Freeing Soering: The ECHR, State Complicity in Torture, and Jurisdiction
(2016) 27(3) European Journal of International Law 817
14 Pages Posted: 29 Apr 2016 Last revised: 11 May 2018
Date Written: April 22, 2016
Over the last ten years, there have been numerous cases of ECHR-state party complicity in torture by foreign states. Some of these cases have been entirely extraterritorial – that is, the victim is never within the territory of the complicit state. Applying the orthodox rules of attribution in international law and the current understanding of the jurisdiction under Article 1 ECHR, these cases of extraterritorial complicity would seem not to lead to the responsibility of the complicit state under the Convention. In other words, the ECHR allows states to facilitate acts of torture abroad where they could not do so at home. This is an unprincipled gap in the protections provided by the Convention.
This article argues (i) that this unprincipled gap may be overcome by re-imagining the rule in Soering as a preventive complicity rule and extending it to other forms of complicity in torture, and (ii) that such a re-imagination is supported by doctrine and principles deeply embedded in the case law of the European Court. An expansive interpretation of Article 1 ECHR to capture cases of state complicity in extraterritorial torture would be justified.
Keywords: Complicity, Jurisdiction, Al-Skeini, Torture
JEL Classification: K33
Suggested Citation: Suggested Citation