Kontic & Ors v The Ministry of Defence

These claims arise from the dangerous and chaotic period which followed the deployment of the international military coalition known as the Kosovo Force (“KFOR”) into Kosovo, in June 1999. Following violence and unrest, and the departure of many ethnic Albanian citizens of Kosovo outside the country, the United Nations Security Council passed Resolution 1244 (“UNSCR 1244”), on 10 June 1999, authorising the deployment of KFOR.

Continuing ethnic conflict within Kosovo had led to the displacement of large numbers of ethnic Albanian Kosovars. An air bombardment of Kosovo followed, beginning on 24 March 1999. By 8 June 1999, the authorities in the Federal Republic of Yugoslavia [“FRY”], who were overwhelmingly ethnic Serbians, had agreed to withdraw. The aerial bombardment was halted. On 9 June a Military Technical Agreement (“MTA”) was signed, providing for the phased withdrawal of FRY forces and their replacement by KFOR.

On the following day, 10 June 1999, the United Nations Security Council passed Resolution 1244. The troops constituting KFOR had massed in Macedonia. There were contingents from many nations. British forces were an important component, and the Commander of KFOR was General Sir Michael Jackson. On 12 June KFOR began the move into Kosovo. The last Serb forces left on 20 June.

Part of the operational plan for KFOR was that the component of KFOR comprised of UK forces would occupy the central area of Kosovo, including the largest population centre, the city of Pristina. The three Claimants are the widows of Serbs abducted or murdered in or near Pristina, between 16 June and 5 July 1999. In the case of the Second Claimant, her teenage son was murdered alongside his father. In very short summary, the Claimants allege that British forces “failed to protect their family members or properly investigate [the killings] and to date the perpetrators remain at large”.

The great part of this judgment is concerned with technical legal matters. Before I embark on such considerations, I wish to record that I understand the terrible impact of such killings. I readily comprehend the feelings of the Claimants at their losses, and at the lack of any final explanation of what happened. The Court has every sympathy with the position of the Claimants.

In earlier hearings, preliminary issues were identified, and this judgment addresses the following issues:

“2.

In respect of all of the claims:

a.

Are they barred in the English Courts as a matter of international law by reason of the immunity conferred on the Defendant under UN Security Council Resolution 1244 and set out in the Joint Declaration and UNMIK Regulation 2000/47? Alternatively, are they barred as an abuse of the process of this Court as a matter of English procedural law?

b.

Were the acts and omissions as alleged against the Defendant:

i.

Attributable to the United Kingdom; or

ii.

Attributable to the UN?

3.

In respect of the HRA claims:

a.

Whether or not the HRA claims are time barred. In this regard:

i.

Did time start to run from an ‘instantaneous act’ of the authorities; and/or

ii.

is there a continuing violation of the Convention for the purpose of extending the one year limitation period under the Human Rights Act 1998.

b.

Does the HRA apply to the deaths and disappearances which are the subject of the complaint given that the HRA does not have retrospective effect in relation to deaths that occurred prior to 2 October 2000?

c.

Were the Claimants within the jurisdiction of the UK for the purposes of Article 1 ECHR?

d.

Does an operational protective duty arise under Articles 2 and 3 ECHR?

e.

Does an investigative duty arise under Articles 2 or 3 ECHR and is there a continuing duty to investigate 16 years later?

f.

Are Articles 8 and 13 of the ECHR engaged?”

Two further issues have been stayed, pending the outcome of other proceedings before the Supreme Court, since the judgments in the Supreme Court may be determinative of those further issues.

At the close of the hearing, leading counsel for the Claimants indicated that she sought to supplement the written submissions on the evidence. A Note was sent on 27 May 2016. I have read that, and taken it into account, alongside a brief response from the Defendant, in its letter of 7 June.

I have also noted the minor correction to the Defendant’s closing submissions, contained in the letter of 7 June.

After the hearing, the Claimants’ solicitors filed extensive further submissions entitled “Supplemental Submissions on Attribution and Jurisdiction under the Law of the European Union”, with enclosures. It appears this document is a revised version of submissions which were put forward by the solicitors during the hearing, and then withdrawn. Counsel for the Claimants stated at the time they had no instructions in relation to these submissions; they did not bear the signature of counsel instructed. In their letter of 7 June, the Defendant objects to these submissions being received: they are late, not filed with permission, and are said not to relate to the matters set down for determination at preliminary issue by Master Leslie. In the light of the irregular way in which these submissions have been produced, and the Defendant’s objections, I have not read them. To do so would be to encourage an incoherent process.

I address the issues in the sequence which seems to me most logical and convenient rather than list order. Important to all of them is the factual and legal basis on which KFOR entered into and occupied Kosovo.

I have had extensive written material placed before me, including statements from all three Claimants. I have also heard oral evidence from five witnesses: General Jackson, Lieutenant General Sir William Rollo, Major General Jeremy Rowan, Squadron Leader Anthony Quinn and Warrant Officer Ian Pratt. Aside from Warrant Officer Pratt, each of these witnesses is retired from service. In addition I have read the statements of Lieutenant Colonel Timothy Watton, and Warrant Officer Ian Pratt.

The decision by NATO to commence air strikes on Kosovo, the territory of the FRY, was announced on 30 January 1999. There followed negotiation between the FRY, the Kosovar Albanian leadership and NATO countries in France. The Rambouillet accords were, however, never signed by Belgrade. As a consequence NATO air strikes actually began on 24 March 1999. Discussions clearly continued during the air campaign, involving FRY, NATO and UN representatives, with others. They culminated in a series of choreographed steps in early June. General Jackson emphasised the linkage between these steps in his evidence: each step happened because the next was anticipated.

On 3 June 1999, detailed terms for the cessation of air strikes and withdrawal were presented to the Serb Parliament and the Yugoslav government. On 8 June 1999, in anticipation of the MTA and of what became UNSCR 1244, the forces of Yugoslavia [“the Serb forces”] agreed to leave Kosovo. The air strikes ended.

The next step took place on the following day. General Jackson had been serving as Commander of the Allied Rapid Reaction Corps, a NATO force. As such, he had deployed to Macedonia in March 1999. It was this force which formed the nucleus of what became KFOR, and General Jackson served as Commander of KFOR from 9 June to 8 October 1999. In that capacity, he served as a NATO officer. He reported to General Wesley Clark, the Supreme Allied Commander, Europe.

As anticipated, General Jackson signed the MTA as Commander of KFOR on 9 June. Article 1 of the MTA recorded that KFOR would deploy into Kosovo, following the adoption of the UN Security Council Resolution; that took place the next day with the passage of UNSCR 1244. The legal position of KFOR falls to be considered, therefore, in the light both of the MTA and UNSCR 1244.

The critical provisions of UNSCR 1244 for present purposes are:

“The Security Council

…

5.

Decides on the deployment in Kosovo, under United Nations auspices, of international civil and security presences, with appropriate equipment and personnel as required, and welcomes the agreement of the Federal Republic of Yugoslavia to such presences;

6.

Requests the Secretary-General to appoint, in consultation with the Security Council, a Special Representative to control the implementation of the international civil presence, and further requests the Secretary-General to instruct his Special Representative to coordinate closely with the international security presence to ensure that both presences operate towards the same goals and in a mutually supportive manner;

7.

Authorizes Member States and relevant international organizations to establish the international security presence in Kosovo as set out in point 4 of annex 2 with all necessary means to fulfil its responsibilities under paragraph 9 below;

8.

Affirms the need for the rapid early deployment of effective international civil and security presences to Kosovo, and demands that the parties cooperate fully in their deployment;

9.

Decides that the responsibilities of the international security presence to be deployed and acting in Kosovo will include:

…

(c)

establishing a secure environment in which refugees and displaced persons can return home in safety, the international civil presence can operate, a transitional administration can be established, and humanitarian aid can be delivered;

(d)

Ensuring public safety and order until the international civil presence can take responsibility for this task;

…

(f)

Supporting, as appropriate, and coordinating closely with the work of the international civil presence;

10.

Authorizes the Secretary-General, with the assistance of relevant international organizations, to establish an international civil presence in Kosovo in order to provide an interim administration for Kosovo under which the people of Kosovo can enjoy substantial autonomy within the Federal Republic of Yugoslavia, and which will provide transitional administration while establishing and overseeing the development of provisional democratic self-governing institutions to ensure conditions for a peaceful and normal life for all inhabitants of Kosovo;

11.

Decides that the main responsibilities of the international civil presence will include:

…

(i)

Maintaining civil law and order, including establishing local police forces and meanwhile through the deployment of international police personnel to serve in Kosovo;

(j)

Protecting and promoting human rights;

(k)

Assuring the safe and unimpeded return of all refugees and displaced persons to their homes in Kosovo.”

Article 1 of the MTA rehearsed an identical phrase concerning KFOR:

“The parties to this agreement reaffirm the document [approved in Belgrade on 3 June] … to include deployment in Kosovo under United Nations auspices of effective international civil and security presences …”

The MTA was annexed to UNSCR 1244. Annex 2 to the Resolution also included the following:

“4.

The international security presence with substantial North Atlantic Treaty Organization participation must be deployed under unified command and control and authorized to establish a safe environment for all people in Kosovo and to facilitate the safe return to their homes of all displaced persons and refugees.”

The factual position as to the structure and chain of command of KFOR does not appear to be controversial, although it is important background to the legal argument over attribution, and the parties are at odds on the implications of the evidence.

KFOR consisted of approximately 15,000 troops at first deployment. By mid July, over 30,000 troops had deployed from 17 Troop Contributing Nations [“TCNs”]. Further TCNs made contributions later. Kosovo was divided into five sections, each under the control of a multinational brigade and headquarters, each with a lead nation. Multinational Brigade Centre [“MNB Centre”] had the United Kingdom as lead nation. The headquarters of KFOR, from which General Jackson commanded KFOR as a whole, was in Pristina, inside MNB Centre. MNB Centre contained the capital city, the international airport, and the major hospital in Kosovo.

As Commander KFOR, General Jackson held sufficient transferred command to permit him to “direct and coordinate KFOR forces effectively” (Jackson statement 4 March, paragraph 16). The exact mechanism of command varied between TCNs. General Jackson describes the position in MNB Centre as follows:

“16.

…In the case of the UK, I had what is referred to as “Operational Control” of troops from 4^th Armoured Brigade and 5^th Airborne Brigade which allowed me to direct them within certain limits to fulfil KFOR’s mission within Kosovo. However, the TCNs such as the UK retained control of certain aspects of their forces such as discipline and equipment for which the national chain of command remained in place. There were also sections of the forces contributed by TCNs which remained national assets and were not within my command. This was generally because they fulfilled a supporting function such as logistics. The important thing for me was that I had Operational Control of the troops, such as those from 4^th Armoured Brigade and 5^th Airborne Brigade, who were on the streets providing security and other tasks directly connected with our mission under UNSCR 1244.

…

18.

Along with the other national Commanders in the other sectors, Brigadier Rollo and Brigadier Freer reported to me. I was in constant contact with the Brigade Commanders. I received daily updates on events within their sectors both orally and in writing. We had conference calls each day at 6pm to which all MNB Commanders were invited and I had numerous more ad hoc discussions with the MNB Commanders as events happened and circumstances changed.

19.

The majority of the directions I provided to the MNB Commanders would have been given orally at the daily update calls or on more ad hoc occasions. This was complemented by formal written operational orders and guidance issued by my headquarters (some examples of which I discuss later).

20.

An important point to appreciate is that commanding a force as large as KFOR requires a dynamic chain of command. UNSCR 1244 provided a clear statement of KFOR’s mission which we all followed. In putting this into action, we all had to respond to events as they happened in circumstances which were constantly evolving. My role as COMKFOR was to set the overall direction of travel for KFOR. In doing so, my aim was not to impose a centralised style of command, but to provide clear direction for separate but coordinated action. This allowed the MNB Commanders and those they commanded to apply their local knowledge of the sectors over which they had command to carry out KFOR’s tasks in UNSCR 1244 in their sectors based on the direction I set.”

In giving oral evidence, General Jackson expanded on the “dynamic” chain of command. He had daily contacts with UNMIK. He said that once UNSCR 1244 was in effect, “NATO became an agency of the UN putting into effect Resolution 1244”. The successive special representatives of the Secretary General, Sergio de Mello and Bernard Kouchner were the “civilian masters”. He met the special representative daily.

The biggest threat – “the wolf near the sled” – was the Kosovo Liberation Army [“KLA” or in its Albanian acronym “UCK”]. There had been widespread displacement of Kosovar civilians of Albanian origin who had fled under the last period of Serbian rule. They returned quickly in very large numbers and General Jackson accepted that there was clearly a threat from returning Kosovars to the remaining Serbian population. Kosovo had been run almost in a “colonial” fashion and resentment amongst the Kosovars was very high. Clearly after the departure of the forces of the FRY, the Serbian minority was vulnerable and General Jackson said “we went to considerable lengths to reduce that threat, sometimes to the extent of mounting “static guards” in order to protect vulnerable groups, Serb churches and monasteries. General Jackson said he had no evidence himself that the KLA institutionally were committing terrorist acts or had a policy of ethnic cleansing. However, elements of the KLA were out of control. They saw themselves as victims and thought as they returned that they had a “right of conquest”.

General Jackson rejected the suggestion made by counsel for the Claimants that KFOR and the KLA were allies. He said that was absurd. There were interests in common. NATO and the G8 wanted the Serbian rule to be removed and the KLA wanted the Serbs out of Kosovo. However, one of NATO’s main objectives was to prevent a humanitarian disaster. The KLA and returning Kosovars considered that they could have control of all the important positions in the country, and the KLA wished to be a standing army. That latter proposition was “anathema to the international community”. General Jackson had also to consider that there was a risk the Serbs might mount a counter-attack.

In the face of these risks and competing considerations, General Jackson said that he laid out in “stringent terms” what the KLA needed to do. There had to be demobilisation and demilitarisation. It was essential to remove the weapons so far as possible. He got an undertaking from the leadership of the KLA to that effect, within “an hour or two of the last Serb leaving”. The risks were high. If the western intervention did not get that aspect right, there could easily have been a Balkan war against KFOR.

In terms of liaison with the different groups, General Jackson had a number of meetings with Serbian contingents, but was assisted in the main by a Brigadier who was the liaison officer with the Serbs. General Jackson’s main effort from 20 June to 20 September, through frequent meetings with the KLA leadership, was to ensure that they adhered to the terms of their undertakings. This was not an alliance.

General Rollo was the officer commanding central MNB, reporting to General Jackson. He had three overall objectives at the beginning of the operation. Firstly, to get his brigade in and on the ground, secondly to close right up with the withdrawing Serb forces so as to ensure that they did withdraw and to avoid a vacuum which might be filled by the KLA. This was achieved by a staged series of movements as the Serbs withdrew, and as they withdrew his forces “established the best security we could”. He had the responsibility of securing the borders and of demilitarising the KLA. There were large numbers of displaced people returning, and there were threats, both from Serb paramilitaries and from the Albanian Kosovars. Thirdly, it was also part of his task to restore and maintain central services as best as possible. This involved such basics as the water supply to prevent disease.

Resolution 1244 mandated KFOR to attempt the restoration of law and order. General Rollo described something of the difficulty of this task for the troops. The law in question was “presumably Yugoslav law, but it was completely impractical”: there was no-one to tell the troops what it was. General Rollo described how his forces did the best they could “to apply modern standards or best practice according to domestic [meaning UK] practice”. It was “fundamentally common sense – we intervened if we saw something wrong”.

Both General Jackson and General Rollo emphasised the limited formal policing capacity within KFOR. The first UNMIK police capacity arrived in around July 1999 but there was a build-up after that before UNMIK could become effective. Before that KFOR had over 100 military police officers in MNB Centre as a whole. The majority of those were “normal military police”, used to dealing with offending by members of British forces, for the most part “low level crime”. About 20 of the officers were from the Special Investigation Branch [“SIB”] and they had the experience and training to investigate serious crime. However, as General Rollo made clear, supported in detail by Squadron Leader Quinn, this was a capacity far short of what would be necessary to “police Kosovo”, particularly in such a tense and fluid situation.

As General Jackson made clear, under the FRY government, the great preponderance of police officers, judges and others in positions of responsibility had been ethnic Serbs, and the majority of those had left before or alongside the Serb forces. To a great extent, the policing and justice systems had simply vanished.

As General Rollo described it, a similar pattern could be seen in the key utilities of water supply, drainage, power and media. One of General Rollo’s tasks was to try to get such institutions running, including such basic things as obtaining funds from the US and the UK to pay workers.

General Rollo described how KFOR did their best to provide security for civilians, and he accepted they did not succeed for everybody. There were a high number of murders, he thought between 120 and 180 murders in six weeks. The major spike of murders was in the first couple of weeks after the arrival of KFOR, at a time when the biggest military task was to get into Kosovo in the manner described, avoiding a vacuum and establishing what was happening on the ground. He sought for more troops from NATO command, and some Canadian and Scandinavian troops arrived. By August, the communal violence had peaked and there were more troops to cover the generality of his objectives.

The very high level of mayhem and disorder at the beginning did diminish as time went on. At the early phase, General Rollo said that the principal answer to the security problems did not lie in more military police but rather in ensuring the disarming of the KLA and in getting the systems for life going again. When he was asked if priority was placed on the investigation of murders, General Rollo’s answer was “we would investigate where we could”. But General Rollo emphasised the scale of the problem. The population movements into and out of Kosovo were the largest in Europe since World War II.

General Rollo was asked specifically about the Dardanije housing estate in Pristina, which had a high concentration of Serb residents. General Rollo told us that this was a huge estate in which troops were deliberately stationed, hoping:

“…both to deter or to catch those carrying out intimidation (grenades were the favoured weapon as they were easy to conceal and discard) and to provide some reassurance to the occupants.”

It was in this estate that the First Claimant’s husband was killed. When he was tasked with whether he could have done more in relation to this estate, General Rollo responded by asking “what more could have been done?”. There were very large numbers of people on the estate, it was not possible to imprison them or to fence them inside. Even if there had been much larger numbers of troops it would not in his view have altered the outcome: “what distinguished Kosovo was the level of aggression … [the Kosovars] were prepared to risk it”. He had not asked for more troops because he didn’t feel the situation warranted it and in any event more troops were arriving all the time.

I heard evidence from Major General Jeremy Rowan who, at the time of the hearing, was Director General of the Army Medical Services. In 1999, he was a Lieutenant Colonel and commanding officer of Second Armoured Field Ambulance Regiment, the close medical support regiment for the Fourth Armoured Brigade. He and his regiment travelled into Kosovo on 12 June, arriving in Pristina on 13 June. Major General Rowan confirms the picture of severe ethnic tension, large numbers of returning Kosovar Albanians and widespread dislocation of the infrastructure affecting power, sewage, transport and health provision. These problems manifested themselves particularly for Major General Rowan at the Pristina University Hospital.

The hospital was a massive complex with over a thousand beds. General Rowan emphasised the scale of the facility as being more than twice the capacity of the largest NHS hospital in England. It was set on the edge of the city, surrounded by waste ground.

Ethnic divisions were rife amongst the hospital staff. Virtually all managerial and senior staff had been ethnic Serbs, and many had gone. The tension was such that automatic weapons, rifles and grenades were commonly held by nursing and medical staff within the hospital, and General Rowan rapidly perceived there was a real risk of conflict inside the hospital. With the help of an UNMIK representative, he set up a liaison committee within a matter of days, with representatives from both sides, in an attempt at mediation. The objectives were to prevent internal violence, to remove the weaponry and prevent intimidation.

General Rowan was able to deploy 30 soldiers in and around the complex. He ensured a visible security presence from early after his arrival. Soon after his arrival there was a highly charged episode where hundreds of Albanian Kosovars massed outside the hospital, claiming to be displaced former employees and threatening the Serb staff. General Rowan confronted them in the company of four soldiers.

Pristina University Hospital is the major hospital in Kosovo. Setting aside the communal tensions and the missing personnel, there was severe disruption of this critical facility. Sewerage and water supplies were disrupted, with intermittent electricity. The mortuary staff had abandoned the facility and, since power was intermittent, the bodies were decomposing. General Rowan’s men had to remove them and bury them.

General Rowan told the Court that he had not expected to have to take charge of the hospital in this way. His evidence is helpful on the issue of whether KFOR had, or could be expected to have, “effective control of the area” of central Kosovo in the weeks after the arrival of KFOR.

The written evidence of Lieutenant Colonel Timothy Watton, combined with the statements and oral evidence from Warrant Officer Ian Pratt and Squadron Leader Anthony Quinn, provide a good picture of the policing capacity attached to KFOR. Lieutenant Colonel Watton was the Provost Marshal of BRITFOR and then the senior military policeman from BRITFOR on deployment to Kosovo as at 12/13 June 1999. Following his arrival in Macedonia before that deployment he states there were 63 military police available for deployment. He felt then that would not be enough. He called for reinforcements, including an attachment from SIB. Around 50 further military police arrived in theatre by about 20 June, bringing the numbers of police up to 113. Despite the reinforcement, Colonel Watton is clear this was “nowhere near enough to fill the gap left by the civilian police” who, having been overwhelmingly Serbian, were compelled to depart by the terms of the MTA. Colonel Watton describes how he set up police stations and arranged that one military police officer would be available for attachment to each patrol, lending their expertise to other troops, giving support and advice on apprehension of suspects, preservation of crime scenes and carrying out “more basic investigative tasks at crime scenes”.

Colonel Watton issued an operational order stipulating that where a civilian body who had “recently died in apparently suspicious circumstances” was found, SIB would be called to attend the scene and investigate.

Squadron Leader Quinn emphasises that the British military police officers were, at least to start with, the only police officers within MNB centre. According to his evidence, over the three months of his deployment in Pristina, British military police officers investigated more than 160 murders, 22 attempted murders, 6 rapes, 1 kidnapping, 3 bombings and three fatal traffic accidents. The volume of serious crime and the limitations on policing capacity meant that it was impossible to complete investigations in more than a very few cases.

Policing was (rather obviously) rendered more difficult by the conditions. It was only occasionally the case when any witness could be found to a killing. Usually what happened was that officers were directed to a body which had been found. A crime scene could be secured and evidence recorded. The capacity to mount serious questioning was limited by the language barrier, and it is clear that witnesses were, in any event, often reluctant to speak and were in fear.

It is clear that these military police witnesses saw their task as being primarily to obtain and preserve as much evidence of serious crime as they could, so that in due course investigations could be conducted by the UNMIK police capacity, which began to arrive in July and August. The use of UK military police officers for civilian policing matters came to an end in September.

I will return to some of the evidence from these witnesses, bearing on the individual deceased and/or missing, later in this judgment.

It is not appropriate for me at this stage to do more than summarise the facts in each case.

Zoran Kontic, the late husband of the first Claimant, was born in 1953 and became an engineer. The couple had three children. At the relevant period, Mr Kontic was employed in the power plant “Kosovo A, Obilic”, as a production general manager. In the course of the NATO bombing, the couple took their children to safety but the First Claimant and her husband returned to Pristina. According to the First Claimant’s witness statement, there were a number of episodes of threat to the couple’s neighbours in their block of flats on the Dardanije Estate. The flats were opposite a KFOR base. At one point in late June 1999, men had been banging on the couple’s door and shouting at them to get out. A particular neighbour was held up at gunpoint and forced to leave. Dr Kontic believes the threats of attacks on her family and her neighbours, were symptomatic of the general position for Serb residents of the estate. They went to the KFOR base and asked for help. They were given shelter there, but according to Dr Kontic there was no decisive intervention with what was happening on the estate. On 1 July 1999, she and her husband left Kosovo due to threats, but Mr Kontic was told by his boss to return to the plant because “British troops required assistance in restarting the power plant”. Mr Kontic returned to Pristina, despite the protests of his family.

On 5 July 1999, Mr Kontic was stabbed to death in the family home. When his body was collected the following day from hospital, he was in his underclothes and handcuffed. The First Claimant says she was given no information from the authorities. Her case is that she learned through her own enquiries that Mr Kontic had named his attackers, two Albanian workers at the power plant. It is the Claimant’s case that it was on 1 August 2013 that she was provided with documents from the Defendant showing that her husband had been stabbed to death by the two identified individuals.

In the course of the hearing the Defendant clarified the position in relation to documents. There was a Royal Military Police investigation file into the death of Mr Kontic, dated 7 July 1999. That was provided to the Claimant’s solicitors on 1 August 2013. A situation report from within KFOR relating to the Kontic incident, dated 5 July 1999, was exhibited to General Rollo’s statement and therefore served on 4 March 2016. There was an apparent reference to Mr Kontic in a military logbook which was disclosed in April 2016.

At the end of the hearing before me, leading counsel for the Claimants indicated that the Claimant had in fact had a copy of the RMP investigation file relating to Mr Kontic, received from The European Union Rule of Law Mission to Kosovo [“EULEX”]. That document was provided on the evening of 25 May 2016. The Defendant relies upon it as showing that EULEX had in fact had the RMP file, together with accompanying investigative material from UNMIK. It appears that the documents, including the RMP documents, had been translated into Albanian.

These additional documents show that on 22 September 1999, UNMIK made a list of steps to be taken in the case, including an attempt to trace the two named individuals. On 8 October 1999, UNMIK representatives visited the scene of the crime but could not trace Mr Kontic’s relatives. They also attended the Obilic power plant. Employee records revealed more than one person called “Ramon” and “Uka”, the names of the individuals recorded. UNMIK recommended that the file should be closed unless fresh evidence came to light. On 30 April 2000, UNMIK spoke to a witness about the case. On 10 December 2001, UNMIK spoke to the First Claimant and the case was reopened at around that time. In 2001, further steps were taken to trace Ramon and Uka. These steps, says the Defendant, carried forward the investigation commenced by British KFOR and would not have been possible but for the scene of crime investigation undertaken by RMP representatives attached to KFOR.

The Second Claimant was the wife of Dimitrije Milenkovic. They had four children including a son, Aleksandar, who was born in May 1984. The family lived in the village of Mazgit. Mr Milenkovic had been a coalminer, and during 1999 was mobilised into the Serbian military as a reservist. On 6 May 1999, Aleksandar Milenkovic became 16 years of age.

On 16 June 1999, four days after the deployment of KFOR, Mr Milenkovic and Aleksandar Milenkovic were abducted, along with other Serbian men in Obilic. The Second Claimant went that evening to speak to British troops based at the police station in Obilic and asked about her family members. Her account is that at that stage she was told by KFOR troops that the men were alive and detained by KFOR and would be released the next day. However, some days later she with others attended the local authority building nearby, and was confronted by images of dead men. The Second Claimant identified her husband and her son. They had both been shot in the company of other local men.

The Second Claimant’s family left for Serbia on 27 June. After leaving Kosovo, they did not know who to contact for any more information about the deaths.

The Defendant has located the RMP file on these deaths, dated 21 June 1999. That was provided to the Claimants as an exhibit to Squadron Leader Quinn’s witness statement in March 2016. However, the Claimants it seems already had a copy, provided from the EULEX file. The documentation coming from EULEX included additional documents from UNMIK police, including reports dated 1 October and 4 October 1999. The UNMIK police investigator had the SIB file from the KFOR investigation and there had been a conversation between the UNMIK police investigator and SIB staff. One of the UNMIK documents records in direct terms “this case was handed over by British KFOR, military police”.

The Third Claimant’s husband was an ethnic Serb, although born in Dubrovnik in Croatia in 1936. He was a medical doctor. The couple married in 1967 and had two children, by which time the family were living in Pristina. Dr Tomanovic was a distinguished surgeon, decorated for his contribution to the Red Cross. Throughout the period of NATO bombing he continued to work at the Pristina hospital, providing medical treatment to all.

On 17 June 1999, the Third Claimant travelled to Belgrade. It is the Third Claimant’s case that she spoke to her husband daily from Belgrade to hear of the conditions in Kosovo, and clearly she was concerned as to his safety. He had taken the view that it was his duty to stay behind and continue to work at the hospital.

Mrs Tomanovic’s witness statement continues as follows:

“37.

I asked him to join us in Belgrade, but he said he would be alright, that he had received a guarantee from a general and mentioned the name Jeremy, who I now know is Major General Jeremy Rowan.”

Mrs Tomanovic records that her husband had phoned her on the morning of 24 June 1999. There was widespread looting and crime which had kept him awake. He left home at 5:00am to get to hospital early and phoned at 6:00am. Her understanding is there was an emergency meeting at 10:00am that day, planned for the Serb doctors, professors and other personnel at the hospital and university. They had apparently taken a decision to leave Pristina following the previous night’s troubles. Mrs Tomanovic did not speak to her husband again. The evidence suggests that her husband was abducted around 1:00pm on 24 June at the entrance to the hospital. She suggests this was “in broad daylight in front of British soldiers, they must have seen something because later I heard that a woman had passed him in the street while he was being manhandled into a car”.

On the day of his disappearance, Dr Tomanovic had called the couple’s daughter at around 1:00pm to say that he was on his way home. That appears to be the last contact with the family. Mrs Tomanovic describes how she called the hospital the following morning and was transferred to Jeremy Rowan. She explained that her husband had not come home after his shift at the hospital and enquired whether his whereabouts were known. On her account, Colonel Rowan (as he was) repeated several times that he didn’t know anything about what had happened.

Mrs Tomanovic attempted persistently to investigate what had happened through “all the international and other bodies” which she thought might be able to help. Serbian police opened an investigation and in the course of that investigation there was a report that her husband was seen as late as January 2000 in a different village in Kosovo.

Major General Rowan confirms that he knew Dr Tomanovic, who was a senior Serb figure in the hospital. He also knew him to be a prominent and influential person within the Serb community generally. He told me he had a high regard for Dr Tomanovic. Major General Rowan rejects the suggestion that he had given any assurances of safety to Dr Tomanovic, and he further rejects the suggestion that the abduction took place in the presence of British soldiers. There is no direct evidence of the latter. On a visit to Belgrade at considerable time later, it was suggested that General Rowan had expressed remorse to a priest for promising protection for Dr Tomanovic. He rejected that then, and rejected it firmly in evidence. This point was not further explored as it was not critical for the preliminary issues.

Dr Tomanovic’s body has never been found and his case must, even at this remove, be regarded as a possible disappearance rather than a confirmed homicide.

Various documents have been located by the Defendant relating to this. The RMP file which was created is dated 26 June 1999, in other words the day of the disappearance. This was served as an exhibit to Squadron Leader Quinn’s statement. Major General Rowan annexed a poster about the search for Dr Tomanovic to his witness statement. That, too, was served in March 2016. Extracts from KFOR log book and emails were disclosed to Mrs Tomanovic, following a freedom of information request in July 2013. This material demonstrates that it was simply uncertain as to whether and how Dr Tomanovic was abducted. A NATO document, giving some information about the case, was sent in April 2016 to the Claimants. There is a complaint from the Claimants that the full RMP file was not handed over immediately. The explanation given is that there was an objection to disclosure by the European Union Special Investigative Task Force [“SITF”].

There is no clear, single pleading by the Claimants as to which subsequent investigations or review of events are said to be of importance. UNMIK had established a Central Criminal Investigation Unit by at least 1 October 1999. A Missing Persons Unit (MPU) was established by November 1999, and later a War Crimes Investigation Unit (WCIU).

EULEX took over certain functions from UNMIK at the end of 2008.

In 2008, the former chief prosecutor before the International Criminal Tribunal of the former Yugoslavia [“ICTY”], Madam Carla Del Ponte, published a set of memoirs. These revealed atrocities by KLA members including, it was suggested, trafficking in human organs. Madam Del Ponte also painted a picture of inadequate follow-up investigations to the deaths and abductions which had taken place.

In October 2009, a Human Rights Review Panel was established to consider complaints relating to human rights violations by EULEX.

As a consequence of the Del Ponte memoirs, the European Parliament Committee on Legal Affairs and Human Rights appointed Swiss Senator Dick Marty as a Rapporteur to investigate and draw up a report. In the introductory remarks to that report, published in December 2010, Senator Marty noted the scale of the humanitarian problems coming from this conflict. The International Committee of the Red Cross opened files on more than 6,000 disappearances. Approximately 1,400 individuals have been found alive and 2,500 corpses found and identified. Most of these were Albanian Kosovar victims found in mass graves in regions under Serbian control.

Senator Marty characterised the events of the summer of 1999 as follows:

“4.

The acts with which we are presently concerned are alleged to have occurred for the most part from the summer of 1999 onwards against a background of great confusion throughout the region. The Serbian security forces had abandoned Kosovo, and the troops of KFOR (NATO’s international Kosovo Stabilisation Force) were making a rather slow start in establishing themselves; while tens of thousands of Kosovar Albanian refugees were originally trying to reach Albania and then to return home, with ethnic Serbs in turn seeking refuge in the territories controlled by the Serbian Army. It was chaos: there was no functioning administration on the part of the Kosovars, and KFOR took quite some time to gain control of the situation, evidently not possessing the know-how needed to cope with such extreme situations. The NATO intervention had essentially taken the form of an aerial campaign, with bombing in Kosovo and in Serbia – operations thought by some to have infringed international law, as they were not authorised by the UN Security Council – while on the ground NATO’s de facto ally was the KLA. Thus, during the critical period that is the focus of our inquiry, the KLA had effective control over an expansive territorial area, encompassing Kosovo as well as some of the border regions in the north of Albania. KLA control should not be understood as a structured exercise of power, and it was certainly far from assuming the contours of a state. It was in the course of this critical period that numerous crimes were committed both against Serbs who had stayed in the region and against Kosovar Albanians suspected of having been “traitors” or “collaborators”, or who fell victim to internal rivalries within the KLA. These crimes have largely gone unpunished and it is only years later that a rather diffident start has been made in dealing with them.”

The report goes on to be highly critical of UNMIK in its investigative capacity and to describe the task facing the EU’s EULEX mission, operational since the end of 2008, as an extremely difficult situation in investigating the unresolved disappearances and deaths.

One specific suggestion made by Senator Marty is encapsulated in a footnote to the introductory remarks:

“We learned that certain KFOR contributors (for example the United Kingdom) took all their records away with them and that these records were subsequently made accessible to EULEX investigators only on the basis of reasoned case by case applications, a complex procedure which considerably slows down the work of justice.”

It is not appropriate for me, on the basis of the limited evidence before me, to attempt a definitive analysis of whether such criticism of KFOR is justified. I merely state for present purposes that there is significant evidence, both from the live witnesses who gave evidence before me (in particular Squadron Leader Quinn) and from the documentary evidence that files were routinely handed over to UNMIK investigators, with copies of some of the most easily stored and transferrable material being kept by KFOR.

In 2011 a Special Investigative Task Force [“SITF”] was established, attached to EULEX, to conduct criminal investigations into the matters raised by the report of Senator Marty. It appears they remain active.

The evidence from the Defendant’s witnesses suggests that, under very great pressure, a notable effort was made to preserve evidence, investigate so far as practicable, and ensure that the UNMIK police were given all the information about the steps taken, in proper useable form.

There appears to be no evidence that Senator Marty’s investigation made direct contact with the Defendant, or with those who had been KFOR military police. The suggestion of poor handover by KFOR to UNMIK, it appears, was sourced from UNMIK rather than from the UK investigators in theatre or from the Defendant. It does not seem that Senator Marty looked in detail at what was passed on from KFOR police to UNMIK. This could not be explored further in the preliminary issues hearing.

The Grand Chamber of the European Court of Human Rights has considered the question of attribution of action by KFOR. In Behrami and Saramati v France and Norway (2007) 45 EHRR SE10, two cases derived from the conflict in Kosovo were considered. A summary of the facts is helpful when considering the conclusions in this case, to facilitate comparison with subsequent cases concerning Iraq and Afghanistan.

Mr Behrami had two sons who were playing with undetonated NATO cluster bombs. One of the children threw a cluster bomb in the air: it detonated, killing one of Mr Behrami’s sons and blinding the other. In April 2001, Mr Saramati was arrested by UNMIK police on suspicion of attempted murder. He was detained for some weeks, before being released by the Supreme Court of Kosovo. He was detained once more in July by UNMIK police officers on the orders of the Commander of KFOR, by then a Norwegian general. He was then detained until late 2002, when he succeeded in quashing his conviction. At successive hearings from September 2001 to January 2002, courts held, in the light of the Kosovan Supreme Court ruling, that his detention was at the hands of KFOR.

The Court next considered whether the relevant actions or omissions were attributable to the UN. The Court:

“… used the term “attribution” in the same way as the ILC [International Law Commission] in Article 3 of its draft Articles on the Responsibility of International Organisations.”

The Court noted that UNSCR 1244 (paragraphs 4 and 9 of Annex 2) and the later COMKFOR Detention Directive 42 made it clear that issuing detention orders was within KFOR’s security mandate from the UN.

The Court reached the clear view that those KFOR actions which were within their security remit were attributable to the UN. The core reasoning is set out as follows:

“129.

… In particular, that Resolution 1244 authorised “Member States and relevant international organisations” to establish the international security presence in Kosovo as set out in point 4 of Annex 2 to the Resolution, with all necessary means to fulfil its responsibilities listed in Art. 9. Point 4 of Annex 2 added that the security presence would have “substantial [NATO] participation” and had to be deployed under “unified command and control”. The UNSC was thereby delegating to willing organisations and Member States (see para. 43 as regards the meaning of the term “delegation” and para. 24 as regards the voluntary nature of this State contribution) the power to establish an international security presence as well as its operational command. Troops in that force would operate therefore on the basis of UN delegated, and not direct, command.

…

135.

Accordingly, UNSC Resolution 1244 gave rise to the following chain of command in the present cases. The UNSC was to retain ultimate authority and control over the security mission and it delegated to NATO (in consultation with non-NATO member states) the power to establish, as well as the operational command of, the international presence, KFOR. NATO fulfilled its command mission via a chain of command (from the NAC, to SHAPE, to SACEUR, to CIC South) to COMKFOR, the commander of KFOR. While the MNBs were commanded by an officer from a lead TCN, the latter was under the direct command of COMKFOR. MNB action was to be taken according to an operational plan devised by NATO and operated by COMKFOR in the name of KFOR.”

The Applicants in Behrami and Saramati argued that the level of TCN control over KFOR troops was such that “it detached troops from the international mandate and undermined the unity of operational command”. However the Court rejected that argument. The Court recognised that the TCNs retained some authority over the troops, for reasons of safety, discipline and accountability. NATO’s command was, however, “effective” (paragraphs 138 and 139). TCN involvement was not incompatible with the effectiveness, including the unity, of NATO’s command (paragraph 139). Nor did any:

“…actual TCN orders concerning or interference in, the present operational …. matter. There was no reason to consider that the TCN structural involvement … undermined the effectiveness of NATO’s operational control” (paragraph 139).

The Court also found that the UN Special Representative:

“…retained ultimate authority and control and that effective command of the relevant operational matters was retained by NATO” (paragraph 140).

In those circumstances the Court concluded that:

“KFOR was exercising lawfully delegated Ch. VII powers of the UNSC so that the impugned action was, in principle, “attributable” to the UN within the meaning of the word outlined at paragraphs 29 and 121 above” (paragraph 141).

As I have noted, the ECtHR looked to the draft Articles on the Responsibility of International Organisations [“DARIO”] prepared by the International Law Commission. The draft Articles available to the ECtHR in 2007 were those of 2004, which were subsequently adapted by the ILC in 2011. However, Article 5 of the 2004 draft became (without alteration) Article 7 of the 2011 version, and the text reads:

“Article 5 [7]

Conduct of organs of a State or organs or agents of an international organization placed at the disposal of another international organization

The conduct of an organ of a State or an organ or agent of an international organization that is placed at the disposal of another international organization shall be considered under international law an act of the latter organization if the organization exercises effective control over that conduct.”

I return below to the attack on Behrami and Saramati and the commentary on DARIO Article 7. However, the result of Behrami and Saramati was an unequivocal attribution of the actions (or inactions) of KFOR to the United Nations. As a consequence the ECtHR found that, since the actions of KFOR were “directly attributable to the UN, an organization of universal jurisdiction fulfilling its imperative collective security objective” (paragraph 152), and not a party to the European Convention, the ECtHR was not competent ratione personae to review UN actions.

It is common ground in the instant case that, if the actions or omissions here are attributable to the UN, the actions against this Defendant fail.

Later in 2007, the House of Lords came to consider the decision of the ECtHR in Behrami and Saramati in the course of their decision in R (Al-Jedda) v Secretary of State for Defence [2008] 1 AC 332. The House was considering the case of the actions of British forces in Iraq, forming part of a multinational force, acting under the authority of UNSCR 1546. The factual basis was detention by British forces in Iraq. The Claimant Appellant argued that the actions of British forces in Iraq were attributable to the United Kingdom, because they were not carried out under the effective control of the United Nations Security Council. The Defendant argued that the detention of the Claimant was attributable to the United Nations, following Behrami and Saramati.

In the leading speech, Lord Bingham of Cornhill addressed attributability as the first issue. He took it as common ground that the governing principle was that set out in the draft Article from the ILC as cited before the European Court in Behrami and Saramati, and the question was whether the UN exercised “effective control” over the conduct (in this instance) of UK forces in Iraq: see paragraph 5.

Lord Bingham analysed the decision in Behrami and Saramati. In paragraphs 22 and following, he engaged in a comparison of the factual position in Iraq with that identified by the European Court in Kosovo. In paragraph 24 he set out his conclusion thus:

“The analogy with the situation in Kosovo breaks down, in my opinion, at almost every point. The international security and civil presences in Kosovo were established at the express behest of the UN and operated under its auspices, with UNMIK a subsidiary organ of the UN. The multinational force in Iraq was not established at the behest of the UN, was not mandated to operate under UN auspices and was not a subsidiary organ of the UN. There was no delegation of UN power in Iraq. It is quite true that duties to report were imposed in Iraq as in Kosovo. But the UN’s proper concern for the protection of human rights and observance of humanitarian law called for no less, and it is one thing to receive reports, another to exercise effective command and control. It does not seem to me significant that in each case the UN reserved power to revoke its authority, since it could clearly do so whether or not it reserved power to do so.”

On that basis, and emphasising the contrast between Iraq and Kosovo, Lord Bingham found against the Secretary of State and in favour of attributability to the United Kingdom. He emphasised his conclusions as to Kosovo in paragraph 33, saying that in relation to Kosovo “the operations were very clearly conducted under UN auspices”.

When the same issue was approached by Lord Rodger of Earlsferry in Al-Jedda, he observed that the European Court “paid particular attention to the legal basis on which the members of KFOR were operating” (paragraph 58) and emphasised the “obvious difference” between the factual position in Kosovo and the factual position in Iraq, emphasising that:

“The forces making up KFOR went into Kosovo, for the first time, as members of KFOR and in terms of Security Council Resolution 1244.” (paragraph 59)

In later passages, Lord Rodger explicitly accepted the approach of the Grand Chamber of ECtHR in Behrami and Saramati. Following the logic of that decision as applied to the situation in Iraq, Lord Rodger would himself have allowed the appeal.

Baroness Hale, who joined Lord Bingham in the majority, nevertheless did so on the basis of the clear distinction between the situations in Kosovo and Iraq, and in particular in relation to attributability: see paragraph 124. Lord Carswell too agreed with Lord Bingham on the issue of attributability and on the distinction between Kosovo and Iraq.

Lord Browne expressed his view of the difficulty of the issue of attribution in paragraphs 141-149, however his doubts arose from the application of the approach in Behrami and Saramati to the facts in Iraq. He expressed no doubt about the approach of the Grand Chamber in Behrami and Saramati.

It follows that, despite differing views on the outcome in the context of Iraq, the speeches in the House of Lords in Al-Jedda represent clear approval of the approach of the European Court and their conclusion as to the issue of attributability of the actions of KFOR to the UN.

When the Al-Jedda case came to the ECtHR as Al-Jedda v United Kingdom (2011) 53 EHRR 23, the Grand Chamber reached conclusions as to the attributability of the acts of the multinational forces in Iraq, consistently with the majority in the House of Lords. They followed the approach taken in Behrami and Saramati. The judgment of the Grand Chamber contained extensive quotation from the speeches in Al-Jedda in the House of Lords, and in paragraphs 83 and 86, the ECtHR approved of the approach and decision of the majority of the House of Lords, in following Behrami and Saramati. A critical part of their reasoning, drawn from Behrami and Saramati and traced through Al-Jedda in the House of Lords, was the re-stated application of Article 5 (subsequently 7) of DARIO.

At no point since the decision in Behrami and Saramati, has the ECtHR expressed disapproval or variation of the approach in that case.

In the recent case of Serdar Mohammed and Others v Secretary of State for Defence [2015] EWCA Civ 843, attributability was considered in the context of detention in Afghanistan. The Claimants here were Afghan citizens, arrested and detained for some months in Afghanistan by UK armed forces, acting as part of the International Security Assistance Force [“ISAF”], a multinational force established by resolution of the UN Security Council and under NATO command to assist the Afghan government in the maintenance of security. In relation to attribution, Leggatt J in Serdar Mohammed concluded:

“The United Nations Security Council had effective control (and ultimate authority and control) over ISAF in the sense required to enable conduct of ISAF to be attributed to the UN.”

After reviewing Behrami and Saramati, Al-Jedda in the House of Lords, and Al-Jedda in Strasbourg, the Court of Appeal supported the approach in Behrami and Saramati and its application by Leggatt J on attributability (see paragraphs 52-65). Although the outcome was different for reasons which are not material, both Leggatt J at first instance and the Court of Appeal emphasised the importance of the command structure in determining the question of effective control.

I was informed in the course of the hearing that “part of” the decision in Serdar Mohammed is to be heard on appeal before the Supreme Court later in 2016. It is not clear whether the question of attributability will be a point in that appeal. However that may be, as the preceding paragraphs demonstrate, there is an overwhelming body of authority supporting the approach taken in Behrami and Saramati and its application to KFOR.

There is no evidence before me bearing on the KFOR command structure or the line of command through to the United Nations which alters the picture as it was before the ECtHR when Behrami and Saramati was heard.

The Claimants’ bold submission is that Behrami and Saramati is wrong in its approach and I should decline to follow it.

The Claimants submit that KFOR was not a UN entity or creation. They say that UNSCR 1244 demonstrates a clear structural distinction between UNMIK and KFOR. The UN Secretary General was authorised to establish UNMIK, which was placed under the authority of the Secretary General and headed by a Deputy Secretary General. KFOR was not. The Claimants submit that Resolution 1244 authorised “Member States and relevant international organisations” to establish KFOR. They submit that KFOR’s legal status was established by the MTA, rather than the Resolution. They argue that within the terms of Resolution 1244 there is no mention that the acts or omissions of KFOR were attributable to the UN. They submit that:

“”KFOR was not acting under direct UN command … KFOR was a multinational force established … by agreement between the TCNs, FRY and Serbia which was subsequently authorised by UNSCR 1244.”

The Claimants summarise their grounds for suggesting that Behrami and Saramati is wrongly decided as follows. Firstly, the UN did not have effective control over KFOR: effective control was with the UK. UNSCR 1244 conferred responsibility on KFOR to ensure public safety and order (Article 9(d)) at the material time between 16 June and 5 July 1999, and during that period UNMIK had not as yet established a local police force. Command and control of KFOR was however not direct to the United Nations but was more nuanced and complicated. The Claimants rely on the directives and orders issued by Commander KFOR and KFOR to British troops, which were detailed instructions, including on policing matters, and not contained in or derived directly from UNSCR 1244.

Next, the Claimants say that the UK retained control over its own contingent in day to day operations in respect of policing and ensuring a safe environment, including protection against and investigation of crime. The RMP were part of KFOR and carried out policing and investigative functions in the absence of any functioning domestic police force, and before any international policing function to be set up by UNMIK. Next, the evidence reveals, or suggests, a flexibility of command and discretion conferred on the officers of the lead TCNs by Commander KFOR in relation to policing functions, for which the Claimants rely upon the evidence of Generals Jackson and Rollo. Those are in summary the critical factual aspects upon which the Claimants rely.

The Claimants also rely upon what they submit to be widespread criticism of the Behrami and Saramati decision. The Claimants rely firstly upon the commentary by the International Law Commission in 2011 on DARIO. The ILC addressed what was by then Article 7. For convenience, I repeat the wording:

“The conduct of an organ of a State or an organ or agent of an international organization that is placed at the disposal of another international organization shall be considered under international law an act of the latter organization if the organization exercises effective control over that conduct.”

The ILC commentary began by focussing on the question when an organ is “fully seconded” to the latter organisation, in which case the conduct is clearly attributable to the “receiving organisation”.

It is said that Article 7 deals with the different situation:

“…in which the seconded organ or agent still acts to a certain extent as organ of the seconding state or as an organ or agent of the seconding organisation.”

This occurs, for instance, in the case of military contingents that a State places at the disposal of the United Nations for a peacekeeping operation, since the State retains disciplinary powers and criminal jurisdiction over the members of the national contingent. In this situation the problem arises as to specific conduct of the seconded organ or agent, and whether that is to be attributed to the receiving organisation or to the seconding state or organisation.

The commentary continues:

“4.

The criterion for attribution of conduct either to the contributing State or organization or to the receiving organization is based according to article 7 on the factual control that is exercised over the specific conduct taken by the organ or agent placed at the receiving organization’s disposal. As was noted in the comment by one State, account needs to be taken of the “full factual circumstances and particular context”. Article 6 of the articles on the responsibility of States for internationally wrongful acts takes a similar approach, although it is differently worded. According to the latter article, what is relevant is that “the organ is acting in the exercise of elements of the governmental authority of the State at whose disposal it is placed”. However, the commentary on article 6 on the responsibility of States for internationally wrongful acts explains that, for conduct to be attributed to the receiving State, it must be “under its exclusive direction and control, rather than on instructions from the sending State”. At any event, the wording of article 6 cannot be replicated here, because the reference to “the exercise of elements of governmental authority” is unsuitable to international organizations.

5.

With regard to States, the existence of control has been mainly discussed in relation to the question whether conduct of persons or of groups of persons, especially irregular armed forces, is attributable to a State. In the context of the placing of an organ or agent at the disposal of an international organization, control plays a different role. It does not concern the issue whether a certain conduct is attributable at all to a State or an international organization, but rather to which entity – the contributing State or organization or the receiving organization – conduct has to be attributed.”

The commentary continues:

“Attribution of conduct to the contributing State is clearly linked with the retention of some powers by that State over its national contingent and thus on the control that the State possesses in the relevant respect … As has been held by several scholars, when an organ or agent is placed at the disposal of an international organisation, the decisive question in relation to the attribution of a given conduct appears to be who has effective control over the conduct in question.” (Paragraphs 7 and 8)

The Commission then addressed directly the decision in Behrami and Saramati. Noting that the ECtHR had referred to the work of the ILC and in particular to the criterion of “effective control” the ILC went on to state:

“One may note that, when applying the criterion of effective control, “operational” control would seem more significant than “ultimate” control, since the latter hardly implies a role in the act in question. It is therefore not surprising that in his report of June 2008 on the United Nations Interim Administration Mission in Kosovo, the United Nations Secretary General distanced himself from the latter criterion [ultimate control] and stated:

“It is understood that the international responsibility of the United Nations will be limited in the extent of its effective operational control”” (Commentary paragraph 10)

The Commission went on to consider further decisions of the ECtHR in Kasumij v Greece (2007) (No 69744/05) and Gajic v Germany (2007) (No 31446/02), and Beric and Others v Bosnia and Herzegovinian (2007) (Nos 36357/04 and others). The ILC noted that the reasoning in those cases followed that in Behrami and Saramati.

The ILC addressed the decision of the House of Lords in Al-Jedda, noting that the majority opinions “appeared to endorse the views expressed” by the ECtHR in Behrami and Saramati, but distinguished the facts in relation to Iraq. The Commission’s view was “this [latter] conclusion appears to be in line with the way in which the criterion of effective control was intended”. The Commission went on to note the decisions in Al-Jedda v United Kingdom in Strasbourg and noted the Court’s conclusion that the applicant’s detention fell to be attributed to the Respondent State, not the UN.

The draft Articles and Commentary from the ILC are deserving of respect. However, as the Defendant points out, none of these provisions constitute a treaty, nor do they constitute customary international law. The UN General Assembly “took note” of the DARIO and “commended” them on 9 December 2011 “without prejudice to the question of their future adoption”. A similar formulation was expressed by the General Assembly in 2014.

I pay regard to this material in exactly that manner.

The Claimants also rely on a range of academic criticism of the Behrami and Saramati case. I do not intend to set out this learning at any length. The Claimants rely upon a passage from State Responsibility: the General Part (2013) by Professor Crawford, who attacks the reasoning of the Grand Chamber in Behrami and Saramati as follows:

“Rather than asking which international organization or state retained effective control of KFOR, the Chamber seemed to employ more formalistic criteria to determine responsibility, asking whether the Security Council “retained ultimate authority and control so that operational command only was delegated”. By reference to SC Resolution 1244, it determined that, notwithstanding “the effectiveness or unity of NATO command in operational matters” concerning KFOR, the fact that KFOR was present in Kosovo under Security Council authorization was more material; put another way, “KFOR was exercising lawfully delegated Chapter VII powers of the [Security Council] so that the impugned action was, in principle, “attributable” to the UN.

Behrami and Saramati has been the subject of considerable criticism, especially for the Grand Chamber’s failure adequately to take into account the precise relationship between the UN and NATO, despite finding expressly that the latter possessed effective operational control of the force in question, a point which the ILC had described as “hardly controversial”. At a more fundamental level, the judgment treats this form of attribution to all intents and purposes as an aspect of the law of international organizations, conflating thereby the primary norms of that system with the secondary rules of responsibility. This was accomplished via reference to a published analysis of the implications of delegation of Chapter VII power by the Security Council, developed before the ILC had commenced its work on the responsibility of international organizations …

But the decision also contains some unsettling policy implications. Although it may be seen as concerning relationships of responsibility as between two international organizations, there is no reason to think that it would be applied any differently to a relationship between an international organization and a state. If so, then a state can avoid all responsibility for the actions of its forces simply by creating an international organization and ensuring that it retains “ultimate authority and control” for any operations carried out under its aegis.” (State Responsibility 2013, pages 197/8)

The Claimants rely on similar criticism from Mr Milanovic and Ms Papic in the International Comparative Law Quarterly (2009) 2 ICLQ 58, from Dr G Verdirame in The UN and Human Rights: Who Guards the Guardians [2011] CUP, page 108 and following. The essence of these criticisms is to the effect that the ECtHR misread Article 5/7 of DARIO, overstating the importance of the fact that KFOR was called into existence by Resolution 1244 and, crucially, misreading the test of “effective control” which should be read as something more akin to “effective control over the specific conduct in question”.

The Defendant’s reply is to reject the substance of criticism of Behrami and Saramati, and to rely on the weight of authority represented by that decision and the European and English decisions which have followed it. The Defendant relies on Section 2 of the Human Rights Act 1998. The Claimants submit the section has in truth no application to this case. I must therefore digress to consider that point.

The relevant parts of the Section read:

“2 – Interpretation of Convention rights

(1)

A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any –

(a)

judgment, decision, declaration or advisory opinion of the European Court of Human rights,

…

Whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.”

It is of course trite law that, where Section 2(1) applies, English courts are not formally bound by the decisions of the ECtHR, even those reached by the Grand Chamber. Equally, the wording of the statute means that such decisions carry the very greatest weight, see: SSHD v AF (No. 3) [2010] 2 AC 269, R v Horncastle [2010] 2 AC 373, Manchester City Council v Pinnock (No. 2) [2011] 2 AC 104, and R (on the application of Chester) v Secretary of State for Justice [2014] AC 271.

In Manchester v Pinnock, Lord Neuberger summarised the position in paragraph 48 in the following terms:

“As Lord Mance pointed out in Doherty v Birmingham [2009] 1 AC 367, para 126, section 2 of the HRA requires our courts to "take into account" EurCtHR decisions, not necessarily to follow them. Where, however, there is a clear and constant line of decisions whose effect is not inconsistent with some fundamental substantive or procedural aspect of our law, and whose reasoning does not appear to overlook or misunderstand some argument or point of principle, we consider that it would be wrong for this Court not to follow that line.”

In answer to this, the Claimants seek to make an interesting distinction. Reverting to the language in Section 2(1), they have in effect focussed on the phrase giving rise to the duty to take Strasbourg decisions into account, the phrase being “determining a question which has arisen in connection with a Convention right”. The Claimants argue that the international law governing the question of attributability is not a question of interpretation of the European Convention on Human Rights, or indeed a question which arises from a Convention Right. The point at issue arises wholly separately from the Convention. No doubt Ms Brimelow QC would say the point would be identical were troops to be deployed in the name or under the auspices of the United Nations where no party could possibly invoke the Convention. The point is a question of international law not caught by Section 2(1), and in respect of which the English court is fully free to differ from Strasbourg. Ms Brimelow referred to the judgment of Lord Sumption JSC in the Chester case at paragraph 121 when he stated that:

“A decision of the European Court of Human Rights is more than an opinion about the meaning of the Convention. It is an adjudication by the tribunal which the United Kingdom has by treaty agreed should give definitive rulings on the subject. The courts are therefore bound to treat them as the authoritative expositions of the Convention which the Convention intends them to be, unless it is apparent that it has misunderstood or overlooked some significant feature of English law or practice which may, when properly explained, lead to the decision being reviewed by the Strasbourg Court.”

It is intriguing to note that none of the cases bearing on the approach to Section 2(1) of the Act addresses the question raised by the Claimants, no doubt because all the cases have turned on questions which evidently were interpretation of the Convention or its application.

The Defendant’s reply is to emphasise that Behrami and Saramati is a Grand Chamber decision, not simply a Chamber decision. It is a decision on “the very issue and the very legal structures that are in issue here”. The restatement or support for the decision in Behrami and Saramati is extremely weighty and there is no question of “cutting across any principle of UK law fundamental or otherwise”, to echo the formulation of Lord Mance in Horncastle. Mr Eadie argues that the reasoning in Behrami and Saramati is “a clear interpretation of attribution for the purposes of the ECHR”. However, he does not meet head on the proposition that this is not a question of interpretation of a Convention Right.

How far can it be considered “a question which has arisen in connection with a Convention Right”?

The pleaded causes of action in this case consist of alleged breaches of Articles 2, 3, 8 and 13 of the European Convention. The remaining part of the case is framed in terms of a breach of the law applying to Kosovo, either by the incorporation into domestic Kosovan law of a range of international conventions, or as breaches of the Yugoslav/Serbian Law of Contract and Torts, the codification of which is pleaded by the Defendant.

It appears to me that the decision on attributability in Behrami and Saramati is “a question which has arisen in connection with (emphasis added) the Convention Right” insofar as it bears on claims pleaded as breaches of the Convention. The wording of the Statute is rather wider than interpretation of the Convention itself, and no doubt deliberately so. In short, it appears to me that Section 2(1) of the 1998 Act applies with full force to the Convention claims, although not to those arising from Kosovan Law. Should such a differential application of Section 2(1) of the 1998 Act point towards any difference of approach or different outcome on the question of attribution? Neither side argued for this. In my view such an approach would be incoherent.

I have considered carefully the way the Claimants put their challenge to the approach in Behrami and Saramati. However, I conclude that the weight of authority in favour of that decision of the ECtHR is such that I should accept the Court’s conclusion on attributability in the context of KFOR in Kosovo, in respect both of the claims founded in the Convention and the claims founded on Kosovan law. The approach taken in Behrami and Saramati was so firmly approved in the House of Lords and then the Supreme Court that, even if it is not technically binding, it is persuasive authority of the very weightiest kind. I cannot possibly find, in the light of the English authority, that Strasbourg’s decision represents some fundamental breach or misunderstanding of English law. I see no basis for departure in relation to the Convention claims.

While I acknowledge the calibre of the ILC Commentary, and of some of the academic criticisms of Behrami and Saramati, I cannot in the end conclude the arguments are persuasive. The better reading of the evidence is that KFOR was indeed under the effective control of the SRSG, and thus the UN.

The Claimants have raised the possibility of dual attribution in this case. However, putting the matter shortly, I see no support for that approach in any of the leading cases.

The facts of this case also seem to me to fall into a somewhat different category than the cases following after Behrami and Saramati, in which the English courts distinguished the position on attribution. Whether one considers the factual situations arising in Iraq and Afghanistan, or indeed in the Dutch cases, such as Netherlands v Nuhanovic (12/03324) 6 September 2013 (Netherlands Supreme Court), and Jaloud v Netherlands (2015) EHRR 29, they all represent in one way or another actions or decisions taken on the ground, whether detention of an individual or response to an individual incident.

Whilst these Claimants’ relatives all suffered kidnap, mistreatment or death in specific incidents, these were not at the hands of KFOR. Essentially, the failure complained of against the Defendant is a much broader failure to create secure and peaceful conditions quickly in Kosovo, and/or to create with immediacy and maintain an effective system of policing, detection and prosecution, preserving evidence and the capacity to prosecute to be continued by police officers acting for UNMIK. As I have said, it is not my part at this stage to reach a conclusion on the merits, but it does seem to me relevant to observe that a different outcome for these Claimants would likely have required not different actions by individual officers, or even small groups of soldiers, but a wholly different approach to the stabilisation of Kosovo. It is surely much more apt for such failures to be attributable to the UN, than it would be to accord such attribution to the wrongful detention of an individual, or the death of an individual in a specific fire fight.

For all these reasons, I find that the relevant acts and omissions complained of are as a matter of law attributable to the United Nations, and not to the United Kingdom. That conclusion is dispositive of these claims against the Defendant. However, I am asked to consider the remaining preliminary issues, and I now do so.

It is a commonplace that the jurisdiction of the ECHR is territorial, with exceptions which have developed over time in the jurisprudence of the Strasbourg court. A State’s jurisdictional competence under Article 1 is primarily territorial, see: Soering (1989) 11 EHRR 439, Ilascu (2005) 40 EHRR 46 and Banković (2007) 44 EHRR SE5.

The ECtHR 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 extra-territorially must be determined with reference to the particular facts.” See Al-Skeini v United Kingdom (2011) 53 EHHR 18, paragraph 132.

The Grand Chamber in Al-Skeini suggested as a common feature to all the exceptions that they “may extend to acts of its authorities which produce effects outside its own territory”: see Al-Skeini paragraph 133. This carries the implication of a positive “exercise” of jurisdiction, mirroring the language in paragraph 132. The Court went on to observe that the principle thus stated “is very broad”, meaning it is “necessary to examine the Court’s case law to identify the defining principles”.

The first exception concerns the acts of diplomatic and consular agents, not in question here. The second is that where a State, through “consent, invitation or acquiescence of the government of that territory …exercises all or some of the public powers normally to be exercised by that government” jurisdiction may arise, see Al-Skeini, paragraph 135. It was unclear to me whether the Claimants relied on that exception, save perhaps as an analogy.

The next two exceptions identified by the Grand Chamber are relied on by these Claimants. They can be given the shorthand “effective control of an area” or “ECA”, and “state agent authority” or “SAA”. In their closing written submissions, the Claimants are explicit that they rely “either on the basis of the Defendant’s exercise of effective control of MNB Central (ECA) or the exercise of state agent authority bringing the Claimants within their control (SAA)” (paragraph 133). In paragraphs 157 to 171 they argue that SAA was based on the exercise of public powers, and I consider their submissions in that way, as underpinning the submission that there was effective control of MNB Central.

The Strasbourg Court in Al-Skeini addressed these exceptions as follows:

“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 v Turkey (2005) 41 EHRR 45 at [91], the Court held that

“[D]irectly 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 v Turkey, no. 31821/96, 16 November 2004, 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 (2009) 49 EHRR SE11 at [86]-[89], 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 Othersv France (2010) 51 EHRR 39, the Court held that the applicants were within French jurisdiction 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 1 of the Convention that are relevant to the situation of that individual. In this sense, therefore, the Convention rights can be “divided and tailored”

(ic) General principles relevant to jurisdiction under article 1 of the Convention: 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. 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.  

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. 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.”

It is worth emphasising one aspect of the Strasbourg Court’s developing case law, to which I will return later in this judgment. In a number of cases arising before Al-Skeini, the ECtHR had to address problems arising from the established occupation by one Convention State (Turkey) of another Convention State (Cyprus): see, for example, Loizidou v Turkey (1995) 20 EHRR 99. Part of the reasoning in such cases, recognised by the Court in paragraphs 141-142 of Al-Skeini, was that it was necessary to avoid a “vacuum” of protection within the “legal space” of the Convention. In such a case the occupying State was “in principle to be held accountable” for breaches of the Convention.

As we have seen, that did not mean that jurisdiction could never exist outside the “legal space” of Member States. However, consonant with the fundamentally territorial jurisdiction of the Convention, jurisdiction outside the Convention “legal space” must be clearly founded on one (or more) of the established exceptions and not upon a supposed “vacuum” requiring to be filled beyond the territorial jurisdiction, outside the “legal space” of the Convention. As the Court put it:

“The Convention is a constitutional instrument of European public order. 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.” (Paragraph 141)

In Al-Skeini, the Court was concerned with the security role assumed by the US and UK, in Iraq, and the temporary exercise of the powers of government in Iraq, through the Coalition Provisional Authority from 16 May 2003. Under these arrangements, the UK had command of the military division centred on Basra. The authority of the Coalition Provisional Authority continued until 28 June 2004, when full authority passed to the Interim Iraqi Government.

The case concerned the deaths at the hands of British soldiers of a number of Iraqi citizens. In one case, (that of Baha Mousa) jurisdiction was not contested by the United Kingdom. In the other cases, the deaths had all taken place in the course of British security operations.

This was the factual background for the rather narrowly expressed conclusion of the court as follows:

“149.

It can be seen, therefore, that following the removal from power of the Ba’ath regime and until the accession of the Interim Government, the United Kingdom (together with the United States) 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 Basrah 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 Basrah 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.”

In my view, it is clear from that recital of the Court’s reasoning that without the direct involvement in the deaths in question, the Court would not have found jurisdiction. The mere “exercise of some of the public powers normally to be exercised by a sovereign government” would have been an insufficient basis. I do not regard that as a surprising outcome. If the jurisdiction was founded merely on the exercise of some of the powers of government, and on the general degree of control over the province of Basra, then Convention rights (or at least unqualified rights) would have been within the jurisdiction of the UK in respect of all the residents of Basra province during the relevant period. That was clearly not what the Court was deciding.

The Grand Chamber decision in Al-Skeini was considered by the Supreme Court in Smith (Susan) v Ministry of Defence [2014] AC 52. The case concerned the deaths of three young British soldiers and injuries to others, in Iraq. The episodes occurred on 25 March 2003, during the war-fighting period and before the creation of the Coalition Provisional Authority, when Corporal Stephen Allbutt was killed by “friendly fire”, and on 10 July 2005 and 28 February 2006, the dates when Privates Phillip Hewett and Lee Ellis died, each in episodes involving Snatch Land Rovers. At those latter dates, the Coalition Provisional Authority had been dissolved and UK forces were acting in aid of the newly established Iraqi government.

The first judgment in Susan Smith was given by Lord Hope, with whom all the others agreed as to the question of jurisdiction, and on the interpretation of Article 1 of the ECHR. Lord Hope reviewed Al-Skeini in the House of Lords (R (Al-Skeini) v Secretary of State for Defence [2008] 1 AC 153). In paragraph 20, he addressed the House of Lords’ finding on effective control of another territory:

“The House held that, although one such exception was recognised where a state through effective control of another territory exercised powers normally exercised by the government of that territory, the obligation to secure the Convention rights would arise only where a contracting State had such effective control over an area as to enable it to provide the full package of rights and freedom guaranteed by Article 1 of the Convention to everyone within that area: Lord Rodger of Earlsferry at paragraph 79; Lord Brown of Eaton-under-Heywood at paragraph 129. The United Kingdom’s presence in Iraq fell far short of such controls. As Lord Rodger put it in paragraph 78, the idea that the United Kingdom is obliged to secure the observance of all the rights and freedoms as interpreted by the European Court in the utterly different society of Southern Iraq was manifestly absurd. The Secretary of State accepted that, as the events occurred in a British detention unit, Mr Mousa met his death within the jurisdiction of the United Kingdom for the purposes of Article 1 of the convention (Lord Rodger at paragraph 61). So far as the other Appellants were concerned, the United Kingdom did not have the kind of control of Basra and the surrounding area that would have allowed it to have discharged its obligations, including its positive obligations, as a contracting State under Article 2.” (Lord Hope, paragraph 20 in Susan Smith)

Lord Hope went on to note three points concerning Al-Skeini in the House of Lords. Firstly, the appellants were all Iraqi citizens, not state agents of the UK or otherwise subject to its control or authority, by contrast to British servicemen (paragraph 21). Secondly, Lord Hope noted that the House of Lords in Al-Skeini had been much influenced on the ruling on jurisdiction by the Grand Chamber in Bankovic v Belgium (2001) 11 BHRC 435, which:

“…emphasised the centrality of territorial jurisdiction, the regional nature of the Convention and the indivisibility of the package of rights in the Convention: Lord Rodger at para 69. As Lord Brown noted in para 109, Bankovic stood, among other things, for the proposition that the rights and freedoms defined in the Convention could not be divided and tailored.” (Susan Smith, paragraph 21)

Lord Hope further noted that it was recognised by the House of Lords in Al-Skeini:

“that it was for the Strasbourg court to define the exceptions and evaluate the grounds for departing from the general rule: Lord Bingham of Cornhill at para 29. As Lord Brown put it at para 105, the ultimate decision on the question must necessarily be for that court. Lord Rodger referred at para 67 to the problem which the House had to face, which was that the judgments and decisions of the European court did not speak with one voice. On the one hand there was Issa v Turkey (2004) 41 EHRR 567, where the court said at para 71 that accountability for violation of the Convention rights and freedoms of persons in another state stems from the fact that article 1 of the Convention cannot be interpreted so as to allow a state party to perpetrate violations of the Convention on the territory of the other state which it could not perpetrate on its own territory. This appeared to focus on the activity of the contracting state, whereas the emphasis in Bankovic was on the requirement that the victim should be within the jurisdiction. In these circumstances the House was of the view that it would not be proper to proceed beyond the jurisprudence of the European court on jurisdiction as analysed and declared by the Grand Chamber in Bankovic.” (Lord Hope in Susan Smith, paragraph 22)

Later in his judgment, Lord Hope turned to the hearing in Al-Skeini in Strasbourg. In paragraph 28 he emphasised that the exercise of jurisdiction is a:

“… threshold condition … a necessary condition for a contracting state to be able to held responsible for acts or omissions imputable to it … The significance of this observation in the context of these appeals is that it is not disputed that the United Kingdom has authority and control over its armed forces when serving abroad. It has just as much authority and control over them anywhere as it has when they are serving within the territory of the United Kingdom. They are subject to UK military law without any territorial limit: Armed Forces Act 2006, section 367(1).” (Susan Smith, Paragraph 28)

Lord Hope drew out two further important points. Firstly, the fact that exceptional circumstances are required to found a non-territorial jurisdiction. The “exceptionality” requirement:

“… is there not to set an especially high threshold for circumstances to cross before they can justify a finding that the state was exercising jurisdiction extra-territorially. It is there to make it clear that, for this purpose, the normal presumption that applies throughout the state’s territory does not apply.” (Susan Smith, Paragraph 30)

The second important point emphasised by Lord Hope is as follows:

“Secondly, the words “to date” in para 132 indicate that the list of circumstances which may require and justify a finding that the state was exercising jurisdiction extraterritorially is not closed. In Catherine Smith, para 303 Lord Collins said that Bankovic made it clear in paras 64 and 65 that article 1 was not to be interpreted as a “living instrument” in accordance with changing conditions. That can no longer be regarded as an entirely accurate statement. The general principles are derived from the application to particular facts of the requirement of jurisdictional competence. The particular facts to which those principles must now be applied may be the product of circumstances that were not foreseen by the framers of the Convention. But that is no reason to disregard them if they can be shown to fall within the general principles relevant to jurisdiction under article 1.” (Susan Smith, paragraph 30)

In paragraph 31, Lord Hope adopted the analysis of Al-Skeini of the general principles relevant to jurisdiction into the three distinct categories:

“…state agent authority and control; effective control over an area; and the Convention legal space.” (Susan Smith, paragraph 31)

He observed that in the Smith case the relevant category was that of state agent authority and control (paragraph 31). Lord Hope then quoted paragraph 133 of Al-Skeini in Strasbourg as follows:

“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 v France and Spain (1992) EHRR 745, para 91; Loizidou v Turkey (1995) 20 EHRR 99 (preliminary objections), para 62; Loizidou v Turkey (1997) 23 EHRR 513 (merits), para 52; Bankovic v Belgium (2004) 44 EHRR SE75, para 69. The statement of principle, as it appears in Drozd 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.” (Susan Smith, paragraph 32)

Lord Hope then reviewed the ensuing paragraphs from Al-Skeini in Strasbourg identifying the principles from the case law bearing on state agent authority and control. Lord Hope identified the third principle, as set out in paragraph 136 of Al-Skeini in Strasbourg:

“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 control of the state’s authorities into the state’s Article 1 jurisdiction.” (Susan Smith, paragraph 35)

Lord Hope then considered four examples of the application of that principle, concluding that the “essence of the general principle” was contained in the words at the end of paragraph 136 of Al-Skeini:

“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.” (Susan Smith, paragraph 36)

In paragraphs 37 and 38, Lord Hope reviewed paragraph 137 of Al-Skeini, concluding that the:

“…proposition, which informed much of the thinking of the House of Lords in Al-Skeini (HL) and of the majority in Catherine Smith, that the rights in Section 1 of the Convention are indivisible, is no longer to be regarded as good law. The extra-territorial obligation of the contracting state is to ensure the observance of the rights and freedoms that are relevant to the individual who is under its agents’ authority and control, and it does not need to be more than that.” (Susan Smith, paragraph 38)

In paragraphs 42-44, Lord Hope restated and emphasised the point made by Lord Bingham in R (Ullah) v Special Adjudicator [2004] 2 AC 323, at paragraph 20: the Convention was to be seen as “a living tree capable of growth and expansion within its natural limits” but that those limits will often call for very careful consideration. In relation to a question about the state’s jurisdiction under Article 1:

“…the need for care is all the greater. In Catherine Smith, para 93, I endorsed the view expressed by Lord Brown in Al-Skeini (HL), para 107 that article 1 should not be construed as reaching any further than the existing Strasbourg jurisprudence clearly shows it to reach. I would take that as being for us, as a national court, the guiding principle.” (Susan Smith paragraph 44)

In his ensuing paragraphs, Lord Hope concluded that the decision in Bankovic could no longer be regarded as good law in two ways. Firstly, the conclusion in Bankovic that an act which would engage the Convention if committed on the territory of a contracting State does not ipso facto engage the Convention if carried out by that contracting state on the territory of another State outside the council of Europe, is no longer the law. Further, the conclusion in Bankovic that the package of rights in the Convention is indivisible and cannot be “divided and tailored to the particular circumstances of the extra-territorial act in question” is also no longer correct. (Susan Smith, paragraphs 47 and 48). Lord Hope went on to note that the matter had now gone further:

“The Grand Chamber has now taken matters a step further. The concept of dividing and tailoring goes hand in hand with the principle that extra-territorial jurisdiction can exist whenever a state through its agents exercises authority and control over an individual [emphasis added]. The court need not now concern itself with the question whether the state is in a position to guarantee Convention rights to that individual other than those it is said to have breached: see Jamaa v Italy 55 EHRR 627.” (Susan Smith, paragraph 49)

After further passages to which I need not make reference, Lord Hope reached his conclusions as follows:

“For these reasons I would hold that the decision in Catherine Smith should be departed from as it is inconsistent with the guidance that the Grand Chamber has now given in its Al-Skeini judgment. I would also hold that the jurisdiction of the United Kingdom under article 1 of the Convention extends to securing the protection of article 2 to members of the armed forces when they are serving outside its territory and that at the time of their deaths Pte Hewett and Pte Ellis were within the jurisdiction of the United Kingdom for the purposes of that article. To do so would not be inconsistent with the general principles of international law, as no other state is claiming jurisdiction over them. The extent of that protection, and in particular whether the MOD was under a substantive duty of the kind for which the Snatch Land Rover claimants contend, is the question which must now be considered.” (Susan Smith, paragraph 55)

Following the hearing in Susan Smith, in one further case before Strasbourg, the Court considered the appropriate jurisdiction under the Convention. In Jaloud v Netherlands (2015) 60 EHRR 29, the case arose from the fatal shooting by a Dutch army officer at a checkpoint jointly manned by Dutch troops and members of the Iraqi Civil Defence Corps in April 2004. The Dutch troops in question were serving as part of the Stabilisation Force in Iraq [“SFIR”]. They were under the operational control of a British officer. At this time, the United States and United Kingdom were “occupying powers” under UNSCR 1483. The Netherlands was not an occupying power. At this point, the Coalition Provisional Authority had been established. There was as yet no Iraqi government.

The Netherlands argued that the events complained of did not fall within the jurisdiction of the Netherlands within the meaning of Article 1, and asked the Court to distinguish the case from Al-Skeini.

The UK Government intervened in support of the Netherlands. The UK argued that Al-Skeini had been based on “exclusive physicalpower and control and actual or purported legal authority over an individual” (paragraph 124). A critical distinction from Al-Skeini was that the Netherlands was not an “occupying power” (paragraph 124).

The court reviewed its own previous authority, including a restatement of the “ECA” basis for jurisdiction:

“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 (Loizidou (preliminary objections), cited above, § 62; Cyprus v. Turkey [GC], no. 25781/94, § 76, ECHR 2001-IV, Banković, cited above, § 70; Ilaşcu, cited above, §§ 314-316; 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 (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; Ilaşcu, 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, cited above, §§ 388-394)....”

The Court went on to note that the “Netherlands Government retained full command over the Netherlands contingent in Iraq” (paragraph 146), including the “drawing up of distinct rules on the use of force” (paragraph 147). The Court could not therefore find that the Netherlands troops had been placed “at the disposal” of any foreign power, or that they were under “the exclusive direction or control” of any other state (paragraph 150). The Court was satisfied that the:

“152.

…checkpoint had been set up in the execution of SFIR’s mission, under United Nations Security Council Resolution 1483 (see paragraph 93 above), to restore conditions of stability and security conducive to the creation of an effective administration in the country. The Court is satisfied that the respondent Party exercised its “jurisdiction” within the limits of its SFIR mission and for the purpose of asserting authority and control over persons passing through the checkpoint. That being the case, the Court finds that the death of Mr Azhar Sabah Jaloud occurred within the “jurisdiction” of the Netherlands, as that expression is to be construed within the meaning of Article 1 of the Convention.”

Properly analysed, in my view the judgment in Jaloud is a consistent application of the approach in Al-Skeini.

How do the conclusions properly to be drawn from Al-Skeini apply to this case? I bear well in mind the principle enunciated by Lord Bingham in Ullah and affirmed by Lord Hope in Smith.

I reject the submission by the Claimants that jurisdiction here can arise from the supposed effective control of the central MNB of Kosovo at the relevant period in the sense of that phrase which is here relevant, that is to say such a degree of control so as to be in a position effectively to guarantee the gamut of convention rights. If it was absurd to suggest that the United Kingdom forces were in effective control of the area of Basra in 2003 to 2005, it is equally absurd to argue that KFOR was, or could be expected to be, in effective control (in that sense) of central Kosovo within a matter of days of the military takeover pursuant to the MTA.

As I have already observed, such a duty, such an expectation, cannot be founded on a need to avoid a “vacuum in the legal space” of the Convention, since Kosovo was outside that “space”. Ms Brimelow submitted that all qualified rights were unlikely to have application in a situation like Kosovo because there would be justification, in the interests of national security or prevention of crime, or protection of the rights of others. Positive obligations might similarly be limited by context. Absolute rights would be untouched and could have been secured by KFOR. Yet at some points in the course of oral submissions, it seemed to me that the submission was in fact broader: KFOR should not have been given, or have accepted, the role of entering and stabilising Kosovo, unless it had the capacity immediately to exercise effective control of the area in the sense of standing guarantor of all Convention rights. Certainly the implication was that KFOR should have been able to exercise effective control so as to protect all Serbs from communal violence, and from the outset to ensure effective police investigations and preservation of evidence, in relation to all violent incidents. Practical difficulties arising from such an approach should be addressed when examining the existence or extent of duties under the Convention, by “dividing and tailoring” the rights to be protected, and (no doubt) by evidential conclusions, rather than by reference to jurisdiction.

There are a number of important objections to such an approach. First and foremost, in my judgment it does not arise from any of the Strasbourg case law, much less English authority. Secondly, it amounts to an obligation on the part of each Member State not merely to prevent a vacuum arising in the “legal space” of the Convention, but to export the Convention beyond its territorial limits to anywhere which may be subject to a significant military presence from that State.

I am assisted in this view by the remarks of Brooke LJ in paragraphs 119, 120 and 124 of Al-Skeini v United Kingdom in the Court of Appeal, and the remarks of Sedley LJ in paragraph 194 of that case, all of which are set out in paragraph 80 of the Grand Chamber decision. I need not repeat them here.

I am also assisted by the decision of Leggatt J in Al Saadoon v Secretary of State for Defence (2015) 3 WLR 503. At paragraph 67, he wrote:

“Although the obligation to secure the entire range of Convention rights is the consequence of finding jurisdiction based on effective control over an area, given the nature of the test of control, I think it clear that this consequence also determines the degree of control required to establish jurisdiction. Once it is recognised that jurisdiction does not depend on whether the state’s presence and activities in the relevant territory are lawful or unlawful, but solely on whether the state is as a matter of fact in a position to secure to people within the territory the rights guaranteed by the Convention, it follows that the test of effective control over the area will not be satisfied unless the state has the practical ability to secure the full package of Convention rights.”

I am likewise assisted by the decision of the Grand Chamber in Hassan v United Kingdom (application 29750/09), judgment of 16 September 2014, paragraph 75, where the GC said:

“75.

In Al-Skeini … the Court found that the applicant’s relatives fell within the United Kingdom jurisdiction because … the United Kingdom had assumed authority for the maintenance of security in South East Iraq and the relatives were killed in the course of security operations carried out by United Kingdom troops pursuant to that assumption of authority (Al-Skeini paragraphs 143-150). In the light of Al-Skeini it was unnecessary to determine whether jurisdiction also arose on the ground that the United Kingdom was in effective military control of South Eastern Iraq during that period. However, the statement of facts in Al-Skeini included material which tended to demonstrate that the United Kingdom was far from being in effective control of the South Eastern area which it occupied, and this was also the finding of the Court of Appeal which heard evidence on this question in the domestic Al-Skeini proceedings…”

Effective control of an area as the foundation for an extension of the territorial jurisdiction of the European Convention, cannot arise from the fact that the forces of a Member State are the only significant force in an area.  Nor can a crude headcount of soldiers present expressed as a proportion of the population finally decide the matter, although it may be a helpful part of the evidence. The essential purpose of this principle (parallel, one would have thought, to the other bases of extension) is that where a Member State acts outside the "legal space" of the Convention and establishes such a degree of control of an area (or under the other extension, a person) so that it acquires the capacity to determine or control events there, so that it has "the practical ability to secure the full package of Convention "rights" as Leggatt J put it, then it is legitimate (and practical) to expect the Member State to act as it would within its own borders and secure for the citizens of the area their rights under the Convention.

It is noteworthy that the observation of Lord Hope that the Convention rights can now be "divided and tailored to the particular circumstances of the extra-territorial act in question" does not arise in relation to effective control of an area [“ECA”], but in relation to a specific "extra-territorial act" and to State agent authority [“SAA”].  That is so as a matter of the Strasbourg case law, and in logic must be so, if I have properly interpreted the underlying purpose of the "ECA" principle.  One cannot establish jurisdiction by showing that in relation to a given area, a Member State has sufficient control to secure the rights under Articles 2 and 3, or even merely the freestanding obligation to investigate deaths, as the Claimants here appear to argue.  That is not to be drawn from the case law, and does not fit with the way Lord Hope analysed the matter.

There is a further confirmation this is not the law, contained in the concurring opinion of Judge Bonello in Al-Skeini at Strasbourg, at 0-II I to 0-II 39.  Judge Bonello concurred with the decision of the Court, but argued that a "functional" basis for jurisdiction would be preferable to the approach the Court adopted.  Such a "functional" basis for jurisdiction is indistinguishable from the arguments advanced by the Claimants, and, as Judge Bonello rather ruefully conceded throughout his opinion, that is not the approach of the Court.

It seems to me that such an approach would, in effect, abolish any jurisdictional threshold.  Judge Bonello proposed the following test, to apply in all circumstances:

"Did it depend on the agents of the State whether the alleged violation would be committed or would not be committed?  Was it within the power of the State to punish the perpetrators and to compensate the victims?"  (Al-Skeini, para 0-II 16)

 If such were the test, a case would have to be tried on its facts, and a decision reached on the merits, before the issue of jurisdiction could be resolved. 

In any event, that approach is not the law. For these reasons I reject the submission that jurisdiction is founded on effective control of the area.

In my judgment, the conclusion on this point arises from the analysis of Lord Hope in Smith, in particular in the passages from paragraphs 36, 38 and 49 of Smith quoted above.  Jurisdiction on this basis arises from the exercise by the State of physical power and control over the person in question, giving rise to the obligation that the State should secure the rights and freedoms relevant to that individual. The case law establishes that the physical control can be through detention, or because the individual was shot by British soldiers, or (in the case of the third applicant’s wife in Al-Skeini) shot in exchanges of gunfire, between British troops and insurgents.

In the instant cases, there was never any physical control by the Defendant of the Claimants’ relatives. To found an extension of the Convention jurisdiction on the basis that initial investigatory steps were taken by military police officers attached to KFOR would represent a radical extension of the existing approach of the Strasbourg Court.

For those reasons I reject the submission that on the facts of this case an extended jurisdiction can be founded on State agent authority and control.

It follows that I decide Issue 3(c) against the Claimants. The Claimants were not within the jurisdiction of the European Convention at the material times. This conclusion on its own is dispositive against the Claimants of any claim under the Human Rights Act 1998.

Having concluded that there was no jurisdiction under the Convention, it follows that no “operational protective duty” arose under Articles 2 or 3. The basis of the argument on effective control of any area I have set out above, precludes such a duty. Moreover, in the conditions agreed to be prevailing in Kosovo in the relevant weeks in June and July 1999, it seems to me inconceivable that such a general duty could arise for an international force brought in to attempt stabilisation in such circumstances.

Even if the case were to proceed on the basis that Dr Tomanovic was given an assurance as to his safety, it does not appear to me a duty could arise in respect of him. There was never any physical control of Dr Tomanovic in the sense required.

I should consider briefly whether an investigative duty arose under Articles 2 or 3. Investigative duties can and do arise where a Member State carries the full range of duties commensurate with a territorial jurisdiction or where effective control of an area is established. Where jurisdiction is based on “physical control” or “SAA”, then it is clear that an investigative duty arises in respect of the deaths (or Article 3 breaches, were they to arise) of those individuals concerned.

I accept the argument from the Defendant that in such circumstances there must be a trigger for an investigative obligation to arise. This was the ratio of R (Long) v Secretary of State for Defence [2015] EWCA Civ 770. The same view was adopted by Leggatt J in Al Saadoon at paragraphs 281 to 285.

I have considered whether the acceptance of an investigative role by those military police officers attached to KFOR could, without more, fix the United Kingdom with an investigative obligation pursuant to Articles 2 and 3.

The Defendant rejects this on a number of grounds. If there was such an obligation it was that of KFOR and/or UNMIK, not the UK. UNMIK took over all the relevant files and investigations (on the Defendant’s case and evidence), and UNMIK then carried on their role in Kosovo for years beyond that handover, themselves transferring the role of investigating abductions to the Office of Missing Persons and Forensics [“OMPF”] in 2002. The largest civilian mission ever launched under the EU’s Common Security and Defence Policy took the form of the European Union Rule of Law Mission in Kosovo [“EULEX”]. EULEX aimed to support the Kosovo authorities and in December 2008 took over responsibility in relation to the administration of justice. The Defendant resists any investigative duty in the first place, and further argues that, even if it did arise, it could not be said, on any basis, to survive the handover to UNMIK; even more so, it could not be continuing, given the subsequent evolution of responsibility held by successive internationally established and accepted bodies.

I found the Claimants’ arguments on this area hard to follow, and unpersuasive.

In my view there arose no freestanding investigative obligation under the Convention for the reasons I have given. Even if the actions of KFOR were attributable to the United Kingdom, the engagement of the military police from KFOR was quite insufficient to import jurisdiction. The only rational basis for such jurisdiction would be that proposed by Judge Bonello in his concurring opinion in Al-Skeini, a “functional” jurisdiction, which he acknowledged was not the approach of the Court.

I therefore decide the first part of issue 3(e) against the Claimants. No investigative duty arose under Articles 2 or 3 of the Convention. As a consequence, no continuing duty can have applied 16 years later.

I turn to the second part of issue 3(e). It is clear that, at least to some extent, this question overlaps with issues 3(a) i and ii.

The Claimants rely on three specific authorities: Angelova v Bulgaria (2008) 47 EHRR 7, Kolevi v Bulgaria (1108/02) (2014) 59 EHRR 23, and R (Litvinenko) v SSHD [2014] EWHC 194 (Admin). As the Court in Angelova confirmed, the obligation is a continuing obligation of the State (with continuing territorial jurisdiction) whether or not the State had any direct responsibility for the death in question (Angelova, paragraphs 93 to 98). This is a particularly serious obligation when a killing was racially motivated (Angelova paragraph 98). The reasoning for the last point is illuminating:

“… where that attack is racially motivated, it is particularly important that the investigation is pursued with vigour and impartiality, having regard to the need to reassert continuously society’s condemnation of racism and to maintain the confidence of ministries in the ability of the authorities to protect them from the threat of racist violence.”

That quotation exemplifies and underlines the essential context of Angelova, and of the other cases relied on: the continuing obligations of the State, which acquired and retains the duty to investigate, not because that State was involved in the death, but because that State had and has a continuing jurisdiction over the matter.

The same context applied in Šilih v Slovenia (2009) 49 EHRR 37, even though, for other reasons, the procedural obligation was found not to be of a continuing nature.

In Varnava and Others v Turkey (Application 16064-66, 68-73/90) 18 September 2009, the Grand Chamber considered applications from the relatives of missing (Greek) Cypriot soldiers who disappeared during conflict with the Turkish army in Northern Cyprus in 1974. It is important that the Court stated the complaints arose also from “the continuing division of the territory of Cyprus” (paragraph 1). Essential context for this decision is also to be found in the preceding inter-state case Cyprus v Turkey No 25781/94 ECHR 2001-IV, where the Court said that the evidence “was found to bear out the assertion that “many persons now missing” had been detained by the respondent government or forces for which they were responsible” (Varnava, paragraph 119).

The Court in Varnava made a particular distinction relevant to the case of Dr Tomanovic, a case where death has not been confirmed:

“148.

There is, however, an important distinction to be drawn in the Court’s case-law between the obligation to investigate a suspicious death and the obligation to investigate a suspicious disappearance. A disappearance is a distinct phenomenon, characterised by an ongoing situation of uncertainty and unaccountability in which there is a lack of information or even a deliberate concealment and obfuscation of what has occurred (see also the definitions of disappearance set out above in part II B. “International law documents on enforced disappearances”). This situation is very often drawn out over time, prolonging the torment of the victim’s relatives. It cannot therefore be said that a disappearance is, simply, an “instantaneous” act or event; the additional distinctive element of subsequent failure to account for the whereabouts and fate of the missing person gives rise to a continuing situation. Thus, the procedural obligation will, potentially, persist as long as the fate of the person is unaccounted for; the ongoing failure to provide the requisite investigation will be regarded as a continuing violation (see Cyprus v. Turkey, cited above, § 136). This is so, even where death may, eventually, be presumed.

149.

It may be noted that the approach applied in Šilih (cited above, § 163) concerning the requirement of proximity of the death and investigative steps to the date of entry into force of the Convention applies only in the context of killings or suspicious deaths, where the anchoring factual element, the loss of life of the victim, is known for a certainty, even if the exact cause or ultimate responsibility is not. The procedural obligation in that context is not of a continuing nature in the sense described above.”

The ECtHR reviewed their own decision in Šilih in the course of considering Janowiec v Russia (2014) 58 EHRR 30. For present purposes I need not focus on the specific time considerations. The Court was clear that, in circumstances such as applied here (mass murder by a Member State) a continuing obligation arose to investigate, or participate and assist in an investigation, subject to the applicability of the Convention. The same assumption underpins the decision of the Supreme Court in R (Keyu) v Secretary of State for Foreign & Commonwealth Affairs and Another [2015] UKSC 69. Subject to the applicability of the Convention in point of time, the same conclusions could be drawn from In re McKerr [2004] UKHL 12. In none of these cases is it a surprising conclusion that if the Convention can be taken to have applied at the relevant time, then a continuing obligation to investigate arose. In each of these cases, the deaths requiring investigation took place at the hands of agents of the State, within the jurisdiction of the State. They were either admittedly unlawful, or arguably unlawful, killings by the State agents, and had not been fully investigated. These cases sprang from a very different context from that which applies here.

I have already rehearsed the reasons why I consider no jurisdiction arose in the first place, giving rise to a duty to investigate. However, even if I was wrong on that point, it seems to me inconceivable that a duty to investigate arising during the short period when KFOR represented authority in Kosovo could be thought open-ended in time. That would appear to me to be far beyond even Judge Bonello’s preferred basis of jurisdiction in Al-Skeini. Were jurisdiction (and thus obligation) under the Convention to arise much more readily, as he would submit was preferable, it would seem very likely that such obligations would be much more readily circumscribed in time, perhaps to the period of presence in the relevant theatre.

Would the Defendant’s obligations run alongside that of UNMIK? Or run alongside any nation whose police officers assisted the civil authorities? Would the obligations persist alongside the obligations of the subsequently established civil authorities themselves? And if such successors with responsibility for policing and justice in Kosovo owe no obligations under the European Convention, is it to be said that the Defendant’s duty to investigate persists in any event, leaving the Defendant under a legal obligation to attempt further investigations, in the face no doubt of stony indifference from those now in authority?

However, we are beyond any established principle. I have been referred to no authority which supports a continuing obligation to investigate in circumstances comparable to this claim. If such an obligation arose here, it did not arise because the Defendant then, or since, had territorial jurisdiction, or jurisdiction arising from effective control of the relevant area. It did not arise because the Defendant was even arguably directly responsible for the death or disappearance of the Claimants’ relatives. The Defendant has not played a relevant role since UNMIK took over responsibilities for civil administration in Kosovo in the autumn of 1999. I see no authority and no logical principle upon which a continuing duty to investigate could be established on the facts as they are here. I therefore decide the second part of issue 3(e) against the Claimants.

For the reasons already set out, I conclude that no duties were owed under Articles 8 and 13.

For the reasons I have already given, supported by matters set out under Issue 3(b) below, I see no basis for jurisdiction; no “instantaneous act” of the authorities and no basis for a continuous violation of the Convention. There is therefore in my judgment no basis for any extension of the one year limitation period under the Human Rights Act 1998.

The Claimants do not in fact argue that the Human Rights Act has retrospective effect. Their claim is based on the premise of existing detachable or freestanding investigative obligations arising from adherence to the Convention and which persisted through to the commencement of the Act. They rely upon the decision of the Grand Chamber in Šilih, and in particular on paragraph 159, containing the conclusion of the Court that:

“The procedural obligation to carry out an effective investigation under Article 2 has evolved into a separate and autonomous duty. Although it is triggered by the Acts concerning the substantive aspects of Article 2 it can give rise to a finding of a separate and independent “interference” with the meaning of the Blečić judgment. In this sense it can be considered to be a detachable obligation arising out of Article 2 capable of binding the State even when the death took place before the critical date.”

The Grand Chamber went on to conclude in paragraphs 162 and 163 that where a death occurred before the critical date, procedural acts and omissions which come later can fall within the Court’s temporal jurisdiction. However, in paragraph 163 the Grand Chamber went on to limit this conclusion:

“163.

Secondly there must exist a genuine connection between the death and the entry into force of the Convention in respect of the respondent State for the procedural obligations imposed by Article 2 to come into effect. Thus a significant proportion of the procedural steps required by this provision – which include not only an effective investigation into the death of the person concerned but also the institution of appropriate proceedings for the purpose of determining the cause of the death and holding those responsible to account – will have been or ought to have been carried out after the critical date.”

As the Defendant points out, the House of Lords had clearly decided that the Human Rights Act could not be retrospective in its effect, in the course of Re McKerr [2004] UKHL 12. Following the decision in Šilih,the Supreme Court returned to the question of retrospectivity of the Human Rights Act in Re McCaughey [2011] UKSC 20, [2012] 1 AC 725. In this decision Lord Phillips was clear that McKerr remained undisturbed by Šilih when he stated in:

“58.

…the HRA does not have retroactive effect (“the non-retroactive principle”). It does not permit a claimant to bring a claim for breach of a Convention obligation before [the Act] came into force.

This question arose once more in the course of R (Keyu) v Secretary of State for the Foreign and Commonwealth Office [2015] UKSC 69. Keyu concerned an attempted judicial review to force the defendant into conducting an enquiry or inquest into an alleged massacre by British troops in Malaya in 1948. The Supreme Court was considering, therefore, not an action under the Human Rights Act but an application for judicial review. The relevant obligation was invoked from the Convention itself, not the Act.

In giving the leading judgment, Lord Neuberger emphasised the fact, spelled out by the Grand Chamber in Janowiec at paragraph 41, that where the relevant death occurred before the “critical date”, the Court’s temporal jurisdiction extends only to procedural acts or omissions subsequent to the critical date. Secondly, the procedural obligation pursuant to the Convention will only come into effect if there was a “genuine connection” between the death as the triggering event and the entry into force of the Convention, subject to an alternative basis which need not concern us now. In Keyu, the Supreme Court majority concluded that the relevant “critical date” should be January 1966, the point when the United Kingdom accorded the right to citizens to petition the Strasbourg Court (paragraph 78). Drawing on the decisions in Šilih and Janowiec (in particular paragraph 144 in Janowiec) Lord Neuberger concluded that one could not normally go back more than ten years from the “critical date”, to establish a connection sufficient for an invocation of the duties under the Convention after the critical date: see paragraphs 87 and 89.

Lord Neuberger then went on to consider the question of whether there was a right to take action under the 1998 Act. In paragraphs 92-97 of his judgment he reviewed the different opinions expressed in Re McCaughey as to whether the effect of Šilih and Janowiec meant that there was an obligation to investigate a suspicious death in such circumstances in domestic law under the 1998 Act. He concluded, in paragraph 97 as follows:

“97.

In the light of this rather unsatisfactory state of affairs, there would be much to be said for our deciding the issue of whether McKerr remains good law on this point. However, given that it is unnecessary to resolve that issue in order to determine this appeal, we ought not to decide it unless we have reached a clear and unanimous position on it. We have not. On the one hand, the respondents’ case is supported by the unanimous decision of a five-judge court in McKerr, whose ratio is clear and simple to apply, but it could lead to undesirable conflicts between domestic and Strasbourg jurisprudence. On the other hand, the appellants’ case derives significant support from two, and arguably three, of the judgments in the subsequent seven-judge court in McCaughey, and, while it involves applying Strasbourg jurisprudence which has been criticised for lack of clarity, it would ensure that domestic and Strasbourg jurisprudence march together.

98.

Accordingly, I would leave open the question whether, if the Strasbourg court would have held that the appellants were entitled to seek an investigation into the Killings under article 2, a UK court would have been bound to order an inquiry pursuant to the 1998 Act.”

In his judgment, Lord Kerr at paragraph 249 agreed that it was not necessary for the Court to reach a conclusion on whether McKerr was wrongly decided. The Court in Keyu had to decide:

“Whether in the light of the State’s detachable duty to investigate suspicious deaths, there is an existing duty to conduct an Article 2 compliant enquiry into the deaths which are the subject of this appeal. On that basis it is impossible to say that, simply because the HRA came into force on 2 October 2000, ipso facto, there is no such duty.”

Lord Kerr went on, in paragraph 252, to give his own view:

“252.

My unequivocal answer, therefore to the question, should the temporal jurisdiction of the national court under the HRA be coterminous with that of ECtHR is that it should not be. Just because the Strasbourg court does not have temporal jurisdiction, it should not be regarded as automatic that the national court does not.”

The Claimants rely upon the fact that both Lord Neuberger and Lord Kerr referred to the case of Brecknell v United Kingdom (Application No 32457/04), 27 November 2007, in which the ECtHR found that there was a “revived obligation” to investigate a murder dating from 1975 when more than 17 years later fresh public allegations were made concerning State collusion.

Relying upon Šilih and Janowiec as interpreted by the Supreme Court in Keyu, and upon Brecknell, the Claimants submit that the Defendant was the subject of an investigative obligation continuing since the day of Dr Tomanovic’s disappearance; that there was a continuing investigative obligation in respect of the first two Claimant’s relatives because a significant proportion of the procedural steps to discharge that obligation were required to have taken place after “the critical date” (in this case well after the right of personal petition to Strasbourg), and the investigative obligation was revived by the further information or material. The Claimants here appear to refer to EULEX, the Human Rights Advisory Panel, the Human Rights Review Panel, the report by Senator Marty and/or SITF.

The Defendant’s response is in essence to rely upon McKerr as confirmed by Lord Phillips in McCaughey, to the effect that there is a straightforward principle that the Human Rights Act does not have retrospective effect.

The Defendant accepts that there may be circumstances where an investigative obligation can arise and continue, even though the deaths from which that obligation arises occurred before the coming into force of the Human Rights Act. The obligation, as defined in Keyu, depends on the issue of connection to the trigger events. This brings the argument back to whether such a continuing obligation arises on the facts of this case.

As matters stand, it appears to me that McKerr remains good law and binding authority which I should follow. I accept that in some of the remarks I have quoted above in Keyu and in other obiterdicta in McCaughey and Keyu questions are raised as to whether this position may change. If on the facts of this case the deaths and disappearances in 1999 had occurred in circumstances which gave rise to the continuing investigative obligation on the part of the Defendant, then it might be necessary for me to consider this issue further. As I have already indicated, I do not conclude that to be the case. I therefore do not feel bound to express a view on McKerr, one way or the other.

The Claimants argue that:

“Irrespective of whether the Human Rights Act applies to the Defendant’s duties under Articles 2 and 3 of the Convention prior to commencement in 2000, the Defendant is not absolved of any substantive obligation under Article 2 and 3 or equivalent obligations under customary international law.”

The submissions recite the Geneva Conventions, the 1992 UN Declaration for the Protection of all Persons from Enforced Disappearances, and other international conventions.

The Claimants go on to rely upon Trendtex Trading Corp v Central Bank of Nigeria [1977] QB 529 at 553 where Lord Denning stated that:

“The rules of international law are incorporated into English law unless they are in conflict with an act of Parliament.”

The Claimants also rely upon the judgment of Lord Mance in Keyu where at paragraph 150 he stated:

“150.

Speaking generally, in my opinion, the presumption when considering any such policy issue is that CIL, once established, can and should shape the common law, whenever it can do so consistently with domestic constitutional principles, statutory law and common law rules which the courts can themselves sensibly adapt without it being, for example, necessary to invite Parliamentary intervention or consideration.”

It appears that the Claimants seek to rely upon CIL as setting up obligations actionable in domestic law, existing long before the inception of the Human Rights Act, but thereby extending retrospectively the capacity to invoke the Act, so that the United Kingdom was obliged in substance, as the Defendant put it in reply, to secure the Article 2 and 3 obligations prior to October 2000.

I agree with the submissions of the Defendant on this issue. These contentions cannot succeed. The Claimants have pleaded their case under the Human Rights Act, not a free-standing common law right with equivalent content. In any event, international law is not part of domestic law. There are fundamental constitutional reasons why that is so. Parliament, not the Executive, makes the law and on that point the Defendant relies on a range of authority, of which I need refer to no more than R (SG and Others) v Secretary for Work and Pensions [2015] UKSC 16. As Lord Bingham made clear in R v Jones and Others [2007] 1 AC 137 at paragraphs 11 and 23, customary international law may be regarded as “not a part but … one of the sources of English law.” He further observed that “customary international law is applicable in the English Courts only where the Constitution permits” (paragraph 23).

A further reason why it seems to me this contention does not assist the Claimants’ case is the straightforward conclusion of the House of Lords in R v Secretary of State for the Home Department, ex parte Brind [1991] 1 AC 696, where the House of Lords held that the European Convention was not an enforceable set of obligations in domestic law. The Courts could not, and would not, do by the back door that which Parliament had (by that stage as yet) declined to do, and incorporate the Convention into English domestic law.

For all these reasons, I reject the contention that customary international law can be regarded as having been incorporated into English law with the effect of supporting the obligations under Articles 2 and 3 of the European Convention, at a time when those Articles themselves had been incorporated into the 1998 Act but with a specific commencement date in October 2000. I reject this argument as supporting an investigative duty either under, or parallel to, Articles 2 and 3 of the Convention, before the commencement of the Human Rights Act in October 2000 or as in some way creating a retrospective quality to the statute.

I conclude that the Human Rights Act 2000 does not apply to the deaths and disappearances which are the subject of this complaint. I decide this issue also against the Claimants.

Two critical documents bearing on this issue are to be found in the Joint Declaration of the Special Representative of the Secretary General and the Commander of the Kosovo force adopted on 17 August 2000 [“Joint Declaration”] and Regulation 2000/47 on the status, privileges and immunities of KFOR and UNMIK and their personnel in Kosovo [“the Joint Declaration”], adopted on 18 August 2000 by the Special Representative of the Secretary General to implement the joint declaration [“Regulation 2000/47”].

The Joint Declaration reads as follows:

“CJ (00)0320 17 August 2000

The Special Representative of the Secretary-General of the United Nations and the Commander of the Kosovo Force:

Recalling Security Council Resolution 1244 (1999) of 10 June 1999 authorized member States and relevant international organizations to establish the International Security Presence in Kosovo with all necessary means to fulfil its responsibilities under paragraph 9 of the Resolution;

Recalling that, by the same Resolution, the Security Council authorized the Secretary General with the assistance of relevant International Organizations, to establish an international Civil Presence in Kosovo – UNMIK – in order to provide an interim administration for Kosovo with the main responsibilities as set out in paragraph 11 of the Resolution;

Noting that, by the same Resolution, the Security Council requested the Secretary General to instruct his Special Representative to co-ordinate closely with the International Security Presence, to ensure that both presences operate towards the same goals and in a supportive manner;

In order to affirm, within Kosovo, the status of UNMIK and KFOR and their personnel, and privileges and immunities to which they are entitled,

Hereby declare as follows:

1.

UNMIK and KFOR, their property, funds and assets are immune from any form of legal process;

2.

UNMIK and KFOR personnel shall respect the laws and regulations applicable within Kosovo in accordance with UNMIK Regulations 1999/1 and 1999/24 insofar as they do not conflict with the fulfilment of the mandates given to UNMIK and KFOR by the Security Council;

3.

UNMIK personnel shall be immune from any form of legal process in respect of words spoken or written and all acts performed by them in their official capacity;

4.

KFOR personnel shall be subject to the exclusive jurisdiction of their respective sending States. They shall be immune from local criminal, civil and administrative jurisdiction and from any form of arrest or detention other than by persons acting on behalf of their sending States;”

The Regulation number 2000/47 reads:

“REGULATION NO. 2000/47

ON THE STATUS, PRIVILEGES AND IMMUNITIES OF KFOR AND UNMIK AND THEIR PERSONNEL IN KOSOVO

The Special Representative of the Secretary-General,

Pursuant to the authority given to him under United Nations Security Council resolution 1244 (1999) of 10 June 1999,

…

Section 2

Status of KFOR and its Personnel

KFOR, its property, funds and assets shall be immune from any legal process.

2.2

All KFOR personnel shall respect the laws applicable in the territory of Kosovo and regulations issued by the Special Representative of the Secretary-General insofar as they do not conflict with the fulfilment of the mandate given to KFOR under Security Council resolution 1244 (1999).

2.3

Locally recruited KFOR personnel shall be immune from legal process in respect of words spoken or written and acts performed by them in carrying out tasks exclusively related to their services to KFOR.

.4 KFOR personnel other than those covered under section 2.3 above shall be:

immune from jurisdiction before courts in Kosovo in respect of any administrative, civil or criminal act committed by them in the territory of Kosovo. Such personnel shall be subject to the exclusive jurisdiction of their respective sending States; and

immune from any form of arrest or detention other than by persons acting on behalf of their respective sending States. If erroneously detained, they shall be immediately turned over to KFOR authorities.”

Resolution 1244 vested in the interim civil administration over Kosovo “all legal and executive powers, including the administration of the judiciary”: see the report of the UN Secretary General on Kosovo dated 12 July 1999. The report confirmed that UNMIK, through the Special Representative, was:

“Empowered to regulate within the areas of his responsibility laid down by the Security Council in its Resolution 1244 (1999). In doing so, he may change, repeal or suspend existing laws to the extent necessary for the carrying out of his functions, or where existing laws are incompatible with the mandate, aims and purposes of the interim civil administration …”

It follows that the immunity conferred under UNMIK Regulation 2000/47 became part of the substantive law of Kosovo.

In addition to the two critical documents analysed above, there was established the KFOR draft Theatre Claims Policy which set out procedures for “prompt” processing of claims as well as annexing sample guidance forms for all claims arising under the KFOR claims process. This was set up in accordance with Section 7 of the UNMIK Regulation 2000/47 to provide a remedy under the scheme for those “harmed by negligent or other wrongful conduct, which can be attributed to NATO/KFOR personnel”. The first draft Theatre Claims Policy was superseded by a revised policy entitled “HQ KFOR Main Standard Operating Procedure 3023” which with a series of annexes set out procedures for making claims in a timely fashion.

The immunities set out in the two key instruments (the Joint Declaration and Regulation 2000/47) are said by the Defendant to operate as a bar from the jurisdiction of the local courts in Kosovo. As the Claimants pursue these claims against the Defendant directly, in the English courts, on the basis that Kosovan law is the applicable law, claims which are barred under Kosovan law cannot be pursued in the English courts.

As a secondary point, it is argued that it is abusive as a matter of English procedural law to pursue the claims and seek compensation in an English court, when there was established at the time a claims commission regime set up in Kosovo, which itself must be seen as alternative remedy to such claims as these.

I have received in evidence two written reports from experts on the law of Kosovo, Dr Grusic on behalf of the Claimant, and Dr Djeric on behalf of the Defendant. Dr Djeric is explicit in his view of the immunity under Regulation 2000/47. He states:

“Regulation 2000/47 provides that it should be deemed to have entered into force on 10 June 1999. Further, it provides it “shall supersede any provision in the applicable law which is inconsistent with it”. By this the regulation not only reaffirms that, as an UNMIK regulation, it has precedence over the law in Kosovo on 22 March 1989, but also establishes its precedence over any other UNMIK regulation.”

Dr Grusic does not address the effect of the immunity conferred by Regulation 2000/47. This is likely to be because he was not asked to. As his instructions recite:

“The questions I was asked to answer are essentially: (1) whether or not Yugoslav/Serbian law, as it stood in 1989 and 1999, would give rise to the finding of liability in tort of the Ministry of Defence as argued by the Claimants in their amended particulars of claim … and (2) whether or not the Claimants’ claim is time barred under Yugoslav/Serbian law as it stood in 1989 and 1999.”

The Defendant therefore argues in reliance on the text of the regulation, and the view of Mr Djeric, that the immunity conferred by Regulation 2000/47 not only became part of the applicable law of Kosovo as from its inception, but also had precedence over all provisions where there was any inconsistency. The Defendant relies on this immunity as not merely a procedural immunity barring the bringing of claims in Kosovo but as a substantive immunity. Had the Defendant been sued in the Kosovan courts, two answers could legitimately have been advanced: firstly, it is not lawful to sue in the Kosovan court and secondly, the immunity barred any tort claim as a matter of the substantive applicable law.

The Claimants’ position is that the immunity is exclusively a matter of jurisdiction. It does not follow that there is immunity in the English courts. The Claimants rely on the fact that both the declaration and regulation confirm that the sending state retains jurisdiction in civil matters:

“KFOR personnel shall be subject to the exclusive jurisdiction of their respective sending state.”

Therefore claims against UK troops as part of KFOR were to be brought in the courts of this jurisdiction. The Claimants suggest that this is a “well-understood position”. State immunity is not intended to result in impunity but operates rather as a jurisdiction allocating rule.

The Claimants also rely upon the decision in Al-Jedda v UK in the ECtHR, and in particular paragraphs 101 and 102, for the proposition that a UN Security Council resolution does not entitle States to breach fundamental rights which, by definition, fall outside the UN Security Council licence. As with Article 105(1) of the UN Charter, the “privileges and immunities” enjoyed by the organisation are only those which “are necessary for the fulfilment of its purposes” and breach of fundamental legal norms, such as Article 2 or Article 3 of the European Convention, cannot be held to be within the fulfilment of the organisation’s purposes and hence must be outwith any immunity.

On this last point the Defendant agrees, but argues that such a bar under Kosovan law is not inconsistent with the principle in Al-Jedda. They continue:

“The immunity/abuse argument has nothing to do with alleged breaches of fundamental human rights norms (including those that cannot be derogated from, e.g. Article 3). They stand or fall on the ECHR/HRA arguments already dealt with. … The immunity is relied upon as a bar to the Kosovan law tort claims.”

The Defendant goes on to emphasise the distinction between the character of the immunity conferred on KFOR as a body and on the other hand “KFOR personnel”. The immunities are not “co-extensive”. The immunity of KFOR personnel is conceded to be jurisdictional, whereas the terminology of the KFOR immunity is expressed to include immunity from “any legal process”. The difference of language underpins the substantive nature of the KFOR immunity.

The Claimants reply that all immunities of this kind are procedural. The exemption of KFOR from the jurisdiction of the Kosovo courts did not mean exemption from the laws of Kosovo. The Claimants rely upon the decision of the International Court of Justice entitled “Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening)” judgment of 3 February 2012. In paragraph 58, the Court was considering the nature, extent and temporal application of State immunity as a part of customary international law. They observed:

“Moreover, as the Court has stated (in the context of the personal immunities accorded by international law to foreign ministers), the law of immunity is essentially procedural in nature (Arrest Warrant of 1 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, I.C.J. Reports 2002, p. 25, para. 60). It regulates the exercise of jurisdiction in respect of particular conduct and is thus entirely distinct from the substantive law which determines whether that conduct is lawful or unlawful.”

The immunity, say the Claimants, protects the agents of one State from the courts of another State rather than providing immunity or impunity for the agent in State courts, see The Law of State Immunity, Fox and Webb (2013) pages 26-18.

The Claimants also rely upon the decision of the Court of Appeal in Serdar Mohammed v Ministry of Defence [2015] EWCA Civ 843. It will be recalled that in that case the Court of Appeal distinguished the position of KFOR in Kosovo from the position of British forces acting as part of ISAF in Afghanistan. Attribution of the actions of KFOR to the United Nations was accepted (paragraph 65) but attribution of the actions of ISAF to the UN was not accepted. In that context, the Court considered the question whether the Secretary of State could invoke the immunities of the United Nations between paragraphs 73 and 81. During the course of the appeal, the Court asked counsel for the Defendant whether the Secretary General of the United Nations had been informed that the Secretary of State was seeking to rely on the general UN immunity set out in section 22 of the Convention on the Privileges of the United Nations, and was told that the General Secretary had not been so informed. On that indication, the Court requested that the Secretary General be notified of the claims. The UN Under-Secretary General for Legal Affairs replied, informing the Court that:

“The 1946 Convention on the Privileges and Immunities of the United Nations applies to Security Council subsidiary organs such as the United Nations Peacekeeping Operations. It does not, however, apply to operations authorised by the Security Council and conducted under the control of States or regional organisations. Consequently, the 1946 Convention … does not apply as such to ISAF and its personnel.”

In the instant claim, I have already found that the actions of KFOR fall to be attributed at law to the United Nations. As I have indicated, that is sufficient to avoid liability on the part of the Defendant. The question of any consequential immunity because of that conclusion becomes redundant. Moreover, the Defendant does not seek to rely upon the immunity in Section 22 of the General Convention but upon the specific immunities laid down for KFOR. In the end, therefore, I am not clear that the observations of the Court of Appeal in Serdar Mohammed carry this question any further.

Some of the details of the compensation claim scheme are in my view significant for the claims of abuse of process. The relevant policy documents for claims against BRITFOR were the KFOR draft theatre claims policy and the HQ KFOR Main Standard Operating Procedures. The BRITFOR claims office in Kosovo apparently commenced operations on the basis of the policy documents in November 2001. The compensation scheme permitted claims arising out of the deaths of family members. The KFOR draft Theatre Claims Policy confirmed that “damages resulting from operational necessities in pursuance of KFOR’s mandate and related operations plans in Kosovo after 12 June 1999 were excluded claims for purposes of the compensation scheme. Appendix 1 to the draft Theatre Claims Policy contained a claim form and a letter for potential claimants, setting out the relevant procedure. The procedure stipulated that:

“A claim should normally be filed within 90 days of discovery of the damage. However, if you have a legitimate reason for a delay, the claim may be accepted and processed.”

Adjudication guidelines were set out which stipulate that liability for claims will be determined based on local law and regulation. The HQ KFOR main standard operating procedures was adopted in final form on 22 March 2003. The latter superseded the draft Theatre Claims Policy but had very similar features. Under one scheme or the other claims could be brought in respect of matters from 12 June 1999.

The Defendant argues that the foreign law claims here arise from the deaths of family members, rightly falling within the scope of the Commission scheme. This would and should have enabled “those with claims for loss or damage to bring such claims forward and obtain prompt compensation for their losses in Kosovo despite the fact that such claims were barred from being brought in the Kosovan courts”. In such circumstances, the Defendant submits that the instant claims are a subversion of the claims commission scheme and as such constitute an abuse of process comparable to that identified in Johnson v Gore Wood & Co [2002] 2 AC 1.

The Claimant’s response to the implication of the compensation scheme can be summarised as follows. The scheme was not well known and the Claimants were unaware of it, having themselves been displaced from Kosovo in 1999. The Claimants’ submissions continue:

“In the protracted attempts to find information and redress there was not one reference to the existence of a compensation scheme/policy.”

As a matter of ECHR law, the case of Yukos v Russian (2014) EHRR SE 12 establishes that an alternative mechanism poses a jurisdictional bar only if the relevant applicants have actually made claims in the alternative procedure. In Yukos there were such parallel claims but yet the Court nevertheless enfranchised the claim. The Claimants submit that a “similar approach should be taken at the domestic level”. The Claimants say it is for the Defendant to establish that there was an available and effective remedy that should have been exhausted: see McFarlane v Ireland No. 31333/06, 10 September 2010, and Scoppola v Italy (No. 2) No. 10249/03, 17 September 2009. The Claimants also point out that there is no evidence as to the practical workings of this scheme. We do not have evidence as to how it was publicised, how often used, how accessed, or indeed any other evidence as to its actual operations.

Before setting out my conclusions on this issue, I have read with interest the case of Bici v Ministry of Defence [2004] EWHC 786. This is an instructive case, although it may be of no more effect. The two Claimants sued for damages for personal injury arising out of an episode in Pristina on 2 July 1999. One was injured physically and the other psychologically in an episode where two other men died, in all cases as a result of shooting by British soldiers. Mr Justice Elias set the scene for the case in paragraph 2 of the judgment as follows:

“2.

It was ordered by the District Judge, in accordance with agreement between the parties, that the defendant's liability should be determined according to English law pursuant to s 12 of the Private International Law (Miscellaneous Provisions) Act 1995, and that there should be a separate trial on the issue of liability. The defendant has conceded that it is vicariously liable for any wrongs committed by any of the soldiers. The Crown retained command of the British forces notwithstanding that they were acting under the auspices of the UN.”

The judge proceeded to consider the merits of the case and reach conclusions on liability applying English tort law.

This same Defendant, resisting the claim in Bici v Ministry of Defence, took no point on attribution. The claim was not framed around the ECHR and so the question of the jurisdiction of the ECHR did not arise. The Defendant took no point on immunity, either directly in relation to the terms of the immunity or in reliance upon the compensation scheme. There is no indication from the report that the compensation scheme was ever raised. The matter was tried on English tort law, and the Defendant accepted vicarious liability.

It is helpful to begin by focussing on the breaches of foreign law alleged by the Claimants in paragraph 217 of the further re-amended Particulars of Claim. The Particulars are expressed in general terms. Particular 1 alleges that the Defendant and/or his agent “failed to adequately fulfil the role of the police and make plans for and provide for public safety, security and order”. Particular 2 recites a failure “to investigate loss of life and injury”. Particular 3 alleges that “intentionally or negligently [the Defendant] caused loss and injury to the Claimants … by failing to establish a secure environment and/or through activities generating increased danger for the Claimants and the class they represent, namely the ethnic minority population of Kosovo”. The remaining particulars are in a very similar vein. Particular 4 alleges failures “as a result of the long-standing relationship with and training of the KLA, [the Defendant] generated increased danger for the minority of the population.” Particular 7 alleges that the Defendant “and her employees intentionally or negligently failed to address injury and loss to the Claimants”. Particular 10 alleges a failure through a refusal “to render necessary aid to the Claimants where their life or health were obviously threatened”.

There is no Particular linked in any identifiable way to the specific events leading to the death or abduction of any of the Claimants’ relatives. There is no claim based on the actions of individuals for which the Defendant is vicariously liable.

I am not impressed by the arguments advanced by the Defendant based upon the KFOR compensation scheme (in either of its successive forms). There is no evidence before me capable of establishing the scheme as being a practical opportunity for individuals to gain compensation. There is nothing to show that the scheme existed in real life, as opposed to existence on paper. Moreover, it must have been fully in the contemplation of the Defendant that a great proportion of those who might consider that they had claims under the scheme would not come to know of it, in the prevailing circumstances. The displacement of individuals and the dislocation of communications were overwhelming, and indeed critical to the problems faced by KFOR.

As Lord Bingham said in a famous passage from his speech in Johnson v Gore Wood [2002] 2 AC 1:

“It is, however wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merit-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all the possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not.”

I reject any claim of abuse of process based on the compensation scheme.

I turn to the specific immunities claimed as a result of the Agreement and Regulation. The remaining point at issue is whether the Defendant is immune from action for its direct liability, as opposed to vicarious liability, for allegedly tortious acts or omissions. On balance I find that such an immunity is established. That was clearly the intention in the agreement and regulation. The only expert opinion before the Court is to the effect that these measures were within the legislative competency of the SRSG. Given that the immunity is not said to avoid liability under the European Convention, or indeed any other law which might properly be described as a jus cogens, I see no reason why this immunity should not be given its intended legal effect. Clearly, if any matter currently framed as a breach of the law of Kosovo might be established as a breach of the Convention, then subject to the other matters dealt with in this judgment, this immunity would not operate to prevent action against the Defendant.

I therefore conclude this issue too in favour of the Defendant.

In due course, an Order must be drawn up, once the parties have considered this judgment and its effects.