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Joshua Rozenberg
Tuesday 2nd March 2010
Inhuman and Degrading

Britain was responsible for subjecting two Iraqis to inhuman and degrading treatment, the European Court of Human Rights found today. The government was found to have been in breach of article 3 of the human rights convention, which also bans torture. Article 3 is second in importance only to the right to life and breaches by Britain are — thankfully — rare.

The court's press summary can be read here and the full judgment is here.

The case concerned the complaint by two Iraqis who were accused — and subsequently acquitted — of involvement in the murder of two British soldiers shortly after the invasion of Iraq in 2003. They complained that their transfer by the British authorities into Iraqi custody put them at real risk of execution by hanging.

The applicants, Faisal Attiyah Nassar Khalaf Hussain Al-Saadoon and Khalef Hussain Mufdhi, are Sunni Muslims from southern Iraq and former senior officials of the Ba'ath party. They are currently detained in Rusafa Prison, near Baghdad.

Following the invasion of Iraq in 2003, the applicants were arrested by British forces and detained in British-run detention facilities as they were suspected, among other things, of having orchestrated violence against the coalition forces. In October 2004 the Royal Military Police concluded that applicants had been involved in the deaths of two British soldiers, Staff Sergeant Cullingworth and Sapper Allsopp, ambushed and murdered in southern Iraq on 23 March 2003.

In December 2005 the British authorities decided to refer the murder case against the applicants to the Iraqi criminal courts. In May 2006 the applicants appeared before the Basra Criminal Court on charges of murder and war crimes. The Basra Criminal Court issued arrest warrants against them and made an order authorising their continued detention by the British Army in Basra. Subsequently, the Basra Criminal Court decided that the allegations against the applicants constituted war crimes and therefore fell within the jurisdiction of the Iraqi High Tribunal ("IHT": a court set up under Iraqi national law, to try Iraqi nationals or residents accused of genocide, crimes against humanity and war crimes allegedly committed during the period 17 July 1968 to 1 May 2003). The case was transferred to the IHT which, on 27 December 2007, formally requested the British forces to transfer the applicants into its custody; repeated requests were made to that effect until May 2008.

On 12 June 2008, the applicants brought judicial review proceedings in England challenging, among other things, the legality of their transfer. The case was heard by the Divisional Court which, on 19 December 2008, declared the proposed transfer lawful. The court found that since the applicants were held in a British military detention facility, they were within the jurisdiction of the UK as provided by article 1 (obligation to respect human rights) of the European Convention of Human Rights.

Nonetheless, the court held that under public international law the UK was obliged to surrender the applicants unless there was clear evidence that the receiving state intended to subject them to treatment so harsh as to constitute a crime against humanity.

It found no substantial grounds for believing there to be a real risk that, on being transferred, a trial against the applicants would be flagrantly unfair or that they would face torture and/or inhuman and degrading treatment. While, on the other hand there was a real risk that the death penalty would be applied if the applicants were surrendered to the Iraqi authorities, the death penalty in itself was not prohibited by international law.

The applicants' appeal was refused by the Court of Appeal on 30 December 2008. The Court of Appeal found that there was a real risk that the applicants would be executed if transferred. It concluded, however, that the UK was not exercising jurisdiction because it was detaining the applicants on Iraqi territory and on the orders of the Iraqi courts. The convention did not, therefore, apply and the UK had to respect Iraqi sovereignty and transfer the applicants.

Immediately after that decision, the applicants applied to the European Court of Human Rights for an interim measure under Rule 39 of its Rules of Court to prevent the British authorities making the transfer. On 30 December 2008 the Court indicated to the UK Government that the applicants should not be removed or transferred from their custody until further notice.

The following day the UK Government informed the Court that, principally because the UN Mandate, which authorised the role of British forces in arrest, detention and imprisonment tasks in Iraq, was due to expire at midnight on 31 December 2008, exceptionally they could not comply with the measure indicated by the Court and that they had transferred the applicants to Iraqi custody earlier that day.

The applicants' trial before the IHT started in May 2009 and ended in September 2009 with a verdict cancelling the charges against them and ordering their immediate release. Upon an appeal by the prosecutor, the Iraqi Court of Cassation remitted the case for further investigation by the Iraqi authorities and for a retrial. The applicants remain in custody.

The European Court of Human Rights considered that the United Kingdom authorities had had total and exclusive control, first through the exercise of military force and then by law, over the detention facilities in which the applicants were held. The Court found that the applicants had been within the UK's jurisdiction and had remained so until their physical transfer to the custody of the Iraqi authorities on 31 December 2008.

The court emphasised that 60 years ago, when the convention was drafted, the death penalty had not been considered to violate international standards. However, there had been a subsequent evolution towards its complete abolition, in law and in practice, within all the member states of the Council of Europe.

Two protocols to the convention had thus entered into force, abolishing the death penalty in time of war (Protocol 6) and in all circumstances (Protocol 13), and the United Kingdom had ratified them both. All but two member states had signed Protocol 13 and all but three states which had signed it had ratified it.

This demonstrated that Article 2 of the convention had been amended so as to prohibit the death penalty in all circumstances. The court concluded therefore that the death penalty, which involved the deliberate and premeditated destruction of a human being by the state authorities, causing physical pain and intense psychological suffering as a result of the foreknowledge of death, could be considered inhuman and degrading and, as such, contrary to Article 3 of the convention.

The court accepted the findings of the national courts which had concluded, shortly before the physical transfer took place, that there were substantial grounds for believing there to be a real risk of the applicants' being condemned to the death penalty and executed. It further observed that the Iraqi authorities had still not given any binding assurance that they would not execute the applicants.

Moreover, while it was impossible to predict the outcome of the new investigation and trial ordered by the Iraqi courts, there were still substantial grounds for believing that the applicants would run a real risk of being sentenced to death if tried and convicted by an Iraqi court.

The death penalty had been reintroduced in Iraq in August 2004. Nonetheless, and without obtaining any assurance from the Iraqi authorities, the UK authorities had decided in December 2005 to refer the applicants' case to the Iraqi courts and in May 2006 proceedings commenced in the Basra Criminal Court. The court considered that from that date the applicants had, at least, been subjected to a well-founded fear of execution, giving rise to a significant degree of mental suffering, which must have intensified and continued from the date they were physically transferred into Iraqi custody.

The Government had argued that they had no option but to respect Iraqi sovereignty and transfer the applicants, who were Iraqi nationals held on Iraqi territory, to the custody of the Iraqi courts when so requested. However, the court was not satisfied that the need to secure the applicants' rights under the convention inevitably required a breach of Iraqi sovereignty. It did not appear that any real attempt was made to negotiate with the Iraqi authorities to prevent the risk of the death penalty.

Moreover, the evidence showed that the Iraqi prosecutors initially had "cold feet" about bringing the case themselves, because the matter was "so high profile". This could have provided an opportunity to seek the consent of the Iraqi government to an alternative arrangement involving, for example, the applicants being tried by a UK court, either in Iraq or in the UK. It does not appear that any such solution was ever sought.

Consequently, in view of the above, the court concluded that the applicants had been subjected to inhuman and degrading treatment, in violation of Article 3.

The Iraqis were represented by the Birmingham-based law firm Public Interest Lawyers. In a statement today, the firm said:

Today's judgment from the European Court is complete vindication for Al Saadoon and Mufdhi and their legal team. The court wholeheartedly rejected the Government's case that it had no choice under international law but to hand Al Saadoon and Mufdhi to the Iraqi authorities. While the UK Government publicly proclaims to be opposed to the death penalty in all circumstances it had no qualms in transferring two men without, as the European Court notes, making any real attempt to negotiate to prevent the risk of the death penalty.

The UK Government is well aware that executions are commonplace in Iraq. At the end of 2009 it was reported that the Presidential Council of Iraq had ratified the death sentences of over 900 prisoners on death row who now face imminent execution. 

Phil Shiner of Public Interest Lawyers added:

Myself and my legal team at Public Interest lawyers are absolutely delighted by the decision of the European Court today. It is a national disgrace that our Government, in breach of an injunction by the European Court, was prepared to hand our clients to the Iraqi authorities when they knew full well that they faced the real risk of being executed by hanging. We hope that after today's ruling the Government will act with decency and take time to reflect on its past actions and the criticisms made by the Court.

It should be remembered that our clients have never been found guilty of any criminal offence. Six years after their arrest they remain in custody in Iraq and they now face a new trial. This is in spite of the fact they have already been subject to a lengthy trial where the judge concluded that there was insufficient evidence to even charge them.

 
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About Joshua Rozenberg

Joshua Rozenberg is an independent legal commentator who presents Law in Action on BBC Radio 4.

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