Extraterritorial Investigations in Hanan v. Germany; Extraterritorial Assassinations in New Interstate Claim Filed by Ukraine against Russia

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In this post I will discuss two recent developments on the extraterritoriality of human rights front – the judgment of the Grand Chamber of the European Court of Human Rights in Hanan v. Germany, no. 4871/16, on the compliance with Article 2 ECHR of the investigation by German authorities into the Kunduz incident in Afghanistan, and a new interstate claim filed this week with the European Court by Ukraine against Russia, on an alleged administrative practice by Russian authorities of assassinating perceived opponents abroad. (I also still have to write up a proper post on the Human Rights Committee’s decision re the drowning migrants in the Mediterranean – the extraterritoriality extravaganza continues next week…).

First, on Hanan. The bottom line is that the Court, by 14 votes to 3, found that the procedural obligation to investigate applied to the conduct of German forces that were part of the ISAF contingent in Afghanistan, i.e. that the investigation was within Germany’s Article 1 ECHR jurisdiction, and unanimously, that the investigation conducted by Germany was Article 2-compliant. For more background on the case (in which our very own Dapo was counsel for the applicant), see this previous post by Dominik Steiger. The key point to bear in mind is that the case concerned only the procedural limb of Article 2, but not the substantive one, i.e. it did not directly raise the question of whether the Kunduz air strike violated the right to life. In that Hanan is very similar to Al-Skeini.

On the applicability point, the Court applied its ‘special features’ approach, developed in Guzelyurtlu, and held that:

  • The mere fact of a state initiating an investigation, as Germany here did, does not, on its own, trigger the Article 2 positive obligation to investigate (para. 135). In other words, the initiation of an investigation into an extraterritorial situation does not necessarily entail that the investigation has to be Convention-compliant. The Court notably says here that it’s making this holding ‘without calling into question’ the principles set out in Guzelyurtlu, when that’s exactly what it is doing. (In that regard, only 3 of the 17 judges who sat on the Hanan bench also sat in the Guzelyurtlu Grand Chamber, even though the two judgments are only two years apart).
  • However, because Germany had a duty to investigate grave breaches of IHL, because Germany had retained exclusive criminal law jurisdiction over its own deployed personnel, and because Afghanistan was not capable of conducting an effective investigation of the incident, there were ‘special features’ that triggered the positive duty to investigate under Article 2.

What are we to make of this? The ‘special features’ that the Court relies on will actually exist in the vast majority of situations involving the extraterritorial use of force. The bottom line is therefore much as in the recent Georgia v. Russia no. 2 judgment – the procedural limb of Article 2 will apply even if the substantive one does not, although the Court here avoids the issue of the applicability of the latter (para. 143). European states using force abroad will thus almost inevitably have to use Article 2-compliant investigations, at least when it comes to potential serious violations of IHL that also entail a violation of the right to life. This is a big deal – sometimes a procedural obligation can be just as impactful as a substantive one, even if it comes across as more modest or politically palatable.

It of course make little sense to have a procedural obligation completely detached from any substantive violation, when the procedural obligation was invented in McCann precisely to make the substantive obligations more effective in practice. The proper remedy for this incongruence is, however, not to limit the procedural duty, but to make the substantive obligations apply broadly as well.

But then we come to how the Court applied the procedural obligation on the facts of Hanan. To make a long story short, it employed a very deferential standard of review, and despite the many problems with how the investigation was conducted its conclusion was that in extraordinary circumstances states had to have a certain degree of latitude and that Germany ultimately did conduct an effective (if imperfect) investigation.

In this regard Hanan is really a sequel to Jaloud. There the Court also noted that the procedural obligation had to be applied more flexibly in the context of an extraterritorial armed conflict, but was more demanding on the merits. The Jaloud Court was significantly split, however, on how the review on the facts should come out – 7 of the 17 judges would have wanted an even more flexible approach on the facts. And that’s precisely what we have in Hanan,  and with a unanimous Grand Chamber at that (note that none of the judges who sat in Jaloud also sat in Hanan).

The unanimity of the Hanan Court probably does not reflect the comparative merits of the two cases, but the changing constellation of the bench, how the two cases were argued, and the overarching political context. Broadly speaking, on the question of principle the Court is right – the procedural obligation should indeed be applied flexibly. I am not sure whether the Court is right (let alone unanimously so) in applying this flexible approach to the facts, but this is a point on which I will reserve judgement.

So, bottom line – military or government lawyers working for (or partnering with) an ECHR member state, take note – the applicability of the Article 2 procedural obligation would be very hard to avoid, but it can be applied with significant flexibility on the merits. This is, in my view, exactly what the position should be (although I would dispense with the ‘special features’ theatre altogether). Note also that the Court has definitely opened the doors to litigation of armed conflict situations on procedural grounds, even if in Georgia v. Russia no. 2 it wanted to close them on substantive grounds.

This brings us to the second development – the genuinely ingenious new interstate application brought by Ukraine on extraterritorial assassinations. This is precisely the type of case that exposes fully the legal and moral fallacy of the restrictive Bankovic/Georgia v. Russia no. 2 approach. We are talking here about the assassinations of dissidents outside any armed conflict, outside any ‘context of chaos’ – think Litvinenko or the Skripals or Chechen assassins in Berlin, or (intraterritorially) Navalny’s poisoning-by-nerve-agent-on-underwear. The question is simply this: does the ECHR prohibit states parties from sending assassins onto the territories of the other states parties? Yes or no? And if the answer is yes, as it must be, how then can the Court justify saying that the Convention does not apply at all when things get a wee bit more ‘chaotic’? If killing one person is a violation of the right to life, how could killing a hundred or a thousand not be? And so forth.

What’s so ingenious about this is that Ukraine is basically putting a mirror in front of all other ECHR states parties on whose territories such assassinations have happened, effectively daring them to join this claim or at least revisit their prior positions. Recall how the UK has refrained from discussing the Salisbury novichok attack in human rights terms precisely in order to avoid acknowledging that human rights would also apply to killings in wartime. Recall also how the UK government has recently expressly refused to intervene as a third party in the individual case brought against Russia by Alexander Litvinenko’s widow precisely on these grounds. Recall, finally, how at least one state, the Netherlands, which had previously resisted the extraterritorial applicability of the Convention when it was in the position of the wrongdoing state, has now felt compelled to do an about turn and embrace extraterritoriality to protect the victims, many of whom were its nationals, aboard the MH17 against Russia.

This new interstate application, in sum, is just the kind of case in which Bankovic and its progeny may be buried for good, by some future constellation of the Grand Chamber. And again, if the peacetime assassinations of individuals are covered by the Convention, then so must be the killings of thousands in armed conflict (well, one would certainly hope). So let’s all keep a watchful eye on this one, shall we?

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Wg Cdr Monty Reid says

February 27, 2021

Dear Professor Milanovic,

Thanks very much for the post. I completely agree about there being nothing particularly special about the features identified in Hanan. I also think a more flexible approach to the ECHR obligations will make states less inclined to argue the toss on jurisdiction. I sense that most states want to be able say that they abide by ECHR - particularly given the rise of other authoritarian states - but have been scared by the breadth of the duties (hence they have argued both jurisdiction and substantive obligations in the alternative in litigation).

1) I'd be very interested in your thoughts about the international and operational context of the Hanan case. A German colonel appears to have called in air support from an international coalition partner. Those allied pilots operate under national permissions. They also have IHL duties, including to cancel the operation if, in light of the additional information available to them, it would have offended IHL. In other words, the German colonel could not have "ordered" the strike in the strict sense but is part of a larger joint enterprise. Moreover, the coalition partner is not an ECHR signatory state. How would non-ECHR partners (operating in non-ECHR countries) be affected by any such ECHR-compliant investigative obligation or must the investigation only pertain to the discrete German element (Monetary Gold etc.)? Aren't the processes in place by the US coalition partner carrying out any strike still highly relevant to the propriety of the German action for the purposes of investigating the latter?

2) Does the detachable article 2 investigative duty not extend to articulating what the substantive test is (c.f. identifying whether the substantive obligation is actually breached)? Surely that test informs the investigative obligation? In other words, must the investigation be set up to test only whether the operation was a violation of IHL or something more onerous (i.e. in light of ECHR bells and whistles)?

3) Regarding the sending of assassins overseas as necessarily being within the jurisdiction ("The question is simply this: does the ECHR prohibit states parties from sending assassins onto the territories of the other states parties? Yes or no? And if the answer is yes, as it must be.."), could you please unpack that statement for me? Is it the Soering style territorial action of state A sending the assassin from state A to state B (or of ordering him in the event s/he is already overseas), or the fact that state A and B are both convention states (espace juridique), or the fact that convention states must not deprive life unlawfully wherever it may be? For right or wrong, the latter simply isn't the ECHR position. So we are back to the whole state agent construct for extraterritorial action. But a hostile state assassinating overseas is not an obvious exercise of "state agent authority and control" in the ECHR sense any more than it would be if a criminal gang sent the assassin. State A is not the state in state B and it certainly isn't acting as if it were (c.f. detention pursuant to a lawful process). So, do you have any ideas on how it could be brought within jurisdiction other than by saying its within the espace juridique because both states are ECHR signatories or by some Soering analogy? Could we see the emergence of certain heinous "acts of state" as falling within jurisdiction? If such acts, ordered from on high, are very much designed to challenge the legitimacy or core functions of the victim state (by instrumentalising individual human rights victims - see also disinformation operations) could they then fall within ECHR jurisdiction under the assumption of public powers/authority elements?

Wg Cdr Monty Reid

DH says

February 27, 2021

Dear Marko,
Thank you very much for this insightful and and very clear analysis.
I was wondering if you maybe know why is that the applicant did not raise an allegedly infringement of the substantial limb of article 2? And also, if I may, bearing in mind its decision in the Georgia v. Russia, would it possibly for the Grand Chamber to find that Germany did violate the substantial limb of article 2?

Many thanks again,

Marko Milanovic says

February 28, 2021

Dear Monty,

Many thanks for this comment.

Re 1 - there's several different but related issues here. First, non-ECHR partner states operating in a coalition will be aware of the constraints their ECHR partners are operating under, and will therefore have to make some adjustments to their own procedures if this would facilitate ECHR state participation in a coalition. Ripple effects basically - the Australians or the Americans can't ignore the investigative duties of the French or the Brits etc. Second, there are issues of attribution - it's perfectly possible for an air strike such as the Kunduz one to be attributable to more than one partner state, because of the arrangements they made amongst themselves that effectively allow instructions from one state's armed forces to be given to those of another state.

Re 2 - at least when it comes to investigations into uses of force by state agents, as you say compliance with the substantive standard is the object of the assessment of the investigation. The substantive standard perhaps here being modified by IHL, to the extent appropriate - but IHRL in wartime doesn't necessarily equal IHL. Note though that in other context the procedural duty to investigate is in fact detached from any substantive standard - e.g. in the context of investigating purely private violence, or the cooperation obligation such as the one in Guzelyurtlu.

Re 3 the result that an extraterritorial assassination is covered by the ECHR (or some other human rights treaty) can be reached in two ways. First, that negative duties of restraint are entirely unbound territorially (my preferred position). Second, which amounts to the same thing, that killing a person is an exercise of power, authority, control over them in exactly the same way as first detaining the person and then killing them. See my Khashoggi HRLR piece and Mr Justice Leggatt in Al-Saadoon for a more extensive discussion.

Marko Milanovic says

February 28, 2021

Dear DH,

Many thanks for this. I imagine (but don't know) that the Hanan applicants didn't raise the substantive limb for the same reason as those in Al-Skeini = they were aware of Bankovic and thought it was unlikely that it would be overruled by the Court, and thought (rightly) that the procedural duty to investigate is more palatable to the Court extraterritorially than the substantive duty to refrain from using force. In other words they thought they could achieve as much by litigating the case on procedural grounds as on substantive ground, while if they pursued the latter it would have hurt their chances.

As for your Georgia v. Russia no. 2 point the answer is probably no, but that decision is so messy that nobody knows really. All the 'context of chaos' stuff there would apply to Afghanistan; on the other hand GvR was confined solely to the 'active hostilities' phase of an international armed conflict, but Afghanistan is a NIAC. So as a purely formal matter GvR doesn't govern a situation such as Kunduz.