| | | European Court of Human Rights Al-Skeini and Others v. United Kingdom (July 7, 2011) Click here for document (approximately 90 pages) The Grand Chamber of the European Court of Human Rights has issued a landmark judgment, Al-Skeini and Others v. the United Kingdom, on the extraterritorial application of the European Convention on Human Rights. The Court ruled that because the United Kingdom was in charge of maintaining security in South East Iraq from May 2003 to June 2004, it was obligated to uphold the European Convention there, including its obligation to investigate under Article 2 (right to life). The Court concluded that the United Kingdom violated its procedural duty under Article 2 when it failed to carry out an independent and effective investigation into the death of five civilians killed during U.K. security operations in Basra during that period. The applications were filed by close relatives of the six individuals killed in Basra in 2003 during the U.K. occupation of the city. According to the decision, "three of the victims were shot dead or shot and fatally wounded by British soldiers; one was shot and fatally wounded during an exchange of fire between a British patrol and unknown gunmen; one was beaten by British soldiers and then forced into a river, where he drowned; and one died at a British military base, with 93 injuries identified on his body." After the killings, an internal investigation into the first four incidents concluded that the conduct was "within the applicable Rules of Engagement" and that no further investigation was necessary. (Under the Rules of Engagement, firearms are to be used "only as a last resort, to protect human life," and a warning should be issued before firing "unless it would increase the risk of death or injury to those under threat.") All victims received a charitable donation from the British Army Goodwill Payment Committee. The father of the fifth victim, a fifteen-year old boy who drowned after he was forced into a river for alleged looting, filed a complaint with the U.K. Ministry of Defense for damages for his son's death. He received 115,000 pounds and a formal apology from the British Army. The sixth victim's father also brought civil proceedings against the Ministry of Defense, which publically acknowledged liability and paid the family 575,000 pounds in compensation. The Secretary of State for Defence also announced the commencement of a public inquiry into the death of the sixth victim. In 2004, the applicants appealed the Secretary of State for Defense decision not to further investigate the deaths of their killed relatives. The Court of Appeal, partially affirming the lower court, concluded that five of the six applicants were not under U.K. jurisdiction because their relatives' deaths took place outside the "control and authority" of the Untied Kingdom. The sixth victim's death, however, took place "within the control and authority of agents of" the United Kingdom, and therefore jurisdiction existed. The House of Lords agreed with the reasoning on the jurisdictional interpretation of the Convention.
The main issue before the European Court was whether the European Convention applied to the killing of Iraqi civilians in Iraq by British soldiers, and whether the United Kingdom thus had a duty to investigate those killings. While the Court acknowledged its case law limiting the application of the Convention to a member state's territory, the Court emphasized that an extraterritorial act could be considered to fall within a state's jurisdiction in "exceptional circumstances," such as when a state exercised public powers on the territory of another state. According to the Court, in the present case, the United States and the United Kingdom assumed certain powers in Iraq normally reserved for a sovereign government. Specifically, the United Kingdom assumed the authority to maintain security in South East Iraq. This control created a sufficient link between the individuals killed and the government to justify the application of the Convention, including the right to an effective investigation under Article 2. While the Court acknowledged that in a war situation practical problems exist that may limit the scope of an investigation, the United Kingdom still had a duty to provide an independent and effective investigation into the deaths. The Court noted that the investigations into the deaths were either entirely within the military chain of command or lacking the necessary independence to be considered effective. The Court found, however, that the pending public inquiry into the death of the sixth victim satisfied the requirement of Article 2. The Court awarded the first five applicants each 17,000 euros for non-pecuniary damage and 50,000 euros, jointly, for costs and expenses. Al-Jedda v. United Kingdom (July 7, 2011) Click here for document (approximately 86 pages) The Grand Chamber of the European Court of Human Rights delivered another judgment related to the situation in Iraq, this time regarding the detention of a former U.K. national of Iraqi descent for more than three years in a detention center run by British forces. In Al-Jedda v. United Kingdom, the Court concluded that the United Kingdom violated Article 5 § 1 (right to liberty and security) of the European Convention on Human Rights. The applicant, whose British nationality was stripped in 2007, was detained in 2004 in Iraq on suspicion that he was personally responsible for recruiting terrorists outside Iraq with a view to the commission of atrocities there; for facilitating the travel into Iraq of an identified terrorist explosives expert; for conspiring with that explosives expert to conduct attacks with improvised explosive devices against coalition forces in the areas around Fallujah and Baghdad; and for conspiring with the explosives expert and members of an Islamist terrorist cell in the Gulf to smuggle high tech detonation equipment into Iraq for use in attacks against coalition forces. The applicant was held in a British detention center in Iraq without ever being formally charged with a crime. In 2005, the applicant filed a complaint in the United Kingdom challenging the lawfulness of his continued detention and the refusal by the government to return him to the United Kingdom. While the government acknowledged that they could not lawfully detain him under Article 5 § 1 of the Convention, it argued that his detention was authorized by UN Security Council Resolution 1546, which displaced the application of Article 5 of the Convention. In 2007, the House of Lords rejected the argument that the United Nations, not the United Kingdom, was responsible for the detention under international law. However, the House of Lords also concluded that UN Security Council Resolution 1546 required that the United Kingdom detain individuals considered to threaten the security of Iraq, an obligation the British government had to follow in accordance with Article 103 of the UN Charter. In other words, the UN Security Council Resolution had primacy over the European Convention. The Court ruled in favor of the applicant, noting that the role of the United Nations in Iraq was limited to providing humanitarian aid and assisting in the reconstruction of the country and the interim government. The maintaining of security, including the detention of suspects, was left for other countries, including the United Kingdom. Since the applicant was detained in a detention center in Iraq controlled by British forces, he was effectively within the authority and control of the British government. As a result, the applicant was within the jurisdiction of the government for purposes of Article 1 of the Convention. The Court also rejected the U.K. government's argument that under Security Council Resolution 1546, the U.K. government was obligated to detain suspected individuals in Iraq even if such detention was in violation of the European Convention. The Court emphasized that the Security Council must, pursuant to Article 24(2) of the UN Charter, "act in accordance with the Purposes and Principles of the United Nations." The Court read this to mean that a Security Council resolution could not be interpreted in a way that would require member states to breach fundamental principles of human rights. The UN resolution had to be read in harmony with other international obligations. Thus, the Court ruled, while Resolution 1546 authorized the UK to take measures to contribute to the maintenance of security and stability in Iraq, no UN Security Council resolution "explicitly or implicitly required the United Kingdom to place an individual whom its authorities considered to constitute a risk to the security of Iraq into indefinite detention without charge." The Court also ruled that "in the absence of a binding obligation to use internment, there was no conflict between the United Kingdom's obligations under the Charter of the United Nations and its obligations under Article 5 § 1 of the Convention." Since the Convention was not displaced by the UN Charter, and none of the exceptions to Article 5 applied, the Court found the United Kingdom in violation of Article 5 Convention rights. The Court ordered the British government to pay the applicant 25,000 euros for non-pecuniary damage and 40,000 euros for costs and expenses.
U.S. Supreme Court Garcia v. Texas (July 7, 2011) Click here for document (approximately 10 pages); click here for U.S. amicus brief (approximately 43 pages) On July 7, 2011, Humberto Leal Garcia was executed by lethal injection in Texas after the Supreme Court of the United States denied his application for stay of execution and application for writ of habeas corpus. Leal, a Mexican national, was convicted for the rape and murder of a 16-year-old girl. Relying on the International Court of Justice ("ICJ") decision in Avena and Other Mexican Nationals, Leal argued that the United States violated the Vienna Convention on Consular Relations for failing to notify him of his right to consular assistance, thus violating his due process rights. Leal asked the Supreme Court to stay his execution until January 2012 in anticipation of legislation that would implement the Avena decision. In Avena, the ICJ, reviewing an application filed by Mexico on behalf of fifty-one of its nationals awaiting execution in the United States, ruled that the United States had violated the Vienna Convention for failing to notify the Mexican nationals on death row of their consular rights. The ICJ ordered the United States to remedy the situation by giving each defendant a hearing to determine whether the violation amounted to harmless error. In Medellin v. Texas (2008), the Supreme Court ruled that neither the ICJ ruling in Avena nor the Bush administration Memorandum directing states to implement the ICJ Avena decision were enforceable federal law. The Court in Medellin concluded that even though the Avena decision constituted an international law obligation on the United States, "not all international law obligations automatically constitute binding federal law enforceable in United States courts." The Court stressed that the Optional Protocol Concerning the Compulsory Settlement of Disputes to the Vienna Convention, the United Nations Charter, and ICJ Statute are treaty sources that do not "create[] binding federal law in the absence of implementing legislation." And since no implementing legislation exists, "the Avena judgment is not automatically binding domestic law."
In the present case, Leal argued that a bill introduced by Senator Patrick Leahy, which would implement Avena, could possibly be finalized by January 2012. He therefore asked that his execution be stayed until that time. The Supreme Court, with Justices Breyer, Ginsburg, Sotomayor, and Kagan dissenting, disagreed: "It has now been seven years since the ICJ ruling and three years since our decision in Medellín I, making a stay based on the bare introduction of a bill in a single house of Congress even less justified. If a statute implementing Avena had genuinely been a priority for the political branches, it would have been enacted by now." |
