On 31 December 2008 British forces transferred two Iraqi citizens, Faisal Attiyah Nassar Al-Saadoon and Khalaf Hussain Mufdhi (the claimants), to the jurisdiction of the Iraqi High Tribunal (IHT). The decision to transfer was taken following the finding by both the Divisional Court and the Court of Appeal that the proposed transfer would be lawful, dismissing the claimants' claim for judicial review.Footnote 1 In transferring the claimants, the United Kingdom violated a provisional measures order issued by the European Court of Human Rights (the ECtHR).Footnote 2 The Secretary of State for Defence characterized United Kingdom compliance with such orders ‘normally [as] a matter of course’ but cited ‘exceptional circumstances’ in the present case: ‘[w]e cannot comply with requests to act in a manner which the […] Court of Appeal has held to be a breach of our international legal obligations.’Footnote 3 Given the expiry of the United Nations mandate for the Multi-National Force (MNF) in Iraq, the United Kingdom Government considered itself to have ‘no lawful option other than transfer to the Iraqi authorities’.Footnote 4
A. Background
The claimants were initially interned by British forces on 30 April and 21 November 2003 on grounds of security. Both had been senior members of the Ba'ath party in the district of Al-Zubair and were believed to have been concerned in the orchestration of violence against the MNF in occupation. Held briefly in a detention facility of uncertain administration,Footnote 5 they were transferred to the British-run Divisional Temporary Detention Facility on 15 December 2003. On 20 April 2007, they were transferred to the British-run Divisional Internment Facility at Basra International Airport, where they remained until their transfer to Iraqi authorities.
An investigation carried out by the Special Investigations Branch of the Royal Military Police had implicated the claimants in the murder of two captured British servicemen. Accordingly, on 12 April 2006 a British officer laid a complaint before the special investigative panel of the Basra Criminal Court and on 18 May 2006 the claimants were produced to give evidence in response. They denied the allegations. The panel issued warrants for their arrest pursuant to the Iraqi Penal Code, and ordered their continued detention by the British contingent of the MNF. Henceforth, the claimants were classified for administrative purposes as criminal detainees rather than security internees. A Memorandum of Understanding had been concluded between the United Kingdom Government and the Iraqi Government on 8 November 2004, setting out ‘the authorities and responsibilities in relation to criminal suspects’.Footnote 6 It made clear that the Iraqi government ‘has legal authority over all criminal suspects who have been ordered to stand trial and who are awaiting trial in the physical custody of [the UK contingent of the MNF]’.Footnote 7
The Basra criminal court subsequently decided that the case fell within the jurisdiction of the IHTFootnote 8 and on 27 December 2007 the IHT requested the claimants' transfer into its custody. The United Kingdom Government declined to grant this request until such time as the English courts had considered the claimants' application for judicial review—but noted that its undertaking could not extend beyond 31 December 2008, at such time as Resolution 1790Footnote 9 expired and the independent mandate of the MNF in Iraq came to an end.Footnote 10
At the High Court, and then the Court of Appeal, the claimants argued that they were within the jurisdiction of the United Kingdom for the purposes of the European Convention on Human Rights (ECHR); that transfer to the IHT would violate their rights under the Convention (due to substantial grounds for belief in a real risk of a flagrantly unfair trial, the use of the death penalty, and exposure to torture, inhuman or degrading treatment); that their transfer would breach customary international law on non-refoulement; and that the transfer would violate a legitimate expectation not to be exposed to the risk of the death penalty.Footnote 11
B. The Devil: a Qualified Approach to Soering in English law?
The Divisional Court dismissed the claimants' application, finding that, although they were within the jurisdiction of the United Kingdom for the purposes of the ECHR, ‘the United Kingdom was obliged under international law to transfer [them] into the custody of the Iraqi court; and that compliance with this obligation could not be said to involve a violation of ECHR rights.’Footnote 12 The Court of Appeal upheld this conclusion in principle but in any event chose to dismiss the claim as outside of the jurisdiction of the United Kingdom.Footnote 13 Quite apart from the broader conflict between the interpretations of the law emanating from the United Kingdom and Strasbourg, the decisions are thus of note on their own merits for the gloss they put on the English law of extraterritorial jurisdiction, and their adherence to a purported ‘qualification’ to the rule in Soering.
1. Jurisdiction
On the jurisdictional point, the Divisional Court correctly acknowledged Al-Skeini Footnote 14 as the controlling decision for the purposes of English law, incorporating Lord Brown's injunction to adhere closely to the ‘watershed authority’Footnote 15 of Banković v Belgium.Footnote 16 It accepted that, prima facie, the physical position of the claimants was identical to that of Mr Mousa in Al-Skeini as well as the claimants in Al-Jedda.Footnote 17 At all material times, they were detained in facilities under the control of British forces in Iraq.Footnote 18 As such, it reasoned, the jurisdiction of the United Kingdom might be established ‘by analogy with the extraterritorial exception made for embassies’.Footnote 19
Somewhat unhelpfully, the Court folded preliminary consideration of any obligation the United Kingdom may have owed Iraq into its reasoning on jurisdiction. The Court had found it appropriate ‘to look deeper’, distinguishing Al-Skeini and Al-Jedda on the basis that in neither case was another State making any sort of ‘active’ claim for jurisdiction.Footnote 20 The claimants, on the other hand, were acknowledged to have been ‘subject to the jurisdiction and legal authority of the Iraqi courts since no later than 18 May 2006’. As a result, and clearly sensitive to the prima facie nature of a sovereign State's jurisdiction over its own nationals in its own territory, the Court described British forces as ‘physical custodian[s]’ of the claimants on behalf of Iraq.Footnote 21 In effect, the claimants were held purely ‘on trust’—and thus the United Kingdom was under some sort of international obligation to transfer them on request. The Court struggled to articulate the nature of this obligation. Although it cited B (see below), it could not formulate anything more than a general obligation of non-interference in the sovereign affairs of a foreign state by analogy to diplomatic law.Footnote 22 It took greater comfortFootnote 23 from the decision of the United States Supreme Court in Munaf v Geren,Footnote 24 which found that detainees held by the US MNF contingent were within federal habeas jurisdictionFootnote 25 but that the habeas right did not mandate their release in order to ‘rescue’ them from surrender to Iraqi authorities for trial.Footnote 26 Although the Divisional Court did note that the jurisdictional context was ‘very different’,Footnote 27 it is worth emphasising that habeas corpus, under US law, is ‘governed by equitable principles’ and therefore that various concerns—including comity—may ‘require a federal court to forego the exercise of its habeas corpus power’.Footnote 28 This is a very different approach to the regime applicable under English law, where it is by no means clearly established that the court enjoys any sort of discretion in permitting the transfer of an individual within UK jurisdiction in certain circumstances.
Nevertheless, the Divisional Court then proceeded to uphold UK jurisdiction over the claimants, rejecting the contention that Iraq's assertion of jurisdiction ipso facto robbed the UK of it:
[The Secretary of State's] submissions on attribution and responsibility, in putting their entire focus on the jurisdiction and legal authority of the Iraqi courts over the claimants, suggest that the British forces have no autonomous role in the matter of the claimants' detention or transfer into the custody of the IHR. But plainly they do. They are lawfully present in Iraq as a contingent of the MNF pursuant to a UN mandate, subject to the exclusive jurisdiction of the United Kingdom and independent of the Iraqi state … The British forces have physical custody and control of the claimants. They have it in their power to refuse to transfer the claimants to the custody of the IHT or indeed to release them, even though to act in such ways would be in breach of the United Kingdom's obligations under international law. Thus the transfer of the claimants into the custody of the IHT would in our view be an action properly attributable in law to the United Kingdom … Footnote 29
In summarizing its finding on jurisdiction, the Court added ‘[t]he very real differences in legal context, important though they are, are not sufficient in the final analysis to distinguish the position of the claimants from that of Mr. Mousa in Al-Skeini and of the claimant in Al-Jedda with regard to article 1 jurisdiction. The analogy with the extra-territorial exception for embassies and the like still holds good.’Footnote 30 As such, although the decision is hardly straightforward in this respect, it upheld the practical focus of Al-Skeini, and confined the question of the UK's obligations under international law to the substance of the case rather than the foundational matter of jurisdiction.Footnote 31
Unfortunately, despite adopting a similar recital of the controlling law,Footnote 32 the Court of Appeal departed from the Divisional Court in its application. It is worth setting out the key part of its reasoning in full. The Court's reasoning in respect of UK jurisdiction (or the lack thereof) after 31 December 2008 is more or less common ground, and not of great concern:
Until 31 December 2008 the United Kingdom forces at Basra enjoyed the guarantees of immunity and inviolability provided by CPA Order No. 17 (Revised). But those measures prohibited invasive sanctions; they did not confer executive power. In my judgment, from at least May 2006 until 31 December 2008, the British forces at Basra were not entitled to carry out any activities on Iraq's territory in relation to criminal detainees save as consented to by Iraq, or otherwise authorized by a binding resolution or resolutions of the Security Council. So much flows from the fact of Iraq's sovereignty, and is not contradicted—quite the reverse—by any of the United Nations measures in the case. Thus the MNF mandate was extended by the Security Council at Iraq's express request. The letter requesting its extension (which was attached to Resolution 1790 (2007)) expressly stated at paragraph 4, ‘[t]he Government of Iraq will be responsible for arrest, detention and imprisonment tasks’. The various material Security Council Resolutions (1483 (2000), 1546 (2004) and 1790 (2007)) all emphasise the primacy of Iraqi sovereignty. As regards criminal detentions, CPA Memorandum No. 3 (Revised) makes it plain that so far as criminal detainees may be held by any national contingent of the MNF, they are held, in effect, to the order of the Iraqi authorities.
In these circumstances, the United Kingdom was not before 31 December 2008 exercising any power or jurisdiction in relation to the appellants other than as agent for the Iraqi court. It was not exercising, or purporting to exercise, any autonomous power of its own as a sovereign State.Footnote 33
This passage is striking, not least for the disregard it shows to the Secretary of State's concession in Al-Jedda. In the period from 2003 to 18 May 2006 (when the claimants were classified as security internees), the UK Government has accepted that it was exercising jurisdiction over the class of individual within which they fell. Notwithstanding the absence of such a caveat in the latter paragraph above, the brief reference to ‘May 2006’ in the former might be taken to reflect this view. The apposite question, therefore, explores what the contours of the UK's jurisdiction were in fact. Lord Rodgers observed that:
[I]f there were ever any question as to the exact interplay between the rights and duties of the British forces as the forces of an occupying power and as members of the MNF under Resolution 1511, those questions no longer arose after the end of June 2004. From that point onwards, the legal position of the members of the MNF … was governed by Resolution 1546.Footnote 34
The relevant part of Resolution 1546 authorises the MNF:
… to take all necessary measures to contribute to the maintenance of security and stability in Iraq in accordance with the letters annexed to this resolution.. so that, inter alia, the United Nations can fulfil its role in assisting the Iraqi people as outlined in paragraph seven above and the Iraqi people can implement freely and without intimidation the timetable and programme for the political process and benefit from reconstruction and rehabilitation activities.Footnote 35
In the appended letter from the Prime Minister of Iraq, the MNF mandate is framed by reference to ‘maintaining security in Iraq, including through the tasks and arrangements set out in the letter from Secretary of State Colin Powell to the President of the United Nations Security Council.’Footnote 36 The US Secretary of State's letter details the following:
Under the agreed arrangement, the MNF stands ready to continue to undertake a broad range of tasks to contribute to the maintenance of security and to ensure force protection. These include activities necessary to counter ongoing security threats posed by forces seeking to influence Iraq's political future through violence. This will include combat operations against members of these groups, internment where this is necessary for imperative reasons of security, and the continued search for and securing of weapons that threaten Iraq's security …
In order to continue to contribute to security, the MNF must continue to function under a framework that affords the force and its personnel the status that they need to accomplish their mission, and in which the contributing states have responsibility for exercising jurisdiction over their personnel and which will ensure arrangements for, and use of assets by, the MNF. The existing framework governing these matters is sufficient for these purposes.Footnote 37
The basis for the UK's independent exercise of jurisdiction over security internees (under the umbrella of the MNF) is thus immediately apparent. It should be noted, however, that the list of discrete functions within the ‘maintenance of security’ and force protection mandate is illustrative, not exhaustive. Certainly, there is no express wording to exclude criminal detention from the MNF's remit. CPA Memorandum No 3 (Revised), which was issued some weeks after the passage of the Resolution, makes clear in fact that the MNF does ‘have the right to apprehend persons who are suspected of having committed criminal acts and are not considered security internees’ provided that they are ‘handed over to Iraqi authorities as soon as reasonably practicable’. Detainees may have been retained in MNF custody ‘at the request of the appropriate Iraqi authorities based on security or capacity considerations’. (Neither the Court of Appeal nor the Divisional Court quite addressed the question as to whether, even if UK jurisdiction ceased at such point as it ‘handed over’ criminal detainees to Iraqi authorities, jurisdiction was not regained when the Iraqi authorities requested their continued custody by the MNF.) Certainly, the Court of Appeal failed to consider the insight offered by the MoU. Notwithstanding the absolute connotation of CPA Memorandum No 3 (Revised), section 3(4) of the MoU clearly contemplates that the UK can exercise independent jurisdiction in Basra, within limited circumstances.Footnote 38 It provides:
4. In relation to any criminal suspect transferred to the [Iraqi government] by UK MNF-I from its detention facilities, the [Iraqi government] will:
(a) inform UK MNF-I before releasing any individual and will comply with any request by UK MNF-I that UK MNF-I should reassume custody if,
(i) the individual is wanted for prosecution by any state that has contributed forces to the MNF for breaches of the laws and customs of war, or
(ii) the internment of the individual is necessary for imperative reasons of security,
in which case UK MNF-I will assume custody of that individual after consultation between [the UK and Iraq] to reach an agreed solution.
This provision both recognizes the independent jurisdiction and mandate of British forces with respect to the maintenance of security (section 3(4)(a)(ii)) and illustrates that the UK could exercise a residual criminal jurisdiction over the claimants. It does not seem correct to say that the UK enjoyed no sovereign status of its own while operating as part of the MNF. However, to assume arguendo that the Court of Appeal was right, did the lack of formalism matter anyway? The Human Rights Committee has independently endorsed an approach to extraterritorial application of the ICCPR based on effective control; it continued to note that the principle applied ‘regardless of the circumstances in which such power or effective control was obtained’ and expressly illustrated its point by reference to troops operating under a foreign mandate.Footnote 39 Such a principle has not yet been endorsed in Strasbourg jurisprudence, but is not necessarily inconsistent with the (somewhat strained) decision in Behrami.Footnote 40
Taken all in all, even adopting a narrow reading of the meaning of the Court of Appeal's finding, the circumstances do not seem clearly to reflect the UK's role as a mere ‘agent’ of the Iraqi Government. Moreover, as the Divisional Court noted,Footnote 41 a finding that the UK in fact had no jurisdiction over the claimants at the material time would also serve to exclude any hypothetical claim for ill-treatment in custody—a retrograde step which is not remedied by the potential availability of other disciplinary or criminal means of recourse. For these reasons, and despite its imperfections, the conclusion reached by the Divisional Court is to be preferred.
The occasion should also be seized to consider whether the Court of Appeal's decision offered a nuanced reading of Al-Skeini. Summarizing four core propositions of the rule on extraterritoriality (bearing in mind that, as a concept which is ‘strategic rather than lexical’, it has ‘no sharp edge’), Laws LJ recalled that:
(1) It is an exceptional jurisdiction.
(2) It is to be ascertained in harmony with other applicable norms of international law.
(3) It reflects the regional nature of the Convention rights.
(4) It reflects the indivisible nature of the Convention rights.Footnote 42
The first two propositions were further interpreted to conclude that jurisdiction for the purposes of the ECHR must be ‘an exercise of sovereign legal authority, not merely de facto power … The power must be given by law, since if it were given only by chance or strength its exercise would by no means be harmonious with material norms of international law, but offensive to them’.Footnote 43 This assertion merits a degree of caution, at least in the understanding of the circumstances envisaged by the phrase ‘given by law’. It should not—as the US Supreme Court noted (albeit in a different context) in Boumediene—be read to apply a formalistic requirement: extraterritorial jurisdiction does not depend upon the formal grant of a lease, the passage of a binding Resolution, or the conclusion of a treaty (although all these instruments may be of great evidential value). Rather, the term might better be understood as signifying the idea that extraterritorial jurisdiction must draw on the legal functions of the State to which it attaches—to the extent, as the Court put it, that the espace juridique of the ECHR ‘must in considerable measure be replicated’, albeit ‘in a narrow scope’.Footnote 44 None of this reasoning compelled the Court's finding that the UK did not possess jurisdiction over the claimants, and thus required it to disturb the conclusion reached by the Divisional Court.
2. The case of ‘B’ and the higher test for extraterritorial application of Soering
In short, Soering establishes the potential liability of an ECHR State party where it takes action ‘which has as a direct consequence the exposure of an individual to proscribed ill-treatment.’ The ill-treatment need not be a certainty: it is only necessary to establish ‘substantial grounds’ for ‘believing that the person concerned … faces a real risk’.Footnote 45 The Soering principle is expressly confined to torture or ill-treatment under Article 3 ECHR, but may be of broader application.Footnote 46 Recently, the Divisional Court applied for the first time a similar protection in the context of Article 6.Footnote 47
The potential application of Soering outside UK territory was accepted by the Divisional Court.Footnote 48 However, both the Divisional Court and the Court of Appeal were significantly influenced by the latter's decision in B,Footnote 49 an authority which re-frames extraterritorial Soering protection significantly. Indeed, even though counsel for the claimants argued (perhaps with some forceFootnote 50) that B is wrongly decided, the Court of Appeal recalled that in ‘civil’ matters (such as this) it remains fettered by stare decisis and can do no other.Footnote 51
B concerned an attempt by children who had sought asylum in Australia (and been detained by the Australian authorities in somewhat dubious circumstances) then to claim asylum in the British consulate in Melbourne, where they presented themselves. Although they ultimately returned to Australian custody voluntarily (under more or less veiled threat of ‘removal’ from the consulate), they subsequently sought judicial review of the decision not to permit them to remain, thus exposing them to the risk of treatment prohibited by the ECHR. On reaching the Court of Appeal, it was held that:
In a case such as Soering the contracting state commits no breach of international law by permitting an individual to remain within its territorial jurisdiction rather than removing him to another state. The same is not necessarily true where a state permits an individual to remain within the shelter of consular premises rather than requiring him to leave. It does not seem to us that the [ECHR] can require states to give refuge to fugitives within consular premises if to do so would violate international law … [T]here must be an implication that obligations under a Convention are to be interpreted, so far as possible, in a manner that accords with international law …
We have concluded that, if the Soering approach is to be applied to diplomatic asylum, the duty to provide refuge can only arise under the Convention where this is compatible with public international law. Where a fugitive is facing the risk of death or injury as the result of lawless disorder, no breach of international law will be occasioned by affording him refuge. Where, however, the receiving state requests that the fugitive be handed over the situation is very different. The basic principle is that the authorities of the receiving state can require surrender of a fugitive in respect of whom they wish to exercise the authority that arises from territorial jurisdiction: see article 55 of the 1963 Vienna Convention on Consular Relations. Where such a request is made the Convention cannot normally require the diplomatic authorities of the sending state to permit the fugitive to remain within the diplomatic premises in defiance of the receiving state. Should it be clear, however, that the receiving state intends to subject the fugitive to treatment so harsh as to constitute a crime against humanity, international law must surely permit the officials of the sending state to do all that is reasonably possible, including allowing the fugitive to rake refuge in the diplomatic premises, in order to protect him against such treatment. In such circumstances, the Convention may well impose a duty on a contracting state to afford diplomatic asylum.
It may be that there is a lesser level of threatened harm that will justify the assertion of an entitlement under international law to grant diplomatic asylum. This is an area where the law is ill-defined … We do not consider that the United Kingdom officials could be required by the Convention and by the Human Rights Act 1998 to decline to hand over the applicants unless this was clearly necessary in order to protect them from the immediate likelihood of experiencing serious injury.Footnote 52
This reasoning raises two difficult issues. First, it seems to suggest that the Soering protection under the ECHR may be qualified by other obligations under international law; and second, it apparently advocates a higher test (‘treatment so harsh as to constitute a crime against humanity’) for any exception. These issues shall be considered in turn.
The extent to which B can be considered to lay down a principle of general application is uncertain. The Court of Appeal and Divisional Court clearly anticipated that it could—despite being ‘based upon very limited (and old) authority’ and situated in a discrete legal context of considerable controversy (diplomatic asylum) ‘where the law is ill-defined.’Footnote 53 The Divisional Court acknowledged that B does not explain ‘the precise basis on which the relevant principles of international law displaced the obligations otherwise arising under the Convention’—although Al-Jedda does demonstrate that such obligations can do so, it is rightly considered as ‘a special case’ on the basis of the express aspiration to supremacy over other obligations in the relevant provision (Article 103 of the UN Charter). Most importantly, the Court recognized the potential circularity of argument that B may introduce:
[N]otwithstanding the importance attached in Banković to achieving, so far as possible, conformity between the Convention and other principles of international law, we think that the Strasbourg court would be very slow to allow the protection conferred by the Convention to be displaced by other international law obligations of contracting states. Soering itself was an extradition case, but there was no suggestion that obligations arising under the relevant extradition treaty might qualify the application of article 3.Footnote 54
Unfortunately, the Divisional Court was neither inclined nor felt able to depart from B. Again, it struggled to justify its conclusion as to the obligation owed to Iraq by the UK on anything other than a loose ‘trust’ analysis.Footnote 55 The Court of Appeal's analysis was hardly more compelling.Footnote 56 Neither decision confronted the question as to how this norm conflict might be properly addressed. Instead, both concluded that Soering did not protect the claimants, unless it could be shown that they fell within the higher standard of B.
The Divisional Court noted, rightly, that the source of the test in B is not apparent, nor even is it clear whether it represents one test (equivalence to a crime against humanity) or two (equivalence to a crime against humanity or clear necessity to protect individuals from the immediate likelihood of serious injury).Footnote 57 Given that a crime against humanity requires, inter alia, proof that the particular crime was committed in the context of a widespread or systematic attack upon a civilian population, it is hard to appreciate quite what standard of treatment inflicted upon an individual alone could meaningfully be considered to be analogous. Despite the strain this places on the Court of Appeal's words, it is better to read B as imposing a single tripartite standard—appreciation of 1) a clear necessity to prevent 2) the immediate likelihood of 3) serious injury—and treat the reference to a crime against humanity as a rhetorical flourish. This is clearly higher than the Soering test, which can be similarly rendered into tripartite form to require appreciation of 1) substantial grounds to believe in 2) a real risk that an individual might receive 3) prohibited treatment as a direct consequence of the transfer.
From an abundance of caution, the Divisional Court ostensibly applied ‘both’ tests expressly referred to in B as well as considering ‘whether the claimants would be exposed to treatment contrary to internationally accepted norms’. Most unfortunately, it added:
If the treatment to which the claimants would be exposed would provide a justification in international law for declining to transfer them into the custody of the Iraqi court, then in our view the international law obligations of the United Kingdom fall away and the Convention can be relied on in the normal way to resist the transfer.Footnote 58
The implication that the UK's obligations under the ECHR are in some way ‘outside’ international law is troubling, and contrary to Strasbourg jurisprudence.Footnote 59 By cordoning the ECHR off from the general corpus of international law, the Court created an artificial circularity which largely frustrated the exercise upon which it purported to embark. Somewhat defensively, it noted that in its opinion the claimants would have failed in respect of their arguments on torture or ill-treatmentFootnote 60 and the right to a fair trialFootnote 61 under both Soering and B. This did not prove to be the case, however, with regard to the risk of execution.
On the issue of capital punishment, the Divisional Court accepted that there are substantial grounds for believing in a real risk of the claimants' execution, meeting the Soering test.Footnote 62 It did not consider that the statements made by various Iraqi officials amounted to an effective assurance that the death penalty would not in fact be handed down. However, it continued to observe that capital punishment per se is not yet unlawful under general international law, provided that it is only imposed for ‘the most serious’ crimes in the context of a trial which meets international standards of fairness.Footnote 63 As such, it considered that the risk of the claimants' execution does not suffice under B to relieve the United Kingdom of its obligation to transfer them to Iraq,Footnote 64 presumably on the theory that execution does not amount to ‘serious injury’ for the purposes of international law. The Court of Appeal similarly dismissed arguments based on customary law that execution by hanging is unlawful.Footnote 65
The result of this reasoning, although open to criticism in a number of respects, is clear: the application of Soering is significantly qualified—one might even say displaced altogetherFootnote 66—in extraterritorial cases. This will remain the position in UK law at least until such time as the matter is raised at the House of Lords (which will not occur in the instant caseFootnote 67) or considered at Strasbourg.Footnote 68
C. The Deep Blue Sea: a Binding Obligation Not to Transfer
Outside the courtroom, matters were further complicated for the UK Government by the issue of an ECtHR interim measures order in respect of the claimants, requiring that any transfer to Iraq was suspended.
Rule 39 of the ECtHR's Rules of Court provides that:
(1) The Chamber, or where appropriate, its President may, at the request of a party or of any other person concerned, or of its own motion, indicate to the parties any interim measure which it considers should be adopted in the interests of the parties or of the proper conduct of the proceedings before it.
Although the text of the ECHR does not expressly recognize a right to interim measures,Footnote 69 the Grand Chamber of the ECtHR has made clear that the violation of a Rule 39 indication may entail a State's legal responsibility under Article 34 (the right of individual petition).Footnote 70 Taking account of ‘the other principles of international law of which [the ECHR] forms a part’,Footnote 71 the Court concluded:
Likewise, under the Convention system, interim measures, as they have consistently been applied in practice […], play a vital role in avoiding irreversible situations that would prevent the Court from properly examining the application and, where appropriate, securing to the applicant the practical and effective benefit of the Convention rights asserted. Accordingly, in these conditions a failure by a respondent State to comply with interim measures will undermine the effectiveness of the right of individual application guaranteed by Article 34 …
The Court reiterates that by virtue of Article 34 of the Convention Contracting States undertake to refrain from any act or omission that may hinder the effective exercise of an individual applicant's right of application. A failure by a Contracting State to comply with interim measures is to be regarded as preventing the Court from effectively examining the applicant's complaint and as hindering the effective exercise of his or her right and, accordingly, as a violation of Article 34.Footnote 72
Failure to comply with an interim measures order is unusual but not unprecedented.Footnote 73 The ECtHR ruled that the Article 34 obligation had been violated in Mamatkulov, as well as in Shamayev (where it noted that its own capacity to overcome certain hindrances did not rescue a state from its wrongful act).Footnote 74
Failure to comply does not automatically result in the finding of a violation, but instead triggers the ECtHR's inquiry as to whether the respondent State also failed to honour its commitment not to hinder the applicant's right of petition.Footnote 75 The permanent removal of an individual from circumstances where they may effectively instruct their representatives in pursuing their case may be an especially relevant consideration.Footnote 76 That said, in cases concerning expulsion/extradition, the test is frequently met on the basis of the non-compliance alone.Footnote 77 In a recent decision in this context, the ECtHR described interim measures as ‘binding’ for the first time.Footnote 78 Perhaps relevant to the instant case, the ECtHR noted in Olaechea Cahuas that an applicant may be hindered in their right of petition by non-compliance with an interim measure, even though the risk to which the measure was originally addressed did not come to pass.Footnote 79
The issue of the ECtHR order crystallized the legal dilemma in which the UK found itself on the afternoon of 31 December 2008. Domestic courts clearly indicated that its legal obligation lay in one direction; Strasbourg clearly indicated that its legal obligation lay in another, plainly incompatible, direction. Somewhat ironically, had either the Divisional Court or Court of Appeal opportunity to consider it, the interim measure order might even have met the test of B—the binding nature of interim relief is at least arguable as a matter of general international law,Footnote 80 and thus might have been sufficient to resist the UK's obligation to Iraq. Certainly, at such time as the ECtHR passes a judgment in this case,Footnote 81 the UK should be prepared to be found in violation at least of its Article 34 obligation.
D. Comment: Unavoidable and Irreconcilable Norm Conflicts
Quite apart from the vagaries of the reasoning on specific points, the al-Saadoon affair as a whole might be characterized by the idea of ‘norm conflict’. Milanović recalls Soering as an example of an unavoidable and irreconcilable norm conflict,Footnote 82 describing a scenario where meeting one obligation necessarily entails the breach of an equal but distinct other obligation:Footnote 83 the State must breach either its obligation to transfer the individual or its obligation to protect that individual from the consequences of transfer. Conflicts of this type are particularly hard to resolve in the context of international law, lacking as it does ‘the key method for resolving genuine norm conflicts … a centralised system with a developed hierarchy, and at that a hierarchy based on the sources of norms.’Footnote 84 Arguably, the great ambiguity surrounding the reasoning underlying the application of B to the present case emanated from judicial reluctance to confront the possibility that the UK was under two equal but opposite obligations, and thus to step into the realm of policy-making by making a choice between the two. Attempts to force a resolution of the norm conflict—by using the test derived from B to establish a quasi-hierarchy of norms, with ‘general’ international law norms superior to those of the ECHR—were both unconvincing and, ultimately, futile. The UK has been ‘outed’ in having to make a choice between one obligation and the other, between expediencyFootnote 85 and principle.
