Al-Saadoon judgment revives fundamental questions over the UK’s extra-territorial human rights obligations, the role of lawyers and the evolving nature of warfare

On 9 September 2016, the Court of Appeal delivered its judgment (see here) in the latest high profile case to deal with a number of serious allegations concerning the conduct of the British Armed Forces during the Iraq War. The case touched upon a number of contentious issues, but most importantly for this blog, the Court had to consider the reach of the United Kingdom’s international human rights obligations beyond British territory. Although the decision of the court slightly retreats from the far-reaching judgment of the High Court on this issue (see here), the case marks an interesting contribution nonetheless and is surely destined for further litigation. The judgment also raises a number of issues which have ramifications beyond the constraints of the particular case, most notably in relation to the role of human rights lawyers who have been heavily criticised by the Prime Minister in recent months, and the changing nature of warfare and counter-terrorist methods.

The case concerned numerous allegations of fatal shootings, ill-treatment, disappearances and complicity with the United States of America over allegations of torture. The key questions to come before the Court of Appeal focussed upon the now regularly confronted issue of the extra-territorial application of the European Convention on Human Rights (ECHR); the extent of the UK’s obligations under the ECHR to investigate allegations of torture and unlawful detention; and the applicability of the Convention Against Torture (CAT) in the English and Welsh legal system.

On the first issue, the Court of Appeal disagreed in part with the High Court, finding that the shooting of an individual who was not detained by the Armed Forces was not in itself sufficient to demonstrate control for the purposes of establishing jurisdiction, as Leggatt J had previously found. Although Leggatt J held that shooting someone represented the ultimate exercise of physical control over another human being’, the Court of Appeal held that it was for the European Court of Human Rights (ECtHR) to extend the principles espoused in the leading Banković and Al-Skeini cases, which require an element of physical power and control. For the Court of Appeal, killing someone who was not detained by the shooter clearly lacked the fundamental element of control. In light of the Al-Saadoon decisions in the British courts, a number of important fundamental issues persist.

Given the scale and frequency of British military interventions abroad in recent years, it is obvious that the domestic courts will have to regularly contend with serious allegations concerning the conduct of the British Armed Forces. This will require the domestic courts and the ECtHR to persistently grapple with the issue of extra-territoriality. As is well known, the ECtHR has responded to this issue in the numerous appeals arising out of the invasions of Afghanistan and Iraq in 2001 and 2003 respectively (see Al-Skeini, Al-Jedda, Jaloud, Al-Saadoon & Mufdhi). Moreover, the Iraq Historic Allegations Team (see here) will have its hands full for several years as it aims to conclude its investigation into allegations of abuse by 2019. 

However, lawyers acting on behalf of Iraqi civilians have faced much criticism for taking action against the British Armed Forces. In her closing speech at the recent Conservative Party conference, the Prime Minister, Theresa May, announced that in future conflicts the Government would not let ‘activist left-wing human rights lawyers harangue and harass the bravest of the brave’ in the British Army (see here). This followed an earlier and equally controversial policy announcement that the UK would derogate from certain human rights obligations in future conflicts (see here). Criticism of this announcement has been abundant as lawyers and academics have questioned how any such blanket derogation would satisfy the requirements for a derogation under Article 15 of the ECHR to be lawful, not least of all the principles of necessity and proportionality.

One of the leading law firms to challenge the Government in recent years and represent individuals who claim to have been mistreated during the Iraq War was Public Interest Lawyers, led by Phil Shiner. The firm was consistently lambasted by some politicians due to the frequency of allegedly vexatious allegations against British troops. Of course, whether a claim is vexatious or not should be a decision of a court and not a politician, but the issue of gathering sufficient evidence and deciding which claims should be advanced is a trickier question, especially if done so with taxpayer money. Nevertheless, the firm closed on 31 August 2016 after it lost legal aid funding amidst accusations of misconduct (see here).

A further issue raised once again in light of the Al-Saadoon judgment concerns the increasingly complex nature of contemporary warfare and counter-terrorism in which the United Kingdom participates. In particular, many of the key legal notions underpinning international humanitarian law and international human rights law have been grossly politicised in recent years and are subject to differing interpretations. Equally, these challenges will intensify given the particularly murky nature of British involvement in some conflicts, most notably in Yemen (see here and here). As atypical methods of warfare and counter-terrorism (i.e. through proxy or targeted killing) supersede traditional battlefield deployment and criminal justice processes, the courts will have to apply the principle of jurisdiction to the changing nature of conflict and counter-terrorism.

In light of these issues, the implications of these judgments are extremely concerning. If, as the Court of Appeal contended, an element of ‘physical power and control’ over the individual was indeed necessary to establish jurisdiction, then it would be impossible to establish jurisdiction when a State killed an individual by means of a drone strike. Equally, when one considers the nature of proxy warfare which inherently avoids the use of any ‘physical control’ over individuals, then establishing jurisdiction for the purposes of Article 1 of the ECHR becomes an impossible task.

In that regard, it is deeply troubling if States are able to avoid having to consider their obligations under international human rights law if they deliberately conduct themselves in a way which does not involve their personnel exercising territorial control, or physical control over individuals. Such a legal position only serves to incentivise proxy warfare and targeted killings. Equally, as David Hart has argued, ‘it may be said that a sniper picking off a civilian at 1km would be non-justiciable, whereas soldiers cornering a group of civilians up an alley-way before swiftly despatching them would arguably give rise to a justiciable killing’ (see here). Indeed, the increasingly complex and evolving nature of warfare and counter-terrorism may necessitate the involvement of ‘activist left-wing human rights lawyers’ more than ever if the law is in a state of uncertainty and needs clarification.

Even so, the Al-Saadoon judgment further reinforces the need for the British Government to implement the recommendations made in the Report of the Baha Mousa Inquiry in a transparent manner in order to learn from the mistakes of the past. The public must have confidence that allegations of unlawful killings and abuse are taken seriously and that steps are actively taken to prevent them re-occurring. Taking aim at human rights lawyers at every opportunity does not serve the interests of democracy or, more importantly, the rule of law, which requires that the Government is scrutinised and held to account if necessary. Additionally, the British Government must take heed of the High Court’s recommendation in Ali Zaka Mousa, and commit to establishing an ‘inquisitorial inquiry derived from the model used by coroners’ to investigate allegations of abuse by Iraqi civilians by UK armed forces. According to the High Court, this method inquiry would be better placed to ‘assess the systemic issues and to take account of lessons learnt is discharged in a way that provides greater transparency and public accountability’.

Although the Court of Appeal in Al-Saadoon overturned arguably the most interesting and certainly the most far-reaching aspect of the High Court judgment, the suggestion that any use of lethal force by the Armed Forces (regardless of physical control) invokes jurisdiction should be seriously considered again in the future. This is particularly vital in light of the changing nature of warfare and the use of targeted killing. If the Al-Saadoon appeal progresses to the Supreme Court and the European Court of Human Rights, as commentators believe, then the higher courts will have to reconcile the judgments.

The writer, Ben Stanford, is an academic based in London, with a keen interest in International Human Rights and International Criminal Law. Previously, he has completed a Masters in International Criminal Law at the University of Amsterdam.  He is currently pursuing a PhD in Terrorism and International Human Rights.

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