3 Human rights law and International
Humanitarian Law
Human Rights Law and the European
Convention on Human Rights
47. Current IHL has been the basis of
the protection of both civilians and combatants since 1947 but,
in more recent conflicts,tension between IHL and HRL as to the
primary source of legal authority and responsibility has emerged.More
recently there have been a number of judgments concerning the
application of the European Convention on Human Rights (ECHR)
to:
· foreign nationals killed
or detained by UK Armed Forces personnel deployed on operations
outside the UK;
· UK Armed Forces killed while
on military operations.
48. The MoD is particularly concerned
with the aspects of human rights law relating to extraterritorial
application and the burdens imposed by procedural obligations:
The two principal areas of uncertainty
related to the ECHR in the field of military operations have probably
been the extent of the Convention's effect extraterritorially
and the extent of the burdens imposed by the procedural obligation
derived from the right to life and the prohibition on torture
(articles 2 and 3).[50]
The MoD further told us that it was
concerned about the possibility of a retrospective application
of these obligations to events in much earlier conflicts such
as the Malayan emergency over 60 years ago and about the number
of cases it might face.[51]
49. Article 1 of the ECHR requires parties
to the Convention to "secure within their jurisdiction the
rights and freedoms" defined in the ECHR. This means that
the question of appropriate jurisdiction and the extent to which
the ECHR applies outside the UK (extraterritorially) is of increasing
importance. The traditional understanding of extraterritorial
application[52] held
that the notion of jurisdiction was "essentially territorial"
and "only in exceptional circumstances" could acts outside
a state's own territory constitute "an exercise of jurisdiction"
within the meaning of Article 1.[53]
More recent cases, in particular Al-Skeini, have changed
this position (see paragraphs 52 to 56 below).
50. Professor Roberts said that human
rights law and the relevant institutions are here to stay and,
in some respects, their role had been positive and should not
be rejected but he also recognised that there were some issues
which needed to be addressed:
To criticise the role of all law
on the grounds that it hampers military operations would be to
misunderstand the long-standing and important role of the law
of armed conflict in this area. Even a more limited rejection
of any and all application of human rights law in armed conflicts
and occupations overseas would be problematic: it would deny aggrieved
parties a mechanism of redress, and would invite extensive international
criticism. There are, however, issues, particularly in relation
to the application of human rights law in situations of armed
conflict and occupation, that need to be addressed.[54]
The law as it relates to insurgents/combatants/civilians
51. The MoD told us that "it is
an essential element of the Government's position that International
Humanitarian Law together with domestic law provides a proper
framework for the protection and legitimate rights of combatants
and non-combatants alike".[55]
DEATHS IN IRAQ—AL SKEINI
52. In 2004, the families of six Iraqis
who died in Basra in 2003 brought a legal action against the MoD,
claiming that the British authorities had failed to conduct adequate
investigations into the deaths of their relatives (Al Skeini
case). Four of the deceased had been shot by British troops out
on patrol; one was a bystander who had been shot and killed in
the course of an exchange of fire between British troops and Iraqi
gunman; and the sixth, Baha Mousa, died at a military base while
in the custody of British troops.[56]
53. In March 2004, the Secretary of
State for Defence decided not to order an independent inquiry
into the deaths. The families then applied for a judicial review
of this decision. The High Court found that the death of Baha
Mousa came within the scope of the ECHR and the Human Rights Act
and that there had been a breach of the obligation arising under
Articles 2 and 3 of the Convention to carry out a proper investigation.
However, the High Court ruled that the complaints of the other
five claimants did not fall within the UK's jurisdiction. This
decision was upheld by the Court of Appeal in 2005 and the House
of Lords in 2007.[57]
However, the Grand Chamber of the European Court of Human Rights
took a different view and ruled that, in Iraq, the UK had assumed
the exercise of some of the powers normally to be exercised by
a sovereign government, in particular responsibility for the maintenance
of security in south-east Iraq.[58]
The Court also held that the UK had failed to carry out an adequate
investigation under Article 2 into the deaths of the Iraqis with
the exception of Baha Mousa which was by then the subject of a
public inquiry.[59]
54. Furtherlegal claims have been brought
against the Government regarding the form that inquiries take
into deaths and allegations of abuse. In 2010, the Government
established an Iraq Historic Allegations Team (IHAT) to investigate
allegations of abuse of Iraqi citizens by British service personnel.
However, the High Court decided that where deaths had occurred,
IHAT was not sufficient and that more inquest-style inquiries
should be conducted.[60]
In October 2013, the Divisional Court ruledthat compelling service
personnel to give evidence would be the only effective way of
determining what happened as soldiers might be reluctant to give
evidence at all.[61]
55. The MoD told us that there was still
uncertainty as to the extent of the ECHR requirement for scrutiny
of the circumstances in which people were killed.The MoD is making
arrangements for the inquisitorial inquiries into deaths akin
to Coroners' inquests to take place once IHAT investigations and
any resulting prosecutions have been concluded.[62]
56. The death of Baha Mousa while in
UK detention in Iraq in 2003 was a horrific incident in which
some members of the UK Armed Forces behaved illegallyand inhumanely
in their treatment of anindividual, resulting in his death. The
public inquiry into Baha Mousa's death reported in September 2011.
The Report said that "During his detention, Baha Mousa was
subjected to violent and cowardly abuse and assaults by British
servicemen whose job it was to guard him and treat him humanely".
Nine other Iraqis, detained with him were also subjected to significant
abuse. The Report detailed 73 recommendations to the MoD.[63]
Professor Roberts commended the Public Inquiry:
The Baha Mousa Public Inquiry
Report (September 2011), is excellent both as an analysis
of the facts and as an exposition of the legal situation surrounding
them. Part XVII made 73 recommendations to the MoD. The MoD has
made certain responses to the report's recommendations, including
initiating certain much-needed improvements to training in detainee-related
matters.[64]
57. The
Al Sweady Inquiry is a public inquiry, announced in November 2009,
into allegations that Iraqi nationals were detained after a firefight
with British soldiers in Iraq in May 2004 and unlawfully killed
at a British camp, and that others had been mistreated at that
camp and later at a detention facility.On 20 March 2014, the lawyers
acting for the Iraqi nationals withdrew the cases of unlawful
deaths of five Iraqi. The allegations of the mistreatments of
Iraqi civilians in British custody remain. The website for Al
Sweady Inquiry states:
It is for the Chairman to reach
all conclusions and he will detail findings of fact in his report.
In so doing he will draw on all the evidence he has seen and heard,
including the statement made today by the legal representatives
for the Iraqi Core Participants.
The Inquiry continues and will hear
closing submissions from Core Participants on 16 April 2014. Thereafter,
the Chairman will write his report.[65]
58. The burden on the MoD of the number
and costs of the necessary investigations and legal inquiries
is likely to be great. It is estimated that as many as 150 to
160 deaths of Iraqi citizens may need to be investigated with
a further 700 to 800 allegations of mistreatment. The Baha Mousa
Inquiry cost £25 million and the Al Sweady Inquiry[66]
has cost more than £22.2 million to 28 February 2014. Other
inquiries launched beforethe High Court ruling on the need for
inquest-style inquiries are costing some £7.5 million a year.[67]
DETENTION IN IRAQ—AL JEDDA
59. In 2005, Halal Abdul Razzaq Ali
Al-Jedda, who had been arrested on suspicion of being a member
of a terrorist group involved in weapons-smuggling and then detained
in a British detention centre in Basra, took legal action to challenge
his indefinite detention without trial. Broadly, British courts
agreed that the UK was authorised by UN Security Council Resolution
to exercise powers of detention where it was necessary for reasons
of security in Iraq. The Grand Chamber of the European Court of
Human Rights, however,took a different view, holding that because
the Resolutions authorised the UK to detain prisoners, but did
not oblige it to do so, the case fell within the UK's jurisdiction
and that the UK had violated Article 5 of the ECHR.[68]
60. Professor Roberts thought that there
had been significant weaknesses in the UK's performance regarding
implementation of the laws of armed conflict:
Perhaps the most important weaknesses
have been the cases of maltreatment of detainees in Iraq following
the 2003 invasion.[69]
The death of Baha Mousa in British custody
was a shocking example of this.
61. Professor Roberts was, however,
concerned with the European Court of Human Rights judgments and
the legal approach taken by the UK in two cases, Al-Skeini
and Al-Jedda:
The record of the European Court
of Human Rights with respect to UK and other military actions
is far from being problem-free. A particular issue in which its
record has been widely questioned is the relation between human
rights law and the law of armed conflict. Naturally the court
is more familiar with human rights law, and in some cases it has
been criticized for apparently giving priority to human rights
law, even in the circumstances of international armed conflict—for
which, of course, the law of armed conflict is the lexspecialis.
This issue arose in two major judgments against the UK in July
2011, Al-Skeini and Al-Jedda.[70]
He further said that the second
case (Al Jedda) was more problematic and should have been legally
argued in a different way by the UK:
In the second case, the Court decided
that states parties to the European Convention on Human Rights
may not intern civilians unless there is a binding and explicit
UN Security Council mandate, or a derogation to Article 5 of the
European Convention has been entered. This outcome may have been
the result of a flawed argument by government lawyers, who had
apparently chosen not to raise provisions of the law of armed
conflict as a basis for detention, but instead to rely on the
authority of a UN Security Council resolution. The legally peculiar
judgment simply contradicted clear provisions in the law of armed
conflict (especially 1949 Geneva Convention IV) whereby non-criminal
detention for imperative security reasons is permitted. The Court's
conclusion could even be read to apply equally to the internment
of prisoners of war. Legal experts of the International Committee
of the Red Cross have been justifiably concerned about the implications
of this judgment.[71]
62. Martin Hemming was also concerned
by the results of the Al-Jeddacase:
One of the most difficult aspects
of recent ECtHR [European Court of Human Rights] jurisprudence
has been the view taken on security detention in the Al Jedda
case—in effect, that a UN Security Council Resolution that
authorizes detention for imperative reasons of security is insufficient
to override, in accordance with Article 103 of the UN Charter,
Article 5 ECHR obligations such as would arise in relation to
a detention within the UK.Only an explicit Security Council requirement
or obligation to detain could do that, or a derogation under Article
15 of the ECHR.[72]
63. On the Al-Jedda case, the
MoD told us that the Government had been forced to pay large sums
of money to persons who were reasonably suspected of attacking
and conspiring against UK forces and whose detention was believed
at the time to be entirely lawful:
An important example is the European
Court of Human Rights' decision in the case of Al-Jedda.
In this case the Court rejected the submissions of the UK Government
that the Convention did not apply to military operations in Iraq
and went on to rule that the detention of the claimant, a suspected
insurgent, was contrary to their human rights although detention
operations had been foreseen at the time the United Nations Security
Council Resolutions authorised the military operations.[73]
AFGHANISTAN
64. The MoD told us that because the
circumstances of the military operations in Afghanistan differed
in important and legally significant ways from those of the Iraq
campaign, the Convention (ECHR) did not apply to the operations
of UK Forces in Afghanistan. The primary reason is that such operations
are conducted under the auspices of the International Security
Assistance Force, NATO and cases were unlikely to fall under UK
jurisdiction for the purposes of the ECHR. The MoD did point out
though that these matters will be tested in a number of forthcoming
cases.[74]
65. The number of legal challenges
facing the MoD in respect of human rights law is large, uncertain
and growing. We recognise that there is nothing the MoD can do
to prevent these existing cases but we recommend it should fight
each of them vigorously. We will cover possible future arrangements
including legislation and procedural changes later in this Report.
The MoD should inform us of the size and costs of the legal challenges
it is facing in regard to the challenges from people in Iraq and
Afghanistan on human rights grounds. It should also set out the
arrangements it has introduced for carrying out the required inquiries
akin to Coroners' inquests on those people who died in Iraq as
a result of the actions of the UK Armed Forces.
66. The MoD should identify the lessons
from the legal issues arising in Iraq and Afghanistan and ensure
that in all future operational deployments, the Armed Forces are
clear about the legal position of the deployment and that all
measures have been taken to ensure that they will not be open
to legal challenge.
67. Baha Mousa's treatment and subsequent
death in detention was an horrific example of a few Armed Forces
personnel behaving inhumanely and illegally. It is obviously right
in such cases that individuals and the Armed Forces should feel
the weight of the law. In its response, the MoD should detail
how it is addressing the recommendations from the Baha Mousa Inquiry
and the progress made to date in the implementation of these recommendations.
USE OF LEGAL AID AND JUDICIAL REVIEW
68. On legal aid, the MoD told us that
the use of legal aid by people with little personal stake in the
matter caused the Government concern:
[...] The first is the apparently
ready availability of legal aid for actions challenging the conduct
of military operations, some of them weak or ill-thought out.
Such actions are often brought in the name of overseas nationals
or of UK nationals who may have little or no personal stake in
the matter. While the government recognises that, within the legislative
framework for legal aid, decisions on support to be provided to
individuals must be made independently, the Ministry of Defence
has been concerned that legal aid has been granted recently for
at least two judicial review cases to be taken to appeal after
having been roundly rejected at the High Court. It therefore welcomes
the steps announced by the Ministry of Justice to reform the rules
on access to legal aid, particularly in cases brought by overseas
claimants.[75]
69. The MoD alsotold us that it was
concerned by the use of judicial review:
The second aspect is the use of
judicial review in cases which might more appropriately have proceeded
as personal injury claims. Judicial review is there as a mechanism
for the scrutiny of decisions primarily made by or on behalf of
Ministers. In many cases of alleged personal injury, particularly
those arising from operations in Iraq, however, the claimants'
lawyers have proceeded by way of judicial review, alleging inadequate
investigation even before the investigation has concluded. Given
that neither the Minister nor his officials have taken any decision,
this seems an inappropriate way of proceeding and it is certainly
one which leads to the expenditure of far larger amounts on legal
fees than would personal injury claims.[76]
70. We await with interest the results
of the Government's work on the reform of legal aid. The MoD should
inform us how any such reform will impact on the legal challenges
it faces. The Government should also tell us of its intentions
to limit the use of judicial review in respect of military operations.
WORK TO IMPROVE ARRANGEMENTS FOR
DETAINING PEOPLE FOR SECURITY REASONS
71. There have been a number of attempts
to harmonise the standards with regard to holding detainees. The
Copenhagen Process[77]
on Handling Detainees in International Military Operations was
launched in October 2007 by the Danish Government and concluded
in October 2012.Participants recognised that detention is a necessary,
lawful and legitimate means of achieving the objectives of international
military operations. It did not seek to create new legal obligations
under international law but to develop principles to guide the
implementation of the existing obligations with respect to detention
in international military operations; by facilitating a common
approach the Copenhagen Processshould theoretically contribute
to ensuring the humane treatment of detainees and the effectiveness
of international military operations.[78]
On the outcome of the Copenhagen Process, Professor Roberts said:
The Copenhagen Process [...] has
been a useful attempt to facilitate a common approach. As paragraph
II of this document states, 'it should contribute to ensuring
the humane treatment of detainees and the effectiveness of international
military operations'; paragraph IV notes a still unresolved doctrinal
issue when it recognizes 'the challenges of agreeing upon a precise
description of the interaction between international human rights
law and international humanitarian law.'[79]
72. ProfessorRoberts referred to other
projects which were attemptingto secure the full application of
the laws of armed conflict. For example, Geneva Call sought the
participation of non-state armed groups, placing particular emphasis
on specific issues such as certain weapons and child soldiers.
He also mentioned a more ambitious project—the work on Harmonising
Standards for Armed Conflict led by Sir Daniel Bethlehem, former
legal adviser to the FCO. The project has been working on a model
declaration that states might make unilaterally to agree to be
bound by the provisions of the 1949 Geneva Conventions and 1977
Additional Protocol I (albeit with certain reservations) in conflicts
of a non-international character.[80]
73. The ICRC is currently examining
ways of strengthening the protection of persons deprived of their
liberty in non-international armed conflict which is the predominant
form of conflict in the world today. It told us:
[...] there is a significant disparity
between the robust and detailed provisions applicable to the deprivation
of liberty in the context of international armed conflict, and
the very basic rules codified for non-international armed conflict.
While the Four Geneva Conventions contain over 175 provisions
regulating detention in virtually all its aspects in relation
to international armed conflicts, there is no comparable regime
for non-international armed conflict. The very limited treaty
rules applicable to non-international armed conflict cannot adequately
respond to the myriad of legal and protection issues that arise
in practice. This relative absence of specificity within IHL has
led to uncertainty about the source and content of the rules governing
detention in non-international armed conflict, and on-going discussion
regarding the applicability and adequacy of human rights law,
and the precise contours of customary IHL [81]
The ICRC told us it had identified four
key areas in which the law was in need of strengthening: conditions
of detention; vulnerable categories of detainees; transfer of
detainees; and grounds and procedures for internment.[82]
74. The UK Government should participate
in appropriate international work to strengthen International
Humanitarian Law and, in particular, should be more actively involved
in the ICRC consultations on detention in non-international armed
conflict and on strengthening compliance with IHL.
Human rights law, duty of care
and members of the Armed Forces
75. The MoD told us that the judicial
development of duty of care concepts is "a matter of real
and current concern to the Government". The MoD described
changes to the law on whether Service personnel could sue the
MoD for death or injury on operations or training:
Historically the Crown could not
be sued in its own Courts. When that rule was abolished after
the Second World War (by the Crown Proceedings Act 1947) an exception
was made by section 10 of that Act for members of the Armed Forces
who remained unable to sue the Government for death or personal
injury caused by another member of the Armed Forces if the death
or injury was certified as pensionable by the Secretary of State.
This exception was repealed by the Crown Proceedings (Armed Forces)
Act 1987, although by section 2 of the 1987 Act (which is still
in force) the effect of section 10 could be revived [...] in case
of either (a) any imminent national danger or (b) for the purposes
of any warlike operations in any part of the world outside the
UK. Since 1987 no revival order has been made.
It also described the doctrine of combat
immunity as follows:
Given the virtually universal recognition
that members of the Armed Forces on operations are in an inherently
dangerous occupation and that the duty of care applicable to a
civilian context cannot apply to them in the same way, the doctrine
ofcombat immunity was rapidly adapted by the UK Courts to
cover the position of UK armed forces on operations where they
come under attack or face the threat of attack or violent resistance:
the leading case was that of Mulcahy v Ministry of Defence
(1996) which related to the first Gulf War, which of course took
place four years after the 1987 Act came into force.[83]
76. Coroners' inquests are held on all
Armed Forces personnel killed overseas whose bodies are returned
to the UK. The introduction of narrative verdicts[84]in
2004 has meant that Coroners who often have limited military expertise
have been able to comment on the circumstances of an individual's
death and on operational matters rather than solely reach a judgment
as to the cause of the death. This has led to criticisms of the
MoD, the Armed Forces and individual Service personnel by coroners
about the circumstances of these deaths.[85]
77. The legal cases about deaths in
combat in Iraq and the application of the ECHR to UK Armed Forces
personnel deployed outside the UK have yet to be fully resolved
by the Courts. It is, therefore, not yet possible to determine
their likely impact on military operations although the impacts
are likely to be significant.
78. Much disquiet has been expressed
about the application of human rights law onto the battlefield.
In a debate in the House of Lords on the Armed Forces and Legal
Challenge, some Members of the House of Lords expressed concern
about the increased "jurification of military conflict"
and that legal developments were undermining the Armed Forces'
ability to operate effectively in conflict situations. Others
defended the use of the law. In particular, Lord Hope, Supreme
Court judge in the Smith case, said that when a claim was
brought before the court, a judge had to deal with it and the
issues could not be ducked however difficult or uncomfortable
they may be.[86]
79. In his evidence, General Parker
expressed his concern about the disconnect between the operational
environment and the courtroom:
[...] there is a real risk that
future legal examination of an individual's action, which takes
place in the sterilised environment of a court room, far away
from the front line and with the benefit of hindsight, fails to
appreciate the requirement to take action under extreme pressure
and with no time to spare.The application of UK domestic law to
a counter insurgency situation in a place where the culture, geography
and value of life may be entirely different to that at home, must
be delivered with extreme care.[87]
80. General Shaw took a very strong
view on the impact of human rights legislation on military operations:
HR [human rights] legislation is
fundamentally incompatible to the soldier's unlimited contract
on which soldiering depend. The intrusion of the right to life
on to the battlefield will inevitably undermine the military profession
and result in far bloodier engagements on the battlefield as a
commander can take fewer risks with their own troops who might
sue him so resorts to massive violence against the opposition
to lessen the risk to his own troops.[88]
JUNE 2013 SUPREME COURT JUDGMENT
81. Cases (Smith and others v the
MoD)relating to deaths and serious injury of Service personnel
in Iraq were taken to the Supreme Court in early 2013. One of
these incidents was as a result of 'friendly fire'. These cases,
brought on both human rights and civil liability grounds, are
described by the MoD below:
The implications of this year's
Supreme Court judgment in the conjoined cases of Smith and
others v MOD, Ellis v MOD, and Allbutt and others v MOD
are not yet clear. These are all tragic cases of deaths on the
field of combat in Iraq: the Government has every sympathy with
the claimants but is obliged to defend these claims on important
grounds of legal principle. Briefly, the argument of the claimants
is that, while these tragic incidents did indeed take place in
the course of combat, combat immunity should not apply because
they can be traced back to previous decisions about the provision
of equipment and training to the soldiers which could—they
argue—have protected them more effectively.[89]
82. The MoD is of the view that this
argument could be applied to virtually any claim to which the
principle of combat immunity has hitherto been understood to apply,
and if accepted could have the effect of opening up the conduct
of combat to the scrutiny of the courts after the event. It believes
that this could have seriously debilitating effects on the decision-making
of commanders on the ground which could in the long run seriously
impair this country's military effectiveness.[90]
83. The Supreme Court considered the
question of whether, and to what extent, Article 2 (the right
to life) of the ECHR imposes positive obligations on the Government
to prevent the deaths of its own soldiers in active operations
against the enemy. On 19 June 2013, the Supreme Court ruled
by a majority of four to three not to strike out these claims
but to allow them to proceed to trial. The majority said that
the court must avoid imposing positive obligations on the state
in connection with the planning for and conduct of military operations
in situations of armed conflict which are unrealistic and disproportionate.
Policy decisions made at a high level of command and things done
on the battlefield would fall outside the scope of Article 2 but
finding whether there is room for claims to be brought in the
middle ground would require the exercise of judgment in the light
of the facts on each case.[91]In
his judgment on the Smith case, Lord Hope specifically
said:
[...] the court must avoid imposing
positive obligations on the state in connection with the planning
for and conduct of military operations in situations of armed
conflict which are unrealistic or disproportionate. But it must
give effect to those obligations where it would be reasonable
to expect the individual to be afforded the protection of the
article. It will be easy to find that allegations are beyond the
reach of article 2 if the decisions that were or ought to have
been taken about training, procurement or the conduct of operations
were at a high of command and closely linked to the exercise of
political judgment and issues of policy. So too if they relate
to things done or not done when those who might be thought to
be responsible for avoiding the risk of death or injury to others
were actively engaged in direct contact with the enemy. But finding
whether there is room for claims to be brought in the middle ground,
so that the wide margin of appreciation must be given to the authorities
or to those actively engaged in armed conflict is fully recognised
without depriving the article of content, is much more difficult.
No hard and fast rules can be laid down. It will require the exercise
of judgment. This can only be done in the light of the facts of
each case.[92]
84. The MoD took comfort in aspects
of the majority judgment, in particular, that it upheld the continuing
existence of the doctrine of combat immunity and that liability
of those actually engaged in active combat was specifically excluded.[93]
The MoD also said:
As Lord Hope said in his speech
explaining the majority view, when the cases come to trial "the
trial judge will be expected to follow the guidance set out in
this judgment as to the very wide measure of discretion which
must be accorded to those who were responsible on the ground for
the planning and conduct of the operations during which these
soldiers lost their lives and also to the way issues as to procurement
too should be approached".[94]
85. Professor White, Professor of Law
at University of Nottingham, told us that he did not regard this
judgment as a difficult one as Lord Hope expressed the view that
the law should not undermine the state's ability to defend itself:
The law should enter this field
with great caution, according to Lord Hope, and the Courts should
not risk undermining the ability of a state to defend itself or
risk democracy itself. Thus, it would require a manifest violation
of positive obligations to trigger responsibility of the government—either
a serious error by a commander, or a serious failure in planning
or procurement.[95]
However, he also recognised the strength
of the minority view set out by Lord Mance in the Smith casewhich
had warned of the 'judicalisation of war'.[96]
86. We are concerned about the implications
of the Supreme Court judgment in June 2013 in the Smith case for
the principle of combat immunity. We recognise that the judgment
appeared to limit the scope of the cases to the 'middle ground'
between the policy and the conduct of the armed conflicts. However,
we believe that this may still open up decisions, taken in situations
of intense armed conflict where commanders are forced to make
the best judgments they can, to examination by the Courts.
50 Ev 1 Back
51
Ev 2 Back
52
Set out by the Grand Chamber of the European Court of European
Rights in Bankovic v Belgium [2001] II BHRC 435 Back
53
Bankovic v Belgium [2001] II BHRC 435, paragraph 67 Back
54
Ev 61 Back
55
Ev 1-2 Back
56
House of Lords library note: the Armed Forces and Legal Challenge
1 November 2013, LLN 2013/03 Back
57
[2005] EWCA Civ 1609 and [2007] UKHL 26, Back
58
Al Skeini and others v the UK [2011] 55721/07 Back
59
House of Lords library note: the Armed Forces and Legal Challenge
1 November 2013, LLN 2013/03. Back
60
Ibid Back
61
[2013] EWHC 2941 (Admin) Back
62
Ev 2 Back
63
The Report of the Baha Mousa Inquiry, HC 1452, September 2011 Back
64
Ev 59-60 Back
65
http://www.alsweadyinquiry.org/ Back
66
Ibid Back
67
House of Lords library note: the Armed Forces and Legal Challenge
1 November 2013, LLN 2013/03 Back
68
Ibid Back
69
Ev 59-60 Back
70
Ev 61 Back
71
Ibid Back
72
Ev 98 Back
73
Ev 1 Back
74
Ev 1-2 Back
75
Ev 3 Back
76
Ibid Back
77
The Copenhagen Process on the Handling of Detainees in International
Military Operations involved representatives from Argentina, Australia,
Belgium, Canada, China, Denmark, Finland, France, Germany, India,
Malaysia, New Zealand, Nigeria, Norway, Pakistan, Russia, South
Africa, Sweden, Tanzania, the Netherlands, Turkey, Uganda, the
United Kingdom and the United States of America and representatives
from the Africa Union, the European Union, the North Atlantic
Treaty Organisation, the United Nations and the International
Committee of the Red Cross also attended the meetings as observers.http://um.dk/en/politics-and-diplomacy/copenhagen-process-on-the-handling-of-detainees-in-international-military-operations/ Back
78
Ev 60 and Copenhagen Process website http://um.dk/en/politics-and-diplomacy/copenhagen-process-on-the-handling-of-detainees-in-international-military-operations/ Back
79
Ev 60 Back
80
Ibid Back
81
Ev 15 Back
82
Ibid Back
83
Ev 3 Back
84
Narrative verdicts allow coroners to comment on the circumstances
of an individual's death as well as reach a judgment as to the
cause of death. Back
85
Ev 101 Back
86
House of Lords debate Armed Forces and Legal Challenge 7 November
2013 Back
87
Ev 30 Back
88
Ev 93 Back
89
Ev 3 Back
90
Ibid Back
91
House of Lords library note: the Armed Forces and Legal Challenge
1 November 2013, LLN 2013/03 Back
92
Smith and others v MoDetc [2013]UKSC 41, paragraph 76 Back
93
Ev 3 Back
94
Ibid Back
95
Ev 47 Back
96
Ev 47-48 Back
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