In two important cases (see Al-Skeini and Al-Jedda cases below), the ECtHR recognizes the simultaneous and complementary application in situations of armed conflict, of rules stemming from both IHL and human rights law. It specifies that the application of human rights law is restricted in conflict situations only by official derogations implemented by States in conformity with legal procedures and under the ECtHR’s supervision. Indeed, the ECtHR scrutinizes both the necessity of and the proportionality between restrictions of human rights and the threats to national security invoked by States to justify derogations from the ECHR.

The ECtHR also confirms the extraterritorial application of obligations relative to human rights in cases where a State exercises de facto control over a foreign person or territory. The ECtHR takes a special stance on the simultaneous and complementary application of human rights law and IHL, rejecting the school of thought considering that IHL should always take precedence over human rights in conflict situations because it is more specific in such situations ( lex specialis ). Instead, the ECtHR gives precedence to obligations relative to human rights over those relative to IHL when human rights obligations offer more protection to individuals (and are more binding on States) if they do not directly contradict any obligation foreseen by IHL. This jurisprudence may create some confusion, as human rights law and IHL are founded on notions that are not always equivalent, such as the right to life. This jurisprudence does, however, help prevent States from opportunistically applying the least binding or demanding law in situations of crisis and conflict.

• *Control over public order derogation to human rights

In the case of Aksoy v. Turkey ( Application no. 21987/93, Judgment [Chamber], 18 December 1996), the ECtHR set out and scrutinized the derogations from human rights that a State can make for reasons of public order, and especially in the name of the fight against terrorism within its territory. It also stipulated the obligation of prevention and investigation concerning the ill treatment and torture of people detained within this exceptional legal framework. In this decision, the ECtHR recognised that “it falls to each Contracting State, with its responsibility for “the life of [its] nation, “to determine whether that life is threatened by a “public emergency” and, if so, how far it is necessary to go in attempting to overcome the emergency.” Nonetheless, the ECtHR recalled that “Contracting Parties do not enjoy an unlimited discretion. It is for the Court to rule whether, inter alia, the States have gone beyond the “extent strictly required by the exigencies” of the crisis” (para. 68). The ECtHR also considered that “where an individual is taken into police custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation as to the causing of the injury,” failing which torture is presumed (para. 61). Concerning the obligation to exhaust domestic remedies as a condition of admissibility of an individual application, the ECtHR also recalled that in this domain it retains discretionary powers in interpreting the effectiveness of the remedies as “there is no obligation to have recourse to remedies which are inadequate or ineffective” (para. 52).

*•Precaution in maintaining public order

In the case of Ergi v. Turkey (Application no. 23818/94, Judgment [Chamber], 28 July 1998), the ECtHR determined that the responsibility of the State in the protection of the right to life is not confined to circumstances where there is significant evidence that misdirected fire from agents of the State resulted in the death of a civilian. This responsibility may also be engaged where States fail to take all feasible precautions in the choice of means and methods for the execution of a security operation mounted against an opposing group with a view to avoiding and, in any event, minimizing incidental loss of civilian life (para. 79). In the light of the failure of the authorities of the respondent State to adduce direct evidence on the planning and conduct of the ambush operation, the ECtHR found it reasonable to infer that insufficient precautions had been taken to protect the lives of the civilian population (para. 81). Contrary to what was asserted by the government of Turkey, “this obligation is not confined to cases where it has been established that the killing was caused by an agent of the State. […] In the case under consideration, the mere knowledge of the killing on the part of the authorities gave rise ipso facto to an obligation under article 2 of the European Convention to carry out an effective investigation into the circumstances surrounding the death” (para. 82).

• *Violations of ECHR in the context of armed conflict

**

• Issaieva, Youssoupova, and Bazaïeva v. Russia , Applications nos. 57947/00, 57948/00, and 57949/00, Judgment [Former First Section], (24 February 2005). In this Judgment, the ECtHR decided that Russia had violated article 2 of the ECHR (right to life), article 1 of Protocol I (protection of property) with regard to one of the applicants, and article 13 of the ECHR (right to an effective remedy).
• Khachiev and Akayeva v. Russia , Applications nos. 57942/00 and 57945/00, Judgment [Former First Section], (24 February 2005). In this judgment, the ECtHR decided that Russia had violated article 2 (right to life), article 3 (prohibition of torture) and article 13 (right to an effective remedy) of the ECHR.
• Abuyeva and others v. Russia , Applications no. 27065/05, Judgment [Former First Section], (2 December 2010). This case focuses on the attack by the Russian military forces that took place between the 2 and 7 February 2000 on the village of Katyr-Yurt, in Chechnya. The Russian forces made use of heavy free-falling aviation bombs, missiles and other arsenal which resulted in the death of 24 civilians. In the judgment, the ECtHR decided that Russia had violated article 2 (right to life) of the ECHR with respect to the applicants and for their 24 relatives who were killed as well as for the lack of effective investigation into the use of lethal force by State agents. It also decided that Russia violated article 13 (right to an effective remedy) of the ECHR. Russia undoubtedly disregarded the findings of the Court’s Judgment.

**Aside from the cases on the Chechnya conflict, other important judgments have been rendered against States for their violations of various provisions of ECHR in the context of armed conflict.

**

• Shamaiev and Others v. Georgia and Russia , Application no. 36378/02, Judgment [Second Section], (12 April 2005). In this judgment, the ECtHR decided that Georgia had violated various articles of the ECHR with regard to several applicants, as well as some of its general obligations inherent to the ECHR. It also found that Russia had violated some of its conventional obligations.

*•Extraterritoriality of ECHR

-In the Al-Skeini and Al-Jedda cases, the ECtHR set forth the extraterritorial obligations of the British armed forces involved in the international intervention in Iraq with regard to the application of the ECHR, notably as an occupying power, but also with regard to the detention of persons. Such decision is based on the notion of effective control of a State over people and location in situation of armed conflict and occupation.

-In the case of Al-Skeini and others v. The United Kingdom (Application no. 55721/07, Judgment [Grand Chamber], 7 July 2011), the ECtHR considered that, after the removal from power of the Ba’ath regime, the United Kingdom (with the United States) assumed the exercise of some of the public powers, normally to be exercised by a sovereign government, in Iraq pending the appointment of an interim Iraqi government. Therefore, according to the Court, the British government remained bound to respect the ECHR in all its acts in Iraq and with regard to the people under its control. The ECtHR specified that a contracting State to the ECHR is bound to apply the Convention even outside of its national territory and toward foreign nationals when it exercises, via its agents, control or authority over a foreign individual and whenever, as a consequence of lawful or unlawful military action, it exercises effective control of an area outside the national territory (paras. 131-140).

**In that case, the ECtHR recognized two exceptions to the principle of territoriality in the application of the ECHR. First, the ECtHR recalled that the controlling State has the responsibility to secure, within the area under its control, the entire range of substantive rights set out in the ECHR and those provided for in the Protocols it has ratified. In determining whether effective control exists, the ECtHR will primarily make reference to the strength of the State’s military presence in the area and its capacity to influence or subordinate the local administrations or authorities in this area (paras. 131-140).

**

The ECtHR also affirmed that there is an “exercise of extra-territorial jurisdiction by a Contracting State when, through the consent, invitation or acquiescence of the Government of that territory, it exercises all or some of the public powers normally to be exercised by that Government” (para. 135). It further added that “[a]nother exception to the principle that jurisdiction under Article 1 is limited to a State’s own territory occurs when, as a consequence of lawful or unlawful military action, a Contracting State exercises effective control over an area outside that national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention, derives from the fact of such control, whether it is exercised directly, through the Contracting State’s own armed forces, or through a subordinate local administration. […] [T]he fact that the local administration survives as a result of the Contracting State’s military and other support entails that State’s responsibility for its policies and actions. The controlling State has the responsibility under Article 1 to secure, within the area under its control, the entire range of substantive rights set out in the Convention and those additional Protocols which it has ratified. It will be liable for any violations of those rights” (para. 138). The ECtHR thus recalled the decision it had rendered in its judgment of 10 May 2001 in the case of Cyprus v. Turkey (para. 77).

**The ECtHR specified that “in certain circumstances, the use of force by a State’s agents operating outside its territory may bring the individual thereby brought under the control of the State’s authorities into the State’s Article 1 jurisdiction. This principle has been applied where an individual is taken into the custody of State agents abroad […] [W]henever the State, through its agents, exercises control and authority over an individual, and thus jurisdiction, the State is under an obligation […] to secure to that individual the rights and freedoms under […] the Convention that are relevant to the situation of that individual.” (paras. 136-137).

**

-In the case of Al-Jedda v. The United Kingdom (Application no. 27021/08, Judgment [Grand Chamber], 7 July 2011), the ECtHR confirmed the British government’s obligation of extraterritorial application of the ECHR in its military activities in Iraq as an occupying power and in view of its detention of persons in this territory. The ECtHR has developed an interesting interpretation of the principle of primacy of the special law. Indeed, it considers that the rules of the ECHR continue to apply in conflict situations provided that they are not in direct contradiction with those of IHL. The ECtHR thus gives precedence to the more protective rules of the ECHR over the other more permissive provisions stemming from the law of armed conflicts and to the mandates of international forces under United Nations resolutions permitting occupying powers to intern individuals (paras. 105, 107 and 109).

**“The Court does not consider that the language used in this Resolution [1546] indicates unambiguously that the Security Council intended to place Member States within the Multi-National Force under an obligation to use measures of indefinite internment without charge and without judicial guarantees, in breach of their undertakings under international human rights instruments including the Convention.” (para. 105). Although the Security Council Resolution 1546 authorized the Multi-National Force to take all necessary measures to help maintain security and stability in Iraq, “[i]n the absence of clear provision to the contrary, the presumption must be that the Security Council intended States within the Multi-National Force to contribute towards the maintenance of security in Iraq while complying with their obligations under international human rights law.” (para. 105). Besides, in the ECtHR’s view, “it would appear from the provisions of the Fourth Geneva Convention that under international humanitarian law internment is to be viewed not as an obligation on the Occupying Power but as a measure of last resort” (para. 107). Consequently, the United Kingdom remained bound by its obligations with regard to article 5 of the ECHR: “in the absence of a binding obligation to use internment, there was no conflict between the United Kingdom’s obligations under the Charter of the United Nations and its obligations under Article 5 § 1 of the Convention.” (para. 109).

**

-However, the extraterritorial application of ECHR is limited to exceptional circumstances such as the effective control of a State in situation of armed conflict and occupation. The case M.N. and others v. Belgium (Application no. 3599/18, Judgment [Grand Chamber], 5 May 2020) dealt with the extraterritorial application of the ECHR to “humanitarian visas”. The applicants contended that Belgium violated their rights under the Convention by refusing their humanitarian visa applications. However, the ECtHR reaffirmed the territoriality of the CEDH and the requirement for exceptional circumstances to extend the application of the Convention extraterritorially, such as extradition or expulsion cases, extraterritorial effects cases and effective control cases. (See B anković and others v. Belgium and others (Application no. 52207/99, Judgment [Grand Chamber], 12 December 2001).

-The case H.F. and/et M.F. v. France (Application no.24384/19, Judgment [Grand Chamber], 14 September 2022) concerned the refusal of the French government to repatriate French detained in Syrian camps. The ECtHR examined if the refusal to repatriate the applicants’ daughters and grandchildren exposed them to inhuman and degrading treatment, in violation of article 3 of the ECHR. The Court found that France did not have extraterritorial jurisdiction under article 3 regarding ill-treatment in Syrian camps. However, the ECtHR recognized a jurisdictional link in violation of article 3(2) of Protocol No. 4, concerning the right to enter one’s own country, and the lack of an effective remedy to challenge the government’s refusal, in violation of article 13 and article 3(2) of Protocol No. 4. Due to the specific circumstances, including the applicants’ official requests for repatriation, the real and immediate threat to their relatives’ lives, and the inability of the relatives to return to their country without government assistance, the ECtHR ruled that the French authorities’ examination of repatriation requests lacked safeguards against arbitrariness, leading to a violation of article 3(2) of Protocol No. 4 (right to enter one’s own country).

•Compensation

-In two Judgments of 16 June 2015 regarding the Nagorno-Karabakh conflict between Armenia and Azerbaijan (see Chiragov and Others v. Armenia , (Application no. 13216/05, Judgment (Merits) [Grand Chamber], 16 June 2015) and Sargsyan v. Azerbaidjan , (Application no. 40167/06, Judgment [Grand Chamber], 16 June 2015), the ECtHR, stated that if the access to the property (art. 1 of Protocol No. 1 (Protection of Property)) was not possible (due to the occupation of the region), the state must offer compensation (art. 41 of the ECHR (Just satisfaction)) to any citizen living on its territory since the state is not relieved, even though peace negotiations were ongoing, of its obligation to take other measure, such as the one of compensation. The Court also concluded to a violation of art. 8 (Right to respect for private and family life) and 13 (Right to an effective remedy) of the ECHR.

• Amnesty for war crimes

-In the Marguš v. Croatia case (Application no. 4455/10, Judgment [Grand Chamber], 27 May 2014), the ECtHR declared inadmissible the complaint under article 4 of Protocol No. 7 as regards to the applicant’s right not to be tried or punished twice in respect of charges dropped in January 1996 as part of an amnesty act in connection with the Croatian war of 1990 to 1996. The ECtHR found that there was a growing tendency in international law to see the granting of amnesties in respect of grave breaches of human rights as unacceptable (para. 139). It concluded that by bringing a new indictment against the applicant and convicting him of war crimes against the civilian population, the Croatian authorities had acted in compliance with the requirements of article 2 (right to life) and article 3 (prohibition of torture and inhuman or degrading treatment) of the ECHR and consistent with the recommendations of various international bodies (para. 140).

• Detention under ECHR and IHL

The case of Hassan v. the United Kingdom (Application no. 29750/09, Judgment [Grand Chamber], 16 September 2014) concerned the acts of British armed forces in Iraq, extra-territorial jurisdiction and the application of the ECtHR in the context of an international armed conflict. It was the first case in which a State had requested the Court to disapply its obligations under article 15 of the ECHR or in some other way to interpret them in light of powers of detention available to it under IHL. The ECtHR decided that there had been no violation of article 5 (Right to liberty and security) of the ECHR and that there had been legitimate grounds under international law for capturing and detaining the applicant’s brother. The Court declared that IHL and the ECHR both provided safeguards from arbitrary detention in time of armed conflict and that the grounds of permitted deprivation of liberty set out in article 5 should be accommodated, as far as possible, with the taking of prisoners of war and the detention of civilians who pose a risk to security under the Third and Fourth Geneva Conventions (paras. 104-06). The ECtHR concluded by stating that “it [not] necessary for a formal derogation to be lodged [under Article 15 of the ECHR], the provisions of Article 5 will be interpreted and applied in the light of the relevant provisions of international humanitarian law only where this is specifically pleaded by the respondent State. It is not for the Court to assume that a State intends to modify the commitments which it has undertaken by ratifying the Convention in the absence of a clear indication to that effect” (para. 107).

• *Duty of investigation of civilian death

-In a case involving a violation of article 2 (Right to life) of the ECHR due to an alleged ineffective and partial investigation into the circumstances surrounding the death of an Iraqi civilian who died of gunshot wounds perpetrated by Netherlands Royal Army personnel in Iraq in April 2004, the ECtHR concluded to a violation. The Court recognised that the Netherlands military and investigators, being engaged in a foreign country in the aftermath of hostilities, had worked in difficult conditions. However, it stressed that the shortcomings in the investigation, which had seriously impaired its effectiveness, could not be considered inevitable, even in those conditions. (See Jaloud v. the Netherlands, (Application no. 47708/08, Judgment [Grand Chamber], 20 November 2014, paras. 226-228).

-The case Hanan v. Germany (Application no. 4871/16, Judgment [Grand Chamber], 16 February 2021) focused on an airstrike in Kunduz, Afghanistan, that resulted in civilian casualties. Abdul Hanan, who lost his two sons in the strike, argued that Germany failed to effectively investigate the incident, violating the right to life (art. 2 of the ECHR). The ECtHR found that Germany had jurisdiction due to its exclusive criminal jurisdiction over its troops in Afghanistan. Therefore, Germany had the obligation to investigate under IHL and domestic law. However, Hanan’s claim was not upheld as the ECtHR deemed the investigation by the German authorities, which was reviewed by the German Federal Constitutional Court, to be effective. The ECtHR considered that the procedural requirements was met under international humanitarian law and the criterion of article 2 of the ECHR, despite some shortcomings. Notably, this case underlines the extraterritorial application of human rights obligations and the procedural obligation to investigate deaths resulting from military operations abroad (See Al-Skeini and others v. The United Kingdom (Application no. 55721/07, Judgment [Grand Chamber], 7 July 2011).

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**

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