CREEPING JURISDICTION OF THE EUROPEAN COURT OF HUMAN RIGHTS: THE BANKOVIC CASE VS THE LOIZIDOU CASE

Abstract

May the European Court of Human Rights ‘the Court’ review the legality of acts or omissions of military forces of a state party to the European Convention on Human Rights ‘the Convention’ , which have been committed outside its territory, in light of the Convention’s terms? The answer to this question is in the first instance dependent upon whether the Convention has given such competence to the Court. Prior to its decision in the recent Bankovic Case,1 the European Commission of Human Rights ‘the Commission’ and the Court had exercised competence in a series of cases that originated from acts the state parties concerned had committed either outside their territories or committed on their territories but that had produced effects outside their territories.2 For example, in the Cyprus Cases3 and the Loizidou Case4 the Commission and the Court found themselves competent to examine individual and inter-state applications against Turkey, in which it was alleged that the members of the Turkish armed forces in Cyprus had violated certain provisions of the Convention. After deciding that the Turkish forces were actually in control of Northern Cyprus, both Commission and the Court jumped, in their opinion and judgement respectively, to the conclusion that, through such control of the area in question, Turkey had in fact brought within its jurisdiction persons and property found or situated in the area in question.5 The Court also found itself competent to hear a case brought by several Iraqi citizens against Turkey alleging that during a 1995 military operation in Northern Iraq Turkish forces violated various provisions of the Convention