ITEMID: 001-105606
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: GRANDCHAMBER
DATE: 2011
DOCNAME: CASE OF AL-SKEINI AND OTHERS v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Preliminary objections dismissed (estoppel, non-exhaustion of domestic remedies);Preliminary objection joined to merits and dismissed (lack of jurisdiction);Preliminary objection joined to merits and partially dismissed (victim);Violation of Art. 2 (procedural aspect);Non-pecuniary damage - award
JUDGES: Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Françoise Tulkens;George Nicolaou;Giovanni Bonello;Isabelle Berro-Lefèvre;Jean-Paul Costa;Josep Casadevall;Lech Garlicki;Ledi Bianku;Luis López Guerra;Mihai Poalelungi;Nicolas Bratza;Peer Lorenzen
TEXT: 8. The facts of the case may be summarised as follows.
9. On 8 November 2002 the United Nations Security Council, acting under Chapter VII of the Charter of the United Nations, adopted Resolution 1441. The Resolution decided, inter alia, that Iraq had been and remained in material breach of its obligations under previous United Nations Security Council resolutions to disarm and to cooperate with United Nations and International Atomic Energy Agency weapons inspectors. Resolution 1441 decided to afford Iraq a final opportunity to comply with its disarmament obligations and set up an enhanced inspection regime. It requested the Secretary-General of the United Nations immediately to notify Iraq of the Resolution and demanded that Iraq cooperate immediately, unconditionally, and actively with the inspectors. Resolution 1441 concluded by recalling that the Security Council had “repeatedly warned Iraq that it w[ould] face serious consequences as a result of its continued violations of its obligations”. The Security Council decided to remain seised of the matter.
10. On 20 March 2003 a Coalition of armed forces under unified command, led by the United States of America with a large force from the United Kingdom and small contingents from Australia, Denmark and Poland, commenced the invasion of Iraq. By 5 April 2003 the British had captured Basra and by 9 April 2003 United States troops had gained control of Baghdad. Major combat operations in Iraq were declared complete on 1 May 2003. Thereafter, other States sent personnel to help with the reconstruction effort.
11. On 8 May 2003 the Permanent Representatives of the United Kingdom and the United States of America at the United Nations addressed a joint letter to the President of the United Nations Security Council, which read as follows:
“The United States of America, the United Kingdom of Great Britain and Northern Ireland and Coalition partners continue to act together to ensure the complete disarmament of Iraq of weapons of mass destruction and means of delivery in accordance with United Nations Security Council resolutions. The States participating in the Coalition will strictly abide by their obligations under international law, including those relating to the essential humanitarian needs of the people of Iraq. We will act to ensure that Iraq’s oil is protected and used for the benefit of the Iraqi people.
In order to meet these objectives and obligations in the post-conflict period in Iraq, the United States, the United Kingdom and Coalition partners, acting under existing command and control arrangements through the Commander of Coalition Forces, have created the Coalition Provisional Authority, which includes the Office of Reconstruction and Humanitarian Assistance, to exercise powers of government temporarily, and, as necessary, especially to provide security, to allow the delivery of humanitarian aid, and to eliminate weapons of mass destruction.
The United States, the United Kingdom and Coalition partners, working through the Coalition Provisional Authority, shall, inter alia, provide for security in and for the provisional administration of Iraq, including by: deterring hostilities; maintaining the territorial integrity of Iraq and securing Iraq’s borders; securing, and removing, disabling, rendering harmless, eliminating or destroying (a) all of Iraq’s weapons of mass destruction, ballistic missiles, unmanned aerial vehicles and all other chemical, biological and nuclear delivery systems; and (b) all elements of Iraq’s programme to research, develop, design, manufacture, produce, support, assemble and employ such weapons and delivery systems and subsystems and components thereof, including but not limited to stocks of chemical and biological agents, nuclear-weapon-usable material, and other related materials, technology, equipment, facilities and intellectual property that have been used in or can materially contribute to these programmes; in consultation with relevant international organisations, facilitating the orderly and voluntary return of refugees and displaced persons; maintaining civil law and order, including through encouraging international efforts to rebuild the capacity of the Iraqi civilian police force; eliminating all terrorist infrastructure and resources within Iraq and working to ensure that terrorists and terrorist groups are denied safe haven; supporting and coordinating de-mining and related activities; promoting accountability for crimes and atrocities committed by the previous Iraqi regime; and assuming immediate control of Iraqi institutions responsible for military and security matters and providing, as appropriate, for the demilitarisation, demobilisation, control, command, reformation, disestablishment, or reorganisation of those institutions so that they no longer pose a threat to the Iraqi people or international peace and security but will be capable of defending Iraq’s sovereignty and territorial integrity.
The United States, the United Kingdom and Coalition partners recognise the urgent need to create an environment in which the Iraqi people may freely determine their own political future. To this end, the United States, the United Kingdom and Coalition partners are facilitating the efforts of the Iraqi people to take the first steps towards forming a representative government, based on the rule of law, that affords fundamental freedoms and equal protection and justice under law to the people of Iraq without regard to ethnicity, religion or gender. The United States, the United Kingdom and Coalition partners are facilitating the establishment of representative institutions of government, and providing for the responsible administration of the Iraqi financial sector, for humanitarian relief, for economic reconstruction, for the transparent operation and repair of Iraq’s infrastructure and natural resources, and for the progressive transfer of administrative responsibilities to such representative institutions of government, as appropriate. Our goal is to transfer responsibility for administration to representative Iraqi authorities as early as possible.
The United Nations has a vital role to play in providing humanitarian relief, in supporting the reconstruction of Iraq, and in helping in the formation of an Iraqi interim authority. The United States, the United Kingdom and Coalition partners are ready to work closely with representatives of the United Nations and its specialised agencies and look forward to the appointment of a special coordinator by the Secretary-General. We also welcome the support and contributions of member States, international and regional organisations, and other entities, under appropriate coordination arrangements with the Coalition Provisional Authority.
We would be grateful if you could arrange for the present letter to be circulated as a document of the Security Council.
(Signed) Jeremy Greenstock Permanent Representative of the United Kingdom
(Signed) John D. Negroponte Permanent Representative of the United States”
12. As mentioned in the above letter, the occupying States, acting through the Commander of Coalition Forces, created the Coalition Provisional Authority (CPA) to act as a “caretaker administration” until an Iraqi government could be established. It had power, inter alia, to issue legislation. On 13 May 2003 the US Secretary of Defence, Donald Rumsfeld, issued a memorandum formally appointing Ambassador Paul Bremer as Administrator of the CPA with responsibility for the temporary governance of Iraq. In CPA Regulation No. 1, dated 16 May 2003, Ambassador Bremer provided as follows:
“Pursuant to my authority as Administrator of the Coalition Provisional Authority (CPA), relevant UN Security Council resolutions, including Resolution 1483 (2003), and the laws and usages of war,
I hereby promulgate the following:
Section 1
The Coalition Provisional Authority
(1) The CPA shall exercise powers of government temporarily in order to provide for the effective administration of Iraq during the period of transitional administration, to restore conditions of security and stability, to create conditions in which the Iraqi people can freely determine their own political future, including by advancing efforts to restore and establish national and local institutions for representative governance and facilitating economic recovery and sustainable reconstruction and development.
(2) The CPA is vested with all executive, legislative and judicial authority necessary to achieve its objectives, to be exercised under relevant UN Security Council resolutions, including Resolution 1483 (2003), and the laws and usages of war. This authority shall be exercised by the CPA Administrator.
(3) As the Commander of Coalition Forces, the Commander of US Central Command shall directly support the CPA by deterring hostilities; maintaining Iraq’s territorial integrity and security; searching for, securing and destroying weapons of mass destruction; and assisting in carrying out Coalition policy generally.
Section 2
The Applicable Law
Unless suspended or replaced by the CPA or superseded by legislation issued by democratic institutions of Iraq, laws in force in Iraq as of 16 April 2003 shall continue to apply in Iraq in so far as the laws do not prevent the CPA from exercising its rights and fulfilling its obligations, or conflict with the present or any other Regulation or Order issued by the CPA.
...”
13. The CPA administration was divided into regional areas. CPA South was placed under United Kingdom responsibility and control, with a United Kingdom Regional Coordinator. It covered the southernmost four of Iraq’s eighteen provinces, each having a governorate coordinator. United Kingdom troops were deployed in the same area. The United Kingdom was represented at CPA headquarters through the Office of the United Kingdom Special Representative. According to the Government, although the United Kingdom Special Representative and his Office sought to influence CPA policy and decisions, United Kingdom personnel had no formal decision-making power within the Authority. All the CPA’s administrative and legislative decisions were taken by Ambassador Bremer.
14. United Nations Security Council Resolution 1483 referred to by Ambassador Bremer in CPA Regulation No. 1 was actually adopted six days later, on 22 May 2003. It provided as follows:
“The Security Council,
Recalling all its previous relevant resolutions,
Reaffirming the sovereignty and territorial integrity of Iraq,
Reaffirming also the importance of the disarmament of Iraqi weapons of mass destruction and of eventual confirmation of the disarmament of Iraq,
Stressing the right of the Iraqi people freely to determine their own political future and control their own natural resources, welcoming the commitment of all parties concerned to support the creation of an environment in which they may do so as soon as possible, and expressing resolve that the day when Iraqis govern themselves must come quickly,
Encouraging efforts by the people of Iraq to form a representative government based on the rule of law that affords equal rights and justice to all Iraqi citizens without regard to ethnicity, religion, or gender, and, in this connection, recalls Resolution 1325 (2000) of 31 October 2000,
Welcoming the first steps of the Iraqi people in this regard, and noting in this connection the 15 April 2003 Nasiriyah statement and the 28 April 2003 Baghdad statement,
Resolved that the United Nations should play a vital role in humanitarian relief, the reconstruction of Iraq, and the restoration and establishment of national and local institutions for representative governance,
...
Noting the letter of 8 May 2003 from the Permanent Representatives of the United States of America and the United Kingdom of Great Britain and Northern Ireland to the President of the Security Council (S/2003/538) and recognising the specific authorities, responsibilities, and obligations under applicable international law of these States as Occupying Powers under unified command (the ‘Authority’),
Noting further that other States that are not Occupying Powers are working now or in the future may work under the Authority,
Welcoming further the willingness of member States to contribute to stability and security in Iraq by contributing personnel, equipment, and other resources under the Authority,
Concerned that many Kuwaitis and Third-State Nationals still are not accounted for since 2 August 1990,
Determining that the situation in Iraq, although improved, continues to constitute a threat to international peace and security,
Acting under Chapter VII of the Charter of the United Nations,
1. Appeals to member States and concerned organisations to assist the people of Iraq in their efforts to reform their institutions and rebuild their country, and to contribute to conditions of stability and security in Iraq in accordance with this Resolution;
2. Calls upon all member States in a position to do so to respond immediately to the humanitarian appeals of the United Nations and other international organisations for Iraq and to help meet the humanitarian and other needs of the Iraqi people by providing food, medical supplies, and resources necessary for reconstruction and rehabilitation of Iraq’s economic infrastructure;
3. Appeals to member States to deny safe haven to those members of the previous Iraqi regime who are alleged to be responsible for crimes and atrocities and to support actions to bring them to justice;
4. Calls upon the Authority, consistent with the Charter of the United Nations and other relevant international law, to promote the welfare of the Iraqi people through the effective administration of the territory, including in particular working towards the restoration of conditions of security and stability and the creation of conditions in which the Iraqi people can freely determine their own political future;
5. Calls upon all concerned to comply fully with their obligations under international law including in particular the Geneva Conventions of 1949 and the Hague Regulations of 1907;
...
8. Requests the Secretary-General to appoint a Special Representative for Iraq whose independent responsibilities shall involve reporting regularly to the Council on his activities under this Resolution, coordinating activities of the United Nations in post-conflict processes in Iraq, coordinating among United Nations and international agencies engaged in humanitarian assistance and reconstruction activities in Iraq, and, in coordination with the Authority, assisting the people of Iraq through:
(a) coordinating humanitarian and reconstruction assistance by United Nations agencies and between United Nations agencies and non-governmental organisations;
(b) promoting the safe, orderly, and voluntary return of refugees and displaced persons;
(c) working intensively with the Authority, the people of Iraq, and others concerned to advance efforts to restore and establish national and local institutions for representative governance, including by working together to facilitate a process leading to an internationally recognised, representative government of Iraq;
(d) facilitating the reconstruction of key infrastructure, in cooperation with other international organisations;
(e) promoting economic reconstruction and the conditions for sustainable development, including through coordination with national and regional organisations, as appropriate, civil society, donors, and the international financial institutions;
(f) encouraging international efforts to contribute to basic civilian administration functions;
(g) promoting the protection of human rights;
(h) encouraging international efforts to rebuild the capacity of the Iraqi civilian police force; and
(i) encouraging international efforts to promote legal and judicial reform;
9. Supports the formation, by the people of Iraq with the help of the Authority and working with the Special Representative, of an Iraqi interim administration as a transitional administration run by Iraqis, until an internationally recognised, representative government is established by the people of Iraq and assumes the responsibilities of the Authority;
...
24. Requests the Secretary-General to report to the Council at regular intervals on the work of the Special Representative with respect to the implementation of this Resolution and on the work of the International Advisory and Monitoring Board and encourages the United Kingdom of Great Britain and Northern Ireland and the United States of America to inform the Council at regular intervals of their efforts under this Resolution;
25. Decides to review the implementation of this Resolution within twelve months of adoption and to consider further steps that might be necessary.
26. Calls upon member States and international and regional organisations to contribute to the implementation of this Resolution;
27. Decides to remain seised of this matter.”
15. In July 2003 the Governing Council of Iraq was established. The CPA was required to consult with it on all matters concerning the temporary governance of Iraq.
16. On 16 October 2003 the United Nations Security Council passed Resolution 1511, which provided, inter alia, as follows:
“The Security Council
...
Underscoring that the sovereignty of Iraq resides in the State of Iraq, reaffirming the right of the Iraqi people freely to determine their own political future and control their own natural resources, reiterating its resolve that the day when Iraqis govern themselves must come quickly, and recognising the importance of international support, particularly that of countries in the region, Iraq’s neighbours, and regional organisations, in taking forward this process expeditiously,
Recognising that international support for restoration of conditions of stability and security is essential to the well-being of the people of Iraq as well as to the ability of all concerned to carry out their work on behalf of the people of Iraq, and welcoming member State contributions in this regard under Resolution 1483 (2003),
Welcoming the decision of the Governing Council of Iraq to form a preparatory constitutional committee to prepare for a constitutional conference that will draft a Constitution to embody the aspirations of the Iraqi people, and urging it to complete this process quickly,
...
Determining that the situation in Iraq, although improved, continues to constitute a threat to international peace and security,
Acting under Chapter VII of the Charter of the United Nations,
1. Reaffirms the sovereignty and territorial integrity of Iraq, and underscores, in that context, the temporary nature of the exercise by the Coalition Provisional Authority (Authority) of the specific responsibilities, authorities, and obligations under applicable international law recognised and set forth in Resolution 1483 (2003), which will cease when an internationally recognised, representative government established by the people of Iraq is sworn in and assumes the responsibilities of the Authority, inter alia, through steps envisaged in paragraphs 4 through 7 and 10 below;
...
4. Determines that the Governing Council and its ministers are the principal bodies of the Iraqi interim administration, which, without prejudice to its further evolution, embodies the sovereignty of the State of Iraq during the transitional period until an internationally recognised, representative government is established and assumes the responsibilities of the Authority;
5. Affirms that the administration of Iraq will be progressively undertaken by the evolving structures of the Iraqi interim administration;
6. Calls upon the Authority, in this context, to return governing responsibilities and authorities to the people of Iraq as soon as practicable and requests the Authority, in cooperation as appropriate with the Governing Council and the Secretary-General, to report to the Council on the progress being made;
7. Invites the Governing Council to provide to the Security Council, for its review, no later than 15 December 2003, in cooperation with the Authority and, as circumstances permit, the Special Representative of the Secretary-General, a timetable and a programme for the drafting of a new Constitution for Iraq and for the holding of democratic elections under that Constitution;
8. Resolves that the United Nations, acting through the Secretary-General, his Special Representative, and the United Nations Assistance Mission for Iraq, should strengthen its vital role in Iraq, including by providing humanitarian relief, promoting the economic reconstruction of and conditions for sustainable development in Iraq, and advancing efforts to restore and establish national and local institutions for representative government;
...
13. Determines that the provision of security and stability is essential to the successful completion of the political process as outlined in paragraph 7 above and to the ability of the United Nations to contribute effectively to that process and the implementation of Resolution 1483 (2003), and authorises a Multinational Force under unified command to take all necessary measures to contribute to the maintenance of security and stability in Iraq, including for the purpose of ensuring necessary conditions for the implementation of the timetable and programme as well as to contribute to the security of the United Nations Assistance Mission for Iraq, the Governing Council of Iraq and other institutions of the Iraqi interim administration, and key humanitarian and economic infrastructure;
14. Urges member States to contribute assistance under this United Nations mandate, including military forces, to the Multinational Force referred to in paragraph 13 above;
15. Decides that the Council shall review the requirements and mission of the Multinational Force referred to in paragraph 13 above not later than one year from the date of this Resolution, and that in any case the mandate of the Force shall expire upon the completion of the political process as described in paragraphs 4 through 7 and 10 above, and expresses readiness to consider on that occasion any future need for the continuation of the Multinational Force, taking into account the views of an internationally recognised, representative government of Iraq;
...
25. Requests that the United States, on behalf of the Multinational Force as outlined in paragraph 13 above, report to the Security Council on the efforts and progress of this Force as appropriate and not less than every six months;
26. Decides to remain seised of the matter.”
17. On 8 March 2004 the Governing Council of Iraq promulgated the Law of Administration for the State of Iraq for the Transitional Period (known as the “Transitional Administrative Law”). This provided a temporary legal framework for the administration of Iraq for the transitional period which was due to commence by 30 June 2004 with the establishment of an interim Iraqi government and the dissolution of the CPA.
18. Provision for the new regime was made in United Nations Security Council Resolution 1546, adopted on 8 June 2004, which provided, inter alia, that the Security Council, acting under Chapter VII of the Charter of the United Nations:
“1. Endorses the formation of a sovereign interim government of Iraq, as presented on 1 June 2004, which will assume full responsibility and authority by 30 June 2004 for governing Iraq while refraining from taking any actions affecting Iraq’s destiny beyond the limited interim period until an elected transitional government of Iraq assumes office as envisaged in paragraph 4 below;
2. Welcomes that, also by 30 June 2004, the occupation will end and the Coalition Provisional Authority will cease to exist, and that Iraq will reassert its full sovereignty;
...
8. Welcomes ongoing efforts by the incoming interim government of Iraq to develop Iraqi security forces including the Iraqi armed forces (hereinafter referred to as ‘Iraqi security forces’), operating under the authority of the interim government of Iraq and its successors, which will progressively play a greater role and ultimately assume full responsibility for the maintenance of security and stability in Iraq;
9. Notes that the presence of the Multinational Force in Iraq is at the request of the incoming interim government of Iraq and therefore reaffirms the authorisation for the Multinational Force under unified command established under Resolution 1511 (2003), having regard to the letters annexed to this Resolution;
10. Decides that the Multinational Force shall have the authority to take all necessary measures to contribute to the maintenance of security and stability in Iraq in accordance with the letters annexed to this Resolution expressing, inter alia, the Iraqi request for the continued presence of the Multinational Force and setting out its tasks, including by preventing and deterring terrorism, so that, inter alia, the United Nations can fulfil its role in assisting the Iraqi people as outlined in paragraph 7 above and the Iraqi people can implement freely and without intimidation the timetable and programme for the political process and benefit from reconstruction and rehabilitation activities;
...”
19. On 28 June 2004 full authority was transferred from the CPA to the Iraqi interim government and the CPA ceased to exist. Subsequently, the Multinational Force, including the British forces forming part of it, remained in Iraq pursuant to requests by the Iraqi government and authorisations from the United Nations Security Council.
20. During this period, the Coalition Forces consisted of six divisions that were under the overall command of US generals. Four were US divisions and two were multinational. Each division was given responsibility for a particular geographical area of Iraq. The United Kingdom was given command of the Multinational Division (South-East), which comprised the provinces of Basra, Maysan, Thi Qar and AlMuthanna, an area of 96,000 square kilometres with a population of 4.6 million. There were 14,500 Coalition troops, including 8,150 United Kingdom troops, stationed in the Multinational Division (South-East). The main theatre for operations by United Kingdom forces in the Multinational Division (South-East) were the Basra and Maysan provinces, with a total population of about 2.75 million people. Just over 8,000 British troops were deployed there, of whom just over 5,000 had operational responsibilities.
21. From 1 May 2003 onwards British forces in Iraq carried out two main functions. The first was to maintain security in the Multinational Division (South-East) area, in particular in the Basra and Maysan provinces. The principal security task was the effort to re-establish the Iraqi security forces, including the Iraqi police. Other tasks included patrols, arrests, anti-terrorist operations, policing of civil demonstrations, protection of essential utilities and infrastructure and protecting police stations. The second main function of the British troops was the support of the civil administration in Iraq in a variety of ways, from liaison with the CPA and Governing Council of Iraq and local government, to assisting with the rebuilding of the infrastructure.
22. In the Aitken Report (see paragraph 69 below), prepared on behalf of the Army Chief of General Staff, the post-conflict situation in Iraq was described as follows:
“The context in which operations have been conducted in Iraq has been exceptionally complex. It is not for this report to comment on the jus ad bellum aspects of the operation, nor of the public’s opinions of the invasion. It is, however, important to note that the Alliance’s post-invasion plans concentrated more on the relief of a humanitarian disaster (which did not, in the event, occur on anything like the scale that had been anticipated), and less on the criminal activity and subsequent insurgency that actually took place. One consequence of that was that we had insufficient troops in theatre to deal effectively with the situation in which we found ourselves. Peace support operations require significantly larger numbers of troops to impose law and order than are required for prosecuting a war: ours were very thinly spread on the ground. In his investigation (in April 2005) of the Breadbasket incident [alleged abuse of Iraqis detained on suspicion of looting humanitarian aid stores], Brigadier Carter described conditions in Iraq thus:
‘... May 2003, some four weeks or so after British forces had started to begin the transition from offensive operations to stabilisation. The situation was fluid. Battlegroups had been given geographic areas of responsibility based generally around their initial tactical objectives. Combat operations had officially ended, and [the] rules of engagement had changed to reflect this, but there was a rising trend of shooting incidents. Although these were principally between Iraqis, seeking to settle old scores or involved in criminal activity, there were early indications that the threat to British soldiers was developing ... The structure of the British forces was changing. Many of the heavier capabilities that had been required for the invasion were now being sent home. Some force elements were required for operations elsewhere, and there was pressure from the UK to downsize quickly to more sustainable numbers ... Local attitudes were also changing. Initially ecstatic with happiness, the formerly downtrodden Shia population in and around Basra had become suspicious, and by the middle of May people were frustrated. Aspirations and expectations were not being met. There was no Iraqi administration or governance. Fuel and potable water were in short supply, electricity was intermittent, and the hospitals were full of wounded from the combat operations phase. Bridges and key routes had been destroyed by Coalition bombing. Law and order had completely collapsed. The Iraqi police service had melted away; the few security guards who remained were old and incapable; and the Iraqi armed forces had been captured, disbanded or deserted. Criminals had been turned out onto the streets and the prisons had been stripped. The judiciary were in hiding. Every government facility had been raided and all loose items had been removed. Insecure buildings had been occupied by squatters. Crime was endemic and in parts of Basra a state of virtual anarchy prevailed. Hijackings, child kidnappings, revenge killings, car theft and burglary were rife. In a very short space of time wealth was being comprehensively redistributed.’
In this environment, the British army was the sole agent of law and order within its area of operations. When the Association of Chief Police Officers’ Lead for International Affairs, Mr Paul Kernaghan, visited Iraq in May 2003, he said that he would not recommend the deployment of civilian police officers to the theatre of operations due to the poor security situation. The last time the army had exercised the powers of an army of occupation was in 1945 – and it had spent many months preparing for that role; in May 2003, the same soldiers who had just fought a highintensity, conventional war were expected to convert, almost overnight, into the only people capable of providing the agencies of government and humanitarian relief for the people of southern Iraq. Battlegroups (comprising a Lieutenant Colonel and about 500 soldiers) were allocated areas of responsibilities comprising hundreds of square miles; companies (a Major with about 100 men under command) were given whole towns to run. The British invasion plans had wisely limited damaging as much of the physical infrastructure as possible; but with only military personnel available to run that infrastructure, and very limited local staff support, the task placed huge strains on the army.
One of the effects of this lack of civil infrastructure was the conundrum British soldiers faced when dealing with routine crime. Our experience in Northern Ireland, and in peace support operations around the world, has inculcated the clear principle of police primacy when dealing with criminals in operational environments. Soldiers accept that they will encounter crime, and that they will occasionally be required to arrest those criminals; but (despite some experience of this syndrome in Kosovo in 1999) our doctrine and practice had not prepared us for dealing with those criminals when there was no civil police force, no judicial system to deal with offenders, and no prisons to detain them in. Even when a nascent Iraqi police force was re-established in 2003, troops on the ground had little confidence in its ability to deal fairly or reasonably with any criminals handed over to it. In hindsight, we now know that some soldiers acted outside the law in the way they dealt with local criminals. However diligent they were, commanders were unable to be everywhere, and so were physically unable to supervise their troops to the extent that they should; as a result, when those instances did occur, they were less likely to be spotted and prevented.”
23. United Kingdom military records show that, as at 30 June 2004, there had been approximately 178 demonstrations and 1,050 violent attacks against Coalition Forces in the Multinational Division (South-East) since 1 May 2003. The violent attacks consisted of 5 anti-aircraft attacks, 12 grenade attacks, 101 attacks using improvised explosive devices, 52 attempted attacks using improvised explosive devices, 145 mortar attacks, 147 rocket-propelled grenade attacks, 535 shootings and 53 others. The same records show that, between May 2003 and March 2004, 49 Iraqis were known to have been killed in incidents in which British troops used force.
24. The use of force by British troops during operations is covered by the appropriate rules of engagement. The rules of engagement governing the use of lethal force by British troops in Iraq during the relevant period were the subject of guidance contained in a card issued to every soldier, known as “Card Alpha”. Card Alpha set out the rules of engagement in the following terms:
“CARD A – GUIDANCE FOR OPENING FIRE FOR SERVICE PERSONNEL AUTHORISED TO CARRY ARMS AND AMMUNITION ON DUTY
GENERAL GUIDANCE
1. This guidance does not affect your inherent right to self-defence. However, in all situations you are to use no more force than absolutely necessary.
FIREARMS MUST ONLY BE USED AS A LAST RESORT
2. When guarding property, you must not use lethal force other than for the protection of human life.
PROTECTION OF HUMAN LIFE
3. You may only open fire against a person if he/she is committing or about to commit an act likely to endanger life and there is no other way to prevent the danger.
CHALLENGING
4. A challenge MUST be given before opening fire unless:
(a) to do this would be to increase the risk of death or grave injury to you or any other persons other than the attacker(s);
OR
(b) you or others in the immediate vicinity are under armed attack.
5. You are to challenge by shouting: ‘NAVY, ARMY, AIR FORCE, STOP OR I FIRE’ or words to that effect.
OPENING FIRE
6. If you have to open fire you are to:
(a) fire only aimed shots;
AND
(b) fire no more rounds than are necessary;
AND
(c) take all reasonable precautions not to injure anyone other than your target.”
25. On 21 June 2003 Brigadier Moore (Commander of the 19 Mechanised Brigade in Iraq from June to November 2003) issued a formal policy on the investigation of shooting incidents. This policy provided that all shooting incidents were to be reported and the Divisional Provost Marshal was to be informed. Non-commissioned officers from the Royal Military Police were then to evaluate the incident and decide whether it fell within the rules of engagement. If it was decided that the incident did come within the rules of engagement, statements were to be recorded and a completed bulletin submitted through the chain of command. If the incident appeared to fall outside the rules of engagement and involved death or serious injury, the investigation was to be handed to the Special Investigation Branch of the Royal Military Police (see paragraph 28 below) by the Divisional Provost Marshal at the earliest opportunity.
26. However, Brigadier Moore decided that from 28 July 2003 this policy should be revised. The new policy required that all such incidents should be reported immediately by the soldier involved to the Multinational Division (South-East) by means of a “serious incident report”. There would then be an investigation into the incident by the Company Commander or the soldier’s Commanding Officer. In his evidence to the domestic courts, Brigadier Moore explained that:
“The form of an investigation into an incident would vary according to the security situation on the ground and the circumstances of the individual case. Generally, it would involve the Company Commander or Commanding Officer taking statements from the members of the patrol involved, and reviewing radio logs. It might also include taking photographs of the scene. Sometimes there would be further investigation through a meeting with the family/tribe of the person killed. Investigations at unit-level, however, would not include a full forensic examination. Within the Brigade, we had no forensic capability.”
If the Commanding Officer was satisfied, on the basis of the information available to him, that the soldier had acted lawfully and within the rules of engagement, there was no requirement to initiate an investigation by the Special Investigation Branch. The Commanding Officer would record his decision in writing to Brigadier Moore. If the Commanding Officer was not so satisfied, or if he had insufficient information to arrive at a decision, he was required to initiate a Special Investigation Branch investigation.
27. Between January and April 2004 there was a further reconsideration of this policy, prompted by the fact that the environment had become less hostile and also by the considerable media and parliamentary interest in incidents involving United Kingdom forces in which Iraqis had died. On 24 April 2004 a new policy was adopted by the Commander of the Multinational Division (South-East), requiring all shooting incidents involving United Kingdom forces which resulted in a civilian being killed or injured to be investigated by the Special Investigation Branch. In exceptional cases, the Brigade Commander could decide that an investigation was not necessary. Any such decision had to be notified to the Commander of the Multinational Division (South-East) in writing.
28. The Royal Military Police form part of the army and deploy with the army on operations abroad, but have a separate chain of command. Military police officers report to the Provost Marshal, who reports to the Adjutant General. Within the Royal Military Police, the Special Investigation Branch is responsible for the investigation of serious crimes committed by members of the British forces while on service, incidents involving contact between the military and civilians and any special investigations tasked to it, including incidents involving civilian deaths caused by British soldiers. To secure their practical independence on operations, the Special Investigation Branch deploy as entirely discrete units and are subject to their own chain of command, headed by provost officers who are deployed on operations for this purpose.
29. Investigations into Iraqi civilian deaths involving British soldiers were triggered either by the Special Investigation Branch being asked to investigate by the Commanding Officer of the units concerned or by the Special Investigation Branch of its own initiative, when it became aware of an incident by other means. However, the latter type of investigation could be terminated if the Special Investigation Branch was instructed to stop by the Provost Marshal or the Commanding Officer of the unit involved.
30. Special Investigation Branch investigations in Iraq were hampered by a number of difficulties, such as security problems, lack of interpreters, cultural considerations (for example, the Islamic practice requiring a body to be buried within twenty-four hours and left undisturbed for forty days), the lack of pathologists and post-mortem facilities, the lack of records, problems with logistics, the climate and general working conditions. The Aitken Report (see paragraph 69 below) summarised the position as follows:
“It was not only the combat troops who were overstretched in these circumstances. The current military criminal justice system is relevant, independent, and fit for purpose; but even the most effective criminal justice system will struggle to investigate, advise on and prosecute cases where the civil infrastructure is effectively absent. And so, in the immediate aftermath of the ground war, the Service Police faced particular challenges in gathering evidence of a quality that would meet the very high standards required under English law. National records – usually an integral reference point for criminal investigations – were largely absent; a different understanding of the law between Iraqi people and British police added to an atmosphere of hostility and suspicion; and the army was facing an increasingly dangerous operational environment – indeed, on 24 June 2003, six members of the Royal Military Police were killed in Al Amarah. Local customs similarly hampered the execution of British standards of justice: in the case of Nadhem Abdullah, for instance, the family of the deceased refused to hand over the body for forensic examination – significantly reducing the quality of evidence surrounding his death.”
The Aitken Report also referred to the problems caused to the Special Investigation Branch, when attempting to investigate serious allegations of abuse, by the sense of loyalty to fellow soldiers which could lead to a lack of cooperation from army personnel and to what the judge in the court martial concerning the killing of the sixth applicant’s son had described as a “wall of silence” from some of the military witnesses called to give evidence.
31. On conclusion of a Special Investigation Branch investigation, the Special Investigation Branch officer would report in writing to the Commanding Officer of the unit involved. Such a report would include a covering letter and a summary of the evidence, together with copies of any documentary evidence relevant to the investigation in the form of statements from witnesses and investigators. The report would not contain any decision as to the facts or conclusions as to what had happened. It was then for the Commanding Officer to decide whether or not to refer the case to the Army Prosecuting Authority for possible trial by court martial.
32. The Aitken Report, dated 25 January 2008 (see paragraph 69 below), commented on the prosecution of armed forces personnel in connection with the death of Iraqi civilians, as follows:
“Four cases involving Iraqi deaths as a result of deliberate abuse have been investigated, and subsequently referred to the Army Prosecuting Authority (APA) on the basis there was a prima facie case that the victims had been killed unlawfully by British troops. The APA preferred charges on three of these cases on the basis that it considered there was a realistic prospect of conviction, and that trial was in the public and service interest; and yet not one conviction for murder or manslaughter has been recorded.
The army’s position is straightforward on the issue of prosecution. Legal advice is available for commanding officers and higher authorities to assist with decisions on referring appropriate cases to the APA. The Director Army Legal Services (DALS), who is responsible to the Adjutant General for the provision of legal services to the army, is additionally appointed by the Queen as the APA. In that capacity, he has responsibility for decisions on whether to direct trial for all cases referred by the military chain of command, and for the prosecution of all cases tried before courts martial, the Standing Civilian Court and the Summary Appeal Court and for appeals before the Courts-Martial Appeal Court and the House of Lords. DALS delegates these functions to ALS [(Army Legal Services)] officers appointed as prosecutors in the APA, and Brigadier Prosecutions has day-to-day responsibility for the APA. The APA is under the general superintendence of the Attorney General and is, rightly, independent of the army chain of command: the APA alone decides whether to direct court-martial trial and the appropriate charges, and neither the army chain of command, nor ministers, officials nor anyone else can make those decisions. However complex the situation in which it finds itself, the army must operate within the law at all times; once the APA has made its decision (based on the evidence and the law), the army has to accept that the consequences of prosecuting particular individuals or of particular charges may have a negative impact on its reputation.
The absence of a single conviction for murder or manslaughter as a result of deliberate abuse in Iraq may appear worrying, but it is explicable. Evidence has to be gathered (and, as already mentioned, this was not an easy process); that evidence has to be presented in court; and defendants are presumed innocent unless the prosecution can prove its case beyond reasonable doubt. That is a stiff test – no different to the one that applies in our civilian courts. In the broader context, the outcome from prosecutions brought to court martial by the APA is almost exactly comparable with the equivalent civilian courts: for example, as at the end of 2006, the conviction rates after trial in the court-martial system stood at 12% as compared with 13% in the Crown Courts. It is inevitable that some prosecutions will fail; but this does not mean that they should not have been brought in the first place. It is the courts, after all, that determine guilt, not the prosecutors. Indeed, the fact that only a small number of all the 200-odd cases investigated by Service Police in Iraq resulted in prosecution could be interpreted as both a positive and a negative indicator: positive, in that the evidence and the context did not support the preferring of criminal charges; but negative, in that we know that the Service Police were hugely hampered, in some cases, in their ability to collect evidence of a high enough standard for charges to be preferred or for cases to be successfully prosecuted.
It is important to note that none of this implies any fundamental flaws in the effectiveness of the key elements of the military criminal justice system. Both the Special Investigation Branch of the Royal Military Police (RMP(SIB)) and the APA were independently inspected during 2007. The police inspection reported that ‘... Her Majesty’s Inspectorate of Constabulary assess the RMP(SIB) as having the capability and capacity to run a competent level 3 (serious criminal) reactive investigation’; and the inspection of the APA in February and March 2007 by Her Majesty’s Crown Prosecution Service Inspectorate concluded that: ‘... the APA undertakes its responsibilities in a thorough and professional manner, often in difficult circumstances’, adding that 95.7% of decisions to proceed to trial were correct on evidential grounds, and 100% of decisions to proceed to trial were properly based on public or service interest grounds.”
33. The following accounts are based on the witness statements of the applicants and the British soldiers involved in each incident. These statements were also submitted to the domestic courts and, as regards all but the fifth applicant, summarised in their judgments (particularly the judgment of the Divisional Court).
34. The first applicant is the brother of Hazim Jum’aa Gatteh Al-Skeini (“Hazim Al-Skeini”), who was 23 years old at the time of his death. Hazim Al-Skeini was one of two Iraqis from the Beini Skein tribe who were shot dead in the Al-Majidiyah area of Basra just before midnight on 4 August 2003 by Sergeant A., the Commander of a British patrol.
35. In his witness statement, the first applicant explained that, during the evening in question, various members of his family had been gathering at a house in Al-Majidiyah for a funeral ceremony. In Iraq it is customary for guns to be discharged at a funeral. The first applicant stated that he was engaged in receiving guests at the house, as they arrived for the ceremony, and saw his brother fired upon by British soldiers as he was walking along the street towards the house. According to the first applicant, his brother was unarmed and only about ten metres away from the soldiers when he was shot and killed. Another man with him was also killed. He had no idea why the soldiers opened fire.
36. According to the British account of the incident, the patrol, approaching on foot and on a very dark night, heard heavy gunfire from a number of different points in Al-Majidiyah. As the patrol got deeper into the village they came upon two Iraqi men in the street. One was about five metres from Sergeant A., who was leading the patrol. Sergeant A. saw that he was armed and pointing the gun in his direction. In the dark, it was impossible to tell the position of the second man. Believing that his life and those of the other soldiers in the patrol were at immediate risk, Sergeant A. opened fire on the two men without giving any verbal warning.
37. The following day, Sergeant A. produced a written statement describing the incident. This was passed to the Commanding Officer of his battalion, Colonel G., who took the view that the incident fell within the rules of engagement and duly wrote a report to that effect. Colonel G. sent the report to the Brigade, where it was considered by Brigadier Moore. Brigadier Moore queried whether the other man had been pointing his gun at the patrol. Colonel G. wrote a further report that dealt with this query to Brigadier Moore’s satisfaction. The original report was not retained in the Brigade records. Having considered Colonel G.’s further report, as did his Deputy Chief of Staff and his legal adviser, Brigadier Moore was satisfied that the actions of Sergeant A. fell within the rules of engagement and so he did not order any further investigation.
38. On 11, 13 and 16 August 2003 Colonel G. met with members of the dead men’s tribe. He explained why Sergeant A. had opened fire and gave the tribe a charitable donation of 2,500 United States dollars (USD) from the British Army Goodwill Payment Committee, together with a letter explaining the circumstances of the deaths and acknowledging that the deceased had not intended to attack anyone.
39. The second applicant is the widow of Muhammad Salim, who was shot and fatally wounded by Sergeant C. shortly after midnight on 6 November 2003.
40. The second applicant was not present when her husband was shot and her evidence was based on what she was told by those who were present. She stated that on 5 November 2003, during Ramadan, Muhammad Salim went to visit his brother-in-law at his home in Basra. At about 11.30 p.m. British soldiers raided the house. They broke down the front door. One of the British soldiers came face-to-face with the second applicant’s husband in the hall of the house and fired a shot at him, hitting him in the stomach. The British soldiers took him to the Czech military hospital, where he died on 7 November 2003.
41. According to the British account of the incident, the patrol had received information from an acquaintance of one of their interpreters that a group of men armed with long-barrelled weapons, grenades and rocket- propelled grenades had been seen entering the house. The order was given for a quick search-and-arrest operation. After the patrol failed to gain entry by knocking, the door was broken down. Sergeant C. entered the house through the front door with two other soldiers and cleared the first room. As he entered the second room, he heard automatic gunfire from within the house. When Sergeant C. moved forward into the next room by the bottom of the stairs, two men armed with long-barrelled weapons rushed down the stairs towards him. There was no time to give a verbal warning. Sergeant C. believed that his life was in immediate danger. He fired one shot at the leading man, the second applicant’s husband, and hit him in the stomach. He then trained his weapon on the second man who dropped his gun. The applicant’s family subsequently informed the patrol that they were lawyers and were in dispute with another family of lawyers over the ownership of office premises, which had led to their being subjected to two armed attacks which they had reported to the police, one three days before and one only thirty minutes before the patrol’s forced entry.
42. On 6 November 2003 the Company Commander produced a report of the incident. He concluded that the patrol had deliberately been provided with false intelligence by the other side in the feud. Having considered the report and spoken to the Company Commander, Colonel G. came to the conclusion that the incident fell within the rules of engagement and did not require any further Special Investigation Branch investigation. He therefore produced a report to that effect the same day and forwarded it to the Brigade, where it was considered by Brigadier General Jones. Brigadier Jones discussed the matter with his Deputy Chief of Staff and his legal adviser. He also discussed the case with his political adviser. As a result, Brigadier Jones also concluded that it was a straightforward case that fell within the rules of engagement and duly issued a report to that effect. The applicant, who had three young children and an elderly mother-in-law to support, received USD 2,000 from the British Army Goodwill Payment Committee, together with a letter setting out the circumstances of the killing.
43. The third applicant is the widower of Hannan Mahaibas Sadde Shmailawi, who was shot and fatally wounded on 10 November 2003 at the Institute of Education in the Al-Maqaal area of Basra, where the third applicant worked as a night porter and lived with his wife and family.
44. According to the third applicant’s witness statement, at about 8 p.m. on the evening in question, he and his family were sitting round the dinner table when there was a sudden burst of machine-gunfire from outside the building. Bullets struck his wife in the head and ankles and one of his children on the arm. The applicant’s wife and child were taken to hospital, where his child recovered but his wife died.
45. According to the British account of the incident, the third applicant’s wife was shot during a firefight between a British patrol and a number of unknown gunmen. When the area was illuminated by parachute flares, at least three men with long-barrelled weapons were seen in open ground, two of whom were firing directly at the British soldiers. One of the gunmen was shot dead during this exchange of fire with the patrol. After about seven to ten minutes, the firing ceased and armed people were seen running away. A woman (the third applicant’s wife) with a head injury and a child with an arm injury were found when the buildings were searched. Both were taken to hospital.
46. The following morning, the Company Commander produced a report concerning the incident, together with statements from the soldiers involved. After he had considered the report and statements, Colonel G. came to the conclusion that the incident fell within the rules of engagement and did not require any further Special Investigation Branch investigation. He duly produced a report to that effect, which he then forwarded to the Brigade. The report was considered by Brigadier Jones, who also discussed the matter with his Deputy Chief of Staff, his legal adviser and Colonel G. As a result, Brigadier Jones came to the conclusion that the incident fell within the rules of engagement and required no further investigation.
47. The fourth applicant is the brother of Waleed Fayay Muzban, aged 43, who was shot and fatally injured on the night of 24 August 2003 by Lance Corporal S. in the Al-Maqaal area of Basra.
48. The fourth applicant was not present when his brother was shot, but he claims that the incident was witnessed by his neighbours. In his witness statement he stated that his understanding was that his brother was returning home from work at about 8.30 p.m. on the evening in question. He was driving a minibus along a street called Souq Hitteen, near where he and the fourth applicant lived. For no apparent reason, according to the applicant’s statement, the minibus “came under a barrage of bullets”, as a result of which Waleed was mortally wounded in the chest and stomach.
49. Lance Corporal S. was a member of a patrol carrying out a check around the perimeter of a Coalition military base (Fort Apache), where three Royal Military Police officers had been killed by gunfire from a vehicle the previous day. According to the British soldier’s account of the incident, Lance Corporal S. became suspicious of a minibus, with curtains over its windows, that was being driven towards the patrol at a slow speed with its headlights dipped. When the vehicle was signalled to stop, it appeared to be trying to evade the soldiers so Lance Corporal S. pointed his weapon at the driver and ordered him to stop. The vehicle then stopped and Lance Corporal S. approached the driver’s door and greeted the driver (the fourth applicant’s brother). The driver reacted in an aggressive manner and appeared to be shouting over his shoulder to people in the curtained-off area in the back of the vehicle. When Lance Corporal S. tried to look into the back of the vehicle, the driver pushed him away by punching him in the chest. The driver then shouted into the back of the vehicle and made a grab for Lance Corporal S.’s weapon. Lance Corporal S. had to use force to pull himself free. The driver then accelerated away, swerving in the direction of various other members of the patrol as he did so. Lance Corporal S. fired at the vehicle’s tyres and it came to a halt about 100 metres from the patrol. The driver turned and again shouted into the rear of the vehicle. He appeared to be reaching for a weapon. Lance Corporal S. believed that his team was about to be fired on by the driver and others in the vehicle. He therefore fired about five aimed shots. As the vehicle sped off, Lance Corporal S. fired another two shots at the rear of the vehicle. After a short interval, the vehicle screeched to a halt. The driver got out and shouted at the British soldiers. He was ordered to lie on the ground. The patrol then approached the vehicle to check for other armed men. The vehicle proved to be empty. The driver was found to have three bullet wounds in his back and hip. He was given first aid and then taken to the Czech military hospital where he died later that day or the following day.
50. The Special Investigation Branch commenced an investigation on 29 August 2003. The investigators recovered fragments of bullets, empty bullet cases and took digital photographs of the scene. The vehicle was recovered and transported to the United Kingdom. The deceased’s body had been returned to the family for burial and no post mortem had been carried out, so the Special Investigation Branch took statements from the two Iraqi surgeons who had operated on him. A meeting was arranged with the family to seek their consent for an exhumation and post mortem, but this was delayed. Nine military witnesses involved in the incident were interviewed and had statements taken and a further four individuals were interviewed but found to have no evidence to offer. Lance Corporal S. was not, however, questioned. Since he was suspected by the Special Investigation Branch of having acted contrary to the rules of engagement, it was Special Investigation Branch practice not to interview him until there was enough evidence to charge him. A forensic examination was carried out at the scene on 6 September 2003.
51. On 29 August 2003 Colonel G. sent his initial report concerning the incident to Brigadier Moore. In it he stated that he was satisfied that Lance Corporal S. believed that he was acting lawfully within the rules of engagement. However, Colonel G. went on to express the view that it was a complex case that would benefit from a Special Investigation Branch investigation. After Brigadier Moore had considered Colonel G.’s report, discussed the matter with his Deputy Chief of Staff and taken legal advice, it was decided that the matter could be resolved with a unit-level investigation, subject to a number of queries being satisfactorily answered. As a result, Colonel G. produced a further report dated 12 September 2003, in which he dealt with the various queries and concluded that a Special Investigation Branch investigation was no longer required. After discussing the matter again with his Deputy Chief of Staff and having taken further legal advice, Brigadier Moore concluded that the case fell within the rules of engagement.
52. By this stage, Brigadier Moore had been informed that the Special Investigation Branch had commenced an investigation into the incident. On 17 September 2003 Colonel G. wrote to the Special Investigation Branch asking them to terminate the investigation. The same request was made by Brigadier Moore through his Chief of Staff during a meeting with the Senior Investigating Officer from the Special Investigation Branch. The Special Investigation Branch investigation was terminated on 23 September 2003. The deceased’s family received USD 1,400 from the British Army Goodwill Payment Committee and a further USD 3,000 in compensation for the minibus.
53. Following the fourth applicant’s application for judicial review (see paragraph 73 below), the case was reviewed by senior investigation officers in the Special Investigation Branch and the decision was taken to reopen the investigation. The investigation was reopened on 7 June 2004 and completed on 3 December 2004, despite difficulties caused by the very dangerous conditions in Iraq at that time.
54. On completing the investigation, the Special Investigation Branch reported to the soldier’s Commanding Officer, who referred the case to the Army Prosecuting Authority in February 2005. The Army Prosecuting Authority decided that a formal preliminary examination of the witnesses should be held, in order to clarify any uncertainties and ambiguities in the evidence. Depositions were taken by the Army Prosecuting Authority from the soldiers who had witnessed the shooting, and who were the only known witnesses. Advice was obtained from an independent senior counsel, who advised that there was no realistic prospect of conviction, since there was no realistic prospect of establishing that Lance Corporal S. had not fired in selfdefence. The file was sent to the Attorney General, who decided not to exercise his jurisdiction to order a criminal prosecution.
55. The fifth applicant is the father of Ahmed Jabbar Kareem Ali, who died on 8 May 2003, aged 15.
56. According to the statements made by the fifth applicant for the purpose of United Kingdom court proceedings, on 8 May 2003 his son did not return home at 1.30 p.m. as expected. The fifth applicant went to look for him at Al-Saad Square, where he was told that British soldiers had arrested some Iraqi youths earlier in the day. The applicant continued to search for his son and was contacted the following morning by A., another young Iraqi, who told the applicant that he, the applicant’s son and two others had been arrested by British soldiers the previous day, beaten up and forced into the waters of the Shatt Al-Arab. Later, on 9 May 2003, the applicant’s brother informed “the British police” about the incident and was requested to surrender Ahmed’s identity card. Having spent several days waiting and searching, the applicant found his son’s body in the water on 10 May 2003.
57. The applicant immediately took his son’s body to “the British police station”, where he was told to take the body to the local hospital. The Iraqi doctor on duty told the applicant that he was not qualified to carry out a post mortem and that there were no pathologists available. The applicant decided to bury his son, since in accordance with Islamic practice burial should take place within twenty-four hours of death.
58. About ten to fifteen days after his son’s funeral, the applicant returned to “the British police station” to ask for an investigation, but he was informed that it was not the business of “the British police” to deal with such matters. He returned to the “police station” some days later, and was informed that the Royal Military Police wished to contact him and that he should go to the presidential palace. The following day, the applicant met with Special Investigation Branch officers at the presidential palace and was informed that an investigation would be commenced.
59. The Special Investigation Branch interviewed A. and took a statement from him. They took statements from the applicant and other family members. At least a month after the incident, the investigators went to Al-Saad Square and retrieved clothing belonging to the applicant’s son and to the other young men who had been arrested at the same time. At the end of the forty-day mourning period, the applicant consented to his son’s body being exhumed for post-mortem examination, but it was not possible at that point to establish either whether Ahmed had been beaten prior to death or what had been the cause of death. The applicant contends that he was never given an explanation as to the post-mortem findings and that he was not kept fully informed of the progress of the investigation in general, since many of the documents he was given were in English or had been badly translated into Arabic.
60. The applicant claims that eighteen months elapsed after the exhumation of his son’s body during which time he had no contact with the investigators. In August 2005 he was informed that four soldiers had been charged with manslaughter and that a trial would take place in England. The court martial was held between September 2005 and May 2006. By that time, three of the seven soldiers who had been accused of his homicide had left the army, and a further two were absent without leave. It was the prosecution case that the soldiers had assisted Iraqi police officers to arrest the four youths on suspicion of looting and that they had driven them to the river and forced them in at gunpoint “to teach them a lesson”. The applicant and A. gave evidence to the court martial in April 2006. The applicant found the trial process confusing and intimidating and he was left with the impression that the court was biased in favour of the accused. A. gave evidence that the applicant’s son had appeared to be in distress in the water, but that the soldiers had driven away without helping him. However, he was not able to identify the defendants as the soldiers involved. The defendants denied any responsibility for the death and were acquitted because A.’s evidence was found to be inconsistent and unreliable.
61. The applicant’s son’s case was one of the six cases investigated in the Aitken Report (see paragraph 69 below). Under the heading “Learning lessons from discipline cases” the report stated:
“... we know that two initial police reports were produced in May 2003 relating to allegations that, on two separate occasions but within the space of just over a fortnight, Iraqis had drowned in the Shat’ al-Arab at the hands of British soldiers. That one of those cases did not subsequently proceed to trial is irrelevant: at the time, an ostensibly unusual event was alleged to have occurred twice in a short space of time. With all their other duties, the commanders on the ground cannot reasonably be blamed for failing to identify what may or may not have been a trend; but a more immediate, effective system for referring that sort of information to others with the capacity to analyse it might have identified such a trend. In fact, the evidence suggests that these were two isolated incidents; but had they been a symptom of a more fundamental failing, they might have been overlooked. By comparison, if there had been two reports of a new weapon being used by insurgents to attack British armoured vehicles within a fortnight, it is certain that the lessons learned process would have identified its significance, determined the counter-measures needed to combat it, and quickly disseminated new procedures to mitigate the risk. The fact that this process does not apply to disciplinary matters is only partly explained by the need for confidentiality and the preservation of evidence; but it is a failure in the process that could be fairly easily rectified without compromising the fundamental principle of innocence until proven guilty.”
The report continued, under the heading “Delay”:
“The amount of time taken to resolve some of the cases with which this report is concerned has been unacceptable. ... The court martial in connection with the death of Ahmed Jabbar Kareem did not convene until September 2005, twenty-eight months after he died; by that time, three of the seven soldiers who had been accused of his murder had left the army, and a further two were absent without leave.
In most cases, it is inappropriate for the army to take administrative action against any officer or soldier until the disciplinary process has been completed, because of the risk of prejudicing the trial. When that disciplinary process takes as long as it has taken in most of these cases, then the impact of any subsequent administrative sanctions is significantly reduced – indeed, such sanctions are likely to be counterproductive. Moreover, the longer the disciplinary process takes, the less likely it is that the chain of command will take proactive measures to rectify the matters that contributed to the commission of the crimes in the first place.”
62. The fifth applicant brought civil proceedings against the Ministry of Defence for damages in respect of his son’s death. The claim was settled without going to hearing, by the payment of 115,000 pounds sterling (GBP) on 15 December 2008. In addition, on 20 February 2009 Major General Cubbitt wrote to the fifth applicant and formally apologised on behalf of the British army for its role in his son’s death.
63. The sixth applicant is a Colonel in the Basra police force. His son, Baha Mousa, was aged 26 when he died while in the custody of the British army, three days after having been arrested by soldiers on 14 September 2003.
64. According to the sixth applicant, on the night of 13 to 14 September 2003 his son had been working as a receptionist at the Ibn Al-Haitham Hotel in Basra. Early in the morning of 14 September, the applicant went to the hotel to pick his son up from work. On his arrival he noticed that a British unit had surrounded the hotel. The applicant’s son and six other hotel employees were lying on the floor of the hotel lobby with their hands behind their heads. The applicant expressed his concern to the lieutenant in charge of the operation, who reassured him that it was a routine investigation that would be over in a couple of hours. On the third day after his son had been detained, the sixth applicant was visited by a Royal Military Police unit. He was told that his son had been killed in custody at a British military base in Basra. He was asked to identify the corpse. The applicant’s son’s body and face were covered in blood and bruises; his nose was broken and part of the skin of his face had been torn away.
65. One of the other hotel employees who was arrested on 14 September 2003 stated in a witness statement prepared for the United Kingdom domestic court proceedings that, once the prisoners had arrived at the base, the Iraqi detainees were hooded, forced to maintain stress positions, denied food and water and kicked and beaten. During the detention, Baha Mousa was taken into another room, where he could be heard screaming and moaning.
66. Late on 15 September 2003 Brigadier Moore, who had taken part in the operation in which the hotel employees had been arrested, was informed that Baha Mousa was dead and that other detainees had been ill-treated. The Special Investigation Branch was immediately called in to investigate the death. Since local hospitals were on strike, a pathologist was flown in from the United Kingdom. Baha Mousa was found to have ninety-three identifiable injuries on his body and to have died of asphyxiation. Eight other Iraqis had also been inhumanely treated, with two requiring hospital treatment. The investigation was concluded in early April 2004 and the report distributed to the unit’s chain of command.
67. On 14 December 2004 the Divisional Court held that the inquiry into the applicant’s son’s death had not been effective (see paragraph 77 below). On 21 December 2005 the Court of Appeal decided to remit the question to the Divisional Court since there had been further developments (see paragraph 81 below).
68. On 19 July 2005 seven British soldiers were charged with criminal offences in connection with Baha Mousa’s death. On 19 September 2006, at the start of the court martial, one of the soldiers pleaded guilty to the war crime of inhumane treatment but not guilty to manslaughter. On 14 February 2007 charges were dropped against four of the seven soldiers and on 13 March 2007 the other two soldiers were acquitted. On 30 April 2007 the soldier convicted of inhumane treatment was sentenced to one year’s imprisonment and dismissal from the army.
69. On 25 January 2008 the Ministry of Defence published a report written by Brigadier Robert Aitken concerning six cases of alleged deliberate abuse and killing of Iraqi civilians, including the deaths of the fifth and sixth applicants’ sons (“the Aitken Report”).
70. The applicant brought civil proceedings against the Ministry of Defence, which concluded in July 2008 by the formal and public acknowledgement of liability and the payment of GBP 575,000 in compensation.
71. In a written statement given in Parliament on 14 May 2008, the Secretary of State for Defence announced that there would be a public inquiry into the death of Baha Mousa. The inquiry is chaired by a retired Court of Appeal judge, with the following terms of reference:
“To investigate and report on the circumstances surrounding the death of Baha Mousa and the treatment of those detained with him, taking account of the investigations which have already taken place, in particular where responsibility lay for approving the practice of conditioning detainees by any members of the 1st Battalion, The Queen’s Lancashire Regiment in Iraq in 2003, and to make recommendations.”
At the time of adoption of the present judgment, the inquiry had concluded the oral hearings but had not yet delivered its report.
72. On 26 March 2004 the Secretary of State for Defence decided, in connection with the deaths of thirteen Iraqi civilians including the relatives of the six applicants, (1) not to conduct independent inquiries into the deaths; (2) not to accept liability for the deaths; and (3) not to pay just satisfaction.
73. The thirteen claimants applied for judicial review of these decisions, seeking declarations that both the procedural and the substantive obligations of Article 2 (and, in the case of the sixth applicant, Article 3) of the Convention had been violated as a result of the deaths and the Secretary of State’s refusal to order any investigation. On 11 May 2004 a judge of the Divisional Court directed that six test cases would proceed to hearing (including the cases of the first, second, third, fourth and sixth applicants) and that the other seven cases (including that of the fifth applicant) would be stayed pending the resolution of the preliminary issues.
74. On 14 December 2004 the Divisional Court rejected the claims of the first four applicants but accepted the claim of the sixth applicant ([2004] EWHC 2911 (Admin)). Having reviewed this Court’s case-law, in particular Banković and Others v. Belgium and Others ((dec.) [GC], no. 52207/99, ECHR 2001-XII), it held that, essentially, jurisdiction under Article 1 of the Convention was territorial, although there were exceptions. One exception applied where a State Party had effective control of an area outside its own territory. This basis of jurisdiction applied only where the territory of one Contracting State was controlled by another Contracting State, since the Convention operated essentially within its own regional sphere and permitted no vacuum within that space. This basis of jurisdiction could not, therefore, apply in Iraq.
75. There was an additional exception, which arose from the exercise of authority by a Contracting State’s agents anywhere in the world, but this was limited to specific cases recognised by international law and identified piecemeal in the Court’s case-law. No general rationale in respect of this group of exceptions was discernable from the Court’s case-law. However, the instances recognised so far arose out of the exercise of State authority in or from a location which had a discrete quasi-territorial quality, or where the State agent’s presence in the foreign State was consented to by that State and protected by international law, such as embassies, consulates, vessels and aircraft registered in the respondent State. A British military prison, operating in Iraq with the consent of the Iraqi sovereign authorities and containing arrested suspects, could be covered by this narrow exception. It was arguable that Öcalan v. Turkey (no. 46221/99, 12 March 2003), also fell into this category, since the applicant was arrested in a Turkish aircraft and taken immediately to Turkey. However, the Divisional Court did not consider that the Chamber judgment in Öcalan should be treated as “illuminating”, since Turkey had not raised any objection based on lack of jurisdiction at the admissibility stage.
76. It followed that the deaths as a result of military operations in the field, such as those complained of by the first four applicants, did not fall within the United Kingdom’s jurisdiction under Article 1 of the Convention, but that the death of the sixth applicant’s son, in a British military prison, did. The Divisional Court further held that the scope of the Human Rights Act 1998 was identical to that of the Convention for these purposes.
77. The Divisional Court found that there had been a breach of the investigative duty under Articles 2 and 3 of the Convention in respect of the sixth applicant’s son since, by July 2004, some ten months after the killing, the results of the investigation were unknown and inconclusive. The judge commented that:
“329. ... Although there has been evidence of a rather general nature about the difficulties of conducting investigations in Iraq at that time – about basic security problems involved in going to Iraqi homes to interview people, about lack of interpreters, cultural differences, logistic problems, lack of records, and so forth – without any further understanding of the outcome of the [Special Investigation Branch’s] report, it is impossible to understand what, if any, relevance any of this has to a death which occurred not in the highways or byways of Iraq, but in a military prison under the control of British forces. ...
330. Although Captain Logan says that identity parades were logistically very difficult, detainees were moved to a different location, and some military witnesses had returned to the UK, she also says that these problems only delayed the process but did not prevent it taking place ‘satisfactorily’ ... There is nothing else before us to explain the dilatoriness of the investigative process: which might possibly be compared with the progress, and open public scrutiny, which we have noted seems to have been achieved with other investigations arising out of possible offences in prisons under the control of US forces. As for the [Special Investigation Branch’s] report itself, on the evidence before us ... that would not contain any decision as to the facts or any conclusions as to what has or might have happened.
331. In these circumstances we cannot accept [counsel for the Government’s] submission that the investigation has been adequate in terms of the procedural obligation arising out of Article 2 of the Convention. Even if an investigation solely in the hands of the [Special Investigation Branch] might be said to be independent, on the grounds that the [Special Investigation Branch] are hierarchically and practically independent of the military units under investigation, as to which we have doubts in part because the report of the [Special Investigation Branch] is to the unit chain of command itself, it is difficult to say that the investigation which has occurred has been timely, open or effective.”
In respect of the other five deaths, the judge considered that, if he were wrong on the jurisdiction issue and the claims did fall within the scope of the Convention, the investigative duty under Article 2 had not been met, for the following reasons:
“337. ... in all these cases, as in the case of Mr Mousa, the United Kingdom authorities were proceeding on the basis that the Convention did not apply. Thus the immediate investigations were in each case conducted, as a matter of policy, by the unit involved: only in case 4, that concerning Mr Waleed Muzban, was there any involvement of the [Special Investigation Branch], and that was stood down, at any rate before being reopened (at some uncertain time) upon a review of the file back in the UK. The investigations were therefore not independent. Nor were they effective, for they essentially consisted only in a comparatively superficial exercise, based on the evidence of the soldiers involved themselves, and even then on a paucity of interviews or witness statements, an exercise which was one-sided and omitted the assistance of forensic evidence such as might have become available from ballistic or medical expertise.
...
339. In connection with these cases, [counsel for the Government’s] main submission was that, in extremely difficult situations, both in operational terms in the field and in terms of post-event investigations, the army and the authorities had done their best. He particularly emphasised the following aspects of the evidence. There was no rule of law in Iraq; at the start of the occupation there was no police force at all, and at best the force was totally inadequate, as well as being under constant attack; although the Iraqi courts were functioning, they were subject to intimidation; there was no local civil inquest system or capability; the local communications systems were not functioning; there were no mortuaries, no post-mortem system, no reliable pathologists; the security situation was the worst ever experienced by seasoned soldiers; there was daily fighting between tribal and criminal gangs; the number of troops available were small; and cultural differences exacerbated all these difficulties.
340. We would not discount these difficulties, which cumulatively must have amounted to grave impediments for anyone concerned to conduct investigations as they might have liked to have carried them out. However, irrespective of [counsel for the applicants’] submission, in reliance on the Turkish cases, that security problems provide no excuse for a failure in the Article 2 investigative duty, we would conclude that, on the hypothesis stated, the investigations would still not pass muster. They were not independent; they were one-sided; and the commanders concerned were not trying to do their best according to the dictates of Article 2.
341. That is not to say, however, that, in other circumstances, we would ignore the strategic difficulties of the situation. The Turkish cases are all concerned with deaths within the State Party’s own territory. In that context, the Court was entitled to be highly sceptical about the State’s own professions of difficulties in an investigative path which it in any event may hardly have chosen to follow. It seems to us that this scepticism cannot be so easily transplanted in the extraterritorial setting. ...”
78. The first four applicants appealed against the Divisional Court’s finding that their relatives did not fall within the United Kingdom’s jurisdiction. The Secretary of State also crossappealed against the finding in relation to the sixth applicant’s son; although he accepted before the Court of Appeal that an Iraqi in the actual custody of British soldiers in a military detention centre in Iraq was within the United Kingdom’s jurisdiction under Article 1 of the Convention, he contended that the Human Rights Act had no extraterritorial effect and that the sixth applicant’s claim was not, therefore, enforceable in the national courts.
79. On 21 December 2005 the Court of Appeal dismissed the appeals and the cross-appeal ([2005] EWCA Civ 1609). Having reviewed the Court’s case-law on jurisdiction under Article 1 of the Convention, Brooke LJ, who gave the leading judgment, held that a State could exercise extraterritorial jurisdiction when it applied control and authority over a complainant (which he termed “State agent authority”, abbreviated to “SAA”) and when it held effective control of an area outside its borders (“effective control of an area” or “ECA”), observing as follows:
“80. I would therefore be more cautious than the Divisional Court in my approach to the Banković [and Others] judgment. It seems to me that it left open both the ECA and SAA approaches to extraterritorial jurisdiction, while at the same time emphasising (in paragraph 60) that because an SAA approach might constitute a violation of another State’s sovereignty (for example, when someone is kidnapped by the agents of a State on the territory of another State without that State’s invitation or consent), this route to any recognition that extraterritorial jurisdiction has been exercised within the meaning of an international treaty should be approached with caution.”
He considered, inter alia, the cases of Öcalan v. Turkey ([GC], no. 46221/99, ECHR 2005-IV); Freda v. Italy ((dec.), no. 8916/80, Commission decision of 7 October 1980, Decisions and Reports (DR) 21, p. 250); and Sánchez Ramirez v. France ((dec.), no. 28780/95, Commission decision of 24 June 1996, DR 86-A, p. 155); and observed that these cases had nothing to do with the principle of public international law relating to activities within aircraft registered with a State flying over the territory of another State. Instead, the findings of jurisdiction in these cases were examples of the “State agent authority” doctrine applying when someone was within the control and authority of agents of a Contracting State, even outside the espace juridique of the Council of Europe, and whether or not the host State consented to the exercise of control and authority on its soil. Applying the relevant principles to the facts of the case, he concluded that the sixth applicant’s son came within the control and authority of the United Kingdom, and therefore its jurisdiction, from the time he was arrested at the hotel. The relatives of the other claimants had not been under the control and authority of British troops at the time when they were killed, and were not therefore within the United Kingdom’s jurisdiction. He concluded in this connection that:
“110. ... It is essential, in my judgment, to set rules which are readily intelligible. If troops deliberately and effectively restrict someone’s liberty he is under their control. This did not happen in any of these five cases.”
80. He then examined whether, on the facts, it could be said that British troops were in effective control of Basra City during the period in question, such as to fix the United Kingdom with jurisdiction under the “effective control of an area” doctrine. On this point, Brooke LJ concluded as follows:
“119. Basra City was in the [Coalition Provisional Authority] regional area called ‘CPA South’. During the period of military occupation there was a significant degree of British responsibility and authority in CPA South, although its staff were drawn from five different countries and until the end of July 2003 the regional coordinator was a Dane. Indeed, only one of the four governorate teams in CPA South was headed by a British coordinator. However, although the chain of command for the British military presence in Iraq led ultimately to a US general, the Al-Basra and Maysan provinces were an area of direct British military responsibility. As I have already said ..., the Secretary of State accepts that the UK was an Occupying Power within the meaning of Article 42 of the Hague Regulations ..., at least in those areas of southern Iraq, and particularly Basra City, where British troops exercised sufficient authority for this purpose.
120. But whatever may have been the position under the Hague Regulations, the question this court has to address is whether British troops were in effective control of Basra City for ECA purposes. The situation in August to November 2003 contrasts starkly with the situations in northern Cyprus and in the Russian-occupied part of Moldova which feature in Strasbourg case-law. In each of those cases part of the territory of a Contracting State was occupied by another Contracting State which had every intention of exercising its control on a long-term basis. The civilian administration of those territories was under the control of the Occupying State, and it deployed sufficient troops to ensure that its control of the area was effective.
121. [The statement of Brigadier Moore, whose command included the British forces in the Basra area between May and November 2003] tells a very different story. He was not provided with nearly enough troops and other resources to enable his brigade to exercise effective control of Basra City. ... [H]e described how the local police would not uphold the law. If British troops arrested somebody and gave them to the Iraqi police, the police would hand them over to the judiciary, who were themselves intimidated by the local tribes, and the suspected criminals were back on the streets within a day or two. This state of affairs gave the British no confidence in the local criminal justice system. It also diluted their credibility with local people. Although British troops arranged local protection for the judges, this made little difference. The prisons, for their part, were barely functioning.
122. After describing other aspects of the highly volatile situation in which a relatively small number of British military personnel were trying to police a large city as best they could, Brig[adier] Moore said ...:
‘The combination of terrorist activity, the volatile situation and the ineffectiveness of Iraqi security forces meant that the security situation remained on a knife-edge for much of our tour. Despite our high work rate and best efforts, I felt that at the end of August 2003 we were standing on the edge of an abyss. It was only when subsequent reinforcements arrived ... and we started to receive intelligence from some of the Islamic parties that I started to regain the initiative.’
123. Unlike the Turkish army in northern Cyprus, the British military forces had no control over the civil administration of Iraq. ...
124. In my judgment it is quite impossible to hold that the UK, although an Occupying Power for the purposes of the Hague Regulations and [the] Geneva IV [Convention], was in effective control of Basra City for the purposes of [the European Court’s] jurisprudence at the material time. If it had been, it would have been obliged, pursuant to the Banković [and Others] judgment, to secure to everyone in Basra City the rights and freedoms guaranteed by the [Convention]. One only has to state that proposition to see how utterly unreal it is. The UK possessed no executive, legislative or judicial authority in Basra City, other than the limited authority given to its military forces, and as an Occupying Power it was bound to respect the laws in force in Iraq unless absolutely prevented (see Article 43 of the Hague Regulations ...). It could not be equated with a civil power: it was simply there to maintain security, and to support the civil administration in Iraq in a number of different ways ...”
Sedley LJ observed, in connection with this issue:
“194. On the one hand, it sits ill in the mouth of a State which has helped to displace and dismantle by force another nation’s civil authority to plead that, as an Occupying Power, it has so little control that it cannot be responsible for securing the population’s basic rights. ... [However,] the fact is that it cannot: the invasion brought in its wake a vacuum of civil authority which British forces were and still are unable to fill. On the evidence before the Court they were, at least between mid-2003 and mid-2004, holding a fragile line against anarchy.”
81. The Court of Appeal unanimously concluded that, save for the death of the sixth applicant’s son, which fell within the “State agent authority” exception, the United Kingdom did not have jurisdiction under Article 1 of the Convention. It decided that the sixth applicant’s claim also fell within the scope of the Human Rights Act 1998. Since the Divisional Court’s examination of the case, additional information had emerged about the investigation into the death of the sixth applicant’s son, including that courtmartial proceedings were pending against a number of soldiers. The Court of Appeal therefore remitted the question whether there had been an adequate investigation to the Divisional Court for reconsideration following the completion of the court-martial proceedings.
82. Despite his conclusion on jurisdiction, Brooke LJ, at the express invitation of the Government, commented on the adequacy of the investigations carried out into the deaths, as follows:
“139. After all, the first two Articles of the [Convention] merely articulate the contemporary concern of the entire European community about the importance that must always be attached to every human life. ... Needless to say, the obligation to comply with these well-established international human rights standards would require, among other things, a far greater investment in the resources available to the Royal Military Police than was available to them in Iraq, and a complete severance of their investigations from the military chain of command.
140. In other words, if international standards are to be observed, the task of investigating incidents in which a human life is taken by British forces must be completely taken away from the military chain of command and vested in the [Royal Military Police]. It contains the requisite independence so long as it is free to decide for itself when to start and when to cease an investigation, and so long as it reports in the first instance to the [Army Prosecuting Authority] and not to the military chain of command. It must then conduct an effective investigation, and it will be helped in this regard by the passages from [the European Court’s] case-law I have quoted. Many of the deficiencies highlighted by the evidence in this case will be remedied if the [Royal Military Police] perform this role, and if they are also properly trained and properly resourced to conduct their investigations with the requisite degree of thoroughness.”
83. The first four applicants appealed and the Secretary of State crossappealed to the House of Lords, which gave judgment on 13 June 2007 ([2007] UKHL 26). The majority of the House of Lords (Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell and Lord Brown of Eaton-under-Heywood) held that the general purpose of the Human Rights Act 1998 was to provide a remedial structure in domestic law for the rights guaranteed by the Convention, and that the 1998 Act should therefore be interpreted as applying wherever the United Kingdom had jurisdiction under Article 1 of the Convention. Lord Bingham of Cornhill, dissenting, held that the Human Rights Act had no extraterritorial application.
84. In relation to the first four applicants’ complaints, the majority of the House of Lords found that the United Kingdom did not have jurisdiction over the deaths. Because of his opinion that the Human Rights Act had no extraterritorial application, Lord Bingham did not consider it useful to express a view as to whether the United Kingdom exercised jurisdiction within the meaning of Article 1 of the Convention.
85. Lord Brown, with whom the majority agreed, began by observing that ultimately the decision about how Article 1 of the Convention should be interpreted and applied was for the European Court of Human Rights, since the duty of the national court was only to keep pace with the Court’s case-law; there was a danger in a national court construing the Convention too generously in favour of an applicant, since the respondent State had no means of referring such a case to the Court. Lord Brown took as his starting-point the decision of the Grand Chamber in Banković and Others (cited above), which he described as “a watershed authority in the light of which the Strasbourg jurisprudence as a whole has to be re-evaluated”. He considered that the following propositions could be derived from the decision in Banković and Others (paragraph 109 of the House of Lords judgment):
“1. Article 1 reflects an ‘essentially territorial notion of jurisdiction’ (a phrase repeated several times in the Court’s judgment), ‘other bases of jurisdiction being exceptional and requiring special justification in the particular circumstances of each case’ (§ 61). The Convention operates, subject to Article 56, ‘in an essentially regional context and notably in the legal space (espace juridique) of the Contracting States’ (§ 80) (i.e. within the area of the Council of Europe countries).
2. The Court recognises Article 1 jurisdiction to avoid a ‘vacuum in human rights’ protection’ when the territory ‘would normally be covered by the Convention’ (§ 80) (i.e. in a Council of Europe country) where otherwise (as in northern Cyprus) the inhabitants ‘would have found themselves excluded from the benefits of the Convention safeguards and system which they had previously enjoyed’ (§ 80).
3. The rights and freedoms defined in the Convention cannot be ‘divided and tailored’ (§ 75).
4. The circumstances in which the Court has exceptionally recognised the extraterritorial exercise of jurisdiction by a State include:
(i) Where the State ‘through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the government of that territory, exercises all or some of the public powers normally to be exercised by [the government of that territory]’ (§ 71) (i.e. when otherwise there would be a vacuum within a Council of Europe country, the government of that country itself being unable ‘to fulfil the obligations it had undertaken under the Convention’ (§ 80) (as in northern Cyprus)).
(ii) ’[C]ases involving the activities of its diplomatic or consular agents abroad and on board craft and vessels registered in, or flying the flag of, that State [where] customary international law and treaty provisions have recognised the extraterritorial exercise of jurisdiction’ (§ 73).
(iii) Certain other cases where a State’s responsibility ‘could, in principle, be engaged because of acts ... which produced effects or were performed outside their own territory’ (§ 69). Drozd [and Janousek] v. France [and Spain] ([26 June] 1992[, Series A no. 240]) 14 EHRR 745 (at § 91) is the only authority specifically referred to in Banković [and Others] as exemplifying this class of exception to the general rule. Drozd [and Janousek], however, contemplated no more than that, if a French judge exercised jurisdiction extraterritorially in Andorra in his capacity as a French judge, then anyone complaining of a violation of his Convention rights by that judge would be regarded as being within France’s jurisdiction.
(iv) The Soering v. [the] United Kingdom ([7 July] 1989[, Series A no. 161]) 11 EHRR 439 line of cases, the Court pointed out, involves action by the State whilst the person concerned is ‘on its territory, clearly within its jurisdiction’ ([Banković and Others,] § 68) and not, therefore, the exercise of the State’s jurisdiction abroad.”
Lord Brown referred to the Öcalan, Freda and Sánchez Ramirez line of cases (cited above), in each of which the applicant was forcibly removed from a country outside the Council of Europe, with the full cooperation of the foreign authorities, to stand trial in the respondent State. He observed that this line of cases concerning “irregular extraditions” constituted one category of “exceptional” cases expressly contemplated by Banković and Others (cited above), as having “special justification” for extraterritorial jurisdiction under Article 1 of the Convention. He did not consider that the first four applicants’ cases fell into any of the exceptions to the territorial principle so far recognised by the Court.
86. Lord Brown next considered the Court’s judgment in Issa and Others v. Turkey (no. 31821/96, § 71, 16 November 2004), on which the applicants relied, and held as follows:
“127. If and in so far as Issa [and Others] is said to support the altogether wider notions of Article 1 jurisdiction contended for by the appellants on this appeal, I cannot accept it. In the first place, the statements relied upon must be regarded as obiter dicta. Secondly, as just explained, such wider assertions of jurisdiction are not supported by the authorities cited (at any rate, those authorities accepted as relevant by the Grand Chamber in Banković [and Others]). Thirdly, such wider view of jurisdiction would clearly be inconsistent both with the reasoning in Banković [and Others] and, indeed, with its result. Either it would extend the ‘effective control’ principle beyond the Council of Europe area (where alone it had previously been applied, as has been seen, to northern Cyprus, to the Ajarian Autonomous Republic in Georgia and to Transdniestria) to Iraq, an area (like the FRY [Federal Republic of Yugoslavia] considered in Banković [and Others]) outside the Council of Europe – and, indeed, would do so contrary to the inescapable logic of the Court’s case-law on Article 56. Alternatively it would stretch to breaking point the concept of jurisdiction extending extraterritorially to those subject to a State’s ‘authority and control’. It is one thing to recognise as exceptional the specific narrow categories of cases I have sought to summarise above; it would be quite another to accept that whenever a Contracting State acts (militarily or otherwise) through its agents abroad, those affected by such activities fall within its Article 1 jurisdiction. Such a contention would prove altogether too much. It would make a nonsense of much that was said in Banković [and Others], not least as to the Convention being ‘a constitutional instrument of European public order’, operating ‘in an essentially regional context’, ‘not designed to be applied throughout the world, even in respect of the conduct of Contracting States’ (§ 80). It would, indeed, make redundant the principle of ‘effective control’ of an area: what need for that if jurisdiction arises in any event under a general principle of ‘authority and control’ irrespective of whether the area is (a) effectively controlled or (b) within the Council of Europe?
128. There is one other central objection to the creation of the wide basis of jurisdiction here contended for by the appellants under the rubric ‘control and authority’, going beyond that arising in any of the narrowly recognised categories already discussed and yet short of that arising from the effective control of territory within the Council of Europe area. Banković [and Others] (and later Assanidze [v. Georgia [GC], no. 71503/01, ECHR 2004II]) stands, as stated, for the indivisible nature of Article 1 jurisdiction: it cannot be ‘divided and tailored’. As Banković [and Others] had earlier pointed out (at § 40) ‘the applicant’s interpretation of jurisdiction would invert and divide the positive obligation on Contracting States to secure the substantive rights in a manner never contemplated by Article 1 of the Convention’. When, moreover, the Convention applies, it operates as ‘a living instrument’. Öcalan provides an example of this, a recognition that the interpretation of Article 2 has been modified consequent on ‘the territories encompassed by the member States of the Council of Europe [having] become a zone free of capital punishment’ (§ 163). (Paragraphs 64 and 65 of Banković [and Others], I may note, contrast on the one hand ‘the Convention’s substantive provisions’ and ‘the competence of the Convention organs’, to both of which the ‘living instrument’ approach applies and, on the other hand, the scope of Article 1 – ‘the scope and reach of the entire Convention’ – to which it does not.) Bear in mind too the rigour with which the Court applies the Convention, well exemplified by the series of cases from the conflict zone of south-eastern Turkey in which, the State’s difficulties notwithstanding, no dilution has been permitted of the investigative obligations arising under Articles 2 and 3.
129. The point is this: except where a State really does have effective control of territory, it cannot hope to secure Convention rights within that territory and, unless it is within the area of the Council of Europe, it is unlikely in any event to find certain of the Convention rights it is bound to secure reconcilable with the customs of the resident population. Indeed it goes further than that. During the period in question here it is common ground that the UK was an Occupying Power in southern Iraq and bound as such by [the] Geneva IV [Convention] and by the Hague Regulations. Article 43 of the Hague Regulations provides that the occupant ‘shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country’. The appellants argue that occupation within the meaning of the Hague Regulations necessarily involves the occupant having effective control of the area and so being responsible for securing there all Convention rights and freedoms. So far as this being the case, however, the occupants’ obligation is to respect ‘the laws in force’, not to introduce laws and the means to enforce them (for example, courts and a justice system) such as to satisfy the requirements of the Convention. Often (for example where Sharia law is in force) Convention rights would clearly be incompatible with the laws of the territory occupied.”
87. Lord Rodger (at paragraph 83), with whom Baroness Hale agreed, and Lord Carswell (paragraph 97) expressly held that the United Kingdom was not in effective control of Basra City and the surrounding area for purposes of jurisdiction under Article 1 of the Convention at the relevant time.
88. The Secretary of State accepted that the facts of the sixth applicant’s case fell within the United Kingdom’s jurisdiction under Article 1 of the Convention. The parties therefore agreed that if (as the majority held) the jurisdictional scope of the Human Rights Act was the same as that of the Convention, the sixth applicant’s case should be remitted to the Divisional Court, as the Court of Appeal had ordered. In consequence, it was unnecessary for the House of Lords to examine the jurisdictional issue in relation to the death of the sixth applicant’s son. However, Lord Brown, with whom the majority agreed, concluded:
“132. ... As for the sixth case, I for my part would recognise the UK’s jurisdiction over Mr Mousa only on the narrow basis found established by the Divisional Court, essentially by analogy with the extraterritorial exception made for embassies (an analogy recognised too in Hess v. [the] United Kingdom ([no. 6231/73, Commission decision of 28 May] 1975[, Decisions and Reports 2, p. ]72, a Commission decision in the context of a foreign prison which had itself referred to the embassy case of X. v. [Germany, no. 1611/62, Commission decision of 25 September 1965, Yearbook 8, p. 158]). ...”
89. The duties of an Occupying Power can be found primarily in Articles 42 to 56 of the Regulations concerning the Laws and Customs of War on Land (The Hague, 18 October 1907) (“the Hague Regulations”) and Articles 27 to 34 and 47 to 78 of the Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War (of 12 August 1949) (“the Fourth Geneva Convention”), as well as in certain provisions of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), of 8 June 1977 (“Additional Protocol I”).
Articles 42 and 43 of the Hague Regulations provide as follows:
Article 42
“Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.”
Article 43
“The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.”
Article 64 of the Fourth Geneva Convention provides that penal laws may be repealed or suspended by the Occupying Power only where they constitute a threat to the security or an obstacle to the application of the Fourth Geneva Convention. It also details the situations in which the Occupying Power is entitled to introduce legislative measures. These are specifically:
“... provisions which are essential to enable the Occupying Power to fulfil its obligations under the present Convention, to maintain the orderly government of the territory, and to ensure the security of the Occupying Power, of the members and property of the occupying forces or administration, and likewise of the establishments and lines of communication used by them.”
Agreements concluded between the Occupying Power and the local authorities cannot deprive the population of the occupied territory of the protection afforded by international humanitarian law and protected persons themselves can in no circumstances renounce their rights (Fourth Geneva Convention, Articles 8 and 47). Occupation does not create any change in the status of the territory (see Article 4 of Additional Protocol I), which can only be effected by a peace treaty or by annexation followed by recognition. The former sovereign remains sovereign and there is no change in the nationality of the inhabitants.
90. In the proceedings concerning the International Court of Justice’s Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (9 July 2004), Israel denied that the human rights instruments to which it was a party, including the International Covenant on Civil and Political Rights, were applicable to the Occupied Palestinian Territory and asserted (at paragraph 102) that:
“humanitarian law is the protection granted in a conflict situation such as the one in the West Bank and Gaza Strip, whereas human rights treaties were intended for the protection of citizens from their own government in times of peace.”
In order to determine whether the instruments were applicable in the Occupied Palestinian Territory, the International Court of Justice first addressed the issue of the relationship between international humanitarian law and international human rights law, holding as follows:
“106. ... the Court considers that the protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation of the kind to be found in Article 4 of the International Covenant on Civil and Political Rights. As regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law. In order to answer the question put to it, the Court will have to take into consideration both these branches of international law, namely human rights law and, as lex specialis, international humanitarian law.”
The International Court of Justice next considered the question whether the International Covenant on Civil and Political Rights was capable of applying outside the State’s national territory and whether it applied in the Occupied Palestinian Territory. It held as follows (references and citations omitted):
“108. The scope of application of the International Covenant on Civil and Political Rights is defined by Article 2, paragraph 1, thereof, which provides:
‘Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’
This provision can be interpreted as covering only individuals who are both present within a State’s territory and subject to that State’s jurisdiction. It can also be construed as covering both individuals present within a State’s territory and those outside that territory but subject to that State’s jurisdiction. The Court will thus seek to determine the meaning to be given to this text.
109. The Court would observe that, while the jurisdiction of States is primarily territorial, it may sometimes be exercised outside the national territory. Considering the object and purpose of the International Covenant on Civil and Political Rights, it would seem natural that, even when such is the case, States Parties to the Covenant should be bound to comply with its provisions.
The constant practice of the Human Rights Committee is consistent with this. Thus, the Committee has found the Covenant applicable where the State exercises its jurisdiction on foreign territory. It has ruled on the legality of acts by Uruguay in cases of arrests carried out by Uruguayan agents in Brazil or Argentina ... It decided to the same effect in the case of the confiscation of a passport by a Uruguayan consulate in Germany ...
110. The Court takes note in this connection of the position taken by Israel, in relation to the applicability of the Covenant, in its communications to the Human Rights Committee, and of the view of the Committee.
In 1998, Israel stated that, when preparing its report to the Committee, it had had to face the question ‘whether individuals resident in the occupied territories were indeed subject to Israel’s jurisdiction’ for purposes of the application of the Covenant ... Israel took the position that ‘the Covenant and similar instruments did not apply directly to the current situation in the occupied territories’ ...
The Committee, in its concluding observations after examination of the report, expressed concern at Israel’s attitude and pointed ‘to the long-standing presence of Israel in [the occupied] territories, Israel’s ambiguous attitude towards their future status, as well as the exercise of effective jurisdiction by Israeli security forces therein’ ... In 2003 in face of Israel’s consistent position, to the effect that ‘the Covenant does not apply beyond its own territory, notably in the West Bank and Gaza ...’, the Committee reached the following conclusion:
‘in the current circumstances, the provisions of the Covenant apply to the benefit of the population of the occupied territories, for all conduct by the State Party’s authorities or agents in those territories that affect the enjoyment of rights enshrined in the Covenant and fall within the ambit of State responsibility of Israel under the principles of public international law’ ...
111. In conclusion, the Court considers that the International Covenant on Civil and Political Rights is applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory.”
In addition, the International Court of Justice appeared to assume that, even in respect of extraterritorial acts, it would in principle be possible for a State to derogate from its obligations under the International Covenant on Civil and Political Rights, Article 4 § 1 of which provides:
“In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.”
Thus, in paragraph 136 of its Advisory Opinion, having considered whether the acts in question were justified under international humanitarian law on grounds of military exigency, the International Court of Justice held:
“136. The Court would further observe that some human rights conventions, and in particular the International Covenant on Civil and Political Rights, contain provisions which States Parties may invoke in order to derogate, under various conditions, from certain of their conventional obligations. In this respect, the Court would however recall that the communication notified by Israel to the Secretary-General of the United Nations under Article 4 of the International Covenant on Civil and Political Rights concerns only Article 9 of the Covenant, relating to the right to freedom and security of person (see paragraph 127 above); Israel is accordingly bound to respect all the other provisions of that instrument.”
91. In its judgment Armed Activities on the Territory of the Congo (Democratic Republic of the Congo (DRC) v. Uganda) of 19 December 2005, the International Court of Justice considered whether, during the relevant period, Uganda was an “Occupying Power” of any part of the territory of the Democratic Republic of the Congo, within the meaning of customary international law, as reflected in Article 42 of the Hague Regulations (§§ 172-73 of the judgment). The International Court of Justice found that Ugandan forces were stationed in the province of Ituri and exercised authority there, in the sense that they had substituted their own authority for that of the Congolese government (§§ 174-76). The International Court of Justice continued:
“178. The Court thus concludes that Uganda was the Occupying Power in Ituri at the relevant time. As such it was under an obligation, according to Article 43 of the Hague Regulations of 1907, to take all the measures in its power to restore, and ensure, as far as possible, public order and safety in the occupied area, while respecting, unless absolutely prevented, the laws in force in the DRC. This obligation comprised the duty to secure respect for the applicable rules of international human rights law and international humanitarian law, to protect the inhabitants of the occupied territory against acts of violence, and not to tolerate such violence by any third party.
179. The Court, having concluded that Uganda was an Occupying Power in Ituri at the relevant time, finds that Uganda’s responsibility is engaged both for any acts of its military that violated its international obligations and for any lack of vigilance in preventing violations of human rights and international humanitarian law by other actors present in the occupied territory, including rebel groups acting on their own account.
180. The Court notes that Uganda at all times has responsibility for all actions and omissions of its own military forces in the territory of the DRC in breach of its obligations under the rules of international human rights law and international humanitarian law which are relevant and applicable in the specific situation.”
The International Court of Justice established the facts relating to the serious breaches of human rights allegedly attributable to Uganda, in the occupied Ituri region and elsewhere (§§ 205-12). In order to determine whether the conduct in question constituted a breach of Uganda’s international obligations, the International Court of Justice recalled its finding in the above-cited Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion that both international humanitarian law and international human rights law would have to be taken into consideration and that international human rights instruments were capable of having an extraterritorial application, “particularly in occupied territories” (§ 216). The International Court of Justice next determined which were “the applicable rules of international human rights law and international humanitarian law”, by listing the international humanitarian and international human rights treaties to which both Uganda and the Democratic Republic of the Congo were party, together with the relevant principles of customary international law (§§ 21719).
92. Article 121 of the Geneva Convention (III) relative to the Treatment of Prisoners of War (of 12 August 1949) (“the Third Geneva Convention”) provides that an official enquiry must be held by the Detaining Power following the suspected homicide of a prisoner of war. Article 131 of the Fourth Geneva Convention provides:
“Every death or serious injury of an internee, caused or suspected to have been caused by a sentry, another internee or any other person, as well as any death the cause of which is unknown, shall be immediately followed by an official enquiry by the Detaining Power. A communication on this subject shall be sent immediately to the Protecting Power. The evidence of any witnesses shall be taken, and a report including such evidence shall be prepared and forwarded to the said Protecting Power. If the enquiry indicates the guilt of one or more persons, the Detaining Power shall take all necessary steps to ensure the prosecution of the person or persons responsible.”
The Geneva Conventions also place an obligation on each High Contracting Party to investigate and prosecute alleged grave breaches of the Conventions, including the wilful killing of protected persons (Articles 49 and 50 of the Geneva Convention (I) for the Amelioration of the Condition of the Sick and Wounded in the Field (of 12 August 1949) (“the First Geneva Convention”); Articles 50 and 51 of the Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (of 12 August 1949) (“the Second Geneva Convention”); Articles 129 and 130 of the Third Geneva Convention; and Articles 146 and 147 of the Fourth Geneva Convention).
93. In his report of 8 March 2006 on extrajudicial, summary or arbitrary executions (E/CN.4/2006/53), the United Nations Special Rapporteur, Philip Alston, observed in connection with the right to life under Article 6 of the International Covenant on Civil and Political Rights in situations of armed conflict and occupation (footnotes omitted):
“36. Armed conflict and occupation do not discharge the State’s duty to investigate and prosecute human rights abuses. The right to life is non-derogable regardless of circumstance. This prohibits any practice of not investigating alleged violations during armed conflict or occupation. As the Human Rights Committee has held, ‘It is inherent in the protection of rights explicitly recognised as non-derogable ... that they must be secured by procedural guarantees ... The provisions of the [International Covenant on Civil and Political Rights] relating to procedural safeguards may never be made subject to measures that would circumvent the protection of non-derogable rights’. It is undeniable that during armed conflicts circumstances will sometimes impede investigation. Such circumstances will never discharge the obligation to investigate – this would eviscerate the non-derogable character of the right to life – but they may affect the modalities or particulars of the investigation. In addition to being fully responsible for the conduct of their agents, in relation to the acts of private actors States are also held to a standard of due diligence in armed conflicts as well as peace. On a case-by-case basis a State might utilise less effective measures of investigation in response to concrete constraints. For example, when hostile forces control the scene of a shooting, conducting an autopsy may prove impossible. Regardless of the circumstances, however, investigations must always be conducted as effectively as possible and never be reduced to mere formality. ...”
94. In its judgment in the Case of the “Mapiripán Massacre” v. Colombia of 15 September 2005, the Inter-American Court of Human Rights held, inter alia, in connection with the respondent State’s failure fully to investigate the massacre of civilians carried out by a paramilitary group with the alleged assistance of the State authorities:
“238. In this regard, the Court recognises the difficult circumstances of Colombia, where its population and its institutions strive to attain peace. However, the country’s conditions, no matter how difficult, do not release a State Party to the American Convention of its obligations set forth in this treaty, which specifically continue in cases such as the instant one. The Court has argued that when the State conducts or tolerates actions leading to extra-legal executions, not investigating them adequately and not punishing those responsible, as appropriate, it breaches the duties to respect rights set forth in the Convention and to ensure their free and full exercise, both by the alleged victim and by his or her next of kin, it does not allow society to learn what happened, and it reproduces the conditions of impunity for this type of facts to happen once again.”
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