Three Claimants alleged that British forces, when serving as a component of the Kosovo Force (“KFOR”), had failed to protect their family members or properly investigate their killings in breach of the Human Rights Act 1998 (“HRA”).
The Court had to determine several preliminary issues relating to the claim, including: whether the acts and omissions alleged by the Claimant were attributable to the UK or the United Nations (which had provided the mandate for KFOR); whether the Claimants were within the jurisdiction of the UK for the purposes of Article 1 of the European Convention on Human Rights (“ECHR”); whether the HRA claims were time-barred; whether an operational protective duty and/or an investigative duty arose under Articles 2 and 3 of the ECHR; whether Articles 8 and 13 were engaged; and whether the claims were barred by reason of the UK’s immunity under international law.
Irwin J concluded all of these issues in favour of the Defendant, and the claim was dismissed.
Two further issues were stayed pending the outcome of other proceedings before the Supreme Court, and so have yet to be decided.
The claims arose from events that took place in June 1999. Ethnic conflict within Kosovo, as well as repressive actions taken by the regime of the Federal Republic of Yugoslavia (“FRY”) against the ethnic Albanian population of Kosovo, culminated in a NATO bombardment against Yugoslavia, commencing on 24 March 1999.
By 8 June 1999, authorities of the FRY, who were overwhelmingly ethnic Serbs, agreed to withdraw from Kosovo. On 9 June 1999, a Military Technical Agreement was signed, providing for the phased withdrawal of FRY forces and their replacement by KFOR. The following day, the UN Security Council passed Resolution 1244, which decided on KFOR’s deployment in Kosovo, “under United Nations auspices”. KFOR’s responsibilities included “temporarily establishing a secure environment” and “ensuring public safety and order”. KFOR consisted of troops from 17 Troop Contributing Nations and Kosovo was divided into five sections, each with a lead nation. The UK was lead nation for the central area of Kosovo, which included the main city, Pristina.
The three Claimants are the widows of ethnic Serbs abducted or murdered in or near Pristina between 16 June and 5 July 1999, in an ethnically polarized climate, at a time when KFOR was stationed in Kosovo. One of the Claimants alleged that the British forces had given assurances of safety to her husband prior to his abduction.
The Court decided that:
First, the acts and omissions complained of by the Claimants were attributable to the UN, rather than the UK. Irwin J based his decision on the fact that in Behrami and Saramati v France and Norway (2007) 45 EHRR SE10, the European Court of Human Rights (“ECtHR”) had unequivocally attributed the actions of KFOR to the UN. The ECtHR in that case concluded that the UN had effective control of KFOR, and that responsibility therefore fell to them pursuant to Article 5 of the International Law Commission’s Draft Articles on State Responsibility (now Article 7).
Irwin J found that Behrami had been clearly approved by the UK Courts (including by the House of Lords in Al-Jedda v Secretary of State for Defence  UKHL 58), that it had not been disapproved or varied by the ECtHR itself, and that there was nothing in the evidence regarding KFOR or the UN command structures which altered the picture from when Behrami was heard. There was therefore no basis on which to depart from that decision. He distinguished KFOR from the deployment of troops in Iraq and Afghanistan, where the actions of British Forces were not carried out under the effective control of the UN.
In reaching his conclusion, Irwin J noted the existence of criticism of the decision in Behrami, to the effect that the ECtHR had placed undue emphasis on the legal source of powers and the question of “ultimate authority control”, rather than the factual question of operational control of the impugned conduct, when determining who had effective control. The latter has been identified as the salient question for the purposes of the attribution of responsibility by the ILC. However, Irwin J:
- Considered that the ILC Articles and Commentary are not treaty or customary international law and thus not binding. They have only been “commended” by the General Assembly “without prejudice to the question of their future adoption”.
- Rejected the Claimants’ assertion that section 2 of the HRA, which provides that a court or tribunal must take into account any judgment of the ECtHR when determining “a question which has arisen in connection with a Convention right”, did not apply. This was because, in his view, the issue concerned the international law governing attributability, and did not arise in connection with an ECHR right. He found that the question of attribution is a question which has arisen in connection with a Convention right as the claim consists of alleged breaches of Articles 2, 3, 8 and 13 of the ECHR. As such, the decision in Behrami, though not technically binding, is persuasive authority of the weightiest kind.
- Considered that despite the criticisms, the better reading of the evidence is that KFOR was under the effective control of the UN.
- Highlighted that the failure complained of here was a much broader failure to create secure and peaceful conditions in Kosovo and/or maintain an effective system of policing, rather than particular actions on the ground (which had been the allegations in other cases). A different outcome would therefore likely have required, not different actions by individual officers or groups of soldiers, but a wholly different approach to the stabilization of Kosovo. As such, the failures would more aptly be attributed to the UN.
Second that the Claimants were not under the UK’s jurisdiction within the meaning of Article 1 of the ECHR. Irwin J considered that the Claimants’ relatives did not fall into either of the two exceptions to the general principle that jurisdiction is normally territorial (the exceptions being ‘effective control of an area’ and the exercise of ‘state agent authority’). As to the ‘effective control’ exception, Irwin J was of the view that a duty to guarantee Convention rights within a territory cannot arise simply from a need to avoid a vacuum in legal space. The degree of control exercised over the territory must meet the test for effective control, and the state in question must have the practical ability to secure the full package of Convention rights. As regards ‘state agent authority’, Irwin J held that jurisdiction on this basis arises from the exercise by the state of physical power and control over the person in question, and that in the present case there was never any physical control by the Defendant of the Claimants’ relatives.
Third, neither an operational protective duty, nor an investigative duty arose under Articles 2 and 3 of the ECHR. In particular, there was no freestanding investigative obligation under the Convention in circumstances where a state did not have effective control over a territory. While an investigative duty would arise where jurisdiction is based on state agent authority, it would be limited to the deaths of the individuals under the physical control of the state. The acceptance of an investigative role by the military police officers was not sufficient to fix the UK with an investigative obligation pursuant to Articles 2 and 3. Furthermore, neither Articles 8 and 13 were engaged.
Fourth, he considered that the events were in any event time-barred; there was no instantaneous act or continuing violation of the ECHR, and accordingly no basis to assert retrospective application of the ECHR for events prior to the UK’s ratification of the treaty in 2000. Moreover, customary international law had not incorporated into English law the Article 2 and 3 obligations.
Finally, he held that the UK did enjoy immunity from action for its direct liability for allegedly tortious acts or omissions under the Joint Declaration between the UN and the Kosovo force Commander, but that this immunity would not avoid liability under the ECHR or any other rule of jus cogens.
The decision in Kontic is regressive and out of keeping with the trend to move beyond the decision of Behrami when determining attribution for acts of multi-national international and peacekeeping operations overseas. Recent case law, the ILC Articles and academic commentary have emphasised that the question of effective control turns on factual operational control over particular acts, rather than ultimate legal authority and control.
While it may be that an application of the correct test on effective control would not have led to a conclusion that the acts and omissions complained of by the Claimants in this particular case were attributable to the UK, it is unfortunate that the Court did not take the opportunity to clarify the legal position and explicitly distance itself from the flawed legal reasoning of the ECtHR in Behrami. Such an approach is necessary in order to ensure accountability for human rights violations committed against local populations in the course of external interventions and peacekeeping operations.
It may be, in keeping with the manner in which the UK Courts have dealt with the case of Bankovic v Belgium (2007) 44 EHRR SE5 (in the context of extra-territorial jurisdiction), that the Court of Appeal or Supreme Court will take a bolder approach if this decision is successfully appealed.