Who were the applicants?
- In this case before the European Court of Human Rights (“the Court”), which concerned an investigation into an airstrike in Afghanistan that killed the Applicant’s two sons. The two Afghan brothers, aged 8 and 12, were killed in an air-strike ordered by the German Government on 4 September 2009. It is estimated that between 14 and 142 Afghans died in the strike, of whom 14 to 113 were civilians.
- The significance of Hanan v. Germany rests on two main questions. The first 1) is whether the European Convention on Human Rights ("the Convention”) applies to the armed forces of Member States deployed abroad under Article 1. For this reason, a number of Member States’ governments, such as the British and French, were given leave to intervene in the case. The second question 2) pertains to Germany’s investigation into the airstrike, and whether this adequately fulfilled its procedural obligations under Article 2 of the Convention.
What was our argument?
- RSI made submissions on the following three issues:
- The extent of States’ jurisdiction in respect to human rights obligations applied extraterritorially in the context of an airstrike. Consistent with human rights treaties and the Court’s own jurisdiction, RSI argued that that the Court should apply a “functional” approach to jurisdiction. This would entail finding that jurisdiction exists for the purposes of the applicability of the Convention where it is within a state’s power to perform certain functions that are consistent with their ratification of the Convention – the protection of human rights, the investigation of human rights abuses, etc.
- The nature and scope of States’ duties to investigate violations of the right to life in international law. RSI submitted that regardless of the co-application of international humanitarian law, the ‘substance of investigatory obligation upon a State in relation to a potentially unlawful death remains constant,’ and demands the same key hallmarks as found in the Court’s jurisprudence.
- The nature and scope of the States’ duties to provide effective remedies for rights violations generally in international law, with specific analysis of the rights to truth and its impact on the adequacy of remedies under international law for rights violations.
Summary of the Court's decision
- With respect to point 1), the Court held that the scope of the Convention could be extended in this case to extra-territorial armed conflicts as there was a “jurisdictional link” requiring Germany to investigate the airstrikes in Afghanistan. The Grand Chamber relied on a “special features” test (Güzelyurtlu v. Cyprus and Turkey) to establish a jurisdictional link. Three “special features” were found here: (1) Germany’s obligation under customary international law to investigate the airstrike; (2) the Afghan authorities were prevented, for legal reasons, from themselves instituting a criminal investigation as a result of the exclusive jurisdiction provision in the ISAF Agreement; and (3) the fact that the German prosecution authorities were under a domestic law obligation to institute a criminal investigation.
- With respect to point 2), the Court held that there was no violation and that the investigation into the deaths of the applicant’s two sons complied with the requirements of an effective investigation under Article 2. It agreed that while the German prosecution’s measures were not ideal (e.g. the investigation remained at the preliminary investigation stage for about six months) this was merely “regrettable, [and] did not affect the effectiveness of the investigation”.
What will this mean for our work going forward?
- In our intervention, RSI supported its colleagues in their attempts to re-apply established rule of law principles to the changing nature of the conflict. This case contributes to our ongoing commitment to advocacy surrounding thorough investigations of violations of the right to life.