ECtHR – Al-Skeini and Others v. the United Kingdom, Application No. 55721/07, 7 July 2011

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Country of Applicant: 
Iraq
Date of Decision: 
07-07-2011
Citation: 
Al-Skeini and Others v the United Kingdom, Application No. 55721/07 [2011] ECtHR
Court Name: 
European Court of Human Rights (Grand Chamber)
Headnote: 

The applicants were the relatives of Iraqi civilians killed by British soldiers in Iraq in 2003 during British security operations. The Court held that the deceased fell within the jurisdiction of the UK within the meaning of Article 1 ECHR, and that the UK had breached its obligation under Article 2 to carry out an adequate and effective investigation into the deaths with respect to the first five applicants.

Facts: 
The applicants are the relatives of 6 Iraqi civilians killed in Basrah, Iraq, in 2003 during British security operations.
On 20 March 2003, a coalition of armed forces led by the United States with a large force from the United Kingdom, commenced the invasion of Iraq. Basrah was captured by the British by 5 April 2003 and major combat operations in Iraq were declared complete on 1 May 2003. 
 
On 8 May 2003, the Coalition Provisional Authority (CPA) was created and divided into regional areas, with the Southern part of Iraq placed under UK responsibility and UK troops deployed in the area.
 
The applicants’ relatives were killed between 8 May 2003 and 10 November 2003. The first four were killed by British soldiers on patrol or during raids, the fifth apparently as the result of being beaten up and forced into the river by British soldiers who had arrested him, and the sixth, found to have had 93 identifiable injuries on his body, as a result of suffocation whilst in custody of the British Army.
 
On 26 March 2004, the Secretary of State for Defence decided, in connection to the deaths of 13 Iraqi civilians including the relatives of the 6 applicants: not to conduct inquiries into the deaths, not to accept liability for the deaths, and not to pay just satisfaction.
 
The applicants applied for judicial review of these decisions under Article 2 ECHR – and Article 3 ECHR for the sixth applicant. The cases of the first four applicants and of the sixth were heard by the Divisional Court.
 
On 14 December 2004, the Divisional Court rejected the claims of the first four applicants but accepted the claim of the sixth. This was confirmed by the Court of Appeal 21 September 2005 and by the House of Lords on 13 June 2007 after the first four applicants appealed and the Secretary of State cross-appealed (in relation to the sixth applicant’s case).
 
On 11 December 2007, the applicants lodged an application with the ECtHR, alleging a breach of Article 2 ECHR by the United Kingdom.
 
Decision & Reasoning: 

Article 2 ECHR – Preliminary questions

Attribution

The Government submitted that as the deaths of the second and third applicants’ relatives occurred after 16 October 2003 when the UNSC adopted resolution 1511, UK troops were not exercising the sovereign authority of the United Kingdom but the international authority of the Multi-National Force acting pursuant to the binding decision of the UNSC, in conducting the operations in which the second and third applicants’ relatives were shot. The Court rejected this argument as the Government had not raised it during the domestic proceedings.

Jurisdiction

The Court considered that the question of whether the applicants’ cases fell within the jurisdiction of the UK was closely linked to the merits of their complaints and therefore joined it to the merits.

Exhaustion of domestic remedies

The Government submitted that the fifth applicant’s case should be declared inadmissible for non-exhaustion of domestic remedies. The Court however considered that the applicants were correct in their assessment that the fifth applicant would have had no prospects of success had he sought to revive his claim before the Divisional Court. The Court therefore rejected the Government’s preliminary objection based on non-exhaustion of domestic remedies.

Victim status

The Government submitted that the fifth and sixth applicants could no longer claim to be victims of any violations of their rights under Article 2 ECHR, since the deaths of their relatives had been fully investigated by the national authorities and compensation paid to the applicants. The Court considered that this question was also closely linked and therefore joined it to the merits of the complaints.

 Article 2 ECHR – Merits

Jurisdiction

The Court first of all found, concerning the issue of jurisdiction, that from the removal from power of the Ba’ath regime on 1 May 2003 until the accession of the Interim Government on 28 June 2004, the UK assumed in Iraq the exercise of some of the public powers normally to be exercised by a sovereign government, especially with regards to the maintenance of security in South East Iraq. Therefore the Court held that for this period the UK had jurisdiction over the deceased for the purposes of Article 1 ECHR, as their deaths occurred between 8 May and 10 November 2003, and the argument of the Government that it did not exercise any Article 1 jurisdiction over the relatives of the first four applicants at the time of their deaths was rejected.

Breach of investigative duty under Article 2

Secondly, the applicants complained that the Government had not fulfilled its procedural duty to carry out an effective investigation into the killings within Article 2. The Government accepted the conclusion that it was clear that the investigations into the shootings of the first three applicants’ relatives fell short of the requirement of Article 2.

Concerning the fourth and fifth applicants, the Court found that even though there was an investigation by the Special Investigation Branch into the deaths of their relatives, this was insufficient to comply with the requirements of Article 2. Indeed, for the fourth applicant the Court found that the investigation was flawed as the Special Investigation Branch was not operationally independent from the military chain of command. In the case of the fifth applicant, the Court found that the effectiveness of the investigations were seriously undermined by the long delay between the death and the court-martial, as some of the soldiers involved were by then untraceable. Moreover, the Court considered the narrow focus of the criminal proceedings against the accused soldiers to be inadequate to satisfy the requirements of Article 2. The Court thus found that the procedural duty under Article 2 had not been satisfied in respect of the fifth applicant as there had never been a full and independent investigation into the circumstances of the death. The Government’s preliminary objection regarding the lack of victim status of the fifth applicant was therefore rejected.

Concerning the sixth applicant, as a full, public inquiry into the circumstances of the death is nearing completion, the Court found that the sixth applicant was no longer a victim of any breach of the procedural obligation under Article 2. It thus accepted the Government’s preliminary objection in respect of the lack of victim status of the sixth applicant.

In conclusion, the Court found that the Government had violated its procedural duty under Article 2 with regards to the first, second, third, fourth and fifth applicants.

Outcome: 
Application partly successful.
 
The Court unanimously held that the applicants’ deceased relatives fell within the jurisdiction of the UK, that the sixth applicant could no longer claim to be a victim of a violation of the procedural obligation under Article 2, and that the Government had breached its procedural obligation under Article 2 to carry out an adequate and effective investigation into the deaths of the relatives of the first five applicants.
 
The Court further held that the UK was to pay each of the first five applicants EUR 17,000 in respect of non-pecuniary damage, and EUR 50,000 to the first five applicants jointly, in respect of costs and expenses.
 
Subsequent Proceedings : 

On the 18 October 2016 the Committee of Ministers of the Council of Europe found the UK to have fulfilled its obligations under Article 46(2) of the Convention and closed the case. 

Observations/Comments: 
Domestic proceedings in the UK:
 
On 14 December 2004, the Divisional Court held that deaths as a result of military operations in the field, such as those complained of by the first four applicants, did not fall within the UK’s jurisdiction under Article 1 ECHR, but that the death of the sixth applicant’s relative, having occurred in a British military prison, did. The Divisional Court therefore rejected the claims of the first four applicants, but in respect of the claim of the sixth applicant, it held that there had been a breach of the investigative duty under Articles 2 and 3 ECHR since, by July 2004, some ten months after the killing, the results of the investigation were unknown and inconclusive.
 
The first four applicants appealed and the Secretary of State cross-appealed in relation to the sixth applicant’s case.
 
On 21 September 2005 the Court of Appeal dismissed the appeals and the cross-appeal and ordered the sixth applicant’s case to be remitted to the Divisional Court as more information had since emerged.
 
Again, the first four applicants appealed and the Secretary of State cross-appealed.
 
On 13 June 2007, the House of Lords confirmed the judgments of the Divisional Court and Court of Appeal.
 
Articles discussing the case:
 
Marko Milanovic;  Al-Skeini and Al-Jedda in Strasbourg, European Journal of International Law, Volume 23, Issue 1, 1 February 2012, Pages 121–139, https://academic.oup.com/ejil/article/23/1/121/525492
Well Bennett; The Extraterritorial Effect of Human Rights: the ECHR’s Al-Skeini decision, Lawfare, 12 July 2011, https://www.lawfareblog.com/extraterritorial-effect-human-rights-echrs-al-skeini-decision#
 
 
 
 

This case summary was written by Emily Claire Procter, GDL student at BPP University.

 
 
 
Case Law Cited: 

ECtHR - Ülbü Ekinci v. Turkey (no. 27602/95, ECHR 16 July 2002)

ECtHR- Assanidze v. Georgia [GC], Application no. 71503/01

ECtHR - Hugh Jordan v. the United Kingdom, no. 24746/94, 4 May 2001

Tanrikulu v Turkey, No. 23763/94, 08 July 1999

ECtHR - Issa and Others v. Turkey, no. 31821/96

ECtHR - Kaya v. Turkey, Application no. 22535/93

ECtHR - Khashiev and Akayeva v. Russia nos. 57942/00 and 57945/00

ECtHR- McCann and Others v. the United Kingdom, Application no. 18984/91

ECtHR- Bazorkina v. Russia, (Application no. 69481/01)

ECtHR - Natchova and Others v. Bulgaria [GC], Application Nos. 43577/98 and 43579/98

ECtHR - Medvedyev and Others v France, [GC], Application No. 3394/03

ECtHR - Drozd and Janousek v. France and Spain, 26 June 1992, § 91, Series A No. 240

ECtHR - Bankovic and Others v Belgium and 16 other Contracting States [GC], Application No. 52207/99

ECtHR - A. and Others v. the United Kingdom [GC], Application No. 3455/05

ECtHR - Ergi v. Turkey, No. 23818/94, 28 July 1998

UK - R (Al Skeini and Others) v. the Secretary of State for Defence [2004] EWHC 2911 (Admin)

ECtHR - Varnava and Others v. Turkey [GC] (nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, ECHR 18 September 2009)

ECtHR - Shanaghan v. the United Kingdom (no. 37715/97, ECHR 4 May 2001)

ECtHR - Musayev and Others v. Russia (nos. 57941/00, 58699/00 and 60403/00, ECHR 26 July 2007)

ECtHR - Kanlibaş v. Turkey (no. 32444/96, ECHR 8 December 2005)

ECtHR - Ahmet Özkan and Others v. Turkey (no. 21689/93, ECHR 6 April 2004)

ECtHR - Güleç v. Turkey, 54/1997/838/1044, 27 July 1998

ECtHR - Tzekov v. Bulgaria (no. 45500/99), 23 February 2006

ECtHR - Finucane v. the United Kingdom (no. 29178/95, ECHR 1 October 2003)

ECtHR - McKerr v. the United Kingdom (no. 28883/95, ECHR 4 May 2001)

ECtHR - X v. Federal Republic of Germany, (no. 1611/62, Commission decision 25 September 1965)

ECtHR - Quark Fishing Ltd v. the United Kingdom (no. 15305/06, ECHR 19 September 2006)

ECtHR - Öcalan v. Turkey [GC] (no. 46221/99, ECHR 12 May 2005)

ECtHR - X and Y v. Switzerland (admissibility decision) (nos. 7289/75 and 7349/76, ECHR 14 July 1977)

ECtHR - Gentilhomme and Others v. France (nos. 48205/99, 48207/99 and 48209/99, ECHR 14 May 2002)

ECtHR - WM v. Denmark (no. 17392/90, Commission decision 14 October 1993)

ECtHR - X v. the United Kingdom (no. 7547/76, Commission decision 15 December 1977)

ECtHR - Loizidou v Turkey (Application no. 40/1993 and 435/514)
Other sources cited: 
International Court of Justice
Advisory Opinion on the case of: Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 9 July 2004
Judgment on the case of: Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), 19 December 2005
 
Inter-American Court of Human Rights
Judgment on the case of: the Mapiripán Massacre v. Colombia, 15 September 2005
 
Geneva Conventions
Articles 49 and 50 of the First Geneva Convention
Articles 50 and 51 of the Second Geneva Convention
Articles 121, 129 and 130 of the Third Geneva Convention
Articles 8, 27 to 34, 47 to 78, 131, 146, 147 and Additional Protocol I of the Fourth Geneva Convention
 
International Covenant on Civil and Political Rights:
Articles 4 (1), 6, and cited as a whole
 
United Nations Security Council Resolutions:
Resolution 1511, 16 October 2003
Resolution 1483, 22 May 2003
Resolution 1546, 8 June 2004
 

 

Authentic Language: 
English
State Party: 
United Kingdom