This blog post is by James Beeton of 12 King’s Bench Walk.
This important case considered in detail a number of issues arising under the European Convention on Human Rights (“ECHR”): the scope of the Convention’s extra-territorial effect, investigative obligations under articles 3 and 5, and the impact of the UN Convention Against Torture (“UNCAT”) on investigative obligations under articles 2 and 3. The first part of this article will provide a brief outline of the facts and issues along with a commentary on the judgment; the second will consider the Court of Appeal’s approach to the specific issues in greater detail.
Facts and Issues in Outline
The Court of Appeal considered a number of issues in group actions arising from British military involvement in Iraq between 2003 and 2009. The first group brought claims for judicial review seeking orders requiring the Secretary of State for Defence to investigate alleged human rights violations. A second group of pending claims sought compensation for the alleged breaches from the Ministry of Defence. The issues were:
- What was the scope of application of the ECHR?
- To what extent was there an investigative obligation in respect of ‘handover’ cases within article 3 ECHR (freedom from torture)?
- To what extent was there an investigative obligation in respect of cases within article 5 ECHR (freedom from arbitrary detention)?
- What impact, if any, did the UK’s obligations under the UNCAT have on its investigative duties under articles 2 and 3 of the ECHR?
Lloyd Jones LJ’s judgment provides a thorough analysis of the difficulties caused by Strasbourg’s current approach to extra-territorial jurisdiction under the ECHR. Questioning whether the decision in Al-Skeini v United Kingdom (2011) 53 EHRR 18 would in due course come to be considered a ‘false step in the development of the law’, he noted in strong terms that ‘the combined effect of the exceptional cases of extra-territorial jurisdiction accepted by the Grand Chamber in Al-Skeini represents a potentially massive expansion of the scope of application of the Convention, the full implications of which remain to be worked out.’ One clear result was that it was now ‘inevitable’ that any major foreign intervention would result in a flood of claims before the courts.
Lloyd Jones LJ also echoed Leggatt J’s concern at first instance that the decision failed sufficiently to engage with the strong policy reasons for seeking to limit the Convention’s impingement on military operations and decisions in the field. At heart, this is a return to the familiar and fundamental question of whether international armed conflict is an area to which human rights law is suited at all. It is important to note in this respect that the relationship between the ECHR and international humanitarian law – the system of rules which has traditionally governed the treatment of prisoners and enemy combatants during international armed conflicts – remains an uneasy one. Seeking to strike a pragmatic ‘accommodation’ between the two regimes on a case by case basis (as Lloyd Jones LJ suggested would have to be the case) does little for the cause of legal certainty.
On the other hand, perhaps that is a sacrifice worth making and parties to the Convention should not be shying away from an expansive approach to jurisdiction which maximizes the scope of the rights and freedoms contained therein. That is arguably what is demanded by the wording of the Convention’s Preamble, which expressly describes the project’s aim as ‘securing the universal and effective recognition and observance’ of the Convention rights. Such a line of thought also seems to underlie Strasbourg’s extension of the doctrine of extra-territorial jurisdiction far beyond the Convention’s regional “espace juridique”.
By way of final comment, it is worth considering some of the questions that arise with respect to Lloyd Jones LJ’s approach to the “state agent authority and control” test (set out in detail below). He already noted the need for difficult distinctions to be drawn in cases arguably falling within the “use of force by state agents” exception. But another question, which he did not address so straightforwardly, is to what extent prior control must be exercised for the “public powers” exception to apply. Clearly, it would seem, less than in the “use of force by state agents” exception, since some of the cases considered above were held to fall into the former but not necessarily the latter category. But it is also clear that at least some degree of factual control is necessary – that is why a claim by those killed in a US combat operation with only logistical support and planning by the UK failed. Elsewhere in the judgment we are reminded that the “public powers” exception ‘is founded on the exercise by State agents of authority and control over an individual’.
These difficult questions will no doubt be considered in further cases over the coming years. Those decisions will determine whether or not the Al-Skeini decision was indeed a ‘false step’.
The following sections of this article consider in detail the Court’s approach to the interesting issues raised by this case.
Issue 1: Scope of the ECHR
The first issue concerned the interpretation of article 1 ECHR, which provides that the Contracting States shall secure to everyone ‘within their jurisdiction’ the rights and freedoms guaranteed by the Convention. The meaning of this provision has been the subject of a number of conflicting decisions by the Strasbourg Court.
In Soering v United Kingdom (1989) 11 EHRR 439 the Court considered that article 1 simply ‘sets a limit, notably territorial, on the reach of the Convention.’
In Bankovic & Others v Belgium & Others (2001) 44 EHRR SE5, the Court, whilst affirming that statement of principle in Soering, went on to say that while ‘the jurisdictional competence of a state is primarily territorial’, other ‘exceptional’ bases of jurisdiction could in fact arise.
This, it said, could happen in circumstances where a state ‘through the effective control of the relevant territory and its inhabitants abroad … exercises all or some of the public powers normally to be exercised by that [foreign] government.’ That situation might arise in a situation of military occupation, or through foreign administration at the invitation of the state in question.
The issue of jurisdiction arose on a number of occasions in the years following Bankovic, before a Grand Chamber of the Court attempted to revisit the issue conclusively in Al-Skeini. The Court considered that extra-territorial jurisdiction could arise in three exceptional categories of case:
- “State agent authority and control”: This category included –
(a) Acts of diplomatic and consular agents in a foreign territory exerting authority and control over others.
(b) Exercises of public powers which would normally be exercised by the foreign government.
(c) Uses of force in foreign territory by state agents bringing an individual under the state’s power or control. Examples from previous decisions included forcibly taking individuals into custody onboard an aircraft (Öcalan v Turkey (2005) 421 EHRR 45), in a cave (indicated in Issa v Turkey (2005) 421 EHRR 27), in military prisons (Al-Saadoon v United Kingdom (2009) 49 EHRR SE11), or onboard a boat (Medvedyev v France (2010) 51 EHRR 39).
- “Effective control over an area”:
(a) In determining the issue of effective control, the Court will have regard to the strength of the state’s military presence in the area, along with the extent to which its military, economic and political support for the local subordinate administration provides it with influence and control over the region.
(b) Where factual domination of territory can be established, ‘it is not necessary to determine whether the Contracting State also exercises detailed control over the policies and actions of the subordinate local administration’.
(c) Importantly, the controlling state must have a sufficient degree of control over the area in question to enable it to secure the full range of ECHR rights to its occupants. This limitation is to be contrasted with the “state agent authority and control” exception, according to which the extent of the state’s obligation to secure an individual’s Convention rights may vary depending upon the nature and degree of control exercised in a particular case.
- “Espace juridique”:
(a) In Al-Skeini, the Court commented that where territory in one Convention State is occupied by another, the occupying state should be held accountable for human rights violations within the occupied territory. This would prevent a gap in protection from arising within the Convention’s regional legal sphere.
(b) Lloyd Jones LJ regarded the Court’s comments on the Convention “espace juridique” as constituting a separate basis for extra-territorial jurisdiction. In principle this seems correct; but whether this category will in practice add anything to the other two exceptional bases for jurisdiction is less obvious.
(c) In any event, Lloyd Jones LJ was clear that the principle could have no application to the instant case given that Iraq was not a Convention State.
Uses of Force by State Agents
In Al-Saadoon, it was accepted by both sides that the UK had not been in effective control of the relevant area during its period of military occupation. The Claimants therefore relied on the “state agent authority and control” exception to establish the extra-territorial effect of the ECHR.
A key issue was that Leggatt J at first instance had found that jurisdiction on this basis could be established whenever a state’s agents used physical force against an individual – for example, in cases of individuals shot by members of armed patrols without any prior element of custody or control.
Lloyd Jones LJ considered that this went too far: ‘the intention of the Strasbourg court was to require that there be an element of control of the individual prior to the use of lethal force.’ He acknowledged that it might be difficult in practice to draw sensible distinctions between differing types or degrees of power and control so as to engage or disengage article 1 ECHR – but that difficulty was an inevitable consequence of Al-Skeini’s statement of principle. It is therefore particularly instructive to consider how Lloyd Jones LJ applied the test in the cases before him.
- The first Claimant was a man who was shot through his car window by a British solider. He was then pulled from the vehicle and had his head beaten against the pavement. He was not under the state’s control at the time of shooting, but he might have been after he was pulled from the vehicle: a further investigation of the precise facts was required. In any event, this case fell within the “public powers” exception since the British soldier in question had carried out the actions complained of while policing the supply of rationed fuel to civilians – a role which would normally be exercised by the Iraqi police.
- A man who was killed after his car was shot at by British soldiers as he approached their position at a crossroads did not fall within the exception as there was no element of prior control. However, his case also fell within the “public powers” exception, since the British soldiers had been exercising police or military powers at the time of the shooting.
- Men who were shot and killed in a raids on their homes might, with further investigation of the facts, have been under the state’s control. Their cases again fell within the “public powers” exception, since the raids constituted exercises of police or military powers.
- A man who was killed by shots from a tank after he ran into cover was not within the state’s control. However, his case fell within the “public powers” exception for the same reason as the crossroads case.
- Two individuals who were last seen being taken to British military hospitals were at that stage within the state’s control. The ‘benign’ purpose of the control in treating their injuries was irrelevant.
- The UK’s involvement in the planning and provision of logistical support for a combat operation carried out exclusively by US forces did not involve a sufficient degree of authority or control over the individuals concerned to bring their cases within either exception.
- British troops were not exercising authority and control of individuals simply by driving along a road, so that a man who was accidentally run down by a British Army truck did not fall within either exception.
- Two individuals who had been taken into British custody before being transferred to the control of the US forces were no longer within the UK’s control – the UK no longer had any power to decide whether they should remain in custody, nor how they were to be treated while in custody. The “state agent authority and control” exception depended on the fact of physical power and control over the individual: that control rested with the US alone.
Issue 2: Investigative Obligations under Article 3 ECHR
Article 3 imposes three types of duty on the state:
- A negative duty not to subject anyone within its jurisdiction to torture or inhuman or degrading treatment.
- A positive obligation to take steps to protect an individual within its jurisdiction who is exposed to a real and imminent risk of serious harm of which the state authorities are aware.
- An obligation not to send an individual to another state where there are substantial grounds for believing that he would face a real risk of being subjected to torture or other prohibited treatment.
The issue was whether, and if so in what circumstances, an investigative obligation may arise in the third category of cases.
Lloyd Jones LJ agreed with the judge that the authorities did not establish an investigative obligation in all handover cases where there was an arguable breach of the individual’s article 3 rights. Further, it was not necessary to impose an ancillary investigative obligation in all such cases in order to make article 3 effective.
However, an investigative obligation would arise where (i) the individual was handed over by one state to another in order to be tortured or mistreated by the second state under the direction or at the instigation of the first state, or (ii) the first state had a sufficient level of involvement in any subsequent torture or mistreatment by the second state to amount to complicity in such treatment.
In the two test cases before the Court of Appeal, the Claimants’ allegations of mistreatment by British forces whilst in their custody might have required investigation under article 3. However, once the individuals in question had been handed over to US forces there was no factual basis for an arguable claim of complicity by British forces in any subsequent mistreatment, such that no investigative obligation arose.
Issue 3: Investigative Obligations under Article 5 ECHR
The Claimants initially argued that there was a duty to investigate all cases of detention which were arguably in violation of article 5 ECHR. This had been rejected by the Leggatt J (a decision not challenged on appeal) on the basis that the provision for proceedings to challenge the lawfulness of detention in article 5(4) and the enforceable right to compensation for unlawful detention in article 5(5) would normally be sufficient protection for the article 5 right.
In the alternative, the Claimants argued that such an investigative obligation arose in all cases where detention took place beyond the reach of the courts. It was common ground that a duty to investigate would arise in so-called “enforced disappearance” cases – those cases where the state in question refused to acknowledge the detention of the person detained where there was an arguable claim that they had been taken into state custody and not been seen since.
However, Lloyd Jones LJ rejected the argument that any further investigative obligation had been established in circumstances where a person had been detained in the absence of judicial scrutiny or control. Enforced disappearance cases gave rise to an investigative obligation because, where agents of the state had arguably assumed control over an individual, it would be incumbent on the authorities to account for his whereabouts. In other cases, the procedures under article 5(4) and 5(5) would provide a suitable protection to the individual affected.
Status of International Humanitarian Law
A further point of interest was that the Secretary of State had argued that article 5 ECHR was displaced or modified by the less stringent provisions of international humanitarian law which apply during international armed conflicts.
Lloyd Jones LJ agreed that article 5 was affected in this way: in a situation of international armed conflict, both article 5 ECHR and the provisions of international humanitarian law would co-exist and would both apply to issues of detention. It was necessary to ‘effect an accommodation’ between the two very different regimes. The practical effect was that in such circumstances a system of judicial control over detention would not always be required.
On the basis of the above findings, Lloyd Jones LJ found that an investigative obligation arose in none of the cases relating to detention.
Issue 4: Effect of UN Convention Against Torture
The Claimants had argued that (i) the UNCAT gave rise to domestically enforceable legal rights and (ii) those rights grounded an investigative obligation extending beyond the scope of any investigative obligation under article 3 ECHR alone.
Those submissions were rejected by both Leggatt J and Lloyd Jones LJ, who refused permission to appeal against the judge’s findings. As a matter of law, the terms of the UNCAT had not been implemented into the domestic law of the UK by Parliament. The Claimants’ reliance on the principle of legality was misconceived. In any event, article 12 of the UNCAT did not impose a broader duty of investigation than article 3 ECHR – if anything, the test under the UNCAT was more stringent than under the latter.