English Court of Appeal Decides Al-Saadoon Case on the ECHR’s Application Extraterritorially and in Armed Conflict

Last week the Court of Appeal of England and Wales rendered a unanimous judgment in Al-Saadoon & Ors v Secretary of State for Defence [2016] EWCA Civ 811. For extended analysis, see David Hart QC’s post on the UK Human Rights Blog here. Like the judgment of the High Court by Mr Justice Leggatt below, this judgment, written by Lord Justice Lloyd Jones, is exceptionally rigorous and well-argued. In a nutshell, the CoA basically endorsed almost all of the Leggatt J’s reasoning below, with one specific exception: while Leggatt J considered that under the ECtHR’s Al-Skeini judgment the personal conception of Article 1 jurisdiction as authority and control over an individual exercised by a state agent necessarily captures the use of lethal force against that individual, Lloyd Jones LJ held that he did not think that the ECtHR intended the principles articulated in Al-Skeini to go that far, and that it should be for the ECtHR to extended them thusly if it wanted to do so. He nonetheless agreed with Leggatt J in the application of the relevant principles to the facts, with most of the claimants being covered by the ECHR on a different basis.

The key paras of Lloyd Jones LJ’s reasoning are below the fold. In any event, in my view both of the judges have it right: limiting the personal principle so that it does not cover uses of lethal force (e.g. by a drone) would indeed be arbitrary, but in Al-Skeini the Court did in fact try to preserve the result of Bankovic and vaguely create a limitation of precisely this kind (see more here). And I can fully see why an English judge would think that this conceptual mess is one for Strasbourg to sort out – note, in that regard, the impact that cases that do not concern armed conflict (e.g. on extraterritorial surveillance) will inevitably have on this jurisprudence. What will ultimately happen in this regard is unclear, and will depend on the wider political context and the readiness of Strasbourg to find and follow the moral logic of Article 1 ECHR – but it’s clear that this case is headed first to the UK Supreme Court and then on to Strasbourg.

69. In these circumstances, I am unable to agree with the judge that the effect of Al-Skeini is to establish a principle of extra-territorial jurisdiction under Article 1 to the effect that whenever and wherever a state which is a contracting party to the Convention uses physical force it must do so in a way that does not violate Convention rights. (C.f. obiter dicta in Serdar Mohammed v Ministry of Defence [2015] EWCA Civ 843; [2016] 2 WLR 247 at [93] and [95], where this point was not argued.) The concept of physical power and control over a person will necessarily cover a range of situations involving different degrees of power and control. However, for the reasons set out above, I consider that in laying down this basis of extra-territorial jurisdiction the Grand Chamber required a greater degree of power and control than that represented by the use of lethal or potentially lethal force alone. In other words, I believe that the intention of the Strasbourg court was to require that there be an element of control of the individual prior to the use of lethal force.

70. The test of physical power and control is inherently imprecise. It may well be that it will be difficult to draw sensible distinctions between different types or degrees of power and control. However, if the logical consequence of the principle stated in Al-Skeini is that any use of extra-territorial violence is within the acting state’s jurisdiction for this purpose, I believe that that is a conclusion which must be drawn by the Strasbourg court itself and not by a national court. I have referred earlier in this judgment to the particular need for care in determining this fundamental issue of the ambit of application of the ECHR system and the principle, repeatedly stated in the House of Lords and the Supreme Court, that Article 1 should not be construed as reaching any further than the existing Strasbourg jurisprudence clearly shows it to reach. In view of the controversial nature of the Al-Skeini decision, the uncertainty surrounding its effect and the breadth of the extension of extra-territorial jurisdiction for which the claimants contend, it is for the Strasbourg court to take this further step, if it is to be taken at all.

71. I accept that if I am correct as to the approach required by the statement of principle in Al-Skeini it will be necessary to attempt to distinguish between different types and degrees of physical power and control and that this will result in fine and sometimes tenuous distinctions. Thus, for example, on the facts alleged in Issa, had the Turkish troops simply shot the victims without first exercising any physical power or control over them, the case would not fall within this exception to extra-territorial jurisdiction. However, I consider the necessity of drawing such distinctions an inevitable consequence of the principle formulated by the Grand Chamber in Al-Skeini. Moreover, I can see that difficulties will arise in defining the degree of physical power or control which must be exercised. In this regard, I note that Mr. Eadie does not submit that an individual must be formally detained before this exception can apply and accepts that there may be more difficult cases which do not strictly involve detention but where, nevertheless, the situation is so closely linked to the exercise of authority and control of the state as to bring it within its jurisdiction for this purpose. I consider that this concession was correct. Furthermore, it is clear from the assumed facts of Issa v Turkey that this exception applies regardless of whether the exercise of control was lawful.

72. The judge did not shrink from acknowledging the consequences of his conclusion as to the breadth of this exceptional head of jurisdiction. He noted (at [106]) that it creates “real and difficult problems as to how human rights law under the Convention can be accommodated to the realities of international peacekeeping operations and situations of armed conflict”. He considered that there are strong policy reasons for seeking to interpret the territorial scope of the Convention in a way which limits the extent to which it impinges on military operations in the field. He also expressed concern that once the Convention was held to apply to the use of force in overseas military operations, the inevitable consequence of any major foreign intervention would be a flood of claims before the courts. I share the judge’s concern at these consequences which flow, to a greater or lesser extent, from any reading of Al-Skeini. I also agree with the judge that these consequences do not provide a legitimate reason for declining to give effect to the expanded scope of application of ECHR if that is the clear intention of the Strasbourg court. However, for the reasons which I have attempted to explain, I consider that the expanded scope of application of ECHR is not as expansive as that acknowledged by the judge.

73. In these circumstances, while acknowledging the force of the judge’s reasoning, I am unable to agree with his conclusion as to the scope of the exception to territorial jurisdiction founded on physical power and control exercised by a state agent.