 particular the question of human rights law and what are the challenges, first of all, before we even look at the interplay between the two bodies of law, what are the challenges of human rights law, whether the human rights law substantively has within it the ability to regulate some of the situations that arise in armed conflict and in particular concerns of extraterritorial applicability of human rights law, which does seem to slowly be resolving itself, but there are still questions of how far it expands and different views. So we're highlighting those. We looked at the questions of the legal principles that apply and how one would solve questions and perhaps potentially, and as we said in a minority of situations, contradictions between the two bodies of law and what would be the legal principles used to try and resolve this, and we did try and look to the future here. And then of course we also looked at particular issues in relation to detention and use of force and highlighting the problems that arise specifically in both of these areas using some very concrete examples, but also showing how the two bodies of law can work together in these areas and achieve outcomes that are most probably consistent with the aim of the law in both cases. The first question here is why is there actually a problem with human rights law in the first place? So we're not looking here, I'm not asking you here about how does the interaction work between human rights law and IHL, about legal principles between them, but just think about human rights law for a minute. What's the problem with simply saying, you know what, yeah fine it's an armed conflict, but we can use human rights law to sort out everything that's happening during this conflict. What are the challenges and difficulties to using human rights law, putting IHL aside, open floor, can't be the first time you've thought of this, please. I'm actually one of those scholars who believe that international human rights law should extend, but I think part of the problems is that there are specific protections provided under IHL that may not be provided under international human rights law, and I think that's the problem. So that there are some protections maybe missing that we need IHL. That's correct. The primary purpose of IHL is to try to balance those things between trying to minimize the suffering and the killing that happens more, but at the same time recognizing that war is a reality and therefore permitting under the law to target and to kill and to take life, which is something at its core essence that human rights law does not do. Okay, so there's a question here of substantive compatibility with the needs of the state. What about, and this came up, what about the geographical scope of human rights law? Is there a concern there or not, if we're saying let's use human rights law during armed conflict? Does anyone think that there's a problem with that? Anyone on that specific issue? Sure. Okay, I think the major concern there, especially for extraterritorial application, is practicability. Whether the state would even have the ability to ensure human rights in territories that either they're effectively in control of or where they have some kind of influence, I think that's a primary concern. Anything else on the territorial side of things? Sure. True. If we speak of international armed conflict, how much responsibility or responsibilities would a state carry on on the territory of another state in terms of ensuring human rights? Would it acquire also obligations of the state on whose territory it's carrying on fighting or will it bear on the own responsibilities, which, how big is the scope of correlation of responsibilities of both states, of their international responsibilities? So different agents of states would attribute different amount of rights they can ensure. Thank you. So why don't I come back now to Alex to summarize some of these issues before we move on to additional questions. Sure. Yes, some very salient issues have already been touched upon. I heard the comment saying that IHL provides sometimes four specific protections that would not exist or at least not in this manner under a human rights law. For instance, yes, I take the case out of my own files, particularly who is, for instance, entitled to be specifically protected as medical personnel under IHL. That would be a specific protection that exists under IHL where you would not necessarily find the same sort of functional protection under human rights. The same goes for instance for, take the example of international armed conflicts where there are certain, obviously certain categories of persons, particularly recognized, you know, you have the fundamental distinction between who is a combatant, who is a civilian. So these kinds of questions are definitely on the face of it alien to a human rights framework. In terms of right to life here, I would defer to our subsequent discussion because we are going to really delve into a bit more into the interplay between notably conduct of hostilities versus law enforcement. Indeed, these are on the face of it fundamentally different paradigms, especially when you go into an operation with which mindset you go into that operation. Then finally, the point on extraterritorial applicability has been raised. This of course is an issue that has occupied human rights courts and tribunals over the last couple of years with respect notably to military operations, both non-international armed conflicts but also international armed conflicts. The precise boundaries really of that, the extent of extraterritorial applicability is really still a work in progress. One can say quite bluntly without going too much into details indeed where there is effective control over a certain territory such as in situations of occupation, there will be a recognition usually of human rights being applicable and also as a second sort of limb if you have control over persons such as typically in situations of detention. But sort of the interplay even between those two has been quite controversial and subject to evolving jurisprudence within the context of the European Court of Human Rights and others. There was one point I was particularly missing now in the debate but that is nonetheless vital. What happens, yes, in terms of states, there might be an issue there between IHL and human rights clearly but what about especially in non-international armed conflicts with regard to the other side notably non-state armed groups and the question whether non-state armed groups could have any human rights obligations. This is an issue that is also very controversial. There is a tendency to recognize the factor responsibilities of certain non-state armed groups but those circumstances might be limited. There is a tendency to recognize where they have stable control over territory and also possess some semblance of institutions that would make them the factor resemble a government. This speaks also to the issue of being capable of potentially being able to take on the responsibilities that would arise under human rights which are sometimes elaborate responsibilities. We are not only talking about of course negative obligations of respect but also especially the positive obligations for instance to provide judicial processes etc. That requires a lot of machinery to be able to respond to those demands. That is a specific problem I also wanted to point the attention towards. Before we move to the next question I just want to highlight one of the issues and just to leave you with a bit more food for thought on the extraterritorial applicability side of things in that the challenge of course is how do we even reach the situation where we say human rights applies extraterritorially, are there individuals within the jurisdiction of the state, there are notions of bringing someone within the jurisdiction by the actions that you take and as Alexander pointed out occupying territory seems to be fairly clear because you have responsibility over the whole area and the other sometimes is when we talk about control over persons and often people the example that is used is detention. And again here you have more and more agreements, detention fine we can use human rights law you are running a detention facility outside your territory why shouldn't you have human rights obligations but just to kind of leave you with a thought here the challenge is how far do we stretch this. So the logic easily applies with occupied territory I think the logic for using human rights law in a detention facility again remember that these things can all happen outside of an armed conflict we haven't got to the interplay between human rights and IHL you can have situations where states operate including detaining individuals in another state not in the context of an armed conflict. So we're just talking about the question of human rights applying extraterritorially. Now what if that is not a big huge detention facility but people being held detained in secret there are cases that came before the human rights committee in the context of South America and trade union issues right someone abducted and held in a secret apartment and this is all done extraterritorially. So here shouldn't we also be saying if you've got someone you've detained them should the human rights law apply and why shouldn't it just because you're doing it across across the border so you accept that then what if it's not a holding someone for a long time in a detention facility but state agents are holding someone for for one hour but state agents have crossed the border into somewhere else and they're holding on to someone physically and the person's in their power should human rights law not apply what's the difference in the earlier example now they're not holding the person for an hour but they just grab the person for one second but they put a bullet through that person's head okay did the right to life not apply you know they had they had that person they put a bullet through their head and then and then let's say oh now they fired the bullet but they fired the bullet from five meters away should it make a difference that they fired that they that they held the person and put the bullet to their head or the it is and it's still not a case of right to life and then you snipe a rifle 500 meters away and then drone strike from on top so you see you see where I'm going with this so this is the challenge with extraterritorial applicability I think logic would dictate going all the way because I don't see where you would stop but this is this is this is where the debate occurs that some people think oh you you you end up going too far and and this is where we have this debate so that's just just a little extra point down extraterritorial applicability in most cases humanitarian law and human rights lead exactly to the same result when it comes to torture when it comes to rape when it comes to deliberate killing of people in the power of the enemy absolutely no difference and simply one or the other branch provides more details on substance or provides additional implementation mechanisms now comes the question what is the contradiction and personally I think that's an important issue is it only is there only a contradiction if IHL prescribes something and human rights prohibits it that was the approach in the aljada case where they said there is no contradiction because IHL allows internment and human rights prohibits in turn in this context if this was true I know only one single contradiction between IHL and human rights law but perhaps you have some other ideas there's only one example the law of occupation prescribes military courts in occupied territories and human rights law at least are interpreted in Europe and the Americas the Americas is only south of the Rio Grande because Canada and the US are not a party to the American convention it is prohibited to bring civilians before a military court but that's the only example I know but if we are realistic we have to admit that even if IHL permits something and I human rights law prohibits this there is a contradiction I mean under IHL it is lawful to kill enemy combatants under human rights law you would have to try first to arrest them and there I think we have to solve the tension all this is also related to an important issue where the IHL authorizes at all anything and this is the Lotus debate we are between international lawyers so I don't give more details which in my view remains a very theoretical debate until we have human rights law because human rights law requires a legal basis for detaining people for killing people and here a lot of people and states try to argue that my legal basis for killing this person or for detaining this person is IHL and then there can be a contradiction leg specialist well the problem is I think the term sorry is because he doesn't like and I like it but for the rest we mostly agree so it's a pure terminological thing and why doesn't he like it because it's often abused off and misunderstood and I say self-defense is also abused off and a lot of rules of international law are abused off but it's not the reason to abandon them and so some people say leg specialist means only IHL applies in armed conflict and this is wrong I think it's also wrong to say whenever IHL has a rule it's the rule of IHL which applies and therefore I understand those who don't like leg specialist because it looks as if human rights don't apply wherever there is a problem covered by both because I mean freedom of press is not covered by IHL and therefore most people would agree that it nevertheless applies even in armed conflict I think the issue is not either which is the more protective rule this is the rule in human rights law if you have two rules you choose the more protective one but between IHL and human rights law it would be meaningless because in 98% it's the human rights I hope in the ICC will not fall down when I say human rights law is more protective than human it and law but human it and law is more realistic in armed conflict than human rights law so it is indeed I according to me the more detailed rule as you say the rule which provides in respect of certain facts because I would say it's not even a relation between two rules it's a relation between two rules in respect of two facts one or the other has a greater common that's one of my students who created this term a greater common surface contact surface area between the facts and the rule and therefore and there most people disagree with me in my view sometimes it's IHL which is the leg specialist and sometimes it's human rights law the leg specialist but there is again it's mainly a terminological issue because those people would simply call it the legs generalis which prevails sometimes I would say the two can't constitute in a certain situation the leg specialist the alternative and you mentioned the Vienna Convention and at least one of my students as a total fan of that and the solution is the Vienna Convention which by the way doesn't mean doesn't mention leg specialist so the idea of systemic integration to interpret one taking the other into account often leads in my view to the same results it also raises the question what is interpretation and here we will discuss about the case where the European Gordon human rights simply changes changes a rule of human rights law in saying I interpret this rule in light of IHL and I think this is slightly abusive another question is leg specialist is a relationship between two treaty rules while often especially in non-international armed conflict we have custom law and at least under traditional custom law you don't determine leg specialist between two customary rules you just try to determine which is the customary rule applicable to my problem out of state practice and opinion use applicable to that problem and then comes leg specialist by analogy because you know most of the problems are non-international armed conflict and we don't have rules on many issues in the treaties on non-international armed conflict but states try to apply by analogy the rules of international armed conflict and this goes for me a little too far to claim the leg specialist is something against hard human rights law which we draw by analogy from another situation which is international armed conflict but this is very controversial and finally just two points leg specialist through jurisprudence because often we say human rights law is much more detailed on many issues but it's not true if you look at the treaties it is only because there is much more jurisprudence of human rights bodies but this does mean that the leg specialist shifts and in my view this is not possible all the time between every time a human rights court takes a decision the leg specialist moves and then comes the international criminal tribunal for the former Yugoslavia which gives a more detailed interpretation of a rule of IHL and then the leg specialist moves again I'm skeptical about that and some of you mentioned it I think it's also a question of the enforcement mechanism perhaps it also depends very much which mechanisms uses it but obviously if I'm a state even the human rights court theoretically I don't favor that they could simply apply human rights and say we don't care about IHL but if I'm a state I'm bound by both so I have somehow to integrate the two the suggestion that use Korgan's erga omnis and so on is helpful is certainly with other rules of international law but you know in human rights and human Italian law where it comes hard to heart probably both would claim their erga omnis and to use Korgan's and therefore it's not very useful and on the derogation issue the problem is simply practical in my view in the ICC I can say that in the human rights body I would be expelled states should more often derogate but the problem is most of the time they don't derogate and this creates the problem because if they derogate it's exactly what you explained but most of the time most of the states concerned by armed conflicts do not derogate and therefore we cannot say now with derogations have to take into account the other international obligations because they didn't derogate and the European Court on Human Rights in the Sun case found a very strange I am dangerous idea to say subsequent practice shows that you don't have to derogate but I must say this is very dangerous because subsequent practice shows a lot of things which could be a violation of the European Convention. Thank you. Thanks Marco. I feel compelled though quickly to say something about lexpecialism. Yes. And here is simply my problem is this. First of all this issue of it meaning all things to all people. I recall sitting at an expert meeting maybe seven years ago or something and we were discussing this precise issue and there were 20 people around the table and the question was asked you know what's the solution to the interplay and you go around the table and everyone said lexpecialist lexpecialist and then someone wanted to move on you know that that's fine we're okay and then I said hold on and I just asked just the random few people what do you mean lexpecialist lexpecialist and every single one of the people that said lexpecialist meant something completely different but completely different you know one was going to completely displace human rights law the other meant that lexpecialist is human rights law and you know and on and on and on and to me when something means all things to all people it's not a helpful concept and yes there are lots of areas where and principles where we have debate but I think it's served to obfuscate the debate here that's you know we it's too easily it's the abracadabra you know we say to it say it's Latin it sounds smart and then we think we've got the answer and we don't try and deal with it and so my concern is that the other concern is is that and actually I think I think many ways we agree on this and some of the comments that were made is that it gives us the impression that the answer is a top-down principle that you have one sort of legal theory answer to all of the the problems that can arise between human rights and IHL and you just you know you apply this principle from the from the top and that's that's fine and I think the answer is is is bottom up it's it's case by case and context by context and the interplay between human rights and IHL will operate differently in in every different scenario and for that I would just say watch this space because within the year we're going to be publishing a project that I'm involved in in Chatham House in England we're putting together a human rights manual for the military now it's main main it's meant mainly for the UK military in context of VCHR but it obviously it'll be wider than that and it's and and and it goes chapter by chapter it says in detention this is how human rights and IHL operate together when you're manning a checkpoint this is how human rights and IHL operate together in use of force this is how and and I think that's the only way we're ever going to be able to solve this is if we stop trying to think that there are legal legal answers but we just say in this context that's what you do in this context that's what you do and we just come up with with that but but again I don't think we're actually that far from each other in terms of how we solve it for you regarding the issue of the competence of the military court what what might what might be your answer and I agree this this this is probably and I agree with Marco I've said this as well this this is the one where we have a clear contradiction I think some of that will end up being solved possibly it were in two ways either state practice over time will coalesce around one of these rules and it may well be human rights law with time will prevail we'll just see that more and more states are accepting that you don't bring civilians before military courts even if the fourth Geneva Convention allows it and that might simply be described yeah and that might simply be that we just we just see practice changing and that becomes the and I think that's probably the likely way out of this but I would disagree because the problem is the system the overall systemic purposes of international law have to be taken into account and an occupying power may only have a military presence and may not constitute civilian courts otherwise it would be an extension and therefore I think here the IHL rule prevails because it represents an overall purpose while an occupying power brings the people from the occupied territory before its civilian courts would either deport them which is prohibited or annex the occupied territory so as long as soon as occupation no longer exists I agree with you but as long as this old-fashioned phenomenon exists we have to deal with this specific well the other the remainder of what I was gonna say was that I think they may then we may also see within practice very limited exceptions being formulated in practice exceptions to human rights law and that human rights bodies may accept that there will be very limited situations in which you do and then the focus will be on the independence and are these courts within a certain chain of command and and so on so I think it'll be solved through state practice which will I think generally fall towards human rights law with very limited exceptions in very specific context but but but we don't know yeah we can wait and see it's not all we're doing here is we're guessing how it is going to be solved in the future so I mean I'm not I'm not right Marcus not right you're not right nobody's right because we're predicting the future to kick off this particular issue in a in a practical manner and to set you in a scenario unfortunately it should have we there would have been on this slide a little case study but some some technical things went wrong so I'm just gonna gonna give you a set of facts and and just before I do that a bit of background the ICRC has actually led an expert process on is the interplay with regards to the use of force against persons as regards the paradigms of conduct of hostilities may govern by IHL and law enforcement so mainly deriving from human rights and because we realized especially in situations of non-international armed conflicts you might face certain situations where it is not so easy really to decide which of these paradigms should apply to a a set of facts and this can be because this said that there are mixed situations and that's one example and and one case I'm a short case I wanted to give you is imagine you're in the context of a non international armed conflict and you have a demonstration that occurs against the government say repression of the insurgency and in the course of that demonstration hundreds of people gather in in the main street of the capital where also governmental armed forces are engaged and are engaged also generally in hostilities against fighters and in the course of you know trying to manage this demonstration the demonstration turns violent so the demonstrators start throwing rocks but there are fighters actually that take advantage of the situation and mix in between the violent demonstrators so my question to you is in this kind of set of facts what paradigm under the use of force would you apply would it be conduct of hostilities would it be law enforcement would it be both the IHL one because the there are combatants and they're using force if we reach a certain threshold let's say and IHL rules would allow to distinguish between the demonstrators who are civilians or non combatants and then the combatants that would give us what we need for proportionality and assessment of the action and their legality although remember from the previous session the then then we're talking about IHL proportionality where we're only concerned with collateral damage and some collateral damage and it means that some harm to civilians who are not involved is legitimate yes as opposed to human rights proportionality which would take into account even the effect on the fighter so we need to remember when we're saying if you're saying the IHL one then we're using IHL proportionality which would clearly allows for collateral damage amongst the uninvolved and it would still absolutely yeah but less absolutely and it would still not make the civilians legitimate target in any way perhaps using human rights law there instead of IHL because you said under these limited facts that you've given us that we're trying to make recommendations on ROE most typical ROE we require before taking force against the combatant to positively identify them as a combatant in the facts that you've described it's a commingled crowd and therefore the presumption must be that they are all civilians unless you can do the positive identification to use military force so I would begin with the assessment these are all civilians that may require a later status determination to apply different rules but as far as the initial use of force in a commingled crowd under the circumstances described I think I would be recommending human rights the way I understood there was Nayak I would agree and maybe build upon at the end that it's law enforcement paradigm for me but at the same time we're talking about continuous combat function is the question how you're going to approach from the state perspective if you are suggesting to the state officials how they have to behave I would agree human rights law because continued combat function will be very dangerous in that context but then there is another question which comes to what you have mentioned now in that context they armed forces will be allowed to use for example the weapons which under IHL is prohibited and the state will think wait a minute then I'm gonna have a problem from the IHL but in overall if I was arguing and suggesting for the state how to behave in in the demonstration I would say law enforcement paradigm because of proportionality criteria in IHL with the civilians present on the ground that's a really interesting point I'm assuming Alexander will pick up on the weapons because it may be that's law enforcement actually allows better weapons than the IHL in this so Alex you want to know very very interesting well I could see that a majority of the room were leaning towards applying a law enforcement model so of course then that the first question that has to be asked yes but there are obviously fighters within the crowd does the law enforcement model really allow us to respond effectively even to the fighters within the crowd and the answer would be yes so if they of course represent an immediate threat to life yes the use of force can be directed against them just to also pick up on perhaps so taking it backwards from that last point because it was a particularly interesting point in terms of the weapons and here you see an example actually where IHL is even more protective in that sense than human rights law because obviously if you apply a law enforcement model to the entire situation you would allow though if it's armed forces that actually conduct the operation you would allow them to use riot control agents or also you know hollow bullets for example and things that would be prohibited under IHL so use of riot control agents under IHL as a method of warfare as you know is what at least what we what is quite consensually regarded as prohibited because it would lead of course that the potential of an escalation in response with even more powerful chemical weapons so for that reason there is this specific prohibition so in terms of the applying the conduct of hostilities model here of course yes the fighters are lawful targets but then you might face an issue here especially if the crowd is numerous around them in terms of proportionality and precautions so effectively if you don't have very precise sniper capabilities the upshot would be that actually you'd have to refrain even from targeting the fighters in that situation and there was another very interesting point made in terms of leaning towards the human rights paradigm because most rules of engagement would already require to positively identify if someone is a lawful target or not in fact one interesting result of this expert process was to recognize that in these difficult situations especially under the IHL precautionary even under the IHL precautionary obligation to positively verify that you know the person in front of you is a lawful target that this would imply a kind of escalation of force procedure that would be very common in under human rights law and just also a remark on the rules of engagement no matter what for legal reasons what kind of minds that you would go into the operations rule of rules of engagement are usually not only informed by law but also for policy reasons and in many respects these would be quite stringent so in essence then even if legally you would adhere to a more permissible standard for for policy reasons you might resort even to stricter standards as as laid down in in the rules of engagement what surprised me though was that no one actually suggested to apply those two in parallel meaning against the fighters conduct of hostilities versus against the demonstrators the rest of the crowd human rights in fact this was the result of the debates in this context because it was simply said that it legally of course it is the solution that would make most sense to recognize that there are actually two different situations although these two different situations happen to be very close to each other however still of course as a practical matter very difficult to implement that's why you know in at least in the ICSC conclusions you might have a fundamental difficulty of course if you go for IHL against the fighters precisely to distinguish who is who is it a fight having a continuous combat function is a civilian directly participating in hostilities is it merely a civilian throw in the rocks participating in a demonstration but that otherwise but for that spontaneous manifestation of their anger does nothing have nothing to do with the collective resort to hostilities that would give you the kind of belligerent nexus to regard that person as directly participating in hostilities so that's very difficult and in cases where it is difficult there is the possibility to effectively to fall back on the law enforcement paradigm so I think I'll stop it I just want to clarify quickly something on proportionality that was said just so don't leave you with with the misconception and then I'll turn to Marco the proportionality and I was saying earlier that proportionality is is different between the two under human rights law as well proportionality you could still end up with with harm to others and still say that it's proportionate but the reason that the human rights law proportionality test is more stringent is because it requires you to take into account the harm to the person that you're targeting whereas the IHL proportionality as we said earlier the person that you're targeting if they if they don't have civilian protection you don't even need to count them in the proportionality you only need to count the harm to the others and in human rights law you need to count the harm to the person you're targeting and the harm to the others and then still depending you know you could reach all sorts of solutions but that's also linked to the question of weapons and I think it's interesting whether indeed to say that certain weapons are banned is more protective is that necessarily the case because for example looking specifically at this issue of proportionality if under IHL you're not allowed to use hollow point bullets dumb dumb bullets right and and and the only weapons that you have are regular bullets then you will more likely be harming not just the person you're targeting but the bullet will go through them and and and possibly kill or injure another three four people if you're using dumb dumb bullets you can target the one person it hits them and that's what dumb dumb bullets hollow point bullets do they go in and and and they don't come out the other side it causes horrible damage in inside but it's safer for the other people around so in theory you could argue that that allowing certain weapons is more protective and it's interesting because you have this in human rights on there have been some cases such as the Gulich case in the European Court of Human Rights where one of the things they're saying to the state you go out to deal with demonstrations like this you need to have the right kind of equipment the right kind of right control to minimize to minimize harm and if you go out without it then then you're violating human rights so you could even argue under human rights law you're required to use certain certain methods that you might not want to be using under under IHL which is complicated I'll turn over to Mark if you want to comment on this and then straight away move into detention just one sentence when I am asked what is the greatest difference between human rights law and IHL it's the distinction between civilians and combatants doesn't exist in human rights law and that's in my view for the use of force the big issue that everyone is simply a human being and therefore you have to individualize the use of force while in IHL according to its letter in international armed conflict and now increasingly for all kind of constructions in non- international armed conflict you create categories of people which in the reality of fighting in a battle is probably inevitable because you cannot individualize as much as the police can in a law enforcement situation I come now to deprivation of liberty and there I would also try to give you just two scenarios which come from two cases both on the European Convention but do not happen in Europe that's an interesting thing and first in an international armed conflict and I think it's important in which situations this happens in international armed conflict in occupation of Iraq the United Kingdom arrested Mr. Hassan for 10 days he was not brought before a judge and he was believed to be an insurgent but finally after 10 days he was released and the European Court on Human Rights under its normal practice 10 days you cannot detain someone 10 days without a legal basis and judicial procedure even if it is for imperative impurity reasons and so on but the court said we have to accommodate this is what the systemic integration interpretation people like and we have to accommodate as far as possible the interpretation of human rights law to the applicable humanitarian law and us under humanitarian law internment for imperative security reasons is admissible and ask the administrative checking of the legality of the detention was given the court considered that it was lawful I think the result is correct but to claim that this is an interpretation would be totally correct under the UN Covenant and under the Inter-American Convention under the European Convention it's not possible because there is a closed list of admissible reasons of detention and you cannot say I interpret this article by putting a new reason in and therefore this is why sorry I think we have to work with the legality thing you cannot simply say it's interpreting the European Convention because interpret is not adding something which is not in the text but using the text but for the UN Covenant and for the Inter-American Convention this could certainly work so the court said this is lawful and humanitarian law provides the legal basis which is necessary under human rights law the second case is the Serda Mohammed case which happened in a non-international armed conflict in Afghanistan and Serda Mohammed was also seen as an insurgent and detained by the British with all kind of checks but no judicial control and the United Kingdom had no legal basis in UK law or in Afghan law because under Afghan law United Kingdom cannot detain people in Afghanistan and two instances of UK courts now it has been decided by the appeal court it will come before the Supreme Court decided that this is a violation of the European Convention because the the law of non-international armed conflict doesn't give a legal basis and Habib's Corpus prevails because there is no procedure under the law of non-international armed conflict so the questions is are now on deprivation of liberty detention what are the differences in which situations concerning legal basis admissible reasons necessary procedures to check legality of what kind of persons in international armed conflict and non-international armed conflict and how to reconcile these two on the Mohammed case my understanding of the Mohammed case was that the court found that there was no legal basis because there wasn't a specific authorization to detain in the in common article three or the additional protocol which I found problematic just because I mean certainly there's state practice you know I mean the reason why it refers to detention procedures and and you know other incidents of detention in the additional protocols because I think it assumes that that states will detain and the alternative seems far scarier if you if detention is not a possibility you know it begs the question of what then what is what is possible is it is it only lethal action or does it assume that only law enforcement action would be possible when you capture someone rather than rather than kill and I ask why you say it's not a possibility if I mean if the court was saying it is a possibility you you you just need to legislate for it right but but I think that that probably the state I think the state took the position that well by acceding to this treaty we you know the assumption behind the treaty was that detention was authorized because states had been doing it state it provided for detention procedures so states were authorized to do it without a specific positive you know positive provision for it I'm sure Mark will have a lot to say about that in a couple of minutes can I can I ask you when you're thinking about all of these issues to consider also armed groups particularly if we're talking about non-international armed conflict and these questions and what are the implications of what you're saying for non-international armed conflicts in that context any more comments on the legal basis or the reasons for detention and a limit I guess to the CHR because these two logically Mohammed will end up in a CHR and I think from the procedural perspective how the court will look and interpreting under Article 5 and I think it will have a different conclusion than Hassan case because basically we are using Habeh's corpus as a human rights procedure to actually interpret IHL it's fascinating as professor Sassori would like to say but at the end of the day I think do very specifically that the legal basis is not present in IAC in Common Article 3 and additional Article 2 we will find hypothetically I think the court will find a violation and that's very interesting from the perspective that this will be a judgment from a court looking at detention and legal basis in IAC and IAC and we will have two cases but I think what's also to to pick in mind is that we are using actually the human rights procedure to look at it and it's worth pointing out that in the Hassan case they kind of signaled already that this is what's going to happen when they made the comment about derogation and said in an international armed conflict and so they seem to be saying that they would do something different in a non-international armed conflict I mean we'll wait and see but it looks like they are point they left it open to reach as you say a potentially a different decision a different approach in IAC Gus you yeah I mean I just want to sort of cover ground that you've actually mentioned already to this point but the issue at the end of the day really is not because I think some people read into it that it that it must there must be an authorization but if it doesn't regulate or provide for authorization for detention during IAC the fact remains that that authorization comes from else can come from elsewhere and that's the factual question so if there is municipal legislation for example that provides for that detention then there is a legal basis for detention but the point is that IHL in itself certainly from an IAC perspective does not provide that legal authorization and I think it's a very subtle thing but people miss it I think in the debate and I do think in a son I mean the language that the court employed was very problematic in in that dynamic between IHL and IHRL in that context. Thanks Marco. Just on the customy law argument it would be a good argument on probably the European Gordon human rights would have accept customy law as a basis but there is not sufficient practice on the opinion your your is most states confronted to non international armed conflict have domestic legislation Sri Lanka Pakistan and so on they have domestic legislation allowing detention and second you could say yes but in extraterritorial non international armed conflict there is state practice most states in Afghanistan did not detain more than 96 hours and therefore most states apparently thought that us they don't have a legal basis they cannot detain people and those who detained again I fully agree they could create a legal basis either through domestic law or international or they could have a treaty with Afghanistan which allows them to detain no problem I think that in international armed conflict for prisoners of war all the three points are clear in IHL and therefore satisfied the human rights requirements for civilians who are prosecuted anyway the rules on IHL and humanitarian law are the same for internment you kind of have a doubt whether article 78 of convention number four is actually a legal basis to intern or whether you have an occupying power has in addition to legislate and imperative security reasons are the admissible reasons and there must be an administrative procedure and an administrative appeal which doesn't satisfy the law human rights law but to the Inter-American Commission in the court case has accepted this I think the real test is in non-international armed conflict one there the simple fact that internment wounding destruction of nature is mentioned in a treaty does not authorize to do these sorry I don't understand this argument to say it may interment is mentioned and therefore it's authorized because you need an authorization it simply regulated which doesn't mean authorized and simply I don't think a human rights body will ever accept that a hard law rule of human rights like habeas corpus will be derogated from or accommodated to or be displaced by a leg specialist which is not hard law but which is either drawn by analogy and sorry I mean imagine a Geneva policeman arrests you and you ask what is your basis and he says you know I arrest you by analogy with another legislation I don't think you accept that and I don't think any human rights judge will accept it while it would be good if we had specific rules on that but states don't want them because the ICSE suggests rules on detention and the ICSE suggested to have a treaty on this if I understand correctly and states absolutely don't want it okay if you don't want it what you get is human rights law sorry for that you could have it because that would be accepted if there was a specific treaty which was giving these guarantees just perhaps one two sentences on on on ICSE since that has been touched upon effectively we are among those that I'm actually consider especially in a non-international conflict that indeed there is an implied power to conduct internment but in essence we also say and this is very important to package always that IHL as it stands it does not steer you does not stop theirs so you need then to have grounds and procedures and precisely that is lacking I think no nobody doubts that so in essence this is the reason why we are currently leading a process on strengthening legal protection for persons deprived before for victims of armed conflicts and one of the components of this process is especially on detention in non-international armed conflicts and this is one of the areas that is being addressed indeed we would have considered it desirable if there had been an appetite at this stage for a new treaty politically that does not seem to be the case so what we are proposing and and this is the next international conference of the Rec Cross and Rec Crescent next December will be a decisive stepping stone in this regard whether the ICSE will be given a mandate to lead a further process that will eventually might lead to an outcome document or documents of a non legally binding nature but nonetheless offer of a normative character so I just wanted to flag that and with in relation to international armed conflicts here we are we are of the view that there is no need for for further domestic legislation so IHL on international armed conflicts is already sufficiently precise in terms of grounds and procedures for POWs and civilian attorneys so I just wanted to to compliment also article 78 explicitly said that the occupying power must legislate for the procedures but okay and of course what we didn't touch was was armed groups and you can take that away with you to think about in terms of how would this solve the issue with regard to the grounds for detention and base for detention by armed group the International Court of Justice dealt with extra territorial accept extra territorial application of human rights law in the wall case Uganda case it speaks about leg specialist in the nuclear weapons and the wall case but it does not really apply leg specialist it has a cumulative approach it cumulates the two but it has not yet led to absurd results the European Court of Human Rights has had a lot of problems with the extra territorial application it moved from bank bank of it no extra territorial application to today territorial control and personal control as for IHL traditionally in the cases concerning Turkey and Chechnya it simply ignored IHL but used at least in English not in French they didn't understand the translator they copy pasted wording from protocol additional one on precautionary measures and but now with Hassan I think we have a tendency where they actually take into account and accommodate now we have future cases Georgia versus Russia Ukraine versus Russia where the European Court will have to deal a lot with IHL I think the toughest point on the right to life remains the absolute obligation of inquiry they see which does not exist in IHL and is very difficult in hostilities to imagine the inter-american system is very open extra territorial much larger it applies human rights in non-international armed conflict the Commission was going further the court was slowing down in the Las Palmeras-Barmaca Velazquez case it uses the term lexpecialis it uses IHL to interpret and reinforce human rights law in particular on disappearances on destructions on pillage on women rights of women and children a very interesting thing is now on reparation and a lot of people don't know that that the inter-american court has decided following some massacres that states have to make dissemination of humanitarian law and of human rights law and they have to adopt national legislation of implementation of both humanitarian law and human rights law as a reparation and all public officials must know the inter-american convention as interpreted by the court and the court introduces humanitarian law this is an interesting aspect of prevention and finally the African Commission and court the convention applies the inter the African convention on human and people's rights applies in non-international armed conflicts the only case where it dealt really with IHL was in Democratic Republic of Congo versus Burundi Rwanda and Uganda there it said that the commission is entitled to take IHL into account that the Geneva convention's additional protocols are general principles of law recognized by African states it referred very liberally and not always totally accurately in my view but to IHL but only always in link with a provision of the African Charter and in its reports and examining reports it does interestingly not mention even where is an armed conflict international humanitarian law please with that very quickly on UN Human Rights Committee working group on arbitrary detention that recently published documents that are relevant to these issues with that we are discussing UN Human Rights Committee general comment number 35 on article 9 of the the ICPR liberty and security of the person and there it's interesting to note that it recognized that security detention namely internment that is authorized and regulated by and complying with IHL in principle is not arbitrary so in essence this goes for IHL internment provisions in international conflict because only there you have both authorization regulation etc so in essence it leaves out non- international conflicts and then it also deals with the issues of limits of derogation here again in terms of international armed conflict it says that the substantive and procedural rules of IHL remain applicable and limit the ability to derogate so such that this is sort of the minimum kind of standard that you would still have to comply even when I'm derogating here again a distinction to non-international armed conflicts with regard to the working group on arbitrary detention here there are certain principles that are specified even in for international armed conflicts such as you know appeal or periodic review of distinguished decisions to intern applying in an IAC that these must comply with principles including habeas corpus so it is not entirely clear if they had in mind really to draft you know additional recommendations because on the face of it of course there is a challenge already with some of the rules that are contained in the third and the fourth Geneva conventions in non-international armed conflict so in essence administrative detention or internment only possible if there is a public emergency and the extent and complying with the requirements in terms of derogation so there is a need to derogate if for in non-international armed conflicts if you want to resort to this possibility I just quickly wanted to also say a few words on two special rapporteurs that recently have conducted some work interesting for some of the issues namely the special rapporteur on the right to life so summary and arbitrary executions Chris Haines who took a specific interest both on the use of force in general obviously including for law enforcement but also in the context of lethal autonomous weapons and and armed drones in this context I mean there was a quite a realistic recognition by by Haines that although human rights continues to apply he recognized that conditions under human rights might be relaxed in the light of high cell also applying so that was quite interesting to note and also with regard because it has been touched upon issues in relation to investigations after the fact this is one point I forgot perhaps to mention that this is still an issue where it really matters if you have a for instance a law enforcement operation or a operation under the paradigm of conduct of hostilities because simply the thresholds and especially when an obligation to investigate is triggered as well as in which circumstances are simply different under human rights and an IHL so human rights much more stringent of course and here he also recognized that in on conflict situations the stringent requirements under human rights might be considered to be attenuated that in distinction to the special rapporteur and counter terrorism where the special rapporteur in terms of investigations applied quite a strict standard that there is an obligation to investigate under both bodies of law every time there are unintended or unanticipated civilian casualties so that would then trigger an obligation obligations to investigate and of two components of first conduct fact-finding and then if there is a reasonable suspicion of violations then criminal investigations so a lot of these challenges are being played out right now in in cases before international bodies and they relate also to particular issues within human rights or itself such as extraterritorial applicability that we I think are moving slowly towards some some kind of common understanding that not everyone would necessarily agree with but but I think a more comprehensive understanding of how and when human rights applies extra-territorially and that is going to help us very much in in the future but also with regard to the interplay between the two of them we're seeing cases come up now for example in the European Court of Human Rights recently the Hassan case and soon the Russia Georgia case which again might start pointing in certain directions of the of the interplay between the two and how international bodies are going to do this my my guess but my guess perhaps is informed or perhaps in certain ways this is this is my hope rather than my guess but let's let's assume that they're the same is that we are starting to I hope move away from assuming that we have clear legal principles that can be applied top down and that there's sort of some magical should solution to the interplay between human rights match up and with more and more cases and more practice we're going to see how we we try and solve this by looking in particular situations particular context so that's the solution isn't one one solution for all situations but rather the interplay between human rights and I chill will work in a certain way in detention it'll work in another way in occupation and it'll work in another way with regards to use of force in a demonstration and so on so we're going to have to solve this in a case-by-case scenario but we're working towards that and I think once we have that and we have more established practice hopefully this this question will become less of a troubling one in the future where we're really there is also and will remain a key difference even if and and here I'm a bit paraphrasing from other scenarios that have been examined over this expert process even if during an operation through interpretation and others that the two paradigms might come to similar results where there is still a fundamental difference is already in terms of planning in terms of the kind of equipment and training those conducting each type of operations would have and therefore it will be it become more and more important that armed forces for instance are trained also in law enforcement ways of dealing with a situation and also police forces might be confronted with situations that might fall under the conduct of hostilities paradigm so in essence you know on an international level international or does not take a position who should conduct which operations and in the reality of today's situation and this issue becomes ever more important to be able to switch between different paradigms which is not always easy in the heat of the moment another fundamental difference is and this was also addressed today is is after the fact in terms of obligations and to investigate deaths that might occur as a result of such operations so here human rights and and and IHL still seem to be different and with regard to human rights for instance it is common that the standards are much more stringent than under human rights but this question of investigating cases of suspicious death or as a result of operations this is something that where they would need you know even more more examination in terms of the interplay between between those two regimes and how they might they might converge or how in armed conflict situations if one would apply for instance a human rights law and how that would deal with some of the practicalities and the realities under arising from armed conflict situations