As bad as it gets: the European Court of Human Rights’ Behrami and Saramati decision and general international law

Milanović, M. ORCID: https://orcid.org/0000-0003-3880-6096 and Papić, T. (2009) As bad as it gets: the European Court of Human Rights’ Behrami and Saramati decision and general international law. International and Comparative Law Quarterly, 58 (2). pp. 267-296. ISSN 1471-6895 doi: 10.1017/S002058930900102X

Abstract/Summary

This article examines the European Court of Human Rights's encounter with general international law in its Behrami and Saramati admissibility decision, where it held that the actions of the armed forces of States acting pursuant to UN Security Council authorizations are attributable not to the States themselves, but to the United Nations. The article will try to demonstrate that the Court's analysis is entirely at odds with the established rules of responsibility in international law, and is equally dubious as a matter of policy. Indeed, the article will show that the Court's decision can be only be explained by its reluctance to decide on questions of State jurisdiction and norm conflict, the latter issue becoming the clearest when Behrami is compared to the Al-Jedda judgment of the House of Lords.