In March, the High Court of Justice of England and Wales found that the United Kingdom’s obligations under the European Convention on Human Rights (ECHR) can be activated extraterritorially simply through the use of physical force against an individual by State agents. The judgment in Al-Saadoon and Others v. Secretary of State for Defence represents a significant expansion in what it means to be within the jurisdiction of a State party such that the ECHR has effect. However, the impact should not be overstated. Most importantly, it may not survive appeal domestically and even if it does, the European Court of Human Rights (ECtHR) may not follow the UK High Court’s reasoning.
In any event, the UK Ministry of Defence position is that the ruling will not affect the conduct of current operations. Nevertheless, the judgment does reflect a general trend according to which the scope of applicability of the ECHR has expanded. Beyond the strict confines of the ECHR, the judgment also reflects arguments that may be made to expand the reach of other human rights instruments, including the International Covenant on Civil and Political Rights (ICCPR), to which a much broader range of countries (including the United States) are party. In a new article in International Law Studies, I place Al-Saadoon in context and examine the consequences of its controversial conclusions. Below, I will use the case to demonstrate the expanding applicability of International Human Rights Law (IHRL) during armed conflict and set out some of the problems this causes.
The decision in Al-Saadoon
Al-Saadoon concerned issues affecting over two thousand cases arising from UK military activities in Iraq following the 2003 invasion. Amongst these issues were fundamental questions regarding the applicability of the ECHR, which is governed by Article 1 of the Convention:
The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.
Applicability therefore turns on what it means to be within the “jurisdiction” of a State, a question that has been the source of much controversy. Between 2001 and 2011, the debate was dominated by the case of Banković, in which the ECtHR found that the ECHR would apply extraterritorially only where a State exercises public powers (i.e., powers normally exercised by a government) as a result of its effective control over a territory and its inhabitants.
The Banković decision was criticized on several fronts, not least because it might incentivize States to act outside of their own territory in order to avoid their obligations under the ECHR. The ECtHR appeared to have understood this dilemma in a series of subsequent cases in which it seemed to depart from Banković without acknowledging as much. A degree of clarity was then provided in 2011 by the case of Al-Skeini, in which the ECtHR took the opportunity to restate the relevant law. It reaffirmed that jurisdiction is “primarily territorial,” but also recognized the possibility of personal jurisdiction, most significantly where “the State, through its agents, exercises control and authority over an individual.” However, while the ECtHR now appears to regard the restatement in Al-Skeini to be definitive, it still has not acknowledged its departure from Banković.
The most controversial aspect of the Al-Saadoon judgment (as it relates to the question of jurisdiction) is its application of the Al-Skeini approach to personal jurisdiction. While it is uncontroversial that jurisdiction can be identified on this basis in the case of a detainee, it is unclear if it can be extended to situations where physical power and control is exercised over a non-detainee through the use of physical force alone. The High Court, despite a range of arguments presented by the government to the contrary, found that it can.
As a matter of principle, the Court found “it impossible to say that shooting someone dead does not involve the exercise of physical power and control over that person.” It also rejected the argument, arising in part from confusing language in the Al-Skeini judgment, that it was only in the context of the exercise of public powers that personal jurisdiction could be established from the use of force alone. It indicated that imposing such a limitation was wrong as a matter of principle and was not the intention of the ECtHR in Al-Skeini.
Lingering doubt as to the status of Banković allowed the government to argue that recognizing jurisdiction on the basis of the use of force alone would be contrary to the decision on the facts in Banković. However, while the Court in Al-Saadoon lamented the ECtHR’s “lack of transparency,” it found that argument unsustainable in the light of Al-Skeini. The Court stressed that this did not mean that jurisdiction would be extended over anyone adversely affected by any act attributable to a State party. It is only in limited circumstances — the use of coercive force — that the criteria for establishing jurisdiction on the basis of authority and control over an individual would be met. The “essential principle” derived by the Court is that “whenever and wherever a [State party] purports to exercise legal authority or uses physical force, it must do so in a way that does not violate [ECHR] rights.”
The Court’s arguments are cogent and persuasive. Indeed, its conclusion is arguably just the logical consequence of the approach set out in Al-Skeini. However, on appeal, superior domestic courts may take a more conservative view and decide that such a clear departure from Banković should be left to the ECtHR. If this case, or another with similar facts, winds up being considered by the ECtHR, the outcome cannot be predicted on the basis of the judgment in Al-Saadoon, whatever the quality of the legal analysis. As has been shown, the ECtHR has not been consistent in the past in tackling the requirement for jurisdiction, and it is unlikely that it will be entirely consistent in the future. However, that does not mean that the ECtHR will never find a jurisdictional link to have been established from the use of force alone. The judgment in Al-Saadoon demonstrates that Al-Skeini is certainly open to that interpretation.
Impact of the judgment
Were the approach in Al-Saadoon to be followed, the obvious consequence is that far more of the activities of armed forces will be subject to the ECHR. However, precisely what that means remains unclear in light of the continuing debate as to the relationship between IHRL and international humanitarian law (IHL). IHRL has authoritatively been held to continue to apply alongside IHL, a position that, as discussed by Beth van Schaack, is now shared by the United States. IHL is often described as the lex specialis that provides content to less detailed norms of IHRL. However, it would be an oversimplification to suggest that acts that are lawful under IHL will necessarily be lawful under IHRL. The problem arises, in part, from the multiple meanings of the term lex specialis. While it is used with little controversy to mean that a specific rule of one body can provide normative content to a more general rule of the other, it is also used to describe the contention whereby a norm of IHL can displace a conflicting, or more restrictive, norm of IHRL. This latter position is far more controversial and arguably unsustainable as a matter of law. As Marko Milanovic notes, what may exist is, in fact, an irresolvable conflict of norms.
This problem is not presented in the judgment in Al-Saadoon. For parties to the ECHR, at least, the same issues already arise where force is used in the exercise of public powers, or where a State has effective control of an area. However, the extension of the personal model of jurisdiction to any use of force against non-detainees would obviously expand the scope of the problem to include the use of force across the full spectrum of military operations.
The solution proposed by the Court in Al-Saadoon referred to the recent case of Hassan v. United Kingdom, in which the ECtHR read into Article 5 (the right to liberty), an additional exception to allow for security detention under IHL in the course of an international armed conflict. The Court in Al-Saadoon reasoned that the same approach would apply to Article 2 — it would simply be interpreted so as to permit killing that is lawful under IHL. However, while the ECtHR could plausibly adopt such an approach, in the light of the textual challenges involved, it is by no means a foregone conclusion that it would feel able or willing to do so.
A better solution may be to extend the situations in which States may make derogations to all those situations where they legitimately engage in armed conflict, either at home or overseas. This, it has been argued (by the same judge who decided Al-Saadoon), would reflect the expansion in the circumstances where the ECHR has been found to be applicable. Such an approach would have the advantage of providing a clear basis for the application of IHL, alone, as the body of law governing the deprivation of life during armed conflict. States would, however, have to trust that the basis on which they make their derogations would survive subsequent scrutiny.
In conclusion, the High Court’s judgment in Al-Saadoon is unlikely to become a leading authority on the extraterritorial application of the ECHR. The ECtHR may not follow its approach and domestically it may be reversed on appeal. However it is important nonetheless, particularly for the precision and clarity of its reasoning. At the very least it reflects a trend according to which the applicability of IHRL instruments during armed conflict has tended to grow. Arguments similar to those made in Al-Saadoon in relation to the ECHR could be applied to other instruments, such as the ICCPR. While that would be highly controversial, it seems probable that more and more of the activities of armed forces are likely to be argued to be subject to IHRL and will, as a result, be judged according to the standards of that body of law.
It is essential therefore to understand how those standards apply in the context of armed conflict. For the ECHR it may be that, as the Court in Al-Saadoon suggests, it will be as simple as interpreting the relevant provisions to give effect to the principles of IHL. However, the relationship between the two bodies of law does not seem to be so simple, and it cannot be assumed, therefore, that such a comfortable accommodation can necessarily be reached.