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Reconciling the rules of international humanitarian law with the rules of European human rights law

Published online by Cambridge University Press:  25 October 2016

Claire Landais  and
Léa Bass
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Abstract

States party to the European Convention for the Protection of Human Rights and Fundamental Freedoms that engage in military operations abroad face an increased risk to be held responsible for violations of the Convention, given the relatively recent case law adopted by the European Court of Human Rights. This article examines some of the issues raised by the concurrent applicability of international humanitarian law and European human rights law. It also seeks to identify ways to reconcile these two different, but not incompatible, branches of international law.

Keywords

European Convention on Human RightsEuropean Court of Human RightsEuropean human rights lawextraterritorial armed conflictsinternational humanitarian lawright to lifeadministrative detention
Type
Challenges in modern wars
Information
International Review of the Red Cross , Volume 97 , Issue 900: The evolution of warfare , December 2015 , pp. 1295 - 1311
Copyright
Copyright © icrc 2016 

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References

1 See European Court of Human Rights (ECtHR), Issa and Others v. Turkey, Application no. 31821/96, 16 November 2004; ECtHR, Al-Saadoon and Mufdhi v. the United Kingdom, Application no. 61498/08, 2 March 2010; ECtHR, Al-Skeini v. the United Kingdom (Grand Chamber), Application no. 55721/07, 7 July 2011; ECtHR, Al-Jedda v. the United Kingdom (Grand Chamber), Application no. 27021/08, 7 July 2011; ECtHR, Jaloud v. the Netherlands (Grand Chamber), Application no. 47708/08, 20 November 2014.

2 See ECtHR, Jaloud v. the Netherlands, above note 1; ECtHR, Al-Saadoon and Mufdhi v. the United Kingdom, above note 1; ECtHR, Al-Skeini v. the United Kingdom, above note 1; ECtHR, Al-Jedda v. the United Kingdom, above note 1.

3 High Court of Justice of England and Wales (EWHC), Serdar Mohammed v. Ministry of Defence, [2014] EWHC 1369 (QB), 2 May 2014; Court of Appeal of England and Wales (EWCA), Mohammed v. Secretary of State for Defence; Rahmatullah and Others v. Ministry of Defence and Foreign and Commonwealth Office, [2015] EWCA Civ 843.

4 See Frédéric Sudre, Droit européen et international des droits de l’homme, PUF, Paris, 11th ed., 2012, pp. 209–210.

5 Hampson, Françoise, “Direct Participation in Hostilities and the Interoperability of the Law of Armed Conflict and Human Rights Law”, International Law Studies, Vol. 87, No. 1, 2011, p. 192 Google Scholar: “If some rules are perceived to be unrealistic, this is likely to lessen respect for those rules that can be applied in practice”.

6 Nicolas Hervieu, “La jurisprudence européenne sur les opérations militaires à l’épreuve du feu”, La Revue des droits de l’homme, Actualités Droits'Libertés, 20 October 2014, para. 52, available at: http://revdh.revues.org/890 (all internet references were accessed in September 2016); see ECtHR, Hassan v. the United Kingdom, (Grand Chamber), Application no. 29750/09, 16 September 2014.

7 ECtHR, Loizidou v. Turkey (Merits), Reports 1996-VI, 18 December 1996, para. 43; ECtHR, Varnava and Others v. Turkey (Grand Chamber), Application no. 16064/90, 18 September 2009, para. 185; ECtHR, Hassan v. the United Kingdom (Grand Chamber), above note 6, 16 September 2014, para. 102.

8 Article 19 of the ECHR provides that the Court is responsible for ensuring “the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto”. It does not therefore a priori have jurisdiction to monitor compliance with IHL. However, in some cases brought before the Court, the respondent States themselves referred to the applicability of IHL in their argument. Furthermore, drawing on the case law made by other international judges, the Court has developed techniques that allow it to try cases relating to human rights violations committed during armed conflicts and therefore to address the interplay between EHRL and IHL. See Olivia Martelly, “L’évolution historique de la jurisprudence de la Cour européenne des droits de l'homme face aux conflits armés”, in Les interactions entre le droit international humanitaire et le droit international des droits de l’homme, Proceedings of the conference organized by the Department of Legal Affairs of the French Ministry of Defence on 22 October 2014, pp. 16–30.

9 European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 222, 4 November 1950 (entered into force 3 September 1953), (ECHR), Art. 2. Article 2 of the ECHR establishes, first and foremost, a negative obligation binding on States and their agents not to take the lives of individuals. In its case law, the Court has also drawn two positive obligations from this provision, one substantive and the other procedural: States must protect the lives of individuals within their jurisdiction (substantive positive obligation) and they must also conduct an effective, independent and impartial investigation when a person is killed (procedural obligation), regardless of whether a State or individuals are responsible for the act in question.

10 Article 2 of the ECHR provides, in substance, that no one may be deprived of their life intentionally, except when it results from the use of force that is absolutely necessary to: (a) ensure the defence of any person from unlawful violence; (b) effect a lawful arrest or prevent the escape of a person lawfully detained; or (c) take lawful action to quell a riot or insurrection. See ECtHR, McCann and Others v. the United Kingdom (Grand Chamber), 27 September 1995, para. 161; ECtHR, Ergi v. Turkey, 28 July 1998, Application no. 23818/94, para. 82; ECtHR, Jaloud v. the Netherlands, (Grand Chamber), above note 1,  20 November 2014, para. 186.

11 See note 9 above.

12 Frédéric Sudre (ed.), Les grands arrêts de la Cour européenne des droits de l’homme, PUF, Paris, 6th ed., 2011, p. 142, citing ECtHR, Abdullah Yılmaz v. Turkey, Application no. 21899/02, 17 June 2008, para. 57.

13 An application was lodged with the Court in the case of Pritchard v. the United Kingdom, but was struck from the docket of the Court on 18 March 2014, as the parties had reached an out-of-court settlement. It is worth noting that the Court did not, at the outset, rule the application inadmissible on the grounds that it was manifestly ill-founded. See ECtHR, Pritchard v. the United Kingdom (Decision), Application no. 1573/11, 18 March 2014.

14 On 18 and 19 August 2008, ten French soldiers belonging to the United Nations Security Council-mandated International Security Assistance Force operating in Afghanistan were killed, while on patrol, in an ambush in the Uzbin Valley, carried out as part of an enemy offensive. This was the biggest loss of life for the French Army since the Beirut Drakkar barracks bombing in 1983. The families of eight of the French soldiers killed in the ambush filed a complaint against an unnamed person. The charges were endangering the life of another and failing to prevent a crime, because they considered that their deaths had occurred as a result of negligence attributable to the military hierarchy. The investigating judge chose to amend the charge to involuntary manslaughter. The proceedings have not yet been concluded. At this stage, subject to appeals, the French courts have not recorded any convictions. See Delage, Pierre-Jérôme, “La chambre criminelle et l'embuscade d'Uzbin”, in Revue de sciences criminelles, No. 2, 2012, pp. 353–360 Google Scholar; Judgement No. 12–81.197, 10 May 2012 in Court of Cassation, Criminal Chamber, “Bulletin des Arrêts” (official bulletin of judgments), No. 5, pp 182 ff., May 2012; Sabrina Lavric, “Recevabilité de l'action des familles de soldats français tués en Afghanistan”, Dalloz Actualité, 22 May 2012. In this judgement, the Criminal Chamber ruled that the complaint with an application for the determination of damages filed by the families of the soldiers killed during the Uzbin Valley ambush was admissible. This admissibility would no longer be recognized, however, under the new wording of Article 698–2 of the Code of Criminal Procedure, as amended by the Military Planning Act of 18 December 2013. See Act 2013–1168 of 18 December 2013 on planning for the period 2014–2019, containing several provisions on defence and national security, available at: http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000028338825&categorieLien=id.

15 See the judgement handed down by the UK Supreme Court in the case Smith and Others v. Ministry of Defence, [2013] UKSC 41, available at: https:// www.supremecourt.uk/decided-cases/docs/UKSC_2012_0249_Judgment.pdf.

16 See Nicolas Hervieu, “La jurisprudence de la Cour européenne des droits de l'homme sur les opérations militaires: entre louables progressions et regrettables imperfections”, in Les interactions entre le droit international humanitaire et le droit international des droits de l’homme, Proceedings of the conference organized by the Department of Legal Affairs of the French Ministry of Defence, above note 8, citing ECtHR, Al-Skeini and Others v. the United Kingdom, above note 1, para. 168; ECtHR, Vassis and Others v. France, Application no. 62736/09, 27 June 2013; ECtHR, Hassan and Others v. France, Application no. 46695/10, 4 December 2014; ECtHR, Ali Samatar and Others v. France, Application no. 17110/10, 4 December 2014.

17 For a case involving an international armed conflict situation, see ECtHR, Varnava and Others v. Turkey, above note 7, para. 185. For a situation that could maybe have been classified as a non-international armed conflict, see ECtHR, Isayeva and Others v. Russia, Application no. 57947/00, 24 February 2005, para. 181.

18 ECtHR, Varnava and Others v. Turkey, above note 7, para. 185.

19 ECtHR, Al-Skeini v. the United Kingdom, above note 1, para. 162.

20 F. Sudre, above note 12, pp. 125–131.

21 ECtHR, Isayeva and Others v. Russia, above note 17, para. 181.

22 ECtHR, McCann and Others v. the United Kingdom, above note 10, para. 149.

23 ICRC, Expert Meeting: The use of force in armed conflicts, interplay between the conduct of hostilities and law enforcement paradigms, Report, pp. 8–9, available at: https:// www.icrc.org/eng/assets/files/publications/icrc-002-4171.pdf.

24 ECtHR, McCann and Others v. the United Kingdom, above note 10, para. 194.

25 See the ICRC study, Henckaerts, Jean-Marie and Doswald-Beck, Louise (eds), Customary International Humanitarian Law, Volume I, Rules, Cambridge University Press, Cambridge, 2005, Rule 15, pp. 51–55 CrossRefGoogle Scholar; see Expert Meeting: The use of force in armed conflicts, interplay between the conduct of hostilities and law enforcement paradigms, above note 23, pp. 8–9.

26 See Expert Meeting: The use of force in armed conflicts, interplay between the conduct of hostilities and law enforcement paradigms, above note 23.

27 See F. Sudre, above note 4, p. 33.

28 See Expert Meeting: The use of force in armed conflicts, interplay between the conduct of hostilities and law enforcement paradigms, above note 23.

29 ECtHR, Isayeva and Others v. Russia, above note 17, para. 199.

30 These developments do not necessarily mean that a finding of violation is not made in such cases, as the Court ruled that a violation of Article 2 had occurred in the case of Isayeva and Others v. Russia referred to above.

31 See International Court of Justice (ICJ), Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, para. 25; see ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, para. 106; see ICJ, Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgement, ICJ Reports 2005, para. 216.

32 See O. Martelly, above note 8, p. 24, citing ECtHR, Al-Skeini v. the United Kingdom, above note 1, paras 90–91; ECtHR, Hassan v. the United Kingdom, above note 6, paras 35–37.

33 Administrative detention or internment is a non-punitive measure that may be taken for security reasons in armed conflict. See Pejic, Jelena, “Procedural principles and safeguards for internment/administrative detention in armed conflict and other situations of violence”, International Review of the Red Cross, Vol. 87, No. 858, 2005, pp. 375–391 CrossRefGoogle Scholar.

34 Serdar Mohammed v. Ministry of Defence, above note 3; Mohammed v. Secretary of State for Defence; Rahmatullah and Others v. Ministry of Defence and Foreign and Commonwealth Office, above note 3. See also: Pejic, Jelena “The European Court of Human Rights’ Al-Jedda judgment: the oversight of international humanitarian law”, International Review of the Red Cross, Vol. 93, No. 883, 2011, pp. 365–382 CrossRefGoogle Scholar; Rona, Gabor, “Is There a Way Out of the Non-International Armed Conflict Detention Dilemma?”, International Law Studies, Vol. 91, No. 1, 2015, pp. 32–59 Google Scholar.

35 ECtHR, Hassan v. the United Kingdom, above note 6, para. 104.

36 Ibid. , para. 100.

37 Ibid. , para. 104.

38 Serdar Mohammed v. Ministry of Defence, above note 3, para. 243.

39 See in particular, G. Rona, above note 34, pp. 32–59; Marko Milanovic, “Hassan v. United Kingdom, IHL and IHRL, and other News in (Extra-) Territoriality and Shared Responsibility”, EJIL: Talk! – Blog of the European Journal of International Law, 18 December 2013, available at: http://www.ejiltalk.org/hassan-v-united-kingdom-ihl-and-ihrl-and-other-news-in-extra-territoriality-and-shared-responsibility/.

40 Article 15(1) of the ECHR provides as follows: “In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law”.

41 See ECtHR, Lawless v. Ireland, Application no. 332/57, 1 July 1961, para. 28.

42 J. Pejic, above note 34, p. 850.

43 ECtHR, Al-Jedda v. the United Kingdom, above note 1, para. 40.

44 ECtHR, Issa and Others v. Turkey, above note 1. However, the Court had already ruled that a State party could exercise its right of derogation only in a part of its own territory. See ECtHR, Sakik and Others v. Turkey, Application nos 87/1996/67/897–902, 26 November 1997, para. 39. However, some authors do believe that extraterritorial derogations are permissible. See in particular Marko Milanovic, “Extraterritorial Derogations from Human Rights Treaties in Armed Conflict”, in Nehal Bhuta (ed.), The Frontiers of Human Rights: Extraterritoriality and its Challenges, Oxford University Press, Oxford, 2016 (forthcoming).

45 Article 15(3) of the Convention provides that: “Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed”.

46 ECtHR, Aksoy v. Turkey, Application no. 21987/93, 18 December 1996, para. 68; ECtHR, Brannigan and McBride v. the United Kingdom, Application nos 14553/89 and 14554/89, 26 May 1993, para. 43.

47 ECtHR, A and Others v. the United Kingdom (Grand Chamber), Application no. 3455/05, 23 September 1998, para. 184.

48 Ibid.

49 Ibid.

50 ECtHR, Brannigan and McBride v. the United Kingdom, above note 46, paras. 62–66.

51 ECtHR, Aksoy v. Turkey, above note 46, para. 82.

52 Ibid. , para. 83.

53 See ECtHR, Al Dulimi and Montana Management v. Switzerland, Application no 5809/08, 21 June 2016, para. 140.

54 See ECtHR, Al-Jedda v. the United Kingdom, above note 1, paras 101–102.

55 See Ibid. , paras 101–102. In the Al-Jedda judgement, the Court adopted a narrow reading of Article 103 of the United Nations Charter, considering that it is implied that a mere authorization granted by the UNSC to breach an international obligation is not sufficient to allow derogation from it; the resolution would have to contain an explicit duty to derogate from the obligations in question. However, it is very likely that the Court was simply responding to the argument advanced by the respondent government, which maintained the existence of such a duty in the Security Council resolution to justify its treatment of the applicant in this case. This is what seems to emerge from the Hassan judgement. See ECtHR, Hassan v. the United Kingdom, above note 6, para. 99.

56 Serdar Mohammed v. Ministry of Defence, above note 3, paras 193–207 and para. 211; Mohammed v. Secretary of State for Defence; Rahmatullah and Others v. Ministry of Defence and Foreign and Commonwealth Office, above note 3, paras 158–163.

57 ECtHR, Hassan v. the United Kingdom, above note 6, para. 104.

58 Serdar Mohammed v. Ministry of Defence, above note 3,  paras 110–111.

59 See Article 10 of the status of forces agreement (SOFA) signed between France and Mali in 2013; Decree no. 2013–364 of 29 April 2013 concerning the publication of the agreement in the form of an exchange of letters between the Government of the French Republic and the Government of Mali determining the status of the “Serval” force, signed in Bamako on 7 March 2013 and in Koulouba on 8 March 2013, available at: https:// www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000027376103 (in French).

60 The Court considers that where deprivation of liberty is concerned it is particularly important that the general principle of legal certainty be satisfied. It is therefore essential, according to the Court's case law, that the conditions for deprivation of liberty under domestic and/or international law be clearly defined and that the law itself be foreseeable in its application, so that it meets the standard of “lawfulness” set by the Convention, a standard that requires that all law be sufficiently precise to avoid all risk of arbitrariness and to allow the citizen – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances of the case, the consequences which a given action may entail. See, among others, ECtHR, Medvedyev and Others v. France (Grand Chamber), Application no. 3394/03, 29 March 2010, paras 80–103.

61 ECtHR, Guide on Article 5 of the Convention – Right to liberty and security, p. 13, available at: http://www.echr.coe.int/Documents/Guide_Art_5_ENG.pdf.

62 ECtHR, Ciulla v. Italy, Application no. 11152/84, 22 February 1989, para. 36.

63 See ICRC, Strengthening international humanitarian law protecting persons deprived of liberty: Concluding Report, June 2015, EN 32IC/15/XX, p. 29: “A significant number of States considered that the most appropriate articulation of grounds for internment was ‘imperative reasons of security’”.

64 Despite the fact that both the Government and the Third party did refer to this principle. See ECtHR, Hassan v. the United Kingdom, above note 6.

65 Serdar Mohammed v. Ministry of Defence, above note 3, para. 287.

66 See Vienna Convention on the Law of Treaties, 155 UNTS 331, 23 May 1969 (entered into force 27 January 1980), Arts 30(3), 53, 59 and 64.

67 Silvia Borelli, “The (Mis)-Use of General Principles of Law: Lex Specialis and the Relationship between International Human Rights Law and the Laws of Armed Conflict”, in Laura Pineshi (ed.), General Principles of Law: The Role of the Judiciary, Springer, 2015, p. 3, available at: http://ssrn.com/abstract=2575076.

68 Systemic interpretation refers to a reading that “seeks to elucidate the meaning of a fragment of the text with reference to another text or texts”. See Alland, Denis and Rials, Stéphane (eds), Dictionnaire de la culture juridique, PUF, Paris, 2003, p. 844 Google Scholar. See also Distefano, Giovanni and Mavroidis, Petros C., “L'interprétation systémique: le liant de l'ordre international”, in Guillod, Olivier and Müller, Christoph (eds), Pour un droit équitable, engagé et chaleureux: Mélanges en l’honneur de Pierre Wessner, Basel, Neuchâtel, 2011, pp. 743–759 Google Scholar.

69 S. Borelli, above note 67, p. 10.

70 ECtHR, Hassan v. the United Kingdom, above note 6, para. 102.

71 See ECtHR, Ireland v. the United Kingdom, Application no. 5310/71, 18 January 1978, para. 194; ECtHR, A and Others v. the United Kingdom, above note 47, paras 162–163; ECtHR, Al-Jedda v. the United Kingdom, above note 1, paras 99–100; ECtHR, Hassan v. the United Kingdom, above note 6, paras 104–105.

72 ICRC background document, Meeting of All States on Strengthening International Humanitarian Law Protecting Persons Deprived of their Liberty, Geneva, 27–29 April 2015, p. 3, available at: https://www.icrc.org/en/document/strengthening-compliance-ihl-meeting-all-states-geneva-switzerland-27-29-april-2015.

73 Mohammed v. Secretary of State for Defence; Rahmatullah and Others v. Ministry of Defence and Foreign and Commonwealth Office, above note 3, para. 202.

74 See ICRC, Opinion Paper, Internment in Armed Conflict: Basic Rules and Challenges, November 2014, p. 7: “One view is that a legal basis for internment would have to be explicit, as it is in the Fourth Geneva Convention; in the absence of such a rule, IHL cannot provide it implicitly. Another view, shared by the ICRC, is that both customary and treaty IHL contain an inherent power to intern and may in this respect be said to provide a legal basis for internment in NIAC. This position is based on the fact that internment is a form of deprivation of liberty which is a common occurrence in armed conflict, not prohibited by Common Article 3, and that Additional Protocol II – which has been ratified by 167 States – refers explicitly to internment”.

75 ECtHR, Hassan v. the United Kingdom, above note 6, paras. 104–105.

76 Mohammed v. Secretary of State for Defence; Rahmatullah and Others v. Ministry of Defence and Foreign and Commonwealth Office, above note 3, para. 173.

77 Article 42 (1) of the Fourth Geneva Convention provides that “[t]he internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary”.

78 Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, 1974–1977, Vol. IV, p. 333, available at: http://www.loc.gov/rr/frd/Military_Law/RC-dipl-conference-records.html

79 Ibid. , p. 350, paras 10 and 17.

80 32nd International Conference of the Red Cross and Red Crescent, Resolution 1: Strengthening international humanitarian law protecting persons deprived of their liberty, 32IC/15/R1, Geneva, 8–10 December 2015. Available in the Reports and documents section of this edition of the Review.

81 Article 8(2) of the ECHR states that any restriction to the right to privacy must be “in accordance with the law”. A legal basis is therefore needed for interferences with Article 8 of the ECHR. According to the Court's case law, the legal basis in question must be sufficiently precise and contain a measure of protection against arbitrariness by public authorities. When the Court finds a violation on the basis that the powers provided by the legislation were not ‘in accordance with the law’, it considers that there is no need to analyse whether the measures were ‘necessary’. See Doswald-Beck, Louise, Human Rights in Times of Conflict and Terrorism, Oxford University Press, Oxford, 2011, p. 454 CrossRefGoogle Scholar.

82 In the judgement in Hassan v. the United Kingdom, the Court held that Article 5(3) had no application, because the applicant had not been detained in accordance with the provisions of paragraph (1)(c) of Article 5, that is, with a view to prosecution. See ECtHR, Hassan v. the United Kingdom, above note 6, para. 106.

83 ICRC, Detention in non-international armed conflict, Meeting of all States, Chair's Conclusions, 27–29 April 2015, p. 3, available at: https://www.icrc.org/en/document/strengthening-compliance-ihl-meeting-all-states-geneva-switzerland-27-29-april-2015.

84 See N. Hervieu, above note 6, para. 72.