TU Dresden, Juristische Fakultt, Resent Developments in Regional Human Rights Systems (Prof. Dr.

Thilo Rensmann) Presentation by Bartlomiej Wilk on 10.05.2011 European Court of Human Rights, Al-Saadoon and Mufdhi v United Kingdom (Application No 61498/08) Judgment by a Chamber of the European Court of Human Rights March 2, 2011

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BACKGROUND
The applicants, Faisal Attiyah Nassar Khalaf Hussain Al-Saadoon and Khalef Hussain Mufdhi, were Iraqi nationals and former senior officials of the Baath party. Following the invasion of Iraq in March 20, 2003, they were arrested and detained in British detention as they were suspected of having orchestrated violence against the coalition forces. Major combat operations ceased at the beginning of May 2003, and the United States of America and the United Kingdom thereafter became occupying powers. In October 2004, the Royal Military Police concluded that above mentioned applicants had been involved in the deaths of two British soldiers on March 23, 2003. In August 2004, the Iraqi National Assembly reintroduced the death penalty In December 2005, the British authorities referred the case to the Iraqi criminal courts. In May 2006, the applicants appeared before the Basra Criminal Court on charges of murder and war crimes. Subsequently, the Basra Criminal Court decided that the allegations constituted war crimes and fell within the jurisdiction of the Iraqi High Tribunal, which formally requested the British forces to transfer the applicants into its custody. On June 12, 2008, the applicants brought judicial review proceedings in England. The Divisional Court declared the proposed transfer lawful and the applicants appeal was refused by the Court of Appeal. The applicants applied to the European Court of Human Rights to prevent the British authorities making the transfer. On December 30, 2008, the Strasbourg Court indicated to the UK that the applicants should not be transferred until further notice. the UK Government informed that Court that, exceptionally they could not comply with the rule 39 measure and that they had transferred the applicants to Iraqi custody. On February 16, 2009 the applicants were refused leave to appeal by the House of Lords. The applicants trial before the Iraqi High Tribunal between May and September 2009 ended with a verdict of cancellation but on appeal by the prosecutor, the Iraqi Court of Cassation remitted the case for further investigation by the Iraqi authorities and a retrial.

The European Court of Human Rights held: Article 3: death penalty Now The Court considers that, in respect of those States which are bound by it, the right under Article 1 of Protocol No. 13 not to be subjected to the death penalty, ranks along with the rights in Articles 2 and 3 as a fundamental right. The Government provided documentation voicing its opposition to the death penalty, pleas of clemency from the families of the UK servicemen, and a waiver by the UK embassy of any right to civil compensation. Iraqi authorities had still not given any binding assurance that they would not execute the applicants. Without obtaining any assurance from Iraq, 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 at least, the applicants had been subjected to a well founded fear of execution. The UK 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. But Court recalls that the Convention has special character and its approach must be guided by the fact that the object and purpose of the Convention as an instrument for the protection of individual human beings requires that its provisions be interpreted and applied so as to make its safeguards practical and effective. The outcome of the applicants case before the IHT is currently uncertain. Whatever the eventual result, however, it follows that there has been a violation of Article 3 of the Convention. Article 6: fair trial The Court accepted the national courts finding that, at the date of transfer, it had not been established that the applicants risked a flagrantly unfair trial but now there is no doubt on that and there had been no violation of article 6 Articles 34: right to petition article 13: right to effective remedy The UK Government had not informed the Court of any attempt made after the Courts indication and before the transfer to: a) explain the situation to the Iraqi authorities b) to reach a temporary solution which would have safeguarded the applicants rights until the Court had completed its examination of the case. The Court reached the conclusion on similar grounds that the effectiveness of any appeal to the House of Lords was unjustifiably nullified The Court therefore finds the complaint under Article 13 admissible and it finds violations of Articles 13 and 34 of the Convention. Article 41 The finding of a violation constituted sufficient just satisfaction for the non-pecuniary damage suffered and awarded the applicants jointly 40,000 for costs and expenses.

TU Dresden, Juristische Fakultt, Resent Developments in Regional Human Rights Systems (Prof. Dr. Thilo Rensmann) Presentation by Bartlomiej Wilk on 10.05.2011 European Court of Human Rights, Al-Saadoon and Mufdhi v United Kingdom (Application No 61498/08) Judgment by a Chamber of the European Court of Human Rights March 2, 2011

A Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949 (the Fourth Geneva
Convention) Article 77. Protected persons who have been accused of offences or convicted by the courts in occupied territory, shall be handed over at the close of occupation, with the relevant records, to the authorities of the liberated territory. Article 78. If the Occupying Power considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may, at the most, subject them to assigned residence or to internment. The Geneva Conventions Act 1957 (This statute was enacted to give effect in United Kingdom domestic law to the provisions of the 1949 Geneva Conventions) 1(1) Any person, whatever his nationality, who, whether in or outside the United Kingdom, commits, or aids, abets or procures the commission by any other person of a grave breach of any of the scheduled conventions or the first protocol shall be guilty of an offence. Joint Doctrine Publication 1-10.3 on Detainees (July 2006) The purpose of the Ministry of Defence's Joint Doctrine Publications Prisoners of War, Internees and Detainees, May 2006 Chapter 1, The Handling of Detainees 101. UK Armed Forces may be empowered under the Host Nation's (HN) law to participate in the arrest of criminal suspects or may be involved in the arrest of persons indicted for war crimes. This chapter details the arrangements for the handling of such persons when they are being temporarily detained by UK Armed Forces during military operations abroad that do not amount to International Armed Conflict. 102. Detainees are a category of prisoner distinct from PW and internees. Detainees are those individuals who, during operations abroad not amounting to International Armed Conflict, are held by UK armed forces because they have committed, or are suspected of committing, criminal offences.

B Following the formal end of the occupation to an Iraqi government on June 28, 2004, the government of interim Prime Minister Ayad
Allawi reinstated the death penalty for a wide range of offenses.. Iraqi Penal Code, arts. 85(1) and 86

C Al-Waqai Al-Iraqiya Official Gazette of the Republic of Iraq Number 10 of 2005 Law of the Supreme Iraqi Criminal Tribunal, Article 1:
First: A Tribunal is hereby established and shall be known as The Supreme Iraqi Criminal Tribunal (the Tribunal). The Tribunal shall enjoy complete independence. Second: The Tribunal shall have jurisdiction over every natural person, whether Iraqi or non-Iraqi resident of Iraq, accused of committing any of the crimes listed in Articles 11, 12, 13 and 14 of this law, committed during the period from 17 July 1968 to 1 May 2003, in the Republic of Iraq or elsewhere, including the following crimes: A. Genocide; B. Crimes against humanity; C. War crimes; and D. Violations of Iraqi laws listed in Article 14 of this law.

D COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE DIVISIONAL COURT Royal Courts of Justice, Strand,
London,Date:21/01/2009 Lord Bingham expressed his conclusion on the issue in this way: Thus there is a clash between on the one hand a power or duty to detain exercisable on the express authority of the Security Council and, on the other, a fundamental human right which the UK has undertaken to secure to those (like the appellant) within its jurisdiction. How are these to be reconciled? There is in my opinion only one way in which they can be reconciled: by ruling that the UK may lawfully, where it is necessary for imperative reasons of security, exercise the power to detain authorized by UNSCR 1546 and successive resolutions, but must ensure that the detainees rights under article 5 are not infringed to any greater extent than is inherent in such detention.

E THE EUROPEAN CONVENTION ON HUMAN RIGHTS ARTICLE 3

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

F Soering v UK [1989]
Applicant could rely on article 3 to resist extradition from the United Kingdom to the United States of America to face trial on a charge of murder which would give rise to a real risk of the death sentence and hence of exposure to the death row phenomenon

G PROTOCOL No. 13 TO THE CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS, CONCERNING THE
ABOLITION OF THE DEATH PENALTY IN ALL CIRCUMSTANCES Vilnius, 3.V.2002 The member States of the Council of Europe signatory hereto, Convinced that everyones right to life is a basic value in a democratic society and that the abolition of the death penalty is essential for the protection of this right and for the full recognition of the inherent dignity of all human beings; Wishing to strengthen the protection of the right to life guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4 November 1950 (hereinafter referred to as the Convention); Noting that Protocol No. 6 to the Convention, concerning the Abolition of the Death Penalty, signed at Strasbourg on 28 April 1983, does not exclude the death penalty in respect of acts committed in time of war or of imminent threat of war; Being resolved to take the final step in order to abolish the death penalty in all circumstances, Have agreed as follows: Article 1 Abolition of the death penalty The death penalty shall be abolished. No one shall be condemned to such penalty or executed. Article 2 Prohibition of derogations No derogation from the provisions of this Protocol shall be made under Article 15 of the Convention. Article 3 Prohibition of reservations No reservation may be made under Article 57 of the Convention in respect of the provisions of this Protocol.

TU Dresden, Juristische Fakultt, Resent Developments in Regional Human Rights Systems (Prof. Dr. Thilo Rensmann) Presentation by Bartlomiej Wilk on 10.05.2011 European Court of Human Rights, Al-Saadoon and Mufdhi v United Kingdom (Application No 61498/08) Judgment by a Chamber of the European Court of Human Rights March 2, 2011

H All but two of the Member States have now signed Protocol No. 13 and all but three of the States which have signed have ratified it.
These figures, together with consistent State practice in observing the moratorium on capital punishment, are strongly indicative that Article 2 has been amended so as to prohibit the death penalty in all circumstances.

I THE EUROPEAN CONVENTION ON HUMAN RIGHTS ARTICLE 2

1.Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2.Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.

J CPA Memorandum No.3 (Revised) issued on 27 June 2004

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.

K DIVISIONAL COURT Royal Courts of Justice Strand, London, WC2A 2LL Date: Friday, 19th December 2008, (162-178)
It is true that protocol no. 13 represents a near consensus among contracting states of the Council of Europe, though two contracting states have not signed or ratified it. The same consensus can be seen in European Council Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals as refugees or as persons who otherwise need international protection and the content of the protection granted. In that directive, serious harm for the purposes of the test of persecution is defined in article 15 as including death penalty or execution. There are, however, many other countries, of which the United States of America is an obvious example, where the death penalty is still imposed for serious crimes. Furthermore the UN Human Rights Committee, in its General Comment No. 6, on article 6 of the International Covenant on Civil and Political Rights 1966 (the right to life), states: While it follows ... that States parties are not obliged to abolish the death penalty totally they are obliged to limit its use and, in particular, to abolish it for other than the most serious crimes . The Committee is of the opinion that the expression most serious crimes must be read restrictively to mean the death penalty should be a quite exceptional measure. It follows that, however repugnant the death penalty may be within our domestic legal system and under the Convention, its imposition would not be contrary to international law. The risk that the claimants may be subject to the death penalty does not, therefore, operate to relieve the United Kingdom of its obligation to transfer the claimants into the custody of the Iraqi court (.)

L THE EUROPEAN CONVENTION ON HUMAN RIGHTS ARTICLE 6

1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly by the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and the facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

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M 2008 Human Rights Watch The Quality of Justice Failings of Iraqs Central Criminal Court
1. Delays in Hearings 2. Lack of Evidence and Reliance on Secret Informants 3. Concerns about the fairness of those proceedings. Torture and other forms of abuse in Iraqi detention facilities as well as elicit confessions in early stages of detention, are well documented in UNAMI Human Rights Report, 1 July-31 December 2007 4. The reliance on confessions in the courts proceedings, coupled with the absence of physical or other corroborating evidence, raises the possibility of serious miscarriages of justice

N THE EUROPEAN CONVENTION ON HUMAN RIGHTS ARTICLE 13

Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.

TU Dresden, Juristische Fakultt, Resent Developments in Regional Human Rights Systems (Prof. Dr. Thilo Rensmann) Presentation by Bartlomiej Wilk on 10.05.2011 European Court of Human Rights, Al-Saadoon and Mufdhi v United Kingdom (Application No 61498/08) Judgment by a Chamber of the European Court of Human Rights March 2, 2011

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WHAT THEN WITH AL-SAADOON? The UK will probably ask for a referral to the Grand Chamber. It should be noted that if the Grand Chamber takes the case, it can deal both with the Article 1 jurisdiction issue and with the merits. The Grand Chamber would rule probably the same on the merits, but the extraterritorial application issue may be revisited, for better or for worse. Most importantly, the Grand Chamber will be holding hearings on similar cases Al-Skeini and Al-Jedda on 9 June. SIMILAR CASES Hakizimana v. Sweden (dec.), no. 37913/05, 27 March 2008 S.R. v. Sweden (dec.), no. 62806/00, 23 April 2002 Ismaili v. Germany (dec.), no. 58128/00, 15 March 2001 Kaboulov v. Ukraine, no. 41015/04, 99, 19 November 2009 R (B) v Secretary of State for Foreign and Commonwealth Affairs [2005] R (Al-Skeini) v Secretary of State for Defence [2008] R (Al-Jedda) v Secretary of State for Defence [2008] R (Ullah) v Special Adjudicator [2004] Soering v UK [1989] Nada v Switzerland [2011]

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NON-REOFULEMENT A principle in international law, specifically refugee law, that concerns the protection of refugees from being returned to places where their lives or freedoms could be threatened. Unlike political asylum, which applies to those who can prove a well-grounded fear of persecution based on membership in a social group or class of persons, non-refoulement refers to the generic repatriation of people, generally refugees into war zones and other disaster areas. Non-refoulement is a jus cogens (peremptory norm) of international law that forbids the expulsion of a refugee into an area where the person might be again subjected to persecution. The 1951 Refugee Convention, UNHCR, Article 33 Prohibition of expulsion or return (refoulement) 1. No Contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.

4. OTHER ASPECTS The Court considers in any event that the facts of the present case are such as clearly to distinguish it from a situation of diplomatic asylum Diplomatic and consular premises have a particular status under international law. When a State sets up a diplomatic mission it agrees to respect the laws of the territorial State and not to interfere in its internal affairs (Vienna Convention on Diplomatic Relations, Article 41 1 In contrast, in the present case, the applicants did not choose to seek refuge with the authorities of the United Kingdom; instead, the respondent States armed forces, having entered Iraq, took active steps to bring the applicants within the United Kingdoms jurisdiction, by arresting them and holding them in British-run detention facilities. The Court considers that the respondent State was under a paramount obligation to ensure that the arrest and detention did not end in a manner which would breach the applicants rights under Articles 2 and 3 of the Convention and Article 1 of Protocol No. 13.

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WEBSITES (LAST VIEWED 02.05.2011) http://www.ictj.org/static/MENA/Iraq/iraq.statute.engtrans.pdf http://www.hrw.org/en/reports/2008/12/14/quality-justice-0 http://www.ictj.org/static/MENA/Iraq/iraq.statute.engtrans.pdf http://www.statewatch.org/news/2003/jul/prot13.pdf http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N07/650/72/PDF/N0765072.pdf?OpenElement http://business.timesonline.co.uk/tol/business/law/reports/article7055342.ece http://www.ejiltalk.org/al-saadoon-and-mufdhi-merits-judgment/ http://www.hrlrc.org.au/court-tribunal/european-court-of-human-rights/al-sadoom-and-mufdhi-v-united-kingdom-2010-echr282-2-march-2010/