The facts of the case
In this case the House of Lords (“the Court”) considered whether the refusal by the Secretary of State for Defence to hold an inquiry into the killing of six Iraqi civilians by members of the British armed forces was in breach of their domestic and international legal obligations. One of the six was killed in a British military detention unit; the other five were killed during military patrols or raids in Basra, Iraq. The Appellants were relatives of the six individuals killed. They issued judicial review proceedings challenging the Secretary of State’s decision not to hold a public inquiry into the deaths on the basis that the decision was unlawful under section 6 of the Human Rights Act 1998 (“the HRA”), because it was incompatible with their relatives’ rights under Article 2 of the European Convention on Human Rights (“the Convention”).
The key question on appeal was whether the Human Rights Act 1998 could apply to acts of public authorities outside the borders of the UK. The Secretary of State contended that it did not, and that, in any event, only the individual who had died in a British military unit had been within the jurisdiction of the UK when he was killed.
RSI’s intervention in the case
RSI (then British Irish Rights Watch) intervened with ten other organisations based on its concerns about the rule of law and state accountability during state occupation of foreign territory. The Interveners highlighted the high risk of a practice and expectation of impunity that is created when states are not held to the highest standards of accountability for violations of fundamental rights.
Specifically, the Interveners sought to advance the following points:
- Control over the individual is the key factor in determining jurisdiction under the ECHR;
- Control over the individual is also the key factor in determining jurisdiction under international human rights instruments;
- As an occupying power, a relationship of power, control and protection existed between the UK and the inhabitants of South-East Iraq;
- The fatalities of the first five claimants occurred while the UK troops were exercising their powers as an occupying force. The fatality and ill-treatment of the sixth claimant occurred while he was in the custody of the UK troops;
- Jurisdiction for all claimants under the ECHR is clearly established on the “effective control of an area” or “state agency authority” principles, or both;
- Jurisdiction is the key to accountability, which should be achieved through effective investigation in this case;
- No effective investigation has occurred in any of the claimants’ cases and there is no question of accountability under Iraqi law for the acts in question because UK troops are immune from the Iraqi legal process.
RSI intervened with the Aire Centre, Amnesty International, the Association for the Prevention of Torture, the Bar Human Rights Committee, INTERIGHTS, Justice, the Kurdish Human Rights Project, Liberty, and the Redress Trust.
The judgment in the case
The Court held that the HRA could apply to acts outside the physical territory of the UK, if the relevant act occurred within UK jurisdiction for the purposes of Article 1 of the Convention. This was based on section 6(1) of the HRA, which provides that ‘it is unlawful for a public authority to act in a way which is incompatible with a Convention right’, which does not contain a geographical limitation and in essence cross-refers to the Convention for the purpose of determining whether an act is lawful or not. The purpose of the HRA was to provide remedies in UK domestic law to those whose human rights were violated by a UK public authority. Making such remedies available for acts of a UK authority on the territory of another state would not offend the sovereignty of the other state. There was therefore nothing in the wider context of international law which pointed to the need to confine sections 6 and 7 of the HRA to the territory of the UK.
Because the Secretary of State had conceded that the individual who was killed in a British military detention unit had been under UK jurisdiction at the time, his case was remitted to the Divisional Court. The Court held that the other five individuals had not been in UK jurisdiction for the purposes of Article 1 of the Convention at the time of their deaths. This was based on the European Court of Human Right’s judgment in Bankovic v Belgium and Ors [2001] ECHR 890 (GC), which centralised territoriality as key to determining a state’s jurisdiction. The fact that the victims in that case had been killed by Respondents in an airstrike in that case was insufficient, in and of itself, to bring the victims within the jurisdiction of the Respondents for the purposes of the Convention.
What does this mean for our work?
The Al-Skeini case fits into RSI’s broader conception of work on both the extraterritorial application of human rights and the investigative requirement of the procedural prong of Article 2 of the ECHR.