law_war_manual15

For example, the right to challenge the lawfulness of an arrest before a court provided inArticle 9 of the International Covenant on Civil and Political Rights (ICCPR) would appear toconflict with the authority under the law of war to detain certain persons without judicial processor criminal charge. 91 However, the United States has understood Article 9 of the ICCPR not toaffect a State’s authorities under the law of war, including a State’s authority in bothinternational and non-international armed conflicts to detain enemy combatants until the end ofhostilities. 92 Some international courts or commissions have interpreted the rights conveyed byhuman rights treaties in light of the rules of the law of war, as the applicable lex specialis, whenassessing situations in armed conflict. 93On the other hand, during armed conflict, human rights treaties would clearly becontrolling with respect to matters that are within their scope of application and that are notaddressed by the law of war. For example, a time of war does not suspend the operation of theICCPR with respect to matters within its scope of application. Therefore, as an illustration,participation in a war would in no way excuse a State Party to the ICCPR from respecting and91 International Covenant on Civil and Political Rights, art. 9(4), Dec. 19, 1966, 999 UNTS 171, 176 (“Anyone whois deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that thatcourt may decide without delay on the lawfulness of his detention and order his release if the detention is notlawful.”).92 Observations of the United States of America on the Human Rights Committee’s Draft General Comment 35:Article 9, 22, Jun. 10, 2014 (“Given that international humanitarian law is the controlling body of law in armedconflict with regard to the conduct of hostilities and the protection of war victims, the United States does notinterpret references to ‘detainees’ and ‘detention’ in several paragraphs to refer to government action in the contextof and associated with an armed conflict. For example, paragraph 15 incorrectly implies that the detention of enemycombatants in the context of a non-international armed conflict ‘would normally amount to arbitrary detention asother effective measures addressing the threat, including the criminal justice system, would be available.’ On thecontrary, in both international and non-international armed conflicts, a State may detain enemy combatantsconsistent with the law of armed conflict until the end of hostilities. Similarly, to the extent paragraphs 15 and 66are intended to address law-of-war detention in situations of armed conflict, it would be incorrect to state that thereis a ‘right to take proceedings before a court to enable the court to decide without delay on the lawfulness ofdetention’ in all cases. In addition, to the extent the discussion of an individual right to compensation under Article9 in paragraphs 49-52 is intended to extend to individuals detained in the context of an armed conflict, as a matter ofinternational law, the rules governing available remedies for unlawful detention in the context of an armed conflictwould be drawn from international humanitarian law.”).93 Coard, et al. v. United States, Inter-American Commission on Human Rights, Organization of American States,Case 10.951, Report 109/99, 42 (Sept. 29, 1999) (“[I]n a situation of armed conflict, the test for assessing theobservance of a particular right, such as the right to liberty, may, under given circumstances, be distinct from thatapplicable in a time of peace. For that reason, the standard to be applied must be deduced by reference to theapplicable lex specialis.”); Juan Carlos Abella v. Argentina, Inter-American Commission on Human Rights,Organization of American States, Case 11.137, OEA/Ser.L/V/II.98, 161 (Nov. 18, 1997) (“[T]he Commission mustnecessarily look to and apply definitional standards and relevant rules of humanitarian law as sources ofauthoritative guidance in its resolution of this and other kinds of claims alleging violations of the AmericanConvention in combat situations.”); Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996I.C.J. 226, 240 (25) (“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 lexspecialis, namely, the law applicable to armed conflict which is designed to regulate the conduct of hostilities.”).23