Extraterritorial Application of the European Convention on Human Rights in Military Operations – Recent Developments

This background paper examines how the European Convention on Human Rights (ECHR) applies to military operations abroad. The topic has gained renewed attention due to the fighting in Nagorno-Karabakh and the ongoing war in Ukraine, which have led to a record number of inter-state complaints and individual applications before the European Court of Human Rights (ECtHR) in Strasbourg. The outcome in those proceedings is not only important for the parties involved. It may also be of high relevance for other Council of Europe (CoE) member states, including Denmark, with regard to their future military operations. This explains their active participation through third-party interventions in the case of Ukraine and the Netherlands v. Russia.

Most central in the pending cases on Ukraine and Nagorno-Karabakh is the issue of extraterritorial jurisdiction. While there is agreement on many situations in which the ECHR may apply abroad, combat situations continue to be the most contentious issue. In Georgia v. Russia (II), the Court held that the ECHR did not apply to killings during the active phase of hostilities. It is yet to the seen whether the judges will depart from this approach or significantly limit its reach in the upcoming cases. The Court may choose to emphasise the regional character of the armed conflicts at hand, where both belligerents are CoE member states.

The fact that there is wide agreement among states (including Denmark) that the ECtHR should take into account applicable rules of IHL (e.g. on distinction, proportionality and precaution) shows that there is no need for the Court to exclude hostilities from the scope of jurisdiction under the ECHR. Indeed, those rules are essential to assess whether a killing of civilians amounts to a violation of the right to life (Article 2 ECHR). Another question is whether the Court will follow the approach of other bodies and actively include the so-called jus ad bellum (i.e. prohibition on the use of force) in its assessment, especially in relation to Russia’s illegal war of aggression. Whether this is a viable solution for those proceedings and how it could affect future military operations abroad, including those of Denmark and its allies, remains to be seen.