Developments in the oversight of British Troops abroad – the Roundup

5 October 2016 by Thomas Beamont

In the news

The oversight of the conduct of British soldiers in Iraq has been subject of two recent developments. The first is political, as Prime Minister Theresa May has renewed criticism of investigations into allegations of criminal behaviour of British troops. The second is legal, with the Court of Appeal offering clarification as to the role of the ECHR in conflicts abroad. However, comments by Defence Secretary Michael Fallon have since thrown into doubt the future role of the ECHR in conflicts abroad.

Prime Minister Theresa May has joined a number of prominent politicians in criticising the “industry of vexatious allegations” against British troops in Iraq. The issue surrounds the work of the Iraq Historic Allegations Team (IHAT). IHAT was established in November 2010 to investigate a number of allegations of murder and abuse of Iraqi civilians by British soldiers between 2003 and 2009. By the end of June this year IHAT had received allegations of potential criminal behaviour relating to 3367 victims. of which 1668 remain to be considered by the body.

The role of IHAT has long been contested in politics. The Prime Minister’s comments echo those of her predecessor David Cameron earlier this year, when he called for a clampdown on “spurious” claims relating to the conduct of the military in Iraq. Former Prime Minister Tony Blair has argued that the investigative process should never have begun. “Our Armed Forces gave extraordinary service in both Iraq and Afghanistan,” he stressed, “and this type of investigation simply makes their job harder to do.” By contrast, Leader of the Opposition Jeremy Corbyn has welcomed the investigations, saying recently that “we have signed up for international law on the behaviour of troops.”

IHAT is set to dramatically reduce the scope of its ongoing investigations in the coming years, to 50 by the end of 2017. A spokesman explained that it intended to “weed out allegations where there isn’t a case to answer or where it is not proportionate to conduct a full investigation.” Similar allegations of abuse will also be dealt with together. The Justice Gap reports that to date the Government has settled 326 cases through IHAT, paying out £20 million.

British soldiers and the ECHR

Oversight of British Troops abroad is also a subject of debate in the domestic courts. Whereas IHAT investigates allegations of criminal conduct, the role of the European Convention on Human Rights in Iraq was recently discussed in the Court of Appeal in Al-Saadoon & Ors v Secretary of State for Defence [2016] EWCA Civ 811.

The first issue for the Court of Appeal was whether situations where Iraqi civilians were killed or injured by British soldiers were covered by the ECHR. Two ways in which the ECHR can apply ‘extra-territorially’ were considered. The first was where a contracting state to the ECHR exercised ‘public powers’ abroad. The second was where the use of force by a state’s agents brings those individuals within the jurisdiction of the ECHR.

Whereas the ECHR has been held to apply where Britain “exercises all or some of the public powers normally exercised” by the Iraqi government, it was unclear whether the same was true before, or after, the occupation. On this point, the Court of Appeal stressed before the occupation, i.e. during the invasion itself, this would depend on the facts, though no formal declaration of occupation was required. The same was true after the occupation, i.e. after the establishment of an interim Iraqi government.

The more contentious point was whether a death was subject to ECHR jurisdiction due to the use of force, and the degree of control exercised upon someone before that force. On this point, the Court of Appeal held that it was bound by Strasbourg case law, which requires an “element of control of the individual prior to the use of lethal force.” David Hart QC has written a detailed analysis of this point here.

The second issue concerned Article 3 of the ECHR, which provides that “no one shall be subjected to torture or to inhuman or degrading treatment or punishment.” The claimants argued that Article 3 imposes a duty to investigate where there is a claim that a person transferred to the custody of another State faced a real risk of torture or serious mistreatment. The Court disagreed, finding that there was no authority in case law, or in the implications of the words of the Article itself, to impose such a duty.

The final issue considered by the Court involved whether the rights contained in the UN Convention Against Torture (CAT) could be relied upon in UK courts. The UK ratified the CAT in 1988, but it has not been incorporated into domestic law by an Act of Parliament. The Court was clear: as the Convention Against Torture has not been so incorporated, rights contained within it could not be relied upon in UK courts. For a detailed analysis of this point, see this post by Alasdair Henderson.

The role of the ECHR in conflicts abroad has become the subject of a spirited debate in the press. Ms May will find some support from Tom Tugendhat MP in the Telegraph, while Martha Spurrier, Director of Liberty, takes the opposing view in the Guardian.

Significantly, recent comments by Defence Secretary Michael Fallon have thrown into doubt the future role of the ECHR in conflicts abroad. Mr Fallon announced that the plans for the UK to derogate from some of its ECHR obligations following parliamentary approval. Prime Minister Theresa May claimed that the change would end the “industry of vexatious claims” against soldiers. Martha Spurrier has condemned the move, arguing that “our government has a duty not only to implement (the ECHR) during its own military operations, but to uphold its standards as an example to others.” See more in this post by Rosalind English.

In other news

The Guardian reports that a group of 175 civil society organisations have claimed that the UK is failing to meet a number of human rights recommendations by the United Nations. Whilst acknowledging that the UK has a “generally good level of rights protection,” a number of recommendations from the UN have gone unanswered. The organisations highlight conditions in prisons, the disproportionate effect of stop and search on minority communities, and racially-motivated hate crimes, as areas of concern. The report also highlights the groups’ concerns concerning the proposed repeal of the Human Rights Act. The report was prepared before the UK’s upcoming appearance before the UN human rights council in 2017.

The Independent reports that the Metropolitan Police have failed in their attempt to prevent a woman believed to be a practitioner of female genital mutilation from entering the UK. Mr Justice Holman, who heard the application for an FGM protection order and an inherent jurisdiction order, said that the matter was one for the Secretary of State. Family Law

reports that barrister Zimran Samuel, acting for the police, explained that FGM protection regime in the UK required a protection order to be for the protection of a specific, named individual, which did not apply in this case.

The Free Movement blog has reported the Government’s announcement to increase fees for immigration tribunal hearings. The fees for an application to the First-tier Tribunal (Immigration and Asylum Chamber) for an oral hearing will increase from £140 to £800. A fee of £350 for an application to the Upper Tribunal for permission to appeal will be introduced, as well as an appeal fee of £510. The Ministry of Justice estimates that the charges will raise £34m a year in excess of the £7m current raised by existing fees. The Public and Commercial Services Union has described the fee increases as “utterly reprehensible.” Whilst there has been a slight widening of the exceptions to those who have to appeal fees, the Free Movement blog argues “it is axiomatic that the impact will mainly be felt by ethnic minority communities.”

In the courts

Mustafić-Mujić and Others v. the Netherlands

The applicants were all relatives of men killed in the Srebrenica massacre in July 1995. They complained that the Dutch authorities had wrongly failed to investigate and prosecute the conduct of three Dutch servicemen who were members of the UN peacekeeping forces. It was alleged that the servicemen ordered the applicants’ relatives to leave the UN peacekeepers’ compound after the Bosnian Serb forces had invaded the Srebrenica and its surrounding areas. The applicants complained that the government’s failure to investigate and prosecute constituted a violation of the applicants’ relatives’ right to life under Article 2 of the ECHR.

The Court disagreed. In relation to the investigation of the events, the Court considered the “aggregate of investigatory measures undertaken” by the government. Taken as a whole, “specific and detailed official records now exist” of the events, and it is “therefore not possible for the Court to find that the investigations were ineffective or inadequate”.

Concerning the decision not to prosecute, it was recalled that the Court to date has not faulted a prosecutorial decision, which followed an investigation that was Article 2 ECHR compliant. With no ‘institutional deficiencies’ found in the criminal justice or prosecutorial system, the decision not to prosecute did not constitute a violation of Article 2 rights.

The Court unanimously declared the application inadmissible.

Ibrahim and others v the United Kingdom

Three of the four applicants were arrested in 2005 on suspicion on having detonated bombs in London. They were questioned by the police in “safety interviews” before having access to legal advice, and were subsequently convicted of conspiracy to murder. The fourth applicant was initially interviewed as a witness to the same event. During questioning, it became apparent that he had assisted another bomber during the failed attack. He was not cautioned, and made a written statement, which led to his conviction for assisting the fourth bomber and failing to disclose information. All applicants complained that there had been a violation of their rights under Article 6 ECHR, which guarantees the right to a fair trial and the right to legal assistance. They complained that there had been a violation of their rights under Article 6 ECHR, which guarantees the right to a fair trial and the right to legal assistance.

In relation to the first three applicants, the Court found that there had been an urgent need to prevent further suicide attacks, which provided compelling reasons for temporary restrictions on their right to legal advice. The Court was also satisfied that the proceedings, viewed as a whole, had been fair. The Court held, by 15 votes to two, that there had been no violation of the applicants’ Article 6 rights.

In relation to the fourth applicant, the Court’s decision is different. There is no basis in domestic law for the police to decide not to caution him once he began to incriminate himself. He had therefore been misled as to his procedural rights. Because there was no compelling reason to restrict his access to a lawyer, it fell to the government to show that the proceedings were nonetheless fair. The UK failed to do so. The court held, by 11 votes to six, that there had been a violation of the applicant’s Article 6 rights. However, because there was no way of telling what would have happened had he been cautioned, no award was made, save for the applicant’s legal costs.

by Thomas Beamont