Human rights and humanitarian law - conflict or convergence.

• Author: Greenwood, Christopher

1. PROCEEDINGS II. INTRODUCTION III. THE ORIGINS OF HUMAN RIGHTS LAW AND HUMANITARIAN LAW IV. THE RELATIONSHIP BETWEEN HUMAN RIGHTS AND INTERNATIONAL HUMANITARIAN LAW V. CONFLICT OR CONVERGENCE? VI. CONCLUSION I. PROCEEDINGS

   DEAN RAWSON: I judge that by the quiet that came over the room that we are ready to begin. I'm Robert Rawson the Interim Dean of the Case Western Reserve School of Law and in that capacity, it's my privilege and pleasure to welcome you to what will be a splendid presentation.

   Before introducing our speaker, I would like to recognize a man who, in a very real sense, has made this occasion possible and has been, in his own right, an advocate for human rights for some time now. Ten years ago, University trustee Bruce Klatsky, then Chairman and CEO of Phillips Van Heusen Corporation and member of the Board of Human Rights Watch, where he's been on the board for some years now, provided a special endowment to the law school for a human rights lecture series and an annual fellowship for two students with Human Rights Watch.

   The Klatsky Seminar in Human Rights has become the centerpiece of our expanding program here at the law school in human rights. That human rights program also includes internships, organizations, and institutions dedicated to human rights across the globe, human rights projects in several countries and research assistance to five international tribunals. Our work for the A.B.A. Task Force on reforming the human rights commission won the A.B.A. Outstanding Policy Initiative Award in 2005 and about that same year, Professor Scharf and our war crimes research program were nominated by the Prosecutor of the Special Court for Sierra Leone for the Nobel Peace Prize.

   Bruce Klatsky has been an inspiration for these initiatives and for, obviously, this session itself. Bruce, I wonder if you wouldn't mind standing so others can recognize, along with me, your contribution? (Applause.)

   Past Klatsky lecturers have included Assistant Secretary of State for Human Rights Harold Koh, Pulitzer prize winning author Samantha Power, Prosecutor of the International Tribunal David Crane, Head of the Department of Justice's Office of Special Investigations Eli Rosenbaum, Executive Director of Human Rights Watch Kenneth Roth, the President of the Inter-American Commission on Human Rights Michael Reisman, and International Criminal Tribunal Judge Geoffrey Robertson.

   Today, joining this illustrious list of lecturers is today's Klatsky lecturer, Sir Christopher Greenwood, Judge of the International Court of Justice. Also known as the World Court, the International Court of Justice is the United Nations' highest court. It has jurisdiction over cases between countries and over the years has decided crucial cases, including: judgments on the legality of nuclear weapons, responsibility for genocide in Bosnia, and the liability of the United States for mining the harbors of Nicaragua.

   Before his appointment, Judge Greenwood was one of the world's foremost scholar practitioners. He was a distinguished professor of International Law at the London School of Economics, and as Queen's Counsel, he argued ten cases before England's highest court, as well as dozens of other cases before the International Court of Justice (ICJ), the European Court of Justice (ECJ), the European Court of Human Rights (ECHR), and the International Criminal Tribunal for the former Yugoslavia (ICTY).

   Today, we are indeed privileged to hear from Judge Greenwood whose lecture is entitled "Human Rights and Humanitarian Law: Conflict or Convergence." After Judge Greenwood speaks for about forty minutes, our tradition is to open it up for questions for about twenty minutes and then we will hold a reception immediately after that in the rotunda immediately behind me. Please join me, ladies and gentlemen, in welcoming Judge Christopher Greenwood. (Applause)

   JUDGE GREENWOOD: Dean, ladies and gentlemen, first of all, thank you, very much, for those extremely kind words of introduction. It is an honor to be invited to give the Klatsky lecture this year, especially to follow in the footsteps of such a distinguished group of lecturers as you have just listed. It is also a particular pleasure to do so in the presence of the founder of the series, Bruce Klatsky, whose commitment to human rights and to this law school led not only to the foundation of this series of lectures but also to the endowment of a number of student fellowships of Human Rights Watch.

   Let me just say two words about those fellowships. The first is that one of the cases that is indelibly etched on my mind from my career before I became a judge concerned General Pinochet, the former President of the Republic of Chile. I appeared for the Government of the Kingdom of Spain in seeking to have him extradited on charges of torture. It was the first case I was asked to do in front of the House of Lords, the forerunner of the modern Supreme Court of the United Kingdom.

   I was telephoned by a lawyer acting for the Crown's Prosecution Service and asked whether I would be willing to take this brief in the Supreme Court. It is not an invitation you turn down--it really is the offer you cannot refuse. So I said cheerfully, "Yes, of course" and, reaching for my diary for the following year, asked when the hearing would be? He said, "[T]hat's the problem. It's the day after tomorrow." (Laughter.)

   This was a bit of a problem, I have to say. There are a number of things that I remember about that hearing, most of them things that wake me up in the middle of the night with a cold sweat. But one of the pleasant memories I have is of the group of student fellows of Human Rights Watch who, at their own expense, flew to the United Kingdom and worked entirely without any fee or public credit to try to provide those of us on the extradition team with research materials and guidance. So I'd like to take this opportunity to pay tribute to them and also to the value of Human Rights Fellowship at HRW.

   My second point is that a lot of the work I did as a barrister was for the British Government. Human Rights Watch was, therefore, often involved on the other side. So let me pay them the advocate's tribute to an adversary--I always did a little bit of extra preparation if I knew that Human Rights Watch were involved on the other side of any case.

2. INTRODUCTION

   The topic I want to talk about this evening is the relationship between two different areas of international law: the international law of human rights and international humanitarian law or, if you prefer, the laws of war (the more traditional term for the same body of rules). That is a topical subject but also a highly controversial one.

   Here in the United States, it goes to the heart of debates about the war on terror and, in particular, about the detention facility at Guantanamo Bay. To one group, everything that happens in the war on terror and, in particular at Guantanamo, is a matter solely for the laws of war. It fits into the box marked "laws of war" or "humanitarian law" so that human rights law has nothing whatever to do with it. To another group, it is a human rights and law-enforcement issue that has little or nothing to do with the laws of war.

   What I shall try to show in this lecture is that neither of those two perspectives gives you the whole truth. For those of you who are interested in following that particular theme up, I cannot do better than recommend to you the latest issue of the Case Western Reserve Journal of International Law. The editor, Garrett Lynam, was kind enough to give me a copy of that last night. I've only had a chance to browse through it, Garrett, but I can say that it is an exceptionally good collection of materials on the whole Guantanamo debate which will give you a more balanced view on that than I think you could get from any other single publication, and ! congratulate you and your team of editors on having put it together.

   But it is not just in the United States of America that these arguments about the relationship between human rights and humanitarian law are raging at the moment. In Canada there is a long-running case about the handover by the Canadian forces in the International Stabilization Force in Afghanistan of detainees that they have captured that are required to hand over to the Afghan government.

   In Europe there have been a number of cases in the European Court of Human Rights; in particular the case of Bankovic about the bombing of a target in Belgrade during the Kosovo conflict in 1999. (2) And, there have been cases in the English courts about, for example, Mr. Al-Jedda, a dual British and Iraqi national detained by British forces under a detention without trial power for nearly two years, (3) a case which is now before the European Court of Human Rights. (4) Mr. Al-Jedda's case went to the House of Lords which looked, in particular, at the relationship between powers under the laws of war and restrictions under the European Convention on Human Rights. (5)

   The two bodies of law have grown up separately. They are often seen as conflicting cultures. To one group, human rights law is simply unsuited to the waging of warfare in any age but, particularly, the one that we have today. To them human rights law is designed for the quite different environment of a normal state in the condition of peace and are therefore hopelessly unsuited to regulating conditions on or near a battlefield. To another group, human rights are the jewel in the crown of modern international law and the laws of war are being invoked by governments as an excuse to do abroad things that they are not allowed to do at home.

   That is the debate that I want to look at. Let me put my cards on the table at the start and say that both these bodies of law are, in my view, part of international law as a whole. Neither is a self-contained entity and their keenest proponents do themselves a disservice by pretending that the...