Al-Saadoon & Others v Secretary of State for Defence

JurisdictionEngland & Wales
JudgeMr Justice Leggatt
Judgment Date17 March 2015
Neutral Citation[2015] EWHC 715 (Admin)
Docket NumberCase Nos: CO/5608/2008; CO/8695/2009; CO/6345/2008; CO/953/2009; CO/9719/2009; CO/12803/2009; CO/1684/2010; CO/2631/2010, C8620/2010
CourtQueen's Bench Division (Administrative Court)
Date17 March 2015

[2015] EWHC 715 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Leggatt

Case Nos: CO/5608/2008; CO/8695/2009; CO/6345/2008;

CO/9925/2008; CO/11858/2009; CO/11442/2008;

CO/953/2009; CO/9719/2009; CO/12803/2009;

CO/1684/2010; CO/2631/2010, C8620/2010

Between:
Al-Saadoon & Others
Claimant
and
Secretary of State for Defence
Defendant

Michael Fordham QC, Danny FriedmanQC, Dan SquiresandJason Pobjoy (instructed by Public Interest Lawyers) for the Claimants

James Eadie QC, Karen SteynQC andKate Grange (instructed by Treasury Solicitors) for the Defendants

Phillippa Kaufmann QC and Alison Pickup (instructed by Leigh Day) for the Leigh Day Claimants

Hearing dates: 20–23 October 2014

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

Section

Para No.

I. INTRODUCTION

1

The issues in brief

6

II. THE BACKGROUND

11

Phases of British military involvement in Iraq

11

The invasion period

12

The occupation period

13

The post-occupation period

14

The duty of the state to investigate deaths and ill-treatment

16

Article 2

16

Article 3

19

Judicial review claims

21

IHAT investigations

25

The Ali Zaki Mousa proceedings

27

III. ARTICLE 1 – JURISDICTION

32

Article 1

34

Banković v Belgium

36

Cases after Banković

38

The Al-Skeini case

41

Smith v Ministry of Defence

52

The status of Banković after Al-Skeini

56

Subsequent decisions of the European Court

62

The application of the Al-Skeini principles

65

Effective control over an area

66

Exercise of public powers

72

The occupation period

76

The invasion period

77

PIL 6: Atheer Kareem Khalaf

80

The post-occupation period

84

Exercise of physical power and control

89

Non-detention cases

90

Position of the Secretary of State

93

The position in principle

95

The actual decision in Al-Skeini

99

Reliance on Bankovic

101

Jurisdiction and breach

108

Going no further than the European Court has gone

112

Application to the test cases

117

Other cases

119

PIL 3 and PIL 7: deaths in a British hospital

120

PIL 176: killing during a US-led operation

123

PIL 45

128

Rahmatullah and Ali

131

IV. ARTICLE 3 – HANDOVER

137

The parties' positions

140

The ECHR case law

141

A threshold issue: the Nasseri case

149

The position in principle

159

Application to the non-refoulement obligation

163

The position on authority

169

The El-Masri case

174

Dzhurayev v Russia

180

Conclusion on issue (2)

186

Issue (4): when does a duty to investigate arise in handover cases?

187

Perpetrating mistreatment

188

Complicity in mistreatment

189

Content of any investigative obligation

199

Test cases

200

V. ARTICLE 5 – DETENTION

203

Issue (5): the claimants' primary case

204

Enforced disappearance

208

International law

209

Convention case law

216

Other cases

226

The claimants' alternative case

231

The El-Masri case

233

Issue (7): discussion

240

Application to the test cases

243

Issue (7A): the effect of IHL

251

VI. UNCAT

256

Relevant provisions of UNCAT

259

Territorial scope of UNCAT

263

Status of treaties in domestic law

267

Customary International Law

270

Scope of article 12 of UNCAT

274

Reference to UNCAT in interpreting article 3

276

VII. ARGUABLE BREACH

281

Military road traffic cases: PIL 45

287

VIII. CONCLUSIONS

294

Article 1 – jurisdiction

294

Article 3 – handover

294

Article 5 – detention

294

UNCAT and CIL

294

Arguable breach of articles 2/3

294

Mr Justice Leggatt

I. INTRODUCTION

1

One of the legacies of the Iraq war is litigation. Many claims have been brought in the courts of this country arising out of the British military involvement in Iraq between 2003 and 2009. Although it is now some six years since British forces completed their withdrawal from Iraq, the litigation is not abating. Most of the claims involve allegations of ill-treatment, unlawful detention and, in some cases, unlawful killing of Iraqi civilians by British soldiers. These claims fall into two groups.

2

The first group consists of claims for judicial review in which the claimants are seeking orders from the court to require the Secretary of State for Defence to investigate alleged human rights violations. I will refer to these claims as the "public law claims". At the beginning of 2014 there were 190 public law claims, but since then another 875 claims have been added. I am told by Public Interest Lawyers, who represent all the claimants in the main proceedings brought by Al-Saadoon and others, that they expect at least 165 more claims to be added to the register of claims before the end of March 2015, bringing the total number of claims to at least 1,230. Separate judicial review proceedings have been brought by two individuals, Yunus Rahmatullah and Amanatullah Ali, who are represented by Leigh Day.

3

The second group of claims consists of claims for compensation brought against the Ministry of Defence. To date, more than 1,000 such claims have been issued: some 294 of these claims have been settled but the rest are still pending. I will refer to these claims as the "private law claims".

4

This judgment follows a trial of eleven preliminary issues raised by the public law claims. The directions for this trial were agreed between the parties to the Al-Saadoon proceedings and ordered by the court with the aim of clarifying the scope of the duty of the United Kingdom to investigate allegations of wrongdoing by British forces in Iraq. The issues have been argued by reference to the assumed facts of certain cases which the parties have selected as test cases. Because some of the issues are also relevant to the private law claims and to the claims of Mr Rahmatullah and Mr Ali, the claimants represented by Leigh Day also took part in the hearing.

5

The preliminary issues have required consideration of a large body of law. The bundles of authorities prepared for the hearing contained over 300 cases and other legal materials, many of which were cited in the written arguments. I am grateful to all the parties for their detailed written submissions. Above all, the oral argument was conducted with conspicuous skill and helped to distil the key points in issue.

The issues in brief

6

The source of the duty on the state to investigate allegations of wrongdoing on which the public law claimants rely is the European Convention on Human Rights, incorporated into English law by the Human Rights Act 1998. Whether, and if so to what extent, the Convention applies to the activities of British armed forces in Iraq has itself been the subject of extensive litigation. It is now clearly established, however, and is accepted by the Secretary of State, that anyone who was taken into the custody of British forces in Iraq had certain rights under the Convention which the United Kingdom was bound to respect: in particular, the right to life under article 2, the right under article 3 not to be tortured or subjected to inhuman or degrading treatment and the right to liberty under article 5. It is also clearly established that where a person who is within the jurisdiction of a Convention state is killed by agents of the state or dies in state custody or makes a credible allegation of torture or other serious ill treatment by state agents, the state has a duty to carry out an investigation. That investigation must be independent and it must be effective.

7

There are, however, two major areas of controversy about the scope of the duty to investigate which are the focus of the present preliminary issues. The first is whether, and if so when, the Convention applied to the use of force against Iraqi civilians who were not in the custody of British forces. In particular, the Secretary of State does not accept that (save during the period when the UK was an occupying power) individuals who were killed during security operations carried out by British forces in Iraq were "within [the UK's] jurisdiction" for the purpose of article 1 of the Convention such that the UK was bound to secure their right to life under article 2. If this is correct, it follows that the UK has no duty under the Convention to investigate the deaths of such individuals. The claimants dispute this and argue that the UK's jurisdiction under article 1 is of wider scope. The first preliminary issue is aimed at resolving this dispute.

8

The second major area of controversy is the extent to which, where individuals were within the jurisdiction of the UK, there is a duty to investigate alleged violations of their rights. As mentioned, it is clear that such a duty arises in cases of suspected unlawful killing or serious ill-treatment. Two main points, however, are in dispute. One is whether, and if so when, the duty to investigate allegations of a violation of article 3 applies in cases where the nature of the allegation is not that the claimant was tortured or mistreated by British forces but that he was handed over to United States or Iraqi authorities in...

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