Mission Impossible?

82119864Anthony Paphiti argues that the decision in Al-Saadoon and Mufdhi v UK could mean that armed forces engaged in nation building tasks are saddled with the responsibility of guarding prisoners on behalf of a non-ECHR host nation. This, he says, may hamper the conduct of operations.

On 2 March 2010 the European Court of Human Rights (“ECtHR”), 4th Section, handed down its opinion in Al-Saadoon and Mufdhi v UK (App No 61498/08) (2010) Times, 10 March. The decision has hampered the conduct of operations for armed forces of Council of Europe States, especially those engaged on nation building tasks arising in the aftermath of conflict, which seek to restore the institutions of government and law and order.


In 2003 Al-Saadoon and Mufdhi were arrested by British forces on suspicion of being senior members of the Ba’ath Party under Saddam’s regime and of orchestrating anti-Multi-National Force (“MNF”) violence. A subsequent Royal Military Police investigation found evidence of their involvement in the murders of two British soldiers in March 2003.  Under UN Security Council Resolution (“UNSCR”) 1483 (22 May 2003), the UN recognised the specific authorities, responsibilities, and obligations under international law of the UK and US as occupying powers. A Coalition Provisional Authority (“CPA”) was set up to govern the country. Framed under Ch VII of the Charter, 1483 called upon the CPA “to promote the welfare of the Iraqi people through the effective administration of the territory, including working towards the restoration of conditions of security and stability”. The UN declared its intention “to remain seized of the matter”.
 
UNSCR 1511 (16 October 2003) underlined the “temporary nature of the exercise by the Coalition Provisional Authority” of its responsibilities and authorised the MNF “to take all necessary measures to contribute to the maintenance of security and stability in Iraq”. On 28 June 2004 the occupation ended. Iraq reasserted its full sovereignty under UNSCR 1546 (8 June 2004). From this point the occupying powers remained in Iraq with the consent of the Iraqi authorities (host nation), reflected in ensuing UN mandates, extended until 31 December 2008. On 20 May 2006 the Government of National Unity came into being. This meant that, at the request of the Iraqi authorities, the MNF national contingent could retain criminal detainees in its facilities. On 21 May 2006 the two men were reclassified as criminal detainees, and thereafter held by the British military authorities, at the request of the Iraqis, pending their trial by the Iraqi court.
 
The legal proceedings
 
On 27 December 2007 the Iraqi High Tribunal (“IHT”) formally requested the transfer of the men into its custody, which occurred on 31 December 2008, as the mandate ran out and UK forces had no lawful basis for holding onto them. The two men subsequently brought unsuccessful judicial review proceedings in the UK High Court alleging that trial before an Iraqi court might result in the death penalty if convicted (see [2008] EWHC 3098 (Admin)). Citing R (on the application of Al-Skeini) v Secretary of State for Defence [2007] UKHL 26, they sought to rely on rights under the European Convention on Human Rights (“ECHR”) which they considered they acquired by reason of their arrest by British forces and detention in a British military establishment. They also argued that there were substantial grounds for believing they would be at real risk of a flagrantly unfair trial, of the death penalty, and of torture or inhuman or degrading treatment while in custody.

Their appeal was refused by the Court of Appeal ([2009] EWCA Civ 7). The Court of Appeal said it was obliged to have regard to the UK’s obligation, arising under international law, to transfer the appellants to the custody of the IHT in deciding whether to grant relief for the purpose of upholding Convention rights. Laws LJ stated (at [33] and [36]), “the United Kingdom was not before 31 December 2008 exercising any power or jurisdiction in relation to the appellants 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 31 December 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.” Moreover, the transfer of the appellants for trial by the IHT would not constitute so grave a denial of justice as to involve a flagrant breach of their rights under art 6 of the ECHR.

The ECtHR took a different view, holding that the two men were arrested and detained by UK forces, therefore the UK had a paramount obligation to ensure their arrest and detention did not end in a manner which breached their rights. The court briefly considered R (Al Jedda) v Secretary of State for Defence [2008] 1 AC 332 where Lord Rodger—following Behrami v France, Saramati v France (App nos 71412/01 and 78166/01)—considered the UN mandate prevailed over the UK’s obligations under art 5(1) of the ECHR. Lord Bingham distinguished Behrami and Saramati, and considered the multinational force in Iraq was not established at the behest of, nor was mandated by, the UN. In this collision of the tectonic plates of ECHR and competing international law, he said (at [39]): “There is in my opinion only one way in which they can be reconciled: by ruling that the UK may lawfully, where it is necessary for imperative reasons of security, exercise the power to detain authorised by UNSCR 1546 and successive resolutions, but must ensure that the detainee’s rights under article 5 are not infringed to any greater extent than is inherent in such detention.”

In the ECtHR Sir Nicholas Bratza, in a partly dissenting opinion, was not persuaded that the ECtHR’s caselaw had any direct application to the special circumstances in the present case where the two men were held by a contingent of a multinational force on foreign sovereign territory, whose mandate to remain on that territory had expired and who had no continuing power or authority to detain or remove from the territory nationals of the foreign sovereign State concerned.

The future

Hopefully, the case will be examined by the Grand Chamber who may show a better understanding of the difficulties placed upon small, under-funded armed forces carrying out extremely difficult and dangerous nation building tasks. The implications of this ruling are that nations may be reluctant to arrest and detain anyone, even at the request of the resurgent host nation, for fear of being saddled with a responsibility they never wanted, but undertook to assist the host nation. It places under great strain the cooperation needed between coalition forces, especially where one or other coalition members still has the death penalty, and it potentially undermines the efforts of nations to comply with the will of the UN in assisting resurgent nations to re-construct their institutions of law and order and government.

Anthony Paphiti is a military law consultant

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