Category Archives: on Human Rights Law

CEDAW 52nd Session Country Reports: New Zealand and Samoa

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By Mel O’Brien

I thought I would put NZ and Samoa in the same blog post, as they are two Pacific island countries, and so it is a useful comparison. The two states are in completely different situations, however, in many ways, with regards to advancement and equality of women.

The issue of women in politics continues to be a pressing issue for the Committee, and they have pushed this topic with every state whose report(s) has(ve) been considered. There was no love lost with either NZ or Samoa, however. In the case of NZ, there was, we repeatedly heard, "no appetite" for special measures like quotas to increase the number of women in parliament. NZ does have a relatively high percentage of women in parliament, at 32%, however this is down from previous governments, and in general the trend towards women’s advancement is decreasing in NZ. As a consequence, the Committee pushed for NZ to consider implementing temporary special measures, although the NZ delegation did not take to this idea. Continue reading →

CEDAW 52nd Session Country Reports: Bulgaria and Jamaica

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By Mel O’Brien

The country reports of Bulgaria and Jamaica were addressed at the end of the first week of the 52nd session of CEDAW. Both states worked quite hard to answer all the questions of the Committee.

In the case of Bulgaria, there have been quite a lot of new laws promulgated recently, as well as the establishment of a Commission on Protection Against Discrimination. The news laws include one on anti-discrimination (including gender, race, etc). In 2005, a domestic violence law was passed, which has also been amended in 2009 and 2010. The Penal Code also offers domestic violence protection, including provisions for violation of protection orders, and others on general crimes such as assault and murder. In addition, there are new hate crime provisions in the Penal Code, and new legislation against trafficking in persons. The government is in the process of amending the Penal Code further (for 2012 or 2013), including the removal of provisions that outlaw ‘crimes against sexual morality’, and the ability of rapists to avoid punishent by marrying their victims.

One of the ongoing concerns of the Committee through all of the issues was the issue of Roma women. In 2012, the Bulgarian government launched a National Strategy for the Integration of the Roma, and this focuses on prevention of discrimination and hate crimes, including against Roma women. The Strategy has two timeframes of application, the first from 2012 to 2015, the next from 2016 to 2020.

CEDAW 52nd Session Country Reports: Guyana and Indonesia

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 By Mel O’Brien

The second and third days of the 52nd session of the CEDAW have addressed the country reports of Guyana and Indonesia. Issues addressed across both countries included migrant workers, domestic workers, education, women in politics, HIV/AIDS healthcare, healthcare for prostitutes, and trafficking in persons.

There was quite a stark contrast in the presentations and answers from the two states. Guyana had a small delegation of two ministers, the Minister for Education and the Minister for Human Services. Both women delivered succint, detailed responses to the questions posed y the Committee experts. They dealt with issues such as the differing services provided to women in the hinterland (which is the majority of the country geographically but only 5% of the population resides there) compared to those more comprehensive services provided to women on the coastline, particularly in the capital Georgetown. Guyana is a nascent democracy, and since its last CEDAW report, has enacted a significant number of new and pertinent pieces of legislation, including a Sexual Offences Act, a Domestic Violence Act, a Prevention of Crime Act and a Protection of Children Act. There is also government provided healthcare system which includes provision for sexual and reproductive health. In 2003 the Constitution was amended to enshrine rights of equality and non-discrimination, and women constitute 32% of the Guyana parliament. Child marriage was another issue discussed, which has been reduced since Guyana raised the age of consent for marriage from 13 to 16.

 In contrast, the Indonesian government delegation contained a large number of people from different ministries, and offered very general responses to answers, much to the disappointment of the Indonesian NGO representatives present. The Committee was particularly critical, emphasising the rights issues that were raised in the previous CEDAW report on Indonesia, and how none of these issues have been addressed. The Committee was also extremely blunt and even undiplomatic in calling the Indonesian government on the issues of female genital mutilation (FGM). In particular, those members of the Committee from Islamic states were quite adament about the fact that Islam does not condone FGM. FGM was reiterated as a violation of human rights norms, under CEDAW, the Convention on the Rights of the Child, and the Convention Against Torture, and Indonesia’s law stating that FGM must be conducted by a medical professional was highly criticised by the Committee. With regards to reparations for women who are victims of violence, particularly sexual violence, from armed conflict, such as the 1965 conflict and conflicts in Aceh and Timor Leste, the Indonesian government offered little resonse, simply stating that the issue is ‘complex’  and that the government has made ‘significant progress’, but did not elaborate on what such progress is. In general, the Indonesian delegation made many references to ‘action plans’ relating to a variety of areas such as development and gender mainstreaming, but failed to provide examples of what specific actions these plans contain and how they are being implemented.

30 Years of Working to Eliminate Discrimination Against Women- 52nd Session of CEDAW

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By Mel O’Brien

This year marks the 30th Anniversary of the Convention on the Elimination of Discrimination Against Women. Today the Committee on the Elimination of Discrimination Against Women held a 30th Anniversary Event during its 52nd Session at UN Headquarters. The brief event focused on women’s political participation and leadership, and the pursuit of equality in this area. Mr Jan Eliasson, Deputy Secretary-General of the UN, spoke about the importance of equality and non-discrimination and how his office is seeking to achieve that, through intergration of human rights principles. Michele Bachelet, the head of UN Women, gave an excellent speech about how women in positions of leadership inspire young women to seek further education and aspire to be leaders themselves some day. The event also heard from several women from different countries, who hold positions in their home countries in the legal profession, government or civil society organisations, and the challenges that they face in their home states with regards to achieving parliamentary parity and legislative changes to implement rights under CEDAW.

By 2030, the UN is aiming for 30% women in all governments/parliaments across the world. Currently only about 30 states have at least 30% women in their parliaments, which certainly makes the UN goal an ambitious one, but still an essential one. Having women in leadership roles ensures that a wider variety of issues are addressed by governments, including women’s concerns. 

I am attending the 52nd Session of the CEDAW as a delegate of the American Society of International Law, and will post regularly during the next three weeks. During this session, the CEDAW will address the state reports of Bulgaria, Guyana, Jamaica, Indonesia, Mexico, New Zealand, Bahamas, and Samoa.  

Circumcision and the German Courts

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gavelApologies for my prolonged absence from these digital shores.

 

Parts of Germany and Europe are currently all abuzz due to a judgment of the Regional Court (Landgericht) of Cologne, under which the circumcision of young boys incapable of giving consent constitutes an offence of causing actual bodily harm. The defendant, a Muslim doctor, was acquitted only because he had been in an unavoidable error of law. Adam Wagner at the UK Human Rights Blog has a useful summary and a good English translation of the judgment.

 

This post is intended not so much to give my opinion on the merits of the case. To be brief, I rather doubt that the Regional Court has given sufficient weight to the freedom of religion. The fact that the procedure alters the body of the boy forever is clearly a valid point in balancing the rights of freedom of religion and of the physical integrity of the boy, but I don’t think it’s decisive as such. Parents influence their children in many ways, many of which are ultimately irrevocable. Nonetheless we accept the right of the parents to take such decisions with effect for their children. Moreover, there is a technical legal point: Certainly under the German Basic Law, and in some respects also under the ECHR, freedom of religion receives greater protection than physical integrity. This should be considered in striking the balance, although it obviously does not provide a complete answer.

 

The main question for this post is one that Adam Wagner briefly alludes to at the UKHRB: The Regional Court is at the lowest level of German courts bar one. Its judgments therefore do not carry a great deal of authority. Other courts will not be deterred from taking a different view, as they might be if the judgment had been one of a superior or supreme court. The question therefore arises, with a view to the development of the law, whether the case from Cologne can now move up the hierarchy of courts.

 

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PEACEKEEPING IN THE ASIA-PACIFIC: GENDER EQUALITY, LAW AND COLLECTIVE SECURITY Symposium Summary

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There were certainly some scepticisms and challenges of
ideas, which highlighted the open nature of the group and a willingness to
confront and debate. Karen Engle, who presented the public lecture entitled ‘From
the UN Security Council to Charlize Theron: “Getting Cross” about Sexual
Violence in War’, raised a few eyebrows. She criticised the UN, in particular
the Security Council, for emphasising the ‘shame’ brought to victims of rape
and other sexual violence in armed conflict. However, when asked about the fact
that in many societies, women are ostracised for being raped, and how Engle
would approach the issue, Engle did not have an answer. Thus, she presented a
criticism, but no solution. A related theme in some other presentations was
that of the ‘feti$hisation’ of sexual violence victims in armed conflict; how
this issue is overshadowing other concerns of women who have experienced armed
conflict, and being a key factor in NGO funding. This approach is one of the
concerns I have with feminism at times, where it seems to an extent that they
are shooting themselves in the foot. Women’s rights activists, professionals,
and academics have fought for years for recognition of the scale of sexual
violence against women in armed conflict (and Felicity Hill of WILPF spoke of
the fight by rights groups for SC Res 1325 on women in peacekeeping and peace
processes). Yet when this recognition is achieved, it is criticised. We should
be embracing the fact that organisations such as the UN, including through the
Security Council, are bringing up sexual violence in armed conflict on a
regular basis, and acknowledging the negative outcomes of such violence,
including the ostracisation and shaming of many victims. Di Otto found an
effective balance for this problem: pointing out the dilemmas created through
both the positive outcomes but also the dangers of what feminist activism has
achieved in international peace and security, including Heathcote’s scrutiny of
women victims as a validation for use of force.[1]
There is also a need to remember that men are also victims of sexual violence
in armed conflict, and for this particular kind of violence to be addressed; a
point that was emphasised by Chloe Lewis (University of Oxford).[2]

Another feminist contradiction that threaded its way through
the symposium was that of same vs different. This contradiction is the argument
that, on the one hand, women are the same as men, but on the other hand we
should celebrate our differences and what makes us women. This arose during the
symposium with the issue of women’s participation in peacekeeping missions and
in the peace process. One camp is of the opinion that women’s participation
makes a difference because of the different perspective that women bring, an
alternative way of dealing with situations- more conciliatory, tending more
towards arbitration than aggression as a first reaction. This is in contrast to
the idea that women in the military should not be perceived any differently to
men; that they can undertake the same tasks and achieve the same results; and
that just because someone in a military uniform is a woman, she should not be
viewed as weaker or as someone who won’t take militaristic action. Both sides
have valid arguments, and in reality, we should apply both. The Female
Engagement Teams (FETs) that LTCOL Penny Cumming of the ADF spoke about have
achieved results that male teams were previously not able to achieve, e.g.
obtain more information about male concerns that Afghani men did not feel
comfortable discussing with other men. The all-female CivPol units that Lesley
Pruitt (Victoria University, Aust.) spoke of have been perceived by the public
to be strong women, leaders, and the presence of female police officers have
encouraged more women to enlist in the local police force. Such successes
highlight the importance of women’s immersion in conflict and post-conflict
situations.  This is despite the
continued reluctance of the military to embrace women, and the sexual and other
harassment and abuse experienced by women in the military, as demonstrated by
the difficulties and abuse faced by women in the military (Kathryn Spurling,
ANU; Olivera Simic, Griffith University).

The practical engagement of women’s groups in the
Asia-Pacific region was considered by Sharon Bhagwan Rolls (femLINKPACIFIC,
Co-chair Pacific Regional Working Group on Women, Peace and Security) and by
the plenary speaker, Hilary Charlesworth. Bhagwan Rolls talked about Fiji and
Papua New Guinea, while Charlesworth revealed the inner workings of women in
the peace process in Timor Leste. Such engagement highlighted the foremost
concern of the symposium- the practicalities and realities faced by women in
post-conflict situations in being heard in the peace, reconciliation and
rebuilding processes.

Accountability of peacekeepers for criminal offences
including sexual exploitation and abuse has been an issue of much discussion
within the UN, NGOs, and amongst academics, over the past decade. The UN has
been trying to jump the hurdles of ensuring disciplinary action is taken,
fighting ‘boys will boys’ mentality and the lack of regulation and disciplinary
capabilities within the UN and sending states. The complex laws of peacekeeping
operations were tackled by Helen Durham (Australian Red Cross),[3]
who gave an overview of Status of Forces Agreements (SOFAs), and Memoranda of
Understanding (MoUs).[4]
Roisin Burke addressed the issue of state responsibility for human rights
violations by peacekeepers.[5]
The fact that sending states are granted exclusive jurisdiction over their own
military and police personnel was mentioned, as was the lack of action taken by
states, but there was no analysis of whether or not states have the legislative
capabilities to actually do so. However, this is an omission that will be
included in the publication that will arise from the symposium.

Overall, the symposium reinforced the importance of gender in
peacekeeping and peace building, whether through policing, the military, peace
negotiations, or in any other capacity. Nor is gender is just about women. The
importance of engaging women in all aspects of peace processes is relevant for
women and men, boys and girls, across all ages, races, ethnicities, and
religions.

[1] G. Heathcote, ‘Feminist Politics and the Use of Force: Theorising Feminist
Action and Security Council Resolution 1325’, 7 Socio-legal Review (2011) . See Otto’s article D. Otto, ‘Power and danger: Feminist engagement with International Law
through the UN Security Council’, 32 Australian
Feminist Law Journal (2010) 97-121.

[2] See
also S. Sivakumaran, ‘Sexual violence against men in armed conflict’, 18 (2) European Journal of International Law
(2007) 253-276.

[3] B. Oswald, H. Durham and A. Bates, Documents
on the Law of UN Peace Operations, Oxford: Oxford University Press, 2010),

[4] For
more on these laws, see M. O’Brien, ‘The Ascension of Blue Beret Accountability: International
Criminal Court Command and Superior Responsibility in Peace Operations ‘, 15
(3) Journal of Conflict and Security Law
(2010) 533-555;
Deen-Racsmany, ‘The Amended UN Model Memorandum of Understanding: A New
Incentive for States to Discipline and Prosecute Military Members of National
Peacekeeping Contingents?’, 16 (2) Journal
of Conflict and Security Law (2011) 321-355.

[5] R. Burke, ‘Attribution of Responsibility: Sexual Abuse and Exploitation,
and Effective Control of Blue Helmets’, 16 Journal
of International Peacekeeping (2012) 1-46. See also this author’s piece
M. O’Brien, ‘State Responsibility for Sexual Exploitation and Abuse as
Human Rights Violations by Peacekeepers’, in A.P. Foley (ed.), Ethics, Evil, Law and the State: State Power
and Political Evil Oxford: Inter-Disciplinary Press, 2011), 17-28.

The ICC should resist its “Boy Scout Mentality” in relation to Vatican “Crimes against Humanity” for child abuse

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By Dov Jacobs

Cross-posted on Spreading the Jam 

 

Earlier this week, the Center for Constitutional Rights (CCR) submitted, on behalf of the Survivors Network of Those Abused by Priests, a communication  to the International Criminal Court requesting that an investigation be opened for Crimes against Humanity committed by high-level Vatican officials.

In a nutshell, the submission argues that there is evidence of widespread and systematic abuse (both rape and torture) of a civilian population by priests in a number of countries and that the Vatican, and more specifically Joseph Ratzinger, both in his former capacity as Prefect of the Congreation of the Doctrine of the Faith, and current capacity as Pope Benedict XVI, should be held liable for covering this up, even to the point of promoting it (this last point is a little ambiguous and I’ll return to it later).

 

This idea has been floating around for a while now. Geoffrey Robertson published a book last year arguing for such an approach. I remain skeptical however and think that there are a number of difficulties with the submission.

 

As a preliminary remark, one should remember that the Prosecutor is under no obligation to proceed from here, neither to open a preliminary examination, nor, of course, to open a formal investigation. The submission by the CCR does not "trigger" the jurisdiction of the ICC, as would a referral by a State Party of the Security Council, and the OTP is not even under an obligation to respond to the submission (although it claims that, for reasons of transparency, it generally will "aim" to respond to communications).

 

I would like to comment on three aspects: jurisdiction, the scope of the situation, and finally on whether the crime is actually constituted.

 

 

  • Jurisdiction

First of all, it should be pointed out that the Prosecutor, should it proceed with an investigation, would only be able to look into crimes that were committed after the entry into force of the Statute in July 2002. Moreover, he will only be able to look at alleged crimes that took place, either on the territory of a State Party or by a national of a State Party. In this sense, it explains why the Communication includes the United States and one alleged american perpetrator, to the extent that the crimes in the US could have been committed by nationals of State Parties and that the American Citizen might have committed crimes on the territory of State Parties.

 

 

  • The scope of the situation

 

Second of all, the submission raises the question of the scope of the "situation" that would be the object of an investigation. Traditionally, situations have been expected to be limited in some way, especially from a territorial perspective. Up to now, this has been the case for all the situations looked into by the Court. The CCR submission, if it was followed would therefore be a first in the history of the Court, by defining a situation through a unity of crimes and alleged perpetrators exclusively, rather than through a territorial criteria. It should be pointed out that this is an implicit consequence of the reasoning of the CCR, because they don’t actually explicitely deal with this issue. Three brief comments on this.

1) One should remember that the ICC Statute does not define what a situation is. Therefore, as I’ve discussed before in relation to the Libya Referral, any challenges to the scope of a situation faces this difficulty of having no statutory guidelines on which to base such a challenge. The case-law has suggested some limitations to the scope of a situation, but these are vague enough for anybody to argue that they could be extended to cover the events in the current submission.

2) It remains that there might be a difficulty with the submission when one considers not so much the concept of "situation" in general, but consider it in relation to the other ICC distinction, namely a "case". Indeed, I might not be able to define a situation, but what the CCR is describing in its communication certainly appears to me to be a "case": they identify a crime, the perpetrators and the mode of liabity. In this sense, the OTP, even should it accept a broader approach to a "situation", would be in violation of the Statute and the rights of the defense should it define the situation in the terms used by the CCR.

3) Which leaves the question open of how this situation would be phrased. One option would be to open a distinct investigation into each of the countries named by the CCR, but in practice, it would still require that it be shown that the crime is constituted based on a transnational policy.

 

 

  • Is the alleged crime of "Crimes against Humanity" actually constituted? (and another rant on the confusion between HR and ICL…)

 

 

Which brings me to my third point : there is the major issue of whether Crimes against Humanity are indeed constituted. There is no doubt that the abuse in the catholic church has been widespread and systematic. Where the communication fails to convince, is on the organizational element required by the Elements of the Crimes in the following way:

"Attack directed against a civilian population"[…] is understood to mean a course of conduct […] pursuant to or in furtherance of a State or organizational policy to commit such attack. […] It is understood that “policy to commit such attack” requires that the State or organization actively promote or encourage such an attack against a civilian population.

 

A footnote to this paragraph specifies that:

 

A policy which has a civilian population as the object of the attack would be implemented by State or organizational action. Such a policy may, in exceptional circumstances, be implemented by a deliberate failure to take action, which is consciously aimed at encouraging such attack. The existence of such a policy cannot be inferred solely from the absence of governmental or organizational action

 

How does this apply to the current situation? For one, no one seems to be arguing that the Vatican set up an actual policy to perpetrate widespread and systematic abuse against persons in the care of priests. It is their "deliberate failure to take action" which is put forward. However, even if the conduct of Church authorities is subject to criticism, I think it falls short of showing that it was "consciously aimed at encouraging such attack". In this sense, when the communication says that the Vatican has been dealing with such situations in ways that ensured such violence would continue", I think it still does not establish intent, even by omission.

 

In relation to this, the reasoning of the CCR is even more confusing as regards the modes of liability put forward. Indeed, the CCR is clearly confusing the constitutive elements of the crime and the modes of liability. Let me explain. The CCR considers three possible modes of liability: superior responsibility (Article 28), contribution (25(3)(d)) and aiding and abetting (25(3)(c)). All these modes of liability have in common to be "subsidiary" to the main crime, which still has to be constituted. But the CCR does not do that. It would have to show that independently of the Vatican, its officials are claimed to "only" be the accomplice, the priests that committed the abuse acted under a plan or policy that they had set up, which, again, is not argued here. Indeed, without an established Vatican policy there is nothing that links the individual cases of abuse in a sufficiently organisational way to constitute a crime against humanity.

 

The consequence of this is that the Vatican officials are either responsible for "direct" commission under 25(3)(a), or not responsible at all. But they cannot be held complicit for a crime that is not constituted independently  of them. Which leaves us with one, arguably progressive, but at least coherent way of putting the case forward. It is the systematic cover up of this widespread abuse that constitutes the crime against humanity, not the abuse itself. This would mirror the development under human rights law of positive obligations, whereby if the State does not prevent the violation of a right under the ECHR, for example, by a third party, it is held responsible for the violation of that right. This reasoning would at least solve the issue of the modes of liability and the constitution of the crime.

 

However, and regular readers of this blog won’t be surprised, I am not in favour of such an approach. This communication illustrates once again the slow (and apparently inevitable) blurring of the line between human rights and international criminal law. For me, widespread and systematic human rights violations do not necessarily constitute crimes under international law. These are related, but conceptually distinct domains that should remain distinct. In relation to this, it is unsurprising that the Communication relies heavily on the ICC Pre-Trial Chamber decision that authorized the opening of the investigation in the Kenya situation. I criticised it at the time, agreeing with the dissenting opinion of Judge Kaul, for broadening too much the scope of Crimes against Humanity. I expressed similar doubts in relation to the reference to Crimes against Humanity in the Libyan Arrest warrants. In a way, you can’t blame the CCR for its communication. It’s a direct consequence of all-encompassing conceptually blurred approach to crimes against humanity by the ICC judges themselves that is to blame. The conduct of the Church in past decades is certainly appalling, requires the utmost attention and should be dealt with accordingly, but, but I remain convinced that the ICC is not the right forum.

 

Hopefully, the Prosecutor and judges will not fall victim once again to the "boy scout mentality", which leads them to systematically want to save the world with two twigs and a piece of rope, even if someone else might have a far better set of tools…

 

UPDATE: Of course, another angle to approach this is from a PR perspective. It is clearly the ambition of the CCR to get media attention over the issue. This plays into the general trend of trying to get the ICC involved in every situation, to get some news coverage. Indeed, no situation seems to escape this trend (Palestine, Syria, Tunisia…). As discussed above, I disagree with this conceptually, but I have to admit that it is certainly effective. Thanks Joe for pointing this out.

Issues of attribution in Al-Jedda and Srebrenica: The cases compared

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By Tobias Thienel

My co-blogger Otto has a post at the blog of the Peace Palace Library, announcing and discussing the English version of the Srebrenica judgments in the Court of Appeal in The Hague. The two judgment, which are nearly identical, are available here; Otto’s post explains the reasoning of the Court of Appeal, as well as that of the court below (which was overruled).

 

I will now take the opportunity to offer a very brief comparison between the Dutch case and the treatment of the attribution issue by the European Court of Human Rights in Al-Jedda v United Kingdom (GC). As will be recalled, Al-Jedda concerned the attribution of measures of internment in Iraq to the UN or to the armed forces of the UK, whereas the Srebrenica cases in The Hague were about liability for the failure of Dutch peace-keeping forces to protect Bosnian civilians from the massacre in Srebrenica in 1995.

 

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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.

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It’s a good day for human rights law

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By Tobias Thienel

It’s a good day for human rights law because the Grand Chamber of the European Court of Human Rights has today delivered its judgments in Al-Skeini and Others v United Kingdom, Al-Jedda v United Kingdom and Bayatyan v Armenia. In all these cases, the applicants have now won, after losing everywhere else on the way to the Grand Chamber. I, for one, did not necessarily expect that.

 

I will have something more to say on these cases later, and readers are advised – though no doubt unnecessarily – to turn to EJIL:Talk where Marko Milanovic is sure to have enlightening comments fairly soon. Suffice it to say here and at this stage that

– in Al-Skeini the Grand Chamber very quickly demolished the reasoning of the House of Lords (and the High Court before it) in holding that the European espace juridique of the Convention (as mentioned in para 80 of Bankovic and Others v Belgium and Others) was in no way a limit to the extraterritorial application of the ECHR. This is clearly right. I do not begin to believe that the Court was influenced by my article on this question (the works of Ralph Wilde and Marko Milanovic may be another matter), but it is good to be proved right by high authority.

– also in Al-Skeini, the Court found that the UK had had effective control for the purposes of Article 1 because, as an occupying power, it had exercised some of the powers of the local state. The Court is not entirely clear whether it applied the model of ‘jurisdiction over territory’ or of ‘jurisdiction over a person’, but it seems that it was the latter, if somewhat curiously set in a general situation of some control over territory.

– still in Al-Skeini, it is regrettable that the Court has not followed the clear line taken by Judge Bonello in his – beautiful! – concurring opinion. It has spoken of ‘effective control’ as the decisive matter, but in rehearsing other bases of extraterritorial application has stuck to the strange view that the powers of diplomatic agents and the like under general international law were somehow decisive as well. This should be a matter of control as in all other cases.

– in Al-Jedda, the Court simply read down the Security Council resolutions that were said to have authorised the applicant’s detention. In doingso, it quite properly approved a principle of construction by which SC resolutions should, where possible, be read to comply with human rights law. Only Judge Poalelungi found this impossible. The majority avoided the Article 103 point, but the sole dissenting Judge would have followed the House of Lords on this matter.

– finally, in Bayatyan, the Court ruled in favour of a right of conscientious objection under Article 9 of the ECHR. It overruled the (small) Chamber and a good body of Commission case law in holding that Article 4 (3) (b) had nothing to say about this. This meant that the interesting methodological point about the limits of the ‘living instrument approach’ in the face of clear implications from the wording (as to which see this previous post) did not arise.