As bad as it gets: The European Court of Human Rights's

International and Comparative Law Quarterly

Volumn 58, Issue 2, 2009, Pages 267-296

  Milanović, Marko ^a   Papić, Tatjana ^b  

^a Belgrade Centre for Human Rights   (Netherlands)

^b Union University School of Law   (Netherlands)

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EID: 67749120342     PISSN: 00205893     EISSN: 14716895     Source Type: Journal    
DOI: 10.1017/S002058930900102X     Document Type: Article

References (149)

1. Behrami and Behrami v France, Saramati v France, Germany and Norway App Nos 71412/01 & 78166/01, Grand Chamber, Decision, 2 May 2007. For the sake of brevity, the decision will be referred to throughout this article simply as Behrami. However, when the factual and legal differences between the two joined cases so require, we will refer to Saramati separately from Behrami, as will be apparent from the context of the discussion.
2. R (Al-Jedda) v Secretary of State for Defence [2007] UKHL 58, [2008] 1 AC 332, [2008] 2 WLR 31, 12 December 2007, hereinafter Al-Jedda.
3. As is well known, starting from 1998, the Kosovo crisis erupted into an armed conflict between Yugoslav and Serbian security forces, on the one side, and ethnic Albanian armed rebels fighting for the independence of Kosovo, on the other. On 24 March 1999, after the failure of the Ramobuillet peace negotiations, NATO commenced air strikes against the Federal Republic of Yugoslavia which ended on 10 June 1999. During the conflict, serious violations of human rights and humanitarian law were committed by both sides, with the Yugoslav and Serbian security forces in particular conducting a systematic campaign to expel the ethnic Albanian population from Kosovo. The Security Council dealt with the crisis in Kosovo since 1998, acting under Chapter VII, in Resolutions 1160 (1998) of 31 March 1998, 1199 (1998) of 23 September 1998 and 1203 (1998) of 24 October 1998.
4. Text available at http://edition.cnn.com/WORLD/europe/9906/09/ kosovo.agreement.text/.
5. Behrami, paras 64 & 65; para 1.
6. Behrami, para 67: 'The respondent Governments essentially contended that the applications were incompatible ratione loci and personae with the provisions of the Convention because the applicants did not fall within their jurisdiction within the meaning of Article 1 of the Convention ... The third party States submitted in essence that the respondent States had no jurisdiction loci or personae.'
7. Loizidou v Turkey (1997) 23 EHRR
8. App No 15318/89, Judgment (preliminary objections), 23 February 1995
9. Judgment (merits), 28 November 1996.
10. Banković v Belgium, App No 52207/99, Grand Chamber, Decision on admissibility, 12 December 2001, hereinafter Banković.
11. Ilascu v Moldova and Russia, App No 48787/99, Grand Chamber, Judgment, 8 July 2004.
12. Behrami, paras 71-72.
13. Behrami, para 121.
14. Behrami, paras 123-127.
15. Behrami, para 129.
16. Behrami, para 132.
17. Behrami, para 133.
18. Behrami, paras 134-140.
19. Behrami, para 141.
20. Behrami, paras 142-143.
21. Behrami, paras 144-152.
22. Behrami, paras 82-116.
23. See, eg M O'Boyle, 'The European Convention on Human Rights and Extraterritorial Jurisdiction: A Comment on "Life After Banković"' in F Coomans & M Kamminga (eds), Extraterritorial Application of Human Rights Treaties (Intersentia, 2004) 125.
24. See, eg Saddam Hussein v 21 Countries, App No 23276/04, Decision on admissibility, March 2006.
25. See M Milanović, 'From Compromise to Principle: Clarifying the Concept of State Jurisdiction in Human Rights Treaties' 8 Human Rights Law Review (2008) 411.
26. See also R Wilde, 'Triggering State Obligations Extraterritorially: The Spatial Test in Certain Human Rights Treaties' 40 Israel Law Review (2007) 503, especially at 508, 513-514
27. O De Schutter, 'Globalization and Jurisdiction: Lessons from the European Convention on Human Rights' 6 Baltic Yearbook of International Law (2006) 183.
28. See R Lawson, 'Life after Banković: On the Extraterritorial Application of the European Convention on Human Rights' in Coomans & Kamminga (n 21) 83, 86.
29. See A Sari, 'Jurisdiction and International Responsibility in Peace Support Operations: The Behrami and Saramati Cases' 8 Human Rights Law Review (2008) 151, 158.
30. ibid 159.
31. Which reads: 'In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.'
32. Behrami, para 124.
33. Such detention by KFOR has been criticized, inter alia, by the Human Rights Committee in its consideration of the UNMIK report on Kosovo - see Concluding Observations of the Human Rights Committee - Kosovo (Serbia), UN Doc CCPR/C/UNK/CO/1, 14 August 2006, para 17.
34. Behrami, paras 125-126.
35. Behrami, paras 132-141.
36. Behrami, paras 142-143.
37. Behrami, paras 73-81.
38. It could be argued that the issue of mandate, though irrelevant for attribution, is relevant for ascertaining whether the applicants in Behrami fell within the jurisdiction of France, within the meaning of Article 1 of the ECHR - see Sari (n 25) 161.
39. In our view this is not the case, since this notion of 'jurisdiction' has nothing to do with the legal competences of a state or any other entity, but with the actual, physical power that a State exercises over territory or people - see Milanovic (n 23).
40. The only other possible, and quite controversial effect of Resolution 1244, would be the displacement of States' obligations under the ECHR pursuant to Article 103 of the Charter. In any event the effects of the UN mandate belong entirely with the merits. For a recent case in which the Court found a violation of Article 2 ECHR because of a State's failure to fulfil its positive obligations in relation to de-mining, see Albekov v Russia, App No 68216/01, Judgment of 9 October 2008.
41. See also Behrami, paras 21-25.
42. The theoretically most developed such account is found in see D Sarooshi, The United Nations and the Development of Collective Security: The Delegation by the UN Security Council of its Chapter VII Powers (OUP, 1999) 10-16.
43. See, eg E de Wet, 'The Relationship between the Security Council and Regional Organizations during Enforcement Action under Chapter VII of the United Nations Charter' 71 Nordic JIL (2002) 1.
44. Behrami, para 43.
45. Behrami, paras 129-130.
46. See also B Fassbender, 'Quis judicabit? The Security Council, Its Powers and Its Legal Control' 11 EJIL (2000) 219.
47. See, eg H Fruedenschuß, 'Between Unilateralism and Collective Security: Authorizations of the Use of Force by the UN Security Council' 5 EJIL (1994) 492
48. T Franck & F Patel, 'UN Police Action in Lieu of War: "The Old Order Changeth"' 85 AJIL (1991) 63.
49. Prosecutor v Tadić IT-95-1, Decision on the defence motion for interlocutory appeal on jurisdiction, 2 October 1995.
50. ibid para 38.
51. Behrami, para 132.
52. Sarooshi (n 36) 163-166.
53. See S Chesterman, Just War or Just Peace: Humanitarian Intervention and International Law (OUP, 2002) 165 ff
54. R Kolb, Ius Contra Bellum - Le Droit international relatif au maintien de la paix (Bruylant, 2003)
55. V Gowlland-Debbas 'The Limits of Unilateral Enforcement of Community Objectives in the Framework of UN Peace Maintenance' 11 EJIL (2000) 369
56. The Meroni v High Authority case also does not in any way deal with matters of attribution. Blokker notes the existence of the problem, but expressly refrains from adopting a position, though he seems to lean against attribution to the UN - see N Blokker, 'Is the Authorization Authorized? Powers and Practice of the UN Security Council to Authorize the Use of Force by "Coalitions of the Able and Willing"' 11 EJIL (2000) 541, 545-546.
57. See J Friedrich, 'UNMIK in Kosovo: Struggling with Uncertainty', 9 Max Planck Yearbook of United Nations Law (2005) 225, 272: '[T]he sending states remain internationally responsible for the actions of their troops'; and at 275: 'As KFOR troops are effectively exercising control and at least some governmental functions, especially with regard to security, the sending states are responsible under the ECHR'
58. E de Wet, Chapter VII Powers of the United Nations Security Council (Hart Publishing, 2004) 378-382, esp 380: 'States may remain responsible under international human rights law for the consequences of the exercise of the powers by the international organizations' and at 381: 'Any other conclusion would create a dangerous loophole by which member states, by exercising powers in the context of an international organization rather than unilaterally, could evade international responsibility for its obligations to respect human rights.'
59. Behrami, paras 133 & 134.
60. Behrami, para 136.
61. Behrami, para 77: '[The applicants argued that] since there was no operational command link between the UNSC and NATO and since the TCNs retained such significant power, there was no unified chain of command from the UNSC so that neither the acts nor the omissions of KFOR troops could be attributed to NATO or to the UN.'
62. Behrami, para 141.
63. For the provisionally adopted text of the Draft Articles on Responsibility of International Organizations when this article was submitted see ILC Report on its 59th Session (7 May to 5 June and 9 July to 10 August 2007), General Assembly Official Records, Sixty-second Session, Supplement No. 10, UN Doc. A/62/10, ch VIII 185-199.
64. As is well known, draft articles adopted by the ILC are not legally binding, but they are frequently considered to re.ect international customary law and are hence relied upon by courts. As an example, some provisions of the ILC Articles on State Responsibility were explicitly considered to re.ect international customary law by the ICJ. See, eg Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), judgment of 27 February 2007 (available at http://www.icj-cij.org/docket/files/91/13685.pdf), paras 385, 401, 407.
65. The ILC's Draft Articles on Responsibility of International Organizations are of course still a work in progress. However, whether particular rules stipulated in them reflect customary law or not can be gauged, inter alia, by the comments that States send to the ILC, as well as by the discussions of State representatives in the Sixth Committee of the General Assembly. So far, no State has objected in any way to draft Article 5.
66. ILC Report on its 56th Session (3 May to 4 June and 5 July to 6 August 2004), General Assembly Of.cial Records, Fifty-ninth Session, Supplement No 10, UN Doc A/59/10, (hereinafter: ILC Report 2004), ch V at 99 (emphasis added).
67. ILC Report 2004, Commentary Art 5, 110, para 1.
68. ibid.
69. ibid 113, para 6 (emphasis added).
70. ibid 112.
71. ibid 114, para 8.
72. ibid.
73. It is also important to distinguish the primary rule of attribution articulated in draft Art 5 from the Rules on the Responsibility of States for the Acts of an Organization set out in Draft Articles 25-29; see ILC Report on its 58th Session (1 May to 9 June and 3 July to 11 August 2006), Official Records of the General Assembly, Sixty-.rst Session, Supplement No 10, UN Doc A/61/10, ch VII 277-291.
74. As a general matter, States do not incur responsibility for acts of an international organization possessing separate legal personality, of which they are members, by the virtue of membership alone. However, a State may incur responsibility, if it (1) aids, assists, directs, controls or coerces an international organization to commit an internationally wrongful act (Art 25-27)
75. accepts responsibility for an internationally wrongful act of an international organization or has led injured party to rely on its responsibility (Art 29, with a note that State responsibility is subsidiary). Furthermore, a member State of an international organization incurs responsibility 'if it is to circumvent one of its international obligations by providing the organization with the competence in relation to that obligation' (Art 28). Crucially, these articles become applicable only if it is first determined that the conduct in question is indeed attributable to the organization, exceptionally allowing for the piercing of the veil of its international legal personality in specific circumstances. In Behrami, however, the issue was precisely whether the conduct was attributable to the UN or not in the first place, and that question is regulated by draft Article 5.
76. Behrami, paras 30-31, 138.
77. Behrami, para 138: 'The Court considers it essential to recall at this point that the necessary [...] donation of troops by willing [troop contributing nations (TCNs)] means that, in practice, those TCNs retain some authority over those troops (for reasons, inter alia, of safety, discipline and accountability) and certain obligations in their regard (material provision including uniforms and equipment). NATO's command of operational matters was not therefore intended to be exclusive, but the essential question was whether, despite such TCN involvement, it was "effective" (ILC Report cited at paragraph 32 above).'
78. Compare, for example, the views of Stein, who argues that the actions of NATO can be attributable to its member states, to those of Pellet, who asserts that they cannot - see T Stein, 'Kosovo and the International Community. The Attribution of Possible Internationally Wrongful Acts: Responsibility of NATO or of its Member States', in C Tomuschat (ed), Kosovo and the International Community: A Legal Assessment (Kluwer, 2002) 181 ff
79. A Pellet, 'L'imputabilité d'éventuels actes illicites - Responsabilité de l'OTAN ou des Etats membres', in Tomuschat ibid 193 ff.
80. Behrami, para 133.
81. Behrami, para 134: 'In the first place [...] Chapter VII allowed the UNSC to delegate to "Member States and relevant international organisations". Secondly, the relevant power was a delegable power. Thirdly, that delegation was neither presumed nor implicit, but rather prior and explicit in the Resolution itself. Fourthly, the Resolution put sufficiently defined limits on the delegation by fixing the mandate with adequate precision as it set out the objectives to be attained, the roles and responsibilities accorded as well as the means to be employed. The broad nature of certain provisions [...] could not be eliminated altogether given the constituent nature of such an instrument whose role was to fix broad objectives and goals and not to describe or interfere with the detail of operational implementation and choices. Fifthly, the leadership of the military presence was required by the Resolution to report to the UNSC so as to allow the UNSC to exercise its overall authority and control (consistently, the UNSC was to remain actively seized of the matter, Article 21 of the Resolution). The requirement that the SG present the KFOR report to the UNSC was an added safeguard since the SG is considered to represent the general interests of the UN.'
82. Behrami, para 141.
83. And even there the 'possibility remains open that, in exceptional circumstances, functions may be considered as given to an organ or agent even if this could not be said to be based on the rules of the organization.' See ILC Report 2004, Commentary Art 4, 107, para 9.
84. Then draft Article 7(2).
85. Sarooshi (n 36) 163-166, esp 166, fn 85.
86. The Court also used the term 'overall authority and control' synonymously with 'ultimate authority and control.' Behrami, para 134.
87. This might create the mistaken impression that the Court actually applied the 'overall control' test of attribution adopted by the ICTY in Prosecutor v Tadić, IT-94-1, Appeals Chamber, Judgment, 15 July 1999.
88. The 'overall control' language used by the Court comes directly from Professor Sarooshi's book, which was written before Tadić was handed down. See Sarooshi (n 36) 163-166.
89. See (n 66).
90. See N Blokker, 'Is the Authorization Authorized? Powers and Practice of the UN Security Council to Authorize the Use of Force by "Coalitions of the Able and Willing"' 11 EJIL (2000) 541, 564 and 565.
91. See Responsibility of international organizations - Comments and observations received from Governments and international organizations ILC, 57th Session (2 May-3 June and 4 July 5 August 2005), UN Doc A/CN.4/556, 46.
92. See (n 57) and (n 58) and accompanying text.
93. UNMIK Regulation 2000/47, ss 2.4. and 6.2.
94. Behrami, para 77.
95. Behrami, paras 31-33.
96. ILC Report 2004, 102, para 5 (emphasis added).
97. ibid 112-114.
98. ibid 113, fn 297.
99. ibid 114, citing UN Doc A/51/389, paras 17-18 (emphasis added).
100. The European Commission for Democracy through Law (Venice Commission: http://www.venice.coe.int/) is an advisory body of the Council of Europe which deals with constitutional issues. Its membership totals 53 States, and includes all members of the Council of Europe as well as Algeria, Chile, Israel, Kyrgystan, South Korea, and Morocco. The Commission consists of independent experts 'who have achieved eminence through their experience in democratic institutions or by their contribution to the enhancement of law and political science' who serve in their individual capacity (Art 2 (1) of its Statute). Most of the Commission's members are academics, while some served as members of the European Commission and Court of Human Rights, or highest national courts. While its opinions are of an advisory character, the high quality of the expertise and research behind them, as well as the reputation of the Commission's members, have made these documents a highly in.uential expression of jurists' opinion on the state of international and European law.
101. Behrami, para 14.
102. European Commission for Democracy through Law (Venice Commission), Opinion on Human Rights in Kosovo: Possible establishment of review mechanisms, 11 October 2004, No 280/2004, CDL-Ad (2004) 033, at 18, para 79 (citations omitted, emphasis added).
103. See the works of Friedrich and de Wet in (n 47) and accompanying text.
104. See also the article by Wolfrum cited by the Court in Behrami, at para 130-R Wolfrum, 'International Administration in Post-Con.ict Situations by the United Nations and Other International Actors,' 9 Max Planck Yearbook of United Nations Law (2005) 649, 690: 'As far as KFOR is concerned its national contingents are bound by the international human rights instruments to which its governments have adhered to, in particular the [ECHR] and to international humanitarian law. It is established that international human rights instruments apply also to the extraterritorial application of the jurisdiction of its States parties. Having been integrated in KFOR the national contingents remain under the authority of the sending state and thus are bound to the obligations their governments are committed to.'
105. Seyersted differentiated between forces over which the UN has operational command or control, and forces which it authorizes, but are under the command of a member State or States, and concluded that responsibility must remain with contributing States if they exercise operational command. See F Seyersted, 'United Nations Forces: Some Legal Problems' 37 BYBIL (1961) 351, 369-370 (discussing the Korean War); 389-390 (discussing UNEF); and 411 ff, esp. 428-435.
106. See A Paulus, 'Article 29', in B Simma (ed), The Charter of the United Nations - A Commentary (OUP, 2002) 542, MN 9: 'The delegation of tasks to subisidary organs is to be distinguished from authorization of other bodies or States. For instance, the [Security Council] may entrust the [Secretary General] with certain tasks [...], or authorize member States to act. In the latter case, the action is attributed to the member State, whereas acts of subsidiary organs are attributed to the parent body which exercises both authority and control over them'
107. J Frowein & N Kirsch, 'Article 42', in Simma, ibid 759, MN 29, who state that '[w]here member States are authorized to apply force, the armed forces remain fully under their control, with respect to both their deployment and their actual conduct. Their acts are, therefore, not attributable to the UN.' Moreover, even if the action is under full UN command and control 'the question may arise whether the use of force is to be attributed to the States providing the contingents or to the UN itself.'
108. See, eg CF Amerasinghe, Principles of the Institutional Law of International Organizations (2nd rev ed, CUP, 2005) 403: 'Imputability of the acts of forces of the UN becomes possible where national contingents become organs of the UN by being placed under the authority of the UN or under a commander appointed by and taking orders from it and in circumstances where the states providing them have ceded their organic jurisdiction over them. Where the contingents are organs of the national state and under the full organic jurisdiction of the national state, even if they were acting in execution of a UN decision, the UN cannot be held responsible for their acts, as was the case in Korea in 1950, for instance'
109. J Cerone, 'Minding the Gap: Outlining KFOR Accountability in Post-Conflict Kosovo' 12 EJIL (2001) 469, esp 486, who noted that despite the fact that KFOR 'assumes responsibility for directing the activities of the forces [...] the national governments of the contingents ultimately retain signi.cant control over soldiers, bolstering a finding of individual state accountability for the acts of the troops each state has contributed to KFOR.'
110. See (n 79).
111. ILC Report 2004 101, para 4.
112. Resolution 1546, para 10.
113. [2006] EWCA Civ 327, [2007] QB 621.
114. Intervenor's submissions on file with the authors.
115. Al-Jedda (per Lord Bingham) para 23.
116. See, eg D Kritsiotis, 'Arguments of Mass Confusion' 15 EJIL (2004) 233, 241-245.
117. Al-Jedda (per Lord Bingham) para 24.
118. Al-Jedda (per Lord Rodger) para 90.
119. Behrami, para 131.
120. See (n 4).
121. For example, in the address to the nation in which he announced the cessation of hostilities, Milošević said the following: Our army and our people have through their heroic defence of our country from the vastly superior forces of the aggressor managed to preserve the territorial unity, territorial integrity and sovereignty of our country, and have succeeded to place the problem which needs to be resolved in the southern Serbian province under UN auspices and also preserve our army and its combat potentials (emphasis added). Available at http://www.b92.net/info/vesti/index.php?yyyy=2008&mm=03&dd= 24&nav_category=11&nav_id=290676 (in Serbian, authors' translation).
122. See also the Letter dated 7 June 1999 from the Permanent Representative of Germany to the United Nations addressed to the President of the Security Council, UN Doc. S/1999/649. Annexed to this letter is the peace plan which ended the NATO bombing, which was negotiated between Milošević and international representatives. Item 3 of this plan refers to the deployment of an international force under UN auspices.
123. Al-Jedda (per Lord Rodger) paras 93-111. This conclusion seems to be supported by the fact that Lord Brown, who was the only judge seriously to attempt at distinguishing Behrami, seems to have changed his mind after the judgment was officially proclaimed, as he added a rather strange postscript to his opinion in which he expresses doubts as to the continuing validity of his earlier reasoning.
124. Al-Jedda (per Lord Bingham) paras 5 & 23.
125. Al-Jedda (per Lord Bingham) paras 26-35.
126. See, eg R Kolb, 'Does Article 103 of the Charter of the United Nations Apply only to Decisions or also to Authorizations Adopted by the Security Council,' 64 ZaöRV (2004) 21
127. Sarooshi (n 36) 150
128. Gowlland-Debbas (n 46)
129. Frowein & Kirsch, 'Article 39', in Simma (n 88) 729, MN 33.
130. Al-Jedda (per Lord Bingham) para 39.
131. See also Al-Jedda (per Baroness Hale) paras 126 & 129,
132. and Al-Jedda (per Lord Carswell) para 136.
133. For more on Al-Jedda, see the discussion by Tobias Thienel and commentors on the Opinio Juris weblog, at http://www.opiniojuris.org/posts/1200312204.shtml and http://www.opiniojuris.org/posts/1200490105.shtml.
134. Behrami, paras 26 and 147.
135. Behrami, paras 97, 102, 106, 113.
136. Behrami, para 145.
137. See also Loizidou (preliminary objections) para 75.
138. Available at http://www.echr.coe.int/
139. See, eg B Bowring, 'Russia's relations with the Council of Europe under increasing strain', EU-Russia Centre, 28 February 2007, available at http://www.eu-russiacentre.org/
140. See the statement by the representative of Denmark on the behalf of Nordic countries, UN Doc A/C.6/62/SR.18, at 17
141. statement by the representative of Greece, UN Doc A/C.6/62/SR.19, 3.
142. See Gajic v Germany, App No 31446/02, Decision, 28 August 2007
143. Kasumaj v Greece, App No 6974/05, Decision, 5 July 2007.
144. See also Beric v Bosnia and Herzegovina, App Nos 36357/04 (etc), Decision, 16 October 2007.
145. On 8 October 2008 the UN General Assembly adopted resolution A/RES/63/3 in which it requested the ICJ to render an advisory opinion on whether the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo was in accordance with international law. After conducting written and oral proceedings, the Court is expected to issue its advisory opinion in the next year or so. Case materials are available at http://www.icj-cij.org/.
146. See Art 48(1) of the ICCPR, which provides that it is 'open for signature by any State Member of the United Nations or member of any of its specialized agencies, by any State Party to the Statute of the International Court of Justice, and by any other State which has been invited by the General Assembly of the United Nations to become a party to the present Covenant' and Art. 59(1) of the ECHR, which stipulates that it 'shall be open to the signature of the members of the Council of Europe.'
147. See, eg Human Rights Committee, General Comment No 26, 2 November 1994.
148. Council Joint Action on EU Rule of Law Mission in Kosovo, No. 5928/08, 4 February 2008, available at http://www.eupt-kosovo.eu/new/legalbasis/ docs/st05928en08.pdf.
149. It should be noted, however, that the Serbian government has recently become more amenable to the presence of EULEX, and that it might give its consent to the mission's presence.