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2011 | EUROPEAN COURT OF HUMAN RIGHTS | Al-Skeini et al vs United Kingdom, Application no. 55721/07, 7 July 2011

Court

European Court of Human Rights

Type   of decision

Judgment

Date judgment

7 July 2011

Case no.

Application no. 55721/07

Area of jurisdiction

-

Claim

Violation of Article 2 of the European Convention on Human Rights (ECHR) in its procedural aspect

Principle legal argument(s)

Jurisdiction: The applicants alleged that their relatives fell within United Kingdom Article 1 ECHR jurisdiction when killed;

Merits : Applicant complain about ineffective investigation into the deaths of their relatives.

Type   of reparation sought

  • United Kingdom must conduct an Article 2-compliant investigation into the deaths of applicants’ relatives
  • Compensation for non-monetary damages.

This case raises interesting questions of responsibility when exercising extraterritorial control and of liability to make reparation, failing adequate investigations into the killing of civilians in a post-conflict setting.

The March 2003 invasion of Iraq by a USA led Coalition of armed forces that included United Kingdom (UK) contingents, aimed to ensure full dismantlement of Iraq’s capacity to use weapons of mass destruction.  This was followed by a period of joint military occupation from May 1st 2003 until 28 June 2004. Southern Iraq was placed under the UK’s responsibility and control and it is in this time frame and area where the incidents giving rise to this case occurred: six Iraqi nationals died with UK involvement. Four of them were shot dead by British militaries, one was found dead after he had been arrested by British soldiers and one died while in British custody. Despite the British involvement in these events, the UK Secretary of State for Defence decided not to conduct independent inquiries into these deaths, not to accept liability for the deaths and not to award just satisfaction (para. 72). The applicants appealed this decision in legal proceedings in the UK that took four of them up to the country’s highest appeal court. This court ultimately found that the UK did not have jurisdiction over their relatives (para. 84 - with the exception of Mr. Baha Mousa (para. 88).

Thereafter, the applicants lodged a complaint before the European Court of Human Rights (ECtHR) claiming that their relatives, in that particular part of Iraq that was occupied by the UK between May 2003 – June 2004, were within the jurisdiction of the UK for the purposes of Article 1 ECHR at the moment of death and that, except in relation to Mr. Baha Mousa, the UK failed to effectively investigate their deaths, in breach of the implied procedural obligation under Article 2 ECHR (para. 95).

Extraterritorial jurisdiction

The UK accepted that Mr Baha Mousa had been within its jurisdiction but denied that it had jurisdiction over any of the other deceased. It submitted that jurisdiction under Article 1 ECHR is essentially territorial – and thus can only be exercised within UK borders - and that any extension of jurisdiction outside the territory of the Contracting State was exceptional (para. 109). Adjudicating an earlier case[1], the ECtHR had found such an exceptional basis of jurisdiction to exist when a party to the ECHR had “effective control over an area” outside its national territory, but within the legal space (espace juridique) of the other Contracting State. Since Iraq is not a contracting state to the ECHR, the UK submitted that the “effective control of an area” exceptional basis of jurisdiction could not apply. It maintained in addition that the UK lacked “effective control” over any part of Iraq during the relevant period (para. 112) because a) it only had a relatively limited number of boots on the ground in the insecure and instable area of south Iraq, and b) not the UK but the Coalition Provisional Authority (CPA) and later on the Governing Council of Iraq had governing authority in Iraq during the occupation.

For their part, the applicants recognized that jurisdiction under Article 1 ECHR is essentially territorial, but argued that states can nevertheless exercise jurisdiction extraterritorially through “State agent authority” and “effective control of an area.” They argued that the British soldiers had authority and control over their relatives by causing their deaths which then involves the exercise of UK’s jurisdiction under the “State agent authority” principle (paras. 121-123).

State agent authority and control implies extraterritorial jurisdiction 

Assessing the matter, the ECtHR affirmed that jurisdictional competence under Article 1 ECHR is indeed primarily territorial, and that recognition of extraterritorial jurisdiction must remain exceptional (para. 132). However, it also affirmed the applicants’ position that such exception can be established based on ‘state agent authority and control’, implying that in certain circumstances, the use of force by a State’s agents operating outside its territory may bring individuals thereby under the control of the State’s authorities within the State’s Article 1 jurisdiction. The exercise of physical power and control over the person in question were held to be decisive factors (para. 136). In this case,the strength of the UK’s military presence in the area and the extent of its military, economic and political support for the local - subordinate - administration provided it with influence and control over the region (para. 139). Importantly, the ECtHR confirmed that Article 1 ECHR jurisdiction can exist outside the territory covered by the Council of Europe member States (para. 142).

Merits: Breach of the investigative duty under Article 2 EHCR?

The applicant’s accused the UK of failing to comply with its procedural obligation to effectively investigate the killings. The UK argued that it had no legal competence to conduct the investigations outside its own territory, that serious security threats restrained its ability to investigate the shootings and finally, that, insofar as investigations had been carried out, this was done by Royal Military Police investigators, institutionally independent of the UK’s armed forces and thus in conformity with the procedural obligations of Article 2 ECHR (paras. 112, 113, 152, 154).

The ECtHR affirmed that Contracting States are responsible for initiating and conducting effective investigations, even in difficult security conditions such as armed conflicts and –importantly- that a state cannot by off its obligation to investigate situations of killings of individuals (paras. 163-165, 168-169). The ECtHR found that the majority of the shooting incidents were not adequately investigated by independent investigators and thus concluded a breach of the UK’s procedural obligations under Article 2 ECHR (paras 168-177).

Reparations

The applicants each claimed 17,000 euros compensation for non-monetary damages caused by the UK’s negligence to effectively investigate the deaths of their relatives. The ECtHR determined that it falls to the Committee of Ministers acting under Article 46 ECHR to “address what may be required in practical terms by way of compliance” (para. 181) and awarded the full amount of compensation claimed (para. 182).


[1] Bankovi? and Others v. Belgium and Others ((dec.) [GC], no. 52207/99, ECHR 2001-XII