March 02, 2010European Court of Human Rights Finalised Article 2 Intervenor
The facts of the case
This case involved a determination of whether the UK government had acted in breach of Articles 2 and 3 of the European Convention on Human Rights (“the Convention”) in transferring two Iraqis to Iraqi custody where they faced a serious threat of execution. The Applicants were arrested on the basis of being senior Ba’ath party members and orchestrating violence by the former Iraqi regime against the Multi-National Force (coalition forces, including the UK, responsible for conducting military operations during the invasion of Iraq and the Iraq War). The newly established Iraqi High Tribunal (“the IHT”) requested the transfer of the applicants to its custody from 2007 onwards.
In 2008, the Applicants issued judicial review proceedings in England challenging the legality of their proposed transfer, but they were unsuccessful in the Divisional Court and the Court of Appeal. The Court of Appeal held that, although there was a real risk that the Applicants would face execution if transferred to the IHT, the applicants did not fall within the UK’s jurisdiction for the purposes of the Convention. The Applicants were then transferred to the IHT. Having been refused leave to appeal to the House of Lords, the Applicants applied to the European Court of Human Rights (“the Court”) on the basis that their transfer to Iraqi custody exposed them to a real risk of the death penalty, contrary to Articles 2 and 3 of the Convention.
RSI’s intervention in the case
RSI (then British Irish Rights Watch) intervened based on a concern that the British government’s transfer to the IHT breaches the UK’s obligations under the Convention in relation to the right to life, right to a fair trial, and right not to be subjected to inhuman or degrading treatment or torture. RSI intervened with the Bar Human Rights Committee of England and Wales, 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 judgment in the case
In its admissibility ruling, the Court held that the Applicants were ‘at all times within UK jurisdiction for the purposes of Article 2 of the European Convention’ given the total and exclusive de facto, and subsequent de jure, control exercised by the UK over the premises in which the Applicants had been detained under December 2008.
The Court agreed with the domestic court’s assessment that the transfer of the Applicants exposed them to a real risk that they would be tortured or executed. The Court analogised to the position relating to deportation, whereby Article 2 and 3 may be engaged where a state attempts to deport an individual to a country where they face a real risk of torture or death. These obligations were held to override bilateral treaty obligations (for example, extradition treaties between two nations that would ordinarily require the extradition of an individual upon request by one party). As a result, it is not open to a contracting state to the Convention to enter into an agreement with another state that conflicts with its obligations under the Convention. This meant that there was no legal force to the UK Government’s argument that under well-established principles of international law it had no option but to respect Iraqi sovereignty and to transfer the Applicants when it was requested to do so.
Accordingly, the Court held that there had been a breach of Article 3 of the Convention, and that it was not necessary to decide whether there had been a breach of Article 2 of the Convention.
What does this mean for RSI’s work?
This case continues RSI’s work on jurisdiction, as well as its commitment to strengthening rule of law principles in the context of national security. Existing principles of international law, namely non-refoulement, preclude the transfer of individuals into circumstances where they are at serious risk of suffering breaches of their fundamental rights. This case held that Convention Articles 2 and 3 generate a non-refoulement principle with respect to the death penalty, and that this responsibility cannot be undermined through bilateral state action.
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