Jurisprudence

Although the European Court of Human Rights was created to guarantee respect for the European Convention on Human Rights, it has declared itself competent to receive applications concerning violations of human rights and humanitarian law in situations of armed conflict and military occupation.

It has thus passed judgment on cases concerning the war in Northern Ireland, Cyprus, Chechnya, Turkey’s antiterrorism legislation, and antiterrorist legislations and practices after the terrorist attacks of 2001 in New York, USA. It has also more recently ruled on the conditions of the UK’s military intervention in Iraq in 2003 as part of the U.S.-led Multi-National Force. The ECHR’s jurisprudence addresses a certain number of legal points that are subjects of international debate.

It recognizes the simultaneous and complementary application in conflict situations of rules stemming from both international humanitarian law and human rights law. It specifies that the application of human rights law is restricted in conflict situations only by official derogations implemented by States in conformity with legal procedures and under the Court’s supervision. Indeed, the Court scrutinizes both the necessity of and the proportionality between restrictions to human rights and the threats to national security invoked by States to justify derogations from the European Convention.

It also confirms the extraterritorial application of obligations relative to human rights in cases where a State exercises de facto control over a foreign person or territory. The Court takes a special stance on the simultaneous and complementary application of human rights law and international humanitarian law. Contrary to those who think that international humanitarian law should take precedence over human rights in conflict situations because it is more specific in such situations ( lex specialis ), the Court adopts a different position. It gives precedence to obligations relative to human rights over those relative to international humanitarian law when these offer more protection to individuals (and are more binding on States) and in cases where they are not in direct contradiction with a contrary obligation foreseen by international humanitarian law. This jurisprudence may create some confusion, as the contents and interpretation of the rules relative to human rights and international humanitarian law are founded on notions that are not always equivalent, such as the right to life. They do, however, help to prevent an opportunistic application by States of the least binding and demanding law in situations of crisis and conflict.

In the case of Aksoy v. Turkey (Application no. 21987/93, Judgment [Chamber], 18 December 1996), the Court set out and scrutinized the derogations from human rights that a State can make for reasons of public order, and especially in the name of the fight against terrorism within its territory. It also stipulated the obligation of prevention and investigation concerning the ill treatment and torture of people detained within this exceptional legal framework.

The Court recognised that “it falls to each Contracting State, with its responsibility for ‘the life of [its] nation,’ to determine whether that life is threatened by a ‘public emergency’ and, if so, how far it is necessary to go in attempting to overcome the emergency.” Nonetheless, the Court recalled that “Contracting Parties do not enjoy an unlimited discretion. It is for the Court to rule whether, inter alia, the States have gone beyond the “‘extent strictly required by the exigencies’ of the crisis” (para. 68).

The Court also considered that “where an individual is taken into police custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation as to the causing of the injury,” failing which torture is presumed (para. 61).

Concerning the obligation to exhaust domestic remedies as a condition of admissibility of an individual application, the Court also recalled that in this domain it retains discretionary powers in interpreting the effectiveness of the remedies as “there is no obligation to have recourse to remedies which are inadequate or ineffective” (para. 52).

In the case of Ergi v. Turkey (Application no. 23818/94, Judgment, 28 July 1998), the Court considered that the responsibility of the State in the protection of the right to life is not confined to circumstances where there is significant evidence that misdirected fire from agents of the State has killed a civilian. It may also be engaged where States fail to take all feasible precautions in the choice of means and methods of a security operation mounted against an opposing group with a view to avoiding and, in any event, to minimizing incidental loss of civilian life (para. 79). In the light of the failure of the authorities of the respondent State to adduce direct evidence on the planning and conduct of the ambush operation, the Court found that it could reasonably be inferred that insufficient precautions had been taken to protect the lives of the civilian population (para. 81). Contrary to what was asserted by the government of Turkey, this obligation is not confined to cases where it has been established that the killing was caused by an agent of the State. In the case under consideration, the mere knowledge of the killing on the part of the authorities gave rise ipso facto to an obligation under Article 2 of the Convention to carry out an effective investigation into the circumstances surrounding the death (para. 82).

In two judgments of 24 February 2005, the Court considered admissible applications filed by victims of crimes committed by the Russian army in Chechnya.

• Issaieva, Youssoupova, and Bazaïeva v. Russia , Application nos. 57947/00, 57948/00, and 57949/00, Decision of the Court (24 February 2005). In this Judgment, the Court decided that Russia had violated Article 2 of the ECHR (right to life), Article 1 Protocol I (protection of property) with regard to one of the applicants, and Article 13 (right to an effective remedy).
• Khachiev and Akaieva v. Russia , Application nos. 57942/00 and 57945/00, Decision of the Court (24 February 2005). In this judgment, the Court decided that Russia had violated Article 2 of the ECHR, Article 3 of the ECHR (prohibition of torture), and Article 13.
• Chamaiev and Others v. Georgia and Russia , Application no. 363778/02, Decision of the Court (12 April 2005). In this judgment, the Court decided that Georgia had violated various articles of the Convention with regard to several applicants, as well as violations of some of its general obligations inherent to the Convention. It also found that Russia had violated some of its conventional obligations.

In the Al-Skeini and Al-Jedda cases, the Court set forth the extraterritorial obligations of the British armed forces involved in the international intervention in Iraq with regard to the application of the Convention, notably as an occupying power, but also with regard to the detention of persons.1

In the Case of Al-Skeini and others v. United Kingdom (Application no. 55721/07, Judgment (Grand Chamber), 7 July 2011), the Court considered that, after the removal from power of the Ba’ath regime, the United Kingdom (with the United States) assumed the exercise of some of the public powers normally to be exercised by a sovereign government in Iraq pending the appointment of an interim Iraqi government. Therefore, according to the Court, the British government remained bound to respect the European Convention in all its acts in Iraq and with regard to the people under its control.The Court specified that a contracting State to the European Convention is bound to apply the Convention even outside of its national territory and toward foreign nationals when it exercises, via its agents, control or authority over a foreign individual and whenever, as a consequence of lawful or unlawful military action, it exercises effective control of an area outside the national territory (paras. 131–40).

The Court recognized two exceptions to the principle of territoriality in the application of the European Convention. First, the Court recalled that the controlling State has the responsibility to secure, within the area under its control , the entire range of substantive rights set out in the Convention and those provided for in the Protocols it has ratified. In determining whether effective control exists, the Court will primarily make reference to the strength of the State’s military presence in the area and its capacity to influence or subordinate the local administrations or authorities in this area (paras. 131–40).

The Court affirmed that there is an “exercise of extra-territorial jurisdiction by a Contracting State when, through the consent, invitation or acquiescence of the Government of that territory, it exercises all or some of the public powers normally to be exercised by that Government” (para. 135).

It further added that the “other exception to the principle that jurisdiction under Article 1 is limited to a State’s own territory occurs when, as a consequence of lawful or unlawful military action, a Contracting State exercises effective control over an area outside that national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention, derives from the fact of such control, whether it is exercised directly, through the Contracting State’s own armed forces, or through a subordinate local administration. . . . The fact that the local administration survives as a result of the Contracting State’s military and other support entails that State’s responsibility for its policies and actions. The controlling State has the responsibility under Article 1 to secure, within the area under its control, the entire range of substantive rights set out in the Convention and those additional Protocols which it has ratified. It will be liable for any violations of those rights” (para. 138). The Court thus recalled the decision it had rendered in its judgment of 10 May 2001 in the case Cyprus v. Turkey (para. 77).

The Court specified that “in certain circumstances, the use of force by a State’s agents operating outside its territory may bring the individual thereby brought under the control of the State’s authorities into the State’s Article 1 jurisdiction. This principle has been applied where an individual is taken into the custody of State agents abroad. . . . Whenever the State through its agents exercises control and authority over an individual, and thus jurisdiction, the State is under an obligation . . . to secure to that individual the rights and freedoms under . . . the Convention that are relevant to the situation of that individual” (paras. 136–37).

According to the Court, “it is a question of fact whether a Contracting State exercises effective control over an area outside its own territory. In determining whether effective control exists, the Court will primarily have reference to the strength of the State’s military presence in the area. . . . Other indicators may also be relevant, such as the extent to which its military, economic and political support for the local subordinate administration provides it with influence and control over the region” (para. 139).

In the case of Al-Jedda v. the United Kingdom (Application no. 27021/08, Judgment [Grand Chamber], 7 July 2011), the Court confirmed the British government’s obligation of extraterritorial application of the European Convention in its military activities in Iraq as an occupying power and in view of its detention of persons in this territory. The Court has developed an interesting interpretation of the principle of primacy of the special law. Indeed, it considers that the rules of the European Convention continue to apply in conflict situations provided that they are not in direct contradiction with those of international humanitarian law. The Court thus gives precedence to the more protective rules of the European Convention over the other more permissive provisions stemming from the law of armed conflicts and to the mandates of international forces under United Nations resolutions permitting occupying powers to intern individuals (paras. 105, 107, and 109).

“The Court does not consider that the language used in this Resolution [1546] indicates unambiguously that the Security Council intended to place Member States within the Multi-National Force under an obligation to use measures of indefinite internment without charge and without judicial guarantees, in breach of their undertakings under international human rights instruments including the Convention” (para. 105). Although Security Council Resolution 1546 authorized the Multi-National Force to take all necessary measures to help maintain security and stability in Iraq, “in the absence of clear provision to the contrary, the presumption must be that the Security Council intended States within the Multi-National Force to contribute towards the maintenance of security in Iraq while complying with their obligations under international human rights law” (para. 105). Besides, in the Court’s view, “it would appear from the provisions of the Fourth Geneva Convention that under international humanitarian law internment is to be viewed not as an obligation on the Occupying Power but as a measure of last resort” (para. 107). Consequently, the United Kingdom remained bound by its obligations with regard to Article 5 of the European Convention: “in the absence of a binding obligation to use internment, there was no conflict between the United Kingdom’s obligations under the Charter of the United Nations and its obligations under Article 5 § 1 of the Convention” (para. 109).

For Additional Information: Costa, Jean-Paul, and Michael O’Boyle. “The European Court of Human Rights and International Humanitarian Law.” In La Convention européenne des droits de l’homme, un instrument vivant: Mélanges en l’honneur de Christos L. Rozakis. Bruxelles: Bruylant, 2011.

Doswald-Beck, Louise. Human Rights in Times of Conflict and Terrorism . Oxford: Oxford University Press, 2011.

Hampson, Françoise. “Relationship between IHL and HR from the Perspective of a Human Rights Treaty Body.” International Review of the Red Cross 871 (2008): 549–72.

Heintze, Hans-Joachim. “The European Court of Human Rights and the Implementation of Human Rights Standards during Armed Conflicts.” German Yearbook of International Law 45 (2003): 60–81.

Milanovic, Marko. Extraterritorial Application of Human Rights Treaties: Law, Principles and Policy. Oxford: Oxford Monographs in International Law, 2011.

Pejic, Jelena. “The European Court of Human Rights’ Al-Jedda Judgment: The Oversight of International Humanitarian Law.” International Review of the Red Cross 883 (September 2011): 837–51.

Sassòli, Marco. “The European Court of Human Rights and Armed Conflicts.” In Human Rights, Democracy and the Rule of Law: Liber Amicorum Luzius Wildhaber , edited by Stephan Breitenmoser et al., 724–25. Zurich: Dike, 2007.

Wildhaber, Luzius. “European Court of Human Rights.” Canadian Yearbook of International Law 40 (2003): 309–22.