Freeing Soering: the ECHR, state complicity in torture, and jurisdiction

Over the last 10 years, there have been numerous cases of ECHR-state party complicity in torture carried out by foreign states. Some of these cases have been entirely extraterritorial – that is, the victim was never within the territory of the complicit state. Applying the orthodox rules of attribution in international law and the current understanding of jurisdiction under Article 1 of the ECHR, these cases of extraterritorial complicity appear not to lead to the responsibility of the complicit state under the Convention. This is an unprincipled gap in the protections provided by the Convention. This article argues (i) that this unprincipled gap may be overcome by re-imagining the rule in Soering as a preventive complicity rule and extending it to other forms of complicity in torture and (ii) that such a re-imagination is supported by principles deeply embedded in the case law of the European Court of Human Rights. For these reasons, an expansive interpretation of Article 1 of the ECHR to capture cases of state complicity in extraterritorial torture would be justified.