“Under the agreed arrangement, the MNF stands ready to continue to undertake a broad range of tasks to contribute to the maintenance of security and to ensure force protection. These include activities necessary to counter ongoing security threats posed by forces seeking to influence Iraq’s political future through violence. This will include combat operations against members of these groups, internment where this is necessary for imperative reasons of security, and the continued search for and securing of weapons that threaten Iraq’s security. …”
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention.”
“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.”
“[t]he controlling state has the responsibility under art.1 to secure, within the area under its control, the entire range of substantive rights set out in the Convention and those additional Protocols which it has ratified. It will be liable for any violations of those rights.”
“What is decisive in such cases is the exercise of physical power and control over the person in question.”
“It is clear that, whenever the state through its agents exercises control or authority over an individual, and thus jurisdiction, the state is under an obligation under art.1 to secure to that individual the rights and freedoms under s.1 of the Convention that are relevant to the situation of that individual. In this sense, therefore, the Convention rights can be ‘divided and tailored’.”
“In these exceptional circumstances … the United Kingdom, through its soldiers engaged in security operations in Basrah during the period in question, exercised authority and control over individuals killed in the course of such security operations, so as to establish a jurisdictional link between the deceased and the United Kingdom for the purposes ofart. 1 of the Convention .”
“The effect of para 137 of the Al-Skeini judgment is that this proposition, which informed much of the thinking of the House of Lords in Al-Skeini (HL) and of the majority in Catherine Smith, that the rights in section 1 of the Convention are indivisible, is no longer to be regarded as good law. The extraterritorial obligation of the contracting state is to ensure the observance of the rights and freedoms that are relevant to the individual who is under its agents' authority and control, and it does not need to be more than that.”
“The concept of dividing and tailoring goes hand in hand with the principle that extraterritorial jurisdiction can exist whenever a state through its agents exercises authority and control over an individual. The court need not now concern itself with the question whether the state is in a position to guarantee Convention rights to that individual other than those it is said to have breached.”
“In my judgment it is quite impossible to hold that the UK, although an occupying power for the purposes of the Hague Regulations and Geneva IV, was in effective control of Basra City for the purposes of ECHR jurisprudence at the material time. If it had been, it would have been obliged, pursuant to the Banković judgment, to secure to everyone in Basra City the rights and freedoms guaranteed by the ECHR. One only has to state that proposition to see how utterly unreal it is.”
“On the one hand, it sits ill in the mouth of a state which has helped to displace and dismantle by force another nation's civil authority to plead that, as an occupying power, it has so little control that it cannot be responsible for securing the population's basic rights. On the other, the fact is that it cannot: the invasion brought in its wake a vacuum of civil authority which British forces were and still are unable to fill. On the evidence before the Court they were, at least between mid-2003 and mid-2004, holding a fragile line against anarchy.”
“the statement of facts in Al-Skeini included material which tended to demonstrate that the United Kingdom was far from being in effective control of the south-eastern area which it occupied, and this was also the finding of the Court of Appeal ...”
“On the morning of29 April 2003 two Warrior armoured vehicles containing seven soldiers from 1BW (Black Watch) were at the Andalus petrol station to support three staff and three auxiliary policemen in implementing the supply of rationed fuel to Iraqi civilians.”
“even though the applicant sustained her injuries in territory over which Turkey exercised no control, the opening of fire on the crowd from close range, which was the direct and immediate cause of those injuries, had been such that the applicant should be regarded as “within [the] jurisdiction” of Turkey within the meaning of art. 1.”
“Of course, if the person holding the gun is in such control of the situation that he is literally able to hold the gun to the individual’s head, it may be that the individual is in fact detained.”
“I do not believe that the principles to be derived from the Strasbourg jurisprudence, conflicting as some of them are, clearly demonstrate that the contention is correct. The proper tribunal to resolve this issue is the Strasbourg Court itself, and it will have the opportunity to do so when it considers Al-Skeini.”
“(2) Whether there is an investigative obligation which arises in all handover (Soering-type) cases where there is an arguable breach of the principle that detainees will not be transferred if, at the time of transfer, there was a real risk of torture or serious mistreatment. (3) If the answer to (2) is yes, what is the content of that investigative obligation? (4) If the answer to (2) is no, are there other circumstances in which an investigative duty arises in handover (Soering-type) cases and if so, what are the features necessary to trigger that investigative duty? What would the content of any such investigative obligation be?”
“1. No State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”
“The nature of the right safeguarded underarticle 3 of the Convention has implications for art. 13. Given the fundamental importance of the prohibition of torture … and the especially vulnerable position of torture victims, art. 13 imposes, without prejudice to any other remedy available under the domestic system, an obligation on States to carry out a thorough and effective investigation of incidents of torture. Accordingly, as regards art. 13, where an individual has an arguable claim that he has been tortured by agents of the State, the notion of an ‘effective remedy’ entails, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible and including effective access for the complainant to the investigatory procedure. It is true that no express provision exists in the Convention such as can be found in art. 12 of [UNCAT], which imposes a duty to proceed to a ‘prompt and impartial’ investigation whenever there is a reasonable ground to believe that an act of torture has been committed. However, in the Court’s view, such a requirement is implicit in the notion of an ‘effective remedy’ under art. 13...”
“where an individual raises an arguable claim that he has been seriously ill-treated by the police or other such agents of the State unlawfully and in breach of art. 3, that provision, read in conjunction with the State’s general duty underart. 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in … [the] Convention”, requires by implication that there should be an effective official investigation.”
“This investigation, as with that under art. 2, should be capable of leading to the identification and punishment of those responsible ... If this were not the case, the general legal prohibition of torture and inhuman and degrading treatment and punishment, despite its fundamental importance, would be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity.”
“The Assenov case ... was distinctly concerned to establish a duty to conduct “an effective official investigation” after a complaint of article 3 ill-treatment had arisen. Such an adjectival duty is very well established in the context ofart. 2 of the ECHR (the right to life). But the Assenov case is not authority for the very different proposition thatart. 3 of the ECHR includes an obligation to investigate a future risk of substantive violation …”
“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.”
“an extra-judicial transfer of persons from one jurisdiction or State to another, for the purposes of detention and interrogation outside the normal legal system, where there was a real risk of torture or cruel, inhuman or degrading treatment.”
“It became obvious at a certain stage that the applicant had a prima facie case underart. 3 of the Convention that warranted an effective investigation at the domestic level. While there may have been some doubt immediately after the applicant’s abduction in Moscow by unidentified persons as to the role played by Russian State agents in the incident, the complaint about his ensuing transfer to Tajikistan through a Moscow airport in breach of all legal procedures should have triggered the authorities’ utmost attention, inasmuch as the applicant’s representatives claimed that State agents had been actively or passively involved in that operation.”
“1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture. 2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.”
“Aid or assistance in the commission of an internationally wrongful act. A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (a) that State does so with knowledge of the circumstances of the internationally wrongful act; and (b) the act would be internationally wrongful if committed by that State.”
“(5) Does an investigative obligation arise in respect of all cases of detention which are arguably in violation ofarticle 5 ECHR ? (6) If the answer to (5) is yes, what is the content of that investigative obligation? (7) If the answer to (5) is no, are there other circumstances in which an investigative duty arises in cases involving arbitrary detention in violation of article 5 and if so, what are the features necessary to trigger that investigative duty? What would the content of any such investigative obligation be?”
“The systematic practice of disappearance is of the nature of a crime against humanity and constitutes a violation of the right to recognition as a person before the law, the right to liberty and security of the person, the right not to be subjected to torture: it also violates or constitutes a grave threat to the right to life.”
“1. ‘Enforced disappearances’ entail a deprivation of liberty, refusal to acknowledge the deprivation of liberty or concealment of the fate and the whereabouts of the disappeared person and the placing of the person outside the protection of the law. 2. The Parliamentary Assembly unequivocally condemns enforced disappearance as a very serious human rights violation on a par with torture and murder, and it is concerned that this humanitarian scourge has not yet been eradicated, even in Europe.”
“For the purposes of this Convention, ‘enforced disappearance’ is considered to be the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorisation, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.”
“1. Each State Party shall ensure that any individual who alleges that a person has been subjected to enforced disappearance has the right to report the facts to the competent authorities, which shall examine the allegation promptly and impartially and, where necessary, undertake without delay a thorough and impartial investigation. … 2. Where there are reasonable grounds for believing that a person has been subjected to enforced disappearance, the authorities referred to in paragraph 1 of this article shall undertake an investigation, even if there has been no formal complaint.”
“the unacknowledged detention of an individual is a complete negation of these guarantees and a most grave violation of article 5. Having assumed control over that individual it is incumbent on the authorities to account for his or her whereabouts. For this reason, article 5 must be seen as requiring the authorities to take effective measures to safeguard against the risk of disappearance and to conduct prompt effective investigation into an arguable claim that a person has been taken into custody and has not been seen since.”
“[the applicant’s] detention … was not logged and there exists no official trace of their subsequent whereabouts or fate. This fact in itself must be considered a most serious failing since it enables those responsible for the act of deprivation of liberty to conceal their involvement in a crime, to cover their tracks and to escape accountability for the fate of the detainee. In the view of the Court, the absence of holding data recording such matters as the date, time and location of detention, the name of the detainee as well as the reasons for the detention and the name of the person effecting it must be seen as incompatible with the very purpose ofarticle 5 of the Convention .”
“where the relatives of a person have an arguable claim that the latter has disappeared at the hands of the authorities, the notion of an effective remedy for the purpose of article 13 entails, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible and including effective access for the relatives to the investigatory procedure. Seen in these terms, the requirements of article 13 are broader than a Contracting State’s obligation under article 5 to conduct an effective investigation into the disappearance of a person who has been shown to be under their control and for whose welfare they are accordingly responsible.”
“… there has been a continuing violation ofarticle 5 of the Convention by virtue of the failure of the authorities of the respondent State to conduct an effective investigation into the whereabouts and fate of the missing Greek-Cypriot persons in respect of whom there is an arguable claim that they were in custody at the time they disappeared.”
“The Court emphasises in this connection that the unacknowledged detention of an individual is a complete negation of these guarantees and a most grave violation of article 5. Having assumed control over an individual, the authorities have a duty to account for his or her whereabouts. For this reason, art. 5 must be seen as requiring the authorities to take effective measures to safeguard against the risk of disappearance and to conduct a prompt effective investigation into an arguable claim that a person has been taken into custody and has not been seen since (see Kurt v. Turkey).”
“Isarticle 5 ECHR modified or displaced by international humanitarian law during an international armed conflict?”
“(8) Does UNCAT and/or customary international law (CIL) give rise to domestically enforceable legal rights? (9) If the answer to (8) is yes, (a) When do those rights arise i.e. is there any limitation on the scope of those rights? (b) Do those rights make a difference to the scope of an investigative obligation arising under the ECHR; and if so in what respect? (i) If so, what is the content of that investigative obligation? (ii) Does the scope of any investigative obligation go beyond the scope of any investigative obligation which would arise underarticle 3 ECHR ; and if so, in what respects?”
“1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. 2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture. 3. An order from a superior officer or a public authority may not be invoked as a justification of torture.”
“Article 10 1. Each State Party shall ensure that education and information regarding the prohibition against torture are fully included in the training of law enforcement personnel, civil or military, medical personnel, public officials and other persons who may be involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment. 2. Each State Party shall include this prohibition in the rules or instructions issued in regard to the duties and functions of any such person. Article 11 Each State Party shall keep under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment in any territory under its jurisdiction, with a view to preventing any cases of torture.”
“Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.”
“The reference to “any territory” in article 2, like that in articles 5, 11, 12, 13 and 16, refers to prohibited acts committed not only onboard a ship or aircraft registered by a State party, but also during military occupation or peacekeeping operations and in such places as embassies, military bases, detention facilities or other areas over which a state exercises factual or effective control.”
“The position in England is not that custom forms part of the common law (how can foreign states of whatever legal tradition make the common law?), but that it is a source of English law that the courts may draw upon as required.”
“At a late stage of the appeal … I did wonder whether customary international law may have a direct role to play in the argument about the development of the common law.”
“The Convention ... cannot be interpreted in a vacuum. The Court must be mindful of the Convention’s special character as a human rights treaty, and it must also take the relevant rules of international law into account. The Convention should so far as possible be interpreted in harmony with other rules of international law of which it forms part.”
“In our judgment, the article 2 investigative duty of the State in the case of deaths in custody is only discharged by a full, fair and fearless investigation accessible to the victim’s families and to the public into each death, which must look into and consider the immediate and surrounding circumstances in which each of the deaths occurred. These circumstances will ordinarily include the instructions, training and supervision given to soldiers involved in the interrogation of those who died in custody in the aftermath of the invasion. It should also identify the culpable and discreditable conduct of those involved, including their acts, omissions as well as identifying the steps needed for the rectification of dangerous practices and procedures.”
“(10) Can an investigative obligation under articles 2 (or 3) arise in circumstances where there was no arguable substantive breach of articles 2 (or 3) of the ECHR; and if so, in what category of case?”