The obligation to investigate after a potential breach of article 2 ECHR in an extra-territorial context: Mission impossible for the armed forces?
| Published date | 01 June 2019 |
| Date | 01 June 2019 |
| DOI | 10.1177/0924051919844374 |
| Author | Noëlle Quénivet |
| Subject Matter | Articles |
Article
The obligation to investigate
after a potential breach
of article 2 ECHR in an
extra-territorial context:
Mission impossible for the
armed forces?
Noe
¨lle Qu´
enivet
Associate Professor, International Law, Bristol Law School, University of the West of England, Bristol, UK
Abstract
The growing number of military operations conducted by States Party to the European
Convention on Human Rights abroad has led to a concomitant surge in court cases, notably
relating to the duty to investigate an attack resulting in the death of an individual. Using the example
of the British armed forces abroad, this article contends that the principles enunciated by the
European Court are difficult, sometimes impossible, to fulfil when military operations are carried
out abroad. The Court at times appears to fail to recognise the inherent challenges faced by States
in complying with these principles. This article thus suggests that the Court offers a more flexible
approach towards compliance with the procedural aspects demanded under Article 2 ECHR,
especially regarding the initial phases of the application of Article 2 ECHR, when the armed forces
are directly implicated in the procedure.
Keywords
Armed forces, investigation, extra-territorial application, Article 2 European Convention on
Human Rights
Corresponding author:
Noe
¨lle Qu´
enivet, Associate Professor, International Law, Head of the International Law and Human Rights Unit, Bristol Law
School, University of the West of England, UK.
E-mail: noelle.quenivet@uwe.ac.uk
Netherlands Quarterly of Human Rights
2019, Vol. 37(2) 119–138
ªThe Author(s) 2019
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DOI: 10.1177/0924051919844374
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Introduction
In the past few years, the growing number of military operations
1
conducted by States Party to the
European Convention on Human Rights (‘ECHR’ or ‘Convention’) abroad, combined with a broad
definition of the notion of jurisdiction under Article 1 ECHR,
2
has led to a concomitant surge in
cases brought before the European Court of Human Rights (‘ECtHR’ or ‘Court’). One of the
contentious issues has been the challenges brought about by the application of the procedural
aspect of Article 2 ECHR that guarantees the right to life. Despite this, little attention is paid in
academic literature to the procedural aspect of Article 2 ECHR which requires States conducting
military operations to carry out an appropriate investigation into the lawfulness of the use of force.
3
Even fewer scholars examine this duty in an extra-territorial context,
4
none offering a compre-
hensive overview of the application of all the legal requirements concerning this duty. This article
seeks to remedy this gap by examining the application of the procedural aspects relating to Article
2 in armed conflicts abroad.
States must comply with the duty to investigate an attack resulting in the death of an individual.
5
The procedural requirement is implicit in Article 2 ECHR,
6
as ‘a general legal prohibition of
arbitrary killing by the agent of the State would be ineffective, in practice, if there existed no
procedure for reviewing the lawfulness of the use of lethal force by State authorities’.
7
Conse-
quently, States are required to provide a system of ‘adequate and effective safeguards against
arbitrariness and abuse of force and even against avoidable accident’.
8
1. In this article, the term ‘military operations’ covers operations in situations of armed conflict (whether international or
non-international), occupation, as well as multinational military operations undertaken under the mandate of interna-
tional organisations.
2. For a discussion on the concept and the extra-territorial applicability of the ECHR, see, e.g. Marko Milanovic´,
Extraterritorial Application of Human Rights Treaties. Law, Principles and Policy (OUP 2013); Karen Da Costa, The
Extraterritorial Application of Selected Human Rights Treaties (Martinus Nijhoff 2013).
3. Juliet Chevalier-Watts, ‘Effective Investigations under Article 2 of the European Convention on Human Rights:
Securing the Right to Life or an Onerous Burden on a State?’ (2010) 21 EJIL 701; Hannah Russell, The Use of Force and
Article 2 of the ECHR in Light of European Conflicts (Hart 2017) ch 7 (Duty to Investigate Suspicious Deaths), 121;
Silvia Borelli, ‘Domestic Investigation and Prosecution of Atrocities Committed during Military Operations: The Impact
of Judgments of the European Court of Human Rights’ (2013) 46 Israel L Rev 369; Eva Biotti and Julie De Cillia,
‘L’obligation conventionnelle d’enqueˆte sur les atteintes `a la vie dans le contexte de conflits arm ´es’(2014) Revue des
Droits de l’Homme, accessed 10 July 2018; and the more recent Ian Park, The Right to
Life in Armed Conflict (OUP 2018) ch 2, 48.
4. Silvia Borelli, ‘Jaloud v Netherlands and Hassan v United Kingdom: Time for a Principled Approach in the Application
of the ECHR to Military Action Abroad’ (2015) 26 QIL, Zoom-in 25; Section 4.10 in Park (n 3) 142 (in relation to the
UK only).
5. McCann and Others v UK App no 18984/91 (ECtHR, 27 September 1995) para 161; McKerr v UK App no 28883/95
(ECtHR, 4 May 2001) para 111. On the general obligation to investigate, see also European Parliament, Resolution
2014/2567(RSP), 25 February 2014, para C; Parliamentary Assembly of the Council of Europe, Resolution 2021(2015),
23 April 2015, paras 6.4 and 8.4.
6. McCann and Others (n 5) para 161. See also Ergi v Turkey App no 66/1997/850/1057 (ECtHR, 28 July 1998) para 82;
Kaya v Turkey App no 22729/93 (ECtHR, 19 February 1998) paras 78 and 86; Gu
¨lec¸ v Turkey App no 21593/93 (ECtHR,
27 July 1998) para 81.
7. McCann and Others (n 5) para 161. See Eva Brems, ‘Procedural Protection. An Examination of Procedural Safeguards
Read into the Substantive Convention Rights’ in Eva Brems and Janneke Gerards (eds), Shaping Rights in the ECHR:
The Role of the European Court of Human Rights in Determining the Scope of Human Rights (CUP 2014) 137, 142.
8. Suleymanova v Russia App no 9191/06 (ECtHR, 12 May 2010) para 77.
120 Netherlands Quarterly of Human Rights 37(2)
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