A/HRC/16/47
III.
Thematic considerations
A.
Application of the international instruments on human rights to
situations of armed conflict by the Working Group on Arbitrary
Detention
37.
In some instances, the Working Group on Arbitrary Detention is seized of
communications concerning alleged arbitrary detention by governmental authorities in
situations of armed conflict. Some argue that such situations are outside the mandate of the
Working Group as they are covered by international humanitarian law.
38.
However the application of international humanitarian law does not necessarily
exclude the Government’s obligations under international human rights law.
39.
The Human Rights Committee recently reiterated 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 Covenant, except by operation of
article 4, whereby certain provisions may be derogated from in a time of national
emergency9.”
40.
Earlier, in its general comment No. 31, the Human Rights Committee noted that “the
Covenant applies also 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 specially relevant for the purposes of the
interpretation of Covenant rights, both spheres of law are complementary, not mutually
exclusive10 .”
41.
The International Court of Justice, in its Advisory Opinion on the Legal
Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
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 matters of human rights law; yet others may
be matters of both these branches of international law11.”
42.
The Court subsequently reiterated this finding in its binding judgment in the case of
Democratic Republic of the Congo v. Uganda: “The Court first recalls that it had occasion
to address the issues of the relationship between international humanitarian law and
international human rights law and of the applicability of international human rights law
instruments outside national territory in its Advisory Opinion of 9 July 2004 on the Legal
Consequences of the Construction of a Wall in the Occupied Palestinian Territory … It thus
concluded that both branches of international law, namely international human rights law
and international humanitarian law, would have to be taken into consideration. The Court
9
10
11
Consideration of reports submitted by States parties under article 40 of the Covenant, concluding
observations of the Human Rights Committee, CCPR/C/ISR/CO/3, 3 September 2010, para. 5.
Human Rights Committee, general comment No. 31 on the nature of the general legal obligation
imposed on States Parties to the Covenant, CCPR/C/21/Rev.1/Add.13, 26 May 2004, para. 11. See
also Human Rights Committee, general comment No. 29 on states of emergency (art. 4),
CCPR/C/21/Rev.1/Add.11 (2001), para. 3.
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory
Opinion of 9 July 2004, para. 106.
15
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