Letter from Rt Hon Bob Ainsworth MP, Minister
of State for Armed Forces, Ministry of Defence, dated 26 January
2009
AL-SAADOON
& MUFDHI V
UNITED KINGDOM
(APPLICATION NO
61498/08)
Thank you for your letter of 13 January
2009 to the Defence Secretary regarding the transfer of Mr
Al Saadoon and Mr Mufdhi to the physical custody of the Iraqi
High Tribunal.
I understand your concern about the Government's
decision to effect the transfer notwithstanding the interim measures
indicated by the European Court of Human Rights at Strasbourg.
I can assure you that we take very seriously our responsibilities
in relation to such measures. However, after very careful consideration
of the exceptional circumstances of this case, we concluded that
the only lawful option was to transfer Mr Al Saadoon and Mr Mufhdi
to the Iraqi authorities. To help you understand our position,
it might be helpful if I set out the analysis behind our decision.
On 30 December 2008, the Court of Appeal
held that Mr Al Saadoon and Mr Mufdhi were not within the jurisdiction
of the UK for the purposes of the ECHR. Further, after the expiry
of UN Security Council resolution 1790(2007) on 31 December
2008, the UK had no legal power to detain any individuals in Iraq.
Thus we were faced with the option of breaching the Rule 39 measure
or acting unlawfully in international law. The Iraqi authorities
would have been entitled under the law in force after 31 December
2008 to enter the detention facility where Mr Al Saadoon
and Mr Mufdhi were held and remove them.
The Court of Appeal recognised this dilemma
when they refused to grant an injunction preventing transfer pending
any application to Strasbourg, stating:
"It is clear that we could not grant an
interim injunction past 31 December and the critical question
is whether we should grant some injunction until the end of 31 December.
The conclusion we have reached is that the answer is no, because
the basis for doing that would contemplate as a possibility that
the Strasbourg court could make further orders for interim measures
which would require UK personnel to resist the handover, contrary
to the United Kingdom's international law obligations. So the
application for interim measures is refused".
Turning to your specific questions:
1. On which day and at what time did the United
Kingdom Government receive communication of the interim measures
decision of the European Court of Human Rights?
2. On which day and at what time were you,
or your officials, made aware of this decision?
On 30 December at 15.37 (UK time,
16.37 Strasbourg time) the ECtHR wrote to the Government
indicating measures to be taken under rule 39 of the Rules
of Court. It is against that context which the decision of the
Government was made, as recorded in the letter to the ECtHR dated
31 December and copied to Public Interest Lawyers. This clearly
sets out the Government's position and explained that the decision
not to act in accordance with the indication of the Strasbourg
court was "wholly exceptional".
3. At what time on 31 December 2008 were
the applicants transferred to the custody of the Iraqi authorities?
The Applicants were transferred to the physical
custody of two Iraqi Police Service officers on 31 December
2008 at 1615 hrs local Iraqi time (ie 1315 hrs
UK time).
4. Were the applicants' legal representatives
made aware of the decision to transfer them to the Iraqi authorities
on 31 December 2008, and if so, at what time and by what
means? If not, why not?
Notification of decision to transfer was contained
in the letter from FCO to the ECtHR of 31 December, which
was copied to the applicants' legal representatives by email at
16.00 on 31 December 2008.
5. I would be grateful if you could provide
a more detailed explanation of the Government's view that its
decision to transfer the applicants is compatible with the right
of individual petition secured by Article 34 ECHR, in the
light of the interim measures decisions of the European Court
of Human Rights. In particular:
(a) Why does the Government consider
it was appropriate to ignore the interim measures decision of
the European Court on the basis of the UK courts' interpretation
of international law, and on the application of the ECHR?
It is the Government's policy to comply with
Rule 39 measures indicated by that Court as a matter of course
where it is able to do so. However, in the wholly exceptional
circumstances of this case, and in particular given that continued
detention of the applicants would have been unlawful, there was
no lawful option other than transfer to the Iraqi authorities.
The Government therefore took the view that, exceptionally, it
could not comply with the measure indicated by the Court; and
that this action should not be regarded as a breach of article
34 of the Convention in this case.
(b) Does the Government agree that
the final interpretation of the convention and the scope of its
application is a matter for the ECHR? If not, please explain the
Government's view.
The Government accepts that, ultimately, the
question as to whether the United Kingdom has complied with its
obligations under the Convention in any given case is a matter
for the European Court of Human Rights, which has jurisdiction
to consider all matters relating to the interpretation and application
of the Convention that are referred to it. The final judgments
of that Court in cases to which the United Kingdom is a party
are binding on the Government.
6. I would be grateful it you could outline
any communications which the United Kingdom Government has had
with the Committee of Ministers of the Council of Europe in respect
of this case. We would be grateful for copies of any information
sent by the Government to the Committee of Ministers, or which
is sent in due course.
There have been no communications between the
Government and the Committee of Ministers of the Council of Europe
in respect of this case. We attach a copy of the FCO's letter
to the Secretary General of the Council of Europe of 31 December
2008, informing the Secretary General of the circumstances surrounding
the Government's decision. The attachment referred to in that
letter (a transcript of proceedings in the Court of Appeal) was
subsequently supplied to the Secretary General's office at their
request.
Annex
Letter from the Foreign and Commonwealth
Office to the Section Registrar, European Court of Human Rights,
Council of Europe, Strasbourg
APPL NO
61498/08: AL-SAADOON
& MUFDHI-V-THE
UNITED KINGDOM
1. I refer to your letter of 30 December
2008 indicating measures under Rule 39 of the Rules
of Court that the applicants should not be removed or transferred
from the custody of the Government until further notice.
2. The Court will wish to be aware of the
Court of Appeal's unanimous decision yesterday that the applicants
do not fall within the jurisdiction of the United Kingdom for
the purposes of the Convention, that the United Kingdom detains
the applicants only at the request and to the order of the Iraqi
Higher Tribunal, and has no discretionary power to hold or release
them. It is obliged, in accordance with its international obligations
to Iraq to pass the applicants into Iraqi custody. That is the
position prior to 31 December 2008; after that date the United
Kingdom has no legal basis to continue to detain individuals in
any event. I attach a copy of the transcript of the proceedings
before the Court of Appeal, including its summary judgment; a
fully reasoned judgment is expected in due course. The court will
take note in particular of the conclusion of the Court of Appeal
that after 31 December 2008 the UK will have no power
to move the applicants anywhere else or to prevent the Iraqis
taking the applicants from British custody, and moreover, that
"British troops could not be ordered to take any steps to
prevent that happening".
3. I am now writing to inform you that the
applicants were transferred to the Iraqi authorities earlier today.
The Government took this action in accordance with their obligations
under international law, including their obligations to the Government
of Iraq, and in light of the decision of the Court of Appeal.
The issues and the background are set out in my letter of 30 December
2008, and in detail in the Government's skeleton arguments before
the Divisional Court and the Court of Appeal, copies of which
have already been provided to the Court.
4. In the circumstances, continued detention
of the applicants would have been unlawful. Given that there was
no lawful option other than transfer to the Iraqi authorities,
the Government took the view that, exceptionally, it could not
comply with the measure indicated by the Court; and further that
this action should not be regarded as a breach of Article 34 of
the Convention in this case.
5. The Government regard the circumstances
of this case as wholly exceptional. It remains the Government
policy to comply with Rule 39 measures indicated by the Court
as a matter of course where it is able to do so.
6. The Government reserve the right to address
this issue fully in further observations, should this be necessary.
26 January 2009
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