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