Respecting human rights abroad? On the extraterritorial application of the European Convention on Human Rights

Under which circumstances can the European Convention on Human Rights be applied to human rights violations perpetrated abroad by European military forces or other State agents? This question is highly relevant having in mind the European military presence in for example Iraq and Afghanistan. In contrast to the four Geneva Convention, applicable in armed conflict, the European Convention has a jurisdiction clause, which sets out limits on its applicability. Article 1 of the Convention provides that the Convention only applies to individuals within the State parties' jurisdiction. What does this mean? Is the Convention's applicability limited to human rights violations taking place on the territory of the acting State? The meaning of the term jurisdiction in international law is primarily territorial and, as also originally intended with human rights treaties, the Convention primarily applies to human rights violation committed on the territory of the acting State. However, it follows from the jurisprudence of the European Court of Human Rights that the Convention exceptionally applies to extraterritorial human rights violations, i.e. violations committed outside the national territory. This is the case when the acting State exercises effective control over the territory of another State, or when it exercises authority over persons present outside the national territory. There is, however, a controversy on whether the Convention applies extraterritorially only within the boarders of the High Contracting Parties to the Convention, e.g. not in Iraq or Afghanistan, or also in the rest of the world. Drawing conclusions from the Court's case law it becomes clear that the criteria mentioned above create jurisdiction ipso facto. The determinant factor is the level of control exercised by the State agents in relation to the victim. Hence, the extraterritorial application of the Convention does not seem to have any geographical constraints. The conclusion from the analysis of the Court's jurisprudence taken together with the principles of interpretation set out in the Vienna Convention, in particular the 'object and purpose'-principle, shows that the Convention can apply also to human rights violations committed by European soldiers in e.g. Iraq. Drawing from the Court's decision in the renowned Bankovic case, dealing with the 1999 NATO air bombings of Belgrade, the Convention is not applicable to air bombings or so called collateral damage, but very well on arrests or e.g. incidents of torture in British-led prisons