|Judgments - Al-Skeini and others (Respondents)
Secretary of State for Defence (Appellant)
Al-Skeini and others (Appellants)
Secretary of State for Defence (Respondent)
62. So far as the other appellants are concerned, the relevant facts are carefully described in the judgment of the Divisional Court,  QB 140, 160-165, paras 55-80. I gratefully adopt that account. I have also had the privilege of considering what Lord Brown is going to say about the question of jurisdiction under the Convention. In all essentials I agree with him. In these circumstances, especially where the issues have also been exhaustively analysed in the Divisional Court and Court of Appeal, nothing would be gained by me going over all of the same ground. I therefore add only some additional observations on the issues raised.
63. The European Convention is a treaty under international law. Somewhat unusually, it confers rights on individuals against the contracting parties. While the Geneva Conventions on the Protection of War Victims 1949 apply "in all circumstances", the geographical scope of the rights under the European Convention is more limited: under article 1, the States Parties are bound to "secure to everyone within their jurisdiction the rights and freedoms defined in Section 1" of the Convention.
64. It is important therefore to recognise that, when considering the question of jurisdiction under the Convention, the focus has shifted to the victim or, more precisely, to the link between the victim and the contracting state. For the purposes of the extra-territorial effects of section 6 of the 1998 Act, the key question was whether a public authority - in this case the Army in Iraq - was within Parliament's legislative grasp when acting outside the United Kingdom. By contrast, for the purposes of deciding whether the Convention applies outside the territory of the United Kingdom, the key question is whether the deceased were linked to the United Kingdom when they were killed. However reprehensible, however contrary to any common understanding of respect for "human rights", the alleged conduct of the British forces might have been, it had no legal consequences under the Convention, unless there was that link and the deceased were within the jurisdiction of the United Kingdom at the time. For, only then would the United Kingdom have owed them any obligation in international law to secure their rights under article 2 of the Convention and only then would their relatives have had any rights under the 1998 Act.
65. What is meant by "within their jurisdiction" in article 1 is a question of law and the body whose function it is to answer that question definitively is the European Court of Human Rights. The judges of that court are independent, not least of the Parliamentary Assembly of the Council of Europe. So Resolution 1386 of that Assembly, calling on the relevant States Parties to accept the full applicability of the Convention to the activities of their forces in Iraq, is, and must be, irrelevant to any decision of the European Court, or indeed of this House, on the proper interpretation of article 1. In any event, nothing said or done by the contracting states could make the Convention apply to the activities of their forces in Iraq if, on a proper judicial construction and application of article 1, it did not apply to those activities.
66. Under section 2(1)(a) of the 1998 Act, when determining any question in connexion with a "Convention right", a court in this country must take into account any judgment or decision of the European Court. While article 1 is not itself included in the Schedule, it affects the scope of article 2 in the Schedule, and that article embodies a "Convention right" as defined in section 1(1). It follows that, when interpreting that article 2 right, courts must take account of any relevant judgment or decision of the European Court on article 1.
67. The problem which the House has to face, quite squarely, is that the judgments and decisions of the European Court do not speak with one voice. If the differences were merely in emphasis, they could be shrugged off as being of no great significance. In reality, however, some of them appear much more serious and so present considerable difficulties for national courts which have to try to follow the jurisprudence of the European Court.
68. Faced with these conflicting elements in the case law, national courts are justified in giving pre-eminence to the decision of the Grand Chamber in Bankovic v Belgium (2001) 11 BHRC 435. The proceedings were brought by the relatives of people who had been killed in a missile attack from a NATO aircraft on the RTS building in Belgrade. The allegation was that there had been a violation of, inter alia, article 2. The respondents were the NATO powers concerned. The case was immediately referred to the Grand Chamber for a definitive ruling on jurisdiction. The parties were represented by distinguished counsel and the judgment of the court is carefully reasoned in the light of their arguments. The decision is unanimous. Everything about it suggests that it is intended to be an authoritative exposition of the concept of "jurisdiction" under article 1.
69. With its emphasis on the centrality of territorial jurisdiction, on the regional nature of the Convention, and on the indivisibility of the package of rights in the Convention, the decision has not lacked for critics who advocate a more inclusive approach to jurisdiction. Whatever the merits of giving the Convention a wider reach might be de lege ferenda, however, the House is only concerned with its reach de lege lata. In considering the European Court's approach to jurisdiction in Bankovic it may, moreover, be relevant to recall that in Bankovic the court rejected the argument that the "living instrument" approach to interpretation of the Convention should be applied to article 1: 11 BHRC 435, 449-450, paras 64 and 65. It is therefore not easy to resolve apparent differences of approach in the case law after Bankovic by saying that the court's idea of the scope of jurisdiction for the purposes of article 1 has simply evolved. Of course, it would be open to the European Court to depart expressly from Bankovic and to explain why it was doing so. Nothing like that has happened, however.
70. In Bankovic the principal submission for the applicants was that the victims of the attack had been brought within the jurisdiction of the respondent states by the air strike itself. In other words, their ability to strike the building showed that the respondents had sufficient control over the deceased to mean that they were within the respondents' jurisdiction. The European Court identified the essential question as being whether, as a result of the extra-territorial act, the deceased were capable of falling within the jurisdiction of the respondent states: 11 BHRC 435, 447, para 54. The court held that there was no jurisdictional link between the victims and the respondent states. So the victims could not come within the jurisdiction of those states: 11 BHRC 435, 454, para 82.
71. Plainly, other things being equal, a similar attack launched by one of the respondent states which killed people in a building on its own territory would engage article 2 of the Convention because the victims would be within the jurisdiction of the state concerned. The decision in Bankovic shows, accordingly, that an act which would engage the Convention if committed on the territory of a contracting state does not ipso facto engage the Convention if carried out by that contracting state on the territory of another state outside the Council of Europe. The necessary jurisdictional link is present in the one case, but not in the other.
72. All this would be quite straightforward if it were not for the reasoning of the European Court in Issa v Turkey (2004) 41 EHRR 567. The case concerned the deaths of a number of shepherds in a particular area of Northern Iraq. The applicants contended that the shepherds had been killed by Turkish troops operating in that area. Turkey denied that the shepherds had ever been within its jurisdiction. At para 71 of its decision, the European Court said this:
The Court went on, at para 72, to say that it must ascertain whether the deceased "were under the authority and/or effective control, and therefore within the jurisdiction, of the respondent state" as a result of its extra-territorial acts. The Court did not exclude the possibility, at para 74, that, as a consequence of military operations over a six-week period, Turkey could be considered to have exercised, temporarily, effective overall control of a particular portion of the territory of northern Iraq. The Court concluded:
Having examined the available evidence, however, the court held that the applicants had failed to prove that the troops had been in the area in question. On that basis, it was not satisfied that the shepherds had been within the jurisdiction of Turkey in terms of article 1.
73. The actual decision in Issa is therefore of no assistance to the appellants, but they can and do point to the very broad proposition in the last sentence of the passage from para 71 of the court's decision which I have quoted in the previous paragraph. In reproducing the passage I have omitted the citations, but, as authority for its approach in the final sentence, the European Court cited the views of the United Nations Human Rights Committee in López v Uruguay (29 July 1981) 68 ILR 29 and in Celiberti de Casariego v Uruguay (29 July 1981) 68 ILR 41. In each of these cases the allegation was that a citizen of Uruguay had been seized on the territory of another State with the co-operation or connivance of officials of that other state, taken back to Uruguay and detained there. For purposes of the European Convention, cases of that kind would fit easily into the same category as the decisions of the Commission in Freda v Italy (1980) 21 DR 250 and Sánchez Ramirez v France (1996) 86-A DR 155. These both involved officers of the respondent state, with the co-operation of officials of the state where the applicant was, removing him and taking him back to the respondent state for trial. Öcalan v Turkey (2005) 41 EHRR 985 seems to fall into the same category. The applicant, who thought that a Kenyan official was driving him to Nairobi airport to fly to the Netherlands, was actually taken by a special route to the international transit area of the airport where he was handed over to Turkish officials, taken on board a Turkish aircraft and arrested. The court did not have to rule on jurisdiction, since it was common ground that the applicant was within the jurisdiction of Turkey in terms of article 1 from the moment he was handed over to the Turkish officials: 41 EHRR 985, 1018, para 91.
74. What causes the difficulty, therefore, is not the idea that the Convention would apply extra-territorially in cases which resembled López v Uruguay and Celiberti de Casariego v Uruguay. Rather, it is the weight which the European Court appears to have attached to the particular basis on which the Human Rights Committee considered that it had jurisdiction. Article 2 of the International Covenant on Civil and Political Rights refers to "individuals subject to [the] jurisdiction" of the state concerned. Referring to article 5 of the Covenant, which is broadly similar to article 17 of the European Convention, the Human Rights Committee held, at paras 12.3 and 10.3 respectively of its two decisions, that:
In each case Mr Christian Tomuschat entered an individual opinion, rejecting that reasoning on the ground that article 5 could not be used to extend the jurisdiction of the Covenant: it was simply designed to prevent any rules of the Covenant being used to justify actions which ran counter to its purposes and general spirit.
75. Although in Issa the European Court cited the proposition from the Human Rights Committee, it did not explain how that proposition fitted into its own existing jurisprudence, especially as analysed in Bankovic. Notably - and surely correctly - the court did not justify its approach by reference to article 17. Moreover, the proposition appears to focus on the activity of the contracting state, rather than on the requirement that the victim should be within its jurisdiction. Without further guidance from the European Court, I am unable to reconcile this approach with the reasoning in Bankovic. In these circumstances, although Issa concerned Turkish troops in Iraq, I do not consider that this aspect of the decision provides reasoned guidance on which the House can rely when resolving the question of jurisdiction in the present case.
76. Another major unresolved difficulty with the decision in Issa is that it is hard to reconcile with the European Court's description of the vocation of the Convention as being "essentially regional" and of the Convention operating "in an essentially regional context and notably in the legal space (espace juridique) of the contracting states": Bankovic, 11 BHRC 435, 453, para 80. The Convention, the Court continued, was not designed to be applied throughout the world, even in respect of the conduct of contracting states. In Issa, as the court records in paras 56 and 57 of its judgment, the Turkish government had advanced an argument based on precisely this aspect of the decision in Bankovic.
77. The European Court rejected that argument in the short passage in para 74 of its decision which I have quoted in paragraph 72 above. There is, of course, no difficulty in seeing that Iraq does not fall within the legal space of the contracting states. It follows that application of the Convention in any area of Iraq controlled by Turkey could not be justified by the need to avoid a gap or vacuum ("lacunas or solutions of continuity" in the French text) in the protection of human rights in a territory which, but for the specific circumstances, would normally be covered by the Convention: Bankovic, 11 BHRC 435, 453-454, para 80. But in Issa the European Court did not say that it was taking that protection a stage further. The difficulty therefore is in seeing how the deceased would have fallen within the legal space of the contracting states if, as was certainly indicated in Bankovic, the Convention was meant to operate in an essentially regional context and not throughout the world, "even in respect of the conduct of contracting states."
78. The essentially regional nature of the Convention is relevant to the way that the court operates. It has judges elected from all the contracting states, not from anywhere else. The judges purport to interpret and apply the various rights in the Convention in accordance with what they conceive to be developments in prevailing attitudes in the contracting states. This is obvious from the court's jurisprudence on such matters as the death penalty, sex discrimination, homosexuality and transsexuals. The result is a body of law which may reflect the values of the contracting states, but which most certainly does not reflect those in many other parts of the world. So the idea that the United Kingdom was obliged to secure observance of all the rights and freedoms as interpreted by the European Court in the utterly different society of southern Iraq is manifestly absurd. Hence, as noted in Bankovic, 11 BHRC 435, 453-454, para 80, the court had "so far" recognised jurisdiction based on effective control only in the case of territory which would normally be covered by the Convention. If it went further, the court would run the risk not only of colliding with the jurisdiction of other human rights bodies but of being accused of human rights imperialism.
79. The essentially regional nature of the Convention has a bearing on another aspect of the decision in Bankovic. In the circumstances of that case the respondent states were plainly in no position to secure to everyone in the RTS station or even in Belgrade all the rights and freedoms defined in Section 1 of the Convention. So the applicants had to argue that it was enough that the respondents were in a position to secure the victims' rights under articles 2, 10 and 13 of the Convention. In effect, the applicants were arguing that it was not an answer to say that, because a state was unable to guarantee everything, it was required to guarantee nothing - to adopt the words of Sedley LJ,  QB 140, 301, para 197. The European Court quite specifically rejected that line of argument. The court held, 11 BHRC 435, 452, para 75, that the obligation in article 1 could not be "divided and tailored in accordance with the particular circumstances of the extra-territorial act in question." In other words, the whole package of rights applies and must be secured where a contracting state has jurisdiction. This merely reflects the normal understanding that a contracting state cannot pick and choose among the rights in the Convention: it must secure them all to everyone within its jurisdiction. If that is so, then it suggests that the obligation under article 1 can arise only where the contracting state has such effective control of the territory of another state that it could secure to everyone in the territory all the rights and freedoms in Section 1 of the Convention.
80. The short passage in para 74 of the decision in Issa where the European Court refers to the possibility of temporary effective overall control of an area of Iraq giving rise to jurisdiction for the purposes of article 1 of the Convention does not address any of these questions. For that reason, it does not provide workable guidance for the House.
81. Accordingly, I am not persuaded that it would be proper for the House to proceed beyond the jurisprudence of the European Court on jurisdiction as it is analysed and declared in Bankovic. On that basis I am satisfied that the relatives of the first five appellants were not within the jurisdiction of the United Kingdom when they were killed.
82. I should add, however, that, even if the approach in paras 71 and 74 of Issa fell to be applied, the facts would not justify the conclusion that the deceased were, in any real sense, under the control of the particular British soldiers who were, or may have been, responsible for their deaths. I respectfully adopt what Brooke LJ says on this matter,  QB 140, 279, paras 109 and 110.
83. The Divisional Court gave an account of the government and administration of Iraq and the position of the United Kingdom armed forces during the relevant period in 2003:  QB 140, 152-158, paras 14-46. The evidence of senior British officers indicates that, on the ground, the available British troops faced formidable difficulties due to terrorist activity, the volatile situation and the lack of any effective Iraqi security forces. In these circumstances, in respectful agreement with Brooke and Richards LJJ,  QB 140, 281-284,304, paras 120-128, 209 even applying the approach in Issa, I would not consider that the United Kingdom was in effective control of Basra and the surrounding area for purposes of jurisdiction under article 1 of the Convention at the relevant time. Leaving the other rights and freedoms on one side, with all its troops doing their best, the United Kingdom did not even have the kind of control of Basra and the surrounding area which would have allowed it to discharge the obligations, including the positive obligations, of a contracting state under article 2, as described, for instance in Osman v United Kingdom (1998) 29 EHRR 245, 305, paras 115-116.
84. In all the circumstances I would dismiss the Secretary of State's cross-appeal, dismiss the appeals of the first five appellants and remit the sixth appellant's case to the Divisional Court.BARONESS HALE OF RICHMOND
85. I am grateful to my noble and learned friend, Lord Rodger of Earlsferry, who has so clearly identified the key question in this case: whether the killing of these individuals by members of the British forces in Iraq could be unlawful under section 6 of the Human Rights Act 1998. That question has two components: first, is section 6 capable of applying to the acts of a United Kingdom public authority outside the territory of the United Kingdom; and secondly, if so, are the acts complained of acts to which that section applies, in the sense that the victims were 'within the jurisdiction' of the United Kingdom for the purposes of article 1 of the European Convention on Human Rights when they met their deaths?
86. I cannot improve upon the clear and comprehensive answer which Lord Rodger has given to the first part of the question. In particular, there is an important difference between the legal system to which any Act of Parliament extends and the people and conduct to which it applies. The question in Lawson v Serco Ltd  UKHL 3;  ICR 250 was whether the right not to be unfairly dismissed, contained in section 94(1) of the Employment Rights Act 1996, applied to certain people whose work was wholly or mainly outside the territory of the United Kingdom. As Lord Hoffmann pointed out, in para 1:
87. The Human Rights Act extends to England and Wales, Scotland and Northern Ireland: see s 22(6). But by itself this tells us nothing about the public authorities to which section 6(1) applies, or about the acts to which it applies, or about the people for whose benefit it applies.
88. For the reasons given by Lord Rodger, section 6 must be taken to apply only to the acts of United Kingdom public authorities. But there is nothing to prevent Parliament legislating for the acts of United Kingdom individuals or entities abroad. In common with Lord Rodger, I can find nothing in the Act which indicates that section 6 should not apply to Mr Mousa's case and several good reasons why it should. In particular, it has many times been said that the object of the Human Rights Act was to give people who would be entitled to a remedy against the United Kingdom in the European Court of Human Rights in Strasbourg a remedy against the relevant public authority in the courts of this country. The United Kingdom now accepts that it would be answerable in Strasbourg for the conduct of the British army while Mr Mousa was detained in a British detention unit in Basra. It would be consistent with the purpose of the Act to give his father a remedy against the army in the courts of this country.
89. But that of course would depend upon establishing a breach of section 6. Section 6(1) makes it unlawful for a public authority to act in a way which is incompatible with a Convention right. The Convention rights are those set out in the listed articles and protocols of the Convention: 1998 Act, s 1(1). The Convention "means the Convention for the Protection of Human Rights and Fundamental Freedoms, agreed by the Council of Europe at Rome on 4th November 1950 as it has effect for the time being in relation to the United Kingdom": 1998 Act, s 21(1). Thus, for example, it will not include a protocol to which the United Kingdom has not (as yet) become a party. But inherent in the text of the Convention itself is another limitation: article 1 only requires that "the High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention". The second question, therefore, is whether any of the individuals involved were "within the jurisdiction" of the United Kingdom at the time of their deaths.
90. My Lords, I cannot usefully add anything to the exposition of the Strasbourg case law in the opinion of my noble and learned friend, Lord Brown of Eaton-under-Heywood, or to the reasons which both Lord Rodger and he give for concluding that none of the deceased, apart from Mr Mousa, were within the jurisdiction of the United Kingdom when they met their deaths. While it is our task to interpret the Human Rights Act 1998, it is Strasbourg's task to interpret the Convention. It has often been said that our role in interpreting the Convention is to keep in step with Strasbourg, neither lagging behind nor leaping ahead: no more, as Lord Bingham said in R (Ullah) v Special Adjudicator  UKHL 26;  2 AC 323, para 20, but certainly no less: no less, as Lord Brown says at para 106, but certainly no more. If Parliament wishes to go further, or if the courts find it appropriate to develop the common law further, of course they may. But that is because they choose to do so, not because the Convention requires it of them.
91. The Strasbourg case law is quite plain that liability for acts taking effect or taking place outside the territory of a member state is exceptional and requires special justification. This court should not extend the liability of one member state, thus necessarily expecting that other member states would do the same, unless it is quite clear that Strasbourg would require this of us. I agree with my noble and learned friends that there is more to be learned from the decision of the Grand Chamber in Bankovic v Belgium (2001) 11 BHRC 435 than there is from the observations of the Chamber in Issa v Turkey (2004) 41 EHRR 567. Bankovic does not lead me to the conclusion that Strasbourg would inevitably hold that the deceased, other than Mr Mousa, were within the jurisdiction of the United Kingdom when they met their deaths.