Chapter 7. Human Rights Obligations of International Actors
A. Human Rights Obligations in Peace-building Missions
3. Human Rights and Foreign Military Components
Th e status of foreign military components participating in international opera- tions is, in terms of the applicable legal framework, diff erent from that of the civil personnel. Th e legal status of the military presence in Kosovo for instance is not identical to that of UNMIK, since KFOR is a subsidiary organ of NATO, exercising powers delegated to it by the UN Security Council. Th e same reasoning we held in respect of the civil components of international administration can of course be applied to military forces if they can be regarded as UN subsidiary organs, and if they exercise functions to which human rights can be applied.
Th is would for instance be the case if military personnel would run detention facilities or exercise policing activity. However, an often-overlooked issue is the possible concomitant application of the laws of armed confl ict in certain cases, namely when there is an armed confl ict or a situation of occupation. In that case, the legal framework applicable in armed confl ict or under occupation
342 See also Irmscher, supra note 327, p. 370 and Bongiorno, C., ‘A culture of impunity: applying international human rights law to the United Nations in East Timor’, 33 Columbia Human Rights Law Review 643 (2001–2002), pp. 643–644.
343 Human Rights Committee, Report Submitted by the United Nations Interim Administra- tion Mission in Kosovo to the Human Rights Committee on the Human Rights Situation in Kosovo since June 1999, UN Doc. CCPR/C/UNK/1 (13 March 2006), paras. 123–124.
needs to be regarded as a lex specialis. A detailed analysis of this question would nevertheless fall outside the scope of this book. At this stage it is suffi cient to mention the growing consensus in favour of the application of human rights law to situations of occupation.344 Th is was confi rmed by the International Court of Justice in its advisory opinions in the ‘Legality of the Th reat or Use of Nuclear Weapons’ case345 and the case concerning the ‘Legal Consequences of the Con- struction of a Wall in the occupied Palestinian Territory’.346 Th e Human Rights Committee similarly confi rmed the complementary and inclusive character of both legal frameworks.347
Th e human rights obligations of military contingents can be tackled from the perspective of obligations of the individual states to observe human rights law,348 as they are composed of national forces which have international obligations, including respect for the laws of armed confl ict.349 In principle, the scope of application of the main human rights instruments is limited to persons who are subject to the jurisdiction of a State party to these instruments. Several decisions or recommendations have nevertheless extended their application to the agents of a State, party to one of these human rights treaties, for acts committed on the territory of another State. With regard to the ICCPR, the Human Rights Committee has repeatedly argued that the jurisdiction of states can be extended beyond the territorial boundaries of the State party to the ICCPR. In ‘Delia Salidas Lopez v. Uruguay’, where a Uruguayan national living in Argentina was captured and tortured, the Committee held that the violation by Uruguay of certain rights enshrined in the Covenant could not be waived by reason of the fact that the violations were committed outside its territory. Th e Committee further stated that it “would be unconscionable to so interpret the responsibility under article 2 of the Covenant as to permit a State party to perpetrate violations of the Covenant on the territory of another State, which violations it could not
344 Ratner, supra note 8 and Wilde, R., ‘Th e Applicability of International Human Rights Law to the Coalition Provisional Authority (CPA) and Foreign Military Presence in Iraq’, 11 ILSA Journal of International and Comparative Law 489 (2005), pp. 489–490.
345 International Court of Justice, ‘Legality of the Th reat or Use of Nuclear Weapons’, Advisory Opinion, 8 July 1996, 1996 ICJ Reports 226.
346 International Court of Justice, ‘Legal Consequences of the Construction of a Wall in the occupied Palestinian Territory’, Advisory Opinion, 9 July 2004, www.icj-cij.org.
347 Human Rights Committee, General Comment 31: Nature of the General Legal Obligation on States Parties to the Covenant, UN Doc. CCPR/C/21/Rev.1/Add. 13 (2004), para. 11.
348 See: Cerone, supra note 325, p. 475.
349 Sassoli, M., ‘Droit international pénal et droit pénal interne: le cas des territoires se trouvant sous administration internationale’, in Henzelin, M. and Roth, R. (eds.), Le droit pénal à l’épreuve de l’internationalisation (Paris / Brussels / Geneva: LGDJ / Bruylant / Georg, 2002), p. 43.
perpetrate on its own territory”.350 Although this case concerned the violation of rights of a state’s own citizens residing on foreign territory, the principle posed by the Committee is considered broad enough to include all violations of the ICCPR on foreign territory by a State party.351
As far as the ECHR is concerned, the European Court of Human Rights extensively examined the extraterritorial application of the convention in the landmark case of ‘Loizidou v. Turkey’.352 Th e case concerned alleged violations of the ECHR, such as unlawful detention and denial of access to property, by the Turkish presence in Northern Cyprus. Turkey invoked declarations it had made restricting the application of the Convention to acts or omissions of public authorities in Turkey performed within the boundaries of the national terri- tory of the Republic of Turkey.353 Th e Court explicitly linked the obligation to ensure the application of the ECHR to the eff ective control over the territory, and recalled that “although article 1 sets limits on the reach of the Conven- tion, the concept of “jurisdiction” under this provision is not restricted to the national territory of the High Contracting Parties. [. . .] [T]he responsibility of a Contracting Party may also arise when as a consequence of military action – whether lawful or unlawful – it exercises eff ective control of an area outside its national territory. Th e obligation to secure, in such an area, the rights and free- doms set out in the Convention derives from the fact of such control whether it be exercised directly, through its armed forces, or through a subordinate local administration.”354 Th e developed ‘eff ective control’ criterion was confi rmed by the same Court in the ‘Bankovich’ case, in which the Court found that the ECHR refl ected the “ordinary and essentially territorial notion of jurisdiction, other bases of jurisdiction being exceptional and requiring special justifi cations in the particular circumstances of each case”.355 Th e Court subsequently examined whether the applicants were capable of coming within the jurisdiction of the respondent State, and concluded that the victims of the bombing of the RTS in the Federal Republic of Yugoslavia by NATO Air Forces were not within the jurisdiction of a Contracting State.356
350 Human Rights Committee, ‘Delia Salidas de Lopez v. Uruguay’, Communication No. 52/1979, UN Doc. CCPR/C/OP/1 (29 July 1981), para. 12.3.
351 Cerone, supra note 325, p. 476.
352 European Court of Human Rights, ‘Loizidou v. Turkey’, 23 February 1995, 1995 ECHR Series A No. 310.
353 See Moloney, R., ‘Incompatible reservations to Human Rights Treaties: severability and the problem of State consent’, 5 Melbourne Journal of International Law 155 (2004).
354 European Court of Human Rights, ‘Loizidou v. Turkey’, 23 February 1995, 1995 ECHR Series A No. 310, para. 62.
355 European Court of Human Rights, ‘Bankovich and others. v. Belgium and 16 other contract- ing States’, 12 December 2001, ECHR 2001–XII, para. 61.
356 Ibid., paras. 74–75.
A similar approach was followed by the Inter-American Commission of Human Rights in ‘Coard et al. v. the United States’. Th e Commission held that “each American State is obliged to uphold the protected rights of any person subject to its jurisdiction. [. . .] [Th is] may, under given circumstances, refer to conduct with extraterritorial locus where the person concerned is present in the territory of one state, but subjected to the control of another state – usually through the acts of the latter’s agent abroad.”357 Th e threshold applied by the Inter-Ameri- can Commission is lower than that by the European Human Rights Court as it requires eff ective control over an individual, irrespective of his nationality or geographical location.358
Th e International Court of Justice equally confi rmed the extraterritorial application of human rights standards in its 2004 Advisory Opinion on the
‘Legal Consequences of the Construction of a Wall in the occupied Palestinian Territory’. Th e International Court contended that the ICCPR, the ICESCR and the Convention on the Rights of the Child applied to Israel’s conduct in the occupied Palestinian Territory. Th e Court found “that the International Covenant on Civil and Political Rights is applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory.”359 With respect to the ICESCR, however, the Court asserted that, while it does not con- tain a provision on its scope of application and although the rights guaranteed therein are essentially territorial, “it is not to be excluded that it applies both to territories over which a State party has sovereignty and to those over which that State exercises territorial jurisdiction”.360 Interestingly, the Court linked the application of the ICESCR to the exercise of territorial jurisdiction, and thus not individual jurisdiction.
Th e abovementioned principles, applied to recent cases in which a military component was concomitantly established, would have encompassed an obliga- tion for the military components to observe the human rights contained in the instruments discussed, provided that the sending States were bound by them.361 Although the application of the eff ective control test, as contained in the ‘Loizidou’
case, does not create an overall obligation on all contingents to ensure respect for human rights law, the jurisdiction of military forces over individuals, and
357 American Commission of Human Rights, ‘Coard et al. v. the United States’, Case 10.951, Report No. 109/99 (29 September 1999).
358 Cf. Cerone, J., ‘Th e Application of Regional Human Rights Law Beyond Regional Frontiers:
Th e Inter-American Commission on Human Rights and US Activities in Iraq’, ASIL Insights (2005).
359 International Court of Justice, ‘Legal Consequences of the Construction of a Wall in the occupied Palestinian Territory’, Advisory Opinion, 9 July 2004, www.icj-cij.org, para. 111.
360 Ibid., para. 112.
361 For a similar conclusion, with regard to KFOR in Kosovo, see Cerone, supra note 325, pp.
479–480.
especially detainees in the emergency phases, was unquestionable.362 In Iraq, the application of human rights norms to the military presence equally seems beyond doubt, insofar as the conditions with regard to control exercised over individuals are met.363 Th e principles relating to the extraterritorial application of human rights conventions can equally be applied to the Coalition Provisional Authority in Iraq, which can be seen as under the Authority of the Governments of both the United States and the United Kingdom.364 However, in general, the diversity of the military contingents often leads to diffi cult application of these instruments. While some are bound by the ECHR, others are bound by the American Human Rights Convention. In addition, not all States have signed or ratifi ed the ICCPR.365