The European Convention on Human Rights and Jurisdictional Links during Military Operations

Mallory, Conall (2013) The European Convention on Human Rights and Jurisdictional Links during Military Operations. In: 4th Scottish Colloquium for Early Career Legal Researchers April 2013, 19 April 2013, University of Dundee. (Unpublished)

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Abstract

The European Convention on Human Rights
and Jurisdictional Links during Military Operations

Keywords: International law; International human rights law; European Convention on Human Rights; Jurisdiction
This paper intends to discuss the applicability of the European Convention on Human Rights (ECHR) to alleged violations which arise during the course of military operations conducted by Contracting Parties to the Convention.
The scope and application of the ECHR is restricted by Article 1 to events occurring ‘within the jurisdiction’ of a Contracting Party to the treaty. Although it is generally accepted that the treaty will apply to any alleged violation which occurs within the territory of a Contracting Party, the issue becomes much more complex when concerned with events which occur beyond a state’s borders. In the 2011 Al-Skeini and Others v United Kingdom judgment the European Court of Human Rights attempted to clarify this by stating that although jurisdiction was primarily territorial it could arise extraterritorially in two situations – where a Contracting Party exercised effective control of an area beyond its own territorial borders, and where a state’s agents exercised authority or control over individuals abroad.
Using as a basis for discussion an incident wherein a French Military helicopter attack is alleged to have killed six civilians in the town of Konna, Mali, in January 2013, this paper will discuss the possible applicability of the Convention to military operations abroad. Through a detailed analysis of recent case law which has largely emanated the Iraq War and northern Cyprus, this paper will consider whether the exceptions outlined in Al-Skeini, particularly the second exception of a state agent’s exercise of authority and control, would apply in a range of military activities. The piece concludes by attempting to formulate guidelines for when an individual will fall within a Contracting Party’s ‘jurisdiction’ for the purposes of Article 1 of the Convention.

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