Al-Skeini and others (Respondents) v. Secretary of State for Defence (Appellant); Al Skeini and others (Appellants) v. Secretary of State for Defence (Respondent) (Consolidated Appeals)

Court	House of Lords, Great Britain (UK)
Case number	[2007] UKHL 26
Decision title	Opinions of the Lords of Appeal for Judgment in the Cause
Decision date	13 June 2007
Parties	Hazim Jum’aa Gatteh Al-Skeini Muhammad Abdul Ridha Salim Hannan Mahaibas Sadde Shmailawi Waleed Sayay Muzban Raid Hadi Sabir Al Musawi Baha Mousa Secretary of State for Defence
Categories	Torture
Keywords	Law of armed conflict, detention, torture, obligation to prosecute
Links	Opinions of the Lords of Appeal for Judgment in the Cause
Other countries involved	Iraq

Summary

The applicants were relatives of six Iraqi nationals who were killed by the British forces in Iraq in 2003. The applicants brought a claim against the Secretary of State because he refused to investigate the deaths and to provide redress to them as relatives of the deceased Iraqi’s. Their claim was dismissed on 13 June 2007 by the House of Lords. In dismissing the case, the House of Lords held that the crimes were committed outside the UK’s territory, and therefore, the Court did not have power to adjudicate (jurisdiction).

Procedural history

On 14 December 2004, in the first instance verdict, the Queen’s Bench found that the death of Baha Mousa, who died while in custody at a UK detention facility in Iraq, was within the jurisdiction of the UK. The Bench held that the deaths of five other Iraqi civilians who were killed by British soldiers in 2003, fell outside the UK’s jurisdiction.

The claimants appealed and the Secretary of State cross-appealed the decision. On 21 December 2005, the Court of Appeal dismissed both the appeal and the cross-appeal.

The first four applicants appealed and the Secretary of State cross‑appealed to the House of Lords.

Related developments

On 11 December 2007, the applicants filed an application to the European Court of Human Rights (ECtHR). They claimed that the UK failed to fulfil its procedural duty to carry out an effective investigation, and that it breached Article 2 of the European Convention for Human Rights (ECHR). On 7 July 2011, the ECtHR found that the UK had violated Article 2 of the ECHR in respect of the first, second, third, fourth and fifth applicant. The ECtHR further held that the human rights obligations of the UK are not limited to its territory but can exceptionally extend overseas to situations in which British officials exercise ‘control and authority’ over foreign nationals.

Legally relevant facts

The applicants who brought the case are relatives of six Iraqi nationals who were killed during the 2003 Iraq war. Five of the deceased Iraqi’s were allegedly killed by British troops in Basra, Iraq, and the sixth, Baha Mousa, was arrested and taken to a British detention facility where he was subsequently killed following severe mistreatment. The relatives of the six men applied to the High Court in London for a judicial review of the refusal of the Secretary of State for Defence to investigate the deaths and to provide redress.

The Court had to decide whether it could exercise jurisdiction over the killings since they took place outside of UK territory.

Core legal questions

Does the Human Rights Act (HRA) apply to acts done outside the territory of the UK?

Specific legal rules and provisions

Human Rights Act, 1998, United Kingdom:

Section 1(4) - Power of the Secretary of State to make amendments to the Act
Section 3 - Interpretation of legislation
Section 21(5) - Replacement of the death penalty by a liability to life imprisonment
Section 22(7) - Application of Section 21(5)
Section 22(6) - The Act extends to Northern Ireland

Convention for the Protection of Human Rights and Fundamental Freedoms, 1950, Council of Europe:

Article 1 - Scope of application
Article 17 - Prohibition of abuse of rights

Court's holding and analysis

The House of Lords first dealt with the question of whether the HRA applies to acts that took place outside UK territory. In answering this question, the House of Lords focused on the rights arising out of the HRA rather than on ECHR rights (para. 10).

The majority of the House of Lords held that ‘the extra-territorial scope of the HRA matched that of the Convention [ECHR]’, and therefore, the HRA applies whenever the UK had jurisdiction under Article 1 of the ECHR.

Lord Bingham of Cornhill, dissenting, held that the HRA has no extra-territorial application. Furthermore, he stated that the British forces could be held liable under the Service Discipline Acts or the International Criminal Court Act 2001, and that the Secretary of State can be a defendant in a tort action (paras. 26-27).

The majority applied the “effective control” test and, as a result, determined that the detention of Baha Mousa in a British detention facility in Iraq was within the UK’s jurisdiction. However, the House of Lords held that the deaths of the other five Iraqi nationals fell outside the UK’s jurisdiction since the UK did not exercise effective control over Basra, despite the fact that it was the occupying power in Southern Iraq. Hence, the House of Lords upheld the decision on jurisdiction of the Queen’s Bench in 2004 (paras. 81- 83).

Further analysis

T. Thienel, ‘The ECHR in Iraq. The Judgment of the House of Lords in R (Al-Skeini) v. Secretary of State for Defence’, Journal of International Criminal Justice, 2008, Vol. 6(1), pp. 115-128.

R. Wilde, ‘R (On the Application of Al-Skeini) V. Secretary of State for Defence (Redress Trust Intervening’, The American Journal of International Law, 2008, Vol. 102(3), pp. 628-634.

F. Messineo, ‘Things Could Only Get Better: Al-Jedda Beyond Behrami’, Military Law and the Law of War Review, 16 November 2011, Vol. 50(3), pp. 321-346.

F. Naert, ‘The European Court of Human Rights’. Al-Jedda and Al-Skeini Judgments: an Introduction and Some Reflections’, Military Law And The Law Of War Review, 2011, Vol. 50(3), pp. 315- 320.

J. Sinchak, ‘The Extraterritorial Application of Human Rights Treaties: Al-Skeini et al. v. United Kingdom (2011)’, Pace International Law Review, 2013, Vol. 3(12), pp. 416- 445.

M. Milanovic, ‘Applicability of the ECHR to British Soldiers in Iraq’, Cambridge Law Journal,3 February2011, Vol. 70, pp. 1-3.

B. Miltner, ‘Revisiting Extraterritoriality After Al-Skeini: The ECHR and its Lessons’, Michigan Journal of International Law, 21 August 2012, Vol. 33, pp. 693- 747.

S. Miko, ‘Al-Skeini v. United Kingdom and Extraterritorial Jurisdiction under the European Convention for Human Rights’, Boston College International and Comparative Law Review, 4 April 2013, Vol. 35(3), pp. 63-79.

Instruments cited

Human Rights Act, 1998, United Kingdom

Convention for the Protection of Human Rights and Fundamental Freedoms, 1950, Council of Europe

Additional materials

A.T. Williams, ‘The brutal death of Baha Mousa’, The Guardian, 3 May 2013.

Social media links

J. K. Cogan, ‘Judgment: Al-Skeini v. Secretary of State for Defence’, International Law Reporter, 14 June 2007.

A. Buyse, ‘Long Awaited Al-Skeini and Al-Jedda Judgments Delivered’, ECHR Blog, 7 July 2011.

M. Milanovic, ‘European Court Decides Al-Skeini and Al-Jedda’, EJIL Talk, 7 July 2011.

F. de Londras, ‘UK Troops in SE Iraq and the Extraterritorial Reach of the ECHR: Al Skeini & Ors v UK’, Human Rights in Ireland, 7 July 2011.

W. Bennett, ‘The Extraterritorial Effect of Human Rights: the ECHR’s Al-Skeini Decision’, Lawfare, 12 July 2011.

A. Wagner, ‘European Convention on Human Rights applied in Basrah, UK failed duties to Iraqi civilians’, UK Human Rights Blog, 7 July 2011.

M. Padron, ‘Al-Skeini may open door to more war claims’, UK Human Rights Blog, 15 August 2011.

R. Bartels, ‘Symposium on Al-Jedda and Al-Skeini cases in Military Law and the Law of War Review’, Armed Groups and International Law, 8 October 2012.

‘European Court Issues Landmark Judgment on Internment of Civilians by British Forces in Iraq’, Public Interest Lawyers.