The Application of Regional Human Rights Law Beyond Regional Frontiers: The Inter-American Commission on Human Rights and US Activities in Iraq
Introduction
As the Inter-American Commission on Human Rights goes into session this month, among the issues it will have to consider is whether to admit a case of alleged violations of human rights and humanitarian law committed by US forces in Iraq. Although the United States is not a state party to the American Convention on Human Rights, the Commission exercises jurisdiction over the US on the basis of its mandate under the OAS Charter, to which the US is a party. In such cases, the Commission applies the standards set forth in the American Declaration of the Rights and Duties of Man.
A petition was submitted to the Commission alleging that US troops committed numerous human rights violations in the course of seizing the Falluja General Hospital in November 2004. The petitioners claim that US forces took hospital patients from their rooms, ordered them to lie on the floor, and tied their hands behind their backs. They also allege that US aircraft bombarded a medical trauma clinic, resulting in the deaths of medical staff and patients.
While the case is politically sensitive for obvious reasons, it also raises controversial legal issues. One of the most contentious issues is the application of regional human rights obligations in territories far beyond the regional space within which the norms were developed.
Even when a state acts within its region, but outside of its home territory, the extraterritorial application of human rights law raises significant legal issues. A common feature of human rights treaties is that the scope of beneficiaries[1] (i.e. those whose rights the state is obliged to respect and ensure) is typically limited to those within a state's territory or subject to its jurisdiction.[2] Based purely on an "ordinary meaning" interpretation of the text, it is unclear how this would apply with respect to individuals outside of a state's territory. Even if it is accepted in principle that states may be bound by human rights treaties with respect to their extraterritorial conduct, several perplexing legal questions remain, including the one discussed here: In what circumstances are they bound and under what theory?
The Inter-American Commission is not alone in grappling with these issues. Cases involving alleged human rights violations committed outside the physical territory of the state have been considered by such fora as the UN-related Human Rights Committee and the European Court of Human Rights.
Extraterritorial Application of Human Rights Treaties
The Human Rights Committee has consistently held that the International Covenant on Civil and Political Rights (ICCPR) can have extraterritorial application, clearly demonstrating its understanding that a State's jurisdiction extends beyond its territorial boundaries.
In Burgos / Lopez v. Uruguay, the Committee held that Uruguay violated its obligations under the Covenant when its security forces abducted and tortured a Uruguayan citizen then living in Argentina. Following the command of Article 5(1) that "[n]othing in the present Covenant may be interpreted as implying -- any right to engage in any activity - aimed at the destruction of any of the rights and freedoms recognized herein," the Committee reasoned 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 perpetrate on its own territory."[3]
Initially, it was unclear whether the Committee's holding in Burgos / Lopez was strictly limited to extraterritorial violations committed against a state's own nationals. However, the Committee's recent practice makes clear that the Covenant applies to a state's conduct abroad even with respect to its treatment of foreign nationals.
In its General Comment 31,[4] the Committee asserted that "a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party." Similarly, after affirming that the "enjoyment of Covenant rights is not limited to citizens of States Parties but must also be available to all individuals, regardless of nationality or statelessness, such as asylum seekers, refugees, migrant workers and other persons, who may find themselves in the territory or subject to the jurisdiction of the State Party," the Committee noted that "[t]his principle also applies to those within the power or effective control of the forces of a State Party acting outside its territory, regardless of the circumstances in which such power or effective control was obtained, such as forces constituting a national contingent of a State Party assigned to an international peace-keeping or peace-enforcement operation."
The Committee confirmed its position specifically in the context of military occupation. In response to the Israeli government's assertion that the ICCPR did not apply to its conduct in the Occupied Territories, the Committee stated that "the provisions of the Covenant apply to the benefit of the population of the Occupied Territories, for all conduct by the State party's authorities or agents in those territories that affect the enjoyment of rights enshrined in the Covenant and fall within the ambit of State responsibility of Israel under the principles of public international law."
The Committee's position was endorsed in part by the International Court of Justice in its 2004 Advisory Opinion on Legal Consequences on the Construction of a Wall in the Occupied Palestinian Territory.[5] In that case, the ICJ opined that the ICCPR, the International Covenant on Economic, Social, and Cultural Rights (ICESCR), and the Convention on the Rights of the Child applied to Israel's conduct in the Occupied Territories.
In particular, after citing the position of the Human Rights Committee, the Court found "that the [ICCPR] is applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory."However, in contrast to the Human Rights Committee's broad reference to conduct by authorities "that affect[s] the enjoyment of rights," the Court employed the more specific, and arguably circular, formulation "acts done . . . in the exercise of its jurisdiction." The Court may have intended to establish a narrower standard in this respect. The Court did not cite General Comment 31 or its "power or effective control standard," even though that Comment was adopted by the Human Rights Committee several months before the ICJ rendered its Opinion.
The Court did not provide specific guidance as to what constitutes "acts done by a State in the exercise of its jurisdiction." While the Court clearly regarded this standard as having been met in the situation of occupation, the Court did not reject the Committee's broader interpretation. Indeed the Court cited Burgos / Lopez, referring to the arrests in those cases as exercises of jurisdiction. Thus, it would appear that an exercise of jurisdiction for the purpose of applying the ICCPR does not require as a pre-condition territorial control to the extent exercised by Israel in the occupied Palestinian territory.
In contrast, the Court explicitly required territorial control to trigger application of the ICESCR. After noting that article 2 of the ICESCR does not contain a provision circumscribing the scope of states parties' obligations, the ICJ acknowledged that the rights enumerated therein are "essentially territorial."[6] Nonetheless, the court found that "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." Here the Court appears to limit more narrowly the circumstances in which the ICESCR would apply extraterritorially. Rather than referring simply to the exercise of jurisdiction, the Court seemed to require the exercise of territorial jurisdiction, which implies control over territory and not just over individuals.
The American Declaration of the Rights and Duties of Man encompasses economic and social rights as well as civil and political rights. If the Inter-American Commission follows the ICJ's approach to economic and social rights, it might decide that the Declaration should be construed as a unified whole so that even the civil and political rights should not be extended beyond a state's territorial control. The question would then be whether US forces exercised territorial control over Falluja, especially after the transfer of sovereignty to the transitional Iraqi government earlier in 2004. The situation after the transfer of sovereignty is discussed below.
Regional institutions have found human rights treaties to apply extraterritorially in some cases. The European Court of Human Rights has set forth various standards for determining whether individuals are within the jurisdiction of Contracting States (i.e. states parties) for the purpose of applying the European Convention on Human Rights to their conduct abroad. It has found the Convention to apply where a Contracting State exercises effective overall control of territory beyond its borders,[7] as well as in certain other limited circumstances where agents of that state carry out a governmental function on the territory of another state.[8]
The Inter-American Commission, whose jurisprudence is the most relevant for present purposes, has applied a somewhat lower threshold, simply requiring control over the individuals whose rights have been violated. In Coard et al. v. the United States,[9] the Commission examined allegations that the military action led by US armed forces in Grenada in October of 1983 violated a series of norms of international human rights and humanitarian law. The Commission found that the phrase 'subject to its jurisdiction' "may, under given circumstances, refer to conduct with an extraterritorial locus where the person concerned is present in the territory of one state, but subject to the control of another state - usually through the acts of the latter's agents abroad." The Commission further stated that "[i]n principle, the inquiry turns not on the presumed victim's nationality or presence within a particular geographic area, but on whether, under the specific circumstances, the State observed the rights of a person subject to its authority and control."
The Commission made clear that neither the victim's nationality nor geographic location was decisive, and set forth the criteria of authority and control over the victim. The petitioners in the present case, having been taken into custody by US forces, were clearly under the authority and control of the United States.
Notwithstanding the broad language employed by the Commission, it could be argued that certain facts in the Coard case limit the reach of its holding. Since the petitioners were placed in detention on military vessels of the United States, a finding of jurisdiction could be grounded on this fact alone. Similarly, petitioners had alleged that at the time they were arrested, the US had already consolidated its control over Grenada. It could thus be argued that it was this territorial control that enabled the Commission to find that the petitioners were under the authority and control of the US. However, the Commission made no mention of either of these facts in its analysis. A contemporaneous case confirms that this was not an oversight.
In Alejandre v. Cuba,[10] petitioners alleged that a military aircraft belonging to the Cuban Air Force shot down two unarmed civilian light airplanes resulting in the deaths of the four occupants of those airplanes. The Commission examined the evidence and found that the victims died as a consequence of direct actions taken "by agents of the Cuban State in international airspace."
In determining whether the victims were within the jurisdiction of Cuba, the Commission again cited the standard of "authority and control."[11] In this case, the victims were clearly not on Cuban territory or on any territory over which Cuba had any control. Nor were they in a Cuban vessel. Nor were their bodies subsequently brought within Cuban territory. Further, while two of the victims were Cuban born, the other two were born in the United States. Thus, nationality could not serve as the jurisdictional link between the victims and Cuba. Authority and control in this case had to be found solely in the relationship between the agents of Cuba and the victims in the circumstances at the time of the incident.
The Commission found no evidence of any communication between Cuban armed forces and the victims, or of any attempt to use other interception methods. Nor were there any indicia of control other than the fact that the Cuban military aircraft had the victims in their cross-hairs. Nonetheless, the Commission found this to constitute "conclusive evidence that agents of the Cuban State, although outside their territory, placed the civilian pilots . . . under their authority"[12] and held therefore that the victims were within the jurisdiction of Cuba for the purpose of applying its human rights obligations to the instant case. The Commission said, "In principle, the investigation refers not to the nationality of the alleged victim or his presence in a particular geographic area, but to whether, in those specific circumstances, the state observed the rights of a person subject to its authority and control." Nevertheless, it should be noted that the events took place within the Inter-American area.
Thus, the Commission has established a relatively low threshold for the extraterritorial application of Inter-American human rights law. Indeed, it is hard to imagine a situation where human rights violations perpetrated by a state agent would fail to meet this test. In any event, if the conduct of US forces in Falluja indicates a comparable or greater degree of authority and control than that present in Alejandre, it would meet the threshold required for application of the Inter-American human rights regime, subject to consideration of the regional nature of this regime as discussed below.
A related question is whether the conduct of US troops in Iraq is attributable to the United States or to Iraq.[13] It could be argued that after the Iraqi interim government was formed, the US troops were acting on its behalf. In such a case, individuals falling under the control of US troops could still be regarded as exclusively within the power of Iraq. However, the standard for attribution in such circumstances is quite high. Under the Draft Articles on State Responsibility,[14] in order for the conduct of the organ of one state (e.g. US troops) to be exclusively attributable to another, the organ must be completely at the disposal of the other state, meaning that the US troops would have to be under the exclusive control of the Iraqi government. This clearly is not the case.[15]
However, an additional question in the Falluja case, and a novel one for Inter-American institutions, is whether the human rights obligations of the Inter-American system are regionally bounded; that is, whether they apply to a Member State's extraterritorial conduct even when that State acts outside of the Americas.
Regionality
While this question has not previously been addressed in the Inter-American system, the European Court of Human Rights (ECHR) has taken the view that European human rights obligations are regionally bounded. In the Bankovic case,[16] the applicants alleged that the NATO bombing of the Belgrade radio and TV station constituted a violation of the European Convention on Human Rights. The Court noted that "the Convention was not designed to be applied throughout the world, even in respect of the conduct of Contracting States." It found that "the Convention is a multi-lateral treaty operating . . . in an essentially regional context and notably in the legal space (espace juridique) of the Contracting States." As the Federal Republic of Yugoslavia was not a party to the Convention, it did not comprise part of this legal space.
While none of its prior jurisprudence would compel the Commission to follow the approach of the European Court of Human Rights, cross-fertilization is a common phenomenon among regional institutions. In particular, the ECHR has generated the most extensive jurisprudence on the issue of extraterritorial application of human rights law, and its opinions are influential outside Europe. Thus, in the context of US forces in Iraq, the Inter-American Commission could adopt the reasoning of the European Court of Human Rights and find that the human rights obligations of the Inter-American system were designed within and for a particular region, and were not intended to make American states responsible for securing the rights of individuals throughout the world.[17] It could support this finding by pointing to the preamble of the American Convention on Human Rights, which reaffirms the "intention [of the signatory states] to consolidate in this hemisphere . . . a system of personal liberty and social justice."[18] Although the Commission would not be applying the Convention to the United States (which, as noted above, is not a party to the Convention), it could treat the Convention as an authoritative statement of the regional scope of the Inter-American human rights system.
At the same time, a number of countervailing considerations could support a finding that regional human rights obligations do apply to a state's conduct beyond regional frontiers. Chief among these is the notion of universality. Although regional human rights norms are generated and formulated within a regional framework, they purport to reflect universal principles that would apply to all human beings.[19] The focus of human rights law generally is on how states ought to behave with respect to any human being under their control. Thus, it is clearly established in the jurisprudence of all regional human rights bodies that human rights obligations apply irrespective of the nationality of the victim. As the Commission itself noted in Coard, "Given that individual rights inhere simply by virtue of a person's humanity, each American State is obliged to uphold the protected rights of any person subject to its jurisdiction."
As for the regional nature of the treaty, the Commission could find that this regionality goes to the willingness of states within the region to agree on standards they regard as essential to human dignity[20] and on a particular system of collective enforcement. If so, it might not matter where any deviation from those standards occurs, so long as the perpetrator is a state that has accepted them as basic standards of conduct.
Finally, the European Court's jurisprudence is itself in flux with respect to this issue. In Issa v. Turkey, a November 2004 judgment concerning the conduct of Turkish forces during cross-border incursions in northern Iraq, the Court indicated that once individuals come within an area under the control of a Contracting State, those individuals are deemed to be within the legal space of that state.[21] Although the court ultimately was not satisfied that the applicants' deceased relatives were within the jurisdiction of Turkey, the reason given was that they had failed to show that the decedents were actually in the area where Turkish armed forces conducted operations. This presumably would not be an issue in the case of the US seizure of the Falluja hospital. In any event, the level of control exercised by US troops in Iraq, as evidenced by their mandate and sheer number, would seem to be far greater than that exercised by the Turkish troops in Iraq.
About the author
Professor John Cerone, an ASIL member and co-chair of the ASIL Human Rights Interest Group, is Director of the Center for International Law and Policy at the New England School of Law. He is author of several publications on the issue of extraterritorial application of human rights law.
Footnotes
[1]Use of the term beneficiaries is not intended to imply that individual human beings are not rights-holders under human rights law.
[2] See, e.g., International Covenant on Civil and Political Rights (ICCPR), art. 2 ("to respect and to ensure to all individuals within its territory and subject to its jurisdiction"); European Convention on Human Rights, art. 1, ("shall secure to everyone within their jurisdiction"); American Convention on Human Rights, art. 1, ("to ensure to all persons subject to their jurisdiction"). While article 2 of the ICCPR refers to all individuals within a State's territory and subject to its jurisdiction, the Human Rights Committee has interpreted these to be independent grounds for application of the Covenant. See, e.g., Burgos/Delia Saldias de Lopez v. Uruguay, Communication No. 52/1979 (29 July 1981), U.N. Doc. CCPR/C/OP/1 at 88 (1984). The International Court of Justice endorsed this position in its Advisory Opinion on Legal Consequences on the Construction of a Wall in the Occupied Palestinian Territory, ICJ Advisory Opinion, 9 July 2004, 43 International Legal Materials 1009 (2004). At least one US court has disagreed, opining that the Covenant applies to the US only when the affected person is both within US territory and subject to its jurisdiction. US v. Duarte-Acero, 296 F.3d 1277 (11th Cir. 2002).
[3] See note 2 supra.
[4] HRC General Comment No. 31, Nature of the General Legal Obligation Imposed on States Parties to the Covenant, CCPR/C/21/Rev.1/Add.13, 26 May 2004.
[5] See note 2 supra.
[6] This approach is presumably linked to the nature of economic and social rights. In general, these rights are thought to require an expansive and more highly defined conception of the state. In situations of extraterritorial conduct, this conception is not necessarily applicable -- the full apparatus of the state is not readily available, nor is the level of control as great as that exercised by a state within its own territory.
[7] Cyprus v. Turkey, Application no. 25781/94, Judgment, 10 May 2001.
[8] Bankovic and Others v. Certain NATO Member States, Grand Chamber Decision as to the Admissibility of Application no. 52207/99, 12 December 2001. In a string of recent cases, however, the European Court has cited somewhat lower standards than those applied in Bankovic. See, e.g., Issa and Others v. Turkey, Application no. 31821/96, Judgment, 6 November 2004. As such, its jurisprudence appears to be converging with that of the Human Rights Committee and the Inter-American Commission.
[9] Coard et al. v. the United States, Case 10.951, Report No. 109/99, September 29, 1999.
[10] Alejandre et al. v. Cuba, Case 11.589, Report No. 86/99, September 29, 1999.
[11] The Commission's language was almost identical to that used in Coard. ("Because individual rights are inherent to the human being, all the American states are obligated to respect the protected rights of any person subject to their jurisdiction. Although this usually refers to persons who are within the territory of a state, in certain instances it can refer to extraterritorial actions, when the person is present in the territory of a state but subject to the control of another state, generally through the actions of that state's agents abroad.")
[12] It may be worth noting that the Commission used only the term "authority" in this context, and did not expressly find the victims to be under the "control" of Cuba. This may be interpreted to permit extraterritorial application in situations where individuals are subject to a state's authority, but are not necessarily within its control.
[13] Although there is an unfortunate tendency in human rights jurisprudence to conflate the issue of attribution with the scope of beneficiaries of human rights obligations, these are analytically distinct issues.
[14] Draft articles on the Responsibility of States for internationally wrongful acts, adopted by the International Law Commission, at its fifty-third session (2001).
[15] The simple fact that the Iraqi government consents to the presence and activities of US troops is not sufficient to attribute the conduct of those troops to Iraq. Nor does it alter the analysis of whether the victims were within the jurisdiction of the US. As explained in General Comment 31, "[t]his principle . . . applies to those within the power or effective control of the forces of a State Party acting outside its territory, regardless of the circumstances in which such power or effective control was obtained...."
[16] See note 8 supra.
[17] Such a finding would not render the US free of legal restraints or otherwise create a legal vacuum in Iraq. First, the law of armed conflict is not regionally restricted and clearly applies to the hostilities in Iraq. Further, the US is a state party to the ICCPR, which is open to participation by all states, and was thus designed to be applicable in all regions of the world. The level of control exercised by US forces in Iraq is clearly sufficient to meet the Human Rights Committee's "power or effective control" standard, and would likely also enable a finding of jurisdiction as that term is used by the ICJ. However, as the US has not become a party to the Optional Protocol to the ICCPR, the Human Rights Committee is not competent to receive complaints against the US from individuals claiming to be victims of breaches of the Covenant.
[18] Emphasis added.
[19] The preamble of the American Declaration of the Rights and Duties of Man employs the language of universality, asserting that "[a]ll men are born free and equal, in dignity and in rights." As noted above, it is the standards of the American Declaration that are applied to the US, not the American Convention.
[20] As stated in the preamble to the American Declaration, "The American States have on repeated occasions recognized that the essential rights of man are not derived from the fact that he is a national of a certain state, but are based upon attributes of his human personality."
[21] See note 8 supra. In Issa, the Court found that Turkish troops had been carrying out cross-border military operations "aimed at pursuing and eliminating terrorists who were seeking shelter in northern Iraq." The Court noted that if Turkey "could be considered to have exercised, temporarily, effective overall control of a particular portion of the territory of northern Iraq" and if it could be shown that "at the relevant time, the victims were within that specific area," then "it would follow logically that they were within the jurisdiction of Turkey (and not that of Iraq, which is not a Contracting State and clearly does not fall within the legal space (espace juridique) of the Contracting States." The Court essentially equates being within the jurisdiction of Turkey with being within the legal space of the Contracting States. This could be interpreted as relegating the legal space argument to circularity, at least in situations where Contracting States exercise a degree of territorial control.