The Practical Guide to Humanitarian Law

« Calling things by the wrong name adds to the affliction of the world. » Albert Camus.

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European Court of Human Rights

Jurisdiction

The European Court of Human Rights, based in Strasbourg, France, is mainly responsible for guaranteeing respect for human rights and ruling on any violations of the 1950 European Convention on Human Rights (Arts. 32, 33, and 34 of the ECHR) allegedly committed by a Member State of the Council of Europe.

This mission was first entrusted to two bodies, the European Commission and the Court of Human Rights. Then, on 1 November 1998, Protocol 11 to the European Convention on Human Rights entered into force, amending the 1950 text and reforming the entire European system of human rights protection. The original two-tiered system was replaced with a single, permanent European Court of Human Rights with jurisdiction over all Member States of the Council of Europe. The Court accepts applications of instances of human rights violations from both State and non-state entities (whether persons, NGOs, or groups of individuals)

In May 2004, Member States of the Council of Europe adopted Protocol 14 to the ECHR, thereby initiating a second reform of the Court. This Protocol entered into force on 1 June 2010.

Officially, these two successive reforms were intended to maintain and strengthen the effectiveness of the European system of human rights protection and to help the Court cope with a significant increase in its caseload and the growing number of members of the Council of Europe. The purpose of the second reform, in particular, was to simplify the screening process for individual applications and to facilitate the study of the merits of these applications.

In addition to dealing with contentious cases, the Court also has an advisory mandate (Arts. 32 and 47 of the ECHR). At the request of the Committee of Ministers of the Council of Europe, it may give advisory opinions on questions of interpretation of the European Convention on Human Rights and its Protocols.

Composition of the Court

The Court is composed of as many judges as there are States Parties to the Convention (as of April 2013, all forty-seven Member States of the Council of Europe had signed and ratified the Convention). These judges are elected by the Parliamentary Assembly of the Council of Europe, from a list of three individuals put forth by each Member State.

The judges are independent (meaning they sit on the Court in their individual capacity and do not represent a State), and since the entry into force of Protocol 14, they have had a nine-year, non-renewable mandate. They elect the Court’s president, two vice presidents (who are also presidents of Section), two presidents of Section, four vice presidents of Section, the registrar, and two adjunct registrars. They also draft the Rules of Procedure for the Court. A new set of rules was adopted following the reform of the system of human rights protection. The most recent Rules of Procedure were adopted in April 2012 and entered into force in September 2012.

Key Characteristics of the European Court of Human Rights

  • All Member States of the Council of Europe are automatically and obligatorily subject to the Court’s jurisdiction.
  • Any Member State of the Council of Europe may bring a claim before the Court, if it alleges that another Member State violated the European Convention on Human Rights (State applications, as foreseen in Art. 33 of the ECHR). However, it is very rare for one Member State to submit allegations against another. Only sixteen cases have been presented by States since the creation of the Court, compared to more than hundreds of thousands initiated by individuals. Cases presented by States often take place in the broader context of conflicts, such as Ireland v. United Kingdom and Cyprus v. Turkey in the seventies and nineties, or the three Georgia v. Russia cases since 2007.
  • Claims may also be referred to the Court by individuals (citizens of a State party to the European Convention on Human Rights, refugees, stateless persons, and minors prevented from doing so domestically because of national laws), NGOs, or groups of individuals alleging that they were victims of a violation of the rights defended by the European Convention (individual applications, as foreseen in Art. 34 of the ECHR).
  • Member States of the Council of Europe are under the obligation “not to hinder in any way the effective exercise” of the right to submit individual applications (Art. 34).
  • Individual applicants may submit complaints themselves, using a form available at the Court’s Registry. However, once the application has been filed, it is recommended that they take legal representation. The Court has set up a system of legal aid for applicants who lack sufficient means to pay for such representation.
  • Individual applications are subject to conditions of admissibility, which are always interpreted in favor of the victim. Thus, the criteria requiring that the remedies under domestic law have been exhausted can be rejected by the Court for various reasons: when it is not possible—in practice—to have access to such recourse; if there has been unwarranted delay in the national proceedings; or if the State only initiated such proceedings when the case was referred to the Court, in an attempt to avoid coming under its jurisdiction.

The Court is made up of four Sections and a Grand Chamber. The composition of each Section is fixed for three years and is based on criteria of equitable representation. The Court is geographically and gender-balanced and takes into account the different legal systems of the Member States of the Council of Europe. Within each section, committees of three judges are set up for twelve-month periods and Chambers of seven members are constituted on a rotating basis.

The Grand Chamber consists of seventeen judges elected for three years. In addition to the ex officio members (the Court’s president, two vice presidents, and the two other Section presidents), the Grand Chamber is composed of judges from two groups who rotate every nine months. Once again, these groups take into account the equitable representation in terms of geography, gender, and legal system within Member States of the Council of Europe.

The Grand Chamber is responsible for examining applications for advisory opinions on questions regarding the interpretation of the European Convention. It can intervene, exceptionally, in contentious cases.

Contentious Cases

Admissibility Criteria

State applications are not subject to admissibility criteria. Individual applications must, however, meet a number of admissibility criteria (Art. 35 of ECHR).

In addition to having first exhausted all domestic legal remedies, applications must not be anonymous, must not be incompatible with the provisions of the European Convention on Human Rights in any way, and must not be clearly ill founded or an abuse of the right of application. The application submitted cannot be the same as another examined previously by the Court or also submitted to another international organ of inquiry or dispute settlement, unless it contains new information.

Protocol 14 has added another admissibility criterion, according to which the Court may consider an individual application inadmissible where the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on its merits and if the case has not been duly considered by a domestic tribunal (Art. 12 of Protocol 14). This new admissibility criterion has been criticized by human rights organizations as well as by several Member States and the Parliamentarian Assembly of the Council of Europe, which consider it to be too vague and liable to endanger the right to individual application. In practice, it is up to the judges to interpret these new provisions. The judges’ discretionary powers in this domain have been affirmed by the Court’s jurisprudence, which recognizes, for example, that the criterion of exhaustion of domestic remedies is required only in cases where these remedies are effectively available and credible.

Either a Committee of three judges or a Chamber with seven judges rules on the case’s admissibility. If a three-judge Committee sits, and if this Committee declares the application admissible, it will be forwarded to a Chamber. Since Protocol 14 entered into force, it has become possible for a single judge to decide on individual applications (but a judge may not examine any application against the State in respect of which he has been elected): the single judge will either declare the application inadmissible or forward it to a Committee or to a Chamber for further examination.

The Chamber may relinquish jurisdiction in favor of the Grand Chamber if a case raises a serious question affecting the interpretation of the Convention, or where the resolution of a question before the Chamber might have a result inconsistent with a judgment previously delivered by the Court (Art. 30 of ECHR). Parties to the case wishing to object to this relinquishment must do so within one month of notification of the intention to relinquish.

Procedure Relative to Merits

The procedure for examining individual and State applications carried out by the Court and the parties’ representatives is adversarial and public. The Chamber or Grand Chamber may decide to carry out an investigation. All concerned States are under the obligation to cooperate with such an investigation (Art. 38.1.a of ECHR).

Throughout the procedure on the merits, the registrar can conduct confidential negotiations, with the aim of reaching a friendly settlement to the dispute. Since Protocol 14 entered into force, a Committee of three judges decides on the merits of an application (until then only the Chamber and the Grand Chamber have had such jurisdiction). However, the Committee will only have jurisdiction when the underlying question in the case is already a subject of well-established jurisprudence of the Court.

The Court’s judgments are final and binding on the States concerned (Art. 46). They may include compensation for the victim (Art. 41). The Committee of Ministers of the Council of Europe is responsible for supervising the execution of judgments. The State found to be in breach of the Convention must take adequate measures to remedy the violation but is not automatically obliged to amend its law or its practice. However, in these situations, States sometimes do amend their legislation, regulations, or practices so as to avoid further sentencing.

If a case raises serious questions of interpretation or application of the Convention or its Protocols or other serious issues of general importance, any party to a dispute may request that the case be referred to the Grand Chamber within three months of the date of a Chamber’s initial judgment (Art. 43). A Grand Chamber panel of five judges examines the request and decides whether it is admissible.

Jurisprudence

Although the European Court of Human Rights was created to guarantee respect for the European Convention on Human Rights, it has declared itself competent to receive applications concerning violations of human rights and humanitarian law in situations of armed conflict and military occupation.

It has thus passed judgment on cases concerning the war in Northern Ireland, Cyprus, Chechnya, Turkey’s antiterrorism legislation, and antiterrorist legislations and practices after the terrorist attacks of 2001 in New York, USA. It has also more recently ruled on the conditions of the UK’s military intervention in Iraq in 2003 as part of the U.S.-led Multi-National Force. The ECHR’s jurisprudence addresses a certain number of legal points that are subjects of international debate.

It recognizes the simultaneous and complementary application in conflict situations of rules stemming from both international humanitarian law 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 Court’s supervision. Indeed, the Court scrutinizes both the necessity of and the proportionality between restrictions to human rights and the threats to national security invoked by States to justify derogations from the European Convention.

It 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 Court takes a special stance on the simultaneous and complementary application of human rights law and international humanitarian law. Contrary to those who think that international humanitarian law should take precedence over human rights in conflict situations because it is more specific in such situations ( lex specialis ), the Court adopts a different position. It gives precedence to obligations relative to human rights over those relative to international humanitarian law when these offer more protection to individuals (and are more binding on States) and in cases where they are not in direct contradiction with a contrary obligation foreseen by international humanitarian law. This jurisprudence may create some confusion, as the contents and interpretation of the rules relative to human rights and international humanitarian law are founded on notions that are not always equivalent, such as the right to life. They do, however, help to prevent an opportunistic application by States of the least binding and demanding law in situations of crisis and conflict.

In the case of Aksoy v. Turkey (Application no. 21987/93, Judgment [Chamber], 18 December 1996), the Court 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.

The Court 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 Court 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 Court 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 Court 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).

In the case of Ergi v. Turkey (Application no. 23818/94, Judgment, 28 July 1998), the Court considered 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 has killed a civilian. It may also be engaged where States fail to take all feasible precautions in the choice of means and methods of a security operation mounted against an opposing group with a view to avoiding and, in any event, to 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 Court found that it could reasonably be inferred 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 Convention to carry out an effective investigation into the circumstances surrounding the death (para. 82).

In two judgments of 24 February 2005, the Court considered admissible applications filed by victims of crimes committed by the Russian army in Chechnya.

  • Issaieva, Youssoupova, and Bazaïeva v. Russia , Application nos. 57947/00, 57948/00, and 57949/00, Decision of the Court (24 February 2005). In this Judgment, the Court decided that Russia had violated Article 2 of the ECHR (right to life), Article 1 Protocol I (protection of property) with regard to one of the applicants, and Article 13 (right to an effective remedy).
  • Khachiev and Akaieva v. Russia , Application nos. 57942/00 and 57945/00, Decision of the Court (24 February 2005). In this judgment, the Court decided that Russia had violated Article 2 of the ECHR, Article 3 of the ECHR (prohibition of torture), and Article 13.
  • Chamaiev and Others v. Georgia and Russia , Application no. 363778/02, Decision of the Court (12 April 2005). In this judgment, the Court decided that Georgia had violated various articles of the Convention with regard to several applicants, as well as violations of some of its general obligations inherent to the Convention. It also found that Russia had violated some of its conventional obligations.

In the Al-Skeini and Al-Jedda cases, the Court set forth the extraterritorial obligations of the British armed forces involved in the international intervention in Iraq with regard to the application of the Convention, notably as an occupying power, but also with regard to the detention of persons.1

In the Case of Al-Skeini and others v. United Kingdom (Application no. 55721/07, Judgment (Grand Chamber), 7 July 2011), the Court 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 European Convention in all its acts in Iraq and with regard to the people under its control.The Court specified that a contracting State to the European Convention 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. 131–40).

The Court recognized two exceptions to the principle of territoriality in the application of the European Convention. First, the Court 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 Convention and those provided for in the Protocols it has ratified. In determining whether effective control exists, the Court 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. 131–40).

The Court 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 the “other 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. . . . The 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 Court thus recalled the decision it had rendered in its judgment of 10 May 2001 in the case Cyprus v. Turkey (para. 77).

The Court 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. . . . Whenever 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. 136–37).

According to the Court, “it is a question of fact whether a Contracting State exercises effective control over an area outside its own territory. In determining whether effective control exists, the Court will primarily have reference to the strength of the State’s military presence in the area. . . . Other indicators may also be relevant, such as the extent to which its military, economic and political support for the local subordinate administration provides it with influence and control over the region” (para. 139).

In the case of Al-Jedda v. the United Kingdom (Application no. 27021/08, Judgment [Grand Chamber], 7 July 2011), the Court confirmed the British government’s obligation of extraterritorial application of the European Convention in its military activities in Iraq as an occupying power and in view of its detention of persons in this territory. The Court has developed an interesting interpretation of the principle of primacy of the special law. Indeed, it considers that the rules of the European Convention continue to apply in conflict situations provided that they are not in direct contradiction with those of international humanitarian law. The Court thus gives precedence to the more protective rules of the European Convention 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 Security Council Resolution 1546 authorized the Multi-National Force to take all necessary measures to help maintain security and stability in Iraq, “in 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 Court’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 European Convention: “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).

Human rightsIndividual recourseOccupied territoryReparation (Compenation)Torture

List of States Party to International Humanitarian Law and Human Rights Conventions (no. 10)

European Court of Human Rights

Council of Europe

67075 Strasbourg Cedex, France

Tel.: (33) 03 88 41 20 18

Fax: (33) 03 88 41 27 30

@ http://www.echr.coe.int/echr

For Additional Information: Costa, Jean-Paul, and Michael O’Boyle. “The European Court of Human Rights and International Humanitarian Law.” In La Convention européenne des droits de l’homme, un instrument vivant: Mélanges en l’honneur de Christos L. Rozakis. Bruxelles: Bruylant, 2011.

Doswald-Beck, Louise. Human Rights in Times of Conflict and Terrorism . Oxford: Oxford University Press, 2011.

Hampson, Françoise. “Relationship between IHL and HR from the Perspective of a Human Rights Treaty Body.” International Review of the Red Cross 871 (2008): 549–72.

Heintze, Hans-Joachim. “The European Court of Human Rights and the Implementation of Human Rights Standards during Armed Conflicts.” German Yearbook of International Law 45 (2003): 60–81.

Milanovic, Marko. Extraterritorial Application of Human Rights Treaties: Law, Principles and Policy. Oxford: Oxford Monographs in International Law, 2011.

Pejic, Jelena. “The European Court of Human Rights’ Al-Jedda Judgment: The Oversight of International Humanitarian Law.” International Review of the Red Cross 883 (September 2011): 837–51.

Sassòli, Marco. “The European Court of Human Rights and Armed Conflicts.” In Human Rights, Democracy and the Rule of Law: Liber Amicorum Luzius Wildhaber , edited by Stephan Breitenmoser et al., 724–25. Zurich: Dike, 2007.

Wildhaber, Luzius. “European Court of Human Rights.” Canadian Yearbook of International Law 40 (2003): 309–22.

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