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You are here: BAILII >> Databases >> European Court of Human Rights >> Al-Saadoon and Mufdhi v the United Kingdom - 61498/08 [2009] ECHR 1040 (30 June 2009) URL: http://www.bailii.org/eu/cases/ECHR/2009/1040.html Cite as: [2009] ECHR 1040, (2009) 49 EHRR SE11

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FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 61498/08
by Al-Saadoon and Mufdhi
against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 30 June 2009 as a Chamber composed of:

Lech Garlicki, President,
Nicolas Bratza,
Giovanni Bonello,
Ljiljana Mijović,
Ján Šikuta,
Mihai Poalelungi,
Nebojša Vučinić, judges,

and Lawrence Early, Section Registrar,

Having regard to the above application which was lodged on 22 December 2008,

Having regard to the decision of the Acting Section President of 30 December 2008 to indicate an interim measure to the Government of the United Kingdom of Great Britain and Northern Ireland (“the Government”),

Having regard to the Chamber’s decisions of 17 February 2009 to refuse a further application by the applicants for an interim measure under Rule 39 of the Rules of Court, to give the case priority under Rule 41 and to expedite the procedure,

Having regard to the Acting Section President’s decision of the same day to communicate the case to the Government and to examine the merits of the application at the same time as its admissibility (Article 29 § 3),

Having regard to the Acting Section President’s decision of 20 March 2009 to grant leave to the Equality and Human Rights Commission to intervene as a third party (Article 36 § 2 of the Convention and Rule 44 § 2) and his decision of 25 March 2009 to grant leave to intervene jointly as third parties to the Bar Human Rights Committee of England and Wales, British Irish Rights Watch, the European Human Rights Advocacy Centre, Human Rights Watch, the International Commission of Jurists, the International Federation for Human Rights, JUSTICE, Liberty and REDRESS (“the group of interveners”),

Having regard to the observations submitted by the Government, the applicants and the third parties,

Having deliberated in private on 30 June 2009,

Delivers the following decision, which was adopted on that date:

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. The occupation of Iraq

“Section 6: Criminal Detentions

(1) Consistent with the Fourth Geneva Convention, the following standards will apply to all persons who are detained by Coalition Forces solely in relation to allegations of criminal acts and who are not security internees (hereinafter ‘criminal detainees’):

(a) Upon the initial induction into a Coalition Force detention centre a criminal detainee shall be apprised of his rights to remain silent and to consult an attorney.

(b) A criminal detainee suspected of a felony offence may consult an attorney 72 hours after induction into a Coalition Force detention centre.

(c) A criminal detainee shall be promptly informed, in writing, in a language which they understand, of the particulars of the charges preferred against them.

(d) A criminal detainee shall be brought before a judicial officer as rapidly as possible and in no instance later than 90 days from the date of induction into a Coalition Force detention centre.

(e) Access to detainees shall be granted to official delegates of the international Committee of the Red Cross (ICRC). ...

(2) Where any criminal detainee held by Coalition Forces is subsequently transferred to an Iraqi Court, a failure to comply with these procedures shall not constitute grounds for any legal remedy or negation of process, but any period spent in detention awaiting trial or punishment shall be deducted from any period of imprisonment imposed.

Section 7: Coalition Force Security Internee Process

(1) Consistent with the Fourth Geneva Convention, the following standards will apply to all persons who are detained by Coalition Forces where necessary for imperative reasons of security (hereinafter ‘security internees’):

(a) In accordance with Article 78 of the Fourth Geneva Convention, Coalition Forces shall, with the least possible delay, afford persons held as security internees the right of appeal against the decision to intern them.

(b) The decision to intern a person shall be reviewed not later than six months from the date of induction into an internment facility by a competent body established for the purpose by Coalition Forces.

(c) The operation, condition and standards of any internment facility established by Coalition Forces shall be in accordance with Section IV of the Fourth Geneva Convention.

(d) Access to internees shall be granted to official delegates of the International Committee of the Red Cross (ICRC). ...

(e) If a person is subsequently determined to be a criminal detainee following tribunal proceedings concerning his or her status, or following the commission of a crime while in internment, the period that person has spent in internment will not count with respect to the period set out in Section 6(1)(d) herein.

(f) Where any security internee held by Coalition Forces is subsequently transferred to an Iraqi Court, a failure to comply with these proceedings shall not constitute grounds for any legal remedy, but may be considered in mitigation in sentence.”

“to establish an Iraqi Special Tribunal (the ‘Tribunal’ [subsequently known as the ‘Iraq High Tribunal’ or ‘IHT’]) to try Iraqi nationals or residents of Iraq accused of genocide, crimes against humanity, war crimes or violations of certain Iraqi laws, by promulgating a statute, the proposed provisions of which have been discussed extensively between the Governing Council and the CPA ...”

“Section 1: Purpose

(1) This Memorandum implements CPA Order No. 7 by establishing procedures for applying criminal law in Iraq, recognizing that effective administration of justice must consider:

(a) the continuing involvement of the Multinational Force (MNF) in providing critical support to some aspects of the administration of justice;

(b) the need to transition from this support;

(c) the need to modify aspects of Iraqi law that violate fundamental standards of human rights;

(d) the ongoing process of security internee management in accordance with the relevant and appropriate standards set out in the Fourth Geneva Convention which shall be applied by the MNF as a matter of policy in accordance with its mandate.

...

Section 5: Criminal Detentions

(1) A national contingent of the MNF shall have the right to apprehend persons who are suspected of having committed criminal acts and are not considered security internees (hereinafter ‘criminal detainees’) who shall be handed over to Iraqi authorities as soon as reasonably practicable. A national contingent of the MNF may retain criminal detainees in facilities that it maintains at the request of the appropriate Iraqi authorities based on security or capacity considerations. Where such criminal detainees are retained in the detention facilities of a national contingent of the MNF the following standards will apply:

(a) Upon the initial induction into the detention centre a criminal detainee shall be apprised of his rights to remain silent and to consult an attorney by the authority serving an arrest warrant.

(b) A criminal detainee suspected of a felony offence may consult an attorney 72 hours after induction into the detention centre.

(c) A criminal detainee shall be promptly informed, in writing, in a language which they understand, of the particulars of the charges preferred against them by the authority serving an arrest warrant.

(d) A criminal detainee shall be brought before a judicial officer as rapidly as possible and in no instance later than 90 days from the date of induction into the detention centre.

(e) Access to detainees shall be granted to the Iraqi Prisons and detainee Ombudsman (hereinafter ‘the Ombudsman’). ...

(f) Access to detainees shall be granted to official delegates of the international Committee of the Red Cross (ICRC). ...

(2) Where any criminal detainee held by a national contingent of the MNF is subsequently transferred to an Iraqi Court, a failure to comply with these procedures shall not constitute grounds for any legal remedy or negation of process, but any period spent in detention awaiting trial or punishment shall be deducted from any period of imprisonment imposed.

Section 6: MNF Security Internee Process

(1) Any person who is detained by a national contingent of the MNF for imperative reasons of security in accordance with the mandate set out in UNSCR 1546 (hereinafter ‘security internees’) shall, if he is held for a period longer than 72 hours, be entitled to have a review of the decision to intern him.

(2) The review must take place with the least possible delay and in any case must be held no later than 7 days after the date of induction into an internment facility.

(3) Further reviews of the continued detention of any security internee shall be conducted on a regular basis but in any case not later than six months from the date of induction into an internment facility.

(4) The operation, condition and standards of any internment facility established by the MNF shall be in accordance with Section IV of the Fourth Geneva Convention.

(5) security internees who are placed in internment after 30 June 2004, must in all cases only be held for so long as the imperative reasons of security in relation to the internee exist and in any case must be either released from internment or transferred to the Iraqi criminal jurisdiction not later than 18 months from the date of induction into an MNF internment facility. Any person under the age of 18 interned at any time shall in all cases be released not later than 12 months after the initial date of internment.

...

(9) If a person is subsequently determined to be a criminal detainee following a review of his or her status, or following the commission of a crime while in internment, the period that person has spent in internment will not count with respect to the period set out in Section 5(2) herein ...”

“Section 2: Iraqi Legal Process

(1) Unless provided otherwise herein, the MNF, the CPA, Foreign Liaison Missions, their Personnel, property, funds and assets, and all International Consultants shall be immune from Iraqi legal process.

(2) All MNF, CPA and Foreign Liaison Mission Personnel, and International Consultants shall respect the Iraqi laws relevant to those Personnel and Consultants in Iraq including the Regulations, Orders, Memoranda and Public Notices issued by the Administrator of the CPA.

(3) All MNF, CPA and Foreign Liaison Mission Personnel, and International Consultants shall be subject to the exclusive jurisdiction of their Sending States. They shall be immune from any form of arrest or detention other than by persons acting on behalf of their Sending States, except that nothing in this provision shall prohibit MNF Personnel from preventing acts of serious misconduct by the above-mentioned Personnel or Consultants, or otherwise temporarily detaining any such Personnel or Consultants who pose a risk of injury to themselves or others, pending expeditious turnover to the appropriate authorities of the Sending State. In all such circumstances, the appropriate senior representative of the detained person’s Sending State in Iraq shall be notified immediately.

(4) The Sending States of MNF Personnel shall have the right to exercise within Iraq any criminal and disciplinary jurisdiction conferred on them by the law of that Sending State over all persons subject to the military law of that Sending State.

...”

Section 9(1) of the Order provided for the inviolability of MNF facilities, as follows:

“The MNF may use without cost such areas for headquarters, camps or other premises as may be necessary for the conduct of the operational and administrative activities of the MNF. All premises currently used by the MNF shall continue to be used by it without hindrance for the duration of this Order, unless other mutually agreed arrangements are entered into between the MNF and the Government. While any areas on which such headquarters, camps or other premises are located remain Iraqi territory, they shall be inviolable and subject to the exclusive control and authority of the MNF, including with respect to entry and exit of all personnel. The MNF shall be guaranteed unimpeded access to such MNF premises. Where MNF Personnel are co-located with military personnel of Iraq, permanent, direct and immediate access for the MNF to those premises shall be guaranteed.”

B. The transfer of authority from the CPA to the Iraqi Government and the United Kingdom-Iraq Memorandum of Understanding

“Section 1: Purpose and Scope

This Memorandum of Understanding (MoU) sets out the authorities and responsibilities in relation to criminal suspects. For the purpose of this MOU, ‘criminal suspects’ are: ...

(c) individuals who are suspected of having committed criminal acts who are held at the request of the Iraqi authorities.

Section 2: Authorities and Responsibilities Generally

1. The Interim Iraqi Government (and any successor) has legal authority over all criminal suspects who have been ordered to stand trial and who are waiting trial in the physical custody of [the United Kingdom contingent of the MNF] in accordance with the terms of this Memorandum of Understanding (MoU).

2. The [United Kingdom contingent of the MNF] has a discretion whether to accept any particular criminal suspect into its physical custody and whether to continue to provide custody for a suspect who is in its physical custody at the time this MoU comes into operation or who, at any time in the future, comes into its custody. ...

Section 3: Authorities and Responsibilities in relation to individual criminal suspects

1. In relation to any criminal suspect being held in the physical custody of the [United Kingdom contingent of the MNF], the Ministry of Justice will:

(a) provide [the United Kingdom contingent of the MNF] with a written request for his delivery up to attend a court appearance or for any other purpose connected with the criminal process and will give as much advance notice of the proposed date when the presence of the suspect is required as is practicable.

...

(d) ensure that any criminal proceedings commenced against a criminal suspect progress without undue delay.

2. In relation to any criminal suspect being held in the physical custody of [the United Kingdom contingent of the MNF], [the United Kingdom contingent of the MNF]:

(a) will provide humane treatment and will not subject any criminal suspect to torture or to cruel, inhuman or degrading treatment or punishment;

...

(c) will take appropriate steps to ensure that the conditions of custody meet the standards set out in CPA Memoranda Nos. 2 and 3;

...

3. In relation to any criminal suspect apprehended by [the United Kingdom contingent of the MNF] and handed over to the Iraqi authorities as soon as reasonably practicable, in accordance with section 5 of the CPA Memorandum No. 3 (Revised), the Ministry of Justice and the Ministry of the Interior, as the case may be:

(a) will provide humane treatment and will not subject any criminal suspect to torture or to cruel, inhuman or degrading treatment or punishment; and

(b) will hold the criminal suspect in accordance with Iraqi law.

4. In relation to any criminal suspect transferred to the Ministry of the Interior or the Ministry of Justice by [the United Kingdom contingent of the MNF] from its detention facilities, the Ministry of Justice and the Ministry of the Interior, as the case may be, will:

(a) inform [the United Kingdom contingent of the MNF] before releasing any individual and will comply with any request by [the United Kingdom contingent of the MNF] that [the United Kingdom contingent of the MNF] should reassume custody if,

(i) the individual is wanted for prosecution by any state that has contributed forces to the MNF for breaches of the laws and customs of war, or

(ii) the internment of the individual is necessary for imperative reasons of security,

in which case [the United Kingdom contingent of the MNF] will assume custody of that individual after consultation between the Participants to reach an agreed solution. ...

(c) provide an assurance that during any temporary periods when a suspect is in the hands of the Iraqi authorities whether at the [the United Kingdom contingent of the MNF]’s detention facility or elsewhere and at any time following the transfer of a suspect to Iraqi facilities,

(i) the suspect will be treated humanely and will not be subject to torture or to cruel, inhuman or degrading treatment or punishment; and

(ii) the requirements of CPA Orders with respect to co-operation with and reasonable access to be provided to the Iraqi Ombudsman for Penal and Detention Matters and the International Committee of the Red Cross will be adhered to.

5. If [the United Kingdom contingent of the MNF] decides that it is no longer prepared to provide custody facilities for a particular suspect, it shall give notice of this decision to the Ministry of Justice as soon as possible to enable the Ministry of Justice to make other arrangements for the custody of that suspect if it so wishes. The Ministry of Justice will then notify [the United Kingdom contingent of the MNF] of the arrangements it has made or alternatively will indicate that the suspect should be released. [The United Kingdom contingent of the MNF] will then use its best endeavours to enable any such alternative arrangements to be put in place.”

“The Government of Iraq requests that the Security Council should consider extending the mandate of MNF-1 in the light of Iraq’s achievements over the past few years, namely, the strengthened capacity of its Army and security forces and its significant successes in the security, political and economic spheres. A review of the role and authority of MNF-1 will thus be required in order to strike a balance between, on the one hand, the need to extend, one last time, the mandate of the force and, on the other hand, progress made by Iraq in the area of security. In this regard, it is important for Iraq to be treated as an independent and fully sovereign State and, in seeking the aforementioned balance, the following objectives should be highlighted:

...

4. The Government of Iraq will be responsible for arrest, detention and imprisonment tasks. When those tasks are carried out by MNF-1, there will be maximum levels of coordination, cooperation and understanding with the Government of Iraq”.

C. The legal basis for the presence of United Kingdom armed forces in Iraq from 1 January 2009

“Article 1: The forces of the United Kingdom and Northern Ireland are permitted to stay in Iraq to complete the tasks they are given, and for these tasks to end no later than the 31^st of May 2009 and to fully withdraw from Iraq no later than the 31^st July 2009.

...

Article 4: (a) Members of the forces referred to in Articles 1 and 2 of the Law and members of the Ministries of Defence of the countries to which those aforementioned forces belong, who are working with those forces, shall be subject to the jurisdiction of Iraq with the exception of crimes committed by them while on duty which are not committed with intent or do not arise from gross negligence, and with the exception of those committed by them inside agreed facilities and military installations used by them, in which case they shall be subject to the jurisdiction of the country to which they belong.

...

(c) An accused member of the forces or the Ministry of Defence of the countries referred to in Articles 1 and 2 of this Law, shall be held in the custody of the authorities of the country to which the accused belongs. These authorities should make available the accused to the Iraqi authorities for the purposes of investigation and trial.

...

Article 6: The task and activities of the forces referred to in Articles 1 and 2 of this Law and their facilities and military installations during their temporary presence in Iraq are to be specified by the Government of Iraq with the agreement of the governments and parties concerned, providing that these troops do not carry out any operations or military activities within Iraqi land, airspace and waters without prior approval from the Government of Iraq.”

20.  The Iraqi Council of Ministers’ Resolution 50/2008 of 23 December 2008, which took effect from 1 January 2009, authorised the Council of Ministers to take all necessary measures to achieve the withdrawal of forces no later than 31 July 2009 and to regulate their activities in accordance with Resolution 439/2008 in the meantime. It also provided that CPA Order No. 17 (Revised) (see paragraph 13 above) should be suspended until repealed according to standard procedure.

21.  On 30 December 2008 the United Kingdom and Iraqi Governments signed a further Memorandum of Understanding (“the second MoU”), which came into effect on 1 January 2009. It recorded that British forces would complete specified tasks, mainly confined to training and advising Iraqi security forces, no later than 31 May 2009 and withdraw fully no later than 31 July 2009. Paragraph 5 of the second MoU provided that the United Kingdom and Iraqi forces would waive all claims against each other arising out of the specified tasks. The main facilities and military installations to be used by the United Kingdom forces during their temporary presence in Iraq were identified in paragraph 3, but the second MoU did not provide for the inviolability of those premises.

D. Protocol No. 13 to the Convention

E. The applicants’ arrest and detention

F. The referral of the applicants’ cases to the Iraqi courts

“We took the view that there was then a genuine issue, because there had been no decision by any court as to whether or not there was the international law obligation that we say existed or any decision on the question of jurisdiction. That was resolved by the Divisional Court, and thereafter we have said it is not now possible for us to give that undertaking [not to transfer them].”

G. The judicial review proceedings

1. The Divisional Court

“... I recognised that, if possible, it would be desirable for UK forces to be in a position to continue to hold the Claimants for a period of time whilst this litigation is resolved. I therefore considered with colleagues whether it would be appropriate to raise this issue with the Iraqi negotiating team. I cannot comment in detail on sensitive inter-governmental negotiations, but the judgment was made that to introduce the issue of UK forces continuing to hold detainees, whether generally or specifically in relation to these two Claimants, risked adversely affecting the conduct and outcome of these important and urgent negotiations.

Furthermore, the judgment was made that raising the issue would not in any event have resulted in any agreement with the Iraqi authorities whereby the Claimants remained in the custody of the British forces in Iraq, still less that they would agree to the removal of the Claimants from Iraq. Given the fact that the Iraqis are seeking the transfer of detainees from the US to Iraq and the fact that these two Claimants are Iraqi nationals accused of crimes within Iraq and that the Iraqi courts have repeatedly requested the transfer of these two Claimants in order to complete investigations and if appropriate try them, there was no realistic prospect of Iraq agreeing to allow them to remain within the custody of the UK. To have raised the issue would therefore have resulted in my judgment in no change in relation to the position of the Claimants, but would have risked adversely affecting the conduct and outcome of the negotiations with the Government of Iraq.

... I have considered whether there may be any other means whereby UK forces could continue to hold the claimants for a period of time beyond the end of this year pending the outcome of this litigation. Conceivably, we might ask the Government of Iraq to submit draft legislation to the CoR specifically to permit the UK to hold the Claimants indefinitely or pending the outcome of this litigation. Given the facts set out in the previous paragraph, I consider that there is no reasonable prospect that the Government of Iraq would accede to such a request. Furthermore, the process of drafting and passing such legislation would extend beyond the end of this year. And even raising the issue would in my considered opinion risk adversely affecting the passage of the legislation and finalizing of the inter-governmental arrangement.

There is no likelihood in my view of the UK being able to secure any agreement from the Iraqi authorities that we may continue to hold the Claimants either indefinitely or pending the outcome of this litigation.”

“The overall picture which emerges is that, although initially there were deeply unsatisfactory aspects of the IHT and trial environment, which cast doubt on the ability to provide defendants with a fair trial at that time, there have been many significant improvements since then.

... To date the claimants have appeared before the Iraqi courts and have denied the allegations made against them; and there can be no complaint about the way in which the courts have dealt with them. As to the future, looking at the various points individually and cumulatively, the evidence before us falls a long way short of establishing substantial grounds for believing there to be a real risk that a trial of the claimants would involve a flagrant breach of the principles guaranteed by article 6. Thus, even if the Convention were to apply in the normal way, we would reject the claim that transfer of the claimants into the custody of the IHT would be contrary to article 6.”

“Taking the evidence as a whole, we are satisfied that substantial grounds have been shown for believing there to be a real risk of the claimants being condemned to the death penalty and executed, contrary to protocol no. 13, if they are transferred into the custody of the IHT. In particular: (a) the penalties for the offences with which the applicants are charged include the death penalty; (b) there is clear evidence that persons convicted of such offences are liable in practice to be sentenced to death; (c) the matters relied on as mitigating against the imposition of the death penalty are not sufficiently cogent or certain to negative the real risk; (d) in spite of the efforts made on behalf of the Secretary of State, no assurance has been given that the death penalty will not be imposed in this case; and (e) in any event, even if President Aref [the President of the IHT] had given such an assurance, we are not satisfied it would necessarily be effective because he does not have the authority to bind the appeal chamber which would automatically have to consider the appropriate sentence, whatever decision the trial chamber had reached.”

However, the court found that although the death penalty was prohibited by the Convention, it was not yet contrary to internationally accepted norms, at least where it was imposed for serious crimes following conviction at a trial that met minimum standards of fairness. It followed that “however repugnant the death penalty may be within our domestic legal system and under the Convention, its imposition would not be contrary to international law” and the risk that the applicants might be executed did not therefore operate to relieve the United Kingdom of its public international law obligation to transfer them to the custody of the IHT.

“Whilst we have been led to that conclusion by our analysis of the legal principles and the factual evidence, we are seriously troubled by the result, since on our assessment the claimants, if transferred, will face a real risk of the death penalty in the event that they are convicted by the Iraqi court. In all normal circumstances the Convention (as well as the Extradition Act 2003 in extradition cases) would operate to prevent such a result. It arises here only because of the highly exceptional circumstances of the case and the application to them of the principles in R(B) v. Secretary of State for Foreign and Commonwealth Affairs, as we have understood the judgment of the Court of Appeal in that case. ...”

2. The Court of Appeal

“In the course of discussions on Sunday 21 December, Iraqi officials made clear that, even in relation to any proposed authorised tasks, they did not consider it acceptable for UK forces to exercise detention powers after 31 December 2008.

It remains my firm and considered view that, in all the circumstances, there is no likelihood of the UK being able to secure any agreement from the Iraqi authorities that we may continue to hold the Claimants either indefinitely or pending the outcome of this litigation. Further, as I said in my first witness statement, even raising the issue would risk adversely affecting the conduct and outcome of the current negotiations.”

i) On the facts the United Kingdom is not exercising jurisdiction over the appellants within the meaning of ECHR, Article 1. See in particular Bankovic v UK (2001) 11 BHRC 4. In essence the United Kingdom detains the appellants only at the request and to the order of the IHT, and is obliged to return them to the custody of the IHT by force of arrangements made between the United Kingdom and Iraq, and the United Kingdom has no discretionary power of its own to hold, release or return the appellants. They are acting purely as agents of the IHT.

ii) R (B) v Secretary of State for Foreign and Commonwealth Affairs [2005] QB 643 shows that an obligation of this kind to return persons to the host state has to be respected, albeit that the holding state in question is subject to ECHR obligations, unless -- paragraph 88 -- to return the appellants would expose them to a crime against humanity. We are bound by that decision, being a decision of this court.

iii) Neither the death penalty generally, nor the death penalty by hanging, is shown to be a crime against humanity or an act of torture.

iv) Accordingly, even if the United Kingdom is exercising Article 1 jurisdiction, contrary to our opinion, it is obliged to return the appellants to the custody of the IHT. That is so before 31 December 2008; a fortiori after 31 December 2008, when there will be no UN mandate, no provision as between the United Kingdom and Iraq granting inviolability to the British base or allowing for any detention of the appellants by the United Kingdom forces, save to the order of the IHT. In short, the United Kingdom will have no colour of legal power whatever after 31 December to do anything other than return the appellants to the order of the IHT. There will be no power to move the appellants anywhere else, nor indeed to prevent the Iraqis taking the appellants from British custody. British troops could not be ordered to take any steps to prevent that happening. Before 31 December it is true that the base at Basra is inviolable under local arrangements made between the United Kingdom and Iraq, but that inviolability ceases tomorrow. That is why the United Kingdom is thereafter entirely legally powerless to take action other than in compliance with the wishes of the IHT or to resist any action taken by the Iraqi authorities.

v) No freestanding claim against the United Kingdom under customary international law can run, nor is there on the facts any viable claim under ECHR, Article 6.”

“Certainly there are some important issues that have been raised but in the context of this case, having regard to the position that obtains post-31 December 2008, it would not be right to grant permission.”

“It is common ground that the death penalty is a punishment available under Iraqi law for the offences with which the appellants are charged. The Divisional Court held (paragraph 148) that that was enough to give rise prima facie to a real risk of its being applied to the appellants. Accordingly, following the approach commended by the Strasbourg court in Saadi v Italy (Application no. 37201/06, judgment of 28 February 2008), in particular at paragraph 129, the burden effectively shifted to the Secretary of State to show that such a risk was not in fact made out.

Mr Lewis QC for the Secretary of State relied on evidence to the effect that the family of one of the victims had written to President Aref of the IHT to seek clemency for the appellants if they were found guilty. President Aref had earlier invited letters of this kind through the British Embassy, indicating that it would be helpful if the Embassy could waive claims to civil compensation and that he would then pass such letters to the trial chamber for their consideration. Ms Abda Sharif, Legal Adviser and Head of the Justice and Human Rights Section at the British Embassy in Baghdad, has given evidence of legal advice to the effect that the impact of a plea of clemency by the families of the victims in Iraq is likely to be that the Iraqi court ‘will not impose the death penalty in any particular case’. Ms Sharif says that President Aref has confirmed that such a plea for clemency is likely to be an important factor for any court in assessing what sentence would be imposed on the claimants. She also produces a letter from President Aref, given to her at a meeting on 21 October 2008, in which the court’s procedures for considering sentence are described in some detail. The Divisional Court observed (paragraph 155):

‘That letter represents President Aref’s considered written position. It is striking that the letter gives no indication whatsoever that the death penalty would not be or even probably would not be imposed.’

Mr Lewis relied on the evidence of Mr Spillers, an American attorney who was the Rule of Law Liaison to the IHT between July 2008 and 22 December 2008. Mr Spillers had also met President Aref, on 27 October 2008. The President explained the factors which would influence the IHT against imposing a death sentence. These were ‘an admission of the crime by the claimants, a request for forgiveness from the family of the victims, a request for forgiveness of the court for the acts, and a request for leniency from the family of a victim’ (Divisional Court, paragraph 156). Mr Spillers reported the President as indicating that an assurance that the death penalty would not be imposed was ‘implicit’ in his account of these factors.

Mr Spillers has provided a further statement since the Divisional Court’s judgment was delivered. He describes the outcome of the IHT proceedings in what has been called the 1991 Uprising case. The fifteen defendants were all former high-ranking members of Saddam Hussein’s regime charged with crimes against humanity. Three were acquitted. Ten received very substantial terms of imprisonment. Only the remaining two were sentenced to death, including one (‘Chemical Ali’) who was already under sentence of death following an earlier trial.

...

In my judgment there is no sufficient basis for departing from the balanced assessment of the Divisional Court on this point. Mr Spillers’ new evidence concerning the 1991 Uprising case, while helpful to the Secretary of State, is not so substantial as to overturn the lower court’s conclusion. The real risk test is satisfied.”

“The Legal Position Relating to the Appellants’ Detention – Before 31 December 2008

32. Until 31 December 2008 the United Kingdom forces at Basra enjoyed the guarantees of immunity and inviolability provided by CPA Order No. 17 (Revised). But those measures prohibited invasive sanctions; they did not confer executive power. In my judgment, from at least May 2006 until 31 December 2008, the British forces at Basra were not entitled to carry out any activities on Iraq’s territory in relation to criminal detainees save as consented to by Iraq, or otherwise authorized by a binding resolution or resolutions of the Security Council. So much flows from the fact of Iraq’s sovereignty and is not contradicted – quite the reverse – by any of the United Nations measures in the case. Thus the MNF Mandate was extended by the Security Council at Iraq’s express request. The letter requesting its extension (which was attached to Resolution 1790(2007)) expressly stated at paragraph 4, ‘[t]he Government of Iraq will be responsible for arrest, detention and imprisonment tasks’. The various material Security Council Resolutions (1483 (2003), 1546 (2004) and 1790 (2007)) all emphasise the primacy of Iraqi sovereignty. As regards criminal detentions, CPA Memorandum No. 3 (Revised) makes it plan that so far as criminal detainees may be held by any national contingent of the MNF, they are held, in effect, to the order of the Iraqi authorities.

33. In these circumstances the United Kingdom was not before 31 December 2008 exercising any power or jurisdiction in relation to the appellants other than as agent for the Iraqi court. It was not exercising, or purporting to exercise, any autonomous power of its own as a sovereign State.

The Legal Position Relating to the Appellants’ Detention – After 31 December 2008

34. As I stated earlier, once the Mandate expired there remained under international law no trace or colour of any power or authority whatever for the MNF, or any part of it, to maintain any presence in Iraq save only and strictly at the will of the Iraqi authorities. [Counsel for the applicants] sought to submit that the British base at Basra would by force of customary international law remain inviolable after 31 December. But she was unable to identify any principle which might, on the facts, support that position; and it is to my mind wholly inescapable that after that date British forces remaining in Iraq have done so only by consent of the Iraqi authorities and on such terms as those authorities have agreed. And it must have been plain, as soon as it was known when the Mandate would come to an end, that this would be the true state of affairs.

35. And there is no sensible room for doubt but that the terms on which British forces would be permitted to remain in Iraq by the Iraqi authorities would not encompass any role or function which would permit, far less require, British (or any other) forces to continue to hold detainees. ...

36. After 31 December 2008 British forces enjoyed no legal power to detain any Iraqi. Had they done so, the Iraqi authorities would have been entitled to enter the premises occupied by the British and recover any such person so detained.

Conclusion on the Jurisdiction Question

37. It is not easy to identify precisely the scope of the Article 1 jurisdiction where it is said to be exercised outside the territory of the impugned State Party, because the learning makes it clear that its scope has no sharp edge; it has to be ascertained from a combination of key ideas which are strategic rather than lexical. Drawing on the Bankovic judgment and their Lordships’ opinions in Al-Skeini, I suggest that there are four core propositions, though each needs some explanation. (1) It is an exceptional jurisdiction. (2) It is to be ascertained in harmony with other applicable norms of international law. (3) It reflects the regional nature of the Convention rights. (4) It reflects the indivisible nature of the Convention rights. The first and second of these propositions imply (as perhaps does the term jurisdiction itself) an exercise of sovereign legal authority, not merely de facto power, by one State on the territory of another. That is of itself an exceptional state of affairs, though well recognized in some instances such as that of an embassy. The power must be given by law, since if it were given only by chance or strength its exercise would by no means be harmonious with material norms of international law, but offensive to them; and there would be no principled basis on which the power could be said to be limited, and thus exceptional. ... It is impossible to reconcile a test of mere factual control with the limiting effect of the first two propositions I have set out, and, indeed, that of the last two, as I shall explain.

38. These first two propositions, understood as I have suggested, condition the others. If a State Party is to exercise Article 1 jurisdiction outside its own territory, the regional and indivisible nature of the Convention rights requires the existence of a regime in which that State enjoys legal powers wide enough to allow its vindication, consistently with its obligations under international law, of the panoply of Convention rights – rights which may however, in the territory in question, represent an alien political philosophy.

39. The ECHR’s natural setting is the espace juridique of the States Parties; if, exceptionally, its writ is to run elsewhere, this espace juridique must in considerable measure be replicated. In short the State Party must have the legal power to fulfil substantial governmental functions as a sovereign State. It may do so within a narrow scope, as an embassy, consulate, military base or prison; it may, in order to do so, depend on the host State’s consent or the mandate of the United Nations; but however precisely exemplified, this is the kind of legal power the State must possess: it must enjoy the discretion to decide questions of a kind which ordinarily fall to the State’s executive government. If the Article 1 jurisdiction is held to run in other circumstances, the limiting conditions imposed by the four propositions I have set out will be undermined.”

“48. ... A State Party to the ECHR, exercising Article 1 jurisdiction in a foreign territory, may certainly owe duties arising under international law to the host State. Article 55 of the Vienna Convention [on Consular Relations, 1963], referred to in R(B) at paragraph 88, offers an obvious platform for such a potential duty. In this case the United Kingdom was plainly obliged under international law to transfer the applicants pursuant to the IHT’s request. In such instances, there may be a conflict between the State Party’s ECHR obligations and its international obligations.

49. One solution might have been to hold that the existence of such an international obligation is incompatible with the exercise of Article 1 jurisdiction, because it would show that the State Party’s legal power in the relevant foreign territory lacked the amplitude required to guarantee the Convention rights. In that case there would be no conflict. Such a comfort would of course be no comfort to the appellants – the duty to transfer them would without more negative the ECHR jurisdiction, so that they would enjoy no Convention rights. However, such an outcome would, I think, have been consistent with Bankovic; but this is not the direction our courts have taken. Both Al-Jedda and R(B) recognize that a State Party may be fixed with potentially inconsistent obligations arising under the ECHR and international law respectively.

50. With great respect I see no reason to doubt this position. While I have certainly asserted that the scope of the article 1 jurisdiction has to accommodate the pressure on States Parties of international obligations apart from the ECHR, it by no means follows that the ECHR duty must always yield to the other obligation, so that no conflict can arise. No doubt it will be a matter for assessment in any case (where the issue sensibly arises) whether the international law obligations are so pressing, or operate on so wide a front, as in effect to deprive the relevant State Party of the espace juridique which the article 1 jurisdiction demands. They may not do so; and where they do not, this court’s decision in R(B) shows the correct juridical approach.”

3. The House of Lords

H. The Rule 39 interim measures and the applicants’ transfer

“...the Government took the view that, exceptionally, it could not comply with the measure indicated by the Court; and further that this action should not be regarded as a breach of Article 34 in this case. The Government regard the circumstances of this case as wholly exceptional. It remains the Government policy to comply with Rule 39 measures indicated by the Court as a matter of course where it is able to do so.”

I. The applicants’ current position

II. RELEVANT NATIONAL AND INTERNATIONAL LEGAL MATERIALS

A. Cases concerning jurisdiction over extra-territorial prisons

“287. In the circumstances the burden lies on the British military prison authorities to explain how he came to lose his life while in British custody. It seems to us that it is not at all straining the examples of extra-territorial jurisdiction discussed in the jurisprudence considered above to hold that a British military prison, operating in Iraq with the consent of the Iraqi sovereign authorities, and containing arrested suspects, falls within even a narrowly limited exception exemplified by embassies, consulates, vessels and aircraft, and in the case of Hess v. United Kingdom, a prison. It seems to us that our interpretation of Drozd also lends support to our conclusion, as do the two cases discussed (at paras 220/221 above) from Canada and the United States, viz Cook v. The Queen and Rasul v. Bush. We can see no reason in international law considerations, nor in principle, why in such circumstances the United Kingdom should not be answerable to a complaint, otherwise admissible, brought under articles 2 and/or 3 of the Convention”.

When the case was considered by the Court of Appeal ([2005] EWCA Civ 1609, the Government conceded that the United Kingdom was exercising extra-territorial jurisdiction under Article 1 of the Convention in respect of Baha Mousa. The Court of Appeal upheld the Divisional Court’s finding (§ 108), but on the basis that “Mr Mousa came within the control and authority of the UK from the time he was arrested at the hotel and thereby lost his freedom at the hands of British troops”.

Before the House of Lords ([2007] UKHL 26) it was again conceded by the Government that the United Kingdom’s jurisdiction under Article 1 of the Convention extended to a military prison in Iraq occupied and controlled by agents of the United Kingdom. The Government did not, however, accept the basis of jurisdiction regarding Mr Mousa as set out by the Court of Appeal. Lord Brown of Eaton-under-Heywood, with whom the majority of the House of Lords appeared to agree on this point, commented (§ 132):

“I for my part would recognise the UK’s jurisdiction over Mr Mousa only on the narrow basis found established by the Divisional Court, essentially by analogy with the extra-territorial exception made for embassies (an analogy recognised too in Hess v United Kingdom (1975) 2 DR 72, a Commission decision in the context of a foreign prison which had itself referred to the embassy case of X v Federal Republic of Germany).”

B. Explanatory report to Protocol No. 13 to the Convention

“1. The right to life, ‘an inalienable attribute of human beings’ and ‘supreme value in the international hierarchy of human rights’ is unanimously guaranteed in legally binding standards at universal and regional levels.

2. When these international standards guaranteeing the right to life were drawn up, exceptions were made for the execution of the death penalty when imposed by a court of law following a conviction of a crime for which this penalty was provided for by law (cf., for example, Article 2, paragraph 1, of the ... Convention ...).

3. However, as illustrated below, there has since been an evolution in domestic and international law towards abolition of the death penalty, both in general and, more specifically, for acts committed in time of war.

4. At the European level, a landmark stage in this general process was the adoption of Protocol No. 6 to the Convention in 1982. This Protocol, which to date has been ratified by almost all States Parties to the Convention, was the first legally binding instrument in Europe - and in the world - which provided for the abolition of the death penalty in time of peace, neither derogations in emergency situations nor reservations being permitted. Nonetheless, under Article 2 of the said Protocol, ‘A State may make provision in its law for the death penalty in respect of acts committed in time of war or of imminent threat of war’. However, according to the same Article, this possibility was restricted to the application of the death penalty in instances laid down in the law and in accordance with its provisions.

5. Subsequently, the Parliamentary Assembly established a practice whereby it required from states wishing to become a member of the Council of Europe that they committed themselves to apply an immediate moratorium on executions, to delete the death penalty from their national legislation, and to sign and ratify Protocol No. 6. The Parliamentary Assembly also put pressure on countries which failed or risked failing to meet the commitments they had undertaken upon accession to the Council of Europe. More generally, the Assembly took the step in 1994 of inviting all member states who had not yet done so, to sign and ratify Protocol No. 6 without delay (Resolution 1044 (1994) on the abolition of capital punishment).

6. This fundamental objective to abolish the death penalty was also affirmed by the Second Summit of Heads of State and Government of member states of the Council of Europe (Strasbourg, October 1997). In the Summit’s Final Declaration, the Heads of State and Government called for the ‘universal abolition of the death penalty and [insisted] on the maintenance, in the meantime, of existing moratoria on executions in Europe’. For its part, the Committee of Ministers of the Council of Europe has indicated that it ‘shares the Parliamentary Assembly’s strong convictions against recourse to the death penalty and its determination to do all in its power to ensure that capital executions cease to take place’. The Committee of Ministers subsequently adopted a Declaration ‘For a European Death Penalty-Free Area’.

7. In the meantime, significant related developments in other fora had taken place. In June 1998, the European Union adopted ‘Guidelines to EU Policy Toward Third Countries on the Death Penalty’ which, inter alia, state its opposition to this penalty in all cases. Within the framework of the United Nations, a Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, was adopted in 1989. For a few years, the UN Commission on Human Rights has regularly adopted Resolutions which call for the establishment of moratoria on executions, with a view to completely abolishing the death penalty. It should also be noted that capital punishment has been excluded from the penalties that the International Criminal Court and the International Criminal Tribunals for the Former Yugoslavia and Rwanda are authorised to impose.

8. The specific issue of the abolition of the death penalty also in respect of acts committed in time of war or of imminent threat of war should be seen against the wider background of the above-mentioned developments concerning the abolition of the death penalty in general. It was raised for the first time by the Parliamentary Assembly in Recommendation 1246 (1994), in which it recommended that the Committee of Ministers draw up an additional protocol to the Convention, abolishing the death penalty both in peace- and in wartime.

9. While the Steering Committee for Human Rights (CDDH), by a large majority, was in favour of drawing up such an additional protocol, the Committee of Ministers at the time considered that the political priority was to obtain and maintain moratoria on executions, to be consolidated by complete abolition of the death penalty.

10. A significant further step was made at the European Ministerial Conference on Human Rights, held in Rome on 3-4 November 2000 on the occasion of the 50th anniversary of the Convention, which pronounced itself clearly in favour of the abolition of the death penalty in time of war. In Resolution II adopted by the Conference, the few member states that had not yet abolished the death penalty nor ratified Protocol No. 6 were urgently requested to ratify this Protocol as soon as possible and, in the meantime, respect strictly the moratoria on executions. In the same Resolution, the Conference invited the Committee of Ministers ‘to consider the feasibility of a new additional protocol to the Convention which would exclude the possibility of maintaining the death penalty in respect of acts committed in time of war or of imminent threat of war’ (Paragraph 14 of Resolution II). The Conference also invited member states which still had the death penalty for such acts to consider its abolition (ibidem).

11. In the light of texts recently adopted and in the context of the Committee of Ministers’ consideration of the follow-up to be given to the Rome Conference, the Government of Sweden presented a proposal for an additional protocol to the Convention at the 733rd meeting of the Ministers’ Deputies (7 December 2000). The proposed protocol concerned the abolition of the death penalty in time of war as in time of peace.

12. At their 736th meeting (10-11 January 2001), the Ministers’ Deputies instructed the CDDH ‘to study the Swedish proposal for a new protocol to the Convention ... and submit its views on the feasibility of a new protocol on this matter’.

13. The CDDH and its Committee of Experts for the Development of Human Rights (DH-DEV) elaborated the draft protocol and the explanatory report thereto in the course of 2001. The CDDH transmitted the draft protocol and explanatory report to the Committee of Ministers on 8 November 2001. The latter adopted the text of the Protocol on 21 February 2002 at the 784th meeting of the Ministers’ Deputies and opened it for signature by member states of the Council of Europe on 3 May 2002.”

C. “Diplomatic asylum”

“1. Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of that State.

2. All official business with the receiving State entrusted to the mission by the sending State shall be conducted with or through the Ministry for Foreign Affairs of the receiving State or such other ministry as may be agreed.

3. The premises of the mission must not be used in any manner incompatible with the functions of the mission as laid down in the present Convention or by other rules of general international law or by any special agreements in force between the sending and the receiving State.”

“In a case such as Soering the Contracting State commits no breach of international law by permitting an individual to remain within its territorial jurisdiction rather than removing him to another State. The same is not necessarily true where a State permits an individual to remain within the shelter of consular premises rather than requiring him to leave. It does not seem to us that the Convention can require States to give refuge to fugitives within consular premises if to do so would violate international law. So to hold would be in fundamental conflict with the importance that the Grand Chamber attached in Bankovic to principles of international law. Furthermore, there must be an implication that obligations under a Convention are to be interpreted, insofar as possible, in a manner that accords with international law. What has public international law to say about the right to afford ‘diplomatic asylum’?

Oppenheim [Oppenheim’s International Law edited by the late Sir Robert Jennings QC and Sir Arthur Watts QC 9th Edition Vol 1] deals with this topic at paragraph 495, from which we propose to quote at a little length:

Ԥ 495: So-called diplomatic asylum

The practice of granting diplomatic asylum in exceptional circumstances is of long-standing, but it is a matter of dispute to what extent it forms part of general international law.

There would seem to be no general obligation on the part of the receiving state to grant an ambassador the right of affording asylum to a refugee, whether criminal or other, not belonging to this mission. Of course, an ambassador need not deny entrance to refugees seeking safety in the embassy. But as the International Court of Justice noted in the Asylum case ... in the absence of an established legal basis, such as is afforded by treaty or established custom, a refugee must be surrendered to the territorial authorities at their request and if surrender is refused, coercive measures may be taken to induce it. Bearing in mind the inviolability of embassy premises, the permissible limits of such measures are not clear. The embassy may be surrounded by soldiers, and ingress and egress prevented; but the legitimacy of forcing an entry in order forcibly to remove the refugee is doubtful, and measures involving an attack on the envoy’s person would clearly be unlawful. Coercive measures are in any case justifiable only in an urgent case, and after the envoy has in vain been requested to surrender the refugee.

It is sometimes suggested that there is, exceptionally, a right to grant asylum on grounds of urgent and compelling reasons of humanity, usually involving the refugee’s life being in imminent jeopardy from arbitrary action. The practice of states has afforded instances of the grant of asylum in such circumstances. The grant of asylum ‘against the violent and disorderly action of irresponsible sections of the population’ is a legal right which, on grounds of humanity, may be exercised irrespective of treaty; the territorial authorities are bound to grant full protection to a diplomatic mission providing shelter for refugees in such circumstances. There is some uncertainty how far compelling reasons of humanity may justify the grant of asylum in other cases. The International Court’s judgment in the Asylum case suggests that the grant of asylum may be justified where ‘in the guise of justice, arbitrary action is substituted for the rule of law. Such would be the case if the administration of justice were corrupted by measures clearly prompted by political aims’. However, the Court went on to emphasise that ‘the safety which arises out of asylum cannot be construed as a protection against the regular application of the laws and against the jurisdiction of legally constituted tribunals’. Thus it would seem not to be enough to show that a refugee is to be tried for a ‘political’ offence: it must be shown that justice would be subordinated to political dictation and the usual judicial guarantees disregarded. Even where permissible, asylum is only a temporary expedient and may only be afforded so long as the reasons justifying it continue to subsist.’

The propositions in Oppenheim are based, to a large extent, on what seem to be the only juridical pronouncements on the topic to carry authority. On 20 November 1990 the International Court of Justice gave judgment in a dispute between Colombia and Peru that the two States had referred to the Court - Asylum Case (Columbia v Peru) (1950) ICJ Rep. 206. Colombia had given refuge in its embassy in Peru to the leader of a military rebellion, which had been almost instantaneously suppressed. At issue was the effect of two Conventions to which both Colombia and Peru were party which made provision in relation to the grant of asylum to political refugees but not to criminals. Colombia’s arguments included the contention that by customary international law it was open to Columbia unilaterally to determine that the fugitive fell to be classified as a political refugee. Much of the judgment related to the effects of the two Conventions, but the Court made some general comments in relation to ‘diplomatic asylum’:

‘The arguments submitted in this respect reveal a confusion between territorial asylum (extradition), on the one hand, and diplomatic asylum, on the other.

In the case of extradition, the refugee is within the territory of the State of refuge. A decision with regard to extradition implies only the normal exercise of the territorial sovereignty. The refugee is outside the territory of the State where the offence was committed, and a decision to grant him asylum in no way derogates from the sovereignty of that State.

In the case of diplomatic asylum, the refugee is within the territory of the State where the offence was committed. A decision to grant diplomatic asylum involves a derogation from the sovereignty of that State. It withdraws the offender from the jurisdiction of the territorial State and constitutes an intervention in matters which are exclusively within the competence of the State. Such a derogation from territorial sovereignty cannot be recognized unless its legal basis is established in each particular case.’

In 1984 six fugitives who were subject to detention orders issued by the South African government sought refuge in the British Consulate in Durban. They became known as the Durban six. The British government decided that it would not compel them to leave but that it would not intervene on their behalf with the South African authorities. They were told that they could not stay indefinitely and, eventually they left. Five of them were immediately arrested and charged with high treason, which carried the death penalty. We were referred to an article in Human Rights Quarterly 11 (1989) by Susanne Riveles, which included the following propositions:

‘There exists no universally accepted international agreement to assure a uniform response by states to grant refuge in a mission in an emergency. Most countries, with the exception of those in Latin America, deny outright the claim to diplomatic asylum because it encroaches upon the state’s sovereignty.

Some countries give limited recognition to the practice, allowing ‘temporary safe stay’ on a case-by-case basis to persons under threat of life and limb. It should be recognised that a state has the permissible response of granting temporary sanctuary to individuals or groups in utter desperation who face repressive measures in their home countries. Moreover, this should be considered a basic human right, to be invoked by those fleeing from the persecution for reasons of race, religion, or nationality, or for holding a political opinion in an emergency situation involving the threat of violence.’

Discussion

We have concluded that, if the Soering approach is to be applied to diplomatic asylum, the duty to provide refuge can only arise under the Convention where this is compatible with public international law. Where a fugitive is facing the risk of death or injury as the result of lawless disorder, no breach of international law will be occasioned by affording him refuge. Where, however, the receiving State requests that the fugitive be handed over the situation is very different. The basic principle is that the authorities of the receiving State can require surrender of a fugitive in respect of whom they wish to exercise the authority that arises from their territorial jurisdiction; see Article 55 of the 1963 Vienna Convention. Where such a request is made the Convention cannot normally require the diplomatic authorities of the sending State to permit the fugitive to remain within the diplomatic premises in defiance of the receiving State. Should it be clear, however, that the receiving State intends to subject the fugitive to treatment so harsh as to constitute a crime against humanity, international law must surely permit the officials of the sending state to do all that is reasonably possible, including allowing the fugitive to take refuge in the diplomatic premises, in order to protect him against such treatment. In such circumstances the Convention may well impose a duty on a Contracting State to afford diplomatic asylum.

It may be that there is a lesser level of threatened harm that will justify the assertion of an entitlement under international law to grant diplomatic asylum. This is an area where the law is ill-defined. So far as Australian law was concerned, the applicants had escaped from lawful detention under the provisions of the Migration Act 1958. On the face of it international law entitled the Australian authorities to demand their return. We do not consider that the United Kingdom officials could be required by the Convention and the Human Rights Act to decline to hand over the applicants unless this was clearly necessary in order to protect them from the immediate likelihood of experiencing serious injury.”

D. Cases concerning the obligation on a sending State to make representations against the use of the death penalty by the receiving State after the transfer of an individual from its jurisdiction

“18. ... request[ed] the State party to make such representations as might still be possible to avoid the imposition of the death penalty and appeals to the State party to ensure that a similar situation does not arise in the future.”

“12. Pursuant to article 2, paragraph 3 (a) of the Covenant, the Committee concludes that the author is entitled to an appropriate remedy which would include making such representations as are possible to the receiving state to prevent the carrying out of the death penalty on the author.”

(a)  “to use diplomatic channels in order to protect the basic rights of the applicants” and, in particular, “to take all possible steps to establish contacts with the applicants and to provide them with consular support”;

(b) “to take all possible steps to prevent the death penalty from being pronounced against and executed on the applicants, including attempts to seek assurances from the US via diplomatic contacts that the applicants [would] not be subjected to the death penalty”; and

(c)  “to retain lawyers authorised and admitted to practice in the relevant jurisdictions and before the relevant courts, tribunals or other authoritative bodies in order to take all necessary action to protect the applicants’ rights while in US custody and in case of possible military, criminal or other proceedings involving the applicants”.

COMPLAINTS

THE LAW

I.  JURISDICTION

“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.”

The Government denied that the applicants fell within the United Kingdom’s jurisdiction at the relevant time.

1. The parties’ submissions

a. The applicants

b. The Government

c. The third parties

2. The Court’s assessment

It recalls that Article 1 sets a limit, notably territorial, on the reach of the Convention. In particular, the engagement undertaken by a Contracting State is confined to “securing” the listed rights and freedoms to persons within its own “jurisdiction”. Further, the Convention 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 (see Banković, cited above, § 66).

II. ALLEGED VIOLATIONS OF ARTICLES 2 AND 3 OF THE CONVENTION CONCERNING CONDITIONS OF DETENTION AND THE RISK OF ILL-TREATMENT IN RUSAFA PRISON

“Article 2 § 1

 Everyone’s right to life shall be protected by law. ...”

“Article 3

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

III. ALLEGED VIOLATIONS OF ARTICLES 2, 3 AND 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 13, CONCERNING THE ALLEGED RISKS ATTENDANT ON TRIAL, CONVICTION AND SENTENCING BY THE IHT

Article 6 provides, as relevant:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ...”

Article 1 of Protocol No. 13 provides:

“The death penalty shall be abolished. No one shall be condemned to such penalty or executed.”

The Government denied that there was any risk of a breach of the above provisions.

A. The parties’ submissions

1. The applicants

2. The Government

3. The third parties

B. The Court’s assessment

IV. ALLEGED VIOLATIONS OF ARTICLES 13 AND 34 OF THE CONVENTION

“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”

Furthermore, since at the time the House of Lords had not yet had the opportunity to determine their appeal, the transfer also violated their right to an effective domestic remedy, in breach of Article 13 of the Convention, which states:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Government rejected these contentions.

A. The parties’ submissions

1. The applicants

2. The Government

3. The third parties

B. The Court’s assessment

For these reasons, the Court unanimously:

Disapplies the application of Article 29 § 3 of the Convention;

Declares the complaints concerning conditions of detention and the risk of ill-treatment and extrajudicial killing in Iraqi custody inadmissible;

Joins the question of the admissibility of Article 13 of the Convention and the issues arising under Article 34 to the merits;

Declares the remainder of the application admissible.

Lawrence Early Lech Garlicki
Registrar President