I can’t find no other 2008 UNSCR resolution which is relevant, as 1830 (2008) only speaks of UNAMI, not the MNF and 1859 (2008) concerns other stuff.

So, not silly you. I think.

I agree entirely on your point (1), as to the conceptual distinction between Art 2 and Art 3 non-refoulement. My problem is with the facts: if Art 2 non-refoulement applies whenever there is a serious risk that the death penalty may be imposed, then all that the Court said on Art 3 non-refoulement necessarily implies, to my mind, that Art 2 was also violated. It is, dare I say, obvious, if the law is what the Court said it is in para. 123. I just don’t see why they thought it unnecessary to rule on Art 2, when they basically did it already.

As for (2), you are quite right that Behrami is potentially applicable. Indeed, I am sure that in Al-Jedda we will see it raise its ugly head again – the Court will then have the option of saying (i) that the actions of UK troops in Iraq are in fact attributable to the UN, to expected massive outcry; (ii) that Behrami is wrongly decided (fat chance, at least so soon); (iii) distinguishing Behrami on the facts, i.e. Iraq from Kosovo, on rather unpersuasive grounds, as the House of Lords did in Al-Jedda.

I am now totally speculating here, but the Chamber in Al-Saadoon didn’t mention Behrami probably because the parties didn’t raise it, and it most certainly wasn’t going to raise of its own volition – but I may be wrong, of course.

thanks for your interesting and very timely contribution – as usual.

Two comments.

You say:

“What I do find somewhat strange is the Court’s ruling that because there was a violation of Article 3, there was no need for it to decide whether there was a violation of Article 2 and Protocol 13 (paras. 144-145). Bearing in mind all that it said with regard to non-refoulement under Article 2, the finding of a violation under Article 3 necessarily implies a violation of Article 2. Perhaps I am missing something, but I don’t see how it could be the case otherwise.”

I agree with you that there is something unclear here, but I don’t think that – as the court construed it – a violation of Article 3 necessarily implies a violation of Article 2. Rather, they both may apply.

One way to read the judgment is that instead of finding a violation of non-refoulement under a ‘Soering expansion’ of Article 2 [as 'amended' after Protocol 13], the Court decided that Article 3 itself was directly engaged because ‘through the actions and inaction of the United Kingdom authorities the applicants have been subjected, since at least May 2006, to the fear of execution by the Iraqi authorities’ (§ 144). Indeed, ‘It is reasonable to assume that this fear caused the applicants intense psychological suffering’ (§ 136).

So all the discussion on Article 2 preceding this was mainly to rebut the argument that the ‘fear of death penalty’ could not engage Article 3 because Article 2 expressly provided for the death penalty exception. Now that we are not in Soering years anymore, and Protocol 13 is here, we can:

1) *not only* have a ‘Soering-type’ expansion of Article 2 itself (as it was done with Article 8, and others), so that a ‘non-refoulement’ obligation becomes embedded in Article 2 (and Article 1 protocol 13) (§§ 123-125 of the judgment);

2) *but also* now interpret Article 3 ill-treatment as including the fear of execution by death penalty (§ 144).

Why the court thought that it had to choose between 1) and 2), rather than applying both, is, as you say, a bit puzzling. This may perhaps be because the Soering-type expansion is already ‘jus praetorium’ (albeit a consistently followed and welcome addition to Convention obligations), and the court prefers to stick to ‘clearer’ substantive obligations such as ‘plain’ suffering under Article 3 when it has a choice to do so?

And now to my second comment.

Why didn’t the court even mention Behrami? Why would K-FOR action ‘under UN auspices’ be attributable to the UN, while detentions in Iraq, also authorized by the Security Council, not be attributed? Of course Behrami is wrong, as you and I and the rest of the world have been saying since, but shouldn’t one expect at least a passing remark on the question of attribution? Do we take this as a big silent ‘oh, sorry, we got that wrong’ kind of thing? Or am I missing something?