THE issue of the extraterritorial application of the European Convention on Human Rights is highly contentious. It revolves around the circumstances in which a person is “within [the] jurisdiction” of a state within the meaning of Article 1 ECHR, and therefore entitled to the protection afforded by the Convention. This has been the subject of several important cases before the European Court of Human Rights, which has produced a jurisprudence which is anything but consistent. UK courts grappled with it in several cases brought under the Human Rights Act 1998 by victims of human rights violations at the hands of UK troops in Iraq. Most notably, in R. (Al-Skeini) v. Secretary of State for Defence, [2007] UKHL 26, [2008] A.C. 153 the House of Lords held that the ECHR did apply to the killing of an Iraqi detained by British troops in a British military prison, on the basis of an analogy between a military prison and an embassy, but not to the killing of five individuals by British troops in UK-occupied Basra. As of the time of writing of this note, Al-Skeini is pending before the Grand Chamber of the European Court.

In R. (Smith) v. Oxford Assistant Deputy Coroner (Equality and Human Rights Commission intervening) [2010] UKSC 29, [2010] 3 W.L.R. 223, the Supreme Court was faced with a reverse Al-Skeini scenario, concerning a UK soldier who died in Iraq. An inquest was held, which established that he died from heatstroke. His mother, however, contended that her son's death warranted an Article 2 ECHR inquiry, which would not be limited only to the immediate cause of his death, but would also examine any possible systemic failures by the UK government – such as, for instance, not providing the soldiers with appropriate equipment or facilities – that could have led to her son's death. The question of extraterritorial application thus inevitably arose: was Private Smith protected by the ECHR while in Iraq, or not?

Crucially, Private Smith actually died on a UK military base. Per the UK government's concession in Al-Skeini and the House of Lords' reasoning in that case, that fact alone would have brought Private Smith within the UK's jurisdiction. In other words, under a spatial conception of Article 1 ECHR jurisdiction as areas or places under state effective overall control, Private Smith was within such an area and accordingly within the UK's jurisdiction. However, an issue was raised in the lower courts as to whether he would have been within the UK's jurisdiction even had he not died on the base, or in any area under the UK's effective control, but essentially under the same circumstances.

In the High Court, Collins J. thought that the answer to this question could only be in the affirmative. He employed a personal conception of jurisdiction as applying to UK soldiers abroad: “members of the armed forces remain at all times subject to the jurisdiction of the UK. It would obviously be wholly artificial to regard a soldier sent to fight in the territory of another state as subject to the jurisdiction of that state”, R. (Smith) v. Secretary of State for Defence [2008] EWHC 694 (Admin), [12].

Obviously, this question is of great practical relevance for UK military operations abroad. Many soldiers have lost their lives in areas outside UK effective control, and they would under Collins J's ruling all, at least in principle, be entitled to the protections of Article 2 ECHR. The Government therefore appealed his decision, arguing that Article 1 jurisdiction is exclusively territorial, and would apply only if a soldier died on a UK military base or in a UK military hospital (as was in fact the case in Smith) – in other words, in a place under UK jurisdiction.

The Court of Appeal affirmed the decision: R. (Smith) v. Secretary of State for Defence [2009] EWCA Civ 441. Like the High Court, the Court of Appeal adopted a personal conception of jurisdiction, based on the victim's status as a member of the armed forces. It quite rightly pointed out that it would be artificial and would defy common sense to say that a UK soldier was protected by the ECHR while on a UK base, but would lose all protection once he stepped outside it.

The Supreme Court disagreed. By a majority of six to three (Lady Hale and Lords Mance and Kerr dissenting), the justices found that mere membership of the armed forces was insufficient to establish a jurisdictional link for the purposes of Article 1 ECHR. The majority emphasized considerations of effectiveness, reasoning that it was simply inconceivable that ECHR state parties had assumed the obligation to conduct an Article 2-compliant investigation into the death of any of their soldiers abroad, nor have they behaved accordingly. See, e.g., Smith, at [54]–[57] (per Lord Phillips). They also stressed that there was no ECHR case law directly supporting the proposition that membership of the armed forces could form a basis for a personal conception Article 1 jurisdiction.

For their part, the minority judges thought it “commonsense” that UK soldiers were within the UK's jurisdiction wherever they might be, as the UK exercised complete authority over them. See, e.g., Smith, at [192] (per Lord Mance), [322] (per Lord Kerr).

Both the majority and the minority started from the assumption that Al-Skeini was correctly decided – an assumption that is in the present author's view unwarranted. But if this assumption is accepted, we need little probing to see what the consequences of the minority's reasoning in Smith would be. Imagine that one of the five applicant Iraqi citizens killed by UK troops on patrol in Al-Skeini was actually a UK soldier killed by friendly fire by UK troops on patrol. The minority reasoning in Smith would lead to the result that the soldier would be within the UK's jurisdiction and thus entitled to the protection of Article 2 ECHR, while the Iraqi applicants would not, even though all of them were killed in exactly the same way, in exactly the same place. This would, in short, lead to the open espousal of double standards; UK soldiers would have human rights protection against the UK, while Iraqis in the same situation would not. This is, in the present author's view, a result that can only be described as repugnant to the very idea of human rights.

While it may be artificial to say that a UK soldier would be protected by the ECHR while on a UK base, but not off it, this is no more artificial than saying that an Iraqi national is protected by the ECHR while on a UK base or while in UK custody, but not on the streets of Basra, as was the result in Al-Skeini. Thus, although the judgment of the majority in Smith denies the extraterritorial applicability of the ECHR to UK soldiers abroad on account of their status, this is the only result consistent with universality as the normative foundation of the ECHR and all other human rights treaties – unless, of course, it is Al-Skeini itself which was wrongly decided.