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50 Mil. L. & L. War Rev. 315 (2011)
The European Court of Human Rights' Al-Jedda and Al-Skeini Judgments: An Introduction and Some Reflections

handle is hein.journals/mllwr50 and id is 315 raw text is: MILITARYLAVANDTHELAW OF NWARREVfEW 50/3-4 (2011) The European Court of Human Rights' AI-Jedda and Al-Skeini Judgments: an Introduction and Some Reflections Dr. FREDERIK NAERT Director lilitary Law and the Law of War Review* On 7 July 2011, the European Court of Human Rights (Grand Chamber) issued two judgments in cases brought against the UK with regard to the conduct of its forces in Iraq: Al-Jeddav. UK(Application No. 27021/08) and Ai-Skeini. UK (Application No. 55721/07). Thejudgments address several issues that are of key importance for the applicability and relevance of the European Convention on Human Rights (ECHR) to/ for military operations abroad and for the implications of the ECHR for such operations when it does apply, as well as the relationship between the ECHR on the one hand, and UN Security Council resolutions and international humanitarian law on the other hand. Al-Jedda concerns detention by UK forces in Iraq after the occupation phase and gave rise to two main questions: (i) was the conduct of these forces attributable to the UK or to the UN?; and (ii) did UN Security Council Resolution 1546 (8 June 2004) justify/permit detention in circumstances not covered by Article 5 ECHR (on deprivation of liberty) and therefore displace, qualify, or derogate from, this ECHR provision? The judgment also touches upon the relationship between the ECHR and international humanitarian law. The Court decided that the conduct was attributable to the UK; that Resolution 1546 did not explicitly impose measures violating Article 5 ECHR; and that the latter fully applied. It concluded that the UK had breached Article 5 ECHR. Ai-Skeini concerns the death of six Iraqis during the period of British occupation: five as a result of shootings and one in detention. The main questions in this case were (i) the scope of extraterritorial application of the ECHR; and (ii) the scope and extent of the duty to investigate possible breaches ofArticle 2 ECHR (the right to life) as a consequence * Member of the Legal Service of the Council of the EU and affiliated senior researcher at the KU Leuven. The views expressed are solely my own and do not bind the Council or its Legal Service. 315

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