ECtHR decision as to the admissibility of 02.05.2007, Behrami and Behrami v. France, 71412/01 – Saramati v. France, Germany and Norway, 78166/01 – Collective Security and human rights – Responsibility for human rights violations by peace-keeping operations forces

Abstract

The extraterritorial dimension of the jurisdiction of the European Court of Human Rights opens the debate on the possible application of the European Convention on Human Rights to the facts of the Behrami and Saramati, cases, which occurred in Kosovo during the presence of the international forces —civil and security— authorised by The United Nations Security Council. From our point of view, the reasoning chosen by the Court to justify its declaration of inadmissibility was not entirely correct. Many doubts hover over this subject: Is it appropriate to apply the ECHR in cases where the party States exercise their jurisdiction extraterritorially under the responsibility of another international subject? If the responsible subject is the UN, could the sued States be exempted from responsibility because the responsible subject has a system for protecting human rights similar to the ECHR’s? ¿Should they, however, answer for the violations of the ECHR if the responsible subject were NATO, which does not have such a protection system? Should the United Nations be solely responsible, or should the UN’s responsibility be concurrent with NATO’s, since NATO is the responsible subject for KFOR? We reflect on these questions in this commentary