In Honor of Françoise Hampson – The Persistent Challenge of IHRL Bodies’ Review of Battlefield Situations

Editors’ note: This post is part of a series to honor Françoise Hampson, who passed away on April 18, 2025. These posts recognize Professor Hampson’s work and the significant contribution her scholarship made to our understanding of international law.

In 2022, Françoise Hampson (one of the most impressive international humanitarian law (IHL)/international human rights law (IHRL) scholars, practitioners, and persons I have ever had the good fortune to work with) published a mini-series of two posts on Articles of War. In the first, she claimed that “courts have clearly and consistently established that [human rights law] generally applies extraterritorially to areas and persons over which States exercise control, even if the notion of control is not yet fully established.”

As I discuss below, the recent judgment of the European Court of Human Rights (ECtHR) in Ukraine and the Netherlands v. Russia (2025) largely vindicates her approach to extra-territoriality, offering a course correction from the detour taken in the controversial Georgia v. Russia (II) (2021) case.

In the second, related post, she maintained the following.

The evidence to date suggests that [human rights] bodies can handle appropriately cases arising out of armed conflict in which the State seeks to rely on [the law of armed conflict (LOAC)]. This does depend on States pleading cases constructively and on third-party interventions setting out the interpretation and application of LOAC in a responsible way.

In this respect, recent developments (especially involving the work of UN human rights bodies reviewing Israel’s conduct in the recent war in Gaza) put in doubt Hampson’s somewhat sanguine prediction. Rather, they send us back to the historic concern expressed by Jean Pictet that only non-political IHL-monitoring bodies, like the International Committee of the Red Cross (ICRC), have a chance of succeeding in accessing battlefields and ensuring protection for victims (p. 15).

Application of IHRL to the Battlefield

Some States have claimed over the years (see, e.g., here and here) that the lex specialis nature of IHL as a body of law specifically tailored to regulate armed hostilities bars the application of IHRL to battlefield situations. This position has been largely debunked following the International Court of Justice’s Nuclear Weapons advisory opinion (1996), which embraced a parallel co-application model (albeit with IHL being, as a rule, normatively dominant as the lex specialis, with IHRL playing a complementary role).

Thereafter, opposition to the application of IHRL norms to the battlefield has mostly revolved around questions of extra-territorial jurisdiction. The ECtHR agreed to apply the European Convention on Human Rights in situations where States exercise effective control over foreign territory and/or over persons they hold in their physical custody (see e.g., Loizidou and Al Skeini), but refused to apply it to other situations involving active cross-border hostilities, such as aerial bombing (see e.g., Bankovic).

The effect of this jurisdictional act of delimitation has been to retain, as a practical matter, the exclusive application of IHL to many, if not most, battlefield situations featuring extra-territorial military operations.

With the move of other human rights bodies towards more functional jurisdiction tests, such as the direct and reasonably foreseeable impact test (see Human Rights Committee, General Comment 36, para. 63), the ECtHR found itself increasingly isolated among IHRL bodies in its approach. Still, in Georgia v. Russia (II), it doubled down on the traditional conditions for extra-territorial application of the European Convention and introduced a new “context of chaos” test for excluding battlefield situations from its scope of jurisdiction.

126. In that connection it can be considered from the outset that in the event of military operations – including, for example, armed attacks, bombing or shelling – carried out during an international armed conflict, one cannot generally speak of “effective control” over an area. The very reality of armed confrontation and fighting between enemy military forces seeking to establish control over an area in a context of chaos means that there is no control over an area. This is also true in the present case, given that the majority of the fighting took place in areas which were previously under Georgian control.

Applying this new test, the Court held that Russia did not exercise effective jurisdiction under the Convention in respect of events that took place in the first five days of active fighting in the Russia-Georgia war (August 8-12, 2008).

Hampson was critical of this decision, suggesting that the real problem for the Court might have been establishing the facts and not establishing jurisdiction. Her approach was largely vindicated by the recent decision of the ECtHR in Ukraine and the Netherlands v. Russia, which appears to walk back, or at least significantly narrow, the relevance of the “context of chaos” test. In reviewing jurisdiction over Russia in respect of military operations that took place in the actual theatre of hostilities in East Ukraine, the Court held,

361. The reality of the extensive, strategically planned military attacks perpetrated by Russian forces across Ukrainian sovereign territory between 2014 and 2022, carried out with the deliberate intention and indisputable effect of assuming authority and control, falling short of effective control, over areas, infrastructure and people in Ukraine, is wholly at odds with any notion of chaos (compare Georgia v. Russia (II), cited above, §§ 137‑38, summarised at paragraph 355 above). The Court concludes that in planning and in executing, directly or via the armed forces of the “DPR” and “LPR”, its military attacks across Ukrainian territory with a view to acquiring and retaining effective control over areas of sovereign Ukrainian territory and thereby removing those areas from the effective control of Ukraine, the Russian Federation assumed a degree of responsibility over those individuals affected by its attacks (see paragraph 354 above). In these circumstances, the Russian Federation exercised, through its de jureand de factoarmed forces, authority and control over individuals affected by its military attacks up until 16 September 2022. Such individuals therefore fell within the jurisdiction of the Russian Federation for the purposes of Article 1 of the Convention. It follows that the Russian Federation was under an obligation pursuant to Article 1 to secure to individuals affected by its military attacks the Convention rights and freedoms relevant to their situation (see, mutatis mutandis, Al-Skeini and Others, cited above, § 137).

In alluding to “the deliberate intention and indisputable effect” to assume authority and control, the Court appears to have limited considerably the normative gap between its jurisprudence and the approach of the Human Rights Committee. (The Committee’s aforementioned general comment considers jurisdiction to be founded on direct and reasonably foreseeable impact on the right in question).

The upshot of this development is that many extra-territorial military operations, including the downing of flight MH-17 by a missile shot from separatist controlled territory (paras. 452-65) and heavy artillery shelling of Ukrainian civilian objects (paras. 747-72), would now fall within the purview of the Convention. Still, the convoluted language of the first sentence of para. 361 of the ECtHR judgment and its less-than-clear allusion to Russia’s plans to acquire and retain control over territories controlled by Ukraine (which might have been influenced by parallel IHL debates on the applicability of the law of belligerent occupation during the invasion phase) underscore the continued relevance of Hampson’s criticism of the ECtHR case law on jurisdiction as “incoherent and inconsistent.”

Application of IHRL by Human Rights Bodies

In her second post, Hampson struck a cautiously optimistic tone regarding the ability of IHRL bodies—increasingly authorized to apply IHRL to extra-territorial military operations—to appropriately and responsibly invoke the co-application of this body of law in armed conflict situations where States seek to rely on IHL. While ECtHR case law generally supports her positive conclusions (see e.g., Isayeva v. Russia, emphasizing positive obligations to take precautions and investigate violations and Hassan v. UK on the need to creatively read State powers under IHL into the Convention), the recent practice of some UN human rights bodies raises anew serious concerns in this regard.

One case in point is the recent 2025 Commission on Inquiry report on the 2023-2025 Israel-Hamas war, which claimed “on reasonable grounds” that Israel’s operations in Gaza amount to the crime of genocide. While a review of the report in its entirety far exceeds the scope of this post, I focus instead just on one case discussed in the report, which demonstrates the Commission’s lack of care in applying international law to battlefield situations. This is the case of the attack on a fertility clinic.

The relevant part of the report reads,

151. In particular, the Commission investigated the attack against Al-Basma IVF clinic, Gaza’s largest fertility clinic. The clinic was shelled in December 2023, reportedly destroying around 4,000 embryos and 1,000 sperm samples and unfertilised eggs. According to reports, al-Basma IVF Centre served 2,000 to 3,000 patients each month, carrying out approximately 70 to 100 IVF procedures a month. The siege on Gaza and the resulting lack of supplies of liquid nitrogen, which is used to keep storage tanks cold, presented considerable challenges to the operation of the clinic and the preservation of reproductive material during the first months of the war. The stored reproductive material was lost in its entirety when the genetic bank was attacked in early December 2023. During the attack, the embryology laboratory was directly hit, and all the reproductive material stored in the laboratory was destroyed.

152. The Commission has determined, through visual analysis of photographs from the scene, that the extensive damage to the building’s exterior and interior was caused by a large calibre projectile, most probably a shell fired from an Israeli security forces tank. Satellite imagery indicates that the area around the clinic was extensively damaged due to the hostilities. The Centre was a standalone building, clearly marked with the name of the clinic. In a statement given to American ABC News, a spokesperson for the Israeli security forces said that they were not aware of the specific strike. The Israeli security forces also stated that they take extensive measures to mitigate civilian harm and in handling objects that require special protection and that they did not deliberately target civilian infrastructure, including IVF clinics. The Commission did not find any credible information indicating that the building was used for military purposes.

The Commission found that the Israeli authorities knew that the medical centre was a fertility clinic and that they intended to destroy it. Therefore, the Commission concluded that the destruction of the AlBasma IVF clinic was a measure intended to prevent births among Palestinians in Gaza.

153. The Commission emphasises that the Al-Basma IVF clinic was the main fertility centre in Gaza. The Israeli security forces launched a tank shell that directly hit the clinic and caused the explosion of five liquid nitrogen tanks, consequently destroying all the reproductive material that was stored therein for future conception of Palestinians. Furthermore, the Commission highlights that the IVF clinic suffered the most damage, compared to the buildings adjacent to it, indicating that it was the principal target. Considering (i) the Israeli security forces had launched a shell that directly hit the standalone clinic within a compound; (ii) the precision of the strike that led to the explosion of the nitrogen tanks; (iii) the absence of any credible threat from within the clinic; and (iv) the extent of damage to the clinic in comparison with the surrounding buildings, it is reasonable to conclude that the Israeli security forces knew of the function of the clinic and intended to target it and destroy the reproductive material within. Importantly, the Commission also heard from a witness who testified that munitions experts consulted were able to conclude that the clinic had been “under significant direct attack”.

154. While actual prevention of births is not necessary to establish the commission of this underlying genocidal act, the Commission nevertheless highlights the testimony of the expert physician on reproductive medicine to the Commission. According to the expert physician, the attack on the IVF clinic will “have repercussions for generations to come. Children who were meant to be born from these 5,000 reproductive specimens will never exist. Families will be forever changed and bloodlines may end because of a loss of these reproductive tissues.” The Commission has concluded in a previous report that the destruction of the AlBasma IVF clinic was a measure intended to prevent births among Palestinians in Gaza.

155. As such, the Commission concludes that the actus reus and mens rea of ‘imposing measures intended to prevent births within the group’ under article II(c) of the Genocide Convention are established.

The Committee’s approach appears to be that the very fact that harm occurred to a clearly marked sensitive medical facility is not only a prima facie indication of a violation of precautionary obligations under IHL, but also reasonably grounded proof of intent to commit genocide. This conclusion is reached notwithstanding Israel’s denial that it directed any operation against the fertility clinic or even had knowledge about its existence. It is also made despite the statement by the clinic’s director to Reuters that he did not know if the attack specifically targeted the clinic, and despite the lack of clear forensic evidence that the clinic was directly attacked by an Israeli projectile (rather than, for example, being hit by misfire from Hamas or another Palestinian armed faction). The Committee concluded that the attack involved a large caliber projectile “most probably” of an Israeli tank, although it did not have access to the scene, but relied instead on “a witness who testified that munitions experts consulted were able to conclude that the clinic had been ‘under significant direct attack.’”

A review of the pictures attached to the Reuters report of the incident (which was curiously published four months after it occurred) also puts in serious doubt the circumstantial evidence the Committee relied upon. Specifically, the picture of the two-story clinic and the adjacent seven-story building puts in doubt the assertion that the clinic was a standalone building, and that the extent of damage to the clinic was greater than the damage inflicted on surrounding buildings. Rather, the picture suggests that the harm to the clinic (the small white building on the left) was relatively limited and incidental to the more significant harm inflicted on the tall building (on the right), whose third floor seems to have been the target of a direct attack. The pictures also put into doubt the claim that the modest “Medical Center” marking on the front of the clinic must have made its location and precise nature as a fertility clinic known to the Israelis, who may have been operating at a distance from the site.

The breathtaking leap from meager information about an attack, potentially raising doubts about compliance with IHL precautionary obligations (which may merit further investigation so as to establish the actual circumstances of the incident and Israel’s involvement therein) to a conclusion of genocidal intent appears very far from resembling an appropriate and responsible application of international law to an armed conflict situation by a human rights body.

The combined effect of the Commission’s sloppy fact-finding and legal analysis, and the long-standing concerns about its perceived political bias, evoke Pictet’s aforementioned warning. Pictet was concerned about the risk of replacing the intervention of non-political bodies such as the ICRC with proven expertise in the application of IHL to battlefield situation, with the intervention of more political and less specialized bodies that apply to the same situation a less suitable body of norms, that is, IHRL. To be sure, comparable concerns have been raised with regard to some other UN IHRL bodies involved in law-application in the Israel-Hamas war as well (but not to all of them, of course).

While Hampson was correct, in principle, that IHRL should be applied to battlefield situations if such application is done with care, the risk we are now facing is that unprofessional and politicized exercises of co-application could generate a serious backlash against the very notion of co-application, and undermine the potentially important role played by international law in the most difficult and sensitive contexts for its application.

Concluding Remarks

Françoise Hampson was right (unsurprisingly to anyone who knew her) in advocating as a doctrinal matter for the co-application of IHL and IHRL to battlefield situations. The recent Ukraine and the Netherlands v. Russia judgment seems to vindicate her position that such co-application is feasible and desirable.

At the same time, she was also right to insist that co-application puts a professional responsibility on the shoulders of human rights bodies that engage in it to apply the law appropriately. Alas, IHRL bodies often lack the proper doctrinal expertise in the application of international law to battlefield situations, and tend to view legal problems arising in armed conflict from the perspective of the harm suffered by victims (which is often the point of IHRL analysis) and not from that of conduct and standard of care applied by the belligerent parties (which is typical of IHL analysis).

The methodology employed by some human rights bodies, and their inability to obtain direct access to relevant evidence essential to assess the legality of conduct on the battlefield, further impedes their capacity to reach sound legal conclusions. The growing prominence of IHRL bodies, due to the proliferation of law-applying bodies exercising their jurisdiction over battlefield situations and the political echo-chamber that supports their operation, regardless of the quality of their work, is bound to render the tension between the different approaches to co-application (normative dominance of IHL v. normative dominance of IHRL) increasingly risky for effectively regulating armed conflicts, and for securing, as Pictet feared, effective protection of victims.

The author thanks Dr. Eran Shamir Borer and Prof. Amichai Cohen for their useful comments to an earlier draft.

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Yuval Shany is the Hersch Lauterpacht Chair in Public International Law at the Hebrew University of Jerusalem, and a Senior Fellow at the Israel Democracy Institute.

The views expressed are those of the author, and do not necessarily reflect the official position of the United States Military Academy, Department of the Army, or Department of Defense. 

Articles of War is a forum for professionals to share opinions and cultivate ideas. Articles of War does not screen articles to fit a particular editorial agenda, nor endorse or advocate material that is published. Authorship does not indicate affiliation with Articles of War, the Lieber Institute, or the United States Military Academy West Point.

Photo credit: Jaber Jehad Badwan