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33 An article and a protocol to the Convention on the Rights of the Child expressly address an issue which arises in situations of conflict – the conscription or recruitment of child soldiers and their participation in conflict; Convention on the Rights of the Child, Article 38 and second optional protocol. The Convention against Torture addresses a phenomenon that is prohibited in all circumstances. LOAC/IHL prohibits the infliction of torture or cruel or inhuman or degrading treatment or punishment in both international and non-international conflicts. In the case of CEDAW, CERD and the Convention on Migrant Workers, the treaty bodies may have to address the issue indirectly.
34 CCPR/C/21/Rev.1/Add.11. To the best of the author’s knowledge, no State has commented on the General Comment. This is in contrast to the situation after the HRC adopted General Comment 24 on reservations to human rights treaties. Three States, France, the UK and the USA, criticised certain paragraphs in that General Comment. Where a State does not object to a General Comment, especially where that particular State has in the past criticised a General Comment, that may be thought to imply, if not approval, at least non-objection. This is particularly important in the case of General Comments 29 and 31; see further below.
35 “The Covenant requires that even during an armed conflict measures derogating from the Covenant are allowed only if and to the extent that the situation constitutes a threat to the life of the nation.”; ibid, para.3, emphasis added. The immediately preceding sentence makes it clear that “armed conflict” is being used to describe a situation in which LOAC is applicable; “During armed conflict, whether international or non-international, rules of international humanitarian law become applicable and help, in addition to the provisions in article 4 and article 5, paragraph 1, of the Covenant, to prevent the abuse of a State’s emergency powers.” Dennis, in the context of an article disputing the extra-territorial applicability of HRsL, cites evidence from the negotiating record with regard to ICCPR Article 4 which in fact supports the continued applicability of non-derogable HRsL in time of war. States were expressly trying to ensure that the article was consistent with the general international rules regarding the non-applicability of legal obligations in time of war, unless the obligation provided for continued applicability. The UK legal adviser suggested that the purpose of Article 4 was to prevent States from arbitrarily derogating from human rights obligations “in time of war”. War, unlike armed conflict, is a technical term and can only exist between two States. The annotation prepared by the Secretary-General again suggested that the function of Article 4 was to make express provision for limited continued applicability “in time of war”. This evidence does not address extra-territorial applicability but continued applicability in situations of conflict. Dennis M., “Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation”, 99 AJIL (2005) p. 119 at pp.137-8.
36 “Although it is not the function of the Human Rights Committee to review the conduct of a State party under other treaties, in exercising its functions under the Covenant the Committee has the competence to take a State party’s other international obligations into account when it considers whether the Covenant allows the State party to derogate from specific provisions of the Covenant.”; ibid, para.10.
37 “As certain elements of the right to a fair trial are explicitly guaranteed under international humanitarian law during armed conflict, the Committee finds no justification for derogation from these guarantees during other emergency situations.”; ibid, para.16.
38 “In order to protect non-derogable rights, the right to take proceedings before a court to enable the court to decide without delay on the lawfulness of detention, must not be diminished by a State party’s decision to derogate from the Covenant.”; ibid, para.16.
39 Ibid, Footnote 9 in para. 16 states in part “See the Committee’s concluding observations on Israel (1998) (CCPR/C/79/Add.93), para. 21: “… The Committee considers the present application of administrative detention to be incompatible with articles 7 and 16 of the Covenant, neither of which allows for derogation in times of public emergency … . The Committee stresses, however, that a State party may not depart from the requirement of effective judicial review of detention.” It should be noted that certain States, whilst not apparently objecting in principle to the possible applicability of the two legal regimes, have objected to particular manifestations of it. So, for example, the Netherlands objected to attempts by the HRC to raise events in Srebrenica; UN Doc. CCPR/CO/72/NET/Add.1, para. 19 (2003) cited in Dennis; note 35, p.125, footnote 47. This is a particularly interesting case because it is not clear that LOAC/IHL is applicable in peace support operations.
40 ICJ, note 31, para.112 – the Court expressly endorsed the Committee’s view.