THE EUROPEAN COURT OF HUMAN RIGHTS – UNIVERSALIST ASPIRATIONS OF PROTECTION IN THE MIDDLE OF THE EDGE OF OCCUPATION

Abstract

This current commentary considers the case of Al-Saadoon and Mufdhi v the United Kingdom (a recent decision of the European Court of Human Rights (ECtHR)) and the issues upon which it turns. It raises the question of whether an occupying force has an obligation to protect the human rights of those under occupation. The inherent tensions, conflicts, contradictions, and limits posed in and by such a question are obvious. The occupying force – the UK – in this case constituted itself as part of the Multi-National Force (MNF) and invaded Iraq in 2003. The invasion and occupation was subsequently held to be illegitimate. The question of whether Iraqi citizens have a right to protection under any International Convention or treaty or any human rights instrument is a question of considerable importance and was the question so considered, in the case of Al-Saadoon and Mufdhi, in the case of Al-Skeini, and whether British forces were so protected was considered in R (Smith) v Secretary of State for Defence, to which I shall refer later.