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Extraterritorial application of European human rights law to military action

The United Kingdom’s new Supreme Court has just rejected a claim by the mother of a deceased military serviceman that her son’s death while on duty in Iraq, pursuant to alleged negligence on the part of his superiors, violated the European Convention on Human Rights (ECHR). The British court held that the ECHR did not apply. The Smith family now plans to appeal to the European Court of Human Rights (ECtHR) in Strasbourg. Two noteworthy elements of the Smith case are, of course, (1) the effort to apply ECHR rights extraterritorially, and (2) the effort to regulate wartime conduct by a national government in particular. The New York Times has the story.

Here’s a thought experiment: try to imagine the U.S. Supreme Court, or any court, ever holding that international human rights law renders the United States liable for the death of its military personnel overseas or, indeed, for any kind of wartime conduct overseas.

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