The judgment of the Grand Chamber of the European Court of Human Rights in Ukraine and the Netherlands v Russia addresses a number of significant questions in international law (see initial analysis by Marko Milanovic here). In this post, we focus on one important issue on which the Court did not give a clear-cut answer: the relevance of compliance with international humanitarian law (IHL) to the interpretation and application of the right to life under Article 2 ECHR. This matter was addressed by the applicant governments as well as the State and other intervenors, and though the Court was clear that IHL is to be taken into account in determining the scope of the human rights guarantees under the Convention, it did not explain precisely how IHL is to be applied in the context of the right to life as protected by Article 2. After setting out (1) the Court’s general approach to interpreting the Convention, we explain (2) how the IHL-IHRL interaction question was addressed in the decision. We then (3) set out how the matter should be resolved if it arises in a future complaint, before flagging by way of conclusion some other issues left unresolved, including how the jus ad bellum might bear on the interpretation and application of the Convention.
1. The Court’s General Approach
Some previous cases before the Court concerning the right to life in situations of armed conflict had focussed on whether the State was in breach of the duty to investigate killings in violation of Article 2 (Al Skeini v UK (2011); Jaloud v Netherlands (2014); Hanan v Germany (2021)). However, in the present case, a primary question was on the substantive limb of the right, and thus on whether killings by Russia were in breach of its duty not to unlawfully take life under Article 2. As these killings occurred during an armed conflict, they are also regulated by IHL, which puts squarely in question the relationship between the Convention and IHL.
To recall, Article 2 provides:
- Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
- Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
- in defence of any person from unlawful violence;
- in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
- in action lawfully taken for the purpose of quelling a riot or insurrection.
In this case, the Court set out a general approach to the application of Article 2 during armed conflict which may be summarized as follows: (i) the Convention applies in situations of armed conflict; (ii) Convention guarantees are not displaced by IHL; but (iii) the Convention, in accordance with Article 31(3)(c) VCLT, ‘should so far as possible be interpreted in harmony with other rules of international law of which it forms part’ (paras 427-428; and see previously e.g. Varnava and Others v Turkey (2009), para 185).
The Court in setting out its general approach clearly rejects a concept of lex specialis which understands it either as (i) a tool for regime displacement or (ii) as a principle which resolves conflicts between inconsistent specific rules by imposing a hierarchy in the relationship between those rules. As Milanovic notes, the Court understands lex specialis as an interpretive principle. Its approach to lex specialis is not to regard it as an arbiter of conflict but rather as a tool for harmonious interpretation (indeed, the Court speaks of a ‘duty’ of harmonious interpretation (para 1034)). Or to put it differently, lex specialis operates as a principle of ‘co-ordinated interpretation’. This is the idea that a concept or rule in one area of law can be used to interpret or give meaning to a concept or rule in another area of law. This approach is broadly consistent with the ICJ’s recent approach—describing lex specialis as a ‘maxim of interpretation’ (see ICJ Climate Change AO, para 166), and is to be supported as a matter of principle.
However, the Grand Chamber’s crucial phrase that the Convention ‘should so far as possible be interpreted in harmony with other rules of international law’ throws up two further questions: what are the boundaries of ‘so far as possible’ and which ‘rules of international law’ are relevant to the interpretive exercise, other than IHL. The former we address below; the latter we simply flag in the conclusion.
2. The Relevance of IHL-Compliance to the Right to Life in Article 2 ECHR
The key question thus concerns the relevance of compliance with IHL—particularly the rules in the conduct of hostilities—to the application of Article 2 ECHR. As set out in the intervention of the Human Rights Law Centre at the University of Nottingham, Article 2 ordinarily (i) requires that the use of lethal force be absolutely necessary in the specific circumstances, in contrast to IHL; (ii) does not admit status-based targeting, in contrast to IHL; and (iii) uses an approach to proportionality different from that arising in IHL (see para 413 of the judgment).
In relation to the downing of MH17, the Dutch government argued both that (i) the attack was not carried out for any of the three lawful purposes in Article 2(2) ECHR and that (ii) the attack failed to comply with the rules of distinction and precautions in IHL (paras 439-445). In response, the Court noted that it had:
‘acknowledged the possibility for a conflict to arise between Article 2 and the provisions of international humanitarian law in circumstances where force is used in the context of armed conflict… As regards the present complaint, such a conflict would potentially arise if the downing of flight MH17 were compatible with international humanitarian law’ (para 453).
This approach set up the Court to first examine the issue of IHL compliance, which allowed it to decide the matter without getting into the apparent conflict problem. On the substance, and aided by Russia’s refusal to furnish any operational information, the Court determined that the launching of the missile was in breach of the IHL principles of distinction and precautions in attack. This violation of IHL entailed (too) a violation of the substantive limb of Article 2 ECHR (para 466).
The Court was able to take a similar approach in relation to certain attacks on civilians (para 747) and killings in occupied Ukrainian territory (paras 1034-1045). On the latter, after noting the possibility of an ‘apparent conflict’ between the use of lethal force in accordance with IHL and Article 2’s set of exceptions, the Court pointed to credible evidence of killings of civilians and soldiers hors de combat (paras 1036-1043). It found that ‘[t]here is no evidence … to suggest that the use of force might have been justified under international humanitarian law.’ (para 1042). This set up the conclusion finding Russia ‘responsible for an administrative practice in violation of Article 2 of the Convention of extrajudicial killing of civilians and Ukrainian military personnel hors de combat in occupied territory in Ukraine in the period between 11 May 2014 and 16 September 2022’ (para 1045).
On this basis, the Court was able to determine these aspects of the application while only dealing with the more straightforward side of the IHL-IHRL relationship: killings in breach of IHL will constitute a breach of IHRL (once the question of jurisdiction is satisfied). This is entirely orthodox (though see Waschefort, and for wider discussion Yip), and consistent with the approach set out in para 63 of the Human Rights Committee’s General Comment 36 in relation to the ICCPR:
‘[P]ractices inconsistent with international humanitarian law, entailing a risk to the lives of civilians and other persons protected by international humanitarian law, including the targeting of civilians, civilian objects and objects indispensable to the survival of the civilian population, indiscriminate attacks, failure to apply the principles of precaution and proportionality, and the use of human shields would also violate article 6 of the Covenant.’
The harder question is the inverse one: whether (full) IHL-compliance in the taking of life will mean compliance with Article 2 ECHR? This is the problem the Court was able to avoid—aided by its findings of non-compliance with IHL by Russia and the Court’s willingness to draw adverse inferences from Russia’s non-participation. In the judgment, the Court provides hints in conflicting directions as to how it is likely to approach this issue were it to arise in a future case. On one hand, the Court cites approvingly (para 427) its decision in Hassan, which (essentially) read into what appears to be a closed list of exceptions in Article 5 ECHR an additional ground of IHL-compliant detentions (for wider reflections, see Holcroft-Emmess; Hill-Cawthorne; Crema). In the present case, a number of States had supported an approach of this kind (see e.g. the 26 State interveners, para 378; the UK, para 398). On the other hand, the Court both refers to the derogation clause in Article 15 (para 425) and is explicit that there are limits to harmonious interpretation: ‘There may be situations where a harmonious interpretation of provisions of the Convention with relevant provisions of international humanitarian law is not possible in the absence of a derogation under Article 15 of the Convention… since the provisions are in conflict with one another’ (para 430). In the case, however, it did not have to address where these limits lie.
3. Evaluation
The question of whether IHL-compliant killings may breach Article 2 thus remains open, and in a future case the Court might be pulled in contrasting directions. In one direction, the common pleading of the 26 intervening States makes clear (as summarized in the judgment, on which see Botticelli and Risini) the preference of at least a substantial group of the Convention’s State parties for an approach along the lines of Hassan (para 378). Such an approach might entail reading into Article 2 ECHR an exception for IHL compliant-killings during armed conflict, as Hassan did for IHL-compliant detentions. Moreover, it’s hard to see that the logic of Hassan in relation to Article 5 is not applicable in relation to Article 2 (for a wider discussion, see Al-Waheed in the UK Supreme Court, paras 40-68 and Park (p. 112)). On this approach, there would be no need for a State party to derogate under Article 15; harmonious interpretation at the level of the scope of the right itself renders IHL-compliance relevant at that stage.
Notwithstanding this preference, and pulling in the opposite direction, such an approach remains difficult to justify in formal terms. As a starting point, as the Court itself makes clear, there are limits to the principle of harmonious interpretation, and to this it might be added that this principle—and its embodiment in Article 31(3)(c) VCLT—is but one aspect of a wider set of interpretative principles which are to be applied as a whole. In relation to Article 2 ECHR specifically, the problem is that the preference expressed by the intervening States is difficult to justify under Article 31(1) VCLT—the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
First, the language of Article 2 itself is not open-textured (as is the case with Article 6 ICCPR which provides that no one shall be ‘arbitrarily’ deprived of life), so as to straightforwardly admit the suggested additional permissible basis for the use of lethal force. Moreover, it is evident on the face of the provision that the exceptions operate as a closed list, something confirmed by the Court in previous cases (see e.g. (Esmukhambetov and Others v. Russia, para 138; Machalikashvili and Others v. Georgia, para 98).
Second, Article 15 ECHR—the derogation clause—is context (as defined in Article 31(2) VCLT) for the interpretation of Article 2. Article 15(2) explicitly contemplates derogations from the right to life in relation to ‘deaths resulting from lawful acts of war’, which indicates that deaths resulting from lawful acts of war will (absent derogation) violate Article 2.
Third, and relatedly, to hold that killings that comply with IHL are ipso facto compliant with Article 2 will render this aspect of Article 15(2) redundant. Such an interpretation ‘would be contrary to one of the fundamental principles of interpretation of treaties, consistently upheld by international jurisprudence, namely that of effectiveness’ (Territorial Dispute (Libyan Arab Jamahiriya/Chad), (1994) para 51). In accordance with this principle, ‘an interpretation is not admissible which would make a provision meaningless, or ineffective’ (Oppenheim’s International Law Vol. 1 (9th ed.) (1992), p. 1280). In the context of the ECHR and persistent criticisms by some States of the Court’s interpretation of the Convention, it is paradoxical for State parties to call for the Court to adopt an interpretation that would clearly rewrite or render redundant certain of its provisions.
And fourth, as Holcroft-Emmess argues, the object and purpose of the Convention may be better served by directing claims in relation to potentially IHL-compliant killing through the formal procedures of derogation under Article 15. Here, the publicity requirements of the derogation clause may aid in facilitating scrutiny by other States and civil society.
For these reasons, and in the absence of evidence that the first approach reflects the agreement of all the parties to the Convention (see ILC (2018); Tladi), the better view is that Article 2 ECHR ought not to be interpreted so as to directly accommodate the permissibility of IHL-compliant killings. If this is right, in practical terms (and again leaving aside the issue of jurisdiction), from a State party’s perspective derogation will be required. Of course, other doctrinal questions would arise on this approach, not least the question of extraterritorial derogations, which, in our view, must surely be permissible, whether a formal notification of derogation is required, and the consequences of a failure to notify.
Conclusion
To recall, the Court’s central interpretive approach is that the Convention ‘should so far as possible be interpreted in harmony with other rules of international law of which it forms part’. In this post, we have focused of the potential limits of ‘so far as possible’, and IHL as the source of other relevant rules of international law. Whichever route is taken—through Article 2 applying an analogous approach to Hassan or demanding reliance on derogation—there would remain the question of whether IHL-compliance necessarily means compliance with the Convention, or whether certain other requirements drawn from human rights law might nonetheless apply. Here, we note the proposition of the Human Rights Committee that ‘Use of lethal force consistent with international humanitarian law … is, in general, not arbitrary’ (para 64, our emphasis). The possible exception(s) implicit in the clause ‘in general’ and whether the ECtHR should adopt an analogous approach are questions for another piece.
In addition, one other open question is whether (and if so, how) the jus ad bellum might bear on the interpretation and application of the Convention. In para 70 of its General Comment 36, the Human Rights Committee proposed that ‘States parties engaged in acts of aggression as defined in international law, resulting in deprivation of life, violate ipso facto article 6 of the Covenant’, a proposition which has provoked scholarly discussion, and is at issue in at least one ongoing application to the HRC. The ECtHR explicitly excluded this issue from its consideration on the basis that ‘[n]either applicant Government invited the Court to take account of jus ad bellum when determining the compliance of the respondent State with substantive Convention rights’ (para 431). That is to say, the relevance of the jus ad bellum—whether to the right to life, to the permissibility of derogation, or to other rights, including the right to property under Protocol I—remains to be determined.
