The European Court of Human Rights’ Approach to Armed Conflict and Humanitarian Law: Ivory Tower or Pas de Deux?

Abstract

INTRODUCTION The European system of human rights protection came into being in 1950 with the adoption of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) by the then newly formed Council of Europe. The European Convention laid down a series of fundamental guarantees accorded to all individuals as protection against undue government interference and institutionalised human rights protection through the creation of the European Court of Human Rights (ECtHR). Interestingly, although the ECHR was adopted in the immediate aftermath of World War Two, the possibility of its provisions being applied to situations of armed conflict was not given serious thought during the drafting process and the ECHR was therefore principally conceived to apply in times of peace. In spite of this, the ECtHR has, in past decades, increasingly been called upon to apply its provisions in cases in which the conduct of the military forces of one of the States parties in the course of armed conflicts was at the heart of the issue. Applications filed in the wake of and in relation to the Turkish occupation of Cyprus or the Kosovo, Chechnya and Iraqi conflicts are cases in point. Considering this reality, two particular and overarching questions come to mind, each of which will be discussed in detail below. The first relates to the processes leading up to the increased engagement of the ECtHR with cases stemming out of armed conflict. As mentioned above, at the time of its inception, it was assumed that the Convention's scope of application would not extend to situations of armed conflict. These were to be governed by international humanitarian law (IHL), the body of law specifically designed to regulate the means and methods of warfare and to provide protection for persons who were not participating in the fighting. This has meant that, for the better part of its existence, the ECtHR did not need to consider cases relating to the conduct of hostilities. Looking at the number of applications that have been filed in the past two decades in relation to alleged violations committed by the armed forces of State parties in the course of military operations, one might wonder what has changed.