Al-Saadoon & Anor, R (on the application of) v Secretary of State for Defence

Extra-territorial jurisdiction under Article 1 of the European Convention on Human Rights is exceptional. It requires the exercise of sovereign legal authority, consistent with international law, and legal powers sufficiently broad to secure the indivisible Convention rights within the Convention’s regional legal space. Physical custody or factual control alone is insufficient. Where Article 1 jurisdiction exists alongside an international-law duty to surrender a person, the court must take that duty into account, although it need not automatically prevail. A foreign-transfer Article 6 claim ordinarily requires a real risk of a flagrant breach. No free-standing customary international-law rule prohibiting transfer to a death penalty, or hanging as such, was established.

The appellants were detained by British forces in Basra after being arrested in connection with the alleged murder of two British servicemen. The Iraqi Higher Tribunal requested their transfer for trial for war crimes. They sought judicial review, arguing that transfer exposed them to a real risk of execution by hanging and an unfair trial, contrary to the European Convention on Human Rights, the Human Rights Act 1998, and customary international law.

The Divisional Court accepted that there was a real risk of the death penalty but dismissed the application, holding that international law obliged the United Kingdom to transfer the appellants. The appeal concerned Article 1 jurisdiction, the interaction between Convention and international-law obligations, Article 6, and the alleged customary-law prohibition of hanging.

1. Appeal dismissed. Lord Justice Laws gave the leading judgment. Lord Justices Jacob and Waller agreed. The interim injunction was discharged and leave to appeal to the House of Lords was refused.
2. The applicable execution test was whether there were substantial grounds for believing that the appellants would face a real risk of execution. No higher standard applied merely because the proposed transfer was to a non-Convention state. The death penalty was available for the charges, and the Divisional Court was entitled to conclude that the evidence concerning clemency and sentencing did not remove the risk.
3. Article 1 jurisdiction was primarily territorial. Its extra-territorial exercise was exceptional, had to accord with international law, and reflected the regional and indivisible nature of the Convention rights. It required sovereign legal authority and sufficiently broad governmental powers, not merely physical custody or factual control. Before 31 December 2008 the British forces held the appellants to the order of the Iraqi court and exercised no autonomous sovereign power. After the mandate expired, they had no legal power to detain Iraqi nationals. The detention therefore did not place the appellants within United Kingdom jurisdiction.
4. Alternatively, if Article 1 jurisdiction existed, the court had to take into account the United Kingdom’s international-law obligation to comply with the Iraqi Higher Tribunal’s request. R (Al-Jedda) v Secretary of State for Defence [2008] 1 AC 332 and R (B) v Secretary of State for Foreign and Commonwealth Affairs [2005] QB 643 recognised that Convention and international-law obligations could coexist and conflict. The international obligation did not automatically prevail, but had to be assessed in deciding whether relief should be granted.
5. For a foreign-transfer Article 6 claim, the claimant ordinarily had to establish a real risk of a flagrant breach. The reasoning in Öcalan v Turkey (2005) 18 BHRC 293 concerned a non-foreign case and did not displace that threshold. The evidence did not establish the required risk.
6. The court assumed, without deciding, that a customary international-law rule might be sued upon if it had peremptory jus cogens status. No free-standing regional rule against refoulement to a death penalty had been established. Hanging might in principle violate customary law if it inflicted severe suffering by common consensus, but the evidence was insufficient to establish that conclusion.

• Court of Appeal (Civil Division) dismissed the appeal on 30 December 2008, giving full reasons in [2009] EWCA Civ 7.
• Divisional Court dismissed the judicial review application on 19 December 2008. No citation for that decision was stated in the judgment.