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The approach of the European Commission and Court of Human Rights to international humanitarian law

Published online by Cambridge University Press:  23 November 2010

Aisling Reidy
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Extract

The ever-increasing membership of the Council of Europe, and the accompanying growth in the number of States party to the European Convention on Human Rights (ECHR), promises to create fresh challenges for the new single European Court of Human Rights which will begin to sit full-time in Strasbourg as of 1 November 1998. Speculation varies with regard to the type of challenges that the new Court will have to face, but one which cannot be ignored is the likelihood that the new Court will have to come to terms with more cases arising from situations of conflict. Judge Jambrek, urging judicial restraint and conservatism in a dissenting opinion, warned that the Court may have to look at what happened in the Croat Region of Kraijna, in the Republika Srpska, in other parts of Bosnia and Herzegovina or in Chechnya. If the Court is so required, many cases may involve issues which call for consideration of international humanitarian law.

Type
50th anniversary of the Universal Declaration of Human Rights: Human rights and international humanitarian law
Information
International Review of the Red Cross (1961 - 1997) , Volume 38 , Special Issue 324: 1948—1998 Human rights and international humanitarian law , September 1998 , pp. 513 - 529
Copyright
Copyright © International Committee of the Red Cross 1998

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References

1 See Protocol 11 which replaces the current two-tiered system (Commission and Court) with a single full-time Court.

2 Partly dissenting opinion of Judge Jambrek, Loizidou v. Turkey, judgment of 18 December 1996, European Human Rights Reports (EHRR), Vol. 23, p. 543. In view of the requirement that applications to the European Convention machinery must be submitted within six months of a final domestic remedy having been exhausted (Article 26 or Article 35 as amended by Protocol 11) or within six months of the alleged violation if there is no effective remedy, it is unlikely that Strasbourg will have to deal with events which happened at the height of hostilities in any of these regions. Pursuant to Annex 6 of the Dayton Agreement, the ECHR is applicable in Bosnia and Herzegovina and is subject to the supervision of the Human Rights Commission for Bosnia and Herzegovina.

3 The debate concerning the applicability of human rights law in the context of an armed conflict has already been covered extensively in other literature. See in particular Weissbrodt, D. and Hicks, P. L., “Implementation of human rights and humanitarian law in armed conflict”, IRRC, January-February 1993, pp. 120–138 CrossRefGoogle Scholar , and L. Doswald-Beck and S. Vite, “International humanitarian law and human rights law”, ibid., pp. 94–119; Hampson, F. J., “Human rights and humanitarian law in internal conflicts”, in Meyer, M. (ed), Armed conflict and the new law, London, 1989, p. 55 Google Scholar ; Draper, G.I.A.D., “The relationship between the human rights regime and the law of armed conflicts,” Israeli Yearbook of Human Rights, Vol. 1, 1971, p. 191 Google Scholar ; Suter, K., “Human rights in armed conflicts”, Revue de droit pénal militaire et de droit de la guerre, Vol. XV. 1976, p. 394.Google Scholar

4 Cyprus v. Turkey, 6780/74 and 6950/75 (first and second applications), 2 D & R 125, pp. 136–137 (1975). The responsibility of a State Party can be engaged by acts and omissions of their authorities which produce effects outside their own territory. See X & Y & Z v. Switzerland, 7289/75 & 7349/76, 9 D & R 57 (1977); Drozd and Janousek v. France and Spain, ECtHR Series A 240, p. 29, para. 91. Application No. 31821/96, pending before the Commission, concerns allegations of unlawful killings by armed forces of the Republic of Turkey while on an operation in northern Iraq. Victims of acts committed by Italian or Belgian troops in Somalia could also have brought a complaint under the ECHR against the respective States for violations carried out during the UN operations in Somalia.

5 Cyprus v. Turkey, ibid.; Loizidou v. Cyprus (preliminary objections), ECtHR Series A 310, para. 62 (1995), and Loizidou v. Cyprus (merits), ECtHR judgment of 18 December 1996, para. 52, reprinted in EHRR, Vol. 23, p. 513; most recently Cyprus v. Turkey 25781/94 (fourth application), 86 D & R 104 (1996).

6 To date there has never been a derogation in time of war, though Greece, Ireland, Turkey and the United Kingdom have sought to claim the existence of a public emergency. — On Article 15 in general, see van Dijk, P. and Van Hoof, G.J.H., Theory and practice of the European Convention on Human Rights, 2nd ed., Kluwer, 1990, pp. 548–560 Google Scholar ; Harris, D. J., O'Boyle, M. and Warbrick, C., Law of the European Convention on Human Rights, Butterworths, 1995, pp. 489–507.Google Scholar

7 P. van Dijk and G.J.H. Van Hoof, ibid., p. 555. D.J. Harris, M. O'Boyle and C. Warbrick, ibid., p. 502: “The obvious sources of treaty obligations are the [International Covenant on Civil and Political Rights] and the Geneva Red Cross Conventions”. Farinha, J. Pinheiro, “L'article 15 de la Convention”, in Matscher, and Petzold, (eds), Protecting Human Rights: The European Dimension, Studies in honour of Gerard J. Wiarda, Carl Heymanns Verlag KG, 1989, pp. 521–529 Google Scholar : “La solidarité internationale impose que les engagements des États soient toujours respectes - engagements découlant de traités, coutumes internationales ou de principes généraux de droit international. Parmi les engagements qui doivent être observés, même en cas de guerre, nous soulignerons ceux que le droit humanitaire (Conventions de Genève et de La Haye) établit.” — All parties to the European Convention are also party to the 1949 Geneva Conventions.

8 Lawless v. Ireland, ECtHR Series A 3, paras. 40–41. In the case of Ireland v. United Kingdom, the Irish Government did apparently raise the question of the compatibility of British legislation in Northern Ireland with the Geneva Conventions. See Harris, O'Boyle and Warbrick, supra (note 6), p. 502, footnote 4. However, the Court itself only held that there was nothing in the data before the Court to suggest the UK disregarded such obligations in that case. In particular, the Irish Government never supplied to the Commission or the Court precise details on the claim formulated in its pleadings. See Ireland v. UK, ECtHR Series A 25, para. 222. In Brannigan and McBride v. UK, ECtHR Series A 258-B, 26 May 1993, the applicants had pleaded that the derogation was in violation of Article 4 of the International Covenant on Civil and Political Rights to which the UK was also a party, at paras. 67–73.

9 The Commission has held that a State cannot rely on Article 15 in the absence of some formal and public declaration of the state of emergency. See Cyprus v. Turkey, Report of the Commission, 4 EHRR 482 and 556, para. 528.

10 Articles 17 and 18 are also relevant with respect to limiting measures aimed at the restriction or destruction of rights.

11 The only complaints arising out of an international armed conflict have been in the context of the Turkish invasion of Cyprus in 1974. Complaints from state-of-emergency regions include complaints from Northern Ireland and south-eastern Turkey.

12 That is, that the situation was not one of isolated and sporadic acts of violence. For example, the UK has never accepted that common Article 3 or Protocol II applies to Northern Ireland. See Hampson, F., “Using international human rights machinery to enforce the international law of armed conflicts”, Revue de droit péncil militaire et de droit de la guerre, Vol. XXXI, 1992, pp. 117 and 127.Google Scholar

13 Cyprus v. Turkey, supra (note 9).

14 In advocating a holistic approach to the jurisdiction issues which arose in cases from northern Cyprus. Judge Pettiti stated that “[a]n overall assessment of the situation … would make it possible to review the criteria on the basis of which the UN has analysed both the problems whether to recognise northern Cyprus as a State and the problem of the application of the UN Charter (occupation, annexation, territorial application of the Geneva Conventions in northern Cyprus, conduct of international relations).” See Loizidou v. Turkey (preliminary objections), 23 March 1995, ECtHR Series A 310.

15 Excluding complaints concerning freedom of expression, there are, at the time of writing, nine judgments from the Court in which the violations involved stem from the emergency regime in south-eastern Turkey: Akdivar and others v. Turkey, judgment of 18 September 1996, 23 EHRR 143, and Aksoy v. Turkey, judgment of 18 December 1996, 23 EHRR 553, both in Reports of Judgments and Decisions, 1996-IV; Aydin v. Turkey, judgment of 25 September 1997, 25 EHRR 251, and Mentes v. Turkey, judgment of 28 November 1997, both in Reports of Judgments and Decisions, 1997-IV; Kaya v. Turkey, judgment of 19 February 1998; Selcuk and Asker v. Turkey, judgment of 24 April 1998; Gundem v. Turkey, judgment of 25 May 1998; Kurt v. Turkey, judgment of 25 May 1998, and Tekin v. Turkey, judgment of 9 June 1998 — all to be reproduced in Reports of Judgments and Decisions, 1998.

16 Mentes, para. 12, Aydin, para. 14, Selcuk and Asker, para. 9: supra (note 15).

17 Akdivar, paras. 13–14, Aksoy, paras. 8–9, Gundem, para. 9: supra (note 15).

18 Turkey has not ratified Additional Protocol II (on non-international armed conflict).

19 For the margin of appreciation concept see W. J. Ganshof van der Meersch, “Le caractere “autonome” des termes et la “marge d'appréciation” des gouvernements dans l'interprétation de la Convention européenne des Droits de l'homme”, in Matscher and Petzold (eds), supra (note 7), pp. 201–220; Mahoney, P., “Judicial activism and judicial self-restraint in the European Court of Human Rights: Two sides of the same coin”, Human Rights Law Journal, Vol. II, 1990, pp. 57–88.Google Scholar

20 It falls in the first place to each contracting State, with its responsibility for the life of its citizens, to determine whether their life is threatened by a public emergency and if so how far it is necessary to go in attempting to overcome the emergency. By reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle in a better position than the international judge to decide both on the presence of such an emergency and on the nature and scope of derogations necessary to avert it. In this matter Article 15(1) leaves the authorities a wide margin of appreciation. Ireland v. UK, ECtHR Series A 25, para. 207 (1978).

21 Denmark, Norway, Sweden and the Netherlands v. Greece, Report of the Commission of 5 November 1969, Yearbook, Vol. 12, 1969, p. 113, para. 229.

22 Cyprus v. Turkey, supra (note 9).

23 F. Hampson, supra (note 12), pp. 125 and 6.

24 The low point of the Court and Commission in this regard is widely considered to be Brannigan and McBride v. UK, ECtHR Series A 258-B (1993). See dissenting opinion of Judge Makarczyk.

25 Abella v. Argentina, 18 November 1997, 1-AmCHR, Report 55/97, Case 11, p. 137, para. 149.

26 The Republic of Cyprus has brought four inter-State cases against Turkey, arising out of the situation in northern Cyprus: Application Nos. 6780/74, 6950/75, 8007/77 and 25781/94. There are also a number of individual cases which have been heard by or are pending before the Commission and Court, the first of which was Loizidou, see supra (note 5). In the most recent inter-State case (No. 25781/94, 86 D & R 104) and in the individual cases, it would seem that no pleas in terms of humanitarian law have been submitted to the Commission.

27 Supra (note 9), paras. 208–211.

28 Ibid., para. 486.

29 Ibid.

30 Cyprus v. Turkey, Application No. 8007/77, Report of 4 October 1983, Resolution DH (92) 12, 2 April 1992, reprinted in 5 EHRR 509.

31 Ibid., p. 557.

32 Ibid., pp. 557 and 558.

33 Akdivar and others v. Turkey, Mentes and others v. Turkey, Selcuk and Asker v. Turkey—supra (note 15).

34 By letter dated 6 August 1990 to the Secretary-General of the Council of Europe, Turkey entered a derogation to Articles 5, 6, 8, 10, 11 and 13 of the Convention. By letter of 5 May 1992, Turkey informed the Secretary-General that the derogation continued to apply only in respect of Article 5.

35 Akdivar, paras. 83 – 87; Mentes, paras. 70 – 73; Selcuk and Asker, paras. 83 – 87 — supra (note 15). As in the case of Mentes and others, only Article 8 had been raised by the applicants, there was no finding of a violation of Article 1 of Protocol 1.

36 In the oral submissions to the Court, the applicants submitted that the acts of the security forces were in violation of humanitarian law. See Selcuk and Asker, Verbatim Record of the hearing, 26 January 1998.

37 Judgment of 24 April 1998, paras. 77 and 78.

38 Ibid., para. 79.

39 Ibid., para. 75.

40 E.g. Arts. 32, 33 and 49 of the Fourth Geneva Convention; Art. 51 of Additional Protocol I; Art. 3 common to the four Geneva Conventions; Arts. 13 and 17 of Additional Protocol II.

41 Supra (note 37), paras. 97 and 98.

42 Ibid., para. 96.

43 See Arts. 49 and 50, First Geneva Convention; Arts. 50 and 51, Second Geneva Convention; Arts. 129 and 130, Third Geneva Convention; Arts. 146 and 147, Fourth Geneva Convention; Arts. 85 and 86, Additional Protocol I. — On the obligation to prosecute for violations of the laws of armed conflict, see Graditzky, T., “Individual criminal responsibility for violations of international humanitarian law committed in non-international armed conflict,” IRRC, No. 322, March 1998, p. 29 CrossRefGoogle Scholar ; Sharp, W.G. Sr., “International obligations to search for and arrest war criminals: government failure in the former Yugoslavia?”, Duke Journal of Comparative and International Law, Vol. 7, 1997, p. 411 Google Scholar ; Planner, D., “The penal repression of violations of international humanitarian law applicable in non-international armed conflict”, IRRC, No. 278, September-October 1990, p. 409.CrossRefGoogle Scholar

44 This is on the basis that Articles 2 and 3 are non-derogable provisions. It does not mean that, when evaluating whether a particular act or omission would violate either article, the differing circumstances — peacetime, state of emergency, or war — could not be taken into account to see whether the threshold of severity to attract the application of either article had been met. This could conceivably be the case with regard to certain conditions of detention, but there is less scope for flexibility in determining whether positive obligations to protect the right to life differ for detainees in times of war or peace. International humanitarian law, in particular the Third Geneva Convention, includes specific protection against exposure of detainees to life-threatening measures.

45 See the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, 1987.

46 Ibid., Article 17(3).

47 Cyprus v. Turkey, supra (note 9), para. 313.

48 Ibid.

49 Ibid.>, p. 564, para. 7.

50 In the case of Aydin v. Turkey, supra (note 15), the Court found that the rape of the applicant in detention was torture (para. 86), a finding which has implications for the prosecution of persons for violation of the laws of armed conflict or persons indicted for war crimes.

51 Supra (note 49), p. 565, para. 2.

52 Aksoy v. Turkey, supra (note 15), Commission Report of 23 October 1995 and judgment of 18 December 1996. On the derogation, see note 34.

53 See Commission Report, para. 182, and Court judgment, para. 78. Both the Commission and Court already confirmed that Zeki Aksoy, having been subjected to such treatment as suspension in the form of Palestinian hanging, had been tortured in violation of the Convention. See Commission Report, para. 169 and Court judgment, para. 64. In the later case of Kurt v. Turkey, judgment of 25 May 1998, which concerned a disappearance, the Court spoke of prompt judicial intervention leading to the detection and prevention of life-threatening measures or serious ill-treatment which violate the fundamental guarantees contained in Articles 2 and 3 of the Convention (para. 123).

54 Kurt v. Turkey, supra (note 53), para. 125.

55 E.g. Akdeniz and others v. Turkey, Application No. 23954/94, Decision on admissibility of 3 April 1995; Cakici v. Turkey, Application No. 23657/94, Decision on admissibility of 15 May 1995; Timurtas v. Turkey, Application No. 23531, Decision on admissibility of 11 September 1995; Tas v. Turkey, Decision on admissibility of 14 March 1996.

56 Gulec v. Turkey, No. 21593/93, Decision on admissibility of 30 August 1994, Commission Report of 17 April 1997; Cagirge v. Turkey, No. 21895/93, Decision on admissibility of 19 October 1994, Commission Report of July 1995, 82 D & R 20; Isiyok v. Turkey, No. 22309/93, Decision on admissibility of 3 April 1995, Commission Report of 31 October 1997; Ergi v. Turkey, No. 23818/94, Decision on admissibility of 2 March 1995, 80 D & R 157, Commission Report of 20 May 1997.

57 McCann and others v. UK, ECtHR Series A 324, para. 194. This test has been employed by the Commission and Court in several cases since, e.g., Andronicou and Constantinou v. Cyprus, No. 25052/94, judgment of 9 October 1997, 25 EHRR 491, para. 171.

58 Deprivation of life is not regarded as inflicted in contravention of Article 2 when it results from the use of force which is no more than absolutely necessary in defence of any person from unlawful violence, or in order to effect a lawful arrest, or to prevent the escape of a person lawfully detained, or in action lawfully taken for the purpose of quelling a riot or insurrection.

59 Cagirge, supra (note 56).

60 Isiyok, supra (note 56).

61 Ergi v. Turkey, supra (note 56). Commission Report, paras. 145–149.

62 Ibid., para. 145.

63 Ibid., pp. 145 and 149. The applicant also submitted that the rules of engagement and training of the security forces violated Article 2 (para. 140), but the Commission did not address this point. The same submissions were made to the Court (see Verbatim Record of the hearing on 21 April 1998, p.17).

64 Ergi v. Turkey, judgment of 28 July 1998 (not yet published), para. 79, emphasis added.

65 Lawful and unlawful killings in international and non-international conflict are very helpfully categorized by F. Hampson, supra (note 12), pp. 128–130. At its most basic, the author indicates two criteria which can be used to determine the unlawfulness of a killing: (a) the unlawfulness of the target, and (b) absence of proportionality, whether of the attack itself, the weapon used or the manner of its use (loc. cit., p. 128).

66 Gulec v. Turkey, supra (note 56), paras. 235–236. Heard by the Court on 25 March 1998.

67 Supra (note 65).

68 Supra (note 66), para. 235.

69 Ibid.

70 Kaya v. Turkey, judgment of 19 February 1998, para. 91. The Court reiterated this jurisprudence in its judgment in Ergi v. Turkey, supra (note 64), paras. 85 and 98.

71 Ibid., para. 107.

72 Aksoy, para. 98; Aydin, para. 103; Tekin, para. 66 - supra (note 15).

73 Kurt, para. 140, ibid.

74 Mentes, para. 81; Selcuk and Asker v. Turkey, para. 96 - ibid