Edited by Robert Kolb and Gloria Gaggioli
Chapter 6: Extraterritorial application of the human rights tolife and personal liberty, including habeas corpus, during situations of armed conflict
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 inter- national 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) inter- national 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.
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