Dialogues on Law and Humanities in the United States and Europe
Chapter 10: Conclusion
There are times, Professor Mark Gibney remarked to me recently, when he wonders whether what the European Court of Human Rights does is really human rights. Instead, what it seems to be doing is a Europeanized version of international law – and these two cannot truly be equated. This could most clearly be seen, he went on, in the Court’s Bancovic decision from 2001, which suggested that there are limits to Europe’s love affair with human rights.1 In his book, International Human Rights Law: Returning to Universal Principles (2008), Gibney offers a detailed analysis of Bancovic v. Belgium.2 The case was brought by six citizens of the Federal Republic of Yugoslavia and concerned a NATO bombing mission during the Kosovo crisis in April 1999. Sixteen people were killed and another sixteen were seriously injured. The citizens bringing the case, who were either family members of the deceased or had themselves been injured, complained that the NATO bombing violated not only Article 2 (right to life), but also Article 10 of the European Convention on Human Rights (freedom of expression). The Court dismissed the case because the claimants were not within the jurisdiction of any of the European states, Yugoslavia not itself being a state party to the European Convention and the Convention not being designed for application throughout the world, even when the conduct of the member states was at stake. As Gibney sees it, a ‘true’ human rights court would have heard this case. European states were being accused of...
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