Aonghus Kelly is the director of Irish Rule of Law International. In our latest episode Aonghus joined Jim Duffy just before he flew to Kyiv last week – before the shelling began – to talk about his organisation and the importance of the work of individual lawyers bringing their skills and expertise to war torn countries, to help the families of victims of war crimes and miscarriages of justice seek justice.
Aonghus talks about the challenges of traversing between common law and civil law cultures in order to help post-war societies set up their own legal systems so that their citizens can seek redress in the courts, both national and international.
He emphasises that other countries have their own cultures that need to be respected, and can only be helped effectively when organisations such as his liaise with local players. Aonghus is currently in Ukraine assisting his colleagues to build mechanisms which will ensure a future reckoning for the war crimes of today.
This war didn’t start in February, he says.
It started in 2014… The reality now is that the number of criminal acts is so enormous it is now presenting problems. And how could it not – in any war… even in the richest jurisdiction in the world.
On 3 October 2019 the European Court of Human Rights dismissed an application by former NDP leader Udo Pastörs that his criminal conviction in Germany for making a “qualified Auschwitz denial” in a parliamentary speech infringed his right to freedom of speech under Article 10 ECHR. The Court held that, although interferences over statements made in parliament must be closely scrutinised, they deserve little, if any, protection if their content is at odds with the democratic values of the ECHR system.
The ‘F’ word is back in use, famines have returned. In 2017 the UN identified four situations of acute food insecurity that threatened famine or breached that threshold, in north-eastern Nigeria, Somalia, South Sudan and Yemen. In December 2018 famine was formally declared across regions of Yemen, this is likely to be the famine that will define this era. Starvation is also being used as a weapon of war in Syria and the Democratic Republic of Congo. People living in the Gaza Strip and in Venezuela also suffer from the manipulation, obstruction and politicization of food and humanitarian aid.
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 →
McLoughlin, R v  EWCA Crim 188 (18 February 2014) – read judgment
The Court of Appeal has today ruled that judges can continue to impose whole life orders in accordance with Schedule 21 of the Criminal Justice Act 2003.
On the facts of two individual cases, the Court increased the sentence of Ian McLaughlin to one of a whole life term for the murder of Graham Buck. The Court dismissed an appeal by Lee Newell against his whole life order for the murder of Subhan Anwar.
The tactics of protesters engaging in demonstrations, or acts of civil disobedience, frequently raise interesting questions of law. A demonstration by two activists opposed to the Israeli occupation of the Palestinian Territories, who entered a shop in Covent Garden which sold produce from the Dead Sea, produced on an Israeli settlement, recently resulted in the Supreme Court addressing two such questions.
First, in what circumstances can someone who trespasses on premises and disrupts the activities of the occupiers avoid prosecution by arguing that those activities were in some way unlawful?; and second (obliquely) is the construction of Israeli settlements on the West Bank an offence under English law? The short answers were (1) only when the unlawfulness is integral to the occupier’s activity; and (2) probably not.
People are going hungry in England because England, to the detriment of the poor, has forgotten its legal history.
Nearly eight hundred years ago, in 1216 English law first recognized a right to food. Yet between April and September this year over 350,000 people received three days’ emergency food from the Trussell Trust food banks, triple the numbers helped in the same period last year.
Although justifiable outrage has been expressed at this increasing hunger in 21st century England, such hunger has not been regarded as an issue of human rights law, but only of charity. The United Nations, however, has made clear that the right to adequate food is indivisibly linked to the inherent dignity of the human person and is indispensable for the fulfilment of other human rights. Continue reading →
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.
R (Khan) v Secretary Of State For Foreign & Commonwealth Affairs  EWHC 3728 (Admin) (21 December 2012) – Read judgment
In this unsuccessful application for permission to apply for judicial review, the Claimant sought to challenge the Defendant’s reported policy of permitting GCHQ employees to pass intelligence to the US for the purposes of drone strikes in Pakistan. The Claimant’s father was killed during such an attack in March 2011.
The Claimant alleged that by assisting US agents with drone strikes, GCHQ employees were at risk of becoming secondary parties to murder under the criminal law of England and Wales and of conduct ancillary to war crimes or crimes against humanity contrary to international law. The Claimant sought declaratory relief to that effect and also sought a declaration that the Defendant should publish a policy addressing the circumstances in which such intelligence could be lawfully disseminated. [paragraph 6]
The decisions by the Grand Chamber of the European Court of Human Rights in Al-Skeini and Al-Jedda, handed down last Thursday, have generally been hailed as leap forward for human rights protection. We have already provided a summary of the decisions and pointed to some of the commentary here.
However, it is worth considering the core parts of these rulings a little more carefully. Without wishing to put too much of a dampener on the initial excitement from human rights campaigners about the outcome, the Court’s reasoning is perhaps not quite the radical breakthrough it first appeared to be. In fact, as Judge Bonello pointed out in his concurring opinion (which has drawn a lot of attention for his comments about ‘human rights imperialism’), the principles governing jurisdiction under Article 1 of the ECHR are not that much clearer following these decisions.
Updated | The legal blogs have been busy reporting on this morning’s important decisions of the Grand Chamber of the European Court of Human Rights in Al-Skeini and Al-Jedda – see my post.
There has been coverage already from PHD Studies in Human Rights, the Human Rights in Ireland Blog (update – see also EJIL: Talk: “Let me put this as strongly as I can: this is as close as we’ve ever come to the European Court overruling Bankovic. And good riddance – except, as we will see, the Court’s disavowal of Bankovic is only half-hearted at best.”). The Guardian has also published an article on the case in which Phil Shiner of Public Interest Lawyers claims that the decisions will reopen the case for a wider public inquiry into alleged detainee mistreatment in Iraq; the firm recently failed in a judicial review of a decision not to hold a public inquiry on behalf of 127 Iraqis.
Many thanks to Antoine Buyse of the ECHR Blog for highlighting the lyrical and eminently quotable concurring opinion of Maltese Judge Giovanni Bonello, who since writing the judgment has retired from the court. Bonello said that he would have applied a slightly different “functional jurisdiction” test to decide whether the applicants fell within the jurisdiction of the United Kingdom.
The Grand Chamber of the European Court of Human Rights has ruled that from 1 May 2003 to 28 June 2004 the UK had jurisdiction under Article 1 (obligation to respect human rights) of the European Convention on Human Rights in respect of civilians killed during security operations carried out by UK soldiers in Basrah.
The court went on to find in Al-Skeini that there had been a failure to conduct an independent and effective investigation into the deaths of the relatives of five of the six applicants, in violation of Article 2 (right to life) of the Convention. The court awarded 17,000 euros to five of the six applicants, in addition to 50,000 euros in costs jointly.
In Al-Jedda, the court found a violation of Article 5 (1) (right to liberty and security) of the European Convention in relation to the internment of an Iraqi for more than three years (2004- 2007) in a detention centre in Basrah.
Updated | A new bill which seeks to reform the powers of the police also seeks to make it harder to issue private arrest warrants for universal jurisdiction offences, such as war crimes, torture and hostage taking,
The controversial change would mean that they can only be issued where there is a reasonable prospect of a successful prosecution (see our previous post).
The European Court of Human Rights has declared that a decision in the cases of two Iraqi murder suspects in UK custody in Iraq is now final and will not be reconsidered. The court has effectively prohibited the death penalty under the European Convention on Human Rights, despite Article 2 (the right to life) appearing to expressly allow it.
The judgment is an important restatement of the prohibition against the death penalty which has been agreed to by all Council of Europe states. However, the reasoning of the court in prohibiting it under the European Convention, founded on the men’s “mental suffering caused by the fear of execution amounting to inhuman treatment”, rather than a prohibition against states carrying out the death penalty itself, may generate difficulties in future cases relating to inhuman and degrading treatment.
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