Article 1: States’ duty “to secure to everyone within their jurisdiction the rights and freedoms defined in [the] Convention”.
Everyone on British soil since 1772:
He who is subject to English law is entitled to its protection. This principle has been in the law at least since Lord Mansfield freed ‘the black’ in Somerset’s Case (1772, here).
So repeated the great judge Lord Scarman during the Khawaja and Khera (para.63) case.
However from 2003 the Afghanistan and Iraq wars raised significant questions about the geographical remit of the European Convention, and the implications of the HR Act’s Section 6 obligation on state organisations to work according to the Convention rights.
- Baha Mousa and the fight for an independent inquiry into civilian deaths in UK custody (Rights to Life and Prohibition on Torture and Degradation also apply).
In 2004 Amnesty International and other NGOs supported the families of Iraqis in demanding an independent investigation into the death of hotel receptionist Baha Mousa and the severe wounding of other civilians imprisoned on the British base in Basra. Baha Mousa had 93 wounds. Initially the Ministry of Defence’s (MOD’s) Iraq Historic Allegations Team (IHAT) was staffed with only military personnel, however the House of Lords ruled that for certain Rights and in special circumstances the remit of the Convention could extend beyond European soil, including to situations where the UK had authority and control. The death violated Baha Mousa’s Right to Life and the severe woundings violated the European Convention Prohibition on Degrading Treatment of Mousa and 8 other Iraqis, and both violations broke the HR Act Section 6 requirement that state organisations work compliantly with the rights. http://www.bailii.org/uk/cases/UKHL/2007/26.html
After the NGOs’ 5 years step by step struggle the truly independent Gage Inquiry opened in 2009. It criticised the MOD’s failure to train soldiers regarding the Convention Rights, and reported that the weekend these Iraqis died there had been:
… an appalling episode of serious, gratuitous violence on civilians which resulted in the death of one man and injuries to 9 others. This contrasted starkly with the criminal trial of the same soldiers, which found only one of them guilty.
Discussion of Gage Inquiry
The MOD compensated those9 families and by 2016 has compensated many more. However the Prime Minster has now voiced concerns about false claims and it seems likely that the question of HR responsibility beyond British soil will be a target should the process of HR Act repeal and installation of a potentially weaker Bill of Rights get off the ground. See: Civilian injuries Iraq – 2016 situation for discussion of 2016 UK court developments re military HR responsibilities when in power beyond Europe.
- Violations and alleged violations of the Right to Life of UK soldiers killed in Iraq
The situation regarding the MOD’s duty of care to soldiers is also complex. Jason Smith died of heat stroke on-base in Iraq, but the Supreme Court ruled that the MOD owed no duty of care in respect of capricious weather and that the Convention did not apply in this circumstance. However Phillip Hewitt and Lee Ellis were killed when their Snatch Land Rovers were blown up by a roadside bomb (an IED) which their vehicles had not been equipped to detect. Their lawyers argued against the MOD that it had a duty of care and the MOD argued that combat immunity absolved them from this.
For these circumstances the Supreme Court ruled that the MOD could owe a duty of care to soldiers even though they were away from the base where the UK had control, but the court also drew attention to the discretion the European Convention allows states in respect of the Right to Life, and returned the cases to the High Court so the evidence could be assessed.
The families await this hearing. However the Chilcott Report into the Iraq war records that the MOD was slow to respond to the developing threat of IEDs in Iraq. (Chilcot Report Executive Summary $821)