Al Skeini & Ors, R (on the application of) v Secretary of State for Defence

This Divisional Court considered two preliminary issues arising from claims by relatives of six Iraqi deceased: (1) whether the European Convention on Human Rights (the Convention) and the Human Rights Act 1998 (the Act) applied (i.e. whether the United Kingdom had "jurisdiction" under article 1 of the Convention or under the Act) to the deaths that occurred in Iraq between 1 May 2003 and 28 June 2004; and (2) whether, if the Convention/Act applied, the United Kingdom had complied with the procedural investigative duties implied by articles 2 (right to life) and 3 (prohibition of torture) of the Convention.

Key legal principles and holdings:

• The Court held that article 1 of the Convention is essentially territorial in character, a conclusion reached by careful analysis of Strasbourg jurisprudence (including Bankovic, Loizidou and related authorities) and international law. Exceptions to territoriality exist but are narrowly drawn (for example, effective control of an area in the context of territories within the Convention legal space, and certain well‑established extra‑territorial situations such as consular premises, ships and aircraft).
• The Court decided that the United Kingdom did not, by virtue of the occupation in southern Iraqi provinces, extend article 1 jurisdiction so as to include deaths occurring during military operations in the field. Accordingly the first five claimants’ cases (shootings in the field) were outside United Kingdom jurisdiction and therefore outside the scope of the Convention and of the Act.
• The Court held that the death of Baha Mousa (who died while in British military custody in a British‑operated prison facility in Iraq) fell within the narrow extra‑territorial exception: a prison operated by the United Kingdom in foreign territory with the consent of local authorities can bring the deceased within the United Kingdom’s jurisdiction for Convention/HRA purposes. The Court therefore considered the procedural investigative obligations under articles 2 and 3 in that case.
• On the facts relating to Baha Mousa, the Court concluded the enquiries and investigations carried out were inadequate to satisfy the procedural requirements of articles 2 and 3.

This judgment addresses the preliminary legal questions in a judicial review challenge by relatives of six Iraqis killed during the United Kingdom’s involvement in Iraq in the post‑major‑combat period (1 May 2003–28 June 2004). The claimants sought declarations and remedies under the Human Rights Act 1998, saying the Secretary of State for Defence had failed to conduct adequate independent inquiries and had breached the procedural obligations deriving from article 2 (and, in the custodial death, article 3) of the European Convention on Human Rights.

Background and procedural posture:

• The claims were narrowed by agreement to six illustrative cases. The first five concerned deaths allegedly resulting from use of lethal force in the course of military operations; the sixth concerned detention, alleged ill‑treatment and subsequent death while in British custody (Baha Mousa).
• On 11 May 2004 Collins J gave permission for a determination of two preliminary issues (whether the Convention and the HRA applied; and whether the procedural requirement under article 2 had been breached) and stayed the remainder of the proceedings pending those determinations.

Issues framed by the Court:

1. Does article 1 of the Convention ("within their jurisdiction") and the Act apply to the circumstances alleged, i.e. did the United Kingdom have jurisdiction over the deaths?
2. If the Convention/Act apply, were the procedural investigative obligations under articles 2 and 3 complied with?

Court’s reasoning on jurisdiction:

• The Court analysed Strasbourg case‑law and international law. It emphasised the essentially territorial character of article 1, recognising limited exceptions: (a) where a State exercises effective control of an area (as found by Strasbourg in cases concerning northern Cyprus and similar fact patterns), and (b) limited personal/functional jurisdictional situations (eg activities on board a State’s vessels, certain consular/diplomatic contexts, and prisons or other outposts of the State’s authority abroad where the State exercises authority over persons).
• The Court concluded that the "effective control of an area" doctrine has been applied by Strasbourg within the Convention’s regional legal space (i.e. territories which, but for special circumstances, are part of the Convention legal order). The Court declined to extend that doctrine generally to territories outside the Convention legal space (such as Iraq) where doing so would undermine article 56 and the Convention’s territorial framework.
• Applying these principles to the six illustrative cases, the Court held that the first five shootings in the field did not fall within United Kingdom jurisdiction under article 1. The sixth case (death in British custody at a British‑operated prison) did fall within the narrow extra‑territorial exception and so came within the HRA/Convention.

Court’s reasoning on the procedural obligation:

• Where deaths arise in circumstances involving State agents, articles 2 and 3 imply a duty to undertake an effective, independent and timely investigation with appropriate public scrutiny and involvement of next of kin. The burden to account is particularly stringent where death occurs in State custody.
• On the facts of Baha Mousa, the Court held that the enquiries that had been undertaken (SIB investigation, post‑mortem under difficult local conditions, delay and lack of public reporting or meaningful engagement with family) were not adequate to satisfy the procedural obligations of articles 2 and 3.

The Court therefore concluded that the claims of the first five claimants failed for want of jurisdiction, but that the claim in respect of Baha Mousa was capable of falling within the Convention and the Act and that the State had failed in its procedural obligations in that case.

The court held that the Convention and the Human Rights Act 1998 are essentially territorial in scope. The first five claims (deaths in the field) were outside United Kingdom jurisdiction and are dismissed. The sixth claim (death in British custody – Baha Mousa) falls within United Kingdom jurisdiction because he died in a British‑operated prison in Iraq; on the facts the investigatory inquiries were inadequate and the procedural obligations of articles 2 and 3 were breached.