Tuesday, April 24, 2012

AL-Skeini v. Secretary of State for Defense case brief

AL-Skeini v. Secretary of State for Defense


Procedural History:
Wrongful death proceedings under international convention.

Overview:

The families (P) of six Iraqi civilians who were killed in Basra in 2003 where the United Kingdom (D) was  an occupying power appealed a decision by U.K. authorities not to conduct an independent investigation into the circumstances of the deaths, arguing that the Human Rights Act 1998 has extraterritorial application where the United Kingdom (D) is an occupying power. Six Iraqi civilians were killed in Basra in 2003 where the United Kingdom (D) was an occupying power. Five of them were shot dead by members of U.K. armed forces in the course of patrol operations, and the sixth was arrested and died in a military base. U.K. authorities refused to conduct an independent investigation into the circumstances of the deaths. The U.K. government argued that the deaths occurred outside the territory of the United Kingdom (D), and consequently the European Convention for Human Rights, which imposes an obligation for independent and thorough investigation, does not apply. The families (P) of the deceased sued.

Issue:

Did the Human Rights Act 1998 apply to acts of a U.K. public authority performed outside its territory only where the victim was within the jurisdiction of the United Kingdom (D) for purposes of the European Convention on Human Rights?

Rule:

the HR act of 1998 applied to acts of a UK public authority performed outside its territory only where the victim was within the jurisdiction of the UK for purposes of the ECHR

Analysis:

There were actually four Lords forming the majority (Lord Rodger included), and Lord Bingham was the sole dissenter. Lord Rodger's basic rule is that the presumption against extraterritoriality must be seen against the background of international law, that Parliament had a legitimate interest in regulating the conduct of its citizens, and therefore could intend its legislation to affect their position in other states.

Outcome:

(Rodger of Earlsferry, L. [for the majority]) Yes. The Human Rights Act 1998 applied to acts of a U.K. public authority performed outside its territory only where the victim was within the jurisdiction of the United Kingdom (D) for purposes of the European Convention on Human Rights. The rule of statutory construction adopted by Lord Bingham must be taken against the background of international law, and jurisdiction under the HRA should be co-extensive with the interpretation given by the European Court to jurisdiction under the Convention. The Convention applies outside the territory of the United Kingdom (D) where the deceased were linked to the United Kingdom (D) when they were killed. The HRA does not have a more restrictive jurisdictional scope than the Convention rights it was meant to implement. With the exception of the claimant who had been mistreated inside a British military c detention unit, the claimants were not within U.K. jurisdiction within the meaning of the Convention.

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