Al-Saadoon and the Duty to Investigate

On September 9, a UK Court of Appeal handed down its judgment in Al-Saadoon & Ors v. Secretary of State for Defence [2016] EWCA Civ 811]. Much of that case revolved around when and how the European Convention on Human Rights (ECHR) applies to the conduct of a State beyond its own borders (i.e., extraterritorially) in situations of armed conflict where that State is in some way linked to a use of force that results in death.

This post focuses on a separate issue in the judgment: the duty to criminally investigate violations of non-refoulement (under Article 3, ECHR) and arbitrary deprivation of liberty (Article 5, ECHR). The non-refoulement issue arose after two individuals who U.K. military forces captured in Iraq claimed they were transferred to U.S. custody and in whose hands they were subsequently ill-treated. The Article 5 issue arose after U.K. military forces operating in Iraq detained several individuals who claimed to have had their Article 5 rights violated whilst in U.K. custody. The question that Lord Justice Lloyd Jones had to resolve was whether, under the ECHR, the U.K. had a duty to conduct criminal investigations into these alleged violations.

Lloyd Jones LJ, agreeing with Mr. Justice Leggatt’s prior High Court judgment, said that no such obligation to investigate exists for all Art 3 non-refoulement and all Article 5 violations. With respect to Article 3, Lloyd Jones LJ supported Leggatt J’s three-pronged reasoning for why an obligation to investigate torture exists in all cases, but a similar obligation for all non-refoulement breaches does not:

1. In terms of harm, exposing someone to a risk of ill treatment cannot reasonably be equated with actually subjecting a person to such treatment.

2. In terms of culpability, a breach of the Soering [non-refoulement] obligation can be committed without any mens rea or personal liability on the part of any state official. A breach may be established simply by showing the existence of substantial grounds for believing that the individual in question would face a real risk of being subjected to treatment contrary to Article 3 if sent to the receiving state. There is no requirement that state officials should have knowledge of the risk.

3. Whereas subjecting a person to torture or other inhuman or degrading treatment is contrary to the criminal laws of civilised societies, the same cannot be said of a breach of the Soering obligation (at 133).

With respect to Article 5 violations, Lloyd Jones LJ reasoned that Article 5 provided enough protections such that there was no need to go looking for additional remedial measures elsewhere in the Convention, be it in Article 13 (right to an effective remedy) or by arguing that Article 5 contains an implied obligation to investigate. He wrote:

The remedies established by Article 5(4) to take proceedings to challenge the lawfulness of detention and Article 5(5) which confers an enforceable right to compensation for unlawful detention are express remedies which would in normal circumstances be sufficient. (at 144)

Lloyd Jones LJ added, as did Leggatt J before him, that the act of unlawful detention also “does not generally imply that any official is or may be guilty of a crime.” Lloyd Jones LJ said these conclusions were supported by Leggatt J’s assessment that there was no decision by the European Court of Human Rights to support “the proposition that there is a duty on the State to hold an investigation whenever an arguable claim is made that the detention of an individual violates Article 5.” (at 144)

Notably, Lloyd Jones LJ was careful not to be absolute. He also concluded that criminal investigations for detainee transfers are required when the sending State is complicit in subsequent ill-treatment and when the mistreatment is done at the instruction or instigation of the sending State (at 137 & 138).  With respect to Article 5, he concluded that criminal investigations are required in instances of disappearances (at 147-155).

It is unclear whether these three exceptions are supposed to be viewed as illustrative or exhaustive but, either way, the judgment’s rather narrow legal analysis of the international human rights law (IHRL) duty to investigate could have benefited from further considerations. From my end, the remainder of this post will show that the judgment could have benefitted from a deeper legal analysis of international humanitarian law (IHL) in particular.

Lloyd Jones LJ noted that while IHL and IHRL both apply during international armed conflict, those two bodies of law are not always in sync and, therefore, the rules of IHRL should be interpreted through the rules of IHL. He made this point to show that IHL does not require the strict judicial oversight of detention that IHRL requires and concluded “this further undermines the appellants’ attempt to found an investigative obligation under Article 5 on an absence of judicial control” (at 184). What he’s saying is that lack of judicial control over detention is not a violation of Article 5 and, therefore, there’s no need for an investigation.

But, while addressing this particular issue of how IHRL and IHL co-exist, Lloyd Jones LJ left unattended other important issues. Lloyd Jones LJ applied certain IHL rules to limit the scope of IHRL (i.e., no obligation for judicial oversight of internment), but he then failed to do the reverse: apply rules of IHL that support, or expand the scope of, IHRL’s duty to investigate unlawful transfers and detention.

While IHL expands a State’s power to detain individuals compared to IHRL, unlawful transfers and detention of protected persons in international armed conflict are grave breaches of the Geneva Conventions that require criminal sanction and investigation. The ICRC Commentary is clear that the grave breach of an unlawful transfer includes a violation of Article 45 of the Fourth Geneva Convention which is, essentially, a non-refoulement provision. So even if Lloyd Jones LJ is correct (and I’m not saying he is or not) that IHRL on its own does not require criminal investigations into all non-refoulement breaches, there is a very strong argument to be made that the same cannot be said when IHRL is applied in the context of international armed conflict.  This is because the IHL grave breach regime injects into IHRL the obligation to investigate non-refoulement transfers.

Moreover, IHL’s transfer rules undercut Leggatt J’s rejection of a duty to investigate based on a claim that one cannot equate exposing someone to a risk of ill-treatment with direct ill-treatment. IHL’s transfer rules also undermine his claim that a non-refoulment violation is not “contrary to the criminal laws of civilised societies.” Obviously, the States that came together to draft the Geneva Conventions thought otherwise on both counts. States—after the experiences of World War II—saw a need to regard torture and unlawful transfers as equally egregious crimes and, in doing so, required that they be subject to universal jurisdiction.

Lloyd Jones LJ’s Article 5 assessment runs into similar problems with IHL. If the judgment is to be understood as saying an Article 5 violation does not warrant a criminal investigation unless the violation reaches the threshold of a disappearance, then IHL begs to differ. If, on the other hand, the judgment’s reference to disappearances is merely an illustrative example of when a criminal investigation is required, then it would have been helpful to make this clear and to pick a less extreme example.

Under IHL, “unlawful confinement of a protected person”—which is far less severe than a disappearance—is a grave breach that requires a State to enact effective penal sanctions. The ICRC’s Commentary explains, by way of example, “internment for no particular reason, especially in occupied territory, could come within the definition of this breach.” The Rome Statute also prohibits “unlawful confinement” as a war crime; it prohibits “imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law” as a crime against humanity. Additionally, in contrast to the judgment’s claim that unlawful detention “does not generally imply that any official is or may be guilty of a crime,” the ICRC Commentary noted, back in 1958, that “most national legal systems punish unlawful deprivation of liberty.”

My point is not to assess whether or not the facts in Al-Saadoon point to war crimes. It’s to say that IHL pushes strongly against an interpretation that the obligation to conduct a criminal investigate under IHRL, when applied in international armed conflict, has such a narrow scope.

Often, when the relationship between IHL and IHRL is assessed, emphasis is placed on the ways that IHL restricts interpretations of IHRL. But, if Lloyd Jones LJ is correct (again, I’m not saying whether he is or isn’t) that IHRL on its own does not require a criminal investigation for 1) non-refoulement violations short of complicity and instruction/instigation by the sending State and 2) Article 5 violations short of disappearances, then we see here an example where IHL expands the scope of IHRL’s investigation obligations.

All that said, there is only so much that IHL can do.  While other parts of IHL may similarly influence IHRL’s duty to investigate, the grave breach regime has its limits. For example, the war crimes of “unlawful confinement” and “unlawful transfers” that I’ve cited do not apply to persons covered by the Third Geneva Convention (i.e., Prisoners of War) and do not constitute war crimes during non-international armed conflicts. Therefore, it will be important for the Al-Saadoon judgment to also be critiqued for its interpretation of IHRL, independent of IHL.

David Hart QC and Prof. Marko Milanovic cover the extraterritorial use of force issues here and here.

Note: This post was written in the author’s personal capacity. The views and opinions expressed are those of the author and should not be attributed to any other source.