Behrami Saramati

AS BAD AS IT GETS: THE EUROPEAN COURT OF HUMAN RIGHTS’S BEHRAMI AND SARAMATI DECISION AND GENERAL INTERNATIONAL LAW
´ ´ MARKO MILANOVIC* AND TATJANA PAPIC**

Abstract This article examines the European Court of Human Rights’s encounter with general international law in its Behrami and Saramati admissibility decision, where it held that the actions of the armed forces of States acting pursuantto UN Security Council authorizations are attributable not to the States themselves, but to the United Nations. The article will try to demonstrate that the Court’s analysis is entirely at odds with the established rules of responsibility in international law, and is equally dubious as a matter of policy. Indeed, the article will show that the Court’s decision can be only be explained by itsreluctance to decide on questions of State jurisdiction and norm conflict, the latter issue becoming the clearest when Behrami is compared to the Al-Jedda judgment of the House of Lords.

I. INTRODUCTION

It is rare for one to see a judgment of a court as eminent as the European Court of Human Rights which is as troubling as the Court’s inadmissibility decision in the Behrami and Saramati case.1Yet, here we are, faced with the ruling that the actions of NATO-led peacekeepers in Kosovo are neither attributable to NATO, nor to any of its Member States, but exclusively to the United Nations, which authorized their presence there. In this article, we hope to demonstrate that the Court’s ruling is unsatisfactory both as a matter of law and as a matter of policy. Most disturbingly, it sends aclear message to States

* LLB (Belgrade), LLM (Michigan), PhD candidate (Cambridge); Associate, Belgrade Centre for Human Rights, formerly law clerk to Judge Buergenthal, International Court of Justice. Email: marko.milanovic@gmail.com. ** LLB (Belgrade), LLM (Connecticut); Assistant Professor, Union University School of Law, Associate, Belgrade Centre for Human Rights. Email:tatjana.papic@gmail.com. We would like to thank James Crawford, Vladimir Djeric, Vera Gowlland-Debbas, Robert Kolb, Andreas Paulus and Tobias Thienel for their most helpful comments, and Biljana Braithwaite and the AIRE Centre for providing us with some of the parties’ written pleadings. All errors remain our own. 1 Behrami and Behrami v France, Saramati v France, Germany and Norway, App Nos 71412/01 &78166/01, Grand Chamber, Decision, 2 May 2007. For the sake of brevity, the decision will be referred to throughout this article simply as Behrami. However, when the factual and legal differences between the two joined cases so require, we will refer to Saramati separately from Behrami, as will be apparent from the context of the discussion. [ICLQ vol 58, April 2009 pp 267–296]doi:10.1017/S002058930900102X

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International and Comparative Law Quarterly

that they can do whatever they wish and escape any human rights scrutiny so long as they shield themselves by obtaining the imprimatur of an international organization. As we will show, that message of unaccountability is completely incongruous with the general international law of responsibility. To that effect, Section 2 of thisarticle will briefly summarize the Court’s decision. In Section 3 we will examine the three strategic moves that the Court used to reach the result that it did. First, unlike the parties who argued the case in terms of State jurisdiction within the meaning of Article 1 of the European Convention on Human Rights (ECHR), the Court chose to approach the case from the standpoint of attribution. Secondly,the Court linked the issue of attribution with the mandate granted to the international civil and security presences in Kosovo by the UN Security Council. Thirdly, the Court further tied the question of attribution to the notion of delegation of powers by the Security Council. In Section 4, we will demonstrate that the Court’s approach is at odds with the established principles of international...