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| Hazim Al-Skeini |
As we will discuss in class this week, the European Court of Human Rights in July of 2011 handed down a judgment with respect to the same case that we examined today, the House of Lords decision in
Al-Skeini v. Secretary of State for Defence, holding that the Iraqi nationals could make claims under the Convention, and finding that the UK had, among other things, violated the claimants' Art. 2 right to life. There is a summary and commentary on the judgment on the Lawfare blog
here, and the decision itself is
here.
Please take a look at the decision, and consider whether you still think that the House of Lords got it right (or wrong), and which decision you think better accords with international law principles on jurisdiction, and the rationale underlying those principles.
I was going to wait until someone else commented, but eh, guess I'll get the ball rolling. From what I understand, the ECHR decision is the better one from my perspective. Most of the killings occurred while the British soldiers were patrolling a set area (so pretty much exercising control over it). You can't go into a city, regularly patrol around with guns, kill people you deem to be a threat without giving them any warning, then say "Nope, we weren't trying to exercise control over that area." Plus the ECHR case seemed to largely care about the investigation aspect of things. Whether the killings were ultimately justified is one thing (which I won't go into), but there's no reason not to do a better job of investigating it. Merely asking the group of soldiers what they think happened isn't enough. The police don't just investigate a suspect and say, "Well, he says it was justified so it must be. Time to go home and drink a beer." You have to investigate more than that.
ReplyDeleteI don't think this case violates any of the international law principles either. If you go into a set area in another country, and patrol/exercise control over a set area than you can't turn around and claim that what you can't be held liable for what your soldiers did in that area. That seems like common sense.
All that said - that's just what I think with my current understanding of both cases. I might have misunderstood something.
I am largely in agreement with Jennifer. It seems that any other outcome would benefit the "World Police" countries to the detriment of all the other countries being policed. To me it doesn't appear as if there's any strong counter-argument to holding the world's biggest armed forces to a higher standard than they are currently.
ReplyDeleteI think Jennifer nailed it. This seems kind of comparable to the hypothetical we had in class the other day about the US and an Iraqi civilian on the air base. It seems like states sometimes want to have their "cake and eat it too" that they want full jurisdiction or authority but don't want to grant any national right under it. I am wondering if they interviewed any other civilians or soldiers and what other details they looked into like what time of the day it was, but I guess that is more about if the killing was justifiable, not about jurisdiction. According to the article, the UK, doesn't deny that on UK installations they should in fact be liable. Under the Territorial Principle, I am wondering if the area of Basarah falls under that category. I guess if they had the right or jurisdiction in the first place, they should be held liable for the actions that happen in it, especially to civilians. I'll stop babbling, hope that makes sense. Wish I would have read this one more closely before the Mid-Term. Ha. Anthony
ReplyDeleteI too agree that the ECHR decision seems like the most objective and reasonable outcome. I think Bonello summed it up pretty well in his concurrence that you can't exercise military imperialism while simultaneously resenting human rights imperialism.
ReplyDeleteI also thought it was interesting that the UK invoked that they did not violate their Rules of Engagement during this incidents. I know rules of engagement change a lot depending on the situation, time and place, so how does a country's own rules of engagement play into their international legal accountability?
To your second point, it is interesting. Rules of Engagement (ROE) are the policy limitations on the conduct of armed forces, which must at a minimum reflect international humanitarian law (or law of armed conflict) principles, but can be more stringent. On the other hand, ROE are sometimes such that strict compliance with the ROE could still result in a violation of IHL. To say that the UK forces had complied with their ROE is no argument - the question was whether their actions violated the Convention, if the Convention applied in the circumstances.
DeleteJust to play devil's advocate here
ReplyDelete, it seemed like the court was trying to do some equity here. The reason they felt they could step in is that the UK didn't conduct a sufficient investigation, but, from the reading it seemed like the problem they had with it was that the investigative body was part of the same command and control structure as the military. This seems like an unfair dismissal, lots of organizations have their own internal investigations arms, and without more evidence it doesn't seem right to dismiss their efforts because they did not reach the conclusion that you wanted. The other issue is with the technical forensic abilities. I think some leeway should be given here considering it was a war zone, and there was a local tradition of burying the body within 24 hours, making forensic analysis difficult.
Just to note, this is not to say these soldiers actions were ok or excusable. They were not. It is only a question of the proper means of securing justice. From what I recall of the House of Lords decision, in rejecting the HRA applicability said as much and suggested that the plaintiff could find relief under the UK's military courts.
Jennifer's logic is very straightforward and reasonable. The fact of the matter that a military controlling a city, via patrols and a presence, should not a defend of later state that it was not within its territory. When any government seizes control over an area and begin to control day-to-day actions of the individuals it seems as if they have territorial control. Later back tracking and stating that they did not have territorial control over the area seems farfetched.
ReplyDeleteIt seems to me that when any government seizes an area they will eventually come to a line of "who controls these lands." It is at the point where they are more culpable for any of the actions of their citizens and the citizen's needs of that place. Being able to later back track and say "that's not my land" is almost too great of an excuse to allow for murder, rape, and pillaging to be allowed.
-Stephen Stocks
The issue is more specifically one of jurisdiction, not territory. Typically "territory" as it is used here will refer to the territory of the state, and there is no question that the territory in question in Iraq was the territory of Iraq, and not that of the UK. But, because of the control exercised by the UK armed forces within that territory, and over the victims, the question is whether that control gave rise to a de facto exercise of jurisdiction. And since the UK was effectively implementing its law and policy through its armed forces, it is difficult to argue that it was not thereby exercising jurisdiction in some form.
DeleteI like what Bonello says in his concurrence. I agree that the UK had control over the territory, but while I was reading the decision of the ECHR, it seemed like they were just trying to mold an exception to the territory principle in order to fit the facts. I agree with him that this makes them look like weak arguments. I like that he had a bright line rule set out: "if the violation depended upon the actions of a State or its agents, and if the State could punish the perpetrators and compensate the victims, then the State would be deemed to exercise jurisdiction for Convention purposes." This may just be my opinion, but I like bright line rules. It helps keep courts from making up their own crap which is what I feel they did in this case. I just want to reiterate that I do think the UK had control of the area; I'm not going to get into whether or not I feel their actions were justified. The two sides of the story are so far from each other and we don't have anything else to go on. All I'm saying is that the ECHR seemed to be grasping to explain how to make the UK not accountable. It seemed like they were just trying to cover their ass and started making things up. A bright line rule would have helped in cases like these...but I just like rules in general. They keep things neat and tidy.
ReplyDeleteAlso, on a side note, did anyone else find it insulting that the UK paid $2,500 for the death of the guy's brother? I'm sorry, but I was kind of angry when I read that. I really think that is insulting to the point where it's almost a joke. We pay nearly as much to attend a class here...a bit of an exaggeration, but I'm not too far off.
Also, I can't be bothered with figuring out how to do more than comment anonymously. I tried and failed. I'm leaving it at that.
-Sarah Dietz
I believe the ECHR reached the correct decision. The nature and purpose of the Human Rights Act is to provide remedies in the domestic law to those whose human rights are violated by UK public authority. Because the Act is designed to protect basic human rights, an exception should be made to the territorial principle. There are compelling reasons why countries should be held accountable for aggressive acts taken extraterritorially, especially when they violate human rights. However, to hold these countries accountable, there must be exceptions to the Objective Territorial Principle. I did not get the impression the ECHR was trying to create an exception simply to avoid applying this principle in this case. I think they approached the jurisdiction question using common sense (like Jenn pointed out) -- after reading the facts, it's difficult to deny whether the UK had control of the area.
ReplyDeleteStates have the power to affect people, property, and circumstances anywhere they exercise control. International law principles of jurisdiction are designed to regulate that power. So, unless jurisdiction can be established everywhere a state exercises control (extraterritorially), regulation will be severely limited.
Well, here's attempt number two to publish a comment.
ReplyDeleteI agreed in large part with Sarah's comment. It did feel as though the courts were bending the rules to suit the facts of the case and I also felt that the monetary amount the UK paid was terrifyingly low. Otherwise, peers have pretty much covered the rest from my point of view. I enjoyed reading the comments though:)