Jus ad Bellum, Jus in Bello and Jus post Bellum
Edited by Nigel White and Christian Henderson
Chapter 18: Human rights protection during extra-territorial military operations: perspectives at international and English law
Over the past decade the issue of human rights protection has acquired an unprecedented intensity in terms of regulating the conduct of states parties to human rights treaties when conducting military operations abroad. The classical philosophical meaning of human rights has historically concerned the relationship between the government and the governed. Yet the letter and spirit of human rights treaties have also led to governments being held accountable for what they do abroad and to non- nationals. This issue has received the most intensive treatment in the jurisprudence of the European Court of Human Rights, which interprets and applies Article 1 of the European Convention on Human Rights (hereinafter ‘ECHR’) requiring the protection of the rights of those who find themselves under the jurisdiction of states parties. The Strasbourg Court (and the European Commission on Human Rights at earlier stages) had to examine this issue in its multiple aspects, ranging from rather trivial and mundane situations relating to the conduct of consular officials to more extraordinary situations, including the wars in Cyprus, Yugoslavia and Iraq. Given that the Strasbourg Court’s jurisdiction is meant to complement the jurisdiction of national courts, the latter, especially in England, have encountered cases where the identification of the precise scope of Article 1 was required. This contribution examines this process by primarily focusing upon the international legal technique of interpretation as applied to Article 1 of the ECHR.
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