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I. BETWEEN THE DEVIL AND THE DEEP BLUE SEA: CONFLICTED THINKING IN THE AL-SAADOON AFFAIR

Published online by Cambridge University Press:  14 July 2009

Matthew E Cross
Affiliation:
Independent legal researcher and barrister (non-practising); email: matthew.e.cross@gmail.com.
Sarah Williams
Affiliation:
Dorset Fellow in Public International Law, British Institute of International and Comparative Law; email: s.williams@biicl.org.

Abstract

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Type
Current Developments: Public International Law
Copyright
Copyright © 2009 British Institute of International and Comparative Law

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References

1 R (Al-Saadoon and Mufdhi) v Secretary of State for Defence [2009] EWCA Civ 7 (‘Appellate judgment’); R (Al-Saadoon and Mufdhi) v Secretary of State for Defence [2008] EWHC 3098 (‘Divisional Court judgment’).

2 eg Letter dated 30 December 2008 from Fatos Araci, Deputy Section Registrar, European Court of Human Rights, to Mr. P Shiner, Public Interest Lawyers.

3 L May, ‘Pair Accused of Murder Handed Over to Iraqi Authorities’ The Independent (31 December 2008).

4 Letter dated 31 December 2008 from Derek Walton, Agent of the Government of the United Kingdom to Mr. TL Early, Section Registrar, European Court of Human Rights, cited in letter dated 13 January 2009 from Andrew Dismore, MP, Chair of the Joint Committee on Human Rights, to the Rt Hon John Hutton MP, Secretary of State for Defence.

5 Some dispute remains as to whether the facility was US-run: Divisional Court judgment, para 25.

6 Memorandum of Understanding, s 1, as reproduced in Divisional Court judgment, para 20.

7 Memorandum of Understanding, s 2(1), as reproduced in Divisional Court judgment, para 20.

8 Law of the Iraqi Higher Criminal Court (Law No 10 of 2005), as reproduced at http://law.case.edu/saddamtrial/documents/IST_statute_official_english.pdf, Articles 1(2), 13.

9 Resolution 1790 (2007), UN Security Council, para 1. See also Resolutions 1723 (2006), 1637 (2005), and 1546 (2004), especially para 10. The Divisional Court noted that an annex to Resolution 1790 includes a letter from the Iraqi Prime Minister ‘which inter alia refers to the importance for Iraq of being treated as an independent and fully sovereign state, and identifies as a relevant objective that “the Government of Iraq will be responsible for arrest, detention and imprisonment tasks” and that when those tasks are carried out by the MNF ‘there will be maximum levels of coordination, cooperation and understanding with the Government of Iraq’.' Divisional Court judgment, para 21.

10 See further R (Al-Saadoon and Mufdhi) v Secretary of State for Defence [2008] EWCA Civ 1528, para 6.

11 This latter point was dismissed in five brief paragraphs on the basis that ‘the statements of policy do not go as far as the claimants need them to go in order to succeed on this issue.’ Although the argument was clearly collateral to the main thrust of the case, it is a pity that this point did not receive further elaboration. Considering the ‘exceptional’ nature of the instant case, it is hard to envisage how the policy statements could have gone much further. Divisional Court judgment, paras 198–202.

12 Appellate judgment, para 14.

13 ibid, para 40.

14 R (Al-Skeini) v Secretary of State for Defence [2008] 1 AC 153, [2007] UKHL 26. See McGoldrick, (2007) ‘Human Rights and Humanitarian Law in the UK Courts’ Israel Law Review (2007) 40(2) 527–562.

15 ibid para 108.

16 Banković v Belgium (2001) 11 BHRC 435.

17 R (Al-Jedda) v Secretary of State for Defence [2008] 1 AC 332, [2007] UKHL 58. The Secretary of State in this case conceded that, for the purposes of jurisdiction, the claimants fell within the principle in Al-Skeini.

18 Divisional Court judgment, para 59. Indeed, the Court observed, ‘[i]f anything, the facilities in which the claimants [were] detained appear[ed] to have a greater degree of permanence than those in which Mr. Mousa was held’.

19 Al-Skeini (n 14) para 132.

20 Divisional Court judgment, para 62. In Al-Skeini, Iraq was in a state of occupation at the material time and so did not have the capacity to assert its jurisdiction; in Al-Jedda, the claimants had been interned solely as a matter of British policy under the authority of Resolution 1546.

21 ibid paras 63–66.

22 ibid para 69.

23 Appellate judgment, para 29.

24 Munaf v Geren, slip opinion, 553 US___ (2008) 17–21, 28.

25 In another decision, handed down on the same day, the US Supreme Court narrowly upheld an approach to extraterritoriality governed by ‘objective factors and practical concerns, rather than formalism’, even though the test approved (‘complete jurisdiction and control’) is somewhat higher than Banković. Boumediene v Bush, slip opinion, 553 US ___ (2008) 25, 34, 38–39. See also Rasul v Bush, 542 US 466 (2004) per Justice Kennedy (487); and generally Jenkins, ‘Habeas corpus and extraterritorial jurisdiction after Boumediene: towards a doctrine of ‘effective control’ in the United States' Human Rights Law Review, forthcoming. Advance Access published 11 May 2009: doi 10.1093/hrlr/ngp001.

26 Divisional Court judgment, para 73.

27 ibid, para 79.

28 Munaf (n 24) 15, citing inter alia Francis v Henderson, 425 U.S. 536, 539 (1976); Fay v Noia, 372 U.S. 391, 438 (1963); Ex parte Royall, 117 US 241, 251 (1886).

29 Divisional Court judgment, para 79.

30 ibid para 82.

31 See further Appellate judgment, paras 49–50.

32 ibid paras 24–27.

33 ibid paras 32–33; see also para 40.

34 Al-Jedda (n 17) para 62.

35 Resolution 1546 (n 9) para 10.

36 ibid at Annex.

38 Both decisions are silent as to the status of the MoU. Although it is assumed for the present purposes that it is a non-binding agreement, and thus of evidential value only, a finding otherwise would not be fatal. On the range of instruments which might be described as MoUs, see Aust, Modern Treaty Law and Practice, (2nd edn, CUP, Cambridge, 2007) 32–57.

39 General Comment No 31: Nature of the General Legal Obligation Imposed on State Parties to the [ICCPR] (Human Rights Committee, 26 May 2004) para 10.

40 Behrami and Behrami v France, Application No 71412/01, 2 May 2007, not yet published. See Droege, , ‘Transfers of detainees: legal framework, non-refoulement and contemporary challenges’ (2008) 90 (871) International Review of the Red Cross 669, 686CrossRefGoogle Scholar; Milanovic, and Papic, , ‘As Bad as it Gets: The European Court of Human Rights's Behrami and Saramati Decision and General International Law’ (2009) 58 ICLQ 267CrossRefGoogle Scholar.

41 Divisional Court judgment, para 82.

42 Appellate judgment, para 37, emphasis supplied.

44 ibid para 39.

45 Soering v UK 11 EHRR 439, para 91.

46 Divisional Court judgment, para 46, citing R (Ullah) v Special Ajudicator [2004] 2 AC 323, para 24.

47 Brown v Government of Rwanda and the Secretary of State for the Home Department [2009] EWHC 770 (Admin). For an exceptional Article 8 application see EM (Lebanon) v Secretary of State for the Home Department [2008] UKHL 64.

48 Divisional Court judgment, paras 85–88.

49 R (B) v Secretary of State for Foreign and Commonwealth Affairs [2005] QB 643.

50 eg Divisional Court judgment, para 92.

51 Appellate judgment, paras 45–47.

52 B (n 49) paras 84, 88–89.

53 Divisional Court judgment, para 90.

54 ibid, para 91.

55 ibid para 92.

56 Appellate judgment, para 48.

57 Divisional Court judgment, para 93.

58 ibid para 94.

59 See eg Behrami (n 40) para 122.

60 Divisional Court judgment, paras 96, 166–167, 176, 185, 191–194, 196–197. On the role of diplomatic assurances, see also Droege (n 40) 694; Arbour, , ‘In Our Name and On Our Behalf’ [2006] 55(3) ICLQ 511, 521–522Google Scholar.

61 Divisional Court judgment, paras 96, 109, 115, 130, 137, 140–141, 196. It should be noted that the Soering test in respect of a risk of Article 6 violations is somewhat higher than that for Article 3: para 100, citing to EM (Lebanon) v Secretary of State for the Home Department (n 47) paras 3, 34–35, 45, 53–57; Othman (Jordan) v Secretary of State for the Home Department [2008] EWCA Civ 290, paras 15–19. See also Appellate judgment, paras 16, 53, 55.

62 Divisional Court judgment, paras 148, 158–159. See also Appellate judgment, para 22.

63 Divisional Court judgment, paras 160–162. See further General Comment No 6: the Right to Life (Human Rights Committee, 1982) paras 6–7. Although the Divisional Court considered the fairness question to have been resolved (n 61), compare In the matter of sentencing Taha Yassin Ramadan, Application for Leave to Intervene as Amicus Curiae and Application in Intervention as Amicus Curiae of United Nations High Commissioner for Human Rights, Iraqi High Tribunal, 8 February 2007, on file with the authors.

64 Divisional Court judgment, para 163.

65 Appellate judgment, paras 57–71. Of general interest, note para 59 for a brief consideration of the extent to which a rule of customary law might be considered a cause of action in English courts.

66 Compare Al-Jedda (n 17) per Baroness Hale, para 126.

67 Leave to appeal to the House of Lords was refused: Appellate judgment, para 1.

68 The ECtHR has indicated to the UK that it is likely to render a decision in this case, answering an application which claims violations of the claimants' rights under Articles 2, 3, 6, 13 and 34 of the ECHR.

69 Cruz Varas v Sweden (1991) 14 EHRR 1, paras 92, 97–103.

70 Mamatkulov and Askarov v Turkey 2005-I, 41 EHRR 494 GC, para 102.

71 ibid, paras 111–117. For the position at the ICJ, see LaGrand Case (Germany v United States of America [2001] ICJ Rep 466, paras 102–110. For the position at the Human Rights Committee, see General Comment No 33: the Obligations of States Parties under the Optional Protocol to the [ICCPR], Advance Unedited Version, 5 November 2008, para 19; Sholam Weiss v Austria, 15 May 2003, Communication No 1086/2002, para 11.1; Dante Piandiong, Jesus Morallos and Archie Bulan v the Philippines, 19 October 2000, Communication No 869/1999, paras 5.1–5.4; Glen Ashby v Trinidad and Tobago, 26 July 1994, Communication No. 580/1994, paras 10.8–10.10. For the position under the American Convention on Human Rights, see James et al v Trinidad and Tobago, Order of 3 April 2009, unpublished, 5–7; Hilaire et al v Trinidad & Tobago, Judgment, 21 June 2002, Inter-American Court of Human Rights (Series C) No 94 (2002), paras 26–33, 190–200; Juan Raul Garza v United States, Decision on the Merits, 4 April 2001, Inter-American Commission on Human Rights, Case No 12.243, Report No 52/01, para 117.

72 Mamatkulov (n 70) paras 125, 128.

73 Harris, O'Boyle and Warbrick: Law of the European Convention on Human Rights (2nd edn, OUP, 2009) 844, fn 159.

74 Shamayev v Georgia and Russia 2005–III, paras 473, 478–479.

75 Olaechea Cahuas v Spain 2006–X, paras 67, 71.

76 Mamatkulov (n 70) para 108.

77 Harris et al (n 73) 843.

78 Aoulmi v France 2006–I, 46 EHRR 1, para 111.

79 Olaechea Cahuas (n 75) para 81.

80 See, eg Request for Interpretation of the Judgment of 31 March 2004 in the Case Concerning Avena and Other Mexican Nationals (Mexico v United States of America), Judgment (not yet published), 19 January 2009, paras 50–53, 61 (2). Whereas earlier failures to comply may have mitigated by confused circumstances and short notice, such an argument could not be made on this occasion. Addo, ‘Vienna Convention on Consular Relations (Paraguay v United States of America) (‘Breard’) and LaGrand (Germany v United States of America), Applications for Provisional Measures' [1999] 48(3) International and Comparative Law Quarterly 673, 679.

81 (n 68).

82 Milanović, , ‘Norm Conflict in International Law: Whither Human Rights?’ (2009) 20 Duke Journal of Comparative and International Law 1, forthcomingGoogle Scholar. Advance copy (available at http://ssrn.com/abstract=1372423) 75.

83 ibid, 6.

84 ibid, 7–9.

85 See, eg Divisional Court judgment, para 87.

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