By Tobias Thienel
The High Court in London has recently addressed an issue that has plagued not only the British contingent of Coalition forces in Iraq: to what extent does international human rights law prevent members of the coalition from cooperating with Iraqi authorities? More specifically, can it prevent Coalition forces from surrendering suspects to the appropriate Iraqi autorities for prosecution? Is it relevant that the member of the Coalition may be obliged to do this?
Unsurprisingly, the latter was precisely the question before the High Court in R (Al-Saadoon) v Secretary of State for Defence  EWHC 3098 (Admin). The claimants had been at first detained by British forces for imperative reasons of security, presumably under authority derived from the Security Council (see R (Al-Jedda) v Secretary of State for Defence  UKHL 58,  1 AC 332), but were later suspected of involvement in the murder of two British servicemen. They were therefore – and presumably still are – subject to requests by the Iraqi High Tribunal for their transfer to the custody of the Iraqi police. They complain, however, that they are likely to be sentenced to death and to be executed, and that they are furthermore likely to receive a grossly unfair trial. The claimants therefore maintain that their transfer to the Iraqi police would contravene the UK’s obligations under the ECHR.
The High Court dismissed their claim, though on rather shaky grounds.
Curiously, their Lordships (Richards LJ and Silber J) were quite aware that their reasoning was, to put it mildly, open to serious doubt. Indeed, what the two judges themselves have concluded seems quite convincing; the problem really only lies with earlier authority binding upon the High Court.
The first issue for the two judges in the High Court to resolve was whether the UK could be said to exercise ‘jurisdiction’ over the claimants within the meaning of Article 1 of the ECHR, such that its obligations under the Convention apply. The problem here, according to the submissions for the respondent Secretary of State, was that the UK was under an obligation, deriving from a Memorandum of Understanding between the UK forces in Iraq and the Ministries of Justice and of the Interior of Iraq, to transfer the claimants. Counsel for the Secretary of State therefore argued that, since the request came from an Iraqi court, applying Iraqi law, and since it was binding on the UK, compliance with the request was not even attributable to the UK. Instead, the British Army (etc) in Iraq were said to be acting on behalf of Iraq in transferring the claimants, much like the French and Spanish judges in Drozd and Janousek v France and Spain had been sitting as judges of Andorra, and not in their original capacity as organs of France or Spain. That was, with respect, clearly nonsensical, and the High Court was having none of it. It was patently within the power of the UK (my emphasis) to either transfer its prisoners, or to decline to do so. Accordingly, its ‘jurisdiction’ was very much engaged, just like it is in embassies or consulates (paras 79-82 of Al-Saadoon; see also Al-Jedda, cited above, paras 122, 132, and WM v Denmark).
That problem out of the way, the Court had to address the application of human rights law to the facts of the case. The rule in question was, of course, the one that prevents a party to the ECHR from sending a person to a place beyond its control (not necessarily another State territory, as Al-Saadoon clarifies) if the person in question ran a real risk of harm contrary to Article 3 ECHR (torture or inhuman or degrading treatment) or of a flagrant breach of another human right there.
As regards Article 3, the case of Soering v United Kingdom stands out as the leading case for this particular rule. That case has indeed established, or at any rate popularised, the notion that harm consequent upon an extradition or expulsion could engage the responsibility of the sending State. In addition, Soering has also briefly noted the possibility that such responsibility might arise where the real risk in question was of a grossly unfair trial (a ‘flagrant breach’ of Article 6). Later cases have established that it is also unlawful to extradite where the extraditee is likely to be sentenced to death and executed; any such extradition would violate Article 2 ECHR as well as Article 1 of the Sixth Additional Protocol to the ECHR (the right to life and the prohibition of capital punishment in peacetime, respectively; see Aspichi Dehwari v The Netherlands, para 61; Al-Saadoon, para 145, helpfully extends this interpretation to the Thirteenth Additional Protocol, on the abolition of the death penalty even in times of war).
However, this is where the binding authority of an earlier case in the Court of Appeal came in, to prevent, I would say, the High Court from reaching the right conclusion. First, therefore, a few words about that earlier case: in R (B.) v Secretary of State for Foreign and Commonwealth Affairs  EWCA Civ 1344,  QB 643, the Court of Appeal had to consider a claim under which the British Consulate in Melbourne, Australia, was prevented under the ECHR from returning immigrants from Afghanistan to the custody of the Australian authorities after those people had sought consular asylum. The Court of Appeal delved deep into (customary) international law to find that the UK did not have the right, vis-à-vis Australia, of granting consular asylum, except where those seeking asylum would otherwise become the victims of a crime against humanity. That was patently not the case. The Court of Appeal therefore considered that the application of the Soering principle abroad was conditioned by what general international law allowed a State to do (or rather, in this case, to decline to do); if the UK was not allowed to refuse to surrender the ‘would-be asylum-seekers’, it was under no obligation to do so. The critical paragraph of the judgment was this:
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 Convention can require States to give refuge to fugitives within consular premises if to do so would violate international law. So to hold would be in fundamental conflict with the importance that the Grand Chamber attached in Bankovic to principles of international law. Furthermore, there must be an implication that obligations under a Convention are to be interpreted, insofar as possible, in a manner that accords with international law.
With respect, that is mistaken at several levels. First, the ECHR does not give in to other international law this easily. Instead, other obligations under international law entered into by a State party to the ECHR subsequent to the entry into force of the Convention for that State are subject to review by the European Court (Prince Hans-Adam II of Liechtenstein v Germany, para 47). Moreover, the Court has recently gone out of its way to avoid the conclusion (reached by the House of Lords in Al-Jedda, cited above) that the Convention had been displaced by a binding resolution of the Security Council under Article 103 of the UN Charter (see Behrami and Behrami v France and Saramati v France, Germany and Norway, and on that case M Milanovic and T Papic, ‘As Bad As It Gets: The European Court of Human Rights’ Behrami and Saramati Decision and General International Law’, ICLQ 57 (2008); M Milanovic, ‘Norm Conflict in International Law: Whither Human Rights?’, forthcoming). Secondly, it is wrong to say that the refusal to extradite in Soering-type cases does not involve the ECHR member State in a violation of (other) international law: if the obligation to extradite under the extradition treaty is unconditional (most such treaties now contain a let-out clause for human rights constraints; the treaty in Soering did not), a refusal to extradite will breach that treaty. Of course, the prohibition of torture does rank as jus cogens, but if the duty not to extradite derives from another rule, or the facts of a case satisfy Article 3 ECHR but not the definition of torture as universal jus cogens, nothing saves the ECHR State from a very uncomfortable position: it can choose to either honour the extradition and violate the ECHR, or it can comply with the ECHR and breach the treaty. It would commit a violation of international in any case; its only choice is as to which obligation it would prefer to breach. (See on all of this K Doehring, ‘Vertragskollisionen: Der Fall Soering’, in: Recht, Staat, Gemeinwohl, Festschrift für Dietrich Rauschning (2001), 419-426; O Lagodny, Die Rechtsstellung des Auszuliefernden in der Bundesrepublik Deutschland, 107; M Milanovic, ‘Norm Conflict’, referred to above, as well as a few words of mine in the comments at Opinio Juris here).
Unfortunately, the Court of Appeal precedent was binding on the High Court, and the two judges in Al-Saadoon regarded it as indistinguishable. That is not to say, however, that they were – at all- comfortable with it. Indeed, they did offer some criticism of the decision by which they were bound:
In adopting [its] approach, the [Court of Appeal] relied heavily on the importance attached in Bankovic to principles of international law, but did not explain the precise basis on which the relevant principles of international law displaced the obligations otherwise arising under the Convention. That other international obligations may prevail over the Convention has since been confirmed by the decision of the House of Lords in Al-Jedda, but that was a special case in which the decision turned on an express provision in article 103 of the UN Charter that in the event of a conflict between the obligations of member states under the Charter and their obligations under any other international agreement, their obligations under the Charter were to prevail (…). There was nothing like that in R (B.) v Secretary of State for Foreign and Commonwealth Affairs. And notwithstanding the importance attached in Bankovic 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.
It will appear that I agree entirely with these comments. The High Court here explains that other international law does not, without more, trump the ECHR (far from it), and particularly that ‘harmonious interpretation’ as in Bankovic is a concept far removed from any notion that the ECHR might wish to play second fiddle (it might be added that the ‘harmonious interpretation’ in Bankovic itself was, in the end, anything but harmonious: see M Milanovic, ‘From Compromise to Principle: Clarifying the Notion of State Jurisdiction in International Human Rights Treaties’, HRLR 8 (2008), 411-448). Moreover, the Court even hints that Soering actually did concern a violation of other international law that was not even so much as hinted at by the European Court.
Of course, the Court of Appeal had left open one tiny window: it had said that asylum could be granted if there was a risk of crimes against humanity being committed against those seeking asylum. It was therefore possible that the risk in question might be so immensely odious that the duty not to transfer a person took priority over the right of the other State to take custody of that person. Against that background – but also in order to show how the approach mandated by the Court of Appeal precedent affected the outcome of the case – the High Court went on to consider whether (a) there was a risk of an unfair trial, and (b) there was a risk of the death penalty being imposed and carried out.
On the first point, the Court found that the trial before the Iraqi High Tribunal would not be unfair. Given the strong criticism that has been expressed previously (see e.g. KJ Heller, ‘A Poisoned Chalice: The Substantive and Procedural Defects of the Iraqi High Tribunal’, Case Western Reserve Journal of International Law 39 (2007), 261-304), this may come as a surprise. The High Court did, however, acknowledge several of the Tribunal’s original weaknesses; it only held that those had apparently been fixed.
The High Court further found a real risk that the claimants would be sentenced to death and executed. It was therefore with an openly expressed degree of unease that the judges dismissed the claim for judicial review. They indicated their willingness to grant leave to appeal. It will be interesting to see what the Court of Appeal will make of the case. The Court of Appeal will not, however, be able to simply overrule or depart from its earlier decision; it is bound by its own precedent (Young v Bristol Areoplane Ltd  KB 718). What the Court might conceivably do is declare that while Soering indeed does not apply where customary international law disallows any refusal to return (refoule) a person, the European Convention is not so displaced if the conflicting norm of international law is one of treaty law, i.e. one of the State’s own immediate making. That would, at least, ‘save’ this case, and reflect the subordination of subsequent treaty-making to the constraints of the Convention (Prince Hans-Adam II of Liechtenstein, cited above). That way out would not, however, cure the fundamental defect of R (B.) v Secretary of State for Foreign and Commonwealth Affairs, as pointed out by the High Court in Al-Saadoon.
For now, Al-Saadoon remains an interesting case for the international human rights lawyer, albeit one sadly held back by the English rules of precedent.