European Court Decides Al-Skeini and Al-Jedda

HUDOC service has been intermittent this morning, but the judgments are now available – Al-Skeini v. UK, Al-Jedda v. UK – and they were well worth the wait. For more background, see my case preview and my thoughts on the alleged ’embassy exception.’ In brief, the UK government lost quite badly, while the Grand Chamber has effectively overruled the House of Lords on a number of points; the applicants have every reason to be pleased. In Al-Skeini, the Court held that (1) all of the applicants were within the UK’s Art. 1 ECHR jurisdiction and (2) that the UK has not held an Art. 2-compliant investigation in five of the cases, all but that of Baha Mousa where there is an ongoing public inquiry. In Al-Jedda, the Court held that (1) Mr. Al-Jedda’s detention was attributable to and within the jurisdiction of the UK, and (2) as the UK had no obligation under a UN Security Council resolution to detain preventively and without judicial review, Art. 103 of the UN Charter was not even at play, and that therefore Mr. Al-Jedda was detained unlawfully under Art. 5(1) ECHR. In both cases the Court awarded substantial damages and costs. The financial and policy implications of the two cases are immense.

The most important bits are of course in the Court’s reasoning, as we will now see. Obviously, this analysis is relatively provisional and on short notice. However, it is clear that the Court has articulated some very important principles and that these will be leading cases on the various issues for many years to come. Importantly for precedential value, the Court was unanimous or near-unanimous in both cases . Whether the Court’s reasoning is persuasive on all counts will undoubtedly be a matter of controversy – I at least am certainly not persuaded on some of the counts, though I very much like the human rights-friendly end results. Without further ado, let us now move to the good, the bad, and the ugly in the two judgments.

(Warning! longish post).

Al-Skeini

Art. 1 state jurisdiction

Readers will recall that in Al-Skeini one applicants (Baha Mousa) was killed by UK troops while in custody in a UK detention facility in Iraq, while five applicants were killed by British troops on patrol in Basra (let us disregard for the time being the fact that one of the applicants changed before Strasbourg, and that the circumstances of his death were somewhat different). The House of Lords held that Baha Mousa was within the UK’s jurisdiction since a military prison was analogous to an embassy and had a special status in international law which justified the recognition of such jurisdiction. The five applicants killed on patrol were found not to have been within the UK’s jurisdiction as: (i) the authority and control over individuals/state agent authority/personal notion of jurisdiction as applied e.g. in Issa could not extend merely to killing, a holding implicitly flowing from Bankovic – that the applicants were killed by a bomb from an aircraft or a gunshot by a soldier on the ground could not make a meaningful difference; (ii) the effective overall control of an area/spatial conception of jurisdiction as developed in Loizidou could not apply to Iraqi territory, as this grounds for jurisdiction could only extend to territories that were part of the ECHR’s espace juridique, and were already covered by the Convention; (iii) even if (ii) was false, as a matter of fact the UK did not have effective overall control over Basra, despite being an occupying power there, because of the intensity of the insurgency.

In its judgment, the Grand Chamber tried to bring some coherence to its previous conflicting case law on the extraterritorial application of the ECHR. And as is regrettably often the case in Strasbourg, particularly on this issue, the Court basically pretended that all of its prior jurisprudence somehow fits neatly into a bigger picture even though it manifestly doesn’t, as Judge Bonello rightly pointed out in his separate opinion. Crucially, the Court decided to still retain the basic Bankovic posture that recognition of extraterritorial jurisdiction must remain exceptional, and somehow requires justification on the basis of general international law – a position dubious both legally and as a matter of policy.

The Court first outlined the two main strands of the case law, one based on a personal and the other on a spatial notion of jurisdiction. As for the former, it said that (para. 135):

the Court has recognised the exercise of extra-territorial jurisdiction by a Contracting State when, through the consent, invitation or acquiescence of the Government of that territory, it exercises all or some of the public powers normally to be exercised by that Government (Banković, cited above, § 71). Thus where, in accordance with custom, treaty or other agreement, authorities of the Contracting State carry out executive or judicial functions on the territory of another State, the Contracting State may be responsible for breaches of the Convention thereby incurred, as long as the acts in question are attributable to it rather than to the territorial State (see Drozd and Janousek, cited above; Gentilhomme and Others v. France, nos. 48205/99, 48207/99 and 48209/99, judgment of 14 May 2002; and also X and Y v. Switzerland, nos. 7289/75 and 7349/76, Commission’s admissibility decision of 14 July 1977, DR 9, p. 57).

Note the Bankovic reference to ‘public powers’ , which prove to be key later in the judgment, but which the Court actually (purposefully) misplaces. Para. 71 of Bankovic was not about jurisdiction as authority and control over individuals (personal model), but about jurisdiction as effective control over territory (spatial model). Here’s that paragraph in full:

71.  In sum, the case-law of the Court demonstrates that its recognition of the exercise of extra-territorial jurisdiction by a Contracting State is exceptional: it has done so when the respondent State, through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the Government of that territory, exercises all or some of the public powers normally to be exercised by that Government.

(emphasis added)

Again, we’ll see in a moment why this shift from the spatial to the personal model matters. In paras. 136-7 of Al-Skeini, the Court then continued on to say that:

136.  In addition, the Court’s case-law demonstrates that, in certain circumstances, the use of force by a State’s agents operating outside its territory may bring the individual thereby brought under the control of the State’s authorities into the State’s Article 1 jurisdiction. This principle has been applied where an individual is taken into the custody of State agents abroad. For example, in Öcalan v. Turkey [GC], no. 46221/99, § 91, ECHR 2005‑IV, the Court held that “directly after being handed over to the Turkish officials by the Kenyan officials, the applicant was effectively under Turkish authority and therefore within the ‘jurisdiction’ of that State for the purposes of Article 1 of the Convention, even though in this instance Turkey exercised its authority outside its territory”. In Issa and Others v. Turkey, no. 31821/96, 16 November 2004, the Court indicated that, had it been established that Turkish soldiers had taken the applicants’ relatives into custody in Northern Iraq, taken them to a nearby cave and executed them, the deceased would have been within Turkish jurisdiction by virtue of the soldiers’ authority and control over them. In Al-Saadoon and Mufdhi v. the United Kingdom (dec.), no. 61498/08, §§ 86-89, 30 June 2009, the Court held that two Iraqi nationals detained in British-controlled military prisons in Iraq fell within the jurisdiction of the United Kingdom, since the United Kingdom exercised total and exclusive control over the prisons and the individuals detained in them. Finally, in Medvedyev and Othersv. France [GC], no. 3394/03, § 67, ECHR 2010-…, the Court held that the applicants were within French jurisdiction by virtue of the exercise by French agents of full and exclusive control over a ship and its crew from the time of its interception in international waters.  The Court does not consider that jurisdiction in the above cases arose solely from the control exercised by the Contracting State over the buildings, aircraft or ship in which the individuals were held. What is decisive in such cases is the exercise of physical power and control over the person in question.

137.  It is clear that, whenever the State through its agents exercises control and authority over an individual, and thus jurisdiction, the State is under an obligation under Article 1 to secure to that individual the rights and freedoms under Section 1 of the Convention that are relevant to the situation of that individual. In this sense, therefore, the Convention rights can be “divided and tailored” (compare Banković, cited above, § 75).

Note, first, how in the end of para. 136 the Court rightly says that the cases it cites were not (solely!) about control over ships, aircraft or places – in effect, a spatial model of jurisdiction in extremis, applied to ever decreasing ‘areas.’ Rather, they were about jurisdiction in personal terms, as the ‘exercise of physical power and control over the person in question’. So far so good. But the big question that immediately arises is whether there should be any reason to limit this personal conception of jurisdiction to physical custody. Isn’t it true that having the power to kill a person, whether through a drone or from a rifle, is very much an exercise of ‘physical power’ over that individual? Doesn’t that flat-out contradict the Bankovic holding that a ‘mere’ power to kill does not equal jurisdiction? The UK courts in Al-Skeini certainly (and rightly) thought so. Note also how the Court’s express allowance of dividing and tailoring Convention rights is in fact completely contradictory to para. 75 of Bankovic that the Court somewhat cheekily asks as to ‘compare’ its holding to (viz. ‘the wording of Article 1 does not provide any support for the applicants’ suggestion that the positive obligation in Article 1 to secure “the rights and freedoms defined in Section I of this Convention” can be divided and tailored in accordance with the particular circumstances of the extra-territorial act in question.’)

Let me put this as strongly as I can: this is as close as we’ve ever come to the European Court overruling Bankovic. And good riddance – except, as we will see, the Court’s disavowal of Bankovic is only half-hearted at best.

The Court then moved on to examining jurisdiction as control of an area. In para. 140, it attempted to close the difficult problem of the colonial clause in Art. 56, by saying that it’s really no longer relevant to the application of Art. 1 – but let’s leave that aside. Most importantly, the Court killed off the concept of the espace juridique, which formed the main basis of the House of Lords’ ruling in the case (para. 142):

The Court has emphasised that, where the territory of one Convention State is occupied by the armed forces of another, the occupying State should in principle be held accountable under the Convention for breaches of human rights within the occupied territory, because to hold otherwise would be to deprive the population of that territory of the rights and freedoms hitherto enjoyed and would result in a “vacuum” of protection within the “Convention legal space” (see Loizidou (merits), cited above, §78; Banković, cited above, § 80). However, the importance of establishing the occupying State’s jurisdiction in such cases does not imply, a contrario, that jurisdiction under Article 1 of the Convention can never exist outside the territory covered by the Council of Europe Member States. The Court has not in its case-law applied any such restriction (see amongst other examples Öcalan, Issa, Al-Saadoon and Mufdhi, Medvedyev, all cited above).

After this espace juridique is now rightly nothing more than a fishy French phrase, which is all that it was in Bankovic anyway. You would now think that the Court would then apply the spatial concept of jurisdiction to Basra, but you’d be surprised! The Court in fact completely avoids the question whether the UK had effective overall control over Basra/Southern Iraq as a basis for Art. 1 jurisdiction, and more particularly whether that threshold is identical, or indeed higher than that for belligerent occupation as held by the House of Lords in Al-Skeini. Rather, it noted that as the occupying powers in Iraq the US and the UK obviously exercised elements of governmental authority (paras. 143-148), and concluded (paras. 149-150):

149.  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.

150.  Against this background, the Court recalls that the deaths at issue in the present case occurred during the relevant period: the fifth applicant’s son died on 8 May 2003; the first and fourth applicants’ brothers died in August 2003; the sixth applicant’s son died in September 2003; and the spouses of the second and third applicants died in November 2003. It is not disputed that the deaths of the first, second, fourth, fifth and sixth applicants’ relatives were caused by the acts of British soldiers during the course of or contiguous to security operations carried out by British forces in various parts of Basrah City. It follows that in all these cases there was a jurisdictional link for the purposes of Article 1 of the Convention between the United Kingdom and the deceased. The third applicant’s wife was killed during an exchange of fire between a patrol of British soldiers and unidentified gunmen and it is not known which side fired the fatal bullet. The Court considers that, since the death occurred in the course of a United Kingdom security operation, when British soldiers carried out a patrol in the vicinity of the applicant’s home and joined in the fatal exchange of fire, there was a jurisdictional link between the United Kingdom and this deceased also.

(emphasis added)

Look at that again. The Court applied a personal model of jurisdiction to the killing of all six applicants, but it did so only exceptionally, because the UK exercised public powers in Iraq (see above on where that reference comes from). But, a contrario, had the UK not exercised such public powers, the personal model of jurisdiction would not apply. In other words, Bankovic is according to the Court still perfectly correct in its result. While the power to kill is ‘authority and control’ over the individual if the state has public powers, killing is not authority and control if the state is merely firing away missiles from an aircraft. Under this reasoning, drone operations in Yemen or wherever would be just as excluded from the purview of human rights treaties as under Bankovic.

So, to sum up, while this judgment is good news it is not all good news. Unlike the English courts, the Grand Chamber thought that all of the six applicants were under the UK’s jurisdiction conceived of in personal terms. But that reasoning extends only to situations where the state using force exercises some kind of ‘public powers’, whatever these may be, in a rather bizarre mix of the personal model with the spatial one. Bankovic-type killings would still be off the table, and how all this is reconcilable with judgments like Issa or Pad v. Turkey is completely beyond me. The best news from an Article 1 standpoint is the affirmation in pretty clear terms that both the personal and the spatial conceptions of jurisdiction can apply outside that unfortunate espace juridique.

Merits of Art. 2 complaint

I will be very brief on this one. Readers will recall that the merits claim in Al-Skeini was not that the killings were substantively unlawful, but that the UK failed to comply with its procedural obligation to investigate the killings. Other than with Baha Mousa, even the UK government essentially conceded that its investigative procedures in Iraq were not Art. 2–compliant (e.g. because of the lack of institutional independence of the investigators from the military chain of command). The Court thus found it fairly easy to establish a violation of the procedural component of Article 2. But the Court also made a very useful contribution in that it showed awareness that Art. 2 couldn’t be applied in Iraq in exactly the same way as it would be applied in the UK itself, because the conditions on the ground were so different. It was prepared to interpret Art. 2 flexibly, and not impose unrealistic burdens on the UK, but even under that less rigid standard the UK was found to be in violation.

Implications

This judgment needs to be read very, very carefully be the legal advisors in all European foreign ministries, particularly those which send out their troops or agents abroad. Bearing in mind that there could many, many people in a similar situation to those of the applicants, the financial implications for the UK are by no means negligible. But it is also important to note that the picture is not all rosey. While the Court’s approach to extraterritorial application is now more expansive than in Bankovic and than the English courts allowed in Al-Skeini, and even though Bankovic is now significantly altered, it has still not been overruled, and its main holding continues to apply. For example, under the GC judgment in Al-Skeini the current bombing of Libya by a number of European states could not fall under Art. 1 ECHR. Note also how the limitation on the application of the personal conception of jurisdiction is entirely arbitrary. Why is one killing under the scope of the ECHR and the other is not, merely because the state concerned exercises some vaguely framed  ‘public powers’? I’d most emphatically agree with Judge Bonello that the Court needs to go back to the drawing board. Note also how the fact that Al-Skeini was limited to the procedural component of Art. 2 allowed the Court to say nothing about how Art. 2 would substantively apply in an occupation context, e.g. how the ECHR would interact with IHL and its targeting rules.

Al-Jedda

We can deal with Al-Jedda a bit more quickly. Like Al-Skeini, it also posed a threshold issue, that of attribution mixed with a pinch of jurisdiction. Recall how post-Behrami the UK government started arguing that subsequent to UNSCR 1511 which authorized the UK military presence in Iraq the actions of its troops on the ground were not attributable to the UK, but to the UN. Before the House of Lords, the late Lord Bingham (somewhat unpersuasively, but strategically very smartly) distinguished Al-Jedda from Behrami on the facts and found that the actions of UK troops in Iraq were (obviously!) still attributable to the UK. Now the European Court quite predictably did the very same thing, in para. 80:

The Court does not consider that, as a result of the authorisation contained in Resolution 1511, the acts of soldiers within the Multi-National Force became attributable to the United Nations or – more importantly, for the purposes of this case – ceased to be attributable to the troop-contributing nations. The Multi-National Force had been present in Iraq since the invasion and had been recognised already in Resolution 1483, which welcomed the willingness of Member States to contribute personnel. The unified command structure over the force, established from the start of the invasion by the United States and United Kingdom, was not changed as a result of Resolution 1511. Moreover, the United States and the United Kingdom, through the Coalition Provisional Authority which they had established at the start of the occupation, continued to exercise the powers of government in Iraq. Although the United States was requested to report periodically to the Security Council about the activities of the Multi‑National Force, the United Nations did not, thereby, assume any degree of control over either the force or any other of the executive functions of the Coalition Provisional Authority.

(emphasis added)

Note that the italicized words are absolutely crucial, as they essentially admit the possibility of dual or multiple attribution of the same conduct to the UN and to a state, a possibility that the Court did not entertain in Behrami. Note also how all this is more or less equally true for Kosovo, where KFOR was under no more UN control than the MNF, UNMIK being the only real, but not relevant, point of distinction. The Court then continued on to say that (para. 83-84):

83.  In the light of the foregoing, the Court agrees with the majority of the House of Lords that the United Nations’ role as regards security in Iraq in 2004 was quite different from its role as regards security in Kosovo in 1999. The comparison is relevant, since in the decision in Behrami and Saramati (cited above) the Court concluded, inter alia, that Mr Saramati’s detention was attributable to the United Nations and not to any of the respondent States. It is to be recalled that the international security presence in Kosovo was established by United Nations Security Council Resolution 1244 (10 June 1999) in which, “determined to resolve the grave humanitarian situation in Kosovo”, the Security Council “decide[d] on the deployment in Kosovo, under United Nations auspices, of international civil and security presences”. The Security Council therefore authorised “Member States and relevant international organizations to establish the international security presence in Kosovo” and directed that there should be “substantial North Atlantic Treaty Organization participation” in the force, which “must be deployed under unified command and control”. In addition, United Nations Security Council Resolution 1244 authorised the Secretary General of the United Nations to establish an international civil presence in Kosovo in order to provide an interim administration for Kosovo. The United Nations, through a Special Representative appointed by the Secretary General in consultation with the Security Council, was to control the implementation of the international civil presence and coordinate closely with the international security presence (see Behrami and Saramati, cited above, §§ 3, 4 and 41). On 12 June 1999, two days after the Resolution was adopted, the first elements of the NATO-led Kosovo Force (KFOR) entered Kosovo.

84.  It would appear from the opinion of Lord Bingham in the first set of proceedings brought by the applicant that it was common ground between the parties before the House of Lords that the test to be applied in order to establish attribution was that set out by the International Law Commission, in Article 5 of its draft Articles on the Responsibility of International Organisations and in its commentary thereon, namely that the conduct of an organ of a State placed at the disposal of an international organisation should be attributable under international law to that organisation if the organisation exercises effective control over that conduct (see paragraphs 18 and 56 above). For the reasons set out above, the Court considers that the United Nations Security Council had neither effective control nor ultimate authority and control over the acts and omissions of troops within the Multi-National Force and that the applicant’s detention was not, therefore, attributable to the United Nations.

(emphasis added)

This final bit is vastly entertaining, I must say. Note how the Court completely glosses over the fact that practically anybody who has ever read the Behrami decision thought it to be wrongly decided, particularly in the terms of the ‘ultimate authority and control test’, including above all the ILC in its DARIO. The Court does not acknowledge this overwhelming criticism in any way, but is content to say that the situation in Iraq does not satisfy either test, without telling us which applies and why. Again, it was fairly predictable that the Court would distinguish Behrami rather than apply it or overrule it – this was probably the best that the applicants could have hoped for. But still, as a matter of principle, I find the Court’s evasiveness quite troubling, as is its frequent methodological confusion between attribution of conduct and state jurisdiction.

Art. 5(1) ECHR and Art. 103 UN Charter

But this brings me to the merits of the case. Recall that the UK’s argument was that UNSCR 1546 prevailed over Art. 5(1) ECHR by virtue of Art. 103 of the Charter. The UNSCR authorized preventive detention, as the UK interpreted it, but Art. 5(1) prohibited it, yet it was Art. 5(1) that had to yield even without a formal derogation. One issue before the House of Lords was that UNSCR 1546 was framed in terms of authorization (regarding letters annexed to the resolution), and not obligation, while Art. 103 speaks only of obligations under the Charter. The applicant thus argued that as UNSCR 1546 did not oblige the UK to detain him preventively, but merely authorized it to do so, Art. 103 did not apply. Lord Bingham disagreed, finding that the effectiveness of the Charter system, UN practice and academic commentary all favoured extending the same preclusive effect to authorizations. In Strasbourg, that seemed like a good avenue for attack by the applicant – so let’s see what the Court did.

The money paragraph is 102:

In its approach to the interpretation of Resolution 1546, the Court has reference to the considerations set out in paragraph 76 above. In addition, the Court must have regard to the purposes for which the United Nations was created. As well as the purpose of maintaining international peace and security, set out in the first subparagraph of Article 1 of the United Nations Charter, the third subparagraph provides that the United Nations was established to “achieve international cooperation in … promoting and encouraging respect for human rights and fundamental freedoms”. Article 24(2) of the Charter requires the Security Council, in discharging its duties with respect to its primary responsibility for the maintenance of international peace and security, to “act in accordance with the Purposes and Principles of the United Nations”. Against this background, the Court considers that, in interpreting its resolutions, there must be a presumption that the Security Council does not intend to impose any obligation on Member States to breach fundamental principles of human rights. In the event of any ambiguity in the terms of a Security Council Resolution, the Court must therefore choose the interpretation which is most in harmony with the requirements of the Convention and which avoids any conflict of obligations. In the light of the United Nations’ important role in promoting and encouraging respect for human rights, it is to be expected that clear and explicit language would be used were the Security Council to intend States to take particular measures which would conflict with their obligations under international human rights law.

(emphasis added)

This is an incredibly important development – the Court has laid down a clear statement rule that can go a long way in providing a meaningful human rights check on the Security Council. Sir Nigel Rodley has argued for precisely such an interpretative rule in his separate opinion in the Sayadi case before the Human Rights Committee, while I have made a similar argument in my norm conflict piece in (2009) 20 Duke JCIL 69,  97-102.

Note also how the interpretative presumption that the Court creates is very, very strong. Despite the fact that the letters annexed to the UNSCR expressly referred to security internment, the Court still did not find that this overcame the presumption because it seemed to leave internment as just one of a number of options that the states concerned could use, because it also expressly referred to the need to comply with international human rights law, and because the UNSG and his special representative in Iraq frequently objected to the use of internment. (paras. 105-106). The Court thus found that Mr. Al-Jedda was unlawfully detained.

Implications

This presumption can prove to be an absolutely key tool for human rights compliance in the future with respect to UNSC decisions. But note also what the Court did not say. It did not at all examine the fundamental question of whether UNSCR 1546 could have prevailed over the ECHR even if it did satisfy the presumption. Perhaps that argument can be taken as implicitly accepted, but I think the Court’s silence speaks volumes. The Court also did not address the issue of whether authorizations are capable of being covered by Art. 103 (see, in that regard, the dissenting opinion by Judge Poalelungi). The Art. 103 issue thus remains open for a sequel, whilst bearing in mind the strong presumption that the Court has created. The Als might be over and done with – but Nada awaits.

UPDATE: More analysis from the blawgosphere: Adam Wagner at the UK Human Rights Blog (here and here); Tobias Thienel at Invisible College (here and here); Fiona de Londras at IntLawGrrls; Stuart Wallace at Notts Law PhD.