Al-Saadoon & Ors v Secretary of State for Defence

Article 1 of the European Convention applies extraterritorially where state agents exercise public powers or physical power and control over an individual. The test is factual and does not depend on the legality of the state’s conduct. Shooting an individual is sufficient physical control, even without prior detention. The investigative duty under articles 2 and 3 is ancillary to an arguable substantive breach. It does not extend to every arguable breach of the non-refoulement obligation or article 5. It may arise in handover cases involving alleged complicity in torture or serious ill-treatment, and in cases of enforced disappearance. Article 5 remains applicable during international armed conflict, but must be interpreted in the light of international humanitarian law. UNCAT creates no directly enforceable domestic rights.

The judgment determined eleven preliminary issues arising from numerous judicial review claims concerning alleged deaths, ill-treatment and detention by British forces in Iraq between 2003 and 2009. The claims sought investigation of alleged breaches of articles 2, 3 and 5 of the Convention, including cases involving handover to United States or Iraqi authorities.

The court considered jurisdiction during the invasion, occupation and post-occupation periods, the scope of investigative duties, the effect of international humanitarian law, and whether UNCAT or customary international law created additional domestic rights.

1. Article 1 jurisdiction. Jurisdiction is established by the factual exercise of authority and control. It may arise through the exercise of public powers normally exercised by the territorial government or through physical power and control over an individual. The latter principle applies to shooting, whether or not the individual was first detained. It also covers persons receiving medical treatment under the physical control of British forces. It does not extend to an accidental road-traffic death merely because British soldiers were present and on duty.
2. Article 3 handover cases. There is no general investigative duty in every case alleging breach of the non-refoulement obligation. The obligation is concerned with exposure to risk at the time of transfer and is distinct from an investigation into subsequent mistreatment. An investigative duty may arise where British agents allegedly directed or procured the mistreatment, or were complicit in torture or serious ill-treatment by the receiving state. Any such investigation must be independent and effective.
3. Article 5. Article 5 does not require investigation of every arguable unlawful detention. Ordinary disputes about legality are addressed through the remedies in article 5(4) and (5). An investigative duty arises where there is an arguable case of enforced disappearance, involving concealed or unacknowledged detention and concealment of the person’s fate or whereabouts. The investigation must be capable of uncovering the facts and identifying and punishing those responsible.
4. International humanitarian law and UNCAT. Article 5 is not displaced during international armed conflict, but is modified by the requirement to interpret it consistently with applicable humanitarian law. UNCAT is not directly enforceable in domestic law, either as a treaty or through customary international law. It remains relevant to Convention interpretation and may form part of the background to an effective investigation into serious ill-treatment.
5. Arguable breach. The investigative duty is ancillary to the substantive rights in articles 2 and 3 and cannot arise without an arguable substantive breach. The preliminary issues were answered accordingly in the court’s conclusions.

The judgment was a first-instance determination of preliminary issues in judicial review proceedings. It records earlier decisions concerning related proceedings, including R (Al-Skeini) v Secretary of State for Defence, [2004] EWHC 2911 (Admin) , and the subsequent appellate decisions described in the judgment.