UK Supreme Court rules against extraterritorial application of the HRA

The UK Supreme Court ruled (judgment; summary) on Wednesday 30 June that British troops deployed abroad are not protected by the 1998 Human Rights Act (which incorporates the European Convention on Human Rights into English law), and that soldiers are not automatically entitled to inquests arising from deaths in foreign conflicts.

The case, R (Smith) v. Secretary of State for Defence & Anor, involved Private Jason Smith, who died of heat stroke in Iraq after making several complaints to his commanding officers. An inquest found that Private Smith’s death was caused by a serious failure to address the difficulty he had in adjusting to the climate. Smith’s mother filed suit against the government, claiming that the UK owed her son a duty to respect his right to life, which was protected by Article 2 of the ECHR, and that the government must launch an investigation into the alleged breach of that right.

The issues at stake in this judgment are mainly two:
(i) whether on the true interpretation of article 1 of the ECHR British troops operating on foreign soil fell within the jurisdiction of the United Kingdom (‘the jurisdiction issue’);
(ii) whether the fresh inquest into the death of Private Smith must conform with the procedural requirements implied into article 2 (‘the inquest issue’).

While the UK Court of Appeal had previously answered both the issues in the affirmative, the Supreme Court overruled the decision, holding that the act does not extend to troop operations abroad and that there is no automatic right to such an investigation whenever a member of the armed forces died on active service. That principle, the court decided by a six to three majority, applied only when soldiers were on their base, and not when they stepped outside on patrol or on operations.

It is interesting to note how the Court motivated its decision on the jurisdiction issue. Lord Phillips stated that the European Court of Human Rights in Strasbourg had held that ‘jurisdiction’ within the meaning of article 1 was essentially territorial but extended in exceptional circumstances requiring special justification to other bases of jurisdiction. The difficulty lay in defining those exceptions [para 11]. It was unlikely that the Contracting States, when they agreed the ECHR in 1951 in the aftermath of a global conflict in which millions of troops had been deployed, regarded it as desirable or practicable to extend the protection of article 2 to troop operations abroad [para 58].

On the other hand, Lord Mance, dissenting, considered that as an occupying power in Iraq, the UK had under international law an almost absolute power over the safety of its forces. The relationship was not territorial but depended on a reciprocal bond of authority and control on the one hand and allegiance and obedience on the other [para 192].    In his view the Strasbourg court would hold that the armed forces of a state were within the meaning of article 1 and for the purposes of article 2 wherever they might be [para 199].    Lord Kerr agreed. If the state could ‘export’ its jurisdiction by taking control of an area abroad it could equally do so when it took control of an individual. In his view this had already been recognised albeit obliquely by the Strasbourg court [para 331].

Read more comments on the judgment:
Adam Wagner, UK Human Rights Blog
Marko Milanovic, EJIL Talk.


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