Margins of conflict : the ECHR and transitions to and from armed conflict / edited by Antoine Buyse.
2011
KJC5132 .M373 2011 (Map It)
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Details
Title
Margins of conflict : the ECHR and transitions to and from armed conflict / edited by Antoine Buyse.
Published
Antwerp : Intersentia, [2011]
Distributed
Portland, OR : Distribution for the USA and Canada, International Specialized Book Services
Copyright
©2011
Call Number
KJC5132 .M373 2011
Parallel Title
European Convention on Human Rights and transitions to and from armed conflict
ISBN
9789400001572 (hbk.)
9400001576 (hbk.)
9400001576 (hbk.)
Description
xiii, 196 pages ; 25 cm.
System Control No.
(OCoLC)692270208
Note
Proceedings of a seminar held at Utrecht University in Oct. 2009 --P.v.
Bibliography, etc. Note
Includes bibliographical references.
Record Appears in
Gift
Purchased from the income of the Jaffe Fund
Added Author
Gift
The Arthur W. Diamond Law Library
Purchased from the income of the Jaffe Fund
Table of Contents
Preface
v
Human Rights without Peace? The European Court of Human Rights and Conflicts Between High Contracting Parties / Egbert Myjer
1
1.
War, never again. No peace without human rights
1
2.
Did this succeed?
2
3.
Execution of judgments
5
4.
No human rights without peace?
7
4.1.
How come it took 19 years before the case was finally decided?
9
4.2.
Could Turkey be held responsible for what had happened in Cyprus in 1974?
9
4.3.
Since Turkey is the respondent government, did the Turkish judge sit in the Grand Chamber?
11
4.4.
What were the typical legal issues in the Varnava and others case?
12
4.4.1.
Lack of legal interest?
12
4.4.2.
Admissibility ratione temporis?
13
4.4.3.
Six-month rule (Article 35 paragraph 1)
17
4.4.4.
Fact-finding: burden of proof and procedural obligations
22
4.4.5.
Can relatives of the missing persons be considered victims of a violation of Article 3?
27
4.4.6.
What is wisdom in cases like this as far as Articles 41 and 46 are concerned? No punitive damages imposed by the Court
28
5.
Other post-conflict cases and situations
30
6.
Interim measures: a paper tiger?
31
7.
Conclusion
32
Crisis Situations, Counter Terrorism and Derogation from the European Convention of Human Rights. A Threat Analysis / Jan-Peter Loof
35
1.
Introduction
35
1.1.
The subject of this contribution from a historical perspective
35
1.2.
Derogation of human rights in the post-9/11 era: what about the European supervision?
37
2.
History and content of the derogation clause
38
3.
The principle of exceptional threat
40
4.
The `normalcy-rule, emergency-exception' hypothesis and `entrenched emergencies'
42
5.
The level of scrutiny applied by the European Court and its ability to ascertain the existence of a `public emergency'
45
5.1.
A wide margin of appreciation
45
5.2.
Risks
46
5.3.
The case of A. and others v. the United Kingdom and the inherent limits to review of the actual existence of a public emergency
48
6.
Supervision of derogations: a `legal grey hole'?
51
7.
Filling the grey hole: the principle of proportionality and non-derogable rights
52
8.
Article 15 ECHR: a relatively small problem
55
Really Out of Sight? Issues of Jurisdiction and Control in Situations of Armed Conflict under the ECHR / Rick Lawson
57
1.
Introduction
57
2.
The basics of extra-territoriality: Article 1 ECHR and Loizidou
59
3.
Not designed to be applied throughout the world: Bankovic
61
4.
Moving beyond Bankovic: Ocalan/Al-Saadoon, Issa/Pad and Ilascu/Treska
63
4.1.
Ocalan: the confusion sets in
63
4.2.
Issa and Pad: outright rebellion against Bankovic
65
4.3.
Ilascu and Treska: a very generous approach
67
5.
Reading between the lines: Saddam Hussein
68
6.
Dying between the lines: Isaak and Andreou
69
7.
Outlook: Medvedyev and Al-Skeini
70
8.
Tertium non datur?
72
9.
Some tentative conclusions
75
The Use of Interim Measures Issued by the European Court of Human Rights in Times of War or Internal Conflict / Clara Burbano Herrera
77
1.
Introduction
77
2.
Procedural aspects of interim measures
79
2.1.
Introduction of a request: easy access
79
2.2.
Receiving evidence: flexible criteria and lower level of proof
81
2.3.
Accepted or rejected: promptness of response
84
3.
Substantial aspects of interim measures
85
4.
Application in times of conflict sensu stricto within the territory of Member States
87
4.1.
Application and effect within the territory of the Member States
87
4.1.1.
The United Kingdom in its crown colony: the death penalty
87
4.1.2.
Greece under the military junta: the death penalty
88
4.1.3.
Germany and the Rote Armee Fraktion: the preservation of evidence
89
4.1.4.
Turkey and the PKK, the DHKP-C and NGOs: the treatment of prisoners and the death penalty
90
4.1.5.
Russia and Chechnya: the death penalty, the treatment of prisoners and guaranteeing the right to application
93
4.1.6.
The Georgian-Russian conflict
97
4.1.7.
The Transdnjestrian conflict
98
4.2.
Application within and effect outside the territory of the Member States
99
4.2.1.
The Iraqi conflict
99
4.2.2.
The Sri Lankan conflict
102
4.2.3.
The Afghan conflict
104
4.2.4.
The Colombian drug war and the struggle against paramilitary forces
105
4.2.5.
The Algerian situation
106
4.2.6.
The Somalian conflict
107
4.2.7.
The Darfur conflict
108
4.2.8.
The United States and the struggle against terrorism
109
4.2.9.
Uzbekistan
110
4.2.10.
Peru
112
4.2.11.
Tunisia
113
4.2.12.
Jordan
114
5.
Application in post-conflict situations
115
5.1.
Application and effect within the territory of the Member States
115
5.1.1.
Post-Ceausescu Romania
115
5.1.2.
Post-conflict Bosnia-Herzegovina and Kosovo
116
5.2.
Application in and effect outside the territory of the Member States
117
5.2.1.
Post-Pinochet Chile
117
5.2.2.
Cameroon and ex-Yugoslavia
118
6.
Compliance: a clear tendency of States to comply with provisional measures in conflict-related situations, but
119
7.
Conclusions
124
Foretelling the future, facing the past. Hate speech and conflict situations under the ECHR / Marloes van Noorloos
131
1.
Introduction
131
2.
The role of hate speech and the media in conflict situations
132
2.1.
Setting limits to hate speech: rationales
132
2.2.
The `marketplace of ideas' in conflict
133
2.3.
Hate speech before conflict
134
3.
Article 10 ECHR and the European Court of Human Rights' case law
136
3.1.
General framework Article 10
136
3.2.
Extreme speech in the context of terrorism
137
3.2.1.
Legitimately restricted speech, context and consequences
138
3.2.2.
Violations of Article 10
141
3.2.3.
Leroy v. France: glorifying the WTC attacks
142
3.2.4.
Conclusion: restricting extreme speech
143
3.3.
`Traditional' hate speech
144
3.3.1.
Equality, `militant democracy' and Article 17 ECHR
144
3.3.2.
Racial and religious discrimination under Article 10
146
3.3.3.
Denial or justification of historical facts
149
4.
Conclusion
151
The Duty to Take Preventive Operational Measures. An Adequate Legal Tool to Hold States Responsible in Enforced Disappearance Cases? / Marthe Lot Vermeulen
153
1.
Introduction
153
2.
The doctrine of positive obligations
155
3.
The protection against enforced disappearances
157
4.
The scope and content of the duty to take preventive operational measures in enforced disappearance cases
160
4.1.
The general test for the obligation to take preventive operational measures
160
4.2.
Application of the test in enforced disappearance cases
161
5.
Discussion of the duty to take preventive operational measures in enforced disappearance cases
165
5.1.
The scope and content of the duty to take preventive operational measures
166
5.2.
The difference between a procedural and a substantive violation of Article 2 ECHR
166
5.3.
The role of the circumstances under which the enforced disappearance took place
169
5.4.
The relationship between preventive operational measures and the right to liberty
173
6.
Conclusion: is the protection offered by the duty to take preventive operational measures adequate?
173
Airborne or Bound to Crash? The Rise of Pilot Judgments and Their Appeal as a Tool to Deal with the Aftermath of Conflict / Antoine Buyse
175
1.
Introduction
175
2.
Pilot judgments: combining individual and general redress
176
3.
Underlying reasons for the creation of the pilot judgment procedure
185
4.
Challenges for the pilot procedure
188
5.
Possible use in post-conflict situations
192
6.
Conclusion
195