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Extraterritorial Application of the Human Rights to Life and Personal Liberty, including Habeas Corpus, during Situations of Armed Conflict

Research Handbook on Human Rights and Humanitarian Law, 2013.

25 Pages Posted: 13 Apr 2016  

Robert Kogod Goldman

American University - Washington College of Law

Date Written: 2013

Abstract

In the wake of the September 11, 2001 attacks in the United States, the US, with the assistance of its coalition partners – all parties to various human rights instruments – initiated the so-called ‘war on terror’ by invading Afghanistan, where their armed forces killed or captured hundreds of ‘terrorist suspects’. Some of those detained were taken to the US military facility at Guantanamo Bay, Cuba, while others have languished in US custody in Afghanistan. These actions raise the question whether a State is bound by its human rights obligations when its agents operate outside of national territory. And, if so, how do those obligations interrelate with the State’s other obligations under international humanitarian law when its counter-terrorism operations coincide with
situations of armed conflict.

This chapter addresses these questions. In particular, it examines the extraterritorial reach of two fundamental human rights during two situations recognized in international law. These rights are the right to life and the right to liberty and the related procedural safeguard of habeas corpus. The two situations examined are: (1) international armed conflicts, including occupation; and (2) non-international armed conflicts. The paper surveys the jurisprudence on the extraterritorial application of the International Covenant on Civil and Political Rights (ICCPR), the American Convention on Human Rights (American Convention) and American Declaration of the Rights and Duties of Man (American Declaration), and the European Convention on Human Rights (European Convention), and the extent to which rights in these instruments can be derogated from. It also examines how the treaty bodies supervising these instruments view the relationship between international human rights law (HRL) and international humanitarian law (IHL) in situations of armed conflict. Relevant decisions of the International Court of Justice are also referenced in this connection. The chapter also identifies certain gaps in legal protection.

Keywords: human rights, international humanitarian law, war on terror

Suggested Citation

Goldman, Robert Kogod, Extraterritorial Application of the Human Rights to Life and Personal Liberty, including Habeas Corpus, during Situations of Armed Conflict (2013). Research Handbook on Human Rights and Humanitarian Law, 2013.. Available at SSRN: https://ssrn.com/abstract=2762926

Robert Kogod Goldman (Contact Author)

American University - Washington College of Law ( email )

4300 Nebraska Avenue N.W.
Washington, DC 20016
United States

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