UK troops in Iraq bound by Human Rights Act

The UK Court of Appeal has ruled that Iraqi detainees fall under the protection of the Human Rights Act - including the right to freedom from torture or other degreading treatment - from the moment they are arrested by British, extending a previous ruling which had held this to be the case only when they are actually in a British-controlled prison. One Judge even proposed that there were good grounds to suggest that the duty under the Act to protect certain fundamental rights, particularly the right to life, should be understood as extending to streets patrolled by British troops. The case in question concerned the death of Baha Mousa, an Iraqi hotel receptionist who died after being arrested by UK forces. 5 other cases of death allegedly caused bythem were held not to fall under the Human Rights Act.

One passage worthy of note, from Lord Justice Brooke, on the right to life in areas under the control of British troops: "It could be difficult for a European government to decide to pursue policies that treated human life as more readily expendable just because those whom their forces kill are not themselves European".

This decision, then, sorts out some potentially thorny jurisdictional issues in terms of the UK occupation of Southern Iraq. It doesn't, I don't think, impose any new obligations on the soldiers involved - the right to life and freedom from torture are already protected under international law - but by opening up a clear path for redress of such actions through the domestic, rather than military, courts, it will hopefully ensure that the troops and their leaders will be more inclined to actually pay attention to them. Nothing concentrates the mind like the prospect of genuine accountablity through enforceability.

It may be worth just noting, however, that, if one of the arguments made quite powerfully in the Pinochet case is accepted, namely that customary international law is properly regarded as forming part of the common law of England, then there would have been valid jurisdictional avenues open in any event: few would today suggest that the prohibition on torture, for example, did not form part of customary international law - and certainly not, it would seem, the House of Lords. Still, in extending the scope of the Human Rights Act in this manner, the Appeal Court has ensured that such potentially controversial solutions remain academic.