Protecting Human Rights While Conducting Military Operations Abroad: a Critical Analysis of The European Court of Human Rights’ Recent Judgement in «Hanan v. Germany»

Abstract

On February 16, 2021, the Grand Chamber of the European Court of Human Rights released its judgement in Hanan v. Germany (2021). The case concerned the alleged violation of Articles 2 and 13 of the European Convention of Human Rights by Germany regarding an airstrike ordered by German Colonel Klein in Afghanistan. The case raised several questions the answers of which could be impactful for all Contracting Parties to the Convention conducting military operations abroad. This paper critically explores the past-case law by the Court and the answers given by the Court in Hanan concerning two of these questions. First, the question concerning the extraterritorial applicability of the Convention to airstrikes. This matter had previously been addressed by the Court in the highly criticised case of Banković and Others v. Belgium and Others (2001); since the facts of Hanan show various similarities to Banković, the Court in Hanan had a chance to change its position on this matter and clarify what would be the state’s responsibilities when using military force abroad. Second, the question of attribution, i.e., whether Contracting Parties operating as part of an international organisation can be held responsible for impugned acts under the Convention.