Jurisdiction of the European Court of Human Rights: Exorbitance in Reverse? Can, and Should, an Iraqi Victim of Human Rights Abuses Inflicted by U.K. Troops Have a Remedy in U.K. Courts under the European Convention of Human Rights?

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ISSUE: To what extent is the European Convention for the Protection of Human Rights and Fundamental Freedoms applicable to acts of a signatory outside its national boundaries, both within and outside the territory of Council of Europe member states? Is the debate on the limits of the espace juridique of the Convention legally still relevant to extraterritorial state actions? What are the practical implications for states of the current approach to extraterritorial jurisdiction of the Convention in the context of United Kingdom troops in Iraq and Afghanistan, as well as for European peacekeepers worldwide?

I. INTRODUCTION

Hazim, a twenty-three year old Iraqi citizen, was attending a funeral in his home town on August 4, 2003, when he was shot dead by a British soldier. Subsequently, his family received a letter of apology from the United Kingdom (U.K.) military forces, offering a small donation as compensation. In a similar incident, Raid, an Iraqi policeman taking a box of "suggestions and complaints" to a local judge, was shot dead by a British patrol. No letter of apology was offered to his family with regard to the tragic incident. (1)

There are many such stories, some recorded officially by the U.K. military stationed in Iraq and others recounted informally by foreign correspondents and human rights activists working in the war zones. The official stories are archived, while the unofficial stay in the minds of the families left behind to heal their wounds as best they can under the circumstances. However, are the circumstances such that they allow for no better alternative?

The family of Hazim Al-Skeini challenged the status quo and sought redress for the human rights abuses their son suffered under the U.K. military presence in their country. Their endeavor led to the first case ever brought by Iraqi citizens in a U.K. court against the U.K. government under the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention). (2) An appeal is currently pending in the U.K. court of last resort, the House of Lords.

This Note explores whether persons such as Hazim and Raid should have standing in European domestic courts and whether the Convention is applicable in such far-flung areas as Iraq and Afghanistan, which clearly do not fall within European boundaries, but where there is extensive European military or peacekeeping presence. Is the European Court of Human Rights (the Court) justified, on moral and/or procedural grounds, in extending jurisdiction of the Convention extraterritorially? How can a constructivist approach to interpretation of the Convention be reconciled with an activist argument for the moral need to uphold human rights in a manner appropriate for the 21st century?

Part II will examine the groundwork laid by the Court through case law on the interpretation of the Convention's jurisdiction, beginning with the Convention's jurisdiction within a nation's borders. The Court has interpreted strictly such territorial jurisdiction and has not allowed any signatory to be excused from upholding its obligations within its own territory, no matter the extent of the internal struggles for control. Second, the concept of "effective overall control" will be introduced, under which the Court has extended a state's responsibilities extraterritorially, but only within another signatory's territory over which the former exercises control. Third, the Note will review the concept of dual jurisdiction allowed by the Court, where both the signatory in effective overall control of the foreign territory and the signatory officially in control of such a territory are held jointly responsible under the Convention.

Under all of the above scenarios, the Court has faced no difficult dilemmas with regard to the Convention's jurisdiction, because at no time has it been confronted with the possibility of creating a vacuum of redress for human rights abuses. …