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The facts of the case were contested. Applicants claimed that as a result of bombing from the air, 13 people in Koçağılı village and 25 people in Kuşkonar village lost their lives. Most of those who were killed were children, women, or elderly. Thirty-four of the dead, including seven babies and a number of older children, were the applicants’ close relatives. In addition, a total of 13 people, including some of the applicants, were injured. Most of the houses and livestock belonging to the applicants were also destroyed in the bombing. (§11) The Government denied any involvement of the state in the incident. (§20)
The applicants complained that the indiscriminate bombing of their villages had been in breach of Articles 2, 3, and 13 of the European Convention on Human Rights, guaranteeing the rights to life, freedom from torture, inhuman or degrading treatment or punishment, and to an effective remedy.
In its judgment, the Court found the applicants version of events more persuasive than the Turkish Government's and held Turkey liable for substantive and procedural violations of Article 2 (the right to life) and of Article 3 (freedom from torture).
On the basis of a flight log of a number of fighter jets belonging to the Turkish Air Force, the Court found that two F-4 fighter jets armed with two 454kg MK83 bombs and two F-16 fighter jets armed with four 227kg MK82 bombs had bombed the two villages, killing thirty-three of the applicants’ relatives and injuring three of the applicants. (§§84, 182-3)
With respect to the right to life, the Court considered that the attack on the applicants’ villages ‘which caused these three applicants’ injuries, was so violent and caused the indiscriminate deaths of so many people that these three applicants’ fortuitous survival does not mean that their lives had not been put at risk. The Court is thus satisfied that the risks posed by the attack to these three applicants call for examination of their complaints under Article 2 of the Convention...’ (§§142-3)
The Court considered
that an indiscriminate aerial bombardment of civilians and their villages cannot be acceptable in a democratic society …, and cannot be reconcilable with any of the grounds regulating the use of force which are set out in Article 2 § 2 of the Convention or, indeed, with the customary rules of international humanitarian law or any of the international treaties regulating the use of force in armed conflicts....’ (§§184-5)
Noting that the Government had ‘limited their submissions to denying that the applicants’ villages were bombed by aircraft, and have not sought to argue that the killings were justified under Article 2 § 2 of the Convention’, the Court does not concern itself with the question whether the use of these particular explosive weapons in the manner they were used and in the context of a populated area resulted in an indiscriminate attack, which could possibly be justified under IHL ‘in action lawfully taken for the purpose of quelling a riot or insurrection’ (in the context of an armed conflict) under Article 2(2)(c) of the Convention.
The applicants further complained that the terror, fear and panic created by the bombardment had amounted to inhuman treatment within the meaning of Article 3 of the European Convention on Human Rights. The applicants witnessed the violent deaths of their children, spouses, parents, siblings, and other close relatives, and ‘in the immediate aftermath of their relatives’ deaths, the applicants personally had to collect what was left of the bodies and take them to the nearby villages for burial, and, in the case of the applicants from Kuşkonar village, had to place the remains of the bodies in plastic bags and bury them in a mass grave’. Three critically injured applicants had to be taken to hospital on tractors by villagers from the neighbouring villages. In the Court’s assessment, ‘witnessing the killing of their close relatives or the immediate aftermath, coupled with the authorities’ wholly inadequate and inefficient response in the aftermath of the events, must have caused the applicants suffering attaining the threshold of inhuman and degrading treatment proscribed by Article 3 of the Convention’.
The Court also pointed to ‘the apparent lack of the slightest concern for human life on the part of the pilots who bombed the villages and their superiors who ordered the bombings and then tried to cover up their act by refusing to hand over the flight logs’ and ‘the national authorities’ failure to offer even the minimum humanitarian assistance to the applicants in the aftermath of the bombing’. The Court considered that ‘whether or not the purpose behind the bombing of the villages was to subject the applicants to inhuman treatment or to cause moral suffering is irrelevant’. The bombing of the applicants’ homes deprived them and their families of shelter and support and obliged them to leave the place where they and their friends had been living. The anguish and distress caused by that destruction, the Court found, was ‘sufficiently severe as to be categorised as inhuman treatment within the meaning of Article 3 of the Convention’.(§§199-213)
As relevant sources of international law, the Court identified common Art. 3 of the 1949 Geneva Conventions (§89) and quoted selectively from the provision:
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
(1) Persons taking no active part in the hostilities ... shall in all circumstances be treated humanely ... To this end the following acts are and shall be prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; ...
(c) outrages upon personal dignity, in particular humiliating and degrading treatment; ...
(2) The wounded and sick shall be collected and cared for.
The Court also identified the 1990 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials among the relevant international materials and quoted selectively from Principles 1, 6, 7, 8 and 9. (§90)
In its finding the Court mentioned ‘the customary rules of international humanitarian law or any of the international treaties regulating the use of force in armed conflicts’ and referred back to the passage quoting from Common Article 3 to the Geneva Conventions. (§184) Reference to Common Article 3 in this context may give the impression that the Court believed Common Article 3 applied to the conduct of hostilities. This is, however, generally agreed not to be the case. The reference is perhaps better understood in relation to the Applicants’ claim to have suffered inhuman treatment (Article 3 of the European Convention on Human Rights) as a result of the circumstances surrounding the bombing and its aftermath.
By referring to customary rules of IHL as well as to the BPUFF the judgement is also ambiguous in its characterisation of the bombardment as part of a law enforcement operation (to which IHL would not apply) or in the context of conduct of hostilities in an armed conflict (where IHL rules on the conduct of hostilities would be a specific standard of reference).
With respect to the burden of proof in the establishment of disputed facts, the Court noted that ‘It is inherent in proceedings relating to cases of this nature, where individual applicants accuse State agents of violating their rights under the Convention, that in certain instances solely the respondent State has access to information capable of corroborating or refuting these allegations. A failure on a Government’s part to submit such information as is in their hands without a satisfactory explanation may not only reflect negatively on the level of compliance by a respondent State with its obligations under Article 38 of the Convention, but may also give rise to the drawing of inferences as to the well-foundedness of the allegations.’ (§57)
Specifically, the Court considered ‘that villagers with no specialist knowledge of military aviation would naturally be unable to identify the type or make of fighter jets which flew over their villages at speeds of hundreds of miles per hour’ and that in light of this, the Court could not attach any importance to the conclusions reached by the military prosecutor and does not consider that they support the Government’s submissions’. (§§174-5)
This orientation has particular relevance for cases where the identification of the weapon(s) used or their delivery mechanism can help to exclude the involvement of actors other than agents of the respondent state and, thus, support claims of state involvement, as in the case of explosive weapons dropped from fighter jets.
Last updated on: 03 February 2015