5. Applying Human Security in the Danish Military Manual
5.3. Human Rights Abroad: Where to Draw the Line?
1) Identification of factual circumstances and legal background
This part should consist of a thorough assessment of the potential partner and its obligations and how the partner understands those obligations under international law, its past practice and records of compliance with international law etc.
2) Identification of risks
This part should consist of training officials to recognize the risks of assistance, among other things ensuring that structures are in place to enable reporting and that there is a procedure for concerns to be elevated to ministerial level.
3) Strategies to mitigate risks
This part should enable Denmark to maintain a degree of control of its cooperation partner/its assistance and to pause or withdraw if conditions are not fulfilled. This could be done by developing policies that conditions the partnership/assistance.
4) Taking the final decision.
Furthermore the thesis wishes to propose a systematic and continuous assessment as long as the cooperation takes place. Thereby, it should be clarified more clearly in the military manual how Danish forces should react in case they become suspicious of violations of either IHL or HRL by partners on the ground.
In section 3.3.1. the thesis presented the debate about article 1 of ECHR, and how the ECtHR has chosen to interpret state jurisdiction abroad relative to that. While the ECtHR does apply extraterritorial jurisdiction, it is only on an exceptional basis, meaning that article 1 of the convention primarily reflects the “ordinary and essentially territorial notion of
jurisdiction.”332 Therefore, extraterritorial jurisdiction requires special justification in the particular circumstances in each case.333 In Bankovic and others v. Belgium and others, the Court rejected a human rights responsibility for the killing of individuals by the NATO forces during the Kosovo war in 1999 on the basis of a rejection of extraterritorial jurisdiction,334 whereas it admitted a responsibility for the killings of individuals in Al-Skeini and Others v.
the United Kingdom on the basis of a confirmation of extraterritorial jurisdiction.335 It should be noted that in Al-Skeini, the Court was not asked to address whether the killing was a violation of article 2 of the ECHR (the right to life) per se, but only to address a breach of article 2 on the basis of procedural guarantees.336 Nevertheless, the conclusion that UK did hold a responsibility in relation to its obligations under ECHR, confirms HRL’s applicability extraterritorially in the case. The remaining question is of course whether the Court would have applied a different reasoning had it been faced with a complaint regarding the actual deprivation of life under article 2. The Court rejected Bankovic based on the lack of ‘effective control’ and confirmed Al-Skeini based on the existence of ‘effective authority’. The problem is that in both situations the intervening states do actually exercise enough control to kill the concerned individuals.337 From a legal point of view the Court's interpretation of article 1 can be defended based on the two different models for when extraterritorial jurisdiction applies, but the thesis is not content with that. Rather it wishes to discuss whether this interpretation advances Danish objectives when engaged in new wars. The Court’s conclusions question the universality of the human rights regime, and conflicts with a human security approach that
332 Banković and Others v. Belgium and Others, Grand Chamber Decision as to the admissibility of Application no. 52207/99, European Court of Human Rights, 12 December 2001, para. 61.
333 Banković and Others v. Belgium and Others, Grand Chamber Decision as to the admissibility of Application no. 52207/99, European Court of Human Rights, 12 December 2001, para. 61.
334 Banković and Others v. Belgium and Others, Grand Chamber Decision as to the admissibility of Application no. 52207/99, European Court of Human Rights, 12 December 2001, para. 82.
335 Al-Skeini and Others v. the United Kingdom, Judgement, European Court of Human Rights, 7 July 2011, para. 149.
336 Al-Skeini and Others v. the United Kingdom, Judgement, European Court of Human Rights, 7 July 2011, para. 3.
337 Marko Milanovic, “European Court Decides Al-Skeini and Al-Jedda,” Blog of the European Journal of International Law, 7 July 2011 (available at: https://www.ejiltalk.org/european-court- decides-al-skeini-and-al-jedda/).
requires the intervening power to respect human rights and protect individuals. The following will present another interpretation better placed to answer to a new war development.
The question of the universality of the human rights regime has to be seen in relation to its effectiveness, i.e. it would be utopian to claim that all states had responsibilities vis-a-vis all individuals in the world at all times, and thus, the jurisdiction clauses of the human rights treaties place a limit, requiring that states who can effectively ensure the protection, do so. In the ECtHR’s interpretation, in which the responsibility rests primarily within the territory, the responsible state is the sovereign residing within the given territory. But what if a foreign state could also realistically and effectively keep the human rights obligations? If we do not confine our interpretation of jurisdiction to that of territorial sovereignty, the way we look at operations abroad changes considerably. Take for instance Denmark’s interventions in Afghanistan and Iraq, noticeable for the Afghan and Iraqi authorities’ loss of control in some parts of the countries. In such situations, in which the national authorities are not able to ensure the human rights of its citizens, it makes sense to argue that the intervening powers will have an equal responsibility, if they can realistically keep that (and not only on an exceptional basis), i.e. if they have sufficient degree of control over a territory. An interpretation that does not consider a sovereign territorial claim as the primary notion of jurisdiction, but instead whether the state exercise enough control over a given territory to affect its inhabitants, will provide a better security for the individuals residing there.
Furthermore, sovereignty is essentially the exercising of control over territory, not something that can be confined to a title.338 This interpretation also means that the national authorities’
responsibility only rests on their control over their territory, and thereby, there is, in principle, no difference between intra- and extraterritorial application of a human rights treaty.339 Going back to the ECtHR’s decisions in Bankovic and Al-Skeini, the intervening states had the ability to respect the lives of the applicants, however, they might not have had the ability actively ensure the lives of the applicants. Therefore, there needs to be a distinction between the negative and the positive obligations included in the ECHR (see 3.2.2.), i.e. between the ability to respect a life, and the ability to actively ensure/protect a life. This distinction is based on the difference between the ability to control the actions of your own and the ability to control the action of others: “when it comes to the negative obligation to respect human rights, no threshold criterion should apply because states can always control the actions of
338 Milanovic, supra note 158, 61.
339 Milanovic, supra note 158, 118.
their organs or agents.”340 However, the positive obligations will still be confined to an overall control of territory that makes it possible to also control the actions of others, and thereby, actively ensure human rights.341
This interpretation of article 1 of the ECHR will be in better conformity with the human security approach, as it places focus on the protection of the individual in the manuals international operations, and does not draw an arbitrary line between protection afforded at home and abroad. Furthermore, given that Denmark often engages in international operations on a mandate to ensure human rights abroad, Danish armed forces needs to be extra careful not to violate human rights, because the bar is simply higher for such operations. Therefore, an application of human rights, only in exceptional circumstances, seriously undermines Denmark’s contribution to successfully carry out its overall objective in these engagements.
Regardless of the mandate, the human security approach requires an enlarged focus on the protection of human rights in order to address new wars, which is equally incompatible with the exceptional application abroad.
5.3.1 Policy Recommendation: Expanded Extraterritorial Application of Human Rights The thesis recommends that the manual does not only apply the European Convention of Human Rights extraterritorially under exceptional circumstances, but that it insists on the applicability of its negative obligations in international operations, regardless of the perceived control over territory or individuals.
To sum up, the thesis proposes that the manual:
● Apply the ECHR extraterritorially, not only on an exceptional basis, but that it insists on an obligation to respect the convention in international operations
● In situations, in which the Danish armed forces have the effective overall control of an area, also insist on an obligation to actively secure or ensure the convention in international operations
340 Milanovic, supra note 158, 119.
341 ibid.