On American Drone Strikes And (Possible) European Responsibilities: Facing The Issue Of Jurisdiction For “Complicity” In Extraterritorial Targeted Killings

Abstract

States Party to the European Convention of Human Rights (ECHR) regularly provide third States with key aid or assistance in performing extraterritorial targeted killings through armed drones: by doing so, they can be said to engage in conduct amounting to “complicity” for the purposes of international law of State responsibility. Strictly speaking, however, ECHR provisions do not apply to such conduct, which cannot be included into existing models of “jurisdiction” as per Article 1 ECHR – namely, “spatial” and “personal”. This results in a troublesome legal vacuum. The present article proposes an appraisal of such conduct through the lenses of a third jurisdictional model, already acknowledged by other human rights systems but largely ignored (or even discarded) by the European Court of Human Rights: the so-called “impact” model, which covers extraterritorial effects of territorial conduct. It will be demonstrated that to a limited extent the ECHR case-law already resorts to such model, as in several cases jurisdiction is believed to arise when impugned events, albeit taking place extraterritorially, are the consequence of State’s conduct (thus through a “causation” test) or when third States’ conduct can somehow be attributed to a State Party (through an “attribution” test). Albeit implicitly, this is an endorsement of the “impact” model of jurisdiction. It is argued that the Court should fully recognize this third model, and consequently apply it to extraterritorial conduct amounting to “complicity” in order to ensure a principled scrutiny over States Party’s conduct.