Tort Law and State Accountability for Overseas Violations of International Human Rights Law and International Humanitarian Law: The UK Perspective

Uglješa Grušić

doi:10.5334/ujiel.545

Abstract

This article argues that tort law has a role to play in holding the British government to account for overseas violations of international human rights law and international humanitarian law. The context of tortious claims for overseas violations of international human rights law and international humanitarian law brings to the fore, on one hand, issues of attribution and Crown and foreign acts of State and, on the other hand, issues of private international law. This article describes the approach of UK courts to key issues raised by tortious claims for overseas violations of international human rights law and international humanitarian law, namely subject-matter jurisdiction and the law applicable to the merits.

Highlights

This contribution to the special issue of the Journal dedicated to the Mothers of Srebrenica litigation deals with the use in the UK of tort law as a mechanism for holding the British government to account for violations of international human rights law and international humanitarian law that occur in the course of external exercise of British public power
The Human Rights Act 1998 (‘HRA’) is the principal mechanism for holding the British government to account for human rights violations, tort law is being used for this purpose
This article shows that in a case involving an overseas violation of international human rights law or international humanitarian law by British officials or the British government, several kinds of claim can be brought under English law

Summary

INTRODUCTION

This contribution to the special issue of the Journal dedicated to the Mothers of Srebrenica litigation deals with the use in the UK of tort law as a mechanism for holding the British government to account for violations of international human rights law and international humanitarian law that occur in the course of external exercise of British public power. The Conservative Party has more recently backtracked on this pledge, the possibility of repeal of the HRA has led to a renewed focus on the protective potential of ‘common law constitutionalism’.69 This discussion of the use of tort law as a mechanism for holding the British government to account for overseas violations of international human rights law and international humanitarian law can be regarded as contributing to this debate. In only one of those two cases has the court found, after a full trial, that British soldiers violated human rights and international humanitarian law overseas.86 These claims were successful in a broader sense since they led to increased political pressure on the government, to an increased awareness of the allegations of the government’s wrongs, to full public statements, on the record, of alleged wrongs, to settlements and, in one instance, to an apology from the Prime Minister in Parliament.. Two claims have resulted in judgments declaring the British government liable. In only one of those two cases has the court found, after a full trial, that British soldiers violated human rights and international humanitarian law overseas. these claims were successful in a broader sense since they led to increased political pressure on the government, to an increased awareness of the allegations of the government’s wrongs, to full public statements, on the record, of alleged wrongs, to settlements and, in one instance, to an apology from the Prime Minister in Parliament. The Dutch experience with cases concerning Srebrenica offers further evidence that tort law has a role to play in achieving the accountability of the State for overseas violations of international human rights law and international humanitarian law

KEY ISSUES

CONCLUSION