Kristiina Honko, PhD Student, University instructor, University of Tampere
Introduction
This paper focuses on the relationship between International Humanitarian Law (IHL) and the European Convention of Human Rights (ECHR) and the evolution of their application in times of armed conflict. It particularly examines the recent case law of the European Court of Human Rights (ECtHR or Court) in order to ascertain its view on the interaction between ECHR and IHL. The application of IHL in the ECtHR in the context of armed conflicts is marked by an unstable evolution. The paper examines how the ECtHR’s case law has recently evolved following the Court’s more receptive approach and explicit use of IHL.
Case law
The ECHR clearly applies in times of armed conflict.[1] The ECtHR has had opportunities to apply the ECHR in the context of armed conflicts several times.[2] In spite of its increased involvement with cases relating to armed conflicts, the ECtHR has, until recently, shown a notable reluctance to clarify the relationship between the ECHR and IHL. The Court has, however, not had any insurmountable legal obstacle to the application of IHL, and the reasons for the Court’s reluctance to refer to IHL has not been clear.[3] It is claimed that the Court’s approach is at least partly rooted in political reasons, and explicit application of IHL to certain confrontations could be considered as an exacerbation of the situation.[4]
Recently, the ECtHR has been more receptive in its case law than in the past. In the case of Korbely v. Hungary, the ECtHR already used common Article 3 of the Geneva Convention as a basis for its reasoning.[5] This was a notable change from previous case law, which was marked by indirect references to the IHL framework.[6] In the cases of Al-Jedda v. the UK[7] and Hassan v. the UK,[8] the ECtHR seems to continue this development. Both cases address the UK’s human rights obligations during the British military operation in Iraq and discuss the interplay between the ECHR and IHL.
In the case of Al-Jedda, the ECtHR found the UK to be in breach of Article 5 of the ECHR, on the right to liberty and security of the person. The case has specific significance because for the first time, the ECtHR directly interpreted specific IHL treaties. The Court’s implicit finding in relation to IHL was that the provisions of the Fourth Geneva Convention did not constitute a valid legal basis for detention in international armed conflict. This finding was based on the ECtHR’s conclusion that the Fourth Geneva Convention does not impose an obligation of internment on parties to such conflicts. It interpreted Article 43 of The Hague Regulations not as an obligation of the Occupying Power to use internment but as a measure of last resort.[9]
Hassan v. the UK, in turn, reflects an extremely important turning point in the ECtHR’s history. For the very first time, the Court was explicitly requested by a Member State to “disapply its obligations under Article 5 or in some other way to interpret them in the light of powers of detention available to it under international humanitarian law”.[10] The case concerned the deprivation of liberty of a young male during active hostilities, and the question before the Court was whether the internment could be considered consistent with Article 5 of the ECHR despite the absence of any derogation by the UK.
The Court’s interpretation of the ECHR left room for the broader powers that States have under IHL. Relying on Article 31 of the Vienna Convention,[11] the majority of judges stated:
…by reason of the co-existence of the safeguards provided by international humanitarian law and by the Convention in time of armed conflict, the grounds of permitted deprivation of liberty set out in subparagraphs (a) to (f) of that provision should be accommodated, as far as possible, with the taking of prisoners of war and the detention of civilians who pose a risk to security under the Third and Fourth Geneva Conventions.[12]
The ECtHR used three major arguments to come to this conclusion.
- State practice used as a tool for interpretation under the Article 31, § 3(b) of the Vienna Convention with regard to the deprivation of liberty during international armed conflict. The Court found that States have not derogated from Article 5 of the ECHR pursuant to Article 15 of the ECHR when engaged in international armed conflicts or when occupying enemy territory. It stated that this constant practice reflected an agreement amongst States that when parties in conflict lawfully rely on Geneva Convention III & IV to intern individuals and adhere to the safeguards against arbitrariness provided therein, the deprivation of liberty cannot simultaneously violate the right to liberty under the ECHR, and there would be no need to derogate.[13]
- Interpretation of the ECHR in harmony with other rules of international law, including IHL in line with Article 31, §3(c) of the Vienna Convention and the case law of the International Court of Justice.[14] The Court ruled that “the lack of a formal derogation under Article 15 does not prevent the Court from taking account of the context and the provisions of international humanitarian law when interpreting and applying Article 5 in this case”.[15]
- A symbiotic approach, which accommodates both bodies of law by applying human right’s law through the lens of IHL. The Court stated that “the safeguards under the Convention continue to apply, albeit interpreted against the background of the provisions of international humanitarian law”.[16] It also declared that “by reason of the co‑existence of the safeguards provided by international humanitarian law, the grounds of permitted deprivation of liberty of Article 5 § 1 should be ‘accommodated, as far as possible’, with the taking of prisoners of war and the detention of civilians who pose a risk to security under the Third and Fourth Geneva Conventions”.[17]
EVALUATION
Overall, the Court’s approach to IHL has been inconsistent. While the ECtHR has been of the view that ECHR continues to apply in armed conflicts, it has been unwilling to take any traceable position on whether or not the Court can and should use IHL to interpret the ECHR or directly find violations of IHL.[18]
Therefore, perhaps the most important issue in the case of Hassan is that the Court finally offered its view and clarified its position on the interplay between IHL and ECHR. The Court also rejected the UK’s principal argument that IHL, as the lex specialis, precluded jurisdiction arising under Article 1 of the ECHR.[19] If the Court had accepted such arguments, it would have displaced the entire ECHR where IHL applies. Instead, the Court made the concurrent application of both regimes possible and developed a more nuanced, case-by-case approach that looks at the specific right at issue as well as specific circumstances of each case.[20] By doing so, the Court also prevented the scenario in which the ECHR would, in turn, completely overrule IHL. It also guaranteed that the ECHR remained relevant in armed conflict situations and left room for military necessity to meet the specific military and security challenges that arise during armed conflict.[21]
The debate on the interaction between international human rights law and IHL in armed conflicts is the one of the responses of our time to the dynamics of war and law. There is a growing awareness of what is right and wrong in the context of armed conflicts, and nowadays it can only be identified by reference to both IHL and international human rights law.[22] At the same time, the concepts of war and peace have become blurred by the changing characteristics of warfare. Furthermore, the more complex, changing character of warfare raises the need to take into account the application of both IHL and international human rights law. Hence, it can be argued that it was about time the ECtHR adopted a more receptive approach on IHL in order not to be disconnected from reality. Even if the situations of armed conflicts are sensitive and the Court acts under major political pressure, the Court should not abandon IHL in its reasoning. After all, IHL has been conceived by States specifically to regulate armed conflicts. However, development in law, policy, state practice, and jurisprudence also confirm that human rights law has a significant role in regulating armed conflict situations.
ECHR and IHL are both constantly evolving, and in the demands of modern warfare therein probably lies their value. The Court should develop its jurisprudence to use these two bodies of law together so that they complement and strengthen each other. Therefore, flexibility and adaptability are still needed by the Court for a more receptive and dynamic approach to the interpretation of IHL in ECHR to ensure the law is used to protect those who are influenced by armed conflicts.
[1] It is widely accepted that human rights law and IHL are complementary in the sense that they are both applicable in situations of armed conflict. However, in times of war or other public emergency, Contracting States can enter a derogation under Article 15 of the ECHR to limit their obligations under the ECHR. See, for example, Lawless v. Ireland 1st July 1961.
[2] For example, Loizidou v. Turkey (1995); McCann and Others v. the UK (1995); Kurt v. Turkey (1998); Bankovic and Others v. 17 NATO countries (2001); Ilascu and Others v. Moldova and Russia (2004); Isayeva, Yusupova and Bazayeva v. Russia (2005); Markovic and Others v. Italy (2006); Al-Skeini and Others v. the UK (2007), Al-Jedda v. the UK (2008); Korbely v. Hungary (2008); Kononov v. Latvia (2010); Medvedyev and Others v. France (2010); Al-Saadoon and Mufdhi v. the UK (2010), Hassan v. the UK (2014); and Jaloud v. the Netherlands (2014).
[3] See, for example, Gioia, Andrea, The Role of the European Court of Human Rights in Monitoring Compliance with Humanitarian Law in Armed Conflict (Oxford 2011) pp. 245-249, and Droege, Cordula, “The Interplay between International Humanitarian law and International Human Rights Law in Situation of Armed Conflict”, Israel Law Review, Vol. 40, No. 2 2007, pp. 310–355.
[4] Forowicz, Magdalena, The Reception of International Law in the European Court of Human Rights (Oxford 2010) p. 348.
[5] Korbely v. Hungary (2008).
[6] Forowicz, Magdalena, The Reception of International Law in the European Court of Human Rights (Oxford 2010) p. 347.
[7]Al-Jedda v. the UK (2011).
[8] Hassan v. the UK (2014).
[9] Al-Jedda v. the UK paras 42–43 and 107.
[10] Hassan v. the UK para 99.
[11] Vienna Convention on Law of Treaties, 1969.
[12] Hassan v. the UK para 104.
[13] Hassan v. the UK para 101.
[14] Hassan v. the UK para 102.
[15] Hassan v. the UK para 103.
[16] Hassan v. the UK para 104.
[17] Ibid.
[18] Lubell, Noam, “Challenges in applying human rights law to armed conflict”, International Review of the Red Cross Vol 87 No 860 2005. See also Orakhelashvili, Alexander, “The Interaction between Human Rights and Humanitarian Law: Fragmentation, Conflict, Parallelism, or Convergence?” The European Journal of International Law Vol. 19 no. 1 2008.
[19] Hassan v. the UK para 77.
[20] See Hill-Cawthorne, Lawrence, “The Grand Chamber Judgment in Hassan v. UK”, Blog of the European Journal of International Law, 16 September 2014.
[21] However, the decisions of Al-Jedda and Hassan are also criticized. See, for example, Pejic, Jelena, “The European Court of Human Rights’ Al-Jedda judgment: the oversight of international humanitarian law”, IRRC, Volume 93 Number 883 September 2011 p. 851; Ekins, Richard, Morgan, Jonathan, and Tugendhat, Tom, “Clearing the Fog of Law: Saving our armed forces from defeat by judicial diktat”, Policy Exchange 2015; and Bernard, Frederic, “Deprivation of liberty in armed conflicts: the Strasbourg Court’s attempt at reconciling human rights law and international humanitarian law in Hassan v. UK”, ECHR Blog 2 October 2014.
[22] Oberleitner, Geir, Human Rights in Armed Conflicts, Law, Practice, Policy (Cambridge 2015) p. 360.
Comments