The Jurisdiction of the European Court of Human Rights and Armed Conflicts
Recent Developments in International Law Working Paper
22 Pages Posted: 17 Aug 2003
Date Written: May 12, 2003
In early 2003 the first applications relating to the ongoing war in Chechnya have reached Europe's top Human Rights Court, thus creating a second wave, after the Kurdish cases, of applications relating to alleged human rights violations by parties to the European Convention for the Protection of Fundamental Rights and Freedoms. These applications, which might be followed by hundreds of thousands per year, if the war continues, could lead to a serious deadlock of the Court. Therefore the question has to arise, whether or not the European Court of Human Rights has jurisdiction over such cases.
This question is of particular interest if states parties to the Convention are engaged in military operations outside their own borders: The decision whether or not the Court will have jurisdiction in such cases will to a large extend depend on the question, whether or not Art. 1 ECHR is applicable, i. e. whether or not the acts which are claimed to constitute a violation of the Convention are included in the scope of the term "jurisdiction" as used in Art. 1 ECHR. An other factor which will often be problematic will be the lack or collapse of the local court system or problems with access to justice for members of certain groups involved in the situation. Both aspects can impose serious hurdles for the applicant with regard to the requirement that all local remedies need to be exhausted in order for an application be admissible in Strasbourg. Given that the War against Terrorism continues and that parties to the Convention like the United Kingdom are currently occupying parts of Iraq while other parts are controlled by the United States which obviously is not a party to the Convention, the question of the Court's could have a major impact on how future operations will be conducted, especially when they are to serve the purpose of defending the freedoms and human rights of, for example, the Iraqi people.
In this paper, we will examine the Court's response to these questions in the conflicts in Northern Ireland, Cyprus, the 1999 NATO War against Serbia and most recently in Chechnya. It will be shown that the Court fails to give maximum protection to the people affected by armed conflicts and provide for full equal treat due to factors completely outside the control of the applicants.
On the other hand it will be shown that the Court, once it has accepted jurisdiction over a case, facilitates applications by weaving the requirement that domestic remedies are exhausted rather often while still in line with its earlier rulings.
Keywords: War, Armed Conflict, Human Rights, Europe, European Convention, Strasbourg, Law, Jurisdiction
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