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Home Armed Conflict Turkey, Aggression, and the Right to Life Under the ECHR

Turkey, Aggression, and the Right to Life Under the ECHR

Published on October 21, 2019        Author: 
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Turkey’s latest invasion of Syria violates the prohibition of interstate armed force. It cannot be justified by Turkey’s right of self-defense (see here and here). What follows? Among other things, each and every person killed by Turkish forces and agents is killed in violation of her human right to life. Every civilian killed in violation of international humanitarian law. Every combatant or fighter killed without violation of international humanitarian law. Everyone. Let me explain.

The International Covenant on Civil and Political Rights provides that “No one shall be arbitrarily deprived of his life.” According to the Human Rights Committee’s General Comment No. 36 on the right to life, “[d]eprivation of life is, as a rule, arbitrary if it is inconsistent with international law.” It follows that “States parties [to the Covenant] engaged in acts of aggression as defined in international law, resulting in deprivation of life, violate ipso facto article 6 of the Covenant.” This much is well known.

The European Convention on Human Rights provides that “[n]o one shall be deprived of his life intentionally” except in cases of capital punishment or when absolutely necessary to defend a person from unlawful violence; to effect a lawful arrest or prevent the escape of a person lawfully detained; or to quell a riot or insurrection. It follows that States parties to the Convention engaged in acts of aggression as defined in international law, resulting in intentional deprivation of life, violate ipso facto article 2 of the Convention. I am told this is less well known.

Article 15 of the ECHR provides that

In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.

A State party that intentionally kills opposing combatants or civilians through acts of aggression takes measures derogating from its obligations under the Convention that are inconsistent with its other obligations under international law. Such derogations are not permitted.

The ordinary meaning of the terms of article 15 is confirmed by the preparatory work, which reveals that

it was proposed, unsuccessfully, that in order to avoid any possible misunderstanding of the words “international law”, there should be in addition to these words a reference to the “principles of the Charter [of the United Nations] and the Universal Declaration of Human Rights”. The opinion was expressed that reference to the Charter would also make it clear that war was recognized only in case of self-defense or for other reasons consonant with the Charter. It was pointed out, however, that the principles of the Charter were part of international law and that the provisions of the Universal Declaration might not be considered as such.

Since the principles of the Charter “were part of international law,” measures derogating from the obligation not to intentionally kill may be taken in time of war “only in case of self-defense or for other reasons consonant with the Charter.”

Article 15 also provides that

No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, … shall be made under this provision.

Obviously, if “lawful acts of war” means “acts of war not prohibited by international law,” then this provision excludes derogation from article 2 in respect of deaths resulting from unlawful acts of aggression. Bill Schabas favors this view, though he candidly admits that relevant evidence is sparse (see here at 601-02). But suppose, instead, that “lawful acts of war” means “acts of war not prohibited by the law of armed conflict.” The result is the same: No derogation from Article 2, even in respect of deaths resulting from acts tolerated by the law of armed conflict, may be made under article 15 that is inconsistent with other obligations under international law. Either way, derogations in time of war must align with both the law of armed conflict and the law of interstate force.

As an aside, it is worth recalling that, even in case of self-defense, a State party may take measures derogating from its obligations under the Convention only “to the extent strictly required by the exigencies of the situation.” Accordingly, lethal acts of war tolerated by the law of armed conflict but not strictly required by the exigencies of the situation are prohibited by article 2 and no derogation is permitted under article 15.

Finally, the ECHR obligates States parties to “secure to everyone within their jurisdiction the rights and freedoms defined in … this Convention.” The extraterritorial application of the ECHR remains disputed, to put it mildly. The ECHR applies wherever a State exercises control over the person it kills or the territory on which it kills them. The ECHR applies wherever a State kills, thereby exercising control over the life of the person it kills, as persuasively argued by others. I have nothing to add to these arguments, except this: As we have seen, article 15 regulates derogation from article 2 in time of war, precluding measures prohibited by the law of armed conflict or by the law of interstate force. Assuming, as we must, that these provisions are effective rather than superfluous, article 2 itself must apply to the extraterritorial conduct of hostilities. This explains why each and every person killed by Turkish forces and agents is killed in violation of her human right to life.

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17 Responses

  1. Sancho

    Question: doesn’t this analysis impermissibly mix jus ad bellum with jus in bello?

    By the same logic, couldn’t you say that every death that results from Turkey’s actions in this conflict count as murder and are liable to criminal prosecution? And if not, then are you suggesting that there has been a violation of the right to life that cannot be prosecuted as such?

    I believe this type of argument was attempted at Nuremberg and was rejected. I don’t see why it would be different here, but of course I stand to be corrected.

    I’d be interested to hear your thoughts.

  2. David Goddard

    “The ECHR applies wherever a State kills, thereby exercising control over the life of the person it kills…”

    This is an attractive conclusion, for which persuasive arguments have certainly been made. I think it is also a likely end-point in the development of the law. However, it is a long way from being settled so far as the current state of the ECtHR’s jurisprudence is concerned, as illustrated by the UK Court of Appeal’s decision in Al-Saadoon and others v Secretary of State for Defence, which I discussed here: https://www.justsecurity.org/33296/uks-al-saadoon-case-stepping-extraterritorial-application-echr-arising-physical-force/

  3. Lukáš Mareček

    I agree with Mr. Sancho. This is the exact reason why the ius ad bellum and ius in bello separates. The violation of ius ad bellum does not imply the violation of ius in bello. And somehow this conclusion the author want to formulate. Secondly, within an armed conflict there are special rules to be applied. Off course from author’s point of view the human right to life is violated, but that is (unfortunately) a common issue – within an armed conflict the deprivation of life – even of civilians – is to some extend and under some conditions permissible. To apply human rights standards that are applicable during a peactime to a war conflict is not permissible and I consider it as a legal syncretism. We cannot apply human rights as if we were in peacetime, because we have a lex specialis, special set of rules, that are applied during a war. And under this law of armed conflicts even (and very commonly) deprivation of life is lawfull.

  4. Hi Sancho,

    The analysis shouldn’t mix jus ad bellum with jus in bello, since human rights law is a third body of law. HRL mixes with JAB, and HRL mixes with JIB, even if JAB and JIB do not mix with each other. I hope that makes sense.

    Presumably, every death that results from Turkey’s actions in this conflict counts as murder under Syrian national law. Whether Turkish leaders, forces, and agents may be domestically prosecuted for all of these murders, or only some of them, depends on the applicability of various immunities (personal, functional, combatant). If such immunities apply, then there have been violations of the right to life that cannot be criminally prosecuted as such. This is grotesque, but so it goes.

    In principle, the crime of aggression exists to fill this gap, providing for international criminal liability for killings that do not violate IHL, albeit limited to political and military leaders. It is time we put that principle into practice.

    Many thanks for your engagement,

    Adil

  5. Hi David,

    Thanks for your comment, with which I basically agree. In addition to your post, I highly recommend your article to those who haven’t read it:

    https://digital-commons.usnwc.edu/ils/vol91/iss1/11/

    All the best,

    Adil

  6. Hi Lukáš,

    I believe my reply to Sancho also addresses your concern, but please let me know if I’ve missed something.

    Be well,

    Adil

  7. Selman

    A quick question, what is the reason for stressing out the derogation clauses? Is Turkey’s derogation of ECHR still in force or is it to stress the importance of the right to life?

    The post, as Sancho pointed, neither makes a distinction of the jus ad bellum and jus in bello, nor explains the reason not to do so and in this sense hard to understand to the extent that it combines dubious arguments and legal framings, problematic application of IHL. Notably, it is equally difficult, to reconcile the claim that “The ECHR applies wherever a State exercises control over the person it kills or the territory on which it kills them” and the conclusions of the post “each and every person killed by Turkish forces and agents is killed in violation of her human right to life” ignore the necessary distinction of the loss of civilians (even that would be tolerated according to the military advantaged that would be gained by the attack) and combatant’s loss of the life complying with international humanitarian law (necessity, proportionality and etc).

  8. David Goddard

    Dear Adil – much obliged, thank you!

    Best,
    David

  9. Emanuele Sommario

    Dear Adil,

    Thanks for your interesting analysis. Yet I am not entirely sure your position finds much traction in the case law of the ECtHR. There have been many cases in which the Court could have conducted a preliminary assessment of the legality of the use of force by a State party against another State (Cyprus v. Turkey, for instance, and the many individual applications connected to that same situation; but also cases concerning the early stages of the UK presence in Iraq in 2003). Yet the Court always refrained from doing so and choose instead to approach these cases in a more “conventional” manner (pardon the pun).

    In fact, some of the Court’s dicta seem to militate against the idea that jus ad bellum considerations could influence the outcome of a case. In Loizidu v Turkey, the Court argued that “the responsibility of a Contracting Party could also arise when as a consequence of military action – WHETHER LAWFUL OR UNLAWFUL – it exercises effective control of an area outside its national territory” (emphasis added), and then went on to consider the case in light of its right-to-property jurisprudence. This wording seems to suggest that the legality of the Turkish invasion had no bearing on the ECtHR’s decision.

    In addition, I am afraid that branding the conduct of an aggressor State as ipso facto illegal under human rights law might discourage that State from attempting to conduct its military campaign more in line with its human rights obligations.

    Best,

    Emanuele

  10. Lukáš Mareček

    Dear Adil,

    Thank you for your response. However as I noted civil loses during a war conflict are permissible. If a soldier kills a civilian during an armed (war) operation, he is not liable in general. The JIB allows him to kill. Off course this is not absolute and has several limits. If these limits are exceeded a crime under international law is committed. The Int. Crim. Law is protecting the core values of int. human rigts law (by crimes against humanity namely) and of JIB (by war crimes namely).
    To your argument of Turkish criminal law, the prosecution of combatants is prohibited by international law (Geneva conventions) for mere participation in hostilities. I believe that if their actions within an armed conflict are in fact permitted (I can even say that deprivation of life is somehow expected within an armed conflict, also with civilian casualties – that is why IHL deals with this issue explicitly) by JIB, then it cannot be against int. law. The human right to life is not absolute and without limits or exceptions. If the state (as a belligerent) follows the JIB and also its soldiers are following the JIB, then no liability at all could arise in my view. Secondly, as I stated, I believe that IHL is an general law, and JIB is a special law that protects (in effect) HR within an armed conflict and JIB itself (as I noted) is not considering deprivation of life per se as a violation of rules applied within an armed conflict. The fact that JAB was violated is not changing aforesaid.
    However you concider, if I understood corectly, that prohibition of the criminal prosecution of soldier for their lawfull actions within an armed conflict is not a case of substantial exclusion of liability, but rather a procedural immunity. This is, I assume, the point where we disagree.

  11. Gabor Rona

    Reply to Lukas:

    I agree with Adil. I also agree with your observation that a combatant on the side of the aggressor State doesn’t violate IHL or IHRL or UN Charter 2(4) by killing enemy combatants and (sometimes) civilians. But that doesn’t mean there’s no violation of IHRL. The architects of the aggressive war who empower and order the combatant to kill are the violators of the IHRL right to life, although the killing may comply with IHL.

  12. MARTIN LEDERMAN

    “Deprivation of life is, as a rule, arbitrary if it is inconsistent with international law.” Really? That’s certainly counterintuitive. Nor do I think it likely that any, let alone all, parties to the ICCPR thought that 2(4) violations per se resulted in numerous Art. 6 violations.

    In any event, why does this matter? If and when it’s settled that an incursion breached 2(4), what practical difference does it make whether it also–by virtue of that breach–violated ICCPR art. 6?

  13. Hi Gabor,

    I agree. Strictly speaking, it is the State that violates the right to life, not any individual. But, as you suggest, leaders direct and control the State, so in that sense it is “up to them” whether or not the State violates human rights through an act of aggression.

    Hope you’re well,

    Adil

  14. Hi Lukáš,

    Indeed, we disagree about whether combatant immunity is substantive or procedural. More importantly, you think IHL authorizes *States* to kill within IHL’s constraints, and therefore displaces or modifies the ordinary application of human rights law. Is that right?

    Many thanks,

    Adil

  15. Hi Emanuele,

    I defer to you regarding the Court’s case law. As with religious freedom, there may be a gap between what the ECHR provides–what rights people have, and what obligations States bear–and what the Court decides.

    Your second concern is, more or less, shared by Pavle in his post. I’ve started to address it there. Please join that conversation if you’re so inclined.

    Best wishes,

    Adil

  16. Lukáš Mareček

    Dear Adil,

    Yes, IHL authorizes states to kill within IHL’s constraints (civilian loses are to some extend permissible under IHL).
    If we say, that the HR was violated, then is a state really authorized to kill? (And we already know, that state is authorized).
    If a branch of law allows a state to kill a civilian, can we say that the right to life was violated?
    E.g. the Convention on Convention for the Protection of Human Rights.. (1953) in its art. 2 allows a state to kill in case of law enforcement. We can see, that a state could be authorized to kill and we cannot say, that the deprivation of life was violation of HR to life.
    The difference between kill in law enforcement action and in war conflict is in that the second case in not explicitly mentioned in art. 2 of this Convention.
    The deprivation of human life should not be arbitrarily.
    The killing of civilians in war civilians is not wanted, it is not a arbitrary kill, the hostilities in war has to be aimed against military targets, arbitrary killing of civilians indeed is violation of HR, or to be more precise protected by IHL (as a lex specialis), state is therefore for such killing liable and individual could be punishable under Int. Crim. Law.
    To answer your question, yes I think that the IHL has either effects on int. hum. rights law application (creating exceptions, just like as in case of law enforcement) or (as a lex specialis) during an armed conflict the IHRL is not applicable, because a special set of rules, that has similar aim, is applied – the IHL.

  17. Hi Lukáš,

    As I hope you’ll agree, the question of whether IHL authorizes what it does not prohibit is the most fundamental debate in the field. I doubt we can settle it here. For now, I’ll just note that the text of Article 15 suggests a very different relationship between human rights law, IHL, and the law of interstate force.

    All the best,

    Adil

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