War remains inside the court room: jurisdiction under ECHR

11 September 2016 by David Hart KC

Al-Saadoon & Ors v Secretary of State for Defence [2016] EWCA Civ 811, 9 September 2016  – read judgment

This is an extremely important judgment from the Court of Appeal on the reach of the ECHR into war zones, in this case Iraq. The CA, with the only judgment given by Lloyd Jones LJ, disagreed in part with Leggatt J – for whose judgment see Dominic Ruck Keene’s post here.

3 main points arose on appeal.

The first was the jurisdictional question under Art.1 of the Convention – were  Iraqi civilians killed or injured by British servicemen covered by the ECHR?

The second is the extent to which the UK is under a duty to investigate ECHR violations alleged by Iraqis, under Arts 3 (torture) and 5 (unlawful detention).

And the third is the question of whether the UN Torture Convention could be relied upon in domestic law proceedings.

I shall cover the first point in this post. The blog will cover the other points shortly. The points arose by way of preliminary legal issues in various test cases drawn from the 2,000 or so Iraqi claimants.

Jurisdiction under Art.1

Art. 1 ECHR places obligations on parties

to secure to everyone within their jurisdiction

Convention rights. It is now clear that “jurisdiction” in Art.1 extends beyond the territorial boundaries of the contracting states. Indeed it was common ground that anyone taken into custody by British Forces has certain rights under the ECHR, in particular the right to life under Art.2 and the right not to be tortured under Art.3.

Beyond that agreement lay a great deal of controversy, generated mostly by the difficulty of rationalising two decisions of the Grand Chamber of the ECtHR.

In Bankovic v Belgium  there was no jurisdiction for claims arising out of NATO aerial bombing during the Kosovo conflict – then outside ECHR territory. Infliction of violence was not enough to confer jurisdiction.

Contrast Al-Skeini v United Kingdom, where jurisdiction did arise for relatives of Iraqis killed during the occupation of Iraq. Al-Skeini sought to lay down some general principles for this extra-territorial jurisdiction. It held that Article 1 applied where, as a consequence of lawful or unlawful military action, a state exercises

effective control of an area

outside its national territory (para 138). This argument was not pursued in the present cases.

Al-Skeini identified another major exception to the territorial principle, namely where there was “state agent authority and control”, which the ECtHR then divided into three sub-categories:

(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.”

(1) did not arise. The battleground lay in (2) and (3).

(2) Public powers

In Al-Skeini, the ECtHR held that Art. 1 applied during the occupation period when the UK (with the US) had assumed some of the public powers normally exercised by government. The UK had assumed responsibility for the maintenance of security in South-East Iraq. Hence exception (2) would potentially apply .

But that conclusion did not answer all the questions in the current litigation, with claims brought in respect of incidents both before and after the period when the UK was an ‘occupying power’ (1 May 2003 – 28 June 2004).

As to before the occupation, i.e. during the invasion, the CA said that this would depend on the facts, but that no formal declaration of occupation was required. Applying this to one of the test cases, the CA agreed with the judge when he concluded that policing the supply of rationed fuel to civilians at a petrol station involves exercising authority and control over those via powers normally exercised by a country’s own police force. Hence, on the assumed facts, Mr Khalaf’s death in a petrol queue managed by British troops was within the jurisdiction of the UK for the purpose of Art.1: [77].

As for after the occupation, i.e. once an interim Iraqi government was in place, the same applied. Hence when (again on assumed facts) British soldiers tried to stop Captain Taleb’s car at a crossroad, and very quickly started shooting, leading to his death, they were exercising military, and hence public, powers within (2): see para. [80]. The same conclusions was reached in respect of British military raids leading to the death of Raad Karim at his family house in November 2006 [83], and fire from a British tank killing Yousif Naser walking to work in April 2007: [85].  A different conclusion was reached in two test cases where Iraqi civilians were killed in a US-led operation in June 2007 – the UK had a limited logistical supporting role in it and were not present during the operation itself: [93].

(3) Exercise of control over an individual 

It was in the context of this additional exception that the major problem in reconciling Bankovic and Al-Skeini arose. Leggatt J had concluded that exercise of control over an individual included shooting someone – it was after all the ultimate exercise of physical control over another human being: summarised at [59] of the CA judgment. Hence, he concluded that whenever and wherever a contracting state sought to exercise legal authority or uses physical force, it must do so in a way that does not violate Convention rights.

The CA disagreed.

It accepted that Al-Skeini was a major departure from Bankovic, in its articulation of the “state agent authority and control principle”,

a potentially massive expansion of the scope of application of the Convention, the full implications of which remain to be worked out. [33]

and

jurisdiction founded on state agent authority and control which is, on any view, of enormous breadth ….the genie having been released from the bottle, it may now prove impossible to contain…: [62]

The judge concluded that Al-Skeini had had the effect of overruling Bankovic: [61]. The CA was much more circumspect but was of broadly the same view: [68]

I am unable to conclude….that the Grand Chamber must be taken to have intended that the conclusion in the earlier case that the bombing was outside the scope of the Convention should stand.

But, critically, this conclusion did not mean that any use of physical force by a Convention party anywhere could lead to a violation.

…I consider that in laying down this basis of extra-territorial jurisdiction the Grand Chamber required a greater degree of power and control than that represented by the use of lethal or potentially lethal force alone. In other words, I believe that the intention of the Strasbourg court was to require that there be an element of control of the individual prior to the use of lethal force. [69]

The step taken by the judge, if it was to be taken at all, should be taken by Strasbourg, not by domestic courts:  [70]. After all, Strasbourg had had an easy way of deciding the Al-Skeini cases in favour of the applicants (without recourse to the public powers exception) had it simply applied the physical power and control exception as per the judge’s judgment: [65].

The CA was well aware of the acute difficulties as to where the courts should draw the line on its own test: [62]. The judge pointed out the illogicality  of a potential violation arising when soldiers detained a civilian and then shot him, whereas if they had just shot him before detaining him, there would be no violation: [59]. But, said the CA, that was Strasbourg’s problem to solve in the light of Al-Skeini. And, pending such guidance, domestic courts would just have to get on and decide in each case at what point soldiers had an element of prior control of the individual. You do not need much imagination to see the problem: it may be said that a sniper picking off a civilian at 1km would be non-justiciable, whereas soldiers cornering a group of civilians up an alley-way before swiftly despatching them would arguably give rise to a justiciable killing.

The CA applied this ruling to the test cases. A number of claims (e.g. Khalaf) were disallowed on this ground, though the same cases were allowed to proceed on ground (2), public powers. But Lefteh Awdeh, killed by a swerving British Army truck, was not within the jurisdiction. So, oddly, the major legal dispute did not make much difference to the specific cases before the court, though one can readily understand that there may be many cases where deaths occurred in open warfare without the “public powers” exception applying so that the only route to liability may be under this ground (3).

Comment

An impressive and courageous judgment from Leggatt J and an equally impressive one here from an international law specialist, Lloyd Jones LJ, in the CA. Ultimately the difference between the courts may amount to no more than the judge thinking that his conclusion on point (2) ought to follow from Al-Skeini whereas the CA thought that this was a step which should only be taken by Strasbourg. There perhaps lurks in its reasoning a desire for Strasbourg to reconsider the full breadth of Al-Skeini but, again, it thought that this not for a domestic court to say.

Surely not the last we are going to hear of the case. It has all the hallmarks of a case for the Supreme Court, and, if the MoD wins there, for Strasbourg, at which point we really ought to learn whether any part of Bankovic remains good law. On any view, the outcome of the case (together with the servicemen’s claims under Art.2: see post here) will be very important for the Government as it considers the long-term implications of the Human Rights Act.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

• War inside the court room
• The legal fog of war among the people
• Law of armed conflict means anti-detention provision in ECHR may be misapplied re Iraqi detainee
• Supreme Court gives the go ahead for negligence and human rights claims for British servicemen deaths in Iraq
• Article 2 and combat immunity: where next after Al Skeini and Susan Smith?