By Tobias Thienel

First of all, I do apologise for this late report (this is something I am going to have to do rather a lot in the next few days). The judgment of Mr Justice Collins in R (Smith) v Assistant Deputy Coroner for Oxfordshire [2008] EWHC 694 (Admin) is now over a month old. Still, it is quite interesting, so I propose to make some comments on it even now.

Collins J ruled in the High Court that British soldiers serving in Iraq were under the ‘jurisdiction’ of the United Kingdom within the meaning of Article 1 ECHR, and that they accordingly enjoyed rights under that Convention. In the case at hand, this meant that the inquest into the death of a British serviceman by the Assistant Deputy Coroner for Oxfordshire had to comply with the duties of investigation imposed by Article 2 ECHR (the duty to protect human life, inter alia by investigating any death that may arguably have been the result of wrongful acts and omissions of the state). I would suggest that Collins J was right, but that his reasons were not. The fault for that, I believe, lies with the Strasbourg Court more than with Collins J himself.

But first, the decision itself: Collins J was faced with a claim that an earlier inquest into the death of Pte Jason George Smith in a British Army camp in Southern Iraq had been defective. Part of the reasoning supporting that claim was that the inquest had to comply with the procedural obligation under Article 2 ECHR to investigate any death that the state may have wrongfully caused (as to which see e.g. McCann and Others v United Kingdom, para 161; Finucane v United Kingdom, paras 67 et seq). This argument required that the death should have occurred in circumstances to which the Convention applied; otherwise the death could not even arguably have been in violation of Article 2 (see In re McKerr [2004] UKHL 12, [2004] 1 WLR 807, paras 22, 50, 69, 83, 90). It was therefore necessary that Pte Smith should have been under the ‘jurisdiction’ of the UK in Article 1 terms, and thus under the protection of the ECHR. The Judge held that Pte Smith had indeed come within the ‘jurisdiction’ of the UK while in Iraq. Taken on its own, that was hardly a surprising conclusion. The Secretary of State for Defence (the second defendant) had conceded as much. That concession, however, had been on different grounds than the ones favoured by the Judge. The Secretary of State had made his concession based on the decision of the House of Lords in R (Al-Skeini) v Secretary of State for Defence (The Redress Trust intervening) [2007] UKHL 26, [2008] 1 AC 153. There, the House of Lords had held, inter alia, that Mr Baha Mousa, who had been tortured and killed in a British Army base, had at that time been under UK ‘jurisdiction’, so that the Convention applied to him. There remain some uncertainties as to the exact basis of that holding – it was apparently premised on some special jurisdiction that the UK was said to have over its military prisons abroad, not on the fact of direct physical control over Mr Baha Mousa – but it was patently indistinguishable from Pte Smith’s case: both men were, at the relevant times, in British Army camps. As a matter of English authority, the Secretary of State’s concession was therefore rightly made.

The Judge may well have agreed with that, but his judgment went down another route. He took as a starting point the explanation – if such it was – by the Grand Chamber of the European Court in Bankovic and Others v Belgium and Others, at para 61, that the term ‘jurisdiction’ in Article 1 ECHR had to be interpreted by reference to the concept of jurisdiction in general international law (i.e. the concept of the jurisdiction of states). He appears to have taken this as a simple syllogism: where the state has jurisdiction under general international law – under the rules conveniently explained by the Court in Bankovic – the European Court has jurisdiction to apply the ECHR (para 10 of Smith). [I might note here that the Judge’s description of the ‘jurisdiction’ point under the ECHR was his first error: the relevant ‘jurisdiction’ there is not that of the European Court, but that of a High Contracting Party, which triggers its obligations under the Convention. The supervisory jurisdiction of the Court then follows from the existence of the rights to be secured.]

On that basis, the Judge went on to cite from Bankovic (paras 59 and 60) the observations that a state enjoys jurisdictions over its nationals, and that such jurisdiction is subordinate to its own or any other state’s territorial jurisdiction over the same conduct (as where a national of state A is in state B ). [The latter observation may not actually be true, and reflect only a common law outlook on the international rules on jurisdiction.] Applying that to the case before him, he observed that the local territorial jurisdiction (that of Iraq) had been displaced by an order from the Coalition Provisional Authority granting immunity to Coalition bases in Iraq. UK jurisdiction over its nationals (the Army) therefore could not be subordinate to any territorial jurisdiction, and so existed in full force. It was therefore apt to give the UK ‘jurisdiction’ in the sense of Article 1 ECHR. With respect, that’s clearly nonsense. Under that reasoning, the UK would have to respect and ensure the human rights of every British soldier present anywhere in Iraq (or anywhere else where status of forces agreements apply to confer immunity from local jurisdiction), even if it does not begin to control the area. The ECHR would even apply to a British soldier (say, a liaison officer) serving in Baghdad. Personality is simply not a trigger of jurisdiction in the sense of Article 1 ECHR. It couldn’t possibly be, and the European Court has not said it was: whatever the merits of its invocation of general international law in Bankovic (and I will come to that in a bit), the relevant passage culminates in the – as such unremarkable – finding that extraterritorial jurisdiction will always be the exception. [That, it might be noted, is quite wrong as regards ‘jurisdiction to prescribe’, and a bit of an understatement as regards ‘jurisdiction to enforce’.] The Court did not say that ‘jurisdiction’ in the Article 1 sense equalled ‘jurisdiction’ in the sense of general international law (as pertaining to the regulatory powers of a state). As I have suggested earlier, I believe the blame for this misunderstanding lies with the Strasbourg Court. To compare the concept of ‘jurisdiction’ in Article 1 ECHR with the notion of ‘jurisdiction’ in general international law is to invite confusions of the kind that Collins J has fallen for. A state cannot be expected to guarantee the human rights of persons over whom it has no control. The only accepted bases of extraterritorial ‘jurisdiction’ in Article 1 are therefore those of (1) effective control over an area (e.g. Loizidou v Turkey, para. 52; Ilascu and Others v Moldova and Russia, para 314), and (2) effective control over a person (e.g. Öcalan v Turkey, para 91). Additional bases of personality (over a state’s own citizens) or universality (over very serious violations) cannot sensibly be added. The general rules on the jurisdiction of a state therefore have little or no relevance to Article 1 ECHR. Admittedly, ‘jurisdiction to enforce’ is exclusively territorial, and so might conceivably point to extraterritorial jurisdiction being exceptional. But that could as well be expressed as a simple practical matter: states generally act on their own territory, and not outside it. The concept of ‘jurisdiction to enforce’ expresses this in law, but is itself really only based on the nature of states as territorial entities. General international law therefore does not help much. It only obscures things: human rights ought to protect from exercises of state power in fact, not from such state actions as are within the state’s international power (‘jurisdiction’).

Of course, none of this means that Collins J decided Smith wrongly. It all depends on the application of the two proper tests: effective control over territory or effective control over a person. Now, the UK probably did not have effective control over the larger area of Southern Iraq (R (Al-Skeini) v Secretary of State for Defence [2005] EWCA Civ 1609, [2007] QB 140, paras 120-124), but it incontestably did have such control over its own military base. Pte Smith died there, and the base was also where his superiors failed to protect him. Article 2 ECHR therefore applied. [A question might otherwise arise what it is that must happen or be in the area under the ‘effective control’ of the state party: must the offending state action have been done within the area, or must the injured person have been injured in that area? Or is it both? The matter may well return to the High Court if it is ever argued there that the British Army is at fault for British soldiers being killed in (the uncontrolled parts of) Southern Iraq because it has insufficiently equipped them (which would have happened on the base, and hence under UK control).]

So, in summary: Smith appears to me to have been rightly decided, but for the wrong reasons. It also seems to me to have pointed out one of the problematic aspects of Bankovic. The case is very likely to go on to the Court of Appeal. I would be immensely surprised if that court came out against the reasoning of the Grand Chamber in Bankovic (Al-Skeini probably precludes this, the House of Lords judgment having been based squarely on Bankovic). I would be less than surprised, however, if the Court of Appeal simply overruled Collins J on his interpretation of Bankovic.