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

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.