EHRM, 02-03-2010, nr. 61498/08

Five days later, on 17 June 2008, Abda Sharif (Legal Adviser at the British Embassy in Baghdad) met with the President of the Iraqi Higher Tribunal, President Aref, to reiterate the United Kingdom's strong opposition to the death penalty. During this discussion, President Aref invited letters from the victims' families and from the British Embassy in Baghdad opposing the imposition of the death penalty in this case, as that would be a factor which would be taken account by the court. President Aref also indicated that it would be helpful if the British Embassy waived its right to civil compensation.

On 29 June 2008 the Second Secretary Human Rights Officer at the British Embassy in Baghdad, Mr Gordon Ross, met with President Aref to further discuss the situation and what would be the effect if only one of the families of the two victims were to write to seek clemency. The President indicated that if only one of the two families sought clemency, the letter from one family would be taken into account by the court and the fact that the other family had not done so would not significantly affect matters.

The Government were able to contact one of the families of the two victims. That family agreed to support a plea for clemency and the non-imposition of the death penalty in the event that the applicants were convicted of a capital offence.

The British Embassy in Baghdad also wrote seeking the non-imposition of the death penalty. It also waived any right to civil compensation.

Abda Sharif held a further meeting with President Aref on 18 August 2008, and presented him with the letter from the British Embassy, outlining the United Kingdom's opposition to the imposition to the death penalty, signed by United Kingdom Ambassador, Christopher Prentice, and waiving the right to compensation. This was accompanied by a letter dated 6 August 2008 from one of the families seeking clemency, with an Arabic translation.

The hearing before the Divisional Court took place on 18–20 November 2008. Claims by the applicants concerning the legality of their detention by United Kingdom forces were adjourned.

At the hearing, the court expressed its concerns about what would happen to the applicants after the expiry of the UN Mandate on 31 December 2008. The Government put before the court evidence about the inter-governmental negotiations between the United Kingdom and Iraq that were then continuing as to whether and pursuant to what terms United Kingdom forces would be permitted to remain in Iraq post-31 December 2008. This included the following statement of Mr Watkins, one of the leaders of the United Kingdom's negotiating team:

Judgment was delivered on 19 December 2008. The Divisional Court noted that the applicants had been subject to the jurisdiction and legal authority of the Iraqi courts since no later than 18 May 2006 (see paragraph 46 above). CPA Memorandum No. 3 (Revised) (see paragraph 20 above), which was the Iraqi law in force at the time, required the British forces to hand over ‘criminal detainees’ to the Iraqi authorities as soon as practicable. This requirement was also reflected in the United Kingdom-Iraqi MoU of 8 November 2004 (see paragraph 25 above). Nonetheless, the Divisional Court rejected the Government's argument that the actions of the United Kingdom in respect of the applicants were attributable to the Iraqi authorities: the British forces were lawfully present in Iraq, pursuant to a UN mandate, as part of the MNF subject to the exclusive jurisdiction of the United Kingdom and independent of the Iraqi State. The British forces had physical custody and control of the applicants and had it in their power to refuse to transfer them to the custody of the IHT, even if to act in such a way would be contrary to the United Kingdom's international law obligations. The applicants therefore fell within United Kingdom's jurisdiction for the purposes of Article 1 of the Convention and the Human Rights Act.

The Divisional Court then considered whether the applicants could rely on the principle against refoulement in Soering v. the United Kingdom, (judgment of 7 July 1989, Series A no. 161). It rejected the Government's argument that the Soering principle could apply only to transfers across territorial boundaries, but it considered itself bound by the Court of Appeal's judgment in R(B) v Secretary of State for Foreign and Commonwealth Affairs ([2004] EWCA Civ 1344: see paragraph 94 below), which held that where a fugitive was within the jurisdiction of the United Kingdom but on the territory of another sovereign State (for example, within an embassy or consulate), the United Kingdom was under an international law obligation to surrender him unless there was clear evidence that the receiving State intended to subject him to treatment so harsh as to constitute a crime against humanity.

The Divisional Court considered expert evidence relating to the fairness of proceedings before the IHT. It found no cogent evidence to support the applicants' claims that detainees held by the Iraqi authorities were subjected to torture to extract confessions and that evidence obtained by torture would be used against them. It found that although, during the two first trials before the IHT in which Saddam Hussein was one of the defendants (the Dujayl and Anfal trials), there had been a number of fatal attacks on IHT staff and defence lawyers, the situation had improved and no lawyers, witnesses or IHT staff members had been kidnapped or killed in 2008. It did not, therefore, consider that IHT staff and counsel would be so concerned about their safety as to prevent the applicants from having a fair trial and it found that adequate security measures were taken to protect witnesses. There had been no permanent replacements of judges in current trials and there was not a sufficient risk of replacement of the judiciary to operate as a factor prejudicing the possibility of the applicants' receiving a fair trial. The court noted examples of concerns expressed by third parties relating to the independence of the IHT, but observed that these related to events during the Dujayl and Anfal trials in early 2007, with no more recent examples of such concerns. Taking everything together, it was satisfied that the IHT was sufficiently independent to meet the requirements of a fair trial. There was no real risk of defence counsel being prevented from doing a proper job for the applicants in the event of a trial. The IHT statute and its rules had been modelled after the International Criminal Tribunals for Yugoslavia and Rwanda and the International Criminal Court. The protection afforded to defendants included the presumption of innocence; the right to be informed of charges; the right to defence counsel; the right to be tried without undue delay; the right to be present during trial; the right to examine or confront witnesses; the privilege against self-incrimination; the right not to have silence taken into account in determining guilt; the right of disclosure of exculpatory evidence and witness statements; the exclusion of coerced evidence; the right to ensure that interrogations are videotaped; the right to pose questions directly to the witness; and the right to appellate review. The Divisional Court concluded with regard to the risk of a breach of Article 6:

Next, the Divisional Court considered the evidence relating to the likelihood that the applicants would be subjected to the death penalty. It concluded:

However, the court found that although the death penalty was prohibited by the Convention, it was not yet contrary to internationally accepted norms, at least where it was imposed for serious crimes following conviction at a trial that met minimum standards of fairness. It followed that ‘however repugnant the death penalty may be within our domestic legal system and under the Convention, its imposition would not be contrary to international law’ and the risk that the applicants might be executed did not therefore operate to relieve the United Kingdom of its public international law obligation to transfer them to the custody of the IHT.

The Divisional Court next examined the issues under Article 3 of the Convention. It found that the IHT had requested that, prior to trial, the applicants should be detained in Compound 4 of Rusafa Prison, which was run by the Iraqi Ministry of Justice; if the applicants were convicted and sentenced to over ten years' of imprisonment, they would be sent to Fort Suse Prison, also run by the Ministry of Justice. The court referred to a report by the Provost Marshall, the British Army officer responsible for conducting inspections of United Kingdom overseas military detention facilities, who had inspected Rusafa Prison in April 2008 and found that Compound 4 ‘satisfied the requirements [of the Fourth Geneva Convention]’ in respect of the applicants, providing ‘relative segregation, protection from elements and reasonable living conditions’. Although the Provost Marshall's inspectors had received complaints from some detainees about the lack of visits and the quality of the food, no-one had complained of mistreatment. The Divisional Court also referred to an inspection report by the United States International Criminal Investigative Training Assistance Programme on Compounds 1–6A at Rusafa, which found no indication that detainees were subjected to intentional or overt acts of mistreatment. Conditions at Compound 4 were found to comply with basic human rights standards; detainees were allowed regular visits from legal representatives and relatives; force was used only as a last resort when necessary to prevent prisoners from harming themselves or others; corporal punishment was forbidden and the prisoners interviewed stated that they had never known it to be used; and there was a robust system for the reporting of any mistreatment. In addition, the court had reference to the fact that, in accordance with paragraph 4(c) of section 3 of the MoU of 8 November 2004 (see paragraph 25 above), the Iraqi authorities had provided an assurance that, following transfer to Iraqi facilities, the applicants would be treated humanely. Although the applicants had adduced expert evidence concerning the conditions at Rusafa, this evidence did not establish any instances of actual mistreatment of prisoners. The evidence relating to Fort Suse Prison did not indicate that, if detained there, the applicants would be at risk of ill-treatment. The court therefore concluded that the evidence fell well short of establishing substantial grounds for believing that the applicants would face a real risk of treatment contrary to Article 3 if transferred into the custody of the IHT.

The Divisional Court concluded that the proposed transfer would be lawful and it dismissed the claim for judicial review, but added:

The Divisional Court granted the applicants leave to appeal to the Court of Appeal and, on 19 December 2008, granted an interim injunction prohibiting their transfer until 4 p.m. on 22 December 2008 to allow an application for interim relief to be made to the Court of Appeal.

The applicants appealed against the Divisional Court's judgment, principally on the grounds that

On 22 December 2008 the Court of Appeal directed that the full appeal hearing would take place on 29–30 December 2008. It made an injunction prohibiting the applicants' transfer before 4.30 p.m. on 30 December 2008.

Among the evidence placed before the Court of Appeal was a further statement by Mr Watkins concerning the on-going negotiations with Iraq. He explained, inter alia, that the question of United Kingdom forces being permitted to exercise detention powers in Iraq had been expressly rejected by Iraq in the course of the negotiations:

The Court of Appeal dismissed the appeal at 2.30 p.m. on 30 December 2009, with the following short oral reasons:

The Court of Appeal also refused to grant the applicants interim relief pending either an application to the House of Lords for permission to appeal and for interim relief, or to this Court for interim measures. Shortly after 3 p.m. the Court of Appeal lifted the injunction which had prevented the applicants' transfer until 4.30 p.m. on the same day.

The Court of Appeal handed down its full written judgment on 21 January 2009 ([2009] EWCA Civ 7). It found, first, that there were substantial grounds for believing that the applicants would face a real risk of execution if they were transferred to the custody of the IHT, for the following reasons:

In support of its conclusion that the applicants did not fall within the United Kingdom's jurisdiction for the purposes of the Convention and the Human Rights Act the Court of Appeal observed as follows:

The Court of Appeal also considered the question of conflicting international law obligations, which arose only if it was wrong about the lack of jurisdiction, and held that the Divisional Court had been correct in having regard to the United Kingdom's obligation under international law to transfer the applicants to the custody of the IHT:

The Court of Appeal rejected the applicants' argument based on Őcalan v. Turkey [GC], no. 46221/99, ECHR 2005-IV, that where the proposed refoulement was to a State where after the trial the applicant might suffer the death penalty, no flagrant breach of the right to a fair trial under Article 6 of the Convention needed to be shown, only a real risk of an unfair trial. The court observed that Őcalan was not a refoulement case and that in Bader and Kanbor v. Sweden, no. 13284/04, ECHR 2005-XI, the Court had held that it was necessary in a deportation or extradition case for the applicant to establish a risk of suffering a flagrant denial of a fair trial in the receiving State, the outcome of which was or is likely to be the death penalty, before the Court could find a violation of Article 2 or 3 of the Convention. The Court of Appeal accepted the Divisional Court's assessment of the evidence about the fairness of proceedings before the IHT and therefore also dismissed the complaint under Article 6.

Finally, the Court of Appeal rejected the applicants' argument under international law that execution by hanging fell to be regarded as a crime against humanity, inhuman or degrading treatment or a form of torture. While terrible errors occurred from time to time, where for example the hanged man's neck was not broken so that he suffocated, or the drop was too long so that he was decapitated, such evidence was anecdotal and partial. There was other evidence, such as that considered by the Royal Commission on Capital Punishment, in its Report of 1949–1953, which found that hanging was ‘speedy and certain’. The court concluded that, since the evidence before it regarding this method of execution was very limited, it was in no position to arrive at any overall finding as to the effects of hanging for the purpose of making an assessment of its compatibility or otherwise with norms of customary international law.

The applicants' lawyers contacted the Judicial Office of the House of Lords between 19 and 22 December 2008 but were advised that the Judicial Office would be closed over the Christmas and New Year period and would not reopen until 12 January 2009.

On 7 January 2009 the applicants' request for legal aid to petition the House of Lords was refused, primarily on the basis that the transfer (see paragraph 80 below) meant that no effective remedy would be available.

On 6 February the applicants lodged a petition for leave to appeal with the House of Lords. It was refused on 16 February 2009.

The applicants submitted that at the date of transfer they faced allegations of war crimes, punishable with sentences including the death penalty. In trials before the IHT to date, 78.4% of those tried had been convicted and of those, 35% had been sentenced to death. Despite strenuous efforts, and a letter from one of the victim's family asking for clemency, the Government had, by the date of transfer, been unable to obtain an assurance from the Iraqi authorities that the death penalty would not be imposed. On the face of the evidence, there was a clear and real risk that the applicants would be executed if convicted by the IHT, as both the Divisional Court and the Court of Appeal had accepted.

The applicants reasoned that in accordance with Article 30 of the Vienna Convention on the Law of Treaties, Article 2 should be interpreted in the light of Article 1 of Protocol No. 13. Thus, for those States which had ratified the Protocol, the exception in the second part of the second sentence of Article 2 § 1 should be abrogated, with the effect that the passing or execution of a death penalty would breach Article 2 as well as Article 1 of Protocol No. 13. Support for this approach could be found in Soering v. the United Kingdom, 7 July 1989, §§ 102–104, Series A no. 161 and Öcalan v. Turkey [GC], no. 46221/99, §§ 164–165, ECHR 2005-IV. Moreover, the position across Europe had developed significantly since Öcalan, with Protocol No. 13 in force in over 85% of the Council of Europe States. Hanging was an ineffectual and extremely painful method of killing, such as to amount to inhuman and degrading treatment in breach of Article 3.

In any event, the Court in Öcalan (§§ 166–169) had held that passing the death penalty following a trial which failed to meet ‘the most rigorous standards of fairness … both at first instance and on appeal’ would breach both Articles 2 and 3. It was argued by the Government in the domestic proceedings, and accepted by the Court of Appeal, that the threshold in foreign cases was met only by the imposition of the death penalty following a flagrantly unfair trial. However, this conclusion was not borne out by the Court's case-law; in Bader and Kanbor v. Sweden, no. 13284/04, § 47, ECHR 2005-XI the Court referred also to the risk of the imposition of the death penalty following an unfair trial; to the extent that Bader was authority for the Government's position, that decision was inconsistent with the reasoning of the Grand Chamber in Öcalan.

There was no obligation under either Iraqi domestic law or international law which required either for the applicants' cases to be referred to the Iraqi criminal courts or for them to be reclassified as criminal detainees. The laws and regulations applicable in Iraq, whether adopted by the CPA or by the Iraqi Government, could not be determinative of the issues before the Court, which was concerned with the United Kingdom's obligations under the Convention. In any event, CPA Memorandum No. 3 (Revised) was expressly limited to persons taken into detention after June 2004 and ‘not considered security internees’, whereas the applicants were taken into detention before that date and had at all times been held as security internees.

Moreover, there was no evidence that the Iraqi authorities had in any way sought the referral of the applicants' case. The applicants were alleged to have been agents of the former Iraqi regime who had, three days into the active hostilities between Iraq and the United Kingdom, killed agents of the United Kingdom State. Their alleged offence was an international crime, as much contrary to United Kingdom law as it was to Iraqi law. It was the United Kingdom, not Iraq, which detained them, investigated their alleged offences and thereafter sought their prosecution. The minutes of the meetings of the Divisional Internment Review Committee (‘DIRC’: see paragraph 44 above) indicated that the case was only accepted by the Iraqi authorities following considerable persuasion and assistance by the United Kingdom authorities. The Government's repeated suggestion that the decision to detain and prosecute the applicants before the Iraqi courts was an unfettered exercise of Iraqi sovereignty, with which the United Kingdom Government could not contemplate interfering, was unsustainable given the content of the DIRC minutes. The Government's observations focused on the requirement under international law to respect Iraqi sovereignty and failed to mention the United Kingdom's sovereignty. Equally, while the Government placed repeated reliance on the relevant UNSCRs, they had failed to refer to the obligations clearly expressed therein that the States concerned had to comply with their international obligations, including under humanitarian and human rights law. The United Kingdom Ministry of Defence's Joint Doctrine Publication on Detainees (see paragraph 91 above) also recognised that detainees held by United Kingdom Armed Forces abroad should not be transferred to the authorities of the territorial State where there was a reason to believe that they would suffer abuses of their human rights. However, the DIRC minutes also showed that the decision to refer the case was taken with high-level authorisation in circumstances where the United Kingdom authorities were fully aware of the risk to the applicants of the death penalty.

The applicants further submitted that the Government had not established that, even if there had been an obligation under Iraqi or international law to transfer the applicants to Iraqi jurisdiction, it had to compel the disapplication of the Convention. The national courts had followed the Court of Appeal's approach in R(B) (see paragraph 94 above) but there was no authority in the Court's case-law to show that the R(B) approach was correct. Indeed, the Government's contention that its other international obligations should have the effect of entirely displacing its obligations under the Convention was irreconcilable with the judgment in Soering, cited above. The requirement on the Court was to interpret the Convention as far as possible in conformity with other international obligations, whilst heeding its special character as a human rights treaty. Whilst the applicants accepted that the death penalty was not contrary to universal norms of customary international law, there was a clear opinion juris and State practice supporting a regional customary international law prohibition on exposure to the death penalty by European States. Thus, in addition to the obligation under the Convention, the United Kingdom was under a customary international law obligation not to expose the applicants to a risk of the death penalty. The Court had also to consider this obligation when interpreting the respondent State's Convention obligations in this case.

If the applicants' cases had not been referred to the Iraqi courts and if the applicants had not been reclassified as criminal detainees, they would have remained as security internees. As such, they could have remained in internment only for so long as they presented an imperative threat to security and could have been released as soon as the threat was perceived as no longer existing. The United Kingdom had released numerous security internees; it appeared from the DIRC minutes that 69 former internees were released from the detention facility where the applicants were held between April and October 2007 and the statistics provided on the Ministry of Defence website showed a total of 162 former internees set at liberty in 2007. In the alternative, it would have been open to the United Kingdom authorities to prosecute the applicants on war crimes charges. This would have been permitted during the period of the occupation under Article 70 of the Fourth Geneva Convention (see paragraph 90 above). Even once the occupation had come to an end in June 2004 the United Kingdom retained universal jurisdiction over alleged war crimes, by virtue of section 1 of the Geneva Conventions Act 1957 (see paragraph 91 above). The MoU of 8 November 2004 (see paragraph 25 above) specifically envisaged that the United Kingdom would be entitled to take custody with a view to trying them for war crimes: section 3(4)(a)(i) required that, in relation to any criminal suspect transferred by the United Kingdom to the Iraqi authorities, Iraq would inform the United Kingdom before releasing them and would comply with any request for the United Kingdom to reassume custody if they were ‘wanted for prosecution by any state that has contributed forces to the MNF for breaches of the laws and customs of war’. Any suggestion that the United Kingdom had no ongoing legal power to detain or try persons suspected of war crimes was therefore at odds with the agreement concluded with Iraq. Such a trial could have taken place on a United Kingdom base in Iraq, in a neutral third state or in the United Kingdom. However, it does not appear that any consideration was given to this method of reconciling the desire to prosecute the applicants and the need to safeguard their human rights, nor any attempt made to negotiate such an outcome with the Iraqi authorities.

The Government submitted that, at the date of transfer, there were no substantial grounds for believing that the applicants would face the death penalty, if convicted. While it was correct that Iraqi law permitted capital punishment in respect of offences such as those charged against the applicants, there was no presumption in favour of the death penalty. Following more recent trials before the IHT, such as the 1991 Uprising, the Friday Prayers and the Merchants cases, all of which involved extremely serious charges of crimes against the Iraqi people, only six of the 27 individuals convicted had received the death penalty. In addition, a letter had been sent by relatives of one of the murdered soldiers requesting clemency and the United Kingdom authorities had communicated their opposition to the death penalty to the IHT's President and to the Iraqi authorities (see paragraphs 27–35 and 50–54 above).

Moreover, even if the Court were to find that the applicants were at a real risk of being executed following conviction by the IHT, the relevant test under Articles 2 and 3 was that set out in Bader, cited above, namely the risk that the individual would suffer a flagrant denial of a fair trial in the receiving State, the outcome of which was or was likely to be the death penalty. In the present case, the evidence, as the domestic courts held, was that the applicants would receive a fair trial before the IHT.

The Government were opposed to capital punishment and the United Kingdom was bound by the prohibition on the death penalty in Article 1 of Protocol No. 13. They had communicated their concerns about the reintroduction of the death penalty to the Iraqi authorities (see paragraphs 27–35 above). Nonetheless, the availability of the death penalty in Iraqi law and/or its imposition by the Iraqi courts would not, as such, be contrary to international law. Nor could they accept that execution by hanging per se resulted in additional suffering, over and above that inherent in the carrying out of the death penalty, such as to raise an issue under Article 3. In these circumstances, any risk of its imposition would not justify the United Kingdom in refusing to comply with its obligation under international law to surrender Iraqi nationals, detained at the request of the Iraqi courts, to those courts for trial. The Convention had to be interpreted in the light of and in harmony with other principles of international law and the relevant international law principle in this case could not be more fundamental: the principle that all States must recognise the sovereignty of other States.

The Court had to give effect to limitations on the exercise of a Contracting State's jurisdiction, generally accepted by the community of nations, stemming from the fact that the State was acting on the territory of a third State. From the early stages of the occupation period, the UNSC sought to uphold the sovereignty of Iraq and to establish government of Iraq by Iraq; this could be seen in UNSCR 1483 of 22 May 2003, for example (see paragraph 14 above). The actions of the occupiers were limited by international law in so far as concerned the powers of internment. Pursuant to Article 78 of the Fourth Geneva Convention (see paragraph 90 above), which applied directly during the occupation period, internment was only permissible where necessary for imperative reasons of security. That restriction was reflected in the applicable domestic law, namely section 7(1) of CPA Memorandum No. 3 of 18 June 2003 (see paragraph 13 above). The sovereignty of Iraq, the government of Iraq by Iraq and the limited powers of third states in Iraq were reflected all the more strongly in the UNSCRs in the post-occupation phase: see UNSCR 1546 (paragraph 19 above). It followed from Iraq's sovereignty that the United Kingdom was not entitled to intern or detain Iraqi nationals on Iraq's territory except as permitted by Iraq or otherwise authorised by a binding UNSCR. CPA Order No. 48, enacted pursuant to UNSCR 1483, provided for the establishment of the IHT precisely so that the Iraqi judicial authorities could investigate and try Iraqi nationals accused of war crimes in Iraq. Once informed of the evidence against the applicants, the Iraqi authorities wished to investigate and try them. This was why arrest warrants were issued and why the IHT repeatedly requested the transfer of the applicants to its custody.

The United Kingdom had no option other than to transfer the applicants. It was operating in a foreign sovereign State which was demanding the applicants' return. As of midnight on 31 December 2008 the United Kingdom would have had no legal basis of any kind for detaining the applicants and no physical means of continuing to detain them or preventing the Iraqi authorities from entering the base and removing them. The other options would have been equally unworkable. If the United Kingdom had released the applicants, this would have amounted to a violation of Iraqi sovereignty and would have impeded the Iraqi authorities in carrying out their international law obligation to bring alleged war criminals to justice. It would have been impossible to try the applicants in the United Kingdom. The United Kingdom could not simply remove from Iraq two Iraq nationals suspected of war crimes committed in Iraq. Removal would have been dependent on the permission of Iraq and would otherwise have been in violation of Iraqi sovereignty. Extradition would also have required the consent of the Iraqi authorities. For these reasons, the case was clearly distinguishable from such cases as Soering or Chahal, both cited above, where the remedy sought by the applicant was to remain on the Contracting State's territory and where the Contracting State had a discretion whether or not to extradite or deport him.

The Equality and Human Rights Commission submitted that there was a theme in the jurisprudence of the Court regarding the relationship between a State's international law obligations and its substantive obligations under the Convention. The Court had not generally regarded the substantive Convention obligations as displaced by virtue of a competing or conflicting international law obligation. A similar approach had recently been taken by the Grand Chamber of the European Court of Justice in Kadi and Al-Barakaat v European Union Council (Joined Cases C-402/05 & C-415/05P.

The group of interveners (see paragraph 6 above) similarly maintained that, in accordance with Convention principles and jurisprudence and the general principles of customary international law as declared in the Vienna Convention, the European Convention on Human Rights was not generally displaced by other international legal obligations, including bi-lateral treaties. The primary factors to be taken into account in resolving the question of an apparent conflict of obligations were:

The Convention was a multilateral treaty containing erga omnes partes human rights obligations. A State entering into a conflicting agreement with a non-Convention State continued to owe legal obligations to the other States Parties to the Convention. The Convention jurisprudence, particularly in cases concerning extradition, affirmed that other treaties did not displace the obligations under the Convention. In a line of cases, the Court had considered treaties providing for the transfer of competencies to international organisations and held such transfers to be generally permissible, but only provided that Convention rights continued to be secured in a manner which afforded protection at least equivalent to that provided under the Convention. The interveners submitted that similar principles should apply where a subsequent international obligation of a Contracting State, by treaty or otherwise, provided for joint or co-operative activity with another State, that impacted on the protection of Convention rights within the Contracting State's jurisdiction.

The Court recalls that the first applicant was arrested by soldiers from the United Kingdom contingent of the MNF on 30 April 2003 and the second applicant on 21 November 2003. They were held in United Kingdom-run detention facilities, as security internees. However, from an early stage in the applicants' internment the British authorities were investigating their involvement in the murders of Staff Sergeant Cullingworth and Sapper Allsopp (see paragraphs 40–43 above).

On 28 June 2004 the occupation of Iraq came to an end. In August 2004 the death penalty was reintroduced into the Iraqi Penal Code in respect of a number of offences, including murder (see paragraph 23 above).

On 16 December 2005 the United Kingdom authorities referred the applicants' cases to the Iraqi criminal courts (see paragraph 45 above). On 18 May 2006 the Basra Criminal Court made an order authorising their continued detention by United Kingdom forces and on 21 May 2006 the United Kingdom authorities decided to re-classify the applicants as ‘criminal detainees’ (see paragraph 46 above). From 27 December 2007 the IHT requested that the applicants be transferred to its custody to stand trial on charges carrying the death penalty (see paragraph 48 above). On 31 December 2008 the United Kingdom authorities physically transferred the applicants to the custody of the Iraqi police (see paragraph 80 above).

The applicants' trial before the IHT commenced on 11 May 2009. They were originally charged with killing the two British soldiers when they had clearly surrendered, an offence carrying a maximum penalty of the death sentence. On 21 July 2009, following the close of evidence, the original capital charges against the applicants were withdrawn and an offence which did not carry the death penalty was substituted. A week later an additional charge was added, which could in principle have been punishable by death. In January 2010 the Court of Cassation decided to remit the case for renewed investigation and retrial (see paragraphs 82–89 above).

The Court notes that the Divisional Court and the Court of Appeal concluded, shortly before the physical transfer took place, that substantial grounds had been shown for believing there to be a real risk of the applicants' being condemned to the death penalty and executed (see paragraphs 60 and 70 above). In coming to this conclusion, the domestic courts took into account the facts that the death penalty was available for the offences with which the applicants were charged; that there was clear evidence that persons convicted of such offences were liable in practice to be sentenced to death; that no assurance that the death penalty would not be applied had been given by the Iraqi authorities and that the other factors relied on by the Government, for example the letter from the family of one of the victims requesting clemency, were not sufficiently cogent nor certain to negative the risk.

The Court, having itself examined the evidence, sees no reason to depart from the findings of the national courts on this issue. Moreover, it considers that, despite the additional letter submitted by the United Kingdom Government to the IHT in July 2009, informing the IHT that the family of the other murdered soldier did not want the death penalty to be imposed (see paragraph 86 above), the Iraqi authorities have still not given any binding assurance that it will not. The applicants' case has recently been remitted for reinvestigation and retrial and it is impossible to predict the outcome. In these circumstances the Court does not consider that the risk of the applicants' being executed has been entirely dispelled.

Moreover, it considers that, given the nature of the evidence and allegations against the applicants, from August 2004, when the death penalty was reintroduced in Iraq, there were substantial grounds for believing that they would run a real risk of being sentenced to death if tried and convicted by an Iraqi court. Indeed, the minute of the meeting of the Divisional Internment Review Committee (DIRC) of 27 July 2004 recorded that the United Kingdom Secretary of State was already at that stage concerned about the death penalty (see paragraph 44 above). Similar expressions of concern were reported in the minutes of 31 August 2004 and 31 January and 3 May 2005.

The applicants must themselves have been aware of this risk. The Court considers that, at least from May 2006, when the Iraqi criminal courts accepted jurisdiction over their cases, the applicants were subjected to a well-founded fear of execution. It is reasonable to assume that this fear caused the applicants intense psychological suffering. It must have continued throughout their appeals to the Iraqi courts against the referral of their cases to the IHT (see paragraph 47 above) and the refusal of the English domestic courts to prevent their physical transfer to the Iraqi authorities. It undoubtedly intensified around 31 December 2008, when the risk became more concrete and the transfer took place, and continues to this day.

Protocol No. 13 came into force in respect of the United Kingdom on 1 February 2004. The Court considers that, from that date at the latest, the respondent State's obligations under Article 2 of the Convention and Article 1 of Protocol No. 13 dictated that it should not enter into any arrangement or agreement which involved it in detaining individuals with a view to transferring them to stand trial on capital charges or in any other way subjecting individuals within its jurisdiction to a real risk of being sentenced to the death penalty and executed. Moreover, it considers that the applicants' well-founded fear of being executed by the Iraqi authorities during the period May 2006 to July 2009 must have given rise to a significant degree of mental suffering and that to subject them to such suffering constituted inhuman treatment within the meaning of Article 3 of the Convention.

The Government have contended that, in accordance with well established principles of international law, they had no option but to respect Iraqi sovereignty and transfer the applicants, who were Iraqi nationals held on Iraqi territory, to the custody of the Iraqi courts when so requested. In this respect, however, the Court refers to its case-law, summarised in paragraphs 126–128 above, to the effect that it is not open to a Contracting State to enter into an agreement with another State which conflicts with its obligations under the Convention. This principle carries all the more force in the present case given the absolute and fundamental nature of the right not to be subjected to the death penalty and the grave and irreversible harm risked by the applicants.

The domestic courts considered themselves bound by the principles of international law concerning ‘diplomatic asylum’, as applied by the Court of Appeal in the R(B) case (see paragraphs 58, 72 and 94 above), to find that the duty to provide refuge extra-territorially could operate only where there was clear evidence that the territorial State intended to subject the individual to treatment so harsh as to constitute a crime against humanity. It is not necessary in this judgment for the Court to examine generally the principles of ‘diplomatic asylum’ or to establish when, if ever, the surrender of an individual by a Contracting State's diplomatic or consular agents could give rise to a violation of the Convention. It merely notes in passing that the Commission in its admissibility decision in W.M. v. Denmark, no. 17392/90, Commission decision of 14 October 1992, Decisions and Reports 73, p. 193, appeared to assume, albeit without detailed reasoning, that the Soering principle against refoulement would apply where an individual sought and was refused refuge in a Contracting State's embassy.

The Court considers in any event that the facts of the present case are such as clearly to distinguish it from a situation of ‘diplomatic asylum’, for the following reasons. Diplomatic and consular premises have a particular status under international law. When a State sets up a diplomatic mission it agrees to respect the laws of the territorial State and not to interfere in its internal affairs (Vienna Convention on Diplomatic Relations, Article 41 § 1: see paragraph 93 above); this is one of the conditions on which the territorial State consents to the establishment of the mission. Thus, when an individual seeks refuge at an embassy, the obligations owed by the sending State to the territorial State are known and apply ab initio (although there may be other conflicting obligations, for example under the Convention). In contrast, in the present case, the applicants did not choose to seek refuge with the authorities of the United Kingdom; instead, the respondent State's armed forces, having entered Iraq, took active steps to bring the applicants within the United Kingdom's jurisdiction, by arresting them and holding them in British-run detention facilities (see Al-Saadoon and Mufdhi v. the United Kingdom (dec.), no. 61498/08, §§ 84–89, 30 June 2009). In these circumstances, the Court considers that the respondent State was under a paramount obligation to ensure that the arrest and detention did not end in a manner which would breach the applicants' rights under Articles 2 and 3 of the Convention and Article 1 of Protocol No. 13.

In any event, the Government have not satisfied the Court that the need to secure the applicants' rights under Articles 2 and 3 of the Convention and Article 1 of Protocol No. 13 inevitably required them to act in contravention of Iraqi sovereignty. It does not appear from the evidence before the Court that, despite the concerns voiced at ministerial level as early as July 2004 about the risk of the imposition of the death penalty if the applicants were tried by the Iraqi courts (see paragraph 44 above), any real attempt was made to negotiate with the Iraqi authorities to prevent it. According to the evidence of Mr Watkins before the Divisional Court and Court of Appeal (see paragraphs 56 and 66 above), it was the judgment of the United Kingdom Government towards the end of 2008 that it would not be politic even to raise with the Iraqi Government the possibility of removing the applicants to the United Kingdom or continuing to detain them in Iraq after 31 December 2008. However, it would appear from the minute of the DIRC meeting of 28 September 2004 that the Iraqi prosecutors initially had ‘cold feet’ about bringing the case themselves, because the matter was ‘so high profile’ (see paragraph 44 above). This could have provided an opportunity to seek the consent of the Iraqi Government to an alternative arrangement involving, for example, the applicants being tried by a United Kingdom court, either in Iraq or in the United Kingdom. It does not appear that any such solution was ever sought.

The Government accept, moreover, that no attempt was made, during the negotiations for the United Kingdom-Iraqi MoU of November 2004 or at any other time, to seek a general assurance from the Iraqi authorities that, in the light of the United Kingdom's binding obligations under the Convention and Protocol No. 13, no individual transferred from the physical custody of the United Kingdom Armed Forces could be subjected to the death penalty. Similarly, the Government do not contend that, before the decision was made to refer the applicants' cases to the Iraqi courts, any request was made to the Iraqi authorities for a binding assurance that, if the cases were referred, the applicants would not be at risk of capital punishment. Indeed, it would appear that it was only after the applicants had lodged an application for judicial review before the Divisional Court that a first effort was made to seek clemency on their behalf. However, as the domestic courts found, no binding guarantee was obtained.

In summary, therefore, the Court considers that, in the absence of any such binding assurance, the referral of the applicants' cases to the Iraqi courts and their physical transfer to the custody of the Iraqi authorities failed to take proper account of the United Kingdom's obligations under Articles 2 and 3 of the Convention and Article 1 of Protocol No. 13 since, throughout the period in question, there were substantial grounds for believing that the applicants would face a real risk of being sentenced to death and executed.

The outcome of the applicants' case before the IHT is currently uncertain. While the applicants remain at real risk of execution since their case has been remitted for reinvestigation, it cannot at the present time be predicted whether or not they will be retried on charges carrying the death penalty, convicted, sentenced to death and executed. Whatever the eventual result, however, it is the case that through the actions and inaction of the United Kingdom authorities the applicants have been subjected, since at least May 2006, to the fear of execution by the Iraqi authorities. The Court has held above that causing the applicants psychological suffering of this nature and degree constituted inhuman treatment. It follows that there has been a violation of Article 3 of the Convention.

In the circumstances, and in view of the above finding, the Court does not consider it necessary to decide whether there have also been violations of the applicants' rights under Article 2 of the Convention and Article 1 of Protocol No. 13.

The applicants submitted that the consequences of transferring them to the Iraqi authorities in breach of the Court's Rule 39 indication could not have been more serious, both as to their right to individual petition and their right to an effective remedy. Both this Court's judgment in Paladi v. Moldova [GC], no. 39806/05, § 92, 10 March 2009 and the International Court of Justice's judgment in LaGrand (judgment of 27 June 2001, ICJ Reports 2001), on which the Government relied, made it clear that the obligation was to take all reasonable steps to comply with an indication of interim measures. Nonetheless, the Government had conceded that at no stage did they make any approach to the Iraqi authorities to investigate the possibility of detaining the applicants at the United Kingdom detention facility at Basra for the matter of the few weeks or months that it would take for the legal issues to be resolved. Moreover, the Government had failed to inform either the Court or the applicants' representatives on the morning of 31 December 2008 that they did not intend to comply with the Rule 39 indication. The Court was informed only when the transfer had taken place.

They claimed that the Government had been fully aware that the House of Lords did not have provision for vacation business and that the earliest a petition for leave to appeal and interim relief could be lodged was 12 January 2009. In transferring the applicants before that date, the Government knew that their right to seek such leave and thus their chance of an effective domestic remedy would be vitiated.

The Court had held in Paladi, cited above, that it was for a respondent Government to demonstrate that there was an objective impediment which prevented its compliance with an interim measure indicated under Rule 39 of the Rules of Court. In the Government's submission, the question whether there was such an objective impediment had to be assessed in each case with reference to the legal or factual scenario. As the Court had confirmed in its case-law, the Convention had to be interpreted in the light of and in harmony with other principles of international law. This was no less the case when it came to the interpretation of Article 34 and Rule 39. Indeed, much of the reasoning behind the Court's decision in Mamatkulov, cited above, as to the binding nature of Rule 39 indications was based on consideration of other principles of international law, including the judgment of the International Court of Justice in LaGrand, cited above. In the LaGrand judgment, in a passage cited by the Court in Paladi, the International Court of Justice emphasised that its Order of provisional measures ‘did not require the United States to exercise powers it did not have’, although it did impose the obligation to take all measures at its disposal to ensure that Walter LaGrand was not executed pending the conclusion of the proceedings.

In the present case, the Rule 39 indication should not be interpreted as requiring the Contracting State to exercise powers it did not have, including notably the power to continue to detain the applicants after midnight on 31 December 2008. An indication under Rule 39 could not require a Contracting State to violate the law and sovereignty of a non-Contracting State. This was, indeed, an exceptional case. If it was correct that the relevant acts fell within the jurisdiction of the United Kingdom, the case was by definition ‘exceptional’ in terms of the extraterritorial application of the Convention (see Banković, cited above, § 74). Further, the exceptional nature of the case derived specifically from the fact that the United Kingdom was acting or being required to act outside its own territory. It could not comply with the Rule 39 indication precisely because it was on the territory of another State. The Government were proud of their long history of cooperation with the Court and their compliance with previous Rule 39 indications. They had failed to comply with the indication in this case only because there was an objective impediment preventing compliance.

The Government dismissed as irrelevant the submissions by the third parties to the effect that the obligation to comply with a Rule 39 indication was not discharged by a competing international obligation (see paragraphs 158–159 below). The present case did not involve conflicting obligations where a State could choose to act either in accordance with treaty A or treaty B. The simple point, which the interveners did not address, was that the Government could not comply with the Rule 39 indication; they did not have the relevant powers nor any discretion as to how to act. The applicants alleged that the Government could have done more, but this was to ignore the extreme sensitivity of the important and urgent negotiations that were taking place with Iraq at that time (see paragraphs 56 and 66 above).

In the Government's submission, the complaint under Article 13 was unfounded since the applicants did not seek leave to appeal to the House of Lords until 9 February 2009. At the time of the transfer there were no domestic proceedings pending.

The Equality and Human Rights Commission submitted that there could be no principled exception to the principle in Mamatkulov, cited above, that a State's failure to comply with an interim measure would be a violation of Article 34, where the State's failure was based on an international law obligation (assuming that such an obligation had been identified and existed). The rejection of such an exception flowed from the Court's case-law regarding conflicts between international law obligations and substantive Convention obligations and also from the rationale behind the Mamatkulov rule, which was the need to protect the practical effectiveness of the Convention system for individual applicants.

The group of interveners (see paragraph 6 above) reasoned that, given the purpose and significance of interim measures in protecting Convention rights, the obligation under Article 34 to abide by these measures should be strictly and consistently applied. A State had to take all steps available to it to comply with the order and, in deciding whether and to what extent to comply with interim measures, could not substitute its own judgment for that of the Court. The judgments in Soering and Mamatkulov demonstrated that a competing international obligation did not permit the disregard of interim measures.

Interim measures under Rule 39 of the Rules of Court are indicated only in limited spheres. In practice, the Court will make such an indication only if there is an imminent risk of irreparable damage. While there is no specific provision in the Convention concerning the domains in which Rule 39 will apply, requests for its application usually concern the right to life (Article 2), the right not to be subjected to torture or inhuman treatment (Article 3) and, exceptionally, the right to respect for private and family life (Article 8) or other rights guaranteed by the Convention (see Mamatkulov, cited above, § 104). Under the Convention system, interim measures play a vital role in avoiding irreversible situations that would prevent the Court from properly examining the application and, where appropriate, securing to the applicant the practical and effective benefit of the Convention rights asserted. Accordingly, in these conditions a failure by a respondent State to comply with interim measures will undermine the effectiveness of the right of individual application guaranteed by Article 34 and the State's formal undertaking in Article 1 to protect the rights and freedoms set forth in the Convention (Mamatkulov, cited above, § 125).

Article 34 will be breached if the authorities of a Contracting State fail to take all steps which could reasonably have been taken in order to comply with the interim measure indicated by the Court (Paladi, cited above, § 88). In examining a complaint under Article 34 concerning the alleged failure of a Contracting State to comply with an interim measure, the Court will not re-examine whether its decision to apply interim measures was correct. It is for the respondent Government to demonstrate to the Court that the interim measure was complied with or, in an exceptional case, that there was an objective impediment which prevented compliance and that the Government took all reasonable steps to remove the impediment and to keep the Court informed about the situation (Paladi, cited above, § 92).

As stated above, the Court's approach in interpreting the Convention must be guided by the fact that its object and purpose as an instrument for the protection of individual human beings requires that its provisions be interpreted and applied so as to make its safeguards practical and effective. It has found that the decisions of the United Kingdom authorities to refer the applicants' cases to the Iraqi courts in December 2005 and to transfer them physically to Iraqi custody on 31 December 2008, without having first received any binding assurance that they would not be subjected to the death penalty, put them at real risk of being executed. It has further found that, as a matter of principle, it was not open to the respondent State to enter into an agreement or arrangement with another State which conflicted with its obligations under Articles 2 and 3 of the Convention and Article 1 of Protocol No. 13. Finally, it has found that the Government have failed to establish that there were no realistic or practicable means available to them by which to safeguard the applicants' fundamental human rights. In these circumstances, the ‘objective impediment’ claimed by the Government, namely the absence, on 31 December 2008, of any available course of action consistent with respect for Iraqi sovereignty other than the transfer of the applicants, was of the respondent State's own making.

Moreover, the Government have not satisfied the Court that they took all reasonable steps, or indeed any steps, to seek to comply with the Rule 39 indication. They have not informed the Court, for example, of any attempt to explain the situation to the Iraqi authorities and to reach a temporary solution which would have safeguarded the applicants' rights until the Court had completed its examination.

It is true that from June 2008 the Government began to make approaches to the Iraqi authorities, initially to ascertain from the President of the IHT what steps would be effective under Iraqi law and practice to reduce the risk of the applicants receiving the death sentence (see paragraphs 50–54 above). Subsequently, in July 2008 the Government contacted the Iraqi prosecutors and requested them to inform the IHT that the Government were opposed to the death penalty and that neither of the families of the two murdered soldiers wished it to be imposed (see paragraph 86 above). These contacts may or may not have contributed to the IHT's decisions to amend the charges against the applicants (see paragraphs 86–88 above); this is not a matter on which the Court is able to speculate. However, as the domestic courts also found, the Government's approaches to the Iraqi authorities prior to the transfer of the applicants on 31 December 2008 were not sufficient to secure any binding assurance that the death penalty would not be applied and the applicants remained at real risk when the United Kingdom decided not to comply with the Court's indication under Rule 39. The Government's efforts in 2009 to persuade the Iraqi authorities not to use the death penalty came after the applicants had left United Kingdom jurisdiction and therefore at a time when the United Kingdom authorities had lost any real and certain power to secure their safety. Moreover, to date no binding assurance that the death penalty will not be applied has been given and the applicants' fate remains uncertain.

In conclusion, the Court does not consider that the authorities of the Contracting State took all steps which could reasonably have been taken in order to comply with the interim measure taken by the Court. The failure to comply with the interim measure and the transfer of the applicants out of the United Kingdom's jurisdiction exposed them to a serious risk of grave and irreparable harm.

In the admissibility decision of 30 June 2009 (see paragraph 7 above) the Court joined the question of the admissibility of Article 13 to the merits. Having now examined the merits, and having found in connection with Article 34 that there was no objective justification for the transfer, it reaches the conclusion on similar grounds that the effectiveness of any appeal to the House of Lords was unjustifiably nullified as a result of the Government's transfer of the applicants to the Iraqi authorities. The Court therefore finds the complaint under Article 13 admissible and it finds violations of Articles 13 and 34 of the Convention.