Court of Appeal
Published February 4, 2009
Regina (Al-Saadoon and Another) v Secretary of State for Defence
Before Lord Justice Waller, Lord Justice Laws and Lord Justice Jacob
Reasons January 21, 2009

Iraqi detainees held in a United Kingdom internment facility in Iraq on the authority of the local criminal court were not under the jurisdiction of the UK for the purposes of the European Convention on Human Rights.

The Court of Appeal so held, inter alia, when giving reasons for dismissing on December 30, 2008 the appeal of Faisal Attiyah Nassar Al-Saadoon and Kha Laf Hussain Mufdhi against the dismissal by the Queen’s Bench Divisional Court (Lord Justice Richards and Mr Justice Silber) ([2008] EWHC 3098 (Admin)) of their application for judicial review of a decision by the Secretary of State for Defence to transfer them from the divisional internment facility at Basra international airport, where they were held as criminal detainees on the authority of the Basra Criminal Court, into the custody of the Iraqi Higher Tribunal to be tried for the murder of two British servicemen.

The Divisional Court had held that the applicants were at real risk of the death penalty if transferred; that they were under UK jurisdiction for the purposes of article 1 of the Human Rights Convention but that the UK was obliged under international law to transfer them into the custody of Iraq and compliance did not violate their Convention rights.

Ms Karon Monaghan, QC, Mr Guy Goodwin Gill and Ms Helen Law for the applicants; Mr Clive Lewis, QC, Mr Tim Eicke and Mr Samuel Wordsworth for the secretary of state.

LORD JUSTICE LAWS, having established that the real risk of death test was met, said that the scope of the Convention was essentially territorial. Article 1 provided that party states shall secure to everyone within their jurisdiction the rights and freedoms defined in the Convention. What was meant by “within their jurisdiction”?

States had outposts (his Lordship used the word neutrally, not as a term of art) of various kinds in the territory of other states. The internment facility might be described as such an outpost, operated by the UK in the territory of Iraq.

His Lordship said that it was not easy to identify precisely the scope of the article 1 jurisdiction where it was said to be exercised outside the territory of the impugned party state, because the learning made it clear that its scope had no sharp edge; it had to be ascertained from a combination of key ideas which were strategic rather than lexical.

Drawing on Bankovic v Belgium (Application No 52207/99) ((2001) 11 BHRC 435) and the House’s opinions in R (Al-Skeini) v Secretary of State for Defence (The Times June 14, 2007; [2008] 1 AC 153) his Lordship suggested that there were four core propositions, though each needed some explanation:

1 It was an exceptional jurisdiction.

2 It was to be ascertained in harmony with other applicable norms of international law.

3 It reflected the regional nature of the Convention rights.

4 It reflected the indivisible nature of the Convention rights.

The first and second propositions implied, as perhaps did the term “jurisdiction” itself, an exercise of sovereign legal authority, not merely de facto power, by one state on the territory of another. That was of itself an exceptional state of affairs, though well recognised 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. It was impossible to reconcile a test of mere factual control with the limiting effect of the first two propositions, and, indeed, that of the last two.

The first two propositions, understood as his Lordship suggested, conditioned the others.

If a state was to exercise article 1 jurisdiction outside its own territory, the regional and indivisible nature of the Convention rights required the existence of a regime in which that state enjoyed legal powers wide enough to allow its vindication, consistently with its obligations under international law, of the panoply of Convention rights; rights which might however, in the territory in question, represent an alien political philosophy.

The Convention’s natural setting was the espace juridique of the party states; if, exceptionally, its writ was to run elsewhere, that espace juridique must in considerable measure be replicated.

In short, the state must have the legal power to fulfil substantial governmental functions as a sovereign state. It might do so within a narrow scope, as in an embassy, consulate, military base or prison; it might, in order to do so, depend on the host state’s consent or the mandate of the United Nations; but however precisely exemplified, that was the kind of legal power the state must possess: it must enjoy the discretion to decide questions of a kind which ordinarily fell to a state’s executive government. If the article 1 jurisdiction was held to run in other circumstances, the limiting conditions imposed by the four propositions set out above would be undermined.

On the facts, the UK was not before December 31, 2008, exercising any power or jurisdiction in relation to the applicants 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 December 31, 2008, British forces enjoyed no legal power to detain any Iraqi. Had they done so, the Iraqi authorities would have been entitled to enter the premises occupied by the British and recover any such person so detained.

Lord Justice Waller and Lord Justice Jacob agreed.

Solicitors Public Interest Lawyers, Birmingham; Treasury Solicitor.

Times Recommends

• BGC 'set aside £40m to lure Tullett brokers'
• Legal aid review to ensure value
• Fears as 21 magistrates' courts face closure