By Tobias Thienel

First off, my sincere apologies for being a bad blogger of late. But now, on to the day’s business:

The European Court of Human Rights today delivered its decision on the admissibility of Al-Saadoon and Mufdhi v United Kingdom. That case, of course, represents the continuation at Strasbourg of domestic proceedings; some readers may recall that I have previously discussed the English judgments and the actions of the UK Government in that case on this blog: see here (on the case in the High Court), here (on the Court of Appeal judgment) and here (on the case in general).

The case was – and, in a way, still is – about the transfer of two Iraqi men suspected of murder, who were originally held by the British Army in Iraq and were then due to be – and have now been – transferred to the Iraqis for trial. The two men originally challenged their upcoming transfer under the ECHR, arguing that they would, if transferred, be ill-treated in prison, sentenced to death and executed.

Much to my dismay, the English courts had held that the European Convention did not apply, because the UK was bound in (other) international law to hand over the two men to the Iraqis. The issue, then, is whether a conflict between the ECHR and other international law rules out the application of the Convention. The English courts, by somewhat different routes, held that it did. Marko Milanovic argued that it did not; so did I.

The European Court has now knocked the theory from the English judgments on the head. A good thing, too. The application of the two men – who, unfortunately, have by now been transferred, in violation of an interim measure from the Court – has been declared admissible (at least for the most part; a complaint about expected ill-treatment in prison is inadmissible for failure to exhaust domestic remedies).

HT: Marko Milanovic at EJIL:Talk, who offers a somewhat fuller – and excellent – discussion of the case.

To be sure, at this admissibility stage, the Court only decided as a preliminary question whether the applicants had been within the UK’s ‘jurisdiction’ within the meaning of Article 1 of the ECHR. That leaves for another day the question whether a conflict of norms in international affects the standards of the Convention – as opposed to its application in principle. But at least the higher of the two English courts, the Court of Appeal, had held that there was no such ‘jurisdiction’. That holding now stands disapproved.

The European Court, I think, addressed this particular point only in a rather short – but clearly well-considered – passage in its conclusion on the ‘jurisdiction’ point (para 89):

In the Court’s view, the applicants remained within the United Kingdom’s jurisdiction until their physical transfer to the custody of the Iraqi authorities on 31 December 2008. The questions whether the United Kingdom was under a legal obligation to transfer the applicants to Iraqi custody and whether, if there was such an obligation, it modified or displaced any obligation owed to the applicants under the Convention, are not material to the preliminary issue of jurisdiction (see, mutatis mutandis, Bosphorus, cited above, § 138) and must instead be considered in relation to the merits of the applicants’ complaints. (emphasis mine)

The Court is commendably clear in this passage, replying to the Government’s argument, and to the Court of Appeal, that conflicting norms cannot negate jurisdiction. They may, if the Convention allows for any wiggle-space, be taken into account on the merits, but in principle, the Convention controls regardless of any external conflicting law.

Unfortunately, the Court is somewhat less clear in other respects. The applicants, Marko and yours truly have argued basically that the Convention controls whenever a State party exercises factual power. The trouble with that opinion – which I very much continue to hold – is that Bankovic and Others v Belgium and Others has made some different noises. Bankovic tried to tie in the notion of ‘jurisdiction’ in Article 1 of the ECHR with the concept of jurisdiction in general international law – it failed, as Marko has cogently argued.

Still, the Chamber in Al-Saadoon was hardly free to disregard Bankovic, for better or worse the leading case on Article 1. The Chamber wrote:

85. In keeping with the essentially territorial notion of jurisdiction, the Court has accepted only in exceptional cases that acts of the Contracting States performed, or producing effects, outside their territories can constitute an exercise of jurisdiction by them within the meaning of Article 1 of the Convention (Bankoviæ, § 67). One example was the Drozd and Janousek case, cited above, where the Court accepted (§ 91) that the responsibility of Contracting Parties could, in principle, be engaged because of acts of their authorities, such as judges, which produced effects or were performed outside their own territory (and see also Loizidou (preliminary objections), cited above, § 62; Bankoviæ, cited above, § 69). The Court has also held that when, as a consequence of lawful or unlawful military action, a Contracting State exercises effective control of an area outside its national territory, there may be an obligation under Article 1 to secure the Convention rights and freedoms within that area (Loizidou (preliminary objections, cited above, § 62; Bankoviæ, cited above, § 70). There are, additionally, other recognised instances of the extra-territorial exercise of jurisdiction by a State such as cases involving the activities of its diplomatic or consular agents abroad and on board craft and vessels registered in, or flying the flag of, that State. In these specific situations, customary international law and treaty provisions have recognised the extra-territorial exercise of jurisdiction by the relevant State (see Bankoviæ, cited above, § 73; and see also X v. Federal Republic of Germany, no. 1611/62, Commission decision of 25 September 1965, Yearbook of the European Convention on Human Rights, vol. 8, pp. 158 and 169; X v. the United Kingdom, no. 7547/76, Commission decision of 15 December 1977; WM v. Denmark, no. 17392/90, Commission decision of 14 October 1993).

86. The Court recalls that the applicants were arrested by British armed forces in southern Iraq; the first applicant, on 30 April 2003 and the second applicant, on 21 November 2003. On 15 December 2003 the applicants were transferred from a United States detention facility to one run by the United Kingdom authorities (see paragraph 25 above). The applicants remained in one or another British detention facility until their transfer to the custody of the Iraqi authorities on 30 December 2008 (see paragraph 57 above). They were initially held as “security internees” but were reclassified by the British authorities on 21 May 2006 as “criminal detainees”, following the issue of an arrest warrant and detention order by the Basra Criminal Court on 18 May 2006 (see paragraphs 26-28 above).

87. During the first months of the applicants’ detention, the United Kingdom was an occupying power in Iraq. The two British-run detention facilities in which the applicants were held were established on Iraqi territory through the exercise of military force. The United Kingdom exercised control and authority over the individuals detained in them initially solely as a result of the use or threat of military force. Subsequently, the United Kingdom’s de facto control over these premises was reflected in law. In particular, on 24 June 2004, CPA Order No. 17 (Revised) (see paragraph 13 above) provided that all premises currently used by the MNF should be inviolable and subject to the exclusive control and authority of the MNF. This provision remained in force until midnight on 31 December 2008 (see paragraphs 20-21 above).

88. The Court considers that, given the total and exclusive de facto, and subsequently also de jure, control exercised by the United Kingdom authorities over the premises in question, the individuals detained there, including the applicants, were within the United Kingdom’s jurisdiction (see Hess v. the United Kingdom, no. 6231/73, Commission decision of 28 May 1975, Decisions & Reports vol. 2, p. 72). This conclusion is, moreover, consistent with the dicta of the House of Lords in Al-Skeini and the position adopted by the Government in that case before the Court of Appeal and House of Lords (see paragraph 62 above).

89. In the Court’s view, the applicants remained within the United Kingdom’s jurisdiction until their physical transfer to the custody of the Iraqi authorities on 31 December 2008.

(Emphasis mine)

The Chamber was not really at liberty to simply say that ‘jurisdiction equals control’; Bankovic‘s reference to international law counsels against that. That, presumably, is why the Chamber referred to customary international law allowing for certain cases of extraterritorial jurisdiction (as per Bankovic). On the view that I would prefer, such legality is beside the point: certainly, if a State may exercise jurisdiction (by general IL), the conclusion rather suggests itself that it does; conversely, where a State must not act, it usually does not act. But those are facts, not the law of the Convention. In that sense, I would not quarrel (much) with Bankovic‘s assertion that ‘jurisdiction’ is an ‘essentially territorial notion’, except I would regard that not as a proposition of law, more one of statistics.

Even though it may not have been wise for the Chamber in Al-Saadoon to accept as much, I think the judges have come rather close. They recount in para 87 that the UK’s control over the applicants at first was only de facto (forgetting the powers of a belligerent occupier, but never mind…). It then points out that this power subsequently became one in law. But at para 88, it seems to consider de facto and de jure control not as cumulatively making ‘jurisdiction’, but to regard each as a form of ‘jurisdiction’ in its own right. The Chamber therefore clarifies, if not nearly expressly, that Loizidou‘s formula of jurisdiction by dint of ‘lawful or unlawful military action’ does not quite square with Bankovic‘s insistence that ‘jurisdiction’ is a legal concept.

Mind you, Al-Saadoon is hardly the first case to carry such implications. Öcalan v Turkey (admittedly one of my favourites) springs to mind. That case, like some others, was about an abduction by the agents of a State party to the ECHR from the territory of another State. Even though that State (Kenya) was held to have consented, it is jolly difficult to identify the exercise of power by Turkish agents in Kenya over the appellant as any recognised form of ‘jurisdiction’ in the sense of general international law. This is even more difficult in the abduction cases in which consent by the territorial (or equivalent) State was not found (cf Medvedyev and Others v France, paras 50, 58-9).

Interestingly, the strange idea that the Convention can only apply in Europe, anyway, finds next to no place in today’s decision. That must be right. Also, Medvedyev and Öcalan again show that this limitation – if such it was, quid non – could only ever apply to ‘jurisdiction’ by reason of control over territory, not to ‘jurisdiction’ by reason of immediate control over persons.

Anyway, I am relieved to see that the odd English theory of Article 1 ‘jurisdiction’ not only as a legal concept of some kind, but as requiring lawful power, has been demolished at Strasbourg. That, of course, is what the European Court is there for.

[By the way, as a matter of English law, it appears that the Court of Appeal will now no longer be bound by its own precedent: see R (RJM) v Secretary of State for Work and Pensions, para. 66.]