The Role of The Human Rights Committee in Interpreting and Developing Humanitarian Law

1185
THE ROLE OF THE HUMAN RIGHTS COMMITTEE IN

INTERPRETING AND DEVELOPING HUMANITARIAN LAW
DAVID WEISSBRODT
*

The four Geneva Conventions and the two Additional
Protocols of 1977 generally lack authoritative mechanisms for
interpretation. Interpretation and application of these treaties are
left principally to the judgment of the States parties to the Geneva
Conventions and Protocols
1
as well as increasingly to the
International Criminal Court and tribunals. The International
Committee of the Red Cross (ICRC) encourages States parties to
comply with their obligations under humanitarian law; however,
it is not an adjudicative body,
2
and it rarely publishes its
authoritative interpretations of the Geneva Conventions and
Protocols. Article 90 of Protocol I Additional to the 1949 Geneva
Conventions authorizes the establishment of the International
Humanitarian Fact-Finding Commission.
3
While 70 states have

*
Regents Professor and Fredrikson & Byron Professor, University of
Minnesota Law School. The author thanks Joe Hansen, Nathaniel Nesbitt, Mary
Rumsey, and Korir SingOei, for their remarkable assistance on this article.
1
See Kristen Boon, Legislative Reform in Post-Conflict Zones: Jus Post Bellum and
the Contemporary Occupants Law-Making Powers, 50 MCGILL L.J. 285, 305 (2005)
(With regard to the enforcement of the Geneva Conventions more broadly, all
contracting parties are required by Article 1 to respect the Conventions, but the
only external enforcement mechanism in the treaty is Article 49 of the First
Convention, which requires high contracting parties to enact penal legislation so
as to prosecute grave breaches of the Conventions.); Neil A.F. Popovi,
Commentary, Humanitarian Law, Protection of the Environment, and Human Rights, 8
GEO. INTL ENVTL. L. REV. 67, 77 (1995) (Much of the responsibility for compliance
with the Geneva Conventions and Protocols is left to the parties themselves, aided
or cajoled by the International Committee of the Red Cross (ICRC).). The ICRC
has also convened scholars from around the world to gather customary
international law as to the content of humanitarian law. For a collection of works
written by an international assortment of scholars on customary international
humanitarian law, see CUSTOMARY INTERNATIONAL HUMANITARIAN LAW (Jean-
Marie Henckaerts & Louise Doswald-Beck eds., 2005).
2
See, e.g., Mary Margaret Penrose, No Badges, No Bars: A Conspicuous
Oversight in the Development of an International Criminal Court, 38 TEX. INTL L.J. 621,
641 (2003) (noting that the ICRC lacks adjudicative powers).
3
See Protocol Additional to the Geneva Conventions of 12 August 1949, and
Relating to the Protection of Victims of International Armed Conflicts art. 90, June
8, 1977, 1125 U.N.T.S. 3 [hereinafter Geneva Protocol I] (authorizing the
establishment of the International Humanitarian Fact-Finding Commission).
1186 U. Pa. J. Intl L. [Vol. 31:4

accepted the competence of the Commission, which has been ready
for activities since Article 90 came into force in 1991, the parties to
armed conflicts have yet to call upon it.
4

At the same time, eight human rights treaty bodies, thirty
thematic mechanisms of the U.N. Human Rights Council (formerly
Commission), and three regional human rights commissions and
courts have been requested to respond to various situations
involving humanitarian law violations.
5
Some of these decision-
making institutions (such as the Committee on the Rights of the
Child and the Inter-American Commission on Human Rights)
6

4
See Konstantin Meljnik & Stefan Weiss, Conference Report30 Years
Additional Protocols To The 1949 Geneva Conventions: Past, Present and Future, 18
th

Conference of the Legal Advisors to the German Army and of the Representatives
of the German Red Cross, 9 GERMAN L.J. 1355, 1360 (2008) [hereinafter Conference
Report on Protocol] ([A]s yet no single application for investigation by the
Commission has been filed.).
5
See, e.g., Commn on Human Rights, Res. 2002/36, 13(a), in Report on Fifty-
Eighth Session, U.N. Doc. E/CN.4/2002/200 (Apr. 22, 2002) (expressing the
Commissions grave concern over the continued occurrence of violations relating
to the right to life highlighted in the report of the Special Rapporteur [on
extrajudicial, summary or arbitrary executions] as deserving special attention
[including] . . . violations of the right to life during armed conflict). See also
Philip Alston et al., The Competence of the UN Human Rights Council and its Special
Procedures in Relation to Armed Conflicts: Extrajudicial Executions in the War on
Terror, 19 EUR. J. INTL L. 183, 19697 (2008) (Finally, the recent study on
customary international humanitarian law produced under the auspices of the
International Committee of the Red Cross concluded that [t]here is extensive
State practice to the effect that human rights law must be applied during armed
conflicts.). The International Court of Justice also plays a role in interpreting
and developing humanitarian law. See generally GENTIAN ZYBERI, THE
HUMANITARIAN FACE OF THE INTERNATIONAL COURT OF J USTICE: ITS CONTRIBUTION TO
INTERPRETING AND DEVELOPING INTERNATIONAL HUMAN RIGHTS AND HUMANITARIAN LAW
RULES AND PRINCIPLES 1(2008) (analyzing in systematic detail the contribution and
role of the ICJ in developing international human rights and humanitarian laws).
6
Article 64 of the American Convention provides that any member state of
the OAS may consult the Inter-American Court on the interpretation of the
Convention or of other treaties on the protection of human rights in the American
states. Inter-Am. Ct. H.R., Basic Documents Pertaining to Human Rights in the Inter-
American System, 174, OEA/Ser.L.V/II.82, doc.6 rev.1 (2003), available at
http://www1.umn.edu/humanrts/iachr/general.html. But see Las Palmeras v.
Colombia, 2001 Inter-Am. Ct. H.R. (ser.C) No. 67, at 7-10 (Feb. 4, 2000) ([The
American Convention] has only given the Court competence to determine
whether the acts or the norms of the States are compatible with the Convention
itself, and not with the 1949 Geneva Conventions.). The Inter-American Court of
Human Rights has thus far rejected the lex specialis application of humanitarian
law on jurisdictional grounds, but continues to refer to and consider humanitarian
law provisions. The Commission continues to apply humanitarian law as lex
specialis. See Letter from Juan E. Mndez, President, Inter-American Commission
on Human Rights, to Ref. Detainees in Guantanamo Bay, Cuba (Mar. 13, 2002),
2010] HUMAN RIGHTS COMMITTEE 1187

have interpreted and applied humanitarian law in their respective
domains.
7
Some treaty bodies (including the Human Rights
Committee)
8
have generally responded to requests referring to the
Geneva Conventions using only their own treaty.
9
Other
mechanisms (such as the U.N. Working Group on Enforced and
Involuntary Disappearances) have deferred to the International
Committee of the Red Cross.
10

The International Criminal Court,
11
the International Tribunal
for the Prosecution of Persons Responsible for Serious Violations of

http://www1.umn.edu/humanrts/cases/guantanamo-2003.html (quoting the
letter notifying the United States of the imposition of precautionary measures).
7
See, e.g., Comm. on the Rights of the Child, 19th Sess., Concluding
Observations of the Comm. on the Rights of the Child: Iraq, 15, U.N. Doc.
CRC/C/15/Add.94 (Oct. 26, 1998) (recommending that the State party raise the
legal minimum age of voluntary enlistment into the armed forces in the light of
international human rights and humanitarian law); Comm. on the Rights of the
Child, 34th Sess., Concluding Observations of the Comm. on the Rights of the Child:
Israel, 51, U.N. Doc. CRC/C/15/Add.195 (Oct. 9, 2002) ([W]ith reference to
international humanitarian law, notably the Geneva Convention relative to the
Protection of Civilian Persons in Time of War, that the State party fully comply
with the rules of distinction (between civilians and combatants) and
proportionality (of attacks that cause excessive harm to civilians).).
8
See generally Atkinson v. Canada, Decision on Admissibility, Human Rights
Comm., 55th Sess., No. 573/1994, U.N. Doc. CCPR/C/55/D/573/1994 (1995)
(citing Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12,
1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter Third Geneva Convention],
Geneva Protocol I, and the legal commentaries prepared by the International
Committee of the Red Cross); Julian v. New Zealand, Decision on Admissibility,
Human Rights Comm., 59th Sess., No. 601/1994, U.N. Doc.
CCPR/C/59/D/601/1994 (1997) (citing Third Geneva Convention, Geneva
Protocol I and the legal commentaries prepared by the International Committee
of the Red Cross); T.W.M.B v. The Netherlands, Decision on Admissibility,
Human Rights Comm., 43rd Sess., No. 403/1990, U.N. Doc.
CCPR/C/43/D/403/1990 (1991) (citing, inter alia, Geneva Convention Relative to
the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75
U.N.T.S. 287 [hereinafter Fourth Geneva Convention]).
9
All three of the communications cited in the preceding footnote were ruled
inadmissible.
10
See Office of the High Commr of Human Rights, Fact Sheet No.6 (Rev.3),
Enforced or Involuntary Disappearances, http://www2.ohchr.org/english/issues
/disappear/members.htm#facts (The Working Group does not deal with
situations of international armed conflict, in view of the competence of the
International Committee of the Red Cross (ICRC) in such situations, as
determined by the Geneva Conventions of 12 August 1949 and their Additional
Protocols of 1977.).
11
See generally Rome Statute of the International Criminal Court, July 17,
1998, 2187 U.N.T.S. 90 [hereinafter Rome Statute] (establishing the International
Criminal Court).
1188 U. Pa. J. Intl L. [Vol. 31:4

International Humanitarian Law Committed in the Territory of the
Former Yugoslavia since 1991 (ICTY),
12
the International
Criminal Tribunal for Rwanda (ICTR),
13
and several other
international or mixed national/international tribunals have a role
in establishing and interpreting international humanitarian law.
Further, national courts have been asked to apply humanitarian
law for some time, particularly in the context of the post-2001 war
on terror.
14
National military courts have consistently applied
humanitarian law. Some courts (e.g., in the United States) have
refused to apply humanitarian law,
15
while others invocation of it
has demonstrated their reluctance to explore the contours of this
relatively complex domain of international law.
16

For some legal issues, human rights mechanisms and national
courts can use humanitarian law to interpret international human
rights or national law. For example, humanitarian law may be
useful in assessing several issues such as whether a prisoner
qualifies as a prisoner of war with the associated privileges,
17
what

12
See generally Statute of the International Tribunal, S.C. Res. 827, U.N. Doc.
S/RES/827 (May 25, 1993) [hereinafter International Tribunal Statute]
(establishing an international tribunal for the prosecution of persons responsible
for violations of international human rights law in former Yugoslavia).
13
See generally Statute of the International Tribunal for Rwanda, S.C. Res. 955,
U.N. Doc. S/RES/955 (Nov. 8, 1994) (establishing a tribunal to prosecute persons
responsible for genocide and other serious violations of international
humanitarian law committed in Rwanda).
14
See, e.g., Hamdan v. Rumsfeld, 548 U.S. 557, 63031 (2006) (finding that
Common Article 3 of the Geneva Conventions applicable).
15
See, e.g., Hamdi v. Rumsfeld, 316 F.3d 450, 46869 (4th Cir. 2003) (declining
to apply the Geneva Conventions on the grounds that they are not self-executing)
revd on other grounds, 542 U.S. 507 (2004); Carlos Manuel Vzquez, Treaties as Law
of the Land: The Supremacy Clause and the Judicial Enforcement of Treaties, 122 HARV.
L. REV. 599, 605 n.25 (2008) (The lower courts are divided on whether the Geneva
Conventions are self-executing.). Compare United States v. Khadr, CMCR 07-001
at 4 n.4 (Ct. Mil. Commn Rev. 2007) (finding the Geneva Conventions generally
viewed as self-executing treaties), and United States v. Lindh, 212 F. Supp. 2d
541, 553 (E.D. Va. 2002) (observing that the Geneva Convention is [a] self-
executing treaty to which the United States is a signatory), with Hamdi, 316 F.3d
at 468 (observing that the Geneva Convention is not self-executing).
16
See Hamdi v. Rumsfeld, 542 U.S. 507, 520 (2004) (invoking the Third
Geneva Convention but declining to engage petitioners specific argument that his
detention violated Article 5). But see Hamdi, 542 U.S. at 54951 (Souter, J.,
concurring) (discussing petitioners Article 5 argument). See also Hamdan, 548 U.S.
at 567, 62833 (offering only an abbreviated analysis to support its holding that
Common Article 3 is applicable to the war against al-Qaeda).
17
See United States v. Noriega, 808 F. Supp. 791, 795 (S.D. Fla. 1992) (finding
that Noriega is a prisoner of war).

procedural protections are applicable to an enemy combatant,
18

and whether a killing
19
or a detention is arbitrary
20
because it
violates humanitarian law.
This article reviews more thoroughly the jurisprudence of the
Human Rights Committee (HRC) as a prelude for a broader
review of other treaty bodies, thematic mechanisms, regional
human rights courts or commissions, international criminal courts
or tribunals, and national courts. What lessons can be drawn about
the competence of these institutions in developing humanitarian
law? To what extent are there divergences or commonalities in the
interpretations given by these various institutions? What
conclusions can be drawn about the usefulness of humanitarian
law in resolving various issues? How are human rights bodies and
courts shaping the contours of humanitarian law? How has the
war on terror and, perhaps, counter-terrorism changed the need
for competent adjudicative mechanisms in the field of
humanitarian law? Should there be an authoritative and widely
accepted treaty body to interpret the Geneva Conventions and
Protocols?
The remainder of this article addresses the HRCs
interpretation of international humanitarian law. It examines the
Committees general approach to interpreting the International
Covenant on Civil and Political Rights (Civil and Political
Covenant), to addressing relevant issues of international law, and
to specifically addressing the rules of international humanitarian
law. Parts I through III consider all relevant documents that the
HRC has produced including its Decisions and Views, its General
Comments, and its Concluding Observations. Part IV synthesizes
the methodology and approach taken by the Committee in its three
realms. Part V recommends that in order for the Committee to
produce precedential material interpreting international
humanitarian law, it must explicitly consider the Geneva
Conventions and their Optional Protocols when individual
submissions raise issues of international humanitarian law. Under

18
See Hamdan, 548 U.S. at 613 (holding that military tribunals must comply
with Uniform Code of Military Justice and Geneva Conventions Common Article
3).
19
See Disabled Peoples Intl v. United States, Case 9213 (United States),
Inter-Am. C.H.R., OAS Doc. OEA/Ser.L./V/II.67, doc. 6 (1986).
20
Inter-Am. C.H.R., Decision, Request for Precautionary Measures (Detainees at
Guantnamo Bay, Cuba) (2002) reprinted in 41 I.L.M. 532 (2002) (evaluating the
legality to U.S. detentions in Guantnamo Bay, Cuba).
1190 U. Pa. J. Intl L. [Vol. 31:4

the Optional Protocol to the Civil and Political Covenant, the
ultimate findings must be limited to violations of the Covenant
itself, but the Committee could provide useful and precedential
analysis of international humanitarian obligations in reaching a
finding of a Covenant violation.
1. DECISIONS AND VIEWS
Under the Optional Protocol to the International Covenant on
Civil and Political Rights,
21
the HRC considers individual
submissions alleging violations of rights protected by the Civil and
Political Covenant.
22
Because the Decisions and Views are fact-
specific and contain the most analysis of the Covenant, they
provide, in theory, the best possibility of establishing international
humanitarian law precedent. This Part considers how the
Committee has addressed issues of international humanitarian
law, by first considering the Committees general approach to
relevant international instruments and then examining
international humanitarian issues raised before the Committee.
This Part finds that the Committee has proven extremely reluctant
to address any international instrument besides the Civil and
Political Covenant.
1.1. General Approach to Other International Instruments
This section first considers the development of the HRCs
jurisprudence as it addressed individual complaints. Early
complaints and the resulting decisions established certain
parameters for the Decisions and Views: the Committee was
extremely reluctant to step beyond the Civil and Political
Covenant. This section then considers more recent decisions in
which the Committee has begun to consider other relevant
international instruments explicitly in its Decisions and Views.

21
See Optional Protocol to the International Covenant on Civil and Political
Rights, Dec. 16, 1966, 999 U.N.T.S. 302, [hereinafter Optional Protocol] (providing
an individual complaint mechanism for the International Covenant on Civil and
Political Rights).
22
See International Covenant on Civil and Political Rights, Dec. 16, 1966, 999
U.N.T.S. 171 [hereinafter Civil and Political Covenant] (providing protection to
individual civil and political rights such as freedom of speech, freedom of
religion, and the right to live).

1.1.1. Jurisprudential Development
The Optional Protocol creates a complaint mechanism for
individuals claiming to be victims of violations of any rights set
forth in the [Civil and Political] Covenant.
23
The HRC takes this
mandate literally and limits its opinions to addressing provisions
of the Civil and Political Covenant. Originally, the Committee took
the position that to determine the rights protected by the
Covenant, it would look to the ordinary meaning of each
element, the travaux preparatoires of the Covenant,
24
and the
Universal Declaration of Human Rights.
25

K. L. v. Denmark was the first communication to raise claims of
violations of international instruments beyond the Civil and
Political Covenant.
26
Alongside alleged violations of the Civil and
Political Covenant, the author alleged violations of a number of
international instruments.
27
The HRC stated:
In accordance with article 1 of the Optional Protocol, the
Human Rights Committee has only examined the authors
claims insofar as they are alleged to reveal breaches by the

23
Optional Protocol, supra note 21.
24
See Marc J. Bossuyt, GUIDE TO THE TRAVAUX PRPARATOIRES OF THE
INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS 89 (Martinus Nijhoft
Publishers 1987) ([I]t was proposed, unsuccessfully, that in order to [sic] any
possible misinterpretation of the words international law, there should be in
addition to these words a reference to the principles of the Charter and the
Universal Declaration of Human Rights.). A proposed amendment to Article 46
providing that the Covenant shall not be interpreted in such a way as to impair
the provisions of the Convention on the Prevention and Punishment of Genocide
was withdrawn in light of the political consequences of its potential rejection. Id.
at 731-32. While it does not appear that the Commission considered the inclusion
of explicit references to the Geneva Conventions or humanitarian law, it did
consider referencing lawful acts of war as a source of permissible derogations.
Id. at 92. Such references, however, were either rejected or not voted on. Id. This
reticence to include a reference to war is attributable to the sentiment among
drafters that the covenant should not envisage, even by implication, the
possibility of war, as the United Nations was established with the object of
preventing war. Id. at 86.
25
See J.B. v. Canada, Decision, Human Rights Comm., 28th Sess., No.
118/1982, 6.3, U.N. Doc. Supp. No. 40 (A/41/40) (1986) (interpreting the scope
of Article 22 by looking to the ordinary meaning in its context, the travaux
preparatoires of the Covenant on Civil and Political Rights and the Universal
Declaration of Human Rights).
26
K.L. v. Denmark, Decision on Admissibility, Human Rights Comm., 9th
Sess., No. 59/1979, U.N. Doc. CCPR/C/OP/1 at 24-25 (1980).
27
Id.
1192 U. Pa. J. Intl L. [Vol. 31:4

State party of the provisions of the International Covenant
on Civil and Political Rights. The Committee has no
competence to examine alleged violations of other international
instruments.
28

As the author put forth rather implausible claims related to
taxation and mental illness, the HRC found the communication
inadmissible on the theory that the author did not substantiate his
allegations.
29
In another early ruling, when an author cited
International Labour Organization (ILO) jurisprudence in support
of establishing a right to strike under the Civil and Political
Covenant, the HRC limited the ILOs interpretation by stating,
[E]ach international treaty, including the International Covenant
on Civil and Political Rights, has a life of its own and must be
interpreted in a fair and just manner, if so provided, by the body
entrusted with the monitoring of its provisions.
30
The Committee
then conducted an original analysis, concluding that the Covenant
does not protect a right to strike.
31
Following these cases, the HRC
has not considered claims of violations of other international
instruments even though communications decided through the
mid-1990s frequently alleged such violations.
32
The only apparent

28
Id. at 25 (emphasis added).
29
Id.
30
J.B. v. Canada, Decision, Human Rights Comm., 28th Sess., No. 118/1982,
6.3, U.N. Doc. Supp. No. 40 (A/41/40) (1986).
31
Id. 6.36.4.
32
See K.J.L v. Finland, Decision on Admissibility, Human Rights Comm.,
49th Sess., No. 544/1993, U.N. Doc. CCPR/C/49/D/544/1993 (1993) (responding
only to the claim under the Civil and Political Covenant and not considering a
claimed violation of the International Covenant on Economic, Social and Cultural
Rights); J.P.K. v. The Netherlands, Decision on Admissibility, Human Rights
Comm., 43d Sess., No. 401/1990, U.N. Doc. CCPR/C/43/D/401/1990 (1991)
(ignoring a long list of alleged violations of various international instruments and
finding no violation of the Civil and Political Covenant); T.W.M.B. v. The
Netherlands, Decision on Admissibility, Human Rights Comm., 49th Sess., No.
403/1990, U.N. Doc. CCPR/C/43/D/403/1990 (1991) (finding again that there
was no violation of the Civil and Political Covenant); C.B.D. v. The Netherlands,
Decision, Human Rights Comm., 45th Sess., No. 394/1990, U.N. Doc.
CCPR/C/45/D/394/1990 (1992) (finding no violation of the Civil and Political
Covenant as well); Blom v. Sweden, Decision on Admissibility, Human Rights
Comm., No. 191/1985, 6.3, U.N. Doc. Supp. No. 40 (A/43/40) (1988)
(responding to claims that the UNESCO Convention against Discrimination in
Education of 1960 and the International Covenant on Economic, Social and
Cultural Rights were violated by stating the HRC could only consider a
communication in so far as it concerned an alleged breach of the provisions of the
International Covenant on Civil and Political Rights).

exception occurred in A.M. v. Denmark, where the author claimed
to be a victim of breaches of the Universal Declaration of Human
Rights.
33
The Committee correlated the protected rights in the
Universal Declaration to the corresponding rights in the Civil and
Political Covenant and proceeded as though the author had
alleged violations of the Covenant.
34
This exception, however, is
likely because the Covenant is premised explicitly on the Universal
Declaration.
35

The Committee similarly disregards claims of violations of
customary international law.
36
In a singular departure, however,
the HRC addressed customary international law in A. v. Australia.
37

The author, a citizen of Cambodia, claimed he was detained by
Australia in violation of Article 9 of the Civil and Political
Covenant and in contravention of international treaty law and
customary international law, citing
38
the Convention Relating to
the Status of Refugees.
39
Australia responded that the Committee
lacked competence to adjudicate claims premised on customary

33
See A.M. v. Denmark, Decision, Human Rights Comm., No. R.26/121,
3.2, U.N. Doc. Supp. No. 40 (A/37/40) (1982) (In particular he claims to be a
victim of breaches by Denmark of articles 5, 7 and 10 of the Universal Declaration
of Human Rights as regards the right not to be subjected to degrading treatment
or punishment, the right to equality before the law and the right to a fair trial.).
34
Id.
35
See J.B. v. Canada, Decision, Human Rights Comm., 28th Sess., No.
118/1982, 6.3, U.N. Doc. Supp. No. 40 (A/41/40) (1986) (exemplifying how the
Covenant is premised on the Universal Declaration).
36
See Williams v. Jamaica, Views, Human Rights Comm., 61st Sess., No.
609/1995, 3.4, U.N. Doc. CCPR/C/61/D/609/1995 (1997) (disregarding an
alleged breach of customary international law); Julian v. New Zealand, Decision,
Human Rights Comm., 59th Sess., No. 601/1994, 3.2, U.N. Doc.
CCPR/C/59/D/601/1994 (1997) (disregarding an alleged violation of
international law); Bordes v. France, Decision on Admissibility, Human Rights
Comm., 57th Sess., No. 645/1995, 2.1, U.N. Doc. CCPR/C/57/D/645/1995
(1996) (disregarding the complaint that President Chiracs plans to conduct a
series of underground nuclear tests was a clear violation of international law);
Nahlik v. Austria, Decision on Admissibility, Human Rights Comm., 57th Sess.,
No. 608/1995, 3.1, U.N. Doc. CCPR/C/57/D/608/1995 (1996) (disregarding an
alleged violation of the general principle of equal treatment under labor law).
37
See generally A v. Australia, Views, Human Rights Comm., 59th Sess., No.
560/1993, 9.3, U.N. Doc. CCPR/C/59/D/560/1993 (1997) (noting that it cannot
find any support for the contention that there is a rule of customary international
law in the context laid out in the complaint).
38
Id. 3.1.
8
See Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 150
[hereinafter Refugees Convention].
1194 U. Pa. J. Intl L. [Vol. 31:4

international law or other international instruments.
40
The author
maintained that other international instruments were relevant to
the interpretation of the Civil and Political Covenant.
41
Australia
responded that customary international law and other instruments
could not be imported into the Covenant.
42
The Committee ruled
that it was not per se arbitrary to detain individuals requesting
asylum, and that it could not find any support for the contention
that there is a rule of customary international law which would
render all such detention arbitrary.
43
While the Committee
provided no analysis, this statement stands as the HRCs only
pronouncement on the applicability of customary international law
to individual complaints under the Optional Protocol. Notably, the
HRC bypassed the parties contentions on whether it was
competent to consider customary international law and instead
stated that no such law covered the authors claim. The
implication, therefore, is that the Committee must have considered
customary international law in order to reach its decision.
On several occasions, the HRC has addressed potential overlap
between rights protected by the Civil and Political Covenant and
by other international instruments. According to the Committee,
the provisions of the Covenant apply even if a particular subject-
matter is referred to or covered in other international instruments. .
. .
44
In practice, even if there is overlap between international
instruments, the Committee considers the allegations under its

40
See A v. Australia, Views, Human Rights Comm., 59th Sess., No. 560/1993,
4.3, U.N. Doc. CCPR/C/59/D0560/1993 (1997) (The State party argues that the
Committee is competent only to determine whether there have been breaches of
any of the rights set forth in the Covenant; it is not permissible to rely on
customary international law or other international instruments as the basis of a
claim.).
41
Id. 5.3.
42
Id. 7.7.
43
Id. 9.3.
44
See Brooks v. The Netherlands, Views, Human Rights Comm., 42d Sess.,
No. 172/1984, 12.1, U.N. Doc. Supp. No. 40 (A/42/40) (1987) (The Committee
is of the view that the International Covenant on Civil and Political Rights would
still apply even if a particular subject-matter is referred to or covered in other
international instruments. . . .). See also Vos v. The Netherlands, Views, Human
Rights Comm., 44th Sess., 11.2, No. 218/1986, U.N. Doc. Supp. No. 40
(A/44/40) (1989) (detailing further how the provisions of the Covenant apply);
Danning v. The Netherlands, Views, Human Rights Comm., 42d Sess., No.
180/1984, 6.3, U.N. Doc. Supp. No. 40 (A/42/40) (1987) (explaining how the
provisions of the Civil and Political Covenant apply even if there are other
applicable international instruments).

own jurisprudence.
45
Indeed, the Committee resolves differences
between its jurisprudence and other bodies jurisprudence in favor
of its own case law.
46
As a result, the author must invoke a
substantive right of the Covenant for the HRC to consider the
communication.
47

The issue of overlap also arises when an author has previously
submitted a complaint to the European Commission of Human
Rights. The Optional Protocol to the Civil and Political Covenant
precludes the HRC from considering a complaint if the same
matter is being examined under another procedure of
international investigation or settlement. . . .
48
In the event of
submission to both bodies, the HRC determines whether the right
protected by the Civil and Political Covenant is sufficiently similar
to a right protected by the European Convention so as to constitute
the same matter. The HRC has found Articles 14 and 17 of the
Civil and Political Covenant to be sufficiently proximate to Articles
6, 8, and 14 of the European Convention,
49
and Article 22(1) of the

45
See, e.g., Danning, No. 180/1984, 6.3 (stating that even if the protected
right overlaps with another instrument, the Committee must determine whether
the facts indicate a breach under the Civil and Political Covenant).
46
See Smart v. Trinidad and Tobago, Views, Human Rights Comm., 63d
Sess., No. 672/1995, 3.1, 6.2, U.N. Doc. CCPR/C/63/D/672/1995 (1998) (citing
its own case law favorably against a claim citing Jamaican law and the European
Court of Human Rights).
47
See Hoofdman v. The Netherlands, Views, Human Rights Comm., 64th
Sess., No. 602/1994, 6.2, U.N. Doc. CCPR/C/64/D/602/1994 (1998) (The
Committee recalled that, whereas authors must invoke the substantive rights
contained in the Covenant, they were not required, for purposes of the Optional
Protocol, necessarily to do so by reference to specific articles of the Covenant.).
48
See Optional Protocol, supra note 21, art. 5(2)(a) (The Committee shall not
consider any communication from an individual unless it has ascertained that . . .
the same matter is not being examined under another procedure of international
investigation or settlement. . . .).
49
See Mahabir v. Austria, Decision on Admissibility, Human Rights Comm.,
82d Sess., No. 944/2000, 8.5, U.N. Doc. CCPR/C/82/D/944/2000 (2004)
(showing how the various articles are very similar to each other); Petersen v.
Germany, Decision on Admissibility, Human Rights Comm., 80th Sess., No.
1115/2002, 6.3, 6.5, U.N. Doc. CCPR/C/80/D/1115/2002 (2004) (illustrating
the similarities between articles 14 and 17 of the Civil and Political Covenant to
articles 6, 8, and 14 of the European Convention); Rogl v. Germany, Decision on
Admissibility, Human Rights Comm., 70th Sess., No. 808/1998, 9.4, U.N. Doc.
CCPR/C/70/D/808/1998 (2000) (showing the similarities between articles 14 and
17 of the Civil and Political Covenant to articles 6, 8, and 14 of the European
Convention). But see Lederbauer v. Austria, Views, Human Rights Comm., 90th
Sess., No. 1454/2006, 7.3, U.N. Doc. CCPR/C/90/D/1454/2006 (2007) (finding
that Article 14 of the Civil and Political Covenant differs enough in scope and
1196 U. Pa. J. Intl L. [Vol. 31:4

Civil and Political Covenant to be proximate to Article 11(1) of the
European Convention.
50
In contrast, the HRC has found that
Article 26 of the Civil and Political Covenant is broader and
provides greater protection than Article 14 of the European
Convention.
51

In many communications, rather than allege violations of other
international instruments, authors cite those instruments as
support for an alleged violation of the Civil and Political Covenant.
Like the alleged direct violations, the HRC generally does not
discuss the other international standards in these situations. In
cases alleging violations of the Covenant that cite to other
international instruments where the HRC finds no violation, the
Committee does not refer to the other sources cited.
52
Similarly, in
the large majority of communications where the author supports
an alleged violation of the Covenant by reference to other
international or foreign instruments and the Committee finds a

jurisprudence from Article 6 of the European Convention to not constitute the
same matter).
50
See Wallmann v. Austria, Views, Human Rights Comm., 80th Sess., No.
1002/2001, 8.4, U.N. Doc. CCPR/C/80/D/1002/2001 (2004) (showing how
these articles are similar).
51
See Mahabir, No. 944/2000, 8.5 (showing how, in regards to these
articles, the Political Covenant is more protective than the European Convention);
Althammer v. Austria, Views, Human Rights Comm., 78th Sess., No. 998/2001,
8.4, U.N. Doc. CCPR/C/78/D/998/2001 (2003) (The Committee on earlier
occasions has already decided that the independent right to equality and non-
discrimination embedded in article 26 of the Covenant provides a greater
protection than the accessory right to non-discrimination contained in article 14 of
the European Convention.). But see Irschik v. Austria, Decision on Admissibility,
CCPR/C/80/D/990/2001 (2004) (finding that property rights protected under
Article 26 of the Civil and Political Covenant are similarly protected by Article 1
of Protocol No. 1 to the European Convention).
52
See Queenan v. Canada, Decision on Admissibility, Human Rights Comm.,
84th Sess., No. 1379/2005, 3.3, U.N. Doc. CCPR/C/84/D/1379/2005 (2005)
(citing as support the Convention on the Rights of the Child, G.A. Res. 44/25,
annex, 44 U.N. GAOR Supp. No. 49, at 167, U.N. Doc. A/44/49 (1989); Karawa v.
Australia, Decision on Admissibility, Human Rights Comm., 84th Sess., No.
1127/2002, 3.4, U.N. Doc. CCPR/C/84/D/1127/2002 (2005) (referring to the
European Convention for the Protection of Human Rights and Fundamental
Freedoms, 213 U.N.T.S. 222 [hereinafter European Convention]); Celal v. Greece,
Decision on Admissibility, Human Rights Comm., 82d Sess., No. 1235/2003, 3.2,
U.N. Doc. CCPR/C/82/D/1235/2003 (2004) (citing the Basic Principles on the
Use of Force and Firearms by Law Enforcement Officials, Eighth Congress on the
Prevention of Crime and the Treatment of Offenders, Havana, Aug. 27Sept. 7,
1990, U.N. Doc. A/CONF.144/28/Rev.1, at 112 [hereinafter Basic Principles] and
jurisprudence of the European Court of Human Rights).

violation, the Committee performs its analysis based solely on the
Civil and Political Covenant.
53
State parties also cite international
instruments as support for their position, which the Committee
similarly tends not to acknowledge.
54

1.1.2. More Recent Utilization of International Instruments
Despite its apparent reluctance to do so, the Committee has on
occasion referenced various international instruments. Since 2003,
the Committee has referenced such instruments with growing
frequency, although it still remains an unusual occurrence.
The Committee first referenced another international
instrument as support for its ruling in Mukong v. Cameroon, in
which it sua sponte cited the UN Standard Minimum Rules for the
Treatment of Prisoners (Standard Minimum Rules) as evidence
of a violation of Article 7 of the Civil and Political Covenant.
55
This
opinion led to a string of claims involving inhuman detention
conditions citing the same UN document as support.
56
The

53
See Sathasivam v. Sri Lanka, Views, Human Rights Comm., 93d Sess., No.
1436/2005, 3.6, 3.9, U.N. Doc. CCPR/C/93/D/1436/2005 (2008) (finding a
violation of the Covenant based on its own jurisprudence, although the author
cited as support the European Court of Human Rights, the Inter-American Court
of Human Rights, and the U.N. Body of Principles for the Protection of All
Persons Under Any Form of Detention or Imprisonment, G.A. Res. 43/173, U.N.
GAOR. 43d Sess., Annex, Supp. No. 49, U.N. Doc. A/RES/43/173 (1988)
[hereinafter Detention Principles]); Alzery v. Sweden, Views, Human Rights
Comm., 88th Sess., No. 1416/2005, 4.23, 4.26-4.27, U.N. Doc.
CCPR/C/88/D/1416/2005 (2006) (encouraging the Committee to follow
approaches taken by the Committee Against Torture and the Committee of
Ministers of the Council of Europe and citing Refugees Convention, supra note
39).
54
See, e.g., Ahani v. Canada, Views, Human Rights Comm., 80th Sess., No.
1051/2002, 4.9, U.N. Doc. CCPR/C/80/D/1051/2002 (2004) (citing as support
the European Convention, supra note 52).
55
See Mukong v. Cameroon, Views, Human Rights Comm., 51st Sess., No.
458/1991, 9.3, U.N. Doc. CCPR/C/51/D/458/1991 (1994) ([I]n accordance
with Rules 10, 12, 17, 19 and 20 of the U.N. Standard Minimum Rules for the
Treatment of Prisoners . . . , minimum floor space and cubic content of air for each
prisoner, adequate sanitary facilities, clothing which shall be in no manner
degrading or humiliating, provision of a separate bed, and provision of food of
nutritional value adequate for health and strength . . . [are] minimum
requirements which the Committee considers should always be observed.);
Standard Minimum Rules for the Treatment of Prisoners, U.N. Doc.
A/CONF/611, Annex I A (1955) [hereinafter Standard Minimum Rules]
(providing a minimum standard of care).
56
See Siewpersaud v. Trinidad and Tobago, Views, Human Rights Comm.,
81st Sess., No. 938/2000, 3.3, U.N. Doc. CCPR/C/81/D/938/2000 (2004) (noting
1198 U. Pa. J. Intl L. [Vol. 31:4

Committee, while finding violations in these cases, generally has
not referred to the UN document.
57
The Committee did cite the

the string of claims on the inhuman detention conditions); Lobban v. Jamaica,
Views, Human Rights Comm., 80th Sess., No. 797/1998, 3.2, U.N. Doc.
CCPR/C/80/D/797/1998 (2004) (The author alleges that he was locked up in
his cell for up to 23 hours a day, that no mattress or bedding were provided, that
no integral sanitation existed . . . .); Francis v. Trinidad and Tobago, Views,
CCPR/C/75/D/899/1999 (2002) (alleging poor detention conditions); R.S. v.
Trinidad and Tobago, Views, Human Rights Comm., 74th Sess., No. 684/1996,
3.1, U.N. Doc. CCPR/C/74/D/684/1996 (2002) (alleging lack of psychiatric
care under the UN Standard Minimum Rules for the Treatment of Prisoners);
Evans v. Trinidad and Tobago, Views, Human Rights Comm., 77th Sess., No.
908/2000, 3.3, U.N. Doc. CCPR/C/77/D/908/2000 (1999) (The author claims
that the inadequate conditions of confinement during his five years on death row
constitute cruel, inhuman and degrading treatment . . . .); Finn v. Jamaica, Views,
Human Rights Comm., 63d Sess., No. 617/1995, 3.2-3.3, U.N. Doc.
CCPR/C/63/D/617/1995 (1998) (complaining that abusive language and threats
were made upon arrest, and that conditions in the prison were unsanitary because
of a lack of bedding, a lack of soap and toilet paper, poor food and drink quality,
little ventilation and a lack of medical treatment); Shaw v. Jamaica, Views,
Human Rights Comm., 62d Sess., No. 704/1996, 5.5 U.N. Doc.
CCPR/C/62/D/704/1996 (1998) (citing Resolution 1996/15 of the U.N. Economic
and Social Council on Safeguards Guaranteeing Protection of the Rights of those
facing the Death Penalty); Deidrick v. Jamaica, Views, Human Rights Comm.,
62d Sess., No. 619/1995, 3.2, U.N. Doc. CCPR/C/62/D/619/1995 (1998)
(Counsel concludes that fundamental and basic requirements of the UN
Standard Minimum Rules for the Treatment of Prisoners have not been met
during the authors detention at St. Catherine District Prison . . . .).
57
See, e.g., Finn v. Jamaica, No. 617/1995, 9.2 (Consequently, the
Committee finds that in the circumstances where the State party has not provided
any evidence in respect of the investigation it alleges to have carried out, due
weight must be given to the authors allegations. Accordingly, the Committee
finds that there has been a violation of articles 7 and 10, paragraph 1, of the
Covenant.); Shaw, No. 704/1996, 7.1 (concluding that these conditions
amount to a violation of articles 7 and 10, paragraph 1, of the Covenant without
mentioning the Standard Minimum Rules); Deidrick, No. 619/1995, 9.3 (failing
to make a decision with regard to alleged violations under the Standard
Minimum Rules and mentioning only that [i]n the committees opinion . . . [i]t
finds that holding a prisoner in such conditions of detention constitutes inhuman
treatment in violation of article 10, paragraph 1, and of article 7 of the Civil and
Political Covenant).

UN document in one recent case
58
and in another instance noted
that it considers these standards relevant.
59

Most notably, considering the issue of enforced disappearance,
the Committee sua sponte referenced the definition provided by
the Rome Statute of the International Criminal Court (ICC) and
linked it to Articles 6, 7, 9, and 10 of the Civil and Political
Covenant.
60
Since first referencing the ICCs definition, the
Committee has consistently cited it for issues of enforced
disappearance.
61
More recently, the Committee also has cited sua

58
See Benhadj v. Algeria, Views, Human Rights Comm., 90th Sess., No.
1173/2003, 8.5, U.N. Doc. CCPR/C/90/D/1173/2003 (2007) (The Committee
reiterates that persons deprived of their liberty may not be subjected to any
hardship or constraint other than that resulting from the deprivation of liberty;
they must be treated in accordance with, inter alia, the Standard Minimum Rules
for the Treatment of Prisoners.).
59
See Baban v. Australia, Views, Human Rights Comm., 78th Sess., No.
1014/2001, Notes 7, U.N. Doc. CCPR/C/78/D/1014/2001 (2003) (The authors
observe Third Committee of the General Assembly made express reference to the
Standard Minimum Rules for the Treatment of Prisoners (1957) when dealing in
1958 with article 10 in draft. The Committee has considered these Rules relevant
to article 10 in both its General Comment 21 and in its consideration of States
parties periodic reports under the Covenant.).
60
See Sarma v. Sri Lanka, Views, Human Rights Comm., 78th Sess., No.
950/2000, 9.3, U.N. Doc. CCPR/C/78/D/950/2000 (2003) (referencing the
definition provided by the Rome Statute); Rome Statute of the International
Criminal Court art. 7(2)(i), July 17, 1998, 2187 U.N.T.S. 90 (demonstrating how the
definition of enforced disappearance provided by the Rome Statute links to
Articles 6, 7, 9, and 10 of the Civil and Political Covenant).
61
See Sharma v. Nepal, Views, Human Rights Comm., 94th Sess., No.
1469/2006, 7.4, U.N. Doc. CCPR/C/94/D/1469/2006 (2008) (As to the alleged
disappearance of the authors husband, the Committee recalls the definition of
enforced disappearance in article 7, paragraph 2(i), of the Rome Statute of the
International Criminal Court . . . .); El Hassy v. Libyan Arab Jamahiriya, Views,
Human Rights Comm., 91st Sess., No. 1422/2005, 6.6, U.N. Doc.
CCPR/C/91/D/1422/2005 (2007) (As to the alleged disappearance of the
authors brother, the Committee recalls the definition of enforced disappearance
in article 7, paragraph 2(i), of the Rome Statute of the International Criminal
Court. . .); Mohammed El Alwani v. Libyan Arab Jamahiriya, Views, Human
Rights Comm., 90th Sess., No. 1295/2004, 6.2, U.N. Doc.
CCPR/C/90/D/1295/2004 (2007) (The Committee recalls the definition of
enforced disappearance in article 7, paragraph 2(i), of the Rome Statute of the
International Criminal Court . . . .); Grioua v. Algeria, Views, Human Rights
Comm, 90th Sess., No. 1327/2004, 7.2, U.N. Doc. CCPR/C/90/D/1327/2004
(2007) (The Committee recalls the definition of enforced disappearance in article
7, paragraph 2 (i), of the Rome Statute of the International Criminal Court . . . .);
Kimouche v. Algeria, Views, Human Rights Comm., 90th Sess., No. 1328/2004,
7.2, U.N. Doc. CCPR/C/90/D/1328/2004 (2007) (The Committee recalls the
definition of enforced disappearance in article 7, paragraph 2 (i), of the Rome
Statute of the International Criminal Court . . . .).
1200 U. Pa. J. Intl L. [Vol. 31:4

sponte the Declaration on the Protection of All Persons from
Enforced Disappearance
62
and the International Convention for the
Protection of All Persons from Enforced Disappearance.
63

In its Ninety-Fourth Session, for the first time, the HRC
explicitly incorporated an authors citation to another international
instrument as support for finding a violation of the Civil and
Political Covenant. In the complaint of Madoui v. Algeria, the
author cited the Declaration on the Protection of All Persons from
Enforced Disappearance, and the Committee used it as support in
finding a violation of Article 16.
64

In Faure v. Australia, the Committee had to determine the
meaning of forced or compulsory labor under Article 8.
65

Responding to both parties citations to International Labour
Organization (ILO) instruments, the Committee stated: While the
definitions of the relevant ILO instruments may be of assistance in
elucidating the meaning of the terms, it ultimately falls to the
Committee to elaborate the indicia of prohibited conduct.
66

Without further reference to the ILO instruments, the Committee
then performed a detailed analysis of the specific conduct

62
See generally Declaration on the Protection of All Persons from Enforced
Disappearance, G.A. Res. 47/133, U.N. Doc. A/RES/47/133 (Feb. 12, 1993)
(declaring forced disappearances an offense to human dignity, prohibiting any
nation from practicing, permitting or tolerating forced disappearances and
declaring violations to be criminal).
63
See, e.g., Grioua, No. 1327/2004, 7.8 (citing article 1, paragraph 2, of the
Declaration on the Protection of All Persons from Enforced Disappearance and
article 2 of the International Convention for the Protection of All Persons from
Enforced Disappearance to establish the illegal nature of enforce disappearances);
Kimouche, No. 1328/2004, 7.8 (citing the same). See generally International
Convention for the Protection of All Persons from Enforced Disappearance, G.A.
Res. 61/177, U.N.Doc. A/RES/61/177 (Jan. 12, 2007) (asserting the illegality of
enforced disappearances, defining the term, establishing measures to hold
perpetrators criminally responsible and who should be held responsible, among
other things).
64
Madoui v. Algeria, Views, Human Rights Comm., 94th Sess., No.
1495/2006, 3.4, U.N. Doc. CCPR/C/94/D/1495/2006 (2008) (As to article 16,
the author believes that her sons forced disappearance is inherently a denial of
the right to recognition everywhere as a person before the law. She cites the 18
December 1992 Declaration on the Protection of All Persons from Enforced
Disappearance.).
65
See Faure v. Australia, Views, Human Rights Comm., 85th Sess., No.
1036/2001, 7.5, U.N. Doc. CCPR/C/85/D/1036/2001 (2005) (The Committee
notes, moreover, that article 8, paragraph 3(c)(iv), of the Covenant exempts from
the term forced or compulsory labour such work or service forming part of
normal civil obligations.).
66
Id.

prohibited by the Civil and Political Covenant.
67
Therefore, while
the Committee did not explicitly base its analysis on ILO
instruments, it acknowledged that such instruments can illuminate
Civil and Political Covenant protections.
In one complaint, the Committee cited sua sponte the 1951
Convention on the Status of Refugees as support in finding
violations of Articles 17, 23, and 24.
68

In a complex complaint considered during its Ninety-Fourth
Session, the Committee had to confront an apparent contradiction
between a UN Security Council Resolution and rights protected by
the Civil and Political Covenant.
69
Essentially, the authors of the
complaint alleged that Belgium placed their names prematurely on
a list pursuant to a Security Council resolution aimed at restricting
activities of people associated with terrorism.
70
In the submission,
the authors and Belgium engaged in a back-and-forth debate over
international obligations. The authors claimed that a state could
only avoid its duties under the Civil and Political Covenant if there
were a public emergency, and that the general danger of terrorism
did not meet Article 4s public emergency standard so as to allow
Belgium to violate their rights.
71
They claimed that because
Belgium acted pursuant to the UN Security Council resolution and
in contradiction of the Civil and Political Covenant, the Security
Council resolution violated peremptory norms of international law
established by the Civil and Political Covenant, and Belgium
should have adhered to the Civil and Political Covenant.
72

Belgium responded that the HRC had no jurisdiction to consider

67
Id.
68
See El Dernawi v. Libyan Arab Jamahiriya, Views, Human Rights Comm.,
90th Sess., No. 1143/2002, 6.3, U.N. Doc. CCPR/C/90/D/1143/2002 (2007)
(recognizing that the States action was the sole barrier preventing the author
from reuniting with his family in Switzerland, and that the author . . . as a person
granted refugee status under the 1951 Convention on the Status of Refugees,
cannot reasonably be expected to return to his country). See generally Refugees
Convention, supra note 39 (establishing parameters for the just treatment of
refugees).
69
See Sayadi v. Belgium, Views, Human Rights Comm., 94th Sess., No.
1472/2006, 10.13, U.N. Doc. CCPR/C/94/D/1472/2006 (2008) ([E]ven though
the State party is not competent to remove the authors names from the United
Nations and European lists, it is responsible for the presence of the authors
names on those lists.).
70
Id. 2.12.3.
71
Id. 3.13, 5.8.
72
Id. 5.7.
1202 U. Pa. J. Intl L. [Vol. 31:4

the validity of the Security Council resolution.
73
It further argued
that it was required to abide by the UN Charter, that it had no
responsibility for how the Security Council acted, and that it had to
act pursuant to a Charter obligation rather than comply with a
lower-ranking obligation that runs counter to the Charter.
74

The case was contentious: the HRC issued a majority decision
along with more dissenting opinions than were filed in any
previous decision. The majority view first stated:
While the Committee could not consider alleged violations
of other instruments such as the Charter of the United
Nations, or allegations that challenged United Nations rules
concerning the fight against terrorism, the Committee was
competent to admit a communication alleging that a State
party had violated rights set forth in the Covenant,
regardless of the source of the obligations implemented by
the State party.
75

The Committee went on to state that it was competent to
consider the compatibility with the Covenant of the national
measures taken to implement a Security Council resolution.
76

Finding Belgium in violation of Articles 12 and 17, the Committee
reaffirmed its obligation to act as a guarantor of rights protected by
the Covenant.
77
The large amount of individual dissents varied
over multiple procedural and substantive issues. This case,
presented against a complex backdrop of international obligations
and substantive issues, demonstrates that the HRC only tolerates
derogations from the Civil and Political Covenant when they are
taken pursuant to Article 4 of the Covenant.
1.2. International Humanitarian Law
The vast majority of individual communications submitted to
the HRC do not arise from situations of armed conflict or declared
states of emergency. As a result, most decisions are not
immediately useful in determining the Committees approach to
issues of international humanitarian law. Nonetheless, there are

73
Id. 6.1.
74
Id. 6.3, 8.1.
75
Id. 7.2.
76
Id. 10.6.
77
Id.

some decisions that may indicate the extent to which the
Committee would address allegations of such violations.
The Committee has considered some individual
communications arising from situations resembling armed conflict.
In a string of cases early in the Committees jurisprudence,
Uruguay replied to alleged Covenant violations by claiming that it
had only taken necessary and prompt security measures.
78
The
Committee rejected the Uruguayan governments claims, stating
that Article 4 of the Covenant only allowed derogations under
strictly defined circumstances and that some rights could never be
derogated.
79
The HRC similarly rejected arguments by Colombia
that it was necessary to suspend certain rights during the
existence of a state of siege in all the national territory due to
violent narcotics trafficking.
80
When South Korea claimed it
needed to restrict its citizens rights to defend against possible
North Korean intrusions, the Committee replied that general
national security threats were insufficient to suspend the

78
See Silva v. Uruguay, Views, Human Rights Comm., 8.2, No. 34/1978,
12th Sess., U.N. Doc. CCPR/C/OP/1 (1981) ([T]he government of Uruguay has
made reference to an emergency situation in the country which was legally
acknowledged in a number of Institutional Acts.); Sala de Touron v. Uruguay,
Views, Human Rights Comm., 12th Sess., 8, No. 32/1978, U.N. Doc.
CCPR/C/OP/1 (1984) (The Government has referred to provisions of
Uruguayan law, including the prompt security measures, to justify its acts
under the Covenant); Weisz v. Uruguay, Views, Human Rights Comm., 11th
Sess., 8 No. 28/1978, U.N. Doc. CCPR/C/OP/1 (1984) (deciding a case in which
Uruguay claimed that an arrestee was detained not for his political beliefs or
ideas or trade-union membership, but for having participated directly in
subversive activities.); Lanza de Netto v. Uruguay, Views, Human Rights
Comm., 9th Sess., No. 8/1977, at 45, U.N. Doc. CCPR/C/OP/1 (1984) (deciding a
case in which Uruguay claimed that the detainees were arrested under the
prompt security measures and charged in military court with the offense of
subversive association).
79
See Silva, No. 34/1978, 8.3 (A] state, by merely invoking the existence of
exceptional circumstances, cannot evade the obligations, which it has undertaken
by ratifying the Covenant.); Sala de Touron, No. 32/1978, 10 ([T]he
government has not made any submissions of fact or law to justify such
derogation.); Weisz, No. 28/1978, 8 (detailing how arrestee was detained not
for his political beliefs or ideas or trade-union membership, but for having
participated directly in subversive activities.); Lanza de Netto, No. 8/1977, 8
(noting that detainees were arrested under the prompt security measures and
charged in military court with the offense of subversive association.).
80
Husband of Maria Fanny Suarez de Guerrero v. Colombia, Decision on
Admissibility, Human Rights Comm., 37th Sess., No. R.11/45, 12.2, U.N. Doc.
Supp. No. 40 (A/37/40) (1982).
1204 U. Pa. J. Intl L. [Vol. 31:4

Covenants protections.
81
The Committee has continued to
maintain that a state cannot invoke national security to avoid the
Committees scrutiny.
82

The HRC also has clarified that the Article 1 statement,
individuals subject to [a State partys] jurisdiction, refers not to
the place where the violation occurred, but rather to the
relationship between the individual and the State in relation to a
violation of any of the rights set forth in the Covenant, wherever
they occurred.
83
Consequently, the State party can be held liable
for acts committed by its agents within another countrys
territory.
84

Therefore, in the situations most nearly approximating armed
conflict, the HRC has firmly applied and upheld the Covenants
protections.
1.3. Summary
The Decisions and Views of the Committee, rendered in
response to individual complaints under the Optional Protocol to
the Civil and Political Covenant, present varied, and sometimes
contradictory, responses. On the one hand, the Committee has
remained fiercely loyal to its duty to consider only complaints
alleging a violation of the Civil and Political Covenant. On the
other hand, the Committee has slowly changed its approach, and
now appears more willing to consider and utilize other
international instruments when interpreting protections offered by
the Covenant.
It appears that the Committee would not directly consider a
claim under international humanitarian law unless that claim was
couched in the protections offered by specific articles of the Civil
and Political Covenant. While an individual communication could

81
See Park v. Republic of Korea, Views, Human Rights Comm., 64th Sess.,
No. 628/1995, 8.2, 10.3-10.4, U.N. Doc. CCPR/C/64/D/628/1995 (1998)
([T]he State party has not made the declaration under article 4(3) of the Covenant
that a public emergency existed and that it derogated certain Covenant rights on
this basis.).
82
See Tsarjov v. Estonia, Views, Human Rights Comm., 91st Sess., No.
1223/2003, 7.3, U.N. Doc. CCPR/C/91/D/1223/2003 (2007) ([T]he invocation
of national security on the part of a State party does not, ipso facto, remove an
issue wholly from the Committees scrutiny. . . .).
83
Celiberti de Casariego v. Uruguay, Views, Human Rights Comm., 13th
Sess., No. 56/1979, 10.2, U.N. Doc. CCPR/C/OP/1 (1984).
84
Id. 10.3.

cite international humanitarian law to support an alleged violation
of a Covenant right, the Committees reluctance to incorporate
other international instruments explicitly into its decisions
suggests that it would not recognize any violation of the Geneva
Conventions. At best, the HRC may receive communications citing
the Geneva Conventions as support for violations of the Civil and
Political Covenant, but it would almost assuredly frame its opinion
solely in terms of the latter.
The result is that when it comes to interpreting international
humanitarian law jurisprudentially, the Committee has essentially
bound itself to the explicit language of the Civil and Political
Covenant. While there are important fundamental rights protected
in this Covenant, rights that the Committee has demonstrated it is
committed to upholding, its approach fails to address fully the
protections of international humanitarian law. If an individual
seeks redress through the HRC, he or she must ultimately
demonstrate a violation of a substantive right prescribed in the
Civil and Political Covenant.
This narrow focus has another consequence: by releasing
opinions framed entirely within the language of the Civil and
Political Covenant, the Committees decisions lose precedential
value for other bodies seeking to interpret international
humanitarian law. In other words, the HRCs opinions are easily
relegated to and contained within the Covenant. While the
explanation for the limited holdings is that the HRCs explicit
mandate is to consider only violations of the Civil and Political
Covenant, the outcome is a disconcertingly narrow focus on a
limited universe of human rights violations.
In sum, in its Optional Protocol jurisprudence, the HRC largely
limits itself to considering violations of the Civil and Political
Covenant. Where the Covenant overlaps with the Geneva
Conventions, the Committee may decide and uphold individual
international humanitarian law protections. Unfortunately, those
decisions will be framed entirely within the language of the
Covenant, and thus may have limited precedential appeal outside
of the Covenant. Where the Covenant does not overlap with
protections offered by the Geneva Conventions, the HRC provides
no recourse and consequently no legal interpretations.
1206 U. Pa. J. Intl L. [Vol. 31:4

2. GENERAL COMMENTS
The HRC periodically produces General Comments designed
to explicate specific protections offered by the Civil and Political
Covenant. In marked contrast to the individual submissions, the
HRC explicitly considers other international instruments in its
General Comments. This Section considers the Committees
general approach to other international instruments, and then
extrapolates from that approach the implications for interpreting
international humanitarian law. While the HRC considers other
international instruments in various contexts, it directly addresses
the interplay between the Civil and Political Covenant and
international humanitarian law when considering a states
obligations under Article 4. The HRC emphasizes that no state
may invoke Article 4 to derogate from rights protected by other
international obligations and that in situations of armed conflict,
the Covenant and international humanitarian law are
complementary, not exclusive. While such a position mayvia an
individual complaint alleging a violation of Article 4 during an
armed conflictrequire the Committee to consider all the states
international obligations (including those of international
humanitarian law), it is unclear what form the Committees
analysis would actually take.
2.1. General Approach to Other International Instruments
In its General Comments, the HRC references other
international instruments or obligations in four different contexts:
(i) most relevant to international humanitarian law, when the HRC
discusses possible derogation of rights protected by the Covenant,
the Committee refers to other international obligations of State
Parties; (ii) the HRC refers to other international standards when
interpreting the articles of the Civil and Political Covenant that
explicitly reference international law; (iii) the HRC occasionally
refers to other international instruments to define terms or clarify
obligations under the Civil and Political Covenant; and (iv) the
HRC intermittently addresses states international obligations
beyond the scope of the Covenant. Each context will be discussed
in turn.

2.1.1. International Obligations Preventing Derogation
Because Article 4(1) allows states to take measures derogating
from some of their obligations under the Civil and Political
Covenant, the Committee has sought to make clear that derogation
is only permissible to the extent it is compatible with other
international obligations. According to the HRC, Article 4 cannot
be read as justification for derogation . . . if such derogation would
entail a breach of the states other international obligations,
whether based on treaty or general international law.
85
The HRC
also refers to Article 5(2), which protects against derogation of
fundamental rights recognized in other instruments.
86
The
Committee takes an expansive view of other international
obligations, referencing, for example, norms of general
international law,
87
international humanitarian law,
88
crimes
against humanity,
89
principles of legality and the rule of law,
90

various conventions and UN standards,
91
and the report of the
International Committee of the Red Cross on rules of international
humanitarian law.
92
Because a state may not derogate provisions
representing customary international law, a state may never be
able to derogate some provisions of the Civil and Political
Covenant not listed in Article 4(2).
93

85
Human Rights Comm., 72nd Sess., General Comment 29: States of Emergency
(Article 4), 9, U.N. Doc. CCPR/C/21/Rev.1/Add.11 (Aug. 31, 2001).
86
See Civil and Political Covenant, supra note 22, art. 5(2) (recognizing rights
found in law, conventions, regulations or custom). See, e.g., General Comment 29,
supra note 85, 9 (exploring the circumstances under which a state may derogate
from the Convention); Human Rights Comm., 68th Sess., General Comment 28:
Equality of Rights Between Men and Women (Article 3), 9, U.N. Doc.
CCPR/C/21/Rev.1/Add.10 (Mar. 29, 2000) (discussing that there shall be no
derogation from the equal enjoyment by women of all fundamental human
rights).
87
General Comment 29, supra note 85, 13 (providing illustrative examples of
elements that in the Committees opinion cannot be made subject to lawful
derogation under article 4).
88
Id. 11.
89
Id. 12 (including crimes codified by the Rome Statute of the International
Criminal Court).
90
Id. 16 (providing, as an example, elements of the right to a fair trial).
91
See id. 10 nn.56.
92
See Id. 10 n.6.
93
See id. 11 ([T]he category of peremptory norms extends beyond the list
of nonderogable provisions as given in article 4, paragraph 2.); Human Rights
Comm., 52nd Sess., General Comment 24: Issues Relating to Reservations Made upon
Ratification or Accession to the Covenant or the Optional Protocols thereto, or in Relation
1208 U. Pa. J. Intl L. [Vol. 31:4

General Comment 29 addresses the overlap between the Civil
and Political Covenant and international humanitarian law. To
justify state derogations from the Covenant, Article 4 requires that
a public emergency threaten the life of a nation.
94
Such a situation
will most likely arise during armed conflict.
95
Once an armed
conflict exists, rules of international humanitarian law become
applicable and help . . . to prevent the abuse of a States emergency
powers.
96
In other words, as the Committee expressed in General
Comment 31, in situations of armed conflict, both the Covenant
and international humanitarian law apply and both spheres of
law are complementary, not mutually exclusive.
97
In General
Comment 28, for example, the HRC applies the Covenants
protections during armed conflict: it notes that women are

to Declarations under Article 41 of the Covenant, 8, U.N. Doc.
CCPR/C/21/Rev.1/Add.6 (Nov. 4, 1994) (discussing, albeit in the context of
invalid reservations, various provisions in the Covenant that represent
customary international law).
94
Civil and Political Covenant, supra note 22, art. 4(1).
95
See General Comment 29, supra note 85, 3 (If States parties consider
invoking article 4 in other situations than an armed conflict, they should carefully
consider the justification and why such a measure is necessary and legitimate in
the circumstances.).
96
Id.
97
Human Rights Comm., 80th Sess., General Comment 31: Nature of the General
Legal Obligation on States Parties to the Covenant, 11, U.N. Doc.
CCPR/C/21/Rev.1/Add.13 (May 26, 2004). The International Court of Justice
has also endorsed the principle of complementarity: the protection offered by
human rights conventions does not cease in case of armed conflict, save through
the effect of provisions for derogation of the kind to be found in Article 4 of the
[Civil and Political Covenant]. Legal Consequences of the Construction of a Wall
in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 136, 178 (July
9). See also Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion,
1996 I.C.J. 226, 240 (July 8) (alluding to the principle of complementarity). While
complementarity is the predominant view among commentators, both advisory
opinions are controversial as to their characterization of the relationship between
the two bodies of law. See Lori Fisler Damrosch & Bernard H. Oxman, Agora: ICJ
Advisory Opinion on Construction of a Wall in the Occupied Palestinian Territory, 99
AM. J. INTL L. 1, 56 (2005) (indicating the generality with which the decision was
decided and its lack of specificity regarding these two areas of law); Michael J.
Dennis, Application of Human Rights Treaties Extraterritorially in Times of Armed
Conflict and Military Occupation, 99 AM. J. INTL L. 119, 13337 (2005) (stating the
interplay between humanitarian and human rights law remains unclear); Terry
Gill, The Nuclear Weapons Advisory Opinion of the International Court of Justice and
the Fundamental Distinction Between the Jus ad Bellum and the Jus in Bello, 12
LEIDEN J. INTL L. 613, 61619 (1999) (analyzing the courts discussion regarding
the compatibility of nuclear weapons with Jus ad Bellum).

particularly vulnerable in such situations and suggests that State
parties take preventive measures under Article 3 to protect them.
98

To evaluate states claims of an emergency necessitating
derogation, the HRC deems itself competent to consider states
other international obligations.
99
It requests states, therefore, to
take into account the developments within international law as to
human rights standards applicable in emergency situations.
100

Therefore, while Article 4(2) provides a list of nonderogable rights
protected by the Civil and Political Covenant, if a state attempts to
avoid other Covenant obligations under the claim of a national
emergency, the Committee will look beyond the four corners of the
Covenant to determine whether the state has complied with all of
its international obligations.
101

2.1.2. The Covenants Explicit References to International Law
The Civil and Political Covenant explicitly refers to obligations
under international law in Articles 1 and 4.
102
In order for the HRC
to discuss fully the rights protected by those articles, therefore, the
Committee must address other international obligations relevant to
the protected right. In General Comment 12, discussing the right
of self-determination protected by Article 1, the Committee
referred to the Declaration on Principles of International Law
Concerning Friendly Relations and Co-operation among States in
Accordance with the Charter of the United Nations, adopted by the
General Assembly on 24 October 1970 (General Assembly

98
See General Comment 28, supra note 86, 8 (describing the obligations states
have toward women under Article 3 of Covenant).
99
General Comment 29 states:
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 partys other international obligations into account when it
considers whether the Covenant allows the State party to derogate from
specific provisions of the Covenant.
General Comment 29, supra note 85, 10.
100
Id.
101
Id. 13 (analyzing various other Covenant provisions not listed in Article
4(2) and concluding that each is protected by other areas of international law and
that consequently a State could never derogate from those provisions).
102
Civil and Political Covenant, supra note 22, arts. 1, 4.
1210 U. Pa. J. Intl L. [Vol. 31:4

resolution 2625 (XXV)).
103
Similarly, for Article 4, the HRC states
that the state cannot breach other international obligations,
whether based on treaty or general international law.
104

2.1.3. Looking to Other Instruments to Define Covenant
Provisions
In two of its General Comments, the HRC has looked to other
international instruments to clarify Covenant provisions. In
General Comment 18, the HRC sought to define
discrimination.
105
Noting that the Covenant provided no
definition, the HRC consulted the definitions of discrimination
under the International Convention on the Elimination of All
Forms of Racial Discrimination
106
and the Convention on the
Elimination of All Forms of Discrimination against Women.
107
The
Committee then discussed the purpose of the Civil and Political
Covenants prohibition of discrimination, and combined pieces of
the other conventions definitions to construct its own.
108

103
Human Rights Comm., 21st Sess., General Comment 12: The Right to Self-
Determination of Peoples (Article 1), 7, U.N. Doc. HRI/GEN/1/Rev.1 (Mar. 13,
1994). But see Wilson v. Australia, Decision, Human Rights Comm., 80th Sess.,
No. 1239/2004, 4.3, U.N. Doc. CCPR/C/80/D/1239/2004 (2004) (stating that an
individual cannot claim the status of a victim through Article 1).
104
105
Human Rights Comm., 37th Sess., General Comment 18: Non-discrimination,
6, U.N. Doc. HRI/GEN/1/Rev.1 (Nov. 10, 1989) [hereinafter General Comment
18].
106
See International Convention on the Elimination of All Forms of Racial
Discrimination, Dec. 21, 1965, 660 U.N.T.S. 195 [hereinafter Race Discrimination
Convention] (condemning racial discrimination and committing to take certain
actions to eliminate it).
107
General Comment 18 states:
The Committee notes that the Covenant neither defines the term
discrimination nor indicates what constitutes discrimination.
However, article 1 of the International Convention on the Elimination of
All Forms of Racial Discrimination provides [a definition for] the term
racial discrimination . . . . Similarly, article 1 of the Convention on the
Elimination of All Forms of Discrimination against Women provides [a
definition for] discrimination against women . . . .
General Comment 18, supra note 105, 6. See also Convention on the Elimination of
All Forms of Discrimination Against Women, Dec. 18, 1979, 1249 U.N.T.S. 13, 19
I.L.M. 33 (condemning discrimination against women, committing to eliminate
such discrimination, and enumerating certain actions to be taken).
108
See General Comment 18, supra note 105, 7 (defining discrimination).

In General Comment 21, the Committee considered humane
treatment of those deprived of their liberty.
109
Rather than craft its
own definition of specific protections offered by Article 10, the
HRC provided the general purpose of Article 10 and encouraged
states to look to other listed relevant United Nations standards.
110

2.1.4. Broad International Obligations
The Committee has twice used an article of the Civil and
Political Covenant as a vehicle to express a much broader view
about states international obligations. In General Comment 14
addressing the Article 6 right to life, the HRC described at length
the danger of nuclear weapons.
111
The Committee concluded that
the production, testing, possession, deployment and use of
nuclear weapons should be prohibited and recognized as crimes
against humanity and called upon all states, whether parties to
the Covenant or not, to rid the world of nuclear weapons.
112

In General Comment 17, the Committee addressed the specific
childrens rights protected by Article 24.
113
The HRC noted that
while the primary purpose of the article is to protect childrens
civil and political rights, states should also take positive actions to
address childrens economic, social, and cultural rights.
114

2.2. Implications for the Interpretation of International Humanitarian
Law
In various contexts, the HRC must consider other international
obligations. Whether insisting that no state may use Article 4(1) of
the Covenant to avoid other obligations under international law or
interpreting the explicit references in the Covenant to
international law, the HRC must be ready to evaluate alleged

109
See Human Rights Comm., 44th Sess., General Comment 21: Replaces General
Comment 9 Concerning Humane Treatment of Persons Deprived of Liberty (Article 10),
U.N. Doc. HRI/GEN/1/Rev.1 (Apr. 10, 1992) (considering humane treatment in
the context of Article 10).
110
Id. 4-5.
111
See Human Rights Comm., 23rd Sess., General Comment 14: Nuclear
Weapons and the Right to Life (Article 6), 37, U.N. Doc. HRI/GEN/1/Rev.1
(Nov. 9, 1984) (describing the threat of nuclear weapons).
112
Id. 6-7.
113
See Human Rights Comm., 35th Sess., General Comment 17: Rights of the
Child (Article 24), Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1 (Apr. 7,
1984).
114
Id. 3.
1212 U. Pa. J. Intl L. [Vol. 31:4

violations of the Covenant against the backdrop of states other
international obligations. The Committee has expressly recognized
this logic: 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 partys other
international obligations into account. . . .
115

Nowhere is this duty more evident and necessary than in
situations of armed conflict. As the Committee recognizes, it is in
situations of armed conflict that a state is most likely to derogate
rights protected by the Covenant.
116
When a state derogates such a
right during armed conflict, the Committee must consider not only
whether the right may be derogated under the explicit terms of the
Civil and Political Covenant, but also whether the state can
permissibly derogate the right under the rules and principles of
international humanitarian law, customary international law, and
other relevant obligations. If such a situation were to arisefor
example, if an individual alleged under the Optional Protocol that
a state had violated his or her rights under Article 4(1)the HRC
would be required to consider the entire gamut of the states
international obligations, including all the protections of
international humanitarian law.
117
Conceptually, therefore, the
HRC could be called upon to perform a detailed analysis of
international humanitarian law protections.

115
116
Id. 3.
117
See General Comment 31, supra note 97, 11 (While, in respect of certain
Covenant rights, more specific rules of international humanitarian law may be
specially relevant for the purposes of the interpretation of Covenant rights, both
spheres of law are complementary, not mutually exclusive.). While the HRCs
consideration of the overlap between humanitarian and human rights law may be
born of procedural necessity given Article 4s reference to international law, the
growing convergence of the two bodies of law is widely recognized. See, e.g.,
Cordula Droege, The Interplay Between International Humanitarian Law and
International Human Rights Law in Situations of Armed Conflict, 40 ISR. L. REV. 310,
310 (2007) (discussing historical developments leading to the increasing overlap of
the two bodies of law); Theodor Meron, The Humanization of Humanitarian Law, 94
AM. J. INTL L. 239, 26673 (2000) (describing the impact of human rights on the
development of humanitarian law and the growing convergence of the two
spheres); Michael Bothe, International Human Rights and Humanitarian Law by Rene
Provost, 98 AM. J. INTL L. 371, 383 (2004) (reviewing RENE PROVOST, INTERNATIONAL
HUMAN RIGHTS AND HUMANITARIAN LAW (2002)). The HRCs consideration of
humanitarian law, therefore, would be a natural step in this direction.

The secondary issue, however, is the form that such an analysis
would take. While the General Comments recognize that a states
various international obligations are complementary rather than
exclusive, they contain little by way of analysis of other
international obligations. General Comment 29 provides some
examples of how certain rights not listed in Article 4(2) may not be
derogated, but most examples simply state that the protected right
is a norm of general international law.
118
Such a statement is
instructive as to the level of protection offered by the provision,
but does not provide any analysis of international humanitarian
law. Therefore, if the Committee provides any detailed analysis of
international humanitarian law, it would most likely do so in an
individual communication under the Optional Protocol, rather
than a General Comment.
The Committees tendency to rest its Decisions and Views
within the language of the Covenant, as well as its reluctance to
consider or analyze other international instruments explicitly,
however, make it probable that the Committee would couch its
conclusion within the language of the Covenant. This likelihood
illustrates the inherent tension in the HRCs jurisprudence: The
Committee recognizes the Optional Protocols purpose as allowing
it to consider only alleged violations of substantive Covenant
rights, but some provisions of the Covenant inherently demand
that it scrutinize other international obligations.
119
The result,
therefore, would likely be that in its response to an individual
communication alleging a violation of Article 4, the Committee
would base its holding on a provision of the Civil and Political
Covenant, and not provide any actual analysis of the states
obligations under international humanitarian law. To reach such a
conclusion, the Committee should consider the states international
obligations, but even if it did, it would still probably frame its
analysis within the language of the Covenant.
For example, imagine an individual alleged a violation of
Article 4 of the Covenant based on a claim that the State party had,
in a situation of internal armed conflict, derogated the right to

118
See General Comment 29, supra note 85, 13 (listing examples of certain
rights that cannot be derogated).
119
Compare General Comment 24, supra note 93, 13 (describing the object and
purpose of the Optional Protocol), with General Comment 29, supra note 85, 10
(stating the necessity of considering other international obligations for purposes
of alleged Article 4 violations).
1214 U. Pa. J. Intl L. [Vol. 31:4

humane treatment protected by Article 10. Article 4(2) does not list
Article 10 as a nonderogable provision.
120
Yet Common Article 3 of
the Geneva Conventions prohibits humiliating and degrading
treatment.
121
Therefore, according to Article 4(1) and the HRCs
General Comments, the state could not invoke Article 4 to derogate
rights protected by other international obligations, which, in this
example, would be a right protected by Common Article 3.
Assuming the Committee found that there was a state of
emergency within the country that met the requirements of Article
4(1) (in itself a high standard to satisfy),
122
the Committee would
have to find that the state could not derogate Article 10 through
Article 4.
What form would the HRCs Decision and View take? It is
possible that the Committee would explicitly reference Common
Article 3, apply it to the facts alleged, and conclude that the State
party could not derogate Article 10 through Article 4. Such a

120
For the sake of this example, imagine that the Committee had not already
stated in General Comment 29 that Article 10 is nonderogable under general
international law. See General Comment 29, supra note 85, 13(a) (Although this
right, prescribed in article 10 of the Covenant, is not separately mentioned in the
list of nonderogable rights in article 4, paragraph 2, the Committee believes that
here the Covenant expresses a norm of general international law not subject to
derogation.).
121
See Geneva Convention for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field, art. 3, Aug. 12, 1949, 6 U.S.T.
3114, 75 U.N.T.S. 31:
[T]he following acts are and shall remain prohibited at any time and in
any place whatsoever with respect to [persons taking no active part in
the hostilities during an armed conflict not of international character
occurring in the territory of one of the High Contracting Parties]: . . . (c)
outrages upon personal dignity, in particular humiliating and degrading
treatment . . . .
Id.; Geneva Convention for the Amelioration of the Condition of Wounded, Sick
and Shipwrecked Members of Armed Forces at Sea, art. 3, Aug. 12, 1949, 6 U.S.T.
3217, 75 U.N.T.S. 85 (prohibiting, with the same language as that found in Geneva
Convention for the Amelioration of the Condition of the Wounded and Sick in
Armed Forces in the Field, any outrages upon personal dignity towards persons );
Third Geneva Convention, supra note 8, art. 3 (employing the same language as
Geneva Convention for the Amelioration of the Condition of the Wounded and
Sick in Armed Forces in the Field and Geneva Convention for the Amelioration of
the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at
Sea, to the same purpose); Fourth Geneva Convention, supra note 8, art. 3
(applying the same language again to prisoners of war).
122
See General Comment 29, supra note 85, 3 (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.).

holding would provide an informative analysis of international
humanitarian law. More likely, however, the Committee would
state nearly exactly what it did in General Comment 29 when
considering whether Article 10 could be derogated: [T]he
Committee believes here the Covenant expresses a norm of general
international law not subject to derogation.
123
Such a conclusory
statement, while contributing to the general recognition of
customary norms, does not provide much actual precedential
analysis of international humanitarian law.
3. CONCLUDING OBSERVATIONS
The HRC renders Concluding Observations based on country
reports it periodically receives from States parties, pursuant to
Article 40 of the Civil and Political Covenant.
124
Unlike the
individual communications, issues of international humanitarian
law frequently arise in the Concluding Observations. This
tendency may be because it is through the periodic reports that
State parties must justify states of emergency or situations of
human rights abuses. There are also a larger number of countries
that are signatories to the Covenant and thereby required to submit
periodic reports than countries that have ratified the Optional
Protocol, allowing individuals subject to their jurisdiction to
submit communications. Perhaps most significantly, however, it is
the Committees approach to evaluating compliance with the
Covenant that leads it to consider humanitarian law explicitly.
The Committee has interpreted its mandate with respect to the
country reports
125
as an opportunity to provide a birdseye view
of the human rights situation in the State party vis--vis its
compliance with the Covenant. This approach permits the
Committee to reach outside the Covenant in assessing State
parties implementation and compliance. The Concluding
Observations, therefore, offer the Committees most extensive and
explicit consideration of the relation between the Civil and Political
Covenant and the protections offered by international

123
Id. 13(a).
124
See Civil and Political Covenant, supra note 22, art. 40 (requiring States
parties to submit reports and authorizing the Human Rights Committee to render
observations).
125
The Committee shall study the reports submitted by the States
Parties. . . . It shall transmit its reports, and such general comments as it may
consider appropriate, to the States Parties. Id.
1216 U. Pa. J. Intl L. [Vol. 31:4

humanitarian law. This Part considers the HRCs approach to
reviewing country reports, assesses its resulting treatment of
humanitarian law, and finds that while the Committee recognizes
the applicability of humanitarian law, its Concluding Observations
offer little substantive analysis of the regime.
3.1. Contextualizing the Covenant: The HRCs Approach to Assessing
Periodic Reports
The Concluding Observations reveal the Committees
willingness to look beyond the Covenant to capture a fuller picture
of the state of human rights in the State party. The Committee thus
often refers generally to other human rights instruments, norms,
and standards.
126
It also refers specifically to other international

126
See Human Rights Comm., 89th Sess., Concluding Observations of the
Human Rights Comm.: Madagascar, 19, U.N. Doc. CCPR/C/MDG/CO/3 (May
11, 2007) (The State party should define torture in its legislation, taking into
account internationally established norms. . . .); Human Rights Comm., 83d Sess.,
Concluding Observations of the Human Rights Comm.: Kenya, 3, U.N. Doc.
CCPR/CO/83/KEN (Apr. 29, 2005) (The Committee welcomes the fact that the
State partys new draft constitution includes a proposed Bill of Rights that is
inspired by international human rights standards); Human Rights Comm., 79th
Sess., Concluding Observation of the Human Rights Comm.: Latvia, 4, U.N. Doc.
CCPR/CO/79/LVA (Dec. 1, 2003) (noting court rulings removing from the
national legal system norms conflicting with international human rights
standards); Human Rights Comm., 72d Sess., Concluding Observations of the
Human Rights Comm.: Guatemala, 15, U.N. Doc. CCPR/CO/72/GTM (Aug. 27,
2001) (noting that the State party should take the appropriate measures to
comply with the provisions of international instruments on child labor); Human
Rights Comm., 71st Sess., Concluding Observations of the Human Rights Comm.:
Venezuela, 15, U.N. Doc. CCPR/CO/71/VEN (Apr. 26, 2001) (All law
enforcement officials should be thoroughly trained in international human rights
standards, particularly those contained in [arts. 6, 7, and 10 of the] Covenant);
Human Rights Comm., 68th Sess., Concluding Observations of the Human Rights
Comm.: Guyana, 10, U.N. Doc. CCPR/C/79/Add.121 (Apr. 25, 2000) (The
Committee also welcomes frequent references to provisions of international
human rights instruments by the courts); Human Rights Comm., 60th Sess.,
Concluding Observations of the Human Rights Comm.: India, 6, U.N. Doc.
CCPR/C/79/Add.81 (Aug. 4, 1997) (welcoming frequent references to
provisions of international human rights instruments by national courts);
Comm.: Sri Lanka, 13, U.N. Doc. CCPR/C/79/Add.56 (July 27, 1995)
(emphasizing that obligations assumed by the State party under various
international instruments must be respected even in times of emergency);
Human Rights Comm., Concluding Observations of the Human Rights Comm.: Iceland,
6, U.N. Doc. CCPR/C/79/Add.26 (Nov. 3, 1993) (noting with concern that
Icelands constitution lacks provisions to protect all fundamental human rights
as recognized in the numerous international human rights treaties, in particular in
the [Civil and Political Covenant]); Human Rights Comm., 48th Sess., Concluding

instruments, particularly, though not exclusively, as they relate to
the application of Covenant rights.
127
Such references range from
mere mention
128
to use of the document as support in making a
recommendation
129
to the intimation that compliance with the cited

Observations of the Human Rights Comm.: Hungary, 5, U.N. Doc.
CCPR/C/79/Add.22 (Aug. 3, 1993) (The Committee . . . recognizes that much
remains to be done, especially in the fields of education and training to better
familiarize judges, practicing lawyers, law-enforcement officials, and the public at
large with the rights enshrined in the Covenant.).
127
See, e.g., Human Rights Comm., 88th Sess., Concluding Observations of the
Human Rights Comm.: Honduras, 3, U.N. Doc. CCPR/C/HND/CO/1 (Dec. 13,
2006) (welcoming State partys ratification of the Rome Statute and accession to
the Race Discrimination Convention, the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and other
treaties); Human Rights Comm., 64th Sess., Concluding Observations of the Human
Rights Comm.: Iceland, 6, 8, U.N. Doc. CCPR/C/79/Add.98 (Nov. 6, 1998)
(noting that domestic legislation prefers the European Convention over the
ICCPR though the latter protects more rights).
128
These references often come in the form of the Committee welcoming the
State partys accession to or ratification of a treaty or noting attempts to enact
domestic legislation in line with the State partys international obligations. See,
e.g., Human Rights Comm., 87th Sess., Concluding Observations of the Human Rights
Comm.: Kosovo (Serbia), 7, U.N. Doc. CCPR/C/UNK/CO/1 (Aug. 14, 2006)
(noting incorporation into domestic law of crimes as defined in the Rome Statute
and the CAT); Human Rights Comm., 85th Sess., Concluding Observations of the
Human Rights Comm.: Paraguay, 4, U.N. Doc. CCPR/C/PRY/CO/2 (Apr. 24,
2006) (welcoming ratification of CAT, the Rome Statute, and other international
instruments); Human Rights Comm., 65th Sess., Concluding Observations of the
Human Rights Comm.: Costa Rica, 21, U.N. Doc. CCPR/C/79/Add.107 (Apr. 8,
1999) (noting domestic legislation to implement the Race Discrimination
Convention and ILO Convention No. 169); Human Rights Comm., 64th Sess.,
Concluding Observations of the Human Rights Comm.: Austria, 7, U.N. Doc.
CCPR/C/79/Add.103 (Nov. 19, 1998) (noting that the European Convention has
been incorporated into the Austrian Constitution).
129
Human Rights Comm.: Spain, 13, U.N. Doc. CCPR/C/ESP/CO/5 (Jan. 5, 2009)
(recommending that State party speed up the process of adopting a national
mechanism for the prevention of torture in accordance with the Optional Protocol
to the [CAT]); Human Rights Comm., 91st Sess., Concluding Observations of the
Human Rights Comm.: Georgia, 10, U.N. Doc. CCPR/C/GEO/CO/3 (Nov. 15,
2007) (recommending establishment of a national mechanism for torture
prevention per the Optional Protocol to the CAT); Human Rights Comm., 87th
Sess., Concluding Observations of the Human Rights Comm.: Central African Republic,
13, U.N. Doc. CCPR/C/CAF/CO/2 (July 27, 2006) (relying on the Rome
Statute, supra note 11, in urging State party not to extend the death penalty to new
crimes); Human Rights Comm., 84th Sess., Concluding Observations of the Human
Rights Comm.: Yemen, 7, U.N. Doc. CCPR/CO/84/YEM, (Aug. 9, 2005) (The
State party should work towards establishing a national human rights institution
in accordance with the Principles relating to the status of national institutions for
the promotion and protection of human rights); Human Rights Comm., 60th
Sess., Concluding Observations of the Human Rights Comm.: France, 16, U.N. Doc.
1218 U. Pa. J. Intl L. [Vol. 31:4

instrument is a necessary component of fulfilling the State partys
substantive obligations under the Civil and Political Covenant.
130

The Committee has also referenced international agreements to
recommend that states become parties to them, with a view to
fulfilling their Covenant obligations.
131

The Committees reliance on several U.N. non-treaty
documents is particularly pronounced and noteworthy for the
extent to which the Committee has connected compliance with
their provisions to fulfillment of a State partys Covenant
obligations. In thirty-eight Concluding Observations,
132
the

CCPR/C/79/Add.80 (Aug. 4, 1997) (The Committee urges the State party to
introduce law enforcement training along the lines suggested in the United
Nations training manual for law enforcement officers.).
130
See Human Rights Comm., 71st Sess., Concluding Observations of the Human
Rights Comm.: Dominican Republic, 15, U.N. Doc. CCPR/CO/71/DOM (Apr. 26,
2001) (To comply with article 10 of the Covenant, the State party needs to
establish as soon as possible a specialized prison guard service . . . that meets the
[Standard Minimum Rules] . . . .); Human Rights Comm., 57th Sess., Concluding
Observations of the Human Rights Comm.: Nigeria, 19, U.N. Doc.
CCPR/C/79/Add.65 (July 24, 1996) (The Committee emphasizes that it is
incompatible with the Covenant to hold prisoners under conditions which do not
meet the basic guarantees provided in article 10 of the Covenant as well as in the
[Standard Minimum Rules]).
131
Human Rights Comm.: Congo, 6, U.N. Doc. CCPR/C/COD/CO/3 (Apr. 26, 2006)
(The Committee recommends that the State party should endorse the draft law
on the implementation of the Rome Statute, and ratify and enforce the Agreement
on the Privileges and Immunities of the International Criminal Court.); Human
Rights Comm., 55th Sess., Concluding Observations of the Human Rights Comm.:
Estonia, 35, U.N. Doc. CCPR/C/79/Add.59 (Nov. 9, 1995) (suggesting that
Estonia accede to the Refugees Convention, in connection with bringing its
treatment of asylum-seekers into compliance with the Covenant); Human Rights
Comm., 49th Sess., Concluding Observations of the Human Rights Comm.: Japan, 16,
U.N. Doc. CCPR/C/79/Add.28 (Nov. 5, 1993) (recommending that Japan become
party to the CAT).
132
See, e.g., Human Rights Comm., 87th Sess., Concluding observations of the
Human Rights Comm.: Central African Republic, 15, U.N. Doc.
CCPR/C/CAF/CO/2 (July 27, 2006) (The State party should ensure that the
conditions of detention in the countrys prisons are compatible with the Standard
Minimum Rules); Human Rights Comm., 86th Sess., Concluding observations of the
Human Rights Comm.: Democratic Republic of the Congo, 20, U.N. Doc.
CCPR/C/COD/CO/3 (Apr. 26, 2006) (noting that prison conditions threaten the
protections offered by Article 10 and recommending State party ensure that
conditions are compatible with the Standard Minimum Rules); Human Rights
Comm., 82d Sess., Concluding Observations of the Human Rights Comm.: Poland, 12,
U.N. Doc. CCPR/CO/82/POL (Dec. 2, 2004) (encouraging the state party to
consider alternative forms of punishment in order to ensure compliance with
Article 10); Human Rights Comm., 61st Sess., Concluding Observations of the Human
Rights Comm.: Jamaica, 13, U.N. Doc. CCPR/C/79/Add.83 (Nov. 19, 1997)

Committee refers to or relies upon the U.N. Standard Minimum
Rules for the Treatment of Prisoners.
133
The HRC has situated the
Standard Minimum Rules within the protections offered by Article
10 such that it is likely to find that prison conditions failing to meet
the Standard Minimum Rules violate that provision.
134
The
Committee has similarly linked the U.N. Basic Principles on the
Use of Force and Firearms by Law Enforcement Officials (Basic
Principles)
135
to the protections offered by Articles 6, 7, and 10.
136

(noting that some prison conditions, such as lack of sanitation, lighting, adequate
diet, adequate staff training, and lack of visitation of prisoners, are incompatible
with the Minimum Standard Rules and Article 10); Human Rights Comm., 56th
Sess., Concluding Observations of the Human Rights Comm.: Zambia, 13, 25, U.N.
Doc. CCPR/C/79/Add.62 (Apr. 3, 1996) (suggesting that urgent steps be taken to
reduce the number of prisoners in order to comply with the Standard Minimum
Rules and Article 10); Human Rights Comm., 50th Sess., Concluding Observations of
the Human Rights Comm.: Costa Rica, 11, U.N. Doc. CCPR/C/79/Add.31 (Apr.
18, 1994) (recommending that measures be taken to strengthen the rights of
detainees).
133
See Standard Minimum Rules, supra note 55 (providing a minimum
standard of care).
134
See., e.g., Human Rights Comm., 71st Sess., Concluding Observations of the
Human Rights Comm.: Dominican Republic, 15, U.N. Doc. CCPR/CO/71/DOM
(Apr. 26, 2001) (To comply with article 10 of the Covenant, the State party needs
to establish as soon as possible a specialized prison guard service . . . that meets
the [Standard Minimum Rules]); Human Rights Comm., 66th Sess., Concluding
Observations of the Human Rights Comm.: Poland, 16, U.N. Doc.
CCPR/C/79/Add.110 (July 29, 1999) (The State party should effectively improve
facilities for prisoners so as to comply with the [Standard Minimum Rules]);
Comm.: Nigeria, 19, U.N. Doc. CCPR/C/79/Add.65 (July 24, 1996) (noting that
the poor prison conditions are incompatible with Article 10 and the [Standard
Minimum Rules]).
135
See Basic Principles, supra note 52.
136
Human Rights Comm.: Honduras, 10, U.N. Doc. CCPR/C/HND/CO/1 (Dec. 13,
2006) (Another cause for concern is the failure to apply in practice the Basic
Principles on the use of force and firearms by law enforcement officials); Human
Estonia, 12, U.N. Doc. CCPR/CO/77/EST (Apr. 15, 2003) (inviting State party to
amend legislation to ensure that the use of firearms is restricted by the principles
of necessity and proportionality as reflected in paragraphs 9 and 16 of the [Basic
Principles] (articles 7 and 10 of the Covenant)); Human Rights Comm., 53d Sess.,
Concluding Observations of the Human Rights Comm.: United States, 32, U.N. Doc.
CCPR/C/79/Add.50 (Apr. 7, 1995) (The Committee urges that rules and
regulations governing the use of weapons by the police and security forces be in
full conformity with the United Nations Basic Principles); Human Rights
Comm., 51st Sess., Concluding Observations of the Human Rights Comm.: Cyprus,
18, U.N. Doc. CCPR/C/79/Add.39 (Aug. 3, 1994) (noting police instruction
should be in conformity with the Covenant and the Basic Principles).
1220 U. Pa. J. Intl L. [Vol. 31:4

Less frequently, the HRC references other U.N. documents.
137
The
Committee thus uses its Concluding Observations to reach outside
the Covenant both to offer recommendations and to survey the
Covenants interaction with other human rights instruments.
138

As in its Decisions and Views, the Committee has explicitly
addressed the relationship between the Civil and Political
Covenant and the European Convention
139
in its Concluding
Observations.
140
Unlike the Decisions and Views, however, the

137
See., e.g., Human Rights Comm., 95th Sess., Concluding Observations of the
Human Rights Comm.: Sweden, 14, U.N. Doc. CCPR/C/SWE/CO/6 (May 7, 2009)
(The State party should provide adequate training to prison officials on suicide
prevention and assure observance of the Standard Minimum Rules for the
Treatment of Prisoners and the Basic Principles for the Treatment of Prisoners);
Comm.: Czech Republic, 13, U.N. Doc. CCPR/C/CZE/CO/2 (Sept. 9, 2008)
(referencing Principles for the Protection of Persons with Mental Illness and the
Improvement of Mental Health Care); Human Rights Comm., 92
nd
Sess.,
Concluding Observations of the Human Rights Comm.: The Former Yugoslav Republic of
Macedonia, 15, U.N. Doc. CCPR/C/MKD/CO/2 (Apr. 17, 2008) (The State
party should find durable solutions for all [internally displaced persons] in
consultation with the remaining displaced persons and in accordance with the
Guiding Principles on Internal Displacement); Human Rights Comm., 64
th
Sess.,
Concluding Observations of the Human Rights Comm.: Libyan Arab Jamahiriya, 14,
U.N. Doc. CCPR/C/79/Add.101 (Nov. 6, 1998) (The Committee recommends
that measures be taken to ensure full compliance with Article 14 of the Covenant
as well as the United Nations Basic Principles on the Independence of the
Judiciary and the Basic Principles on the Roles of Lawyers); Human Rights
Comm., 54
th
Sess., Concluding observations of the Human Rights Comm.: Russian
Federation, 35-36, U.N. Doc. CCPR/C/79/Add.54 (July 26, 1995)
(recommending adoption of new rules to comply with the United Nations Body of
Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment and urging prompt enactment of legislation incorporating its Basic
Principles on the Independence of the Judiciary).
138
A statement made in response to a report from Uzbekistan typifies the
Committees approach: the HRC notes with interest a Supreme Court decision
providing that domestic anti-torture laws must be interpreted in light of the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, but expresses concern at the apparently narrow definition of
torture in the State partys Criminal Code. Human Rights Comm., 83d Sess.,
Concluding Observations of the Human Rights Comm.: Uzbekistan, 9, U.N. Doc.
CCPR/CO/83/UZB (Apr. 26, 2005).
139
See European Convention, supra note 52.
140
See, e.g., Human Rights Comm., 91st Sess., Concluding Observations of the
Human Rights Comm.: Austria, 6, U.N. Doc. CCPR/C/AUT/CO/4 (Oct. 30, 2007)
(urging the State party to ensure that judges and law enforcement officers receive
adequate training to apply and interpret domestic law in light of the Covenant);
Human Rights Comm., 83d Sess., Concluding Observations of the Human Rights
Comm.: Iceland, 9, U.N. Doc. CCPR/CO/83/ISL (Apr. 25, 2005) (The Committee
encourages the State party to ensure that all rights protected under the Covenant

Concluding Observations are concerned with the aggregate
protections offered by the respective treaty regimes, not with the
similarity of particular claims.
141
The Committee has made clear
that the Civil and Political Covenant offers a wider range of
protection than the European Convention.
142

In several Concluding Observations, the Committee has also
referenced pronouncements by other international bodies in
assessing compliance with the Covenant. In response to a report
from Nicaragua, the Committee cited Articles 25 and 27 of the

are given effect in Icelandic law); Human Rights Comm., 64th Sess., Concluding
Observations of the Human Rights Comm.: Austria, 7, U.N. Doc.
CCPR/C/79/Add.103 (Nov. 19, 1998) (recommending that the State party ensure
that all rights protected under the Covenant are given effect); Human Rights
Comm., 64th Sess., Concluding Observations of the Human Rights Comm.: Iceland, 8,
U.N. Doc. CCPR/C/79/Add.98 (Nov. 6, 1998) (encouraging the State party to
give effect to all rights protected under the Covenant); Human Rights Comm.,
58th Sess., Concluding Observations of the Human Rights Comm.: Denmark, 11, U.N.
Doc. CCPR/C/79/Add.68 (Nov. 18, 1996) (expressing concern that the Covenant
has not been given the status of domestic legislation); Human Rights Comm., 47th
Sess., Concluding Observations of the Human Rights Comm.: Belgium, 6, U.N. Doc.
CCPR/C/79/Add.3 (Sept. 25, 1992) (The Committee recommends to the State
party more adequately to reflect in internal administrative practice the provisions
of the Covenant which are not reflected in the European Convention for the
Protection of Human Rights and Fundamental Freedoms).
141
Where an individual brings claims before both the European Court of
Human Rights and the HRC under the Optional Protocol, the Committee must
determine that the allegedly violated Covenant right is sufficiently distinct from
the right protected by the European Convention for the communication to be
admissible. See Section 1.1.1, supra (discussing the Committees approach to the
question of overlap in its Decisions and Views).
142
Human Rights Comm.: Sweden, 5, U.N. Doc. CCPR/C/SWE/CO/6 (May 7, 2009)
([T]he Covenant may accord additional protection beyond what is accorded
under the European Convention on Human Rights); Human Rights Comm., 83d
Sess., Concluding Observations of the Human Rights Comm.: Iceland, 9, U.N. Doc.
CCPR/CO/83/ISL (Apr. 25, 2005) (noting that the European Convention has been
incorporated into domestic law, but that such domestic incorporation does not
satisfy Icelands Covenant obligations because several Covenant provisions,
including articles 4, 12, 22, 25 and 27, go beyond the scope of the ECHR); Human
Iceland, 8, U.N. Doc. CCPR/C/79/Add.98 (Nov. 6, 1998) ([T]he Committee
emphasizes that a number of the articles of the Covenant, including articles 3, 4,
12, 22, 24, 25, 26, and 27, go beyond the provisions of the European Convention.);
Comm.: Malta, 9, U.N. Doc. CCPR/C/79/Add.29 (Nov. 5, 1993) (expressing
concern at the apparent preference accorded to the European Convention in
domestic law and noting that the Civil and Political Covenant guarantees a
number of human rights not protected under the European Convention).
1222 U. Pa. J. Intl L. [Vol. 31:4

Covenant in observing
143
that the State party had not fully
complied with a ruling by the Inter-American Court of Human
Rights regarding indigenous communities participation in
elections.
144
In urging Macedonia to renew investigation of its
involvement in the rendition of Khalid Al-Masri, the Committee
referenced the concerns expressed by the Committee on the
Elimination of Racial Discrimination, among other bodies.
145
The
Committee similarly cited a decision of the European Court of
Human Rights in criticizing UK legislation that prohibited
convicted prisoners from voting.
146
Compared to the Committees
reliance on treaties and other international instruments, however,
such references are rare. The HRC apparently references
pronouncements of other international bodies only to support a
finding that a State party has deviated from its substantive
obligations under the Covenant.
3.2. Treatment of International Humanitarian Law
The Committees approach to evaluating Covenant compliance
has led it to consider international humanitarian law and armed
conflict more frequently in its Concluding Observations than in its
General Comments or individual decisions. The Committee
repeatedly recognizes the adverse impact of armed conflict on the
application of Covenant rights.
147
It has made clear, however, that

143
Human Rights Comm.: Nicaragua 20, U.N. Doc. CCPR/C/NIC/CO/3 (Dec. 12,
2008) (noting that Nicaragua should meet the targets laid down in [the
decision]).
144
See Yatama v. Nicaragua, case 12.388, Inter-Am. C.H.R. Report No. 125/01
(2005) (ruling that Nicaragua had violated equal suffrage).
145
See Human Rights Comm., 92d Sess., Concluding Observations of the Comm.
on the Rights of the Child: The Former Yugoslav Republic of Macedonia, 14, U.N. Doc.
CCPR/C/MKD/CO/2 (Apr. 17, 2008) (noting concerns of the European
Parliaments Temporary Committee on the Alleged Use of European Countries by
the CIA for the Transport and Illegal Detention of Prisoners, the Council of
Europe and citing Articles 2, 7, 9, 10 of the Civil and Political Covenant).
146
See Human Rights Comm., 93d Sess., Concluding Observations of the Comm.
on the Rights of the Child: United Kingdom, 28, U.N. Doc. CCPR/C/GBR/CO/6
(July 30, 2008) (citing Articles 10 and 25 of the Covenant); Saadi v. Italy, App. No.
37201/06, Eur. Ct. H.R. 1, 35 (2008) (criticizing the United Kingdom for its
application of principles of Article 3).
147
See, e.g., Human Rights Comm., 61st Sess., Concluding Observations of the
Comm. on the Rights of the Child: The Sudan, 3, U.N. Doc. CCPR/C/79/Add.85
(Nov. 19, 1997) ([T]he armed conflict is an obstacle to the full implementation of
the Covenant.); Human Rights Comm., 54th Sess., Concluding Observations of the

under Articles 2(1) and 4, Covenant protections apply regardless of
the applicability of the rules of international humanitarian law and
that a State party is responsible for the actions of its agents, even
beyond its territory.
148
The Committee also scrutinizes states
claims to a state of emergency and resulting derogations from
Covenant protections.
149
This scrutiny, however, is typically

Comm. on the Rights of the Child: Sri Lanka, 3, U.N. Doc. CCPR/C/79/Add.56
(July 27, 1995) (noting that armed conflict adversely affect[s] the application of
the Covenant); Human Rights Comm., 51st Sess., Concluding Observations of the
Comm. on the Rights of the Child: Azerbaijan, 3, U.N. Doc. CCPR/C/79/Add.38
(Aug. 3, 1994) ([T]he situation of armed conflict with a neighboring country and
the recurrent internal unrest are affecting the exercise of human rights in
Azerbaijan).
148
See Human Rights Comm., Concluding Observations of the Comm. on the
Rights of the Child: Belgium, 6, U.N. Doc. CCPR/CO/81/BEL (Aug. 12, 2004)
([T]he Covenant automatically applies when [the State party] exercises power or
effective control over a person outside its territory, regardless of the
circumstances in which such power or effective control was obtained.); Human
Rights Comm., Concluding Observations of the Comm. on the Rights of the Child:
Germany, 11, U.N. Doc. CCPR/CO/80/DEU (May 4, 2004) ([The Committee]
reiterates that the applicability of the regime of international humanitarian law
does not preclude accountability of State parties under [Article 2(i)] of the
Covenant.); Human Rights Comm., Concluding Observations of the Comm. on the
Rights of the Child: Israel, 11, U.N. Doc. CCPR/CO/78/ISR (Aug. 12, 2003) (Nor
does the applicability of the regime of international humanitarian law preclude
accountability of State parties under [Article 2(i)] of the Covenant.); Human
Rights Comm., Concluding Observations of the Comm. on the Rights of the Child: Israel,
10, U.N. Doc. CCPR/C/79/Add.93 (Aug. 18, 1998) ([The Committee]
emphasizes that the applicability of rules of humanitarian law does not by itself
impede the application of the Covenant or the accountability of the State under
[Article 2(i)].).
149
E.g., Human Rights Comm., 81st Sess., Concluding Observations of the
Comm. on the Rights of the Child: Serbia and Montenegro, 13, U.N. Doc.
CCPR/CO/81/SEMO (Aug. 12, 2004) (expressing concern over the derogations
taken during a state of emergency); Human Rights Comm., 88th Sess., Concluding
Observations of the Comm. on the Rights of the Child: Israel, 12, U.N. Doc.
CCPR/CO/78/ISR (Aug. 21, 2003) (expressing concern about the sweeping
nature of measures during the state of emergency and finding that they
derogated from Covenant protections more extensively than what in the
Committees view is permissible pursuant to article 4); Human Rights Comm.,
72d Sess., Concluding Observations of the Comm. on the Rights of the Child: Guatemala,
11, U.N. Doc. CCPR/CO/72/GTM (Aug. 27, 2001) (expressing concern over the
wide variety of possible states of emergency listed in the Constitution); Human
Rights Comm., 71st Sess., Concluding Observations of the Comm. on the Rights of the
Child: Croatia, 9, U.N. Doc. CCPR/CO/71/HRV (Apr. 30, 2001) (expressing
concern that a constitutional provision is incompatible with Article 4 of the
Covenant); Human Rights Comm., 63d Sess., Concluding Observations of the Comm.
on the Rights of the Child: Israel, 11, U.N. Doc. CCPR/C/79/Add.93 (Aug. 18,
1998) (recommending the Government review the necessity for the continued
renewal of the state of emergency with a view to limiting as far as possible its
1224 U. Pa. J. Intl L. [Vol. 31:4

limited to a pronouncement that, for example, emergency powers
or derogations permitted by domestic law are too broad or not
in conformity with Article 4.
150
Though it often refers to its
General Comment 29 in this context, the HRC has not analyzed
derogations in light of other international obligations, as intimated
in that Comment and described above.
151

In various Concluding Observations, the Committee ties
Covenant provisions to the regime of international humanitarian
law. For example, in response to the Central African Republics
report, the Committee stated: The Committee notes with concern
that, to date, the authorities have not carried out any exhaustive
and independent appraisal of serious violations of human rights
and international humanitarian law in the Central African
Republic and that the victims have received no reparations (arts. 2,
6 and 7).
152
In other words, the Committee placed serious
violations of human rights and international humanitarian law
into the protections offered by Articles 2, 6, and 7 of the Civil and
Political Covenant. In the Sudan, the Committee noted
widespread serious human rights violations in the context of
armed conflict, and tied the violations to Articles 2, 3, 6, 7, and
12.
153
The Committee has similarly linked Serbias failure to fully
cooperate with the ICTY in investigating and prosecuting violators
of international humanitarian law with Article 2 of the Covenant.
154

scope and territorial applicability and the associated derogation of rights);
Human Rights Comm., Comments of the Human Rights Comm.: Ireland, 11, U.N.
Doc. CCPR/C/79/Add.21 (Aug. 3, 1993) (stating that the continued existence of a
special court established pursuant to emergency powers legislation is not
justified in the present circumstances and that such measures are of a character
that normally fall to be notified under article 4 of the Covenant, which the State
party had not done).
150
Human Rights Comm., 46th Sess., Concluding Observations of the Human
Rights Comm.: United Republic of Tanzania, 7, U.N. Doc. CCPR/C/79/Add.12
(Dec. 28, 1992).
151
See supra Section 2.2 (discussing how the HRC has not analyzed
derogations in light of other international obligations).
152
Rights Comm.: Central African Republic, 8, U.N. Doc. CCPR/C/CAF/CO/2 (Jul.
27, 2006) (explaining how the authorities have not conducted any appraisals).
153
Human Rights Comm.: The Sudan, supra note 147, 9 (noting the widespread
serious human rights violations).
154
See Human Rights Comm., Concluding Observations of the Comm. on the
Rights of the Child: Serbia and Montenegro, supra note 149, 11:

Considering a report from Belgium, the Committee tied
Articles 2, 5, 6, 7, 16, and 26 of the Covenant to serious violations
of international humanitarian law and conduct contrary to
human rights.
155
Specifically, the Committee expressed its
concern with the repeal of a 1993 act that provided a legal remedy
for breaches of international humanitarian law.
156
The HRCs
citation to Articles 2, 5, 16, and 26 suggests that the remedy also
facilitated substantive Covenant rights, such as Article 2s
guarantee of an effective remedy for violations of rights or
freedoms as herein recognized.
157
The implication is that the
protections of international humanitarian law are also to be found
within the various provisions of the Covenant. The Committee
similarly found credible and uncontested information that the
United States was secretly detaining people in violation of rights
protected by Articles 7 and 9.
158
It stated that the United States
should grant the International Committee of the Red Cross
prompt access to any person detained in connection with an
armed conflict.
159

In several Concluding Observations, the Committee notes as
relevant the establishment of domestic mechanisms relating to
160
Considering a report from El

The Committee notes the State partys public statements emphasizing its
commitment to cooperate with the International Criminal Tribunal for
the Former Yugoslavia (ICTY) in order to ensure that all persons
suspected of grave human rights violations, including war crimes and
crimes against humanity, are brought to trial. However, it remains
concerned at the State partys repeated failure to fully cooperate with
ICTY, including with regard to the arrest of indictees (art. 2).
Id.
155
Human Rights Comm., 81st Sess., Concluding Observations of the Human
Rights Comm.: Belgium, supra note 148, 9-10.
156
See id. 9 (stating that the State should guarantee the victims right to an
effective remedy). See generally Luc Reydams, Belgium Reneges on Universality: The
August 2003 Act on Grave Breaches of International Humanitarian Law, 1 J. INTL CRIM.
JUST. 5, 679 passim (2003) (describing the law and the changes brought on by the
2003 amendments).
157
Civil and Political Covenant, supra note 22, art. 2(3).
158
Human Rights Comm.: United States of America, 12, U.N. Doc.
CCPR/C/USA/CO/3/Rev.1 (Dec. 18, 2006) (urging the United States to cease its
practice of secret detention).
159
Id.
160
See e.g., Human Rights Comm., 84th Sess., Concluding Observations of the
Human Rights Comm.: Syrian Arab Republic, 5, U.N. Doc. CCPR/CO/84/SYR
1226 U. Pa. J. Intl L. [Vol. 31:4

Salvador, the Committee expressed its concern that police
recruitment procedures do not bar those who might have
committed violations of human rights or humanitarian law.
161

Such references further reflect the Committees understanding that
the rights protected by the Civil and Political Covenant are closely
linked to the protections of international humanitarian law.
On two occasions, the Committee has invoked the Geneva
Conventions.
162
The Committee stated that the Hamdan v.
Rumsfeld
163
decision establishing the applicability of Common
Article 3 of the Geneva Conventions, reflected fundamental
rights guaranteed by the Covenant in any armed conflict.
164
The
Committee subsequently noted that the protections of a regularly
constituted court offered by the decision remain to be
implemented, pursuant to Article 14 of the Covenant.
165
In other
words, while the Committee did not explicitly tie Common Article
3 to articles of the Civil and Political Covenant, it expressed its
position that the Civil and Political Covenant protects all Common
Article 3 protections. The Committees relation of the fair trial
protection of Common Article 3 to the similar protection of Article
14 of the Covenant implies that the various protections of Common

(Aug. 9, 2005) (welcoming the establishment of the National Committee for
International Humanitarian Law); Human Rights Comm., 80th Sess., Concluding
Observations of the Human Rights Comm.: Colombia, 4, U.N. Doc.
CCPR/CO/80/COL (May 26, 2004) (noting the establishment of a human rights
and international humanitarian law unit in the Ministry of External Relations);
Human Rights Comm., 61st Sess., Concluding Observations of the Human Rights
Comm.: Senegal, 6, U.N. Doc. CCPR/C/79/Add.82 (Nov. 19, 1997) (noting the
establishment of domestic mechanisms relating to international humanitarian
law).
161
Rights Comm.: El Salvador, 11, U.N. Doc. CCPR/CO/78/SLV (Aug. 22, 2003).
162
In one other instance, the Committee mentioned the Geneva Conventions,
but only to commend Colombia for ratifying the Additional Protocol II to the
Geneva Conventions. See Human Rights Comm., Concluding Observations of the
Human Rights Comm.: Colombia, 5, U.N. Doc. CCPR/C/79/Add.76 (May 3, 1997)
(The Committee welcomes the recent establishment of an office of the High
Commissioner/Centre for Human Rights in Colombia, as well as the ratification
by Colombia of the Additional Protocol II to the Geneva Conventions of 12
August 1949, and relating to the Protection of Victims of Non-International
Armed Conflicts.).
163
Hamdan v. Rumsfeld, 548 U.S. 557 (2006).
164
Rights Comm.: United States of America, supra note 158, 5.
165
See id. 20 (noting that the Hamdan v. Rumsfeld decision has not yet been
implemented).

Article 3 could be similarly placed within relevant Covenant
protections. In an early Concluding Observation, the HRC
encouraged Croatia to hold prisoners in accordance with the
Geneva Conventions and the Covenant,
166
but did not specifically
link the two treaties.
Beyond tying provisions of the Civil and Political Covenant to
international humanitarian law, the Committee has emphasized
that states must investigate and prosecute persons accused of
having committed serious violations of international humanitarian
law, crimes against humanity, or war crimes.
167
The Committee
frames this duty under Articles 2, 6, and 7 of the Covenant.
168
Like

166
Human Rights Comm., 46th Sess., Comments of the Human Rights Comm.:
Croatia, 9, U.N. Doc. CCPR/C/79/Add.15 (Dec. 28, 1992).
167
Human Rights Comm.: Spain, 9, U.N. Doc. CCPR/C/ESP/CO/5 (Jan. 5, 2009)
(suggesting that State parties take steps to ensure the non-applicability of a
statute of limitations on crimes against humanity, and reduce judicial and
administrative burdens for victims families); Human Rights Comm., 92d Sess.,
Concluding Observations of the Human Rights Comm.: The Former Yugoslav Republic of
Macedonia, 12, U.N. Doc. CCPR/C/MKD/CO92 (Apr. 17, 2008) (emphasizing
the law of Amnesty does not apply to persons accused of committing serious
violations of international humanitarian law); Human Rights Comm., 87th Sess.,
Concluding Observations of the Human Rights Comm.: Kosovo (Serbia), 12, U.N. Doc.
CCPR/C/UNK/CO/1 (Aug. 14, 2006) (emphasizing that states must investigate
all outstanding cases of war crimes, crimes against humanity and ethnically
motivated crimes committed before and after 1999. . . .); Concluding Observations
of the Human Rights Comm.: Serbia and Montenegro, supra note 149, 11- 12
(suggesting that the State party should cooperate with the ICTV in the
prosecution and apprehension of those accused of committing violations of
international humanitarian law); Concluding Observations of the Human Rights
Comm.: Colombia, supra note 160, 8 ([T]he State party should ensure that the
proposed legislation on the alternative penalties to imprisonment does not grant
impunity to persons who have committed war crimes or crimes against
humanity.); Concluding Observations of the Human Rights Comm.: El Salvador, supra
note 161, 11 (asserting that the State party should take steps to ensure that no
one in the National Civil Police has committed violations of human rights law);
Human Rights Comm., 71st Sess., Concluding Observations of the Human Rights
Comm.: Croatia, 11, U.N. Doc. CCPR/CO/71/HRV (Apr. 30, 2001) (calling upon
the State party to ensure that the Amnesty law is not applied to grant impunity to
accused human rights violators); Human Rights Comm., Concluding observations of
the Comm. on the Rights of the Child: Cambodia, 6, U.N. Doc. CCPR/C/79/Add.108
(July 27, 1999) (emphasizing that the State part6y must bring Khmer Rouge
leaders to trial promptly).
168
See, e.g., Concluding Observations of the Human Rights Comm.: Serbia and
Montenegro, supra note 149, 11-12 (expressing concerns related to Articles 2, 6,
and 7 and recommending that The State party should take all necessary
measures to ensure that those responsible for war crimes and crimes against
humanity are brought to justice, to ensure that justice is carried out in a fair
manner and to establish an adequate system for witness protection.); Concluding
1228 U. Pa. J. Intl L. [Vol. 31:4

its review of derogations, however, the HRCs remarks in this
regard are largely conclusory and provide little actual analysis of
humanitarian law.
The Committee, moreover, has long recognized terrorism as an
obstacle to the application of Covenant rights
169
and has expressed
increasing concern about anti-terrorism measures in the wake of
the attacks on September 11, 2001.
170
Though it does not explicitly
delineate the relationship between the war on terror and the
applicability of humanitarian law, the HRCs discussion of the
Covenant in this context is illuminating in view of the numerous
linkages it perceives between the two bodies of law, particularly
Common Article 3s reflection of fundamental rights guaranteed
by the Covenant in any armed conflict.
171

Observations of the Human Rights Comm.: Croatia, supra note 167, 10 ([T]he
Committee remains deeply concerned that many cases involving violations of
articles 6 and 7 of the Covenant committed during the armed conflict . . . have not
yet been adequately investigated . . . .).
169
See Human Rights Comm., Concluding Observations of the Human Rights
Comm.: Peru, 8, U.N. Doc. CCPR/C/79/Add.8 (Sept. 25, 1992) (condemning
terrorist violence, which shows no consideration for the most basic human
rights); Human Rights Comm., 57th Sess., Preliminary Observations of the Human
Rights Comm.: Peru, 3, U.N. Doc. CCPR/C79/Add.67 (July 25, 1996) ([M]any of
the measures adopted by the Government [to combat terrorism] have frustrated
implementation of the rights protected under the Covenant.); Human Rights
Comm., 56th Sess., Concluding Observations of the Human Rights Comm.: Spain, 3,
U.N. Doc. CCPR/C/79/Add.61 (Apr. 3, 1996) (noting that terrorist attacks affect
the application of the Covenant in Spain).
170
Anti-terrorism legislation is often linked to States obligations under
Security Council Resolution 1373, which called upon States to [t]ake the
necessary steps to prevent the commission of terrorist acts. . . . S.C. Res. 1373,
2(b), U.N. Doc. S/RES/1373 (Sept. 28, 2001). See Human Rights Comm., 75th
Sess., Concluding Observations of the Human Rights Comm.: New Zealand, 11, U.N.
Doc. CCPR/CO/75/NZL (Aug. 7, 2002) (recognizing that security requirements
relating to the events of 11 September 2001 have rightly given rise to anti-
terrorism measures, but expressing concern about possible negative effects of the
new legislation and practices on asylum-seekers); Human Rights Comm., 75th
Sess., Concluding Observations of the Human Rights Comm.: Yemen, 18, U.N. Doc.
CCPR/CO/75/YEM (July 26, 2002) (While it understands the security
requirements connected with the events of 11 September 2001, the Committee
expresses its concern about the effects of this campaign on the human rights
situation in Yemen. . . .); Human Rights Comm., 74th Sess., Concluding
Observations of the Human Rights Comm.: Sweden, 12, U.N. Doc.
CCPR/CO/74/SWE (Apr. 24, 2002) (expressing concern about the effect of the
international campaign against terrorism, linked to the attacks of September 11,
2001, on the human rights situation in Sweden).
171
Concluding Observations of the Human Rights Comm.: United States of
America, supra note 158, 5.

The Committees silence as to the link between humanitarian
law and the war on terrorism is perhaps unsurprising given the
complexity of assessing which provisions of humanitarian law, if
any, apply to a war characterized by attacks from globalized non-
state actors.
172
International terrorism thus challenges the
traditional international/non-international bifurcation of armed
conflict that provides the point of departure for determining which
humanitarian law principles apply.
173
Humanitarian law may not
apply at all, moreover, if the war on terror is conceptualized solely
in terms of law enforcement, i.e., in the absence of armed
conflict, in which case human rights law would provide the
governing framework.
174
The choice, however, is not so stark.
That the war on terrorism can be situated in both law enforcement

172
The threshold question is whether military action from such actors can
amount to an armed attack, triggering the right of self-defense, and, with
armed conflict, the applicability of humanitarian law. Compare LESLIE C. GREEN,
THE CONTEMPORARY LAW OF ARMED CONFLICT 5455 (2d. ed. 2000) (noting the
traditional view that international law regulates only states and that for an armed
conflict to warrant regulation conflict to warrant regulation by the international
law of armed conflict was necessary for the situation to amount to . . . a contention
between states . . . .) with Sean D. Murphy, Terrorism and the Concept of Armed
Attack in Article 51 of the U.N. Charter, 43 HARV. INTL L. J. 41, 4751 (2002)
(arguing that the 9/11 attacks constituted an armed attack and stating that the
U.S. interpretation of the incidents as an armed attack was largely accepted by
other nations) and RICHARD FALK, THE GREAT TERROR WAR 102 (2003) (stating with
regard to the tremendous damage inflicted by the 9/11 attacks that, stretching
the international law doctrine of self-defense to include a non-state actor seemed
reasonable and necessary).
173
If the war on terror constitutes an international armed conflict, the four
Geneva Conventions, Geneva Protocol I, and other humanitarian law principles
apply. Armed conflicts not of an international character are subject to a
different subset of humanitarian law principles: either the broadly applicable
Common Article 3 or Additional Protocol II, which defines non-international
armed conflicts more narrowly. See, e.g., Derek Jinks, September 11 and the Laws of
War, 28 YALE J. INTL L. 1, 3341 (2003) (arguing that September 11 triggered an
armed conflict not of an international character and hence Common Article 3 is
applicable).
174
See Kenneth Watkin, Controlling the Use of Force: A Role for Human Rights
Norms in Contemporary Armed Conflict, 98 AM. J. INTL L. 1, 36 (2004) (discussing
the limited impact of humanitarian law on situations that do not reach a level
above internal, disturbances and tensions. . . .). Of course, the broad
proposition that humanitarian law does not apply to the war on terror was
rejected by the Supreme Court in Hamdan v. Rumsfeld, which held that Common
Article 3 affords some minimal protection, falling short of full protection under
the Conventions, to individuals associated with neither a signatory nor even a
non-signatory Power who are involved in a conflict in the territory of a
signatory. 548 U.S. 557, 630 (2006).
1230 U. Pa. J. Intl L. [Vol. 31:4

and international armed conflict paradigms
175
highlights the need
for authoritative interpretations of humanitarian law in this
context.
The Committee has expressed a variety of concerns about the
impact on Covenant rights of states responses to terrorism. Anti-
terrorism legislation may be overbroad or vague, leading to
indiscriminate enforcement threatening Covenant rights.
176
Such
laws may directly conflict with the Covenant and in some cases
amount to an impermissible derogation of Covenant rights.
177

Alleged terrorists may be subjected to arbitrary detention, ill-
treatment, or torture.
178
Anti-terrorism laws may also raise issues

175
See Watkin, supra note 174, at 6([T]he challenge of international terrorism
does not need to be dealt with exclusively under either criminal law or the law of
armed conflict.); Murphy, supra note 172, at 49 ([T]here is no need to view the
September 11 incidents as presenting a binary choice between being regarded
either as a criminal act or as a use of force amounting to an armed attack. In fact,
the incidents can properly be characterized as both a criminal act and an armed
attack.).
176
E.g., Concluding Observations of the Human Rights Comm.: Spain, supra note
167, 10 (noting potentially too broad scope of the definitions of terrorism in
domestic law which could lead to violations of several of the rights enshrined in
the Covenant); Human Rights Comm., 86th Sess., Concluding Observations of the
Human Rights Comm.: Norway, 9, U.N. Doc. CCPR/C/NOR/CO/5 (Apr. 25,
2006) (expressing concern about the potentially overbroad reach of the definition
of terrorism and stating that Norway should ensure that its legislation adopted
in the context of the fight against terrorism . . . is limited to the crimes that deserve
to attract the grave consequences associated with terrorism); Human Rights
Comm., 83d Sess., Concluding Observations of the Human Rights Comm.: Mauritius,
12, U.N. Doc. CCPR/CO/83/MUS (Apr. 27, 2005) (criticizing domestic
terrorism legislation as the notion of terrorism is vague and lends itself to broad
interpretations); Human Rights Comm., 82d Sess., Concluding Observations of the
Human Rights Comm.: Morocco, 20, U.N. Doc. CCPR/CO/82/MAR (Dec. 1, 2004)
(expressing concern about the broad definition of terrorist act and
recommending that State party ensure compliance with the provisions of article
15 and all the other provisions of the Covenant).
177
Human Rights Comm.: Australia, 11, U.N. Doc. CCPR/C/AUS/CO/5 (May 7,
2009) (noting that some provisions of domestic anti-terrorism legislation appear
to be incompatible with the Covenant rights, including with nonderogable
provisions); Human Rights Comm., 73d Sess., Concluding Observations of the
Human Rights Comm.: United Kingdom, 6, U.N. Doc. CCPR/CO/73/UK (Dec. 6,
2001) (noting that adoption of legislative measures to combat terrorism may
require derogations from human rights obligations and urging that any such
measures be in full compliance with the provisions of the Covenant, including,
when applicable, the provisions on derogation contained in article 4 of the
Covenant).
178
See Concluding Observations of the Human Rights Comm.: Yemen, supra note
129, 13 (The Committee remains concerned . . . about reported grave violations

of impunity where law enforcement officials are exempted from
liability for acts stemming from counter-terrorist operations.
179

After the events of September 11, 2001, the crux of the Committees
most frequently elucidated concern to ensure that the fear of
terrorism . . . [does] not become a source of abuse.
180

Accordingly, the war on terrorism presents an array of
problems as to which the Committee recognizes humanitarian law
is applicable. The Concluding Observations, however, do not
explicitly refer to humanitarian law in seeking to address these
problems. Rather, the Committee frames its concern about
terrorism-inspired abuse entirely in terms of the Civil and Political
Covenant.
3.3. Summary
The Committee uses its Concluding Observations to take a
broader view of the human rights situation in the State party.
Taking into account the relationship between the Covenant and
other human rights instruments, the HRC often relies on these
instruments in making recommendations and drawing conclusions
as to the human rights situation in the State party. This approach
has led the HRC to link protections of the Civil and Political
Covenant explicitly to those offered by international humanitarian
law. The Committee has further emphasized that a state may only
derogate from those protections in accordance with Article 4 and
its General Comment 29. A state may be held responsible for
violations committed by its agents on foreign soil and a state also
has the responsibility to investigate and prosecute individuals
accused of committing crimes against humanity, war crimes, or
other serious human rights abuses.
While the Concluding Observations offer the Committees most
explicit and substantial treatment of international humanitarian

of articles 6, 7, 9 and 14 of the Covenant committed in the name of the anti-
terrorism campaign.); Concluding Observations of the Human Rights Comm.: Spain,
supra note 169, 10 (expressing concern at numerous reports . . . of ill-treatment
and even torture inflicted on persons suspected of acts of terrorism by members of
the security forces).
179
See Concluding Observations of the Human Rights Comm.: Russian Federation,
supra note 170, 13 (expressing concern over legislation exempting law
enforcement and military personnel from liability for violations committed during
counter-terrorist efforts, citing Articles 2, 6, 7, and 9).
180
Rights Comm.: Yemen, 18, U.N. Doc. CCPR/CO/75/YEM (July 26, 2002).
1232 U. Pa. J. Intl L. [Vol. 31:4

law, they do not provide the robust analysis necessary for a
precedential interpretation. The same approach that compels the
Committee to consider humanitarian law has also hindered it in
providing such an analysis: humanitarian law is explored only to
the limited extent necessary to contextualize the Covenant rights at
issue. In short, the Committee links humanitarian law to
provisions of the Covenant but provides virtually no substantive
analysis of humanitarian law itself.
The war on terror likewise presents a host of issues,
including wartime detention, to which the HRC recognizes
international humanitarian law may apply. The Committees
recognition of an expanding propensity for abuse in the wake of
the September 11 attacks highlights the need to explore
humanitarian laws potential to address these issues. The
Committee, however, does not even invoke humanitarian law in
this context, relying instead on the provisions of the Covenant.
4. DECISIONS AND VIEWS
The HRC performs three separate functions that result in
written interpretations: its Decisions and Views taken pursuant to
individual complaints received under the Optional Protocol, its
General Comments elaborating Covenant protections, and its
Concluding Observations issued in response to periodic country
reports by member states. The Committee does not perform these
three functions in isolation: in its Decisions and Views it frequently
references its General Comments, in its General Comments it
summarizes its experience in making Concluding Observations,
and in its Concluding Observations it occasionally references its
General Comments and its Decisions and Views.
Nonetheless, the Committee varies distinctly among its three
functions regarding the method of analysis employed and the
utilization of other international instruments. In its Decisions and
Views, the Committee avoids referencing other international
instruments, although in recent sessions it has utilized them
slightly more as support for its findings. The Committee has been
presented with little opportunity to consider international
humanitarian law, as most individual communications have not
supported their claims with the rules of international humanitarian
law. The Committees analysis, therefore, largely relies on
considering its own jurisprudence and only in very rare situations

has the Committee explicitly considered other international
instruments as relevant.
In its General Comments, the Committee explicitly
acknowledges other international obligations and takes care to
determine that Covenant protections comply. The General
Comments, however, tend to provide conclusory statements of
broad policy rather than fact-based analysis. The Committee
frequently cites to its jurisprudence under its Decisions and Views
to support its statements.
In the Concluding Observations, the Committee takes a
broader view of a states obligations and places Covenant
protections within the general framework of human rights
protections. The Concluding Observations do not provide much in
the way of analysis; instead, they offer broad statements that
generally frame a states obligations.
From a conceptual standpoint, the HRC is essentially
performing all the analysis needed to provide authoritative
interpretations of international humanitarian law. First, under its
Concluding Observations, it links international humanitarian
protections to Covenant protections. Second, the General
Comments further explain the nature of the protections offered by
the Civil and Political Covenant. Third, the case-by-case analysis
of individual complaints, based frequently on the General
Comments, demonstrates when a state violates its obligations
under the Covenant on a specific, fact-based level. Logically, if an
individual complaint arises from a situation of armed conflict, the
Committee may be considering the rules of international
humanitarian law through the Covenant.
The problem, however, is that the Committee will only
implicitly consider international humanitarian law. One would
still need to work backward from a Decision and View to
determine whether the Committees finding actually dealt with
international humanitarian law. For example, if the Committee
found a violation of Article 7 of the Covenant, it would base that
decision on its jurisprudence and perhaps a General Comment.
Even though the Committee has stated that a violation of Article 7
may entail a violation of international humanitarian law,
181
there
would be no practical way to determine whether the Covenant

181
See Concluding Observations of the Human Rights Comm.: Central African
Republic, supra note 129, 8 (observing that no investigation of violations of
Article 7 had yet been carried out in the Central African Republic).
1234 U. Pa. J. Intl L. [Vol. 31:4

violation also constituted a violation of international humanitarian
law because the Committee would only explicitly find a violation
of the Covenant.
The result is that despite the amount of analysis the HRC
performs, it does not create effective precedent beyond the Civil
and Political Covenant. Although the Committee may deal with
violations of international humanitarian law, its conclusions
whether through the Decisions and Views, the General Comments,
or the Concluding Observationsare inevitably framed through
the Covenant.
5. RECOMMENDATIONS
The situation is as follows: the HRC can competently analyze
human rights violations occurring in situations of armed conflict.
Its resulting interpretations, however, are framed through the Civil
and Political Covenant, not through the rules of international
humanitarian law. To provide a precedential interpretation of
international humanitarian law, there are two basic options: either
the HRC can broaden its scope to include analysis of international
humanitarian protections when it speaks to issues occurring in the
context of armed conflict or a separate body can be created to
address alleged violations of international humanitarian law. The
best approach would be for the HRC to consider relevant
international instruments explicitly in its analysis, while limiting
itself to finding violations of the Civil and Political Covenant.
Creating a separate body to address alleged violations of
international humanitarian law presents a host of practical
problems, ranging from designing a new international body to
gaining international acceptance.
182
Even if such a body were
successfully created, there would likely be a large amount of
substantive overlap between it and already existing institutions
like the HRC and the International Criminal Court. Depending

182
Perhaps the most obvious obstacle to the creation of a separate body is the
likely paucity of political will. See, e.g., Geoffrey Palmer, New Ways to Make
International Environmental Law, 86 AM J. INTL L. 259, 282 (1992) (noting a broad
consensus among governments that the creation of new institutions should be
avoided when possible). Great power antinomy may further undermine the
efficacy of such a body. See, e.g., Salvatore Zappal, The Reaction of the US to the
Entry into Force of the ICC Statute: Comments on UN SC Resolution 1422 (2002) and
Article 98 Agreements, 1 J. INTL CRIM. JUST. 114, 133 (2003) (arguing that Article 98
agreements as proposed by the United States are incompatible with the Rome
Statute).

upon the composition of the body, moreover, it may take
substantial time to develop expertise.
183
Nonetheless, an
international body designed to consider violations of international
humanitarian law would provide explicit analysis and precedent
and could be comprised of members with the appropriate
expertise. Ultimately, however, such an approach would be
complicated to achieve and likely redundant in its final product.
Creating a new international body, therefore, does not present the
most feasible or effective way to address interpretations of
The alternative is to require the HRC to modify its approach
when addressing issues of international humanitarian law. The
basic output required would be for the Committee to state when an
issue presents a violation of the Geneva Conventions. There are
several arguments in favor of and in opposition to such an
approach.
A simple argument in favor of having the Committee explicitly
consider international humanitarian law is that it already does so.
According to its Concluding Observations, the Covenant already
offers many of the same protections as the Geneva Conventions
and international humanitarian law. Consequently, in its
Decisions and Views, the Committee would only need to take a
few sentences to relate violations of the Covenant explicitly to
international humanitarian law, which it already does in its
Concluding Observations. Moreover, since such violations only
occur in situations of armed conflict, the Committee would only
have to perform the additional analysis in the uncommon situation
of a state of emergency or armed conflict. Additionally, authors
and State parties have appeared eager to support their positions by
reference to international instruments, which they would likely put
before the Committee. Similarly, the Committee considers itself

183
A potent criticism of the application of humanitarian law by human rights
bodies is that such bodies often lack expertise in the law of war. The HRC,
however, contains a greater percentage of members with expertise in
humanitarian law than do other human rights bodies. Compare Meron, supra note
117, at 247 (citing the lack of expertise in the law of war and the tendency of
such bodies to reach conclusions that humanitarian law experts find
problematic), with Christine Byron, A Blurring of the Boundaries: The Application of
International Humanitarian Law by Human Rights Bodies, 47 VA. J. INTL L. 839, 882
(2007) (noting that fifty percent of the HRCs experts have some expertise in
humanitarian law, as compared to between fourteen and twenty-eight percent
and sixteen percent of the Inter-American Court and Commission of Human
Rights and the European Court of Human Rights, respectively).
1236 U. Pa. J. Intl L. [Vol. 31:4

competent to consider other instruments and, on several occasions,
explicitly has incorporated other standards to support a finding of
a violation. By finding a violation of the Civil and Political
Covenant through a violation of another international standard,
the Committee is effectively finding a violation of the other
international instrument.
The immediate counter-argument to having the Committee
explicitly find violations of international humanitarian law in its
Decisions and Views is that the Optional Protocol to the Civil and
Political Covenant limits the Committee to considering violations
of the Civil and Political Covenant. Therefore, the Committee has
no mandate or authority to pronounce state violations of
international humanitarian law. Another counter-argument is that
there is no need for the Committee to address international
humanitarian law explicitly: since the Committee has declared that
the Covenant protects many of the same rights as international
humanitarian law and applies regardless of the situation, the
Committee already addresses any potential violation of
international humanitarian law through the Civil and Political
Covenant. A further argument is that the Committee already has
built up its own jurisprudence based on the Civil and Political
Covenant, and that suddenly changing its methodology and
approach could call into question the viability of its previous
jurisprudence. There is also the limitation that only individuals
subject to the jurisdiction of states party to the Optional Protocol
could raise such claims, so the Committee would be effectively
precluded from considering alleged violations of international
humanitarian law occurring in nonparty states. This problem,
however, is no different from what would occur with attempting to
create a separate body to consider violations of international
humanitarian law.
Reducing the arguments for and against, the Committee would
not have to perform substantially more work or analysis to address
international humanitarian law in its Decisions and Views, but
under the Optional Protocol cannot pronounce a violation of
another international instrument.
The best the HRC could do under its current mandate would
be to utilize relevant international instruments explicitly in its
analysis of alleged Covenant violations. By incorporating other
international instruments into its analysis, the Committee could
still comply with the Optional Protocol so long as the individual
claimed a violation of a Covenant right. Because the Civil and

Political Covenant ostensibly offers many of the same protections
as international humanitarian law, an individual could allege a
violation of the Covenant and cite the Geneva Conventions in
support. The Committee could still find a violation of only the
Covenant, but if it explicitly incorporated the Geneva Conventions
into its analysis, it might actually create some precedent for
international humanitarian law and interpretation of the Geneva
Conventions.
Such an approach would encourage individuals to support
their claims with relevant international humanitarian standards,
enable the HRC to provide analysis of those standards, and take a
needed further step toward harmonizing the substance of human
rights and humanitarian law. Even though the ultimate findings
would be in terms of Covenant provisions, the Committees
analysis could be informative and precedential.

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