The claimant, a Pakistani national, detained by US Armed forces in Bagram in Afghanistan, sought a writ of habeas corpus. He had been first captured by British forces in Iraq in 2004, and transferred to US military under a Memorandum of Understanding as to his treatment, and held without trial ever since. A review board had decided in 2010 that he was no longer a threat.
Held: Bagram prison were he was now held was ‘a place said to be notorious for human rights abuses’.
Held: The claimant remained in the custody and control of the USA, and the defendant had no power to direct the claimant’s release.

Judges:

Laws LJ, Silber J

Citations:

[2011] EWHC 2008 (Admin)

Links:

Bailii

Statutes:

Geneva Conventions Act 1957 1(1)

Jurisdiction:

England and Wales

Cited by:

Appeal from – Rahmatullah v Secretary of State for Foreign and Commonwealth Affairs and Another CA 14-Dec-2011
The claimant appealed against refusal of an order for habeas corpus. He was held by US forces in Afghanistan. He had been captured by British Forces and handed over to US forces and held in Bagram.
Held: The appeal succeeded. . .
See Also – Rahmatullah v Secretary of State for Foreign and Commonwealth Affairs and Another (No 2) CA 23-Feb-2012
The claimant had been arrested by UK armed forces in Iraq, and pased to the US against an agreement as to his treatment. He had been taken instead.
Held: The UK needed to have in place an agreement which it could point to as showing that it . .
See Also – Rahmatullah v The Ministry of Defence QBD 19-Nov-2014
. .
See Also – Belhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
Lists of cited by and citing cases may be incomplete.

Armed Forces, Torts – Other, Human Rights

Updated: 12 April 2022; Ref: scu.442442

The Court set out the need to supervise soldiers to whom weapons were entrusted and to prevent suicides. Since the carrying of weapons was involved, the authorities could be expected to show particular diligence and adopt a suitable system for dealing with the matter in the case of soldiers with psychological problems.

Citations:

46252/99, [2006] ECHR 481

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 2

Jurisdiction:

Human Rights

Cited by:

Cited – Savage v South Essex Partnership NHS Foundation Trust (MIND intervening) HL 10-Dec-2008
The deceased had committed suicide on escaping from a mental hospital. The Trust appealed against a refusal to strike out the claim that that they had been negligent in having inadequate security.
Held: The Trust’s appeal failed. The fact that . .
Cited – Rabone and Another v Pennine Care NHS Trust CA 21-Jun-2010
The claimant’s daughter had committed suicide after being given home leave on a secure ward by the respondent mental hospital. A claim in negligence had been settled, but the parents now appealed refusal of their claim that the hospital had failed . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Armed Forces

Updated: 03 April 2022; Ref: scu.243767

ECHR Grand Chamber – Article 1
Jurisdiction of states
Territorial jurisdiction in relation to alleged killing of Iraqi national by Netherlands serviceman, member of Stabilisation Force in Iraq
Article 2
Positive obligations
Article 2-1
Effective investigation
Failure to hold effective investigation into alleged fatal shooting by Netherlands forces at vehicle checkpoint in southern Iraq: violation
Facts – From July 2003 until March 2005 Netherlands troops participated in the Stabilisation Force in Iraq (SFIR) in battalion strength. They were stationed in south-eastern Iraq as part of Multinational Division South-East (MND-SE), which was under the command of an officer of the armed forces of the United Kingdom. The participation of Netherlands forces in MND-SE was governed by a Memorandum of Understanding between the United Kingdom and the Kingdom of the Netherlands to which Rules of Engagement were appended. Both documents were classified confidential.
The applicant is the father of an Iraqi national who died in April 2004 from bullet wounds received when the car in which he was travelling as a passenger was shot at after passing a vehicle checkpoint at speed. The checkpoint was manned at the time by members of the Iraqi Civil Defence Corps (ICDC) who had been joined by a patrol of Netherlands soldiers who had arrived after the checkpoint had come under fire from another vehicle a few minutes before the incident in which the applicant’s son was killed. One of the Netherlands servicemen admitted to having fired several rounds at the car in which the applicant’s son was travelling, but claimed to have done so in self-defence, believing himself to have been under fire from the vehicle. Following an investigation by the Royal Military Constabulary (a branch of the Netherlands armed forces), the military public prosecutor concluded that the applicant’s son had presumably been hit by an Iraqi bullet and that the Netherlands serviceman had been acting in self-defence. He therefore closed the investigation. That decision was upheld by the Military Chamber of the Court of Appeal which found that the serviceman had reacted to friendly fire, mistaking it for fire from inside the car. In the circumstances, he had therefore acted within the confines of his instructions and the decision not to prosecute him could stand.
In his application to the European Court, the applicant complained under Article 2 of the Convention that the investigation was not sufficiently independent or effective. On 9 July 2013 a Chamber of the Court decided to relinquish jurisdiction in favour of the Grand Chamber.
Law – Article 1 (jurisdiction): The Government raised a preliminary objection that the complaints did not come within the territorial jurisdiction of the Netherlands since authority lay elsewhere: either with the United States and the United Kingdom as the designated ‘occupying powers’ under United Nations Security Council Resolution 1483, or with the United Kingdom alone as the ‘lead nation’ in south-eastern Iraq, holding command over the Netherlands contingent of SFIR.
Rejecting that argument, the Court observed that the fact of executing a decision or an order given by an authority of a foreign State was not in itself sufficient to relieve a Contracting State of its obligations under the Convention. The Netherlands were not divested of ‘jurisdiction’ solely by dint of having accepted the operational control of a United Kingdom commanding officer. Although the forces of nations other than the ‘lead nations’ took their day-to-day orders from foreign commanders, the formulation of essential policy – including, within the limits agreed in the form of Rules of Engagement appended to the relevant Memoranda of Understanding, the drawing up of distinct rules on the use of force – remained the reserved domain of the individual States who had supplied forces. The Netherlands assumed responsibility for providing security in the area where their troops were stationed, to the exclusion of other participating States, and retained full command over its contingent there. Nor was it relevant that the checkpoint where the shooting happened was nominally manned by ICDC personnel, as the ICDC was supervised by and subordinate to officers from the coalition forces. The Netherlands troops had thus not been at the disposal of any foreign power or under the exclusive direction or control of any other State.
The fatal shooting had taken place at a checkpoint manned by personnel under the command and direct supervision of a Netherlands army officer which had been set up in the execution of SFIR’s mission under United Nations Security Council Resolution 1483. It had thus occurred within the ‘jurisdiction’ of the Netherlands.
Conclusion: preliminary objection dismissed (unanimously).
Article 2 (procedural aspect): The Court did not accept the applicant’s allegation that the investigation had not been sufficiently independent. There was no evidence to show that the fact that the Royal Military Constabulary unit which had undertaken the initial investigation had shared their living quarters with the army personnel allegedly responsible for the death had in itself affected its independence to the point of impairing the quality of its investigations. Nor did the fact that the public prosecutor had relied to a large extent on the reports by the Royal Military Constabulary raise an issue, as public prosecutors inevitably relied on the police for information and support. As to the inclusion of a serving military officer as a judge of the Military Chamber of the Court of Appeal which upheld the decision not to prosecute the Netherlands army officer who had fired at the car, the chamber had been composed of two civilian members of the Court of Appeal and one military member. The military member was a senior officer qualified for judicial office who was not subject to military authority and discipline and whose functional independence and impartiality were the same as those of civilian judges. The Military Chamber had thus offered sufficient guarantees of independence for the purposes of Article 2.
However, as regards the effectiveness of the investigation, the Court found that it had been characterised by a number of shortcomings. Notably, the Military Chamber of the Court of Appeal had confined itself to establishing that the officer who had fired the shots had acted in self-defence, mistakenly reacting to friendly fire from across the road, without addressing certain aspects relevant to the question of the proportionality of the force used, in particular, whether more shots had been fired than necessary and whether the firing had ceased as soon as the situation had allowed. Documents containing information potentially relevant to those questions had not been made available to the Military Chamber at the time. In particular, an official record of statements from the ICDC personnel who had been guarding the checkpoint at the time of the shooting and a list of the names of ICDC personnel who had fired their weapons had not been added to the case file.
In addition, there had been a delay of more than six hours after the incident before the officer who had fired the shots was questioned. While there was no suggestion of foul play, the fact that no appropriate steps had been taken to reduce the risk of him colluding with other witnesses was another shortcoming. As regards the autopsy, it had been carried out without any qualified Netherlands official being present. The pathologist’s report was extremely brief, lacked detail and did not include any pictures. Finally, fragments of metal identified as bullet fragments taken from the body – potentially important material evidence – were not stored or examined in proper conditions and had subsequently gone missing in unknown circumstances.
In sum, the investigation into the circumstances surrounding the death had failed to meet the standards required by Article 2 in that documents containing important information were not made available to the judicial authorities and the applicant; no precautions were taken to prevent the officer who fired the shots from colluding, before he was questioned, with other witnesses; no attempt was made to carry out the autopsy under conditions befitting an investigation into the possible criminal responsibility of an agent of the State, and the resulting report was inadequate; and important material evidence was mislaid in unknown circumstances. It could not be said that these failings had been inevitable, even in the particularly difficult conditions that had prevailed in Iraq at the relevant time.
Conclusion: violation (unanimously).
Article 41: EUR 25,000 in respect of non-pecuniary damage.

47708/08 – Legal Summary, [2014] ECHR 1403
Bailii
European Convention on Human Rights

Human Rights, Armed Forces

Updated: 24 December 2021; Ref: scu.540003

The claimant alleged unlawful detention by British Armed forces in Iraq.

Leggatt J
[2014] EWHC 2714 (QB), [2014] CN 1592
Bailii
England and Wales

Armed Forces, Human Rights

Updated: 18 December 2021; Ref: scu.535494

The claimant challenged the policy of the Secretary of State for Defence from May 2012 authorising a technique known as challenge direct for use in the interrogation of persons captured by UK forces in situations of armed conflict. He sought judicial review on the ground that, on its face, it is unlawful in that it constitutes inhumane treatment, contrary inter alia to Common Article 3 of the Geneva Conventions of 1949, alternatively on the ground that the policy is unlawful because there is an unacceptable risk that it will be exercised in a way that is not lawful having regard to the circumstances in which it may be used.

Tomlinson, Lloyd Jones, Ryder LJJ
[2014] EWCA Civ 1087, [2014] WLR(D) 361
Bailii, WLRD
Geneva Conventions of 1949
England and Wales

Armed Forces, Human Rights

Updated: 18 December 2021; Ref: scu.535449

Supervision of execution of final judgments.

[2011] ECHR 1656, 42509/05
Bailii
European Convention on Human Rights
Citing:
Statement of Facts – Crompton v The United Kingdom 13-May-2008
(date) Statement of Facts . .
Judgment – Crompton v The United Kingdom ECHR 27-Oct-2009
The applicant had joined the Territorial Army as a pay and accounts clerk but was made redundant. He claimed redress in respect of his redundancy from his Commanding Officer. There then followed a prolonged series of proceedings which took eleven . .

Lists of cited by and citing cases may be incomplete.

Armed Forces, Human Rights

Updated: 04 December 2021; Ref: scu.526346

(date) Statement of Facts

[1999] ECHR 183, 42509/05
Bailii
European Convention on Human Rights
Cited by:
Statement of Facts – Crompton v The United Kingdom ECHR 27-Oct-2009
The applicant had joined the Territorial Army as a pay and accounts clerk but was made redundant. He claimed redress in respect of his redundancy from his Commanding Officer. There then followed a prolonged series of proceedings which took eleven . .
Statement of Facts – Crompton v The United Kingdom ECHR 14-Sep-2011
Supervision of execution of final judgments. . .

Lists of cited by and citing cases may be incomplete.

Armed Forces, Human Rights

Updated: 04 December 2021; Ref: scu.526345

ECHR Article 2
Positive obligations
Article 2-1
Life
Effective investigation
Article 2-2
Use of force
Bombing of civilian villages by military aircraft and subsequent failure to conduct an effective investigation: violation
Article 3
Inhuman treatment
Anguish and distress as a result of bombing of civilian villages: violation
Article 38
Article 38-1-a
Obligation to furnish all necessary facilities
Failure by respondent Government to provide essential piece of evidence: violation
Article 46
Individual measures
Respondent Government required to conduct investigation to identify those responsible for bombing of civilian villages in 1994
Facts – The applicants were Turkish nationals who lived and worked with their families in two villages in South-Eastern Turkey. The facts of the case were disputed between the parties. According to the applicants, in 1994 their villages were bombed by an aircraft belonging to the Turkish military. As a consequence, 34 of the applicants’ close relatives died, some of the applicants themselves were injured, and most of their property and livestock was destroyed. After the incident, all surviving villagers abandoned their villages and moved to different parts of the country. At the time of the European Court’s judgment, the villages were still uninhabited. In 1994, 1996 and 2006, local prosecutors concluded that the bombing of the villages had been carried out by members of the PKK. The Government upheld this view and maintained that there was no evidence of the State’s involvement in the incident. In 2012 the applicants submitted to the Court a flight log drawn up by the Civil Aviation Directorate, which referred to two flying missions carried out by the national Air Force on the same day the applicants’ villages were bombed.
Law – Preliminary objection (six-month rule): The respondent Government argued that the applicants had not complied with the six-month rule as they had lodged their application twelve years after the incident. Owing to the particular circumstances of the case, the Court accepted that the applicants had been unable to complain about the events to the national authorities for a long period after the attack on their villages. They had introduced official complaints with the national authorities as soon as they had had the possibility to do so, and had applied to the European Court shortly after they realised that the domestic remedies would not yield any results.
Conclusion: preliminary objection dismissed (unanimously).
Article 2
(a) Substantive aspect – The only argument the Government relied on to support their claim that the villages had been attacked by members of the PKK were statements taken from a number of villagers in 2008 and the decisions of some civilian and military prosecutors taken in 1994, 1996, and 2006. As for the witness statements, all but one of these had been given by people who were not resident in either of the applicants’ two villages and were not present at the incident. That evidence was thus merely hearsay. Moreover, most of those witnesses had been questioned by members of the military and not by an independent judicial authority. The only witness who had allegedly been in one of the two villages on the day of the incident and who had claimed that PKK members, rather than planes, had carried out the bombing, could not be considered independent or impartial as he was employed by the State as a village guard. As for the ensuing investigations, the files of the investigations conducted in 1994 and 1996 by civilian prosecutors did not contain any evidence to substantiate the PKK’s involvement in the attacks. Therefore, the conclusions reached by those prosecutors were baseless. As for the investigation carried out in 2006 by the criminal prosecutor, the Court found that it had been based on evidence that involved illogical reasoning and was subsequently proven incorrect. The Court could therefore not attach any importance to the conclusions reached by the prosecutors or consider that they supported the Government’s submissions.
As for the applicants’ allegation that the attack had been carried out by a military aircraft, the Court noted that the applicants had consistently maintained this account over a number of years. Further investigations by the prosecuting authorities in 2004 and 2005, based on eyewitness testimony, concluded that the villages had been bombed by an aircraft and not the PKK. In addition, the flight log drawn up by the Civil Aviation Directorate established that missions had been flown to the location of the villages at the time the applicants claimed the attack had occurred. In the light of this evidence, the Court concluded that a military aircraft belonging to the Turkish Air Force had conducted an aerial attack killing 33 of the applicants’ relatives and injuring three of the applicants themselves. In the Court’s view, an indiscriminate aerial bombing of civilians and their villages could not be acceptable in a democratic society or reconcilable with any of the grounds regulating the use of force set out in Article 2 – 2 of the Convention, the customary rules of international humanitarian law or any of the international treaties regulating the use of force in armed conflicts.
Conclusion: violation (unanimously).
(b) Procedural aspect – The investigation into the bombing was wholly inadequate and many important steps were omitted. For example, the prosecutors had not carried out any significant inquiry in the immediate aftermath of the bombing, and, once the incident had actually been looked into, the investigators were not independent, had formed baseless conclusions on extremely minimal investigations, and had attempted to withhold the investigation documents from the applicants. Most crucially, no investigation had been conducted into the flight log which constituted a key element in the possible identification and prosecution of those responsible. Having regard to the abundance of information and evidence showing that the applicants’ villages had been bombed by the Air Force, the Court concluded that the inadequacy of the investigation had been the result of the national investigating authorities’ unwillingness to officially establish the truth and punish those responsible.
Conclusion: violation (unanimously).
Article 3: It was not disputed that the applicants had witnessed the killings of their relatives and the destruction of their belongings, had had to deal with the consequence of the incident alone, and had been obliged to leave their place of residence. The bombing had been ordered and carried out without the slightest concern for human life by the pilots or by their superiors, who had then tried to cover it up by refusing to hand over the flight log. The national authorities had failed to offer even the minimum humanitarian assistance to the applicants in the aftermath of the bombing. In these circumstances, the Court considered that witnessing the killing of their close relatives, coupled with the authorities’ wholly inadequate and inefficient response in the aftermath of the events had caused the applicants suffering that had attained the threshold of inhuman and degrading treatment. In addition, the bombing of their homes had deprived them and their families of shelter and support and obliged them to leave the place where they and their friends had been living. The anguish and distress caused by that destruction was sufficiently severe to constitute inhuman treatment within the meaning of Article 3.
Conclusion: violation (unanimously).
Article 38: Despite the fact that the Government had been expressly requested by the Court to submit a copy of the entire investigation file in 2009, they had not submitted the relevant flight log or mentioned its existence in their observations. This piece of information had been supplied to the Court by the applicants in June 2012, after the Government had already submitted their observations on the case. The Government had not disputed the authenticity of the flight log, argued that they were unaware of its existence, or provided any explanation as to why it had not previously been supplied to the Court. Bearing in mind the importance of a respondent Government’s co-operation in Convention proceedings, the failure to provide the flight log had amounted to a failure to comply with the obligation under Article 38 to provide all necessary facilities to assist the Court in its task of establishing the facts.
Conclusion: violation (unanimously).
Article 46: Having regard to the fact that the investigation file was still open at the national level and to the documents in its possession, the Court considered that new investigatory steps should be taken by the national authorities under the supervision of the Committee of Ministers. These steps should include carrying out an effective criminal investigation, with the help of the flight log, with a view to identifying and punishing those responsible for the bombing of the applicants’ villages.
Article 41: Sums ranging from EUR 15,000 to EUR 250,000 in respect of non-pecuniary damage.
(See also Akdivar and Others v. Turkey, 21893/93, 16 September 1996; Timurtas v. Turkey, 23531/94, 13 June 2000; and Musayev and Others v. Russia, 57941/00, 58699/00 and 60403/00, 26 July 2007, Information Note 99)

Guido Raimondi, P
23502/06 – Chamber Judgment, [2013] ECHR 1116, 23502/06 – Legal Summary, [2013] ECHR 1317, [2015] ECHR 8
Bailii, Bailii, Bailii
European Convention on Human Rights

Human Rights, Armed Forces

Updated: 28 November 2021; Ref: scu.519526