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“Gentlemen at home, hoodlums elsewhere.”

Last week, the European Court of Human Rights (“ECHR”) issued an excellent judgment on the issue of extraterritorial application of human rights instruments in the case of Al-Skeini and Others v. The United Kingdom. (h/t Paul Champ)

As readers may recall, in 2007, the BCCLA and Amnesty International (Canada) launched a Federal Court application for an order to halt the transfer of prisoners captured by Canadian Forces during military operations in Afghanistan to Afghan authorities. We sought this order because we were concerned that CF-transferred detainees faced risk of torture in Afghan prisons.

In response to our application, which argued that the fundamental human rights protections guaranteed by the Charter of Rights and Freedoms should extend to the conduct of Canadian soldiers acting in Afghanistan, the Government of Canada claimed that the Charter had no such extraterritorial reach. The Government of Canada made this claim notwithstanding the fact that our concern focused on individuals who had been captured by Canadian Forces and held in Canadian military custody at the time of their transfer to the Afghans. The motions judge at the Federal Court agreed with the Government, and dismissed our application. The Federal Court of Appeal affirmed the lower court’s decision. The Supreme Court of Canada denied our application for leave to appeal.

Al-Skeini deals with the question of whether the United Kingdom breached its obligations under the European Convention for the Protection of Human Rights and Fundamental Freedoms (the “European Convention”) for its alleged failure to effectively investigate the deaths of six Iraqi civilians who were said to have been killed by British soldiers operating in Iraq. In its submissions before the ECHR, the UK admitted that it did have jurisdiction over a killing that occurred in a British military prison, but that it did not have jurisdiction over the other deaths, which took place in southern Iraq. Accordingly, while the European Convention could be found to apply to the death that took place in the British military facility, it could not be said to extend to conduct occurring in other places where the UK was engaged in military operations because it did not have “effective control” over those areas.

The ECHR disagreed, and found that extraterritorial jurisdiction could attach in various ways. Of particular relevance to the Afghan detainee issue, the ECHR stated that in its previous cases dealing with the extraterritorial application of the European Convention, jurisdiction did not arise “solely from the control exercised by the Contracting State over the buildings, aircraft or ship in which the individuals were held. What is decisive in such cases is the exercise of physical power and control over the person in question.” The ECHR also additionally stated that in determining whether the UK had effective control over certain areas in Iraq,

it is not necessary to determine whether the Contracting State exercises detailed control over the policies and actions of the subordinate local administration. The fact that the local administration survives as a result of the Contracting State’s military and other support entails that State’s responsibility for its policies and actions. The controlling State has the responsibility under Article 1 [of the European Convention] to secure, within the area under its control, the entire range of substantive rights set out in the [European Convention]. It will be liable for any violations of those rights.

Thus, the ECHR unanimously dismissed the United Kingdom’s preliminary objections based on extraterritorial jurisdiction. So far, so good: much of what is said about the UK’s effective control over persons and places can be readily applied in the context of Canada’s conduct with respect to Afghan detainees. But where this decision really gets terrific is in the concurring opinion of Judge Giovanni Bonello, where he returns to first principles and considers what it means to commit to “universal” recognition and observance of fundamental human rights.

For example, Judge Bonello addresses what he terms as the UK’s “indivisibility of human rights” argument, which he describes as follows: “as human rights are indivisible, once a State is considered to have extra-territorial ‘jurisdiction’, then that State is held to be bound to enforce all the human rights enshrined in the Convention. Conversely, if that State is not in a position to enforce the whole range of Convention human rights, it does not have jurisdiction.” He flatly rejects this argument, observing:

Extraterritorially, a Contracting State is obliged to ensure the observance of all those human rights which it is in a position to ensure. … I believe that it ill suits the respondent Government to argue, as they have, that their inability to secure respect for all fundamental rights in Basrah, gave them the right not to respect any at all.

Judge Bonello’s comment reminds us of something we have long argued in the context of Afghan detainee transfers. Those wishing to hand-wave away Canada’s responsibility over detainee transfers often point to Canada’s inability to control what happens in Afghan prisons, saying that it’s the Afghans who are engaging in torture, not Canadians. But that misses the point — Canada can most certainly control whether its forces hand over detainees to other countries. To borrow Judge Bonello’s words: Canada is in a position to ensure that it is not placing individuals at risk of torture, and by virtue of being in such a position, it has obligations to ensure that individuals under its custody and care are not delivered to harm.

Judge Bonello quite precisely observes:

… For me the primary questions to be answered boil down to these: when a State ratifies the Convention, does it undertake to promote human rights wherever it can, or does it undertake to promote human rights inside its own confines and to breach them everywhere else? Did the Contracting Party ratify the Convention with the deliberate intent of discriminating between the sanctity of human rights within its own territory and their paltry insignificance everywhere else?

I am unwilling to endorse à la carte respect for human rights. I think poorly of an esteem for human rights that turns casual and approximate depending on geographical coordinates. Any State that worships fundamental rights on its own territory but then feels free to make a mockery of them anywhere else does not, as far as I am concerned, belong to that comity of nations for which the supremacy of human rights is both mission and clarion call. In substance the United Kingdom is arguing, sadly, I believe, that it ratified the Convention with the deliberate intent of regulating the conduct of its armed forces according to latitude: gentlemen at home, hoodlums elsewhere.

Well said, indeed.