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GRAND
CHAMBER
CASE OF AL-SKEINI AND OTHERS v. THE UNITED KINGDOM
(Application
no. 55721/07)
JUDGMENT
STRASBOURG
7 July
2011
This
judgment is final but may be subject to editorial revision.
TABLE OF CONTENTS
Page
In the case of Al-Skeini and
Others v. the United Kingdom,
The
European Court of Human Rights, sitting as a Grand Chamber composed
of:
Jean-Paul Costa,
President,
Christos
Rozakis,
Nicolas
Bratza,
Françoise
Tulkens,
Josep
Casadevall,
Dean
Spielmann,
Giovanni
Bonello,
Elisabeth
Steiner,
Lech
Garlicki,
Ljiljana
Mijović,
David
Thór Björgvinsson,
Isabelle
Berro-Lefèvre,
George
Nicolaou,
Luis
López Guerra,
Ledi
Bianku,
Ann
Power,
Mihai
Poalelungi, judges,
and
Michael
O’Boyle,
Deputy Registrar,
Having
deliberated in private on 9 and 16 June 2010 and 15 June 2011,
Delivers
the following judgment, which was adopted on that last date:
PROCEDURE
- The
case originated in an application (no. 55721/07) against the United
Kingdom of Great Britain and Northern Ireland lodged with the Court
under Article 34 of the Convention for the Protection of Human Rights
and Fundamental Freedoms (“the Convention”) by six Iraqi
nationals, Mr Mazin Jum’Aa Gatteh Al-Skeini, Ms Fattema Zabun
Dahesh, Mr Hameed Abdul Rida Awaid Kareem, Mr Fadil Fayay Muzban,
Mr Jabbar Kareem Ali and Colonel Daoud Mousa (“the
applicants”), on 11 December 2007.
- The
applicants, who had been granted legal aid, were represented by
Public Interest Lawyers, solicitors based in Birmingham. The United
Kingdom Government (“the Government”) were represented by
their Agent, Mr D. Walton, Foreign and Commonwealth Office.
- The
applicants alleged that their relatives fell within United Kingdom
jurisdiction when killed and that there had been no effective
investigation into the deaths, in breach of Article 2 of the
Convention.
- The
application was allocated to the Fourth Section of the Court (Rule 52
§ 1 of the Rules of Court). On 16 December 2008 the Court
decided to give notice of the application to the Government. It also
decided to examine the merits of the application at the same time as
its admissibility (Article 29 § 1). The parties took turns to
file written observations on the admissibility and merits of the
case. On 19 January 2010 the Chamber decided to relinquish
jurisdiction to the Grand Chamber.
- The
composition of the Grand Chamber was determined according to the
provisions of Article 27 §§ 2 and 3 of the Convention and
Rule 24 of the Rules of Court. Judge Peer Lorenzen, President of the
Fifth Section, withdrew and Judge Luis López Guerra,
substitute judge, replaced him.
- The
applicants and the Government each filed a further memorial on the
admissibility and merits and joint third-party comments were received
from the Bar Human Rights Committee, the European Human Rights
Advocacy Centre, Human Rights Watch, Interights and the International
Federation for Human Rights (“the interveners”).
- A
hearing took place in public in the Human Rights Building,
Strasbourg, on 9 June 2010 (Rule 59 § 3).
There appeared before the Court:
(a) for the Government
Mr D.
Walton, Agent,
Mr J. Eadie
QC,
Ms C. Ivimy,
Mr S.
Wordsworth, Counsel,
Ms L. Dann,
Ms H.
Akiwumi, Advisers;
(b) for
the applicants
Mr Rabinder Singh QC,
Mr R. Husain
QC,
Ms S.
Fatima,
Ms N. Patel,
Mr T.
Tridimas,
Ms H. Law,
Counsel,
Mr P.
Shiner,
Mr D. Carey,
Ms T.
Gregory,
Mr J.
Duffy, Advisers.
The
Court heard addresses by Mr Eadie and Mr Singh.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
facts of the case may be summarised as follows.
A. The occupation of Iraq 1 May 2003 to 28 June 2004
1. Background: United Nations Security Council
Resolution 1441
- On
8 November 2002 the United Nations Security Council, acting under
Chapter VII of the United Nations Charter, adopted Resolution 1441.
The Resolution decided, inter alia, that Iraq had been and
remained in material breach of its obligations under previous United
Nations Security Council Resolutions to disarm and to cooperate with
United Nations and International Atomic Energy Agency weapons
inspectors. Resolution 1441 decided to afford Iraq a final
opportunity to comply with its disarmament obligations and set up an
enhanced inspection regime. It requested the Secretary-General
immediately to notify Iraq of the resolution and demanded that Iraq
cooperate immediately, unconditionally, and actively with the
inspectors. Resolution 1441 concluded by recalling that the Security
Council had “repeatedly warned Iraq that it will face serious
consequences as a result of its continued violations of its
obligations”. The Security Council decided to remain seized of
the matter.
2. Major combat operations: 20 March-1 May 2003
- On
20 March 2003 a coalition of armed forces under unified command, led
by the United States of America with a large force from the United
Kingdom and small contingents from Australia, Denmark and Poland,
commenced the invasion of Iraq. By 5 April 2003 the British had
captured Basrah and by 9 April 2003 United States troops had gained
control of Baghdad. Major combat operations in Iraq were declared
complete on 1 May 2003. Thereafter, other States sent personnel
to help with the reconstruction effort.
3. Legal and political developments in May 2003
- On
8 May 2003 the Permanent Representatives of the United Kingdom and
the United States at the United Nations addressed a joint letter to
the President of the United Nations Security Council, which read as
follows:
“The United States of America, the United Kingdom
of Great Britain and Northern Ireland and Coalition partners continue
to act together to ensure the complete disarmament of Iraq of weapons
of mass destruction and means of delivery in accordance with United
Nations Security Council resolutions. The States participating in the
Coalition will strictly abide by their obligations under
international law, including those relating to the essential
humanitarian needs of the people of Iraq. We will act to ensure that
Iraq’s oil is protected and used for the benefit of the Iraqi
people.
In order to meet these objectives and obligations in the
post-conflict period in Iraq, the United States, the United Kingdom
and Coalition partners, acting under existing command and control
arrangements through the Commander of Coalition Forces, have created
the Coalition Provisional Authority, which includes the Office of
Reconstruction and Humanitarian Assistance, to exercise powers of
government temporarily, and, as necessary, especially to provide
security, to allow the delivery of humanitarian aid, and to eliminate
weapons of mass destruction.
The United States, the United Kingdom and Coalition
partners, working through the Coalition Provisional Authority, shall
inter alia, provide for security in and for the provisional
administration of Iraq, including by: deterring hostilities;
maintaining the territorial integrity of Iraq and securing Iraq’s
borders; securing, and removing, disabling, rendering harmless,
eliminating or destroying (a) all of Iraq’s weapons of mass
destruction, ballistic missiles, unmanned aerial vehicles and all
other chemical, biological and nuclear delivery systems and (b) all
elements of Iraq’s programme to research, develop, design,
manufacture, produce, support, assemble and employ such weapons and
delivery systems and subsystems and components thereof, including but
not limited to stocks of chemical and biological agents,
nuclear-weapon-usable material, and other related materials,
technology, equipment, facilities and intellectual property that have
been used in or can materially contribute to these programmes; in
consultation with relevant international organizations, facilitating
the orderly and voluntary return of refugees and displaced persons;
maintaining civil law and order, including through encouraging
international efforts to rebuild the capacity of the Iraqi civilian
police force; eliminating all terrorist infrastructure and resources
within Iraq and working to ensure that terrorists and terrorist
groups are denied safe haven; supporting and coordinating demining
and related activities; promoting accountability for crimes and
atrocities committed by the previous Iraqi regime; and assuming
immediate control of Iraqi institutions responsible for military and
security matters and providing, as appropriate, for the
demilitarization, demobilization, control, command, reformation,
disestablishment, or reorganization of those institutions so that
they no longer pose a threat to the Iraqi people or international
peace and security but will be capable of defending Iraq’s
sovereignty and territorial integrity.
The United States, the United Kingdom and Coalition
partners recognize the urgent need to create an environment in which
the Iraqi people may freely determine their own political future. To
this end, the United States, the United Kingdom and Coalition
partners are facilitating the efforts of the Iraqi people to take the
first steps towards forming a representative government, based on the
rule of law, that affords fundamental freedoms and equal protection
and justice under law to the people of Iraq without regard to
ethnicity, religion or gender. The United States, the United Kingdom
and Coalition partners are facilitating the establishment of
representative institutions of government, and providing for the
responsible administration of the Iraqi financial sector, for
humanitarian relief, for economic reconstruction, for the transparent
operation and repair of Iraq’s infrastructure and natural
resources, and for the progressive transfer of administrative
responsibilities to such representative institutions of government,
as appropriate. Our goal is to transfer responsibility for
administration to representative Iraqi authorities as early as
possible.
The United Nations has a vital role to play in providing
humanitarian relief, in supporting the reconstruction of Iraq, and in
helping in the formation of an Iraqi interim authority. The United
States, the United Kingdom and Coalition partners are ready to work
closely with representatives of the United Nations and its
specialized agencies and look forward to the appointment of a special
coordinator by the Secretary-General. We also welcome the support and
contributions of Member States, international and regional
organizations, and other entities, under appropriate coordination
arrangements with the Coalition Provisional Authority.
We would be grateful if you could arrange for the
present letter to be circulated as a document of the Security
Council.
(Signed) Jeremy Greenstock Permanent
Representative of the United Kingdom
(Signed) John D. Negroponte Permanent
Representative of the United States”
- As
mentioned in the above letter, the occupying States, acting through
the Commander of Coalition Forces, created the Coalition Provisional
Authority to act as a “caretaker administration” until an
Iraqi government could be established. It had power, inter alia,
to issue legislation. On 13 May 2003 the United States Secretary for
Defence, Donald Rumsfeld, issued a memorandum formally appointing
Ambassador Paul Bremer as Administrator of the Coalition Provisional
Authority with responsibility for the temporary governance of Iraq.
In CPA Regulation No. 1, dated 16 May 2003, Ambassador
Bremer provided as follows:
“Pursuant to my authority as Administrator of the
Coalition Provisional Authority (CPA), relevant U.N. Security Council
resolutions, including Resolution 1483 (2003), and the laws and
usages of war, I hereby promulgate the following:
Section 1
The Coalition Provisional Authority
1) The CPA shall exercise powers of government
temporarily in order to provide for the effective administration of
Iraq during the period of transitional administration, to restore
conditions of security and stability, to create conditions in which
the Iraqi people can freely determine their own political future,
including by advancing efforts to restore and establish national and
local institutions for representative governance and facilitating
economic recovery and sustainable reconstruction and development.
2) The CPA is vested with all executive, legislative and
judicial authority necessary to achieve its objectives, to be
exercised under relevant U.N. Security Council resolutions, including
Resolution 1483 (2003), and the laws and usages of war. This
authority shall be exercised by the CPA Administrator.
3) As the Commander of Coalition Forces, the Commander
of U.S. Central Command shall directly support the CPA by deterring
hostilities; maintaining Iraq’s territorial integrity and
security; searching for, securing and destroying weapons of mass
destruction; and assisting in carrying out Coalition policy
generally.
Section 2
The Applicable Law
Unless suspended or replaced by the CPA or superseded by
legislation issued by democratic institutions of Iraq, laws in force
in Iraq as of April 16, 2003 shall continue to apply in Iraq insofar
as the laws do not prevent the CPA from exercising its rights and
fulfilling its obligations, or conflict with the present or any other
Regulation or Order issued by the CPA. ...”
- The
Coalition Provisional Authority administration was divided
into regional areas. CPA South was placed under United Kingdom
responsibility and control, with a United Kingdom Regional
Coordinator. It covered the southernmost four of Iraq’s
eighteen provinces, each having a governorate coordinator. United
Kingdom troops were deployed in the same area. The United
Kingdom was represented at Coalition Provisional Authority
headquarters through the office of the United Kingdom Special
Representative. According to the Government, although the United
Kingdom Special Representative and his office sought to influence
Coalition Provisional Authority policy and decisions, United
Kingdom personnel had no formal decision-making power within the
Authority. All the Coalition Provisional Authority’s
administrative and legislative decisions were taken by Ambassador
Bremer.
- The
United Nations Security Council Resolution 1483 referred to by
Ambassador Bremer in Coalition Provisional Authority Regulation No. 1
was actually adopted six days later, on 22 May 2003. It provided
as follows:
“The Security Council,
Recalling all its previous relevant resolutions,
Reaffirming the sovereignty and territorial
integrity of Iraq,
Reaffirming also the importance of the
disarmament of Iraqi weapons of mass destruction and of eventual
confirmation of the disarmament of Iraq,
Stressing the right of the Iraqi people freely to
determine their own political future and control their own natural
resources, welcoming the commitment of all parties concerned to
support the creation of an environment in which they may do so as
soon as possible, and expressing resolve that the day when Iraqis
govern themselves must come quickly,
Encouraging efforts by the people of Iraq to form
a representative government based on the rule of law that affords
equal rights and justice to all Iraqi citizens without regard to
ethnicity, religion, or gender, and, in this connection, recalls
resolution 1325 (2000) of 31 October 2000,
...
Welcoming the first steps of the Iraqi people in
this regard, and noting in this connection the 15 April 2003
Nasiriyah statement and the 28 April 2003 Baghdad statement,
Resolved that the United Nations should play a
vital role in humanitarian relief, the reconstruction of Iraq, and
the restoration and establishment of national and local institutions
for representative governance,
...
Noting the letter of 8 May 2003 from the
Permanent Representatives of the United States of America and the
United Kingdom of Great Britain and Northern Ireland to the President
of the Security Council (S/2003/538) and recognizing the specific
authorities, responsibilities, and obligations under applicable
international law of these states as occupying powers under unified
command (the ‘Authority’),
Noting further that other States that are not
occupying powers are working now or in the future may work under the
Authority,
Welcoming further the willingness of Member
States to contribute to stability and security in Iraq by
contributing personnel, equipment, and other resources under the
Authority,
Concerned that many Kuwaitis and Third -State
Nationals still are not accounted for since 2 August 1990,
Determining that the situation in Iraq, although
improved, continues to constitute a threat to international peace and
security,
Acting under Chapter VII of the Charter of the
United Nations,
1. Appeals to Member States and concerned
organizations to assist the people of Iraq in their efforts to reform
their institutions and rebuild their country, and to contribute to
conditions of stability and security in Iraq in accordance with this
resolution;
2. Calls upon all Member States in a position to
do so to respond immediately to the humanitarian appeals of the
United Nations and other international organizations for Iraq and to
help meet the humanitarian and other needs of the Iraqi people by
providing food, medical supplies, and resources necessary for
reconstruction and rehabilitation of Iraq’s economic
infrastructure;
3. Appeals to Member States to deny safe haven to
those members of the previous Iraqi regime who are alleged to be
responsible for crimes and atrocities and to support actions to bring
them to justice;
4. Calls upon the Authority, consistent with the
Charter of the United Nations and other relevant international law,
to promote the welfare of the Iraqi people through the effective
administration of the territory, including in particular working
towards the restoration of conditions of security and stability and
the creation of conditions in which the Iraqi people can freely
determine their own political future;
5. Calls upon all concerned to comply fully with
their obligations under international law including in particular the
Geneva Conventions of 1949 and the Hague Regulations of 1907;
...
8. Requests the Secretary-General to appoint a
Special Representative for Iraq whose independent responsibilities
shall involve reporting regularly to the Council on his activities
under this resolution, coordinating activities of the United Nations
in post-conflict processes in Iraq, coordinating among United Nations
and international agencies engaged in humanitarian assistance and
reconstruction activities in Iraq, and, in coordination with the
Authority, assisting the people of Iraq through:
(a) coordinating humanitarian and reconstruction
assistance by United Nations agencies and between United Nations
agencies and non-governmental organizations;
(b) promoting the safe, orderly, and voluntary return of
refugees and displaced persons;
(c) working intensively with the Authority, the people
of Iraq, and others concerned to advance efforts to restore and
establish national and local institutions for representative
governance, including by working together to facilitate a process
leading to an internationally recognized, representative government
of Iraq;
(d) facilitating the reconstruction of key
infrastructure, in cooperation with other international
organizations;
(e) promoting economic reconstruction and the conditions
for sustainable development, including through coordination with
national and regional organizations, as appropriate, civil society,
donors, and the international financial institutions;
(f) encouraging international efforts to contribute to
basic civilian administration functions;
(g) promoting the protection of human rights;
(h) encouraging international efforts to rebuild the
capacity of the Iraqi civilian police force; and
(i) encouraging international efforts to promote legal
and judicial reform;
9. Supports the formation, by the people of Iraq
with the help of the Authority and working with the Special
Representative, of an Iraqi interim administration as a transitional
administration run by Iraqis, until an internationally recognized,
representative government is established by the people of Iraq and
assumes the responsibilities of the Authority;
...
24. Requests the Secretary-General to report to
the Council at regular intervals on the work of the Special
Representative with respect to the implementation of this resolution
and on the work of the International Advisory and Monitoring Board
and encourages the United Kingdom of Great Britain and
Northern Ireland and the United States of America to inform the
Council at regular intervals of their efforts under this resolution;
25. Decides to review the implementation of this
resolution within twelve months of adoption and to consider further
steps that might be necessary.
26. Calls upon Member States and international
and regional organizations to contribute to the implementation of
this resolution;
27. Decides to remain seized of this matter.”
5. Developments between July 2003 and June 2004
- In
July 2003 the Governing Council of Iraq was established. The
Coalition Provisional Authority was required to consult with it on
all matters concerning the temporary governance of Iraq.
- On
16 October 2003 the United Nations Security Council passed a further
resolution, 1511, which provided inter alia as follows:
“The Security Council
...
Underscoring that the sovereignty of Iraq resides
in the State of Iraq, reaffirming the right of the Iraqi people
freely to determine their own political future and control their own
natural resources, reiterating its resolve that the day when Iraqis
govern themselves must come quickly, and recognizing the importance
of international support, particularly that of countries in the
region, Iraq’s neighbours, and regional organizations, in
taking forward this process expeditiously,
Recognizing that international support for
restoration of conditions of stability and security is essential to
the well-being of the people of Iraq as well as to the ability of all
concerned to carry out their work on behalf of the people of Iraq,
and welcoming Member State contributions in this regard under
resolution 1483 (2003),
Welcoming the decision of the Governing Council
of Iraq to form a preparatory constitutional committee to prepare for
a constitutional conference that will draft a constitution to embody
the aspirations of the Iraqi people, and urging it to complete this
process quickly,
...
Determining that the situation in Iraq, although
improved, continues to constitute a threat to international peace and
security,
Acting under Chapter VII of the Charter of the
United Nations,
1. Reaffirms the sovereignty and territorial
integrity of Iraq, and underscores, in that context, the temporary
nature of the exercise by the Coalition Provisional Authority
(Authority) of the specific responsibilities, authorities, and
obligations under applicable international law recognized and set
forth in resolution 1483 (2003), which will cease when an
internationally recognized, representative government established by
the people of Iraq is sworn in and assumes the responsibilities of
the Authority, inter alia through steps envisaged in
paragraphs 4 through 7 and 10 below;
...
4. Determines that the Governing Council and its
ministers are the principal bodies of the Iraqi interim
administration, which, without prejudice to its further evolution,
embodies the sovereignty of the State of Iraq during the transitional
period until an internationally recognized, representative government
is established and assumes the responsibilities of the Authority;
5. Affirms that the administration of Iraq will
be progressively undertaken by the evolving structures of the Iraqi
interim administration;
6. Calls upon the Authority, in this context, to
return governing responsibilities and authorities to the people of
Iraq as soon as practicable and requests the Authority, in
cooperation as appropriate with the Governing Council and the
Secretary-General, to report to the Council on the progress being
made;
7. Invites the Governing Council to provide to
the Security Council, for its review, no later than 15 December 2003,
in cooperation with the Authority and, as circumstances permit, the
Special Representative of the Secretary-General, a timetable and a
programme for the drafting of a new constitution for Iraq and for the
holding of democratic elections under that constitution;
8. Resolves that the United Nations, acting
through the Secretary-General, his Special Representative, and the
United Nations Assistance Mission in Iraq, should strengthen its
vital role in Iraq, including by providing humanitarian relief,
promoting the economic reconstruction of and conditions for
sustainable development in Iraq, and advancing efforts to restore and
establish national and local institutions for representative
government;
...
13. Determines that the provision of security and
stability is essential to the successful completion of the political
process as outlined in paragraph 7 above and to the ability of the
United Nations to contribute effectively to that process and the
implementation of resolution 1483 (2003), and authorizes a
multinational force under unified command to take all necessary
measures to contribute to the maintenance of security and stability
in Iraq, including for the purpose of ensuring necessary conditions
for the implementation of the timetable and programme as well as to
contribute to the security of the United Nations Assistance Mission
for Iraq, the Governing Council of Iraq and other institutions of the
Iraqi interim administration, and key humanitarian and economic
infrastructure;
14. Urges Member States to contribute assistance
under this United Nations mandate, including military forces, to the
multinational force referred to in paragraph 13 above;
15. Decides that the Council shall review the
requirements and mission of the multinational force referred to in
paragraph 13 above not later than one year from the date of this
resolution, and that in any case the mandate of the force shall
expire upon the completion of the political process as described in
paragraphs 4 through 7 and 10 above, and expresses readiness to
consider on that occasion any future need for the continuation of the
multinational force, taking into account the views of an
internationally recognized, representative government of Iraq;
...
25. Requests that the United States, on behalf of
the multinational force as outlined in paragraph 13 above, report to
the Security Council on the efforts and progress of this force as
appropriate and not less than every six months;
26. Decides to remain seized of the matter.”
- On
8 March 2004 the Governing Council of Iraq promulgated the Law of
Administration for the State of Iraq for the Transitional Period
(known as the “Transitional Administrative Law”). This
provided a temporary legal framework for the administration of Iraq
for the transitional period which was due to commence by 30 June 2004
with the establishment of an interim Iraqi government (“the
Interim Government”) and the dissolution of the Coalition
Provisional Authority.
- Provision
for the new regime was made in United Nations Security Council
Resolution 1546, adopted on 8 June 2004, which provided inter
alia, that the Security Council, acting under Chapter VII of the
United Nations Charter:
“1. Endorses the formation of a sovereign
Interim Government of Iraq, as presented on 1 June 2004, which will
assume full responsibility and authority by 30 June 2004 for
governing Iraq while refraining from taking any actions affecting
Iraq’s destiny beyond the limited interim period until an
elected Transitional Government of Iraq assumes office as envisaged
in paragraph four below;
2. Welcomes that, also by 30 June 2004, the
occupation will end and the Coalition Provisional Authority will
cease to exist, and that Iraq will reassert its full sovereignty;
...
8. Welcomes ongoing efforts by the incoming
Interim Government of Iraq to develop Iraqi security forces including
the Iraqi armed forces (hereinafter referred to as ‘Iraqi
security forces’), operating under the authority of the Interim
Government of Iraq and its successors, which will progressively play
a greater role and ultimately assume full responsibility for the
maintenance of security and stability in Iraq;
9. Notes that the presence of the multinational
force in Iraq is at the request of the incoming Interim Government of
Iraq and therefore reaffirms the authorization for the
multinational force under unified command established under
resolution 1511 (2003), having regard to the letters annexed to this
resolution;
10. Decides that the multinational force shall
have the authority to take all necessary measures to contribute to
the maintenance of security and stability in Iraq in accordance with
the letters annexed to this resolution expressing, inter alia, the
Iraqi request for the continued presence of the multinational force
and setting out its tasks, including by preventing and deterring
terrorism, so that, inter alia, the United Nations can fulfil its
role in assisting the Iraqi people as outlined in paragraph seven
above and the Iraqi people can implement freely and without
intimidation the timetable and programme for the political process
and benefit from reconstruction and rehabilitation activities; ...”
6. The transfer of authority to the Interim Government
- On
28 June 2004 full authority was transferred from the Coalition
Provisional Authority to the Interim Government and the Coalition
Provisional Authority ceased to exist. Subsequently the
Multi-National Force, including the British forces forming part of
it, remained in Iraq pursuant to requests by the Iraqi Government and
authorisations from the United Nations Security Council.
B. United Kingdom armed forces in Iraq May 2003 to June
2004
- During
this period the Coalition Forces consisted of six divisions that were
under the overall command of United States’ generals. Four were
United States divisions and two were multinational. Each division was
given responsibility for a particular geographical area in Iraq. The
United Kingdom was given command of the Multinational Division (South
East), which comprised the provinces of Al-Basrah, Maysan, Thi Qar
and Al Muthanna, an area of 96,000 square kilometres with a
population of 4.6 million. There were 14,500 Coalition troops,
including 8,150 United Kingdom troops, stationed in Multinational
Division (South East). The main theatre for operations by United
Kingdom forces in Multinational Division (South East) were the
Al-Basrah and Maysan provinces, with a total population of about 2.75
million people. Just over 8,000 British troops were deployed there,
of whom just over 5,000 had operational responsibilities.
- From
1 May 2003 onwards British forces in Iraq carried out two main
functions. The first was to maintain security in the Multinational
Division (South East) area, in particular in Al-Basrah and Maysan
provinces. The principal security task was the effort to re-establish
the Iraqi security forces, including the Iraqi police. Other tasks
included patrols, arrests, anti-terrorist operations, policing of
civil demonstrations, protection of essential utilities and
infrastructure and protecting police stations. The second main
function of British troops was the support of the civil
administration in Iraq in a variety of ways, from liaison with the
Coalition Provisional Authority and Governing Council of Iraq and
local government, to assisting with the rebuilding of the
infrastructure.
- In
the Aitken Report (see paragraph 69 below), prepared on behalf of the
Army Chief of General Staff, the post-conflict situation in Iraq was
described as follows:
“The context in which operations have been
conducted in Iraq has been exceptionally complex. It is not for this
report to comment on the jus ad bellum aspects of the operation, nor
of the public’s opinions of the invasion. It is, however,
important to note that the Alliance’s post-invasion plans
concentrated more on the relief of a humanitarian disaster (which did
not, in the event, occur on anything like the scale that had been
anticipated), and less on the criminal activity and subsequent
insurgency that actually took place. One consequence of that was that
we had insufficient troops in theatre to deal effectively with the
situation in which we found ourselves. Peace support operations
require significantly larger numbers of troops to impose law and
order than are required for prosecuting a war: ours were very thinly
spread on the ground. In his investigation (in April 2005) of the
Breadbasket incident [alleged abuse of Iraqis detained on suspicion
of looting humanitarian aid stores], Brigadier Carter described
conditions in Iraq thus:
‘... May 2003, some 4 weeks or so after British
Forces had started to begin the transition from offensive operations
to stabilisation. The situation was fluid. Battlegroups had been
given geographic areas of responsibility based generally around their
initial tactical objectives. Combat operations had officially ended,
and rules of engagement had changed to reflect this, but there was a
rising trend of shooting incidents. Although these were principally
between Iraqis, seeking to settle old scores or involved in criminal
activity, there were early indications that the threat to British
soldiers was developing ... The structure of the British Forces was
changing. Many of the heavier capabilities that had been required for
the invasion were now being sent home. Some Force elements were
required for operations elsewhere, and there was pressure from the UK
to downsize quickly to more sustainable numbers ... Local attitudes
were also changing. Initially ecstatic with happiness, the formerly
downtrodden Shia population in and around Basra had become
suspicious, and by the middle of May people were frustrated.
Aspirations and expectations were not being met. There was no Iraqi
administration or governance. Fuel and potable water were in short
supply, electricity was intermittent, and the hospitals were full of
wounded from the combat operations phase. Bridges and key routes had
been destroyed by Coalition bombing. Law and order had completely
collapsed. The Iraqi Police Service had melted away; the few security
guards who remained were old and incapable; and the Iraqi Armed
Forces had been captured, disbanded or deserted. Criminals had been
turned out onto the streets and the prisons had been stripped. The
judiciary were in hiding. Every government facility had been raided
and all loose items had been removed. Insecure buildings had been
occupied by squatters. Crime was endemic and in parts of Basra a
state of virtual anarchy prevailed. Hijackings, child kidnappings,
revenge killings, car theft and burglary were rife. In a very short
space of time wealth was being comprehensively redistributed.’
In this environment, the British Army was the sole agent
of law and order within its area of operations. When the Association
of Chief Police Officers’ lead for international affairs, Mr
Paul Kernaghan, visited Iraq in May 2003, he said that he would not
recommend the deployment of civilian police officers to the theatre
of operations due to the poor security situation. The last time the
Army had exercised the powers of an Army of Occupation was in 1945 –
and it had spent many months preparing for that role; in May 2003,
the same soldiers who had just fought a high intensity,
conventional war were expected to convert, almost overnight, into the
only people capable of providing the agencies of government and
humanitarian relief for the people of Southern Iraq. Battlegroups
(comprising a Lieutenant Colonel and about 500 soldiers) were
allocated areas of responsibilities comprising hundreds of square
miles; companies (a Major with about 100 men under command) were
given whole towns to run. The British invasion plans had wisely
limited damaging as much of the physical infrastructure as possible;
but with only military personnel available to run that
infrastructure, and very limited local staff support, the task placed
huge strains on the Army.
One of the effects of this lack of civil infrastructure
was the conundrum British soldiers faced when dealing with routine
crime. Our experience in Northern Ireland, and in peace support
operations around the world, has inculcated the clear principle of
police primacy when dealing with criminals in operational
environments. Soldiers accept that they will encounter crime, and
that they will occasionally be required to arrest those criminals;
but (despite some experience of this syndrome in Kosovo in 1999) our
doctrine and practice had not prepared us for dealing with those
criminals when there was no civil police force, no judicial system to
deal with offenders, and no prisons to detain them in. Even when a
nascent Iraqi police force was re-established in 2003, troops on the
ground had little confidence in its ability to deal fairly or
reasonably with any criminals handed over to it. In hindsight, we now
know that some soldiers acted outside the law in the way they dealt
with local criminals. However diligent they were, commanders were
unable to be everywhere, and so were physically unable to supervise
their troops to the extent that they should; as a result, when those
instances did occur, they were less likely to be spotted and
prevented.”
- United
Kingdom military records show that, as at 30 June 2004, there had
been approximately 178 demonstrations and 1,050 violent attacks
against Coalition forces in Multinational Division (South East) since
1 May 2003. The violent attacks consisted of five anti-aircraft
attacks, 12 grenade attacks, 101 attacks using improvised explosive
devices, 52 attempted attacks using improvised explosive devices, 145
mortar attacks, 147 rocket propelled grenade attacks, 535 shootings
and 53 others. The same records show that, between May 2003 and March
2004, 49 Iraqis were known to have been killed in incidents in which
British troops used force.
C. The Rules of Engagement
- The
use of force by British troops during operations is covered by the
appropriate Rules of Engagement. The Rules of Engagement governing
the use of lethal force by British troops in Iraq during the relevant
period was the subject of guidance contained in a card issued to
every soldier, known as Card Alpha. Card Alpha set out the Rules of
Engagement in the following terms:
“CARD A – GUIDANCE FOR OPENING FIRE FOR
SERVICE PERSONNEL
AUTHORISED TO CARRY ARMS AND AMMUNITION ON DUTY
GENERAL GUIDANCE
1. This guidance does not affect your inherent right to
self-defence. However, in all situations you are to use no more force
than absolutely necessary.
FIREARMS MUST ONLY BE USED AS A LAST RESORT
2. When guarding property, you must not use lethal
force other than for the protection of human life.
PROTECTION OF HUMAN LIFE
3. You may only open fire against a person if he/she is
committing or about to commit an act likely to endanger life and
there is no other way to prevent the danger.
CHALLENGING
4. A challenge MUST
be given before opening fire unless:
a. To do this would be to increase the risk of death or
grave injury to you or any other persons other than the attacker(s),
OR
b. You or others in the immediate vicinity are under
armed attack.
5. You are to challenge by shouting:
‘NAVY, ARMY, AIR FORCE, STOP
OR I FIRE.’
Or words to that effect.
OPENING FIRE
6. If you have to open fire you are to:
a. Fire only aimed shots,
AND
b. Fire no more rounds than are necessary,
AND
c. Take all reasonable precautions not to injure anyone
other than your target.”
D. Investigations into Iraqi civilian deaths involving
British soldiers
1. The decision to refer an incident for investigation
by the Royal Military Police
- On
21 June 2003 Brigadier Moore (Commander of the 19 Mechanised
Brigade in Iraq from June to November 2003) issued a formal policy on
the investigation of shooting incidents. This policy provided that
all shooting incidents were to be reported and the Divisional Provost
Marshall was to be informed. Non-commissioned officers from the Royal
Military Police were then to evaluate the incident and decide whether
it fell within the Rules of Engagement. If it was decided that the
incident did come within the Rules of Engagement, statements were to
be recorded and a completed bulletin submitted through the chain of
command. If the incident appeared to fall outside the Rules of
Engagement and involved death or serious injury, the investigation
was to be handed to the Royal Military Police, Special Investigation
Branch (see paragraph 28 below) by the Divisional Provost Marshall at
the earliest opportunity.
- However,
Brigadier Moore decided that from 28 July 2003 this policy should be
revised. The new policy required that all such incidents should be
reported immediately by the soldier involved to Multinational
Division (South East) by means of a Serious Incident Report. There
would then be an investigation into the incident by the Company
Commander or the soldier’s Commanding Officer. In his evidence
to the domestic courts Brigadier Moore explained that:
“The form of an investigation into an incident
would vary according to the security situation on the ground and the
circumstances of the individual case. Generally, it would involve the
Company Commander or Commanding Officer taking statements from the
members of the patrol involved, and reviewing radio logs. It might
also include taking photographs of the scene. Sometimes there would
be further investigation through a meeting with the family/tribe of
the person killed. Investigations at unit level, however, would not
include a full forensic examination. Within the Brigade, we had no
forensic capability.”
If
the Commanding Officer was satisfied, on the basis of the information
available to him, that the soldier had acted lawfully and within the
Rules of Engagement, there was no requirement to initiate an
investigation by the Special Investigation Branch. The Commanding
Officer would record his decision in writing to Brigadier Moore. If
the Commanding Officer was not so satisfied, or if he had
insufficient information to arrive at a decision, he was required to
initiate an Special Investigation Branch investigation.
- Between
January and April 2004 there was a further reconsideration of this
policy, prompted by the fact that the environment had become less
hostile and also by the considerable media and Parliamentary interest
in incidents involving United Kingdom forces in which Iraqis had
died. On 24 April 2004 a new policy was adopted by the Commander
of Multinational Division (South East), requiring all shooting
incidents involving United Kingdom forces which resulted in a
civilian being killed or injured to be investigated by the Special
Investigation Branch. In exceptional cases the Brigade Commander
could decide that an investigation was not necessary. Any such
decision had to be notified to the Commander of Multinational
Division (South East) in writing.
2. Investigation by the Royal Military Police (Special
Investigations Branch)
- The
Royal Military Police form part of the Army and deploy with the Army
on operations abroad, but have a separate chain of command. Military
police officers report to the Provost Marshall, who reports to the
Adjutant General. Within the Royal Military Police, the Special
Investigation Branch is responsible for the investigation of serious
crimes committed by members of the British forces while on service,
incidents involving contact between the military and civilians and
any special investigations tasked to it, including incidents
involving civilian deaths caused by British soldiers. To secure their
practical independence on operations, the Special Investigation
Branch deploy as entirely discrete units and are subject to their own
chain of command, headed by Provost Officers who are deployed on
operations for this purpose.
- Investigations
into Iraqi civilian deaths involving British soldiers were triggered
either by the Special Investigation Branch being asked to investigate
by the Commanding Officer of the units concerned or by the Special
Investigation Branch on its own initiative, when it became aware of
an incident by other means. However, the latter type of investigation
could be terminated if the Special Investigation Branch was
instructed to stop by the Provost Marshall or the Commanding Officer
of the unit involved.
- Special
Investigation Branch investigations in Iraq were hampered by a number
of difficulties such as security problems, lack of interpreters,
cultural considerations (for example, the Islamic practice requiring
a body to be buried within 24 hours and left undisturbed for 40
days), the lack of pathologists and post-mortem facilities, the lack
of records, problems with logistics, the climate and general working
conditions. The Aitken Report (see paragraph 69 below) summarised the
position as follows:
“It was not only the combat troops who were
overstretched in these circumstances. The current military criminal
justice system is relevant, independent, and fit for purpose; but
even the most effective criminal justice system will struggle to
investigate, advise on and prosecute cases where the civil
infrastructure is effectively absent. And so, in the immediate
aftermath of the ground war, the Service Police faced particular
challenges in gathering evidence of a quality that would meet the
very high standards required under English law. National records –
usually an integral reference point for criminal investigations –
were largely absent; a different understanding of the law between
Iraqi people and British police added to an atmosphere of hostility
and suspicion; and the Army was facing an increasingly dangerous
operational environment – indeed, on 24 June 2003, six members
of the Royal Military Police were killed in Al Amarah. Local customs
similarly hampered the execution of British standards of justice: in
the case of Nadhem Abdullah, for instance, the family of the deceased
refused to hand over the body for forensic examination –
significantly reducing the quality of evidence surrounding his
death.”
The
Aitken Report also referred to the problems caused to the Special
Investigation Branch, when attempting to investigate serious
allegations of abuse, by the sense of loyalty to fellow soldiers
which could lead to a lack of co-operation from Army personnel and to
what the judge in the court martial concerning the killing of
the sixth applicant’s son had described as a “wall of
silence” from some of the military witnesses called to give
evidence.
- On
conclusion of a Special Investigation Branch investigation, the
Special Investigation Branch officer would report in writing to the
Commanding Officer of the unit involved. Such a report would include
a covering letter and a summary of the evidence, together with copies
of any documentary evidence relevant to the investigation in the form
of statements from witnesses and investigators. The report would not
contain any decision as to the facts or conclusions as to what had
happened. It was then for the Commanding Officer to decide whether or
not to refer the case to the prosecuting authority for possible trial
by court-martial.
- The
Aitken Report (dated 25 January 2008: see paragraph 69 below)
commented on the prosecution of armed forces personnel in connection
with the death of Iraqi civilians, as follows:
“Four cases involving Iraqi deaths as a result of
deliberate abuse have been investigated, and subsequently referred to
the Army Prosecuting Authority (APA) on the basis there was a prima
facie case that the victims had been killed unlawfully by British
troops. The APA preferred charges on three of these cases on the
basis that it considered there was a realistic prospect of
conviction, and that trial was in the public and service interest;
and yet not one conviction for murder or manslaughter has been
recorded.
The Army’s position is straightforward on the
issue of prosecution. Legal advice is available for commanding
officers and higher authorities to assist with decisions on referring
appropriate cases to the APA. The Director Army Legal Services
(DALS), who is responsible to the Adjutant General for the provision
of legal services to the Army, is additionally appointed by The Queen
as the APA. In that capacity, he has responsibility for decisions on
whether to direct trial for all cases referred by the military chain
of command, and for the prosecution of all cases tried before
courts martial, the Standing Civilian Court and the Summary
Appeal Court and for appeals before the Courts-Martial Appeal Court
and the House of Lords. DALS delegates these functions to ALS
officers appointed as prosecutors in the APA, and Brigadier
Prosecutions has day to day responsibility for the APA. The APA is
under the general superintendence of the Attorney-General and is,
rightly, independent of the Army chain of command: the APA alone
decides whether to direct court-martial trial and the appropriate
charges, and neither the Army chain of command, nor Ministers,
officials nor anyone else can make those decisions. However complex
the situation in which it finds itself, the Army must operate within
the law at all times; once the APA has made its decision (based on
the evidence and the law), the Army has to accept that the
consequences of prosecuting particular individuals or of particular
charges may have a negative impact on its reputation.
The absence of a single conviction for murder or
manslaughter as a result of deliberate abuse in Iraq may appear
worrying, but it is explicable. Evidence has to be gathered (and, as
already mentioned, this was not an easy process); that evidence has
to be presented in court; and defendants are presumed innocent unless
the prosecution can prove its case beyond reasonable doubt. That is a
stiff test – no different to the one that applies in our
civilian courts. In the broader context, the outcome from
prosecutions brought to court martial by the APA is almost exactly
comparable with the equivalent civilian courts: for example, as at
the end of 2006, the conviction rates after trial in the court
martial system stood at 12% as compared with 13% in the Crown Courts.
It is inevitable that some prosecutions will fail; but this does not
mean that they should not have been brought in the first place. It is
the courts, after all, that determine guilt, not the prosecutors.
Indeed, the fact that only a small number of all the 200-odd cases
investigated by Service Police in Iraq resulted in prosecution could
be interpreted as both a positive and a negative indicator: positive,
in that the evidence and the context did not support the preferring
of criminal charges; but negative, in that we know that the Service
Police were hugely hampered, in some cases, in their ability to
collect evidence of a high enough standard for charges to be
preferred or for cases to be successfully prosecuted.
It is important to note that none of this implies any
fundamental flaws in the effectiveness of the key elements of the
Military Criminal Justice System. Both the Special Investigation
Branch of the Royal Military Police (RMP(SIB)) and the APA were
independently inspected during 2007. The Police inspection reported
that ‘...Her Majesty’s Inspectorate of Constabulary
assess the RMP(SIB) as having the capability and capacity to run a
competent level 36 (serious criminal) reactive investigation’;
and the inspection of the APA in February and March 2007 by Her
Majesty’s Crown Prosecution Service Inspectorate concluded
that: ‘...the APA undertakes its responsibilities in a thorough
and professional manner, often in difficult circumstances’,
adding that 95.7% of decisions to proceed to trial were correct on
evidential grounds, and 100% of decisions to proceed to trial were
properly based on public or Service interest grounds.”
E. The deaths of the applicants’ relatives
- The
following accounts are based on the witness statements of the
applicants and the British soldiers involved in each incident. These
statements were also submitted to the domestic courts and, as regards
all but the fifth applicant, summarised in their judgments
(particularly the judgment of the Divisional Court).
1. The first applicant
- The
first applicant is the brother of Hazim Jum’aa Gatteh Al-Skeini
(“Hazim Al-Skeini”), who was 23 at the time of his death.
Hazim Al-Skeini was one of two Iraqis from the Beini Skein tribe who
were shot dead in the Al-Majidiyah area of Basrah just before
midnight on 4 August 2003 by Sergeant A, the commander of a British
patrol.
- In
his witness statement, the first applicant explained that, during the
evening in question, various members of his family had been gathering
at a house in Al-Majidiyah for a funeral ceremony. In Iraq it is
customary for guns to be discharged at a funeral. The first applicant
stated that he was engaged in receiving guests at the house, as they
arrived for the ceremony, and saw his brother fired upon by British
soldiers as he was walking along the street towards the house.
According to the first applicant, his brother was unarmed and only
about ten metres away from the soldiers when he was shot and killed.
Another man with him was also killed. He had no idea why the soldiers
opened fire.
- According
to the British account of the incident, the patrol, approaching on
foot and on a very dark night, heard heavy gunfire from a number of
different points in Al-Majidiyah. As the patrol got deeper into the
village they came upon two Iraqi men in the street. One was about
five metres from Sergeant A, who was leading the patrol. Sergeant A
saw that he was armed and pointing the gun in his direction. In the
dark, it was impossible to tell the position of the second man.
Believing that his life and those of the other soldiers in the patrol
were at immediate risk, Sergeant A opened fire on the two men without
giving any verbal warning.
- The
following day, Sergeant A produced a written statement describing the
incident. This was passed to the Commanding Officer of his battalion,
Colonel G, who took the view that the incident fell within the Rules
of Engagement and duly wrote a report to that effect. Colonel G sent
the report to Brigade, where it was considered by Brigadier Moore.
Brigadier Moore queried whether the other man had been pointing his
gun at the patrol. Colonel G wrote a further report that dealt with
this query to Brigadier Moore’s satisfaction. The original
report was not retained in Brigade records. Having considered Colonel
G’s further report, as did his deputy chief of staff and his
legal adviser, Brigadier Moore was satisfied that the actions of
Sergeant A fell within the Rules of Engagement and so he did not
order any further investigation.
- On
11, 13 and 16 August 2003 Colonel G met with members of the dead
men’s tribe. He explained why Sergeant A had opened fire and
gave the tribe a charitable donation of 2,500 dollars (USD) from the
British Army Goodwill Payment Committee, together with a letter
explaining the circumstances of the deaths and acknowledging that the
deceased had not intended to attack anyone.
2. The
second applicant
- The
second applicant is the widow of Muhammad Salim, who was shot and
fatally wounded by Sergeant C shortly after midnight on 6 November
2003.
- The
second applicant was not present when her husband was shot and her
evidence was based on what she was told by those who were present.
She stated that on 5 November 2003, during Ramadan, Muhammad Salim
went to visit his brother-in-law at his home in Basrah. At about
11.30 p.m. British soldiers raided the house. They broke down
the front door. One of the British soldiers came face-to-face with
the second applicant’s husband in the hall of the house and
fired a shot at him, hitting him in the stomach. The British soldiers
took him to the Czech military hospital, where he died on 7 November
2003.
- According
to the British account of the incident, the patrol had received
information from an acquaintance of one of their interpreters that a
group of men armed with long-barrelled weapons, grenades and rocket-
propelled grenades had been seen entering the house. The order was
given for a quick search-and-arrest operation. After the patrol
failed to gain entry by knocking, the door was broken down. Sergeant
C entered the house through the front door with two other soldiers
and cleared the first room. As he entered the second room he heard
automatic gunfire from within the house. When Sergeant C moved
forward into the next room by the bottom of the stairs, two men armed
with long barrelled weapons rushed down the stairs towards him. There
was no time to give a verbal warning. Sergeant C believed that his
life was in immediate danger. He fired one shot at the leading man,
the second applicant’s husband, and hit him in the stomach. He
then trained his weapon on the second man who dropped his gun. The
applicant’s family subsequently informed the patrol that they
were lawyers and were in dispute with another family of lawyers over
the ownership of office premises, which had led to their being
subjected to two armed attacks which they had reported to the police,
one three days before and one only thirty minutes before the patrol’s
forced entry.
- On
6 November 2003 the Company Commander produced a report of the
incident. He concluded that the patrol had deliberately been provided
with false intelligence by the other side in the feud. Having
considered the report and spoken to the Company Commander, Colonel G
came to the conclusion that the incident fell within the Rules of
Engagement and did not require any further Special Investigation
Branch investigation. He therefore produced a report to that effect
the same day and forwarded it to Brigade, where it was considered by
Brigadier General Jones. Brigadier Jones discussed the matter with
his deputy chief of staff and his legal adviser. He also discussed
the case with his political adviser. As a result, Brigadier Jones
also concluded that it was a straightforward case that fell within
the Rules of Engagement and duly issued a report to that effect. The
applicant, who had three young children and an elderly mother-in-law
to support, received USD 2,000 from the British Army Goodwill
Payment Committee, together with a letter setting out the
circumstances of the killing.
3. The third applicant
- The
third applicant is the widower of Hannan Mahaibas Sadde Shmailawi,
who was shot and fatally wounded on 10 November 2003 at the Institute
of Education in the Al-Maaqal area of Basrah, where the third
applicant worked as a night porter and lived with his wife and
family.
- According
to the third applicant’s witness statement, at about 8 p.m. on
the evening in question, he and his family were sitting round the
dinner table when there was a sudden burst of machine-gunfire from
outside the building. Bullets struck his wife in the head and ankles
and one of his children on the arm. The applicant’s wife and
child were taken to hospital, where his child recovered but his wife
died.
- According
to the British account of the incident, the third applicant’s
wife was shot during a fire-fight between a British patrol and a
number of unknown gunmen. When the area was illuminated by parachute
flares, at least three men with long-barrelled weapons were seen in
open ground, two of whom were firing directly at the British
soldiers. One of the gunmen was shot dead during this exchange of
fire with the patrol. After about seven to ten minutes the firing
ceased and armed people were seen running away. A woman (the third
applicant’s wife) with a head injury and a child with an arm
injury were found when the buildings were searched. Both were taken
to hospital.
- The
following morning, the Company Commander produced a report concerning
the incident, together with statements from the soldiers involved.
After he had considered the report and statements, Colonel G came to
the conclusion that the incident fell within the Rules of Engagement
and did not require any further Special Investigation Branch
investigation. He duly produced a report to that effect, which he
then forwarded to Brigade. The report was considered by Brigadier
Jones, who also discussed the matter with his deputy chief of staff,
his legal adviser and Colonel G. As a result, Brigadier Jones came to
the conclusion that the incident fell within the Rules of Engagement
and required no further investigation.
4. The fourth applicant
- The
fourth applicant is the brother of Waleed Sayay Muzban, aged 43,
who was shot and fatally injured on the night of 24 August 2003 by
Lance Corporal S in the Al-Maqaal area of Basrah.
- The
fourth applicant was not present when his brother was shot, but he
claims that the incident was witnessed by his neighbours. In his
witness statement he stated that his understanding was that his
brother was returning home from work at about 8.30 p.m. on the
evening in question. He was driving a minibus along a street called
Souq Hitteen, near where he and the fourth applicant lived. For no
apparent reason, according to the applicant’s statement, the
minibus “came under a barrage of bullets”, as a result of
which Waleed was mortally wounded in the chest and stomach.
- Lance
Corporal S was a member of a patrol carrying out a check around the
perimeter of a Coalition military base (Fort Apache), where three
Royal Military Police officers had been killed by gunfire from a
vehicle the previous day. According to the British soldier’s
account of the incident, Lance Corporal S became suspicious of a
minibus, with curtains over its windows, that was being driven
towards the patrol at a slow speed with its headlights dipped. When
the vehicle was signalled to stop, it appeared to be trying to evade
the soldiers so Lance Corporal S pointed his weapon at the driver and
ordered him to stop. The vehicle then stopped and Lance Corporal S
approached the driver’s door and greeted the driver (the fourth
applicant’s brother). The driver reacted in an aggressive
manner and appeared to be shouting over his shoulder to people in the
curtained-off area in the back of the vehicle. When Lance Corporal S
tried to look into the back of the vehicle, the driver pushed him
away by punching him in the chest. The driver then shouted into the
back of the vehicle and made a grab for Lance Corporal S’s
weapon. Lance Corporal S had to use force to pull himself free. The
driver then accelerated away, swerving in the direction of various
other members of the patrol as he did so. Lance Corporal S fired at
the vehicle’s tyres and it came to a halt about 100 metres from
the patrol. The driver turned and again shouted into the rear of the
vehicle. He appeared to be reaching for a weapon. Lance Corporal S
believed that his team was about to be fired on by the driver and
others in the vehicle. He therefore fired about five aimed shots. As
the vehicle sped off, Lance Corporal S fired another two shots at the
rear of the vehicle. After a short interval, the vehicle
screeched to a halt. The driver got out and shouted at the British
soldiers. He was ordered to lie on the ground. The patrol then
approached the vehicle to check for other armed men. The vehicle
proved to be empty. The driver was found to have three bullet wounds
in his back and hip. He was given first aid and then taken to the
Czech military hospital where he died later that day or the following
day.
- The
Special Investigation Branch commenced an investigation on 29 August
2003. The investigators recovered fragments of bullets, empty bullet
cases and took digital photographs of the scene. The vehicle was
recovered and transported to the United Kingdom. The deceased’s
body had been returned to the family for burial and no post mortem
had been carried out, so the Special Investigation Branch took
statements from the two Iraqi surgeons who had operated on him. A
meeting was arranged with the family to seek their consent for an
exhumation and post mortem, but this was delayed. Nine military
witnesses involved in the incident were interviewed and had
statements taken and a further four individuals were interviewed but
found to have no evidence to offer. Lance Corporal S was not,
however, questioned. Since he was suspected by the Special
Investigation Branch of having acted contrary to the Rules of
Engagement, it was Special Investigation Branch practice not to
interview him until there was enough evidence to charge him. A
forensic examination was carried out at the scene on 6 September
2003.
- On
29 August 2003 Colonel G sent his initial report concerning the
incident to Brigadier Moore. In it he stated that he was satisfied
that Lance Corporal S believed that he was acting lawfully within the
Rules of Engagement. However, Colonel G went on to express the view
that it was a complex case that would benefit from a Special
Investigation Branch investigation. After Brigadier Moore had
considered Colonel G’s report, discussed the matter with his
Deputy Chief of Staff and taken legal advice, it was decided that the
matter could be resolved with a unit-level investigation, subject to
a number of queries being satisfactorily answered. As a result,
Colonel G produced a further report dated 12 September 2003, in
which he dealt with the various queries and concluded that a Special
Investigation Branch investigation was no longer required. After
discussing the matter again with his Deputy Chief of Staff and having
taken further legal advice, Brigadier Moore concluded that the case
fell within the Rules of Engagement.
- By
this stage, Brigadier Moore had been informed that the Special
Investigation Branch had commenced an investigation into the
incident. On 17 September 2003 Colonel G wrote to the Special
Investigation Branch asking them to terminate the investigation. The
same request was made by Brigadier Moore through his Chief of Staff
during a meeting with the Senior Investigating Officer from the
Special Investigation Branch. The Special Investigation Branch
investigation was terminated on 23 September 2003. The deceased’s
family received USD 1,400 from the British Army Goodwill Payment
Committee and a further USD 3,000 in compensation for the minibus.
- Following
the fourth applicant’s application for judicial review
(see paragraph 73 below), the case was reviewed by senior
investigation officers in the Special Investigation Branch and the
decision was taken to re-open the investigation. The investigation
was recommenced on 7 June 2004 and completed on 3 December
2004, despite difficulties caused by the very dangerous conditions in
Iraq at that time.
- On
completing the investigation the Special Investigation Branch
reported to the soldier’s Commanding Officer, who referred the
case to the Army Prosecuting Authority in February 2005. The Army
Prosecuting Authority decided that a formal preliminary examination
of the witnesses should be held, in order to clarify any
uncertainties and ambiguities in the evidence. Depositions were taken
by the Army Prosecuting Authority from the soldiers who had witnessed
the shooting, and who were the only known witnesses. Advice was
obtained from an independent senior counsel, who advised that there
was no realistic prospect of conviction, since there was no realistic
prospect of establishing that Lance Corporal S had not fired in
self defence. The file was sent to the Attorney General, who
decided not to exercise his jurisdiction to order a criminal
prosecution.
5. The fifth applicant
- The
fifth applicant is the father of Ahmed Jabbar Kareem Ali, who died on
8 May 2003, aged 15.
- According
to the statements made by the fifth applicant for the purpose of
United Kingdom court proceedings, on 8 May 2003 his son did not
return home at 1.30 p.m. as expected. The fifth applicant went to
look for him at Al-Saad Square, where he was told that British
soldiers had arrested some Iraqi youths earlier in the day. The
applicant continued to search for his son and was contacted the
following morning by A, another young Iraqi, who told that applicant
that he, the applicant’s son and two others had been arrested
by British soldiers the previous day, beaten up and forced into the
waters of the Shatt Al-Arab. Later on 9 May 2003 the applicant’s
brother informed “the British police” about the incident
and was requested to surrender Ahmed’s identity card. Having
spent several days waiting and searching, the applicant found his
son’s body in the water on 10 May 2003.
- The
applicant immediately took his son’s body to “the British
police station”, where he was told to take the body to the
local hospital. The Iraqi doctor on duty told the applicant that he
was not qualified to carry out a post mortem and that there were no
pathologists available. The applicant decided to bury his son, since
in accordance with Islamic practice burial should take place within
24 hours of death.
- About
10 to 15 days after his son’s funeral, the applicant returned
to “the British police station” to ask for an
investigation, but he was informed that it was not the business of
“the British police” to deal with such matters. He
returned to the “police station” some days later, and was
informed that the Royal Military Police wished to contact him and
that he should go to the Presidential Palace. The following day the
applicant met with Special Investigation Branch officers at the
Presidential Palace and was informed that an investigation would be
commenced.
- The
Special Investigation Branch interviewed A and took a statement from
him. They took statements from the applicant and other family
members. At least a month after the incident, the investigators went
to Al-Saad Square and retrieved clothing belonging to the applicant’s
son and to the other young men who had been arrested at the same
time. At the end of the 40-day mourning period, the applicant
consented to his son’s body being exhumed for post mortem
examination, but it was not possible at that point to establish
either whether Ahmed had been beaten prior to death or what had been
the cause of death. The applicant contends that he was never given an
explanation as to the post mortem findings and that he was not kept
fully informed of the progress of the investigation in general, since
many of the documents he was given were in English or had been badly
translated into Arabic.
- The
applicant claims that eighteen months elapsed after the exhumation of
his son’s body during which time he had no contact with the
investigators. In August 2005 he was informed that four soldiers had
been charged with manslaughter and that a trial would take place in
England. The court martial was held between September 2005 and May
2006. By that time, three of the seven soldiers who had been accused
of his homicide had left the Army, and a further two were absent
without leave. It was the prosecution case that the soldiers had
assisted Iraqi police officers to arrest the four youths on suspicion
of looting and that they had driven them to the river and forced them
in at gunpoint “to teach them a lesson”. The applicant
and A gave evidence to the court-martial in April 2006. The applicant
found the trial process confusing and intimidating and he was left
with the impression that the court was biased in favour of the
accused. A gave evidence that the applicant’s son had appeared
to be in distress in the water, but that the soldiers had driven away
without helping him. However, he was not able to identify the
defendants as the soldiers involved. The defendants denied any
responsibility for the death and were acquitted because A’s
evidence was found to be inconsistent and unreliable.
- The
applicant’s son’s case was one of the six cases
investigated in the Aitken Report (see paragraph 69 below). Under the
heading “Learning Lessons from Discipline Cases” the
Report stated:
“... we know that two Initial Police Reports were
produced in May 2003 relating to allegations that, on two separate
occasions but within the space of just over a fortnight, Iraqis had
drowned in the Shat’ al-Arab at the hands of British soldiers.
That one of those cases did not subsequently proceed to trial is
irrelevant: at the time, an ostensibly unusual event was alleged to
have occurred twice in a short space of time. With all their other
duties, the commanders on the ground cannot reasonably be blamed for
failing to identify what may or may not have been a trend; but a more
immediate, effective system for referring that sort of information to
others with the capacity to analyse it might have identified such a
trend. In fact, the evidence suggests that these were two isolated
incidents; but had they been a symptom of a more fundamental failing,
they might have been overlooked. By comparison, if there had been two
reports of a new weapon being used by insurgents to attack British
armoured vehicles within a fortnight, it is certain that the Lessons
Learned process would have identified its significance, determined
the counter-measures needed to combat it, and quickly disseminated
new procedures to mitigate the risk. The fact that this process does
not apply to disciplinary matters is only partly explained by the
need for confidentiality and the preservation of evidence; but it is
a failure in the process that could be fairly easily rectified
without compromising the fundamental principle of innocence until
proven guilty.”
The
Report continued, under the heading “Delay”;
“The amount of time taken to resolve some of the
cases with which this report is concerned has been unacceptable. ...
The court martial in connection with the death of Ahmed Jabber Kareem
did not convene until September 2005, 28 months after he died; by
that time, three of the seven soldiers who had been accused of his
murder had left the Army, and a further two were absent without
leave.
In most cases, it is inappropriate for the Army to take
administrative action against any officer or soldier until the
disciplinary process has been completed, because of the risk of
prejudicing the trial. When that disciplinary process takes as long
as it has taken in most of these cases, then the impact of any
subsequent administrative sanctions is significantly reduced –
indeed, such sanctions are likely to be counterproductive. Moreover,
the longer the disciplinary process takes, the less likely it is that
the chain of command will take proactive measures to rectify the
matters that contributed to the commission of the crimes in the first
place.”
- The
fifth applicant brought civil proceedings against the Ministry of
Defence for damages in respect of his son’s death. The claim
was settled without going to hearing, by the payment of 115,000
pounds sterling (GBP) on 15 December 2008. In addition, on 20
February 2009 Major General Cubbitt wrote to the fifth applicant and
formally apologised on behalf of the British Army for its role in his
son’s death.
6. The sixth applicant
- The
sixth applicant is a Colonel in the Basrah police force. His son,
Baha Mousa, was aged 26 when he died whilst in the custody of the
British Army, three days after having been arrested by soldiers on 14
September 2003.
- According
to the sixth applicant, on the night of 13/14 September 2003 his son
had been working as a receptionist at the Ibn Al-Haitham Hotel in
Basrah. Early in the morning of the 14 September, the applicant went
to the hotel to pick his son up from work. On his arrival he noticed
that a British unit had surrounded the hotel. The applicant’s
son and six other hotel employees were lying on the floor of the
hotel lobby with their hands behind their heads. The applicant
expressed his concern to the lieutenant in charge of the operation,
who reassured him that it was a routine investigation that would be
over in a couple of hours. On the third day after his son had been
detained, the sixth applicant was visited by a Royal Military Police
unit. He was told that his son had been killed in custody at a
British military base in Basrah. He was asked to identify the corpse.
The applicant’s son’s body and face were covered in blood
and bruises; his nose was broken and part of the skin of his face had
been torn away.
- One
of the other hotel employees who were arrested on 14 September
2003 stated in a witness statement prepared for the United Kingdom
domestic court proceedings that, once the prisoners had arrived at
the base, the Iraqi detainees were hooded, forced to maintain stress
positions, denied food and water and kicked and beaten. During the
detention, Baha Mousa was taken into another room, where he could be
heard screaming and moaning.
- Late
on 15 September 2003 Brigadier Moore, who had taken part in the
operation in which the hotel employees had been arrested, was
informed that Baha Mousa was dead and that other detainees had been
ill-treated. The Special Investigation Branch was immediately called
in to investigate the death. Since local hospitals were on strike, a
pathologist was flown in from the United Kingdom. Baha Mousa was
found to have 93 identifiable injuries on his body and to have died
of asphyxiation. Eight other Iraqis had also been inhumanely treated,
with two requiring hospital treatment. The investigation was
concluded in early April 2004 and the report distributed to the
unit’s chain of command.
- On
14 December 2004 the Divisional Court held that the inquiry into the
applicant’s son’s death had not been effective (see
paragraph 77 below). On 21 December 2005 the Court of Appeal decided
to remit the question to the Divisional Court since there had been
further developments (see paragraph 81 below).
- On
19 July 2005 seven British soldiers were charged with criminal
offences in connection with Baha Mousa’s death. On 19 September
2006, at the start of the court-martial, one of the soldiers pleaded
guilty to the war crime of inhumane treatment but not guilty to
manslaughter. On 14 February 2007 charges were dropped against
four of the seven soldiers and on 13 March 2007 the other two
soldiers were acquitted. On 30 April 2007 the soldier convicted
of inhumane treatment was sentenced to a year’s imprisonment
and dismissal from the Army.
- On
25 January 2008 the Ministry of Defence published a report written by
Brigadier Robert Aitken concerning six cases of alleged deliberate
abuse and killing of Iraqi civilians, including the deaths of the
fifth and sixth applicants’ sons (“the Aitken Report”).
- The
applicant brought civil proceedings against the Ministry of Defence,
which concluded in July 2008 by the formal and public acknowledgement
of liability and the payment of GBP 575,000 in compensation.
- In
a written statement given in Parliament on 14 May 2008 the Secretary
of State for Defence announced that there would be a public inquiry
into the death of Baha Mousa. The Inquiry is chaired by a retired
Court of Appeal judge, with the following terms of reference:
“To investigate and report on the circumstances
surrounding the death of Baha Mousa and the treatment of those
detained with him, taking account of the investigations which have
already taken place, in particular where responsibility lay for
approving the practice of conditioning detainees by any members of
the 1st Battalion, The Queen’s Lancashire
Regiment in Iraq in 2003, and to make recommendations.”
At
the time of adoption of the present judgment, the Inquiry had
concluded the oral hearings but had not yet delivered its report.
F. The domestic proceedings under the Human Rights Act
1. The Divisional Court
- On
26 March 2004, the Secretary of State for Defence decided, in
connection with the deaths of 13 Iraqi civilians including the
relatives of the six applicants, (1) not to conduct independent
inquiries into the deaths; (2) not to accept liability for the
deaths; (3) not to pay just satisfaction.
- The
13 claimants applied for judicial review of these decisions, seeking
declarations that both the procedural and the substantive obligations
of Article 2 (and, in the case of the sixth applicant, Article 3) of
the Convention had been violated as a result of the deaths and the
Secretary of State’s refusal to order any investigation. On 11
May 2004 a judge of the Divisional Court directed that six test cases
would proceed to hearing (including the cases of the first, second,
third, fourth and sixth applicants) and that the other seven cases
(including that of the fifth applicant) would be stayed pending the
resolution of the preliminary issues.
- On
14 December 2004 the Divisional Court rejected the claims of the
first four applicants but accepted the claim of the sixth applicant
([2004] EWHC 2911 (Admin)). Having reviewed this Court’s
case-law, in particular Banković and Others v. Belgium and
Others [GC] (dec.), no. 52207/99, ECHR 2001-XII, it held
that, essentially, jurisdiction under Article 1 of the Convention was
territorial, although there were exceptions. One exception applied
where a State Party had effective control of an area outside its own
territory. This basis of jurisdiction applied only where the
territory of one Contracting State was controlled by another
Contracting State, since the Convention operated essentially within
its own regional sphere and permitted no vacuum within that space.
This basis of jurisdiction could not, therefore, apply in Iraq.
- There
was an additional exception, which arose from the exercise of
authority by a Contracting State’s agents anywhere in the
world, but this was limited to specific cases recognised by
international law and identified piece-meal in the Court’s
case-law. No general rationale in respect of this group of exceptions
was discernable from the Court’s case-law. However, the
instances recognised so far arose out of the exercise of State
authority in or from a location which had a discrete
quasi-territorial quality, or where the State agent’s presence
in the foreign State was consented to by that State and protected by
international law, such as embassies, consulates, vessels and
aircraft registered in the respondent State. A British military
prison, operating in Iraq with the consent of the Iraqi sovereign
authorities and containing arrested suspects, could be covered by
this narrow exception. It was arguable that Öcalan v. Turkey,
no. 46221/99, 12 March 2003, also fell into this category, since
the applicant was arrested in a Turkish aircraft and taken
immediately to Turkey. However, the Divisional Court did not consider
that the Chamber judgment in Öcalan should be treated as
“illuminating”, since Turkey had not raised any objection
based on lack of jurisdiction at the admissibility stage.
- It
followed that the deaths as a result of military operations in the
field, such as those complained of by the first four applicants, did
not fall within the United Kingdom’s jurisdiction under Article
1 of the Convention, but that the death of the sixth applicant’s
son, in a British military prison, did. The Divisional Court further
held that the scope of the Human Rights Act 1998 was identical
to that of the Convention for these purposes.
- The
court found that there had been a breach of the investigative duty
under Articles 2 and 3 of the Convention in respect of the sixth
applicant’s son since, by July 2004, some 10 months after the
killing, the results of the investigation were unknown and
inconclusive. The judge commented that:
“329. ... Although there has been evidence of a
rather general nature about the difficulties of conducting
investigations in Iraq at that time – about basic security
problems involved in going to Iraqi homes to interview people, about
lack of interpreters, cultural differences, logistic problems, lack
of records, and so forth – without any further understanding of
the outcome of the [Special Investigation Branch’s] report, it
is impossible to understand what, if any, relevance any of this has
to a death which occurred not in the highways or byways of Iraq, but
in a military prison under the control of British forces. ...
330. Although Captain Logan says that identity parades
were logistically very difficult, detainees were moved to a different
location, and some military witnesses had returned to the UK, she
also says that these problems only delayed the process but did not
prevent it taking place ‘satisfactorily’ .... There is
nothing else before us to explain the dilatoriness of the
investigative process: which might possibly be compared with the
progress, and open public scrutiny, which we have noted seems to have
been achieved with other investigations arising out of possible
offences in prisons under the control of US forces. As for the
[Special Investigation Branch’s] report itself, on the evidence
before us ... that would not contain any decision as to the facts or
any conclusions as to what has or might have happened.
331. In these circumstances we cannot accept [counsel
for the Government’s] submission that the investigation has
been adequate in terms of the procedural obligation arising out of
article 2 of the Convention. Even if an investigation solely in the
hands of the [Special Investigation Branch] might be said to be
independent, on the grounds that the [Special Investigation Branch]
are hierarchically and practically independent of the military units
under investigation, as to which we have doubts in part because the
report of the [Special Investigation Branch] is to the unit chain of
command itself, it is difficult to say that the investigation which
has occurred has been timely, open or effective.”
In
respect of the other five deaths, the judge considered that, if he
were wrong on the jurisdiction issue and the claims did fall within
the scope of the Convention, the investigative duty under Article 2
had not been met, for the following reasons:
“337. ... in all these cases, as in the case of Mr
Mousa, the United Kingdom authorities were proceeding on the basis
that the Convention did not apply. Thus the immediate investigations
were in each case conducted, as a matter of policy, by the unit
involved: only in case 4, that concerning Mr Waleed Muzban, was there
any involvement of the [Special Investigation Branch] , and that was
stood down, at any rate before being re-opened (at some uncertain
time) upon a review of the file back in the UK. The investigations
were therefore not independent. Nor were they effective, for they
essentially consisted only in a comparatively superficial exercise,
based on the evidence of the soldiers involved themselves, and even
then on a paucity of interviews or witness statements, an exercise
which was one-sided and omitted the assistance of forensic evidence
such as might have become available from ballistic or medical
expertise.
...
339. In connection with these cases, [counsel for the
Government’s] main submission was that, in extremely difficult
situations, both in operational terms in the field and in terms of
post event investigations, the army and the authorities had done
their best. He particularly emphasised the following aspects of the
evidence. There was no rule of law in Iraq; at the start of the
occupation there was no police force at all, and at best the force
was totally inadequate, as well as being under constant attack;
although the Iraqi courts were functioning, they were subject to
intimidation; there was no local civil inquest system or capability;
the local communications systems were not functioning; there were no
mortuaries, no post mortem system, no reliable pathologists; the
security situation was the worst ever experienced by seasoned
soldiers; there was daily fighting between tribal and criminal gangs;
the number of troops available were small; and cultural differences
exacerbated all these difficulties.
340. We would not discount these difficulties, which
cumulatively must have amounted to grave impediments for anyone
concerned to conduct investigations as they might have liked to have
carried them out. However, irrespective of [counsel for the
applicants’] submission, in reliance on the Turkish cases, that
security problems provide no excuse for a failure in the article 2
investigative duty, we would conclude that, on the hypothesis stated,
the investigations would still not pass muster. They were not
independent; they were one-sided; and the commanders concerned were
not trying to do their best according to the dictates of article 2.
341. That is not to say, however, that, in other
circumstances, we would ignore the strategic difficulties of the
situation. The Turkish cases are all concerned with deaths within the
state party’s own territory. In that context, the Court was
entitled to be highly sceptical about the state’s own
professions of difficulties in an investigative path which it in any
event may hardly have chosen to follow. It seems to us that this
scepticism cannot be so easily transplanted in the extra-territorial
setting. ...”
2. The Court of Appeal
- The
first four applicants appealed against the Divisional Court’s
finding that their relatives did not fall within the United Kingdom’s
jurisdiction. The Secretary of State also cross appealed against
the finding in relation to the sixth applicant’s son; although
he accepted before the Court of Appeal that an Iraqi in the actual
custody of British soldiers in a military detention centre in Iraq
was within the United Kingdom’s jurisdiction under Article 1 of
the Convention, he contended that the Human Rights Act had no
extra-territorial effect and that the sixth applicant’s claim
was not, therefore, enforceable in the national courts.
- On
21 December 2005 the Court of Appeal dismissed the appeals and the
cross-appeal ([2005] EWCA Civ 1609). Having reviewed the Court’s
case-law on jurisdiction under Article 1 of the Convention, Brooke
LJ, who gave the leading judgment, held that a State could exercise
extra territorial jurisdiction when it applied control and
authority over a complainant (which he termed “State agent
authority”, abbreviated to “SAA”) and when it held
effective control of an area outside its borders (“effective
control of an area” or “ECA”), observing at §
80:
“80. I would therefore be more cautious than the
Divisional Court in my approach to the Bankovic judgment. It
seems to me that it left open both the ECA and SAA approaches to
extra-territorial jurisdiction, while at the same time emphasizing
(in para 60) that because a SAA approach might constitute a
violation of another state’s sovereignty (for example, when
someone is kidnapped by the agents of a state on the territory of
another state without that state’s invitation or consent), this
route to any recognition that extra-territorial jurisdiction has been
exercised within the meaning of an international treaty should be
approached with caution.”
He
considered, inter alia, the cases of Öcalan v. Turkey
[GC], no. 46221/99, ECHR 2005-IV; Freda v. Italy, (dec.),
no. 8916/80, Commission decision of 7 October 1980, Decisions
and Reports (DR) 21, p. 250; and Sánchez Ramirez v.
France, (dec.), no. 28780/95, Commission decision of 24 June
1996, DR 86-A, p. 155; and observed that these cases had nothing to
do with the principle of public international law relating to
activities within aircraft registered with a State flying over the
territory of another State. Instead, the findings of jurisdiction in
these cases were examples of the “State agent authority”
doctrine applying when someone was within the control and authority
of agents of a Contracting State, even outside the espace
juridique of the Council of Europe, and whether or not the host
State consented to the exercise of control and authority on its soil.
Applying the relevant principles to the facts of the case he
concluded that the sixth applicant’s son came within the
control and authority of the United Kingdom, and therefore its
jurisdiction, from the time he was arrested at the hotel. The
relatives of the other claimants had not been under the control and
authority of British troops at the time when they were killed, and
were not therefore within the United Kingdom’s jurisdiction. He
concluded in this connection that:
“110. ... It is essential, in my judgment, to set
rules which are readily intelligible. If troops deliberately and
effectively restrict someone’s liberty he is under their
control. This did not happen in any of these five cases.”
- He
then examined whether, on the facts, it could be said that British
troops were in effective control of Basrah City during the period in
question, such as to fix the United Kingdom with jurisdiction under
the “effective control of an area” doctrine. On this
point, Brooke LJ concluded as follows:
“119. Basrah City was in the [Coalition
Provisional Authority] regional area called ‘CPA South’.
During the period of military occupation there was a significant
degree of British responsibility and authority in CPA South, although
its staff were drawn from five different countries and until the end
of July 2003 the regional co-ordinator was a Dane. Indeed, only one
of the four governorate teams in CPA South was headed by a British
co-ordinator. However, although the chain of command for the British
military presence in Iraq led ultimately to a US general, the Al
Basrah and Maysan provinces were an area of direct British military
responsibility. As I have already said ..., the Secretary of State
accepts that the UK was an occupying power within the meaning of
Article 42 of the Hague Regulations ..., at least in those areas of
southern Iraq, and particularly Basrah City, where British troops
exercised sufficient authority for this purpose.
120. But whatever may have been the position under the
Hague Regulations, the question this court has to address is whether
British troops were in effective control of Basrah City for ECA
purposes. The situation in August - November 2003 contrasts starkly
with the situations in northern Cyprus and in the Russian-occupied
part of Moldova which feature in Strasbourg case-law. In each of
those cases part of the territory of a contracting state was occupied
by another contracting state which had every intention of exercising
its control on a long term basis. The civilian administration of
those territories was under the control of the occupying state, and
it deployed sufficient troops to ensure that its control of the area
was effective.
121. [The statement of Brigadier Moore, whose command
included the British forces in the Basrah area between May and
November 2003] tells a very different story. He was not provided with
nearly enough troops and other resources to enable his brigade to
exercise effective control of Basrah City. ... [H]e described how the
local police would not uphold the law. If British troops arrested
somebody and gave them to the Iraqi police, the police would hand
them over to the judiciary, who were themselves intimidated by the
local tribes, and the suspected criminals were back on the streets
within a day or two. This state of affairs gave the British no
confidence in the local criminal justice system. It also diluted
their credibility with local people. Although British troops arranged
local protection for the judges, this made little difference. The
prisons, for their part, were barely functioning.
122. After describing other aspects of the highly
volatile situation in which a relatively small number of British
military personnel were trying to police a large city as best they
could, Brig[adier] Moore said ...:
‘The combination of terrorist activity, the
volatile situation and the ineffectiveness of Iraqi security forces
meant that the security situation remained on a knife-edge for much
of our tour. Despite our high work rate and best efforts, I felt that
at the end of August 2003 we were standing on the edge of an abyss.
It was only when subsequent reinforcements arrived ... and we started
to receive intelligence from some of the Islamic parties that I
started to regain the initiative.’
123. Unlike the Turkish army in northern Cyprus, the
British military forces had no control over the civil administration
of Iraq. ...
124. In my judgment it is quite impossible to hold that
the UK, although an occupying power for the purposes of the Hague
Regulations and Geneva IV, was in effective control of Basrah City
for the purposes of ECHR jurisprudence at the material time. If it
had been, it would have been obliged, pursuant to the Bankovic
judgment, to secure to everyone in Basrah City the rights and
freedoms guaranteed by the ECHR. One only has to state that
proposition to see how utterly unreal it is. The UK possessed no
executive, legislative or judicial authority in Basrah City, other
than the limited authority given to its military forces, and as an
occupying power it was bound to respect the laws in force in Iraq
unless absolutely prevented (see Article 43 of the Hague Regulations
...). It could not be equated with a civil power: it was simply there
to maintain security, and to support the civil administration in Iraq
in a number of different ways ...”
Sedley
LJ observed, in connection with this issue:
“194. On the one hand, it sits ill in the mouth
of a state which has helped to displace and dismantle by force
another nation’s civil authority to plead that, as an occupying
power, it has so little control that it cannot be responsible for
securing the population’s basic rights. ... [However] the fact
is that it cannot: the invasion brought in its wake a vacuum of civil
authority which British forces were and still are unable to fill. On
the evidence before the Court they were, at least between mid-2003
and mid-2004, holding a fragile line against anarchy.”
- The
Court of Appeal unanimously concluded that, save for the death of the
sixth applicant’s son, which fell within the “State agent
authority” exception, the United Kingdom did not have
jurisdiction under Article 1 of the Convention. The court
decided that the sixth applicant’s claim also fell within the
scope of the Human Rights Act 1998. Since the Divisional Court’s
examination of the case more information had emerged about the
investigation into the death of the sixth applicant’s son,
including that court martial proceedings were pending against a
number of soldiers. The Court of Appeal therefore remitted the
question whether there had been an adequate investigation to the
Divisional Court for reconsideration following the completion of the
court-martial proceedings.
- Despite
his conclusion on jurisdiction, Brooke LJ, at the express invitation
of the Government, commented on the adequacy of the investigations
carried out into the deaths, as follows:
“139. After all, the first two Articles of the
[Convention] merely articulate the contemporary concern of the entire
European community about the importance that must always be attached
to every human life. ... Needless to say, the obligation to comply
with these well-established international human rights standards
would require, among other things, a far greater investment in the
resources available to the Royal Military Police than was available
to them in Iraq, and a complete severance of their investigations
from the military chain of command.
140. In other words, if international standards are to
be observed, the task of investigating incidents in which a human
life is taken by British forces must be completely taken away from
the military chain of command and vested in the [Royal Military
Police]. It contains the requisite independence so long as it is free
to decide for itself when to start and when to cease an
investigation, and so long as it reports in the first instance to the
[Army Prosecuting Authority] and not to the military chain of
command. It must then conduct an effective investigation, and it will
be helped in this regard by the passages from ECHR case-law I have
quoted. Many of the deficiencies highlighted by the evidence in this
case will be remedied if the [Royal Military Police] perform this
role, and if they are also properly trained and properly resourced to
conduct their investigations with the requisite degree of
thoroughness.”
3. The House of Lords
- The
first four applicants appealed and the Secretary of State
cross appealed to the House of Lords, which gave judgment on 13
June 2007 ([2007] UKHL 26). The majority of the House of Lords (Lord
Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell
and Lord Brown of Eaton-under-Heywood) held that the general purpose
of the Human Rights Act 1998 was to provide a remedial structure in
domestic law for the rights guaranteed by the Convention, and that
the 1998 Act should therefore be interpreted as applying wherever the
United Kingdom had jurisdiction under Article 1 of the Convention.
Lord Bingham of Cornhill, dissenting, held that the Human Rights Act
had no extra-territorial application.
- In
relation to the first four applicants’ complaints, the majority
of the House of Lords found that the United Kingdom did not have
jurisdiction over the deaths. Because of his opinion that the Human
Rights Act had no extra-territorial application, Lord Bingham did not
consider it useful to express a view as whether the United Kingdom
exercised jurisdiction within the meaning of Article 1 of the
Convention.
- Lord
Brown, with whom the majority agreed, began by observing that
ultimately the decision about how Article 1 of the Convention should
be interpreted and applied was for the European Court of Human
Rights, since the duty of the national court was only to keep pace
with the Court’s case-law; there was a danger in a national
court construing the Convention too generously in favour of an
applicant, since the respondent State had no means of referring such
a case to the Court. Lord Brown took as his starting point the
decision of the Grand Chamber in Banković (cited above),
which he described as “a watershed authority in the light
of which the Strasbourg jurisprudence as a whole has to be
re-evaluated”. He considered that the following propositions
could be derived from the decision in Banković (§ 109
of the House of Lords judgment);
“(1) Article 1 reflects an ‘essentially
territorial notion of jurisdiction’ (a phrase repeated several
times in the Court’s judgment), ‘other bases of
jurisdiction being exceptional and requiring special justification in
the particular circumstances of each case’ (para 61). The
Convention operates, subject to article 56, ‘in an essentially
regional context and notably in the legal space (espace juridique)
of the contracting states’ (para 80) (ie within the area of the
Council of Europe countries).
(2) The Court recognises article 1 jurisdiction to avoid
a ‘vacuum in human rights’ protection’ when the
territory ‘would normally be covered by the Convention’
(para 80) (ie in a Council of Europe country) where otherwise
(as in Northern Cyprus) the inhabitants “would have found
themselves excluded from the benefits of the Convention safeguards
and system which they had previously enjoyed’ (para 80).
(3) The rights and freedoms defined in the Convention
cannot be ‘divided and tailored’ (para 75).
(4) The circumstances in which the Court has
exceptionally recognised the extra territorial exercise of
jurisdiction by a state include:
(i) Where the state ‘through the effective control
of the relevant territory and its inhabitants abroad as a consequence
of military occupation or through the consent, invitation or
acquiescence of the government of that territory, exercises all or
some of the public powers normally to be exercised by [the government
of that territory]’ (para 71) (ie when otherwise there would be
a vacuum within a Council of Europe country, the government of that
country itself being unable ‘to fulfil the obligations it had
undertaken under the Convention’ (para 80) (as in Northern
Cyprus).
(ii) ‘Cases involving the activities of its
diplomatic or consular agents abroad and on board craft and vessels
registered in, or flying the flag of, that state [where] customary
international law and treaty provisions have recognised the
extra territorial exercise of jurisdiction’ (para 73).
(iii) Certain other cases where a state’s
responsibility ‘could, in principle, be engaged because of acts
... which produced effects or were performed outside their own
territory’ (para 69). Drozd v France (1992) 14 EHRR 745
(at para 91) is the only authority specifically referred to in
Bankovic as exemplifying this class of exception to the
general rule. Drozd, however, contemplated no more than that,
if a French judge exercised jurisdiction extra-territorially in
Andorra in his capacity as a French judge, then anyone complaining of
a violation of his Convention rights by that judge would be regarded
as being within France’s jurisdiction.
(iv) The Soering v United Kingdom (1989) 11 EHRR 439 line of cases, the Court pointed out, involves action by the
state whilst the person concerned is ‘on its territory, clearly
within its jurisdiction’ (para 68) and not, therefore, the
exercise of the state’s jurisdiction abroad.”
Lord
Brown referred to the Öcalan, Freda and Sánchez
Ramirez line of cases (cited above), in each of which the
applicant was forcibly removed from a country outside the Council of
Europe, with the full cooperation of the foreign authorities, to
stand trial in the respondent State. He observed that this line of
cases concerning “irregular extraditions” constituted one
category of “exceptional” cases expressly contemplated by
Banković as having “special justification”
for extraterritorial jurisdiction under Article 1. He did not
consider that the first four applicants’ cases fell into any of
the exceptions to the territorial principle so far recognised by the
Court.
- Lord
Brown next considered the Court’s judgment in Issa and
Others v. Turkey, no. 31821/96, § 71, 16 November 2004, on
which the applicants relied, and held as follows:
“127. If and insofar as Issa is said to
support the altogether wider notions of article 1 jurisdiction
contended for by the appellants on this appeal, I cannot accept it.
In the first place, the statements relied upon must be regarded as
obiter dicta. Secondly, as just explained, such wider
assertions of jurisdiction are not supported by the authorities cited
(at any rate, those authorities accepted as relevant by the Grand
Chamber in Bankovic). Thirdly, such wider view of jurisdiction
would clearly be inconsistent both with the reasoning in Bankovic
and, indeed, with its result. Either it would extend the effective
control principle beyond the Council of Europe area (where alone it
had previously been applied, as has been seen, to Northern Cyprus, to
the Ajarian Autonomous Republic in Georgia and to Transdniestria) to
Iraq, an area (like the FRY considered in Bankovic) outside
the Council of Europe—and, indeed, would do so contrary to the
inescapable logic of the Court’s case law on article 56.
Alternatively it would stretch to breaking point the concept of
jurisdiction extending extra-territorially to those subject to a
state’s ‘authority and control’. It is one thing to
recognise as exceptional the specific narrow categories of cases I
have sought to summarise above; it would be quite another to accept
that whenever a contracting state acts (militarily or otherwise)
through its agents abroad, those affected by such activities fall
within its article 1 jurisdiction. Such a contention would prove
altogether too much. It would make a nonsense of much that was said
in Bankovic, not least as to the Convention being ‘a
constitutional instrument of European public order’, operating
‘in an essentially regional context’, ‘not designed
to be applied throughout the world, even in respect of the conduct of
contracting states’ (para 80). It would, indeed, make redundant
the principle of effective control of an area: what need for that if
jurisdiction arises in any event under a general principle of
‘authority and control’ irrespective of whether the area
is (a) effectively controlled or (b) within the Council of Europe?
128. There is one other central objection to the
creation of the wide basis of jurisdiction here contended for by the
appellants under the rubric ‘control and authority’,
going beyond that arising in any of the narrowly recognised
categories already discussed and yet short of that arising from the
effective control of territory within the Council of Europe area.
Bankovic (and later Assanidze) stands, as stated, for
the indivisible nature of article 1 jurisdiction: it cannot be
‘divided and tailored’. As Bankovic had earlier
pointed out (at para 40) ‘the applicant’s interpretation
of jurisdiction would invert and divide the positive obligation on
contracting states to secure the substantive rights in a manner never
contemplated by article 1 of the Convention.’ When, moreover,
the Convention applies, it operates as ‘a living instrument.’
Öcalan provides an example of this, a recognition that
the interpretation of article 2 has been modified consequent on ‘the
territories encompassed by the member states of the Council of Europe
[having] become a zone free of capital punishment’ (para 163).
(Paragraphs 64 and 65 of Bankovic, I may note, contrast on the
one hand ‘the Convention’s substantive provisions’
and ‘the competence of the Convention organs’, to both of
which the ‘living instrument’ approach applies and, on
the other hand, the scope of article 1—’the scope and
reach of the entire Convention’—to which it does not.)
Bear in mind too the rigour with which the Court applies the
Convention, well exemplified by the series of cases from the conflict
zone of south eastern Turkey in which, the state’s difficulties
notwithstanding, no dilution has been permitted of the investigative
obligations arising under articles 2 and 3.
129. The point is this: except where a state really does
have effective control of territory, it cannot hope to secure
Convention rights within that territory and, unless it is within the
area of the Council of Europe, it is unlikely in any event to find
certain of the Convention rights it is bound to secure reconcilable
with the customs of the resident population. Indeed it goes further
than that. During the period in question here it is common ground
that the UK was an occupying power in Southern Iraq and bound as such
by Geneva IV and by the Hague Regulations. Article 43 of the Hague
Regulations provides that the occupant ‘shall take all the
measures in his power to restore and ensure, as far as possible,
public order and safety, while respecting, unless absolutely
prevented, the laws in force in the country.’ The appellants
argue that occupation within the meaning of the Hague Regulations
necessarily involves the occupant having effective control of the
area and so being responsible for securing there all Convention
rights and freedoms. So far as this being the case, however, the
occupants’ obligation is to respect ‘the laws in force’,
not to introduce laws and the means to enforce them (for example,
courts and a justice system) such as to satisfy the requirements of
the Convention. Often (for example where Sharia law is in force)
Convention rights would clearly be incompatible with the laws of the
territory occupied.”
- Lord
Rodger (at § 83), with whom Baroness Hale agreed, and
Lord Carswell (§ 97) expressly held that the United Kingdom
was not in effective control of Basrah City and the surrounding area
for purposes of jurisdiction under Article 1 of the Convention at the
relevant time.
- The
Secretary of State accepted that the facts of the sixth applicant’s
case fell within the United Kingdom’s jurisdiction under
Article 1 of the Convention. The parties therefore agreed that if (as
the majority held) the jurisdictional scope of the Human Rights Act
was the same as that of the Convention, the sixth applicant’s
case should be remitted to the Divisional Court, as the Court of
Appeal had ordered. In consequence, it was unnecessary for the House
of Lords to examine the jurisdictional issue in relation to the death
of the sixth applicant’s son. However, Lord Brown, with whom
the majority agreed, concluded:
“132. ... As for the sixth case, I for my part
would recognise the UK’s jurisdiction over Mr Mousa only on the
narrow basis found established by the Divisional Court, essentially
by analogy with the extra-territorial exception made for embassies
(an analogy recognised too in Hess v United Kingdom
(1975) 2 DR 72, a Commission decision in the context of a foreign
prison which had itself referred to the embassy case of X v
Federal Republic of Germany). ...”
II. RELEVANT INTERNATIONAL LAW MATERIALS
A. International humanitarian law on belligerent
occupation
- The
duties of an Occupying Power can be found primarily in Articles 42
to 56 of the Regulations concerning the Laws and Customs of War on
Land (The Hague, 18 October 1907: hereafter, “the Hague
Regulations”) and Articles 27 to 34 and 47 to 78 of the
Convention (IV) relative to the Protection of Civilian Persons in
Time of War (Geneva, 12 August 1949: hereafter, “the
Fourth Geneva Convention”), as well as in certain provisions of
the Protocol Additional to the Geneva Conventions of 12 August 1949,
and relating to the Protection of Victims of International Armed
Conflicts (Protocol I), 8 June 1977 (hereafter, “Additional
Protocol I”).
Articles
42 and 43 of the Hague Regulations provide as follows:
“42. Territory is considered occupied when it is
actually placed under the authority of the hostile army. The
occupation extends only to the territory where such authority has
been established and can be exercised.
43. The authority of the legitimate power having in fact
passed into the hands of the occupant, the latter shall take all the
measures in his power to restore, and ensure, as far as possible,
public order and safety, while respecting, unless absolutely
prevented, the laws in force in the country.”
Article
64 of the Fourth Geneva Convention provides that penal laws may be
repealed or suspended by the Occupying Power only where they
constitute a threat to the security or an obstacle to the application
of the Fourth Geneva Convention. It also details the situations in
which the Occupying Power is entitled to introduce legislative
measures. These are specifically:
“provisions which are essential to enable the
Occupying Power to fulfil its obligations under the present
Convention, to maintain the orderly government of the territory, and
to ensure the security of the Occupying Power, of the members and
property of the occupying forces or administration, and likewise of
the establishments and lines of communication used by them.”
Agreements
concluded between the Occupying Power and the local authorities
cannot deprive the population of occupied territory of the protection
afforded by international humanitarian law and protected persons
themselves can in no circumstances renounce their rights (Fourth
Geneva Convention, Articles 8 and 47). Occupation does not create any
change in the status of the territory (see Article 4 of Additional
Protocol I), which can only be effected by a peace treaty or by
annexation followed by recognition. The former sovereign remains
sovereign and there is no change in the nationality of the
inhabitants.
B. Case-law of the International Court of Justice
concerning the inter-relationship between international humanitarian
law and international human rights law and the extra-territorial
obligations of States under international human rights law
90. In
the proceedings concerning the International Court of Justice’s
Advisory Opinion on the Legal
Consequences of the Construction of a Wall in the Occupied
Palestinian Territory (9 July 2004),
Israel denied that the human rights instruments to which it was a
party, including the International Covenant on Civil and Political
Rights, were applicable to the Occupied Palestinian Territory and
asserted (§ 102) that:
“humanitarian law is the
protection granted in a conflict situation such as the one in the
West Bank and Gaza Strip, whereas human rights treaties were intended
for the protection of citizens from their own Government in times of
peace.”
In
order to determine whether the instruments were applicable in the
Occupied Palestinian Territory, the International Court of
Justice first addressed the issue of the
relationship between international humanitarian law and international
human rights law, holding as follows:
“106. ... the Court considers
that the protection offered by human rights conventions does not
cease in case of armed conflict, save through the effect of
provisions for derogation of the kind to be found in Article 4 of the
[International Covenant on Civil and Political Rights]. As regards
the relationship between international humanitarian law and human
rights law, there are thus three possible situations: some rights may
be exclusively matters of international humanitarian law; others may
be exclusively matters of human rights law; yet others may be matters
of both these branches of international law. In order to answer the
question put to it, the Court will have to take into consideration
both these branches of international law, namely human rights law
and, as lex specialis,
international humanitarian law.”
The
International Court of Justice next
considered the question whether the International Covenant on Civil
and Political Rights was capable of applying outside the State’s
national territory and whether it applied in the Occupied Palestinian
Territory. It held as follows (references and citations omitted):
“108. The scope of application
of the [International Covenant on Civil and Political Rights] is
defined by Article 2, paragraph 1, thereof, which provides :
‘Each State Party to the
present Covenant undertakes to respect and to ensure to all
individuals within its territory and subject to its jurisdiction the
rights recognized in the present Covenant, without distinction of any
kind, such as race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or other
status.’
This provision can be interpreted as
covering only individuals who are both present within a State’s
territory and subject to that State’s jurisdiction. It can also
be construed as covering both individuals present within a State’s
territory and those outside that territory but subject to that
State’s jurisdiction. The Court will thus seek to determine the
meaning to be given to this text.
109. The Court would observe that,
while the jurisdiction of States is primarily territorial, it may
sometimes be exercised outside the national territory. Considering
the object and purpose of the [International Covenant on Civil and
Political Rights], it would seem natural that, even when such is the
case, States parties to the Covenant should be bound to comply with
its provisions.
The constant practice of the Human
Rights Committee is consistent with this. Thus, the Committee has
found the Covenant applicable where the State exercises its
jurisdiction on foreign territory. It has ruled on the legality of
acts by Uruguay in cases of arrests carried out by Uruguayan agents
in Brazil or Argentina ... . It decided to the same effect in the
case of the confiscation of a passport by a Uruguayan consulate in
Germany ...
...
110. The Court takes note in this
connection of the position taken by Israel, in relation to the
applicability of the Covenant, in its communications to the Human
Rights Committee, and of the view of the Committee. In 1998, Israel
stated that, when preparing its report to the Committee, it had had
to face the question ‘whether individuals resident in the
occupied territories were indeed subject to Israel’s
jurisdiction’ for purposes of the application of the Covenant
... Israel took the position that ‘the Covenant and similar
instruments did not apply directly to the current situation in the
occupied territories’ ...The Committee, in its concluding
observations after examination of the report, expressed concern at
Israel’s attitude and pointed ‘to the long-standing
presence of Israel in [the occupied] territories, Israel’s
ambiguous attitude towards their future status, as well as the
exercise of effective jurisdiction by Israeli security forces
therein’ .... In 2003 in face of Israel’s consistent
position, to the effect that ‘the Covenant does not apply
beyond its own territory, notably in the West Bank and Gaza ...’,
the Committee reached the following conclusion :
‘in the current circumstances,
the provisions of the Covenant apply to the benefit of the population
of the Occupied Territories, for all conduct by the State party’s
authorities or agents in those territories that affect the enjoyment
of rights enshrined in the Covenant and fall within the ambit of
State responsibility of Israel under the principles of public
international law’ ... .
111. In conclusion, the Court
considers that the [International Covenant on Civil and Political
Rights] is applicable in respect of acts done by a State in the
exercise of its jurisdiction outside its own territory.”
In
addition, the International Court of Justice
appeared to assume that, even in respect of extra-territorial acts,
it would in principle be possible for a State to derogate from its
obligations under the International Covenant on Civil and Political
Rights, Article 4 § 1 of which provides:
“In time of public emergency
which threatens the life of the nation and the existence of which is
officially proclaimed, the States Parties to the present Covenant may
take measures derogating from their obligations under the present
Covenant to the extent strictly required by the exigencies of the
situation, provided that such measures are not inconsistent with
their other obligations under international law and do not involve
discrimination solely on the ground of race, colour, sex, language,
religion or social origin.”
Thus,
in § 136 of the opinion, having considered whether the acts in
question were justified under international humanitarian law
on grounds of military exigency, the International Court of
Justice held:
“136. The Court would further
observe that some human rights conventions, and in particular the
International Covenant on Civil and Political Rights, contain
provisions which States parties may invoke in order to derogate,
under various conditions, from certain of their conventional
obligations. In this respect, the Court would however recall that the
communication notified by Israel to the Secretary-General of the
United Nations under Article 4 of the International Covenant on Civil
and Political Rights concerns only Article 9 of the Covenant,
relating to the right to freedom and security of person (see
paragraph 127 above); Israel is accordingly bound to respect all the
other provisions of that instrument.”
91. In
its judgment Armed Activities on the
Territory of the Congo (Democratic Republic of Congo (DRC) v.
Uganda), (19 December 2005) the
International Court of Justice considered
whether, during the relevant period, Uganda was an “Occupying
Power” of any part of the territory of the Democratic Republic
of Congo, within the meaning of customary international law, as
reflected in Article 42 of the Hague Regulations (§§ 172-173).
The International Court of Justice found
that Ugandan forces were stationed in the province of Ituri and
exercised authority there, in the sense that they had substituted
their own authority for that of the Congolese Government (§§
174-176). The International Court of Justice
continued:
“178. The Court thus concludes
that Uganda was the occupying Power in Ituri at the relevant time. As
such it was under an obligation, according to Article 43 of the Hague
Regulations of 1907, to take all the measures in its power to
restore, and ensure, as far as possible, public order and safety in
the occupied area, while respecting, unless absolutely prevented, the
laws in force in the DRC. This obligation comprised the duty to
secure respect for the applicable rules of international human rights
law and international humanitarian law, to protect the inhabitants of
the occupied territory against acts of violence, and not to tolerate
such violence by any third party.
179. The Court, having concluded that
Uganda was an occupying Power in Ituri at the relevant time, finds
that Uganda’s responsibility is engaged both for any acts of
its military that violated its international obligations and for any
lack of vigilance in preventing violations of human rights and
international humanitarian law by other actors present in the
occupied territory, including rebel groups acting on their own
account.
180. The Court notes that Uganda at
all times has responsibility for all actions and omissions of its own
military forces in the territory of the DRC in breach of its
obligations under the rules of international human rights law and
international humanitarian law which are relevant and applicable in
the specific situation.”
The
International Court of Justice established
the facts relating to the serious breaches of human rights allegedly
attributable to Uganda, in the occupied Ituri region and elsewhere
(§§ 205-212). In order to determine whether the conduct in
question constituted a breach of Uganda’s international
obligations, the International Court of Justice
recalled its finding in the above Construction
of a Wall Advisory Opinion that both
international humanitarian law and international human rights law
would have to be taken into consideration and that international
human rights instruments were capable of having an extra-territorial
application, “particularly in occupied territories” (§
216). The International Court of Justice
next determined which were “the applicable rules of
international human rights law and international humanitarian law”,
by listing the international humanitarian and international human
rights treaties to which both Uganda and the Democratic Republic of
Congo were party, together with the relevant principles of customary
international law (§§ 217-219).
C. The duty to investigate alleged
violations of the right to life in situations of armed conflict and
occupation under international humanitarian law and international
human rights law
- Article
121 of the Third Geneva Convention provides that an official enquiry
must be held by the detaining power following the suspected homicide
of a prisoner of war. Article 131 of the Fourth Geneva Convention
provides:
“Every death or serious injury of an internee,
caused or suspected to have been caused by a sentry, another internee
or any other person, as well as any death the cause of which is
unknown, shall be immediately followed by an official enquiry by the
Detaining Power. A communication on this subject shall be sent
immediately to the Protection Power. The evidence of any witnesses
shall be taken, and a report including such evidence shall be
prepared and forwarded to the said Protection Power. If the enquiry
indicates the guilt of one or more persons, the Detaining Power shall
take all necessary steps to ensure the prosecution of the person or
persons responsible.”
The
Geneva Conventions also place an obligation on each High Contracting
Party to investigate and prosecute alleged grave breaches of the
Conventions, including the wilful killing of protected persons
(Articles 49 and 50 of the First Geneva Convention; Articles 50-51 of
the Second Geneva Convention; Articles 129 and 130 of the Third
Geneva Convention; Articles 146 and 147 of the Fourth Geneva
Convention).
- In
Report no. E/CN.4/2006/53 on Extrajudicial, Summary or Arbitrary
Executions (8 March 2006), the United Nations Special Rapporteur,
Philip Alston, observed in connection with the right to life under
Article 6 of the International Covenant on Civil
and Political Rights in situations of armed conflict and
occupation (footnotes omitted):
“36. Armed conflict and occupation do not
discharge the State’s duty to investigate and prosecute human
rights abuses. The right to life is non-derogable regardless of
circumstance. This prohibits any practice of not investigating
alleged violations during armed conflict or occupation. As the Human
Rights Committee has held, ‘It is inherent in the protection of
rights explicitly recognized as non-derogable ... that they must be
secured by procedural guarantees ... The provisions of the
[International Covenant on Civil and Political
Rights] relating to procedural safeguards may never be made
subject to measures that would circumvent the protection of
non-derogable rights.’ It is undeniable that during armed
conflicts circumstances will sometimes impede investigation. Such
circumstances will never discharge the obligation to investigate -
this would eviscerate the non-derogable character of the right to
life - but they may affect the modalities or particulars of the
investigation. In addition to being fully responsible for the conduct
of their agents, in relation to the acts of private actors States are
also held to a standard of due diligence in armed conflicts as well
as peace. On a case-by-case basis a State might utilize less
effective measures of investigation in response to concrete
constraints. For example, when hostile forces control the scene of a
shooting, conducting an autopsy may prove impossible. Regardless of
the circumstances, however, investigations must always be conducted
as effectively as possible and never be reduced to mere formality.
...”
- In
its judgment in the Case of the Mapiripán Massacre v.
Colombia, 15 September 2005, the Inter-American Court of Human
Rights held, inter alia, in connection with the respondent
State’s failure fully to investigate the massacre of civilians
carried out by a para-military group with the alleged assistance of
the State authorities:
“238. In this regard, the Court recognizes the
difficult circumstances of Colombia, where its population and its
institutions strive to attain peace; However, the country’s
conditions, no matter how difficult, do not release a State Party to
the American Convention of its obligation set forth in this treaty,
which specifically continue in cases such as the instant one. The
Court has argued that when the State conducts or tolerates actions
leading to extra-legal executions, not investigating them adequately
and not punishing those responsible, as appropriate, it breaches the
duties to respect rights set forth in the Convention and to ensure
their free and full exercise, both by the alleged victim and by his
or her next of kin, it does not allow society to learn what happened,
and it reproduces the conditions of impunity for this type of facts
to happen once again.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
- The
applicants contended that their relatives were within the
jurisdiction of the United Kingdom under Article 1 of the Convention
at the moment of death and that, except in relation to the sixth
applicant, the United Kingdom had not complied with its investigative
duty under Article 2.
- The
Government accepted that the sixth applicant’s son had been
within United Kingdom jurisdiction but denied that the United Kingdom
had jurisdiction over any of the other deceased. They contended that,
since the second and third applicants’ relatives had been
killed after the adoption of United Nations Security Council
Resolution 1511 (see paragraph 16 above), the acts which led to their
deaths were attributable to the United Nations and not to the United
Kingdom. In addition, the Government contended that the fifth
applicant’s case should be declared inadmissible for
non-exhaustion of domestic remedies and that the fifth and sixth
applicants no longer had victim status.
A. Admissibility
1. Attribution
- The
Government pointed out that the operations that led to the deaths of
the second and third applicants’ relatives occurred after
16 October 2003, when the United Nations Security Council
adopted resolution 1511. Paragraph 13 of that resolution authorised a
Multi-National Force to take “all necessary measures to
contribute to the maintenance of security and stability in Iraq”
(see paragraph 16 above). It followed that, in conducting the
relevant operations in which the second and third applicants’
relatives were shot, United Kingdom troops were not exercising the
sovereign authority of the United Kingdom but the international
authority of the Multi-National Force acting pursuant to the binding
decision of the United Nations Security Council.
- The
applicants stressed that the Government had not raised this argument
at any stage during the domestic proceedings. Moreover, an identical
argument had been advanced by the Government and rejected by the
House of Lords in R (on the application of Al-Jedda) (FC)
(Appellant) v. Secretary of State for Defence (Respondent)
[2007] UKHL 58.
- The
Court recalls that it is intended to be subsidiary to the national
systems safeguarding human rights. It is, therefore, appropriate that
the national courts should initially have the opportunity to
determine questions of the compatibility of domestic law with the
Convention and that, if an application is nonetheless subsequently
brought before the Court, it should have the benefit of the views of
the national courts, as being in direct and continuous contact with
the forces of their countries. It is thus of importance that the
arguments put by the Government before the national courts should be
on the same lines as those put before this Court. In particular, it
is not open to a Government to put to the Court arguments which are
inconsistent with the position they adopted before the national
courts (A. and Others v. the United Kingdom [GC], no.
3455/05, § 154, ECHR 2009 ...).
- The
Government did not contend before the national courts that any of the
killings of the applicants’ relatives were not attributable to
United Kingdom armed forces. The Court considers, therefore, that the
Government are estopped from raising this objection in the present
proceedings.
2. Jurisdiction
- The
Government further contended that the acts in question took place in
southern Iraq and outside the United Kingdom’s jurisdiction
under Article 1 of the Convention. The sole exception was the killing
of the sixth applicant’s son, which occurred in a British
military prison over which the United Kingdom did have jurisdiction.
- The
Court considers that the question whether the applicants’ cases
fall within the jurisdiction of the respondent State is closely
linked to the merits of their complaints. It therefore joins this
preliminary question to the merits.
3. Exhaustion of domestic remedies
- The
Government contended that the fifth applicant’s case should be
declared inadmissible for non-exhaustion of domestic remedies. They
pointed out that although he brought judicial review proceedings
alleging breaches of his substantive and procedural rights under
Articles 2 and 3, his claim was stayed pending resolution of the six
test cases (see paragraph 73 above). After those claims had been
resolved, it would have been open to the applicant to apply to the
Divisional Court to lift the stay, but he did not do so. His case was
not a shooting incident, and the domestic courts had not had the
opportunity to consider the facts relevant to his claims that his son
was within the jurisdiction of the United Kingdom and that there had
been a breach of the procedural obligation.
- The
applicants invited the Court to reject this submission. A judicial
review claim had been lodged by the fifth applicant on 5 May 2004. It
was, by agreement, stayed pending the outcome of the six test cases
(see paragraph 73 above). The fifth applicant would have had no
reasonable prospects of success if, after the House of Lords gave
judgment in Al-Skeini, he had sought to revive and pursue his
stayed judicial review claim. The lower courts would have been bound
by the House of Lords’ interpretation of Article 1 and would
have applied it so as to find that the applicant’s deceased son
had not been within United Kingdom jurisdiction.
- The
Court observes that, according to the fifth applicant, his son died
when, having been arrested by United Kingdom soldiers on suspicion of
looting, he was driven in an army vehicle to the river and forced to
jump in. His case is, therefore, distinguishable on its alleged facts
from those of the first, second and fourth applicants, whose
relatives were shot by British soldiers; the third applicant, whose
wife was shot during exchange of fire between British troops and
unknown gunmen; and the sixth applicant, whose son was killed while
detained in a British military detention facility. It is true that
the House of Lords in the Al-Skeini proceedings did not have
before it a case similar to the fifth applicant’s, where an
Iraqi civilian met his death having been taken into British military
custody, but without being detained in a military prison.
Nonetheless, the Court considers that the applicants are correct in
their assessment that the fifth applicant would have had no prospects
of success had he subsequently sought to pursue his judicial review
application in the domestic courts. Lord Brown, with whom the
majority of the House of Lords agreed, made it clear that he
preferred the approach to jurisdiction in the sixth applicant’s
case taken by the Divisional Court, namely that jurisdiction arose in
respect of Baha Mousa only because he died while detained in a
British military prison (see paragraph 88 above). In these
circumstances, the Court does not consider that the fifth applicant
can be criticised for failing to attempt to revive his claim before
the Divisional Court. It follows that the Government’s
preliminary objection based on non-exhaustion of domestic remedies
must be rejected.
4. Victim status
- The
Government submitted that the fifth and sixth applicants could no
longer claim to be victims of any violations of their rights under
Article 2, since the death of each of their sons had been fully
investigated by the national authorities and compensation paid to the
applicants.
- The
Court considers that this question also is closely linked and should
be joined to the merits of the complaint under Article 2.
5. Conclusion on admissibility
- The
Court considers that the application raises serious questions of fact
and law which are of such complexity that their determination should
depend on an examination on the merits. It cannot, therefore, be
considered manifestly ill-founded within the meaning of Article 35 §
3 of the Convention, and no other ground for declaring it
inadmissible has been established. It must therefore be declared
admissible.
B. The merits
1. Jurisdiction
(a) The parties’ arguments
(i) The Government
- The
Government submitted that the leading authority on the concept of
“jurisdiction” in Article 1 of the Convention was the
Court’s decision in Banković and Others v. Belgium and
Others [GC] (dec.), no. 52207/99, ECHR 2001-XII). Banković
established that the fact that an individual had been affected by
an act committed by a Contracting State or its agents was not
sufficient to establish that he was within that State’s
jurisdiction. Jurisdiction under Article 1 was “primarily”
or “essentially” territorial and any extension of
jurisdiction outside the territory of the Contracting State was
“exceptional” and required “special justification
in the particular circumstances of each case”. The Court had
held in Banković that the Convention rights could not be
“divided and tailored”. Within its jurisdiction, a
Contracting State was under an obligation to secure all the
Convention rights and freedoms. The Court also held in Banković
that the Convention was “an instrument of European public
order” and “a multi lateral treaty operating,
subject to Article 56 of the Convention, in an essentially regional
context and notably in the legal space (espace juridique) of
the Contracting States”. The essentially territorial basis of
jurisdiction reflected principles of international law and took
account of the practical and legal difficulties faced by a State
operating on another State’s territory, particularly in regions
which did not share the values of the Council of Europe Member
States.
- In the Government’s submission, the Grand
Chamber in Banković, having conducted a comprehensive
review of the case-law, identified a limited number of exceptions to
the territorial principle. The principal exception derived from the
case-law on northern Cyprus and applied when a State, as a
consequence of military action, exercised effective control of an
area outside its national territory. Where the Court had found this
exceptional basis of jurisdiction to apply, it had stressed that the
State exercising effective control was thereby responsible for
securing the entire range of substantive Convention rights in the
territory in question (see Loizidou v. Turkey (preliminary
objections), 23 March 1995, § 62, Series A no. 310; Cyprus v.
Turkey [GC], no. 25781/94, §§ 75-80, ECHR 2001 IV;
Banković, cited above, §§ 70-71; Ilaşcu
and Others v. Moldova and Russia [GC], no. 48787/99, §§
314-316, ECHR 2004 VII). Moreover, despite dicta to the contrary
in the subsequent Chamber judgment in Issa and Others v. Turkey,
no. 31821/96, 16 November 2004, the Grand Chamber in Banković
made it clear that the “effective control of an area”
basis of jurisdiction could apply only within the Convention legal
space. In addition to the control exercised by Turkey in northern
Cyprus, the Court had applied this exception in relation to only one
other area, Transdniestria, which also fell within the territory of
another Contracting State. Any other approach would risk requiring
the State to impose culturally alien standards, in breach of the
principle of sovereign self determination.
- According
to the Government, the Court’s case-law on Article 56 of the
Convention further indicated that a State would not be held to
exercise Article 1 jurisdiction over an overseas territory merely by
virtue of exercising effective control there: see Quark Fishing
Ltd v. the United Kingdom (dec.), no. 15305/06, ECHR 2006 XIV.
If the effective control of territory exception were held to apply
outside the territories of the Contracting States, this would lead to
the conclusion that a State was free to choose whether or not to
extend the Convention and its Protocols to a non metropolitan
territory outside the Convention “espace juridique”
over which it might in fact have exercised control for decades, but
was not free to choose whether to extend the Convention to
territories outside that space over which it exercised effective
control as a result of military action only temporarily, for example
only until peace and security could be restored.
- The
Government submitted that, since Iraq fell outside the Convention
legal space, the “effective control of an area”
exceptional basis of jurisdiction could not apply. In any event,
the United Kingdom did not have “effective control” over
any part of Iraq during the relevant time. This was the conclusion of
the domestic courts, which had all the available evidence before
them. The number of Coalition Forces, including United Kingdom
forces, was small: in South East Iraq, an area of 96,000 square
kilometres and a population of 4.6 million, there were 14,500
Coalition troops, including 8,150 United Kingdom troops. United
Kingdom troops operated in Al-Basrah and Maysan provinces, which had
a population of 2.76 million for 8,119 troops. United Kingdom forces
in Iraq were faced with real practical difficulties in restoring
conditions of security and stability so as to enable the Iraqi people
freely to determine their political future. The principal reason for
this was that at the start of the occupation there was no competent
system of local law enforcement in place, whilst at the same time
there was widespread violent crime, terrorism and tribal fighting
involving the use of light and heavy weapons.
- Governing
authority in Iraq during the occupation was exercised by the
Coalition Provisional Authority, which was governed by the United
States Ambassador Paul Bremer and which was not a subordinate
authority of the United Kingdom. In addition, from July 2003 there
was a central Iraqi Governing Council and a number of local Iraqi
councils. The status of the Coalition Provisional Authority and Iraqi
administration was wholly different from that of the “TRNC”
in Cyprus or the “MRT” in Transdniestria, which were both
characterised by the Court as “self proclaimed authorities
which are not recognised by the international community”. The
authority of the Coalition Provisional Authority and the Iraqi
administration was recognised by the international community, through
the United Nations Security Council. Moreover, the purpose of the
United Kingdom’s joint occupation of Iraq was to transfer
authority as soon as possible to a representative Iraqi
administration. In keeping with this purpose, the occupation lasted
for only just over a year.
- In
the Government’s submission, the fact that between May 2003 and
June 2004 the United Kingdom was an Occupying Power within the
meaning of the Hague Regulations (see paragraph 89 above) did not, in
itself, give rise to an obligation to secure the Convention rights
and freedoms to the inhabitants of South East Iraq. As an Occupying
Power the United Kingdom did not have sovereignty over Iraq and was
not entitled to treat the area under its occupation as its own
territory or as a colony subject to its complete power and authority.
The Hague Regulations did not confer on the United Kingdom the power
to amend the laws and constitution of Iraq so as to conform to the
United Kingdom’s own domestic law or regional multi-lateral
international obligations such as the Convention. On the contrary,
the Hague Regulations set limits on the United Kingdom’s
powers, notably the obligation to respect the laws in force in Iraq
unless “absolutely prevented”. Moreover, the resolutions
passed by the United Nations Security Council recognised that
governing authority in Iraq during the occupation was to be exercised
by the Coalition Provisional Authority and that the aim of the
occupation was to transfer authority as soon as possible to a
representative Iraqi administration. It followed that the
international legal framework, far from establishing that the United
Kingdom was obliged to secure Convention rights in Iraq, established
instead that the United Kingdom would have been acting contrary to
its international obligations if it had sought to modify the
constitution of Iraq so as to comply with the Convention. In any
event, the Court’s case-law demonstrated that it approached the
question whether a State exercised jurisdiction extra-territorially
as one of fact, informed by the particular nature and history of the
Convention. The obligations imposed by the Fourth Geneva Convention
and the Hague Regulations were carefully tailored to the
circumstances of occupation and could not in themselves have
consequences for the very different issue of jurisdiction under the
Convention.
- The
Government accepted that it was possible to identify from the
case-law a number of other exceptional categories where jurisdiction
could be exercised by a State outside its territory and outside the
Convention region. In Banković (cited above) the Grand
Chamber referred to other cases involving the activities of
diplomatic or consular agents abroad and on board craft and vessel
registered in or flying the flag of the State. In Banković
the Court also cited as an example Drozd and Janousek v.
France and Spain, 26 June 1992, Series A no. 240, which
demonstrated that jurisdiction could be exercised by a State if it
brought an individual before its own court, sitting outside its
territory, to apply its own criminal law. In Öcalan v. Turkey
[GC], no. 46221/99, ECHR 2005 IV the Grand Chamber held that
Turkey had exercised jurisdiction over the applicant when he was
“arrested by members of the Turkish security forces outside an
aircraft registered in Turkey in the international zone of Nairobi
airport” and “physically forced to return to Turkey by
Turkish officials and was under their authority and control following
his arrest and return to Turkey”. In the Government’s
submission, none of these exceptions applied in the first, second,
third and fourth applicants’ cases.
- The
Government contended that the applicants’ submission that, in
shooting their relatives, the United Kingdom soldiers exercised
“authority and control” over the deceased, so as to bring
them within the United Kingdom’s jurisdiction, was directly
contrary to the decision in Banković (cited above). In
Banković the Grand Chamber considered the applicability
of the Convention to extra-territorial military operations generally,
having regard inter alia to State practice and Article 15 of
the Convention, and concluded that the Convention did not apply to
the military action of the respondent States which resulted in those
applicants’ relatives’ deaths. Equally, in the present
case, the military action of United Kingdom soldiers in shooting the
applicants’ relatives whilst carrying out military security
operations in Iraq did not constitute an exercise of jurisdiction
over them. No distinction could be drawn in this respect between a
death resulting from a bombing and one resulting from a shooting in
the course of a ground operation.
- The
Government rejected the applicants’ argument that a
jurisdictional link existed because the United Kingdom soldiers were
exercising “legal authority” over the deceased, derived
from the obligation under the Hague Regulations to ensure “public
order and safety” in the occupied territory. The meaning of
Article 1 of the Convention was autonomous and could not be
determined by reference to wholly distinct provisions of
international humanitarian law. Moreover, the duty relied on was owed
to every Iraqi citizen within the occupied territory and, if the
applicants were correct, the United Kingdom would have been required
to secure Convention rights to them all. Nor could it be said that
United Kingdom troops at the relevant time were exercising “public
functions” pursuant to treaty arrangements (see Banković,
cited above, § 73). In fact, United Kingdom troops were
exercising military power in an effort to create a situation in which
governmental functions could be exercised and the rule of law could
properly operate. No sensible distinction could be drawn between the
different types of military operation undertaken by them. There was
no basis for concluding that the applicability of the Convention
should turn upon the particular activity that a soldier was engaged
in at the time of the alleged violation, whether street patrol,
ground offensive or aerial bombardment.
- In
conclusion, the Government submitted that the domestic courts were
correct that the United Kingdom did not exercise any Article 1
jurisdiction over the relatives of the first to fourth applicants at
the time of their deaths. The cases could not be distinguished from
that of the deceased in Banković, (cited above). Nor were
the facts of the fifth applicant’s case sufficient to
distinguish it in this respect from those of the first to fourth
applicants. The fifth applicant’s son was not arrested in
circumstances similar to those which founded jurisdiction in Öcalan
(cited above). As a suspected looter, in the situation of extreme
public disorder in the immediate aftermath of the cessation of major
combat activities, he was physically required by United Kingdom
soldiers to move from the place of looting to another location. The
acts of the United Kingdom soldiers involved an assertion of military
power over the fifth applicant’s son, but no more. The
Government accepted that the sixth applicant’s son was within
United Kingdom jurisdiction when he died, but only on the basis found
by the Divisional Court and subsequently by Lord Brown, with whom
Lords Rodger and Carswell and Baroness Hale agreed, namely that
jurisdiction was established when the deceased was detained in a
United Kingdom-run military detention facility located in a United
Kingdom base, essentially by analogy with the extra-territorial
exception made for embassies. At the hearing before the Court,
counsel for the Government confirmed that it was the Government’s
position that, for example, an individual being taken to a British
detention facility on foreign soil in a British military vehicle
would not fall within the United Kingdom’s jurisdiction until
the moment the vehicle and individual passed within the perimeter of
the facility.
- This
did not mean that United Kingdom troops were free to act with
impunity in Iraq. As Lord Bingham observed in his opinion in the
House of Lords, the acts of the United Kingdom forces were subject to
and regulated by international humanitarian law. United Kingdom
soldiers in Iraq were also subject to United Kingdom domestic
criminal law and could be prosecuted in the national courts. The
International Criminal Court had jurisdiction to prosecute war crimes
where the State was unwilling or unable to prosecute. Civil claims in
tort could also be brought in the United Kingdom courts against
United Kingdom agents and authorities alleged to have caused injury
to individuals in Iraq.
(ii) The applicants
- The
applicants accepted that jurisdiction under Article 1 was essentially
territorial. However, they underlined that it was not exclusively so
and that it was possible for a Contracting State to exercise
jurisdiction extra-territorially. The procedure under Article 56
allowed States to extend the reach of the Convention to other
territories, with due regard to local requirements, by means of a
notified declaration. However, it was clear from the case-law that
Article 56 was not an exclusive mechanism for extra territorial
applicability.
- The
applicants submitted that the case-law of the Court and Commission
recognised the exercise by States of jurisdiction extra territorially
through the principles of both “State agent authority”
and “effective control of an area”. The first reference
to “State agent authority” jurisdiction was in the
Commission’s admissibility decision in Cyprus v. Turkey,
nos. 6780/74 and 6950/75, Commission decision on admissibility of
26 May 1975, vol. 2 Decisions and Reports (DR), p. 125, at p. 136,
when the Commission observed that: “... authorised agents of
the State ... not only remain under its jurisdiction when abroad but
bring any other persons or property ‘within the jurisdiction’
of that State, to the extent that they exercise authority over such
persons or property”. This principle was subsequently applied
in Cyprus v. Turkey, nos. 6780/74 and 6950/75, Commission
Report of 10 July 1976, when the Commission found the actions of
Turkish soldiers in Cyprus involved the exercise of Turkish
jurisdiction. These actions comprised the killing of civilians,
including individuals subject to the order of an officer and others
shot while attempting to recover possessions from property under
Turkish control; the rape of women in empty houses and on the street;
the arbitrary detention of civilians; cruelty to detainees;
displacement of civilians; and military confiscation of property.
Since Turkey did not accept the Court’s jurisdiction until
1990, the case was never examined by the Court. The Commission’s
report, however, did not support the suggestion that military
custodial authority alone constituted a relationship of sufficient
authority and control.
- The
applicants pointed out that in the later cases against Turkey
concerning northern Cyprus which were examined by the Commission and
the Court during the 1990s, Turkey accepted that its jurisdiction
under Article 1 would be engaged in respect of the direct acts of
Turkish military personnel. However, the Turkish Government shifted
ground and argued that it did not have jurisdiction because the acts
in question were not committed by Turkish agents but were instead
attributable to an autonomous local administration installed in 1983,
the “TRNC”. The Court in Loizidou v. Turkey
(preliminary objections) and in Cyprus v. Turkey, both cited
above, countered this argument by elaborating the principle of
“effective control of an area”, which applied (see
Loizidou (preliminary objections) § 62):
“when as a consequence of military action -
whether lawful or unlawful – [a Contracting State] exercises
effective control of an area outside its national territory. The
obligation to secure, in such an area, the rights and freedoms set
out in the Convention derives from the fact of such control whether
it be exercised directly, through its armed forces, or through a
subordinate local administration”.
In
these cases the Court did not give any indication that the “State
agent authority” principle had been supplanted. In fact, in
Loizidou v. Turkey (preliminary objections), before setting
out the principle of “effective control of an area”
jurisdiction, the Court observed (§ 62), that:
“In addition, the responsibility of Contracting
Parties can be involved because of acts of their authorities, whether
performed within or outside national boundaries, which produce
effects outside their own territory (see the Drozd and Janousek
v. France and Spain judgment of 26 June 1992, Series A no.
240, p. 29, para. 91)”.
Furthermore,
its conclusion on the question whether the alleged violation was
capable of falling within Turkish jurisdiction relied on both grounds
equally (§ 63):
“In this connection the respondent Government have
acknowledged that the applicant’s loss of control of her
property stems from the occupation of the northern part of Cyprus by
Turkish troops and the establishment there of the ‘TRNC’.
Furthermore, it has not been disputed that the applicant was
prevented by Turkish troops from gaining access to her property.”
In
the Court’s subsequent case-law, the two principles had
continued to be placed side-by-side (see Banković §§
69-73; Issa §§ 69-71 (both cited above);
Andreou v. Turkey (dec.), no. 45653/99, 2 June 2008; Solomou
and Others v. Turkey, no. 36832/97, §§ 44-45, 24 June
2008). There was no precedent of the Court to suggest that “State
agent authority” jurisdiction was inapt as a means of analysing
direct actions by military State agents exercising authority.
- The
applicants argued that their dead family members fell within the
United Kingdom’s jurisdiction under the “State agent
authority” principle. The Government had accepted, in respect
of the sixth applicant’s son, that the exercise of authority
and control by British military personnel in Iraq was capable of
engaging the United Kingdom’s extra-territorial jurisdiction.
However, jurisdiction in extra-territorial detention cases did not
rest on the idea of a military prison as a quasi-territorial enclave.
Jurisdiction in respect of the sixth applicant’s son would
equally have arisen had he been tortured and killed while under
arrest at the hotel where he worked or in a locked army vehicle
parked outside. Moreover, the authority and control exercised by
military personnel was not limited in principle to actions as
custodians, even if the arrest and detention of persons outside State
territory could be seen as a classic instance of State agent
authority (as was argued by the respondent Governments in Banković,
cited above, § 37).
- The
applicants submitted that the deceased relatives of all six
applicants fell within United Kingdom jurisdiction by virtue of the
authority and control exercised over them by United Kingdom State
agents. They emphasised that British armed forces had responsibility
for public order in Iraq, maintaining the safety and security of
local civilians and supporting the civil administration. In
performing these functions, the British armed forces were operating
within the wider context of the United Kingdom’s occupation of
South East Iraq. The control and authority was also exercised through
CPA South Regional Office, which was staffed primarily by British
personnel. The individuals killed were civilians to whom the British
armed forces owed the duty of safety and security. There was thus a
particular relationship of authority and control between the soldiers
and the civilians killed. To find that these individuals fell within
the authority of the United Kingdom armed forces would not require
the acceptance of the impact based approach to jurisdiction
which was rejected in Banković (cited above), but
would instead rest on a particular relationship of authority and
control. In the alternative, the applicants argued that,
at least in respect of the deceased relatives of the second, fourth,
fifth and sixth applicants, the British soldiers exercised sufficient
authority and control to bring the victims within the United
Kingdom’s jurisdiction.
- The
applicants further contended that their dead relatives fell within
United Kingdom jurisdiction because, at the relevant time, the United
Kingdom was in effective control of South East Iraq. It was their
case that where, as a matter of international law, territory was
occupied by a State as an Occupying Power, because that territory was
actually placed under the authority of that State’s hostile
army (see Article 42 of the Hague Regulations: paragraph 89 above),
that was sufficient to constitute extra territorial jurisdiction
under Article 1 of the Convention. This consequence of belligerent
occupation reflected the approach in international law, both as
regards extra-territorial jurisdiction and extra territorial
application of human rights based on “jurisdiction”.
- They
rejected the idea that the “effective control of an area”
basis of jurisdiction could apply only within the Convention legal
space. Furthermore, they reasoned that to require a State to exert
complete control, similar to that exercised within its own territory,
would lead to the perverse position whereby facts disclosing a
violation of the Convention would, instead of entitling the victim to
a remedy, form the evidential basis for a finding that the State did
not exercise jurisdiction. Similarly, defining the existence of
control over an area by reference to troop numbers alone would be
uncertain, allow evasion of responsibility and promote arbitrariness.
The application of the Convention should influence the actions of the
Contracting States, prompting careful consideration of military
intervention and ensuring sufficient troop numbers to meet its
international obligations. The applicants endorsed the approach
suggested by Sedley LJ in the Court of Appeal (see paragraph 80
above), that a Contracting State in military occupation was under a
duty to do everything possible to keep order and protect essential
civil rights. While the Court’s case-law (the northern Cyprus
cases and Ilaşcu, cited above) included details of
numbers of military personnel deployed, this was relevant to
establishing whether a territory had actually been placed under the
authority of a hostile army, in cases where the respondent States
(Turkey and Russia) denied being in occupation. Where, as in the
present case, the respondent State accepted that it was in occupation
of the territory, such an assessment was unnecessary.
- The
applicants argued that the duty on an occupying State under
international humanitarian law to apply the domestic law of the
territorial State and not to impose its own law could not be used to
evade jurisdiction under the Convention, since the “effective
control of an area” basis of jurisdiction applied also to
unlawful occupation. They referred to the judgment of the
International Court of Justice in Armed Activities on the
Territory of the Congo and its Advisory Opinion Legal
Consequences of the Construction of a Wall in the Occupied
Palestinian Territory (see paragraphs 90-91 above), where the
International Court of Justice found that the occupying State was
under a duty to apply international human rights law. The clear
principle emerging from these cases was that belligerent occupation
in international law was a basis for the recognition of
extra territorial human rights jurisdiction.
iii. The third parties
- The
interveners (see paragraph 6 above) emphasised that the Convention
was adopted in the aftermath of the events in Europe of the 1930s and
1940s, when appalling human rights abuses were carried out by
military forces in occupied territories. It was inconceivable that
the drafters of the Convention should have considered that the
prospective responsibilities of States should be confined to
violations perpetrated on their own territories. Moreover, public
international law required that the concept of “jurisdiction”
be interpreted in the light of the object and purpose of the
particular treaty. The Court had repeatedly had regard to the
Convention’s special character as an instrument for human
rights protection. It was relevant that one of the guiding principles
under international human rights law, which had been applied by the
United Nations Human Rights Committee and the International Court of
Justice when considering the conduct of States outside their
territory, was the need to avoid unconscionable double standards, by
allowing a State to perpetrate violations on foreign territory which
would not be permitted on its own territory.
- The
interveners further emphasised that it was a common ground between
the international and regional courts and human rights bodies that,
when determining whether the acts or omissions of a State’s
agents abroad fall within its “jurisdiction”, regard must
be had to the existence of control, authority or power of that State
over the individual in question. When the agents of the State
exercised such control, authority or power over an individual outside
its territory, that State’s obligation to respect human rights
continued. This was a factual test, to be determined with regard to
the circumstances of the particular act or omission of the State
agents. Certain situations, such as military occupations, created a
strong presumption that individuals were under the control, authority
or power of the occupying State. Indeed, one principle which emerged
from the case-law of the International Court of Justice inter alia
(see paragraphs 90-91 above), was that once a situation was qualified
as an occupation within the meaning of international humanitarian
law, there was a strong presumption of “jurisdiction” for
the purposes of the application of human rights law.
(b) The Court’s assessment
(i) General principles relevant to
jurisdiction under Article 1 of the Convention
- Article
1 of the Convention reads as follows:
“The High Contracting Parties shall secure to
everyone within their jurisdiction the rights and freedoms defined in
Section I of [the] Convention.”
As
provided by this Article, the engagement undertaken by a Contracting
State is confined to “securing” (“reconnaître”
in the French text) the listed rights and freedoms to persons within
its own “jurisdiction” (see Soering v. the United
Kingdom, 7 July 1989, § 86, Series A no. 161; Banković
and Others v. Belgium and Others [GC] (dec.), no. 52207/99, §
66, ECHR 2001 XII). “Jurisdiction” under
Article 1 is a threshold criterion. The exercise of jurisdiction is a
necessary condition for a Contracting State to be able to be held
responsible for acts or omissions imputable to it which give rise to
an allegation of the infringement of rights and freedoms set forth in
the Convention (see Ilaşcu and Others v. Moldova and Russia
[GC], no. 48787/99, § 311, ECHR 2004 VII).
(α) The territorial principle
- A
State’s jurisdictional competence under Article 1 is primarily
territorial (see Soering, cited above, § 86; Banković,
cited above, §§ 61 and 67; Ilaşcu, cited
above, § 312). Jurisdiction is presumed to be exercised normally
throughout the State’s territory (Ilaşcu, cited
above, § 312; Assanidze v. Georgia [GC], no. 71503/01, §
139, ECHR 2004 II). Conversely, acts of the Contracting States
performed, or producing effects, outside their territories can
constitute an exercise of jurisdiction within the meaning of
Article 1 only in exceptional cases (Banković, cited
above, § 67).
- To
date, the Court in its case-law has recognised a number of
exceptional circumstances capable of giving rise to the exercise of
jurisdiction by a Contracting State outside its own territorial
boundaries. In each case, the question whether exceptional
circumstances exist which require and justify a finding by the Court
that the State was exercising jurisdiction extra-territorially must
be determined with reference to the particular facts.
(β) State agent authority and control
- The
Court has recognised in its case-law that, as an exception to the
principle of territoriality, a Contracting State’s jurisdiction
under Article 1 may extend to acts of its authorities which produce
effects outside its own territory (see Drozd and Janousek v.
France and Spain, judgment of 26 June 1992, Series A no.
240, § 91; Loizidou v. Turkey (preliminary objections),
23 March 1995, § 62, Series A no. 310; Loizidou v. Turkey
(merits), 18 December 1996, § 52, Reports of Judgments and
Decisions 1996 VI; and Banković, cited above,
69). The statement of principle, as it appears in Drozd and
Janousek and the other cases just cited, is very broad: the Court
states merely that the Contracting Party’s responsibility “can
be involved” in these circumstances. It is necessary to examine
the Court’s case-law to identify the defining principles.
-
First, it is clear that the acts of diplomatic and consular agents,
who are present on foreign territory in accordance with provisions of
international law, may amount to an exercise of jurisdiction when
these agents exert authority and control over others (Banković,
cited above, § 73; see also X v. Federal Republic
of Germany, no. 1611/62, Commission decision of 25 September
1965, Yearbook of the European Convention on Human Rights, vol. 8,
pp. 158 and 169; X v. the United Kingdom, no. 7547/76,
Commission decision of 15 December 1977; WM v. Denmark, no.
17392/90, Commission decision of 14 October 1993).
- Secondly,
the Court has recognised the exercise of extra-territorial
jurisdiction by a Contracting State when, through the consent,
invitation or acquiescence of the Government of that territory, it
exercises all or some of the public powers normally to be exercised
by that Government (Banković, cited above, § 71).
Thus where, in accordance with custom, treaty or other agreement,
authorities of the Contracting State carry out executive or judicial
functions on the territory of another State, the Contracting State
may be responsible for breaches of the Convention thereby incurred,
as long as the acts in question are attributable to it rather than to
the territorial State (see Drozd and Janousek, cited above;
Gentilhomme and Others v. France, nos. 48205/99, 48207/99
and 48209/99, judgment of 14 May 2002; and also X and Y v.
Switzerland, nos. 7289/75 and 7349/76, Commission’s
admissibility decision of 14 July 1977, DR 9, p. 57).
- In
addition, the Court’s case-law demonstrates that, in certain
circumstances, the use of force by a State’s agents operating
outside its territory may bring the individual thereby brought under
the control of the State’s authorities into the State’s
Article 1 jurisdiction. This principle has been applied where an
individual is taken into the custody of State agents abroad. For
example, in Öcalan v. Turkey [GC], no. 46221/99, §
91, ECHR 2005 IV, the Court held that “directly after
being handed over to the Turkish officials by the Kenyan officials,
the applicant was effectively under Turkish authority and therefore
within the ‘jurisdiction’ of that State for the purposes
of Article 1 of the Convention, even though in this instance Turkey
exercised its authority outside its territory”. In Issa and
Others v. Turkey, no. 31821/96, 16 November 2004, the Court
indicated that, had it been established that Turkish soldiers had
taken the applicants’ relatives into custody in Northern Iraq,
taken them to a nearby cave and executed them, the deceased would
have been within Turkish jurisdiction by virtue of the soldiers’
authority and control over them. In Al-Saadoon and Mufdhi v. the
United Kingdom (dec.), no. 61498/08, §§ 86-89, 30 June
2009, the Court held that two Iraqi nationals detained in
British-controlled military prisons in Iraq fell within the
jurisdiction of the United Kingdom, since the United Kingdom
exercised total and exclusive control over the prisons and the
individuals detained in them. Finally, in Medvedyev and Others
v. France [GC], no. 3394/03, § 67,
ECHR 2010-..., the Court held that the applicants were within French
jurisdiction by virtue of the exercise by French agents of full and
exclusive control over a ship and its crew from the time of its
interception in international waters. The Court
does not consider that jurisdiction in the above cases arose solely
from the control exercised by the Contracting State over the
buildings, aircraft or ship in which the individuals were held. What
is decisive in such cases is the exercise of physical power and
control over the person in question.
- It
is clear that, whenever the State through its agents exercises
control and authority over an individual, and thus jurisdiction, the
State is under an obligation under Article 1 to secure to that
individual the rights and freedoms under Section 1 of the Convention
that are relevant to the situation of that individual. In this sense,
therefore, the Convention rights can be “divided and tailored”
(compare Banković, cited above, § 75).
(γ) Effective control over an area
- Another
exception to the principle that jurisdiction under Article 1 is
limited to a State’s own territory occurs when, as a
consequence of lawful or unlawful military action, a Contracting
State exercises effective control of an area outside that national
territory. The obligation to secure, in such an area, the rights and
freedoms set out in the Convention, derives from the fact of such
control, whether it be exercised directly, through the Contracting
State’s own armed forces, or through a subordinate local
administration (Loizidou (preliminary objections), cited
above, § 62; Cyprus v. Turkey [GC], no. 25781/94, §
76, ECHR 2001 IV, Banković, cited above, § 70;
Ilaşcu, cited above, §§ 314-316;
Loizidou (merits), cited above, § 52). Where the fact of
such domination over the territory is established, it is not
necessary to determine whether the Contracting State exercises
detailed control over the policies and actions of the subordinate
local administration. The fact that the local administration survives
as a result of the Contracting State’s military and other
support entails that State’s responsibility for its policies
and actions. The controlling State has the responsibility under
Article 1 to secure, within the area under its control, the entire
range of substantive rights set out in the Convention and those
additional Protocols which it has ratified. It will be liable for any
violations of those rights (Cyprus v. Turkey, cited above, §§
76-77).
- It
is a question of fact whether a Contracting State exercises effective
control over an area outside its own territory. In determining
whether effective control exists, the Court will primarily have
reference to the strength of the State’s military presence in
the area (see Loizidou (merits), cited above, §§ 16
and 56; Ilaşcu, cited above, § 387). Other
indicators may also be relevant, 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
(see Ilaşcu, cited above, §§ 388-394).
- The
“effective control” principle of jurisdiction set out
above does not replace the system of declarations under Article 56 of
the Convention (formerly Article 63) which the States decided, when
drafting the Convention, to apply to territories overseas for whose
international relations they were responsible. Article 56 § 1
provides a mechanism whereby any State may decide to extend the
application of the Convention, “with due regard ... to local
requirements,” to all or any of the territories for whose
international relations it is responsible. The existence of this
mechanism, which was included in the Convention for historical
reasons, cannot be interpreted in present conditions as limiting the
scope of the term “jurisdiction” in Article 1. The
situations covered by the “effective control” principle
are clearly separate and distinct from circumstances where a
Contracting State has not, through a declaration under Article 56,
extended the Convention or any of its Protocols to an overseas
territory for whose international relations it is responsible (see
Loizidou (preliminary objections), cited above, §§
86-89 and Quark Fishing Ltd v. the United Kingdom (dec.), no.
15305/06, ECHR 2006-...).
(δ) The Convention legal space (“espace
juridique”)
- The
Convention is a constitutional instrument of European public order
(see Loizidou v. Turkey (preliminary objections), cited above,
§ 75). It does not govern the actions of States not Parties
to it, nor does it purport to be a means of requiring the Contracting
States to impose Convention standards on other States (see Soering,
cited above, § 86).
- The
Court has emphasised that, where the territory of one Convention
State is occupied by the armed forces of another, the occupying State
should in principle be held accountable under the Convention for
breaches of human rights within the occupied territory, because to
hold otherwise would be to deprive the population of that territory
of the rights and freedoms hitherto enjoyed and would result in a
“vacuum” of protection within the “Convention legal
space” (see Loizidou (merits), cited above, §78;
Banković, cited above, § 80). However, the
importance of establishing the occupying State’s jurisdiction
in such cases does not imply, a contrario, that jurisdiction
under Article 1 of the Convention can never exist outside the
territory covered by the Council of Europe Member States. The Court
has not in its case-law applied any such restriction (see amongst
other examples Öcalan, Issa, Al-Saadoon and Mufdhi,
Medvedyev, all cited above).
(ii) Application of these principles to
the facts of the case
- In
determining whether the United Kingdom had jurisdiction over any of
the applicants’ relatives when they died, the Court takes as
its starting point that, on 20 March 2003, the United Kingdom
together with the United States of America and their coalition
partners, through their armed forces, entered Iraq with the aim of
displacing the Ba’ath regime then in power. This aim was
achieved by 1 May 2003, when major combat operations were declared to
be complete and the United States and the United Kingdom became
Occupying Powers within the meaning of Article 42 of the Hague
Regulations (see paragraph 89 above).
- As
explained in the letter dated 8 May 2003 sent jointly by the
Permanent Representatives of the United Kingdom and the United States
to the President of the United Nations Security Council (see
paragraph 11 above), the United States and the United Kingdom, having
displaced the previous regime, created the Coalition Provisional
Authority “to exercise powers of government temporarily”.
One of the powers of government specifically referred to in the
letter of 8 May 2003 to be exercised by the United States and the
United Kingdom through the Coalition Provisional Authority was the
provision of security in Iraq, including the maintenance of civil law
and order. The letter further stated that “The United States,
the United Kingdom and Coalition partners, working through the
Coalition Provisional Authority, shall inter alia, provide for
security in and for the provisional administration of Iraq, including
by ... assuming immediate control of Iraqi institutions responsible
for military and security matters”.
- In
its first legislative act, CPA Regulation No. 1 of 16 May 2003,
the Coalition Provisional Authority declared that it would “exercise
powers of government temporarily in order to provide for the
effective administration of Iraq during the period of transitional
administration, to restore conditions of security and stability ...”
(see paragraph 12 above).
- The
contents of the letter of 8 May 2003 were noted by the Security
Council in Resolution 1483, adopted on 22 May 2003. This Resolution
gave further recognition to the security role which had been
assumed by the United States and the United Kingdom when, in
paragraph 4, it called upon the Occupying Powers “to promote
the welfare of the Iraqi people through the effective administration
of the territory, including in particular working towards the
restoration of conditions of security and stability ...”
(see paragraph 14 above).
- During
this period the United Kingdom had command of the military division
Multinational Division (South East), which included the province of
Al-Basrah, where the applicants’ relatives died. From 1 May
2003 onwards the British forces in Al-Basrah took responsibility for
maintaining security and supporting the civil administration. Among
the United Kingdom’s security tasks were patrols, arrests,
anti-terrorist operations, policing of civil demonstrations,
protection of essential utilities and infrastructure and protecting
police stations (see paragraph 21 above).
- In
July 2003 the Governing Council of Iraq was established. The
Coalition Provisional Authority remained in power, although it was
required to consult with the Governing Council (see paragraph 15
above). In Resolution 1511, adopted on 16 October 2003, the United
Nations Security Council underscored the temporary nature of the
exercise by the Coalition Provisional Authority of the authorities
and responsibilities set out in Resolution 1483. It also authorised
“a multinational force under unified command to take all
necessary measures to contribute to the maintenance of security and
stability in Iraq” (see paragraph 16 above). United Nations
Security Council Resolution 1546, adopted on 8 June 2004, endorsed
“the formation of a sovereign Interim Government of Iraq ...
which will assume full responsibility and authority by 30 June 2004
for governing Iraq” (see paragraph 18 above). In the event, the
occupation came to an end on 28 June 2004, when full authority
for governing Iraq passed to the Interim Iraqi Government from the
Coalition Provisional Authority, which then ceased to exist (see
paragraph 19 above).
(iii) Conclusion as regards jurisdiction
- It
can be seen, therefore, that following the removal from power of the
Ba’ath regime and until the accession of the Interim
Government, the United Kingdom (together with the United States)
assumed in Iraq the exercise of some of the public powers normally to
be exercised by a sovereign government. In particular, the United
Kingdom assumed authority and responsibility for the maintenance of
security in South East Iraq. In these exceptional circumstances,
the Court considers that the United Kingdom, through its soldiers
engaged in security operations in Basrah during the period in
question, exercised authority and control over individuals killed in
the course of such security operations, so as to establish a
jurisdictional link between the deceased and the United Kingdom for
the purposes of Article 1 of the Convention.
- Against
this background, the Court recalls that the deaths at issue in the
present case occurred during the relevant period: the fifth
applicant’s son died on 8 May 2003; the first and fourth
applicants’ brothers died in August 2003; the sixth applicant’s
son died in September 2003; and the spouses of the second and third
applicants died in November 2003. It is not disputed that the deaths
of the first, second, fourth, fifth and sixth applicants’
relatives were caused by the acts of British soldiers during the
course of or contiguous to security operations carried out by British
forces in various parts of Basrah City. It follows that in all these
cases there was a jurisdictional link for the purposes of Article 1
of the Convention between the United Kingdom and the deceased. The
third applicant’s wife was killed during an exchange of fire
between a patrol of British soldiers and unidentified gunmen and it
is not known which side fired the fatal bullet. The Court considers
that, since the death occurred in the course of a United Kingdom
security operation, when British soldiers carried out a patrol in the
vicinity of the applicant’s home and joined in the fatal
exchange of fire, there was a jurisdictional link between the United
Kingdom and this deceased also.
2. Alleged breach of the investigative duty under
Article 2
- The
applicants did not complain before the Court of any substantive
breach of the right to life under Article 2. Instead they complained
that the Government had not fulfilled its procedural duty to carry
out an effective investigation into the killings.
Article
2 of the Convention provides as follows:
“1. Everyone’s right to life
shall be protected by law. No one shall be deprived of his life
intentionally save in the execution of a sentence of a court
following his conviction of a crime for which this penalty is
provided by law.
2. Deprivation of life shall not be regarded
as inflicted in contravention of this article when it results from
the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful
violence;
(b) in order to effect a lawful arrest or to
prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose
of quelling a riot or insurrection.”
(a) The parties’ arguments
(i) The Government
- The
Government reasoned that the procedural duty under Article 2 had to
be interpreted in harmony with the relevant principles of
international law. Moreover, any implied duty should not be
interpreted in such a way as to place an impossible or
disproportionate burden on a Contracting State. The United Kingdom
did not have full control over the territory of Iraq and, in
particular, did not have legislative, administrative or judicial
competence. If the investigative duty were to apply
extra-territorially, it had to take account of these circumstances,
and also of the very difficult security conditions in which British
personnel were operating.
- The
Government accepted that the investigations into the deaths of the
first, second and third applicants’ relatives were not
sufficiently independent for the purposes of Article 2, since in each
case the investigation was carried out solely by the Commanding
Officers of the soldiers alleged to be responsible. However, they
submitted that the investigations carried out in respect of the
fourth and fifth applicants complied with Article 2. Nor had there
been any violation of the investigative duty in respect of the sixth
applicant; indeed, he did not allege that the investigation in his
case had failed to comply with Article 2.
- The
Government emphasised, generally, that the Royal Military Police
investigators were institutionally independent of the armed forces.
They submitted that the Court of Appeal had been correct in
concluding that the Special Investigation Branch of the Royal
Military Police was capable of conducting independent investigations
(see paragraph 82 above), although Brooke LJ had also commented that
the task of investigating loss of life “must be completely
taken away from the military chain of command and vested in the
[Royal Military Police]”. The role of the military chain of
command in notifying the Special Investigations Branch of an incident
requiring investigation, and its subsequent role in referring cases
investigated by Special Investigation Branch to the Army Prosecuting
Authority did not, however, mean that those investigations lacked
independence as required by Articles 2 or 3 (see Cooper v. the
United Kingdom [GC], §§ 108-115, no. 48843/99, ECHR
2003 XII; McKerr v. the United Kingdom, no.
28883/95, ECHR 2001 III; Paul and Audrey Edwards v. the
United Kingdom, no. 46477/99, ECHR 2002 II). The Army
Prosecuting Authority was staffed by legally qualified officers. It
was wholly independent from the military chain of command in relation
to its prosecuting function. Its independence had been recognised by
the Court in Cooper (cited above).
- The
Government pointed out that an investigation into the fourth
applicant’s brother’s death was commenced by the Special
Investigation Branch on 29 August 2003, five days after the shooting
on 14 August. The Special Investigation Branch recovered fragments of
bullets, empty bullet cases, the vehicle and digital photographs of
the scene. They interviewed the doctors who treated the deceased and
took statements. Nine military witnesses involved in the incident
were interviewed and had statements taken and four further witnesses
were interviewed but had no evidence to offer. The investigation was
discontinued on 17 September 2003 after the Brigade Commander
expressed the view that the shooting fell within the Rules of
Engagement and was lawful. However, the decision to discontinue was
taken by a Special Investigation Branch senior investigating officer,
who was independent of the military chain of command. The
investigation was reopened on 7 June 2004 and completed on 3 December
2004, despite the difficult security conditions in Iraq at that time.
The case was then referred to the Army Prosecuting Authority, which
decided not to bring criminal charges as there was no realistic
prospect of proving that the soldier who shot the fourth applicant’s
brother had not been acting in self defence. The
Attorney-General was notified and he decided not to exercise his
jurisdiction to order a prosecution. In the Government’s
submission, the investigation was effective, in that it identified
the person responsible for the death and established that the laws
governing the use of force had been followed. The investigation was
reasonably prompt, in particular when regard was had to the extreme
difficulty of investigating in the extra-territorial context. If the
halting of the initial investigation gave rise to any lack of
independence, this was cured by the subsequent investigation and the
involvement of the Army Prosecuting Authority and the
Attorney General (see Gül v. Turkey, §§
92-95, no. 22676/93, 14 December 2000; see also McCann and
Others v. the United Kingdom, 27 September 1995, §§
157 and 162-164, Series A no. 324).
- The
Government submitted that there was no evidence, in the fifth
applicant’s case, that the military chain of command interfered
with the Special Investigations Branch investigation so as to
compromise its independence. On the contrary, after receiving the
investigation report the military chain of command referred the case
to the Army Prosecuting Authority who in turn referred it for
independent criminal trial. There was no undue delay in the
investigation, in particular having regard to the difficulties faced
by United Kingdom investigators investigating an incident which took
place in Iraq eight days after the cessation of major combat
operations. The fifth applicant was fully and sufficiently involved
in the investigation. His participation culminated in the United
Kingdom authorities flying him to England so that he could attend the
court-martial and give evidence. In addition to the Special
Investigation Branch investigation and the criminal proceedings
against the four soldiers, the fifth applicant brought civil
proceedings in the United Kingdom domestic courts, claiming damages
for battery and assault, negligence and misfeasance in public office.
In those proceedings he gave an account of his son’s death and
the investigation which followed it. The proceedings were settled
when the Ministry of Defence admitted liability and agreed to pay
GBP 115,000 by way of compensation. Moreover, on 20 February
2009 Major General Cubitt wrote to the fifth applicant and formally
apologised on behalf of the British Army for its role in the death of
his son. In these circumstances, the fifth applicant could no longer
claim to be a victim of a violation of the Convention within the
meaning of Article 34. Further, or in the alternative, it was no
longer justified to continue the examination of the application
(Article 37 § 1(c) of the Convention).
- The
Government further emphasised that the sixth applicant had expressly
confirmed that he did not claim before the Court that the Government
had violated his Convention rights. This reflected the fact that, in
relation to his son’s death, there had been: (1) a full
investigation by the Special Investigation Branch, leading to the
bringing of criminal charges against six soldiers, one of whom was
convicted; (2) civil proceedings brought by the applicant, which were
settled when the Government admitted liability for the mistreatment
and death of the applicant’s son and paid damages of GBP
575,000; (3) a formal public acknowledgement by the Government of the
breach of the applicant’s son’s rights under Articles 2
and 3; (4) the judicial review proceedings, in which the applicant
complained of a breach of his procedural rights under Articles 2 and
3 and in which it was agreed by the parties and ordered by the House
of Lords that the question whether there had been a breach of the
procedural obligation should be remitted to the Divisional Court; (5)
a public inquiry, which was ongoing. In these circumstances, the
applicant could no longer claim to be a victim for the purposes of
Article 34 of the Convention.
(ii) The applicants
- The
applicants emphasised that the Court’s case-law regarding
south-eastern Turkey demonstrated that the procedural duty under
Article 2 was not modified by reference to security problems in a
conflict zone. The same principle had to apply in relation to any
attempt by the Government to rely on either the security situation or
the lack of infrastructure and facilities in Iraq. The United Kingdom
was aware, or should have been aware, prior to the invasion and
during the subsequent occupation, of the difficulties it would
encounter. Its shortcomings in making provision for those
difficulties could not exonerate it from the failure to comply with
the investigative duty.
- They
submitted that the United Kingdom had failed in its procedural duty
as regards the first, second, third, fourth and fifth applicants. The
Royal Military Police was an element of the British Army and was not,
in either institutional or practical terms, independent from the
military chain of command. The Army units exercised control over it
in matters relating to safety and logistical support whilst in
theatre. Its involvement in incidents was wholly dependent on a
request from the military unit in question, as was illustrated by the
fourth applicant’s case, where the Special Investigation Branch
response was stood down upon the instruction of the Commanding
Officer. The Royal Military Police appeared to have been wholly
dependent on the military chain of command for information about
incidents. If it produced a report, this was given to the military
chain of command, which decided whether to forward it to the Army
Prosecuting Authority. The inadequacies within the Royal Military
Police, regarding both lack of resources and independence, were noted
by the Court of Appeal and by the Aitken Report.
- The
applicants pointed out that the Special Investigation Branch
investigation into the fourth applicant’s case had been
discontinued at the request of the military chain of command. The
further investigatory phase, re-opened as a result of litigation in
the domestic courts, was similarly deficient, given the lack of
independence of the Special Investigation Branch and the extreme
delay in interviewing the firer and securing other key evidence. In
the fifth applicant’s case, the investigation was initiated at
the repeated urging of the family, after considerable obstruction and
delay on the part of the British authorities. The investigators were
not independent from the military chain of command and the victim’s
family were not sufficiently involved. The applicants contended that
the Government’s objection that the fifth applicant lacked
victim status should be rejected. The court-martial proceedings and
the compensation he had received in settlement of the civil
proceedings were inadequate to satisfy the procedural requirement
under Article 2. In contrast, the sixth applicant did not claim still
to be a victim of the violation of his procedural rights under
Articles 2 and 3.
(b) The Court’s assessment
(i) General principles
- The
Court is conscious that the deaths in the present case occurred in
Basrah City in South East Iraq in the aftermath of the invasion,
during a period when crime and violence were endemic. Although major
combat operations had ceased on 1 May 2003, the Coalition forces in
South East Iraq, including British soldiers and military police, were
the target of over a thousand violent attacks in the subsequent 13
months. In tandem with the security problems, there were serious
breakdowns in the civilian infrastructure, including the law
enforcement and criminal justice systems (see paragraphs 22-23 above;
see also the findings of the Court of Appeal at paragraph 80 above).
- While
remaining fully aware of this context, the Court’s approach
must be guided by the knowledge that the object and purpose of the
Convention as an instrument for the protection of individual human
beings requires that its provisions be interpreted and applied so as
to make its safeguards practical and effective. Article 2, which
protects the right to life and sets out the circumstances when
deprivation of life may be justified, ranks as one of the most
fundamental provisions in the Convention. No derogation from it
is permitted under Article 15, “except in respect of
deaths resulting from lawful acts of war”. Article 2 covers
both intentional killing and also the situations in which it is
permitted to use force which may result, as an unintended outcome, in
the deprivation of life. Any use of force must be no more than
“absolutely necessary” for the achievement of one or more
of the purposes set out in sub-paragraphs (a) to (c) (see McCann
and Others v. the United Kingdom, 27 September 1995, §§ 146 148,
Series A no. 324).
- The
general legal prohibition of arbitrary killing by agents of the State
would be ineffective in practice if there existed no procedure for
reviewing the lawfulness of the use of lethal force by State
authorities. The obligation to protect the right to life under this
provision, read in conjunction with the State’s general duty
under Article 1 of the Convention to “secure to everyone within
their jurisdiction the rights and freedoms defined in [the]
Convention”, requires by implication that there should be some
form of effective official investigation when individuals have been
killed as a result of the use of force by, inter alios, agents
of the State (see McCann, cited above, § 161). The
essential purpose of such an investigation is to secure the effective
implementation of the domestic laws safeguarding the right to life
and, in those cases involving State agents or bodies, to ensure their
accountability for deaths occurring under their responsibility (see
Nachova and Others v. Bulgaria [GC], nos. 43577/98 and
43579/98, § 110, ECHR 2005-VII). However, the investigation
should also be broad enough to permit the investigating authorities
to take into consideration not only the actions of the State agents
who directly used lethal force but also all the surrounding
circumstances, including such matters as the planning and control of
the operations in question, where this is necessary in order to
determine whether the State complied with its obligation under
Article 2 to protect life (see, by implication, McCann and Others,
cited above, §§ 150 and 162; Hugh Jordan v. the
United Kingdom, no. 24746/94, § 128, ECHR2001 III
(extracts); McKerr, cited above, §§ 143 and 151;
Shanaghan v. the United Kingdom, no. 37715/97, §§
100-125, 4 May 2001; Finucane v. the United Kingdom,
no. 29178/95, §§ 77-78, ECHR 2003 VIII; Nachova,
cited above, §§ 114-115; and also, mutatis mutandis,
Tzekov v. Bulgaria, no. 45500/99, § 71,
23 February 2006).
- The
Court has held that the procedural obligation under Article 2
continues to apply in difficult security conditions, including in a
context of armed conflict (see, amongst other examples, Güleç
v. Turkey, 27 July 1998, § 81, Reports of Judgments and
Decisions 1998 IV; Ergi v. Turkey, 28 July 1998, §§
79 and 82, Reports 1998 IV; Ahmet Özkan and
Others v. Turkey, no. 21689/93, §§ 85-90 and 309-320
and 326-330, 6 April 2004; Isayeva v. Russia, no.
57950/00, §§ 180 and 210, 24 February 2005; Kanlibaş
v. Turkey, no. 32444/96, §§ 39-51, 8 December
2005). It is clear that where the death to be investigated under
Article 2 occurs in circumstances of generalised violence, armed
conflict or insurgency, obstacles may be placed in the way of
investigators and, as the United Nations Special Rapporteur has also
observed (see paragraph 93 above), concrete constraints may compel
the use of less effective measures of investigation or may cause an
investigation to be delayed (see, for example, Bazorkina v.
Russia, no. 69481/01, § 121, 27 July 2006).
Nonetheless, the obligation under Article 2 to safeguard life entails
that, even in difficult security conditions, all reasonable steps
must be taken to ensure that an effective, independent investigation
is conducted into alleged breaches of the right to life (see, amongst
many other examples, Kaya v. Turkey, 19 February 1998,
§§ 86 92, Reports of Judgments and Decisions
1998 I; Ergi, cited above, §§ 82-85;
Tanrıkulu v. Turkey [GC], no. 23763/94, §§
101-110, ECHR 1999 IV; Khashiyev and Akayeva v. Russia,
nos. 57942/00 and 57945/00, §§ 156-166, 24 February
2005; Isayeva, cited above, §§ 215 224;
Musayev and Others v. Russia, nos. 57941/00, 58699/00
and 60403/00, §§ 158-165, 26 July 2007).
- What
form of investigation will achieve the purposes of Article 2 may vary
depending on the circumstances. However, whatever mode is employed,
the authorities must act of their own motion once the matter has come
to their attention. They cannot leave it to the initiative of the
next of kin either to lodge a formal complaint or to take
responsibility for the conduct of any investigative procedures (see
Ahmet Özkan and Others, cited above, § 310; Isayeva,
cited above, § 210). Civil proceedings, which are undertaken on
the initiative of the next-of-kin, not the authorities, and which do
not involve the identification or punishment of any alleged
perpetrator, cannot be taken into account in the assessment of the
State’s compliance with its procedural obligations under
Article 2 of the Convention (see, for example, Hugh Jordan,
cited above, § 141). Moreover, the procedural obligation of
the State under Article 2 cannot be satisfied merely by awarding
damages (see McKerr, cited above, § 121;
Bazorkina, cited above, § 117).
- As
stated above, the investigation must be effective in the sense that
it is capable of leading to a determination of whether the force used
was or was not justified in the circumstances and to the
identification and punishment of those responsible. This is not an
obligation of result, but of means. The authorities must take the
reasonable steps available to them to secure the evidence concerning
the incident, including inter alia eye-witness testimony,
forensic evidence and, where appropriate, an autopsy which provides a
complete and accurate record of injury and an objective analysis of
clinical findings, including the cause of death. Any deficiency in
the investigation which undermines its ability to establish the cause
of death or the person or persons responsible will risk falling foul
of this standard (see Ahmet Özkan and Others, cited
above, § 312; Isayeva, cited above, § 212 and the
cases cited therein).
-
For an investigation into alleged unlawful killing by State agents to
be effective, it is necessary for the persons responsible for and
carrying out the investigation to be independent from those
implicated in the events. This means not only a lack of hierarchical
or institutional connection but also a practical independence (see,
for example, Shanaghan, cited above, § 104). A
requirement of promptness and reasonable expedition is implicit in
this context. While there may be obstacles or difficulties which
prevent progress in an investigation in a particular situation, a
prompt response by the authorities in investigating a use of lethal
force may generally be regarded as essential in maintaining public
confidence in their adherence to the rule of law and in preventing
any appearance of collusion in or tolerance of unlawful acts. For the
same reasons, there must be a sufficient element of public scrutiny
of the investigation or its results to secure accountability in
practice as well as in theory. The degree of public scrutiny required
may well vary from case to case. In all cases, however, the victim’s
next-of-kin must be involved in the procedure to the extent necessary
to safeguard his or her legitimate interests (see Ahmet Özkan
and Others, cited above, §§ 311 314; Isayeva,
cited above, §§ 211-214 and the cases cited therein).
(ii) Application of these principles to
the facts of the case
- The
Court takes as its starting point the practical problems caused to
the investigatory authorities by the fact that the United Kingdom was
an Occupying Power in a foreign and hostile region in the immediate
aftermath of invasion and war. These practical problems included the
breakdown in the civil infrastructure, leading inter alia to
shortages of local pathologists and facilities for autopsies; the
scope for linguistic and cultural misunderstandings between the
occupiers and the local population; and the danger inherent in any
activity in Iraq at that time. As stated above, the Court considers
that in circumstances such as these the procedural duty under Article
2 must be applied realistically, to take account of specific problems
faced by investigators.
- Nonetheless,
the fact that the United Kingdom was in occupation also entailed
that, if any investigation into acts allegedly committed by British
soldiers was to be effective, it was particularly important that the
investigating authority was, and was seen to be, operationally
independent of the military chain of command.
- It
was not in issue in the first, second and fourth applicants’
cases that their relatives were shot by British soldiers, whose
identities were known. The question for investigation was whether in
each case the soldier fired in conformity with the Rules of
Engagement. In respect of the third applicant, Article 2 required an
investigation to determine the circumstances of the shooting,
including whether appropriate steps were taken to safeguard civilians
in the vicinity. As regards the fifth applicant’s son, although
the Court has not been provided with the documents relating to the
court martial, it appears to have been accepted that he died of
drowning. It needed to be determined whether British soldiers
had, as alleged, beaten the boy and forced him into the water. In
each case eye-witness testimony was crucial. It was therefore
essential that, as quickly after the event as possible, the military
witnesses, and in particular the alleged perpetrators, should have
been questioned by an expert and fully independent investigator.
Similarly, every effort should have been taken to identify Iraqi eye
witnesses and to persuade them that they would not place themselves
at risk by coming forward and giving information and that their
evidence would be treated seriously and acted upon without delay.
- It
is clear that the investigations into the shooting of the first,
second and third applicants’ relatives fell short of the
requirements of Article 2, since the investigation process remained
entirely within the military chain of command and was limited to
taking statements from the soldiers involved. Moreover, the
Government accept this conclusion.
- As
regards the other applicants, although there was an investigation by
the Special Investigation Branch into the death of the fourth
applicant’s brother and the fifth applicant’s son, the
Court does not consider that this was sufficient to comply with the
requirements of Article 2. It is true that the Royal Military Police,
including its Special Investigation Branch, had a separate chain of
command from the soldiers on combat duty whom it was required to
investigate. However, as the domestic courts observed (see paragraphs
77 and 82 above), the Special Investigation Branch was not, during
the relevant period, operationally independent from the military
chain of command. It was generally for the Commanding Officer of the
unit involved in the incident to decide whether the Special
Investigation Branch should be called in. If the Special
Investigation Branch decided on its own initiative to commence an
investigation, this investigation could be closed at the request of
the military chain of command, as demonstrated in the fourth
applicant’s case. On conclusion of a Special Investigation
Branch investigation, the report was sent to the Commanding Officer,
who was responsible for deciding whether or not the case should be
referred to the prosecuting authority. The Court considers, in
agreement with Brooke LJ (see paragraph 82 above), that the fact that
the Special Investigation Branch was not “free to decide for
itself when to start and cease an investigation” and did not
report “in the first instance to the [Army Prosecuting
Authority]” rather than to the military chain of command, meant
that it could not be seen as sufficiently independent from the
soldiers implicated in the events to satisfy the requirements of
Article 2.
- It
follows that the initial investigation into the shooting of the
fourth applicant’s brother was flawed by the lack of
independence of the Special Investigation Branch officers. During the
initial phase of the investigation, material was collected from the
scene of the shooting and statements were taken from the soldiers
present. However, Lance Corporal S, the soldier who shot the
applicant’s brother, was not questioned by Special
Investigation Branch investigators during this initial phase. It
appears that the Special Investigation Branch interviewed four Iraqi
witnesses, who may have included the neighbours the applicant
believes to have witnessed the shooting, but did not take statements
from them. In any event, as a result of the lack of independence, the
investigation was terminated while still incomplete. It was
subsequently reopened, some nine months later, and it would appear
that forensic tests were carried out at that stage on the material
collected from the scene, including the bullet fragments and vehicle.
The Special Investigation Branch report was sent to the Commanding
Officer, who decided to refer the case to the Army Prosecuting
Authority. The prosecutors took depositions from the soldiers who
witnessed the incident and decided, having taken further independent
legal advice, that there was no evidence that Lance Corporal S had
not acted in legitimate self-defence. As previously stated, eye
witness testimony was central in this case, since the cause of the
death was not in dispute. The Court considers that the long period of
time that was allowed to elapse before Lance Corporal S was
questioned about the incident, combined with the delay in having a
fully independent investigator interview the other military
witnesses, entailed a high risk that the evidence was contaminated
and unreliable by the time the Army Prosecuting Authority came to
consider it. Moreover, it does not appear that any fully independent
investigator took evidence from the Iraqi neighbours who the
applicant claims witnessed the shooting.
- While
there is no evidence that the military chain of command attempted to
intervene in the investigation into the fifth applicant’s son’s
death, the Court considers that the Special Investigation Branch
investigators lacked independence for the reasons set out above. In
addition, no explanation has been provided by the Government in
respect of the long delay between the death and the court-martial. It
appears that the delay seriously undermined the effectiveness of the
investigation, not least because some of the soldiers accused of
involvement in the incident were by then untraceable (see, in this
respect, the comments in the Aitken Report, paragraph 61
above). Moreover, the Court considers that the narrow focus of
the criminal proceedings against the accused soldiers was inadequate
to satisfy the requirements of Article 2 in the particular
circumstances of this case. There appears to be at least prima
facie evidence that the applicant’s son, a minor, was taken
into the custody of British soldiers who were assisting the Iraqi
police to take measures to combat looting and that, as a result of
his mistreatment by the soldiers, he drowned. In these circumstances,
the Court considers that Article 2 required an independent
examination, accessible to the victim’s family and to the
public, of the broader issues of State responsibility for the death,
including the instructions, training and supervision given to
soldiers undertaking tasks such as this in the aftermath of the
invasion.
- In
the light of the foregoing, the Court does not consider that the
procedural duty under Article 2 has been satisfied in respect of the
fifth applicant. Although he has received a substantial sum in
settlement of his civil claim, together with an admission of
liability on behalf of the Army, there has never been a full and
independent investigation into the circumstances of his son’s
death (see paragraph 165 above). It follows that the fifth applicant
can still claim to be a victim within the meaning of Article 34 and
that the Government’s preliminary objection regarding his lack
of victim status must be rejected.
- In
contrast, the Court notes that a full, public inquiry is nearing
completion into the circumstances of the sixth applicant’s
son’s death. In the light of this inquiry, the Court notes that
the sixth applicant accepts that he is no longer a victim of any
breach of the procedural obligation under Article 2. The Court
therefore accepts the Government’s objection in respect of the
sixth applicant.
- In
conclusion, the Court finds a violation of the procedural duty under
Article 2 of the Convention in respect of the first, second, third,
fourth and fifth applicants.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
first, second, third, fourth and fifth applicants asked the Court to
order the Government to carry out an Article 2-compliant
investigation into their relatives’ deaths. They also claimed
GBP 15,000 each in compensation for the distress they had suffered
because of the United Kingdom’s failure to conduct a
Convention-compliant investigation into the deaths.
- The
Government pointed out that the Court had repeatedly and expressly
refused to direct the State to carry out a fresh investigation in
cases in which it had found a breach of the procedural duty under
Article 2 (see for example Varnava and Others v. Turkey [GC],
nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90,
16071/90, 16072/90 and 16073/90, § 222, ECHR 2009 ...; Ülkü
Ekinci v. Turkey, no. 27602/95, § 179, 16 July 2002;
Finucane, cited above, § 89). They further submitted that
a finding of a violation would be sufficient just satisfaction in the
circumstances. In the alternative, if the Court decided to make an
award, the Government noted that the sum claimed by the applicants
was higher than generally awarded. They did not, however, propose a
sum, leaving it to the Court to decide on an equitable basis.
- As
regards the applicants’ request concerning the provision of an
effective investigation, the Court reiterates the general principle
that the respondent State remains free to choose the means by which
it will discharge its legal obligation under Article 46 of the
Convention, provided that such means are compatible with the
conclusions set out in the Court’s judgment. Consequently it
considers that in these applications it falls to the Committee of
Ministers acting under Article 46 of the Convention to address the
issues as to what may be required in practical terms by way of
compliance (see Varnava, cited above, § 222 and the cases
cited therein).
- As
regards the claim for monetary compensation, the Court recalls that
it is not its role under Article 41 to function akin to a domestic
tort mechanism court in apportioning fault and compensatory damages
between civil parties. Its guiding principle is equity, which above
all involves flexibility and an objective consideration of what is
just, fair and reasonable in all the circumstances of the case,
including not only the position of the applicant but the overall
context in which the breach occurred. Its non pecuniary
awards serve to give recognition to the fact that moral damage
occurred as a result of a breach of a fundamental human right and
reflect in the broadest of terms the severity of the damage (see
Varnava, cited above, § 224 and the cases cited therein).
In the light of all the circumstances of the present case, the Court
considers that, to compensate each of the first five applicants for
the distress caused by the lack of a fully independent investigation
into the deaths of their relatives, it would be just and equitable to
award the full amount claimed, which, when converted into euros,
comes to approximately EUR 17,000 each.
B. Costs and expenses
- The
applicants, emphasising the complexity and importance of the case,
claimed for over 580 hours’ legal work by their solicitors and
four counsel in respect of the proceedings before the Court, at a
total cost of GBP 119,928.
- The
Government acknowledged that the issues were complex, but nonetheless
submitted that the claim was excessive, given that the applicants’
legal advisers were familiar with all aspects of the claim since they
had acted for the applicants in the domestic legal proceedings, which
had been publicly funded. Furthermore, the hourly rates claimed by
the applicants’ counsel, ranging between GBP 500 and GBP 235,
and the hourly rates claimed by the applicants’ solicitors (GBP
180 and GBP 130) were unreasonably high. Nor had it been necessary to
engage two Queen’s Counsel and two junior counsel.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 50,000 for the
proceedings before the Court.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Rejects the Government’s preliminary
objections regarding attribution and non-exhaustion of domestic
remedies;
- Joins to the merits the questions whether the
applicants fell within the jurisdiction of the respondent State and
whether the fifth and sixth applicants retained victim status;
- Declares the application admissible;
- Holds that the applicants’ deceased
relatives fell within the jurisdiction of the respondent State and
dismisses the Government’s preliminary objection as
regards jurisdiction;
- Holds that the sixth applicant can no longer
claim to be a victim of a violation of the procedural obligation
under Article 2 of the Convention;
- Holds that there has been a breach of the
procedural obligation under Article 2 of the Convention to carry out
an adequate and effective investigation into the deaths of the
relatives of the first, second, third, fourth and fifth applicants
and dismisses the Government’s preliminary objection as
regards the victim status of the fifth applicant;
- Holds
(a) that
the respondent State is to pay each of the first five applicants,
within three months, EUR 17,000 (seventeen thousand euros), plus any
tax that may be chargeable on this sum, in respect of non-pecuniary
damage, to be converted into pounds sterling at the rate applicable
at the date of settlement;
(b) that
the respondent State is to pay jointly to the first five applicants,
within three months, EUR 50,000 (fifty thousand euros), plus any tax
that may be chargeable to the applicants on this sum, in respect of
costs and expenses, to be converted into pounds sterling at the rate
applicable at the date of settlement;
(c) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English and French, and notified at a public hearing on 7
July 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of
Court.
Michael O’Boyle Jean-Paul Costa
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the concurring opinions of Judge
Rozakis and Judge Bonello are
annexed to this judgment.
J.-P.C.
M.O.B.
CONCURRING OPINION OF JUDGE ROZAKIS
When
citing the general principles relevant to a State party’s
jurisdiction under Article 1 of the Convention (see paragraphs 130 et
seq. of the Grand Chamber’s judgment), the Court reiterates its
established case-law that apart from the territorial aspect
determining the jurisdictional competence of a State party to the
Convention, there are “exceptional circumstances capable of
giving rise to the exercise of jurisdiction by a Contracting State
outside its own territorial boundaries” (see paragraph 132). It
then proceeds to discuss such exceptional circumstances. In
paragraphs 133 to 137, under the title “State agent authority
and control”, it refers to situations where State agents
operating extraterritorially, and exercising control and authority
over individuals, create a jurisdictional link with their State and
its obligations under the Convention, making that State responsible
for the acts or omissions of its agents, in cases where they affect
the rights or freedoms of individuals protected by the Convention.
Characteristic examples of such exceptional circumstances of
extraterritorial jurisdiction are mentioned in the judgment (see
paragraphs 134 to 136), and concern the acts of diplomatic and
consular agents, the exercise of authority and control over foreign
territory by individuals which is allowed by a third State through
its consent, invitation or acquiescence, and the use of force by
State agents operating outside its territory.
So
far so good, but then, under the title “Effective control over
an area”, the Court refers to “[a]nother exception to the
principle of jurisdiction ...”, when “as a consequence of
lawful or unlawful military action, a Contracting State exercises
effective control of an area outside [its] national territory”.
I regret to say that I cannot agree that this ground of
jurisdiction constitutes a separate (“another”) ground of
jurisdiction, which differs from the “State authority and
control” jurisdictional link. It is part and parcel, to my
mind, of that latter jurisdictional link, and concerns a particular
aspect of it. The differing elements, which distinguish that
particular aspect from the jurisdictional categories mentioned by the
Court, can be presented cumulatively or in isolation as the
following: (a) the usually large-scale use of force; (b) the
occupation of a territory for a prolonged period of time; and/or (c)
in the case of occupation, the exercise of power by a subordinate
local administration, whose acts do not exonerate the occupying State
from its responsibility under the Convention.
As a
consequence, I consider that the right approach to the matter would
have been for the Court to have included that aspect of jurisdiction
in the exercise of “State authority and control” test,
and to have simply determined that “effective” control is
a condition for the exercise of jurisdiction which brings a State
within the boundaries of the Convention, as delimited by its Article
1.
CONCURRING OPINION OF JUDGE BONELLO
- These
six cases deal primarily with the issue of whether Iraqi civilians
who allegedly lost their lives at the hands of United Kingdom
soldiers, in non-combat situations in the United Kingdom-occupied
Basrah region of Iraq, were “within the jurisdiction” of
the United Kingdom when those killings took place.
- When,
in March 2003, the United Kingdom, together with the other Coalition
forces invaded Iraq, the Coalition Provisional Authority (CPA)
conferred upon members of that Authority the fullest jurisdictional
powers over Iraq: “The CPA is vested with all executive,
legislative and judicial authority necessary to achieve its
objectives”. This included the “power to issue
legislation”: “The CPA shall exercise powers of
government temporarily”.
- I
fully agreed with the findings of the Court, but I would have
employed a different test (a “functional jurisdiction”
test) to establish whether or not the victims fell within the
jurisdiction of the United Kingdom. Though the present judgment has
placed the doctrines of extra-territorial jurisdiction on a sounder
footing than ever before, I still do not consider wholly satisfactory
the re-elaboration of the traditional tests to which the Court has
resorted.
Extra-territorial
jurisdiction or Functional jurisdiction?
- The
Court’s case-law on Article 1 of the Convention (the
jurisdiction of the Contracting Parties) has, so far, been bedevilled
by an inability or an unwillingness to establish a coherent and
axiomatic regime, grounded in essential basics and even-handedly
applicable across the widest spectrum of jurisdictional
controversies.
- Up
until now, the Court has, in matters concerning the extra-territorial
jurisdiction of Contracting Parties, spawned a number of “leading”
judgments based on a need-to-decide basis, patchwork case-law at
best. Inevitably, the doctrines established seem to go too far to
some, and not far enough to others. As the Court has, in these cases,
always tailored its tenets to sets of specific facts, it is hardly
surprising that those tenets then seem to limp when applied to sets
of different facts. Principles settled in one judgment may appear
more or less justifiable in themselves, but they then betray an
awkward fit when measured against principles established in another.
Issa flies in the face of Banković and the
cohabitation of Behrami with Berić is, overall,
quite problematic.
- The
late Lord Rodger in the House of Lords had my full sympathy when he
lamented that, in its application of extra-territorial jurisdiction
“the judgments and decisions of the European Court do not speak
with one voice”. The differences, he rightly noted, are not
merely ones of emphasis. Some “appear much more serious”.
- The
truth seems to be that Article 1 case-law has, before the present
judgment, enshrined everything and the opposite of everything. In
consequence, the judicial decision-making process in Strasbourg has,
so far, squandered more energy in attempting to reconcile the barely
reconcilable than in trying to erect intellectual constructs of more
universal application. A considerable number of different approaches
to extra-territorial jurisdiction have so far been experimented with
by the Court on a case-by-case basis, some not completely exempt from
internal contradiction.
- My
guileless plea is to return to the drawing board. To stop fashioning
doctrines which somehow seem to accommodate the facts, but rather, to
appraise the facts against the immutable principles which underlie
the fundamental functions of the Convention.
- The
founding members of the Convention, and each subsequent Contracting
Party, strove to achieve one aim, at once infinitesimal and infinite:
the supremacy of the rule of human rights law. In Article 1 they
undertook to secure to everyone within their jurisdiction the
rights and freedoms enshrined in the Convention. This was, and
remains, the cornerstone of the Convention. That was, and remains,
the agenda heralded in its preamble: “the universal and
effective recognition and observance” of fundamental human
rights. “Universal” hardly suggests an observance
parcelled off by territory on the checkerboard of geography.
- States
ensure the observance of human rights in five primordial ways:
firstly, by not violating (through their agents) human rights;
secondly, by having in place systems which prevent breaches of human
rights; thirdly, by investigating complaints of human rights abuses;
fourthly, by scourging those of their agents who infringe human
rights; and, finally, by compensating the victims of breaches of
human rights. These constitute the basic minimum functions assumed
by every State by virtue of its having contracted into the
Convention.
- A
“functional” test would see a State effectively
exercising “jurisdiction” whenever it falls within its
power to perform, or not to perform, any of these five functions.
Very simply put, a State has jurisdiction for the purposes
of Article 1 whenever the observance or the breach of any of these
functions is within its authority and control.
- Jurisdiction
means no less and no more than “authority over” and
“control of”. In relation to Convention obligations,
jurisdiction is neither territorial nor extra-territorial: it ought
to be functional - in the sense that when it is within a State’s
authority and control whether a breach of human rights is, or is not,
committed, whether its perpetrators are, or are not, identified and
punished, whether the victims of violations are, or are not,
compensated, it would be an imposture to claim that, ah yes, that
State had authority and control, but, ah no, it had no jurisdiction.
- The
duties assumed through ratifying the Convention go hand in hand with
the duty to perform and observe them. Jurisdiction arises from the
mere fact of having assumed those obligations and from having the
capability to fulfil them (or not to fulfil them).
- If
the perpetrators of an alleged human rights violation are within the
authority and control of one of the Contracting Parties, it is to me
totally consequential that their actions by virtue of that State’s
authority, engage the jurisdiction of the Contracting Party. I resist
any helpful schizophrenia by which a nervous sniper is within the
jurisdiction, his act of shooting is within the jurisdiction, but
then the victims of that nervous sniper happily choke in blood
outside it. Any hiatus between what logical superglue has inexorably
bonded appears defiantly meretricious, one of those infelicitous
legal fictions a court of human rights can well do without.
- Adhering
to doctrines other than this may lead in practice to some riotous
absurdities in their effects. If two civilian Iraqis are together in
a street in Basrah, and a United Kingdom soldier kills the first
before arrest and the second after arrest, the first dies desolate,
deprived of the comforts of United Kingdom jurisdiction, the second
delighted that his life was evicted from his body within the
jurisdiction of the United Kingdom. Same United Kingdom soldier, same
gun, same ammunition, same patch of street same inept
distinctions. I find these pseudo-differentials spurious and designed
to promote a culture of law that perverts, rather than fosters, the
cause of human rights justice.
- In
my view, the one honest test, in all circumstances (including
extra- territoriality), is the following: did it depend on the agents
of the State whether the alleged violation would be committed or
would not be committed? Was it within the power of the State to
punish the perpetrators and to compensate the victims? If the answer
is yes, self-evidently the facts fall squarely within the
jurisdiction of the State. All the rest seems to me clumsy,
self-serving alibi hunting, unworthy of any State that has
grandiosely undertaken to secure the “universal”
observance of human rights whenever and wherever it is within its
power to secure them, and, may I add, of courts whose only raison
d’etre should be to ensure that those obligations are not
avoided or evaded. The Court has, in the present judgment, thankfully
placed a sanitary cordon between itself and some of these approaches.
- The
failure to espouse an obvious functional test, based exclusively on
the programmatic agenda of the Convention, has, in the past, led to
the adoption of a handful of sub-tests, some of which may have served
defilers of Convention values far better then they have the
Convention itself. Some of these tests have empowered the abusers and
short-changed their victims. For me the primary questions to be
answered boil down to these: when a State ratifies the Convention,
does it undertake to promote human rights wherever it can, or does it
undertake to promote human rights inside its own confines and to
breach them everywhere else? Did the Contracting Party ratify the
Convention with the deliberate intent of discriminating between the
sanctity of human rights within its own territory and their paltry
insignificance everywhere else?
- I
am unwilling to endorse à la carte respect for human
rights. I think poorly of an esteem for human rights that turns
casual and approximate depending on geographical coordinates. Any
State that worships fundamental rights on its own territory but then
feels free to make a mockery of them anywhere else does not, as far
as I am concerned, belong to that comity of nations for which the
supremacy of human rights is both mission and clarion call. In
substance the United Kingdom is arguing, sadly, I believe, that it
ratified the Convention with the deliberate intent of regulating the
conduct of its armed forces according to latitude: gentlemen at home,
hoodlums elsewhere.
- The
functional test I propose would also cater for the more rarefied
reaches of human rights protection, like respect for the positive
obligations imposed on Contracting Parties: was it within the State’s
authority and control to see that those positive obligations would be
respected? If it was, then the functional jurisdiction of the State
would come into play, with all its natural consequences. If, in the
circumstances, the State is not in such a position of authority and
control as to be able to ensure extraterritorially the fulfilment of
any or all of its positive obligations, that lack of functional
authority and control excludes jurisdiction, limitedly to those
specific rights the State is not in a position to enforce.
- This
would be my universal vision of what this Court is all about –
a bright line approach rather than case by case, more or less
inspired, more or less insipid, improvisations, cluttering the
case-law with doctrines which are, at best, barely compatible and at
worst blatantly contradictory – and none measured against the
essential yardstick of the supremacy and universality of human rights
anytime, anywhere.
Exceptions?
- I
consider the doctrine of functional jurisdiction to be so linear and
compelling that I would be unwilling to acquiesce to any exceptions,
even more so in the realm of the near-absolute rights to life and to
freedom from torture and degrading or inhuman treatment or
punishment. Without ever reneging on the principle of the inherent
jurisdiction of the occupying power that usually flows from military
conquest, at most the Court could consider very limited exceptions to
the way in which Article 2 and Article 3 are applied in extreme cases
of clear and present threats to national security that would
otherwise significantly endanger the war effort. I would not,
personally, subscribe to any exceptions at all.
Conclusion
- Applying
the functional test to the specifics of these cases, I arrive at the
manifest and inescapable conclusion that all the facts and all the
victims of the alleged killings said to have been committed by United
Kingdom servicemen fall squarely within the jurisdiction of the
United Kingdom, which had, in Basrah and its surroundings, an
obligation to ensure the observance of Articles 2 and 3 of the
Convention. It is uncontested that the servicemen who allegedly
committed the acts that led to the deaths of the victims were under
United Kingdom authority and control; that it was within the United
Kingdom’s authority and control whether to investigate those
deaths or not; that it was within the United Kingdom’s
authority and control whether to punish any human rights violations,
if established; and that it was within the United Kingdom’s
authority and control whether to compensate the victims of those
alleged violations or their heirs. Concluding that the United Kingdom
had all this within its full authority and control, but still
had no jurisdiction, would for me amount to a finding as
consequential as a good fairy tale and as persuasive as a bad one.
- The
test adopted by the Court in this case has led to a unanimous finding
of jurisdiction. Though I believe the functional test I endorse would
better suit any dispute relating to extra-territorial jurisdiction, I
would still have found that, whatever the test adopted, all the six
killings before the Court engaged United Kingdom jurisdiction. I
attach to this opinion a few random observations to buttress my
conclusions.
Presumption
of jurisdiction
- I
would propose a different test from that espoused by the domestic
courts to establish or dismiss extra-territorial jurisdiction in
terms of Article 1, in cases concerning military occupation,
when a State becomes the recognised “occupying power”
according to the Geneva and The Hague instruments. Once a State is
acknowledged by international law to be “an occupying power”,
a rebuttable presumption ought to arise that the occupying power has
“authority and control” over the occupied territory, over
what goes on there and over those who happen to be in it – with
all the consequences that flow from a legal presumption. It will then
be incumbent on the occupying power to prove that such was the state
of anarchy and impotence prevailing, that it suffered a deficit of
effective authority and control. It will no longer be for the victim
of wartime atrocities to prove that the occupying power actually
exercised authority and control. It will be for the occupying power
to rebut it.
- I
was puzzled to read in the domestic proceedings that “the
applicants had failed to make a case” for United Kingdom
authority and control in the Basrah region. I believe that the mere
fact of a formally acknowledged military occupation ought to shift
any burden of proof from the applicants to the respondent Government.
- And
it will, in my view, be quite arduous for an officially recognised
“occupying power” to disprove authority and control over
impugned acts, their victims and their perpetrators. The occupying
power could only do that successfully in the case of infamies
committed by forces other than its own, during a state of total
breakdown of law and order. I find it bizarre, not to say offensive,
that an occupying power can plead that it had no authority and
control over acts committed by its own armed forces well under its
own chain of command, claiming with one voice its authority and
control over the perpetrators of those atrocities, but with the
other, disowning any authority and control over atrocities committed
by them and over their victims.
- It
is my view that jurisdiction is established when authority and
control over others are established. For me, in the present cases, it
is well beyond surreal to claim that a military colossus which
waltzed into Iraq when it chose, settled there for as long as it
cared to and only left when it no longer suited its interests to
remain, can persuasively claim not to have exercised authority and
control over an area specifically assigned to it in the geography of
the war games played by the victorious. I find it uncaring to the
intellect for a State to disclaim accountability for what its
officers, wearing its uniforms, wielding its weapons, sallying forth
from its encampments and returning there, are alleged to have done.
The six victims are said to have lost their lives as a result of the
unlawful actions of United Kingdom soldiers in non-combat situations
- but no one answers for their death. I guess we are expected to
blame it on the evil eye.
- Jurisdiction
flows not only from the exercise of democratic governance, not only
from ruthless tyranny, not only from colonial usurpation. It also
hangs from the mouth of a firearm. In non-combat situations, everyone
in the line of fire of a gun is within the authority and control of
whoever is wielding it.
Futility
of the case-law
- The
undeniable fact is that this Court has never, before today, had to
deal with any case in which the factual profiles were in any way
similar to those of the present applications. This Court has, so far,
had several occasions to determine complaints which raised issues of
extra-territorial jurisdiction, but all of a markedly different
nature. Endeavouring to export doctrines of jurisdiction hammered out
in a case of a solitary air-strike over a radio station abroad
(Banković) to allegations of atrocities committed by the
forces of an occupying power, which has assumed and kept armed
control of a foreign territory for well over three years, is anything
but consequent. I find the jurisdictional guidelines established by
the Court to regulate the capture by France of a Cambodian
drug-running ship on the high seas, for the specific purpose of
intercepting her cargo and bringing the crew to justice (Medvedyev),
to be quite distracting and time-wasting when the issue relates to a
large territory outside the United Kingdom, conquered and held for
over three years by the force of arms of a mighty foreign military
set-up, recognised officially by international law as an “occupying
power”, and which had established itself indefinitely there.
- In
my view, this relentless search for eminently tangential case-law is
as fruitful and fulfilling as trying to solve one crossword puzzle
with the clues of another. The Court could, in my view, have started
the exercise by accepting that this was judicial terra incognita,
and could have worked out an organic doctrine of extra-territorial
jurisdiction, untrammelled by the irrelevant and indifferent to the
obfuscating.
Indivisibility
of Human Rights
- The
foregoing analysis is not at all invalidated by what is termed the
“indivisibility of human rights” argument which runs
thus: as human rights are indivisible, once a State is considered to
have extra-territorial “jurisdiction”, then that State is
held to be bound to enforce all the human rights enshrined in
the Convention. Conversely, if that State is not in a position to
enforce the whole range of Convention human rights, it does not have
jurisdiction.
- Hardly
so. Extraterritorially, a Contracting State is obliged to ensure the
observance of all those human rights which it is in a position to
ensure. It is quite possible to envisage situations in which a
Contracting State, in its role as an occupying power, has well within
its authority the power not to commit torture or extra-judicial
killings, to punish those who commit them and to compensate the
victims – but at the same time that Contracting State does not
have the extent of authority and control required to ensure to all
persons the right to education or the right to free and fair
elections: those fundamental rights it can enforce would fall
squarely within its jurisdiction, those it cannot, on the wrong side
of the bright line. If the “indivisibility of human rights”
is to have any meaning at all, I would prefer that meaning to run
hand in hand with that of the “universality of human rights”.
- I
believe that it ill suits the respondent Government to argue, as they
have, that their inability to secure respect for all fundamental
rights in Basrah, gave them the right not to respect any at all.
A
vacuum of jurisdiction?
- In
spite of the fact that, as a leading partner in the Coalition
Provisional Authority, the United Kingdom Government were “vested
with all executive, legislative and judicial authority”
over that part of vanquished Iraq assigned to them, the United
Kingdom went a long and eloquent way in its attempt to establish that
it did not exercise jurisdiction over the area assigned to it. It
just stopped short of sharing with the Court who did. Who was the
mysterious, faceless rival which, instead of it, exercised executive,
legislative and judicial authority for three years and more over the
area delegated to the United Kingdom? There unquestionably existed a
highly volatile situation on the ground, pockets of violent
insurgency and a pervasive, sullen resistance to the military
presence.
- However,
in the Basrah region, some authority was still giving orders, laying
down the law (juris dicere - defining what the binding norm of
law is), running the correctional facilities, delivering the mail,
establishing and maintaining communications, providing health
services, supplying food and water, restraining military contraband
and controlling criminality and terrorism as best it could. This
authority, full and complete over the United Kingdom military,
harassed and maimed over the rest, was the United Kingdom’s.
- The
alternative would be to claim that Basrah and the region under the
United Kingdom’s executive, legislative and judicial
responsibility hovered in an implacable legal void, sucked inside
that legendary black hole, whose utter repulsion of any authority
lasted well over three years. A proposition unlikely to find many
takers on the legal market.
Human
rights imperialism
- I
confess to be quite unimpressed by the pleadings of the United
Kingdom Government to the effect that exporting the European
Convention on Human Rights to Iraq would have amounted to “human
rights imperialism”. It ill behoves a State that imposed its
military imperialism over another sovereign State without the
frailest imprimatur from the international community, to resent the
charge of having exported human rights imperialism to the vanquished
enemy. It is like wearing with conceit your badge of international
law banditry, but then recoiling in shock at being suspected of human
rights promotion.
- Personally,
I would have respected better these virginal blushes of some
statesmen had they worn them the other way round. Being bountiful
with military imperialism but bashful of the stigma of human rights
imperialism, sounds to me like not resisting sufficiently the urge to
frequent the lower neighbourhoods of political inconstancy. For my
part, I believe that those who export war ought to see to the
parallel export of guarantees against the atrocities of war. And
then, if necessary, bear with some fortitude the opprobrium of being
labelled human rights imperialists.
- I,
for one, advertise my diversity. At my age, it may no longer be
elegant to have dreams. But that of being branded in perpetuity a
human rights imperialist, I acknowledge sounds to me particularly
seductive.
