Human Rights on the Battlefield
54 Pages Posted: 11 Feb 2015 Last revised: 28 Aug 2015
Date Written: February 10, 2015
Previously, the U.S. Executive made an astonishing claim that human rights law does not apply during an armed conflict. Others have claimed that even if human rights law generally applies it is trumped or displaced by applicable laws of war through operation of an alleged primacy of laws of war as so-called lex specialis. Neither claim has merit. As this article demonstrates, in view of overwhelming patterns of legal expectation and international and domestic decisions a claim that human rights law does not apply during war is decidedly false and cannot be taken seriously. Similarly, there is no support in treaties or customary international law for a broad law of war displacement of human rights that are applicable during war.
Significantly, the opposite can occur. As demonstrated in this article, customary human rights have a recognized and unavoidable primacy in any social context as rights based in the United Nations Charter, some customary human rights have an additional peremptory status in any social context as rights jus cogens, and some treaty-based human rights are nonderogable during war and in any other social context. The important issues are not whether human rights law can apply during war or is necessarily displaced, but who has a relevant human right, in what particular context during war, with what identifiable criteria regarding its reach and content, and with what consequences with respect to the conduct of war. As noted in this article, compliance with global human rights law on a foreign battlefield should not inhibit use of lawful measures of warfare under the laws of war. Indeed, some law of war requirements provide contextually relevant meaning, some are symmetrical, and some are more strict and limiting than those under global human rights law. More generally, compliance with laws of war on a foreign battlefield should assure compliance with global human rights law.
Keywords: arbitrary, armed conflict, battlefield, collective punishment, detention, disappearance, due process, Geneva Conventions, human right, ICCPR, jus cogens, law of war, lex specialis, nonderogable, non-refoulement, cccupied, torture, U.N. Charter, war
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