JURIST Guest Columnist David Feldman of the University of Cambridge Faculty of Law says that there is a growing trend in the UK to hold government actors responsible for violations of international law in the national courts, which should result in more transparent and open government policies…
One of the most surprising consequences in the UK of the invasion of Iraq in 2003 has been the spate of litigation concerning both the treatment which UK armed forces meted out to Iraqi civilians and detainees and the adequacy of steps taken by UK authorities to protect members of the armed forces against military and natural hazards during their deployment in Iraq. The judgment of the Court of Appeal of England and Wales in R. (on the application of Mousa) v. Secretary of State for Defence and another concerned the UK’s obligations under Article 2 (right to life) and Article 3 (right to be free of torture) of the Council of Europe’s Convention on the Protection of Human Rights and Fundamental Freedoms, as interpreted by the European Court of Human Rights (ECHR), toward Iraqis detained by British forces in Iraq. Since 2000, obligations arising from these rights have been directly justiciable in national courts: people claiming to be victims of Convention violations by UK public authorities have been able to claim a full range of remedies under the Human Rights Act 1998 (HRA). This is subject to the proviso that a public authority does not act unlawfully in violating a Convention right if its action is required by an Act of Parliament, because of the UK’s constitutional principle of the legislative sovereignty of Parliament, embodied in section 6 of the HRA.
One of these obligations is to conduct an independent, effective and transparent inquiry into credible allegations of unlawful killing, torture and inhuman or degrading treatment or punishment, particularly where agents of the state might have been perpetrators. As a result of the HRA, section 6(1), this obligation is enforceable in domestic law in the UK against public authorities responsible for investigating deaths and injuries.
In a case concerning the killing of a prisoner by his cellmate in a UK prison, R. (on the application of Amin) v. Secretary of State for the Home Department, Lord Bingham described the purpose of the investigative obligation as follows:
[T]o ensure so far as possible that the full facts are brought to light; that culpable and discreditable conduct is exposed and brought to public notice; that suspicion of deliberate wrongdoing (if unjustified) is allayed; that dangerous practices and procedures are rectified; and that those who have lost their relative may at least have the satisfaction of knowing that lessons learned from his death may save the lives of others.
In Jordan v. United Kingdom, the ECHR explained the notion of “independence” for this purpose as follows:
[I]t may generally be regarded as necessary for the persons responsible for and carrying out the investigations to be independent from those implicated in the events. This means not only a lack of hierarchical or institutional connection but also a practical independence.
In Mousa, the English Court of Appeal decided that an inquiry into the death and mistreatment of people detained by UK personnel in Iraq, conducted by a team which included military investigators, was not sufficiently independent to satisfy the UK’s obligations. The Secretary of State’s decision that such an inquiry would be sufficient was accordingly unlawful.
The judgment illustrates a growing trend in which courts in the UK have applied ordinary, legal standards to the UK’s military activities abroad and to executive policymaking at home, even if it is concerned with foreign policy or military or intelligence matters. Judges have felt obliged to do this by longstanding principles of domestic law concerning, for example, the duty of a third party who has been involved in another party’s allegedly unlawful conduct to disclose related information to the victim of that conduct, so that the victim can take remedial action or defend herself against a threat of legal action (criminal or civil) brought by the perpetrator, or rules of civil procedure specifying the requirements of a fair trial. Judges have become less willing to exempt governmental bodies from the operation of these rules and have applied them even in cases involving high state policy, subject to the determination of any claim to public interest immunity on well-established principles as seen in R. (on the application of Binyam Mohamed) v. Secretary of State for Foreign and Commonwealth Affairs and others and Al-Rawi v. Security Service (Liberty intervening). This trend has been reinforced by the HRA, which provides judges with additional obligations and mechanisms for complying with them when Convention rights are at issue.
The Constitutional and Legal Framework for the Judgment
The UK has been a party to the Convention for more than 60 years. Since 1966 people claiming to be victims of rights violations under the Convention have been able to seek authoritative judgments against the UK from the ECHR. Since 2000, as noted above, some of the Convention rights have been directly enforceable in the UK’s courts against public authorities.
When UK armed forces took part in the invasion of Iraq and then in operations to reestablish and maintain security and public order there, they detained and sometimes mistreated and killed Iraqi civilians and others, and a significant number of UK service personnel also died as a result of military action or accidents. Several of the victims brought claims in British courts arguing that their Convention rights had been violated.
These claims raised several difficult legal issues. All of the claims required courts to decide the following questions:
- When, if ever, do the obligations of public authorities under the HRA apply to agents of the state operating outside the UK’s territory and on the territory of another sovereign state which is not a party to the ECHR?
- If Convention rights applied in Iraq, did resolutions of the UN Security Council (made to preserve international peace and security under Chapter VII of the UN Charter) authorizing the Multi-National Force (MNF) in Iraq to take measures to preserve order and security, override those rights?
- If rights were in principle capable of being asserted by people in Iraq, were the acts of UK personnel attributable to the UK, or did UN Security Council resolutions make the UN responsible for the conduct of the MNF so that the acts were attributable to the UN, which is not a party to the ECHR? The ECHR has held that conduct of troops would be attributable to the UN, rather than each individual state, when troops were part of a force acting under the authorization and direction of the UN. This was not true, however, of the MNF in Iraq, at least at the relevant times.
- Was legal liability of UK troops in Iraq governed by Iraqi law or English law?
Additional questions that arose when the claimants were members of the UK’s armed forces, but did not apply to the Iraqi claimants in Mousa, were:
- Does the UK owe duties to its own armed forces in respect of their Convention rights, including the right to life, when they are sent to fight abroad?
- Does a government’s decision to commit troops to a military operation itself give rise to potential liability under the ECHR and HRA?
To summarise the answers to those questions as they affected the issues before the Court of Appeal in Mousa:
- The House of Lords decided that the first question had to be answered by reference to the case-law of the ECHR on extra-territorial application of the Convention, as the reach of Convention rights under national law should not extend further than their reach under public international law. The ECHR had held that the reach of states’ obligations under the Convention covered the territory of the state concerned, and also to other places over which the state, through its agents, exercised effective control. Some judgments extended states’ obligations by reference to other criteria, but a majority of the House of Lords regarded those further extensions as potentially conflicting with the territorial tests and as being either wrong or not securely established in the ECHR’s case law. Convention rights apply extraterritorially where agents of the state acting abroad exercise effective control over the area in which they are operating. In Mousa, the claimant was being held in a prison operated exclusively by British troops, and was therefore within the UK’s jurisdiction for the purpose of the Convention. (In December 2011, after the Court of Appeal’s decision in Mousa, the ECHR held that the House of Lords had been wrong about this, and that Convention rights bind UK service personnel in respect of people under their control even if they are not in areas which the UK effectively controls.)
- the UN Security Council Chapter VII resolutions in force at the relevant time authorized detention, but did not override the right to life or the right to be free of torture or inhuman or degrading treatment;
- the conduct of British military personnel at the relevant time was attributable to the UK, because the UN Security Council Chapter VII resolutions then in force did not take control of the MNF from the states concerned;
- as a matter of private international law, Iraqi law governed liability of UK troops in Iraq in tort. As Iraqi law at that time gave absolute immunity from legal liability to members of the MNF, victims of mistreatment during detention could not maintain an action in tort against the troops or the UK’s government.
In Mousa, however, the claimant was not bringing a tort action claiming damages for unlawful treatment. He was seeking judicial review of a decision by the Secretary of State for Defence to ask a specially established force, the Iraq Historic Allegations Team (IHAT), to investigate allegations made by the claimant and a large number of other detainees that they had been tortured and degraded while detained, instead of establishing a public inquiry. He claimed that IHAT was not sufficiently independent to meet the requirements of Article 3 of the Convention.
The Structure of IHAT and its Independence
IHAT consists of both civilian and military police officers, including members of the General Policing Division of the Royal Military Police (RMP), who were involved in detaining Iraqis in Iraq. IHAT is led by a civilian, and reports directly to the Provost Marshal (Army), the head of the Royal Military Police. Investigations are overseen by a separate body, the Iraq Historic Allegations Panel (IHAP), chaired by a civilian who is a senior civil servant in the Ministry of Defence. If an investigation indicates that prosecution or disciplinary proceedings would be appropriate, the matter is handed to commanding officers and the Director of Services Prosecutions.
The Court of Appeal in Mousa held that it was not necessary for the claimant to show that members of IHAT were actually biased, since “[o]ne of the essential functions of independence is to ensure public confidence and, in this context, perception is important.” The involvement of the Provost Branch of the RMP in matters concerning detention and internment of suspects in Iraq at the time of the alleged misconduct made it “impossible to avoid the conclusion that IHAT lacks the requisite independence.” If the allegations are true, Special Investigation Branch, General Policing Division and Military Provost Staff members, and probably also the Provost Marshal (Army) himself, would likely called to account. “Provost Branch members are investigating allegations which necessarily include the possibility of culpable acts or omissions on the part of Provost Branch members.” This compromised the practical independence of IHAT, at least as a matter of reasonable perception of the possibility of unconscious bias.
The role of IHAP in overseeing the investigation did not save IHAT’s independence. Members of IHAP and participants in its meetings “compris[e] representatives of the three bodies–the Ministry of Defence, the Army chain of command and the Provost Branch — which would be vulnerable to criticism if the case on systemic abuse is established.”
The Court of Appeal therefore had to decide whether to declare that, as a matter of law, the Secretary of State had acted unlawfully in deciding to wait on developments before deciding whether to initiate a public inquiry. The Divisional Court had decided that it was lawful to wait and see what emerged from the IHAT investigation and from two inquiries which had already been started, one into the death of Baha Mousa in 2003 and the other (the Al-Sweady inquiry) into allegations of unlawful killing and ill treatment at two bases in 2004. That decision had proceeded on the basis that the IHAT investigation was independent. Once the Court of Appeal decided that it was not, was it plausible that the Baha Mousa inquiry and the Al-Sweady inquiry could fill the gap? The Court of Appeal decided that they could not. The Baha Mousa inquiry, which had reported between the decisions of the Divisional Court and Court of Appeal, dealt with only a single case, whilst the Al-Sweady inquiry had only just begun. There was some overlap between the issues for those inquiries and the allegations of the claimant, but the claimant’s allegations ranged far more widely than the terms of reference of the inquiries. It was foreseeable that the inquiries would not be able to provide an effective and independent investigation of “later allegations spreading over several years in various locations involving different units.”
The Secretary of State must therefore now decide how to satisfy the obligations under Article 3 of the Convention bearing in mind that neither the IHAT investigation nor the inquiries so far established do so. For practical purposes, one can say that a public inquiry into the claimant’s far reaching allegations, time consuming and expensive as it will be, is the only remaining option. The implications of this are twofold.
First, the decision underlines the extent to which, as a result of the Convention and the HRA, unaccountable control by governmental bodies over state activities abroad has been limited by international obligations. In particular, the state can no longer undertake military activities which put the lives of civilians (whether its own citizens or foreigners) at risk without the threat of having to hold open and independent investigations afterwards. This enhances transparency and helps to create an ethos of openness and accountability, although for governments it also provides a disincentive to embark on military adventures abroad (that this is not too serious a disincentive is evidenced by the willingness of David Cameron’s coalition government to undertake operations in Libya in 2011).
The potential scope of a government’s legal obligation to account for deaths and mistreatment, either of its own military personnel on active service or of foreigners who get caught up in operations, is considerable. The risk of death does not, as a matter of law, prevent a government from committing troops to military action abroad, as the House of Lords held in R. (on the application of Gentle) v. Prime Minister. Nevertheless, the extent of judicial control over information about and investigations into the behavior of agents of the state has grown significantly; the Mousa case is just one of several in which the government, or the Security and Intelligence Services, have been required to make available information about the treatment of suspected “illegal combatants” to allow them to contest charges before American military commissions (e.g. Mohamed) or to remove exceptions from the terms of reference of an independent inquiry into mistreatment of enemy prisoners in order to ensure that the inquiry can properly investigate all allegations which might involve inhuman or degrading treatment within the meaning of Article 3 of the Convention (Equality and Human Rights Commission v. The Prime Minister and others).
The second major implication of Mousa and associated developments is that judges are required to impose limits on the government’s previously unfettered freedom to decide whether to hold inquiries into allegations of serious misbehaviour by state agents and, if an inquiry is held, what form it should take and what its terms of reference should be. This new role for judges empowers victims by giving them a way of asserting their interests when those decisions are being taken. Governments in the UK can no longer decide such questions purely on the basis of political expediency. As well as giving a voice to victims, the development provides legal underpinning for advancing transparency in government, a move also encouraged by the implementation of the Freedom of Information Act 2000, which, however, is weakened by extensive exemptions from the duty of disclosure.
It is remarkable to see how far judicial attitudes have changed since the 1970s, when it would have been unthinkable for a court to order a government minister (or a fortiori one of the armed services or secret services) to produce information about its activities in conducting military operations abroad or protecting national security. The credit for this is shared by judges and advocates who transformed public law in the UK between the 1970s and the 1990s, judges of the European Court of Human Rights, and far sighted politicians in the Labour government of 1997 who drafted and steered through Parliament the Human Rights Act 1998. Many of the gains could still be lost, however, if (as is possible) a future Conservative or Labour government repeals or emasculates the Act.
David Feldman is the Rouse Ball Professor of English Law at the University of Cambridge and a Fellow of Downing College. He previously served as Legal Adviser to the Parliamentary Joint Select Committee on Human Rights and as a Judge of the Constitutional Court of Bosnia and Herzegovina, among many other professional roles. He is the author of English Public Law as well as other books and articles on comparative public law, constitutional law, criminal procedure, civil liberties and human rights.
Suggested citation: David Feldman, UK Human Rights Litigation After the Iraq War, JURIST – Forum, Jan. 17, 2012, http://jurist.org/forum/2012/01/david-feldman-uk-iraq.php.
This article was prepared for publication by Caleb Pittman, an assistant editor for JURIST’s academic commentary service. Please direct any questions or comments to him at firstname.lastname@example.org
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