Assessing Damage, Urging Action Insofar as the US denies any reciprocal rights to its adversaries in the “war on terror”, its war paradigm is inconsistent with a bedrock principle of humanitarian law – equality of the parties. This equality principle requires that all the parties to an armed conflict are equally bound by the law, irrespective of the causes or origins of the conflict. Moreover, the parties to the conflict cannot selectively apply or ignore otherwise applicable IHL rules. Similarly, the war paradigm’s assumption that international human rights law does not apply during armed conflict is at odds with settled international jurisprudence. The International Court of Justice has affirmed on three separate occasions that human rights law remains applicable in times of armed conflict.97 In addition, there have been numerous resolutions in the UN Security Council, General Assembly and other bodies which affirm this principle.98 The UN Human Rights Committee, in respect of the obligations under the International Covenant on Civil and Political Rights (ICCPR), has stated: “… the Covenant applies also in situations of armed conflict to which the rules of international humanitarian law are applicable. 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.” 99 As previously noted, the US administration also questioned the extra-territorial reach of human rights obligations. Yet it is generally recognised that human rights treaties apply wherever a State “exercises jurisdiction”. This position has been normal constitutional protections. See for example, the case of al Marri, an individual arrested and detained as “enemy combatant” within the United States, discussed in written submission on behalf of Mr al Marri by his attorneys, EJP United States Hearing. See also the case of José Padilla, who was initially arrested and detained under material witness statute, then detained as “enemy combatant” for 3 1/2 years until brought to trial before a US federal court on charge of conspiracy to commit terrorism. 97 See International Court of Justice (ICJ), Advisory Opinion of 8 July 1996, Legality of the Threat or Use of Nuclear Weapons, ICJ Reports 1996, p. 226, para. 25; ICJ, Advisory Opinion of 9 July 2004, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Reports 2004, p. 136, para. 106; ICJ, Judgment of 3 February 2006, Armed Activities on the Territory of the Congo (New application 2002), (Democratic Republic of Congo v. Rwanda), para. 119. The Court’s opinions indicate that, in situations of armed conflict, the lex specialis character of international humanitarian law does not, as such, derogate human rights law; rather it must be consulted to determine whether a Covenant-based right has been breached. 98 See for example, UN Security Council Resolution 1674 (2006) adopted on 28 April 2006, UN Doc. S/ RES/1674 (2006); Resolution 1502 (2003) adopted on 26 August 2003, UN Doc. S/RES/1502 (2003), para. 3, l; Resolution 1355 (2001) adopted on 15 June 2001, UN Doc. S/RES/1355 (2001), paras. 15, 35; Resolution 1296 (2000), adopted on 19 April 2000, UN Doc. S/RES/1296 (2000), para. 5; Resolution 237 (1967) adopted on 14 June 1967, UN Doc. S/RES/237 (1967), UN General Assembly Resolution 2444 (1978), adopted on 19 December 1968, UN Doc GA/RES/2444 (1968). See also Report of the International Commission of Inquiry on Darfur to the UN Secretary-General, pursuant to Security Council Resolution 1564 of 18 September 2004, 25 January 2005. 99 UN Human Rights Committee, General Comment No. 31 [80] Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN Doc. CCPR/C/21/Rev.1/Add.13 (hereinafter: General Comment No. 31), 26 May 2005, para. 11. 55