Analysis: “Hanan v. Germany: applying the ECHR to United Nations international military operation without affecting States’ willingness and ability to engage in such operations?” by Frédéric Bouhon
On 16 February 2021, the Grand Chamber of the European Court of Human Rights (ECtHR) rendered an important judgment that adds new insights to its already complex case law regarding the extraterritorial applicability of the European Convention on Human Rights (the ‘Convention’). In the case Hanan v. Germany (application no. 4871/16), the Strasbourg-based Court confirmed the application of the Convention to German prosecution authorities in the context of an extraterritorial military operation within the framework of a mandate given by a resolution of the United Nations Security Council. This is therefore a particularly sensitive case, dealing both with the limits of the scope of the Convention and the effect it may have on military and geopolitical issues.
The facts at the origin of this case have been summarised here. It can at least be recalled that the applicant alleged that Germany had not conducted an effective investigation, as required by the procedural limb of Article 2 of the Convention, into an airstrike of 4 September 2009 near Kunduz, Afghanistan, that had killed his two sons, and many other civilian victims. The tragedy had occurred during a bombing which targeted two fuel tankers hijacked by Taliban insurgents. The decision to proceed with this operation had been taken by a German officer, who commanded the military element of the Provincial Reconstruction Teams (PRT) of Kunduz, that was under control of the International Security Assistance Force (ISAF), led by NATO.
Even if the ECtHR held unanimously that there had been no violation of Article 2 (regarding the investigation performed by the German authorities), the judgement is still noteworthy as it states that a jurisdictional link for the purposes of Article 1 of the Convention in relation to the procedural obligation to investigate under Article 2 does exist in this case.
The fact that the ECHR can have extraterritorial effects is a well-known feature. Although the ECtHR interprets the concept of jurisdiction normally to encompass the national territory of member States, important extensions have been recognised. A State exercising military control over the territory of another State is thus considered to have jurisdiction within the meaning of Article 1 of the Convention – see Loizidou v. Turkey (application no. 15318/89). This also applies, for example, to the interception of a foreign flagged ship on the high seas – see Medvedyev and others v. France (application no. 3394/03). As a consequence, in certain circumstances, more than one State may be considered responsible for the application of the Convention in a given place: both the State which territory is concerned and the State exercising practical control over it may be involved – see Mozer v. the Republic of Moldova and Russia (application no. 11138/10).
Despite this trend towards extending the application ratione loci and ratione personae of the Convention, the ECtHR has been cautious when it comes to cases dealing with the participation of Member States in NATO or United Nations operations – see Banković and others v. Belgium and others (application no. 52207/99) and Behrami and Behrami v. France and Saramati v. France, Germany and Norway (application nos. 71412/01 and 78166/01). In the Behrami case, it has been held that the Convention could not be interpreted in such a way as to place the actions and omissions of contracting parties covered by Security Council resolutions and committed prior to or during UN missions under the control of ECtHR. In particular, the ECtHR considered the fact that this would amount to interference in the accomplishment of an essential mission of the UN in this field, or in the effective conduct of such operations. In the Banković decision, the ECtHR also held that ‘the Convention has not been designed to be applied throughout the world, even in respect of the conduct of Contracting States’ (§ 80).
However, this case law has already evolved towards more nuanced assessments in recent years, especially since Al-Skeini and others v. the United Kingdom (application no. 55721/07). For example, the ECtHR thus recognised that a Member State could have been held responsible for the application of the Convention in the context of international military operations in Iraq – Jaloud v. the Netherlands (application no. 47708/08), even in the active hostilities phase of an international armed conflict – Hassan v. United Kingdom (application no. 29750/09).
In the recent case law regarding the obligation to investigate on the basis of Article 2 of the Convention, the ECtHR has found that, if the authorities of a Contracting State institute their own criminal investigation or proceedings concerning a death which has occurred outside the jurisdiction of that State, by virtue of their domestic law, the institution of that investigation or those proceedings is sufficient to establish a jurisdictional link for the purposes of Article 1 between that State and the victim’s relatives who later bring proceedings before the ECtHR – see Güzelyurtlu and Others v. Cyprus and Turkey (application no. 36925/07). In the same decision, the ECtHR added that ‘[w]here no investigation or proceedings have been instituted in a Contracting State, according to its domestic law, in respect of a death which has occurred outside its jurisdiction, the ECtHR will have to determine whether a jurisdictional link can, in any event, be established for the procedural obligation imposed by Article 2 to come into effect in respect of that State’ (§ 190).
The Hanan v. Germany decision takes place in this case law context. In the view of the German Government, the Behrami and Banković jurisprudence would be broken, should the ECtHR find that the investigations carried out by the German authorities after the bombing were sufficient to establish a jurisdictional link in the sense of the Güzelyutlu decision. Several other governments that had also taken part in international military operations intervened as third parties to support the German point of view. They argued that such an interpretation could risk resulting in a universal application of the Convention. In their opinion, ‘[t]his could affect States’ willingness and ability to engage in multilateral military operations abroad and could have a chilling effect on States instituting investigations’ (Hanan, § 125).
In its assessment, the ECtHR considered that there were significant differences between the Güzelyutlu and Hanan cases. In its opinion, the principle that the institution of a domestic criminal investigation concerning deaths ‘is in itself sufficient to establish a jurisdictional link between that State and the victim’s relatives […] does not apply to the factual scenario at issue’ (Hanan, § 135). According to the ECtHR, the main difference lies in the fact that the investigation conducted by the German prosecution authorities had occurred in the context of an extraterritorial military operation within the framework of a mandate given by a resolution of the UN Security Council acting under Chapter VII of the UN Charter, outside the territory of the Contracting States to the Convention.
It does not mean, however, that the Convention was not applicable. The ECtHR confirmed that a jurisdictional link can also be established ‘in view of the “special features” of that case’ (Hanan, § 136). The Grand Chamber found that such special features existed in the case at stake. Its reasoning was based on three cumulative elements: Germany was obliged to carry out an investigation on the basis of both national law (1) and international humanitarian law (2), while the Afghan authorities had been, for legal reasons, prevented from instituting themselves a criminal investigation (3). In conclusion, the fact that German authorities had retained mandatory and exclusive jurisdiction over their troops triggers the existence of a jurisdictional link in relation to the procedural obligation to investigate under Article 2.
On the one hand, this judgment confirms the application of the Convention to situations which were at the limit of its reach until now. On the other hand, the ECtHR maintained a cautious attitude with regard to international military operations, which is confirmed by a number of considerations. Firstly, it appears that Germany’s obligation to investigate did not go further than what was required by its domestic law and international law outside the Convention. Secondly, the ECtHR recalled that it did ‘not overlook the restrictions on Germany’s legal powers to investigate in Afghanistan, nor the fact that the deaths to be investigated occurred in the context of active hostilities’ (Hanan, § 145). Thirdly, the ECtHR added that its assessment applied only to the procedural limb of Article 2 and that it does not follow from the mere establishment of a jurisdictional link that the substantive act falls within the jurisdiction of the Contracting State (Hanan, § 143).
The case thus reveals that the ECtHR sought to achieve a complex balance in the face of delicate issues: applying the Convention, in special circumstances, to extraterritorial international military operations, even when they are within the framework of a UN mandate, without affecting States’ willingness and ability to engage in such operations, and without having a chilling effect on instituting investigations at the domestic level into deaths occurring in that context.
Frédéric Bouhon is a Professor at the University of Liège.