Musayev, Tabriz

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Narayan and Others v. AzerbaijanTabriz Musayev 2024-03-18T08:00:20IntroductionOn 19 December 2023, the European Court of Human Rights (ECtHR) deliveredits Judgement on the case of Narayan and Others v. Azerbaijan and establishedextraterritorial jurisdiction of Azerbaijan with respect to the substantive limb of theright to life of soldiers acting in an official capacity (para. 119). The Court thenfound the violation of the substantive limb of the right to life (para. 122). The caseoriginated in the military clashes between Azerbaijan and Armenia on 29 December2016, which led to the killing of one Azerbaijani and three Armenian soldiers (para.4). The ECtHR observed that the Azerbaijani soldier had entered the Armenianmilitary post and fired on Armenian soldiers. The attack resulted in the killing oftwo unarmed Armenian soldiers, ‘one while using the toilet and the second whileattempting to fill a water tank’ (paras. 92, 94, 95, 101, 105). The exchange of firingbetween the Azerbaijani soldier and the other Armenian soldiers rendered the killingof the former and the third Armenian soldier who repelled the attack (paras. 92, 94,95, 105).The ECtHR found that Azerbaijan exercised extraterritorial jurisdiction of stateagent authority and control (SAAC) over the first two soldiers (para. 108), not thethird Armenian soldier, ‘who himself had fired his gun in the direction of the enemybut was shot shortly afterwards’ (paras. 108, 109, 110). The Court’s reasoningstems from the fact that the distance between the Azerbaijani soldier and the thirdArmenian soldier was ‘around 60 to 70 m’, the crossfire took place ‘in conditions ofreduced visibility because of the fog and drizzle’, and the third Armenian soldier wasnot an unarmed target (para. 109).This blog post analyses whether the Court is consistent with its case law inestablishing the jurisdictional link and finding violation of the substantive limb ofthe right to life concerning the armed attack against enemy combatants during theactive phase of international armed conflict (IAC). The Court’s finding on SAACremains controversial. When a state agent attacks enemy, a state agent must bearthe adversarial effects of the attack, including the risks of repelling the attack duringthe active phase of IAC. In this respect, the state agent’s control is limited comparedto attacks against civilians or detention of civilians or combatants. However, theCourt disregarded the extent of control and mechanically applied the term of controlderived from other cases to this case without considering the status of the victims.Furthermore, the Court’s conclusion appears particularly curious to apply humanrights norms without taking international humanitarian law (IHL) into account whenit found the violation of the substantive limb of the right to life. The ECtHR did notexplain why the incident should not be assessed under IHL. Therefore, the Courtis inconsistent with its case law that interpreted violations of International HumanRights Law (IHRL) during IAC through the lens of IHL.- 1 -Reasoning of the State Agent Authority and ControlThe Court’s main reasoning on SAAC rests on whether a state agent exercises‘physical power and control over the men’s lives in a situation of proximate targeting’in the territory of another State. (para. 88). Therefore, the Court enumerated casesengaging in the extraterritorial application of the European Convention on HumanRights (see, see) including, the Öcalan, Issa, Pad, Andreou, Solomou cases andconcluded that ‘[i]n those cases, control over individuals … was sufficient to bring theaffected persons “under the authority and/or effective control of the respondent Statethrough its agents” (para. 86).Nevertheless, this analysis does not appear entirely tenable and appropriateconcerning the present case. This is because both Öcalan and Issa cases engagein the unlawful detention or arrest of victims, and the character of authority andcontrol in these cases are different from the present case, which engages in firingwithout capture or arrest. This is because ‘the concept of “[SAAC]” over individuals toscenarios going beyond physical power and control exercised in the context of arrestor detention’ (see, para.131).Moreover, unlike the enumerated cases, in this case, the victims were combatantsexercising their military functions regardless of the character of their activity duringthe attack. Although the first two victims were unarmed and did not realise thefunctions of direct firing, attacking or repelling the assault, they were combatantsacting in an official capacity. It follows that the character of authority and control inthe cases of engaging in an attack or shooting during the IAC is different from casesof detention, arrest and killing unarmed civilians. In the former cases, the control islimited because the state agent is in a situation of crossfire or attack, and the stateagent must bear an adversarial effect of an enemy’s firing that lessens the control.Thus, the Court’s finding is unreasonable because it equates civilians to belligerentsand less risky situations to cases carrying potential threats of death for state agents.The Harmonisation of IHL and IHRLDisregarding the interplay between IHL and IHRL is one of the main shortcomingsof the judgment that led to a further controversial finding of the violation of thesubstantive limb of the right to life. Nevertheless, harmonisation is a tool forinterpreting IHRL and IHL (see, p. 386). The ECtHR stressed that ‘the Conventionmust be interpreted in harmony with other rules of international law of which it formspart. This applies no less to [IHL]’ (see, para. 55). The Court went on to say thatthe right to life ‘should be interpreted in so far as possible in light of the generalprinciples of international law, including the rules of [IHL]’ (see, para. 102). Then,it concluded that ‘in cases of [IAC], where the taking of prisoners of war and thedetention of civilians who pose a threat to security are accepted features of [IHL],that Article 5 could be interpreted as permitting the exercise of such broad powers’,and IHL precludes a violation of Article 5 § 1 (see, paras. 104, 105).Furthermore, ‘where the armed forces of a state kill someone in the course of anarmed conflict the killing will be lawful provided it is consistent with IHL even if itresults from use of force which is not absolutely necessary’ from the perspective of- 2 -right to life (para. 111). In other words, violations of human rights norms exist whenthe IHL norms have been violated during IAC (para. 95). Notwithstanding, in thepresent case, the ECtHR did not analyse the interplay between the two regimesof international law and disregarded its own case law. Disregarding the interplaybetween IHL and IHRL by the ECtHR indicates the erosion of harmonisation.Nevertheless, actions that conform to IHL are not violations of IHRL. Therefore,particular questions arise about whether this incident occurred during the activephase of IAC.Is this Incident Part of IAC or ‘Short of War’?It is uncontroversial that the IAC between Azerbaijan and Armenia did not cease in2016 (see). First, the occupation by Armenia of the territory of Azerbaijan did notcease on the date of the incident. Second, when a state of war exists, the cessationof active hostilities and military operations ‘is not in itself sufficient to terminate thestate of war’ (see, p. 62). This is because the end of IAC is “the general close ofmilitary operations” (GC IV, Article 6). In IHL, “the general close of military operation”differs from “the cessation of active hostility” (see, p. 172). The cessation of activehostility may occur before the general close of military operations (see, para. 4454).Such cessations are temporary, and they do not terminate the hostility entirely.However, the end of IAC depends on whether the hostility terminates “with a degreeof stability and permanence” (see, p. 171). Otherwise, every lapse of and eachresumption of combat in the fighting would be considered as an end of the IAC orthe start of a new IAC, respectively (see, p. 171). The long-lasting armed conflicts,such as IAC between Armenia and Azerbaijan, consist of several stages of activehostilities, each of them having its beginnings and cessations. For instance, theactive hostilities of the 4-day war of April 2016, the 44-day war of 2020 and the 24-hour war of September 2023 show that the IAC between Azerbaijan and Armenia didnot cease on 29 December 2016.Whether this incident constitutes an act ‘short of war’ or a part of IAC wouldappear particularly curious. Incidents involving the use of force but not reachingthe threshold of war are characterised as ‘short of war’, such as exchanging firesbetween border patrols of neighbouring countries, using torpedos on vessels of orshooting down aeroplanes of the other state (see, p. 11). Since these incidents donot constitute armed conflict, IHRL takes primacy over IHL.If this incident had been isolated from the general context of IAC between Azerbaijanand Armenia, it might have been classified as an act short of war. However, thisattack should be assessed from the perspective of IAC. This is because the incidentfalls under the temporal and territorial scopes of IAC. The previous paragraphshowed that the IAC between Armenia and Azerbaijan existed on the date ofthe incident. Concerning territorial scope, IHL rules of IAC are applied “in anylocation where opposing State forces exercise belligerent activity against each otherirrespective of whether or not this activity occurs on their territories” (see, p. 187).However, the ECtHR did not provide any clarification that the incident in the presentcase should not be under IAC. Since this incident is analysed from the perspective ofIAC, IHL rules shall be applied to this case.- 3 -Application of IHLOne of the main challenges in applying IHL rules is whether the killing of an enemycombatant constitutes a violation of the right to life. With respect to IAC, all membersof the armed forces (except medical and religious personnel) of a party to theconflict are combatants (see, Rule 3; see, Article 43(2)). In IAC, ‘[u]nlike civilians,combatants – even if they do not pose an actual threat to the enemy at the time ofthe attack – may be directly targeted at any time until they surrender or are otherwisehors de combat’ (see, p. 21). In this case, although the first two soldiers did not posean actual threat to the Azerbaijani soldier at the time of attack due to being unarmedand realising different activities, they were legitimate targets. Therefore, attackingthem is not prohibited by IHL rules.Notwithstanding this, the ECtHR did not analyse the alleged attack of the Azerbaijanisoldier in light of IHL norms and found a controversial finding of a violation of thesubstantive limb of the right to life. Instead, the Court limited its reasoning of whetherthe attack was committed against armed or unarmed combatants. During IAC, theuse of lethal force is governed by IHL, although a state has obligations of the rightto life (see, p. 110). In this regard, the interplay between IHL and IHRL should beanalysed from the perspective of the harmonised interpretation of IHRL in light ofIHL. Thus, IHL norms should guide the determination of the violation of the rightto life during the IAC. However, the Court eschewed applying IHL in analysing thealleged violation of the right to life during IAC.ConclusionThe ECtHR’s reasoning for establishing the SAAC was based on the cases wherethe victims were civilians, but in the present case, the victims were combatants.Therefore, the Court should consider the state agent’s limited control over thecombatants during the active phase of IAC. If the Court had analysed the stateagent’s limited control, it would not have established extraterritorial application ofthe right to life. Moreover, the Court’s case law envisages the interpretation of IHRLin harmony with IHL, and when analysing the violation of the right to life during theIAC, the IHL should be taken into account. Nevertheless, the Court disregarded theprovisions of IHL in the present case.- 4 -

Narayan and Others v. Azerbaijan

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Narayan and Others v. Azerbaijan

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