Accountability for violation of the Convention rights and freedoms of persons in another state stems from the fact that article 1 of the Convention cannot be interpreted so as to allow a state party to perpetrate violations of the Convention on the territory of the other state which it could not perpetrate on its own territory.
The court was asked whether extra-territorial jurisdiction existed in relation to allegations that Turkey had committed breaches of ECHR rights in connection with the deaths of Iraqi shepherds who had allegedly been killed by Turkish soldiers in northern Iraq.
Held: The question of jurisdiction raised a live issue. Turkey had at all times denied the factual basis of the applicants’ allegations and, by implication, their specific and crucial contention that the deceased shepherds were under the control and authority of Turkish armed forces operating in northern Iraq at the relevant time and were, accordingly, within the jurisdiction of Turkey. The argument of the Turkish Government on the jurisdiction issue picked up the Court’s conclusion in Bankovic that the ECHR was a treaty operating in an essentially regional context. Turkey asserted that the mere presence of Turkish armed forces in northern Iraq for a limited time and for a limited purpose was not synonymous with Article 1 ‘jurisdiction’. Turkey did not exercise effective control of any part of Iraq. In any event no Turkish soldiers had been present in the relevant area. The applicants maintained that Turkey’s ground operations in northern Iraq at the time (when they were deploying more than 35,000 ground troops backed by tanks, helicopters and F-16 fighter aircraft) were sufficient to constitute ‘effective overall control’ (within the meaning of the Loizidou judgment). Given the degree of control enjoyed by the Turkish armed forces of the area, they argued that the Turkish government had de facto authority over northern Iraq and its inhabitants, as opposed to de jure sovereignty. When it set out the governing principles the Court reminded itself that the concept of ‘jurisdiction’ for the purposes of Article 1 of the ECHR had to be considered to reflect the term’s meaning in public international law. Then after setting out . . what was by now a familiar restatement of ECA principles, the court continued: ‘Moreover, a state may also be held accountable for violation of the convention rights and freedoms of persons who are in the territory of another state but who are found to be under the former state’s authority and control through its agents operating – whether lawfully or unlawfully – in the latter state (see, mutatis mutandis, M v Denmark (1992) 15 EHRR CD 28; Illich Sanchez Ramirez v France (1996) 86 DR 155; Coard v US (1999) 9 BHRC 150 at paras 37, 39, 41 and 43; and the views adopted by the Human Rights Committee on 29 July 1981 in the cases of Lopez Burgos v Uruguay (no 52/1979) (29 July 1981) at para 12.3 and Celiberti de Casariego v Uruguay (no 56/1979) (29 July 1981) at para 10.3 respectively). Accountability in such situations stems from the fact that art 1 of the convention cannot be interpreted so as to allow a state party to perpetrate violations of the convention on the territory of another state, which it could not perpetrate on its own territory ([1996] ECHR 15318/89).’
J-P Costa, P
17 BHRC 473, 31821/96, [2004] ECHR 629, (2005) 41 EHRR 27
Worldlii, Bailii
Cited by:
Cited – Regina (on the Application of Mazin Mumaa Galteh Al-Skeini and Others) v The Secretary of State for Defence CA 21-Dec-2005
The claimants were dependants of Iraqi nationals killed in Iraq.
Held: The Military Police were operating when Britain was an occupying power. The question in each case was whether the Human Rights Act applied to the acts of the defendant. The . .
Cited – Secretary of State for Defence v Smith, Regina (on the Application of) CA 18-May-2009
The soldier had died of heatstroke after exercises in Iraq. The Minister appealed against a finding that the circumstances of his death required an investigation compliant with Article 2 human rights, saying that he was not subject to such . .
Cited – Smith, Regina (on The Application of) v Secretary of State for Defence and Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission intervening) SC 30-Jun-2010
The deceased soldier died of heat exhaustion whilst on active service in Iraq. It was said that he was owed a duty under human rights laws, and that any coroner’s inquest should be a fuller one to satisfy the state’s duty under Article 2.
Cited – Smith and Others v The Ministry of Defence SC 19-Jun-2013
The claimants were PRs of men who had died or were severely injured on active duty in Iraq being variously fired at by mistake by other coalition forces, or dying in vehicles attacked by roadside bombs. Appeals were heard against a finding that the . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 October 2021; Ref: scu.227753
