At 10.00am on Thursday 7 July 2011, 21 judges of the Grand Chamber of the European Court of Human Rights will issue their long-awaited judgments in two cases against the United Kingdom that are being seen as the most important legal rulings in many years.
Al-Skeini and Others and Al-Jedda v UK will answer hugely important questions relating to the scope and effect of the European Convention on Human Rights almost 58 years after its entry into force. In the short term, they could help secure accountability for thousands of Iraqis ill-treated, unlawfully detained or unlawfully killed by British Forces.
Al-Skeini and Others
In Al-Skeini, the Court will determine the extent to which the Convention applies in an extraterritorial context, that is, outside the territory of the Council of Europe’s member states.
The case was brought before the UK courts by the families of some 38 Iraqi men, women and children who alleged that their loved ones were unlawfully killed by British Forces in Iraq. They sought an independent and effective investigation into the deaths, as required under Article 2 of the Convention. The Convention, designed by the UK and other European states in the fifties, is given effect to in domestic law by the Human Rights Act 1998.
The House of Lords found that only one case, that of Baha Mousa, engaged the UK’s responsibilities under those instruments. This was because, according to their Lordships, only where an individual was held in circumstances “analogous” to being held in an embassy, consulate, ship or aircraft of the Respondent state could he fall within that state’s “jurisdiction” for the purposes of the Convention. The concept of “jurisdiction” was, in the court’s view, “essentially territorial” and gave rise to only limited exceptions identified by the European Court ten years ago in its controversial Bankovic judgment. However, Baha Mousa’s case fell within UK jurisdiction as he died in a UK detention facility, in circumstances which the Lords held to be “analogous” to the Bankovic exceptions. The House of Lords thus left the other families without redress. Baha Mousa’s relatives, on the other hand, secured a historic public inquiry on which Sir William Gage will report this September.
Before a packed Grand Chamber on 9 June 2010, the Applicants in Al-Skeini, drawing upon a line of Strasbourg case law giving rise to some identifiable principles, argued that “jurisdiction” applied in a much wider set of circumstances. These might include where the Respondent state exerted “effective control” over an area, or where individuals were subject to the authority of its agents. If the Applicants succeed, it could mean that jurisdiction for ECHR purposes is established in a whole range of scenarios that go far beyond the exceptions recognised by the House of Lords.
The judgment is widely expected to extend the important protections set out in the Convention (and, by analogy, other international and regional legal instruments) to innumerable people around the world whose rights are violated beyond the perpetrating state’s territory. More immediately, the case could represent a significant step in the search for accountability over the UK’s alleged human rights abuses in Iraq. It could also have extremely important implications in terms of the protections afforded to UK service personnel engaged in dangerous foreign operations. For these reasons, Al-Skeini is justifiably being described by some lawyers as “the case of the century.”
Like many thousands of Iraqi citizens, Hilal Al-Jedda was detained indefinitely by British Forces during their operations in Iraq. The Army justified his detention on the basis that the UK and the United States had been empowered to detain individuals preventively by UN Security Council Resolution 1546. The Government maintained before the Grand Chamber that Mr Al-Jedda was not protected by Article 5 of the European Convention – the right to liberty and security of the person – which does not permit such preventive detention. Its argument rested on two premises:
1) that the act of detaining Mr Al-Jedda was attributable not to the UK but to the UN;
2) that even if the detention was attributable to the UK, its power under the UN Resolution prevailed over its European Convention duties.
The Applicant, on the other hand, argued that the act of detaining him was an act of the UK and that the Security Council cannot simply extinguish ECHR rights when it chooses to do so. Resolution 1546 authorised rather than obliged the UK to detain him, and that authorisation has to be subject to the requirements of the ECHR. Alternatively, the UN power could only prevail where it provided ‘equivalent protection’ to that provided by the ECHR.
The Al-Jedda case too could have vast implications for governments and courts around Europe and the world. It will help delineate the relationship between UN Security Council Resolutions and the rights of the individuals they affect. It will also evaluate the question of the accountability of states for their actions where Security Council authorisations exist.
Phil Shiner leads the team at Public Interest Lawyers. He is the solicitor ultimately responsible for having brought the thousands of allegations of ill-treatment, unlawful detention and unlawful killing of Iraqi nationals by UK Forces before the national and European courts. Today, he eagerly anticipated the judgments of the Grand Chamber,
“These cases have a massive potential to bring about accountability if UK Forces torture and unlawfully kill innocent civilians anywhere in the world.”
The judgments come less than two weeks before the Court of Appeal decides whether there should be a single public inquiry into the alleged ill-treatment of hundreds of Iraqis in UK detention facilities. The Court of Appeal case on 18, 19 and 20 July follows aborted investigations by the MoD’s ‘Iraq Historic Allegations Team’ (IHAT). The Iraqi victims argue that IHAT lacks the independence required to effectively investigate their allegations.