Case Watch: Enforcing Human Rights Across Borders

In our “Case Watch” reports, lawyers at the Open Society Justice Initiative provide quick-hit analysis of  notable court decisions and cases that relate to their work to advance human rights law around the world.

Britain’s role in the military invasion and occupation of Iraq has been the subject of two landmark judgments recently issued by the Grand Chamber of the European Court of Human Rights (ECHR). In both cases, the court confirmed that the UK’s human rights obligations applied to its military conduct in Iraq, finding that Britain’s treatment of Iraqi civilians violated several provisions of the European Convention on Human Rights. The rulings represent a milestone in the extraterritorial application of human rights law (view an ECHR factsheet [pdf] on extraterritoriality cases), and are expected to have an impact far beyond Iraq.

In Al-Skeini and Others v. the United Kingdom, the court addressed the deaths of six Iraqi civilians in Basra in 2003. Four of the victims were killed during military operations involving British soldiers, the fifth was beaten by British soldiers and forced into a river, where he drowned, while the sixth victim died in detention at a UK army base. In 2007, the UK House of Lords—the country’s highest appellate court at the time—held that neither the European Convention nor the UK’s Human Rights Act of 1998 applied to the actions of British troops outside of their military base, thereby rejecting claims made by five of the victims. The victims’ families then complained to the ECHR in Strasbourg that the  UK  had refused to respect the right to life and failed to conduct an effective investigation into the circumstances of the killings.

In contrast to the House of Lords, the ECHR unanimously held that the UK’s human rights obligations under the Convention applied not only in its military bases, but also throughout southeast Iraq. According to the court: “the UK, through its soldiers engaged in security operations in Basra 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 UK for the purposes of Article 1 of the convention.” Although the ruling pointed out that Britain’s jurisdiction arose out of “exceptional circumstances”—in that the UK, as an occupying force, had assumed responsibility for security throughout southeast Iraq at the time—it confirmed that states must uphold their human rights obligations under the convention when they exercise the requisite authority, whether on domestic soil or elsewhere.

Having found jurisdiction, the court was quick to hold the UK accountable and concluded that Britain failed to conduct an independent and effective investigation into the victims’ deaths, thus breaching Article 2 of the convention (right to life). Recognizing that states may find it difficult to conduct investigations amidst unstable security conditions, the court nevertheless emphasized the obligation to take “all reasonable steps . . . to ensure that an effective, independent investigation is conducted into alleged breaches of the right to life.”

The second judgment, Al-Jedda v. United Kingdom, likewise held that by detaining an Iraqi citizen from 2004 to 2007 at a British military facility in Basra, the UK violated the victim’s right to liberty and security under Article 5 of the convention. Al-Jedda was arrested in September 2004 by American troops, Iraqi national guards, and British soldiers, on suspicion of being a member of a group involved in weapons smuggling and bomb attacks in Iraq. Authorities placed Al-Jedda in a Basra detention center run by British troops, and repeatedly extended his detention without charge or trial (also known as “internment”). He was ultimately released in December 2007, more than three years after his arrest, without any criminal charges brought against him.

In 2007, the UK House of Lords held that Al-Jedda’s internment was lawful because British forces were authorized to act under United Nations Security Council Resolution 1546 and successive UN resolutions that allowed the use of  internment “where necessary for imperative reasons of security in Iraq.” According to the House of Lords, binding Security Council decisions superseded other treaty commitments, including the European Convention on Human Rights.

Once again, the court rejected  the UK government’s arguments and concluded that Al-Jedda’s detention was attributable to, and within the jurisdiction of, the UK during the time in question. The court rejected Britain’s argument that Mr. Al-Jedda’s detention fell under UN authority and further noted that nothing in the UN mandate conflicted with the victim’s guarantee to human rights under the convention. In fact, the court made it a point to emphasize that when states interpret UN 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 both cases, the court awarded significant monetary awards to the prevailing parties. These  judgments confirm that a government’s human rights obligations can extend across borders when states exercise the requisite “authority and control” over foreign nationals. This outcome represents a victory not only for the victims and their families, but also for advocates of the universal application of human rights, at home and abroad, during times of peace and conflict. In the words of Giovanni Bonello, an ECHR judge: “Those who export war ought to see to the parallel export of guarantees against the atrocities of war.”