Al-Saadoon and Mufdhi v the UK, Application No. 61498/08 ECtHR

2nd March 2010

• European Court of Human Rights
• Finalised
• Article 2
• Intervenor

The facts of the case

This case involved a determination of whetherthe UK government had acted in breach ofArticles 2 and 3 ofthe 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 Baath 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 IraqWar).The newly established Iraqi HighTribunalthe 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 proposedtransfer,buttheywere unsuccessful in the Divisional Court and the Court of Appeal. The Court of Appeal held that, althoughthere was a real risk that the Applicants would face execution if transferred to the IHT, the applicants did not fall within the UKs 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 Courtof Human Rights the Court)on the basis that theirtransfer to Iraqi custody exposed them to a real risk of the death penalty, contrary to Articles 2 and 3 of the Convention.

RSIs intervention in the case

RSI (then British Irish Rights Watch) intervened based on a concern that the British governments transfer to the IHT breaches the UKs obligations under the Convention in relation to the right to life, right to a fair trial, and rightnot 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 u2018at all times within UK jurisdiction for the purposes of Article 2 of the European Conventiongiven the total and exclusivede facto, and subsequentde jure,control exercised by the UKover the premises in which the Applicants had been detained under December 2008.

The Court agreed with the domestic courts assessment that the transfer of the Applicants exposed them to a real risk that they would be tortured or executed.The Courtanalogisedto the position relating to deportation, whereby Article2 and3 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 UKGovernments 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 RSIs work?

This case continues RSIs 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 individualsinto circumstances where they are atseriousrisk of suffering breaches of their fundamental rights.This caseheld that Convention Articles 2 and 3 generate a non-refoulement principle with respect to the death penalty, and that thisresponsibility cannot be undermined through bilateral state action.