Al-Skeini & Ors, R (on the application of) v Secretary of State for Defence [2005] EWCA Civ 1609

“4. The Committee expresses its concern at: (b) the State Party’s limited acceptance of the applicability of the Convention to the actions of its forces abroad, in particular its explanation ‘that those parts of the Convention which are applicable only in respect of territory under the jurisdiction of a State party cannot be applicable in relation to actions of the United Kingdom in Afghanistan and Iraq’; the Committee observes that the Convention protections extend to all territories under the jurisdiction of a State party and considers that this principle includes all areas under the de facto effective control of the State party’s authorities.” (b) the State Party’s limited acceptance of the applicability of the Convention to the actions of its forces abroad, in particular its explanation ‘that those parts of the Convention which are applicable only in respect of territory under the jurisdiction of a State party cannot be applicable in relation to actions of the United Kingdom in Afghanistan and Iraq’; the Committee observes that the Convention protections extend to all territories under the jurisdiction of a State party and considers that this principle includes all areas under the de facto effective control of the State party’s authorities.”

“’The Convention’ means the Convention for the Protection of Human Rights and Fundamental Freedoms, agreed by the Council of Europe at Rome on 4th November 1950 as it has effect for the time being in relation to the United Kingdom.”

“11. A person’s reliance on a Convention right does not restrict – (a) any other right or freedom conferred on him by or under any law having effect in any part of the United Kingdom; or (b) his right to make any claim or bring any proceedings which he could make or bring apart from sections 7 to 9.” (a) any other right or freedom conferred on him by or under any law having effect in any part of the United Kingdom; or (b) his right to make any claim or bring any proceedings which he could make or bring apart from sections 7 to 9.”

“36. The Human Rights Act is a United Kingdom statute. The Act is expressed to apply to Northern Ireland: section 22(6). It is not expressed to apply elsewhere in any relevant respect. What, then, of Convention obligations assumed by the United Kingdom in respect of its overseas territories by making a declaration under article 56? In my view the rights brought home by the Act do not include Convention rights arising from these extended obligations assumed by the United Kingdom in respect of its overseas territories. I can see no warrant for interpreting the Act as having such an extended territorial reach. If the United Kingdom notifies the Secretary General of the European Council that the Convention shall apply to one of its overseas territories, the United Kingdom thenceforth assumes in respect of that territory a treaty obligation in respect of the rights and freedoms set out in the Convention. But such a notification does not extend the reach of sections 6 and 7 of the Act. The position is the same in respect of protocols.”

“In the absence of an intention clearly expressed or to be inferred from its language, or from the object or subject matter or history of the enactment, the presumption is that Parliament does not design its statutes to operate beyond the territorial limits of the United Kingdom.”

“For these reasons we have reached the conclusion that the Human Rights Act 1998 requires public authorities of the United Kingdom to secure those Convention rights defined in section 1 of the Act within the jurisdiction of the United Kingdom as that jurisdiction has been defined by the Strasbourg court. It follows that the Human Rights Act 1998 was capable of applying to the actions of the diplomatic and consular officials in Melbourne.”

“33 … The purpose of the Act, as stated in its preamble, was ‘to give further effect to rights and freedoms guaranteed under the European Convention on Human Rights’. In colloquial terms, the Act was intended to ‘bring rights home’. The Act was to provide a means whereby persons whose rights under the Convention were infringed by the United Kingdom could, in future, have an appropriate remedy available to them in the courts of this country. Persons who were victims of a violation of a Convention right within the meaning of article 34 of the Convention need no longer travel to Strasbourg to obtain redress. 34. To this end the obligations of public authorities under sections 6 and 7 mirror in domestic law the treaty obligations of the United Kingdom in respect of corresponding articles of the Convention and its protocols. That was the object of these sections. As my noble and learned friend Lord Hope of Craighead has said, the ‘purpose of these sections is to provide a remedial structure in domestic law for the rights guaranteed by the Convention’: Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2004] 1 AC 546, 564, para 44. Thus, and this is the important point for present purposes, the territorial scope of the obligations and rights created by sections 6 and 7 of the Act was intended to be co-extensive with the territorial scope of the obligations of the United Kingdom and the rights of victims under the Convention. The Act was intended to provide a domestic remedy where a remedy would have been available in Strasbourg.” (Emphasis added).

“Nationals of a State, including registered ships and aircrafts, are partly within its jurisdiction wherever they may be, and...authorised agents of a State, including diplomatic or consular agents and armed forces, not only remain under its jurisdiction when abroad but bring any other persons or property ‘within the jurisdiction’ of that State, to the extent that they exercise authority over such persons or property. Insofar as, by their acts or omissions, they affect such persons or property, the responsibility of the State is engaged.”

“It follows that these armed forces are authorised agents of Turkey and that they bring any other persons or property in Cyprus ‘within the jurisdiction’ of Turkey, in the sense of Art. 1 of the Convention, to the extent that they exercise control over such persons or property. Therefore, insofar as these armed forces, by their acts or omissions affect such persons’ rights or freedoms under the Convention, the responsibility of Turkey is engaged.”

“Bearing in mind the object and purpose of the Convention, the responsibility of a Contracting Party may also arise when as a consequence of military action – whether lawful or unlawful – it exercises effective control of an area outside its national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention derives from the fact of such control whether it be exercised directly, through its armed forces, or through a subordinate local administration.”

“77. It is of course true that the court in the Loizidou v Turkey case was addressing an individual’s complaint concerning the continuing refusal of the authorities to allow her access to her property. However, it is to be observed that the court’s reasoning is framed in terms of a broad statement of principle as regards Turkey’s general responsibility under the convention for the policies and actions of the TRNC authorities. Having effective overall control over northern Cyprus, its responsibility cannot be confined to the acts of its own soldiers or officials in northern Cyprus but must also be engaged by virtue of the acts of the local administration which survives by virtue of Turkish military and other support. It follows that, in terms of art 1 of the convention, Turkey’s ‘jurisdiction’ must be considered to extend to securing the entire range of substantive rights set out in the convention and those additional protocols which she has ratified, and that violations of those rights are imputable to Turkey. 78. In the above connection, the court must have regard to the special character of the convention as an instrument of European public order (ordre public) for the protection of individual human beings and its mission, as set out in art 19 of the convention, ‘to ensure the observance of the engagements undertaken by the High Contracting Parties’ (see Loizidou v Turkey (preliminary objections) (1995) 20 EHRR 99 at para 93). Having regard to the applicant government’s continuing inability to exercise their convention obligations in northern Cyprus, any other finding would result in a regrettable vacuum in the system of human-rights protection in the territory in question by removing from individuals there the benefit of the convention’s fundamental safeguards and their right to call a high contracting party to account for violation of their rights in proceedings before the court.”

“(1) that it was in Bankovic for the first time that the Court examined the question of Article 1 jurisprudence in the context of the background and underpinnings of international law; (2) that it was in Bankovic similarly for the first time that the Court found assistance in the ECHR’s own travaux préparatoires on Article 1; (3) that the essential question posed in Bankovic was the one considered by it in Loizidou, namely whether the applicants were "capable of falling within" the jurisdiction of the respondent states (see Bankovic at para 54); (4) that it was in Bankovic for the first time that Article 1 jurisdiction was pronounced to be "essentially territorial" – albeit the Court was able to cite (even though in reaching its conclusion it had not based its reasoning on) its own reference in Soering to the "notably territorial" limit set by Article 1 (see Bankovic at para 66); (5) that, while the citation of previous examples of the extra-territorial reach of Article 1 jurisdiction is expressed for the most part in terms of possibilities, the Court's own recognition of the exercise of extra-territorial jurisdiction by a contracting state is described as "exceptional" and limited to the case of the "effective control of the relevant area" (at para 71); (6) that otherwise the recognised instances (essentially of the Commission) of extra-territorial exercise of jurisdiction were in cases involving "the activities of its diplomatic or consular agents abroad and on board craft and vessels registered in, or flying the flag, of that state", situations where customary international law recognised a state's extra-territorial exercise of jurisdiction (at para 73); (7) that in an important and general passage towards the end of its judgment (at paras 79-80) the Court emphasised the essentially regional context of the ECHR and its aims and stated that, subject to the express case of extension pursuant to Article 56, the ECHR was not designed to be applied throughout the world even in respect of the conduct of state parties, and thus in effect warned that the purpose of the ECHR, its "ordre public objective", should not be used to universalise its aims or to stretch its reach outside its own "legal space" or "espace juridique"; (8) that in the context of that general philosophy the Court stressed that its own 2001 judgment in Cyprus v. Turkey in referring to "a regrettable vacuum" was not directed to universalist ambitions for the Convention but to the "entirely different situation" where otherwise the inhabitants of northern Cyprus would have found themselves excluded from the benefits of the Convention which they had previously enjoyed; and (9) that the Court reasoned that the rights and freedoms under Articles 2 and 3 could not be separated from those under the Convention as a whole (at para 75).”

“259. It is in these circumstances that Bankovic v. United Kingdom was decided. We refer to what we have said about it at para 190 above. In our judgment, Mr Greenwood is correct to call it a watershed. It was the first time that the theoretical and international law underpinnings of the doctrine of article 1 jurisdiction had been considered. A succession of cases in the immediately preceding years had perhaps come to demonstrate that a broad and thus potentially world-wide approach to the extra-territorial exercise of personal authority or jurisdiction did not lie happily with the regional scope of the Convention itself. These matters had begun to be considered in the cases on article 56 (Tyrer, Thanh and Yonghong), but also in Soering, as well as in the more recent of the northern Cyprus cases. The significance of that regional scope, of the European public order, of the legal space or espace juridique, could now be seen to have both an exclusive and an inclusive dimension. It was exclusive in the sense that it demonstrated that the Convention set a legal order for Europe where a common heritage was enjoyed, not for the world (see Soering at para 88, Bankovic at para 66). It was inclusive, however, in that within the European sphere there was need of particular care to ensure that the Convention standards were preserved (Cyprus v. Turkey (2002) at para 78, Bankovic at 80). 260. It also followed from the essentially territorial aspect of article 1 jurisdiction, that the broadest statements in the earlier cases could not survive as a driving force for the extension of article 1 jurisdiction to anywhere in the world where organs of state parties might exercise authority. In the circumstances the earlier cases were rationalised in Bankovic more narrowly as exceptional examples supported by international law and treaty provisions, such as "the activities of its diplomatic or consular agents abroad and on board craft and vessels registered in, or flying the flag of the state" (Bankovic at para 73).”

“59. As to the ‘ordinary meaning’ of the relevant term in art 1 of the convention, the court is satisfied that, from the standpoint of public international law, the jurisdictional competence of a state is primarily territorial. While international law does not exclude a state’s exercise of jurisdiction extra-territorially, the suggested bases of such jurisdiction (including nationality, flag, diplomatic and consular relations, effect, protection, passive personality and universality) are, as a general rule, defined and limited by the sovereign territorial rights of the other relevant states (Mann ‘The Doctrine of Jurisdiction in International Law’ RdC 1964, vol 1; Mann ‘The Doctrine of Jurisdiction in International Law, Twenty Years Later’ RdC 1984, vol 1; Bernhardt Encyclopaedia of Public International Law edition 1997, vol 3, pp 55–59 ‘Jurisdiction of States’ and edition 1995, vol 2, pp 337–343 ‘Extra-territorial Effects of Administrative, Judicial and Legislative Acts’; Oppenheim’s International Law (9th edn, 1992), vol 1, para 137; Dupuy Droit International Public (4th edn, 1998), p 61; and Brownlie Principles of International Law (5th edn, 1998), pp 287, 301 and 312–314). 60. Accordingly, for example, a state’s competence to exercise jurisdiction over its own nationals abroad is subordinate to that state’s and other states’ territorial competence (Higgins Problems and Process (1994) p 73 and Nguyen Quoc Dinh Droit International Public (6th edn, 1999), p 500). In addition, a state may not actually exercise jurisdiction on the territory of another without the latter’s consent, invitation or acquiescence, unless the former is an occupying state in which case it can be found to exercise jurisdiction in that territory, at least in certain respects (Bernhardt Encyclopaedia of Public International Law edition 1997, vol 3, pp vol 3, p 59 and edition 1995, vol 2, pp 338–340; Oppenheim’s International Law (9th edn, 1992), vol 1, para 137; Dupuy Droit International Public (4th edn, 1998), pp 64–65; Brownlie Principles of International Law (5th edn, 1998), p 313; Cassese International Law (2001) p 89; and, most recently, the ‘Report on the Preferential Treatment of National Minorities by their Kin-States’ adopted by the Venice Commission at its 48th Plenary Meeting, Venice, 19–20 October 2001). 61. The court is of the view, therefore, that art 1 of the convention must be considered to reflect this ordinary and essentially territorial notion of jurisdiction, other bases of jurisdiction being exceptional and requiring special justification in the particular circumstances of each case (see, mutatis mutandis and in general, Select Committee of Experts on Extraterritorial Criminal Jurisdiction, European Committee on Crime Problems, Council of Europe, ‘Extraterritorial Criminal Jurisdiction’, Report published in 1990, pp 8–30). 62. The court finds state practice in the application of the convention since its ratification to be indicative of a lack of any apprehension on the part of the contracting states of their extra-territorial responsibility in contexts similar to the present case. Although there have been a number of military missions involving contracting states acting extra-territorially since their ratification of the convention (inter alia, in the Gulf, in Bosnia and Herzegovina and in the FRY), no state has indicated a belief that its extra-territorial actions involved an exercise of jurisdiction within the meaning of art 1 of the convention by making a derogation pursuant to art 15 of the convention. The existing derogations were lodged by Turkey and the United Kingdom in respect of certain internal conflicts (in south-east Turkey and Northern Ireland, respectively) and the court does not find any basis upon which to accept the applicants’ suggestion that art 15 covers all ‘war’ and ‘public emergency’ situations generally, whether obtaining inside or outside the territory of the contracting state. (The United Kingdom has withdrawn its derogation as of 26 February 2001, except in relation to Crown Dependencies. Turkey reduced the scope of its derogation by communication to the Secretary General of the Council of Europe dated 5 May 1992.) Indeed, art 15 itself is to be read subject to the ‘jurisdiction’ limitation enumerated in art 1 of the convention. 63. Finally, the court finds clear confirmation of this essentially territorial notion of jurisdiction in the travaux preparatoires which demonstrate that the expert intergovernmental committee replaced the words ‘all persons residing within their territories’ with a reference to persons ‘within their jurisdiction’ with a view to expanding the convention’s application to others who may not reside, in a legal sense, but who are, nevertheless, on the territory of the contracting states (para 19, above).”

“71. In sum, the case law of the court demonstrates that its recognition of the exercise of extra-territorial jurisdiction by a contracting state is exceptional: it has done so when the respondent state, through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the government of that territory, exercises all or some of the public powers normally to be exercised by that government.”

“Additionally, the court notes that other recognised instances of the extra-territorial exercise of jurisdiction by a state include cases involving the activities of its diplomatic or consular agents abroad and on board craft and vessels registered in, or flying the flag of, that state. In these specific situations, customary international law and treaty provisions have recognised the extra-territorial exercise of jurisdiction by the relevant state.”

“In addition to the State territory proper, territorial jurisdiction extends to any area which at the time of the alleged violation, is under the ‘overall control’ of the State concerned (Loizidou v Turkey (preliminary objections) judgment of 23 March 1995, Series A No 210), notably occupied territories (Cyprus v Turkey [2001] ECHR 25781/94), to the exclusion of areas outside such control.”

“146. Further, the Convention does not merely oblige the higher authorities of the Contracting States to respect for their own part the rights and freedoms it embodies; it also has the consequence that, in order to secure the enjoyment of those rights and freedoms, those authorities must prevent or remedy any breach at subordinate levels (Ireland v UK, judgment of 18 January 1978, Series A no 25, pp 90-91, para 239). The higher authorities of the State are under a duty to require their subordinates to comply with the Convention and cannot shelter behind their inability to ensure that it is respected (ibid, p 64, para 159). 147. ...The general duty imposed on the State by art 1 of the Convention entails and requires the implementation of a national system capable of securing compliance with the Convention throughout the territory of the State for everyone. That is confirmed by the fact that, firstly, art 1 does not exclude any part of the member States’ ‘jurisdiction’ from the scope of the Convention and, secondly, it is with respect to their ‘jurisdiction’ as a whole – which is often exercised in the first place through the Constitution – that member States are called on to show compliance with the Convention (United Communist Party of Turkey and Others v Turkey, judgment of 30 January 1998, Reports 1998-I, pp 17-18, para 29).”

“314. … The Court has accepted that in exceptional circumstances the acts of Contracting States performed outside their territory or which produce effects there may amount to exercise by them of their jurisdiction within the meaning of art 1 of the Convention. According to the relevant principles of international law, a State’s responsibility may be engaged where, as a consequence of military action – whether lawful or unlawful – it in practice exercises effective control of an area situated outside its national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention derives from the fact of such control, whether it be exercised directly, through its armed forces, or through a subordinate local administration [Loizidou v Turkey (Merits) para 52]. 315. It is not necessary to determine whether a Contracting Party actually exercises detailed control over the policies and actions of the authorities in the area situated outside its national territory, since even overall control of the area may engage the responsibility of the Contracting Party concerned (ibid, ..., para 56). 316. Where a Contracting State exercises overall control over an area outside its national territory its responsibility is not confined to the acts of its soldiers or officials in that area but also extends to acts of the local administration which survives there by virtue of its military and other support (see Cyprus v Turkey, [2001] ECHR 25781/94, para 77).”

“71. Moreover, a state may also be held accountable for violation of the convention rights and freedoms of persons who are in the territory of another state but who are found to be under the former state’s authority and control through its agents operating – whether lawfully or unlawfully – in the latter state (see, mutatis mutandis, M v Denmark (1992) 15 EHRR CD 28; Illich Sanchez Ramirez v France (1996) 86 DR 155; Coard v US (1999) 9 BHRC 150 at paras 37, 39, 41 and 43; and the views adopted by the Human Rights Committee on 29 July 1981 in the cases of Lopez Burgos v Uruguay (no 52/1979) (29 July 1981) at para 12.3 and Celiberti de Casariego v Uruguay (no 56/1979) (29 July 1981) at para 10.3 respectively). Accountability in such situations stems from the fact that art 1 of the convention cannot be interpreted so as to allow a state party to perpetrate violations of the convention on the territory of another state, which it could not perpetrate on its own territory ([1996] ECHR 15318/89).”

“In the light of the above principles the Court must ascertain whether the applicants’ relatives were under the authority and/or effective control, and therefore within the jurisdiction, of the respondent State as a result of the latter’s extra-territorial acts.”

“The essential question to be examined in the instant case is whether at the relevant time Turkish troops conducted operations in the area where the killings took place.”

"In line with this, it would be unconscionable to so interpret the responsibility under article 2 of the Covenant as to permit a State party to perpetrate violations of the Covenant on the territory of another State, which violations it could not perpetrate on its own territory."

“This means that a State party must respect and ensure the rights laid down in the Covenant to anyone within the power and effective control of that State party, even if not situated within the territory of that State party… This principle [of applicability to all individuals who may find themselves subject to the jurisdiction of the State Party] also applies to those within the power or effective control of the forces of a State party acting outside its territory, regardless of the circumstances in which such power or effective control was obtained, such as forces constituting a national contingent of a State party assigned to an international peace-keeping or peace-enforcement operation.”

“37. While the extraterritorial application of the American Declaration has not been placed at issue by the parties, the Commission finds it pertinent to note that, under certain circumstances, the exercise of its jurisdiction over acts with an extraterritorial locus will not only be consistent with but required by the norms which pertain. The fundamental rights of the individual are proclaimed in the Americas on the basis of the principles of equality and non-discrimination -- "without distinction as to race, nationality, creed or sex." Given that individual rights inhere simply by virtue of a person's humanity, each American State is obliged to uphold the protected rights of any person subject to its jurisdiction. While this most commonly refers to persons within a state's territory, it may, under given circumstances, refer to conduct with an extraterritorial locus where the person concerned is present in the territory of one state, but subject to the control of another state – usually through the acts of the latter’s agents abroad. In principle, the inquiry turns not on the presumed victim's nationality or presence within a particular geographic area, but on whether, under the specific circumstances, the State observed the rights of a person subject to its authority and control.”

“It is common ground that, directly after being handed over to the Turkish officials by the Kenyan officials, the applicant was under effective Turkish authority and therefore within the ‘jurisdiction’ of that State for the purposes of art 1 of the Convention, even though in this instance Turkey exercised its authority outside its territory. It is true that the applicant was physically forced to return to Turkey by Turkish officials and was under their authority and control following his arrest and return to Turkey (see, in this respect, the aforementioned decisions in the cases of Illich Ramirez Sanchez v France and Freda v Italy; and, by converse implication, Bankovic v Belgium (2001) 11 BHRC 435).”

"42. Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised. 43. The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country….. 45. It is forbidden to compel the inhabitants of occupied territory to swear allegiance to the hostile Power. 46. Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected. Private property cannot be confiscated."

"27. Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity. 64. The penal laws of the occupied territory shall remain in force, with the exception that they may be repealed or suspended by the Occupying Power in cases where they constitute a threat to its security or an obstacle to the application of the present Convention. Subject to the latter consideration and to the necessity for ensuring the effective administration of justice, the tribunals of the occupied territory shall continue to function in respect of all offences covered by the said laws. The Occupying Power may, however, subject the population of the occupied territory to provisions which are essential to enable the Occupying Power to fulfil its obligations under the present Convention, to maintain the orderly government of the territory, and to ensure the security of the Occupying Power, of the members and property of the occupying forces or administration, and likewise of the establishments and lines of communication used by them."

"The combination of terrorist activity, the volatile situation and the ineffectiveness of Iraqi security forces meant that the security situation remained on a knife-edge for much of our tour. Despite our high work rate and best efforts, I felt that at the end of August 2003 we were standing on the edge of an abyss. It was only when subsequent reinforcements arrived... and we started to receive intelligence from some of the Islamic parties that I started to regain the initiative."

"I was not responsible for civil administration per se but the brigade had to become loosely involved in supporting it, owing to a lack of help from elsewhere. My colleagues and I dealt on a daily basis with the Iraqi local governor in Basra, and his governing council. The Commanding Officer of 1 KOSB did the likewise [sic] in Maysan. We also put perhaps 40 or 50 military personnel to work in the [CPA] offices. We assisted civil administration by paying public workers, rebuilding facilities and getting infrastructure working. For most of the tour the military provided vital support in running the two provinces. "

“The purposes of such an investigation are clear: to ensure so far as possible that the full facts are brought to light; that culpable and discreditable conduct is exposed and brought to public notice; that suspicion of deliberate wrongdoing (if unjustified) is allayed; that dangerous practices and procedures are rectified; and that those who have lost their relative may at least have the satisfaction of knowing that lessons learned from his death may save the lives of others.”

"301. From the point of view [of] the Mousa claim, we have not been persuaded by Mr Sales' submissions. There is no express provision of solely territorial scope. The presumption of territoriality is subject to contrary intention. In the present case there is also the presumption that a domestic statute enacting international treaty obligations will be compatible with those obligations. Section 3(1) is express language consistent with, and going further than, that latter presumption. Whatever may have been the position if our conclusion, or Strasbourg jurisprudence, had been that article 1 of the Convention was founded on some form of broad personal jurisdiction, nevertheless where on the contrary, for the reasons which we have described above, article 1 should be and has been given an essentially territorial effect, it is counter-intuitive to expect to find a Parliamentary intention that there should be gaps between the scope of the Convention and an Act which was designed to bring rights home, that is to say as we understand that metaphor to enable at any rate domestic or British claimants to sue in the domestic courts rather than in Strasbourg... Sections 1(4), 1(6) and 21(1) are written in terms of "in relation to" rather than "in" the United Kingdom and are in any event addressing a different issue to that of territorial or extra-territorial scope. Sections 3(1), 4(5) and 6(1) are all dealing of course with UK institutions, but it does not follow, even if it is in most cases likely, that those institutions must be based in the United Kingdom. An English embassy or consulate will be overseas; an English court might perhaps, at any rate with the consent of the foreign country concerned, go on a view abroad. The possibility of exceptional extra-territorial scope for an essentially territorially focussed constitutional enactment has been recognised not only in the Strasbourg jurisdiction itself, but also in Canada and the United States (see Cook v. The Queen and Rasul v. Bush discussed above)."

“SIB investigations in Iraq were hampered by a number of difficulties such as security problems, lack of interpreters, cultural difficulties (e.g. the Iraqi practice of burying a body within 24 hours and leaving it undisturbed for 40 days), the lack of pathologists and post-mortem facilities, the lack of records, problems with logistics and the climate and general working conditions…”

“Interpreters once again proved a great restraint on the speed of the investigation, as did force protection. Although several courses of action were identified as urgent, only one or two could occur at the same time due to lack of interpreters, force protection and vehicles. One suspect was escorted from theatre in order to avoid interference with witnesses and to give him the opportunity to consult with a legal adviser of his choice prior to interview under caution; the loss of the investigator accompanying and interviewing him meant that the small investigative team in Iraq was further diminished. The subsequent identity parades were also very difficult. The detainees were still being held at Camp Bucca, some of the military witnesses had returned to the UK, as had some suspects. This prolonged the process although it did take place satisfactorily.”

“… If, following the SIB report of early April, the investigation was still ongoing, we need to be put in a position where we can understand what is going on. For the same reason, we are unable to accept that the investigation has been open or effective. Other than in the early stages and at the autopsy, the family has not been involved. The outcome of the SIB report is not known. There are no conclusions. There has been no public accountability. All this in a case where the burden of explanation lies heavily on the United Kingdom authorities. ”

“In the first place, the applicants suggest a specific application of the ‘effective control’ criteria developed in the northern Cyprus cases. They claim that the positive obligation under art 1 extends to the securing the convention rights in a manner proportionate to the level of control exercised in any given extra-territorial situation. The governments contend that this amounts to a ‘cause-and-effect’ notion of jurisdiction not contemplated by or appropriate to art 1 of the convention. The court considers that the applicants’ submission is tantamount to arguing that anyone adversely affected by an act imputable to a contracting state, wherever in the world that act may have been committed or its consequences felt, is thereby brought within the jurisdiction of that state for the purpose of art 1 of the convention. The court is inclined to agree with the governments’ submission that the text of art 1 does not accommodate such an approach to ‘jurisdiction’. Admittedly, the applicants accept that jurisdiction, and any consequent state convention responsibility, would be limited in the circumstances to the commission and consequences of that particular act. However, the court is of the view that he wording of art 1 does not provide any support for the applicants’ suggestion that the positive obligation in art 1 to secure ‘the rights and freedoms defined in Section 1 of this convention’ can be divided and tailored in accordance with the particular circumstances of the extra-territorial act in question and, it considers its view in this respect supported by the text of art 19 of the convention. Indeed the applicants’ approach does not explain the application of the words ‘within their jurisdiction’ in art 1 and it even goes so far as to render those words superfluous and devoid for any purpose. Had the drafters of the convention wished to ensure jurisdiction as extensive as that advocated by the applicants, they could have adopted a text the same as or similar to the contemporaneous arts 1 of the four Geneva Conventions of 1949 (see para 25, above). Furthermore, the applicants’ notion of jurisdiction equates the determination of whether an individual falls within the jurisdiction of a contracting state with the question of whether that person can be considered to be a victim of violation of rights guaranteed by the convention. These are separate and distinct admissibility conditions, each of which has to be satisfied in the aforementioned order, before an individual can invoke the convention provisions against a contracting state.”