Relationship between international humanitarian law and human rights

relationship between international humanitarian law and human rights

International armed conflicts (i.e. an armed conflict between sovereign states), where humanitarian law will be applicable to its full extent;. International Humanitarian Law and Human Rights. the similarities and differences between international humanitarian law (IHL) and international human rights law Lays down rules binding governments in their relations with individuals. The relationship between international humanitarian law. (IHL) and international human rights law (HR). Gro Nystuen, Oslo Law Faculty, Center for Human.

This seems problematic, given that both conventions restrict the possibility to derogate to specific rights; most importantly, they do not allow states to derogate from the right to life where many of the conflicts between international humanitarian law and human rights arise in practice.

relationship between international humanitarian law and human rights

Unlike in its previous jurisprudence, however, the European Court argued that the British government had explicitly asked the Court to disapply or modify Convention rights in favour of international humanitarian law.

Drawing on article 31 3 of the Vienna Convention, the Court further reasoned that it was state practice not to derogate from human rights instruments during international armed conflicts and that it may, moreover, take other rules of international law, such as international humanitarian law, into account in interpreting the Convention.

It proceeded to read article 5 of the European Convention in light of the Geneva Conventions, even though this ultimately entailed disapplying some of its procedural safeguards.

In doing so, it did, however, interpret the Geneva requirements to provide for a 'competent body' to review the security detention of civilians articles 43 and 78 GC IVagain in light of article 5 of the European Convention, requiring that such a body, while not a court, at least 'provide sufficient guarantees of impartiality and fair procedure to protect against arbitrariness'.

This more recent approach of the European Court aligns it more closely with the Inter-American Commission, 23 and many legal scholars who have taken the position that the relationship between human rights and humanitarian law can only be decided with regard to the specific concrete case and context.

The advantages and downsides of the different approaches have been explored elsewhere in the literature. How have the African Commission and the African Court so far approached this question and what approach to international humanitarian law fits best with the African system? Before going into the details of existing case law, it is important to set out the basic textual parameters for the application of international humanitarian law under the African Charter.

To begin with, unlike the European and American Conventions, the African Charter contains no explicit derogation clause for situations of emergency or war.

This absence of a derogation clause suggests that Charter rights apply both in times of peace and armed conflict 28 -and this is a point frequently made by the African Commission, as will be seen. Importantly, articles 60 and 61 of the African Charter explicitly allow the African Commission to have regard to other sources of international law. Indeed, they instruct it to 'draw inspiration from international law on human and peoples' rights' article 60 and to article 61 take into consideration, as subsidiary measures to determine the principles of law, other general or special international conventions, laying down rules expressly recognised by member states of the Organisation of African Unity, African practices consistent with international norms on human and peoples' rights, customs generally accepted as law, general principles of law recognised by African states as well as legal precedents and doctrine.

Since international humanitarian law does not, at least in the traditional sense, represent 'international law on human [ This includes examining state reports and promoting human rights in Africa more broadly.

In the exercise of this function, the Commission has repeatedly called on state parties to observe the rules of humanitarian law.

IHL and human rights law

In its early decisions, which were generally very short, the Commission did not at all or only in passing refer to international humanitarian law, in spite of the existence of armed conflicts. Typically, it merely insisted on the applicability of the African Charter even in times of 'war'.

The first case in this regard represents the Commission's finding on grave and systemic human rights violations in Chad Chad Mass Violations case where it did not explicitly mention humanitarian law, but emphasised that 34 [t]he African Charter, unlike other human rights instruments, does not allow for state parties to derogate from their treaty obligations during emergency situations. Thus, even a civil war in Chad cannot be used as an excuse by the state violating or permitting violations of rights in the African Charter.

The African Commission reaffirmed this position in a later finding on Sudan, 35 at the time involved in a civil war, albeit in a less absolute key, emphasising that '[t]he restriction of human rights is not a solution to national difficulties: It is also important to note that both the Chad and the Sudan cases dealt with situations of civil war and, hence, non-international rather than international armed conflicts, where humanitarian law is least worked out as a matter of law and its relationship with human rights has long been unclear.

However, things changed in the African Commission's later jurisprudence. For the first and, to date, only time, the Commission explicitly addressed humanitarian law in some detail in its decision on the DRC conflict. The Commission's treatment of international humanitarian law here is both detailed and unclear and thus requires closer examination.

Already in the admissibility phase, the Commission draws on articles 60, 61 and 23 to argue that the activities of the armed forces of the respondent state parties are matters of humanitarian law and hence 'fall within the mandate of the [African] Commission'.

relationship between international humanitarian law and human rights

Viljoen has argued that it suggests a separation of humanitarian law from the Court's actual mandate human rightsagain affirming that the latter are applicable in cases of armed conflict, 43 but it may also denote that the Commission implicitly assumes a mandate for humanitarian law based on articles 60 and 61, invoked immediately afterwards.

It hence leaves open the question of which of the two common approaches of human rights bodies to humanitarian law the African Commission is going to follow: In the following discussion on the merits, the African Commission continues oscillating between these two approaches.

It is, therefore, not entirely clear whether these acts constitute Charter violations merely on the basis of article 61 or more broadly of certain Charter rights read in light of the instructions of article The subsequent arguments on the merits then shift back and forth between a more independent international humanitarian law analysis on the basis of article 61 and an interpretive approach that reads African Charter rights in light of international humanitarian law.

The African Commission engages in comparative detail with individual provisions in the Geneva Conventions, finding multiple violations of humanitarian law, which are classified as African Charter violations merely on the basis of articles 60 and It also offends both the African Charter and the Convention on the Elimination of All Forms of Discrimination against Women; and on the basis of articles 60 and 61 of the African Charter find the respondent states in violation of the Charter.

This suggests that rather than reading African Charter rights merely in light of international humanitarian law, the African Commission treats international humanitarian law essentially as a part of the Charter, incorporated by article This impression is reinforced in the following analysis, where the Commission again analyses the same acts, but this time in light of both international humanitarian law and African Charter rights.

In this vein, for example, it qualifies the mass burial of victims of the conflicts as a violation both of the right to cultural development in article 22 of the African Charter and additionally as prohibited under article 34 of the Additional Protocol I and, hence, as a violation of the African Charter on the basis of articles 60 and However, even here its formulation is vague at best: By parity of reason, and bearing in mind articles 60 and 61 of the [African] Charter, the respondent states are in violation of the said Charter with regard to the just noted article 23 [of the African Charter].

Some paragraphs later, the destruction of the dam is additionally and, rather in passing, also qualified as a violation of the Charter's right to property. However, if the Commission really were taking only international humanitarian law into account in interpreting human rights, one would expect to see a different kind of legal analysis that starts out with the human rights provision in question and then draws on international humanitarian law to give content to this provision, in discussing its scope or limitations.

One would, for example, expect to see the Commission analyse whether the destruction of the dam violates the right to property or, for that matter, the right to national and international peace and security. The first question in this regard would presumably be whether the dam constituted public or private property and if the first, whether public property enjoys protection under the African Charter.

In this latter regard, the African Commission might then have drawn on article 23 of the Hague Convention with its qualified protection of the 'enemy's property' to argue for a broad reading that includes public property. In the next step, one would expect the Commission to engage with the question whether the right to property could have been limited as a matter of general interest to the community.

Again, the Commission might now have taken the limitations of the Hague Conventions for cases of military necessity into account. Alternatively, if the Commission wanted to base its argument on article 23, one would expect some more detailed analysis of what peace and security implies, drawing only in the second step on international humanitarian law.

But none of this really matches the Commission's approach. Instead, the international humanitarian law analysis of particular acts more often than not stands by itself. There is either no explanation of how and why the Commission incorporates international humanitarian law within a particular African Charter right where one would have expected a much more detailed legal analysis of the Charter right in question, or the Commission straightforwardly qualifies violations of international humanitarian law as Charter violations under articles 60 and The destruction of the hydroelectric dam, for example, is qualified three times as an African Charter violation: The direction changes again in a later decision on the Darfur conflict, where the African Commission once again takes a more interpretive approach.

Recognising that an 'armed conflict' 53 has taken place in Darfur, it incorporates in its reasoning explicit references to the humanitarian law principle of distinction, pointing out that '[t]he respondent state, while fighting the armed conflict, targeted the civilian population, instead of the combatants. This in a way was a form of collective punishment, which is prohibited by international law. The most likely reply may be that Commission members either did not engage sufficiently with this question at all, or perhaps that their composition had changed between the two cases and that the new members simply took a different position on the issue.

However, given the ambiguous approach to international humanitarian law even within individual decisions themselves, it seems more likely that the Commission has simply not yet developed a firm stance on the role of international humanitarian law in its jurisprudence.

One should, therefore, be wary of treating either the DRC or the Darfur decision as firmly established judicial doctrine. Since then, it has only decided a handful of cases, which partly reflects the fact that some states have not yet ratified the African Court Protocol and even fewer have accepted that individuals may directly access the Court. So far, only one decision of the African Court, a referral from the African Commission, addresses a situation of armed conflict, namely, its decision on provisional measures against Libya.

This may be due in part to the fact that the decision only deals with provisional measures and follows a minimalist French style of legal reasoning. It does, however, call on Libya to end actions contrary to both the African Charter and 'other international human rights instruments to which it is party'.

Of course, this raises the question whether the Geneva Conventions and additional protocols may be considered as 'other international human rights instruments' in this context, on which the Court is explicitly allowed to draw under article 3 of its Protocol. The African Commission's assessment in the DRC decision suggests that the Geneva Conventions do not qualify as human rights treaties, but instead are other international treaties or at least general principles of international law.

On the other hand, one may argue for a more generous reading focusing on the purpose of the relevant treaty or at least particular clauses and, therefore, qualify at least some parts of humanitarian law as a 'human rights instrument', as Viljoen suggests. First of all, the Commission should develop a more coherent and consistent approach to international humanitarian law.

While other international bodies also struggle with this task, a more consistent approach would be especially useful in the African context and in light of the Commission's collaborative role with the Peace and Security Council of the AU PSCwhich has recently taken on a broad peace-keeping mandate.

The same may be true for the African Court, particularly if its merger with the African Court of Justice proceeds, which seems to be unclear at the moment as states seem reluctant to proceed with ratification. Insofar as current decisions either ignore international humanitarian law entirely or apply it more or less directly through article 61, they are hard to square with the text of the Charter. Ignoring international humanitarian law disregards the clear instruction in article 61 'shall' to take international law, such as humanitarian law, into consideration.

relationship between international humanitarian law and human rights

This also presents an important counter-argument to those who are skeptical of any application of international humanitarian law by human rights bodies for reciprocity reasons, given that such bodies can only hold states, but not non-state actors, accountable.

To take international law into consideration 'as subsidiary measures to determine the principles of law' article 61 implies that an interpretive process is already ongoing. According to article 61, humanitarian law can, therefore, play only a subsidiary role; it can help to fill gaps and give content to what are otherwise often vague Charter provisions and thus assist with their application in concrete cases.

IHL and human rights law - ICRC

Although the exact meaning and scope of article 31 3 c are contested, it is not usually understood to provide a means to apply other treaties directly or indeed to replace provisions of one treaty by the rules and principles of another treaty. The interpretive approach suggested by the language of the African Charter has in the European system created problems when the two bodies of law conflict, with the European Court not infrequently applying human rights in the context of armed conflict where international humanitarian law may be more appropriate.

In doing so, it risks overstretching the limits of what states can and are in practice willing to do in a situation of armed conflict.

Some commentators have, therefore, called on the European Court to apply the lex specialis rule in favour of international humanitarian law during armed conflicts, even if this may mean that the Court cannot exercise its jurisdiction in every case.

Such an approach may allow the Commission to recognise conflicts between the two bodies of law where they arise, rather than muddling through them only ultimately to favour African Charter rights, which may not fit the particular situation at hand.

This indeed is a risk of the interpretive approach: By staying within the human rights framework, humanitarian law can only be taken into consideration as long as it does not clearly conflict with the language of Charter rights. If it does, Charter rights must necessarily prevail, and it is then that human rights bodies risk adopting unrealistic perspectives on what states are allowed during armed conflict.

A direct application of international humanitarian law, in contrast, is less prone to subordinating international humanitarian law to human rights in cases of conflict, but it comes with other risks. A direct application of international humanitarian law is not only problematic with regard to the text of the African Charter and the African Commission's mandate, but its benefits are also perhaps more questionable in the African than in the European context.

Many of the problems under the European Convention have arisen because the European Convention sets out both narrow and detailed textual provisions that make an interpretation of Convention rights in light of international humanitarian law more difficult than elsewhere. In particular, the right to life in article 2 and the right to liberty and security in article 5 of the European Convention are framed in very detailed terms that make it difficult to accommodate more lenient international humanitarian law standards with regard to the killing or detention of combatants, as the jurisprudence of the European Court demonstrates.

In contrast, the African Charter sets out individual Charter rights in comparatively less detail and, in doing so, leaves considerable room to take humanitarian law standards into account, as is evident in the traditional fields where problems arise, namely, the rights to life and liberty.

The African Charter merely protects the right to life against arbitrary deprivations and the right to liberty against any deprivation of freedom 'except for reasons and conditions previously laid down by law', similarly ruling out 'arbitrary' arrest or detention. A potential hurdle to reading international humanitarian law into African Charter rights may, however, be article 7 of the Charter which entails a general right to have one's cause heard, comprising 'the right to an appeal to competent national organs against acts of violating his fundamental rights as recognised and guaranteed by conventions, laws, regulations and customs in force' and article 4, 'the right to be tried within a reasonable time by an impartial court or tribunal'.

It, therefore, envisages a more classical law enforcement model and has been read by the Commission more broadly as a right to fair trial, 69 limiting, among others, the jurisdiction of military tribunals to 'offences of a pure military nature committed by military personnel'. The answer is that it does. For once, it seems already doubtful whether article 7 1 a is applicable to international armed conflicts, given that its wording 'competent national bodies' is clearly tailored to domestic rights violations.

Even if we assume that it applies, the wording 'bodies' does in itself not necessarily require more than a status review board for prisoners of war or an 'administrative body' with regard to the security detention of civilians. Insofar as the Commission has understood article 7 more broadly as the right to a fair trial, limiting, inter alia, the jurisdiction of military commissions which will typically be involved in status reviews for prisoners of war and security detention for civilians, it is important to emphasise that it has done so in the context of criminal convictions.

It is, therefore, not in conflict with the Geneva Conventions as long as such bodies are not pronouncing criminal sentences. Of course, this does not mean that military review boards should not be structured and staffed in such a way as to guarantee sufficient fairness and impartiality.

The situation in non-international armed conflicts is different insofar as there is no explicit legal basis for detention in Additional Protocol II, though it is contested whether the rules for international armed conflicts may by analogy apply here. As has been seen, article 7 leaves room for an analogous application of the Geneva rules on detention. In all other cases domestic law must conform to article 7 standards. If one selects the humanitarian law route, however, it seems appropriate in non-international armed conflicts to adopt a human rights-friendly reading of the relevant norms and add, along the lines of the European Court's recent Hassan decision, that there must also be 'sufficient guarantees of [ Of the three rights discussed here, only the right to liberty contains an explicit limitation requirement, namely, that deprivations of liberty must be in accordance with the conditions previously laid down by law.

This broad formulation may suggest that states have wide leverage to curtail the right to liberty, but the African Commission has refused to adopt a broad understanding of this clause as a general 'claw-back' clause. Instead, it has read this formulation more narrowly, requiring in particular that international rather than domestic legal standards must be satisfied, referring to articles 60 and 61 of the Charter.

Commentators have taken this as a broader reference to international practice, requiring in addition that domestic limitations meet proportionality standards in being necessary and proportionate to the interest protected. Providing that rights 'shall be exercised with due regard to the rights of others, collective security, morality and common interest', the Commission has read article 27 to stipulate a broader proportionality requirement. Proportionality offers an assessment of rights limitations that is tied to the aim and purpose of the limitation and is, therefore, broadly suited to deal with situations of both armed conflict and peace.

This is not to say that proportionality implies that anything goes - the robust jurisprudence of many constitutional courts employing proportionality shows that this would be in error 78 - but merely that grave circumstances, such as armed conflict, may justify rights infringements that go beyond what is acceptable in times of peace. There are also instances in case law demonstrating that the parallel application of human rights law and humanitarian law can, in certain cases, face procedural impediments.

The Las Palmeras case before the Inter-American Court of Human Rights involved a situation of internal conflict; while the applicant requested the Court to rule that the respondent state had breached both the American Convention and Common Article 3 of the Geneva Conventions, the respondent state objected that the Court was not competent to apply humanitarian law, because its competence was limited to the American Convention.

IHL and human rights

The Inter-American Commission called upon the Court to adopt pro-active methods of interpretation enabling it to examine Article 4 of the American Convention regarding the right to life in conjunction with Common Article 3. The latter provision was instrumental in interpreting the former. Each of these bodies of law can provide standards for the assessment of the relevant conduct of the state.

The subjects governed by one body of law are frequently also governed by the other body of law, and whatever the formal and procedural constraints on the powers of national and international decision-making bodies, in the exercise of their mandate they are expected, at least by implication, to consider the impact of both human rights law and humanitarian law, to reach the outcomes permissible at the level of international law.

This demonstrates that in the final analysis the protection under humanitarian law is not substantially lower than that under human rights law. It remains to be seen how this process works in terms of specific individual rights. As the Court put it: The test of what constitutes an arbitrary deprivation of life, however, then must be determined by the applicable lex specialis, namely, the law applicable in armed conflict.

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. The real question, however, relates not to the use of Latin phrases, but to whether the essence of lex specialis is to curtail the protection under human rights law or provide more detailed regulation of it.

Under this approach, humanitarian law complements Article 6 with more detailed regulation related to the distinction between civilian and military targets and limiting attacks to the latter, and the avoidance of civilian casualties in line with Article 51 of Additional Protocol I. Thus, humanitarian law serves as further elaboration of the parameters of the right to life in armed conflict, and defines circumstances in which the deprivation of life is or is not arbitrary.

As we have seen, in its preliminary objections judgment the Inter-American Court of Human Rights in Las Palmeras refused to examine the compatibility of the deprivations of life involved in that case from the perspective of Common Article 3 of the Geneva Conventions.

At the merits stage of the same case, the Inter-American Court concluded, by the use of human rights standards only, that the deprivation of life of the relevant persons contravened Article 4 of the Inter-American Convention. Such independent standing of human rights law is both understandable and indispensable — human rights law is designed to respond to the situations it applies to in an autonomous way, if needed.

The specific aspects of the interchangeability of human rights law and humanitarian law in the example of the right to life is demonstrated by the judgments of the European Court of Human Rights relating to armed conflict, notably in the Chechen Republic of the Russian Federation. The principles relating to the observance of the right to life in armed conflicts used by the Court in these cases have the same background as those embodied in the Court's jurisprudence in terms of the general aspects of the use of lethal force by state agents; for instance the McCann case where the European Court found that the use of force by British security agents in Gibraltar fell short of being absolutely necessary.

The deliberate or intended use of lethal force is only one factor however to be taken into account in assessing its necessity. Furthermore, the force used must be strictly proportionate to the achievement of the permitted aims. Turkey that states should make non-lethal weapons available to their forces for use against mixed targets. The Court, dealing with the use of lethal force to quell a not quite peaceful demonstration, accepted that: The gendarmes used a very powerful weapon because they apparently did not have truncheons, riot shields, water cannon, rubber bullets or tear gas.

The case of Khashiyev v. Russia dealt with claims of unlawful deprivation of life in the context of non-international armed conflict, namely the operation of Russian armed forces in taking control of Grozny from the Chechen rebels. The Court found it established that the part of Grozny where the relevant persons were killed had been under the control of Russian forces, 43 that is there were no actual hostilities going on in that area.

In terms of the legal framework applicable to the case, the Court began by observing that the circumstances in which deprivation of life may be justified must be strictly construed.

IHL and human rights | International Committee of the Red Cross

The Court also found it established that the relevant persons were killed by servicemen. Russia, where the European Court dealt with the claims of deprivation of the life of civilian persons in the context of the special operation by Russian forces to round up the rebels with the purpose of destroying or disabling them, and the consequent aerial bombardment.

As the rebels were enticed from Grozny, they arrived in Katyr-Yurt village, unexpected by the civilian population. In the course of the unexpected bombing several individuals were killed or maimed. The rebels present in the village either escaped or were killed in the course of the operation which lasted three days. Indiscriminately lethal weapons were used and the civilian population was neither warned nor provided with a safe exit. Most rebels and their leaders had escaped the bombardment, and hence no tangible military advantage was gained by the state.

Most civilian casualties had occurred in the area and in the period of the most severe fighting between the federal troops and the rebels. Given the context of the conflict in Chechnya at the relevant time, those measures could presumably include the deployment of army units equipped with combat weapons, including military aviation and artillery.

The presence of a very large group of armed fighters in Katyr-Yurt, and their active resistance to the law-enforcement bodies, which are not disputed by the parties, may have justified use of lethal force by the agents of the State, thus bringing the situation within paragraph 2 of Article 2.

The Court required that fair balance must be struck between the above-mentioned legitimate aim and the means employed to achieve it. Although the Court had no information from the Russian government as to the planning and execution of this operation, it held that the arrival of the rebel fighters in Katyr-Yurt could not have been unexpected as far as the military commanders were concerned, and that they had done nothing to warn the population of impending military operation.

This operation was not spontaneous. In addition, the inhabitants were prevented from using their exits since the relevant roadblocks were closed for some days. The Court also adjudicated upon the issue of the use of weapons in the context of Article 2.

The military had not considered the effect of the use of air power on civilians in the area in which both a significantly large population and refugees lived.

relationship between international humanitarian law and human rights

The general who called in the air force did not specify what weapons they should carry, and they carried large bombs by default. The Court evaluated this process in a way that can also be relevant in terms of the assessment of state conduct in terms of international humanitarian law: The massive use of indiscriminate weapons stands in flagrant contrast with this aim and cannot be considered compatible with the standard of care prerequisite to an operation of this kind involving the use of lethal force by State agents.

The case of Issayeva, Yusupova, and Bazayeva dealt with the bombing of a civilian convoy by the air force in October The applicants had expressly referred to Common Article 3 of the Geneva Conventions as prohibiting indiscriminate attacks on civilians.

The government argued that the actions of the air force were necessary for protecting the population from the danger of rebellion, in terms of Article 2 2. The Court was also prepared to accept that if the planes were attacked by illegal armed groups, that could have justified use of lethal force, thus falling within Article 2 2.

It is noteworthy that in this case, in addition to what it said in Isayeva, the Court qualified the legality of the use of air power in cases where planes are attacked by rebels.

Thus the Court seems to suggest that the use of planes against rebels as such does not satisfy the requirements of Article 2. It does not seem that humanitarian law accepts such a qualification, and the Court's reasoning is dubious. What the Court says here is that the military cannot attack the rebels first or, if it can, it cannot use certain weaponry, and leaves open the question of what ought to be done if the context of the relevant military operation necessitates the use of those weapons.

The Military used an extremely powerful weapon for whatever aims it was trying to achieve. This reference to proportionality and the implied reference to the need to take precautions in attack resemble the regulation under Additional Protocol I of Although this instrument did not apply to this internal conflict, the European Court's response comes close to the application of its principles by analogy. In general, the decisions of the European Court of Human Rights on the matter of the right to life in armed conflict demonstrates that even though Article 2 of the Convention, drafted as a general clause, does not elaborate upon the specific conduct that may be expected by the Military in such contingencies, in terms of precaution, proportionality, and necessity, it can nevertheless be applied as having an effect on armed conflict comparable to that which the consistent application of the detailed provisions of the Additional Protocol would have in internal armed conflicts.

The European Court's approach allows it to secure the legal outcome required under both human rights law and humanitarian law, even though it does not directly apply the provisions of the latter body of law, as norms falling outside its competence. The application of Article 2 by reference to the established Convention standards such as legitimacy of aim, necessity, and proportionality is undoubtedly useful, and helps the Court to arrive at sound decisions.

But in broader terms of legal policy, the legitimacy of the Court's findings in the cases involving armed conflicts will always be conditional upon the compliance of these findings with the standards of international humanitarian law — another body of international law that also governs the same subject-matter by reference to humanitarian considerations and necessity.

Therefore, the Court's approach should be based, as it mostly is, on the implicit application of the standards of humanitarian law, albeit cloaked in the Convention-specific categories of legitimacy, necessity, and proportionality. In a number of cases, such as Furundzija, Delalic, and Kunarac, the International Criminal Tribunal for the Former Yugoslavia performed the comparative analysis of the two bodies of law to clarify the content of that part of the standard of prohibition of torture that is applicable as an element of the crimes over which the Tribunal has jurisdiction.

In this field, human rights law effectively serves as the interpretive guide of the relevant aspects of humanitarian law. As the ICTY affirmed repeatedly in both Delalic and Furundzija, the definition of torture under the UN Convention against Torture included those contained in the UN Declaration against Torture or the Inter-American Convention against Torture, and thus it constituted a consensus representative of customary international law.

The Torture Convention did not, unlike other instruments, refer to torture as an aggravated form of ill-treatment. This definition mirrors that included in Article 1 of the Convention. In Kunarac, the Tribunal, having emphasized the different purposes of human rights law and international criminal law, stated that the Torture Convention definition can apply only to international criminal proceedings mutatis mutandis, and affirmed that the Convention definition can provide an interpretational aid to the Tribunal.

In addition, Kunarac elaborates upon the different definition of the elements of torture, excluding the requirement of the involvement of state officials, 64 and for this purpose refers to a general, and broader, customary international law prohibition of torture.

The unclear issue was whether customary law limited the prohibition of torture to the acts committed by state agents, and whether the purposes for which torture must be perpetrated in order to fall within the scope of Article 1 of the Convention were in toto part of customary law. The Tribunal was unable to give an affirmative answer to the first question.