War, power and control: the problem of jurisdiction

14 July 2011 by Alasdair Henderson

The decisions by the Grand Chamber of the European Court of Human Rights in Al-Skeini and Al-Jedda, handed down last Thursday, have generally been hailed as leap forward for human rights protection. We have already provided a summary of the decisions and pointed to some of the commentary here.

However, it is worth considering the core parts of these rulings a little more carefully. Without wishing to put too much of a dampener on the initial excitement from human rights campaigners about the outcome, the Court’s reasoning is perhaps not quite the radical breakthrough it first appeared to be. In fact, as Judge Bonello pointed out in his concurring opinion (which has drawn a lot of attention for his comments about ‘human rights imperialism’), the principles governing jurisdiction under Article 1 of the ECHR are not that much clearer following these decisions.

Article 1 ECHR and Bankovic

Article 1 ECHR provides that:

The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.

The main question considered by the Court in Al-Skeini was what “within their jurisdiction” means, i.e. when and where do the obligations on States under the ECHR apply? The most important previous decision was the case of Bankovic, which concerned deaths caused by the bombing of a radio and TV station in Belgrade by NATO aircraft during the Kosovo war in 1999. In that case the Court held that jurisdiction was primarily territorial, but that there are some exceptions, ruling (at [71]) that:

In sum, the case-law of the Court demonstrates that its recognition of the exercise of extra-territorial jurisdiction by a Contracting State is exceptional: it has done so when the respondent 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 that Government.

Notice that there are two elements here. A State has extra-territorial jurisdiction where it (i) has effective control of a territory (by military occupation or invitation) and (ii) exercises all or some of the public powers normally exercised by that territory’s government.

The Court also recognised other, limited, exceptions where a State has extra-territorial jurisdiction at [73] such as “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.”

On the facts of Bankovic the Court held that there was no jurisdiction. It dismissed the applicant’s argument (which was, effectively, that “anyone adversely affected by an act imputable to a Contracting State, wherever in the world that act may have been committed or its consequences felt, is thereby brought within the jurisdiction of that State”) on the basis that “the wording of Article 1 does not provide any support for the…suggestion that the positive obligation in Article 1 to secure “the rights and freedoms defined in Section I of this Convention” can be divided and tailored in accordance with the particular circumstances of the extra-territorial act in question” (see [75]).

The Court then distinguished its previous decisions where it had held that Turkey had jurisdiction under the ECHR in Northern Cyprus on the basis that (at [80]):

…the Convention is 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 [Former Republic of Yugoslavia] clearly does not fall within this legal space. The Convention was not designed to be applied throughout the world, even in respect of the conduct of Contracting States. Accordingly, the desirability of avoiding a gap or vacuum in human rights’ protection has so far been relied on by the Court in favour of establishing jurisdiction only when the territory in question was one that, but for the specific circumstances, would normally be covered by the Convention.

The effect of this last point seemed to be that the ECHR was still basically restricted to the territory of the Council of Europe countries.

The approach in Al-Skeini

The basic principle that jurisdiction is primarily territorial was repeated in Al-Skeini, the Court holding (at [132]) that:

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.

It is important to note here that the Court in Al-Skeini is from the start taking care to point out that the question of whether the ECHR applies extra-territorially is highly fact-specific.

The Court then set out three exceptions where the ECHR does apply extra-territorially:

(1) State agent authority and control [134-137]. The Court identifies three types of case under this heading. First, the acts of diplomatic and consular agents (as referred to in Bankovic, so no change there). Second, where through the consent of the government of a territory it exercises all or some of the public powers normally exercised by that government (Bankovic is cited here, but notice that one of the two elements described above has been mysteriously dropped). Third, where the use of force by a State’s agents operating outside its territory bring an individual under the control of the State’s authorities, and thereby into its jurisdiction (the examples given here involve Issa v. Turkey, concerning six men taken into custody and executed by Turkish soldiers in Northern Iraq, and Al-Saadoon v. UK, concerning two Iraqis detained in British-controlled military prisons in Iraq).

The Court tries to tie these three (quite different) types of case together as follows:

…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).

However, this is bit of a fudge. The second type of case referred to under this heading derives from the broad exercise of public powers, and the Al-Saadoon situation can probably be analysed in this way. Yet this is lumped together with the quite different third type of case, which involve very specific instances of the use of force. Moreover, as explained above, in Bankovic the Court expressly said that the Convention rights cannot be divided and tailored. Yet the Court does not actually say it is overruling Bankovic on this point, it simply tells the reader to compare its pronouncement now to what it said before (rather cheekily, as Marko Milanovic has pointed out).

(2) Effective control over an area [138-140]. This is where we find the second element of the Bankovic test – where (as a consequence of lawful or unlawful military action) a State exercises effective control over another territory, there is ECHR jurisdiction. Notice how this has been subtly expanded from the Bankovic definition – there is no mention of military occupation, just military ‘action’. The Court reiterates again that it is a question of fact whether a State has effective control, primarily with reference to the strength of its military presence, but also the extent to which it bankrolls the local administration.

(3) The Convention legal space (espace juridique) [141-142]. The Court reaffirmed that where (as in Northern Cyprus) the territory of one Convention State is occupied by the armed forces of another, the occupying State has ECHR jurisdiction, so as to avoid a ‘vacuum’ of human rights protection. But it then went on to say that this “does not imply…that jurisdiction under Article 1…can never exist outside the territory covered by the Council of Europe Member States.” That was, in fact, the obvious implication in Bankovic. But again the Court does not expressly say it is overruling Bankovic, nor does it deal with the rest of the analysis in Bankovic that led up to the espace juridique conclusion.

Of these three exceptions, the most natural to apply to the facts in Al-Skeini would have been number (2) – effective control – since the UK was in charge of Southern Iraq as the lead occupying power from May 2003 until June 2004. Indeed the Court sets out at [143-148] the relevant letters to the UN Security Council (“UNSC”) and Coalition Provisional Authority (“CPA”) acts which gave the UK command of Southern Iraq during this period. However, in its conclusion that the UK did have ECHR jurisdiction over the applicants’ relatives the Court actually appears to have conflated exception (2) with exception (1) – state agent authority and control – as follows:

…following the removal from power of the Ba’ath regime and until the accession of the Interim Government, the United Kingdom…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…

Notice how the state agent exception (in bold) is run together with the effective control exception (underlined).

Are we really any clearer?

The judgment in Al-Skeini is a huge success for the applicants, but in terms of clarifying the case-law on ECHR jurisdiction it is not nearly so successful. In his forceful concurring opinion Judge Bonello described the situation pre-Al Skeini in damning terms:

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…

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 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…

But his view was that the main judgment in Al-Skeini, by trying to draw together the existing case-law and apply it to the facts of the present case, was still flawed:

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.

and, further on:

…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.

There is a lot of truth in these comments. In Al-Skeini the Court has sort of overruled Bankovic, but not entirely. The Court has also clarified what the exceptions are to the general principle of territoriality, but then conflated two of them without much explanation. Finally, the Court has made it clear that ECHR extra-territorial jurisdiction is still highly fact-sensitive and case-specific. Overall, it is hard to see how it is not just yet another judgment made on a need-to-decide basis, which simply adds one more patch (albeit a big one) onto the confusing case-law.

Post-script – Al-Jedda

The reasoning in Al-Jedda on jurisdiction/attribution is probably less controversial (although not as clear as it might have been) so it will not be dealt with in depth here. The potential bombshell in this decision comes in the Court’s response to the UK’s argument that UNSC Resolution 1546 created an obligation to use internment in Iraq and that, under Article 103 of the UN Charter, that obligation prevailed over its ECHR duties. The Court ruled (at [102]) that:

…there must be a presumption that the Security Council does not intend to impose any obligation on Member States to breach fundamental principles of human rights. In the event of any ambiguity in the terms of a Security Council Resolution, the Court must therefore choose the interpretation which is most in harmony with the requirements of the Convention and which avoids any conflict of obligations. In the light of the United Nations’ important role in promoting and encouraging respect for human rights, it is to be expected that clear and explicit language would be used were the Security Council to intend States to take particular measures which would conflict with their obligations under international human rights law.

The Court is almost saying that it can judicially review any actions taken by Convention States under an UNSC Resolution. This has major implications. For a start, it opens up a whole can of worms in relation to the current military action in Libya, but that is a whole other issue.

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