Accountability for Extraterritorial Human Rights Violations: Evidence from the War on Terrorism and its Legacy

Human rights are equal and universal rights. Human beings are therefore entitled to their human rights irrespective of the nationality they hold and the country in which they live. Taking this cosmopolitan core of the human rights idea seriously implies that states should abstain from rights violations that harm any human being regardless of his or her nationality or place of residence. Nonetheless, while we have learned a great deal about how to attain accountability for domestic human rights violations, we know little about how to hold states that commit extraterritorial human rights violations – i.e. human rights violations against foreigners who reside outside their territory – to account. Consequently, we understand little about why and when states establish safeguards to reduce the harm they cause to foreigners abroad. Drawing on theory-testing process tracing, this paper addresses this gap by assessing the plausibility of predefined causal mechanisms in five case studies on efforts to hold the United States (US) accountable for extraterritorial human rights violations since the terror attacks on September 11th, 2001. Rights violations such as torture in Abu Ghraib, unlawful detention in Guantanamo Bay, targeted killing outside areas of armed conflict, barring refugees to apply for asylum, and mass surveillance of foreigners around the globe have been widely documented. Yet, there is little knowledge on the extent to which and the mechanisms through which the US has in recent years introduced safeguards to minimize the harm its policies inflict upon foreigners beyond its territory. We present several interesting findings: First, no single mechanism can explain why the US has introduced such safeguards. In the case of unlawful detentions, for instance, litigation by aggrieved individuals was instrumental in making authorities grant better due process protections to foreign detainees in Guantanamo Bay, whereas in other cases shaming and conditionality played a greater role. We therefore account for equifinality in that different mechanisms trigger policy change in different cases. Second, we show that in most cases the process leading to the US introducing protections for foreigners beyond their territory is too complex to be captured by a single mechanism. Rather, we observe both different mechanisms working in parallel (conjunctural mechanisms) and mechanisms triggering additional mechanisms (sequential mechanisms). Third, which mechanisms are activated and how they unfold in relation to each other depends on specific scope conditions. Shaming, for instance, which has been instrumental in prompting the Obama administration to strengthen safeguards against torture, strongly benefits from the availability of unsettling images and the ability of campaigners to assign blame directly to the perpetrator. Furthermore, sequential mechanisms are more likely to emerge if a perpetrator of extraterritorial human rights violations is insulated from direct accountability pressure but relies greatly on vulnerable third parties who may experience and subsequently forward such pressure. The paper arises from a larger project on the accountability of Western democracies for extraterritorial human rights violations and heavily leans on interviews with US decision-makers and civil society actors.