European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> Mazin Jum Aa Gatteh AL-SKEINI and Others v United Kingdom - 55721/07 [2008] ECHR 1787 (17 December 2008)
URL: http://www.bailii.org/eu/cases/ECHR/2008/1787.html
Cite as: [2008] ECHR 1787
[New search] [Contents list] [Printable RTF version] [Help]
17 December 2008
FOURTH SECTION
Application no.
55721/07
by Mazin Jum’Aa Gatteh AL-SKEINI and Others
against
the United Kingdom
lodged on 11 December 2007
STATEMENT OF FACTS
THE FACTS
The applicants, Mr Mazin Jum’Aa Gatteh Al-Skeini, Ms Fattema Zabun Dahesh, Mr Hameed Abdul Rida Awaid Kareem, Mr Fadil Fayay Muzban, Mr Jabbar Kareem Ali and Colonel Daoud Mousa are Iraqi nationals who live in Basra. They are represented before the Court by Public Interest Lawyers, a law firm based in Birmingham.
A. The circumstances of the case
The facts of the case, as submitted by the applicants and as summarised by the domestic courts, are as follows.
1. General background
The military operations by the United Kingdom in Iraq, in which British troops formed part of a United States of America-led coalition, were codenamed “Operation Telic” and divided into three phases. The first phase was planning and deployment; phase two consisted of the major combat operations; and phase three was characterised as stabilisation and reconstruction.
Phase two of Operation Telic began on 20 March 2003. By 5 April 2003, the British had captured Basra and by 9 April 2003, US troops had gained control of Baghdad. Major combat operations in Iraq were declared complete on 1 May 2003.
In the post-conflict period that followed, British forces remained in Iraq, together with other coalition forces, divided into six divisions, operating under a joint command headed by a US general. Four of the divisions consisted of US troops and two were multinational. The United Kingdom was given command of the multinational division (south east) (“MND(SE)”), which comprised the provinces of Al Basrah, Maysan, Thi Qar and Al Muthanna, with a population of approximately 4.6 million. During the relevant period the total number of coalition troops deployed in MND(SE) was about 14,500, of which about 8,150 were United Kingdom forces, the majority of whom were deployed in Al Basrah and Maysan provinces.
It was accepted by the Secretary of State during the domestic proceedings in this case that in the area covered by MND(SE), between 1 May 2003 and 28 June 2004 (“the relevant period”), the United Kingdom became an occupying power under the relevant provisions of the regulations annexed to the 1907 Hague Convention (“the Hague Regulations”: see below) and the 1949 Fourth Geneva Convention (also below).
During the relevant period, British forces in Iraq carried out two main functions. The first was to maintain security in the MND(SE) area, in particular Al Basrah and Maysan provinces. The principal security task was the effort to re-establish the Iraqi security forces, including the Iraqi police. Other tasks included patrols, arrests, anti-terrorist operations, policing of civil demonstrations, protection of essential utilities and infrastructure and protecting police stations. The second main function of the British troops was the support of the civil administration in Iraq.
Brigadier William Hewitt Moore (“Brigadier Moore”), who was in command of the UK 19 Mechanised Brigade whilst it was deployed in Iraq during part of the relevant period described the post-conflict situation there in the following terms in his evidence before the domestic courts:
“10. Iraq is the most volatile and violent place in which I have served. The population as a whole possessed a lot of weaponry, with at least two weapons in most households. In addition, the tribes, criminal gangs, and terrorist groups were very well armed with heavy machine guns, rocket-propelled grenades, bomb-making kit and a wide variety of other weapons.
11. The Rule of Law, which normally operates in a civil society, simply did not exist when we arrived in Iraq. The police were ineffective, they were not respected, they were corrupt, and they were easily intimidated by the tribes ...
12. The area was rife with tribal feuds and organised crime. Extortion, kidnapping, carjacking, looting and oil smuggling were the key criminal pursuits. When the criminals were conducting these activities they went heavily armed and they were always ready to shoot at us if we came across them. ...I suspect we had 2 or 3 shooting incidents involving armed criminals every night.
13. Tribal feuds were often extremely violent and dangerous ... where heavy machine guns were regularly fired at each other. ...
14. Terrorists, who included the former regime extremists, targeted us quite actively. Their attacks ranged from drive-by shootings to bombings. ...”
On 28 June 2004 the Iraqi Interim Government assumed full responsibility and authority for governing Iraq, the United Kingdom ceased to be an occupying power and the Hague Regulations and Fourth Geneva Convention ceased to apply.
2. The deaths of the applicants’ relatives
The deaths of the first six applicants’ relatives occurred in southern Iraq during “the relevant period”, when the United Kingdom was an occupying power.
The first applicant’s brother, Mr Hazim Jum’aa Gatteh Al-Skeini, was shot dead on 4 August 2003 by a member of a British military patrol in Basra. Very different accounts of the incident have been given by the first applicant and his witnesses on one side and British military witnesses on the other.
The second applicant’s husband, Mr Muhammad Abdul Ridha Salim, was fatally wounded on 6 November 2003 when British troops raided a house in Basra. He received medical attention but died on 7 November 2003. There was, again, a radical divergence between the respective parties’ accounts of this incident.
The third applicant’s wife, Mrs Hannan Mahaibas Sadde Shmailawi, was shot and fatally wounded on 10 November 2003 in the Institute of Education in Basra. On the British military account, she was shot unintentionally during an exchange of fire between a British patrol and a number of gunmen. The third applicant accepts that the shooting of his wife was not intentional. It appears that she may have been a very unfortunate bystander, and the Secretary of State does not accept that the fatal shot was fired by a British soldier rather than a gunman.
The fourth applicant’s brother, Mr Waleed Sayay Muzban, was shot and fatally injured on the night of 24 August 2003 in Basra. He was driving a people-carrier when he was shot, and he died the next day. The shooting occurred when a British military patrol was, on its account, carrying out a perimeter check and the vehicle, having initially stopped, was driven away and appeared to present a threat.
The fifth applicant’s son, Mr Raid Hadi Sabir Al Musawi, was shot and fatally wounded by a member of a British military patrol in Basra on 26 August 2003. He died nine weeks later, on 6 November 2003. The parties’ respective accounts of what happened are radically divergent.
The sixth applicant’s son, Mr Baha Mousa, was employed as a receptionist at a hotel in Basra and was working there on the morning of 14 September 2003 when British troops entered the hotel. He was seized and detained and taken to a British military base in Basra. At the base he was brutally beaten by British troops. He died of the injuries so inflicted during the night of 15 September 2003.
3. The domestic proceedings
On 26 March 2004, the Secretary of State for defence decided, in connection with the deaths of 13 Iraqi civilians, including the above six deaths, (1) not to conduct independent inquiries into the deaths; (2) not to accept liability for the deaths; (3) not to pay just satisfaction.
The applicants applied for judicial review of these decisions, seeking declarations that both the procedural and the substantive obligations of Article 2 (and, in the case of the sixth applicant) Article 3 of the Convention had been violated as a result of the deaths and the Secretary of State’s refusal to order any investigation.
On December 14 2004 the Divisional Court rejected the claims of the first five applicants but accepted the claim of the sixth applicant ( [2004] EWHC 2911 (Admin) ). It held that although the essential and primary nature of jurisdiction under Article 1 of the Convention was territorial, there were exceptions to the principle of territoriality. The exception that applied where a state party had effective control of an area was confined to the sphere of territories which lay within the jurisdiction of the signatories to the Convention, and did not therefore apply in Iraq. There was an additional exception, which arose from the exercise of authority by a Contracting State’s agents anywhere in the world, but this was limited to specific cases recognised by international law, exemplified by acts of State authorities in or from embassies, consulates, vessels and aircraft. Deaths as a result of military operations in the field, such as those complained of by the first five applicants, did not fall within this exception to the territorial principle. However, it did not strain the jurisprudence relating to the extraterritorial activity of State agents to hold that a British military prison, operating in Iraq with the consent of the Iraqi sovereign authorities and containing arrested suspects, fell within this exception. The Divisional Court further held that the scope of the Human Rights Act 1998 was identical to that of the Convention for these purposes and that the sixth applicant’s claim was within the jurisdiction of the 1998 Act. Since the investigation into the death of his son had not been open, timely or effective, there had been a breach of the United Kingdom’s procedural obligations under Articles 2 and 3 of the Convention.
The first five applicants appealed and the Secretary of State cross appealed. On 21 December 2005 the Court of Appeal dismissed the appeals and the cross-appeal ([2005] EWCA Civ 1609). It held that none of the victims in the first five applicants’ cases were under the actual control and authority of British troops at the time they were killed and that it was impossible to hold that the United Kingdom was in effective control of that part of Iraq that its forces occupied or that it possessed any executive, legislative or judicial authority outside the limited authority given to its military forces there. Save for the sixth applicant’s son’s death, therefore, which fell within the State agent authority exception, the United Kingdom did not have jurisdiction under Article 1 of the Convention. The Court of Appeal further concluded that the sixth applicant’s claim fell within the scope of the Human Rights Act 1998. Since the Divisional Court’s examination of the case, however, more information had emerged about the investigation into the death of the sixth applicant’s son, including that court martial proceedings were pending against a number of individuals, on charges ranging from manslaughter and inhuman treatment to assault and negligent performance of duty. The Court of Appeal therefore remitted to the Divisional Court for reconsideration, following the completion of the court-martial proceedings, the question whether there had been an adequate investigation.
The applicants appealed and the Secretary of State cross-appealed to the House of Lords, which gave judgment on 13 June 2007 ([2007] UKHL 26). The majority of the House of Lords (Lord Rodger, Baroness Hale, Lord Carswell and Lord Brown, with Lord Bingham dissenting) held that the general purpose of the Human Rights Act 1998 was to provide a remedial structure in domestic law for the rights guaranteed by the Convention, and that the 1998 Act should therefore be interpreted as applying wherever the United Kingdom had jurisdiction under Article 1 of the Convention. Before the House of Lords, the Secretary of State accepted that the facts of the sixth applicant’s case fell within the United Kingdom’s jurisdiction under Article 1 of the Convention and the parties agreed that the sixth applicant’s case should be remitted to the Divisional Court, as the Court of Appeal had ordered. As for the first five applicants’ complaints, the House of Lords, following the Court’s decision in Bankovic and others v. Belgium and others (dec)[GC] no. 52207/99, ECHR 2001-XII, found that the United Kingdom did not have jurisdiction over the deaths, since they occurred outside the “legal space” of the Contracting States and since the United Kingdom’s armed forces in southern Iraq did not exercise effective control there such as to enable it to provide the full package of rights and freedoms guaranteed by the Convention to the region’s inhabitants.
B. Relevant non-Convention material
1. Use of force by British soldiers
The use of force by British troops during operations is covered by the appropriate Rules of Engagement (“ROE”). The ROE governing the use of lethal force by British troops in Iraq during the relevant period was the subject of guidance contained in a card issued to every soldier, known as “Card Alpha”. Card Alpha was to all intents the relevant ROE and stated as follows:
“Card A – Guidance for opening fire for service personnel authorised to carry arms and ammunition on duty
General guidance
1. This guidance does not affect your inherent right to self-defence. However, in all situations you are to use no more force than absolutely necessary.
Firearms must only be used as a last resort
2. When guarding property, you must not use lethal force other than for the protection of human life.
Protection of human life
3. you may only open fire against a person if he/she is committing or about to commit an act likely to endanger life and there is no other way to prevent the danger.
Challenging
4. A challenge MUST be given before opening fire unless: (a) to do this would be to increase the risk of death or grave injury to you or any other persons other than the attacker(s), or (b) you or others in the immediate vicinity are under armed attack.
5. You are to challenge by shouting: ‘NAVY, ARMY, AIR FORCE, STOP OR I FIRE.’ Or words to that effect.
Opening fire
6. If you have to open fire you are to: (a) fire only aimed shots, and (b) fire no more rounds than are necessary, and (c) take all reasonable precautions not to injure anyone other than your target.”
2. Investigations into civilian deaths in Iraq
On 21 June 2003, the general officer commanding 1 UK Armoured Division, who was in command of MND(SE) at the time, issued a formal policy on the investigation of shooting incidents. This policy provided that all shooting incidents were to be reported and the divisional provost marshall was to be informed. Non-commissioned officers from the Royal Military Police (RMP) were then to evaluate the incident and decide whether it fell within the ROE. If it was decided that the incident did come within the ROE, then statements were to be recorded and a completed bulletin submitted through the chain of command. If the incident fell outside the ROE and involved death or serious injury, the investigation was to be handed to the RMP (Special Investigation Branch; “SIB”) by the divisional provost marshall at the earliest opportunity.
However, on 28 July 2003 a replacement policy was issued by MND (SE), which provided that any decision whether to initiate an RMP(SIB) investigation would be taken at a much higher level. This replacement policy required that all such incidents should be reported to MND(SE) by means of a serious incident report immediately following the incident. If the Commanding Officer (CO) of the soldier was satisfied, on the basis of the information available to him, that the soldier had acted lawfully and within the rules of engagement, then there was no requirement to initiate an investigation by the military police. The CO would record his decision in writing to his Brigade Commander. If the CO was not so satisfied, or if he had insufficient information to arrive at a decision, he was required to initiate a military police investigation.
Between January and April 2004 there was a further reconsideration of this policy, prompted by the fact that the environment had become less hostile and also by the considerable media and Parliamentary interest in incidents involving United Kingdom forces in which Iraqis had died. On 24 April, a new policy was adopted by MND(SE) which required all shooting incidents involving British forces which resulted in a civilian being killed or injured to be investigated by SIB(RMP). Exceptionally, the Brigade Commander might decide that an investigation was not necessary and in any such case the decision had to be notified to the Commander MND(SE) in writing.
During the relevant time, the form of an investigation into an incident would vary according to the security situation on the ground and the circumstances of the individual case. Generally, it would involve the Company Commander or CO taking statements from the members of the patrol involved, and reviewing radio logs. It might also include taking photographs of the scene. Sometimes there would be further investigation through a meeting with the family/tribe of the person killed. Investigations at unit level, however, would not include a full forensic examination, since there was no forensic capability within the Brigade.
The CO was required to call in the SIB to investigate if there was any doubt that an individual had not acted within the Rules of Engagement. The decision by the military chain of command whether or not to engage the RMP(SIB) to investigate had to be taken within 24 hours of an incident taking place. The chain of command was required to take legal advice from the directorate of army legal services before reaching such a decision and had to submit its decision in writing with that advice and any evidence relied upon to the general officer in command of MND(SE).
According to the evidence before the domestic courts, SIB investigations in Iraq were hampered by a number of difficulties such as security problems, lack of interpreters, cultural difficulties (e.g. the Iraqi practice of burying a body within 24 hours and leaving it undisturbed for 40 days), the lack of pathologists and post-mortem facilities, the lack of records, problems with logistics and the climate and general working conditions.
On conclusion of an SIB investigation, the investigating officer would write a report, presenting the evidence to the CO of the unit involved. Such a report would include a covering letter and a brief but factually accurate and complete summary of the evidence, together with the evidence of relevance to the investigation in the form of statements from witnesses and investigators. The report would not contain any decision as to the facts or any conclusions as to what had or might have happened.
3. The Hague Convention respecting the Laws and Customs of War on Land and the Hague Regulations (1907)
The obligations under the Hague Convention apply only between belligerent contracting powers (Article 2). Violation of the provisions renders a belligerent power liable to pay compensation (Article 3).
The Hague Regulations set out the relevant obligations arising out of the laws and customs of war on land. Regulation 42 provides as follows:
“Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.”
Regulation 43 provides:
“The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.”
4. The Geneva Convention relative to the Protection of Civilian Persons in Time of War (“Fourth Geneva Convention”)
The Fourth Geneva Convention contains detailed provisions generally considered to be declaratory of customary international law. Section III is headed “Occupied Territories”. The occupying power is entitled to subject the population of an occupied territory to provisions which are essential to enable the power to fulfil its obligations, maintain orderly government and ensure its own security and that of its occupying forces (Article 64). “Grave breaches” of the Fourth Geneva Convention are defined to include those, committed against persons protected by it, amounting to “wilful killing, torture or inhuman treatment” (Article 147). The parties to it agree to a regime of universal jurisdiction whereby each is “under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts” (Article 146). At the request of a party to the conflict, an enquiry must be instituted concerning any alleged violation (Article 149).
The Geneva Conventions Act 1957 as amended gives effect in the United Kingdom to the “grave breaches” provisions, so that such breaches are triable in the United Kingdom wherever and by whomsoever they were committed.
COMPLAINTS
The applicants allege that their relatives were within the jurisdiction of the United Kingdom under Article 1 of the Convention when they were killed through the acts of the British armed forces. They complain under Articles 2 (and additionally, in the case of the sixth applicant, Article 3) of the Convention about the failure to carry out a full and independent investigation into the circumstances of each death.
QUESTIONS TO THE PARTIES