7B.1 Executing the ‘war on terror’ extra-territorially

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In this context, critical questions arise in relation to the application of

international human rights law extra-territorially,292 rendered more

pressing by repeated reports of states violating human rights abroad,

jettisoning standards by which they would consider themselves bound

at home.293 Do the IHRL obligations of states apply, for example, to the

activities of ground troops, or bombardment by air forces, in Afghanistan

or Iraq, or to the killing of suspected al-Qaeda operatives in Yemen, or to

the ‘off shore’ detention of prisoners?



7B.1.1 Detention of prisoners abroad?

The arrest and detention of prisoners since 9/11 have led to widespread

allegations – and considerable evidence – of torture and other mistreatment.294 Does the human rights framework apply to these arrests and

detentions, despite them having been carried out in Afghanistan, Iraq, in

Guantanamo Bay Cuba, the Indian Ocean island of Diego Garcia295 or on

international waters?296



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294

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where known political boundaries, which previously existed in traditional wars do not

exist in the war on terrorism.’ (Press Gaggle by Ari Fleischer, 5 November 2002, available

at http://www.whitehouse.gov/news/releases/2002/11/20021105-2.html#3).

See legal framework section in this chapter, para. 7A.2.1; it is relatively uncontroversial

that states may be responsible for their actions abroad provided they exercise a sufficient

degree of authority and control over the situation, but more controversial is the nature of

authority or control required, e.g., must the state exercise control over all or part of the

‘territory’ in which military action takes place, as opposed to over the particular people

or situation in respect of which the state’s authority is exercised?

J. Fitzpatrick, ‘Speaking Law to Power: The War Against Terrorism and Human Rights’,

14 (2003) EJIL 241 at 246 suggests that one of the first consequences of the global ‘war

on terrorism’ may consist in the increase of the commission of extra-territorial human

rights violations.

See Chapter 6 on IHL which discusses the multiple reports of mistreatment of prisoners

in Afghanistan and elsewhere.

As the situation of detainees in Guantanamo Bay is discussed in the following chapter, it is

not further addressed here. A report published by the Washington Post at the end of 2002

reports that ‘according to U.S. officials, nearly 3,000 suspected al Qaeda members and

their supporters have been detained worldwide since September 11, 2001. In contrast to

the detention centre at Guantanamo Bay, where military lawyers, news reporters and the

Red Cross received occasional access to monitor prisoner conditions and treatment, the

CIA’s overseas interrogation facilities are off-limits to outsiders, and often even to other

government agencies. In addition to Bagram and Diego Garcia, the CIA has other secret

detention centres overseas, and often uses the facilities of foreign intelligence services.’

See D. Priest and B. Gellman, ‘U.S. Decries Abuse but Defends Interrogations. “Stress and

Duress” Tactics Used on Terrorism Suspects Held in Secret Overseas Facilities’, Washington

Post, 26 December 2002.

Reports note that a number of individuals apprehended during the military operations in Afghanistan have been detained in detention facilities in off-shore US Navy



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In this respect questions regarding the applicability of the human rights

framework should be straightforward, with previous decisions from, for

example, the Human Rights Committee, Inter-American Commission on

Human Rights and the monitoring organs of the ECHR having specifically decided that the human rights obligations of the state under whose

authority persons are detained are to apply irrespective of where, geographically, that authority is exercised.297 Indeed, in the context of the

Bankovi´ case, the UK government itself accepted that the ECHR would

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apply to arrests and detentions abroad.298 As the essential question is a de

facto one relating to whether the state exercises sufficient power, authority

or control,299 it appears then that human rights obligations apply towards

individuals arrested and detained by the power of the state, irrespective

of whether that power is exercised within the state, in another state or

between states. The real issue to be addressed regarding arrest and detention is not, or should not be, whether human rights law is applicable, but

whether the arrests or detentions are lawful according to the applicable

legal framework.300



7B.1.2 Aerial bombardment in Afghanistan or Iraq?

More controversial is the extra-territorial application of the IHRL framework in other contexts: does the aerial bombardment in Afghanistan or



297



298



299



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ships. See, e.g., Human Rights Watch, ‘Background Paper on Geneva Conventions and

Persons Held by US Forces’, 29 January 2002; M. Chinoy, ‘Marines setting up detention center’, CNN.com, 15 December 2001. See also P. Wolfowitz and Gen. Pace, DoD

News Briefing, 18 December 2001, where the US Deputy Secretary of Defense acknowledged the presence of five detainees (‘one Australian, one American, and three Taliban/

al Qaeda’) aboard the USS Peleliu (transcript available at http://www.dod.gov/

transcripts/2001/t12182001 t1218dsd.html).

Cases such as Ilascu v. Russia, Lopez Burgos v. Uruguay, Coard v. US and the recent

decision of the Inter-American Commission on Human Rights regarding Precautionary

Measures in Guantanamo Bay, cited at Chapter 7A.2.1 above, all concerned arrest and

detention abroad and reiterated the principle of extraterritorial application of human

rights obligations in this context.

See, e.g., pages 13 and 24 of the UK Government’s pleadings in Bankovi´, below,

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note 303, on file with author, wherein governments opposing the application of the

ECHR in the context of aerial bombardment themselves draw a clear distinction between

those facts and the ‘classic’ authority of the state to arrest and apprehend.

See, e.g., Human Rights Committee, General Comment No. 31: The Nature of the General

Legal Obligation Imposed on States Parties to the Covenant (Article 2) [2004], UN Doc.

CCPR/C/74/CRP.4/Rev.6.

This is discussed in Chapter 8, in relation to Guantanamo Bay. In the context of armed

conflict, the lawfulness of detention under IHRL must be understood by reference to IHL

and the lawful bases for detention provided for therein.



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Iraq, for example, fall to be assessed against the intervening states’ human

rights obligations? Two approaches may be distinguished. According to

the first, the intervening state exercised ‘power’, ‘authority’ and ‘control’

over the operations, and the individuals who suffered the effects of those

operations, hence human rights law is applicable. Thus, on this view,

while undoubtedly IHL provides the principal legal norms for assessing, for example, the legitimacy of targeting and lawfulness of killings in

armed conflict, the human rights framework and the institutions charged

with its implementation301 are of continued relevance alongside IHL. The

same logic by which human rights bodies have in the past deemed IHRL

applicable to military operations by ground troops applies to operations

conducted aerially.302

However, a more restrictive view may be identified from the approach

of the European Court of Human Rights in Bankovi´.303 The rationale of

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that case may indicate either that aerial bombardment is somehow per se

excluded from the human rights framework, or (somewhat more plausibly

given the terms of the judgment) that it is effective control of the territory

in question that is key for the military campaign – including its aerial

dimension – to be governed by human rights treaty obligations.304 Such

an approach would limit (but not exclude) oversight by the European

Court of Human Rights of bombardment by states such as the UK in

Afghanistan or Iraq and, if applied more broadly, it could conceivably

limit the application of the ICCPR obligations in respect of action by the

US or others.305

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303

304



305



As noted above, where the human rights framework applies, it carries with it available

mechanisms for individual redress; where IHL applies those bodies may have reference

to, and effectively apply, IHL to the situations before them.

Aerial bombardment or ground troops should not be the distinguishing factor. See discussion above and the Applicants’ submissions in Bankovi´, below, note 303, on file with

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author.

See discussion, para. 7A.2.1 Section A of this chapter.

The Court acknowledged that military operations by ground troops in territory over

which the state exercises effective control are covered by the ECHR. It did not make

explicit whether, e.g., the action of ground troops in territory not so controlled would be

covered by the ECHR, nor whether conduct by air forces in controlled territory would

be covered by it, i.e., whether the aerial or control factor was the critical one, although

it is suggested that the tenor of the judgment suggests that territorial control is, in the

Court’s view, key. See Bankovi´ and others v. Belgium and 16 other Contracting States (Appl.

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No. 52207/99), ECtHR, Admissibility decision of 19 December 1999, Reports 2001-XII

(hereinafter ‘Bankovi´’), paras. 71 ff.

c

As discussed in the Framework section A above, it is unclear whether this rationale

would be applied by other bodies, which have historically made statements (see, e.g.,

the statement that it is ‘unconscionable’ to apply different human rights standards

at home and abroad made by the Human Rights Committee in Lopez Burgos v.



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As discussed above, Bankovi´ is however of questionable relevance

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beyond the regional, or indeed the European, context.306 Moreover, the

apparent relief from extra-territorial human rights obligations that it

implies is limited. If control of territory is, as Bankovi´ suggests, the critc

ical factor in engaging human rights responsibilities, then at least from

the point when the US and its allies became occupying forces of parts

of Afghanistan or Iraq – as evidenced for example by the presence of

considerable ground troops and ultimately the absence of an alternative

functioning government – the human rights framework may then be relevant (alongside IHL) to an assessment of military operations, however

executed.



7B.1.3 Targeted Killings?

On 3 November 2003, the US authorities carried out an aerial attack

on Yemen soil (reportedly with the consent of the Yemen authorities)

resulting in the death of Qaed Senyan al-Harithi – a suspected high-level

member of al-Qaeda and five other suspected al-Qaeda associates.307 Is

the human rights framework applicable to this incident?

It may be that this operation, directed against persons suspected of

involvement in the attack on the USS Cole in Aden, should be subject

to the same logic as that governing the application of IHRL to arrest

and detention abroad. The Yemen attack compares peculiarly with law

enforcement operations: it was aimed at and resulted in death rather than

arrest, involved not a traditional ground police operation but an aerial

one, and it took place under uncertain legal authority.308 But it would



306



307

308



Uruguay (Comm. No. 52/1979), Views of 29 July 1981, UN Doc. CCPR/C/13/D/52/1979,

para. 12.3) apparently inconsistent with this approach. As regards the US it is bound by

the ICCPR, but has not accepted the jurisdiction of the Human Rights Committee under

the First Optional Protocol.

The approach has been thus far supported by other bodies interpreting other instruments.

Its impact may be limited to bombardment by European states (outside the regional zone

of the ECHR), as the judgment emphasises the ECHR’s objective of rights protection

‘in an essentially regional context and . . . in the legal space of the Contracting Parties’

(Bankovi´, para. 80). See by contrast, the approach of the Inter-American Commission

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on Human Rights in Precautionary Measures in Guantanamo Bay (Cuba, 13 March 2002).

See D. Johnston and D.E. Sanger, ‘Yemen Killing Based on Rules Set Out by Bush’, New

York Times, 5 November 2002.

See the statement of the US National Security Advisor: ‘The president has given broad

authority to U.S. officials in a variety of circumstances to do what they need to do to

protect the country. We’re in a new kind of war, and we’ve made very clear that it is

important that this new kind of war be fought on different battlefields.’ (Condoleezza

Rice, Interview on Fox News, 10 November 2002, above).



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be anomalous if these peculiarities were distinguishing factors precluding

the application of human rights law: if the framework that would have

applied had the suspects been arrested were not to apply because they

were killed or if the aerial (as opposed to ground) method of execution

were to make a difference, or, particularly ironically, if the lack of judicial

authorisation of the operation were itself to render the situation beyond

the oversight of human rights law.

If on the other hand there is a principled basis to distinguish this case

from extra territorial arrest or detention, and it were to be treated instead

as a military operation conducted through aerial bombardment, the situation may reflect the scenario discussed in the previous section. However,

even assuming that the European Court of Human Rights’ restrictive

approach in the form of the Bankovi´ case were to be followed, this parc

ticular operation may still fall within IHRL on the basis that the consent

of the territorial state was (reportedly) obtained in advance.309

The real issue in relation to the Yemen attack is not whether IHRL is

applicable or excluded, but, as discussed in the next section, whether IHL

also applies and whether the attack in question is justified according to

applicable law.310



7B.1.4 Clarifying and enforcing extra-territorial

human rights law?

In conclusion, it is clear that many operations carried out beyond a state’s

borders in the context of the ‘war on terror’ ‘of global reach’311 undoubtedly fall within the purview of the IHRL framework. At a strict minimum,

these include the exercise of law enforcement authority such as arrest and

detentions abroad, wherever carried out, and other operations conducted

on territory effectively controlled by the state, or possibly where the state

acts on the invitation of the authority exercising such control.

If the global ‘war on terror’, and its myopic approach to national boundaries, continues to gain ground, it may with time lead to clarification of

309

310

311



On the questionable relevance of the consent of the territorial state, as suggested by the

Bankovi´ judgment (para. 71), see para. 7A.2.1.

c

This question is addressed in this chapter, para. 7A.2.

The ‘global’ character of the war against terror has been underlined by the US administration ever since 9/11: ‘The war on terror begins with al-Qaida, but it does not

end there. It will not end until every terrorist group of global reach has been found,

stopped, and defeated’, G.W. Bush, Address to a Joint Session of Congress and the

American People, 20 September 2001, available at http://www.whitehouse.gov/news/

releases/2001/09/20010920-8.html.



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those areas of greater uncertainty as to the applicability of human rights

norms beyond the state’s territory.312 Fundamentally, it may also serve

to underscore, or to undermine, the thesis presented years ago, but more

relevant now than ever, that the key factor is not where, but whether, the

state exercises its power and responsibility. A purposive approach, focused

on ensuring rights protection rather than strict territorial limits certainly

finds support in the spirit of the human rights instruments, particularly

those with universal aims.

It remains to be seen to what extent human rights bodies and mechanisms will rise to the challenge of addressing these issues. Early indications

are of a reticence by certain human rights bodies to incorporate proactively such an approach into their everyday work.313 Those bodies charged

with addressing individual petitions alleging violations of human rights

are, however, likely to be called on to do so in the context of individual

cases arising from state action abroad; their role in so doing is all the more

important where the reach of national laws or national courts is treated

as territorially limited.314

Individuals alleging violations by states that have ratified the ICCPR

and Optional Protocol will have recourse to the UN Human Rights Committee, which therefore provides a potential mechanism to challenge

the actions of some but not all members of the US-led coalitions in



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314



While the importance of the extra-territoriality issue is highlighted by the ‘war on terror’,

it is by no means limited to it. The issue is increasingly relevant given the reality of the

globalisation of the exercise of power and responsibility.

Note that the reports of human rights bodies and specialists post 9/11, while often thorough in other respects, not infrequently entirely fail to address the question of extraterritoriality (with the exception of the principle of non-refoulement/extradition). See,

e.g., Inter-American Commission on Human Rights, Report on Terrorism and Human

Rights, 22 October 2002, OAS Doc. OEA/Ser.L/V/II.116; Council of Europe, Guidelines

on Human Rights and the Fight against Terrorism, adopted by the Committee of Ministers on 11 July 2002 at the 804th meeting of the Ministers’ Deputies (hereinafter ‘Council

of Europe, Guidelines on Human Rights and Terrorism’); OSCE Charter on Preventing

and Combating Terrorism, adopted by the Ministerial Council of the Organization for

Security and Co-operation in Europe on 7 December 2002 (hereinafter ‘OSCE Charter

on Terrorism’). The work of the thematic special rapporteurs tends likewise to assume a

focus on violations within the states’ own boundaries. However, the fact that UN High

Commissioner for Human Rights has underlined the obligations of states in Iraq and

Afghanistan (albeit with a focus on respect for IHL) may presuppose the applicability of

the framework of IHRL.

See, e.g., discussion of the approach of US courts in Guantanamo Bay and arguments

concerning non-application of the US Torture Protection Act extra-territorially, discussed

at Chapter 8. Human rights courts step in once domestic remedies fail or have been

exhausted.



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Afghanistan and Iraq for example.315 Regional mechanisms such as the

European Court of Human Rights316 and the Inter-American Commission on Human Rights317 may provide a remedy for violations by states

parties to the relevant regional instruments, although the willingness of at

least the European Court to address some aspects of military operations

abroad remains doubtful.318 On the other hand, a promising indication is

found in the fact that in the one case where an individual petition has been

brought in relation to these issues – in this case before the Inter-American

Commission addressing the off shore detention on Guantanamo Bay –

the Commission did not hesitate to reaffirm that:

[t]he determination of a state’s responsibility for violations of the international human rights of a particular individual turns not on the individual’s nationality or presence within a particular geographic area, but rather

whether under specific circumstances, that person fell within the state’s

authority and control.319



7B.2 The ‘war’ and human rights

The misleading overuse of the language of ‘war’, and the consequent jeopardy to the integrity of international humanitarian law, was noted in the

previous chapter. In several respects, however, the conceptualisation of

counter terrorism as a ‘war on terror’ may also have an impact on the

perception and application of the human rights framework.

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317



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For example, the Coalition taking part in operation ‘Anaconda’ in Afghanistan included

the US, UK, Canada, Denmark, France, Germany and Norway. All are parties to the

ICCPR and all, bar the US and UK, are parties to the Optional Protocol by virtue of

which the Human Rights Committee has authority to receive individual petitions.

In respect of obligations incumbent on European states party to the ECHR, individuals

automatically have the right to petition to ECtHR, although in light of Bankovi´ it is

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doubtful that the Court would consider itself to have jurisdiction at least as regards

violations arising out of aerial bombardment.

Recourse to the Inter-American Commission on Human Rights exists for states bound by

the American Convention on Human Rights or the American Declaration on the Rights

and Duties of Man, including (as regards the latter) the United States. An example of an

application brought against the US, under the American Declaration of Human Rights

to the Inter-American Commission is the above mentioned request for precautionary

measures in Guantanamo Bay. For those states that accept the Court’s jurisdiction, cases

can also be brought before the IACtHR.

The Court’s decision not to accept jurisdiction in Bankovi´ was based in part on a relucc

tance to extend jurisdiction beyond the ‘regional’ sphere of application of the Convention.

Other bodies have not addressed the Bankovi´ scenario directly and their approach to it,

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if or when they do, remains uncertain.

Inter-American Commission on Human Rights, Precautionary Measures in Guantanamo

Bay, citing Coard et al. v. the United States, para. 37.



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At times, the ‘war’ is invoked in an apparent attempt to suggest human

rights are simply inapplicable. While politically insidious, from a legal

point of view this can be straightforwardly dismissed as a clear misunderstanding of the human rights framework and its continued relevance

in situations of emergency.320 However, even on a correct understanding

of IHRL (as not displaced by IHL but complementary to it), the existence

of conflict and application of IHL as the lex specialis undoubtedly has a

dramatic transformative effect on the nature of particular rights. Notably,

killings and detentions may be permissible in conflict while they would

otherwise amount to arbitrary deprivations of life and liberty. A precise

appreciation of when ‘war’ is really war as opposed to a rhetorical device,

is therefore critical to the shape of human rights protection.321

At the same time, recourse to the legal standards applicable in ‘war’

has been selective post 9/11, invoked to justify what would be impermissible under IHRL, yet without acknowledging that corresponding

rights under IHL take effect. It is this attempt to suspend one set of

legal protections, without acknowledging the application of another, that

leaves rights particularly vulnerable.322 The following may serve as an

example.



7B.2.1 The Yemen attack: armed conflict or assassination?

The US authorities justified the aerial attack on an allegedly high-level

member of al-Qaeda and five others as a military operation323 related

to an armed conflict, governed by the laws of IHL, with this particular attack purportedly justified as the killing of persons perceived to be

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Undoubtedly the most relevant body of law in assessing the lawfulness of certain action

in armed conflict is IHL. One specific advantage that the application of the human

rights framework enjoys over the application of IHL, however, lies in the availability of

mechanisms for individual redress.

While the focus here is on applicable international law, it is noted that the existence of war

may also change applicable domestic law. One example is the domestic law of the United

States relating to the ‘assassination’ of foreign nationals prohibited during peacetime

since 1975, while during wartime a different (and more permissive) body of law is used to

define assassination. See M.N. Schmitt, ‘State Sponsored Assassination in International

and Domestic Law’, 17 (1992) Yale Journal of International Law 609.

Note that IHL itself enshrines protections of the human person that in some cases go

beyond those of IHRL – see, e.g., Prisoners of War discussion in Chapter 8, Guantanamo

Bay.

The strike in Yemen was apparently carried out by the CIA, and not by the US armed

forces. See ‘Deputy Secretary Wolfowitz Interview With CNN International’, 5 November

2002, at http://www.defenselink.mil/transcripts/2002/t11052002 t1105cnn.html.