Andenas & Bjorge: Human Rights and Acts By Troops Abroad: Rights and Jurisdictional Restrictions

Mads Andenas (Univ. of Oslo - Law) & Eirik Bjorge (Univ. of Oxford - Law) have posted Human Rights and Acts By Troops Abroad: Rights and Jurisdictional Restrictions (European Public Law, Vol. 18, No. 3, 2012). Here's the abstract:

Jurisdiction and immunity have tempered the emergence of human rights and remedies. They are often the first line of defense for authorities when a new area is brought in under judicial review.

Government acts abroad, and in particular acts of war and occupation, are perhaps the last frontier. The recent judgments by the Grand Chamber of the European Court of Human Rights in Al-Skeini and Al-Jedda rejected Government claims of lack of jurisdiction and attribution of acts by British soldiers to the UN instead of to the United Kingdom, which would have resulted in an effective immunity for the acts concerned, which included murder, torture, and arbitrary detention. The UK courts applied a restrictive jurisdictional principle with extra-territorial application only in narrowly defined exceptional categories, of which the House of Lords used only one.

The European Court, however, enumerated circumstances which go so much further that they no longer constitute exceptions but a return to the principle that the European Convention is fully capable of extra-territorial application. The incremental application of this general principle in a new area brought before the Court in the cases, and the gradual rejection of Government defenses that previously had been accepted under special circumstances of the interventions in the former Yugoslavia in the 1990s, are not surprising, and the outcome in Al-Skeini and Al-Jedda is difficult to criticize.