The Problems the European Court of Human Rights Faces in Applying International Humanitarian Law

© Springer International Publishing Switzerland 2015
Pat Gibbons and Hans-Joachim Heintze (eds.)The Humanitarian Challenge10.1007/978-3-319-13470-3_11

11. The Problems the European Court of Human Rights Faces in Applying International Humanitarian Law

Joana Abrisketa Uriarte 

Faculty of International Law and International Relations, Pedro Arrupe Institute of Human Rights at Deusto University, Bilbao, Spain



Joana Abrisketa Uriarte

This contribution is an updated version of the Spanish language article Abrisketa Uriarte J (2012) Los problemas del Tribunal Europeo de Derechos Humanos para aplicar el Derecho Internacional Humanitario. Revista de Derecho Comunitario Europeo 43:875–899.

11.1 Introduction

The European Court of Human Rights (ECtHR) is increasingly receiving applications relating to armed conflict or other types of situations of violence. In the past, the most notable cases concerned Northern Ireland or the conflict between Cyprus and Turkey that led to the issuing of several judgments during the 1980s and 1990s. At the moment, one of the most difficult issues for the Court is the involvement of troops belonging to member States of the Council of Europe in foreign countries. The problems stem mainly from the scenario left by the war in Former Yugoslavia and from the conflict in Iraq. A number of cases arising from Russia’s disputes with Chechnya and Turkey’s differences with the PKK (Kurdistan Workers’ Party) have also been examined by the Court recently. In order to deal with these cases, the Strasbourg Court relies almost exclusively on interpreting the European Convention on Human Rights and Fundamental Freedoms (ECHR) and it has therefore become the applicable legal instrument for those types of violent situation.

However, in cases where armed force has clearly been used, the Strasbourg Court could also turn to other sources of international law, such as international humanitarian law (IHL). Nevertheless, it hardly ever does, or at least not obertly. Rather than turning to IHL explicitly, the Court uses what some have called “its own approach” (Guellali 2007, pp. 539–575; Forowicz 2010, pp. 313–351). Namely, it examines armed conflicts in the light of the ECHR, on the understanding that this remains applicable, and so avoids having to deal directly with IHL, which remains lurking in the background to some of its rulings. While this approach is promising approach inasmuch as in that it provides case law on the conduct of hostilities, it does prompt the question: But However, why is the ECtHR resistant reluctant to interpreting IHL when there is no legal obstacle whatsoever to using it as a means of interpreting the provisions of the ECHR?

More specifically this article poses the following questions:

  • To what extent is the ECHR applicable in cases of armed conflicts and violence, and what techniques does the Strasbourg Court employ for interpreting it?

  • What are the constraints preventing the ECHR from being read in light of the standards relating to armed conflicts?

To answer these questions, it is necessary first of all to move away from the idea that IHL has the status of lex specialis with regard to international human rights law (IHRL) in armed conflict situations. That is not how the Court understands lex specialis. As will be seen, none of the variants put forward by the International Law Commission (ILC) (International Law Commission 2006, pp. 37–72) on the relations between different applicable laws are clearly used in Strasbourg case law. Secondly, ECtHR case law must obviously be examined.

11.2 Rationale

This study makes sense for a number of reasons. Firstly, because it incorporates an issue that the Strasbourg Court is yet to resolve, namely the relationship between different corpora iuris (in this case, IHL and IHRL). Two aspects in particular are highlighted in this analysis: the potential interpretative function of IHL, which would be used in line with the recommendations made by the ILC in its report on the Fragmentation of International Law; and the rare and subliminal use made of it by the Strasbourg Court.

Moreover, one of the concerns of the International Committee of the Red Cross (ICRC) is precisely the fact that it is not yet equipped with any judicial mechanism for monitoring the implementation of IHL. It is bodies outside of the organisation itself (not only the Strasbourg Court but also the ad hoc Tribunals for the former Yugoslavia and Rwanda, the International Criminal Court, and even domestic courts established in the context of peace processes1) that interpret IHL. In time this will lead to differences of opinion between the judicial bodies in question. In fact, the International Committee of the Red Cross (ICRC) is trying to find a way of submitting the international obligations assumed under IHL to effective judicial review, but it has yet to establish its own adjudicatory system. It is therefore useful to examine the contribution that bodies outside of the ICRC make to IHL. When exercising its adjudicatory function, the Strasbourg Court becomes, albeit covertly, an interpreter of IHL.

In addition, the Strasbourg Court’s function is to examine individual applications. However, given that the context in which the cases under examination are presented is one of armed conflict, the applications submitted may result in the Court having to contend with rendering judgment on mass human rights violations (Heintze 2002, pp. 60–77). Indirectly, the Court is opened up to issues that go beyond delivering an individual judgment, such as the provision of compensation and reparation to war victims.2

Furthermore, the European Union (EU), which through the Lisbon Treaty established a duty to respect human rights both inside and outside of the organisation, and whose Common European Security Policy is structured around those rights, is not oblivious to the hermeneutic value of the verdicts of the Strasbourg Court. Any future peace missions designed by the EU will be legally framed around the principles and categories of both IHRL and IHL. It is clear that trends in the case law developed by this Court affect both the EU as an organisation and its Member States. The challenge is to uncover what the Strasbourg Court does not mention, namely, the IHL rules which it could use but does not, a task which is certainly more complicated than identifying what the Court does say.

This article therefore examines the scope of ECtHR case law when it has to address issues involving the use of armed force. To that end, the first part of the article provides a summary of the general characteristics of the complementarity between IHL and IHRL, which is generally accepted as being the most orthodox way of understanding the relationship between the two (Gioia 2011, pp. 200–249). This is followed by an examination of that relationship, conducted through the prism of the case law developed by the Strasbourg Court. It focuses on a series of cases stemming from three types of situation: occupations; situations in which the State exercises effective control over part of a foreign territory in the context of an international mission; and, lastly, internal armed conflicts of varying severity. Categorising them in this way makes it possible to assess the different techniques the Court uses when dealing with settings involving armed violence.

11.3 The Complementarity Between International Humanitarian Law and International Human Rights Law

Prior to the adoption of the ECHR, the principle assumed by the international community was that in time of armed conflict only IHL would apply. Other norms of general international law would be set aside. With the idea of retaining that general approach, the ECHR of 1950 was drafted to be applied mainly in peacetime. However, Article 15 of the ECHR,3 with its system of allowing derogation from certain rights, brings what Draper calls “a new philosophy” of the relationship between the law of armed conflict and human rights, a philosophy which marked the beginning of their complementarity (Draper 1972, pp. 326–338).

Article 15 demonstrates two features to the relationship between IHL and IHRL. The first is that IHL is incorporated by reference, when it refers to “other obligations under international law”. Secondly, it stresses that, in the event of derogation, both IHRL and IHL are applicable simultaneously, thereby producing a material interaction between the two. If a State derogates from certain provisions of the ECHR, it must do so in a way that is consistent with the remaining norms of international law. That is where the two bodies of law coincide.

Furthermore, Article 15 (2) states that no derogation may be made from certain provisions of the ECHR. These derogation clauses, says Pérez González, are where IHL and IHRL converge, since the irreducible core of non-derogable rights corresponds to the minimum protection sought in Common Article 3 to the 1949 Geneva Conventions and Protocol I (Pérez González 2006, pp. 13–35) of 1977. With regard to the right to life, in particular, derogation from Article 2 of the ECHR is only authorised in the case of deaths resulting from lawful acts of war. This is a way of saying that, given that the ECHR does not provide criteria for conflict situations, it will make use of those established by IHL in its capacity as lex specialis. In other words, in peacetime the general stipulations of human rights shall apply, and in wartime, when the right to life is concerned, IHL will be used as an interpretational source.

However, aside from the provisions of Article 15, interest in the relationship between IHRL and IHL emerged mainly during the 1970s (Cáceres Brun 2009, pp. 953–969; Meron 2003, pp. 157–178; Pérez González 1998, pp. 315–393). Following a process of convergence extensively set out in legal doctrine and also reflected by various United Nations bodies and even in Protocol I of 1977, today the complementarity between the two bodies of laws is unquestionable. It is just worth noting that IHRL and IHL, though not exhaustive, are generally accepted as being complementary, in the sense that both can apply simultaneously in situations of internal and international armed conflict and each can be used to interpret the other (Sassòli 2007, pp. 375–395; Orakhelashvili 2008, pp. 161–182).

However, neither the intense doctrinal debate on the complementarity between IHL and IHRL nor the contributions made by the International Court of Justice (ICJ) and the Inter-American Court of Human Rights (Gardan 2001, pp. 349–365; Burgorgue-Larsen and Úbeda de Torres 2011, pp. 148–174) have been matched by a similar discussion at the level of Strasbourg case law, which has preferred to avoid making any explicit references to either complementarity or IHL itself.

11.4 Case Law from the European Court of Human Rights Related to Armed Conflict

Against a background in which both doctrine and case law have established the convergence between the two bodies of law, the fact that this has had so little influence on the case law of the Strasbourg Court is striking. There are several different reasons, some legal and some political, why the ECtHR has almost never explicitly referred to elements of complementarity between the ECHR and IHL. The first legal reason for not applying IHL stems from the differences between the two bodies of law and the fact that the Court may consider, stricto sensu, that it does not have subject-matter jurisdiction in the area of IHL because its reference and structural framework is exclusively the ECHR. The second reason is that the clause in Article 15 of the ECHR relating to the derogation of rights has hardly ever been used. If Article 15 is not invoked, then the Court applies the ECHR as a whole. Whether (or not) it is a case of armed conflict is not a matter of law for the Court. It does not engage (at least directly) in classifying situations. Ea res facti, non juris est. The Court therefore manages to elude IHL by not classifying situations. Both of these reasons are certainly correct, legally and formally speaking. However, if the State has not made use of the derogation clause but the context in which the events are taking place is one of armed conflict, could the Court decide motu propio that such a conflict exists and use IHL? I believe that there are grounds for saying that it could. Without losing sight of the mainstay of its reasoning, which has to be the ECHR, it may be useful for the Court to turn to other norms of international law such as IHL (it already, in fact, refers to the International Covenant on Civil and Political Rights, the Convention against Torture and the Convention relating to the Status of Refugees, among others).

The reasons why the Court refrains from applying IHL are mainly political. Applying IHL would mean recognising that a State is incapable of dealing with the armed violence taking place in its country. Expressly alluding to it would stigmatise and undermine the State concerned, causing the latter to show hostility to the Court’s work. That being the case, the following question arises: Is there any kind of procedural technique, within the ECHR system, that could prevent the loss of IHL’s remit?

As indicated in the introduction, the study focuses on three specific problems the Court faced: the first relating to classification of a situation as an occupation; the second relating to the exercise of overall and/or effective control over part of a foreign territory; and thirdly, cases of internal armed conflict. These three categories have been chosen because in each situation different problems arise, therefore also requiring different solutions.

11.4.1 Classification of a Situation as an Occupation

An occupation is defined as being a situation in which a hostile army exercises control over a territory.4 It is common knowledge that in international law an occupation is classed as an international armed conflict, thus giving rise to a particular regime: the occupying State has an obligation to comply with IHL, in particular, the Fourth Hague Convention of 1907 and the Geneva Conventions of 1949. Loizidou v. Turkey5

In the case of Loizidou v. Turkey, the applicant claimed to have lost part of the land belonging to her in Northern Cyprus. Loizidou alleged that, as a consequence of the ongoing occupation of the territory by the Turkish Army and the control the latter exercised over it, it was impossible for her to enter plots of land, thus constituting a violation of both her right to private and family life and her right to peacefully enjoy her property.6 In its defence, the Turkish Government denied responsibility, claiming that the events had taken place in the independent State of the Turkish Republic of Northern Cyprus, a territory over which it did not exercise jurisdiction in the sense meant by Article 1 of the Convention.7 The Court referred to the non-recognition of the Turkish Republic of Northern Cyprus but what is interesting to note for the purposes of this study is that it clearly emphasised that Article 1 of the ECHR is not limited to the national territory of States. It thus rejected Turkey’s arguments relating to the territorial nature of the Convention and attributed responsibility to the Turkish State.8

The Court determined that the State is responsible when, as a consequence of military action, be it legitimate or illegitimate, it exercises effective control (including outside of national territory). This criterion sufficed to attribute the acts in question to Turkey and find it responsible for violating the rights alleged.9 The same criterion could have also been used to claim that the acts in question were associated with Turkey’s occupation of Cyprus. If, as the Court said, Turkey was carrying out a military action and exercised control, why did it not call it an occupation expressis verbis? One might think that the Court evaded classifying Northern Cyprus as an “occupied territory” in order to avoid referring to IHL.10 Varnava v. Turkey11

Of the cases covered in this study, the judgment in Varnava v. Turkey is the one that comes closest to IHL since, for the first time, the Court expressly referred to IHL as being an instrument with which the ECHR could be interpreted. Being one of the most recent judgments (2009), it may indicate a slight change in the position of the Strasbourg Court.

The case concerned the disappearance of nine people after they had been arrested by the Turkish Army during the military operation in Northern Cyprus in 1974. The region was expressly described by the Court as being in “a time of international armed conflict”.12 The Court also said that Article 2 of the ECHR should be interpreted in light of international law, especially IHL. Without spelling it out, it makes (subliminal) reference to the complementarity between IHL and the ECHR.13

In particular, the Court based its reasoning on Article 2 of the Convention and from there arrived at IHL, an approach which marks a step forward in bringing the ECHR and IHL closer together. The Varnava case therefore represents a turning point in the direction of the Court’s case law insofar as in the judgment it attempts to capture and bring together IHL standards, on the one hand, and, on the other, those established by the ECtHR itself concerning the positive obligation to investigate disappearances in light of Article 2 of the ECHR. It could have adhered to a more restrictive normative framework but it did not do so, thus perhaps implying an attempt to start employing a new interpretative framework for the ECHR.

11.4.2 The Exercise of Effective Control Over Part of a Foreign Territory

The notion of “State jurisdiction” as used in Article 1 of the ECHR is one of the most complex in treaty law and also one of the cornerstones of the ECHR as a whole. Since the beginning of the twenty-first century in particular, Article 1 of the Convention has prompted substantive developments in cases where one or several States are operating on foreign territory as multinational forces. Below are three significant cases in which the Court was faced with the question of the extraterritorial applicability of the ECHR. Banković v. Belgium and Others14

The Banković case stemmed from a complaint brought by six inhabitants of Belgrade (Serbia) against seventeen NATO member States who are also members of the ECHR. The applicants alleged that the aerial bombardment of the headquarters of Serbian radio and television by NATO forces in April 1999 constituted a violation of the rights to life (16 people died) and freedom of expression by the defendant States. The application was based on the argument that the States involved had “jurisdiction” over the victims as a result of the criterion of “effective control”,15 as had been determined in the Loizidou judgment. However, the arguments contained in the application did not convince the Court and it unanimously declared it inadmissible ratione personae, since it considered that there was no jurisdictional link between the victims and the defendant States. In the words of the Court, the territory in which the bombing took place was not in the “legal space” of the member States insofar as NATO did not exercise “effective control” over the territory that was bombed.16 The Court thus stressed the essentially territorial nature of State jurisdiction, with extraterritorial applicability of the Convention being acceptable only in exceptional circumstances, something which it underlined emphatically.17

The Court adopted a restrictive interpretation of effective control, showing extreme caution when applying the ECHR to the actions of a State outside of its territory. In Banković it interprets the notion of jurisdiction as being inextricably tied to territoriality. The criticisms made of the decision stem from this extremely restrictive interpretation (Rüth and Trilsch 2003, pp. 170–171). However, Banković also represented the starting point for a debate around the following questions posed by Judge Jean Paul Costa: Can effective control really be deemed to exist when State troops are acting outside of their national territory? How does this relate to the concept of occupation contained in the 1907 Hague rules and the Fourth Geneva Convention of 1949? Does the Court have “jurisdiction” to examine crimes committed by State air forces that are participating in peace operations (Costa and O’Boyle 2011, pp. 107–129)? Having chosen not to enter into these issues, the Court “territorialized” the Convention’s jurisdiction (Cohen-Jonathan 2002, p. 1073) and consequently declared the application inadmissible.18

The curious thing about the Banković judgment, as far as this study is concerned, is that, in its reasoning, the Court used the 1949 Geneva Conventions to argue that if the drafters of the ECHR had wanted to grant jurisdiction that was as far-reaching as that proposed by the applicants, then they could have adopted a wording that was the same or similar to Article 1 of the 1949 Geneva Conventions, which requires the Contracting Parties to respect and ensure respect for the conventions “in all circumstances”.19 It is paradoxical that reference to the 1949 Geneva Conventions is made only to say that the ECHR is not the same as them, given that it is a case that could have been interpreted on the basis of the principles related to the prohibition of indiscriminate attacks and the principle of distinction between combatants and civilians, for which both the ECHR and IHL are relevant. Behrami and Behrami v. France and Saramati v. France, Germany and Norway20

The Behrami and Saramati

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