Strasbourg judge: “Those who export war ought to see to the parallel export of guarantees against the atrocities of war”

7 July 2011 by Adam Wagner

Updated | The legal blogs have been busy reporting on this morning’s important decisions of the Grand Chamber of the European Court of Human Rights in Al-Skeini and Al-Jedda – see my post.

There has been coverage already from PHD Studies in Human Rights, the Human Rights in Ireland Blog (update – see also EJIL: Talk: “Let me put this as strongly as I can: this is as close as we’ve ever come to the European Court overruling Bankovic. And good riddance – except, as we will see, the Court’s disavowal of Bankovic is only half-hearted at best.”). The Guardian has also published an article on the case in which Phil Shiner of Public Interest Lawyers claims that the decisions will reopen the case for a wider public inquiry into alleged detainee mistreatment in Iraq; the firm recently failed in a judicial review of a decision not to hold a public inquiry on behalf of 127 Iraqis.

Many thanks to Antoine Buyse of the ECHR Blog for highlighting the lyrical and eminently quotable concurring opinion of Maltese Judge Giovanni Bonello, who since writing the judgment has retired from the court. Bonello said that he would have applied a slightly different “functional jurisdiction” test to decide whether the applicants fell within the jurisdiction of the United Kingdom.

His parting shot (perhaps of his career) is of more interest, however. Under the heading “Human rights imperialism”, he confessed to being “quite unimpressed” by the pleadings of the United Kingdom Government to the effect that exporting the European Convention on Human Rights to Iraq would have amounted to “human rights imperialism”. For,

It ill behoves a State that imposed its military imperialism over another sovereign State without the frailest imprimatur from the international community, to resent the charge of having exported human rights imperialism to the vanquished enemy

He went on, in a poetic appeal to the exportability of human rights:

I would have respected better these virginal blushes of some statesmen had they worn them the other way round. Being bountiful with military imperialism but bashful of the stigma of human rights imperialism, sounds to me like not resisting sufficiently the urge to frequent the lower neighbourhoods of political inconstancy.

For his part, he believes that

those who export war ought to see to the parallel export of guarantees against the atrocities of war. And then, if necessary, bear with some fortitude the opprobrium of being labelled human rights imperialists.

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