By Tobias Thienel

A few days ago, I noted on this blog a recent case from the English High Court, which addressed the possibility that the British forces in Iraq might be prevented by the ECHR from handing over suspects to the Iraqi authorities for prosecution. The High Court had held at the time that the two claimants could not resist their transfer to the Iraqi High Tribunal, even though they did run a risk of being sentenced to death and executed. However, the Court held so only reluctantly, and only because it was bound by precedent – a precedent, moreover, which the High Court pretty much knew to be wrong.

The claimants’ hopes then rested on the Court of Appeal. But all such hopes were dashed when the Court of Appeal on 30 December 2008 dismissed the appeal. In addition, the Court of Appeal also refused leave to appeal to the House of Lords, and declined to extend the injunction against the appellants’ transfer to the Iraqi police. As Professor William A. Schabas and Dr Antoine Buyse report at their respective blogs, the appellants were then swiftly handed over to the Iraqis – this despite an interim measure indicated by the European Court of Human Rights.

The Court of Appeal today published its reasons for dismissing the appeal: R (Al-Saadoon) v Secretary of State for Defence [2009] EWCA Civ 7. Those reasons were, in broad outline: (a) the UK did not have jurisdiction over the appellants, so the ECHR did not apply, (b) even if it had done, the obligation not to extradite/transfer was displaced by the fact that the UK was bound to do so, (c) there was no (regional) customary international law in Europe against the transfer of persons to a risk of suffering the death penalty, (d) the execution of a sentence of death by hanging did not amount to a crime against humanity.

There’s really only one word for that: Nonsense!

In his leading judgment, with which the other two judges in the Court of Appeal agreed, Lord Justice Laws did not even take the easy way out, by holding simply that the requisite ‘real risk’ of the appellants being sentenced to death had not been made out. In fact, he accepted that there was such a risk.

His main holding was instead that the appellants were not, and had never been, within the jurisdiction of the United Kingdom while they were being detained with a view to being transferred to Iraqi custody. Lord Justice Laws considered Bankovic and Others v Belgium and Others and R (Al-Skeini) v Secretary of State for Defence, coming up with the following conclusions on ‘the scope of Article 1 jurisdiction where it is said to exercised outside the territory of the impugned State party’:

(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.

The first and second of these propositions imply (as perhaps does the term jurisdiction itself) an exercise of sovereign legal authority, not merely de facto power, by one State on the territory of another. That is of itself an exceptional state of affairs, though well recognized in some instances such as that of an embassy. 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; and there would be no principled basis on which the power could be said to be limited, and thus exceptional.

All four of these propositions may be said to be derived from Bankovic, as somewhat amplified by the House of Lords in Al-Skeini. The first two points derive from a passage in which the Grand Chamber suggests that the word ‘jurisdiction’ as used in Article 1 ECHR should be read together with the understanding of the word ‘jurisdiction’ in general international law (where, of course, it describes the lawful competences of States), and that extraterritorial ‘jurisdiction’ is, against that background, the exception rather than the rule. The third proposition (‘regional nature’) goes back to para. 80 of Bankovic, where the Court states that the Convention is an instrument of ‘European public order’, and that the ECHR operates ‘notably in the legal space (espace juridique) of the Contracting States.’ The suggestion, finally, that the ECHR is ‘indivisible‘ goes back to a passage in Bankovic where the Grand Chamber rejects a suggestion that the Convention may be tailored to the individual circumstances of a State’s control over a given territory.

Lord Justice Laws applied these propositions to the case before him, albeit with the proviso that there is ‘no sharp edge’, rather ‘a combination of key ideas which are strategic rather than lexical’ (which sounds like a classic excuse for woolly thinking and arbitrary decision-making). He further explained his conception of Article 1 jurisdiction as follows:

If a State Party is to exercise Article 1 jurisdiction outside its own territory, the regional and indivisible nature of the Convention rights requires the existence of a regime in which that State enjoys legal powers wide enough to allow its vindication, consistently with its obligations under international law, of the panoply of Convention rights – rights which may however, in the territory in question, represent an alien political philosophy. […] The ECHR’s natural setting is the espace juridique of the States Parties; if, exceptionally, its writ is to run elsewhere, this espace juridique must in considerable measure be replicated. In short the State Party must have the legal power to fulfil substantial governmental functions as a sovereign State. It may do so within a narrow scope, as in an embassy, consulate, military base or prison; it may, in order to do so, depend on the host State’s consent or the mandate of the United Nations; but however precisely exemplified, this is the kind of legal power the State must possess: it must enjoy the discretion to decide questions of a kind which ordinarily fall to a State’s executive government. If the Article 1 jurisdiction is held to run in other circumstances, the limiting conditions imposed by the four propositions I have set out will be undermined.

The ostensible requirement that the State should have discretion to act became critical to the judge’s disposition of the case: he held that, from the time the occupation of Iraq had ended (May 2006), the UK had not enjoyed any power detain criminal suspects; from 31 December 2008, the day the Security Council mandate for the Multinational Force ended, the UK had furthermore had no power to do anything, except as provided by the consent of Iraq. Therefore, Lord Justice Laws concluded

that before 31 December 2008 the United Kingdom was not 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. After that date, the British forces enjoyed no legal power to detain any Iraqi. Had they taken such action, the Iraqi authorities would have been entitled to enter the premises occupied by the British and recover any such person so detained. In those circumstances, given my approach to ECHR Article 1 as I have just explained it, it is inevitably my conclusion that the detention of the appellants by the British forces at Basra did not constitute an exercise of Article 1 jurisdiction by the United Kingdom, either before or after 31 December 2008.

I don’t think the Lord Justice accepts here that the British Army was acting not as an organ of the United Kingdom, but as an organ of Iraq, and that the relevants acts are therefore not even attributable to the UK. That argument, based on Drozd and Janousek v France and Spain (French and Spanish judges delegated to serve as Andorran judges), had been addressed to the High Court and rejected there. But Drozd does not reappear in the judgment of the Court of Appeal. Instead, what the higher Court appears to be saying is that, because the authority to detain was Iraq’s alone, the UK did not have ‘lawful discretion’ with regard to the detention and transfer of the appellants. The UK therefore, according to the second-highest court of England, did not exercise jurisdiction over the appellants.

That’s quite wrong. ‘Jurisdiction’ in the sense of Article 1 ECHR need not be a lawful projection of power; it only requires that the State in question hold power in fact. It is completely nonsensical to suggest that something should first of all be lawful vis-à-vis other States (in that the State party to the ECHR has jurisdiction / is internationally competent / has a discretion to act) before such action could ever be unlawful under the Convention. In fact, the reverse is more true: whereas Bankovic‘s invocation of the general international law concept of jurisdiction is murky at best, and was probably only intended to make the point that extraterritorial jurisdiction is not the norm, cases like Öcalan v Turkey and Medvedyev and Others v France teach that the fact that a State may not have ‘jurisdiction’ (in the sense of general international law) to arrest people (abroad or on the High Seas) does not begin to rule out the application of the ECHR under Article 1, but instead constitutes the violation of the Convention, as such an arrest will be unlawful as per Article 5(1) (Öcalan, paras. 93-99; Medvedyev, paras. 53-59). (See M. Milanovic, ‘From Compromise to Principle: Clarifying the Notion of State Jurisdiction in International Human Rights Treaties’, HRLR 8 (2008), 411-448.)

I also have some reservations regarding Lord Justice Laws’ proposition (3), on the ‘regional nature’ of the Convention, or its espace juridique. Taken at its highest, this proposition would entail that the Convention cannot possibly outside Europe. That is how the High Court and the House of Lords have read Bankovic in Al-Skeini, but even then only in relation to ‘jurisdiction’ by reason of control over territory, not also in relation to ‘jurisdiction’ through immediate control over a person in a foreign country. Dr Ralph Wilde has argued that this invocation of the ‘espace juridique‘ was never intended as any sort of limitation of the ECHR’s extraterritorial reach (‘The "Legal Space" or "Espace Juridique" of the European Convention on Human Rights: Is It Relevant to Extraterritorial State Action?, EHRLR 2 (2005), 115-124; ‘Triggering State Obligations Extraterritorially: The Spatial Test in Certain Human Rights Treaties’, Israel Law Review 40 (2007), 503-526), and so has yours truly (‘The ECHR in Iraq’, JICJ 6 (2008), 115-128). But then, Lord Justice Laws seems not to have applied any strict ‘espace juridique‘ limitation; if he had, the case would have been quite simple; events in Iraq could never have qualified.

What the Court of Appeal, through Laws LJ, has said is that ‘effective control’ should be so close to the typical picture of a State’s powers at home as to allow for an application of the full ‘panoply’ of Convention rights. That does not seem quite right. It is plausible that ‘effective control’ should be not unlike a State’s power in its own territory, because that degree of control establishes the subordination of the inhabitants of a territory to the State, such as to call for the application of human rights. The same is not necessarily true where a foreign State exercises so little power as to be comparable not to a local public power, but to some form of armed band. Moreover, it is in the situation of considerable control over a foreign territory that the rationalisation of the extraterritorial effect of the ECHR in Issa and Others v Turkey applies with full force: a State should not be allowed to do abroad what it may not do at home (Issa, para. 71) – and particularly not, one might add, if the facts on the ground abroad are pretty much like they are at home.

But I would doubt that the test of ‘effective control’ has anything to do with any ability to apply the ‘panoply’ of Convention rights. As far as the negative obligations resulting from the Convention are concerned, that much should be obvious: a State can decline to do something no matter where it is. Things are different where a State’s positive obligations are concerned: it is tempting to argue that ‘effective control’ only exists where a State is capable of discharging its obligations to offer protection. ‘Effective control’ would then not exist if a State’s position of power is too weak guarantee, for instance, that private actors do not create present dangers to the lives of others, and kill. But that argument is misleading: a State’s positive obligations under the Convention do not actually require the State to project any given degree of power. Positive obligations require a State to do for the protection of certain rights everything it reasonably can, but not to do specific things, such as establish a given degree of police presence. It is therefore logically impossible to be incapable of discharging a positive obligation of protection. To say that a State can’t meet its positive obligations is to say it can’t do whatever it can do – patently a contradiction in terms.

I would therefore suggest, as the High Court had held, that the appellants were very much under the jurisdiction of the UK. The UK was able to either transfer them to the Iraqis, or to keep them. It therefore had power over the two persons – which is enough.

The Court of Appeal further held, although only as a kind of make-weight argument, that the obligation not to extradite or transfer could only apply if the UK was within its rights under other international law in refusing such transfer. On this point, the Court of Appeal, like the High Court before it, considered itself bound by its own earlier case of R (B.) v Secretary of State for Foreign and Commonwealth Affairs. I have already criticised that case in my post on the High Court’s judgment, so I don’t propose to repeat myself ad nauseam now. Yet a few odd things might be noted about the treatment of the issue in the Court of Appeal:

First, Lord Justice Laws felt able to deal with the point very briefly because, he said, he agreed with the High Court on this point. So, in a sense, he did. But the High Court had only decided the issue in the way that Lord Justice Laws did now because it was bound to do so. Beyond recognising that fact, the High Court addressed some criticism to the case binding upon them, but today’s judgment entirely neglects to mention any part of that.

Second, unlike the High Court, the Court of Appeal cites R (Al-Jedda) v Secretary of State for Defence as a case in which the ECHR played second fiddle to other international law. But as the High Court correctly noted (para. 91 of its judgment), that was only because of the very special rule of Article 103 of the UN Charter. There has been no suggestion in Al-Jedda that the European Convention might, of its own accord, apply only subject to other international law.

Third, the Court of Appeal may well have made a slightly better fist of the question whether R (B.) might not be distinguishable. It’s not that the matter has been addressed at all; it hasn’t. But the High Court’s assumption that R (B.) was binding seemed to overlook that the earlier case had been about a rule of customary law conflicting with the ECHR. On the High Court’s view, however, the present case was about a duty to transfer deriving from a recent treaty engagement coming into conflict with the ECHR. Under the settled law of the European Court, treaties concluded after the entry into force of the ECHR for a State are subject to review under the Convention; no problem might therefore have arisen, at least in the application of the Convention and the Human Rights Act. The treaty demanding the transfer wasn’t part of domestic law anyway. But things look very different under Lord Justice Laws’ solution of the case: according to him, the duty to transfer derives not so much from a treaty as from the basic sovereignty of Iraq, and a lack of power in the UK to keep the appellants. On that view, R (B.) may well have been controlling, wrong though it is.

The third point in the judgment was whether there is any regional customary law in Europe condemning the death penalty. A prohibition on extradition was to follow from that. Here, Lord Justice Laws again declined to agree. He accepted that there was a good deal of evidence that Europe was against the death penalty, but considering the 13th Additional Protocol to the ECHR, he held that this was to be done by means of treaty law, not by a subtle change in customary international law. That overlooks the fact that treaties may well be evidence of customary law. Moreover, it is ironic that treaties intended to outlaw and condemn capital punishment should be interpreted in favour of the practice, namely as ruling out any condemnation apart from the treaty. Also, it’s a little curious that the Lord Justice does not cite Öcalan v Turkey, where a tendency against the death penalty outside the Convention was specifically considered, as changing the content of Articles 2 and 3 ECHR. True, such a change was not in the end confirmed, but nor was it ruled out (Öcalan, paras. 162-165). Also, the tendency in question would seem to have moved on since judgment in Öcalan was delivered.

Counsel for Messrs Al-Saadoon and Mufdhi did not tell the Court of Appeal, but there is also a good body of practice supporting a rule against extraditions in capital cases: see s. 94 of the Extradition Act 2003 (UK); s. 19 of the Extradition Act, 1965 (Ireland); § 8 of the Act on International Cooperation in Criminal Matters (Germany); § 20 of the Act on Extraditions and Judicial Assistance (Austria); Fidan, Recueil Dalloz-Sirey (1987), 305, 309-310 (Conseil d’Etat, France); Venezia v. Ministero di Grazia e Giustizia (Corte di Cassazione, Italy), digested in A. Bianchi, ‘International Decisions: Venezia v. Ministero di Grazia e Giustizia‘, AJIL 91 (1997), 727 et seq.; A. Clarke, ‘Terrorism, Extradition and the Death Penalty’, William Mitchell Law Review 29 (2002-2003), 783, 797-798; W.A. Schabas, ‘Indirect Abolition: Capital Punishment’s Role in Extradition Law and Practice’, Loyola of Los Angeles International and Comparative Law Review 25 (2002-2003), 581, 590-591; id., The Abolition of the Death Penalty in International Law (Cambridge: CUP, 2nd ed., 1997), 238.

It is therefore entirely credible that the customary rule contended for by the appellants may indeed have come into existence.

On the last question, whether an execution by hanging may amount  to a crime against humanity, it is the Court of Appeal’s judgment that is more credible. The answer was that a risk of truly horrible, inhuman suffering had not been made out; that may be a matter of some debate. However, it is clear that, no matter if the practice amounts to torture, it will not be ‘part of a widespread or systematic attack on a civilian population’, as the concept of crimes against humanity (Article 7(1) of the ICC Statute) requires. Indeed, I find it somewhat difficult to see why the Court of Appeal in R (B.) held that a risk of a ‘crime against humanity’, no less, was required before a State could grant someone consular asylum (applied here as an exception from the subordination of the ECHR prohibition on extradition/transfer to other international law).

I concluded on the High Court’s judgment by saying that it was interesting, but sadly held back by the English rules of precedent. The Court of Appeal, on the other hand, is itself going to hold back English human rights law, unless the European Court of Human Rights clearly and firmly knocks the case on the head (when it does, the Court of Appeal will no longer be bound by its own precedent: R (RJM) v Secretary of State for Work and Pensions, para. 66).

That, of course, is reasonably likely to happen. But it won’t help very much, now that the appellants have been handed over to the Iraqi High Tribunal.

That, in turn, was an obvious violation of Article 34 ECHR (the obligation not to hinder in any way the effective exercise of the right of individual application to the European Court), and more specifically the duty to comply with the European Court’s – binding – provisional measures (Mamatkulov and Askarov v Turkey, para. 129; see also this recent post on the ECHR Blog).

Moreover, I would not be in the least bit surprised if the refusal by the Court of Appeal to extend the injunction against the appellants’ transfer was also held to be in violation of the Convention. It could, in particular, amount to a violation of Article 13 (the right to an effective remedy) on account of the fact that the appellants could not effectively petition the House of Lords for leave to appeal, and of Article 34, on the grounds that the Court’s refusal, coupled with the declared readiness of the respondent Secretary of State to immediately hand over the appellants, hindered and rendered meaningless their application to the Strasbourg court.

But whatever happens, this case hardly stands as a shining example of Britain’s respect for human rights, or for the Convention system.