War inside the court room
29 March 2015
Al-Saadoon & Ors v Secretary of State for Defence  EWHC 715 – read judgment
The High Court has ruled that the ECHR applies to situations where Iraqi civilians were shot during security operations conducted by British soldiers. When taken together with the parallel cases being brought against the MOD for breach of its Article 2 obligations towards its own soldiers, it appears increasingly likely that any operation undertaken by the British Army in the future will lead to legal challenges being brought against almost every aspect of its actions pre, during and post any use of military force.
Mr Justice Leggatt was asked to consider the scope of the UK’s duty under the ECHR to investigation allegations of wrongdoing by British Forces in Iraq. The Secretary of State accepted that anyone taken into custody by British Forces did have certain rights under the ECHR, in particular the right to life and the right not to be tortured. However, the one of two key areas of controversy were whether non detainee civilians who were killed outside the period when the UK was an ‘occupying power’ (1 May 2003 – 28 June 2004), were within the jurisdiction of the UK for the purposes of Article 1 of the ECHR.
Leggatt J considered the development of the ECtHR jurisprudence regarding the territorial remit of the ECHR following Bankovic v Belgium  11 BHRC 435, in particular Al-Skeini v United Kingdom  53 EHRR 18. In Al-Skeini the ECtHR held that Article 1 applied where, “as a consequence of lawful or unlawful military action”, a contracting state exercises “effective control of an area” outside its national territory (para 138). Where the requisite degree of control exists: “[t]he controlling state has the responsibility under art.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.” The ECtHR went on to state that Article 1 could also apply (1) where acts of diplomatic and consular agents present on foreign territory amounted to an exercise of jurisdiction when these agents exert authority and control over others (para 134); (2) when, through the “consent, invitation or acquiescence” of the government of a foreign territory, a contracting state “exercises all or some of the public powers normally exercised by that government” (para 135); and (3), “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 art.1 jurisdiction.” The ECtHR held that Article 1 applied during the occupation period that the UK (together with the United States) had assumed in Iraq the exercise of some of the public powers normally exercised by a sovereign government and, in particular, the UK had assumed authority and responsibility for the maintenance of security in South-East Iraq.
Leggatt J cited the judgment of the Supreme Court in the combat immunity case of Smith & Ors v The Ministry of Defence  UKSC 41 (the Susan Smith case), which extended the application of Article 2 to the ECHR to the deaths of British soldiers on active service in Iraq. He stated that the Susan Smith judgment was
expressly based on the principle of control over individuals articulated in Al-Skeini by the European Court.
Applying the principles of Al-Skeini, Mr Justice Leggatt considered first the question of effective control over an area. At §67 he held that
the test of effective control over the area will not be satisfied unless the state has the practical ability to secure the full package of Convention rights,
which in reality only meant the occupying period after the end of major combat operations, and before sovereignty was transferred back to the Iraqi government.
He then considered the exercise of public powers. At §74 he held that “test of control over individuals, like the test of control over an area, is a factual one which depends on the actual exercise of control and not on its legal basis or legitimacy. Accordingly
the question whether British forces were exercising powers of a kind which would normally be exercised by the government of Iraq can only be answered by considering what function the soldiers concerned were actually performing in any given case.
The judge therefore found at §83 that the facts of one test case during the invasion period prior to 1 May 2003 met that test –
I think it clear that policing the supply of rationed fuel to civilians at a petrol station involves exercising authority and control over those civilians through the exercise of powers normally exercised by a country’s own police force and that on the assumed facts the soldier who caused Mr Khalaf’s death was carrying out such a function. Mr Khalaf was therefore within the jurisdiction of the UK for the purpose of article 1 when he was shot and assaulted.
The Secretary of State argued that once sovereignty had passed to the interim Iraqi government, the UK was necessarily no longer exercising public powers. However, Mr Justice Leggatt found that as a question of fact, UK forces were capable of exercising public powers even after the transfer – they were asked by the Iraqi government to perform tasks including combat operations against insurgents. He concluded at §86 that
during the post-occupation period the role of the UK fell directly within the principle articulated by the European Court in Al-Skeini (at para 135) that jurisdiction may arise when ‘through the consent, invitation or acquiescence of the government of that territory, it exercises some or all of the public powers normally to be exercised by that government’.
Accordingly, the judge again found, on the facts of four of the test cases involving deaths in combat operations against insurgents, that it was “clear” that British forces were in each case “exercising police or military powers which would normally be exercised by the Iraqi government’s own security forces.”
Arguably the most significant aspect of the ruling on the territorial extent of the ECHR was Mr Justice Leggatt’s consideration of whether exercising physical control included shooting someone. He concluded that
The essential principle that I derive is that whenever and wherever a state which is a contracting party to the Convention purports to exercise legal authority or uses physical force, it must do so in a way that does not violate Convention rights. That is still a far-reaching principle of jurisdiction.
Leggatt J did recognise that it was certainly an “unattractive” prospect that,
if the UK becomes involved in a war or peacekeeping operation overseas, every enemy soldier or civilian who is killed or wounded by British forces is entitled to an investigation into whether the killing or wounding was lawful and, if it was unlawful, to claim compensation from the UK.
He addressed this dangerous complication by stating that where the armed forces of a state kill someone in the course of an armed conflict the killing will be lawful provided it is consistent with International Humanitarian Law even if it results from use of force which is not absolutely necessary to achieve any of the purposes set out in sub-paragraphs (a) to (c) of Article 2 of the ECHR. He also emphasised that
courts should recognise their lack of institutional competence to judge actions or decisions taken on the battlefield or when seeking to maintain security in dangerous and hostile conditions. For similar reasons as apply in the context of combat immunity, the courts should afford a wide latitude or, to use the jargon of the Strasbourg case law, “margin of appreciation” when judging the legality of lethal force used in such circumstances.
This judgment marks a significant development in UK jurisprudence regarding the application of the ECHR beyond the jurisdiction. Despite the caveats and safeguards identified, such as compliance with the laws of war suggesting compliance with Article 2, the availability of the UK courts as a forum, and of the ECHR as a directly applicable basis for challenge, this extra-territorial reach of the Convention beyond actual acts of occupation
creates real and difficult problems as to how human rights law under the Convention can be accommodated to the realities of international peacekeeping operations and situations of armed conflict. There are strong reasons of policy for seeking to interpret the territorial scope of the Convention in a way which limits the extent to which it impinges on military operations in the field, particularly where actual fighting is involved. There is also reason to be concerned that, once the Convention is held to apply to the use of force in overseas military operations, then the inevitable consequence of any major foreign intervention such as the British involvement in Iraq will be a flood of claims.
The Al Sweedy inquiry offers little comfort that such a flood of claims will not include those that are wholly unmeritorious.