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Applicability of the European Convention on Human Rights to UK Airborne Operations in Syria

Blog • • Dr Noëlle Quénivet and Dr Aurel Sari

On 2 December the House of Commons approved the extension of airborne operations to Syria. This blog discusses the applicability of the European Convention on Human Rights to such operations. It is based on written evidence submitted by Dr Noëlle Quénivet and Dr Aurel Sari to the Joint Committee on Human Rights. The Committee began on 29 October an inquiry into the UK policy on use of drones for targeted killing following the attack in Raqqa, Syria on 21 August which killed two British nationals. This work is part of the BA-funded project ‘Clearing the Fog of Law: The Impact of International Human Rights Law on the British Armed Forces’.

It is well-established that international human rights instruments continue to apply in times of armed conflict and that they may also apply outside the national territory of their signatories when States deploy their military forces abroad (Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996; Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), 19 December 2005). Whilst it is well established that the European Convention on Human Rights applies to such deployments (Al Saadoon and Mufdhi v UK, Application No 61498/08, 2 March 2010; Al-Skeini and others v UK, Application No 55721/077, 7 July 2011; Al Jedda v UK, Application No 27021/08, 7 July 2011; Hassan v UK, Application No 29750/09, 16 September 2014;Jaloud v the Netherlands, Application No 47708/08, 20 November 2014), the criteria for its applicability are a matter of considerable controversy.

The key concept establishing the applicability of the Convention is ‘jurisdiction’ which is primarily territorial but can, exceptionally, be extra-territorial provided that the State is exercising ‘authority’ or ‘effective control’. With regard to military operations conducted abroad, this exercise of authority or effective control can be divided into three models of application: (1) personal control, (2) area or spatial control and (3) ‘assumption of authority’ combined with a jurisdictional link (Al-Skeini).

The personal control test relates to the State authority over an individual. In light of the existing case-law it is unlikely that a person targeted in an airborne attack would fall within the ‘physical power and control’ of the State conducting the operation. First, the test involves some form of mutual interaction between the State and the person it controls. Airborne operations do not entail the exercise of control over their intended target and it is questionable whether they are actually capable of doing so. Second, the paradigmatic example of the personal control test is the arrest and/or detention of individuals by State agents (Al-Skeini). Airborne operations lack that element of direct interaction and proximity between the individual and the State agent, ie the pilot. Third, the Court has so far only accepted jurisdiction in cases involving ground operations (in contrast, see Bankovic v Belgium et alApplication No 52207/99, 12 December 2001). Therefore, we argue that airborne operations do not amount to an exercise of control and thus do not engage the applicability of the Convention under the personal control test.

According to the spatial control test, the State has to exercise effective control over an area or foreign territory (Loizidou v Turkey (merits), Application No 15318/89, 18 December 1996; Ilascu et al v Moldova and Russia, Application No 48787/99, 8 July 2004). Such a situation usually arises when a State is occupying or administering a territory, directly or via a third party such as a local administration. This means that if airborne attacks were to be carried out on a territory occupied or administered by the UK, then such attacks would fall within the scope of the Convention. Likewise, if the UK were to administer foreign territory via a third party and this third party were to conduct such attacks, the UK may be held responsible for such attacks. Further, under the more relaxed test adopted by the Court explaining that influence by and dependence on another State might amount to jurisdiction (IlascuCatan et al v Moldova and Russia, Applications No 43370/04, 8252/05 and 18545/06, 19 October 2012) the UK could be held responsible for airborne strikes. As none of the aforementioned situations apply to the current military operations in Syria we contend that the Convention does not apply under this test.

That being said, the Court seems to be moving away from the high threshold of the ‘effective control’ terminology under the aforementioned tests and to prefer using a combination of ‘assumed authority’ threshold combined with a personal/jurisdictional link (Jaloud). The Court has so far dealt with two examples of situations of ‘assumption of authority’ or ‘assumption of exercise of public powers’. In the first one, such authority was based of the law of belligerent occupation (Al-Skeini); in the second, it was based on a United Nations Security Council Chapter VII mandate (Jaloud). Even if the ‘assumption of authority’ threshold were crossed, a jurisdictional link needs to be established. So far Court’s jurisprudence in this area has only established this link in situations where ground troops have been involved and where the troops acted in close proximity to the targeted individual (Al-Skeini, Jaloud). As the UK is neither a belligerent occupant in Syria nor acting in pursuance of a UN Security Council resolution and no ground troops are deployed in proximity to individuals, the Convention does not apply under this model of jurisdiction.

In conclusion current airborne operations carried out by the UK in Syria do not fall within the scope of applicability of the Convention and thus the UK cannot be held responsible for violations of the Convention.

Dr Noëlle Quénivet is an Associate Professor in International Law at the Faculty of Business and Law of the University of the West of England (United Kingdom) and holds a British Academy small grant award. Her research focuses on international humanitarian law, human rights law, international criminal law, post-conflict reconstruction, and gen­der and children in armed conflict. She has co-edited two books, one on the relation­ship between international humanitarian law and human rights law and another on international law in armed conflict.

Dr Aurel Sari is a Senior Lecturer in Law at the University of Exeter and a Fellow of the Allied Rapid Reaction Corps. His research interests lie in the field of public interna­tional law, with a particular focus on the legal aspects of military operations. He has published widely in leading academic journals on status of forces agree­ments, peace support operations, the law of armed conflict and other questions of operational law. He is writing in a personal capacity.