The UK military had to adhere to the European Convention of Human Rights when it exercised control in Iraq soon after President Saddam Hussein was forced from power, according to Europe’s highest court.
The landmark decision established that human rights did apply to the UK-controlled Basra region in Iraq, contrary to what the British government had argued: that the Convention did not apply in Iraq because the territory was outside the UK’s borders.
The case (Al-Skeini and others vs the UK) was initiated by the relatives of six Iraqis killed in Basra in 2003 when the UK military was the occupying power.
Five of the Iraqis, including Hazim Jum’aa Gatteh Al-Skeini, died during military operations involving British soldiers and the sixth, Baha Mousa, was arrested and died in brutal circumstances while detained at a UK army base.
The European Court of Human Rights found that the UK had violated the European Human Rights Convention by failing to investigate the deaths of the Iraqi civilians killed by British soldiers.
Four years ago the UK’s highest court, the House of Lords, had ruled that the remit of the convention extended to the treatment of Mr Mousa but not to the other civilians.
In a concurring opinion but which substantially differed in the reasoning that led to the court’s decision, Judge Giovanni Bonello was scathing in his criticism of the arguments put forward by the British government, including the plea that exporting human rights would have amounted to “human rights imperialism”.
“It ill behoves a state that imposed 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,” Judge Bonello said.
This was Judge Bonello’s last case as a member of the Human Rights Court and one in which he exited with flair, achieving much acclaim in British legal circles for his separate opinion.
Judge Bonello argued that the universal concept of human rights as enshrined in the European Convention could not be “parcelled off by territory on the checkerboard of geography”.
He insisted that a state had the duty to uphold the human rights’ convention whenever the observance or the breach was within its authority and control.
There was no doubt as to the UK’s position in Basra, where the military authorities were vested with all executive, legislative and judicial authority by the Coalition Provisional Authority after Saddam Hussein was forced out of power by the US-led coalition.
However, Judge Bonello went a step further and noted that, in relation to the convention obligations, jurisdiction was neither territorial nor extraterritorial.
“It ought to be functional – in the sense that when it is within a state’s authority and control whether a breach of human rights is, or is not, committed, whether its perpetrators are, or are not, identified and punished, whether the victims of violations are, or are not, compensated, it would be an imposture to claim that, ah yes, that state had authority and control, but ah no, it had no jurisdiction.”
In quasi poetic terms he hit out at what he termed as the schizophrenic reasoning of the British government: “I resist any helpful schizophrenia by which a nervous sniper is within the jurisdiction, his act of shooting is within the jurisdiction, but then the victims of that nervous sniper happily choke in blood outside it.”
Judge Bonello was also very critical of the decision by the UK’s top court that found human rights were breached only in the case of Mr Mousa because he died in a military prison.
“If two civilian Iraqis are together in a street in Basra, and a UK soldier kills the first before arrest and the second after arrest, the first dies desolate, deprived of the comforts of UK jurisdiction, the second delighted that his life was evicted from his body within the jurisdiction of the UK. Same UK soldier, same gun, same ammunition, same patch of street – same inept distinctions. I find these pseudo-differentials spurious and designed to promote a culture of law that perverts, rather than fosters, the cause of human rights justice.”