Thursday 7 July 2011

Long Awaited Al-Skeini and Al-Jedda Judgments Delivered

Today, the Grand Chamber of the European Court of Human Rights delivered its long awaited judgments in the cases of Al-Skeini and others v. the United Kingdom and Al-Jedda v. the United Kingdom. The first case concerned civilians killed during British security operations in Iraq. The second case was about the the internment of an Iraqi for more than three years in a detention centre in Basrah which was run by British forces.

In a nutshell, the Court held that both situations fell within the United Kingdom's jurisdiction, and it found violations of the procedural duties under the right to life in the first case (on which the Court did hold that it had to applied realistically, considering the breakdown of almost everything in post-Saddam Iraq)and of the right to liberty in the second one.

An important set of cases in many respects: on human rights obligations of armed forces, on the extraterritorial reach of the ECHR, on the relationship with UN Security Council decisions and on the attribution of responsiblity under international law. In Al-Jedda for example, the Court distinguished the Iraqi situation from the one in Kosovo holding that "the Court considers that the United Nations Security Council had neither effective control nor ultimate authority and control over the acts and omissions of troops within the Multi-National Force." Thus it held the UK to account (contrary to cases against other European countries in the Kosovo situation). Food for thought and for a lot of academic and politico-military discussion to follow, no doubt!

Once again, let me point to an, as ever, well-phrased concurring opinion of Judge Bonello, of which I will only cite the very last part here:

37. I confess to be quite unimpressed by the pleadings of the United Kingdom Government to the effect that exporting the European Convention on Human Rights to Iraq would have amounted to “human rights imperialism”. It ill behoves a State that imposed its military imperialism over another sovereign State without the frailest imprimatur from the international community, to resent the charge of having exported human rights imperialism to the vanquished enemy. It is like wearing with conceit your badge of international law banditry, but then recoiling in shock at being suspected of human rights promotion.

38. Personally, I would have respected better these virginal blushes of some statesmen had they worn them the other way round. Being bountiful with military imperialism but bashful of the stigma of human rights imperialism, sounds to me like not resisting sufficiently the urge to frequent the lower neighbourhoods of political inconstancy. For my part, I believe that those who export war ought to see to the parallel export of guarantees against the atrocities of war. And then, if necessary, bear with some fortitude the opprobrium of being labelled human rights imperialists.

39. I, for one, advertise my diversity. At my age, it may no longer be elegant to have dreams. But that of being branded in perpetuity a human rights imperialist, I acknowledge sounds to me particularly seductive.
Press releases on the two cases can be found on the website of the Court.

Please also read the - as ever - insightful comments of Marko Milanovic on EjilTalk!