A/HRC/41/CRP.1
339. While the responsibility to protect has been invoked largely in response to threats
originating from private persons and entities (for instance in the context of preventing
domestic violence and feminicide), it may be invoked as well against threats by other States,
international organizations and foreign corporations operating within the territory of a State
or in other areas subject to their jurisdiction.279
340. This recognition is particularly important in view of the patterns identified earlier of
the extra-territorial outreach of States seeking to violate human rights violations, including
the right to life, but also the right to freedom of expression or privacy through surveillance
and harassment.
341. The extra territorial use of force is defined here as the use of potentially lethal force
by a State against an individual or a group of individuals located on the territory of another
State. Extraterritorial use of force is not a new phenomenon. It has been repeatedly invoked
in the name of “self-defense” and countering “terrorism” and is the object of many legal
analyses which are beyond the focus of this annual report 280. Previous Special Rapporteurs
have thoroughly analysed the extraterritorial use of force including targeted killings through
drones.281 For the purpose of a report on the responsibility to protect and warn, the following
aspects of extra territorial use of force will be highlighted.
342. First, it is important to highlight and insist that Article 2 (4) of the Charter of the United
Nations and customary international law prohibit the threat or use of inter-State force, subject
to limited exceptions: consent and self-defense. A State may consent to the use of force on its
territory by another State, while the UN Charter allows action taken in self-defence.
343. Outside these narrowly defined conditions, the use of force extra territorially is
unlawful under international law governing intra-states relationship. It is also unlawful under
international human rights law in that a State party cannot perpetrate violations of its
obligations on the territory of another State, which it could not perpetrate on its own
territory282. That human rights treaty obligations apply to the conduct of a State outside its
territory has been confirmed by, among others, the International Court of Justice, the Human
Rights Committee, the Inter-American Commission on Human Rights and the European
Court of Human Rights283.
344. Further, customary law prohibits states from sending their agents to the territory of
another state to execute their own laws or policies: “This ban on the extraterritorial
enforcement of a state’s laws or policies comes from international law’s basic rules on
jurisdiction. While states enjoy jurisdiction to prescribe laws governing some conduct beyond
their borders—e.g., by their own nationals—and states can use their courts to adjudicate
matters taking place abroad, enforcement of a state’s laws or policies on another state’s
territory without the permission of the other state is unlawful. 284 ”The jurisprudence on
rendition and extraordinary rendition further suggests that the obligation to protect against
acts by foreign States may be invoked whether or not these foreign States acted with the
acquiescence or agreement of the receiving State285.
279
280
281
282
283
284
285
GC36, para 22
For an in-depth review of the jurisprudence, State positions and academic literature see for instance:
Noam Lubell, Extraterritorial use of force against Non-State actors, Oxford: Oxford University Press,
2010; Jan Arno Hessbruegge, Human Rights and Personal Self-Defense in International Law, Oxford
University Press, 2017.
See for instance A/68/382; A/HRC/1424 Add.6
A/68/382
See for instance Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, para. 109; General comment No. 31 (2004), on the nature of the general legal obligation
imposed on States parties, para. 10; Coard and others v. United States, case 10.951, Report No.
109/99, 29 September 1999, para. 37’ Al-Skeini and others v. the United Kingdom, application No.
55721/07, Grand Chamber judgement of 7 July 2011, paras 106-186;
https://www.lawfareblog.com/khashoggi-murder-how-mohammed-bin-salman-underestimatedinternational-law
Concluding Observations Poland (2010), para 15. The Human Rights Committee has also ruled that
to surrender a prisoner knowingly to another State where there are substantial grounds for believing
that he would be in danger of being tortured, runs counter to the object and purpose of the prohibition
67
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