Kontic & Ors v The Ministry of Defence

Acts and omissions of KFOR falling within its security remit were attributable to the United Nations where KFOR operated under the effective control of the UN through the command structure established by UNSCR 1244. The claimants were not within the United Kingdom’s Article 1 jurisdiction merely because British forces were present in Kosovo, performed limited policing functions, or exercised general authority there.

Extra-territorial jurisdiction based on effective control of an area requires practical ability to secure the full package of Convention rights. Jurisdiction based on state-agent authority requires physical power and control over the individual. No operational or investigative duty arose where neither basis of jurisdiction existed. The Human Rights Act 1998 was not retrospective, and the pleaded Kosovo-law claims were barred by KFOR’s immunity from legal process.

The claimants were widows of Serb residents of Kosovo who had been abducted, killed or disappeared during the deployment of KFOR in June and July 1999. They alleged that British forces had failed to protect their relatives, investigate the incidents, preserve evidence and establish public safety.

The claims included alleged breaches of Articles 2, 3, 8 and 13 of the ECHR and claims under Kosovo law. The preliminary issues concerned attribution of KFOR’s conduct, Article 1 jurisdiction, protective and investigative duties, limitation and retrospectivity under the Human Rights Act 1998, customary international law, immunity and abuse of process.

1. Attribution. The court followed the approach in Behrami and Saramati v France and Norway (2007) 45 EHRR SE10. KFOR operated under the effective control of the United Nations for the relevant security functions. The subsequent decisions in Al-Jedda and Serdar Mohammed provided very weighty support for that conclusion. The pleaded acts and omissions were therefore attributable to the United Nations, not the United Kingdom. Dual attribution was unsupported by the leading authorities.
2. Article 1 jurisdiction. Effective control of an area requires a degree of control giving the state the practical ability to secure the full package of Convention rights. The mere presence of the only significant military force, or a numerical predominance of troops, is insufficient. KFOR could not have been expected to exercise that degree of control over central Kosovo within days of deployment.
3. State-agent authority and control requires physical power and control over the person concerned. The claimants’ relatives had never been detained, shot or otherwise physically controlled by British forces. Limited military-police investigations did not create jurisdiction.
4. Protective and investigative duties. Since there was no Article 1 jurisdiction, no operational protective duty arose under Articles 2 or 3. The court accepted that an investigative obligation requires a relevant trigger, following R (Long) v Secretary of State for Defence [2015] EWCA Civ 770, but found no jurisdictional basis for such a duty here. No continuing investigative duty arose 16 years later.
5. Human Rights Act and customary international law. The Human Rights Act 1998 was not retrospective. R v Secretary of State for the Home Department, ex parte Brind [1991] 1 AC 696 precluded incorporation of Convention obligations through customary international law before the Act’s commencement.
6. Immunity and abuse. The compensation scheme did not establish abuse of process because there was insufficient evidence that it operated as a practical remedy. However, the Joint Declaration and UNMIK Regulation 2000/47 gave KFOR immunity from legal process in respect of the defendant’s direct liability under Kosovo law. The claims were consequently barred to that extent.

The preliminary issues were decided in favour of the defendant. The claims failed.

First-instance decision. The judgment records earlier hearings at which preliminary issues were identified, but no lower-court judgment is stated.