Warfare

• Pages: 23-26

23

international law update Volume 18, January–March 2012

© 2012 Transnational Law Associates, LLC. All rights reserved. ISSN 1089-5450, ISSN 1943-1287 (on-line) | www.internationallawupdate.com

the state is not immune from the processes of

execution.” [290-91].

: NML Capital, Ltd. v. Republic of

Argentina, [2011] U.K.S.C. 21.

WARFARE

I      

     

U K   I

,  G C  

E C  H R 

 U K ’

    

    

   

[e following is based on the ocial headings

of the complex proceedings before a 17 judge Grand

Chamber of the European Court of Human Rights

in Strasbourg. e Applicants were the relatives of

Iraqi citizens who had been killed in Iraq in the

period following the invasion of the country by the

United Kingdom (UK), the United States (US) and

their coalition partners on March 20, 2003, and

prior to the passing of authority to the Interim Iraqi

Government on May 28, 2004.]

British soldiers had shot and killed the relatives

of Applicants 1, 2, and 4. Applicant 3’s wife had

been killed during exchanges of re between British

soldiers and insurgents; it is impossible to determine

who had red the lethal shot. Applicant 5 alleged

that British troops had arrested his son and had

then forced him into a river where he had drowned.

British troops had arrested and detained Applicant

6’s son and he had later died in custody from

unspecied or unknown causes.

A summary investigation into the deaths of the

relatives of Applicants 1-3 decided that the deaths

had fallen within the Rules of Engagement. As to

the death of Applicant 4’s brother, an inquiry ruled

that the troops’ use of force had fallen within the

Rules of Engagement. and that no prosecution was

justied. As to Applicant 5’s son, an investigation did

lead to the prosecution of 4 soldiers, but a “collapse”

of the prosecution’s case led to their acquittals.

Applicants 5 and 6 later brought civil claims

against the UK Ministry of Defence. As a result, the

Ministry paid them a substantial sum and issued a

formal apology. As regards the death of Applicant

6’s son, an investigation did take place. Applicant

6 then brought a civil claim, as a result of which

the government paid him a substantial sum by

way of compensation and issued a formal apology.

Applicants 1-4 and 6 were parties to proceedings

before the UK courts which challenged the refusals

by the Secretary of State to conduct independent

investigations into the deaths of their relatives.

On June 13, 2007, the House of Lords concluded

that the UK had no had jurisdiction under Article

1 of the European Convention for the Protection of

Human Rights and Fundamental Freedom, Nov.4,

1950; Europe T.S. No.5; 213 U.N.T.S, 221, over

the relatives of Applicants 1-4 at the relevant times,

so that there was no obligation to investigate.

e UK Government conceded during the

proceedings that it had had jurisdiction over

Applicant 6’s son. In May 2008, the Secretary of

State for Defence announced a public inquiry into

the death of his son, although the inquiry had still to

deliver its report. Relying on Article.2 [See Note 1],

all six Applicants complained of the failure to carry

out a full and independent investigation into the

circumstances of the deaths of their relatives. ey

claimed just satisfaction under Article 41. …

Right to life as provided under Convention

Article 2

H6 “(a) Under art. 1, the exercise of

‘jurisdiction’ was a necessary condition for a state to

be held responsible for acts or omissions imputable

to it which gave rise to an alleged infringement

of Convention rights. As a state’s jurisdictional

competence under art. 1 was primarily territorial,

it was only in exceptional cases that acts of the

contracting states performed, or producing eects,

outside their territories could constitute an exercise

of jurisdiction for the purposes of art. 1.”

H7 “(b) Such exceptional circumstances had

been found to exist where the acts of the state

authorities produced eects outside the state’s own

territory. In particular, the acts of diplomatic and

consular agents present on foreign territory could

amount to an exercise of jurisdiction when these

agents exerted authority and control over others.”

“Further, the exercise of extra-territorial

jurisdiction by a contracting state had been