International Human Rights instruments contain both derogable and non-derogable rights. In times of crisis or public emergency, such as declared war, the state has the right to derogate from some of the protections afforded under IHRL, necessarily limiting the rights of the citizens in order to increase its capacity to deal with the situation.
Derogations with regard to acts of war are permitted subject to strictly defined criteria of necessity and lawfulness. Derogations exist to take the realities of war and situations of public emergency into account while providing the upmost protection to those under the power of the state. The State Party must demonstrate the necessary nature of such measures, and prove that it remains consistent with international law. In practice, for our purposes, it is rare that a state will actually seek to derogate. States in the midst of internal conflict are slow to define the situation as a ‘war’, preferring to avoid international interest and the perception that the situation might not be under control.
The state cannot, by means of derogation, avoid its obligations to protect the Right to Life and the Right to be Free from Torture. All instruments are clear in this regard. However, there are some considerations within a context of armed conflict where civilian deaths are deemed not to be violations of the Right to Life.
DISCUSSION PAPER: THE LEGAL OBLIGATION TO RECORD CIVILIAN CASUALTIES OF ARMED CONFLICT, p. 17
