International and Comparative Law Quarterly

Article

AS BAD AS IT GETS: THE EUROPEAN COURT OF HUMAN RIGHTS'S BEHRAMI AND SARAMATI DECISION AND GENERAL INTERNATIONAL LAW

Marko Milanovića1 and Tatjana Papića2

a1 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.

a2 LLB (Belgrade), LLM (Connecticut); Assistant Professor, Union University School of Law, Associate, Belgrade Centre for Human Rights. Email: tatjana.papic@gmail.com.

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 pursuant to 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 its reluctance 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.

Footnotes

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.