Al-Saadoon and Others v. Secretary of State for Defence

Abstract

Treaties — Human rights treaties — Application — Scope — European Convention on Human Rights, 1950 — Article 1 — Duty of parties to secure rights and freedoms under European Convention to persons within their jurisdiction — Extent of jurisdiction — Claimants alleging ill-treatment and unlawful detention during British military involvement in Iraq between 2003 and 2009 — Whether Article 1 of European Convention applicable in test cases — Strasbourg jurisprudence — Banković — Concept of jurisdiction primarily territorial — Extraterritorial jurisdiction in exceptional cases only — State agent authority and control — Effective control over an area — Convention legal space (espace juridique) — Al-Skeini — Widening of exceptional categories — Division and tailoring of Convention rights — Exceptional category of State agent authority and control applicable in present case — Exercise of public powers — Whether United Kingdom exercising authority and control by virtue of exercising public powers normally exercised by Iraqi Government — Whether conditions for occupation met — Case-by-case factual analysis — Exercise of physical power and control of individuals — Scope — Whether requiring greater degree of power and control than that represented by use of lethal or potentially lethal force alone — Whether those claimants transferred into custody of United States within jurisdiction of United Kingdom for purpose of Article 1 of European Convention — Whether and to what extent European Convention applying to British armed forces in Iraq — Whether United Kingdom having duty to investigate alleged human rights violations — Whether United Kingdom having jurisdiction for purpose of Article 1 of European Convention

Relationship of international law and municipal law — Treaties — European Convention on Human Rights, 1950 — Article 1 — Scope of application — United Kingdom courts to construe reach of Article 1 in accordance with Strasbourg jurisprudence — Identification of underlying principles of Strasbourg jurisprudence — Whether United Kingdom having duty to investigate alleged human rights violations — Whether United Kingdom having jurisdiction for purpose of Article 1

Human rights — Treaties — European Convention on Human Rights, 1950 — Article 3 — Prohibition of torture and inhuman or degrading treatment — Investigative obligations — Whether and in what circumstances investigative obligation arising in Soering-type cases — Whether adjectival duty on Contracting State to investigate allegations of breach of Soering duty after the event — Complaint that claimants suffering serious ill-treatment after having been handed over into United States custody — Whether requiring investigation under Article 3 — Whether factual basis for arguable claim that British forces complicit in ill-treatment — Extent to which investigative obligation arising under Article 3 in respect of handover cases

Human rights — Treaties — European Convention on Human Rights, 1950 — Article 5 — Right to liberty — Investigative obligations — Arbitrary detention — Whether investigative obligation arising in all cases of detention arguably in violation of Article 5 — Article 5 requiring Contracting States’ authorities to investigate an arguable claim of enforced disappearance — Whether duty extending to detention without judicial scrutiny or control, even if detention not secret or unacknowledged — Effect of international humanitarian law on Article 5 — Whether Article 5 modified or displaced by international humanitarian law during international armed conflict — Extent to which investigative obligation arising in respect of cases within Article 5

Treaties — Interpretation — European Convention on Human Rights, 1950, Article 5 — Extent of obligations under Article 5 — Vienna Convention on the Law of Treaties, 1969, Article 31(3)(c) — Applicable rules of international law — 1992 UN Declaration on the Protection of All Persons from Enforced Disappearance — Council of Europe Resolution 1463 of 3 October 2005 — International Convention for the Protection of All Persons from Enforced Disappearance, 2006 — Strasbourg jurisprudence — Requirement under Article 5 that Contracting States’ authorities investigate arguable claim of enforced disappearance — Whether duty to extend to detention without judicial scrutiny or control, even if detention not secret or unacknowledged

Treaties — Application — United Nations Convention against Torture, 1984 (“UNCAT”) — Obligations of United Kingdom — Whether UNCAT provisions giving rise to domestically enforceable legal rights — As a treaty — On basis of customary international law — European Convention on Human Rights to be interpreted in harmony with rules of international law of which it forms part — Whether broader investigative duty imposed by Article 12 of UNCAT — Consideration of United Kingdom’s compliance with obligations under Articles 10 and 11 of UNCAT — Whether appropriate in context of investigating circumstances where duty to investigate allegation of torture or serious mistreatment — Whether UNCAT having any impact on investigative duties under Articles 2 and 3 of European Convention

Relationship of international law and municipal law — Treaties — Application — United Nations Convention against Torture, 1984 — Whether UNCAT provisions giving rise to domestically enforceable legal rights — Whether implemented into United Kingdom law — United Kingdom only implementing Article 4 of UNCAT in Section 134 of Criminal Justice Act — Whether principle of legality applicable — Whether rights in question part of domestic law — Human rights protections — Implementation of European Convention on Human Rights, 1950 — Human Rights Act 1998

War and armed conflict — British military involvement in Iraq between 2003 and 2009 — Invasion — Occupation — Post-occupation — Alleged human rights violations against Iraqi civilians by British soldiers in Iraq — European Convention on Human Rights, 1950 — Application — International humanitarian law — Whether displacing or modifying European Convention — Whether both applying to detention issues — The law of England