Human rights abroad
Why the Strasbourg court upheld a case against the UK arising out of its occupation of Iraqi territory
In Al-Skeini v United Kingdom (Application no 55721/07, 7 July 2011), the Grand Chamber of the European Court of Human Rights held that jurisdiction under article 1 of the ECHR (duty to respect human rights) could be applied to British-occupied Iraqi territory.
The case was brought by relatives of six civilians killed between May and November 2003 in Basrah, three of whom were directly shot by British soldiers. Of the other three, one was shot during a firefight between British soldiers and unknown gunmen, one was arrested by British soldiers, beaten up and forced into the waters of the Shatt Al-Arab, where he drowned, and the sixth victim died whilst in custody of the British Army. The applicants averred that at the time of death, their relatives were within the jurisdiction of the UK under article 1 of the Convention and that, apart from the sixth case, the UK had not complied with its investigative duty under article 2 (judgment, para 95).
The Secretary of State for Defence had decided, in March 2004, not to conduct independent inquiries into the deaths (along with seven others), not to accept liability for the deaths, and not to pay just satisfaction. The Government maintained that the ECHR did not apply to these cases as jurisdiction under article 1 was territorial in nature, and that any extension was “exceptional” and required “special justification in the particular circumstances of the case” (para 109).
The court concurred that a “state’s jurisdictional competence under article 1 is primarily territorial”, but noted that its case law had recognised a number of exceptions which could give rise to the “exercise of jurisdiction of a contracting state outside its own territorial boundaries” (paras 131, 132). It went on to note exceptions relating to state agent authority and control, such as diplomatic and consular agents acting overseas; situations where authorities of a contracting state carry out executive or judicial functions on the territory of another state; and the use of force by state agents operating outside its territory, such as when an individual is taken into the custody of state agents abroad (Öcalan v Turkey, no 46221/99 (2005) ), or when individuals are detained in extraterritorial military prisons (Al-Saadoon and Mufdhi v United Kingdom, no 61498/08 (2009): two Iraqis in British-controlled military prisons in Iraq fell within UK jurisdiction, since the UK exercised total and exclusive control), or where state agents exercise full and exclusive control over a ship and its crew in international waters (Medvedyev v France, no 3394/03 (2010)).
The court stated that whenever a state through its agents exercised control and authority over an individual, and thus jurisdiction, it was clear that it was under an obligation under article 1 to secure to that individual their ECHR rights (para 137).
Exceptions to territorial jurisdiction were also assessed when a state has effective control over an area. “Effective control” is determined principally by the strength of the state’s military presence, but other factors such as “the extent to which its military, economic and political support for the local subordinate administration provides it with influence and control over the region” can be considered (para 139). Where a state does have “effective control” over an area, it does not matter whether the acts in question have been carried out directly by that state’s agents or through subordinate local administration.
In respect of the present claims the court noted that the UK came to be an occupying power in May 2003 following an invasion of Iraq to remove the Ba’ath regime from power. Having done so, the UK and the USA formed a Coalition Provisional Authority (CPA) that was to “exercise powers of government temporarily” (letter of 8 May 2003 to the President of the UN Security Council from the Permanent Representatives of the UK and the USA). As part of this exercise of powers, the CPA assumed control of security in Iraq, a role recognised in Security Council resolution 1483. During this period, which ended in June 2004, the UK was in control of security for the south east region of which Al-Basrah is a province.
The court found (para 149) that by taking on these governmental powers, and in particular responsibility for the maintenance of security, the UK’s occupation fell into the category of exceptional circumstances. Through its soldiers engaged in security operations in Basrah, the UK exercised authority and control over individuals killed in the course of such operations, and thus the court established a jurisdictional link for the purposes of article 1 between the UK and all six deceased.
The court went on to find a violation of article 2 concerning the lack of an effective investigation into the deaths of the relatives of the first to fifth applicants.
Sarah Mennie, Scottish Human Rights Law Group