Human Rights Imperialism
Human Rights Imperialism
August 16, 2011
The Grand Chamber of the European Court of Human Rights (ECHR) has recently issued judgments in two cases involving British military operations in Iraq that directly impact the ability of the United Kingdom and other signatories to the European Convention on Human Rights to operate militarily overseas without the ECHR asserting jurisdiction and holding signatories to account under the Convention.
Abdul al-Jedda was a dual Iraqi/British national who travelled to Iraq in 2004. After having been detained and released in the United Arab Emirates, he was detained by British forces for security reasons operating outside Basra under United Nations Security Resolution 1546. Al-Jedda was accused of being personally responsible for recruiting terrorists to operate in Iraq against Coalition forces, helping and conspiring with a terrorist explosives expert to travel to Iraq and conduct attacks against Coalition forces, and conspiring with an Islamic terrorist cell to smuggle high tech denotation equipment into Iraq. The evidence against al-Jedda ultimately led the British government to strip him of his citizenship. He was detained by the British in Iraq for three years but was not charged with any crime.
Hazim Juam’aa Gatteh al-Skeini, along with five other Iraqi civilians, were killed by British troops during the course of the occupation of Iraq. In the case of al-Skeini, he was shot and killed outside Basra by a British patrol responding to gunfire at night that came upon al-Skeini pointing a gun in their direction. The incident was reviewed by military authorities who ultimately cleared the soldiers finding that they properly followed the rules of engagement and that no further investigation was required.
The relatives of both al-Jedda and al-Skeini sued in English courts under the Human Rights Act, which incorporated the European Convention on Human Rights directly into the British legal system, citing unlawful deprivation of liberty and the obligation to respect human rights and the right to life, respectively. In both instances, the House of Lords ruled against the applicants citing the lack of jurisdiction over the events occurring in Iraq as they were outside the Convention region (those states that are signatories to the Convention). In the al-Skeini case, the House of Lords specifically stated that extraterritorial application of the Human Rights Act to Iraq would be “manifestly absurd” and would amount to “human rights imperialism.”
Both claimants subsequently filed cases before the ECHR which ruled in their favor. In al-Jedda, the court found that he had been arbitrarily detained as his detention did not meet any of the criteria enumerated under Article 5, the right to liberty. Further, the ECHR found that despite the fact that the British were operating under a UN Resolution specifically governing the post-invasion occupation of Iraq, that fact did no alleviate it to follow its treaty obligations.
In al-Skeini, the ECHR ruled that the United Kingdom had violated Article 2 of the Convention, by failing to conduct an adequate and independent investigation of the deaths of the Iraqi civilians. The Court dismissed the military investigation into the incidents as inadequate as the investigation was not conducted by authorities independent of the military.
In both instances, the ECHR asserted jurisdiction and the applicable extraterritorial application of the Convention by citing Britain’s “control” over southern Iraq after the fall of Saddam Hussein’s regime and before the constitution of a new government.
Both cases have serious implications for European and possibly other militaries operating outside their home theatres. The ECHR has made it clear that it is willing to assert extraterritorial jurisdiction to apply human rights norms to applicants who are not only not citizens of signatory states but who have never stepped foot within the Convention zone. Such ruling is sure to be cited and followed by other international and national tribunals attempting to assert jurisdiction under other international treaties never before thought to apply beyond a signatory’s territory and utilized by an opposing force. The end result is that militaries will now have to consider an additional subset of international norms while operating in hostile regions against foes who do not obey any of laws of war. Further, the ECHR has declared the European Convention on Human Rights will have pre-emptive authority even over United Nations Security Council Resolutions and other international obligations even if the violation occurred during active military obligations.
The closing of the concurrence by Judge Bonello in the al-Skeini decision captured the spirit of both decisions:
I confess to be quite unimpressed by the pleadings of the United Kingdom Government to the effect that exporting the European Convention on Human Rights to Iraq would have amounted to “human rights imperialism”. It ill behooves a State that imposed its military imperialism over another sovereign State without the frailest imprimatur from the international community, to resent the charge of having exported human rights imperialism to the vanquished enemy. It is like wearing with conceit your badge of international law banditry, but then recoiling in shock at being suspected of human rights promotion.
The cases can be seen in the light of continued aggressive expansion of human rights laws and the assertions of jurisdiction to places in the past courts have refused to tread. From the U.S. Supreme Court’s assertion of habeas corpus jurisdiction over Guantanamo Bay, to the International Criminal Court’s asserting jurisdiction over states that are non-signatories to the treaty, the international legal arena is increasingly a battlefield to wage lawfare.
Joshua Slomich is a Lawfare Project Fellow.