HOW far do obligations to respect human rights travel? Do British troops using military force outside Europe need to comply with the European Convention on Human Rights? And if so, do these obligations persist even when British troops are using force alongside non-European countries during military operations authorized by the United Nations? Two ground-breaking judgments by the Grand Chamber of the European Court of Human Rights addressed these questions in July 2011: Al-Skeini v United Kingdom (Application no. 55721/07) (2011) 53 E.H.R.R. 18 and Al-Jedda v United Kingdom (Application no. 27021/08) (2011) 53 E.H.R.R. 23. The applicants in Al-Skeini were relatives of Iraqi citizens killed by British soldiers during the post-2003 occupation of Iraq: three were shot at by British soldiers, one died during a cross-fire between British soldiers and “insurgents”, another was allegedly drowned in a river after being arrested, and the sixth died of torture while in detention. They claimed that the UK had breached its obligation to carry out an independent investigation on their relatives' death under Article 2 ECHR. The applicant in Al-Jedda was detained by British forces in Basrah for unspecified “imperative reasons of security” between October 2004 and December 2007. He was not charged with any crime, and he claimed a violation of his Article 5 ECHR right not to be arbitrarily imprisoned.

Did any of these events constitute an internationally wrongful act? To answer this question affirmatively, the ECtHR needed to establish two things: first, that the acts or omissions considered had indeed been carried out by the UK; second, that such conduct was in breach of the obligations owed by the UK under the ECHR.

The first question was one of attribution of conduct. Its solution should have been straightforward. British troops are State “organs” under Article 4 of the International Law Commission's Articles on the Responsibility of States for Internationally Wrongful Acts of 2001, UN Doc. A/RES/56/83 (ARSIWA). All British soldiers' on-duty acts or omissions are thus attributable to the United Kingdom, even if they act ultra vires. If a British soldier shoots, detains or tortures someone, the United Kingdom is also deemed to be shooting, detaining or torturing someone. The point is so obvious that it was taken for granted in all domestic stages of the proceedings in Al-Skeini (see R. (Al-Skeini) v Secretary of State for Defence [2007] UKHL 26, [2008] 1 A.C. 153). Indeed, the question only arose when the Al-Jedda case reached the House of Lords (R. (Al-Jedda) v Secretary of State for Defence [2007] UKHL 58, [2008] 1 A.C. 332) because the British government sought to rely on the notorious ECtHR Grand Chamber admissibility decision in Behrami and Saramati v France, Germany and Norway (Application number 71412/01 and 78166/01) (2007) 45 E.H.R.R. SE10. In Behrami, the ECtHR had found that it had no jurisdiction ratione personae to adjudicate upon the conduct of European soldiers belonging to K-FOR – the Kosovo peace enforcement operation authorized by UNSCR 1244 (1999) – because K-FOR's conduct should be attributed exclusively to the UN by virtue of the “ultimate authority and control” of the UN Security Council over the operation. The British Government claimed that the same reasoning would apply to British soldiers acting as members of the Multinational Force in Iraq (MNF-I), an operation authorized by UNSCR 1511 (2003). Therefore, the ECtHR would lack jurisdiction ratione personae in Al-Jedda too: the conduct of British soldiers would be attributed exclusively to the UN, not the UK. However, most legal commentators and the UN Secretariat strongly criticised Behrami because the “ultimate authority and control” test was wrong and led to absurd results. Attributing K-FOR (or MNF-I) conduct exclusively to the UN ran counter to the over sixty years of UN practice accepting responsibility only for UN-run peacekeeping, not for UN-authorized (but member-states-run) peace enforcement (see UN Doc. A/64/10, 67). When the question was decided upon by the House of Lords, the late Lord Bingham's majority opinion succeeded in setting Behrami aside by (unpersuasively) distinguishing it on the facts rather than openly criticizing it. In July 2011, the ECtHR in Al-Jedda was grateful for this rhetorical accomplishment and happily endorsed it, by concluding that whatever the correct test of “control”, the UN in fact exercised no meaningful control over the MNF-I, so the detention of Al-Jedda was indeed only attributable to the UK (Al-Jedda, at [84]). Likewise, when the British Government tried to advance the same Behrami argument in Al-Skeini, the ECtHR declared that it was estopped from doing so (Al-Skeini, at [97]–[100]). In sum, in both Al-Jedda and Al-Skeini the ECtHR found that the conduct under consideration was attributable to the United Kingdom.

This led to the second question: what was the territorial and hierarchical scope of ECHR obligations? Could Articles 2 and 5 ECHR apply in Iraq? And, as to Al-Jedda, did Article 5 ECHR continue to apply even if the MNF-I was authorized by the UN Security Council to intern people? Let us address the question of extra-territoriality first. How far do ECHR obligations travel? Article 1 ECHR defines the scope of Convention obligations by affirming that “the High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms” of the Convention (including Articles 2 and 5). According to Judge Bonello's concurring opinion in Al-Skeini, the case law on Article 1 had so far “enshrined everything and the opposite of everything”. Indeed, Al-Skeini is a landmark judgment because it sought to clarify the Court's approach on extra-territoriality previously expounded upon in Banković v Belgium (Application no. 52207/99) (2007) 44 E.H.R.R. SE5 and many other cases conflicting therewith. In the Court's view, the term “jurisdiction” must be interpreted as a “primarily territorial” concept. States are generally presumed to exercise jurisdiction “throughout [their] territory”, while extra-territorial exercises of power or authority are “exceptional” (Al-Skeini, at [131]). Among such exceptions, the Court first identified two uncontroversial cases: the acts of diplomatic and consular agents and the acts of foreign State organs invited by a host State to exercise some of its public powers (at [134]–[135]). The Court then moved on to consider two more complex strands of extra-territorial exercises of jurisdiction: control over persons and control over foreign territory. First, whenever there is an “exercise of physical power and control over [a] person” (at [136]), i.e. “control and authority” over him or her, a State is under an obligation to respect all those ECHR rights “that are relevant to the situation of that individual” (Al-Skeini, at [137], explicitly overruling Banković, at [75]). Second, whenever a State exercises “effective control” over foreign territory “as a consequence of lawful or unlawful military action”, it is bound by the “obligation to secure, in such an area, the rights and freedoms set out in the Convention” irrespective of whether such control is “exercised directly, through the Contracting state's own armed forces, or through a subordinate local administration” Al-Skeini, at [138]; see also Loizidou v Turkey (Application no. 15318/89) (1997) 23 E.H.R.R. 513, at [52]. In sum, and contrary to some interpretations of Banković, ECHR obligations do travel outside the “legal space” of Europe (Al-Skeini, at [141]–[142]). Applying these principles to the facts in Al-Skeini, the ECtHR found that a “jurisdictional link” under Article 1 ECHR existed between the six victims and the UK, because of the “authority and control” exercised over them (at [149]–[150]). This was basically the end of the matter: the Court then found that the UK had violated some of the obligations arising from Article 2 ECHR with respect to five of the six applicants (at [168]–[177]).

In Al-Jedda, the question of jurisdiction was similarly resolved on the basis of such personal “authority and control” (Al-Jedda, at [85]), but a further complicating element arose. The Security Council had authorized the MNF-I to operate in Iraq and detain people for imperative reasons of security. According to the British Government, this was an “obligation” to detain, not a discretionary power, and as such it displaced Article 5 ECHR by virtue of Articles 103 and 25 of the UN Charter, which establish the hierarchic superiority of Charter obligations (and Security Council resolutions) over other rules of international law (Al-Jedda, at [87]–[92]). However, according to the ECtHR, and contrary to what the majority of the House of Lords had held in 2007, there was no such conflict of norms: internment was indeed one of the available options, but “in the absence of clear provision to the contrary, the presumption must be that the Security Council intended states within the [MNF-I] to contribute towards the maintenance of security in Iraq while complying with their obligations under international human rights law” (at [105]). These obligations included Article 5 ECHR, which the UK had thus violated.

In his concurring opinion in Al-Skeini, Judge Bonello stigmatized the British Government's approach to extra-territorial human rights obligations: “In substance the United Kingdom is arguing, sadly, I believe, that it ratified the Convention with the deliberate intent of regulating the conduct of its armed forces according to latitude: gentlemen at home, hoodlums elsewhere.” In July 2011, the contrary message from Strasbourg appeared clear: European States must comply with their human rights obligations everywhere they actually exercise power over persons or territory.