A Credibility Gap: The Behrami and Saramati Decision of the European Court of Human Rights

Abstract

AbstractWith the Behrami and Saramati decision the European Court of Human Rights misses an important opportunity to close the credibility gap in human rights protection during the international administration of territories such as Kosovo. The article criticises the attribution of KFOR acts to the United Nations. It holds that the equation of delegation and attribution as well as the ultimate authority and control test as a criterion for attribution are not in line with UN practice. Instead the article argues in favour of a responsibility of the Troop Contributing Nations. Their responsibility is either based on dual attribution or on the jurisprudence of the Court on the transfer of powers to international organisations. The Court's intention is understandable to protect the universal UN security system by not declaring acts of the Security Council incompatible with European standards. However, it will harm the credibility of UN administration of territories in the long run if collective security concerns prevail over human rights protection. In view of the exercise of quasi-governmental acts by the UN Security Council the article stresses the obligations of ECHR Member States to work towards the establishment of a human rights tribunal on the level of the United Nations.