The Human Rights Act 1998 Applicability to UK Armed Forces Overseas: a conflict of Jurisdictions?

The General Rule on Extraterritoriality  UK Statutes apply only to UK  Exception: Extraterritoriality: Army Act 1955,s.70 (Armed Forces Act s.42); OAPA 1861,s.9 (murder/manslaughter);International Criminal Court Act 2001, following treaty establishing the International Criminal Court (Rome Statute 1998).  Compare universal jurisdiction: Geneva Conventions Act 1957 (as amended), s.1; Criminal Justice Act 1988, s.134 (torture) R v Zardad (2005).  Multi-State jurisdiction possibilities: Iraq

The ECHR 1950 and the HRA 1998  HRA 1998 ‘to bring rights home’.  Which rights have been ‘brought home’? Article 1?  Are the rights ‘brought home’ the same as those under the ECHR?

Why is the bombing of a TV station in Belgrade relevant?  Bankovic v Belgium [and other NATO States] (2002) ILM 517.  Article 1 ‘within jurisdiction’  ‘Effective control of the relevant territory and its inhabitants abroad as a consequence of military action…exercises all or some of the public powers normally to be exercised by that Government.’  But ‘legal space of the Contracting States’.

Other Cases  Issa v Turkey ECtHR 30/3/2005  Ocalan v Turkey ECtHR 12/5/2005  Saddam Hussein v 21 States (2006); UN Security Council Resolution 1546 (2004)  Distinction between State agent authority and effective control of an area.

Iraq ‘brought home’  Al Skeini et al v Secretary of State for Defence [2006] EWCA Civ 1609  To be heard by the House of Lords later this year  Article 1 of the ECHR and the HRA 1998, s.7.  Individuals (a) detained by UK armed forces; (b) shot in their houses or in the streets.

Conclusions  Likely that HoL will conclude that HRA 1998 applies to at least those arrested by British soldiers.  Such individuals will be able to rely on HRA 1998, s.7.  If HRA applies, Art.2 investigations  Even if HRA 1998 does not apply to individuals, soldiers liable to English criminal law: rules of engagement.  Not liable to Iraqi law because status of forces agreement.