R (Al-Saadoon & Mufdhi) v. Secretary of State for Defence

* R (Al-Saadoon & Mufdhi v. Secretary of State for Defence (UK) (High Court of Justice, Dec. 19, 2008)

Last Friday, a British court issued an opinion addressing the extent to which Iraqi citizens held by the British military in Iraq may invoke the protections of the European Convention on Human Rights  and the Human Rights Act 1998, and in particular whether such detainees may resist transfer to Iraqi custody based on concerns relating to fear of torture, unfair trial, or execution.  Jacob Cogan provides a nice summary on his blog, which appears below.

R (Al-Saadoon & Mufdhi) v. Secretary of State for Defence

On Friday, a two-judge panel of the High Court of Justice decided R (Saadoon & Mufdhi) v. Secretary of State for Defence. (Judgment here; Guardian story here.) The question was the lawfulness of the proposed transfer of two Iraqi nationals, who are accused of the murder of two British soldiers, from British custody in Iraq to Iraqi custody for trial by the Iraqi High Tribunal. The claimants argued (para. 2) that “(i) they are within the jurisdiction of the United Kingdom for the purposes of article 1 of the European Convention on Human Rights (“the Convention”) and the Human Rights Act 1998 (“the HRA 1998″), so that they enjoy the full range of Convention rights; (ii) transfer to the IHT would violate their Convention rights, and therefore be in breach of s.6 of the HRA 1998, because there are substantial grounds for believing that they would be at real risk of a flagrantly unfair trial, of the death penalty, and of torture or inhuman or degrading treatment while in custody pending trial and while serving any custodial sentence, contrary to articles 2, 3 and 6 of the Convention and article 1 of protocol no. 13; (iii) the transfer would be in breach of rules of customary international law, in particular the prohibition on torture; and (iv) the transfer would also be in breach of a legitimate expectation created by what is said to be the settled policy of Her Majesty’s Government not to expose individuals to a real risk of the death penalty.” The court concluded (para. 95): “(1) the claimants are within the jurisdiction of the United Kingdom for the purposes of article 1 of the Convention and therefore of the HRA 1998; (2) in accordance with the approach in R (B) v Secretary of State for Foreign and Commonwealth Affairs, the Convention is qualified in its application by the United Kingdom’s obligation under public international law to comply with the request of the Iraqi court to transfer the claimants into the custody of the court; (3) if, however, the claimants would be exposed to such ill-treatment on transfer as to provide a justification in international law for declining to transfer them, the United Kingdom cannot then rely on its international law obligation as qualifying the application of the Convention, and the claimants can invoke the Convention and in particular the Soering principle in the normal way to resist their transfer.” With regard to the third point, the court went on to find that a transfer would not violated any British obligations under international law, and so the proposed transfer would be lawful. Having reached this conclusion, though, the court noted that the outcome would have been different if the European Convention had applied (given the risk of the death penalty being imposed and carried out), and in this regard, the court indicated (para. 204) that it would look favorably at a request for permission to appeal (presumably so that the Court of Appeal would have the opportunity to reconsider R (B) v. Secretary of State for Foreign and Commonwealth Affairs in the context of this case).

Link: http://ilreports.blogspot.com/2008/12/r-al-saadoon-mufdhi-v-secretary-of.html
Author: Jacob Katz Cogan
Publication Date: 12/20/2008 11:15:00 PM

Lead Author

Robert M. Chesney
Robert M. Chesney is Charles I. Francis Professor in Law at UT-Austin School of Law. Chesney is a national security law specialist, with a particular interest in problems associated with terrorism. Professor Chesney recently served in the Justice Department in connection with the Detainee Policy Task Force created by Executive Order 13493. He is a member of the Advisory Committee of the American Bar Association's Standing Committee on Law and National Security, a senior editor for the Journal of National Security Law & Policy, an associate member of the Intelligence Science Board, a non-resident senior fellow of the Brookings Institution, a term member of the Council on Foreign Relations, and a member of the American Law Institute. Professor Chesney has published extensively on topics ranging from detention and prosecution in the counterterrorism context to the states secrets privilege. He served previously as chair of the Section on National Security Law of the Association of American Law Schools and as editor of the National Security Law Report (published by the American Bar Association's Standing Committee on Law and National Security). His upcoming projects include two books under contract with Oxford University Press, one concerning the evolution of detention law and policy and the other examining the judicial role in national security affairs.
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