10 - The application of the European Convention on Human Rights during an international armed conflict

Summary

We are in danger [because of the European Convention on Human Rights] of producing servicemen whose only purpose will be to deliver tea and sympathy, rather than carry out their proper combat duties.

This chapter will consider how the European Convention on Human Rights (ECHR) impacts upon military operations during an international armed conflict. It will, therefore, confine itself to those situations to which international humanitarian law applies concurrently with it in order to determine how far the ECHR affects the obligations assumed by states during such an armed conflict.

Introduction

A state party to the ECHR may find itself involved in an international armed conflict occurring on its territory, on the territory of another state, on the high seas, or in the airspace over such areas. It may send its armed forces under United Nations or NATO auspices to the territory of a state which is, itself, involved in an international armed conflict. Before considering these various situations it is necessary to analyse the scope of the ECHR to assess its impact upon an international armed conflict.

None of the states parties to the ECHR has entered a reservation as to its applicability should it become involved in an international armed conflict. France, however, has entered a reservation to Article 15(1) whereby a proclamation of a state of siege or emergency by the French government is to be understood as being compliant with Article 15(1), and ten states (Czech Republic, France, Lithuania, Moldova, Portugal, Russian Federation, Slovakia, Spain, Turkey, Ukraine) have made a reservation to a greater or lesser extent of the non-applicability of ECHR obligations to discipline within their armed forces.