Today a Chamber of the European Court of Human Rights made public its admissibility decision in Al-Saadoon and Mufdhi v. United Kingdom, App. No. 61498/08, a very important case. In brief, the facts are these: the applicants were detained by UK forces in Iraq, and first complained to English courts, and then to the European Court, that their requested transfer to Iraqi authorities would violate the non-refoulement obligations of the UK, inter alia under Art. 2 ECHR, as there was a serious risk that they would be subjected to the death penalty. The first issue to be decided in the case is whether the ECHR applies extraterritorially to the applicants, i.e. whether the applicants could be said to fall within the UK’s jurisdiction within the meaning of Art. 1 ECHR. The Chamber found that the applicants were within the UK’s jurisdiction, and declared the application admissible. But first, some background.
In the Al-Skeini case before the UK domestic courts, the UK government conceded that the ECHR applies to persons detained by UK forces in Iraq. It thus had to come up with something new to deny the extraterritorial applicability of the ECHR to Al-Saadoon and Mufdhi, and that it did. It argued that the applicants were held by UK forces at the order of an Iraqi court, and that the UK had a legal obligation to abide by the ruling of that court and transfer them to Iraqi authorities since UK forces were present in Iraq with Iraq’s consent, and pursuant to the terms of a memorandum of understanding between the UK and Iraq. Thus, because it had no independent legal authority to detain the applicants, argued the government, they were not within the UK’s jurisdiction.
In its decision, the High Court did not accept this argument, ruling that the applicants were indeed within the UK’s jurisdiction. It held, however, that ECHR non-refoulement principle had to be qualified (pursuant to a Court of Appeal precedent that the High Court knew was wrongly decided, but had to follow anyway), because the UK had a legal obligation to transfer the applicants to Iraq. On appeal, the Court of Appeal agreed with the government’s argument, finding that the ECHR did not apply because the UK did not have independent legal authority to detain the applicants.
I have argued at length elsewhere why the concept of Art. 1 jurisdiction is not predicated on legal authority over individuals, but on factual authority and control over territory and (possibly) individuals. This is what, in my view, makes the Al-Saadoon decision of the Court of Appeal so thoroughly mistaken. It does, however, have a degree of support in Bankovic v. Belgium, the bete noire of all decisions dealing with the extraterritorial application of human rights treaties.
The applicants promptly moved to the European Court, and obtained a provisional measures order prohibiting their transfer to Iraqi authorities. And, for the first time in many years, the UK government decided to disobey such an order by the European Court, and did actually transfer the applicants. (In norm conflict terms, the government founds itself in an unresolvable norm conflict of its own creation; the ECHR, at least through a provisional order of the Court, required it not to surrender the applicants; its consensual presence in Iraq and its MoU with the Iraqi government required it to do the contrary, and it had to make a political choice as to which obligation it would fulfill. For more commentary on Al-Saadoon up to today’s decision, see these excellent posts by Tobias Thienel: here, here, and here. See also our discussion from yesterday in comments to Dapo’s post.
This finally brings me to today’s decision. Its paragraphs relevant to the jurisdiction issue, 84-89, are quite brief. Paras. 84-85, setting out the applicable general principles, are somewhat problematic in that they reflect the Bankovic-induced conceptual confusion between the Art. 1 notion of jurisdiction and the notion of jurisdiction in general international law which delimits the municipal legal orders of states (on which see more my HRLR paper cited above). The money paragraphs, however, are 87-89:
87. During the first months of the applicants’ detention, the United Kingdom was an occupying power in Iraq. The two British-run detention facilities in which the applicants were held were established on Iraqi territory through the exercise of military force. The United Kingdom exercised control and authority over the individuals detained in them initially solely as a result of the use or threat of military force. Subsequently, the United Kingdom’s de facto control over these premises was reflected in law. In particular, on 24 June 2004, CPA Order No. 17 (Revised) (see paragraph 13 above) provided that all premises currently used by the MNF should be inviolable and subject to the exclusive control and authority of the MNF. This provision remained in force until midnight on 31 December 2008 (see paragraphs 20-21 above).
88. The Court considers that, given the total and exclusive de facto, and subsequently also de jure, control exercised by the United Kingdom authorities over the premises in question, the individuals detained there, including the applicants, were within the United Kingdom’s jurisdiction (see Hess v. the United Kingdom, no. 6231/73, Commission decision of 28 May 1975, Decisions & Reports vol. 2, p. 72). This conclusion is, moreover, consistent with the dicta of the House of Lords in Al-Skeini and the position adopted by the Government in that case before the Court of Appeal and House of Lords (see paragraph 62 above).
89. In the Court’s view, the applicants remained within the United Kingdom’s jurisdiction until their physical transfer to the custody of the Iraqi authorities on 31 December 2008. The questions whether the United Kingdom was under a legal obligation to transfer the applicants to Iraqi custody and whether, if there was such an obligation, it modified or displaced any obligation owed to the applicants under the Convention, are not material to the preliminary issue of jurisdiction (see, mutatis mutandis, Bosphorus, cited above, § 138) and must instead be considered in relation to the merits of the applicants’ complaints.
Note the several moves that the Court makes. First, it does not accept the general theory of Art. 1 jurisdiction offered by the applicants as de facto authority and control over individuals – indeed, it couldn’t have done so without disagreeing with the Grand Chamber’s decision in Bankovic. Second, what it does in para. 88 is posit jurisdiction as control not over a territory or a wider geographical area, but control over a place, the detention facility in which the applicants were kept. This is a very clever way of developing the Loizidou effective overall control of an area notion of jurisdiction, but it has its limitations, on which more in a future post. Readers might wish to compare Art. 4(1) of the Optional Protocol to the CAT and recall one of the recently released OLC torture memos, which disputed that the CAT applied extraterritorially, since secret CIA prisons in which the high value detainees were held were not located in a territory under the effective control of the US (e.g. Poland) – see more here. Third, in para. 89, like the High Court, the Chamber expressly disagrees with the Court of Appeal position that Art. 1 jurisdiction requires the exercise of legal authority, and finds that the question of what impact the UK’s legal obligation to surrender the applicants to Iraqi authorities belongs to the merits.
All in all, the Art. 1 issue was quite well done by the Chamber. It then moved to examine the other admissibility questions, declaring a small portion of the application, dealing with risk of the applicants being subjected to an extrajudicial execution, to be inadmissible because of failure to exhaust domestic remedies. The examination of the remainder was joined with the merits, because of the complexity of the issues involved. It did the same in regard of the question of the UK’s responsibility for violating the Chamber’s interim measures order.
Let me now give you a short preview of some of the issues that need to be decided on the merits, which simply make me swoon with intellectual delight in a very, very nerdy way:
(1) Does the non-refoulement component of Art. 2, taken together with Protocol 13, extend to a death penalty rendered in a proceeding that provided all necessary fair trial guarantees; cf. the Human Rights Committee’s Kindler v. Canada and Judge v. Canada cases;
(2) Regardless of (1), does a non-refoulement obligation exist if the death penalty is executed by hanging;
(3) Did the UK have an obligation in international law to transfer the applicants to Iraqi authorities? In this regard, the ICJ’s old classic the Asylum case will be of some use.
(4) If so, does that obligation have the effect of qualifying the UK’s non-refoulement obligation under (1) and (2), as the English courts held; this of course involves a host of broader norm conflict questions, fragmentation, etc (on which see more here).
(5) Further, does that obligation qualify the UK’s obligation to comply with the interim measures of the European Court.
Fantastic, no? Because of the complexity of the issues involved, it might happen that the Chamber will relinquish its jurisdiction to the Grand Chamber, and it is practically certain that the case will be referred to the Grand Chamber if the Chamber decides the case by a judgment on the merits. If that happens, the Grand Chamber might reconsider the Art. 1 jurisdiction issue, which they might do for better (by overruling Bankovic, that most horrible of cases… hope springs eternal), or for worse (a la Behrami).
We’ll see what happens, but this is a case to watch. (Incidentally, most of the stuff raised by the case was surreptitiously the subject of this year’s Jessup moot court problem. Those hordes of law students doing research may have in fact produced something useful…).