Dr Jane Rooney: european convention on human rights in armed conflict

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Date: 14 March 2018
Venue: Room 3X107, Frenchay Campus
Time: 14:00 - 16:00

The European Court of Human Rights (ECtHR) is increasingly adopting standards promulgated in the law of armed conflict (LOAC) in its judgments concerning extraterritorial armed conflict. While so far this is most noticeable in relation to detention, following from Al Jedda v UK (2011) 53 EHRR 23 and Hassan v UK App No 29750/09 (ECtHR, 16 September 2014), the same cannot be said of the ECtHR's treatment of Article 2.

Article 2 of the European Convention on Human Rights in Armed Conflict

A question arises as to whether the ECtHR sufficiently takes into account LOAC in deciding Article 2 cases which take many forms. This paper asks whether the ECtHR merely monitors state compliance with the LOAC (Gioia, 2011), provides incremental change to the regulation of armed conflict, or whether it is affecting a paradigm shift, wherein the balance has shifted towards prioritising the rights of the individual over other interests, such as security or military necessity.

The paper asks this question by analysing the ECtHR's Article 2 armed conflict jurisprudence in relation to four different areas.

First, it discusses whether the positive obligation to carry out an effective and independent investigation into deaths attributed to Member States, including Al Skeini v UK (2011) 53 EHRR 18 and Jaloud v Netherlands (2015) 60 EHRR 29, places untenable standards on states, beyond those prescribed in LOAC.

It considers whether the positive obligation to provide military personnel with adequate equipment established in the UK Supreme Court decision of Smith v Ministry of Defence [2013] UKSC 41 has any comparable source in international law.

It then questions whether the principle of non-refoulement in armed conflict established in Al-Saadoon v UK (2010) 51 EHRR 9 - whereby a state present on another territory is prohibited from transferring detainees to the territorial state when there is threat of the death penalty - has further legal foundation in international law.

This involves an analysis of bilateral agreements providing for transfer of individuals, the security threat those individuals may pose if they are released, and countervailing Article 5 requirements on the right to liberty and security which prohibit further detention.

Lastly, the paper considers whether the reasoning adopted by the ECtHR in a series of cases concerning Russian counter-terrorism measures against Chechen terrorists including Isayeva v Russia (2005) 41 EHRR 39, Finogenov v Russia App Nos 18299/03 and 27311/03 (ECtHR, First Section, 20 December 2011) and Tagayeva v Russia App No 26562/07 (ECtHR, 13 April 2017), could benefit from approaches in LOAC for establishing proportionality of use of force.

Should the ECtHR take into account, or consider by analogy, rules of armed conflict that may facilitate reasoning in use of force cases where the threshold of systematic violence is high, but falls short of established criteria of armed conflict?

Perhaps the ECtHR's current use of force jurisprudence requires a paradigm shift which encapsulates, and ensures protection rather than rejection, of principles enshrined in LOAC.

How to attend

There is no registration required for this event.

Cost: Free
Contact: Noelle Quenivet
E-mail: noelle.quenivet@uwe.ac.uk

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