Aspals Court Martial/Human Rights Decided Cases

Latest Cases

**Selection of Reported Cases**
Name	Reference
*Google Case, NT1, NT2 -v-* Google** Right to be forgotten, criminal convictions, spent convictions, data protection, privacy rights, anonymity, internet search engine, Rehabilitation of Offenders Act 1974, Directive 95/46 EC, Data Protection Act 1998, Charter of Fundamental Rights of the European Union 2000/C 364/01, Regulation (EU) 2016/679, the General Data Protection Regulation	[2018] EWHC 799 (QB), 13/04/2018
The claimants were two businessmen who were convicted of criminal offences many years ago. The defendant, ("Google"), operates an ISE called Search which has returned and continues to return search results that feature links to third-party reports about the claimants' convictions. The claimants said that the search results convey inaccurate information about their offending. Further, they sought orders requiring details about their offending and their convictions and sentences to be removed from Google Search results, on the basis that such information is not just old, but out of date, and irrelevant, of no public interest, and/or otherwise an illegitimate interference with their rights. HELD: In relation to NT1: The delisting claim was not an abuse of the court's process, as alleged by Google. The inaccuracy complaint was dismissed. The First Article was a substantially fair and accurate report of legal proceedings held in public. The Second Article was not, but the claimant failed to prove that the information in the Second Article was inaccurate in any material respect. Similar conclusions applied to the similar information in the Book Extract. The remainder of the delisting claim was also dismissed. The claim for misuse of private information failed. The claims for compensation or damages did not arise. In relation to NT2: The delisting claim was not an abuse of the court's process, as alleged by Google. The inaccuracy complaint was upheld, and an appropriate delisting order to be made, its terms to be the subject of argument. The remainder of the delisting claim also succeeded. An appropriate order to be made, in terms to be the subject of argument. The claim for misuse of private information succeeded. But Google took reasonable care, and the claimant was not entitled to compensation or damages. Coram: Mr Justice Warby Claimants: Hugh Tomlinson QC & Jonathan Barnes (instructed by Carter-Ruck); Defendant: Antony White QC and Catrin Evans QC (instructed by Pinsent Masons LLP) Intervenor: Anya Proops QC & Rupert Paines (instructed by in-house lawyers for The Information Commissioner)
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Ireland v. The United Kingdom Torture, inhuman and degrading treatment, proper meaning, Northern Ireland, the five techniques of interrogation	HUDOC,(Application no. 5310/71) 20 March 2018
The case originated in an application (no. 5310/71) lodged [on 16 December 1971] with the European Commission of Human Rights by the Government of Ireland ("the applicant Government") against the Government of Great Britain and Northern Ireland. The case was referred to the Court by the applicant Government. In a judgment delivered on 18 January 1978 ("the original judgment"), the Court held, in so far as relevant in the context of the present revision request, that the use of the five techniques of interrogation in August and October 1971 constituted a practice of inhuman and degrading treatment, in breach of Article 3 of the Convention, and that the said use of the five techniques did not constitute a practice of torture within the meaning of Article 3 (see paragraphs 165-169 below and points 3 and 4 of the operative part of the original judgment). On 4 December 2014 the applicant Government informed the Court of new information and requested a revision of a judgment to the effect that the use of the five techniques of interrogation in depth amounted to a practice not merely of inhuman and degrading treatment but of torture within the meaning of Article 3 of the Convention. HELD: By 6 votes to 1, the Court dismissed the application. Even assuming that the documents submitted demonstrated that the Commission had been misled as regards the effects of the five techniques, the Court considered that it cannot be said that it might have had a decisive influence on the Court's finding in the original judgment that the use of the five techniques constituted a practice of inhuman and degrading treatment in breach of Article 3 of the Convention but did not constitute a practice of torture within the meaning of that provision. Coram: Helena Jaderblom, President, Branko Lubarda, Luis Lopez Guerra, Helen Keller, Dmitry Dedov, Siofra O'Leary, judges, Robert Reed, ad hoc judge, and Stephen Phillips, Section Registrar, Applicant: Mr P. White, of the Department of Foreign Affairs and Trade; Respondent: Mr P. McKell, of the Foreign and Commonwealth Office.
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Alseran, Alseran & Others v MOD Human rights, Afghanistan, Iraq, unlawful detention, mistreatment, British forces, Crown act of state, Mr Justice Leggatt, Leggatt J, Geneva Conventions 1949, review process, legal basis for the capture, international armed conflict, suspected prisoner of war	[2017] EWHC 3289 (QB), 14 December 2017
The claimants in these cases were Iraqi citizens who alleged that they were unlawfully imprisoned and ill-treated (or in a few cases that their next-of-kin was unlawfully killed) by British armed forces and who were claiming compensation from the Ministry of Defence ("MOD"). The claims were advanced on two legal bases. The first was the general law of tort under which a person who has suffered injury as a result of a civil wrong can claim damages from the wrongdoer. Because the relevant events occurred in Iraq, the Iraqi law of tort is applicable to these claims. But the claims are subject to a doctrine known as Crown act of state which (in broad terms) precludes the court from passing judgment on a claim in tort arising out of an act done with the authority of the British government in the conduct of a military operation abroad. The second legal basis for the claims is the Human Rights Act 1998, which makes a breach of the European Convention on Human Rights by a UK public authority unlawful as a matter of UK domestic law and gives the victim a potential claim for damages. On the balance of probability Mr Alseran's allegation that, following his capture, he (and other prisoners) were assaulted by soldiers running over their backs was true. The MOD was liable for this conduct which was also inhuman and degrading treatment in breach of article 3 of the European Convention. The system for review of detention at Camp Bucca was flawed because the approach adopted was to treat an individual who claimed to be a civilian as a prisoner of war unless there was no doubt that the person was a civilian. That approach was based on a wrong understanding by the MOD of the Geneva Conventions. Because it was contrary to international humanitarian law, Mr Alseran's detention between 10 April and 7 May 2003 violated article 5 of the ECHR and also gave rise to liability in tort (as the British government did not authorise detention which was in breach of the Geneva Conventions and the Human Rights Act).Mr Alseran was awarded damages under the Human Rights Act for (i) the ill-treatment following his capture, in a sum of £10,000, and (ii) his unlawful detention for 27 days, in a sum of £2,700. Coram: Mr Justice Leggatt Claimants: Richard Hermer QC, Harry Steinberg QC, Rachel Barnes, Nina Ross Helen Law, Alison Pickup, Edward Craven, Maria Roche and Melina Padron; Defendant: Derek Sweeting QC, James Purnell and Saara Idelbi
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Caroline, The Caroline Case Pre-emptive self defence, instant, overwhelming, leaving no choice of means, no moment for deliberation, customary international law	1842 Yale Avalon Project
The Caroline was an American steamer which had been used by Canadian rebels. The rebels enjoyed widespread support from Americans. During the insurrection in Canada in 1837 sympathetic commotions occurred at various places in the United States, especially along the Canadian border. The Government of the United States remained principally neutral and adopted active measures for the enforcement of the neutrality laws, but the difficulties of the situation were increased by the course of the insurgents, who, when defeated, sought refuge in the United States, where they endeavored to recruit their forces. The Caroline left Buffalo on the 29th of December for the port of Schlosser, which was also in New York. She was used to carry Canadian rebel forces. At midnight about 70 or 80 members of the British force at Chippewa boarded the steamer and attacked the persons on board with muskets, swords, and cutlasses. The "passengers and crew," of whom there were in all 33, merely endeavored to escape. After this attack the assailing force set the steamer on fire, cut her loose, and set her adrift over the Niagara Falls. Only 21 of the persons on board were been found, and one of these, Amos Durfee, a US citizen and crew member, was killed on the dock by a musket ball. Secretary of State Forsyth sent a note to Mr. Fox, the British minister at Washington, saying that the destruction of property and assassination of citizens of the United States on the soil of New York, when the President was endeavoring to allay excitement and prevent any unfortunate occurrence on the frontier, had produced "the most painful emotions of surprise and regret," and that the incident would be made the "subject of a demand for redress." Fox replied that the piratical character of the Caroline seemed to be fully established; that the ordinary laws of the United States were not at the time enforced along the frontier, but were openly overborne; and that the destruction of the Caroline was an act of necessary self-defense.' The United States Secretary of State Daniel Webster wrote to HM government that it was for Her Majesty's Government to show, upon what state of facts, and what rules of national law, the destruction of the "Caroline" was to be defended. "It will be for that Government to show a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation. It will be for it to show, also, that the local authorities of Canada,- even supposing the necessity of the moment authorized them to enter the territories of the United States at all,-did nothing unreasonable or excessive; since the act justified by the necessity of self-defence, must be limited by that necessity, and kept clearly within it. It must be strewn that admonition or remonstrance to the persons on board the "Caroline" was impracticable, or would have been unavailing; it must be strewn that daylight could not be waited for; that there could be no attempt at discrimination, between the innocent and the guilty; that it would not have been enough to seize and detain the vessel; but that there was a necessity, present and inevitable, for attacking her, in the darkness of the night, while moored to the shore, and while unarmed men were asleep on board, killing some, and wounding others, and then drawing her into the current, above the cataract, setting her on fire, and, careless to know whether there might not be in her the innocent with the guilty, or the living with the dead, committing her to a fate, which fills the imagination with horror. A necessity for an this, the Government of the United States cannot believe to have existed."
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Adyan and Others v Armenia ECHR, Human Rights, Article 5, Right to liberty and security; Article 9; Freedom of thought, conscience and religion, Conscientious Objection; Jehovah's Witnesses; performing alternative labour service; National Commission	(Application no. 75604/11), 1st Section, 12 October 2017
The applicants were four Jehovah's Witnesses who were found to be fit for military service. In May and June 2011 they were called up for military service. They failed to appear, and instead addressed letters to the local military commissariat and the regional prosecutor's office, refusing to perform either military or alternative service. They stated that they were Jehovah's Witnesses and claimed that the service proposed was not of a genuinely civilian nature since it was supervised by the military authorities. They said that their conscience did not allow them to work directly or indirectly for the military system. The court, unanimously declared the complaints admissible and Held that there had been a violation of Article 9 of the Convention. Coram: Judges Linos-Alexandre Sicilianos, President, Kristina Pardalos, Aleš Pejchal, Ksenija Turkovic, Pauliine Koskelo, Tim Eicke, judges, Siranush Sahakyan, ad hoc judge, Applicants: Mr P. Muzny, Professor of Law at the Universities of Savoy and Geneva, and Mr A. Carbonneau and Mr A. Martirosyan, lawyers practising in Paris and Yerevan respectively Respondent: Mr G. Kostanyan, Representative of the Republic of Armenia
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*Mikhno -v-* Ukraine ECHR, Human Rights, Military Courts, Right to life, Article 2, Article 6, Fair Trial, independence and impartiality, effective investigation, lengthy proceedings, effective remedies**	Application no. 32514/12, Fifth Section, 1 September 2016
The applicants alleged, in particular, that the State authorities had been responsible for the deaths of their relatives, Sergiy and Tetiana Mikhno, during a military airshow when an SU-27 military aircraft piloted by Colonels V.T. and Y.Y. crashed into the static aircraft display site where there were numerous spectators, where it exploded. Both pilots had successfully ejected before the explosion. As a result of the crash, seventy-seven people died and over 290 sustained injuries. The applicants also alleged that the State Authorities failed to conduct an effective investigation of the relevant circumstances; that the courts dealing with their claim for damages lacked independence and impartiality, that the relevant proceedings had been inordinately lengthy and that there were no effective remedies for the length of proceedings complaint. HELD: there has been no violation of Article 2 of the Convention; there has been a violation of Article 6 § 1 as regards the length of the proceedings in respect of the first applicant; there has been a violation of Article 13 of the Convention on account of the absence of effective domestic remedies in respect of the first applicant's complaints concerning the length of the proceedings; Coram: Angelika Nußberger, President, Ganna Yudkivska, Khanlar Hajiyev, Erik Mose, Andre Potocki, Yonko Grozev, Carlo Ranzoni, judges, and Milan Blasko, Deputy Section Registrar, Applicant: Mr D.A. Gudyma and Ms S.V. Khyliuk Respondent: Ms O. Davydchuk
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Krstic, The Prosecutor -v- Radislav Krstic Appeal, Srebrenica, Genocide, aiding and abetting genocide, persecution through murders, cruel and inhumane treatment, terrorising the civilian population, forcible transfer and destruction of personal property, crimes against humanity, Bosnian Muslims, Branjevo, Erdemovic, Mladic, Parallel Chain of Command, Circumstantial evidence, genocidal intent, Knowledge, state of mind	Case No: IT-98-33-A ICTY Appeals Chamber 19 April 2004
The facts of this case relate mainly to events which took place in the town of Srebrenica around July 1995. Srebrenica is located in eastern Bosnia and Herzegovina. It gave its name to a United Nations so-called "safe area", which was intended as an enclave of safety set up to protect its civilian population from the surrounding war. Since July 1995, however, Srebrenica has also lent its name to an event the horrors of which form the background to this case. The depravity, brutality and cruelty with which the VRS, the Bosnian Serb Army, treated the innocent inhabitants of the safe area are now well known and documented. Bosnian women, children and elderly were removed from the enclave, and between seven to eight thousand Bosnian Muslim men were systematically murdered. At trial D was found guilty of genocide; persecution through murders, cruel and inhumane treatment, terrorising the civilian population, forcible transfer and destruction of personal property as crimes against humanity; and murder as a violation of the laws or customs of war. Trial Chamber sentenced Mr Krstic to forty-six years' imprisonment. Defence appealed on four grounds, two of which were substantial: 1. The Trial Chamber's Findings that Genocide Occurred in Srebrenica - The Appeals Chamber upheld the TC's finding. Genocide under Article 4 of the Statute is satisfied where evidence shows that the alleged perpetrator intended to destroy at least a substantial part of the protected group. 2. Alleged Factual Errors relating to Joint Criminal Enterprise to Commit Genocide - when the Prosecution relies upon proof of a state of mind of an accused by inference, that inference must be the only reasonable inference available on the evidence. The case against Radislav Krstic was one based on circumstantial evidence. Mr Krstic was not guilty of genocide as a principal perpetrator but, because he knew that by allowing Drina Corps resources to be used he was making a substantial contribution to the execution of the Bosnian Muslim prisoners. He was an aider and abettor to a joint criminal enterprise to commit genocide, and not as that of a perpetrator. Coram: Judges Theodor Meron (Presiding), Fausto Pocar, Mohamed Shahabuddeen, Mehmet Güney and Wolfgang Schomburg Prosecution: Mr. Norman Farrell, Mr. Mathias Marcussen, Ms. Magda Karagiannakis, Mr. Xavier Tracol, Mr. Dan Moylan Defence: Mr. Nenad Petrusic, Mr. Norman Sepenuk
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*Ruggiu, The Prosecutor -v-* Ruggiu Propaganda, hate speech, conspiracy, incitement to commit genocide, crimes against humanity**	ICTR-97-32, Free Access
The defendant was employed as a journalist and broadcaster at RTLM. He is a Belgian national. He maintained close contacts with senior officials of the Rwanda Armed Forces. He left Rwanda for the Republic of Zaire, as it then was, about mid-July 1994. As employee of the RTLM, Ruggiu made broadcasts over the radio station advancing the theme that the 1959 revolution was unfinished, inviting the population to finish it off, which were calls for the elimination of the Tutsis. On 18 June 1994, he broadcast over the RTLM that Tutsis in Gitwe had not yet been killed, and directed that roadblocks be reinforced so that no one would escape. During the events giving rise to the charges in this indictment, the media exercised great influence over the Rwandan population, depicting the Tutsis as a group who wanted to wrest political power and economic power from the-Hutus, and stereotyping and denigrating Tutsis, including sexual denigration. He was found guilty on 6 counts and sentenced to a single concurrent sentence of twenty years for each of the counts. Coram: Judge Navanethem Pillay, Presiding, Judge Erik Møse, Judge Pavel Dolenc; Prosecution: Carla del Ponte, Mohamed Othman, William T. Egbe Respondent: Mohammed Aouini and Jean Louis Gilissen
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*L, R -v-* L Sentencing Guidelines Council, Court Martial Guidance on sentencing, Assault, racial abuse, Military Policeman, RMP, Effect of Reduction in Rank**	Indexed File,[2017] EWCA Crim 709 Free Access, [2017] EWCA Crim 709
RMP NCO assaulted another RMP NCO while heavily intoxicated. He alleged that the victim had used racially abusive language to him. The victim was examined at hospital where he was seen to have sustained a partial thickness laceration above his right eyebrow, (closed with three steri strips), bruising over his left cheek and a superficial laceration of his left lower lip. At trial, the Judge Advocate refused to consider the Sentencing Council Guideline despite the defence advocates attempts to persuade him of their relevance. He was sentenced to be reduced to the ranks, dismissed from the service and to serve 60 days' detention. HELD: The sentencing process was flawed in a number of respects. The CMAC considered the sentence afresh. Appeal allowed. Order of detention, the order for dismissal and reduction to the ranks quashed. In their stead the CMAC imposed a Severe reprimand. Coram: Vice-President Of The Court Of Appeal (Criminal Division) (Lady Justice Hallett), Mrs Justice Cheema-Grubb Dbe, Mr Justice Lavender Appellant: Mr R Scott Respondent: Colonel D Phillips
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*Ntaganda, Prosecutor -v-* Ntaganda** War Crimes, International Humanitarian Law, IHL, Geneva Conventions, Armed Conflict, Rome Statute, members of an armed force or group not excluded from protection against war crimes of rape and sexual slavery, international criminal law	[2017] ICC-01/04-02/06OA5
Bosco Ntaganda was criminally responsible for the rape of UPC/FPLC child soldiers, a war crime, punishable pursuant to article 8 (2) (e) (vi) and sexual slavery of UPC/FPLC child soldiers, a war crime, punishable pursuant to article 8(2)(e)(vi). Ntaganda argued, inter alia, against the confirmation of these charges on the basis that "crimes committed by members of armed forces on members of the same armed force do not come within the jurisdiction of international humanitarian law nor within international criminal law". HELD: Having regard to the established framework of international law, members of an armed force or group are not categorically excluded from protection against the war crimes of rape and sexual slavery under article 8 (2)(b) (xxii) and (2) (e) (vi) of the Statute when committed by members of the same armed force or group. Nevertheless, it must be established that the conduct in question "took place in the context of and was associated with an armed conflict" of either international or non-international character. It is this nexus requirement that sufficiently and appropriately delineates war crimes from ordinary crimes. {See an interesting critique of the decision by Kevin Jon Heller]. Coram: Claimants: Respondent:
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GHT, R -v- Outraging public decency, act of fellatio, "No Case to Answer", Intoxication of victim, Alcohol consumed, credibility, role of prosecutor	[2010] 19th May 2010
The matter charged, of outraging public decency, arose out of a visit to Jay's bar in Herford, West Germany on the night of 24th/25th January 2009. The Crown's entire case rested upon the evidence of a drunken private. Her evidence was that she went to the bar at a time she could not recall, although she indicated later it was probably 11 o'clock. Before she went she had drunk five or six vodkas and Coke. She then carried on drinking at the bar and dancing until about 3.00 am. Plainly by that time she must have been in a very advanced state of drunkenness. HELD: the witness concerned was obviously very, very drunk, there were a number of other people in the bar who had seen nothing and she had given inconsistent evidence. The submission that was made at the end of the prosecution case of "No Case to Answer" should not have been opposed by the Crown. The appeal was allowed and the sentence quashed. Coram: Lord Justice Thomas, Mr Justice Openshaw, Mr Justice Macduff; Appellant: Mr J Wing. Crown: Mr D Richards
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*Benavent Díaz -v-* Spain Summary Dealing, article 5 (deprivation of liberty), article 6 (fair trial), validity of reservation to ECHR**	[2017] (Application 46479/10) (In French) 23 February 2017; Court (Third Section
Dealt with summarily in on 22 February 2006 by his Commanding officer for absence from his place of duty while on an operational tour in Bosnia. Sentenced to 6 days arrest (to be spent in his accommodation) at Camp Butmir in Bosnia and Herzegovina, while being required to participate during his regular working hours in the activities of his unit. This was a minor punishment under Basic Law No. 8/1998 of 2 December 1998 concerning the disciplinary regime of the armed forces ("Organic Law No. 8/1998"). He complained that the the reservation made by Spain in 1979, could not be in accordance with Organic Law No. 8/1998, as Spain had informed the Council of Europe of the entry into force of this Act only on 23 May 2007, after he had served the punishment. His appeal to the Madrid District Court was unsuccessful. The Court considered that the reservation made by Spain was applicable to the present case, as it had remained in force without interruption since 1979, despite the fact that the Spanish authorities had not informed the Council of Europe of the legislative change in 1998 (corresponding to the entry into force of the Act No. 8/1998) that on 23 May 2007. His further appeal to the Court of Cassation was also dismissed. HELD: Only laws "in force" at the time of ratification may be the subject of a reservation. The question which remained to be decided was whether the reservation remained suspended without effects until it was updated or, on the contrary, remained in force as long as the Court did not declare the new law incompatible with the Treaty. The Court reiterated that, in order to be valid, a reservation must meet the following conditions: (1) it must be issued when the Convention or its Protocols are signed or ratified; (2) it must relate to a particular provision of the Convention; (3) it must relate to specific laws in force at the time of ratification; (4) it must not be of a general nature; (5) it must contain a brief statement of the law concerned. The Court, unanimously, declared the complaint inadmissible. Coram: Helena Jäderblom, president, Helen Keller, Branko Lubarda, Pere Pastor Vilanova, Alena Polácková, Georgios A. Serghides, judges, Blanca Lozano Cutanda, ad hoc judge; Applicant: Mr Casado Sierra and Mr D. Flores González; Spanish Government: R.-A. León Cavero, State Counsel and Head of the Legal Department of Human Rights at the Ministry of Justice.
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Belhaj and another (Respondents) -v- Straw and others (Appellants) Rahmatullah (No 1) (Respondent) -v- Ministry of Defence and another (Appellants) Torture, complicity, rendition, state immunity	[2017] UKSC 3 17 January 2017
Each respondent alleged complicity by MI6 agents in their detention and mistreatment by agents of third party states. The issues before the Court were whether, the claims of UK complicity for unlawful detention and mistreatment overseas at the hands of foreign state officials were properly triable in the English courts. HELD: Government's appeals were unanimously dismissed. To have held otherise would have meant the appellants could not have been sued anywhere for their alleged complicity in such torts, since they would be entitled to invoke state immunity in any foreign jurisdiction. Coram: Lord Neuberger (President), Lady Hale (Deputy President), Lord Mance, Lord Clarke, Lord Wilson, Lord Sumption, Lord Hughes; Appellants (Straw & Others): Rory Phillips QC, Sam Wordsworth QC, Karen Steyn QC, Sean Aughey; Respondents (Belhaj and another): Richard Hermer QC, Ben Jaffey, Maria Roche; Appellants (Ministry of Defence and another): James Eadie QC, Karen Steyn QC, Melanie Cumberland Respondent (Rahmatullah): Phillippa Kaufmann QC, Edward Craven; Richard Hermer QC, Nikolaus Grubeck, Maria Roche; Interveners (UN Special Rapporteur on Torture and another): Nathalie Lieven QC, Ravi Mehta, Shane Sibbel; Interveners: Martin Chamberlain QC, Oliver Jones, Zahra Al-Rikabi
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Rahmatullah (No 2) -v- Ministry of Defence Mohammed -v- Ministry of Defence UK armed forces, Detention in non-international armed conflict (NIAC), transferring prisoners to ally, Crown act of state, liability in tort, ECHR, article 3	[2017] UKSC 1 17 January 2017
The Appeals concerned the nature and content of the doctrine of Crown act of state. Respondents claimed to have been wrongfully detained or mistreated by UK or US forces in the course of the conflicts in Iraq and Afghanistan. Insofar as the proceedings include claims based on the Iraqi or Afghan law of tort, the Government (along with other defences) raised the doctrine of Crown act of state. HELD: The UKSC unanimously allowed the Government's appeals. The principle that there is no general defence of state necessity to a claim of wrongdoing by state officials has been established since the eighteenth century, save for the exception in the case of acts committed abroad against a foreigner which were authorised or ratified by the Crown. But the doctrine must be narrowly confined to a class of acts which involve an exercise of sovereign power, inherently governmental in nature, committed abroad, with the prior authority or subsequent ratification of the Crown, in the conduct of foreign relations of the Crown. In proceedings in tort governed by foreign law, the Government may rely on the doctrine of Crown act of state to preclude the court passing judgment on the claim if the circumstances are such as defined by this judgment. Per Lady Hale, at §32:"...if act of state is a defence to the use of lethal force in the conduct of military operations abroad, it must also be a defence to the capture and detention of persons on imperative grounds of security in the conduct of such operations. It makes no sense to permit killing but not capture and detention, the military then being left with the invidious choice between killing the enemy or letting him go." [More background in the summary for members]. Coram: Lord Neuberger, President; Lady Hale, Deputy President; Lord Mance; Lord Clarke; Lord Wilson; Lord Sumption; Lord Hughes; Appellant (Rahmatullah): James Eadie QC, Karen Steyn QC, Julian Blake; Appellant (Mohammed) : James Eadie QC, Sam Wordsworth QC, Karen Steyn QC, Julian Blake, Sean Aughey; Respondents (Rahmatullah): Richard Hermer QC, Nikolaus Grubeck, Maria Roche; Respondents (Mohammed): Richard Hermer QC, Ben Jaffey, Nikolaus Grubeck;
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Kontic and Others -v- Ministry of Defence Kosovo, ECHR, Jurisdiction, Attribution, UN Mandate, Geneva Conventions, the 1992 UN Declaration for the Protection of all Persons from Enforced Disappearances, Private International Law (Miscellaneous Provisions) Act 1995. Immunity from local jurisdiction	[2016] EWHC 2034 (QB) 04/08/2016
Claims arose from the dangerous and chaotic period which followed the deployment of the international military coalition known as "KFOR" into Kosovo, in June 1999. The three Claimants are the widows of Serbs abducted or murdered in or near Pristina, Kosovo, between 16 June and 5 July 1999. They alleged that British forces "failed to protect their family members or properly investigate [the killings] and to date the perpetrators remain at large". UNSCR 1244 was passed on on 10 June 1999, authorising KFOR "deployment in Kosovo, under United Nations auspices, of international civil and security presences" and setting out the responsibilities of the international security presence to be deployed and acting in Kosovo. HELD: Citing the Grand Chamber decision in the case of Behrami & Saramati v France (Application no. 71412/01), the court determined the matter of attribution and decided that the acts and omissions of British forces were attributable to the United Nations and not to the British government. Effective Control of the Area: the court rejected the claimant submissions that jurisdiction here can arise from the supposed effective control of the central MNB of Kosovo at the relevant period in the sense of such a degree of control so as to be in a position effectively to guarantee the gamut of convention rights. It is absurd to argue that KFOR was, or could be expected to be, in effective control of central Kosovo within a matter of days of the military takeover pursuant to the MTA. Effective control of an area as the foundation for an extension of the territorial jurisdiction of the European Convention, cannot arise from the fact that the forces of a Member State are the only significant force in an area. State Agent Authority and Control: In the instant cases, there was never any physical control by the Defendant of the Claimants' relatives. To found an extension of the Convention jurisdiction on the basis that initial investigatory steps were taken by military police officers attached to KFOR would represent a radical extension of the existing approach of the Strasbourg Court. Having concluded that there was no jurisdiction under the Convention, it follows that no "operational protective duty" arose under Articles 2 or 3. Moreover, in the conditions agreed to be prevailing in Kosovo in the relevant weeks in June and July 1999, it seems inconceivable that such a general duty could arise for an international force brought in to attempt stabilisation in such circumstances. Investigative duties can and do arise where a Member State carries the full range of duties commensurate with a territorial jurisdiction or where effective control of an area is established. Where jurisdiction is based on "physical control" or "SAA", then it is clear that an investigative duty arises in respect of the deaths (or Article 3 breaches, were they to arise) of those individuals concerned. In such circumstances there must be a trigger for an investigative obligation to arise. No freestanding investigative obligation arose under the Convention. It seems inconceivable that a duty to investigate arising during the short period when KFOR represented authority in Kosovo could be thought open-ended in time. No duties were owed under Articles 8 and 13. Application of HRA: In the course of Re McKerr [2004] UKHL 12, the House of Lords had clearly decided that the Human Rights Act could not be retrospective in its effect. It does not permit a claimant to bring a claim for breach of a Convention obligation before [the Act] came into force. McKerr remains good law and binding authority. Customary international law: Parliament, not the Executive, makes the law. Customary international law may be regarded as "not a part but … one of the sources of English law...customary international law is applicable in the English Courts only where the Constitution permits". The Human Rights Act 2000 does not apply to the deaths and disappearances which are the subject of this complaint. Immunity conferred on the Defendant under UN Security Council Resolution 1244 and set out in the Joint Declaration and UNMIK Regulation 2000/47: These documents provide that "KFOR personnel shall be subject to the exclusive jurisdiction of their respective sending state." However, the court found that the actions of KFOR fall to be attributed at law to the United Nations. That is sufficient to avoid liability on the part of the Defendant. The KFOR compensation scheme: There was no evidence before the court capable of establishing the scheme as being a practical opportunity for individuals to gain compensation. However, the court rejected any claim of abuse of process based on the compensation scheme. Immunity from action for direct liability, as opposed to vicarious liability: On balance the court found that such an immunity was established. That was clearly the intention in the agreement and regulation. Coram: Mr Justice Irwin; Claimants: Kirsty Brimelow QC, Catherine Meredith and Alex Gask (instructed by Savic & Co); Defendant: James Eadie QC, Brendan McGurk and Michelle Butler (instructed by The Government Legal Department).
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Mehida Mustafic-Mujic and others -v- Netherlands Muhamed Nuhanovic, ECHR, jurisdiction, effective control, Srebrenica massacre, Geneva Conventions, criminal investigation, effective investigation, decision not to prosecute, Jaloud	(2016) (application no. 49037/15) 30 August 2016
The applicants were relatives of deceased civilians, murdered by Bosnian Serb forces under the command of General Ratko Mladic, at Srebenica on or shortly after 13 July 1995. The complaint was that the Dutchbat commander and officers failed to take proper steps to protect them and that, subsequently, the Dutch authorities failed to investigate properly, in accordance with their obligation under Art 2 ECHR, their alleged complicity in genocide or alternatively in war crimes. After detailed consideration of the case, the public prosecutor decided not to take proceedings against the officers. The applicants then complained that the time taken for the public prosecutor to come to a decision had been excessive; that the investigation had been flawed in that it had been limited to information already available to the public; that the applicants had not been sufficiently involved, and in particular that they had not been heard; that the opinion of the reflection chamber – which in their submission favoured prosecution – had been ignored; that the decision not to prosecute was politically motivated; and that substantive criminal law had been misapplied. This complaint was dismissed by the Court of Appeal. A further submission was made by the Prosecutor that the Netherlands lacked jurisdiction within the meaning of Article 1 of the Convention, because as of 11 July 1995 "effective control" of the Srebrenica enclave had been exercised by the VRS not Netherlands armed forces. HELD: Having regard to the proceedings as a whole, "it cannot be said that the domestic authorities have failed to discharge the procedural obligation under Article 2 of the Convention to conduct an effective investigation ... which was capable of leading to the establishment of the facts, ... and of identifying and – if appropriate – punishing those responsible" (see Armani Da Silva, § 286). The application was manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. The Court unanimously Declared the application inadmissible. Coram: Luis Lopez Guerra, President, Helena Jäderblom, Johannes Silvis, Branko Lubarda, Pere Pastor Vilanova, Alena Polackova, Georgios A. Serghides, judges, and Fatos Araci, Deputy Section Registrar; Applicants: Ms L. Zegveld and Mr T. Kodrzycki
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British Gurkha Welfare Society and Others -v- United Kingdom ECHR, Article 14, Article 1 of Protocol No. 1 (protection of property), Gurkha veterans, pension rights, Tripartite Agreement, Accompanied service,	(2016) (application no. 44818/11) 15 September 2016
The Court was satisfied that Gurkha soldiers had been treated differently from other soldiers in the British Army as concerned their entitlement to a pension and that the difference in treatment could be regarded as less favourable. Furthermore, in view of the changes to the Gurkhas' situation, the Court accepted that by 2007 – the date of the offer to transfer – Gurkha soldiers had been in a similar situation to other soldiers in the British Army. However, the Court considered that any difference in treatment on grounds of nationality had been objectively and reasonably justified. In particular, the cut-off point, 1 July 1997, for different treatment of accrued pension had not been arbitrary as it represented the transfer of the Gurkhas' home base to the UK and therefore the point in time from which the Gurkhas had started forming ties with the country. Likewise, the Court considered that any difference in treatment based on age had also been objectively and reasonably justified. {This summary extracted from the Court's Press Release). Coram: Mirjana Lazarova Trajkovska, President, Ledi Bianku, Linos-Alexandre Sicilianos, Paul Mahoney, Ales Pejchal, Robert Spano, Pauliine Koskelo, judges, and Abel Campos, Section Registrar; Applicants: Mr E. Cooper of Slater and Gordon (UK) LLP; UK Government : Ms A. McLeod of the Foreign and Commonwealth Office.
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Al-Saadoon & Ors-v-Secretary Of State For Defence; Rahmatullah & Anr-v-Secretary Of State For Defence ECHR, Iraq, Extra-territorial jurisdiction, ECHR, has Al-Skeini overruled Bankovic?, Hassan, Jaloud, Soering, international humanitarian law, IHL	[2016] EWCA Civ 811 9 September 2016, CMAC
The extent to which the European Convention on Human Rights ("ECHR") applies to the conduct of British forces in Iraq remains highly controversial. There are two particular areas of controversy. 1. The question of the scope of application of the Convention and when individuals are to be considered to be within the "jurisdiction" of a contracting State within Article 1 of the Convention. The answer to the question whether the jurisdiction issue in Bankovic would be decided in the same way following the decision in Al-Skeini will depend on the precise scope of the exceptions acknowledged in Al-Skeini. 2. The extent to which there is a duty on the United Kingdom to investigate alleged violations of the ECHR rights of Iraqi civilians who were within the jurisdiction of the United Kingdom. In previous High Court proceedings, Leggatt J identified 4 issues, which the CA dealt with: The scope of application of the Convention. It is clear that Al-Skeini must now be taken as the starting point for any consideration of the extra-territorial application of the Convention and in particular the Grand Chamber's approval of the decision in Issa v Turkey, represents a major extension of jurisdiction beyond the principles stated in Bankovic. The answer to the question whether the jurisdiction issue in Bankovic would be decided in the same way following the decision in Al-Skeini will depend on the precise scope of the exceptions acknowledged in Al-Skeini. In relation to the concept of "effective control" over an area, before this exceptional ground of jurisdiction can apply, the contracting state must have a degree of control over the area in question which enables it to secure the full range of ECHR rights to its occupants. This is an important limitation on this exception. It was accepted that UK was far from being in effective control of the south eastern area which it occupied and it was accepted that this exception can have no application to the present case. Iraq is not a Convention state, so the principle of espace juridique can have no application in the circumstances of the present case. This left the Court concerned solely with the exceptional category described by the Grand Chamber in Al-Skeini as "state agent authority and control". It is now clear that whenever the state through its agents exercises control and authority over an individual, and thus jurisdiction, the state is under an obligation to secure to that individual the rights and freedoms under Article 1 of the Convention that are relevant to the situation of that individual. The matter has now been placed beyond doubt by the Grand Chamber in Hassan. Moreover, it was immaterial whether the basis of effective control was lawful or unlawful. The question whether the United Kingdom is exercising authority and control by virtue of exercising public powers normally exercised by the government of Iraq will depend on the facts of each case. There is no reason in principle why the public powers exception should not apply during the post-occupation period. The British armed forces, as part of the multi-national force, remained in Iraq at the request of the Iraqi government in order to perform security functions. They were "through the consent, invitation or acquiescence" of the government of Iraq exercising some of the public powers normally to be exercised by that government. The court did not accept that "the effect of Al-Skeini is to establish a principle of extra-territorial jurisdiction under Article 1 to the effect that whenever and wherever a state which is a contracting party to the Convention uses physical force it must do so in a way that does not violate Convention rights...[T]he intention of the Strasbourg court was to require that there be an element of control of the individual prior to the use of lethal force". See §69 (our emphasis). If the logical consequence of the principle stated in Al-Skeini is that any use of extra-territorial violence is within the acting state's jurisdiction for this purpose, that is a conclusion which must be drawn by the Strasbourg court itself and not by a national court. See §70. The extent to which there is an investigative obligation in respect of handover cases within Article 3 ECHR. Article 3 imposes three types of duty on a state: not to subject anyone within its jurisdiction to torture or to inhuman or degrading treatment or punishment. Secondly it imposes a positive obligation to take steps to protect an individual within its jurisdiction who is exposed to a real and imminent risk of serious harm of which the State authorities are aware. Thirdly, it has become established that Article 3 gives rise to an obligation not to send an individual to another State where there are substantial grounds for believing that he would face a real risk of being subjected to torture or other prohibited treatment. The cited caselaw did not support the proposition that an investigative obligation arises in all handover cases where there is an arguable breach of the Soering principle. Moreover, there was no reason in principle why such a broad investigative obligation should be considered necessary in order to give effect to the prohibitions imposed by Article 3. If in any handover case there is an arguable claim that the state which transferred the detainee is responsible for violating Article 3 through complicity in torture or other serious mistreatment inflicted by agents of the receiving state, an investigative duty would arise. What is required of an inquiry under Article 3 is likely to vary considerably from case to case. The extent to which there is an investigative obligation in respect of cases within Article 5 ECHR. A duty to investigate does not arise in all cases where there is an arguable violation of Article 5, save where there is an arguable claim that a person within the jurisdiction of a Contracting State has been the subject of enforced disappearance. Where there is an arguable claim that a person has been taken into state custody and has not been seen since, there is a duty on the state under Article 5 to investigate what has happened to that person. In such a case, there is a duty of investigation with the wider purpose of leading to the identification and punishment of those responsible for the disappearance. This investigative obligation arises where agents of the State have assumed control over an individual it is incumbent on the authorities to account for his or her whereabouts. The question whether Article 5 ECHR is modified or displaced by international humanitarian law during an international armed conflict, was answered in the light of the decision in Hassan, which said the ECHR must be interpreted in harmony with other rules of international law of which it forms part. Even in situations of armed conflict the safeguards under the Convention continue to apply, albeit interpreted against the background of the provisions of international humanitarian law. Detention must comply with the rules of international humanitarian law and, most importantly, it should be in keeping with the fundamental purpose of Article 5(1) which is to protect the individual from arbitrariness. In a situation of international armed conflict Article 5 ECHR and the provisions of international humanitarian law will co-exist and will both apply to issues of detention. Because the provisions of these two regimes are very different, no doubt reflecting the different fields in which they were originally intended to operate and the different purposes they were originally intended to achieve, it is necessary to effect an accommodation between the two. In an international armed conflict a system of judicial control over detention may not always be required; The impact, if any, on investigative duties under Articles 2 and 3 of the United Kingdom's obligations under the United Nations Convention Against Torture ("UNCAT"). UK's relevant obligations under UNCAT were applicable throughout the period of UK operations in Iraq in places where persons captured or arrested by British forces were detained. Neither on the basis of its effect as a treaty nor on the basis of customary international law is it tenable that the provisions of UNCAT give rise to domestically enforceable legal rights. Article 12 UNCAT does not appear to impose a broader duty of investigation than Article 3 ECHR. Secondly, the provisions of ECHR must be interpreted in harmony with rules of international law of which it forms part (Al-Adsani v United Kingdom at [55]) and therefore the development of Article 3 ECHR may in certain circumstances be influenced by UNCAT. Thirdly, when there is a duty to investigate an allegation of torture or other serious ill-treatment under Article 3 ECHR the circumstances to be investigated will often include the instructions, training and supervision given to those persons to whom the custody of the individual was entrusted. Coram: Lady Justice Arden; Lord Justice Tomlinson; Lord Justice Lloyd Jones; Appellants (Saadoon): Michael Fordham QC, Dan Squires QC, Jason Pobjoy and Flora Robertson (instructed by Public Interest Lawyers Limited); Appellant (Rahmatullah): Phillippa Kaufmann QC and Adam Straw (instructed by Leigh Day Solicitors) Respondent: James Eadie QC, Karen Steyn QC and Kate Grange
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