Al-Saadoon v Defence Secretary

JurisdictionEngland & Wales
JudgeLeggatt J,Arden,Tomlinson,Lloyd Jones LJJ
Judgment Date09 September 2016
CourtCourt of Appeal (Civil Division)
Date09 September 2016

England, High Court, Queen's Bench Division (Administrative Court).

Court of Appeal

(Leggatt J)

(Arden, Tomlinson and Lloyd Jones LJJ)

Al-Saadoon and Others
and
Secretary of State for Defence 1
Rahmatullah and Another
and
Secretary of State for Defence and Another 2

Treaties — Human rights treaties — Application — Scope — European Convention on Human Rights, 1950 — Article 1 — Duty of parties to secure rights and freedoms under European Convention to persons within their jurisdiction — Extent of jurisdiction — Claimants alleging ill-treatment and unlawful detention during British military involvement in Iraq between 2003 and 2009 — Whether Article 1 of European Convention applicable in test cases — Strasbourg jurisprudence — Bankovic — Concept of jurisdiction primarily territorial — Extraterritorial jurisdiction in exceptional cases only — State agent authority and control — Effective control over an area — Convention legal space (espace juridique) — Al-Skeini — Widening of exceptional categories — Division and tailoring of Convention rights — Exceptional category of State agent authority and control applicable in present case — Exercise of public powers — Whether United Kingdom exercising authority and control by virtue of exercising public powers normally exercised by Iraqi Government — Whether conditions for occupation met — Case-by-case factual analysis — Exercise of physical power and control of individuals — Scope — Whether requiring greater degree of power and control than that represented by use of lethal or potentially lethal force alone — Whether those claimants transferred into custody of United States within jurisdiction of United Kingdom for purpose of Article 1 of European Convention — Whether and to what extent European Convention applying to British armed forces in Iraq — Whether United Kingdom having duty to investigate alleged human rights violations — Whether United Kingdom having jurisdiction for purpose of Article 1 of European Convention

Relationship ofinternational law and municipal law — Treaties — European Convention on Human Rights, 1950 — Article 1 — Scope of application — United Kingdom courts to construe reach of Article 1 in accordance with Strasbourg jurisprudence — Identification of underlying principles of Strasbourg jurisprudence — Whether United Kingdom having duty to investigate alleged human rights violations — Whether United Kingdom having jurisdiction for purpose of Article 1

Human rights — Treaties — European Convention on Human Rights, 1950 — Article 3 — Prohibition of torture and inhuman or degrading treatment — Investigative obligations — Whether and in what circumstances investigative obligation arising in Soering-type cases — Whether adjectival duty on Contracting State to investigate allegations of breach of Soering duty after the event — Complaint that claimants suffering serious ill-treatment after having been handed over into United States custody — Whether requiring investigation under Article 3 — Whether factual basis for arguable claim that British forces complicit in ill-treatment — Extent to which investigative obligation arising under Article 3 in respect of handover cases

Human rights — Treaties — European Convention on Human Rights, 1950 — Article 5 — Right to liberty — Investigative obligations — Arbitrary detention — Whether investigative obligation arising in all cases of detention arguably in violation of Article 5Article 5 requiring Contracting States' authorities to investigate an arguable claim of enforced disappearance — Whether duty extending to detention without judicial scrutiny or control, even if detention not secret or unacknowledged — Effect of international humanitarian law on Article 5 — Whether Article 5 modi fied or displaced by international humanitarian law during international armed conflict — Extent to which investigative obligation arising in respect of cases within Article 5

Treaties — Interpretation — European Convention on Human Rights, 1950, Article 5 — Extent of obligations under Article 5Vienna Convention on the Law of Treaties, 1969, Article 31(3)(c) — Applicable rules of international law — 1992 UN Declaration on the Protection of All Persons from Enforced Disappearance — Council of Europe Resolution 1463 of 3 October 2005 — International Convention for the Protection of All Persons from Enforced Disappearance, 2006 — Strasbourg jurisprudence — Requirement under Article 5 that Contracting States' authorities investigate arguable claim of enforced disappearance — Whether duty to extend to detention without judicial scrutiny or control, even if detention not secret or unacknowledged

Treaties — Application — United Nations Convention against Torture, 1984 (“UNCAT”) — Obligations of United Kingdom — Whether UNCAT provisions giving rise to domestically enforceable legal rights — As a treaty — On basis of customary international law — European Convention on Human Rights to be interpreted in harmony with rules of international law of which it forms part — Whether broader investigative duty imposed by Article 12 of UNCAT — Consideration of United Kingdom's compliance with obligations under Articles 10 and 11 of UNCAT — Whether appropriate in context of investigating circumstances where duty to investigate allegation of torture or serious mistreatment — Whether UNCAT having any impact on investigative duties under Articles 2 and 3 of European Convention

Relationship of international law and municipal law — Treaties — Application —United Nations Convention against Torture, 1984 — Whether UNCAT provisions giving rise to domestically enforceable legal rights — Whether implemented into United Kingdom law — United Kingdom only implementing Article 4 of UNCAT in Section 134 of Criminal Justice Act — Whether principle of legality applicable — Whether rights in question part of domestic law — Human rights protections — Implementation of European Convention on Human Rights, 1950 — Human Rights Act 1998

War and armed conflict — British military involvement in Iraq between 2003 and 2009 — Invasion — Occupation — Post-occupation — Alleged human rights violations against Iraqi civilians by British soldiers in Iraq — European Convention on Human Rights, 1950 — Application — International humanitarian law — Whether displacing or modifying European Convention — Whether both applying to detention issues — The law of England

Summary:3The facts:—The appellants were Iraqi civilians who, with many other claimants, alleged that they had been ill-treated and unlawfully detained during the period of British military involvement in Iraq between 2003 and 2009.4 The appellants maintained that the respondent Secretary of State for Defence (“the Secretary of State”) had a duty to investigate these alleged human rights violations under the European Convention on Human Rights, 1950 (“the European Convention”), which had been incorporated into English law by the Human Rights Act 1998, and sought orders requiring him to do this. Mr Rahmatullah and Mr Ali, who alleged ill-treatment by United States forces following their transfer by British forces, contended that they were also within the jurisdiction of the United Kingdom.5

On 12 February 2014, Leggatt J ordered that preliminary issues6 be tried in order to clarify the scope of the United Kingdom's duty to investigate allegations of wrongdoing by British forces in Iraq. Those issues were argued by reference to the assumed facts of certain cases which the parties had selected as test cases. It had already been established that those in the custody of British forces in Iraq had rights under the European Convention which the United Kingdom had to respect, in particular the right to life under Article 2,7 the right not to be tortured or subjected to inhuman or degrading treatment

under Article 38 and the right to liberty under Article 5.9 It had also been established that when a person within the jurisdiction of a Convention State was killed by agents of the State, died in custody, or made a credible allegation of torture or other serious ill-treatment by State agents, that State had a duty to carry out an independent and effective investigation.

One preliminary issue concerned whether, and if so when, the European Convention applied to the use of force against Iraqi civilians who were not in the custody of British forces. The Secretary of State argued that, except during the period when the United Kingdom was an occupying power, persons killed during security operations carried out by British forces in Iraq were not within the United Kingdom's jurisdiction for the purpose of Article 1 of the European Convention10 such that the United Kingdom was bound to secure their right to life under Article 2; consequently there was no duty to investigate their deaths. The claimants claimed that the United Kingdom's jurisdiction under Article 1 had a wider scope. Their claims were founded on the principle of State agent authority and control over individuals; they relied both on the exercise of public powers by the United Kingdom and on the exercise of physical power and control.

Another issue concerned the extent to which, where individuals were within the United Kingdom's jurisdiction, there was a duty to investigate alleged violations of their rights. While a duty arose in cases of suspected unlawful killing or serious ill-treatment, it was disputed whether, and if so when, the duty to investigate allegations of Article 3 violations applied in cases where the claimant had been handed over by British forces to United States or Iraqi authorities when there was allegedly a real risk that they would subject the claimant to torture or mistreatment. The Secretary of State argued that the United Kingdom's investigative duty did not extend to such handover cases while the claimants maintained that it did. Also disputed was whether, and if so when, there was a...

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