Keyu and Ors v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69
16th April 2015
- UK 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 apublic inquiry into the killing of 24 unarmed civilians in Selangor by a Scots Guard patrol. At the timeSengalorwas a British Protected State in the Federation of Malaya (now a state in Malaysia).Upon later questioningunder 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 states failure to undertake a public inquiry was in breach of the states obligations under Article 2 of the European Convention on Human Rights the Convention)and its obligations under customary international law.
RSIsinterventionin the case
RSI (as Rights Watch (UK) andthe Pat Finucane Centre intervened onthe elements of a public inquiry, or inquest,necessary to satisfy a states investigatory obligations under Article 2 of the Convention. RSIssubmissions 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 states investigative obligation under Article 2. The Attorney General of Northern Ireland arguedthat inquests and inquiriescould not lead directly to the identification and punishment of the perpetrator or an award of compensation.RSIs intervention highlighted the role to be played by criminal, civil and disciplinary proceedings in establishing the u2018historical truth of what had occurred u2013 a keypurpose of the procedural duty in Article 2.RSI submitted that to hold otherwise would represent a radical departure from the normal approach ofboth the High Court and European Court of Human Rights.Thisinterventionwas particularly pressing,given the possibility that a judgment inKeyuwould affect the states obligations to investigate state complicity in killings more broadly,and in particular, inthe context of legacy deaths in Northern Ireland.
The judgment in the case
TheSupremeCourt held unanimously that the killings had occured under the jurisdiction of the UK.The Scots Guardsmen remained His Majestys Forces while on active duty inSengalor; 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 thatMalaysian independence in 1957 relieved the UK of its liabilities in relation to the deaths, notwithstanding that Article 167(2) of theFederal Constitution of Malaya purported to relieve the UK of allrights, liabilities and obligations. The Court held that this did not operate to relieve the UK of an obligation toconduct an investigation intopre-1957 misconduct.
The key issue decided on by the Court in relation to the Appellants 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 onArticle 2 at all, given thatthe 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 killingsunder Article 2 constituted an u201cautonomousduty on the state,which was capable ofbinding a stateu2014even where a killing predated the Conventionu2014if 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 toprove that the killings had a u201cgenuine connection with the u201ccritical dateof the entry into force of the Convention.European Court of Human Rights case law had held thatwhere more than ten years hadpassed between the killing and the entry into force of the Convention, no genuine connection can exist for the purpose of this requirement. The Appellantscaseaccordinglyfailed because the killings occurred more than ten years before individualsinthe UK gained the right to individually petition under the Convention, which was considered thecriticaldate ofitsentry into force.The Courtleft 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 killingsoccurred, international law had developed to the extent of requiring a formal public investigation into a suspicious death, even if there were strong reasons for believingitconstituted 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 lawon the basis that Parliament had already effectively legislated to provide for investigations where considered necessary, in the form of theInquiries Act 2005, theCoroners and Justices Act 2009,and the incorporation of Article 2 in the Human Rights Act 1998.
What does this mean for RSIs work?
RSIis committed to ensuring that military actors remainaccountablefor 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,RSIhelped to expandaccess to justice forvictims 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.