On September 9, the United Kingdom’s Court of Appeal delivered its judgment in Al-Saadoon and Others v. Secretary of State for Defence. This is a case dealing with almost 1,300 outstanding public law claims arising from activities of the UK’s armed forces in Iraq following the 2003 invasion. Importantly, the judgment reverses the earlier decision of the High Court 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.
As I discussed in an earlier post and International Law Studies article, this represented a significant expansion in the extraterritorial applicability of the ECHR, particularly in the context of military operations overseas. As predicted, however, the Court of Appeal adopted a more conservative approach. While acknowledging the logic of the High Court’s judgment, the Court of Appeal was unable to reconcile the conclusion with the jurisprudence of the European Court of Human Rights (ECtHR), and ultimately considered that such a step should be left to the ECtHR rather than the domestic courts. In this post I will briefly explain the background to the Court of Appeal’s judgment and summarize its reasoning.
To recap, the Court of Appeal’s judgment in Al-Saadoon concerns the UK’s duty under the ECHR to conduct effective and independent investigations in certain circumstances where a breach of the ECHR is alleged to have occurred. The case raises several issues relating not only to the duty to investigate, but also to the extraterritorial applicability of the ECHR. Obviously, if the ECHR doesn’t apply in any particular circumstances then the duty to investigate (or any other obligation) under the ECHR cannot arise. Given the burden that a broad application of the ECHR to overseas military operations might impose, the UK government has argued consistently to restrict the circumstances in which the ECHR applies extraterritorially.
The question of the extraterritorial applicability of the ECHR has been subject to extensive litigation, both in domestic courts and in the ECtHR. The ECHR’s applicability is governed by Article 1, which states: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.”
At the heart of the debate, therefore, has been the question of what it means to be “within the jurisdiction” of a State for the purposes of Article 1. Without rehearsing the full, convoluted, history, it suffices to highlight two cases in particular. First, in Banković, the ECtHR found that the ECHR would apply extraterritorially only in a narrow category of cases, most importantly where a State exercises “public powers” as a result of its effective control over a territory and its inhabitants. Significantly, Banković was concerned with the bombing of a radio station in Belgrade, in circumstances where the only link between the attackers and the alleged victims was the use of force itself. On its own narrow facts, therefore, Banković appeared clearly to reject the notion that the use of physical force, alone, is sufficient to amount to jurisdiction for the purposes of Article 1.
Notwithstanding its decision in Banković, in subsequent cases the ECtHR appeared to recognize a broader set of circumstances in which the ECHR applies extraterritorially. However, the jurisprudence was inconsistent and it wasn’t until the case of Al-Skeini that a degree of clarity was established. In Al-Skeini, the ECtHR reaffirmed that jurisdiction is “primarily territorial”, but also recognized the possibility of personal jurisdiction, where “the State, through its agents, exercises control and authority over an individual.” This, the Court, found, would be the case in a number of situations, including where a State is acting pursuant to the exercise of public powers, and where a State agent exercises “physical power and control” over an individual.
While detention of an individual by a State agent undoubtedly amounts to physical power and control, Al-Skeini did not make clear whether the mere use of physical force (e.g. shooting or bombing) would, contrary to Banković, suffice. On the facts of Al-Skeini the ECtHR found jurisdiction to have been established where force was used, absent detention, but only in the context of security operations amounting to the exercise of public powers, i.e. powers which are normally exercised by a government authority. Furthermore, at no point has the ECtHR expressly overruled Banković, suggesting that it might, to some extent, still reflect the ECtHR’s understanding of the law, at least on this narrow point. It remained uncertain, therefore, whether the extraterritorial use of force against an individual, other than as an exercise of public powers, could alone engage a State’s obligations under the ECHR.
When the High Court addressed this question in its Al-Saadoon judgment, it relied heavily on arguments of principle, finding “it impossible to say that shooting someone dead does not involve the exercise of physical power and control over that person.” It rejected a distinction based on the exercise of public powers, identifying an “essential principle” 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.” Government arguments that this would be contrary to even the narrow decision on the facts in Banković were considered by the High Court to be unsustainable in the light of Al-Skeini.
As I noted at the time, the consequences of such a conclusion are significant. It would extend the ECHR’s applicability to every situation where State agents, including members of the armed forces, use physical force. Even if the rules governing the use of force under human rights law can be reconciled with those found in international humanitarian law through the principle of lex specialis, which is by no means certain, other procedural obligations, such as the duty to investigate alleged breaches, would still apply. While this is already the situation where force is used extraterritorially in the exercise of public powers, the High Court’s findings represented, at the very least, an expansion of the circumstances in which this is an issue.
The Court of Appeal’s judgment
The Court of Appeal’s judgment includes an exceptionally clear summary of the law concerning the extraterritorial application of the ECHR. Having summarized the relevant law, it proceeds to deal with the particular question of the physical power and control standard at paragraphs 58–73.
From the outset, the Court of Appeal acknowledged the force of the argument made by the High Court, recognizing that the distinctions between different types of physical power and control arguably fall away when the principles set out in Al-Skeini are approached as a matter of principle and followed through to their logical conclusion. It accepted, at para. 62, that:
The Strasbourg court in Al-Skeini has departed from Bankovic in accepting a ground of extra-territorial jurisdiction founded on state agent authority and control which is, on any view, of enormous breadth. I accept that once this exception is admitted it becomes acutely difficult to distinguish between differing degrees of authority and control which may or may not as a result give rise to extra-territorial jurisdiction. As the judge demonstrated in his powerful judgment, the genie having been released from the bottle, it may now prove impossible to contain.
Nevertheless, the judgment proceeded to state that “this is what the Grand Chamber has attempted to do in Al-Skeini.” The Court of Appeal considered, at para. 63, that:
If it had been the intention of the Grand Chamber to create an all-embracing principle of extra-territorial jurisdiction of the breadth of that accepted by the judge, it would have been an even greater departure from the previous authorities, requiring a particularly clear, express statement. On the contrary, all the indications are that the Grand Chamber intended to set limits on the scope of this exception.
The Court of Appeal emphasized that the cases referred to by the ECtHR in deriving the physical power and control standard all dealt with instances of detention. Indeed, the Court of Appeal noted the ECtHR’s “careful use of language” in Al-Skeini in identifying this particular factual feature. Furthermore, while there existed a line of authority (particular the case of Isaak) from which a broader scope for the physical power and control standard might have been derived, the Court of Appeal considered that the ECtHR chose consciously not to do so.
Turning to the application of the principle by the ECtHR to the facts of Al-Skeini, the Court of Appeal noted that the ECtHR relied solely on the “public powers” category, rather than applying the physical power and control standard. The Court of Appeal considered that if the ECtHR had considered the physical power and control standard to be sufficiently broad to cover the use of force without detention, it would have stated this as an alternative basis for finding jurisdiction, but clearly failed to do so. Similarly, in Jaloud, the ECtHR “examined at length the applicability of the public powers exception” in a case involving the use of force without detention. If the ECtHR had considered the physical power and control standard to have been applicable, then “this would have provided a simple and direct route to the same conclusion.”
Nevertheless, the Court of Appeal was unconvinced by arguments based directly on the continuing effect of Banković. The Government had argued that references to the earlier case in Al-Skeini meant that the ECtHR must not have intended to overrule it. However, the Court of Appeal did not consider that it could be inferred from “sporadic references…in footnotes, that the Grand Chamber must be taken to have intended that the conclusion in the earlier case that the bombing was outside the scope of the Convention should stand.” Nevertheless, while the Court of Appeal acknowledged that Al-Skeini “departs from Bankovic in a number of important respects,” this was not recognized or considered in the Al-Skeini judgment and “[i]t would not be appropriate to speculate as to the reason for this failure.”
Having considered the jurisprudence, the Court of Appeal ultimately could not reconcile the conclusion reached by the High Court with the ECtHR’s earlier decisions. It considered that the ECtHR had intended the physical power and control standard to require “a greater degree of power and control than that represented by the use of lethal or potentially lethal force alone.” Indeed, it considered the intention of the ECtHR to have been “to require that there be an element of control of the individual prior to the use of lethal force.”
The Court of Appeal recognized that distinguishing between different manifestations of power and control might be difficult. Indeed, it acknowledged that “that this will result in fine and sometimes tenuous distinctions.” However, it considered that “if the logical consequence of the principle stated in Al-Skeini is that any use of extra-territorial violence is within the acting state’s jurisdiction for this purpose, [then] that is a conclusion which must be drawn by the Strasbourg court itself and not by a national court.”
More broadly, the Court of Appeal recognized, as the High Court had done before, the potential issues arising from an expanded extraterritorial application of the ECHR. Indeed, these consequences arise “on any reading of Al-Skeini.” Nevertheless, the Court of Appeal shared the view of the High Court that this does not amount to a legitimate reason for declining to implement the ECtHR’s position on the ECHR’s extraterritorial applicability.
Impact of the judgment
The direct impact of the Court of Appeal’s judgment is to overrule the earlier High Court decision. Within UK domestic law, therefore, the position for the time being is that the use of force, alone, cannot amount to physical power and control such as to engage ECHR obligations extraterritorially. However, the decision is likely to be appealed by the claimants to the UK Supreme Court, where the question will be examined again. If the Supreme Court shares the view of the Court of Appeal, then the case may end up being heard in Strasbourg.
In terms of our broader understanding of the law, the Court of Appeal’s judgment represents a more conservative counterpoint to the High Court’s earlier ruling. While retaining distinctions between different types of power and control might give rise to sometimes arbitrary consequences in terms of the applicability of the ECHR, the Court of Appeal ultimately could not be persuaded that the ECtHR had intended otherwise.
The Supreme Court may well share that view, effectively deferring to Strasbourg. Nevertheless, it is clear that the Court of Appeal recognized the force of the High Court’s reasoning. Those arguments, albeit based largely on principle and logic, remain as cogent and persuasive as ever.