Al-Skeini may open door to more war claims

15 August 2011 by Melina Padron

The recent European Court of Human Rights (ECtHR) judgment in Al-Skeini will certainly enter the Court’s hall of fame as a landmark judgment for pushing the boundaries of the European Convention on Human Rights’s jurisdiction. While it may take us some time to appreciate the full implications of this judgment, one of its possible consequences is the potential opening of the Court’s doors to claims arising from international armed conflicts.

by Melinda Padron

In Al-Skeini, the ECtHR determined that there may be instances when the European Convention on Human Rights may apply outside the ‘espace juridique’, that is the Convention’s ‘legal space’, or within the territories of the Convention’s member states (see Alasdair Henderson’s post on the ruling, which concerned Article 1 of the Convention). This may occur when agents of a member state are exercising authority and control over individuals (personal rather than strictly territorial control) within a given territory upon which that same member state is exercising some public powers. Accordingly, in the case of Al-Skeini, the Convention was found to be applicable to actions taken by British troops in Basra (Iraq), where the UK assumed the exercise of some of the public powers normally exercised by a sovereign government (see paras. 149-150 of the judgment).

It is possible to envisage that this kind of control may be found in certain situations of international armed conflict, and that the Convention may apply to such circumstances if its member states are involved.

Al-Skeini may have opened the door for the ECtHR to serve as an alternative means to provide accountability for the most serious violations of international humanitarian law (i.e. the laws of armed conflict, hereinafter “IHL” – you can find the various treaties which are part of this body of rules here). These include, for example: willful killing, torture or inhumane treatment. IHL has its own accountability mechanisms, such as fact-finding commissions, international and domestic prosecutions, and state responsibility.

Fact-finding commissions (Article 90 of Additional Protocol I to the Geneva Conventions 1977) have competence to inquire into allegations of “grave breaches” or other serious violations of Geneva Conventions and Additional Protocols and to facilitate compliance with the Geneva Conventions through its good offices. Accordingly, so far they have not been used, and this failure may be attributed to some of its own defining features (e.g. the acceptance of its jurisdiction is not compulsory and it does not publicly communicate the outcome of its investigations).

States also have a duty to compensate for breaches of IHL (Article 3 Hague Convention of 1907; and Article 91 Additional Protocol I). It remains unclear whether this obligation is owed to states only or whether it extends to individuals. This modality of accountability has been largely neglected, used only in rare instances such as the United Nations Compensation Commission and the Ethiopia and Eritrea Claims Commission. In both of those instances individuals had no direct access to the procedures.

From the codification of individual criminal responsibility in the Geneva Conventions, stem three fundamental obligations which fall upon state-parties involved in international armed conflicts:

“to enact special legislation on the subject, (…) to search for any person accused of violation of the Convention, and the obligation to try such persons or (…) to hand them over for trial to another state concerned. (Art 49 of the Geneva Convention I of 1949)

Prosecutions occur both at the international level (e.g. the International Criminal Court), but for reasons which will not be discussed here, domestic prosecutions remain the most desirable means of accountability for violations of IHL. They are an effective means of deterrence because they occur closer to those affected by the conflict (society, victims and perpetrators), and on a practical level are closer to the necessary evidence for an effective trial. Leaving aside states which do not have a fair and effective judicial system, those states which do are often reluctant to carry out such prosecutions, especially when it involves their own officials. Even when efforts are made, other obstacles come into play, such as a limited exercise of universal jurisdiction, statutory limitations and the issuance of blanket amnesties.

The lack of effectiveness of these mechanisms is thus a consequence of their heavy state-dependency (combined with states’ unwillingness to act) and the lack of direct participation of individuals.

The ECtHR provides victims with direct access to the court and a more certain means of achieving compliance. Admittedly, the record of compliance is not perfect, but it is far better than that of IHL. Although the ECtHR’s principal remedy is that of a declaration of breach, states have for the most part remedied their violations.

It is thus conceivable that the ECtHR could provide a useful alternative route to compel states to give effect to prosecutions of those responsible for serious breaches of IHL when those breaches also constitute violations of the Convention.

There are many obstacles to this proposition, one of which relates to the simultaneous application of IHL and the Convention in situations of international armed conflict. Although both bodies of law share certain core values, IHL makes room for the harsh realities of war. Putting it at its simplest, take for example the right to life: under the Convention,states have an obligation not to kill (being only allowed to use lethal force if under an honest belief that it is absolutely necessary to do so). Under IHL, however, the threshold is much lower and killing is, to a regulated extent, allowed.

Therefore, the ECtHR when dealing with cases of international armed conflict would have to interpret the Convention in light of the rules of international armed conflict. It is questionable whether the ECtHR has the necessary expertise to do so. This remains a grey area in international law, and one which academics are currently wrestling with. Nevertheless, recourse to the ECtHR as a means to compel states to investigate and prosecute those responsible for violations of IHL, however flawed, is arguably better than no accountability at all.

Whether the decision in Al-Skeini has really opened the doors for cases arising from situations of armed conflict to be brought before the ECtHR remains to be seen. We can see from commentaries by Marko Milanovic and Alasdair Henderson that the ECtHR seems to have conflated two previously separate means of establishing extraterritorial application of the Convention without actually explaining satisfactorily how it reached that conclusion. Such an approach was aimed at rejecting the restrictive approach to jurisdiction adopted by the House of Lords in Al-Skeini (i.e. the ‘espace juridique’ theory) but was perhaps also a way to leave the ECtHR enough room for manoeuvre should it feel the need to reject the extraterritorial application of the Convention in future controversial cases.

I suspect in the near future we will see cases before the ECtHR testing the boundaries of its approach to extraterritoriality in Al-Skeini. Whether the ECtHR will be used by those seeking some sort of relief for victims of international armed conflicts left helpless by IHL’s accountability mechanisms remains to be seen.

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