Court Watch
civilians at the hands of British troops operating in Basra in 2003 during the United States-led in- vasion of Iraq. The United Kingdom was a great contributor to the U.S. efforts there, in particular by assuming authority and responsibility for the maintenance of security in South East Iraq.
Close relatives of the six deceased filed the appli- cation with the ECtHR, claiming deprivation of Ar- ticle 2 of the Convention (right to life). According to Court documents, “three of the victims were shot dead or shot and fatally wounded by British soldiers; one was shot and fatally wounded dur- ing an exchange of fire between a British patrol and unknown gunmen; one was beaten by British soldiers and then forced into a river, where he drowned; and one died at a British military base, with 93 injuries identified on his body.” The fami- lies of each victim separately sought redress and reparations, some through the filing of civil pro- ceedings against the Ministry of Defense, oth- ers through appeals for investigations and public inquiries.
Initial, internal investigations into the death of each victim were conducted, and in 2004 the UK Secretary of State for Defense determined that no further inquiries were warranted. The relatives (hereinafter “applicants”) contested his decision not to investigate before UK courts, which held (with the exception of one victim) that the appli- cants were not under UK jurisdiction because the deaths occurred outside the “control and author- ity” of the United Kingdom. The applicants there- fore brought their case to the ECtHR, where the main issues before the Court were (1) whether the Convention applied to the killing of civilians outside the UK (in Iraq), and (2) whether the United Kingdom had a duty to investigate those killings. The Court ultimately reached affirmative answers to both queries, finding the UK in viola- tion of the Convention.
In its opinion, the ECtHR acknowledged that the Convention usually applies to acts committed on the territory of a member state, as Article i of the
Convention requires member states to “secure to everyone within their jurisdiction” the rights set out in the Convention. However, the Court found that extraterritorial acts could fall within a state’s jurisdiction in “exceptional circumstances,” such as when a state exercises powers normally reserved for sovereigns or otherwise has effec- tive control over the territory of another state. This, said the Court, is precisely what happened in this case. The United Kingdom, together with the United States, was an occupying power in Iraq and in charge of maintaining security there. Because of this exercise of power and control, the UK was obliged to uphold its responsibilities under the Convention even in the territory of Iraq just as it does in the United Kingdom. The Court emphasizes that when a state’s armed forces occupy the territory of another state, it must be held accountable for any breach of the Conven- tion’s principles it commits there, because other- wise the population of the territory would suffer a vacuum of protection.
The ECtHR then went on to find that the UK had violated its duty to investigate under Article 2 of the Convention when it failed to conduct ad- equate investigations into the deaths of five of the victims named in this case. Article 2 protects the right to life. The ECtHR found that the inves- tigations conducted by the military were lacking; they did not satisfy the procedural duty in Article 2 and the investigations must be independent in order to be adequate. The investigation into the death of the sixth victim named in the case was sufficient, said the Court, because that investiga- tion was public.
The Court ordered the government of the United Kingdom to pay damages and court costs to five of the applicants. The implications of this case reach farther than vindication, however, and may complicate the overseas military operations of European nations.
* Submitted by Giuliana Quattrocchi ILSA Quarterly » volume 20 » issue 1 » October 2011 .
11
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64