UK Supreme Court Decides R (Smith) v SSD

Today the UK Supreme Court decided R (Smith) v Secretary of State for Defence [2010] UKSC 29 (press summary), yet another fascinating addition to the unfolding saga on the extraterritorial application of human rights treaties.

The plaintiff was the mother of a UK soldier stationed in Iraq who died there from a severe heatstroke. She demanded an inquiry into her son’s death that would be compliant with Article 2 ECHR, that would be able to expose what in her view were systemic faults in the UK’s provision of equipment and facilities to its soldiers in Iraq which ultimately led to her son’s death. In other words, the case is a mirror-image of Al-Skeini, which also dealt with Art. 2 procedural obligations in Iraq, but that time with respect to inquiries into the deaths of Iraqi nationals at the hands of UK troops. As the readers are aware, the Grand Chamber of the European Court held hearings in Al-Skeini just a few weeks ago (see my old post for more background).

With regard to extraterritoriality, the issue before the Supreme Court in Smith was this: does a UK soldier in Iraq enjoy the protection of the ECHR while stationed in an area not under the UK’s effective control? Incidentally, on the facts of the case, Private Smith actually died on a UK military base. Per the UK government’s concession in Al-Skeini, the House of Lords’ quite dubious analogy between a military prison or base and an embassy, and the European Court’s recent admissibility decision in Al-Saadoon, that fact alone would have brought Private Smith within the UK’s jurisdiction. Readers will recall that in Al-Saadoon the European Court brought the spatial model of Art. 1 jurisdiction as state effective overall control of a geographical area to its extreme, but saying that a military prison or base qualified as an ‘area’ susceptible to such jurisdiction and control.

In other words, under the spatial model Private Smith would have been within the UK’s jurisdiction, and therefore entitled to protection under Art. 2 ECHR. However, issue was raised in the lower courts as to whether he would have been within the UK’s jurisdiction even if he did NOT die on the base, but in essentially the same circumstances. Like the lower courts, therefore, the Supreme Court was now faced with a set of questions in a quasi-advisory posture – something that several judges openly lamented. The Court nonetheless decided to rule on the matter, because it is one of great practical relevance of UK military operations abroad; Private Smith is obviously not the only UK soldier to have died in Iraq or Afghanistan, and many soldiers lost their lives outside areas under UK effective control.

The lower courts applied to Private Smith a variant of the personal model of Art. 1 jurisdiction, as state authority and control over individuals, finding that he indeed fell within the scope of Art. 1. In their view, simply by virtue of being a part of the UK military, Private Smith was within the UK’s authority and control, and accordingly within its jurisdiction.

Today the Supreme Court disagreed. By a majority of 6 to 3 (Lady Hale and Lords Mance and Kerr dissenting), the justices found that mere membership in the armed forces was insufficient to establish a jurisdictional link for the purposes of Art. 1 ECHR.

For what it’s worth, this result is in my view ultimately correct. I am personally less than happy, however, with the reasoning of either the majority or the minority in the process of reaching this result. Because they as of necessity had to start from Bankovic, a methodologically deeply flawed decision of the European Court, both the judgments of the majority and the minority suffer from a great deal of otherwise needless conceptual confusion. In other words, because they are national judges applying a treaty primarily supervised by an international court, it is natural that the justices will follow the European Court’s approach, however flawed, and whatever their misgivings about the mess that Strasbourg has made. And as in Al-Skeini, several justices thought that this was an issue that was in the end for Strasbourg to settle. Thus, for example, Lord Phillips in para. 60 of his judgment said that:

We are here dealing with the scope of the Convention and exploring principles that apply to all contracting States. The contention that a State’s armed forces, by reason of their personal status, fall within the jurisdiction of the State for the purposes of article 1 is novel. I do not believe that the principles to be derived from the Strasbourg jurisprudence, conflicting as some of them are, clearly demonstrate that the contention is correct. The proper tribunal to resolve this issue is the Strasbourg Court itself, and it will have the opportunity to do so when it considers Al-Skeini. For these reasons I would hold that the Court of Appeal should not have held that Private Smith was within the jurisdiction of the United Kingdom within the meaning of article 1 at times when he was not within premises under the effective control of the army.

Similarly, though in the minority, Lord Mance in paras. 163-164 of his judgment seemed to have had mixed feelings about following Strasbourg. On the one hand it made his life easier, as he did not have to approach Art. 1 ECHR as completely an issue of first impression. On the other, Strasbourg’s wildly conflicting case law prevented him from attaining a totally clear and principled justification for extending ECHR rights to UK soldiers in Iraq. (Incidentally, I am overjoyed that this article of mine was cited by Lord Mance, in the company of such authors as Rick Lawson and former ECtHR Judge Loukis Loucaides, all arguing that the concept of ‘jurisdiction’ in human rights treaties is in reality a simple one, denoting de facto state control over territory and/or individuals, nothing more, and nothing less).

So, Bankovic and its lamentable offspring aside, why is the majority correct that Private Smith was not within the UK’s jurisdiction under the personal model? Isn’t it true, as Lord Mance points out, that it is ‘commonsense’ that UK soldiers are within the UK’s jurisdiction? Isn’t it true, as Lord Kerr thought (para. 322), that ‘the United Kingdom brought its soldiers into Iraq; it not only asserted complete authority over them while they remained there, it explicitly excluded the exercise of authority over those soldiers by any other agency or state; and it has always been clear that soldiers remain subject to the laws of the UK during their service abroad.’ Likewise, isn’t it true that, as Alex Bailin QC pointed out in his case preview at the excellent UK Supreme Court Blog, ‘[t]here is a simple, intuitive point  – if a soldier is always subject to UK law, wherever he may be, should he not thereby be also entitled to the protection of UK law (including the Human Rights Act)?’

I would submit that this intuition is wrong, however sensible it may seem at first glance. It not only assumes that the spatial model can be supplemented by a variant of the personal model based on legal links such as nationality or membership in the armed forces, but it rests on a confusion – confusion that authors such as Lawson, Loucaides, or Ralph Wilde have tried to dispel – between the various meanings that the word ‘jurisdiction’ can have in general international law.

It is true that a state may legislate for its nationals and members of its armed forces even when they are abroad, and in fact all states do that to a greater or a lesser extent. It is also true that a state’s soldiers are its de jure organs, and that their conduct performed in their official capacity is attributable to the state. Neither of these premises can, however, lead to the conclusion that a state’s soldiers, or diplomats, any other agents or even nationals are regardless of their location always within that state’s jurisdiction within the meaning of the jurisdiction clauses of human rights treaties. This ‘jurisdiction’ is simply not the jurisdiction to prescribe in general international law. It is not about the application and extent of UK domestic law.

If the personal model of jurisdiction is valid, its acceptance of nationality or membership in the armed forces as grounds of state jurisdiction would lead to an open embrace of double standards – and there, I may say, is where the intuitive appeal actually lies. Let us, for example, simply transplant Smith to the facts of Al-Skeini – imagine that one of the five applicant Iraqi citizens killed by UK troops on patrol was actually a dual UK/Iraqi national. Further, imagine that the sixth applicant was not Baha Mousa, but was in fact the mother of a UK soldier killed by friendly fire by UK troops on patrol. The reasoning of the lower courts or the minority of the Supreme Court in Smith would lead to the result that the dual national and the UK soldier would be within the UK’s jurisdiction, and thus entitled to the protection of Article 2 ECHR, while the other applicants would not, even though all of them were killed in exactly the same way, in exactly the same place.

In other words, the appeal of the minority approach lies precisely in the fact that we would feel it unjust if the UK government did not owe human rights obligations to its own soldiers in Iraq, while our feelings may be more mixed when it comes to Iraqi civilians shot on patrol. We simply care more about ‘our boys’, then about their enemies or even their victims. The Smith approach is about ‘us’ versus ‘them,’ if not openly so, and is antithetical to the whole idea of universality. This is not to say that nationality or membership in the armed forces are totally irrelevant for the substantive application of human rights norms. Obviously, only a UK national would have the right to vote at any UK election organized abroad, and only a UK national would have the right to return to the UK as his own country. This, however, only depends on the content of a very limited set of rights, but the application of the ECHR as such cannot depend on nationality or any other personal status.

In short, while it may be artificial to say that a UK soldier would be protected by the ECHR while on a UK base, but not off it, this is no more artificial than saying that an Iraqi national is protected by the ECHR while on a UK base or while in UK custody, but not on the streets of Basra, as was the result in Al-Skeini. Thus, though Lord Phillips’ judgment for the majority mainly rests on considerations of practicality or effectiveness to deny the extraterritorial applicability of the ECHR to UK soldiers abroad on account of their status, I would submit that, more fundamentally (and perhaps with a degree of irony), this is the only result consistent with universality as the normative foundation of the ECHR and all other human rights treaties – unless, of course, it is Bankovic and Al-Skeini themselves which are wrongly decided.

(For more commentary, see the UK Human Rights Blog and UK Supreme Court Blog, here and here).