Human rights

Jurisdiction - Extra-territorial jurisdiction

Al-Skeini and others v United Kingdom: European Court of Human Rights (Grand Chamber): 7 July 2011

In March 2003, the United Kingdom, together with the other Coalition forces invaded Iraq. The Coalition Provisional Authority (CPA) conferred upon members of that Authority the fullest jurisdictional powers over Iraq. That included the ‘power to issue legislation’.

The applicants were six relatives of Iraqi citizens who were killed in southern Iraq between 4 August and 10 November 2003. The relatives of the first five applicants were fatally killed while British troops were patrolling the streets of Basrah City. The state accepted that in the first, second, fourth and fifth of those cases the deceased had been shot and killed by British troops. In the third case, the state accepted that the deceased (as a bystander) had been shot and killed in the course of an exchange of fire between British troops and Iraqi gunmen.

In the case of the sixth applicant the state accepted that the injuries to, and death of, the sixth applicant had occurred while he was being detained by British troops. On 26 March 2004, the Secretary of State for Defence decided, in connection with those deaths, not to conduct independent inquiries into the death, not to accept liability for the deaths and not to pay just satisfaction. The applicants applied for judicial review of those decisions.

On 14 December, the Divisional Court rejected the claims of the first four applicants (the case of the fifth applicant was stayed) but accepted the claim of the sixth applicant (see[2004] All ER (D) 197 (Dec)). The Court of Appeal dismissed the appeals of the first to fourth applicants and dismissed the cross appeal of the Secretary of State in relation to the sixth applicant (see[2005] All ER (D) 337 (Dec)).

The majority of the House of Lords, in relation to the first four applicants' complaints, found that the UK did not have jurisdiction over the deaths. It accordingly dismissed the appeal and also dismissed the Secretary of State’s cross-appeal (see[2007] All ER (D) 106 (Jun)).

The applicants complained to the European Court of Human Rights that their relatives had been within the jurisdiction of the UK under art 1 of the European Convention on Human Rights at the moment of death and that, except in relation to the sixth applicant, the UK had not complied with its investigative duty under art 2 of the Convention. The applicants did not complain before the Court of any substantive breach of the right to life under art 2.

Instead, they complained that the Government had not fulfilled its procedural duty to carry out an effective investigation into the killings. The applicants sought damages for non-pecuniary loss under art 41 of the Convention.

The Government accepted that the investigations into the deaths of the first, second and third applicants' relatives were not sufficiently independent for the purposes of art 2, since in each case the investigation had been carried out solely by the Commanding Officers of the soldiers alleged to be responsible. However, they submitted that the investigations carried out in respect of the fourth and fifth applicants complied with art 2. Nor had there been any violation of the investigative duty in respect of the sixth applicant; indeed, he did not allege that the investigation in his case had failed to comply with art 2.

The Court ruled:(1) As provided by art 1 of the Convention, the engagement undertaken by a contracting state was confined to ‘securing’ the listed rights and freedoms to persons within its own ‘jurisdiction’. ‘Jurisdiction’ under art 1 was a threshold criterion. The exercise of jurisdiction was a necessary condition for a contracting state to be able to be held responsible for acts or omissions imputable to it which gave rise to an allegation of the infringement of rights and freedoms set forth in the Convention. A state’s jurisdictional competence under art 1 was primarily territorial. Jurisdiction was presumed to be exercised normally throughout the state’s territory.

Conversely, acts of the contracting states performed, or producing effects, outside their territories could constitute an exercise of jurisdiction within the meaning of art 1 only in exceptional cases. To date, the Court in its case-law had recognised a number of exceptional circumstances capable of giving rise to the exercise of jurisdiction by a contracting state outside its own territorial boundaries. In each case, the question whether exceptional circumstances existed which required and justified a finding by the Court that the state was exercising jurisdiction extra-territorially should be determined with reference to the particular facts.

The Court had recognised in its case-law that, as an exception to the principle of territoriality, a contracting state’s jurisdiction under art 1 might extend to acts of its authorities which produced effects outside its own territory. First, it was clear that the acts of diplomatic and consular agents, who were present on foreign territory in accordance with provisions of international law, might amount to an exercise of jurisdiction when those agents exert authority and control over others. 

Secondly, the Court had recognised the exercise of extra-territorial jurisdiction by a contracting state when, through the consent, invitation or acquiescence of the Government of that territory, it exercised all or some of the public powers normally to be exercised by that Government.

Thus, where, in accordance with custom, treaty or other agreement, authorities of the contracting state carried out executive or judicial functions on the territory of another state, the contracting state might be responsible for breaches of the Convention thereby incurred, as long as the acts in question were attributable to it rather than to the territorial state.

In addition, the Court’s case-law demonstrated that, in certain circumstances, the use of force by a state’s agents operating outside its territory might bring the individual thereby brought under the control of the state’s authorities into the state’s art 1 jurisdiction. That principle had been applied where an individual was taken into the custody of state agents abroad. It was clear that, whenever the state through its agents exercised control and authority over an individual, and thus jurisdiction, the state was under an obligation under art 1 to secure to that individual the rights and freedoms under art 1 of the Convention that were relevant to the situation of that individual.

In that sense, therefore, the Convention rights could be ‘divided and tailored’. Another exception to the principle that jurisdiction under art 1 was limited to a state’s own territory occurred when, as a consequence of lawful or unlawful military action, a contracting state exercised effective control of an area outside that national territory.

The obligation to secure, in such an area, the rights and freedoms set out in the Convention, derived from the fact of such control, whether it be exercised directly, through the contracting state’s own armed forces, or through a subordinate local administration.

Where the fact of such domination over the territory was established, it was not necessary to determine whether the contracting state exercised detailed control over the policies and actions of the subordinate local administration. The fact that the local administration survived as a result of the contracting state’s military and other support entailed that state’s responsibility for its policies and actions.

The controlling state had the responsibility under art 1 to secure, within the area under its control, the entire range of substantive rights set out in the Convention and those additional Protocols which it had ratified. It would be liable for any violations of those rights.

It was a question of fact whether a contracting state exercised effective control over an area outside its own territory. In determining whether effective control existed, the Court would primarily have reference to the strength of the state’s military presence in the area. Other indicators might also be relevant, such as the extent to which its military, economic and political support for the local subordinate administration provided it with influence and control over the region.

The ‘effective control’ principle of jurisdiction did not replace the system of declarations under art 56 of the Convention (formerly art 63) which the states decided, when drafting the Convention, to apply to territories overseas for whose international relations they were responsible.

Article 56(1) provided a mechanism whereby any state might decide to extend the application of the Convention, ‘with due regard ... to local requirements,’ to all or any of the territories for whose international relations it was responsible. The existence of that mechanism, which was included in the Convention for historical reasons, could not be interpreted in instant conditions as limiting the scope of the term ‘jurisdiction’ in art 1.

The situations covered by the ‘effective control’ principle were clearly separate and distinct from circumstances where a contracting state had not, through a declaration under art 56, extended the Convention or any of its Protocols to an overseas territory for whose international relations it was responsible.

The Convention was a constitutional instrument of European public order. It did not govern the actions of states not parties to it, nor did it purport to be a means of requiring the contracting states to impose Convention standards on other states.

Where the territory of one Convention state was occupied by the armed forces of another, the occupying state should in principle be held accountable under the Convention for breaches of human rights within the occupied territory, because to hold otherwise would be to deprive the population of that territory of the rights and freedoms hitherto enjoyed and would result in a ‘vacuum’ of protection within the ‘Convention legal space’.

However, the importance of establishing the occupying state’s jurisdiction in such cases did not imply, a contrario, that jurisdiction under art 1 of the Convention could never exist outside the territory covered by the Council of Europe Member States. The Court had not in its case-law applied any such restriction (see [130]-[143] of the judgment).

In determining, in the instant case, whether the UK had jurisdiction over any of the applicants’ relatives when they had died, the Court took as its starting point that, on 20 March 2003, the UK together with the United States and their coalition partners, through their armed forces, had entered Iraq with the aim of displacing the Ba’ath regime then in power. That aim had been achieved by 1 May 2003, when major combat operations were declared to be complete and the United States and the UK became occupying powers within the meaning of art 42 of the Hague Regulations.

It could be seen, therefore, that following the removal from power of the Ba’ath regime and until the accession of the Interim Government, the UK (together with the United States) had assumed in Iraq the exercise of some of the public powers normally to be exercised by a sovereign government. In particular, the UK assumed authority and responsibility for the maintenance of security in south-east Iraq. In those exceptional circumstances, the UK, through its soldiers had engaged in security operations in Basrah during the period in question, exercised authority and control over individuals killed in the course of such security operations, so as to establish a jurisdictional link between the deceased and the UK for the purposes of art 1 of the Convention.

Against that background, the deaths at issue in the instant case had occurred during the relevant period. It had not been disputed that the deaths of the first, second, fourth, fifth and sixth applicants’ relatives were caused by the acts of British soldiers during the course of, or contiguous to, security operations carried out by British forces in various parts of Basrah City. It followed that in all those cases there was a jurisdictional link for the purposes of art 1 of the Convention between the UK and the deceased.

The third applicant’s wife had been killed during an exchange of fire between a patrol of British soldiers and unidentified gunmen and it was not known which side had fired the fatal bullet. The Court considered that, since the death had occurred in the course of a UK security operation, when British soldiers had carried out a patrol in the vicinity of the applicant’s home and joined in the fatal exchange of fire, there was a jurisdictional link between the UK and that deceased also (see [149]-[150] of the judgment). Cyprus v Turkey (Application 25781/94) [2001] ECHR 25781/94 considered; Ilascu v Moldova and Russia (Application 48787/99) [2004] ECHR 48787/99 considered.

(2) The Court was conscious that the deaths in the instant case had occurred in Basrah City in south-east Iraq in the aftermath of the invasion, during a period when crime and violence had been endemic. Although major combat operations had ceased on 1 May 2003, the Coalition forces in south-east Iraq, including British soldiers and military police, had been the target of over a thousand violent attacks in the subsequent 13 months. In tandem with the security problems, there had been serious breakdowns in the civilian infrastructure, including the law enforcement and criminal justice systems. 

While remaining fully aware of that context, the Court’s approach ought to be guided by the knowledge that the object and purpose of the Convention as an instrument for the protection of individual human beings required that its provisions be interpreted and applied so as to make its safeguards practical and effective. Article 2, which protected the right to life and set out the circumstances when deprivation of life might be justified, ranked as one of the most fundamental provisions in the Convention. No derogation from it was permitted under art 15, ‘except in respect of deaths resulting from lawful acts of war’. Article 2 covered both intentional killing and also the situations in which it was permitted to use force which might result, as an unintended outcome, in the deprivation of life.

Any use of force should be no more than ‘absolutely necessary’ for the achievement of one or more of the stated purposes. The general legal prohibition of arbitrary killing by agents of the state would be ineffective in practice if there existed no procedure for reviewing the lawfulness of the use of lethal force by state authorities.

The obligation to protect the right to life under that provision, read in conjunction with the state’s general duty under art 1 of the Convention to ‘secure to everyone within their jurisdiction the rights and freedoms defined in [the] Convention’, required by implication that there should be some form of effective official investigation when individuals had been killed as a result of the use of force by, inter alios, agents of the state.

The essential purpose of such an investigation was to secure the effective implementation of the domestic laws safeguarding the right to life and, in those cases involving state agents or bodies, to ensure their accountability for deaths occurring under their responsibility. However, the investigation should also be broad enough to permit the investigating authorities to take into consideration not only the actions of the state agents who directly used lethal force but also all the surrounding circumstances, including such matters as the planning and control of the operations in question, where that was necessary in order to determine whether the state complied with its obligation under art 2 to protect life.

The Court had held that the procedural obligation under art 2 continued to apply in difficult security conditions, including in a context of armed conflict. It was clear that where the death to be investigated under art 2 occurred in circumstances of generalised violence, armed conflict or insurgency, obstacles might be placed in the way of investigators and, as the United Nations Special Rapporteur had also observed, concrete constraints might compel the use of less effective measures of investigation or might cause an investigation to be delayed.

Nonetheless, the obligation under art 2 to safeguard life entailed that, even in difficult security conditions, all reasonable steps ought to be taken to ensure that an effective, independent investigation was conducted into alleged breaches of the right to life. What form of investigation would achieve the purposes of art 2 might vary depending on the circumstances.

However, whatever mode was employed, the authorities should act of their own motion once the matter had come to their attention. They could not leave it to the initiative of the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures.

Civil proceedings, which were undertaken on the initiative of the next-of-kin, not the authorities, and which did not involve the identification or punishment of any alleged perpetrator, could not be taken into account in the assessment of the state’s compliance with its procedural obligations under art 2 of the Convention. Moreover, the procedural obligation of the state under art 2 could not be satisfied merely by awarding damages.

The investigation should be effective in the sense that it was capable of leading to a determination of whether the force used had or had not been justified in the circumstances and to the identification and punishment of those responsible. That was not an obligation of result, but of means.

The authorities ought to take the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eye-witness testimony, forensic evidence and, where appropriate, an autopsy which provided a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death. Any deficiency in the investigation which undermined its ability to establish the cause of death or the person or persons responsible would risk falling foul of that standard. 

For an investigation into alleged unlawful killing by state agents to be effective, it was necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events. That meant not only a lack of hierarchical or institutional connection but also a practical independence. A requirement of promptness and reasonable expedition was implicit in that context.

While there might be obstacles or difficulties which prevented progress in an investigation in a particular situation, a prompt response by the authorities in investigating a use of lethal force might generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts. For the same reasons, there should be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory.

The degree of public scrutiny required might well vary from case to case. In all cases, however, the victim’s next-of-kin should be involved in the procedure to the extent necessary to safeguard his or her legitimate interests. In the instant case, the starting point was the practical problems caused to the investigatory authorities by the fact that the UK had been an occupying power in a foreign and hostile region in the immediate aftermath of invasion and war.

Those practical problems had included the breakdown in the civil infrastructure, leading, inter alia, to shortages of local pathologists and facilities for autopsies; the scope for linguistic and cultural misunderstandings between the occupiers and the local population; and the danger inherent in any activity in Iraq at that time. In circumstances such as those the procedural duty under art 2 ought to be applied realistically, to take account of specific problems faced by investigators.

Nonetheless, the fact that the UK had been in occupation also entailed that, if any investigation into acts allegedly committed by British soldiers was to be effective, it was particularly important that the investigating authority was, and was seen to be, operationally independent of the military chain of command. It had not been in issue in the first, second and fourth applicants' cases that their relatives had been shot by British soldiers, whose identities were known.

The question for investigation was whether in each case the soldier fired in conformity with the Rules of Engagement. In respect of the third applicant, art 2 required an investigation to determine the circumstances of the shooting, including whether appropriate steps were taken to safeguard civilians in the vicinity.

As regards the fifth applicant's son, it appeared to have been accepted that he had died of drowning. It needed to be determined whether British soldiers had, as alleged, beaten the boy and forced him into the water. In each case eye-witness testimony was crucial. It was therefore essential that, as quickly after the event as possible, the military witnesses, and in particular the alleged perpetrators, should have been questioned by an expert and fully independent investigator.

Similarly, every effort should have been taken to identify Iraqi eye witnesses and to persuade them that they would not place themselves at risk by coming forward and giving information and that their evidence would be treated seriously and acted upon without delay. It was clear that the investigations into the shooting of the first, second and third applicants' relatives fell short of the requirements of art 2, since the investigation process had remained entirely within the military chain of command and had been limited to taking statements from the soldiers involved.

Moreover, the Government accepted that conclusion. As regards the other applicants, the investigation had not been sufficient to comply with the requirements of art 2. In all the circumstances, the procedural duty under art 2 had not been satisfied in respect of the fifth applicant. In contrast, a full, public inquiry had been nearing completion into the circumstances of the sixth applicant's son's death. In the light of that inquiry, the sixth applicant accepted that he was no longer a victim of any breach of the procedural obligation under art 2.

The Court therefore accepted the Government's objection in respect of the sixth applicant. In conclusion, there had been a violation of the procedural duty under art 2 of the Convention in respect of the first, second, third, fourth and fifth applicants.

Tanrikulu v Turkey (Application No 23763/94) [1999] ECHR 23763/94 considered; Jordan v United Kingdom (Application 24746/94) [2001] ECHR 24746/94 considered; Finucane v United Kingdom (Application 29178/95) [2003] All ER (D) 25 (Jul) considered; Khashiyev v Russia (Application nos 57942/00 and 57945/00) [2005] ECHR 57942/00 considered; Khashiyev v Russia (Application nos 57942/00 and 57945/00) [2005] ECHR 57942/00 considered.

(3) Making an assessment on an equitable basis, the first to fifth applicant would be awarded €17,000 in respect of non-pecuniary damage (see [186] of the judgment).