The Human Rights Act 1998The Human Rights Act 1998

Applicability to UK Armed Forces Applicability to UK Armed Forces Overseas: a conflict of Overseas: a conflict of

Jurisdictions?Jurisdictions?

The General Rule on The General Rule on ExtraterritorialityExtraterritoriality

UK Statutes apply only to UKUK Statutes apply only to UK Exception: Extraterritoriality: Army Act 1955,s.70 Exception: Extraterritoriality: Army Act 1955,s.70

(Armed Forces Act 2006. s.42); OAPA 1861,s.9 (Armed Forces Act 2006. s.42); OAPA 1861,s.9 (murder/manslaughter);International Criminal (murder/manslaughter);International Criminal Court Act 2001, following treaty establishing the Court Act 2001, following treaty establishing the International Criminal Court (Rome Statute 1998).International Criminal Court (Rome Statute 1998).

Compare universal jurisdiction: Geneva Compare universal jurisdiction: Geneva Conventions Act 1957 (as amended), s.1; Criminal Conventions Act 1957 (as amended), s.1; Criminal Justice Act 1988, s.134 (tortureJustice Act 1988, s.134 (torture) R v Zardad ) R v Zardad (2005)(2005)..

Multi-State jurisdiction possibilities: IraqMulti-State jurisdiction possibilities: Iraq

The ECHR 1950 and the HRA 1998The ECHR 1950 and the HRA 1998

HRA 1998 ‘to bring rights home’.HRA 1998 ‘to bring rights home’. Which rights have been ‘brought home’? Which rights have been ‘brought home’?

Article 1?Article 1? Are the rights ‘brought home’ the same as Are the rights ‘brought home’ the same as

those under the ECHR?those under the ECHR?

Why is the bombing of a TV station Why is the bombing of a TV station in Belgrade relevant? in Belgrade relevant?

Bankovic v Belgium [and other NATO Bankovic v Belgium [and other NATO States]States] (2002) ILM 517. (2002) ILM 517.

Article 1 ‘within jurisdiction’Article 1 ‘within jurisdiction’ ‘‘Effective control of the relevant territory and Effective control of the relevant territory and

its inhabitants abroad as a consequence of its inhabitants abroad as a consequence of military action…exercises all or some of the military action…exercises all or some of the public powers normally to be exercised by public powers normally to be exercised by that Government.’that Government.’

But ‘legal space of the Contracting States’.But ‘legal space of the Contracting States’.

Other CasesOther Cases

Issa v TurkeyIssa v Turkey ECtHR 30/3/2005 ECtHR 30/3/2005 Ocalan v Turkey ECtHR 12/5/2005Ocalan v Turkey ECtHR 12/5/2005 Saddam Hussein v 21 States Saddam Hussein v 21 States (2006); UN (2006); UN

Security Council Resolution 1546 (2004)Security Council Resolution 1546 (2004) Distinction between State agent authority Distinction between State agent authority

and effective control of an area.and effective control of an area.

Iraq ‘brought home’Iraq ‘brought home’

Al Skeini et al v Secretary of State for Al Skeini et al v Secretary of State for Defence Defence [2006] EWCA Civ 1609[2006] EWCA Civ 1609

To be heard by the House of Lords later this To be heard by the House of Lords later this yearyear

Article 1 of the ECHR and the HRA 1998, Article 1 of the ECHR and the HRA 1998, s.7.s.7.

Individuals (a) detained by UK armed forces; Individuals (a) detained by UK armed forces; (b) shot in their houses or in the streets.(b) shot in their houses or in the streets.

ConclusionsConclusions

Likely that HoL will conclude that HRA 1998 Likely that HoL will conclude that HRA 1998 applies to at least those arrested by British applies to at least those arrested by British soldiers.soldiers.

Such individuals will be able to rely on HRA 1998, Such individuals will be able to rely on HRA 1998, s.7.s.7.

If HRA applies, Art.2 investigationsIf HRA applies, Art.2 investigations Even if HRA 1998 does not apply to individuals, Even if HRA 1998 does not apply to individuals,

soldiers liable to English criminal law: rules of soldiers liable to English criminal law: rules of engagement.engagement.

Not liable to Iraqi law because status of forces Not liable to Iraqi law because status of forces agreement.agreement.