FACULTY!OF!LAW! Lund!University!!!! Lovisa!Rova!!! The!European!Court!of!Human!Right s! Engagement!with!International!Humanitarian! Law!!!!!!!!!!

Transcription

1 ! FACULTY!OF!LAW! Lund!University!!!! Lovisa!Rova!!! The!European!Court!of!Human!Right s! Engagement!with!International!Humanitarian! Law!!!!!!!!!! JAMM04!Master!Thesis!! International!Human!Rights!Law! 30!higher!education!credits!!! Supervisor:!Markus!Gunneflo!! Term:!Spring!2015!!

2 Summary International human rights law and international humanitarian law are traditionally two distinct branches of law, one dealing with the protection of individuals, the other with the conduct of parties to an armed conflict. There is today a recognition that international human rights law is applicable in situations of armed conflict, in parallel with international humanitarian law. The aim of this Master thesis is to determine the significance of international humanitarian law that the European Court of Human Rights gives to it. At the outset the historical relationship between the bodies of law is explained and briefly the conceptual difference between international human rights law and international humanitarian law addressed. The thesis further undertakes an examination of the selected judgments and decisions, and systematizes the patterns of the use of international humanitarian law. The empirical research demonstrates that the European Court of Human Rights does interpret the relationship in diffent ways depending on the context and that the interpretation to some extent has changed over time. More specifically, the Court has in situations amounting to internal armed conflicts only applied the Convention for the Protection of Human Rights and Fundamental Freedoms and the Protocols, without any clear reference to international humanitarian law, although awarding some flexibility in the application of the Convention with regard to the situation's character. In international armed conflicts the Court has found that the provisions should, to some extent, be interpreted and applied in the light of the relevant provisions of international humanitarian law. This marks a difference from its earlier case law where the Court did not consider the Convention to be the prevailing body of law in situations of international armed conflicts. The thesis contends that Court s approach to international law reflects the specific nature of the European Convention on Human Rights as a regional human rights instrument. The fragmentation of international law in the European Court of Human Rights' jurisprudence, with reference to international humanitarian law, appears, to some extent, inevitable. But recent cases may suggest otherwise in relation to international armed conflicts. In this connection, it is suggested that the European Court of Human Rights must continue to adhere to the the object and purpose of the Convention for the Protection of Human Rights and Fundamental Freedoms and the Protocols when delivering its forthcoming judgements in order not to water down its provisions but to preserve to a maximum degree of the full enjoyment of the rights and freedoms guaranteed therein, caution must be taken as it is foremost human rights that might lose something in the process

3 Abbreviations ACHR Application doc. ECHR ECtHR ed. HUDOC IACmHR IACtHR ICCPR ICESCR ICJ ICTY para. VCLT American Convention on Human Rights application document Convention for the Protection of Human Rights and Fundamental Freedoms (often called European Convention on Human Rights ) European Court of Human Rights editor Human Rights Documentation Inter-American Commission of Human Rights Inter-American Court of Human Rights International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights International Court of Justice International Criminal Tribunal for the former Yugoslavia paragraph Vienna Convention on the Law of Treaties - 2 -

4 Contents 1. Introduction Background Research Question and Disposition Materials and Methodology Delimitations The History of the Relationship Between International Humanitarian Law and International Human Rights Law The conceptual difference between IHRL and IHL Two Separate Bodies of Law Human Rights in Armed Conflict IHL and IHRL more in common than earlier thought? The relationship between international humanitarian law and human rights in the practice of the European Court of Human Rights The possibility to derogate from the ECHR Cyprus v. Turkey Engel and Others v. The Netherlands McCann and Others v. United Kingdom The International Court of Justice on the question of international humanitarian law as lex specialis Cases from Eastern Turkey Güleç v. Turke Ergi v. Turkey Bankovic and others v. Belgium and Others Ahmet Özkan and others v. Turkey The International Court of Justice in a new lex specialis case Armed conflict in Chechnya Isayeva and Others v. Russia Case The Isayeva v. Russia Case The Markovic and Others v. Italy Case The Korbely v. Hungary Case Kononov v. Latvia Varnava and others v. Turkey The conflict in Iraq Al-Skeini v. United Kingdom Case Al-Jedda v. United Kingdom Case Hassan v. United Kingdom Case Jaloud v. Netherlands Patterns of the use of HL by the European Court of Human Rights The evolution of the case law of the European Court The American system of Human Right Implications Jurisdiction of the ECtHR Conclusions Bibliography Table of Cases Table of Treaties

5 1. Introduction 1.1 Background "When people hear the phrase 'human rights', they think of the highest moral precepts and political ideals. And they are right to do so. They have in mind a familiar set of indispensable liberal freedoms, and sometimes more expansive principles of social protection. But they also mean something more. The phrase implies an agenda for improving the world, and bringing about a new one in which the dignity of each individual will enjoy secure international protection." 1 There is no international treaty 'which cannot raise some question of interpretation. Most disputes submitted to international adjudication involve some problem of treaty interpretation.' 2 The Convention for the Protection of Human Rights and Fundamental Freedoms 3 [hereinafter the ECHR] is not an exception. The jurisdiction of the European Court of Human Rights [hereinafter the Court or the ECtHR] extends 'to all matters concerning the interpretation and application of the ECHR and the Protocols thereto'. 4 Since the Teheran Conference 5 there is a recognition that international human rights law [hereinafter IHRL] is applicable in situations of armed conflict, in parallel with international humanitarian law [hereinafter IHL]. The exact relationship between these two branches of international law as well as the extent of extraterritorial application of human rights law are given different descriptions by international Courts, States and commentators. That the application of the ECHR raises questions of its interpretation in armed conflicts is apparent from the extensive scholarly writing on the subject. Taking a broader stance there is even more debate on how IHRL and IHL interrelate. The work written on the subject in relation to the ECHR is often focused on a certain provision of the Convention or of a certain conflict (such as those in Eastern Turkey and Chechnya, and more recently in Iraq). It is my intention to review leading case law from the ECtHR that can help depict the ECHR's significance in armed conflicts, during a longer period of time in order to assess not only the current practice but also to the evolution of the relationship of IHL and the ECHR. However, to refer to the question of the relationship of human rights to humanitarian law as only a question of judicial interpretation is misleading. The manner in which human rights law applies in armed conflicts has become a matter of controversy. In an article on the interplay between international law and politics Koskenniemi wrote that 'much about the search for political direction today takes the form of jurisdictional conflict, struggle between competing expert vocabularies, each equipped with a specific bias. If such regimes are bold in ambition, and able to rely on the support of some powerful sector of the political world, then they may succeed in changing the general bias in the law'.' 6 There is still no clear answer to the question of how the two bodies of law interrelate today during situations of armed conflicts and there is thus a question what effect the jurisprudence of the ECtHR will have. The aforesaid have awoken my keen interest in the judicial application of IHL in the ECtHR. My focus on the case law of the ECtHR is not an example of narrow-mindedness or an effect of eurocentrism. 1. Moyn, The last utopia: human rights in history, Aust, Modern treaty law and practice, European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221, entered into force Nov. 4, 1950 [hereinafter ECHR]. 4. ECHR, article 32(1). 5. Resolution XXIII Human Rights in Armed Conflicts, adopted by the International Conference on Human Rights. Teheran, 12 May Later adopted by the UN General Assembly, Respect for human rights in armed conflicts, 19 December 1968, A/RES/ Koskenniemi, The Politics of International Law 20 Years Later,

6 However, due to the fact that it does not exist a World Court of Human Rights, and the ECtHR generally offers a voluminous case law, in comparison with its regional counterparts, makes it an interesting subject to examine. Furthermore, the uncovering of the Court's case law and of its modes of work is likely to assist other interpreters, including other international Courts. 7 Its jurisprudence is also closely followed by Courts within the Council of Europe, by reason of a commitment-based legitimacy Research Question and Disposition Previous research on the relationship between international human rights law and international humanitarian law and its application has been conducted, as mentioned above. The research has generally been focused on a specific conflict or specific cases, 9 others are focused on specific provisions 10. In this regard my master thesis is somewhat different, as I will try to delineate the evolution of the relationship between the governing norms in an armed conflict in the jurisprudence of the ECtHR, my master thesis thus concerns its significance specifically for the ECtHR. Moreover, my thesis will cover the latest jurisprudential developments. The research question of my thesis is as follows: How does the ECtHR interpret the relationship of the European Convention on Human Rights and international humanitarian law in its judgements? It presupposes a three-stage answer: 1) to explain the general relationship between IHL and IHRL, with a historical perspective in order to study the evolution of the relationship over time 2) to examine how the Court applies or otherwise uses IHL in its cases, or choses to disregard the possible application of IHL to an armed conflict, and 3) having discovered and classified the patterns, to reveal its significance for the European system of human rights protection. The hypothesis is that it should be possible to find an evolutionary progress over time in the case law of the ECtHR in its interpretation of the Convention. This is based on the idea that the ECHR should be an instrument of development and improvement rather than an 'end game' treaty, which froze the state of affairs that existed 60 years ago. 11 It needs to be clarified that with evolutionary progress I do not necessarily mean the interpretation doctrine used by the Court known as evolutive interpretation, 12 which is part 7. Forowicz, The Reception of International Law in the European Court of Human Rights, Letsas, The ECHR as a living instrument, See e.g. Abresch, 'A Human Rights Law of Internal Armed Conflict'; Tamura, The Isayeva Cases of the European Court of Human Rights: The Application of International Humanitarian Law and Human Rights Law in Non-International Armed Conflicts; Naert, The European Court of Human Rights Al-Jedda and Al-Skeini Judgments: an Introduction and Some Reflections. 10. Orakhelashvili, The Interaction between Human Rights and Humanitarian Law: Fragmentation, Conflict, Parallelism, or Convergence?; Arai-Takahashi, Fair Trial Guarantees in Occupied Territory the Interplay between International Humanitarian Law and Human Rights Law. 11. Dzehtsiarou, European Consensus and the Evolutive Interpretation of the European Convention on Human Rights, Evolutive and dynamic interpretation allows contemporary context to be taken into account and is based on the rule in Article 31(3)(b) of the Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 [hereinafter VCLT]. The idea that the ECHR is a living instrument that must be interpreted according to present-day conditions has been a central feature of the Courts case law. The ECtHR confirmed this principle in relation to the ECHR in the Tyrer case, where the Court found that standards considered to be acceptable before might not be tolerabel today. The often quoted passage finds that: 'the Convention is a living instrument (...) which must be interpreted in the light of present-day conditions'. See Tyrer v United Kingdom, Application number 5856/72, jugement, 25 April 1978, Series A, vol 26, para 31. Letsas argues that 'the Court is not expanding or inflating the scope of the ECHR rights by treating the Convention as a living instrument; rather, it - 5 -

7 of the 'living instrument' principle. It is used in order to ensure the realization of rights guaranteed by the ECHR and the Protocols in view of existing circumstances. I do not suggest in my hypothesis that the evolutionary progress must be leading to a more expansive or generous understanding of the scope of fundamental rights enshrined in the Convention over time, it might limit or restrict the level of protection, but my hypothesis is just that an evolution is possible to detect. 13 The Master thesis consists of four chapters. In the current chapter, I briefly introduce the reader to the topic, outline and methods of research. Chapter 2 is devoted to the a short historic overview of the relationship between IHL and International Human Rights law. In chapter 3, I describe and analyse the cases in which the ECtHR puts into practice the area of law, to ascertain what role IHL has so far played in the Court's decisions. There will also be references to the work of other international Courts in order to investigate if the approach taken by the ECtHR differs in any aspect. In chapter 4, I delineate the major patterns of judicial interpretation of the ECHR, this is also the chapter were the conclusions are drawn. 1.3 Materials and Methodology In my research, I will use the descriptive and analytical methods which lead to the presentation of the law, including the case law, and when the background of the two bodies of law is described, as it stands. The comparative method will be used when there is recourse to the jurisprudence of other international Courts (in particular the International Court of Justice [hereinafter ICJ], and the Inter-American Court of Human Rights [hereinafter the IACtHR]), which serves to show the picture of judicial interpretation of other international treaty bodies and to accentuate the traits of the ECtHR. Finally, I will use the logical method of induction to delineate the patterns of interpretation in the case law of the ECtHR Delimitations There are a number of interesting elements of an inquiry into the relationship between IHL and HRL, and the application of the latter in armed conflict. Examples of elements are whether IHRL conventions, such as ECHR, apply extraterritorially, and, if so, in what circumstances and to what extent. This question is to a limited extent addressed due to the time frame and the limited space available. The domestic law of the State Parties is also likely to be of importance. This question is not addressed. Also not addressed in this thesis, but potentially important is whether an armed conflict is an international armed conflict, a non-international armed conflict or a conflict having some hybrid character. Due to the fact that the Court seldom considers the question if a certain situation is to be regarded as an armed conflict or not I will not examine if a specific situation amounts to a what is the formal definition used for a classification of armed conflict unless the Court reasoning give way to it. 14 Nor will my thesis deal with the question of rules of interpretation in the VCLT. What however is addressed, is the question of if IHRL conventions, more specifically ECHR, apply de jure in armed conflict, or ought to be applied as a matter of discretion, the relationship between IHL and HRL, and in some part the question of derogations from the ECtHR. The issue would often require a provision-by-provision analysis, for a deeper insight into the question of in what way the interpretation and lex specialis issue would affect a specific situation and give different effects. However, as I am trying to depict the general relationship in the case law of ECtHR I will not do discovers what these human rights always meant to protect'. 13. An example of when the Court decided to lower the protection offered by Article 5 of the Convention to the individual claimant is Mangouras v Spain, Application number 12050/04, Judgement [GC], 28 September A brief overwiev of different characterizations of armed conflicts will be given i section 2.1. The conceptual difference between IHRL and IHL

8 that. I intend not to deal with the cases as such, and I will not attempt to assess the position of international law towards the different conflicts in general. Rather, what I intend to do is to analyse the reasoning of the Court with regard to one particular aspect, namely application of the European Convention on Human Rights to situations of armed conflicts. The aim is not to undertake an examination of which of IHRL and IHL is better or more appropriate to regulate the conduct of States in situations of armed conflict. My choice of cases depends on whether the ECtHR relies on IHL in a given judgment or decision, the cases are found with the ECtHR's search-tool Human Rights Documentation [hereinafter HUDOC]. The European Court of Human Rights HUDOC Portal is an information system which provides access to the case-law of the ECtHR. The bounds of my search in the HUDOC are as follows: Bearing in mind that certain cases require a three-month period to come into force, I set the upper time limit, 31 December 2014, for all cases. Thus, the cases pronounced in 2015 will not be covered. The cases must be available in English. Despite the fact that I am aware of the possible existence of relevant cases which are available only in French, they will not be examined due to the linguistic barrier. 'International Humanitarian Law' is typed as the key words with the view of selecting only the cases in which the Court explicitly relies on or refers to this area of law as a starting point. These requirements are met by 287 cases. However, search within the texts of the judgements reveals the inaccuracy of the search engine: the key words do not necessarily concern international humanitarian law, and only 11 results are directly relevant cases of the ECtHR. Almost all the cases in which it tacitly might use IHL are excluded due to the necessity to read all the case law 15, however a few cases that occur in what may be considered an armed conflict and thereby gives reason for a further examination is chosen in addition. These are chosen with the help of the importance filter inherent in HUDOC, where the cases regarded as most important was chosen. 16 Together these cases will constitute the empirical base. 17 It does not mean that there will be no reference to other cases; on the contrary, they will be taken into account to the extent the selected judgments and decisions are concerned. 2. The History of the Relationship Between International Humanitarian Law and International Human Rights Law 2.1 The conceptual difference between IHRL and IHL In this chapter the historic evolution of the relationship of IHL and IHRL will be assessed, however first the conceptual difference between the two areas of law is to be regarded. The relationship between IHL and IHRL, of which the ECHR is part, is of much debate and it is the subject of many scholarly writings and activities. The debate over the correct application of the bodies of law and the interplay is also reflected in the debate on the fragmentation phenomenon. The essence of fragmentation relates to the 15. This challenging task is hardly possible within the scope of a Master thesis but is still an interesting problem for further research. 16. Cases are divided into four categories, the highest level of importance being Case Reports, followed by levels 1, 2 and 3. More information available on how these cases are chosen in HUDOC FAQ, The cases are the following: Cyprus v. Turkey, Engel and others v. the Netherlands, McCann and Others v. United Kingdom, Güleç v. Turkey, Ergi v. Turkey, Bankovic and others v. Belgium and others, Ahmet Özkan and others v. Turkey, Isayeva v. Russia, Isayeva and others v. Russia, Markovic and others v. Italy, Korbely v. Hungary, Kononov v. Latvia, Varnava and others v. Turkey, Al-Skeini v. United Kingdom, Al-Jedda v. United Kingdom, Hassan v. United Kingdom, Jaloud v. the Netherlands

9 splitting up of the law into highly specialised 'boxes' that claim relative autonomy from one another. 18 Fragmentation can take place through the conflicting interpretation of general law, the emergence of special law diverging from the general law, or the existence of two different bodies of special law. 19 There is thus an interplay between proponents of diversity and unity. 20 Whether this phenomenon is a threat to the stability and coherence of international law is of great debate. 21 Cassese has discussed this overlap between different areas of law and finds that 'tight legal compartments are gradually tending to influence one another (...) and international Courts are tending to look at them as part of a whole'. 22 The ECtHR s basic position towards IHL reveals a mostly closed paradigm. This possibly related to differences between IHL and HRL, the lack of cases on derogations entered under Article 15 ECHR in the context of internal hostilities or armed conflicts and the Court s aim to make the ECHR framework self-sufficient This question will be further discussed in relation to the ECtHR's recent case law development, as it might suggest that a more fragmentation-reducing case law is developing. A problem nonetheless arises if a normative conflict is found when two bodies of law require different outcomes; this is especially relevant where IHL is understood as less of a barrier than human rights law. 23 Due to that each regime has its specific interests and objectives there is a tendency of special regimes, as the ECHR appears to constitute, to advance their aims and objectives in order to better fulfil their missions. 24 A different problems arises of an institutional kind, as when two institutions appear to say different things about the same issue and both institutions have the competence to determine the specific question. It has been argued that proposed solutions to the problem of fragmentation should have as an aim to help recover the lost unity of international law. 25 However, the reduction of fragmentation is not always desirable in the context of ECHR due to the conceptual difference between the two bodies of law, although it may improve the effectiveness of international legal order, since it may not fulfil the aims and purposes of the ECHR. IHRL and IHL distinguished themselves through the different objectives they strive to achieve. On the one hand, the aim of human rights law is to protect individuals from unlawful State action and thereby essentially applies to the vertical relationship between unequal parties. On the other hand, IHL is aimed at regulating a horizontal relationship between two, at least in theory, equal parties, confronting each other in armed conflict. 26 Under humanitarian law, the rules apply to all parties to a conflict, to government forces and rebelling armed groups alike. Under IHRL, the rules apply only to the party to the treaty, i.e. the government. 18. Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Martineau, The Rethoric of Fragmentation: Fear and Faith in International Law, p See Hafner, Risks Ensuing from Fragmentation of International Law, annex. 22. Cassese, International Law, This approach is present in the context of anti-terrorist activities which are claimed to be justified under humanitarian law. See e.g. The Public Committee against Torture in Israel et al. v. The Government of Israel, HCJ 769/02, 11 Dec. 2005, paras Forowicz, The Reception of International Law in the European Court of Human Rights, Lorite Escorihuela, Humanitarian law and human rights law: the politics of distinction, Meron, The Humanization of Humanitarian Law,

10 The application of IHL is dependent on the existence of an international or non-international 27 armed conflict, the rules thus depends on the conflict's characteristics. The existence of two categories under IHL, international and non-international, is generally not contested. International armed conflicts are those waged between states 28 or between a state and a national liberations movement if it is a struggle for national liberation against alien occupation or colonial domination, and thus falls under Additional Protocol I and the Geneva Conventions of If it is a high-intensity civil war in which the armed groups are under responsible command and exercise such control over a part of [the state s] territory as to enable them to carry out sustained and concerted military operations, then it is governed by Additional Protocol II and constitutes a non-international armed conflict. 30 If it is an armed conflict of lower intensity, then it is governed by Common Article 3, and customary law. 31 The differences between the rules of IHL which are applicable in the two categories of armed conflicts have in some respect diminished in recent years because of the development of practice, often evolving into customary law, which has extended to non-international armed conflicts. 32 This was practice previously applicable only to international armed conflicts and has led to a debate over whether further merging of IHL applicable to different categories of hostilities would be desirable. 33 However, if the conflict consists only of riots or other internal disturbances, then it is not governed by IHL at all. 34 Thus, under humanitarian law, the rules applicable in a given situation depend on the characterization or qualification of the conflict as a whole. The purpose of categorising armed conflicts is thus to determine the applicable law and the rights and obligations for those responsible for, or affected by it I shall be using the terms 'internal' and 'non-international' when referring to an armed conflict indifferently. 28. Article 2 Common to the 1949 Geneva Conventions. 29. International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3, Art. 1(4). 30. International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, 1125 UNTS 609, Art. 1(1). 31. The text of Common Art. 3 refers to armed conflict not of an international character without defining armed conflict as such. Today, it seems to be widely accepted in principle that Common Art. 3 will be triggered at a much lower threshold of violence, as attested to by Protocol II, Art. 1(2). The International Criminal Tribunal for the Former Yugoslavia has held that an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State : Tadic, Case number IT-94-1-AR72 (Appeals Chamber)(2 Oct. 1995), para. 70. In relation to customary law see Henckaerts and Doswald-Beck, Customary International Humanitarian Law, Vol. 1: Rules [hereinafter ICRC Customary Humanitarian Law Study]. This study identified 161 customary rules, many of which purportedly apply to internal armed conflicts. The authors concluded that the gaps in the regulation of the conduct of hostilities in Additional Protocol II have largely been filled through State practice, which has led to the creation of rules parallel to those in Additional Protocol I, but applicable as customary law to non-international armed conflicts, at p. xxix. 32. Wilmshurst, Introduction, s The so-called unification of international humanitarian law. See Moir, Towards the unification of international humanitarian law?, Protocol II, Art. 1(2) states that the Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts. 35. In addition to the forementioned types of armed conflicts, with new developments contemporary armed conflicts and irregular warfare are not that easily described. However, this question is not within the scope of this master thesis. Legally only two types of armed conflicts exists. For a general overview see e.g. Wilmshurst (ed), International law and the classification of conflicts

11 In contrast, the rules governed by the ECtHR have no such thresholds but form a single body of law that covers everything from riots to battles between rebel groups and national armies, international human rights law applies at all times. 36 This is affirmed by the European Union Guidelines on promoting compliance with international humanitarian law, it states that IHL is applicable in time of armed conflict and occupation. Human rights law is applicable to everyone within the jurisdiction of the State concerned in time of peace as well as in time of armed conflict. Thus while distinct, the two sets of rules may both be applicable to a particular situation. 37 The ECtHR's jurisdiction is however generally limited to interpreting and applying the ECHR and to award just satisfaction where a violation is found. 38 In addition to the differences between the two bodies of law there is thus also an apparent jurisdictional limit. A common thread nonetheless unites the two bodies of law in that they both aim to protect human dignity. The International Criminal Tribunal for the former Yugoslavia expressed in the judgement of Furundzija 39 that 'the primary purpose of [international humanitarian law] is to safeguard human dignity. The proposition is also supported by some general provisions of such important international treaties as the Geneva Conventions and Additional Protocols, which consistently aim at protecting persons not taking part, or no longer taking part, in the hostilities from 'outrages upon personal dignity''. 40 'The general principle of respect for human dignity is the basic underpinning and indeed the very raison d e tre of international humanitarian law and human rights law. 41 This idea of complementarity has however been criticised. 42 Considering the inherent differences between IHL and IHRL it may be that striving to 36. Abresch, 'A Human Rights Law of Internal Armed Conflict', European Union Guidelines on promoting compliance with international humanitarian law [2005] OJ C327/04, at para ECHR Article 41. However, as will be addressed further on in this thesis the ECtHR has found that account it to be taken of 'any relevant rules of international law applicable in the relations between the parties'. The Court recalls furthermore in Bankovic and others v Belgium, para 57 that 'the principles underlying the Convention cannot be interpreted in a vacuum.the Court must also take into account any relevant rules of international law (...) although it must remain mindful of the Convention s special character as a human rights treaty. The Convention should be interpreted as far as possible in harmony with other principles of international law of which it forms part'. See also Al-Skeini v. United Kingdom para 142; Jaloud v Nerherlands, para Prosecutor v. Anto Furundzija, judgement, ICTY, 10 December 1998, IT-95.17/1-T (1999) 38 ILM 317 (1999). 40. Prosecutor v. Anto Furundzija. para 162. The Court also found in para 183 that: "[t]he essence of the whole corpus of international humanitarian law as well as human rights law lies in the protection of the human dignity of every person, whatever his or her gender. The general principle of respect for human dignity is the basic underpinning and indeed the very raison d e tre of international humanitarian law and human rights law; indeed in modern times it has become of such paramount importance as to permeate the whole body of international law. This principle is intended to shield human beings from outrages upon their personal dignity, whether such outrages are carried out by unlawfully attacking the body or by humiliating and debasing the honour, the self-respect or the mental well being of a person. Theodor Meron, The Humanization of Humanitarian Law 94 (2000), American Journal of International Law 239, 242ff. on the question of whether IHL bas been evolving and is undergoing a process of 'humaisation'. 41. Marco Odello, Fundamental Standards of Humanity: A Common Language of International Humanitarian Law and Human Rights Law. The author also reviews the work by the UN on Fundamental Standards of Humanity (FSH). 42. Asbjørn Eide, The Laws of War and Human Rights Differences and Convergences, 575. See also Lorite Escorihuela, Humanitarian Law and Human Rights Law: The Politics of Distinction, The author argues that the relationship need to be debated in terms of practical legal theory and political considerations instead of idealism. The author argues that the idea that humanitarian law has human dignity as its first concern would amount to saying that the dignity of soldiers is nonexistent or unimportant, due to the lack of deliberate regulation by the

12 harmonise the two regimes is too difficult. It may very well be that norm conflicts of such sort require a political solution, rather than a judicial solution. Shabas argues that 'because of this conceptual difference between international human rights law and international humanitarian law, it is impossible to entirely reconcile the two systems'. 43 However, in an armed conflict, both bodies of law seek to protect persons by regulating the way the means and methods used by the parties of the conflict. It would be a too easy solution to say that while humanitarian has an underlying realistic philosophy based on military necessity and, that human rights law is too idealistic and therefore inappropriate for situations of armed conflict. 2.2 Two Separate Bodies of Law At the outset, it is important to consider whether there is any reason for the ECtHR to consider IHL. There are a number of considerations originating in the public international law context, a context in which the ECtHR operates, to suggests that some consideration of IHL is necessary. The context in which the ECtHR works arguably require at least some regard. In order to assess the evolution of the relationship between IHRL and IHL, a historical background of the international context will be presented. Although the question of the relationship is of much debate today it was not until the late 1960s that the appropriate application and interplay between the two bodies of law drew more attention. At the start the two bodies of law were to be viewed as clearly separate and distinct since they historically emerged and developed independently from one another. 44 The law of war has its early roots in Antiquity. It evolved mainly during wars between European States, and became progressively consolidated from the Middle Ages. 45 The first treaty was adopted in 1864 when the Geneva Convention of August 22, 1864 for the Amelioration of the Condition of the Wounded in Armies in the Field was drafted. 46 The main concept, and idea behind it, was that individuals need to be protected in armed conflicts. 47 Cerna shows that IHL 'evolved as a result of humanity s concern for the victims of war, whereas human rights law evolved as a result of humanity s concern for the victims of a new kind of internal war the victims of the Nazi death camps'.' 48 Hence, IHRL only became public international law after the seconds world war. Before then individuals had been granted their rights through bills of rights, or more general constitutional law. 49 However, the was no real discussion about the relationship between IHL and IHRL, in practice the two laws of war of the sovereign s relation to its own agents. In relation to the different status afforded to different categories the continuity of humanitarian law s concern for human dignity into the situation of armed conflict would imply that human dignity can still be realized despite war, where, apart from everything else that may intuitively seem inimical to human rights, discrimination among individuals is even factually a given. 43. Schabas, Lex specialis? Belt and suspenders? The Parallel Operation of Human Rights Law and the Law of Armed Conflict, and the Conundrum of jus ad bellum, See e.g. Que nivet, Introduction. The History of the Relationship Between International Humanitarian Law and Human Rights Law ; Bothe, The Historical Evolution of International Humanitarian Law, International Human Rights Law, Refugee Law and International Criminal Law; Green, 'The Relations Between Human Rights Law and International Humanitarian Law: A Historical Overview'. 45. Robert Kolb, The Relationship between International Humanitarian Law and Human Rights Law: A Brief History of the 1948 Universal Declaration of Human Rights and the 1949 Geneva Conventions, Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, (Aug. 22, 1864), 18 Martens Nouveau Recueil (ser. 1) 607, 129 Consol. T.S Further readings see O'Connell, Historical development and legal basis. 48. Cerna, Human Rights in Armed Conflict: Implementation of International Humanitarian Law Norms by Regional Intergovernmental Human Rights Bodies, Randall, The history of international human rights law,

13 branches were nearly completely separated. 50 Heintze illustrates this by a reference to the lack of interest in each other of the experts involved in the Geneva Conventions of 1949 on the one hand, and those Drafting the Universal declaration of Human Rights on the other hand. 51 The 1948 Universal Declaration of Human Rights 'completely bypasses the question of respect for human rights in armed conflict, while at the same time human rights were scarcely mentioned during the drafting of the 1949 Geneva Conventions.' 52 However, Schindler argues that 'the UN exerted a considerable, though little noticed, influence on [the outcome of the diplomatic conference that led to the adoption of the Geneva Conventions]. The efforts towards an international guarantee of human rights left an imprint on the Conventions'. 53 Common Article 3 constitutes, in his opinion, a human rights provision since it aims to regulate the relationship between the state and its nationals in times of non-international armed conflicts. 54 This is the time the ECtHR comes into force. The ECHR entered into force in 1953 and with that established a catalogue of rights and two treaty institutions, the ECtHR and the European Commission of Human Rights, responsible for ECHR's enforcement. However, the latter ceased to exist and its functions were taken over by the permanent Court in 1998 with the entry into force of Protocol 11. The ECHR's purpose was to give effect, through the adoption of a binding treaty instrument, to the Universal Declaration of Human Rights proclaimed by the UN General Assembly on 10 December 1948; the ECHR thus came before important human rights treaties adopted by he UN itself, the two 1966 International Covenants. 55 There can be little doubt that when the ECHR was adopted in 1950; it was commonly assumed that the Convention would mainly apply in times of peace. The possibility of application in times of armed conflict was not considered a relevant question at the time, although, as will be addressed later, the text of the ECHR makes it clear that the ECHR does apply in times of armed conflict. However, the possibility was not given any serious thought by legal writers. 56 This is probably due to the fact that humanitarian law traditionally only applied to international armed conflicts and non-international armed conflicts were deemed to be regulated by the international law of peace. In 1949, one year before the adoption of the ECHR, Article 3 common to the Four 1949 Geneva Conventions created a set of minimal rules of IHL applicable to non-international armed conflicts. The consequence of that recent development for the traditional distinction between war and peace were probably not fully realized at the time." 57 In order to correctly understand the relationship between international human rights law, more 50. Heintze, Theories on the relationship between international humanitarian law and human rights law, Heintze, Theories on the relationship between international humanitarian law and human rights law in Kolb, Robert & Gaggioli, Gloria (red.), Research handbook on human rights and humanitarian law, Edward Elgar, Cheltenham, United Kingdom, 2013, Kolb, The Relationship between International Humanitarian Law and Human Rights Law: A Brief History of the 1948 Universal Declaration of Human Rights and the 1949 Geneva Conventions, See also Suter, Human Rights in Armed Conflicts, Schindler, International Humanitarian Law: Its Remarkable Development and its Persistent Violation, Schindler, International Humanitarian Law: Its Remarkable Development and its Persistent Violation, International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), 21 U.N. GAOR (Supp. number 16) at 52, U.N. Doc. A/6316 (Dec. 16, 1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976 [hereinafter ICCPR] and International Covenant on Economic, Social and Cultural Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (number 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force Jan. 3, 1976 [hereinafter ICESCR]. 56. Gioia, The Role of the European Court of Human Rights in Motoring Compliance with Humanitarian law in Armed Conflict, Gioia, The Role of the European Court of Human Rights in Motoring Compliance with Humanitarian law in

14 specifically the ECHR, and international humanitarian law when applied in practice to situations of armed conflict, it is important to put this relationship in its legal and doctrinal context. The rest of this chapter will look at the evolution of the relationship. 2.3 Human Rights in Armed Conflict During the 1960s several events lead to the awakening of the debate of the relationship between IHRL and IHL, first and foremost the Vietnam War but also the Nigerian War and the adoption of the two, already mentioned, international human rights covenants in ICCPR and ICESCR created specific non-derogable rights, thereby acknowledging that certain human rights could be restricted during certain conditions. 59 Similar clauses are included in regional conventions such as the 1950 ECHR, and the 1969 American Convention on Human Rights [hereinafter ACHR] which came into force The inclusion of such clauses would imply that the Conventions are applicable at all times and not only during times of peace. 61 The 1968 Teheran Conference, the First World Conference on Human Rights, intended to review the progress made since the adoption of the Universal Declaration of Human Rights. Doswald-Beck and Vite claims that it was '[t]he true turning point, when humanitarian law and human rights gradually began to draw closer.' 62 A resolution was adopted by the UN General Assembly in which the Secretary General was invited to study 'steps which could be taken to secure the better application of existing humanitarian international conventions and rules in all armed conflicts' and '[t]he need for additional humanitarian international conventions or for possible revision of existing Conventions to ensure the better protection of civilians, prisoners and combatants in all armed conflicts.' 63 The resolution was given the name Human Rights in Armed Conflicts. Even though there is not strong wording in the resolution, it brought the United Nations onto a new field, that of humanitarian law and suggested a role for human rights in regulating warfare. 64 Not everyone thought this a good idea but it is clear that the debate on the relationship was triggered. The phrase 'Human Rights in Armed Conflict', Suter argues in 1976, was adopted as a political creation, without much thought given to the implications of the phrase used. 65 Suter argued for a separation between the two branches of law and claimed that the two underlying motivations of IHL, humanitarian considerations and self-interest, were not present in IHRL norms. 66 This constitutes the separatist theories, which views the two bodies of law as separate and mutually exclusive, even conflicting, bodies of law. The traditional understanding of the separation of IHRL and IHL accepts that in a situation of armed conflict, it will be little to no accountability for certain human rights violations. 67 Armed Conflict, Oberleitner, Humanitarian law as a source of Human Rights Law, Schindler, International Humanitarian Law: its Remarkable development and Its Persistent Violation, American Convention on Human Rights, O.A.S. Treaty Series number 36, 1144 U.N.T.S. 123, entered into force July 18, 1978 [hereinafter ACHR]. 61. This has been afformed in relation to the ECHR by the ECtHR in Hassan v. United Kingdom. 62. Doswald-Beck & Vité, 'Origin and Nature of Human Rights Law and Humanitarian Law, Resolution XXIII Human Rights in Armed Conflicts, adopted by the International Conference on Human Rights. Teheran, 12 May Oberleitner, 'Humanitarian law as a source of Human Rights Law', Suter, An Inquiry inot the Meaning of the phrase Human Rights in Armed Conflicts, Suter argues that 'it disregards the abvious fact that wars negate human rights, that the latter actually do not exist in times of armed conflicts, and that their function is then taken over by humanitarian law but only in regard to certain individuals and under certain conditions', at 393. See further Suter, An Inquiry inot the Meaning of the phrase Human Rights in Armed Conflicts, Modirzadeh, The Dark Sides of Convergence: A Pro-civilian Critique of the Extraterritorial Application of

15 Although the phrase Human Rights in Armed Conflict gained considerable criticism it was popularly used in the 1970s, 68 notwithstanding that it was not clear what the it encompassed. 69 Sean MacBride, the drafter of the original proposed resolution gives it the meaning of IHL. But more generally, the expression 'human rights law in armed conflict' is perceived as seeking to provide protection to civilians caught in armed conflict IHL and IHRL more in common than earlier thought? In the 1970s it was argued, despite the strong views expressed by separatists, that the two bodies of law were not only related but also that '[t]he law of war [was] a derogation from the normal regime of human rights'. 71 Furthermore, both IHL and IHRL were based 'upon the dignity and value of the individual being'. 72 This is known as the integrationist theories. Indeed the two Additional Protocols to the Geneva Conventions from 1977, 'paid tribute to the world of human rights'. 73 Many of the provision in Additional Protocol I, relating to international armed conflicts, to some extent resembles human rights law. 74 For example, Article 72 Additional Protocol I recognizes that besides the rules expressed therein as well as in the Fourth Geneva Convention, which deal with the protection of civilian and civilian objects, there are 'other applicable rules of international law relating to the protection of fundamental human rights during international armed conflict'. 75 Another example is Article 75 Additional Protocol I, which lists a series of fundamental guarantees for individuals who are in the power of a belligerent state. 76 However, Draper argued still in the late 70s that IHL and HRL were fundamentally distinct because of their different origins, theories, nature and purposes. 77 It should be noted that, in situations where a State party, such as the military occupation of northern Cyprus by Turkey (in 1974) or the conflict in Chechnya within the Russian Federation (in 1999), were involved in conflicts, the Court proceeded on the assumption that the ECHR continued to apply; moreover, in both situations, the ECHR continued to apply in full, since neither Turkey nor Russia made a declaration under Article 15. It is apparent that IHL and IHRL have much in common, but there are considerable differences between the two bodies of law and even if not in the objects the strive to achieve it is apparent in the application. IHL is far older than IHRL. IHRL, on the other hand, is of much later date. Breaches of IHL call for action by one state against another, as exemplified in the DRC v Uganda case 78, or, as with the Geneva Conventions, punishment of 'grave breaches' committed by individuals. The individuals concerned must Human Rights Law, Ibid, Ibid, Queńivet, Introduction. The History of the Relationship Between International Humanitarian Law and Human Rights Law, Draper, The Relationship Between the Human Rights Regime and the Law of Armed Conflicts, Draper, Humanitarianism in the Modern Law of Armed Conflicts, in Armed Conflict and the New Law 3, Doswald-Beck & Vité, International Humanitarian Law and Human Rights Law, Doswald-Beck & Vité, International Humanitarian Law and Human Rights Law, Queńivet, Introduction. The History of the Relationship Between International Humanitarian Law and Human Rights Law', See comments by Doswald-Beck & Vité, International Humanitarian Law and Human Rights Law, Draper, Humanitarian Law and Human Rights, Case Concerning the Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment of 19 Dec. 2005, General List number