WHAT IS FAIR IN LAW & WAR? Discussing States’ conduct and compliance with human rights standards during military operations abroad in Hanan v. Germany

Aurélie Van Baelen, researcher at the Human Rights Centre (University of Ghent)

Introduction

On 16 February 2021, the European Court of Human Rights (ECtHR) delivered its long-awaited judgment in Hanan v. Germany (application no. 4871/16). The ruling presents another episode in the saga of cases regarding States’ conduct, and more specifically their compliance with international human rights law, during military operations abroad under the auspices of an international organisation. Facing no fewer than eight intervening governments, showing the importance of the case at hand for troop-contributing States, the ruling is – unsurprisingly – one of give and take.

As I will argue in this blog post, the judgment is remarkable for finding extraterritorial jurisdiction for the purposes of Article 1 of the European Convention of Human Rights (ECHR) and for explicitly reconfirming a State’s duty to investigate civilian casualties in correspondence to human standards. The Court’s finding of a non-violation of the procedural limb of Article 2 ECHR however is unfortunate, but expected. The Court delivered a strategic judgment, in which it attempts to not dissuade States to engage in multilateral military operations, or to institute domestic investigations into deaths occurring during military operations abroad, on the one hand, and to protect fundamental rights on the other. A carefully constructed balance which, regrettably, has tilted in favour of the former, which for airstrike victims, is the umpteenth disappointment on their quest to justice.

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