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ECtHR:Khamzayev and Others v. Russia:The Application of Human Rights Law in Armed Conflict Situations

In Uncategorized on May 5, 2011 at 10:22 pm

The ECtHR delivered two judgments (Kerimova and Others v. Russia, Khamzayev and Others v. Russia) this  week concerning Russian military air strikes on a town in Chechnya purportedly occupied by Chechen rebels.

Here are the principle facts according to the press release:

On 2 October 1999, Russian military planes attacked Urus-Martan, where the Russian
authorities had previously launched a counter-terrorism operation. One of the bombs hit
the block of flats in which Ms Kerimova lived with her family, killing her brother and
husband and wounding her and her three minor children. On 19 October 1999, the town
again came under aerial attack by Russian federal forces. The bombing resulted in the
deaths of six people and injuries to 16 people, including three of the applicants, and in
the destruction or damage of 40 houses, including those inhabited by 18 of the applicants in the case Kerimova and Others and the one inhabited by Ms Tovgayeva inthe second case. In December 1999, the town was taken over by Russian federal troops.

Unsuprisingly the Court  applied the same approach it did in the Turkish (Ergi v Turkey and Ozkan v Turkey) and Russian-Chechen cases (Isayeva I and Isayeva II).  Unlike the Inter-American Commission (which applied IHL directly) or the Inter-American Court (which allowed the use of IHL as “interpretive guidance” for applying IHRL), the ECtHR tends not to make explicit reference to IHL in its judgments when a case involves an armed conflict situation. Though similar terms, phrases or rules may be seemingly borrowed from IHL–the standards the Court applies can be significantly different.

In the Khamzayev the Court first describes the “right to life” standard applicable in the case:

The Court reiterates that Article 2, which safeguards the right to life and sets out the circumstances where deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, from which in peacetime no derogation is permitted under Article 15. The situations where deprivation of life may be justified are exhaustive and must be narrowly interpreted. The use of force which may result in the deprivation of life must be no more than “absolutely necessary” for the achievement of one of the purposes set out in Article 2 § 2 (a), (b) and (c). This term indicates that a stricter and more compelling test of necessity must be employed than that normally applicable when determining whether State action is “necessary in a democratic society” under paragraphs 2 of Articles 8 to 11 of the Convention. Consequently, the force used must be strictly proportionate to the achievement of the permitted aims. In the light of the importance of the protection afforded by Article 2, the Court must subject deprivations of life to the most careful scrutiny, particularly where deliberate lethal force is used, taking into consideration not only the actions of State agents who actually administer the force but also all the surrounding circumstances including such matters as the planning and control of the actions under examination.

And in applying an essentially “law enforcement standard” to the facts  the Court holds:

Against this background and in the light of the principles stated in paragraph 178 above, the Court may be prepared to accept that the Russian authorities had no choice other than to carry out aerial strikes in order to be able to take over Urus-Martan, and that their actions were in pursuit of the aim set out in paragraph 2 (a) of Article 2 of the Convention, as alleged by the Government. It is, however, not convinced, having regard to the materials at its disposal, that the necessary degree of care was exercised in preparing the operation of 19 October 1999 in such a way as to avoid or minimise, to the greatest extent possible, the risk of a loss of life, both for the persons at whom the measures were directed and for civilians.

 In contrast to Article 57(2)  (Precautions in Attack) of Additional Protocol I (also considered as customary IHL during NIAC), the standard applied in this case is far more rigorous and exacting.  Not only must , “to the greatest extent possible”, the “loss of life” be avoided or minimized in respect to civilians but also in respect to combatants as well. In IHL the use of lethal force against a combatant is lawful– and no proportionality evaluation is applied in respect of the target itself. As Professor Lubell explains, “under human rights law and the rules of law enforcement, when a State agent is using force against an individual, the proportionality principle measures that force in an assessment that includes the effect on the individual himself, Leading to a need to use the smallest force necessary and restricting the use of lethal force.” In contrast, under IHL, “if the individual is for instance a combatant who can be lawfully targeted, then the proportionality principle focuses on the effect upon surrounding people and objects, rather than upon the targeted individual, against whom it might be lawful to use lethal force as a first recourse.” Also, the proportionality test applied by IHL is considered far more flexible, allowing Military leaders to balance the importance of a military objective against the possible incidental death of civilians. A violation becomes far more likely if the loss of civilian lives is excessive in relation to a particular military objective.

Update: ASIL’s Int Law in Brief provides good case summaries for the two cases

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