Cases concerning the international military operations in Iraq during the Second Gulf War
II. RELEVANT INTERNATIONAL LAW MATERIALS A. International humanitarian law on belligerent occupation 89. The duties of an Occupying Power can be found primarily in Articles 42 to 56 of the Regulations concerning the Laws and Customs of War on Land (The Hague, 18 October 1907 ) ( “the Hague Regulations”) and Articles 27 to 34 and 47 to 78 of the Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War ( of 12 August 1949 ) ( “ the Fourth Geneva Convention”), as well as in certain provisions of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), of 8 June 1977 ( “Additional Protocol I ”). Articles 42 and 43 of the Hague Regulations provide as follows: Article 42 “ Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised. ” Article 43 “ The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.” Article 64 of the Fourth Geneva Convention provides that penal laws may be repealed or suspended by the Occupying Power only where they constitute a threat to the security or an obstacle to the application of the Fourth Geneva Convention. It also details the situations in which the Occupying Power is entitled to introduce legislative measures. These are specifically : “ ... provisions which are essential to enable the Occupying Power to fulfil its obligations under the present Convention, to maintain the orderly government of the territory, and to ensure the security of the Occupying Power, of the members and property of the occupying forces or administration, and likewise of the establishments and lines of communication used by them.” Agreements concluded between the Occupying Power and the local authorities cannot deprive the population of the occupied territory of the protection afforded by international humanitarian law and protected persons themselves can in no circumstances renounce their rights (Fourth Geneva Convention, Articles 8 and 47 ). Occupation does not create any change in the status of the territory (see Article 4 of Additional Protocol I), which can only be effected by a peace treaty or by annexation followed by recognition. The former sovereign remains sovereign and there is no change in the nationality of the inhabitants. B. Case-law of the International Court of Justice concerning the interrelationship between international humanitarian law and international human rights law and the extraterritorial obligations of States under international human rights law 90. In the proceedings concerning the International Court of Justice ’ s Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (9 July 2004), Israel denied that the human rights instruments to which it was a party, including the International Covenant on Civil and Political Rights, were applicable to the Occupied Palestinian Territory and asserted ( at paragraph 102) that: “humanitarian law is the protection granted in a conflict situation such as the one in the West Bank and Gaza Strip, whereas human rights treaties were intended for the protection of citizens from their own government in times of peace.” In order to determine whether the instruments were applicable in the Occupied Palestinian Territory, the International Court of Justice first addressed the issue of the relationship between international humanitarian law and international human rights law, holding as follows: “106. ... the Court considers that the protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation of the kind to be found in Article 4 of the International Covenant on Civil and Political Rights. As regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law. In order to answer the question put to it, the Court will have to take into consideration both these branches of international law, namely human rights law and, as lex specialis, international humanitarian law.” The International Court of Justice next considered the question whether the International Covenant on Civil and Political Rights was capable of applying outside the State ’ s national territory and whether it applied in the Occupied Palestinian Territory. It held as follows (references and citations omitted) : “ 108. The scope of application of the International Covenant on Civil and Political Rights is defined by Article 2, paragraph 1, thereof, which provides: ‘ Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. ’ This provision can be interpreted as covering only individuals who are both present within a State ’ s territory and subject to that State ’ s jurisdiction. It can also be construed as covering both individuals present within a State ’ s territory and those outside that territory but subject to that State ’ s jurisdiction. The Court will thus seek to determine the meaning to be given to this text. 109. The Court would observe that, while the jurisdiction of States is primarily territorial, it may sometimes be exercised outside the national territory. Considering the object and purpose of the International Covenant on Civil and Political Rights, it would seem natural that, even when such is the case, States Parties to the Covenant should be bound to comply with its provisions. The constant practice of the Human Rights Committee is consistent with this. Thus, the Committee has found the Covenant applicable where the State exercises its jurisdiction on foreign territory. It has ruled on the legality of acts by Uruguay in cases of arrests carried out by Uruguayan agents in Brazil or Argentina ... It decided to the same effect in the case of the confiscation of a passport by a Uruguayan consulate in Germany ... 110. The Court takes note in this connection of the position taken by Israel, in relation to the applicability of the Covenant, in its communications to the Human Rights Committee, and of the view of the Committee. In 1998, Israel stated that, when preparing its report to the Committee, it had had to face the question ‘ whether individuals resident in the occupied territories were indeed subject to Israel ’ s jurisdiction ’ for purposes of the application of the Covenant ... Israel took the position that ‘ the Covenant and similar instruments did not apply directly to the current situation in the occupied territories ’ ... The Committee, in its concluding observations after examination of the report, expressed concern at Israel ’ s attitude and pointed ‘ to the long-standing presence of Israel in [the occupied] territories, Israel ’ s ambiguous attitude towards their future status, as well as the exercise of effective jurisdiction by Israeli security forces therein ’ ... In 2003 in face of Israel ’ s consistent position, to the effect that ‘ the Covenant does not apply beyond its own territory, notably in the West Bank and Gaza ... ’, the Committee reached the following conclusion: ‘ in the current circumstances, the provisions of the Covenant apply to the benefit of the population of the occupied territories, for all conduct by the State Party ’ s authorities or agents in those territories that affect the enjoyment of rights enshrined in the Covenant and fall within the ambit of State responsibility of Israel under the principles of public international law ’ ... 111. In conclusion, the Court considers that the International Covenant on Civil and Political Rights is applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory.” In addition, the International Court of Justice appeared to assume that, even in respect of extraterritorial acts, it would in principle be possible for a State to derogate from its obligations under the International Covenant on Civil and Political Rights, Article 4 § 1 of which provides: “In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.” Thus, in paragraph 136 of its Advisory Opinion, having considered whether the acts in question were justified under international humanitarian law on grounds of military exigency, the International Court of Justice held: “136. The Court would further observe that some human rights conventions, and in particular the International Covenant on Civil and Political Rights, contain provisions which States Parties may invoke in order to derogate, under various conditions, from certain of their conventional obligations. In this respect, the Court would however recall that the communication notified by Israel to the Secretary-General of the United Nations under Article 4 of the International Covenant on Civil and Political Rights concerns only Article 9 of the Covenant, relating to the right to freedom and security of person (see paragraph 127 above); Israel is accordingly bound to respect all the other provisions of that instrument.” 91. In its judgment Armed Activities on the Territory of the Congo (Democratic Republic of the Congo (DRC) v. Uganda ) of 19 December 2005, the International Court of Justice considered whether, during the relevant period, Uganda was an “Occupying Power” of any part of the territory of the Democratic Republic of the Congo, within the meaning of customary international law, as reflected in Article 42 of the Hague Regulations (§§ 172-73 of the judgment ). The International Court of Justice found that Ugandan forces were stationed in the province of Ituri and exercised authority there, in the sense that they had substituted their own authority for that of the Congolese government (§§ 174-76). The International Court of Justice continued: “178. The Court thus concludes that Uganda was the Occupying Power in Ituri at the relevant time. As such it was under an obligation, according to Article 43 of the Hague Regulations of 1907, to take all the measures in its power to restore, and ensure, as far as possible, public order and safety in the occupied area, while respecting, unless absolutely prevented, the laws in force in the DRC. This obligation comprised the duty to secure respect for the applicable rules of international human rights law and international humanitarian law, to protect the inhabitants of the occupied territory against acts of violence, and not to tolerate such violence by any third party. 179. The Court, having concluded that Uganda was an Occupying Power in Ituri at the relevant time, finds that Uganda ’ s responsibility is engaged both for any acts of its military that violated its international obligations and for any lack of vigilance in preventing violations of human rights and international humanitarian law by other actors present in the occupied territory, including rebel groups acting on their own account. 180. The Court notes that Uganda at all times has responsibility for all actions and omissions of its own military forces in the territory of the DRC in breach of its obligations under the rules of international human rights law and international humanitarian law which are relevant and applicable in the specific situation. ” The International Court of Justice established the facts relating to the serious breaches of human rights allegedly attributable to Uganda, in the occupied Ituri region and elsewhere (§§ 205-12). In order to determine whether the conduct in question constituted a breach of Uganda ’ s international obligations, the International Court of Justice recalled its finding in the above -cited Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion that both international humanitarian law and international human rights law would have to be taken into consideration and that international human rights instruments were capable of having an extraterritorial application, “particularly in occupied territories” (§ 216). The International Court of Justice next determined which were “the applicable rules of international human rights law and international humanitarian law”, by listing the international humanitarian and international human rights treaties to which both Uganda and the Democratic Republic of the Congo were party, together with the relevant principles of customary international law (§§ 217 ‑ 19). C. The duty to investigate alleged violations of the right to life in situations of armed conflict and occupation under international humanitarian law and international human rights law 92. Article 121 of the Geneva Convention (III) relative to the Treatment of Prisoners of War (of 12 August 1949) (“the Third Geneva Convention”) provides that an official enquiry must be held by the Detaining Power following the suspected homicide of a prisoner of war. Article 131 of the Fourth Geneva Convention provides: “Every death or serious injury of an internee, caused or suspected to have been caused by a sentry, another internee or any other person, as well as any death the cause of which is unknown, shall be immediately followed by an official enquiry by the Detaining Power. A communication on this subject shall be sent immediately to the Protecting Power. The evidence of any witnesses shall be taken, and a report including such evidence shall be prepared and forwarded to the said Protecting Power. If the enquiry indicates the guilt of one or more persons, the Detaining Power shall take all necessary steps to ensure the prosecution of the person or persons responsible.” The Geneva Conventions also place an obligation on each High Contracting Party to investigate and prosecute alleged grave breaches of the Conventions, including the wilful killing of protected persons (Articles 49 and 50 of the Geneva Convention (I) for the Amelioration of the Condition of the Sick and Wounded in the Field (of 12 August 1949) (“the First Geneva Convention”); Articles 50 and 51 of the Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (of 12 August 1949) (“the Second Geneva Convention”); Articles 129 and 130 of the Third Geneva Convention; and Articles 146 and 147 of the Fourth Geneva Convention). 93. In his report of 8 March 2006 on extrajudicial, summary or arbitrary executions ( E/CN.4/2006/53 ), the United Nations Special Rapporteur, Philip Alston, observed in connection with the right to life under Article 6 of the International Covenant on Civil and Political Rights in situations of armed conflict and occupation (footnotes omitted): “ 36. Armed conflict and occupation do not discharge the State ’ s duty to investigate and prosecute human rights abuses. The right to life is non-derogable regardless of circumstance. This prohibits any practice of not investigating alleged violations during armed conflict or occupation. As the Human Rights Committee has held, ‘ It is inherent in the protection of rights explicitly recognised as non-derogable ... that they must be secured by procedural guarantees ... The provisions of the [ International Covenant on Civil and Political Rights ] relating to procedural safeguards may never be made subject to measures that would circumvent the protection of non-derogable rights ’. It is undeniable that during armed conflicts circumstances will sometimes impede investigation. Such circumstances will never discharge the obligation to investigate – this would eviscerate the non-derogable character of the right to life – but they may affect the modalities or particulars of the investigation. In addition to being fully responsible for the conduct of their agents, in relation to the acts of private actors States are also held to a standard of due diligence in armed conflicts as well as peace. On a case-by-case basis a State might utilise less effective measures of investigation in response to concrete constraints. For example, when hostile forces control the scene of a shooting, conducting an autopsy may prove impossible. Regardless of the circumstances, however, investigations must always be conducted as effectively as possible and never be reduced to mere formality. ... ” 94. In its judgment in the Case of the “ Mapiripán Massacre ” v. Colombia of 15 September 2005, the Inter-American Court of Human Rights held, inter alia, in connection with the respondent State ’ s failure fully to investigate the massacre of civilians carried out by a paramilitary group with the alleged assistance of the State authorities: “ 238. In this regard, the Court recognises the difficult circumstances of Colombia, where its population and its institutions strive to attain peace. However, the country ’ s conditions, no matter how difficult, do not release a State Party to the American Convention of its obligations set forth in this treaty, which specifically continue in cases such as the instant one. The Court has argued that when the State conducts or tolerates actions leading to extra-legal executions, not investigating them adequately and not punishing those responsible, as appropriate, it breaches the duties to respect rights set forth in the Convention and to ensure their free and full exercise, both by the alleged victim and by his or her next of kin, it does not allow society to learn what happened, and it reproduces the conditions of impunity for this type of facts to happen once again.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 95. The applicants contended that their relatives were within the jurisdiction of the United Kingdom under Article 1 of the Convention at the moment of death and that, except in relation to the sixth applicant, the United Kingdom had not complied with its investigative duty under Article 2. 96. The Government accepted that the sixth applicant ’ s son had been within United Kingdom jurisdiction but denied that the United Kingdom had jurisdiction over any of the other deceased. They contended that, since the second and third applicants ’ relatives had been killed after the adoption of United Nations Security Council Resolution 1511 (see paragraph 16 above), the acts which led to their deaths were attributable to the United Nations and not to the United Kingdom. In addition, the Government contended that the fifth applicant ’ s case should be declared inadmissible for non-exhaustion of domestic remedies and that the fifth and sixth applicants no longer had victim status. A. Admissibility 1. Attribution 97. The Government pointed out that the operations that led to the deaths of the second and third applicants ’ relatives occurred after 16 October 2003, when the United Nations Security Council adopted Resolution 1511. Paragraph 13 of that Resolution authorised a Multinational Force to take “all necessary measures to contribute to the maintenance of security and stability in Iraq” (see paragraph 16 above). It followed that, in conducting the relevant operations in which the second and third applicants ’ relatives were shot, United Kingdom troops were not exercising the sovereign authority of the United Kingdom but the international authority of the Multinational Force acting pursuant to the binding decision of the United Nations Security Council. 98. The applicants stressed that the Government had not raised this argument at any stage during the domestic proceedings. Moreover, an identical argument had been advanced by the Government and rejected by the House of Lords in R. (on the application of Al-Jedda) (FC) (Appellant) v. Secretary of State for Defence (Respondent) [2007] UKHL 58. 99. The Court recalls that it is intended to be subsidiary to the national systems safeguarding human rights. It is, therefore, appropriate that the national courts should initially have the opportunity to determine questions of the compatibility of domestic law with the Convention and that, if an application is nonetheless subsequently brought before the Court, it should have the benefit of the views of the national courts, as being in direct and continuous contact with the forces of their countries. It is thus of importance that the arguments put by the Government before the national courts should be on the same lines as those put before this Court. In particular, it is not open to a Government to put to the Court arguments which are inconsistent with the position they adopted before the national courts ( see A. and Others v. the United Kingdom [GC], no. 3455/05, § 154, ECHR 2009 ). 100. The Government did not contend before the national courts that any of the killings of the applicants ’ relatives were not attributable to United Kingdom armed forces. The Court considers, therefore, that the Government are estopped from raising this objection in the present proceedings. 2. Jurisdiction 101. The Government further contended that the acts in question took place in southern Iraq and outside the United Kingdom ’ s jurisdiction under Article 1 of the Convention. The sole exception was the killing of the sixth applicant ’ s son, which occurred in a British military prison over which the United Kingdom did have jurisdiction. 102. The Court considers that the question whether the applicants ’ cases fall within the jurisdiction of the respondent State is closely linked to the merits of their complaints. It therefore joins this preliminary question to the merits. 3. Exhaustion of domestic remedies 103. The Government contended that the fifth applicant ’ s case should be declared inadmissible for non-exhaustion of domestic remedies. They pointed out that although he brought judicial review proceedings alleging breaches of his substantive and procedural rights under Articles 2 and 3, his claim was stayed pending resolution of the six test cases (see paragraph 7 3 above). After those claims had been resolved, it would have been open to the applicant to apply to the Divisional Court to lift the stay, but he did not do so. His case was not a shooting incident, and the domestic courts had not had the opportunity to consider the facts relevant to his claims that his son was within the jurisdiction of the United Kingdom and that there had been a breach of the procedural obligation. 104. The applicants invited the Court to reject this submission. A judicial - review claim had been lodged by the fifth applicant on 5 May 2004. It was, by agreement, stayed pending the outcome of the six test cases (see paragraph 73 above). The fifth applicant would have had no reasonable prospects of success if, after the House of Lords gave judgment in Al-Skeini and Others (Respondents) v. Secretary of State for Defence (Appellant) Al-Skeini and Others (Appellants) v. Secretary of State for Defence (Respondent) (Consolidated Appeals) [2007] UKHL 26, he had sought to revive and pursue his stayed judicial - review claim. The lower courts would have been bound by the House of Lords ’ interpretation of Article 1 and would have applied it so as to find that the applicant ’ s deceased son had not been within United Kingdom jurisdiction. 105. The Court observes that, according to the fifth applicant, his son died when, having been arrested by United Kingdom soldiers on suspicion of looting, he was driven in an army vehicle to the river and forced to jump in. His case is, therefore, distinguishable on its alleged facts from those of the first, second and fourth applicants, whose relatives were shot by British soldiers; the third applicant, whose wife was shot during exchange of fire between British troops and unknown gunmen; and the sixth applicant, whose son was killed while detained in a British military detention facility. It is true that the House of Lords in the Al-Skeini proceedings did not have before it a case similar to the fifth applicant ’ s, where an Iraqi civilian met his death having been taken into British military custody, but without being detained in a military prison. Nonetheless, the Court considers that the applicants are correct in their assessment that the fifth applicant would have had no prospects of success had he subsequently sought to pursue his judicial - review application in the domestic courts. Lord Brown, with whom the majority of the House of Lords agreed, made it clear that he preferred the approach to jurisdiction in the sixth applicant ’ s case taken by the Divisional Court, namely that jurisdiction arose in respect of Baha Mousa only because he died while detained in a British military prison (see paragraph 88 above). In these circumstances, the Court does not consider that the fifth applicant can be criticised for failing to attempt to revive his claim before the Divisional Court. It follows that the Government ’ s preliminary objection based on non-exhaustion of domestic remedies must be rejected. 4. Victim status 106. The Government submitted that the fifth and sixth applicants could no longer claim to be victims of any violations of their rights under Article 2, since the death of each of their sons had been fully investigated by the national authorities and compensation paid to the applicants. 107. The Court considers that this question is also closely linked and should be joined to the merits of the complaint under Article 2. 5. Conclusion on admissibility 108. The Court considers that the application raises serious questions of fact and law which are of such complexity that their determination should depend on an examination on the merits. It cannot, therefore, be considered manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and no other ground for declaring it inadmissible has been established. It must therefore be declared admissible. B. Merits 1. Jurisdiction ( a ) The parties ’ submissions ( i ) The Government 109. The Government submitted that the leading authority on the concept of “jurisdiction” within the meaning of Article 1 of the Convention was the Court ’ s decision in Banković and Others (cited above). Banković and Others established that the fact that an individual had been affected by an act committed by a Contracting State or its agents was not sufficient to establish that he was within that State ’ s jurisdiction. Jurisdiction under Article 1 was “primarily” or “essentially” territorial and any extension of jurisdiction outside the territory of the Contracting State was “exceptional” and required “special justification in the particular circumstances of each case”. The Court had held in Banković and Others that the Convention rights could not be “divided and tailored”. Within its jurisdiction, a Contracting State was under an obligation to secure all the Convention rights and freedoms. The Court had also held in Banković and Others that the Convention was “ an instrument of European public order” and “ a multilateral treaty operating, subject to Article 56 of the Convention, in an essentially regional context and notably in the legal space ( espace juridique ) of the Contracting States”. The essentially territorial basis of jurisdiction reflected principles of international law and took account of the practical and legal difficulties faced by a State operating on another State ’ s territory, particularly in regions which did not share the values of the Council of Europe member States. 110. In the Government ’ s submission, the Grand Chamber in Banković and Others, having conducted a comprehensive review of the case-law, identified a limited number of exceptions to the territorial principle. The principal exception derived from the case-law on northern Cyprus and applied when a State, as a consequence of military action, exercised effective control of an area outside its national territory. Where the Court had found this exceptional basis of jurisdiction to apply, it had stressed that the State exercising effective control was thereby responsible for securing the entire range of substantive Convention rights in the territory in question (see Loizidou v. Turkey (preliminary objections), 23 March 1995, § 62, Series A no. 310; Cyprus v. Turkey [GC ], no. 25781/94, §§ 75-80, ECHR 2001 ‑ IV; Banković and Others, cited above, §§ 70-71; and Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, §§ 314-16, ECHR 2004 ‑ VII). Moreover, despite dicta to the contrary in the subsequent Chamber judgment in Issa and Others (cited above), the Grand Chamber in Banković and Others made it clear that the “effective control of an area” basis of jurisdiction could apply only within the legal space of the Convention. In addition to the control exercised by Turkey in northern Cyprus, the Court had applied this exception in relation to only one other area, Transdniestria, which also fell within the territory of another Contracting State. Any other approach would risk requiring the State to impose culturally alien standards, in breach of the principle of sovereign self ‑ determination. 111. According to the Government, the Court ’ s case-law on Article 56 of the Convention further indicated that a State would not be held to exercise Article 1 jurisdiction over an overseas territory merely by virtue of exercising effective control there ( see Quark Fishing Ltd v. the United Kingdom (dec.), no. 15305/06, ECHR 2006 ‑ XIV ). If the “ effective control of territory ” exception were held to apply outside the territories of the Contracting States, this would lead to the conclusion that a State was free to choose whether or not to extend the Convention and its Protocols to a non ‑ metropolitan territory outside the Convention “ espace juridique ” over which it might in fact have exercised control for decades, but was not free to choose whether to extend the Convention to territories outside that space over which it exercised effective control as a result of military action only temporarily, for example only until peace and security could be restored. 112. The Government submitted that, since Iraq fell outside the legal space of the Convention, the “effective control of an area” exceptional basis of jurisdiction could not apply. In any event, the United Kingdom did not have “effective control” over any part of Iraq during the relevant time. This was the conclusion of the domestic courts, which had all the available evidence before them. The number of Coalition Forces, including United Kingdom forces, was small: in south -east Iraq, an area of 96,000 square kilometres with a population of 4.6 million, there were 14,500 Coalition troops, including 8,150 United Kingdom troops. United Kingdom troops operated in the Al - Basra and Maysan provinces, which had a population of 2.76 million for 8,119 troops. United Kingdom forces in Iraq were faced with real practical difficulties in restoring conditions of security and stability so as to enable the Iraqi people freely to determine their political future. The principal reason for this was that at the start of the occupation there was no competent system of local law enforcement in place, while at the same time there was widespread violent crime, terrorism and tribal fighting involving the use of light and heavy weapons. 113. Governing authority in Iraq during the occupation was exercised by the Coalition Provisional Authority (CPA), which was governed by United States Ambassador Paul Bremer and which was not a subordinate authority of the United Kingdom. In addition, from July 2003 there was a central Iraqi Governing Council and a number of local Iraqi councils. The status of the CPA and Iraqi administration was wholly different from that of the “Turkish Republic of Northern Cyprus” (the “ TRNC ” ) in Cyprus or the “Moldovan Republic of Transdniestria” (the “ MRT ” ) in Transdniestria, which were both characterised by the Court as “self ‑ proclaimed authorities which are not recognised by the international community”. The authority of the CPA and the Iraqi administration was recognised by the international community, through the United Nations Security Council. Moreover, the purpose of the United Kingdom ’ s joint occupation of Iraq was to transfer authority as soon as possible to a representative Iraqi administration. In keeping with this purpose, the occupation lasted for only just over a year. 114. In the Government ’ s submission, the fact that between May 2003 and June 2004 the United Kingdom was an Occupying Power within the meaning of the Hague Regulations (see paragraph 89 above) did not, in itself, give rise to an obligation to secure the Convention rights and freedoms to the inhabitants of south -east Iraq. As an Occupying Power the United Kingdom did not have sovereignty over Iraq and was not entitled to treat the area under its occupation as its own territory or as a colony subject to its complete power and authority. The Hague Regulations did not confer on the United Kingdom the power to amend the laws and Constitution of Iraq so as to conform to the United Kingdom ’ s own domestic law or regional multilateral international obligations such as the Convention. On the contrary, the Hague Regulations set limits on the United Kingdom ’ s powers, notably the obligation to respect the laws in force in Iraq “ unless absolutely prevented”. Moreover, the resolutions passed by the United Nations Security Council recognised that governing authority in Iraq during the occupation was to be exercised by the CPA and that the aim of the occupation was to transfer authority as soon as possible to a representative Iraqi administration. It followed that the international legal framework, far from establishing that the United Kingdom was obliged to secure Convention rights in Iraq, established instead that the United Kingdom would have been acting contrary to its international obligations if it had sought to modify the Constitution of Iraq so as to comply with the Convention. In any event, the Court ’ s case-law demonstrated that it approached the question whether a State exercised jurisdiction extraterritorially as one of fact, informed by the particular nature and history of the Convention. The obligations imposed by the Fourth Geneva Convention and the Hague Regulations were carefully tailored to the circumstances of occupation and could not in themselves have consequences for the very different issue of jurisdiction under the Convention. 115. The Government accepted that it was possible to identify from the case-law a number of other exceptional categories where jurisdiction could be exercised by a State outside its territory and outside the Convention region. In Banković and Others (cited above) the Grand Chamber referred to other cases involving the activities of diplomatic or consular agents abroad and on board craft and vessels registered in or flying the flag of the State. In Banković and Others, the Court also cited as an example Drozd and Janousek v. France and Spain ( 26 June 1992, Series A no. 240 ), which demonstrated that jurisdiction could be exercised by a State if it brought an individual before its own court, sitting outside its territory, to apply its own criminal law. In its judgment in Öcalan (cited above, § 91), the Grand Chamber held that Turkey had exercised jurisdiction over the applicant when he was “arrested by members of the Turkish security forces inside an aircraft registered in Turkey in the international zone of Nairobi Airport” and “physically forced to return to Turkey by Turkish officials and was under their authority and control following his arrest and return to Turkey”. In the Government ’ s submission, none of these exceptions applied in the first, second, third and fourth applicants ’ cases. 116. The Government contended that the applicants ’ submission that, in shooting their relatives, the United Kingdom soldiers exercised “authority and control” over the deceased, so as to bring them within the United Kingdom ’ s jurisdiction, was directly contrary to the decision in Banković and Others (cited above). In Banković and Others, the Grand Chamber considered the applicability of the Convention to extraterritorial military operations generally, having regard, inter alia, to State practice and Article 15 of the Convention, and concluded that the Convention did not apply to the military action of the respondent States which resulted in those applicants ’ relatives ’ deaths. Equally, in the present case, the military action of United Kingdom soldiers in shooting the applicants ’ relatives while carrying out military security operations in Iraq did not constitute an exercise of jurisdiction over them. No distinction could be drawn in this respect between a death resulting from a bombing and one resulting from a shooting in the course of a ground operation. 117. The Government rejected the applicants ’ argument that a jurisdictional link existed because the United Kingdom soldiers were exercising “legal authority” over the deceased, derived from the obligation under the Hague Regulations to ensure “public order and safety” in the occupied territory. The meaning of Article 1 of the Convention was autonomous and could not be determined by reference to wholly distinct provisions of international humanitarian law. Moreover, the duty relied on was owed to every Iraqi citizen within the occupied territory and, if the applicants were correct, the United Kingdom would have been required to secure Convention rights to them all. Nor could it be said that United Kingdom troops at the relevant time were exercising “public powers ” pursuant to treaty arrangements (see Banković and Others, cited above, § 73). In fact, United Kingdom troops were exercising military power in an effort to create a situation in which governmental functions could be exercised and the rule of law could properly operate. No sensible distinction could be drawn between the different types of military operation undertaken by them. There was no basis for concluding that the applicability of the Convention should turn upon the particular activity that a soldier was engaged in at the time of the alleged violation, whether street patrol, ground offensive or aerial bombardment. 118. In conclusion, the Government submitted that the domestic courts were correct that the United Kingdom did not exercise any Article 1 jurisdiction over the relatives of the first to fourth applicants at the time of their deaths. The cases could not be distinguished from that of the deceased in Banković and Others (cited above). Nor were the facts of the fifth applicant ’ s case sufficient to distinguish it in this respect from those of the first to fourth applicants. The fifth applicant ’ s son was not arrested in circumstances similar to those which founded jurisdiction in Öcalan (cited above). As a suspected looter, in the situation of extreme public disorder in the immediate aftermath of the cessation of major combat activities, he was physically required by United Kingdom soldiers to move from the place of looting to another location. The acts of the United Kingdom soldiers involved an assertion of military power over the fifth applicant ’ s son, but no more. The Government accepted that the sixth applicant ’ s son was within United Kingdom jurisdiction when he died, but only on the basis found by the Divisional Court and subsequently by Lord Brown, with whom Lords Rodger and Carswell and Baroness Hale agreed, namely that jurisdiction was established when the deceased was detained in a United Kingdom-run military detention facility located in a United Kingdom base, essentially by analogy with the extraterritorial exception made for embassies. At the hearing before the Court, counsel for the Government confirmed that it was the Government ’ s position that, for example, an individual being taken to a British detention facility on foreign soil in a British military vehicle would not fall within the United Kingdom ’ s jurisdiction until the moment the vehicle and individual passed within the perimeter of the facility. 119. This did not mean that United Kingdom troops were free to act with impunity in Iraq. As Lord Bingham observed in his opinion in the House of Lords, the acts of the United Kingdom forces were subject to and regulated by international humanitarian law. United Kingdom soldiers in Iraq were also subject to United Kingdom domestic criminal law and could be prosecuted in the national courts. The International Criminal Court had jurisdiction to prosecute war crimes where the State was unwilling or unable to prosecute. Civil claims in tort could also be brought in the United Kingdom courts against United Kingdom agents and authorities alleged to have caused injury to individuals in Iraq. ( ii ) The applicants 120. The applicants accepted that jurisdiction under Article 1 was essentially territorial. However, they underlined that it was not exclusively so and that it was possible for a Contracting State to exercise jurisdiction extraterritorially. The procedure under Article 56 allowed States to extend the reach of the Convention to other territories, with due regard to local requirements, by means of a notified declaration. However, it was clear from the case-law that Article 56 was not an exclusive mechanism for extraterritorial applicability. 121. The applicants submitted that the case-law of the Court and Commission recognised the exercise by States of jurisdiction extraterritorially through the principles of both “State agent authority” and “effective control of an area”. The first reference to “State agent authority” jurisdiction was in the Commission ’ s admissibility decision in Cyprus v. Turkey ( nos. 6780/74 and 6950/75, Commission decision of 26 May 1975, DR 2, p. 125, at p. 136 ), when the Commission observed that “authorised agents of the State ... not only remain under its jurisdiction when abroad but bring any other persons or property ‘ within the jurisdiction ’ of that State, to the extent that they exercise authority over such persons or property”. This principle was subsequently applied in Cyprus v. Turkey ( nos. 6780/74 and 6950/75, Commission ’ s report of 10 July 1976 ), when the Commission found that the actions of Turkish soldiers in Cyprus involved the exercise of Turkish jurisdiction. These actions comprised the killing of civilians, including individuals subject to the order of an officer and others shot while attempting to recover possessions from property under Turkish control; the rape of women in empty houses and on the street; the arbitrary detention of civilians; cruelty to detainees; the displacement of civilians; and the military confiscation of property. Since Turkey did not accept the Court ’ s jurisdiction until 1990, the case was never examined by the Court. The Commission ’ s report, however, did not support the suggestion that military custodial authority alone constituted a relationship of sufficient authority and control. 122. The applicants pointed out that in the later cases against Turkey concerning northern Cyprus which were examined by the Commission and the Court during the 1990s, Turkey accepted that its jurisdiction under Article 1 would be engaged in respect of the direct acts of Turkish military personnel. However, the Turkish Government shifted ground and argued that it did not have jurisdiction because the acts in question were not committed by Turkish agents but were instead attributable to an autonomous local administration installed in 1983, the “TRNC”. The Court, in Loizidou (preliminary objections) and in Cyprus v. Turkey ( both cited above ), countered this argument by elaborating the principle of “effective control of an area”, which applied ( see Loizidou (preliminary objections), § 62 ) : “when as a consequence of military action – whether lawful or unlawful – [a Contracting State] exercises effective control of an area outside its national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention derives from the fact of such control whether it be exercised directly, through its armed forces, or through a subordinate local administration. ” In these cases, the Court did not give any indication that the “State agent authority” principle had been supplanted. In fact, in Loizidou (preliminary objections), before setting out the principle of “effective control of an area” jurisdiction, the Court observed (§ 6 2 ) that: “In addition, the responsibility of Contracting Parties can be involved because of acts of their authorities, whether performed within or outside national boundaries, which produce effects outside their own territory (see the Drozd and Janousek v. France and Spain judgment of 26 June 1992, Series A no. 240, p. 29, § 91). ” Furthermore, its conclusion on the question whether the alleged violation was capable of falling within Turkish jurisdiction relied on both grounds equally (§ 63): “In this connection the respondent Government have acknowledged that the applicant ’ s loss of control of her property stems from the occupation of the northern part of Cyprus by Turkish troops and the establishment there of the ‘ TRNC ’. Furthermore, it has not been disputed that the applicant was prevented by Turkish troops from gaining access to her property.” In the Court ’ s subsequent case-law, the two principles had continued to be placed side by side (see Banković and Others, cited above, §§ 69-73; Issa and Others, cited above, §§ 69-71; Andreou v. Turkey (dec.), no. 45653/99, 3 June 2008; and Solomou and Others v. Turkey, no. 36832/97, §§ 44-45, 24 June 2008 ). There was no precedent of the Court to suggest that “ State agent authority ” jurisdiction was inapt as a means of analysing direct actions by military State agents exercising authority. 123. The applicants argued that their dead family members fell within the United Kingdom ’ s jurisdiction under the “ State agent authority ” principle. The Government had accepted, in respect of the sixth applicant ’ s son, that the exercise of authority and control by British military personnel in Iraq was capable of engaging the United Kingdom ’ s extraterritorial jurisdiction. However, jurisdiction in extraterritorial detention cases did not rest on the idea of a military prison as a quasi-territorial enclave. Jurisdiction in respect of the sixth applicant ’ s son would equally have arisen had he been tortured and killed while under arrest at the hotel where he worked or in a locked army vehicle parked outside. Moreover, the authority and control exercised by military personnel was not limited in principle to actions as custodians, even if the arrest and detention of persons outside State territory could be seen as a classic instance of State agent authority (as was argued by the respondent Governments in Banković and Others, cited above, § 37). 124. The applicants submitted that the deceased relatives of all six applicants fell within United Kingdom jurisdiction by virtue of the authority and control exercised over them by United Kingdom State agents. They emphasised that British armed forces had responsibility for public order in Iraq, maintaining the safety and security of local civilians and supporting the civil administration. In performing these functions, the British armed forces were operating within the wider context of the United Kingdom ’ s occupation of south -east Iraq. The control and authority was also exercised through the CPA South Regional Office, which was staffed primarily by British personnel. The individuals killed were civilians to whom the British armed forces owed the duty of safety and security. There was thus a particular relationship of authority and control between the soldiers and the civilians killed. To find that these individuals fell within the authority of the United Kingdom armed forces would not require the acceptance of the impact ‑ based approach to jurisdiction which was rejected in Banković and Others (cited above), but would instead rest on a particular relationship of authority and control. In the alternative, the applicants argued that, at least in respect of the deceased relatives of the second, fourth, fifth and sixth applicants, the British soldiers exercised sufficient authority and control to bring the victims within the United Kingdom ’ s jurisdiction. 125. The applicants further contended that their dead relatives fell within United Kingdom jurisdiction because, at the relevant time, the United Kingdom was in effective control of south -east Iraq. It was their case that where, as a matter of international law, territory was occupied by a State as an Occupying Power, because that territory was actually placed under the authority of that State ’ s hostile army (see Article 42 of the Hague Regulations; paragraph 89 above), that was sufficient to constitute extraterritorial jurisdiction under Article 1 of the Convention. This consequence of belligerent occupation reflected the approach in international law, both as regards extraterritorial jurisdiction and extraterritorial application of human rights based on “jurisdiction”. 126. They rejected the idea that the “effective control of an area” basis of jurisdiction could apply only within the legal space of the Convention. Furthermore, they reasoned that to require a State to exert complete control, similar to that exercised within its own territory, would lead to the perverse position whereby facts disclosing a violation of the Convention would, instead of entitling the victim to a remedy, form the evidential basis for a finding that the State did not exercise jurisdiction. Similarly, defining the existence of control over an area by reference to troop numbers alone would be uncertain, allow evasion of responsibility and promote arbitrariness. The application of the Convention should influence the actions of the Contracting States, prompting careful consideration of military intervention and ensuring sufficient troop numbers to meet their international obligations. The applicants endorsed the approach suggested by Sedley LJ in the Court of Appeal (see paragraph 80 above), that a Contracting State in military occupation was under a duty to do everything possible to keep order and protect essential civil rights. While the Court ’ s case-law (the northern Cyprus cases and Ilaşcu and Others, cited above ) included details of numbers of military personnel deployed, this was relevant to establishing whether a territory had actually been placed under the authority of a hostile army, in cases where the respondent States (Turkey and Russia) denied being in occupation. Where, as in the present case, the respondent State accepted that it was in occupation of the territory, such an assessment was unnecessary. 127. The applicants argued that the duty of an occupying State under international humanitarian law to apply the domestic law of the territorial State and not to impose its own law could not be used to evade jurisdiction under the Convention, since the “effective control of an area” basis of jurisdiction applied also to unlawful occupation. They referred to the judgment of the International Court of Justice in Armed Activities on the Territory of the Congo and its Advisory Opinion Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (see paragraphs 9 0 - 9 1 above), where it found that the occupying State was under a duty to apply international human rights law. The clear principle emerging from these cases was that belligerent occupation in international law was a basis for the recognition of extraterritorial human rights jurisdiction. ( iii ) The third - party interveners 128. The third-party interveners (see paragraph 6 above) emphasised that the Convention was adopted in the aftermath of the events in Europe of the 1930s and 1940s, when appalling human rights abuses were carried out by military forces in occupied territories. It was inconceivable that the drafters of the Convention should have considered that the prospective responsibilities of States should be confined to violations perpetrated on their own territories. Moreover, public international law required that the concept of “jurisdiction” be interpreted in the light of the object and purpose of the particular treaty. The Court had repeatedly had regard to the Convention ’ s special character as an instrument for human rights protection. It was relevant that one of the guiding principles under international human rights law, which had been applied by the United Nations Human Rights Committee and the International Court of Justice when considering the conduct of States outside their territory, was the need to avoid unconscionable double standards, by allowing a State to perpetrate violations on foreign territory which would not be permitted on its own territory. 129. The third-party interveners further emphasised that it was common ground between the international and regional courts and human rights bodies that, when determining whether the acts or omissions of a State ’ s agents abroad fall within its “jurisdiction”, regard must be had to the existence of control, authority or power of that State over the individual in question. When the agents of the State exercised such control, authority or power over an individual outside its territory, that State ’ s obligation to respect human rights continued. This was a factual test, to be determined with regard to the circumstances of the particular act or omission of the State agents. Certain situations, such as military occupations, created a strong presumption that individuals were under the control, authority or power of the occupying State. Indeed, one principle which emerged from the case-law of the International Court of Justice, inter alia (see paragraphs 90-91 above), was that once a situation was qualified as an occupation within the meaning of international humanitarian law, there was a strong presumption of “jurisdiction” for the purposes of the application of human rights law. (b) The Court ’ s assessment (i) General principles relevant to jurisdiction under Article 1 of the Convention 130. Article 1 of the Convention reads as follows: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.” As provided by this Article, the engagement undertaken by a Contracting State is confined to “securing” (“ reconnaître ” in the French text) the listed rights and freedoms to persons within its own “jurisdiction” (see Soering v. the United Kingdom, 7 July 1989, § 8 6, Series A no. 161, and Banković and Others, cited above, § 66 ). “Jurisdiction” under Article 1 is a threshold criterion. The exercise of jurisdiction is a necessary condition for a Contracting State to be able to be held responsible for acts or omissions imputable to it which give rise to an allegation of the infringement of rights and freedoms set forth in the Convention (see Ilaşcu and Others, cited above, § 311 ). (α) The territorial principle 131. A State ’ s jurisdictional competence under Article 1 is primarily territorial (see Soering, cited above, § 8 6; Banković and Others, cited above, §§ 61 and 67; and Ilaşcu and Others, cited above, § 312). Jurisdiction is presumed to be exercised normally throughout the State ’ s territory ( see Ilaşcu and Others, cited above, § 312, and Assanidze v. Georgia [GC], no. 71503/01, § 139, ECHR 2004 ‑ II ). Conversely, acts of the Contracting States performed, or producing effects, outside their territories can constitute an exercise of jurisdiction within the meaning of Article 1 only in exceptional cases ( see Banković and Others, cited above, § 67). 132. To date, the Court in its case-law has recognised a number of exceptional circumstances capable of giving rise to the exercise of jurisdiction by a Contracting State outside its own territorial boundaries. In each case, the question whether exceptional circumstances exist which require and justify a finding by the Court that the State was exercising jurisdiction extraterritorially must be determined with reference to the particular facts. (β) State agent authority and control 133. The Court has recognised in its case-law that, as an exception to the principle of territoriality, a Contracting State ’ s jurisdiction under Article 1 may extend to acts of its authorities which produce effects outside its own territory (see Drozd and Janousek, cited above, § 91; Loizidou (preliminary objections), cited above, § 62; Loizidou v. Turkey (merits), 18 December 1996, § 52, Reports of Judgments and Decisions 1996 ‑ VI; and Banković and Others, cited above, § 69). The statement of principle, as it appears in Drozd and Janousek and the other cases just cited, is very broad: the Court states merely that the Contracting Party ’ s responsibility “can be involved” in these circumstances. It is necessary to examine the Court ’ s case-law to identify the defining principles. 134. Firstly, it is clear that the acts of diplomatic and consular agents, who are present on foreign territory in accordance with provisions of international law, may amount to an exercise of jurisdiction when these agents exert authority and control over others ( see Banković and Others, cited above, § 73; see also X. v. Germany, no. 1611/62, Commission decision of 25 September 1965, Yearbook 8, p. 158; X. v. the United Kingdom, no. 7547/76, Commission decision of 15 December 1977, DR 12, p. 73; and M. v. Denmark, no. 17392/90, Commission decision of 14 October 199 2, DR 73, p. 193 ). 135. Secondly, the Court has recognised the exercise of extraterritorial jurisdiction by a Contracting State when, through the consent, invitation or acquiescence of the Government of that territory, it exercises all or some of the public powers normally to be exercised by that Government ( see Banković and Others, cited above, § 71). Thus, where, in accordance with custom, treaty or other agreement, authorities of the Contracting State carry out executive or judicial functions on the territory of another State, the Contracting State may be responsible for breaches of the Convention thereby incurred, as long as the acts in question are attributable to it rather than to the territorial State ( see Drozd and Janousek, cited above; Gentilhomme and Others v. France, nos. 48205/99, 48207/99 and 48209/99, 14 May 2002; and X. and Y. v. Switzerland, nos. 7289/75 and 7349/76, Commission decision of 14 July 1977, DR 9, p. 57). 136. In addition, the Court ’ s case-law demonstrates that, in certain circumstances, the use of force by a State ’ s agents operating outside its territory may bring the individual thereby brought under the control of the State ’ s authorities into the State ’ s Article 1 jurisdiction. This principle has been applied where an individual is taken into the custody of State agents abroad. For example, in Öcalan (cited above, § 91 ), the Court held that “directly after being handed over to the Turkish officials by the Kenyan officials, the applicant was effectively under Turkish authority and therefore within the ‘ jurisdiction ’ of that State for the purposes of Article 1 of the Convention, even though in this instance Turkey exercised its authority outside its territory”. In Issa and Others (cited above), the Court indicated that, had it been established that Turkish soldiers had taken the applicants ’ relatives into custody in northern Iraq, taken them to a nearby cave and executed them, the deceased would have been within Turkish jurisdiction by virtue of the soldiers ’ authority and control over them. In Al-Saadoon and Mufdhi v. the United Kingdom ( (dec.), no. 61498/08, §§ 86-89, 30 June 2009 ), the Court held that two Iraqi nationals detained in British-controlled military prisons in Iraq fell within the jurisdiction of the United Kingdom, since the United Kingdom exercised total and exclusive control over the prisons and the individuals detained in them. Finally, in Medvedyev and Others v. France ( [GC], no. 3394/03, § 67, ECHR 2010 ), the Court held that the applicants were within French jurisdiction for the purposes of Article 1 of the Convention by virtue of the exercise by French agents of full and exclusive control over a ship and its crew from the time of its interception in international waters. The Court does not consider that jurisdiction in the above cases arose 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. 137. It is clear that, whenever the State, through its agents, exercises control and authority over an individual, and thus jurisdiction, the State is under an obligation under Article 1 to secure to that individual the rights and freedoms under Section I of the Convention that are relevant to the situation of that individual. In this sense, therefore, the Convention rights can be “divided and tailored” (compare Banković and Others, cited above, § 75). (γ) Effective control over an area 138. Another exception to the principle that jurisdiction under Article 1 is limited to a State ’ s own territory occurs when, as a consequence of lawful or unlawful military action, a Contracting State exercises effective control of an area outside that national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention, derives from the fact of such control, whether it be exercised directly, through the Contracting State ’ s own armed forces, or through a subordinate local administration ( see Loizidou (preliminary objections), cited above, § 62; Cyprus v. Turkey, cited above, § 76; Banković and Others, cited above, § 70; Ilaşcu and Others, cited above, §§ 314-16; and Loizidou (merits), cited above, § 52). Where the fact of such domination over the territory is established, 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 to secure, within the area under its control, the entire range of substantive rights set out in the Convention and those additional Protocols which it has ratified. It will be liable for any violations of those rights ( see Cyprus v. Turkey, cited above, § § 76- 77). 139. It is a question of fact whether a Contracting State exercises effective control over an area outside its own territory. In determining whether effective control exists, the Court will primarily have reference to the strength of the State ’ s military presence in the area (see Loizidou (merits), cited above, §§ 16 and 56, and Ilaşcu and Others, cited above, § 387). Other indicators may also be relevant, such as the extent to which its military, economic and political support for the local subordinate administration provides it with influence and control over the region (see Ilaşcu and Others, cited above, §§ 388-94). 140. The “effective control” principle of jurisdiction set out above does not replace the system of declarations under Article 56 of the Convention (formerly Article 63) which the States decided, when drafting the Convention, to apply to territories overseas for whose international relations they were responsible. Article 56 § 1 provides a mechanism whereby any State may decide to extend the application of the Convention, “with due regard ... to local requirements ”, to all or any of the territories for whose international relations it is responsible. The existence of this mechanism, which was included in the Convention for historical reasons, cannot be interpreted in present conditions as limiting the scope of the term “jurisdiction” in Article 1. The situations covered by the “effective control” principle are clearly separate and distinct from circumstances where a Contracting State has not, through a declaration under Article 56, extended the Convention or any of its Protocols to an overseas territory for whose international relations it is responsible (see Loizidou (preliminary objections), cited above, §§ 86-89, and Quark Fishing Ltd, cited above). (δ) The legal space (“ espace juridique ”) of the Convention 141. The Convention is a constitutional instrument of European public order (see Loizidou (preliminary objections), cited above, § 75). It does not govern the actions of States not Parties to it, nor does it purport to be a means of requiring the Contracting States to impose Convention standards on other States (see Soering, cited above, § 86). 142. The Court has emphasised that, where the territory of one Convention State is occupied by the armed forces of another, the occupying State should in principle be held accountable under the Convention for breaches of human rights within the occupied territory, because to hold otherwise would be to deprive the population of that territory of the rights and freedoms hitherto enjoyed and would result in a “vacuum” of protection within the “legal space of the Convention ” (see Cyprus v. Turkey, cited above, § 78, and Banković and Others, cited above, § 80). However, the importance of establishing the occupying State ’ s jurisdiction in such cases does not imply, a contrario, that jurisdiction under Article 1 of the Convention can never exist outside the territory covered by the Council of Europe member States. The Court has not in its case-law applied any such restriction (see, among other examples, Öcalan; Issa and Others; Al ‑ Saadoon and Mufdhi; and Medvedyev and Others, all cited above). (ii) Application of these principles to the facts of the case 143. In determining whether the United Kingdom had jurisdiction over any of the applicants ’ relatives when they died, the Court takes as its starting - point that, on 20 March 2003, the United Kingdom together with the United States of America and their Coalition partners, through their armed forces, entered Iraq with the aim of displacing the Ba ’ ath regime then in power. This aim was achieved by 1 May 2003, when major combat operations were declared to be complete and the United States of America and the United Kingdom became Occupying Powers within the meaning of Article 42 of the Hague Regulations (see paragraph 89 above). 144. As explained in the letter dated 8 May 2003 sent jointly by the Permanent Representatives of the United Kingdom and the United States of America to the President of the United Nations Security Council (see paragraph 11 above), the United States of America and the United Kingdom, having displaced the previous regime, created the CPA “to exercise powers of government temporarily”. One of the powers of government specifically referred to in the letter of 8 May 2003 to be exercised by the United States of America and the United Kingdom through the CPA was the provision of security in Iraq, including the maintenance of civil law and order. The letter further stated that “ [t] he United States, the United Kingdom and Coalition partners, working through the Coalition Provisional Authority, shall, inter alia, provide for security in and for the provisional administration of Iraq, including by ... assuming immediate control of Iraqi institutions responsible for military and security matters ”. 145. In its first legislative act, CPA Regulation No. 1 of 16 May 2003, the CPA declared that it would “ exercise powers of government temporarily in order to provide for the effective administration of Iraq during the period of transitional administration, to restore conditions of security and stability ” (see paragraph 12 above). 146. The contents of the letter of 8 May 2003 were noted by the Security Council in Resolution 1483, adopted on 22 May 2003. This Resolution gave further recognition to the security role which had been assumed by the United States of America and the United Kingdom when, in paragraph 4, it called upon the Occupying Powers “to promote the welfare of the Iraqi people through the effective administration of the territory, including in particular working towards the restoration of conditions of security and stability ” (see paragraph 14 above). 147. During this period, the United Kingdom had command of the military division Multinational Division (South - East), which included the province of Al-Basra, where the applicants ’ relatives died. From 1 May 2003 onwards the British forces in Al-Basra took responsibility for maintaining security and supporting the civil administration. Among the United Kingdom ’ s security tasks were patrols, arrests, anti-terrorist operations, policing of civil demonstrations, protection of essential utilities and infrastructure and protecting police stations (see paragraph 21 above). 148. In July 2003 the Governing Council of Iraq was established. The CPA remained in power, although it was required to consult with the Governing Council (see paragraph 15 above). In Resolution 1511, adopted on 16 October 2003, the United Nations Security Council underscored the temporary nature of the exercise by the CPA of the authorities and responsibilities set out in Resolution 1483. It also authorised “a Multinational Force under unified command to take all necessary measures to contribute to the maintenance of security and stability in Iraq” (see paragraph 16 above). United Nations Security Council Resolution 1546, adopted on 8 June 2004, endorsed “the formation of a sovereign interim government of Iraq ... which will assume full responsibility and authority by 30 June 2004 for governing Iraq” (see paragraph 18 above). In the event, the occupation came to an end on 28 June 2004, when full authority for governing Iraq passed to the interim Iraqi government from the CPA, which then ceased to exist (see paragraph 19 above). (iii) Conclusion as regards jurisdiction 149. It can be seen, therefore, that following the removal from power of the Ba ’ ath regime and until the accession of the interim Iraqi government, the United Kingdom (together with the United States of America ) assumed in Iraq the exercise of some of the public powers normally to be exercised by a sovereign government. In particular, the United Kingdom assumed authority and responsibility for the maintenance of security in south -east Iraq. In these exceptional circumstances, the Court considers that the United Kingdom, through its soldiers engaged in security operations in Basra during the period in question, exercised authority and control over individuals killed in the course of such security operations, so as to establish a jurisdictional link between the deceased and the United Kingdom for the purposes of Article 1 of the Convention. 150. Against this background, the Court recalls that the deaths at issue in the present case occurred during the relevant period: the fifth applicant ’ s son died on 8 May 2003; the first and fourth applicants ’ brothers died in August 2003; the sixth applicant ’ s son died in September 2003; and the spouses of the second and third applicants died in November 2003. It is not disputed that the deaths of the first, second, fourth, fifth and sixth applicants ’ relatives were caused by the acts of British soldiers during the course of or contiguous to security operations carried out by British forces in various parts of Basra City. It follows that in all these cases there was a jurisdictional link for the purposes of Article 1 of the Convention between the United Kingdom and the deceased. The third applicant ’ s wife was killed during an exchange of fire between a patrol of British soldiers and unidentified gunmen and it is not known which side fired the fatal bullet. The Court considers that, since the death occurred in the course of a United Kingdom security operation, when British soldiers carried out a patrol in the vicinity of the applicant ’ s home and joined in the fatal exchange of fire, there was a jurisdictional link between the United Kingdom and this deceased also. 2. Alleged breach of the investigative duty under Article 2 of the Convention 151. The applicants did not complain before the Court of any substantive breach of the right to life under Article 2. Instead they complained that the Government had not fulfilled its procedural duty to carry out an effective investigation into the killings. Article 2 of the Convention provides as follows: “1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” ( a ) The parties ’ submissions ( i ) The Government 152. The Government reasoned that the procedural duty under Article 2 had to be interpreted in harmony with the relevant principles of international law. Moreover, any implied duty should not be interpreted in such a way as to place an impossible or disproportionate burden on a Contracting State. The United Kingdom did not have full control over the territory of Iraq and, in particular, did not have legislative, administrative or judicial competence. If the investigative duty were to apply extraterritorially, it had to take account of these circumstances, and also of the very difficult security conditions in which British personnel were operating. 153. The Government accepted that the investigations into the deaths of the first, second and third applicants ’ relatives were not sufficiently independent for the purposes of Article 2, since in each case the investigation was carried out solely by the Commanding Officers of the soldiers alleged to be responsible. However, they submitted that the investigations carried out in respect of the deaths of the fourth and fifth applicants ’ relatives complied with Article 2. Nor had there been any violation of the investigative duty in respect of the sixth applicant; indeed, he did not allege that the investigation in his case had failed to comply with Article 2. 154. The Government emphasised, generally, that the Royal Military Police investigators were institutionally independent of the armed forces. They submitted that the Court of Appeal had been correct in concluding that the Special Investigation Branch of the Royal Military Police was capable of conducting independent investigations (see paragraph 8 2 above), although Brooke LJ had also commented that the task of investigating loss of life “must be completely taken away from the military chain of command and vested in the [Royal Military Police] ”. The role of the military chain of command in notifying the Special Investigation Branch of an incident requiring investigation, and its subsequent role in referring cases investigated by the Special Investigation Branch to the Army Prosecuting Authority did not, however, mean that those investigations lacked independence as required by Articles 2 or 3 (see Cooper v. the United Kingdom [GC], no. 48843/99, §§ 108-15, ECHR 2003 ‑ XII; McKerr v. the United Kingdom, no. 28883/95, ECHR 2001 ‑ III; and Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, ECHR 2002 ‑ II). The Army Prosecuting Authority was staffed by legally qualified officers. It was wholly independent from the military chain of command in relation to its prosecuting function. Its independence had been recognised by the Court in Cooper (cited above). 155. The Government pointed out that an investigation into the fourth applicant ’ s brother ’ s death was commenced by the Special Investigation Branch on 29 August 2003, five days after the shooting on 14 August. The Special Investigation Branch recovered fragments of bullets, empty bullet cases and the vehicle, and took digital photographs of the scene. They interviewed the doctors who treated the deceased and took statements. Nine military witnesses involved in the incident were interviewed and had statements taken and four further witnesses were interviewed but had no evidence to offer. The investigation was discontinued on 17 September 2003 after the Brigade Commander expressed the view that the shooting fell within the rules of engagement and was lawful. However, the decision to discontinue was taken by a Special Investigation Branch senior investigating officer, who was independent of the military chain of command. The investigation was reopened on 7 June 2004 and completed on 3 December 2004, despite the difficult security conditions in Iraq at that time. The case was then referred to the Army Prosecuting Authority, which decided not to bring criminal charges as there was no realistic prospect of proving that the soldier who shot the fourth applicant ’ s brother had not been acting in self ‑ defence. The Attorney General was notified and he decided not to exercise his jurisdiction to order a prosecution. In the Government ’ s submission, the investigation was effective, in that it identified the person responsible for the death and established that the laws governing the use of force had been followed. The investigation was reasonably prompt, in particular when regard was had to the extreme difficulty of investigating in the extraterritorial context. If the halting of the initial investigation gave rise to any lack of independence, this was cured by the subsequent investigation and the involvement of the Army Prosecuting Authority and the Attorney General (see Gül v. Turkey, no. 22676/93, §§ 9 2-95, 14 December 2000; see also McCann and Others v. the United Kingdom, 27 September 1995, §§ 157 and 162- 64, Series A no. 324). 156. The Government submitted that there was no evidence, in the fifth applicant ’ s case, that the military chain of command interfered with the Special Investigation Branch investigation so as to compromise its independence. On the contrary, after receiving the investigation report the military chain of command referred the case to the Army Prosecuting Authority who in turn referred it for independent criminal trial. There was no undue delay in the investigation, in particular having regard to the difficulties faced by United Kingdom investigators investigating an incident which took place in Iraq eight days after the cessation of major combat operations. The fifth applicant was fully and sufficiently involved in the investigation. His participation culminated in the United Kingdom authorities flying him to England so that he could attend the court martial and give evidence. In addition to the Special Investigation Branch investigation and the criminal proceedings against the four soldiers, the fifth applicant brought civil proceedings in the United Kingdom domestic courts, claiming damages for battery and assault, negligence and misfeasance in public office. In those proceedings, he gave an account of his son ’ s death and the investigation which followed it. The proceedings were settled when the Ministry of Defence admitted liability and agreed to pay GBP 115,000 by way of compensation. Moreover, on 20 February 2009 Major General Cubitt wrote to the fifth applicant and formally apologised on behalf of the British army for its role in the death of his son. In these circumstances, the fifth applicant could no longer claim to be a victim of a violation of the Convention within the meaning of Article 34. Further, or in the alternative, it was no longer justified to continue the examination of the application (Article 37 § 1 (c) of the Convention). 157. The Government further emphasised that the sixth applicant had expressly confirmed that he did not claim before the Court that the Government had violated his Convention rights. This reflected the fact that, in relation to his son ’ s death, there had been ( a ) a full investigation by the Special Investigation Branch, leading to the bringing of criminal charges against six soldiers, one of whom was convicted; ( b ) civil proceedings brought by the applicant, which were settled when the Government admitted liability for the mistreatment and death of the applicant ’ s son and paid damages of GBP 575,000; ( c ) a formal public acknowledgement by the Government of the breach of the applicant ’ s son ’ s rights under Articles 2 and 3; ( d ) judicial review proceedings, in which the applicant complained of a breach of his procedural rights under Articles 2 and 3 and in which it was agreed by the parties and ordered by the House of Lords that the question whether there had been a breach of the procedural obligation should be remitted to the Divisional Court; and ( e ) a public inquiry, which was ongoing. In these circumstances, the applicant could no longer claim to be a victim for the purposes of Article 34 of the Convention. ( ii ) The applicants 158. The applicants emphasised that the Court ’ s case-law regarding south-eastern Turkey demonstrated that the procedural duty under Article 2 was not modified by reference to security problems in a conflict zone. The same principle had to apply in relation to any attempt by the Government to rely on either the security situation or the lack of infrastructure and facilities in Iraq. The United Kingdom was aware, or should have been aware, prior to the invasion and during the subsequent occupation, of the difficulties it would encounter. Its shortcomings in making provision for those difficulties could not exonerate it from the failure to comply with the investigative duty. 159. They submitted that the United Kingdom had failed in its procedural duty as regards the first, second, third, fourth and fifth applicants. The Royal Military Police was an element of the British army and was not, in either institutional or practical terms, independent from the military chain of command. The army units exercised control over it in matters relating to safety and logistical support while in theatre. Its involvement in incidents was wholly dependent on a request from the military unit in question, as was illustrated by the fourth applicant ’ s case, where the Special Investigation Branch response was stood down upon the instruction of the Commanding Officer. The Royal Military Police appeared to have been wholly dependent on the military chain of command for information about incidents. If it produced a report, this was given to the military chain of command, which decided whether to forward it to the Army Prosecuting Authority. The inadequacies within the Royal Military Police, regarding both lack of resources and independence, were noted by the Court of Appeal and by the Aitken Report. 160. The applicants pointed out that the Special Investigation Branch investigation into the fourth applicant ’ s case had been discontinued at the request of the military chain of command. The further investigatory phase, reopened as a result of litigation in the domestic courts, was similarly deficient, given the lack of independence of the Special Investigation Branch and the extreme delay in interviewing the person responsible for firing the shots and securing other key evidence. In the fifth applicant ’ s case, the investigation was initiated at the repeated urging of the family, after considerable obstruction and delay on the part of the British authorities. The investigators were not independent from the military chain of command and the victim ’ s family were not sufficiently involved. The applicants contended that the Government ’ s objection that the fifth applicant lacked victim status should be rejected. The court-martial proceedings and the compensation he had received in settlement of the civil proceedings were inadequate to satisfy the procedural requirement under Article 2. In contrast, the sixth applicant did not claim still to be a victim of the violation of his procedural rights under Articles 2 and 3. ( b ) The Court ’ s assessment ( i ) General principles 161. The Court is conscious that the deaths in the present case occurred in Basra City in south -east Iraq in the aftermath of the invasion, during a period when crime and violence were endemic. Although major combat operations had ceased on 1 May 2003, the Coalition Forces in south -east Iraq, including British soldiers and military police, were the target of over a thousand violent attacks in the subsequent thirteen months. In tandem with the security problems, there were serious breakdowns in the civilian infrastructure, including the law enforcement and criminal justice systems (see paragraphs 22-23 above; see also the findings of the Court of Appeal at paragraph 80 above ). 162. While remaining fully aware of this context, the Court ’ s approach must be guided by the knowledge that the object and purpose of the Convention as an instrument for the protection of individual human beings requires that its provisions be interpreted and applied so as to make its safeguards practical and effective. Article 2, which protects the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions of the Convention. No derogation from it is permitted under Article 15, “except in respect of deaths resulting from lawful acts of war”. Article 2 covers both intentional killing and also the situations in which it is permitted to use force which may result, as an unintended outcome, in the deprivation of life. Any use of force must be no more than “absolutely necessary” for the achievement of one or more of the purposes set out in sub-paragraphs (a) to (c) ( see McCann and Others, cited above, §§ 146 ‑ 48 ). 163. The general legal prohibition of arbitrary killing by agents of the State would be ineffective in practice if there existed no procedure for reviewing the lawfulness of the use of lethal force by State authorities. The obligation to protect the right to life under this provision, read in conjunction with the State ’ s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alios, agents of the State ( see McCann and Others, cited above, § 161). The essential purpose of such an investigation is to secure the effective implementation of the domestic laws safeguarding the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility ( see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 110, ECHR 2005-VII). However, the investigation should also be broad enough to permit the investigating authorities to take into consideration not only the actions of the State agents who directly used lethal force but also all the surrounding circumstances, including such matters as the planning and control of the operations in question, where this is necessary in order to determine whether the State complied with its obligation under Article 2 to protect life (see, by implication, McCann and Others, cited above, §§ 150 and 162; Hugh Jordan v. the United Kingdom, no. 24746/94, § 1 28, 4 May 2001; McKerr, cited above, §§ 143 and 151; Shanaghan v. the United Kingdom, no. 37715/97, § § 100-25, 4 May 2001; Finucane v. the United Kingdom, no. 29178/95, §§ 77-78, ECHR 2003 ‑ VIII; Nachova and Others, cited above, §§ 114-15; and, mutatis mutandis, Tzekov v. Bulgaria, no. 45500/99, § 71, 23 February 2006). 164. The Court has held that the procedural obligation under Article 2 continues to apply in difficult security conditions, including in a context of armed conflict (see, among other examples, Güleç v. Turkey, 27 July 1998, § 81, Reports 1998 ‑ IV; Ergi v. Turkey, 28 July 1998, §§ 79 and 82, Reports 1998 ‑ IV; Ahmet Özkan and Others v. Turkey, no. 21689/93, §§ 8 5-90, 309-20 and 326-30, 6 April 2004; Isayeva v. Russia, no. 57950/00, §§ 180 and 210, 24 February 2005; and Kanlibaş v. Turkey, no. 32444/96, §§ 39-51, 8 December 2005). It is clear that where the death to be investigated under Article 2 occurs in circumstances of generalised violence, armed conflict or insurgency, obstacles may be placed in the way of investigators and, as the United Nations Special Rapporteur has also observed (see paragraph 93 above), concrete constraints may compel the use of less effective measures of investigation or may cause an investigation to be delayed (see, for example, Bazorkina v. Russia, no. 69481/01, § 121, 27 July 2006). Nonetheless, the obligation under Article 2 to safeguard life entails that, even in difficult security conditions, all reasonable steps must be taken to ensure that an effective, independent investigation is conducted into alleged breaches of the right to life (see, among many other examples, Kaya v. Turkey, 19 February 1998, §§ 86 ‑ 92, Reports 1998 ‑ I; Ergi, cited above, §§ 82-85; Tanrıkulu v. Turkey [GC], no. 23763/94, §§ 101- 10, ECHR 1999 ‑ IV; Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, §§ 156-66, 24 February 2005; Isayeva, cited above, §§ 215 ‑ 24; and Musayev and Others v. Russia, nos. 57941/00, 58699/00 and 60403/0 0, §§ 158-65, 26 July 2007). 165. What form of investigation will achieve the purposes of Article 2 may vary depending on the circumstances. However, whatever mode is employed, the authorities must act of their own motion once the matter has come to their attention. They cannot leave it to the initiative of the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures ( see Ahmet Özkan and Others, cited above, § 310, and Isayeva, cited above, § 210). Civil proceedings, which are undertaken on the initiative of the next of kin, not the authorities, and which do not involve the identification or punishment of any alleged perpetrator, cannot be taken into account in the assessment of the State ’ s compliance with its procedural obligations under Article 2 of the Convention ( see, for example, Hugh Jordan, cited above, § 141). Moreover, the procedural obligation of the State under Article 2 cannot be satisfied merely by awarding damages (see McKerr, cited above, § 121, and Bazorkina, cited above, § 117 ). 166. As stated above, the investigation must be effective in the sense that it is capable of leading to a determination of whether the force used was or was not justified in the circumstances and to the identification and punishment of those responsible. This is not an obligation of result, but of means. The authorities must take the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death. Any deficiency in the investigation which undermines its ability to establish the cause of death or the person or persons responsible will risk falling foul of this standard ( see Ahmet Özkan and Others, cited above, § 312, and Isayeva, cited above, § 212 and the cases cited therein). 167. For an investigation into alleged unlawful killing by State agents to be effective, it is necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events. This means not only a lack of hierarchical or institutional connection but also a practical independence (see, for example, Shanaghan, cited above, § 104). A requirement of promptness and reasonable expedition is implicit in this context. While there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities in investigating a use of lethal force may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts. For the same reasons, there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case. In all cases, however, the victim ’ s next of kin must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests ( see Ahmet Özkan and Others, cited above, §§ 311 ‑ 14, and Isayeva, cited above, §§ 211-14 and the cases cited therein). ( ii ) Application of these principles to the facts of the case 168. The Court takes as its starting - point the practical problems caused to the investigating authorities by the fact that the United Kingdom was an Occupying Power in a foreign and hostile region in the immediate aftermath of invasion and war. These practical problems included the breakdown in the civil infrastructure, leading, inter alia, to shortages of local pathologists and facilities for autopsies; the scope for linguistic and cultural misunderstandings between the occupiers and the local population; and the danger inherent in any activity in Iraq at that time. As stated above, the Court considers that in circumstances such as these the procedural duty under Article 2 must be applied realistically, to take account of specific problems faced by investigators. 169. Nonetheless, the fact that the United Kingdom was in occupation also entailed that, if any investigation into acts allegedly committed by British soldiers was to be effective, it was particularly important that the investigating authority was, and was seen to be, operationally independent of the military chain of command. 170. It was not in issue in the first, second and fourth applicants ’ cases that their relatives were shot by British soldiers, whose identities were known. The question for investigation was whether in each case the soldier fired in conformity with the rules of engagement. In respect of the third applicant, Article 2 required an investigation to determine the circumstances of the shooting, including whether appropriate steps were taken to safeguard civilians in the vicinity. As regards the fifth applicant ’ s son, although the Court has not been provided with the documents relating to the court martial, it appears to have been accepted that he died of drowning. It needed to be determined whether British soldiers had, as alleged, beaten the boy and forced him into the water. In each case, eyewitness testimony was crucial. It was therefore essential that, as quickly after the event as possible, the military witnesses, and in particular the alleged perpetrators, should have been questioned by an expert and fully independent investigator. Similarly, every effort should have been taken to identify Iraqi eyewitnesses and to persuade them that they would not place themselves at risk by coming forward and giving information and that their evidence would be treated seriously and acted upon without delay. 171. It is clear that the investigations into the shooting of the first, second and third applicants ’ relatives fell short of the requirements of Article 2, since the investigation process remained entirely within the military chain of command and was limited to taking statements from the soldiers involved. Moreover, the Government accept this conclusion. 172. As regards the other applicants, although there was an investigation by the Special Investigation Branch into the death of the fourth applicant ’ s brother and the fifth applicant ’ s son, the Court does not consider that this was sufficient to comply with the requirements of Article 2. It is true that the Royal Military Police, including its Special Investigation Branch, had a separate chain of command from the soldiers on combat duty whom it was required to investigate. However, as the domestic courts observed (see paragraphs 77 and 82 above), the Special Investigation Branch was not, during the relevant period, operationally independent from the military chain of command. It was generally for the Commanding Officer of the unit involved in the incident to decide whether the Special Investigation Branch should be called in. If the Special Investigation Branch decided on its own initiative to commence an investigation, this investigation could be closed at the request of the military chain of command, as demonstrated in the fourth applicant ’ s case. On conclusion of a Special Investigation Branch investigation, the report was sent to the Commanding Officer, who was responsible for deciding whether or not the case should be referred to the Army Prosecuting Authority. The Court considers, in agreement with Brooke LJ (see paragraph 8 2 above), that the fact that the Special Investigation Branch was not “free to decide for itself when to start and cease an investigation” and did not report “in the first instance to the [Army Prosecuting Authority]” rather than to the military chain of command, meant that it could not be seen as sufficiently independent from the soldiers implicated in the events to satisfy the requirements of Article 2. 173. It follows that the initial investigation into the shooting of the fourth applicant ’ s brother was flawed by the lack of independence of the Special Investigation Branch officers. During the initial phase of the investigation, material was collected from the scene of the shooting and statements were taken from the soldiers present. However, Lance Corporal S. , the soldier who shot the applicant ’ s brother, was not questioned by Special Investigation Branch investigators during this initial phase. It appears that the Special Investigation Branch interviewed four Iraqi witnesses, who may have included the neighbours the applicant believes to have witnessed the shooting, but did not take statements from them. In any event, as a result of the lack of independence, the investigation was terminated while still incomplete. It was subsequently reopened, some nine months later, and it would appear that forensic tests were carried out at that stage on the material collected from the scene, including the bullet fragments and the vehicle. The Special Investigation Branch report was sent to the Commanding Officer, who decided to refer the case to the Army Prosecuting Authority. The prosecutors took depositions from the soldiers who witnessed the incident and decided, having taken further independent legal advice, that there was no evidence that Lance Corporal S. had not acted in legitimate self-defence. As previously stated, eyewitness testimony was central in this case, since the cause of the death was not in dispute. The Court considers that the long period of time that was allowed to elapse before Lance Corporal S. was questioned about the incident, combined with the delay in having a fully independent investigator interview the other military witnesses, entailed a high risk that the evidence was contaminated and unreliable by the time the Army Prosecuting Authority came to consider it. Moreover, it does not appear that any fully independent investigator took evidence from the Iraqi neighbours who the applicant claims witnessed the shooting. 174. While there is no evidence that the military chain of command attempted to intervene in the investigation into the fifth applicant ’ s son ’ s death, the Court considers that the Special Investigation Branch investigators lacked independence for the reasons set out above. In addition, no explanation has been provided by the Government in respect of the long delay between the death and the court martial. It appears that the delay seriously undermined the effectiveness of the investigation, not least because some of the soldiers accused of involvement in the incident were by then untraceable (see, in this respect, the comments in the Aitken Report, paragraph 6 1 above). Moreover, the Court considers that the narrow focus of the criminal proceedings against the accused soldiers was inadequate to satisfy the requirements of Article 2 in the particular circumstances of this case. There appears to be at least prima facie evidence that the applicant ’ s son, a minor, was taken into the custody of British soldiers who were assisting the Iraqi police to take measures to combat looting and that, as a result of his mistreatment by the soldiers, he drowned. In these circumstances, the Court considers that Article 2 required an independent examination, accessible to the victim ’ s family and to the public, of the broader issues of State responsibility for the death, including the instructions, training and supervision given to soldiers undertaking tasks such as this in the aftermath of the invasion. 175. In the light of the foregoing, the Court does not consider that the procedural duty under Article 2 has been satisfied in respect of the fifth applicant. Although he has received a substantial sum in settlement of his civil claim, together with an admission of liability on behalf of the army, there has never been a full and independent investigation into the circumstances of his son ’ s death (see paragraph 165 above). It follows that the fifth applicant can still claim to be a victim within the meaning of Article 34 and that the Government ’ s preliminary objection regarding his lack of victim status must be rejected. 176. In contrast, the Court notes that a full, public inquiry is nearing completion into the circumstances of the sixth applicant ’ s son ’ s death. In the light of this inquiry, the Court notes that the sixth applicant accepts that he is no longer a victim of any breach of the procedural obligation under Article 2. The Court therefore accepts the Government ’ s objection in respect of the sixth applicant. 177. In conclusion, the Court finds a violation of the procedural duty under Article 2 of the Convention in respect of the first, second, third, fourth and fifth applicants. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 178. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 179. The first, second, third, fourth and fifth applicants asked the Court to order the Government to carry out an Article 2-compliant investigation into their relatives ’ deaths. They also claimed 15,000 pounds sterling (GBP) each in compensation for the distress they had suffered because of the United Kingdom ’ s failure to conduct a Convention-compliant investigation into the deaths. 180. The Government pointed out that the Court had repeatedly and expressly refused to direct the State to carry out a fresh investigation in cases in which it had found a breach of the procedural duty under Article 2 (see, for example, Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 222, ECHR 2009; Ülkü Ekinci v. Turkey, no. 27602/95, § 179, 16 July 2002; and Finucane, cited above, § 89 ). They further submitted that a finding of a violation would be sufficient just satisfaction in the circumstances. In the alternative, if the Court decided to make an award, the Government noted that the sum claimed by the applicants was higher than generally awarded. They did not, however, propose a sum, leaving it to the Court to decide on an equitable basis. 181. As regards the applicants ’ request concerning the provision of an effective investigation, the Court reiterates the general principle that the respondent State remains free to choose the means by which it will discharge its legal obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court ’ s judgment. Consequently, it considers that in these applications it falls to the Committee of Ministers acting under Article 46 of the Convention to address the issues as to what may be required in practical terms by way of compliance (see Varnava and Others, cited above, § 222, and the cases cited therein ). 182. As regards the claim for monetary compensation, the Court recalls that it is not its role under Article 41 to function akin to a domestic tort mechanism court in apportioning fault and compensatory damages between civil parties. Its guiding principle is equity, which above all involves flexibility and an objective consideration of what is just, fair and reasonable in all the circumstances of the case, including not only the position of the applicant but the overall context in which the breach occurred. Its non ‑ pecuniary awards serve to give recognition to the fact that moral damage occurred as a result of a breach of a fundamental human right and reflect in the broadest of terms the severity of the damage (see Varnava and Others, cited above, § 224, and the cases cited therein). In the light of all the circumstances of the present case, the Court considers that, to compensate each of the first five applicants for the distress caused by the lack of a fully independent investigation into the deaths of their relatives, it would be just and equitable to award the full amount claimed, which, when converted into euros, comes to approximately 17,000 euros (EUR) each. B. Costs and expenses 183. The applicants, emphasising the complexity and importance of the case, claimed for over 580 hours ’ legal work by their solicitors and four counsel in respect of the proceedings before the Court, at a total cost of GBP 119,928. 184. The Government acknowledged that the issues were complex, but nonetheless submitted that the claim was excessive, given that the applicants ’ legal advisers were familiar with all aspects of the claim since they had acted for the applicants in the domestic legal proceedings, which had been publicly funded. Furthermore, the hourly rates claimed by the applicants ’ counsel, ranging between GBP 500 and GBP 235, and the hourly rates claimed by the applicants ’ solicitors, ranging between GBP 180 and GBP 130, were unreasonably high. Nor had it been necessary to engage two Queen ’ s Counsel and two junior counsel. 185. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 50,000 for the proceedings before the Court. C. Default interest 186. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court held that, in the exceptional circumstances deriving from the United Kingdom’s assumption of authority for the maintenance of security in South East Iraq from 1 May 2003 to 28 June 2004, the United Kingdom had jurisdiction under Article 1 (obligation to respect human rights) of the Convention in respect of civilians killed during security operations carried out by UK soldiers in Basrah. It found that there had been a failure to conduct an independent and effective investigation into the deaths of the relatives of five of the six applicants, in violation of Article 2 (right to life) of the Convention.