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Who’s Afraid of Human Rights in War? (Part I)

On the Place of the ECHR during Armed Conflict in Response to a Misguided Critique of Narayan and Others v. Azerbaijan


From the ravaged streets of Gaza to the decimated cities of Ukraine, the calamitous consequences of disavowing international human rights law (IHRL) in situations of armed conflict have seldom been as self-evident as they are today. In this light, efforts to propagate antiquated formulations of the application of IHLR during armed conflict and the relationship between international humanitarian law (IHL) and IHRL must be met with redoubled skepticism and principled criticism. In critiquing the recent Narayan and Others v. Azerbaijan judgment of the European Court of Human Rights (ECtHR), Tabriz Musayev, a senior consultant for the Respondent State, has leveled a spurious argument against the application of the ‘state agent authority and control’ (SAAC) model of jurisdiction, also known as the personal model of jurisdiction, under Article 1 of the European Convention on Human Rights (ECHR) during armed conflict. This post seeks to dispel some of the criticisms of Narayan leveled by Musayev in his article.

Jurisdiction under SAAC, which provides that “the use of force by a State’s agents operating outside its territory may bring the individual thereby brought under the control of the State’s authorities into the State’s Article 1 jurisdiction” (Al-Skeini v. UK, para. 136), is integral to the construction of the ECHR’s safeguard of human rights during armed conflict, where members of States’ armed forces frequently act extraterritorially in areas where they have not established effective control. Enduring challenges to IHRL’s potency during armed conflict like those Musayev levels raise a long-reverberating question: can we genuinely profess fealty to the lofty ideals of human dignity and common humanity if we permit human rights to be effectively abrogated at the very moments they are needed most?

This response is divided into two parts. Part I first provides some factual contextualization of Narayan within the broader Nagorno-Karabakh conflict, before proceeding to critique Musayev’s argument that SAAC jurisdiction is confined to situations of physical control or detention, a position patently incompatible with the ECtHR’s assessments of respondent States’ jurisdiction under Article 1 across previous cases involving the use of armed force by State agents. Part II then addresses Musayev’s spurious argument concerning what he terms ‘short wars’, noting its irresponsible conflation of jus ad bellum and jus in bello in determining the scope of application of IHL. Lastly, I address Musayev’s flawed framing of the interaction between IHL and the right to life under Article 2 of the ECHR.

The Nagorno-Karabakh Conflict and the Context of Narayan 

The Narayan case emerged from two of thousands of individual applications lodged before the ECtHR relating to the ongoing armed conflict between Armenia and Azerbaijan, primarily over the disputed (now formerly) ethnically Armenian populated enclave of Nagorno-Karabakh which, while de jure Azerbaijani territory, was governed as a de facto independent Armenian state until September 2023. As the dynamics of the conflict have shifted significantly in recent years, it bears recalling the circumstances, particularly as they concern the Respondent State, Azerbaijan, during the events of the Narayan case.

After a 1994 Russia-brokered ceasefire froze the Nagorno-Karabakh line of contact, an uneasy peace—punctuated by frequent border skirmishes—prevailed between Azerbaijan, the Armenians of Nagorno-Karabakh, and Armenia (that is, until 2016). On 1 April 2016, Azerbaijan’s armed forces launched an offensive along the northern portion of the Nagorno-Karabakh line of contact, leading to a brief yet intense four-day armed conflict.

To the events of Narayan: on 29 December 2016, an Azerbaijani soldier, Çingiz Gurbanov, entered an Armenian military outpost and shot and killed three Armenian soldiers. One was shot “while using the toilet and the second while attempting to fill a water tank, both having been unarmed and wearing civilian clothing at the time of the shooting” (para. 101). The third was armed and “had been shot in the head after having himself fired a few shots blindly, while attempting to visually identify and neutralise the shooter” (para. 101). Gurbanov was himself shot and killed by Armenian reinforcements. He was later posthumously awarded the title ‘National Hero of Azerbaijan’ by President Ilham Aliyev “for his outstanding achievements in the protection of Azerbaijan’s territorial integrity and personal bravery shown in a combat mission.”

The ECtHR found Azerbaijan to be responsible for both substantive and procedural breaches of Article 2 of the ECHR (the right to life). Regarding the substantive violation, the Court found Azerbaijan’s Article 1 jurisdiction to be based on the personal model, concluding that the State exercised SAAC jurisdiction over the two Armenian soldiers who were caught by surprise by Gurbanov. Azerbaijan was also found have violated its procedural obligation under Article 2 due to the uncontested fact that its “authorities have not initiated or conducted any investigation into the circumstances of the death of the applicants’ relatives” (para. 125).

The Nagorno-Karabakh conflict is subject to seven inter-State cases currently pending before the ECtHR, including two before the Grand Chamber. The Grand Chamber has heard two significant cases relating to the conflict, Sargsyan v. Azerbaijan and Chiragov and Others v. Armenia, both decided in 2015. The ECtHR’s finding in Narayan that Azerbaijan has violated its obligations under Article 2 of ECHR must be seen in the context of this State’s abysmal human rights record and history of non-compliance with the judgments of the ECtHR (see the findings of the Committee of Ministers on Azerbaijan’s non-compliance with Sargsyan here and with the Makuchyan and Minasyan v. Azerbaijan and Hungary judgment here).

The situation of Nagorno-Karabakh has drastically deteriorated since 2016. Following a nine-month-long blockade and a swift military offensive in September 2023, the Azerbaijani State forcibly displaced almost the entire ethnic Armenian population of the enclave in what the both the Parliamentary Assembly of the Council of Europe and the European Parliament regarded as an act of “ethnic cleansing.” Accordingly, the legal issues raised by Musayev in the context of Narayan are of far greater consequence beyond any singular case, encompassing common themes that the ECtHR is poised to face time and again as it adjudicates not only Armenia and Azerbaijan’s inter-State cases, but also the thousands of individual applications lodged by victims of the conflict, particularly from those amongst the 100,000 displaced Nagorno-Karabakh residents now living as refugees in Armenia.

An Appropriately Expansive View of SAAC Jurisdiction

The crux of Musayev’s critique of Narayan lies in his claim that its application of SAAC jurisdiction is inconsistent with past cases where the ECtHR affirmed States’ applied the personal model of jurisdiction only where victims were detained or in the literal physical control of State agents. He cites Öcalan v. Turkey and Issa and Others v. Turkey in this regard, additionally highlighting that, in these cases, the victims were not combatants (this latter point will be dealt with later in the context of the interplay between IHL and IHRL). Most fundamentally, the assertion that the ECtHR has only applied SAAC in situations where State agents exercise effective physical control of victims is patently false, and the selection of Öcalan and Issa to suggest otherwise is, at best, misinformed and, at worst, bad faith and deceptive. In Al-Skeini, the Grand Chamber explicitly provided that SAAC jurisdiction in the case at hand did not arise “solely from the control exercised by the Contracting State over the buildings, aircraft or ship in which the individuals were held”, and that, instead, “[w]hat is decisive in such cases is the exercise of physical power and control over the person in question” (para. 136). The SAAC principle is not limited to cases of detention or arrest but applies expansively and equally to situations where State agents exercise authority and control through the use of force, as was the case in Narayan.

In the seminal case of Jaloud v. the Netherlands, the Grand Chamber of the ECtHR unanimously found that a victim who “met his death when a vehicle in which he was a passenger was fired upon while passing through a checkpoint [in Iraq] manned by personnel under the command and direct supervision of a Netherlands Royal Army officer” fell under the jurisdiction of the Netherlands for the purpose of Article 1 of the ECHR as it “assert[ed] authority and control over persons passing through the checkpoint” (para. 152). In Andreou v. Turkey, the Court found that the victim, who had been fired upon in a funeral procession by Turkish forces in Cyprus, fell under Turkey’s Article 1 jurisdiction through SAAC despite Turkish troops never having established effective control over either the territory in question or the victim’s person (para. 25). The Court reached the same conclusion regarding a materially similar fact pattern in Solomou and Others v. Turkey (paras. 48–51). Moreover, in Pad and Others v. Turkey, the Court found SAAC to furnish Turkey’s jurisdiction over persons Turkish forces fired upon from helicopters in an area outside their effective control (para. 54). Such persons were not in the physical custody or detention or Turkish State agents but were rather subject to their ‘authority and control’ by virtue of the latter’s use of force against them.

But I am not alone in pointing out that the ECtHR’s SAAC jurisprudence does not confine the personal model of jurisdiction to situations of effective physical control or detention; I am, rather, joined by the Grand Chamber of the Court. In its rightly-lambasted Georgia v. Russia (II) judgment, the Grand Chamber conceded that “in other cases concerning fire aimed by the armed forces/police of the States concerned, the Court has applied the concept of “State agent authority and control” over individuals to scenarios going beyond physical power and control exercised in the context of arrest or detention” (para. 131, emphasis added). It thereby endorsed the propriety of this approach after citing a number of past cases, including several of those described above (paras. 117–24). This understanding of SAAC applying outside physical control and detention furthermore represents the orthodox view of Article 1 jurisdiction amongst the scholarly community (see, e.g., Milanovic, pp. 190–91; Schabas, p. 101; Park, pp. 77–83).

To accept otherwise—as Musayev has—would result in an absurd interpretation of Article 1 permitting States to “do abroad what they are not allowed to do inside their borders” (Ryngaert, p. 60). While doubts existed as to whether the Grand Chamber had embraced this expansive approach to SAAC jurisdiction in Al-Skeini (e.g., Al-Saadoon Court of Appeal Judgment), now, after Georgia v. Russia (II), this broad construction of personal jurisdiction cannot seriously be contested.

The Court cited its prior jurisprudence in Narayan when affirming that two Armenian soldiers killed by the Azerbaijani soldier in question, Mr Gurbanov, “were taken by complete surprise when they were shot, and had therefore without a doubt been unable to do anything to escape the situation”, with the consequence that “it may be easily concluded that they were under the physical control of Mr Gurbanov, who wielded power over their lives” (para. 108). While the Grand Chamber did not discuss the rationale behind this properly expansive view of SAAC jurisdiction in extenso in Georgia v. Russia (II), in considering Al-Saadoon at the Divisional Court level, Mr. Justice Leggatt (now Lord Leggatt, Justice of the UK Supreme Court) has offered a most compelling explanation in its stead:

I find it impossible to say that shooting someone dead does not involve the exercise of physical power and control over that person. Using force to kill is indeed the ultimate exercise of physical control over another human being. Nor as it seems to me can a principled system of human rights law draw a distinction between killing an individual after arresting him and simply shooting him without arresting him first, such that in the first case there is an obligation to respect the person’s right to life yet in the second case there is not (para. 95).

In Georgia v. Russia (II), Judge Pinto de Albuquerque similarly opined that ‘the shooting of an individual by State agents constitutes the ultimate form of the exercise of State control’ (partly diss. op. Judge Pinto de Albuquerque, para. 9; see also joint partly diss. op. Judges Yudkivska, Wojtyczek, and Chanturia, paras 4–5). In advancing an argument against the ECtHR’s affirmation of SAAC jurisdiction over individuals beyond Azerbaijan’s direct physical control or detention in Narayan, Musayev manages to advocate for an even more egregiously backwards-looking approach than the already regressive Georgia v. Russia (II) Grand Chamber judgment. Moreover, while the specific fact-pattern of Narayan, that is, the surprise attack in the context of which the Armenian soldiers were killed, distinguishes the case from others of the ECtHR relating to armed conflict, the Narayan judgment’s more permissive approach to SAAC represents a small but nonetheless welcome contribution to pushing the needle of the Court’s Article 1 jurisprudence back towards Al-Skeini and away from the Banković-haunted land of IHLR ‘grey zones’ toward which Georgia v. Russia (II) swung it.

Mischa Gureghian Hall

Mischa Gureghian Hall is a W.M. Keck Research Fellow at the University of California, Los Angeles (UCLA) and a Legal Researcher for the Center for Truth and Justice. His research interests are in international criminal law, the intersections of international humanitarian law and human rights law, and the role of international courts and tribunals in upholding such norms.

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