Human Rights and Acts By Troops Abroad: Rights and Jurisdictional Restrictions

26 Pages Posted: 22 Aug 2012

See all articles by Mads Andenas

Mads Andenas

University of Oslo - Faculty of Law; Institute of Advanced Legal Studies, School of Advanced Study, University of London; University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Eirik Bjorge

University of Oxford - Corpus Christi College; University of Oslo

Date Written: August 21, 2012

Abstract

Jurisdiction and immunity have tempered the emergence of human rights and remedies. They are often the first line of defense for authorities when a new area is brought in under judicial review. Government acts abroad, and in particular acts of war and occupation, are perhaps the last frontier. The recent judgments by the Grand Chamber of the European Court of Human Rights in Al-Skeini and Al-Jedda rejected Government claims of lack of jurisdiction and attribution of acts by British soldiers to the UN instead of to the United Kingdom, which would have resulted in an effective immunity for the acts concerned, which included murder, torture, and arbitrary detention. The UK courts applied a restrictive jurisdictional principle with extra-territorial application only in narrowly defined exceptional categories, of which the House of Lords used only one. The European Court, however, enumerated circumstances which go so much further that they no longer constitute exceptions but a return to the principle that the European Convention is fully capable of extra-territorial application. The incremental application of this general principle in a new area brought before the Court in the cases, and the gradual rejection of Government defenses that previously had been accepted under special circumstances of the interventions in the former Yugoslavia in the 1990s, are not surprising, and the outcome in Al-Skeini and Al-Jedda is difficult to criticize.

Suggested Citation

Andenas, Mads and Bjorge, Eirik, Human Rights and Acts By Troops Abroad: Rights and Jurisdictional Restrictions (August 21, 2012). European Public Law, Vol. 18, No. 3, 2012; University of Oslo Faculty of Law Research Paper No. 2012-26. Available at SSRN: https://ssrn.com/abstract=2133133 or http://dx.doi.org/10.2139/ssrn.2133133

Mads Andenas (Contact Author)

University of Oslo - Faculty of Law ( email )

PO Box 6706 St Olavsplass
Oslo, 0130
Norway

Institute of Advanced Legal Studies, School of Advanced Study, University of London ( email )

Charles Clore House
17 Russell Square
London, WC1B 5DR
United Kingdom

HOME PAGE: http://ials.sas.ac.uk/about/staff/staff.asp?ID=2

University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Boalt Hall
Berkeley, CA 94720-7200
United States

Eirik Bjorge

University of Oxford - Corpus Christi College ( email )

Merton Street
Oxford, OX1 4JF
United Kingdom

University of Oslo ( email )

PO Box 6706 St Olavs plass
Oslo, N-0317
Norway

Register to save articles to
your library

Register

Paper statistics

Downloads
187
Abstract Views
733
rank
160,507
PlumX Metrics