4.1
The State may be
This latitude must be circumscribed: emergency powers of all kind lend themselves to abuse if they are not subordinated to democratic or judicial review. In the words of the European Commission for Democracy through Law (âVenice Commissionâ):
The security of the State and of its democratic institutions, and the safety of its officials and population, are vital public and private interests that deserve protection and may lead to a temporary derogation from certain human rights and to an extraordinary division of powers. However, emergency powers have been abused by authoritarian governments to stay in power, to silence the opposition and to restrict human rights in general. Strict limits on the duration, circumstance and scope of such powers is [sic] therefore essential. State security and public safety can only be effectively secured in a democracy which fully respects the Rule of Law. This requires parliamentary control and judicial review of the existence and duration of a declared emergency situation in order to avoid abuse.223
With particular reference to the Convention, one might add that its very nature as a human rights instrument marrying a catalogue of rights to supervision by an international organism dictates a restrictive approach.
The terms and conditions setting out the extent of the latitude left to the State as well as its exercise are set out in Article 15, which reads as follows:
- 1.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.
- 2.No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision.
- 3.Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed.
This part sets out by exploring the limits of the very concept of âderogationâ.
It next suggests a Convention-relevant definition of âwarâ, an expression that has never been given any construction in the case-law of the Court and the Commission, and examining the circumstances in which a Convention State may be entitled to invoke the existence of a âwarâ in support of derogating measures. The suggestion is that the definition of âwarâ for the purposes of Article 15 should be tied to the concept of âarmed conflictâ, as that expression is used in fields of international law other than international human rights law.
It continues by examining the cases in which the Commission and the Court have been required to review Statesâ use of Article 15, all of which occurred in the context of a claimed âpublic emergencyâ.
It studies the limitations on measures derogating from particular Convention rights â the so-called non-derogable rights â and the substantive, legal and formal requirements to which derogation is subject.
It briefly considers one case
4.2
The basic principle is that the Convention remains fully applicable even in time of war or other public emergency threatening the life of the nation. That much is clear from the very structure of Article 15 § 1: should such a dire eventuality materialise, Contracting Parties are permitted, subject to certain conditions, to take measures derogating from their obligations. Nonetheless their obligations remain unaffected unless and until they do.224
As used in legal parlance, the meaning of âto derogateâ is âto repeal or abrogate in part (a law etc.); destroy or impair the force, effect, or authority ofâ.225
It is therefore implicit in the expression âderogationâ that Contracting States are given a measure of latitude, in certain circumstances, to limit the exercise of substantive rights guaranteed by the Convention.
On a substantive level, the conditions governing derogation under Article 15 are the following:
- âFirstly, derogation under Article 15 is only permitted in time of âwar or other public emergency threatening the life of the nationâ.
- âSecondly, there are rights from which derogation is not permitted in even the direst of circumstances (usually referred to as the ânon-derogable rightsâ).
- âThirdly, any measures taken must be âstrictly required by the exigencies of the situationâ.
- âFourthly, they must not be inconsistent with the Stateâs other obligations under international law.
There is in addition a formality to be observed, namely notification to the Secretary General of the Council of Europe â a âformal and public actâ which is a necessary requirement for any Article 15 derogation to be valid.226
It should be noted already at this point that derogation under Article 15 does not dispense the Court from considering whether or not the measure complained of was per se permissible under the Convention. Only if it is not will the Court consider whether the derogation invoked by the respondent Government is, firstly, valid, and secondly, sufficient to restore to that measure its acceptability.227 Moreover, the Court will not examine the application of Article 15 of its own motion if the parties themselves do not ask it to.228
The effect of Article 15 derogation is thus not to limit the jurisdiction of the Court. Indeed, the latter would sit ill with Article 32 of the Convention, which extends the Courtâs jurisdiction to âall matters concerning the interpretation of the Convention and the Protocols theretoâ, including the question whether the Court has jurisdiction at all. Already for this reason a Government cannot use Article 15 to âswitch offâ the powers of the Court when they become an inconvenience, as some writers and at least one Government seem to have suggested.229
Nor does derogation limit the rights derogated from as such, but only the protection of their exercise. In the words of Loof, if a Convention State makes use of the possibility to derogate from certain of its obligations under the Convention, all that is excluded is State liability for the failure fully to meet those obligations.230 This is illustrated by the fact that States may lodge notices of derogation but are not for that reason obliged to make full use of the possibilities offered â and indeed, sometimes they have not.231
However grave the crisis, an obligation to make use of the possibilities offered by Article 15 does not exist. For example, the Russian Federation has been locked in a bitter struggle against a murderous foe in the Northern Causasus. The weapons resorted to by the Russian armed forces have included Sukhoi
SU-24M and SU-25 attack aircraft armed with large numbers of 250-270 kg bombs. Even so, the Russian Government have not seen fit to lodge a notice of derogation. Consequently, the Convention remains fully applicable and is fully applied by the Court â the only restriction being defined by the reservation made by the Russian Federation at the time of ratification (which relates to Article 5 §§ 3 and 4).232
4.3
It has become clear that the age of armed conflict, whether international or not, is not yet behind us. The question what constitutes âwarâ for purposes of Article 15, and what the significance of the use of that expression should be, has therefore lost none of its importance.
It is submitted that, for our purposes, the expression âwarâ makes no sense divorced from its ordinary meaning in international humanitarian law â that is, if it does not mean either an international armed conflict or an armed conflict not of an international character between a State and a non-State armed group but reaching the minimum intensity needed to trigger the applicability of international humanitarian law.233
4.3.1
Article 1 of the Hague Convention (III) on the Opening of Hostilities (1907) requires âprevious and explicit warning, in the form either of a reasoned declaration of war or of an ultimatum with conditional declaration of warâ before hostilities are permitted to commence.234 Since 1941 there has been no declaration of war in such terms,235 although as all the world knows there have been serious and violent conflicts between States involving the deliberate use of force by one to overcome resistance by another.
If one conveniently overlooks the Greek law of 1940 declaring war on Albania, which created a state of war that apparently continues to the present day (much to the embarrassment of all concerned),236 then probably the closest to a declaration of war in the classical sense by a Convention State was the United Kingdomâs declaration with effect from 12 April 1982, in response to the Argentinian invasion of the Falkland Islands, of a âMaritime Exclusion Zoneâ two hundred miles wide around a point defined in the centre of that territory. Within this zone, Argentinian warships and naval auxiliaries would be treated as hostile and liable to attack by British forces. Towards the end of April this zone became a âTotal Exclusion Zoneâ, from which Argentinian aircraft both military and civil were excluded in addition to naval forces. On 7 May 1982 the zone was extended to cover
Nevertheless, while in terms of classical law of war hostilities between States are only permitted following a declaration of war (whether conditional or not), permissibility is not a prerequisite to the existence of a state of war.
To begin with, the expression âwarâ has never been limited to conflicts between sovereign States. Already Hugo Grotius, in De iure belli ac pacis, reminds us that wars may be âpublic, private or mixedâ depending on the nature of the parties:
Publicum bellum est quod auctore eo geritur qui iurisdictionem habet; privatum, quod aliter; mixtum, quod una ex parte est publicum, ex altera privatum.238
To define a contemporary understanding of the concept of war, one that is appropriate to international human rights law, it would appear sensible to turn to the field of international law that actually regulates its conduct â namely, international humanitarian law, also referred to as the law of armed conflict, or the law of war (the terms are synonymous).239
Modern international humanitarian law is based on the same understanding of war as that of Grotius. The four Geneva Conventions of 1949, for example, apply to
all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them240
- âthus making it clear that a state of âarmed conflictâ relevant to those Conventions does not depend on a formal declaration of war â and to
all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance241
as well as to
armed conflicts not of an international character occurring in the territory of one of the High Contracting Parties242
- âwhich by definition, if the conflict is not to be international, implies either that the High Contracting Party concerned is in conflict with at least one nonState organised armed group or that non-State organised armed groups are fighting each other.243
Article 1 of Additional Protocol II to the 1949 Geneva Conventions develops and supplements common Article 3, rendering the Protocol applicable to armed conflicts
which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol244
while specifically excluding
situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts245
The International Criminal Tribunal for the Former Yugoslavia gives the following definition of âarmed conflictâ:
An âarmed conflictâ is said to exist âwhenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organised armed groups or between such groups within a Stateâ246
- âwhich definition
focuses on two aspects of a conflict; the intensity of the conflict and the organization of the parties to the conflict. In an armed conflict of an internal or mixed character, these closely related criteria are used solely for the purpose, as a minimum, of distinguishing an armed conflict from banditry, unorganized and short-lived insurrections, or terrorist activities, which are not subject to international humanitarian law.247
The International Committee of the Red Cross, in an Opinion Paper of March 2008, summarises the distinction between an armed conflict not of an international character (Non-International Armed Conflict, âNIACâ) and âmereâ internal disturbances and tensions, riots or acts of banditry, in the following terms:
First, the hostilities must reach a minimum level of intensity. This may be the case, for example, when the hostilities are of a collective character or when the government is obliged to use military force against the insurgents, instead of mere police forces.
Second, non-governmental groups involved in the conflict must be considered as âparties to the conflictâ, meaning that they possess organized armed forces. This means for example that these forces have to be under a certain command structure and have the capacity to sustain military operations.248
In its 2016 Commentary on the First Geneva Convention, the International Committee of the Red Cross (ICRC) describes an âarmed conflict not of an international characterâ as follows:
A situation of violence that crosses the threshold of an âarmed conflict not of an international characterâ is a situation in which organized Parties confront one another with violence of a certain degree of intensity. It is a determination made based on the facts.249
It is submitted that the understanding of the expression âarmed conflictâ as used in the four Geneva Conventions and their Additional Protocols, whether of an international character or not, is equally appropriate to the understanding of the expression âwarâ for purposes of Article 15 of the Convention, it being understood that in the case of an armed conflict not of an international character one of the protagonists must be the State; in other words, that the expressions âwarâ and âarmed conflictâ are interchangeable.250
4.3.2
4.3.2.1
The classical understanding of âwarâ as a legal concept encompasses only armed conflict between two or more states (or alliances). It is to this concept that the classical laws of armed conflict, or laws of war, are applicable â the Hague Conventions of 1899 and 1907 including their protocols and all the Geneva Conventions entered into between 1864 and 1949.
To date Article 15 has never been invoked in
Neither, in Strasbourg case-law, has the expression âwarâ been applied to military operations involving Contracting States acting extra-territorially, as in Afghanistan, Bosnia and Herzegovina, Kosovo or the Middle East.252 In BankoviÄ253 and Hassan,254 the Court notes that âalthough there have been a number of military missions involving Contracting States acting extra-territorially since their ratification of the Convention, no State has ever made a derogation pursuant to Article 15 of the Convention in respect of these activitiesâ.
However, in Varnava and Others the Court implicitly recognised that an international armed conflict had existed between Cyprus and Turkey at the time of the disappearance of the victims of the violation found (although this fell outside the Courtâs jurisdiction ratione temporis).255
On the one occasion when a Contracting State relied on the existence of an âinternational armed conflictâ in a context relevant to Article 15 of the Convention â Hassan â the Court deferred to the Governmentâs view256 rather than follow that of the applicant, who considered the conflict to be a non-international one fought on foreign territory.257
4.3.2.2
As we have seen, there are situations on the continent that arguably constitute ânon-international armed conflictsâ258 and accordingly, for our purposes, âwarsâ; but Article 15 has never been invoked in respect of these either.
The expression âwarâ is rarely, if ever, used by States in relation to internal conflicts on their own territory. It has been suggested, not implausibly, that Governments may be reluctant to admit that a non-state organised armed group has acquired the potential to challenge their monopoly on the use of force, and especially to recognise that the situation of violence has reached the high threshold of application of Additional Protocol II to the Geneva Conventions.259 The latter in particular, despite its reassuring recognition of the Stateâs right to strive to reimpose its rule,260 implies recognition that the armed group is not merely organised, but under responsible command and exercises control over territory allowing it to conduct sustained and concerted military operations261 â an admission of weakness, on the part of the State, that can fairly be described as a testimonium paupertatis262 â and enjoins the State to vouchsafe to its opponents, whom it would otherwise be entitled to try as rebels or traitors, the âwidest possible amnestyâ.263 Worse still, conferring any such degree of legitimacy on an armed group might amount to constructive recognition of the latter as a âliberation movementâ possessed of rights of its own under international law, including the right of a disgruntled ethnic minority to âselfdeterminationâ or to the protection of a foreign power invested with a corresponding âresponsibility to protectâ.264
An expression more frequently applied to armed non-state opponents of Government â with the active or tacit endorsement of the Court â is âterroristâ, even when the opponents pose a significant armed threat and expressly intend to wrest control over part of the territory of the state from the Government.265 It is submitted that as a legal categorisation of armed opponents use of this expression is unsatisfactory. The word terrorism describes a tactic that can be loosely defined as âcriminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposesâ266 and that may be resorted to not only by renegades and religious fanatics but also by Government forces.267 On this view, the so-called âwar on terrorâ declared by the Bush Administration in the USA is not a âwarâ properly so-called; the paradigm is one of law enforcement, not armed conflict, whether international or non-international.268
In a judgment of 10 January 1996 the Constitutional Court of the Russian Federation proceeded on the implicit recognition that Additional Protocol II was applicable to the conflict which was at that time being fought in Chechnya (later to be known as the First Chechen War), and that its provisions were âbinding on both parties to the armed conflictâ.269 However, Russia became a party to the Convention only on 5 May 1998, by which time the First Chechen War had been over for nearly two years.
Korbely v. Hungary remains to date the only case in the Courtâs history in which the Government of a State Party to the Convention has recognised a situation on its own territory as amounting to a non-international armed conflict.270 The situation was, in fact, the 1956 uprising against Soviet-imposed Communist rule, which the post-Communist Government of Hungary could safely recognise as legitimate.
4.3.3
4.3.3.1
It does not follow as night follows day that âthe life of the nationâ will be âthreatenedâ by the existence of a conflict, whether of an international character or not.271 A limited war fought far away on foreign soil, for example, need not constitute a vital danger. Many (though not all)
The question is therefore whether such a âthreatâ should be required for Article 15 derogation to be permissible in time of âwarâ, as distinct from a mere âpublic emergencyâ â in other words, whether (and if so, to what extent) the words âthreatening the life of the nationâ qualify âwarâ as they do the words âother public emergencyâ. The retrospective assessment to be made under the Convention of wartime acts and decisions depends on it.
4.3.3.2
The first question is what constitutes the territory of the Convention State. Undoubtedly the secession of Algeria (1954-62) was felt in metropolitan France as a âwarâ on French soil, and one that threatened the life of the nation at that. Nonetheless, it has to be said that the French Republic has survived, magnificently, despite the loss of the Algerian départements. Be that as it may, the Convention could not apply to that particular conflict: France ratified it only in 1974. Moreover, the guerre dâAlgérie was only officially declared to have been a âwarâ post factum, in 1999.273
While the expression âwarâ will not be as quickly resorted to by Governments (or courts, whether domestic or international) as by journalists, the question whether a conflict worthy of that name must also constitute a threat to âthe life of the nationâ before Article 15 can be brought into play is, in our submission, pointless if the conflict results from a conventional kinetic conflict on the home territory of a Convention State. It is difficult to conceive of a situation in which an actual âwarâ being fought on home territory does not also constitute an âemergency threatening the life of the nationâ; most likely, therefore, the very intensity of the conflict will provide the answer.
The right of a Contracting State to fight a defensive war against a foreign attacker on its home territory pending action by the United Nations Security Council will be governed, in principle, by Article 51 of the Charter of the United Nations. We do not doubt that such a Contracting State would be entitled to avail itself of Article 15 in any case.
4.3.3.3
The question whether a conflict is international in character or not, and if not, sufficient to justify the expression âwarâ is of great practical importance when considered in the context of what is now called hybrid warfare. A definition of âhybrid warfareâ appears not to exist, but until now the expression has been used to describe a combination of conventional kinetic warfare and unconventional tactics such as cyber-attacks and the covert use of irregulars who may have been recruited from among the population of the State under attack (members, perhaps, of a minority of the same ethnicity as the population of the attacking state). Typically the attacker is expected to limit the intensity of the conflict and make it appear non-international, so as to reduce the likelihood of triggering a military response by an existing military alliance â such as NATO, under Article 5 of the Washington Treaty â and create a fait accompli.274
The leaders of the State under attack will need both the perception to identify the threat as coming from abroad and the courage to say so in public â for only thus can they be sure that a low-intensity conflict that, to a superficial observer, may appear to be a mere internal disturbance that offers no particular threat to the life of the nation will entitle them to invoke Article 15 of the Convention (not to mention, in the case of NATO members, Article 5 of the Washington Treaty).275
4.3.3.4
It has been suggested that a Contracting State acting extraterritorially, as several have done in Iraq and Afghanistan, should not be allowed to derogate from the Convention under Article 15; but conversely, the Courtâs observation that the United Kingdom âdid not purport to derogate under Article 15â, which appears in Hassan276 but also in Al-Jedda,277 has been construed a contrario by at least one author as suggesting that it would have been possible for the United Kingdom to derogate in respect of its operations in Iraq.278
We consider that since â as we will see below279 â the Convention is capable of applying extraterritorially to the use of âhard powerâ, the corresponding availability of Article 15 is a necessary corollary.
We would however add the caveat that the position on whether a âwarâ must also threaten the âlife of the nationâ for Article 15 to apply may well be different if a State Party to the Convention engages in a âwarâ outside its own home territory rather than on its home territory in self-defence.
4.3.3.4.1
Between 1947 and 1949 the Netherlands embarked on âpolicing operationsâ â counter-guerrilla offensives â in its East Indies, and later, in 1962, defeated an Indonesian naval attack on Netherlands New Guinea; in the 1950s the United Kingdom suppressed uprisings in northern Borneo, Kenya and elsewhere;280 and until 1975 Portugal fought bitterly to retain control of Angola, Mozambique and Portuguese Guinea. Colonial wars eventually went out with colonialism; and as France weathered the loss of Algeria, so also European colonial powers overcame the loss of possessions that had often been sources of prosperity for centuries. It may therefore be argued that the secession of overseas territories did not, in retrospect, affect the home country to the point of âthreatening the life of the nationâ. Nevertheless, just as the United Kingdom was permitted to invoke Article 15 in respect of a mere âemergencyâ in Cyprus â then still one of its remaining Crown Colonies â the mother country would surely have been entitled to make use of Article 15. It was, after all, the life of the colony or territory itself, as an integral part of the State, which was threatened.
It is worth noting in this connection that the Convention does not comprise any provision that can be construed as permitting territorial or ethnic entities to secede. In particular, it has no provision comparable to, for example, Article 1 § 1 of the International Covenant on Civil and Political Rights, which recognises to âall peoplesâ a right of âself-determinationâ. This is perhaps just as well, since the âself-determinationâ argument can be wielded in support of diametrically opposed interests even within the jurisdiction of a single Contracting State.281 In any event, it is by no means certain that âoutside the context of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation, the international law of self-determination confers upon part of the population of an existing State a right to separate from that Stateâ.282
The availability of Article 15 in the event of a foreign attack on an overseas colony (or other non-self-governing territory) is a matter on which there can be no controversy. Had the Convention applied in 1942, no right-thinking person would have thought ill of the United Kingdom Government for derogating under Article 15 in respect of Hong Kong or British Malaya, or of the Dutch Government (then in exile in London) for doing so in respect of the Netherlands East Indies.
Even so, the Argentinian attack on the Falkland Islands in 1982 did not induce the United Kingdom Government to invoke Article 15. In an opinion submitted to the British House of Commons a legal scholar states, though he does not explain, that in the Falklands crisis âthe legal conditions for invoking Article 15 were undoubtedly satisfiedâ.283 Indeed, if the British claim to sovereignty over the Falkland Islands is valid in international law (and it has never been called into question in the case-law of either the Commission or the Court), it is difficult to argue that the United Kingdom was not entitled to rely on Article 51 of the Charter of the United Nations â as in fact the United Kingdom did throughout the conflict.284
4.3.3.4.2
In terms of international law, the Korean War (1950-1953) was a conflict unlike any other. It remains, so far, the only âwarâ dignified by that name fought with the prior authorisation of the Security Council of the United Nations.285Since therefore, in strictly formal terms, there can be little doubt as to its legality, there would be little point in posing any requirement that it constitute a direct threat to the life of the nation â which indeed, remote as the conflict was from Europe, it arguably did not for the European States that took part under the flag of the United Nations.286 It would however have been incongruous to deny the availability of Article 15 had the Convention been in force at the time.
4.3.3.4.3
More Contracting States now participate in peace operations on foreign soil than take part in international or non-international armed conflicts as belligerents in their own name. Peace operations may be based on the consent of the host State, or they may be mandated by the Security Council287 â peace-keeping under Chapter VI of the United Nations Charter, or peace enforcing under Chapter VII288 â or both.
A peace operation is not necessarily an armed conflict, whether international or non-international; but even if it does not start out as one, it may degenerate into one, either because an already tense situation escalates or because the peacekeepers or peace enforcers are dragged into a conflict between others. Such may be the case, for example, when peacekeepers are attacked by insurgents or when they intervene on the side of one or other of the parties to an existing
Until now, Contracting States have not derogated under Article 15 in respect of such operations. There is, however, no reason why they should not be entitled to. It is in the logic of things that the right, in principle, to make use of Article 15 should follow the existence of Article 1 jurisdiction.291
The question arises in particular in respect of peace operations that are not subsidiary organs of the United Nations. With a few early exceptions, peace operations mandated by the Security Council have been its subsidiary organs;292 such operations are subject to a regime of their own, which may preclude attribution of violations of the Convention altogether.293
4.3.3.4.4
In recent years, the concept of âresponsibility to protectâ has emerged.294 First formulated in a report of an expert body set up by the Canadian Government to attempt to identify principles governing âhumanitarian interventionâ295 â an idea that was, and remains, controversial as it is perceived by some as difficult to reconcile with State sovereignty and by others as a contradiction in terms296
- âit found its first expression in an official legal text in 2005, when the United Nations General Assembly adopted the outcome of the World Summit:
The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter of the United Nations, to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. We stress the need for the General Assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law. We also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out.297 (emphasis added)
The United Nations Security Council reaffirmed this paragraph in April of the following year298 and in November 2009,299 and actually referred to it in a resolution of August 2006 authorising action under Chapter VII of the UN Charter in Darfur.300
In this light, it would be difficult to deny the applicability of Article 15 of the Convention if the Security Council, having found that national authorities of a State, perhaps a State that is not a party to the Convention, are âmanifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanityâ and peaceful means are inadequate, authorises âcollective actionâ to be taken by Contracting Parties in application of Chapter VII.
4.3.3.4.5
What if an aggressor State seeks to rely on Article 15 of the Convention?301 Wars may turn against the aggressor State, which may end up seeing its very existence threatened. Examples abound, including in recent history. As the expression is, ex iniuria ius non oritur: surely it would offend against the very principles on which human rights law is built302 if such a State could get away with limiting the substantive protection which it has undertaken in the Convention to protect.303 Had the Convention existed in 1944, no one in their right mind would have wished to vouchsafe the right to derogate to Nazi Germany.
Of course, the aggression of Nazi Germany is the obvious example â and to date the only such case (in Europe at least) that is not denied by the successor State. Even in interstate or pseudo-interstate cases, the Court has never found any other State to have committed an act of âaggressionâ though aggrieved Governments have sometimes made suggestions of that nature.304
As it is, Article 2 § 4 of the United Nations Charter requires States to
refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
This is accepted as a rule of ius cogens.305 That leaves only âdemonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nationsâ sanctioned by the Security Council (Article 42 of the Charter) and individual or collective self-defence (Article 51), both set out in Chapter VII of the Charter, as permissible instances of the âthreat or use of forceâ in international relations, and perhaps, in some situations, enforcement action as part of a regional arrangement (Chapter VIII of the Charter) â again, provided that it be sanctioned by the Security Council (Article 54). Other than these, non-consensual military adventures abroad without the blessing of the Security Council, even well-intentioned ones, are not permitted.306
Superfluously perhaps, Article 103 of the Charter provides that obligations under the Charter itself override obligations under any other treaty. As a necessary corollary, obligations under the Charter negate any rights under such another treaty with which they are incompatible.307 That would include, in the event of such incompatibility, any right to derogate from the Convention.
4.3.3.4.6
On 6 July 2016 a Committee of British Privy Council members under the chairmanship of Sir John Chilcot published a report (the Report of the Iraq Inquiry, known as the âChilcot Reportâ) on the decision-making that led to the military involvement of the United Kingdom in Iraq starting in 2003.
The stated intention of the report is not to express an opinion on the legality in terms of international law of the decision of the United Kingdom to take part in the American-led invasion and occupation of Iraq, although it notes, unambiguously, that the United Kingdom did so without the authorisation of the Security Council and before the point was reached where military action was the last resort,308 and that
Unlike other instances in which military force has been used, the invasion was not prompted by the aggression of another country or an unfolding humanitarian disaster.309
It has been suggested that in the circumstances the United Kingdom would not have been entitled to derogate under Article 15 in respect of an elective overseasoperation.310
The Chilcot Report reassures the reader that
The decision to join the US-led invasion of Iraq in 2003 was the product of a particular set of circumstances which are unlikely to be repeated311
- âwhich is just as well.
4.3.4
We have no doubt that a Contracting State making use of its right to individual and collective self-defence under Article 51 of the United Nations Charter may avail itself of Article 15 of
If the Contracting State resorts to the use of âhard powerâ outside its own territory in compliance with a mandate of the Security Council under Article 42 or Article 54 of the Charter, as in the case of the Korean war of 1950-1953 or a peace operation mandated by the Security Council, it is in our opinion open to that State to make use of Article 15.
Provisionally, one must conclude that the expression âthreatening the life of the nationâ does not qualify âwarâ as long as the âwarâ is being fought in accordance with the Charter of the United Nations: that is, either in pursuance of a decision of the Security Council (Article 42 or Article 54) or, pending action by the Security Council, for individual or collective self-defence (Article 51).
Interestingly, support for this view can be drawn from the drafting history of Article 4 of the International Covenant on Civil and Political Rights. Even though the drafters of the Covenant refused to countenance the possibility of war in the text of the instrument itself, they did consider the legality of war in the context of the âother obligations under international lawâ with which derogating measures must be consistent:
The opinion was expressed that reference to the Charter [of the United Nations] would ⦠make it clear that war was recognized only in case of self-defence or for other reasons consonant with the Charter. It was pointed out, however, that the principles of the Charter were part of international law â¦312
This, however, does not tell us what the law is when Article 51 of the Charter does not apply and the Security Council has not, or not yet, explicitly authorised military action under Chapter VII or Chapter VIII.
For all that it finds no violation of Article 5 despite the absence of a derogation under Article 15, the Hassan judgment gives us some indication of what the position might be. It will be remembered that UNSC Resolution 1441 (2002) of 8 November 2002 referred to Chapter VII of the Charter but did not in terms authorise the use of force against Iraq (although it did reiterate warnings that Iraq would âface serious consequences as a result of its continued violations of its obligationsâ).313 Having established the jurisdiction of the United Kingdom (in terms of Article 1 of the Convention), the Court referred to case-law of the International Court of Justice to find that âthe protection offered by human rights conventions and that offered by international humanitarian law [coexisted] in situations of armed conflictâ.314 The Courtâs willingness to construe the guarantees of Article 5 in the light of provisions of the Third and Fourth Geneva Conventions, which cover the detention of prisoners of war and the internment of civilians for security reasons respectively in situations of international armed conflict, suggests that a fortiori the Court might not have been disinclined to give favourable consideration to a notice of derogation had one been in place â at least, not at that time.315
4.4
The effect of derogation under Article 15 is not to make the rights derogated from entirely inoperable. No measures derogating from the Convention may go further than âstrictly required by the exigencies of the situationâ; and moreover, they must not be âinconsistent with [the Stateâs] other obligations under international lawâ.
Views can â and do â differ from case to case, and depending on standpoint, as to what is âthe extent strictly required by the exigencies of the situationâ.316 So do views on what constitute âother obligations under international lawâ.317 There is however no room for discussion on the applicability in an armed conflict, be it international or non-international, of international humanitarian law. The importance of this statement derives from the fact that international humanitarian law admits of no further derogation: by its very nature, when it applies it sets the lowest permissible legal standard of rights protection.318
4.5
Ireland derogated from the Convention in the 1950s, when the IRA was causing trouble; the United Kingdom did so, also in the 1950s, to deal with EOKA insurgents in what was then its âCrown Colonyâ of Cyprus; the Greek colonels did so, to counter the political threat from the left; the United Kingdom did so again, for a while, in respect of Northern Ireland; Turkey did so at the height of the troubles with the PKK; and as we shall see, the United Kingdom did so, yet again, after the 9/11 attacks.
In recent years, internal turmoil led Albania to enter a derogation in 1997 referring to a âconstitutional and public order crisisâ319 and riots induced the Armenian Government in 2008 to declare a state of emergency in the capital Yerevan in 2008 requiring it to derogate from freedom of information, assembly and movement for twenty days.320 An outbreak of bird flu caused by the H5N1 virus caused Georgia to derogate for a short period in 2006,321 as did an attempted coup dâétat in 2007,322 but the Russian incursion into Abkhazia and South Ossetia in 2008 did not.
The most recent notices of derogation are that submitted by Ukraine on 10 June 2015, which as already mentioned is based on what Ukraine submits to be the unlawful Russian occupation and annexation of Crimea and the separatist violence in the Ukrainian east; that of France, lodged on 24 November 2015 in the wake of the terrorist attacks in Paris of the preceding 13 November, extended several times since; and yet another lodged by Turkey, this time on 21 July 2016 after the attempted coup dâétat of 15 July 2016.323 The French derogation was terminated in November 2017.324 The Turkish state of emergency was terminated on 19 July 2018; the Turkish derogation was formally withdrawn by note verbale of 8 August 2018.325 The Ukrainian derogation remains in force at the time of writing.
The attacks of â9/11â prompted the North Atlantic Council to state the very next day that
if it [was] determined that this attack was directed from abroad against the United States, it [should] be regarded as an action covered by Article 5 of the Washington Treaty, which states that an armed attack against one or more of the Allies in Europe or North America shall be considered an attack against them allâ and that âthe United Statesâ NATO Allies [stood] ready to provide the assistance that [might] be required as a consequence of these acts of barbarism.326
It was soon suspected, and later confirmed, that the attacks were directed from Afghanistan by al-Qaeda.327 To this day this remains the only occasion on which Article 5 of the Washington Treaty has been activated.
Yet despite the magnitude of the attack on a major ally whose support was essential to their own security and the resulting certain need for a robust military response, not one of the European NATO members â all of which are Contracting Parties to the Convention â derogated from the Convention under Article 15 on that ground alone. At this remove, one can only surmise that if this failure was not a massive oversight, which seems unlikely, none of them was willing either to declare war or to recognise publicly the capability of a non-state actor to cause âa public emergency threatening the life of the nationâ.
We cannot know now what view the Court would have taken of any derogation announced in reliance on the statement of the North Atlantic Council. That said, it is apparent that Governments of Contracting States do not view the activation on Article 5 of the Washington Treaty by itself as evidence of a situation requiring derogating measures. Accordingly, should any Contracting State in future wish to derogate from the Convention following a decision to activate Article 5 of the Washington Treaty, it will presumably be necessary to identify features distinguishing the new situation from the immediate aftermath of the 9/11 attacks.
In fact, only the United Kingdom derogated under Article 15 of the Convention in the wake of the 9/11 attacks â but only from its obligations under Article 5 § 1 (f), with a view to enhancing its powers to detain suspect foreign nationals and remove them from its territory.328 This derogation accordingly bore no direct relation to the 9/11 attacks themselves, nor to the military activity that would soon follow.
4.5.1
4.5.1.1
Having been a part of the Ottoman Empire since the sixteenth century and placed under British administration after the Congress of Berlin in 1878, Cyprus was made a British Crown Colony during the First World War. After the Second World War, a Greek Cypriot movement sprouted which sought unity with the Kingdom of Greece (enosis). This led to the founding, in 1955, of the EOKA movement, which sought to bring about such unity by armed struggle.
The British colonial government responded by enacting emergency legislation and deporting the Greek Cypriot leader, Archbishop Makarios III, and three of his followers to the Seychelles. The United Kingdom Government transmitted notes verbales giving notice of derogation under Article 15 to the Secretary General of the Council of Europe on 7 October 1955 and 13 April 1956.
In May 1956 the Kingdom of Greece brought an interstate application against the United Kingdom, which responded by invoking its derogation.
Losing little time, the Commission declared the application admissible less than a month later,329 holding among other things that âthe effects of derogations made by the Government of the United Kingdom under Article 15 of the Convention relate[d] to the merits of the case and not to the admissibility of the applicationâ. It then appointed a âSub-Commissionâ from among its members to establish the facts.
The Commission, in plenary formation once more, adopted its report330 on 26 September 1958. It is a bulky document, published in two volumes. The first volume deals with the preliminary issues, namely whether there was a âpublic emergency threatening the life of the nationâ and whether the notice given to the Secretary General of the Council of Europe was sufficient in its terms. The second goes into the substance of the derogating measures.
In considering whether there was a âpublic emergency threatening the life of the nationâ, it first determined that the expression ânationâ meant not the United Kingdom itself or the Commonwealth, but âthe people and its institutions, even in a non-self-governing territory, or in other words, the organised society, including the authorities responsible both under domestic and international law for the maintenance of law and orderâ. Any other interpretation would have made nonsense of the âcolonial clauseâ contained in then Article 63 of the Convention (now Article 56) by hindering a colonial power in taking measures aimed at preventing the violent overthrow of a subordinate government.331
The Commission next noted that during the year 1955 until the state of emergency was proclaimed (on 26 November 1955), EOKA violence had killed 11 persons and wounded 74 more. There had been 185 bomb explosions, 20 cases of arson and 3 âraids on police stations etc.â From the proclamation of the state of emergency until 14 March 1957 when EOKA declared a truce there were a further 245 killed and 636 wounded, 866 bomb explosions, 251 cases of arson, and 57 raids. These figures had to be seen against the background of the population of Cyprus, which at the time numbered only some 500,000 souls. During EOKAâs self-declared truce the occurrence of incidents involving violence was reduced, but strikes, riots, demonstrations and âreported threats and intimidationâ continued.
The Commission was unwilling to accept the Greek argument that there was no âemergency threatening the life of the nationâ during the first period, up to 26 November 1955. Such a conclusion might have been justified if only the number of incidents were taken into account; however, âthese incidents emanated from a fast-growing and militant organisation which, according to its own statements, aimed at obtaining self-determination for Cyprus by all possible means, including force and violenceâ. The existence of such a threat already at that time was accordingly âat least plausibleâ. The Commission continued:
The assessment whether or not a public danger existed is a question of appreciation. The United Kingdom Government made such an assessment of the situation prevailing at that time and concluded that there existed a public danger threatening the life of the nation. That this appreciation by the British Government was correct was subsequently proved by the great increase of violence which occurred between November 1955 and March 1957.332
There could, however, be no doubt that such a threat existed during the second period (November 1955-March 1957), when the threat perceived earlier materialised.
During the remaining period, other developments had included the emergence of a Turkish Cypriot counter-movement opposed to unification with Greece, which also threatened to turn violent, and tensions between the political right, represented by EOKA and related organisations, and the political left, which was said by the United Kingdom Government to have links to the Communist movement.
All these factors together led the Commission, with one dissenting vote (that of its Greek member, Mr C.Th. Eustathiades),333 to express the following opinion:
The Commission of Human Rights is authorised by the Convention to express a critical opinion on derogations under Article 15, but the Government concerned retains, within certain limits, its discretion in appreciating the threat to the life of the nation. In the present case the Government of Cyprus has not gone beyond these limits of appreciation.334
The substance of the complaints made by the Greek Government concerned the use of curfews, allegedly imposed on communities by way of collective punishment; arrest without warrant and detention for up to sixteen days before the detainee was brought before a court; detention without trial of terrorist suspects; the deportation of Archbishop Makarios and the others; the infliction of corporal punishment on male juvenile offenders (whipping); the application of collective punishments (other than curfews); and the existence and use of powers to search and censor, control burials, prevent processions and meetings, close schools and restrict the right to strike.
A majority of the Commission was unable to find that the curfews had been anything other than necessary measures to maintain order.335 As to arrest without warrant, the Commission noted that it was not prohibited by the Convention. As regards administrative detention for up to sixteen days, the Commission noted that this measure was not mentioned in the notice of derogation but found nonetheless that since a notice of derogation had been lodged which covered detention without trial the omission was âa technical rather than a substantive departure from the term of the Conventionâ.336 On the subject of detention without trial of suspected terrorists, a majority of the Commission recognised that this was an extraordinarily far-reaching measure but accepted that it was necessary in an environment where the intimidation of witnesses made it unlikely that a conviction could be secured at trial, and also that safeguards existed, in the form of a habeas corpus procedure, to prevent abuse.337 Archbishop Makarios and the three others having been released from detention in the Seychelles, the remaining issues were their removal from Cyprus and the order preventing their re-entry; these a majority of the Commission did not find to violate Articles 5 and 8 of the Convention as such.338 The other measures complained of were grouped together and accepted as legitimate within the terms of the second paragraphs of Articles 9, 10 11, respectively, simply in the light of the established existence of a âpublic emergency threatening the life of the nationâ.339 The Commission did not find it necessary to express a view on corporal punishment, the United Kingdom Government having agreed to discontinue the practice (though it survived a while longer in parts of the British Isles340); nor, for the same reason, did it give a legal opinion on collective fines.341
This report, the very first published by the Commission, unites all the elements of the later case-law under Article 15 of the Convention: the concept of a ânationâ; the question whether there is a âpublic emergencyâ threatening its âlifeâ; whether the matters in issue were âstrictly required by the exigencies of the situationâ; whether there was adequate notice given to the Secretary General of the Council of Europe; and whether there was compliance with âother obligations under international lawâ.
The case came to be known as the âFirst Cyprus Caseâ. There is, of course, a Second Cyprus Case; but the Commissionâs report in that case merely closes the file and is of no substantive interest whatsoever.342
4.5.1.2
Mr Gerard Lawless, a national and resident of the Republic of Ireland, was arrested in September 1956 with two others on suspicion of firearms offences, the group having been found in possession of a Thompson sub-machine-gun, six army rifles, six sporting guns, a revolver, an automatic pistol and 400 magazines. He admitted on that occasion having taken part in an armed raid in which guns and revolvers had been stolen. Put on trial for unlawful possession of firearms, he was however acquitted, the trial judge directing the jury that (in the words of both the Commission and the Court) âit had not been conclusively shown that no competent authority had issued a firearms certificate authorising him to be in possession of the arms concernedâ.343 Lawless was arrested a second time in May 1957, having been found in possession of documents implicating him in the planning of attacks to be carried out by the IRA on border posts and military and civilian targets in Northern Ireland. He was tried and sentenced to a brief term of imprisonment, which he served.
On 8 July 1957, after a series of IRA attacks on targets in both the Republic
of Ireland and Northern Ireland and shortly before the annual Orange Processions, the Irish Government activated the Offences against the State (Amendment) Act, 1940, giving Ministers of State the power to order the detention without trial of âany particular person (â¦) engaged in activities which, in his opinion, are prejudicial to the preservation of public peace and order or to the security of the Stateâ. The Irish Government informed the Secretary General of the Council of Europe accordingly on 20 July, invoking Article 15 of the Convention.
A few days later, on 11 July, Lawless was again arrested as being a suspected member of an unlawful organisation, namely the IRA. His detention was ordered by the Minister of Justice. He unsuccessfully challenged his detention in habeas corpus proceedings; he was released in December 1957 after giving an undertaking ânot to engage in any illegal activities under the Offences against the State Acts, 1939 and 1940â.
The Court, like the Commission before it, held that Article 5 §§ 1 (c) and 3 allowed the arrest and detention of a criminal suspect only for the purpose of bringing him before a judge and entitled him to trial within a reasonable time. These provisions therefore could not justify Lawlessâs detention between July and December 1957.344 The question therefore became whether any other Convention provision â Article 15 â could serve instead.
The Court interpreted the words âother public emergency threatening the life of the nationâ as meaning âan exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the State is composedâ, and concluded, given the attacks that had taken place and the violence to be expected around the time of the Orange Processions (12 July), that the Irish Government had been entitled to invoke Article 15. As to whether the measures taken were âstrictly required by the exigencies of the situationâ, the Court accepted that IRA activities were mainly intended to produce effects across the border, in Northern Ireland, and were extremely difficult to prevent from within the Republic applying ordinary criminal law. Short of sealing the border entirely, which would have had serious repercussions on âthe population as a wholeâ, administrative detention appeared an adequate response. Moreover, safeguards were in place in the form of a (non-judicial) Detention Commission that was accessible to the detainee and had the power to order release, and could in fact be ordered to do so by the courts. Finally, release could be obtained by means of an under-taking to desist from unlawful activity.345
4.5.1.3
On 21 April 1967 a group of senior officers of the Greek armed forces deposed the constitutional government of the Kingdom of Greece and, by Royal Decree, suspended certain provisions of the Greek Constitution guaranteeing basic rights. Over the following months the revolutionary government, as they styled themselves, disbanded Parliament and dissolved political parties; gave themselves sweeping powers of arrest, detention and search; introduced trial of political offences by military courts; imposed censorship on the media; suspended trade union freedoms; and replaced the Constitution. On 3 May 1967 the permanent representative of Greece transmitted a French translation of the Royal Decree to the Secretary General of the Council of Europe. On 27 September 1967 the permanent representative again wrote to the Secretary General, stating that the letter of 3 May had constituted a notice of derogation under Article 15 of the Convention and setting out the view of his masters that a public emergency existed that threatened the life of the nation: the letter made reference to anarchist demonstrations, revolutionary activity by Communist sympathisers and other left-wing movements, strikes called by trade unions and an alleged plot to subvert the armed forces. The letter added that there was no infringement of any of the non-derogable rights set out in Article 15 § 2.
Interstate applications against Greece were lodged by the governments of Denmark, Norway, Sweden and the Netherlands.346
The Commission gave a first decision on 24 January 1968, declaring the applications admissible; after the Danish, Norwegian and Swedish Governments submitted additional complaints, the Commission gave a follow-up decision on 31 May 1968 declaring these admissible also.
The Commission adopted its report on 5 November 1969.347 Considering, firstly, the argument of the Greek government that in applying Article 15 they were entitled to special consideration (in the form of a wider margin of appreciation) as a ârevolutionaryâ government, the Commission, referring to its first admissibility decision, reiterated that a revolutionary government was not absolved from its obligations under the Convention. That said, such a government âestablished in a High Contracting State, and recognised as representing this State in international relationsâ, might in principle invoke Article 15 provided that the conditions laid down in that Article were fulfilled348 â which, however, was not the case. The Commission found on the facts that the circumstances cited â the danger of a Communist takeover, the existence of a constitutional crisis and a breakdown in law and order â were not established: while undoubtedly there had been some political unrest in the years preceding the coup, to all appearances the cataclysmic events feared by the colonels had not been imminent and the constitutional Government had remained in firm control of the country until ousted.349 Although after the coup there had been a number of violent incidents and a number of illegal organisations had been formed, the Commission was not convinced that âeither factor [was] beyond the control of the public authorities using normal measures, or that they [were] on a scale threatening the organised life of the communityâ.350
Nevertheless, the Commission decided to consider whether the measures taken could have been said to have been âstrictly required by the exigencies of the situationâ had the derogation been valid. It came to the conclusion that the restrictions on the rights protected by Articles 5 and 6 did not meet that requirement, and that restrictions on the rights protected by Articles 8, 9, 10, 11 and 14 could not be considered ânecessaryâ within the substantive meaning of those Articles given the absence of any corresponding emergency threatening the life of the nation.351 A remedy within the meaning of Article 13 appropriate to complaints of torture had been lacking. Finally, there had been no need to suspend Parliament, in violation of Article 3 of Protocol No 1. In contrast, there had been no violation of Article 7 of the Convention,352 and there was no need to address issues raised under Article 1 of Protocol No. 1.353
The âGreek Caseâ, as the case came to be called, remains the only one to date in which either Strasbourg institution has refused to accept the Governmentâs assessment that an existential threat to the nation was sufficiently great to justify the taking of derogating measures in reliance on Article 15.
The case did not reach the Court. In the system as it existed at the time, either the Commission or an applicant or respondent Contracting State had to refer the case to the Court within three months from the date on which the Commissionâs report was transmitted to the Committee of Ministers of the Council of Europe (Articles 32 and 48 of the 1950 Convention); this did not happen. It therefore fell to the Committee of Ministers to express its opinion in the matter. On 15 April 1970 the Committee of Ministers adopted a resolution in which it adopted the Commissionâs views as its own.354
4.5.1.4
It is not necessary here to chart the background of the internecine conflict in Northern Ireland frequently referred to as âthe Troublesâ. Suffice it for present purposes that the United Kingdom sought to contain it by enacting, from 1974 on, a series of Prevention of Terrorism (Temporary Provisions) Acts proscribing certain named Irish Republican underground organisations that had a history of violence, broadening the powers of the police to arrest terrorist suspects and extending the permitted length of police custody, normally fortyeight hours, by a further five days.
In its Brogan and Others judgment of 29 November 1988, the Court held that there had been a violation of Article 5 § 3 of the Convention in respect of each of the applicants, all of whom had been detained under the Act in its redaction of 1984. The Court held that even the shortest of the four periods of detention concerned, namely four days and six hours, fell outside the constraints as to time permitted by the first part of Article 5 § 3.355
Less than a month later, on 23 December 1988, the United Kingdom lodged a notice of derogation with the Secretary General of the Council of Europe. As relevant to our discussions, it read as follows:
⦠Following [the Brogan and Others judgment], the Secretary of State for the Home Department informed Parliament on 6 December 1988 that, against the background of the terrorist campaign, and the over-riding need to bring terrorists to justice, the Government did not believe that the maximum period of detention should be reduced. He informed Parliament that the Government were examining the matter with a view to responding to the judgment. On 22 December 1988, the Secretary of State further informed Parliament that it remained the Governmentâs wish, if it could be achieved, to find a judicial process under which extended detention might be reviewed and where appropriate authorised by a judge or other judicial officer. But a further period of reflection and consultation was necessary before the Government could bring forward a firm and final view. Since the judgment of 29 November 1988 as well as previously, the Government have found it necessary to continue to exercise, in relation to terrorism connected with the affairs of Northern Ireland, the powers described above enabling further detention without charge, for periods of up to 5 days, on the authority of the Secretary of State, to the extent strictly required by the exigencies of the situation to enable necessary enquiries and investigations properly to be completed in order to decide whether criminal proceedings should be instituted. To the extent that the exercise of these powers may be inconsistent with the obligations imposed by the Convention the Government have availed themselves of the right of derogation conferred by Article 15(1) of the Convention and will continue to do so until further notice â¦356
Messrs Brannigan and McBride were arrested in January 1989. They were kept detained for six days, fourteen hours and thirty minutes, and four days, six hours and twenty-five minutes respectively without being brought before a magistrate. They complained of this under Article 5 § 3 of the Convention.
Given the precedent established by Brogan and Others, the United Kingdom Government were not in a position to dispute that the requirement of âpromptnessâ contained in Article 5 § 3 had not been met. Discussion therefore focused on the validity of the derogation.
The applicants, supported by a group of NGOs as intervening third parties (Amnesty International, Liberty, Interights and the Committee on the Administration of Justice), argued that the margin of appreciation left to the respondent Government in the matter should be a narrow one, especially since the state of emergency giving rise to the use of the special powers in issue had already been in existence for a very long time. The Court responded as follows:
The Court recalls that it falls to each Contracting State, with its responsibility for âthe life of [its] nationâ, to determine whether that life is threatened by a âpublic emergencyâ, and, if so, how far it is necessary to go in attempting to overcome the emergency. By reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle in a better position than the international judge to decide both on the presence of such an emergency and on the nature and scope of derogations necessary to avert it. Accordingly, in this matter a wide margin of appreciation should be left to the national authorities (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, pp. 78-79, § 207).
Nevertheless, Contracting Parties do not enjoy an unlimited power of appreciation. It is for the Court to rule on whether inter alia the States have gone beyond the âextent strictly required by the exigenciesâ of the crisis. The domestic margin of appreciation is thus accompanied by a European supervision (ibid.). At the same time, in exercising its supervision the Court must give appropriate weight to such relevant factors as the nature of the rights affected by the derogation, the circumstances leading to, and the duration of, the emergency situation.357
The majority of the Court had little difficulty accepting the existence of a public emergency âthreatening the life of the nationâ. That was clear enough in view of its own earlier case-law â Lawless, Ireland v. the United Kingdom â and from âall the material before it as to the extent and impact of terrorist violence in Northern Ireland and elsewhere in the United Kingdomâ; the latter reflected that there had since the early 1970s been over forty thousand terrorist shooting and bombing incidents in Northern Ireland alone leaving over thirty-five thousand people injured.
As to whether the absence of judicial control of extended detention was justified, the United Kingdom Government relied heavily on the need to withhold classified information from detainees and their legal advisers. In the Courtâs paraphrase,
⦠the Government had reluctantly concluded that, within the framework of the common-law system, it was not feasible to introduce a system which would be compatible with Article 5 § 3 but would not weaken the effectiveness of the response to the terrorist threat. Decisions to prolong detention were taken on the basis of information the nature and source of which could not be revealed to a suspect or his legal adviser without risk to individuals assisting the police or the prospect of further valuable intelligence being lost. Moreover, involving the judiciary in the process of granting or approving extensions of detention created a real risk of undermining their independence as they would inevitably be seen as part of the investigation and prosecution process
- âwhich conclusion was supported by Government-commissioned reports submitted to Parliament each time the Act came up for renewal.358
The Court was prepared to accept the Governmentâs argument. In so doing, it made reference to the specific context of Northern Ireland, âwhere the judiciary [was] small and vulnerable to terrorist attacksâ, and that accordingly âpublic confidence in the independence of the judiciary [was] understandably a matter to which the Government [attached] great importanceâ.359
In addition, âbasic safeguards against abuseâ were available in the form of the common-law remedy of habeas corpus and access to a solicitor (after an initial period of detention of forty-eight hours â any denial of access to a solicitor beyond that was reviewable by the courts); and the operation of the legislation was kept under regular independent review. Further protection was offered by the entitlement of detainees to inform a relative or friend about their detention and to have access to a doctor.360
There remained some discussion as to whether the reference to âother obligations under international lawâ in Article 15 § 1 meant that a state of emergency must be âofficially proclaimedâ, that being a requirement set out in Article 4 of the International Covenant on Civil and Political Rights. For its part, the Court, while declining to give an interpretation of the terms âofficially proclaimedâ in Article 4 of the Covenant, declared itself satisfied with the statement made by the Secretary of State for the Home Department to the House of Commons explaining in detail the reasons underlying the Governmentâs decision to derogate and announcing that steps were being taken to give effect to that decision.361
4.5.1.5
The notice of derogation in issue in Brannigan and McBride was again put to the test in 2001. The applicant, Mr Marshall, had been arrested in February 1998. The situation was, in its essentials, identical to that in issue in Brannigan and McBride. The complaint, for our purposes, was essentially that the continued existence of the powers of detention resulting from the maintenance in force of the Prevention of Terrorism Act, which had been renewed each year since 1989, could no longer be justified with reference to Article 15 of the Convention.
After announcing its intention to apply Brannigan and McBride while noting that it âmust at the same time address with special vigilance the fact that almost nine years separate the prolonged administrative detention of the applicants Brannigan and McBride from that of [Mr Marshall]â, the Court held:
The Court does not agree with the applicantâs submission that the security situation in Northern Ireland at the time of his detention had improved to the point where it was no longer justified to refer to it as a public emergency âthreatening the life of the nationâ. It notes that the authorities continued to be confronted with the threat of terrorist violence notwithstanding a reduction in its incidence. It cannot but note that the weeks preceding the applicantâs detention were characterised by an outbreak of deadly violence. This of itself confirms that there had been no return to normality since the date of the Brannigan and McBride judgment such as to lead the Court to controvert the authoritiesâ assessment of the situation in the province in terms of the threats which organised violence posed for the life of the community and the search for a peaceful settlement. It recalls in this connection that by reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle better placed than the international judge to decide both on the presence of such an emergency and on the nature and scope of the derogation necessary to avoid it (â¦).
As to the decision to prolong the applicantâs detention in the absence of judicial intervention, the Court observes that the Government rely on the same justifications for this measure which they advanced in the Brannigan and McBride case. Those justifications were accepted by the Court in that case on the basis that it was not its role to substitute its view as to what measures were most appropriate or expedient at the relevant time in dealing with an emergency situation for that of the Government which have direct responsibility for establishing the balance between the taking of effective measures to combat terrorism on the one hand, and respecting individual rights on the other. â¦
Going on to find that the reasoning on which Brannigan and McBride had been decided remained pertinent, the Court declared the application inadmissible.362
In actual fact, by the time the Court gave its decision in this case the United Kingdom Government had withdrawn their notice of derogation. They had done so on 19 February 2001, with effect from 26 February 2001.
The Court adopted its decision on 10 July 2001, two months and one day before the attacks of 9/11 which changed the worldâs conception of terrorism completely.
4.5.1.6
The case of Aksoy v. Turkey is generally remembered as the first in which the Court reached a finding that treatment contrary to Article 3 of the Convention amounted to âtortureâ. Tortured Zeki Aksoy certainly was, but what is more is that this this happened during a fourteen-day stretch of detention without his being brought before a magistrate.
Turkey too had derogated under Article 15 at the time.363 The legislative measure relevant to Article 5 of the Convention read as follows:
The Governor of the state of emergency region can order persons who continuously violate the general security and public order, to settle at a place to be specified by the Minister of the Interior outside the state of emergency region for a period which shall not exceed the duration of the state of emergency â¦364
The Court was willing to accept that âthe particular extent and impact of PKK terrorist activity in South-East Turkey [had] undoubtedly created, in the region concerned, a âpublic emergency threatening the life of the nationââ.365 It did not, however, accept that the measures taken were âstrictly required by the exigencies of the situationâ, and moreover found that even the most basic safeguards were lacking:
77. In the Brannigan and McBride judgment (â¦), the Court held that the United Kingdom Government had not exceeded their margin of appreciation by derogating from their obligations under Article 5 of the Convention to the extent that individuals suspected of terrorist offences were allowed to be held for up to seven days without judicial control.
In the instant case, the applicant was detained for at least fourteen days without being brought before a judge or other officer. The Government have sought to justify this measure by reference to the particular demands of police investigations in a geographically vast area faced with a terrorist organisation receiving outside support (â¦).
78. Although the Court is of the view â which it has expressed on several occasions in the past (see, for example, the ⦠Brogan and Others judgment) â that the investigation of terrorist offences undoubtedly presents the authorities with special problems, it cannot accept that it is necessary to hold a suspect for fourteen days without judicial intervention. This period is exceptionally long, and left the applicant vulnerable not only to arbitrary interference with his right to liberty but also to torture (â¦). Moreover, the Government have not adduced any detailed reasons before the Court as to why the fight against terrorism in South-East Turkey rendered judicial intervention impracticable.â366
4.5.1.7
In Sakık and Others the Turkish Government sought to rely on the same derogation in respect of the trial and detention of a number of former members of the Grand National Assembly found to be of a separatist bent. However, the trial and detention having taken place in Ankara not in the South-Eastern Anatolian provinces covered by the derogation, the derogation could not apply.367 This judgment demonstrates that the scope and extent of a derogation under Article 15 is limited by the terms in which it has been couched in the notice to the Secretary General of the Council of Europe.368
4.5.1.8
As we have seen, the United Kingdom was the only State party to the Convention to derogate from the Convention under Article 15 in the aftermath of the 9/11 attacks on the United States. In its relevant parts, the notice of derogation lodged with the Secretary General of the Council of Europe on 18 December 2001 read as follows:369
Public emergency in the United Kingdom
The terrorist attacks in New York, Washington, D.C. and Pennsylvania on 11 September 2001 resulted in several thousand deaths, including many British victims and others from seventy different countries. In its Resolutions 1368 (2001) and 1373 (2001), the United Nations Security Council recognised the attacks as a threat to international peace and security.
The threat from international terrorism is a continuing one. In its Resolution 1373 (2001), the Security Council, acting under Chapter VII of the United Nations Charter, required all States to take measures to prevent the commission of terrorist attacks, including by denying safe haven to those who finance, plan, support or commit terrorist attacks.
There exists a terrorist threat to the United Kingdom from persons suspected of involvement in international terrorism. In particular, there are foreign nationals present in the United Kingdom who are suspected of being concerned in the commission, preparation or instigation of acts of international terrorism, of being members of organisations or groups which are so concerned or of having links with members of such organisations or groups, and who are a threat to the national security of the United Kingdom.
As a result, a public emergency, within the meaning of Article 15 § 1 of the Convention, exists in the United Kingdom.
and
Article 5 § 1 ( f ) of the Convention
It is well established that Article 5 § 1 (f) permits the detention of a person with a view to deportation only in circumstances where âaction is being taken with a view to deportationâ (Chahal v. the United Kingdom (1996) 23 EHRR 413 at paragraph 112). In that case the European Court of Human Rights indicated that detention will cease to be permissible under Article 5 § 1 (f) if deportation proceedings are not prosecuted with due diligence and that it was necessary in such cases to determine whether the duration of the deportation proceedings was excessive (paragraph 113).
In some cases, where the intention remains to remove or deport a person on national security grounds, continued detention may not be consistent with Article 5 § 1 (f) as interpreted by the Court in the Chahal case. This may be the case, for example, if the person has established that removal to their own country might result in treatment contrary to Article 3 of the Convention. In such circumstances, irrespective of the gravity of the threat to national security posed by the person concerned, it is well established that Article 3 prevents removal or deportation to a place where there is a real risk that the person will suffer treatment contrary to that Article. If no alternative destination is immediately available then removal or deportation may not, for the time being, be possible even though the ultimate intention remains to remove or deport the person once satisfactory arrangements can be made. In addition, it may not be possible to prosecute the person for a criminal offence given the strict rules on the admissibility of evidence in the criminal justice system of the United Kingdom and the high standard of proof required.
Derogation under Article 15 of the Convention
The Government has considered whether the exercise of the extended power to detain contained in the Anti-terrorism, Crime and Security Act 2001 may be inconsistent with the obligations under Article 5 § 1 of the Convention. As indicated above, there may be cases where, notwithstanding a continuing intention to remove or deport a person who is being detained, it is not possible to say that âaction is being taken with a view to deportationâ within the meaning of Article 5 § 1 (f) as interpreted by the Court in the Chahal case. To the extent, therefore, that the exercise of the extended power may be inconsistent with the United Kingdomâs obligations under Article 5 § 1, the Government has decided to avail itself of the right of derogation conferred by Article 15 § 1 of the Convention and will continue to do so until further notice.
British immigration law, like the immigration laws of other countries, provided for the detention of non-nationals pending deportation. However, detention was not permissible under the ordinary law where deportation was known to be impossible, whether because there was no country willing to take the person in question or because there would be a risk of torture or other serious ill-treatment to the proposed deportee in his or her country of origin â and accordingly, as in Chahal,370 a prospective violation of Article 3 of the Convention.371
The legislation enacted in derogation of the ordinary law provided that a âsuspected international terroristâ might be detained despite the fact that his removal or departure from the United Kingdom was prevented by âa point of law which wholly or partly relates to an international agreementâ â such as, presumably, the assessment that the personâs removal would be in violation of Article 3 of the Convention â or âa practical considerationâ.372 It is implicit that persons detained under this legislation could obtain release if they left of their own accord for another country â as indeed several of the applicants later did.
From the outset, both the legislation and the derogation were criticised within the United Kingdom and internationally. A Review Committee consisting of Privy Councillors (the âNewton Committeeâ, after its chairman) pointed out that a considerable proportion of terrorist suspects had been British citizens, which justified doubts as to both the principle and the efficacy of a measure aimed solely at foreign nationals.373 Similar concerns were voiced by a British Joint Parliamentary Committee on Human Rights.374 Outside the United Kingdom, the European Commissioner for Human Rights queried the need for derogating from the Convention at all, pointing out that no other European State â not even States âlong faced with recurring terrorist activityâ â had found such a course needful.375 He also observed that deporting suspected terrorists
- âor allowing them to leave of their own volition â left them âat liberty to plan and pursue, albeit at some distance from the United Kingdom, activity potentially prejudicial to its public securityâ.376 The United Nations Committee on the Elimination of All Forms of Racial Discrimination was concerned that the measures provided for discriminated against non-nationals.377
In the light of such forceful criticism, it could have been no surprise to the Government of the United Kingdom that their derogating measures were challenged both in the English courts and in Strasbourg.
Of the eleven applicants in A and Others v. the United Kingdom one was stateless (he had been born in a Palestinian refugee camp); the others were of various nationalities, all of states in North Africa and the Middle East. All were identified by the Secretary of State for the Home Department as âsuspected international terroristsâ and made subject to deportation orders. All were accordingly placed in detention ostensibly for the purpose of deportation.
The applicants appealed, first to the Special Immigration Appeals Commission (SIAC), then to the Court of Appeal. Ultimately they were granted leave to appeal to the House of Lords.378
SIAC and the Court of Appeal both found it established that the terrorist threat identified constituted a âpublic emergency threatening the life of the nationâ. They differed, however, in their views of whether the legislation enacted in derogation of ordinary immigration law was âstrictly required by the exigencies of the situationâ. SIAC found it to discriminate unjustifiably against foreign nationals, in violation of Article 14 of the Convention. The Court of Appeal took the contrary view: it found that British nationals suspected of being terrorists were not an analogous situation to foreign nationals who could not be deported because to do so would place them in danger, the latter having no right to remain in the country but merely a right not to be removed for their own safety.
The House of Lords, by eight to one, accepted the assessment that there was a âpublic emergency threatening the life of the nationâ. It found this to be based on the very real threat posed by the presence of a âsignificant bodyâ of foreign nationals in the United Kingdom who had the will and the capability of mounting coordinated attacks such as those the world had just witnessed in the United States. The lone dissenter, Lord Hoffmann, accepted that there was credible evidence of a threat of serious terrorist attack within the United Kingdom but considered that it would not destroy the life of the nation, since the threat was not so fundamental as to threaten, in his words, âour institutions of government or our existence as a civil communityâ. He concluded that âthe real threat to the life of the nation ⦠[came] not from terrorism but from laws such as theseâ.379
In broad agreement with SIAC but differing from the Court of Appeal, the House of Lords nonetheless held that the legislation in issue did not satisfy the requirements of Article 15 § 1. To begin with, the Law Lords found on three principal grounds that it was not a proportional response: firstly, in that the detention scheme applied only to non-nationals suspected of international terrorism and did not address the threat which came from United Kingdom nationals who were also so suspected; secondly, in that it left suspected international terrorists at liberty to leave the United Kingdom and continue their threatening activities abroad (perhaps in a country âas close as Franceâ); and thirdly, in that the legislation was drafted too broadly, so that it could, in principle, apply to individuals suspected of involvement with international terrorist organisations which did not fall within the scope of the derogation.380
In addition, they found that the legislation in issue was discriminatory and inconsistent with Article 14 of the Convention, from which there had been no derogation. The applicants were in a comparable situation to United Kingdom nationals suspected of being international terrorists, with whom they shared the characteristics of being irremovable from the United Kingdom and being considered a threat to national security. Since the detention scheme was aimed primarily at the protection of the United Kingdom from terrorist attack, rather than immigration control, there was no objective reason to treat the applicants differently on grounds of their nationality or immigration status.381 The House of Lords gave a declaration under section 4 of the Human Rights Act of 1998 that the legislation in issue â Section 23 of the Anti-terrorism, Crime and Security Act 2001 â was incompatible with the Convention in so far as it was disproportionate and permitted discriminatory detention of suspected international terrorists.382 This did not, however, avail the applicants, such declarations being neither binding on the parties to the proceedings in which they are made nor capable of affecting the validity, continuing operation or enforcement of the provision in respect of which they are given.383 Thus it was that the case was able to reach the Court in Strasbourg.
Among the wider issues raised â which included complaints under Articles 3 and 13 (in respect of which no violation was found)384 â that which interests us is the way the Court dealt with the applicantsâ detention and the Governmentâs derogating measures.
Most unusually, the Government found themselves in disagreement with the highest judicial authority of their own State and the applicants submitted preliminary objections calling into question the Governmentâs right to challenge the House of Lordâs findings. This situation is, to date, unique in the case-law of the Court. This, however, was neither a case of a Government taking a position inconsistent with that which they had defended at the domestic level385 nor one of estoppel; nor, more generally, was there âany prohibition on a Government making such a challenge, particularly if they [considered] that the national Supreme Courtâs ruling is problematic under the Convention and that further guidance is required from the Courtâ. Moreover, since the Lordsâ declaration of incompatibility with the Human Rights Act 1998 had not had the effect of making it unnecessary for the applicants to lodge their application, there was no reason in principle why the Court should not consider the case in its entirety, which meant that the Government should not now be prevented from raising all arguments open to them to defend their position.386
The Court had first to consider whether the detention of the applicants was in accordance with Article 5 § 1 (f) of the Convention. In accordance with existing case-law, this involved examining the question whether action was actually being taken against the applicants with a view to their deportation.387 As regards two of the applicants, it found that there actually had been: in a matter of no more than a few months, one had left for Morocco, the other for France.388 In the cases of the others, however, the Court found that their deportation was not being actively pursued: instead, it was clear from the terms of the derogation notice and the legislation in issue that their detention was based on the suspicion that they were âinternational terroristsâ and the belief that their presence in the United Kingdom gave rise to a threat to national security. Dismissing the Governmentâs argument that a balance should be struck between the individualâs right to liberty and the Stateâs interest in protecting its population from terrorist threat, it reiterated that Articles 5 § 1 (a) â (f) amounted to an âexhaustive list of exceptions and that only a narrow interpretation of these exceptions was compatible with the aims of Article 5â. If detention did not âfit within the confines of the subparagraphs as interpreted by the Court, it could not be made to fit by an appeal to the need to balance the interests of the State against those of the detaineeâ. Referring to earlier findings in Lawless and Ireland v. the United Kingdom to the effect that âinternment and preventive detention without chargeâ were incompatible with Article 5 § 1 absent a valid derogation under Article 15, the Court then had to consider the validity of the derogation.389
In considering whether there was a âpublic emergency threatening the life of the nationâ, the Court was once again willing to grant the domestic authorities a wide margin of appreciation. In the words of the Court:
177. Before the domestic courts, the Secretary of State adduced evidence to show the existence of a threat of serious terrorist attacks planned against the United Kingdom. Additional closed evidence was adduced before SIAC. All the national judges accepted that the danger was credible (with the exception of Lord Hoffmann, who did not consider that it was of a nature to constitute âa threat to the life of the nationâ â¦). Although when the derogation was made no al-Qaeda attack had taken place within the territory of the United Kingdom, the Court does not consider that the national authorities can be criticised, in the light of the evidence available to them at the time, for fearing that such an attack was âimminentâ, in that an atrocity might be committed without warning at any time. The requirement of imminence cannot be interpreted so narrowly as to require a State to wait for disaster to strike before taking measures to deal with it. Moreover, the danger of a terrorist attack was, tragically, shown by the bombings and attempted bombings in London in July 2005 to have been very real. Since the purpose of Article 15 is to permit States to take derogating measures to protect their populations from future risks, the existence of the threat to the life of the nation must be assessed primarily with reference to those facts which were known at the time of the derogation. The Court is not precluded, however, from having regard to information which comes to light subsequently (see, mutatis mutandis, Vilvarajah and Others v. the United Kingdom, 30 October 1991, § 107(2), Series A no. 215).
â¦
180. As previously stated, the national authorities enjoy a wide margin of appreciation under Article 15 in assessing whether the life of their nation is threatened by a public emergency. While it is striking that the United Kingdom was the only Convention State to have lodged a derogation in response to the danger from al-Qaeda, although other States were also the subject of threats, the Court accepts that it was for each Government, as the guardian of their own peopleâs safety, to make their own assessment on the basis of the facts known to them. Weight must, therefore, attach to the judgment of the United Kingdomâs executive and Parliament on this question. In addition, significant weight must be accorded to the views of the national courts, which were better placed to assess the evidence relating to the existence of an emergency.390
The Court accordingly endorsed the view of the House of Lords that there had been a âpublic emergency threatening the life of the nationâ within the meaning of Article 15 § 1.
This meant that the Court had to address the question whether the measures taken against the applicants had been strictly required by the exigencies of the situation â the precise question on which the Government had found itself at variance with the House of Lords.
At the outset, the Court took the view that:
⦠it should in principle follow the judgment of the House of Lords on the question of the proportionality of the applicantsâ detention, unless it can be shown that the national court misinterpreted the Convention or the Courtâs case-law or reached a conclusion which was manifestly unreasonable.391
Dismissing the Governmentâs suggestion that the House of Lords should have left it greater latitude, the Court held:
As the House of Lords held, the question of proportionality is ultimately a judicial decision, particularly in a case such as the present where the applicants were deprived of their fundamental right to liberty over a long period of time. In any event, having regard to the careful way in which the House of Lords approached the issues, it cannot be said that inadequate weight was given to the views of the executive or of Parliament.392
Further endorsing the House of Lordsâ use of its powers to give a general decision on the application of Article 15, the Court held:
The Court, however, considers that the House of Lords was correct in holding that the impugned powers were not to be seen as immigration measures, where a distinction between nationals and non-nationals would be legitimate, but instead as concerned with national security. Part 4 of the 2001 Act was designed to avert a real and imminent threat of terrorist attack which, on the evidence, was posed by both nationals and non-nationals. The choice by the Government and Parliament of an immigration measure to address what was essentially a security issue had the result of failing adequately to address the problem, while imposing a disproportionate and discriminatory burden of indefinite detention on one group of suspected terrorists. As the House of Lords found, there was no significant difference in the potential adverse impact of detention without charge on a national or on a non-national who in practice could not leave the country because of fear of torture abroad.
Finally, and dismissing for lack of evidence the suggestion that British Muslims were âsignificantly more likely to react negatively to the detention without charge of national rather than foreign Muslims reasonably suspected of links to al-Qaedaâ and that foreign nationals posed a significantly greater threat to national security than United Kingdom nationals, the Court, like the House of Lords, found that the derogating measures were âdisproportionate in that they discriminated unjustifiably between nationals and non-nationals.â From this it followed that there had been a violation of Article 5 § 1 in respect of the applicants affected.393
4.5.1.9
During the night of 15 to 16 July 2016 a group of members of the Turkish armed forces attempted a coup dâétat. Although the attempt was unsuccessful, more than 300 people were killed and more than 2,500 were injured.
In the wake of the coup attempt, on 20 July 2016 the Turkish Government declared a state of emergency for a period of three months as from 21 July 2016; the state of emergency was subsequently extended for further periods until it was finally terminated in 2018.394
On 21 July 2016 the Permanent Representative of Turkey to the Council of Europe sent the Secretary General of the Council of Europe the following notice of derogation:
I communicate the following notice of the Government of the Republic of Turkey.
On 15 July 2016, a large-scale coup attempt was staged in the Republic of Turkey to overthrow the democratically-elected government and the constitutional order. This despicable attempt was foiled by the Turkish state and people acting in unity and solidarity. The coup attempt and its aftermath together with other terrorist acts have posed severe dangers to public security and order, amounting to a threat to the life of the nation in the meaning of Article 15 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
The Republic of Turkey is taking the required measures as prescribed by law, in line with the national legislation and its international obligations. In this context, on 20 July 2016, the Government of the Republic of Turkey declared a State of Emergency for a duration of three months, in accordance with the Constitution (Article 120) and the Law No. 2935 on State of Emergency (Article 3/1b). ⦠The decision was published in the Official Gazette and approved by the Turkish Grand National Assembly on 21 July 2016. Thus, the State of Emergency takes effect as from this date. In this process, measures taken may involve derogation from the obligations under the Convention for the Protection of Human Rights and Fundamental Freedoms, permissible in Article 15 of the Convention. I would therefore underline that this letter constitutes information for the purposes of Article 15 of the Convention. The Government of the Republic of Turkey shall keep you, Secretary General, fully informed of the measures taken to this effect. The Government shall inform you when the measures have ceased to operate. 395
The applicants in these two cases were journalists with a record of public criticism of the serving government. Both were arrested as suspected members of FETÃ/PDY (âGülenist Terror Organisation/Parallel State Structureâ), which was stated by the national authorities to be a terrorist organisation led by Fetullah Gülen, a Turkish citizen living in the USA, to which organisation the coup attempt was imputed. Both were placed in detention. Both were charged with trying to overthrow the constitutional order. Mehmet Hasan Altan was sentenced at first instance to âaggravated life imprisonmentâ. Criminal proceedings remain ongoing against both applicants at the time of writing.
Both applicants applied to the Turkish Constitutional Court for their release. On 11 January 2018 the Constitutional Court gave judgment in both applicantsâ cases holding that ââstrong evidence that an offence had been committedâ had not been sufficiently establishedâ; there had accordingly been violations of the right to liberty and security and the right to freedom of expression and of the press. The judgments were transmitted to the trial courts in order that they take âthe necessary actionâ. The applicantsâ counsel applied to those courts for the applicantsâ release the same day. However, the trial courts, in open defiance of the Constitutional Court, decided that the applicantsâ detention on remand should continue.
The Government submitted, and the Court accepted, that the coup attempt and its immediate aftermath had constituted a âpublic emergency threatening the life of the nationâ; so indeed had the Constitutional Court, and the applicants had not suggested otherwise.396
The Court noted that the Turkish Constitutional Court formed an integral part of the judiciary within the constitutional structure of Turkey and that it played an important role in protecting the right to liberty and security under the Turkish Constitution and Article 5 of the Convention by offering an effective remedy to individuals detained during criminal proceedings. On that basis, the Court found that the refusal of the courts below to order the applicantsâ release was arbitrary, and therefore in violation of Article 5 of the Convention:
For another court to call into question the powers conferred on a constitutional court to give final and binding judgments on individual applications runs counter to the fundamental principles of the rule of law and legal certainty. The Court reiterates that these principles, inherent in the protection afforded by Article 5 of the Convention, are the cornerstones of the guarantees against arbitrariness (â¦). Although the Constitutional Court transmitted its judgment to the Assize Court so that it could take âthe necessary actionâ, the Assize Court resisted the Constitutional Court by refusing to release the applicant, with the result that the violation found by the Constitutional Court was not redressed.397
Echoing the finding of the Turkish Constitutional Court, the Court went on to hold âthat a measure of pre-trial detention that [was] not âlawfulâ and [had] not been effected âin accordance with a procedure prescribed by lawâ on account of the lack of reasonable suspicion [could not] be said to have been strictly required by the exigencies of the situationâ; the same applied to the concomitant interference with freedom of expression.398
However, no violation of Article 5 § 4 was found in respect of the duration of the appeals before the Constitutional Court: fourteen months and three days in the case of Mehmet Hasan Altan, sixteen months and three days in the case of Åahin Alpay. The Court accepted that the applicantsâ cases were among the first of a series of cases raising new and complicated issues concerning the right to liberty and security and freedom of expression under the state of emergency following the attempted military coup. Moreover, bearing in mind the Constitutional Courtâs case-load following the declaration of a state of emergency, the Court accepted that this was an exceptional situation. Although proceedings as protracted as these âcould not be described as âspeedyâ in an ordinary contextâ, in the âspecific circumstances of the [cases]â they were nonetheless acceptable.399
4.6
The concept of âpublic emergency threatening the life of the nationâ is of necessity more vague than that of âwarâ. In a report which it published in 2006, the Venice Commission, referring to the Commissionâs decision in the âGreek Caseâ and to the Courtâs Lawless judgment, summarised the characteristics of such an emergency as follows:
- (1)It [i.e. the emergency] must be actual or imminent;
- (2)Its effects must involve the whole nation;
- (3)The continuance of the organised life of the community must be threatened;
- (4)The crisis or danger must be exceptional, in that the normal measures or restrictions, permitted by the Convention for the maintenance of public safety, health and order, are plainly inadequate. In 1961 the ECtHR stressed that there must be a âthreat to the organised life of the communityâ.400
Thus far, in the cases that have reached the Commission and the Court, such an emergency has been found to exist when an organised armed group arose with the aim of overthrowing and replacing, at least locally, the existing governmental structures of the Convention State concerned and whose actions reflected both the will and the ability to use force effectively in the process. Such situations, of course, come close to a non-international armed conflict or may develop into one if left unchecked.
One might imagine âthe life of the nationâ being threatened by hostile action that need not necessarily involve any direct danger to the Stateâs control over its land territory. For example, many if not most European countries would be crippled by sustained interference with shipping, air traffic or energy supply, or even by action directed against the countryâs communications (in the form, perhaps, of sustained cyber-attacks).401
We have seen that the Court is prepared to leave the State a wide margin of appreciation in deciding on the need for derogation â indeed, the concept of âmargin of appreciationâ was first developed in that precise context,402 and it has been observed that âthis is the area in Convention law where the margin is at its widestâ.403
There would therefore be nothing to prevent the Court from accepting the existence of an âemergency threatening the life of the nationâ if the crisis were caused not by a conflict but by a natural disaster, uncontrollable immigration (or emigration), an epidemic or even an economic or monetary crisis that proves beyond the capacity of government to contain by ordinary means.404 The existence of such an emergency requiring derogating measures might also be found to exist in a particularly chaotic post-war situation, to which the expression âwarâ would no longer be appropriate.
While the effects of the emergency situation must involve the whole nation, it is not a requirement that the emergency itself cover the entire territory of the State. The Court has accepted the existence of emergencies affecting only the six counties of Northern Ireland and certain named provinces in south-eastern Turkey.405 However, as we have seen, it would fly in the face of the purpose of Article 15 to allow the Contracting State to make use of derogating measures outside the territory covered by the derogation.406
There is no temporal limit to the validity of a derogation. As the Court expressed it in A. and Others:
While the United Nations Human Rights Committee has observed that measures derogating from the provisions of the International Covenant on Civil and Political Rights must be of ââan exceptional and temporary natureâ (â¦),407the Courtâs case-law has never, to date, explicitly incorporated the requirement that the emergency be temporary, although the question of the proportionality of the response may be linked to the duration of the emergency. Indeed, the cases cited above,408 relating to the security situation in Northern Ireland, demonstrate that it is possible for a âpublic emergencyâ within the meaning of Article 15 to continue for many years.
Ronald St. John Macdonald, a long-serving judge in the Old Court, points out that an interpretation of the concept of emergency wide enough to include economic crises carries certain dangers in that it might be abused, for example, to justify the introduction of repressive measures inimical to civil and political rights. The example he gives is forced labour.409 He is, of course, right; but whatever the nature of the emergency, the Court â and presumably the domestic courts410 â would not be precluded from considering the validity of any such derogation in terms of whether the measures taken are strictly required by the exigencies of the situation.
Macdonald suggests an additional test in that the State must be found to be acting in good faith. Citing another author, he suggests âdistrust of the motivations of the Greek military government and revulsion against its anti-democratic characterâ as the real explanation (or at least part of it) for the Commissionâs refusal to accept the Greek Governmentâs derogation in the âGreek Caseâ. Indeed, as he puts it,
[t]he Convention is founded on a commitment to preserve and strengthen democratic systems of government. A state of emergency declared not to further democracy, but to destroy or repress it, would be invalid under article 15. Such a condition is explicit in article 17, which provides that no state may âperform any act aimed at the destruction of any of the rights and freedoms set forth [in the Convention]â.411
This view is certainly correct.
The United Kingdom withdrew the derogation of 18 December 2001 with effect from 14 March 2005. Only four months later, on 7 and 21 July 2005, Muslim terrorists launched attacks on the public transport system of London; the first succeeded, the second did not. As well it might, the Court took these attacks as proof that the terrorist threat had at all relevant times been real.412
Nonetheless, at the present remove an observer cannot help noting that despite the two attacks of July 2005, and despite further terrorist incidents including the car bomb attack on Glasgow International Airport in 2007, the murder of a soldier in broad daylight in the streets of Woolwich in 2013, a stabbing at a tube station in Londonâs East End in December 2015, a suicide bomb attack on visitors of a pop concert in Manchester in May 2017, and in March and June 2017, two attacks carried out in central London using vehicles to attack pedestrians, for the vast majority of the British population â who were neither perpetrators nor victims of the actual attacks themselves â normal life continued much as it had done, as did the business of Government and the law. While it can accordingly be accepted that on any reasonable view there was a threat of terrorist attack in the early years of the present century, we cannot of course know whether the use of the powers granted the Government by Part 4 of the Anti-terrorism, Crime and Security Act 2001 were effective to prevent such an attack while the grant remained in force. More to the point, neither do we know what terrorist attacks may have been prevented, both before and after withdrawal of the notice of derogation on 14 March 2005, by ordinary police work, or by the use of methods that have yet to be considered under the Convention but are not the object of any derogation. All that can be said with the knowledge we have is that, in retrospect, Lord Hoffmann â no friend of the Court he, but no enemy of freedom either â may well have had a point worth pondering in doubting the existence of a genuine threat to âthe life of the nationâ.413
Absent any suggestion of bad faith, the Courtâs willingness to accept the assessment of the domestic authorities comes close to complete deference, as the A. and Others judgment shows.
This apparent passivity has been criticised by academics. Thus, Oren Gross and Fionnuala Nà Aoláin argue that the Court is better placed than domestic authorities to consider the need for derogating measures, not worse:
⦠it may well be that the supranational Court, detached and further removed from the immediate turmoil, reviewing the relevant issues post facto rather than at the time of their occurrence, is able to judge matters more clearly and more accurately.414
Criticism of the Courtâs deferential attitude has also come from within the Court itself. In his dissenting opinion in Brannigan and McBride, Judge Martens, expressing agreement on this point with arguments submitted by amici curiae Amnesty International, Liberty, Interights and the Committee on the Administration of Justice, put it as follows:
Inevitably, in this context, a certain margin of appreciation should be left to the national authorities. There is, however, no justification for leaving them a wide margin of appreciation because the Court, being the âlast-resortâ protector of the fundamental rights and freedoms guaranteed under the Convention, is called upon to strictly scrutinise every derogation by a High Contracting Party from its obligations.415
While it is undoubtedly true that an urgent need to stave off disaster may arise on the spur of the moment, as time goes on the executive arm of Government may continue to restrict human rights â and limit judicial and even legislative scrutiny of its choices â based on a state of âemergencyâ that no longer so justifies. There is force in the suggestion, made by Gross and Nà Aoláin already in 2001, that â[a] governmentâs attempt to justify or excuse a perceived violation of human rights in terms of exigency and derogation ought to be treated as a suspect classification that calls for a stricter scrutiny of the governmentâs caseâ.416
For the present, however, the Court seems disinclined to alter its position. The Turkish notice of derogation lodged on 21 July 2016, quoted above in the context of the Mehmet Hasan Altan and Åahin Alpay judgments,417 refers only to the âcoup attempt and its aftermathâ which âtogether with other terrorist acts have posed severe dangers to public security and order, amounting to a threat to the life of the nationâ. While there can hardly be any dispute about the finding that the coup attempt itself threatened âthe life of the nationâ, it is arguably not self-evident that such a threat persisted during its aftermath â and the notice of derogation was sent to the Secretary General several days after the coup attempt had been well and truly crushed. One might also question whether the acts in issue could properly be called âterroristâ: since the aim of the coup attempt seems to have been the direct overthrow of President ErdoÄan and the incumbent Government themselves, it is not immediately obvious that the acts in issue, unlawful though they undoubtedly were, fit our working definition of âterrorismâ as being âcriminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposesâ.418 Nevertheless, in the two judgments, which were handed down nearly two years later, the Court does not question the position of the Turkish Government: it is worth noting however that the applicants do not seem to have argued either point and the Chamber has confined itself to taking note of their silence.419
4.7
Even though the situation may be dire to the point of admitting of derogation from the Convention, there are rights from which no derogation is permitted in any circumstances.
Article 15 § 2 sets out the following: the right to life (Article 2), except in respect of deaths resulting from âlawful acts of warâ (a concept which we will briefly explore); the prohibition of torture (Article 3); the prohibition of slavery or servitude (Article 4 § 1); and the principle nulla poena sine lege (Article 7). Additional non-derogable rights created subsequently include the prohibition of the death penalty (Article 3 of Protocol No. 6 and Article 2 of Protocol No. 13) and the right not to be tried or punished twice (Article 4 of Protocol No. 7).
4.7.1
Article 2 protects the right to life. It provides in its first paragraph that no one shall be deprived of his life intentionally except consequent on a lawful sentence of death handed down by a court.420 Other than that, deprivation of life is not to be regarded as contrary to that Article
when it results from the use of force which is no more than absolutely necessary:
- (a)in defence of any person from unlawful violence;
- (b)in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
- (c)in action lawfully taken for the purpose of quelling a riot or insurrection.421
There is no mention of deaths occurring in an international or non-international armed conflict. Article 2 was written for, and fits, a law-enforcement paradigm exclusively. In this it differs from Article 6 § 1 of the International Covenant on Civil and Political Rights, Article 4 § 1 of the American Convention on Human Rights and Article 4, third sentence, of the African Charter on Human and Peopleâs Rights, all of which provide that no one shall be âarbitrarilyâ deprived of their life â an expression that admits of far broader interpretation.422 It is therefore entirely conceivable that killing a combatant during an international armed conflict in accordance with international humanitarian law might have to be found in violation of Article 2 of the Convention423 â a position that Colonel Abbot, whom we encountered above,424 has labelled âabsurdâ.425 No doubt many others would agree with him.426
In its second paragraph, however, Article 15 lists Article 2 as non-derogable âexcept in respect of deaths resulting from lawful acts of warâ. This means that the meaning of the expression âwarâ is relevant not only to the applicability of Article 15 as a whole, but also to the interpretation of the specific right guaranteed by Article 2.
It is likely that the drafters of this provision were concerned with ius in bello: a death resulting from a lawful act committed in a lawful war would be covered by the derogation but a death resulting from an unlawful act surely would not. One obvious consequence would be that the procedural obligations immanent in Article 2427 could be derogated from in the former case but not in the latter: the duty to investigate and, if necessary, prosecute deaths resulting from unlawful acts would continue to flow from Article 2.428 It is probably a mistake to understand the expression âwarâ in this context as referring to international armed conflicts only, as has been suggested.429 Already for purposes of Article 15 § 1 we have defined our understanding of that expression so as to include an armed conflict not of an international character between a State and a non-State organised armed group but reaching the minimum intensity needed to trigger the applicability of international humanitarian law; there is no good reason not to do so for purposes of Article 15 § 2 as well.
It is tempting to include ius ad bellum in the definition of âlawful acts of warâ: on this view, deaths resulting from acts committed in an unlawful war would ipso iure be excluded from the protection of the derogation. Admittedly such an interpretation sits well with the âprofound belief in those fundamental freedoms which are the foundation of justice and peace in the worldâ.430 It does not, however, accord with the actual text of Article 15 § 2 of the Convention: the French text, arguably less ambiguous than the English version, has âactes licites de guerreâ â which renders more accurately, if more cumbersomely, as âlegally permitted acts of warâ.431
All agree that under the law of armed conflict, in international armed conflict at least, combatants are liable to lethal attack at any time without warning.432 Under human rights law, in principle, no one is and the status of combatant does not exist. It is submitted, accordingly, that the expression âlawful acts of warâ should be interpreted as meaning that the legality of the taking of life is governed by international humanitarian law.433
The use of the expression âwarâ must not necessarily be understood in the same sense for the first paragraph of Article 15 and for the second. For one thing, it is difficult to see how the procedural requirements of Article 2 â that is the duty officially to investigate a death and, if appropriate, prosecute its author434 â could apply to every single death occasioned in a war of doubtful legality by hostile action that was, from an operational perspective, legitimate: such a view would place the individual serviceman in the impossible position of having to question the political decision to go to war before obeying an order given by his lawful superior. Different considerations may well govern the right to derogate per se. Admittedly this leaves us with the non sequitur of a death sanctioned by Article 15 § 2 occurring in a war not meeting the requirements of Article 15 § 1; but the distinction will be dictated by the stark reality of the situation.
Absent a genuine state of war, there is no getting away from Article 2. This has been rightly noted in the United Kingdom by the Joint Committee on Human Rights of the House of Lords and the House of Commons:
We note that any future derogation from the ECHR will not affect the Governmentâs policy in relation to the use of lethal force abroad outside of armed conflict. Derogation from the right to life in Article 2 ECHR is only possible in relation to âdeaths resulting from lawful acts of warâ. States can therefore choose to be bound by the more permissive rules of the Law of War, rather than the more restrictive rules of human rights law, in times of war or public emergency. However, the Government will not be able to derogate from the right to life in Article 2 where it uses lethal force abroad outside of armed conflict: such deaths will not be the result of âacts of warâ because by definition they will have taken place outside armed conflict. The right to life in Article 2 ECHR therefore inescapably applies to uses of lethal force abroad outside of armed conflict.435
It is submitted that it is not inconceivable that human rights law â even Article 2 of the Convention outside the strict confines of âlegitimate acts of warâ436 â might admit of targeted killing without warning (a drone strike for example),437 but the justification offered would surely have to be the most persuasive imaginable.438 Otherwise, it has been suggested that a targeted killing might be brought within the scope of an armed conflict if a nexus between the two could be shown439 â which might allow the Contracting State to avail itself of Article 15 of the Convention.
4.7.2
Article 3 of the Convention prohibits torture and inhuman or degrading treatment or punishment in absolute terms. As the Court was careful to point out in Ireland v. the United Kingdom, âthere can be no derogation therefrom even in the event of a public emergency threatening the life of the nationâ440 â nor even, we would add, in the event of war.
For present purposes, one obvious corollary of the non-derogability of Article 3 is that resorting to torture or, for that matter, the use of force short of torture in interrogating prisoners, even enemy agents or spies, is not permissible however grave the situation and is likely to engage the responsibility of the Contracting State under the Convention. The same applies to the use of weapons or tactics that cause unnecessary human suffering. The standards to be applied under the Convention are free-standing and do not necessarily depend on the corresponding standards of the law of armed conflict, although the latter will be helpful in setting the threshold.441
4.7.3
Only the first paragraph of Article 4 is listed in Article 15 § 2. It provides that â[n]o one shall be held in slavery or servitudeâ. The Court has defined âslaveryâ in the terms of the 1926 Slavery Convention as âthe status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercisedâ,442 and âservitudeâ as âan obligation, under coercion, to provide oneâs servicesâ, the latter concept being linked with that of âslaveryâ.443
The second paragraph of Article 4 provides that â[n]o one shall be required to perform forced or compulsory labourâ. For âforced or compulsory labourâ to arise, the Court has held that there must be âsome physical or mental constraint, as well as some overriding of the personâs willâ.444
This paragraph is immediately qualified by the third paragraph of Article 4, which provides that certain duties that the State may impose shall not count as âforced or compulsory labourâ. These are duties which the State may impose in the absence of a âwar or other public emergency threatening the life of the nationâ. For the purposes of our discussions, the pertinent exceptions are âany service of a military characterâ (or âin case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military serviceâ) and âany service exacted in case of an emergency or calamity threatening the life or well-being of the communityâ.
No derogation under Article 15 is necessary for either of these exceptions to apply (nor indeed for the two other exceptions provided for by Article 4
§ 3, namely prison work and work or service which forms part of ânormal civic obligationsâ â e.g. service in a fire brigade445 or on a jury446).
As we have seen, an exception for service exacted instead of military service applies âin case of conscientious objectors in countries where they are recognisedâ (Article 4 § 3 (b)). On the face of it, this wording leaves it to the countries themselves whether to recognise conscientious objections to military service. However, in its Bayatyan judgment, the Court recognised a general right to claim exemption from military service provided that it be based on serious and convincing conscientious objections, as protected under Article 9 â the right to freedom of thought, conscience and religion.447 It remains to be seen whether such a right will survive actual war: the letter of the Convention does not prevent Contracting States from derogating from it under Article 15. Nevertheless, on any reasonable view, one would imagine so. To recognise a right of conscientious objection in peacetime but deny it in wartime would defeat its very purpose. It is submitted, therefore, that the Bayatyan judgment has created a new non-derogable right.
4.7.4
Article 7 â which enshrines the nulla poena sine lege principle â is listed in Article 15 § 2 as non-derogable. However, a derogating clause is contained in the very Article itself, in that its second paragraph states that it âshall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nationsâ.
The applicant in Korbely was an officer in the Hungarian army in 1956. During the uprising, he killed an insurgent; for this act, classed as a âcrime against humanityâ rather than common murder, he was put on trial in the 1990s. The Court found a violation of Article 7 in that the understanding of the expression âcrime against humanityâ in 1956 did not â at the time â encompass ordinary murder without the presence of additional elements, in particular that the crime âshould form part of âState action or policyâ or of a widespread and systematic attack on the civilian populationâ; it was therefore not enough to find, as the domestic courts had done, that the victim had come within the scope of protection of Common Article 3 of the Geneva Conventions.448
The second paragraph of Article 7 has its origins in an amendment to the provision later to congeal as Article 15 § 1 of the International Covenant on Civil and Political Rights. It was suggested by the British Government, which pointed out that without it that provision âmight be thought to impugn the validity of the judgments of the Nuremberg Tribunalâ.449 Article 15 of the Covenant is identical word for word with Article 7 of the Convention (except for punctuation).
Given the context for which it was drafted, the application of Article 7 § 2 in respect crimes committed during the Second World War by the Nazis and their henchmen raises no complicated questions.450 In contrast, the Court has held that it also applies to crimes committed by others than Nazi collaborators â in particular Soviet Communists.
The applicants in Kolk and Kisliy were found guilty in the early years of the 21st century by Estonian courts of having participated, in March 1949, in the deportation of Estonian civilians to remote areas of the Soviet Union. The criminal legislation applied had been enacted only in 1994, after Estonia had successfully regained its independence. The applicants had argued that their actions had been legal under the law of the Soviet Union. The Estonian courts had rejected that defence referring to Article 7 § 2.
Declaring the application inadmissible de plano, the Court held as follows:
The Court notes that deportation of the civilian population was expressly recognised as a crime against humanity in the Charter of the Nuremberg Tribunal of 1945 (Article 6 (c)).451 Although the Nuremberg Tribunal was established for trying the major war criminals of the European Axis countries for the offences they had committed before or during the Second World War, the Court notes that the universal validity of the principles concerning crimes against humanity was subsequently confirmed by, inter alia, resolution 95 of the United Nations General Assembly (11 December 1946)452 and later by the International Law Commission.453 Accordingly, responsibility for crimes against humanity cannot be limited only to the nationals of certain countries and solely to acts committed within the specific time frame of the Second World War. â¦
It was thus established, at the very least, that though Article 7 § 2 had been written with a particular view to punishing the crimes of the Nazis its applicability was not limited to them alone. The Nuremberg Charter and the affirmation by the General Assembly of the United Nations of its principles were taken as indicative of the âgeneral principles of lawâ and, what was more, their actual recognition by the Soviet Union by 1949.
The Nuremberg Principles, adopted in 1950, codify âcrimes against peaceâ, âwar crimesâ and âcrimes against humanityâ and set out the principle of international criminal responsibility in a form applicable to those States that are not party to the Rome Statute of the International Criminal Court.454 Other documents relevant to this discussion include the Genocide Convention455 and the Convention against Torture,456 both of which have been ratified or acceded to by all Council of Europe Member States.
4.7.5
Article 3 of Protocol No. 6 adds prohibition of the death penalty to the list of non-derogable rights. However, Article 2 of Protocol No. 6 permits States to âmake provision in its law for the death penalty in respect of acts committed in time of war or of imminent threat of warâ. The use of the expression âwarâ implies that the death penalty may not be imposed in any other emergency threatening the life of the nation. Thus, for example, the venerable practice of shooting rioters or looters out of hand in a calamity falling short of war is effectively rendered legally impossible.
Protocol 13 takes matters still further. Born of the realisation that Protocol No. 6 âdoes not exclude the death penalty in respect of acts committed in time of war or of imminent threat of warâ and the resolve âto take the final step in order to abolish the death penalty in all circumstancesâ,457 it removes the option left to States by Article 2 of Protocol No. 6 to make provision for the death penalty even in wartime. As a matter of logic, the second Article of that Protocol â âNo derogation from the provisions of this Protocol shall be made under Article 15 of the Conventionâ â would seem redundant, but it serves the useful purpose of driving home the point that abolition of the death penalty is now absolute.
At least for the vast majority of European States, that is. To date, Protocol No. 13 has been signed but not ratified by Armenia, and neither signed nor ratified by Azerbaijan and Russia. Russia is not even a party to Protocol No. 6. This is worrying given that these are States that have strained relations with some of their neighbours, in some cases to the point of maintaining a military presence on territory over which their sovereignty is disputed.
It is however arguable in the light of the reasoning developed by the Court in Ãcalan that the ratification of Protocol No. 13 by the overwhelming majority of Contracting States coupled with the practice of the remaining Contracting States, at least as far as is known, of not carrying out executions even in cases where such would be permitted under the terms of Protocol No. 6 can now be construed as the de facto abolition of the death penalty in all circumstances, and thus as evidence of the emergence of a corresponding rule of customary international law broadening the protection of the Convention system in that respect.458
4.7.6
Article 4 of Protocol No. 7 guarantees, in respect of those States that have ratified the Protocol, the right not to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which one has already been finally acquitted or convicted in accordance with the law and penal procedure of the State concerned. It admits of reopening of the proceedings only if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.
This Article is non-derogable by virtue of its third paragraph.
The practical importance of the non-derogable nature of this provision is illustrated by the Courtâs judgment in MarguÅ¡ v. Croatia which we have examined in the previous chapter.459
It is true that there was no derogation under Article 15 in this case (nor could there be), but had there been, its effect would have been identical to that of the amnesty: to shield war criminals from a second prosecution after escaping accountability for their crimes through abuse of law. Understood in this sense, Article 4 § 3 of Protocol No. 7 can be seen as a useful companion provision to Article 7 § 2 of the Convention.
4.7.7
We have seen that a non-derogable right to claim exemption from military service, provided that it be based on serious and convincing conscientious objections, is implied by the logic of the right itself.460
Some authors have identified other rights as non-derogable based on their essential importance or on their connection with the rights recognised as nonderogable by Article 15. These would include Article 13,461 which would be nonderogable in so far as it is interlinked with non-derogable substantive rights, and the procedural provisions contained in the Convention itself â most notably the right of individual petition (Article 34).462 Others would derive nonderogable status from their being rules of either ius cogens or international humanitarian law.463 An example of the latter would be the guarantees of trial by an independent and impartial tribunal, attended by all appropriate guarantees, which is guaranteed by Common Article 3 of the Geneva Conventions and Article 6 of Additional Protocol No. II to the Geneva Conventions.464
Let us consider these suggestions in the light of the Courtâs case-law.
4.7.7.1
Freedom from discrimination is largely non-derogable under the International Covenant on Civil and Political Rights (âprovided that such measures ⦠do not involve discrimination solely on the ground of race, colour, sex, language, religion or social originâ, Article 4 § 1 of the Covenant)465 and the American Convention on Human Rights (Article 27 § 1, which uses the same terms as the Covenant bar the word âsolelyâ). There is nothing in the text of Article 15 of the Convention to suggest that the principle of non-discrimination is nonderogable. Nonetheless, the suggestion that that requirement is subjacent is not new.466
In A. and Others, as we have seen, the Court found that the measures complained of were âdisproportionate in that they discriminated unjustifiablyâ between nationals and foreigners, without finding it necessary to delve separately into the complaint brought under Article 14 taken together with Article 5.467 This could be understood to suggest that there is now a separate non-derogable right to be protected against discrimination under the Convention also.
A separate requirement that any derogating measures taken not be discriminatory was formulated by Judge Matscher in his separate opinion in Ireland v. the United Kingdom. He phrases it as follows:
If the authorities deemed it necessary in order to combat terrorism to take emergency measures which weighed heavily on the population concerned, and if these measures were applied to only one section of the population whereas, in order to combat a comparable terrorist campaign originating from the other side â insofar as it was seriously combated â, they thought that they could confine themselves to the ordinary means of prevention and punishment, the question also arises whether the emergency measures were really indispensable within the meaning of Article 15 of the Convention.468
Discrimination is covered by Articles 14 of the Convention and 1 of Protocol No. 12. Article 14 of the Convention protects only against discrimination in âthe rights and freedoms set forth in the Conventionâ, whereas Article 1 of Protocol No. 12 forbids discrimination in âthe enjoyment of any right set forth by lawâ and âby any public authorityâ. The test is the same:
The notion of discrimination has been interpreted consistently in the Courtâs jurisprudence concerning Article 14 of the Convention. In particular, this jurisprudence has made it clear that âdiscriminationâ means treating differently, without an objective and reasonable justification, persons in similar situations (â¦). The authors used the same term, discrimination, in Article 1 of Protocol No. 12. Notwithstanding the difference in scope between those provisions, the meaning of this term in Article 1 of Protocol No. 12 was intended to be identical to that in Article 14 (see the Explanatory Report to Protocol No. 12, § 18). The Court does not therefore see any reason to depart from the settled interpretation of âdiscriminationâ, noted above, in applying the same term under Article 1 of Protocol No. 12 (â¦).469
Consequently, if there is objective and reasonable justification for the difference in treatment in issue (or for the failure to treat differently persons whose situations are significantly different),470 there is no discrimination and hence no violation of either Article.
It is submitted that there is no need to formulate non-discrimination as a separate non-derogable right. A distinction that is objectively and reasonably justified, and for that reason not discriminatory, may well come within the protection of Article 15 § 1: for example, it is difficult to argue that in time of international armed conflict aliens who owe allegiance to the enemy should be treated the same as nationals in all things. Conversely, if objective and reasonable justification cannot be established, there will in any event be a violation of Article 14 of the Convention taken together with the substantive Article (or Article 1 of Protocol No. 12 as the case may be): absent such justification, it is logically impossible to argue that the measure in issue is âstrictly required by the exigencies of the situationâ.
4.7.7.2
In Hassan, the Court defined the limits of the protection of Article 5 in international armed conflict in accordance with Articles 4A and 21 of the Third Geneva Convention and Articles 42 and 78 of the Fourth Geneva Convention.471 This necessarily implies the same limits when Article 44 § 4 of Additional Protocol No. I to the Geneva Conventions applies.
To that extent it can be said that the rights guaranteed by Article 5 are, in part, non-derogable by virtue of international humanitarian law.
It is also interesting to compare Article 43 of the Fourth Geneva Convention with Article 5 § 4 of the Convention. The former vouchsafes to any alien âprotected person who has been interned or placed in assigned residenceâ the entitlement to have such action âreconsidered as soon as possible by an appropriate court or administrative boardâ, followed, if necessary, by periodic review at twice-yearly intervals. This suggests that Article 5 § 4 of the Convention is non-derogable at least as far as alien civilians caught up in an international armed conflict are concerned.472
4.7.7.3
Although Article 6 is not specifically mentioned in Article 15, it is difficult to conceive of circumstances that might justify restrictions on the right of everyone to a âfair and public hearing within a reasonable time by an independent and impartial tribunal established by lawâ, at the very least when the case concerns the determination of a âcriminal chargeâ.
It would be all the less reasonable to countenance such restrictions given that the Third Geneva Convention provides, in its Article 84, that
In no circumstances shall a prisoner of war be tried by a court of any kind that does not offer the essential guarantees of independence and impartiality as generally recognized, and, in particular, the procedure of which does not afford the accused the rights and means of defence provided for in Article 105.
Article 105 of the Third 1949 Geneva Convention sets out in considerable detail rights of the defence that are, for the most part, equivalent to the catalogue of rights set out in Article 6 § 3; the only one that seems to be lacking is the right to call defence witnesses under the same conditions as prosecution witnesses (Article 6 § 3 (d) of the Convention). The right to call witnesses is, however, mentioned in the Commentary of 1960.473 Although there is no requirement that the trial of a prisoner of war be public, an equivalent purpose is served by notification of the Protecting Power and by allowing that Power to attend the trial as long as the detaining Powerâs security is not at risk.
The Fourth Geneva Convention, in its Article 71 and 72, also sets out fair trial guarantees largely corresponding to those provided by Article 6 §§ 1 and 3 (d) of the Convention. Article 71, in its opening words, sets out the requirement of a âregular trialâ. Under the terms of Article 5 of that Convention, these requirements are non-derogable even in respect of spies and saboteurs.
The ICRC Commentary of 1958 adds the following:
The inclusion in the Convention of the express rule that no sentence may be pronounced by the competent courts of the Occupying Power except after âa regular trialâ introduces into the law of war a fundamental notion of justice as it is understood in all civilized countries.
The safeguards provided in the Articles dealing with penal legislation, which we have just discussed, and those prescribed elsewhere, particularly in Article 32, which prohibits torture and all other forms of brutality, obviously represent conditions which must be fulfilled if a trial is to be regular; but there are other rules relating to penal procedure which are not expressly laid down in the Convention, but must nevertheless be respected as they follow logically from its provisions. One is the principle that any accused person is presumed to be innocent until he is proved guilty. This essential rule remains fully valid in occupied territory.474
As regards armed conflicts not of an international character, the second paragraph under (d) of Article 3 common to all four 1949 Geneva Conventions prohibits âat any time and at any place whatsoeverâ
the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
For the interpretation of this provision, the ICRC Commentary of 2016 refers to â[t]he 1966 International Covenant on Civil and Political Rights and other human rights treatiesâ. It also mentions treaty bodies having âstated that the fundamental principles of fair trial and the requirement that courts be independent and impartial can never be dispensed withâ.475 Although the Court is not among the âtreaty bodiesâ having expressed itself in quite such sweeping terms,476 in a footnote the Commentary refers to the requirements of independence and impartiality set by the Courtâs Findlay and Belilos judgments.477 The conclusion can be none other than that the fair trial guarantees set out in Article 6 are non-derogable in cases of international and non-international armed conflict; in our submission, it is therefore difficult to see how they are not non-derogable in any lesser emergency.
4.7.7.4
The Human Rights Committee, in its General Comment No. 29 on States of Emergency, signals the existence of other rights that, in its opinion, cannot be made subject to derogation under Article 4 of the Covenant. These are derived from the Covenant itself and from other norms of customary and treaty law. They include such matters as the right of all persons deprived of their liberty to be treated with humanity and with respect for the inherent dignity of the human person (Article 10 of the Covenant itself); the prohibition on the taking of hostages, abductions or unacknowledged detention, which are described as ânorms of general international lawâ; certain aspects of minority rights; the deportation or forced displacement of populations; and propaganda for war or advocacy of national, racial or religious hatred that would constitute incitement to discrimination, hostility or violence; the right to an effective remedy; and procedural guarantees including the presumption of innocence and the right of habeas corpus.478
The Court does not issue general comments such as this; indeed, precisely because it is a court, that would not be proper. Courts set substantive standards through their case-law. Nonetheless we would consider it highly unlikely that the Court would accept measures such as those proscribed by the Human Rights Committee, if only because it would be difficult to justify them as justified by the âexigencies of the situationâ.
4.8
The requirement that the measures taken be âstrictly required by the exigencies of the situationâ suggests a strict necessity test. In fact, however, the State has until now been allowed greater discretion than that.
It is a reasonable requirement that any measures taken correspond in some way to the crisis which they are intended to address.479 The Court implies as much in A and Others in criticising the choice of âan immigration measure to address what was essentially a security issueâ, which âhad the result of failing adequately to address the problemâ and moreover was discriminatory in its effects.480
In its report in the âFirst Cyprus Caseâ, which admittedly is now sixty years old, the Commission was prepared to accept such interferences with ordinary life as curfews, prolonged periods of administrative detention, censorship and controls on burials and religious ceremonies. In Lawless, its very first case, the Court accepted administrative detention, though subject to a safeguard in the form of the possibility to seek review before a non-judicial body and of a way out in the form of a binding undertaking to renounce the use of violence. In Brannigan and McBride, the Court was marginally less accommodating: it accepted extended periods of detention without access to a magistrate, but only subject to safeguards both procedural (a remedy in the form of habeas corpus) and physical (including access to a doctor and the right to notify someone on the outside).
Nonetheless, the existence of safeguards does not exhaust the margin of appreciation in this respect: it is also a reasonable requirement that the respondent State be in a position to satisfy the Court that the measures resorted to are of a nature to assist efforts towards a return to normality â and therefore temporary.481 Indeed, the expression âstrictly required by the exigencies of the situationâ would have no meaning if it did not encompass such a requirement.
Judge Martens, dissenting in Brannigan and McBride, doubts that the strict necessity test leaves Governments any margin of appreciation. In his words:
The second question [i.e. once it is determined that there is a threat to âthe life of the nationâ] is whether the derogation is to âthe extent strictly required by the exigencies of the situationâ. The wording underlined clearly calls for a closer scrutiny than the words ânecessary in a democratic societyâ which appear in the second paragraph of Articles 8-11. Consequently, with respect to this second question there is, if at all, certainly no room for a wide margin of appreciation.482
It is a view that undeniably sits well with a grammatical interpretation of Article 15.483
4.9
We have seen that the expression âother obligations under international lawâ relevant to the interpretation of Article 15 primarily include those arising from the Charter of the United Nations, including those that govern the legality of war (Chapter VII of the Charter of the United Nations).
However, once war becomes a reality, other international legal obligations that become pertinent are those that are part of international humanitarian law which, as we have seen, on the one hand are generally more permissive visà -vis public authority â although not in all cases: sometimes they are noticeably stricter484 â but on the other hand generally admit of no derogation at all. Consequently, where provisions of international humanitarian law coincide with rights guaranteed by the Convention, their effect is actually to make those rights by implication non-derogable.485
It is not necessarily the case that those âother obligations under international lawâ offer less protection to the individual than the Convention itself. For example, Article 43 of the Geneva Convention relative to the Protection of Civilian Persons in Time of War (Geneva Convention (IV)) prescribes twice-yearly review of internment (Article 43) â such frequency of review being far more generous than that vouchsafed to long-term detainees (âpersons of unsound mindâ detained in accordance with Article 5 § 1 (e), for example) by the case-law of the Court.486 Similarly, Article 73 of Geneva Convention (IV) â and let us recall that the four Geneva Conventions enjoy universal ratification â extends the right to an appeal in criminal matters even to territories occupied by Convention States that have not ratified Protocol No. 7.487
The expression âother obligations under international lawâ may also be relevant to calamities not of a hostile nature that involve more than one country, a major natural disaster or an economic crisis perhaps, to which customary or conventional rules of international law may apply.488
Obligations relevant to this provision identified in doctrine include the socalled âbasic human rights conventionsâ of the International Labour Organisation (ILO).489 It would appear obvious that rights corresponding to the prohibitions set out in the Rome Statute of the International Criminal Court also fall within this category, such as the destruction and seizure of property not justified by military necessity (Article 8 § 2 (a) (iv) and (xiii)); the destruction of religious buildings and hospitals that are not military objectives (Article 8
§ 2 (a) (ix)); declaring abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party (Article 8 § 2 (a) (xiv)); and pillaging (Article 8 § 2 (a) (xvi)) â at the very least, as conventional obligations in respect of those States that have ratified the Rome Statute.490
As a matter of common sense, it must be a mistake to interpret âother obligations under international lawâ so as to import into Article 15 substantive provisions from other human rights treaties offering greater protection than the Convention itself, as is sometimes suggested.491 Article 4 § 2 of the International Covenant on Civil and Political rights, for example, has a broader catalogue of non-derogable rights than the Convention â including for example the right to freedom of thought, conscience and religion (Article 18).
The requirement that the measures concerned be not âinconsistent with [the Stateâs] other obligations under international lawâ is a difficult one for the Court to monitor, since the Court is not set up to rule on any rules of international law other than the Convention. Even so, the Court is prepared to do so to the extent that the facts of the case make it inevitable, as for example the Van Anraat492 and Stichting Mothers of Srebrenica and Others493 decisions demonstrate. In relation to Article 15, the question has thus far only been raised in relation to formal requirements. In that respect the Court has eschewed extremes of formalism.494
4.10
France proclaimed a state of emergency in November 2015, in the wake of the terrorist attacks in Paris, as we know; so did Turkey, in July 2016, after the attempted coup dâétat. Unlike Article 4 § 1 of the International Covenant on Civil and Political Rights, Article 15 of the Convention does not require that a state of emergency (or, for that matter, war) be officially declared. Ireland and the United Kingdom did not do so before lodging their notices of derogation.
In the âFirst Cyprus Caseâ, the Greek Government disputed the validity of the notes verbales transmitted to the Secretary General. The Commission stated the importance of giving notice in accordance with Article 15 § 3 in the following terms:
It follows from the above-mentioned provisions of Articles 19, 24 and 25 [now Articles 19, 33 and 34] that, when one High Contracting Party exercises its right to take measures under Article 15 derogating from its obligations under the Convention, the other High Contracting Parties have a legal interest in being informed of those measures since temporarily their own rights under Article 24 of the Convention [now Article 33] are pro tanto curtailed. It equally follows from the provisions of Articles 19, 24 and 25, that the position of the Commission (and, ultimately, of the European Court of Human Rights) in applying the Convention is directly affected by the fact that a High Contracting Party has taken measures under Article 15 which derogate from its obligations under the Convention. It further follows, in the case of a State which has recognised the competence of the Commission to receive petitions from individuals and groups under Article 25 [now superseded by Article 34], that the work of the Commission in determining the admissibility of such petitions may be impeded if it does not receive timely and definite information concerning any measure derogating from its obligations under the Convention which a State claims to have taken in reliance on Article 15.
The obvious implication was that notice to the Secretary General had to be given âwithout any unavoidable delayâ and must contain sufficient information to allow the other Contracting States and the Commission itself âto appreciate the nature and extent of the derogation of the provisions of the Convention which the measures involveâ.495
The Commission considered that the note verbale had been transmitted to the Secretary General with excessive delay â nearly three months after the measures derogating from Article 5 of the Convention had been introduced. Its content, nevertheless, was deemed âsufficient to indicate in a general way the nature of the measures takenâ although lacking in detail and precision. This being the first instance of derogation under Article 15, the Commission was unwilling to find it insufficient on that ground but noted for future reference that it required ârather fuller informationâ in order satisfactorily to discharge its functions.
In the âGreek Caseâ, in contrast, the Commission found that not only had the Greek rulers failed to give adequate notice of their derogating measures to the Secretary General of the Council of Europe: notice of many of the measures adopted â including the promulgation of the new Constitution â was given either with several monthsâ delay or not at all.496
The most recent notice of derogation, that of Turkey of 21 June 2016, again lacked specificity: in the Courtâs words, it indicated merely
that a state of emergency has been declared in order to tackle the threat posed to the life of the nation by the severe dangers resulting from the attempted military coup and other terrorist acts, [and did] not explicitly mention which Articles of the Convention [were] to form the subject of a derogation. Instead, it simply [announced] that âmeasures taken [might] involve derogation from the obligations under the Conventionâ.
Even so, since
none of the parties [had] disputed that the notice of derogation by Turkey satisfied the formal requirement laid down in Article 15 § 3 of the Convention, namely to keep the Secretary General of the Council of Europe fully informed of the measures taken by way of derogation from the Convention and the reasons for them ⦠[the Court was] prepared to accept that this formal requirement has been satisfied.497
What is required by Article 15 § 3 is a statement of the measures taken and the reason therefor. There is no requirement that the notice of derogation specify the Articles actually derogated from â although, as the former Deputy Registrar of the Court points out, this is obviously desirable from the point of view of legal certainty.498
In Mehmet Hasan Altan and Åahin Alpay the Court declared itself satisfied with the bald statement of the Turkish Government that
[t]he coup attempt and its aftermath together with other terrorist acts have posed severe dangers to public security and order, amounting to a threat to the life of the nation in the meaning of Article 15 of the Convention for the Protection of Human Rights and Fundamental Freedoms.499
- âwhich suggests that as the case-law of the Court currently stands, it is not required either that the nature of the threat be specified in detail.
Nor is there a requirement that the existence of a public emergency be officially proclaimed, as in Article 4 § 1 of the International Covenant on Civil and Political Rights. One may assume, however, that in practice such an official proclamation will often be made, if only because States derogating under Article 15 of the Convention are likely to lodge the same derogation under Article 4 of the Covenant at the same time.500
It is submitted that Contracting States derogating in order for their armed forces to participate in joint military operations with the forces of States that are not Parties to the Convention might consider including in their notice of derogation a statement of, or at least a reference to, the standing or ad hoc rules governing the joint enterprise, such as memoranda of understanding.501 This might help to allay the problems of âlegal interoperabilityâ mentioned in our opening chapter.502
4.11
In Hassan the Court stretched the margin of appreciation of the Contracting State to its logical extreme by denying the necessity to seek the application of Article 15 at all â at least, as the Courtâs case-law now stands, in respect of Article 5 of the Convention in case of international armed conflict. We have seen that the Court was favourable to the United Kingdom Governmentâs argument that there had been no need for the United Kingdom to derogate under Article 15.503 One author has called the Hassan judgment a âfinal blowâ.504
It was perhaps not inevitable that the Court should bypass Article 15 as it did. As outlined above, the applicability of Article 15 need not have depended on the âwarâ in Iraq âthreatening the life of the nationâ. On this view, the United Kingdom might well have given prior expression to its will to be bound only to apply international humanitarian law.505
Even better â and it is only right at this point to refer to a paper by Tugendhat and Croft published by the British think tank Policy Exchange in 2013 â the United Kingdom might have lodged a notice of derogation under Article 15 of the Convention and sought âexplicit language in future Chapter VII United Nations Security Council Resolutions in order to provide a legal basis for detention or internment acceptable to the ECHRâ.506 That is sound advice for the future.
4.12
Impossibilium nulla obligatio est.507 Article 15 was included in the Convention precisely for that reason. It offers Contracting States the possibility to reduce their substantive Convention liabilities in appropriate cases while yet remaining within their Convention obligations.
It is submitted that Article 15 has not yet been tested to its limits. In particular, the cases considered by the Commission and the Court have only ever concerned the threat of terrorist attack (Ireland, United Kingdom, France) or direct attempts to displace the Government (Cyprus, Greece, Turkey). As we have seen, however, the occasion to apply Article 15 may conceivably arise in situations not readily definable in terms of conflict, for example an environmental disaster or economic collapse.
Equally, from the Courtâs perspective the time may have come to reassess the limits themselves. Thus far application of Article 15 has been found impermissible only once in Strasbourg case-law: in the Greek case, in which as we have seen the bad faith of those who had usurped the powers of government was considered manifest.508 Rarely until now have there been prolonged states of emergency in place, with corresponding Article 15 derogations, and rarely have they covered the entire territory of the State. The Turkish derogations in issue in Sakık and Others and other cases of the period covered only certain provinces in the southeast of the country; the United Kingdom derogations covered only the six counties of Northern Ireland. Between July 2016 and November 2017 there were for the first time three sweeping notices of derogation in place simultaneously, all of them for prolonged periods: that of Ukraine (lodged on 5 June 2015), that of France (lodged on 25 November 2015) and that of Turkey (lodged on 21 July 2016). The French and Turkish notices have been withdrawn. Of the three, only the Ukrainian derogation does not apply to the whole of the country. The continent of Europe appears to be heading towards more instability and crisis, not less; it may well be that more governments succumb to the temptation to solve their domestic problems by limiting substantive Convention rights. If they do, the day will surely come when the Court must consider critically, firstly, whether the situation so justifies, and secondly, whether the derogating measures themselves are â or continue to be â justified.
A further point to be made is that Contracting States have thus far eschewed its use in situations that could properly be described as âwarâ. One reason for this, pointed out above,509 may be that Governments are unwilling both to acknowledge their own inability to contain the situation and to recognise to their opponents combatant status within the meaning of international humanitarian law â especially if the conflict is a non-international one fought on the territory of the Contracting State itself. Another may be a fear of criticism of their unwillingness fully to comply with Convention standards.510
The time may soon come for them to reconsider this stand. At all events, if it proves necessary to see current events in Crimea and Eastern Ukraine as occurring within an âinternational armed conflictâ,511 then the Ukrainian notice of derogation of 5 June 2015 suggests that the practice of not lodging derogations under Article 15 in situations where the Third and Fourth Geneva Conventions can apply, as identified in BankoviÄ and Hassan, is no longer universal.512
In another interesting development, several Convention States â Germany, Belgium, Denmark, the Netherlands, the United Kingdom and Norway â have sent letters to the Security Council justifying military action targeting Islamic State on the territory of Iraq and Syria in terms of âcollective self-defenceâ within the meaning of Article 51 of the United Nations Charter.513 Recently, also, Turkey invoked Article 51 of the United Nations Charter (as well as a number of existing Security Council resolutions) in justification of military action in the Afrin region, just across the border in Syria, and directed against âDeash and the PKK/KCK Syria affiliate, PYD/YPGâ.514
An earlier version of this part was published separately as a monograph entitled Thoughts on Article 15 of the European Convention on Human Rights, Wolf Legal Publishers, 2017.
See generally Derogation in time of emergency, factsheet by the Press Unit of the Courtâs Registry, July 2016.
J.P. Loof, Mensenrechten en staatsveiligheid: verenigbare grootheden? (diss. Leiden 2005), Wolf Legal Publishers, p. 379
European Commission for Democracy through Law (Venice Commission), Rule of Law Checklist, CDL-AD(2016)007, § 51.
Louise Doswald-Beck, Human Rights in Times of Conflict and Terrorism (Oxford University Press 2011) p. 5; Eric Pouw, International Human Rights Law and the Law of Armed Conflict in the Context of Counterinsurgency â With a Particular Focus on Targeting and Operational Detention (diss. UvA 2013), pp. 71-72; see also International Court of Justice, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226 at § 25 (although strictly speaking this passage concerns Article 4 of the International Covenant on Civil and Political Rights, the reasoning is directly transposable to Article 15 of the Convention).
The New Shorter Oxford English Dictionary (1993 ed.).
Cyprus v. Turkey, nos. 6780/74 and 6950/75, Commission report of 10 July 1976, § 528; see also Cyprus v. Turkey, no. 8007/77, Commission report of 4 October 1983, §§ 67-68.
Ireland v. the United Kingdom, § 191; A and Others v. the United Kingdom (GC), no. 3455/05, § 161, ECHR 2009.
Georgia v. Russia (II) (dec.), §§ 72-73; Khlebik v. Ukraine, no. 2945/16, § 82, 25 July 2017.
Richard Ekins, Jonathan Morgan, Tom Tugendhat, Clearing the Fog of Law: Saving our armed forces from defeat by judicial diktat, Policy Exchange, 30 March 2015, available on http://www.policyexchange.org.uk; Gov.uk, âGovernment to protect Armed Forces from persistent legal claims in future overseas operationsâ, 4 October 2016, https://www.gov.uk/government/news/government-to-protect-armed-forces-from-persistent-legal-claims-in-future-overseas-operations (accessed 29 August 2018). For the contrary view, see âUK Armed Forces Personnel and the Legal Framework For Future Operationsâ, Written Evidence from Dr Aurel Sari, Lecturer in Law University of Exeter, submitted to the House of Commons (Session 2013-2014), http://www.publications.parliament.uk/pa/cm201314/cmselect/cmdfence/writev/futureops/law10.htm (accessed 16 February 2016).
Loof, pp. 347-358.
For examples, see Loof, fn. 10 on p. 358.
See, in particular, Isayeva and Others v. Russia, nos. 57947/00, 57948/00 and 57949/00, 24 February 2005; Isayeva v. Russia, no. 57950/00, 24 February 2005; Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00; Khamzayev and Others v. Russia, no. 1503/02, 3 May 2011; and Kerimova and Others v. Russia, nos. 17170/04, 20792/04, 22448/04, 23360/04, 5681/05 and 5684/05, 3 May 2011; all of which note the absence of any derogation under Article 15. For the text of the reservation, see the web site of the Council of Europe Treaty Office. See also Cordula Droege, âElective affinities? Human rights and humanitarian lawâ, International Review of the Red Cross, September 2008, vol. 90, no. 871, pp. 501-547 at p. 507; Françoise J. Hampson, âThe relationship between international humanitarian law and human rights law from the perspective of a human rights treaty bodyâ, International Review of the Red Cross, September 2008, vol. 90, no. 871, pp. 549-572 at p. 563; AnneMarie Baldovin, âImpact de la jurisprudence récente de la Cour européenne des droits de lâHomme sur la planification et lâexécution des opérations militaires à venir : Application extraterritoriale de la Convention, imputabilité des faits des troupes et fragmentation du droit internationalâ, in Military Law and the Law of War Review 50/3-4 (2011), pp. 369-418 at p. 405; and Linos-Alexandre Sicilianos, âLa Cour européenne des droits de lâhomme et le droit international humanitaire : une ouverture progressiveâ, in Human Rights in a Global World: Essays in Honour of Judge Luis López Guerra (Guido Raimondi, Iulia Motoc, Pere Pastor Vilanova, Carmen Morte Gómez, eds.; Wolf Legal Publishers, 2018), pp. 373-386 at p. 375.
See also Sir Daniel Bethlehem, âWhen is an act of war lawful?â, in The Right to Life under Article 2 of the European Convention on Human Rights: Twenty Years of Legal Developments since McCann v. the United Kingdom (In honour of Michael OâBoyle), p. 231 at p. 236.
Hague Convention (III) of 1907 on the Opening of Hostilities, Article 1.
The Georgian declaration of a âstate of warâ of 9 August 2008 applied in the territory of Georgia and for fifteen days only: see Georgia v. Russia (II) (dec.) (GC), no. 38263/08, § 1, 13 December 2011.
Balkan Insight, 22 March 2016, http://www.balkaninsight.com/en/article/albania-and-greece-agree-to-abolish-the-war-law-03-22-2016 (retrieved 6 November 2016); Tirana Times, 25 March 2016. It would appear that the state of war still exists at the time of writing.
Commander Timothy C. Young, Maritime Exclusion Zones: A Tool for the Operational Commander?, Naval War College, Newport, Rhode Island, USA, 18 May 1992, pp. 6-7 and Appendix II.
Hugo Grotius, De iure belli ac pacis (1625), Book I, Chapter III, paragraph 1.
Frits Kalshoven and Liesbeth Zegveld, Constraints on the waging of war: an introduction to international humanitarian law (fourth edition), Cambridge University Press/ICRC 2011, p. 1.
Common Article 2 of the 1949 Geneva Conventions, first paragraph.
ibid., second paragraph.
Common Article 3 of the 1949 Geneva Conventions.
How is the Term âArmed Conflictâ Defined in International Humanitarian Law?, International Committee of the Red Cross (ICRC) Opinion Paper, March 2008, page 1, https:// www.icrc.org/eng/assets/files/other/opinion-paper-armed-conflict.pdf (accessed 19 August 2015.
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflict (Protocol II), 8 June 1977, Article 1 § 1.
ibid., Article 1 § 2.
International Criminal Tribunal for the Former Yugoslavia (ICTY), Appeals Chamber, Prosecutor v. Kunarac, KovaÄ and VukoviÄ, Cases Nos. IT-96-23 and IT-96-23/1, judgment, 12 June 2002, § 56.
ICTY, Appeals Chamber, Prosecutor v. DuÅ¡ko TadiÄ, IT-94-1-T, judgment, 7 May 1997, § 561.
How is the Term âArmed Conflictâ Defined in International Humanitarian Law?, International Committee of the Red Cross (ICRC) Opinion Paper, March 2008, p. 3.
International Committee of the Red Cross, Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Commentary of 2016, § 387.
Kalshoven and Zegveld, supra note 239, ibid.; see generally Marko MilanoviÄ and Vidan Hadži-VidanoviÄ, A Taxonomy of Armed Conflict (January 20, 2012). Research Handbook on International Conflict and Security Law, Nigel White, Christian Henderson, eds., Edward Elgar, 2012, p. 256.
Note verbale from the Ukrainian Permanent Representative to the Secretary General of the Council of Europe, 5 June 2015, Council of Europe treaty office web site, http://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/005/declarations?p_auth=oM51wfc3. An identical document was lodged with the Secretary General of the United Nations under Article 4 § 1 of the International Covenant on Civil and Political Rights on the same day (UN Doc. C.N.416.2015.TREATIES-IV.4). See also Marko MilanoviÄ, âUkraine Derogates from the ICCPR and the ECHR, Files Fourth Interstate Application against Russiaâ, EJIL:Talk!, 5 October 2015.
Hassan v. the United Kingdom (GC), no. 29750/09, § 42, ECHR 2014.
BankoviÄ and Others v. Belgium and Others (dec.) (GC), no. 52207/99, § 62, ECHR 2001-XI
Hassan, § 101.
Varnava and Others § 185.
Hassan, passim.
Hassan, passim.
See 1.2.1 above.
On the interpretation of the expression ânon-international armed conflictâ, see generally MilanoviÄ and Hadži-VidanoviÄ, pp. 282 et seq.
Article 3 of the 1977 Additional Protocol.
Article 1 of the 1977 Additional Protocol.
Françoise J. Hampson, âThe relationship between international humanitarian law and human rights law from the perspective of a human rights treaty bodyâ, International Review of the Red Cross, September 2008, vol. 90, no. 871, pp. 549-572 at p. 556; Anna Austin, Contribution to a seminar held at the University of Toulouse in March 2016. See also Harris, OâBoyle and Warbrick, Law of the European Convention on Human Rights (Oxford University Press, 3rd edn. 2014), p. 825.
Article 6 § 5 of the 1977 Second Additional Protocol. As the term âamnestyâ indicates, the existence of a non-international armed conflict does not of itself prevent States from bringing prosecutions under ordinary criminal law: see, for example, Supreme Court of the Netherlands (Hoge Raad), judgment of 7 May 2004, ECLI:NL:HR:2004:AF6988, also published in NJ 2007/276 with an annotation by A.H. Klip; and Supreme Court of the Netherlands, judgments of 4 April 2017, ECLI:NL:HR:2017:574, also published in NJ 2018/106, ECLI:NL:HR:2017:574, also published in NJ 2018/107, and ECLI:NL:HR:2017:577, also published in NJ 2018/108, with an annotation by E. van Sliedregt after NJ 2018/2018.
Elizabeth Chadwick, Self-Determination, Terrorism and the International Humanitarian Law of Armed Conflict, Martinus Nijhoff 1996, pp. 41-42 and 82.
See, among many other examples, Sakık and Others v. Turkey, nos. 23878/94, 23879/94, 23880/94, 23881/94, 23882/94 and 23883/94, Reports 19978-VII; Ãcalan v. Turkey (GC), no. 46221/99, ECHR 2005-IV; and Finogenov and Others v. Russia, nos. 18299/03 and 27311/03, ECHR 2011.
Working definition taken from the Declaration to Supplement the 1994 Declaration on Measures to Eliminate International Terrorism, A/RES/51/210, 16 January 1997. Compare Article 2 § 1 (b) of the International Convention for the Suppression of the Financing of Terrorism, 10 January 2000: (in addition to acts which constitute offences within the scope of and as defined in specific named treaties), âAny other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.â
See generally Jelena Pejic, âArmed Conflict and Terrorism: There Is A (Big) Differenceâ, in Counter-Terrorism: International Law and Practice (Ana MarÃa de FrÃas, Katja L.H. Samuel, Nigel D. White, eds.), Oxford University Press 2011 p. 171.
Helen Duffy, The âWar on Terrorâ and the Framework of International Law (2nd edition 2015), Cambridge University Press, pp. 566-567.
Constitutional Court of the Russian Federation, Judgment of 31 July 1995 on the constitutionality of the Presidential Decrees and the Resolutions of the Federal Government concerning the situation in Chechnya (translation by Federal News Service Group, Washington D.C., published by the Venice Commission on 10 January 1996 as CDL-INF (96) 1). See Bowring, Bill (2008) â âHow will the European Court of Human Rights deal with the UK in Iraq?: lessons from Turkey and Russiaâ â London: Birkbeck ePrints. Available at: http://eprints.bbk.ac.uk/859 at p. 9.
Korbely § 61.
Jean-Paul Costa and Michael OâBoyle, âThe European Court of Human Rights and International Humanitarian Lawâ, in The European Convention on Human Rights, a living instrument, Essays in Honour of Christos L. Rozakis (Bruylant, 2011), p. 107 at p. 116.
Helen Duffy, The âWar on Terrorâ and the Framework of International Law (2nd edition 2015), Cambridge University Press, p. 587.
âGuerre dâAlgérieâ (Algerian war) is now the expression approved by law; formerly the official appellation was âoperations carried out in North Africaâ (Loi no 99-882 du 18 octobre 1999 relative à la substitution, à lâexpression « aux opérations effectuées en Afrique du Nord », de lâexpression « à la guerre dâAlgérie ou aux combats en Tunisie et au Maroc », Journal officiel no. 244, 20 October 1999).
âHybrid war â does it even exist?â, NATO review, http://www.nato.int/docu/review/2015/ Also-in-2015/hybrid-modern-future-warfare-russia-ukraine/EN/index.htm (accessed 7 June 2016). The closest NATO has come appears to be a paragraph of the Wales Summit Declaration of 5 September 2014: âWe will ensure that NATO is able to effectively address the specific challenges posed by hybrid warfare threats, where a wide range of overt and covert military, paramilitary, and civilian measures are employed in a highly integrated design. â¦â NATO press release (20014)120, 5 September 2014, https://www.nato.int/cps/ en/natohq/official_texts_112964.htm (accessed on 27 November 2017). See generally Andres B. Munoz Mosquera and Sascha Dov Bachmann, âLawfare in Hybrid Wars: The 21st Century Warfareâ, in Journal of International Humanitarian Legal Studies 7 (2016) 63-87. See also Martin Murphy, Frank G. Hoffman, Gary Schaub, Jr., Hybrid Maritime Warfare and the Baltic Sea Region, University of Copenhagen, Centre for Military Studies, November 2016, p. 3.
With regard to cyber-attacks, see Jack Goldsmith, âHow Cyber Changes the Laws of Warâ, EJIL (2013), Vol. 24 No. 1, 129-138 at pp. 133-34; Lieutenant Ken M. Jones, USN, Cyber War: The Next Frontier For NATO, Progressive Management, 2016, pp. 20-23; Christian Henderson, âThe use of cyber force: Is the jus ad bellum ready?â, in QIL, Zoom-in 27 (2016), pp. 3-11 at p. 7; and International Committee of the Red Cross, Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Commentary of 2016, § 254. See also Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, 27 June 1986, I.C.J. Reports 1986, § 195.
§ 98.
§ 100.
Helen Duffy, The âWar on Terrorâ and the Framework of International Law (2nd edition 2015), Cambridge University Press, p. 587.
See Chapter 6 below.
The United Kingdom derogated under Article 15 in respect of these; the derogations were either withdrawn eventually or came to an end when the territory concerned gained independence. Information available from the web site of the Council of Europe Treaty Office. See also Bart van der Sloot, âIs All Fair in Love and War? An Analysis of the Case Law on Article 15 ECHRâ, in Military Law and the law of War Review 53/2 (2014), pp. 319-358 at p. 344, who considers it âhighly questionable whether it [was] in the interest of the rebelling indigenous population ⦠to limit their rights and freedoms by invoking the state of necessity.â
Contrast Cyprus v. Turkey, § 69, with Ãcalan, § 78.
X v. Germany, no. 6742/94, Commission decision of 10 July 1974, p. 98 at p. 101; International Court of Justice, Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, I.C.J. Reports 2010 p. 403, §§ 82-83; see also Crawford (2012), pp. 141-142. For a contrary view, see Bart van der Sloot, âIs All Fair in Love and War? An Analysis of the Case Law on Article 15 ECHRâ, in Military Law and the law of War Review 53/2 (2014), pp. 319-358 at p. 344.
Sari, supra note 229.
Young, supra note 237, Appendix II.
UNSC Resolutions 83 (1950), 27 June 1950, and 84 (1950), 7 July 1950 (Complaint of aggression upon the Republic of Korea).
Principally Belgium, France, Greece, Luxembourg, the Netherlands, Turkey and the United Kingdom (Denmark, Italy, Norway and Sweden sent humanitarian aid but not combat forces).
Leuven Manual on the International Law Applicable to Peace Operations, p. 27.
A distinction made by Tristan Ferraro in âThe applicability and application of international humanitarian law to multinational forcesâ, in International Review of the Red Cross (2013), 95 (891/892), pp. 561-612 at p. 565.
For an overview, see Ferraro, loc. cit., pp. 561-612.
See 4.3.1 above.
Kjetil MujezinoviÄ Larsen, The Human Rights Treaty Obligations of Peacekeepers, Cambridge University Press 2012, pp. 312-13.
Articles 7 § 2 and 29 of the Charter of the United Nations. See also Lotten Paulsson, Delegation of powers to United Nations Subsidiary organs (Masterâs thesis, Lund 2004), p. 24.
Compare Behrami and Behrami v. France and Saramati v. France, Germany and Norway (dec.) (GC), nos. 71412/01 and 78166/01, § 143, 2 May 2007 (âBehrami and Saramatiâ); see also 8.4.5.2 below.
For a description of the emergence of the concept and a critical appraisal, see Carlo Focarelli, âThe Responsibility to Protect Doctrine and Humanitarian Intervention: Too Many Ambiguities for a Working Doctrineâ, Journal of Conflict and Security Law (2008), Vol. 13 No. 2, 191-213, and Nienke van den Have The prevention of gross human rights violations under international human rights law (diss. Amsterdam 2017), pp. 209-214.
International Commission on Intervention and State Sovereignty, The Responsibility to Protect, Ottawa (issued by the International Government Research Centre, December 2001). Note however that âhumanitarian interventionâ was the international legal ground invoked by the Government of the United Kingdom in justification of participation by United Kingdom forces in the attack on Syrian targets on 14 April 2018 in response to an attack by the Syrian regime in the Syrian town of Douma on 7 April 2018 allegedly using chemical weapons: see Syria action â UK government legal position, policy paper published on 14 April 2018.
The position of the International Committee of the Red Cross, for example, is that â[i]nternational humanitarian law cannot serve as a basis for armed intervention in response to grave violations of its provisionsâ and that the expression âarmed intervention in response to grave violations of human rights and of international humanitarian lawâ is to be preferred. See Anne Ryniker, âThe ICRCâs position on âhumanitarian interventionââ, International Review of the Red Cross, June 2001, vol. 83, no. 842, pp. 527-532 at p. 527 and passim.
UNGA Res. 60/1, 2005 World Summit Outcome, § 139.
S/Res/1674, 28 April 2006.
S/Res/1894, 11 November 2009.
S/Res/1706, 31 August 2006.
For a definition of âaggressionâ in international law, see UNGA Res. 3314 (XXIX) (1974).
âReaffirming the profound belief in those fundamental freedoms which are the foundation of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the human rights on which they depend; â¦â (Preamble to the Convention, fourth paragraph).
Compare Articles 17 and 18 of the Convention; see also De Becker v. Belgium, no. 214/56, Commission report of 8 January 1960.
Demopoulos and Others v. Turkey (dec.) (GC), nos. 46113/99, 3843/02, 13751/02, 13466/03, 10200/04, 14163/04, 19993/04 and 21819/04, § 67 and 99, ECHR 2010 (Cyprus, intervening, in relation to Turkey); Kononov, § 179 (Lithuania, intervening, in relation to both the Soviet Union and Nazi Germany).
Bruno Simma, âNATO, the UN and the Use of Force: Legal Aspectsâ, in EJIL 10 (1999), 1-22, pp. 1-6.
Simma, ibid.; Antonio Cassese, âEx iniuria ius oritur: Are We Moving towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?â, in EJIL 10 (1999), 1-22, pp. 23-40 at p. 25; Crawford (2012), p. 757.
See also Article 75 of the Vienna Convention on the Law of Treaties.
Report of the Iraq Inquiry (âChilcot Reportâ), Executive Summary, §§ 338-39. Similar conclusions have been reached elsewhere; for example, for the Netherlands, see the Report of the Committee to Investigate Decision-Making concerning Iraq (Commissie van onderzoek besluitvorming Irak, known as the âDavids Committeeâ, after its chairman), Uitgeverij Boom 2010, p. 145.
Chilcot Report, Executive summary, § 826.
Eirik Bjorge, âWhat is living and what is dead in the European Convention on Human Rights? A Comment on Hassan v. United Kingdomâ, Questions of International Law Zoom-In 15 (2015), 23-36 at 26-28; see also R (on the application of Al-Jedda) (FC) (Appellant) v Secretary of State for Defence (Respondent), [2007] UKHL 58, [2008] 1 AC 332, § 38 (per Lord Bingham).
Chilcot Report, Executive summary, ibid.
UN Doc A/2929, § 43.
S/RES/1440 (2002), § 13.
Hassan, § 102.
See the following sections.
See 4.8 below.
See 4.9 below.
Doswald-Beck, pp. 79-80; Helen Duffy, The âWar on Terrorâ and the Framework of International Law (2nd edition 2015), Cambridge University Press, pp. 480-481; Austin, supra note 262; Marko Milanovic, âExtraterritorial Derogations from Treaties in Armed Conflictâ, in The Frontiers of Human Rights: Extraterritoriality and its Challenges, Collected Courses of the Academy of European Law, vol. XXIV/1, p. 55-88 at p. 60.
Harris, OâBoyle and Warbrick (3rd edn. 2014), p. 824, fn. 6.
Notification JJ6631C Tr./005-175 04 March 2008.
from freedom of movement in a particular district. Notification JJ6239C Tr./005-166, 13 March 2006, withdrawn by Notification JJ6268C Tr./005-168 07 April 2006.
Notification JJ6565C Tr./005-173 09 November 2007, withdrawn by Notification JJ6566C Tr./005-174 20 November 2007.
Quoted in Mehmet Hasan Altan v. Turkey, no. 13237/17, § 81, 20 March 2018, and Åahin Alpay v. Turkey, no. 16538/17, § 65, 20 March 2018. See also 4.5.1.9 below.
The French state of emergency, and hence the French derogation, ended on 1 November 2017. Annex to Notification JJ8525C Tr./005-213, 7 November 2017; see also the web site of the Council of Europeâs Treaty Office, https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/005/declarations?p_auth=8PL9eBer (accessed on 12 April 2018).
Letter from the Turkish Permanent Representative to the Secretary General withdrawing the derogation notified on 21 July 2016, 8 August 2018.
Statement by the North Atlantic Council, NATO press release (2001)124, 12 September 2001, http://www.nato.int/docu/pr/2001/p01-124e.htm (accessed 28 July 2015). See also UNSC Resolution 1368 of the same date.
US Government, National Commission on Terrorist Attacks Upon the United States, The 9/11 Commission Report, pp. 145-169, http://govinfo.library.unt.edu/911/report/911Report.pdf (accessed 28 July 2015).
A. and Others v. the United Kingdom § 11.
Greece v. the United Kingdom, no. 176/56, Commission decision of 2 June 1956.
Article 31 of the Convention (1950 text).
Greece v. the United Kingdom, § 130.
ibid., § 132.
ibid., § 139.
ibid., § 136.
ibid., § 287.
ibid., § 297.
ibid., § 318.
ibid., § 337.
ibid., § 363.
Tyrer v. the United Kingdom, no. 5856/72, §§ 14-15, Series A no. 26.
Greece v. the United Kingdom, § 235.
Greece v. the United Kingdom (no. 2), no. 299/57, Commission report of 8 July 1959.
Lawless v. Ireland, no. 332/57, Commission report of 19 December 1959, § 2; Lawless v. Ireland (No. 3), judgment of 1 July 1961, § 19, Series A no. 3.
Lawless (No. 3), §§ 9 and 15.
Lawless (No. 3), §§ 36-37.
Nos. 3321/67, 3322/67, 3323/67 and 3344/67 respectively.
Denmark, Norway, Sweden and the Netherlands v. Greece, nos. 3321/67, 3322/67, 3323/67 and 3344/67 (the âGreek Caseâ), Commission report of 5 November 1969.
ibid., §§ 27 and 49.
ibid., §§ 115-125.
ibid., §§ 142-144.
ibid., §§ 198-201 (Article 5); §§ 231-234 (Article 6); § 251 (Article 8); §§ 274-276 (Articles 9 and 10); §§ 296-300 (Article 11); § 305 (Article 13); §§ 319-320 (Article 3 of Protocol No. 1).
ibid., §§ 327-328.
ibid., § 329.
The âGreek Caseâ, nos. 3321/67, 3322/67, 3323/67 and 3344/67, Committee of Ministers resolution DH (70)1 of 15 April 1970.
Brogan and Others v. the United Kingdom, nos. 11209/84, 11234/84, 11266/84 and 11386/85, §§ 55-62, Series A no. 145-B.
Quoted in Brannigan and McBride v. the United Kingdom, nos. 14553/89 and 14554/89, § 31, Series A no. 258-B.
Brannigan and McBride, § 43.
ibid., § 56.
ibid., §§ 58-59.
ibid., § 64.
ibid., § 73.
Marshall v. the United Kingdom (dec.), no. 41571/98, 10 July 2001.
Letters of the Permanent Representative of the Turkish Republic to the Secretary General of the Council of Europe, 6 August 1990 and 5 May 1992; Aksoy v. Turkey, no. 21987/93, §§ 31-33, Reports 1996-VI.
Aksoy, § 31.
ibid., § 70.
Aksoy, §§ 77-78. See also Demir and Others v. Turkey, nos. 21380/93, 21381/93 and 21383/93, §§ 49-57, Reports 1998-VI (incommunicado detention for at least sixteen or twenty-three days); Nuray Åen v. Turkey, no. 41478/98, §§ 25-29, 17 June 2003 (eleven days before the applicant was brought before a judge or other judicial officer); Elci and Others v. Turkey, nos. 23145/93 and 25091/94, § 684, 17 June 2003 (detention not âin accordance with a procedure prescribed by lawâ in that the lawful authority of a âjudge or other officerâ was entirely lacking); and Bilen v. Turkey, no. 34482/97, §§ 44-50, 21 February 2006 (eighteen days before the applicant was brought before a judge or other judicial officer).
Sakık and Others v. Turkey, nos. 23878/94, 23879/94, 23880/94, 23881/94, 23882/94 and 23883/94, § 39, Reports 1997-VII. See also Sadak v. Turkey, nos. 25142/94 and 27099/95, § 56, 8 April 2004; Yurttas v. Turkey, nos. 25143/94 and 27098/95, § 58, 27 May 2004; and Abdülsamet Yaman v. Turkey, no. 32446/96, § 69, 2 November 2004.
Loof, p. 625.
Quoted in A. and Others v. the United Kingdom, § 11.
Chahal §§ 79-80.
Immigration Act 1971 and R. v. Governor of Durham Prison, ex parte Hardial Singh, [1984] 1 Weekly Law Reports 704, cited in A. and Others, § 87.
Section 23 of the Anti-terrorism, Crime and Security Act 2001, quoted in A. and Others, § 90.
Privy Councillor Review Committee, Anti-terrorism, Crime and Security Act 2001 Review, Ordered by The House of Commons to be printed 18th December 2003, §§ 193-94; see A. and Others, §§ 98-99.
Joint Parliamentary Committee on Human Rights, Second Report of the Session 2001-02, § 38, and Sixth Report of the Session 2003-04, §§ 42-44, quoted in A. and Others, § 100.
Opinion of the European Commissioner for Human Rights, Mr Alvaro Gil-Robles, on certain aspects of the United Kingdom 2001 derogation from Article 5 par. 1 of the European Convention on Human Rights, 28 August 2002, CommDH(2002)7, § 33).
ibid., § 37.
Concluding observations of the Committee on the Elimination of Racial Discrimination, United Kingdom of Great Britain and Northern Ireland, CERD/C/63/CO/11, § 17.
For a summary of the domestic proceedings, see A. and Others, §§ 14-23.
A. and Others, § 18.
ibid., § 20.
ibid., § 21.
ibid., § 23.
United Kingdom, Human Rights Act 1998, section 4 (6) (a) and (b).
A. and Others, §§ 130-136.
cf. Pine Valley Developments Ltd. and Others v. Ireland, no. 12742/87, § 47, Series A no. 222.
A. and Others, §§ 153-59.
See, among many other authorities, Chahal, § 113.
A. and Others, § 168.
ibid., §§ 170-172.
ibid., §§ 177-180.
ibid., § 182.
ibid., § 184.
ibid., §§ 187-190.
See 4.5 above.
Mehmet Hasan Altan, § 81; Åahin Alpay, § 65. See also the web site of the Council of Europeâs Treaty Office, https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/005/declarations?p_auth=8PL9eBer (accessed on 12 April 2018).
Mehmet Hasan Altan § 93; Åahin Alpay, § 76
Mehmet Hasan Altan, §§ 138-139; Åahin Alpay, §§ 117-118.
Mehmet Hasan Altay, §§ 140 and 213; Åahin Alpay, §§ 119 and 183.
Mehmet Hasan Altay, §§ 165-167; Åahin Alpay, §§ 137-139.
Venice Commission, Opinion on the protection of human rights in emergency situations, CDL-AD(2006)015, § 10. Emphasis in the original.
With regard to cyber-attacks, see generally Jack Goldsmith, How Cyber Changes the Laws of War, EJIL (2013), Vol. 24 No. 1, 129-138, and Lieutenant Ken M. Jones, USN, Cyber War: The Next Frontier For NATO, Progressive Management, 2016.
J.G.C. Schokkenbroek, Toetsing aan de vrijheidsrechten van het Europees verdrag tot bescherming van de rechten van de mens (diss. Leiden 1996), pp. 15-18; Michael OâBoyle, âThe Margin of Appreciation and Derogation under Article 15: Ritual Incantation or Principle?â, 19 HRLJ (1998) p. 23. For a critical appraisal, see Gross, O., and Nà Aoláin, F., âFrom Discretion to Scrutiny: Revisiting the Application of the Margin of Appreciation Doctrine in the Context of Article 15 of the European Convention on Human Rightsâ, Human Rights Quarterly 23 (2001) 625-649, passim; see also Bart van der Sloot, âIs All Fair in Love and War? An Analysis of the Case Law on Article 15 ECHRâ, in Military Law and the law of War Review 53/2 (2014), pp. 319-358 at pp. 325-326.
Michael OâBoyle, ibid., at p. 25 (citing R. St.J. Macdonald, âThe Margin of Appreciation in the Jurisprudence of the European Court of Human Rightsâ, Collected Courses of the Academy of European Law (1990), Vols. I-II).
Jean-Paul Costa and Michael OâBoyle, âThe European Court of Human Rights and International Humanitarian Lawâ, in The European Convention on Human Rights: a living instrument, Essays in Honour of Christos L. Rozakis (Bruylant, 2011), pp. 107-129 at p. 115.
Ireland v. the United Kingdom, § 205; Brannigan and McBride, § 47; Aksoy, § 70.
Sakık and Others, § 39.
Reference to United Nations Human Rights Committee, General Comment No. 29 on Article 4 of the ICCPR (24 July 2001), paragraph 2.
Ireland v. the United Kingdom, Brannigan and McBride, Marshall.
R. St.J. Macdonald, âDerogations under Article 15 of the European Convention on Human Rightsâ, [1997] 36 Columbia Journal of Transnational Law p. 225 at p. 236.
cf. Article 13 of the Convention. See also Michael OâBoyle, âEmergency Government and Derogation under the ECHRâ, [2016] E.H.R.L.R. p. 331 at p. 333.
Macdonald (1997), at p. 249; Loof, p. 386.
A. and Others, § 177.
See also Bart van der Sloot, âIs All Fair in Love and War? An Analysis of the Case Law on Article 15 ECHRâ, in Military Law and the law of War Review 53/2 (2014), pp. 319-358 at p. 348. For a very different view, see Michael OâBoyle, âEmergency Government and Derogation under the ECHRâ, [2016] E.H.R.L.R. p. 331 at p. 336.
Gross, O., and Nà Aoláin, F., âFrom Discretion to Scrutiny: Revisiting the Application of the Margin of Appreciation Doctrine in the Context of Article 15 of the European Convention on Human Rightsâ, Human Rights Quarterly 23 (2001) 625-649 at p. 639.
Brannigan and McBride, dissenting opinion of Judge Martens, § 4.
Gross, O., and Nà Aoláin, F., âFrom Discretion to Scrutiny: Revisiting the Application of the Margin of Appreciation Doctrine in the Context of Article 15 of the European Convention on Human Rightsâ, Human Rights Quarterly 23 (2001) 625-649 at p. 642. The point is also made in Mariniello, T., âProlonged Emergency and Derogation of Human Rights: Why the European Court Should Raise Its Immunity Systemâ, to appear in German Law Journal (forthcoming 2019), available on https://www.academia.edu/ (last accessed 26 June 2018).
See 4.5.1.9 above.
For this definition of terrorism, see 4.3.2.2 and footnote 266 above.
Mehmet Hasan Altan, § 92; Åahin Alpay, § 76.
Cases in which the death penalty is in issue are very rare in the case-law of the Commission and the Court, most Contracting States having ceased executing it or abolished it altogether before ratifying or acceding to the Convention or accepting the right of individual petition. An exception is Turkey, which became a Party to Protocol No. 6 only on 1 December 2003. On 30 November 1999 the Court indicated a provisional measure to Turkey under Rule 39 of the Rules of Court to the effect that the death sentence imposed on Abdullah Ãcalan should not be carried out pending the outcome of the proceedings before it (Ãcalan v. Turkey (GC), no. 46221/99, § 5, ECHR 2005-IV). See also leges posteriores Articles 1 and 2 of Protocol No. 6 and Articles 1 and 2 of Protocol No. 13, discussed in 4.7.5 below.
Article 2 § 2 of the Convention.
Kirby Abbott, âA brief overview of legal interoperability challenges for NATO arising from the interrelationship between IHL and IHRL in light of the European Convention on Human Rightsâ, International Review of the Red Cross, vol. 96, no. 893, pp. 107-37 at p. 127.
Evangelia Vasalou, âLes rapports normatifs entre le droit international humanitaire et la Convention européenne des droits de lâhomme : Le droit international humanitaire, une lex specialis par rapport a la Convention européenne des droits de lâhomme ?â, Revue trimestrielle des droits de lâhomme (112/2017), pp. 953-987 at p. 960.
See 1.2.4.2 above.
Kirby Abbott, âA brief overview of legal interoperability challenges for NATO arising from the interrelationship between IHL and IHRL in light of the European Convention on Human Rightsâ, International Review of the Red Cross, vol. 96, no. 893, pp. 107-37 at p. 124.
A similar view is expressed by Anne-Marie Baldovin, âImpact de la jurisprudence récente de la Cour européenne des droits de lâHomme sur la planification et lâexécution des opérations militaires à venir : Application extraterritoriale de la Convention, imputabilité des faits des troupes et fragmentation du droit internationalâ, in Military Law and the Law of War Review 50/3-4 (2011), pp. 369-418 at p. 404.
See 2.2.2 above.
And indeed from international humanitarian law, on which subject, see 4.9 below. Compare International Committee of the Red Cross, IHL Database, https://ihl-databases.icrc.org/customary-ihl/eng/docs/home, Rule 158, with further references (accessed on 5 September 2018).
Nils Melzer, Targeted killing in international law, Oxford University Press 2008, p. 122.
Preamble to the Convention.
See also Bethlehem, supra note 233, at p. 237.
For example, Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (Cambridge University Press, 3rd ed. 2016), p. 42, § 116.
cf. Varnava and Others, § 185, ECHR 2009; see also Bethlehem at p. 239 and Sicilianos (2015) at p. 12.
For example, Kasap and Others v. Turkey, no. 8656/10, § 58, 14 January 2014, and Armani da Silva, § 238.
House of Lords and House of Commons, Joint Committee on Human Rights, The Governmentâs policy on the use of drones for targeted killing, Second Report of Session 2015â16, paragraph 3.62.
See 4.9 below.
Contra Helen Duffy, The âWar on Terrorâ and the Framework of International Law (2nd edition 2015), Cambridge University Press, p. 577.
Christof Heyns, Dapo Akande, Lawrence Hill-Cawthorne and Thompson Chengeta, âThe International Framework Regulating the Use of Armed Dronesâ, ICLQ vol 65, October 2016, pp. 791-827 at pp. 818-821. See also PACE Resolution 2051 (2015) on Drones and targeted killings: the need to uphold human rights and international law (23 April 2015), paras 6.3 and 6.4.
MilanoviÄ and Hadži-VidanoviÄ, supra note 250, p. 309; see also Helen Duffy, The âWar on Terrorâ and the Framework of International Law (2nd edition 2015), Cambridge University Press, pp. 417-420.
Ireland v. the United Kingdom, § 163; see also Andrew Drzemczewski, âIreland v. U.K.â, [1978] 12 The Law Teacher 1 p. 49 at p. 52.
cf., mutatis mutandis, Van Anraat, §§ 89-91.
Siliadin v. France, no. 73316/01, § 122, ECHR 2005-VII; Rantsev v. Cyprus and Russia, no. 25965/04, § 276, ECHR 2010, with further references.
Rantsev, ibid.
Rantsev, ibid.
Karlheinz Schmidt v. Germany, no. 13580/88, § 23, Series A no. 291-B.
Zarb Adami v. Malta, no. 17209/02, § 47, ECHR 2006-VIII.
Bayatyan v. Armenia (GC), no. 23459/03, §§ 123-127, ECHR 2011; see Petr Muzny, âBayatyan v Armenia: The Grand Chamber Renders a Grand Judgmentâ, Human Rights Law Review 12:1(2012), 135-147.
Korbely, §§ 81-85.
UN Doc. E/CN.4/353/Add.2 (Comments of Governments on the draft International Covenant on Human Rights and measures of implementation), quoted in the Preparatory Work on Article 7 of the European Convention on Human Rights, Council of Europe document DH (57) 6).
Touvier v. France, no. 29420/95, Commission decision of 13 January 1997, DR 88-B p. 148 at p. 161; Papon v. France (dec.), no. 54210/00, ECHR 2001-XII.
Charter of the International Military Tribunal (Nuremberg Tribunal), annexed to the London Agreement of 8 August 1945, 82 UNTS 280.
UNGA Res. 95 (I), 11 December 1946 (Affirmation of the Principles of International Law recognized by the Charter of the Nürnberg Tribunal).
Nuremberg Principles, Yearbook of the International Law Commission, 1950, Vol. II, pp. 374-378.
Rome Statute of the International Criminal Court, circulated as document A/CONF.183/9 of 17 July 1998 and corrected by proces-verbaux of 10 November 1998, 12 July 1999, 30 November 1999, 8 May 2000, 17 January 2001 and 16 January 2002. Available for download on the web site of the International Criminal Court.
Convention on the Prevention and the Punishment of the Crime of Genocide, 78 UNTS 277.
Convention against torture and other cruel, inhuman or degrading treatment or punishment, 1465 UNTS 85.
Preamble to Protocol No. 13, paragraphs 3 and 4.
Ãcalan v. Turkey [GC], no. 46221/99, §§ 162-165, ECHR 2005-IV; see also Al-Saadoon and Mufdhi, § 120 (âThese figures, together with consistent State practice in observing the moratorium on capital punishment, are strongly indicative that Article 2 has been amended so as to prohibit the death penalty in all circumstances.â)
Marguš; see paragraph 3.4.4 above.
See 4.7.3 above.
Loof, p. 530, with further references.
Loof, p. 538.
Loof, p. 540-550.
Loof, p. 543.
Article 26 of the Covenant is not among the non-derogable Articles enumerated in Article 4 § 2.
Macdonald (1997) at p. 264.
A. and Others, §§ 190 and 192.
Ireland v. the United Kingdom, separate opinion of Judge Matscher, in fine.
SejdiÄ and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, § 55, ECHR 2009.
Thlimmenos v. Greece (GC), no. 34369/97, § 44, ECHR 2000-IV.
Hassan, §§ 105-107.
See 4.9 below.
International Committee of the Red Cross, Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949, Commentary of 1960 (Article 105).
International Committee of the Red Cross, Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949, Commentary of 1958 (Article 71).
International Committee of the Red Cross, Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Commentary of 2016 (Article 3).
The Court goes no further than to refer to âthe prominent place held in a democratic society by the right to a fair trialâ, as for example in Al-Dulimi and Montana Management Inc. v. Switzerland (GC), no. 5809/08, § 127, ECHR 2016.
loc. cit., footnote 562: Belilos v. Switzerland, no. 10328/83, § 64, Series A no. 132; Findlay v. the United Kingdom, no. 22107/93, Reports 1997-I, §§ 73-77, Reports 1997-I.
Human Rights Committee, General Comment no. 29, States of Emergency (Article 4), CCPR/C/21/Rev.1/Add.11, 31 August 2001, §§ 13-16 and footnote 9.
Macdonald (1997), p. 243.
A. and Others, § 186.
Loof, p. 379; Gross, O., and Nà Aoláin, F., âFrom Discretion to Scrutiny: Revisiting the Application of the Margin of Appreciation Doctrine in the Context of Article 15 of the European Convention on Human Rightsâ, Human Rights Quarterly 23 (2001) 625-649 at p. 644.
Brannigan and McBride, dissenting opinion of Judge Martens, § 4.
See also OâBoyle (2016), p. 339.
See 6.7 below.
See 4.7.7 above.
See the summary set out in Abdulkhanov v. Russia, no. 14743/11, § 212, 2 October 2012.
See Article 2 of Protocol No. 7.
Loof, p. 388-389.
Loof, p. 592.
supra note 454.
Loof, p. 592.
Van Anraat v. the Netherlands, supra note 207.
Stichting Mothers of Srebrenica and Others v. the Netherlands (dec.), no. 65542/12, ECHR 2013.
Brannigan and McBride, § 73.
Greece v. the United Kingdom, § 158.
The âGreek Caseâ, § 46.
Mehmet Hasan Altan, § 89; Åahin Alpay, § 73.
OâBoyle (2016), p. 335.
Mehmet Hasan Altan, § 89; Åahin Alpay, § 73.
As Ukraine did (see footnote 251 above).
Compare Jaloud, §§100-103 and 138.
See 1.2.4.2 above.
See 3.4.2 above.
Bart van der Sloot, âIs All Fair in Love and War? An Analysis of the Case Law on Article 15 ECHRâ, in Military Law and the law of War Review 53/2 (2014), pp. 319-358 at p. 350.
In a similar sense, see Marko Milanovic, âExtraterritorial Derogations from Treaties in Armed Conflictâ, in The Frontiers of Human Rights: Extraterritoriality and its Challenges, Collected Courses of the Academy of European Law, vol. XXIV/1, p. 55-88 at p. 71. See also Leuven Manual on the International Law Applicable to Peace Operations (Terry D. Gill, Dieter Fleck, William H. Boothby and Alfons Vanheusden, general eds; Marco Benatar and Remy Jorritsma, assistant eds.), Cambridge University Press 2017, pp. 85-88.
Tugendhat and Croft, The Fog of Law: An introduction to the legal erosion of British fighting power, https://policyexchange.org.uk/wp-content/uploads/2016/09/the-fog-of-law.pdf (last accessed on 16 October 2016) pp. 12 and 58-60.
Corpus Iuris Civilis, D.50.17.185.
See 4.6 above.
See 4.3.2.2 above.
Kjetil MujezinoviÄ Larsen, The Human Rights Treaty Obligations of Peacekeepers, Cambridge University Press 2012, pp. 312-13.
There are interstate cases between Ukraine and the Russian Federation pending before the Court: these include, among others, Ukraine v. Russia (re Crimea), no. 20958/14, communicated on 25 November 2014 and 29 September 2015, and Ukraine v. Russia (re Eastern Ukraine), no. 42410/15, communicated on 29 September 2015.
cf. International Criminal Court, Office of the Prosecutor, Report on Preliminary Examination Activities 2016, §§ 158 (âThe information available suggests that the situation within the territory of Crimea and Sevastopol amounts to an international armed conflict between Ukraine and the Russian Federationâ) and 169 (âAdditional information, such as reported shelling by both States of military positions of the other, and the detention of Russian military personnel by Ukraine, and vice-versa, points to direct military engagement between Russian armed forces and Ukrainian government forces that would suggest the existence of an international armed conflict in the context of armed hostilities in eastern Ukraine from 14 July 2014 at the latest, in parallel to the non-international armed conflict.â) See also footnotes 24 and 25 above and Sergey Sayapin, âRussiaâs Withdrawal of Signature from the Rome Statute Would not Shield its Nationals from Potential Prosecution at the ICCâ, EJIL:Talk!, 21 November 2016.
S/2015/928, 3 December 2015 (United Kingdom); S/2015/946, 10 December 2015 (Germany); S/2016/34, 13 January 2016 (Denmark); S/2016/132, 10 February 2016 (Netherlands); S/2016/513, 3 June 2016 (Norway); S/2016/523, 9 June 2016 (Belgium). See Marko Milanovic, http://www.ejiltalk.org/belgiums-article-51-letter-to-the-security-council/ (accessed on 19 June 2016) and Monica Hakimi and Jacob Katz Cogan, http://www.ejiltalk.org/a-role-for-the-security-council-on-defensive-force/ (accessed on 22 November 2016).
Identical letters dated 20 January 2018 from the Chargé dâaffaires a.i. of the Permanent Mission of Turkey to the United Nations addressed to the Secretary-General and the President of the Security Council, S/2018/53. See also Anne Peters, âThe Turkish Operation in Afrin (Syria) and the Silence of the Lambsâ, EJIL:Talk!, 30 January 2018.