magnify
Home Articles posted by Pavle Kilibarda

Turkey, Aggression, and the Right to Life Under the ECHR: A Reaction to Professor Haque’s Post

Published on October 22, 2019        Author: 

Professor Haque yesterday published a thought-provoking piece on this blog arguing that the Turkish incursion against Kurdish forces in Syria, beyond being a violation of the UN Charter, also amounts to a violation of the right to life under the ECHR. His reasoning, which is sound, is based on the Human Rights Committee’s rather controversial new General Comment 36 on the right to life under the ICCPR, where the Committee concludes that States Parties to the Covenant engaging in acts of aggression resulting in deaths violate ipso facto Article 6 (for its part, the HCRttee itself draws on the opinion of academics such as William Schabas who originally developed the argument).

I do not disagree with Professor Haque’s logic, which is, like that of the HRCttee, internally sound. However, I disagree with the exceptionalism which often seems to characterize attempts to include jus ad bellum in the lawfulness test for arbitrary deprivation of life– and, respectfully, Professor Haque’s piece suffers from that same exceptionalism.

The classical view of permissible violence in armed conflicts, based on the long-standing distinction between jus in bello and jus ad bellum, is actually a coherent and credible legal position – one that has the additional advantage of being the mainstream interpretation. It is entirely plausible to maintain that the UN Charter does not mix very well with human rights or humanitarian law instruments. The whole structure of IHL has been built on the premise of its separation from the lawfulness of resorting to force, and the ICRC itself continues to strongly defend this position.

But the emerging understanding of the right to life in light of jus ad bellum is also a coherent, well-structured and convincing interpretation of treaty law, from the point of view of human rights law taken in relative isolation. The fact that this interpretation has also been authoritatively endorsed by a treaty body gives it an aura of credibility that few “progressive” interpretations raised in doctrine can usually aspire to. But the mere fact that a particular interpretation of treaty law makes sense does not mean that it should actually be made.

Read the rest of this entry…

 

The ECtHR’s Ilias and Ahmed v. Hungary and Why It Matters

Published on March 20, 2017        Author: 

The European Court of Human Rights delivered a judgment last Tuesday in the case of Ilias and Ahmed v. Hungary, finding multiple violations of the European Convention as a result of Hungary’s border procedures and its treatment of asylum-seekers. The applicants, nationals of Bangladesh, spent over three weeks in the transit zone before being sent back to Serbia, considered a “safe third country” under a 2015 Governmental Decree. Both applicants were part of the first wave of asylum-seekers attempting to access Hungary after the entry into force of controversial new legislation in September 2015, which effectively led to the Western Balkans route turning towards Croatia over the course of the next few days.

In what constitutes its first verdict on Hungary’s latest practice – which involves deprivation of liberty and almost universal forced return to Serbia on the basis of the safe third country concept – the Court found violations of Arts 3, 5 and 13 in conjunction with Art. 3 of the Convention, namely because the applicants had been subjected to de facto deprivation of liberty with no adequate safeguards for over three weeks, didn’t have access to an effective remedy with respect to the conditions of their detention and ended up being sent back to Serbia without ever having the possibility of ill-treatment genuinely considered either by the asylum authority or the Szeged Administrative Court in their attempted appeals against the former’s ruling. In finding violations, the Court generally agreed with more-or-less all of the applicants’ arguments, however it did not agree with them that the conditions of their detention in the border zone reached the level of severity necessary for there to be a violation of Art. 3 in that respect.

The Implications Read the rest of this entry…