Human Rights Act: Extra-Territorial Application

AuthorKerem Altiparmak
Date01 February 2008
Published date01 February 2008
DOI10.1350/jcla.2008.72.1.471
Subject MatterHouse of Lords
House of Lords
Human Rights Act: Extra-territorial Application
Al-Skeini and Others vSecretary of State for Defence [2007] UKHL 26
These appeals arise out of the deaths of six Iraqi civilians caused by the
actions of British soldiers in southern Iraq, when the UK was recognised
as an occupying power. Five of the deceased were shot in separate armed
incidents involving British troops. The sixth died following gross ill-
treatment whilst in custody in a UK military detention facility (‘the
Mousa case’). Except in one case, in which the appellant claimed that the
victim was shot unintentionally during an exchange of f‌ire between a
British patrol and a number of gunmen, the Secretary of State for
Defence accepts that the relatives were killed by members of the British
forces. In each case, a relative of the deceased sought an independent
inquiry into the circumstances of the respective killings. Only in respect
of the Mousa case did the courts below accept the claimants’ demand.
Two questions were put before the House of Lords:
(a) whether the Human Rights Act 1998 (‘HRA’) applies to acts or
omissions of state agencies of the UK outside the territorial
boundaries of the UK;
(b) if so, whether the deceased persons were within the jurisdiction
of the UK, within the meaning of Article 1 of the European
Convention on Human Rights (‘ECHR’), when they were killed
in Iraq.
H
ELD
,
DISMISSING THE APPEALS OF EACH OF THE FIRST FIVE APPELLANTS
AND DISMISSING THE CROSS
-
APPEAL OF THE RESPONDENT
, remitting the
sixth appellant’s case, which concerned a death in British custody, to the
Divisional Court to be decided in the light of up-to-date evidence.
In reaching this conclusion, the House of Lords decided that the
territorial scope of the HRA is not conf‌ined to the boundaries of the UK
and should be def‌ined with reference to the concept of jurisdiction as it
is understood under Article 1 of the ECHR. The House of Lords also
conf‌irmed the principle that had been stated in R (on the application of
Ullah) vSpecial Adjudicator [2004] 2 AC 323 at [20] that ‘the duty of
national courts is to keep pace with the Strasbourg jurisprudence as it
evolves over time: no more, but certainly no less’. Lord Brown’s view in
the present case was ‘no less, but certainly no more’ (at [106]). In line
with this approach, as their Lordships found the jurisprudence of the
European Court, especially the Bankovic case (Bankovic vBelgium et al
(2001) 11 BHRC 435), clear on the meaning of jurisdiction, the House of
Lords dismissed the appeals of the f‌irst f‌ive appellants. Conversely, it was
held that the Mousa case was within the jurisdiction of the United
Kingdom.
27The Journal of Criminal Law (2008) 72 JCL 27–33
doi:1350/jcla.2008.72.1.471

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