The Extraterritorial Effect of Human Rights: the ECHR's Al-Skeini Decision

Last week, the European Court of Human Rights (“ECHR”) released two decisions regarding the British military’s alleged violation, in Iraq, of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”).  Bobby has the scoop on the first case, Al-Jedda v. United Kingdom, here.  In the second, Al-Skeini and Others v. the United Kingdom, the Strasbourg-based ECHR unanimously held that the United Kingdom had violated Article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”), by failing to perform an adequate investigation into the deaths of five Iraqi civilians who were killed in 2003, during British security operations in and around Basrah City.  As in Al-Jeddah, the ECHR awarded money damages to the prevailing parties.

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In Al-Skeini, six Iraqis brought suit against the United Kingdom, each claiming that the British had failed to conduct an adequate investigation into the deaths of their family members – all of whom were civilians.  The lead Applicant was the brother of Hazim Al-Skeini, a 23-year old Iraqi killed in August of 2003.  In written testimony, the lead Applicant said that he saw a British serviceman shoot and kill Al-Skeini, as Al-Skeini was walking to a funeral ceremony at the lead Applicant’s home in the Al-Majidiyah area of Basrah.  (The Applicant added that the discharge of firearms is customary during Iraqi funerals.)  This account contrasted with an official record submitted by the British government.  It said that a British unit was patrolling Al-Majidiyah that evening, and had heard gunfire in the vicinity.  The patrol’s leader then observed a pair of Iraqi men in the street - one of whom stood five meters away, and was aiming a firearm in the direction of the soldier and his unit.  Fearing for his life and those of his colleagues, the soldier fired on both men without warning. After a preliminary inquiry, British military personnel concluded that the patrol leader had acted within the prevailing Rules of Engagement.  No further investigation was conducted, and the lead Applicant was paid $2,500 USD as compensation for his brother’s death.  Four of the remaining five ECHR Applicants recounted similar stories of their relatives’ mistaken killings by British soldiers operating in the field, and saw their cases resolved in a roughly comparable fashion by military authorities. A fifth case drew closer scrutiny: that of 26-year old Baha Mousa, an Iraqi who was allegedly killed by British servicemen after being arrested and taken to a British base in Basrah.  One of Baha Mousa’s co-detainees said in a statement that he and other prisoners there were denied food and water, beaten, and forced into stress positions by British personnel.  The co-detainee said that during the detention, he could hear Baha Mousa screaming from a nearby room.  A pathologist determined in a subsequent investigation that Baha Mousa had suffered 93 separate bodily injuries and died of asphyxiation.  In 2005, seven servicemen were charged with various crimes related to his killing.  One pleaded guilty to inhumane treatment, a war crime, and was sentenced to a year’s imprisonment and dismissed from the British army.  The charges were dropped against four of the other soldiers, and the remaining two were acquitted. Baha Mousa’s father (himself a Colonel in the Iraqi police force) sued in UK courts, presumably for wrongful death, and accepted an out-of-court settlement.  His son’s killing nevertheless became the subject of two independent investigations.  The first was conducted by a high-ranking British officer, Brigadier General Aitken, who examined several detainee abuse cases (including Baha Mousa’s) and published his findings in early 2008.  Separately, the Secretary of State for Defence announced his own inquiry into Baha Mousa’s treatment.  As the ECHR noted in its judgment, this was still underway when the Al-Skeini judgment was handed down. Extraterritoriality Al-Skeini is, in a nutshell, all about the Convention’s extraterritorial effect.  In light of the Government’s concession regarding Baha Mousa – that the Convention applied to his treatment at British military base – the central question in Al-Skeini was whether the Convention would also reach the actions of British soldiers patrolling in and around Basrah, and thus bring the remaining Applicant’s claims within the United Kingdom’s jurisdiction.  The House of Lords had answered “no” to that question.  But the ECHR – the final authority on the matter - said “yes.” Explaining its answer, the Court began by stating that the United Kingdom’s exercise of jurisdiction would be a precondition to its liability, and that jurisdiction is primarily territorial in nature.  The Applicant’s case thus would rise or fall on its compatibility with one or more court-crafted exceptions to the territoriality principle. The ECHR then examined each of these in turn. The first such exception, “State agent authority and control,” encompasses the “acts of diplomatic and consular agents, who are present in foreign territory in accordance with provisions of international law;” as well as a Convention State’s exercise, by invitation, of public powers traditionally belonging to an occupied State.  And, the Court said, “in certain circumstances, the use of force by a State’s agents operating outside its territory may bring the individual thereby brought under control of the State’s authorities into the State’s . . . jurisdiction [under the Convention].”  The Court here cited the example of when a person is taken into custody abroad, by agents of a Convention member State. Next came a second exception, according to which, “as a consequence of lawful or unlawful military action, a Contracting State exercises 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, derives from the fact of such control[.]” (emphasis added). Finally, and in passing, the Court noted that merely because prior cases had said that the Convention would apply when the army of one Convention signatory occupied the territory of another Convention signatory – a principle known as espace juridique - that did not also mean that the occupation of a non-Signatory’s territory would not trigger Convention jurisdiction. The Court applied these principles to the Applicants’ cases, and concluded:

It can be seen, therefore, that following the removal from power of the Ba'ath regime and until the accession of the Interim Government, the United Kingdom (together with the United States) assumed in Iraq the exercise of some of the public powers normally to be exercised by a sovereign government. In particular, the United Kingdom assumed authority and responsibility for the maintenance of security in South East Iraq. In these exceptional circumstances, the Court considers that the United Kingdom, through its soldiers 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 United Kingdom for the purposes of Article 1 of the Convention.  (emphasis added).

The Merits Having found jurisdiction, the Court wasted little time in holding the United Kingdom liable. The investigations into the deaths of the Applicants’ relatives were deemed inadequate, among other things because the inquiries were too closely linked to the units and individuals suspected of the killings.  The lack of institutional independence evidently motivated the Court to find that the United Kingdom’s investigations had fallen short of the requirements of Convention Article 2. The sole exception concerned Baha Mousa’s father – who, according to the British, had “confirmed that he did not claim before the Court that the Government had violated his Convention rights.”  That concession, along with the Secretary of State for Defence’s ongoing inquiry, and the past litigation, lead the Court to dismiss the father’s Article 2 claim. Judge Bonello’s Concurrence Though the Court’s decision was unanimous, Judges Rozakis and Bonello filed two separate concurrences.  Only the latter’s opinion warrants comment, as it is by far the more striking of the pair. Bonello apparently was moved to write for two main reasons: first, to call out the majority for its failure to bring any real clarity to the Court’s extraterritoriality jurisprudence; and second, to scold the United Kingdom for arguing, in litigation, against the Convention’s application to British-run security operations in the Basrah area. As a jurisprudential matter, Bonello thought it better to scrap the ECHR’s past extraterritoriality doctrines, which he found muddy and internally contradictory.  In extraterritoriality cases, “the Court has . . . always tailored its tenets to sets of specific facts.”  For that reason, the Judge wrote, “it is hardly surprising that those tenets seem limp when applied to sets of different facts.” Instead of fashioning exceptions on a case-by-case basis, Bonello would apply a bright line rule: if the violation depended upon the actions of a State or its agents, and if the State could punish the perpetrators and compensate the victims, then the State would be deemed to exercise jurisdiction for Convention purposes.  He additionally suggested that if a member State’s military occupies a foreign State, then the Convention should be presumed to apply. The concurrence ended with a sharply-worded condemnation of the United Kingdom - which apparently had said in written briefs that the Convention’s extraterritorial application in this case would amount to “human rights imperialism.”  That more than provoked Bonello, as his concluding paragraphs make crystal clear:

I confess to be quite unimpressed by the pleadings of the United Kingdom Government to the effect that exporting the European Convention on Human Rights to Iraq would have amounted to “human rights imperialism”. It ill behoves a State that imposed its military imperialism over another sovereign State without the frailest imprimatur from the international community, to resent the charge of having exported human rights imperialism to the vanquished enemy. It is like wearing with conceit your badge of international law banditry, but then recoiling in shock at being suspected of human rights promotion.

Personally, I would have respected better these virginal blushes of some statesmen had they worn them the other way round. Being bountiful with military imperialism but bashful of the stigma of human rights imperialism, sounds to me like not resisting sufficiently the urge to frequent the lower neighbourhoods of political inconstancy. For my part, I believe that those who export war ought to see to the parallel export of guarantees against the atrocities of war. And then, if necessary, bear with some fortitude the opprobrium of being labelled human rights imperialists.

I, for one, advertise my diversity. At my age, it may no longer be elegant to have dreams. But that of being branded in perpetuity a human rights imperialist, I acknowledge sounds to me particularly seductive.

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Al-Skeini has serious implications, most obviously for the militaries of the United Kingdom and other Council of Europe (“COE”) member States.  The Court had no difficulty applying the Convention to British military activities in Basrah.  In one respect, this was uncontroversial: in Al-Skeini and Al-Jeddah, the United Kingdom conceded the Convention’s application to the acts of British soldiers, when committed at British installations.  Yet the Government had contested the Convention’s application to security operations occurring beyond the installations’ borders – and lost on that point.  That much stands to complicate, at a minimum, the legal playbook that will apply during future operations by the armies of COE member States. There’s also the issue of Al-Skeini’s significance for the extraterritorial effect of human rights treaties more generally. Some States stoutly resist extraterritoriality: as is well known, for example, the United States has argued that the International Covenant on Civil and Political Rights (“ICCPR”) only binds the United States with respect to actions committed on its territory.  It is still too early to tell, but the human rights community might cite Al-Skeini as evidence against a territory-based approach to human rights.  Of course Al-Skeini interprets the Convention and not the ICCPR, and it does not follow that merely because the first treaty applies outside its member States’ borders, the second treaty must also do so.  But with that said, a victory in Al-Skeini may yet lend some support, if only atmospheric support, for a broader application of human rights treaties.