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Counter-Terrorism - International Law and Practice edited by Salinas de Frías, Ana María; Samuel, Katja; White, Nigel D (1st January 2012)

Editorial Note

Nigel D White

From: Counter-Terrorism: International Law and Practice

Edited By: Ana María Salinas de Frías, Katja Samuel, Nigel D White

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 19 April 2019

Since the book has been well advanced in its production phase, thereby not permitting any significant changes to its text, there have been a number of important developments which are noted here and in which light relevant sections of individual chapters should be read.

The first are two important judgments of the European Court of Human Rights (ECtHR) given in the cases of Al-Skeini and others v United Kingdom (App No 55721/07) ECtHR 7 July 2011 and Al-Jedda v United Kingdom (App No 27021/08) ECtHR 7 July 2011 regarding the extra-territorial jurisdictional reach of the ECHR.

The case of Al-Skeini concerned the deaths of six Iraqi civilians in Basra in 2003 at a time when the UK was an occupying power. Previously, the UK House of Lords had interpreted the extra-territorial jurisdictional reach of the European Convention on Human Rights (ECHR) in such a way that liability arose in relation to the death of only one of the civilians, Baha Mousa, who died in the hands of British servicemen whilst in military detention. The families of the other five civilians, who had been killed by British soldiers during military operations, complained to the ECtHR that no independent or thorough investigation had been carried out in relation to the circumstances of their deaths. The ECtHR disagreed with such a narrow interpretation of the ‘effective control’ test for establishing jurisdiction under the ECHR in circumstances where civilians had been killed in the course of the exercise of physical power and control by British soldiers engaged in security operations, even in a state not party to the ECHR such as Iraq. In doing so, it reaffirmed its own long standing principles (and clarified confusion regarding the Convention’s jurisdictional reach post Bankovic and others v Belgium and 16 other Contracting States (App No 52207/99) (2007) 44 EHRR SE5) that liability under the ECHR for human rights violations is not determined by the physical location where they occur, but rather by whether the breaches occurred under the power, authority, and control of a Contracting Party to the ECHR. It further supported the contention of the victims’ families that no independent and effective investigation had been carried out by the UK authorities.

Similarly, in Al-Jedda—which involved the indefinite detention without charge of a dual British/Iraqi citizen in a Basra facility run by British forces—the ECtHR rejected the approach of the UK House of Lords which in 2007 had held that the detention of Mr Al-Jedda was lawful because the UK Government had been authorized so to act by UN Security Council Resolution 1546 (8 June 2004). (p. xiv) Instead, the ECtHR held that the Security Council Resolution did not displace the UK Government’s obligations to protect the right to liberty under Article 5 ECHR, reflecting its broader interpretative approach to jurisdiction.

Another recent development is the publication of the UK’s Report of the Baha Mousa Public Inquiry on 8 September (〈http://www.bahamousainquiry.org/report/index.htm〉 accessed 28 September 2011). The Inquiry was set up by the British Government to investigate and report on the circumstances surrounding the death of the Iraqi civilian, Baha Mousa, in 2003 and the treatment of those detained with him, by British military personnel. The Report was highly critical of attitudes towards and the treatment of detainees, including the ‘gratuitous violence’ directed towards Baha Mousa which eventually led to his death. Similarly, it criticized the ‘corporate failure’ by the Ministry of Defence to develop or disseminate clear doctrine and policies regarding the correct handling of prisoners of war, not least in terms of lawful and unlawful interrogation methods (including details of the banned ‘five techniques’ of stress positions, deprivation of sleep, food or water, and hooding). The Report contains 73 recommendations for the UK Ministry of Defence regarding changes to operating instructions for handling civilian detainees, the role of medical personnel, general and specific training for soldiers, including tactical questioning and interrogation training. The Inquiry is a recent example of steps that may be taken to ensure greater rule of law compliance in counter-terrorism operations, not least in terms of affirming established human rights norms and prohibited forms of ill treatment; and increased accountability of Government and its officials and agents, although to date corresponding criminal liability has only been established in relation to one of the perpetrators of the ill treatment (Corporal Payne).

In reaction to the Baha Mousa Report, British military doctrine was revised and re-promulgated by the Ministry of Defence in October 2011 as UK Ministry of Defence, ‘Joint Doctrine Publication—Captured Persons (CPERS)’ (October 2011) JDP 1–10 (2nd edn). This streamlines and simplifies procedures regarding all CPERS, retaining the categories of POW, RP (IAC only), internees, and detainees. Article 5 tribunals (IAC only) or analogous tribunals must be convened in all cases of doubt as to status; the POW Determination of Status Regulations 1958 are now officially ‘obsolete’, but new regulations to replace them have not yet been drawn up; all CPERS must at all times be treated consistently with Article 75 API (see especially Chapter 17).

Finally, in June 2011, the Organization of the Islamic Conference changed its name to the Organization of Islamic Cooperation, although it has retained its original abbreviated name form of ‘OIC’. (See ‘Astana Declaration: Peace, Cooperation and Development’, adopted by the thirty-eighth Session of the OIC Council of Foreign Ministers (Astana—Republic of Kazakhstan, 28–30 June 2011)).

November 2011