Human rights obligations can travel: The extraterritoriality of human rights and the Iraq War

Al-Jedda v United Kingdom [2011] ECHR 1092 (7 July 2011) Al-Skeini & Ors v United Kingdom [2011] ECHR 1093 (7 July 2011)

Summary

The European Court of Human Rights (the Court) recently decided two applications brought against the United Kingdom under Article 34 the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention).

In both cases, the Court considered whether the conduct fell within the jurisdiction of the UK as a preliminary question. However, the preliminary analysis led the Court to conduct an examination on the merits because the question of whether the acts of British troops were pursuant to the jurisdiction of the UK was so closely linked with the merits of each case. In both cases, the Court noted that whether the UK was exercising jurisdiction extra-territorially must be determined by reference to the particular facts of the case. In both cases, the Court unanimously held that the conduct fell within the jurisdiction of the UK.

Facts

The Case of Al-Skeini and Others v The United Kingdom concerned an application by six Iraqi nationals who alleged that their relatives fell within the jurisdiction of the UK when they were killed by British troops carrying out security operations. The applicants alleged and there had been no effective investigation into their relatives' deaths, in breach of Article 2 of the Convention.

The Case of Al‑Jedda v The United Kingdom concerned an application by Mr Al‑Jedda who alleged that he was detained by British troops in Iraq in breach of Article 5(1) of the Convention. Mr Al‑Jedda was detained between 10 October 2004 and 30 December 2007 because the British authorities believed that he had been recruiting terrorists outside Iraq and had engaged in other activities with a view to committing acts of terrorism in Iraq. Mr Al‑Jedda's detention was said to be necessary for the maintenance of security in Iraq.

Decision

In relation to the application in Al-Skeini the Government argued that the starting point for considering jurisdiction is the principle that jurisdiction primarily relates to territory and only exceptional circumstances would lead to the extension of jurisdiction outside the territory of a contracting state. One of the exceptions to territorial-based jurisdiction is where a state has “effective control” of an area outside of its territory. The Government argued that Iraq fell outside of the Convention legal space, in that it was not territory covered by the Council of Europe Member States, and that this exceptional basis could not apply. The Government argued in the alternative that it did not have effective control over any part of Iraq.

The Court rejected that obligations can never exist outside the Convention legal space and noted that it had never applied such a restriction. The Court held that, in the circumstances, there was a jurisdictional link between the deceased and the UK for the purposes of Article 1. Following the removal of the Ba'ath regime, the UK (together with the US) assumed the exercise of all or some of the public powers normally exercised by a sovereign government in Iraq until the interim government was appointed. The UK assumed responsibility for the security of South East Iraq and in these circumstances, the UK exercised authority and control over the individuals killed during its security operations.

In relation to Mr Al-Jedda, the Government argued that Mr Al‑Jedda's detention was attributable to the United Nations and not the United Kingdom. (We note that the Government also sought to raise this argument in Al-Skeini but was estopped from doing so on the basis that it had not raised this argument before the national court.) The basis of this argument was found in the text of Article 1 of the Convention, which provides that an act of an organ or a state or agent of an international organisation that is at the disposal of another international organisation shall be considered the act of the latter organisation if that organisation exercises effective control over that conduct. The Government argued in the alternative that the act of detaining Mr Al‑Jedda was carried out pursuant to United Nations Security Council Resolution 1546. The Government argued that this Resolution created an obligation to detain the applicant because it recognised the international support for the restoration of security and stability as essential for the people of Iraq. The Government further argued that this obligation overrode obligations under the Convention because of the operation of Articles 25 and 103 of the UN Charter. Article 25 requires states to accept and carry out the decisions of the UNSC and Article 103 provides that Charter obligations override other international obligations.

Mr Al-Jedda argued that that UNSC Resolution 1546, while giving the power to the UK to detain him, did not require the UK to do so in violation of Article 5 of the Convention. The Resolution provided the authority to take measures to provide security and stability in Iraq but did not require the UK to take action incompatible with its human rights obligations. The UK had a discretion as to how it would contribute to security. Mr Al-Jedda further argued that as respect for human rights was one of the paramount principles of the UN Charter and if the UNSC had intended to oblige the UK to act in breach its international human rights obligations, it would have used clear and unequivocal language to do so.

The Court distinguished Mr Al-Jedda's application from the decisions in Behrami v France and Saramat v France, Germany and Norway, noting that the role of the UN in relation to the security in Iraq in 2004 was vastly different to that it had played in Kosovo in 1999. The Court emphasised that the international security presence in Kosovo was established by UNSC Resolution 1244 (10 June 1999), whereas the UK had entered Iraq with coalition forces without such a resolution. The Court decided that the authorisations contained in UNSC Resolutions after the invasion did not mean that the acts of soldiers within the Multi-National Force became attributable to the United Nations, or more critically, ceased to be attributable to the troop-contributing nations.

The question for Mr Al-Jedda's application then became whether UNSC Resolution 1546 placed the UK under obligation to hold the applicant in detention. The Court considered the purpose of the UN Charter in protecting human rights and decided that there was a presumption against requiring Member States to breach fundamental principles of human rights. Ultimately, the Court determined by 16 votes to one that Mr Al-Jedda's rights under the Convention had been violated.

The Court unanimously determined that there had been a breach of Article 2 in relation to the first five applicants in Al‑Skeini. As a full public hearing was nearing completion in relation to the sixth applicant's relative's death, the Court unanimously determined that the applicant could no longer claim to be a victim of a violation of Article 2.

Relevance to the Victorian Charter

This decision has little relevance to the Victorian Charter which applies to the Parliament of Victoria, courts and tribunals and public authorities in Victoria.

The decisions are available at: www.bailii.org/eu/cases/ECHR/2011/1092.html and www.bailii.org/eu/cases/ECHR/2011/1093.html.

Aleisha Brown is a graduate Lawyer at Allens Arthur Robinson