A Clash of Rights – Does the ECHR apply in Syria?

18 September 2015 by David Scott

Does the current jurisprudence on Article 1 of the ECHR create potential human rights problems in the Syrian conflict?

by David Scott

Reports of two British citizens killed by RAF drone strikes in Syria last week have thrown up a whole host of ethical and legal questions. Former Attorney General Dominic Grieve has already suggested the decision to launch the attack could be “legally reviewed or challenged”, while Defence Secretary Michael Fallon has made clear that the UK would not hesitate to launch such attacks in the future.

This post assesses the (European) human rights dimension of these targeted drone strikes, particularly in the wake of Al-Saadoon & Ors v Secretary of State for Defence [2015] EWHC 715 (Admin). I must express gratitude to Dr Marko Milanovic, whose lectures at the Helsinki Summer Seminar and excellent posts on EJIL: Talk! greatly informed this post. Any mistakes are, of course, my own.

The case law

The first question is whether the ECHR would apply at all in such cases. Article 1 provides:

Obligation to respect Human Rights

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

The interpretation of “within their jurisdiction” has gone through many forms in Strasbourg, but was effectively refined in the 2011 case of Al-Skeini and Others v United Kingdom. The case related to extraterritorial application of the Convention concerning the deaths of Iraqi civilians in UK custody. At paragraphs 131-142 the Grand Chamber outlined three forms of jurisdiction:

• The territorial principle: the “primary” form of jurisdiction.
  • Extra-territorial application will only occur in “exceptional cases.” (paragraph 131)
• State agent authority and control, where “Article 1 may extend to acts of its authorities which produce effects outside its own territory” (paragraph 133).
  • Examples given include diplomatic and consular agents (paragraph 134); consent, invitation or acquiescence of the Government of the territory to exercise “all or some” public powers, for example executive or judicial functions of another State (paragraph 135); and cases where “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”, for example where an individual is taken into the custody of State agents abroad, as was the case in Öcalan v Turkey. “What is decisive in such cases is the exercise of physical power and control over the person in question”. (paragraph 137)
  • Crucially, the Court continues by noting that Convention rights in these cases can be “divided and tailored”, where the occupying power is required to uphold only the rights it is currently exercising over the individual, rather than the entire Convention.
• Effective control over an area, when, “as a consequence of lawful or unlawful military action, a Contracting State exercises effective control of an area outside that national territory”. (paragraph 138)
  • Effective control is a question of fact. (paragraph 139). “In determining whether effective control exists, the Court will primarily have reference to the strength of the State’s military presence in the area…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”.

The Court further elaborated on the “legal space (“espace juridique”) of the Convention”, asserting 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 “legal space of the Convention” (paragraph 142).

These three forms of jurisdiction has been cited and followed in the judgments of Hassan v United Kingdom (paragraphs 74-80, including acknowledgement of the extraterritorial application of the Convention by the Government, paragraphs 71 and 76) and Jaloud v The Netherlands (paragraph 139).

In Smith v Ministry of Defence [2014] AC 52, the Supreme Court similarly followed Strasbourg jurisprudence, at paragraphs 27-41, finding that soldiers injured or killed while serving in Iraq were within the UK’s jurisdiction for the purposes of the Convention. As an aside, it is worth wondering how application of the Convention would affect the British RAF pilots currently flying under US-led missions. Should they be injured or killed while under the command of the US, one could question whether the UK had some ongoing duty to ensure the pilots would only be placed in Convention-compliant situations. If one were to take an analogous case to Smith, a potential human rights case could arise if the UK was somehow negligent in sending those citizens into a situation in violation of the Convention, particularly when there was no Parliamentary oversight of their deployment. This would of course be exceptionally difficult to prove on the merits.

Returning to the case law, it is difficult to fit drone strikes into the jurisdictional criteria described above. Jurisdiction cannot be applied under the territorial principle, nor under the concept of effective control over the area. The question is thus whether a targeted drone strike could feasibly be described as “state agent authority and control”.

In the recent High Court decision Al-Saadoon & Ors v Secretary of State for Defence (previously summarised on UKHRB here), Legatt J appeared to expand jurisdiction further than Strasbourg had previously gone. While the case concerned a wide range of different test cases alleging a variety of abuses in Iraq, for our purposes the most important sections relate to the treatment of insurgent deaths during combat operations after the interim Iraqi government took power.

In that case, the Secretary of State argued that once sovereignty had passed to the interim Iraqi government, the UK was necessarily no longer exercising public powers, and thus jurisdiction could not be extended . However, the judge found that, as a question of fact, UK forces were still capable of exercising public powers after the transfer – they were asked by the Iraqi government to perform tasks including combat operations against insurgents, for example. He concluded at paragraph 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, jurisdiction could be extended as 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.”

However, Legatt J continued on to consider an alternative argument put forward by the claimants that “in any case of an individual shot by a British soldier, even if the soldier was not exercising authority and control by reason of exercising public powers, the shooting was an exercise of physical power and control which brought the individual within the jurisdiction of the UK” (paragraph 89). After proceeding through a careful consideration of the Strasbourg case law on this matter, Legatt J  concluded at paragraph 106

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.

Accordingly, he found at paragraph 294 that jurisdiction occurred “in those test cases where the individual was shot by a British soldier both (a) because such shootings occurred in the course of security operations in which British forces were exercising public powers that would normally be exercised by the government of Iraq and (b) because shooting someone involves the exercise of physical power over that person”. This approach (appears) to have been followed at paragraph 95 of the more recent Court of Appeal judgment in Serdar Mohammed and Others v Secretary of State for Defence [2015] EWCA Civ 843.

Drone strikes and “physical force”

The reasoning of Al-Saadoon can be read in two ways, which I’ll separate as to whether “physical force” is understood in terms of method or consequence. The former understanding appears to fit with the previously discussed case law. In Al-Skeini the UK was temporarily carrying out the powers of government, in particular security operations (paragraph 150); in Hassan the applicant was “within the physical power and control of the United Kingdom soldiers” (paragraph 76); in Jaloud the Netherlands had assumed responsibility for providing security at the checkpoint, and thus asserted authority and control over those passing through (paragraph 152); in Smith a jurisdictional link was established in particular due to the anterior jurisdictional authority over armed forces necessary to extend jurisdiction extra-territorially (paragraph 50-52); and in Al Saadoon the British soldiers were still physically present in Iraq. In that sense, it’s difficult to claim drone activity in Syria is “physical force” – an occupying, “boots on the ground” force – for the purposes of extraterritorial application.

On the other hand, the use of a drone strike is clearly an extreme example of “physical force” in terms of its consequence. There is little greater physical force than the taking someone’s life, as the claimants argued. Understanding the principle in this way, targeted drone strikes would clearly engage the Convention.

Legatt J’s judgment appears to float somewhere in-between these two positions. At paragraph 95 he states

I find it impossible to say that shooting someone dead does not involve the exercise of physical power and control over that person. Using force to kill is indeed the ultimate exercise of physical control over another human being. Nor as it seems to me can a principled system of human rights law draw a distinction between killing an individual after arresting him and simply shooting him without arresting him first, such that in the first case there is an obligation to respect the person’s right to life yet in the second case there is not.

In the next paragraph he continues

Counsel for the Secretary of State submitted that there is a rational distinction between those who are under the complete authority and control of a state as a result of being taken into custody and those who are shot by agents of the state when they are not in custody. However, the very next point made in their written submissions seems to me to illustrate why this distinction is not a tenable one. They say:

“Of course, if the person holding the gun is in such control of the situation that he is literally able to hold the gun to the individual’s head, it may be that the individual is in fact detained.”

Making the applicability of a system of human rights law depend on the distance between the gun and a person’s head in a case where a person is shot is not a position which in my view can reasonably be sustained.

These paragraphs can be read either way. One could take the first two sentences of paragraph 95 and the final sentence of paragraph 96 as affirming the application of the Convention in uses of force, regardless of the distance between the victim and the soldier. On the other hand, however, his reasoning is clearly based in the context of a “physically there” soldier. The repeated references to the distinction between detainment and the use of lethal force (where Article 1 jurisdiction would definitely apply, see also paragraph 107: “I do not think, however, that it would be an effective solution, even if it were legitimate, to seek to stem this tide by drawing a line between cases where force is used to detain and cases where force is used to kill”) suggest a level of necessary occupation or “presence” simply inapplicable to drone strikes. As such, jurisdiction cannot be extended.

One does not want to stretch Mr Legatt’s reasoning beyond his intention. But he makes a final pertinent point. The Secretary of State argued that such an interpretation of jurisdiction “collapses the distinction between jurisdiction and breach” (paragraph 108). This argument is roundly rejected. Legatt J concluded that, regardless of jurisdictional questions:

It…does not follow that, because shooting an individual involves an exercise of physical power which brings that person within the UK’s jurisdiction, there is any breach of a Convention right if the individual is killed or wounded. Whether there is such a violation depends on whether the use of force was justified…

…I think it important 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 circumstance

Merits

Mr Legatt is correct. Even if the Convention can be applied extraterritoriality, it is extremely unlikely that, should the case reach Strasbourg, the Court would find a violation in these cases. Firstly, there is the question of whether application of international humanitarian law would “trump” application of the Convention. This is a complex question deserving of deeper consideration on its own (see, to choose but three examples, discussions here, here, here and here), but one interesting consideration is the recent report on Drones and targeted killings: the need to uphold human rights and international law adopted by the Parliamentary Assembly for the Council of Europe (and approved by the UK representatives, no less). Of particular interest are the statements made by the Rapporteur Mr Díaz Tejera at paragraphs 24 and 25

In order to justify the application of international humanitarian law, which allows for a wider use of targeted killings than international human rights law, the notion of non-international armed conflict has been given such a wide interpretation by some States as to include numerous regions across the world as “battlefields” of the “global war on terror”. In my view, this threatens to blur the line between armed conflict and law enforcement to the detriment of the protection of human rights and should therefore be resisted. In the extreme, “[a]dvising otherwise would mean that the whole world is potentially a battlefield and that a person moving around the globe could be lawfully targeted under international humanitarian law in the territories of States not party to any armed conflict”.

This said, I would have little doubt that the fight against the terrorist group known as “IS” or against organised guerilla groups acting under the banner of Al Quaida is warfare and not police work, so the use of armed drones would be assessed under international humanitarian law. The same is true for many regions of Afghanistan, where a fully fledged war against the Taliban is being waged.

Legatt J similarly noted the wider permissibility of lethal force under international humanitarian law (paragraph 111)

It seems to me that the same approach must in principle apply to article 2. Thus, 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 IHL 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.

Even excluding such considerations of wider international law, a violation under Article 2 on the merits would remain unlikely. While the Court takes an extremely dim view on extrajudicial killings and applies a strict test of absolute necessity, the national security considerations engaged here are inherently sensitive and as such the Court would most likely be very reluctant to intervene. To return to Al Saadoon, Leggatt J recognised it would be 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.

The scorn poured on Jeremy Corbyn’s comments on the death of Osama Bin Laden (and, in fact, his similar comments in the present case) would pale in comparison to the vitriol facing the Court if it upheld the rights of ISIS operatives.

Conclusion

The Court’s dilemma can perhaps be seen as a clash of human rights. On the one hand, the Court’s very purpose is to protect the rights of all under the jurisdiction of its Member States, regardless of the difficult situation this places them in, and one can feel understandably queasy at the idea of the UK Government ordering targeted killings with no Parliamentary or judicial oversight. On the other hand, the daily mass violations of human rights under ISIS are a real and pressing issue, and to intervene in UK intervention would be a very risky step, both in terms of the Court’s frosty relationship with the UK and its own ethical compass.

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