Al-Saadoon and Mufdhi Merits Judgment

The Al-Saadoon and Mufdhi v. United Kingdom (no. 61498/08) judgment by a Chamber of the European Court of Human Rights is now out (HUDOC). For our previous coverage, with links and background, see here and here. The shortest possible summary – the applicants won, and the Chamber judgment is a valuable contribution to human rights jurisprudence. Now for more detail.

Readers will recall that the basic question raised by the case is whether the transfer by the UK of the applicants who were in the custody of UK troops in Iraq to Iraqi authorities for trial violated the applicants ECHR rights, specifically the non-refoulement principle established by the Court in Soering v. UK, inter alia because there was serious risk of them being subjected to the death penalty. In Soering itself the issue was the surrender of the applicant to the US, where there was serious risk of him being subjected to the death penalty. However, the death penalty was at the time still not outlawed with respect to the UK by Protocols 6 and 13, and so the actual issue was inhuman treatment that the applicant would suffer as a consequence of the death row phenomenon. Likewise, without the two protocols, Article 2(1) ECHR specifically contemplates the death penalty, and it as such could not be held to be contrary to other provisions of the Convention, namely Article 3 prohibiting all forms of ill-treatment.

Now in Al-Saadoon we have the first merits judgment dealing specifically only with the death penalty and non-refoulement. The Court started its analysis by considering the developments in both treaty action and in its case law with regard to the death penalty since Soering:

118. 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, which admits of no derogation and applies in all circumstances, ranks along with the rights in Articles 2 and 3 as a fundamental right, enshrining one of the basic values of the democratic societies making up the Council of Europe. As such, its provisions must be strictly construed (see, mutatis mutandis, Soering, cited above, § 88; McCann and Others v. the United Kingdom, judgment of 27 September 1995, § 147, Series A no. 324).

…

120. It can be seen, therefore, that the Grand Chamber in Öcalan did not exclude that Article 2 had already been amended so as to remove the exception permitting the death penalty. Moreover, as noted above, the position has evolved since then. 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. Against this background, the Court does not consider that the wording of the second sentence of Article 2 § 1 continues to act as a bar to its interpreting the words “inhuman or degrading treatment or punishment” in Article 3 as including the death penalty (cf. Soering, cited above, §§ 102-104).

123. The Court further reiterates that expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3. In such a case Article 3 implies an obligation not to deport the person in question to that country (see Saadi v. Italy, cited above, § 125). Similarly, Article 2 of the Convention and Article 1 of Protocol No. 13 prohibit the extradition or deportation of an individual to another State where substantial grounds have been shown for believing that he or she would face a real risk of being subjected to the death penalty there (see Hakizimana v. Sweden (dec.), no. 37913/05, 27 March 2008; and see, mutatis mutandis, Soering, cited above, § 111; S.R. v. Sweden (dec.), no. 62806/00, 23 April 2002; Ismaili v. Germany (dec.), no. 58128/00, 15 March 2001; Bader and Kanbor, cited above, § 42; Kaboulov v. Ukraine, no. 41015/04, § 99, 19 November 2009).

The Court has now clearly held that Article 2 ECHR provides for a non-refoulement obligation: there can be no extradition if a serious risk of the death penalty is established, period. Recall, however, the UK government’s argument that the applicants in this case were not held in the UK, but in Iraq, and that the UK had a legal obligation to transfer them to Iraqi authorities. In the UK’s view, this necessitates that the non-refoulement obligation be qualified to take into account these exceptional circumstances, and the fact that the UK would otherwise be forced to violate its obligations towards Iraq. (Such was also the approach of the Court of Appeal in R (B) v Secretary of State for Foreign and Commonwealth Affairs ([2004] EWCA Civ 1344).

This is how the Court now approached the matter:

126. The Government contended that they were under an obligation under international law to surrender the applicants to the Iraqi authorities. In this connection, the Court recalls that the Convention must be interpreted in the light of the rules set out in the Vienna Convention on the Law of Treaties, 1969, of which Article 31 § 3(c) indicates that account is to be taken of “any relevant rules of international law applicable in the relations between the parties”. More generally, the Court recalls that the principles underlying the Convention cannot be interpreted and applied in a vacuum. The Convention should be interpreted as far as possible in harmony with other principles of international law of which it forms part (see Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 55, ECHR 2001-XI; Banković, cited above, §§ 55-57). The Court has also long recognised the importance of international cooperation (see Al-Adsani, § 54 and Bosphorus, § 150, both cited above).

127. The Court must in addition have regard to the special character of the Convention as a treaty for the collective enforcement of human rights and fundamental freedoms. 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 (see, inter alia, Soering, cited above, § 87; Loizidou v. Turkey (preliminary objections), cited above, § 72; McCann and Others, cited above, § 146).

128. It has been accepted that a Contracting Party is responsible under Article 1 of the Convention for all acts and omissions of its organs regardless of whether the act or omission in question was a consequence of domestic law or of the necessity to comply with international legal obligations. Article 1 makes no distinction as to the type of rule or measure concerned and does not exclude any part of a Contracting Party’s “jurisdiction” from scrutiny under the Convention (Bosphorus, cited above, § 153). The State is considered to retain Convention liability in respect of treaty commitments subsequent to the entry into force of the Convention (see Bosphorus, cited above, § 154 and the cases cited therein). For example, in Soering, cited above, the obligation under Article 3 of the Convention not to surrender a fugitive to another State where there were substantial grounds for believing that he would be in danger of being subjected to torture or inhuman or degrading treatment or punishment was held to override the United Kingdom’s obligations under the Extradition Treaty it had concluded with the United States in 1972.

These three paragraphs are crucial in explaining the Court’s approach to possible norm conflicts. Witness, first, how it blows both hot and cold. In para. 126 it allows for the possibility of taking into account other international obligations when interpreting the ECHR, in order to avoid possible conflict. This, of course, what the Court actually did in both Al-Adsani and in Bosphorus. Then in para. 127 it however reiterates the importance of the ECHR regime, implying that it does not avoid norm conflicts lightly. Finally, in para. 128 the Court quite rightly points out that a norm conflict also existed in Soering between the UK’s obligations under the ECHR and its obligations under the US extradition treaty, but that this was not grounds enough for reading down the ECHR.

My only quibble is with the Court’s statement that the ECHR obligations ‘was held to override’ the UK’s obligations towards the US. This is simply untrue, at least if the word ‘override’ is to be taken as implying a hierarchical relationship. The ECHR is certainly not superior law to a bilateral treaty with a non-state party. Rather, the two treaties were in an unresolvable norm conflict, with the only possible solution to that conflict being political in nature, for example a renegotiation of either one – see more here, esp. at 16-21.

Having now outlined its approach to norm conflicts, and having held that Articles 2 and 3 ECHR now generated a non-refoulement obligation with respect to the death penalty as such, the issue to be decided was whether this obligation should apply any differently to UK troops in Iraq. The Court said no:

137. Protocol No. 13 came into force in respect of the United Kingdom on 1 February 2004. The Court considers that, from that date at the latest, the respondent State’s obligations under Article 2 of the Convention and Article 1 of Protocol No. 13 dictated that it should not enter into any arrangement or agreement which involved it in detaining individuals with a view to transferring them to stand trial on capital charges or in any other way subjecting individuals within its jurisdiction to a real risk of being sentenced to the death penalty and executed. Moreover, it considers that the applicants’ well-founded fear of being executed by the Iraqi authorities during the period May 2006 to July 2009 must have given rise to a significant degree of mental suffering and that to subject them to such suffering constituted inhuman treatment within the meaning of Article 3 of the Convention.

138. The Government have contended that, in accordance with well established principles of international law, 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. In this respect, however, the Court refers to its case-law, summarised in paragraphs 126-128 above, to the effect that it is not open to a Contracting State to enter into an agreement with another State which conflicts with its obligations under the Convention. This principle carries all the more force in the present case given the absolute and fundamental nature of the right not to be subjected to the death penalty and the grave and irreversible harm risked by the applicants.

139. The domestic courts considered themselves bound by the principles of international law concerning “diplomatic asylum”, as applied by the Court of Appeal in the R(B) case (see paragraphs 58, 72 and 94 above), to find that the duty to provide refuge extra-territorially could operate only where there was clear evidence that the territorial State intended to subject the individual to treatment so harsh as to constitute a crime against humanity. It is not necessary in this judgment for the Court to examine generally the principles of “diplomatic asylum” or to establish when, if ever, the surrender of an individual by a Contracting State’s diplomatic or consular agents could give rise to a violation of the Convention. It merely notes in passing that the Commission in its admissibility decision in W.M. v. Denmark, no. 17392/90, Commission decision of 14 October 1992, Decisions and Reports 73, p. 193, appeared to assume, albeit without detailed reasoning, that the Soering principle against refoulement would apply where an individual sought and was refused refuge in a Contracting State’s embassy.

140. 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”, for the following reasons. 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: see paragraph 93 above); this is one of the conditions on which the territorial State consents to the establishment of the mission. Thus, when an individual seeks refuge at an embassy, the obligations owed by the sending State to the territorial State are known and apply ab initio (although there may be other conflicting obligations, for example under the Convention). In contrast, in the present case, the applicants did not choose to seek refuge with the authorities of the United Kingdom; instead, the respondent State’s armed forces, having entered Iraq, took active steps to bring the applicants within the United Kingdom’s jurisdiction, by arresting them and holding them in British-run detention facilities (see Al-Saadoon and Mufdhi v. the United Kingdom (dec.), no. 61498/08, §§ 84-89, 30 June 2009). In these circumstances, 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.

141. In any event, the Government have not satisfied the Court that the need to secure the applicants’ rights under Articles 2 and 3 of the Convention and Article 1 of Protocol No. 13 inevitably required them to act in contravention of Iraqi sovereignty. It does not appear from the evidence before the Court that, despite the concerns voiced at ministerial level as early as July 2004 about the risk of the imposition of the death penalty if the applicants were tried by the Iraqi courts (see paragraph 44 above), any real attempt was made to negotiate with the Iraqi authorities to prevent it. According to the evidence of Mr Watkins before the Divisional Court and Court of Appeal (see paragraphs 56 and 66 above), it was the judgment of the United Kingdom Government towards the end of 2008 that it would not be politic even to raise with the Iraqi Government the possibility of removing the applicants to the United Kingdom or continuing to detain them in Iraq after 31 December 2008. However, it would appear from the minute of the DIRC meeting of 28 September 2004 that the Iraqi prosecutors initially had “cold feet” about bringing the case themselves, because the matter was “so high profile” (see paragraph 44 above). 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 United Kingdom court, either in Iraq or in the United Kingdom. It does not appear that any such solution was ever sought.

142. The Government accept, moreover, that no attempt was made, during the negotiations for the United Kingdom-Iraqi MoU of November 2004 or at any other time, to seek a general assurance from the Iraqi authorities that, in the light of the United Kingdom’s binding obligations under the Convention and Protocol No. 13, no individual transferred from the physical custody of the United Kingdom Armed Forces could be subjected to the death penalty. Similarly, the Government do not contend that, before the decision was made to refer the applicants’ cases to the Iraqi courts, any request was made to the Iraqi authorities for a binding assurance that, if the cases were referred, the applicants would not be at risk of capital punishment. Indeed, it would appear that it was only after the applicants had lodged an application for judicial review before the Divisional Court that a first effort was made to seek clemency on their behalf. However, as the domestic courts found, no binding guarantee was obtained.

143. In summary, therefore, the Court considers that, in the absence of any such binding assurance, the referral of the applicants’ cases to the Iraqi courts and their physical transfer to the custody of the Iraqi authorities failed to take proper account of the United Kingdom’s obligations under Articles 2 and 3 of the Convention and Article 1 of Protocol No. 13 since, throughout the period in question, there were substantial grounds for believing that the applicants would face a real risk of being sentenced to death and executed.

144. The outcome of the applicants’ case before the IHT is currently uncertain. While the applicants remain at real risk of execution since their case has been remitted for reinvestigation, it cannot at the present time be predicted whether or not they will be retried on charges carrying the death penalty, convicted, sentenced to death and executed. Whatever the eventual result, however, it is the case that 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. The Court has held above that causing the applicants psychological suffering of this nature and degree constituted inhuman treatment. It follows that there has been a violation of Article 3 of the Convention.

145. In the circumstances, and in view of the above finding, the Court does not consider it necessary to decide whether there have also been violations of the applicants’ rights under Article 2 of the Convention and Article 1 of Protocol No. 13.

The Court’s judgment is in my view exactly right. But it bears noting how the legal judgment actually depends entirely on an underlying value judgment as to the importance and nature of Article 2 and 3 rights, and the non-refoulement obligation which protects them. It is also interesting to see how the Court attempts to somewhat narrow down its holding, though I think not entirely persuasively. First, para. 137 could be taken as implying some sort of lex prior, that the Convention only ‘prohibits’ the conclusion of contrary agreements which post-date it. This is not necessarily the case. A century-old extradition treaty, for example, could just as easily run afoul of the ECHR, and the result should in my judgment be no different. Second, the Court’s discussion of diplomatic asylum in paras. 139-140 might perhaps suggest that a different approach should be warranted in an embassy case. Again, however, the fact that a state’s conflicting obligations might be clearer does not necessarily make them more important.

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.

The Court then moved to non-refoulement under Article 6, but did not find a violation, holding that no serious risk of a flagrant denial of a fair trial in Iraq was established (paras. 149-50). More interestingly, it then examined the UK’s refusal to obey the interim measures that it had indicated:

162. As stated above, the Court’s approach in interpreting the Convention must be guided by the fact that its object and purpose 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. It has found that the decisions of the United Kingdom authorities to refer the applicants’ cases to the Iraqi courts in December 2005 and to transfer them physically to Iraqi custody on 31 December 2008, without having first received any binding assurance that they would not be subjected to the death penalty, put them at real risk of being executed. It has further found that, as a matter of principle, it was not open to the respondent State to enter into an agreement or arrangement with another State which conflicted with its obligations under Articles 2 and 3 of the Convention and Article 1 of Protocol No. 13. Finally, it has found that the Government have failed to establish that there were no realistic or practicable means available to them by which to safeguard the applicants’ fundamental human rights. In these circumstances, the “objective impediment” claimed by the Government, namely the absence, on 31 December 2008, of any available course of action consistent with respect for Iraqi sovereignty other than the transfer of the applicants, was of the respondent State’s own making.

163. Moreover, the Government have not satisfied the Court that they took all reasonable steps, or indeed any steps, to seek to comply with the Rule 39 indication. They have not informed the Court, for example, of any attempt to explain the situation to the Iraqi authorities and to reach a temporary solution which would have safeguarded the applicants’ rights until the Court had completed its examination.

164. It is true that from June 2008 the Government began to make approaches to the Iraqi authorities, initially to ascertain from the President of the IHT what steps would be effective under Iraqi law and practice to reduce the risk of the applicants receiving the death sentence (see paragraphs 50-54 above). Subsequently, in July 2008 the Government contacted the Iraqi prosecutors and requested them to inform the IHT that the Government were opposed to the death penalty and that neither of the families of the two murdered soldiers wished it to be imposed (see paragraph 86 above). These contacts may or may not have contributed to the IHT’s decisions to amend the charges against the applicants (see paragraphs 86-88 above); this is not a matter on which the Court is able to speculate. However, as the domestic courts also found, the Government’s approaches to the Iraqi authorities prior to the transfer of the applicants on 31 December 2008 were not sufficient to secure any binding assurance that the death penalty would not be applied and the applicants remained at real risk when the United Kingdom decided not to comply with the Court’s indication under Rule 39. The Government’s efforts in 2009 to persuade the Iraqi authorities not to use the death penalty came after the applicants had left United Kingdom jurisdiction and therefore at a time when the United Kingdom authorities had lost any real and certain power to secure their safety. Moreover, to date no binding assurance that the death penalty will not be applied has been given and the applicants’ fate remains uncertain.

165. In conclusion, the Court does not consider that the authorities of the Contracting State took all steps which could reasonably have been taken in order to comply with the interim measure taken by the Court. The failure to comply with the interim measure and the transfer of the applicants out of the United Kingdom’s jurisdiction exposed them to a serious risk of grave and irreparable harm.

166. In the admissibility decision of 30 June 2009 (see paragraph 7 above) the Court joined the question of the admissibility of Article 13 to the merits. Having now examined the merits, and having found in connection with Article 34 that there was no objective justification for the transfer, it reaches the conclusion on similar grounds that the effectiveness of any appeal to the House of Lords was unjustifiably nullified as a result of the Government’s transfer of the applicants to the Iraqi authorities. The Court therefore finds the complaint under Article 13 admissible and it finds violations of Articles 13 and 34 of the Convention.

So far the judgment was unanimous, but here Judge Bratza partially dissented:

The majority of the Chamber have found the Government’s non-compliance with the Rule 39 indication to be unjustified on two principal grounds. It is said that there was no “objective impediment” to compliance with the interim measures since the absence on 31 December 2008 of any available course of action consistent with respect for Iraqi sovereignty other than the transfer of the applicants was of the respondent State’s own making. Secondly, it is said that the Government have not satisfied the Court that they took all reasonable steps, or indeed any steps, to seek to comply with the Rule 39 indication, not having informed the Court of any attempt to explain the situation to the Iraqi authorities or to reach a temporary solution which would have safeguarded the applicants’ rights until the Court had completed its examination.

I am not convinced by either of these points. As to the former, the question whether there was an objective impediment to compliance with an interim measure must be assessed at the time when the measure was applied, in this case 30 December 2008. At that time there existed, as the Court of Appeal found, an objective legal impediment to continuing to detain the applicants and refusing to surrender them to the Iraqi authorities. The fact that, had the United Kingdom obtained the necessary assurances from those authorities some four years before, the applicants could have been safely transferred in December 2008, while undoubtedly relevant in the context of the complaint under Article 3 of the Convention, does not in my view affect the question which falls to be examined under Article 34. As to the latter point, while there are strong reasons to believe that the relevant assurances could have been obtained before the referral of the applicants’ case to the Iraqi courts, the lack of success of the efforts made after June 2008 would clearly suggest that there was no realistic prospect of obtaining such assurances or achieving a temporary solution at a time when the expiry of the Mandate was imminent, a point confirmed by the evidence of Mr Watkins before the Divisional Court and the Court of Appeal (see paragraphs 56 and 66).

For these reasons, while agreeing that in the circumstances of this case the surrender of the applicants violated their rights under Article 3, I would not find it either necessary or appropriate to hold that there had additionally been a violation of Article 34 of the Convention.

With the greatest respect for Judge Bratza, the majority does have it right here. Yes, the UK had a legal obligation to comply with the Iraqi request – but it still had an ECHR obligation to reject it. As the Chamber rightly pointed out, this norm conflict was entirely of the UK’s own making. It was free to choose which obligation to honour, and which it violate. It made its choice, and that choice invariably ran afoul of the Court’s interim measures. It is only if Article 34 was interpreted as creating a justification for non-compliance in cases of potential norm conflict that the result could be otherwise – but I see no reason why Article 34 should be interpreted that way

Finally, as for remedies, the Court ordered the UK government as follows:

171. In the present case, the Court has found that through the actions and inaction of the United Kingdom authorities the applicants have been subjected to mental suffering caused by the fear of execution amounting to inhuman treatment within the meaning of Article 3. While the outcome of the proceedings before the IHT remains uncertain, that suffering continues. For the Court, compliance with their obligations under Article 3 of the Convention requires the Government to seek to put an end to the applicants’ suffering as soon as possible, by taking all possible steps to obtain an assurance from the Iraqi authorities that they will not be subjected to the death penalty.

However, though it did award the applicants costs, it did not award them any damages, ruling that a finding of violation was sufficient just satisfaction. Bearing in mind the magnitude of the violations, this is perhaps not entirely satisfactory – yet this is what the Court frequently does in order to soften the blow somewhat for the government, particularly when the applicants themselves are probably some quite nasty, nasty people.

In sum, this was a judgment well worth the wait. We’ll see now whether the UK will ask for a referral to the Grand Chamber – it probably will. 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. I personally don’t think that the Grand Chamber would rule any differently on the merits, but the extraterritorial application issue may be revisited, for better or for worse (probably worse). Most importantly, the Grand Chamber will be holding hearings in the Al-Skeini and Al-Jedda cases on 9 June this year, and they also raise questions of extraterritorial application and norm conflict. Exciting times ahead in the ‘Al-‘ cases!

Further commentary will follow.