These cases suggest that the courtswere applying full set of human rights and instruments of their protection topersons, who were alleged terrorists and rule that the use of force wasundesirable, should other options be available. On the other hand, thejudgement of the ECtHR in case Ergi v.Turkey (ECtHR 1998) was based on the application of humanitarian law ratherthan human rights law – minimising of the loss of civilian life in the conductof hostilities against armed groups (in this case and operation against PKKarmed group) was to be the guiding principle under Protocol I and therefore,limited and proportional civilian casualties resulting from the conduct ofhostilities were to be expected and permissible.So, it would seem that the existingjurisprudence 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 operationsagainst an armed group. In the first case, human rights law prevailsas lex specialis, however, in the second case it is humanitarianlaw that seems to inspire court rulings – at least implicitly, given the factthat states typically do not acknowledge the internal conflict that wouldsubstantiate the use of humanitarian law.
This fact in itself, would perhapsnot constitute a problem. Human rights law offers significantly morecomprehensive coverage to individuals against the use of force than thehumanitarian law – thus offering individuals high level of protection fromarbitrary use of force by state agencies in other than combat situations. On the other hand, human rights courts seem to be willing to take intoregard humanitarian law if the case is clearly related to the conduct of largerhostilities – thus allowing for high degree of protection of civilianpopulation, while acknowledging that certain civilian losses do occur in thesecases.
However, the problem remains in thefact that if the state of non-international armed conflict is not acknowledged,the rulings can only be governed by human rights law. And armed groupsare not considered to be a party to human rights treaties. Therefore,only the state forces have obligations under its provisions, deprivingpopulation under control of armed groups of any legal protection at all.Perhaps a suggestion from Droege, thathuman rights law should apply in situations where the state forces are ineffective control of a certain territory and humanitarian law in combatsituations, could be developed further and assign responsibility forobservation of human rights to armed groups in effective control of a giventerritory.
This solution would extend the same legal coverage tocivilians in the territory controlled by armed groups as to those in theterritory controlled by state agencies.Yet, some practical difficultiesremain, of which two stand out particularly. First, armed groups are notparty to human rights treaties. However, they are not a party tohumanitarian law treaties either and their provisions do cover them. Therefore, perhaps, this difficulty could be tackled on the basis ofcustomary law establishing the responsibility of even those groups that are nota party to the treaties in question. The second difficulty is thequestion of whether armed groups are indeed in effective control of territorythey dominate and are therefore able to take on a responsibility otherwiseassigned to a state.
It would seem that armed groupsat least in some cases do possess such a capacity. Moreover, the UN hasalready acknowledged that individual members of armed groups can be heldresponsible for breaching human rights, especially, if they constitute crimesagainst humanity. So, it would seem that assigning responsibility for observinghuman rights to armed groups in effective control of territory would offerlegal protection for civilians in situations of non-international armedconflict unacknowledged by the given state.