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Home Human Rights Archive for category "Extraterritorial Application"

OHCHR Publishes Report on Surveillance and Privacy in the Digital Age

Published on July 18, 2014        Author: 

Readers will recall that in its resolution on the right to privacy in the digital age the UN General Assembly had requested the Office of the High Commissioner for Human Rights to prepare a report for the next GA session on the various issues raised by mass electronic surveillance and the human right to privacy (see here for our previous coverage). An advance edited version of that report (A/HRC/27/37) is now available here. The report is rich, thoughtful and very much pro-privacy in the surveillance context, albeit not in a blind, fundamentalist way. It reaffirms that the right to privacy, as set out in Article 17 ICCPR or Article 8 ECHR, provides a framework within which the legality of surveillance measures needs to be assessed. While it acknowledges the legitimate governmental interests that surveillance may serve, it finds the existing institutional and legal arrangements in many states wanting and in need of further study and reform. Here are some of the highlights:

- It is important to consider linkages with other possible human rights violations, e.g. the collection of intelligence through surveillance that is later used for an unlawful targeted killing (para. 14).

- Interferences with the privacy of electronic communication cannot be justified by reference to some supposedly voluntary surrender of privacy on the Internet by individual users (para. 18).

- Collection of communications metadata can be just as bad in terms of privacy interference as the collection of the content of the communication (para. 19).

- Because of the chilling effect of surveillance: ‘The very existence of a mass surveillance programme thus creates an interference with privacy.’ (para. 20).

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Gray v. Germany and the Extraterritorial Positive Obligation to Investigate

Published on May 28, 2014        Author: 

Last week a chamber of the European Court of Human Rights decided Gray v. Germany, no. 49278/09. The applicants were the sons of a British man who died in the UK after a doctor gave him the wrong drugs on a house visit. The doctor was German, and was hired by the UK National Health Service to provide out-of-hours home service to NHS patients. The doctor returned to Germany after the applicants’ father’s death. After a criminal malpractice investigation was conducted in the UK, Germany refused to extradite the doctor on the basis that criminal proceedings would ex officio take place in Germany. Those proceedings were later summarily completed, with the doctor sentenced to a fine, without notifying the applicants that the case would be disposed of summarily. The applicants claimed that this violated the procedural limb of Article 2 ECHR, read jointly with the overarching Article 1 obligation to secure human rights.

For various reasons, the Court rejected the applicants’ claim on the merits. But what makes this case interesting is that neither the German government, nor the Court sua sponte, thought that there was any Article 1 jurisdiction issue in saying that Germany had the positive obligation to investigate an unintentional death that took place in the United Kingdom, and at that at the hands of a private individual. Look at just how broad this position is – broader, indeed, than what I have argued for, since in my view a positive obligation would only apply if the death took place in an area controlled by the state or with state involvement.

Again, neither the Court nor the German government apparently thought that any Article 1 problem arose, presumably because the doctor was on German territory even though the applicant’s father had been in the UK. This well shows how in the small, politically unimportant cases people just tend to follow the universalist impulse and are oblivious to the existence of threshold applicability problems. Note, however, that the Court must ex officio confirm that the Convention applies and accordingly mind that it has subject-matter jurisdiction. If the issue was raised perhaps the Court would have decided it differently, but even so the case stands for the proposition that ECHR states parties have the duty to investigate even accidental deaths that took place outside any area under their control if the alleged perpetrator is located in such an area.

Stated in these terms, the implications of such an expansive approach are I think clear. Remember Alexander Litvinenko’s assassination in London, ostensibly at the hands of Russian agents? His family took a case against Russia to Strasbourg, which (I’ve been told) is on standby while issues around possible inquiry proceedings are being resolved in the UK. Suddenly that case becomes much easier for the applicants – regardless of whether the radioactive poison was administered by a Russian agent, if the alleged perpetrator is in Russia then Russia would have an Article 2 obligation to investigate. Similarly, if say a British tourist killed somebody in Thailand but then managed to escape back to the UK, the family of the deceased person in Thailand would have Article 2 rights vis-à-vis the UK and the UK would have to investigate the death, at least if it refused extradition. And this approach would a fortiori apply to cases where there is state involvement, e.g. when a soldier kills a civilian in an area not under the state’s effective control, but later returns to the state’s own territory.

In short, the Court seems to have actually created a comprehensive aut dedere, aut judicare principle under the ECHR, that applies even to unintentional taking of life, and probably did so unwittingly. Obviously we’ll have to wait and see whether Gray will have such an impact, or whether the Court will somehow manage to reverse course.

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Does IHL Provide a Legal Basis for Detention in Non-International Armed Conflicts?

Published on May 7, 2014        Author: 

In their excellent posts on Serdar Mohammed v. Ministry of Defence [2014] EWHC 1369 (QB), both Kubo Mačák and Marko recognise the importance and hugely impressive analysis of Mr Justice Leggatt’s judgment. We will not reiterate the coverage of the judgment. Rather, we wish to focus on one part of it, that is, the question of whether international humanitarian law (IHL) provides a legal basis for detention in non-international armed conflicts (NIACs). Whilst Kubo also focuses on this issue in his post, we will take the opposite view to him, and thus will argue that Mr Justice Leggatt correctly concluded that IHL does not contain a legal basis to detain in NIACs. To be clear, our argument is not that detention in NIACs is necessarily unlawful. The argument is simply that authorization to detain in a NIAC cannot be found in IHL, but must rest elsewhere, principally in domestic law (either of the state that detains or of the state on whose territory the detention occurs). Exceptionally, the authorization to detain may arise out of other branches of international law, in particular, it may be contained in United Nations Security Council resolutions authorizing the use of force.

It is worth spending a few moments considering why we are even asking the question whether IHL contains a legal basis for detention in NIACs. In the particular context of the Sedar Mohammed case – and other detention in armed conflict cases brought under the European human rights system – the question is relevant in considering whether Art 5 ECHR might be regarded as inapplicable in NIACs by virtue of the argument that more specific rules of IHL apply to regulate those detentions. More generally, international human rights law (IHRL) requires that any deprivation of liberty be both lawful and non-arbitrary and in the context of NIACs, it is natural to ask first whether the legal basis might be found in IHL, as it can for international armed conflicts (Arts 27(4), 42-3 and 78 GCIV; Art 21 GCIII).

In the Serdar Mohammed case, Mr Justice Leggatt provided a number of reasons for rejecting the MoD’s contention that IHL provides a sufficient legal basis for detention in the context of NIACs. We will address the key ones here. First, he considered that such a legal basis would have been made explicit in the relevant treaty provisions (common Article 3 and Additional Protocol II) had that been intended. This is a reasonable point – coercive powers should not too readily be read into applicable treaty rules without clear evidence that this is the collective intentions of the states parties. Read the rest of this entry…

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High Court Rules that the UK Lacks IHL Detention Authority in Afghanistan

Published on May 3, 2014        Author: 

Yesterday the High Court of England and Wales, per Mr Justice Leggatt, delivered a comprehensive judgment in Serdar Mohammed v. Ministry of Defence [2014] EWHC 1369 (QB), holding that the United Kingdom lacks detention authority under international humanitarian law/law of armed conflict with regard to individuals it captures in the course of the non-international armed conflict in Afghanistan, and that any detention of such individuals longer than 96 hours violates Article 5 ECHR, as well as relevant Afghan law. The judgment is on any account a heroic effort, with the single judge grappling with a host of complex, intertwined issues of international law and acquitting himself admirably in the process. Para. 6 contains a summary of the judgment for those who don’t want to read the whole thing.

Here are some of the highlights of the Court’s analysis:

(1) The ECHR applies extraterritorially to any person detained by the UK in Afghanistan.

(2) Derogations under Article 15 ECHR could also be used in an extraterritorial context.

(3) The detention of SM by UK forces in Afghanistan was attributable to the United Kingdom, and not to the UN .

(4) No conflict arose between relevant UNSC resolutions, which did not authorize SM’s continued detention, and Article 5 ECHR, and Article 103 of the Charter was inapplicable.

(5) SM’s detention was not authorized by IHL either, since IHL in NIACs contains no detention authority, and cannot prevail over Article 5 ECHR as lex specialis.

(6) SM’s detention violated Article 5 ECHR. While the detention up to 96 hours was Article 5-compliant, the 110 days that SM spent in UK detention were not.

The Court makes it clear that the position the UK government found itself in is largely its own doing (para. 417 ff). This is exactly right. The government’s own legal advisers informed it of the limited extant legal authority for prolonged detention. The UK government failed to enact its own domestic legislation on detention in Afghanistan, or to come to different arrangements with Afghan authorities. Similarly, the UK government chose not to derogate from the Convention, preferring instead to argue that the Convention does not apply. And now that this strategy has failed (and on several levels), much of what it has been doing is exposed as unlawful.

I imagine that the judgment will be appealed, and we shall we see what happens there. But whatever the appellate courts’ conclusions, I can only hope that their judges will show as much diligence and analytical precision as Mr Justice Leggatt.

Here are the highlights, with some commentary:

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More on the UN and Surveillance and Privacy in the Digital Age

Published on April 17, 2014        Author: 

The Office of the High Commissioner for Human Rights is now conducting a consultation for the purpose of preparing the High Commissioner’s report pursuant to the UN General Assembly’s resolution on privacy in the digital age. Some of the major privacy/human rights NGOs have now made their submissions public: here is the paper submitted jointly by Privacy International, Access, Electronic Frontier Foundation, Article 19, Association for Progressive Communications, Human Rights Watch, and the World Wide Web Foundation; and here is the submission by the Center for Democracy and Technology. The NGOs argue, inter alia, that Article 17 ICCPR applies to (extraterritorial) surveillance activities and that the bulk collection of communications data is inherently disproportionate.

UPDATE: All of the submissions are now available on the OHCHR website.

Quoting verbatim from the GA’s resolution, the Human Rights Council has also decided to convene a panel on the right to privacy in the digital age at its 27th session, to be held in September. The multi-stakeholder panel is to discuss ‘the promotion and protection of the right to privacy in the digital age in the context of domestic and extraterritorial surveillance and/or the interception of digital communications and the collection of personal data, including on a mass scale, also with a view to identifying challenges and best practices, taking into account the report of the United Nations High Commissioner for Human Rights requested by the General Assembly in its resolution 68/167.’

Readers may also recall that a few months ago I did a series of posts on human rights and foreign surveillance. I’ve since written up a more developed and expanded article based on that series, which takes into account developments as of March 2014, including the Koh memos and the concluding observations of the Human Rights Committee on the US fourth periodic report. The article will be published in the Harvard International Law Journal, and the draft is now available on SSRN. Comments are as always welcome; the abstract is below the fold.

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The Legal Framework of Future Military Operations: Inching Towards a More Strategic Approach?

Published on April 8, 2014        Author: 

In July 2013, the House of Commons Defence Committee launched an inquiry into the legal framework governing future operations of the British armed forces as part of its preparations for the next Strategic Defence and Security Review. The Committee has now published its findings in a report entitled ‘UK Armed Forces Personnel and the Legal Framework for Future Operations’.

The very fact that the Defence Committee saw the need to launch an inquiry into the legal framework governing military operations is remarkable. It demonstrates just how much legal considerations are shaping the current strategic and tactical landscape. It also lays bare a substantial degree of unease about the role that rules of law and legal processes play in an area as politically sensitive as the deployment of the armed forces.

Bearing in mind the complexity, contested nature and sheer scope of the topic, those who followed the inquiry closely may be forgiven for awaiting the publication of the Committee’s report with a certain sense of trepidation. How would the Committee deal with the extraordinarily broad remit of the inquiry? And what might lie at the bottom of Pandora’s box? These concerns turned out to be misplaced. The Committee must be commended for producing a balanced and informed report, no doubt assisted by the breadth of the expert evidence available to it. Above all, it is refreshing to see that the Committee succeeded in avoiding some of the untested assumptions and high drama which have been evident in the debate about the legal regulation of the armed forces.

Two main themes emerge from the report. The first is that the legal framework governing military operations is complex. This point may not come as a revelation to legal experts working in the field, yet acknowledging this complexity has very significant policy implications. As I have suggested in greater detail elsewhere (‘Deployed Operations and the ECHR’), legal complexity is here to stay and cannot be resolved for good. If all that we can achieve is a better balance of the competing considerations, we must focus our efforts on reducing the adverse effects of legal uncertainty on the armed forces, rather than chasing unrealistic attempts to simplify the law. The Committee’s recommendation to enhance the armed forces’ understanding of the law by providing them with better legal training, manuals and advice would go some way towards this end.

The second theme which emerges from the report is a strong sense that the Government must act more proactively and look at the legal framework for future military operations from a more strategic angle. Read the rest of this entry…

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Human Rights Committee’s Concluding Observations on the United States

Published on March 27, 2014        Author: 

Our friends at Just Security have just published an advance unedited version of the Human Rights Committee’s concluding observations on the fourth periodic report of the United States, as adopted yesterday by the Committee. The observations address many issues, but some of the highlights involve the extraterritorial application of the ICCPR, the use of drones, and NSA surveillance. For example, in para. 4:

The Committee regrets that the State party continues to maintain its position that the Covenant does not apply with respect to individuals under its jurisdiction but outside its territory, despite the contrary interpretation of article 2(1) supported by the Committee’s established jurisprudence, the jurisprudence of the International Court of Justice and state practice. [the Committee thus recommends to the US to:]  Interpret the Covenant in good faith, in accordance with the ordinary meaning to be given to its terms in their context, including subsequent practice, and in the light of its object and purpose and review its legal position so as to acknowledge the extraterritorial application of the Covenant under certain circumstances, as outlined inter alia in the Committee’s general comment No. 31 (2004) on the nature of the general legal obligation imposed on States parties to the Covenant;

With regard to the CIA ‘enhanced interrogation’ program under the previous US administration, the Committee was especially concerned about the impunity of the perpetrators of torture and other forms of ill-treatment, and recommended the investigation and prosecution especially of ‘persons in command positions,’  and that the ‘responsibility of those who provided legal pretexts for manifestly illegal behavior should also be established.’ (para. 5)

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Ukraine, Russia and Crimea in the European Court of Human Rights

Published on March 19, 2014        Author: 

Much has been written recently about the legal ramifications of events in Ukraine, but there was a new development last week when the European Court of Human Rights granted interim measures in an inter-state case brought by Ukraine against Russia. The case was lodged on 13 March, and on the same day the Strasbourg Court issued an interim measure (under rule 39) indicating that the Russian government should ‘refrain from measures which might threaten the life and health of the civilian population on the territory of Ukraine’.

The decision was taken by the President of the Third Section of the Court, the Andorran judge, Josep Casadevall. Judge Casadevall went further in calling on both Ukraine and Russia to refrain from taking any measures, ‘in particular military actions’, which might breach the rights of civilians under the European Convention on Human Rights, including putting their life and health at risk, and calling on the states to comply with Articles 2 and 3 of the Convention. Both states are obliged to inform the Court as soon as possible of the measures they have taken in response.

In spite of the Convention preamble’s exhortation to state parties to ensure its collective enforcement, the inter-state case procedure in Strasbourg remains a rarity. It may come as little surprise that Russia has been the respondent in the three most recent such cases, each of which has been brought by Georgia. Georgia v Russia (I) relates to the arrest and detention of the Georgian immigrant population in Russia in September 2006, following the arrest in Tbilisi of four Russian service personnel on espionage charges. More pertinently to the current events in Ukraine, Georgia v Russia (II) concerns the August 2008 conflict in South Ossetia and Abkhazia, in which Russia claims to have been defending the civilian population (Russian citizens who had been granted passports) in both regions against Georgian attacks (there are also at least 2,000 individual applications pending against one or other (or both) states). A third case brought by Georgia, relating to the detention of four Georgian minors in South Ossetia, was withdrawn after they were released in December 2009, following missions to the region by the Commissioner for Human Rights.

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Azemi v. Serbia in the European Court of Human Rights: (Dis)continuity of Serbia’s De Jure Jurisdiction over Kosovo

Published on March 13, 2014        Author: 

Following the 2008 Kosovo Declaration of Independence and the change in public powers in Kosovo, Azemi v. Serbia was the first decision in which the ECtHR examined whether Serbia continued to have jurisdiction in Kosovo. The applicant, Ali Azemi, a national of Kosovo, alleged that Serbia had violated his rights under Article 6 (1) of the Convention by failing to enforce a decision rendered by a court in Kosovo in 2002. The applicant argued that Serbia bore responsibility for the enforcement of the Convention rights throughout its territory, including Kosovo.

On November 5, 2013, the ECtHR found that Serbia could not be held responsible under Article 1 of the Convention for the non-enforcement of a decision of a Kosovo court. The Court had previously sustained the presumption of Serbia’s de jure jurisdiction in Kosovo. However, in the Azemi case in examining the period after the Declaration of Independence it departed from that view by way of establishing the presumption of neutrality with regard to Kosovo.

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Harold Koh’s Legal Opinions on the US Position on the Extraterritorial Application of Human Rights Treaties

Published on March 7, 2014        Author: 

Cross-posted on Just Security.

Earlier today Charlie Savage of The New York Times broke the story that while serving as the Legal Adviser at the US State Department Harold Koh wrote two major opinions on the extraterritorial application of human rights treaties, urging the Obama Administration to abandon the previous categorical position that the International Covenant on Civil and Political Rights can never apply outside a state party’s territory. The first opinion is on the geographical scope of application of the ICCPR, is dated 19 October 2010, and is available here. The second, on the geographic scope of application of the Convention against Torture and its application in situations of armed conflict, is dated 21 January 2013, and is available here. The two opinions, probably obtained by Savage in yet another leak from within the Administration, are a fascinating read. Koh essentially adopts almost all of the critiques levied against the existing US position, which he sees as increasingly untenable, and provides his own (relatively moderate) model of how the two treaties should apply outside a state’s own territory.

Savage also reports that despite Koh’s opinions the Administration has decided not to abandon the previous US position, simply because it fears (or at least a sufficient number of its component parts do) that accepting that human rights treaties apply extraterritorially would make its collective life more difficult, as everything from extraterritorial drone strikes to NSA surveillance could fall within the purview of the ICCPR. We shall soon see if Savage’s reporting is correct – the US is up for periodic review before the Human Rights Committee next week, and this is bound to be one of the first questions asked. As I’ve explained before, the US Fourth Periodic Report and a follow-up communication to the Committee merely registered the US position and the criticism thereof, without reiterating it, thus leaving the door open for change. If Savage’s reporting does prove to be correct and the US now clearly reiterates before the Committee that the ICCPR cannot apply extraterritorially because its Article 2(1) is supposedly crystal clear and unambiguous when it says that ‘[e]ach State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant,’ an important opportunity will have been missed.

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