United Kingdom of Great Britain and Northern Ireland
Practice Relating to Rule 89. Violence to Life
The UK Military Manual (1958) provides that “a commander may not put his prisoners of war to death”, that “it is unlawful for a commander to kill prisoners of war on grounds of self-preservation” and that “any attempts on [the lives of the wounded and sick] … are strictly prohibited”.
The manual also states that it is prohibited to “take any measure of such a character as to cause … extermination of protected persons”.
The manual further states that wilful killing of persons protected by the 1949 Geneva Conventions is a grave breach of these instruments.
The manual also provides that “the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognised as indispensable by civilised peoples” is prohibited at any time.
The manual also states: “In addition to the ‘grave breaches’ of the 1949 [Geneva] Conventions, … the following are examples of punishable violations of the laws of war, or war crimes: … killing without trial of … saboteurs, partisans and others who have committed hostile acts”.
The UK LOAC Pamphlet (1981) restates the provisions of common Article 3 of the 1949 Geneva Conventions and provides: “Murder or violence to the person [is] strictly prohibited.”
The UK LOAC Manual (2004) states in its chapter on the protection of civilians in the hands of a party to the conflict:
The following acts are prohibited “at any time and in any place whatsoever”:
a. violence to the life, health or physical or mental well-being of persons, in particular:
(1) murder …
In its chapter on prisoners of war, the manual states:
In relation to prisoners of war the following acts and omissions by the detaining power are prohibited:
a. Those unlawfully causing death …
[emphasis in original]
With regard to internal armed conflict, the manual restates the provisions of common Article 3 of the 1949 Geneva Conventions:
Under the terms of Common Article 3, the parties to a non-international armed conflict occurring in the territory of a party to the Conventions are obliged to apply “as a minimum”, the following provisions:
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds…
(d) … the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
In its discussion on starvation as a method of warfare, the manual further provides: “The right to life is a non-derogable human right. Violence to the life and person of civilians is prohibited, whatever method is adopted to achieve it.”
In its chapter on enforcement of the law of armed conflict, the manual further notes:
Grave breaches under the Geneva Conventions consist of any of the following acts against persons or property protected under the provisions of the relevant convention:
a. wilful killing.
The UK Geneva Conventions Act (1957), as amended in 1995, punishes “any person, whatever his nationality, who, whether in or outside the United Kingdom, commits, or aids, abets or procures the commission by any other person of, a grave breach of any of the [1949 Geneva] conventions”.
Under the UK War Crimes Act (1991), proceedings for murder, manslaughter or culpable homicide may be brought against a person in the United Kingdom irrespective of his or her nationality if that offence, inter alia
, constituted a violation of the laws and customs of war.
Under the UK ICC Act (2001), it is a punishable offence to commit genocide as defined in Article 6(a) of the 1998 ICC Statute, a crime against humanity as defined in Article 7(1)(a) of the Statute and a war crime as defined in Article 8(2)(a)(i), 8(2)(c)(i) and 8(2)(c)(iv) of the Statute.
In its judgment in the Sandrock case (Almelo Trial)
in 1945, the UK Military Court at Almelo found the accused, four German non-commissioned officers, guilty of the execution of a civilian believed to be evading military service.
The court also found that “killing captured members of the opposing forces or civilian inhabitants of occupied territories suspected of … treason unless their guilt had been established by a court of law” amounts to a war crime.
In its judgment in the Rohde case
in 1947, the UK Military Court at Wuppertal found that “executions in the absence of a fair trial” amounted to war crimes.
In 2007, in the Al-Skeini case, the House of Lords was called upon to decide whether the 1998 UK Human Rights Act and the 1950 European Convention on Human Rights had extraterritorial application. The facts of the case, as summarized by Lord Bingham, were as follows:
Mr Hazim Jum’aa Gatteh Al−Skeini was shot dead on 4 August 2003 by a member of a British military patrol in Basra. The claimant is his brother. Very different accounts of the incident have been given by the claimant and his witnesses on one side and British military witnesses on the other.
Mr Muhammad Abdul Ridha Salim was fatally wounded on 6 November 2003 when British troops raided a house in Basra where he was. He received medical attention but died on 7 November 2003. The claimant is his widow. There is again a radical divergence between the respective parties’ accounts of this incident.
Mrs Hannan Mahaibas Sadde Shmailawi was shot and fatally wounded on 10 November 2003 in the Institute of Education in Basra. On the British military account she was shot unintentionally during an exchange of fire between a British patrol and a number of gunmen. The claimant is the widower of the deceased, who accepts that the shooting of his wife was not intentional. It appears that she may have been a very unfortunate bystander, and the Secretary of State does not accept that the fatal shot was fired by a British soldier rather than a gunman.
Mr Waleed Sayay Muzban was shot and fatally injured on the night of 24 August 2003 in Basra. He was driving a people-carrier when he was shot, and he died the next day. The shooting occurred when a British military patrol was, on its account, carrying out a perimeter check and the vehicle, having initially stopped, was driven away and appeared to present a threat. The claimant is the brother of the deceased.
Mr Raid Hadi Sabir Al Musawi was shot and fatally wounded by a member of a British military patrol in Basra on 26 August 2003. He died nine weeks later, on 6 November 2003. The claimant is his mother. The parties’ respective accounts of what happened, as in the first case (which, on the facts, it resembles), are radically divergent.
Mr Baha Mousa was employed as a receptionist at a hotel in Basra and was working there on the morning of 14 September 2003 when British troops entered the hotel. He was seized and detained and taken to a British military base in Basra. At the base he was brutally beaten by British troops. He died of the injuries so inflicted during the night of 15 September 2003. The claimant is the father of the deceased, and is a colonel in the Basra police. This deceased, unlike the others, was killed by British troops when held as a prisoner in a British military detention unit. This is the limited basis upon which the Divisional Court held that this case falls within the scope of the Convention, and this is the basis upon which the Secretary of State accepts that finding.
In a 2004 judgment (R. (on the application of Al-Skeini and others) v. Secretary of State for Defence,  EWHC 2911 (Admin), Judgment of 14 December 2004), the England and Wales High Court of Justice, Divisional Court, had decided that the first five cases fell outside the scope of the 1950 European Convention on Human Rights and the UK 1998 Human Rights Act, but that the European Convention and the Human Rights Act applied to the sixth case and that in that case the United Kingdom had violated its procedural duties under Articles 2 and 3 of the European Convention on Human Rights.
On the claimants’ appeal against the decision regarding the first five cases and the Secretary of State’s cross-appeal against the decision regarding the sixth case, the England and Wales Court of Appeal, in a 2005 judgment (R. (on the application of Al-Skeini and others) v. Secretary of State for Defence,  EWCA Civ 1609, Judgment of 21 December 2005), on the basis of a slightly different argumentation, also concluded that the European Convention and the Human Rights Act did not apply to the first five cases, but that the European Convention and the Human Rights Act applied to the sixth case.
Before the House of Lords, the claimants appealed the Court of Appeal’s ruling that neither the European Convention nor the Human Rights Act applied to the first five cases; the Secretary of State cross-appealed the ruling that the Human Rights Act applied to the sixth case, now accepting the European Convention’s applicability to that case.
The majority of the House of Lords, Lord Bingham dissenting, dismissed the Secretary of State’s cross-appeal relating to the sixth case, ruling that the UK Human Rights Act had extraterritorial application to situations where the United Kingdom had jurisdiction within the meaning of Article 1 of the European Convention on Human Rights. The House unanimously dismissed the appeals relating to the first five cases, ruling that neither the UK Human Rights Act nor the European Convention on Human Rights applied to these cases.
With regard to the extraterritorial applicability of the UK Human Rights Act, Lord Rodger gave the leading opinion:
34. The claimants in these six cases are all relatives of Iraqi citizens who were killed in southern Iraq between 4 August and 10 November 2003. Except in the case of the third appellant, the Secretary of State for Defence accepts that the relatives were killed by members of the British forces. In February 2004 the representative of the appellants wrote to the Secretary of State asking him to hold a public inquiry into their relatives’ deaths. By letter dated 26 March 2004 the Secretary of State indicated that he would not hold such an inquiry. The claimants seek judicial review of that decision on the ground that it was unlawful in terms of section 6 of the Human Rights Act 1998 (“the 1998 Act”) since it was incompatible with the claimants’ article 2 “Convention right” as set out in the Schedule to the Act. For his part, the Secretary of State says that his decision was lawful since the 1998 Act does not apply in the circumstances of these cases. In particular, he argues, first, that the 1998 Act does not apply outside the territory of the United Kingdom and, secondly, that, in any event, with the exception of the relative of the sixth appellant, the deceased were not within the jurisdiction of the United Kingdom in terms of article 1 of the European Convention when they were killed.
36. As was explained in In re McKerr  1 WLR 807, the Convention right of a relative under article 2 to insist on an inquiry being held where a death has been caused by agents of the state is procedural or adjectival. In domestic law it arises only where the killing itself could be unlawful under section 6 of the 1998 Act by reason of being incompatible with article 2 as set out in the Schedule. For that reason, the key question in these appeals is whether the killing of these individuals by British forces in Iraq could be unlawful under section 6 of the Act.
37. Section 6(1) provides: “It is unlawful for a public authority to act in a way which is incompatible with a Convention right.” The words are quite general and, on its face, the provision contains no geographical limitation hence the issue between the parties about its proper scope. The Secretary of State points out that Parliament has not chosen to use the kind of specific wording that would show that it was intended to apply outside the United Kingdom. That comment is, of course, correct, but it does not really go anywhere since the Secretary of State is merely drawing attention to a defining feature of any case where the issue is whether a statute is to be construed as applying, by implication, to conduct outside the United Kingdom.
44. So far as the application of statutes is concerned, there is a general rule that legislation does not apply to persons and matters outside the territory to which it extends: Bennion, Statutory Interpretation , p 306. But the cases show that the concept of the territoriality of legislation is quite subtle − “slippery” is how Lord Nicholls of Birkenhead described it in R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs  1 AC 529, 545, para 32.
45. Behind the various rules of construction, a number of different policies can be seen at work. For example, every statute is interpreted, “so far as its language permits, so as not to be inconsistent with the comity of nations or the established rules of international law”: Maxwell on The Interpretation of Statutes (12th edition, 1969), p 183. It would usually be both objectionable in terms of international comity and futile in practice for Parliament to assert its authority over the subjects of another sovereign who are not within the United Kingdom. So, in the absence of any indication to the contrary, a court will interpret legislation as not being intended to affect such people. They do not fall within “the legislative grasp, or intendment,” of Parliament’s legislation, to use Lord Wilberforce’s expression in Clark v Oceanic Contractors Inc  2 AC 130, 152C−D. In Ex p Blain (1879) 12 Ch D 522 the question was whether the court had jurisdiction, by virtue of the Bankruptcy Act 1869, to make an adjudication of bankruptcy against a foreigner, domiciled and resident abroad, who had never been in England. James LJ said, at p 526: “But, if a foreigner remains abroad, if he has never come into this country at all, it seems to me impossible to imagine that the English legislature could have ever intended to make such a man subject to particular English legislation.” On this general approach, for instance, there can be no doubt that, despite the lack of any qualifying words, section 6(1) of the 1998 applies only to United Kingdom public authorities and not to the public authorities of any other state.
46. Subjects of the Crown, British citizens, are in a different boat. International law does not prevent a state from exercising jurisdiction over its nationals travelling or residing abroad, since they remain under its personal authority: Oppenheim’s International Law (ninth edition, 1992), vol 1, para 138. So there can be no objection in principle to Parliament legislating for British citizens outside the United Kingdom, provided that the particular legislation does not offend against the sovereignty of other states. In Ex p Blain (1879) 12 Ch D 522, 531−532, Cotton LJ explained the position in this way:
“All we have to do is to interpret an Act of Parliament which uses a general word, and we have to say how that word is to be limited, when of necessity there must be some limitation. I take it the limitation is this, that all laws of the English Parliament must be territorial – territorial in this sense, that they apply to and bind all subjects of the Crown who come within the fair interpretation of them, and also all aliens who come to this country, and who, during the time they are here, do any act which, on a fair interpretation of the statute as regards them, comes within its provision. … As regards an Englishman, a subject of the British Crown, it is not necessary that he should be here, if he has done that which the Act of Parliament says shall give jurisdiction, because he is bound by the Act by reason of his being a British subject, though, of course, in the case of a British subject not resident here, it may be a question on the construction of the Act of Parliament whether that which, if he had been resident here, would have brought him within the Act, has that effect when he is not resident here.”
Restating the position in the language of the 1980s, in Clark v Oceanic Contractors Inc  2 AC 130, 145D−E, Lord Scarman said that the general principle is simply that:
“unless the contrary is expressly enacted or so plainly implied that the courts must give effect to it, United Kingdom legislation is applicable only to British subjects or to foreigners who by coming to the United Kingdom, whether for a short or a long time, have made themselves subject to British jurisdiction.”
47. The cases indicate, therefore, that British individuals or firms or companies or other organisations readily fall within the legislative grasp of statutes passed by Parliament. So far as they are concerned, the question is whether, on a fair interpretation, the statute in question is intended to apply to them only in the United Kingdom or also, to some extent at least, beyond the territorial limits of the United Kingdom. Here, there is no doubt that section 6 applies to public authorities such as the armed forces within the United Kingdom: the only question is whether, on a fair interpretation, it is confined to the United Kingdom.
48. Even in the case of British citizens, a court may readily infer that legislation is not intended to apply to them outside the United Kingdom. See Maxwell on The Interpretation of Statutes , p 171: “In the absence of an intention clearly expressed or to be inferred either from its language, or from the object or subject-matter or history of the enactment, the presumption is that Parliament does not design its statutes to operate on its subjects beyond the territorial limits of the United Kingdom.” In Tomalin v S Pearson & Son Ltd  2 KB 61, 64, Cozens-Hardy MR approved an earlier version of this statement. The court held that the Workmen’s Compensation Act 1906 did not apply where a workman, employed by a British company, had been killed in the course of his employment in Malta. Leaving aside the rule of construction, various provisions of the Act indicated that it was only intended to apply in certain specific circumstances outside the United Kingdom.
49. Again, this rule of construction has to be seen against the background of international law. One state is bound to respect the territorial sovereignty of another state. So, usually, Parliament will not mean to interfere by legislating to regulate the conduct of its citizens in another state. Such legislation would usually be unnecessary and would often be, in any event, ineffective. But sometimes Parliament has a legitimate interest in regulating their conduct and so does indeed intend its legislation to affect the position of British citizens in other states. For example, section 72 of the Sexual Offences Act 2003 makes certain nasty sexual conduct in other countries an offence under English law. So, if the words of a statute are open to more than one interpretation, whether or not it binds British citizens abroad “seems to depend … entirely on the nature of the statute”: Maxwell on The Interpretation of Statutes , p 169.
50. The books therefore contain examples of cases where, because of its nature, legislation has been held to apply to British subjects outside the United Kingdom …
52. … In the same way, when considering the application of the 1998 Act, it is necessary to have regard to its overall nature and purpose.
53. In the first place, the burden of the legislation falls on public authorities, rather than on private individuals or companies. Most of the functions of United Kingdom public authorities relate to this country and will therefore be carried out here. Moreover, exercising their functions abroad would often mean that the public authorities were encroaching on the sovereignty of another state. Nevertheless, where a public authority has power to operate outside of the United Kingdom and does so legitimately − for example, with the consent of the other state in the absence of any indication to the contrary, when construing any relevant legislation, it would only be sensible to treat the public authority, so far as possible, in the same way as when it operates at home.
54. The purpose of the 1998 Act is to provide remedies in our domestic law to those whose human rights are violated by a United Kingdom public authority. Making such remedies available for acts of a United Kingdom authority on the territory of another state would not be offensive to the sovereignty of the other state. There is therefore nothing in the wider context of international law which points to the need to confine sections 6 and 7 of the 1998 Act to the territory of the United Kingdom.
55. One possible reason for confining their application in that way would, however, be if their scope would otherwise be unlimited and they would, potentially at least, confer rights on people all over the world with little or no real connexion with the United Kingdom. There is, however, no such danger in this case since the 1998 Act has a built-in limitation. By section 7(1) and (7), only those who would be victims for the purposes of article 34 of the Convention in proceedings in the Strasbourg Court can take proceedings under the 1998 Act. Before they could sue, claimants would therefore have to be “within the jurisdiction” of the United Kingdom in terms of article 1 of the Convention. Whatever the precise boundaries of that limitation, it blunts the objection that a narrow construction of the territorial application of the Act is the only way to prevent it having extravagant effects which could never have been intended. The requirement for a claimant to be within the jurisdiction of the United Kingdom is a further assurance that, if the Act were interpreted and applied in that way, the courts in this country would not be interfering with the sovereignty or integrity of another state.
56. By this somewhat circuitous route, I arrive at what is surely the crucial argument in favour of the wider interpretation of section 6. The Secretary of State accepts that “the central purpose” of Parliament in enacting sections 6 and 7 was “to provide a remedial structure in domestic law for the rights guaranteed by the Convention”: Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank  1 AC 546, 564, para 44, per Lord Hope of Craighead. In other words, claimants were to be able to obtain remedies in United Kingdom courts, rather than having to go to Strasbourg. The Secretary of State also accepts that, while the jurisdiction of states for the purposes of article 1 of the Convention is essentially territorial, in exceptional cases, “acts of the contracting states performed, or producing effects, outside their territories can constitute an exercise of jurisdiction by them within the meaning of article 1 of the convention": Bankovic v Belgium (2001) 11 BHRC 435, 450, para 67. Nevertheless, the Secretary of State says that sections 6 and 7 are to be interpreted in such a way that, in these exceptional cases, a victim is left remediless in the British courts. Contrary to the central policy of the Act, the victim must resort to Strasbourg.
57. My Lords, I am unable to accept that submission. It involves reading into sections 6 and 7 a qualification which the words do not contain and which runs counter to the central purpose of the Act. That would be to offend against the most elementary canons of statutory construction which indicate that, in case of doubt, the Act should be read so as to promote, not so as to defeat or impair, its central purpose. If anything, this approach is even more desirable in interpreting human rights legislation. As Lord Brown of Eaton-under-Heywood points out, this interpretation also ensures that, in these exceptional cases, the United Kingdom is not in breach of its article 13 obligation to afford an effective remedy before its courts to anyone whose human rights have been violated within its jurisdiction.
58. The speech of Lord Nicholls of Birkenhead in R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs  1 AC 529, 546, para 34, provides powerful support for that approach:
“To this end the obligations of public authorities under sections 6 and 7 mirror in domestic law the treaty obligations of the United Kingdom in respect of corresponding articles of the Convention and its protocols. That was the object of these sections. As my noble and learned friend, Lord Hope of Craighead, has said, the ‘purpose of these sections is to provide a remedial structure in domestic law for the rights guaranteed by the Convention’: Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank  1 AC 546, 564, para 44. Thus, and this is the important point for present purposes, the territorial scope of the obligations and rights created by sections 6 and 7 of the Act was intended to be co-extensive with the territorial scope of the obligations of the United Kingdom and the rights of victims under the Convention. The Act was intended to provide a domestic remedy where a remedy would have been available in Strasbourg. Conversely, the Act was not intended to provide a domestic remedy where a remedy would not have been available in Strasbourg. Accordingly, in order to identify the territorial scope of a ‘Convention right’ in sections 6 and 7 it is necessary to turn to Strasbourg and consider what, under the Convention, is the territorial scope of the relevant Convention right.”
Lord Nicholls confirms that, in interpreting the rights in the Schedule, courts must take account of the territorial scope of the relevant right under the Convention. In the present case, that means having regard to those exceptional situations where article 2 would apply outside the territory of the United Kingdom. In other words, on a fair interpretation, article 2 in the Schedule to the Act must be read as applying wherever the United Kingdom has jurisdiction in terms of article 1 of the Convention. The corollary is that section 6 must also be interpreted as applying in the same circumstances.
59. For these reasons, section 6 should be interpreted as applying not only when a public authority acts within the United Kingdom but also when it acts within the jurisdiction of the United Kingdom for purposes of article 1 of the Convention, but outside the territory of the United Kingdom.
60. The Secretary of State’s cross appeal must therefore be dismissed.
With regard to the extraterritorial applicability of the 1950 European Convention on Human Rights, Lord Brown gave the leading opinion:
100. These appeals arise out of the deaths of six Iraqi civilians caused by the actions of British soldiers in southern Iraq in the latter part of 2003 (between the cessation of major combat operations and the handover of sovereignty to the Iraqi interim government). Five of the deceased were shot in the course of security operations (one in crossfire); the sixth died following gross ill-treatment whilst in custody in a UK military detention facility. The appellants are their relatives who in each case seek principally Convention-compliant investigations into the respective killings and, in the long run, damages.
101. It need hardly be said that all these deaths (and the thirty or so more leading to further claims now stayed pending the outcome of these proceedings) are greatly to be regretted, and the sixth utterly deplored. The issues now arising, however, have to be decided by reference to legal principle, not out of sympathy.
102. Your Lordships are here called on to decide two very important questions which arise by way of preliminary issue. One concerns the reach of the European Convention on Human Rights: Who, within the meaning of article 1 of the Convention, is to be regarded as “within [a contracting party’s] jurisdiction” so as to require that state to “secure to [them] the rights and freedoms” defined in the Convention? The other concerns the reach of the Human Rights Act 1998 (the Act), the only basis on which the domestic courts have jurisdiction to hear human rights claims: Does the Act apply extra-territorially and, if so, in what way?
103. These might be thought to be discrete questions, wholly unrelated to each other. But I question this. Suppose that article 1 of the Convention applies only to the extent contended for here by the respondent Secretary of State, with just a limited extra-territorial reach in certain closely defined circumstances. To conclude that Parliament intended the Act to apply to these few additional cases as well as to the great majority of cases where the Convention is breached within the UK’s own borders would be one thing. To reach that conclusion, however, were the Convention found to extend as widely as the appellants (supported by the interveners) contend, encompassing not merely all the present claims but, it may be, others still more contentious, might be regarded as another thing entirely. I propose, therefore, to consider first the reach of the Convention.
Article 1 − the reach of the Convention
105. The ultimate decision upon this question, of course, must necessarily be for the European Court of Human Rights. As Lord Bingham of Cornhill observed in R (Ullah) v Special Adjudicator  2 AC 323, 350 (para 20), “the Convention is an international instrument, the correct interpretation of which can be authoritatively expounded only by the Strasbourg court.” In the same paragraph Lord Bingham made two further points: first, that a national court “should not without strong reason dilute or weaken the effect of the Strasbourg case law”; secondly that, whilst member States can of course legislate so as to provide for rights more generous than those guaranteed by the Convention, national courts should not interpret the Convention to achieve this: the Convention must bear the same meaning for all states party to it. Para 20 ends:
“The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less.”
106. I would respectfully suggest that last sentence could as well have ended: “no less, but certainly no more.” There seems to me, indeed, a greater danger in the national court construing the Convention too generously in favour of an applicant than in construing it too narrowly. In the former event the mistake will necessarily stand: the member state cannot itself go to Strasbourg to have it corrected; in the latter event, however, where Convention rights have been denied by too narrow a construction, the aggrieved individual can have the decision corrected in Strasbourg. Ullah, of course, was concerned with the particular scope of individual Convention rights, there article 9, in the context of removing non-nationals from a member state. Lord Bingham’s cautionary words must surely apply with greater force still to a case like the present. As the Grand Chamber observed in Bankovic v Belgium (2001) 11 BHRC 435, 449 (para 65):
“the scope of article 1 … is determinative of the very scope of the contracting parties’ positive obligations and, as such, of the scope and reach of the entire Convention system of human rights' protection.”
107. Your Lordships accordingly ought not to construe article 1 as reaching any further than the existing Strasbourg jurisprudence clearly shows it to reach. How far is that and, more particularly, (a) does article 1 encompass the first five appellants and (b) on what basis does it encompass the sixth appellant (as, following the Divisional Court's judgment, the respondent concedes it does); is this on the narrow basis (found by the Divisional Court) that detention in a British military facility, operated with the consent of the Iraqi sovereign authorities, falls within the same exceptional category as embassies and consulates, or on the wider basis (found by the Court of Appeal) that Mr Mousa, from the moment of his arrest, “came within the control and authority of the UK”, or on a wider basis still (as the appellants contend and as would be necessary were it to avail the other appellants too)?
108. In considering how far Strasbourg has gone in extending article 1 jurisprudence extra-territorially, I propose to take as my starting point the decision of the Grand Chamber in Bankovic. This I have no doubt the Divisional Court was right to describe (at para 268) as “a watershed authority in the light of which the Strasbourg jurisprudence as a whole has to be re-evaluated”. The case was referred to the Grand Chamber specifically for a definitive judgment on this fundamental issue. It was fully argued, and the judgment, which was unanimous, was fully reasoned. The travaux préparatoires, the entire previous case law of the Commission and the Court, the Vienna Convention on the Law of Treaties (1969), the practice of the contracting states with regard to derogating for extra-territorial military operations (none had ever done so), comparative case law and the international law background were for the first time all considered in a single judgment.
109. Lengthy extracts from Bankovic have already been set out in the judgments of the courts below and I shall not repeat them. Rather I shall at once set out certain central propositions for which in my judgment Bankovic stands:
(1) Article 1 reflects an “essentially territorial notion of jurisdiction” (a phrase repeated several times in the Court's judgment), “other bases of jurisdiction being exceptional and requiring special justification in the particular circumstances of each case” (para 61). The Convention operates, subject to article 56, “in an essentially regional context and notably in the legal space (espace juridique) of the contracting states” (para 80) (ie within the area of the Council of Europe countries).
(2) The Court recognises article 1 jurisdiction to avoid a “vacuum in human rights’ protection” when the territory “would normally be covered by the Convention” (para 80) (ie in a Council of Europe country) where otherwise (as in Northern Cyprus) the inhabitants “would have found themselves excluded from the benefits of the Convention safeguards and system which they had previously enjoyed” (para 80).
(3) The rights and freedoms defined in the Convention cannot be “divided and tailored” (para 75).
(4) The circumstances in which the Court has exceptionally recognised the extra-territorial exercise of jurisdiction by a state include:
(i) Where the 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 [the government of that territory]” (para 71) (ie when otherwise there would be a vacuum within a Council of Europe country, the government of that country itself being unable “to fulfil the obligations it had undertaken under the Convention” (para 80) (as in Northern Cyprus).
(ii) “Cases involving the activities of its diplomatic or consular agents abroad and on board craft and vessels registered in, or flying the flag of, that state [where] customary international law and treaty provisions have recognised the extra-territorial exercise of jurisdiction” (para 73).
(iii) Certain other cases where a state’s responsibility “could, in principle, be engaged because of acts × which produced effects or were performed outside their own territory” (para 69). Drozd v France (1992) 14 EHRR 745 (at para 91) is the only authority specifically referred to in Bankovic as exemplifying this class of exception to the general rule. Drozd, however, contemplated no more than that, if a French judge exercised jurisdiction extra-territorially in Andorra in his capacity as a French judge, then anyone complaining of a violation of his Convention rights by that judge would be regarded as being within France's jurisdiction.
(iv) The Soering v United Kingdom (1989) 11 EHRR 439 line of cases, the Court pointed out, involves action by the state whilst the person concerned is “on its territory, clearly within its jurisdiction” (para 68) and not, therefore, the exercise of the state’s jurisdiction abroad. There is, on the face of it, nothing in Bankovic which gives the least support to the appellants’ arguments.
110. Before turning to examine whether subsequent Strasbourg jurisprudence has weakened these principles, it is, I think, instructive first to consider the implications of article 56 of the Convention, an article mentioned in Bankovic merely as a provision which “enables a contracting state to declare that the Convention shall extend to all or any of the territories for whose international relations that state is responsible” (para 80).
111. When under article 56 a state chooses to extend the Convention to a dependent territory (ex hypothesi not within the Council of Europe area - see, for example, Tyrer v United Kingdom (1978) 2 EHRR 1, at para 38), the Convention is applied “with due regard … to local requirements” (article 56(3)). Py v France (2005) 42 EHRR 548, where voting restrictions in New Caledonia were found justified, provides an up to date illustration of this.
112. Save under article 56, the Convention cannot apply to dependent territories. In particular, as the Court recently explained in Quark v United Kingdom (2006) 44 EHRR SE 70, the “effective control principle” does not apply to them.
113. How then could that principle logically apply to any other territory outside the area of the Council of Europe? As the respondent submits, it would be a remarkable thing if, by the exercise of effective control, for however short a time, over non-Council of Europe territory, a state could be fixed with the article 1 obligation to secure within that territory, without regard to local requirements, all Convention rights and freedoms whereas, despite its exercise of effective control over a dependent territory, perhaps for centuries past, the state will not be obliged to secure any Convention rights there unless it has made an article 56 declaration and even then it would be able to rely on local requirements.
114. It may be noted that thirty years ago Turkey unsuccessfully sought to rely (directly or by analogy) on article 56 (then article 63) to contest its liability to secure Convention rights for the inhabitants of Northern Cyprus unless it chose to do so – Cyprus v Turkey (1978) 21 Yearbook of the ECHR 100. The argument failed: Northern Cyprus being part of a Council of Europe country, whichever member state has effective control must secure all Convention rights. True it is that thirty years ago the reasoning of the Commission (by reference to the acts of state agents abroad) was different from that of the Strasbourg Court today: it was not until Loizidou v Turkey (Preliminary Objections) (1995) 20 EHRR 99, another Northern Cyprus case, that the Court for the first time articulated the effective control of an area principle. The logic, however, remains clear: subject only to a few narrow exceptions the Convention applies solely within the Council of Europe area and must then apply in full measure. The same point was more recently made in Ilascu v Moldova (Admissibility) (Application No 48787/99) (unreported) 4 July 2001 where the Court, rejecting Moldova's assertion that the Convention did not extend to Transdniestria, expressly distinguished a state's right not to extend the Convention to non-Council of Europe territories under article 56.
The post-Bankovic cases
115. The Grand Chamber has considered the reach of article 1 of the Convention four times since Bankovic, on each occasion expressly following the Bankovic analysis. Assanidze v Georgia (2004) 39 EHRR 653 concerned the Ajarian Autonomous Republic in Georgia over which both parties accepted that Georgia exercised jurisdiction. The Grand Chamber emphasised the exceptional nature of extra-territorial jurisdiction and confirmed the indivisible nature of article 1 jurisdiction:
“The general duty imposed on the state by article 1 of the Convention entails and requires the implementation of a national system capable of securing compliance with the Convention throughout the territory of the state for everyone” (para 147).
116. Ilascu v Moldova and Russia (2004) 40 EHRR 1030, concerned human rights in Transdniestria, an area of Moldova subject to a separatist regime supported by Russia. The Grand Chamber held by a majority of 16 to 1 that Russia exercised jurisdiction and by 11 votes to 6 that Moldova did too. Because, however, Moldova lacked effective control within its own territory it could not be held responsible for violations save to the extent that they arose out of failures by Moldova to comply with its positive obligations “to take the diplomatic, economic, judicial or other measures that it is in its power to take and are in accordance with international law to secure to the applicants the rights guaranteed by the Convention” (para 331). Judge Bratza, speaking for five of the six judges dissenting on whether Moldova exercised jurisdiction, expressed
“difficulty in accepting the proposition that those within a part of the territory of a state over which, as a result of its unlawful occupation by a separatist administration, the state is prevented from exercising any authority or control, may nevertheless be said to be within the ‘jurisdiction’ of the state according to the autonomous meaning of that term in article 1 of the Convention, which term presupposes that the state has the power ‘to secure to everyone … the rights and freedoms’ defined therein.”
Whatever view one takes of the majority’s approach, however, it cannot avail the appellants here: there was simply no question of Moldova exercising any form of extra-territorial jurisdiction.
117. Article 1 was only briefly touched on by the Grand Chamber in Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v Ireland (2005) 42 EHRR 1. Bankovic, Assanidze and Ilascu were all cited in footnotes to para 136.
118. Öcalan v Turkey (2005) 41 EHRR 985 concerned (in part) the applicant’s arrest by members of the Turkish Security Forces inside a Turkish registered aircraft in the international zone of Nairobi Airport. The Grand Chamber stated (at para 91) the basis upon which it accepted that Turkey had at that early stage exercised jurisdiction over the applicant:
“It is common ground that, directly after being handed over to the Turkish officials by the Kenyan officials, the applicant was under effective 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. It is true that the applicant was physically forced to return to Turkey by Turkish officials and was under their authority and control following his arrest and return to Turkey (see, in this respect, the aforementioned decisions in the cases of Sánchez Ramirez v France and Freda v Italy; and, by converse implication, Bankovic v Belgium ).”
119. Both Sánchez Ramirez v France (1996) 86−A DR 155 and Freda v Italy (1980) 21 DR 250 (the authorities there referred to) also concerned irregular extradition, one a revolutionary known as Carlos (the Jackal), the other an Italian. Each was taken into custody abroad, respectively by French police in Khartoum and by Italian police in Costa Rica, and flown respectively in a French military airplane to France and in an Italian Air-force plane to Italy. In each case, as in Öcalan, the forcible removal was effected with the full cooperation of the foreign authorities and with a view to the applicant's criminal trial in the respondent state. Unsurprisingly in these circumstances the Grand Chamber in Öcalan had felt able to distinguish Bankovic “by converse implication”.
120. This line of cases clearly constitutes one category of “exceptional” cases expressly contemplated by Bankovic as having “special justification” for extraterritorial jurisdiction under article 1.
121. Another category, similarly recognised in Bankovic, was Drozd (see para 109(4)(iii) above ) into which category can also be put cases like X and Y v Switzerland (1977) 9 DR 57 and Gentilhomme v France (Application No 48205/99) (unreported) 14 May 2002. In X and Y v Switzerland , Switzerland was held to be exercising jurisdiction where, pursuant to treaty provisions with Liechtenstein, it legislated for immigration matters in both states, prohibiting X from entering either. In Gentilhomme, France operated French state schools in Algeria, again pursuant to a treaty arrangement.
122. The cases involving the activities of embassies and consulates (see para 109(4)(ii) above) themselves subdivide into essentially two sub-categories, those concerning nationals of the respondent state and those concerning foreign nationals. The former includes cases like X v Federal Republic of Germany (1965) 8 Yearbook of the ECHR 158 and X v UK (1977) 12 DR 73; the latter cases like M v Denmark (1992) 73 DR 193 and R (B) v Secretary of State for Foreign and Commonwealth Affairs  QB 643. It is unnecessary for present purposes to consider the facts of any of them.
123. None of the cases in any of these categories appear to me in any way helpful to the first five appellants.
124. I turn, therefore, to the one post-Bankovic Strasbourg judgment upon which the appellants seek to place particular reliance: Issa v Turkey (Merits) (2004) 41 EHRR 567. Issa was not, be it noted, a judgment of the Grand Chamber (although three of its seven judges had been members of the Grand Chamber in Bankovic); nor in the event did the application succeed. It had, moreover, been found admissible in a decision (Application No 31821/96) (unreported) 30 May 2000 which pre-dated Bankovic when (as noted in the Bankovic judgment at para 81) no issue of jurisdiction had been raised.
125. The complaint in Issa concerned the activities of Turkish forces during a military campaign in northern Iraq. It was dismissed because the applicants had failed to establish that Turkish troops had “conducted operations in the area in question.” The Court, however, “[did] not exclude the possibility that, as a consequence of this military action, the respondent state could be considered to have exercised, temporarily, effective overall control of a particular portion of the territory of northern Iraq. Accordingly, if there is a sufficient factual basis for holding that, at the relevant time, the victims were within that specific area, it would follow logically that they were within the jurisdiction of Turkey …” (para 74). Earlier in its judgment, moreover, the Court had referred to the principle of effective control of the territory established in Loizidou and reiterated in Bankovic, Assanidze and Ilascu and added (at para 71):
“Moreover, a state may also be held accountable for violation of the Convention rights and freedoms of persons who are in the territory of another state but who are found to be under the former state's authority and control through its agents operating whether - lawfully or unlawfully – in the latter state (see ×
M v Denmark, × . Sánchez Ramirez v France × Coard et al v United States × and the views adopted by the Human Rights Committee × in the cases of López Burgos v Uruguay and Celibert de Casariego v Uruguay ×). Accountability in such situations stems from the fact that article 1 of the Convention cannot be interpreted so as to allow a state party to perpetrate violations of the Convention on the territory of another state, which it could not perpetrate on its own territory (ibid).”
126. This, plainly, represents the high watermark of the appellants’ case. For my part, however, I find it unconvincing. Much, of course, depends upon how precisely para 71 of Issa is to be understood. Insofar as it supports the view that article 1 jurisdiction extends to encompass cases like M v Denmark (an embassy case – see para 122 above) and Sánchez Ramirez v France (an irregular extradition case – see para 119 above) (two of the authorities cited in paragraph 71), it is plainly unexceptionable. The two cited cases involving Uruguay (López 68 ILR 29 and Celiberti de Casariego 68 ILR 41) were also concerned with irregular extraditions – of citizens of Uruguay kidnapped in respectively Argentina and Brazil by Uruguayan security forces working with their Argentine and Brazilian counterparts – and it was in these two cases that the Human Rights Commission said that “it would be unconscionable to so interpret the responsibility under article 2 of the [1966 International Covenant on Civil and Political Rights (ICCPR)] as to permit a state party to perpetrate violations of the covenant on the territory of another state, which violations it could not perpetrate on its own territory,” a comment applied without more by the Court to the ECHR itself. Coard et al v US (1999) 9 BHRC 150, the final case cited in support of para 71, had been specifically considered in Bankovic (at paras 23, 48 and 78), the Grand Chamber there noting that article 2 of the American Declaration on the Rights and Duties of Man 1948 contained no explicit limitation of jurisdiction whatever. Overall, the Grand Chamber in Bankovic (para 78) derived no assistance from “the allegedly similar jurisdiction provisions in the international instruments” (including article 2 of the ICCPR).
127. If and insofar as Issa is said to support the altogether wider notions of article 1 jurisdiction contended for by the appellants on this appeal, I cannot accept it. In the first place, the statements relied upon must be regarded as obiter dicta. Secondly, as just explained, such wider assertions of jurisdiction are not supported by the authorities cited (at any rate, those authorities accepted as relevant by the Grand Chamber in Bankovic). Thirdly, such wider view of jurisdiction would clearly be inconsistent both with the reasoning in Bankovic and, indeed, with its result. Either it would extend the effective control principle beyond the Council of Europe area (where alone it had previously been applied, as has been seen, to Northern Cyprus, to the Ajarian Autonomous Republic in Georgia and to Transdniestria) to Iraq, an area (like the FRY considered in Bankovic) outside the Council of Europe and, indeed, would do so contrary to the inescapable logic of the Court's case law on article 56. Alternatively it would stretch to breaking point the concept of jurisdiction extending extra-territorially to those subject to a state’s “authority and control". It is one thing to recognise as exceptional the specific narrow categories of cases I have sought to summarise above; it would be quite another to accept that whenever a contracting state acts (militarily or otherwise) through its agents abroad, those affected by such activities fall within its article 1 jurisdiction. Such a contention would prove altogether too much. It would make a nonsense of much that was said in Bankovic, not least as to the Convention being “a constitutional instrument of European public order”, operating “in an essentially regional context”, “not designed to be applied throughout the world, even in respect of the conduct of contracting states” (para 80). It would, indeed, make redundant the principle of effective control of an area: what need for that if jurisdiction arises in any event under a general principle of “authority and control” irrespective of whether the area is (a) effectively controlled or (b) within the Council of Europe?
128. There is one other central objection to the creation of the wide basis of jurisdiction here contended for by the appellants under the rubric “control and authority”, going beyond that arising in any of the narrowly recognised categories already discussed and yet short of that arising from the effective control of territory within the Council of Europe area. Bankovic (and later Assanidze) stands, as stated, for the indivisible nature of article 1 jurisdiction: it cannot be “divided and tailored". As Bankovic had earlier pointed out (at para 40) “the applicant's interpretation of jurisdiction would invert and divide the positive obligation on contracting states to secure the substantive rights in a manner never contemplated by article 1 of the Convention.” When, moreover, the Convention applies, it operates as “a living instrument.” Öcalan provides an example of this, a recognition that the interpretation of article 2 has been modified consequent on “the territories encompassed by the member states of the Council of Europe [having] become a zone free of capital punishment” (para 163). (Paragraphs 64 and 65 of Bankovic , I may note, contrast on the one hand “the Convention's substantive provisions” and “the competence of the Convention organs”, to both of which the “living instrument” approach applies and, on the other hand, the scope of article 1” the scope and reach of the entire Convention” to which it does not.) Bear in mind too the rigour with which the Court applies the Convention, well exemplified by the series of cases from the conflict zone of south eastern Turkey in which, the state's difficulties notwithstanding, no dilution has been permitted of the investigative obligations arising under articles 2 and 3.
129. The point is this: except where a state really does have effective control of territory, it cannot hope to secure Convention rights within that territory and, unless it is within the area of the Council of Europe, it is unlikely in any event to find certain of the Convention rights it is bound to secure reconcilable with the customs of the resident population. Indeed it goes further than that. During the period in question here it is common ground that the UK was an occupying power in Southern Iraq and bound as such by Geneva IV and by the Hague Regulations. Article 43 of the Hague Regulations provides that the occupant “shall take all the measures in his power to restore and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.” The appellants argue that occupation within the meaning of the Hague Regulations necessarily involves the occupant having effective control of the area and so being responsible for securing there all Convention rights and freedoms. So far as this being the case, however, the occupants' obligation is to respect “the laws in force", not to introduce laws and the means to enforce them (for example, courts and a justice system) such as to satisfy the requirements of the Convention. Often (for example where Sharia law is in force) Convention rights would clearly be incompatible with the laws of the territory occupied.
130. Realistically the concept of the indivisibility of the Convention presents no problem in the categories of cases discussed in paras 119–126 above: these concern highly specific situations raising only a limited range of Convention rights.
131. In my judgment Issa should not be read as detracting in any way from the clear – and clearly restrictive – approach to article 1 jurisdiction adopted in Bankovic. I recognise that in two later decisions other chambers of the Court have, as so commonly occurs in Strasbourg judgments, repeated the substance of para 71 of Issa. But in neither of them does there appear to have been any relevant argument on the reach of article 1. Isaak v Turkey (Application No 44587) (unreported) 28 September 2006 concerned the death of a demonstrator through the actions of Turkish protesters and police in the UN buffer zone separating northern Cyprus from the south. The Court held (at page 20) that “Turkey’s jurisdiction must be considered to extend to securing the entire range of substantive rights set out in the Convention and those additional protocols which she has ratified, and that violations of those rights are imputable to Turkey.” Ben El Mahi v Denmark (Application No 5853/06) (unreported) 11 December 2006 concerned the publication in Denmark of cartoons allegedly breaching the Moroccan applicants’ article 9 rights. The application was unsurprisingly ruled inadmissible on the ground that there was no “jurisdictional link” between the respondent state and the applicants.
132. Taken as a whole, therefore, and according particular weight to Grand Chamber judgments, so far from weakening the principles established in Bankovic, subsequent Strasbourg case law to my mind reinforces them. Certainly, whatever else may be said of the Strasbourg jurisprudence, it cannot be said to establish clearly that any of the first five appellants come within the UK’s article 1 jurisdiction. As for the sixth case, I for my part would recognise the UK’s jurisdiction over Mr Mousa only on the narrow basis found established by the Divisional Court, essentially by analogy with the extra-territorial exception made for embassies (an analogy recognised too in Hess v United Kingdom (1975) 2 DR 72, a Commission decision in the context of a foreign prison which had itself referred to the embassy case of X v Federal Republic of Germany) …
151. In the final result I would dismiss the appeals of each of the first five appellants and dismiss too the cross-appeal by the respondent as to the applicability of the Human Rights Act to the sixth appellant’s case. That being so it is agreed between the parties that, in the light of factual developments since the Court of Appeal’s order, the sixth appellant’s case should be remitted to the Divisional Court to join the other cases which have been stayed for the substantive issues to be decided in the light of up to date evidence and amended pleadings.
[emphasis in original]
In summary, the UK 1998 Human Rights Act and the 1950 European Convention on Human Rights were found to be applicable to the sixth case, the ill-treatment and subsequent death of Mr Mousa in a British armed forces detention facility in Basra in September 2003, the detention facility being under the United Kingdom’s jurisdiction within the meaning of Article 1 of the European Convention. In contrast, the Human Rights Act and the European Convention were found not to be applicable to cases one to five, the killings occasioned or allegedly occasioned by UK military action in Basra between August and November 2003.
In its written statement submitted to the ICJ in the Nuclear Weapons case
in 1995, the United Kingdom stated that it was entirely appropriate that the human rights agreements should, in effect, refer to the law of armed conflict in order to determine whether or not any particular instance of the deprivation of life in wartime was arbitrary.
In 2003, during a debate in the House of Commons, the UK Prime Minister stated:
As the right hon. Gentleman knows, the United States is now talking about the right method by which to try anybody against whom charges would be brought. We will make active representations to the United States – indeed, we are already doing so – to make absolutely sure that any such trial will take place in accordance with proper international law.
It is of course important that the commission that tries these people is conducted according to proper rules. Those rules have not yet been drawn up, and it is precisely for that reason that we are making active representations, and our opposition to the death penalty is well known.
… It is worth remembering that the allegations revolve around what happened in Afghanistan some time ago, when British and American troops were putting their lives at risk there.
In 2003, in a reply to a written question in the House of Commons, the UK Solicitor-General wrote:
The Attorney-General has been involved in discussions within Government about the position of UK nationals detained in Guantanamo Bay. He has also raised the matter with those responsible in the United States Administration, to express the Government’s profound concern … if the UK detainees are to be tried … and to make plain the Government’s opposition to the imposition of the death penalty.
In 2003, in a reply to a written question in the House of Lords, the UK Minister of State, Foreign and Commonwealth Office, wrote:
On 18 July the US announced that they would not commence any military commission proceedings against UK nationals, pending discussions between American and British legal experts. The Attorney-General visited Washington on 21–22 July for talks with the US Administration. He secured a number of assurances from the Administration, including that the US will not seek the death penalty against the two British detainees who have been designated as eligible for the commissions, and will be returning to the US shortly for further discussions.
The US announced on 18 July that they would not commence any military commission proceedings against UK nationals detained at Guantanamo Bay, pending discussions between American and British legal experts.
In 2004, in reply to a question concerning Israel’s policy of targeted killings, the UK Foreign Secretary stated: “What I said is what I and the British Government believe, which is that assassinations or killings of this kind are unjustified, they are not lawful, and they are counter-productive.”
In 2005, in a written answer to a question concerning, inter alia
, the use of “targeted assassinations” by the Israeli authorities, the UK Minister of State for the Middle East, Foreign and Commonwealth Office, stated: “Targeted killings are contrary to international law.”
The UK Government Strategy on the Protection of Civilians in Armed Conflict (2010) states: “IHL requires parties to a conflict to respect and protect civilians. … [C]ivilians must not be … subjected to acts of violence such as killing”.
In 2010, in its closing submissions to the public inquiry into the circumstances surrounding the death of Baha Mousa and the treatment of those detained with him by UK armed forces in Iraq in 2003, the UK Ministry of Defence stated regarding common Article 3 of the 1949 Geneva Conventions: “On its face this protection is restricted to armed conflicts not of an international character. However, it is understood to apply in all forms of armed conflict as part of customary international law to set out the irreducible minimum standard.”