How exactly does the prohibition on arbitrary deprivation of life—under international human rights law—apply to U.S. military operations conducted in foreign countries? Many readers will immediately think this question is nonsensical. On their view, the U.S. government does not recognize that international human rights law applies “extra-territorially” (beyond U.S. borders). That view is mistaken.
The view is correct to the extent that it applies strictly to the official U.S. position concerning jurisdictional provisions of some human rights treaties, like the International Covenant on Civil and Political Rights. But it’s erroneous to think the same applies to the United States’ recognition of the extraterritorial application of customary international law.
Consider how one thinks about an online series, which Just Security has now completed, on the United Nations Human Rights Committee’s recent articulation of Article 6 (the right to life) of the International Covenant on Civil and Political Rights. Aspects of the Committee’s analysis, contained in General Comment 36, also relate to customary international human rights law. So do the commentaries published by Just Security in the series. Indeed, it is impossible to think about some issues involving the right to life under customary international law without knowing how authorities like the U.N. Human Rights Committee understand the scope and limitations of the right. If the U.S. government recognizes that customary international human rights law applies extraterritorially, then the discussion of the U.N. Human Rights Committee’s interpretation of the right to life assumes greater practical and legal relevance.
As I wrote in 2014 at Just Security, the U.S. government has, time and again, supported the extraterritorial application of human rights law—as a matter of customary international law. Clear examples include U.S. criticisms of the Soviet Union and Iraq. In the early 1980s in the wake of the Soviet Union’s incursion into Afghanistan, the State Department’s Annual Human Rights reports deplored “Soviet practices in Afghanistan which violated human rights.” In the early 1990s, the State Department condemned Iraq’s “abysmal record of repression of human rights” in its treatment of foreign nationals and civilians inside Kuwait. The list goes on, and on.
The most recent State Department annual reports, for example, criticize Iran and Russia for their responsibility for human rights violations in foreign countries. The report on Iran states, “The country materially contributed to human rights abuses in Syria, through its military support for Syrian president Bashar al-Assad and for Hizballah forces there, as well as in Iraq, through its aid to certain Iraqi Shia militia groups.” The report on Russia states, “The country played a significant military role in conflicts in eastern Ukraine and Syria, where human rights organizations attributed thousands of civilian deaths as well as other human rights abuses to Russian-led forces and Russian occupation authorities in Crimea.”
Finally, the U.S. military’s 2018 Operational Law Handbook is clear on the distinction between treaties and customary international law. It states:
“In contrast to much of human rights treaty law, fundamental customary IHRL [international human rights law] binds a State’s forces during all operations, both inside and outside the State’s territory.”
What may confuse some readers are texts—such as the Department of Defense Law of War Manual (2016) and a textbook, The Law of Armed Conflict: An Operational Approach (2018)—that elide this difference. In discussing sources of international law applicable to U.S. armed forces, these texts describe the U.S. government’s view that some human rights treaties do not apply extraterritorially. That’s fine and well. But these texts do not discuss the extraterritorial application of customary international human rights law. That’s misguided, and does not fully inform readers of the U.S. approach.
Turning back to the right to life specifically, the Operational Law Handbook also makes clear that human rights obligations that apply beyond U.S. borders include jus cogens obligations (described by the Handbook as “norms so fundamental and universally accepted that they do not permit any derogation, even by treaty”), as well as other customary human rights obligations. The Handbook states that the former includes the prohibition on arbitrary deprivation of life such as “murder/causing disappearance of individuals.”
In the opening to the Just Security series on General Comment 36, I interviewed two of the UN body’s members, Christof Heyns and the Committee’s rapporteur for the General Comment, Yuval Shany. I posed questions hoping to deepen public understanding of the General Comment especially on topics involving national security law and policy. Heyns and Shany’s answers provide a highly valuable elaboration of the ideas articulated in the General Comment. The General Comment, the exchange with Heyns and Shany and commentaries on this topic are of great relevance to U.S. activities, as the United States currently understands its legal obligations as a matter of customary international law, and as the debate over whether the Covenant itself applies extraterritorially continues.