Al-Saadoon & Ors v The Secretary of State for Defence & Ors

Extra-territorial jurisdiction under Article 1 of the European Convention on Human Rights is exceptional, but no additional high threshold applies once an established exception is engaged. State-agent jurisdiction may arise where forces exercise public powers normally exercised by the territorial government, assessed by the functions actually performed.

The use of lethal or potentially lethal force alone does not establish jurisdiction on the physical-power-and-control ground. There must be an element of control over the individual before the force is used, though formal detention is unnecessary.

There is no general investigative duty for an arguable breach of the Article 3 transfer obligation or Article 5. Article 3 may require investigation where the transferring state directed, instigated or was complicit in later ill-treatment. Article 5 requires investigation in enforced-disappearance cases. During international armed conflict, Article 5 must be accommodated with international humanitarian law.

This appeal concerned preliminary issues arising from judicial-review claims about the conduct of British forces in Iraq between 2003 and 2009. The claimants sought investigations into alleged human-rights violations. The court also considered the claims of Yunus Rahmatullah and Amanatullah Ali following their transfer from British to United States custody.

Leggatt J had determined the issues in [2015] EWHC 715 (Admin). The issues concerned extra-territorial jurisdiction under Article 1 of the European Convention on Human Rights, investigative duties under Articles 3 and 5, the effect of international humanitarian law on Article 5, and whether the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment created domestically enforceable rights.

The central question was when the United Kingdom’s Convention duties applied to Iraqi civilians affected by British military operations, detention, transfers and alleged ill-treatment.

1. Appeals allowed in part. The court disagreed with the judge’s conclusion that any extra-territorial use of physical force brought the victim within United Kingdom jurisdiction. In all other material respects, it upheld the judge’s conclusions. Permission to appeal on the UNCAT issues was refused.

2. Article 1 jurisdiction is primarily territorial. “Exceptional” means that the ordinary territorial presumption does not apply; it does not impose a further or especially high threshold. The governing question is whether the facts fall within an established Strasbourg exception. The court applied the state-agent authority-and-control framework stated in Al-Skeini, including the exercise of public powers and physical power and control.

3. The public-powers exception depends on the factual assumption and exercise of governmental authority, not on the legality of the operation or a formal status of occupation. It could apply during the invasion, occupation and post-occupation periods where British forces performed security, policing or military functions normally exercised by Iraqi governmental security forces. It did not apply merely because a military convoy accidentally caused a death.

4. The physical-power-and-control exception required more than lethal or potentially lethal force alone. Although formal detention was unnecessary, there had to be some prior element of control over the individual. The court held that this was the limit clearly established by Strasbourg authority and that any wider extension was for the Strasbourg court.

5. There was no duty to investigate every arguable breach of the Article 3 Soering-type duty not to transfer a person to a real risk of prohibited ill-treatment. Such a duty could arise where the transferring state directed, instigated, or was sufficiently complicit in the subsequent ill-treatment. Its content was fact-sensitive and required an effective and independent inquiry designed to establish the facts and identify criminal responsibility where appropriate.

6. Article 5 does not require investigation of every arguable unlawful detention. A duty arises in enforced-disappearance cases, including temporary enforced disappearance, because unacknowledged and concealed detention defeats ordinary safeguards and requires the state to account for the person. In an international armed conflict, Article 5 continues to apply but must be interpreted with international humanitarian law. Judicial control is not invariably required if the alternative review body provides sufficient impartiality and procedural fairness.

7. UNCAT had not been incorporated into domestic law apart from section 134 of the Criminal Justice Act 1988. The principle of legality could not convert its unincorporated treaty duties into enforceable domestic rights. Article 12 UNCAT did not in any event impose a broader investigative duty than Article 3.

• Court of Appeal (Civil Division): allowed the appeals only to the extent of rejecting jurisdiction based solely on lethal or potentially lethal force, and otherwise upheld the first-instance conclusions: [2016] EWCA Civ 811.
• High Court, Queen’s Bench Division, Administrative Court: Leggatt J determined the preliminary issues concerning Articles 1, 3 and 5 ECHR and UNCAT: [2015] EWHC 715 (Admin).