by AL-SAADOON and MUFDHI
against the United Kingdom
lodged on 22 December 2008
STATEMENT OF FACTS
The applicants, Mr Faisal Attiyah Nassar Al-Saadoon and Mr Khalaf Hussain Mufdhi, are Iraqi nationals, currently detained near Baghdad. They are represented before the Court by Public Interest Lawyers, a firm of solicitors practising in Birmingham.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. The conflict and the ongoing United Kingdom presence in Iraq
The invasion of Iraq by coalition forces began on 20 March 2003. Major combat operations ceased at the beginning of May 2003, and the United States of America (“USA”) and the United Kingdom (“UK”) thereafter became occupying powers. The British forces deployed in Iraq formed part of the Multi-National Force there (“the MNF”). The Coalition Provisional Authority (“the CPA”) was established to exercise most of the powers of government during the occupation.
On 22 May 2003 the UN Security Council adopted Resolution 1483 (“UNSCR 1483”), which inter alia affirmed the sovereignty and territorial integrity of Iraq, called upon the CPA to promote the welfare of the Iraqi people through the effective administration of the territory, and supported the formation of an Iraqi interim administration. The resolution, in common with the later resolutions referred to below, was adopted by the Security Council acting under Chapter VII of the Charter of the United Nations and was based on a decision that the security situation in Iraq constituted a threat to international peace and security.
In July 2003 the Governing Council of Iraq (“the IGC”) was established. UNSCR 1511, adopted on 16 October 2003, underscored the temporary nature of the CPA’s role; determined that the IGC and its ministers were the principal bodies of the Iraqi interim administration which embodied the sovereignty of the State of Iraq during the transitional period until an internationally recognised, representative government was established and assumed the responsibilities of the CPA; called upon the CPA to return governing responsibilities and authorities to the people of Iraq as soon as practicable; and invited the IGC to produce a timetable and programme for the drafting of a new constitution for Iraq and for the holding of democratic elections under that constitution. It authorised the MNF to take all necessary measures to contribute to the maintenance of security and stability in Iraq, and provided that the requirements and mission of the MNF would be reviewed within one year of the date of the resolution and that in any case the mandate of the MNF was to expire upon the completion of the political process to which the resolution had previously referred.
On 8 March 2004 the IGC promulgated the Law of Administration for the State of Iraq for the Transitional Period (known as the Transitional Administrative Law or “the TAL”). This provided a temporary legal framework for the administration of Iraq for the transitional period which was due to commence by 30 June 2004 with the establishment of an interim Iraqi government (“the Interim Government”) and the dissolution of the CPA. Article 26 of the TAL made provision for the laws in force in Iraq at the time of that change to continue in effect unless rescinded or amended by the Interim Government, and specifically for the laws, regulations, orders and directives issued by the CPA to remain in force until rescinded or amended by legislation duly enacted and having the force of law.
Further provision for the new regime was made in UNSCR 1546, adopted on 8 June 2004. The resolution endorsed “the formation of a sovereign Interim Government of Iraq ... which will assume full responsibility and authority by 30 June 2004 for governing Iraq” (article 1) and welcomed “that, also by 30 June 2004, the occupation will end and [the CPA] will cease to exist, and that Iraq will reassert its full sovereignty” (article 2). It noted that the presence of the MNF was at the request of the incoming Interim Government (as set out in correspondence between the Iraqi Prime Minister and the US Secretary of State annexed to the resolution) and reaffirmed the authorisation for the MNF, with authority to take all necessary measures to contribute to the maintenance of security and stability in Iraq. Provision was again made for the mandate for the MNF to be reviewed within 12 months and to expire upon completion of the political process previously referred to.
The transfer of full authority from the CPA to the Interim Government, and the dissolution of the CPA, in fact took place on 28 June 2004. This marked the end of the period of occupation. Since that date the MNF, and therefore the British forces forming part of the MNF, have remained in Iraq pursuant to requests by the Iraqi Government and continued authorisations from the UN Security Council as set out in a series of further resolutions: see UNSCR 1637 of 8 November 2005, UNSCR 1723 of 28 November 2006, UNSCR 1790 of 18 December 2007.
In April 2005 the Interim Government was replaced by the Iraqi Transitional Government, which was established following elections that took place in January 2005.
On 20 May 2006 the Transitional Government was replaced by a Government of National Unity, which is still in place. On the same date the Iraqi Constitution came into force, superseding the TAL.
On 31 December 2008 the UN mandate for MNF presence in Iraq expired. UK forces remained in Iraq beyond 31 December 2008 and concluded an agreement with the Iraqi authorities.
2. Relevant CPA instruments and the UK-Iraq Memorandum of Understanding
During the period of occupation, provision was made by CPA Regulation No.1 for the CPA to issue binding regulations and orders, and also to issue memoranda in relation to the interpretation and application of any regulation and order. CPA Order No.7 related to the Penal Code. CPA Memorandum No.3 of 18 June 2003 purported to implement CPA Order No.7. Section 1 of CPA Memorandum No.3 recognised the critical support that the MNF was giving to some aspects of the administration of justice, and noted in particular the application of the Fourth Geneva Convention to all persons detained as “security internees”. Section 5 provided for the arrest and detention by the MNF of persons suspected of having committed criminal acts (“criminal detainees”). Section 6 set out the process to be applied to persons detained for imperative reasons of security, pursuant to UNSCR 1546.
A revised version of CPA Memorandum No.3 was issued on 27 June 2004 (“CPA Memorandum No.3 (Revised)”) which made provision in sections 5 and 6 for criminal detainees and security detainees, in the following terms:
“Section 5: Criminal Detentions
(1) A national continent 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 ....
(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.
(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 ...”
CPA Memorandum No 17 (Revised), dated 27 June 2004, dealt with the status of the MNF in Iraq. In particular, it provided that the MNF and their personnel “shall be immune from Iraqi legal process” (noting in its Preamble that “there are fundamental arrangements that have customarily been adopted to govern the deployment of Multinational Forces in host nations” and that there was a “need to clarify” the status of the Multinational Forces and their personnel).
On 8 November 2004 a Memorandum of Understanding regarding criminal suspects (“the MoU”) was entered into between the UK contingent of the MNF and the Ministries of Justice and Interior of Iraq (collectively referred to as “the Participants”). The preamble to the MoU recited the authority of the UK national contingent of the MNF, in accordance with the mandate conferred by UNSCR 1546, to intern persons for imperative reasons of security, and the power of national contingents of the MNF, in accordance with CPA Memorandum No.3 (Revised), to apprehend persons who were suspected of committing criminal acts. It also stated that “[w]hereas Iraq is developing its own custodial capacity with the aim of being able to confine all criminal suspects in its own facilities, it may, in the meantime, request the MNF-I to confine persons who are suspected of having committed criminal acts in safe and secure detention facilities, subject to security and capacity considerations”. The substantive provisions of the MoU included the following:
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 UK MNF-I in accordance with the terms of this Memorandum of Understanding (MOU).
2. The UK MNF-I 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 UK MNF-I, the MOJ will:
(a) provide UK MNF-I 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. ...
4. In relation to any criminal suspect transferred to the MOI or the MOJ by UK MNF-I from its detention facilities, the MOJ and the MOI, as the case may be, will:
(a) inform UK MNF-I before releasing any individual and will comply with any request by UK MNF-I that UK MNF-I 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 UK MNF-I 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 UK MNF-I’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 UK MNF-I decides that it is no longer prepared to provide custody facilities for a particular suspect, it shall give notice of this decision to the MOJ as soon as possible to enable the MOJ to make other arrangements for the custody of that suspect if it so wishes. The MOJ will then notify the UK MNF-I of the arrangements it has made or alternatively will indicate that the suspect should be released. UK MNF-I will then use its best endeavours to enable any such alternative arrangements to be put in place."
3. The arrest and detention of the applicants by UK Forces
The applicants are Sunni Muslims. The first applicant joined the Ba’ath Party in 1969, aged 17. In 1996 he became the Branch Member of the Al-Zubair branch of the Ba’ath Party (reporting to the second applicant, the General Secretary of the Al-Zubair branch). This was a full-time post.
The second applicant joined the Ba’ath Party in 1968, aged 18. In February 2001 he became the General Secretary of the Al-Zubair branch. This was the highest rank in the province of Al-Zubair and a full-time post.
The first and second applicants were arrested on 30 April 2003 and 21 November 2003, respectively, by UK Forces in Basra. They were detained by UK Forces from that time, until their transfer to the Iraqi authorities on 31 December 2008.
From 20 April 2007 until their transfer they were held at the UK’s Divisional Internment Facility (“DIF”) which is located in the Contingency Operating Base (“COB”) at Basra Airfield. The UK DIF is a permanent detention facility staffed solely by UK personnel. The COB within which the UK DIF is located is a UK run military base, secured by the UK Royal Air Force, which houses all the remaining UK forces in Basra and the vast majority of UK Forces personnel in Iraq. The applicants were the last two Iraqi detainees held by UK Forces in Iraq.
The first applicant was originally arrested for reasons unconnected to the criminal allegations he now faces and incorrectly classified as an enemy prisoner of war. In November 2003, his status was changed to that of a security internee under CPA Memorandum No.3 (and, after 27 June 2004, under CPA Memorandum No.3 (Revised)).
The second applicant was arrested because of intelligence linking him to the deaths of the two UK Forces personnel in relation to which he now faces criminal allegations. In addition, he was considered to pose a real and significant threat to Coalition Forces. He was classified as a security internee.
According to the evidence before the domestic courts, the Government “anticipated from an early stage that it would be possible for [the applicants] to be released to the Iraqi justice system for criminal prosecution in respect of” the deaths of two UK Forces personnel, killed in combat on 23 March 2003. The investigation into the deaths was carried out by the Special Investigations Branch of the UK Royal Military Police (“SIB”). The initial investigation was completed in late 2003 and consideration was thereafter given to referring the case to the Iraqi criminal justice system. The records held by the UK Ministry of Defence confirm that the possibility of the applicants being tried by the Iraqi courts was discussed by those responsible for their detention in 2004, and in July 2004 the UK Government confirmed to the UK Parliament that the case would be referred to the Iraqi criminal justice system.
In September 2004, the allegations against the applicants were referred to the Central Criminal Court of Iraq (“CCCI”) by the Government and a case conference was held with an Iraqi judge. The SIB continued to carry out investigations, which included interrogating the applicants on 24 October 2004. Notwithstanding the fact that they had been detained since 2003 and the case against them had already been referred to the CCCI, the interrogation on 24 October 2004 was the first occasion on which both applicants were made aware that they were suspected of involvement in the deaths of the two UK Forces personnel.
On 16 December 2005, the case involving the death of the two soldiers was formally referred to the Chief Investigative Judge of the CCCI by the UK Forces. On 29 January 2006 the Chief Investigative Judge of the CCCI wrote to the UK Embassy in Baghdad explaining that the case was within the jurisdiction of the Basra Criminal Court and that the file should be submitted to that Court. The case was subsequently referred to the Basra Criminal Court by the UK Forces, and on 12 April 2006 a Lieutenant Colonel Clapham from the UK Forces attended that court to make a statement of complaint in respect of the killing of the two soldiers. On 18 May 2006, pursuant to a request from the Iraqi Investigative Judges the Applicants appeared before the Special Investigative Panel of the Basra Criminal Court to give evidence in response to the UK Forces complaint. As Lieutenant Colonel Clapham’s file note records:
“neither defendant had retained the services of a lawyer and requested that the court appoint one for them. There was a short delay in arranging this as many of the public defence lawyers were ‘too frightened’ to take the matter on. It was not clear whether their fears arose from the connection with MNF or the fact that the accused were once senior Ba’ath party figures.”
Lieutenant Colonel Clapham’s File Note also recorded that “the evidence suggesting [the Applicants] involvement in the killings is not strong”. Nonetheless, the Basra Criminal Court issued an arrest warrant under the Iraqi Penal Code and made an order authorising the applicants’ continued detention. On 21 May 2006 the UK Forces personnel responsible for the detention of the applicants met to consider whether or not to alter the basis on which they were detained, as a result of which both applicants were re-classified as criminal detainees and remained so classified until their transfer to the Iraqi authorities on 31 December 2008.
The applicants’ cases were referred by the Basra Criminal court to the Iraqi Higher Tribunal (IHT). The IHT concluded that the charges brought against the Applicants fell within its jurisdiction because, if proven, the allegations against the Applicants would constitute “war crimes”. The applicants twice appealed the decision to transfer their cases to the IHT but the Basra Criminal Court in its appellate capacity dismissed the first appeal on 27 November 2006 and the Federal Appeal Court in Basra dismissed the second appeal on 16 May 2007.
The IHT first requested that the applicants be transferred into its custody on 27 December 2007, and repeated that request on several occasions until May 2008. When asked by the Court of Appeal to clarify why the applicants were not transferred by the UK to the IHT between December 2007 and May 2008, the following answer was given by counsel for the Government:
“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].”
On 31 December 2008 the applicants were transferred to the IHT.
4. The domestic proceedings
On 12 June 2008 the applicants issued judicial review proceedings in the Administrative Court challenging the legality of their proposed transfer. Shortly after proceedings were issued, the Government (through the Ministry of Defence, the defendant in the domestic proceedings) provided an undertaking that it would not transfer the applicants, pending the determination of their claim by the Administrative Court.
The applicants’ case was heard by a Divisional Court on 18-20 November 2008. On 19 December 2008 the Divisional Court handed down its decision. It found that the applicants were within the Article 1 jurisdiction of the UK, that their transfer would be an act properly attributable to the UK, and that the Soering principle of non-refoulement applied to their circumstances. The applicants were found to be at real risk of the death penalty if transferred, in breach of Article 1 of Protocol No. 13, and accordingly their transfer would normally be prohibited. However, the Soering principle was qualified by the UK’s international law obligations to comply with the requests of the IHT, on the basis of the decision of the English Court of Appeal in R (B) v Secretary of State for Foreign and Commonwealth Affairs (see Domestic Law, below). The Divisional Court had “real doubts” as to the approach taken in R (B) but concluded that it was bound to follow it as a matter of precedent, and that it would in any event be strong persuasive authority. Although the death penalty was contrary to Protocol No. 13 to the Convention, it was not contrary to international law and could not therefore operate to prevent the UK’s compliance with its international law obligation to transfer. The Divisional Court concluded that there were not substantial grounds for believing that the applicants were at real risk of a flagrantly unfair trial, contrary to Article 6, or of exposure to ill-treatment contrary to Article 3, either as a result of treatment in custody or the death penalty following an unfair trial.
However, the Divisional Court granted permission to appeal to the Court of Appeal because of the “real doubts” it had about the legal basis of its decision in a case which was of “obvious difficulty and importance”, and where it was “seriously troubled” about the outcome because, on its own assessment of the facts, there were substantial grounds for believing that the applicants were at real risk of the death penalty if transferred to the Iraqi authorities.
The applicants sought and were refused an undertaking from the Government that they would not be transferred pending the determination of their appeal to the Court of Appeal. The applicants accordingly sought an interim injunction from the Divisional Court on 19 December 2008, prohibiting their transfer until the determination of the appeal so as to protect, inter alia, their right to an effective remedy under Article 13.
The Government asserted that it had no legal power to hold the applicants beyond 31 December 2008 and that to ask the Iraqi authorities to consent to the UK continuing to hold them would have been ineffective and placed other negotiations at risk. They contended that an order would be wrong for the same reasons.
The Divisional Court refused to grant the applicants interim relief preventing their transfer until determination of the appeal, but noted that:
“We are deeply conscious of the seriousness of the consequences of our not issuing an injunction against the Secretary of State and therefore allowing the possibility of the claimants being transferred into the custody of the Iraqi court. We are also deeply conscious of the seriousness of the consequences of our granting such an injunction.”
The Divisional Court nevertheless considered that it would be “wholly wrong” not to grant sufficient injunctive relief to protect the applicants’ right to appeal against the refusal to grant ongoing injunctive relief. The Court was “simply not prepared to take the risk that the applicants will be transferred into the custody of the Iraqi court before they have the opportunity to exercise their right to go to the Court of Appeal in relation to the matter of interim relief.” Injunctive relief was therefore granted prohibiting the applicants’ transfer until 4 p.m. on 22 December 2008 to allow an application for interim relief to be made to the Court of Appeal. An application was accordingly lodged with the Court of Appeal at 3.50 p.m. on 19 December 2008 and a hearing fixed for 12 p.m. on 22 December 2008.
Detailed written submissions were lodged with the Court of Appeal by the Applicants, setting out why a failure to grant interim relief would render ineffective the appeal which the applicants had been granted permission to bring and accordingly undermine their right of unimpeded access to the courts, as well as their right to an effective remedy under Article 13. The Government lodged submissions and evidence to the effect that the UK Forces had no extant power to continue to hold the Applicants, and a fortiori had no power to do so after the UN mandate for the MNF ceased at midnight on 31 December 2008.
On 22 December 2008 the Court of Appeal ordered that the full appeal hearing take place on 29-30 December 2008, and that the applicants’ transfer be prohibited until 4.30 p.m. on 30 December 2008.
The Court of Appeal heard submissions until 2.26 p.m. on 30 December 2008 and dismissed the applicants’ appeal at 2.29 p.m., with the following short oral reasons:
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  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 they 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.”
The Court of Appeal refused the applicants permission to appeal to the House of Lords, stating that:
“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.”
The Court of Appeal also refused to grant the applicants interim relief pending either an application to the House of Lords for permission to appeal and interim relief, or to this Court for interim measures (despite being told that such an application was pending). Shortly after 3 p.m. the Court of Appeal lifted the injunction preventing the applicants’ transfer until 4.30 p.m. on the same day, notwithstanding the request by counsel for the applicants that this be left in place to at least allow the legal team to contact the applicants in Iraq to tell them the appeal had been dismissed and that they were liable to transfer at any time.
The applicants’ counsel had been in contact with the Judicial Office of the House of Lords prior to 30 December 2008, and had been advised that there was no provision for urgent applications to the House during the Christmas vacation. It would therefore not be possible for any application for interim relief or for permission to appeal to be heard prior to the start of the new term on 12 January 2009 (a fact of which both the Court of Appeal and the Government were aware).
The Court of Appeal handed down its full written judgment on 21 January 2009.
On 16 February 2009 the House of Lords refused the applicants leave to appeal.
5. The Rule 39 interim measures and the applicants’ transfer
On 22 December 2008, prior to the Court of Appeal hearing on interim relief, the applicants lodged an urgent application for interim measures under Rule 39 of this Court’s Rules. The Government made written representations to the Court as to why the applicants’ application should not be granted, copies of which were provided to the applicants.
Very shortly after being informed of the ruling of the Court of Appeal on 30 December 2008, the Court gave an indication under Rule 39, informing the Government that the applicants should not be removed or transferred from the custody of the United Kingdom until further notice.
At 4 p.m. on 31 December 2009, the Government informed the applicants’ solicitors and the Court that the applicants had been transferred earlier that day.
In their letter to the Court the Government stated:
“...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.”
At 5.06 p.m., in case the applicants had not yet completely left the control of the UK Forces, their solicitors served on the Government an application for an urgent injunction prohibiting the transfer of the applicants out of the jurisdiction of the UK Forces in accordance with this Court’s interim measures order, stating in the covering letter that they should not take “any step whatsoever to facilitate in any way including by omission the transfer or removal of our clients in breach of the interim measures.”
Following an ex parte telephone hearing with the applicants’ counsel, the duty High Court judge granted the following order at approximately 5.30 p.m.:
“The defendant (the Secretary of State for Defence), his servants or agents BE PROHIBITED from transferring or facilitating the transfer of the Applicants from the physical custody of the British Authorities in Iraq and from Basra International Airport in particular into the physical (that is de facto) custody of the Iraqi Authorities there [sic] servants or agents so as to give effect to the order of the European Court of Human Rights dated 30.12.08, application number 61498/08. This order to remain in effect until further order.”
At a hearing before the duty judge at 8.30 p.m. on 31 December 2008 the Government applied to have the order rescinded on the basis that it was futile because the applicants had been transferred to Iraqi custody at 2.20 p.m. The order was rescinded at 9.30 p.m.
6. The current position
The applicants’ legal team have not been able to make direct contact with the applicants since their transfer, despite their requests to the Government that this be facilitated. It is understood from contact with the Iraqi Rabita League that the applicants have been told they will be transferred to Rusafa Compound 1. The applicants’ families visited them in prison in January 2009 and have provided some details to the applicants’ legal team about the circumstances of the transfer. However, in practical terms, all effective communication with the applicants has been lost. The applicants’ legal team are unaware of what stage the criminal proceedings against the applicants before the IHT have reached, when any trial is likely to commence or how long it is likely to last.
B. Relevant United Kingdom law
1. R (B) v. Secretary of State for Foreign and Commonwealth Affairs  EWCA Civ 1344.
The claimants in R (B) were two Afghani minors, who had sought asylum in Australia and who had been placed in an immigration detention centre. They escaped and claimed refuge at the British Consulate in Melbourne, alleging that the conditions at the detention centre were inhuman and degrading. Having taken advice, the consular officials informed the boys that, unless they left voluntarily, they would be returned to the Australian authorities. The claimants left of their own accord, but then brought proceedings under the Human Rights Act, claiming that by failing to protect them from indefinite detention by the Australian authorities in the inhuman conditions of the detention centre, the British authorities had violated their rights under Articles 3 and 5 of the Convention.
The Court of Appeal held that the Human Rights Act required public authorities of the United Kingdom to secure those Convention rights defined in Section 1 within the jurisdiction of the United Kingdom, as that jurisdiction had been identified by the Strasbourg Court. The Human Rights Act was, therefore, capable of applying to the actions of the diplomatic and consular officials in Melbourne. It held further that:
“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.”
It examined the concept of “diplomatic asylum” under international law and 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.”
C. The Iraq High Tribunal
The IHT was established by CPA Order Number 48, of 10 December 2003 wherein the CPA delegated to the IGC:
“to establish an Iraqi Special Tribunal (the “Tribunal”) 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 ...”
The Constitution of Iraq (CoI) recognises the IHT at Article 134, as follows:
“The Iraqi High Tribunal shall continue its duties as an independent judicial body, in examining the crimes of the defunct dictatorial regime and its symbols. The Council of Representatives [i.e., National Assembly] shall have the right to dissolve it by law after the completion of its work.”
The IHT has competence to determine cases involving “war crimes” (Article 10 and 13 Founding Statute, see Appendix to CPA Order Number 48 and Law No 10 of 2005). Accordingly, the IHT has exclusive jurisdiction over the charges faced by the applicants.
All convictions by the IHT trial chambers which result in a death penalty or life sentence are automatically referred to the appellate chamber for cassation. The IHT has handed down trial and appellate judgements in two cases: Dujayl and Anfal. A trial judgment was rendered in the 1991 Uprising trial on 2 December 2008. The Merchants case is ongoing, and a new trial was opened on 28 December 2008 with 24 defendants for crimes committed against the Islamic Dawa Party by the Ba’athist regime.
There were eight accused in Dujayl; seven of whom were convicted in November 2006, of whom four (including Saddam Hussein) were given capital sentences, all of which were carried out in late 2006 and early 2007. There were seven accused at the start of Anfal; this number was reduced to six upon the execution of Saddam Hussein. Of the remaining six accused, five were convicted of various crimes, including the crime of genocide, in June 2007. Three of the five convicted, including Ali Hassan Al-Majid (popularly known as Chemical Ali), were sentenced to death by hanging. Of the 15 accused in 1991 Uprising, 12 were convicted and of those, two were sentenced to death. In summary, 24 of the 30 prosecutions have resulted in convictions (80%) and, of those convictions, nine out of 24 have been punished with death sentences (37.5%).
The fairness of trials before the IHT has been the subject of criticism from human rights groups and international bodies, focusing both on the independence of that Court and its general ability to conduct a trial capable of meeting international requirements. Thus, in a report dated November 2006, the International Center for Transitional Justice stated:
“The first and most serious issue is that of political attacks on the independence of the judiciary. Iraqi political leaders have continually made remarks and exerted pressure, creating an atmosphere that is not conducive to the exercise of the presumption of innocence or to fair trials. Judge Rizgar Amin, who initially presided over the Dujail trial, resigned in January 2006, following criticism of his courtroom demeanor by senior political figures and the public. In the same month, the ICTJ was told that members of the executive reportedly threatened to cut judicial allowances, following unfavorable media coverage of the IHT. Judge Abdullah al-Amiri, who was presiding over the second trial chamber, was removed on September 19, 2006, following an outcry from the prime minister’s office, parliamentarians, and the public at his comment that Saddam Hussein was ‘not a dictator.’
Such direct and indirect forms of interference are intended to have a chilling effect on the behavior of the remaining judges. The political message is clear: if judges are seen as too lenient in their courtroom demeanor or judgments, they will be removed. Internal judicial processes for evaluating the conduct and possible bias of judges, and resulting in their disqualification, have been completely ignored. Other remarks by political leaders have eroded the presumption of innocence and given the impression that the trials are a foregone conclusion. It is difficult to think of a more blatant attack on the independence of thejudiciary.
A second vital issue concerns the repeated interventions in judicial selection by the Higher National De-Ba’athification Commission. The IHT has undergone several rounds of de-Ba’athification, a politicized process which has ignored the high threshold required by international standards before judges can be removed from ongoing cases.
A number of other factors have contributed to the politicization of the Dujail trial and its inability fully to affirm the centrality of the rule of law in the Iraqi context:
• Perceptions regarding legitimacy...
• Failure to apply legal rules during the proceedings...
• Judicial demeanor and impact on impartiality...”
The UN General Assembly’s Human Rights Council Working Group on Arbitrary Detentions found, in Opinion 31/2006, in relation to Saddam Hussein:
22. In Opinion No. 46/2005, the Working Group had clearly stated that the proper way to ensure that the detention of Mr. Saddam Hussein did not amount to arbitrary deprivation of liberty would be to ensure that his trial was conducted by an independent and impartial tribunal in strict conformity with international human rights standards. It is unfortunate to notice that Mr. Saddam Hussein’s trial was conducted and ended with a series of violations of the right to defence and to a fair trial, in breach of article 14 of the Covenant, to which Iraq and the United States are parties.
23. More specifically, the Working Group finds that Saddam Hussein did not enjoy the right to be tried by an independent and impartial tribunal as required by article 14 (1) of the Covenant. As reported by the source, the presiding judge of the chamber trying Saddam Hussein changed twice, both times as a result of political pressure exercised on the Supreme Iraqi Criminal Tribunal. The current presiding judge is reported to have made statements incompatible with the requirement of impartiality and the presumption of innocence enshrined in article 14 (2) of the Covenant. The known circumstances surrounding the changes of the presiding judge of the trial chamber render the fact that the identities of the other judges composing the chamber are not known all the more worrying. As pointed out by the source, neither the defendants nor the public are in a position to verify whether these judges meet the requirements for judicial office, whether they are affiliated with political forces, or whether their independence and impartiality is otherwise undermined.
24. Saddam Hussein did not “have adequate time and facilities for the preparation of his defence”, as required by article 14 (3) (b) of the Covenant. The severe restrictions on his access to the lawyers of his own choosing and the presence of United States officials at such meetings violated his right to communicate with counsel. The assassination of two of his counsel in the course of the trial, Mr. Sadoun al-Janabi on 20 October 2005 and Mr. Khamis al-Obedi on 21 June 2006, seriously undermined his right “to defend himself [...] through legal assistance of his own choosing” enshrined in article 14 (3) (d) of the Covenant (in addition to being, first of all, a tragedy in its own right).
25. Finally, Saddam Hussein did not enjoy the possibility “to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him”, as required by article 14 (3) (e) of the Covenant. This guarantee was undermined by the failure to adequately disclose prosecution evidence to the defendants, the reading into the record of affidavits without an adequate possibility for the defence to challenge them, and the sudden decision of the presiding judge to cut short the defence case on 13 June 2006.
In a report entitled “The Poisoned Chalice: A Human Rights Watch Briefing Paper on the Decision of the Iraqi High Tribunal in the Dujail Case, June 2007”, Human Rights Watch commented:
At one point in its decision, the IHT trial chamber stated that “even if the judge is certain of what he heard or saw in terms of acts the defendants have been charged with, he cannot rule on the basis of his personal knowledge.” In fact, as this review has demonstrated, a great deal of the critical factual findings in the trial chamber decision were not based on the evidence before it and appear to derive from the judges’ personal views about what “every Iraqi knew.” The tragedy of the Dujail case was that it failed to establish a credible and reliable record of what “every Iraqi knew.” Instead, it has left a decision riddled with such basic legal errors and doubtful factual findings that it cannot withstand scrutiny. Both the trial and the decision reflect the wholly inadequate international legal expertise of the IHT judges and lawyers, and a climate of intense political pressure created by the Iraqi government—which made it clear in numerous ways that acquittal or any form of leniency was not an option.
The IHT’s inability to try the Dujail case fairly and in accordance with the relevant international criminal legal standards calls into question its credibility as a judicial institution. There is a serious risk that all future trials will be marred by the same kinds of procedural and substantive flaws that this briefing paper and Judging Dujail document.”
The method of execution of civilians in Iraq is “hanging of the condemned person by the neck until he is dead.” The procedure by which the death penalty is implemented is set out in paragraphs 285-293 of the Iraqi Law on Criminal Proceedings.
In the proceedings before the Divisional Court in the present case, the applicants submitted evidence that the manner in which hangings are carried out following death sentences from the IHT is seriously and fundamentally flawed. They cited as examples the availability on the internet of footage of Saddam Hussein’s execution, showing him being jeered at and taunted in the moments before his death. Subsequent to this execution, the Iraqi Government made undertakings that the procedure in relation to hangings had been improved. Notwithstanding, the hanging of Barzan Hassan in 2007 following conviction and sentence by the IHT resulted in his being decapitated due to errors in calculation about the appropriate length of the rope. The errors in procedure were sufficiently grave to warrant the then United Nations High Commissioner for Human Rights, Louise Arbour, submitting an amicus curiae application in the sentencing of Taha Yasseen Ramadan before the IHT because of the real risk that the method of execution would itself amount to a breach of Article 7 of the ICCPR (torture, cruel, inhuman or degrading treatment and punishment).
The applicants complain that their transfer to the Iraqi authorities on 31 December 2008 gave rise to violations of Articles 2, 3, 6, 13 and 34 of the Convention and of Article 1 of Protocol No. 13 to the Convention.
2. Was the United Kingdom under an international law obligation to transfer the applicants to the Iraqi authorities? If so, what was the effect of this international law obligation on the United Kingdom’s obligations under the Convention?
3. At the time of the transfer, was there a real risk that the applicants would be subjected to the death penalty, in breach of Article 1 of Protocol No. 13 to the Convention?
4. At the time of transfer, was there a real risk that the applicants would be subjected to treatment contrary to Article 2 of the Convention, either by extra-judicial killing or because of the imposition of the death penalty following an unfair trial?
5. At the time of the transfer, was there a real risk that the applicants would be subjected to treatment contrary to Article 3 of the Convention, either because of ill-treatment in detention, the imposition of the death penalty after an unfair trial or as a result of execution by hanging?
6. At the time of transfer, was there a real risk that the applicants would be subjected to a flagrant denial of justice, in breach of Article 6 of the Convention?
7. Was there an objective impediment which prevented the United Kingdom from complying with the Court’s indication under Rule 39 of the Rules of Court? Has there been a violation of Article 34 of the Convention?
8. Did the transfer of the applicants at a time when proceedings were still pending before the House of Lords give rise to a violation of their right to an effective remedy under Article 13 of the Convention?
9. In the event that the Court finds that the transfer of the applicants gave rise to one or more breaches of the Convention, what measures would it be appropriate and/or necessary for the Court to indicate in order to remedy the breach or breaches?