Application of Human Rights Law to Military Actions Abroad: A Recent UK Judgment

Last month, the English High Court issued a judgment in Kontic v. Ministry of Defence, a case that dealt with whether and when the European Convention of Human Rights (ECHR) applies to UK forces operating in foreign countries. That is obviously an important issue not only for the UK directly, but also for coalitions and allies that fight alongside or depend on the British military.

The Claimants who brought suit were widows of Serbian men abducted or murdered in Kosovo in June-July 1999 after the deployment there of NATO’s Kosovo Force (KFOR). The women claimed that British forces had failed to protect their family members and had failed to properly investigate the killings. The deployment of KFOR was authorized by UN Security Council Resolution 1244 and included a British contingent.

The judge rejected the claims and found for the Ministry of Defence on a range of preliminary matters, including the following three key issues:

Attribution

The judge applied the reasoning and outcome of a Grand Chamber decision of the European Court of Human Rights—the case of Behrami & Saramati v France and others—to conclude that the alleged acts and omissions of the British forces were attributable to the UN and not to the UK The judge therefore rejected the Claimants’ challenge to Behrami, concluding that the weight of authority supported that decision.

Extraterritorial jurisdiction (Article 1 of the ECHR)

The judge rejected the Claimants’ submission that jurisdiction in this case could arise from the UK forces’ supposed “effective control” of a designated section of Kosovo. He stated:

“If it was absurd to suggest that the United Kingdom forces were in effective control of the area of Basrah in 2003 to 2005 [see Al-Skeini v. United Kingdom], it is equally absurd to argue that KFOR was, or could be expected to be, in effective control (in that sense) of central Kosovo within a matter of days of the military takeover pursuant to the [Military Technical Agreement].”

The judge also rejected the submission that there was Article 1 jurisdiction because of “state agent authority”—a legal concept that has the potential to allow for jurisdiction when the acts of a State’s agent produce effects beyond its own territory. The judge rejected that argument on the ground that UK forces never had any physical control of the Claimants’ relatives.

Obligation to investigate (Articles 2 and 3 of the ECHR)

The judge rejected the submission that, given the role of KFOR, there was an “operational protective duty” toward civilians under Articles 2 and 3 of the ECHR, because, as he had concluded already, the UK forces did not have effective control of the area. He also rejected the argument that UK forces had an obligation to investigate alleged wrongdoing simply on the basis that UK military police officers attached to KFOR had accepted an investigative role.

  

About the Author(s)

Shaheed Fatima Q.C.

Queen's Counsel Barrister practicing at Blackstone Chambers