On 25 November, the Supreme Court held in Keyu and Others v Secretary of State for Foreign & Commonwealth Affairs  UKSC 69 that the Foreign & Commonwealth Office was not under a duty, under Article 2 ECHR or domestic law, to hold an inquiry into the circumstances in which 24 unarmed rubber plantation workers were shot dead by British soldiers in 1948 during the emergency in Malaya. The issue in question, of when a state is under a duty to investigate historical events under Article 2 or 3 of the European Convention on Human Rights (ECHR), is increasingly relevant in a myriad of contexts today, including the holding of fresh inquests where new evidence has emerged (see the High Court of Northern Ireland’s recent judgment in Finucane’s (Geraldine) Application), accountability for death and mistreatment in the British colonies (see the Mau Mau litigation) and the prosecution of sexual offences carried out years ago. So what does Keyu add to this developing area?
The claim was brought under several grounds, and the judgment contains interesting dicta on a number of issues, including whether the Wednesbury ‘reasonableness test’ should be replaced by a proportionality test (on which there has been commentary elsewhere, see here), and the extent to which UK human rights jurisprudence should ‘mirror’ that of the ECtHR with regard to temporal jurisdiction. But the main argument in the case, and the focus of this post, is the claim brought under Article 2 ECHR. On this the Court was unanimous, albeit for different reasons.
The ECtHR’s criteria on temporal jurisdiction
In examining the Article 2 claim, the Supreme Court had to apply the complex and unique rules created by the European Court of Human Rights (ECtHR) to circumscribe the limits of its temporal jurisdiction in relation to deaths that took place before the state concerned became a party to the ECHR. The ECtHR has held that while it will not have jurisdiction ratione temporis over the substantive interference of Article 2 involved in such deaths by virtue of the non-retroactivity principle, the procedural obligation to conduct an effective investigation into the deaths is detachable from the substantive interference for the purposes of its jurisdiction ratione temporis (Silih v Slovenia). Read the rest of this entry…