Al-Skeini v United Kingdom (2011) 53 EHRR 18.

• Author: Collins, Pauline

I Introduction

Al-Skeini v United Kingdom (1) concerned the treatment of Iraqi civilians and detainees by UK soldiers during the occupation phase of the Iraq conflict. The case highlights the impact of human rights law, in particular the Convention for the Protection of Human Rights and Fundamental Freedoms (2) ('ECHR') and Human Rights Act 1998 (UK) (3) ('Human Rights Act'), on the military. The shooting of Iraqi civilians in five of the six matters before the Court was held by three tiers of the UK civil courts to be outside the ECHR's jurisdiction and therefore did not fall under the obligations of the UK in Iraq in relation to actions by its soldiers. The UK courts adopted this approach after interpreting and following the Grand Chamber of the European Court of Human Rights decision in Bankovic v Belgium. (4)

On this basis the House of Lords denied the remedy sought by the families of the Iraqi civilians shot by UK soldiers in the occupation zone. It suggested that the appropriate law was the military discipline law and international humanitarian law. Yet, of the five matters considered in R (Al-Skeini) v Secretary of State fix Defence, (5) only the sixth matter led to a court-martial heating. The other five matters had been considered by the commanding officer, who held the ultimate power to decide to take action. In each of these matters the commanding officer decided not to court-martial any of the soldiers involved. (6)

Only in regard to the sixth matter, the death of Baha Mousa while detained by UK soldiers on a UK army base in Iraq, was a court-martial hearing held. (7) No convictions were made, although a guilty plea was entered. A very limited application of the ECHR was accepted in relation to this one matter as it occurred on a UK military base and was accordingly found to fall within UK jurisdiction for the purposes of the Haman Rights Act. As such, an independent public investigation was required pursuant to art 2 of the ECHR. This decision meant that the government was required to hold an inquiry regarding the incident. (8) Six Iraqi nationals (the 'applicants') (9) lodged an application on 11 December 2007 under art 34 of the ECHR against the UK in the Grand Chamber of the European Court of Human Rights. (10) It was accepted that Iraq was under occupation from 1 May 2003 to 28 June 2004 by the UK and the US as a result of major combat operations that had taken place between 20 March and 1 May 2003. The deaths of all of the applicants' relatives had occurred during the occupation phase at various locations within Iraq.

II The Decision

On 7 July 2011, the European Court of Human Rights handed down a unanimous decision of 18 judges (11) in Al-Skeini, (12) which has been described as 'the case of the century'. (13) Deciding on the contentious issue of the meaning of the term 'jurisdiction' within art 1 of the ECHR when it comes to extraterritorial application of the ECHR, the Court deliberated in private for longer than most cases on 9 and 16 June 2010 and 15 June 2011. The Court decided that the applicants, all relatives of the deceased Iraqi citizens, fell within the jurisdiction of the respondent state, the UK. The Court further held that the procedural obligation in ECHR art 2 requiring an 'adequate and effective investigation' into an individual's death had not occurred. In relation to the sixth applicant's (Baha Mousa's) death, it was accepted that a public inquiry (14) had been held in the UK that had satisfied the art 2 obligation. Compensation was awarded to each of the first five applicants to the full amount claimed in order, to acknowledge the distress caused by the failure to fully and independently investigate the deaths of their relatives. (15)

In reaching its decision on the facts, the Grand Chamber noted that the Coalitional Provisional Authority ('CPA') was created by the US and the UK and was temporarily to exercise powers of government, in particular by providing security and maintaining civil law and order.16 Regulation No 1 of 16 May 2003, the first legislative act of the CPA, stated that the CPA held responsibility to 'exercise powers of government temporarily in order to provide for the effective administration of Iraq during the period of transitional administration, to restore conditions of security and stability'. (17)

Specific duties given to the UK within the Basra region of southern Iraq were to conduct patrols, arrests and antiterrorist operations, protect the community and infrastructure, and ensure civil demonstrations did not get out of hand. (18) Based on these considerations, the Court determined that the UK exercised in Iraq 'some of the public powers normally to be exercised by a sovereign government'. (19) As such:

the United Kingdom, through its soldiers engaged in security operations in Basran during the period in question, exercised authority and control over individuals killed in the course of such security operations, so as to establish a jurisdictional link between the deceased and the United Kingdom for the purposes of Article 1 of the Convention. (20) III The Parties' Arguments

A The UK Government's Arguments

The UK Government put forward a number of arguments, none of which were accepted by the European Court of Human Rights Grand Chamber. The UK Government raised for the first time an argument not put in the domestic jurisdiction, namely that the UK troops were acting as part of the Multi-National Force on the international authority of the binding decision of the United Nations Security Council. (21) The Grand Chamber dismissed this argument, holding that the UK Government was estopped from arguing before the Grand Chamber a position that had not first been put to the national courts. Grounding such an opinion in principles of procedural fairness, the Grand Chamber held that it was important to give these courts an opportunity to respond as they are 'in direct and continuous contact with the forces of their countries'. (22)

The Grand Chamber was of the view that the hurdle 'jurisdiction' question was so closely entwined with the merits that it joined consideration of both aspects. (23) A minor point based on attribution and non-exhaustion of domestic remedies was raised by the Government in relation to the fifth applicant's matter, but that was rejected by the Court. The fifth applicant's matter was not considered in the UK court hearings of Al-Skeini. (24) Ahmed Jabbar Kareem Ali was a 15-year-old whose body had been found floating in the river Shatt Al-Arab after being taken there by UK soldiers. The judicial review of his matter had been stayed pending the outcome of the other matters. (25)

On the merits the Government argued that Bankovic v Belgium (26) definitively established the law on the extent of jurisdiction under art 1 of the ECTIR and that this 'was "primarily" or "essentially" territorial and any extension of jurisdiction outside the territory of the Contracting State was "exceptional" and required "special justification in the particular circumstances of each case". (27) Of considerable significance also was that the Bankovic: Court had held the ECHR rights could not be 'divided and tailored'. (28)

The exceptions the Government argued as accepted in Bankovic included the Effective Control of an Area ('ECA) exception outlined in the northern Cyprus case law, (29) where the ECA, applied extraterritorially as a consequence of military action. In cyprus v Turkey, (30) the Court had said 'contracting states are bound to secure the rights and freedoms under the Convention to all persons under their actual authority and responsibility, whether that authority is exercised within their own territory or abroad'. (31) The Government believed two considerations limited the ECA exception. First, where such jurisdiction arose, then the state exercising ECA was required to secure the entire range of substantive EON rights in the territory under control, notwithstanding contrary statements in the subsequent Chamber judgment of Ism v Turkey. (32) Second, ECA only applied within the ECHR legal space.

The Government argued that ECA jurisdictional exceptions had only been applied by the Court in the areas of Cyprus and Transdniestria, both of which fell within the territory of another contracting state. It was argued that '[a]ny other approach would risk requiring the State to impose culturally alien standards, in breach of the principle of sovereign self-determination'. (33) Based on the above understanding of the case law, it was considered that Iraq was outside the ECIIR legal space, and therefore the ECA exceptional basis of jurisdiction did not apply. As a second limb to this argument, it was contended that, in any event, the UK did not factually have effective control in Iraq due to the difficult circumstances prevailing, a position supported by the domestic courts' conclusions. (34)

The Government also argued it did not have occupying power status as it 'did not have sovereignty over Iraq and was not entitled to treat the area under its occupation as its own territory or as a colony subject...