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Jurisdiction and Liability under the European Convention of Contracting Parties Participating in Military Operations Abroad

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posted on 17.01.2013, 12:12 by Maribel Canto-Lopez
The conduct of military forces is not limited to their territory. They are typically sent on missions that potentially affect civilians beyond the borders of the sending State. Under the European Convention, the linking factor bringing its protection into play is that of jurisdiction under Article 1 ECHR. What is the reach of the European Convention in the context of participation by Contracting Parties in military operations abroad? The interpretation of the concept of jurisdiction has evolved from its territorial beginnings. After a detailed analysis of the case-law on the interpretation of jurisdiction, including the latest landmark cases of Al-Jedda and Al-Skeini, I conclude that the current case-law lacks coherence. The search for a more coherent approach to determining questions of jurisdiction, in situations involving military conduct abroad has steered this thesis into considering the unsatisfactory interplay between humanitarian law and human rights law and the way in which the two systems apply to civilians caught in military operations. An analysis of the case-law under the European Convention in situations where Contracting Parties send troops as part of multi-national forces has indicated the benefits of considering dual or multiple attribution rather than a separation of jurisdiction. I propose a more coherent approach to jurisdiction replacing the present uncertainty in the context of applicability of the European Convention to military operations abroad. I argue, in all situations, for a test requiring a direct and immediate link between the conduct of Contracting Parties and the violation of Convention rights as offering better protection of human rights for individuals trapped in conflicts. In this way the supervisory effect of the European Convention is enhanced.



White, Robin

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University of Leicester

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