A/HRC/15/21
not nationals”. In a situation of armed conflict, military force can only be used against a
combatant or against civilians participating actively and directly in combat activities, which
cannot be said of the civilians on the Mavi Marmara.
3.
International human rights law
67.
Israel is party to the core human rights treaties relevant to the situation under
consideration.54 The vessels in the flotilla whilst in international waters were also subject to
the jurisdiction of the flag states, namely Cambodia (Rachel Corrie), Comoros (Mavi
Marmara), Greece (Eleftheri Mesogios), Kiribati (Defne Y), Togo (Sfendoni), Turkey
(Gazze 1) and the United States of America (Challenger 1), The international human rights
treaties accepted by each of these States at the time of the incident under investigation were
applicable on the relevant vessels.
68.
Human rights law in its entirety continues to apply in situations of armed conflict,
except for derogations in accordance with treaty provisions relating to times of
emergencies. In this respect the Mission notes the recent reiteration by the Human Rights
Committee of its view that “the applicability of the regime of international humanitarian
law during an armed conflict, as well as in a situation of occupation, does not preclude the
application of the International Covenant on Civil and Political Rights, except by operation
of article 4, whereby certain provisions may be derogated from in a time of national
emergency.”55 In its General Comment 29, the Human Rights Committee specified that the
Covenant continues to apply in situations of armed conflict to which the rules of
international humanitarian law are applicable. “While, in respect of certain Covenant rights,
more specific rules of international humanitarian law may be especially relevant for the
purposes of the interpretation of Covenant rights, both spheres of law are complementary,
not mutually exclusive.”56
69.
Moreover, in the Nuclear Weapons Advisory Opinion (1996) the ICJ affirmed the
applicability of the Covenant during armed conflict, stating that “In principle, the right not
arbitrarily to be deprived of one’s life applies also in hostilities. The test of what is an
arbitrary deprivation of life, however, then falls to be determined by the applicable lex
specialis, namely, the law applicable in armed conflict which is designed to regulate the
conduct of hostilities. Thus whether a particular loss of life, through the use of a certain
weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6
of the Covenant can only be decided by reference to the law applicable in armed conflict
and not deduced from the terms of the Covenant itself.”57
70.
In its Advisory Opinion on the Legal Consequences of the Construction of a Wall in
the Occupied Palestinian Territory, the Court considered that "the protection offered by the
human rights conventions does not cease in case of armed conflict, save through the effect
of provisions for derogation of any kind to be found in Article 4 of the International
Covenant on Civil and Political Rights. As regards the relationship between international
humanitarian law and human rights law, there are thus three possible situations: some rights
may be exclusively matters of international humanitarian law; others may be exclusively
54
55
56
57
16
ICCPR, ICESCR, CEDAW, ICERD, CAT, CRC and the OP on the involvement of children in Armed
Conflict.
CCPR/ISR/CO/3, para. 5
Human Rights Committee, general comment No. 29, para. 3, also incorporated into general comment
31, para. 11.
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, 1996 ICJ
Reports, p. 226, para. 25.
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