It’s a good day for human rights law (Part 2)

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By Tobias Thienel

Following up on my previous post on today’s trio of important cases from Strasbourg, I will now offer some further thoughts – still far from exhaustive – on the three judgments. Of course, my pointer to EJIL:Talk (where Marko Milanovic’s thoughts are expected) remains.

 

As for Al-Skeini, I think it can be predicted with some confidence that this case will stand as one of the most important cases on the extra-territorial application of the European Convention on Human Rights. Whether it can eclipse Bankovic – which it cites a great deal – remains to be seen and is a little doubtful. However, Al-Skeini is one of the few cases that give some impression of what ‘effective control’ means. Certainly, the judgment does not actually do much to actually define the concept, but its outcome is telling. If the somewhat precarious grasp that the British Army had on events in Basra at the relevant time is sufficient (if taken with the role of the UK as an occupying power), then the test is clearly less demanding than has occasionally been thought. True, the fleeting presence of the odd military patrol or aircraft may not be enough (cf. Issa and Others v Turkey; Bankovic and Others v Belgium and Others), but the facts in Al-Skeini – regarding the general state of affairs and the specific situations in which the shootings occurred – were not all that much stronger. It may be, certainly, that the fact of military occupation in the sense of international humanitarian law weighed heavily with the Court (as it has with Judge Bonello), but ‘effective control’ remains, even on the approach of the Court, above all a factual concept.

Also, it is interesting that while the somewhat precarious security situation in Basra was not taken as a lack of ‘effective control’, the Court referred to it on several occasions in its assessment of whether there had been any (procedural) violation of Article 2. The Court found that there had been, but in so holding showed itself conscious of the difficulties that the British faced in Basra. This did not in and of itself excuse the UK from performing the requisite investigations into the deaths that had occurred, but it did have an influence on quite how much would be asked of such investigations (paras 164-165).

 

Now, it is true that such flexibility in the (procedural) application of Article 2 had already been laid down in a number of purely domestic cases, involving in particular the conflicts in Chechnya and Eastern Turkey (see para 164 of Al-Skeini). Nonetheless, this treatment of the difficult security situation in Al-Skeini suggests that ‘effective control’ is not, after all, a unitary concept. Bankovic had said, of course, that the obligations under the Convention could not be ‘divided and tailored’ in accordance with the facts of each individual case, that is to say with the extent of the contracting state’s effective control. It appeared, therefore, that there was one standard of effective control, the satisfaction of which would trigger all the obligations under the Convention. If that standard was not met, however, the Convention would not apply in part, but rather not at all. This all-or-nothing approach would imply that the standard would have to be set so high that a contracting state would be able, once the standard was met, to actually discharge all its obligations.

 

This is a difficult position to take at the best of times. It is not easy to see, in particular, how a state could ever be incapable of discharging any of its negative obligations. Also, positive obligations are by their very nature and structure adaptable to the facts of each individual case, in that they never do more than oblige a contracting state to do whatever it can to discharge the obligation (see my earlier thoughts on this here, regarding the ‘panoply’ test devised by Laws LJ).

 

It is good to see, then, the Al-Skeini does not appear to have applied the all-or-nothing approach. Rather, the judgment specifically records that the ‘effective control over a person’ model of jurisdiction – which the judgment expresses with great clarity – does not lead to an application of all the Convention rights. Rather, it triggers the application of all the rights that are relevant to the specific situation of control (para 137). For instance, when Abdullah Öcalan was captured and put under the immediate control of Turkish agents in a plane in Kenya, he may not have had a right to marry (Article 12), but he certainly did enjoy a right of liberty (Article 5) and of freedom from torture (Article 3).

 

Moreover, the judgment makes clear that the exact force of the positive obligations under the ECHR can, as always, vary with the capabilities of the contracting state in the specific situation. That is entirely convincing, and may go some (but not all the) way towards explaining the not altogether strict test of ‘effective control’.

 

Finally on Al-Skeini, I should again advertise the concurring opinion of Judge Bonello. It is not only compelling, but it also has the much rarer distinction of being an amazing, stirring read.

 

As for Al-Jedda, I have already – in my previous post – noted that the Court has ‘read down’ the relevant Security Council resolutions, applying a principle of construction whereby the resolutions ought to be read as complying with human rights law. Such a principle has been advocated before (see Sir Elihu Lauterpacht here, at p 440-441, and Marko Milanovic here, at p 98), and is a wholly convincing treatment of the references to human rights in the Charter (among other considerations).

 

But the Court faced another difficulty apart from the supposed authorising effect of Security Council resolutions. This was the question whether the detention of Mr Al-Jedda was actually attributable to the United Kingdom, or whether it was really attributable to the UN (and only to the UN) instead. On this point the UK government had a pretty solid argument based on Behrami and Behrami v France and Saramati v France, Germany and Norway. That case had held that certain actions in Kosovo were indeed attributable to the UN, on the basis that it had had ‘ultimate authority and control’ over the relevant mission. On that test, it was certainly more than arguable that a similar conclusion should be available in Al-Jedda – even though that would absurdly have meant that an operation begun contrary to the law of the UN Charter would, in the legal sense, now have been performed by the UN.

 

The majority of the House of Lords managed to avoid this conclusion by ‘distinguishing’ Behrami and Saramati. However, the better view would appear to be that this ‘distinguishing’ actually involved a wholesale rejection of the test from Behrami and Saramati (see here, with the comments). That’s just as well, because Behrami and Saramati is clearly wrong: see Milanovic and Papic, ‘As Bad As It Gets: The European Court of Human Rights Behrami and Saramati Decision and General International Law’, ICLQ 58 (2009), pp 267 et seq; Schütze, Die Zurechenbarkeit von Völkerrechtsverstößen im Rahmen mandatierter Friedensmissionen der Vereinten Nationen (2011).

 

The Court in Al-Jedda was therefore faced with a choice of whether to overrule Behrami and Saramati, give it the forced ‘distinguishing’ that the majority of the House of Lords went for, or dismiss the application for want of attributability to the UK. In the event, it seems to me that the Court has done precisely none of those things. It has held that the conduct in question was attributable to the UK – which is surely correct. But Behrami and Saramati almost passes under the radar in that analysis. It is cited for a few general propositions, but the Court does not begin by citing the problematic formula of ‘ultimate authority and control’. Rather, it gets to work on the relevant resolutions straight away. Only then, in the conclusion on the attribution issue, does it make some reference to the Behrami test. But even then the Court stops some considerable way short of applying that test. Rather, the Grand Chamber says this:

It would appear from the opinion of Lord Bingham
in the first set of proceedings brought by the applicant that it was
common ground between the parties before the House of Lords that the
test to be applied in order to establish attribution was that set out
by the International Law Commission, in Article 5 of its draft Articles on the Responsibility of International Organisations and in its commentary thereon, namely that the conduct of an organ of a State placed at the disposal of an international organisation should be attributable under international law to that organisation if the organisation exercises effective control over that conduct (see paragraphs 18 and 56 above). For the reasons set out above, the Court considers that the United Nations Security Council had neither effective control nor ultimate authority and control over the acts and omissions of troops within the Multi-National Force and that the applicant’s detention was not, therefore, attributable to the United Nations.

Curiously, therefore, the Court in Al-Jedda leaves open whether it should apply the Behrami test or the test devised by the ILC and applied by the majority of the House of Lords. The consequence would appear to be that while Behrami and Saramati is not actually disapproved, its authority should now be greatly diminished. Later cases are likely to show what the final fate of Behrami and Saramati will be.

 

I don’t wish to burden this post with more thoughts on Bayatyan v Armenia – so I don’t.

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5 thoughts on “It’s a good day for human rights law (Part 2)

  1. Mel,

    It’s interesting you should mention this issue of ‘effective control’ in peacekeeping missions. I’ve only recently had a discussion about this with a professor here at Kiel. We both felt that the expression of ‘effective control’ was a bit unfortunate (though that cannot be helped) because it is capable of bearing either of two distinct meanings:

    – In the context you mention, and in cases like Behrami and Al-Jedda, ‘effective control’ determines attribution to a state (or to the UN), much like it did in the Nicaragua case. The ‘effective control’ in question is therefore that over the troops on the ground.

    – In Al-Skeini etc., ‘effective control’ determines the application of human rights treaties, as a matter of a primary rule of international law. This species of ‘effective control’ is that of control over an area or a specific person. The idea behind this, I would suggest, is that human rights fundamentally exist to provide protection against the powers of the state, from which it would follow that they don’t apply if a state does not exercise any powers because it doesn’t have effective control (but note that this would lead to a relatively low standard of effective control).

    – Against the background of these two distinct concepts of ‘effective control’, the Loizidou case is a bit of a nightmare. The ultimate question there was whether Turkey exercised ‘effective control’ over the area (in the latter, human rights sense). However, the entity that in fact did exercise control in Northern Cyprus was the Turkish Republic of Northern Cyprus (TRNC). Therefore, the ‘effective control’ of the TRNC had to be attributed to Turkey, on the basis of its ‘effective control’ in the state responsibility sense. Not what you’d call tidy.

    Therefore, we had the ECtHR apply two distinct notions of ‘effective control’ in two cases decided on the same day (Al-Jedda and Al-Skeini). Indeed, Al-Jedda itself raised both issues, because there was the issue of attribution to the UN (a bit thorny) and that of extraterritorial application (fairly easy).

    But that is very much by the by.

    My real answer to your comment is simply: I agree. Whichever concept of effective control we are dealing with, I think we are really faced with a question of fact more than with one of law. This is pretty obvious if we are discussing effective control in the HR sense (which we are not). But I seem to remember the ILC was also fairly clear in saying that the facts on the ground were what mattered to the attribution issue. Indeed, if you believe in a simple read-across from the law of state responsibility to the responsibility of international organizations, the Nicaragua case rather proves the point, doesn’t it?

  2. Very interesting discussion. I have written on state responsibility for criminal misconduct by peacekeeping personnel, in which I address issues of ‘effective control’. I think there needs to be more analysis of the reality of these situations. Judgements do look at the mandate, but they still tend to be more about the law & not the praxis. There needs to be a discussion from courts deciding on this issue on both de jure and de facto control. Sending states do retain control over their personnel; they are expressly allocated conduct & disciplinary control.

    In addition, even though de jure control & command may be with a UN commander, de facto control & command may stay with the national commander. The reason for this is that often troops will wait for a command from their national commander, despite being given an order from the UN commander. This, I believe, is vital to consider in these kinds of judgments. I understand that a court needs to analyse issues from a perspective that can be applied to all situations, and thus can be quite generic, but they need to look beyond the piece of paper (the mandate), & look at the reality on the ground as to how the mandate is applied. I believe that both sending states & the UN have responsibility for actions of peacekeeping forces carried out as part of their mandate; & that criminal conduct ultra vires the mandate is the responsibility of sending states.

  3. Your Dutch is excellent, I think. You understood the case perfectly, or at least as well as I have myself. The Hague Appeals Court did indeed avoid having to say something about the degree of control exercised by the UN itself at the relevant time and for the relevant acts, by saying that ‘effective control’ can be shared, and thus the Appeals Court only needed to look at the control exercised by the State of the Netherlands, i.e. the Dutch Government. I find it a bit strange that ‘effective control’ can be exercised by two authorities at the same time. I mean, how effective can such control be? I also agree with you that the Appeals Court seems to have ignored some European case law simply because it was not consistent with its own view, for which, and there I agree, there was already plenty of support. I’ll tell you when the English translation of the Dutch case becomes available! All the best, Otto

  4. Hi Otto,

    I’ve now read the excerpt from the Dutch case that you have put on the blog. As you know, I don’t actually speak Dutch, so I could only read it on the limited basis that Dutch is fairly closely related to German (especially a Northern dialect). Of course, I have not understood everything.

    My understanding of the Dutch case – so far as I do understand it – is that the Gerechtshof held that (a) Dutchbat had been integrated into the command structure of the UN, but (b) the Netherlands still had ‘effective control’ over it, as was demonstrated by certain orders given from The Hague and certain actions by two senior generals.

    Behrami and Saramati appears to have been distinsguished on the basis that the actual UN mission was over after Srebrenica had fallen to the Bosnian Serbs. But that’s one of the passages that I haven’t fully understood. Is that really what the Gerechtshof has said? If so, do you think this is convincing? Or is it rather a strained attempt to avoid the precedential weight of Behrami, which clearly is wrong?

    On that aspect, incidentally, I found it interesting that the court cited a few academics and the ILC for the proposition that ‘effective control’ was decisive. It pointedly did not cite Behrami and Saramati on this point, which had taken a different position in principle.

    As you say, it is also interesting that the court held expressly that ‘it is possible that more than one party has effective control’ (para 5.9). This would seem to imply that ‘effective control’ does not necessarily mean ‘exclusive control’, nor indeed ‘more control than anyone else is exercising’.

    I take it that the court did not decide whether the UN also had ‘effective control’? (para 5.9)

    But to your question: Marko Milanovic points out at EJIL:Talk that the relevant statement by the Grand Chamber in this respect was in para 80 of the Judgment:

    “The Court does not consider that, as a result of the authorisation contained in Resolution 1511, the acts of soldiers within the Multi-National Force became attributable to the United Nations or – more importantly, for the purposes of this case – ceased to be attributable to the troop-contributing nations.” (emphasis added)

    As Marko says, the last part of the sentence suggests that the European Court has, in principle, accepted the possibility of dual attribution.

    It seems to me, incidentally, that the approach of the ECtHR was somewhat different from that of the Gerechtshof. The European Court held that the UN had not exercised effective control, the consequence being that the UK, whose officials had been performing the relevant actions, did have effective control. The Gerechtshof, on the other hand, started from the other side (as it were), examining whether the Netherlands had had ‘effective control’.

    The latter approach seems to be preferable at least for a domestic court, in that it allowed the Gerechtshof to discreetly avoid any holding on the responsibility of the UN. I’m not suggesting that the immunity of the UN would have prevented any incidental comment about it, but it may simply be wiser not to go there.

    I eagerly await your post on the English translation of the Srebrenica case. The judgment is most interesting and deserves to be understood better than I have until now.

  5. Hi Tobias! Thanks for sharing your thoughts on this important case. If possible, could you compare this case with the Dutch one, if an English translation of the latter will become available (I’ll keep an eye on that myself)? Did the European Court say something about the possibility of both an International Organization and a State exercising ‘effective control’ over the same events at the same time?

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