Jaloud v. The Netherlands and Hassan v. United Kingdom: Time for a Principled Approach in the Application of the ECHR to Military Action Abroad

Abstract

The aim of the present piece is not to undertake an examination of which of international human rights law (IHRL) and international humanitarian law (IHL) is ‘better’ or more appropriate to regulate the conduct of States in situations of armed conflict. Insofar as they prioritise different values, proponents of the two opposing camps to a large extent talk past each other and the debate is therefore necessarily somewhat sterile. Without taking a position as to which view is correct, this comment advocates the need, above all else, for a principled, predictable and consistent approach to the question of how IHRL instruments, in particular the European Convention on Human Rights, apply in situations of armed conflict and occupation and, more generally, in the context of military operations abroad. The piece takes as points of reference the 2014 judgments of the European Court in Hassan v. United Kingdom and Jaloud v. The Netherlands, which are illustrative of the ambiguous – and arguably inconsistent – approach of the Court to the question of how rights under the ECHR should be applied in situations of international armed conflict and occupation, and in particular how the relevant provisions of the Convention interact (or fail to interact) with those of IHL. The central thesis is that resort should not be had to the lex specialis principle, nor to strained applications of the principle of systemic interpretation enshrined in Article 31(3)(c) of the Vienna Convention on the Law of Treaties. Rather, whenever State Parties act in the context of an armed conflict, the mechanism for derogation under Article 15 ECHR should play the central role in mediating the relationship between the Convention and any concurrently applicable rules of IHL. To the extent that obligations under the ECHR may be inconsistent with the applicable rules of IHL (in the sense of being more restrictive), it should be for States to derogate from their obligations under the ECHR if they wish to benefit from the greater latitude which the rules of IHL afford them.