The European Court of Human Rights (ECtHR) recently handed down its hotly anticipated judgment in the case of Hanan v. Germany, holding that an airstrike carried out by German troops created a jurisdictional link for the purposes of human rights obligations.
THE FACTS OF THE CASE
Along with other member states of North Atlantic Treaty Organization (NATO), Germany contributed troops to the International Security Assistance Force (ISAF), a NATO-led mission in Afghanistan. At its peak, more than 5,000 German troops served in ISAF. In 2009, an airstrike responding to a German call in the village of Kunduz killed over 100 civilians. This included two young sons, Abdul Bayan and Nesarullah, of the ECHR case applicant Abdul Hanan. The devastating civilian toll prompted an uproar both in Germany and internationally.
The applicant brought a complaint before the Court, arguing that the investigation into his sons’ deaths by German forces was inadequate and amounted to a violation of article 2 of the European Convention on Human Rights (the Convention). Article 2, which protects the right to life, has two strands in its case law: the substantive arm, requiring respect for the right to life, and a procedural arm, requiring states to investigate deaths properly. It is the latter that formed the basis of the applicant’s claim.
ARMED CONFLICT AND THE CONVENTION
Hanan argued that his sons were subject to Germany’s jurisdiction. This was because, despite being in Afghanistan, Germany exercised “control” over them, both because they were able to affect the rights of the children and because a “jurisdictional link” between German agents and his sons was established by the initial, inadequate investigation into their deaths.
These kinds of cases before the Court, which centre on obligations owed by states to persons outside their territory (“extra-territorial”), have a somewhat chequered history. The first big case discussing these issues in the context of armed conflict was Bankovic v. Belgium. This complaint arose from the NATO bombing campaign in Belgrade, Serbia during the conflict in the former Yugoslavia. In that case, the applicants’ family members were killed after a NATO aircraft hit the building they lived in. The Court rejected the argument of the applicants that Belgium exercised jurisdiction over Belgrade at the time, stating that Belgium did not have “effective control” over the area. Since Bankovic, the understanding has been that airstrikes and bombing campaigns, although doubtlessly interfering with human rights, will not give rise to a jurisdictional link between the state and the applicant.
Since the Bankovic decision, the Court’s case law in respect to human rights obligations owed in armed conflict has developed considerably. In cases such as Al-Skeini and Al-Jedda, the UK was found to have exercised extra-territorial jurisdiction in Iraq while part of the Coalition Provisional Authority and was held responsible for serious human rights violations committed there. The significant developments in the jurisprudence that took place since the Bankovic decision meant that lawyers and civil society actors followed the decision in Hanan closely.
THE COURT’S DECISION
On 16 February 2021, the Court decided Hanan and held that Germany did exercise jurisdiction over the applicant’s children at the time of the airstrike.
Although it ultimately found that there was no violation of the procedural limb of article 2, the Court accepted the applicant’s argument that “the institution of that investigation or those proceedings is sufficient to establish a jurisdictional link”. This conclusion built on the 2019 findings by the Grand Chamber’s decision in Güzelyurtlu v. Cyprus and Turkey, in which the Court found that the criminal investigation carried out by the state into deaths that took place outside their territory sufficed to establish a jurisdictional link.
The Court was, as ever, cautious in emphasising the fact-specific nature of its decision. Nonetheless, its decision is a decisive departure from the conservative decision in Bankovic. The main significance of the decision is that it opens the door for future complaints to be brought against the Convention’s member states. Nearly half of all European countries are currently equipped with armed drones. Although precise figures are not available owing to the sensitive nature of this data, a 2016 investigation by Vice revealed the extent of the UK’s covert involvement in US drone strikes in Yemen. France launched its first drone strikes in Mali in 2019. The judgment will doubtless prompt the European countries currently engaged in drone warfare to rethink their current approach and ensure that they investigate all civilian deaths thoroughly and transparently.
The decision in Hanan makes clear that countries engaged in drone warfare will no longer be able to evade liability where their strikes result in the deaths of civilians. Even if the outcome was disappointing for Mr. Hanan, for human rights advocates, it is a step in the right direction.
Claudia is an LLM candidate in Public International Law at the London School of Economics. Currently working at a genocide education and prevention charity, her key interests are in international criminal law and post-conflict justice. Claudia is also a Trustee of a legal advice charity and a Fellow of the human rights charity Rene Cassin.