THE NATO BOMBING CASE (BANKOVIC ET AL. V. BELGIUM ET AL ...

More documents

Recommendations

Info

60 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL [Vol. 23:55national law scholars. 21 It concluded its analysis in this respect by repeatingits basic ruling that Article 1 had to be understood “to reflect thisessentially territorial understanding of jurisdiction.” 22There is, of course, a great deal of ambiguity and vagueness in thislanguage. Unfortunately, the Court never carried the process of clarificationmuch further and one never quite learns what standard the Court’sinterpretation yields. However, what one does learn is that, according tothe Bankovic Court, this interpretation – that Article 1 has to be understoodto reflect an essentially territorial understanding of jurisdiction –plainly follows from previous case law and the traveaux preparatoires(preparatory work). In an attempt to give some content to its interpretation,the Court observed that previously it had recognized the exercise ofextraterritorial jurisdiction by a Contracting State in cases where (i) therespondent state, as a consequence of a military occupation, effectivelycontrolled the relevant territory (and only when that territory belongedto another Contracting State) or (ii) the respondent state did in fact havethe right, under international law, to exercise extraterritorial jurisdiction.23 After characterizing previous case law this way without muchrationale, the Court then declared it had to be “satisfied that equallyexceptional circumstances exist in the present case which could amountto the extra-territorial exercise of jurisdiction by a Contracting State.” 24Exactly what standard the Court ultimately relied on in determiningthe Bankovic case is uncertain. What is clear is that, according to theCourt, an extraterritorial act, no matter how deliberate or heinous, cannever in and of itself give rise to Convention responsibility. This followsfrom the way the Court framed the question before it and its concludingremarks. 25 It also follows from the Court’s assertion that the questionwhether an individual falls within the jurisdiction of a Contracting State isseparate from the question whether an individual can be considered to bea victim of a violation of rights guaranteed by the Convention. Thesewere, the Court stated, “separate and distinct admissibility conditionseach of which has to be satisfied in the aforementioned order, before anindividual can invoke the Convention’s provisions against a ContractingState.” 26 For Convention responsibility to arise, there must be someother pre-existing relationship – a “jurisdictional link” – between thealleged victim and the Contracting States. 27 This, of course, is preciselywhat the governments had claimed. In holding the case inadmissible, the21 Id. 59-61.22 Id. 61.23 Id. 68-73.24 Id. 74.25 Bankovic v. Belgium, 54.26 Id. 75.27 Id. 82.
2005]THE NATO BOMBING CASE AND HUMAN RIGHTS PROTECTION 61Court apparently was not satisfied that the required “jurisdictional link”existed between the applicants and the respondent states.B. Flaws in the Court’s ApproachThis article argues that the Court’s opinion in Bankovic is deeplyflawed and displays a troubling misconception of the nature of the Convention’srights and the Court’s own responsibilities under the Convention.To be clear, our criticism of Bankovic is not meant to suggest thatwe believe that the bombing of RTS and the deaths that ensued werenecessarily violations under the Convention. Nor do we oppose NATO’smilitary intervention in FRY per se, although we do find some of theactions taken by NATO in this campaign, including the bombing of RTS,to be, at a minimum, morally disconcerting. This, however, has no bearingon the substance of our critique here. Further, we do not deny that thiscase, involving a military attack conducted by NATO in an internationalarmed conflict, presented some rather complex and sensitive questions;questions, which, one might reasonably argue, the Court is not wellequipped to decide. In particular, we would not have been entirelyunsympathetic had the Court candidly admitted, or at least had givensome indication, that it was unsuitable to determine whether the deathsresulting from this attack violated the applicants’ right to life and thusdeferred the matter to the democratic political process of the ContractingStates.Such an approach would have called attention to the fact that theCourt’s role in securing Convention rights – and the role of judicialreview in the Convention system – is not without boundaries and that theprimary responsibility for doing so lies with the Contracting States themselves.These considerations are, of course, at the heart of the “margin ofappreciation” doctrine, 28 to which the Court has resorted in arguably lesscompelling circumstances. Whether it would have been appropriate forthe Bankovic Court to resort to this approach is debatable. We areinclined to answer that question in the negative. In our opinion, humanrights issues raised by the intended actions of states, especially when concerningthe life and death of civilians, should ideally never be deferred topolitical discretion alone, regardless of any distinction drawn betweennational and international politics.Finally, we do not consider the question of Contracting States’ obligationsto persons outside of their territories to be a simple matter. It isnot. Had the Court recognized the complexity of this matter and made asincere and thoughtful attempt to resolve it, but nonetheless reached asimilar holding (which on this assumption we doubt it would have), wewould be more understanding.28 For an account on the “margin of appreciation” doctrine see D.J. HARRIS, M.O’BOYLE & C. WARBRICK, LAW OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS12-15 (1995).
Page 1 and 2: THE NATO BOMBING CASE (BANKOVIC ET
Page 3 and 4: 2005]THE NATO BOMBING CASE AND HUMA
Page 5: 2005]THE NATO BOMBING CASE AND HUMA
Page 12 and 13: 66 BOSTON UNIVERSITY INTERNATIONAL
Page 57 and 58:
2005]THE NATO BOMBING CASE AND HUMA
Page 59 and 60:
Page 61 and 62:
Page 63 and 64:
Page 65 and 66:
Page 67 and 68:
Page 69 and 70:
Page 71 and 72:
Page 73 and 74:
Page 75 and 76:
Page 77 and 78:
Page 79 and 80:
Page 81 and 82:
show all

THE NATO BOMBING CASE (BANKOVIC ET AL. V. BELGIUM ET AL ...

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?