The “ISIS Beatles” litigation in UK courts raises important issues about the geographic reach and content of human rights obligations, in particular those in the European Convention of Human Rights, in the national security space. By way of brief introduction, the “ISIS Beatles” refers to four British nationals who joined ISIS. Two of them are currently in the custody of Kurdish forces in Syria (another one, the famous “Jihadi John” having been killed in a drone strike, and the fourth one, let’s call him “Ringo,” being in custody in Turkey). The US is considering prosecuting the two, who had their British nationality reportedly removed by the UK. Let us assume that US authorities cannot proceed with prosecution, for lack of sufficient evidence against the two individuals, unless the UK shares intelligence and evidence it has gathered over a four-year period in which it was investigating them. Assume further that the UK never physically handles the two ISIS Beatles, and never transfers them to the US (as they will be transferred by the Kurdish forces holding them or in some other way). Can the sharing of vital information or evidence expose the UK to legal responsibility for ways in which their prosecution at Americans’ hands (let’s say by military commission in a capital punishment case) breaches these individuals’ human rights? In this article, I interrogate that question with respect to the application of the European Convention of Human Rights (ECHR).
[Note: Miles Jackson eerily foreshadowed a scenario like the one now being litigated in UK courts in his 2016 law review article, “Freeing Soering.”]
The question in this case focuses in particular on the obligations of the UK under Article 2 of the ECHR (right to life), as complemented by the prohibition of the death penalty in Protocol No 13, and under Article 3’s prohibition of torture, which includes the death row phenomenon according to the European Court of Human Rights (ECtHR) in the landmark Soering judgment. The logic behind the question is as follows: if the UK would be responsible under the ECHR for transferring individuals to another state where they face the real risk of being subjected to treatment contrary to certain provisions of the Convention, why should the UK be able to escape responsibility when it does not actually transfer them, but transfers vitally important information or evidence about them exposing them to the exact same risk?
I suggest answering this question in two steps: the first will be to consider the difficult notion of “jurisdiction” in human rights treaties and in particular the ECHR. Notably the concept is different than that of jurisdiction in general international law. Establishing whether an individual (even if outside a state’s territory) is within that state’s jurisdiction is crucial for the rights protected by the Convention being triggered. Put another way, jurisdiction brings the ECHR into application, in accordance with its Article 1. This however is only a threshold question: even if an individual is within the state’s jurisdiction, this does not mean that the state necessarily becomes responsible for a violation of the Convention when sharing information. Whether it does so would depend on conduct attributable to that state also being in breach of an obligation under the Convention.
Jurisdiction under the ECHR
As noted, when and whether a person comes under (or within) the jurisdiction of a state is a crucial question for purposes of applying international human rights law. Under major human rights treaties, an individual must be within the jurisdiction of a state for the treaty obligations of that state to kick in. In other words, states undertake to protect the human rights only of those within their jurisdiction, which is quite intuitive.
What is less clear sometimes is determining when a particular individual is within the jurisdiction of a particular state. To illustrate, the “ISIS Beatles” are neither in the territory of the UK, nor in a territory or space under UK control, nor are they under the physical control of UK organs (and thus the UK). However, the UK does appear to have immediate control over their fate, in the sense that only its sharing of evidence can enable their prosecution in the US, exposing them to a real risk of being subject to the death penalty. In breaking with longstanding policy, the UK has failed to request assurances from the US that the death penalty will not be applied, prior to agreeing to share evidence, and this is what is being challenged in UK courts. More broadly, however, is the ECHR applicable in such a situation, and would it prevent the UK from sharing evidence with US authorities because of the real risk of exposing them to treatment contrary to Articles 2 and 3?
The ECtHR has long been troubled by the notion of “jurisdiction” in Article 1 of the Convention. In Loizidou, the Court found that the “control” exercised by Turkey over the northern part of Cyprus meant that the territory, and the individuals therein, were within the jurisdiction of Turkey and thus the Convention obligations applied. However, in Banković (in 2001), the ECtHR refused to accept that the life-and-death control of some NATO states over individuals in the Belgrade TV tower (which NATO decided to target) established these states’ jurisdiction over them, at least in terms of the right to life. The ECtHR found that rights under the Convention could not be “divided and tailored” (according to the extent of jurisdiction exercised over someone) and that in any event Serbia (not being a party to the ECHR) was not within the “espace juridique” (the juridical space) of the Convention. This latter, peculiar concept of “espace juridique” we can quickly forget, as the ECtHR seems to have itself forgotten to give any effect to it ever since Banković.
Ever since the Banković decision, the ECtHR has been cautiously (some would say clumsily) backpedalling also from the view that the rights under the Convention cannot be divided and tailored, notably in cases like Issa (in 2005) and all the way to Al-Skeini (in 2011). In that latter case, the Court all but overturned Banković. It appeared to accept that rights under the Convention can be divided and tailored according to the extent of control, and thus jurisdiction, that a State exercises over a particular area (and thus individuals within it), or over individuals physically. But the Court did not go as far as accepting that simply having life-and-death power over an individual not within a state’s physical control amounted to jurisdiction. It found that the UK had jurisdiction over individuals shot by UK troops on patrol in an area of Iraq not under the effective control of the UK, because of the combined fact that these UK organs had life-and-death power over these individuals and the UK was exercising at least some “public powers” in Iraq.
This can be seen as the ECtHR’s attempt to put some limits to the notion of jurisdiction under Article 1 of the Convention, and thus to the extra-territorial scope of application of the ECHR. In other words, it sought to keep the notion of jurisdiction connected in some sense to control over territory or to actual physical control over a person. This should help avoid a completely “non-territorial” scope of application of the Convention. This may make sense to those who subscribe to the normative undertow of such a policy, namely that we ought to somehow circumscribe the scope of application of human rights obligations. Otherwise, the floodgate argument goes, nothing would stop the ECHR applying (to some extent) whenever a state party exercises any power or control over the fate of any individual anywhere on the globe. But does this restrictive (beware-of-the-floodgates) policy make sense? And is it also the law?
My view would be “no” on both counts – and it seems that I am in good company, as Marko Milanovic gives the same answer (though his approach is slightly different) in his Harvard JIL article, “Human Rights Treaties and Foreign Surveillance.” A state must be considered as having jurisdiction over an individual whenever it has any control over the fate of that individual. This triggers the obligations under the Convention. This must be the case, because the concept of individuals coming within the jurisdiction of a state for the purposes of application of the ECHR, even when these individuals are outside the territory of the state, is not a question of law, but a question of fact. It is the fact that a space outside the territory of the state is under the control of that state, even if that is happening in violation of the law. The individuals therein, the ECtHR has found, are within the jurisdiction of that state. It is a question of fact that an individual outside the territory of the state is under the physical control of that state (through one of its organs detaining it), and thus comes under the jurisdiction of the state, as the ECtHR has also found. This is also irrespective of whether the state is entitled to exercise authority and control over that individual under the law. It is also a question of fact whether a particular individual’s fate is otherwise under the control of the state, even if that individual is nowhere near territory controlled by the state, or nowhere near state agents. In what way is my power over your fate different when one of my agents holds you and strangles you on the spot, pushes the fire button that releases a missile from a drone (or aircraft) toward a building or vehicle that you are in, or pushes the “send” button on information that will invariably lead to some adverse effect on you (assuming that you can establish causation)? To draw a distinction between these scenarios in an age where a state can decisively affect the fate of individuals through the exercise of its power and authority even when these individuals are nowhere near its territory or agents would make little sense.
How much control the state has is a question of fact. What obligations the state may be said to violate in such a case is a question of the content of the relevant obligations. And the amount of control needed to trigger the obligations is a function of the state conduct that the particular obligation requires.
Scope of the obligations under the ECHR
The issue of jurisdiction is only a threshold question. That (some of) the obligations under the Convention may be applicable in certain circumstances tells us nothing about whether a state party has become internationally responsible for having violated them when those same circumstances arise. This is a second-order question, one which requires that conduct that is attributable to the state is also in breach of that state’s obligation under the ECHR. To illustrate in the particular instance, the fact that the Convention is applicable with respect to how the UK exercises whatever power it has over the “ISIS Beatles” does not also mean that the UK has violated the Convention in exercising that power. That is simply a separate question.
The answer to that separate question would depend on the content of the obligations regarding the right to life and the prohibition of torture. As is known, these obligations prohibit the state from turning over an individual to another state where the individual faces a real risk of being subjected to treatment contrary to the Convention requirements, such as the death penalty. The ECtHR has clearly found so in cases like Soering and Othman. So, the state should not expose an individual to treatment contrary to the Convention when it has the power to do so by abstaining from an act (here: the transfer of that person to another state). But if this is the logic behind this obligation, why should it apply only when a state physically turns over an individual to where she faces such a real risk, and not when evidence shared with a state exposes the individual to that very same real risk? This is a question not of jurisdiction and applicability of the ECHR, but rather one of the scope and content of the primary obligations of a state under Articles 2 and 3 (or other relevant provisions) of the ECHR.
Some may take the position that this line of argument unreasonably expands the scope of application of the European Convention or of international human rights law in general, rendering it “non-territorial.” I suppose that this is something on which we would have to agree to differ. First, I would argue that there is nothing wrong with “non-territorial” application of the ECHR, or of all of international human rights law for that matter. In fact, I like the term better than “extra-territorial” jurisdiction or application. While one might argue that the Convention in the case of the “ISIS Beatles” would apply extra-territorially under the construction here discussed, that is, it would apply to individuals outside the territory of the UK, I would rather see it as applying irrespective of territory. “Extra-territorial” application might somehow imply that the UK is exercising jurisdiction outside its territory and, by implication, on some other territory. Here, however, the Convention merely applies to the UK when the latter has the power and authority to affect these individuals in a way which implicates rights that they would enjoy under the Convention wherever they may happen to be. In that sense, the Convention’s application is not “extra-territorial,” and the UK is not exercising “extra-territorial” jurisdiction. It merely exercises jurisdiction over them, in the sense of having control over their fate. And in such circumstances, it ought to be bound to secure the rights it has agreed to secure whenever it exercises power over individuals. Territory has nothing to do with it.
Second, I argue here that the conduct of the UK in sharing evidence in the circumstances is prohibited by the provisions of Article 2 and 3 ECHR. This connects with the issue of complicity, or “aid or assistance in the commission of a wrongful act by another state” in Article 16 of the ILC Articles on State Responsibility. Indeed, one could argue that such conduct as the one described above ought not to be caught by the ECHR per se, but simply become a question of aid or assistance (complicity). While this latter argument may go some way toward alleviating concerns, it does not go far enough. Notably, states are not under the same human rights obligations beyond those reflected in customary international law, and Article 16 requires that an internationally wrongful act be at the very least committed by the perpetrator state. The example of the “ISIS Beatles” brings the limited reach of Article 16 into sharp relief: while the application of the death penalty might not constitute an internationally wrongful act for the United States, it would certainly constitute one for the UK under the ECHR.
Instead, I argue that there is no reason to resort to complicity, because a prohibition of the conduct that would be covered by the complicity rule is “built into” the obligations established in Articles 2 and 3 ECHR (and in this sense my argument is similar to that of Jackson in “Freeing Soering”). The prohibition of transfers of individuals to a state where they may face real risk of treatment contrary to the Convention is a stark example of this: an act facilitating treatment contrary to the Convention by another state is prohibited directly by the Convention’s primary rules. Were it to be otherwise in cases where the state bound by the Convention otherwise facilitates such treatment and exposes to such treatment individuals over whose fate it has at least some control, we would be facing an absurdum. I am happy to embrace the absurdity of human existence, but not of law.
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