How have UK and Scottish courts historically treated extraterritorial seizures by foreign military forces?
Executive summary
UK and Scottish courts have approached extraterritorial seizures by foreign military forces cautiously, anchoring decisions in established legal presumptions against extraterritoriality while recognising exceptions where the state has "authority and control" over individuals abroad; Strasbourg jurisprudence (notably Al‑Skeini) has been pivotal in expanding domestic accountability for military operations overseas [1] [2]. Scotland's government and courts have consistently emphasised that human‑rights protections follow where the UK exercises meaningful jurisdiction, even as domestic statutes and immunities—such as visiting‑forces rules—create complex overlaps with military and international law [3] [4].
1. Courts start with a presumption against extraterritorial effect, but do not stop there
Domestic judges in the UK have long applied a presumption that legislation is not intended to reach beyond the British Isles, and the Supreme Court recently reiterated that presumption when rejecting extraterritorial application of the public‑sector equality duty in Marouf (R (Marouf) v Secretary of State) [1]; however, that presumption is a rule of statutory construction, not a blanket bar to judicial scrutiny of foreign acts that engage UK responsibility.
2. European Court of Human Rights jurisprudence forced a doctrinal pivot in domestic courts
The ECtHR’s rulings — most notably in Al‑Skeini and related cases — held that where UK forces exercised authority and control over persons abroad, the UK was under the Convention’s jurisdiction and thus obliged to investigate deaths or ill‑treatment, a finding that domestic and international commentators have treated as a milestone in extraterritorial human‑rights enforcement [2] [5]. Domestic courts have had to reconcile that Strasbourg test of effective control with the presumption against extraterritoriality, producing a layered doctrine: absent clear statutory language, UK law will ordinarily not operate extraterritorially, but human‑rights obligations may nonetheless attach when operational facts create jurisdictional links [1] [5].
3. Scottish authorities emphasise continuity with ECtHR case‑law and protection for service personnel
The Scottish Government’s responses to reform proposals have been explicit that current practice on extraterritorial jurisdiction — which follows ECtHR principles — should largely remain intact, stressing both the need to protect rights abroad and to ensure domestic remedies are available for UK service personnel when the state assumes control overseas [3]. That political stance signals a reluctance in Scotland to narrow extraterritorial reach even where Westminster debates reforms to the Human Rights Act and the Overseas Operations Act have sought to limit judicial oversight [6] [3].
4. Statutes and agreements create carve‑outs and competing jurisdictions in criminal matters
Criminal jurisdiction is fragmented: the Visiting Forces Act 1952 and related Orders can allocate primary criminal jurisdiction to a visiting force’s service courts for offences by their personnel, meaning UK courts may lack primary competence in some cases; yet where visiting forces’ service courts decline jurisdiction or the offence falls outside the Act’s scope, UK courts remain able to act [4]. Similarly, domestic statutes dealing with extraterritorial offences, extradition procedures and cooperation with international tribunals shape when and how UK and Scottish courts can investigate seizures or arrests with foreign military involvement [7] [8].
5. Courts look to "authority and control" and to international legality, not just geography
Judicial analysis has moved from a territorial to a functional test: courts ask whether the UK (or another state) exercised authority and control over individuals or sites such that human‑rights duties arose — a test that captured UK operations in Iraq and produced liability for failures to investigate deaths [2] [5]. At the same time, courts weigh international law contexts — for example, UN Security Council mandates or status‑of‑forces agreements — which can complicate attribution and may be invoked by governments to justify actions or to assert that accountability should lie elsewhere [2] [4].
6. The result is a pragmatic, contested patchwork with political overtones
The doctrinal outcome in UK and Scottish courts is a pragmatic, fact‑sensitive patchwork: strong protections where effective control can be shown; statutory or treaty carve‑outs where visiting forces, extraterritorial powers, or international mandates create competing claims; and an ongoing political battle over whether to restrict judicial reach in the name of operational freedom or to preserve robust oversight to meet human‑rights obligations [1] [4] [6]. Reporting and government submissions reveal explicit agendas on both sides — defence of armed forces’ discretion versus insistence on accountability in line with ECtHR precedent [3] [6].