Before :

THE RIGHT HONOURABLE LORD JUSTICE RIX and

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Rabinder Singh QC, Michael Fordham, Shaheed Fatima and Professor Christine Chinkin (instructed by Public Interest Lawyers) for the Claimants

Professor Christopher Greenwood QC, Philip Sales and Cecilia Ivimy (instructed by The Treasury Solicitor) for the Defendant

Edward Fitzgerald QC, Mark Henderson and Joseph Middleton (instructed by Bhatt Murphy) for the Intervener by way of written submissions

Hearing dates: 28th, 29th and 30th July and 30 November 2004

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I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

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1. In this judgment of the court, the Divisional Court considers the claims of six claimants, relatives respectively of Iraqi citizens who have died in provinces of Iraq where and at a time when the United Kingdom was recognised as an occupying power (viz between 1 May 2003 and 28 June 2004). The first five claimants’ relatives were shot in separate armed incidents involving British troops. The sixth claimant’s son, Mr Baha Mousa, died in a military prison in British custody. The claims are for judicial review, on the basis that article 2 and (in the case of the sixth claimant) also article 3 of the European Convention of Human Rights applies, by reason of the Human Rights Act 1998, to these claims.


2. This judgment is only concerned with two preliminary issues: (1) whether the deaths took place within the jurisdiction of the United Kingdom so as to fall within the scope of (a) the Convention and (b) the Act; and (2) whether, if so, there has been a breach of the requirements under articles 2 and 3 of the Convention regarding an adequate enquiry into those deaths.



3. The judgment first decides, on the basis of a consideration of Strasbourg jurisprudence, that a state party’s jurisdiction within article 1 of the Convention ("The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention") is essentially territorial; that exceptionally such jurisdiction extends to outposts of the state’s authority abroad such as embassies and consulates; that this exception can apply to a prison operated by a state party in the territory of another state with the consent of that state; but that it does not apply to the total territory of another state which is not itself a party to the Convention, even if that territory is in the effective control of the first state; and that therefore only the case of the sixth complainant, in respect of his son’s death in a British prison in Iraq, was within the United Kingdom’s jurisdiction and thus within the scope of the Convention. It follows that, in the opinion of the court, the claims of the first five claimants must fail.


4. Secondly, the judgment decides, on the basis of a consideration of the Act, that its scope is also essentially territorial but also extends exceptionally, like the Convention, to the case of outposts of the United Kingdom’s authority abroad such as embassies and consulates and in this case the prison in Iraq in which the death of Mr Baha Mousa occurred. It follows that, in the opinion of the court, the sixth claim is capable of falling within the Convention and the Act.



5. Thirdly, the judgment decides, on the basis of a consideration of the facts relating to the death of Mr Baha Mousa and the surrounding circumstances, that the enquiries that have taken place into his death are not adequate in terms of the implied procedural requirements of articles 2 and 3 of the Convention.

Introduction 2-8

General background 9-13

The post-conflict government and administration of Iraq 14-39

The position of the United Kingdom’s armed forces in Iraq during the

relevant period (i.e. 1 May 2003 to 28 June 2004) 40-46

Investigations into civilian deaths 47-54

The facts of each of the six cases 55-89

Case 1: Hazim Jum’aa Gatteh Al-Skeini 56-59

Case 2: Muhammad Abdul Ridha Salim. 60-63

Case 3: Hannan Mahaibas Sadde Shmailawi 64-67

Case 4: Waleed Sayay Muzban 68-76

Case 5: Raid Hadi Sabir Al Musawi 77-80

Case 6: Baha Mousa 81-89

Jurisdiction under the Convention 90

The provisions of the Convention 91-95

The travaux préparatoires of the Convention 96-99

Other relevant international texts 100-107

The essential structure of the issue between the parties concerning the

jurisdiction of the Convention 108-116

Bankovic v. Belgium (2001) 117-126

The Strasbourg jurisprudence 127-201

X v. Federal Republic of Germany 128-129

Cyprus v. Turkey 130-137

Hess v. United Kingdom 138-140

X and Y v. Switzerland 141-143

X v. United Kingdom 144-145

Tyrer v. United Kingdom 146-148

W v. United Kingdom 149

Soering v. United Kingdom 150-153

Thanh v. United Kingdom 154

Chrysostomos, Papachrysostomou and Loizidou v. Turkey 155-157

Drozd and Janousek v. France and Spain 158-166

WM v. Denmark 167-169

Loizidou v. Turkey 170-174

Loizidou v. Turkey (Merits) 175-176

Cyprus v. Turkey 177-180

Yonghong v. Portugal 181-182

Cyprus v. Turkey 183-187

Al-Adsani v. United Kingdom 188-189

Bankovic v Belgium 190-191

Öcalan v. Turkey 192-195

Ilaşcu v. Moldova and Russia 196-201

Issa v Turkey 202-222

Domestic jurisprudence 223-239

Department 224-228

for Foreign and Commonwealth Affairs 229-231

Regina (Ullah) v. Special Adjudicator 232-239

Jurisprudence of other nations 240-243

Cook v. The Queen 241

Rasul v. Bush 242

Conclusions derived from this jurisprudence 244-280

The principles as applied to the facts 281-288

Jurisdiction under the Human Rights Act 1998 289-307

R(B) v. Secretary of State for the Foreign and Commonwealth Office 308-317

Procedural requirements of articles 2 and 3 of the Convention 318-325

The procedural obligation as applied on the facts 326-341

Other Remedies 342-343

Conclusion 344-345

1. This is the judgment of the court to which both members have contributed.



Introduction

2. The claimants in these proceedings are all relatives of deceased Iraqi civilians ("the deceased"), who have been killed by or in the course of action taken by British soldiers in the period following completion of major combat operations in Iraq and prior to the assumption of authority by the Iraqi Interim Government (i.e. the period 1 May 2003 to 28 June 2004). The defendant is the Secretary of State for Defence ("the Secretary of State").
3. This judgment is concerned with the determination of two preliminary issues (as to which, see paragraphs 5 and 6 below) arising out of the claimants’ application for judicial review of the Secretary of State’s alleged failure and/or refusal: (i) to conduct independent inquiries into the deaths of the deceased, (ii) to accept liability for those deaths and (iii) to pay just satisfaction.
4. Stated in general terms, the claimants’ application for judicial review concerns the legal responsibilities of the Secretary of State under section 6 of the Human Rights Act 1998 ("the HRA") in relation to the civilian deaths in question. It is the claimants’ case (as originally pleaded) that the Secretary of State acted in breach of section 6 of the HRA, in particular by his violation of the procedural obligations under article 2 (the right to life) of the European Convention on Human Rights ("the Convention"), in failing and/or refusing to conduct independent inquiries into the deaths of the various deceased.
5. On 11 May 2004, at the hearing of the claimants’ application for permission to apply for judicial review, Collins J granted the claimants permission to apply in relation to the two preliminary issues to be determined in these proceedings and (inter alia) ordered that the remainder of the application for permission be stayed until the determination of those preliminary issues: see paragraph 1 of the order of Collins J, made by consent on 11 May 2004 ("the 11 May Order").
6. Accordingly, these proceedings are concerned with the determination of the following two preliminary issues, as modified later by agreement between the parties (as to which, see paragraph 8 below): see the terms of paragraph 2 of the 11 May Order:

   "2.There shall be a hearing to determine the following preliminary issues:

   2.1Whether the European Convention of [Human] Rights and the Human Rights Act 1998 apply to the circumstances of this case; and

   2.2Whether the procedural duty under Article 2 of the European Convention of Human Rights has been violated by the Defendant."

7. By the same Order, Collins J also granted permission to amend the original claim form as follows: (i) to include Daoud Mousa (the father of Baha Mousa: as to whom, see below) as a new claimant and (ii) to amend the original grounds of the application to include (where relevant) a complaint that the Secretary of State has violated the equivalent procedural obligation under article 3 of the Convention (prohibition of torture), for the same reasons as those alleged in respect of article 2 (see paragraph 5 of the 11 May Order).
8. By agreement between the parties, the claims considered by the court for the purpose of determining the two preliminary issues have been limited to six illustrative cases, namely the claims brought by the first five original claimants, plus the claim brought by Daoud Mousa. As is apparent from the relevant factual circumstances (as to which, see below), Daoud Mousa’s claim differs from those of the first five claimants in that his son’s death occurred as a result of the treatment he received after he had been arrested by and whilst he was in the custody of British soldiers. Accordingly, if the HRA and the Convention do apply to the circumstances of this case, Daoud Mousa’s claim is one that raises issues under both articles 2 and 3. The parties therefore have sensibly agreed that, when determining the second preliminary issue (see paragraph 2.2 of the 11 May Order, quoted in paragraph 6 above), this Court should also consider whether the Secretary of State has violated the procedural obligation under article 3.



General background

9. The current military operations by the United Kingdom in Iraq have been and are being conducted under the codename "Operation Telic" and are operations in which British troops form part of a USA-led Coalition ("the Coalition"). Operation Telic was divided into three phases: (i) phase 1, planning and deployment, (ii) phase 2, major combat operations and (iii) phase 3, stabilisation and reconstruction. The deaths with which this case is concerned all occurred during phase 3.
10. Phase 2 of Operation Telic (major combat operations) began on 20 March 2003. By 5 April 2003, the British had captured Basra and by 9 April 2003, US troops had gained control of Baghdad. Major combat operations in Iraq were declared complete on 1 May 2003. In the post-conflict period that followed, British forces have remained in Iraq, together with other Coalition Forces, operating under a joint command, headed by a US General.
11. It is accepted by the Secretary of State that, between 1 May 2003 and 28 June 2004 ("the relevant period"), in those areas of southern Iraq where British troops exercised sufficient authority, the United Kingdom became an occupying power under the relevant provisions of the Regulations annexed to the 1907 Hague Convention ("the Hague Regulations") and the 1949 Fourth Geneva Convention ("the Fourth Geneva Convention"). As will be explained in greater detail later in this judgment, the Iraqi Interim Government assumed full responsibility and authority for governing Iraq on 28 June 2004. Thereafter, the United Kingdom ceased to be an occupying power and the Hague Regulations and the Fourth Geneva Convention ceased to apply.
12. As already stated, the six deaths with which these proceedings are concerned all occurred in Iraq during the relevant period. It is accepted by the Secretary of State that each of the deaths in question occurred in areas of Iraq (namely the Al Basrah and Maysan provinces) in which British forces were stationed and in respect of which it is also accepted that the United Kingdom was an occupying power at all material times under the relevant provisions of the Hague Regulations and the Fourth Geneva Convention.
13. It is also accepted by the Secretary of State that in the first, second, fourth and fifth cases with which these proceedings are concerned, the deceased were shot and killed by British troops. In the third case, the Secretary of State accepts that the deceased (a bystander) was shot and killed in the course of an exchange of fire between British troops and Iraqi gunmen. However, it is the Secretary of State’s position that it is not clear whether the deceased was killed by a shot fired by a British soldier or by an Iraqi gunman. So far as concerns the sixth case (Daoud Mousa), it is accepted by the Secretary of State that the deceased died whilst in the custody of British troops.



The post-conflict government and administration of Iraq

14. On 16 April 2003, US General Tommy Franks issued a "Freedom Message", in which he announced the creation of the Coalition Provisional Authority ("the CPA"), a civilian administration that would exercise powers of government temporarily in Iraq.
15. It is not necessary for the purposes of this judgment to give a detailed account of the post-conflict administration of Iraq. However, in the paragraphs that follow, we have sought to summarise the main relevant events during the period from the creation of the CPA until its dissolution on 28 June 2004 and the transfer of authority from the CPA to the sovereign Iraqi Interim Government on the same date.
16. On 8 May 2003, the US and UK permanent representatives to the United Nations in New York (the "UN") wrote to the then president of the Security Council. Their letter stated (inter alia) that, in order to meet the Coalition’s objectives and obligations in the post-conflict period in Iraq:

    "the United States, United Kingdom and Coalition partners, acting under existing command and control arrangements through the Commander of Coalition Forces, have created the Coalition Provisional Authority (CPA), which includes the Office of Reconstruction and Humanitarian Assistance (ORHA), 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."

The permanent representatives’ letter to the Security Council went on to state:

"The United States, United Kingdom, and Coalition partners are facilitating the establishment of representative institutions of government, and providing for the responsible administration of the Iraqi financial sector, for the transparent operation and repair of Iraq’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 Iraqi authorities as early as possible."



17. On 13 May 2003, the US Secretary for Defence, Donald Rumsfeld, issued a memorandum formally appointing Ambassador Paul Bremer as Administrator of the CPA with responsibility for the temporary governance of Iraq. To that end, the CPA acted as the administrative body for administrative decision-making and for issuing legislation, with all administrative and legislative decisions being taken by Ambassador Bremer.
18. On 22 May 2003, the Security Council unanimously adopted resolution 1483 which noted the permanent representatives’ 8 May letter and recognised "the specific authorities, responsibilities, and obligations under applicable international law of these states under unified command (the "Authority")." Paragraph 4 of resolution 1483 called upon the Authority (in practice the CPA), consistent with the UN Charter and relevant international law "to promote the welfare of the Iraqi 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 Iraqi people can freely determine their own political future." Paragraph 8 of resolution 1483 provided for the appointment of a UN Special Representative for Iraq, who was to assist the people of Iraq in conjunction with the Authority in the restoration and establishment of national and local institutions for representative governance in Iraq. Paragraph 9 supported the formation by the people of Iraq of an Iraqi interim administration, as a transitional administration run by Iraqis until the people of Iraq established an internationally recognised representative government.
19. From 16 May 2003 onwards, the CPA issued a series of instruments, namely 11 regulations ("R1-11"), 97 orders ("O1-97"), 14 memoranda ("M1-14") and 11 public notices ("PN1-11"). CPA Regulation 1 of 16 May 2003 defined the authority of the CPA in the following terms:

    "The CPA is vested with all executive, legislative and judicial authority necessary to achieve its objectives, to be exercised under relevant UN Security Council resolutions, including resolution 1483 and the laws and usages of war. This authority shall be exercised by the CPA Administrator."



20. Although the CPA was staffed by various nationalities from Coalition countries, in practice it was dominated by US personnel, who made up the majority of its staff. The CPA was not a subordinate organ or authority of the United Kingdom. The UK was represented through the office of the UK special representative. Although the UK special representative and his office sought to influence CPA policy and decisions, he had no formal decision-making power within the CPA. As already indicated, all the CPA’s administrative and legislative decisions were taken by Ambassador Bremer.
21. The CPA administration was divided into regional areas, of which CPA South is the relevant area for the present case. During the relevant period, CPA South remained under British responsibility and control, with a British regional coordinator. It covered the southernmost four of Iraq’s eighteen provinces, each having a governorate coordinator. British troops were deployed in the same area (see below).
22. The various instruments issued by the CPA contained and provided a wide range of measures for the temporary governance of Iraq. It is helpful to refer to some of the various instruments, in order to give an indication of the general breadth and detail of the subject matter covered.
23. Provision was made for the dissolution of the Iraqi defence and military agencies in readiness for replacement (O2) and the creation of a new Iraqi army (O22), a code of military discipline (O23) and an Iraqi civil defence corps (O28). The former political dominance of the Ba’ath party was dismantled (M1, M7 and O1), its assets were dealt with (O4) and a special de-Ba’athification council was established (O5).
24. Other matters dealt with by the CPA included establishing Iraqi criminal law procedures (M3) and the creation of a central criminal court (PN6), a ministry of justice (O32), an Iraqi special tribunal (to try Iraqis for war crimes etc: O48) and a ministry of human rights (O60). Provision was also made for enhanced sentences (PN10, PN11), notification of criminal offences (O41), management of prisons (O10), review of the justice system (O15) and an Iraqi judiciary (M12).
25. The CPA set up a wide range of government agencies, including a development fund (R2), a governing council (R6, M6), a strategic review board (R7), a ministry of science and technology (O24), a department of border enforcement (O26), a ministry of municipalities and public works (O33), a ministry of environment (O44), a ministry of displacement and migration (O50) and a communications and media commission (O65).
26. The CPA also dealt with such fundamental matters as (inter alia) taxation (O37, O49), banking (O18, O20, O40, O56), foreign investment (O39), regulation of oil distribution (O36), new Iraqi banknotes (O43), company law (O64), trading agencies (PN3), media and communications (PN4, O11, O14), public broadcasting (O66), status of Coalition personnel (PN8), confiscation of the proceeds of crime (O25), public sector employment (O30), disqualification from public office (O62), local government powers (O71), weapons’ control (M5, O3), trade liberalisation (O12), management and use of public property (O9) and freedom of assembly (O19).
27. On 13 July 2003, following two national conferences and widespread consultations, the Iraqi Governing Council ("the IGC") announced its formation. On the same day CPA Regulation 6 recognised the IGC formally, in line with resolution 1483, as the principal body of the Iraqi Interim Administration and stated that the IGC was the body with which the CPA was to "consult and co-ordinate on all matters involving the temporary governance of Iraq."
28. On 14 August 2003 the Security Council adopted resolution 1500, which welcomed the establishment of the IGC as "an important step towards the formation by the people of Iraq towards an internationally recognized representative Government that will exercise the sovereignty of Iraq."
29. On 18 August 2003 the IGC established a constitutional preparatory committee to produce recommendations on how to take forward the process leading to the drafting of a new permanent constitution for Iraq. On 2 September 2003, the IGC announced the appointment of 25 interim ministers. In the period that followed, the various ministries were transferred to the full authority of their Iraqi ministers in stages as their capacities developed – four in April 2004, a further seven in May 2004 and the remaining fifteen in June 2004.
30. On 5 October 2003, the constitutional preparatory committee reported to the IGC, setting out the options for the process of drafting a new permanent constitution for Iraq.
31. On 16 October 2003, the Security Council unanimously adopted resolution 1511 which reaffirmed the sovereignty and territorial integrity of Iraq and underlined the temporary nature of the exercise by the CPA of the specific responsibilities, authorities and obligations under applicable international law that had been recognised in resolution 1483, and that those responsibilities, authorities and obligations would cease when an internationally recognised, representative government established by the people of Iraq assumed those responsibilities. In addition, resolution 1511 determined that the IGC and its ministers were the principal bodies of the Iraqi interim administration which "embodies the sovereignty of the state of Iraq during the transitional period until an internationally recognised, representative government is established and assumes the responsibilities of the Authority."
32. Resolution 1511 also called upon the Authority (i.e. the CPA) to return government responsibilities and authorities to the people of Iraq as soon as practicable and invited the IGC to provide the Security Council, no later than 15 December 2003, with a timetable and programme for the drafting of a new constitution for Iraq and for the holding of democratic elections under that constitution. The same resolution also determined that the provision of security and stability was essential to the successful completion of the political process in Iraq and authorised a multi-national force ("MNF") to take all necessary measures to contribute to the maintenance of security and stability in Iraq.
33. On 15 November 2003, the IGC promulgated an agreement on the political process, setting out a timetable and programme for the drafting of a new constitution for Iraq and for the holding of democratic elections under that constitution, as requested in resolution 1511. The CPA and the UK special representative signified their acceptance of the process by signing the agreement. Amongst other things, the agreement provided for a swift progressive transfer of authority from the CPA to a provisional Iraqi government by 30 June 2004.
34. On 8 March 2004, the IGC promulgated the transitional administrative law, which provided a temporary legal framework for the governance of Iraq for the transitional period from the establishment of an interim Iraqi government on 30 June 2004 until the formation of an elected Iraqi government after the adoption of a permanent constitution.
35. On 27 April 2004, after extensive consultations in Iraq, the UN special adviser Mr Lakhdar Brahimi announced the outline of the UN’s plan for the Iraqi Interim Government.
36. On 1 June 2004, Mr Brahimi announced the formation of the Iraqi Interim Government, which was to assume full sovereign powers on 30 June 2004. CPA Regulation 10 acknowledged that "the individuals designated as members of the Iraqi Interim Government will exercise authorities in their respective ministries effective June 1, 2004 until such time as the Iraqi Interim Government assumes full governance authority for Iraq..."
37. Also on 1 June 2004, the IGC adopted an annex to the transitional administrative law encapsulating the structure and powers of the Iraqi Interim Government and then formally dissolved itself, as recognised in CPA regulation 9.
38. In fact, at the request of Iraqi Prime Minister Allawi, the transfer of authority from the CPA to the Iraqi Interim Government took place on 28 June 2004, two days ahead of schedule. At a brief ceremony in Baghdad, Ambassador Bremer handed over to the Iraqi President a letter to the Iraqi Chief Justice, noting that, as recognised in resolution 1546, the CPA ceased to exist on 28 June. Ambassador Bremer and the UK special representative for Iraq left Iraq shortly after the ceremony. The Iraq Interim Government under the presidency of Ghazi al Yawr is now the sole sovereign authority of Iraq. All Iraq ministries are now under full Iraqi control.
39. The UK’s occupation of southern Iraq came to an end on 28 June 2004. British troops remain in Iraq at the invitation of the new Iraqi Government and under UN auspices. To the extent that the UK had a jurisdiction of its own to exercise as an occupying power, that jurisdiction came to an end on 28 June 2004. British forces now assist the Iraq government in the exercise to maintain law and order.



The position of The United Kingdom’s armed forces in Iraq during the relevant period (i.e. 1 May 2003 to 28 June 2004)

40. Although major combat operations were declared complete on 1 May 2003, hostilities did not all cease on that date. In the words of Lieutenant General Sir John Reith ("General Reith"), the United Kingdom chief of joint operations, "The situation in Iraq has remained volatile and in many areas hostile, resulting in an extremely challenging operational environment for Coalition Forces" (see General Reith’s witness statement, paragraph 10). Brigadier William Hewitt Moore ("Brigadier Moore"), who was in command of the UK 19 Mechanised Brigade whilst it was deployed in Iraq during part of the relevant period (i.e. June to November 2003), described the post-conflict situation in Iraq in the following terms (see paragraphs 10 to 14 of Brigadier Moore’s witness statement):

    "10. Iraq is the most volatile and violent place in which I have served. The population as a whole possessed a lot of weaponry, with at least two weapons in most households. In addition, the tribes, criminal gangs, and terrorist groups were very well armed with heavy machine guns, rocket-propelled grenades, bomb-making kit and a wide variety of other weapons.

    11. The Rule of Law, which normally operates in a civil society, simply did not exist when we arrived in Iraq. The police were ineffective, they were not respected, they were corrupt, and they were easily intimidated by the tribes

    12. The area was rife with tribal feuds and organised crime. Extortion, kidnapping, carjacking, looting and oil smuggling were the key criminal pursuits. When the criminals were conducting these activities they went heavily armed and they were always ready to shoot at us if we came across them. I suspect we had 2 or 3 shooting incidents involving armed criminals every night.

    13. Tribal feuds were often extremely violent and dangerous where heavy machine guns were regularly fired at each other.

    14.Terrorists, who included the former regime extremists, targeted us quite actively. Their attacks ranged from drive-by shootings to bombings. "
    

41. During the relevant period the coalition forces consisted of six divisions that were under the overall command of US generals. Four were US divisions and two were multi-national. Each division was given responsibility for a particular geographical area in Iraq. The United Kingdom was given command of the multi-national division (south east) (MND (SE)), which comprised the provinces of Al Basrah, Maysan, Thi Qar and Al Muthanna and is an area approximately twice the size of Wales with a total population of about 4.6 million. During the relevant period the total number of Coalition troops deployed in MND (SE) was about 14,500, of which about 8,150 were UK forces, giving a troops to population ratio of about 1:317. By way of comparison, the ratio of Turkish troops to population in northern Cyprus (the subject matter of Strasbourg jurisprudence, see below) was in the region of 1:7.
42. The main theatre for operations by UK forces in MND (SE) has been the Al Basrah and Maysan provinces, with a total population of about 2,760,000. Approximately 8,119 British troops were deployed in Al Basra and Maysan provinces, giving a troops to population ratio of about 1:340.
43. From 1 May 2003 onwards, British forces in Iraq carried out two main functions. The first was to maintain security in the MND (SE) area, in particular in Al Basra and Maysan provinces. The principal security task was the effort to re-establish the Iraqi security forces, including the Iraqi police. Other tasks included patrols, arrests, anti-terrorist operations, policing of civil demonstrations, protection of essential utilities and infrastructure and protecting police stations. According to General Reith (see paragraph 46 of his witness statement), UK military records show that, as at 30 June 2004, there had been approximately 178 demonstrations and 1050 violent attacks against Coalition forces in MND (SE) since 1 May 2003. The violent attacks consisted of 5 anti-aircraft attacks, 12 grenade attacks, 101 improvised explosive devices ("IEDs"), 52 attempted IEDs, 145 mortar attacks, 147 rocket propelled grenade attacks, 535 shootings and 53 others. During the same period, 15 British troops have been killed as a result of attacks on UK forces. Of Coalition forces as a whole, as at that time 743 had been killed and 5,221 wounded. Over the same period, some 395 members of the Iraqi security forces had also been killed.
44. The second main function of British troops has been the support of the civil administration in Iraq in a variety of ways, from liaison with the CPA and IGC and local government, to assisting with the rebuilding of the infrastructure (see General Reith’s witness statement, paragraphs 11 to 18 and 22 to 24).
45. The use of force by British troops during operations is covered by the appropriate Rules of Engagement ("ROE"). The ROE governing the use of lethal force by British troops in Iraq during the relevant period is the subject of guidance contained in a card issued to every soldier, which is known as Card Alpha (see General Reith’s witness statement, paragraph 47). Card Alpha is to all intents the relevant ROE and is in the following terms:

    "CARD A – GUIDANCE FOR OPENING FIRE FOR SERVICE PERSONNEL

    AUTHORISED TO CARRY ARMS AND AMMUNITION ON DUTY

    GENERAL GUIDANCE

    1. 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

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

    PROTECTION OF HUMAN LIFE

    3. 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

    4. 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.You or others in the immediate vicinity are under armed attack.

5. You are to challenge by shouting:

"NAVY, ARMY, AIR FORCE,

STOP OR I FIRE." Or words to that effect.

OPENING FIRE

6. If you have to open fire you are to:

a.Fire only aimed shots,

AND

b.Fire no more rounds than are necessary,

AND

Take all reasonable precautions not to injure anyone other than your target."



46. In paragraph 49 of his witness statement, General Reith acknowledged that Coalition forces have used lethal force against Iraqi civilians on a number of occasions since 1 May 2003. UK military records show that between May 2003 and March 2004, 49 Iraqis are known to have been killed in incidents in which British troops have used force.



Investigations into civilian deaths

47. On 21 June 2003, the general officer commanding 1 UK Armoured Division, who was in command of MND(SE) at the time, 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 marshall was to be informed. Non-commissioned officers from the Royal Military Police (RMP) were then to evaluate the incident and decide whether it fell within the ROE. If it was decided that the incident did come within the ROE, then statements were to be recorded and a completed bulletin submitted through the chain of command. If the incident fell outside the ROE and involved death or serious injury, the investigation was to be handed to the RMP (Special Investigation Branch) by the divisional provost marshall at the earliest opportunity.
48. However, Brigadier Moore decided that this initial policy should be revised so that any decision whether to initiate an RMP (SIB) investigation was taken at a much higher level. The initial policy was therefore replaced by further policies issued by MND (SE) during the relevant period, as described in the following paragraphs of General Reith’s witness statement:

    "53. (The 21 June 2003 policy) was replaced on 28 July 2003 by a further policy issued by MND (SE) This replacement policy required that all such incidents should be reported to MND (SE) by means of a serious incident report immediately following the incident. If the Commanding Officer (CO) of the soldier was satisfied, on the basis of the information available to him, that the soldier had acted lawfully and within the rules of engagement, then there was no requirement to initiate an investigation by the military police. The CO would record his decision in writing to his Brigade Commander. If the CO was not so satisfied, or if he had insufficient information to arrive at a decision, he was required to initiate a military police investigation.

• Between January and April 2004 there was a further reconsideration of this policy. This was prompted by the fact that the environment had become less hostile and also by the considerable media and Parliamentary interest in incidents involving UK forces in which Iraqis had died. On 24 April, a new policy was adopted by MND (SE) which required all shooting incidents involving UK forces which result in a civilian being killed or injured to be investigated by SIB (RMP). Exceptionally the Brigade Commander may decide that an investigation is not necessary and in any such case the decision must be notified to the Commander MND (SE) in writing."


49. In paragraphs 36 and 37 of his witness statement, Brigadier Moore described the form of an investigation during his time in Iraq in the following terms:

    "36. 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.

 

• Once he had investigated the incident, the Commanding Officer would then forward a report to me, stating whether in his opinion the soldiers had acted within the Rules of Engagement, or whether the incident was required to be referred to the Special Investigation Bureau of the Royal Military Police (SIB). The Commanding Officer was required to call in the SIB to investigate if there was any doubt that an individual had not acted within the Rules of Engagement. If his decision was that an SIB investigation was needed, he would require this himself directly."



50. The provost marshall of the British led MND (SE) for the period November 2003 until May 2004 was Lieutenant Colonel Jeremy Troy Green ("Colonel Green"). In paragraphs 22 and 23 of his witness statement, Colonel Green confirmed that the responsibility for requiring an RMP (SIB) investigation into any incidents where third parties had allegedly been killed or seriously injured in Iraq by UK forces rested with the military chain of command in theatre, and not the RMP chain of command. The decision by the military chain of command whether or not to engage the RMP (SIB) to investigate had to be taken within 24 hours of an incident taking place. The chain of command was required to take legal advice from the directorate of army legal services before reaching such a decision and had to submit its decision in writing with that advice and any evidence relied upon to the general officer in command of MND (SE).
51. Captain Gayle Logan ("Captain Logan") deployed to Iraq with the RMP (SIB) in June 2003 and remained there until October 2003 as the officer commanding ("OC") 61 Section RMP (SIB), which was responsible for undertaking SIB operations in Iraq within MND (SE). As its OC, Captain Logan’s duties included management of all the investigations that were undertaken by 61 Section. Section 61 was responsible for the investigation of all serious crimes committed by members of the British forces within MND (SE). These were limited to crimes within the British army or any other incidents involving the military, e.g. incidents involving contact between the military and civilians and any special investigations tasked to it (see paragraph 3 of Captain Logan’s witness statement).
52. It was therefore Captain Logan’s responsibility to investigate incidents involving civilian deaths caused by British soldiers. These investigations would be triggered either (i) if the SIB was asked to investigate by the commanding officer of the units concerned or (ii) if the SIB otherwise became aware of an incident prior to notification. However, the latter type of investigation would be brought to an end if the SIB was instructed to stop by either the provost marshall or the CO of the unit involved (see paragraph 5 of Captain Logan’s witness statement).
53. SIB investigations in Iraq were hampered by a number of difficulties such as security problems, lack of interpreters, cultural difficulties (e.g. the Iraqi practice of burying a body within 24 hours and leaving it undisturbed for 40 days), the lack of pathologists and post-mortem facilities, the lack of records, problems with logistics and the climate and general working conditions (see paragraphs 9 to 39 of Captain Logan’s witness statement).
54. On conclusion of an SIB investigation, the investigating officer would write a report, presenting the evidence to the CO of the unit involved. Such a report would include a covering letter and a brief but factually accurate and complete summary of the evidence, together with the evidence of relevance to the investigation in the form of statements from witnesses and investigators. The report would not contain any decision as to the facts or any conclusions as to what had or might have happened. The SIB report just presented the facts as shown by the evidence (see paragraph 7 of Captain Logan’s witness statement).



The facts of each of the six cases

55. We now turn to summarise the main facts of each of the six cases with which these proceedings are concerned.
56. Case 1: Hazim Jum’aa Gatteh Al-Skeini.The first claimant, Mazin Jum’aa Gatteh Al-Skeini ("Mazin Al-Skeini"), is the brother of the deceased, Hazim Jum’aa Gatteh Al-Skeini ("Hazim Al-Skeini"), who was unemployed and aged 23 at the time of his death. Hazim Al-Skeini was one of two Iraqis from the Beini Skein tribe who were shot dead in the Al Majidiyah area of Basra just before midnight on 4 August 2003 by Sergeant Ashcroft, the commander of a British patrol from the 1^st Battalion The King’s Regiment.
57. In his witness statement, Mazin Al-Skeini explained that, during the evening in question, various members of his family had been gathering at a house in Al Majidiyah for a funeral ceremony. In Iraq it is customary for guns to be discharged at a funeral. Mazin Al-Skeini stated that he was engaged in receiving guests at the house, as they arrived for the ceremony, and saw his brother fired upon by British soldiers as he was walking along the street towards the house. According to Mazin Al-Skeini, his brother was unarmed and only about ten metres away when he was shot and killed. He had no idea why the soldiers opened fire.
58. According to the British account of the incident, the patrol saw and heard heavy gunfire from a number of different points in Al Majidiyah. The intensity of firing appeared to increase as the patrol approached the area on foot and in darkness. The patrol thought that a firefight between rival groups was in progress. When the patrol encountered two Iraqi men in the street, Sergeant Ashcroft opened fire because the two men were armed and Sergeant Ashcroft considered them to represent an immediate threat to his life and to the lives of the other members of the patrol. Both Iraqis (one of them the deceased) were killed by the shots fired by Sergeant Ashcroft.
59. The following day, Sergeant Ashcroft produced a written statement describing the incident. This was passed to the CO of the 1^st Btn. The King’s Regiment, Lieutenant Colonel Ciaran Griffin (Colonel Griffin), who took the view that the incident fell within the ROE and duly wrote a report to that effect. Colonel Griffin sent the report to Brigade, where it was considered by Brigadier Moore. Brigadier Moore queried whether the other man had been pointing his gun at the patrol. Colonel Griffin wrote a further report that dealt with this query to Brigadier Moore’s satisfaction. The original report was not retained in Brigade records. Having considered Colonel Griffin’s further report, as did his deputy chief of staff and his legal adviser, Brigadier Moore was satisfied that the actions of Sergeant Ashcroft did fall within the ROE and so he did not order any further investigation (see paragraphs 47 and 48 of Brigadier Moore’s witness statement).
60. Case 2: Muhammad Abdul Ridha Salim.The second claimant is Fatima Zabun Dahesh, the widow of Muhammad Salim, who was shot and fatally wounded by Sergeant Catterall of 1^st Btn The King’s Regiment shortly after midnight on 6 November 2003. On 7 November 2003, Muhammed Salim died in hospital of the wound received as a result of the shooting. He was then aged 45 and a teacher by occupation. The incident occurred during a house search being carried out by a British patrol in the Badran area of Basra.
61. Fatima Dahesh was not present when her husband was shot. Her account is based on what she was told by those who were present. In her witness statement, Fatima Dahesh stated that, on the 5 November 2003, during Ramadan, Muhammad Salim went to visit his brother-in-law at Mahmood Sabun’s home in Basra. At about 1130 pm British soldiers raided the house. They broke down the front door. One of the British soldiers came face to face with her husband in the hall of the house and fired a shot at him, hitting him in the stomach. Those who were present insist that Muhammad Salim posed no threat to the British soldiers and that he was shot for no reason. The British soldiers took him to the Czech military hospital, where he died on 7 November.
62. According to the British account of the incident, the patrol had received information that a group of men armed with long barrelled weapons, grenades and rocket propelled grenades had been seen entering a house in the Badran area of Basra. The patrol was authorised to carry out a search and arrest operation. After the patrol failed to gain entry by knocking, the door was broken down. Sergeant Catterall entered the house through the front door with two men and cleared the first room. As he entered the second room he heard automatic gunfire from within the house. When Sergeant Catterall moved forward into the next room by the bottom of the stairs, two men armed with long barrelled weapons rushed down the stairs towards him. There was no time to give a verbal warning. Sergeant Catterrall believed that his life was in immediate danger. He fired one shot at the leading man (the deceased) and hit him in the stomach. He then trained his weapon on the second man who dropped his gun. Inquiries of the occupants of the house made by the company commander suggested to him that the patrol might have been deliberately drawn in on one side of a feud about the ownership of some offices.
63. On 6 November 2003, the company commander produced a report of the incident. Having considered the report and spoken to the company commander, Colonel Griffin came to the conclusion that it was a straightforward case in which the incident fell within the ROE and did not require any further RMP investigation. He therefore produced a report to that effect the same day and forwarded it to Brigade, where it was considered by Brigadier David John Rutherford Jones ("Brigadier Jones"). Brigadier Jones 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 Jones also concluded that it was a straightforward case that fell within the ROE and duly issued a report to that effect.
64. Case 3: Hannan Mahaibas Sadde Shmailawi. Hameed Kareem is the widower of Hannan Mahaibas Sadde Shmailawi, who was shot and fatally wounded on 10 November 2003, at the Institute of Education in the Al Maaqal area of Basra, where Hameed Kareem worked unpaid as a night porter and lived with his wife and family.
65. According to Hameed Kareem’s witness statement, at about 8 pm on the evening in question, he and his family were sitting round the dinner table when there was a sudden burst of machine gun fire from outside the building, fired into the building by British soldiers. Bullets struck his wife in the head and ankles. A child was also injured. Hameed Kareen had no idea why the British soldiers fired shots into the building, but he believed that the soldiers did not intend to kill his wife. Although Hannan Shmailawi and the child were taken to hospital, she subsequently died. However, the child did recover.
66. According to the British account of the incident, Hannan Shmailawi was shot during a firefight that took place in Al Maaqal on the night of 10/11 November 2003 between a patrol from 1^st Btn. The King’s Regiment and a number of unknown gunmen. When the area was illuminated by parachute flares, at least 3 men with long barrelled weapons were seen in open ground, two of whom were firing directly at the British soldiers. One of the gunmen was shot dead during this exchange of fire with the patrol. After about 7 to 10 minutes the firing ceased and armed people were seen running away. A woman (the deceased) with a head injury and a child with an arm injury were found when the buildings were searched. Both were taken to hospital.
67. The following morning, the company commander Major Routledge produced a report concerning the incident, together with statements from the soldiers involved. After he had considered the report and statements, Colonel Griffin came to the conclusion that it was a straightforward case in which the incident fell within the ROE and did not require any further RMP investigation. He duly produced a report to that effect, which he then forwarded to Brigade. The report was considered by Brigadier Jones, who also discussed the matter with his deputy chief of staff, his legal adviser and Colonel Griffin. As a result, Brigadier Jones came to the conclusion that the incident fell within the ROE and required no further investigation.
68. Case 4: Waleed Sayay Muzban.Fadil Muzban is the brother of Waleed Sayay Muzban, aged 43, who was shot and fatally injured on the night of 24 August 2003 in the Al Maqaal area of Basra by Lance Corporal Singleton of the Kings Own Scottish Borderers.
69. Fadil Muzban was not present when his brother Waleed was shot. However, in his witness statement Fadil Muzban has given a short account of what he understands to have happened. According to Fadil Muzban, his brother was returning home from work at about 8.30 pm on the evening in question. He was driving a 1993 model, 9-seater Kia minibus along a street called Souq Hitteen. For no apparent reason, the Kia "came under a barrage of bullets", as a result of which Waleed was mortally wounded in the chest and stomach.
70. At the time, Lance Corporal Singleton was temporarily attached to the 1^st Btn The King’s Regiment and was a member of a patrol carrying out a perimeter check during the evening of 24 August 2003. According to the British account of the incident, LCpl. Singleton became suspicious of a minibus, with curtains over its windows, that was being driven towards the patrol at slow speed with its headlights dipped. When the vehicle was signalled to stop, it appeared to be trying to evade the soldiers so LCpl Singleton pointed his weapon at the driver and ordered him to stop.
71. The vehicle then stopped and LCpl Singleton approached the driver’s door and greeted the driver (the deceased). 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 LCpl Singleton 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 LCpl Singleton’s weapon. LCpl Singleton had to use force to pull himself free.
72. The driver then accelerated away, swerving in the direction of various other members of the patrol as he did so. LCpl Singleton fired at the vehicle’s tyres and it came to a halt about 100 metres from the patrol. The driver turned and again shouted into the rear of the vehicle. He then appeared to be reaching for a weapon. LCpl Singleton believed that his team was about to be fired on by the driver and others in the vehicle. He therefore fired about 5 aimed shots. As the vehicle sped off, LCpl Singleton fired another 2 shots at the rear of the vehicle before it got away.
73. After a short interval, the vehicle reappeared and screeched to a halt. The driver got out and shouted at the British 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 three bullet wounds in his back and hip areas. He was given first aid and then taken to the Czech military hospital where he died either later that day or the following day.
74. On 29 August 2003, Colonel Griffin sent his initial report concerning the incident to Brigade. In it he stated that he was satisfied that LCpl Singleton believed that he was acting lawfully within the ROE. However, Colonel Griffin went on to express the view that it was a complex case that would benefit from an RMP (SIB) investigation.
75. After Brigadier Moore had considered Colonel Griffin’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 Griffin produced a further report dated 12 September 2003, in which he dealt with the various queries and concluded that an RMP investigation was no longer required. After discussing the matter again with his deputy chief of staff and having taken further legal advice, Brigadier Moore concluded that the case did fall within the ROE.
76. By this stage, Brigadier Moore had been informed that RMP (SIB) had commenced an investigation into the incident. A meeting was convened with the officer commanding SIB, Captain Gail Nugent. The outcome of the meeting was that SIB agreed to stop its inquiries (see paragraphs 49 to 52 of Brigadier Moore’s witness statement). However, the SIB has now reopened the investigation, which is currently ongoing (see paragraph 13 of David Pickering’s witness statement).
77. Case 5: Raid Hadi Sabir Al Musawi.Nuzha Al Rayahi is the mother of Raid Hadi Sabir Al Musawi, an Iraqi police commissioner aged 29, who was shot and fatally wounded by a British soldier from the Queen’s Lancashire Regiment (the "QLR") in the Al Hayyaniyah area of Basra at about midnight on 26 August 2003.
78. In her witness statement about the matter, Nuzha Al Rayahi stated that her son was on duty as a police commissioner on the day in question. It was his job to carry a box of "suggestions and complaints" to the judge’s house in Basra. On his way to the judge’s house, her son had stopped at her house to have dinner. He had then resumed his journey to the judge’s house to deliver the box. On his way there he was shot and seriously wounded by a British patrol. He was taken to hospital, where he died nine weeks later on 6 November 2003.
79. According to the British account of the incident, the shooting occurred shortly after all the lights in the area had been extinguished as the result of a power failure. The patrol heard a gunshot in the immediate vicinity. Corporal Smith was nearest to the sound of the gunfire and ran to the corner of an alleyway, where he illuminated a man (the deceased) standing about 20 metres away. The man was holding an AK rifle and gesticulating with both arms raised. He was also shouting at persons in a courtyard who were out of Corporal Smith’s sight. Corporal Smith continued to illuminate the man and shouted warnings at him. The man turned towards Corporal Smith, brought down his rifle and fired one round at Corporal Smith. Corporal Smith fired a single shot at the man, hitting him in the lower left side and causing him to fall to the ground. The man was then given first aid and taken to hospital.
80. Major Christopher Michael Suss-Francksen ("Major Suss-Francksen") was the Second-in-Command of the QLR at the relevant time. On 27 August 2003, Major Suss-Francksen interviewed the commander of the patrol and each of the two other members of the patrol. Having interviewed the three soldiers, Major Suss-Francksen produced his report of the incident, in which he expressed the view that the shooting was within the ROE. He then forwarded his report to Brigade. Having considered Major Suss-Francken’s report and after discussing the matter with his deputy chief of staff and legal adviser, Brigadier Moore concluded that Corporal Smith had acted within the ROE. He therefore saw no reason to order an SIB investigation.
81. Case 6: Baha Mousa.Daoud Mousa has been a policeman for 24 years and is now a colonel in the Basra police force. He is the father of Baha Mousa, who was aged 26 when he died whilst in the custody of the British Army, three days after having been arrested by soldiers from a unit of the QLR on 14 September 2003.
82. According to Daoud Mousa, on the night of 13/14 September 2003, his son Baha Mousa had been working as a receptionist at the Ibn Al Haitham Hotel in Basra. Early in the morning of the 14 September, Daoud Mousa went to the hotel to pick up his son from work. On his arrival he noticed that a British unit from the QLR had surrounded the hotel. He saw soldiers breaking open a safe. They had a plastic bag in which they put various items that they found in the safe. Daoud Mousa also noticed that three of the soldiers were pocketing money taken from the safe. Daoud Mousa reported what he had seen to the officer in charge, whom he recalls being called "Lieutenant Mike". Lieutenant Mike called the soldiers over, reprimanded them, took their weapons and ordered them inside an army personnel carrier.
83. Whilst this was going on, Daoud Mousa noticed that his son and six other hotel employees were lying on the floor of the hotel lobby with their hands behind their heads. Daoud Mousa expressed his concern to Lieutenant Mike, who reassured him that it was a routine investigation that would be over in a couple of hours.
84. On the third day after his son had been detained, Daoud Mousa was visited by a military police unit. He was told that his son had been killed in custody and was asked to accompany them to identify the corpse. What happened thereafter is best described in Daoud Mousa’s own words, as follows (see paragraphs 8 and 9 of his witness statement):

    "8. When I saw the corpse I burst into tears and I still cannot bear to think about what I saw. I was horrified to see that my son had been severely beaten and his body was literally covered in blood and bruises. The cover was removed from his body to allow me to see all of it. He had a badly broken nose. There was blood coming from his nose and mouth. The skin on one side of his face had been torn away to reveal the flesh beneath. There were severe patches of bruising over all of his body. The skin on his wrists had been torn off and the skin on his forehead torn away and there was no skin under his eyes either. I literally could not bear to look at him.

    9.I insisted that there was a proper post-mortem and a proper medical report on my son’s death. A Professor Hill came over from the UK and he conducted an autopsy on Baha. I was not allowed to see a copy of his report. However he told me in front of one of the clerks that he thought that my son had died from asphyxiation. "
    

85. One of the other hotel employees who were arrested on 14 September 2003 was Kifah Taha Al-Mutari. In his witness statement he described what happened at the hands of the British troops after the prisoners had been taken to a British military base in Basra called Darul Dhyafa. According to Kifah Al-Mutari, once the prisoners had arrived at the base, the British soldiers started beating them. Hoods were placed over their heads. The soldiers kicked and punched them in the abdomen. The prisoners were forced to crouch for hours with their arms out straight in front of them. At the same time they were beaten about the neck, chest and genital areas. During the detention, Baha Mousa was taken into another room where he received more beatings.
86. During the night, Kifah Al-Mutari could hear the sound of Baha Mousa moaning in the separate room where he was detained. Kifah Al-Mutari heard him saying that he was bleeding from his nose and that he was dying. The last words that he heard Baha Mousa say were "I am dying blood blood."
87. Brigadier Moore had taken part in the operation in which Baha Mousa was arrested. At the time of his arrest, Brigadier Moore was up on the roof of the hotel. At the end of the operation, he was told that 1 QLR had arrested 9 suspected terrorists. Brigadier Moore did not himself see any evidence of violent arrest.
88. The next thing that Brigadier Moore heard in relation to the matter was the report that he received late on 15 September that Baha Mousa had died whilst being held by 1 QLR and that other prisoners had also been beaten. It was the first case of its kind that Brigadier Moore had come across during his military career. He realised that it was very serious and needed to be investigated by RMP (SIB), which had already been called in by the commanding officer of the QLR. Brigadier Moore did not himself conduct an investigation into the death of Baha Mousa, beyond establishing the basic facts. However, he personally went to considerable lengths to apologise to Baha Mousa’s father and brother for what had happened (including preparing an official statement for publication in a local newspaper) and to reassure them that those responsible for any crime that had been committed would be brought to justice (see paragraphs 55 to 60 of Brigadier Moore’s witness statement).
89. In paragraphs 43 to 48 of her witness statement, Captain Logan described the SIB investigation into the death of Baha Mousa and the difficulties that were encountered. In particular, there were logistical problems with identification parades, the local hospitals were on strike and doctors were unavailable at the time. In the event, arrangements were made for a home office pathologist to be flown out from the UK to carry out the post-mortem in very makeshift conditions. According to Captain Logan, the SIB investigation was concluded in early April 2004 and the report of the investigation distributed to the unit’s chain of command.



Jurisdiction under the Convention

90. We now turn to consider the first question that is raised by the first preliminary issue, namely whether the Convention applies to the circumstances of this case. In order to answer that question it is necessary to carry out a careful analysis of the nature and extent of the Convention’s jurisdiction. We are assisted in this and other issues by the parties’ careful written and oral submissions. We have also been assisted by a written submission lodged by the Redress Trust, which has been permitted to intervene but did not participate in the hearing.



The provisions of the Convention

91. The most important single provision of the Convention for the purpose of defining its jurisdiction has always been treated as article 1, but there are some other provisions to which reference should also be made. Article 1, which is headed "Obligation to respect human rights", provides as follows:

    "The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention."

92. Article 1 stands outside the other sections of the Convention. Thus section I, which is heralded in article 1 itself, is headed "Rights and Freedoms" and defines those rights and freedoms, beginning with article 2. Section II is headed "European Court of Human Rights" (the "Court"). It begins with article 19, which establishes the European Court of Human Rights "[t]o ensure the engagements undertaken by the High Contracting Parties". The jurisdiction of the Court, set out in article 32, "shall extend to all matters concerning the interpretation and application of the Convention", and, by article 32(2) – "In the event of dispute as to whether the Court has jurisdiction, the Court shall decide."
93. Section III, headed "Miscellaneous Provisions", contains an important provision, article 56, headed "Territorial application". It provides as follows:

    "1.Any state may at the time of its ratification or at any time thereafter declare by notification addressed to the Secretary General of the Council of Europe that the present Convention shall, subject to paragraph 4 of this Article, extend to all or any of the territories for whose international relations it is responsible

    3.The provisions of this Convention shall be applied in such territories with due regard, however, to local requirements.

    4.Any State which has made a declaration in accordance with paragraph 1 of this article may at any time thereafter declare on behalf of one or more of the territories to which the declaration relates that it accepts the competence of the Court to receive applications from individuals, non-governmental organisations or groups of individuals as provided by Article 34 of the Convention."

94. Article 57, headed "Reservations", contains a reference in that context to "law then in force in [a State’s] territory", viz –

    "1. Any State may, when signing this Convention or when depositing its instrument of ratification, make a reservation in respect of any particular provision of the Convention to the extent that any law then in force in its territory is not in conformity with the provision"

95. Finally, reference should be made to two aspects of the Convention’s preamble. One is that the parties to the Convention express their motivation in ("Considering") the UN General Assembly’s Universal Declaration of Human Rights proclaimed 10 December 1948 and its aspiration for securing "the universal and effective recognition and observance" of those rights. The other is that the Convention itself was the product of its parties’ common European heritage. Thus the first paragraph of the preamble refers to the Universal Declaration, and its final paragraph reads:

    "Being resolved, as the governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law, to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration."




The travaux préparatoires of the Convention

96. The drafting history of article 1 of the Convention was considered by the European Court of Human Rights (the "Court") for the first time in Bankovic v. Belgium [2001] 11 BHRC 435 (at paras 19/21). That history showed that article 1’s phrase "everyone within their jurisdiction" had originally been drafted as "all persons residing within their territories". That original language had been changed, however, because of a concern that "residing" might be too restrictive if interpreted as requiring the legal indicia of the formal concept of residence. Thus the court quoted the following extracts from the Collected Edition of the Travaux Preparatoires of the European Convention on Human Rights:

    "The Assembly draft had extended the benefits of the Convention to "all persons residing within the territories of the signatory States". It seemed to the Committee that the term "residing" might be considered too restrictive. It was felt that there were good grounds for extending the benefits of the Convention to all persons in the territories of the signatory States, even those who could not be considered as residing there in the legal sense of the word. The Committee therefore replaced the term "residing" by the words "within their jurisdiction" which are also contained in Article 2 of the Draft Covenant of the United Nations Commission" (at vol III, p 260).



97. The next relevant comment prior to the adoption of article 1, made by the Belgian representative on 25 August 1950 during the plenary session of the Consultative Assembly, was to the effect that –

    "henceforth the right of protection by our States, by virtue of a formal clause of the Convention, may be exercised with full force, and without any differentiation or distinction, in favour of nationals of whatever nationality, who on the territory of any one of our States, may have had reason to complain that [their] rights have been violated."



98. The wording did not give rise to any further discussion and the text as it was, and remains, was adopted on the same day (at vol VI, p 132).
99. The Court in Bankovic found this history confirmatory of its conclusion that jurisdiction under the Convention was essentially territorial. Thus it said:

    "63. Finally, the court finds clear confirmation of this essentially territorial notion of jurisdiction in the travaux preparatoires which demonstrate that the expert intergovernmental committee replaced the words ‘all persons residing within their territories’ with a reference to persons ‘within their jurisdiction’ with a view to expanding the convention’s application to others who may not reside, in a legal sense, but who are, nevertheless, on the territory of the contracting states (para 19, above)

    65In any event, the extracts from the travaux preparatoires detailed above constitute a clear indication of the intended meaning of art 1 of the convention which cannot be ignored. The court would emphasise that it is not interpreting art 1 ‘solely’ in accordance with the travaux preparatoires or finding those travaux ‘decisive’; rather this preparatory material constitutes clear confirmatory evidence of the ordinary meaning of art 1 of the convention as already identified by the court (art 32 of the Vienna Convention)."




Other relevant international texts

100. It is convenient to collect under this heading and in one place a number of other international treaty texts which bear on the issue under consideration and the arguments which have been deployed.
101. Thus, a comparison between article 1 of the Convention can be made with the contemporaneous texts of the four Geneva Conventions on the Protection of War Victims of 1949, whose article 1 in each case set out to define their respective scope in the following terms:

     "The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances."



102. Attention is drawn on behalf of the Secretary of State to the width of the language "in all circumstances" and the contrast to be drawn between that and the (1950) Convention’s "within their jurisdiction".
103. In the later Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 1985 (the "Torture Convention"), on the other hand, article 2(1) states:

     "Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction."

The parties were at issue as to whether this could apply to the United Kingdom in Iraq. Mr Greenwood submitted that it did not: the United Kingdom could not have taken legislative or judicial measures of the kind envisaged since legislative authority was in the hands of the CPA and judicial authority was largely in the hands of the Iraqi courts. Mr Singh, however, submitted that the phrase "any territory under its jurisdiction" was in any event plainly wider than article 1 of the Convention’s "within [its] jurisdiction".

104. Regulation 42 of the Hague Regulations (annexed to the 1907 Hague Convention) provides as follows:

     "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."

Mr Singh stressed the importance for the argument on article 1 jurisdiction of the acceptance by the Secretary of State of the application of this test to the United Kingdom in the relevant provinces of Iraq. Similarly, the Fourth Geneva Convention refers to the obligations of an "Occupying Power" in "occupied territory".

105. The obligations under the 1907 Hague Convention only apply between belligerent contracting powers (article 1). Violation of the provisions renders a belligerent power liable to pay compensation (article 2). The Hague Regulations set out the relevant obligations, which are concerned with the laws and customs of war on land. They cover for instance the treatment of prisoners of war ("They must be humanely treated", article 4), limitations on the means of injuring the enemy, and, of special relevance to the present case, "military authority over the territory of the hostile state" (section III). Article 43 provides:

     "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."



106. The Fourth Geneva Convention is concerned with the protection of civilian persons in time of war and contains detailed provisions generally considered to be declaratory of customary international law. Section III is headed "Occupied Territories". The occupying power is entitled to subject the population of an occupied territory to provisions which are essential to enable the power to fulfil its obligations, maintain orderly government and ensure its own security and that of its occupying forces (article 64). "Grave breaches" of the Fourth Geneva Convention are defined to include those, committed against persons protected by it, amounting to "wilful killing, torture or inhuman treatment" (article 147). The parties to it agree to a regime of universal jurisdiction whereby each is "under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts" (article 146). At the request of a party to the conflict, an enquiry must be instituted concerning any alleged violation (article 149). The Geneva Conventions Act 1957 as amended gives effect in the United Kingdom to the "grave breaches" provisions: so that such breaches are triable in the United Kingdom wherever and by whomsoever they were committed.
107. The Torture Convention contains a general obligation, not confined to torture committed in territory under the jurisdiction of the state concerned, to make torture a criminal offence (articles 4 and 7). The Criminal Justice Act 1988 by its section 134 makes torture a criminal offence under the law of the United Kingdom irrespective of where and by whom it was committed. See R v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 3) [2000] AC 147.



The essential structure of the issue between the parties concerning the jurisdiction of the Convention

108. There is a rich jurisprudence emanating from Strasbourg concerning the jurisdiction of the Convention, on which we have been addressed in detailed written and oral submissions on behalf of the claimants and the Secretary of State respectively. It is not possible to do justice to the parties’ submissions without setting out the basic material of that jurisprudence, particularly as the parties are fundamentally at odds as to its correct interpretation.
109. Thus, although there is common ground both that the Convention’s reach is essentially territorial and that there are exceptions to the basic principle of territoriality (Bankovic v Belgium (2001) 11 BHRC 435), there is complete disagreement as to the width, nature, rationale and applicability of the exceptions.
110. On behalf of the claimants, Mr Rabinder Singh QC submits that one or other or both of two principal exceptions are relevant. The first is that there is jurisdiction where a state exercises control over persons or property outside its own territory. He calls that "personal jurisdiction". He finds support for that exception in a line of early Strasbourg cases whose conclusions and rationale, he submits, are approved by Bankovic itself and still hold good in cases post-Bankovic. The second exception is that there is jurisdiction where a state has "effective control of an area" outside its own territory. The principal line of authority for that exception, he submits, is to be found in the development of Strasbourg jurisprudence concerning Turkey’s responsibility for breach of human rights in northern Cyprus following Turkey’s 1974 invasion of the island. He submits that this rationale is again approved in Bankovic. He submits that the overlapping principle is that of control, whether of persons or of land, and that these two exceptions are dual strands within what is ultimately a single principle. The principle is applicable to the present complaints because of the Secretary of State’s acceptance that the United Kingdom, through its armed forces, was an occupying state for the purposes of the 1907 Hague Convention and the Fourth Geneva Conventions under international humanitarian law (see paras 11 and 104/106 above).
111. On behalf of the Secretary of State, Mr Christopher Greenwood QC acknowledged that, for the purposes of the Hague and Geneva Conventions and in the relevant areas of southern Iraq (Basra and Maysan provinces) where the deaths complained of in these proceedings occurred and at the time of their occurrence, the United Kingdom was an occupying state and was so during the period, which he emphasises was relatively short, between 1 May 2003, when major combat operations were declared complete, and 28 June 2004, when the Iraqi Interim Government assumed full responsibility and authority for governing Iraq.
112. However, he disputed that such occupancy amounted either ipso facto or on the particular facts of this case to such "effective control of an area" as came within the exceptional jurisdiction known by that phrase and recognised in Strasbourg for the purposes of the Convention. Still more fundamentally, he submitted that the exceptional jurisdiction derived from "effective control of an area" was, in Strasbourg jurisprudence, confined to situations such as northern Cyprus where the area in question in any event fell within Convention territory, even if not within the home territory of the defendant state.
113. He contrasted that situation with the facts of this case, where Iraq has never been within the territorial jurisdiction of any Convention state. As for the claimants’ reliance on an alternative exceptional doctrine of personal jurisdiction, he denied that such a doctrine existed at all in any principled form, other than as a handful of disparate and truly exceptional cases, reflecting international law concepts of exceptional state sovereignty in relation to such matters as embassies and consulates, ships and aircraft, none of which applied to the situation in Iraq.
114. The parties also divided over their reading of Bankovic itself. On the claimants’ side, it was just one among a long line of Strasbourg authorities. On its own facts it was understandable that it emphasised the essentially territorial nature of jurisdiction under the Convention, for it arose from the aerial bombing of Serbia by NATO forces who lacked any control of the land or any authority over its citizens. As such, it had nothing to do with the situation in Iraq. It was not the first, even if it was up to now perhaps the most important, of the authorities which emphasised the territorial nature of Convention jurisdiction. In any event it continued to recognise prior authorities in which the two exceptions relied on by the claimants had been developed as a matter of principle. Moreover, further cases since Bankovic continued to demonstrate that those principled exceptions remained as valid as ever at today’s date.
115. On the part of the Secretary of State, however, Bankovic was a watershed. It was the first occasion on which the Strasbourg Court, guided by principles of international law, had undertaken a fundamental and principled review of jurisdiction under the Convention. Even if earlier cases were not doubted in their outcomes, they were subject to a fresh rationalisation, so that what at an earlier stage may have seemed a matter of broad principle, had to be re-evaluated as narrow exceptions. Nothing since Bankovic altered that perception of it as a definitive watershed. Cases, as in northern Cyprus, of "effective control" were to be understood as confined to control of the territories of the Convention states themselves. A concept of "personal jurisdiction" could not live with the essentially territorial jurisdiction of the Convention without undermining the latter.
116. In the light of these conflicting submissions, there is no alternative to reviewing in detail the Strasbourg authorities presented to us. To give focus and point to that review, while at the same time mindful of the different readings given by the parties to Bankovic itself, we think it is appropriate and necessary to start with some reference to the Court’s reasoning in Bankovic, before we put it in its place as part of a chronological account of the Strasbourg jurisprudence.



Bankovic v. Belgium (2001)

117. The applicants in Bankovic were citizens of the Federal Republic of Yugoslavia (FRY). They were either injured by, or relatives of those killed by, the NATO bombing in April 1999 of the Serbian radio and television headquarters (Radio Televizje Srbije or RTS). Articles 2, 10 and 13 of the Convention were invoked. FRY was not, however, a state party of the Convention. The respondent governments included not only Belgium but other members of NATO who were also state parties of the Convention, among them the United Kingdom. The acts complained of occurred in FRY, outside the territorial jurisdiction of the respondent states and outside any Convention territory. The dominant issue to be tried was "Whether the applicants and their deceased relatives came within the ‘jurisdiction’ of the respondent states within the meaning of art 1 of the convention" (at 443f). The case was heard by the Grand Chamber of the Court (see articles 30 and 43).
118. The Court noted (at para 54) that –

     " the real connection between the applicants and the respondent states is the impugned act which, wherever decided, was performed, or had its effects, outside of the territory of those states (the extra-territorial act). It considers that the essential question to be examined therefore is whether the applicants and their deceased relatives were, as a result of that extra-territorial act, capable of falling within the jurisdiction of the respondent states"



119. It then found the applicable rules of interpretation in the Vienna Convention and thus in relevant rules of international law. On the question of the meaning of the words in article 1 "within their jurisdiction", the Court concluded as follows:

     "59. As to the ‘ordinary meaning’ of the relevant term in art 1 of the convention, the court is satisfied that, from the standpoint of public international law, the jurisdictional competence of a state is primarily territorial. While international law, does not exclude a state’s exercise of jurisdiction extra-territorially, the suggested bases of such jurisdiction (including nationality, flag, diplomatic and consular relations, effect, protection, passive personality and universality) are, as a general rule, defined and limited by the sovereign territorial rights of the other relevant states (Mann ‘The Doctrine of Jurisdiction in International Law’ RdC 1964, vol 1; Mann ‘The Doctrine of Jurisdiction in International Law, Twenty Years Later’ RdC 1984, vol 1; Bernhardt Encyclopaedia of Public International Law edition 1997, vol 3, pp55-59 ‘Jurisdiction of States’ and edition 1995, vol 2, pp337-343 ‘Extra-territorial Effects of Administrative, Judicial and Legislative Acts’; Oppenheim’s International Law (9^th Edn, 1992), col 1, para 137; Dupuy Droit International Public (4^th edn, 1998), p61; and Brownlie Principles of International Law (5^th edn, 1998)pp287, 301 and 312-314).

     60. Accordingly, for example, a state’s competence to exercise jurisdiction over its own nationals abroad is subordinate to that state’s and other states’ territorial competence (Higgins Problems and Process (1994) p73 and Nguyen Quoc Dinh Droit International Public (6^th edn, 1999), p500). In addition, a state may not actually exercise jurisdiction on the territory of another without the latter’s consent, invitation or acquiescence, unless the former is an occupying state in which case it can be found to exercise jurisdiction in that territory, at least in certain respects (Bernhardt Encyclopaedia of Public International Law edition 1997, vol 3, pp vol 3, p59 and edition 1995, vol 2, pp 338-340; Oppenheim’s International Law (9^th edn, 1992), vol 1, para 137; Dupuy Droit International Public(4^th edn, 1998), pp64-65; Brownlie Principles of International Law (5^th edn, 1998), p313; Cassese International Law (2001) p89; and, most recently, the ‘Report on the Preferential Treatment of National Minorities by their Kin-States’ adopted by the Venice Commission at its 48^th Plenary Meeting, Venice, 19-20 October 2001).

     61. The court is of the view, therefore, that art 1 of the convention must be considered to reflect this ordinary and essentially territorial notion of jurisdiction, other bases of jurisdiction being exceptional and requiring special justification in the particular circumstances of each case (see, mutatis mutandis and in general, Select Committee of Experts on Extraterritorial Criminal Jurisdiction, European Committee on Crime Problems, Council of Europe, ‘Extraterritorial Criminal Jurisdiction’, Report published in 1990, pp8-30).
     
     62.The court finds state practice in the application of the convention since its ratification to be indicative of a lack of any apprehension on the part of the contracting states of their extra-territorial responsibility in contexts similar to the present case. Although there have been a number of military missions involving contracting states acting extra-territorially since their ratification of the convention (inter alia, in the Gulf, in Bosnia and Herzegovina and in the FRY), no state has indicated a belief that its extra-territorial actions involved an exercise of jurisdiction within the meaning of art 1 of the convention by making a derogation pursuant to art 15 of the convention."



120. The Court then considered (at paras 64/65) whether the doctrine that the Convention is a "living instrument" ought to affect its conclusion, and held that it did not. The issue was as to the scope and reach of the entire Convention, rather than as to the substance of the rights and freedoms protected by it.
121. Under the heading "Extra-territorial acts recognised as constituting an exercise in jurisdiction", the Court next considered its previous jurisprudence, which it introduced as follows:

     "67. In keeping with the essentially territorial notion of jurisdiction, the court has accepted only in exceptional cases that acts of the contracting states performed, or producing effects, outside their territories can constitute an exercise of jurisdiction by them within the meaning of art 1 of the convention."



122. The Court then turned to a number of cases where the extradition or expulsion by a member state of a person within its territory might engage rights under the Convention (and in particular articles 2 and 3) because of what might befall that person in another country to which he or she would be returned, cases such as Soering v. UK [1989] ECHR 14038/88 (as to which see below at paras 150/153). However, the Court explained that in such cases liability is incurred–

     " by an action of the respondent state concerning a person while he or she is on its territory, clearly within its jurisdiction, and that such cases do not concern the actual exercise of a state’s competence or jurisdiction abroad" (at para 68).

In other words, although such cases might involve extra-territorial effects, they were not proper examples of extra-territorial jurisdiction.

123. The Court next considered a relatively small number of other cases, by name only Drozd v. France (1992) 14 EHRR 745, Loizidou v. Turkey (preliminary objections) (1995) 20 EHRR 99, and Cyprus v. Turkey (2001) 11 BHRC 45, from which it derived the following two conclusions:

     "71. In sum, the case law of the court demonstrates that its recognition of the exercise of extra-territorial jurisdiction by a contracting state is exceptional: it has done so when the respondent state, 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 that government

     "73. Additionally, the court notes that other recognised instances of the extra-territorial exercise of jurisdiction by a state include cases involving the activities of its diplomatic or consular agents abroad and on board craft and vessels registered in, or flying the flag of, that state. In these specific situations, customary international law and treaty provisions have recognised the extra-territorial exercise of jurisdiction by the relevant state."



124. In a section of its judgment concerned with the application of these principles to the case before it ("(d) Were the present applicants therefore capable of coming within the ‘jurisdiction’ of the respondent states?"), the Court first considered but rejected the applicants’ submission that the "effective control" criteria developed in the northern Cyprus cases applied to FRY, or at any rate did so to an extent proportionate to the degree of control exercised (at para 75). In other words, as we understand the matter, the argument had been that a control sufficient to put the rights and freedoms under articles 2 and 3 at risk would suffice to implicate Convention responsibility, even if the control in question did not extend widely enough to encompass other articles of the Convention. The Court reasoned, first, that the positive obligation in article 1 to secure the Convention rights and freedoms could not be "divided and tailored" in accordance with the particular circumstances of the extra-t