Things Could Only Get Better: Al-Jedda Beyond Behrami
Military Law and the Law of War Review (Revue de Droit Militaire et de Droit de la Guerre), Vol. 50, Issue 3-4, 321-346, 2011
16 Pages Posted: 17 Nov 2011 Last revised: 14 Jul 2012
Date Written: November 16, 2011
In July 2011, the Grand Chamber of the European Court of Human Rights (ECtHR) held in Al-Jedda v. United Kingdom that the UK was responsible for the misconduct of its troops deployed as part of the UN-authorized Multinational Force in Iraq. Together with two other recent cases, Al-Saadoon and Al-Skeini, this may be the start of a trend in the ECtHR directed at clarifying and expanding the scope of the European Convention by partially overcoming two notorious sets of precedents: the Behrami jurisprudence on the attribution of conduct of military personnel involved in operations under UN auspices; and the particularly ambiguous Banković jurisprudence on the extraterritorial scope of human rights protection. This article focuses on the Behrami side of Al-Jedda’s story: the question of attribution of conduct. Despite the attempts by the ECtHR to pay lip-service to Behrami by distinguishing it on the facts, the practical result of Al-Jedda is that Behrami should no longer be considered ‘good law’ when it comes to attribution of conduct during UN-authorized peace support operations. This is a major development, given that Behrami was almost universally criticised by legal commentators for being wrong both as a matter of law and as a matter of policy.
Keywords: Al-Jedda, Behrami, attribution of conduct, international responsibility, peacekeeping, peace support operations, European Court of Human Rights
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