Das Al-Skeini-Urteil des Europäischen Gerichtshofs für Menschenrechte – eine Abkehr von Banković?

On 7.7.2011 the European Court of Human Rights delivered its Grand Chamber judgement in Al-Skeini-case. Ten years after the Banković-decision, the Court had the possibility to deal again with the issue of extraterritorial application of the Convention and to clarify the concept of jurisdiction within the meaning of Article 1 ECHR. The applicants were close relatives of six Iraqi nationals who were killed 2003 during security operations carried out by UK soldiers in Basra in Iraq. The ECHR confirmed unanimously that the UK had jurisdiction under Article 1 ECHR in respect of civilians killed. The court held that the jurisdiction is primarily territorial and reaffirmed two exceptions to this principle. It referred to the »state agent authority and control« and to the »effective control over an area«, exceptions which were already formulated in the Banković-decision. In the current case the Court's approach was however quite different. As a result, the Court applied the redefined personal exception. The Court rejected its restrictive approach adopted in Banković-decision and held that the Convention rights can be »divided and tailored«. Consequently, the state is obliged to secure only the rights that are relevant to the situation of the individual. The Court also confirmed that the extent of the relevant right is to be adapted to the extraterritorial situation. In particular, the practical problems faced by the State Party in the foreign territory should be taken into account. The Court emphasised that the Convention can apply to extraterritorial acts of States Parties, even if they occur outside European »ordre public«. The Court did not overrule the Banković-decision but it seems that it is strongly moving away from its previous reasoning. There are still some questions to answer but the judgement is to be appreciated from the human right point of view.