CASE OF AL-SKEINI AND OTHERS v. THE UNITED KINGDOM

Preliminary objections dismissed (estoppel, non-exhaustion of domestic remedies);Preliminary objection joined to merits and dismissed (lack of jurisdiction);Preliminary objection joined to merits and partially dismissed (victim);Violation of Art. 2 (procedural aspect);Non-pecuniary damage - award

Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Françoise Tulkens;George Nicolaou;Giovanni Bonello;Isabelle Berro-Lefèvre;Jean-Paul Costa;Josep Casadevall;Lech Garlicki;Ledi Bianku;Luis López Guerra;Mihai Poalelungi;Nicolas Bratza;Peer Lorenzen

The facts of the case may be summarised as follows .

On DATE ORG , acting under LAW , adopted Resolution CARDINAL . The ORG decided , inter alia , that GPE had been and remained in material breach of its obligations under previous ORG resolutions to disarm and to cooperate with ORG and ORG weapons inspectors . Resolution CARDINAL decided to afford GPE a final opportunity to comply with its disarmament obligations and set up an enhanced inspection regime . It requested the Secretary - General of ORG immediately to notify GPE of the ORG and demanded that GPE cooperate immediately , unconditionally , and actively with the inspectors . Resolution CARDINAL concluded by recalling that ORG had “ repeatedly warned GPE that it w[ould ] face serious consequences as a result of its continued violations of its obligations ” . ORG decided to remain seised of the matter .

On DATE a Coalition of armed forces under unified command , led by GPE with a large force from GPE and small contingents from GPE , GPE and GPE , commenced the invasion of GPE . By DATE the NORP had captured GPE and by DATE GPE troops had gained control of GPE . Major combat operations in GPE were declared complete on DATE . Thereafter , other GPE sent personnel to help with the reconstruction effort .

On DATE ORG of GPE and GPE at ORG addressed a joint letter to the President of ORG , which read as follows :

“ GPE , GPE and GPE and Coalition partners continue to act together to ensure the complete disarmament of GPE of weapons of mass destruction and means of delivery in accordance with ORG resolutions . The ORG participating in the Coalition will strictly abide by their obligations under international law , including those relating to the essential humanitarian needs of the people of GPE . We will act to ensure that GPE ’s oil is protected and used for the benefit of the NORP people .

In order to meet these objectives and obligations in the post - conflict period in GPE , GPE , GPE partners , acting under existing command and control arrangements through ORG , have created ORG , which includes ORG , to exercise powers of government temporarily , and , as necessary , especially to provide security , to allow the delivery of humanitarian aid , and to eliminate weapons of mass destruction .

GPE , GPE partners , working through ORG , shall , inter alia , provide for security in and for the provisional administration of GPE , including by : deterring hostilities ; maintaining the territorial integrity of GPE and securing GPE ’s borders ; securing , and removing , disabling , rendering harmless , eliminating or destroying ( a ) all of GPE ’s weapons of mass destruction , ballistic missiles , unmanned aerial vehicles and all other chemical , biological and nuclear delivery systems ; and ( b ) all elements of GPE ’s programme to research , develop , design , manufacture , produce , support , assemble and employ such weapons and delivery systems and subsystems and components thereof , including but not limited to stocks of chemical and biological agents , nuclear - weapon - usable material , and other related materials , technology , equipment , facilities and intellectual property that have been used in or can materially contribute to these programmes ; in consultation with relevant international organisations , facilitating the orderly and voluntary return of refugees and displaced persons ; maintaining civil law and order , including through encouraging international efforts to rebuild the capacity of the NORP civilian police force ; eliminating all terrorist infrastructure and resources within GPE and working to ensure that terrorists and terrorist groups are denied safe haven ; supporting and coordinating de - mining and related activities ; promoting accountability for crimes and atrocities committed by the previous NORP regime ; and assuming immediate control of NORP institutions responsible for military and security matters and providing , as appropriate , for the demilitarisation , demobilisation , control , command , reformation , disestablishment , or reorganisation of those institutions so that they no longer pose a threat to the NORP people or international peace and security but will be capable of defending GPE ’s sovereignty and territorial integrity .

GPE , GPE partners recognise the urgent need to create an environment in which the NORP people may freely determine their own political future . To this end , GPE , GPE partners are facilitating the efforts of the NORP people to take the first steps towards forming a representative government , based on the rule of law , that affords fundamental freedoms and equal protection and justice under law to the people of GPE without regard to ethnicity , religion or gender . GPE , GPE partners are facilitating the establishment of representative institutions of government , and providing for the responsible administration of the NORP financial sector , for humanitarian relief , for economic reconstruction , for the transparent operation and repair of GPE ’s infrastructure and natural resources , and for the progressive transfer of administrative responsibilities to such representative institutions of government , as appropriate . Our goal is to transfer responsibility for administration to representative NORP authorities as early as possible .

ORG has a vital role to play in providing humanitarian relief , in supporting the reconstruction of GPE , and in helping in the formation of an NORP interim authority . GPE , GPE partners are ready to work closely with representatives of ORG and its specialised agencies and look forward to the appointment of a special coordinator by the Secretary - General . We also welcome the support and contributions of member GPE , international and regional organisations , and other entities , under appropriate coordination arrangements with ORG .

We would be grateful if you could arrange for the present letter to be circulated as a document of ORG .

( Signed ) PERSON Permanent Representative of GPE

( Signed ) PERSON Permanent Representative of the GPE ”

As mentioned in the above letter , the occupying GPE , acting through ORG , created ORG ) to act as a “ caretaker administration ” until an NORP government could be established . It had power , inter alia , to issue legislation . On DATE the GPE Secretary of Defence , PERSON , issued a memorandum formally appointing Ambassador PERSON as Administrator of the CPA with responsibility for the temporary governance of GPE . In CPA Regulation No . CARDINAL , dated DATE , Ambassador PERSON provided as follows :

“ Pursuant to my authority as Administrator of ORG ) , relevant ORG resolutions , including LAW ( DATE ) , and the laws and usages of war ,

I hereby promulgate the following :

Section CARDINAL

ORG

( CARDINAL ) The CPA shall exercise powers of government temporarily in order to provide for the effective administration of GPE during the period of transitional administration , to restore conditions of security and stability , to create conditions in which the NORP people can freely determine their own political future , including by advancing efforts to restore and establish national and local institutions for representative governance and facilitating economic recovery and sustainable reconstruction and development .

( CARDINAL ) The CPA is vested with all executive , legislative and judicial authority necessary to achieve its objectives , to be exercised under relevant ORG resolutions , including LAW ( DATE ) , and the laws and usages of war . This authority shall be exercised by the CPA Administrator .

( CARDINAL ) As the Commander of Coalition Forces , the Commander of ORG shall directly support the CPA by deterring hostilities ; maintaining GPE ’s territorial integrity and security ; searching for , securing and destroying weapons of mass destruction ; and assisting in carrying out Coalition policy generally .

Section CARDINAL

The Applicable Law

Unless suspended or replaced by the CPA or superseded by legislation issued by democratic institutions of GPE , laws in force in GPE as of DATE shall continue to apply in GPE in so far as the laws do not prevent the CPA from exercising its rights and fulfilling its obligations , or conflict with the present or any other LAW issued by the CPA .

The CPA administration was divided into regional areas . CPA LOC was placed under GPE responsibility and control , with a ORG . It covered the southernmost CARDINAL of GPE ’s CARDINAL provinces , each having a governorate coordinator . GPE troops were deployed in the same area . GPE was represented at CPA headquarters through ORG . According to the Government , although GPE and his ORG sought to influence CPA policy and decisions , GPE personnel had no formal decision - making power within the ORG . All the CPA ’s administrative and legislative decisions were taken by Ambassador PERSON .

United Nations Security Council Resolution DATE referred to by Ambassador PERSON in CPA Regulation No . CARDINAL was actually adopted DATE , on CARDINAL DATE . It provided as follows :

“ ORG ,

Recalling all its previous relevant resolutions ,

Reaffirming the sovereignty and territorial integrity of GPE ,

Reaffirming also the importance of the disarmament of NORP weapons of mass destruction and of eventual confirmation of the disarmament of GPE ,

Stressing the right of the NORP people freely to determine their own political future and control their own natural resources , welcoming the commitment of all parties concerned to support the creation of an environment in which they may do so as soon as possible , and expressing resolve that the day when NORP govern themselves must come quickly ,

Encouraging efforts by the people of GPE to form a representative government based on the rule of law that affords equal rights and justice to all NORP citizens without regard to ethnicity , religion , or gender , and , in this connection , recalls Resolution DATE ) of DATE ,

Welcoming the first steps of the NORP people in this regard , and noting in this connection the DATE GPE statement and the DATE GPE statement ,

Resolved that ORG should play a vital role in humanitarian relief , the reconstruction of GPE , and the restoration and establishment of national and local institutions for representative governance ,

Noting the letter of CARDINAL DATE from ORG GPE and GPE and GPE to the President of ORG ( S/CARDINAL/CARDINAL ) and recognising the specific authorities , responsibilities , and obligations under applicable international law of GPE under unified command ( the ‘ Authority’ ) ,

Noting further that other GPE that are not Occupying Powers are working now or in the future may work under the ORG ,

Welcoming further the willingness of member GPE to contribute to stability and security in GPE by contributing personnel , equipment , and other resources under the ORG ,

Concerned that many NORP and Third - State Nationals still are not accounted for since DATE ,

Determining that the situation in GPE , although improved , continues to constitute a threat to international peace and security ,

Acting under LAW of ORG ,

Appeals to member GPE and concerned organisations to assist the people of GPE in their efforts to reform their institutions and rebuild their country , and to contribute to conditions of stability and security in GPE in accordance with this Resolution ;

Calls upon all member ORG in a position to do so to respond immediately to the humanitarian appeals of ORG and other international organisations for GPE and to help meet the humanitarian and other needs of the NORP people by providing food , medical supplies , and resources necessary for reconstruction and rehabilitation of GPE ’s economic infrastructure ;

Appeals to member GPE to deny safe haven to those members of the previous NORP regime who are alleged to be responsible for crimes and atrocities and to support actions to bring them to justice ;

Calls upon the ORG , consistent with LAW and other relevant international law , to promote the welfare of the NORP people through the effective administration of the territory , including in particular working towards the restoration of conditions of security and stability and the creation of conditions in which the NORP people can freely determine their own political future ;

Calls upon all concerned to comply fully with their obligations under international law including in particular LAW of DATE and LAW of DATE ;

NORP Requests the Secretary - General to appoint a ORG for GPE whose independent responsibilities shall involve reporting regularly to the ORG on his activities under this ORG , coordinating activities of ORG in post - conflict processes in GPE , coordinating among ORG and international agencies engaged in humanitarian assistance and reconstruction activities in GPE , and , in coordination with the ORG , assisting the people of GPE through :

( a ) coordinating humanitarian and reconstruction assistance by ORG agencies and between ORG agencies and non - governmental organisations ;

( b ) promoting the safe , orderly , and voluntary return of refugees and displaced persons ;

( c ) working intensively with the ORG , the people of GPE , and others concerned to advance efforts to restore and establish national and local institutions for representative governance , including by working together to facilitate a process leading to an internationally recognised , representative government of GPE ;

( d ) facilitating the reconstruction of key infrastructure , in cooperation with other international organisations ;

( e ) NORP promoting economic reconstruction and the conditions for sustainable development , including through coordination with national and regional organisations , as appropriate , civil society , donors , and the international financial institutions ;

( f ) encouraging international efforts to contribute to basic civilian administration functions ;

( g ) promoting the protection of human rights ;

( h ) encouraging international efforts to rebuild the capacity of the NORP civilian police force ; and

( i ) encouraging international efforts to promote legal and judicial reform ;

Supports the formation , by the people of GPE with the help of the ORG and working with the Special Representative , of an NORP interim administration as a transitional administration run by NORP , until an internationally recognised , representative government is established by the people of GPE and assumes the responsibilities of the ORG ;

NORP Requests the Secretary - General to report to the Council at regular intervals on the work of the Special Representative with respect to the implementation of this Resolution and on the work of ORG and encourages GPE and GPE and GPE to inform the ORG at regular intervals of their efforts under this ORG ;

Decides to review the implementation of this ORG within DATE of adoption and to consider further steps that might be necessary .

Calls upon member GPE and international and regional organisations to contribute to the implementation of this ORG ;

Decides to remain seised of this matter . ”

NORP In DATE ORG was established . The CPA was required to consult with it on all matters concerning the temporary governance of GPE .

On DATE ORG passed Resolution CARDINAL , which provided , inter alia , as follows :

“ ORG

Underscoring that the sovereignty of GPE resides in GPE , reaffirming the right of the NORP people freely to determine their own political future and control their own natural resources , reiterating its resolve that the day when NORP govern themselves must come quickly , and recognising the importance of international support , particularly that of countries in the region , GPE ’s neighbours , and regional organisations , in taking forward this process expeditiously ,

Recognising that international support for restoration of conditions of stability and security is essential to the well - being of the people of GPE as well as to the ability of all concerned to carry out their work on behalf of the people of GPE , and welcoming member State contributions in this regard under LAW ( DATE ) ,

Welcoming the decision of ORG to form a preparatory constitutional committee to prepare for a constitutional conference that will draft a LAW to embody the aspirations of the NORP people , and urging it to complete this process quickly ,

Determining that the situation in GPE , although improved , continues to constitute a threat to international peace and security ,

Acting under LAW of ORG ,

PERSON the sovereignty and territorial integrity of GPE , and underscores , in that context , the temporary nature of the exercise by ORG ) of the specific responsibilities , authorities , and obligations under applicable international law recognised and set forth in LAW ( DATE ) , which will cease when an internationally recognised , representative government established by the people of GPE is sworn in and assumes the responsibilities of the ORG , inter alia , through steps envisaged in DATE CARDINAL below ;

ORG that ORG and its ministers are the principal bodies of the NORP interim administration , which , without prejudice to its further evolution , embodies the sovereignty of ORG during the transitional period until an internationally recognised , representative government is established and assumes the responsibilities of the ORG ;

Affirms that the administration of GPE will be progressively undertaken by the evolving structures of the NORP interim administration ;

Calls upon the ORG , in this context , to return governing responsibilities and authorities to the people of GPE as soon as practicable and requests the ORG , in cooperation as appropriate with ORG and the Secretary - General , to report to ORG on the progress being made ;

ORG to provide to ORG , for its review , no later than DATE , in cooperation with the ORG and , as circumstances permit , the Special Representative of the Secretary - General , a timetable and a programme for the drafting of a new LAW for GPE and for the holding of democratic elections under that LAW ;

Resolves that ORG , acting through the Secretary - General , his ORG , and ORG , should strengthen its vital role in GPE , including by providing humanitarian relief , promoting the economic reconstruction of and conditions for sustainable development in GPE , and advancing efforts to restore and establish national and local institutions for representative government ;

Determines that the provision of security and stability is essential to the successful completion of the political process as outlined in paragraph CARDINAL above and to the ability of ORG to contribute effectively to that process and the implementation of Resolution DATE ) , and authorises a ORG under unified command to take all necessary measures to contribute to the maintenance of security and stability in GPE , including for the purpose of ensuring necessary conditions for the implementation of the timetable and programme as well as to contribute to the security of ORG , ORG and other institutions of the NORP interim administration , and key humanitarian and economic infrastructure ;

Urges member GPE to contribute assistance under this ORG mandate , including military forces , to ORG referred to in paragraph CARDINAL above ;

Decides that the ORG shall review the requirements and mission of ORG referred to in paragraph CARDINAL above not later than one year from the date of this Resolution , and that in any case the mandate of the ORG shall expire upon the completion of the political process as described in DATE CARDINAL above , and expresses readiness to consider on that occasion any future need for the continuation of ORG , taking into account the views of an internationally recognised , representative government of GPE ;

NORP Requests that GPE , on behalf of ORG as outlined in paragraph CARDINAL above , report to ORG on the efforts and progress of this ORG as appropriate and not less than DATE ;

Decides to remain seised of the matter . ”

On DATE ORG promulgated ORG for the State of Iraq for the Transitional Period ( known as the “ LAW ” ) . This provided a temporary legal framework for the administration of GPE for the transitional period which was due to commence by DATE with the establishment of an interim NORP government and the dissolution of the CPA .

Provision for the new regime was made in ORG DATE , adopted on DATE , which provided , inter alia , that ORG , acting under LAW of ORG :

“ CARDINAL . Endorses the formation of a sovereign interim government of GPE , as presented on DATE , which will assume full responsibility and authority by DATE for governing GPE while refraining from taking any actions affecting GPE ’s destiny beyond the limited interim period until an elected transitional government of GPE assumes office as envisaged in paragraph CARDINAL below ;

ORG that , also by DATE , the occupation will end and ORG will cease to exist , and that GPE will reassert its full sovereignty ;

Welcomes ongoing efforts by the incoming interim government of GPE to develop NORP security forces including the NORP armed forces ( hereinafter referred to as ‘ NORP security forces’ ) , operating under the authority of the interim government of GPE and its successors , which will progressively play a greater role and ultimately assume full responsibility for the maintenance of security and stability in GPE ;

Notes that the presence of ORG in GPE is at the request of the incoming interim government of GPE and therefore reaffirms the authorisation for ORG under unified command established under LAW ( DATE ) , having regard to the letters annexed to this ORG ;

Decides that the ORG shall have the authority to take all necessary measures to contribute to the maintenance of security and stability in GPE in accordance with the letters annexed to this Resolution expressing , inter alia , the NORP request for the continued presence of ORG and setting out its tasks , including by preventing and deterring terrorism , so that , inter alia , ORG can fulfil its role in assisting the NORP people as outlined in paragraph QUANTITY above and the NORP people can implement freely and without intimidation the timetable and programme for the political process and benefit from reconstruction and rehabilitation activities ;

On DATE full authority was transferred from the CPA to the NORP interim government and the CPA ceased to exist . Subsequently , ORG , including the NORP forces forming part of it , remained in GPE pursuant to requests by the NORP government and authorisations from ORG .

During this period , ORG consisted of CARDINAL divisions that were under the overall command of GPE generals . CARDINAL were GPE divisions and CARDINAL were multinational . Each division was given responsibility for a particular geographical area of GPE . GPE was given command of ORG ( South - East ) , which comprised the provinces of GPE , ORG , PERSON and PERSON , an area of QUANTITY with a population of MONEY . There were CARDINAL Coalition troops , including CARDINAL GPE troops , stationed in ORG ( LOC ) . The main theatre for operations by GPE forces in ORG ( LOC ) were the GPE and ORG provinces , with a total population of CARDINAL people . CARDINAL NORP troops were deployed there , of whom CARDINAL had operational responsibilities .

From CARDINAL DATE onwards NORP forces in GPE carried out CARDINAL main functions . The first was to maintain security in ORG ( South - East ) area , in particular in the GPE and ORG provinces . The principal security task was the effort to re - establish the NORP security forces , including the NORP police . Other tasks included patrols , arrests , anti - terrorist operations , policing of civil demonstrations , protection of essential utilities and infrastructure and protecting police stations . The second main function of the NORP troops was the support of the civil administration in GPE in a variety of ways , from liaison with the CPA and ORG and local government , to assisting with the rebuilding of the infrastructure .

In ORG ( see paragraph CARDINAL below ) , prepared on behalf of the ORG Chief of ORG , the post - conflict situation in GPE was described as follows :

“ The context in which operations have been conducted in GPE has been exceptionally complex . It is not for this report to comment on the jus ad bellum aspects of the operation , nor of the public ’s opinions of the invasion . It is , however , important to note that the ORG ’s post - invasion plans concentrated more on the relief of a humanitarian disaster ( which did not , in the event , occur on anything like the scale that had been anticipated ) , and less on the criminal activity and subsequent insurgency that actually took place . CARDINAL consequence of that was that we had insufficient troops in theatre to deal effectively with the situation in which we found ourselves . Peace support operations require significantly larger numbers of troops to impose law and order than are required for prosecuting a war : ours were very thinly spread on the ground . In his investigation ( in DATE ) of the LOC incident [ alleged abuse of NORP detained on suspicion of looting humanitarian aid stores ] , Brigadier PERSON described conditions in GPE thus :

‘ ... DATE , DATE or so after NORP forces had started to begin the transition from offensive operations to stabilisation . The situation was fluid . Battlegroups had been given geographic areas of responsibility based generally around their initial tactical objectives . Combat operations had officially ended , and [ the ] rules of engagement had changed to reflect this , but there was a rising trend of shooting incidents . Although these were principally between NORP , seeking to settle old scores or involved in criminal activity , there were early indications that the threat to NORP soldiers was developing ... The structure of the NORP forces was changing . Many of the heavier capabilities that had been required for the invasion were now being sent home . Some force elements were required for operations elsewhere , and there was pressure from the GPE to downsize quickly to more sustainable numbers ... Local attitudes were also changing . Initially ecstatic with happiness , the formerly downtrodden NORP population in and around GPE had become suspicious , and by the middle of DATE people were frustrated . Aspirations and expectations were not being met . There was no NORP administration or governance . Fuel and potable water were in short supply , electricity was intermittent , and the hospitals were full of wounded from the combat operations phase . PERSON and key routes had been destroyed by Coalition bombing . PERSON and order had completely collapsed . The NORP police service had melted away ; the few security guards who remained were old and incapable ; and the NORP armed forces had been captured , disbanded or deserted . Criminals had been turned out onto the streets and the prisons had been stripped . The judiciary were in hiding . Every government facility had been raided and all loose items had been removed . Insecure buildings had been occupied by squatters . Crime was endemic and in parts of GPE a state of virtual anarchy prevailed . Hijackings , child kidnappings , revenge killings , car theft and burglary were rife . In a very short space of time wealth was being comprehensively redistributed.’

In this environment , the NORP army was the sole agent of law and order within its area of operations . When the Association of Chief Police Officers’ Lead for ORG , Mr PERSON , visited GPE in DATE , he said that he would not recommend the deployment of civilian police officers to the theatre of operations due to the poor security situation . The last time the army had exercised the powers of an army of occupation was in DATE and it had spent DATE preparing for that role ; in DATE , the same soldiers who had just fought a highintensity , conventional war were expected to convert , TIME , into the only people capable of providing the agencies of government and humanitarian relief for the people of southern GPE . Battlegroups ( comprising a Lieutenant Colonel and CARDINAL soldiers ) were allocated areas of responsibilities comprising QUANTITY ; companies ( a Major with CARDINAL men under command ) were given whole towns to run . The NORP invasion plans had wisely limited damaging as much of the physical infrastructure as possible ; but with only military personnel available to run that infrastructure , and very limited local staff support , the task placed huge strains on the army .

CARDINAL of the effects of this lack of civil infrastructure was the conundrum NORP soldiers faced when dealing with routine crime . Our experience in GPE , and in peace support operations around the world , has inculcated the clear principle of police primacy when dealing with criminals in operational environments . Soldiers accept that they will encounter crime , and that they will occasionally be required to arrest those criminals ; but ( despite some experience of this syndrome in GPE in DATE ) our doctrine and practice had not prepared us for dealing with those criminals when there was no civil police force , no judicial system to deal with offenders , and no prisons to detain them in . Even when a nascent NORP police force was re - established in DATE , troops on the ground had little confidence in its ability to deal fairly or reasonably with any criminals handed over to it . In hindsight , we now know that some soldiers acted outside the law in the way they dealt with local criminals . However diligent they were , commanders were unable to be everywhere , and so were physically unable to supervise their troops to the extent that they should ; as a result , when those instances did occur , they were less likely to be spotted and prevented . ”

GPE military records show that , as at DATE , there had been CARDINAL demonstrations and CARDINAL violent attacks against ORG in ORG ( LOC ) since DATE . The violent attacks consisted of CARDINAL anti - aircraft attacks , CARDINAL grenade attacks , CARDINAL attacks using improvised explosive devices , CARDINAL attempted attacks using improvised explosive devices , CARDINAL mortar attacks , CARDINAL rocket - propelled grenade attacks , CARDINAL shootings and CARDINAL others . The same records show that , DATE , DATE NORP were known to have been killed in incidents in which NORP troops used force .

The use of force by NORP troops during operations is covered by the appropriate rules of engagement . The rules of engagement governing the use of lethal force by NORP troops in GPE during the relevant period were the subject of guidance contained in a card issued to every soldier , known as “ LOC ” . Card Alpha set out the rules of engagement in the following terms :

“ CARD A – GUIDANCE FOR OPENING FIRE FOR SERVICE PERSONNEL AUTHORISED TO CARRY ARMS AND AMMUNITION ON DUTY

GENERAL GUIDANCE

NORP This guidance does not affect your inherent right to self - defence . However , in all situations you are to use no more force than absolutely necessary .

FIREARMS MUST ONLY BE USED AS A LAST RESORT

When guarding property , you must not use lethal force other than for the protection of human life .

PROTECTION OF HUMAN LIFE

You may only open fire against a person if he / she is committing or about to commit an act likely to endanger life and there is no other way to prevent the danger .

CHALLENGING

A challenge MUST be given before opening fire unless :

( a ) to do this would be to increase the risk of death or grave injury to you or any other persons other than the attacker(s ) ;

OR

( b ) NORP you or others in the immediate vicinity are under armed attack .

You are to challenge by shouting : ‘ ORG , ORG , ORG , STOP OR I GPE or words to that effect .

OPENING FIRE

If you have to open fire you are to :

( a ) fire only aimed shots ;

AND

( b ) fire no more rounds than are necessary ;

AND

( c ) take all reasonable precautions not to injure anyone other than your target . ”

On DATE Brigadier PERSON ( Commander of the CARDINAL ORG in GPE from DATE ) issued a formal policy on the investigation of shooting incidents . This policy provided that all shooting incidents were to be reported and the Divisional Provost Marshal was to be informed . Non - commissioned officers from ORG were then to evaluate the incident and decide whether it fell within the rules of engagement . If it was decided that the incident did come within the rules of engagement , statements were to be recorded and a completed bulletin submitted through the chain of command . If the incident appeared to fall outside the rules of engagement and involved death or serious injury , the investigation was to be handed to ORG of ORG ( see paragraph CARDINAL below ) by the Divisional Provost Marshal at the earliest opportunity .

NORP However , Brigadier PERSON decided that from DATE this policy should be revised . The new policy required that all such incidents should be reported immediately by the soldier involved to ORG ( South - East ) by means of a “ serious incident report ” . There would then be an investigation into the incident by the Company Commander or the soldier ’s Commanding Officer . In his evidence to the domestic courts , Brigadier PERSON explained that :

“ The form of an investigation into an incident would vary according to the security situation on the ground and the circumstances of the individual case . Generally , it would involve the Company Commander or Commanding Officer taking statements from the members of the patrol involved , and reviewing radio logs . It might also include taking photographs of the scene . Sometimes there would be further investigation through a meeting with the family / tribe of the person killed . Investigations at unit - level , however , would not include a full forensic examination . Within the Brigade , we had no forensic capability . ”

If the Commanding Officer was satisfied , on the basis of the information available to him , that the soldier had acted lawfully and within the rules of engagement , there was no requirement to initiate an investigation by ORG . The Commanding Officer would record his decision in writing to Brigadier PERSON . If the Commanding Officer was not so satisfied , or if he had insufficient information to arrive at a decision , he was required to initiate a Special Investigation Branch investigation .

DATE there was a further reconsideration of this policy , prompted by the fact that the environment had become less hostile and also by the considerable media and parliamentary interest in incidents involving GPE forces in which NORP had died . On DATE a new policy was adopted by the Commander of ORG ( South - East ) , requiring all shooting incidents involving GPE forces which resulted in a civilian being killed or injured to be investigated by ORG . In exceptional cases , ORG Commander could decide that an investigation was not necessary . Any such decision had to be notified to the Commander of ORG ( South - East ) in writing .

The Royal Military Police form part of the army and deploy with the army on operations abroad , but have a separate chain of command . Military police officers report to LOC , who reports to ORG . Within ORG , the Special Investigation Branch is responsible for the investigation of serious crimes committed by members of the NORP forces while on service , incidents involving contact between the military and civilians and any special investigations tasked to it , including incidents involving civilian deaths caused by NORP soldiers . To secure their practical independence on operations , ORG deploy as entirely discrete units and are subject to their own chain of command , headed by provost officers who are deployed on operations for this purpose .

Investigations into NORP civilian deaths involving NORP soldiers were triggered either by ORG being asked to investigate by the Commanding Officer of the units concerned or by ORG of its own initiative , when it became aware of an incident by other means . However , the latter type of investigation could be terminated if ORG was instructed to stop by ORG or the Commanding Officer of the unit involved .

Special Investigation Branch investigations in GPE were hampered by a number of difficulties , such as security problems , lack of interpreters , cultural considerations ( for example , the NORP practice requiring a body to be buried within TIME and left undisturbed for DATE ) , the lack of pathologists and post - mortem facilities , the lack of records , problems with logistics , the climate and general working conditions . ORG ( see paragraph CARDINAL below ) summarised the position as follows :

“ It was not only the combat troops who were overstretched in these circumstances . The current military criminal justice system is relevant , independent , and fit for purpose ; but even the most effective criminal justice system will struggle to investigate , advise on and prosecute cases where the civil infrastructure is effectively absent . And so , in the immediate aftermath of the ground war , the Service Police faced particular challenges in gathering evidence of a quality that would meet the very high standards required under LANGUAGE law . National records – usually an integral reference point for criminal investigations – were largely absent ; a different understanding of the law between NORP people and NORP police added to an atmosphere of hostility and suspicion ; and the army was facing an increasingly dangerous operational environment – indeed , on DATE , CARDINAL members of ORG were killed in LOC . Local customs similarly hampered the execution of NORP standards of justice : in the case of PERSON , for instance , the family of the deceased refused to hand over the body for forensic examination – significantly reducing the quality of evidence surrounding his death . ”

ORG also referred to the problems caused to ORG , when attempting to investigate serious allegations of abuse , by the sense of loyalty to fellow soldiers which could lead to a lack of cooperation from army personnel and to what the judge in the court martial concerning the killing of the sixth applicant ’s son had described as a “ wall of silence ” from some of the military witnesses called to give evidence .

On conclusion of a Special Investigation Branch investigation , the Special Investigation Branch officer would report in writing to the Commanding Officer of the unit involved . Such a report would include a covering letter and a summary of the evidence , together with copies of any documentary evidence relevant to the investigation in the form of statements from witnesses and investigators . The report would not contain any decision as to the facts or conclusions as to what had happened . It was then for the Commanding Officer to decide whether or not to refer the case to ORG for possible trial by court martial .

ORG , dated DATE ( see paragraph CARDINAL below ) , commented on the prosecution of armed forces personnel in connection with the death of NORP civilians , as follows :

“ CARDINAL cases involving NORP deaths as a result of deliberate abuse have been investigated , and subsequently referred to ORG ( ORG ) on the basis there was a prima facie case that the victims had been killed unlawfully by NORP troops . The ORG preferred charges on CARDINAL of these cases on the basis that it considered there was a realistic prospect of conviction , and that trial was in the public and service interest ; and yet not CARDINAL conviction for murder or manslaughter has been recorded .

The army ’s position is straightforward on the issue of prosecution . Legal advice is available for commanding officers and higher authorities to assist with decisions on referring appropriate cases to the ORG . ORG ( ORG ) , who is responsible to ORG for the provision of legal services to the army , is additionally appointed by the Queen as the ORG . In that capacity , he has responsibility for decisions on whether to direct trial for all cases referred by the military chain of command , and for the prosecution of all cases tried before courts martial , ORG and ORG and for appeals before ORG and ORG . ORG delegates these functions to ORG [ ( ORG ) ] officers appointed as prosecutors in the ORG , and Brigadier Prosecutions has day - to - day responsibility for the ORG . The ORG is under the general superintendence of the Attorney General and is , rightly , independent of the army chain of command : the ORG alone decides whether to direct court - martial trial and the appropriate charges , and neither the army chain of command , nor ministers , officials nor anyone else can make those decisions . However complex the situation in which it finds itself , the army must operate within the law at all times ; once the ORG has made its decision ( based on the evidence and the law ) , the army has to accept that the consequences of prosecuting particular individuals or of particular charges may have a negative impact on its reputation .

The absence of a single conviction for murder or manslaughter as a result of deliberate abuse in GPE may appear worrying , but it is explicable . Evidence has to be gathered ( and , as already mentioned , this was not an easy process ) ; that evidence has to be presented in court ; and defendants are presumed innocent unless the prosecution can prove its case beyond reasonable doubt . That is a stiff test – no different to the one that applies in our civilian courts . In the broader context , the outcome from prosecutions brought to court martial by the ORG is almost exactly comparable with the equivalent civilian courts : for example , as at DATE , the conviction rates after trial in the court - martial system stood at PERCENT as compared with PERCENT in ORG . It is inevitable that some prosecutions will fail ; but this does not mean that they should not have been brought in the first place . It is the courts , after all , that determine guilt , not the prosecutors . Indeed , the fact that only a small number of all the CARDINAL cases investigated by ORG in GPE resulted in prosecution could be interpreted as both a positive and a negative indicator : positive , in that the evidence and the context did not support the preferring of criminal charges ; but negative , in that we know that ORG were hugely hampered , in some cases , in their ability to collect evidence of a high enough standard for charges to be preferred or for cases to be successfully prosecuted .

It is important to note that none of this implies any fundamental flaws in the effectiveness of the key elements of the military criminal justice system . Both the Special Investigation Branch of ORG ) ) and the ORG were independently inspected during DATE . The police inspection reported that ‘ ... Her ORG assess the RMP(SIB ) as having the capability and capacity to run a competent level CARDINAL ( serious criminal ) reactive investigation’ ; and the inspection of the ORG in DATE and DATE by Her Majesty ’s ORG concluded that : ‘ ... the ORG undertakes its responsibilities in a thorough and professional manner , often in difficult ORG , adding that PERCENT of decisions to proceed to trial were correct on evidential grounds , and PERCENT of decisions to proceed to trial were properly based on public or service interest grounds . ”

The following accounts are based on the witness statements of the applicants and the NORP soldiers involved in each incident . These statements were also submitted to the domestic courts and , as regards all but the fifth applicant , summarised in their judgments ( particularly the judgment of ORG ) .

The first applicant is the brother of ORG ( “ Hazim PERSON ” ) , who was DATE at the time of his death . Hazim PERSON was one of CARDINAL NORP from the Beini ORG tribe who were shot dead in the LOC area of GPE TIME on CARDINAL DATE by PERSON , the Commander of a NORP patrol .

In his witness statement , the first applicant explained that , during the TIME in question , various members of his family had been gathering at a house in GPE for a funeral ceremony . In GPE it is customary for guns to be discharged at a funeral . The first applicant stated that he was engaged in receiving guests at the house , as they arrived for the ceremony , and saw his brother fired upon by NORP soldiers as he was walking along the street towards the house . According to the first applicant , his brother was unarmed and QUANTITY away from the soldiers when he was shot and killed . Another man with him was also killed . He had no idea why the soldiers opened fire .

According to the NORP account of the incident , the patrol , approaching on foot and on a very dark night , heard heavy gunfire from a number of different points in GPE . As the patrol got deeper into the village they came upon CARDINAL NORP men in the street . CARDINAL was QUANTITY from PERSON , who was leading the patrol . PERSON saw that he was armed and pointing the gun in his direction . In the dark , it was impossible to tell the position of the second man . Believing that his life and those of the other soldiers in the patrol were at immediate risk , PERSON opened fire on the CARDINAL men without giving any verbal warning .

DATE , PERSON produced a written statement describing the incident . This was passed to the Commanding Officer of his battalion , Colonel PERSON , who took the view that the incident fell within the rules of engagement and duly wrote a report to that effect . Colonel PERSON sent the report to the Brigade , where it was considered by Brigadier PERSON . Brigadier PERSON queried whether the other man had been pointing his gun at the patrol . Colonel PERSON wrote a further report that dealt with this query to Brigadier PERSON ’s satisfaction . The original report was not retained in the Brigade records . Having considered Colonel PERSON ’s further report , as did his Deputy Chief of Staff and his legal adviser , Brigadier PERSON was satisfied that the actions of PERSON fell within the rules of engagement and so he did not order any further investigation .

On DATE , DATE and DATE Colonel PERSON met with members of the dead men ’s tribe . He explained why PERSON had opened fire and gave the tribe a charitable donation of MONEY ( ORG ) from ORG , together with a letter explaining the circumstances of the deaths and acknowledging that the deceased had not intended to attack anyone .

The second applicant is the widow of PERSON , who was shot and fatally wounded by PERSON shortly after TIME on DATE .

The second applicant was not present when her husband was shot and her evidence was based on what she was told by those who were present . She stated that on DATE , during DATE , PERSON went to visit his brother - in - law at his home in GPE . At TIME NORP soldiers raided the house . They broke down the front door . CARDINAL of the NORP soldiers came face - to - face with the second applicant ’s husband in the hall of the house and fired a shot at him , hitting him in the stomach . The NORP soldiers took him to the NORP military hospital , where he died on DATE .

According to the NORP account of the incident , the patrol had received information from an acquaintance of CARDINAL of their interpreters that a group of men armed with long - barrelled weapons , grenades and rocket- propelled grenades had been seen entering the house . The order was given for a quick search - and - arrest operation . After the patrol failed to gain entry by knocking , the door was broken down . PERSON entered the house through the front door with CARDINAL other soldiers and cleared the first room . As he entered the second room , he heard automatic gunfire from within the house . When PERSON moved forward into the next room by the bottom of the stairs , CARDINAL men armed with long - barrelled weapons rushed down the stairs towards him . There was no time to give a verbal warning . PERSON believed that his life was in immediate danger . He fired one shot at the leading man , the second applicant ’s husband , and hit him in the stomach . He then trained his weapon on the second man who dropped his gun . The applicant ’s family subsequently informed the patrol that they were lawyers and were in dispute with another family of lawyers over the ownership of office premises , which had led to their being subjected to CARDINAL armed attacks which they had reported to the police , DATE before and TIME before the patrol ’s forced entry .

On DATE the Company Commander produced a report of the incident . He concluded that the patrol had deliberately been provided with false intelligence by the other side in the feud . Having considered the report and spoken to the Company Commander , Colonel PERSON came to the conclusion that the incident fell within the rules of engagement and did not require any further ORG investigation . He therefore produced a report to that effect DATE and forwarded it to the Brigade , where it was considered by Brigadier General PERSON . Brigadier PERSON discussed the matter with his Deputy Chief of Staff and his legal adviser . He also discussed the case with his political adviser . As a result , Brigadier PERSON also concluded that it was a straightforward case that fell within the rules of engagement and duly issued a report to that effect . The applicant , who had CARDINAL young children and an elderly mother - in - law to support , received ORG CARDINAL,CARDINAL from ORG , together with a letter setting out the circumstances of the killing .

The third applicant is the widower of PERSON , who was shot and fatally wounded on DATE at ORG in the LOC area of GPE , where the third applicant worked as TIME porter and lived with his wife and family .

According to the third applicant ’s witness statement , at TIME on the TIME in question , he and his family were sitting round the dinner table when there was a sudden burst of machine - gunfire from outside the building . Bullets struck his wife in the head and ankles and CARDINAL of his children on the arm . The applicant ’s wife and child were taken to hospital , where his child recovered but his wife died .

According to the NORP account of the incident , the third applicant ’s wife was shot during a firefight between a NORP patrol and a number of unknown gunmen . When the area was illuminated by parachute flares , CARDINAL men with long - barrelled weapons were seen in open ground , CARDINAL of whom were firing directly at the NORP soldiers . CARDINAL of the gunmen was shot dead during this exchange of fire with the patrol . After TIME , the firing ceased and armed people were seen running away . A woman ( the third applicant ’s wife ) with a head injury and a child with an arm injury were found when the buildings were searched . Both were taken to hospital .

The following morning , the Company Commander produced a report concerning the incident , together with statements from the soldiers involved . After he had considered the report and statements , Colonel PERSON came to the conclusion that the incident fell within the rules of engagement and did not require any further ORG investigation . He duly produced a report to that effect , which he then forwarded to ORG . The report was considered by Brigadier PERSON , who also discussed the matter with his Deputy Chief of Staff , his legal adviser and Colonel PERSON As a result , Brigadier PERSON came to the conclusion that the incident fell within the rules of engagement and required no further investigation .

The fourth applicant is the brother of PERSON , aged CARDINAL , who was shot and fatally injured on TIME by ORG in the LOC area of GPE .

The fourth applicant was not present when his brother was shot , but he claims that the incident was witnessed by his neighbours . In his witness statement he stated that his understanding was that his brother was returning home from work at TIME on the evening in question . He was driving a minibus along a street called ORG , near where he and the fourth applicant lived . For no apparent reason , according to the applicant ’s statement , the minibus “ came under a barrage of bullets ” , as a result of which PERSON was mortally wounded in the chest and stomach .

Lance Corporal PERSON was a member of a patrol carrying out a check around the perimeter of a Coalition military base ( FAC ) , where CARDINAL ORG Police officers had been killed by gunfire from a vehicle DATE . According to the NORP soldier ’s account of the incident , PERSON became suspicious of a minibus , with curtains over its windows , that was being driven towards the patrol at a slow speed with its headlights dipped . When the vehicle was signalled to stop , it appeared to be trying to evade the soldiers so PERSON pointed his weapon at the driver and ordered him to stop . The vehicle then stopped and ORG approached the driver ’s door and greeted the driver ( the fourth applicant ’s brother ) . The driver reacted in an aggressive manner and appeared to be shouting over his shoulder to people in the curtained - off area in the back of the vehicle . When PERSON tried to look into the back of the vehicle , the driver pushed him away by punching him in the chest . The driver then shouted into the back of the vehicle and made a grab for ORG weapon . PERSON had to use force to pull himself free . The driver then accelerated away , swerving in the direction of various other members of the patrol as he did so . PERSON fired at the vehicle ’s tyres and it came to a halt QUANTITY from the patrol . The driver turned and again shouted into the rear of the vehicle . He appeared to be reaching for a weapon . ORG PERSON believed that his team was about to be fired on by the driver and others in the vehicle . He therefore fired CARDINAL aimed shots . As the vehicle sped off , PERSON Corporal PERSON fired another CARDINAL shots at the rear of the vehicle . After a short interval , the vehicle screeched to a halt . The driver got out and shouted at the NORP soldiers . He was ordered to lie on the ground . The patrol then approached the vehicle to check for other armed men . The vehicle proved to be empty . The driver was found to have CARDINAL bullet wounds in his back and hip . He was given first aid and then taken to the NORP military hospital where he died DATE or DATE .

The Special Investigation Branch commenced an investigation on CARDINAL DATE . The investigators recovered fragments of bullets , empty bullet cases and took digital photographs of the scene . The vehicle was recovered and transported to GPE . The deceased ’s body had been returned to the family for burial and no post mortem had been carried out , so GPE took statements from the CARDINAL NORP surgeons who had operated on him . A meeting was arranged with the family to seek their consent for an exhumation and post mortem , but this was delayed . QUANTITY military witnesses involved in the incident were interviewed and had statements taken and a further CARDINAL individuals were interviewed but found to have no evidence to offer . PERSON was not , however , questioned . Since he was suspected by ORG of having acted contrary to the rules of engagement , it was ORG practice not to interview him until there was enough evidence to charge him . A forensic examination was carried out at the scene on DATE .

On DATE Colonel PERSON sent his initial report concerning the incident to Brigadier PERSON . In it he stated that he was satisfied that PERSON Corporal PERSON believed that he was acting lawfully within the rules of engagement . However , Colonel PERSON went on to express the view that it was a complex case that would benefit from a ORG investigation . After Brigadier PERSON had considered Colonel PERSON ’s report , discussed the matter with his Deputy Chief of Staff and taken legal advice , it was decided that the matter could be resolved with a unit - level investigation , subject to a number of queries being satisfactorily answered . As a result , Colonel PERSON produced a further report dated DATE , in which he dealt with the various queries and concluded that a Special Investigation Branch investigation was no longer required . After discussing the matter again with his Deputy Chief of Staff and having taken further legal advice , Brigadier PERSON concluded that the case fell within the rules of engagement .

By this stage , Brigadier PERSON had been informed that ORG had commenced an investigation into the incident . On DATE Colonel PERSON wrote to ORG asking them to terminate the investigation . The same request was made by Brigadier PERSON through his Chief of Staff during a meeting with the Senior Investigating Officer from ORG . ORG investigation was terminated on DATE . The deceased ’s family received ORG CARDINAL,CARDINAL from ORG and a further CARDINAL in compensation for the minibus .

Following the fourth applicant ’s application for judicial review ( see paragraph CARDINAL below ) , the case was reviewed by senior investigation officers in GPE and the decision was taken to reopen the investigation . The investigation was reopened on DATE and completed on DATE , despite difficulties caused by the very dangerous conditions in GPE at that time .

On completing the investigation , ORG reported to the soldier ’s Commanding Officer , who referred the case to ORG in DATE . ORG decided that a formal preliminary examination of the witnesses should be held , in order to clarify any uncertainties and ambiguities in the evidence . Depositions were taken by ORG from the soldiers who had witnessed the shooting , and who were the only known witnesses . Advice was obtained from an independent senior counsel , who advised that there was no realistic prospect of conviction , since there was no realistic prospect of establishing that ORG had not fired in selfdefence . The file was sent to the Attorney General , who decided not to exercise his jurisdiction to order a criminal prosecution .

The fifth applicant is the father of PERSON , who died on DATE , aged CARDINAL .

According to the statements made by the fifth applicant for the purpose of GPE court proceedings , on DATE his son did not return home at TIME as expected . The fifth applicant went to look for him at FAC , where he was told that NORP soldiers had arrested some NORP youths TIME . The applicant continued to search for his son and was contacted TIME by A. , another young NORP , who told the applicant that he , the applicant ’s son and CARDINAL others had been arrested by NORP soldiers DATE , beaten up and forced into the waters of ORG . Later , on DATE , the applicant ’s brother informed “ the NORP police ” about the incident and was requested to surrender PERSON ’s identity card . Having spent DATE waiting and searching , the applicant found his son ’s body in the water on DATE .

The applicant immediately took his son ’s body to “ the NORP police station ” , where he was told to take the body to the local hospital . The NORP doctor on duty told the applicant that he was not qualified to carry out a post mortem and that there were no pathologists available . The applicant decided to bury his son , since in accordance with NORP practice burial should take place within TIME of death .

DATE after his son ’s funeral , the applicant returned to “ the NORP police station ” to ask for an investigation , but he was informed that it was not the business of “ the NORP police ” to deal with such matters . He returned to the “ police station ” DATE , and was informed that ORG wished to contact him and that he should go to the presidential palace . The following day , the applicant met with ORG officers at the presidential palace and was informed that an investigation would be commenced .

The Special Investigation Branch interviewed ORG and took a statement from him . They took statements from the applicant and other family members . DATE after the incident , the investigators went to FAC and retrieved clothing belonging to the applicant ’s son and to the other young men who had been arrested at the same time . At the end of the DATE mourning period , the applicant consented to his son ’s body being exhumed for post - mortem examination , but it was not possible at that point to establish either whether PERSON had been beaten prior to death or what had been the cause of death . The applicant contends that he was never given an explanation as to the post - mortem findings and that he was not kept fully informed of the progress of the investigation in general , since many of the documents he was given were in LANGUAGE or had been badly translated into LANGUAGE .

The applicant claims that DATE elapsed after the exhumation of his son ’s body during which time he had no contact with the investigators . In DATE he was informed that CARDINAL soldiers had been charged with manslaughter and that a trial would take place in GPE . The court martial was held DATE and DATE . By that time , CARDINAL of the CARDINAL soldiers who had been accused of his homicide had left the army , and a further CARDINAL were absent without leave . It was the prosecution case that the soldiers had assisted NORP police officers to arrest the CARDINAL youths on suspicion of looting and that they had driven them to the river and forced them in at gunpoint “ to teach them a lesson ” . The applicant and PERSON gave evidence to the court martial in DATE . The applicant found the trial process confusing and intimidating and he was left with the impression that the court was biased in favour of the accused . A. gave evidence that the applicant ’s son had appeared to be in distress in the water , but that the soldiers had driven away without helping him . However , he was not able to identify the defendants as the soldiers involved . The defendants denied any responsibility for the death and were acquitted because PERSON ’s evidence was found to be inconsistent and unreliable .

The applicant ’s son ’s case was CARDINAL of the CARDINAL cases investigated in ORG ( see paragraph CARDINAL below ) . Under the heading “ Learning lessons from discipline cases ” the report stated :

“ ... we know that CARDINAL initial police reports were produced in DATE relating to allegations that , on CARDINAL separate occasions but within the space of just over a fortnight , NORP had drowned in the Shat’ NORP at the hands of NORP soldiers . That one of those cases did not subsequently proceed to trial is irrelevant : at the time , an ostensibly unusual event was alleged to have occurred twice in a short space of time . With all their other duties , the commanders on the ground can not reasonably be blamed for failing to identify what may or may not have been a trend ; but a more immediate , effective system for referring that sort of information to others with the capacity to analyse it might have identified such a trend . In fact , the evidence suggests that these were CARDINAL isolated incidents ; but had they been a symptom of a more fundamental failing , they might have been overlooked . By comparison , if there had been CARDINAL reports of a new weapon being used by insurgents to attack NORP armoured vehicles within DATE , it is certain that the lessons learned process would have identified its significance , determined the counter - measures needed to combat it , and quickly disseminated new procedures to mitigate the risk . The fact that this process does not apply to disciplinary matters is only partly explained by the need for confidentiality and the preservation of evidence ; but it is a failure in the process that could be fairly easily rectified without compromising the fundamental principle of innocence until proven guilty . ”

The report continued , under the heading “ Delay ” :

“ The amount of time taken to resolve some of the cases with which this report is concerned has been unacceptable . ... The court martial in connection with the death of PERSON did not convene until DATE , DATE after he died ; by that time , CARDINAL of the CARDINAL soldiers who had been accused of his murder had left the army , and a further CARDINAL were absent without leave .

In most cases , it is inappropriate for the army to take administrative action against any officer or soldier until the disciplinary process has been completed , because of the risk of prejudicing the trial . When that disciplinary process takes as long as it has taken in most of these cases , then the impact of any subsequent administrative sanctions is significantly reduced – indeed , such sanctions are likely to be counterproductive . Moreover , the longer the disciplinary process takes , the less likely it is that the chain of command will take proactive measures to rectify the matters that contributed to the commission of the crimes in the first place . ”

The fifth applicant brought civil proceedings against ORG for damages in respect of his son ’s death . The claim was settled without going to hearing , by the payment of MONEY ( GBP ) on DATE . In addition , on DATE Major General PERSON wrote to the fifth applicant and formally apologised on behalf of the NORP army for its role in his son ’s death .

The sixth applicant is a Colonel in the GPE police force . His son , PERSON , was aged DATE when he died while in the custody of the NORP army , DATE after having been arrested by soldiers on DATE .

According to the sixth applicant , on TIME to DATE his son had been working as a receptionist at the PERSON Hotel in GPE . TIME of DATE , the applicant went to the hotel to pick his son up from work . On his arrival he noticed that a NORP unit had surrounded the hotel . The applicant ’s son and CARDINAL other hotel employees were lying on the floor of the hotel lobby with their hands behind their heads . The applicant expressed his concern to the lieutenant in charge of the operation , who reassured him that it was a routine investigation that would be over in TIME . On DATE after his son had been detained , the sixth applicant was visited by a ORG unit . He was told that his son had been killed in custody at a NORP military base in GPE . He was asked to identify the corpse . The applicant ’s son ’s body and face were covered in blood and bruises ; his nose was broken and part of the skin of his face had been torn away .

One of the other hotel employees who was arrested on DATE stated in a witness statement prepared for the GPE domestic court proceedings that , once the prisoners had arrived at the base , the NORP detainees were hooded , forced to maintain stress positions , denied food and water and kicked and beaten . During the detention , PERSON was taken into another room , where he could be heard screaming and moaning .

Late on DATE Brigadier PERSON , who had taken part in the operation in which the hotel employees had been arrested , was informed that PERSON was dead and that other detainees had been ill - treated . ORG was immediately called in to investigate the death . Since local hospitals were on strike , a pathologist was flown in from GPE . PERSON was found to have CARDINAL identifiable injuries on his body and to have died of asphyxiation . CARDINAL other NORP had also been inhumanely treated , with CARDINAL requiring hospital treatment . The investigation was concluded in DATE and the report distributed to the unit ’s chain of command .

On DATE ORG held that the inquiry into the applicant ’s son ’s death had not been effective ( see paragraph CARDINAL below ) . On DATE ORG decided to remit the question to ORG since there had been further developments ( see paragraph CARDINAL below ) .

DATE . On DATE CARDINAL NORP soldiers were charged with criminal offences in connection with PERSON death . On DATE , at the start of the court martial , one of the soldiers pleaded guilty to the war crime of inhumane treatment but not guilty to manslaughter . On DATE charges were dropped against CARDINAL of the CARDINAL soldiers and on DATE the other CARDINAL soldiers were acquitted . On DATE the soldier convicted of inhumane treatment was sentenced to DATE imprisonment and dismissal from the army .

On DATE ORG published a report written by Brigadier PERSON concerning CARDINAL cases of alleged deliberate abuse and killing of NORP civilians , including the deaths of the fifth and sixth applicants’ sons ( “ the ORG ” ) .

The applicant brought civil proceedings against ORG , which concluded in DATE by the formal and public acknowledgement of liability and the payment of GBP CARDINAL in compensation .

In a written statement given in ORG on DATE , the Secretary of ORG announced that there would be a public inquiry into the death of PERSON . The inquiry is chaired by a retired ORG judge , with the following terms of reference :

“ To investigate and report on the circumstances surrounding the death of PERSON and the treatment of those detained with him , taking account of the investigations which have already taken place , in particular where responsibility lay for approving the practice of conditioning detainees by any members of ORG , The Queen ’s Lancashire Regiment in GPE in DATE , and to make recommendations . ”

At the time of adoption of the present judgment , the inquiry had concluded the oral hearings but had not yet delivered its report .

On DATE the Secretary of ORG decided , in connection with the deaths of CARDINAL NORP civilians including the relatives of the CARDINAL applicants , ( CARDINAL ) not to conduct independent inquiries into the deaths ; ( CARDINAL ) not to accept liability for the deaths ; and ( CARDINAL ) not to pay just satisfaction .

The CARDINAL claimants applied for judicial review of these decisions , seeking declarations that both the procedural and the substantive obligations of LAW and , in the case of the sixth applicant , LAW had been violated as a result of the deaths and the Secretary of ORG ’s refusal to order any investigation . On DATE a judge of ORG directed that CARDINAL test cases would proceed to hearing ( including the cases of the first , second , third , fourth and sixth applicants ) and that the other CARDINAL cases ( including that of the fifth applicant ) would be stayed pending the resolution of the preliminary issues .

On DATE ORG rejected the claims of the first CARDINAL applicants but accepted the claim of the sixth applicant ( [ DATE ] EWHC CARDINAL ( Admin ) ) . Having reviewed this ORG ’s case - law , in particular PERSON and PERSON v. GPE and Others ( ( dec . ) [ ORG ] , no . CARDINAL , ORG CARDINAL-XII ) , it held that , essentially , jurisdiction under LAW was territorial , although there were exceptions . CARDINAL exception applied where ORG had effective control of an area outside its own territory . This basis of jurisdiction applied only where the territory of CARDINAL ORG was controlled by ORG , since the ORG operated essentially within its own regional sphere and permitted no vacuum within that space . This basis of jurisdiction could not , therefore , apply in GPE .

There was an additional exception , which arose from the exercise of authority by a ORG agents anywhere in the world , but this was limited to specific cases recognised by international law and identified piecemeal in the ORG ’s case - law . No general rationale in respect of this group of exceptions was discernable from the ORG ’s case - law . However , the instances recognised so far arose out of the exercise of ORG authority in or from a location which had a discrete quasi - territorial quality , or where the ORG agent ’s presence in the foreign ORG was consented to by that ORG and protected by international law , such as embassies , consulates , vessels and aircraft registered in the respondent ORG . A NORP military prison , operating in GPE with the consent of the NORP sovereign authorities and containing arrested suspects , could be covered by this narrow exception . It was arguable that GPE v. GPE ( no . PERSON , DATE ) , also fell into this category , since the applicant was arrested in a NORP aircraft and taken immediately to GPE . However , ORG did not consider that the ORG judgment in ORG should be treated as “ illuminating ” , since GPE had not raised any objection based on lack of jurisdiction at the admissibility stage .

DATE . It followed that the deaths as a result of military operations in the field , such as those complained of by the first CARDINAL applicants , did not fall within GPE jurisdiction LAW , but that the death of the sixth applicant ’s son , in a NORP military prison , did . ORG further held that the scope of LAW DATE was identical to that of the Convention for these purposes .

The Divisional Court found that there had been a breach of the investigative duty under LAW and CARDINAL of the Convention in respect of the sixth applicant ’s son since , by DATE , DATE after the killing , the results of the investigation were unknown and inconclusive . The judge commented that :

“ CARDINAL . ... Although there has been evidence of a rather general nature about the difficulties of conducting investigations in GPE at that time – about basic security problems involved in going to NORP homes to interview people , about lack of interpreters , cultural differences , logistic problems , lack of records , and so forth – without any further understanding of the outcome of the [ ORG ] report , it is impossible to understand what , if any , relevance any of this has to a death which occurred not in the highways or byways of GPE , but in a military prison under the control of NORP forces . ...

Although Captain PERSON says that identity parades were logistically very difficult , detainees were moved to a different location , and some military witnesses had returned to the GPE , she also says that these problems only delayed the process but did not prevent it taking place ‘ ORG ... There is nothing else before us to explain the dilatoriness of the investigative process : which might possibly be compared with the progress , and open public scrutiny , which we have noted seems to have been achieved with other investigations arising out of possible offences in prisons under the control of GPE forces . As for the [ ORG ] report itself , on the evidence before us ... that would not contain any decision as to the facts or any conclusions as to what has or might have happened .

In these circumstances we can not accept [ counsel for the ORG ’s ] submission that the investigation has been adequate in terms of the procedural obligation arising out of LAW . Even if an investigation solely in the hands of the [ Special Investigation Branch ] might be said to be independent , on the grounds that the [ ORG ] are hierarchically and practically independent of the military units under investigation , as to which we have doubts in part because the report of the [ ORG ] is to the unit chain of command itself , it is difficult to say that the investigation which has occurred has been timely , open or effective . ”

In respect of the other CARDINAL deaths , the judge considered that , if he were wrong on the jurisdiction issue and the claims did fall within the scope of the LAW , the investigative duty under LAW had not been met , for the following reasons :

“ CARDINAL . ... in all these cases , as in the case of PERSON , GPE authorities were proceeding on the basis that the Convention did not apply . Thus the immediate investigations were in each case conducted , as a matter of policy , by the unit involved : only in case CARDINAL , that concerning PERSON , was there any involvement of the [ Special Investigation Branch ] , and that was stood down , at any rate before being reopened ( at some uncertain time ) upon a review of the file back in the GPE . The investigations were therefore not independent . Nor were they effective , for they essentially consisted only in a comparatively superficial exercise , based on the evidence of the soldiers involved themselves , and even then on a paucity of interviews or witness statements , an exercise which was CARDINAL - sided and omitted the assistance of forensic evidence such as might have become available from ballistic or medical expertise .

In connection with these cases , [ counsel for the ORG ’s ] main submission was that , in extremely difficult situations , both in operational terms in the field and in terms of post - event investigations , the army and the authorities had done their best . He particularly emphasised the following aspects of the evidence . There was no rule of law in GPE ; at the start of the occupation there was no police force at all , and at best the force was totally inadequate , as well as being under constant attack ; although the NORP courts were functioning , they were subject to intimidation ; there was no local civil inquest system or capability ; the local communications systems were not functioning ; there were no mortuaries , no post - mortem system , no reliable pathologists ; the security situation was the worst ever experienced by seasoned soldiers ; there was DATE fighting between tribal and criminal gangs ; the number of troops available were small ; and cultural differences exacerbated all these difficulties .

We would not discount these difficulties , which cumulatively must have amounted to grave impediments for anyone concerned to conduct investigations as they might have liked to have carried them out . However , irrespective of [ counsel for the applicants’ ] submission , in reliance on the NORP cases , that security problems provide no excuse for a failure in the LAW investigative duty , we would conclude that , on the hypothesis stated , the investigations would still not pass muster . They were not independent ; they were CARDINAL - sided ; and the commanders concerned were not trying to do their best according to the dictates of LAW .

That is not to say , however , that , in other circumstances , we would ignore the strategic difficulties of the situation . The NORP cases are all concerned with deaths within ORG own territory . In that context , the ORG was entitled to be highly sceptical about the ORG ’s own professions of difficulties in an investigative path which it in any event may hardly have chosen to follow . It seems to us that this scepticism can not be so easily transplanted in the extraterritorial setting . ... ”

The first CARDINAL applicants appealed against ORG finding that their relatives did not fall within GPE jurisdiction . The Secretary of ORG also crossappealed against the finding in relation to the sixth applicant ’s son ; although he accepted before ORG that an NORP in the actual custody of NORP soldiers in a military detention centre in GPE was within GPE jurisdiction LAW , he contended that LAW had no extraterritorial effect and that the sixth applicant ’s claim was not , therefore , enforceable in the national courts .

On DATE ORG dismissed the appeals and the cross - appeal ( [ DATE ] EWCA Civ CARDINAL ) . Having reviewed the ORG ’s case - law on jurisdiction under LAW , PERSON LJ , who gave the leading judgment , held that a ORG could exercise extraterritorial jurisdiction when it applied control and authority over a complainant ( which he termed “ ORG agent authority ” , abbreviated to “ SAA ” ) and when it held effective control of an area outside its borders ( “ effective control of an area ” or “ ECA ” ) , observing as follows :

“ CARDINAL . I would therefore be more cautious than ORG in my approach to the PERSON [ and Others ] judgment . It seems to me that it left open both the LAW and ORG approaches to extraterritorial jurisdiction , while at the same time emphasising ( in paragraph CARDINAL ) that because an ORG approach might constitute a violation of another ORG ’s sovereignty ( for example , when someone is kidnapped by the agents of a ORG on the territory of another ORG without that ORG ’s invitation or consent ) , this route to any recognition that extraterritorial jurisdiction has been exercised within the meaning of an international treaty should be approached with caution . ”

He considered , inter alia , the cases of GPE v. GPE ( [ ORG ] , no . CARDINAL , ORG CARDINAL-IV ) ; PERSON v. GPE ( ( dec . ) , no . CARDINAL/CARDINAL , Commission decision of DATE , ORG and Reports ( DATE , p. CARDINAL ) ; and PERSON v. GPE ( ( dec . ) , no . ORG decision of DATE , GPE CARDINAL-A , p. CARDINAL ) ; and observed that these cases had nothing to do with the principle of public international law relating to activities within aircraft registered with a ORG flying over the territory of another ORG . Instead , the findings of jurisdiction in these cases were examples of the “ ORG agent authority ” doctrine applying when someone was within the control and authority of agents of a ORG , even outside the FAC juridique of ORG , and whether or not the host ORG consented to the exercise of control and authority on its soil . Applying the relevant principles to the facts of the case , he concluded that the sixth applicant ’s son came within the control and authority of GPE , and therefore its jurisdiction , from the time he was arrested at the hotel . The relatives of the other claimants had not been under the control and authority of NORP troops at the time when they were killed , and were not therefore within GPE jurisdiction . He concluded in this connection that :

“ CARDINAL . ... It is essential , in my judgment , to set rules which are readily intelligible . If troops deliberately and effectively restrict someone ’s liberty he is under their control . This did not happen in any of these CARDINAL cases . ”

He then examined whether , on the facts , it could be said that NORP troops were in effective control of GPE during the period in question , such as to fix GPE with jurisdiction under the “ effective control of an area ” doctrine . On this point , PERSON concluded as follows :

“ CARDINAL . GPE was in the [ Coalition Provisional Authority ] regional area called ‘ CPA South’ . During the period of military occupation there was a significant degree of NORP responsibility and authority in CPA LOC , although its staff were drawn from CARDINAL different countries and until DATE the regional coordinator was a ORG . Indeed , CARDINAL of the CARDINAL governorate teams in CPA LOC was headed by a NORP coordinator . However , although the chain of command for the NORP military presence in GPE led ultimately to a GPE general , ORG and ORG provinces were an area of direct NORP military responsibility . As I have already said ... , the Secretary of ORG accepts that the GPE was an ORG within the meaning of LAW ... , at least in those areas of southern GPE , and particularly GPE , where NORP troops exercised sufficient authority for this purpose .

But whatever may have been the position under LAW , the question this court has to address is whether NORP troops were in effective control of GPE for ORG purposes . The situation in DATE contrasts starkly with the situations in northern GPE and in the NORP - occupied part of GPE which feature in GPE case - law . In each of those cases part of the territory of a ORG was occupied by another Contracting State which had every intention of exercising its control on a long - term basis . The civilian administration of those territories was under the control of GPE , and it deployed sufficient troops to ensure that its control of the area was effective .

[ The statement of Brigadier PERSON , whose command included the NORP forces in the GPE area DATE ] tells a very different story . He was not provided with nearly enough troops and other resources to enable his brigade to exercise effective control of GPE . ... [ PERSON described how the local police would not uphold the law . If NORP troops arrested somebody and gave them to the NORP police , the police would hand them over to the judiciary , who were themselves intimidated by the local tribes , and the suspected criminals were back on the streets within DATE or CARDINAL . This state of affairs gave the NORP no confidence in the local criminal justice system . It also diluted their credibility with local people . Although NORP troops arranged local protection for the judges , this made little difference . The prisons , for their part , were barely functioning .

NORP After describing other aspects of the highly volatile situation in which a relatively small number of NORP military personnel were trying to police a large city as best they could , Brig[adier ] PERSON said ... :

‘ The combination of terrorist activity , the volatile situation and the ineffectiveness of NORP security forces meant that the security situation remained on a knife - edge for much of our tour . Despite our high work rate and best efforts , I felt that at DATE we were standing on the edge of an abyss . It was only when subsequent reinforcements arrived ... and we started to receive intelligence from some of the NORP parties that I started to regain the initiative.’

Unlike the NORP army in northern GPE , the NORP military forces had no control over the civil administration of GPE . ...

In my judgment it is quite impossible to hold that the GPE , although an Occupying Power for the purposes of LAW and [ the ] LAW ] , was in effective control of GPE for the purposes of [ ORG ] jurisprudence at the material time . If it had been , it would have been obliged , pursuant to the PERSON [ and Others ] judgment , to secure to everyone in GPE the rights and freedoms guaranteed by LAW ] . CARDINAL only has to state that proposition to see how utterly unreal it is . The GPE possessed no executive , legislative or judicial authority in GPE , other than the limited authority given to its military forces , and as an Occupying Power it was bound to respect the laws in force in GPE unless absolutely prevented ( see LAW ... ) . It could not be equated with a civil power : it was simply there to maintain security , and to support the civil administration in GPE in a number of different ways ... ”

PERSON observed , in connection with this issue :

“ CARDINAL . On the CARDINAL hand , it sits ill in the mouth of a ORG which has helped to displace and dismantle by force another nation ’s civil authority to plead that , as an ORG , it has so little control that it can not be responsible for securing the population ’s basic rights . ... [ However , ] the fact is that it can not : the invasion brought in its wake a vacuum of civil authority which NORP forces were and still are unable to fill . On the evidence before the ORG they were , DATE , holding a fragile line against anarchy . ”

The Court of Appeal unanimously concluded that , save for the death of the sixth applicant ’s son , which fell within the “ ORG agent authority ” exception , GPE did not have jurisdiction LAW . It decided that the sixth applicant ’s claim also fell within the scope of LAW DATE . Since ORG examination of the case , additional information had emerged about the investigation into the death of the sixth applicant ’s son , including that courtmartial proceedings were pending against a number of soldiers . ORG therefore remitted the question whether there had been an adequate investigation to ORG for reconsideration following the completion of the court - martial proceedings .

Despite his conclusion on jurisdiction , PERSON , at the express invitation of the Government , commented on the adequacy of the investigations carried out into the deaths , as follows :

“ CARDINAL . After all , the first CARDINAL ORG of the [ Convention ] merely articulate the contemporary concern of the entire NORP community about the importance that must always be attached to every human life . ... Needless to say , the obligation to comply with these well - established international human rights standards would require , among other things , a far greater investment in the resources available to ORG than was available to them in GPE , and a complete severance of their investigations from the military chain of command .

NORP In other words , if international standards are to be observed , the task of investigating incidents in which a human life is taken by NORP forces must be completely taken away from the military chain of command and vested in the [ ORG ] . It contains the requisite independence so long as it is free to decide for itself when to start and when to cease an investigation , and so long as it reports in the first instance to the [ ORG Prosecuting ORG ] and not to the military chain of command . It must then conduct an effective investigation , and it will be helped in this regard by the passages from [ ORG ] case - law I have quoted . Many of the deficiencies highlighted by the evidence in this case will be remedied if the [ ORG ] perform this role , and if they are also properly trained and properly resourced to conduct their investigations with the requisite degree of thoroughness . ”

The first CARDINAL applicants appealed and the Secretary of ORG crossappealed to ORG , which gave judgment on DATE ( [ DATE ] UKHL CARDINAL ) . The majority of ORG ( Lord PERSON of PERSON , ORG of GPE , Lord PERSON and Lord PERSON of ORG - under - Heywood ) held that the general purpose of LAW DATE was to provide a remedial structure in domestic law for the rights guaranteed by the Convention , and that LAW should therefore be interpreted as applying wherever GPE had jurisdiction LAW . Lord PERSON of NORP , dissenting , held that LAW had no extraterritorial application .

In relation to the first CARDINAL ORG complaints , the majority of ORG found that GPE did not have jurisdiction over the deaths . Because of his opinion that LAW had no extraterritorial application , Lord PERSON did not consider it useful to express a view as to whether GPE exercised jurisdiction within the meaning of LAW .

Lord PERSON , with whom the majority agreed , began by observing that ultimately the decision about how LAW should be interpreted and applied was for ORG , since the duty of the national court was only to keep pace with the ORG ’s case - law ; there was a danger in a national court construing the ORG too generously in favour of an applicant , since the respondent ORG had no means of referring such a case to the ORG . Lord PERSON took as his starting - point the decision of FAC in GPE and Others ( cited above ) , which he described as “ a watershed authority in the light of which the GPE jurisprudence as a whole has to be re - evaluated ” . He considered that the following propositions could be derived from the decision in GPE and Others ( paragraph CARDINAL of ORG judgment ) :

“ CARDINAL . Article CARDINAL reflects an ‘ essentially territorial notion of GPE ( a phrase repeated several times in the ORG ’s judgment ) , ‘ other bases of jurisdiction being exceptional and requiring special justification in the particular circumstances of each ORG ( § CARDINAL ) . The ORG operates , subject to LAW , ‘ in an essentially regional context and notably in the legal space ( espace juridique ) of the Contracting PERSON ( § DATE ) ( i.e. within the area of ORG ) .

The ORG recognises Article CARDINAL jurisdiction to avoid a ‘ vacuum in human rights’ protection’ when the territory ‘ would normally be covered by the Convention’ ( § CARDINAL ) ( i.e. in a ORG country ) where otherwise ( as in northern GPE ) the inhabitants ‘ would have found themselves excluded from the benefits of the LAW safeguards and system which they had previously ORG ( § CARDINAL ) .

The rights and freedoms defined in the LAW can not be ‘ divided and LOC ( § DATE ) .

The circumstances in which the ORG has exceptionally recognised the extraterritorial exercise of jurisdiction by a ORG include :

( i ) Where the ORG ‘ through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent , invitation or acquiescence of the government of that territory , exercises all or some of the public powers normally to be exercised by [ the government of that territory]’ ( § CARDINAL ) ( i.e. when otherwise there would be a vacuum within a ORG country , the government of that country itself being unable ‘ to fulfil the obligations it had undertaken under the Convention’ ( § CARDINAL ) ( as in northern GPE ) ) .

( ii ) ’[C]ases involving the activities of its diplomatic or consular agents abroad and on board craft and vessels registered in , or flying the flag of , that ORG [ where ] customary international law and treaty provisions have recognised the extraterritorial exercise of GPE ( § DATE ) .

( iii ) Certain other cases where a ORG ’s responsibility ‘ could , in principle , be engaged because of acts ... which produced effects or were performed outside their own DATE ( § CARDINAL ) . PERSON [ and PERSON ] v. GPE [ and GPE ] ( [ DATE [ , Series A no . CARDINAL ] ) CARDINAL EHRR CARDINAL ( at § CARDINAL ) is the only authority specifically referred to in GPE [ and Others ] as exemplifying this class of exception to the general rule . PERSON [ and Janousek ] , however , contemplated no more than that , if a NORP judge exercised jurisdiction extraterritorially in GPE in his capacity as a NORP judge , then anyone complaining of a violation of his Convention rights by that judge would be regarded as being within GPE ’s jurisdiction .

( iv ) The PERSON v. [ the ] GPE ( [ DATE [ , Series A no . CARDINAL ] ) CARDINAL EHRR CARDINAL line of cases , the ORG pointed out , involves action by the ORG whilst the person concerned is ‘ on its territory , clearly within its GPE ( [ Banković and Others , ] § DATE ) and not , therefore , the exercise of the ORG ’s jurisdiction abroad . ”

Lord PERSON referred to the Öcalan , PERSON and PERSON line of cases ( cited above ) , in each of which the applicant was forcibly removed from a country outside ORG , with the full cooperation of the foreign authorities , to stand trial in the respondent ORG . He observed that this line of cases concerning “ irregular extraditions ” constituted CARDINAL category of “ exceptional ” cases expressly contemplated by PERSON and Others ( cited above ) , as having “ special justification ” for extraterritorial jurisdiction under LAW . He did not consider that the first CARDINAL ORG cases fell into any of the exceptions to the territorial principle so far recognised by the ORG .

Lord PERSON next considered the ORG ’s judgment in PERSON and Others v. GPE ( no . CARDINAL , § DATE , DATE ) , on which the applicants relied , and held as follows :

“ CARDINAL . If and in so far as PERSON [ and Others ] is said to support the altogether wider notions of LAW contended for by the appellants on this appeal , I can not accept it . In the first place , the statements relied upon must be regarded as obiter dicta . Secondly , as just explained , such wider assertions of jurisdiction are not supported by the authorities cited ( at any rate , those authorities accepted as relevant by ORG in GPE [ and Others ] ) . Thirdly , such wider view of jurisdiction would clearly be inconsistent both with the reasoning in PERSON [ and Others ] and , indeed , with its result . Either it would extend the ‘ effective control’ principle beyond ORG ( where alone it had previously been applied , as has been seen , to northern GPE , to GPE in GPE and to GPE ) to GPE , an area ( like the FRY [ GPE ] considered in PERSON [ and Others ] ) outside ORG and , indeed , would do so contrary to the inescapable logic of the ORG ’s case - law on LAW . Alternatively it would stretch to breaking point the concept of jurisdiction extending extraterritorially to those subject to a ORG ’s ‘ authority and control’ . It is CARDINAL thing to recognise as exceptional the specific narrow categories of cases I have sought to summarise above ; it would be quite another to accept that whenever a ORG acts ( militarily or otherwise ) through its agents abroad , those affected by such activities fall within its LAW . Such a contention would prove altogether too much . It would make a nonsense of much that was said in PERSON [ and Others ] , not least as to the Convention being ‘ a constitutional instrument of NORP public ORG , operating ‘ in an essentially regional ORG , ‘ not designed to be applied throughout the world , even in respect of the conduct of Contracting PERSON ( § DATE ) . It would , indeed , make redundant the principle of ‘ effective control’ of an area : what need for that if jurisdiction arises in any event under a general principle of ‘ authority and control’ irrespective of whether the area is ( a ) effectively controlled or ( b ) within ORG ?

There is CARDINAL other central objection to the creation of the wide basis of jurisdiction here contended for by the appellants under the rubric ‘ control and authority’ , going beyond that arising in any of the narrowly recognised categories already discussed and yet short of that arising from the effective control of territory within ORG . PERSON [ and Others ] ( and later PERSON [ v. GPE [ ORG ] , no . CARDINAL/CARDINAL , ORG CARDINALII ] ) stands , as stated , for the indivisible nature of LAW : it can not be ‘ divided and NORP . As PERSON [ and Others ] had earlier pointed out ( at § DATE ) ‘ the applicant ’s interpretation of jurisdiction would invert and divide the positive obligation on Contracting States to secure the substantive rights in a manner never contemplated by LAW . When , moreover , the Convention applies , it operates as ‘ a living instrument’ . ORG provides an example of this , a recognition that the interpretation of LAW has been modified consequent on ‘ the territories encompassed by the member ORG [ having ] become a zone free of capital punishment’ ( § CARDINAL ) . ( Paragraphs CARDINAL and CARDINAL of PERSON [ and Others ] , I may note , contrast on the one hand ‘ the Convention ’s substantive provisions’ and ‘ the competence of the Convention organs’ , to both of which the ‘ living instrument’ approach applies and , on the other hand , the scope of LAW ‘ the scope and reach of the entire Convention’ DATE to which it does not . ) Bear in mind too the rigour with which the ORG applies the Convention , well exemplified by the series of cases from the conflict zone of south - eastern GPE in which , the ORG ’s difficulties notwithstanding , no dilution has been permitted of the investigative obligations arising under LAW and CARDINAL .

NORP The point is this : except where a ORG really does have effective control of territory , it can not hope to secure Convention rights within that territory and , unless it is within the area of ORG , it is unlikely in any event to find certain of the Convention rights it is bound to secure reconcilable with the customs of the resident population . Indeed it goes further than that . During the period in question here it is common ground that the GPE was an ORG in southern GPE and bound as such by [ the ] LAW ] and by LAW . LAW provides that the occupant ‘ shall take all the measures in his power to restore , and ensure , as far as possible , public order and safety , while respecting , unless absolutely prevented , the laws in force in the ORG . The appellants argue that occupation within the meaning of LAW necessarily involves the occupant having effective control of the area and so being responsible for securing there all Convention rights and freedoms . So far as this being the case , however , the occupants’ obligation is to respect ‘ the laws in force’ , not to introduce laws and the means to enforce them ( for example , courts and a justice system ) such as to satisfy the requirements of the Convention . Often ( for example where LAW law is in force ) Convention rights would clearly be incompatible with the laws of the territory occupied . ”

Lord PERSON ( at paragraph CARDINAL ) , with whom ORG agreed , and Lord PERSON ( paragraph CARDINAL ) expressly held that GPE was not in effective control of GPE and the surrounding area for purposes of jurisdiction under LAW at the relevant time .

NORP The Secretary of ORG accepted that the facts of the sixth applicant ’s case fell within GPE jurisdiction LAW . The parties therefore agreed that if ( as the majority held ) the jurisdictional scope of LAW was the same as that of the Convention , the sixth applicant ’s case should be remitted to ORG , as ORG had ordered . In consequence , it was unnecessary for ORG to examine the jurisdictional issue in relation to the death of the sixth applicant ’s son . However , Lord PERSON , with whom the majority agreed , concluded :

“ CARDINAL . ... As for the sixth case , I for my part would recognise the GPE ’s jurisdiction over Mr PERSON only on the narrow basis found established by ORG , essentially by analogy with the extraterritorial exception made for embassies ( an analogy recognised too in PERSON v. [ the ] GPE ( [ no . CARDINAL/CARDINAL , Commission decision of CARDINAL May ] DATE [ , Decisions and Reports CARDINAL , p. ] DATE , a Commission decision in the context of a foreign prison which had itself referred to the embassy case of X. v. [ GPE , no . CARDINAL , Commission decision of DATE , ORG CARDINAL , p. CARDINAL ] ) . ... ”

The duties of an Occupying Power can be found primarily in Articles CARDINAL of the Regulations concerning the Laws and Customs of War on Land ( The GPE , DATE ) ( “ LAW ) and LAW and CARDINAL to CARDINAL of LAW ( IV ) relative to ORG in Time of War ( of CARDINAL DATE ) ( “ the LAW ” ) , as well as in certain provisions of LAW to LAW of DATE , and relating to ORG , of DATE ( “ Additional Protocol I ” ) .

Articles CARDINAL and CARDINAL of LAW provide as follows :

Article CARDINAL

“ Territory is considered occupied when it is actually placed under the authority of the hostile army . The occupation extends only to the territory where such authority has been established and can be exercised . ”

Article CARDINAL

“ The authority of the legitimate power having in fact passed into the hands of the occupant , the latter shall take all the measures in his power to restore , and ensure , as far as possible , public order and safety , while respecting , unless absolutely prevented , the laws in force in the country . ”

LAW provides that penal laws may be repealed or suspended by ORG only where they constitute a threat to the security or an obstacle to the application of LAW . It also details the situations in which ORG is entitled to introduce legislative measures . These are specifically :

“ ... provisions which are essential to enable the Occupying Power to fulfil its obligations under the present Convention , to maintain the orderly government of the territory , and to ensure the security of the Occupying Power , of the members and property of the occupying forces or administration , and likewise of the establishments and lines of communication used by them . ”

Agreements concluded between the Occupying Power and the local authorities can not deprive the population of the occupied territory of the protection afforded by international humanitarian law and protected persons themselves can in no circumstances renounce their rights ( LAW , Articles CARDINAL and PERCENT . Occupation does not create any change in the status of the territory ( see LAW I ) , which can only be effected by a peace treaty or by annexation followed by recognition . The former sovereign remains sovereign and there is no change in the nationality of the inhabitants .

In the proceedings concerning ORG on the Legal Consequences of the Construction of a Wall in GPE ( DATE ) , GPE denied that the human rights instruments to which it was a party , including LAW , were applicable to LOC and asserted ( at paragraph CARDINAL ) that :

“ humanitarian law is the protection granted in a conflict situation such as the one in GPE and GPE , whereas human rights treaties were intended for the protection of citizens from their own government in times of peace . ”

In order to determine whether the instruments were applicable in LOC , ORG first addressed the issue of the relationship between international humanitarian law and international human rights law , holding as follows :

“ CARDINAL . ... the ORG considers that the protection offered by human rights conventions does not cease in case of armed conflict , save through the effect of provisions for derogation of the kind to be found in LAW . As regards the relationship between international humanitarian law and human rights law , there are thus CARDINAL possible situations : some rights may be exclusively matters of international humanitarian law ; others may be exclusively matters of human rights law ; yet others may be matters of both these branches of international law . In order to answer the question put to it , the ORG will have to take into consideration both these branches of international law , namely human rights law and , as lex specialis , international humanitarian law . ”

ORG next considered the question whether LAW was capable of applying outside the ORG ’s national territory and whether it applied in LOC . It held as follows ( references and citations omitted ) :

“ CARDINAL . The scope of application of FAC is defined by LAW , paragraph CARDINAL , thereof , which provides :

‘ ORG to the present LAW undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the present LAW , without distinction of any kind , such as race , colour , sex , language , religion , political or other opinion , national or social origin , property , birth or other status.’

This provision can be interpreted as covering only individuals who are both present within a ORG ’s territory and subject to that ORG ’s jurisdiction . It can also be construed as covering both individuals present within a ORG ’s territory and those outside that territory but subject to that ORG ’s jurisdiction . ORG will thus seek to determine the meaning to be given to this text .

The ORG would observe that , while the jurisdiction of GPE is primarily territorial , it may sometimes be exercised outside the national territory . Considering the object and purpose of LAW , it would seem natural that , even when such is the case , GPE Parties to the LAW should be bound to comply with its provisions .

The constant practice of ORG is consistent with this . Thus , the ORG has found the LAW applicable where the ORG exercises its jurisdiction on foreign territory . It has ruled on the legality of acts by GPE in cases of arrests carried out by NORP agents in GPE or GPE ... It decided to the same effect in the case of the confiscation of a passport by a NORP consulate in GPE ...

The ORG takes note in this connection of the position taken by GPE , in relation to the applicability of the LAW , in its communications to ORG , and of the view of the ORG .

In DATE , GPE stated that , when preparing its report to ORG , it had had to face the question ‘ whether individuals resident in the occupied territories were indeed subject to GPE ’s GPE for purposes of the application of the LAW ... GPE took the position that ‘ the LAW and similar instruments did not apply directly to the current situation in the occupied LOC ...

ORG , in its concluding observations after examination of the report , expressed concern at GPE ’s attitude and pointed ‘ to the long - standing presence of GPE in [ the occupied ] territories , GPE ’s ambiguous attitude towards their future status , as well as the exercise of effective jurisdiction by NORP security forces therein’ ... In DATE in face of GPE ’s consistent position , to the effect that ‘ the LAW does not apply beyond its own territory , notably in the GPE and GPE ... ’ , the ORG reached the following conclusion :

‘ in the current circumstances , the provisions of the LAW apply to the benefit of the population of the occupied territories , for all conduct by ORG authorities or agents in those territories that affect the enjoyment of rights enshrined in the LAW and fall within the ambit of ORG responsibility of GPE under the principles of public international law’ ...

In conclusion , the ORG considers that LAW is applicable in respect of acts done by a ORG in the exercise of its jurisdiction outside its own territory . ”

In addition , ORG appeared to assume that , even in respect of extraterritorial acts , it would in principle be possible for a ORG to derogate from its obligations under LAW , LAW of which provides :

“ In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed , GPE Parties to LAW may take measures derogating from their obligations under LAW to the extent strictly required by the exigencies of the situation , provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race , colour , sex , language , religion or social origin . ”

Thus , in paragraph CARDINAL of its ORG , having considered whether the acts in question were justified under international humanitarian law on grounds of military exigency , ORG held :

“ CARDINAL . The ORG would further observe that some human rights conventions , and in particular LAW , contain provisions which GPE Parties may invoke in order to derogate , under various conditions , from certain of their conventional obligations . In this respect , the ORG would however recall that the communication notified by GPE to the Secretary - General of ORG under DATE of LAW concerns only LAW , relating to the right to freedom and security of person ( see paragraph CARDINAL above ) ; GPE is accordingly bound to respect all the other provisions of that instrument . ”

In its judgment ORG on the Territory of the GPE ( Democratic Republic of the GPE ( ORG ) v. GPE ) of DATE , ORG considered whether , during the relevant period , GPE was an “ Occupying Power ” of any part of the territory of GPE , within the meaning of customary international law , as reflected in LAW ( § § CARDINAL of the judgment ) . ORG found that NORP forces were stationed in the province of GPE and exercised authority there , in the sense that they had substituted their own authority for that of the NORP government ( § § DATE ) . ORG continued :

“ CARDINAL . The ORG thus concludes that GPE was the Occupying Power in GPE at the relevant time . As such it was under an obligation , according to LAW , to take all the measures in its power to restore , and ensure , as far as possible , public order and safety in the occupied area , while respecting , unless absolutely prevented , the laws in force in the ORG . This obligation comprised the duty to secure respect for the applicable rules of international human rights law and international humanitarian law , to protect the inhabitants of the occupied territory against acts of violence , and not to tolerate such violence by any third party .

The ORG , having concluded that GPE was an ORG in GPE at the relevant time , finds that GPE ’s responsibility is engaged both for any acts of its military that violated its international obligations and for any lack of vigilance in preventing violations of human rights and international humanitarian law by other actors present in the occupied territory , including rebel groups acting on their own account .

The ORG notes that GPE at all times has responsibility for all actions and omissions of its own military forces in the territory of the ORG in breach of its obligations under the rules of international human rights law and international humanitarian law which are relevant and applicable in the specific situation . ”

ORG established the facts relating to the serious breaches of human rights allegedly attributable to GPE , in the occupied GPE region and elsewhere ( § § CARDINAL - CARDINAL ) . In order to determine whether the conduct in question constituted a breach of GPE ’s international obligations , ORG recalled its finding in the above - cited LAW Wall in LOC that both international humanitarian law and international human rights law would have to be taken into consideration and that international human rights instruments were capable of having an extraterritorial application , “ particularly in occupied territories ” ( § CARDINAL ) . ORG next determined which were “ the applicable rules of international human rights law and international humanitarian law ” , by listing the international humanitarian and international human rights treaties to which both GPE and GPE were party , together with the relevant principles of customary international law ( § § DATE ) .

Article CARDINAL of LAW ( III ) relative to LAW of CARDINAL DATE ) ( “ FAC ” ) provides that an official enquiry must be held by ORG following the suspected homicide of a prisoner of war . LAW provides :

“ Every death or serious injury of an internee , caused or suspected to have been caused by a sentry , another internee or any other person , as well as any death the cause of which is unknown , shall be immediately followed by an official enquiry by the Detaining Power . A communication on this subject shall be sent immediately to the Protecting Power . The evidence of any witnesses shall be taken , and a report including such evidence shall be prepared and forwarded to the said ORG . If the enquiry indicates the guilt of CARDINAL or more persons , the Detaining Power shall take all necessary steps to ensure the prosecution of the person or persons responsible . ”

LAW also place an obligation on each High Contracting Party to investigate and prosecute alleged grave breaches of the Conventions , including the wilful killing of protected persons ( Articles DATE and CARDINAL of LAW ( I ) for DATE Sick and Wounded in FAC of CARDINAL DATE ) ( “ the LAW ” ) ; Articles DATE of LAW ( II ) for DATE , Sick and Shipwrecked Members of ORG of CARDINAL DATE ) ( “ the LAW ” ) ; Articles CARDINAL and CARDINAL of LAW ; and ORG and CARDINAL of LAW ) .

In his report of DATE on extrajudicial , summary or arbitrary executions ( E / CN.CARDINAL/CARDINAL/CARDINAL ) , ORG , PERSON , observed in connection with the right to life under LAW in situations of armed conflict and occupation ( footnotes omitted ) :

“ CARDINAL . Armed conflict and occupation do not discharge the ORG ’s duty to investigate and prosecute human rights abuses . The right to life is non - derogable regardless of circumstance . This prohibits any practice of not investigating alleged violations during armed conflict or occupation . As ORG has held , ‘ It is inherent in the protection of rights explicitly recognised as non - derogable ... that they must be secured by procedural guarantees ... The provisions of the [ LAW ] relating to procedural safeguards may never be made subject to measures that would circumvent the protection of non - derogable rights’ . It is undeniable that during armed conflicts circumstances will sometimes impede investigation . Such circumstances will never discharge the obligation to investigate – this would eviscerate the non - derogable character of the right to life – but they may affect the modalities or particulars of the investigation . In addition to being fully responsible for the conduct of their agents , in relation to the acts of private actors GPE are also held to a standard of due diligence in armed conflicts as well as peace . On a case - by - case basis a ORG might utilise less effective measures of investigation in response to concrete constraints . For example , when hostile forces control the scene of a shooting , conducting an autopsy may prove impossible . Regardless of the circumstances , however , investigations must always be conducted as effectively as possible and never be reduced to mere formality . ... ”

In its judgment in the Case of the “ FAC ” v. GPE of DATE , ORG held , inter alia , in connection with the respondent ORG ’s failure fully to investigate the massacre of civilians carried out by a paramilitary group with the alleged assistance of the ORG authorities :

“ CARDINAL . In this regard , the ORG recognises the difficult circumstances of GPE , where its population and its institutions strive to attain peace . However , the country ’s conditions , no matter how difficult , do not release a ORG to ORG of its obligations set forth in this treaty , which specifically continue in cases such as the instant CARDINAL . ORG has argued that when the ORG conducts or tolerates actions leading to extra - legal executions , not investigating them adequately and not punishing those responsible , as appropriate , it breaches the duties to respect rights set forth in the LAW and to ensure their free and full exercise , both by the alleged victim and by his or her next of kin , it does not allow society to learn what happened , and it reproduces the conditions of impunity for this type of facts to happen once again . ”