Al-Saadoon and Mufdhi v United Kingdom (Application No. 61498/08)

Guy S. Goodwin-Gill was a member of the legal team representing two Iraqi citizens in challenges to their detention by British forces in Iraq and their subsequent transfer to the Iraqi authorities to stand trial for alleged war crimes.
 
In Al-Saadoon and Mufdhi v United Kingdom (Application No. 61498/08), the Fourth Section in Strasbourg held, first, that, ‘given the total and exclusive de facto, and subsequently also de jure control’ exercised by the UK, the individuals were at all times within UK jurisdiction for the purposes of Article 1 of the European Convention (decision on admissibility, 30 June 2009). With regard to the merits, the applicants argued that the crimes of which they were accused were punishable with sentences which included the death penalty, and that their transfer to the Iraqi authorities violated European Convention Articles 2 (right to life), 3 (freedom from torture or inhuman or degrading treatment or punishment), 6 (right to fair trial), 13 (right to effective remedy), and 34 (individual applications). The Government claimed that, at the date of transfer, there were no substantial grounds to believe that the applicants would face the death penalty if convicted and that the UK in any event had no choice but to respect Iraqi sovereignty and transfer the applicants as requested by the Iraqi High Tribunal. In its judgment on the merits of 2 March 2010, the Court found that the UK had done nothing to ensure that the applicants’ Convention rights would be guaranteed once they were transferred, and that by failing to obtain effective assurances from the Iraqi authorities regarding non-application of the death penalty, the UK had violated Articles 2 and 3 of the Convention. Moreover, so far as it had also failed to comply with the Court’s earlier interim measures order, the UK had violated Articles 13 and 34 of the Convention. For proceedings in the Divisional Court and the Court of Appeal, see R (Al-Saadoon and another) v Secretary of State for Defence [2008] EWHC 3098 (Divisional Court); [2009] 3 WLR 957, [2009] EWCA Civ 7 (Court of Appeal).