The European court of human rights' incidental application of international criminal law and humanitarian law: A critical discussion of Kononov v. Latvia

Abstract

The European Court of Human Rights has the inherent jurisdiction to incidentally apply provisions pertaining to the domestic systems of the contracting states or belonging to other branches of international law (such as international criminal law and humanitarian law) whenever the Convention contains a renvoi to such bodies of law. Practice shows that the Court does apply these 'external' provisions, though not always accurately. For instance in the Kononov case, due to a misapprehension of the rules of humanitarian law on civilian immunity (and, as a consequence, of the secondary rules of international criminal law), the Court wrongly held that the respondent state breached Article 7 of the Convention in convicting the applicant of war crimes. As the Court declared itself competent to apply municipal law on the strength of the renvoi enshrined in the relevant provisions of the Convention, this article argues it should also have applied humanitarian law incidentally when dealing with human rights violations committed in time of armed conflict. © Oxford University Press, 2008, All rights reserved.