One of the novelties of modern international law is that states have granted separate rights to individuals who live within their jurisdiction. Recognising that individuals have rights means that states are bound to comply with the international obligations deriving from such rights.
IHRL grants civil and political rights (such as the right to life, to humane treatment or to fair trial), and economic social and cultural rights (such as the right to health, to education or to housing) to individuals. IHRL treaties include the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights and the African Charter on Human and Peoples’ Rights.
States are obliged to respect, protect, promote and fulfil the rights they have recognised, both in peacetime and situations of conflict. The right to life applies throughout a conflict, although it needs to be noted that the ICCPR prohibits ‘arbitrary’ killings and ILAC permits the killing of enemy combatants and even civilians where the attack was targeted at a military objective – the so-called ‘collateral damage’.
Furthermore, under IHRL states are allowed to derogate from certain obligations under a treaty if certain conditions are fulfilled. Rights that cannot be derogated under any circumstance include the right to life, the right to humane treatment and the prohibition of slavery. Other rights, like the right to personal liberty or freedom of expression, can be derogated from. According to the ICCPR, for example, a state can derogate when there is ‘a public emergency that threatens the life of the nation’ and if certain requirements of proportionality, necessity and non-discrimination are present. During the Rwandan genocide many people fled into neighbouring states. Such massive movement of people across the borders might represent a threat to a neighbouring state like Uganda or Burundi, both of which have ratified the ICCPR. Therefore, were they to have a legitimate claim, they could derogate rights to personal liberty or freedom of expression.
Moreover, and not the same as a derogation, many rights have built-in ‘clawback’ clauses restricting the scope of certain rights in specific circumstances. So, under the ICCPR, states parties are allowed to limit their protection of the right to freedom of expression to uphold, for example, national security and public order.
As noted, IHRL applies both in peacetime and in conflict to persons who are within the jurisdiction of a particular state, not just its territory. Thus, for example, a state party to the ICCPR could breach its treaty obligations when it acts outside its territory if the violation was within its extraterritorial jurisdiction.
How could such jurisdiction be established? The requirement is that of ‘effective control.’ In the ‘war on terror’, for instance, the United States and the United Kingdom are claimed to have been instrumental in the planning and implementation of extraordinary renditions, and would be responsible for breaching rights under the ICCPR if it is proven that they exercised ‘effective control’ over the disappearances, torture and lack of fair trial guarantees that took place in countries like Pakistan. The meaning of ‘effective control’ continues to be debated by states and relevant bodies.
The consequences of extraterritorial application of human rights treaties are important for the protection of the individual with respect to the cross-border effects of conflict since liability might arise for actions and omissions inside or beyond its borders. The question remains open whether an ICC indictment before the end of a conflict, as in the case of Hassan al-Bashir and his colleagues in Sudan or Joseph Kony in Uganda, inhibits or helps the resolution of the conflict.