Obligation to protect life and the fear of an excessive judicialization of warfare

The Court could interpret the positive obligations it has drawn from Article 2Footnote ¹¹ as requiring States – through their military leaders – to protect the lives of their own soldiers, although their work entails an inherent risk of death.

The Court has, in fact, already ruled, in relation to an alleged violation of Article 2, that commanding officers must take “necessary and sufficient measures to protect the physical and mental integrity of the conscripts under their command”.Footnote ¹² If the Court has not had to rule on a case involving a kill in action thus farFootnote ¹³ , it was, however, the hypothesis in the case of the Uzbin Valley ambush in Afghanistan, which was brought to court in France. In this case, the relatives of the soldiers who had been killed filed a complaint against the military hierarchy (more precisely against an unnamed person). The charges were endangering the life of others and failing to prevent a crime.Footnote ¹⁴ This case is unique in France, but similar complaints have been brought before the United Kingdom's courts,Footnote ¹⁵ and there were fears in France's military circles about the implications it could have on the ground.

However, it is not a given that the ECtHR would rule in favour of the applicants, were such a case to be brought before it. As Nicolas Hervieu points out, “the Court accepts (…) a considerable degree of flexibility in view of operational requirements and other serious constraints on the ground” and “often refrains from ruling on the appropriateness of operational choices”.Footnote ¹⁶ This comprehensive approach could also help solve the potential conflicts of paradigms between IHL and EHRL that could arise regarding the application of the right to life in an armed conflict situation.

The right to life and potential conflicts of paradigms between IHL and EHRL

Application of the negative obligation established in Article 2 of the ECHR – the prohibition of arbitrary deprivation of life – does not appear to conflict in real terms with any competing rule of IHL, although Article 2 does not specifically include “lawful acts of war” in the list of circumstances in which deprivation of life may be justified. The only reference to this indeed appears in Article 15(2), which provides, in substance, that no derogation may be made from Article 2 except “in respect of deaths resulting from lawful acts of war”. The Court therefore appears to accept that acts that violate the right to life, but could be considered lawful under IHL, are never contrary to Article 2 and not only when a State exercises its right of derogation, as provided for under Article 15 of the Convention.Footnote ¹⁷ In the judgement handed down in the case of Varnava and Others, the Grand Chamber of the Court held that “Article 2 must be interpreted so far as possible in light of the general principles of international law, including the rules of international humanitarian law”, although “Contracting States are under obligation to protect the lives of those not, or no longer, engaged in hostilities”, even when the respondent State had not exercised its right of derogation and advanced the argument that the actions in question were “lawful acts of war”.Footnote ¹⁸

However, the Court held on several occasions that “Article 2 covers both intentional killing and also the situations in which it is permitted to use force which may result, as an unintended outcome, in the deprivation of life”.Footnote ¹⁹ The Court could therefore apply case law relating to Article 2 in the case of the incidental killing of a protected person as the result of the use of force in circumstances considered lawful under IHL. The test for determining if there has been an excessive use of force by the agents of a State requires the Court to decide whether that use of force was “absolutely necessary” to achieve one of the permitted aims defined in Article 2.Footnote ²⁰

The solution reached in the Varnava and Others judgement referred to above suggests that there is no real problem in categorizing use of force under one of these aims. A military engagement in the context of a non-international armed conflict (NIAC) can, it seems, be readily included under the aim described in Article 2(2)(a), which is to act in defence of any person from unlawful violence, as presumed by the Court in its judgement in Isayeva and Others v. Russia, “given the context of the conflict in Chechnya at the relevant time”.Footnote ²¹

In contrast, the criterion of absolute necessity, which the Court considers to be a “stricter and more compelling” test,Footnote ²² differs significantly from the principles governing the conduct of hostilities established in IHL.Footnote ²³ In order to be considered “absolutely necessary” within the meaning of Article 2 of the Convention, the force used must be strictly proportionate to the aim pursued and be part of an operation that was planned and controlled so as to minimize, to the greatest extent possible, recourse to lethal force.Footnote ²⁴ Therefore, under EHRL, force can only be used as a last resort, even against targets considered legitimate under IHL. The principle of precaution, in particular, which is used by the Court to assess respect for the absolute necessity standard, has a different meaning from the principle of precaution in IHL. It requires all precautions to be taken to avoid, as far as possible, all use of force as such, and not just against protected persons and property, as dictated by the principle of precaution in IHL.Footnote ²⁵ Therefore, within a strict interpretation of the Convention, damages inflicted on civilians as the result of an attack that would be considered lawful under IHL – because it complies with the principles governing the conduct of hostilities – could be nevertheless scrutinized by the Court in the light of the principle of “absolute necessity” and deemed to be contrary to Article 2.

These potential conflicts between IHL and EHRL paradigmsFootnote ²⁶ are not, however, unsolvable. As Professor Frédéric Sudre explains, while IHL is a branch of international law quite distinct from EHRL, the fact remains that they both have “the same concern – to ensure the protection of human life –… and inevitably share a number of basic rules”.Footnote ²⁷ The interpretative techniques commonly used by the Court allow it to reconcile these different logics. Thus in the case of Isayeva and Others v. Russia, while the Court refrained from automatically applying the rules of IHL and setting aside the potentially competing rules of the Convention, it did not apply the principle of precaution as understood in EHRL, even though this was what its case law appeared to require. It did not seek to determine whether the persons suspected of unlawful violence could have been spared,Footnote ²⁸ examining only the question of whether the operation concerned “was planned and executed with the requisite care for the lives of the civilian population”.Footnote ²⁹

Such case law developmentsFootnote ³⁰ are crucial in ensuring respect for the complementary relationship between IHL and human rights, recognized in the International Court of Justice (ICJ) case law,Footnote ³¹ which has been referred by the ECtHR as relevant international law.Footnote ³² Taking these two branches of international law as a coherent and complete whole appears to be the only satisfactory solution for dealing with the issues raised by their concurrent application.

Extraterritorial application of Article 15

The possibility of derogating from obligations established in the Convention, provided for in Article 15, would seem, at first glance, to provide the most appropriate solution, permitting States to continue complying with their obligations under the Convention and, at the same time, use administrative detention in armed conflict situations. However, the Court considers that the meaning of the expression “[i]n time of war or other public emergency threatening the life of the nation”, used in Article 15(1) of the ConventionFootnote ⁴⁰ refers to “an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the State is composed”.Footnote ⁴¹ As Jelena Pejic puts it, “[i]t would appear that recent armed conflicts involving ECtHR countries in the territory of a third ‘host’ state could not be deemed to have reached the requisite threat level to them”.Footnote ⁴²

The Court made reference to Article 15 in its judgement in Hassan v. the United Kingdom, as it had done previously in the Al-Jedda v. the United Kingdom judgement.Footnote ⁴³ This could indicate that the Court would not rule out the validity of a derogation from the Convention, even when the case brought before it concerned an extraterritorial NIAC. In such a case, however, it would have no choice but to change its previous case law since the criteria relating to the “the whole population” being affected and the “threat to the organised life of the community” could a priori not be met.

Furthermore, if the Court were to accept such a derogation, the State that had been authorized to exercise its right to derogate from Article 5 of the Convention in the territory of a third State would be unlikely to want to suspend the application of this provision in its own territory. This would no doubt conflict with the concept of extraterritorial jurisdiction, which is underpinned by the idea that, as the Court's case law reflects, “Article 1 of the Convention cannot be interpreted so as to allow a State party to perpetrate violations of the Convention on the territory of another State, which it could not perpetrate on its own territory”.Footnote ⁴⁴

A derogation under Article 15 would not then have the effect of completely exonerating the State from respecting the safeguards established in it. First of all, the State has a duty of notification when it triggers Article 15Footnote ⁴⁵ and is required to justify the decision to take derogating measures in the light of the circumstances of the situation referred to above.Footnote ⁴⁶ While the Court allows States “a wide margin of appreciation to decide on the nature and scope of the derogating measures necessary to avert the emergency”,Footnote ⁴⁷ it has already stated that “it is ultimately for the Court to rule whether the measures were ‘strictly required’”.Footnote ⁴⁸ It has also indicated that “where a derogating measure encroaches upon a fundamental Convention right, such as the right to liberty, the Court must be satisfied that it was a genuine response to the emergency situation, that it was fully justified by the special circumstances of the emergency and that adequate safeguards were provided against abuse”.Footnote ⁴⁹ Thus assuming that Article 15 allows States to derogate from the provisions of Article 5 only in relation to administrative detentions carried out in the territory of States that are not party to the Convention – which is not a given – the Court could nevertheless verify that the measures taken by States are strictly required by the exigencies of the situation.

The outcomes of the cases brought before the ECtHR also depend, in this regard, on the safeguards afforded to the persons detained by the State wishing to exercise its right to derogate. The Court accepted British derogations (at the national level) from its obligations under Article 5 of the Convention in its Brannigan and McBride judgement in relation to measures authorizing the detention of people suspected of terrorist offences without judicial control for a maximum period of seven daysFootnote ⁵⁰ . It did not, however, acknowledge the validity of a State derogation in relation to a fourteen-day detention of a similar nature in its Aksoy v. Turkey judgement. The Court stated, in the Brannigan and McBride case, that “the remedy of habeas corpus was available to test the lawfulness of the original arrest and detention” and that there was “an absolute and legally enforceable right to consult a solicitor forty-eight hours after the time of arrest and detainees were entitled to inform a relative or friend about their detention and to have access to a doctor”.Footnote ⁵¹ In contrast, in the Aksoy case, the Court considered that “the denial of access to a lawyer, doctor, relative or friend and the absence of any realistic possibility of being brought before a court to test the legality of the detention meant that he was left completely at the mercy of those holding him”.Footnote ⁵²

The solution provided by Article 15 of the Convention is therefore not one that is indisputably available. Furthermore, it would not allow a State to completely disregard the application of Article 5 in relation to administrative detentions made in armed conflict situations outside its own territory and ignore certain safeguards which although not the same as those required for detentions in peacetime, provide parallel protections.

Authorization to detain granted by the United Nations Security Council

Pursuant to Articles 25 and 103 of the United Nations Charter, UNSC decisions are binding on States and override any other conflicting obligations they have under other international treaties, such as the ECHR. However, the Grand Chamber of the Court recently held in the case of Al Dulimi and Montana Management Inc. v. Switzerland of 21 June 2016 that

In the context of the implementation of sanctions against individuals or entities at the national level, the Court thereby confirmed the presumption it previously established in its judgement of 7 July 2011 in the case of Al-Jedda v. the United Kingdom.Footnote ⁵⁴

Thus the mere inclusion of a reference to administrative detention in a UNSC resolution, without an explicit – and highly unlikely – exclusion of Article 5, could not have the effect of displacing this provision.

Nevertheless, in Al-Jedda v. the United Kingdom, the Court did not formally reject the possibility for a UNSC resolution to constitute a legal basis for administrative detention.Footnote ⁵⁵ It seems that the reason why this argument was not accepted by the Court in this case was the lack of an express mention of administrative detention in the resolution in question. It is at least the reading of the Court's case law recently adopted by the High Court of Justice of England and Wales and subsequently confirmed on appeal.Footnote ⁵⁶

However, if the interpretations of the Court in its judgement in the case of Hassan v. the United Kingdom are followed, the UNSC resolution would also have to provide for a number of legal safeguards, in order for it to be deemed constitutive of a legal basis for administrative detention that could be “accommodated” with the theoretically exhaustive list of permitted grounds for deprivation of liberty set out in Article 5(1) of the Convention, which does not include this type of detention.Footnote ⁵⁷

This solution is therefore likely to encounter political obstacles, as such precise language has not been used in a Security Council resolution to date. It would also have the disadvantage of having to be activated prior to each operation, which would not be ideal as far as the principle of legal certainty is concerned.

Legal basis in the domestic law of the sending State, of the host State or in a bilateral agreement

In the Serdar Mohammed case, before determining whether IHL applicable to NIACs contained a legal basis for administrative detention, the British High Court of Justice examined whether UK domestic law and the law of the host State where the operation took place permitted this form of detention.Footnote ⁵⁸

However, a solution that involves relying on the domestic law of the host State does not seem wholly satisfactory, as in the majority of cases it would contain no specific provision for administrative detention. The relevant legislation would therefore have to be introduced urgently at the start of the military operation and, more often than not, it would be impossible to enact it in time. In addition, the text would have to provide certain safeguards in order for it to be considered by the Court as constituting a legal basis within the meaning of Article 5. Political obstacles associated with respect for the sovereignty of the host State where the operation takes place – assuming it is not party to the ECHR – could also hamper the success of this legislative or regulatory reform.

Another solution would be to include an explicit reference to the sending State's power to use administrative detention, guaranteeing the required safeguards, in an agreement signed with the host State at the start of the operation. This solution is less likely to encounter political obstacles, as only the sending State, and not the host State, would undertake to provide all the safeguards guaranteed to detained persons. The host State would only undertake to refrain from subjecting individuals transferred to it by the sending State to treatment contrary to Articles 2 and 3 of the Convention, or from taking measures that would violate these provisions.Footnote ⁵⁹ This solution might, however, fail to meet foreseeability and accessibility requirements for constituting a legal basis within the meaning of the Court's case law.Footnote ⁶⁰

Yet another solution would be to establish a legal basis for administrative detention in the domestic legislation of the sending State. However, in order for the legal basis to be valid according to the Court's case law, the text would have to expressly provide for it to be applicable to NIAC situations and, in particular, to extraterritorial NIACs and be sufficiently comprehensive in terms of procedural guarantees. In addition to the difficulty of achieving a piece of legislation of this kind, the ECtHR would, in the event of such cases being brought before it, undoubtedly have to make adjustments similar to those adopted in the Hassan judgement, because administrative detention does not figure among the cases of deprivation of liberty listed in Article 5(1). Such domestic legislation could not be considered as falling within the scope of Article 5(1)(b) of the Convention, which concerns “the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law”, because the Court's case law rules out this possibility. It requires there to be an unfulfilled obligation incumbent on the person concerned by the measure intended to “secure the fulfilment” of an obligation prescribed by law,Footnote ⁶¹ which must be specific and concrete.Footnote ⁶² Yet administrative detention is motivated simply by imperative reasons of security associated with an armed conflict situation in progressFootnote ⁶³ and not by a breach of an obligation to do or not do something.

It is therefore only by interpreting Article 5 in light of the provisions of this source of domestic law, which would supplement the relevant rules of IHL (in particular, those applicable to NIACs), that the Court could consider this type of detention as consistent with Article 5(1).

Lex specialis or systemic interpretation?

Often put forward as a potential solution to conflicts arising between IHL and EHRL, the maxim lex specialis derogat legi generali, according to which a law governing a specific subject matter overrides a law which only governs general matters, cannot, however, be invoked to overcome the lack of recognition of administrative detention in EHRL. The Court did not, in any event, rely on this rule in its judgement in Hassan v. the United Kingdom,Footnote ⁶⁴ and the British High Court of Justice expressly refused to apply it to the NIAC situation it was examining, holding that, as IHL does not provide a legal basis for this type of detention in NIACs, there is no conflict between IHL rules and the provisions of the Convention.Footnote ⁶⁵

In contrast to the principles of lex posterior and lex superior, the principle of lex specialis does not find expression in the provisions of the Vienna Convention on the Law of Treaties of 23 May 1969,Footnote ⁶⁶ although it has been used by the International Law Commission and various international courts and tribunals, including the International Court of Justice.Footnote ⁶⁷

The principle of systemic interpretationFootnote ⁶⁸ is, on the other hand, included among the principles established in the Vienna Convention, which provides, in Article 31(3)(c), that “[t]here shall be taken into account, together with the context … [a]ny relevant rules of international law applicable in the relations between the parties”.

In reality, as Silvia Borrelli explains, the ICJ

The Grand Chamber of the Court has itself applied the principle of systemic interpretation in its judgement in the case of Hassan v. the United Kingdom. It indeed ruled that a case of detention not provided for in Article 5 of the Convention did not constitute a violation, considering that this provision should be interpreted in the light of the principles of IHL.Footnote ⁷⁰ In making this ruling, the Court chose to make an exceptional departure from its case law, which holds that the list of permitted grounds for deprivation of liberty contained in Article 5(1) is exhaustive.Footnote ⁷¹

It is hard to see what would prevent the Court from using systemic interpretation if a case were brought before it involving administrative detention, with the provision of certain safeguards, occurring in a NIAC rather than in an IAC. While it is true that common Article 3 and Article 5 of Additional Protocol II are not as well detailed as Articles 43 and 78 of the Fourth Geneva Convention, it is also clear that in expressly referring to detention or internment and specifying procedural rules and minimum safeguards in the two texts applicable to NIACs, the States intended to restrict their freedom to use administrative detention and, in doing so, affirmed the existence of this power, which allows them to “mitigate the violence and the human cost of armed conflict”.Footnote ⁷²

Contrary to what the British Court of Appeal affirmed in the Serdar Mohammed case, the power of States to use administrative detention is not derived solely from the absence of a prohibition,Footnote ⁷³ but from a reference to this power and its regulation which, while subject to improvement, are present.Footnote ⁷⁴ Articles 43 and 78 of the Fourth Geneva Convention, on which the ECtHR relied in its judgement in Hassan v. the United Kingdom to declare that internment was one of the “accepted features of international humanitarian law” in international armed conflict,Footnote ⁷⁵ merely regulate the exercise of this power and make no reference to an explicit right to detain. In fact, only Article 21 of the Third Geneva Convention explicitly recognizes the right of States to detain in relation to prisoners of war. Article 42 of the Fourth Geneva Convention, cited by the British Court of Appeal in the Serdar Mohammed case as conferring a “power … to detain civilians where ‘the security of the Detaining Power makes [this] absolutely necessary’”Footnote ⁷⁶ simply regulates the use of detention in the case of protected persons.Footnote ⁷⁷

Although some States maintained that there was no point trying to regulate detention in NIAC because it was, in their view, essentially a matter of domestic law,Footnote ⁷⁸ at the Diplomatic Conference held to draft Additional Protocol II, the majority did consider it important to retain Article 5. At this conference, the International Committee of the Red Cross (ICRC) also confirmed, in response to a question raised by the United Kingdom, that draft Article 5 of Additional Protocol II, which it had itself written, covered three forms of detention, one of which was non-criminal detention.Footnote ⁷⁹

There are various indications that the States have reserved the power to use administrative detention in NIACs. This power was recently reaffirmed at the 32nd International Conference of the Red Cross and Red Crescent in the preamble to the Resolution on Strengthening International Humanitarian Law Protecting Persons Deprived of their Liberty in NIACs.Footnote ⁸⁰ However, the States apparently failed to anticipate the possible interplay between provisions applicable to NIACs and instruments protecting human rights and did not therefore see any point in retaining the set of safeguards initially included in the draft prepared at that time by the ICRC.