Things Could Only Get Better: Al-Jedda Beyond Behrami
Published in: 50 Military Law and the Law of War Review / Revue de Droit Militaire et de Droit de la Guerre (2011). Available on SSRN.
In July 2011, the Grand Chamber of the European Court of Human Rights (ECtHR) held in Al-Jedda v. United Kingdom (link) that the UK was responsible for the misconduct of its troops deployed as part of the UN-authorized Multinational Force in Iraq. Together with two other recent cases, Al-Saadoon and Al-Skeini, this may be the start of a trend in the ECtHR directed at clarifying and expanding the scope of the European Convention by partially overcoming two notorious sets of precedents: the Behrami jurisprudence on the attribution of conduct of military personnel involved in operations under UN auspices; and the particularly ambiguous Banković jurisprudence on the extraterritorial scope of human rights protection. This article focuses on the Behrami side of Al-Jedda’s story: the question of attribution of conduct. Despite the attempts by the ECtHR to pay lip-service to Behrami by distinguishing it on the facts, the practical result of Al-Jedda is that Behrami should no longer be considered ‘good law’ when it comes to attribution of conduct during UN-authorized peace support operations. This is a major development, given that Behrami was almost universally criticised by legal commentators for being wrong both as a matter of law and as a matter of policy.