INTERIGHTS Bulletin

INTERIGHTS Bulletin
Volume 16 Number 4 2011
177
International
Law Reports
the unit involved. In either case, the commanding officer
decided whether to refer the cases to the prosecuting
authority.
On 26 March 2004, the UK Secretary of State for
Defence decided not to conduct an independent
investigation into the deaths of the relatives of the six
applicants, not to accept liability for their deaths and not
to compensate the families. The applicants sought
judicial review of the decision.
The Divisional Court reviewed all of the applicants’
cases, except for the fifth applicant whose case was
stayed pending the outcome of the others. The Divisional
Court found that it had no jurisdiction over the claims of
the first four applicants under Article 1 of the ECHR
because the narrow exceptions to Article 1’s territorial
jurisdiction did not apply. However, the Divisional Court
did have jurisdiction over the claim of the sixth applicant
because a death occurring in a British military prison
abroad was covered by a narrow jurisdictional exception
for locations with ‘a discrete quasi-territorial quality,’
much like foreign embassies. In the case of the sixth
applicant, the Divisional Court found that the UK had
breached its investigative duty under Articles 2 and 3
because the results of the investigation were ‘unknown
and inconclusive’ ten months after the killing.
The first four applicants appealed the jurisdictional
ruling and the UK Secretary of State for Defence crossappealed
the jurisdictional finding regarding the sixth
applicant. The Court of Appeal dismissed the appeals
and cross-appeal. The Court of Appeal found that none of
the applicants’ relatives were under the control and
authority of the UK except for the sixth applicant’s son,
whose claim was within the scope of the Human Rights
Act 1998. The sixth applicant’s claim was remanded to
the Divisional Court for reconsideration after further
developments in the investigation.
Following an unsuccessful appeal to the House of Lords,
the applicants sought relief from the ECtHR. The
applicants argued that the UK had jurisdiction over the
applicants’ deceased relatives under Article 1 because the
UK was in effective control of South East Iraq and had
responsibility for public order in that region. The UK
argued that only the sixth applicant’s relative, who died
while in British military custody, fell under its
jurisdiction. The UK claimed that, with respect to the
relatives of the first to fifth applicants, the acts in
question took place in Iraq, which is outside of the UK’s
jurisdiction under Article 1, and that, in any event, the
UK did not have effective control over any part of Iraq
during the relevant period.
The applicants further complained to the ECtHR that the
UK failed to fulfill its duty to effectively investigate the
deaths of the first to fifth applicants’ relatives under
Article 2, which prohibits arbitrary killing by state actors
and sought a Government investigation into their
relatives’ deaths and compensation for their distress. The
sixth applicant and the UK agreed that the sixth applicant
was no longer a victim of an Article 2 violation given the
public inquiry underway at that time. The UK argued
that any implied procedural duty to investigate the
deaths under Article 2 should not place a
disproportionate burden on any state and should take
into account the relevant circumstances. The UK
claimed that it did not have full control over the relevant
Iraqi territory and that its personnel were operating
under very difficult security conditions. The UK agreed,
however, that the investigations into the deaths of the
relatives of the first, second and third applicants were not
sufficiently independent of the military chain of
command under Article 2 because the investigations
were conducted by the commanding officers of the
soldiers allegedly responsible for the killings. However,
the UK maintained that the investigations into the
deaths of the fourth, fifth and sixth applicants’ relatives
complied with Article 2. The UK also argued that the
fifth and sixth applicants no longer had victim status.
A joint third-party intervention by the Bar Human Rights
Committee, the European Human Rights Advocacy
Centre, Human Rights Watch, the International
Federation for Human Rights, INTERIGHTS, the Law
Society and Liberty argued that a narrow interpretation
of territorial jurisdiction for a state under Article 1 would
lead to differing standards of accountability based on
whether a state’s deprivation of human rights occurred at
home or abroad, an outcome that was not intended by
the parties adopting the ECHR in the aftermath of World
War II and would be out of step with the practice of other
human rights bodies such as the ICJ, the HRC, the
IACHR and the ACHPR. To do otherwise would allow a
state to commit violations in a foreign land that it would
not permit on its own territory. The interveners argued
further that when a state continues to control the
conduct of its agents abroad, as in a foreign military