R (Al Skeini and others) v Secretary of State for Defence

PIL is acting in the case of Al Skeini on behalf of Iraqi civilians who were tortured, in some cases to death, and killed during the occupation of Iraq. We argue that their rights under Articles 2 (the right to life) and 3 (the prohibition against torture) ECHR were breached and the Government is therefore obliged to hold an independent inquiry into their treatment. We have already achieved partial and significant victories at the High Court and the Court of Appeal, which found that the Human Rights Act applies in situations where an individual is under the control of a British authority, in this case, the military. The House of Lords will hear the appeal for six days from 17th to 19th and 23rd to 25th April 2007.

JUDGEMENT IS EXPECTED IN LATE SUMMER AND WE ARE CONSIDERING HOLDING A MEETING IN LONDON TO DISCUSS ITS IMPLICATION.PHIL SHINER OF PIL WOULD BE ONE OF THE SPEAKERS

This test case will establish whether the European Court of Human Rights applied to the actions of UK soldiers wherever they are serving abroad.

Background

The case, R (on the application of Al Skeini) v Secretary of State for Defence (Al Skeini) reveals shocking allegations of unlawful killings and severe beatings during detention of Iraqi civilians. The 6 cases selected as test cases to be considered by the Court at the end of July are as follows:

1. Hazim Jum’aa Gatteh Al-Skeini: Hazim, aged 23, was shot dead by a British soldier on 4 August 2003 whilst attending a funeral. The family subsequently received a letter from the British army in Basra, which expressed deep regret and offered to make a small donation.

2. Hannan Mahaibas Saeed Shmailawi: On 10 November 2003 Hanan was with her husband and family at the Institute of Education in Basra when the building was fired into by British forces outside. She was shot in the head and legs, taken to hospital in an army vehicle and subsequently died. A handwritten note from a Major in the British Army confirms that Hannan was shot by C Company of the 1st King’s Brigade.

3. Muhammad Abdul Ridha Salim: On 5 November 2003 Muhammad was at his brother-in-law’s house. British soldiers forced entry by breaking down the front door and one soldier fired a rifle with a silencer into Mohammad’s stomach who later died in hospital. A subsequent letter from a Major in the British Army confirms that the British forces had entered the property by mistake.

4. Waleed Fayayi Muzban: On 24 August 2003 Waleed was driving home from work in a people carrier when it was hit on a number of occasions by bullets fired by British soldiers from behind. He was wounded in the chest and stomach and died in a military hospital. The British Forces in Basra apparently refused to return the vehicle, which has been impounded.

5. Raid Hadi Sabir Al Musawi: On 7 August 2003 Raid Hadi Al Musawi, a policemen, was taking a box of “suggestions and complaints” to a judge’s house, as part of his duty, when he was fired on by a British patrol. He subsequently died in hospital on 6 November.

6. Baha Mousa: Baha, aged 26, died in custody of the British Army. He worked at a hotel in Basra. On the morning of 14 September 2003, a British army unit raided the hotel looking for the owner, who they believed had guns hidden there. During the raid they arrested Baha and other hotel employees. All were taken away and detained until 16 September. During that period, hoods were placed over their heads, they were beaten and kicked, forced to crouch for hours in stress positions, not given food or water except for extremely spicy food which they could not eat and water which was poured onto their hoods. Baha was taken to a separate room and could be heard moaning, saying he was dieing. On the third day, his father, Daoud Mousa, was informed that his son had died in custody. He was taken to identify the body which had been severely beaten. A month later, the British Military Commander wrote to Daoud Mousa expressing his regrets and condolences.

High Court ruling

The High Court decided that the HRA and the ECHR applied in the cases of those detained in British military prisons, such as the case of Baha Mousa. In this case, the Court even went as far as to say that the UK had failed to fulfil its obligations under Articles 2 and 3, in particular, it had failed to conduct an independent investigation. In relation to the other cases, the Court found that the ECHR could not apply outside of Europe, even where a State Party had effective control of territory. However, the most recent case from the European Court of Human Rights (Issa v Turkey) found that where effective control does exist, the ECHR could apply outside the Council of Europe.

Court of Appeal ruling

The Court of Appeal upheld the High Court's finding that HRA and the ECHR apply to Mr Mousa's case on the basis that he came within the authority and control of British forces in Iraq. The Court of Appeal went further and held that not only those in British prisons were protected by the HRA and ECHR, but individuals whose liberty had been restricted by British forces were also covered, regardless of whether they were detained in a prison, as they came under British authority and control. The Court of Appeal further highlighted the defects in military investigations, in particular, the role of the Commanding Officer and the inherent problems resulting from investigations lacking independence from the military chain of command. The Court recognised the important and unique protection provided by the ECHR, through the positive obligation under article 2 and 3, to conduct an independent investigation and that such protection could extend to territory outside Europe where a State Party was found to have effective control over such territory.

However, the Court of Appeal did not consider that cases 1 - 5 fell within British authority and control because those individuals did not have their liberty restricted, nor did the UK have effective control over the territory in Southern Iraq where these incidents took place. But permission to appeal to the House of Lords against these two findings has been granted to the families. PIL consider that where British armed forces personnel are, for example, performing policing functions, such as home raids, street patrols and manning check points, they are exercising authority and control and therefore, the HRA and ECHR should apply.

Implications of case

The Al-Skeini case involves issues which are not only important to the victims and their families and their right to redress, but also extremely significant in in ensuring that future conflicts, occupations and peacekeeping operations are subject to human rights law.

Although the occupation of Iraq is governed by international humanitarian law and was authorised by Security Council Resolution 1483, international law provides for human rights and humanitarian law to apply side by side. Military occupation is subject to long established rules set out in the Geneva Conventions, protecting the basic human rights of the civilian population. These rules, if violated after July 2002, may also mean that “War Crimes”, as defined by section 8 of the Rome Statute, have been committed, which would bring such acts within the jurisdiction of the International Criminal Court, a new and untested guardian of international human rights.

However, the judicial review action in this case is particularly important because it involves using the HRA to bring about accountability, through domestic courts, for treatment of civilians in occupied territory. The HRA replicates the basic standards of International Human Rights Law (even before the Geneva Conventions, these basic standards were part of Customary International Law), but significantly, advances the procedural application and enforceability of human rights through an obligation to investigate, which has not been made possible in domestic courts under International Humanitarian Law. In the case of Iraq, the argument for domestic accountability is made even stronger in light of the immunity afforded to Coalition personnel (under Coalition Provisional Authority Order 17) from prosecution in Iraqi courts. Such personnel enjoy complete immunity from criminal and civil liability under Iraqi jurisdiction.

The decision of the Court of Appeal is an important victory for the torture cases in which PIL are acting. Accountability involves knowing who was responsible, how far up the chain of command this went, and whether the war and subsequent occupation was properly planned and prepared. It also involves the full participation of relatives in the independent inquiry, full damages, if these were unlawful killings, and the possibility of criminal prosecutions for “war crimes” of those responsible. Hopefully, this will now be possible.

The proceedings to date have resulted in close scrutiny of military investigations by lawyers, the courts and the Attorney General and have raised serious doubts as to whether such investigations are able to cope with abuses of fundamental human rights.

The court martial of the seven soldiers, including Colonel Mendonca, implicated in the torture and killing of the 25-year-old hotel receptionist Baha Mousa is currently taking place at Bulford Court Martial Centre. This has already been described as the most important courts martial in history. PIL does not accept, however, that this court martial satisfies the requirements of impartiality and independence under Article 2 ECHR, on the basis that the military cannot impartially investigate and prosecute itself.