The Element of Proximity in the Age of Remote Warfare: Rethinking ECHR Jurisdiction

In the past two decades, the European Court of Human Rights has struggled to determine when a killing caused in extraterritorial context reaches the necessary threshold to establish jurisdiction. Its case-law differs depending on the type of bombing or artillery used and from what distance a person was killed. Since Georgia v. Russia II, the Court has established ‘the element of proximity’, in which it acknowledges that the physical distance between the state agent and victim plays a role in establishing jurisdiction. This paper provides the first attempt to critically assess and conceptualize the element of proximity. We argue that the Court's understanding of proximity has the potential to exclude instances of killings in remote warfare through drones, autonomous weapon systems and cyber-attacks, even if they are conducted with precision. At the same time, remote killing takes place daily and remote warfare and cyber-attacks have become part and parcel of any warfare. To ensure that the Court keeps temporal proximity with technological advancements, we argue that the Court only needs to reflect on and apply how proximity in the age of remote warfare, precision in the age of biometrics, and state agent and control in the age of AI and robotics is exercised. Alternatively, the Court should drop the application of the element of proximity in warfare if it fails to provide a victim-centred approach by overly focusing on the technicalities of proximity between the victim and the perpetrator and the type of the tool used to cause the death or injury of the victim.