Extraterritorial Jurisdiction under the ECHR – Smith (and Others) v MOD (2013)

by | Jun 24, 2013

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About Natasha Holcroft-Emmess

Natasha is a DPhil candidate in the Law Faculty at Oxford University. Her DPhil research focuses on derogation under human rights treaties. Natasha is also a Lecturer in Constitutional Law at Keble College, and she has a strong research interest in international law and human rights. She works part-time as the Research Director at the Oxford Human Rights Hub, prior to which she worked on the Hub's podcast and blog editorial teams.

In Smith (and Others) v MOD [2013] UKSC 41, the UK Supreme Court was charged with determining whether the UK government had jurisdiction over British soldiers killed while serving in Iraq.

The incidents in question raised several issues, including the admissibility of claims under the substantive aspect of Article 2 of the ECHR (the right to life). Separate incidents also raised questions of the defence of combat immunity and the applicability of common law negligence. This post confines discussion to the issue of extraterritorial application of the European Convention on Human Rights (ECHR). Although the Supreme Court was divided as to the issues set out above, it was unanimous on the correct approach regarding extraterritorial jurisdiction.

Article 1 ECHR enshrines an obligation on states to secure to those within their jurisdiction the rights and freedoms set out in the Convention. The claimants in Smith argued that the UK government failed to take reasonable measures to safeguard the lives of soldiers required to patrol in lightly armoured vehicles, which provided no significant protection against improvised explosive devices (‘IEDs’) that caused the deaths in question. In order to make this claim (relating to the substantive aspect of Article 2), the claimants had to show that the UK government had jurisdiction and the Convention applied extraterritorially.

Lord Hope, delivering the leading judgment on this issue, analysed prior UK and European Court of Human Rights (ECtHR) jurisprudence. The ECtHR held in Bankovic v Belgium that Article 1 of the ECHR establishes an ‘essentially territorial’ notion of jurisdiction to reflect the term’s meaning in public international law (under the ILC Articles on State Responsibility). States could, however, exercise jurisdiction extraterritorially in exceptional circumstances. It was suggested in Bankovic that this would be limited to where states exercised sufficient control to enable them to provide the full package of Convention rights to everyone in the area, generally when they exercised ‘public powers’.

Since Bankovic, however, the ECtHR has moved away from this narrow spatial interpretation of jurisdiction, towards acceptance of a personal model based on authority and control. Several cases (such as Issa v Turkey, Öcalan, and Medvedyev) focussed the level of state control over the individuals affected, rather than requiring overall control of an area. In Al-Skeini v UK, it was expressly held, in direct contrast with dicta from Bankovic, that obligations under the Convention could be ‘divided and tailored’ to apply to individual situations in which the state exercised authority and control over persons at the time of alleged violations.

Turning to the Smith case itself, at the time when IEDs caused the deaths of soldiers patrolling in lightly armoured vehicles in Iraq (2005/06), the UK no longer exercised ‘public powers’ in the region (as it had in Al-Skeini v UK); the Coalition Provisional Authority had ceased to exist and local administration had passed to the interim Iraqi government. But the Supreme Court held unanimously that the UK exercised extraterritorial jurisdiction over the soldiers at the time of their deaths, based on the authority and control which the UK, through the chain of military command, had over the individuals.

The decision of the Supreme Court is to be praised for a thorough and conscientious appraisal of a complex and contradictory body of prior jurisprudence. It is argued that the court was correct to hold that the UK exercised extraterritorial jurisdiction at the time in question. This conclusion is consistent with the development of the personal model of jurisdiction and the division and tailoring of obligations owed under the Convention. The analysis appears very similar to the ‘functional approach’ to jurisdiction – based on the exercise of authority and control – advocated by Judge Bonello, concurring in Al-Skeini v UK.

The decision is a positive step towards ensuring that the human rights obligations assumed by states, in the words of Judge Bonello (Al-Skeini v UK at [O-II18]), are not made “casual and approximate depending on geographical co-ordinates”. It advances the supremacy of the rule of human rights law, wherever in the world a state chooses to assert its authority.

 Natasha Holcroft-Emmess is a BCL Candidate and frequent contributor to the Oxford Human Rights Hub Blog.

A more in-depth discussion of the development of ECtHR jurisprudence on extraterritorial jurisdiction can be found here, at pp. 11-18.

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  1. James Wilson

    “It is argued that the court was correct to hold that the UK exercised extraterritorial jurisdiction at the time in question. ”

    Well maybe it was, but it does not take one very far in deciding whether the UK (or European) courts have any business entertaining claims brought as a result of substandard equipment. The majority in Smith seems to think it is possible to allow for combat immunity in battlefield deployment, and for non-justiciability of long-term procurement (just as well for Whitehall since Britain almost always gets that wrong) on the one hand, and deployment of substandard kit in the form of the snatch land rovers or the failure to equip the Challenger tanks with identification technology. I dispute this.

    The last time British troops went into action with the best equipment in the world was probably 1918. That leaves some fertile historical ground for hypothetical questions. If the ECHR had had its present status in English law in the past, would:

    – the relatives of the Hood’s crew had the right to sue because of the inadequate deck armour (known to all Navy Brass at the time, including Vice Admiral Holland, who was forced to give positional advantage to the Bismark accordingly, with fatal consequences)?

    – relatives of dead crew on HMS Sheffield in 1982 been able to sue for all the Type 42 inadequacies (too numerous to mention)?

    – relatives of the Swordfish pilots killed in the Channel Dash been able to sue for what might as well have been a kamakazie raid because the plane was so obsolete?

  2. Realist

    We cannot look at the older cases retrospectively as you should be aware, the soldiers had a right NOT to be treated as collateral damage and as human beings. I am damn sure you would not want to go in to a battlefield knowing that the opposing forces could slice through your defensive armory like butter through a knife,.The whole point is , the British Army knew this and allowed it to happen .

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