Judicial enforcement of human rights violations during foreign intervention was expanded by two Grand Chamber decisions handed down by the European Court of Human Rights (ECtHR) in July 2011. Both cases arise from the war in Iraq, where the human rights community has voiced frustration over perceived violations by occupying powers.
In Al-Skeini and others v. the United Kingdom, the ECtHR expanded its extraterritorial jurisdiction to apply the European Convention on Human Rights (ECHR) outside the borders of its member states. Previous jurisprudence had limited such application to nations over which a European state controls—a standard of occupation much higher than the UK’s involvement in Iraq. British troops joined the initial invasion in 2003, and the United Kingdom (UK) was responsible for security in the region of southern Iraq in which the six Iraqi nationals whose families filed suit were killed in 2003. The families claim British soldiers were responsible and brought the ECtHR suit over allegedly inadequate investigations by the British government into the deaths. The ECtHR rejected the UK’s claim that the ECHR did not apply, noting that there still existed restrictions on application outside of borders, but that under the special circumstance where a country “exercised public powers on the territory of another State,” jurisdiction could be established by control over that territory’s people. Specifically, the ECtHR’s conclusion established jurisdiction within ECHR Article 1, the obligation to protect. Once that bar was met, the ECtHR found a violation of Article 2—the right to life—for the failure to investigate.
In a separate decision issued the same day, the ECtHR further expanded the court’s jurisdiction in Iraq to cover a member state’s detention of a man, without trial, for suspected terrorist recruitment. In Al-Jedda v. the United Kingdom, an Iraqi man with British citizenship was held in a UK-controlled detention facility in Iraq for three years before being stripped of his citizenship but released without charges. The ECtHR found the British government in violation of ECHR Article 5.1—the right to liberty and security—after the court dismissed the claim that UN Security Council Resolution 1546, which authorized the war, superseded the ECHR and bound the British government to reject the convention. The court did not completely rule out the possibility that a UN resolution could supersede application of the ECHR, but limited it to instances where the resolution was specific.
The decision in Al-Skeini has been heralded as a landmark case by human rights groups, who see it as facilitating the universal application of international human rights law. “The European Court has spoken clearly—Britain can’t claim its soldiers have no human rights duties once they are in another country,” said Clive Baldwin, senior legal advisor to Human Rights Watch. “The British government should now finally accept human rights law applies to its acts anywhere in the world and ensure a full and independent inquiry into all these killings.” The decision raises questions about the extraterritorial jurisdiction of other human rights institutions as applied to Iraq and the so-called global war on terror. Serious allegations of violations—for instance, against the United States Justice Department’s decision not to investigate acts of torture by CIA interrogators—are often brought by victims or human rights groups that have been left with little judicial recourse. Although the ECtHR decision would not apply to the United States, if such allegations were to implicate a European citizen, there could be a method for victims or rights advocates to seek redress after the court’s decisions in Al-Skeini and Al-Jedda.
Additional cases concerning the UK’s involvement in Iraq could follow at the ECtHR, or domestic courts may begin to adhere to the new precedent . Extraterritorial jurisdiction could also become relevant with Europe’s lead in supporting the Arab Spring, especially Libya. Under current circumstances, it is unlikely the ECtHR would rule that any member state meets the jurisdictional standards in Libya unless involvement expands. However, as member states consider the nature of their involvement or occupation abroad, the Al-Skeini and Al-Jedda decisions could, taken together, guide military policy and influence the legal approach of human rights groups to alleged violations.