level of development of a country. An obligation to define a national minimum core in accordance with available resources and establishing national benchmarks seems not to differ from the general obligations under Art. 2(1) ICESCR to progressively realise ESC rights.

74 See e.g. Ssenyonjo (2009), p. 68. 75 CESCR, Statement on Poverty and the ICESCR, E/C.12/2001/10, 10 May 2001, para. 17. 76 White (2007), p. 102 (emphasis added); also Young (2008), pp. 122–123.



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Seeking an internationally-defined minimum core is problematic as well, because it seems illusory to expect that a detailed minimum core of ESC rights can be defined that resonates with the experiences of rightsclaimants around the world, given the considerable economic, social, cultural and political differences between states. In particular, it seems problematic to assume that implementing an internationally-defined minimum core can be considered affordable for all countries, especially if no answer is found as to how exactly to delineate responsibilities between national and international actors for the implementation of a universal minimum core in low-income countries. Above all, the implementation of the minimum core of the right to health as defined by the CESCR in its General Comment 14 seems unaffordable for many low-income states, as it comprises the provision of primary health care services, minimum essential foodstuffs, safe drinking water, adequate sanitation, essential drugs (as defined by the WHO), reproductive and child health care, immunisation against major infectious diseases and basic health education.77 Against this background, the following section suggests relying on an internationally-defined principled minimum core that interacts with a pragmatic minimum threshold to be defined at the national level, along the lines of a submission made by Bilchitz.78 It can also be read into various statements of the CESCR.79 The internationally-defined minimum core would describe the ‘minimum essential levels of rights’ as set out in the more recent general comments of the CESCR. Basic resources would be required for their

77 CESCR, General Comment 14 (2000), paras. 43–44. 78 Bilchitz (2007), pp. 220–225. It must be observed that Bilchitz sees the necessity to establish a principled international minimum core generally and a pragmatic national minimum core only with regard to the right to health. His reason is the difficulty to use every individual’s fundamental ‘survival-interest’ as a basis to determine an international minimum content of the right to health that can be assumed affordable in all countries, given the very high costs of some specialised medical care. But the present author thinks that it is reasonable to define a principled international minimum core and a pragmatic national minimum core for all rights for the reasons given above and below. Suggestions similar to the one of Bilchitz have been made by Scott and Alston (2000), pp. 249–250. Yet, they understand the international minimum core as an ‘absolute bottom-line’ requirement, from where progressive realisation must start. In their understanding, states are first obliged to implement this universal ‘absolute bottom-line’ requirement, and second, they should develop their own (state-specific) relative minimum cores which would guide them in their implementation of ESC rights in their specific national contexts. See also Koch (2009), pp. 280–288; Pieterse (2006), p. 491; and Liebenberg (2005), p. 31. 79 See infra, ns. 83–86.

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implementation to allow individuals to be free from common threats to their survival, and there is a strong assumption that these resources are available in every state, if necessary through international cooperation and assistance. Linking ‘minimum essential levels of the rights’ as far as possible with international indicators, would contribute to evaluating state performance; this would help achieve the CESCR’s aim to remedy the tendency of states to escape meaningful obligations under the ICESCR by pointing to the notion of progressive realisation. It would also help to determine when high-income states are expected to offer assistance to low-income countries for the realisation of minimum core rights. At the same time, every state would be required to define a pragmatic minimum core at the national level, in accordance with available resources. It should be guided by the more vaguely formulated international minimum core, adapting it to the specific national context, thereby making it more concrete, including through the identification of national benchmarks. The resources and professional capacities available to a country would determine whether nationally- and internationally-defined minimum cores coincide. Where this is not yet the case, the international minimum core would help to highlight the high priority that must be given to implement the remaining aspects of that core, urged by the fundamental interests of individuals that underlie these cores. The more resource-intense the implementation of an international minimum core is, the harder it will be for low-income countries to match their nationallydefined minimum threshold with the international core. High-income countries whose national minimum core coincides with the international minimum core would be required to move further, towards the full noncore realisation of the respective rights.80 In this understanding, progressive realisation would not be something that builds upon or comes after the minimum core standard; it would instead begin with nothing, passes the national minimum threshold (that ideally equals the international standard) and proceeds with the realisation of non-core obligations until the right is fully realised. If a pragmatic national minimum core is below the principled international minimum core, states would have an urgent need to pursue the approximation to the international core, to secure a minimum level of well-being of individuals.

80 Further see infra, section 4.4.



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Finding a reasonable relationship between an internationally-defined principled minimum core and a pragmatic national minimum threshold would, on the one hand, promise that ESC rights have meaningful content despite the ‘mere’ requirement of the ‘progressive realisation’ of these rights. This would help to come to terms with the fact that the implementation of some components of ESC rights require considerable resources. On the other hand, such a relationship would recognise that identification of precise, objective minimum core rights/obligations at the international level is impossible, and that such specification has to take place nationally, considering various factors, including resource availability. Such an understanding would not contradict the wording of Art. 2(1) ICESCR, since complying with the obligation to progressively realise ESC rights in accordance with available resources is hardly thinkable without a domestic minimum standard to start from81 (even if this standard is not justiciable82). Some statements of the CESCR seem to endorse a ‘splitting’ of a pragmatic national minimum core from the principled international minimum core that it defines in its general comments. In its General Comment 19 the Committee first determines the minimum core of the right to social security as states’ obligation to ensure access to a social security scheme that provides a minimum essential level of benefits to all individuals and families that will enable them to acquire at least essential health care, basic shelter and housing, water and sanitation, foodstuffs, and the most basic forms of education.83

Importantly, it then goes on, suggesting that if a state party cannot provide this minimum level for all risks and contingencies within its maximum available resources, the Committee recommends that the State party, after a wide process of consultation, select a core group of social risks and contingencies.84 81 As noted by Koch (2009), p. 285. 82 As noted by Langford (2008), p. 21, in his comparative analysis: ‘in some jurisdictions the adjudication of minimum core rights is problematic, in particular if their implementation has (considerable) resource implications. Cases are frequently dismissed by reference to the doctrine of separation of powers. This is the case in particular in countries in which ESC rights are not enshrined in the constitution, but where certain elements of these rights are made justiciable through the adjudication of civil and political rights.’ The discussion about the possible conflict of ESC rights litigation with the doctrine of the separation of powers is on-going, see e.g. Kurland (1987); Sunstein (1993), rejecting the justiciability of ESC rights on this ground. Engaging with these arguments are, among others, Scott and Macklem (1992–93), p. 18; Koch (2009), chapter 10; Tveiten (2005), p. 163; King (2007); and Nolan, Porter and Langford (2007), pp. 10–14. 83 CESCR, General Comment 19 (2008), para. 59(a). 84 Ibid.

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General Comment 14 similarly first defines minimum core obligations under the right to health, and second adds ‘obligations of comparative priority’, also under the heading of ‘core obligations’.85 This seems to suggest that the Committee recognises that not all minimum core obligations can be implemented by all states immediately.86 4.3.1. The Principled International Minimum Core The internationally-defined principled minimum core would describe the ‘minimum essential levels’ of rights as set out in the more recent general comments in fairly general terms. As noted by Bilchitz, urgent individual interests, primarily the interest to survive, seem to guide these minimum essential levels, and their implementation should be high on the list of concerns that are to be addressed by governments.87 Resources would be required for their implementation. Based on the particular urgent need for their implementation to avoid widespread tragic consequences, there is a strong assumption that these resources are available in every state, if necessary through international cooperation. European regional human rights courts/commissions, like the ECtHR and ECSR seem to assume the obligation of states to protect a minimum core of socio-economic rights under their respective instruments, even if the content of this minimum core is not always well-defined. In her review of the protection of socio-economic demands in the ECtHR’s jurisprudence, Koch repeatedly observes that certain statements by the ECtHR can be interpreted as recognising the notion of a minimum core right to for example basic health services88 and social cash benefits.89

85 CESCR, General Comment 14 (2000), paras. 43–44. 86 The same can be read into the CESCR’s General Comment 3 (1990), para. 11, that ‘even where the available resources are demonstrably inadequate [to implement core obligations at once], the obligation remains for a State party to strive to ensure the widest possible enjoyment of the relevant rights under the prevailing circumstances’ (my emphasis). 87 Bilchitz (2007), p. 222; see also sources cited supra ns. 37 and 69–73. 88 Koch (2009), pp. 63–64, analysing inter alia ECtHR, Cyprus v Turkey (2001), para. 219; see also Harris et al (2009), pp. 46–47. 89 Koch (2009), chapter 8, referring to judgments where the ECtHR protected social cash benefits under Arts. 3, 6 or 8 ECHR as well as under the right to property in Art. 1 Protocol I to the ECHR; or at least where the ECtHR did not exclude that social cash benefits were protected if an individual’s ‘living conditions attained a minimum level of severity’. See also Clements and Simmons (2008), p. 426, concluding that ‘[I]n relation to complaints that disclose gross failures of the most basic socio-economic support, the Court’s [ECtHR] starting point is now an unequivocal acceptance of the view that the Convention protects a core irreducible set of such rights’.



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Likewise, the idea of protecting at least a minimum core of the rights set out in the ESC/RESC occurs in these instruments and is confirmed by ‘jurisprudence’ of the ECSR. For instance, by Art. 12(2) ESC state parties undertake ‘to maintain the social security system at a satisfactory level at least equal to that required for ratification of ILO Convention 102 Concerning Minimum Standards of Social Security’. Under Art. 12(2) RESC the minimum standard to be provided was raised to at least the standard prescribed by the European Code of Social Security.90 Arts. 12(3) ESC/RESC contain a continuing obligation of states ‘to endeavour to raise progressively the system of social security to a higher level’. Thus, the European minimum core of the right to social security91 has been defined in considerable detail in ILO Convention 102 and in the European Code on Social Security.92 Since both instruments also contain clauses on the scope of health care services to be provided to protected persons, they can equally be used to determine a minimum standard of the right to health at the European level.93 Similarly, in its decision European Roma Rights Centre v Bulgaria,94 the ECSR held that under Art. 13(1) ESC/RESC states were required ‘to guarantee minimum income and social assistance for persons without adequate resources’ consistent with human dignity to combat social exclusion. 90 Art. 12(2) RESC reads: ‘With a view to ensuring the effective exercise of the right to social security, the Parties undertake: … (2) to maintain the social security system at a satisfactory level at least equal to that necessary for the ratification of the European Code of Social Security;’ The European Code of Social Security is modelled on ILO Convention 102 but provides higher benefit levels. It also requires states to accept more parts of the Code for its valid ratification (ILO Convention requires the acceptance of 3 parts, the Code requires 6 parts). See also Explanatory Report on the Revised European Social Charter (1996), ETS No 163, para. 58. 91 It can also be assumed that the CESCR regards the standards set in ILO Convention 102 as the international minimum core of the right to social security, as it regularly recommends states to ratify this Convention, see e.g. CESCR, Concluding Observations— Kazakhstan, E/C.12/KAZ/CO/1 (2010), para. 23; Australia, E/C.12/AUS/CO/4 (2009), para. 20; and Nicaragua, E/C.12/NIC/CO/4 (2008), para. 18. 92 The instruments, however, give states flexibility in choosing the means of implementation. Objectives set out in ILO Convention 102 and the European Code on Social Security can be reached through e.g. ‘universal schemes; social insurance schemes with earnings related or flat rate components or both; or social assistance schemes’ (ILO Commentary on Convention 102). 93 Arts. 7–18 ILO Convention 102 and Arts. 7–18 European Code on Social Security. 94 ECSR, Complaint 48/2008, European Roma Rights Centre (ERRC) v Bulgaria, Decision on the Merits, 18 February 2009, paras. 37–38; see also Decision on Complaint 15/2003, European Roma Rights Centre (ERRC) v Greece, para. 42: ‘a significant number of Roma are living in conditions that fail to meet minimum standards’ in Greece ‘in breach of the obligation to promote the right of families to adequate housing laid down in Article 16’ (emphasis added).

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The interplay between the international minimum core and a pragmatic nationally-defined minimum threshold might have four different functions. First, reference to the international principled minimum core will prevent arbitrariness in establishing national pragmatic minimum cores, guiding the priorities of national legal and other measures for the implementation of ESC rights to the benefit of those who are in most urgent need. If a nationally-defined minimum core is below the internationally-defined minimum core, this would be a sign that the government concerned must intensify its efforts to first comply with its nationally-defined minimum core, and afterwards, as expeditiously as possible, raise its national minimum core to a level that coincides with the international minimum core.95 This does not mean that the value of general comments, setting out international minimum core rights/obligations, should be overstated. As mentioned, it is illusory to expect the CESCR to define minimum core rights in full detail—or to give exhaustive guidance on their implementation. The CESCR could neither cover the experiences of all individuals whose ESC rights are not met,96 nor the political, economic, cultural, social and other characteristics of every country. For example, it has been observed that neither the principled minimum core right to health defined in General Comment 14, nor other sections of this Comment clearly acknowledge HIV/AIDS or set out an explicit strategy of how to address it. Addressing the HIV/AIDS epidemic is, however, an indisputable priority in for example the South African public health strategy.97 Yet, the Committee’s experience examining states’ reports provides it with an overview of states’ efforts to implement ESC rights in varying situations, including through defining and implementing national minimum core rights/obligations.98 This puts the Committee in a position to draw comparative conclusions on the likely content of minimum core rights and obligations that flow into its opinions expressed on the international 95 In accordance with the CESCR’s statements supra, ns. 83–86. For an example of how this could work in practical terms for the right to social security in the South African context, see Liebenberg (2006), pp. 32–33. 96 This is reflected in the ‘jurisprudence’ of the ECSR, in e.g. Complaint 15/2003, European Roma Rights Centre (ERRC) v Greece, Decision on the Merits, 8 December 2003, it pointed out that ‘the implementation of Article 16 [ESC/RESC] as regards nomadic groups including itinerant Roma, implies that adequate stopping places be provided’ (para. 25). It held that human differences should be appropriately accommodated in the measures taken towards the implementation of the ESC/RESC (para. 21). 97 Pillay (2002), p. 68. 98 On various national jurisdictions that seem to have adopted national minimum cores see infra, section 4.3.2.



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core content of different rights in its general comments.99 The fact that many general comments are based on state practice enhances their legitimacy and practicality as guidelines,100 which in turn increases their potential to generate further good practice at national level.101 With regard to some rights, global indicators can be developed that offer the Committee a comparative value to assess national situations expressed in definitions and measuring methodologies applied at the national level. At the regional European level this has been possible through a numerical formula determining, for example, a (European) ‘decency threshold’ that takes into account the varying income levels in the Council of Europe member states. Under Art. 4(1) ESC/RESC workers have the right to a ‘remuneration such as will give them and their families a decent standard of living’ which can be described as the minimum core of Art. 4 ESC/RESC—the right to fair remuneration. In interpreting Art.  4(1) ESC/RESC, the ECSR has ruled that if wages in a particular European country are below the level of 60 per cent of the average national wage, and where this level is also below the national poverty line, the ‘decency threshold’ is not met and the respective state is in violation of Art. 4(1).102 However, it may not be possible to establish such indicators for measuring compliance with all internationally-defined minimum core rights that fairly reflect the different income levels in countries around the world. In these cases, the establishment of national indicators and benchmarks may be more important, as part of defining a pragmatic national minimum core.103

  99 Its unique overview of ESC rights implementation in different countries around the world was also recognised by states, giving the CESCR a mandate to review individual complaints under the new Optional Protocol to the ICESCR; see Report of the Open-ended Working Group to Consider Options Regarding the Elaboration of an Optional Protocol to the ICESCR on its Third Session, E/CN.4/2006/47, 14 March 2006, para. 91. 100 The important role of IHRL in guiding the interpretation of ESC rights enshrined in national law is e.g. recognised in the South African Constitution (section 39(1) and section 233); see also Russell (2002), p. 14; and Pillay (2002), p. 69. 101 See also chapter I, part 2 on the status of UN treaty body documents. 102 Analysed by Harris and Darcy (2001), pp. 74–75; and Khaliq and Churchill (2008), p. 434. Similarly, see the ECSR, Complaint 33/2006, International Movement ATD Fourth World v France, Decision on the Merits, 5 December 2007, para. 168, holding with regard to national and regional indicators to measure states’ compliance with Art. 30 RESC: ‘In assessing compliance with the Charter, the Committee systematically reviews the definitions and measuring methodologies applied at the national level and the main data consequently made available. Also, the at-risk-of-poverty rate before and after social transfers (Eurostat), is used as a comparative value to assess national situations.’ 103 Without going into detail of the on-going debate on indicators and benchmarks, this is also clear from the OHCHR, Report on Benchmarks and Indicators for Promoting and

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Second, defining universal minimum core rights/obligations can potentially guide the ‘international community’ and ‘states in the position to help’ as to when their ‘duty’ to offer assistance takes effect: when international minimum core rights, as defined by the CESCR, of ‘any significant number of individuals’104 are not implemented in another country. In this role, the international minimum core would make ESC rights implementation more realistic, given the numerous low-income countries that lack sufficient resources for implementing minimum core rights defined in the CESCR’s general comments.105 Moreover, this recognises that some problems with the implementation of international minimum core obligations are not only problems related to resources allocation within a state, but also among states. Clearly though, international minimum cores as currently defined in the CESCR’s general comments do not answer all remaining questions on the scope of states’ international obligations to assist in the implementation of minimum core rights in other countries. It is not clear precisely where national obligations end and international obligations begin; nor is it obvious what criteria high-income countries should apply when making decisions about which low-income countries will be offered assistance.106 While it might be clear in a situation of mass displacement because of armed conflicts or natural disaster that an ‘international duty’ is triggered, in more stable situations the question of what constitutes ‘a significant number’ of individuals not having access to for instance essential food and primary health care remains unanswered. Likewise, more work needs to be done to establish effective accountability mechanisms, especially Monitoring the Implementation of Human Rights, HRI/MC/2008/3, 6 June 2008. In para. 16 it holds: ‘The contextual relevance of indicators is a key consideration in the acceptability and use of indicators among potential users. Countries and regions within countries differ in terms of their level of development and realization of human rights. … Therefore, it may not be possible to have a set of universal indicators to assess the realization of human rights. Having said that, it is also true that certain human rights indicators, for example those capturing realization of some civil and political rights, may well be relevant across all countries and their regions, whereas others that capture realization of economic or social rights, such as the rights to health or adequate housing, may have to be customized to be of relevance in different countries. But even in the latter case, it would be relevant to monitor the minimum core content of the rights universally. Thus, in designing a set of human rights indicators, …, there is a need to strike a balance between universally relevant indicators and contextually specific indicators, as both kinds of indicators are needed.’ 104 CESCR, General Comment 3 (1990), para. 10; and CESCR, Statement on Poverty and the ICESCR, E/C.12/2001/10, 10 May 2001, para. 17. 105 See also the discussion by Ssenjonyo (2009), pp. 77–81; and Riedel (2006). 106 These and other questions are discussed in some more detail by e.g. International Council on Human Rights Policy (2003); Künnemann (2001); and Ssenyonjo (2009), p. 80.



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when non-state actors are also involved in international cooperation and assistance.107 Third, opinions given by the CESCR on international minimum core rights and obligations can be useful in guiding the procedures at national level to establish pragmatic national minimum core rights and obligations where resources are insufficient to comply immediately with the international minimum core. For example, principles like non-discrimination, participation and the concentration on particularly marginalised or disadvantaged groups are important for defining potential national minimum core rights/obligations, which should also be made justiciable before domestic courts.108 Fourth and finally, an international minimum core defined by the CESCR can strengthen the effective adjudication of certain violations of ESC rights before national courts. It can give litigants at national level an additional tool to strengthen their argument for gaining access to certain essential services, if they are indispensable for the enjoyment of minimum core rights.109 This may be true in particular when no national minimum core rights/obligations have been defined; or when the scope of national core rights/obligations are significantly below the minimum core obligations defined at international level.110 4.3.2. The Pragmatic National Minimum Core Given the considerable differences between states and the impossibility of defining detailed minimum core obligations/rights at the international level that resonate with the individual experiences of rights claimants around the world, it is important that states define their pragmatic national minimum core rights/obligations. The latter can take better account of the specific situation in a country, in particular as far as the development of detailed measures for the actual implementation of minimum core obligations is concerned.111 Among other things, the availability 107 See e.g. Larsen (2008). 108 See e.g. CESCR, General Comment 19 (2008), para. 59(a); General Comment 15 (2002), paras. 34(b) and (f); General Comment 14 (2000), para. 43(f); and Liebenberg (2006), p. 33. 109 In her review of jurisprudence of the Colombian Constitutional Court Sepulveda notes that the Court time and again refers to general comments to strengthen its arguments (Sepulveda (2008), p. 147). See also, International Commission of Jurists (2008), p. 19, noting that e.g. courts in Argentina and Costa Rica have taken similar approaches. 110 International Commission of Jurists (2008), chapter 7 examining in more general terms the role of international ESC rights for setting standards at the national level. 111 As recognised by the CESCR and the ECSR. See e.g. Art. 8(4) OP ICESCR holding that ‘…the Committee shall bear in mind that the State Party may adopt a range of possible

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of resources and professional capacities can be taken into account, as well as content and structure of national constitutions. Pieterse notes that if South Africa were to adopt a minimum core right to health, it would for instance not include non-medical determinants of health as suggested by General Comment 14 since they are covered by other constitutional provisions.112 A recent comparative examination of national and international ESC rights jurisprudence shows that many countries are describing national minimum core socio-economic rights of citizens and persons under their jurisdiction, which can be claimed before national courts and enforced immediately.113 For example, the Colombian Constitutional Court has defined ‘minimum conditions for a dignified life’ based on the rights to life, health, work and social security that are part of the extensive fundamental rights catalogue of the Colombian Constitution.114 If this standard is not met through government social policy measures, courts intervene to order the immediate enforcement of relevant minimum core rights to remedy the situation, even if this results in a duty to give an individual access to certain services, goods or programmes and even if this may have resource implications.115 Similarly, Art. 12 of the Swiss constitution policy measures for the implementation of the rights set forth in the Covenant’. Similarly, the ‘jurisprudence’ the ECSR recognises states’ margin of discretion in regard to measures taken to implement their obligations under the ESC/RESC. With regard to Art. 12(3) RESC it held that ‘States enjoy a wide margin of discretion on how to organize their social security systems, including defining the personal scope of schemes providing health care benefits, as long as a significant percentage of the population is covered and the benefits provided are sufficiently extensive’ (ECSR, Complaint 43/2007, Sindicato dos Magistrados do Ministério Publico (SMMP) v Portugal, Decision on the Merits, 3 December 2008, para. 44); see also, Complaint 30/2005, Marangopoulos Foundation for Human Rights (MFHR) v Greece, Decision on the Merits, 6 December 2006, para. 221; and Complaint 31/2005, European Roma Rights Centre (ERRC) v Bulgaria, Decision on the Merits, 18 October 2006, paras. 35–54. 112 Pieterse (2006), pp. 490–491. 113 Langford (2008), p. 22, holding that ‘in broad brush terms, many adjudicators tend to enforce one or both of the two key state obligations identified by the CESCR: First, the adequate duty to take steps towards the progressive realisation of the rights within available resources and, secondly, the implicit obligation to immediately achieve a minimum level of realisation’. 114 Ibid.; and Sepulveda (2008), pp. 147–148. 115 Sepulveda cites many cases of the Colombian Constitutional Court ibid. E.g., with regard to the right to health, the court has constantly ordered state or private entities to provide individuals (in particular children) with medication or medical treatment necessary for the immediate protection of their right to health. It does so when this is necessary for the protection of the right to life, personal integrity, dignity or the minimum conditions for a dignified life of the person in question. Sepulveda also notes that this approach of the Colombian Constitutional Court is different from the one chosen by the South African



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includes a provision that reflects the protection of national minimum core rights: ‘Whoever is in distress without the ability to take care of him- or herself has the right to assistance and care and to the means indispensable for a life led in human dignity.’116 Swiss courts have made it clear that the state has a duty to prevent people in urgent need or distress from being forced to endure an ‘undignified beggar’s existence’ by whatever suitable means, including financial support or allowances in kind.117 Similar jurisprudence is known from Argentina,118 Brazil,119 Finland,120 Germany121 and India122 to name but a few examples the current author is aware of. Even in countries that are traditionally reluctant to facilitate social rights adjudication, courts occasionally grant immediate relief to Constitutional Court in Soobramoney v Minister of Health (Kwazulu-Natal), Judgment of 27 November 1997. 116 Translation by author of the official Swiss Constitution (in German) at: http://www .admin.ch/ch/d/sr/1/101.de.pdf [last accessed 19 September 2012]. Apart from this provision and the right to free primary education, the Swiss constitution’s fundamental rights section does not include a comprehensive catalogue on ESC rights. However, its chapter 3 on ‘social objectives’ incorporates inter alia a duty of the state to ‘endeavour to ensure’ that everyone has access to social security, health care, suitable accommodation and education. 117 V v Einwohnergemeinde X und Regierungsrat des Kantons Bern, BGE/ATF 121 I 367, Federal Court of Switzerland, 27 October 1995, Erwägung 2, para. c). 118 The Argentine Supreme Court has for instance held that: ‘in light of the human right to health guaranteed by the [Argentine] Constitution and international human rights treaties, statutory regulations granting access to medical services should be read as requiring health care givers to fully provide essential medical services in case of need’; see, International Commission of Jurists (2008), p. 25; similarly Courtis (2008), pp. 163–181; and Langford (2005), p. 100. 119 International Commission of Jurists (2008), p. 25. 120 Scheinin (2001a), pp. 51–53. 121 See, in particular, the case BVerfG, 1 BvL 1/09 of 9.2.2010, in which the German Constitutional Court formulated in clear terms that the state has an obligation, deriving from the Art. 1(1) (human dignity) read in conjunction with the ‘welfare-state principle’ of Art. 20(1) German Basic Law, to ensure that those in need have, as a minimum, their material needs secured that are necessary for maintaining physical well-being and for enjoying minimal participation in the country’s social, cultural and political life (defining a minimum subsistence level). It further held that the legislature had to determine the exact scope of social benefits that ensure everyone’s subsistence level in a transparent and objective procedure, based on reliable data and applying a comprehensible and realistic calculation method. The German Constitutional Court’s jurisprudence is also discussed by the International Commission of Jurists (2008), p. 24. 122 See e.g. Paschim Banga Khet Majoor Samity v State of West Bengal, Supreme Court of India, Judgment of 6 May 1996, where the Indian Supreme Court found that the right to emergency medical care for accident victims forms part of the minimum core of the right to health in India; and in People’s Union for Civil Liberties v Union of India, Writ Petition (Civil) No. 196 of 2001, Interim Order of 2 May 2003, where it held that the right to access government food supplies of those in danger of starvation forms part of the minimum core right to food; see also Muralidhar (2008), pp. 117–118.

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individuals by pointing to the ‘positive’ duty of states to ensure that most basic needs of all human beings under their jurisdiction are satisfied. For instance, reviewing the UK’s social rights jurisprudence, King mentions a decision of the House of Lords concluding that the prohibition to provide aid to asylum-seekers who did not claim asylum ‘as soon as reasonably possible’ with the result that many of them had to sleep outside and to beg for food because they were not allowed to work either, violated Art. 3 of the UK Human Rights Act—the prohibition of torture and inhuman and degrading treatment.123 The legal provisions underlying the protection of minimum core ESC rights at the national level are usually quite broad, be it that constitutions directly include ESC rights, or be it that the right to minimum conditions of a dignified life is deduced from directive principles of state policy and/ or civil and political rights. It is the role of the legislature to concretise the services and goods every individual is entitled to access for the enjoyment of his/her minimum ESC rights through appropriate and affordable schemes.124 As mentioned previously, an internationally-defined core should guide the legislature in developing national standards, procedurally and in terms of content. The principles of participation and non-discrimination would require that the decision on which health care services, for example, should be made available under the national minimum core right to health, should be based on a broad and transparent consultation process, and that every individual is offered equal opportunities for accessing these services.125 Experts, for instance health professionals, must be involved in these processes to ensure that national minimum cores cover the most prevalent health risks in a particular country. However, it must be recognised that these decisions have to change in accordance with a country’s

123 The relevant cases are R v Secretary of State for the Home Department ex p Adam; R v the Secretary of State for the Home Department ex p Limbuela and R v Secretary of State for the Home Department ex p Tesema, House of Lords, Judgment of 3 November 2005, [2005] UKHL 66; see King (2008), pp. 286–287; a similar tendency has been observed in earlier cases from the US discussed by Albisa and Schultz (2008). 124 In this context, see the observation by the International Commission of Jurists (2008), p. 17, that many countries define the extent of treatment any health service should provide in their respective country in national laws. This can be seen as a specification of the right to health at the national level, taking account of the national context. 125 See e.g. Report of the Special Rapporteur on the Right to Health, A/HRC/7/11, 31 January 2008, paras. 40–42 and 63. The importance of these principles is also reiterated by the Committee in e.g. CESCR, Concluding Observations—Cambodia, E/C.12/KHM/ CO/1 (2009), para. 15; and India, E/C.12/IND/CO/5 (2008), para. 72.



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economic and social developments.126 Porter has furthermore called for the strong linking of individual circumstances and unique interests with rights claims,127 which requires a contextualised approach to violations of minimum core ESC rights. Minimum-core definitions should therefore not be too rigid, as this may undermine that contextualisation. This opportunity is strengthened when the general national minimum standard is made justiciable before national courts. Courts can then decide on a caseby-case basis whether the concretisation by the legislature proves sufficient to guarantee the minimum core in a particular case.128 Without going into the details of the justiciability debate of ESC rights, it seems that national courts themselves rarely determine the exact content of national minimum core obligations and measures for their implementation.129 Rather, they normally follow a ‘negative’ approach, constraining themselves to ruling that something is ‘not good enough’130— i.e. has not met the minimum core—calling on the legislature to adopt suitable measures to remedy the situation without describing exactly what measures are to be taken.131 A similar approach would possibly be followed by the CESCR once it starts adjudicating on individual claims under the Optional Protocol to the ICESCR.132 This is partly due to the general reluctance toward the judicial enforcement of social and 126 This necessity was clearly formulated in a 2010 judgement of the German Constitutional Court, 1 BvL 1/09 vom 9.2.2010. 127 Porter (2005), p. 52. 128 The decision by the German Constitutional Court, 1 BvL 1/09 vom 9.2.2010, reflects this. It inter alia highlights the need for taking into account the specific circumstances and unique interests of different groups (in this case children) when the amount of social cash benefits is determined allowing individuals in need to live in accordance with the national minimum subsistence level. In earlier cases, the Constitutional Court had inter alia decided whether a specific medical treatment was covered by the national health insurance scheme, taking into account the individual circumstances of claimants (BVerfG, *Leistungspflicht der gesetzlichen Krankenversicherung bei neuen Behandlungsmethoden—„Bioresonanztherapie“, Beschluss vom 6. Dezember 2005, 1 BvR 347/98); see also Pieterse (2006), p. 491; and Bilchitz (2007), pp. 224–225. 129 Exceptions can be cases of considerable seriousness and great urgency, see Langford (2005), p. 106. 130 Koch (2009), p. 287–288. 131 See Scott and Alston (2000), p. 250, who advocated this view of a national minimum core that evades precise identification, leaving it to the courts to decide on a ‘‘calling it as we see it’ case-by-case basis’. See also Nolan, Porter and Langford (2007), p. 9, finding that ‘courts are able to respond adequately to individual circumstances and historical developments in concretising their meaning over time’. This may also be achieved by a ‘substantive reasonableness review’ as suggested by Liebenberg (2006), pp. 33–34; and Pieterse (2006), pp. 492–500. 132 Riedel (2011), p. 582.

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economic rights suggesting that such enforcement would contradict the doctrine of separation of powers, in particular when resource allocations are required.133 All in all, defining a workable content of pragmatic national minimum cores and of principled universal minimum cores will require further efforts.134 It will also involve experts other than human rights professionals, such as food scientists, health professionals and education specialists. Moreover, it must be kept in mind that the process of determining minimum core obligations/rights cannot altogether avoid making decisions that involve complex moral questions to which neither human rights nor ethics seem to provide neat answers.135 For example, identifying a minimum core right to health will necessarily involve utilitarian considerations which may have tragic consequences for some individuals when its cost prevents a specific treatment being included in the minimum core.136 4.4. Non-Core Obligations and their Relationship with the Minimum Core: A Nuanced Priority for Minimum Core Obligations Thus far, international and national minimum core obligations have been discussed which should be implemented as a matter of priority in order to realise ‘minimum essential levels’ of ESC rights. As mentioned above, their implementation would not go far beyond preventing starvation, dehydration, and securing access to basic shelter and essential primary health services addressing the most common health problems within a society. It would not yet allow individuals to live a fulfilling life and enable them to pursue their own goals,137 or to enjoy full human flourishing.138 States’ obligations under ICESCR to progressively realise ESC rights clearly go beyond the implementation of minimum core obligations: ‘to move as expeditiously and effectively as possible towards the full realisation’139 of for instance the right to ‘adequate food’ and the right to the ‘highest attainable standard of physical and mental health’140 (non-core obligations). 133 This is discussed by many scholars, see supra n. 82. 134 As also clearly stated by the UN Special Rapporteur on the Right to Health, A/HRC/7/11, 31 January 2008, para. 53. 135 Ibid., para. 63. 136 As highlighted in particular by Lehmann (2006), p. 190. 137 As expressed by Bilchitz (2007). 138 As expressed by Pogge (2002). 139 See e.g. General Comment 19 (2008), paras. 40–41; General Comment 15 (2002), para. 18; General Comment 14 (2000), paras. 30–31; General Comment 13 (1999), paras. 43–44. 140 Art. 11(1) and Art. 12 ICESCR respectively (my emphasis).



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Remarks about individuals’ vital interests which underlie minimum core rights/obligations may create the impression that states shall put absolute priority on the realisation of minimum core obligations.141 Such absolute priority would imply that states can only move towards implementing their non-core obligations when they have ensured that minimum core obligations are implemented without exception for all individuals under their jurisdiction. Yet, giving absolute priority to the implementation of minimum core obligations would be unrealistic142 and there are at least two further objections against such absolute priority. First, putting absolute priority on the realisation of minimum core obligations would not be a sustainable approach towards progressively realising full ESC rights. Exclusively concentrating on measures to enable people to have access to basic shelter, food, health care and education might prevent governments from adopting strategies with a long-term goal of ensuring that people can live a life above the standard required by the bottom-line level of the minimum core. Wesson for example finds in his comment on the South African Grootboom case143 that solely providing rudimentary shelter, water and basic sanitation to people directly would not constitute a long-term investment, if these ‘emergency’ measures are not linked to other programmes, such as the construction of lowcost housing, the provision of subsidies or measures to create jobs. He observes that a sole concentration on ‘emergency’ measures would result in an ‘ongoing drain on resources’ (permanently replacing tents, maintaining latrines and transporting water) which will never allow moving beyond providing emergency assistance. In the long-term, this cannot be described as an effective use of resources.144 Second, especially with regard to the minimum core obligations arising from the right to health it is virtually impossible and unaffordable to raise everyone to the standard allowing him/her to enjoy a minimum level of well-being.145 The ability to benefit from essential health services that are 141 See e.g. Wesson’s understanding of the minimum core approach: ‘… the minimum core is intended to establish certain classes of needs as enjoying priority over others. … The justification for this approach is that these needs are … the most urgent and must therefore be taken to trump needs located outside the minimum core’ (Wesson (2004), p. 298). 142 Chapmann and Russell (2002), p. 14, noting that in an imperfect world 100 per cent compliance with minimum core obligations is unattainable. 143 Government of the Republic of South Africa and Others v Grootboom, Constitutional Court of South Africa, Judgment of 11 May 2000. 144 Wesson (2004), p. 304. For Wesson, this is one reason to reject the minimum core approach altogether. 145 Bilchitz (2007), p. 209; see also CESCR, General Comment 14 (2000), para. 9.

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regularly made available under a minimum core right to health depends very much on the personal circumstances of individuals. A state cannot be required under the minimum core to spend big parts of its budget on raising a few people with special health conditions to an equal health standard as those who only require the primary care regularly provided.146 That this cannot be the aim of the minimum core approach is clear from the South African Soobramoney judgment and responses to it: the decision has been criticised for various reasons,147 but rarely for its finding that Mr Soobramoney was not provided with expensive specialised medical treatment to prolong his life in a country where many people lack essential primary health care.148 For these reasons it is clear that a more nuanced view of priority in the implementation of minimum core obligations over the implementation of non-core obligations must be adopted that ‘does not accord absolute priority to the interests of the worst off, yet [it] provides special consideration for such interests’.149 Policies aiming to implement ESC rights should, for instance, allow for reasonably balancing short-term and long-term goals. That is, (emergency) measures taken to alleviate the most urgent shortcomings and measures that aim at improving the long-run situation in a sustainable manner should go hand in hand.150 The remark that the implementation of core obligations should always be a ‘springboard for further action’151 is relevant here. Implementing minimum core obligations does not primarily mean providing deprived people directly with free basic shelter, free meals or free essential health care. The main objective of implementing minimum core rights is to create a sustainable system152 that allows every individual to 146 This should not detract from the fact that special attention must be given to the implementation of the right to health of marginalised and disadvantaged groups, including individuals with special health needs. 147 See criticism by e.g. Scott and Alston (2000), p. 256; Moellendorf (1998); and Liebenberg (2002), pp. 164–167. 148 Soobramoney v Minister of Health (Kwazulu-Natal), Constitutional Court of South Africa, Judgment of 27 November 1997, paras. 28–31. 149 Bilchitz (2007), p. 211. He introduces the notion of ‘weighted priority’ for the minimum core, pp. 208–215. The notion of priority is also discussed by Scott and Macklem (1992), p. 77; Alston and Scott (2000), p. 252; Chapmann and Russell (2002), p. 14; and Roux (2002), p. 47. 150 Liebenberg (2005), p. 25. 151 Van Bueren (1999), p. 59; similarly, Koch (2009), p. 288; and Ssenyonjo (2009), p. 67. 152 This is pointed out by many authors supporting the minimum core approach, e.g. De Vos (1997), p. 87; Liebenberg (2006), pp. 32–33; Bilchitz (2007), p. 224; Scheinin (2001b), p. 211; and Ssenyonjo (2009), p. 62; it is also manifested in the Colombian Constitutional Court’s jurisprudence, see Sepulveda (2008), p. 151.



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gain physical and economic access to for instance primary health care, basic adequate food and shelter by using their own resources and capabilities. The 2008 report of the UN Special Rapporteur on the Right to Health clearly sets out that the most fundamental obligation on states under the right to health is the building of an affordable and effective health system that meets at least the most prevalent health needs of the population.153 Providing direct and free access to a certain good or service is an exception—for example when the system is failing due to an emergency or disaster; or when an individual has no alternative due to personal distress, unemployment, old age, etc. When creating and maintaining such a system, states are required to do this with the long-term aim to improve and extend the system progressively in accordance with available resources, implementing their noncore obligations.154 For example, the ECSR has time and again found that under Art. 31(2) RESC states are obliged to gradually reduce homelessness with a view to its elimination. It held that reducing homelessness implies the introduction of emergency and longerterm measures, such as the provision of immediate shelter and care for the homeless as well as measures to help such people overcome their difficulties and to prevent them from returning to a situation of homelessness.155

4.5. ‘Available Resources’ within the Meaning of Art. 2(1) ICESCR This section aims to shed some light on the question of which resources are actually ‘available’ within the meaning of Art. 2(1) ICESCR and have to be utilised for the progressive realisation of minimum core and non-core rights. While all measures that are to be taken to implement minimum 153 Report of the UN Special Rapporteur on the Right to Health, A/HRC/7/11, 31 January 2008; similarly see, CESCR, General Comment 14 (2000), para. 43(f), holding that states are obliged to define and adopt a ‘national public health strategy and plan of action, on the basis of epidemiological evidence, addressing the health concerns of the whole population’ as part of their minimum core obligation under the right to health; and Backman at al (2008). 154 For a discussion of what this could mean in times of armed conflict, see also chapters VII and VIII. 155 ECSR, Complaint 39/2006, European Federation of National Organisations Working with the Homeless (FEANTSA) v France, Decision on the Merits, 5 December 2006, para. 103; and on Complaint 27/2004, European Roma Rights Centre (ERRC) v Italy, Decision on the Merits, 7 December 2005, paras. 35. Similarly, in Government of the Republic of South Africa and Others v Grootboom, Judgment of 11 May 2000, para. 99, the South African Consti­ tutional Court did not ask the government to stop its relatively far-reaching housing programme in order to free resources for meeting the urgent needs of the applicants.

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core and non-core obligations will require resources,156 it is worth recalling that there are some measures that will need more resources than others. Moreover, as noted, there is a strong presumption that states regularly have the resources required for implementing international minimum core obligations concretised through a nationally-defined minimum threshold.157 The actual scope of non-core obligations is thus conditional on the availability of resources to a higher degree than minimum core obligations.158 There are two possible interpretations as to which resources are ‘available’: Either, only those resources which have been allocated by a state to the realisation of ESC rights, or all resources in the control of the state are included into this notion.159 Whereas the South African Constitutional Court in Soobramoney appears to follow the first very narrow interpretation of ‘available resources’,160 it has convincingly been argued that this is an unreasonable understanding of the pool of resources which are ‘available’ to a state,161 and that it is at odds with the intention of the drafters of the ICESCR.162 156 In this context, the argument that all obligations that fall into the category of respect are automatically part of an internationally-defined minimum core because it is assumed that they are cost free, has to be rejected here. See e.g. Chapman and Russell (2002), p. 11. It was argued supra, part 3 that even the implementation of obligations that are regularly categorised as obligations to respect entail some costs. 157 Yet, the argument was made (supra, section 4.3.1) that if a state suffers severe resources constraints, the pragmatic national minimum core may lie below the principled international minimum core. 158 E.g. Wesson (2004), p. 299; De Vos (1997), p. 97; Bilchitz (2007), pp. 228–234; and Scott and Alston (2000), p. 253. 159 Moellendorf (1998), p. 331 points to these two possible interpretations; see also Craven (1995), p. 137; and Ssenyonjo (2009), p. 61. 160 Soobramoney v Minister of Health (Kwazulu-Natal), Constitutional Court of South Africa, Judgment of 27 November 1997, especially paras. 24 and 28, which imply that only the funds currently available to the Department of Health in KwaZulu-Natal are considered to be ‘available’ for financing renal clinics. See the different approach of the Indian Supreme Court in Paschim Banga Khet Majoor Samity v State of West Bengal, Judgment of 6 May 1996; and in People’s Union for Civil Liberties v Union of India, Supreme Court of India, Writ Petition (Civil) No.196 of 2001, Interim Order of 2 May 2003. 161 See Moellendorf (1998), pp. 331–333; De Vos (1997), p. 97; Bilchitz (2007), pp. 230–234; and Craven (1995), p. 137. 162 An earlier version of Art. 2(1) ICESCR had included the phrase ‘… to the maximum of its available resources for this purpose’. During the drafting process, this phrase had been deliberately deleted in order to make clear that resources available to the state for the realisation of ESC rights should not be limited to governmental allocations. See in particular the discussion recorded in: Summary Record of the 271st meeting of the UN Commission on Human Rights, E/CN.4/SR.271 (1952), pp. 4–8 (in particular statements by the Chilean, Lebanese, French and Soviet representatives); see also the analysis by Alston and Quinn (1987), pp. 177–181; and Craven (1995), p. 136.



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If it were only those resources which a state itself has allocated to the realisation of ESC rights that are ‘available’ for the progressive realisation, states could easily avoid any obligation under the ICESCR by simply allocating no resources to the realisation of ESC rights.163 Accordingly, resources ‘available’ to a state for progressive realisation of ESC rights include all resources which lie within the control of the government. This must include at least resources which are owned by the state. International resources form a part of them, for example those which have been made available to a state by international organisations/agencies or through official development assistance from bilateral donors.164 This also includes humanitarian assistance that is provided in situations of armed conflict, natural disaster or other emergencies. Van Bueren further suggests that available human and organisational resources form part of ‘available resources’.165 Another complex issue which cannot be dealt with here satisfactorily, is whether privately held resources within a state party can be included in the pool of ‘available resources’. The fact that governments have the power to regulate private property and to even expropriate property suggests that they could be included, especially in situations where there is a highly uneven distribution of resources within a society.166 However, resolving this question requires an extensive discussion about the role of property rights in the realisation of ESC rights,167 as well as about the role of private actors. Whereas states necessarily have discretion in deciding upon the allocation of resources168 to achieve ESC rights, these decisions have been reviewed by the CESCR, the ECSR, and by national courts.169 The CESCR 163 Noted by Alston and Quinn (1987), pp. 179–180; Bilchitz (2007), p. 228; De Vos (1997), p. 98; Moellendorf (1998), p. 331. 164 This is clear from the wording of Art. 2(1) and Art. 11(2) ICESCR. Art. 15(4), Art. 22 and Art. 23 reiterate the importance of international cooperation in facilitating the full realisation of ESC rights. See also, CESCR, General Comment 3 (1990), para. 13; Rosas and SandvikNylund (2001), p. 415; De Vos (1997), p. 98; Sandvik-Nylund (2003), pp. 23–24; Ssenyonjo (2009), p. 62; and the Limburg Principles (1986), para. 26. 165 Van Bueren (1999), pp. 61–62; and Ssenyonjo (2009), p. 62. 166 This question is raised by Eide (2001), p. 26; and Bilchitz (2007), p. 228. 167 For an initial analysis in the South African context see Liebenberg (2006), pp. 35–36. 168 Ssenyonjo (2009), p. 63 with references to the CESCR’s position; Craven (1995), p. 136; Alston and Quinn (1987), pp. 179–180; see also supra, section 4.3.2. 169 It should be noted that solely looking at expenditure on economic and social services within a country may not tell the whole truth about the actual level of realisation of ESC rights within a specific country because it will not give an indication as to whether expenditures actually reached people who are most in need. See e.g. CESCR, Concluding Observations—Democratic Republic of the Congo, E/C.12/COD/CO/4 (2009), para. 16.

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has, for example, questioned cases where the proportion of a particular state’s GDP spent on social and economic services has declined,170 or is clearly insufficient,171 and voiced its concern at such developments. It has also been critical toward increased spending on defence.172 Likewise, concerning Bulgaria the ECSR held, that to justify the non-implementation of the right to education of children with intellectual disabilities because of financial constraints, Bulgaria must demonstrate measures and programmes aiming to implement the right that fulfil the following three criteria: ‘(i) a reasonable timeframe, (ii) a measurable progress and (iii) a financing consistent with the maximum use of available resources’.173 Also, to give one example from a national court, in Samity the Indian Supreme Court ordered the state to set up a system that ensured the availability of adequate emergency health services to meet the needs of the population, implying that the government had not allocated sufficient resources to this end.174 5. The TripleAQ-Framework: Availability, Accessibility, Acceptability and Quality As should be clear from the foregoing part, the minimum core approach developed by the Committee and interpreted by the present author as requiring states to define a national minimum core with the guidance of a universal minimum core, holds some promise to determine the ‘steps’ states should take to realise ESC rights and thereby to overcome the difficulties inherent in the notion of progressive realisation. 170 E.g. CESCR, Concluding Observations—Algeria, E/C.12/1/Add.71 (2001), paras. 20, 23, 34 and 40; Albania, E/C.12/ALB/CO/1 (2006), para. 33; Colombia, E/C.12/1/Add.74 (2001), paras. 14, 21 and 26; Philippines, E/C.12/PHL/CO/4 (2008), para. 17; Poland, E/C.12/POL/ CO/5 (2009), para. 29; and Turkmenistan, E/C.12/TKM/CO/1 (2011), para. 12. 171 E.g. CESCR, Concluding Observations—Democratic Republic of the Congo, E/C.12/ COD/CO/4 (2009), paras. 16, 24, 29–31 and 34; Russian Federation, E/C.12/RUS/CO/5 (2011), para. 26; Sri Lanka, E/C.12/LKA/CO/2–4 (2010), para. 31; Chad, E/C.12/TCD/CO/3 (2009), para. 23; Cambodia, E/C.12/KHM/CO/1 (2009), paras. 27 and 38; Angola, E/C.12/AGO/CO/3 (2008), paras. 26 and 39; Dominican Republic, E/C.12/DOM/CO/3 (2010), paras. 30 and 32; Madagascar, E/C.12/MDG/CO/2 (2009), para. 25; and India, E/C.12/IND/CO/5 (2008), para. 33. 172 E.g. Concluding Observations—Democratic Republic of the Congo, E/C.12/COD/ CO/4 (2009), para. 16; Algeria, E/C.12/1/Add.71 (2001), para. 23 and again in E/C.12/DZA/ CO/4 (2010), para. 18. See also the analysis by Ssenyonjo (2009), p. 64. 173 ECSR, Complaint 41/2007, Mental Disability Advocacy Centre (MDAC) v Bulgaria, Decision on the Merits, 3 June 2008, paras. 39 and 47 (emphasis added). 174 Paschim Banga Khet Majoor Samity v State of West Bengal, Supreme Court of India, Judgment of 6 May 1996, para. 16.



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Another analytical framework that describes four essential elements of ESC rights, the so-called TripleAQ-framework175 has become a prominent feature of all the CESCR’s more recent general comments.176 The TripleAQframework can further complement the minimum core approach in guiding states in the implementation of ESC rights, including in situations of armed conflict when IHL applies in parallel. The four elements are the availability, accessibility, acceptability and quality of facilities, goods, services and programmes that are provided to individuals as part of states’ core and non-core obligations flowing from different ESC rights. While the precise application of these elements depends on the conditions prevailing in a particular country, they nonetheless describe essential interrelated features that are relevant for the implementation of ESC rights in all circumstances.177 Many general comments stipulate that—taken together—these four elements describe the adequacy of steps taken to implement different ESC rights.178 5.1. Availability The element of availability requires states to ensure that facilities, goods, services or programmes developed and implemented with the aim to realise ESC rights are available to all in sufficient quantity. For example, under the right to health states have to make available ‘functioning public health and health-care facilities, goods and services as well as programmes … in sufficient quantity’.179 In accordance with the above

175 This analytical framework was first adopted by the CESCR in its General Comment 4 (1991), para. 8, and further developed in General Comment 12 (1999), paras. 7–13. The work of former UN Special Rapporteur on the Right to Education, Tomaševski, also contributed to the development and refinement of this approach, in particular her Preliminary Report, E/CN.4/1999/49, 13 January 1999, part II, setting out four essential features which primary schools should exhibit, namely availability, accessibility, acceptability and adaptability. 176 CESCR, General Comment 12 (1999), paras. 7–13; General Comment 13 (1999), paras. 6–7; General Comment 14 (2000), para. 12; General Comment 15 (2002), para. 11; General Comment 18 (2005), para. 12; and General Comment 19 (2008), paras. 10, 22–27; see also CESCR, Concluding Observations—The Netherlands, E/C.12/NDL/CO/4–5 (2010), para. 29. 177 This is noted in all General Comments of the Committee that use this analytical framework, e.g. General Comment 13 (1999), para. 6: ‘While the precise and appropriate application of the terms will depend upon the conditions prevailing in a particular State party, education in all its forms and at all levels shall exhibit the following interrelated and essential features: …’. See also Riedel (2009), p. 28. 178 See e.g. CESCR, General Comment 12 (1999), paras. 7–8; and General Comment 15 (2002), paras. 11–12. 179 CESCR, General Comment 14 (2000), para. 12(a); similarly see General Comment 19 (2008), para. 11; General Comment 18 (2005), para. 12(a); General Comment 15 (2002),

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discussion about the changing content of the minimum core and noncore right to health that is made available to individuals at different points in time, depending inter alia on available resources, the scope of the facilities, goods and services will vary within different states. States have to build a functioning health system that ensures the availability of these goods and services. In times of emergency, including in armed conflicts when health systems are impeded or break down entirely, availability of essential medical care must inter alia be ensured through the work of national and international humanitarian organisations.180 This would include an obligation of states affected by armed conflicts to appeal to international actors for assistance.181 5.2. Accessibility The element of accessibility refers to states’ obligation to ensure physical, economic and non-discriminatory access to facilities, goods, services and programmes that are made available through the implementation of minimum core and non-core obligations flowing from different ESC rights.182 Regarding the right to health, physical accessibility implies that health facilities, goods and services and underlying determinants of health are ‘within safe physical reach for all sections of the population, especially vulnerable or marginalised groups.’183 While there is no clear definition of ‘especially vulnerable or marginalised groups’ it is likely to include victims of armed conflicts, whose physical access to essential health care, basic food, water and shelter may have to be ensured temporarily through the direct delivery of humanitarian/medical assistance.184 Physical accessibility furthermore includes geographical accessibility. For example, health para. 12(a); and General Comment 13 (1999), para. 6(a); see also Chapman (2002b), p. 195; Toebes (1999), pp. 115–116, pointing out that the number of persons per one doctor/nurse is often used as an indicator for the availability of health care services and facilities; and Riedel (2009), p. 28. 180 CESCR, General Comment 14 (2000), paras. 16 and 40; General Comment 12 (1999), para. 19; CESCR, Concluding Observations—Sri Lanka, E/C.12/LKA/CO/2–4 (2010), para. 28; Democratic Republic of the Congo, E/C.12/COD/CO/4 (2009), para. 29; and Rosas and Sandvik-Nylund (2001), p. 411. See also chapter VIII. 181 See also the discussion in chapter VIII, part 2; and Ssenyonjo (2009), pp. 81–82. 182 Riedel (2009), p. 29. 183 CESCR, General Comment 14 (2000), para. 12(b)(ii); similarly, General Comment 18 (2005), para. 12(b)(ii); General Comment 15 (2002), para. 12(c)(i); General Comment 13 (1999), para. 6(b)(ii); see also CESCR, Concluding Observations—Dominican Republic, E/C.12/DOM/CO/3 (2010), para. 30; and Chapman (2002b), p. 195. 184 CESCR, General Comment 12 (1999), paras. 15 and 18; General Comment 19 (2008), para. 27.



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care services shall be within reasonable geographical reach of both rural and urban residents.185 Economic accessibility refers to states’ obligations to make goods, services, facilities and programmes that aim at the realisation of different ESC rights affordable for all, as a result of economic activities in the widest sense. As the General Comment on the Right to Health specifies, economic accessibility implies that ‘payment for health-care services … has to be based on the principle of equity …. Equity demands that poorer households should not be disproportionately burdened with health expenses as compared to richer households.’186 Economic accessibility is highly connected to the obligation to create a system that allows individuals to access essential health care, adequate food, housing, etc. independently and in a sustainable manner through using their own means; securing physical accessibility to basic services may, by contrast, be an immediate priority to alleviate urgent suffering.187 Non-discriminatory accessibility implies access to relevant facilities, goods, services and programmes in conformity with Art. 2(2) ICESCR, prohibiting ‘discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’ in the enjoyment of ESC rights.188 5.3. Acceptability The element of acceptability usually refers to the cultural, religious189 and ethical appropriateness of goods, services and facilities, as well as the way in which programmes for their implementation are developed and put into practice. For instance, acceptability with regard to the right to health requires that ‘all health facilities, goods and services’ are ‘respectful of medical ethics and culturally appropriate, i.e. respectful of the culture of 185 Toebes (1999), p. 119; also noted by the CESCR, Concluding Observations—Uruguay, E/C.12/URY/CO/3–4 (2010), para. 23; and Madagascar, E/C.12/MDG/CO/2 (2009), paras. 29(b) and 31(b). 186 CESCR, General Comment 14 (2000), para. 12(b)(iii); also Toebes (1999), pp. 117–118. 187 See also the discussion supra, section 4.4. 188 CESCR, General Comment 19 (2008), para. 23; General Comment 18 (2005), para. 12(b)(i); General Comment 15 (2002), para. 12(c)(iii); General Comment 14 (2000), para. 12(b)(i); and General Comment 13 (1999), para. 6(b)(i); see also, Concluding Observations— Algeria, E/C.12/DZA/CO/4 (2010), paras. 13 and 20; Colombia, E/C.12/COL/CO/5 (2010), paras. 24 and 25; Republic of Korea, E/C.12/KOR/CO/3 (2009), paras. 22, 30 and 33; Chad, E/C.12/TCD/CO/3 (2009), paras. 25 and 26; and UK, E/C.12/GBR/CO/5 (2009), para. 32; see also Chapman (2002b), p. 195. 189 On this particular aspect see Eide (2001b), pp. 134–135.

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individuals, minorities, peoples and communities, sensitive to gender and life-cycle requirements, as well as … designed to respect confidentiality and improve the health status of those concerned’.190 Adhering to the element of ‘acceptability’ might be of considerable importance for ensuring effective delivery and distribution of humanitarian aid, including food and medical aid. In these situations, goods and services are frequently made available to countries that have different cultural and religious backgrounds than the region or country where they—and the personnel involved in their delivery—originate from. 5.4. Quality Closely related to the element of acceptability, goods, services, facilities and programmes provided under different minimum core and non-core ESC rights must be of a sufficiently good quality. For example, ‘health facilities, goods and services must be scientifically and medically appropriate and of good quality. This requires, inter alia, skilled medical personnel, scientifically approved and unexpired drugs and hospital equipment, safe and potable water, and adequate sanitation’.191 Ensuring good quality undoubtedly has considerable resource implications, as it incorporates monitoring the activities of third actors. To name but a few, among these third actors are those who provide medical aid192 in times of armed conflict and those who are involved in developing new drugs. 6. Concluding Remarks This chapter aimed to shed more light on the scope of states’ obligations under the ICESCR in general, and in situations of NIACs in particular. Overall, while the content of ESC rights remains the same at all times, 190 CESCR, General Comment 14 (2000), para. 12(c); also Toebes (1999), p. 121; Chapman (2002b), p. 195; Report of the UN Special Rapporteur on the Right to Health, A/HRC/7/11, 31 January 2008, para. 44; and General Comment 18 (2005), para. 12(c), where acceptability primarily refers to states’ obligations to ensure safe working conditions. 191 CESCR, General Comment 14 (2000), para. 12(d); General Comment 13 (1999), para. 6(c); see also CESCR, Concluding Observations—Sri Lanka, E/C.12/LKA/CO/2–4 (2010), para. 36; and Toebes (1999), p. 122, referring to the need for skilled doctors and nurses to ensure quality of health care; Chapman (2002b), pp. 195 and 198; Riedel (2009), p. 29; and Coomans (2002b), p. 229, describing elements that ensure ‘quality’ of education under the right to education. 192 See also the discussion in chapter VIII, section 3.3.



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how much of a right can be claimed by individuals at a particular point in time and the scope of the corresponding states’ obligations varies, determined mainly by two Articles of the ICESCR: Art. 2(1) setting out states’ obligation to ‘take steps’ towards the ‘progressive realisation’ of ESC rights in accordance with the ‘maximum available resources’; and the limitation principles contained in Art. 4 ICESCR. The latter will be discussed in chapter V. Regarding the notion of progressive realisation, the CESCR has developed three analytical frameworks with the help of which it aims to overcome the difficulties inherent in this notion. These difficulties are inter alia the absence of clearly defined ‘steps’ states should take towards the progressive realisation of ESC rights and the related lack of criteria against which the progressive realisation in accordance with the maximum available resources can be evaluated. All three analytical frameworks were examined with a view to evaluate their potential to address these challenges, as well as in particular their usefulness in describing the scope of states’ obligations under the ICESCR in times of armed conflict. The first analytical framework—the categorisation of states’ obligations into obligations to respect, protect and fulfil ESC rights—seems not particularly useful for clarifying obligations under the ICESCR at the current stage of the doctrinal debate on ESC rights. Moreover, relying on the tripartite typology might create difficulties in the chapters to come when the parallel application of ESC rights and IHL is discussed, because of the different meaning of certain terms in IHRL and IHL. The second analytical framework—the minimum core approach— holds considerable potential to help clarify the scope of states’ obligations to take steps to progressively realise ESC rights, including in times of armed conflict. In a review of the Committee’s statements and the literature that has evolved on the minimum core, it was observed that there are two main understandings of the minimum core approach based on which it is either endorsed or rejected by scholars. However, both national and international determinations entail problems. Identifying resourcedependent country-specific minimum cores would largely obliterate the original aim of the minimum core to provide a degree of determinacy to the notion of progressive realisation. Defining a universal minimum core is also problematic as it would need to capture vastly differing experience of rights-holders around the world and therefore risks excluding some people from its protection. In addition it is troublesome to assume that implementing a universally-defined minimum core can be affordable for all countries. Many minimum core rights/obligations as currently defined

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in the CESCR’s general comments are beyond what can be achieved with the resources available to low-income countries. A synthesis was suggested: the minimum core approach would entail an obligation on states to define pragmatic national minimum core rights/ obligations to be implemented as a matter of priority, reflecting available resources and national particularities; this national minimum core, including national benchmarks would be guided by a more vaguely formulated, principled international minimum core as set out in the CESCR’s general comments. This would prevent arbitrariness in the determination of national minimum cores. When the pragmatic national minimum core is below the principled international minimum core, states would need to pursue approximation to the international minimum core with great urgency. The internationally-defined minimum core would also play a role in determining when high-income states or other international actors are required to help low-income countries in implementing minimum core rights. Finding a reasonable interplay between an internationally-defined principled minimum core and a national pragmatic minimum threshold would prevent ESC rights being deprived of any meaningful content by disingenuous reference to ‘progressive realisation’. At the same time, it would recognise that a precise identification of minimum core rights/obligations as an objective measure at the international level is difficult. It was shown that some statements of the CESCR on the minimum core approach can be interpreted recognising this, and that this reflects the ‘jurisprudence’ of the ECSR and the ECtHR. Several national courts have also explicitly or implicitly adopted a minimum core approach. As far as the relationship between (national and international) minimum core and non-core obligations/rights is concerned, this relationship would ideally be characterised as one of ‘nuanced priority’ that is given to the implementation of minimum core rights/obligations. This would call for a reasonable balancing of short- and long-term goals in the implementation of minimum core and non-core ESC rights—i.e. (emergency) measures taken to alleviate the most urgent shortcomings and human suffering should go hand in hand with measures that aim at building sustainable, long-term systems. Since both the implementation of minimum core and non-core obligations depend on resources, it was discussed what resources can actually be considered ‘available’ under Art. 2(1) ICESCR. All resources that lie within the control of the government can be regarded ‘available’, including those that are provided by other states or international organisations.



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National courts and international bodies have to some extent successfully monitored states’ resource allocations for the progressive realisation of ESC rights. The third analytical framework used by the CESCR is the so-called TripleAQ-framework. It identifies four essential, interrelated features that every step taken towards the progressive implementation of minimum core and non-core ESC rights should exhibit—be it the provision of goods, facilities, services or programmes. These four features, namely availability, accessibility, acceptability and quality, are a helpful complement to the minimum core approach in the identification of the scope of states’ obligations under the ICESCR at different points in time, including in times of armed conflict. Both analytical frameworks will be relied upon when the parallel application of IHL and the right to health is discussed in chapters VI–VIII.

CHAPTER FIVE

LIMITATIONS TO AND DEROGATIONS FROM ECONOMIC, SOCIAL AND CULTURAL RIGHTS 1. Introduction The notion of ‘progressive realisation’ in accordance with the maximum available resources is one principle that determines the scope of a right to be enjoyed by individuals at a particular point in time and corresponding state obligations. An additional, rarely discussed question regards the extent to which states are allowed to limit ESC rights. As with the enjoyment of civil and political rights, the individual interests at stake in each socio-economic rights matter must be reconciled with competing societal interests. Moreover, economic difficulties, natural disasters, armed conflicts and other emergencies can affect available resources and influence  states’ abilities to maintain an achieved level of implementation of ESC rights under their obligation to ‘take steps’ to ‘progressively realise’ ESC rights. In these situations states need to be given the option to limit ESC rights in accordance with clearly established criteria that prevent arbitrariness in this matter. In situations of armed conflict, the additional question arises if states can derogate from ESC rights. This chapter examines the emerging criteria that states should follow when limiting ESC rights as per Art. 4 ICESCR, the Covenant’s general limitation clause. It also attempts to answer the question of whether states can derogate from ESC rights in times of emergency that threaten the life of the nation, despite the fact that the ICESCR does not contain a derogation clause. 2. Limitations to Economic, Social and Cultural Rights 2.1. The CESCR’s and States’ Unclear Approach to Limitations to Economic, Social and Cultural Rights To begin, attention should be drawn to the twofold rationale for permitting limitations to human rights: first, limitations highlight that human rights are rarely absolute or unconditional rights, which makes the human

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rights framework manageable. Most human rights rather reflect a balance between individual and community (state) interests. Many civil and political rights, but also some ESC rights, can therefore lawfully be limited for reasons of public order, public health, public morals, national security or public safety,1 which reflect these ‘public interests’.2 Second, limitation clauses mirror the necessity to solve conflicts between rights, for instance between the right to freedom of expression and the rights to respect for privacy or freedom of religion in the law of defamation. One right can be limited to give room so that another right can be exercised; these are limitations for the ‘protection of the rights and freedoms of others’.3 While limitations regularly form part of the examination of civil and political rights, limitations to ESC rights are rarely discussed.4 One reason for this may be the traditional separation of human rights into clear, immediately realisable civil and political rights on the one hand and vague, progressively realisable ESC rights on the other hand, and the resulting preoccupation of ESC rights scholarship to develop analytical frameworks for the clarification of the obligations under the ICESCR. Thus, relatively little information is available about states’ and the CESCR’s interpretation of Art. 4 ICESCR. Until very recently Art. 4 was not mentioned in the reporting-guidelines of the Committee which states were asked to follow when they submit­ ted  their periodic reports on the implementation of the ICESCR.5 The reporting-guidelines did not require states to report on the limitations they have imposed on ESC rights. This omission has been remedied with the adoption of new reporting-guidelines in 2009, though states have not yet followed these consistently.6 1 See Arts. 12, 18, 19, 21 and 22 ICCPR; Art. 8 ICESCR; regional treaties may list further grounds for limitations, see e.g. Art. 8 ECHR; Art. 32(2) ACHR; and Art. 14 ACHPR. 2 For an extensive discussion of these criteria see e.g. Nowak (2005), pp. 83–110; Jayawickrama (2002), chapter 7; and earlier, Lockwood, Finn and Jubinsky (1985). 3 Arts. 12, 18, 19, 21 and 22 ICCPR; Art. 8 ICESCR; Arts. 8–11 ECHR, Arts. 12, 13, 15, 16, 22 and 32(2) ACHR; Arts. 11 and 27(2) ACHPR. Arts. 19 ICCPR and 13(2)(a) ACHR additionally allow for limitations that aim to protect ‘reputations of others’. 4 An exception are Alston and Quinn (1987); and for the South African context, Iles (2004); and Pieterse (2006). 5 CESCR, Revised General Guidelines Regarding the Form and Content of Reports to be Submitted by State Parties under Articles 16 and 17 of the ICRSCR, E/C.12/1991/1, 17 June 1991. 6 CESCR, Guidelines on Treaty-specific Documents to be Submitted by State Parties under Articles 16 and 17 of the ICESCR, E/C.12/2008/2, 24 March 2009, para. 14, read in conjunction with the Compilation of Guidelines on the Form of and Content of Reports, HRI/GEN/2/Rev.5, 29 May 2008, para. 40(c), require states to include information



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The CESCR also very rarely requires states to provide this information when they respond to the Committee’s lists of issues, which identify questions the Committee wishes states’ representatives to discuss or clarify during an upcoming session.7 Nonetheless, some states include information on Art. 4 ICESCR in their reports.8 Some of this information is useful and gives an idea about states’ understanding of Art. 4;9 other information is less insightful, since it lists measures which the state concerned can take under its national emergency legislation and thus reveals confusion between limitations and derogations.10 For example, the Tajik state report lists all regulations which govern the state of emergency in Tajikistan at length.11 In addition, state reports on Art. 4 rarely specify limitations to ESC rights that are permitted in national law.12 All too often, states list possibilities to limit or derogate from civil and political rights in their reports on Art. 4 only,13 or suggest that they are in full compliance with Art. 4 explaining the scope of ‘derogations, restrictions or limitations; the circumstances justifying them; and the timeframe envisaged for their withdrawal’ in their common core documents to all UN treaty bodies. 7 Two of the rare exceptions are CESCR, List of Issues, Kyrgyzstan, E/C.12/Q/KYRG/1 (1999), para. 12; and Lichtenstein, E/C.12/Q/LIE/1 (2004); see also Ssenyonjo (2009), p. 100. 8 From the 89 state reports examined by the CESCR between April 2004 and November 2012, 36 directly mentioned Article 4 ICESCR, including the document submitted by UNMIK. 9 See infra, section 2.2. 10 Limitations are clearly legally distinct from derogations; for an elaboration of the differences between limitations and derogations see Müller (2009), p. 564. 11 CESCR, Initial Report—Tajikistan, E/C.2/TJK/1 (2006), paras. 124–175; similarly see e.g. Second Periodic Report—Nepal, E/C.12/NPL/2 (2007), paras. 110–113; Initial Report— Malta, E/1990/5/Add.58 (2003), paras. 41–45; Initial Report—Kuwait, E/1990/5/Add.57 (2003), paras. 67–70; Initial Report—People’s Republic of China, reporting on the implementation of the ICESCR in Macao Special Administrative Region, E/1990/5/Add.59 (2004), paras. 823–826; Third Periodic Report—Portugal, E/1994/104/Add.20 (1998), paras. 73–96; Combined Initial-Third Periodic Report—Chad, E/C.12/TCD/3 (2009), para. 63; and Third and Fourth Periodic Reports—Algeria, E/C.12/DZA/4 (2009), paras. 148–152. 12 Two of the rare exceptions are Brazil and Switzerland: CESCR, Second Periodic Report Report—Brazil, E/C.12/BRA/2 (2008), para. 169; and Initial Report—Switzerland, E/1990/5/Add.33 (1998), part IV and confirmed in the Swiss Second and Third Periodic Report, E/C.12/CHE/2–3 (2009), paras. 107–108; some detail is also given in the Chilean Third Periodic Report, E/1995/104/Add.26 (2003), para. 142; the Initial Report—Latvia, E/1990/5/Add.70 (2005), paras. 98–101; the document submitted by UNMIK, E/C.12/UNK/1 (2008), paras. 114–115; and the Initial-Third Periodic Report—Tanzania, E/C.12/TZA/1-3 (2011), paras. 49-50. 13 E.g. CESCR, Initial Report—Tajikistan, E/C.2/TJK/1 (2006), paras. 124–175. The fact that the Tajik report to the HRCttee contains a similarly long section on the Tajik emergency legislation is revealing in this respect, see HRCttee, Initial Report—Tajikistan, CCPR/C/TJK/2004/1 (2005), paras. 52–58; see also the other reports mentioned supra n. 11; and CESCR, Initial Report—Peru, E/1990/5/Add.29 (1996), paras. 114–122 (115); and Initial Report—Kazakhstan, E/C/12/KAZ/1 (2009), para. 139.

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without giving any details. The Philippines, for example reported that ‘the Philippine Government does not subject the rights provided under the Covenant to any limitations other than those determined by law. Such limitations—where they exist—are compatible with the nature of these rights and are solely for the purpose of promoting the general welfare in a free society’.14 Other states claim not to place any limitations on ESC rights.15 At times, these assertions are questionable. Occasionally, the Committee’s position on limitations of ESC rights can be inferred from its general comments.16 However, it rarely asks states to justify obvious limitations in accordance with the criteria of Art. 4 ICESCR in its ‘constructive dialogue’ with states parties.17 For example, in 2006 in its Concluding Observations on the Uzbek state report the CESCR merely voiced its concern about the decline in the annual per-capita spending on public health despite a rise in GDP.18 It did not require Uzbekistan to justify its policies in relation to each of the elements of Art. 4 ICESCR. More blatant examples concern the Committee’s Concluding Observations on Sudan and the Democratic People’s Republic of Korea.19 14 CESCR, Combined Second, Third and Fourth Periodic Reports—Philippines, E/C.12/ PHL/4 (2007), para. 76; similarly, Initial Report—Turkmenistan, E/C.12/TKM/1 (2010), para. 40; Second Periodic Report—Ecuador, E/1990/6/Add.36 (2002), para. 36; Initial Report—Egypt, E/1990/5/Add.38 (1998), paras. 71–74; Second Periodic Report—Venezuela, E/1990/6/Add.19 (1999), para. 26, stating that ‘Venezuela fully recognises and complies with the provisions of the statement in article 4 of the Covenant’. 15 CESCR, Third Periodic Report—Mexico, E/1994/104/Add.18 (1998), para. 52; Third Periodic Report—Morocco, E/1994/104/Add.29 (2005), para. 86; Third Periodic Report— New Zealand/Tokelau, E/C.12/NZL/3 (2011), para. 777; and Fifth Periodic Report—United Kingdom, E/C.12/GBR/5 (2008), holding that there was ‘nothing to report’ under Art. 4. 16 CESCR, General Comment 13 (1999), para. 42; General Comment 14 (2000), para. 28; and General Comment 7 (1997), para. 5 are the only General Comments that directly mention Art. 4 ICESCR. 17 One of the very rare direct references to Art. 4 ICESCR can be found in CESCR, Concluding Observations—China (Hong Kong Special Administrative Region (HKSAR)), E/C.12/1/Add.58 (2001), para. 40: ‘When formulating and implementing its policies on permanent residence and split families, HKSAR is urged to give the most careful attention to all the human rights dimension of the issue, including Articles 2(2), 3 and 10 of the Covenant. The Committee reminds HKSAR that any limitations in connection with Article 10 must be justified in relation to each element set out in Article 4.’ 18 CESCR, Concluding Observations—Uzbekistan, E/C.12/UZB/CO/1 (2006), para. 30; similarly e.g. Albania, E/C.2/ALB/CO/1 (2006), para. 33; Tajikistan, E/C.12/TJK/CO/1 (2006), paras. 35 and 41; Philippines, E/C.12/PHL/CO/4 (2008), para. 17; Angola, E/C.12/AGO/CO/3 (2008), para. 39; and Poland, E/C.12/POL/CO/5 (2009), para. 29. 19 CESCR, Concluding Observations—Sudan, E/C.12/1/Add.48 (2000), para. 25, where the Committee expressed ‘concern’ about the ‘bombardment of villages and camps of the civilian population, in the war zones in southern Sudan, including the bombing of schools and hospitals’. The Committee added that it was also ‘concern[ed] about the reported resort to the weapon of deprivation of food and the creation of a man-made famine as an



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The CESCR has, however, started to develop criteria by which it evaluates ‘retrogressive measures’ states may take or are forced to take when they face sudden resource constraints.20 Usually, it makes such an evaluation with reference to Art. 2(1) ICESCR, which requires progressive realisation of ESC rights in accordance with available resources. It seems that the CESCR does not consider these ‘retrogressive measures’ to be ‘limitations’ within the meaning of Art. 4 ICESCR. The reasonableness of distinguishing between ‘retrogressive measures’ for reasons of resource constraints and limitations of ESC rights for other reasons can be questioned; the relationship between Arts. 4 and 2(1) ICESCR is examined further below. 2.2. Article 4 ICESCR: An Analysis of the ICESCR’s General Limitation Clause Art. 4 ICESCR reads as follows: The States Parties to the present Covenant recognise that, in the enjoyment of those rights provided by the State in conformity with the present Covenant, the State may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.

Art. 4 ICESCR thus allows states to limit the rights contained in part III of the ICESCR.21 It restricts both the reasons for which ESC rights can be limited, and the way in which such limits can be effected. From the travaux préparatoires it is clear that Art. 4 was not meant to apply to restrictions a state may impose for reasons of lack of resources (retrogressive measures), since this issue was thought to fall under Art. 2(1) ICESCR.22 Nonetheless, instrument of war, coupled with the diversion of humanitarian food aid supplies from groups of the population in need.’ See also Concluding Observations—Democratic People’s Republic of Korea, E/C.12/1/Add.95 (2003), para. 21, where the CESCR expressed its concern ‘about the consequences of the widespread famine suffered by the country from the mid-1990s’; Democratic Republic of the Congo, E/C.12/COD/CO/4 (2009), para. 16; and Sri Lanka, E/C.12/LKA/CO/2–4 (2010), para. 28. In neither case the CESCR demanded justification under Art. 4 ICESCR or under possibly applicable derogation principles similar to those applicable to derogations from civil and political rights. 20 In particular in CESCR, General Comment 14 (2000), paras. 32 and 48; General Comment 13 (1999), para. 45; General Comment 15 (2002), paras. 19 and 42; General Comment 19 (2008), paras. 42 and 64; General Comment 18 (2005), paras. 21 and 34. See also Ssenyonjo (2009), p. 64. 21 This excludes the right to self-determination in Art. 1 and the non-discrimination provisions in Arts. 2(2) and 3 ICESCR from the limitation clause. 22 This is clear from the debates during the 234th-236th and 306th-308th meetings of the UN Commission on Human Rights in 1951 and 1952 which focused on the question of

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the debates in the UN Commission for Human Rights in 1951 and 1952 when substantive parts of the ICESCR were drafted indicate that the approach taken in Art. 4 is inherently linked to the notion of progressive realisation embodied in Art. 2(1) and with this to the nature of ESC rights.23 As mentioned, direct comments from states and the CESCR on Art. 4 are rare. That is why the following interpretation of this Article inter alia relies on the travaux préparatoires of the ICESCR. 2.2.1. The Sole Purpose of Limitations to ESC Rights: The ‘Promotion of General Welfare’ Like limitation clauses in other human rights treaties, Art. 4 ICESCR reflects the desire to give states flexibility in the necessary balancing of individual rights with public interests. A significant difference vis-à-vis limitation Articles of other human rights treaties is, however, that there is ‘solely’ one legitimate reason for which ESC rights can be limited: ‘for the purpose of promoting general welfare’. This makes limitations under Art. 4 ICESCR narrower than those of other human rights treaties, including the ESC/RESC.24 An examination of the drafting history of Art. 4 ICESCR reveals why no other purposes were incorporated. There was a narrow majority for including a general limitation clause into the draft Covenant in the UN Commission on Human Rights;25 however, several state representatives how ESC rights could be limited by legitimate interests of the community. See e.g. the explicit statement made by the UK representative, Mr Hoare, that ‘article 32 [now Art. 4] solved the problem of limitation which was not solved by article 1 [now Art. 2]’, Summary Record of the 308th meeting of the UN Commission on Human Rights, E/CN.4/SR.308 (1952), p. 5. Other representatives made similar statements, e.g. Mr Whitlam (Australia), ibid., p. 5; Mr Santa Cruz (Chile), ibid., p. 6; Mr Morozov (USSR), Summary Records of the 306th meeting of the UN Commission on Human Rights, E/CN.4/SR.306 (1952), p. 11; Mr Juvigny (France), Summary Record of the 307th meeting of the UN Commission on Human Rights, E/CN.4/SR.307 (1952), p. 5; and Mr Waheed (Pakistan), ibid., p. 13; see also Alston and Quinn (1987), p. 194. 23 This is obvious from the debate in the Commission that led to the inclusion of only one reason for which limitations of ESC rights are permitted; see infra, section 2.2.1. 24 Art. 31(1) ESC and Art. G RESC permit limitations which ‘are prescribed by law and are necessary in a democratic society for the protection of the rights and freedoms of others or for the protection of public interest, national security, public health, or morals’. It should be noted, however, that unlike the ICESCR, the ESC/RESC does not provide for ‘progressive realisation’ in accordance with available resources. This gives states less flexibility when implementing the ESC/RESC, and may therefore partly explain the inclusion of the broader limitation clause. 25 During the 308th meeting a vote taken on the question of whether the Commission wished to include a general limitation clause into the ICESCR was decided favourably by only 9 votes to 8, with one abstention, see Summary Record of the 308th meeting of the UN Commission on Human Rights, E/CN.4/SR.308 (1952), p. 8.



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successfully argued that limitations for reasons of public order, public safety or public morals were not as relevant to ESC rights as to civil and political rights and should not be permitted.26 To illustrate this point, it can be recalled that limitations for reasons of public order often affect for example the right to freedom of movement. When a society faces natural disasters, threats of terrorist attacks or NIACs which affect public order, movement can be restricted in order to guarantee people’s safety; and in severe cases the imposition of curfews can be justified.27 At such time, it seems unjustifiable to directly limit people’s right to health or food in the same way, even though the restriction of freedom of movement will undoubtedly affect people’s ability to enjoy their right to food and health. Arguably, this would have to be considered when evaluating the proportionality of the restrictions on the right to freedom of movement. These and other considerations resulted in a rejection of identical wording to Art. 29(2) UDHR as a limitation clause for the ICESCR, which would have allowed limitations ‘for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality [and] public order’ in addition to the purpose of promoting general welfare.28 The validity of this decision seems to be affirmed by the practical experiences of the ECSR supervising implementation of the ESC/RESC. The ESC/RESC contains a broad limitation clause, permitting restrictions for the ‘protection of the rights and freedoms of others or for the protection of 26 See e.g. statement by the Indian representative in Summary Record of the 234th meeting of the UN Commission on Human Rights, E/CN.4/SR.234 (1951), p. 23; similarly Mr Malik (Lebanon), ibid., p. 20; Mr Jevremovic (Yugoslavia), Summary Record of the 235th meeting of the UN Commission on Human Rights, E/CN.4/SR.235 (1951), p. 5; Mr Morosov (USSR), ibid., p. 7; Mr Waheed (Pakistan), ibid., p. 17; Mr Santa Cruz (Chile), Summary Record of the 307th meeting of the UN Commission on Human Rights, E/CN.4/ SR.307 (1952), p. 6; Mr Boratynski (Poland), ibid., p. 8; and Mr Ghorbal (Egypt), ibid., p. 12; see also the discussion by Alston and Quinn (1987), p. 202. 27 Nowak (2005), p. 278; see also the Siracusa Principles, E/CN.4/1984/4 (1984), paras. 22–24 on public order (ordre public); and Loockwood, Finn and Jubinsky (1985), pp. 56–63. 28 The proposal by the US in this respect (E/CN.4/610/Add.2), based on Art. 29 UDHR was amended accordingly during the 234th–236th meetings of the UN Commission on Human Rights in 1951 (see Summary Record of the 236th meeting, E/CN.4/SR.236 (1951), p. 14). France tried to reintroduce ‘respect for the rights and freedoms of others’ and ‘legitimate requirements of morality and public order’ as reasons for which ESC rights could be limited during the 306th-308th meetings of the UN Commission on Human Rights in 1952. But as it became obvious that there was no broad support for this, it withdrew its proposal (E/CN.4/L.76), (see Summary Records of the 308th meeting of the UN Commission on Human Rights, E/CN.4/SR.308 (1952), p. 7).

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public interest, national security, public health, or morals’.29 The majority of cases in which these provisions have been invoked are cases relating to the limitation of Arts. 5 and 6 ESC, which respectively set out the rights to organise and to collective bargaining.30 Art. 8 ICESCR contains the right to strike and the rights to form and join trade unions. It is noteworthy that Art. 8(1)(a) and (c) ICESCR explicitly allow for limitations to these rights ‘in the interests of national security or public order or for the protection of the rights and freedoms of others’. This is explicable by the fact the Art. 8 rights resemble civil and political rights more than any of the other rights in the ICESCR. This suggests that, in practice, it may not be necessary to permit limitations of other ESC rights for reasons beyond the promotion of general welfare, especially not for subsistence rights, such as the rights to food, health, housing or clothing. A closer look shall now be taken at the notion of ‘general welfare’ in the context of the ICESCR. As noted by Alston and Quinn, ‘general welfare’ is to be interpreted restrictively in the context of Art. 4 ICESCR.31 While the meaning of ‘general welfare’ is not elaborated on in the travaux préparatoires, the fact that limitations for reasons of maintaining public order and public morality were explicitly rejected during the drafting process, makes clear that the term ‘general welfare’ does not implicitly include these terms. The same is true for the notion of ‘national security’ which was never suggested as a reason for which ESC rights could be limited during the drafting process. Consequently, in the context of the ICESCR general welfare should be understood as referring primarily to the economic and social well-being of the people and the community.32 From this finding, it is clear that openended concepts like ‘national security’ or ‘economic development’ are not sufficient to justify limitations, unless the state can prove that in a specific situation these concepts are clearly identical with ‘the general welfare’.33 29 Art. 31(1) ESC and Art. G(1) RESC, quoted supra, n. 24. 30 Harris and Darcy (2001), p. 381. Some of the more recent decisions, however, discuss restriction from different rights of the ESC/RESC even though they do not necessarily directly refer to the ESC/RESC’s limitation Articles, e.g. ECSR, Complaint 48/2008, European Roma Rights Centre (ERRC) v Bulgaria, Decision on the Merits, 18 February 2009, paras. 37–44; and on Complaint 14/2003, European Roma Rights Centre (ERRC) v Greece, Decision on the Merits, 8 December 2006, paras. 29–30. 31 Alston and Quinn (1987), pp. 201–202. 32 See Study by Special Rapporteur Daes for the UN Sub-Commission on Human Rights, E/CN.4/Sub.2/432/Rev.2, 1983, pp. 123–124. See also p. 55, where she comments that ‘its [general welfare’s] purpose is to promote man’s dignity and well-being … the general welfare is something quite different from “reason of State”’; similarly see Alston and Quinn (1987), pp. 201–202; and Ssenyonjo (2009), p. 101. 33 Alston and Quinn (1987), p. 202; in this context, see also the statement of the Chilean representative (Mr Santa Cruz) when Art. 4 was drafted, holding that the limitation clause



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The burden of proving that they are not identical would rest with the state, and the CESCR would clearly have the mandate to review the state’s reasoning. For example, in a situation of IAC/NIAC a state might be able to justify non-discriminatory rationing of food if there was a general scarcity by arguing that this was necessary for maintaining ‘general welfare’, even if this would at the same time serve to maintain ‘public order’ through ensuring equitable distribution. Even though the CESCR has never commented directly on its understanding of ‘general welfare’, this finding seems to be supported by its General Comment on the Right to Health. With regard to national security or public order as possible grounds for limitations to the right to health, the Comment indicates that a state party which, for instance, restricts the movement of, or incarcerates, persons with transmissible diseases such as HIV/AIDS, refuses to allow doctors to treat persons believed to be opposed to a Government, or fails to provide immunization against the community’s major infectious diseases, on grounds such as national security or the preservation of public order, has the burden of justifying such serious measures in relation to each of the elements identified in Article 4.34

This would include an obligation to show that in the situation in which these limitations are imposed for reasons of ‘national security’ or ‘public order’, this is practically the same as imposing them for reasons of ‘promoting general welfare’ in the understanding set out above. The Committee also seems to share the view that references to broad concepts like ‘economic development’ cannot easily justify limitations of ESC rights, since policies adopted towards this end often limit ESC rights of certain individuals or groups without ‘promoting general welfare’. This is clear from the CESCR’s statements on national and international developmental policies (for example poverty reduction strategies or structural adjustment programmes) which are frequently implemented in the name of economic development, but disproportionately disadvantage already marginalised or disadvantaged groups.35 should not allow states to delay the ‘implementation of such rights as those to education, health and social security in order to concentrate all its resources on economic development, thus sacrificing the interests of the present generation to those of the next’ (Summary Record of the 235th meeting of the UN Commission on Human Rights, E/CN.4/SR.235 (1951), p. 13). 34 CESCR, General Comment 14 (2000), para. 28; similarly, General Comment 13 (1999), para. 42. 35 See e.g. CESCR, Concluding Observations—Egypt, E/C.12/1/Add.44 (2000), para. 10; Kyrgyzstan, E/C.12/1/Add.49 (2000), para. 29; CESCR, Statement on Globalisation and ESC Rights, May 1998, para. 7; and Statement on Poverty and the ICESCR, E/C.12/2001/10, 10 May

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Another interesting question in this context would be whether states could argue that in times of armed conflict, ‘general welfare’ is more effectively promoted by spending on defence including on counterinsurgency operations, rather than on food, health care, housing or social security programmes. In line with the above, the fact that ‘national security’ and ‘public order’ are excluded from the purposes for which states are permitted to limit ESC rights seems to suggest that this is difficult to justify if the state cannot show that upholding national security and public order is clearly tantamount to upholding ‘general welfare’. This may be possible, in particular where a state faces an attack by a foreign aggressor.36 But limitations affecting the minimum core of each of the rights would not be permitted, since they would go against ‘the nature of these (ESC) rights’.37 The CESCR has indirectly touched upon aspects of this question under Art. 2(1) ICESCR when discussing the justification of retrogressive measures occurring due to lack of resources, which it has not considered a limitation falling under Arts. 4 ICESCR. Thus, ultimately this question demands finding a reasonable interplay in the application of Arts. 4 and 2(1) ICESCR, which shall be discussed below (section 2.3). 2.2.2. ‘In a Democratic Society’ The qualification that limitations must be acceptable ‘in a democratic society’ further restricts the scope of limitations permitted under Art. 4 ICESCR, stating conditions in which the decision on what constitutes ‘general welfare’ must be taken. It adds an additional, independent standard of legitimacy that limitations must meet.38 As noted by the Greek representative during the drafting process of the ICESCR, the reference to a ‘democratic society’ in the general limitation clause was of ‘vital importance … since in its absence … [the limitation clause] might very well serve the ends of dictatorship’.39 With regard to the ECHR, the phrase ‘in a democratic society’ has been described as ‘heavy with uncertainty’,40 which seems to be of even greater 2001, para. 11; see also Limburg Principles (1986), para. 52, holding that ‘promoting general welfare’ is to be understood as ‘furthering the well-being of the people as a whole’ (emphasis added). 36 This question is further discussed in chapter VII, section 3.1.1. 37 See the discussion infra, section 2.2.4. 38 Garibaldi (1984), p. 240; see also Svensson-McCarthy (1998), p. 108; and Ssenyonjo (2009), p. 101. 39 Summary Record of the 235th meeting of the UN Commission on Human Rights, E/CN.4/SR.235 (1951), p. 20. 40 Harris et al (2009), p. 349.



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significance for the international context of the ICCPR and the ICESCR since there is ‘no single model of a democratic society’.41 For a long time, the discussion over what constitutes a ‘democratic society’ was seized by ideological differences between Communist and Western states during the Cold War.42 The different understandings of democracy also made it difficult to transfer principles the ECtHR had begun to develop regarding the clause ‘in a democratic society’, in its jurisprudence on the ECHR to the international context of the ICCPR and ICESCR. However, since the end of the Cold War these ideological confrontations have lost most of their relevance. Moreover, the meaning of ‘democratic society’ in the UDHR, the ICCPR and ICESCR was always understood rather to refer to ‘some system of political principles that is associated with Western thought and traditions’,43 i.e. a representative system, and not to a form of ‘people’s or socialist democracy’ as had been proposed by the Soviet Union. The HRCttee and the CESCR in their general comments, concluding observations and other documents hardly ever interpret the clause ‘in a democratic society’. When referring to the phrase ‘necessary in a democratic society’ the HRCttee usually confines itself to discuss the principle of proportionality under the term ‘necessary’44 without commenting on the requirements of a ‘democratic society’. This is partly explicable by the fact that the HRCttee has not yet adopted general comments on Arts. 21 and 22 ICCPR; the only provisions of the ICCPR which contain the condition that limitations must be ‘necessary in a democratic society’. The ECtHR, by contrast, has brought some clarity to this phrase by identifying certain characteristics of a ‘democratic society’ in its jurisprudence. All limitation clauses of the ECHR include the phrase ‘necessary in a democratic society’. These characteristics can be used by analogy to interpret the same phrase in Art. 4 ICESCR, in particular against the background of 41 Siracusa Principles (1984), para. 21; Limburg Principles (1986), para. 55; see also Garibaldi’s remark that ‘democracy has meant and means many different things to many different people’ (Garibaldi (1984), p. 42); and Kiss (1981), p. 307. 42 Garibaldi (1984), pp. 53–66; this is also clear from the Study by Special Rapporteur Daes, E/CN.4/Sub.2/432/Rev.2 (1983), pp. 127–128. 43 Referring to the travaux préparatoires of the UDHR, the ICCPR and the ICESCR, Garibaldi (1984), p. 68, finds that the majority of the delegations involved in the drafting process rejected the view that the then communist systems might qualify as a ‘democratic society’. All attempts by the Soviet Union to replace ‘democratic society’ with the ‘the requirements of a democratic state’ or ‘in the interests of democracy’ failed. 44 HRCttee, General Comment 27 (1999), para. 11; and Individual Communication (633/95), Gauthier v Canada (1999), para. 11.8.

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the de-ideologisation of the term ‘democracy’.45 It should nonetheless be noted that despite the end of the ideological confrontations of the Cold War, the phrase ‘in a democratic society’ does not entail requiring a state to be a ‘democratic society’ in order to become or remain a party to a universal human rights treaty containing this phrase.46 The persistence of different forms of democracy and other systems of government in countries around the world would make this an unreasonable requirement. The ECtHR has identified ‘pluralism, tolerance and broad-mindedness’ as ‘hallmarks’ of a democratic society.47 It has also pointed to the importance of political expression as well as the protection of ‘plural centres of power and influence’ through upholding freedom of association and expression as vital elements of a ‘democratic society’.48 Transferring this to the context of Art. 4 ICESCR would imply that decisions to limit ESC rights should be based on some consultation process (as inclusive as possible), should not be ordered unilaterally and should be subject to popular control.49 Even if not directly referring to Art. 4, the CESCR has noted when assessing states’ steps toward progressive realisation of ICESCR rights, it would place ‘great importance on transparent and participative decision-making processes at the national level’.50 Arguably, such a decision-making process is one requirement of the provision ‘in a

45 This is supported by Deas’ analysis of the meaning of the term ‘democratic society’ in the UDHR, the ICCPR and the ICESCR, which highlights similar elements as the ECtHR in its jurisprudence. She holds that ‘regardless of how democracies may call themselves— direct, representative, Western, liberal, socialist, organic, bourgeois or popular—they are only real and pure democracies when they guarantee and respect human rights and fundamental freedoms, including in particular the right of everyone to participate in political life at the local and the national level by means of free elections, enabling each people to choose freely and periodically its own government, and recognising the activities of pluralist political institutions’ (Study by Special Rapporteur Daes, E/CN.4/Sub.2/432/Rev.2 (1983), pp. 127–128). 46 Garibaldi (1984), p. 27; and Alston and Quinn (1987), p. 204. 47 E.g. ECtHR, Young, James and Webster v UK, Appl. Nos. 7601/76; 7806/77, Judgment, 13 August 1981, para. 63; see also Harris et al (2009), p. 352, discussing other relevant judgments of the ECtHR; Jayawickrama (2002), p. 188, citing cases from different countries. 48 Harris et al (2009), p. 352; and Ssenyonjo (2009), p. 101. 49 See Garibaldi (1984), p. 204; and Study by Special Rapporteur Daes, E/CN.4/Sub.2/432/ Rev.2 (1983), p. 128. 50 CESCR, Statement on “Maximum of Available Resources”, E/C.12/2007/1, 21 September 2007, para. 11. This is confirmed in e.g. General Comment 14 (2000), paras. 11, 17 and 54; General Comment 15 (2002), para. 48; and General Comment 19 (2008), paras. 26, 42(c), 46 and 69. It is also in line with Toebes’ observation regarding the right to health that the Committee has generally disapproved of any coercive policies relating to the health of populations, Toebes (1999), p. 143.



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democratic society’, with regard to decisions on limiting ESC rights in order to promote general welfare. 2.2.3. ‘Determined by Law’ Art. 4 ICESCR further requires that limitations on ESC rights are ‘determined by law’. Since again there is little indication of the CESCR’s interpretation of this phrase, parallels can be drawn with the understanding of ‘law’ under other human rights treaties, especially the ICCPR and the ECHR which also require that limitations are ‘determined by law’, ‘prescribed by law’ or imposed ‘in accordance with the law’.51 The HRCttee and the ECtHR have interpreted these phrases in similar ways, and there is no reason why there should be a different interpretation for the ICESCR. The CESCR seems to share this view, since in its General Comment on the Right to Adequate Housing it referred extensively to the HRCttee’s understanding of ‘law’.52 The condition ‘determined by law’ obliges states to provide for any limitation of human rights in national laws, which must be consistent with relevant human rights treaties, and be in force when the limitation is imposed.53 In its General Comment 15 the CESCR established, for example, that ‘any action that interferes with an individual’s right to water [must be] performed in a manner warranted by law, compatible with the Covenant’.54 The ‘law’ can be statute law, but also judge-made law or law made by an international organisation.55 The ECtHR further clarified the qualities a national rule must reach in order to be considered as ‘law’: it must be publicly available (‘adequately accessible’), and must be ‘formulated with sufficient precision to enable the citizen to regulate 51 On the meaning of the slight differences in these wordings in the context of the ICCPR see Nowak (2005), p. 272. 52 CESCR, General Comment 7 (1997), para. 14, referring inter alia to the HRCttee’s General Comment 16 (1988). 53 See e.g. HRCttee, General Comment 19 (1990), para. 4; General Comment 16 (1988), para. 4; Siracusa Principles (1985), para. 15; Ssenyonjo (2009), pp. 100–101; with regard to the ECHR, see Harris et al (2009), p. 334. 54 CESCR, General Comment 15 (2002), para. 56; and for the context of evictions as limitations to the right to housing see General Comment 7 (1997), paras. 9, 11 and 14. 55 Harris et al (2009), pp. 344–45 analysing relevant jurisprudence of the ECtHR; also Nowak (2005), pp. 272–273. This understanding of ‘law’ also coincides with the understanding of the drafters of the ICESCR: during the 236th meeting of the UN Commission on Human Rights in 1951 the French representative (Mr Cassin) noted that ‘“the law” was not restricted to statute law. By “the law” was meant the whole body of legal precedent and practice…,’ Summary Record of the 236th meeting of the UN Commission on Human Rights, E/CN.4/SR.236 (1951), p. 9.

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his conduct’56 (sufficiently precise). This also includes that laws do not give unlimited discretion to the authorities charged with enforcing them.57 2.2.4. ‘Compatible with the Nature of these Rights’ Art. 4 ICESCR sets another important boundary to states’ scope for limiting ESC rights, unique among the limitation clauses of human rights treaties: the requirement that any limitation must be ‘compatible with the nature of these [ESC] rights’. This raises the question of how to determine the ‘nature of these rights’, and whether there are certain rights which, by their very nature, cannot be limited. The travaux préparatoires only indicate that the Chilean representative who proposed this phrase wished to ensure that the impact of any restrictions of the ICESCR was studied with regard to each right proclaimed in the Covenant individually to prevent their nullification.58 Although the CESCR has never directly referred to this phrase in its general comments or concluding observations on state reports, several of its statements give insight into its likely interpretation of this phrase. A number of state reports on Art. 4 to the CESCR are also revealing. In general, the approach of the CESCR points toward ‘minimum essential levels’ and corresponding minimum core obligations under each ESC right that were discussed in chapter IV as representing the ‘nature of these rights’. Where ESC rights have de facto been limited, including in situations of armed conflict and economic difficulties, the CESCR has called on states to guarantee the enjoyment of ‘basic economic, social and cultural rights, as part of minimum standards of human rights’;59 the provision of ‘basic services, including health and education infrastructure’;60 and

56 ECtHR, Sunday Times v UK (No. 1), Appl. No. 6538/74, Judgment, 26 April 1979, para. 49, analysed (among other cases) by Harris et al (2009), pp. 134 and 345; see also Siracusa Principles (1985), para. 17, referring to the ICCPR: ‘legal rules limiting the exercise of human rights shall be clear and accessible for everyone’; and Limburg Principles (1986), paras. 48, 50–51. 57 Harris et al (2009), pp. 346–348; HRCttee, General Comment 27 (1999), para. 13. 58 Summary Record of the 235th meeting of the UN Commission on Human Rights, E/CN.4/SR.235 (1951), p. 13. The Chilean proposal was adopted by the Commission without any further discussion, see Summary Record of the 236th meeting of the UN Commission on Human Rights, E/CN.4/SR.236 (1951), p. 11. 59 CESCR, Concluding Observations—Israel, E/C.12/1/Add.90 (2003), para. 31; similarly Lebanon, E/C.12/1993/10, (1993), para. 13; Iraq, E/C.12/1/Add.17 (1997), paras. 10 and 25; Zambia, E/C.12/1/Add.106 (2005), para. 10; and Colombia, E/C.12/COL/CO/5 (2010), para. 7. 60 CESCR, Concluding Observations—Russian Federation, E/C.12/1/Add.94 (2003), para. 38.



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respect for minimum core obligations in the context of developmental policies.61 In its General Comment on the Right to Water the CESCR found that an individual shall ‘under no circumstances’ be deprived of ‘the minimum essential level of water’.62 ‘Under no circumstances’ includes situations in which states may be permitted to impose limitations for the ‘promotion of general welfare’. Other statements of the Committee in general comments show that it regards non-fulfilment of minimum core obligations as a violation of corresponding core rights.63 This supports the idea that limitations of minimum core obligations are not permitted, supposedly because this goes against the ‘nature of these rights’. It has however been noted by South African writers that it might be unrealistic to require states not to limit internationally-defined minimum core obligations, in particular those which are defined broadly by the CESCR and the realisation of which require considerable resources, like the minimum core right to health. They therefore hold that limitations of the minimum core of rights might be possible if the government provides proof that it truly lacks the capacity and resources to realise minimum core obligations at a given point in time.64 The South African authors assume that these limitations of the minimum core have to be imposed because of resource constraints and not for other reasons—an issue discussed in greater detail below.65 Nonetheless, here it shall be argued that at least nationally-defined minimum core obligations can be regarded as representing ‘the nature of these [ESC] rights’ and that they cannot, therefore, be limited. As discussed in chapter IV, the scope of nationally-defined minimum core rights/obligations reflects the particularities of a specific country, including the resources available to the government, and their implementation should therefore be realistic at all times. Any other understanding of the phrase ‘compatible with the nature of these rights’ would also contradict the rationale which underlay the 61 CESCR, Statement on Poverty and the ICESCR, E/C.12/2001/10, 11 May 2001, para. 17. 62 CESCR, General Comment 15 (2002), para. 56; similarly, General Comment 14 (2000), para. 47. 63 CESCR, General Comment 19 (2008), para. 65; General Comment 15 (2002), para. 40; General Comment 14 (2000), para. 47. As argued in chapter IV, section 4.3, this has to be understood in relative terms: as an obligation on states to establish a pragmatic national minimum core that is guided by the internationally-defined minimum cores set out in the CESCR’s general comments. 64 Bilchitz (2003), pp. 16–18; Pieterse (2006), p. 486; Iles (2004), p. 458; Moellendorf (1998), pp. 331–332; and Liebenberg (2002), p. 188. 65 Infra, section 2.3.2.

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adoption of the minimum core approach by the CESCR, namely to prevent states from using the notion of progressive realisation in accordance with available resources to escape any meaningful obligation.66 Thus, at least a nationally-defined pragmatic minimum core of each of the ESC rights cannot be subjected to limitations. The HRCttee has made similar statements regarding limitations of civil and political rights. In its General Comment 27, for instance, it found that states which impose restrictions to freedom of movement under Art. 12(3) ICCPR shall ‘always be guided by the principle that the restrictions must not impair the essence of the right’.67 Referring to the ICESCR, the Limburg Principles comment on Art. 4 ICESCR that the requirement of compatibility ‘with the nature of the right’ prohibits limitations that ‘jeopardise the essence of these rights’.68 The ECSR seems to share this view as well. It held that restrictions must be read ‘in such a manner as to preserve intact the essence of the right’.69 Several states also seem to follow the interpretation that minimum core obligations/rights should not be limited under Art. 4 ICESCR. Even if they do not explicitly state that they regard minimum core obligations as representing the ‘nature of these rights’, the fact that they report on these issues under Art. 4 ICESCR allows such a conclusion. For example, Switzerland in its initial report to the CESCR noted that any restriction of fundamental rights guaranteed in the Swiss constitution must ‘respect the essence (the “hard core”) of the fundamental right and not void the latter of its substance’.70 It further elaborates that the legislature can enact rules limiting fundamental rights, but that ‘its competence is restricted by the intangible core of those rights, and if it were to take measures voiding a right of its substance it would be violating the guarantee of that right’.71 The Brazilian state report to the ICESCR displays a similar reasoning in its 66 CESCR, General Comment 3 (1990), para. 9. 67 HRCttee, General Comment 27 (1999), para. 13; also General Comment 31 (2004), para. 6; and General Comment 22 (1993), para. 8. 68 Limburg Principles (1986), para. 49; and CESCR, General Comment 14 (2000), para. 28; see also Ssenyonjo (2009), p. 101. 69 ECSR, Complaint 14/2003, European Roma Rights Centre (ERRC) v Greece, Decision on the Merits, 8 December 2004, para. 29 (emphasis added); similarly, Complaint 42/2007, International Federation of Human Rights Leagues (IFHR) v Ireland, Decision on the Merits, 3 June 2008, para. 19; and Complaint 48/2008, Sindicato dos Magistrados do Ministério Publico (SMMP) v Portugal, Decision on the Merits, 3 December 2008, paras. 40–41. 70 CESCR, Initial Report—Switzerland, E/1990/5/Add.33 (1998), part IV; and reiterated in the Swiss Second and Third Periodic Report, E/C.12/CHE/2–3 (2009), para. 107. 71 Ibid.; see also judgment of the Swiss Federal Court, V v Einwohnergemeinde X und Regierungsrat des Kantons Bern, BGE/ATF 121 I 367, 27 October 1995, in particular Erwägung 2, para. b); and Häfelin, Haller and Keller (2012), p. 296.



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paragraphs on the implementation of Art. 4 in Brazil. Discussing several judgements of the Brazilian Constitutional Court, the report finds that the judiciary may intervene to ensure ESC rights when unjustifiable state inertia or abusive governmental behaviour ‘affect the irreducible set of minimum conditions necessary to a life in dignity and essential to an individual’s very survival’.72 Relevant academic literature also suggests that compatibility of limitations to ESC rights with ‘the nature of these rights’ should exclude limitations to (nationally-defined) minimum core rights. For example, Rosas and Sandvik-Nylund argue that Art. 4 ICESCR would preclude a ‘departure from a minimum standard of livelihood and health’.73 Alston found in 1984 that ‘any proposed limitations on the right to food which could result in death by starvation are clearly unacceptable’.74 Others have identified the minimum core of rights as the ‘limit of limits’.75 As noted, especially with regard to subsistence rights, minimum core obligations/rights match vital interests of individuals that are important for their survival.76 It is difficult to imagine limitations to the minimum core of the right to health and food (i.e. access to essential primary health care and to an amount of food to be free from hunger) that would be consistent with the very nature of these rights. This is in line with the general understanding that the ‘power to impose restrictions on fundamental rights is essentially a power to “regulate” the exercise of these rights, not to extinguish them’.77 Clearly, however, more work needs to be done to identify precise criteria that can be applied— together with the other requirements of Art. 4 ICESCR discussed—to determine when exactly encroachments of different nationally- and internationally-defined minimum core rights have occurred. The CESCR broke the first ground in that regard in its General Comment 7 on the Right to Adequate Housing/the Prohibition of ‘Forced Evictions’.78 72 CESCR, Report—Brazil, E/C.12/BRA/2 (2008), paras. 169–170; for similar reasoning see Initial Report—Serbia and Montenegro, E/1990/5/Add.61 (2003), para. 24; and Third Periodic Report—Chile, E/1995/104/Add.26 (2003), para. 142. Even though their reports do not mention this, other national jurisdictions take similar approaches: see the cases and other sources cited in chapter IV, section 4.3.2. 73 Rosas and Sandvik-Nylund (2001), p. 412. 74 Alston (1984), p. 21. 75 Örücü (1986). 76 See chapter IV, section 4.2. (including ns. 37 and 69–72) and section 4.3.1. 77 Jayawickrama (2002), p. 187, including related footnotes referring to case law from different countries; and Ssenyonjo (2009), p. 100. 78 CESCR, General Comment 7 (1997), para. 15: ‘The Committee considers that the procedural protections which should be applied in relation to forced evictions include: (a) an

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Beyond the question of whether the phrase ‘the nature of these rights’ can be understood as excluding limitations that touch upon minimum core obligations under ESC rights, Alston and Quinn point out that the phrase clearly precludes limitations which sweepingly cover all or many ESC rights. This is so unless a state can show that these measures are in conformity with the nature of all rights of the ICESCR, which is rather unlikely. It also suggests that the burden of proof to demonstrate that limitations do not interfere with the very nature of ESC rights lies with the state.79 2.2.5. Proportionality The discussion on the prohibition of limitations which conflict with the very nature of each of the ESC rights already points to the question of the proportionality of limitations. As with limitations imposed on civil and political rights under the ICCPR and the ECHR, limitations under Art. 4 ICESCR should be proportionate.80 The ‘jurisprudence’ of the HRCttee, the ECtHR and the ECSR makes obvious that ‘the interference [limitation] must correspond to a pressing social need and, in particular, that it is [must be] proportionate to the legitimate aim pursued’.81 As stated, the only legitimate aim under the ICESCR is the ‘promotion of general welfare’. The ECtHR has further found with regard to the principle of proportionality that the more important the right is for the protection of human dignity, the more states will be required to demonstrate that there exists a opportunity for genuine consultation with those affected; (b) adequate and reasonable notice for all affected persons prior to the scheduled date of eviction; (c) information on the proposed evictions, and, where applicable, on the alternative purpose for which the land or housing is to be used, to be made available in reasonable time to all those affected; (d) especially where groups of people are involved, government officials or their representatives to be present during an eviction; (e) all persons carrying out the eviction to be properly identified; (f) evictions not to take place in particularly bad weather or at night unless the affected persons consent otherwise; (g) provision of legal remedies; and (h) provision, where possible, of legal aid to persons who are in need of it to seek redress from the courts.’ See also the observations by Langford (2008), pp. 14–17. 79 Alston and Quinn (1987), p. 201; regarding the burden of proof see also CESCR, General Comment 14 (2000), para. 28. 80 Even if not directly referring to Art. 4 ICESCR, this is clear from CESCR, General Comment 7 (1997), para. 14. 81 E.g. ECtHR, Olsson v Sweden, (No. 1), Appl. No. 10465/83, Judgment, 24 March 1988, para. 67; and Chassagnou v France, Appl. Nos. 25088/94; 28331/95; 28443/95, Judgment (Grand Chamber), 29 April 1999, para. 113; see also the analysis by Harris et al (2009), pp. 10–11 and 349; HRCttee, General Comment 22 (1993), para. 8 and General Comment 31 (2004), para. 6; and ECSR, Complaint 8/2000, Quaker Council for European Affairs (QCEA) v Greece, Decision on the Merits, 27 April 2001, para. 25; see also Ssenyonjo (2009), p. 101.



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pressing social need for an interference.82 In line with the findings above on the ‘nature of ESC rights’, a limitation conflicting with nationallydefined minimum core obligations/rights cannot be regarded as proportionate, since arguably there will never be a proportionate relationship between the severe restriction of the rights of individuals and the ‘general welfare’ sought. Further requirements of the principle of proportionality are, firstly, the appropriateness of the means—that any limitation of an individual right must be appropriate to achieve the intended aim (here the promotion of general welfare),83 and secondly the requirement to apply the most lenient means to achieve the protection of a legitimate public interest by limiting a particular right.84 The latter criterion has been established by the CESCR, observing that ‘limitations must be proportional, i.e. the least restrictive alternative must be adopted where several types of limitations are available’,85 and that limitations should be ‘of limited duration and subject to review’.86 2.3. Understanding Article 4 in the Context of the ICESCR as a Whole: The Relationship between Articles 4 and 2(1) ICESCR As mentioned above, it is clear from the travaux préparatoires that Art. 4 on limitations was not meant to apply to retrogressive measures taken due to resource constraints in the progressive implementation of ESC rights. Such measures were rather to be dealt with under Art. 2(1) ICESCR.87 It appears that the CESCR follows this reading, since, when discussing states’ obligation to progressively realise ESC rights under Art. 2(1) ICESCR, it has started to develop criteria to evaluate retrogressive measures taken due to 82 See e.g. the ECtHR’s finding in Dudgeon v UK, Appl. No. 7525/76, Judgment, 22 October 1981, para. 52 where the interference was with ‘a most intimate aspect of private life’ requiring that ‘there must exist particularly serious reasons before interferences on the part of public authorities can be legitimate for the purposes [of Article 8(2) ECHR]’; discussed, among other cases, in Harris et al (2009), pp. 351–352; see also Iles (2007), pp. 82–85, analysing the South African context. 83 HRCttee, General Comment 27 (1999), para. 14; Nowak (2005), p. 275; and for the ECtHR’s approach see e.g. Kokkinakis v Greece, Appl. No. 14307/88, Judgment, 25 May 1993, para. 49, discussed in Harris et al (2009), p. 359. 84 HRCttee, General Comment 27 (1999), para. 14; Nowak, ibid.; and for the ECtHR’s analogous findings see Harris et al ibid., analysing Campbell v UK, Appl. No. 13590/88, Judgment, 25 March 1992, para. 48; and Marckx v Belgium, Appl. No. 6833/74, Judgment, 13 June 1979, para. 40. 85 CESCR, General Comment 14 (2000), para. 42. 86 Ibid.; and General Comment 7 (1997), para. 14. 87 See the quotes above from the travaux préparatoires, supra n. 22.

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resource scarcities;88 it has never explicitly referred to Art. 4 ICESCR in this context. In the following section it will be argued that it is unreasonable to make a distinction between on the one hand, retrogressive measures in the progressive realisation of ESC rights because of resource constraints, evaluated with reference to Art. 2(1) ICESCR; and on the other hand limitations of ESC rights for other reasons, evaluated against the criteria of Art. 4 ICESCR. Indeed, it is often impossible to draw this distinction in practice. It will be argued that a unified standard should be applied for evaluating all limitations, including retrogressive measures—namely the criteria just set out as required under Art. 4. A brief comparison between the criteria of Art. 4 and the criteria developed by the CESCR to evaluate retrogressive measures will show that this is not unrealistic, since the requirements of the schemes are not far from one another. This will also establish a sensible contextual relationship between Arts. 2(1) and 4 ICESCR and simplify monitoring ESC rights implementation. Before this is done it shall be noted that in all its recent general comments and statements the CESCR has emphasised that there is a strong presumption of impermissibility of retrogressive measures taken in relation to the rights in the ICESCR.89 If retrogressive measures are unavoidable, the state has the burden of proving that they have been introduced only after the criteria discussed below have been met. This enables the Committee to distinguish between the inability and the unwillingness of states to avoid retrogressive measures, a distinction that the Committee has repeatedly identified as essential.90 2.3.1. Reasons for Limitations and Retrogressive Measures Under Art. 4 ICESCR the only reason for limiting ESC rights is the ‘promotion of general welfare’ which, as argued above, usually excludes limitations for reasons of ‘national security’, ‘public order’ and ‘public morals’. The general comments already mentioned, and a statement of the CESCR made during the drafting of the Optional Protocol to the ICESCR on individual communications to the Committee, reveal that retrogressive

88 See the CESCR’s General Comments cited supra, n. 20; and CESCR, Statement on “Maximum of Available Resources”, E/C.12/2007/1, 21 September 2007, para. 10. 89 CESCR, General Comment 13 (1999), para. 45; General Comment 14 (2000), para. 32; General Comment 15 (2002), para. 19; and General Comment 19 (2008), para. 42. 90 E.g. CESCR, General Comment 12 (1999), para. 17; General Comment 14 (2000), para. 47; and General Comment 15 (2002), para. 41.



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measures under Art. 2(1) can be justified by resource constraints.91 However, the reasons for which these resource constraints occur seem to be relevant for the justification of retrogressive measures. In the statement of the Committee on the drafting of an Optional Protocol it indicated that it would consider several bases when evaluating state parties’ claims justifying retrogressive measures due to resource constraints. Evaluation would be on a country-by-country basis in the light of objective criteria such as: a) The country’s level of development; b) The severity of the alleged breach, in particular whether the situation concerned the enjoyment of the minimum core content of the Covenant; c) The country’s current economic situation, in particular whether the country was undergoing a period of economic recession; d) The existence of other serious claims on the State party’s limited resources; for example, resulting from a recent natural disaster or from recent internal or international armed conflict; e) Whether the State party had sought to identify low-cost options; and f) Whether the State party had sought cooperation and assistance or rejected offers of resources from the international community for the purposes of implementing the provisions of the Covenant without sufficient reason.92

It seems to flow from point d) that the CESCR is ready to recognise that states facing armed conflicts can justify retrogressive measures resulting from the diversion of resources from the implementation of ESC rights to the fighting of an IAC/NIAC. This approach is also obvious from several concluding observations on state parties’ reports, in which the Committee recognised the additional difficulties that states facing armed conflicts have in implementing ESC rights, and took these difficulties into account when formulating its recommendations.93 The same is true for the context of natural disasters or economic recession.94 91 See supra n. 20. 92 CESCR, Statement on “Maximum of Available Resources”, E/C.12/2007/1, 21 September 2007, para. 10; see also the analysis by Ssenyonjo (2009), p. 64. 93 E.g. CESCR, Concluding Observations—Armenia, E/C.12/1/Add.39 (1999), paras. 3, 6 and 7; Bosnia and Herzegovina, E/C.12/BHI/CO/1 (2006), para. 7; Sri Lanka, E/C.12/1/Add.24 (1998), para. 5; Russian Federation, E/C.12/1/Add.94 (2003), para. 10; Kyrgyzstan, E/1990/5/ Add.42 (1999), para. 11; Guatemala, E/C.12/1/Add.93 (2003), para. 9; Afghanistan, E/C.12/ AFG/CO/2–4 (2010), para. 12; Chad, E/C.12/TCD/CO/3 (2009), para. 7; and Cambodia, E/C.12/KHM/CO/1 (2009), para. 11; see also Riedel (2010), p. 361. 94 E.g. CESCR, Concluding Observations—Jordan, E/C.12/1/Add.46 (2000), para. 27; Mongolia, E/C.12/1/Add.47 (2000), para. 10; El Salvador, E/C.12/SLV/CO/2 (2007), para. 8; and Nicaragua, E/C.12/NIC/CO/4 (2008), para. 9.

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However, it is not clear whether the Committee would accept justifications for retrogressive measures solely based on the existence of an armed conflict and the connected necessity to divert resources towards war efforts. The relatively long list of other criteria above makes this rather unlikely. Such justifications might also ignore the fact that states frequently bear some responsibility for the outbreak of an IAC/NIAC: it is not uncommon that armed conflicts are a consequence of insufficient or discriminatory implementation of ESC rights as well as civil and political rights.95 In its recent Concluding Observations on the Democratic Republic of the Congo the CESCR ‘acknowledge[d] the persistent instability and recurrent armed conflicts in some of the State party’s provinces which pose great challenges to the State’s ability to fulfil its obligations under the Covenant’, but voiced its concern ‘about the continuous decrease over the past decade of the resources allocated to social sectors, notably health and social protection, whereas budgetary allocations to defence and public security have increased considerably to reach 30% of the State expenditures’. This led the Committee to a rare finding ‘that mismanagement of international cooperation aid and unbalanced budgetary allocations constitute serious breaches in the State party’s obligations under article 2.1’,96 despite on-going armed conflicts. The CESCR has also criticised other states for significantly increasing their military expenditure while at the same time decreasing their spending on health and education,97 in line with the Committee’s general presumption that retrogressive measures are prohibited. Thus, this short discussion on reasons for limitations under Art. 4 and reasons for resource constraints which may result in retrogressive measures can be concluded with the observation that under the CESCR’s current approach, states enjoy a wider discretion when they invoke resource constraints under Art. 2(1). For instance, while limitations of ESC rights in times of war may not be justified under Art. 4 if a state cannot show that they ‘promote general welfare’, under Art. 2(1) states are given an 95 See generally Thoms and Ron (2007). On p. 704 they argue that violations of ESC rights and discrimination rarely directly cause civil wars, but that they ‘function as underlying causes of conflict, creating the deep grievances and group identities that may, under some circumstances, motivate collective violence’. 96 CESCR, Concluding Observations—Democratic Republic of the Congo, E/C.12/COD/ CO/4 (2009), para. 16; and Colombia, E/C.12/COL/CO/5 (2010), para. 7, go in a similar direction. 97 CESCR, Concluding Observations—Algeria, E/C.12/1/Add.71 (2001), para. 23; and E/C.12/DZA/CO/4 (2010), para. 18; and indirectly, Syrian Arab Republic, E/C.12/1/Add.63 (2001), para. 10; see also the remarks by Toebes (1999), p. 110.



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opportunity to invoke resource constraints resulting from the war effort to justify retrogressive measures without fulfilling this requirement. It is, however, questionable whether the CESCR accepts the existence of an armed conflict alone as a legitimate reason for retrogressive measures. Against this background, it seems reasonable to require that where they face severe resource constraints for whatever reason, and retrogressive measures are truly unavoidable, states follow the concept of ‘general welfare’ of Art. 4 ICESCR.98 This concept can guide states on where retrogressive measures should be taken so that ‘general welfare’ suffers as little as possible in the prevailing circumstances. This is how one can understand the CESCR’s statement that retrogressive measures must be ‘fully justified by reference to the totality of the rights provided for in the Covenant’, as well as their introduction only after the ‘most careful consideration of all alternatives’, including seeking to identify ‘low-cost options’ and mobilisation of international assistance.99 All these conditions aim at ensuring as little damage to ‘general welfare’ as possible. Thus, while there is an inherent contradiction in stating that retrogressive measures prompted by scarce resources are only justified when they ‘promote general welfare’, it can be expected that the notion of ‘general welfare’ is still taken into account. It seems appropriate to require states to organise retrogressive measures in a way that they limit the erosion of general welfare as effectively as possible. 2.3.2. Respect for Minimum Core Rights/Obligations It has been shown above that under Art. 4 ICESCR limitations to (in particular nationally-defined) minimum core obligations/rights, cannot be justified, provided we follow the understanding that minimum core obligations describe ‘the nature of these (ESC) rights’. From the Committee’s statements it is not entirely clear whether it accepts that very severe resource constraints leading to retrogressive measures can justify the nonimplementation of minimum core obligations under Art. 2(1) ICESCR. 98 It seems that this is also suggested by the UN Special Rapporteur on the Right to Food, in the context of the introduction of mandates for agrofuels and the provision of subsidies encouraging the creation of a viable market for agrofuels. See the Report of the UN Special Rapporteur on the Right to Food, A/HRC/9/23, 8 September 2008, Annex II, para. 5. 99 E.g. CESCR, General Comment 15 (2002), para. 19; General Comment 13 (1999), para. 9; General Comment 14 (2000), para. 32; General Comment 19 (2008), para. 42; and the Report of the UN Special Rapporteur on the Right to Food, A/HRC/9/23, 8 September 2008, Annex II, para. 5.

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The Committee seems not to entirely exclude that in exceptional circumstances states may be unable to fulfil internationally-defined minimum core obligations because of lack of resources.100 However, the CESCR has also held in several general comments that retrogressive measures incompatible with minimum core obligations constitute a violation of the respective rights,101 which suggests that the Committee will not accept severe retrogressive measures that infringe upon minimum core rights/ obligations. In line with the discussion in chapter IV and section 2.2.4 above, it is suggested that here we see the Committee in certain circumstances accepting retrogressive measures that touch upon some aspects of the principled international minimum core as defined in the CESCR’s general comments, but excluding retrogressive measures that touch upon pragmatic nationally-defined minimum core rights/obligations. Thus, to return to the comparison between criteria for the justification of retrogressive measures and limitations under Art. 4, both exclude measures which encroach upon nationally-defined minimum core rights/obligations which ideally coincide with principled internationally-defined minimum cores. 2.3.3. In a Democratic Society/in Accordance with the Law Limitations under Art. 4 ICESCR must in addition be acceptable ‘in a democratic society’ and implemented ‘in accordance with the law’. Regarding retrogressive measures adopted because of resource constraints under Art. 2(1) ICESCR, the Committee noted that it will evaluate them in light of the efforts states have made to remedy the situation, i.e. whether states have carefully considered all alternatives, for example by making a serious attempt to identify low-cost options and to seek assistance from the international community. In its General Comment 19 on the right to social security the Committee emphasised that it will look at whether decisions on retrogressive measures have been taken with ‘the genuine participation of affected groups’ and whether ‘there was an independent review of the measures at the national level’.102 These criteria resemble the criteria describing the requirement under Art. 4 that limitations have to be acceptable ‘in a democratic society’. 100 CESCR, General Comment 3 (1990), para. 10. 101 CESCR, General Comment 14 (2000), para. 48; similarly, General Comment 15 (2002), para. 42(c); General Comment 19 (2008), para. 64; and General Comment 17 (2005), para. 42; see also CESCR, Concluding Observations—Yemen, E/C.12/YEM/CO/2 (2011), para. 4. 102 CESCR, General Comment 19 (2008), paras. 42 (c) and (f); see also Riedel (2011), p. 582.



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Even though the Committee has never argued that retrogressive measures taken because of resource constraints have to be ‘determined by law’, it would arguably not put an overly heavy burden on states to require that these measures are indeed ‘determined by law’ before they are implemented. Thus, with regard to the acceptability of limitations ‘in a democratic society’ under Art. 4 and the CESCR’s current approach to evaluate retrogressive measures due to resource constraints under Art. 2(1), there is no difference between the two. The requirement ‘determined by law’ has usually only been applied to limitations under Art. 4; however, it seems reasonable to expect that retrogressive measures adopted by states also follow this principle. It would arguably reduce the arbitrariness of retrogressive measures if they could only be implemented after a representative legislative body has evaluated them.103 2.3.4. Proportionality There are many indications that retrogressive measures—like limitations under Art. 4 ICESCR—are justified only if they are proportionate. As already noted, retrogressive measures can only be introduced after the most careful consideration of all alternatives; and the ‘measures must be fully justified by reference to the totality of the rights provided for in the Covenant’.104 This would require states to show that measures taken because a state faces severe resource constraints are as lenient as possible, and that the overall enjoyment of ESC rights is not unduly diminished. 2.3.5. Findings from the Comparison From this brief comparison the following finding can be drawn: The differences between the conditions that have to be met to justify retrogressive measures under Art. 2(1) in the CESCR’s current approach and limitations under Art. 4 are minimal. It would therefore seem reasonable to merge the criteria and to use a unified standard to evaluate limitations of ESC rights, be it for reasons of resource scarcity or any other reason. Otherwise it is not difficult for states to evade their obligations under Art. 4, since it seems nearly always possible to relate limitations to resource scarcity and the 103 See Alston and Quinn (1987), p. 206. That the Committee would also welcome this is, in particular, clear from its General Comment 19 (2008), para. 42 (f), holding that retrogressive measures have to undergo an independent review at national level before they can be implemented. 104 E.g. CESCR, General Comment 13 (1999), para. 45; General Comment 14 (2000), para. 32; General Comment 15 (2002), para. 19; and General Comment 19 (2008), para. 42.

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notion of progressive realisation of Art. 2(1). As Alston and Quinn noted, that would allow states to justify limitations on a de facto basis under Art. 2(1) rather than on a de jure basis under Art. 4.105 In practice, it may also be very difficult to draw a strict line between retrogressive measures that were taken because of resource constraints and limitations that are not related to scarce resources. Take the example of rationing food in times of armed conflict: it can be viewed as a retrogressive measure which is due to the diversion of resources towards the fighting of a war; it can, however, also be seen as a measure to promote general welfare in the particular situation of armed conflict, by ensuring fair distribution of limited food available. Thus, while the CESCR has developed criteria that states have to meet if they wish to justify retrogressive measures, it could rely on Art. 4 in this context to a greater extent. It has been shown that there are almost no contradictions between the requirements of Art. 4 and the CESCR’s criteria to evaluate retrogressive measures based on Art. 2(1).While there is an obvious difficulty in expecting that retrogressive measures are only permitted when they promote general welfare, it is justified to require that the standard of ‘general welfare’ guides states in the implementation of unavoidable retrogressive measures. With regard to all other criteria, i.e. the condition to implement pragmatic nationally-defined minimum core obligations/rights at all times; the requirements ‘in a democratic society’, ‘determined by law’; and the principle of proportionality, there are no contradictions. Expecting states to follow these criteria when they wish to justify limitations and retrogressive measures will arguably not pose an excessive burden on them. Such an understanding would go against the travaux préparatoires, which did not intend to apply Art. 4 to retrogressive measures states may take for reasons of (severe) resource constraints; and against the current approach of the CESCR which almost never applies or refers to Art. 4 ICESCR. However, as Alston and Quinn convincingly argued, from the travaux préparatoires it is equally clear that one of the aims of the drafters of the ICESCR was to ensure that ‘states would not be free to limit the rights arbitrarily in any manner they might choose’.106 This would

105 Alston and Quinn (1987), p. 205. 106 Ibid. p. 206. To name but one example in this regard, see the statement of the French representative (Mr Juvigny), Summary Record of the 306th meeting of the UN Commission on Human Rights, E/CN.4/SR.306 (1952), p. 9, holding that ‘limits must be set for each right



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be achieved by merging the criteria developed by the CESCR to evaluate retrogressive measures under Art. 2(1) ICESCR with the criteria of Art. 4 ICESCR. It would also establish a sensible and practical contextual relationship between Arts. 4 and 2(1) ICESCR, and could ease and thereby advance the adjudication of ESC rights before national courts.107 3. Derogations from the ICESCR As this work is concerned with situations of armed conflict, a further question arises regarding the scope of obligations on states: due to the exceptional character of these situations, are states permitted to derogate from the ICESCR, despite the fact that the Covenant does not contain a derogation clause comparable to Art. 4 ICCPR?108 If so, what would be the legal basis for this and what criteria would states need to follow to derogate from ESC rights? A ‘derogation of a right or an aspect of a right is its complete or partial elimination as an international obligation’109 in a time of emergency which ‘threatens the life of the nation’.110 The travaux préparatoires do not contain a discussion on the question of the general appropriateness of derogations from ESC rights, nor on the reasons why no such clause was included.111 The question of permissibility of derogations from ESC rights is thus approached by first looking at whether the purpose of allowing for derogations from civil and political rights could be equally relevant for derogations from ESC rights. Second, as far as possible, the approaches of states, the CESCR and other international human rights bodies, as well as those of academics are analysed.

in the interest of the exercise of this right but the powers of States in that respect must be strictly defined’. 107 In this context see the observation by Langford that a slow convergence of the criteria that adjudicatory bodies apply when determining whether an interference with a social right (or interest) by a state amounts to a human rights violation is very important for advancing the judicial implementation of ESC rights (see Langford (2008), pp. 14–17). 108 This question has also been asked by Ssenyonjo (2009), p. 40. 109 McGoldrick (2004), p. 383. 110 Art. 4(1) ICCPR. 111 However, the fact that a substantial minority of delegations opposed the inclusion of even a general limitation clause based on their opinion that limitations to ESC rights were inherently unnecessary (see supra n. 25), allows for the assumption that many delegations regarded permitting derogations as all the more unnecessary and did therefore not see a need for such a discussion.

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3.1. The Purpose of Derogations and Economic, Social and Cultural Rights Reference to the purpose of allowing states to derogate from human rights treaties during states of emergency is used to argue both for and against permitting derogations from the ICESCR and other human rights treaties that do not contain a derogation clause.112 The purpose of derogations is set out in derogation Articles of the ICCPR, the ECHR and the ACHR: the protection of an existing (democratic) public order (community, state and its institutions) in situations of exceptional threat, and/or the restoration of this order.113 The existence of public order is an essential precondition for the protection of human rights in the first place and for its protection or restoration certain human rights can be temporarily suspended. This may also be necessary for protecting other human rights which—in a situation of exceptional threat—are of greater importance for the protection of human dignity than others. Arguments for permitting derogations from the ICESCR and other human rights treaties that do not contain derogation clauses highlight that this purpose could, for example, justify derogations from the right to work and rights related to trade unions.114 Derogations from children’s rights to education by closing schools for a limited period of time in order to protect their right to life and health may also be thinkable: the right to education would be derogated from in order to protect the ‘more essential’ right to life. The inherently protective function of derogations is emphasised in such arguments,115 and the strict application of the principle of proportionality to every derogative measure should theoretically prevent the abuse of states of emergency.116 Human rights standards cannot be the same in times of emergency as in normal times, because this may entail a risk of the nation falling into chaos that would undermine the object and purpose of any human rights treaty.117 112 These are all international and regional human rights treaties except from the ICCPR, the ECHR, the ESC/RESC and the ACHR. 113 Art. 4(1) ICCPR; Art. 5 ECHR; Art. 27 ACHR; HRCttee, General Comment 29 (2001), para. 1. For a more detailed discussion of these derogation clauses see Müller (2009), pp. 561–564. 114 See infra, section 3.2. 115 Final Report of Special Rapporteur, Mr. Leandro Despouy, to the UN SubCommission—Questions of Human Rights and States of Emergency, E/CN.4/Sub.2/1997/19/ Add.1, 9 June 1997, para. 42; and Study by the International Commission of Jurists (1983), p. 413. 116 Art. 4(1) ICCPR; Art. 15(1) ECHR; Art. 27(1) ACHR set out that rights may be derogated from ‘to the extent strictly required by the exigencies of the situation’. 117 Naming the very object and purpose of international human rights treaties as a reason why derogations should be permitted from human rights treaties which do not



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More generally, responses to severe natural disasters or other crises will always affect the resources available for social spending, a fact which has to be considered in any discussion of derogations from ESC rights. It seems too ambitious to expect that every aspect of ESC rights can be implemented during states of emergency, and it is thus more desirable to require states to comply with the derogation principles118 than to let them derogate from ESC rights without restriction.119 This argument assumes that states will resort to derogations de facto. Arguments against permitting states to derogate from the ICESCR point to the fact that it seems far less justified or necessary to suspend ESC rights in times of emergency, given the purpose of derogations.120 Especially with regard to subsistence rights, it is hard to imagine a situation in which it is necessary to deny people their rights to food, essential health care or basic shelter in order to maintain or restore the public order indispensable for the protection of human rights. Nor is it easily imaginable that derogations from rights to primary health care and basic food can ever be regarded as proportionate, however strong the threat to the nation is. The reason why Art. 15 ECHR only contains four non-derogable rights can be recalled in this context: these rights were declared non-derogable because they are most vital for the protection of human dignity and most likely at risk of being violated during (abusive) emergencies.121 Many other rights were not included because it was thought that it could not reasonably be necessary to derogate from them in any emergency, and not because the drafters wished to give states a right to derogate from all rights ad libitum that are not explicitly non-derogable. The same can be said for many ESC rights. contain a derogation clause is particularly prominent in the Report of the Meeting of Experts on Rights not Subject to Derogations during States of Emergency and Exceptional Circumstances (17–19 May 1995), re-printed in Premont, Stenresen, and Oseredczuk (eds.) (1996), p. 39 (paras. 28–29) [hereinafter: Report on Expert Meeting on Derogations]. 118 As set out in Art. 4 ICCPR, Art. 15 ECHR and Art. 27 ACHR: the principle of exceptional threat, the non-derogability of certain rights, non-discrimination and proportionality. 119 This seems to underlie Alston’s and Quinn’s finding that ‘where a situation appears to be sufficiently grave as to warrant derogations the absence of a specific derogation clause from the Covenant [ICESCR] should not be interpreted as foreclosing such possibility; … where derogation is undertaken a state party should be required to satisfy the criteria applicable under the Covenant on Civil and Political Rights’ (Alston and Quinn (1987), p. 219); see also CESCR, Concluding Observations—Algeria, E/C.12/DZA/CO/4 (2010), para. 23. 120 This remark is made by several authors, e.g. Alston and Quinn (1987), p. 217; Report on Experts Meeting on Derogations (1995), p. 36 (para. 20); and Mottershaw (2008), p. 451. 121 Fitzpatrick (1994), p. 64.

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This argument seems to be supported by the experience of the ECSR: to date it has never received a report from a state party to the ESC in which Art. 30, the Charter’s derogation clause,122 was invoked.123 States have apparently not found it necessary to derogate from the rights of the ESC/ RESC. This is even the case in those states which have at times derogated from the ECHR, like the United Kingdom, and other state parties which have faced situations which would arguably amount to an emergency threatening the life of the nation, such as Turkey and Cyprus.124 A related argument against permitting derogations from the ICESCR is based on the fact that—as confirmed above—the general limitation clause of the ICESCR enables states to respond flexibly to an emergency situation, including to situations of armed conflict.125 Moreover, states’ obligations are already to progressively realise ESC rights. In contrast to the ICCPR which does not contain a general limitation clause, the inclusion of an additional derogation clause in the ICESCR seemed unnecessary when it was drafted.126 Broad limitation clauses have been given as a reason for the absence of derogation clauses from the ACHPR as well.127 3.2. States’ and International Bodies’ Approaches to Derogations from Human Rights Treaties that do not Contain a Derogation Clause The approaches of states, the CESCR and other international bodies as to whether derogations from human rights treaties without a derogation  clause are permitted, and the possible legal basis for this, are inconclusive. A main argument for allowing derogations is borrowed from the general international law of treaties. It can be traced in decisions of the International Labour Organisation (ILO),128 as well as in academic 122 Art. 30(1) ESC and the equivalent Art. F(1) RESC read: ‘In time of war or other public emergency threatening the life of the nation any Party may take measures derogating from its obligations under this Charter to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.’ 123 Harris and Darcy (2001), p. 377. 124 Concerning Turkey the ECSR found, however, that certain provisions of the Turkish emergency legislation were not in conformity with the general limitation clause (Art. 31) of the ESC, see ECSR, Conclusion XVII-1 (Turkey), 2004, p. 7, paras. 3–4. 125 Alston and Quinn (1987), pp. 217–219; see also Rosas and Sandvik-Nylund (2001), p. 347; Rosas (1993), p. 181 (including n.41); and Mottershaw (2008), p. 451. 126 Alston and Quinn (1987), p. 217; and Ssenyonjo (2009), pp. 40–42. 127 Report on Experts Meeting on Derogations (1995), p. 36 (para. 21). 128 See the ILO Commission’s decisions on Greece and Poland, infra n. 133.



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literature.129 The principle pacta sunt servanda may suggest that no derogations should be allowed from human rights treaties that do not explicitly include their possibility. However, the law of treaties and customary international law provide for exceptions from this rule. These exceptions can be found in Arts. 54–64 VCLT which list several reasons for the termination and suspension of the operation of international treaties; and in the ILC’s Draft Articles on State Responsibility which, in chapter V (Arts. 20–27), specify circumstances which preclude the wrongfulness of state conduct which would otherwise not conform to states’ international obligations.130 The doctrines of necessity and force majeure are most relevant in this context.131 Subject to certain modifications, these doctrines have been recognised as a legal basis for derogations from human rights and other treaties which aim at the protection of individuals, most prominently by the ILO. For example, in 1984 the ILO Commission of Inquiry, established to examine the observance of ILO’s Freedom of Association Conventions132 in Poland, acknowledged that in principle Poland could derogate from these conventions, even though they do not contain a derogation clause. Referring to the doctrine of force majeure and adapting it to the context of ILO Conventions, it however required Poland to show that the measures it had taken and that were otherwise incompatible with the ILO Conventions in question, had been justified by ‘circumstances of extreme gravity’ and had been ‘limited in scope and in duration to what is strictly necessary given the exigencies of the situation’.133 The common principles of the treaty 129 See, in particular Report on Experts Meeting on Derogations (1995), pp. 36–39, which brings forward much of the following reasoning; see also Oraá (1992), part II, chapters 8–10; Rosas and Sandvik-Nylund (2001), p. 414; and Alston and Quinn (1987), p. 218 not excluding the possibility of derogations. 130 ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries, in ILC, Report on the Work of the 53rd Session (2001), Supplement No 10, A/56/10, pp. 71–86, [hereinafter: ILC Draft Articles on State Responsibility]. 131 On the doctrine of force majeure in public international law see ILC, Survey on ‘Force Majeure’ and ‘Fortuitous Events’, in Yearbook of the ILC, 1978, Vol II, Part One; and Art. 23 and accompanying commentary of the ILC Draft Articles on State Responsibility (2001), p. 76. On the doctrine of necessity see Art. 25, ibid., p. 80; and ICJ, Case Concerning the Gabčíkovo-Nagymaros Project (Hungary v Slovakia), Judgment, 25 September 1997, paras. 51–52. 132 ILO Convention No. 87 (1948); and ILO Convention No. 98 (1949). 133 Report of the ILO Commission on Poland, International Labour Office, Official Bulletin, Special Supplement, Vol. LXVII, Series B (1984), pp. 126–127 (para. 479). In 1971, another ILO Commission had already put similar requirements to Greece: Report of the Commission on Greece, International Labour Office, Official Bulletin, Special Supplement, Vol. LVI, No. 2 (1971), p. 26 (para. 110).

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provisions on derogations in the ICCPR, the ECHR and the ACHR seem to have served the ILO as a basis for describing the ‘adapted version’ of the public international law doctrine of force majeure applied to human rights treaties/ILO Conventions.134 In effect, this resulted in the ILO requiring states to follow the same treaty law principles that are valid for the derogation from the ICCPR, the ECHR and the ACHR when they wish to derogate from ILO Conventions that do not contain a derogation clause. Some states seem to share the view on the derogability of the labour rights of the ICESCR, as they outline possibilities to derogate from Arts. 6–8 ICESCR in their reports to the Committee.135 These reports do not, however, specify whether these states consider the same principles that are implicit in the derogation clauses of the ICCPR, the ECHR and the ACHR are applicable to derogations from these Articles. The approach of other states, the CESCR and the AComHPR seems to suggest that derogations from the ICESCR or the ACHPR are not permitted. In the absence of a derogation clause, the AComHPR has explicitly held that no derogations are allowed from the ACHPR at any time.136

134 As noted in e.g. Report on Expert Meeting on Derogations (1995), p. 38 (para. 28); and by Oraá (1992), p. 226. Oraá rightly observes that the public international law doctrine of necessity would actually be better suited for such an adaptation than the doctrine of force majeure relied upon by the ILO. In contrast to the doctrine of necessity which can be relied upon to justify the non-fulfilment of an international obligation in exceptional cases where such breach is the only way a state can safeguard an essential interest which is threatened by grave and imminent peril, force majeure can only be invoked as a justification for noncompliance with an international obligation when there is a material impossibility of compliance, i.e. when a state has no other option but to act in violation of an international obligation. The element of involuntariness is an inherent characteristic of the doctrine of force majeure. Yet, while situations may arise during emergencies in which it is materially impossible for states to implement human rights, impossibility is not the only case that allows states to derogate from certain human rights under treaty law. 135 CESCR, Initial Report—Slovenia, E/1990/5/Add.62 (2006), paras. 53, 99–105; Initial Report—Kyrgyzstan, E/1990/5/Add.42 (1999), para. 14; Initial Report—Tajikistan, E/C.2/ TJK/1 (2006), para. 150; Second Periodic Report—Azerbaijan, E/1990/6/Add.37 (2003), para. 154; Combined Second-Fifth Periodic Reports—India, E/C.12/IND/5 (2007), para. 173; Fifth Periodic Report—Ukraine, E/C.12/UKR/5 (2006), paras. 195 and 199; Initial Report—Turkey, E/C.12/TUR/1 (2009), para. 131; and Fifth Periodic Report—Russian Federation, E/C.12/ RUS/12 (2010), para. 43. 136 The AComHPR observed in Communication 74/92, Commission Nationale des Droits de l’Homme et des Libertes v Chad (1995), para. 21, that ‘the African Charter, unlike other human rights instruments, does not allow for states parties to derogate from their treaty obligations during emergency situations. Thus, even a civil war in Chad cannot be used as an excuse by the State violating or permitting violations of rights in the African Charter’. It confirmed this view in Communications 54/91, 61/91, 98/93, 96/93, 164/97–196/97 and 210/98 (all against the Islamic Republic of Mauritania), para. 84; see also Ssenyonjo (2009), p. 40; and Doswald-Beck (2011), p. 79.



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The notorious risk of abuse of derogation provisions should be recalled here. While the CESCR’s approach is not completely clear,137 it has at least once found that minimum core obligations under every ESC right are per se non-derogable,138 which suggests that it regards the flexibilities of the ICESCR’s general limitation clause as sufficient for states to respond to extraordinary situations. Only very few state reports to the CESCR directly detail derogation procedures from ESC rights; and if they do so, these procedures seem to be limited to derogations from Arts. 6–8 ICESCR. From reports that are silent on the issue it can be inferred that the respective states may not outline a derogation procedure for ESC rights because they regard such derogations as unnecessary. This is supported by the fact that other states which have derogated from civil and political rights have explicitly argued that these derogations do not extend to ESC rights and even do not affect the enjoyment of ESC rights.139 3.3. Findings on Derogations from the ICESCR From this review it is clear that references to the underlying purpose of permitting derogations from civil and political rights in the ICCPR, the ECHR and the ACHR have been made to argue both for and against allowing derogations from human rights treaties that do not contain a derogation clause, including the ICESCR. States and international bodies supervising the implementation of such treaties seem not to have developed uniform approaches towards this question. It is, however, possible to observe a certain tendency in the brief discussion above: with regard to derogations from the ICESCR, it seems that a difference is observable between the approaches to labour rights and approaches to all other rights. The review of states’ reports to the CESCR and the approach taken in the jurisprudence of the ILO Commissions of Inquiry to derogations from the ILO’s Freedom of Association Conventions suggest that derogations 137 In some General Comments the CESCR held that minimum core obligations relating to the respective rights are non-derogable (e.g. in General Comment 14 (2000), para. 47 and General Comment 15 (2002), para. 40); in others it remains silent on this question, e.g. in General Comments 17 (2005), 18 (2005) and 19 (2008); see also Ssenyonjo (2009), p. 42. 138 CESCR, Statement on Poverty and the ICESCR, E/C.12/2001/10, 10 May 2001, para. 18; similarly see Report of the UN Special Rapporteur on the Right to Health, A/65/255, 6 August 2010, para. 41. 139 CESCR, Initial Report—Algeria, E/1990/6/Add.26 (2000), para. 46 and Third and Fourth Periodic Report, E/C.12/DZA/4 (2009), paras. 44–46.

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from the right to strike, the right to form and join trade unions and the right to work occur commonly during states of emergency. The rights set out in Art. 8 ICESCR, which within that treaty most strongly resemble civil and political rights, are also the only rights of the ICESCR listed among the rights most frequently derogated from in times of emergency.140 Furthermore, an older Study by the International Commission of Jurists, which reviewed emergency regimes in 15 countries in 1983 observed that ‘restrictions on trade union rights are among the most common attributes of states of exception even when such strikes are not among the stated causes of the emergency’.141 As proposed in the ILO decisions, it seems reasonable to require states that believe a derogation from the ICESCR’s labour rights to be necessary to cope with an exceptional situation threatening the life of the nation to follow the common principles of Art. 4 ICCPR, Art. 15 ECHR and Art. 27 ACHR.142 At the same time, the arguments above seem to suggest that all other rights of the ICESCR that are not labour rights are often regarded as nonderogable, in particular their minimum core content. There is no doubt that it is unrealistic to expect states to implement all aspects of every ESC right in times of crisis to the same extent as in normal times. However, the flexibilities offered under Art. 4 ICESCR, the notion of progressive realisation, and the fact that most ESC rights can hardly ever impede the protection or restoration of (democratic) public order, suggest that states will be able to effectively respond to situations of emergency without derogating from ICESCR obligations. Even in situations where states have lost control over parts of their territory, be it to a foreign invader or a strong non-state armed group, this would not seem unrealistic: under their nationally-defined minimum core obligations they would be required to do their best to implement ESC rights nevertheless and to make every effort to remedy the situation.  This would include the request for humanitarian assistance from the international community, and the facilitation of its swift delivery in a 140 Final Report of Special Rapporteur, Mr. Leandro Despouy, to the UN SubCommission—Questions of Human Rights and States of Emergency, E/CN.4/Sub.2/1997/19/ Add.1, 9 June 1997, para. 158, listing rights which are most frequently derogated from in situations of emergencies. 141 Study by the International Commission of Jurists (1983), p. 418. 142 This is in line with the findings and recommendations in academic literature that consider the possibility to allow for derogations from labour rights or other ESC rights: see e.g. Alston and Quinn (1987), p. 219, who find that the criteria of Art. 4 ICCPR shall be applied to the ICESCR in case states wish to derogate from the ICESCR; Report on Experts Meeting on Derogations (1995), pp. 36–39; and Fitzpatrick (1994), p. 229.



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non-discriminatory fashion. This seems to be accepted by states and the CESCR: for example, the CESCR commended the efforts of the government of Cyprus to provide services, such as electricity supply and payment of pension benefits, to the population living in the part of the island that it does not control.143 Similarly, with regard to the implementation of the ECHR, the ECtHR has found that states that have (partly) lost control over their territories still have obligations towards the people living in these territories, albeit these obligations may be more limited or are shared with obligations of other parties to the ECHR who have de facto control over the respective territory.144 In the few pieces of academic work that address this question, there is a particular agreement and emphasis on the non-derogability of minimum core obligations corresponding to basic subsistence rights. Being essential for survival, rights to basic nutrition, health care, clothing and shelter are inherently linked to the non-derogable right to life. For example, Rosas and Sandvik-Nylund argue that ‘survival rights, based on a combination of the right to life contained in the ICCPR, and the right to food and health contained in the ICESCR’ shall be regarded as non-derogable under the ICCPR and ICESCR.145 In addition, on occasions when the CESCR stated that it regards minimum core obligations/rights as nonderogable, it did so in the context of basic subsistence rights, for example with regard to the minimum core obligations under the right to health146 and the right to water.147 143 CESCR, Concluding Observations—Cyprus, E/C.12/1/Add.28 (1998), para. 4; and with regard to humanitarian assistance in rebel-held territory see e.g. Sri Lanka, E/C.12/1/ Add.24 (1998), paras. 2 and 22; and Colombia, E/C.12/COL/CO/5 (2010), para. 7. 144 E.g. ECtHR, Ilaşcu and Others v Moldova and Russia, Appl. No. 48787/99, Judgment (Grand Chamber), 8 July 2004, paras. 331 and 394; further discussed in chapter VII, section 3.1.1. 145 Rosas and Sandvik-Nylund (2001), p. 414; Alston and Quinn (1987), pp. 196–197 and 217 make a similar remark indicating the difficulty of imagining a situation in which states would be able to justify derogations and limitations of basic subsistence rights; see also Ssenyonjo (2009), p. 41. The close proximity of the non-derogable right to life to basic subsistence rights of the ICESCR is also pointed out by the HRCttee in its General Comment 6, para. 5; and made explicit in Art. 6 CRC which links children’s right to life with their right to survival. This clearly includes an obligation to ensure the availability of essential child health care and adequate nutrition at all times (CRCttee, General Comment 7 (2005), para. 10). 146 CESCR, General Comment 14 (2000), para. 47. 147 CESCR, General Comment 15 (2002), para. 40. To compare, the Committee did not make such an explicit statement in its most recent General Comments on the right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he or she is the author (Article 15(1) (c) ICESCR, General Comment 17 (2005)), the right to work (General Comment 18 (2005)) and the right to social security (General Comment 19 (2008)).

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To obtain further information about states’ approaches toward the question of derogations from the ICESCR in order to draw more founded conclusions in the future, the systematic application of the new report­ ing guidelines of the CESCR will be of interest: it may invite states to regularly report on their practice and opinio iuris about derogations from the ICESCR and to distinguish them from limitations to ESC rights. It may encour­age the CESCR to ask states routinely to elaborate on this question in their reports and in their discussions with the Committee. Exploring the impact of derogations from civil and political rights on the implementation of ESC rights appears to be equally important in this context, since the overall tendency in state practice seems to suggest the non-derogability of minimum core ESC rights other than labour rights. Nonetheless, states of emergency have an indirect impact on peoples’ ability to enjoy their ESC rights, even minimum core rights—an issue to which not much attention has been paid either. 4. Concluding Remarks This chapter aimed to bring more clarity to questions around limitations to and derogations from ESC rights. Alongside the notion of progressive realisation in accordance with maximum available resources, limitation, and, with some rights, derogation principles determine the varying scope of states’ obligations under ESC rights in situations of armed conflict. With regard to limitations to ESC rights, it was suggested that the distinction that the CESCR makes between its evaluations of ‘retrogressive measures’ taken due to resource constraints (under Art. 2(1)) and limitations to ESC rights for other reasons (under Art. 4) should be abandoned. Instead, the criteria set out in Art. 4 should be applied in the evaluation of all types of limitations to ESC rights, regardless of their causes. It was further shown that this is realistic, since the criteria developed by the CESCR to evaluate ‘retrogressive measures’ differ only slightly from the principles of Art. 4. It would also prevent states from imposing arbitrary limitations and establish a sensible contextual relationship between Arts. 2(1) and 4 ICESCR. Thus, if states wish to limit ESC rights under Art. 4 they have to show that limitations are necessary for the ‘purpose of promoting general welfare’, or that their implementation preserves ‘general welfare’ to the greatest extent possible. General welfare primarily refers to the economic and social wellbeing of individuals and the community, and excludes notions



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of ‘public morals’, ‘public order’ and ‘national security’. In addition, states must ensure that limitations are determined by national law that conforms to all their international human rights obligations and is sufficiently clear and publicly accessible. The requirement that limitations must be acceptable in a democratic society calls upon states to legitimise any limitation of ESC rights through a participatory and transparent decisionmaking process. Limitations should ‘be compatible with the nature of these (ESC) rights’, which was interpreted to mean excluding limitations which infringe upon pragmatic nationally-defined minimum core obligations/rights. And lastly, limitations must respect the principle of proportionality, which requires states to show that the scope and severity of a limitation is proportionate to the aim it seeks to pursue (i.e. the promotion of general welfare). In general, Art. 4 allows states to respond flexibly to situations of tension within a (democratic) society, including to situations of emergencies, without forcing them to breach their ICESCR obligations. Regarding derogations from the ICESCR it was only possible to observe certain tendencies in the approaches of states, the CESCR and other international bodies. Despite the absence of a derogation clause, there seems to be some agreement on the derogability of the right to strike, rights related to trade unions and the right to work in exceptional situations which threaten the life of the nation. States derogating from these rights should be required to satisfy the criteria applicable under the ICCPR and to resort to derogations only after they have exhausted the ICESCR’s limitation clause. At the same time, all other ESC rights should for several reasons be considered non-derogable; foremost among these reasons are that Art. 4 on limitations affords great flexibility of state action and that such derogations seem inherently unnecessary to protect or restore public order. In particular the non-derogability of minimum core obligations corresponding to subsistence rights is emphasised time and again in the ‘jurisprudence’ of the CESCR: these rights are intrinsically linked with the non-derogable right to life and of utmost importance for the protection of human dignity and the survival of human beings in emergency situations. Thus, in order to determine the scope of states’ obligations/individual rights in situations of armed conflict a two-step process should be followed: first, the scope of states’ obligation in a particular situation and a specific point in time in accordance with the notion of progressive realisation has to be identified. As argued in chapter IV, the minimum core approach should be helpful in this regard, establishing an obligation of

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states to determine a (concrete) minimum core of each right to be implemented as a matter of highest priority at the national level, guided by an internationally-defined minimum core. Second, since in various circumstances, including in armed conflicts, states may have difficulties maintaining an achieved level of implementation of ESC rights or may need to balance the implementation of one right against that of another right, they are permitted to limit ESC rights in accordance with the criteria set out in Art. 4 ICESCR. Here, minimum core obligations/rights— understood in a similar way as in the context of progressive realisation— serve to determine the limits of limitations.

CHAPTER SIX

SITUATIONS OF ACTIVE COMBAT: INTEGRATING THE RIGHT TO HEALTH IN IHL MILITARY-TARGET DECISIONS 1. Introduction Previous chapters have looked at the separate pieces of the puzzle: the function of the lex specialis maxim structuring the relationship between IHL and IHRL; the characteristics of IHL applicable to NIACs; and the principles that determine the scope of states’ obligations flowing from ESC rights in times of armed conflict. The following three chapters discuss how these pieces can be placed together for the protection of civilians in the difficult circumstances of an on-going armed conflict. This chapter focuses on the question of how the right to health can be integrated into IHL military-target decisions. Chapter VII analyses the related question of how the parallel application of IHL and the right to health can mitigate the adverse public health consequences of NIACs. Since many obligations related to socio-economic issues will in actual fact be implemented with the help of humanitarian organisations in times of armed conflict, chapter VIII discusses how IHL and the ICESCR protect and enable the work of these organisations. The analysis concentrates the parallel application of the right to health and relevant IHL rules applicable in on-going hostilities when armed force is directed against objects.1 This focus was chosen for two reasons. First, because together with the rules relating to attacks on combatants/‘fighters’,2 these rules form the centrepiece of IHL on the conduct of hostilities; and  second, because there is a substantive tension between these IHL rules and some elements of the right to health. Reflecting on how this

1 It excludes a direct analysis of the parallel application of IHL rules and states’ obligations under the ICESCR that relate to the conduct of sieges (and the prohibition of starvation of civilians as a method of warfare (Art. 14 AP II)), to erecting roadblocks or checkpoints, and to the imposition of curfews to control the movement of the adversary. 2 Rules of IHL and IHRL relating to the use of force against members of governmental armed forces or ‘fighters’ (persons directly participating in hostilities) will not be examined. They are discussed extensively elsewhere, see e.g. the sources cited in chapter III, section 4.4.1.

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tension can be resolved with the help of the lex specialis maxim may serve  as a model for easing tensions between other norms of IHL and IHRL not discussed here.3 By contrast, in chapter VII, the analysis concentrates on rules of IHL and elements of the right to health that do not directly contradict each other, but which reinforce and complement each other well. 2. ‘Dual-Use’ Objects Qualifying as Military Objectives in IHL and the Right to Health Direct attacks on the civilian population and civilian objects like houses and livelihoods, as well as on humanitarian convoys, hospitals or medical transports are common in NIACs. The regular reports of the UN SecretaryGeneral on the Protection of Civilians in Armed Conflict list many such direct attacks.4 They are unquestionably violations of IHL and the right to health which both prohibit such attacks,5 and ESC rights and the IHL principle of distinction arguably reinforce each other well in this prohibition.6 While there is no doubt that these direct attacks have devastating effects on civilians’ ability to enjoy ESC rights, they are not the focus of this chapter. These questions relate more to the development of strategies for enhancing compliance with existing IHL and IHRL by states and non-state armed groups than to the parallel application of IHL and IHRL. Instead, the focus lies on the controversial question of attacks on objects which inextricably serve both civilian and military purposes: 3 E.g. the inter-relationship between IHL rules on precautions in attack (rules 15–21 ICRC Study, Vol I, pp. 51–67) and the right to health. But see Queguiner (2006), analysing relevant IHL. 4 Reports of the UN Secretary-General on the Protection of Civilians in Armed Conflict, S/2010/579, 11 November 2010, paras. 7–18; S/2009/277, 29 May 2009, paras. 23–25; S/2007/643, 28 October 2007, paras. 4–7; and S/2005/740, 28 November 2005, para. 3; and, among many others, the Report of the International Commission of Inquiry to Investigate all Alleged Violations of the International Human Rights Law in the Libyan Arab Jamahiriya, A/HRC/17/44, 12 January 2012, paras. 162–168. 5 This is clear from several IHL provisions, e.g. Arts. 9–11, 13, 14 and 18 AP II; rules 7–10, 25, 26, 28–30, 54–56 ICRC Study; Arts. 11 and 12 ICESCR; see also, CESCR, Concluding Observations—Sri Lanka, E/C.12/LKA/CO/2–4 (2010), para. 28; and Sudan, E/C.12/1/Add.48 (2000), para. 25. 6 This is probably why the outcomes as such of most ECtHR cases that relate to the conduct of military operations of the Russian army in Chechnya and that are decided only with reference to the ECHR are rarely criticised by IHL experts: the conduct of the Russian army violated the ECHR just as it violated the IHL principles of distinction and proportionality.



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so-called ‘dual-use’ objects.7 The destruction of ‘dual-use’ objects can be legitimate under IHL, if, at a specific point in time, they qualify as ‘military objectives’. At the same time, their destruction can undermine civilians’ ability to access essential health care, food and water, not only during an on-going armed conflict but long after the conflict has ended, and might thus conflict with states’ obligations under the right health and other ESC rights. Depending on a country’s level of development, different ‘dual-use’ objects are likely to count as contentious targets under IHL. In industrialised countries, typical ‘dual-use’ objects include bridges, roads, tunnels, train lines, energy-producing facilities and other elements of infrastructure.8 Attacks on for example bridges, roads, tunnels and airstrips are often carried out with the aim to undermine the adversary’s ability to move troops and military equipment to strategically important places.9 Destruction of transportation networks, however, also has debilitating effects on the safe transportation of the wounded and sick and displaced persons; the delivery of humanitarian assistance to civilians in need, including the movement of ambulances and other medical transports; and the access of civilians to medical facilities, arable land and livestock, their working place and food markets.10 Another typical ‘dual-use’ object that may be subjected to attacks during armed conflicts is a country’s electricity system. Attacks on electrical facilities are usually carried out because electricity can be vital for military     7 It has been correctly noted that the term ‘dual-use’ object might be misleading, because the word ‘use’ ‘could be interpreted as restricting the category to objects that are actually used by civilians and the armed forces’, see Boivin (2006), p. 23, for further details; other authors note that the term ‘dual-use’ object should be used with care since legally there is no intermediate category of ‘dual-use’ objects in IHL: either something is a military objective or it is not (see Greenwood (1993), p. 37). With these caveats in mind, the term ‘dual-use’ object is nonetheless relied on in this work.    8 In this context, it should be noted that the drafters of AP II explicitly rejected including fuel reservoirs and means of communication such as arterial roads essential to the supply of indispensable objects in Art. 14 AP II listing ‘objects indispensable to the survival of the civilian population’. This shows that these objects have to be discussed under the ‘general’ IHL provisions defining ‘military objectives’ and not under the stricter protection that is given to ‘objects indispensable to the survival of the civilian population’. This is pointed out by Allen (1989), p. 64.    9 See e.g. HPCR Manual (2010), para. 23; and Rogers (2004), pp. 70–71. 10 See e.g. Report of four UN Special Rapporteurs on their Mission to Lebanon and Israel, A/HRC/2/7, 2 October 2006, paras. 62–64; Report of the Commission of Inquiry on Lebanon, pursuant to Human Rights Council Resolution S-2/1, A/HRC/3/2, 23 November 2006, paras. 136–148; Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, A/HRC/17/44, 12 January 2012, para. 71; and Shue and Wippmann (2002), p. 562.

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communication, the manufacture of new weapons or the operation of an air defence system.11 On the other hand, the breakdown of electricity grids and power stations can severely undermine the function of hospitals, water systems and sewage treatment and of food-producing or other factories. This, in turn, undermines civilians’ access to essential health care, to safe drinking water and sanitation and to adequate food.12 Even though not discussed as such in most academic literature,13 typical ‘dual-use’ objects that might qualify as military objectives in armed conflicts in poorer countries include generators, cattle and possibly agricultural land, in addition to the little existing transport infrastructure.14 For example, in low-income countries with little infrastructure the destruction of remote airfields may interrupt military operations of nonstate armed groups. It may, on the other hand, also prevent humanitarian organisations, including medical personnel, from reaching vulnerable civilians.15 Electricity generators and cattle can be used for military purposes, for instance to transport weapons, even if they belong to civilians. Depending on the exact circumstances, this can make them military objectives under IHL. In some countries, however, civilians heavily rely on cattle for their survival. Arable land is often equally important for the enjoyment of the right to food of civilians in low-income countries. Nonetheless, it can have a military purpose if it is in a strategically important area, and can therefore be attacked under IHL as a ‘military objective’ or transformed into minefields—as long as this is not done for the purpose of, or results in, starvation among civilians.16 11 This was e.g. the case with the Iraqi electricity grid in the 1990/91 Gulf War (an IAC) which was an integrated military/civilian electricity grid; see Dinstein (2004), p. 96; Greenwood (1993), pp. 63 and 73; Kuehl (1995), pp. 251–52; and Rogers (2004), pp. 71–76. 12 Report of four UN Special Rapporteurs on their Mission to Lebanon and Israel, A/ HRC/2/7, 2 October 2006, paras. 62 and 103(d); Report of the Commission of Inquiry on Lebanon, pursuant to Human Rights Council Resolution S-2/1, 23 November 2006, para. 139; see also infra, section 5.2. 13 The vast majority of academic IHL literature on the conduct of hostilities/the making of target decisions, concentrates on IACs, mainly the 1991 Gulf War, NATO’s campaign against Serbia (Kosovo) in 1999, the US/UK invasion of Iraq in 2003 and military operations conducted by the IDF. These are situations of warfare in relatively developed countries. The process of making target decisions and its conformity with IHL in NIACs remains underresearched, despite the fact that the majority of armed conflicts are of a non-international character today. 14 Rule 8 ICRC Study, Vol I, p. 32. 15 This is the case e.g. in remote parts of the Democratic Republic of the Congo; see the Report of the UN Secretary-General on the Protection of Civilians in Armed Conflict, S/2007/643, 28 October 2007, para. 36. 16 In accordance with Arts. 14 and 17 AP II.



situations of active combat153 3. The Function of the lex specialis Maxim in Situations of Active Combat

As far as the destruction of objects is concerned, in situations of active combat the lex specialis maxim will arguably imply that IHL is given preference over IHRL rules in the regulation of the conduct of hostilities. However, in line with the findings of chapter II, the application of the lex specialis maxim cannot result in the complete overruling of IHRL. Some elements of infrastructure that can be attacked as legitimate military objectives in IHL at a given point in time, also form part of the health system that states should create under their core and non-core obligations flowing from the right to health. If a certain level of implementation of the right to health has been reached by building parts of such a health system, limitations/retrogressive measures on this achieved level are only permissible for ‘the purpose of promoting general welfare in a democratic society’. This excludes limitations for reasons of national security and public order under which restrictions related to the existence of a NIAC are most likely to fall.17 Moreover, nationally-defined minimum core obligations that ideally coincide with the internationally-defined minimum core cannot be limited under Art. 4 ICESCR, nor be derogated from.18 As discussed, when the legal consequences of two norms regulating the same situation are mutually exclusive—as seems to be the case with regard to certain ‘dual-use’ objects—the lex specialis maxim suggests that the more special norm is given preference and thus eases the substantive tension between the norms.19 In accordance with the contextuality that characterises the function of the lex specialis maxim, the special norm would be the norm that both applies to certain facts and applies to an additional fact present in the particular situation. The fact that a certain ‘dual-use’ object is used for military purposes in a NIAC by governmental armed forces or a non-state armed group can be identified as this additional fact present in the situation. This would for instance be applicable to a bridge or road that is regularly used for military transportation. Customary rules regulating attacks against military objectives under IHL of NIACs directly address this particular situation in a NIAC, whereas

17 See chapter V, sections 2.2.1 and 2.3.1. 18 See chapter V, part 3. 19 See chapter II, section 3.3.

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obligations not to limit ESC rights beyond what is permitted by Art. 4 ICESCR are related to it only implicitly.20 With the caveats discussed below regarding the relativity of the function of the lex specialis maxim in this context, this choice of the ‘special’ rule seems to be the most pragmatic solution, and may thereby respond to the reality of armed conflicts most effectively. It might for example be unrealistic to expect states not to attack military objectives, including certain elements of the infrastructure in areas under the control of a strong non-state armed group, if these elements form part of the non-state armed group’s military potential—even if this will undermine elements of the health system that enables individuals to access a range of essential health care facilities. The lex specialis maxim indicates in this context that though it might be ‘desirable to apply only human rights’, such a solution would be ‘too idealistic, bearing in mind the speciality and persistence of armed conflict’.21 The authorisation in IHL to weaken the military potential of the adversary by force cannot be ignored, in particular when states have lost control over parts of their territory. It may also be argued that giving preference to IHL rules corresponds better to states’ intention that is reflected in the customary rules that have developed around the conduct of hostilities against military objectives in NIACs. Yet, as also highlighted in chapter II, the relativity of the function of the lex specialis maxim implies that even if IHL is given preference in the regulation of the conduct of hostilities, ESC rights as the ‘general’ law will nonetheless influence the application and interpretation of the relevant IHL norms from the background, supported by what has been called the ‘omnipresence of general law’.22 It was also suggested that any tension between the ‘special’ and the ‘general’ norm should, as far as possible, be eased through harmonious interpretation and not through establishing a definite hierarchy between the ‘special’ and the ‘general’ rule, supporting the systemic objective of the law. This would be encouraged by relying on other methods of interpretation, such as the identification of the object

20 This is of course only the case for situations in an armed conflict to which IHL applies. There are many situations that remain regulated by IHRL only, as they have no connection to an on-going armed conflict. Examples are law enforcement operations that are unrelated to the conflict. 21 As observed in the ILC Study with reference to the ICJ’s Nuclear Weapons Opinion, para. 104. 22 See also chapter II, section 3.3.



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and purpose of the relevant rules and attempts to integrate them,23 in addition to applying the lex specialis maxim. For the parallel application of the right to health and IHL rules related to attacks on military objects, this would probably mean that at least minimum core obligations flowing from the right to health will exert some influence on the process of making military-target decisions. This is because the minimum core right to health can neither be limited under Art. 4 ICESCR nor be derogated from in times of armed conflict,24 and because its implementation is essential for the survival of civilians,25 in particular in times of armed conflict. A statement of the group of experts  who recently adopted the “Manual on International Law Applicable to Air and Missile Warfare”, that IHRL ‘has only minimal bearing on air and missile warfare’ including on the making of military-target decisions, because ‘the law of armed conflict is lex specialis’,26 shall be rejected on this basis. It is suggested that the parallel application of minimum core obligations could manifest itself in two ways: first, in situations of active hostilities it is likely that access to essential medical care is provided through the work of international humanitarian organisations or emergency assistance delivered by the government itself. Such a right to access a minimum level of medical care through emergency humanitarian assistance can arguably not be suspended by IHL as the lex specialis, even in situations of active combat, and even in the attacking of military objectives. This will also be supported by IHL rules related to the delivery of humanitarian assistance to civilians in need.27 Second, minimum core obligations flowing from the right to health require states to create and maintain a basic health system that ensures individuals’ physical and economic access to essential primary health care independently and in a sustainable 23 In this context, it should be noted that the object and purpose of many human rights treaties does not fully exclude the use of force. Regaining control over rebel-held territory through military action is not excluded and can sometimes be a means for states to restore conditions necessary for the effective implementation of many elements of minimum core and non-core ESC rights, including by ensuring that non-state armed groups do not interfere with the enjoyment of these rights. This is discussed further in chapter VII, section 3.1.1. 24 See the conclusions from chapter V. 25 See chapter IV, section 4.1. 26 HPCR Commentary (2010), p. 6 (section D(d)). 27 Art. 18 AP II; and rules 31, 32, 55 and 56 ICRC Study, Vol I; see also chapter VIII, part 2.

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manner.28 These obligations remain relevant during hostilities, and will flow into the interpretation of IHL rules on the targeting of military objectives. This might be particularly appropriate with regard to the IHL definition of military objectives and the IHL principle of proportionality, since there is a considerable debate in IHL scholarship on how these should be interpreted and applied.29 Integrating minimum core ESC rights in IHL military-target decisions is particularly important for minimising the long-term adverse impact of NIACs on public health.30 These general observations on the function of the lex specialis maxim in regulating the parallel application of IHL and the right to health during on-going hostilities shall be looked at in greater detail, with reference to concrete rules and examples from recent armed conflicts. Overall, giving preference to IHL with regard to attacks on military objectives in active combat situations, while allowing the minimum core right to health to influence the interpretation of IHL rules, promises to ensure that in this ‘hard case’31 a pragmatic choice is made between the different sets of rules in favour of IHL, without fully extinguishing IHRL.32 IHL rules are the starting point of the examination in the following parts 4 and 5, given the priority that will arguably be assigned to IHL in active combat situations. Making target decisions is a two-step process under customary IHL of NIACs, similar to the process in IACs: first, it must be determined whether an object constitutes a ‘military objective’. In a second step, it must be ensured that an attack on a military objective complies with the principle of proportionality. In the following section, a closer look will be taken at the IHL definition of a military objective and the principle of proportionality and their interpretation, including controversial elements. At the same time, the question is examined of how states’ obligations flowing from the right to health can be integrated into these definitions and their interpretation, and what implications that may have for the implementation and application of these rules in the process of making military-target decisions.

28 See the discussion on the right to health in chapter IV, particularly sections 4.4 and 5.2. 29 As mentioned in chapter III, sections 4.4 and 4.5. 30 See the examples given infra, sections 5.2 and 5.3. 31 In the sense that there is a substantive tension between IHL rules on the attacking of military objectives and some elements of states’ obligations under the ICESCR—at least as far as attacks on certain ‘dual-use’ objects are concerned. 32 In line with the findings of chapter II, section 3.3; see also, ILC Study, para. 104.



situations of active combat157 4. Integrating the Right to Health in IHL Military-Target Decisions: The Definition of a ‘Military Objective’

The IHL definition of a military objective contains two elements both of which must be present for an object to count as a military objective.33 Under the first element it is required that objects must ‘by their nature, location, purpose, or use make an effective contribution to military action’.34 The second element establishes that such objects can only be regarded as ‘military objectives’ if their ‘partial or total destruction, capture or neutralisation, in the circumstances ruling at the time, offer a definite military advantage’.35 Only if both elements are cumulatively met does an objective qualify as a military objective. The treaty-based definition of ‘military objectives’ in IHL of IACs remains one of the most controversial provisions of AP I.36 This is not different in the analogous customary definition applicable to NIACs,37 since the ICRC Study does not resolve its controversial points. As Haines observes: ‘Unfortunately, while one might argue that the precise wording of the ICRC’s Rule 8 is not contentious and should be accepted as reflecting customary law, one cannot say the same about how that rule is interpreted in its application’.38 Much of this contention relates to its application to so-called ‘dual-use’ objects that will also serve as examples in the following discussion. 4.1. The Notion of ‘Effective Contribution to Military Action’ of an Object by its ‘Purpose or Use’ and the Right to Health The phrases ‘purpose or use’ and ‘effective contribution to military action’ are very broadly interpreted by some IHL experts, the US Air Force and the  Israel Defense Forces (IDF), but this interpretation is rejected in the  following discussion. This rejection is shared by most IHL analysts. 33 ICRC Commentary (AP I/II) on Art. 52(2) AP I, para. 2018, pointing out the structure of this Article. See also Boivin (2006), p. 15, who establishes that an object has to pass a ‘two-pronged test’ to constitute a military objective. 34 Rule 8 ICRC Study, Vol I, p. 29; also chapter III, section 4.4.2. 35 Ibid. 36 E.g. Oeter (2008), p. 179: ‘the general definition of ‘military objectives’ in Article 52, para. 2, AP I … constitutes one of the most heavily debated provisions of the Additional Protocol …’; also Watkin (2005), p. 15; and Rogers (2004), p. 64. The different positions in the debate are well reflected in the various contributions in Heintschel von Heinegg and Epping (eds.) (2006). 37 See also the discussion in chapter III, section 4.4.2. 38 Haines (2006), p. 130.

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The main argument in this section will be that the parallel application of states’ ICESCR obligations will reinforce this rejection, the main reason for  which is that adhering to a very broad interpretation results in an undue expansion of objects that qualify as military objectives, including all ‘dual-use’ objects. While the US Air Force in particular developed its  broad understanding of ‘effective contribution to military action’ primarily for the context of IACs, it will be shown that the resulting problem is also relevant for NIACs, including because non-state armed groups may be inclined to use similar reasoning to justify attacks on various objects. 4.1.1. The Debate in IHL ‘Classic’ military objectives are usually objects that qualify as such ‘by their nature’, i.e. objects directly used by governmental armed forces or nonstate armed groups, such as weapons, military equipment, transports, fortifications, depots, buildings occupied by armed forces/non-state armed groups, and military communication centres.39 The ‘dual-use’ objects mentioned, such as roads, bridges, tunnels, airfields and electricity facilities can qualify as military objectives by their ‘purpose or use’ and occasionally by their ‘location’. With regard to the former, the ICRC Commentary holds that the ‘criterion of ‘purpose’ is concerned with the intended future use of an object, while that of ‘use’ is concerned with its present function’.40 As observed by several authors,41 under IHL the fact that a ‘dual-use’ object is, at the same time, important for civilian life does not undermine its ‘identity’ as a military objective: its parallel civilian function does not affect this part of the definition of a ‘military objective’.42 However, the mentioned requirement of intent sets a limit as to when ‘dual-use’ objects can be considered ‘military objectives’. Analysing inter alia the ICTY 39 ICRC Commentary (AP I/II) on Art. 52(2) AP I, para. 2020; interpretation of rule 8 ICRC Study, Vol I, p. 32; Oerter (2008), pp. 182–183; see also the objects listed by Dinstein (2004), pp. 88–89; and the list contained in UK Manual of the Law of Armed Conflict (2004), pp. 56–57. 40 ICRC Commentary (AP I/II), para. 2022 (emphasis added); see also HPCR Commentary (2010), pp. 107–108. 41 Sassòli and Cameron (2006), pp. 57–58; Shue and Wippmann (2001–02), p. 562; Greenwood (1997), p. 460, referring in particular to the identification of the Iraqi electricity grid as a military objective during the 1990/91 Gulf War; also Rogers (2004), p. 72; and Oeter (2008), p. 182. 42 But clearly, civilian death and suffering caused by the destruction of ‘dual-use’ objects flow into the proportionality analysis, see infra, part 5.



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jurisprudence,43 Sassòli and Cameron argue that only ‘intended future use … but not a possible future use’44 of an object for military purposes can be sufficient to hold that it is actually ‘making an effective contribution to military action’ by its ‘purpose’. This requirement of ‘intended future use’ was clearly not met in some actions by the IDF in its military campaign against Hezbollah on Lebanese territory in August 2006. When Israel justified its far-reaching attacks on Lebanese roads and bridges by invoking their ‘hypothetical use by Hezbollah’45 and their potential ‘effective contribution to [Hezbollah’s] military action’, UN Special Rapporteurs clearly objected. In their report on their mission to Lebanon and Israel, they noted that a road connecting southern Lebanon to the rest of the country could be considered to contribute to Hezbollah’s military action and a bridge along such a road may thus be a legitimate military objective. But no such justification is plausible for most other areas, including target areas inhabited by populations with no links to Hezbollah.46

This argument presumably rests on the assumption that Hezbollah never intended to use roads and bridges in areas where none of its supporters lived for its military action against Israel. The Special Rapporteurs consequently called for maintaining a context-specific approach when this element of the definition of military objectives ‘by purpose’ is applied in the conduct of military operations.47 This is particularly important for its application to ‘dual-use’ objects. Disregarding the distinction between ‘possible future use’ and ‘intended future use’ already results in an improperly broad definition of military 43 Sassòli and Cameron (2006), p. 58, analysing ICTY, Prosecutor v Galić, Trial Camber Judgment, IT-98–29-T (2003), para. 51. 44 Ibid., also referring to other authors who suggest that ‘it is sufficient that the likelihood of military use is reasonable and not remote’. 45 Report of the Commission of Inquiry on Lebanon, pursuant to Human Rights Council Resolution S-2/3, A/HRC/3/2, 23 November 2006, para. 146 (including footnotes). 46 Report of four UN Special Rapporteurs on their Mission to Lebanon and Israel, A/ HRC/2/7, 2 October 2006, para. 51; see also Rogers, (2004), p. 84, who includes in a list of potential military targets only those bridges and roads that are ‘used for troop movement or military logistical purposes’ (emphasis added). 47 Ibid., para. 50–51; see also Rogers (2004), p. 68. In addition, and reinforcing this understanding, the destruction of e.g. a bridge that leads to an area where no hostilities occur or are expected to occur in the near future would not offer a ‘definite military advantage’ in the circumstances prevailing at the time, and would therefore also not conform to the second element of the IHL definition of a military objective; see Wippman and Shue (2001–02), p. 561; Bothe (2001b), p. 534; and with regard to Lebanese power plants destroyed by Israel in its campaign against Hezbollah in Southern Lebanon, see Tomuschat (2006), p. 187; see also the discussion infra, section 4.2.1.

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objectives. This is exacerbated by the emphasis of the US and some scholars that the phrase ‘effective contribution to military action’ should be interpreted widely, as ‘effective contribution to the enemy’s war-fighting or war-sustaining capability’.48 The Report of the UN Fact Finding Mission on the Gaza Conflict (Goldstone Report) made clear that the IDF has adopted this interpretation as well, and applied it during its military operation in the Gaza Strip in December 2008/January 2009.49 This broad understanding of an ‘effective contribution to military action’ is rightly widely criticised,50 since it risks eliminating the required nexus between a targeted object and the military action of the adversary.51 It opens the floodgates for an unrestricted number of objects that, ‘by purpose or use’, make an effective contribution to the enemy’s ‘war-sustaining capability’.52 It would undoubtedly make any ‘dual-use’ object attackable as a military objective.53 Moreover, the range of economic targets that qualify as military objectives would become virtually unlimited, since it can be argued that any economic activity might directly or indirectly (effectively) contribute to the adversary’s ‘war-sustaining capability’.54 48 This wording can be found in the US Commander’s Handbook on the Law of Naval Operations (July 2007 edn), section 8.2.5. Many US scholars and military strategists have criticised the definition of a ‘military objective’ in Art. 52(2) AP I as too restrictive. It is felt that it radically limits the category of legitimate military objectives. See e.g. Parks (1990), pp. 138–141; Meyer (2001); Dunlap (2000); and the retired U.S. Air Force Col. John A. Warden III (1995), in his prominent ‘five strategic rings’ theory. The latter three authors even suggest returning to understanding civilian morale and political will to wage war as a legitimate military objective, despite the devastating effects this has had on the civilian populations during WWII and the clearly marginal, if any, military advantage this brought. 49 Report of the UN Fact-Finding Mission on the Gaza Conflict, A/HRC/12/48, 25 September 2009, [hereinafter: Goldstone Report]. This is clear from the so-called Dahiya doctrine adopted by the IDF, analysed in paras. 62–64 and chapter XVI of the report. 50 E.g. Dinstein (2004), p. 87; also Rogers (2004), p. 81; Oeter (2008), p. 179; Oeter (2006), pp. 54–55; Sassòli (2005), p. 196; and HPCR Commentary (2010), p. 110. 51 HPCR Commentary (2010), p. 110; see also the discussion infra section 4.2.1. 52 Air power theorist John Warden III is named as the most influential theorist who developed the doctrine of this wide understanding of military objectives in his 1995 article ‘The Enemy as a System’. He suggested that all political-administrative structures of the adversary and its resource basis can be regarded as possible military objectives. Parks (2006) is slightly more restrictive, but holds that in his understanding ‘the connection of some objects to an enemy’s war effort may be direct, indirect or even discrete. A decision as to the classification of an object as a military objective and allocation of resources for its attack is dependent upon its value to an enemy nation’s war-fighting or war-sustaining effort (including its ability to be converted to a more direct connection), and not solely to its overt or present connection or use’ (p. 89). 53 See also Oeter’s observation that such a broad interpretation would mean that the ‘number of ‘dual-use objects’ in a larger sense is nearly infinite …’ (Oeter (2006), pp. 54–55). 54 See the examples given by Dinstein (2004), p. 87; Rogers (2004), p. 71; and Oeter (2008), p. 180.



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Whereas the US seems to have developed this broad interpretation with regard to objects it deems necessary to attack in IACs,55 it can well be adapted to the context of NIACs. Non-state armed groups are always dependent on a civilian infrastructure—on roads and bridges as well as on civilian economic activity. This cannot mean that the entire civilian infrastructure and economic life can be regarded a ‘military objective’ because of its remote and indirect contribution to the military action or, in the US’ understanding, to the ‘war-sustaining capacity’ of a non-state armed group.56 While not a ‘classic’ NIAC, the December 2008/January 2009 conflict between the IDF and armed Palestinian factions in the Gaza Strip can serve as an example of the dreadful consequences for civilian life that result from adopting such a broad definition of ‘effective contribution to military action’. The Goldstone Report lists various attacks on the foundations of civilian life in Gaza, such as the destruction of industrial infrastructure, food production, water installations and sewage treatment plants.57 Based on its Dahiya doctrine, the IDF seemed to justify many of these attacks with the argument that these objects were supporting elements of Hamas’s ‘terrorist activity’.58 It did not distinguish between military and civilian elements of the Hamas’ government of Gaza, and ultimately assumed all residents of Gaza and their economic activities to be part of the supporting infrastructure of Hamas’s ‘terrorist activities’.59 Though not openly proposing that it had a similarly broad understanding of ‘effective contribution to military action’, the Russian armed forces’ military operations in Chechnya in 1994 and 2000 that caused excessive destruction of civilian infrastructure, likewise suggest that they were based on a comparable doctrine. From relevant UN reports, this can also be assumed for the conflict situations in, for example, Darfur60 and Syria.61

55 In particular after the Kosovo campaign in 1999, see e.g. Rogers (2004), p. 79. 56 See e.g. the observations on the dependence of Hezbollah on the Lebanese civilian infrastructure and on ordinary civilian economic activities of the Lebanese population (Tomuschat (2006), p. 187). 57 See in particular chapter XIII of the Goldstone Report (2009); and COHRE (2009). 58 The IDF did not cooperate with the UN Human Rights Council’s team of investigators. Therefore, the objectives and strategy of Israel’s operations in Gaza are inferred from statements of high ranking military personnel and politicians, as well as soldiers’ accounts who provided their statements to the NGO “Breaking the Silence”. 59 Goldstone Report (2009), particularly paras. 1203–1216. 60 Report of the International Commission of Inquiry on Darfur to the UN SecretaryGeneral, 25 January 2005, paras. 233–236. 61 Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, A/HRC/17/44, 12 January 2012, paras. 39–46.

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An analogous overly broad interpretation of ‘effective contribution to military action’ could also be adopted by non-state armed groups. These groups might use it to justify attacks on civilian houses and economic life, in particular in areas where government supporters live. 4.1.2. Adding ICESCR Obligations to the Debate As regards this first element of the definition of a military objective in IHL, the parallel application of states’ obligations under the ICESCR will arguably all but reinforce the rejection of far-reaching interpretations of the phrases ‘purpose or use’ and ‘effective contribution to military action’. As noted earlier, the destruction of ‘dual-use’ objects that, in the circumstances ruling at the time, qualify as military objectives may conflict with states’ obligations to create and maintain an accessible and affordable health system. These obligations lose some of their relevance in situations of active combat as IHL rules are given preference through the application of the lex specialis maxim.62 This can be based on the fact that in situations of active combat, in particular when hostilities are on-going, there is a need to consider aspects of military necessity that are inherent in this first element of the definition of military objectives. The destruction of objects on the basis that they form part of the ‘enemy’s war-fighting capability’ cannot, however, be reconciled with states’ obligations under the ICESCR to maintain and improve an existing standard of enjoyment of the right to health and other ESC rights, in particular a standard at the minimum core level.63 Destruction of, for example, a wide range of economic targets, interferes significantly with these obligations under the ICESCR, including in the long-term,64 without even being justified by military necessity.65 States’ obligations under the ICESCR will arguably have greater influence on the second element of the IHL definition of a ‘military objective’ than on the first. This second element—the 62 See supra part 3. 63 The Goldstone Report (2009) therefore frequently finds Israel to violate IHL as well as the ICESCR, e.g. paras. 941, 961, 987–88, 1005–07 and 1300–35. Note however, that the Goldstone Report has been criticised for not setting out a clear view on which interpretation it favoured of IHL rules relating to the conduct of hostilities. See e.g. Report of an Expert Meeting which Assessed Procedural Criticisms made of the UN Fact-Finding Mission on the Gaza Conflict, Chatham House, 27 November 2009, p. 6. 64 See also infra, sections 5.2 and 5.3. 65 As discussed in chapter III, section 4.3, military necessity allows parties to a conflict to use only as much force as is necessary to achieve the legitimate purpose of the armed conflict, namely the military submission of the enemy, as long as this is not otherwise prohibited by IHL, including by the principle of humanity.



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requirement that the attack on the object has to also offer a ‘definite military advantage’—is discussed next. 4.2. A ‘Definite Military Advantage’ in IHL and the Right to Health The main argument of this section will be that the integration of ESC rights into the determination of a ‘definite military advantage’ and thereby the identification of a ‘military objective’ will result in a requirement to take into account the need for a relatively swift reconstruction of civilian infrastructure and restoration of basic services after the active combat phase is over. This is based on an argument of Steven Haines which is endorsed and further developed for the context of NIACs. It will also be shown that this seems a reasonable requirement from the viewpoint of military strategy, notably in counterinsurgency operations. To this end, the section will first examine the meaning of a ‘definite military advantage’ in IHL. It then moves to discuss and develop Haines’ arguments by relating them to states’ obligations under the ICESCR that apply in parallel, as well as to arguments brought forward in recent literature on counterinsurgency operations. 4.2.1. The Meaning of a ‘Definite Military Advantage’ in IHL As noted, if an object by its ‘nature, location, purpose or use’ makes an ‘effective contribution to military action’, its ‘partial or total destruction, capture or neutralisation, in the circumstances ruling at the time’ must also ‘offer a definite military advantage’ before this object qualifies as a military objective that can be attacked. The debate about the inter­ pretation of this second element of the IHL definition of a military objective centres on the meaning of what constitutes a ‘definite military advantage’. A ‘definite military advantage’ to be gained from an attack must be a ‘concrete and perceptible military advantage rather than a hypothetical and speculative one’.66 The ICRC Commentary to AP I adds that the military advantage ‘should be substantial and relatively close, and that advantages which are hardly perceptible and those which would only appear in  the long-term should be disregarded’.67 There is no reason why this

66 Bothe, Partsch and Solf (1982), p. 326; Sassòli and Cameron (2006), p. 48; and commentary on rule 14 ICRC Study, Vol I, p. 49–50. 67 ICRC Commentary (AP I/II), para. 2209; HPCR Commentary (2010), p. 110; and interpretation of rule 14 ICRC Study, Vol I, p. 50.

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interpretation should be different for the identical customary rule applicable to NIACs. In addition, there seems to be a shared view that the notion of ‘definite military advantage’ refers to the military advantage anticipated from an ‘attack as a whole’ in distinction to the military advantage gained from ‘isolated or specific parts of the attack’.68 Oeter notes in this context, that ‘modern strategies of warfare … are invariably based on an integrated series of separate actions forming one ultimate compound operation. The separate action within an operation … is hardly ever an end in itself’.69 I.e. the larger operational picture shall be taken into account when the ‘military advantage’ of the actions of individual ‘fighters’, tanks or aircrafts forming part of an ‘attack’ is determined.70 Ultimately, separate actions and phases of a military operation are linked to the overall military strategy of a party to the conflict which is, among other things, influenced by political aims.71 On the one hand, there are risks in pointing to the importance of the ‘attack as a whole’ and the overarching strategic objective of a military campaign when determining a ‘definite military advantage’ and with this a legitimate military objective. This is particularly so when sight is lost of the fact that IHL only allows using the amount of military force which is necessary to destroy the military potential of the adversary.72 Only attacks on this military potential can bring about a ‘military advantage’. This danger is proven by the mentioned tendency of some authors, the US and the IDF to extend the ambit of military objectives towards ‘warsustaining’ objects that include economic targets and even the politicaladministrative structure of the enemy state/non-state armed group.73 The strategic objective of the armed conflict then shifts towards the destruction of the political command and control system and its resource basis, away from the objective to destroy the military potential of the adversary.

68 Oeter (2008), pp. 185–186; Watkin (2005), p. 19; Sassòli and Cameron (2006), p. 48, pointing out that several states added declarations to Arts. 51(5)(b) and 57(2)(a)(iii) AP I upon their ratification that purport this interpretation. By implication, these declarations also apply to Art. 52(2) AP I. See also the interpretation of rule 8 ICRC Study, Vol I, p. 31. 69 Oeter (2008), p. 186. 70 Dinstein (2004), p. 123, pointing out that this in addition informs the interpretation of what constitutes an ‘attack’ in IHL. 71 A difficult question in this context is in how many smaller actions the attack/operation should be separated. This question cannot, however, be discussed here. 72 See chapter III, section 4.3; and Oeter (2008), p. 180. 73 See supra, section 4.1.1 (ns. 48 and 52).



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On the other hand, emphasising the ‘attack as a whole’ and its relation to the strategic objective of a military campaign offers an opportunity for integrating states’ obligations under the ICESCR into the analysis of what constitutes a ‘military advantage’ in NIACs and thereby into the IHL definition of a ‘military objective’. Further developing a line of argument brought forward by Steven Haines,74 an attempt is now made to show that the application of states’ obligations under the ICESCR to military operations will narrow the interpretation of what objects constitute ‘military objectives’ because their ‘partial or total destruction, capture or neutralisation, in the circumstances ruling at the time’ constitute a ‘definite military advantage’. Applying obligations under the ICESCR in parallel could mean that states are obliged to consider the need for fairly swift reconstruction of civilian infrastructure when they make military-target decisions so that civilian life can be resumed as quickly as possible after the conflict has ended or passed into a quieter phase. 4.2.2. Developing Haines’ Arguments Regarding the on-going armed conflicts in Afghanistan and Iraq, which can today be described as NIACs,75 Haines points to the importance of giving opportunities for fairly swift post-conflict reconstruction and recovery to societies that experienced armed conflicts for the overall success of a military campaign.76 He demonstrates what this could mean for the conduct of military operations in the active combat phase, as one of several phases of a longer military campaign: concerns about what will be required—militarily and non-militarily—in post-combat phases for the success of the overall campaign will restrict the conduct of hostilities during the combat phase. For the understanding of what constitutes a ‘military advantage’ from an attack, this implies that the short-term aim of a combat phase as well as the requirements of phases that inevitably follow the active combat phase, must be considered. This would, as Haines notes, arguably mean that even if certain elements of infrastructure can be destroyed as legitimate ‘military objectives’ under IHL because their destruction constitutes a ‘military advantage’, some may not be appropriate targets for attack, given the need to follow combat operations with 74 Haines (2006). 75 At least as regards the parties to the conflicts (state actor(s) against insurgents), they resemble ‘classical’ NIACs in which similar tactics have been applied; see also chapter III, section 3.2. 76 Haines (2006), p. 137.

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swift post-conflict reconstruction. A possible (short-term) military advantage gained from the destruction of a certain object in the combat phase may turn out to be the opposite in the long-term when it undermines reconstruction in phases that follow the active combat phase.77 Haines stops short of arguing that taking post-conflict reconstruction concerns into account in situations of active combat has developed into a legal requirement restricting the understanding of what constitutes a ‘military advantage’/‘military objective’ in IHL, as a consequence of the parallel application of IHL and IHRL. But he does not exclude this possibility and clearly voices his opinion that a moral requirement has emerged in this regard. He holds: It is increasingly the case that international morality is coming to regard the need for post-conflict reconstruction as an imperative. It is no longer acceptable for wars to be waged with inadequate consideration given to what must inevitably follow. Military campaigns must not be conducted with little or no concern for the eventual end-state. The destruction of a state’s military capacity to fight must not come at the excessive expense of that state to recover in fairly swift order.78

He moves on finding that when one considers also the impact that human rights law is having on the conduct of military operations and campaigns generally, the possibility that what constitutes legitimate military objectives during the combat phase will be affected by post-conflict concerns has to be acknowledged.79

While he refers to IACs, this is arguably even more relevant for NIACs, as a sustainable military ‘victory’ depends on the degree of support the government can get from the civilian population. Such support is more likely gained through securing a swift restoration of basic services.80 It shall be argued below that the parallel application of ESC rights to the obligations under IHL may indeed result in a legal obligation on states to take concerns about post-conflict reconstruction into account when making military-target decisions. Basing this important argument primarily on moral and political considerations as Haines does, may, however, make it vulnerable to criticism from IHL scholars who are eager to sustain the separation of ius in bello and ius ad bellum. 77 Ibid., p. 138. 78 Ibid.; see a similar argument by Boivin (2006), p. 53. 79 Haines (2006), p. 140. 80 Further see infra, section 4.2.4.



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In this context, it can be recalled that for instance an argument by Bothe was widely rejected. Bothe put forward that limited aims of a military campaign conducted with reference to the emerging doctrine of humanitarian intervention (ius ad bellum) should have an influence on the range of objects that can legally be attacked as military objectives (under the ius in bello). Reasons for this criticism were that this would pose a disproportionate burden of minimising civilian casualties on only one party to the conflict that pursues these limited aims, whereas the other party would follow less strict rules.81 In the context of NATO’s Kosovo campaign in 1999, Bothe had argued that the humanitarian aim of the undertaking should impose ‘more severe restraints … on the choice of military targets … than in a ‘normal’ armed conflict’.82 Requiring the party to the conflict who acts/intervenes on humanitarian grounds to follow stricter rules of IHL than other parties to the conflict might indeed amount to an undue conflation of the ius in bello and the ius ad bellum. Even though it implies an opposite effect on the degree of limitations to means and methods of warfare that one party to the conflict can deploy, it resembles earlier calls that, in an IAC where one party acts in self-defence, this party should not be bound by the IHL restrictions on means and methods of warfare.83 This undermines the protection IHL gives to all victims of war, regardless of the political motives and ius ad bellum arguments that may drive governments or non-state armed groups to go to war. This problem can to some extent be bypassed when the requirement can be based on legal obligations flowing from IHRL—notably the ICESCR—that are applicable in parallel to the obligations under IHL, at least to the state party to the conflict. IHRL does not form part of the ius ad bellum, and in situations of NIACs where a state is fighting a non-state armed group on its territory, this state clearly has human rights obligation towards its population, even if this population is living in territories under the control of the non-state armed group, and even if this population supports the armed group. This is still the case when the non-state armed group does not have the same obligations, since it is arguably not bound by IHRL, at least not to the same extent as the state party.84 81 Parks (2006), pp. 99–100 (including his n. 121); similarly Sassòli and Cameron (2006), p. 67. 82 Bothe (2001b), p. 535. 83 See the discussion and sources cited by Greenwood (2008a), pp. 10–11; and Roberts (2008), pp. 947–948. 84 The question of whether integrating IHRL obligations into the making of militarytarget decisions in NIACs primarily for the governmental side unduly interferes with the

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The discussion now turns to showing in more detail that the parallel application of ESC rights and IHL rules on targeting military objects makes it a legal obligation for states to take concerns about post-conflict reconstruction into account when military objectives are identified. This will strengthen the arguments brought forward by Haines. It will then also be highlighted that this obligation seems not to pose unreasonable restraints on states involved in NIACs from a military strategic point of view, as literature on counterinsurgency operations suggest. 4.2.3. Obligations Flowing from the Right to Health As briefly outlined above, in situations of active combat the measures taken for the implementation of the minimum core right to health and other minimum core ESC rights will realistically centre on the promotion and facilitation of the work of national and international humanitarian actors.85 These actors support an existing or, if necessary, operate an alternative health system that allows individuals to access basic medical care when they are unable to enjoy their usual physical and economic access to health facilities because of the on-going armed conflict. This would essentially be what the CESCR describes as state’s obligations to fulfil (directly provide) minimum core rights of disadvantaged and marginalised individuals who have no other means to survive in times of crisis.86 An existing health system may be disrupted, whether because of on-going hostilities, because the government has lost control over parts of its territories, or because the government has diverted considerable resources away from health care toward military operations. More far-reaching elements of states’ obligations that aim at creating and maintaining people’s economic and physical access to a functioning health system in a more sustainable manner will move to the background through the parallel application of IHL rules allowing for attacks on military objectives, including ‘dual-use’ objects, as the lex specialis.

equality of belligerents that is important for IHL is discussed in some more detail infra, section 5.3.3. 85 See supra, part 3; chapter IV, section 5.1; and chapter VIII, part 3. 86 CESCR, General Comment 12 (1999), para. 15, describes states’ obligations to fulfil (provide) as follows: ‘…whenever an individual or group is unable, for reasons beyond their control, to enjoy the right to adequate food by the means at their disposal, States have the obligation to fulfil (provide) that right directly. This obligation also applies to persons who are victims of natural or other disasters.’



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Yet, they cannot be ignored completely. As outlined in chapter IV,87 the principal aim of the right to health as an entitlement right is to give individuals access to ‘a system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health’.88 Such access should be affordable, and goods and services provided shall be acceptable and of good quality.89 As also described in some detail in chapter IV,90 the principle of progressive realisation in accordance with maxi­mum available resources ensures that demands on states for the imple­mentation of ESC rights are not unrealistic. Guided by an internationally-defined minimum core right to health, states have to define what goods, facilities, services and programmes individuals can access immediately under a nationally-defined minimum core right to health, taking account of national particularities, including available resources. The CESCR’s General Comment on the Right to Health suggests that the essential health system that is to be built for the implementation of the minimum core right to health includes ensuring reproductive, maternal and child health care; providing immunisation against the major infectious diseases in the community; taking measures to prevent, treat and control epidemic and endemic diseases; providing education and access to information concerning the main health problems in the community; and providing appropriate training to health personnel.91 Building such a basic sustainable and affordable health system that meets the most prevalent health needs of the population aims to ensure that individuals stay above a health baseline below which nobody should find him/herself. Under their non-core obligations, states have to constantly improve and expand the health system to enable individuals to live a life in dignity and function adequately in society in the long-term. It is thus clear that even the scope of internationally-defined minimum core obligations exceeds the obligation to directly provide emergency health care through national and international humanitarian organisations to civilians in need. This is strengthened by the fact that measures 87 In particular chapter IV, section 4.4 and part 5. 88 CESCR, General Comment 14 (2000), para. 8; and Report of the UN Special Rapporteur on the Right to Health, A/HRC/7/11, 31 January 2008. 89 See chapter IV, part 5. 90 Ibid., section 4.3. 91 General Comment 14 (2000), paras. 44 (a)-(e); Toebes (1999), p. 284, identified similar elements as the core of the right to health: ‘maternal and child health care, including family planning; immunisation against major infectious diseases; appropriate treatment of common diseases and injuries; provision of essential drugs.’ See also chapter VII, sections 4.2.2 and 4.3.2 on further details of the core content of the right to health.

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taken for the implementation of ESC rights may require a concentration on the realisation of minimum core obligations as a ‘nuanced priority’ only, i.e. that they cannot ignore the further-reaching non-core obligations the realisation of which is the ultimate aim of the ICESCR.92 As mentioned above, more far-reaching obligations to create and maintain a sustainable health system move to the background in active combat situations. As soon as active military operations are over or become less intense, however, and the situation gets more stable, there is an obligation to refocus on the implementation of more extensive minimum core and non-core obligations that aim at the restoration and development or creation of a functioning health system.93 This is driven by the object and purpose of the right to health and the ICESCR. This could, for instance, mean to rebuild roads and bridges that are essential for people to access hospitals and other health care facilities, as well as to ensure the functioning of electricity systems as soon as possible after active hostilities have subsided. Fairly quick restoration of basic infrastructure and basic public services can be seen as a legal requirement even under the minimum core obligations of the ICESCR, since without it there is a danger that poverty spreads and people remain dependent on humanitarian aid long time after the conflict has ended.94 Ensuring people’s minimum core ESC rights through direct delivery of humanitarian aid is never a good (let alone optimal) solution under the ICESCR.95 It can merely be a temporary solution in times of emergency that alleviates the most urgent shortcomings. It seems therefore a violation of minimum core obligations applied alongside the IHL rules on the conduct of military operations to destroy ‘dual-use’ objects as, for example, bridges, roads, electricity and other parts of the infrastructure to an extent that such restoration becomes possible in the remote future only.96 This does not seem to contradict the basic assumption that IHL is the lex specialis in situations of active combat. Based on the argument made 92 See chapter IV, section 4.4. 93 CESCR, General Comment 14 (2000), para. 37, e.g. refers to states’ obligations to ‘create, maintain and restore the health of the population’. 94 See also infra, section 5.2; chapter VII, section 4.3; and chapter VIII, part 2. 95 This is particularly clear from the remark by the CESCR that ‘the right to adequate food shall … not be interpreted in a narrow or restrictive sense which equates it with a minimum package of calories, proteins or other specific nutrients’. Rather, the ‘right to adequate food is realised when every man, woman and child, alone or in community with others, have physical and economic access at all times to adequate food or means for its procurement’ (CESCR, General Comment 12 (1999), para. 6). 96 See also the argument by Haines (2006), p. 140.



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in section 3 above and in chapter II, it is clear that even if IHL is applied as the lex specialis and sets aside some elements of minimum core and noncore obligations under the rights to health in these situations, these setaside (general) obligations still influence the interpretation of the (special) IHL rule. Integrating ESC rights into the IHL definition of a ‘military objective’ in the form of a requirement for considering post-conflict reconstruction concerns in the process of making military-target decisions, could ensure this: the overall object and purpose of the ICESCR and the right to health—to establish an accountable health system that allows individuals’ sustainable access to essential health care in dignity—would not be set aside entirely by the parallel application of IHL.97 The next section aims to show that taking the need for the swift reconstruction of essential infrastructure and restoration of basic public services into account in the making of military-target decisions can indeed become a ‘military advantage’ in counterinsurgency operations. Thus, integrating the right to health and other ESC rights into IHL militarytarget decisions will not necessarily conflict with consideration of military strategists in NIACs. 4.2.4. Characteristics of Counterinsurgency Operations and the Notion of a ‘Military Advantage’ Due to the developments in Iraq and Afghanistan and the involvement of international forces in the armed conflicts in these countries, quite some literature on insurgency and counterinsurgency has been published in recent years.98 The US adopted a new Counterinsurgency Field Manual in 2007.99 One of the main propositions in this literature is that it is of utmost importance for the counterinsurgents to win over the general population and gain its political support, since insurgents can only thrive with at least the passive acquiescence of the population. Based on this recognition, it is suggested to employ the minimum necessary force rather than the maximum force permissible in counterinsurgency operations. The US Manual on Counterinsurgency makes this clear with statements like ‘an operation that kills five insurgents is counterproductive if collateral damage leads to the recruitment of fifty more insurgents’100—this collateral damage can    97 See also chapter II, sections 3.3 and 3.4.     98 E.g. Metz (2007); Shultz and Dew (2006); Kilcullen (2009); and many contributions in the volume by Mahnken and Maiolo (eds.) (2008).     99 US Army/Marine Corps, Counterinsurgency Field Manual (2007). 100 Ibid., para. I-141, p. 45.

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refer to the loss of civilian life, but also of civilian property and essential civilian infrastructure. Moreover, as observed in the introduction to the Manual, any use of military force should not unnecessarily interfere with ‘non-kinetic activities like providing electricity, jobs, and a functioning judicial system’101 that are important for success in counterinsurgency operations. It holds that ‘in counterinsurgency, civilian and non-kinetic actions become the soldiers’ exit strategy’.102 This shows that, from the finding above, that the simultaneous application of ESC rights and IHL arguably results in a legal obligation to take concerns about swift reestablishment of basic services to civilians into account when determining a military advantage/objective, does not necessarily contradict military doctrine often applied in NIACs. On the contrary, the statement that ‘counterinsurgents seek to expand their efforts along the rights continuum, beyond physical security toward economic, social, civil, and political rights’103 for the overall mission success, shows that this finding is in harmony with military doctrine in NIACs.104 Or, formulated negatively, substantial destruction of infrastructure can result in a long-term ‘military disadvantage’ when it undermines swift reconstruction and thereby challenges the population’s trust in the government. It can also be recalled that throughout history there have been military strategists who recognised this fact.105 As far as non-state armed groups are concerned, in order to be militarily successful, they also need at least the tacit support of the community. Communities will arguably be more supportive of armed groups if these groups are responsive to their concerns, including their socio-economic needs. Thus, even for non-state armed groups it can make strategic sense to take ESC rights into account when devising a military strategy.106

101 Ibid., Introduction by Sewall, p. xxx. 102 Ibid., p. xxxi. 103 Ibid., p. xxx. 104 As an example where these findings have not been applied and where the ‘victory’ over insurgents cannot therefore be described as sustainable are the Russian military’s action in Chechnya and the US’ experience in Vietnam. In particular after the first NIAC between the Russian armed forces and Chechen rebels which ended in 1996 there was no serious attempt from the Kremlin to reconstruct the vastly destructed Chechen cities and villages. This arguably contributed to the outbreak of the second Chechen war in 1999. For more detailed analysis see Schultz and Dew (2006), chapter 5, pp. 130–131. 105 See chapter III, section 2.1. 106 At least some non-state armed groups seem to recognise this fact, see e.g. Code of War of the National Liberation Army (ELN), operating in Colombia; the Rules of Conduct of the Revolutionary Armed Forces of Colombia, People’s Army (FARC-EP) and ELN; and



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The last substantive issue to be discussed in this chapter is the question of how the parallel application of ESC rights influences the interpretation of the IHL principle of proportionality which has to be followed in any military-target decision. 5. Integrating the Right to Health in IHL Military-Target Decisions: The Principle of Proportionality As mentioned above, identifying objects as military objectives does not yet make attacks on these objects lawful under IHL. Before an attack is launched, it must in addition be ensured that the attack does not violate the principle of proportionality. The principle of proportionality prohibits ‘attack[s] [on a military objective] which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated’.107 Most analysts agree that the principle of proportionality applies to NIACs in some form as a matter of customary IHL.108 Disagreements concerning its interpretation and application to NIACs invite not only parallels to the interpretation and application of the principle of proportionality in IACs, but also emphasis on the simultaneously applicable IHRL in this process. In the following section, first, the debate about the interpretation of the principle of proportionality in IHL is examined, focusing on its application to attacks on ‘dual-use’ objects. Second, it is once more shown that attacks on ‘dual-use’ objects can result in violations of various aspects of states’ minimum core obligations under the right to health some of which may become apparent only in the long-term. It is then argued that there is a legal obligation to factor these possible violations into the IHL proportionality analysis as a consequence of the simultaneous applicability of ESC rights and IHL, in particular the long-term adverse impact on public health. Difficulties with and objections to this requirement are also discussed.

the Code of Conduct of the National Redemption Army (NRA), operating in Uganda, reprinted in (2011) 93 IRRC 483, pp. 490–491, 493 and 494 respectively. 107 Arts. 51(5)(b) and 57(2)(a)(iii) AP I; and rule 14 ICRC Study, Vol I, p. 46. 108 As discussed in chapter III, section 4.5.

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The main challenge with the application of the IHL principle of proportionality is that it requires balancing two very different considerations, namely, the loss of civilian life, injury to civilians and damage to civilian objects against an expected military advantage—an undertaking that can be described as bizarre.109 In particular for those who are used to conducting analysis based on human rights, it seems absurd to accept that loss of human life can be justified with the (mere) expectation of achieving a military advantage. It is, however, one of the most prominent examples of the unavoidable balancing of military necessity and the principle of humanity which is an inherent feature of IHL. Even if the weight put on the principle of humanity may have grown in IHL over the years, without accepting the continuing role of military necessity, IHL would lose its relevance for regulating warfare.110 Certain aspects of the balancing act have been defined in some more detail: a ‘military advantage’ is interpreted in a similar way as the first element of the IHL definition of a military objective outlined above.111 Despite this modest clarification, it remains subject to ‘inevitably subjective value judgements to compare military advantage with civilian losses or damage to civilian objects, especially when the probability of gaining the advantage or affecting civilians is lower than 100% and different for each’.112 Thus, actors retain a considerable margin of discretion in the evaluation of the ‘military advantage anticipated’ and the ‘expected incidental loss of civilian life, injury to civilians, and damage to civilian objects’; in particular because of the ‘prognostic character of any such assessment’.113 Investigating this evaluation through jurisprudence or research on state practice is impeded by states’ reluctance to make available their

109 E.g. Dinstein (2004), p. 122, (including his n.63); similarly, Watkin (2005), p. 23; and Schmitt (2005), p. 51, holding that ‘it is impossible to relate objectively the value of military advantage to collateral damage and incidental injury; they are dissimilar values that cannot be compared meaningfully in extreme cases’. 110 This is reflected in the observation in the ICRC Commentary (AP I/II), para. 2219, holding that the purpose of the principle of proportionality ‘is aimed at establishing an equitable balance between humanitarian requirements and the sad necessities of war’; see also the discussion in chapter III, section 4.5. 111 See supra section 4.2.1. 112 E.g. Sassòli and Cameron (2006), p. 63; see also, among others, Dinstein (2004), p. 122. 113 Oeter (2008), p. 205.



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(classified) records on the making of target decisions, including how the proportionality of an attack on a particular object is assessed.114 Nonetheless, the following paragraphs reflect in more detail on the question of what damage to civilians and civilian objects over time and space has to be factored into an evaluation of whether a damage is ‘excessive’/disproportionate in relation to the military advantage anticipated. This will lay the foundation for discussing the possible consequences of the parallel application of right-to-health obligations for the interpretation of the IHL principle of proportionality, including a possible further restriction of the afore-mentioned margin of discretion. Dinstein holds that ‘excessive’ collateral damage is a damage which is ‘clearly discernible’.115 Supporting this argument is the wording chosen in the ICC Statute which adds the adverb ‘clearly’ before ‘excessive’.116 At the same time, Dinstein emphasises that the understanding that ‘excessive’ applies only when the ‘disproportion is unbearably large’ goes too far.117 He gives the obvious examples that the elimination of a single sniper in a village at the cost of hundreds of civilian casualties would be clearly excessive; while destruction of an enemy artillery battery operating within the village might be lawful, even at the cost of numerous civilian casualties.118 These are obvious examples—but they leave important questions unanswered. For instance, it remains subject to considerable debate whether the medium- and long-term civilian death and suffering connected to the destruction of a particular military objective will flow into the evaluation of what constitutes ‘excessive’ collateral damage, in addition to the direct death, injury and damage caused to civilians and civilian objects.119 This is particularly relevant with regard to ‘dual-use’ objects that can at a specific point in time qualify as military objectives. Greenwood observed in 1997 that in IHL the principle of proportionality ‘has always been considered in terms of the immediate effect of an attack upon the civilian population, that is, the number of civilians killed and injured and the quantity of civilian property destroyed or damaged in an air raid itself’.120 This opinion seems to be held also by some experts 114 This is noted by Sassòli and Cameron (2006), p. 71. 115 Dinstein (2004), p. 120. 116 Art. 8(2)(b)(iv) ICC Statute. 117 Dinstein (2004), p. 120. 118 Ibid., pp. 122–23; also, among others, Fellmeth (2007–08), pp. 487–489. 119 See e.g. HPCR Commentary (2010), p. 91. 120 Greenwood (1997), p. 461.

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who endorsed HPCR Manual on International Law on Air and Missile Warfare in 2010. The Commentary to the Manual suggests that ‘the members of the Group of Experts could not agree as to what extent (if at all) indirect (“reverberating”) effects of attacks have to be factored into the proportionality calculation’.121 Yet, many IHL specialists argue differently, calling for taking into account expected indirect deaths and suffering of civilians that occur in the medium- and long-term (so-called ‘reverberating’ effects) when ‘dual-use’ objects are targeted; and this understanding seems to dominate today’s debate among IHL experts.122 Criticism that such a requirement will oblige planners of a military campaign ‘to engage in an esoteric estimation to determine at which point the reverberating effect becomes so distant from the military action as to be too attenuated for proximate cause’123 can be met at least partly by specifying that longterm effects have to be factored into the proportionality analysis only ‘as far as they are foreseeable’.124 This seems to be recognised by states, since at least the British Manual of the Law of Armed Conflict requires commanders to take into account ‘foreseeable effects of attack’.125 It goes on to explain that an attack on a military fuel storage depot where there is a ‘foreseeable risk of the burning fuel flowing into a civilian residential area and causing injury to the civilian population’ should not be carried out if this injury were excessive in relation to the military advantage anticipated from the attack.126 This argument can be applied by analogy to the context of ‘dual-use’ objects, as there is no reason why similar ‘foreseeable effects’ for the civilian population, for example loss of access to water, spreading of communicable diseases or detrimental environmental effects, cannot be identified and be taken into account in a similar manner before ‘dual-use’ objects are attacked. Adverse medium- and long-term consequences of the destruction of certain ‘dual-use’ objects can often be described as violations of the right 121 HPCR Commentary (2010), p. 91 (emphasis added); the view seems also shared by the US Military, as noted by Shue and Wippman (2001–02), pp. 566–567; and Rizer (2001), p. 7. 122 For example, Sassòli and Cameron (2006), p. 67; Bothe (2001a), p. 649; Hampson (1993), p. 100; Crawford (1997), p. 114; Shue and Wippman (2001–02); Schmitt (2002), p. 393; and the views of various commentators summarised in Lewis (2003), pp. 504–507. For the context of the destruction of the only power plant in the Gaza Strip by the IDF in summer 2006 see Tomuschat (2006), p. 187. 123 This criticism is anticipated and refuted by Crawford (1997), pp. 114–115. 124 Sassòli and Cameron (2006), p. 67; and HPCR Commentary (2010), p. 91. 125 UK Manual of the Law of Armed Conflict (2004), p. 86, para. 5.33.4. 126 Ibid.



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to health and other ESC rights, including their minimum cores. Applying human rights obligations in parallel to the IHL principle of proportionality in the making of military-target decisions may therefore have two interrelated effects: an analysis informed by states’ obligations flowing from the right to health will first help to expose possible negative mediumand long-term effects of certain attacks for the civilian population and thus make them more foreseeable for the planner of a military campaign. This is particularly so when it is possible to reveal those effects with the help of emerging data collected by public health experts. Second, it will establish a separate legal obligation for state parties to the ICESCR to factor these foreseeable medium- and long-term effects into their proportionality analysis, and at the same time strengthen the existing obligation under IHL.127 This argument shall be developed with the example of attacks on ‘dualuse’ objects in the following section: the destruction of roads or bridges that constitute important elements of the transport infrastructure of a country or region, as well as of energy producing facilities that are used for civilian and military purposes alike. An attempt is made to elucidate more exactly what a planner of a military campaign would be required to consider when conducting his/her IHL proportionality analysis with obligations under the rights to health integrated into such analysis. 5.2. The Right to Health and the IHL Principle of Proportionality For this section, it is assumed that a road, bridge or energy-generating facility qualifies as a military objective in IHL applicable to NIACs, and that some sort of military advantage can be anticipated from their destruction that is to be weighed against the expected ‘incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof’ under the IHL principle of proportionality. The destruction of these objects can interfere with both, states’ obligations to build and maintain an effective health system, and with the obligation to directly provide access to essential health care through facilitating the work of humanitarian organisations in times of emergency.128 127 As noted, most commentators are of the opinion that long-term effects on civilian life from attacks on military objectives have to be factored in the proportionality analysis as an obligation under IHL. This, however, is not shared by all states. See n. 196 in Boivin (2006), p. 50, observing that while taking long-term consequences into account is considered appropriate by states, it is not believed to be required as a legal obligation under IHL. 128 See the details given supra part 2 and section 4.2.3.

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The destruction of a bridge/road can make it impossible to directly deliver essential humanitarian assistance to vulnerable civilians, including medical aid.129 Unless this impossibility is limited to a short period of time, for example because there clearly are alternative routes for the delivery of aid to civilians in need, an attack on the bridge/road is most likely to be described as disproportionate.130 First, this is based on the fact that it is difficult to envisage a situation where the resulting malnutrition with all its adverse consequences for public health could be seen as proportionate to an anticipated military advantage from the destruction of the bridge/ road. For instance, ‘wartime destruction and disruption of the transportation infrastructure (roads, bridges, railroad systems; communications and electricity) weakens the ability to distribute clean water, food, medicine and relief supplies, both to refugees and to others who stay in place. … Shortages and limited access severely strain health-care professionals’ ability to deliver treatment and aid sufficiently’.131 Many civilian deaths result from such destruction and disruption, in particular in low-income countries. Second, any other interpretation would mean allowing IHL as the lex specialis to fully overrule states’ obligations under the ICESCR—even the elements of minimum core obligations that step in in times of crises, and require states to ensure direct delivery of emergency medical aid to civilians in need, through the work of national or international humanitarian organisations. This would go against the understanding of the function of the lex specialis maxim that was set out above,132 as well as against the pronouncement of the ICJ that IHRL remains applicable in times of armed conflict as long as it is not derogated from, and consequently exerts some influence on the application of IHL.133

129 E.g. Report of the UN Special Rapporteur on the Right to Food on His Mission to Lebanon, A/HRC/2/8, 29 September 2006, paras. 14–16; Report of four UN Special Rapporteurs on Their Mission to Lebanon and Israel, A/HRC/2/7, 2 October 2006, paras. 49, 51, 63 and 67; Report of the Commission of Inquiry on Lebanon, pursuant to Human Rights Council Resolution S-2/1, A/HRC/3/2, 23 November 2006, paras. 20, 137–138; similarly, in remote areas of the Democratic Republic of the Congo the destruction of airfields prevented humanitarian organisations to access vulnerable civilians, see Report of the UN Secretary-General on the Protection of Civilians in Armed Conflict, S/2007/643, 28 October 2007, para. 36. 130 See also the finding of the Commission of Inquiry on Lebanon, pursuant to Human Rights Council Resolution S-2/1, A/HRC/3/2, 23 November 2006, para. 147. 131 Ghobarah, Huth and Russett (2003), p. 193. 132 See supra, part 3 and chapter II, part 3. 133 ICJ, Wall Opinion, para. 106.



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The internationally-defined components of minimum core obligations listed above134 require states to create and maintain an accessible health system. Looking at these can highlight the ‘reverberating’ effects that can be caused by attacks on ‘dual-use’ objects such as roads, bridges and electricity. To name but a few examples, it may disrupt immunisation campaigns and control and treatment measures of epidemic and endemic diseases;135 prevent patients reaching health facilities and healthprofessionals to reach patients;136 and it may prevent the delivery of essential drugs and medical equipment—all elements mentioned in the CESCR’s General Comment 14.137 Together with possible direct destruction of hospitals and the disruption of electricity, such interference with obligations to maintain a health system is a major cause for rising death rates in countries affected by armed conflicts, primarily due to spreading diseases (mainly acute respiratory infections, diarrhoeal diseases, maternal and neonatal morbidity, tuberculosis and malaria) and malnutrition. Often, such indirect deaths and suffering occur in the long-term—long after the conflict has ended— and have therefore often been overlooked.138 Five surveys conducted by the International Rescue Committee in the Democratic Republic of the Congo document these great numbers of long-term deaths,139 as do other studies.140 The number of non-battle deaths in armed conflicts occurring 134 Supra section 4.2.3; and chapter VII, sections 4.2 and 4.3. 135 E.g. findings by Currea-Lugo (2001), pp. 1122–1124; and report Reuters News Agency, ‘South Asia Violence Hurts Polio Eradication Fight’ (22 May 2009). 136 E.g. Report of four UN Special Rapporteurs on Their Mission to Lebanon and Israel, A/HRC/2/7, 2 October 2006, para. 63. 137 CESCR, General Comment 14 (2000), paras. 43 and 44. 138 Ghoborah, Huth and Russett (2003); see also infra n. 140. 139 For details see: http://www.rescue.org/special-reports/congo-forgotten-crisis [last accessed 18 September 2012]; see also CESCR, Concluding Observations—Democratic Republic of the Congo, E/C.12/COD/CO/4 (2009), para. 34, where the Committee expressed deep concern that ‘4 million people have died since the conflict began and that most deaths were caused by preventable and treatable illnesses’. 140 Lacina and Gleditsch (2005); they estimate the percentage of battle deaths (i.e. those who died directly from violent action in war) of the total number of war deaths that occurred in different conflicts after the Second World War. They conclude that the percentage of actual battle deaths is unexpectedly low compared to the overall number of war deaths (see in particular their table 4, p. 159). See also Daponte’s observation with regard to the destruction of the Iraqi electricity grid in the first Gulf war: ‘The substantive result of this research is that in modern warfare, postwar deaths from adverse health effects account for a large fraction of total deaths from war. In the Gulf war, far more persons died from postwar health effects than from direct war effects. Although the quality of demographic data from wars may be poor, this result is likely to hold even when one considers possible errors and uncertainty in the data’ (Daponte, 1993); see also, Skoens (2007); Garfield (2008),

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in the long-term due to increased levels of disease and malnutrition are particularly high in low-income countries where the pre-conflict health status of the population was already low.141 Some of the adverse effects of the destruction of important elements of the health system can be mitigated by the provision of humanitarian assistance during active combat. It is unlikely, however, that humanitarian assistance prevents the deterioration of a functioning public health system in the long-term. As argued above,142 as soon as active hostilities are over, people have a minimum right to access basic health services under the ICESCR in a more sustainable manner than through humanitarian assistance—i.e. through gaining economic access to a basic health system. Thus, foreseeable long-term effects on public health of attacks on certain objects cannot be ignored in an IHL proportionality analysis, and have to be factored in as a result of the parallel applicability of IHL and  ESC rights. This way, states’ obligations flowing from the minimum core right to health to maintain existing access to primary health care would exert their influence on military-target decision making, even if they are to some extent set aside by IHL rules as the lex specialis that allow for attacks on military objectives.143 The more exact influence of long-term public health effects of an attack on the proportionality analysis would of course also depend on the size of the military advantage that is anticipated from that attack. 5.3. Responding to Anticipated Objections The following section responds to three objections that could be raised against the suggested legal implications of integrating the right to health and other ESC rights into the IHL principle of proportionality. p. 28, estimating that in the 190 armed conflicts that took place in the time after the Second World War and 2007, 17 million people died from direct causes (violence) and 34 million from indirect causes; and ICRC, Results of Opinion Surveys (2009). 141 Data collected from Kosovo, a relatively well developed country, between February 1998 and June 1999 showed that the increase in the mortality rate in this case was mainly due to an increase in deaths resulting from direct violence, see Spiegel and Salama (2004); Garfield (2008), pp. 29–32; and for a similar finding in regard to Lebanon’s cancer-care system see Ahmad (2006). 142 Supra section 4.2.3. 143 Tomuschat even brings forward what he calls a ‘radical’ thought: to abandon the concept of collateral damage altogether as a consequence of accepting the influence of IHRL on IHL. He, however, recognises that this would undermine the foundations of IHL (Tomuschat (2010), pp. 20–21).



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5.3.1. Overburdening Military Commanders One could object that planners of military campaigns cannot possibly foresee all violations of minimum core ESC rights when planning attacks on certain objects, let alone decide when violations that manifest in the long-term become too remote from military action to reasonably be factored into a proportionality analysis.144 In response it can be observed that the parallel application of IHL and the right to health would only require making a reasonable assumption about the disruption that may be caused to the various essential components of an accessible health system that were mentioned above. For example, military planners could analyse what likely impact a military operation would have on civilian accessibility to reproductive, maternal and child health care in a particular region, the treatment and control of epidemic and endemic diseases, or the running of an immunisation campaign. This promises to result in making likely adverse public health consequences of attacks on particular ‘dualuse’ objects more visible and foreseeable, even if they may only occur in the long-term. If, moreover, violations of different components of the right to health as a consequence of the destruction of certain ‘dual-use’ objects can be shown more effectively through epidemiological data which demonstrates their immense scope in the medium- and long-term, the call for taking them into account in a proportionality analysis would become even more convincing. Accumulating data from different armed conflicts documenting short-, medium- and long-term impacts on public health of the destruction of certain ‘dual-use’ objects would help to support a causal link between specific attacks and this impact more clearly.145 To some extent, this has happened with attacks on electrical facilities. Data collected in Iraq after the Gulf War of 1991 estimated that more than 70,000 civilian deaths could be directly attributed to the systematic elimination of Iraq’s electrical power,146 among them many children.147 Causes of death were the sharp increase in the spread of waterborne and other 144 See e.g. Greenwood (1993), p. 79. 145 For this reason, there are calls for a better cooperation between public health experts and epidemiologists, who are able to collect reliable data, and human rights specialists; see Thoms and Ron (2007b); and Tam et al, (2004). 146 Crawford (1997), p. 110; another study by Daponte (1993), a demographer in the US Census Bureau, estimated that 111,000 civilian deaths resulted from war-induced health effects, whereas 3,500 civilians died from direct war effects. 147 Daponte (1993), estimates that approximately 70,000 of the 111,000 civilian deaths were children.

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diseases148 and the severe disruption of the public health system.149 This resulted in military actors trying to find ways of minimising not only collateral damage that occurs directly after an attack on elements of an electrical system, but also the damage that occurs in the long-term.150 For example, attacks directed against switching stations rather than power plants have been promoted, since these are easier to repair and therefore do not cause as lasting suffering to the civilian population.151 This shows that military planners are ready to increase their horizon of what they can reasonably predict as an effect of a particular attack and change their behaviour accordingly.152 It should be noted that there will always remain a degree of uncertainty regarding the exact effect of the destruction of a specific object, in particular when the effect that can be described as a violation of the right to health occurs in the long-term. Moreover, there are difficulties with obtaining relevant data in countries affected by armed conflicts to substantiate these effects. However, an inconvertible cause-effect relationship is not necessary to allow description of (inter alia) attacks on certain ‘dual-use’ objects as violations of ESC rights (occurring in the short- or long-term). A similarly realistic threshold of evidence is required for strengthening efforts to comply with the legal obligation to minimise these effects by taking them into account in a proportionality analysis. As with the attacks on electricity mentioned above, in practical terms this may involve identifying alternatives to attacks on ‘dual-use’ objects. For example, concerning attacks on roads and bridges it might be appropriate to control the movement of members of armed groups through roadblocks and checkpoints as far as possible, instead of destroying them to an extent that they can be used by neither non-state armed groups nor humanitarian actors, nor civilians wishing to access hospitals, schools, universities, working places, agricultural land, markets, etc. 148 WHO/UNICEF, Report on a Special Mission to Iraq, S/22328, 4 March 1991, pp. 14–17. 149 Described e.g. in Report to the Secretary-General on Humanitarian Needs in Kuwait and Iraq in the Immediate Post-crisis Environment by a Mission to the Area led by Mr Martti Ahtisaari, S/22366, 20 March 1991, paras. 20–27. 150 See e.g. the instruction of the UK Manual of the Law of Armed Conflict (2004) mentioned supra, ns. 125 and 126. In some cases, the military might even recognise that certain attacks or the use of certain weapons causes disproportionate civilian casualties per se, and therefore accept their complete ban. This has been the case with the 2008 adoption of the CCM. Evidence of the immense long-term civilian casualties that cluster munitions can cause was one reason for states to adopt the Convention. 151 Shue and Wippman (2001–02), p. 566; and Lewis (2003), pp. 505–506. 152 The doctrine of the IDF does not, however, seem to follow this trend, as mentioned supra, n. 49.



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5.3.2. Interference with the Balancing of the Principles of Military Necessity and Humanity Another objection could be that the requirement to consider human rights obligations in IHL proportionality analyses undermines one of the cornerstones of IHL: the balancing of military necessity against the principle of humanity that is inherent in the IHL principle of proportionality. It could be argued that the weight is shifted unduly toward the principle of humanity. This, however, can be refuted. The brief discussion about the understanding of a ‘military advantage’ from an attack that must be weighed against the ‘incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof’ showed that a ‘military advantage’ is always assessed with reference to the larger military operation of which an attack on a single object forms part.153 A fair balancing would therefore require consideration of the long-term fatal and non-fatal public health consequences for the civilian population as the other side of the equation.154 No unreasonable imbalance between the principle of humanity and military necessity will thus result from the strengthened obligation of taking into account medium- and long-term effects from an attack on ‘dual-use’ objects. 5.3.3. Interference with the Principle of the Equality of Belligerents The last objection to be mentioned relates to a general consequence of the parallel application of IHL and IHRL not limited to the influence of ESC rights on the IHL principle of proportionality: IHRL is arguably applicable primarily to states and therefore applying it in parallel to IHL obligations will result in states having to follow a stricter principle of proportionality than non-state armed groups.155 This could be problematic as it might undermine the equality of belligerents in IHL. The equality of belligerents is still widely regarded as a pillar of IHL upon which much of its effectiveness is based, since it guarantees equal treatment for individuals in the hands of the adverse party and thereby creates an incentive for parties to the conflict to comply with the law.156 However, as set out in chapter III, in practice, upholding the equality of belligerents and the related separation of ius ad bellum and ius in bello is

153 See supra, section 4.2.1. 154 This is noted by Shue and Wippman (2001–02), p. 571. 155 This has been touched on supra, section 4.2.2. 156 For an extensive discussion see Watts (2009).

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often problematic in NIACs.157 Governments retain their right to punish members of non-state armed groups for hostile acts against the state under domestic law, even if these acts do not constitute a violation of IHL of NIACs—something they are barred from doing with enemy combatants in IACs due to the POW-status.158 Non-state armed groups, on the other hand, are rarely able to try and punish governmental security forces under ‘national’ or under international law (Art. 6(2) AP II); and remain bound by domestic law throughout an armed conflict.159 In promoting a process of adapting IHL of NIACs more to the reality of conflicts involving diverse non-state armed groups through taking better account of their capabilities to implement IHL, there are even suggestions to reconsider whether it is reasonable to strictly uphold the principle of the equality of belligerents in IHL of NIACs.160 It seems, therefore, that calls for the preservation of the equality of belligerents and the related principle of reciprocity in IHL should not prevent the parallel application of ESC rights and IHL to the governmental side.161 States should not be able to avoid their IHRL obligations as long as there is no agreement on the extent to which IHRL also applies to non-state armed groups.162 The parallel application would only require states to apply the rules to which they bound themselves with the ratification of human rights treaties that are applicable regardless of the existence of a NIAC.163 Unlike in the on-going debate 157 See chapter III, section 4.6. 158 See ibid., and section 4.4. 159 In more general terms, this difficulty also reflects the problems with making the principles of the equality of belligerents and reciprocity work in asymmetric conflicts in which one party has substantially less power to inflict damage on the adversary than the other. For a discussion of the context of asymmetric conflicts, see Lamp (2011). 160 Sassòli (2010), p. 20; and the Debate in (2011) 93 IRRC 425 between Sassòli and Shany, pp. 426–431. This approach would also be supported by the fact that many states do not make a distinction in the instructions they give to their soldiers for the application of IHL in IACs and NIACs (this can at least be inferred from the state practice collected in Vol II of the ICRC Study). This can be taken as an indication that states are willing to follow a range of IHL rules, even if they engage with a relatively weak non-state armed group that may not be able to apply more than Art. 3 common to GC I-IV. For a similar argument of introducing the principle of common-but-differentiated responsibilities into IHL of IACs see Blum (2011a). 161 See also Sassòli (2010), p. 20; and the Debate in (2011) 93 IRRC 425 between Sassòli and Shany, pp. 431 and 435–436. 162 If this was the case, in practice, this would e.g. mean that when a state is fighting a relatively weak non-state armed group which does not control territory, it will not be obliged to attempt to capture members of non-state armed groups as required by IHRL, but could operate a ‘shoot to kill policy’ against members of non-state armed groups, regardless of the context in which a particular member of the non-state armed group is operating. 163 This is also observed by Olsen (2009), p. 454.



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on the extent to which human rights apply extraterritorially in IACs or in ‘extraterritorial’ NIACs, there is no question that human rights apply in states’ own territories where a NIAC may take place. Moreover, the discussion in 4.2.4 above showed that states themselves recognise that it can make strategic sense to apply ESC rights to NIACs, in particular to counterinsurgency operations. This is even the case in situations of NIACs, where one state or a group of states is fighting against a non-state armed group on the territory of a third state, as is currently the case in Afghanistan. This can be taken as a sign that states may be willing to apply IHL and ESC rights in parallel, even if the non-state party to the conflict is arguably bound by IHL only, and even if there is thus no full reciprocity regarding the applicable rules. This observation does not, of course, exclude an examination of the actual capabilities of different non-state armed groups to implement more far-reaching IHL rules164 and possibly various elements of obligations under the right to health and other ESC rights.165 Such an examination would help to gain a better understanding about the extent to which the principles of the equality of belligerents and reciprocity can be strengthened in NIACs, even if ESC rights are applied in parallel to IHL in NIACs.166 Last but not least it should be observed that the principles of the equality of belligerents and reciprocity seem to have lost some of their relevance for ensuring compliance with IHL and should therefore not prevent the parallel application of ESC rights and IHL for the state party to a NIAC. While it may be too early to claim that reciprocity is dead,167 it should not be overlooked that ‘new’ paradigms of compliance have emerged that can complement the principle of reciprocity as a traditional mechanism to ensure compliance with IHL (and IHRL) in NIACs, in particular when the conflicts are highly asymmetric.168 164 In particular those that go beyond Art. 3 GC I-IV and those that are not criminalised in Art. 8(2)(c) and (e) ICC Statute. See also the discussion in chapter III, section 4.6 and the suggestions by Sivakumaran (2011c). 165 It may well be that if one accepts that non-state armed groups are bound by IHRL, including by ESC rights, that the rule resulting from the parallel application of their IHRLobligations and their IHL-obligations will look different from the obligations of states that derive from IHL and IHRL. The capabilities of non-state armed groups would be of relevance here. For a suggestion that goes into this direction see Sassòli (2010), pp. 18–19. 166 While this analysis could not be conducted as part of this work, see chapter VIII for an initial examination of non-state armed groups’ obligations towards humanitarian organisations that may take on the implementation of states’ (and possibly non-state armed groups’) obligations flowing from ESC rights in situations of NIACs. 167 On this, see the discussion between Sivakumaran (2011c), pp. 241–242; the reply by Blum (2011b), pp. 269–70 and the rejoinder by Sivakumaran (2011b), p. 275. 168 For more details see Lamp (2011), in particular pp. 251–260.

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Building on the findings of the foregoing chapters, this chapter set out to explore the parallel application of IHL and ESC rights to situations of active combat. By way of example,169 it focused on the question of how the right to health can be integrated into IHL rules on means and methods of warfare, in particular the IHL definition of a ‘military objective’ and the principle of proportionality. There can be a substantive tension between IHL rules on the targeting of objects and various elements of the minimum core and non-core right to health. This tension is most prominent in regard to attacks on ‘dual-use’ objects that can qualify as military objectives in some circumstances, such as bridges, roads or electricity generating facilities. This tension can be eased with the help of the lex specialis maxim. Based on the findings of chapter II, non-core obligations as well as some elements of minimum core obligations flowing from the right to health are likely to be set aside by the parallel application of IHL rules on military targeting. If a certain ‘dual-use’ object is used for military purposes by a non-state armed group or governmental armed forces in an on-going NIAC, customary IHL rules regulating attacks on military objectives address this particular situation directly. Obligations under the ICESCR not to limit the right to health beyond what is permitted by Art. 4 ICESCR relate to it only implicitly. Yet, in accordance with the relativity of the function of the lex specialis maxim as well as the ‘omnipresence of general law’, the right to health cannot be overruled completely by the simul­ taneous application of IHL. In particular minimum core obligations flowing from the right to health which can neither be limited nor derogated from under IHRL, will have some influence on the interpretation and application of IHL rules on military-target decisions. The application of the lex specialis maxim thereby also supports complying with the systemic objective of the law. An attempt was made to concretise this rather abstract finding by considering how the right to health could be integrated in the different steps of making military-target decisions prescribed by IHL, and what practical implications this could have. Three main findings can be summarised. The first two relate to the integration of the right to health in the IHL definition 169 An analysis the results of which are likely to further strengthen the findings from this chapter, is the analysis of the parallel application of IHL rules on precautions in attack (rules 15–21 ICRC Study, Vol I, pp. 51–67) and different elements of the right to health.



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of a ‘military objective’; the third concerns the relationship between the IHL principle of proportionality and states’ obligations flowing from the right to health. First, the parallel application of states’ obligations under the right to health and other ESC rights will reinforce the rejection shared by most IHL experts of an overly broad interpretation of the phrases ‘purpose or use’ and ‘effective contribution to military action’ that are part of the IHL definition of a ‘military objective’. This broad interpretation equates an ‘effective contribution to military action’ with an ‘effective contribution to the enemy’s war-sustaining capability’. Adhering to such an understanding would result in an undue expansion of objects that qualify as military objectives by their ‘purpose or use’, including many ‘dual-use’ objects and economic targets. There is no question that, through the application of IHL as the lex specialis, room has to be given to the principle of military necessity inherent in these phrases in the determination of a ‘military objective’. However, attacks on such a wide range of targets interferes significantly with obligations under the right to health and other ESC rights without being justified by military necessity. Second, the integration of the right to health into the determination of a ‘definite military advantage’ and thereby a ‘military objective’ in IHL, will arguably require military-target decision-makers to consider the need for relatively swift reconstruction of essential civilian infrastructure after the active combat phase is over, as a matter of legal obligation. Supporting and further developing an argument by Haines, this is above all based on the right of individuals to enjoy, at the minimum, physical and economic access to a basic health system that meets the most prevalent health needs in a non-discriminatory and sustainable fashion. Implementing this minimum core right through the work of national and international humanitarian organisations in situations of active combat can only be a temporary solution under IHRL in times of emergency. This legal requirement does not seem to contradict military doctrine. In particular, in counterinsurgency operations it is important for belligerents to ensure swift reconstruction of essential infrastructure soon after the active combat phase is over to secure long-term support of the civilian population. Taking this need into account can thus bring about an essential ‘military advantage’ in a military operation, in particular in the long run. Third, incorporating states’ obligations under the right to health in the IHL proportionality analysis will arguably result in an obligation to include the adverse public health effects of an attack in the ‘incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination

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thereof’ that must be balanced against the ‘definite military advantage’ anticipated from an attack. This includes long-term effects. Thereby, the parallel application of ESC rights strengthens the argument advanced by some IHL experts and states that ‘reverberating’ effects of attacks should be included in the proportionality analysis as far as they are foreseeable. The obligation would ensure that a reasonable assessment is made of what impact the attack on a specific object will have on civilian capacity to access health facilities, goods and services that make up a nationally-defined minimum core right to health, ideally coinciding with the internationally-defined minimum core. This impact can be factored into the IHL proportionality analysis especially when long-term health consequences of attacks on certain objects can be substantiated with epidemiological data. Moreover, attacks on ‘dual-use’ objects that make it impossible to deliver humanitarian assistance to civilians in need, including essential medicines, medical care and equipment, will most likely be described as disproportionate. As an overall finding on the relationship between IHL and ESC rights in situations of active combat, the following observation can be made: While losing some of their relevance in situations of active hostilities, minimum core obligations with a longer-term aim to develop and maintain a health system that enables individuals to access primary health care independently and in a sustainable manner, will bring a long-term perspective to IHL rules on means and methods of warfare. By highlighting in particular medium- and long-term detrimental effects of attacks on civilians’ ability to enjoy different elements of their right to health and other ESC rights, these can be integrated in the IHL definition of a ‘military objective’ and the principle of proportionality. This long-term perspective is largely absent from IHL. Including it into the legal analysis already at a stage when active hostilities are on-going may contribute to preventing medium- and long-term public health consequences of certain attacks for civilians that often have great scope. It can, moreover, promote swift reconstruction of essential infrastructure and restoration of basic public services soon after active hostilities are over. Lastly, recognising this fact will help curb recent tendencies of adopting a rather conservative interpretation of IHL rules relating to the conduct of hostilities as can be observed in some parts of the “HCPR Manual of International Law Applicable to Air and Missile Warfare”.170 170 It should be noted that this Manual (adopted in 2010) applies only to IACs. Given the parallels that are regularly drawn between the interpretation of treaty rules applicable to



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An objection against the parallel application of ESC rights and IHL primarily for the state party to a NIAC could be that this results in an undue interference with the IHL principle of the equality of belligerents. It was observed that uncertainties as to the scope of non-state armed groups’ obligations under IHRL (as well as some IHL rules) shall not serve as an excuse for states not to honour their human rights obligations that apply regardless of the existence of a NIAC. This was suggested against the background of an emerging discussion of whether strict reciprocity could be upheld as the primary incentive for compliance with IHL in NIACs, in particular in those NIACs that are highly asymmetric.

IACs and customary rules applicable to NIACs (at least for the state party to the conflict) the Manual is, however, likely to be of relevance for situations of NIACs.

CHAPTER SEVEN

IHL AND THE RIGHT TO HEALTH: MITIGATING THE ADVERSE PUBLIC HEALTH IMPACT OF ARMED CONFLICTS 1. Introduction It has just been argued that integrating the right to health and other ESC rights in the process of making military-target decisions under IHL could contribute to limiting the damage to and destruction of objects that ensure civilian access to a basic health system. Such integration could thereby help to minimise the short-, medium- and long-term adverse public health impacts of NIACs on the civilian population. Nonetheless, armed confrontations will result in the destruction of important elements of infrastructure that are part of a health system, and will limit individuals’ freedom of movement. Hospitals and other health facilities may be destroyed or damaged despite the clear prohibition in IHL and the ICESCR to attack them. In addition, the numbers of individuals suffering from direct (for example injuries and psychological trauma) and indirect (for example increased rates of infectious diseases, insufficient care for mothers and children, complications of chronic diseases, malnutrition) health consequences of armed conflicts will put extra strains on existing health systems. NIACs are also related to deteriorating economic performance, which, together with the diversion of resources from health care to military spending, contributes to the negative health consequences of armed conflicts. This chapter concentrates on discussing states’ legal obligations under IHL and the right to health that address these and other health consequences of NIACs. Chapter VIII then turns to questions relating to humanitarian assistance that is almost inevitably provided to civilians affected by NIACs by national or international humanitarian organisations. It will be analysed to what extent the obligations examined in the following chapter VII are in fact implemented by humanitarian organisations in NIACs, and under what conditions states (and non-state armed groups) have to accept the assistance offered by humanitarian organisations given their obligations under IHL and the ICESCR. This also allows gaining an initial understanding of the possible scope of non-state armed groups’ obligations in this area.

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Many rules of IHL and obligations flowing from the right to health aim to mitigate the direct and indirect impact NIACs can have on public health. As will be shown, overall, IHL and the right to health complement each other well in this undertaking. This is why the lex specialis maxim is not resorted to in this chapter to the same extent as it was in chapter VI, where it was used mainly as a tool to resolve a substantive tension between IHL and the right to health. In the context of the current chapter, the lex specialis maxim is rather drawn on to promote the harmonious interpretation and effective complementary application of the right to health and IHL. In other words, it is used as guiding maxim determining whether in a particular situation more emphasis is to be put on the implementation of the minimum core right to health or on relevant demands of IHL when both relate to that situation. This is in line with the findings of chapter II that the exact function of the lex specialis maxim depends very much on the context (contextuality), as well as on the character of the two rules that apply simultaneously to a particular situation (relationality).1 As will be discussed below, armed conflicts can have differing effects on public health in different countries: while in high- and middle-income countries the greatest public health challenge is regularly posed by a rising number of people directly injured in on-going hostilities, in low-income countries the biggest threats to public health are often the spread of infectious diseases, and malnutrition. This difference demands a context-sensitive application of the lex specialis maxim. Some general observations on the different focus and approach of IHL and the right to health in addressing direct and indirect health consequences of armed conflicts and their relation to each other shall be made here, as these observations are of relevance for all the following sections. IHL focuses on alleviating the direct and immediate effects of armed conflicts on individuals’ health, mainly through rules on the provision of emergency medical treatment to those who are injured in on-going hostilities, above all wounded and sick combatants. This focus can be explained by the origin of (Geneva) IHL in the historical realities of the Battle of Solferino in 1859 between the French and Austrian armies. At Solferino, wounded soldiers roused Henry Dunant’s compassion, and it 1 See chapter II, section 3.3.



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was to their protection that the first Geneva Convention was adopted in 1864: the Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field. The civilian population in and around Solferino had not been directly affected by the battle.2 Gradually and reflecting the changing face of armed conflict, the protection IHL offered to wounded and sick combatants was extended to wounded and sick civilians after the Second World War. GC IV introduced some provisions aiming at the amelioration of the condition of wounded and sick civilians in IACs,3 but these provisions lagged behind the detailed regulation in GC I and GC II on the protection of wounded, sick and shipwrecked members of armed forces. For IACs this division has been overcome with the adoption of AP I in 1977 which protects wounded and sick combatants and civilians equally. Most of these provisions apply to NIACs as a matter of custom.4 Nonetheless, this original focus on the protection of wounded and sick combatants can explain some of the limits of the IHL rules discussed in the coming parts. States are also obliged under the right to health to provide emergency medical treatment to those requiring it, including to those who are wounded by armed hostilities. Yet, obligations flowing from the right to health go beyond this. As noted earlier, even under their minimum core obligations states are required to create and maintain a basic system that gives individuals economic and physical access to essential health facilities, goods and services. Their exact scope is to be determined at the national level in accordance with human rights principles and the internationally-defined minimum core right to health, and is thus likely to include those facilities, goods, services and programmes listed in the CESCR’s General Comment 14.5 Due to its wider scope and public health focus, the obligations under the ICESCR can, more than IHL, take account of the fact that the relationship between health and armed conflict goes beyond medical attention for the war-wounded, comprising many aspects and programmes of the health sector. 2 For a summary of the history of the protection of the ‘wounded and sick’ in IHL see Kalshoven (1989a), pp. 13–15; and Kleffner (2008), pp. 325–326. 3 See in particular Arts. 14–22 GC IV on the general protection of all wounded and sick civilians. 4 See in particular rules 25–26, 28–30, 35 and 109–111 ICRC Study. Most of these rules are backed with extensive ‘practice’ listed in Vol II of the Study. See also the commentary on relevant rules 25–31 by Breau (2007), pp. 175–182. 5 CESCR, General Comment 14 (2000), paras. 43 and 44, as cited in chapter VI, section 4.2.3; and infra sections 4.2.2 and 4.3.2.

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As highlighted in chapters IV and V, the scope of obligations flowing from the right to health and the measures to be taken for their implementation vary according to the circumstances. This may sometimes make the right to health more responsive to certain health consequences of NIACs than IHL with its more clearly-defined rules. IHL, by contrast, may at times give greater detail that will help to determine the more exact measures states have to take to ensure a minimum level of health care even in the exceptional context of armed conflict. Thus, returning to the use of the lex specialis maxim in this chapter, its sensitivity to context promises to help to identify whether IHL or IHRL is to be given more emphasis in a particular situation. It thereby promotes the complementary application of IHL and the right to health. 3. The Right to Health, IHL and the Diversion of Resources from Health Care to Military Spending One reason for the reduced functioning of health systems in NIACs is the diversion to the fighting of NIACs of resources allocated in peacetime for the progressive realisation of the right to health. States involved in NIACs are likely to allocate more resources to military and security policies, for instance to military build-up and training, counterinsurgency operations, intelligence gathering, etc. This may leave health systems underresourced.6 For instance, an overview of the performance of health systems in different Latin American countries that experienced NIACs on their territories indicates shrinking ministry of health budgets during these conflicts.7 Similar tendencies have been observed in health and military spending in South and North Vietnam during the 1970s,8 and in the US during the invasion of Iraq in 2003.9

6 See the theoretical and empirical assessment of the influence of military factors on education, health and development in low-income countries by Adeola, holding that ‘the opportunity cost of higher military spending includes lower budgetary allocation to health and other social services, and the consequent poor social well-being of the people in least developed countries’ (Adeola (1996), pp. 257–258). 7 Clements and Takaro (2008), p. 288. 8 Aluukian and Atwood (2008), p. 313. 9 Levy and Sidel (2008b), pp. 259–260; and Stiglitz (2003), holding that ‘Bush’s (admittedly wavering) commitment to fiscal prudence means that much, perhaps most, of the war costs will be offset by cuts elsewhere. Investments in education, health, research, and the environment will almost inevitably be crowded out. Accordingly, war will be unambiguously bad in terms of what really counts: ordinary people’s standard of living.’



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Moreover, the direct and indirect health consequences of NIACs will themselves increase, often considerably, the resources required for maintaining a functioning health system. The treatment of injuries caused by different weapons is significantly more expensive than basic primary health care interventions that benefit everyone. Giving an example from Zambia, Valenti et al state that the treatment of one Malaria case costs about 10–15 USD, whereas the treatment of a gunshot wound or landmine injury costs an average of 3,000 USD.10 In addition, NIACs regularly have detrimental effects on the economic performance of the respective countries—a fact that can result in shrinking health budgets as well.11 Neither IHL nor the ICESCR directly prohibit the diversion of resources from health care, education, social security, the implementation of a national food strategy etc. towards military spending; or a shift in spending within the health sector from primary health care to emergency care. The CESCR has recognised that the existence of an armed conflict can have detrimental effects on the availability of resources for the implementation of ESC rights, and that resource constraints resulting from armed conflicts can underlie ‘retrogressive measures’.12 Yet, as argued in chapter V, Art. 4 ICESCR sets both qualitative and procedural limits to the diversion of resources towards military spending away from the implementation of ESC rights.13 The following analysis of the legal obligations relating to such a diversion will mainly rely on these limits set by Art. 4 ICESCR, as well as on the understanding of what resources are ‘available’ within the meaning of Art. 2(1) ICESCR.14 To recall, under Art. 4 ICESCR limitations (including ‘retrogressive measures’) can only be imposed for the purpose of ‘promoting general welfare’ in a ‘democratic society’. Furthermore, limitations have to be ‘determined by law’, they have to be ‘compatible with the nature of these (ESC) rights’ (must respect nationally-defined minimum core obligations), and they have to comply with the principle of proportionality. IHL will not be used directly in this part since it does not contain comparable provisions directly relating to the question of the diversion of 10 Valenti et al (2007), p. 393. 11 Murdoch and Sandler (2002) conclude that NIACs have severe short-term negative impact on economic growth; see also the overview of economic literature on civil war given by Blattman and Miguel (2010), in particular part 4 on ‘Economic Legacies of Civil War’. 12 As discussed in chapter V, section 2.3.1. 13 See chapter V, sections 2.2 and 2.3. 14 As discussed in chapter IV, section 4.5.

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resources. In addition, some of the questions examined are not strictly speaking ius in bello questions.15 However, it should be kept in mind that IHL assumes that resources required for the implementation of IHL rules relating to the protection of the wounded and sick are indeed available to states, if not directly, then through the involvement of international humanitarian organisations that provide medical assistance to individuals in need. These rules arguably inform the minimum core right to health that cannot be limited under Art. 4 ICESCR.16 3.1. The Promotion of General Welfare in a Democratic Society Chapter V showed that the ‘promotion of general welfare’ is the only purpose for which ESC rights can be limited, including when these limitations occur due to resource scarcity. While there is an inherent contradiction in stating that retrogressive measures prompted by scarce resources are only justified when they ‘promote general welfare’, it can be expected that the notion of ‘general welfare’ is still used as a guiding maxim. It was found appropriate to require that states organise retrogressive measures in a way that they promote general welfare in the prevailing circumstances—or at least limit its erosion—as effectively as possible.17 3.1.1. The Question of Alternatives The understanding of ‘general welfare’ as the economic and social wellbeing of a society, and various comments of the CESCR, give some indi­ cation of what the notion of ‘general welfare’ implies for the context of limiting the right to health due to the diversion of resources towards the fighting of a NIAC. The CESCR’s statements require for example that, in order to comply with the notion of ‘general welfare’, limitations/ ‘retrogressive measures’ can only be introduced after the ‘most careful consideration of all alternatives’, including seeking to identify ‘low-cost options’ and mobilisation of international assistance.18 Thus, where shifting resources towards military spending is foreseen, the question arises of what alternatives more conducive to the preservation of ‘general welfare’ might be possible. Do states have an obligation to negotiate with non-state armed groups instead of engaging them with armed force? Negotiations may limit the diversion of resources, could be 15 E.g. infra, section 3.1.1. 16 As further analysed infra, parts 4 and 5. 17 Chapter V, section 2.3.2. 18 Chapter V, section 2.3.1.



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described as a ‘low-cost option’ and would therefore likely be more conducive to the protection of ‘general welfare’. The question appears particularly legitimate when the fact is recalled that many NIACs have their roots at least partly in lasting non-implementation of ESC or civil and political rights, or the discriminatory implementation of these rights.19 It seems unjustified to allow states to use their failure in implementing ESC rights in the first place as a reason for limiting them further in order to free resources to engage non-state armed groups militarily. Moreover, negotiations could prevent the possible destruction of existing elements of a health system and infrastructure that may result from hostilities as discussed in chapter VI. Such destruction undoubtedly undermines the promotion of ‘general welfare’. In its 1998 Concluding Observations on Sri Lanka the CESCR observed that it was ‘fully aware of the human and material costs of the armed conflict in Sri Lanka and the deleterious effects this has on the ESC rights of every person living in the country’. It went on expressing its hope for a ‘just, speedy and peaceful solution of the war’ urging the government ‘as a matter of the highest priority, to negotiate the acceptance by all concerned of its proposed peace plan involving devolution of authority to regional governments’.20 In other words, it urged the Sri-Lankan government to speed up its negotiations with The Liberation Tigers of Tamil Eelam (LTTE) to end the armed conflict, and to thereby remove one of the main obstacles to the implementation of ESC rights in the country. It noted explicitly that the strain on resources available for the implementation of ESC rights was due to the existence of armed hostilities in the state party. This, and similar recommendations of the Committee with regard to other countries experiencing NIACs on their territories,21 suggest that the 19 See e.g. the CESCR’s Concluding Observations—Guatemala, E/C.12/1/Add.3 (1996), para. 10 where this fact was clearly noted: ‘The Committee recognizes that Guatemala continues to suffer from the consequences of armed conflict which has lasted more than 30 years. Overcoming the resistance to reform from vested interests which have, in the past, caused the failure of agrarian reform, and which continue to be relevant today, is of major importance. Thus, as recognized by the State party, the root causes of the armed conflict remain to be tackled, embedded as they are in socio-economic disparities and uneven land distribution in an almost feudal-like system characterized by discrimination against the indigenous and rural populations.’ In 2003 the Committee expressed its concern about the ‘insufficient progress made by the State party towards the effective implementation of the peace agreements of 1996’ (CESCR, Concluding Observations—Guatemala, E/C.12/1/ Add.93 (2003), para. 10); see also chapter V, section 2.3.1. 20 CESCR, Concluding Observations—Sri Lanka, E/C.12/1/Add.24 (1998), para. 21. 21 E.g., CESCR, Concluding Observations—Guatemala, E/C.12/1/Add.3 (1996), para. 4; Sudan, E/C.12/1/Add.48 (2000), para. 9; Nepal, E/C.12/NPL/CO/2 (2008), paras. 4 and 33; and Colombia, E/C.12/1/Add.74 (2001), para. 4.

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Committee at least expects governments to make serious attempts to solve conflicts through negotiations. Arguably, this is because such a strategy would pose fewer threats to the civilian populations’ enjoyment of ESC rights, including those due to the reduction of available resources if military force were used. Negotiation could therefore be described as a ‘low-cost option’ that better promotes ‘general welfare’ in an unstable situation. However, this cannot mean that the ICESCR directly prohibits the use of force. In its above-mentioned concluding observations the Committee accepts the reality of armed conflicts, including the fact that in some situations the alternative of negotiations may not be possible. There may be situations in which engaging non-state armed groups with armed force is justified by the claim that it will end violations of ESC and civil and political rights by such groups. This may for example be the case when a state has completely lost control over parts of its territory to a non-state armed group that is unwilling to participate in negotiations, or is preventing humanitarian organisations from assisting affected civilians. It can be argued that in such a case, the use of force including the related diversion of resources towards military spending contributes to the ‘promotion of general welfare’ as required under Art. 4 ICESCR. It might be a precondition for enabling the respective government to implement the ESC rights of people living in areas controlled by rebels. Under the ICESCR states are obliged to commit themselves to the protection of those people’s ESC rights to the same extent as they must protect the ESC rights of people in areas under governmental control. While the CESCR concluding observations have never made this argument directly, it seems to be in line with the jurisprudence of the ECtHR. In Ilaşcu v Moldova and Russia the ECtHR found that Moldova, which had lost control over parts of its territory (Transdniestria), was under the obligation to re-establish control over this region so that it could effectively implement the ECHR.22 The Court held that the obligation to re-establish control over Transdniestria required Moldova, firstly, to refrain from supporting the separatist regime of the “MRT” [“Moldavian Republic of Transdniestria”], and secondly to act by taking all

22 Moldova had lost control over the region of Transdniestria after it lost a short armed conflict against Transdniestrian separatists who had been backed by the Russian military. The authorities of the ‘Moldavian Republic of Transdniestria’ proclaimed their independence in 1991, but remain largely unrecognised by the international community.



mitigating the public health impact of armed conflicts199 the political, judicial and other measures at its disposal to re-establish its control over that territory.23

It is clear that the ECtHR did not exclude military action by Moldova as an appropriate measure, though it recognised that this was an unrealistic option in the current situation. It found that when confronted with a regime sustained militarily, politically and economically by a power such as the Russian Federation …, there was little Moldova could do to re-establish its authority over Transdniestrian territory. That was evidenced by the outcome of the military conflict, which showed that the Moldovan authorities did not have the means to gain the upper hand in Transdniestrian territory against the rebel forces supported by 14th [Russian] Army personnel.24

The Court went on to commend the judicial, political and diplomatic measures Moldova had taken to regain control over Transdniestria, characterising them as appropriate to fulfil obligations flowing from the ECHR in this specific situation. Similarly, the HRCttee recommended in 2009 that Moldova ‘renew its efforts to resolve the impediments to the implementation of the Covenant in Transdniestria’.25 While potential measures were not specified, judicial, political, diplomatic and military means can all be included. There seems to be little reason why, in certain situations, the ECtHR’s argumentation regarding the ECHR should not be transferred to the context of states’ obligations under the ICESCR.26 3.1.2. Protecting General Welfare and Ensuring Non-Discrimination The requirement of the ‘promotion of general welfare’ as a guide to limitations of the right to health due to the diversion of resources also raises the question of the consequences that this diversion has for different groups in a society. This is strengthened by the non-discrimination/equality principle. For example, there is some evidence that increasing military 23 ECtHR, Ilaşcu and Others v Moldova and Russia, Appl. No. 48787/99, Judgment (Grand Chamber), 8 July 2004, para. 340. 24 Ibid., para. 341. 25 HRCttee, Concluding Observations—Moldova, CCPR/MDA/CO/2 (2009), para. 5; similarly see Georgia, CCPR/C/GEO/CO/3 (2007), para. 6. 26 So far, the CESCR’s concluding observations did not touch upon these questions. They merely note that the Trandniestrian region is out of control of the Moldovan government and focus on Moldova’s obligations on the rest of its territory (Concluding Observations—Moldova, E/C.12/1/Add.91 (2003), para. 10, and E/C.12/MDA/CO/2 (2011)). See however, Colombia, E/C.12/COL/CO/5 (2010), para. 7, where the CESCR recommended taking ‘immediate and effective measures’ to address the on-going armed violence in Colombia.

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spending is associated with increasing income inequality;27 and rising unemployment rates linked to increased military spending seem to affect minorities and women more than others.28 However, economists and political scientists seem not completely clear about the impact increased military spending can have on different groups in a society.29 For example, another study on military power and food security in less-developed countries suggests that increased spending on weapons and other military supplies reduces food security, including children’s access to food; whereas increased spending on military personnel increases food security levels, including for children.30 While these economic questions and correlations are beyond the expertise of the present author, the discussion shows that depending on the situation at hand in a particular country—including the ethnic composition and existing income distribution of its society—likely effects of increasing military spending on different groups have to be identified and discussed carefully with all affected groups and individuals. Only after a consultation process that is as inclusive as possible, should decisions on limitations be made. This is in line with the requirement that limitations of ESC rights must have the purpose of promoting general welfare, i.e. not the welfare of military personnel and/or producers of military equipment only. This is moreover supported by the requirement of Art. 4 ICESCR that limitations are permitted only for the purpose of ‘promoting the general welfare in a democratic society’, and the principle of non-discrimination. To recall, the findings from the analysis of the CESCR’s ‘jurisprudence’ on the meaning of ‘a democratic society’ suggest that this phrase implies that decisions to limit ESC rights should be based on a transparent and participative decision-making process at the national level, that they should not be ordered unilaterally, and that they should be subject to popular control.31 While adhering to the requirement of ‘participative processes’ in decisions on limitations might be difficult in situations of NIACs, this requirement can partly be integrated into the obligation to develop and implement a public health strategy and plan of action to systematically build an accessible health system under the right to health.32 Arguably, a public 27 Abell (1994). 28 Abell (1991). 29 As stated by Blattman and Miguel (2010), pp. 42 and 44. 30 Scanlan and Jenkins (2001). 31 See chapter V, sections 2.2.2 and 2.3.3; and Ssenyonjo (2009), p. 63. 32 CESCR, General Comment 14 (2000), para. 43(f) indicates that this obligation is part of the minimum core of the right to health.



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health strategy should include measures to be taken in times of emergency to make an existing health system responsive to the challenges of emergencies, including NIACs. These measures could ideally be developed with the participation of different groups in peacetime. They could explicitly address the question of how potentially disproportionate detrimental effects on particular groups of individuals can be avoided that result from a likely diversion of resources towards military spending.33 The further requirement of Art. 4 ICESCR that limitations should be ‘determined by law’ could also be included in the obligation to develop a plan in peacetime for making a health system responsive to the challenges of an emergency. Thus preventive measures can help reduce the difficulty of adopting a law on limitations imposed at short notice in the often chaotic situation of an armed conflict. This would moreover ensure that limitations are not imposed unilaterally by the executive and that the law determining limitations is generally accessible and sufficiently clear.34 3.2. Proportionality The principle of proportionality is another important requirement that states must comply with when they limit the right to health and other ESC rights, including when such limitations occur due to the diversion of resources towards the fighting of a NIAC.35 One of the elements of the principle of proportionality is that the ‘least restrictive alternative must be adopted where several types of limitations are available’;36 and limitations must be ‘of limited duration and subject to review’.37 In practice that could mean that, as soon as a NIAC loses its intensity, restrictions to ESC rights that result from an inevitable diversion of resources towards military action should be reviewed and adapted or removed completely. This is in line with various concluding observations of the CESCR on reports from countries experiencing armed conflicts. The Committee has held that as soon as armed activities are over and control is re-established 33 Due to space-limitations the question of whether there is an obligation on states under the right to health to explicitly take preventive action so that a health system can cope with emergencies cannot be discussed here in greater detail. Such an obligation is likely to be reinforced by IHL that requires states to take measures for the implementation of IHL even in times of peace, including the obligations relating to the protection of the wounded and sick (see Art. 47 GC I, Art. 48 GC II, Art. 127 GC III, Art. 144 GC IV, Art. 83 AP I and Art. 19 AP II). 34 See chapter V, sections 2.2.3 and 2.3.3. 35 As mentioned in chapter V, sections 2.2.5 and 2.3.4. 36 CESCR, General Comment 14 (2000), para. 42. 37 Ibid.; see also chapter V, section 2.2.5.

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over a territory, states are required to renew their efforts to ensure the implementation of ESC rights. This includes allocating maximum available resources to the implementation of these rights. It implies a gradual re-diversion of resources from military spending to health care and the implementation of other ESC rights. For example, in its 2008 Concluding Observations on Angola the CESCR expressed its concern that ‘in spite of the State party’s significant economic growth and huge natural wealth, the resources allocated to social services and public infrastructure are far from adequate’. It called on the Angolan government to ‘take all appropriate measures, including by allocating product of oil and diamond revenues [sic], to accelerate the rehabilitation and reconstruction of public infrastructure and social services in both the urban and rural areas’.38 It made these recommendations against the background that Angola had enjoyed a period of peace since 2002 only, after 13 years of independence war and 27 years of civil war during which the implementation of ESC rights had been severely compromised. The Committee made similar recommendations regarding the Philippines, Russia (Chechnya), Tajikistan, Guatemala, Algeria and the Democratic Republic of the Congo.39 3.3. ‘Compatible with the Nature of these Rights’ The last requirement under Art. 4 ICESCR is that any limitations of ESC rights have to be ‘compatible with the nature of these rights’. In chapter V it was argued that this should be understood as prohibiting any limitations that conflict with states’ nationally-defined minimum core obligations that ideally correspond to the internationally-defined minimum cores. The analysis in parts 4 and 5 of this chapter aims to shed further light on the likely content of these minimum core obligations that flow from the right to health. For now it is sufficient to note that the requirement that limitations shall be ‘compatible with the nature of these rights’ categorically excludes any complete diversion of resources from the implementation of the right to health towards military spending. Such diversion would result in not only the limitation of this right, but its complete extinction. At the very least, resources must be made available for the implementation of nationally-defined minimum core obligations at 38 CESCR, Concluding Observations—Angola, E/C.12/AGO/CO/3 (2008), para. 26. 39 See CESCR, Concluding Observations—Philippines, E/C.12/1995/7 (1995), para. 21; Russian Federation, E/C.12/1/Add.94 (2003), para. 38; Tajikistan, E/C.12/TJK/CO/1 (2006), paras. 10 and 35; Guatemala, E/C.12/1/Add.3 (1996), para. 25; Algeria, E/C.12/DZA/CO/4 (2010), paras. 18–19; Democratic Republic of the Congo, E/C.12/COD/CO/4 (2009), para. 16.



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all times as a matter of priority40 and for the overlapping IHL obligations on the protection and care for the wounded and sick, if need be with assistance from international actors.41 As noted in chapter IV there is a strong presumption that states regularly command more than sufficient resources to implement a nationally-defined minimum core right to health that ideally coincides with the international minimum core defined by the CESCR.42 IHL rules overlap with these minimum core obligations and will therefore be helpful in determining the scope of states’ minimum core obligations in times of NIACs. As will be shown, these obligations will not only limit the diversion of resources from health care to military spending, but also indicate which health services, medical goods and programmes resources are most likely to be directed toward during NIACs. 4. The Protection of the Wounded and Sick and the Possible Scope of Health Services to be Provided in NIACs As mentioned earlier, NIACs have various direct and indirect, short- and long-term adverse consequences for people’s health.43 Direct health consequences include wounds or injuries caused by different ‘conventional’ weapons such as small arms/firearms, explosives and incendiaries;44 but also by weapons that do not commonly fall within the category of ‘conventional’ weapons, such as machetes or knifes. Injuries caused by these types of weapons can result in lifelong physical disabilities. Victims of torture or sexual assault experience physical and mental health problems. Those who have witnessed the death of their loved ones, neighbours, friends or

40 See also the discussion in chapter IV, section 4.4; and chapter V, sections 2.2.4 and 2.3.2. 41 The CESCR has frequently pointed out that under Art. 2(1) ICESCR states are required to seek international assistance if they are unable to implement their obligations under the ICESCR, in particular their minimum core obligations. See e.g. CESCR, General Comment 19 (2008), para. 41; General Comment 15 (2002), para. 18; General Comment 12 (1999), paras. 17 and 29; and, among many, CESCR, Concluding Observations—Sudan, E/C.12/1/Add.48 (2000), para. 37; and Bosnia and Herzegovina, E/C.12/BIH/CO/1 (2006), para. 48. See also the discussion chapter VIII, section 2.1. 42 See chapter IV, sections 4.3.2 and 4.5. 43 Sphere Project: Humanitarian Charter and Minimum Standards in Humanitarian Response (2011) [hereinafter: Sphere Charter (2011)], p. 292, makes this distinction between direct and indirect effects on public health and well-being of people affected by disasters; see also Checchi et al (2007), pp. 1–2, following the same categorisation. 44 For a discussion of different ‘conventional’ weapons and the types of injuries they cause see Cukier (2008), pp. 87–101. .

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even entire communities, and those who have been forced to serve as combatants often become psychologically impaired. Indirect health consequences of armed conflicts such as spreading infectious diseases, deteriorating health status of mothers and children and complications of chronic diseases are caused by the conflict-related disruption of immunisation campaigns, prevention and treatment programmes, the restricted freedom of movement of patients and health personnel, the displacement of large populations, limited access to water and sanitation and by malnutrition. This part explores, first, who is covered by the protection offered by the right to health and by relevant IHL rules that aim to mitigate the direct and indirect health consequences of NIACs (4.1). Second, the question about the possible scope of health services, facilities and goods states are obliged to provide under these rules are discussed, addressing direct (4.2) and indirect (4.3) health consequences of armed conflicts. 4.1. Personal Scope of Application 4.1.1. The Protection of the ‘Wounded and Sick’ in IHL As noted above, IHL applicable to IACs focused historically on the protection of wounded and sick soldiers. This protection was fully expanded to civilians only with the adoption of AP I in 1977. Due to the absence of a clear combatant status in the law of NIACs, protection offered to ‘wounded and sick’ in common Art. 3 GC I-IV and AP II apply to all persons ‘whether or not they have taken part in the armed conflict’.45 Thus, treaty rules on the wounded and sick were more inclusive in NIACs than in IACs already in 1949 when common Art. 3 GC I-IV was adopted. As is clear from Art. 8(a) AP I, the definition of ‘wounded and sick’ in IHL covers everyone who a) requires (immediate) medical care and b) does not engage in any act of hostility:46 “Wounded” and “sick” mean persons, whether military or civilian, who, because of trauma, disease or other physical or mental disorder or disability, are in need of medical assistance or care and who refrain from any act of hostility. These terms also cover maternity cases, new-born babies and other persons who may be in need of immediate medical assistance or care, such as the infirm or expectant mothers, and who refrain from any act of hostility. 45 Art. 7(1) AP II; common Art. 3(1) GC I-IV includes protection of those placed hors de combat by sickness or wounds; Art. 3(2) GC I-IV provides for the collection and care for the wounded and sick; see also rule 109 ICRC Study, Vol I, pp. 396–399. 46 ICRC Commentary (AP I/II), para. 4638; and Kleffner (2008), pp. 328–329.



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Though originally applicable to IACs only, this definition is usually resorted to for situations of NIACs as well.47 It can also be assumed that it underlies rules 109–111 of the ICRC Study, which do not give a customary definition of the ‘wounded and sick’.48 The definition is obviously not restricted to those conflict-affected individuals who are wounded and sick for reasons related to the armed conflict, but covers all persons in need of immediate medical treatment. Art. 8(a) AP I even allows the inclusion of individuals who do not require immediate medical care in the sense of emergency medical treatment, but also those who require other curative or rehabilitative treatment, for example because of chronic sickness or disability. The adjective ‘immediate’ does not qualify ‘medical assistance’ in the first sentence, and the definition refers to ‘disorder or disability’. Art. 7(2) AP II further highlights the need for equal treatment of all warwounded, regardless of their affiliation to one of the parties to the conflict. No distinction in the treatment of the wounded and sick shall be made, except for medical grounds.49 Thus, all shall enjoy the same protection and care, no matter to which party of the conflict they belong, in whose hands they find themselves or whether they are civilian or military.50 4.1.2. Persons Covered by the Right to Health in NIACs The right to the highest attainable standard of physical and mental health is held by ‘everyone’51 under the jurisdiction of states that have ratified the ICESCR, including in times of armed conflict. Art. 12(2)(d) ICESCR specifies that the right to health poses an obligation on the state to create the ‘conditions that assure to all medical service and medical attention in the event of sickness’52—the element of the right to health that is particularly relevant here. As noted in chapter IV, the health system goods, services and programmes that states should ensure under their minimum core and

47 ICRC Commentary (AP I/II), para. 4637; Bothe, Partsch and Solf (1982), p. 656. 48 Rules 109–111 ICRC Study, Vol I, pp. 396–405. It is not clear why the ICRC Study does not comment on the customary status of this definition. The present author assumes that this is because the ‘practice’ cited in Vol II of the Study (mainly military manuals) does usually refer to the ‘wounded and sick’ without restating the definition of Art. 8(a) AP I (see ICRC Study, Vol II, chapter 34, pp. 2590–2654). 49 Art. 7(2) AP II; and rule 110 ICRC Study, Vol I, pp. 400–403. 50 Rule 109 ICRC Study, Vol I, p. 399; Kleffner (2008), p. 331; and Green (2008), p. 359. 51 Art. 12(1) ICESCR and Art. 25(1) UDHR. In its ‘jurisprudence’ the CESCR made clear that this includes an obligation to give nationals and non-nationals access to the health system on an equal footing, e.g. CESCR, Concluding Observations—Sweden, E/C.12/SWE/ CO/5 (2008), para. 10; Cyprus, E/C.12/CYP/CO/5 (2009), para. 18; UK, E/C.12/GBR/CO/5 (2009), para. 27; and France, E/C.12/CO/FRA/CO/3 (2008), paras. 26 and 46. 52 Emphasis added.

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non-core obligations must be available, accessible, acceptable as well as of good quality.53 In particular the requirement of ‘accessibility’ includes not only physical and economic access to health care facilities, goods, services and programmes, but also equal/non-discriminatory access—a requirement strengthened by Arts. 2(2) and 3 ICESCR.54 The rights to access various elements of the health system made available through the implementation of the right to health is clearly not limited to those in need of emergency medical treatment, but includes those in need of preventive, curative and rehabilitative care. Yet, it must be recalled that the scope of health care provided under the right to health in a particular situation can rarely meet the health needs of everyone because this scope depends on the availability of resources and the related definition of the national minimum core right to health.55 The question of the likely material scope of the obligations flowing from Art. 12 ICESCR, in particular the scope of the emerging international minimum core right to health in situations of NIACs, will be discussed next, together with relevant states’ obligations under IHL. 4.2. Obligations to Mitigate Direct Health Consequences of Armed Conflicts IHL obligations and those flowing from the right to health aiming to alleviate direct health consequences of armed conflicts can be divided in obligations to search for and collect those in need of medical care (4.2.1); and obligations describing the scope of medical attention and care that is to be provided to those suffering direct health consequences of the armed conflict (4.2.2). 4.2.1. Obligations to Search and Collect the Wounded and Sick Art. 7(1) AP II contains the general obligations toward the wounded and sick in IHL: it requires that the wounded and sick shall be ‘respected and protected’.56 This means that they are not made subject of any attack, that they are not mistreated and that their belongings are not taken away.57 53 See chapter IV, part 5. 54 See also CESCR, General Comment 14 (2000), para. 18. 55 See the discussion in chapter IV, section 4.3.2. 56 This obligation forms part of customary IHL as is clear from rules 109–111 of the ICRC Study, Vol I, pp. 396–405. These rules—and rules 25–26 and 28–30 relating to the protection of medical personnel, medical units and medical transports—are backed by extensive state practice collected in Vol II of the Study, and their customary status is therefore undisputed in most aspects; see also Breau (2007), pp. 175–179. 57 ICRC Commentary (AP I/II), para. 4635; rule 111 ICRC Study, Vol I, pp. 403–405; Kleffner (2008), p. 330; and Green (2008), pp. 358–359.



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It also implies an obligation on the parties to the conflict to take more proactive measures to safeguard the protection of the wounded and sick against harmful acts by third parties, and their removal from the scene of combat as soon as possible.58 Both obligations are confirmed in Art. 8 AP II, which specifies that the wounded and sick shall be protected against pillage;59 as well as searched for and collected. The obligation to ensure physical and economic access to minimum health care facilities and services for everyone under the right to health includes an obligation not to unduly interfere with existing access, and thus reinforces the IHL obligations. As highlighted by the CESCR, this obligation entails that states refrain from ‘limiting the access to health services as a punitive measure, for instance during armed conflicts’.60 Despite the fact that the IHL obligation to respect and protect the wounded and sick rests mainly with the parties to the conflict (states and non-state armed groups), the civilian population is included in the obligation to, at the very least, respect the wounded and sick: civilians should not commit any act of violence against them or take any advantage of their condition.61 This is clear from Art. 8(2)(c)(i) ICC Statute, criminalising the killing of persons hors de combat in NIACs. While not imposing direct obligations on individuals to safeguard the health of others, the right to health obliges states to ensure that third actors do not interfere with aspects of people’s access to health facilities, goods, services and programmes, and in particular with the enjoyment of elements that belong to the minimum core.62 This has been explicitly recognised in the cases heard by the IACtHR and the AComHPR concerning countries that have been involved in armed conflicts.63 58 ICRC Commentary (AP I/II), ibid.; rule 109, ICRC Study, Vol I, pp. 396–399; Kleffner ibid.; and Green, ibid. 59 See also rules 52 and 111 ICRC Study, Vol I, pp. 182 and 403. 60 CESCR, General Comment 14 (2000), para. 34 where the CESCR directly observes that such interference would also amount to a violation of IHL. This is also reiterated in its Concluding Observations—Sri Lanka, E/C.12/LKA/CO/2–4 (2010), para. 28. See also the examples from national case law given in International Commission of Jurists (2008), p. 43. States’ direct interference or threats to interfere with the health of individuals or health care given to them can also amount to inhuman or degrading treatment (see the jurisprudence of the ECtHR infra, n.110). 61 Commentary on rule 111 ICRC Study, Vol I, p. 404; Kleffner (2008), p. 330; and ICRC Commentary (AP I/II) on Art. 7 AP II, para. 4635. 62 CESCR, General Comment 14 (2000), para. 35. 63 IACtHR, Mapiripán Massacre v Colombia, Judgment, Ser.C. No 134, 15 September 2005, paras. 178–179; and Ituango Massacres v Colombia, Judgment, Ser.C. No 148, 1 July 2006, para. 234. Similarly, the AComHPR found Nigeria in violation of its duty to ‘protect’

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As specified in Art. 8 AP II, states’ IHL obligations to search for and collect the wounded and sick implies that ‘whenever circumstances permit, and in particular after an engagement, all possible measures shall be taken, without delay, to search for and collect the wounded, sick and shipwrecked, … to ensure their adequate care’.64 The phrase ‘whenever circumstances permit’ implies that the duty to search for and collect the wounded and sick extends beyond the duty to do so on the battlefield, in particular because in contemporary armed conflicts it is ‘difficult to determine where exactly the battlefield is in place and time’.65 Moreover, it makes clear that there is a duty to not only search for wounded and sick after each engagement, but also in other situations—for instance when civilians have been injured by mines or unexploded ordnance outside an area of active combat. Similarly to IHL, obligations flowing from the right to health require states to undertake more pro-active measures to safeguard the health of those suffering direct health consequences of hostilities. Once more, the obligation to ensure equal access to existing health facilities, goods and services implies an obligation to take measures to ensure access for disadvantaged and marginalised groups—an obligation the CESCR considers to be part of the international minimum core of the right to health.66 While there seems not to be a clear definition in IHRL of who constitutes a ‘marginalised or disadvantaged’ group, for the specific context of armed conflict it seems reasonable to assume that those who have been wounded in on-going hostilities are a ‘disadvantaged group’ by their condition, and that priority attention is paid to them. Moreover, states are obliged under the right to health to directly ensure access to health facilities when individuals are unable, for reasons beyond their control, to realise that element of the right to health themselves.67 There is no reason why the the right to health of the Ogoni people from activities of oil companies, see AComHPR, Com­munication 155/96, The Social and Economic Rights Action Center and the Center for Economic and Social Rights v Nigeria (2001), on the duty to ‘protect’ see paras. 46, 61 and 65; on violations of this duty, see paras. 55, 57–58 and 66. 64 Art. 8 AP II corresponds to Art. 15(1) GC I and Art. 18(1) GC II, and introduced the explicit duty to search for the wounded and sick into IHL of NIACs for the first time; see Bothe, Partsch and Solf (1982), p. 659; rule 109 ICRC Study, Vol I, pp. 396–399; ICRC Commentary (AP I/II), para. 4635; Kleffner (2008), p. 330; and Green (2008), p. 358–359. 65 ICRC Commentary (AP I/II), para. 4653; with this, Art. 8 AP II goes further than Art. 18 GC II, which only requires taking such action ‘after each engagement’; see also Bothe, Partsch and Solf (1982), p. 659. 66 CESCR, General Comment 14 (2000), para. 43(a); Report of the UN Special Rapporteur on the Right to Health, A/HRC/7/11, 31 January 2008, para. 42. 67 CESCR, General Comment 14 (2000), para. 37; also noted in chapter IV, section 4.4; and chapter VI, section 4.2.3.



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measures that are to be taken to ensure these individuals’ access to medical treatment required by their condition should differ from the obligations under IHL: obligations to search for and collect the wounded and sick with all the implications described above. As is clear from the ECtHR case of Albekov v Russia, obligations under the right to life of the ECHR can equally reinforce and specify these obligations. In this case, the ECtHR found that Russia had violated its ‘positive’ obligations to take appropriate steps to safeguard the lives68 of victims who died from the explosion of landmines in Chechnya.69 The finding was based on the Russian authorities’ failure to endeavour to locate and deactivate the mines, to mark and seal off the mined area so as to prevent anybody from freely entering it, and to provide the villagers with comprehensive warnings concerning the mines laid in the vicinity of their village ….70

The court did not mention, as a further violation of Russia’s ‘positive’ obligations to safeguard lives, the repeated refusal71 of the Russian military unit stationed close to the applicants’ village to search for one villager who had been wounded by a landmine, but such a finding is conceivable. This would be the case, in particular, when aforementioned IHL obligations to search for and collect the wounded and sick as well as obligations under the right to health were taken into consideration.72 In this specific case it was even known to the military that a wounded villager was in need of medical assistance, since residents of the village had explicitly approached the military unit with the request to search and collect the wounded villager. The villagers were afraid of triggering more landmine explosions when searching for him on their own without the help of sappers. Since the IHL duty to search and collect the wounded and sick usually rests with the governmental armed forces operating military and civilian medical services—including national Red Cross and Red Crescent Societies—the

68 ‘Positive’ obligations to safeguard the right to life are a well-established part of the ECtHR’s jurisprudence, see e.g.: ECtHR, L.C.B. v UK, Appl. No. 23413/94, Judgment, 9 June 1998, para. 36; Osman v UK, Appl. No. 23452/94, Judgment (Grand Chamber), 28 October 1998, para. 115; discussed in more detail in Harris et al (2009), pp. 42–46. 69 ECtHR, Albekov and Others v Russia, Appl. No. 68216/01, Judgment, 6 April 2009, para. 90. 70 Ibid., para. 90. 71 Ibid., paras. 18, 19 and 21. 72 The CESCR also points into this direction in its Concluding Observations—Colombia, E/C.12/COL/CO/5 (2010), para. 16; Angola, E/C.12/AGO/CO/3 (2008), para. 33; and Bosnia and Herzegovina, E/C.12/BIH/CO/1 (2006), para. 48.

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residents’ appeal to the military unit stationed in the region should have been responded to. Inspired by the more detailed provisions applicable to IACs in GC I, it can be argued that the duty to search for and collect the wounded and sick also includes a duty to create the conditions in which searches and evacuations can be carried out successfully. For example, Art. 15(2) GC I suggests that parties to the conflict arrange ‘an armistice or a suspension of fire’ or make ‘local arrangements’ to ‘permit the removal, exchange and transport of the wounded’. These provisions can be seen as a reasonable specification of the obligations to search for and collect the wounded and sick. Reinforced by states’ obligations under the right to health to undertake actions to restore the health of the population,73 they should be applied to NIACs as well.74 This would also allow national and international humanitarian organisations to take care of the wounded and sick in territories under the control of armed groups who may be unable to provide the necessary medical care themselves.75 The analysis now turns to the scope of the medical attention and care states have to provide to those wounded or psychologically traumatised by on-going hostilities under IHL and the right to health. 4.2.2. The Scope of Medical Attention and Care to be Provided to Those Suffering from Direct Health Consequences of Armed Conflicts Art. 7(2) AP II requires that the wounded and sick are ‘treated humanely’ in all circumstances and ‘receive, to the fullest extent practicable and with the least possible delay, the medical care and attention required by their condition’.76 Art. 8 AP II confirms this, emphasising the obligation ‘to ensure their [wounded and sick] adequate care’. The phrase ‘in all circumstances’ leaves no doubt that military necessity cannot be invoked to justify non-compliance with this obligation.77 However, as pointed out in the ICRC Commentary on AP II, the provision ‘to the fullest extent practicable and with the least possible delay’ is informed by realism, since sometimes it might be impossible to provide the care that is immediately necessary due to the prevailing circumstances. Nonetheless, the provision clearly requires that the parties to the conflict 73 CESCR, General Comment 14 (2000), paras. 16 and 37. 74 As suggested by rule 109 ICRC Study, Vol I, pp. 398–399. 75 See also the discussion in chapter VIII, section 3.2. 76 See also rule 110 ICRC Study, Vol I, pp. 400–403. 77 Kleffner (2008), p. 331.



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act in good faith and that they make their best efforts to provide the required medical care to the wounded and sick as quickly as possible.78 Explaining the obligation to provide wounded and sick persons with adequate care, the ICRC Commentary on Art. 8 AP II further holds that “adequate care” is first aid given on the spot, which may be of the utmost importance to avoid wounded, sick or shipwrecked succumbing during evacuation, which must take place as quickly as possible. Obviously such care includes ensuring the transport of the wounded to a place where they can be adequately cared for.79

Beyond the provision of first aid and emergency medical treatment, the details and types of medical care that have to be given to the wounded and sick is rarely specified in commentaries on relevant provisions of IHL.80 One reason for this is presumably the focus of IHL on protecting mainly the traditional function of medical services attached to governmental armed forces, primarily concerned with caring for those who have been wounded in battles, and concentrated on first aid, surgeries and amputations. However, the inclusive definition of the ‘wounded and sick’ given in 4.1.1 above shows that ‘adequate care’ today goes beyond first aid and emergency medical treatment for those suffering from direct health consequences of armed conflicts: it may, for example, include short- and long-term medical, mental and rehabilitative care for those with conflictrelated physical and psychological health problems, including for victims of sexual violence.81 This is supported by the simultaneously applicable right to health. Non-state armed groups’ obligations in this area are most likely limited to obligations allowing national and international humanitarian organisations to implement these and other obligations discussed below,82 in particular when the non-state armed group in question is relatively weak.83 78 ICRC Commentary (AP I/II), para. 4645; interpretation of rule 110 ICRC Study, Vol I, p. 402; and Kleffner (2008), pp. 330–31, referring to the analogous provision Art. 10(2) AP I. 79 ICRC Commentary (AP I/II), para. 4655. 80 Most sources do not comment on what constitutes ‘medical care and attention required’ (Art. 7(2) AP II) or ‘adequate care’ (Art. 8 AP II), e.g. Kleffner (2008), p. 330. The ICRC Study’s comment on rule 110 does not clarify the extent of this obligation either. 81 See also infra section 4.3.1, further analysing the question about the extent to which IHL obligations also include the provision of health care aiming to mitigate the indirect public health impact of armed conflicts. 82 E.g. the obligations discussed in section 4.3 and part 5 below. 83 See also the discussion of non-state armed groups’ obligations relating to the work of national and international humanitarian organisations in chapter VIII.

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Although it can be argued that long-term rehabilitative care lies outside the regulatory realm of IHL since it ceases to apply when active hostilities have ended, recent treaties, such as the Ottawa Convention, Protocol V to the 1980 CCW and the CCM, suggest otherwise. In his foreword to the latter Convention, the ICRC’s Jakob Kellenberger observes that the CCM ‘established a broader norm that those who engage in armed conflict can no longer walk away from the long-term consequences of the weapons they use, leaving local communities to carry the burden’.84 Art. 5(1) CCM obliges each state party to ‘adequately provide age- and gender-sensitive assistance, including medical care, rehabilitation and psychological support’ to cluster munition victims as well as to ‘provide for their social and economic inclusion’. From Art. 5(2)(e) CCM it is furthermore clear that this obligation is not limited to victims of cluster munitions, but includes all ‘who have suffered injuries or disabilities from other causes’. This is also due to the recognition of the parallel application of ESC rights to armed conflicts that is made explicit in the CCM.85 To explore this further, the discussion will now move to analyse the extent to which states’ obligations flowing from the right to health address the direct impact of armed conflicts on civilian health. This is linked to the difficult question86 about the more exact scope of the health facilities, goods and services states are most likely obliged to grant equal access to under an emerging internationally-defined minimum core right to health. To recall, the implementation of the right to health in NIACs will in most cases inevitably be limited to the implementation of a nationallydefined minimum core right to health that mirrors the internationallydefined minimum core as closely as possible, in accordance with Art. 2(1) and Art. 4 ICESCR.87 The first question to be asked for the conflict context is whether emergency medical treatment is part of the international minimum core content of the right to health, strengthening the mentioned IHL obligations. The CESCR’s General Comments 3 and 14 seem to rather regard ‘essential primary health care’88 as the minimum core of the right to health. Trauma 84 CCM, reprinted by the ICRC (September 2008), with a foreword by Kellenberger, p. 7. 85 As mentioned in chapter II, section 2.2; it should be recalled, however, that these obligations are subject to ‘progressive realisation’ in accordance with available resources; see also infra, text accompanying ns. 118 and 119. 86 As outlined in chapter IV, part 4. 87 See conclusions from chapters IV and V. 88 CESCR, General Comment 3 (1990), para. 10; General Comment 14 (2000), para. 43; see also, CESCR, Concluding Observations—Bolivia, E/C.12/BOL/CO/2 (2008), para. 34.



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care and surgery that require specialised training, sophisticated technology and resources, are not usually part of ‘primary health care’.89 General Comment 14 refers to the Alma-Ata Declaration90 as a ‘compelling guidance on the core obligations arising from Art. 12 [ICESCR]’,91 i.e. on what constitutes ‘essential primary health care’: at least: education concerning prevailing health problems and the methods of preventing and controlling them; promotion of food supply and proper nutrition; an adequate supply of safe water and basic sanitation; maternal and child health care, including family planning; immunization against the major infectious diseases; prevention and control of locally endemic diseases; appropriate treatment of common diseases and injuries; and provision of essential drugs.92

The Humanitarian Charter and Minimum Standards in Humanitarian Response of the Sphere Project that claims to be built on the minimum core right to health,93 also suggests that health interventions by humanitarian organisations should emphasise community-based public health and primary care. This is based on the fact that indirect impacts of armed conflicts on public health often constitute a far greater health threat to the people affected than violent injury, especially in poorer countries.94 This is further discussed in section 4.3 below.95 The focus of the international minimum core right to health on primary  health care does not exclude emergency medical treatment and specialised surgical services from being part of the immediately accessible  services under a nationally-defined minimum core, in particular in

89 WHO, World Health Report 2008, p. 55 (including figure 3.5); see also the definition of ‘primary health care’ in Last (ed.) (2007), accessed via Oxford Reference Online at: http://www.oxfordreference.com/view/10.1093/acref/9780195160901.001.0001/ acref-9780195160901 [last accessed 19 September 2012]. 90 The Declaration of Alma-Ata was adopted by the International Conference on Primary Health Care, Alma-Ata, USSR, 6–12 September 1978. 91 CESCR, General Comment 14 (2000), para. 43. 92 Declaration of Alma-Ata (1978), para. IV(3); the CESCR’s understanding of states’ minimum core obligations set out in para. 43 and 44 of General Comment 14 (2000) follow this definition; see also, Report of the UN Special Rapporteur on the Right to Health, A/HRC/7/11, 31 January 2008, para. 51; and WHO, World Health Report 2008, pp. 55–56. 93 Sphere Charter (2011), p. 291, holding: ‘The Minimum Standards … are not a full expression of the right to health. However, the Sphere standards reflect the core content of the right to health and contribute to the progressive realisation of this right globally.’ 94 Sphere Charter (2011), pp. 292, 311 and 331–333. See also the table on p. 293, indicating the public health impact of selected disasters. 95 See also chapter VI, sections 4.2.3 and 5.2.

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high-income countries. For example, the existence of an effective referral system has been named as a decisive component of a health system that conforms with the right to health, even if this health system prioritises primary care.96 This presumes the existence of primary (communitybased), secondary (district-based) and tertiary (specialised) facilities and services, providing a continuum of prevention and care.97 It also reflects an understanding of primary care as a hub from which patients are guided through a health system.98 As noted by the WHO, even in resource-constrained settings it is ‘not acceptable that … primary care would be reduced to a stand-alone health post or isolated community-health worker’,99 although the notion of ‘progressive realisation’ recognises that a comprehensive health system cannot be constructed immediately.100 Moreover, there are indications from constitutions, state practice and cases at national level suggesting that states may regard the provision of emergency medical care, including specialised surgeries, as forming part of the minimum core right to health, be it defined nationally or internationally. The South African101 and Finnish102 constitutions contain a right to emergency medical treatment.103 In other countries, access to emergency medical treatment has been recognised in case-law: the Supreme Court of India found that there was a constitutional duty of government-run hospitals to provide timely emergency treatment to those who are seriously ill, derived from the right to life.104 Similar cases are known from Colombia,105

  96 See, e.g. Backman et al (2008), p. 6; Report of the UN Special Rapporteur on the Right to Health, A/HRC/7/11, 31 January 2008, paras. 22(e), 55 and 66; see also WHO, World Health Report 2008, pp. 55–56.   97 See ibid.; and WHO, World Health Report 2000. In addition, even if not mentioned as part of the international minimum core of the right to health, General Comment 14 (2000) holds that the right to treatment in Art. 12(2)(c) ICESCR includes ‘the creation of a system of urgent medical care in cases of accidents, epidemics and similar health hazards, and the provision of disaster relief and humanitarian assistance in emergency situations’ (para. 16).   98 WHO, World Health Report 2008, pp. 55–56.   99 Ibid., p. xvii, box 2, warning that ‘what has been considered primary care in wellresourced contexts has been dangerously oversimplified in resource-constrained settings’. 100 Report of the UN Special Rapporteur on the Right to Health, A/HRC/7/11, 31 January 2008, para. 46. 101 Chapter II, Section 27(3) of the South African Constitution reads: ‘No one may be refused emergency medical treatment’. 102 As discussed by Toebes (1999), pp. 81, 82 and 342. 103 See also the Moldovan constitution, analysed in ECtHR, Pentiacova and 48 Others v Moldova, Appl. No. 14462/03, Decision, 4 January 2005. 104 Paschim Banga Khet Majoor Samity v State of West Bengal, Supreme Court of India, Judgment of 6 May 1996, para. 6; see also chapter IV, section 4.5. 105 Sepulveda (2008), p. 125.



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Argentina106 and Venezuela.107 Many countries that restrict access to health care for non-citizens seem to at least allow for their access to emergency medical treatment,108 a requirement that is reiterated in Art. 28 of the UN Convention on the Rights of Migrant Workers.109 Several cases decided by the ECtHR also suggest that the right to emergency medical treatment could be contained in the right to life and the prohibition of torture/inhuman and degrading treatment.110 The ECtHR is, however, not consistent in this regard.111 The South African Soobramoney case moreover shows that is it not always easy to agree on what constitutes  ‘emergency medical treatment’. In this case, the South African Constitutional Court held that Mr Soobramoney, in need of dialysis treatment because of renal failure, was not an ‘emergency’ in the sense of an accident or sudden illness, but that his condition was rather an ‘ongoing state of affairs’ and was thus not entitled to this treatment.112 The package of services that constitute ‘emergency medical treatment’ has to be determined at national level, with the help of human rights principles such as participation, non-discrimination and concentration on marginalised and disadvantaged groups, and the resources available to a particular country.113 Thus, at least in high-income countries, it can be expected that the provision of specialised emergency medical treatment will form part of a nationally-defined minimum core right to health that can be accessed by everyone. Every effort must be made to continue the provision of such treatment in times of armed conflict to address direct health consequences, if necessary with assistance from humanitarian organisations. This would also be in line with the requirement of Art. 4 ICESCR, to limit the right to health only for the reason of ‘promoting general welfare’. 106 Courtis (2008), pp. 174–176. 107 Gonzales (2008), p. 203. 108 See the discussion by Toebes (1999), pp. 318–319; Riedel (2010), p. 358; and ECSR, Complaint 14/2003, European Roma Rights Centre (ERRC) v Greece, Decision on the Merits, 8 December 2004, paras. 33–38. 109 2220 UNTS 3, entered into force on 1 July 2003. 110 ECtHR, Calvelli and Ciglio v Italy, App. No. 32967/96, Judgment, 17 January 2002, para. 49; D v UK, Appl. No. 30240/96, Judgment, 2 May 1997, paras. 51–54; and Bensaid v UK, Appl. No. 44599/98, Judgment, 6 February 2001, para. 40. 111 ECtHR, Nitecki v Poland, Appl. No. 65653/01, Decision, 21 March 2002, para. 1; and Pentiacova and 48 Others v Moldova, Appl. No. 14462/03, Decision, 4 January 2005 (2005); see also the analysis by Harris et al (2009), p. 47. 112 Soobramoney v Minister of Health (Kwazulu-Natal), Constitutional Court of South Africa, Judgment of 27 November 1997, paras. 20–21. 113 As suggested in chapter IV, section 4.3.

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Cutting down on specialised medical care when there are numerous victims suffering from serious injuries in a NIAC would not be conducive to the ‘promotion of general welfare’. If high- and middle-income countries are affected by armed conflicts, the main cause of excess mortality and morbidity is often violence, at least when the conflict is limited to a short period of time.114 This would justify prioritising the provision of emergency medical services in these situations.115 The closeness of the right to emergency medical treatment to the right to life has also prompted at least one academic commentator to argue that emergency medical treatment should form part of the minimum core content of the right to health.116 Obligations flowing from the right to health would thereby reinforce obligations under IHL relating to the provision of first aid and emergency medical treatment. Even in resource-poorer countries where definitive trauma and surgical care may not (yet) be available even in peacetime, there are simple procedures that can increase the survival chances of severely injured individuals, as pointed out in the Sphere Charter. They include ‘clearing the airway, controlling haemorrhage and administering intravenous fluids’ as well as ‘cleaning and dressing wounds, and administering antibiotics and tetanus prophylaxis’.117 These measures can stabilise patients until adequate assistance arrives from national or international humanitarian actors. The provision of long-term medical care, rehabilitation and psychological support for those who have been injured in armed conflicts seems not to be part of the emerging internationally-defined minimum core right to health. These obligations appear to rather be part of non-core obligations, the implementation of which is more dependent on resources and therefore subject to progressive realisation to a greater extent than minimum core obligations.118 This is clear from General Comment 14 which does not list such care under the heading of ‘minimum core obligations’, as well as from Art. 5(2)(c) CCM. This Article seems to recognise that the mentioned obligation established in Art. 5(1) CCM to ‘provide age- and gender-sensitive assistance, including medical care, rehabilitation and psychological support’ to cluster munition victims, cannot be realised 114 See chapter VI, section 5.2 (including n. 141). 115 The Sphere Charter (2011), p. 309, also suggests that humanitarian organisations address the major causes of morbidity and mortality prevalent in a particular conflict situation. 116 Toebes (1999), pp. 319 and 341–342; and indirectly, Sandvik-Nylund (2003), p. 74. 117 Sphere Charter (2011), p. 332. 118 See chapter IV, section 4.4.



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immediately; states must therefore ‘develop a national plan and budget, including time-frames to carry out these activities’,119 reflecting the notion of progressive realisation discussed in chapter IV. Moreover, as noted in the CESCR’s Concluding Observations on Bosnia and Herzegovina, under the right to health and other rights of the ICESCR, social assistance provided to victims of war should be distributed equally among different groups of victims.120 In this particular case, considerably lower social assistance was given to civilian victims of the 1990s armed conflicts than to military victims. 4.3. Obligations to Mitigate Indirect Health Consequences of Armed Conflicts Among the indirect health effects of armed conflicts are the spreading of infectious diseases (epidemic and endemic), rising numbers of maternal and neonatal deaths, increasing prevalence of mental illness, and complications with chronic diseases. As already observed plenty of times, civilian deaths and suffering resulting from these indirect health effects tend to be far greater than those from violent injuries, and some of them may occur only in the long-term.121 However, the exact scope of this indirect impact on public health depends very much on the circumstances, including the state of the health system of the country in which the armed conflict takes place. The question arises as to whether and to what extent IHL and the right to health place obligations on states to mitigate these indirect health consequences. 4.3.1. States’ Obligations under IHL to Alleviate Indirect Health Consequences of Armed Conflicts Due to its historical origins, IHL focuses primarily on the protection of military medicine and the mitigation of the direct health effects of armed conflicts. However, there are several indications that obligations to alleviate armed conflicts’ indirect impacts on public health are also part of IHL. First, in section 4.1.1 above the broad definition of ‘wounded and sick’ was referred to which is not restricted to those who suffer from injuries sustained in on-going hostilities, but also includes maternity cases, newborn babies and other persons who may be in need of immediate medical 119 Art. 5(2)(c) CCM. 120 CESCR, Concluding Observations—Bosnia and Herzegovina, E/C.12/BIH/CO/1 (2006), paras. 18, 19 and 39. 121 See e.g. chapter VI, sections 4.2.3 and 5.2.

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assistance or care. Moreover, Art. 7(2) AP II contains the obligation to ensure that medical care is provided to the wounded and sick as ‘required by their condition’, no matter whether this ‘condition’ is due to violence or other illness; as well as the requirement that the wounded and sick are treated humanely.122 In general terms, humane treatment implies treating individuals in a manner that allows them to lead an acceptable existence in NIACs, as close to normal as possible.123 This would only be possible if indirect health effects of armed conflicts were addressed in a similar way as violent injuries. Second, this is further confirmed by the wide understanding of ‘medical activities’ protected by Art. 10 AP II. The ICRC Commentary on this Article holds that the term ‘medical activities’ should be interpreted broadly, i.e. in addition to medical care and treatment of the wounded and sick, it includes acting to ‘vaccinate people, make diagnoses, give advice etc’.124 These activities are vital for mitigating indirect health consequences of NIACs. Third, IHL protects all medical units and transports, no matter whether they care for war-wounded or other patients. Although more complex than the protection of medical units and transports, the IHL protection of medical personnel is also not restricted to the protection of military doctors and nurses. It includes all ‘persons assigned, by a Party to the conflict, exclusively to the medical purposes’,125 for example for purposes such as ‘the prevention of disease’.126 These obligations to address indirect health consequences are clearly reinforced and specified by the simultaneous application of the minimum core right to health. 4.3.2. Minimum Core Obligations under the Right to Health Addressing Indirect Health Consequences of NIACs As suggested, under the international minimum core obligations flowing from the right to health, states are to concentrate on building a basic health system that ensures the provision of ‘essential primary health care’.127 To recall, this includes a prioritisation of ‘immunisation against major infectious diseases occurring in the community’, of taking 122 See also rule 87 ICRC Study, Vol I, pp. 306–308. 123 See Pictet (1979), I - Principle of Humanity. 124 ICRC Commentary (AP I/II), para. 4687. 125 Art. 8(c) AP I. 126 Art. 8(e) AP I. 127 CESCR, General Comment 14 (2000), para. 43; and General Comment 3 (1990), para. 10.



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‘measures to prevent, treat and control epidemic and endemic diseases’, as well as of ensuring ‘reproductive, maternal (pre-natal as well as post-natal) and child health care’.128 Moreover, the internationally-defined minimum core right to health emphasises the great importance of protecting the underlying determinants of health—‘access to a minimum essential food which is nutritionally adequate and safe’ as well as ‘access to basic shelter … and sanitation, and an adequate supply of safe and potable water’.129 This focus seems particularly helpful for averting some of the most dreadful indirect health consequences of armed conflicts. This shall be illustrated with the example of infectious diseases, which account for a great majority of preventable indirect deaths.130 As public health experts observe, armed conflicts create conditions that are conducive to their transmission, progression and lethality.131 Among the most deadly infectious diseases in times of armed conflict are, according to the Sphere Charter, measles, diarrhoea, acute respiratory infections and malaria.132 Checchi et al add tuberculosis.133 Epidemiologists explain that different diseases have different routes of transmission: by air droplet (breathing, sneezing and coughing), faecal-orally, sexually, vectorborne (through insect bites), through blood, from mother to child, or through unclean wounds.134 Various risk factors can increase the likelihood of an outbreak and of transmission. Among the risk factors that are recognised to cause the majority of excess morbidity and mortality from infectious diseases in armed conflict situations are ‘overcrowding; inadequate shelter; insufficient nutrient intake; insufficient vaccination coverage; poor water, sanitation and hygiene conditions; high exposure to and/ or proliferation of disease vectors; [and] lack of and/or delay in treatment’.135 128 Ibid., para. 44(a)–(c); see also supra, section 4.2.2 (including ns. 89–92). 129 Ibid., para. 43(b) and (c). 130 See chapter VI, section 5.2; this was also recognised by the CESCR in its Concluding Observations—Democratic Republic of the Congo, E/C.12/COD/CO/4 (2009), para. 34. 131 Checchi et al (2007), p. 2; Sphere Charter (2011), p. 311; and Thoms and Ron (2007b), p. 16. 132 Sphere Charter (2011), p. 311; WHO, Manual on Communicable Disease Control in Emergencies (2005), p. 1. 133 Checchi et al (2007), pp. 26–27. 134 Checchi et al (2007), p. 4; and WHO, Manual on Communicable Disease Control in Emergencies (2005), chapter 5. 135 Checchi et al (2007), p. 20; see also WHO, Manual on Communicable Disease Control in Emergencies (2005), p. 110; and WHO, World Health Report 2007, pp. 20–21.

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Different risk factors are linked to an increased risk of an outbreak of certain infectious diseases, depending on their route of transmission, and to faster transmission. To name but a few examples, overcrowded settings favour the spread of diseases that are transmitted by air droplet (particularly acute respiratory infections, measles, meningitis, tuberculosis, flu) and by the faecal-oral route (diarrhoeal diseases including Shigella and cholera).136 Vector-borne diseases such as malaria do not particularly  depend on overcrowding.137 Yet, inadequate shelter can increase exposure to disease vectors. Insufficient nutrition intake increases the risk of outbreak of almost all infectious diseases,138 due to its immediate effect on the human immune system.139 Inadequate water, sanitation and hygiene conditions primarily increase the infection rate of faecal-oral diseases.140 Control measures for infectious diseases must consider both transmission routes and risk factors. Prioritising the provision of adequate shelter, access to sufficient and safe food and water and to adequate sanitation facilities are recognised as measures that will always be conducive to the affected population’s health status, since they reduce risk factors, regardless of the specificities of the situation.141 This is in harmony with the internationally-defined minimum core obligations flowing from the right to health that call on states to prioritise the implementation of the ‘underlying determinants of health’. The further priority measures epidemiologists recommend to prevent the spread of infectious diseases in emergencies depend on the local context:142 the climate of a region, the health status of the population prior to the armed conflict, whether the population has been displaced and is living in camps, the extent to which affected populations can be accessed by health workers, the relative importance of prevention and treatment, 136 Checchi et al (2007), pp. 20–21; WHO, Manual on Communicable Disease Control in Emergencies (2005), pp. 47–48. 137 Checchi et al (2007), pp. 20–21; and World Health Report 2007, pp. 21–22. 138 See e.g. Young and Jaspars (2006), pp. 23–33; WHO, Manual on Communicable Disease Control in Emergencies (2005), pp. 1, 65 and 68; and Checchi et al (2007), p. 23. 139 Described in detail by Checchi et al (2007), p. 29. 140 Ibid., p. 25; World Health Report 2007, pp. 21–22; WHO, Manual on Communicable Disease Control in Emergencies (2005), pp. 27 and 33. 141 See e.g. recommendation in Sphere Charter (2011), p. 312; Checchi et al (2007), p. 39; and WHO, Manual on Communicable Disease Control in Emergencies (2005), pp. 1, 33 and 40. 142 See the Sphere Charter (2011), pp. 61, 294 and 309; Checchi et al (2007), p. 39; and mentioned time and again in WHO, Manual on Communicable Disease Control in Emergencies (2005), e.g. pp. 18–19.



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the available financial and human resources and so on.143 This flexibility conforms to the international minimum core obligations formulated in  broad terms in General Comment 14. It does not specify against which  infectious diseases the state has to provide immunisation, it just requires that immunisation covers ‘the major infectious diseases occurring in the community’.144 Likewise, it does not specify the exact measures that are to be taken to ‘prevent, control and treat epidemic and endemic diseases’.145 Nonetheless, human rights principles as well as public health principles seem to reasonably guide the choice of priority health interventions. In chapter IV it was argued that states should define what health services they provide for individuals under their jurisdiction as part of a nationallydefined minimum core right to health, in accordance with available resources, and guided by the internationally-defined minimum core which is inevitably formulated in broad terms. Such definition should be the outcome of a consultative process which includes health professionals, should take equal account of the health care needs of all members of the society, in particular of marginalised groups, and should address most common health issues prevailing in a community.146 These priorities will not necessarily change in times of armed conflict and, if existent, a nationally-defined minimum core will remain relevant for guiding priority health interventions in NIACs.147 Diseases that are common in a community may become even more prevalent in NIACs. Yet, adaptations will sometimes have to be made, if only to accommodate the fact that national health care providers are supported by international actors to cope with the strains put on the health system by the armed conflict, in accordance with states’ obligations to seek international assistance 143 For more details see Checchi et al (2007), pp. 35–39; and WHO, Manual on Communicable Disease Control in Emergencies (2005). 144 CESCR, General Comment 14 (2000), para. 44(b); Report of the UN Special Rapporteur on the Right to Health, A/HRC/7/11, 31 January 2008, para. 52. 145 CESCR, General Comment 14 (2000), para. 44(c). It should be noted that in higherincome countries rising mortality rates due to indirect health consequences of armed conflicts are rather due to complications with the treatment of chronic diseases. Responding to this as a matter of priority in times of armed conflict is not excluded under the minimum core right to health. On this see e.g. Sphere Charter (2011), p. 336; and Miller and Arquilla (2008), p. 187 (analysing the context of natural disasters). 146 See chapter IV, section 4.3.1. 147 See Sphere Charter (2011), p. 298, suggesting that interventions to address the health impact of armed conflicts shall e.g. make use of national standards and guidelines, including treatment protocols and essential drug lists, as far as these are up to date and reflect evidence-based practice.

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under Art. 2(1) ICESCR.148 This obligation gains importance when states are unable to implement minimum core obligations by utilising their maximum available resources. In some cases, priorities need to be shifted if the armed conflict brings about diseases that were previously absent from a community;149 or if the health system has to treat a large number of people wounded and traumatised in hostilities. Human rights and public health principles can equally guide those adaptation processes. The Sphere Charter stipulates that the principle of participation shall be followed in the form of consulting affected populations on priority health interventions as far as possible.150 Likewise, ensuring non-discriminatory/equal access to health services, and their acceptability and quality remain relevant.151 Guaranteeing equal access to health care may also require particular attention to disadvantaged groups, which, in conflict situations can be children, pregnant women, elderly or disabled people, but also members of a specific ethnic or religious group, people with a particular political affiliation, internally displaced persons or people living in areas with damaged infrastructure.152 The strict application of the equality/non-discrimination principle becomes exceedingly important in the implementation of the right to health in highly politicised armed conflict situations.153 148 This obligation has been confirmed by the CESCR in many of its concluding observations, e.g. Concluding Observations—Afghanistan, E/C.12/AFG/CO/2–4 (2010), paras. 26, 35 and 45; Democratic Republic of Korea, E/C.12/1/Add.95 (2003), paras. 27 and 42; Democratic Republic of the Congo, E/C.12/COD/CO/4 (2009), para. 16; and Sri Lanka, E/C.12/LKA/CO/2–4 (2010), paras. 28–29. See also chapter VIII, part 2. 149 E.g. when internally displaced persons (IDPs)/refugees bring a disease to their host community; see WHO, Manual on Communicable Disease Control in Emergencies (2005), pp. 18–19, 47, 104, 110; and Elbe (2002), pp. 171–175. 150 Sphere Charter (2011), pp. 55–57 and 255; WHO, Manual on Communicable Disease Control in Emergencies (2005), pp. 30, 46 and 88; Report of four UN Special Rapporteurs on Their Mission to Lebanon and Israel, A/HRC/2/7, 2 October 2006, paras. 103(e) and 104(e); CESCR, Concluding Observations—India, E/C.12/IND/CO/5 (2008), para. 72. This is also recognised in other literature relating to the provision of humanitarian assistance, see e.g. Harvey and Lind (2005), pp. 40–41; and Harroff-Tavel (2003), pp. 482–483. 151 Sphere Charter (2011), pp. 55–57 and 296; and as discussed in chapter IV, part 5; see also CESCR, Concluding Observations—Sri Lanka, E/C.12/1/Add.24 (1998), para. 22; Democratic Republic of Korea, E/C.12/1/Add.95 (2003), para. 42; and HRCttee, Concluding Observations–USA, CCPR/C/USA/CO/3/Rev.1 (2006), para. 26 (referring to the assistance provided to people affected by Hurricane Katrina). 152 Sphere Charter (2011), pp. 63–64 and 294–295; see also, Harroff-Tavel (2003), p. 471; and Report of four UN Special Rapporteurs on Their Mission to Lebanon and Israel, A/ HRC/2/7, 2 October 2006, paras. 63, 89 and 104(d); and CESCR, Concluding Observations— Algeria, E/C.12/DZA/CO/4 (2010), paras. 19–20; Afghanistan, E/C.12/AFG/CO/2–4 (2010), paras. 40 and 42; and Sudan, E/C.12/1/Add.48 (2000), para. 37. 153 This is also recognised in the Report of the UN Special Rapporteur on the Right to Health, A/HRC/7/11, 31 January 2008, para. 63.



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These principles will interact with public health principles such as the maxim to ensure the greatest health benefits to the greatest number of people through priority health interventions in NIACs.154 For instance, epidemiologists have methods to determine high-risk infectious diseases, addressing which will be a priority.155 However, difficult decisions that involve inevitably utilitarian considerations in view of limited available resources and capacities will always remain to be made in armed conflicts. To conclude, the minimum core right to health as well as human rights and public health principles promise to guide states (and humanitarian actors) to set priorities in their efforts to mitigate one of the most prevalent indirect health consequences of NIACs: the spread of epidemic and endemic diseases. Similar analyses could be conducted with regard to other elements of the internationally-defined minimum core right to health, such as the obligation to ‘ensure reproductive, maternal and child health care’156 and ‘to provide education and access to information concerning the main health problems in the community, including methods of preventing and controlling them’.157 The right to health thereby gives further specification to the mentioned IHL rules that indicate states’ obligations to address the indirect impact armed conflicts can have on public health. 4.3.3. Mental Health—a Neglected Indirect Health Consequence There is one widespread indirect health consequence of armed conflict that states seem neither obliged to address as a matter of priority as part of an internationally-defined minimum core right to health nor under IHL: the issue of mental health.158 The prevalence of mental disorder increases during armed conflict as well as in post-conflict settings.159

154 Sphere Charter (2011), pp. 309–310. 155 See Checchi et al (2007), pp. 35–36, describing a systematic epidemiological assessment of disease risk designed to guide interventions in emergency settings; also WHO, Manual on Communicable Disease Control in Emergencies (2005), chapter 5. 156 CESCR, General Comment 14 (2000), para. 44(a); and Sphere Charter (2011), pp. 320–330. 157 Ibid., para. 44(d). In armed conflict situations, health-related information provided should for example relate the risks posed by land mines, cluster munitions and unexploded ordnance. 158 Mental health services are not mentioned as an element of the internationallydefined minimum core right to health set out in paras. 43–45 of the CESCR’s General Comment 14 (2000). 159 Kanter (2008), pp. 61–63; and Murphy and Lakshminar (2006).

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One source estimates that prevalence is two to four times higher than in stable situations.160 Like disabilities resulting from violent injuries, mental health problems have a long-term effect on the affected individuals’ ability to take part in the social, economic, political and cultural life of their community long after the conflict has ended. In view of the fact that many resource-poor countries affected by armed conflict did not run mental health services even before an armed conflict may have started,161 it is understandable that the CESCR did not include an obligation to provide mental health care into its international definition of the minimum core right to health. However, as confirmed by the wording of Art. 12(1) ICESCR, that explicitly refers to the ‘right to the highest attainable standard of physical and mental health’162 and provisions of the CCM,163 taking concrete and deliberate steps to provide for mental health services progressively seems to be called for in particular in conflict-affected countries. If necessary, international humanitarian organisations can be called on to assist in this matter.164 5. Medical Personnel, Medical Facilities and Medical Transports Mitigating the direct and indirect health consequences of NIACs discussed so far is impossible without the presence of skilled medical personnel, functioning medical units (facilities) and medical transports. In the following, it is shown that IHL gives detailed definitions of ‘medical personnel’, ‘medical units’ and ‘medical transports’ and offers them special protection from the effects of hostilities, inter alia by giving them the right to display the distinctive emblem to render their protected status visible. These detailed definitions can be regarded as a valuable specification of the components of a health system that states have to create and maintain for individuals to enjoy their minimum core and non-core right to health. However, the IHL definitions also have certain limits that can partly be compensated for by the simultaneously applicable right to health.

160 Checchi et al (2007), p. 33, referring to a whole range of studies in their n. 38. 161 This is noted by Kanter (2008), p. 65. 162 Emphasis added. 163 Art. 5(1), 5(2)(e) and (h) and Art. 6(7) CCM refer to rehabilitation and psychological support that should be given to cluster munition victims. Art. 5(2)(e) indicates that such support should equally be given to those who suffered disabilities from other causes. 164 As suggested in Sphere (2011), pp. 333–336; see also below chapter VIII, section 2.2.2 b).



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This is the case in particular with states’ more pro-active obligations to facilitate the work of medical personnel, units and transports. IHL of NIACs protects medical personnel,165 medical units166 and medical transports167 in a similar way to the wounded and sick themselves; and gives them also the right to make their protected status visible.168 Violations of these rules in NIACs are criminalised under Arts. 8(2)(e)(ii) and (iv) ICC Statute. 5.1. The IHL Definitions of ‘Medical Units’ and ‘Medical Transports’— Specifying Obligations under the Right to Health Because there is no IHL definition of medical units and medical transports in AP II, the comprehensive definitions set out in GC I, GC IV and AP I are resorted to, as suggested in the ICRC Commentary on Art. 11 AP II169 and affirmed by the ICRC Study.170 Thus, based on Art. 19 GC I, Art. 18 GC IV and Art. 8(e) AP I ‘medical units’ include all medical establishments, be they permanent or temporary, military or civilian, fixed or mobile, that are exclusively assigned to medical purposes. These include hospitals, laboratories, transfusion and rehabilitation centres, equipment depots, preventive medicine centres and institutes, medical and pharmaceutical stores, and first aid posts.171 Based on Art. 8(f)–(g) AP I ‘medical transport’ means any means of transportation  on land, water or air assigned exclusively to transporting the wounded, sick and shipwrecked, medical personnel and medical equipment and supplies, be they military or civilian, permanent or temporary. Ambulances or other medical land vehicles (e.g. trucks or trains), hospital ships and medical aircrafts and helicopters are examples of such ‘medical transports’.

165 Art. 9(1) AP II; rule 25 ICRC Study, Vol I, p. 79. 166 Art. 11(1) AP II; rule 28 ICRC Study, Vol I, p. 91 167 Art. 11(1) AP II; rule 29 ICRC Study, Vol I, p. 98. Breau (2007), p. 176, analysing the ICRC Study, does not doubt the customary status of these rules, but holds that the ICRC Study could have cited much more evidence for state practice and opinio iuris dating from the earliest military manuals and Geneva Conventions, to further support their customary status. 168 Art. 12 AP II. 169 ICRC Commentary (AP I/II), paras. 4711–4712. 170 ICRC Study, Vol I, p. 95 (medical units) and p. 100 (medical transports); see also Kleffner (2008), p. 340. 171 The customary status of this definition is endorsed by rule 28 ICRC Study, Vol I, p. 91; confirmed also by Breau (2007), pp. 177–178.

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These are all important elements of a well-developed health system for the realisation of the minimum core and non-core components of the right to health. In particular, they can be seen as a specification of what states are obliged to provide under Art. 12(2)(d) ICESCR, calling on them to take steps to create ‘conditions which would assure to all medical service and medical attention in the event of sickness’. Direct destruction or dismantling of such facilities not in conformity with the requirements of Art. 4 ICESCR in armed conflicts would violate the right to health, as well as IHL which requires respect for and protection of medical units and transports ‘at all times’,172 i.e. prohibiting their direct attack. By giving special attention to the protection of medical transports, IHL highlights the importance of this particular medical service for the protection of the right to health during NIACs, when potentially more injured or sick individuals have to be transported to hospitals for emergency care than is normal, under more challenging conditions. The ICRC Commentary on Art. 11 AP II specifies that medical transports cannot be attacked even when they are at a given moment in time not used to transport any wounded or sick;173 nor can their work or movement be interfered with arbitrarily in any other manner. The IHL provisions on medical transports are a good example of how IHL imposes obligations that aim to mitigate the direct health consequences in the specific situation of armed conflict, specifying also the content of the right to ensure access to health care facilities, goods and services in this particular situation. As mentioned above, an effective, integrated referral system is an important part of a health system functioning in accordance with the right to health,174 which arguably includes sufficient medical transport. Yet, a detailed protection of medical transports as given in IHL might be less relevant for ensuring the health of conflict-affected individuals in poorer countries, where an effective medical transport is frequently absent even in peacetime, inter alia because of insufficient roads. In these situations the protection of international humanitarian organisations’ activities may be more important for safeguarding the health of conflict-affected communities.175

172 Art. 11(1) AP II. 173 ICRC Commentary (AP I/II) on Art. 11(1) AP II, para. 4716. 174 See supra, n.96; and Report of the UN Special Rapporteur on the Right to Health on His Mission to India, A/HRC/14/20/Add.2, 15 April 2010, para. 54. 175 See also the discussion in chapter VIII, part 3.



mitigating the public health impact of armed conflicts227 5.2. The IHL Definition of ‘Medical Personnel’—Specification of the Different Health Professionals Needed to Ensure Comprehensive Health Care

The definition of ‘medical personnel’ in IHL applicable to NIACs is rather complex. While AP II does not contain a definition of medical personnel, the definition given in Art. 8(c) and (e) AP I is regularly relied on.176 Accordingly, medical personnel covers ‘those persons assigned, by a Party to the conflict, exclusively to the medical purposes’,177 i.e. to ‘the search for, collection, transportation, diagnosis or treatment—including first-aid treatment—of the wounded, sick and shipwrecked, or for the prevention of disease’,178 and ‘to the administration of medical units or to the operation or administration of medical transports. Such assignments may be either permanent or temporary’.179 The ICRC Study suggests that the definition of ‘medical personnel’ has been further specified through developments in customary law applicable to NIACs. It holds that the definition of ‘medical personnel’ that was originally suggested in the drafting process of AP II, but which was removed during the simplification process shortly before the Protocol was adopted180 could be relied on.181 According to this definition, in NIACs the term ‘medical personnel’ includes:    (i) medical personnel of a party to the conflict, whether military or civilian;   (ii) medical personnel of Red Cross or Red Crescent organisations recognised and authorised by parties to the conflict; (iii) medical personnel of other aid societies recognised and authorised by a party to the conflict and located within the territory the conflict is taking place.182

The definition differs in two ways from the more specific definition of medical personnel given in Art. 8(c) and (e) AP I,183 and reflects states’ 176 ICRC Commentary (AP I/II) on AP II, para. 4661; similarly, see Bothe, Partsch and Solf (1982), p. 656; commentary on rule 25 ICRC Study, Vol I, p. 82; and Kleffner (2008), p. 345. 177 Art. 8(c) AP I. 178 Art. 8(e) AP I. 179 Art. 8(c) AP I. 180 As mentioned in chapter III, section 2.2. 181 Commentary on rule 25 ICRC Study, Vol I, p. 83; while this seems to be a reasonable suggestion, none of the ‘practice’ collected in Vol II, pp. 453–480 of the ICRC Study suggest that states regard this definition as customary. 182 ICRC Commentary (AP I/II), para. 4667, based on the wording of the official records from the drafting conference of AP I/II; see also commentary on rule 25 ICRC Study, Vol I, p. 83. 183 These two differences are noted ibid. To compare, in AP I the term medical personnel includes: ‘(i) medical personnel of a Party to the conflict, whether military or civilian,

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on-going fear of undue foreign intervention in NIACs. First, the phrase ‘Red Cross and Red Crescent organisations’184 was introduced ‘to cover not only assistance available on the government side, but also groups or sections of the Red Cross on the other side which already existed, and even improvised organisations which might be set up during the conflict’.185 Second, the phrase ‘aid societies … located within the territory the conflict is taking place’ discloses the intention of states to avoid situations in which obscure private groups from outside the country establish themselves by claiming the status of a relief society, and are then recognised by the insurgents.186 Thus, in NIACs it is only the personnel of those (recognised and authorised) aid societies (other than Red Cross or Red Crescent Organisations) that are located within the territory of the state where the conflict takes place that enjoy the protection as ‘medical personnel’ under AP II.187 Similar to medical units and transports, the CESCR’s General Comment 14 recognises the existence of ‘trained medical and professional personnel’188 as essential for the realisation of the right to health189—and the definitions given in IHL can be regarded as a helpful specification of the range of health professionals needed to ensure comprehensive health care of the population. Under the right to health, states are equally prohibited to arbitrarily interfere with the work of health professionals, as is for example clear from the reports of the UN Special Rapporteur on the Right to Health. Several of his reports express concern that ‘in some countries, on account of their professional activities, health workers have been including those described in the First and Second Conventions, and those assigned to civil defence organisations; (ii) medical personnel of national Red Cross or Red Crescent Societies and other national voluntary aid societies duly recognised and authorised by a Party to the conflict’ (Art. 8(c) AP I); and ‘(iii) medical personnel of medical units or medical transports made available to a party to the conflict for humanitarian purposes by (a) a neutral State which is not Party to that conflict; (b) by a recognised and authorised aid society of such a State; (c) by an impartial international humanitarian organisation.’ (Art. 9(2) AP I). 184 Emphasis added. 185 ICRC Commentary (AP I/II), para. 4666; the phrase ‘Red Cross and Red Crescent Organisations’ is also used in Art. 18(1) AP II. 186 ICRC Commentary (AP I/II), para. 4667. 187 Further see infra, section 5.4. 188 General Comment 14 (2000), paras. 12(a) and (d), 36 and 44(e). 189 The importance of health professionals in the realisation of the right to health is also recognised in various reports of the UN Special Rapporteur on the Right to Health, e.g. E/CN.4/2003/58, 13 February 2003, para. 95; A/60/347, 12 September 2005, from para. 8; A/HRC/4/28, 17 January 2007, para. 41; and A/HRC/7/11, 31 January 2008, paras. 68(b) and 75–86.



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victims of discrimination, arbitrary detention, arbitrary killings and torture, and have their freedom of opinion, speech and movement curtailed’.190 These ‘negative’ obligations flowing from the right to health and other human rights clearly reinforce the IHL protection of medical personnel from direct attacks.191 5.3. Obligations to Promote and Facilitate the Work of Medical Personnel, Units and Transports Under IHL and the right to health, states are moreover obliged to actively promote and facilitate the work of medical personnel, units and transports. The extent of this obligation in IHL is not entirely clear, since in some respect the rules set out in the ICRC Study seem to lower their scope compared to the treaty rules in AP II. Yet, the simultaneous applicability of the right to health may compensate for the shortcomings in the scope of more ‘positive’ and pro-active obligations in IHL, at least as far as the state party to the conflict is concerned. Art. 9(1) AP II requires that medical personnel be granted ‘all available help for the performance of their duties’. The extent to which such help is to be given in NIACs seems to be more restricted than in IACs. Art. 15(2) AP I specifies that in IACs civilian medical personnel shall be granted all available help in particular in areas where civilian medical services have been disrupted due to hostilities; and Art. 15(4) AP I explicitly gives ‘civilian medical personnel access to any place where their services are essential’ albeit ‘subject to such supervisory and safety measures as the relevant Party to the conflict may deem necessary’.192 The fact that the ICRC Study does not even include the duty to provide medical personnel with ‘all available help for the performance of their duties’ in rule 25193 raises doubts as to whether the treaty obligation in Art. 9(1) AP II can be interpreted broadly, let alone include the rules applicable to IACs. Likewise, the ICRC Commentary on Art. 11 AP II suggests that the obligation to respect and protect medical units and transports includes an obligation ‘to actively take measures to ensure that medical units and transports are able to 190 Report of the UN Special Rapporteur on the Right to Health, E/CN.4/2003/58, 13 February 2003, para. 97. 191 ICRC Commentary (AP I/II) on Art. 9(1) AP II, paras. 4673–4674. 192 Art. 5(4) AP I; and Kleffner (2008), p. 347. 193 Rule 25 ICRC Study, Vol I, p. 97, reads: ‘Medical personnel exclusively assigned to medical duties must be respected and protected in all circumstances. They lose their protection if they commit, outside their humanitarian function, acts harmful to the enemy.’

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perform their functions and to give them assistance where necessary’.194 The commentaries on rules 28 and 29 of the ICRC Study do not, however, reiterate this pro-active obligation.195 The reason for the more restricted customary rules in the ICRC Study may be the ‘practice’ the ICRC relied on to determine their content:196 with few exceptions,197 the military manuals and other ‘practice’ cited in the Study refer solely to obligations to ‘respect and protect’ medical personnel, units and transports, and does not include a direct account of more far-reaching obligations of states to actively facilitate the work of medical personnel, transports and units. States’ parties to the ICESCR clearly have an obligation to take proactive measures to facilitate the work of medical personnel, transports and units, in particular their endeavours to guarantee the implementation of the minimum core right to health, including in territories under the control of non-state armed groups.198 It starts with the obligation to ‘provide appropriate training to health personnel’ which the CESCR considers part of the international minimum core right to health.199 Guaranteeing physical accessibility to at least the essential health services contained in the minimum core right to health and relevant IHL rules discussed in section 4.3 above, would for example imply an obligation to support medical personnel and transports to reach populations in infrastructurally damaged areas, who would otherwise be denied their right to treatment.200 The CESCR’s Concluding Observations on Israel point in this direction. Referring to Israel’s closures of the Occupied Palestinian Territories, the CESCR recalled Israel’s obligation to ‘give full effect to its obligations under the Covenant and, as a matter of priority, to undertake to ensure safe passage at checkpoints for Palestinian medical staff’201—an obligation that includes a ‘pro-active’ dimension. Similarly, in its Concluding Observations 194 ICRC Commentary (AP I/II), para. 4714. 195 ICRC Study, Vol I, p. 96 (units) and pp. 101–102 (transports) respectively. 196 ICRC Study, Vol II, chapter 7, Section A (personnel), pp. 453–479; Section D (units), pp. 507–534 and section E (transports), pp. 547–562. 197 E.g. Argentina’s military manual stipulating that ‘medical personnel shall be respected, protected and assisted in the performance of their duties …’ (emphasis added), ICRC Study, ibid., p. 457; Likewise, see the Canadian military manual, ibid., p. 459; the Netherland’s military manual, ibid., p. 462; and New Zealand’s military manual, ibid., p. 463. Regarding ‘positive’ duties towards medical transports, see e.g. the German military manual, holding that ‘their unhampered employment shall be ensured at all times’, ibid., p. 551. 198 As also noted supra section 3.1. 199 CESCR, General Comment 14 (2000), paras. 44(e) and 36; see also the reports of the UN Special Rapporteur on the Right to Health, cited supra, n. 189. 200 This is e.g. observed by Currea-Lugo (2001), p. 1122. 201 CESCR, Concluding Observations—Israel, E/C.12/1/Add.27 (1998), para. 39.



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on Russia, the CESCR for instance called on the government ‘to allocate sufficient funds to reinstate basic services, including the health and education infrastructure’ in Chechnya despite the ‘difficulties posed by ongoing military operations’.202 Reinstating basic health services would surely include an obligation to actively facilitate the work of medical personnel, transports and units in conflict-affected areas. IHL further protects all ‘medical activities compatible with medical ethics’203 under Art. 10 AP II, regardless of whether they are performed by recognised204 medical personnel205 or ‘any other persons professionally carrying out medical activities, such as nurses, midwives, pharmacists and medical students who have not yet qualified’.206 Art. 10 AP II proscribes coercing medical personnel to act contrary to their professional duties and ethics,207 and prohibits any punishment of persons for engaging in such medical activities.208 However, IHL contains a strong caveat with regard to the respect for medical duties in Art. 10(3) and (4) AP II. This caveat could be remedied by the parallel application of the right to health. Paragraphs (3) and (4) of Art. 10 AP II are a compromise of the professional obligation of medical personnel to maintain confidentiality regarding the identity and medical record of their patients on the one hand, and the fear that introducing such a provision without any restriction would contradict the principle of non-interference with the internal affairs of a state on the other hand.209 Though these paragraphs guarantee respect for ‘professional obligations of persons engaged in medical activities regarding the information which they may acquire concerning the wounded and sick under their care’, and establish that ‘no person engaged in medical activities may be penalised in any way for refusing or failing to give [such] information…’, these guarantees are subjected to national law. As noted by the ICRC Commentary 202 CESCR, Concluding Observations—Russia, E/C.12/1/Add.94 (2003), paras. 10 and 39; similarly, Colombia, E/C.12/COL/CO/5 (2010), para. 7. 203 ICRC Commentary (AP I/II), para. 4679; Kleffner (2008), pp. 347–348, listing sources of medical ethics, such as the Hippocratic Oaths as set out in the Declaration of Geneva adopted by the World Medical Association. 204 For more details on the recognition requirement, see section 5.4 below. 205 As defined above, section 5.2. 206 ICRC Commentary (AP I/II) on Art. 10(1) AP II, para. 5686. 207 Art. 10(2) AP II; rule 26 ICRC Study, Vol I, p. 86; Breau (2007), p. 178, rightly doubts the customary status of Art. 10(2) AP II since this Article (together with Art. 16 AP I) was the first treaty provision ever with this content, and the practice cited by the Study is not very extensive (see ICRC Study, Vol II, pp. 487–498). 208 Art. 10(1) AP II; rule 26 ICRC Study, Vol I, p. 86. 209 ICRC Commentary (AP I/II), para. 4684.

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on Art. 10(3) and (4) AP II, this can reduce their scope considerably210 and endanger the principle of neutrality of medical activities, since it minimises the government’s obligation to merely respect the rule of (national) law.211 Even though the national law caveat is not repeated in the customary rule 26 of the ICRC Study which is inter alia based on Art. 10 AP II, in the commentary to this rule it is observed that states are not prevented from obliging medical personnel to give information contained in medical files; and that they may even impose a sanction on medical personnel who refuse to do so.212 At the same time the Study observes that there are some states that have adopted a system of complete confidentiality with respect to medical information.213 Writing on health professionals and the right to health, the Special Rapporteur on the Right to Health emphasised the ‘central importance of states building an environment that supports the adoption of rights-based approaches by the health professional community’.214 He further noted that ‘it is particularly important that states do not place health professionals in a position where they may be called on to use their skills to further violations of human rights of the people they serve …’.215 The CESCR’s General Comment on Art. 12 ICESCR also holds that ‘all health facilities, goods and services must be respectful of medical ethics … i.e. … being designed to respect confidentiality and improve the health status of those concerned.’216 From this, it follows that if a state has ratified the ICESCR, it would be obliged to bring its national legislation into conformity with these requirements. In theory, this would remove the problem with the national law caveat in IHL and would guarantee the neutrality of medical activities in NIACs. This is a good example for how the simultaneous applicability of the right to health could compensate for IHL of NIACs’ deference to state sovereignty, enhancing the protection of individuals. Another problem with the national law caveat is that it remains unclear what it means in relation to non-state armed groups. First, it is uncertain whether non-state armed groups could require information regarding the treatment of and care for the wounded and sick from medical personnel 210 Ibid. 211 This is noted by Bothe, Partsch and Solf (1982), p. 662; and Kleffner (2008), p. 348; Green (2008), p. 360, describes the Article as ‘self-destructive’ for this reason. 212 Commentary on rule 26 ICRC Study, Vol I, p. 88. 213 Ibid. 214 Report of the UN Special Rapporteur on the Right to Health, A/60/348, 12 September 2005, para. 16. 215 Ibid. 216 CESCR, General Comment 14 (2000), para. 11(c).



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under existing national legislation when they gain control over a territory; and second it is even more doubtful whether states would accept that any rebel administration is allowed to adopt ‘national law’ requiring medical personnel to pass such information.217 The first problem would not be there, if existing national legislation were in conformity with the right to health as outlined above. Concerning the second question, too little is known about the actual practice of non-state armed groups in this area and states’ reactions to possible ‘laws’ enacted by non-state armed groups.218 It is, however, desirable that neither states nor non-state armed groups unduly restrict medical activities compatible with medical ethics through national legislation. 5.4. The IHL Obligation to Recognise Medical Personnel, Units and Transports—a Restricting Requirement in Situations where many Medical Tasks are Fulfilled by International Actors The right to health has the potential to partially compensate for another limit of IHL. In IHL, the special protected status including the right to display the distinctive emblem is reserved for those medical personnel, transports or units that have been ‘recognised’ (i.e. they must have been regularly trained, constituted and registered in accordance with national legislation) and ‘authorised’ (i.e. the party to the conflict must agree that the personnel are employed as medical personnel) by one of the parties to the conflict.219 This includes medical personnel, units and transports of Red Cross and Red Crescent Organisations.220 The recognition and authorisation requirement, together with the restricted definition of ‘medical personnel’ given above, focuses IHL’s protection on recognised and authorised national medical personnel, units and transports that were present in a particular territory before a NIAC started. As is clear from the drafting records of AP II, this was mainly due to the fear of states that

217 Bothe, Partsch and Solf (1982), p. 662. 218 See also the discussion in chapter III, section 4.6 and chapter VI, section 5.3.3. 219 While Art. 11 AP II does not—in contrast to Arts. 12(2) and 9(2) AP I—explicitly include the requirement of authorisation and recognition by a party to the conflict, from Art. 12 AP II it is clear that only recognised and authorised medical units and transports can display the distinctive emblem. Art. 12 AP II holds that the distinctive emblem can only be displayed ‘under the direction of the competent authority concerned’. Moreover, the ICRC Study, Vol I, p. 95 (on rule 28) and p. 100 (on rule 29) holds that authorisation and recognition remain a precondition for displaying the distinctive emblem. 220 Kleffner (2008), p. 346.

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broader definitions of, in particular, ‘medical personnel’ could be exploited by foreign forces to intervene in NIACs.221 While undoubtedly important, in many low-income countries such (restricted) protection might be less appropriate for guaranteeing minimal health care for conflict-affected populations.222 A functioning health system built of these nationally recognised and authorised medical personnel, units and transports may not (yet) exist. In these settings, the protection of (international) medical personnel and medical units of international humanitarian organisations, as well as the promotion and facilitation of these organisations’ activities become more important for providing the minimum health services described in part 4.223 While the simultaneous applicability of the right to health will not give foreign medical personnel, units or transports of international humanitarian organisations the right to display the distinctive emblem, the more pro-active obligations to facilitate their work that were discussed above will extend to them.224 It can also be argued that this includes an obligation on states affected by NIACs to speed up the process of recognising foreign medical qualifications to ensure that the civilian population can get access to basic health care under their minimum core right to health.225 This should not exclude that states set up mechanisms to monitor foreign medical interventions to prevent that conflict-affected populations are exposed to the danger of unskilled or inappropriate treatment.226 Moreover, medical personnel deployed by international humanitarian organisations are protected under Art. 10 AP II,227 as humanitarian relief personnel228 and by their status as civilians. 221 However, it shall be noted that the recognition requirement also aims to prevent exploitation of the distinctive emblem, as is noted in the ICRC Commentary (AP I/II) on Art. 9 AP II, para. 4660; see also the commentary on rule 25 ICRC Study, Vol I, p. 82; and Kleffner (2008), p. 345. 222 This is not to say that it is of no relevance, since IHL protects all kind of health facilities, including primary care points at community level which might exist in poor countries. 223 See also chapter VIII, part 3. 224 On this see also Mackintosh (2007). 225 See also the discussion by Fisher (2007), pp. 363–364; and IFRC, Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance, 30 November 2007, which suggest states to adopt procedures that allow for temporary recognition of foreign medical personnel in Section 16, para. 1(c). 226 For examples see Fisher (2007), p. 363. 227 See above, section 5.3. 228 See chapter VIII, section 3.1. However, international humanitarian relief personnel have to be authorised as well before they can profit from the special protection given to them under IHL.



mitigating the public health impact of armed conflicts235 6. Concluding Remarks

This chapter analysed some elements of states’ obligations under IHL and the right to health that aim to mitigate the direct and indirect health consequences of NIACs. In sum, relevant IHL and obligations flowing from the right to health complement each other well in this endeavour. In general terms, due to its historical origin and purpose to protect wounded and sick soldiers of standing governmental armies, IHL focuses on the protection of the wounded and sick and those civilians and persons hors de combat suffering from direct health consequences of armed conflicts. The right to health, on the other hand, is more expansive, and takes account of the fact that the relationship between health and armed conflict is not confined to medical attention to the war-wounded. The internationally-defined minimum core right to health encourages state parties to the ICESCR to prioritise the provision of primary health care through creating and maintaining an accessible basic health system. This focus enables it to highlight and address indirect health consequences of NIACs, such as the spreading of epidemic and endemic diseases and rising child and maternal mortality and morbidity. These may occur in the long-term, and are—particularly in low-income countries—the main causes of death during and after armed conflicts. Against this backdrop, the lex specialis maxim functions as a tool to promote a context-sensitive complementary application of IHL and relevant elements of the right to health. The chapter examined the shapes that the complementarity between IHL and the right to health can take in mitigating different direct and indirect health consequences of armed conflict. The question of the diversion of resources from the health budget to military spending is regulated directly by the right to health and the ICESCR’s general limitation clause only, setting both procedural and qualitative limits to such diversion. Among the likely procedural limitations are the obligation to investigate alternatives to military action that could better serve the protection of ‘general welfare’ than could engaging non-state armed groups with military force. Another obligation is to strictly adhere to the principle of non-discrimination and participation, thereby preventing some individuals or groups in society being affected disproportionately. The qualitative limit described by Art. 4 ICESCR to the diversion of resources towards military spending is that it should not touch on ‘the nature of these [ESC] rights’, i.e. respect nationally-defined minimum core rights/obligations. IHL only indirectly relates to these processes because it assumes that states will regularly command the resources that are required

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for the implementation of IHL rules on the protection of the wounded and sick. The discussion then moved to the question of the scope of health services that states are (possibly) obliged to provide under IHL and the right to health in situations of armed conflict; and examined the extent to which they address the direct and indirect health consequences of armed conflicts. Both the personal scope of application of IHL and the right to health care in armed conflicts cover everyone who is in immediate need of medical treatment. While the right to health clearly includes a right to access primary preventive, curative and rehabilitative health services for those who are not strictly speaking in immediate need, the definition of ‘wounded and sick’ in IHL does not exclude this interpretation either. In many regards, IHL can be described as more detailed when addressing the direct health consequences of NIACs. For example, the IHL obligations to ‘respect and protect’ as well as ‘search and collect’ the ‘wounded and sick’ give welcome details on how to implement the right to access minimum health facilities, goods and services in an armed conflict context. IHL obliges states to immediately provide emergency medical treatment to the wounded and sick. It is, however, not entirely clear whether access to emergency medical treatment involving specialised surgical care is an element of the emerging internationally-defined minimum core right to health that is to be implemented as a matter of priority, including in armed conflicts. Both the right to health and IHL establish obligations to provide longerterm care/rehabilitation to those suffering from direct health consequences of NIACs (physical disabilities, psychological problems, etc.). This obligation is clearly expressed in Art. 5 CCM which is based on IHL as well as on the ICESCR. This obligation is subject to progressive realisation, taking account of the fact that its implementation will require substantial resources. With regard to the indirect health consequences of armed conflicts, it is primarily the minimum core right to health that obliges states to address these consequences effectively. The example of epidemic diseases showed that the focus of the minimum core right to health to ‘prevent, treat and control epidemic and endemic diseases’ and to prioritise immunisation promises to effectively address this often immense public health consequence of armed conflict. The minimum core right to health gives substantial flexibility to states to adopt the measures required to address the specific indirect health problems in a particular situation, which can vary



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substantially. In particular the human rights principles of non-discrimination and the concentration on disadvantaged and marginalised groups can guide this process. Consultation with public health professionals is equally essential for pinpointing the exact measures that are to be taken to implement minimum core obligations under the right to health in NIACs. The protection offered to medical personnel, facilities and transports under IHL and the right to health were also discussed. The detailed definitions of these entities given in IHL can be regarded as a welcome specification of the components of a well-developed health system that states have to create under minimum core and non-core obligations flowing from the right to health. On the other hand, obligations under the right to health can compensate for uncertainties in the scope of the more ‘pro-active’ obligations to facilitate and promote the work of medical personnel, units and transports in rules 25, 28 and 29 of the ICRC Study.

CHAPTER EIGHT

HUMANITARIAN ASSISTANCE 1. Introduction In on-going NIACs, many of the obligations analysed in the previous chapter will in actual fact be implemented partly or entirely by national and international humanitarian organisations. This is particularly so in low-income countries where governments may not have sufficient resources to implement their IHL and human rights obligations aiming to mitigate the direct and indirect health consequences of armed conflicts, or where a state has lost control over parts of its territory. Humanitarian assistance regularly includes medical supplies, equipment and means of transport.1 This chapter discusses under which conditions states involved in NIACs have to request and/or accept offers of international humanitarian assistance, including medical assistance, to ensure a minimum level of well­ being of the civilian population and the wounded and sick (part 2); and what rights and obligations these states have towards international humanitarian actors to control and facilitate their work (part 3). The focus is once more on the obligations of the affected state. Based on the assumption that basic socio-economic needs of the population living in territories controlled by non-state armed groups will be met through the delivery of humanitarian assistance, the probable scope of non-state armed groups’ obligations under IHL (and possibly IHRL) towards humanitarian actors is, as far as possible, also given attention. It is assumed that non-state armed groups will regularly have the capacity to implement their obligations towards these organisations. The discussion of third states’ obligations providing assistance and the question of possible obligations of international humanitarian organisations2 are also touched upon. 1 Institute of International Law, Resolution of the Sixteenth Commission (Humanitarian Assistance), 2 September 2003, Art. 1 (1) (a) and (b), at: http://www.idi-iil.org/idiE/ resolutionsE/2003_bru_03_en.PDF [last accessed 19 September 2012]. 2 It should be noted that most (but not necessarily most strictly legal) literature and guidelines relating to humanitarian crises concentrate on the role of international aid

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2. Obligations to Request and Accept Humanitarian Assistance Under IHL, the main provision describing the conditions under which humanitarian assistance shall be provided and accepted is Art. 18(2) AP II: If the civilian population is suffering undue hardship owing to a lack of the supplies essential for its survival, such as foodstuffs and medical supplies, relief actions for the civilian population which are of an exclusively hum­ anitarian and impartial nature and which are conducted without any adverse distinction shall be undertaken subject to the consent of the High Contracting Party concerned.

In most interpretations,3 this Article has been understood as obliging states to accept offers of or seek international assistance, when a) the civilian population is suffering undue hardship threatening its survival, and b) when the assistance offered (or requested) is ‘exclusively humanitarian and impartial in nature’ and relief actions are ‘conducted without any adverse distinction’.4 Both conditions reflect states’ fear that the rules relating to the provision of humanitarian assistance by international organisations or third states could be used to support an insurgency or as pretence for any other form of unwanted foreign intervention.5 These two requirements shall be discussed further, including their relation to states’ obligations flowing from the ICESCR and in particular the right to health. 2.1. ‘Undue Hardship Threatening the Survival of Civilians’ and Obligations Flowing from the Right to Health Read in conjunction with Art. 14 AP II, prohibiting the starvation of civilians as a method of warfare as well as common Art. 3(1)(a) GC I-IV prohibiting ‘violence to life’ against persons ‘taking no active part in hostilities’ or persons hors de combat, it is clear that the threshold of ‘suffering agencies, including their potential ‘obligations’. The role and obligations of the affected states in humanitarian operations are rarely covered. See e.g. Sphere (2011), p. 21. Similarly, Code of Conduct for the International Red Cross and Red Crescent Movement and NGOs in Disaster Relief, at: http://www.ifrc.org/Docs/idrl/I259EN.pdf [last accessed 17 September 2012]; and Leader (2000); O’Callaghan and Pantuliano (2007); and Minear (2002). 3 Bothe, Partsch and Solf (1982), p. 696; ICRC Commentary (AP I/II), paras. 4885–4886; Stoffels (2004), p. 535; Moir (2002), p. 118; and Barber (2009), p. 389; MacAlister-Smith (1985), p. 31; and Plattner (1992). 4 Art. 18(2) AP II; and rule 55 ICRC Study, Vol I, p. 193. 5 Art. 18 AP II was one of the most hotly debated Articles when it was drafted, see: Bothe, Partsch and Solf (1982), p. 694; ICRC Commentary (AP I/II), para. 4870; Plattner (1992); and Moir (2002), pp. 95 and 118.



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undue hardship owing to the lack of the supplies essential for its [the civilian population’s] survival’ under Art. 18(2) AP II is met, when the refusal of relief causes starvation among the civilian population or otherwise threatens its survival.6 As pointed out by the ICRC Commentary to Art. 18(2) AP II, exactly when civilians and persons hors de combat suffer undue hardship that threatens their survival will depend on the ‘usual standard of living’ in the country concerned as well as ‘the needs provoked by the hostilities’, i.e. the number of persons seriously wounded or sick and in need of medical care.7 Rule 55 of the ICRC Customary Law Study does not directly reiterate the requirement that relief operations have to be accepted only when the survival of the civilian population is at stake, including through starvation. Unlike Art. 18(2) AP II, it refers to relief for ‘civilians in need’,8 not to a civilian population ‘suffering undue hardship owing to the lack of the supplies essential for its survival’. It is, however, not entirely clear whether this establishes an IHL obligation of states (and non-state armed groups) to accept international offers of humanitarian assistance before a refusal leads to starvation of civilians or otherwise threatens their survival. Barber9 observes correctly that the commentaries on rule 5510 as well as those on the closely related rules 31 and 32 on the customary protection of humanitarian relief personnel and objects11 may not allow this conclusion. This is also supported by the provisions of the ICC Statute that only criminalise ‘the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population’12 when committed as part of a widespread or systematic attack directed against any civilian population and by the 1994 San Remo Manual on International Law   6 ICRC Commentary (AP I/II), para. 4798. See also Barber (2009), p. 386; Stoffels (2004), pp. 519–520; Sandvik-Nylund (2003), pp. 26, 31–32; Luopajärvi (2003), p. 698; and Bothe (1989), p. 94.   7 ICRC Commentary (AP I/II), para. 4881; see also Heath (2011), p. 459.   8 Rule 55 ICRC Study, Vol I, p. 193, reads in full: ‘The parties to the conflict must allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need, which is impartial in character and conducted without any adverse distinction, subject to their right of control.’   9 Barber (2009), p. 387. 10 The commentary to rule 55 ICRC Study, Vol I, p. 197, holds, for example, that offers for relief must be accepted when the civilian population ‘lacks supplies essential to its survival’ or is ‘threatened with starvation’. 11 Commentary on rule 31 ICRC Study, Vol I, p. 105, notes that this rule is ‘a corollary to the prohibition of starvation, as well as the rule that the wounded and sick must be collected and cared for’; similarly the commentary on rule 31 ICRC Study, Vol I, p. 109. 12 Art. 7 ICC Statute defining crimes against humanity.

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Applicable to Armed Conflicts at Sea.13 Yet, most of the practice cited in Volume II of the ICRC Study, above all resolutions adopted by the UN General Assembly and the UN Security Council, suggest that humanitarian assistance has to be accepted for civilians affected by armed conflict in general, or when the civilian population is ‘in need’ of such assistance, even if its survival is not under immediate threat.14 While the ICRC Study relies on resolutions of the General Assembly and the Security Council up until the year 2000, more recent resolutions confirm this trend,15 as do the UN Secretary-General’s periodic reports on the protection of civilians in armed conflicts.16 This is also supported by IHL treaty rules that apply to occupied territories,17 by rules protecting civilians in IACs,18 and by academic literature.19 In their resolutions, the General Assembly and the Security Council do not draw any distinction between IACs and NIACs. An obligation to accept or request international assistance even if the civilian population’s survival is not instantly threatened would clearly be confirmed by the parallel applicability of the ICESCR,20 including by the components of the minimum core right to health that aim to mitigate the short- and long-term health consequences of NIACs. If states affected by NIACs are unable to implement their obligations under the right to health, in particular the national/international minimum core obligations 13 San Remo Manual (1994), para. 103. 14 See the ‘practice’ cited in the ICRC Study, Vol II, Chapter 17, Section C, paras. 361–563. Only some of the ‘practice’ requires the acceptance of humanitarian assistance only when the civilian population suffers from starvation or its survival is otherwise threatened (e.g. paras. 405, 432, 435 and 533). In particular the resolutions of the UN Security Council (paras. 440–495) regularly require the provision of humanitarian assistance to those ‘in need of assistance’ or ‘civilians affected’ by the respective conflicts; similarly see the resolutions adopted by the UN General Assembly (paras. 496–504). 15 See Barbar’s (2009) analysis of more recent UN General Assembly and UN Security Council resolutions, pp. 388–391. 16 Reports of the UN Secretary-General on the Protection of Civilians in Armed Conflict, S/1999/957, 8 September 1999, para. 51; S/2001/331, 30 March 2001, paras. 14 and 20 and recommendation 4; S/2009/277, 29 May 2009, para. 58; and S/2010/597, 11 November 2010, para. 76 and annex to the report. 17 Art. 59 GC IV reads: ‘If the whole or part of the population of an occupied territory is inadequately supplied, the Occupying Power shall agree to relief schemes on behalf of the said population …’ (emphasis added). 18 Art. 70 AP I reads: ‘If the civilian population of any territory under the control of a Party to the conflict, other than occupied territory, is not adequately provided with the supplies mentioned in Article 69 [AP I], relief actions which are humanitarian and impartial in character and conducted without any adverse distinction shall be undertaken, subject to the agreement of the Parties concerned in such relief actions.’ (emphasis added). 19 Barber (2009), p. 391; Manual on the Law on NIACs (2006), chapter 5, p. 61; DoswaldBeck (2011), pp. 481 and 488; and Heath (2011), p. 462. 20 See also Barber (2009), p. 393; and Bothe (1989), p. 95.



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discussed in chapter VII,21 they are obliged to seek international assistance to alleviate direct and indirect (long-term) public health consequences of the conflict. This is clear from the wording of Art. 2(1) ICESCR, setting out states’ obligations to ‘undertake to take steps, individually and through international assistance and cooperation,’22 to progressively realise ESC rights in accordance with the maximum available resources. The ‘available resources’ of a state are regularly understood to include resources that are available through international cooperation and assistance.23 The CESCR has restated this obligation numerous times by recommending that states seek and accept offers of international assistance and cooperation in its general comments and concluding observations,24 including in conflictand post-conflict situations.25 For instance, in its 1998 Concluding Observations on the Sri-Lankan state report the CESCR recommended ‘the Government [to] establish mechanisms to facilitate the flow of humanitarian assistance and to strictly monitor and ensure that the intended recipients actually receive the assistance’. It further urged to ‘reassess the food assistance programme already in place in affected areas with a view to improving the nutritional standards of the food provided, particularly to children and expectant and nursing mothers’.26 In its General Comment 12 on the Right to Food, the CESCR has held that ‘the prevention of access to humanitarian food aid in internal conflicts’27 amounts to a violation of the right to food. Preventing access to urgent medical care and medical supplies provided by relief agencies would  21 See in particular chapter VII, part 4. 22 Emphasis added. This obligation is reiterated in Art. 23 ICESCR. 23 See the discussion in chapter IV, part 4.5. 24 CESCR, General Comment 19 (2008), para. 41; General Comment 15 (2002), para. 18; General Comment 12 (1999), paras. 17 and 29; and e.g. CESCR, Concluding Observations— Yemen, E/C.12/YEM/CO/2 (2011), paras. 4 and 27; Turkmenistan, E/C.12/TKM/CO/1 (2011), paras. 23–24; Chad, E/C.12/TCD/CO/3 (2009), para. 26; Tajikistan, E/C.12/TJK/CO/1 (2006), paras. 63 and 74; Democratic People’s Republic of Korea, E/C.12/1/Add.95 (2003), para. 27; Solomon Islands, E/C.12/1/Add.84 (2002), paras. 4, 25–28; and Jamaica, E/C.12/1/Add.75 (2001), para. 23. 25 CECSR, General Comment 14 (2000), paras. 16 and 65; General Comment 15 (2002), para. 44(c)(v) describes the ‘failure to adopt mechanisms for emergency relief’ as a violation of the right to water. This would arguably include a failure to accept international assistance if the states’ capacities and resources are insufficient. And e.g. CESCR, Concluding Observations—Afghanistan, E/C.12/AFG/CO/2–4 (2010), para. 35; Sri Lanka, E/C.12/LKA/CO/2–4 (2010), para. 28; Israel, E/C.12/ISR/CO/3 (2011), para. 29; Nepal, E/C.12/ NPL/CO/2 (2008), para. 36; Bosnia and Herzegovina, E/C.12/BIH/CO/1 (2006), para. 48; and Sudan, E/C.12/1/Add.48 (2000), para. 37. 26 CESCR, Concluding Observations—Sri Lanka, E/C.12/1/Add.24 (1998), para. 22. 27 CESCR, General Comment 12 (1999), para. 19.

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similarly amount to a violation of the right to health. Moreover, the argument that Art. 4 ICESCR excludes limitations that touch upon the minimum core right to health is made against the background that international assistance and resources can be relied upon for the implementation of minimum core ESC rights, including for the establishment of a basic health system that provides essential primary care to everyone.28 As a corollary, the CESCR has regularly called upon third states to ‘facilitate access to essential health facilities, goods and services in other countries, wherever possible and provide the necessary aid when required’,29 in particular when the internationally-defined minimum core right to health is not realised.30 The CESCR has called these obligations ‘international obligations’, which include obligations of all state parties to the ICESCR ‘to cooperate in providing disaster relief and humanitarian assistance in times of emergency’.31 In its concluding observations the CESCR occa­ sionally commended third states providing humanitarian assistance to countries affected by armed conflict;32 and generally requires developed countries to spend at least 0.7% of their GDP on international deve­ lopment cooperation.33 However, the character and scope of these ‘international obligations’ remains subject to considerable debate.34 For the present context, it is sufficient to observe that international organisations, above all the ICRC, and third states are undoubtedly permitted to offer their impartial and humanitarian assistance to the respective authorities, and that such an offer should not be seen as an intervention into internal matters of the respective state.35 28 See also the discussion in chapter IV, section 4.3; and chapter V, sections 2.2.4 and 2.3.2. 29 CESCR, General Comment 14 (2000), para. 39. All recent General Comments adopted by the Committee contain a section setting out ‘international obligations’ flowing from the respective rights, e.g. General Comment 19 (2008), paras. 51–58; General Comment 18 (2005), paras. 29–30; General Comment 15 (2002), paras. 30–36; General Comment 13 (1999), para. 56; General Comment 12 (1999), paras. 36–37. 30 CESCR, General Comment 14 (2000), para. 45; similarly, see e.g. General Comment 19 (2008), para. 61; General Comment 15 (2002), para. 38; and CESCR, Statement on Poverty and the ICESCR, E/C.12/2001/10, 10 May 2001, para. 16; see also Riedel (2006), p. 10. 31 CESCR, General Comment 14 (2000), para. 40. 32 CESCR, Concluding Observations—Australia, E/C.12/1/Add.50 (2000), para. 7: ‘The State party’s leadership role in maintaining peace and stability in the region is appreciated, inter alia by providing economic and humanitarian assistance, particularly in East Timor.’ 33 To name but a few examples, see e.g.: CESCR, Concluding Observations—Germany, E/C.12/DEU/CO/5 (2011), para. 33; Sweden, E/C.12/SWE/CO/5 (2008), para. 11; Norway, E/C.12/1/Add.109 (2005), para. 3; and Italy, E/C.12/1/Add.103 (2004), para. 15. 34 See the discussion in chapter IV, part 4.3.1. 35 This is clear from common Art. 3(2) GC I-IV: ‘… An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict. …’; see also Stoffels (2004), pp. 533–534.



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As far as non-state armed groups are concerned, there are no reasons not to assume that even relatively weaker non-state armed groups are bound by the mentioned IHL provisions to consent to international relief operations if such operations are conducted for the benefit of ‘civilians in need’ in territories under their control. This is supported by the practice cited in the ICRC Study on its rule 55.36 There are also indications from materials directly emanating from some non-state armed groups37 that these groups recognise the importance of allowing relief operations to be conducted in the territories in which they operate.38 In contrast to the obligations of states, non-state armed groups’ obligations will primarily flow from IHL. While states’ obligations to provide humanitarian assistance extend to the entire population, non-state armed groups are only bound to provide aid to people under their control, inter alia by giving international humanitarian organisations access to the respective territory.39 2.2. ‘Humanitarian and Impartial Assistance, Conducted without Any Adverse Distinction’ and Obligations Flowing from the Right to Health The second condition to be met under IHL to trigger a state’s obligation to accept international assistance is that this assistance must be ‘exclusively humanitarian and impartial in nature’ and ‘conducted without any adverse distinction’. This is clear from Art. 18(2) AP II as well as the slightly

36 See particularly the resolutions of the UN Security Council and the UN General Assembly cited in ICRC Study, Vol II, p. 1189–1202 (paras. 440–521), and several agreements involving non-state armed groups, p. 1177 (paras. 369 and 370), p. 1178 (para. 377) and p. 1209 (para. 561). 37 E.g. non-state armed groups’ unilateral declarations, ad hoc agreements between non-state armed groups and states or international organisations, non-state armed groups’ ‘legislation’ and codes of conducts; for more details see Sivakumaran (2011a). 38 See e.g. the ‘Code of War’ of the National Liberation Army (ELN) (Colombia), reprinted in (2011) 93 IRRC 483, p. 491, referring to the protection of vehicles and facilities bearing the Red Cross emblem; as well as responses by various non-state actors to Geneva Call’s questionnaire on perspectives of armed non-state actors on the protection of children from the effects of armed conflict (Geneva Call, 2010), pp. 11–12 (Abkhazia, Georgia), p. 13 (2 Armée populaire pour la restauration de la République et la démocratie (APRD), Central African Republic), p. 19 (Justice and Equality Movement (JEM), Sudan), pp. 23–24 (Karen National Union (KNU), Myanmar), p. 29 (Polisario Front, Western Saharah) and p. 30 (Somaliland), at: http://www.genevacall.org/resources/research/f-research/2001–2010/ 2010 _GC_CANSA_InTheirWords.pdf [last accessed 17 September 2012]. This document relates mainly to issues of child protection. It shows, however, that non-state armed groups are willing to let international organisations (governmental and non-governmental) operate in territories under their control. 39 See the observations by Stoffels (2004), p. 520.

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different wording of rule 55 ICRC Study which refers to ‘humanitarian relief for civilians in need, which is impartial in character and conducted without any adverse distinction’.40 In the following, an attempt is made to shed more light on the notion of ‘humanitarian’ and ‘impartial’ assistance that is ‘conducted without adverse distinction’; and the relationship of these requirements to obligations and principles flowing from the right to health. 2.2.1. ‘Humanitarian’ Assistance in IHL and under the Right to Health The terms ‘humanitarian’ and ‘impartial’ are not directly defined in IHL.41 In his commentary to the Geneva Conventions, Pictet held in 1958 that ‘humanitarian’ means being ‘concerned with the condition of man, considered solely as a human being, regardless of his [her] value as a military, political, professional or other unit’.42 This is further confirmed with the first principle of the Red Cross/Red Crescent43—the principle of humanity—describing the aim of the Movement’s activities ‘to prevent and alleviate human suffering wherever it may be found’.44 This may suggest that assistance offered by third states or international organisations can only be considered ‘humanitarian’ when it is provided equally to all affected civilians of both parties to the conflict.45 In its Nicaragua judgement, the ICJ made a statement pointing towards such an understanding:

40 Rule 55 ICRC Study, Vol I, p. 193; see also Stoffels (2004), p. 539.  41 MacAlister-Smith (1989), p. 103. 42 ICRC Commentary (GC I-IV) on Art. 10 GC IV, p. 96; and ICRC Commentary (AP I/II), para. 2798. 43 The seven Fundamental Principles bind together the National Red Cross and Red Crescent Societies, the ICRC and the International Federation of the Red Cross and Red Crescent Societies. They were proclaimed in 1965 by the International Conference of the Red Cross and Red Crescent. Despite not being prescribed in the GCs and APs, these principles are recognised and given a certain status in IHL, as the GCs and AP I refer to the principles as governing the activities of the Red Cross/Red Crescent in several places (see e.g. Art. 63 GC IV and Art. 18(2) and (3) AP I). 44 The seven fundamental Principles of the Red Cross/Red Crescent are available at: http://www.icrc.org/eng/assets/files/other/icrc_002_0513.pdf [last accessed 17 September 2012]; see also Pictet (1979); and ICJ, Nicaragua Judgment, para. 242. The reference to the Red Cross/Crescent principles do not, however, suggest that only assistance provided by the Red Cross/Crescent Movement has to display the qualities of ‘impartial’ and ‘humanitarian’ assistance. The law clearly intends that all relief operations provided are ‘impartial’ and ‘humanitarian’. On this see also MacAlister-Smith (1989), p. 103; and Stoffels (2004), p. 540. 45 This question is posed by Plattner (1992).



humanitarian assistance247 An essential feature of truly humanitarian aid is that it is given “without discrimination” of any kind. In the view of the Court, if the provision of “humanitarian assistance” is to escape condemnation as an intervention in the internal affairs of Nicaragua, not only must it be limited to the purposes hallowed in the practice of the Red Cross, namely “to prevent and alle­ viate  human suffering”…; it must also, and above all, be given without discrimination to all in need in Nicaragua, not merely to the contras and their dependents.46

However, this seems in line neither with state practice nor with the practice of international governmental and non-governmental organisations, which frequently provide humanitarian assistance to civilians and persons hors de combat of only one party to the conflict.47 This is also recognised by the ICRC Commentary, noting that IHL does not exclude ‘unilateral actions undertaken for the benefit of only one Party to the conflict’ as these may be prompted by ‘traditional links, or even the geographical situation’;48 and by academic commentators.49 If, for example, one area affected by conflict cannot be reached for political, geographical or any other reason, this shall not preclude the delivery of assistance to accessible areas. Moreover, the requirement that assistance is ‘humanitarian’ first and foremost aims ‘to avoid deception, that is to say, using the relief action for other purposes’,50 for instance for the benefit of combatants or when it provides any other military support to one of the parties to the conflict.51 Obligations under the right to health will not add much to this debate. As mentioned above, one of the open questions concerning international obligations flowing from the ICESCR remains the lack of criteria that guide high-income states in their decision as to which low-income country to support in the implementation of ESC rights.52 The only indication is the affected state’s incapacity to implement the different elements of minimum core obligations, which may in fact be most prevalent in rebel-held territories. Moreover, from the discussion in chapter VII it can be inferred that states affected by armed conflicts should encourage 46 ICJ, Nicaragua Judgment, para. 243. 47 See the observations by Mackintosh (2000), p. 7. 48 ICRC Commentary (AP I/II), para. 2803. While this commentary refers to Art. 70 AP I applicable to IACs, there is no reason for assuming that the understanding of ‘humanitarian’ should be different in NIACs. The ICRC Commentary (AP I/II), para. 4882, on Art. 18(2) AP II thus also refers the reader to its comments on Art. 70 AP I. 49 See e.g. Kalshoven (1989b), pp. 518–519; and Stoffels (2004), p. 541. 50 ICRC Commentary (AP I/II) on Art. 70 AP I, para. 2798. 51 Stoffels (2004), pp. 540 and 543 with examples. 52 See chapter IV, part 4.3.1.

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international humanitarian actors to address those direct and indirect health consequences of the armed conflict that are most urgent and widespread and cannot be countered by the affected government (or non-state armed group) itself.53 2.2.2. ‘Impartial’ Assistance ‘Conducted without Any Adverse Distinction’ in IHL and the Right to Health In IHL, the notion of ‘impartial’ is described by three interrelated elements: non-discrimination, proportionality and the requirement that there should be no subjective distinctions.54 a) Non-Discrimination The element of non-discrimination requires the absence of ‘any adverse distinction founded on race, colour, religion and faith, sex, birth or wealth, or any other similar criteria’55 in the provision of humanitarian assistance, reinforced by the wording of Art. 18(2) AP II that relief actions shall be ‘conducted without any adverse distinction’. As under IHRL, the IHLelement of non-discrimination does not require that those who provide humanitarian assistance treat everyone in exactly the same way.56 Taking account of given differences between people in relief actions, or carrying out relief operations for the benefit of children, the disabled or the elderly57 is compatible with the principle of non-discrimination and thus the IHL notion of ‘impartiality’ that should characterise humanitarian assistance.58 This is strengthened by the parallel applicable human rights

53 See chapter VII, particularly section 4.2 and 4.3. 54 ICRC Commentary (AP I/II), para. 2801; Pictet (1079); Mackintosh (2000), p. 8; Stoffels (2004), p. 540; Luopajärvi (2003), pp. 687 and 690; Plattner (1992); and Ranganathan (2006– 07), p. 201. 55 These examples of prohibited adverse distinctions under IHL are listed in common Art. 3(1) GC I-IV. See also Pictet (1979), ibid. 56 This is clearly formulated in the ICRC Commentary (GC I-IV) on Art. 27(3) GC IV, p. 206: ‘A prohibition of discrimination does not mean that all differentiation is forbidden. That is clear from the qualified character of the wording, which only excludes differences when they are of an adverse nature. Equality might easily become injustice if it was applied to situations which were essentially unequal, without taking into account such circumstances as the state of health, age and sex of the protected persons concerned. It is in this way that the principle of equality is understood in the Convention.’ See also Doswald-Beck (2011), p. 503. 57 As envisaged e.g. by Arts. 23–24, 38(5) and 50, Art. 70(1) AP I and rule 135 ICRC Study, Vol I, p. 479, in relation to children; and Arts. 16, 30, 45, 49 and 110 GC III, Arts. 16–17, and 127 GC IV and rule 138 ICRC Study, Vol I, p. 489, in relation to the elderly, disabled and infirm. 58 See ICRC Commentary (AP I/II), para. 2803; ICRC Commentary (AP I/II), para. 4882; and Stoffels (2004), p. 541.



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principles of non-discrimination and equality that aim to eliminate formal as well as substantive discrimination;59 and the principle that priority attention should be paid to disadvantaged and marginalised groups in the implementation of the right to health and other ESC rights.60 b) Proportionality The second element characterising the notion of ‘impartial’ assistance under IHL—the element of proportionality—is very much related to the notion of non-discrimination and confirms that not all civilians/persons hors de combat have to be treated in the same way: it requires that assistance has to be afforded in accordance with need alone, giving priority to the most urgent cases of distress.61 For the administration of medical treatment, this would mean that ‘only urgent medical reasons will authorise priority in the order of treatment’.62 This sits well with states’ obligations under the ICESCR to concentrate on the implementation of minimum core rights of particularly marginalised or disadvantaged groups and individuals. Persons suffering from the direct or indirect health consequences of armed conflicts can be seen as marginalised groups who require priority attention under the right to health in the particular situation of an armed conflict. Bringing a right-to-health perspective into the understanding of the IHL element of proportionality in the context of humanitarian assistance also highlights that alleviating and preventing severe health consequences of armed conflicts does not necessarily call on those providing assistance to strictly prioritise treating those seriously wounded and injured. In accordance with what has been discussed in chapter VII,63 basic public health interventions should also be conducted to alleviate the considerable long-term health consequences of NIACs. The realities on the ground as well as the existing capacities of the affected state (and non-state armed group) will determine what exactly 59 CESCR, General Comment 20 (2009), para. 8 (a) and (b); see also e.g. De Schutter (2010), pp. 561–680; and Ssenyonjo (2009), pp. 84–97. For more details specifically as to how the parallel applicability of IHRL to armed conflict situations can contribute to the promotion of gender equality in conflict affected countries see Doswald-Beck (2011), pp. 502–508. 60 See e.g. CESCR, General Comment 14 (2000), para. 43(a); General Comment 12 (1999), para. 38 and General Comment 15 (2002), para. 16; and the discussion in chapter VII, part 4.2.1. 61 ICRC Commentary (AP I/II), para. 2801; Pictet (1979); Stoffels (2004), p. 540; and Ranganathan (2006–07), p. 203. 62 Pictet (1979); and Stoffels (2004), p. 540. 63 See in particular chapter VII, section 4.3.

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those providing assistance have to concentrate on to conform to the proportionality element of the IHL impartiality requirement and obligations flowing from the right to health. For example, if the affected state has established a strong basic health system for the provision of primary health care at community level, and this system remains largely intact despite the hostilities, humanitarian organisations and third states providing assistance would probably be required to focus on the provision of expanded clinical services including definitive trauma and surgical services, or mental health care. In other situations, army hospital units may be present that would be able to treat wounded combatants and civilians, but are ill-equipped to treat civilians suffering from malnutrition, infectious diseases and the consequences of physical or sexual abuse. In this situation, humanitarian organisations would be required to concentrate on the latter. In still other situations, different priorities may be indicated. Taking into account obligations under IHL as well as the right to health would ideally ensure that those international relief actions are authorised,64 that do not duplicate health services that are provided by the health system operated in the affected state (or in territories held by nonstate armed groups), but that fill the gaps in the services provided. This would be in line with the idea that assistance delivered by external actors should be complementary to the services provided by the state, a nonstate armed group or other national actors operating in the respective territories. The assistance should not create long-term dependencies, but ideally lay the foundations for the development of a comprehensive health system and/or sustainable access to adequate food, housing, education, etc.65 c) No Subjective Distinction The third and last element describing the notion of ‘impartiality’ in IHL is that there should be no subjective distinctions, i.e. that international humanitarian personnel should not make judgements on who is good or bad, guilty or innocent etc. and hence deserving or not deserving assistance.66 Once more, need should be the only basis for prioritising the provision of assistance to certain civilians or persons hors de combat suffering from direct and indirect health consequences of armed conflicts.

64 The authorisation requirement is discussed further below, part 3; see also chapter VII, section 5.4. 65 See e.g. Sandvik-Nylund (2003), p. 28; and ICRC Commentary (AP I/II), para. 4878. 66 Pictet (1979).



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This would be similar under human rights law, as the minimum core right to health is held by everyone, including those who have been found guilty of having committed a crime, and those who live in territories under the control of non-state armed groups.67 Much discussed but unsolved dilemmas may nonetheless occur for international humanitarian actors with the application of this element of the impartiality requirement when assistance provided to certain victims threatens to fuel a conflict and/or the commission of violations of human rights and/or IHL.68 This discussion is also related to the function of the principle of neutrality in humanitarian action, and its utility to alleviate human suffering in times of armed conflict.69 By their statutes, the ICRC as well as National Red Cross/Red Crescent Societies are required to be neutral.70 The principle of neutrality is the fourth of the seven fundamental principles of the Red Cross and Red Crescent. In the definition offered by the Red Cross/Red Crescent Movement, neutrality demands that humanitarian actors do ‘not take sides in hostilities or engage at any time in controversies of a political, racial, religious or ideological nature’.71 Neutrality derives from the principle of impartiality.72 Accepting the parallel application of IHL and IHRL would mean that human rights principles should guide the delivery of humanitarian assistance in addition to the IHL principle of impartiality and the derived principle of neutrality. Between these IHL principles and some human rights principles tensions may occur, at least at first sight. For example, the aim of the IHRL principle of accountability to hold those who are committing violations of IHL and IHRL to account, and the resulting strategy of many human rights actors to openly criticise those violators, may conflict with the principle of neutrality. Tensions may moreover arise between on the one hand the aim of many human rights actors to develop the capacity 67 To recall, limitations to the right to health under Art. 4 ICESCR are only permitted for the ‘promotion of general welfare’. See the discussion in chapter V, parts 2.2.1 and 2.3.1. 68 For more details, including examples, see among others Mackintosh (2000), p. 11; Terry (2002); Ranganathan (2006–07), p. 204; and Sandvik-Nylund (2003), p. 146–147. 69 For the details of the on-going debate on humanitarianism see e.g. Rieff (2002), p. 314; Minear (2002); and Slim (2000). 70 Statutes of the International Red Cross and Red Crescent Movement as adopted by the 25th International Conference of the Red Cross at Geneva in 1986, amended in 1995 and 2006. See in particular the preamble, Arts. 4(4) and (10), 5(2)(d) and 6(4), at: http://www .icrc.org/eng/assets/files/other/statutes-en-a5.pdf [last accessed 17 September 2012]. 71 See the fourth of the Seven Fundamental Principles of the Red Cross and Red Crescent (1965). 72 Pictet (1979); Pfanner (2005), p. 171; and Ranganathan (2006–07), pp. 216–217.

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of states and other local actors to implement their human rights obligations, to address the root causes of armed conflicts and their more general attempts to bridge the gap between humanitarian and development work, and on the other hand the principle of neutrality.73 In this context, it shall first be noted that there is no legal requirement in IHL that humanitarian organisations or states offering to provide humanitarian assistance have to be neutral.74 The only legal requirements in IHL are that assistance is ‘humanitarian’ and ‘impartial’.75 Neither the GCs, nor the APs, nor the ICRC Customary Law Study contain explicit references to the principle of neutrality.76 Nor did the ICJ in its Nicaragua judgment require that international assistance should be neutral. The protection of IHL thus also extends to humanitarian assistance that is not provided strictly in accordance with the seven Red Cross/Red Crescent principles. It can include operations that are guided by human rights principles, that lead to a more political role of organisations and that require more than immediate relief work—as long as these operations can be characterised ‘humanitarian’ and ‘impartial’.77 Even Pictet has noted in 1979 in his commentary to the fundamental Red Cross/Red Crescent principle of humanity, that humanitarian engagement understood in the IHL context does not exclude commitment to justice and long-term engagement: Modern humanitarianism is an advanced and rational form of charity and justice. It is not only directed to fighting against the suffering of a given moment and to helping particular individuals, for it also has more positive 73 See e.g. Ranganathan (2006–07), pp. 209–210 and 213; Mackintosh (2007), p. 128; and Klappe (2008), p. 651, referring to the ‘humanitarian dilemma’ and the ‘human rights dilemma’ of UN peace operations. 74 ICRC Commentary (GC I-IV), p. 97, holding that ‘the Convention does not require the organisation to be neutral’; Bothe, Partsch and Solf (1982), p. 498; see also Mackintosh (2007), p. 8; Pfanner (2005), p. 171; and Ranganathan (2006–07), p. 221. For a different opinion see Stoffels (2004), pp. 542–544. 75 MacAlister-Smith (1989), p. 103; Ranganathan (2006–07), p. 219; and Thürer (2007), pp. 56–58. 76 However, Mackintosh (2007) notes that e.g. Art. 23 GC IV applicable to IACs contains certain expressions of the basic features of the principle of neutrality. It requires parties to the GCs to permit free passage of certain goods through their territory intended for civilians of another party to the conflict. Passage must, however, only be authorised when there are ‘no serious reasons for fearing … c) that a definite advantage may accrue to the military efforts or the economy of the enemy through the substitution of the … consignments for goods which would otherwise be provided or produced by the enemy or through the release of such material, services or facilities as would otherwise be required for the production of such goods.’ 77 Ranganathan (2006–07), pp. 218–221 and 232.



humanitarian assistance253 aims, designed to attain the greatest possible measure of happiness for the greatest number of people. In addition, humanitarianism does not only act to cure but also to prevent suffering, to fight against evils, even over a long term of time.78

Second, even for the ICRC the principle of neutrality is primarily an operational principle that derives from the essential principles of humanity and impartiality.79 The ICRC considers adhering to the principle of neutrality not an end in itself but as an essential means to maintain the trust of all parties to a conflict which is a precondition for accessing all victims in need in often highly politicised conflict environments.80 For the ICRC, neutrality thus does not have a ‘passive connotation of doing nothing’81 or ignoring the political context of the conflict situation in which it operates. By following this principle the ICRC aims to carve out a ‘humanitarian space’ through engagement with all parties to the conflict in order to reach and assist as many victims as possible. To conclude, IHL protects all impartial humanitarian assistance. The notion of ‘impartiality’ primarily aims to ensure that the equality of the victims of the conflict is recognised, that assistance is allocated in accordance with need, and that the humanitarian agenda is not used for ends other than the prevention and alleviation of suffering. It could further be argued that an indirect consequence of accepting the parallel application of IHL and the ICESCR would be that the people affected by conflicts have a right to rights-based humanitarian assistance. The practical implications of such a right for the engagement and decision-making processes of humanitarian organisations operating in highly-politicised situations of NIACs would need to be clarified further.82 2.3. A Few more Observations on States’ Obligations to Consent to Relief Actions If the conditions described in section 2.1 are met and the assistance offered fulfils the criteria examined in section 2.2, states are obliged to give their 78 Pictet (1979), (emphasis added). 79 Pictet (1979); Pfanner (2005), p. 171; and Ranganathan (2006–07), pp. 216–217. 80 Pfanner (2005), p. 172. For a more comprehensive examination of the principle of neutrality as understood and applied by the ICRC see also Plattner (1996); Rieffer-Flanagan (2009); Minear (1999); and Pictet (1979). 81 Pfanner (2005), p. 172. 82 See Ranganathan (2006–07), pp. 227–232 for an initial discussion. The use of the Sphere Charter (2011) by states and humanitarian organisations could for example be analysed. The Sphere Charter claims to be based on IHRL and IHL, and promotes a rightsbased approach to humanitarian action.

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consent to the conduct of relief operations for the benefit of affected civilians and persons hors de combat.83 Many commentators thus note that the states in question do not have unlimited discretion to refuse agreement on the entry, passage and distribution of humanitarian assistance by international actors.84 This is further emphasised by the wording that relief operations ‘shall be undertaken’ in Art. 18(2) AP II that limits the right to refuse humanitarian aid; as well as states’ obligations to ensure the implementation of minimum core ESC rights at all times, if necessary through international assistance and cooperation.85 While there is a tendency in the ICRC Customary Law Study to do away with the requirement of consent in its rules 31, 32 and 55,86 this has rightly been questioned. The US government has voiced particular strong criticism of rule 31 on the question of consent.87 Criticism is mainly based on the paucity of practice proving that humanitarian relief operations can be conducted without the permission of the affected state,88 in particular in regard to practice in NIACs;89 and the practical difficulties such operations will encounter when carried out in the midst of on-going armed conflicts.90 Sandoz of the ICRC, for example, observes that ‘95 per cent or 83 Art. 18(2) AP II; this requirement can also be found in provisions relating to humanitarian assistance in IACs, e.g. Art. 70(1) AP I and Art. 10 GC IV; see also rule 55 ICRC Study, Vol I, p. 195, and the commentary on this rule, referring to numerous NIACs in which the international community has condemned the denial of access to humanitarian assistance. 84 Bothe, Partsch and Solf (1982), p. 696; ICRC Commentary (AP I/II) on Art. 18(2) AP II, paras. 4885–4886; on Art. 70 AP I, para. 2805; and ICRC Commentary (GC I-IV) on Art. 10 GC IV, p. 98; Stoffler (2004), p. 535; Moir (2002), p. 118; Mackintosh (2000), p. 11; Sandvik-Nylund (2003), p. 126; Barber (2009), pp. 385–386; Fisher (2007), p. 350; and Gasser (2008), p. 269. 85 See in particular Sandvik-Nylund (2003), pp. 126–127; and Bothe (1989), pp. 93–95. 86 Rules 31 and 32 ICRC Study, Vol I, p. 107, setting out the respect for and protection of relief personnel and objects, do not mention the criteria of consent at all, whereas rule 55 ICRC Study, Vol I, p. 193, finds that relief operations are ‘subject to (their) [the] control’ of the parties to the conflict. According to the ICRC Study, both rules are applicable to IACs and NIACs. 87 Bellinger and Haynes (2007), pp. 448–454, setting out the position of the US government. 88 Breau (2007), pp. 180–181; and Bellinger and Haynes (2007), pp. 450–451, highlighting that none of the practice cited in the ICRC Study supporting rule 31 offers an indication that the respective states rejected the role of consent. 89 Bellinger and Haynes (2007), p. 454. 90 Breau (2007), pp. 181–182; and Sandvik-Nylund (2003), pp. 129–130. This fact is also recognised in the commentary on rule 55 ICRC Study, Vol I, pp. 196–197, holding that ‘it is … self-evident that a humanitarian organisation cannot operate without the consent of the party concerned’. The 2009 and 2010 Reports of the UN Secretary-General on the Protection of Civilians in Armed Conflict, S/2009/277, 29 May 2009, annex, para. 7,



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more of humanitarian needs can be met only with the consent of … authorities’91—unless, perhaps, a large scale forceful ‘humanitarian intervention’ is undertaken in situations where gross violations of IHL and IHRL cannot otherwise be stopped.92 Obtaining consent from the government concerned is also essential to protect international humanitarian personnel operating on the affected territory.93 Against this background, sources other than the ICRC Study analysing humanitarian relief operations and related states’ practice from an IHL perspective find that ‘the main thrust of recent developments reveals a focus on limiting the right to refuse humanitarian aid rather than on eliminating the authorisation [consent] requirement’.94 This focus is inter alia due to the parallel applicability of ESC rights, which—as discussed in section 2.1 above—contributes to establishing an obligation on states to accept humanitarian and impartial assistance not only when the civilian population’s immediate survival is at stake, but also when emerging internationally-defined minimum core rights are not realised. Under the ICESCR, this obligation is valid in times of armed conflict as well as in peacetime. Further questions on the requirement for giving consent to conduct relief actions arise with regard to rebel-held territories. As revealed by Bothe et al in their analysis of the drafting history of AP II, by choosing the wording ‘High Contracting Party’ in Art. 18(2) AP II, states wished to ensure that the affected state party’s consent was a precondition for the delivery of relief to civilians in territories controlled by non-state armed groups, rather than the consent of the non-state armed group.95 As soon as the conditions mentioned above are fulfilled, such consent has to be given just as for operations conducted in the affected state’s territory that remains under its full control.96 As a matter of law, the consent of non-state armed and S/2010/597, 11 November 2010, annex, para. 3 also recognise that IHL requires the consent of the affected state. 91 Sandoz (1992). 92 As e.g. highlighted by Stoffler (2004), pp. 538–539; and initially discussed by SandvikNylund (2003), pp. 118–119 and 128–129. On the consent of non-state armed groups see further below. 93 Pfanner (2005), p. 167. 94 Stoffler (2004), p. 535. See also the other sources cited supra, ns. 87–91. 95 Bothe, Partsch and Solf (1982), p. 696; Stoffels (2004), p. 535, who also finds that this requirement is reiterated in many UN General Assembly resolutions and the practice of donor states, which rarely distribute humanitarian aid in territories controlled by nonstate armed groups without the consent of the state concerned. 96 This can be inferred from the commentary on rule 55 ICRC Study, Vol I, pp. 196–197.

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groups is not required under Art. 18(2) AP II.97 Conducting relief operations without their consent might, however, entail similar practical difficulties as the above-mentioned lack of state consent. Sometimes it may not be clear who is in control of a territory, including territories without any effective government. In these situations, the ICRC Commentary suggests that consent is to be presumed.98 Unlike the case of rebels, there is no question that third states through whose territories relief consignments have to pass can become a ‘High Contracting Party concerned’ under Art. 18(2) AP II.99 Third states’ obligations under treaty and customary law to authorise and facilitate the transit of relief consignments are therefore not questioned. States’ obligations flowing from the right to health and other ESC rights will clearly strengthen states’ obligations to consent to giving international humanitarian actors access to rebel-held territories. Under the ICESCR, states need to do their utmost to protect ESC rights of civilians living in territories under the control of non-state armed groups or another (occupying) state.100 If the government itself has lost all control over parts of its territory to non-state armed groups, encouraging, or at least not interfering with international actors delivering impartial and humanitarian assistance to civilians living in these areas is one important step for states to take towards the implementation of these civilians’ minimum core rights. In particular, this might include obligations not to interfere with humanitarian actors’ negotiations for humanitarian access to territories under the control of non-state armed groups. It would furthermore include obligations to let international actors sustain a dialogue with non-state armed groups that is necessary to establish an understanding for and acceptance of the impartial character of humanitarian assistance among these groups, to clarify operational modalities and to maintain access in the long-run.101   97 See e.g. Bothe, Partsch and Solf (1982), p. 696; Moir (2002), p. 119. Since rule 55 ICRC Study does not refer to the issue of consent, the commentary on rule 55 (Vol I, pp. 196–197) does not include any indication as to whether the consent of non-state armed groups is required for the conduct of relief operations in territories under their control.   98 ICRC Commentary (AP I/II), para. 4884; Bothe, Partsch and Solf (1982), p. 679; and Sandvik-Nylund (2003), p. 127.   99 As observed in the commentary on rule 55 ICRC Study, Vol I, pp. 198–199, this is made explicit in Art. 70(1) AP I for the context of IACs, and is equally relevant in NIACs. For a different opinion, see Sandvik-Nylund (2003), pp. 39–40. 100 See the discussion in chapter V, part 3.3 and chapter VII, part 3.1.1.   101 Sandvik-Nylund (2003), p. 128. This is also recommended in the 2010 Report of the UN Secretary-General on the Protection of Civilian in Armed Conflict, S/2010/579,



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It is easily conceivable that such activity could be commended by the CESCR in states affected by armed conflicts, in a similar manner as it commended Cyprus’ efforts ‘to provide services, such as electricity supply and payment of pension benefits, to the population living in the part of the island that it does not control’.102 Considering the inverse situation, the 2009 UN Secretary-General’s Report on the Protection of Civilians in Armed Conflict criticised Georgia for adopting a law which prohibits any humanitarian activity in South Ossetia, unless such activity is accredited by Georgia and undertaken from within Georgia; and Russia for its demands that humanitarian actors should enter South Ossetia via the Russian Federation only, with the authorisation of the South-Ossetian side.103 As far as third (neighbouring) states’ obligations to authorise and facilitate the transit of relief consignments to territories affected by armed conflicts is concerned, this obligation is also supported by the parallel applicable obligations flowing inter alia from Art. 2(1) ICESCR to cooperate towards the realisation of ESC rights. In its General Comment 14 the CESCR observed directly that ‘States parties have a joint and individual responsibility, … to cooperate in providing disaster relief and humanitarian assistance in times of emergency, including assistance to refugees and internally displaced persons. Each State should contribute to this task to the maximum of its capacities.’104 3. Obligations to Facilitate the Work of Humanitarian Organisations and the Right to Control If consent has been given to the conduct of international relief operations, states have further obligations under IHL and the ICESCR to respect and protect humanitarian relief personnel and objects; and to actively facilitate relief operations. On the other hand, they also have a right to control these operations in order to ensure that assistance provided is indeed ‘humanitarian’ and ‘impartial’. These obligations and rights are the subject of the last sections of this chapter. 11 November 2010, paras. 52–57. For a discussion of the practical challenges this entails in contemporary often highly asymmetric conflicts, see Pfanner (2005), pp. 166–73; and Stoffels (2004), pp. 335–338. 102 CESCR, Concluding Observations—Cyprus, E/C.12/1/Add.28 (1998), para. 4. 103 Report of the UN Secretary-General on the Protection of Civilians in Armed Conflict, S/2009/277, 29 May 2009, annex, para. 12. 104 CESCR, General Comment 14 (2000), para. 40.

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chapter eight 3.1. Protection of International Relief Personnel and Humanitarian Objects

Unlike in the treaty rules applicable to IACs, there are no treaty provisions on the respect for and protection of humanitarian relief personnel and relief objects for situations of NIACs.105 The ICRC Study, however, recognises customary rules applicable to NIACs that ‘humanitarian relief personnel’ and ‘objects used for humanitarian relief operations’ must be ‘respected and protected’.106 Since there is extensive practice cited in the ICRC Study on which these rules are based, including numerous resolutions of the UN Security Council from the 1990s,107 in general terms the customary status of these rules is not contested.108 There is also little reason to assume that non-state armed groups lack the capacity to implement these obligations. Valid criticism109 is only voiced on the finding of the ICRC Study that affected states do not need to give their consent (authorisation) to relief operations, i.e. that the special protection of relief personnel and objects has to be granted even if they operate without the consent of the affected state.110 The issue of consent has been discussed above and is equally relevant here.111 Moreover, it has to be noted that the ICRC Study is not entirely consistent in its approach to the question of consent, since unlike in rule 31, its rule 56 explicitly refers to an obligation of the parties to the conflict to ensure the freedom of movement of ‘authorised humanitarian relief personnel’.112 Another criticism, 105 Art. 71 AP I sets forth the obligation to respect and protect humanitarian relief personnel in IACs (see also Art. 26 GC I and Art. 25 GC II); Art. 70(4) AP I protects objects used for humanitarian relief operations. 106 Rule 31 ICRC Study, pp. 105–109 (on relief personnel) and rule 32, pp. 109–111 (on objects used for humanitarian relief operations). 107 See ICRC Study, Vol II, chapter 8, section A, pp. 593–603 and 613–623 on humanitarian relief personnel; and section B, pp. 633–637 on humanitarian objects. 108 Breau (2007), p. 182; Fisher (2007), p. 360; and Stoffels (2004), pp. 521–522. Based on her analysis of resolutions and statements of different international bodies (the UN General Assembly, the UN Security Council, the former UN Commission on Human Rights, the European Union, etc), she holds that there is a ‘general acceptance that these obligations [relating to the respect for and protection of humanitarian relief personnel] apply to all States and to all types of conflict.’ 109 As expressed clearly by the US government: Bellinger and Haynes (2007), pp. 448–454; see also Breau (2007), pp. 197–182; and Stoffels (2004), pp. 521 and 534, who, in 2004 (before the publication of the ICRC Study), found that the affected state must authorise the entry and passage of humanitarian aid for the civilian population in need. 110 See commentary on rule 31 ICRC Study, Vol I, p. 109. 111 See supra, section 2.3. 112 ICRC Study, Vol I, p. 200. In the commentary on this rule, the Study notes that ‘most practice does not mention the requirement that the rule concerns authorised



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voiced in particular by the US government, is that the ICRC Study omits the ‘obvious fact that humanitarian relief personnel who commit acts that amount to direct participation in the conflict are acting inconsistent with their mission and civilian status and thus may forfeit their protection’.113 Despite these legitimate caveats, the existence of a general rule to respect and protect humanitarian relief personnel and objects is not contested which is also confirmed by Art. 8(2)(e)(iii) ICC Statute stipulating that intentional attacks on personnel and objects involved in a humanitarian assistance mission in accordance with the UN Charter amount to a war crime, as long as these personnel and objects are entitled to the protection given to civilians and civilian objects under IHL. Moreover, an effective implementation of Art. 18(2) AP II seems illusory if no special protection is given to personnel carrying out international relief operations that allows them to act effectively for the benefit of civilians and persons hors de combat in need of assistance. The same holds true for the protection of humanitarian relief objects. But what does the ‘special’ protection of authorised relief personnel and objects entail beyond the protection that would be given to them as civilians and civilian objects? Humanitarian relief personnel and objects must be ‘respected and protected’, in a similar way as the wounded and sick, medical personnel and medical objects discussed in chapter VII.114 More specifically, the ICRC Study lists various forms of violent and nonviolent acts against relief personnel that are prohibited under the notion of ‘respect and protect’: direct attacks, harassment, intimidation, arbitrary detention, mistreatment, physical and psychological violence, murder, beatings, abduction, hostage-taking, kidnapping, etc.115 Likewise, ‘attacks against humanitarian relief objects, destruction, misappropriation and looting of such objects’ are prohibited.116 Such prohibitions are strengthened by the parallel applicability of the right to health and other ESC rights. Authorised humanitarian organisations also benefit from more ‘pro-active’ obligations of states relating to the facilitation of their work. These obligations are discussed next. humanitarian personnel, but it is self-evident that a party to a conflict cannot be required to ensure freedom of movement of an organisation it has not authorised.’ 113 Bellinger and Haynes (2007), p. 452. 114 See in particular chapter VII, part 5. 115 Rule 31 ICRC Study, Vol I, p. 108. 116 Rule 32 ICRC Study, Vol I, p. 111.

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chapter eight 3.2. Obligations Relating to the Facilitation of Humanitarian Relief Operations

While Art. 70(2) AP I directly obliges parties to the conflict to ‘facilitate rapid and unimpeded passage of all relief consignments, equipment and personnel’, there is no similar treaty provision applicable to NIACs. Art. 18(2) AP II only refers to states’ obligation to give consent to the delivery of relief when the two above-discussed conditions are met.117 Rule 55 of the ICRC Customary Law Study, however, establishes a customary obligation to ‘facilitate rapid and unimpeded passage of humanitarian relief’ applicable in IACs and NIACs.118 Rule 56 further sets out that ‘parties to the conflict must ensure the freedom of movement of authorised humanitarian relief personnel’ that is ‘essential to the exercise of their function’.119 The ICRC Study lists ample practice that supports the existence of this customary rule.120 These obligations would be further strengthened by the simultaneous application of the right to health, including by the more ‘pro-active’ minimum core obligations flowing from it,121 which are implemented with the assistance of international humanitarian actors when a state’s own resources and capacities are insufficient; as well as by Art. 12 ICCPR, protecting freedom of movement. The details of the IHL/IHRL obligation to facilitate international humani­tarian assistance will depend on the exact circumstances present in a particular conflict situation, but aim to ‘avoid any harassment, to reduce formalities as far as possible and dispense with any that are superfluous’.122 The 2009 Report of the UN Secretary-General on the Protection of Civilians in Armed Conflict contains a non-exhaustive list of suggestions as to what such an obligation could entail. It inter alia proposes that states adopt domestic legislation that ‘foresees expedited visa processing 117 Supra, sections 2.1 and 2.2. 118 The ICRC Commentary (AP I/II) on Art. 18(2) AP II, para. 4888, also suggests that the authorities’ obligation to ‘co-operate, in particular by facilitating the rapid transit of relief consignments and by ensuring the safety of convoys’ is implied in this Article. 119 Rule 56 ICRC Study, Vol I, p. 200. 120 See in particular the resolutions of various UN bodies on these issues listed in Vol II of the Study, pp. 1189–1202 and 1237–1242; Stoffels (2004), pp. 521–522; and the 2010 Report of the UN Secretary-General on the Protection of Civilians in Armed Conflicts, S/2010/57o, 11 November 2010, paras. 75–76. 121 In a similar way as discussed in chapter VII, section 5.3 concerning states’ obligations to facilitate the work of national medical personnel, medical transports and units. 122 ICRC Commentary (AP I/II) on Art. 70(2) AP I, para. 2829. This would apply similarly to the interpretation of Art. 18(2) AP II and rule 55 ICRC Study, Vol I, p. 193; see also Stoffels (2004), pp. 521–522.



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and customs clearance for relief personnel, goods and equipment; exemptions from taxes, duties and fees on relief activities; and simplified means for humanitarian organisations to acquire domestic legal personality in order to operate legally in a country.’123 The latter is related to the IHL condition that states have special obligations only towards ‘authorised’ humanitarian organisations.124 The other suggestions also reflect common obstacles that humanitarian organisations face when they wish to enter conflict-affected countries: problems with visas and internal travel regulations are numerous in NIACs, customs clearance requirements for relief consignments can delay the delivery of assistance considerably, and fees and taxes imposed on humanitarian relief can sometimes amount to large sums.125 These obstacles—in particular restrictions to freedom of movement and the imposition of ‘taxes’—are posed not only by state parties to the conflict, but also by non-state armed groups.126 Although developed for responding to natural disasters, the Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance127 developed by the International Federation of the Red Cross/Red Crescent Societies (IFRC) also include examples of what the obligation to facilitate international humanitarian assistance might include. For instance, they suggest that states promote effective coordination of international relief operations. This could, for example, be done through establishing a national focal point to liaise between international and governmental actors at all levels.128 It also 123 Reports of the UN Secretary-General on the Protection of Civilians in Armed Conflicts, S/2009/277, 29 May 2009, para. 53; and S/2010/579, 11 November 2010, annex, paras. 3–5 with references to the Memorandum of Understanding between OCHA and the World Customs Organisation in which they agreed to cooperate in establishing and promoting measures to expedite the import of relief items and equipment during emergency situations. 124 As indicated above, ns. 109–113. ‘Unauthorised’ humanitarian actors are, of course, protected by their status as civilians. However, particularly NGOs that do not gain domestic legal status are often very vulnerable, to e.g. sudden expulsion. For more details, including examples, see Fisher (2007), p. 362; and Barber (2009), pp. 377–379 concerning the situation in Darfur. 125 See Fisher (2007), pp. 356–365 for more details; and Barber (2009), pp. 377–381, on the situation in Darfur and Somalia. See also the 2010 Report of the UN Secretary-General on the Protection of Civilians in Armed Conflict, S/2010/579, 11 November 2010, paras. 5–11 with examples from numerous conflict-affected countries. 126 Fisher (2007), pp. 357 and 364. 127 IFRC, Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance, 30 November 2007. 128 Ibid., section 8, paras. 1–3; Art. 70(5) AP I also explicitly mentions that High Contract­ ing Parties ‘shall encourage and facilitate international co-ordination of … relief actions…’; see also the related ICRC Commentary (AP I/II) on this Article, paras. 2866–2869.

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suggests that affected states attempt to define the types and amounts of goods and services required to ensure a minimum level of well-being of civilians as precisely as possible so that international actors can plan their operations accordingly.129 This would be in line with the notion that humanitarian assistance provided by international actors should be supplementary to the measures taken by states themselves towards alleviating the suffering of conflict affected populations,130 and that external assistance should not duplicate local efforts or undermine local capacities.131 Efforts to coordinate the delivery of humanitarian assistance should not, however, result in undue delays that are contrary to the obligation to ‘facilitate the rapid and unimpeded passage of relief consignments to civilians in need’.132 In order to prevent this, another suggestion from the IFRC Guidelines may be relevant: the Guidelines call on states to ‘make available to assisting actors adequate information about domestic laws and regulations of particular relevance to the entry and operation of (disaster) relief or initial recovery assistance.’133 Care must also be taken that coordination efforts do not undermine the ‘humanitarian’ or ‘impartial’ character of the assistance provided in the eyes of the adverse party to the conflict, in particular when the coordinating role is assumed by the governmental party to the conflict. In this situation, it might be indicated that an international organisation, for instance a UN agency, takes on the coordination function.134 In on-going armed conflicts, the delivery of humanitarian assistance by international actors is often hampered by the intensity of hostilities. The Reports of the UN Secretary General on the protection of civilians in armed conflicts contains many recent examples from Afghanistan, the Central African Republic, Chad, Colombia, Democratic Republic of the Congo, Iraq, the Occupied Palestinian Territories, Pakistan, Somalia, Sri Lanka and Sudan.135 The IHL obligation to facilitate rapid transit of 129 This would ensure that for example medical supplies and services provided by international actors meet the health needs of civilians/persons hors de combat, and that food aid is (culturally) ‘acceptable’. 130 As indicated in the ICRC Commentary (AP I/II), para. 4878. 131 This would also be in line with the human rights principles participation and empowerment. See also the discussion above, part 2.2.2 b); and chapter VII, section 4.3.2. 132 Fisher (2007), p. 366. 133 IFRC, Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance, 30 November 2007, section 10, para. 3. 134 Fisher (2007), p. 371; and Sandvik-Nylund (2003), p. 138. 135 Reports of the UN Secretary-General on the Protection of Civilians in Armed Conflicts, S/2009/277, 29 May 2009, paras. 22–28; and S/2010/579, 11 November 2010, annex, paras. 14–20.



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relief consignments will apply equally in situations where active combat is on-going, as do the obligations under the right to health to ensure minimum essential health care at all times, if necessary through direct delivery of assistance by international actors. Measures to ensure the implementation of such obligations may include making detailed arrangements with the parties to the conflict as to the exact times at and routes on which relief is delivered. Such arrangements are suggested by the ICRC Commentary on implementing Art. 18(2) AP II,136 and would also be required to implement the obligation to search for, collect and care for the wounded and sick.137 The 2009 UN Secretary-General’s report contains a positive example in this regard: in 2007 and 2008 UNICEF and the WHO managed to obtain agreement from the international forces present in Afghanistan as well as the non-state armed groups involved in hostilities to undertake polio vaccinations on designated days of tranquillity.138 Another prominent example is the agreements that UNICEF concluded with the Sudanese government and two main rebel movements as part of the Operation Lifeline Sudan in the 1990s. The agreements set out the humanitarian principles for the delivery of assistance as well as the modalities of the relief operations.139 Such arrangements presuppose that the state party to a conflict allows international humanitarian actors to negotiate access with non-state armed groups.140 In other situations, humanitarian access might be impeded because of destroyed, insufficient or even non-existing infrastructure. This problem links the obligation to facilitate the delivery of humanitarian assistance back to the discussion in chapter VI. There it was argued that extensive destruction of roads, bridges, airfields and other elements of infrastructure must be described as disproportionate under IHL and IHRL when such destruction results in the impossibility of delivering essential humanitarian assistance.141 Moreover, in particular under the elements of minimum core obligations of a more ‘positive’ and ‘pro-active’ character, 136 ICRC Commentary (AP I/II), para. 4887. 137 As discussed in chapter VII, section 4.2. 138 Reports of the UN Secretary-General on the Protection of Civilians in Armed Conflicts, S/2009/277, 29 May 2009, para. 59; and S/2010/579, 11 November 2010, para. 76 and annex, para. 20. 139 For more details, including references to the relevant agreements concluded see Sandvik-Nylund (2003), pp. 51 and 129–130. 140 See also above, section 2.3. 141 See the discussion in chapter VI, section 5.2; see also the Report of the UN SecretaryGeneral on the Protection of Civilians in Armed Conflict, S/2010/579, 11 November 2010, para. 49.

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it could be argued that states have to make every effort to (re)build rudimentary infrastructure that is necessary for the delivery of humanitarian assistance as a matter of priority. This would be especially relevant in situations where the conflict has entered a quieter phase or moved geographic location. It would include an obligation to allocate sufficient resources to the implementation of such an obligation, in line with the priority that is to be given to the implementation of emerging internationally-defined minimum core obligations under the ICESCR. Such measures are, among others, also suggested in the Report of the UN Secretary-General on the Protection of Civilians in Armed Conflict, holding that ‘basic measures as rebuilding roads and bridges, pre-positioning stocks and ensuring the availability of affordable air services can help to establish more consistent [humanitarian] access’.142 As far as the obligations of non-state armed groups are concerned, their capacities raise few reasons for these groups not to be bound by the general IHL obligation to facilitate the passage and distribution of relief to civilians in need; and there are indications that non-state armed groups are frequently willing to allow for this.143 However, like in other areas of IHL applicable to NIACs, questions remain as to whether nonstate armed groups can ‘authorise’ international relief personnel and enact ‘legislation’ towards this end as well as on the modalities for the distribution of humanitarian assistance. 3.3. Rights to Control the Delivery of Humanitarian Assistance Statutory as well as customary IHL rules on international humanitarian relief operations stipulate the rights of the parties to the conflict to control the delivery of humanitarian assistance.144 This will, inter alia, entail a right to search relief supplies, to supervise their distribution, and to prescribe when and on which routes relief can be delivered.145 The purpose of states’ right to control in IHL is to enable them to make sure that assistance is truly ‘humanitarian’ and ‘impartial’: i.e. that the assistance 142 Report of the UN Secretary-General on the Protection of Civilians in Armed Conflict, S/2009/277, 29 May 2009, para. 49. 143 Geneva Call, ‘In Their Words: Perspectives of Armed Non-State Actors on the Protection of Children from the Effects of Armed Conflict’ (2010). 144 Rule 55, ICRC Study, Vol I, pp. 193 and 197; and ICRC Commentary (AP I/II), para. 4889. See also Art. 23 GC IV and Art. 71(3) AP I applicable to IACs; and the discussion by Stoffels (2004), p. 539. 145 ICRC Commentary (AP I/II) on Art. 18(2) AP II paras. 4887 and 4889; and on Art. 70(3), para. 2831; rule 55, ICRC Study, Vol I, pp. 197–198.



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provided does not end up in the hands of members of non-state armed groups who actively participate in hostilities, or government soldiers. Under the right to health and other ESC rights states will also have a right and even duty to control the quality of humanitarian assistance, including of medical supplies and food items. As was set out in chapter IV, one of the elements describing the goods and services to be provided under the right to health is their quality.146 General Comment 14 holds that ‘health facilities, goods and services must … be scientifically and medically appropriate and of good quality. This requires, inter alia, skilled medical personnel, scientifically approved and unexpired drugs and hospital equipment …’.147 Thus, even in situations of armed conflicts where medical services and goods are provided by international humanitarian organisations, as far as possible states have to ensure that these services are of good quality and can take measures to achieve this. Neither the right to control whether humanitarian assistance is truly ‘humanitarian’ and ‘impartial’ under IHL, nor the right to monitor whether supplies are of good quality shall, however, disproportionately interfere with states’ other obligations under IHL and IHRL. States have to ensure and facilitate the rapid and unimpeded passage and delivery of humanitarian assistance to civilians in need,148 i.e. to civilians whose minimum core right to health the respective state is unable to fulfil by relying on its own resources and capacities.149 Disproportionate interferences would arguably be ruled out equally by states’ obligations under the ICESCR, the ICCPR and rule 56 of the ICRC Study. Under Art. 4 ICESCR states cannot restrict ESC rights beyond what is required to ‘promote general welfare’. The obligation to restrict freedom of movement of humanitarian actors under the ICCPR is permitted only in accordance with the build-in limitation clause of Art. 12(3) ICCPR for reasons of ‘public order’. Derogatory measures under Art. 4 ICCPR are allowed only if the situation constitutes a threat to the life of the nation, and have to be limited to the extent ‘strictly required by the exigencies of the situation’ in their duration, geographical coverage and material scope.150 Even the limitation that is permitted by rule 56 ICRC Study only allows for the temporary restriction of the freedom of movement of humanitarian relief personnel ‘in case of 146 See chapter IV, section 5.4. 147 CESCR, General Comment 14 (2000), para. 12(d). 148 ICRC Commentary (AP I/II) on Art. 18(2), para. 4888; and on Art. 70 AP I, para. 2831; and rule 55 ICRC Study, Vol I, p. 197–198. 149 See e.g. CESCR, General Comment 14 (2000), para. 19. 150 HRCttee, General Comment 29 (2001), paras. 3 and 4.

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imperative military necessity’.151 Because of the latter’s allowance solely for restrictions that are limited in time, it is unlikely that there are many situations in which restrictions to the delivery of humanitarian assistance are unlawful under the ICESCR and the ICCPR but lawful under IHL. To name but one example, the extensive ‘back-to-back’ truck offloading systems operated by Israel in the Occupied Palestinian Territories in 2003 that required trucks to be off-loaded on one side of a checkpoint and reloaded onto another truck on the other side, causing huge delays in the delivery of humanitarian food aid and goods, producing a humanitarian crisis, cannot be considered as necessary (proportionate) under any of the three mentioned limitation clauses. This, and other security measures imposed by the Israeli army in the Occupied Palestinian Territories were described as a violation of the right to freedom of movement as well as of the right to food by the UN Special Rapporteur on the Right to Food, supposedly because the measures were not in conformity with the principle of proportionality that must be followed under Art. 12(3) ICCPR as well as under Art. 4 ICESCR.152 Moreover, these measures did not conform to the obligation to facilitate the unimpeded delivery of humanitarian assistance under IHL as the restrictions were not temporarily imposed for reasons of ‘imperative military necessity’.153 Similar effects of comparable security measures, for instance the operation of checkpoints, have been reported from other countries affected by armed conflicts, among them Somalia154 and Sri Lanka.155 151 Rule 56 ICRC Study, Vol I, pp. 200 and 202; see also ICJ, Wall Opinion, paras. 127–137 where the ICJ found that the building of the wall in the Occupied Palestinian Territories violated Art. 12(3) ICCPR, Art. 4 ICESCR and Art. 53 GC IV (allowing for the destruction of property in occupied territories in exceptional circumstances, where such destruction is rendered absolutely necessary by military operations). 152 ‘An unprecedented level of restriction on the movements of Palestinians inside the Occupied Territories is depriving Palestinians not only of their freedom of movement, but also of their right to food.’ Report of the UN Special Rapporteur on the Right to Food on His Mission to the Occupied Palestinian Territories, E/CN.4/2004/10/Add.2, 31 October 2003, paras. 11, 38 and 58. 153 Ibid., paras. 20, 29, 38, 55 and 58. See also the Report of the UN Secretary-General on the Protection of Civilians in Armed Conflict, S/2010/579, 11 November 2010, annex, para. 5; and the Goldstone Report, chapter XVII, in particular paras. 1292–1299 and 1300–1335. 154 See e.g. Report of the Independent Expert Appointed by the Secretary-General on the Situation of Human Rights in Somalia, A/HRC/7/26, 17 March 2008, para. 64; Report of the UN Secretary-General on the Protection of Civilians in Armed Conflicts, S/2009/277, 29 May 2009, annex, para. 19. 155 Report of the UN Secretary-General’s Panel of Experts on Accountability in Sri Lanka, 31 March 2011, paras. 209–212; and Report of the UN Secretary-General on the Protection of Civilians in Armed Conflicts, S/2009/277, 29 May 2009, annex, para. 15.



humanitarian assistance267 4. Concluding Remarks

This chapter dealt with states’ (and to some extent non-state armed groups’) obligations relating to the provision of international humanitarian assistance through which many obligations discussed in chapter VII are in fact implemented in times of NIACs. First, it was explored under what conditions states are obliged to request and/or accept offers of international assistance under IHL and the ICESCR. Under IHL treaty law, there are two conditions that must be present: a) the civilian population is suffering undue hardship threatening its survival, and b) the assistance offered is ‘humanitarian’ and ‘impartial’ in character. The first condition is supplemented by the simultaneous application of the right to health and other ESC rights. It could not be clarified entirely whether developments in customary IHL applicable to NIACs alone have reached a point that they establish an obligation of states/non-state armed groups to request and/or accept offers of international assistance even when the survival of the civilian population is not (yet) threatened by starvation or otherwise. Numerous resolutions of the UN Security Council and the General Assembly point in this direction. The parallel application of states’ obligations flowing from the right to health clearly supports such a development. The ICESCR requires states to seek international assistance and cooperation for the progressive realisation of ESC rights, in particular when they lack the capacities and resources to implement their minimum core obligations that were discussed in chapter VII,156 even if the survival of the civilian population is not under immediate threat. The preventive aim of the right to health as well as its long-term goal to establish a functioning basic health system comes through here once more. The IHL requirement that the assistance provided must be ‘humanitarian’ and ‘impartial’ is supported by the right to health, and some aspects are further specified by human rights principles. ‘Humanitarian’ assistance in IHL implies that assistance is provided for the purpose of alleviating civilian suffering and not as military support to one of the parties to the conflict. This is supported by states’ obligations flowing from the right to health to encourage international humanitarian actors to address those direct and indirect health consequences of the armed conflict that are most urgent and widespread and cannot be mitigated by the state/nonstate armed group itself. However, it does not mean that humanitarian 156 See in particular chapter VII, sections 4.2 and 4.3.

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actors must provide assistance equally to the civilian population under the control of both parties to the conflict. The principle of impartiality has three components in IHL, which are all reinforced by human rights principles: the IHL component of non-discrimination overlaps with the identical principle of non-discrimination/ equality in IHRL. The component of proportionality in IHL, demanding that assistance is provided in accordance with need alone, is reinforced by the IHRL principle to concentrate efforts on the protection of those who are most disadvantaged, i.e. those who are most severely affected by direct and indirect health consequences of armed conflicts. The differing focus of on the one hand the right to health, prioritising the mitigation of indirect health consequences, and of on the other hand IHL, emphasising the mitigation of direct health consequences of armed conflicts,157 will influence the exact application of this principle to the context of a particular situation. The component in IHL not to make a subjective distinction in the provision of humanitarian assistance is also reinforced by the right to health that grants this right to everyone, no matter whether this person is good, bad, guilty, innocent, etc. With regard to the related principle of neutrality that guides the provision of humanitarian assistance by many international organisations, above all the ICRC, it was observed that neither IHL nor IHRL actually demand strictly ‘neutral’ humanitarian assistance. As a derived operational principle that flows from the essential principle of impartiality, neutrality can nonetheless guide the work of humanitarian organisations and contribute to preserving the so-called ‘humanitarian space’ in highly politicised NIAC-situations. Neither IHL nor IHRL require, however, that all humanitarian organisations refrain from any engagement that aims to bring an end to the conflict as such, to address its underlying causes or to monitor violations of IHL and IHRL. Finally, it was observed that accepting the parallel application of IHL and IHRL to armed conflict situations could oblige humanitarian organisations to follow a rights-based approach to humanitarian action. It is thus clear that situations in which the parties to the conflict can lawfully reject offers of humanitarian assistance are very limited. While the ICRC Study seems to indicate a decreasing relevance of the requirement to give consent to relief operations on their territory, neither IHL nor the ICESCR do away with this requirement completely. Without the consent of the affected states, humanitarian organisations are likely to face considerable practical problems to carry out their work. 157 Ibid.



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Moreover, the relevant rules of the ICRC Study have been criticised by different actors, and particularly strongly by the US government. With regard to states’ consent to the conduct of relief operations in rebel-held territories, IHL seems to require such consent. The right to health will strengthen the obligation of states to actually give consent, because states clearly have an obligation under the right to health to take all efforts to implement this right even in territories that are not under their control. In a conflict situation where a state has lost control over parts of its territory, letting humanitarian organisations provide assistance might often be the only option to follow this obligation. Thus, with regard to the question of consent, IHL and ESC rights once more complement each other well in narrowing down the situations in which states might legitimately reject the offer of international assistance. IHL and IHRL also contain obligations to actively facilitate the work of humanitarian organisations, and set out the limits of these obligations. Authorised humanitarian relief personnel and humanitarian objects, are to be ‘respected and protected’ in a similar way as the wounded and sick and medical personnel, transports and units—an obligation that is strengthened by the parallel application of the right to health and other ESC rights. More ‘pro-active’ obligations to facilitate the delivery of humanitarian assistance to civilians in need exist in customary IHL, supported by the parallel application of ESC rights. In broad terms, they require that parties to the conflict avoid any harassment and minimise the formalities for the delivery process of humanitarian aid. The measures that states would need to take to implement their obligation to facilitate the rapid and unimpeded passage of humanitarian assistance would vary, depending on the situation at hand. Last, the parties to the conflict have the right to control the delivery of humanitarian assistance to ensure that it is truly ‘humanitarian’ and ‘impartial’, i.e. that it is not diverted towards supporting the military action of one of the parties. Under the right to health and other ESC rights, states, and possibly also non-state armed groups, are entitled and even required to ensure that the assistance delivered is of good quality. Neither of these rights to control shall, however, unduly interfere with the obligations of the parties to the conflict to ensure rapid delivery of assistance to civilians in need who are unable to enjoy their minimum core ESC rights. This is strengthened by the limitation clause of the ICESCR, the build-in limitations of Art. 12 ICCPR and rule 56 of the ICRC Study that permits restrictions to the freedom of movement of humanitarian relief personnel only temporarily for reasons of ‘imperative military necessity’.

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Many of the obligations towards humanitarian actors can also be implemented by non-state armed groups, even if these groups are relatively weak and do not control territories. If non-state armed groups are unable to ensure a basic level of socio-economic wellbeing of the civilian population under their control, they are equally obliged to accept offers of humanitarian assistance and facilitate its delivery. Difficulties arise in areas where the adoption of ‘national’ legislation is required, for example with regard to the ‘authorisation’ of international medical and humanitarian personnel.

CHAPTER NINE

CONCLUDING REMARKS The aim of this study has been to analyse the legal implications of the parallel application of IHL and the ICESCR with a particular emphasis on health-related issues in non-international armed conflicts. Building on the findings from each chapter, more general conclusions on the parallel application of IHL and the ICESCR will be drawn in this chapter—conclusions that go beyond the parallel application of IHL and the right to health. A tentative outlook on further research that should be conducted on the relationship between IHL and ESC rights is also given. This concerns in particular the scope of non-state armed groups’ obligations and the operationalisation of the more detailed legal implications of the parallel application of IHL and ESC rights that have been analysed in this study. 1. The Function of the lex specialis Maxim and Recent Developments in IHL of NIACs and in the Doctrinal Debate about ESC Rights Comprehending the legal implications of the parallel application of IHL and ESC rights in more detail involves a number of complexities. First, the function of the lex specialis maxim in regulating the relationship between IHL and ESC rights is relative and highly situation-dependent: the character and scope of the two rules that apply to the same situation, and the particularities of this situation, determine the exact function of the lex specialis maxim.1 Second, both branches of law—IHL applicable to NIACs and ESC rights—are undergoing considerable developments. These developments have to be understood to enable a reasonable discussion of their simultaneous application with the help of the context-sensitive lex specialis maxim. The substantial increase in customary rules of IHL of NIACs gradually aligns the rules applicable to NIACs with those applicable to IACs.2

1 Chapter II, section 3.3. 2 Chapter III, section 2.3.

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This has closed some of the gaps in AP II, particularly regarding the principles of distinction and proportionality3 that were one focus of this study. However, the difference between IACs and NIACs remains relevant.4 A number of the ICRC Study’s findings have to be treated with some caution. The ‘practice’ collected in volume II of the Study has to be assessed as to whether a particular rule has gained customary status for situations of NIACs. Moreover, while progress has been made in defining criteria that determine the threshold of application of most IHL rules of NIACs— namely the existence of an organised armed group and a minimum level of intensity of hostilities—some open questions remain with regard to the threshold of application of rules the violation of which is not criminalised in Art. 8(2)(d) and (f) ICC Statute.5 More recently, two related questions have been asked: about the realistic capacities of diverse non-state armed groups that are involved in NIACs around the world to apply all aspects of the IHL rules the ICRC Study finds applicable to NIACs as a matter of custom;6 and about the function of the IHL principles of the equality of belligerents and reciprocity to NIACs.7 Thus, these issues must be analysed on a rule-by-rule basis in IHL before their parallel application to ESC rights can be explored. Developments have also taken place in the area of ESC rights. On the one hand, substantial progress has been made in the doctrinal debate about these rights in recent years. National case law as well as ‘jurisprudence’ from international judicial and quasi-judicial bodies has contributed to clarifying both the content of certain socio-economic rights and the principles that describe the entitlements of individuals in different situations.8 On the other hand, challenges remain with fully conceptualising ESC rights as legal rights, due to the notion of ‘progressive realisation’ in accordance with ‘maximum available resources’.9 Not all details of states’ obligations flowing from different ESC rights have been identified. Against this background, this study argued that the minimum core approach,10 the TripleAQ-framework11 and the ICESCR’s limitation clause 3 Ibid., sections 4.4 and 4.5. 4 Ibid., section 2.3. 5 Ibid., part 3. 6 Ibid., sections 2.2, 2.3 and 3.1. 7 Ibid., section 4.6. 8 Chapter IV, parts 2, 4 and 5. 9 Ibid., part 2. 10 Ibid., part 4; and chapter V, sections 2.2.4 and 2.3.2. 11 Chapter IV, part 5.



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(Art. 4)12 seem most helpful in determining the varying scope of states’ obligations under the ICESCR in diverse situations around the world. Together, these frameworks clarify the measures (‘steps’) that states are expected to take to comply with their obligation to progressively implement the right to health and other ESC rights, including in situations of NIAC. As the minimum core approach remains a vague concept, it was suggested that it could usefully be understood in the following terms: as an obligation on states to define a pragmatic national minimum core which inter alia reflects the resources available to the respective state, guided by principled international minimum cores defined in the CESCR’s general comments.13 Art. 4 ICESCR, the Covenant’s limitation clause, has largely been ignored so far in the discussion on ESC rights. It is, however, relevant for guiding states in situations when they are forced to take ‘retrogressive measures’, for example due to a NIAC.14 Thus, different sets of principles determine the actual scope of states’ obligations under the ICESCR in particular situations, built around the minimum core of each right. This makes IHRL a flexible body of law that can be adapted to situations of NIACs and accommodate the parallel application of IHL with the help of a context-sensitive lex specialis maxim. 2. The Relationship of IHL and ESC Rights: Structured by a Context-Sensitive lex specialis Maxim Building on the observations on the relevant recent developments in IHL of NIACs and the doctrinal debate about ESC rights, the analysis in chapters VI-VIII has shown in more detail that the lex specialis maxim can promote a close fit between IHL and the ICESCR. This is true both for situations where there is a substantive tension between or even direct conflict of two norms; and in situations where they complement and reinforce each other. This is based on the recognition of the high context-dependence of the function of the lex specialis maxim expressed in the keywords relationality, contexuality and the omnipresence of general law.15 It is also promoted by the fact that the lex specialis maxim is never used as the sole

12 Chapter V, part 2. 13 Chapter IV, part 4. 14 Chapter V, part 2. 15 Chapter II, section 3.3.

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tool for the interpretation of IHL and ESC rights, but is complemented by other interpretation methods.16 In particular, teleological approaches applied together with the lex specialis maxim ensure that the object and purpose of neither body of law is completely set aside in cases where one rule is given preference. Overall, this allows ESC rights to inject a long-term perspective into the law applicable to armed conflicts and its interpretation. This makes the law more responsive to tackling some of the common root-causes of NIACs, as well as to mitigating their long-term adverse socio-economic consequences. This is related to the systemic objective of IHRL, including that of the right to health. It obliges states to build a sustainable health system that allows individuals to gain physical and economic access to essential health care, and progressively to fully-fledged specialised care. This obligation, in particular its minimum core, remains valid in times of armed conflict, even if humanitarian organisations may partly take over its implementation. Obligations flowing from core and non-core aspects of other ESC rights also reflect this systemic objective of IHRL. Under their minimum core obligations of, for example, the rights to education, housing, food and social security states are respectively obliged to establish sustainable access to an education system, comprised of free and compulsory primary education and progressively of secondary, higher and fundamental education;17 to a comprehensive national housing strategy;18 to a food system which allows physical and economic access at all times to adequate food or the means for its procurement;19 and to social security systems or schemes that provide a minimum essential level of benefits.20 IHL, on the other hand, ensures that the law remains realistic in its aims to protect the health of the civilian population in the face of the difficult reality of an armed conflict. It recognises that the notion of military necessity cannot be ignored in these situations, indicating that the parallel application of ESC rights can never result in something like ‘human rights compliant warfare’—a contradiction in terms. It rather points out how the law can be applied to accommodate this recognition while nevertheless ensuring the greatest possible alleviation of civilian suffering.

16 Ibid., section 3.4. 17 CESCR, General Comment 13 (1999), paras. 57 and 25. The terms primary, secondary, higher and fundamental education are explained in the General Comment, paras. 7–24. 18 CESCR, General Comment 4 (1991), para. 12. 19 CESCR, General Comment 12 (1999), paras. 8 and 25. 20 CESCR, General Comment 19 (2008), para. 59(a).



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Chapters VI-VIII gave more details as to how the lex specialis maxim contributes to both easing substantive tensions between IHL and the right to health, and to promoting the mutual reinforcement of two rules when there is no such substantive tension, but where both bodies of law set slightly differing priorities. These details are briefly summarised, followed by an initial discussion about whether they may apply to the relationship between IHL and other ESC rights more broadly. 2.1. Easing Tensions between Norms Focusing on the parallel application of IHL and the right to health to active combat situations, this study showed how the lex specialis maxim can contribute to easing substantive tensions between IHL and elements of obligations flowing from the right to health.21 Rules of customary IHL permitting attacks on military objectives regularly relate to a particular situation in an armed conflict more directly than states’ obligations not to limit ESC rights beyond what is permitted under Art. 4 ICESCR. This suggests giving IHL preference over the ICESCR in situations of active combat.22 The ‘speciality’ of IHL in regard to the targeting of military objectives lies in the fact that it directly addresses an ‘additional fact present’ in a particular situation: the fact that a certain object is used for military purposes.23 Thus, even if the attacks on certain military objectives can conflict with states’ obligations flowing from the right to health, in particular when the attacked object is a so-called ‘dual-use’ object, through the application of the lex specialis maxim IHL is given preference and attacks can therefore be lawful. This will be similar for the parallel application of other ESC rights and IHL rules on the making of military-target decisions. As in the area of health, direct attacks on foodstuffs, crops, agricultural areas, drinking water installations, irrigation works, educational facilities and civilian houses are prohibited under IHL24 and under the ICESCR.25 However, attacks on certain ‘dual-use’ objects may be regarded lawful under IHL, but can at the same time be seen as a violation of, for example, 21 See chapter VI, parts 4 and 5 in particular. 22 Chapter VI, part 3. 23 Chapter II, section 3.3; and chapter VI, parts 2 and 3. 24 They are protected as civilian objects under rules 7 and 8 ICRC Study, Vol I, pp. 25–29, and enjoy further protection under Art. 14 AP II and rule 54 ICRC Study, Vol I, p. 189, as ‘objects indispensable to the survival of the civilian population’. 25 This has been made clear for example in CESCR, Concluding Observations—Sudan, E/CN.12/1/Add.48 (2000); General Comment 14 (2000), para. 34 and General Comment 15 (2002), para. 21.

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the right to food, water, education or work. To name but a few examples, in the conflict between Israel, Lebanon and the Hezbollah in summer 2006 the destruction of electrical generators severely interrupted the civilian freshwater supply; and in Kosovo in 1999, the targeted bombing of bridges inadvertently broke the water network running under the bridges.26 Similarly, the UN Special Rapporteur on the Right to Food observed regarding Lebanon in 2006 that [t]he destruction of infrastructure in relation to agriculture, including the destruction of agricultural land and civilian infrastructure such as ports, roads, warehouses, food industries, bridges and markets, has made and will continue to make the production of food and its distribution throughout the country extremely difficult.27

Access to work and education can equally be interfered with through the destruction of infrastructure.28 This fact alone may not yet prevent that the IHL definition of a military objective is given preference as the lex specialis, if a certain ‘dual-use’ object is indeed used for military purposes. However, the discussion in chapter VI also highlighted that obligations flowing from ESC rights cannot be discarded completely.29 Among the possible legal implications for the making of military-target decisions are the following: first, the parallel application of ESC rights will generally reject a traditionalist interpretation of IHL that places substantial weight on the principle of military necessity, and rather support a more ‘liberal’ interpretation which emphasises the principle of humanity. For example, it reinforces the rejection shared by most IHL experts of an overly broad interpretation of the phrases ‘purpose or use’ and ‘effective contribution to military action’ that are part of the customary IHL definition of a ‘military objective’. It thereby helps to prevent a wide range of economic objects coming within the IHL definition of ‘military objectives’.30 While the discussion in chapter VI drew this conclusion primarily from the analysis of the parallel application of IHL and the right to health, it can be confirmed by the integration of other ESC rights considerations in the 26 Jorgensen (2007), p. 58; see also other examples given by Tignino (2010); and the Report of four UN Special Rapporteurs on Their Mission to Lebanon and Israel, A/HRC/2/7, 2 October 2006, paras. 64 and 90. 27 Report of the UN Special Rapporteur on the Right to Food on His Mission to Lebanon, A/HRC/2/8, 29 September 2006, para. 24. 28 Report of nine UN Special Rapporteurs on the Human Rights Situation in Palestine and Other Occupied Arab Territories, A/HRC/10/22, 20 March 2009, paras. 45, 64–73. 29 Chapter VI, parts 3–5. 30 Ibid., section 4.1.



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making of military-target decisions. The destruction of a wide range of economic targets based on equating the phrase ‘effective contribution to military action’ with an ‘effective contribution to the enemy’s war-fighting or war-sustaining capability’ would significantly interfere with for instance the rights to food, housing, water and work, without even being justified by the IHL principle of military necessity. The Goldstone Report on the conduct of military operation by Israel in the Gaza strip in December 2008/January 2009 strongly reflects this in its documentation of direct attacks on industrial infrastructure, food production, water installations, sewage treatment plants and housing.31 Second and related to this, the simultaneous application of ESC rights ensures that adverse long-term socio-economic consequences of NIACs for civilians are not ignored even in situations of active combat. For instance, the need for relatively swift reconstruction and re-establishment of basic public services shortly after the active combat-phase is over, a requirement under the core and non-core right to health and other ESC rights, may influence the IHL definition of a ‘military advantage’/‘military objective’. This arguably takes the form of a legal obligation on those who make military-target decisions to take this need into account in the decision-making process.32 Analysing the parallel application of different combinations of ESC rights and IHL rules on the making of military-target decisions is likely to reinforce this finding. It is not only the minimum core obligation under the right to health that, even in active combat situations, goes beyond requiring states to ensure the direct provision of emergency health care to victims of armed conflicts, either by themselves or with the help of humanitarian organisations.33 For example, under the minimum core right to food, states are to ensure ‘the availability of food in a quantity and quality sufficient to satisfy the dietary needs of individuals, free from adverse substances, and acceptable within a given culture’, as well as sustainable access to such food.34 This obligation includes establishing a food system that enables individuals to feed themselves ‘either directly from productive land or other natural resources’, or through ‘well-functioning distribution, processing and market systems that can move food from the

31 Goldstone Report (2009), chapter XIII; paras. 926–941, 961, 987–988, establishing violations of the IHL and the right to food/water; and paras. 1005–1007, establishing violations of IHL and the right to housing, respectively. 32 Chapter VI, section 4.2. 33 Ibid., section 4.2.3. 34 CESCR, General Comment 12 (1999), para. 7.

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site of production to where it is needed in accordance with demand’.35 Similarly, under the minimum core right to education states have to ensure non-discriminatory physical and economic access to free and compulsory primary education, and devise and implement a strategy to progressively guarantee access to secondary, higher and fundamental education.36 This implies running a sustainable education system that enables children (and adults) to develop their personalities, talents and abilities and live a full and satisfying life in society.37 These principal systemic aims reflected in many internationally-defined minimum core ESC rights38 cannot be entirely set aside in situations of active combat. This is so even if the main emphasis is placed on securing direct delivery of humanitarian food aid,39 primary (emergency) education40 and water required to prevent starvation and disease;41 and even if preference is given to IHL rules allowing attacks on military objectives, including ‘dual-use’ objects, as the lex specialis. As argued, this could take the form of an obligation to consider the need for relatively swift reconstruction and re-establishment of basic services (for instance the rebuilding of schools and universities, roads, bridges and water supply lines) immediately after the active combat phase is over, in the process of making military-target decisions. This will also help to prevent civilians affected by armed conflicts becoming dependent on humanitarian aid in the long-term—in line with the object and purpose of the ICESCR, ensuring dignified and sustainable individual access to food, health care, education, housing, social security, etc.42 As has been observed for the context of the right to health, this will not necessarily contradict military doctrine, particularly not counterinsurgency strategies.43 35 Ibid., para. 12; and Künnemann (2002), pp. 177–82. 36 CESCR, General Comment 13 (1999), para. 57. 37 Art.13(1) ICESCR; CESCR, General Comment 13 (1999), para. 49; CRCttee, General Comment 1 (2001); Report of the UN Special Rapporteur on the Right to Education, A/HRC/8/10, 20 May 2008, paras. 110–112. 38 Similar analysis could be conducted regarding the rights to housing, water, social security and work. See CECSR, General Comment 4 (1991), para. 12; General Comment 15 (2002), paras. 10, 28 and 37; General Comment 19 (2008), paras. 11, 41 and 59 and General Comment 18 (2005), paras. 26, 31(c), 38 and 41–42 respectively. 39 CESCR, General Comment 12 (1999), paras. 6, 19 and 38. 40 CESCR, General Comment 13 (1999), paras. 51 and 57; and Report of the UN Special Rapporteur on the Right to Education, A/HRC/8/10, 20 May 2008, paras. 41, 42, 60 and 79. 41 CESCR, General Comment 15 (2002), para. 6. 42 This is emphasised e.g. in CESCR, General Comment 12 (1999), para. 39. This is also clearly outlined in the Report of the UN Special Rapporteur on the Right to Food, A/HRC/10/5, 11 February 2009, paras. 30–35. 43 Chapter VI, section 4.2.4.



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It has further been outlined how reasonably foreseeable violations of the right to health resulting from attacks on certain military objectives— even if they occur only in the mid- or long-term—could be factored into the IHL proportionality analysis as part of an emerging legal obligation.44 This conclusion can also be applied to ESC rights more broadly: reasonably foreseeable (short- or long-term) violations of, for example, the rights to food, education, water or housing could be factored into the IHL proportionality analysis. Attacks on certain ‘dual-use’ objects, such as roads, bridges, industrial complexes and energy-generating facilities have medium- and long-term effects not only on people’s ability to enjoy their right to health, but also on their abilities to enjoy those other ESC rights. For example in the Kosovo conflict in 1999, attacks against industrial facilities along the Danube River caused the release of polluting substances into the river and surrounding land, affecting inter alia the water resources in the area.45 This interferes with individuals’ rights to access drinking water of good quality, even in the long-term; and the CESCR has described the pollution and diminution of water resources affecting human health a violation of the right to water.46 Similarly, attacks on electricity generating facilities frequently result in the breakdown of sewage treatment plants, polluting drinking water.47 As far as the right to food is concerned, the destruction of roads and bridges can interfere with different elements of the right to physical and economic access to adequate food or means of its procurement. Access to farmlands, fishing grounds, food producing industries and markets can be interrupted; and supplies essential for food production (for instance fertilizer, seeds, fuel, tools and building materials) cannot reach farmers and food producers.48 The breakdown of food and water systems can have medium- and long-term devastating effects for the civilian population, as malnutrition is one of the most common causes of conflict-related non-battle deaths.49 Interference with the right to education in times of armed conflicts can also have particularly long-term socioeconomic effects for the affected population: the disruption of primary, 44 Ibid., part 5. 45 UNEP, From Conflict to Peace Building—The Role of Natural Resources and the Environment (2009), p. 16; and Tignino (2010), p. 658. 46 CESCR, General Comment 15 (2002), paras. 12b) and 44a). 47 Report of nine UN Special Rapporteurs on the Human Rights Situation in Palestine and Other Occupied Arab Territories, A/HRC/10/22, 20 March 2009, para. 42. 48 Ibid., paras. 46 and 47. 49 Young and Yaspers (2006), p. 3; Ghoborah, Huth and Russet (2003), p. 192; and Lacina and Gleditsch (2005). See also the other sources cited in chapter IV, part 5.2, in particular ns. 138–140; and Sphere Charter (2011), p. 144.

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secondary and university education can undermine children’s, adolescents’ and young people’s prospects for the future as they miss out on acquiring the knowledge and skills that enable them to live a dignified life through work and participation in the community.50 An analysis of how an attack on a certain ‘dual-use’ object can possibly interfere with the different minimum core components of a basic food, water or education system that are outlined in the respective general comments of the CESCR,51 could make likely medium- and long-term socioeconomic effects of such attacks indeed more foreseeable. These can then be factored into the IHL proportionality analysis as a consequence of accepting the parallel application of ESC rights to armed conflicts. While an inconvertible cause-effect relationship is not required to recognise that  attacks on certain ‘dual-use’ objects violate certain ESC rights, enhanced efforts to collect data from conflict-affected countries with the help of nutritionists, economists, epidemiologists, education experts etc. could contribute to a better understanding of the short-, medium- and long-term socio-economic consequences of attacks on certain ‘dual-use’ objects.52 An analysis of the legal consequences of the simultaneous application of ESC rights and other IHL rules relating to the conduct of hostilities is likely to further support the obligation on the parties to the conflict to ensure that adverse long-term socio-economic consequences of NIACs are taken into account even in the active combat phase of an armed conflict. This would, for example, be the case with the parallel application of ESC rights and IHL rules relating to the conduct of sieges53 or obligations to take precautions in attack.54 2.2. Promoting Mutual Reinforcement and Complementarity Chapters VII and VIII indicated how the lex specialis maxim supports the smooth complementary application of IHL and ESC rights when there is no direct tension between two rules. In these cases one rule can be seen as an update or elaboration of the other, where the ICESCR fills a gap in IHL 50 Report of the UN Special Rapporteur on the Right to Education, 20 May 2008, paras. 31–35; see also an analysis of the situation in Iraq by Samaraie (2007), pp. 933–34 and 942. 51 E.g. CESCR, General Comment 12 (1999), para. 8; General Comment 13 (1999), para. 57 and General Comment 15 (2002), para. 37. 52 Also see the arguments in chapter VI, section 5.3.1. 53 Art.14 AP II; rule 53 ICRC Study, Vol I, p. 186. 54 Rules 15–21 ICRC Study, Vol I, pp. 51–67.



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and vice versa, or where two rules set slightly differing priorities. These features were most obvious in the discussion about states’ obligations under IHL and the ICESCR that aim at the alleviation of armed conflicts’ direct and indirect impact on public health, as well as in the description of the conditions under which parties to the conflict have to request and/or accept international humanitarian assistance. IHL generally addresses the direct health consequences of armed conflicts with its provisions on the protection of the wounded and sick. Obligations include to search and collect the wounded and sick and to provide them with adequate care, including first aid and definitive trauma and surgical care. These clearly reflect the origins of IHL: its traditional focus on military medicine and the provision of medical care to wounded and sick combatants.55 The protection of the wounded and sick includes the protection of wounded and sick civilians in contemporary IHL of NIACs. However, it is the parallel applicability of the right to health and other ESC rights that ensure that mitigating the indirect health consequences of NIACs is recognised as an equally important obligation on states.56 The internationally-defined minimum core right to health prioritises community-based primary health care over specialised secondary and tertiary health care. Particularly in low-income countries, specialised trauma care and war surgery services are not usually part of primary health care. This community-based primary health care focus often relates well to the reality on the ground in NIACs. Surveys suggest that in many conflicts the greatest health threat to individuals is not the danger of being wounded or injured in on-going hostilities, but contracting communicable diseases, above all measles, diarrhoea, acute respiratory infections and malaria. In particular, in resource-poor countries where deaths from these indirect health consequences are elevated in times of armed conflict, the focus suggested by a minimum core right to health seems very valuable. Once more, if implemented, this focus promises to reduce NIACs’ long-term adverse effects on public health. This is because it obliges states to make all possible efforts even during armed conflicts to maintain a functioning basic health system, if necessary with the support of international humanitarian organisations.57 Even if states limit the right to health in NIACs in accordance with Art. 4 ICESCR, the minimum core right to health must be 55 Chapter VII, part 2 and sections 4.1 and 4.2. 56 Ibid., part 2 and section 4.3. 57 Ibid., section 4.3.2; and Chapter VIII.

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implemented as a matter of high priority.58 This is also reflected in the obligation on the parties to the conflict to accept and/or to request international humanitarian assistance not only when the survival of the civilian population is at stake, but also when the civilian populations’ minimum core right to health cannot be fulfilled by the respective parties to the conflict. Accepting and/or requesting assistance early to maintain a functioning health system is likely to reduce the medium- and long-term public health effects of armed conflicts.59 In the end, however, when resources are limited the situation on the ground determines whether emphasis is placed on maintaining essential primary health care as suggested by the minimum core right to health, or on the provision of emergency medical care, including specialised trauma care, as suggested by IHL. The number of people who are seriously injured, the state of the relevant health system, and the assistance offered by international humanitarian organisations (and accepted by the respective government/non-state armed group), are among the factors that will influence which health interventions are given preference. This is supported by a context-sensitive application of the lex specialis maxim that can mirror these circumstances.60 Correspondingly, the response by humanitarian organisations should be guided by IHL- and human rights principles.61 In other areas concerning the alleviation of the public health impact of NIACs, either IHL or the ICESCR gives more detailed guidance. IHL, for example, contains detailed definitions of medical personnel, medical units and medical transports that are missing from the plain text of Art. 12 ICESCR. It further sets out procedures to identify these personnel, units and transports (through the distinctive Red Cross/Red Crescent emblem). This gives them special protection from attacks, recognising that special situations of armed conflicts demand such special protection to maintain medical services.62 The right to health and other ESC rights on the other hand strengthen states’ obligations to (pro-actively) facilitate the delivery of assistance.63 The ICESCR also covers questions related to the diversion of resources from health care and other public services toward military/ security spending. This issue is not directly addressed by IHL.64 In these 58 Chapter V, sections 2.2.4 and 2.3.2; and chapter IV, section 4.4. 59 Chapter VIII, section 2.1. 60 Chapter VII, part 2; and chapter II, section 3.3. 61 Chapter VIII, part 2.2. 62 Chapter VII, part 5. 63 Chapter VIII, part 3. 64 Chapter VII, part.3.



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cases where the relationship between IHL and the ICESCR is characterised by mutual gap-filling, there is no direct role for the lex specialis maxim. These findings can be generalised and applied to the parallel application of ESC rights, in particular their minimum cores, and relevant IHL rules more broadly. However, the exact shape of the complementarity of relevant IHL and a particular ESC right varies in accordance with the rules at hand, as well as with the situation on the ground to which they are applied. As with health-related issues, in the area of food, water, housing and education, the tendency can be observed that IHL addresses the more direct consequences that NIACs can have on people’s ability to enjoy access to adequate food, water, housing and education; whereas the rights to food, water, housing and education also place obligations on states to mitigate the more indirect consequences of conflicts in these areas.65 IHL, for example, obliges parties to the conflict to ensure the direct delivery of impartial humanitarian assistance, including food aid, water and emergency shelter, to the civilian population, if the civilian population is ‘suffering undue hardship’ threatening its survival.66 The specific protection from direct attacks afforded to humanitarian relief personnel67 and objects used by humanitarian relief operations68 in IHL also aids the mitigation of direct consequences of armed conflicts on civilian access to food, water, shelter and education, as these provisions protect authorised personnel delivering food aid, water engineers and persons responsible for the construction of emergency shelter (including education facilities), as well as their equipment.69 Moreover, IHL ensures that persons whose liberty has been restricted due to a NIAC are directly provided with adequate food, drinking water and shelter.70 It also establishes that children shall ‘receive an education, including religious and moral education, in keeping with the wishes of their parents, or in the absence of parents, of those responsible for their care’.71 It is however unclear which aspects of 65 A distinction between direct and indirect socio-economic consequences of armed conflict can, of course, not always be drawn clearly. 66 Chapter VIII, part 2. 67 See chapter VIII, section 3.1. 68 Ibid. 69 Ibid. 70 Art.5(1)(b) AP II establishes that ‘persons whose liberty has been restricted’ for reasons related to the armed conflict shall be ‘provided with food and drinking water’; rule 118 ICRC Study, Vol I, p. 428, adds the adjective ‘adequate’ as well as ‘clothing, shelter and medical attention’. 71 Art.4(3)(a) AP II. This obligation is not directly reiterated in rule 135 ICRC Study, Vol I, pp. 479–482.

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this latter rule have attained customary status in IHL, as it is not directly  endorsed by the ICRC Study,72 and because humanitarian responses guided by IHL have not traditionally entailed the provision of education.73 Under the rights to food, water and housing, states are equally required to directly provide emergency food aid, sufficient water and temporary shelter to victims of armed conflicts, if individuals are unable to gain such access by their own means, using their own resources.74 The minimum core obligation flowing from the right to education to provide ‘the most basic forms of education’75 remains applicable in NIACs as well, and requires states and/or humanitarian organisations to make all efforts to minimise the interruption of education caused by the conflict.76 These measures aim to alleviate the direct consequences of conflicts on civilians. However, in a similar way as states are obliged under the minimum core right to health to prioritise the provision of primary health care inter alia by maintaining a basic community-based health system, thereby addressing the armed conflicts’ indirect health consequences affecting the civilian population, the obligations under the minimum core rights to food, water, housing and education can also complement the emergency-focus of IHL by obliging states to take account of and address the more indirect consequences of the armed conflict in these areas. If necessary, assistance from international actors should be requested. Examples concerning the rights to food, housing and education shall follow. The minimum core right to food is not limited to a right to physical access to adequate food, but includes ‘sustainable’ physical and economic access that ‘does not interfere with the enjoyment of other human rights’.77 The standards of the Sphere Charter, which claim to reflect the minimum core right to food,78 for example, suggest that responses to food insecurity 72 The commentary on Rule 135 only suggests that practice indicates ‘that the special respect and protection due to children affected by armed conflict includes … access to education, food and health care’ (ICRC Study, Vol I, p. 481). 73 See e.g. Report of the UN Special Rapporteur on the Right to Education, A/HRC/8/10, 20 May 2008, para. 31; Minimum Standards for Education: Preparedness, Response, Recovery (2010), p. 3; this can also be inferred from ICRC Commentary (AP I/II) on Art.18(2) AP II, para. 1479. 74 Chapter VIII, section 2.1; and CESCR, General Comment 12 (1999), paras. 6, 15, 19 and 38; General Comment 15 (2002), paras. 6, 16(f) and (h), 25, 44 and 60; and General Comment 4 (1991), para. 8(e). 75 CESCR, General Comment 13 (1999), para. 57; and General Comment 3 (1990), para. 10. 76 See e.g. Inter-Agency Network for Education in Emergencies (2010). 77 CESCR, General Comment 12 (1999), para.8. 78 Sphere Charter (2011), pp. 143–144.



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due to an armed conflict or other disaster should address ‘people’s immediate food needs’ but shall ‘also consider the protection and promotion of livelihood strategies’.79 This includes interventions to increase access to employment, markets or resources needed for primary food production (farmland, pasture, fodder, water, fishing grounds, seeds, tools, etc.).80 This is conducive to mitigating the more indirect consequences of armed conflicts on food security, mainly by supporting people’s economic access to food, and thereby preventing the affected population’s long-term dependency on food aid. In line with this analysis, the Report of nine UN special procedure mandate-holders on the Human Rights Situation in Palestine and other Occupied Arab Territories recommends that all relevant parties should ‘facilitate the prompt repair of greenhouses, farms and centres of food production; enable the repair of water and pumping stations; and enable the import of reconstruction materials to build or repair vital infrastructure …’.81 In a similar vein, in its Concluding Observations on Sri Lanka the CESCR highlighted Sri Lanka’s obligation under the right to food to enhance the livelihood opportunities of individuals affected by armed conflicts, in this particular case of internally displaced persons.82 As far as the right to adequate housing is concerned, the CESCR has not yet directly defined the minimum core content of this right. It can, however, be assumed from its General Comment 4 and the object and purpose of the ICESCR that this minimum core goes beyond an obligation to provide a physical structure that offers protection from the elements.83 It includes key factors such as legal security of tenure, availability of services, affordability, habitability and cultural adequacy.84 As observed by the UN Special Rapporteur on the Right to Adequate Housing, the impact of conflicts on the right to adequate housing ‘should not be measured simply in terms of numbers of physical assets destroyed…. It should also and perhaps primarily be understood in terms of the extent of disruption of social relationships, networks and assets; destruction of home-centred

79 Sphere Charter (2011), pp. 151 and 153: ‘While meeting immediate needs and preserving productive assets will be the priority at the onset of a crisis, responses must always be planned with the longer term in mind…’. 80 Sphere Charter (2011), pp. 203–213; see also Report of the UN Special Rapporteur on the Right to Food, A/HRC/10/5, 11 February 2009, para.22. 81 Report of nine UN Special Rapporteurs on the Human Rights Situation in Palestine and Other Occupied Arab Territories, A/HRC/10/22, 20 March 2009, paras. 103(d)-(f). 82 CESCR, Concluding Observations—Sri Lanka, E/C.12/LKA/CO/2–4 (2010), para. 29 (emphasis added). 83 CESCR, General Comment 4 (1991), para. 7. 84 Ibid., para. 8.

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livelihoods built up over many years; and the undermining of complex, multi-layered land tenure rights’.85 Under their obligations flowing from the minimum core right to adequate housing in situations of armed conflicts, states (and humanitarian organisations which may take over the implementation of these obligations) must therefore not only provide emergency shelter, but also concern themselves with for example tenure security as a ‘fundamentally important dimension of the right to adequate housing’.86 This may, for instance, require early addressing of problems related to the loss of records concerning land and property, to the absence of documentation to prove the prior occupation history of long-term informal users of land and property, to the actions of powerful interest groups that are keen on capitalising on the uncertainties in land and property ownership, and to other problems, with the aim to establish a sufficient degree of security of tenure for everyone.87 The UN Special Rapporteur on the Right to Adequate Housing clearly highlights that addressing tenure security challenges can ‘contribute significantly to strategies for restoration, reconstruction and development’,88 thereby mitigating the indirect and longer-term effects of armed conflicts on people’s access to housing. This and other possible components of the minimum core right to adequate housing89 can complement the IHL focus on the provision of (temporary) emergency shelter. In practice, education has long been neglected in emergency responses,90 even though taking measures to minimise the interruption of  education are clearly required under the minimum core right to

85 Report of the UN Special Rapporteur on the Right to Adequate Housing, A/HRC/16/42, 20 December 2010, para. 15; see also Sphere Charter (2011), p. 244, which is based on the minimum core right to adequate housing. 86 Ibid., para. 22; and CESCR, General Comment 4 (1991), para. 8(a), highlights that tenure can take ‘a variety of forms, including rental (public and private) accommodation, cooperative housing, lease, owner-occupation, emergency housing and informal settlements, including occupation of land and property’ all of which shall be protected as part of the right to adequate housing. 87 Report of the UN Special Rapporteur on the Right to Adequate Housing, A/HRC/16/42, 20 December 2010, para. 20, and with examples from East Timor, Cambodia and Honduras in paras. 22–35; see also Sphere Charter (2011), p. 255. 88 Report of the UN Special Rapporteur on the Right to Adequate Housing, A/HRC/16/42, 20 December 2010, para. 23. 89 For example the availability of services and the affordability, habitability and cultural appropriateness of housing. 90 Report of the UN Special Rapporteur on the Right to Education, A/HRC/8/10, 20 May 2008, paras. 31 and 65; Inter-Agency Network for Education in Emergencies (2010), p. 3. Education is also rarely covered by literature on IHL.



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education91 and under IHL,92 and are likely to reduce the long-term, more indirect socio-economic consequences of armed conflicts. This is particularly so when education is based on respect for human rights, in conformity with the objectives set out in Art. 13(1) ICESCR—a requirement that forms part of the internationally-defined minimum core right to education.93 Art. 13(1) ICESCR obliges states to provide education directed to the ‘full development of the human personality and the sense of its dignity’ that strengthens ‘the respect for human rights and fundamental freedoms’. Furthermore, ‘education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace’.94 Thus, through education grounded in human rights, children and young people shall first be given the opportunity to develop skills and to reach their full potential which will enable them to constructively participate in the social, cultural, economic and political life of their communities; second, education can enhance social cohesion and support conflict resolution and peace-building.95 Both aims are of great importance for limiting long-term socio-economic effects of armed conflicts, and thereby complement the measures states are required to take under Art. 4(3)(a) AP II very well. Moreover, it has been recognised that providing education in times of armed conflicts can help to prevent other human rights violations, such as the recruitment of child soldiers, abduction and gender-based violence.96 It can also help to transmit information that is important for survival in times of crisis, such as information about landmines, cluster bombs and HIV/AIDS prevention.97 This can be done through the adaptation of curricula to the 91 Report of the UN Special Rapporteur on the Right to Education, A/HRC/8/10, 28 May 2008, para. 10; Inter-Agency Network for Education in Emergencies (2010), p. 7. The Minimum Standards are based on the right to education as inter alia set out in Arts. 13 and 14 ICESCR. 92 Art. 4(3) and 18 AP II; and (indirectly) rules 135 and 55 ICRC Study, Vol I, pp. 479–482 and 193–200. 93 CESCR, General Comment 13 (1999), para. 57. 94 These aims of education are also reinforced by Art. 29(1) CRC; for more detail also see CRCttee, General Comment 1 (2001). 95 Inter-Agency Network for Education in Emergencies (2010), pp. 77–82; Report of the UN Special Rapporteur on the Right to Education, A/HRC/8/10, 28 May 2008, paras. 110–118; and Report of nine UN Special Rapporteurs on the Human Rights Situation in Palestine and other Occupied Arab Territories, A/HRC/10/22, 20 March 2009, paras. 103(a) and (b). 96 Inter-Agency Network for Education in Emergencies (2010), p. 2; UN General Assembly, The Machel Review 1996–2000, A/55/749, 26 January 2001, pp. 31–32. 97 Report of the UN Special Rapporteur on the Right to Education, A/HRC/8/10, 20 May 2008, para. 35.

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specific situations of armed conflicts, and can again help to minimise the direct and indirect socio-economic consequences of armed conflicts for the affected populations. From this short analysis of the relationship between relevant IHL rules and the rights to food, housing and education, it is clear that even their minimum cores can complement the IHL-focus on mitigating the more direct consequences of armed conflicts in these areas. The shape that the complementarity takes differs in accordance with the rights in question. In the area of health, IHL and the minimum core right to health set differing priorities which complement each other well. In other areas, in particular concerning housing and education, the minimum core rights to adequate housing and education contain elements that are not covered by IHL; examples given were the security of tenure and the aims of education that form important parts of the minimum core rights to adequate housing and education respectively. Taking account of these elements in times of armed conflict can contribute to alleviating the more indirect, longerterm socio-economic consequences of these conflicts. Here, complementarity can be characterised as mutual gap-filling. In other areas, such as social security, IHL does not contain any provisions and thus states’ obligations in times of armed conflicts will derive from the minimum core right to social security as set out in the Committee’s General Comment 19.98 Another interesting issue to be analysed in future is the question of the extent to which the right to participate in cultural life99 and IHL rules relating to the protection of cultural property100 complement each other, and what shape this complementarity takes. As in the area of health care, whether priority is given to the implementation of elements protecting access to food, water, housing or education as required by IHL, by the respective rights in the ICESCR or by both of these, will also depend on the situation on the ground, supported by a context-sensitive lex specialis maxim.101 The state of development of the infrastructure, the water system, the education system and the characteristics of food production in the affected country, as well as the extent to   98 CESCR, General Comment 19 (2008), para. 59.   99 Art. 15(1)(a) ICESCR. 100 As set out in rules 38–40 ICRC Study, Vol I, pp. 127–135, and the Second Hague Protocol for the Protection of Cultural Property in the Event of Armed Conflict (26 March 1999). 101 As discussed in chapter VII, section 4.3.2; see also the analysis concerning the provision of food aid in different situations in the Report of the UN Special Rapporteur on the Right to Food, A/HRC/10/5, 11 February 2009, paras. 30–35.



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which they have been affected by the armed conflict, are among the facts that will determine where the emphasis is put in accordance with IHL and IHRL. Human rights principles, in particular the principle of participation, can play an important role in determining the best responses in a specific situation.102 3. Non-State Armed Groups and the Parallel Application of IHL and the ICESCR The primary aim of this study was to analyse the relationship of states’ obligations under IHL and the ICESCR, and it thus only touched on the scope of non-state armed groups’ obligations under IHL and possibly the ICESCR. Yet, from the limited analysis, it can reasonably be concluded that non-state armed groups will regularly have the capacity to implement many of the obligations flowing from IHL and the ICESCR to facilitate the smooth delivery of humanitarian assistance to the civilian population in need in territories under their control. Non-state armed groups are obliged to give their consent to the provision of impartial and humanitarian assistance to civilians in need if they cannot guarantee a minimum socioeconomic well-being of the population under their control.103 They have to respect and protect humanitarian relief personnel and humanitarian objects; and facilitate the delivery of assistance as far as possible.104 Regarding the latter, questions remain concerning the exact scope of the obligation; whether non-state armed groups can ‘authorise’ international relief personnel; and whether they can enact ‘legislation’ towards this end and on the modalities for the distribution of humanitarian assistance.105 In future, a thorough investigation into non-state armed groups’ actual practice could be conducted to understand the capacities of non-state armed groups to implement IHL and ESC rights in relation to the delivery of humanitarian assistance as well as in relation to other ESC rights and 102 The importance of adhering to the principle of participation is clearly emphasised in various documents relating to conflict situations, e.g. the Sphere Charter (2011), inter alia pp. 7, 23, 24, 53 and 57; Inter-Agency Network for Education in Emergencies (2010), pp. 18–28; Report of the UN Special Rapporteur on the Right to Food, A/HRC/10/5, 11 February 2009, paras. 26–27 and 33–34; Report of the UN Special Rapporteur on the Right to Education, A/HRC/8/10, 20 May 2008, paras. 36–49; and Report of the UN Special Rapporteur on the Right to Housing, A/HRC/16/42, 20 December 2010, para. 11. 103 Chapter VIII, part 2. 104 Ibid., part 3. 105 Ibid., section 3.2.

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more far-reaching elements of customary IHL.106 Such an analysis also promises to contribute to finding a practical answer to the question of the extent to which the IHL principle of the equality of belligerents can and should be upheld in the law applicable to NIACs. Developing a theory of non-state armed groups’ obligations under IHL and IHRL—possibly in form of a ‘sliding scale’107 of obligations, providing for their increasing obligations according to their degree of organisation and the intensity of violence in which they are involved—seems to be a real possibility in the future development of the law. Under such a theory, the IHL principle of the equality of belligerents/reciprocity as a mechanism to ensure compliance with IHL is likely to be supplemented by ‘new’ paradigms of compliance. Among them could be ‘rewards’ for members of non-state armed groups who comply with IHL in form of a POW-status in NIACs and enhanced international criminal prosecution of violations.108 This study concluded, however, that it is reasonable to require the parallel application of ESC rights, in addition to IHL, primarily for the state party to the conflict, rather than ruling this out as something that would unduly interfere with the IHL principle of the equality of belligerent.109 Arguments supporting this are first that the principle of the equality of belligerents in IHL of NIACs in its current form is in any case incomplete, and is therefore frequently ineffective in ensuring non-state armed groups’ compliance with the law. States should not be able to avoid their IHRL obligations as long as there is no agreement on the extent to which IHRL also binds non-state armed groups. Second, the parallel application would only require states to follow the rules to which they bound themselves with the ratification of human rights treaties, and which are applicable regardless of the existence of a NIAC. Third, there are indications that states themselves recognise that it makes strategic sense to apply ESC rights to NIACs, in particular to counterinsurgency operations.110 Last, the mentioned ‘new’ paradigms of compliance are likely to complement the principle of the equality of belligerents/reciprocity to increasingly ensure the compliance with the law.

106 Chapter I, part 1. 107 For suggestions into this direction see Sassòli (2010), p. 20; see also the Debate in (2011) 93 IRRC 425 between Sassòli and Shany. 108 See also chapter I, part 1; chapter III, sections 2.2, 2.3, 3.1 and 4.6; and chapter VI, section 5.3.3. 109 Chapter VI, section 5.3.3. 110 Ibid., section 4.2.4.



concluding remarks291 4. Towards the Operationalisation of this Study’s Findings

Thus far, conclusions have been drawn on some general characteristics of the relationship between IHL and the ICESCR that range from substantive tensions, through mutual gap-filling to strong mutual reinforcement. However, chapters VI-VIII in particular, and the brief discussion about how the findings from these chapters apply to the relationship between IHL and ESC rights more broadly, show that the more detailed legal implications of the parallel application of IHL and the ICESCR can only be described on a rule-by-rule basis and taking account of the given situation where the rules are applied. This is also reflected in the strong contextsensitivity of the lex specialis maxim. Such flexibility mirrors the greatly varying circumstances to which the law has to be applied in NIACs around the world. However, the flexibility in the application of the law has its drawbacks. The connected discretion that is given to those who are meant to apply the law by the high context-dependence of the lex specialis maxim can be problematic. First, in the difficult situations of an on-going armed conflict it is rather unrealistic for those involved—be they governmental decisionmakers, military, medical, humanitarian or other personnel, or even nonstate armed groups—to decide in each situation which rule should be given preference. The complexities involved in this process that are highlighted in this study are evidence of this. All the different actors involved in armed conflicts cannot be expected to have a detailed understanding of IHL and IHRL, as well as the contextual function of the lex specialis maxim. Second, the wide discretion given by the law can be exploited by decisionmakers. It gives them an opportunity to prioritise the rule that better reflects their political, military, economic or other interests. In the worst case, the applicability of any rule can be denied.111 There certainly is a subjective element in the application of all interpretation methods in international law. Nonetheless, future discussion of the inter-relationship between IHL and ESC rights should give further attention as to how these challenges could be addressed, and how the nuances of the parallel application of IHL and the ICESCR can be operationalised effectively. There seem to be two main possibilities of how this can be achieved.

111 Chapter I, section 1; and chapter II, section 3.5.

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chapter nine 4.1. Human-Rights-Inspired IHL Treaties

The first suggestion is to draft a human-rights-inspired IHL treaty and a treaty of IHRL applicable in times of war in light of IHL, and hope that both reach the same conclusion.112 This seems particularly practical when new treaties are negotiated that develop or expand the law in regard to specific issues that have not been covered by IHL and IHRL before or that have only been covered implicitly. The 2008 Convention on Cluster Munitions is a case in point: it sensibly combines IHL and IHRL to end the suffering caused by cluster munitions. It provides protection of and longterm support for cluster munition victims and helps to ensure that cluster munitions are not used in future. The complementarity between IHL and IHRL is clear in the Convention on Cluster Munitions, and enhances the protection of civilians affected by armed conflicts. However, questions arise concerning the extent to which non-state armed groups are bound by the Convention—a fact that indicates one of the difficulties with the ‘solution’ of drafting human-rights-inspired IHL treaties. With regard to existing treaties this ‘solution’ seems unrealistic as states are unlikely to assemble in the foreseeable future to redraft IHL treaties in light of IHRL. Renegotiating treaties also always involves the danger that states lower existing standards instead of enhancing the protection of individuals affected by armed conflicts. Moreover, even if an analysis of the inter-relationship between each provision of IHL and IHRL were conducted for a ‘new’ treaty, it is questionable whether this would give a clear picture of the actual relationship between the two bodies of law without unduly compromising their respective strengths and their object and purpose. Rather, flexible parallel application allows the respective object and purpose of the bodies of law to be better reflected in the differing situations in which they are applied, giving preference sometimes to IHL, sometimes to IHRL. Again, the binding effect of a ‘new’ treaty for nonstate armed groups would also be questionable. 4.2. Guidelines to Assess the Relationship between IHL and ESC Rights in Different Situations With this difficulty in mind, a second suggestion may be more functional. In her analysis of the procedural regulation of internment in NIACs, Olsen

112 As suggested by Sassòli (2007a), p. 395; also mentioned by Olsen (2009), p. 457; see also Hampson (2008), p. 521, with a suggestion that goes into a similar direction.



concluding remarks293

proposed the development of guidelines to assist practitioners in assessing the relationship between IHL and IHRL in a given situation.113 Such guidelines would be designed to help operationalise her findings on internment in NIACs, an area which is sometimes regulated by IHRL, while in other cases IHL of IACs is relied on to fill a gap in IHL of NIACs. The advantage of guidelines would be that they could direct the harmonisation of IHL and IHRL in different situations and for different actors involved in armed conflicts. While a ‘new’ human-rights-inspired IHL treaty would primarily address states, as they are clearly bound by IHL and IHRL, guidelines could take account of non-state armed groups. This becomes particularly appealing against the background of the renewed discussion as to whether it can realistically be expected that the diverse non-state armed groups around the world can follow all IHL that is found to apply to NIACs as a matter of custom by the ICRC Study. The practice of developing guidelines is a well-recognised tool for facilitating the parallel application of different bodies of law in practice. The Guiding Principles on Internal Displacement114 offer a notable example, as they have successfully guided governments, international organisations and other actors in providing assistance and protection to internally displaced persons.115 The Principles are based on IHL, IHRL and analogous refugee law. While establishing such guidelines is certainly ‘a highly complex (and very ambitious) endeavour’116 which cannot be accomplished here, the last paragraphs express a few preliminary thoughts about how such guidelines could work for the relationship between IHL and ESC rights. Guidelines could help to give practical effect to the general and more specialised findings of this study. Human-rights and humanitarian lawyers could set out the basic framework for the guidelines, concerning, for example, the scope of application of the two bodies of law (including the extent of their extraterritorial application), the extent to which different actors are bound by them (states and non-state armed groups), the function of the lex specialis maxim, and the different principles that underlie each branch of law.117 113 Olsen (2009), pp. 457–61. 114 Guiding Principles on Internal Displacement, E/CN.4/1998/53.Add.2 (1998). 115 For comprehensive information on the legal background of the Guiding Principles and their impact in protecting the rights of internally displaced persons, see: http://www .idpguidingprinciples.org [last accessed 17 September 2012]. 116 Olsen (2009), p. 460. 117 Ibid., pp. 457–459.

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Findings of in particular chapters VI and VII could inform more detailed guidelines on the parallel application of IHL and the right to health in different situations; and similar rule-by-rule analysis of IHL and other ESC rights applicable to different situations would need to be conducted to cover other areas. Details would also need to be developed with the support of other experts, among them military strategists, humanitarian workers, nutritionists, epidemiologists, economists, education and housing experts, etc. For instance, the exact practical implications of the integration of ESC rights in the making of military-target decisions can only be formulated in the form of guidelines with the involvement and support of the military. This is particularly so because non-military personnel rarely have insight into the confidential processes of deciding on military targets.118 The discussion in chapter VI made clear that this must not necessarily result in a rejection or neglect of the above mentioned long-term perspective that ESC rights would introduce to such decision-making—especially not with regard to counterinsurgency operations.119 Involving public health experts and other civilian experts is, however, equally necessary. They could contribute to the determination of the effects an attack on a certain military objective may have on public health, including the long-term effects,120 as well as other socio-economic consequences in the area of food, education, housing, etc. Their insight should flow into the interpretation of the law as well as possible guidelines for its application. Epidemiologists may also contribute to guidelines relating to the priorities that should be set for the mitigation of public health consequences of armed conflicts. As discussed, IHL and the right to health sometimes suggest different priorities in this context.121 IHL emphasises emergency health care for those wounded in on-going hostilities, the minimum core right to health focuses on community-based primary health care. The application of the lex specialis maxim would demand priority for the norms that most directly mirror the situation on the ground. Epide­ miologists could help to establish which health threats are likely to be the greatest in which contexts and situations, and which should therefore be addressed most urgently where resources are limited. Likewise, epidemiologists could help to identify where low-income countries would most 118 As noted by e.g. Alston, Morgan-Foster and Abresch (2008), p. 184. 119 Chapter VI, section 4.2.4. 120 Ibid., section 5.3. 121 Chapter VII, sections 4.2 and 4.3.



concluding remarks295

likely need assistance from international humanitarian organisations.122 Collaboration with experts in the areas of food security, education, social security systems, housing, etc. could respectively help to operationalise the complementary relationship of IHL and other ESC rights. Guidelines would also need to address questions related to the delivery of humanitarian assistance. While this study contributed to clarifying the obligations on the parties to the conflict under IHL and the ICESCR to accept offers of humanitarian assistance in certain conditions and to facilitate its rapid delivery, not all implications of adopting a human-rightsbased approach to humanitarian action could be discussed. A right to rights-based humanitarian assistance would arguably be an indirect consequence of the acceptance of the parallel applicability of IHL and the ICESCR, and its implications could be spelled out as part of future guidelines on the parallel application of IHL and IHRL.123 A right to rights-based humanitarian assistance would, for example, relate to the question about the more exact extent to which humanitarian organisations assume the implementation of states’ obligations flowing from the ICESCR and IHL in times of armed conflict. Ideally, it would promote humanitarian work that takes into account the long-term and systemic perspective inherent in ESC rights. It would build on local capacities and thereby help to prevent the creation of dependencies. It would also support the maintenance and development of accessible health, food, education, housing, water and social security systems that can ultimately be run by the respective authorities with the involvement of the affected population. Overall, well-conceived guidelines would recognise the need for flexibility in the parallel application of ESC rights and IHL due to the great variation in situations on the ground, affected individuals and actors involved. Nonetheless, guidelines to support relevant actors in assessing the relationship between IHL and ESC rights would give the parallel application of these bodies of law the predictability that is needed for it to have a practical impact.

122 Thoms and Ron (2007b). 123 The Sphere Charter (2011) could be an important source of inspiration in this context. However, guidelines would need to address not only humanitarian organisations, but first and foremost states and non-state armed groups as the primary duty-bearers under IHL and IHRL.

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2. UN Documents UN Security Council UNSC, The Situation in Chad, the Central African Republic and the Sub-region, S/RES/1923, 25 May 2010. UNSC, Reports of the Secretary-General on the Sudan, S/RES/1591, 29 March 2005. UNSC, On Violations of International Humanitarian Law in the Former Yugoslavia, S/RES/1019, 9 November 1995.

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UN General Assembly UNGA, The Situation in Afghanistan, A/RES/62/6, 13 December 2007. UNGA, The Machel Review 1996–2000—A Critical Analysis of Progress Made and Obstacles Encountered in Increasing Protection for War-Affected Children, A/55/749, 26 January 2001. UNGA, The Situation of Human Rights in the Republic of Bosnia and Herzegovina, the Republic of Croatia and the Federal Republic of Yugoslavia (Serbia and Montenegro), A/RES/50/193, 11 March 1996.

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b) Reports of UN Special Rapporteurs and Inquiry Commissions

Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Mr Anand Grover, A/65/255, 6 August 2010. Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health—Mission to India, Mr Paul Hunt, A/HRC/14/20/Add.2, 15 April 2010. Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Mr Paul Hunt, A/HRC/7/11, 31 January 2008. Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Mr Paul Hunt, A/HRC/4/28, 17 January 2007. Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Mr Paul Hunt, A/60/348, 12 September 2005. Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Mr Paul Hunt, E/CN.4/2003/58, 13 February 2003. Report of the Special Rapporteur on the Right to Food—The Role of Development Cooperation and Food Aid in Realizing the Right to Adequate Food: Moving from Charity to Obligation, Mr Olivier De Schutter, A/HRC/10/5, 11 February 2009. Report of the Special Rapporteur on the Right to Food—Building Resilience: A Human Rights Framework for World Food and Nutrition Security, Mr Olivier De Schutter, A/HRC/9/23, 8 September 2008, Annex II. Report of the Special Rapporteur on the Right to Food—Mission to Lebanon, Mr Jean Ziegler, A/HRC/2/8, 29 September 2006. Report of the Special Rapporteur on the Right to Food—Mission to the Occupied Palestinian Territories, Mr Jean Ziegler, E/CN.4/2004/10/Add.2, 31 October 2003. Report of the Special Rapporteur on the Right to Food, Mr Jean Ziegler, E/CN.4/2002/58, 10 January 2002. Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston; the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Paul Hunt; the Representative of the Secretary-General on Human Rights of Internally Displaced Persons, Walter Kälin; and the Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living, Miloon Kothari—Mission to Lebanon and Israel, A/HRC/2/7, 2 October 2006.

bibliography315 Combined Report of the Special Rapporteur on the Right to Health, the Special Representative of the Secretary-General for Children and Armed Conflict, the Special Rapporteur on Violence against Women, its Causes and Consequences, the Repre­ sentative of the Secretary-General on the Human Rights of Internally Displaced Persons, the Special Rapporteur on Adequate Housing, the Special Rapporteur on the Right to Food, the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, the Special Rapporteur on the Right to Education and the Independent Expert on the Question of Human Rights and Extreme Poverty on the Human Rights Situation in Palestine and Other Occupied Arab Territories, A/HRC/10/22, 20 March 2009. Report of the Special Rapporteur on the Right to Education—Right to Education in Emergency Situations, Mr Vernor Muñoz, A/HRC/8/10, 20 May 2008. Preliminary Report of the Special Rapporteur on the Right to Education, Ms Katarina Tomaševski, E/CN.4/1999/49, 13 January 1999. Report of the UN Special Rapporteur on the Right to Adequate Housing—The Right to Adequate Housing in Post-Disaster and Post-Conflict Reconstruction Processes, Ms Raquel Rolnik, A/HRC/16/42, 20 December 2010. Report of the Independent Expert on the Situation of Human Rights in the Sudan, Mohammed Chande Othman, A/HRC/14/41, 26 May 2010. Report of the Situation of Human Rights in Kuwait under Iraqi Occupation, prepared by Walter Kälin, Special Rapporteur of the Commission on Human Rights, E/CN.4/1992/26, 16 January 1992. Report of the Commission of Inquiry on Lebanon, pursuant to Human Rights Council resolution S-2/1, A/HRC/3/2, 23 November 2006. Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, A/HRC/17/44, 12 January 2012. Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, 25 January 2005, at: http://www.un.org/news/dh/sudan/com_inq _darfur.pdf [last accessed 19 September 2012]. Report of the International Commission of the Inquiry to Investigate all Alleged Violations of International Human Rights Law in the Libyan Arab Jamahiriya, A/HRC/17/44, 12 January 2012. Report of the Open-ended Working Group to Consider Options Regarding the Elaboration of an Optional Protocol to the ICESCR in its First Session, E/CN.4/2004/44, 15 March 2004. Report of the Open-ended Working Group to Consider Options Regarding the Elaboration of an Optional Protocol to the ICESCR on its Third Session, E/CN.4/2006/47, 14 March 2006. Report of the UN Secretary-General’s Panel of Experts on the Accountability in Sri Lanka, 21 March 2011, at: http://www.un.org/News/dh/infocus/Sri_Lanka/POE_Report_Full.pdf [last accessed 19 September 2012]. Report of the United Nations Fact-Finding Mission on the Gaza Conflict, A/HRC/12/48, 25 September 2009 (Goldstone Report).

c) Documents of the (Former) UN Sub-Commission on Human Rights

Sub-Commission on the Promotion and Protection of Human Rights, Working Paper on the Relationship Between Human Rights Law and International Humanitarian Law by Francoise Hampson and Ibrahim Salama, E/CN.4/Sub.2/2005/14, 21 June 2005. Sub-Commission on the Prevention of Discrimination and Protection of Minorities, The Right to Adequate Food and to Be Free from Hunger, Updated Study on the Right to Food, submitted by Asbjørn Eide, E/CN.4/Sub.2/1999/12, 28 June 1999. Sub-Commission on Prevention of Discrimination and Protection of Minorities, Final Report of the Special Rapporteur, Mr. Leandro Despouy, Question of Human Rights and States of Emergency, E/CN.4/Sub.2/1997/19/Add.1, 9 June 1997.

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Sub-Commission on the Prevention of Discrimination and Protection of Minorities, The Right to Adequate Food as a Human Right, Report submitted by Special Rapporteur Asbjørn Eide, E/CN.4/Sub.2/1987/23, 7 July 1987. Sub-Commission on Prevention of Discrimination and Protection of Minorities, Siracusa Principles on the Limitation and Derogation of Provisions in the Interna­ tional  Covenant on Civil and Political Rights, Annex, E/CN.4/1984/4, 1984 (Siracusa Principles). Sub-Commission on the Prevention of Discrimination and Protection of Minorities, The Individual’s Duties to the Community and the Limitations on Human Rights and Freedoms under Article 29 of the Universal Declaration of Human Rights, Study of the Special Rapporteur Ms Daes, E/CN.4/Sub.2/432/Rev.2, 1983.

d) Travaux préparatoires of the ICESCR

Summary Record of the 234th meeting of the UN Commission on Human Rights, E/CN.4/ SR.234, 2 July 1951. Summary Record of the 235th meeting of the UN Commission on Human Rights, E/CN.4/ SR.235, 2 July 1951. Summary Record of the 236th meeting of the UN Commission on Human Rights, E/CN.4/ SR.236, 2 July 1951. Summary Record of the 270th meeting of the UN Commission on Human Rights, E/CN.4/ SR.270, 14 May 1952. Summary Record of the 271st meeting of the UN Commission on Human Rights, E/CN.4/ SR.271, 14 May 1952. Summary Record of the 272nd meeting of the UN Commission on Human Rights, E/CN.4/ SR.272, 13 May 1952. Summary Record of the 273rd meeting of the UN Commission on Human Rights, E/CN.4/ SR.273, 14 May 1952. Summary Record of the 274th meeting of the UN Commission on Human Rights, E/CN.4/ SR.274, 21 May 1952. Summary Record of the 275th meeting of the UN Commission on Human Rights, E/CN.4/ SR.275, 19 May 1952. Summary Record of the 306th meeting of the UN Commission on Human Rights, E/CN.4/ SR.306, 6 June 1952. Summary Record of the 307th meeting of the UN Commission on Human Rights, E/CN.4/ SR.307, 6 June 1952. Summary Record of the 308th meeting of the UN Commission on Human Rights, E/CN.4/ SR.308, 6 June 1952.

Human Rights Committee a) General Comments

HRCttee in its General Comment 6—The Right to Life, 30 April 1982. HRCttee, General Comment 16—The Right to Respect of Privacy, Family, Home and Correspondence, and Protection of Honour and Reputation, 8 April 1988. HRCttee, General Comment 19—Protection of the Family, the Right to Marriage and Equality of the Spouses, 27 July 1990. HRCttee, General Comment 22—The Right to Freedom of Thought, Conscience and Religion, CCPR/C/21/Rev.1/Add.4, 30 July 1993. HRCttee, General Comment 27—The Right to Freedom of Movement, CCPR/C/21/Rev.1/ Add.9, 2 November 1999. HRCttee, General Comment 29—States of Emergency, CCPR/C/21/Rev.1/Add.11, 31 August 2001.

bibliography317 HRCttee, General Comment 31—The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, CCPR/C/21/Rev.1/Add.13, 26 May 2004.

b) State Reports

HRCttee, Third Periodic Report—USA, Annex I, CCPR/C/USA/3, 28 November 2005. HRCttee, Fourth Periodic Report—USA, CCPR/C/USA/4, 22 May 2012. HRCttee, Initial Report—Tajikistan, CCPR/C/TJK/2004/1, 11 April 2005.

c) Concluding Observations

HRCttee, Concluding Observations—Colombia, CCPR/CO/80/COL, 26 May 2004. HRCttee, Concluding Observations—Democratic Republic of the Congo, CCPR/C/COD/3, 26 April 2006. HRCttee, Concluding Observations—Georgia, CCPR/C/GEO/CO/3, 15 November 2007. HRCttee, Concluding Observations—Israel, CCPR/C/ISR/CO/3, 3 September 2010. HRCttee, Concluding Observations—Moldova, CCPR/MDA/CO/2, 29 October 2009. HRCttee, Concluding Observations—UK, CCPR/C/GBR/CO/6, 30 July 2008. HRCttee, Concluding Observations—USA, CCPR/C/USA/CO/3/Rev1, 18 December 2006.

d) Summary Records

HRCttee, Summary Record of the 1675th Meeting - Israel, CCPR/C/SR.1675, 21 July 1998.

Committee on Economic, Social and Cultural Rights a) General Comments

CESCR, General Comment 3—The Nature of States Parties’ Obligations, contained in document E/1991/23, 14 December 1990. CESCR, General Comment 4—The Right to Adequate Housing, contained in document E/1992/23, 13 December 1991. CESCR, General Comment 7—Rights to Adequate Housing: Forced Evictions, contained in document E/1998/22, Annex IV, 20 May 1997. CESCR, General Comment 8—Economic Sanctions and Economic, Social and Cultural Rights, E/C.12/1997/8, 12 December 1997. CESCR, General Comment 12—The Right to Adequate Food, E/CN.12/1999/5, 12 May 1999. CESCR, General Comment 13—The Right to Education, E/C.12/1999/10, 8 December 1999. CESCR, General Comment 14—The Right to the Highest Attainable Standard of Health, E/C.12/2000/4, 11 August 2000. CESCR, General Comment 15—The Right to Water, E/C.12/2002/11, 20 January 2003. CESCR, General Comment 17—Right of Everyone to Benefit from the Protection of the Moral and Material Interests Resulting from any Scientific, Literary or Artistic Production of which he is the Author, E/C.12/GC/17, 12 January 2006. CESCR, General Comment 18—The Right to Work, E/C.12/GC/18, 6 February 2006. CESCR, General Comment 19—The Right to Social Security, E/C.12/GC/19, 4 February 2008.

b) State Reports

CESCR, Initial Report—Algeria, E/1990/6/Add.26, 28 July 2000. CESCR, Third and Fourth Periodic Report—Algeria, E/C.12/DZA/4, 6 January 2009. CESCR, Second Periodic Report—Azerbaijan, E/1990/6/Add.37, 1 December 2003. CESCR, Second Periodic Report—Brazil, E/C.12/BRA/2, 28 January 2008. CESCR, Combined Initial-Third Reports—Chad, E/C.12/TCD/3, 13 January 2009. CESCR, Third Periodic Report—Chile, E/1995/104/Add.26, 14 July 2003.

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CESCR, Second Periodic Report—Ecuador, E/1990/6/Add.36, 20 December 2002. CESCR, Initial Report—Egypt, E/1990/5/Add.38, 30 June 1998. CESCR, Combined Second-Fifth Periodic Reports—India, E/C.12/IND/5, 1 March 2007. CESCR, Second Periodic Report—Israel, E/1990/6/Add.32, 16 October 2001. CESCR, Initial Report—Kazakhstan, E/C.12/KAZ/1, 8 June 2009. CESCR, Initial Report—Kuwait, E/1990/5/Add.57, 20 November 2003. CESCR, Initial Report—Kyrgyzstan, E/1990/5/Add.42, 16 February 1999. CESCR, Initial Report—Latvia, E/1990/5/Add.70, 21 September 2005. CESCR, Initial Report—Malta, E/1990/5/Add.58, 26 May 2003. CESCR, Third Periodic Report—Mexico, E/1994/104/Add.18, 27 January 1998. CESCR, Third Periodic Report—Morocco, E/1994/104/Add.29, 17 January 2005. CESCR, Second Periodic Report—Nepal, E/C.12/NPL/2, 7 August 2007. CESCR, Third Periodic Report—New Zealand/Tokelau, E/C.12/NZL/3, 17 January 2011. CESCR, Initial Report—People’s Republic of China, reporting on the implementation of the ICESCR in Macao Special Administrative Region, E/1990/5/Add.59, 4 March 2004. CESCR, Initial Report—Peru, E/1990/5/Add.29, 17 June 1996. CESCR, Combined Second, Third and Fourth Periodic Reports—Philippines, E/C.12/ PHL/4, 7 September 2007. CESCR, Third Periodic Report—Portugal, E/1994/104/Add.20, 22 May 1998. CESCR, Fifth Periodic Report—Russian Federation, E/C.12/RUS/12, 25 January 2010. CESCR, Initial Report—Serbia and Montenegro, E/1990/5/Add.61, 26 November 2003. CESCR, Initial Report—Slovenia, E/1990/5/Add.62, 26 May 2006. CESCR, Initial Report—Switzerland, E/1990/5/Add.33, 18 September 1998. CESCR, Second and Third Periodic Report—Switzerland, E/C.12/CHE/2–3, 17 July 2009. CESCR, Initial Report—Tajikistan, E/C.2/TJK/1, 31 May 2006. CESCR, Initial-Third Periodic Report — Tanzania, E/C.12/TZA/1-3, 28 March 2011. CESCR, Initial Report—Turkey, E/C.12/TUR/1, 28 January 2009. CESCR, Initial Report—Turkmenistan, E/C.12/TKM/1, 20 October 2010. CESCR, Fifth Periodic Report—Ukraine, E/C.12/UKR/5, 14 August 2006. CESCR, Fifth Periodic Report—United Kingdom, E/C.12/GBR/5, 31 January 2008. CESCR, Document submitted by UNMIK, E/C.12/UNK/1, 15 January 2008. CESCR, Second Periodic Report—Venezuela, E/1990/6/Add.19, 8 January 1999.

c) Concluding Observations

CESCR, Concluding Observations—Afghanistan, E/C.12/AFG/CO/2–4, 7 June 2010. CESCR, Concluding Observations—Albania, E/C.2/ALB/CO/1, 24 November 2006. CESCR, Concluding Observations—Algeria, E/C.12/1/Add.71, 30 November 2001. CESCR, Concluding Observations—Algeria, E/C.12/DZA/CO/4, 7 June 2010. CESCR, Concluding Observations—Angola, E/C.12/AGO/CO/3, 1 December 2008. CESCR, Concluding Observations—Armenia, E/C.12/1/Add.39, 8 December 1999. CESCR, Concluding Observations—Australia, E/C.12/AUS/CO/4, 12 June 2009. CESCR, Concluding Observations—Bolivia, E/C.12/BOL/CO/2, 8 August 2008. CESCR, Concluding Observations—Bosnia and Herzegovina, E/C.12/BHI/CO/1, 14 January 2006. CESCR, Concluding Observations—Cambodia, E/C.12/KHM/CO/1, 12 June 2009. CESCR, Concluding Observations—Chad, E/C.12/TCD/CO/3, 16 December 2009. CESCR, Concluding Observations—China (Hong Kong Special Administrative Region (HKSAR)), E/C.12/1/Add.58, 21 May 2001. CESCR, Concluding Observations—Colombia, E/C.12/1/Add.74, 6 December 2001. CESCR, Concluding Observations—Colombia, E/C.12/COL/CO/5, 7 June 2010. CESCR, Concluding Observations—Cyprus, E/C.12/1/Add.28, 4 December 1998. CESCR, Concluding Observations—Cyprus, E/C.12/CYP/CO/5, 12 June 2009. CESCR, Concluding Observations—Democratic People’s Republic of Korea, E/C.12/1/ Add.95, 12 December 2003.

bibliography319 CESCR, Concluding Observations—Dominican Republic, E/C.12/DOM/CO/3, 26 November 2010. CESCR, Concluding Observations—Democratic Republic of the Congo, E/C.12/COD/CO/4, 20 November 2009. CESCR, Concluding Observations—Egypt, E/C.12/1/Add.44, 23 May 2000. CESCR, Concluding Observations—El Salvador, E/C.12/SLV/CO/2, 27 June 2007. CESCR, Concluding Observations—France, E/C.12/CO/FRA/CO/3, 9 June 2008. CESCR, Concluding Observations—Guatemala, E/C.12/1/Add.3, 28 May 1996. CESCR, Concluding Observations—Guatemala, E/C.12/1/Add.93, 12 December 2003. CESCR, Concluding Observations—India, E/C.12/IND/CO/5, 8 August 2008. CESCR, Concluding Observations—Iraq, E/C.12/1/Add.17, 12 December 1997. CESCR, Concluding Observations—Israel, E/C.12/1/Add.27, 4 December 1998. CESCR, Concluding Observations—Israel, E/C.12/1/Add.69, 31 August 2001. CESCR, Concluding Observations—Israel, E/C.12/1/Add.90, 26 June 2003. CESCR, Concluding Observations—Israel, E/C.12/ISR/CO/3, 16 December 2011. CESCR, Concluding Observations—Jordan, E/C.12/1/Add.46, 1 September 2000. CESCR, Concluding Observations—Kazakhstan, E/C.12/KAZ/CO/1, 7 June 2010. CESCR, Concluding Observations—Kyrgyzstan, E/C.12/1/Add.49, 1 September 2000. CESCR, Concluding Observations—Lebanon, E/C.12/1993/10, 9 June 1993. CESCR, Concluding Observations—Madagascar, E/C.12/MDG/CO/2, 16 December 2009. CESCR, Concluding Observations—Moldova, E/C.12/1/Add.91, 12 December 2003. CESCR, Concluding Observations—Mongolia, E/C.12/1/Add.47, 1 September 2000. CESCR, Concluding Observations—Nepal, E/C.12/NPL/CO/2, 16 January 2008. CESCR, Concluding Observations—The Netherlands, E/C.12/NDL/CO/4–5, 9 November 2010. CESCR, Concluding Observations—Nicaragua, E/C.12/NIC/CO/4, 28 November 2008. CESCR, Concluding Observations—Philippines, E/C.12/1995/7, 7 June 1995. CESCR, Concluding Observations—Philippines, E/C.12/PHL/CO/4, 1 December 2008. CESCR, Concluding Observations—Poland, E/C.12/POL/CO/5 2 December 2009. CESCR, Concluding Observations—Republic of Korea, E/C.12/KOR/CO/3, 17 December 2009. CESCR, Concluding Observations—Russian Federation, E/C.12/1/Add.94, 12 December 2003. CESCR, Concluding Observations—Russian Federation, E/C.12/RUS/Co/5, 20 May 2011. CESCR, Concluding Observations—Sri Lanka, E/C.12/1/Add.24, 16 June 1998. CESCR, Concluding Observations—Sri Lanka, E/C.12/LKA/CO/2–4, 9 December 2010. CESCR, Concluding Observations—Sudan, E/C.12/1/Add.48, 1 September 2000. CESCR, Concluding Observations—Sweden, E/C.12/SWE/CO/5, 1 December 2008. CESCR, Concluding Observations—Syrian Arab Republic, E/C.12/1/Add.63, 24 September 2001. CESCR, Concluding Observations—Tajikistan, E/C.12/TJK/CO/1, 24 November 2006. CESCR, Concluding Observations—Turkmenistan, E/C.12/TKM/CO/1, 13 December 2011. CESCR, Concluding Observations—United Kingdom, E/C.12/GBR/CO/5, 2 June 2009. CESCR, Concluding Observations—Uruguay, E/C.12/URY/CO/3–4, 1 December 2010. CESCR, Concluding Observations—Uzbekistan, E/C.12/UZB/CO/1, 24 January 2006. CESCR, Concluding Observations—Yemen, E/C.12/YEM/CO/2, 1 June 2011. CESCR, Concluding Observations—Zambia, E/C.12/1/Add.106, 23 June 2005.

d) List of Issues

CESCR, List of Issues—Kyrgyzstan, E/C.12/Q/KYRG/1, 10 December 1999. CESCR, List of Issues—Lichtenstein, E/C.12/Q/LIE/1, 14 December 2004.

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e) Statements and other Documents

CESCR, Guidelines on Treaty Specific Documents to be Submitted by State Parties under Articles 16 and 17 of the ICESCR, E/C.12/2008/2, 24 March 2009. CESCR, Compilation of Guidelines on the Form of and Content of Reports, HRI/GEN/2/ Rev.5, 29 May 2008. CESCR, Revised General Guidelines Regarding the Form and Contents of Reports to Be Submitted by States Parties under Articles 16 and 17 of the ICESCR, E/C.12/1991/1, 17 June 1991. CESCR, An Evaluation of the Obligations to Take Steps to the “Maximum of Available Resources” under an Optional Protocol to the Covenant, Statement, E/C.12/2007/1, 21 September 2007. CESCR, Statement on Poverty and the ICESCR, E/C.12/2001/10, 10 May 2001. CESCR, Statement on Globalisation and Economic, Social and Cultural Rights, May 1998, at: http://www2.ohchr.org/english/bodies/cescr/statements.htm [last accessed 19 September 2012].

Committee on the Rights of the Child a) General Comments

CRCttee, General Comment 1—Article 29(1): The Aims of Education, CRC/GC/2001/1, 17 April 2001. CRCttee, General Comment 7—Implementing Child Rights in Early Childhood, CRC/C/ GC/7/Rev.1, 20 September 2006.

b) Concluding Observations

CRCCttee, Concluding Observations—Democratic Republic of the Congo, CRC/C/15/ Add.153, 9 July 2001. CRCCttee, Concluding Observations—Pakistan, CRC/C/PAK/CO/3–4, 15 October 2009.

Committee on the Elimination of Discrimination against Women CEDAWCttee, Concluding Observations—Israel, CEDAW/C/ISR/CO/3, 22 July 2005. CEDAWCttee, Concluding Observations—Sri Lanka, A/57/38 (Part I), 7 May 2002.

Committee on the Elimination of Racial Discrimination CERDCttee, Concluding Observations—Israel, CERD/C/304/Add.45, 30 March 1998. CERDCttee, Concluding Observations—USA, CERD/C/USA/CO/6, 8 May 2008.

International Law Commission Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law—Report of the Study Group of the International Law Commission, finalised by Martti Koskenniemi, A/CN.4/L.682, 13 April 2006 (ILC Study). Report of the International Law Commission on the Work of its 32nd Session, in Yearbook of the International Law Commission, Vol II, part II, 1980, A/CN.4/SER.A/1980/Add.1 (Part 2). Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries, in ILC, Report on the Work of the 53rd Session (23 April—1 June and 2 July—10 Aug 2001), GA Official Records, 56th session, Supplement No 10, A/56/10.

bibliography321 Survey on ‘Force Majeure’ and ‘Fortuitous Events’, Yearbook of the International Law Commission, 1978, Vol II, Part One.

International Labour Organisation Report of the Commission appointed under Article 26 of the Constitution of the ILO to examine the complaints concerning the Observance by Poland of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Rights to Organise and Collective Bargaining Convention, 1949 (No. 98), International Labour Office, Official Bulletin, Special Supplement, Vol. LXVII, Series B, 1984. Report of the Commission appointed under Article 26 of the Constitution of the ILO to examine the complaints concerning the observance by Greece of the Freedom of Association and Right to Organise Convention, 1948 (No. 87), and of the Right to Organise and Collective Bargaining Convention, 1949 (No. 89), International Labour Office, Official Bulletin, Special Supplement, Vol. LVI, No 2, 1971. Commentary on the ILO Social Security (Minimum Standards) Convention, 1952 (No. 102), at: http://www.ilo.org/public/english/protection/secsoc/areas/legal/conv102.htm [last accessed 17 September 2012].

Other UN Documents Human Rights in Armed Conflict, Resolution XXIII adopted by the UN International Conference on Human Rights, Teheran, 12 May 1968, at: http://www.icrc.org/ihl.nsf/ FULL/430?OpenDocument [last accessed 17 September 2012]. OHCHR, Report on Indicators for Promoting and Monitoring the Implementation of Human Rights, HRI/MC/2008/3, 6 June 2008. UNEP, From Conflict to Peace Building—The Role of Natural Resources and the Environment, (2009), at: http://www.unep.org/pdf/pcdmb_policy_01.pdf [last accessed 17 September 2012]. WHO/UNICEF, Report on a Special Mission to Iraq, S/22328, 4 March 1991.

3. Other Documents/Reports Chatham House, Report of an Expert Meeting which Assessed Procedural Criticisms made of the UN Fact-Finding Mission on the Gaza Conflict (The Goldstone Report), 27 November 2009, at: http://www.chathamhouse.org/publications/papers/view/109211 [last accessed 17 September 2012]. CID, Report of the Meeting of Experts on Rights not Subject to Derogations during States of Emergency and Exceptional Circumstances, (17–19 May 1995), printed in Premont, Stenresen, and Oseredczuk (eds.), Non-derogable Rights and States of Emergency (Brussels: Association for International Consultants on Human Rights (CID), 1996), pp. 27–49. Code of Conduct for The International Red Cross and Red Crescent Movement and NGOs in Disaster Relief, at: http://www.ifrc.org/Docs/idrl/I259EN.pdf [last accessed 17 September 2012]. Collection of Codes of Conduct Issued by Armed Groups, in: (2011) 93 IRRC 483. Explanatory Report on the Revised European Social Charter (1996), ETS No 163, at: http:// conventions.coe.int/treaty/en/Reports/HTML/163.htm [last accessed 17 September 2012]. IFRC, Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance, Doc 30IC/07/R4 annex, adopted by the

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INDEX acceptability and the distribution of humanitarian assistance 106, 202 of health facilities 105 religious and cultural 105 accessibility and obligations to build a health system 105; see also right to health geographic 104–105, 230 physical, economic and nondiscriminatory 104–105, 286 adequacy of steps taken to implement ESC rights 69, 103, 285 Additional Protocol I (AP I) Art. 8(a) see wounded and sick Art. 8(c) and (e) see medical personnel Art. 8(e) see medical units Art. 8(f)-(g) see medical transports Art. 15 see medical personnel Art. 45 see POWs Art. 48 see distinction Art. 51(5)(b) see proportionality Art. 52(2) see distinction and military objectives Art. 70(2) see humanitarian assistance Art. 75 see fundamental guarantees Art. 77(2) see children and CRC Art. 57(2)(a)(iii) see proportionality Additional Protocol II (AP II) Art. 1 see threshold of application of AP II Art. 4 see fundamental guarantees Art. 4(3)(a) see education Art. 5 see fundamental guarantees and internment Art. 6 see fundamental guarantees and internment Art. 7(2) see wounded and sick Art. 8 see pillage and wounded and sick Art. 9(1) see medical personnel Art. 10 see medical activities and confidentiality of medical records Art. 11 see medical transport Art. 14 see starvation Art. 13 see direct participation in hostilities, civilians, distinction and proportionality Art. 18 see humanitarian assistance

drafting history of see travaux préparatoires relation to common Art. 3 see common Art.3 threshold of application of 10, 39, 42–43, 47–50, 64–65, 172 African Charter on Human and Peoples’ Rights absence of a derogation clause 140–142 application to NIACs 17, 22 African Commission on Human and Peoples’ Rights and IHL 15–17 jurisprudence on derogations 142 Alma-Ata Declaration definition of ‘primary health care’ 213 ambulances see medical transports American Convention on Human Rights application to NIACs 16 derogations from 138–144 armed conflict see also NIAC and IAC effects on economic performance 191, 195 public health effects of direct 1, 175, 181–182, 191–192, 195, 203–204, 206–217, 234, 243, 284–50, 267–268, 281, 288 in high-income countries 214–215 in low-income countries 180, 152, 178, 180, 192, 281 indirect 1, 176, 179–182, 191–191, 195, 203–204, 217–224, 243, 248–250, 267–268, 281, 285–288 availability of essential health care facilities 103– 104; see also right to health of facilities, goods, services or programmes 103–104 Battle of Solferino 192–193 benchmarks international 80, 89, 89n103 national 78, 82, 89n103, 108 bridges see also military objectives as ‘dual-use’ objects 151–153, 158–159, 170, 177–179, 186, 279 attacks on long-term effects of 151, 170, 178, 180, 163–164, 276

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children health care for 102, 204; see also health care protection in armed conflicts 18–19, 138, 145n145, 181, 200, 248, 278, 280–283 civilians ‘definition’ in IHL of NIACs 55–57, 60 IHL prohibition of starvation of 152, 240–242, 267; see also starvation civilian objects 52, 56–58, 60, 150, 160–162, 173–177, 183, 295, 275n24; see also proportionality and ‘dual-use’ objects combatants in IHL of IACs 33, 55, 62 in NIACs see direct participation in hostilities Committee on Economic, Social and Cultural Rights (CESCR) and minimum core obligations see minimum core obligations/rights and progressive realisation of ESC rights see progressive realisation approach to derogations from the ICESCR 140–146 approach to limitations to ESC rights see limitations approach to retrogressive measures see retrogressive measures General Comment 3 75–76, 78, 126, 143, 212; see also minimum core obligations/rights General Comment 4 285; see also housing and shelter General Comment 7 123, 127; see also housing and shelter General Comment 12 79n57, 103n175, 168n86, 170n95, 234–244, 277–278, 284; see also food General Comment 14 75–76, 79, 83, 86, 92, 105, 119, 169, 179, 193, 212–213, 221, 228, 257, 265; see also right to health General Comment 15 73, 125; see also water General Comment 19 85, 288; see also social security on obligations to provide humanitarian assistance 101, 104, 145, 243–44, 247, 249, 256–57, 264–265, 281; see also humanitarian assistance reviewing states’ allocation of resources 102–102, 132; see also resources

state reporting process to the 6, 78, 112 Statement on ‘Maximum available Resources’ 122, 130n88, 131 Statement on Globalisation 119n35 Statement on Poverty 76, 82, 90, 119 common Article 3 (GC I-IV) see also fundamental guarantees customary status 45, 63, 42 drafting history 42; see also travaux préparatoires humane treatment 53, 55; see also humanity protection of the wounded and sick under see wounded and sick threshold of application 47–49 compliance with IHL 3, 5, 43, 49, 52, 54, 63, 150, 185, 210, 290; see also equality of belligerents and non-state armed groups with IHRL 79, 82, 89, 113, 150 confidentiality of medical records see also medical activities protection under IHL 231–232 protection under the right to health 232–233 consultation process see participation Convention on Cluster Munitions and obligations of non-state armed groups 19, 292 and the relationship between IHL and IHRL 19, 212, 224, 236, 292 Art.5(1) see rehabilitative care Convention on the Elimination of All Forms of Racial Discrimination 16 Convention on the Rights of the Child see also children Optional Protocol on the Involve­ ment  of Children in Armed Conflict 18–19, 30n111 counterinsurgency and strategies to gain support of the civilian population 41, 171–172 and the protection of human rights 120, 171–172, 194 US Field Manual 2007 on 171–172 culture protection of cultural property in IHL 288 right to participate in cultural life 105– 106, 224, 288 customary IHL see ICRC Study

index325 ‘democratic society’ 120–123, 134–135, 147, 196, 200 derogations and Art. 15 ECHR 138–139, 144 and Art. 27 ACHR 138–139, 144 and Art. 4 ICCPR 138–139, 144 and state reports to the CESCR 113, 142–143, 146 and the travaux préparatoires of the ICESCR 137 approach of the CESCR to see CESCR definition 137 from Art. 6–8 ICESCR 142, 144 from ESC rights 137–143 from ILO Conventions 140–143; see also ILO from the ESC/RESC 140 proportionality of 139n118; see also Art. 15 ECHR, Art. 27 ACHR and Art. 4 ICCPR direct participation in hostilities ICRC Interpretative Guidelines on the Notion of 56 persons taking 55–56, 259 disability and the protection of ‘wounded and sick’ in IHL 204–205, 248 rehabilitative care for persons with see rehabilitative care disease see also right to health chronic 191, 204–205, 217, 221n145 endemic and epidemic 1, 169, 179, 181, 213–219, 223 infectious 83, 169, 179, 191–192, 204, 213, 217–222 distinction, principle of and non-state armed groups 57–58 between civilian objects and military objectives 56–58, 272; see also military objectives between civilians and combatants/ persons taking direct part in hostilities 16n23, 54–55, 60, 65, 272; see also direct participation in hostilities distinctive emblem 224, 233–234, 282 ‘dual-use’ objects ‘definition’ 151 destruction of and long-term effects on civilian life 175–183; see also armed conflict

and states’ obligations under the right to health 162, 170, 173, 179–183, 275–280 in industrialised countries 151 in low-income countries 152 economic, social and cultural rights see ICESCR and right to health education and humanitarian assistance 283–284 and military-target decisions 276, 279; see also military-target decisions minimum core obligations flowing from the right to 75, 83, 96–97, 106n191, 124, 138, 213, 278–288, 295 on health-related matters 83, 169, 213, 223 parallel application of IHL and the right to 195, 278–284, 286–288 protection under IHL 275, 283, 286–287 electricity systems as ‘dual-use’ objects see ‘dual-use’ objects destruction of and civilian access to food and health care 152, 170–172, 178–182 in the 1991 Gulf War 152, 158, 179, 181 emergency medical treatment see also right to health and Art. 28 Convention on Migrant Workers 215 and health systems 193, 206 and the ECHR/ECtHR see ECtHR and the right to life 215–216 in high-income countries 215 in IHL 192–194, 205, 211, 236 in low-income countries 214–214 in national law see national courts under the right to health 169, 193–194, 206, 213–214, 236 equality of belligerents see also ius in bello and non-state armed groups see non-state armed groups as a principle of IHL 61–63, 183–185, 290 effects of the parallel application of IHL and IHRL on the 49, 167n84, 184 relevance for ensuring compliance with IHL 63, 185, 290 European Code of Social Security 87 European Committee of Social Rights (ECSR) and derogations 140

326

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and limitations to ESC rights 117–118, 126, 128; see also limitations and minimum core obligations 86–87, 108, 126; see also minimum core obligations and obligation to gradually reduce homelessness 99; see also housing and obligations to respect, protect and fulfil ESC rights 73 reviewing allocation of resources 101 European Convention on Human Rights (ECHR) application to territories outside a states’ control 145, 198–199 derogations from the see derogations obligations to safeguard lives under the 209–210 European Court of Human Rights (ECtHR) and ‘dynamic’ or ‘evolutive’ interpretation 31 and IHL 16–17, 150n6 and social security see social security and the protection of minimum ESC rights 86 and the right to emergency medical treatment 215 proportionality of limitations 128–129 understanding of ‘determined by law’ 123–124 understanding of a ‘democratic society’ see democratic society European Social Charter/Revised European Social Charter (ESC/RESC) and minimum core obligations see ECSR Art. 5 ESC 118 Art. 6 ESC 118 Art. 4(1) ESC/RESC 89; see also housing Art. 12(2) RESC see social security Art. 13(1) ESC/RESC see social security Art. 30 ESC see derogations Art. 31(1) ESC see limitations Art. 31(2) RESC see housing Art. G(1) RESC see limitations limitations to see ECSR and limitations food see also underlying determinants of health and military-target decisions 151–152, 161, 243, 275–276; see also militarytarget decisions and the provision of humanitarian assistance 104–106, 168n86, 178, 262, 265–266, 278

minimum core obligations flowing from the right to 75, 93n122, 96–97, 127, 195, 219–220, 274, 277–288 force majeure, doctrine of 141–142 fundamental guarantees in IHL 20 ‘general welfare’ 116–120, 128–129, 132–133, 135–136, 196–201, 215–216, 265 Goldstone Report 160–162, 277 guidelines on internal displacement 293 on the parallel application of IHL and IHRL 293–295 health care effects of armed conflicts on see armed conflict emergency see emergency medical treatment essential see right to health and Alma-Ata Declaration for children 83, 169, 181, 145n145, 219, 222–223, 235 maternal 169, 179, 181, 217–219, 222–223, 235 mental see mental health primary see right to health and Alma-Ata Declaration reproductive 83, 169, 181, 219, 223 secondary 214, 281 tertiary 214, 281 HIV/AIDS 88, 119, 287 housing see also shelter legal security of tenure and the right to 285–286 minimum core obligations flowing from the right to 75, 127–128, 275 non-core obligations flowing from the right to 97–99, 274 parallel application of IHL and the right to 250, 277–279, 283–288 humanitarian actors (affected) states’ obligations towards 207, 221–223, 248, 254, 256–257, 260–264 neutrality of see neutrality non-state armed groups’ obligations towards see non-state armed groups obligations to facilitate the work of 168, 260–264 obligations under IHL and the ICESCR 168, 182, 203, 216, 248, 251–252, 260–265

index327 third states’ obligations towards 244, 256–257 humanitarian assistance and customs clearance 261 and military-target decisions see military-target decisions and obligations under the right to health see right to health and starvation see starvation and taxation 261 and ‘undue hardship threatening the survival of the civilian population’ 240–241, 238 arrangements for the delivery of 144, 255, 261–263 dependency on 170, 278 exclusively humanitarian and impartial in nature and obligation to make ‘no subjective distinction’ 248–253 in the ICJ Nicaragua judgment 247 neutrality of see neutrality obligation to facilitate delivery of 260–264 obligations of non-state armed groups see humanitarian actors and non-state armed groups obligations to give consent to the delivery of 240–258 rights-based approaches to 232, 253, 268, 295 states’ right to control 264–266 without any adverse distinction see non-discrimination humanitarian objects definition 258 obligation to respect and protect 258–259 humanitarian organisations see humanitarian actors humanitarian relief personnel authorisation of 258–259 obligation to facilitate their work see humanitarian assistance obligation to respect and protect 234, 254–255, 258–259, 283, 289 humanity, principle of and humane treatment see common Art.3 balancing against military necessity see military necessity in IHL 28, 31–36, 53–54, 58, 174, 183

Human Rights Committee and IHL 18, 21 General Comment 27 126, 129 interpretation of ‘democratic society’ see democratic society interpretation of ‘determined by law’ see limitations proportionality of limitations to human rights see limitations and proportionality ICC Statute and thresholds of application of IHL of NIACs 48–50 Art. 8(2)(c) and (e) 43, 47–48 Art. 8(2)(c)(i) 207; see also wounded and sick Art. 8(2)(d) and (f) 48, 272 Art. 8(2)(e)(i) 55; see also distinction Art. 8(2)(e)(ii) and (iv) 225; see also medical personnel, medical units and medical transports Art. 8(2)(e)(iii) 259; see also humanitarian relief personnel ICRC and the principle of neutrality see neutrality promoting codification of IHL of NIACs 41–42 Study on Customary IHL see ICRC Study ICRC Study on Customary IHL (ICRC Study) and IHRL 9, 20 and the distinction between IACs and NIACs 9, 46 and the threshold of application of customary IHL of NIACs 48–50 opinio iuris in the 9, 47 rule 1 55; see also distinction rule 7 56; see also distinction rule 8 56n103, 152n14, 157–158, 164n68; see also military objectives rule 14 59n116, 163n66 and n67, 173n107; see also proportionality rule 25 193n4, 206n56, 225n165, 277, 229, 237; see also medical personnel rule 26 193n4, 206n56, 323; see also medical personnel and confidentiality rules 28–29 193n4, 225n116 and 167, 230, 237; see also medical personnel rules 31–32 155n27, 241, 254, 258; see also humanitarian assistance

328

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rule 55 241, 245–256, 254, 260; see also humanitarian assistance rule 56 258, 260, 265, 269; see also humanitarian relief personnel rules 99–100 49, 63, 207n58; see also internment rules 109–111 204n45, 205–206, 207n62, 208n109; see also wounded and sick and distinction rules applicable to NIACs 20 state practice in the 9, 20, 44–46, 64 indicators global see international international 80, 84, 89–90 national 89–90 regional European 89 indivisibility of ESC and civil and political rights 69–71 infrastructure see also ‘dual-use’ objects destruction of 1, 153, 161, 165, 172, 177–178, 197, 263, 276–277 reconstruction of see reconstruction immunisation campaigns 179, 181, 204, 221, 236 Inter-American Commission on Human Rights protection of the right to health in armed conflicts 207 references to IHL 16–17, 48, 207 Inter-American Court of Human Rights protection of the right to health in armed conflicts 17, 207 internally displaced persons humanitarian assistance for 222, 257, 285, 293 guidelines on see guidelines international armed conflict ‘definition’ 47 distinction from NIACs 4, 29–30, 47 International Conference on Human Rights (Teheran 1968) 14 International Court of Justice and humanitarian assistance (Nicaragua judgment) 246–247, 252 and the lex specialis maxim see lex specialis applying IHL and IHRL 15–16, 21–22 provisional measures ordered by the 15–16 International Covenant on Civil and Political Rights and the right to control humanitarian assistance 265–266

Art. 4 see derogations Art. 6(1) 22 Art. 12 126, 260, 265–266 Arts. 21–22 see ‘democratic society’ derogations from see derogations extraterritorial application of the 21 interpretation by the ICJ 22, 26 International Covenant on Economic, Social and Cultural Rights (ICESCR) see also right to health application to territories under the control of non-state armed groups 144–145, 154–155, 167, 198, 262, 210, 230, 245, 251, 256–257, 269 Art. 2(1) see progressive realisation and obligations Arts. 2(2) and 3 see non-discrimination Art. 4 see limitations Art. 8 see limitations and derogations Art. 12 see right to health Art. 13 see education derogations from the see derogations extraterritorial applicability 3, 51, 185, 294 international obligations under the 82, 84, 90–91, 125, 145, 244 justiciability of the 69, 71, 76–77, 85, 91, 95 obligations to respect, protect and fulfil the 70–74, 100, 107, 168 systemic objectives of the see right to health teleological interpretation of the 5, 8, 30–32, 36, 77–78, 274 travaux prèparatoires of the see travaux prèparatoires tripleAQ-framework to analyse obligations under the 102–106 International Criminal Tribunal for the Former Yugoslavia and the IHL principle of proportionality see proportionality and the principle of distinction see distinction and thresholds of application of IHL of NIACs 46–50 International humanitarian law (IHL) development of relationship with IHRL 13–15 general principles of 52–61 obligations to mitigate direct health consequences of armed conflicts under 206–216

index329 obligations to mitigate indirect health consequences of armed conflicts under 217–223 purpose and limits of 52 scope of application see AP II and common Art.3 and ICC Statute International Law Commission draft Articles on State Responsibility 151 Study on Fragmentation of International Law 23–35, 154–156 International Labour Organisation (ILO) and derogations from labour rights 140–144; see also derogations Convention 87 on Freedom of Association and the Right to Organise 140–144 Convention 98 on the Right to Organise and Collective Bargaining 140–144 Convention 102 concerning Minimum Standards of Social Security 87 internment in NIACs 49, 292–293 of POWs see POWs ius in bello see also IHL separation from ius ad bellum 52–53, 61–63, 166–167, 183–184 lex specialis maxim and other interpretation methods 29–33 and the omnipresence of general law 25–29, 154, 186, 273 and the principle of systemic integration 31–33 critique of the 34–35 easing tensions between IHL and the right to health 30, 150, 153–156, 275–280, function in situations of active combat 153–156, 275–280 rationale of the 22–23 relationality and contextuality of the 25–29, 192, 273 supporting complementarity of IHL and the right to health 22, 32–33, 192–193, 280–288 limitations and Art. 29(2) UDHR 117 and Art. 8 ICESCR 118 and relation between Arts. 4 and 2(1) ICESCR 129–135 and subsistence rights 93, 118, 127 rationale of 111–112 to ESC rights

and diversion of resources see resources and minimum core obligations 124– 28, 133–134, 202–203 and reporting guidelines of the CESCR 112–113, 146 and scarcity of resources see resources ‘compatible with the nature of these rights’ 124–128, 133–134, 195, 202–203 ‘determined by law’ 123–124, 134–135 ‘in a democratic society’ see ‘democratic society’ proportionality of 128–129, 135, 201–202 relation to retrogressive measures see retrogressive measures sole purpose of see ‘general welfare’ to the ESC/RESC 116–118 malnutrition 178–180, 191–192, 204, 250; see also food and underlying determinants of health marginalised and disadvantaged groups and individuals access to health facilities 168, 208–210, 221 access to humanitarian assistance 168, 249–250 and minimum core obligations 91, 208–209 obligation to pay special attention to 98, 104, 119 ‘wounded and sick’ as 208–209 ‘maximum available resources’ see resources medical activities neutrality of 232 protection of confidentiality of medical records see confidentiality protection under Art. 10 AP II 218, 231–233 medical personnel definition in IHL of IACs 227 definition in IHL of NIACs 227 freedom of movement of 230–231, 151, 204, 260–261, 265–266 obligation to recognise and authorise in IHL 228, 233–234 obligations to facilitate the work of 152, 229–233

330

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protection under the right to health 106, 228–229, 265; see also right to health respect for and protection of in IHL 218, 224–225, 227–234, 269, 282, 206n56 medical transports definition in IHL 225 obligations to facilitate their work 229–233 obligations to recognise and authorise in IHL 233–234 protection under the right to health see right to health respect for and protection of in IHL 150–151, 178, 206n56, 218, 224–234, 269, 282 medical units definition in IHL 225 obligations to facilitate their work 229–233 obligations to recognise and authorise in IHL 233–234 protection under the right to health see right to health respect for and protection of in IHL 206n56, 218, 225–234, 269, 282 mental health care 96, 203–204, 217, 223–224, 250 military-target decisions and humanitarian assistance 170, 177–178, 180 and long-term effects on public health 170, 173, 175–185 and reconstruction of civilian infrastructure see reconstruction and the separation of ius in bello from ius ad bellum see ius in bello as a two-step process in IHL 156 in counterinsurgency operations 171–173 integrating minimum core obligations under the ICESCR into the 162–163, 168–171, 177–179, 180–183 military advantage, definitive and reconstruction of civilian infrastructure see reconstruction anticipated from an ‘attack as a whole’ 164–165, 183 definition in IHL 163–165, 174–177 impact of the right to health on IHL definition of a 165–173, 177–180, 277 military necessity, principle of and the delivery of humanitarian assistance 210–211, 266

balancing against the principle of humanity 31, 33, 53, 58, 174, 183, 276–277 ‘definition’ in IHL 53–54, 162, 187 military objectives and ‘dual-use’ objects see bridges, electricity systems and ‘dual-use’ objects and the principle of proportionality see proportionality attacks on and obligations under the right to health 162–163, 168–171, 177–185; see also right to health and the delivery of humanitarian assistance 170, 177–178, 180 broad interpretation by US and Israel 158–162; see also Dahiya doctrine by location and by nature 157–158, 163 by purpose or use 150, 152, 157–159, 162–163, 187, 176 definition in IHL 157–165 distinction between ‘possible future use’ and ‘intended future use’ 158–160 in the Dahiya doctrine 160–161 minimum core approach and adjudication/justiciability of ESC rights see minimum core obligations/ rights and the creation of sustainable health systems see right to health and vital interests of individuals 75, 97, 127 normative justification of the 80, 83n78, 75, 96 potential of the 74–78 rationale of the 74–78 minimum core obligations/rights affordability see resources and access to goods and services 77, 92–94, 169, 188, 193, 205–208, 212–224, 244, 262, 265 and international obligations under the ICESCR see ICESCR and limitations to ESC rights see limitations and justiciability of ESC rights 76–77, 85, 91, 95 and marginalised and disadvantaged groups see marginalised and disadvantaged groups and military-target decisions see military-target decisions

index331 and procedural obligations under the ICESCR 94; see also limitations and progressive realisation 75, 77–86, 96–99 and retrogressive measures see retrogressive measures and scarcity of resources see resources and the teleological interpretation of human rights 77–78 and the prohibition of torture and inhuman and degrading treatment 94, 215 as the ‘limit of limits’ 75 flowing from the right to education see education flowing from the right to food see food flowing from the right to health see right to health flowing from the right to housing see housing in national courts see national courts internationally-defined 79, 82–91, 100, 125, 127, 153, 169, 179, 193–195, 202–203, 214–217, 219–223, 236, 244, 255, 264, 278, 281, 287 nationally-defined 79, 82–86, 91–95, 100, 125–129, 133–136, 144–145, 153, 169, 193–95, 202–203, 213–217, 221, 235 non-derogability of 145–146 pragmatic (national) see nationally-defined relationship to non-core obligations 96–100 universal see internationally-defined national courts and the minimum core approach to ESC rights 79, 92–94, 214–215, 97–99 decisions in the interpretation of international law 7–8 reviewing allocation of resources 99–102 necessity, doctrine of and derogations from treaties without a derogation clause 141–142 and ILO Commissions of Inquiry see derogations and ILO neutrality and human rights principles 252–253 of medical activities see medical activities of Red Cross/Red Crescent Societies 251 of the ICRC 251–252

non-core obligations and the availability of resources see resources ‘definition’ 79, 80, 96–100, 103–106 in situations of active combat 153, 170–171 relationship to minimum core obligations see minimum core obligations/rights under the right to health 169, 205–206, 216, 224–226, 274 non-discrimination as a principle of the ICESCR 91, 199–201, 215, 222, 248–253 in IHL 248–253 in the access to health care 72, 94, 105, 215, 222, 228–229 in the allocation/diversion of resources see resources in the provision of humanitarian assistance 247–253 non-international armed conflict see armed conflict, AP II and common Art.3 ‘definition’ (of ‘classical’) 3, 51, 46–50 distinction from IACs see IACs distinction from low-level internal violence 47–48 ‘new’ 50–51 upholding distinction between Art.3-type and AP-II-type see common Art.3 and AP II non-state armed groups and the principle of the equality of belligerents 5, 49, 61–63, 183–185, 290 capabilities to apply IHL and IHRL 4–5, 43, 45–46, 63, 184–185, 236, 249, 258, 264, 272, 289 control over territory 49, 144, 154–155, 230, 251 incentives to abide by IHL 45n40, 63, 183, 189 ‘legislation’ by 63n141, 232–233, 245n37, 264, 289 negotiations with 51n73, 196–199, 256 obligations to accept humanitarian assistance and toward humanitarian actors 191, 210–211, 241, 245, 247–248, 250, 255–256, 258, 261, 263–264, 289–290 obligations to respect and protect the wounded and sick 207, 232–233, 239 obligations under IHL 4, 9, 19, 21, 40, 43, 45–46, 49, 52, 57–58, 60–63, 162, 167,

332

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183–185, 289–293 see also obligations towards humanitarian actors and obligations to respect and protect the wounded and sick obligations under IHRL 4–5, 19, 21, 167, 172, 184, 292 ‘sliding-scale’ of obligations 4, 49, 290 objects indispensable for survival of the civilian population 73, 151n8, 257n24, obligations international see ICESCR minimum core see minimum core obligations/rights of non-state armed groups see non-state armed groups ‘negative’ 70–74, 95, 229 ‘positive’ 70–74, 94, 209, 229–230 to give consent to the delivery of humanitarian assistance see humanitarian assistance to respect, protect and fulfil ESC rights see ICESCR and ECSR to take steps see adequacy and progressive realisation opinio iuris in the ICRC Study on customary IHL see ICRC Study Ottawa Convention and complementarity between IHL and IHRL 19, 212 and the lex specialis maxim 25–26 application to NIACs 44 participation and the diversion of resources 199–201, 235 as a principle under the ICESCR 91, 93n121, 94, 199–201, 215, 122–123, 222, 147, 262n131, 280, 287 of conflict-affected individuals in decision making see marginalised and disadvantaged groups relation to ‘in a democratic society’ see ‘democratic society’ under IHL see direct participation in hostilities pillage 207 precautions in attack, obligations to take 58n109, 150n3, 186n169, 280 prisoners of war (POWs) internment of 53, 184 status and non-state armed groups 45, 51n72, 55, 63, 184, 290

status-determination under Art.5 GC III and Art.45 AP I and IHRL 29–30 progressive realisation and minimum core obligations see minimum core obligations/rights and obligations to take steps 67–69, 71, 74, 92n113, 102–103, 107, 111, 122–122, 224, 226, 243, 273 and retrogressive measures see retrogressive measures under Art.2(1) ICESCR see limitations and resources proportionality and the diversion of resources see resources as a principle of IHL and ‘reverberating’ effects see long-term effects and collateral damage 1, 52n77, 60–61, 171–172, 174n109, 175, 180n143 and long-term effects on civilian life 175–185, 279–280 and non-state armed groups see non-state armed groups and the integration of obligations flowing from the right to health  177–185; see also right to health application to ‘dual-use’ objects see ‘dual-use’ objects definition 58–61, 165, 173–177 in NIACs 58, 61, 65, 272 in the delivery of humanitarian assistance 249–250, 268 of derogations from human rights see derogations of limitations to human rights see limitations quality of health services, facilities and goods 106, 109, 205–206, 222, 277, 279 of humanitarian assistance 222, 265, 269 reasonableness and the minimum core approach 77–78, 95n131 and the South African Constitutional Court 77n52, 77–78 rebellion and military strategists 40–41, 64, 171–173

index333 and the ICRC 41–42 historical regulation of 40–42, 64 reciprocity see equality of belligerents and ius in bello recognition of belligerency 40 reconstruction and counterinsurgency strategies 171–173 and states’ obligations under the right to education 286–287 and states’ obligations under the right to food 285 and states’ obligations under the right to health 170–171, 178, 187–188, 202, 277–278 and states’ obligations under the right to housing 285–286 and the process of making militarytarget decisions 163–168, 182, 187, 277–278 Red Cross and Red Crescent emblem see distinctive emblem Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance 261–262 national societies 209–210, 227–228, 251, 261 neutrality of the see neutrality organisations 227–228, 233 principles of the 246–247, 251–253 refugees, protection of 178, 157, 293 rehabilitative care under IHL 211–212, 225, 236 under the CCM 212, 224 under the right to health 206, 211–212, 216–217, 223–224, 236 resources allocation of 90, 96, 200n162, 132 and minimum core obligations 76–79, 81–87, 90–92, 97–102, 124–128, 130–134, 169, 195, 202–203, 206, 221, 244, 260, 264, 267, 273, 282 and non-core obligations 97–99, 216 and private property 101 available through international cooperation 82, 84, 86, 131–132, 222, 243–244, 254, 267 diversion of alternatives to 133–135, 196–199, 235 and limitations to ESC rights 129–133, 136, 194–203, 282 lack of … and ESC rights 71–72, 79, 90, 115, 120, 125, 134, 267

‘maximum available’ under Art.2(1) ICESCR, definition 68–69, 71–72, 99–102, 201–102, 115, 222, 243, 272 retrogressive measures and obligations to ask for international assistance see resources and ICESCR and obligations to identify low-cost alternatives/options 131–134, 196–198 and respect for minimum core rights 78, 133–134, 136, 147, 195, 202–203, 273 and the notion of ‘general welfare’  30–34, 36, 146, 195–201 and the principle of proportionality 135, 147, 201–202 due to armed conflicts 131–133, 195, 273 evaluation by the CESCR 115, 120, 136–137, 146 presumption against impermissibility 130 relation to limitations to ESC rights 73, 115, 120, 129–137, 195 right to health and diversion of resources see resources and mental health care see mental health care and military-target decisions see military-target decisions and obligations to accept humanitarian assistance 240–257 and obligations to address direct health consequences of armed conflicts 192–194, 206–216, 235–236, 243, 248–251 and obligations to address indirect health consequences of armed conflicts 192–194, 217–223, 235–236, 243, 248–251, 268, 281–184 and obligations to facilitate humanitarian assistance see humanitarian actors and referral systems 213–214, 226 and rehabilitative care see rehabilitative care and the IHL principle of proportionality 177–183 and the protection of underlying determinants of health see underlying determinants of health and Alma-Ata Declaration minimum core obligations flowing from the see minimum core obligations/rights and Alma-Ata Declaration

334

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obligation to build a basic health system 5, 98–102, 104–105, 108, 153–155, 162, 168–171, 177–182, 187–188, 191–194, 197, 200–201, 205–206, 214, 218, 221–224, 226, 244, 250, 267, 281–282, 284 obligation to directly provide access to essential health care 70–71, 97–99, 104, 168–170, 177, 263, 278 obligation to provide emergency medical treatment see emergency medical treatment obligations concerning infectious diseases see diseases obligations to facilitate work of medical personnel see medical personnel personal scope of application of the 205–207, 251, 268 systemic objective of the 278, 295 sanitation see underlying determinants of health and water Security Council and the parallel application of IHL and IHRL 17–18 and states’ obligations on humanitarian assistance 242–245, 298 shelter see underlying determinants of health and housing sieges, IHL relating to the conduct of 149n1, 280 social security and ILO Convention 102 see ILO and the ECHR/ECtHR 86 European Code on 87 minimum core obligations flowing from the right to 84, 92, 134, 195, 274, 278, 288 relationship to IHL of the right to 288 under the ESC/RESC 87–88 Sphere Charter minimum core right to food in the 284–285 minimum core right to health in the 213, 216, 219–224 participation of conflict-affected individuals see participation starvation and minimum core obligations under the ICESCR 75–76, 93n122, 96, 127 and obligations relating to humanitarian assistance 240–245, 267

and the destruction of ‘dual-use’ objects see ‘dual-use’ objects prohibition of … of civilians in IHL 152, 240–241 state practice and general comments of UN treaty bodies 6–7 in the ICRC Study on Customary IHL see ICRC Study systemic integration and the lex specialis maxim see lex specialis maxim and the parallel application of IHL and IHRL 29–30 Art. 31(3)(c) VCLT 31–33, 36 travaux préparatoires of AP II 42–43, 227, 233–234, 255–256 of the ICC Statute 48 of the ICESCR 8, 69, 100, 115–116, 118, 120–221, 124, 136–137 UN Commission on Human Rights and the parallel application of IHL and IHRL 17–18 UN Human Rights Council and the parallel application of IHL and IHRL 17–18 UN Secretary-General and the parallel application of IHL and IHRL 18 Reports on the Protection of Civilians in Armed Conflicts 1, 18, 150, 152n15, 178n129, 242, 245n90, 256–257, 260–266 underlying determinants of health adequate food see food and malnutrition and the minimum core right to health 104, 219–220 and the transmission of infectious diseases 219–223 ‘definition’ 219 water and sanitation see water shelter see housing Universal Declaration of Human Rights Art. 29(2) see limitations and ‘democratic society’ relation to IHL at time of adoption 13–14 Vienna Convention on the Law of Treaties Art. 31 5–6, 30 Art. 31(3)(c) see systemic integration

index335 Art. 32 8 Arts. 54–64 141 vulnerable groups see marginalised and disadvantaged groups water access to see underlying determinants of health and accessibility and humanitarian assistance 213, 219–220 and military-target decisions 151–152, 161, 176, 181–182, 275 parallel application of IHL and the right to 275–280, 283–284, 288–289 right to 104–105, 123, 125, 145, 178, 213, 243n25 wounded and sick and obligations to safeguard lives under the ECHR see ECHR

civilians 193 combatants 192–193 definition in IHL 204 effect of destruction of ‘dual-use’ objects on the 151 equal treatment of all see non-discrimination IHL obligations to respect and protect the 73n27, 196, 201n33, 203–205, 227, 235–236, 241, 250, 281 IHL obligations to search for and collect the 73n27, 203, 206–210, 236, 263, 281 protection under the CCM 212 scope of medical care to be provided to the under IHL 210–212, 217–218, 294 under the right to health 212–217, 219–223, 249, 294