Al-Skeini v United Kingdom (1) concerned the treatment of Iraqi civilians and detainees by UK soldiers during the occupation phase of the Iraq conflict. The case highlights the impact of human rights law, in particular the Convention for the Protection of Human Rights and Fundamental Freedoms (2) ('ECHR') and Human Rights Act 1998 (UK) (3) ('Human Rights Act'), on the military. The shooting of Iraqi civilians in five of the six matters before the Court was held by three tiers of the UK civil courts to be outside the ECHR's jurisdiction and therefore did not fall under the obligations of the UK in Iraq in relation to actions by its soldiers. The UK courts adopted this approach after interpreting and following the Grand Chamber of the European Court of Human Rights decision in Bankovic v Belgium. (4)
On this basis the House of Lords denied the remedy sought by the families of the Iraqi civilians shot by UK soldiers in the occupation zone. It suggested that the appropriate law was the military discipline law and international humanitarian law. Yet, of the five matters considered in R (Al-Skeini) v Secretary of State fix Defence, (5) only the sixth matter led to a court-martial heating. The other five matters had been considered by the commanding officer, who held the ultimate power to decide to take action. In each of these matters the commanding officer decided not to court-martial any of the soldiers involved. (6)
Only in regard to the sixth matter, the death of Baha Mousa while detained by UK soldiers on a UK army base in Iraq, was a court-martial hearing held. (7) No convictions were made, although a guilty plea was entered. A very limited application of the ECHR was accepted in relation to this one matter as it occurred on a UK military base and was accordingly found to fall within UK jurisdiction for the purposes of the Haman Rights Act. As such, an independent public investigation was required pursuant to art 2 of the ECHR. This decision meant that the government was required to hold an inquiry regarding the incident. (8) Six Iraqi nationals (the 'applicants') (9) lodged an application on 11 December 2007 under art 34 of the ECHR against the UK in the Grand Chamber of the European Court of Human Rights. (10) It was accepted that Iraq was under occupation from 1 May 2003 to 28 June 2004 by the UK and the US as a result of major combat operations that had taken place between 20 March and 1 May 2003. The deaths of all of the applicants' relatives had occurred during the occupation phase at various locations within Iraq.
II The Decision
On 7 July 2011, the European Court of Human Rights handed down a unanimous decision of 18 judges (11) in Al-Skeini, (12) which has been described as 'the case of the century'. (13) Deciding on the contentious issue of the meaning of the term 'jurisdiction' within art 1 of the ECHR when it comes to extraterritorial application of the ECHR, the Court deliberated in private for longer than most cases on 9 and 16 June 2010 and 15 June 2011. The Court decided that the applicants, all relatives of the deceased Iraqi citizens, fell within the jurisdiction of the respondent state, the UK. The Court further held that the procedural obligation in ECHR art 2 requiring an 'adequate and effective investigation' into an individual's death had not occurred. In relation to the sixth applicant's (Baha Mousa's) death, it was accepted that a public inquiry (14) had been held in the UK that had satisfied the art 2 obligation. Compensation was awarded to each of the first five applicants to the full amount claimed in order, to acknowledge the distress caused by the failure to fully and independently investigate the deaths of their relatives. (15)
In reaching its decision on the facts, the Grand Chamber noted that the Coalitional Provisional Authority ('CPA') was created by the US and the UK and was temporarily to exercise powers of government, in particular by providing security and maintaining civil law and order. …