State responsibility under European Convention extends to soldiers serving overseas
Smith v The Ministry of Defence [2013] UKSC 41 (19 June 2013)
Summary
The UK Supreme Court has held that British servicemen who died during service in Iraq were within the jurisdiction of the UK for the purposes of article 1 of the European Convention on Human Rights. Claims that the UK breached article 2 of the Convention by failing to implement a framework for protecting the lives of those servicemen were therefore not struck out by the Court. The Court, instead, required further facts to be examined and saved a determination on the issue for a later date.
Facts
These proceedings stem from the deaths of British servicemen in Iraq. There were three sets of claims examined. This case note focusses upon the second set of claims (“the Snatch Land Rover claims”), which arose from the detonation of improvised explosive devices killing two soldiers travelling in Snatch Land Rovers. It was claimed that the Ministry of Defence breached an implied positive obligation in article 2 of the Convention to take preventative measures to protect the life of soldiers patrolling in Snatch Land Rovers. The other claims were based in negligence at common law.
The Court was asked to determine whether the servicemen were within the UK’s jurisdiction as required by article 1 of the Convention and, if so, whether article 2 imposed positive obligations on the UK to prevent deaths of its own soldiers in overseas military operations.
Decision
Lord Hope (with whom Lord Walker, Lady Hale and Lord Kerr agreed) provided the leading judgment. In relation to whether the servicemen were within the UK’s jurisdiction, Lord Hope cited Bankovic v Belgium (2001) 11 BHRC 435, which held that the reach of the Convention is inhibited by territorial limits which preclude extraterritorial jurisdiction, save in exceptional circumstances. Lord Hope considered that military service abroad was such an “exceptional circumstance” which justified extraterritorial jurisdiction.
In making this determination, Lord Hope referred to R (Al-Skeini) v Secretary of State for Defence [2008] AC 153. He noted that it was not directly applicable to the present circumstances as the casualties in Al-Skeini were Iraqi citizens as opposed to British servicemen. Nevertheless, he extracted from the case a general principle that extra-territorial jurisdiction can exist whenever a state has effective authority and control over an individual. Also, Lord Mance in Al-Skeini said that “An occupying state cannot have jurisdiction over local inhabitants without already having jurisdiction over its own armed forces”. Since it was clear that the UK had jurisdiction over local Iraqi inhabitants, Lord Hope held that the UK must have jurisdiction over servicemen within their military forces. Therefore, the British servicemen were deemed to be within UK jurisdiction at the time of their deaths and the Convention consequently applied.
In examining whether article 2 imposed positive obligations on the UK, Lord Hope looked for guidance from the European Court of Human Rights. After analysis of the relevant jurisprudence, Lord Hope concluded the following:
The guidance which I would draw from the Court’s jurisprudence in this area is that the court must avoid imposing positive obligations on the state in connection with the planning for and conduct of military operations in situations of armed conflict which are unrealistic or disproportionate. But it must give effect to those obligations where it would be reasonable to expect the individual to be afforded the protection of the article. It will be easy to find that allegations are beyond the reach of article 2 if the decisions that were or ought to have been taken about training, procurement or the conduct of operations were at a high level of command and closely linked to the exercise of political judgment and issues of policy.
Lord Hope noted that the circumstances of the Snatch Land Rover claims did not fit neatly into the categories established by the guiding authorities. The Court deemed that more facts were necessary in order to make an accurate determination. In light of this uncertainty, the Court considered its overarching objective is to try and achieve “a fair balance … between the competing interests of the individual and of the community as a whole”. The Court considered it unfair to apply too exacting a standard. As a result, the majority held that the claims ought not to be struck out and for the decision on liability to be deferred until after the trial, when further facts may be examined.
In the minority, Lord Mance (with whom Lord Wilson agreed) contended that this was a question for the European Court of Human Rights and, without any signal from them, the Court should not be extending or introducing principles which do not have basis in common law. Hence, Lord Mance would have struck out the claims.
Editor’s note
The case is the latest in a line of authorities confirming that a state’s human rights obligations do not end at its territorial borders. The decision confirms the principle that a state can have extra-territorial responsibility in respect of matters that are within its effective authority and control.
The decision is available online at: http://www.bailii.org/uk/cases/UKSC/2013/41.html
Rohan Nanthakumar is a Winter Clerk at King & Wood Mallesons.