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Home Human Rights Archive for category "Extraterritorial Application"

The Grand Chamber Judgment in Hassan v UK

Published on September 16, 2014        Author: 

The eagerly-awaited Grand Chamber judgment in the case of Hassan v UK has now been released, and its importance for anyone interested in extraterritoriality, detention and the relationship between international humanitarian law (IHL) and international human rights law (IHRL) cannot be overstated. For the first time in its history, the Court has explicitly offered its view on the interaction between IHL and IHRL and the operation of the Convention, particularly the right to liberty, in the context of an international armed conflict.

A good overview of the facts of the case and the Court’s judgment can be found here, and they will not be repeated in this post. Instead, I want to offer some initial thoughts on the Court’s reasoning with regard to Article 5 ECHR and, more specifically, its approach to treaty interpretation.

The question before the Grand Chamber was whether the internment of the applicant’s brother, which appeared to conform with the Third and Fourth Geneva Conventions, could be considered consistent with Article 5 ECHR, notwithstanding the absence of any derogation by the UK. At a very general level, the Court effectively had two options here. On the one hand, it could have followed the path it appeared to be laying in its previous case-law, particularly in Al-Skeini and Al-Jedda, and hold that, where jurisdiction exists and where no lawful derogation has been made, the State remains bound to honour its obligations under the ECHR as ordinarily interpreted. Had the Court taken this approach, the Contracting States may eventually have conceded defeat and begun derogating in extra-territorial contexts. (Incidentally, the Court continued to avoid explicitly engaging with the permissibility of extra-territorial derogations.) Instead, the Court adopted the alternative approach, interpreting the ECHR so as to leave room for the broader powers that States have under IHL. Thus, it effectively read into Article 5(1) ECHR an extra permissible ground for detention where consistent with the Third and Fourth Geneva Conventions, and it read down the requirement of habeas corpus in Article 5(4) to allow for the administrative forms of review under the Fourth Geneva Convention.

Let’s begin with a few, in my view, positive points about the Court’s approach here. First, and perhaps most importantly, the Court rejected the UK’s principal argument that IHL as the lex specialis precluded jurisdiction arising under Article 1 ECHR (para 77). To have followed this would effectively have been to displace the entire Convention where IHL applies. Instead, the Court adopted a more nuanced, case-by-case approach which looks at the specific right at issue. This enables the Court to retain its oversight function by assessing the legality of the actions of Contracting Parties through the prism of IHL.

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Human Rights Council Panel Discussion on Privacy in the Digital Age

Published on September 15, 2014        Author: 

Last Friday I had the privilege of moderating the panel discussion on the right to privacy in the digital age at the 27th regular session of the Human Rights Council. The video of the panel discussion is available here, and a press release summarizing some of the statements here. OHCHR will be producing a more detailed report on the discussion in due course.

It was a very interesting event, which benefited from four great panelists – Catalina Botero, the special rapporteur on the freedom of expression in the Inter-American system; Sarah Cleveland, professor at Columbia Law School; Yves Nissim, deputy chief of corporate social responsibility at Orange Telecom; and Carly Nyst, legal director of Privacy International. The discussion was lively and interactive, and also benefited from many comments from the floor by states and various NGOs. (Incidentally Dapo will also be moderating a HRC panel discussion next week on drones and counter-terrorism, also with an excellent cast of participants).

There was broad endorsement, from states as well as from the panelists, of the High Commissioner’s important report on the right to privacy in the digital age, with some disagreement on specific issues. The comments from the floor were quite varied in terms of topic, but two big themes were the application of the ICCPR to extraterritorial surveillance (on which see more here), and the quantity and quality of oversight and accountability mechanisms. The panelists and NGOs also called for the establishment of a new special rapporteur on the right to privacy.

The right to privacy in the digital age and the High Commissioner’s report will next be considered by the UN General Assembly at its forthcoming session next month.

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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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