The right to life in internal armed conflict: a study of the Chechen cases before the European Court
Abstract: A thesis about the right to life in internal armed conflict must necessarily take both human rights law and humanitarian law into account. Human rights law, which has codified the right to life in its main instruments, is applicable both in time of peace and in time of war, whereas humanitarian law is only applicable during armed conflict. The question is thus how these two branches of law influence each other, and if IHL can be considered lex specialis in relation to human rights law. The right to life is protected during armed conflict, through various provisions in IHL. Civilians have their lives protected through the principles of distinction and proportionality: the belligerent parties must distinguish between combatants and civilians, and only combatants may be attacked. These principles are applicable in both international and non-international armed conflict. In international armed conflict, there are groups of protected persons (the wounded, sick and shipwrecked, prisoners of war, and civilians) who are protected from murder and inhumane treatment. In internal armed conflict there is no such group of protected persons. Instead, anyone not taking an active or direct part in the hostilities must be treated humanely, which includes respect for his or her right to life. Human rights law protects the right to life in both time of peace and time of war. Article 6 ICCPR and Article 2 ECHR are always applicable, but contain exceptions for lawful acts of war. Even though the ICCPR does not mention this specifically, lawful acts of war will not be regarded as 'arbitrary killings' and will therefore not lead to a violation of the right to life. The ECHR mentions lawful acts of war as a specific exception, but this entails that a State has made a notice of derogation under Article 15 of the ECHR. In several cases concerning Chechnya, the European Court of Human Rights has investigated violations of the right to life in armed conflict situations. While the Court does not answer the question of whether or not there was an (internal) armed conflict going on in Chechnya, the Court refers to terms used in IHL to describe the various situations it was asked to examine. Especially in the cases of Isayeva, and Isayeva, Yusupova and Bazayeva, the Court investigated situations that clearly live up to the threshold of Common Article 3 GC, and maybe even to Additional Protocol II to the Geneva Conventions, both applicable in non-international armed conflict. However, as Russia never made a derogation under Article 15 ECHR, the Court could not but investigate the situation in Chechnya against 'a normal legal background', meaning it applied the Convention in full. It has been argued that the European Court has interpreted certain articles of humanitarian law in a way that is at odds with this law. I do not agree with this.The Court has on the contrary only used human rights law, applying this law to armed conflict situations. The principles the Court uses and which can be deducted from the Chechen cases have their counterparts in IHL - such as the principle of proportionality and the prohibition of indiscriminate attacks. The Chechen cases are important, since they show that human rights law can mend some of the holes that can be found in the protection granted by IHL in internal armed conflict. Human rights law grants victims the possibility to complain to a judicial body, thereby giving them a possibility for redress and providing for justice. On the other hand, human rights law does not provide all the answers. Whereas IHL binds both belligerent parties, be they States or insurgent groups, human rights law only conveys duties upon the State. This means that serious violations of human rights law by insurgent groups cannot be dealt with by human rights law monitoring or judicial mechanisms. A process, by Theodor Meron called 'the humanization of the law of war', is also showing in the Chechen cases. Human rights law and humanitarian law are growing closer together, influencing each other. This may in the end be to the benefit of victims of war. However, both branches still have their own strengths, as well as their own problems to deal with. To fill the gaps that exist in - or in between - human rights law and humanitarian law, it has been suggested to introduce a minimum humanitarian standard, applicable at all times.
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