1. Cedric De Koker t. +32 9 264 69 48 f. +32 9 264 69 71 Cedric.DeKoker@UGent.be T HE E UROPEAN C OURT OF H UMAN R IGHTS ’ A PPROACH TO A RMED C ONFLICT Ivory Tower or Pas de Deux

2. researchpublicationsconsultancyconferences www.ircp.org Cedric De Koker +32 9 264 69 48 Cedric.DeKoker@UGent.be  In classic public international law, international humanitarian law and international human rights law (of which the ECHR forms part) were considered to be two distinct and mutually exclusive bodies of law, conceived for different situations and with different theoretical considerations in mind.  The ECHR, as part of human rights law, was primarily conceived to apply in times of peace  Regulation of the conduct of hostilities and protection of victims of armed conflict were considered to be the sole province of international humanitarian law and military lawyers  A changed legal landscape today – Three key developments have played a determinative role in eroding the strict separation between the law of war and the law of peace  Inadequacy of traditional IHL enforcement mechanisms  Acceptance of continued applicability ECHR in times of armed conflict  Gradual acceptance of extraterritorial application ECHR I NCREASED ENGAGEMENT WITH ARMED CONFLICT Human Rights Integration Conference – 10 december 2015 2

3. researchpublicationsconsultancyconferences www.ircp.org Cedric De Koker +32 9 264 69 48 Cedric.DeKoker@UGent.be  The ECtHR has not been blind to the realities of armed conflict in interpreting and applying the Convention  Applying rights in a ‘practical and effective’, rather than ‘theoretical and illusory’  The Court is prepared to make reasonable allowances for the relatively difficult conditions in which the armed forces are required to work  Quid international humanitarian law and its possible impact on the application of the ECHR?  No competence to directly monitor international humanitarian law (IHL)  Nevertheless, hooks in the European Convention and general public international law to resort to IHL as an interpretative tool (Article 15 ECHR & Article 31, §3 (c) VCLT)  Bifurcated approach towards IHL – Different treatment of cases relating to international and non-international armed conflict A PPROACH TO CONFLICT AND HUMANITARIAN LAW Human Rights Integration Conference – 10 december 2015 3

4. researchpublicationsconsultancyconferences www.ircp.org Cedric De Koker +32 9 264 69 48 Cedric.DeKoker@UGent.be  Evolution in the Court’s approach to IHL in cases stemming out of international armed conflict:  Initially, complete disregard for norms and standards of IHL  Later, reference to IHL as an interpretative tool for HRL  Discussion on IHL norms in ‘applicable law’ section, but little impact on decisions of the Court (see Al-Skeini v. UK & Varnava and others v. Turkey)  Most recently, explicit engagement with IHL and dual application of HRL and IHL in Hassan v. United Kingdom (2014)  ‘the grounds of permitted deprivation of liberty set out in subparagraphs (a) to (f) of that provision 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’ (para. 104).  However, decision limited to international armed conflict and the deprivation of liberty A PPROACH TO CONFLICT AND HUMANITARIAN LAW Human Rights Integration Conference – 10 december 2015 4

5. researchpublicationsconsultancyconferences www.ircp.org Cedric De Koker +32 9 264 69 48 Cedric.DeKoker@UGent.be  Different strategy with regard to cases stemming out of Non-international armed conflict:  Ample opportunity to apply IHL in armed conflict related cases (Northern Ireland, South-East Turkey, Chechnya), but no explicit attempts to do so  No references to Geneva Conventions or Additional Protocols  Argument that the ECtHR has implicitly applied IHL not convincing  Instead, use of a ‘law enforcement’-model in assessing the conduct of States (see McCann v. United Kingdom)  single regime of basic rules applicable to all situations ranging from riots and situations of violence falling just short of the armed conflict threshold, through relatively small-scale skirmishes in a low-intensity conflict, to cases of protracted and full-blown armed confrontations between State armies and/or non-state actors – see e.g. right to life cases  Reasons for doing so are arguably policy-based, rather than strictly legal A PPROACH TO CONFLICT AND HUMANITARIAN LAW Human Rights Integration Conference – 10 december 2015 5

6. researchpublicationsconsultancyconferences www.ircp.org Cedric De Koker +32 9 264 69 48 Cedric.DeKoker@UGent.be 1.A combination of legal developments has led to the introduction of conflict-related cases with the ECtHR 2. In examining these cases, the ECtHR has had regard for the relatively difficult conditions in which the armed forces are required to work and took these into account when applying the ECHR 3.Yet, ‘the parameters of the proper role of the European Court of Human Rights in relation to international humanitarian law is still work in progress’ (Madame Rosalyn Higgins).  Signs of improvement in relation to international armed conflicts  Longstanding ‘ivory tower’- mindset persists in non-international armed conflicts  has resulted in decisions that are likely to be received by specialists in humanitarian law with some disquiet  Transparant process of reasoning would be step forward C ONCLUSION Human Rights Integration Conference – 10 december 2015 6

7. www.ircp.org Contact Cedric De Koker t. +32 9 264 69 48 f. +32 9 264 69 71 Cedric.DeKoker@UGent.be IRCP Ghent University Universiteitstraat 4 B – 9000 Ghent