Комментарий к ст. 20
This monograph is dedicated to both theoretical and practical problems of joint application of International Humanitarian Law and International Human Rights Law norms in armed conflicts. Special emphasis is made on the contradictions between norms of both branches of International Law in the sphere of protection of right to life and right to liberty. Conclusions made by the author are based on the analysis of norms of International Law, practice of their application by international organizations and states, decisions of the International Court of Justice, The UN Human Rights Committee, The European Court of Human Rights, The Inter-American Commission and Court of Human Rights, The African Commission on Human' and Peoples' Rights, international and mixed criminal courts and tribunals, as well as legal literature.
Theoretical inquiries of the author have continued since the first edition of the monograph has been published in 2015. In particular, an emphasis has been made on the possibilities of integration between norms of International Humanitarian Law and Human Rights Law, which derive from the structure of subjective public rights and can be deduced from relationship between derogation from human rights obligations and limitation of human rights. Economic, social and cultural rights in armed conflicts have been analyzed in more depth. Moreover, as practice of international judicial and quasi-judicial bodies is still continuing to develop, the new edition of the monograph takes into account all new decisions.
Decisions of the European Court of Human Rights made a contribution to the development of the theoretical conceptions describing relationship between International Humanitarian Law and International Human Rights Law by specifying direction to a wider application of human rights norms regulating right to life in armed conflicts. This article deals with three main directions of this development: firstly, the strengthening of examination in sphere of fulfillment by states of their negative obligations concerning right to life, secondly, specification of duties on preventive measures serving for protection of civil persons and objects, and, thirdly, enlargement of the scope of application of the obligation on prosecution of lethal cases in armed conflicts.
Not all the questions related to the protection of right to life in armed conflicts have become subject of consideration of the international judicial and quasi-judicial bodies. Nonetheless already existing case-law allows to draw a conclusion that the role of International Human Rights Law in regulation of right to life has been changing, at least, in respect of non-international armed conflicts. These changes by their nature reflect the process of integration between norms of International Humanitarian and Human Rights Law, which leads to the strengthening of human rights protection in the specific circumstances of armed conflicts.
The author casts doubts on existence of a collision between norms of International Humanitarian Law and International Human Rights Law in sphere of protection of the right to life and draws a conclusion that the wording and systematic interpretation of the international treaties, as well as subsequent practice of its application allow to unify the criteria of assessment of legality of deprivation of life in armed conflicts in one test, which unifies requirements of both branches of International Law. Application of this complex test strengthens the rules, governing use of force in armed conflicts, in comparison to the norms of International Humanitarian Law and indicates a new stage of development of International Law applicable in armed conflicts.
Not all cases of targeted killings occurring in armed conflicts, which could have been regarded to be legal under provisions of IHL, would stay examination under criteria of a new complex approach. Far from majority of these targeted killings would satisfy to the requirements of a prudent preparation and planning, absolute necessity, strict proportionality and an effective investigation. However, as a result, it cannot be argued that all cases of intended use of force against concrete persons suspected to be members of armed groups or civilians taking a direct part in hostilities during armed conflicts are illegal. There remains a small group of situations, in which the whole range of circumstances will justify these actions, but overwhelming majority of them will be situated in the real “combat” sector of military operations. Application of the “complex test” would definitely have a significant impact on the grey areas, rendering almost all of cases belonging to it out of law.