The European Court of Human Rights' Incidental Application of International Criminal Law and Humanitarian Law
A Critical Discussion of Kononov v. Latvia
* PhD candidate, European University Institute. [giulia.pinzauti{at}eui.eu]
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Abstract |
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The European Court of Human Rights has the inherent jurisdiction to incidentally apply provisions pertaining to the domestic systems of the contracting states or belonging to other branches of international law (such as international criminal law and humanitarian law) whenever the Convention contains a renvoi to such bodies of law. Practice shows that the Court does apply these ‘external’ provisions, though not always accurately. For instance in the Kononov case, due to a misapprehension of the rules of humanitarian law on civilian immunity (and, as a consequence, of the secondary rules of international criminal law), the Court wrongly held that the respondent state breached Article 7 of the Convention in convicting the applicant of war crimes. As the Court declared itself competent to apply municipal law on the strength of the renvoi enshrined in the relevant provisions of the Convention, this article argues it should also have applied humanitarian law incidentally when dealing with human rights violations committed in time of armed conflict.
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1. Introduction |
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TopAbstract1. Introduction2. How Should the...3. The Application of...4. Concluding RemarksNotes |
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Endowed with the task of monitoring compliance by the states parties of the Council of Europe with the rights set forth in the European Convention on Human Rights (ECHR), the Strasbourg Court (henceforth ECtHR) applies the provisions of the treaty establishing it together with, if need be, customary provisions on human rights. This assertion, unquestionable in itself, only tells part of the truth. A question which deserves much careful consideration is whether the Court is also empowered to apply, and if so, to what extent, provisions of other branches of international law (such as international humanitarian law and international criminal law), or rules of the domestic legal systems of contracting states.
There would be compelling arguments to answer in the negative. First, in no clause of the Convention will one find explicit acknowledgment of such competence. Second, international adjudication rests on the agreement of states parties; thus an international court cannot unduly expand its competence ratione materiae without the consent of states. Third, human rights courts are not the appropriate forum to pronounce on claims revolving around the application of rules other than human rights law: international supervisory bodies competent in these other fields are already in place (some examples include international criminal tribunals, the International Committee of the Red Cross and Protecting Powers, the International Court of Justice), and possess greater expertise than the ECtHR in this regard. Fourth, arguably international courts are prevented from applying and even interpreting rules of municipal law, which belong to an entirely different and separate legal order; these rules should therefore be considered, from the perspective of international law, as a mere fact.
Notwithstanding these theoretical considerations, as a matter of fact the ECtHR (and, in earlier times, the European Commission of Human Rights (ECommHR), as well as other human rights monitoring bodies, which for space constraints will not be taken into consideration in this article) quite often do resort to the application of both domestic law and provisions of other fields of international law. This is the case, for instance, of judgments relating to the alleged violation of the principle of legality in criminal matters (nullum crimen sine lege) enshrined in Article 7 of the Convention. In such cases both national and international criminal law are almost inevitably called into question.1
This article critically analyses the judgment recently delivered by the ECtHR in the Kononov v. Latvia case, dealing with the alleged violation of the principle of legality for the applicant's conviction of war crimes for acts committed in occupied Latvia in 1944.2 The case is particularly interesting as it stands at the crossroads between three branches of international law: human rights law, international criminal law and international humanitarian law. While, on the one hand, it vividly exemplifies that the ECtHR makes extensive reference to both the criminal law and practice of the respondent state and international rules on war crimes, it also shows, on the other, some logical inconsistencies in the way the Court deals with those rules.
Before discussing the drawbacks in the Court's application of humanitarian law and international criminal law in the case at issue, there is a theoretical need to clarify (i) the legal foundation of the application of rules to which the court is seemingly not competent to resort; (ii) the proper way in which the Court should deal with provisions of municipal law, international criminal law and humanitarian law when deciding upon human rights issues. It is submitted that a critical assessment of the Kononov case provides a fitting opportunity to revisit the general legal problem of resort by the Court to bodies of law other than the European Convention. The case is also a landmark decision for the ECtHR's application of humanitarian law, a body of law to which the Court does not make express reference in its previous case law. On the basis of the Court's reasoning in Kononov and the more general analysis of its inherent power to apply provisions of other branches of international law, it is possible to make a strong argument that the European Court should incidentally apply humanitarian law and international criminal law, and it should do so accurately.
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2. How Should the ECtHR Correctly Deal with National and International Criminal Law? |
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A. The Legal Basis for the Application of ‘Outside’ Rules
Many provisions of the European Convention make renvois to other international rules or to domestic law. Indeed, the presence of renvois is a characteristic feature of the ECHR and human rights treaties in general.3 Here, however, I will confine myself to dealing with Article 7 only, which proclaims that:
1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than one that was applicable at the time the criminal offence was committed.The ECHR does not explicitly authorize the Court to apply substantive and procedural provisions of criminal law pertaining to either the domestic law of the respondent state or international criminal law. However the reference to ‘national or international law’, is in technical terms, a renvoi to those bodies of law. The effect of such a renvoi is to render the application of Article 7 conditional upon the way in which the external rules (namely, the applicable provisions of the criminal code of the respondent state or of international criminal law) regulate a given matter brought to the court. One should not be surprised at the presence of these references. International human rights law, as any other legal order, is not a monad, independent of and separated from its other counterparts. The various sectors of international law are closely intertwined and often the application of rules of one sector is contingent on the coming into play of rules pertaining to another sector. The same holds true for the interplay of human rights law and municipal law. The provisions of the various branches of international law must therefore be interpreted and applied respecting the unity and internal coherence of the international legal order. The purpose of renvois in the ECHR is precisely to link the treaty to rules of other bodies of international law or to some elements of domestic law that are relevant to its application. Applying the classification set out by the Italian international lawyer Sperduti in a classic book, it can be held that the renvoi made in Article 7(1), is a formal renvoi.4 This means two things. First, the renvoi establishes a connection between the ECHR and other sources of law. The ‘external’ provisions are not however incorporated or assimilated into the referring legal regime (the ECHR); consequently they do not become part of the body of law directly applicable by the judge (I will presently return to this point). Second, a link is established between the ECHR and a normative source (not a particular provision), which means that the Court has to take into account subsequent legislative and jurisprudential developments that may evolve in the external order on the subject matter at issue.2. This article shall not prejudice the trial or punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by civilised nations.
When a controversy on the alleged breach of Article 7 of the ECHR arises, the effect of the renvoi to ‘national and international law’ enshrined in that provision is to authorize the Court to resort to and apply substantive and procedural provisions of criminal law pertaining to ‘external’ sources. The Court's ruling on the alleged violation of the legality principle laid down in Article 7 (principal or primary question), is conditional upon the solution of another question, which is preliminary in nature (question préjudicielle): did the offence of which the applicant was convicted constitute a crime under either national or international law at the time of its commission? To solve that preliminary question the Court obviously has to take into consideration the relevant criminal provisions of the respondent state or, if need be, any international treaty or customary rules on international crimes, depending on the specific substance of the petitum. Plainly, solving the foregoing question préjudicielle is a necessary step for the Court to pronounce upon the alleged violation of Article 7.
Let us now briefly discuss the legal foundation of the ECtHR's power to apply legal rules other than the international rules on human rights enshrined in the Convention. According to some distinguished legal scholars, the authority of courts to apply rules to which they were seemingly not competent to resort can be inferred from the existence of a general principle of international law.5 This principle provides international courts with the power to determine all the preliminary questions whose resolution is necessary to rule on the principal question brought to the court. However, a different view can also be suggested, aimed at characterizing the power of international courts to settle preliminary questions arising in the decision on the merits as an inherent power, rather than the expression of a general principle of international law. Such power is indeed indispensable to, and inseparable from, the court's ruling on the principal question. In other words, it is intrinsic in the court's duty to properly perform its function as a court of law: should the court fail (or lack the power) to resolve all the preliminary questions that arise before it, it would be unable to pronounce on the merits of the claim.6 This latter view seems to be preferable, not only on logical grounds, but also because those courts that have passed judgment on the matter relied on the notion of inherent powers rather than on an alleged general principle of law.
B. To What Extent Can the ECtHR Apply National and International Criminal Law?
To define the extent to which human rights bodies can apply rules pertaining to ‘external’ sources, a distinction is needed between the judge's primary (or principal) and incidental jurisdiction.7 The former relates to the legal rules that the court is empowered to apply directly (or principaliter) to rule on the matter brought to the court. For instance, the ECtHR decides on the alleged violations of human rights; its principal jurisdiction is confined to the direct application of the provisions of the convention. Incidental jurisdiction (or compétence incidente), instead, covers the rules that the court can apply to settle a preliminary question whose resolution is necessary to decide on the principal question brought to the court. As pointed out above, an international body is empowered incidentally to rely on legal rules other than those it is mandated to apply under the treaty establishing it, or any agreement of the parties. These external rules are not applied directly, but only incidenter tantum, that is, instrumentally. Of course, the final decision of the court is always based on the legal rules falling under its primary jurisdiction.
As regards the need for the ECtHR to incidentally apply the pertinent provisions of domestic law, international criminal law and humanitarian law on the strength of Article 7, the Court does not simply take cognizance of the existence and content of such criminal rules, but can also embark upon the examination of their degree of accessibility and foreseeability (especially when international customary rules are at stake). This scrutiny often entails a certain degree of hermeneutic activity. Hence, the ‘outside’ rules should not be characterized as a mere fact (according to the theoretical approach advocated by the Permanent Court of International Justice under the influence of Anzilotti's dualism);8 they come into play as legal rules proper. However, in the end the Court always finds that the respondent state has or has not violated Article 7 of the Convention; it does not pronounce directly upon the alleged violation of the national or international criminal provisions previously examined.
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3. The Application of National and International Law in the Kononov v. Latvia Case: A Critical Appraisal |
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Having clarified that the European Court has inherent jurisdiction to resort to bodies of law other than the European Convention, we should now turn to the question of whether the Court correctly applies those provisions in its actual case law. To that end I will confine myself, for the reasons already expressed above (see Section 1), to the analysis of the Kononov v. Latvia case. The implications of the ECtHR's application of humanitarian law and international criminal law in the case at issue will be discussed in the concluding paragraph.
A. The Facts of the Case and the Court's Findings
In Kononov the ECtHR had to pronounce upon the legality of the applicant's conviction of war crimes, in 2004, by the Latvian Supreme Court on the strength of Article 68(3) of the Latvian Criminal Code, which entered into force in 1993.9 Kononov, a Latvian national and former member of the Soviet red partisans, in 1944 participated in a punitive military expedition against some inhabitants of the village of Mazie Batie (at that time under German military administration) who were suspected of having collaborated with the Wehrmacht. In the course of that operation, the commando of red partisans led by the applicant searched the houses of the suspects, found German weapons and ammunitions, and executed or wounded the six heads of families concerned. Then the applicant's subordinates set fire to two houses, where four people (including a woman in the final stages of pregnancy) were burnt to death. In all, nine people were killed, six men and three women.
To review the legality of Kononov's conviction by Latvian Courts the ECtHR was faced with the application of a domestic provision of substantive criminal law (Article 68(3) of the Latvian Criminal Code), which in turn defined the offence at issue (namely, war crimes) by reference to the relevant international conventions. Thus the European Court had to apply incidentally three sets of legal rules: Latvian criminal law, international criminal law and international humanitarian law.10 In particular, the ECtHR had to decide whether the Latvian Supreme Court was right in asserting that the killing of the Mazie Bati villagers in 1944 constituted a war crime, and that at the relevant time the applicant had reasonable grounds to believe that in engaging in such conduct he would face criminal responsibility. The crux of the matter was the legal status of the nine people killed in the operation under the rules and principles of international humanitarian law: whether they should be regarded as civilians entitled to protection under international humanitarian law (as Latvian Courts had established in their final judgment in the case),11 or instead as combatants (as claimed by the applicant, backed by Russia).12 The Court held that the situation of the six men and the three women should be dealt with separately. As far as the six men were concerned, the Court concluded that they were armed collaborators of the Nazis; therefore in killing them the applicant's men did not violate the applicable rules of international humanitarian law. As regards the three women, their involvement in the facts was unclear. If they also played an active role in collaborating with the Nazis, their position was the same as that of the six men. If instead they suffered death as a result of an ‘abuse of authority’ by the applicant's men, this killing was an ordinary crime subject to statutory limitations. Thus, there was no plausible legal basis on which Latvian Courts could convict the applicant of war crimes. By a majority of four votes to three, the Strasbourg Court held that Latvia breached Article 7 of the ECHR.
B. Inconsistencies in the Court's Reasoning
The Kononov case shows that the ECtHR is willing and able to incidentally apply legal rules other than human rights law on the strength of Article 7.13 However, when it comes to the actual application of these provisions, the Court's reasoning is not always watertight. On the contrary, it reveals inconsistencies and a certain tendency to oversimplify the issues.
1. Time and the Law: The Notion of ‘Civilian’ Upheld by the Majority of the Court
Let us first discuss the ECtHR's findings on the legal status of the nine people killed in Mazie Bati. This is a crucial point: roughly speaking, if those people can be characterized as combatants, the corollary is that they were legitimate military objectives and their killing was lawful; conversely, if they were civilians, they were entitled to immunity from attack, and their killing was in breach of international humanitarian law. As the Court correctly held (
131), the 1907 Hague Convention does not provide a proper definition of ‘civilian’ or ‘civilian population’. In dealing with this issue, the Latvian Supreme Court relied on Article 50 of the First Additional Protocol of 1977 (providing that whoever is not a combatant, is a civilian, and that in case of doubt whether a person is a combatant or a civilian there is a presumption in favour of civilian status). It hence ended up holding that all the nine victims of the Mazie Bati operation were civilians under the protection of international humanitarian law. The ECtHR did not concur with this finding.14 According to the Strasbourg Court, in 1944 both the ‘negative’ definition of civilian and the presumption in favour of civilian status were not enshrined in customary law. Thus the Latvian Supreme Court had unduly applied retroactively the 1977 Protocol to facts that occurred more than 30 years before its adoption ( 131).
The ECtHR's findings on this point are open to objection. Two issues in particular deserve to be discussed: (i) the characterization of the legal status of the villagers; (ii) the court's entitlement, under certain conditions, to interpret a given notion in the light of later rules clarifying it.
With respect to the legal status of the villagers, the ECtHR erred in asserting that in 1944 there were no customary rules defining civilians as a residual category from that of combatants. This definition was not first introduced by Article 50 of the 1977 Geneva Protocol. The distinction between combatants and the civilian population and the notion that people at war belong to either of the two categories is one of the core principles of humanitarian law. Article 50 simply codified a norm of customary law that in 1944 had already crystallized.15 Applying the foregoing definition of civilians a contrario from the categories of combatants, there should be no doubt that the inhabitants of Mazie Bati were civilians.16 The tricky question arising in the Kononov case was whether those civilians forfeited their immunity from enemy attack by collaborating with the enemy. Civilians who engage in the hostilities are a lawful military objective. Actual situations in the field are often more multifaceted or nuanced than the clear-cut distinction between participation and non-participation in the hostilities. In the case at issue, the six heads of families concerned were hiding weapons in their homes. Is this a conclusive element to prove that they were taking a direct part in the hostilities, thereby losing their immunity? This was exactly what the ECtHR should have clarified. In the following paragraph (section 3.B.2), I will discuss the question whether it was legitimate for the Soviet red partisans to inflict death upon them.
Let us now turn to the question of the alleged retroactive application of Article 50 of the First Additional Protocol by Latvian courts. A distinction should be made between the retroactive application of law (inadmissible in criminal matters), and resort to instruments enacted later in time in order to clarify and spell out a notion that already existed at the time when the facts occurred (which is instead fully admissible). As noted above, the principle of distinction between combatants and civilians and the rule whereby civilians enjoy immunity from attack are amongst the founding principles of international humanitarian law. These notions were already enshrined in the 1907 Hague Convention, in earlier instruments, as well as in customary law. However, the 1907 Hague Regulations did not provide a clear definition of when civilians forfeit their protection and immunity on account of their possible participation in armed hostilities. These elements are dealt with and clarified by subsequent instruments, such as the Geneva Conventions of 1949 (particularly common Article 3) and the First Additional Protocol of 1977 (Articles 50–51). The application of those provisions with a view to interpreting the relevant provisions of the Hague Regulations does not fall within the domain of inter-temporal law, as held by the minority of the Court.17 Common Article 3 and Article 50 only specify the notion of ‘civilians’ already enshrined in the Hague Regulations and in customary law by saying that persons taking no active part in the hostilities shall not be made the object of attack for such time as they take a direct part in hostilities. They do not introduce a ‘new’ definition of civilians retroactively. Having resort to a later instrument (Additional Protocol I, already preceded by common Article 3) that gives precision to and specifies that notion involves relying on a sort of authentic interpretation of the relevant provisions of the 1907 Hague Regulations. Is such hermeneutic activity compatible with the criminal character of the complaint? The answer should be in the affirmative, as this interpretation directly concerns the rule of international humanitarian law, not a criminal provision. The latter is a secondary rule (in that it provides that anybody seriously breaching a rule of international humanitarian law is criminally liable). Moreover, even applying to the Hague Regulations the rules on treaty interpretation as codified in Article 31 of the Vienna Convention on the Law of Treaties, one reaches an analogous result.18 In sum, it was legitimate for Latvian Courts to apply the broad notion of civilians enshrined in common Article 3 and Article 50 of the 1977 Geneva Protocol to the facts of the case.
It can thus be contended that the judgment of the Latvian Supreme Court, although probably not well argued in all its implications, was right in holding that the Mazie Bati villagers were civilians entitled to the protection of international humanitarian law (on the assumption, which I will discuss below, that they were not taking part in armed hostilities).
2. Did the Killing of the Mazie Bati Villagers Constitute a War Crime?
Also the European Court's findings on the applicant's responsibility for war crimes are open to objection. It held that ‘in view of the summary nature of the reasoning of the Latvian Courts, ... there was no plausible legal basis in international law on which to convict the applicant for leading the unit responsible for the operation’ ( 137). This is not a compelling argument: the fact that the judgment of the Latvian Supreme Court was not well argued does not necessarily entail that there were no plausible legal bases to convict the applicant. Those legal bases may or may not exist independently of the legal reasons put forward by the Latvian Supreme Court, and it was for the ECtHR to spell them out.
What really occurred in Mazie Bati in 1944 is not crystal clear. This is not surprising, given that Kononov was tried more than 50 years after the facts occurred. For instance, there was no compelling evidence on whether the villagers (either the nine of them, or only a smaller group) had actually reported to the Wehrmacht that a group of red partisans were hiding in the village. The only undisputed fact is that the six men killed in the attack were hiding weapons and ammunitions in their homes. However, we do not know (and in the case file there was nothing to suggest) whether they had actually engaged in the hostilities, nor whether they were ready to do so.19 What the ECtHR did not take sufficiently into account is that the villagers were civilians. The mere fact that they were concealing weapons belonging to the Germans, or that they might have collaborated with the enemy, did not deprive them of their status. It is a well-established principle of international humanitarian law that enemy civilians cannot be killed unless imperative military necessity so requires (for instance because they are engaging in combat of are very close to a crucial military objective). On the day of the attack on the village of Mazie Bati the farmers were not carrying the weapons; they were peacefully preparing for Pentecost.20 Arguably, there was no military necessity to kill them in cold blood, as they did not offer resistance to the red partisans and did not therefore pose an imminent threat. True, by collaborating with the enemy they committed a criminal offence under Soviet domestic law (one can assume they were liable for war treason). It is also true that war treason was customarily punished by death, although more lenient penalties could be imposed. However, if we apply by analogy the rules on the treatment of spies who have fallen into the hands of the enemy, the conclusion is warranted that the villagers could not be punished without a previous trial by a regularly constituted court.21 Even on the assumption that they had previously taken a direct part in the hostilities against the Soviet Union (which was not proven), the red partisans did not have the right to kill them without a previous trial because at the time of the attack, as mentioned above, they were not engaging in the fight. The interests of justice would have required securing the suspects and bringing them before a court to stand trial, either for war treason or war crimes.22 Death could only be inflicted as a punishment by a court of law, not by a military commander.
For the above reasons, in killing the villagers of Mazie Bati the red partisans of Kononov's unit committed a war crime. The applicant, in light of his position as a serviceman, must have been aware of the prohibition to kill enemy civilians, and that by participating in the acts he would incur criminal responsibility (the underlying offence, murder, is a criminal offence in all the legal systems of the world). For these reasons I would suggest that Latvian courts did not breach the principle of legality in convicting Kononov of war crimes.
The ECtHR's reasoning is objectionable also in another respect. When discussing the legality of the killing of the three women on the assumption that they did not collaborate with the Nazis, the Strasbourg Court held that if their death resulted from an ‘abuse of authority’ by Kononov's men (that is, if those killings were not planned from the outset), they should be characterized as an ordinary crime.23 One fails to understand the reasons why the killing of innocent civilians (which is a serious violation of a rule of customary humanitarian law, which unquestionably entails the criminal liability of the perpetrator) should only be characterized as a war crime if perpetrated in furtherance of a prior criminal plan. Whether or not the killings were planned, this does not affect their legal qualification once they were carried out. If the applicant is liable for criminal responsibility as a superior, and not as a co-perpetrator, the only elements that matter (cumulatively) for his criminal responsibility to arise are: (i) the fact that his subordinates committed a crime; (ii) the exercise of effective control or authority over his subordinates; (iii) his knowledge that a crime was being committed; and (iv) the fact that he failed to prevent or repress the crime.24 The ECtHR's assessment on this point denotes a misapprehension of the rules of international criminal law on war crimes and on command responsibility.
Lastly, in the Kononov judgment the European Court seemingly made an improper recourse to the notion of belligerent reprisals. When explaining the reasons why it deemed it legitimate for Kononov's unit to kill the six male villagers, the Court held ‘... the villagers must have known that by siding with one of the belligerent parties they would be exposing themselves to a risk of reprisals by the other’. In other words, the Court seemingly accepted the legality of the killings qua a belligerent reprisal for the simple fact that the inhabitants collaborated with the Nazis.25 Reprisals consist of acts contrary to the laws of war that become lawful in response to a prior violation by the adversary; their purpose is making the enemy abide by the law in the future. At first sight one may think that the justification applied in the case at issue. However, the following objections can be raised. First, the defence of lawful reprisals is related to state responsibility; in other words, this defence could only succeed if the Soviet Union as an international legal person had the right to resort to reprisals. This depends on whether Germany (the enemy belligerent) was responsible for a violation of humanitarian law. In this respect, one should take into account that (i) in collaborating with the Wehrmacht the villagers of Mazie Bati did not breach any obligation of the jus in bello; (ii) in any case they were not organs of the state (perhaps they might be considered, at best, de facto organs; this fact, however, has not been proven). Therefore, it would be more appropriate to characterize the military operation as a punitive expedition rather than a belligerent reprisal. As a punitive expedition, it was criminal for the reasons indicated above.
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4. Concluding Remarks |
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The Strasbourg Court needs to apply provisions pertaining to the domestic systems of the contracting states or to other branches of international law whenever the human rights provision invoked by the applicant contains a renvoi to those ‘external’ rules. It is empowered to do so (although only incidenter tantum) even if such competence is not expressly provided for in the treaty, because every court has the inherent jurisdiction to perform such functions that are indispensable to reach a decision on the merits. When it is the ECHR itself that, through a renvoi, renders its application conditional upon the way in which the provisions referred to regulate a given matter, the Court has to apply these external provisions in order to properly entertain the claim. Then, of course, the final decision on the merits of the case (which always revolves around the alleged violation of the human rights set forth in the Convention) depends on whether the Court correctly applied the external rules. In Kononov, for instance, the Court made some erroneous findings in applying the pertinent provisions of international humanitarian law and international criminal law. It rejected the conclusion reached by the domestic courts on the civilian status of the inhabitants of Mazie Bati. It also held that the Soviet Union was entitled to resort to reprisals for the simple fact that the villagers had collaborated with the Nazis. Thus, it concluded that Latvian Courts had convicted the applicant without a plausible legal basis, thereby violating Article 7 ECHR. Given the factual and legal complexity of the case, one can perhaps object that the court too hastily reached its conclusions without having duly taken into account all the facets of the case and their legal implications. Had the ECtHR correctly applied international humanitarian law and the international provisions on war crimes, it would have reached the opposite conclusion. In the event of Latvia requesting a referral of the case to the Grand Chamber, the latter would have the opportunity to reconsider those findings.
Even if the ECtHR's reasoning can be criticized in some respects, the fact that it did apply Latvian domestic law, international humanitarian law and international criminal law has much broader implications than for the case at issue. Should the Court stick to its own statement that it is entitled to apply national law when the wording of the Convention so requires (as is the case with Article 7),26 then one would see no reason why it should not be empowered to also look to and incidentally apply provisions of other branches of international law when there is an appropriate renvoi. Above all, the Court should apply the rules and principles of international humanitarian law (as its American counterpart currently does) when deciding whether a particular instance of deprivation of life in the context of an armed conflict resulted from a ‘lawful act of war’, or was instead a violation of the right to life.27 The ECHR, although formally applicable in times of armed conflict, is not designed to regulate such exceptional situations. Instead humanitarian law, which is the applicable lex specialis, is better tailored to regulate the belligerents’ behaviour on the battlefield. However, it is well known that so far the European Court has never made reference to humanitarian law when dealing with human rights violations committed in time of armed conflict.28 In academic circles, it is sometimes whispered (and always ‘off the records’) that the Court is reluctant to apply humanitarian law because it lacks expertise in the field. It this were true, it would not constitute a convincing reason. Since the theoretical premises for the application of humanitarian law are already in place, arguably it is high time for the Court to belie academics.
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Notes |
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1 As far as the application of international criminal law is concerned (which is of primary interest for this Journal), one may recall the cases in which the Strasbourg organs have dealt with the legality of convictions of crimes against humanity pronounced by national courts, mostly for war-related crimes. For cases concerning crimes against humanity committed during the Second World War see ECommHR, X. c. Belgique, App. No. 268/57, 20 July 1957, Yearbook of the European Convention, Vol. I, 239; Touvier c. France, App. No. 29420/95, 23 January 1997 (Admissibility), at http://www.echr.coe.int; visited 21 October 2008; Papon v. France, App. No. 54210/00, 15 November 2001 (Admissibility), Reports 2001-XII. More recently, the ECtHR has dealt with the alleged commission of crimes against humanity during the Hungarian revolution of 1956: see Korbely v. Hungary, App. No. 9174/02, 19 September 2008, at http://www.echr.coe.int; visited 21 October 2008. In one case the Court has dealt with crimes against humanity committed in time of peace (Kolk and Kislyiy v. Estonia, Apps No. 23052/04 and 24018/04, 17 January 2006 (Admissibility), at http://www.echr.coe.int; visited 21 October 2008). As far as the application of international criminal law is concerned, one should also mention the Jorgic case, in which the Court had to pronounce upon the legality of the applicant's conviction of genocide by German courts (Jorgic v. Germany, App. No. 74613/01, 12 July 2007, at http://www.echr.coe.int; visited 21 October 2008). Finally, as regards the application of the international rules on war crimes, the Kononov case will be discussed below.
2 ECtHR, Kononov. v. Latvia, App. No. 36376/04, 24 July 2008, available at http://www.coe.int (visited 21 October 2008; henceforth ‘Kononov’); 33.
3 A comparative analysis of the rules of the ECHR, the Inter-American Convention on Human Rights (IACHR), and the International Covenant on Civil and Political Rights (ICCPR) shows that a number of provisions of these treaties contain a renvoi to external or outside rules. Examples of provisions making reference to municipal law are by far the most numerous. One may cite, by way of illustration, the rules providing that certain measures adopted by the authorities must be ‘provided/prescribed by law’. For instance, measures restricting or suspending the enjoyment of human rights (such as the right to liberty, the right to private life, the right to freedom of thought and expression, and so on) must be ‘prescribed by law’. See, for the ECHR and the additional Protocols: Arts 5, 6, 8–11 ECHR; Art. 1 Protocol 1; Art. 2 Protocol 4; Art. 2 Protocol 6. For the IACHR: Arts 4, 7, 11–16, 21 and 22 IACHR; Arts 5, 8, 13 and 15 Protocol 1. For the ICCPR see Arts 5, 6, 8, 9, 12–14, 17–19, 21 and 22. Crimes and penalties must be as well provided for by the law (Art. 9 IACHR, Art. 15 ICCPR). Renvois to international law can be generic (i.e., to ‘the general principles’ of international law or to ‘other conventions/agreements’ to which the state is a party) or advert to specific branches of international law, such as international criminal law and also international humanitarian law. The former can be discerned in the provisions on the right to a higher standard of protection (Art. 53 ECHR, Art. 29 IACHR; Art. 4 Protocol 1 IACHR; Art. 5 ICCPR) and the rule on the previous exhaustion of domestic remedies (Art. 35 ECHR; Art. 46 IACHR; Art. 41 ICCPR). See also Art. I Protocol 1 annexed to the ECHR (right to property) and Art. 2 Protocol 2 annexed to the IACHR (abolition of the death penalty). As regards more specific references, those to international criminal law will be extensively discussed below. As far as humanitarian law is concerned, the only explicit reference is that enshrined in Art. 15(2) of the ECHR (‘lawful acts of war’). However, also the wording of Arts 4 and 6 of the IACHR and the ICCPR, respectively (providing that ‘no one shall be arbitrarily deprived of his life’), implicitly refers to the laws of war. In addition, an implicit renvoi to international humanitarian law can also be discerned in the derogation clauses (Art. 15 ECHR; Art. 27 IACHR; Art. 4 ICCPR), where it is provided that the measures adopted by state parties must not be inconsistent with their ‘other obligations under international law’ (emphasis added).
4 Renvois between legal orders can be classified according to two different criteria: (i) the nature of the provisions that are being referred to; more particularly, whether they are single provisions or instead normative sources; and (ii) the effect that the renvoi brings about in the referring legal order. Looking at the provisions that are being referred to, one can distinguish between formal (rinvii formali) and material renvois (rinvii materiali). The former (formal renvois) link the referring provision to a particular source in another legal order or in a different normative sector; thus they take into account subsequent modifications that may occur in the external order. The latter (material renvois) establish a connection between the referring order and a particular provision or provisions in another legal order, which thus become applicable in the referring order as they are at the moment when they are referred to.
Taking into account the second criterion, namely the effects that the renvoi brings about in the referring legal order, one may distinguish between receptive (rinvii ricettizi) and non-receptive (rinvii non ricettizi) renvois. The former have the effect of incorporating the referred sources or provisions into the referring legal order. An example is Art. 38(1)(c) of the ICJ Statute, which provides that ‘The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply ... (c) the general principles of law recognized by civilized nations.’ In other words, through receptive renvois a legal order declares applicable within its ambit norms pertaining to external orders or branches. Non-receptive renvois, instead, have the effect of rendering the application of the referring provision conditional upon the way in which an external order regulates a particular subject matter. These external provisions, however, are not incorporated into the referring legal order. It should be apparent that non-receptive renvois are always formal, whereas receptive renvois can be both formal and material. See G. Sperduti, Lezioni di diritto internazionale (Milano: Giuffré, 1958), at 99–104.
5 D. Anzilotti, Il diritto internazionale nei giudizi interni (1905), reprinted in Scritti di diritto internazionale pubblico, vol. I (Padova: Cedam, 1956), 285–541; A. Cassese, Il diritto interno nel processo internazionale (Padova: Cedam, 1962), 48; C. Santulli, Droit du contentieux international (Paris: Montchrestien, 2005), 140–141. Anzilotti explores the applicability of international law by domestic courts. He argues that internal courts cannot directly apply international law to the matter brought to court. Nevertheless, these courts can apply international law to resolve those preliminary questions whose resolution is necessary to solve the controversy brought to court. The other way round, Cassese explores the applicability of municipal law by international courts.
6 The notion of inherent jurisdiction, as well as the distinction between the latter and those powers of international courts that stem from a general principle of international law can be found in P. Gaeta, La giustizia cautelare nel diritto internazionale (Padova: Cedam, 2000), 68–77. In a nutshell, powers inherent in an international court's judicial function are those instrumental to reach the final decision (such as the power to decide whether a controversy arose and whether the court has jurisdiction). They do not have an autonomous value outside trial. Conversely, those powers that enable the court to perform functions whose significance goes beyond the pending trial (such as the power to review a judgment) stem from a general rule or principle of international law. It should be emphasized that the ECtHR has sometimes resorted to the doctrine of inherent jurisdiction in its case law. See Ringeisen v. Austria (Interpretation), App. No. 2614/65, 23 June 1973, Series A No. 16, 13 and Allenet de Ribemont v. France (Interpretation), App. No. 15175/89, 7 August 1996, Reports 1996-III, 17 (inherent jurisdiction to interpret its own judgments). See also Putz v. Austria, App. No. 18892/91, 22 February 1996, Reports 1996-I, 33 (inherent power to ensure proper and orderly conduct of proceedings, and thus to sanction disorderly conduct).
7 The distinction between primary and incidental jurisdiction can be found in Anzilotti, supra note 5, 285 et seq.; Cassese, supra note 5, pp. 47 et seq.; Santulli, supra note 5, at 334–337.
8 See Permanent Court of International Justice, Case concerning certain German interests in Polish Upper Silesia (Merits), Series A, no. 7, 1926, at 19.
9 Art. 98(3) reads as follows: ‘Any person found guilty of a war crime as defined in the relevant legal conventions, that is to say violations of the laws and customs of war through murder, torture, pillaging from the civil population in an occupied territory or from hostages or prisoners of war, the deportation of such people or their subjection to forced labour, or the unjustified destruction of towns and installations, shall be liable to life imprisonment or to imprisonment for between three and fifteen years.’
10 As far as humanitarian law is concerned, in the Court's view the applicant's acts had to be characterized only by reference to the 1907 Hague Convention, which codified legal rules of customary international law. The other treaties invoked by the Latvian Supreme Court (such as the Fourth Geneva Convention and the First Additional Protocol), instead, entered into force at a later date and could not be retroactively applied so as to cover the events that took place in Mazie Bati in May 1944.
11 The Latvian Supreme Court held that the villagers of Mazie Bati were peaceful civilians entitled to protection under humanitarian law. There was no evidence that they had actually collaborated with the Wehrmacht in a military operation that led to the killing of a group of red partisans. In addition, the fact that the Nazis supplied them with weapons and munitions did not turn them into combatants, as they did not participate in any military operation. Hence the killing of those civilians and the burning of their houses by the Soviet commando were contrary to the laws of war (Arts 23, 25 and 46 of Hague Convention IV of 1907; Arts 3, 16, 32 and 33 of Geneva Convention IV; Arts 51 and 75 of Additional Protocol I of 1977). Kononov was sentenced to 20 months’ imprisonment. He appealed to the Supreme Court's Senate but the appeal was dismissed.
12 Kononov claimed that by collaborating with the Germans the targeted inhabitants of Mazie Bati lost their immunity as civilians and turned into armed combatants, hence into a legitimate target. Kononov, 94–103. Russia, which intervened in the proceedings, claimed that the violation of the legality principle resulted from the retroactive application of Art. 68(3) of the Criminal Code to acts committed far before its entry into force (in 1993). See 104–107 of the judgment. This allegation, however, is manifestly unfounded. The raison d’être of Art. 7(1) ECHR is precisely to state that the principle of legality is complied with even when there exist only rules of international law (as opposed to domestic criminal provisions) criminalizing a certain conduct. Since international customary rules on war crimes do not attach a penalty to their transgression, they cannot be applied by the domestic courts of a contracting state (Latvia, in the instant case) unless Parliament enacts a piece of legislation criminalizing that conduct. In the case at issue, if it were proven that the acts with which Kononov was charged were war crimes under international criminal law at the time of their commission, there would be nothing contrary to the principle of legality in prosecuting him under a domestic provision entered into force in 1993. Indeed the substantive criminal provisions of municipal law are necessary for the domestic Courts to prosecute the alleged offender in that they envisage a penalty for the offence committed. However, they do not affect in any way the criminal liability of the person for having committed an act that constituted a crime under the sole rules of international law. On the latter point see also ILC Principle No. II, ‘Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal', in Yearbook of the International Law Commission, Vol. II (1950), 97. For these reasons the fact that Kononov was convicted under a criminal provision enacted nearly 50 years after the facts were committed did not per se breach the principle of legality. What the ECtHR had to inquire was whether his conduct was criminal under national or international law at the time of its performance.
13 Arguably the European Court was right in examining the case within the ambit of Art. 7(1) instead of Art. 7(2) ECHR. In so doing it departed from in its previous case law, where it had always held that cases concerning international crimes fell under Art. 7(2). The latter provision refers to ‘general principles of law recognised by civilised nations’, and in the drafters’ intention (as showed by the travaux préparatoirs) was intended to shelter the Nuremberg principles. However, as a distinguished commentator pointed out, the text of Art. 7 is clear and there is no need to resort to the travaux (and hence to the general principles of law) as a supplementary means of interpretation. Indeed, there is compelling evidence to argue that in 1944 war crimes were prohibited under ‘international law’ (namely, by international rules of customary law), as provided for by Art. 7(1). On this point see A. Cassese, ‘Balancing the Prosecution of Crimes against Humanity and Non-Retroactivity of Criminal Law: The Kolk and Kislyiy v. Estonia Case before the ECHR,' 4 Journal of International Criminal Justice (2006) 410, at 414–415.
14 However, it remains unclear how the ECtHR characterized the legal status of the inhabitants of Mazie Bati under international humanitarian law. On the one hand the Strasbourg Court contested the findings of the Latvian Supreme Court, which established they were civilians ( 131). On the other, it never openly used the label ‘combatants’, even with regard to the six men. Just once, in passing, it held that the inhabitants were ‘guilty of abusing their status of "civilians" ’ ( 139). Does it mean they were combatants? Or did they suddenly turn into civilians even though in 131 of the judgment they were not? With respect, the contention can be made that the legal reasoning of the Court on this point is unclear and thus unconvincing.
15 At the 1977 Geneva Conference that led to the adoption of the Additional Protocols, the provision at issue was adopted by consensus, and states parties did not make any reservation thereto. See J.-M. Henckaerts et al., Customary International Humanitarian Law, Vol. I, ‘Rules’ (New York: Cambridge University Press, 2005), 17–19.
As of 1944, one can find examples of instruments adopted at both the national and international level envisaging the definition of civilians a contrario from the categories of combatants. For instance, a rudimentary but still important distinction between civilians and belligerents can be found in the explanation of Art. 1 of the 1880 Oxford Manual on the Law of War on Land, drafted by the Institut de droit international (reprint in D. Schindler and J. Toman, The Laws of Armed Conflicts: A Collection of Conventions, Resolutions, and Other Documents (3rd rev. edn., Dordrecht: Nijhoff, 1988), 36–48). After having stated that ‘The state of war does not admit of acts of violence, save between the armed forces of belligerent States. Persons not forming part of a belligerent armed force should abstain from such acts’ (Art. 1), the explanation annexed thereto provides that ‘This rule implies a distinction between the individuals who compose the "armed force" of a State and its other "ressortissants" ...’. Art. 2 then provides a definition of ‘armed forces of the state’, listing all the categories concerned. It should be emphasized that the Manual was drafted with the aim of providing ‘the basis for national legislation in each State, and in accord with both the progress of juridical science and the needs of civilized armies’ (ibid., preface).
The 1912 edition of the British Manual of Land Warfare (Col. J.E. Edmonds and L. Oppenheim, Land Warfare: An Exposition of the Laws and Usages of War on Land, for the Guidance of Officers of His Majesty's Army (London: His Majesty's Stationery's Office, 1912), 17) talks about the ‘division of the enemy population into two classes, the armed forces and the peaceful population’. It also adds that individuals have to choose to belong ‘to one class or another’.
An even more precise definition of enemy civilians and their status under humanitarian law is enshrined in the Draft International Convention on the Condition and Protection of Civilians of Enemy Nationality Who Are on Territory Belonging to or Occupied by a Belligerent, adopted at the XVth International Conference of The Red Cross, held in Tokyo in 1934. This Convention, which was never adopted due to the outbreak of the Second World War, was meant to supplement the provisions of the 1907 Hague Convention. In its Art. 1 it contains the following definition: ‘Enemy civilians in the sense of the present Convention are persons fulfilling the two following conditions: a) that of not belonging to the land, maritime or air armed forces of the belligerents, as defined by international law, and in particular by Articles 1, 2 and 3 of the Regulations attached to the Fourth Hague Convention, of October 18, 1907, concerning the Laws and Customs of War on Land; b) that of being the national of an enemy country in the territory of a belligerent, or in a territory occupied by the latter.’
In the classic book by L. Oppenheim, International Law: A Treatise, Vol. II, ‘Disputes, War and Neutrality’ (5th edn., London: Longmans, 1935), a clear distinction is made ( 57) between the armed forces of the state, on the one hand, and ‘[t]hose private subjects of the belligerents who do not directly or indirectly belong to the armed forces’, on the other.
Art. 1 of the Draft Convention for the Protection of Civilian Populations against New Engines of War, adopted by the International Law Association in 1938, provides that ‘... the phrase "civilian population" within the meaning of this Convention shall include all those not enlisted in any branch of the combatant services nor for the time being employed or occupied in any belligerent establishment as defined in Article 2’.
Lastly, one should also consider the US Field Manual of 1940, stating that individuals at war are either lawful belligerents (defined in 9), or peaceful civilians. See War Department, War Department Field Manual FM 27-10. Laws of Land Warfare (Washington: US Government Printing Office, 1947), 8: ‘The enemy population is divided in war into two general classes, known as the armed forces and the peaceful population. Both classes have distinct rights, duties, and disabilities, and no person can belong to both classes at one and the same time’).
In more recent years examples of military manuals, national legislation and international decisions referring to the civilian population as a residual category from the categories of lawful combatants are numerous. See J.-M. Henckaerts et al., Customary International Humanitarian Law, Vol. II, ‘Practice’ (New York, Cambridge University Press, 2005), at 100–106.
16 Arguably, the nine villagers killed in Mazie Bati did not fulfil the necessary conditions to be characterized as belligerents according to the classification enunciated in Arts 1–3 of the Hague Regulations.
17 See Kononov, Joint dissenting Opinion of Judges Fura-Sandström, Thór Björgvinsson and Ziemele, 6.
18 Taking into consideration: (i) the object and purpose of the 1907 Hague Convention, which is to protect people from ‘the evils of war’; (ii) its preamble (particularly the Martens clause and the reference to the principles of humanity); (iii) subsequent practice relative to the interpretation of the notion of ‘civilian’; and (iv) the rules (of international humanitarian law) applicable in the relations between the parties, it can be submitted that it was legitimate for the Latvian Supreme Court to rely on the definition of civilians as a residual category from that of combatants.
19 These finding were made by the Latvian Supreme Court in its judgment of 30 April 2004. The relevant passages are quoted in 44 of the Kononov judgment.
20 It is reported in the judgment that one of the men was ‘seized in his bath’ (Kononov, 17), while another while in bed with his child (ibid., 18).
21 The question whether a judgment on the villagers’ guilt had been previously delivered by a Soviet military tribunal was disputed by the parties. The Court decided, somewhat strangely, that the issue was not relevant for the case. On the prohibition of punishing spies without previous trial see Art. 30 of the Hague Regulations of 1907: ‘A spy taken in the act shall not be punished without previous trial.’ The principle is also affirmed in the 1912 edition of the British Manual of Land Warfare (supra note 15, 169); in Art. 66 of the 1913 Manual of the Laws of Naval War (reprint in Schindler and Toman, The Laws of Armed Conflicts, supra note 15, 858–875); in 211 of the 1940 US Field Manual (supra note 15). The foregoing view also finds support in legal literature. See Oppenheim, supra note 15, 161. It is also worth mentioning a classic book by the Italian legal scholar Balladore Pallieri, where it provides that: ‘La pratica e le convenzioni internazionali vogliono che la spia, anche colta sul fatto, non sia condannata se non previo giudizio; il medesimo principio vale anche per il privato che abbia commesso qualunque altro atto di ostilità. Importa sempre accertare che non si tratti davvero di un legittimo combattente, che gli atti imputati siano stati realmente compiuti; la necessità di un giudizio in tutte queste ipotesi è ben certa secondo i nostri moderni principi di civiltà.’ See G. Balladore Pallieri, Diritto internazionale pubblico (8th edn., Milano: Giuffré, 1962), 646.
22 The view whereby acts of direct participation to the hostilities by civilians amount to war crimes is not unanimous. It has been upheld by authoritative commentators (see, among others, Oppenheim, supra note 15, 254) and affirmed in some military manuals (see the 1912 edn. of the UK Manual of Land Warfare, supra note 15, 444; US Field Manual of 1940, supra note 15, 348; Canada, LOAC Manual (1999), 16–4; New Zealand, Military Manual (1992), 1704(5)). Other commentators instead argue that direct participation in the hostilities by civilians is not a violation of humanitarian law, and thus not a war crime. See M. Sassòli, ‘Terrorism and War’, 4 Journal of International Criminal Justice (2006) 959, at 969–970; R.R. Baxter, ‘So-Called "Unprivileged Belligerency": Spies, Guerrillas and Saboteurs’, 28 British Year Book of International Law (1951) 323, at 342; Y. Dinstein (ed.), ‘The Distinction between Unlawful Combatants and War Criminals’, in International Law at a Time of Perplexity: Essays in Honour of Shabtai Rosenne (Dordrecht: Nijoff, 1989), 103.
24 On the doctrine of superior responsibility, see A. Cassese, International Criminal Law (2nd edn., Oxford: Oxford University Press, 2008), 243–249. Whether certain crimes that have been committed were included in the original plan or not would matter in case of a joint criminal enterprise of third type. See ibid., 189 et seq.
26 In Kononov the Court held that in those instances where it is ‘the Convention itself that expressly refers to the domestic law’, as is the case with Art. 7, ‘it [the Court] must have jurisdiction to decide whether the provision of criminal law concerned has been complied with’ ( 110).
27 This famous expression is taken from Art. 15(2) ECHR (see supra note 3). However, given the non-derogable character of the right to life, the exception is considered an implicit derogation to Art. 2 on the right to life. See N. Ronzitti, Diritto internazionale dei conflitti armati (2nd edn., Torino: Giappichelli, 2006), 141.
As regards the human rights monitoring bodies established within the Organization of the American States, both the Commission and the Court have made reference to international humanitarian law in their case law, although to a different extent, when dealing with complaints arising out of an armed conflict. In its earlier case law the Inter-American Commission (IACommHR) even held that is was competent to directly apply humanitarian law. However, the Inter-American Court (IACtHR) in its decision in the preliminary objections of the Las Palmeras case (2000) rejected that finding, holding that human rights monitoring bodies are only competent on human rights issues. However, in its later case law, it has consistently referred to the relevant rules and principles of humanitarian law for interpretative purposes. See L. Moir, ‘Law and the Inter-American Human Rights System', 25 Human Rights Quarterly (2003), 182.
28 The Court has dealt with cases arising out of an armed conflict in three situations: the military occupation of Northern Cyprus by Turkish troops, the emergency situation in South-East Turkey, and the armed conflict in Chechnya. In those cases the ECtHR has always applied legal standards that, although resembling those of humanitarian law, were derived solely from human rights norms, and particularly from Art. 2 on the right to life. For an analysis of the law applied by the Court see, among others, W. Abresch, ‘A Human Rights Law of Internal Armed Conflict: The European Court of Human Rights in Chechnya', 16 European Journal of International Law (2005) 741; H.-J. Heintze, 'The European Court of Human Rights and the Implementation of Human Rights Standards During Armed Conflicts', 45 German Yearbook of International Law (2002), 60. The brightest example of the Court's unwillingness to apply humanitarian law can be found in two judgments delivered on 6 July 2005 in which the Court examines the conduct of military operation (more particularly of two air strikes) by Russian aviation in Chechnya. See Isayeva v. Russia (Isayeva II), App. No. 57950/00, 25 February 2005; Isayeva, Yusupova and Bazayeva v. Russia (Isayeva I), Apps No. 57947/00, 57948/00 and 57949/00, 24 February 2005 (both judgments are available at http://www.echr.coe.int; visited 21 October 2008). The ECtHR's attitude towards humanitarian law began to change in early 2008, with the judgment on the Varnava case. Here the Court, for the first time, explicitly referred to the existence of obligations of humanitarian law, codified in the Geneva Conventions of 1949 and in the Additional Protocols, which ‘have attained the status of customary law’. It then added that these obligations were somewhat encompassed in Art. 2 ECHR. See Varnava and Others v. Turkey, Apps No. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, 10 January 2008, available at http://www.echr.coe.int, 130 (visited 21 October 2008).
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