Read on Twitter
The European Human Rights Law Review has published my article '"Impossible or Disproportionate Burden": The UK's Approach to the Investigatory Obligation under Articles 2 and 3 ECHR'. If you have a Westlaw subscription, the full text is available here: https://www.westlaw.com/Document/I60DD5F10100A11EBA5C482734D515FFA/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=cblt1.0
The article was very much improved through discussions with @LioraLazarus @Annelen_Micus @__RichardMartin Leah Trueblood, @echrhawk @NMavronicola and @PaulFScott. Thank you to @JonathanCoopr and anonymous reviewers for the swift and constructive peer review process. (2/7)
In this article, I argue for a rigorous engagement by the UK executive and domestic courts with the European Court of Human Rights’ development of the positive investigatory obligation under arts 2 and 3 of the European Convention on Human Rights (ECHR) (3/7).
The UK has sought to expand the dicta from Osman v United Kingdom that positive obligations should not be interpreted to impose an 'impossible or disproportionate burden' on domestic authorities, while under-emphasising the criteria for effective investigations (4/7).
I had found frequent, prima facie inappropriate references to 'proportionality' in IHAT and SPLI decisions to close investigations into alleged unlawful killings, torture and ill-treatment in Iraq. (5/7)
This finding does not suggest that the UK misunderstands Articles 2 and 3 as qualified rights to which a proportionality analysis might apply. Instead, it reflects a cost/benefit, efficiency-based standard for investigations introduced in the Al-Saadoon litigation in 2016 (6/7).
The article highlights inconsistencies in domestic cases, and an undesirable divergence between these and the European Court’s jurisprudence. I argue that 'impossible or disproportionate burden' must be evidenced and narrowly construed (7/7).
