ECHR Finds Violation in British Transfer of Detainees to Iraqi Custody

Last Wednesday, the European Court of Human Rights issued its decision in Al-Saadoon & Mufdhi v. the United Kingdom, finding that the U.K. had violated its international human rights obligations when it transferred two Iraqi nationals to Iraqi custody because there was a real risk they would face the death penalty.  See the press release and judgment.

The application was presented on behalf of two former Ba’ath party officials who had been detained by the British military in 2003 at a British-run detention center.  In 2005, the British authorities referred the prosecutions of the two men (for murder and war crimes) to the Iraqi judiciary, which then took over the legal authority for their continued detention.  The applicants remained in physical custody of the British forces until 2008, when they were transferred to Iraqi custody after the U.K. courts denied the their petitions for relief, and in spite of the European Court having issued an interim measure against their transfer.  The European Court held unanimously that the transfer violated article 3 (prohibition on inhuman or degrading treatment) because the men faced possible execution by hanging if convicted.  The Court split 6 to 1 in favor of finding additional violations of articles 13 (effective remedy) and 34 (individual petition) of the European Convention on Human Rights.

See the English Divisional Court’s judgment finding no legal bar to the transfer, but expressing substantial qualms, here, and the Court of Appeal’s decision finding that, although the applicants could face execution, the U.K. did not exercise jurisdiction over them, here.

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