Admissibility of the Application by Vlastimir and Borka Bankovic, Zivana Stojanovic, Mirjana Stoimenovski, Dragana Koksimovic, and Dragan Sukovic against Belgium, the Czech Republic, Denmark, France, Germany, Greece, Hungary, Iceland, Italy, Luxembourg, The Netherlands, Norway, Poland, Portugal, Spain, Turkey, and the United Kingdom, European Court of Human Rights, Grand Chamber Decision, [2001]

Tullio Scovazzi

Relevance of the case

The decision in the Bankovic case,^[1] made on 12 December 2001, is mostly relevant for being one of few cases in which the European Court of Human Rights (ECtHR) took a position that without an acceptable explanation restricts the application of human rights granted by the European Convention on Human Rights (ECHR).

The seventeen respondent states belong to the North Atlantic Treaty Organization (NATO), an international organization that, following a decision of its North Atlantic Council, effected from 24 March to 8 June 1999 air strikes against the Federal Republic of Yugoslavia (FRY).

How effective is international adjudication in cases involving what historically has proved to be the most sinister way of using force, provoking many civilian casualties through aerial bombing? Apart from the legal aspects of the case, this is the main political question involved in the Court decision.

I. Facts of the case

On 23 April 1999 a missile launched from an aircraft engaged in NATO air strikes hit the television and radio station in Belgrade (Radio Televizije Srbije, RTS). Two of the four floors of the building collapsed. Sixteen civilian persons were killed and another sixteen were seriously injured. The daughter of the first and second applicants, the sons of the third and fourth applicants, and the husband of the fifth applicant died and the sixth applicant was injured.

As international organizations, such as NATO, are not parties to the ECHR, and it was not possible to identify the nationality of the aircraft that launched the missile, the applicants, all nationals of Yugoslavia, brought the case against all the states parties to the ECHR involved in the air strikes, which they considered as severally liable for the attack against RTS. During the proceedings, the respondent states maintained that the Court could not decide the merits of the case, as it lacked jurisdiction ratione loci, and as a decision would determine the rights and obligations of Canada, the United States, and of the NATO itself, none of whom were parties to the ECHR. France also argued that the Court lacked jurisdiction ratione personae, as the bombardment was imputable only to the NATO, an organization with an international legal personality separate from that of the respondent states.

II. The legal question

On the merits the applicants relied on arts. 2 (right to life), 10 (freedom of expression) and 13 (right to an effective remedy) ECHR. However, before entering into the substance of the case, the Court was called to address the question of the admissibility ratione loci of the application under art. 1 ECHR (obligation to respect human rights), which provides that ‘[t]he High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention’.

The applicants maintained that the impugned acts of bombing a territory and killing people ipso facto brought them and their deceased relatives within the jurisdiction of the respondent states. The respondent states contended that the application was incompatible with art. 1 ECHR, because the applicants and their deceased relatives did not come under their ‘jurisdiction’, as the relevant facts occurred within a state, Yugoslavia, not party to the ECHR. They denied having exercised control of the airspace over Belgrade and, in any event, disputed that any such control could be equated with the exercise of effective control or legal authority that is required by art. 1 ECHR.

The main and the only question addressed by the Court in the decision related to the so-called extra-territorial application of the ECHR in the light of the specific circumstances of the case. Having found that it lacked jurisdiction, the Court did not address the issue of whether the impugned acts were attributable to the NATO member states or rather to NATO itself.

III. Excerpts

The Court reached the conclusion that the applicants and their deceased relatives were not capable of coming within the jurisdiction of the respondent states on account of the extra-territorial act in question.^[2]

According to the Court, from the standpoint of public international law, the jurisdictional competence of a state is primarily territorial. Extra-territorial jurisdiction, while not altogether excluded, remains exceptional:

The Court is of the view [...] that Article 1 of the Convention must be considered to reflect this ordinary and essentially territorial notion of jurisdiction, other bases of jurisdiction being exceptional and requiring special justification in the particular circumstances of each case.^[3]

The Court found ‘clear confirmation of this essentially territorial notion of jurisdiction’ in the travauxpreparatoires of the ECHR, since in the drafting of art. 1 the words ‘all persons residing within their territories’ were replaced with a reference to persons ‘within their jurisdiction’. This was done ‘with a view to expanding the Convention application to others who may not reside, in a legal sense, but who are, nevertheless, on the territory of the Contracting Parties’.⁴ In the Court’s view,

the case-law of the Court demonstrates that its recognition of the exercise of extraterritorial jurisdiction by a Contracting State is exceptional: it has done so when the respondent State, through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the Government of that territory, exercises all or some of the public powers normally to be exercised by that Government.⁵

Although the text of the decision is not fully clear, it seems that the Court found that the notion of ‘jurisdiction’ followed by the applicant was at the same time too extensive, insofar as it could be confused with the notion of victim of a violation of rights granted by the ECHR, and too fragmentary, insofar as it could be tailored to the commission and consequences of a particular act (air bombing, in the specific case):

They [= the applicants] claim that the positive obligation under Article 1 extends to securing the Convention rights in a manner proportionate to the level of control exercised in any given extra-territorial situation. The Governments contend that this amounts to a ‘cause-and-effect’ notion of jurisdiction not contemplated by or appropriate to Article 1 of the Convention. The Court considers that the applicants’ submission is tantamount to arguing that anyone adversely affected by an act imputable to a Contracting State, wherever in the world that act may have been committed or its consequences felt, is thereby brought within the jurisdiction of that State for the purpose of Article 1 of the Convention.

The Court is inclined to agree with the Governments’ submission that the text of Article 1 does not accommodate such an approach to ‘jurisdiction’. Admittedly, the applicants accept that jurisdiction, and any consequent State Convention responsibility, would be limited in the circumstances to the commission and consequences of that particular act. However, the Court is of the view that the wording of Article 1 does not provide any support for the applicants’ suggestion that the positive obligation in Article 1 to secure ‘the rights and freedoms defined in Section I of this Convention’ can be divided and tailored in accordance with the particular circumstances of the extra-territorial act in question and it considers its view in this respect supported by the text of Article 19 of the Convention. Indeed the applicants’ approach does not explain the application of the words ‘within their jurisdiction’ in Article 1 and it even goes so far as to render those words superfluous and devoid of any purpose. Had the drafters of the Convention wished to ensure jurisdiction as extensive as that

• 4 Ibid, para. 63.
• 5 Ibid, para. 71.

advocated by the applicants, they could have adopted a text the same as or similar to the contemporaneous Articles 1 of the four Geneva Conventions of 1949 [...].

Furthermore, the applicants’ notion of jurisdiction equates the determination of whether an individual falls within the jurisdiction of a Contracting State with the question of whether that person can be considered to be a victim of a violation of rights guaranteed by the Convention. These are separate and distinct admissibility conditions, each of which has to be satisfied in the afore-mentioned order, before an individual can invoke the Convention provisions against a Contracting State.^[4]

The Court did not find it necessary to pronounce on the meaning of similar jurisdiction provisions included in other human rights instruments^[5] and, while admitting the existence of a gap in human rights protection, concluded that the ECHR, as an instrument having an essentially regional vocation within the ‘European public order’, was not designed to be applied throughout the world:

The Court’s obligation, in this respect, is to have regard to the special character of the Convention as a constitutional instrument of European public order for the protection of individual human beings and its role [...] is to ensure the observance of the engagements undertaken by the Contracting Parties. It is therefore difficult to contend that a failure to accept the extraterritorial jurisdiction of the respondent States would fall foul of the Convention’s ordre public objective, which itself underlines the essentially regional vocation of the Convention system [...]. In short, the Convention is a multi-lateral treaty operating [...] in an essentially regional context and notably in the legal space (espace juridique) of the Contracting States. The FRY clearly does not fall within this legal space. The Convention was not designed to be applied throughout the world, even in respect of the conduct of Contracting States. Accordingly, the desirability of avoiding a gap or vacuum in human rights’ protection has so far been relied on by the Court in favour of establishing jurisdiction only when the territory in question was one that, but for the specific circumstances, would normally be covered by the Convention.⁸

IV. Commentary

It is astonishing how such a questionable decision was rendered by the Court unanimously. The Court started with a wrong interpretation of the word ‘jurisdiction’ used in art. 1 ECHR. The preparatory works of the ECHR show that the states involved considered it too restrictive to grant human rights only to ‘all persons residing within their territories’ and agreed to enlarge the application of the future convention to all those ‘within their jurisdiction’. This surely means that the application of the ECHR was extended also to anyone who occasionally is found in the territory of the parties, without being a resident therein. But this does not mean that the word ‘jurisdiction’ can be equated with the word ‘territory’, as the Court wrongly inferred from the preparatory works. ‘Jurisdiction’, whatever is its meaning (and the word in itself is far from being clear), is something different from territory.

It may be true that in international law the notion of ‘jurisdiction’ is often territorial. But this is not the case of human rights treaties. They do not belong to traditional international law, which regulates the relationship between sovereign states that have established themselves in a given territory. Human rights treaties regulate the completely different relationship between state agents and one or more individuals. Their provisions must be interpreted in the light of the object and purpose of this category of treaties, as required by art. 31, para. 1, of the 1969 Vienna Convention on the Law of Treaties. Because human rights treaties aim at regulating the acts of state agents, they apply everywhere such agents happen to act in a way that could affect individuals. The notion of territory has no role to play in cases where human rights are at stake. The ‘jurisdiction’ of a state is dependent on an act done by its agent and not on the place where the act is done. If the agents of State party A torture an individual within the territory of State B without the knowledge of the latter, the ECHR applies to State A and not to State B, because the individual is within the jurisdiction of State A. The place where the act occurred and whether or not State B is a party to the ECHR have no relevance on the question of ‘jurisdiction’. As far as human rights are concerned, a person is under the jurisdiction of a state if he or she is subject to the authority and control of its agents. To be precise, such ‘jurisdiction’ is neither territorial, nor extra-territorial. It is authority and control irrespective of territory.

In the Bankovic decision a court specifically established for the protection of human rights was not able to read a human rights treaty according to its very nature. It preferred too restrictive an interpretation which is in itself contrary to the object and purpose of this category of treaty, that is to protect the weaker party in the relationship between a state and an individual. If the Court had given a more extended look to other human rights bodies—but it chose not to do so—it would have found, for instance, that the Inter-American Commission of Human Rights made the following clear remarks in the report of 29 September 1999 on the case Coard and others v United States:

Given that individual rights inhere simply by virtue of a person’s humanity, each American State is obliged to uphold the protected rights of any person subject to its jurisdiction. While this most commonly refers to persons within a state’s territory, it may, under given circumstances, refer to conduct with an extraterritorial locus where the person concerned is present in the territory of one state, but subject to the control of another state—usually through the acts of the latter’s agents abroad. In principle, the inquiry turns not on the presumed victim’s nationality or presence within a particular geographic area, but on whether, under the specific circumstances, the State observed the rights of a person subject to its authority and control.^[6]

The principle that human rights treaties apply to every person who is ‘within the power and effective control’ of a state party was confirmed, as regards the 1966 Covenant on Civil and Political Rights.^{[7] [8] [9]}

The nature itself of human rights dictates the very conclusions that were so bluntly rejected by the Court, namely that anyone adversely affected by an act imputable to a state party to the ECHR, wherever in the world that act may have been committed, be thereby brought within the jurisdiction of that state for the purpose of art. 1 ECHR and that the notion of jurisdiction be equated with the notion of (assumed) victim of a violation of rights guaranteed by the ECHR. Human rights obligations are due by states to human beings in general.

Having assumed in the Bankovic decision that only in exceptional cases acts performed by parties outside their territories constitute an exercise of jurisdiction, the Court was bound to find a somehow logical threshold between what could be considered an exceptional case and what could not. This exercise proved to be quite a difficult one.

The Court could not disregard its previous judgment of 23 March 1995 in the case of Loizidou v Turkey (preliminary objections), where it held that the acts committed by Turkey in the occupied territory of northern Cyprus fell under the ‘jurisdiction’ of Turkey under art. 1 ECHR. In that case, the Court clearly stated that the ECHR has an extra-territorial application, without envisaging any exceptions:

[A]lthough Article 1 sets limits on the reach of the Convention, the concept of ‘jurisdiction’ under this provision is not restricted to the national territory of the High Contracting Parties. [...] the responsibility of Contracting Parties can be involved because of acts of their authorities, whether performed within or outside national boundaries, which produce effects outside their own territory [...]. Bearing in mind the object and purpose of the Convention, the responsibility of a Contracting Party may also arise when as a consequence of military action—whether lawful or unlawful—it exercises effective control of an area outside its national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention derives from the fact of such control whether it be exercised directly, through its armed forces, or through a subordinate local administration."

In explaining the Bankovic decision, the Court found a difference between the Loizidou and the Bankovic cases in the fact that, in the former, the respondent state exercised ‘effective control of the relevant territory [of Cyprus] and its inhabitants abroad as a consequence of military occupation?² However, contrary to the belief of the Court, the fact that, in the case of air bombing, the authority and control exercised by the agents of a state over individuals in another state is restricted to one type of action and does not correspond to an almost complete exercise of state authority, as it happens in the case of territorial occupation has no particular relevance. Where is it written that a violation of the ECHR exists only if the responsible state is in principle capable of violating in a given territory all the rights granted by this Convention? It is obvious that the crew of a bombing aircraft cannot violate all the range of rights granted by the ECHR (for example, they cannot arbitrarily arrest people in violation of art. 5 ECHR). But what they can do, in particular to kill and massacre people and to devastate and disrupt public and private properties, is enough (better: much more than enough) to be considered as an exercise of effective authority and control by the bombing state.¹³

The Court also remarked that, unlike Yugoslavia, Cyprus was a party to the ECHR, with the consequence that, if the application in the Loizidou case had been held inadmissible, ‘the inhabitants of northern Cyprus would have found themselves excluded from the benefits of the Convention safeguards and system which they had previously enjoyed, by Turkey’s “effective control” of the territory and by the accompanying inability of the Cypriot Government, as a Contracting State, to fulfil the obligations it had undertaken under the Convention?⁴ This situation, according to the Court was ‘entirely different’ from what happened in the Bankovic case, where Yugoslavia was not a party to the ECHR. However, it is difficult to accept the double standard established by the Court between the alleged victims of human rights violations committed by states parties to the ECHR, depending on where an act is committed. If the ECHR is the expression of a ‘European public order for the protection of individual human beings’,1⁵ it should be so because it imposes its provisions to all acts wherever performed by the agents of the European states parties and not because it would condone such acts when committed in the territory of non-party states.

Without explicitly recognizing it, the Court itself was led to contradict in subsequent cases the untenable assumption that the ECHR would apply only to territories ‘that, but for the specific circumstances, would normally be covered by the Convention?⁶ For instance, it did so in the decision of 30 June 2009 on the admissibility on the application Al-Saadoon and Mufdhi v United Kingdom and in the judgment of 7 July 2011 in the case Al-Skeini and others v United Kingdom, where it affirmed the ‘jurisdiction’ of the respondent state for acts committed in Iraq.

Having found its lack of jurisdiction ratione loci, the Court did not enter into the question of jurisdiction ratione personae, that is whether the impugned action was attributable to NATO rather than to its seventeen member states against which the application was brought. In the subsequent decision of 2 May 2007 on the admissibility of the cases A. Behrami and B. Behrami v France and R. Saramati v France, Germany, and Norway, the Court found that the impugned action and inaction were attributable to an international organization (the UN) that retained ultimate authority and control over its member states engaged in the KFOR (Kosovo Force)

‘3 In the judgment of 29 March 2010 in the Medvedyev v France case, the Court tried to justify the Bankovic decision by assuming that the notion of effective control of area outside the national territory ‘excluded situations [...] where—as in the Bankovic case—what was at issue was an instantaneous extraterritorial act, as the provisions of Article 1 did not admit of a “cause-and-effect” notion of “jurisdiction”’ (para. 64). The Court did not however explain why an ‘instantaneous’ act such as air bombing, which can have permanent and disruptive consequences on human life and properties, is not a manifestation of effective control of a given area.

‘4 Cf. Bankovic case (n. 1), para. 80. ‘5 Ibid. ‘6 Ibid.

and UNMIK (United Nations Interim Administration Mission in Kosovo) activities, so that operational command only was delegated.¹⁷ Accordingly, the Court declared the applicants’ complaints incompatible ratione personae with the provisions of the Convention.^ Given the unclear command chain, it is highly uncertain what result the criterion of ultimate authority and control would have produced, if applied to the 1999 NATO military intervention in Yugoslavia.

More generally, the bombing of Yugoslavia by the aircraft of a number of NATO member states was done without any authorization by the Security Council and therefore constitutes a violation of the UN Charter. It is also a violation of the NATO Treaty itself/⁹ However, not only the ECtHR, but also the International Court of Justice (in the judgment of 15 December 2004 on the Legality of Use of Force, preliminary objections, where it found the lack of jurisdiction to entertain the claims made by Yugoslavia against Canada, France, Germany, Italy, Netherlands, Portugal, Spain, United Kingdom, and the United States) and the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia (who followed the recommendation made on 8 June 2008 by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia that no investigation be commenced in relation to such a campaign) for different reasons were not able to entertain the merits of cases relating to the bombing of Yugoslavia.

In its too legalistic and basically wrong approach to the Bankovic case, the ECtHR did not devote any attention to the victims of the bombing of the television and radio station in Belgrade. However, it is worthwhile to recall the relevant facts:

On 23 April 1999, at 0220, NATO intentionally bombed the central studio of the RTS (state-owned) broadcasting corporation at 1 Aberdareva Street in the centre of Belgrade. The missiles hit the entrance area, which caved in at the place where the Aberdareva Street building was connected to the Takovska Street building. While there is some doubt over exact casualty figures, between 10 and 17 people are estimated to have been killed.

The bombing of the TV studio was part of a planned attack aimed at disrupting and degrading the C3 (Command, Control and Communications) network. In coordinated attacks, on the same night, radio relay buildings and towers were hit along with electrical power transformer stations. At a press conference on 27 April 1999, NATO officials justified this attack in terms of the dual military and civilian use to which the FRY communication system was routinely put [,..].²⁰

!7 Cf. Behrami v France, 45 EHRR SE10, paras 133 and 144. ^ Ibid., para. 152.

!9 ‘This Treaty does not affect, and shall not be interpreted as affecting in any way the rights and obligations under the Charter of the Parties which are members of the United Nations, or the primary responsibility of the Security Council for the maintenance of international peace and security’ (art. 7).

20 Paragraphs 71 and 72 of the Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign against the Federal Republic of Yugoslavia. More generally, ‘during the bombing campaign, NATO aircraft flew 38,400 sorties, including 10,484 strike sorties. During these sorties, 23,614 air munitions were released (figures from NATO). As indicated in the preceding paragraph, it appears that approximately 500 civilians were killed during the campaign. These figures do not indicate

The legality of such a bombing is highly questionable:²¹

More controversially, however, the bombing was also justified on the basis of the propaganda purpose to which it was employed [...] In a statement of 8 April 1999, NATO also indicated that the TV studios would be targeted unless they broadcast 6 hours per day of Western media reports: ‘If President Milosevic would provide equal time for Western news broadcasts in its programmes without censorship 3 hours a day between noon and 1800 and 3 hours a day between 1800 and midnight, then his TV could be an acceptable instrument of public information’.

NATO intentionally bombed the Radio and TV station and the persons killed or injured were civilians. The questions are: was the station a legitimate military objective and; if it was, were the civilian casualties disproportionate to the military advantage gained by the attack?22

None of the international courts to which the case was presented will ever say a word on whether the civilians who died in the collapse of the radio and television station in Belgrade were legitimately killed. It appears that the states that are so able in air bombing are much less eager to agree that the effects of their bombing campaigns be discussed before an international court. Yet the name of the last bomb launched on the victims in Belgrade is ‘jurisdiction’.

that NATO may have conducted a campaign aimed at causing substantial civilian casualties either directly or incidentally’ (ibid., para. 54).

• 21 NATO’s co-operation with the Prosecutor was also questionable: ‘The committee has conducted its review relying essentially upon public documents, including statements made by NATO and NATO countries at press conferences and public documents produced by the FRY. It has tended to assume that the NATO and NATO countries’ press statements are generally reliable and that explanations have been honestly given. The committee must note, however, that when the OTP [Office of Tribunal Prosecutor] requested NATO to answer specific questions about specific incidents, the NATO reply was couched in general terms and failed to address the specific incidents’ (ibid., para. 90).
• 22 Ibid., paras 74 and 75.

• [1] Bankovic and others v Belgium and others, Admissibility, App. No. 52207/99, ECHR 2001-XII. SeeHappold, ‘Bankovic v Belgium and the Territorial Scope of the European Convention on Human Rights’,(2003) Human Rights Law Review 77; Altiparmark, ‘Bankovic: An Obstacle to the Application of theEuropean Convention on Human Rights in Iraq?’, (2004) Journal of Conflict Security Law 213; and, moregenerally, Milanovic, Extraterritorial Application of Human Rights Treaties (Oxford, Oxford UniversityPress 2011).
• [2] Cf. Bankovic case (n. 1), para. 82.
• [3] Ibid, para. 61.
• [4] Cf. Bankovic case (n.1), para.75. Under Art. 1 of the four 1949 Geneva Conventions on the protectionof war victims, the parties undertake ‘to respect and to ensure respect for the present Convention in allcircumstances’.
• [5] Cf. Bankovic case (n. 1), para.78. 8 Ibid, para. 80.
• [6] Bankovic case (n. 1), para. 37.
• [7] Cf. Human Rights Committee General Comment No. 31 of 29 March 2004 para. 10.
• [8] Loizidou v Turkey, Admissibility, App No 15318/89, Case No 40/1993/435/514, A/310, [1995] ECHR10, para. 62.
• [9] Cf. Bankovic case (n. 1), para. 4 quoting Loizidou v Turkey (n. 10), para. 71.