April 16, 2015UK Supreme Court Finalised Article 2 Intervenor
The facts of the case
This case involved a determination of whether the UK Government was required to hold a public inquiry into the killing of 24 unarmed civilians in Selangor by a Scots Guard patrol. At the time Sengalor was a British Protected State in the Federation of Malaya (now a state in Malaysia). Upon later questioning under caution, multiple Scots Guardsmen admitted that the victims had been murdered, and others stated that they had been instructed by the army to give a false explanation that the men killed had been attempting to escape custody when they were shot. Despite contemporaneous calls for a public inquiry, none was undertaken. Judicial review proceedings were launched by the Appellants in 2011, arguing that the state’s failure to undertake a public inquiry was in breach of the state’s obligations under Article 2 of the European Convention on Human Rights (“the Convention”) and its obligations under customary international law.
RSI’s intervention in the case
RSI (as Rights Watch (UK)) and the Pat Finucane Centre intervened on the elements of a public inquiry, or inquest, necessary to satisfy a state’s investigatory obligations under Article 2 of the Convention. RSI’s submissions focused on responding to an intervention by the Attorney General of Northern Ireland, who had intervened to argue that inquests and inquiries had no role to play in discharging the state’s investigative obligation under Article 2. The Attorney General of Northern Ireland argued that inquests and inquiries could not lead directly to the identification and punishment of the perpetrator or an award of compensation. RSI’s intervention highlighted the role to be played by criminal, civil and disciplinary proceedings in establishing the ‘historical truth’ of what had occurred – a key purpose of the procedural duty in Article 2. RSI submitted that to hold otherwise would represent a radical departure from the normal approach of both the High Court and European Court of Human Rights. This intervention was particularly pressing, given the possibility that a judgment in Keyu would affect the state’s obligations to investigate state complicity in killings more broadly, and in particular, in the context of legacy deaths in Northern Ireland.
The judgment in the case
The Supreme Court held unanimously that the killings had occured under the jurisdiction of the UK. The Scots Guardsmen remained His Majesty’s Forces while on active duty in Sengalor; they had not been seconded to any other authority. Those who were killed had been under the direct control of the British Army at the time of their deaths. Moreover, the Court was not persuaded that Malaysian independence in 1957 relieved the UK of its liabilities in relation to the deaths, notwithstanding that Article 167(2) of the Federal Constitution of Malaya purported to relieve the UK of all rights, liabilities and obligations. The Court held that this did not operate to relieve the UK of an obligation to conduct an investigation into pre-1957 misconduct.
The key issue decided on by the Court in relation to the Appellant’s claim under Article 2 was not whether Article 2 required the state to hold an inquiry, but rather, whether the Appellants were entitled to rely on Article 2 at all, given that the Convention and the Human Rights Act 1998 came into existence after the killings. The Court pointed to precedent from the European Court of Human Rights that the duty to investigate killings under Article 2 constituted an “autonomous” duty on the state, which was capable of binding a state—even where a killing predated the Convention—if acts or omissions by the state in relation to that killing (e.g. not investigating when new evidence arose) occurred after the coming into force of the Convention.
However, an additional requirement for the Appellants to meet was to prove that the killings had a “genuine connection” with the “critical date” of the entry into force of the Convention. European Court of Human Rights’ case law had held that where more than ten years had passed between the killing and the entry into force of the Convention, no genuine connection can exist for the purpose of this requirement. The Appellants’ case accordingly failed because the killings occurred more than ten years before individuals in the UK gained the right to individually petition under the Convention, which was considered the critical date of its entry into force. The Court left open the question of whether, had they held that the Appellants did have a viable claim under Article 2, this would have generated a requirement on the part of the state to hold a public inquiry into the killings.
The Court held that the authorities did not establish that, by 1948, when the killings occurred, international law had developed to the extent of requiring a formal public investigation into a suspicious death, even if there were strong reasons for believing it constituted a war crime. The Court held further that even if international law required such an investigation, the requirement could not be implied into the common law on the basis that Parliament had already effectively legislated to provide for investigations where considered necessary, in the form of the Inquiries Act 2005, the Coroners and Justices Act 2009, and the incorporation of Article 2 in the Human Rights Act 1998.
What does this mean for RSI’s work?
RSI is committed to ensuring that military actors remain accountable for violations of international humanitarian law and international human rights law. This case helped to clarify who is eligible for 'Right to Life' protections under Article 2 of the Convention, and how they can be exercised. In intervening, RSI helped to expand access to justice for victims of actions by state officials. The outcome has provided RSI with a greater arsenal to ensure that policies conducted in the national security space remain just and effective.
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