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.