Exercise of Extra-Territorial Jurisdiction - Essay Example

International human rights law Insert (s) International human rights law  Extraterritorial Application of Human Rights The exercise of Extra-territorial jurisdiction is generally defined as the application of the court’s power or government authority beyond the territorial boundaries of a particular state. A good example is the Long-Arm statute which gives power to states to exercise legal authority other defendants beyond their territorial limits. In most cases, the authority of any given government to exercise extraterritorial jurisdiction in other states and countries can only be realized through legal agreements with the authorities covering the particular states. In most cases, the application of extraterritorial jurisdiction statutes often becomes necessary to regulate the conduct of the state agents in another territory if their conducts have an impact on the national interests of their country of origin (Ovey and Robin, 2006, p.25). With regard to international laws, there are cases where extraterritorial jurisdiction has been exercised beyond international boundaries particularly under agreement between the concerned parties or nations. These legal agreements allow the US government to exercise authority and jurisdiction over the members of the US military in these countries. Many other countries have also enacted laws and signed agreements with other countries to allow them prosecute their citizens in other countries for crimes such as genocide, frauds and war crimes among others. This is often practiced regardless of whether the crimes were committed extraterritorially or in their mother countries. For example, the UK government has incorporated the Rome statute act into their domestic laws. This legislation allows criminal cases to be filed against UK nationals who commit crimes in other countries. In this regard, such criminals can be prosecuted according to the standards of the UK laws even if their countries of residences do not have such laws. Evaluation of the ECtHR Grand Chamber decision in Al-Skeini v. U.K Al-Skeini v. U.K was a case involving the investigation of a complaint in which the British troops had allegedly mistreated and killed five Iraqi civilians and maimed the sixth one. Consequently, the families of the victims sought justice from the European Commission on human rights. One of the major controversies surrounding the case was the question of whether the case was within the jurisdiction of the ECHR since crimes were committed outside the United Kingdom. Although the previous jurisprudence had always sought to limit the extraterritorial jurisdiction of the European countries in the other areas they control, the ECtHR Grand Chamber courts ruled that since the UK had occupied the Basra region in which the crimes were committed, they were fully responsible for the security of that region and, therefore, extraterritorial jurisdiction was applicable. The ECtHR Grand Chamber also rejected the claim by the UK government that ECHR jurisdiction was not applicable arguing that when a country exercises authority over another territory, they assume the jurisdiction over the people of that region (Provost, 2002, p.6).The ECtHR, therefore, based their ruling on the article 1 of ECHR constitution which talks about the obligation to protect as well the possible UK violation of Article 2 (right to life) for their failure to investigate the crimes committed by their soldiers. After the ECtHR Grand Chamber overruled the ruling of the UK House of Lords, many people expected that the outcome of the case would have been the recognition of the British jurisdiction based on the spatial model with regard to the fact that they were completely in control of the Basra region in Iraq when the crimes against the six individuals were committed by their soldiers. On the contrary, the court used a mix of both the spatial and the personal model of jurisdiction in their determination of the outcome of the case. For example, the ECtHR considered the fact that victims were right within the jurisdiction of the British courts’ jurisdiction. This was because the British had authority as well as some level of public powers in the Basra region at the crimes was committed. Apart from introducing new model of extraterritorial application of human rights by combining the use of personal and spatial models, the decision of the ECtHR Grand Chamber to overrule the ruling of the British House of Lords also provided a new dimension in the judgment regarding the application of the concept of public powers. According to Buergenthal, Shelton and Stewart (2009, p.34), the Grand Chambers’ decision was one of the landmark cases which have facilitated the universal application of international laws on matters related to human rights. The prohibition of torture and other ill-treatment According to the principles of international human rights law, torture, cruel, degrading and inhuman treatment are absolutely prohibited without any exceptions allowed. This was particularly realized after the ban was enshrined in the humanitarian Geneva conventions as well as several United Nations human rights treaties. Similarly, Article 3 of the ECHR prohibits torture and other forms of degrading treatment regardless of whether such acts are undertaken for counterterrorism or even if they are in the best interest of the society. In this regard, the victim’s nature of conduct is irrelevant and it does not matter even if the victim is suspected of engaging in terrorist activities or being a member of a criminal gang. Generally there are absolutely no circumstances were States may be legally allowed under international law to torture or mistreat individuals (Janis, Kay and Bradley, 1995, p.38). During the Case of Selmouni V. France, the ruling by ECtHR court was largely based on a number of facts which were considered to be degrading and inhuman treatment rather than torture (Harris, 1998, p.634). The case was about a Moroccan national known as Ahmed Selmouni who filed a complaint after being tortured, racially abused and ill treated at police custody in France. Although the French courts had initially rejected his complaints on the basis that he had not exhausted the domestic remedies regarding his case, the ECtHR courts overruled the decision of French courts and proceeded with Selmouni’s case. The courts also took into consideration the required standards in human rights protection as well as the universal fundamental values common in all democratic societies. Selmouni was eventually awarded compensation of 500,000 francs. The case of Gafgen Vs Germany is another recent judgment which highlights the fact that international human rights laws do not allow any circumstances or exceptions in which States may be allowed to torture or mistreat individuals. The judgment was carried out on a case in which security forces subjected the complainant to a number of threats after being suspected of abducting a child. During the interrogations, the applicant was also tortured as part of the attempts by the security officers to make him confess where he had hidden the child he allegedly abducted. In its ruling, the ECtHR court emphasized that torture, degrading and inhuman treatment are absolutely prohibited without any exceptions allowed. Consequently, the fact that the tortures were carried out to make the suspect confess the whereabouts of the abducted child was considered to be irrelevant in the ruling by ECtHR. Torture Evidence There are a number of correlations between the breaches of the ECHR Article 3 and the breaches of ECHR Article 6 with regard to the use of evidence in trials whereby the suspects were tortured and ill treated to force them into confession. This is particularly with regard to the fact that both Article 3 and Article 6 of the European Commission of Human Rights seek to protect the dignity and integrity of the suspects. For example, according to Article 3 of the convention, no individual should be subjected to degrading treatment and torture under any circumstance. Consequently, the use of physical force or other methods that may be used in attempts to make the suspects confess any information is an infringement of their human dignity and such evidence are rendered invalid. Such breaches often occur in the police custody where interrogations and interviews are usually conducted (Brownlie and Goodwin-Gill, 2002, p.56). In this regard, ECtHR requires countries should ensure that their legal systems provide the necessary safe guards to protect suspects from such treatments during interrogations. In the case of Gafgen Vs Germany, the security forces subjected Mr. Gafgen to a number of threats after being suspected of abducting a child. During the interrogations, the applicant was also tortured as part of the attempts by the security officers to make him confess where he had hidden the child he allegedly abducted. ECtHR argued that the evidence gathered from the investigation could not be used since they were not properly taken as required by international human rights laws and the rights of Mr. Gafgen had been violated. Finally in the case of Othman (Abu Qatada) v UK, the complainant Mr. Omar Othman was detained in England after being suspected of having close links with the outlawed Al-Qaeda terror group. This was, however, despite the fact that Mr. Othman had initially sought asylum in UK and was granted to live in the country at the time of his arrest and detention. Although the UK courts rejected his appeals against deportation, ECtHR overruled the decision of the British courts while citing Articles 3 and 6. References Brownlie, I., and Goodwin-Gill, G. S., 2002. Basic Documents on Human Rights. 4th ed. Oxford: Oxford Press. Buergenthal, T., Shelton, D. and Stewart, D., 2009. International Human Rights in a Nutshell. 4th Ed. St. Paul: West group publishers. Harris, D. J., 1998. Cases and Materials in International Law. London: Sweet & Maxwell. pp. 624-764. Janis, M. W., Kay, R. S. and Bradley, A. W., 1995. European Human Rights Law: Text and Materials. Oxford: Clarendon Press. Ovey, C. W. and Robin, C. A., 2006. Jacobs & White: The European Convention on Human Rights (4th ed.). London: Oxford University Press. Provost, R., 2002. International human rights and humanitarian law. Cambridge: Cambridge University Press. pp. 5-11. Read More