Bankovic: an obstacle to the application of the European Convention on Human Rights in Iraq?

Abstract

Major combat operations in Iraq have ended. However, the occupation is still continuing. The United Kingdom, a party to the European Convention on Human Rights (ECHR), actively took part in this war and still controls certain parts of Iraq. Allegations that British forces had violated international humanitarian law were raised during and after the war. This article discusses whether the ECHR provides a mechanism to examine those allegations. It is considered that this discussion should be carried out under the light of a recent admissibility decision of the European Court of Human Rights (ECrtHR), given in the Bankovic case, in which the ECrtHR found that the NATO attacks against Yugoslavia fall out of the extraterritorial reach of the ECHR. The first argument of the article is that the way in which the ECrtHR interprets the term `jurisdiction` in the Bankovic case is flawed. It is contended that the ECrtHR should reexamine its observations on jurisdiction, if an application concerning the conduct of British forces in the Iraqi war was brought before the court. Secondly, the article maintains that as the situation in Iraq is different from the one in Kosovo, the ECHR should apply to the region under the control of the UK. Indeed, while the Bankovic case only concerned aerial bombardment of Serbia, the ECrtHR might face various complaints emanating from the use of ground forces and belligerent occupation in Iraq.