August 01, 2025
by dr Demetra Loizou and dr Nadia Kornioti
***
To celebrate the 15th anniversary of the Strasbourg Observers Blog, we organised an in-person symposium with scholars, practitioners, and members of the ECtHR on 8–9 May 2025 in Ghent. Connecting in person with so many regular contributors was a wonderful experience and led to engaging dialogue with current and former judges of the Court. To allow our online community to participate in the thought-provoking discussions that took place, we will be publishing selected position papers on the blog over the next two summer months. We wish all of our readers a well-deserved break with a little peek on Strasbourg Observers here and there.
***
When the European Court of Human Rights (ECtHR/ the Court) issued its second interstate judgment concerning the war between Georgia and Russia (Georgia v Russia (II), Application No 38263/08), legal academia was dismayed by the way the Court refused to engage with alleged human rights violations during the active period of hostilities between the two states (e.g., Dzehtsiarou). Even though armed conflict stands at the core of the adoption of the Convention in 1950, just after the Second World War, and despite the fact that there is a direct reference to ‘war’ within its text (notably article 15 on human rights derogations), the law’s interpretation evolved in a manner which fostered a growing divide between international human rights law (IHRL) and international humanitarian law (IHL). This disintegration, we argue, originates to a certain extent in historical contingencies which allowed for the marginalisation of arguments based on IHL in the earliest case-law concerning the ECHR.
The present post is part of ongoing work aiming to critically re-examine the case law of the ECtHR relevant to armed conflict situations, international or non-international, in an effort to identify historical trends in the disposition of the Court (and the European Commission of Human Rights/EComHR before it) towards human rights issues intertwined with IHL considerations. The hypothesis is that the overall trend in the lack of engagement of Convention organs with IHL, is neither a surprising nor new phenomenon. We argue that the practice is entrenched in the culture of the ECHR organs historically. The implications of this controversy, in our experience as Cypriot researchers, are not just theoretical. Rather, it has a direct impact on the societies affected by the conflicts in question.
The very first interstate case before the EComHR was submitted in 1956 and concerned a series of emergency measures adopted by the United Kingdom (UK) during anti-colonial violence in the then Crown colony of Cyprus; Greece v UK (Application No 176/56(and here for a detailed legal historical analysis). Submitting an application on behalf of the Greek Cypriot community of the island, Greece argued that the practices of corporal punishment, collective punishment and practices during detention and arrest where incompatible with articles 3, 5, 6, 7 ECHR and article 1 of Protocol 1, despite the fact that the UK had submitted a derogation under article 15. Greece argued that the wording of article 15(1) that such measures should not be ‘inconsistent with its other obligations under international law’, would bring every international obligation touching on the rights protected by the ECHR in the remit of the protections afforded by the Convention. In that regard, Greece further submitted that the abovementioned practices also breached provisions under the 1899 Hague Regulations as well as the Third and Fourth Geneva Conventions 1949, including Common Article 3 on non-international armed conflicts (paras 145, 147). Naturally, the argument was rejected by the UK, counter-arguing that the purpose of the provision was to prevent the exploitation of derogations as an excuse for the evasion of other obligations under international law (para 146).
With the ECHR entering into force in 1953, the case fell within a number of legal and procedural vacuums, since this was the first time a derogation under article 15 of the Convention was submitted and the first time an inter-state complaint was initiated before the Commission. As a result, the derogation by the UK in Cyprus was already puzzling to the Council of Europe Secretariat, and subsequently to the EComHR, since – beyond the limited provision of the Convention – there was no other procedural guidance or long-term practice available yet. Secondly, there was no clear indication on how one should treat general international law within the framework of the ECHR. Thus, whereas the EComHR opined that, indeed, derogations should not breach other international law obligations (para 149), it eventually decided by majority that no legal opinion on the relevance of IHL was needed. It did so, not because of a manifest irrelevance of IHL, but rather because the examination of questions pertaining to IHL was made redundant by the fact that the UK had abandoned practices of corporal and collective punishment altogether, while the proceedings before the EComHR were ongoing. In this way, the EComHR evaded engaging with a highly critical issue which remains unresolved to date.
The third point concerns Common Article 3 of the 1949 Geneva Conventions I-IV in particular, since, at the time, colonial powers were adamant that ‘the convention in miniature’ concerning non-international armed conflicts had no applicability in the colonies (Falk, Klose). As seen in later key cases, including those concerning ‘the troubles’ in Northern Ireland, the application of Common Article 3 was not brought up before the EComHR or the ECtHR again. This point is relevant to the broader history of humanitarianism, where the legal historical evolution of IHRL and IHL suggests that in the first half of the twentieth century these two areas of law were much more closely integrated than presumed today (Pictet, Fortin, Alexander, Van Dijk).
New efforts to invoke IHL directly were made in the Cyprus v Turkey cases of the 1970s, when the EComHR, again evading the relevant submissions by the Republic of Cyprus, did not find it necessary ‘to examine the question of a breach of Art. 5 [ECHR] with regard to persons accorded the status of prisoners of war’ (para 313).
Today the ECtHR has an immensely broad mandate, within which issues pertaining to armed conflict are only one but a highly significant aspect. The cases relating to armed conflicts within the European region can be sub-categorised into the interstate cases, and those lodged with the Court as individual petitions. The relevant caseload of the Court is immense. Among a total of 515 judgments of the Grand Chamber available in the English language on the depository of documents of the ECHR’s enforcement organs (HUDOC), a survey conducted on 28 April 2025 with the search terms ‘international criminal law’, ‘international humanitarian law’ and ‘armed conflict’ returned 334 (64.9%), 80 (15.5%) and 112 (21.7%) Grand Chamber judgments in English, respectively. Moreover, according to a factsheet produced by the Court’s registry, until January 2023 there were more than 290 judgments finding violations of the ECHR during the 1999-2000 Chechen War in the Russian Federation, seven inter-state cases between Armenia and Azerbaijan concerning the armed conflict of 2020 alone (since then the State parties have communicated their mutual intention to withdraw these cases; see here), and over 8,500 individual applications pending concerning the conflict in eastern Ukraine, before the Russian invasion of 2022. Thematically, the Court’s case-law on armed conflicts is also rather broad, dealing with situations of military occupation, internal armed violence, the conduct of peacekeepers, the alleged torture and unlawful detention of terrorism suspects, and the derogation clause under article 15 ECHR, among others. Thus, judging from the sheer volume of conflict-related cases pending before the Court, it can be argued that expectations that the Court is able to deliver justice in disputes relating to armed conflict have only been growing.
The fragmentation of public international law has led to the development of multiple sub-specialisations among which the relationship between IHRL and IHL is one of the hardest issues to tackle. At the same time, the rapid evolution of international criminal law (ICL) from the 1990s onwards further blurs the objectives, the relationship and the effectiveness of the different regimes and enforcement mechanisms relating to situations of armed conflict. As clarified in the literature, however, whereas IHRL and IHL constitute separate legal regimes which may overlap against the same set of facts, ICL is a rather technical area of law, whose distinct procedural rules do not come in conflict with human rights provisions (Bantekas and Oette, Section 17.2). On the contrary, ICL can be implemented with more clarity when based on the interpretation of procedural human rights guarantees such as those enclosed in articles 6 and 7 ECHR.
Considering the growing experience of international criminal tribunals as international courts which need to apply simultaneously IHL and IHRL, we are, therefore, curious to investigate whether their experience to date, albeit limited compared to that of the ECtHR, can provide insights on how to improve the disposition of the ECtHR itself – the first and oldest regional human rights court – towards IHL, recognising of course that the latter is the product of a different era, with a different formal mandate.
Under the Rome Statute, the International Criminal Court (ICC) was established to put an end to impunity for ‘the most serious crimes of concern to the international community as a whole’ (Rome Statute, Preamble). Former ICC President Judge Sang-Huyn Song noted in a speech that he did not think that ‘it would be an exaggeration to compare the spirit of the Rome Conference to the spirit of the Universal Declaration of Human Rights.’ In his view, the adoption of the Rome Statute represented another ground-breaking development toward a more humane world, and ‘[w]hile the ICC is not a human rights court in the strict sense, it was created to help protect core human rights and values.’
Compared with earlier international criminal tribunals, the Rome Statute made significant advancements in safeguarding the rights of those participating in ICC proceedings. Among other things, the Rome Statute provides for the direct participation of victims in judicial proceedings, establishes a Trust Fund for Victims, allows victims to claim reparations from convicted persons and contains a robust and extensive array of provisions aimed at guaranteeing the accused’s procedural rights (Irving, p. 837). Significantly, the ICC is ‘the first international tribunal to explicitly contain provisions relating to the different components of the principle of legality’ (d’Aspremont and Kammerhofer, p. 16. See also: Rome Statute, Article 22).
Arguably, the greatest innovation of the Rome Statute, in human rights terms, is article 21(3), the concluding paragraph of a provision that is groundbreaking as a whole (Schabas, p. 511). Article 21 sets out the sources of law to be applied by the ICC and the relationship between them. Article 21(3) stipulates that the ICC must interpret and apply all law in a manner consistent with internationally recognised human rights. The significant role to be played by this provision in expanding human rights protections was set out in unequivocal terms in the very first ICC case, the Lubanga case. In the words of the Appeals Chamber, ‘[h]uman rights underpin the Statute; every aspect of it, including the exercise of the jurisdiction of the Court’ (para 37). In essence, article 21(3) establishes a ‘mandatory principle of consistency’ in that all the provisions of the Rome Statute must be interpreted and applied in a manner which is consistent with human rights (Zeegers, p. 78). Notably, there is no equivalent provision to article 21 of the Rome Statute in the ECHR.
Moreover, while both the ECtHR and the ICC are last resort courts, one cannot disregard the significance of the principle of complementarity, which entails that the jurisdiction of the ICC is complementary to that of national criminal jurisdictions (Rome Statute, Article 1). Hence, a case is inadmissible before the ICC unless the State concerned is ‘unwilling or unable genuinely’ to carry out the investigation or prosecution (Rome Statute, Article 17). In Al-Senussi, the Appeals Chamber held that the possibility of human rights violations occurring in domestic proceedings was not per se sufficient to find that a state was unwilling to prosecute an individual. If this were the case, the Court would come close to becoming an international court of human rights, and such a possibility was not explicitly included within the ICC’s admissibility regime (paras 219-220). At the same time, the Appeals Chamber took the view that it could not turn a blind eye in extreme situations where national proceedings completely lacked fairness, contrary to even the most basic understanding of justice. Significantly, the Appeals Chamber’s finding was explicitly linked to the requirement embodied in article 21(3), that the application and interpretation of law under the Rome Statute must be consistent with internationally recognised human rights (paras 229-230). A similar approach was followed earlier on in the Lubanga case where the Chambers declined to consider whether the ill-treatment which the accused allegedly suffered in the hands of the national authorities amounted to abuse of process except for instances of torture or serious mistreatment (para 42).
Admittedly, the ICC’s ability to confer human rights protections is to date most evident with respect to issues which constitute essential parts of the criminal proceedings, such as evidentiary issues and the fair trial rights of the accused (Bemba, paras 16-17; Katanga and Ngudjolo, paras 27-29, 31, 41; Katanga, paras 24-26). Increasingly, however, the ICC has also relied heavily on the jurisprudence of human rights courts, including the ECtHR, in the interpretation of crimes within its jurisdiction. A pertinent example is the Ongwen case – one of the most recent cases decided by the Court. The ICC trial judgment made reference to decisions of several international courts and tribunals, including the jurisprudence of the ECtHR, the Inter-American Court of Human Rights, and the African Commission of Human and Peoples’ Rights in its discussion of what constitutes torture (paras 2700-2702). Ongwen became the first person to be convicted by an international criminal tribunal for the war crime and crime against humanity of enforced pregnancy. In this respect, the Trial Chamber referred to various human rights treaties and instruments, including article 5 of the ECHR, in interpreting what constitutes ‘unlawful confinement’ for the purposes of the crime (para 2724).
There is no doubt that the ICC is not a human rights court. It was never meant to be one. As discussed above, when the matter lies at the ‘periphery’ of the Court’s mandate, human rights protections give way to national sovereignty considerations in line with the principle of speciality. At the same time, the indications thus far from the Court’s jurisprudence – and these are by no means exhaustive or conclusive – point towards the conclusion that when serious human rights violations are involved, the ICC may be willing to give less weight to concerns that it is acting as a human rights court (Irving, p. 850).
While the ECtHR’s reluctance to embrace IHL norms in its jurisprudence is both logical and wise, an uneven relationship can be discerned when compared to the ICC’s preoccupation with human rights considerations. Our concerns over this phenomenon derive from years of observing how the judgments of the ECtHR inform the legal and the political culture in a society affected by armed conflict, contributing to a disregard for, and a lack of, enforcement of IHL – an area of law which, despite its arguably noble objectives, remains a victim of controversial political priorities. The legal discourse pertaining to the Cyprus conflict, has primarily focused on the application of human rights law, with IHL being often completely absent from any legal discussions on the Cyprus conflict. This approach, while formalistically valid, is not necessarily the best course of action in terms of ensuring the widest possible scope of protection for victims of human rights violations during an armed conflict. In the lengthy case-law on the unresolved conflict between Cyprus and Turkey, for instance, the non-engagement with IHL has led to the neglect of vital humanitarian issues, such as in the handling of issues relating to missing persons (Kyriakou, p. 195) by both parties to the conflict.
By comparison, the ICC – as the leading international criminal tribunal – appears much more open, willing, and formally able, to incorporate human rights norms in its work than the ECtHR is with respect to IHL rules. While the ECtHR is not explicitly mandated to apply IHL, its regime is intrinsically linked to it as far as armed conflict cases are concerned, and the need for a dialogue between the two legal regimes derives from both IHL and IHRL being part of the general international law framework.
In closing, it would be inappropriate not to recognise that the Court has, over its long history, engaged at length with broader issues of international law, including IHL in cases like Al-Skeini and others v The United Kingdom and Hassan v The United Kingdom. However, we are yet to observe a consistent and satisfactory approach. When the ECtHR was presented with a unique opportunity to deepen its engagement with questions of IHL in Georgia v Russia (II), the Court in its judgment opted instead for ‘an exercise in arbitrary line-drawing’ (Milanovic). While Georgia v Russia (II) has brought a renewed urgency to the matter, as shown in this post, this is not a novel issue. In our view, the judgment is aligned with the Court’s long-standing approach towards (or distance from) armed conflict situations.
Strasbourg Observers is an academic blog that discusses recent developments at the European Court of Human Rights. The editorial team of Strasbourg Observers is based at the Human Rights Centre of Ghent University and the Centre for Government and Law of Hasselt University.
Strasbourg Observers would not be possible without the valued work of countless guest bloggers. Visit the “Contact” page on our website to find out how to become one!
