Al-Jedda V. United Kingdom, App. No. 27021/08, European Court of Human Rights, 7 July 2011

Abstract

The Al-Jedda case presented the European Court with an opportunity to address the unhappy implications of its earlier decision in Behrami. The Court could have done so on a principled basis and formally overturn Behrami in response to its overwhelmingly negative reception. Instead, it decided to follow the House of Lords in distinguishing Al-Jedda from Behrami on the facts.

Although there are obvious differences between KFOR and the MNF, the material facts are identical and point to the conclusion that the Security Council retained overall authority and control over both operations. By overemphasising the differences and neglecting the similarities between KFOR and the MNF, the Court managed to arrive at the right conclusion: it declared that the acts of British forces participating in the MNF could not be attributed to the UN and that Al-Jedda therefore fell within the UK’s jurisdiction. However, it arrived at this conclusion at the cost of preserving, if not deepening, the conceptual confusion in its case-law.

Keywords: European Convention on Human Rights, extra-territorial jurisdiction, military operations