European Convention on Human Rights applied in Basrah, UK failed duties to Iraqi civilians

7 July 2011 by

Al-Skeini v. United Kingdom, European Court of Human Rights Grand Chamber (Application no. 55721/07) – Read judgment / press release

Al-Jedda v. the UK (Application No. 27021/08)- Read judgment / press release

The Grand Chamber of the European Court of Human Rights has ruled that from 1 May 2003 to 28 June 2004 the UK had jurisdiction under Article 1 (obligation to respect human rights) of the European Convention on Human Rights in respect of civilians killed during security operations carried out by UK soldiers in Basrah.

The court went on to find in Al-Skeini that there had been a failure to conduct an independent and effective investigation into the deaths of the relatives of five of the six applicants, in violation of Article 2 (right to life) of the Convention. The court awarded 17,000 euros to five of the six applicants, in addition to 50,000 euros in costs jointly.

In Al-Jedda, the court found a violation of Article 5 (1) (right to liberty and security) of the European Convention in relation to the internment of an Iraqi for more than three years (2004- 2007) in a detention centre in Basrah.

It is difficult to overestimate the importance of these decisions, which establishes that elements of the European Convention on Human Rights applied not just in UK military bases but also the whole of South East Iraq. For more on the potential impact, see this EJIL:Talk! post. The court held at paragraph 149 of Al-Skeini:

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.

So, in those “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.

The UK therefore had jurisdiction within the meaning of the European Convention on Human Rights in respect of all of the applicants. The next question was whether it had carried out an effective investigation into the deaths as is required under Article 2 of the European Convention.

The court ruled that the UK had failed in its duty in all but one case, that of Baha Mousa since there had been a public inquiry into his death. It made clear that

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 therefore apparent 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 to 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

As I said in my preview post last week, the 7 applicants in the case were killed, allegedly killed or detained by British forces in Iraq between 2003 and 2007. Both of the claims reached the House of Lords in the UK (now the Supreme Court), and in all but one case, which involved a death in a military detention centre, the court found that the Human Rights Act did not apply in Basra at the time, and therefore the UK military had no obligation to observe the requirements under the European Convention on Human Rights, and in particular article 2 (right to life) and article 5 (right to liberty).

The background – Al-Skeini

The following summary is based on the court’s press release. In Al-Skeini, the applicants’ six close relatives were killed in Basra during the period (1 May 2003 to 28 June 2004) when the United Kingdom was an occupying power in Iraq. Three of the victims were shot dead or shot and fatally wounded by British soldiers. The third applicant’s wife was shot and fatally wounded during a firefight between a British patrol and a number of gunmen. The fifth applicant’s son was allegedly beaten and then forced into a river, where he drowned. The sixth applicant’s son, Baha Mousa, was seized by British troops whilst at work in a hotel in Basra and taken to a British military base where he was beaten and died of asphyxiation. Baha Mousa’s death has been the subject of a public inquiry, which is due to report on 8 September 2011.

In March 2004, the Secretary of State for defence decided not to conduct independent inquiries into or accept liability for the deaths of the applicants’ relatives or pay compensation. The applicants applied for judicial review.

On 13 June 2007 the majority of the House of Lords found that the United Kingdom did not have jurisdiction over the victims’ deaths except in relation to Baha Mousa, who was a detainee at a military base when he died.

Al-Jedda

Hilal Abdul-Razzaq Ali Al-Jedda, travelled from London to Iraq in September 2004. He was arrested there by United States troops, accompanied by Iraqi national guards and British soldiers, on suspicion of being a member of a terrorist group involved in weapons smuggling and explosive attacks in Iraq. He was taken to a detention centre in Basra run by British forces. At each periodic review of his detention it was concluded that he remained a threat and that it was still necessary to intern him. He was released on 30 December 2007.

The applicant denied the allegations against him. No criminal charges were brought against him.

In June 2005 he brought a judicial review claim before the British courts, challenging the lawfulness of his continued detention and the refusal to return him to the United Kingdom. The courts held that United Nations Security Council Resolution 1546 and successive resolutions authorised British forces within the multi-national force to use internment “where necessary for imperative reasons of security in Iraq” and that such binding Security Council decisions superseded all other treaty commitments. Resolution 1546 therefore overrode Article 5 (right to liberty and security) in relation to the applicant’s detention in Basra. That decision was upheld by the House of Lords.

These are very important decisions indeed, and will probably be very controversial. Arguably, the task which soldiers have when “controlling” a foreign and sometimes hostile area is hard enough without having to worry about their duties under the European Convention. On the other hand, they already have duties under the Geneva Conventions and other laws of war, so the practical effect may not be as onerous as first assumed. We will of course cover the case in more detail in the coming days.

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