Retour 47th Annual Study Session “Armed Conflicts and International Human Rights Law”

Strasbourg , 

As delivered

“Are human rights instruments for the prevention of armed conflicts?” My answer to this question is simple and straightforward: “YES!”

The UN Charter itself declares that the highest purposes of the organisation are “to save succeeding generations from the scourge of war, to reaffirm faith in fundamental human rights, to establish conditions under which justice and respect for international law can be maintained, and to promote social progress and better standards of life.”

Respect for human rights is, indeed, a prerequisite for peace and effective protection of human rights will prevent armed conflicts, be they international or national conflicts.

Human rights norms are nowadays embedded in international law, most often in treaties widely ratified by States and incorporated into domestic law and embraced by peoples of all cultures around the world. In Europe, the European Convention of Human Rights and its Protocols are the instruments of the European constitutional order, bind all Council of Europe member states and constitute the pillar on which the European co-operation and integration is pursued both in the Council of Europe and in the European Union. And when Europe faced again the scourge of war in the 90s and early 2000, the need to sustain the protection of human rights was again in the forefront.

Chris Patten, at that time the EU Commissioner for external relations, stated: “The link between conflict prevention and the promotion of human rights and democracy is abundantly clear. Just as denying basic rights fans the flames of conflict, helping to guarantee those rights can prevent conflict arising in the first place.”

It is indeed important to understand fully that preventing conflicts goes much deeper than simply containing warring parties. It requires fighting the roots of conflict – authoritarian rule, discrimination, inequality, intolerance. It also requires strengthening the institutions of democratic governance and the rule of law, which are capable of securing human rights for all. Although it is illusory to believe that our societies will become totally immune to social, political or ethnic tensions, democratic habits will make it easier to find channels of dialogue and convergence, so that each member and each group can participate fully and efficiently in the economic, social and political life of the country.

This is what we call “democratic security”: Respect for Human Rights, Democracy and the Rule of Law are the pre-requisite for peace. Peace in turn, is the conditio sine qua non for stability, prosperity and development.

In his recent report on the state of Democracy, Human rights and the Rule of Law, the Secretary General stresses that this is “a security imperative for Europe”.

In the past months we have seen a gear shift in Europe’s security concerns. Terrorist attacks, uncoordinated response to the migration crisis, persisting conflict and insecurity in Eastern Ukraine and unresolved conflicts in other parts of Europe combined with ongoing economic uncertainty fuel nationalist and xenophobic moves which exploit public anxiety. Trust in the state is declining, as is trust in European institutions.

In this report he found holes in the systems of checks and balances meant to restrain executive power. Too many national judiciaries suffer from undue political interference.

Many member states fail to duly protect the safety of journalists. Freedom of expression and freedom of association come under attack, all the more often. In parallel, many vulnerable groups in our societies, including migrants and refugees but also Roma and other minorities as well as LGBTI persons, are victims of prejudice and exclusion. Large segments of our societies are impoverished and subject to marginalization.  Such conditions nourish the distrust many individuals feel towards their political systems, towards the Rule of Law, towards the ability of nations and people to live together. And this is a worrying phenomenon.

The report does not rely on vague assumptions and impressions. It is based on a thorough consideration of the results of monitoring procedures prescribed and agreed by our member states themselves.

It relies on the judgments of the European Court of Human Rights, on the decisions and conclusions of the European Committee of Social Rights, on the recommendations of the European Committee for the Prevention of Torture (the CPT), on the findings of the Venice Commission, of the Council of Europe Commissioner for Human Rights, of the European Commission against Racism and Intolerance (ECRI) and other expert bodies and institutions which perform a very essential conflict prevention role: Drawing the attention of Governments to worrying trends for Human Rights, for Democracy, for the Rule of Law, and ultimately warn about threats to security on our continent.

Can we address this worrying trend?

We certainly can! We can show that safe and stable states and societies are those which foster cohesion and act in concert with their neighbours.

We can embark on judicial reforms to shore up independence and impartiality of courts and help states maintain robust checks and balances across their democratic institutions.

We can better safeguard freedom of expression, better protect human rights defenders, we can set common standards for massive surveillance, for blocking and filtering Internet sites. We can support all actions that contribute to avoiding exclusion, prejudice and marginalization. And we shall do all this on the basis of the commonly agreed human rights standards as enshrined in the European Convention on Human Rights and the European Social Charter.

We shall do this because human rights are central to security. And this is why human rights are indeed instruments for preventing conflicts.

You may legitimately ask the following question: Have human rights actually prevented any armed conflicts in the Council of Europe member states?

I am convinced the reply to this question is positive. It is of course difficult to identify a specific conflict that has not taken place because of the efficient protection of human rights or because of democratic governance and respect for the Rule of Law. But we all know that the Council of Europe was established and developed as human rights watchdog, in response to the terrible human rights abuses, the human suffering and the cost of two devastating wars.

We cannot ignore that co-operation between democratic nations, bound together by a common respect for human rights and fundamental freedoms, was achieved over half a century of peace, stability and prosperity in Europe. This does not mean that we have experienced no conflicts whatsoever. But whenever armed conflicts have occurred this has been preceded by instability, dictatorship and serious violations of human rights that made parties perceive their differences as irreconcilable. Human rights call for responsible behavior on the part of every individual being and of the society at large.

Such a responsibility consists among other things in solving disputes through the agreed channels of justice, through democratic procedures and institutions. Armed conflicts will occur when respect for the other’s rights – be it an individual, a group or a nation – has disappeared and has left no ground of common values, principles and standards, such as respect for human rights, on which to build a future.

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The role of Human Rights before and during conflict:

If armed conflicts are a failure to protect human rights, does this mean that human rights are erased from the landscape as soon as the armed conflict has begun?

This question leads us back to Cicero’s phrase: “Inter arma silent leges ", that is to say: “in times of war, the law falls silent".

It is clear that this is no longer valid. Conventional humanitarian law applies to armed conflicts for more than a century and war crimes and crimes against humanity that take place in times of war are prosecuted and punished.

What about human rights? Are they applicable only in times of peace? Is there a distinct field of competence between human rights law on the one side – presumably applicable in times of peace - and humanitarian law on the other side –applicable in times of war?

I am sure that during the forthcoming days you will have the opportunity to look into this question in detail and in depth and define how human rights and humanitarian law interact.

I cannot however avoid recalling that the objective of human rights law is to protect the value of the human being as such, to protect his/her dignity as a fundamental value of our civilization. From this perspective, both human rights and humanitarian law aim at protecting the same fundamental value. Setting aside human rights in case of armed conflicts - be they national or international- would be totally absurd: As Nelson Mandela said “To deny people their human rights equals challenging their very humanity”.

One might argue that this is a legalistic approach and that applying human rights in times of armed conflict is unrealistic. However, both the wording of human rights treaties and the case law of the European Court of Human Rights and of other courts points to the contrary.

For example, the European Convention on Human Rights in its Article 15 provides that “any High Contracting Party may take measures derogating from its obligations under (the) Convention, in time of war or other public emergency threatening the life of the nation”. The same Article stipulates that there can be “no derogation from (the right to life), except in respect of deaths resulting from lawful acts of war”. Similarly, Protocol No 6 to the ECHR which provides for the abolition of the death penalty, foresees in its Article 2 a derogation enabling States Parties to impose by law the death penalty in times of war or in case of imminent threat of war.

It follows unequivocally from the above that the ECHR applies in armed conflicts and the European Court of Human Rights has indeed applied the Convention in a number of occasions.

For example:

-           In the interstate application of Cyprus v. Turkey concerning the conduct of military operation in the North of Cyprus in 1974, the Court found violations of the right to life and the right to liberty (Articles 2 and 5 of the ECHR) because of the failure of the authorities to conduct effective investigations into the whereabouts and fate of missing persons who disappeared in life-threatening circumstances or in respect of whom there was an arguable claim that they were taken in custody at the time of their disappearance;

-           In several cases concerning the anti-terrorist operations conducted by the Turkish security forces against the PKK (Workers’ Party of Kurdistan), the Court found violations of the Convention on account of deaths as a result of excessive use of force,  disappearances, ill-treatment and destruction of property;

-           In more than 250 judgments the Court found violations of the ECHR in connection with the armed conflict in the Chechen Republic of the Russian Federation; many of these concerned enforced disappearances; others killing and injuries of civilians, destruction of property and homes, indiscriminate use of force, use of landmines, torture and illegal detention.

-           The Court also examined a case whereby the applicant complained about the failure of the authorities of Bosnia and Herzegovina to investigate the disappearance and death of her husband (Palic v. Bosnia and Herzegovina)

-           The case of Al-Skeini and Others v. UK concerned deaths resulting from shots by British soldiers in the framework of military operations in Iraq. The Court found a violation of the right to life because of the lack of effective investigations into these deaths.

A similar violation was found against the Netherlands concerning the death of an Iraqi civilian during an incident involving the Netherlands Royal Army (Jaloud v. NL). In another case (Al-Jedda v. UK) the Court found a violation of the right to liberty because the British authorities had placed the applicant into indefinite detention without charge. 

It is worth noting two additional elements in this respect:

First, that the ECHR only allows for those derogations from human rights which are “strictly required by the exigencies of the situation”. Limitations to human rights have to be necessary and proportional to the threat. In addition, no derogation whatsoever can be made to the prohibition of torture, ill treatment and slavery or to the principle of non-retroactivity of criminal law.

The second point is that the ECHR requires the State which takes measures derogating from the ECHR to keep the Secretary General of the Council of Europe “fully informed of the measures which it has taken and the reasons therefor”. Definitely, under the ECHR – and I dare say under human rights law - violent conflicts requiring measures derogating from human rights are to be exceptional and limited in time.

That human rights law applies in armed conflicts and imposes the principle of proportionality and necessity to measures taken during the conflict operations has further consequences:

-           It will humanize the conflict, limit loss of life and minimize other suffering (at least as regards the military operations engaged by the State) by restricting the use of force to the extent required by the circumstances and by obliging the military authorities to take due account of the risks and needs of civilian population;

-           It will require a certain degree of judicial control. As Chief Justice Rehnquist wrote in his book about civil liberties in war time “it is both desirable and likely that more careful attention be paid by the courts to the basis for the government's claims of necessity as a basis for curtailing civil liberty”;

-           It is also likely that human rights will constitute a basis for accountability for any abuses during the armed conflict. Such accountability, irrespective of whether it will take the form of individual criminal prosecutions of a perpetrator of human rights violations, of recognition of wrongdoings followed by compensation for material and other losses, or of other transitional justice schemes, will satisfy the need for justice and constitute the basis for sustainable peace building after the conflict.

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Respect for Human Rights to end conflict:

This brings me to my last point.

Experience shows that human rights are not only likely to prevent conflicts, not only apply in times of conflicts to ease the suffering resulting therefrom, but are also essential to end armed conflicts. Examples of this are the Dayton Agreements in respect of the war in Bosnia or the Good Friday Agreements in respect of the so-called “troubles” in Northern Ireland. The extensive references to human rights in these peace building instruments show how much human rights elements are essential for conflict resolution and for sustainable peace building. Even where the need to achieve a negotiated settlement to a conflict with minimum loss of life, may fail to give sufficient weight to all human rights aspects (as shown in the Sejdic and Finci judgment v Bosnia and Herzegovina), human rights are an essential component of the negotiation process and of the constitutional engineering that leads to stability.

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As I am about to conclude this presentation, I would like to come back to the initial question and underline that yes, human rights are instruments for conflict prevention. And I would add: Human rights are also instruments to reduce suffering during the conflicts, to resolve conflicts and to build sustainable post conflict peace.

I would thus suggest the following:

1.         When we deal with armed conflict prevention we need not only to contain violence but also address the underlying causes of conflict. These include often tyranny, hatred, racism, discrimination and poverty. With improved implementation of agreed human rights standards the risk of violent conflicts will be drastically reduced.

2.         In order to be able to take action in time, we must be able to recognize quickly the signs of human rights violations leading to conflicts. Monitoring the human rights situation in all places where these rights are under stress is not a luxury but a necessity. This is true in particular for all unresolved conflict zones, territories that escape the control of human rights abiding Governments, or occupied territories.

3.         Whenever armed conflicts do erupt human rights should remain a priority. Irrespective of the derogations from international human rights obligations that these conflicts may entail, the principles of necessity and proportionality will minimize loss of lives and other suffering.

4.         Ending the conflict and building peace shall be based on human rights protection. This includes justice for all and putting an end to impunity. Without justice there can be no sustainable peace.

Kofi Anan summarized all this in one sentence that I wish to share with all of you:

"We will not enjoy development without security, we will not enjoy security without development, and we will not enjoy either without respect for human rights."