Abstract
This chapter evaluates the jurisprudence to the European Court of Human Rights (“ECtHR” or “the Court”) in order to ascertain how effectively it engages with international humanitarian law (“IHL”). The chapter briefly outlines the nature of the interaction between human rights and humanitarian law, including a discussion of the leading cases from the International Court of Justice and the concept of lex specialis. From that point, the chapter works to assess key cases relating to the extraterritorial application of the European Convention on Human Rights (“ECHR” or “the Convention”) in situations of military occupation and armed conflict. This section will examine whether the basis for extending jurisdiction beyond the territorial limits of the Convention state is coherent with IHL. Another important facet of the Court’s jurisprudence is its treatment of cases that have arisen in internal conflicts. In such cases, the Court has been even more unwilling to engage with humanitarian law. A brief case study of two subjects that are of central importance in armed conflicts, namely the use of lethal force and the grounds for detention, show that this reluctance is carried through to the interpretation and application of substantive Convention rights.
S. Hartridge JD (Hons) is a Research Associate, Faculty of Law, University of New South Wales, Kensington, NSW 2052. The author would like to thank Associate Professor Christopher Michaelsen for his considerable advice and assistance in writing this chapter.
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Notes
- 1.
Resolution XXIII “Human Rights in Armed Conflicts” adopted by the International Conference on Human Rights, Tehran, 12 May 1968; for a discussion of the relationship between the two disciplines, see Prud’Homme 2007, pp. 359–362.
- 2.
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [1996] ICJ Rep 226, 8th July 1996.
- 3.
European Convention on the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 UNTS 221, Article 32.
- 4.
ECHR Article 41.
- 5.
Additionally, the textual opening through which IHL is made relevant to other human rights treaties, namely interpreting what constitutes arbitrariness, is foreclosed by the wording of relevant provisions; see below Sect. 9.5.
- 6.
Hampson and Salama 2005 at para 41.
- 7.
Prud’Homme 2007, p. 360.
- 8.
- 9.
- 10.
- 11.
Schabas 2007, p. 593.
- 12.
Hampson 2008, p. 562.
- 13.
Doswald-Beck and Vité 1993, p. 7.
- 14.
Doswald-Beck and Vité 1993, pp. 4–5.
- 15.
Hampson 2008, p. 561.
- 16.
Doswald-Beck and Vité 1993, p. 7.
- 17.
Schabas 2007, p. 610.
- 18.
Vienna Convention on the Law of Treaties 23 May 1969 (entered into force 27 January 1980). 1155 UNTS 331.
- 19.
See, note 2.
- 20.
International Covenant on Civil and Political Rights, GA res 2200A (XXI), 21 UN GAOR Supp (No. 16), UN Doc A/6316 (1966); 999 UNTS 171.
- 21.
At para 25.
- 22.
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, [2004] ICJ Rep 136, 9th July 2004.
- 23.
Ibid at para 137.
- 24.
Ibid at para 106.
- 25.
Report of the expert meeting on the right to life in armed conflicts and situations of occupation, University Centre for International Humanitarian Law, Geneva, 1–2 September 2005, www.ucihl.org/communication/Right_to_Life_Meeting_Report.pdf cited in Doswald-Beck 2006.
- 26.
For the fact that this human rights-IHL nexus may in some cases not be subject to reconciliation, ultimately leading to non justiciability claims see Solomon 2009, p. 140.
- 27.
Hampson and Salama 2005, at para 57.
- 28.
Case Concerning Armed Activities on the Territory of the Congo (DRC v. Uganda) [2005] ICJ rep 116 Judgment of 19 December 2005.
- 29.
Ibid at para 180.
- 30.
Alston et al. 2008, p. 194.
- 31.
UN Human Rights Committee (“HRC”), General comment no. 31 [80], The nature of the general legal obligation imposed on States Parties to the Covenant, 26 May 2004, CCPR/C/21/Rev.1/Add.13, available at: http://www.refworld.org/docid/478b26ae2.html [accessed 18 October 2013]; as to the consensus see Alston et al. 2008, p. 197.
- 32.
For example Human Rights Watch 2007, Why They Died: Civilian Casualties in Lebanon during the 2006 War.
- 33.
- 34.
Abresch 2005.
- 35.
ECHR Article 1.
- 36.
Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949 75 UNTS 31; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 75 UNTS 85; Geneva Convention Relative to the Treatment; of Prisoners of War, Aug. 12, 1949, 75 UNTS 135; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 75 UNTS 287 (“First Geneva Convention”, “Second Geneva Convention”, “Third Geneva Convention” and “Fourth Geneva Convention” respectively).
- 37.
See Melzer 2008, pp. 244–252.
- 38.
Benvenisti 2012.
- 39.
Benvenisti 2012 at para 1.
- 40.
Benvenisti 2012 at para 5.
- 41.
Ibid.
- 42.
Annex to Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague, 18 October 1907 Regulation 43, cf. Fourth Geneva Convention Article 64.
- 43.
See Sassoli 2004.
- 44.
App no. 15318/89, Judgment of 18 December 1996.
- 45.
At para 52, see also preliminary objections at para 62.
- 46.
At para 43.
- 47.
App no. 52207/99 Judgment of 12 December 2001.
- 48.
And another victim who was injured but survived.
- 49.
The third argument (at [53]) based on Soering v. United Kingdom, App no. 14038/88, proposed that the decision to launch the strike was made on the territory of the respondents and the consequent creation of extraterritorial effects bought the victims within jurisdiction. This was rejected by the court which found that the impugned act was the attack itself which was clearly extraterritorial, see [68].
- 50.
At para 46.
- 51.
At para 47.
- 52.
At para 52.
- 53.
At para 76.
- 54.
At para 71.
- 55.
At para 73.
- 56.
At para 75.
- 57.
Milanovic 2012, p. 123; Cyprus v. Turkey App nos. 6780/74 and 6950/75, 26 May 1975 “Authorised agents of a state, including [its] armed forces…bring any other persons “within the jurisdiction” of that that, to the extent that they exercise authority over such persons. Insofar as, by their acts or omissions, they affect such persons or property, the responsibility of the state is engaged” Cyprus v. Turkey App. Nos. 6780/74 and 6950/75, 26 May 1975; quoted in Lawson 2004. See also HRC in Lopez Burgos v. Uruguay, Communication No. R.12/52, UN Doc. Supp. No. 40 (A/36/40) at 176 (1981); General Comment No. 31.
- 58.
Milanovic, 2012, makes the convincing suggestion that the lack of consideration of a “state agent authority and control” basis for jurisdiction was because the Court was unable to find a non-arbitrary limitation that would achieve its unstated policy objectives, see p. 123.
- 59.
See Milanovic 2012 footnote 12.
- 60.
Issa and others v. Turkey App no. 31821/96, Admissibility Decision of 30 May 2000, Decision of Second Chamber, 16 November 2004.
- 61.
At para 75.
- 62.
ibid.
- 63.
At para 74.
- 64.
Loizidou merits judgement of 18 December 1996 at para 56.
- 65.
Ibid at paras 76–81.
- 66.
In light to the Northern Iraq’s autonomous status and the nature of the intervention, it may be arguable that a belligerent intent was absent see further Melzer 2008, p. 250.
- 67.
It is not entirely settled as to whether the Occupying Power has “actually substituted its own authority… or whether it is sufficient that the foreign army … is in a position” to do so. Although it appears that the weight of international judicial opinion favours the later Benvenisti 2012 at para 5.
- 68.
At para 71.
- 69.
At para 81.
- 70.
App no. 44587/98.
- 71.
Judgment of 24 June 2008, p. 2.
- 72.
Preliminary Judgment of 26 September 2006 at p. 19.
- 73.
“State may also be held accountable for a violation of the Convention rights and freedoms of persons who are in the territory of another State but who are found to be under the former State’s authority and control through its agents operating—whether lawfully or unlawfully—in the latter State” preliminary judgment, p. 19.
- 74.
Issak preliminary judgment at p. 20—cf López Burgos v. Uruguay, Comm. No. 52/1979, UN Doc. CCPR/C/13/D/52/1979 (1981).
- 75.
App no. 60167/00.
- 76.
At paras 49, 54. One of the interesting features of the case was that the Turkish government argued that the victims were on Turkish territory notwithstanding that this would unequivocally establish jurisdiction, albeit on a ‘territorial’ basis. The Government “vigorously denied … Turkish security forces had carried out a cross-border operation.” (at [51]) It is not clear from the judgment whether this was to avoid the political ramifications of conceding to a violation of Iranian sovereignty or whether it was an attempt to avoid strengthening the jurisprudence “authority and control of agents” basis for extraterritorial jurisdiction.
- 77.
At para 54.
- 78.
See, note 59.
- 79.
A number of scholars have highlighted the uncertain and tenuous distinctions that may be required to be drawn as a result of the Bankovic judgment. For example if a soldier points a gun at a civilian and thereby detains them, jurisdiction is probably established, whereas if the same soldier simply shoots and kills the civilian there may be no jurisdiction. Hampson suggests another example, where a plane drops two bombs simultaneously, one landing inside a border, thus within jurisdiction, and the other landing outside the territorial limits of the state. The victim of the first bomb will be legally protected by the ECHR whereas the other is not. See Hampson 2008, p. 570; see also Milanovic 2012, p. 123, 129.
- 80.
The sixth applicant’s complaint was found to be inadmissible because he was no longer a “victim of any breach of the procedural obligation under Article 2 at para 176.
- 81.
See, Sect. 9.5.
- 82.
UN Security Council resolution 1483, 1511; see para 143–148.
- 83.
At para 89.
- 84.
Ibid.
- 85.
At para 92.
- 86.
Ibid, Article 121 of the Third Geneva Convention and Article 131 of the Fourth Geneva Convention. the Court also cites the obligation to investigate and prosecute alleged grave breaches of the Conventions, which include “wilful killing of protected persons” in Articles 49 and 50 of the First Geneva Convention, Articles 50–51 of the Second Geneva Convention; Articles 129 and 130 of the Third Geneva Convention and 146 and 147 of the Fourth Geneva Convention.
- 87.
At para 93.
- 88.
At para 90 and following.
- 89.
At para 90.
- 90.
At para 143.
- 91.
At para 149.
- 92.
At para 149.
- 93.
Benvenisti 2012.
- 94.
Droege 2007, p. 332.
- 95.
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), Geneva 8 June, 1977.
- 96.
Rome Statute entered into force on 1 July 2002 2187 UNTS 90/37 Article 8(2)(c) and (e).
- 97.
Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects. Geneva, 10 October 1980. Amendment Article 1, 21 December 2001.
- 98.
Henckaerts and Doswald-Beck 2005.
- 99.
Bellinger and Haynes 2007.
- 100.
- 101.
- 102.
See Chap. 2.
- 103.
Protocol II Article 1(2).
- 104.
This was the approach explicitly taken by the court in the Isayeva cases discussed below. See for example Isayeva v. Russia at [191]. For a detailed discussion of the law enforcement paradigm in the context of targeted killings see Melzer 2008, pp. 88–90.
- 105.
see for example ICTY, Prosecutor v. Kunarac, Kovac and Vokovic, Case No. IT-96-23 and IT-96-23/1 (Appeals Chamber), 12 June 2002, para 56 cf ‘‘protracted armed violence between governmental authorities and organised armed groups or between such groups within a State’’ Prosecutor v. Dusko Tadic, ICTY Appeals Chamber, IT-94-1-AR72, at para 70.
- 106.
Common Article 3 and Protocol II. see the dissenting commission members in Cyprus v. Turkey; Hampson 2008 p. 556.
- 107.
Hampson 2008, p. 563.
- 108.
Lubell 2005, p. 749.
- 109.
Ozkan and others, App no. 21689/93, Judgment, 6 April 2004.
- 110.
At para 85.
- 111.
At para 87.
- 112.
App nos. 57947/00, 57948/00, 57949/00. Judgment in this case and Isayeva v. Russia, below, was given in conjunction with a third case arising out of Russian military involvement in Chechnya, namely Khashiyev and Akayeva v. Russia app nos. 57942/00 and 57945/00. This case involved the extrajudicial execution of five Chechens by Russian servicemen during the assault on Grozny. In that case the Russian government did not argue justification under any of the exceptions in Article 2(2) (at [140]) but simply denied that its soldiers were responsible for the deaths. The comments regarding the characterisation question made regarding the two Isayeva cases would also apply.
- 113.
Kaye 2005, p. 873.
- 114.
At para 161–167.
- 115.
At para 178.
- 116.
See Articles 14 and 15 of the Fourth Geneva Convention and Articles 59 and 60 of 1977 Protocol I.
- 117.
App no. 57950/00 Judgment of 24 February 2005.
- 118.
At para 19.
- 119.
At para 23.
- 120.
At para 27.
- 121.
At para 180 (emphasis added).
- 122.
Isayeva v. Russia 57950/00 paras 165–67; Isayeva, Yusupova and Bazayeva App nos. 57947/00, 57948/00, 57949/00 paras 155–58, 161–67.
- 123.
See right to life (Sect. 9.5).
- 124.
Abresch 2005, p. 742.
- 125.
McCann and Ors v. UK App No 18984/91 judgment of 27 September 1995 (investigations must be “practical and effective”).
- 126.
See, Sect. 9.3.
- 127.
ECHR Article 2.
- 128.
ICCPR Article 6(1) “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.”
- 129.
In this sense it is noted that in IHL, military necessity is generally a concept which underlies the formal rules. These rules are a balance between military necessity and the “competing” concept of humanity. This means that except where the specific rule makes explicit allowance for military necessity (see for example Hague Regulation 23(g)) a participant to an armed conflict cannot justify a violation of a rule by reference to military necessity. On this point see further Dinstein 2010, pp. 4–8.
- 130.
Isayeva v. Russia 57950/00 at para 181.
- 131.
Abresch 2005, p. 742.
- 132.
Lubell 2005, p. 746
- 133.
ECHR Article 2 see also McCann and Ors v. UK App No 18984/91 judgment of 27 September 1995.
- 134.
Isayeva v. Russia at para 191 “Even when faced with a situation where, as the Government submit, the population of the village had been held hostage by a large group of well-equipped and well-trained fighters, the primary aim of the operation should be to protect lives from unlawful violence. The massive use of indiscriminate weapons stands in flagrant contrast with this aim and cannot be considered compatible with the standard of care prerequisite to an operation of this kind involving the use of lethal force by State agents.”
- 135.
As defined in the Third Geneva Convention, Article 4.
- 136.
Additional Protocol I Article 50(3).
- 137.
Additional Protocol I Article 51(5)(b).
- 138.
Lubell 2005, p. 744.
- 139.
Additional Protocol I Article 51(5).
- 140.
Kaye 2005, p. 881.
- 141.
Organization of American States (OAS), American Convention on Human Rights, “Pact of San Jose,” Costa Rica, 22 November 1969, available at: http://www.refworld.org/docid/3ae6b36510.html [accessed 14 October 2013].
- 142.
that is to say prohibition on the arbitrary deprivation of life is non-derogable; Article 6 ICCPR; Article 4 ACHR.
- 143.
ICCPR Article 4, ACHR Article 27(2) the African (Banjul) Charter On Human And Peoples' Rights , 27 June 1981, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982) does not provide for derogations.
- 144.
Prud’Homme 2007 makes an interesting argument that the requirement in Article 15(1) that “provided that such measures are not inconsistent with its other obligations under international law” requites the ECtHR to “consider international humanitarian law and examine proprio motu whether derogation is consistent with this legal framework” (at p. 365). The lack of derogations to Article 2 means that the issue has not been raised and it does not appear that this argument has been run in regards derogations from other provisions of the convention which have been lodged in relation to armed conflict.
- 145.
Doswald-Beck 2006, p. 883.
- 146.
See, Sects. 9.3.2 and 9.3.3.
- 147.
ECommnHR, Greek Colonels’ Case, 12 Ybk, 1970; p. 71; A v. United Kingdom app no. 3455/05 at para 177; Aksoy v. Turkey, app no. 21987/93, Judgment of 18 December 1996 see also HRC general comment 29 at para 3.
- 148.
ECHR Article 15.
- 149.
See for example Brannigan and McBride no 14553/89, and, most recently A and Others. See r Michaelsen 2012, pp. 287–314.
- 150.
Abresch 2005, p. 745.
- 151.
At paras 133 and 191.
- 152.
See for example McCann; 1990 U.N. Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, 9, U.N. Doc. A/CONF.144/28/Rev.
- 153.
At para 191, emphasis added.
- 154.
Brannigan and McBride v. UK, app no 14553/89.
- 155.
App nos. 6780/74 and 6950/75, Report of the Commission, adopted on 10 July 1976.
- 156.
Hampson 2008, p. 565.
- 157.
Ozkan and others, app no. 21689/93, Judgment, 6 April 2004.
- 158.
Although it is debatable whether Protocol II would have applied in this situation in South Eastern Turkey.
- 159.
- 160.
App no. 27021/08 judgment of 7 July 2011.
- 161.
“In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.” Charter of the United Nations, 24 October 1945, 1 UNTS XVI entered into force 31 August 1965.
- 162.
At para 80.
- 163.
At para 109.
- 164.
At para 107.
- 165.
ibid.
- 166.
Pejic 2011, p. 847.
- 167.
cf Al-Jedda at para 174.
- 168.
- 169.
Pejic 2011.
- 170.
Jörg Kammerhofer, Unearthing Structural Uncertainty through Neo-Kelsenian Consistency: Conflicts of Norms in International Law, 7 (2005) cited in Prud’Homme 2007, p. 393.
- 171.
Milanovic 2012.
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Hartridge, S. (2014). The European Court of Human Right’s Engagement with International Humanitarian Law. In: Jinks, D., Maogoto, J., Solomon, S. (eds) Applying International Humanitarian Law in Judicial and Quasi-Judicial Bodies. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-008-4_9
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