These cases suggest that the courts
were applying full set of human rights and instruments of their protection to
persons, who were alleged terrorists and rule that the use of force was
undesirable, should other options be available. On the other hand, the
judgement of the ECtHR in case Ergi v.
Turkey (ECtHR 1998) was based on the application of humanitarian law rather
than human rights law – minimising of the loss of civilian life in the conduct
of hostilities against armed groups (in this case and operation against PKK
armed group) was to be the guiding principle under Protocol I and therefore,
limited and proportional civilian casualties resulting from the conduct of
hostilities were to be expected and permissible.
So, it would seem that the existing
jurisprudence establishes a distinction between two situations – the first,
where individual members of armed groups are killed in limited scope operation;
the second, where governmental armed forces are engaged in military operations
against an armed group. In the first case, human rights law prevails
as lex specialis, however, in the second case it is humanitarian
law that seems to inspire court rulings – at least implicitly, given the fact
that states typically do not acknowledge the internal conflict that would
substantiate the use of humanitarian law.
This fact in itself, would perhaps
not constitute a problem. Human rights law offers significantly more
comprehensive coverage to individuals against the use of force than the
humanitarian law – thus offering individuals high level of protection from
arbitrary use of force by state agencies in other than combat situations.
On the other hand, human rights courts seem to be willing to take into
regard humanitarian law if the case is clearly related to the conduct of larger
hostilities – thus allowing for high degree of protection of civilian
population, while acknowledging that certain civilian losses do occur in these
However, the problem remains in the
fact that if the state of non-international armed conflict is not acknowledged,
the rulings can only be governed by human rights law. And armed groups
are not considered to be a party to human rights treaties. Therefore,
only the state forces have obligations under its provisions, depriving
population under control of armed groups of any legal protection at all.
Perhaps a suggestion from Droege, that
human rights law should apply in situations where the state forces are in
effective control of a certain territory and humanitarian law in combat
situations, could be developed further and assign responsibility for
observation of human rights to armed groups in effective control of a given
territory. This solution would extend the same legal coverage to
civilians in the territory controlled by armed groups as to those in the
territory controlled by state agencies.
Yet, some practical difficulties
remain, of which two stand out particularly. First, armed groups are not
party to human rights treaties. However, they are not a party to
humanitarian law treaties either and their provisions do cover them.
Therefore, perhaps, this difficulty could be tackled on the basis of
customary law establishing the responsibility of even those groups that are not
a party to the treaties in question. The second difficulty is the
question of whether armed groups are indeed in effective control of territory
they dominate and are therefore able to take on a responsibility otherwise
assigned to a state.
It would seem that armed groups
at least in some cases do possess such a capacity. Moreover, the UN has
already acknowledged that individual members of armed groups can be held
responsible for breaching human rights, especially, if they constitute crimes
against humanity. So, it would seem that assigning responsibility for observing
human rights to armed groups in effective control of territory would offer
legal protection for civilians in situations of non-international armed
conflict unacknowledged by the given state.