Margins of Conflict: The ECHR and Transitions to and from Armed Conflict

The George Washington International Law Review, January 1, 2012 | Go to article overview

Margins of Conflict: The ECHR and Transitions to and from Armed Conflict


Margins of Conflict: The ECHR and Transitions to and from Armed Conflict, Edited by Antoine Buyse. Antwerp: Intersentia, 2011. Pp. 196. $74.25 (hardcover).

This book contains a collection of seven articles that resulted from a 2009 seminar regarding the interaction between conflicts and human rights.

The first article, Human Rights Without Peace? The European Court of Human Rights and Conflicts Between High Contracting Rights, by Egbert Myjer, begins by describing the post-World War II conditions that led to the creation of the European Convention on Human Rights. The article then discusses the differences in execution of European Court of Human Rights (ECHR) judgments in peacetime as compared to wartime. The article mainly focuses on Varnava and Others v. Turkey, which dealt with Turkish troops occupying northern Cyprus and the disappearances of Cypriot nationals in 1974. Myjer discusses issues including the delay in deciding the case, the relationship between territoriality and jurisdiction of the ECHR, whether the Turkish judge could sit in the Grand Chamber, and a variety of substantive and procedural legal concerns by quoting at length from the ECHR's opinion. Myjer discusses other post-conflict cases that deal with property concerns. He predicts that the appropriate solution will likely be political rather than judicial. The article concludes by reiterating the limits on the ECHR's jurisdiction and the balance between judicial and political resolution of post-armed conflict problems. Myjer remains optimistic that having some judicial input is better than none. The author, Egbert Myjer, is a judge on behalf of the Netherlands at the ECHR.

The second article, Crisis Situations, Counter Terrorism and Derogation from the European Convention of Human Rights: A Threat Analysis, by Jan-Peter Loof, focuses on Article 15 of the European Convention on Human Rights, as it relates to countries' counterterrorism policies in the wake of the September 11 attacks on the United States. Article 15 permits violations of human rights in times of war or other extreme circumstances. Loof begins by providing a brief overview of the history of Article 15. He then discusses the notion of "exceptional threat" and then summarizes various scholars' and the ECHR's approach to this idea. Loof criticizes the concept of the "margin of appreciation," which is the deference granted by the ECHR to countries to determine whether a public emergency exists. The ECHR employs a proportionality test to determine whether to grant the margin of appreciation to member states. The author concludes that the ECHR's supervision when countries suspend human rights in times of emergency is flawed. Nevertheless, he argues that the poor process has not caused any substantial harm, because the proportionality requirement offsets the wide margin of appreciation. The author, Jan-Peter Loof, is an assistant professor of constitutional and administrative law at the Institute of Public Law of Leiden University in the Netherlands and senior research fellow of the Netherlands School of Human Rights Research.

The third article, Really Out of Sight? Issues of Jurisdiction and Control in Situations of Armed Conflict Under the ECHR, by Rick Lawson, begins by noting that the ECHR finds that it has jurisdiction over claims occurring in any territory over which a signatory to the ECHR convention has effective control. Lawson describes the landmark Bankovic case, in which the ECHR took a restrictive approach to jurisdiction and rejected jurisdiction when a bomb or cruise missile hit a building in the physical territory of a state that was not a member state of the Council of Europe or a signatory to the European Convention on Human Rights. The article then notes a subsequent trend away from Bankovic in the evolution of the ECHR's case law regarding member states' responsibility for extraterritorial actions during armed conflict. Lawson suggests that states should take reasonably practical steps to protect the rights of individuals extraterritorially. …

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