A comparison between; the approach of the European Court of Human rights to the role of human rights in an armed conflict and the lex specialis approach

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A comparison between;

the approach of the European Court of Human rights to the role of human

rights in an armed conflict and the lex specialis approach.

Annemiek Kroes

(10611010)

Master Thesis

2014

Master International and European Law: Public International Law Supervisor: prof. dr. T.D. Gill

Amsterdam Graduate School of Law University of Amsterdam.

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Introduction

Wars have been there as long as we remember. In 1863 the Swiss Federal Council, on the initiative of the Geneva Committee, called upon all European and some American states to come together for the purpose of an international treaty to create the first basic human rights in relation to war. This conference led to the first Geneva Convention in 1864 which regulated the relief of the wounded on the battlefield. Over the years the Geneva Conventions grew to a number of 4, including 3 additional protocols and is nowadays an universally accepted instrument which we refer to as international humanitarian law. This old instrument was the only international law that regulated an armed conflict. However after the second world war the international community started with the drafting of numerous international human rights treaties. And keeping in mind that another world war should never happen they were drafted from a peacetime point of view. For a certain amount of time it was assumed that, because of this intention of the drafters, human rights would only be applicable during peacetime whereas international humanitarian law would be the applicable law during an armed conflict. This however did not last for long, the ICJ determined on several occasions that international

human rights law did not cease to exist during an armed conflict1. And this perception is

nowadays widely accepted and will be presumed in this thesis. Conflict can easily be imagined, take the basic example of the fact that people are always killed during an armed conflict, which is allowed under certain circumstances under international humanitarian law and the right to life in international human rights law. How the two bodies of law should relate to each other is therefore a point of debate.

The main stream approach developed in the literature, on how the two bodies of law should relate to each other when both applicable, can be found in the lex specialis approach. Meaning shortly that in the case of conflict between the two bodies of law the more specific one should prevail. This approach seems good on paper but since there is no international court that deals explicitly with cases arising out of international humanitarian law cases tent to become in front of regional human rights bodies. Because international humanitarian law is created specifically for times of war it will come out of the lex specialis test as the more specific one most of the times. You can imagine that this would be difficult from the point of view of a human rights body. Because of this the key question that this thesis seeks to answer is the following:

Does the European Court of Human Rights follow the lex specialis approach developed in the literature when it deals with possible violations of the right to life in an armed conflict?

1_{See Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p.} 226, International Court of Justice (ICJ), 8 July 1996 para 25; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136 paras 102‐142 and Case concerning Armed Activities on the Territory of the congo (democratic Republic of the Congo v Uganda), judgment of 19 December 2005, paras 216‐221.

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The reason that I chose the right to life is because, as mentioned above, this is the first thing that comes to mind; a war without the taking of lives is hardly a war. Violations of the right to life can constitute themselves in numerous ways during an armed conflict, think of deaths resulting from captivity, deaths after disappearing or the killing of people outside of the battlefield. However since we are dealing with armed conflicts I would like to focus on deaths resulting from the conduct of hostilities, this because it is typical for armed conflicts and the two bodies of law differ mostly on this topic: In international human rights law everyone is protected by the right to life, whereas in international humanitarian law it is lawful to kill persons who are actively taking part in the hostilities, and the deaths of civilians can sometimes be justified and called ‘collateral damage’.

This research will constitute itself in the following way; first I will set out the overall debate in the literature dealing with how the two bodies of law should relate to each other when both applicable and then focus on the main stream approach of the lex specialis principle. Which will be the underlying principle in the whole research. After that I will discuss in which situations both bodies of law will be applicable in the same situation and point out the main principles and articles of both bodies of law that are important to answer my research question. These first parts will be the framework for my research which will be dealt with in the last two chapters of this thesis.

The last two chapters will deal with the key question and some sub questions. First I will look at the approach of the ECtHR in the cases flowing from the conflict in Chechnya and the conflict between Turkey and Cyprus. From this case law I will conclude whether or not the ECtHR followed the lex specialis approach. Since I think it is interesting to see if the approach of the ECtHR could influence future warfare two more questions will be answered. First I want to see whether or not the approach of the ECtHR differs from the approach taken by other regional human rights bodies and thus my first sub question will be:

How does the approach of the European Court of Human Rights differ from the approach taken by the Inter-American Court and Commission?

And if the approach of the ECtHR differs from the approach taken by the Inter-American Court and Commission what could be the consequences of the fact that two regional human rights bodies differ in approach:

Will these different approaches lead to different Rules of Engagements for the states party to the ECHR and on the other hand states party to the ACHR?

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Chapter 1

The debate on how International Humanitarian Law and International Human Rights Law should relate to each other when both applicable.

The situations in which both bodies of law are applicable will be discussed in detail in chapter 2, this chapter deals with the question on how these two bodies of law relate to each other when they are both applicable in a given situation. There is and has been a lot of debate on how the two bodies of law should relate to each other, this chapter will mostly focus on the main stream approach of the lex specialis rule; which basically states that when both bodies of law are applicable and in conflict, the more specific one should prevail. However since there is no overall consensus that this approach is indeed the right path to follow I will first briefly set out two different paths of thought before I will focus on the lex specialis approach.

Separation of the two bodies of law; no place for human rights in an armed conflict. The USA and Israel have both consistently rejected the applicability of human rights in an armed conflict, mostly by taking a very broad interpretation of the lex specialis approach in favour of humanitarian law. That Israel has this standpoint can be seen from the so-called ‘targeted killings decision’ of 2006 in which the Israeli Supreme Court sitting as the High Court of Justice stated: “That humanitarian law is the lex specialis which applies in the case

of an armed conflict. When there is a gap (lacuna) in that law, it can be supplemented by human rights law2”. Even though Israel does recognize a role for human rights in an armed

conflict, this role is only very limited thus only to fill up the gaps in humanitarian law. The USA goes a step further and interpreters the lex specialis so broad that it eliminates human rights all together when humanitarian law is applicable. As example I would like to mention the Bush administration’s legal strategy in its ‘war on terror’, they denied human rights protection for the prisoners in Guantanamo Bay based on the following arguments; first that human rights do not apply extraterritorial, and mainly important here is that they stated that even if human rights would apply extraterritorial, they would be displaced in this matter

by humanitarian law as the latter is the lex specialis3

It has to be pointed out that these two states hold a minority point of view, and that there is wide state practice in support of the lex specialis approach. So the only question that remains open is whether or not these two states can be seen as persistent objectors or not. According to this doctrine a state will not be bound by customary law when it persistently objects against the development of this custom. The problem is that the right to life is a jus cogens norm, and 2 The Public Committee against torture in Israel et al v The Government of Israel et al, Supreme Court of Israel sitting as the High Court of Justice (2006), , para 21. For more detail around this case and the attitude of Israel see: A. Gioia, The role of the European court of Human Rights in monitoring compliance with humanitarian law in armed conflict. in International Humanitarian Law and International Human Rights Law, London: Oxford University Press 2011 21, chapter 6 3_{Marko Milanovic, Norm Conflicts, International Humanitarian Law, and Human Rights Law in International} Humanitarian Law and International Human Rights Law, London: Oxford University Press 2011 21, chapter 4. And Hampson, F. ,The relationship between international humanitarian law and human rights law from the perspective of a human rights treaty body , 90 International Review of the Red Cross (2008), 550

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denying the applicability of a jus cogens norm is not possible4. The only other possibility would be to make a reservation to the human rights treaties they are party to. But again I foresee problems, making a reservation towards a jus cogens norm would be incompatible

with the object and the purpose of the treaty and therefore would not be allowed5.

The humanisation of humanitarian law

Another way to approach the relationship between humanitarian and human rights law is to see humanitarian law as a subject of human rights law. And when they are in conflict

humanitarian law should be applied in a way that conforms to human rights law6. This

approach is based on events that show how humanitarian law becomes more and more human

over time through the influence of human rights law7. Supporters of this approach believe that

the humanisation of humanitarian law is non-preventable8 and desirable.

Seeing humanitarian law as a subject of human rights law seems difficult if you realize that humanitarian law is a lot older than human rights law and more respected by states. However you could argue that humanitarian law contains the initial human rights since it gives

protection to individuals9. It is likely that this approach and thus the influence of human rights

on humanitarian law will grow over time; states, scholars and NGO’s invest drastically in human rights and the big amount of human rights lawyers outnumber humanitarian law practisers, giving them a louder voice. That even the ICRC is open to using human rights to fill up humanitarian law is one of the many examples of the growth of this influence of human

rights on humanitarian law10.

As stated by M. Milanovic: “It is the law that human rights are universal and that they accrue to every human being, war or no war. Nothing more needs to be said, and indeed nothing

more can be said on the matter11.”

4 Lau, Holning, Rethinking the persistent objector doctrine in international human rights law, Chicago Journal of International Law, Summer, 2005, Vol.6(1), p.495‐510 5_{See Article 19 (c) of the Vienna Convention on the Law of Treaties; on the non‐applicability of the} reservation to human rights treaties see Sub‐Commission, Reservations to Human Rights Treaties, UN Doc. E/CN.4/Sub.2/RES/2000/26 (Aug. 18, 2000). 6_{T. D. Gill, Some thoughts on the relationship between international humanitarian law and international human} rights law: a plea for mutual respect and a common sense approach, In “The realization of human rights: when theory meets practice. Essays in honour of Leo Zwaak” Intersentia Publishers (2013) 7_{T. Meron, the humanization of humanitarian law, American Journal of International Law, April, 2000,} Vol.94(2), p.239‐278 8 Vijay M. Padmanabhan (2011). Legacy of 9/11: Continuing the Humanization of Humanitarian Law. Yearbook of International Humanitarian Law, 14, p. 419‐430 9_{Y. Dinstein: Human Rights in Armed Conflict: International Humanitarian Law, Oxford University Press 1 1986} University Press Scholarship Online (chapter 9) In which is referred to certain provisions of humanitarian law as ‘wartime human rights’. 10_{Vijay M. Padmanabhan (2011). Legacy of 9/11: Continuing the Humanization of Humanitarian Law. Yearbook} of International Humanitarian Law, 14, p. 419‐430 11 Marko Milanovic, Norm Conflicts, International Humanitarian Law, and Human Rights Law in International Humanitarian Law and International Human Rights Law, London: Oxford University Press 2011 21, chapter 4.

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The lex specialis approach

This approach is based on the ‘lex specialis derogat legi generali’ principle. This principle entails that when two branches of law are both applicable but regulate the same subject differently, the more specific rule of the two branches must prevail over the more general

one12. The fact that this principle is seen as the main stream approach to the relationship

between humanitarian and human rights law is mainly based on the famous passage of the Nuclear Weapons case in which the ICJ stated that:

“...The test of what is an arbitrary deprivation of life[…] 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...13_”

That the lex specialis principle only comes into the picture when both humanitarian law and human rights law are in conflict can be read from the Wall case of the ICJ:

“As regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law. In order to answer the question put to it, the Court will have to take into consideration both these branches of international law, namely human rights law and, as lex specialis, international humanitarian law.”14

What can be read from the above is that both branches of law should be applicable in an armed conflict to the fullest, however when there is a conflict between the two the more specific one should prevail. In most situation a conflict between the two branches will not constituted itself, but in certain situations a conflict is inescapable think for example of rights as the right to life, freedom from torture and other cruel, inhuman, or degrading treatment or punishment, rights of persons deprived from their liberty and some economic and social

rights15. Important to note is that the lex specialis approach classically is a conflict of

norms-solving principle. Meaning that it would make the more specific rule prevail over the more general rule. In our case that would probably mean that human rights would be overruled by

international humanitarian law. However according to some16, including myself, this is not

how the ICJ applied the lex specialis principle in the above mentioned cases. I believe that the ICJ used the lex specialis principle as a means of interpretation which would not mean that the more general rule is not applicable at all, it means that the more general rule would be 12_{Sassòli, M., et Olson, L., The relationship between international humanitarian law and human rights law} where it matters : admissible killing and internment of fighters in non‐international armed conflicts , 90 International Review of the Red Cross(2008) p. 603 13_{Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p.} 226, International Court of Justice (ICJ), 8 July 1996, para 25 14 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136, para 106 15_{Droege, C., ‘The Interplay between International Humanitarian Law and International Human Rights Law in} Situations of Armed Conflict’, Israel Law Review, Vol. 40, No. 2, 2007, pp. 310‐355 16 D’Aspremont, J., “ Articulating International Human Rights and International Humanitarian Law: Conciliatory Interpretation under the Guise of Conflict of Norms‐Resolution”

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used as supplementing the more specific rule. Thus if one would see the lex specialis principle as a way of interpretation both bodies of law would still be applicable, but a conflict between both will be prevented to arise because one rule will be used as the primary interpretative

standard17. It is thus a form of harmonizing the two bodies of law.

I think that the ICJ used the lex specialis principle as a tool of interpretation. This becomes clear from the wording of the ICJ. In the Wall case the ICJ states clearly that both branches of international law have to be taken into consideration; “human rights law and, as lex specialis,

international humanitarian law.”18_{If the court would have used the lex specialis principle as a}

tool of conflict solving human rights law would not be applicable anymore since it would have been ‘overruled’ by humanitarian law. From the wording of the Nuclear Weapons case it becomes even more clear that the ICJ uses the lex specialis approach as a tool of interpretation since it decides that the word ‘arbitrary’ in article 6 ICCPR should be interpret by humanitarian law which is the lex specialis. In here it is especially clear that article 6 ICCPR is still applicable but nevertheless harmonized with humanitarian law.

Not everyone thinks that the lex specialis approach should be used as a tool of interpretation when both bodies of law regulate something in a different way. And there is also a lot of debate on which one of the two branches of law should be the lex specialis in a given situation:

Many authors interpret the above cited paragraph of the Nuclear Weapon case in a way that humanitarian law will always come out as the lex specialis in a conflict between human rights

law and humanitarian law19, in support of this could be said that the ICJ in the Wall case

stated that humanitarian law is the lex specialis without referring to a specific human right. However some argue that the court in the Nuclear weapon case does not say that humanitarian law should be seen as the overall lex specialis. They interpret the case in a way that the ICJ only constitutes humanitarian law as lex specialis in relation to the right to life during the conduct of hostilities, and that the outcome of a lex specialis test could differ in other

situations, meaning that also human rights law could come out as the more specific rule20. In

my opinion this debate shows that the rulings of the ICJ are not clear enough to give a definite answer to which one of the two branches will be the lex specialis in any situation, and even

though the debate is very interesting, this will not be the subject of research of this thesis21.

17_{This would be in conformity with article 31(3)(c)of the Vienna convention on the law of treaties see} D’Aspremont, J., “ Articulating International Human Rights and International Humanitarian Law: Conciliatory Interpretation under the Guise of Conflict of Norms‐Resolution” and Joost pauwelyn, Conflict of norms in public international law: How WTO law relates to other rules of International LawP. Cambridge [etc.] : Cambridge University Press (2003), 385‐439 p. 410 18 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136, para 106 19_{See for example: Droege, C., ‘The Interplay between International Humanitarian Law and International} Human Rights Law in Situations of Armed Conflict’, Israel Law Review, Vol. 40, No. 2, 2007, pp. 310‐355 and 20_{Louise Doswald‐Beck, ‘The right to life in armed conflict: does international humanitarian law provide all the} answers?’, 88 IRRC (2006) No. 864, at 881. 21 For a more detailed research in this debate see: Nancie Prud’homme, Lex specialis; oversimplifying a more complex and multifaceted relationship? ISR. L. REV. Vol. 40, No.2, pp. 355‐395, 2007

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How the lex specialis approach will be used in this research

Even though there is no consensus on how the lex specialis approach works in detail it is widely accepted as the proper legal way to deal with the double application of humanitarian law and human rights law in an armed conflict. Since within the debate on how the lex

specialis approach works in detail most agree that humanitarian law will come out of the lex specialis test in relation to the right to life during the conduct of hostilities, I will mainly focus

on this. This conclusion would be in agreement in relation to the authors who think that humanitarian law is the overall more specific rule, and also with those who think that the ICJ in the Nuclear Weapons case only meant that humanitarian law should be the lex specialis in relation to the right to life during the conduct of hostilities.

In the next chapter I will mainly focus on the situations in which both international humanitarian law and international human rights law are applicable at the same time. This is important since only when both are applicable the lex specialis approach will come into the picture. After that I will discuss the fact that article 6 ICCPR on which the ICJ ruled in the Nuclear Weapon case differs from article 2 of the ECHR, which will be the main focus of this research. I will also address the lex specialis approach in relation to non-international armed conflicts since the rules regarding an non-international armed conflict are a lot less specific than the ones dealing with an international armed conflict. With the possible consequences that they are too vague to be of a lex specialis character.

After that the main focus of research will be whether or not the European Court of Human Rights (ECtHR) follows this lex specialis approach in its case law.

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Chapter 2

The applicable law;

The Geneva Conventions and The European Convention on Human Rights.

This Chapter aims to show when both international humanitarian and the European Convention of Human Rights (ECHR) law are applicable. I will first discuss humanitarian law, which is laid down in the Geneva Conventions and their additional protocols. I will deal with the general principles of humanitarian law and see when which parts of humanitarian law are applicable in a given situation. I will end the first part with the discussion whether or not the rules regulating a non-international armed conflict are specific enough to come out as the lex specialis in a lex specialis test. The second part of this chapter will deal with the ECHR, first to see when it is applicable, mainly dealing with the extraterritorial applicability of the convention. The second part will lay down a framework of the parts of the convention which are relevant for the rest of my research namely the derogation clause of article 15 ECHR and the right to life.

The Geneva Conventions and their additional protocols

When I speak of International Humanitarian Law I refer to the law that is laid down in the Geneva Conventions and their additional protocols. All states have ratified the Geneva Conventions making them universally applicable. Not all states have ratified the additional protocols, for example the USA has not ratified additional protocol one. But even this might not stand in the way of universal applicability since the protocol has customary law status22. However for this research it is not important to dwell on this since all the states that are party to the ECHR have ratified the conventions and their additional protocols. Here I will discuss the parts of the Geneva Conventions and their additional protocols which are relevant for my research.

The general principles of International Humanitarian Law

International humanitarian law is based on the balance between military necessity and

humanity23. Military necessity has been defined as:

"Measures of regulated force not forbidden by international law, which are

indispensable for securing the prompt submission of the enemy, with the least possible

expenditure of economic and human resources24"

22_{Jean‐Marie Henckaerts, Study on Customary International humanitarian law: A contribution to the} understanding and respect for the rule of law in armed conflict, IRRC Volume 87 Number 857 March 2005. P. 187 and further. 23_{Jann k. Kleffner Human rights and international humanitarian law: General issues in: The handbook of the} international law of military operations, London: Oxford university press, 2010, chapter 4 p. 52 24 U.S. Air Force Law of War Manual, as mentioned in: Doswald‐Beck and Vité, international Humanitarian law and Human rights law, 1993) 293 IRRC 94

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The German Military Manual states clearly that the rules of military necessity are encoded in international humanitarian law:

"Military necessity has been already taken into consideration by the conventions on the law of war, because the law of war Constitutes a compromise between the necessities to obtain the aims of war and the principles of humanity25_"

This balance between humanity and military necessity demonstrates itself in some general principles that are inherent to international humanitarian law. Note that the details of these principles can vary depending on the type of armed conflict that is at stake, these differences will be mentioned in more detail in the next parts of this chapter.

The main principle is the principle of distinction between people who do not, or can no longer take part in the hostilities, and people who are taking part in the hostilities. This principle is most clear in an international armed conflict where the distinction is made between civilians

and combatants26. Attacks can in principle only be aimed at combatants (regular or irregular

members of the armed forces of the parties to the conflict27, unless they are hors de combat28)

and combatant objects. Whereas civilians cannot be the object of an attack (unless they take

up arms29).

Since in a war the injury to or the loss of civilians and their property is not completely preventable the principle of proportionality comes into play. “Proportionality means a value

judgment between X and Y in order to justify prioritization of either of them.30_{” In our case}

this will be a value judgment between military necessity and humanity, meaning that while attacking military objects the injuries to the civilian population must be in proportion to the

military aim that is pursued31. I would like to quote M. Milanovic here, who in a sort of brutal

way puts the finger at the right spot: “International humanitarian law is still a discipline about

killing people, albeit in a civilized sort of way.32”

Apart from these two principles, which are the ones that are most important in our research, there are two more general principles that underlie international humanitarian law. Those are that the methods and means of warfare are not unlimited, superfluous injury and unnecessary

suffering are not allowed to be inflicted on the other party33. And the last principle contains

25 German Manual ZDv 15/10, as mentioned in: Doswald‐Beck and Vité, international Humanitarian law and Human rights law, 1993) 293 IRRC 94 26_{Article 48 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of} Victims of International Armed Conflicts (Protocol I), 8 June 1977 (hereinafter AP I) 27_{Article 43 AP I} 28_{Articles 41 and 42 AP I} 29 Article 61 (2) and (3) AP I 30_{Tamura, Eriko, The Isayeva Cases of the European Court of Human Rights: The Application of International} Humanitarian Law and Human Rights Law in Non‐International Armed Conflicts, Chinese Journal of International Law, 2011, Vol. 10(1), pp.129‐140 31_{Articles 51(5)(b) and 57 AP I} 32_{Marko Milanovic, Norm Conflicts, International Humanitarian Law, and Human Rights Law in International} Humanitarian Law and International Human Rights Law, London: Oxford University Press 2011 21 33 Article 35 AP I and Jann k. Kleffner Human rights and international humanitarian law: General issues in: The handbook of the international law of military operations, London: Oxford university press, 2010, chapter 4 p. 52

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basically that international humanitarian law requires that those in the power of a party to the

armed conflict must be threatened in a human way and be protected and respected34.

When is international humanitarian law applicable?

First I would like to point out the distinction between jus ad bellum and jus ad bello. Jus ad

bello deals with the question whether or not the war itself is lawful, thus it answers the

question if the use of force is legal in relation to the prohibition to use force of article 2(4) of the UN Charter. Jus ad bellum on the other hand deals with the questions relating to the way a war is conducted and if this is done in a legal or just way. The law that is codified in the Geneva Conventions and their additional protocols deals with jus ad bellum rules. These are applicable regardless the war is conducted in a legal jus ad bello way. Thus the rules of international humanitarian law are applicable even when the use of force is not allowed

according to the UN Charter35.

The next question then is when international humanitarian law becomes applicable to a certain situation. The answer is; when there is an armed conflict, the more precise answer is given by the ICTY:

“On the basis of the foregoing, we find that an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there.36_”

However not every clash between governmental authorities and armed groups will constitute an armed conflict, this would mean that every riot within a state would be subject to international humanitarian law. “There for an armed conflict is distinguished from internal disturbance by the level of intensity and the degree of organisation of the parties to the

conflict.37” We will see below that the parties to a conflict, the intensity and the degree of

organisation all play a role in determining which parts of international humanitarian law are applicable in a given situation.

34 Article 12 Geneva Convention I and II, article 16 Geneva Convention III, article 27 Geneva Convention IV, Common article 3(1) Geneva conventions I‐IV, articles 2(1) and 4(1) AP II, article 75(1) AP I. See also Jann k. Kleffner Human rights and international humanitarian law: General issues in: The handbook of the international law of military operations, London: Oxford university press, 2010, chapter 4 p. 52 35_{Jann k. Kleffner Human rights and international humanitarian law: General issues in: The handbook of the} international law of military operations, London: Oxford university press, 2010, chapter 4 p. 52‐53 36 Prosecutor v. Dusko Tadic (Appeal Judgement), IT‐94‐1‐A, International Criminal Tribunal for the former Yugoslavia (ICTY), 15 July 1999, para 70 37_{Federico Sperotto (2008) “Law in Times of War: The Case of Chechnya,” Global Jurist: Vol. 8: Iss. 2}

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The distinction between a non-international armed conflict and an international armed conflict.

Legally speaking there are only two types of armed conflicts; an international armed conflict and a non-international armed conflict. A conflict may however evolve from the one into the other38.

International armed conflicts

The Geneva Conventions I-VI and additional protocol I are all applicable in an international

armed conflict39. Common article 2 states that the law of international armed conflict applies

to “all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of

them40.” The ICRC Commentary adds: “Any difference arising between two States and

leading to the intervention of armed forces is an armed conflict within the meaning of Article 2, even if one of the Parties denies the existence of a state of war. It makes no difference how

long the conflict lasts, or how much slaughter takes place.41” The latter makes clear that only

a very low level of intensity is required for a conflict between two states to be labelled as an international armed conflict. Any kind of use of arms between states is enough.

Next to this regular international armed conflict between states additional protocol I adds that also "armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination

[…]42” will fall within the scope of an international armed conflict. And also in the case of

belligerent occupation the rules relating to an international armed conflict will be applicable.43

Non-international armed conflicts

The classification of an international armed conflict is as can be seen above is relatively easy, unfortunately the same cannot be said about the classification of a non-international armed conflict. There are two main legal sources to determine what a non-international armed conflict is; common article 3 to the Geneva conventions and article 1 of additional protocol

II.44 Here the level of intensity and the degree of organisation plays an important role, since

the higher these two are the more change that additional protocol II will be applicable to the armed conflict.

First it is important to see when the minimum threshold of common article 3 will be

applicable; “In the case of armed conflict not of an international character [...]” The negative

formulation that the conflict shall not be of an international character means that at least one 38_{International Committee of the Red Cross (ICRC), How is the Term "Armed Conflict" Defined in International} Humanitarian Law? (2008) Opinion Paper, March 2008 39 Common article 2 Geneva Conventions I‐IV and article 1(3) AP I 40_{Common article 2 Geneva Conventions I‐IV} 41_{ICRC Commentary on article 2 chapter I: General provisions, Convention (I) for the Amelioration of the} Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949. 42_{Article 1(4) AP I} 43_{Jann k. Kleffner Human rights and international humanitarian law: General issues in: The handbook of the} international law of military operations, London: Oxford university press, 2010, chapter 4 p. 55 44 International Committee of the Red Cross (ICRC), How is the Term "Armed Conflict" Defined in International Humanitarian Law? (2008) Opinion Paper, March 2008

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of the parties to the conflict cannot be of governmental character. Meaning that the hostilities

take place between one or more armed groups and a state, or solely between armed groups45.

To determine if there is an armed conflict in the meaning of common article 3 we have to look at two criteria; First it is important to distinguish an armed conflict from internal disturbance

and tensions.46 This means that the hostilities must reach a certain level of intensity, an

example is when the government is forced to use the military against the insurgents instead of

just police forces47. Further the duration of the hostilities, the amount of victims and the

weapons used can all play a role in determining the level of intensity.48_{The second criteria}

can be found in the level of organisation of the parties to the conflict, since will be applicable to the armed groups they need to have a certain level of organisation to be able to comply with the rules and obligations. This means that the armed group must possess organized armed forces, thus a certain command structure and the capacity to sustain military operations are required49.

For the more specific rules of additional protocol II to be applicable, next to common article 3, to the armed conflict higher thresholds have to be met: "armed conflicts which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under 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 this Protocol50". From the above becomes clear that one of the

parties of the conflict has to be a state and the other(s) armed group(s). And the armed group also has to have some sort of territorial control which will bring up the threshold of organisation that is required. Again this is important so that the armed group in question will be able to implement the protocol.

Are the rules regulating non-international armed conflicts specific enough to be of a lex

specialis character?

Which parts of the Geneva Conventions and their additional protocols are applicable depends on the type of armed conflict. In relation to an international armed conflict all the conventions and additional protocol I are applicable and give very detailed rules, they regulate the armed conflict in a clear way and would often be more precise than the applicable human right norms. However the rules regulating a non-international armed conflict, especially when only the minimum threshold of common article 3 is applicable, are more vague and less specific. For example in a non-international armed conflicts the armed groups do not get the status of combatant, meaning that when they come into the hands of the other party they will not get 45_{Prosecutor v. Dusko Tadic (Appeal Judgement), IT‐94‐1‐A, International Criminal Tribunal for the former} Yugoslavia (ICTY), 15 July 1999, para 70 46_{This is the threshold from article 1(2) porotocol II but it is also applicable to conflict covered by common} article 3: International Committee of the Red Cross (ICRC), How is the Term "Armed Conflict" Defined in International Humanitarian Law? (2008) Opinion Paper, March 2008 47_{ICTY, The Prosecutor v. Fatmir Limaj, Judgment, IT‐0366‐T, 30 November 2005, para. 135‐170.} 48_{Vite, S., Typology of armed conflicts in international humanitarian law: legal concept and actual} situations, International Review of the Red Cross, 2009, vol. 91, p 76 49 ICTY, The Prosecutor v. Fatmir Limaj, Judgment, IT‐03‐66‐T, 30 November 2005, para. 94‐134. 50_{Article 1(1) additional protocol II}

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the status of prisoner of war. The members of an armed group will remain civilians who take up arms, meaning that they can be detained and prosecuted for fighting. Since international humanitarian law does not give a legal base for internment in a non-international armed conflict it may constitute arbitrary detention and be in violation of for example article 5(1)

ECHR51.

This raises the question whether or international human rights law should be the lex specialis in a non-international armed conflict. Common article 3 consists of only 263 words in total and only mentions the right of life briefly stating that civilians, not taking active part in the hostilities, cannot be murdered or executed without previous judgment of a regularly constituted court. In contrast article 2 of the ECHR consist of 114 words only dealing with the right to life. In my opinion it would be hard to defend the opinion that common article 3 would be more specific and thus be the lex specialis, even though it might be made specifically for a non-international armed conflict. In my opinion also additional protocol II does not give rules that are specific enough to win in a lex specialis test, it gives only a little more protection to civilians not taking part in the hostilities. Mainly important is that neither one of them really regulates the conduct of hostilities, common article 3 not at all, and

additional protocol 2 only in very general terms52.

This said the ICRC study on Customary International Humanitarian Law puts the matter in a different light. The ICRC, after ten years of research on the matter, claims that at least 136 of 161 rules of customary humanitarian law which are applicable to international armed conflicts are also applicable to non-international armed conflicts. Meaning that most treaty rules which apply to international armed conflicts are also applicable in non-international armed

conflicts53. In the many fields where the treaty rules still differ, custom has deleted these

differences, leading that some even argue that a distinction between a non-international armed

conflict and an international armed conflict should be eliminated altogether54. Keeping this in

mind you could argue that customary humanitarian law would be the lex specialis in a non-international armed conflict. And I believe that these customary rules could be the winner in a

lex specialis test even though I recognise that their status is less clear than the written rules

regulating an international armed conflict.

51 Chatham House & ICRC, Expert meeting on procedural safeguards for security detention in non‐international armed conflict, 2008. P. 866‐867 52_{W. Abresch, A Human Rights Law of Internal Armed Conflict: The European Court of Human Rights in} Chechnya, The European Journal of International Law, 2005, Vol. 16(4), p 747 ‐748 53_{Jean‐Marie Henckaerts and Louise Doswald‐Beck, Customary International Humanitarian Law,} Cambridge University Press, Cambridge, 2005 54 P. Sassòli, M., et Olson, L., The relationship between international humanitarian law and human rights law where it matters : admissible killing and internment of fighters in non‐international armed conflicts , 90 International Review of the Red Cross(2008) p. 601‐602

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The European Convention on Human Rights (ECHR)

In the previous part of this chapter we saw in which situations international humanitarian law is applicable. Now we will have to determine the situations in which the ECHR is applicable. We will see that first and foremost the ECHR is applicable in the territory of its High Contracting Parties. But the obligations under the ECHR do not always stop at the border. Under certain requirements the convention is applicable extraterritorial too. However article 15 of the ECHR gives the opportunity for a state to derogate from the convention in time of war and thus I will continue by discussing this provision. But we will see that no state has ever invoked article 15 in times of war. I will end this chapter with the right to life article of the ECHR before going on to the next chapter in which I will deal with the approach of the ECtHR towards the role of the right to life in an armed conflict.

The applicability of the European Convention on Human Rights

We saw in the previous part of this chapter that international humanitarian law can also bind non-state actors, this is not the case with international human rights law, only the states party to the ECHR are bound by their rules and obligations. The question that needs to be answered is when states are bound by the convention. Article 1 of the convention establishes that: “The

High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this convention55.” The question that arises immediately is

what kind of jurisdiction is meant in article 1? In principle jurisdiction is the government’s general power to exercise authority over all entities and persons within its territory and stems from state sovereignty. Normally jurisdiction covers three areas namely; the states right to create, amend or repeal legislation; the state’s right to enforce this legislation and finally the ability of national courts to hear and decide on matters. It must be clear that not all three are covered by article 1, only the second one is, article 1 thus speaks of enforcement jurisdiction.

Since jurisdiction is closely linked to state sovereignty a state cannot exercise its jurisdiction in any form in the territory of another states, unless an international treaty or custom permits it

to do so56. Even though we will see that the convention gives this permission it is jurisdiction

in a state’s own territory that is primary covered by article 1 ECHR. Because of this a state’s

jurisdiction in its own territory is always presumed57. However two more questions arise;

what if a state does not have control over (a part in) its territory, which can easily be imagined in relation to a non-international armed conflict, will the state still be accountable for violations of the convention? And secondly can a state have jurisdiction outside of its territory, thus is the convention applicable extraterritorial? The next part seeks to answer these questions. 55 Article 1 European Convention on Human rights 56 S.S. Lotus (France v. Turkey), 1927 P.C.I.J. (ser. A) No. 10 (Sept. 7) para 45 57_{Ilaşcu and Others v Moldova and Russia, App No 48787/99, ECtHR Grand Chamber (2004). Para 312}

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No effective control over its own territory

I mentioned above that jurisdiction is presumed in a state’s own territory. But what when a part or whole of its territory is not under its effective control? For example when it is under the effective control of another state or armed groups? This is mostly an important question in relation to a non-international armed conflict since it is easy to imagine that a state would lose control over (parts of) its territory when involved in a non-international armed conflict. However the ECtHR decided in the Ilaşcu case that it would not be that easy for a state to escape its responsibilities under the convention. It ruled that even when (a part of) the territory of a state is under the effective control of another state, the state is still bound by the convention. As stated by the court:

“the undertakings given by a Contracting State under Article 1 of the Convention include, in addition to the duty to refrain from interfering with the enjoyment of the rights and freedoms guaranteed, positive obligations to take appropriate steps to ensure respect for those rights and freedoms within its territory…. Those obligations remain even where the exercise of the State's authority is limited in part of its territory, so that it has a duty to take all the appropriate measures which it is still within its power to take.58_”

It is thus obvious that a state is bound by the convention in its own territory even when there is no effective control over (parts of) it. The state has still duties and obligations under the convention that it has to fulfil. But we will see that the duties and obligations of the state does not stop at its borders.

Extraterritorial application of the convention

If states would only be bound by human rights treaties in their own territory it would most likely lead to the fact that they would permit their agents to act abroad in a way that is not permitted under human rights law at home. This would lead to the fact that the persons falling under their control would not receive any human rights protection. A clear example would be the detainees in Guantánamo Bay, they are under the total control of the USA but on the soil of Cuba. The USA has always claimed that human rights treaties are not applicable

extraterritorial59_{. If this would be true these detainees would not be protected. And not}

surprisingly there came protest from human rights bodies towards this approach60.

Therefore we see that human rights treaties can be applicable extraterritorial. In the case of Democratic Republic of Congo V Uganda the ICJ held that states are responsible under international human rights treaties for acts done in the exercise of jurisdiction outside their

58_{Ibid para 313} 59_{Letter from the Permanent Representative of the U.S. to the U.N. and Other Int’l Orgs. in Geneva, to the} Office of the High Comm’r for Human Rights (Jan. 31, 2006), reprinted as Annex II to the U.N. High Comm’n on Human Rights, Report of the Chairman of the Working Group on Arbitrary Detention et al. on the Situation of Detainees at Guantánamo Bay, U.N. Doc. E/CN.4/2006/120 (Feb. 27, 2006) (“The United States has made clear its position that . . . the International Covenant on Civil and Political Rights, by its express terms, applies only to ‘individuals within its territory and subject to its jurisdiction.’”) 60_{see for example: Rep. of the Human Rights Comm., Jan. 31–Mar. 11, 1994, ¶ 284, U.N. Doc. A/50/40; GAOR} 50th Sess., Supp. No. 40 (1995) and Human Rights Comm., Consideration of Reports Submitted by States Parties under Article 40 of the Covenant: Concluding Observations of the Human Rights Committee, United States of America, 87th Sess, July 10–28, 2006, ¶ 10, U.N. Doc. CCPR/ C/USA/CO/3/Rev.1 (Dec. 18, 2006)

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territory61. However we saw that human rights treaties are primary applicable territorial, and thus the extraterritorial applicability is an exception, meaning that it is not as easy to establish as the territorial application.

In relation to the ECHR the ECtHR determined that when a state has effective control over a territory the convention will be applicable:

“Bearing in mind the object and purpose of the Convention, the responsibility of a Contracting Party may also arise when as a consequence of military action - whether lawful or unlawful—it exercises effective control of an area outside its national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention derives from the fact of such control whether it be exercised directly, through its armed forces, or through a subordinate local administration62_.”

And the court justified this effective control argument by pointing towards the problem that I described above in relation to Guantánamo Bay by stating that:

“any other finding would result in a regrettable vacuum in the system of human-rights protection in the territory in question by removing from individuals there the benefit of the Convention’s fundamental safeguards and their right to call a High Contracting Party to account for violation of their rights in proceedings before the Court63_.”

Effective overall control is clearly not the same as having jurisdiction over a territory, jurisdiction would mean that the state in question would extend the application of its domestic law to the territory. Effective control constitutes itself in having actual physical

power over a certain territory and its people64. A clear example in which a state will have

effective control is during the occupation of a territory65. Effective control cannot only be

exercised over a territory but also over persons outside of their own territory. Thus when a person is in the hands of the state, think for example when the person is detained by the state,

the state will also be bound by the convention66.

From the above we can conclude that a state will most likely have effective control during an occupation and detention outside of its territory. But what about acts by a state during the conduct of hostilities? Will the state have this actual physical power too? We can see from the Banković case that this effective control does not constitute itself so easily during the conduct of hostilities. The case dealt with a typical example of conduct of hostilities, namely the bombing of a radio-television station. The court pointed out that the convention is primarily applicable in the states own territory and in exceptional circumstances outside of it. It 61_{Case concerning Armed Activities on the Territory of the Congo (democratic Republic of the Congo v Uganda),} judgment of 19 December 2005, para 216 62_{Loizidou v. Turkey, 40/1993/435/514, Council of Europe: European Court of Human Rights, 23 February 1995.} Para 62 63 Cyprus v. Turkey, 25781/94, Council of Europe: European Court of Human Rights, 10 May 2001, para 78 64_{M. Milanovic, From compromise to principle: Clarifying the concept of state Jurisdiction in Human Rights} Treaties, Human Rights Law Review, 2008, Vol. 8(3), pp.411‐448 65 Droege, C., ‘The Interplay between International Humanitarian Law and International Human Rights Law in Situations of Armed Conflict’, Israel Law Review, Vol. 40, No. 2, 2007, pp. 310‐355 66_{Issa and Others v Turkey (Merits), App No 31821/96, ECtHR Chamber (2004) para 71.}

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concluded that a bombing does not constitute effective control over an area and stated that:

“had the drafters of the Convention wished to ensure jurisdiction as extensive as that advocated by the applicants, they could have adopted a text the same as or similar to the contemporaneous Articles 1 of the four Geneva Conventions of 1949.67” The court thus makes a distinction between actual warfare in an international armed conflict and occupation. This means in practice that the double application of international human rights law and international humanitarian law will most likely arise in situations of non-international armed

conflicts and of belligerent occupation of foreign territory68_.

The Banković case raised another question namely whether or not the convention could be applicable outside of the geographical area covered by the convention. The court in Banković

mentioned that the Former Yugoslavia did not fall in the “European legal space69.” This led to

speculation whether or not an act of a state outside the geographical scope of the convention

would fall outside of its jurisdiction per see70. Later case law of the court clears this vague

notion in Banković up; the convention is not limited to the European legal space. Effective

control may constitute itself in any place in the world71.

The above case law of the court has been unanimously accepted by the member states of the

Council of Europe72. Meaning that the approach taken by the USA (and Israel too for that

matter) is not shared by any state party to the ECHR. Meaning that taking shelter behind the argument that human rights treaties do not apply extraterritorial will most likely not constitute itself within the scope of the ECHR. However there is another possibility for states to partly escape the applicability of the ECHR when they find themselves in an armed conflict; the derogation clause of article 15 ECHR.

The derogation clause of article 15 ECHR

That the applicability of the convention does not cease to exists in an armed conflict can be read in the derogation clause of article 15 ECHR. But article 15 creates the possibility for a state to derogate from the convention “in time of war or other public emergency threatening

the life of the nation[..]73” This means that the application of the convention may be limited in

these situations, but it also means, as a matter of principle, that the convention continues to 67 Banković and Others v Belgium and Others, App No 52207/99, ECtHR Grand Chamber (2001) para 75. 68_{A. Gioia, The role of the European court of Human Rights in monitoring compliance with humanitarian law in} armed conflict. In: International Humanitarian Law and International Human Rights Law, London: Oxford University Press 2011 21, chapter 6 69_{Banković and Others v Belgium and Others, App No 52207/99, ECtHR Grand Chamber (2001) para 80} 70_{Droege, C., ‘The Interplay between International Humanitarian Law and International Human Rights Law in} Situations of Armed Conflict’, Israel Law Review, Vol. 40, No. 2, 2007, pp. 310‐355 71_{Jacobs, White & Ovey, The European Convention of Human Rights, London: Oxford university press 2010. P 91} And for case law see: Issa and Others v Turkey (Merits), App No 31821/96, ECtHR Chamber (2004), öcalan v. Turkey, App No 46221/96, ECtHR Chamber (2005), Pad and Others v. Turkey, App No (60167/00, ECtHR (2007) and Woman on Waves and Others v. Portugal, App No 31276/05, (2009) 72_{Interim Resolution ResDH(2005)44, concerning the judgment of the European Court of Human Rights of 10} May 2001 in the case of Cyprus against Turkey (Adopted by the Committee of Ministers on 7 June 2005, at the 928th meeting of the Ministers’ Deputies) 73_{Article 15(1) European Convention Human Rights}

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apply74.

There are two requirements to fulfil before a state can derogate in accordance with article 15; the procedural requirements under paragraph 3 and the substantive requirements of paragraph 1. Under the procedural requirements of paragraph 3 a state must ‘keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons thereof’ and the state has to inform the Secretary General when these measures have ceased to operate. This indicates that a state has to explicitly derogate. The substantive requirements are to be found in the first paragraph, there has to be ‘war or other public emergency threatening the life of the nation’ and the derogation must be ‘strictly required’. We can see that article 15 makes a distinction between war and other public emergency’s threatening the life of the nation. This means that when there is a situation of war the state does not have to show that this threatens the life of the nation, this requirement is only applicable to other public

emergency’s75. The question remains however what would fall within the scope of ‘war’?

That an international armed conflict falls within the scope may be obvious. But the question remains whether or not a non-international armed conflict falls within its scope too. For this part of article 15 it does not matter that much since a non-international armed conflict would, definitely fall within the scope of an ‘other public emergency threatening the life of the nation’. The ECtHR has given us three requirements which would easily be fulfilled by a non-international armed conflict; it must be exceptional, it must affect the whole population and it

must constitute an imminent threat to the organized life of the community76. However we will

see that it does matter a lot whether or not a non-international armed conflict falls within the scope of ‘war’ for the second paragraph of article 15 which deals with the right to life. And thus I will come back to this below.

Secondly the derogation must be ‘to the extent strictly required by the exigencies of the

situation’ thus the extent of the derogation must be strictly related to the situation77, the word

‘extent’ means that the derogation must be proportionate and ‘strictly required by the exigencies’ means that the derogation must also be necessary. Thus whether or not there is ‘war or other emergency threatening the life of the nation’ or if the derogation is ‘strictly required’ is subject to control of the organs of the convention and the Strasbourg organs who consider both proportionality and necessity as criteria for determining if the situation is one of

war and whether or not the criteria are strictly required in that situation78. However the states

will be granted a certain margin of appreciation in determining the situation and the necessity of the derogation. This margin is wider in respect to the characterization of the situation than

74 A. Gioia, The role of the European court of Human Rights in monitoring compliance with humanitarian law in armed conflict. In: International Humanitarian Law and International Human Rights Law, London: Oxford University Press 2011 21, chapter 6 75 Aly Mokhtar, Human rights obligations v. derogations: article 15 of the European Convention on Human Rights, 8 IJHR (2004) 65 76_{Lawless v. Ireland (Merits), App No 332/57, ECtHR, 1961, Ser. A. para 28} 77 Aly Mokhtar, Human rights obligations v. derogations: article 15 of the European Convention on Human Rights, 8 IJHR (2004) 65 p 70 78_ibid

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in determining the necessity of the derogation79. This margin of appreciation is justified according to the court because “the national authorities are in principle in a better position

than the international judge to decide both on the presence of such an emergency and on the nature and scope of derogations necessary to avert it.80”

Notwithstanding this derogation possibility for states who find themselves in an armed conflict, no state has ever invoked article 15 on the basis of an armed conflict. And we will see in the next chapter that the court has used this as a reason to apply the convention in full in these situations. However the reasons for a state not to derogate in times of an armed conflict might be more political than legal. For example a state that acknowledges that it is involved in a non-international armed conflict admits that the government is unable to control and stop the large-scale violence. It admits that another power is wielding in the sovereignty of the state. And acknowledging that international humanitarian law applies would be a statement of weakness, admitting that the state is not in a position to take control over its own territory. Apart from that the state would be “facilitating rebel claims that they have the requisite international personality to carry on diplomacy and participate in ‘peace conferences’, and allowing rebels to insist that, pursuant to Common Article 3’s injunction that ‘[t]he Parties to the conflict should further endeavour to bring into force, by means of

special agreements, all or part of the other provisions of the present Convention’81”.

Apart from that we have seen that international humanitarian law applies notwithstanding a

statement of the state itself that it is involved in an armed conflict82. In the light of the lex

specialis principle this raises the question whether or not the court could apply international

humanitarian law even when a state does not derogate? I do not find any legal impediment in the convention for the court to determine whether or not the state in question is involved in an armed conflict and thus apply or at least take into account international humanitarian law in its judgment. It could be argued that the mandate of the court does not include international humanitarian law. But as I will show in the next chapter, I believe that international humanitarian law could fall within the mandate of the court, based on the text of the convention which explicitly refers to international humanitarian law in certain provisions such as article 15 paragraph two. Meaning that in my opinion the court cannot derogate for a state but could (indirectly) invoke international humanitarian law based on article 15.

The second paragraph of article 15 stipulates that some rights in the convention are non-derogable, meaning that even in times of war these provisions will be applicable to the fullest. One of these provisions is the main point of research in this thesis namely the right to life. However in relation to the right to life article 15 states the following: “No derogation from

79_{Hampson, F. ,The relationship between international humanitarian law and human rights law from the} perspective of a human rights treaty body , 90 International Review of the Red Cross (2008) 549‐572 80 Ireland V United Kingdom, App No: 5310/71, ECtHR (1978), Para 207 81_{W. Abresch, A Human Rights Law of Internal Armed Conflict: The European Court of Human Rights in} Chechnya, The European Journal of International Law, 2005, Vol. 16(4), p 741 ‐767 82 See for example Article 2 common to the four 1949 Geneva Conventions, whereby the Conventions apply ‘to all cases of declared war or of any other armed conflict’, even if the ‘state of war’ is not recognized by one party to the conflict.

A comparison between; the approach of the European Court of Human rights to the role of human rights in an armed conflict and the lex specialis approach