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.
Al-Saadoon & Ors v Secretary of State for Defence  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.
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. Continue reading →
Hassan v. the United Kingdom (application no. 29750/09) ECHR 936 (16 September 2014) – read judgment
This case concerned the capture of an Iraqi national, Tarek Hassan, by the British armed forces and his detention at Camp Bucca in southeastern Iraq during the hostilities in 2003. The complaint was brought by his brother, who claimed that Tarek had been under the control of British forces, and that his dead body was subsequently found bearing marks of torture and execution. In essence, the case raised issues concerning the acts of British armed forces in Iraq, extra-territorial jurisdiction and the application of the European Convention of Human Rights in the context of an international armed conflict. This was the first case in which a contracting State had requested the Court to disapply its obligations under Article 5 or in some other way to interpret them in the light of powers of detention available to it under international humanitarian law, which allows the internment of prisoners of war at times of international conflict.
The Grand Chamber held that although Tarek Hassan had been within the jurisdiction of the United Kingdom between the time of his arrest by British troops until the moment of his release; there had been no violation of Article 5(1), (2), (3) or (4) (right to liberty and security) of the European Convention on Human Rights as concerned his actual capture and detention. The European Convention had to be interpreted in parallel with international instruments which applied in time of war. Four out of the seventeen judges dissented on this point. Continue reading →
Fulmen & Mahmoudian v. Council of the European Union,28 November 2013, read judgment
I posted last year on a decision by the General Court in Luxembourg, in which Fulmen successfully challenged sanctions taken against it as part of EU policy to apply pressure on Iran to end nuclear proliferation.
Fulmen was said to have supplied electrical equipment on the Qom/Fordoo nuclear site and Mr Mahmoudian was said to be a director of Fulmen. Hence all of their assets were frozen by the EU.
The CJEU has now roundly dismissed the appeal by the EU Council from the ruling of the General Court. The sanctions order has been annulled – over 3 years after it was made. The Council has been told that if it wants to uphold such orders, it must adduce evidence to the Court, however sensitive the subject matter, and even if not all of that evidence is passed on to those affected.
Mousa & Ors, R (on the application of) v Secretary of State for Defence  EWHC 1412 (Admin) (24 May 2013) – Read judgment
Remember the Iraq War? Following the 2003 invasion Britain remained in control of Basra, a city in South Eastern Iraq, until withdrawal over six years later on 30 April 2009. 179 British troops died during that period. But despite there over four years having passed since withdrawal, the fallout from the war and occupation is still being resolved by the UK Government and courts.
Thousands of Iraqis died in the hostilities or were detained by the British. Thanks to two decisions of the European Court of Human Rights in July 2011 (Al-Skeini and Al-Jedda – our coverage here), the state’s duty under the Human Rights Act to investigate deaths and extreme mistreatment applied in Iraq at that time. It is fascinating to see how the UK authorities have been unravelling the extent of that duty. The Baha Mousa Public Inquiry has reported and the Al-Sweady Public Inquiry is ongoing (I acted in the former and still do in the latter). In this major judgment, which may yet be appealed, the High Court has ruled the manner in which the UK Government is investigating deaths and perhaps mistreatment is insufficient to satisfy its investigative duty.
The recent standoff between two leading judicial lights, Jonathan Sumption and Stephen Sedley, may make for entertaining reading, but don’t be fooled.
Like the heated question of whether a non-entrenchment clause could be dug into our law to protect UK parliamentary sovereignty, this one wasn’t about law, or even constitutional theory; it was essentially about differing ideological positions vis a vis judicial power.
Joshua Rozenberg welcomes Sumption’s latest speech as indicative of his supportive stance on judicial activism, particularly in the foreign policy sphere. I don’t agree. In his FA Mann Lecture last November Sumption pinned his colours to the mast on judicial activism in general, and this latest fascinating survey of foreign policy case law illustrating the retreat of judicial deference must be read in that light. Continue reading →
HM (Iraq) v The secretary of state for the home department  EWCA Civ 1322 – Read judgment
The Court of Appeal has overruled the Asylum and Immigration Tribunal’s decision to deport a 25-year-old Iraqi citizen who had lived in the UK since he was 12 and had recently been sent to prison for drug dealing, on the basis that it did not think carefully enough about his human rights to private and family life.
The decision – which is unusually concise and easy to follow – highlights the careful balancing exercise which an asylum and immigration tribunal must undertake in order to weigh up whether a person’s human rights to private and family life outweigh the public good of sending them back to their home country. In this case, although HM won his appeal, his case must now be reheard – for a third time – by an asylum tribunal.
In a long-awaited decision on country guidance on Iraq, the Upper Tribunal (Immigration and Asylum Chamber) has held that the degree of indiscriminate violence in Iraq is not so high that the appellants were entitled to subsidiary protection under Article 15(c) Qualification Directive.
However, the IAT indicated that, should the degree of violence become unacceptably high, Article 15(c) might be engaged. The Upper Tribunal also used the opportunity to provide general advice as to how to approach country guidance cases.
Al Rawi & Ors v Security Service & Ors  EWCA Civ 482 (04 May 2010) – Read judgment
The Court of Appeal has roundly rejected a request by the Government that evidence in a high-profile torture compensation claim should be kept secret from the public. It has also used the opportunity to emphasise that the interests of open justice would be serious compromised if this kind of request were ever granted in a civil case, even in very limited circumstances.
This compensation claim involves six claimants who were detained at various locations, including Guantanamo Bay and Bagram in Afghanistan, alleging various forms of mistreatment.
The judgment is the latest in a series of reverses suffered by the Government in matters involving Binyam Mohamed and others in relation to their alleged torture. In February the Court of Appeal ordered it to release an unredacted version of an email relating to the “cruel, inhuman and degrading” treatment which Binyam Mohamed received during questioning by American authorities.
In the latest judgment, the Court of Appeal rejected the previous judgment of Mr Justice Silber in the High Court. The issue was whether the judge was right to conclude that it is open to a court, in the absence of statutory authority, to order a closed material procedure for part (or, conceivably, even the whole) of the trial of a civil claim for damages in tort and breach of statutory duty.
The appeal judges concluded that it was not open for a court to order a closed material procedure, stating that:
Sir William Gage, the Chairman of the Baha Mousa Public Inquiry, has refused an application by participants in the Inquiry to compel the Ministry of Defence (MoD) to disclose advice produced by the former Attorney General, Lord Goldsmith.
The MoD claimed legal professional privilege in respect of the Attorney-General’s Advice of 2003 on the application of the European Convention of Human Rights (ECHR) to the British Army’s operations in Iraq during the Iraq war.
The Inquiry, which has been ongoing since July 2009, aims to investigate and report on the circumstances surrounding the death of Baha Mousa by the British Army and the treatment of those detained with him, in particular where responsibility lay for approving the practice of conditioning detainees by any members of the 1st Battalion, The Queen’s Lancashire Regiment in Iraq in 2003.
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