Ding dong Bankovic is dead, well sort of…

“I believe that those who export war ought to see to the parallel export of guarantees against the atrocities of war.” – Giovanni Bonello

The Court issued its much anticipated Al-Skeini and Ors v UK judgment today. The Court found the UK in violation of its procedural obligation to investigate the deaths of a number of Iraqi civilians killed while the UK was an occupying power in the country (see my previous post). Thankfully it was not the jurisprudential bag of coal I had worried about receiving but was instead a vaguely satisfying answer to my letter to Santa. Akin to asking for an xbox 360 but receiving a wii, not exactly what you asked for but close enough. 

I'm still mulling over the finer points of the judgment but there are a few noteworthy aspects of it that i thought I'd share here.

Firstly, the court had 3 deliberation sessions over this judgment which is quite unusual even for contentious judgments. Normally, the court would meet immediately after a Grand Chamber hearing to deliberate. The majority’s decision would usually be reached after the first session with a follow up session a few months later to thrash out the finer details. This Grand Chamber judgment had 3 separate deliberation sessions, 1 on the day of the hearing, another a few days later and then a further session a year later. This indicates that there was extensive debate between the judges of the Grand Chamber, most likely about the appropriate scope of the judgment. It’s likely that there were quite a few compromises on this issue given that the final judgment was unanimous. A unanimous judgment was arguably necessary to give full force to the ECtHR’s interpretation of extra-territorial jurisdiction. The difference in weight of judgments (admissibility decision, chamber judgment and grand chamber judgment) has meant that apparent changes in the court’s approach to extra-territorial effect could be discounted by commentators as “just an admissibility decision” or chamber judgment. This is one of the reasons why the court’s chamber judgment in Issa v Turkey which contradicted Bankovic and Ors v Belgium and Ors in many ways was discounted in some quarters, as Bankovic was a Grand Chamber judgment while Issa was a simple chamber judgment.

Secondly, the Court engaged in a small amount of sleight of hand in this decision and neatly dodged the issue of attribution raised by the fact that the UK was part of a multi-national UN mandated force when some of the killings occurred. The Court had previously absolved states from responsibility under the Convention where they have been acting in such missions, the court had held that the conduct was attributable to the UN rather than the individual State (see inter alia Behrami and Saramati v France,  Bosphorus v Ireland) and it has been the source of much academic vitriol (see in particular Milanovic and Papic, ‘As Bad as it gets: the European Court of Human Rights's Behrami and Saramati Decision and General International Law’ (2009) International & Comparative Law Quarterly 267). The court dodged the issue by stating that as the UK had not raised the argument regarding attribution in the domestic cases they were estopped from doing so in the case at Strasbourg. - Al- Skeini at [100]

This judgment is a welcome one as it has buried quite a few of the court’s extra-territorial jurisdiction bloopers from Bankovic and other cases. Three in particular jump out from my preliminary look at the judgment. First, the idea that control over premises as distinct from control and authority over people gave rise to jurisdiction. Second, the idea that unless you can guarantee all the rights in the Convention you don’t have to guarantee any. Third, the idea of the ‘espace juridique’ which caused much academic bafflement post-Bankovic.

Control over premises

The European Court of Human Rights had begun to draw analogies between the jurisdiction held to arise in the context of embassies and consulates, and other situations where States and their agents exercise a high degree of autonomy within premises on foreign territory, specifically prisons and detention centres.  This shift was accompanied by a focus on control over premises as the source of jurisdiction, rather than on the acts of State agents and authorities. The court had held in Al-Saadoon and Mufdhi v UK that the jurisdiction arose in that case (following on from the Hess v UK judgment in 1975) because of the control that the contracting state exercised over the premises in which the victim of the human rights abuse was situated, as distinct from the control and authority the state exercised over the individual. Control and authority over the individual had been the benchmark in cases such as W.M v Denmark and Ocalan v Turkey.  In Al-Saadoon the court stated -

The Court considers that, given the total and exclusive de facto, and subsequently also de jure, control exercised by the UK authorities over the premises in question, the individuals detained there, including the applicants, were within the United Kingdom's jurisdiction [citing Hess v UK]. This conclusion is, moreover, consistent with the dicta of the House of Lords [citing R. (on the application of Al-Skeini) v Secretary of State for Defence [2007] 3 W.L.R.] - Al-Saadoon and Mufdhi v UK at [88] 

The ECtHR buried this developing and diverging ‘control over premises’ line of authority, which reared its ugly, unwanted and ultimately confusing head in the domestic case in Al-Saadoon. The court stated today in Al-Skeini and Ors v UK -

The Court does not consider that jurisdiction in the above cases (referring to Al-Saadoon and other cases) arose solely from the control exercised by the Contracting State over the buildings, aircraft or ship in which the individuals were held. What is decisive in such cases is the exercise of physical power and control over the person in question. – Al-Skeini and Ors v UK  at [136]

Accepted tailoring rights to circumstances

The Court had previously held that the application of the Convention was an all-or-nothing exercise in Bankovic. The court would not countenance any tailoring of obligations inherent in the Convention stating - 

'the wording of Art.1 does not provide any support for the applicants' suggestion that the positive obligation in Art.1 (to secure rights to all within the State’s jurisdiction) [...]  can be divided and tailored in accordance with the particular circumstances of the extra-territorial act in question'. Bankovic at [71]

This absolute statement was undermined in various ways in the court’s own jurisprudence and the Convention. Firstly, the Convention contains rights which by their nature cannot be secured outside the home territory, such as the right to move freely within the territory of a State as the court acknowledged in W.M. v Denmark. Secondly, the Court has tailored the obligations of the Convention where contracting States have lost control over a part of their home territory as the Court did in Ilascu and Ors v Moldova and Russia where states were only held to have to guarantee positive obligations. Thirdly, there is scope for cause and effect jurisdiction under the Convention (Andreou v Turkey, Pad v Turkey). The Court finally explicitly accepted that rights could be tailored and divided in certain circumstances in today's judgment stating -

It is clear that, whenever the State through its agents exercises control and authority over an individual, and thus jurisdiction, the State is under an obligation under Article 1 to secure to that individual the rights and freedoms under Section 1 of the Convention that are relevant to the situation of that individual. In this sense, therefore, the Convention rights can be “divided and tailored”.  – [137]

Espace juridique 

The Court had held in Bankovic that jurisdiction arising from effective territorial control could only arise within the espace juridique/legal space of Contracting States stating

'the Convention is a multi-lateral treaty operating [...] in an essentially regional context and notably in the legal space (espace juridique) of the Contracting States'.- Bankovic at [80]. 

Thus, jurisdiction could only arise through effective territorial control where the forces were on the territory of another contracting State to the Convention. The notion that the Convention has such a geographical limitation has prompted plenty of critical academic commentary. See for example Wilde, “The "legal space" or "espace juridique" of the European Convention on Human Rights: is it relevant to extraterritorial state action?” (2005) European Human Rights Law Review 116; Leach, “The British Military in Iraq - the Applicability of the Espace Juridique Doctrine under the European Convention on Human Rights” (2005) Public Law 448;

The court in Al-Skeini finally buried the idea of espace juridique in a paragraph which seemed  to wonder at what all the “espace juridique" fuss was all about. The court stated -

The Court has emphasised that, where the territory of one Convention State is occupied by the armed forces of another, the occupying State should in principle be held accountable under the Convention for breaches of human rights within the occupied territory, because to hold otherwise would be to deprive the population of that territory of the rights and freedoms hitherto enjoyed and would result in a “vacuum” of protection within the “Convention legal space” (see Loizidou (merits), cited above, §78; Banković, cited above, § 80). However, the importance of establishing the occupying State’s jurisdiction in such cases does not imply, a contrario, that jurisdiction under Article 1 of the Convention can never exist outside the territory covered by the Council of Europe Member States. The Court has not in its case-law applied any such restriction (see amongst other examples Öcalan, Issa, Al-Saadoon and Mufdhi, Medvedyev, all cited above). - Al- Skeini at [142]

A final comment is reserved for the now retired justice Giovanni Bonello’s extraordinary concurring opinion. Justice Bonello was one of the most senior and highly respected judges of the Court and what was perhaps his final concurring opinion at the Court is perhaps the most eloquent I have had the pleasure of reading. Judge Bonello couldn’t resist taking a pop at the UK and indeed a swipe at the UKSC to boot. The judge was particularly scathing in his assessment of the so called “human rights imperialism” argument championed by the late Lord Rodger in the House of Lords decision on Al-Skeini.  Lord Rodger had argued that -

“the idea that the United Kingdom was obliged to secure observance of all the rights and freedoms as interpreted by the European Court in the utterly different society of southern Iraq is manifestly absurd.”

While there was certainly some merit in Lord Rodger’s argument, the real problem lay in the context i.e. Lord Rodger had ignored the fact that the UK had illegally invaded Iraq in the first place and as a result the human rights imperialism argument reeked of hypocrisy. Judge Bonello stated - 

It ill behoves a State that imposed its military imperialism over another sovereign State without the frailest imprimatur from the international community, to resent the charge of having exported human rights imperialism to the vanquished enemy. It is like wearing with conceit your badge of international law banditry, but then recoiling in shock at being suspected of human rights promotion.

Amen to that.