A New Watershed? Re-evaluating Banković in Light of Al-Skeini

Abstract

Issues surrounding the extraterritorial reach of human rights treaties, particularly the European Convention on Human Rights (ECHR), have become highly pertinent in the context of military operations abroad, such as the UK occupation and military action in Iraq.1 Until recently, the major authority on the extraterritorial application of the ECHR was the controversial decision of the European Court of Human Rights in Bankovic v Belgium in 2001.2 The Court dismissed a claim against 17 NATO states for deaths and injuries caused by a NATO airstrike in Belgrade during the Kosovo crisis, on the basis that the jurisdictional threshold in ECHR Article 1 was not met. Article 1 requires that states parties secure the rights and freedoms in the Convention to “everyone within their jurisdiction”. This is a necessary condition for the application of the Convention: either the Convention applies or it does not. It is established that the notion of jurisdiction in Article 1 is