Chapter

The problems the European Court of Human Rights faces in applying international humanitarian law

Joana Abrisketa Uriarte

The humanitarian challenge : 20 years European Network on Humanitarian Action (NOHA)

London [etc.] : Springer, 2015

p. 201-220

English

Bibliographie : p. 219-220

The European Court of Human Rights (ECtHR) is increasingly receiving applications relating to armed conflict or other types of situations of violence resulting primarily from the deployment of military forces of the Council of Europe’s member States in foreign countries, or even within their own borders. Although the Strasbourg Court almost exclusively relies on the European Convention on Human Rights (ECHR) it could, for specific cases, rely on other bodies of international law, such as international humanitarian law (IHL). This article explores why the Court rarely explicitly refers to IHL principles while judging cases and prefers to examine armed conflict and violence situations in the light of the ECHR. In order to do so, the author examines the relation between IHL and the ECHR through the cases developed by the Strasbourg Court, centering his analysis on three specifics problems faced by the Court: situation of occupation; exercise of overall and/or effective control over part of a foreign territory in the context of an international mission and internal armed conflict. He therefore presents an overview of relevant case law and demonstrates the evolution of the impact – if any – of IHL on the Court’s decisions through recent times while highlighting the way(s) it helped to shape the Court’s own approach derived from European human rights law concerning armed conflict situations within its jurisdiction. [Summary by students at the International Criminal and Humanitarian Law Clinic, Laval University]

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• The humanitarian challenge : 20 years European Network on Humanitarian Action (NOHA) / Pat Gibbons, Hans-Joachim Heintze (eds.)