APPLYING THE EUROPEAN CONVENTION ON HUMAN RIGHTS IN CONFLICT ZONES: RELEVANCE AND RESPONSIBILITY
Abstract
The occurrence of armed conflict and internal disturbances and tensions will pose considerable dangers for the enjoyment of human rights. The risk to them will come not simply from those whose resort to force and efforts to foment conflict and hostility is illegitimate — both are incompatible with the democratic society with which the European Court of Human Rights has emphasised the rights in the European Convention on Human Rights and its Protocols are inextricably linked — but also from the steps taken by a state to resist and defeat such force and efforts — notwithstanding that this may be required by the duty to safeguard the rights and freedoms of those within its jurisdiction — as it may disregard the requirements of the Convention in doing so.
Armed conflict entails the use of military forces, whether in an internal or international context, and internal disturbances and tensions are taken to be a sustained situation rather than an isolated incident (such as a riot). Neither may be so grave as to involve a threat to the life of the nation and thus justify the making of a derogation under Article 15 but in at least some circumstances this will be warranted. Both would appear to have implications for human rights in at least two discrete (even if potentially overlapping) situations, namely, in the course of the actual conflict or disturbance (ie, where force is actually being used) and in other parts of the country while such conflict or disturbance is taking place.
Action taken to deal with the conflict or disturbance in the former situation may not be acceptable in the latter one and the recognition that an all-embracing approach may be inappropriate will be important when making preparations before such situations arise, particularly as regards shaping the attitude of those who will ultimately be involved in restricting rights and freedoms.
The second part of this paper considers first the general considerations relating to the Convention that should inform measures taken in response to conflict and disturbance. It then looks at the way in which the Court has dealt with their application in the context of individual rights and freedoms. It concludes with suggestions for transforming the principles identified into a recommendation or guidelines. The third part of the paper examines the issue of responsibility under the Convention in conflict zones. Although this will not generally be problematic in most situations occurring in such zones, both their location and the possible involvement in situations occurring in them of not only more than one High Contracting Party to the Convention but also of non-parties and non-state actors raises the possibility of responsibility being shared, transferred and even ousted. The first and second of these possibilities reflects the complexity of the situation that may exist in a conflict zone but the third is disturbing as it means that the most significant human rights protection mechanism will no longer be available for those caught up in such a situation.
