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Abstract
States have presented a range of arguments against the expansion of human rights law into the extra-territorial military sphere. This article focuses on one argument in particular – the ‘deterrent argument’. This is the idea that if states are expected to uphold human rights obligations during extra-territorial military operations, it will deter them from contributing troops to United Nations (UN) peace support missions, which would naturally include those sanctioned under the responsibility to protect (R2P) doctrine. This article considers how the European Court of Human Rights' jurisprudence could actually apply to such military operations in practice and whether states should logically be deterred from participating in such missions. We argue that the involvement of the UN and the types of missions undertaken under R2P should not deter states from participation, but rather that UN involvement neutralises or mitigates many of the negative issues states fear in this area, reducing the likelihood of human rights liability for states.
Disclosure statement
No potential conflict of interest was reported by the authors.
Notes on contributors
Dr Conall Mallory is a lecturer in law at Northumbria University. He teaches International Law and the Law of the European Union. His recent doctoral dissertation concerned the impact of litigation arising from the Iraq War (2003) on the extra-territorial application of the European Convention on Human Rights. Prior to commencing his PhD he undertook an LLM in Human Rights Law at Queen's University Belfast. He has also interned at Amnesty International.
Dr Stuart Wallace is a post-doctoral research fellow at the University of Nottingham. He recently graduated from the University of Nottingham with a PhD in law. His doctoral dissertation was on the application of the European Convention on Human Rights to Military Operations. He has first-hand experience of working at both the European Court of Human Rights and the International Criminal Court and has taught European Convention on Human Rights Law and European Union Law at the University of Nottingham for a number of years. He also serves as Book Review Editor for the Human Rights Law Review.
Notes
1 Guglielmo Verdirame, ‘Human Rights in Wartime: A Framework for Analysis', European Human Rights Law Review (2008): 689–90.
2 Cases on the extra-territorial application of the convention arise at the European Court and Commission of Human Rights (ECtHR) from the 1960s: X v. Federal Republic of Germany (App. No. 1611/62) EComHR 25 September 1965. The crossover between human rights law and armed conflict begins in the 1950s – Cordula Droege, ‘The Interplay between International Humanitarian Law and International Human Rights Law in Situations of Armed Conflict', Israel Law Review 40 (2007): 310, 312–17.
3 Cyprus v. Turkey (1982) 4 EHRR 482; Georgia v. Russia (II) (2012) 54 EHRR SE10.
4 The occupation of Iraq in Al-Skeini and Others v. United Kingdom (2011) 53 EHRR 18 (hereinafter Al-Skeini).
5 Kosovo in Behrami v. France (2007) 45 EHRR SE10.
6 Counter-insurgency in South-East Turkey in Ergi v. Turkey (2001) 32 EHRR 18.
7 Russian operations in Chechnya in Isayeva v. Russia (2005) 41 EHRR 38 (hereinafter Isayeva).
8 Antoine Buyse, ed., Margins of Conflict: The ECHR and Transitions to and from Armed Conflict (Antwerp: Intersentia, 2011); Andrea Gioia, ‘The Role of the European Court of Human Rights in Monitoring Compliance with Humanitarian Law in Armed Conflict', in International Humanitarian Law and International Human Rights Law, ed. Orna Ben-Naftali (Oxford: Oxford University Press, 2012), 201; William Abresch, ‘A Human Rights Law of Internal Armed Conflict: The European Court of Human Rights in Chechnya’, European Journal of International Law 16, no. 4 (2005): 741.
9 Barbara Miltner, ‘Revisiting Extraterritoriality after Al-Skeini: The ECHR and Its Lessons', Michigan Journal of International Law 33 (2012): 693–748; Natasha Balendra, ‘Defining Armed Conflict’, Cardozo Law Review 29, no. 6 (2008): 2482–5; Michelle Hansen, ‘Preventing the Emasculation of Warfare: Halting the Expansion of Human Rights into Armed Conflict’, Military Law Review 194 (2007): 1; Michael Dennis, ‘Application of Human Rights Treaties Extraterritorially to Detention of Combatants and Security Internees: Fuzzy Thinking All Around?’, ILSA Journal of International & Comparative Law 12 (2006): 474; William Hays Parks, ‘Part IX of the ICRC “Direct Participation in Hostilities” Study: No Mandate, No Expertise, and Legally Incorrect’, International Law and Politics 42 (2010): 797–9.
10 Geoffrey Corn, ‘Mixing Apples and Hand Grenades the Logical Limits of Applying Human Rights Norms to Armed Conflict’, International Humanitarian Legal Studies 1 (2010): 52, 90.
11 See, for example, Banković and Others v. Belgium and Others (2007) 44 EHRR SE5 (hereinafter Banković), para. 44.
12 See, for example, the attempts by the United Kingdom (UK) to shift blame onto the administrators of occupied Iraq and the UN in Al-Skeini, paras 113 and 97.
13 See, for example, arguments about the de facto and de jure control over prisoners in Al-Saadoon and Mufdhi v. United Kingdom (Admissibility) (2009) 49 EHRR SE11 (hereinafter Al-Saadoon), para. 79; See also the same argument made in reverse in Hassan v. United Kingdom (App. No. 29750/09) 16 September 2014, (hereinafter Hassan), para. 72.
14 See references to ‘serious repercussions’ made by Norway and France in Behrami and Saramati v. France et al. (App. No. 71412/01) 2 May 2007 (hereinafter Behrami), paras 108–9; See also reference to a ‘real risk’ in Jaloud v. the Netherlands (App. No. 47708/08) 20 November 2014 (hereinafter Jaloud), para. 126.
15 Jaloud, concurring opinion of Judge Motoc, para. 7.
16 Banković, para. 43.
17 Behrami.
18 See Polish argument in Behrami, para. 112; See also Dannenbaum, who argues that the resulting deficit in the supply of peacekeepers for UN missions means that such a scenario cannot be taken lightly – Tom Dannenbaum, ‘Translating the Standard of Effective Control into a System of Effective Accountability: How Liability Should be Apportioned for Violations of Human Rights by Member State Troop Contingents Serving as United Nations Peacekeepers', Harvard International Law Journal 51, no. 1 (2010): 184; See also Caitlin Bell, ‘Reassessing Multiple Attribution: The International Law Commission and The Behrami and Saramati Decision', New York University Journal of International Law and Politics 42 (2010): 504.
19 Behrami, paras 108–9.
20 Jaloud.
21 Jaloud, para. 126.
22 See notes 3–7 and discussion in Abresch, ‘A Human Rights Law of Internal Armed Conflict'.
23 UN, Human Rights Council, Report of the International Commission of Inquiry on Libya, A/HRC/19/38, para. 122.
24 Ibid., para. 87.
25 See inter alia, Banković and Isayeva.
26 For instance, the Baha Mousa Inquiry cost the UK government £25 million, the Al-Sweady Inquiry £31 million.
27 Dannenbaum, ‘Translating the Standard', 184–7.
28 Spencer Zifcak, ‘The Responsibility to Protect after Libya and Syria', Melbourne Journal of International Law 13 (2012): 89–90.
29 Eva Gramyk, ‘Increased Franco-British Military Cooperation: The Impetus, Its Results, and the Impact on International Humanitarian Interventions', San Diego Journal of International Law 15 (2013): 379, 423.
30 UNGA, 60/1. 2005 World Summit Outcome, 24 October 2005, A/Res/60/1: para. 139. Emphasis added by author.
31 Jonathan Graubart, ‘R2P and Pragmatic Liberal Interventionism: Values in the Service of Interests', Human Rights Quarterly 35 (2013): 76.
32 Alex Belamy, Global Politics and the Responsibility to Protect: From Words to Deeds, (London: Routledge, 2011), 163; Terry Gill, ‘The Security Council', in An Institutional Approach to the Responsibility to Protect, ed. Gentian Zyberi (Cambridge: Cambridge University Press, 2013), 95; Gary Wilson, ‘Applying the Responsibility to Protect to the “Arab Spring”', Liverpool Law Review 35 (2014): 160. Others see it as an emerging right to unilateral intervention – Alicia Bannon, ‘The Responsibility to Protect: The UN World Summit and the Question of Unilateralism', Yale Law Journal 115 (2006): 1158; Stephen John Stedman, ‘UN Transformation in an Era of Soft Balancing', International Affairs 83 (2007): 938.
33 United Nations Security Council Resolution 1973, 17 March 2011, S/RES/1973 (2011), para. 4.
34 Geir Ulfstein and Hege Fosund Christiansen, ‘The Legality of the NATO Bombing in Libya', International & Comparative Law Quarterly 62, no.1 (2013): 159, 162.
35 Ulfstein and Christiansen, ‘The Legality of the NATO Bombing in Libya’, 171.
36 Spencer Zifcak, ‘The Responsibility to Protect at the United Nations', in Rethinking International Law and Justice, ed. Charles Sampford, Derya Aydin Okur, and Spencer Zifcak (Aldershot: Ashgate, 2015), 267–73.
37 See Jaloud, concurring opinion of Judge Motoc, para. 2.
38 Al-Skeini, para. 138.
39 Ibid.
40 UNGA, ‘Responsibility to Protect: Timely and Decisive Response', 25 July 2012, A/66/874–S/2012/578, para. 14.
41 UNSCR 1973, 17 March 2011, S/RES/1973 (2011), para. 4.
42 In one judgment, the court appeared willing to consider that temporary effective control over an area was sufficient to establish jurisdiction, however this was not found on the facts and the approach has not been considered in other cases. See Issa and Others v. Turkey (2005) 41 EHRR 567.
43 Loizidou v. Turkey (Preliminary Objections) (1995) 20 EHRR 99.
44 Ilaşcu and Others v. Moldova and Russia (2004) 40 EHRR 46.
45 Al-Skeini.
46 See for instance Al-Skeini; Al-Jedda v. United Kingdom (2011) 53 EHRR 23 (hereinafter Al-Jedda); Hussein v. Albania et al. (App. No. 23276/04) 14 March 2006; Al-Saadoon and Jaloud.
47 Sargsyan v. Azerbaijan (App. No. 40167/06) 16 June 2015, para. 144.
48 The court in Hassan appeared willing to take the position that the UK was ‘far from being in effective control of the south-eastern area which it occupied’ in the earlier Al-Skeini case – Hassan, para. 75.
49 This concept was introduced by the ECtHR in the Al-Skeini case in 2011 and has not yet been fully articulated.
50 Al-Skeini, para. 135.
51 Al-Skeini, paras 143–50.
52 Nonetheless, the Sudanese government refused to participate in the UNSC session. UNSCR 1706, 31 August 2006, S/RES/1706 (2006), para. 1.
53 UNGA, ‘Fulfilling Our Collective Responsibility: International Assistance and the Responsibility to Protect’, A/68/947–S/2014/449, 11 July 2014, para. 67.
54 Jaloud.
55 See inter alia Medvedyev v. France (2010) 51 EHRR 39; Al-Saadoon and Ocalan v. Turkey (Merits) (2005) 41 EHRR 45.
56 See inter alia Issa, Andreou v. Turkey (App. No. 45653/99) ECtHR 27 October 2009 and Pad v. Turkey (App. No. 60167/00) ECtHR 28 June 2007.
57 Zifcak, ‘The Responsibility to Protect after Libya and Syria', 69.
58 Banković, para. 82.
59 Ibid., para. 75.
60 James Crawford, ‘Draft Articles on Responsibility of States for Internationally Wrongful Acts, With Commentaries', Yearbook of the International Law Commission 2 (2001): 34.
61 Samantha Besson, ‘The Extraterritoriality of the European Convention on Human Rights: Why Human Rights Depend on Jurisdiction and What Jurisdiction Amounts to', Leiden Journal of International Law 25 (2012): 867; Michael O'Boyle, ‘The European Convention on Human Rights and Extraterritorial Jurisdiction: A Comment on “Life After Bankovic”’, in Extraterritorial Application of Human Rights Treaties, ed. Fons Coomans and Menno Kamminga (Antwerp: Intersentia, 2004), 130.
62 Crawford, ‘Draft Articles', 35; Occasionally the court may be required to determine whether the acts of particular soldiers are attributable to the state first, before considering the issue of control, see Marko Milanovic and Tatjana Papic, ‘As Bad As It Gets: The European Court of Human Rights's Behrami and Saramati Decision and General International Law', International and Comparative Law Quarterly 58 (2009): 273. The ECtHR has also failed to draw clear lines between these issues in some of its cases, see for example, Stefan Talmon, ‘The Responsibility of Outside Powers for Acts of Secessionist Entities', International and Comparative Law Quarterly 58 (2009): 493, 508–17.
63 Bell, ‘Reassessing Multiple Attribution', 517; Aurel Sari, ‘Jurisdiction and International Responsibility in Peace Support Operations: The Behrami and Saramati Cases', Human Rights Law Review 8 (2008): 159.
64 Behrami, para. 71.
65 Ibid., para. 127.
66 Ibid., para. 123.
67 Ibid., para. 134.
68 Sari, ‘Jurisdiction and International Responsibility', 151; Milanovic and Papic, ‘As Bad As It Gets', 267; Kjetil Mujezinovic Larsen, ‘Attribution of Conduct in Peace Operations: The “Ultimate Authority and Control” Test', European Journal of International Law 19 (2008): 509; Alexander Breitegger, ‘Sacrificing the Effectiveness of the European Convention on Human Rights on the Altar of the Effective Functioning of Peace Support Operations: A Critique of Behrami & Saramati and Al Jedda', International Community Law Review 11 (2009): 155.
69 Breitegger, ‘Sacrificing the Effectiveness', 157. Breitegger also notes at 181 that national courts dealing with similar issues will be very slow to go against the ruling in Behrami unless the ECtHR expressly disavows the judgment, which in turn means that states may be able to continue to pass responsibility on to the UN.
70 Bell, ‘Reassessing Multiple Attribution', 533.
71 See also Beric and Ors v. Bosnia and Herzegovina (App. No. 36357/04), 16 October 2007; Marko Milanovic, ‘Al-Skeini and Al-Jedda in Strasbourg', European Journal of International Law 23 (2012): 134; Sari, ‘Jurisdiction and International Responsibility', 159 and 167.
72 André Nollkaemper, ‘Multilevel Accountability in International Law: A Case Study of the Aftermath of Srebrenica', in The Shifting Allocation of Authority in International Law: Considering Sovereignty, Supremacy, and Subsidiarity, ed. Yuval Shanay and Tomer Broude (Oxford: Hart Publishing 2008), 354.
73 The decisions of the Dutch courts, which have openly accepted the possibility of dual attribution of responsibility, could be influential here, prompting the court to be more open about accepting dual and multiple attribution scenarios – see André Nollkaemper, ‘Dual Attribution: Liability of the Netherlands for Conduct of Dutchbat in Srebrenica’, Journal of International Criminal Justice 9 (2011): 1143–57. These Dutch decisions have since been openly referenced by the ECtHR in the case of Jaloud.
74 See generally International Law Commission, Draft Articles on the Responsibility of International Organizations, with Commentaries, August 2011, Supplement No. 10 (A/66/10 and Add.1), Chapter 2 and Article 48(1).
75 Crawford, ‘Draft Articles', Articles 6 and 47; Bell, ‘Reassessing Multiple Attribution', 520–3.
76 International Law Commission, Draft Articles on the Responsibility of International Organizations, with Commentaries, 16.
77 Al-Jedda.
78 UNSC Res. 1546 (8 June 2004) UN Doc. S/RES/1546, annexed letter from Secretary of State Colin L. Powell.
79 R. (Al-Jedda) v. Secretary of State for Defence [2007] UKHL 58, para. 24.
80 Al-Jedda, para. 84.
81 Ibid., para. 80.
82 Sari, ‘Jurisdiction and International Responsibility', 167–9; Milanovic, ‘Al-Skeini and Al-Jedda', 136; Francesco Messineo, ‘Things Could Only Get Better: Al-Jedda beyond Behrami', Military Law and the Law of War Review 50 (2011): 337–40.
83 In this regard it is interesting to note that the ECtHR cited the passages where the Dutch Supreme Court accepted the possibility of multiple attribution of conduct extensively in Jaloud, paras 70–4.
84 Paolo Palchetti, ‘The Allocation of Responsibility for Internationally Wrongful Acts Committed in the Course of Multinational Operations’, International Review of the Red Cross 95 (2013): 740.
85 Sari, ‘Untangling Extra-territorial Jurisdiction', 11; There are also discrepancies between the ASR and ARIO as to how to test shared responsibility – Bell, ‘Reassessing Multiple Attribution', 522–4.
86 Messineo, ‘Things Could Only Get Better', 339–40.
87 Breitegger, ‘Sacrificing the Effectiveness', 157.