January 27, 2017
In an astonishingly laconic judgment (available only in French), the Court found no violation in the case of a 12-year old who was wounded by an anti-personnel mine while herding his sheep.
Facts and Ruling
The facts in this case date back to the summer of 2003, in a Kurdish village in East Turkey, not far from the borders with Armenia and Iran. 12-year old Erkan Sarıhan was herding his sheep in a minefield, situated at 150 metres from his village. He was playing with an anti-personnel mine when it exploded, causing severe injuries to his face, hands and chest. The minefield, which belonged to an army post situated 200 metres further, was surrounded with barbed wire and warning signs. There was also a watch post manned by two soldiers, who however did not have a view of the entire terrain and as a result had not seen the child enter. The inquiry into the accident showed that through the village mayor, the inhabitants of the village had regularly been warned about the dangers of the minefield. The report concluded that the child’s parents were responsible for the accident. It also held that it was necessary, in order to prevent similar accidents, to move the watch post so that it would overview the entire terrain, and to install specific warning signs for illiterate persons.
Given the fact that the medical report indicated that the applicant’s injuries had been life-threatening, the Court examined the case as a matter of positive obligations to protect the right to life (Article 2 ECHR). With a majority of 5 to 2, the Court found no violation. This finding is supported by three succinct arguments. One, the Court estimated that the inhabitants of the danger zone were or should have been aware of the risks caused by the minefield. Two, the Court held that, since the applicant was 12 at the time of the facts (!), he was capable of understanding the risks inherent in his entering a military zone to which access was forbidden. Three, the Court held that the conclusion of the inquiry that security measures needed to be reinforced did not imply that the measures that were in place were insufficient in light of Article 2, since ‘it is always possible to take additional measures to protect persons from the dangers caused by a minefield, yet it is would be impossible to reach a level of complete protection, especially on account of the unpredictability of human conduct’. (para. 56)
If this judgment makes you as uncomfortable as it makes me, read the dissenting opinion of judges Laffranque and Turkoviċ, who express very clearly why this ruling is problematic. Distressingly, this means that these arguments were on the table during deliberation and were deliberately disregarded by the majority (judges Karakaş, Vučinić, Griţco, Kjølbro and Mourou-Vikström).
We are talking about anti-personnel mines! And about a child!
If, at our biweekly ‘Strasbourg Club’ meeting, we collectively just could not get over this ruling, these are the reasons, simply as first-grade math: anti-personnel mines + child = need for very strong protective measures. If the Court did not reach the same conclusion, it is because in this judgment, the Court both trivializes the seriousness of a minefield near a village, and ignores the realities of children’s behaviour.
Let’s zoom in on the anti-personnel mines first. From among the enormous range of weaponry that modern armies have at their disposal, there is only a handful about which the world community has been able to reach a consensus that they are so problematic that they need to be banned. Anti-personnel mines are in that category, along with chemical weapons and biological weapons, amongst others. The 1997 Convention on the prohibition of the use, stockpiling, production and transfer of anti-personnel mines and on their destruction (Ottawa Convention), explains in its Preamble that anti-personnel mines need to be banned because they kill or maim ‘mostly innocent and defenceless civilians and especially children… for years after emplacement’. Turkey joined the Ottawa Convention a few months before Erkan Sarıhan’s accident, and it entered into force the next year. As a result, it is obliged to destroy all anti-personnel mines on its territory, including those in minefields.
Given this context in which the great risks of anti-personnel mines for civilians have been solidly established, it is extraordinary that the Court does not remark at all on the fact that the Turkish army had knowingly established a minefield at very close proximity to a village, and adjacent to pastures where the children of the village were known to graze their families’ sheep.
It is moreover astonishing that the Court considers that the authorities cannot only create minefields at such places that seem to maximize risk for civilians, but that they can moreover do so with the flimsiest of safety measures in place. Indeed, how much use is a watch post, if it oversees only part of the minefield? And how much use is barbed wire, if both children and sheep can easily access the forbidden terrain? When we are talking about children, whom the authorities well knew would, as per local custom, graze sheep unsupervised by adults in the areas surrounding the village, how much use is it anyway to spread the message, through signs and otherwise, that a certain area is ‘dangerous’ and ‘forbidden’, as long as that area remains de facto accessible? Children around the world will climb under or over barbed wire, attracted rather than repelled by anything adults forbid. The attraction of this zone was not particular to Erkan Sarıhan, as demonstrated by the fact that three years later, in 2006, a 13 year old was seriously injured in a similar manner in the same minefield. The specific threat that landmines pose to children was explicitly recognized in the ground-breaking 1996 United Nations expert report by Graça Machel on the Impact of Armed Conflict on Children. She wrote amongst others that ‘(l)andmines and unexploded ordnance pose a particular danger for children, especially because children are naturally curious and likely to pick up strange objects they come across’, and that ‘(c)hildren are also more vulnerable to the danger of landmines than adults because they may not recognize or be able to read warning signs.’ Moreover the report notes that ‘(a) mine explosion is likely to cause greater damage to the body of a child than to that of an adult. Anti-personnel mines are designed not to kill, but to maim, yet even the smallest mine explosion can be lethal for a child.’
Yet the Court, in a startling departure from some of its case law emphasizing children’s vulnerability, in this case treats a 12-year old as an adult. Despite knowing that Erkan Sarıhan had been playing with the mine when it exploded, the five majority judges laconically state that it was unlikely that he was not aware of the risks he was facing.
What needs to be done seems rather clear. In the first place, states should avoid mining zones in areas where this creates foreseeable risks for civilians, and in particular for children. In the second place, if a minefield is in place in a zone where it can be foreseen that children may try to enter, the minefield should be made inaccessible to them, whether through an enclosure or constant surveillance. Any measure staying short of that level of protection, is deliberately taking a risk with children’s lives. That the Court has sanctioned such state attitude in Sarıhan, is difficult to come terms with.