One of the most controversial and politically charged issues in current human rights discourse is whether and to what extent states are bound by human rights obligations with respect to the conduct of their armed forces abroad in armed conflict, occupation, and peace operations. Underlying the controversy are a number of complex legal questions, several of which have eluded definitive resolution. Chief among these questions is whether individuals affected by the conflict are among those whose rights states are obliged to secure. Answering these questions is further complicated in situations of collective action, giving rise to such questions as whether national contingents of multilateral operations retain their status as organs of their respective sending states. The purpose of this Article is to outline the issues underlying these questions and to provide a framework for answering them.
Despite continuing objections on the part of a handful of states, a consensus is evolving in favor of the view that human rights law applies in full alongside humanitarian law during times of armed conflict and occupation. While it is easy to see how human rights law would apply to a state’s regular forces in a situation of internal armed conflict, the situation becomes more complex when states operate abroad, especially when acting through the context of collective action or with the assistance of private actors.
Human rights law, embedded in the inter-state structure of the international legal system, generally binds states and states alone. At the same time, states are abstract entities, incapable of acting as such. The conduct of states is the conduct of individuals whose acts or omissions are attributable to the state. Thus, the question of attribution not infrequently arises in disputes before human rights bodies.
The legal standards for attribution of the conduct of non-state actors to the state require a fairly high level of state involvement or, alternatively, de facto state action by non-state actors accompanied by state authorization or disengagement. However, special rules may be evolving through the practice of universal and regional human rights mechanisms. These institutions have increasingly found degrees of state involvement not rising to the level established for attribution under the Articles on State Responsibility to be sufficient to render the state responsible for the acts of non-state actors.
The question of attribution is separate in principle from the content of international obligations. However, this distinction may become difficult to discern in the context of a failure of a state to fulfill positive obligations in relation to the acts of non-state actors. The state is essentially in a constant state of omission. However, in order for an omission to constitute a basis of responsibility, there must be a duty to act. The question of establishing a duty to act will turn on the content of the relevant primary rule. Thus, in these circumstances, the issue of attribution collapses into the content of the primary rule.
The distinction between attribution of the conduct of non-state actors and a state’s responsibility for its omissions in relation to the conduct of non-state actors has special significance in the context of human rights law. Where human rights violative conduct is attributable to a state, the state will have breached an obligation, and responsibility will arise immediately. Where such conduct is not attributable to a state, the question of whether human rights law has been violated will be determined by the quality of the state’s response to this conduct, generally governed by a “best efforts” standard.
Most of the jurisprudence of human rights bodies, which have greatly elaborated on the content of states’ obligations under the various human rights treaties, has been developed in the context of alleged violations committed on the territory of the respective state party. Can these same standards be transposed onto the state’s conduct abroad? In an effort to bring order to an otherwise chaotic array of judicial (and quasi-judicial) decisions, the Article provides a framework for delineating the scope of human rights obligations by examining three different parameters: the scope of beneficiaries, the range of rights applicable, and the level of obligation. Structuring an analysis of current jurisprudence around these three parameters reveals a trend toward recognizing varying levels of obligation. In particular, it may be that negative obligations apply whenever a state acts extraterritorially (at least with respect to intentional human rights violations, as opposed to indirect consequences), but that the degree of positive obligations will be dependent upon the type and degree of control (or power or authority) exercised by the state. This approach would preserve the integrity of the respective treaties and would vindicate the universal nature of human rights, which is proclaimed in the preambles of all of the human rights treaties considered in this analysis.
International judicial and quasi-judicial bodies have provided answers to many of the important legal questions described in the Introduction. Nonetheless, there remain significant gaps that provide ample opportunity for these institutions to further elaborate on what is required of states in situations of armed conflict and occupation.