II. REQUIREMENTS, LIMITATIONS AND EFFECTS OF THE CONCURRENT APPLICABILITY OF
INTERNATIONAL HUMAN RIGHTS LAW AND INTERNATIONAL HUMANITARIAN LAW IN ARMED CONFLICT
prescribes that no derogation may be made concerning the right to life,
the prohibition of torture or cruel, inhuman or degrading punishment, or
of medical or scientific experimentation without consent, the prohibition
of slavery, slave trade and servitude, the prohibition of imprisonment
because of the inability to fulfil a contractual obligation, the principle of
legality in the field of criminal law, i.e., the requirement of both criminal
liability and punishment being limited to clear and precise provisions in
the law that was in place and applicable at the time the act or omission
took place, except in cases where a later law imposes a lighter penalty,
the recognition of everyone as a person before the law, and the freedom
of thought, conscience and religion (art. 4.2). In its general comment
No. 29 (2001), the Human Rights Committee further includes the prohibition
against the taking of hostages, abductions or unacknowledged detention;
discrimination, deportation or forced transfer of minorities; incitement to
discrimination, hostility or violence through advocacy of national, racial or
religious hatred. It has also stressed that no derogation can be made from
peremptory norms of international law.61
The Human Rights Committee has also indicated that to assess the scope of
legitimate derogation from the Covenant, one criterion can be found in the
definition of certain human rights violations as crimes against humanity. In
this respect, the Committee has asserted that “if action conducted under the
authority of a State constitutes a basis for individual criminal responsibility
for a crime against humanity by the persons involved in that action, article
4 of the Covenant cannot be used as justification that a state of emergency
The Committee indicated that “[t]he enumeration of non-derogable provisions in
article 4 is related to, but not identical with, the question whether certain human rights
obligations bear the nature of peremptory norms of international law.” The Committee
further stated that “the category of peremptory norms extends beyond the list of nonderogable provisions as given in article 4, paragraph 2. States parties may in no
circumstances invoke article 4 of the Covenant as justification for acting in violation
of humanitarian law or peremptory norms of international law, for instance by taking
hostages, by imposing collective punishments, through arbitrary deprivations of liberty
or by deviating from fundamental principles of fair trial, including the presumption of
innocence” (general comment No. 29 (2001), para. 11).
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