War remains inside the court room: jurisdiction under ECHR

“An impressive and courageous judgment from Leggatt J and an equally impressive one here from an international law specialist, Lloyd Jones LJ, in the CA. Ultimately the difference between the courts may amount to no more than the judge thinking that his conclusion on point (2) ought to follow from Al-Skeini whereas the CA thought that this was a step which should only be taken by Strasbourg. There perhaps lurks in its reasoning a desire for Strasbourg to reconsider the full breadth of Al-Skeini but, again, it thought that this not for a domestic court to say.

Surely not the last we are going to hear of the case. It has all the hallmarks of a case for the Supreme Court, and, if the MoD wins there, for Strasbourg, at which point we really ought to learn whether any part of Bankovic remains good law. On any view, the outcome of the case (together with the servicemen’s claims under Art.2: see post here) will be very important for the Government as it considers the long-term implications of the Human Rights Act.”

UK Human Rights Blog

iraqAl-Saadoon & Ors v Secretary of State for Defence [2016] EWCA Civ 811, 9 September 2016  – read judgment

This is an extremely important judgment from the Court of Appeal on the reach of the ECHR into war zones, in this case Iraq. The CA, with the only judgment given by Lloyd Jones LJ, disagreed in part with Leggatt J – for whose judgment see Dominic Ruck Keene’s post here.

3 main points arose on appeal.

The first was the jurisdictional question under Art.1 of the Convention – were  Iraqi civilians killed or injured by British servicemen covered by the ECHR?

The second is the extent to which the UK is under a duty to investigate ECHR violations alleged by Iraqis, under Arts 3 (torture) and 5 (unlawful detention).

And the third is the question of whether the UN Torture Convention could be relied upon in domestic law proceedings.

I shall…

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