As we prepare to celebrate the 70th anniversary of the European Convention on Human Rights (âthe Conventionâ) in 2020, we are reminded that the text of the Convention was drafted only a few years after the end of the Second World War, the bloodiest conflict in human history so far. So how should we see the Convention? As a peacetime treaty or one marked by the experiences of two World Wars? Conflict and war form the backdrop of this engaging book by a long-serving member of the Registry of the European Court of Human Rights. As President of the Court, I am pleased to be able to provide a foreword to this important piece of legal scholarship on the law of the European Convention on Human Rights.
The book suggests that in making deliberate provision for derogation in time of war or other public emergency threatening the life the nation, the drafters of the Convention were adopting a practical approach appropriate to the reality of warlike Europe. It is worth remembering that the Convention itself entered into force at least a decade and a half before International Covenant on Civil and Political Rights. According to the author many of the drafters would have seen active service themselves in the First World War. He contrasts this position to the drafters of the International Covenant whose idealist quest purported to ban war altogether.
Indeed, when looking at the Courtâs case-law, we can see that the Court has had to address numerous situations of conflict resulting in the use of military force that have occurred on the continent. Although the vast majority of applications before the European Court of Human Rights are lodged by individuals or groups of individuals, there have also been 24 inter-State cases since the Convention entered into force and at the time of writing 8 such applications are currently pending. A number have concerned situations of crisis or conflict. In addition to these inter-State cases there are thousands of individual applications before the Court related to conflict situations, such the armed conflict between Georgia and Russia in 2008 as well as the events in Crimea and the hostilities in Eastern Ukraine.
Can States resort to âhard powerâ and still remain within their obligations under the European Convention on Human Rights when there is legitimate need to do so? Is the Convention relevant to the conduct of hostilities at all? These are important questions which lie at the heart of this work and are answered in the affirmative by the author.
But what is âhard powerâ? The author borrows the term from the language of international relations. It encompasses all manner of coercive behaviour exercised by States. The author defines it to include targeted assassinations, UN and other peacekeeping operations, and acts of classic warfare. The main focus on the book is armed conflict, whether international or non-international.
The very applicability of the Convention â âArticle 1 jurisdictionâ â takes a prominent place in the analysis. The novelty of this book lies in the attempt to define the coherence between BankoviÄ and Others on the one hand and AlSkeini and Others on the other.
The book seeks to underline that application of the Convention to âhard powerâ has been rather overlooked. Its main importance will be understood as a study of how exactly the Convention applies to the role of the modern soldier. As the author himself states, it is designed to help the reader navigate through the tortuous channels of international human rights law and other branches of international law, such as international humanitarian law.
I would like to finish this foreword with a final word about the intriguing frontispiece. I have been informed that it is a sword, known as a klewang (its name in Indonesian). It is a weapon developed by the Dutch army at the turn of the twentieth century for use in counter-guerrilla warfare in what was then the Netherlands East Indies. It is probably the last type of sword issued by any army for use in active hostilities. As a brutal weapon it reminds us of the very serious subject-matter of this book.
Ultimately, the book attempts to convince the reader that the Convention leaves Contracting States room for manoeuvre in pursuing legitimate policy objectives in their use of âhard powerâ including in peace-keeping operations. Accordingly, the Convention retains its importance and usefulness in an increasingly dangerous world. This is an important birthday message.
Linos-Alexandre Sicilianos
President of the European Court of Human Rights (2019-2020)