In the pending case of Hanan v. Germany, the Grand Chamber of the European Court of Human Rights (ECtHR) has the opportunity to provide much-needed clarity on the extraterritorial application of the European Convention on Human Rights. The underlying facts are tragic: the applicant alleges that Germany violated the Convention when it ordered an airstrike in Afghanistan that killed his 8- and 12-year-old sons. This case calls on the Court to revisit Banković and others v. Belgium and others, and clarify once and for all whether the Convention applies extraterritorially to victims of aerial bombardment.

Banković and Beyond

In its 2001 decision in Banković, the Court held that an airstrike in Belgrade did not fall within the jurisdiction of the Convention. The case concerned NATO airstrikes in the Former Republic of Yugoslavia that resulted in the deaths of sixteen persons. The Court dismissed the application by the victims’ relatives, holding, inter alia, that the Convention applies only where States have ‘effective control’ over the territory in question, such that the allied bombing mission fell outside the juridical space of the Convention.

However, in the nearly two decades since, the Court has expanded the extraterritorial application of the Convention in cases like Al-Skeini v. The United Kingdom, Jaloud v. The Netherlands, and Hassan v. The United Kingdom. In each of these cases, the Court affirmed that the Convention also applies where State agents exercise authority or control over an individual, and that the Convention can be ‘divided and tailored’ according to the particular circumstances of the extraterritorial act in question. But despite this change in course, the Court never expressly overruled Banković, and each of these judgments concerned ‘boots on the ground’ military operations – with troops exercising control over a particular area (for instance, a military checkpoint) or over a particular individual (such as a person taken into custody). This has left lingering uncertainty about whether the Convention applies extraterritorially to persons hit by aerial bombardment where the State lacks both personal and territorial control.

Hanan: A Run on the Bank(ović)?

With Hanan, the Grand Chamber has an opportunity to consider once again whether the Convention applies to airstrikes ordered by Member States outside their territorial jurisdiction. Like Banković, the airstrike at issue raises complex questions concerning jurisdiction and attribution, as it was undertaken pursuant to a United Nations Security Council-ordered allied mission. German troops were deployed to the Kunduz Region, and a German Colonel had command of the Provincial Reconstruction Team in the region. On September 3, 2009, after fuel tankers were hijacked by insurgents near the Kunduz River, the German Colonel ordered two United States Air Force airplanes to bomb the tankers. The airstrike killed a number of people, including the applicant’s sons.

The Court could choose to avoid addressing the status of Banković in Hanan, contributing further to the uncertainty concerning the Convention’s applicability to airstrikes abroad. It could, for instance, ground jurisdiction in the fact that in addition to the aerial bombardment, there were also German ‘boots on the ground’. Alternatively, it may skirt the Article 1 jurisdiction analysis altogether, and focus instead on the adequacy of the investigation undertaken by German troops following the airstrike. In Jaloud, the Court held that Member States would be afforded ‘reasonable allowances’ to account for the difficulties inherent in investigating the use of force in hostile territories abroad. The Grand Chamber suggested that context matters, but nevertheless found a violation in the investigation undertaken by Dutch forces following the death of an Iraqi national. In Hanan, the primary concern before the German national courts – and in the application before the ECtHR – has been the effectiveness of the investigation into the airstrike that led to the deaths of the applicant’s sons, and whether it complied with Germany’s positive obligations under Article 2 of the Convention.

However, one hopes the Court will use this opportunity to expressly overrule Banković and expand the extraterritorial application of the Convention to include State actions that directly and foreseeably impact individuals on the ground. Such an approach is advantageous for several reasons. First, it would do away with inappropriate and unprincipled distinctions between military action undertaken through airstrikes and those pursued on land. Second, this practical and effective interpretation is in line with the Court’s jurisprudence, and in keeping with the progressive approach of international bodies tasked with interpreting human rights instruments. Finally – and perhaps most importantly – it would ensure that States cannot do abroad what they cannot do at home.