CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 30 juin 2009

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A.   The occupation of Iraq 2.     On 20 March 2003 a coalition of armed forces (the Multi-National Force or “MNF”), led by the United States of America with a large force from the United Kingdom and smaller contingents from Australia and Poland, commenced the invasion of Iraq. 3.     Major combat operations in Iraq ceased at the beginning of May 2003. The United States and the United Kingdom thereafter became occupying powers within the meaning of Section III of the Hague Regulations on the Laws and Customs of War on Land, 1949 and the Fourth Geneva Convention on the Protection of Civilians in Time of War, 1949. Article 27 of the Fourth Geneva Convention placed an obligation on the United Kingdom, within the area it occupied, to protect the civilian population against all acts of violence and Articles 41, 42 and 78 gave the United Kingdom the power, inter alia, to intern Iraqi civilians where necessary for imperative reasons of security. 4.     The Coalition Provisional Authority (CPA) was created by the Government of the United States as a “caretaker administration” until an Iraqi government could be established, with power, inter alia, to issue legislation. On 13 May 2003, the United States Secretary for Defence, Donald Rumsfeld, issued a memorandum formally appointing Ambassador Paul Bremer as Administrator of the CPA with responsibility for the temporary governance of Iraq. The CPA administration was divided into regional areas. CPA South remained under United Kingdom responsibility and control, with a United Kingdom regional coordinator. It covered the southernmost four of Iraq’s eighteen provinces, each having a governorate coordinator. United Kingdom troops were deployed in the same area. The United Kingdom was represented at CPA headquarters through the office of the United Kingdom Special Representative. Although the United Kingdom special representative and his office sought to influence CPA policy and decisions, he had no formal decision-making power within the CPA. All the CPA’s administrative and legislative decisions were taken by Ambassador Bremer. 5.     CPA Regulation No. 1 gave the CPA authority to issue binding regulations and orders and memoranda in relation to the interpretation and application of any regulation and order.   CPA Order No. 7, dated 9 June 2003, modified the Iraqi Penal Code to remove certain offences and, in section 3(1), suspended the operation of the death penalty in Iraq.   CPA Memorandum No. 3 of 18 June 2003 was entitled “Criminal Procedures” and contained inter alia the following provisions: “ Section 6: Criminal Detentions (1) Consistent with the Fourth Geneva Convention, the following standards will apply to all persons who are detained by Coalition Forces solely in relation to allegations of criminal acts and who are not security internees (hereinafter ‘criminal detainees’):   (a) Upon the initial induction into a Coalition Force detention centre a criminal detainee shall be apprised of his rights to remain silent and to consult an attorney. (b) A criminal detainee suspected of a felony offence may consult an attorney 72 hours after induction into a Coalition Force detention centre. (c) A criminal detainee shall be promptly informed, in writing, in a language which they understand, of the particulars of the charges preferred against them. (d) A criminal detainee shall be brought before a judicial officer as rapidly as possible and in no instance later than 90 days from the date of induction into a Coalition Force detention centre.   (e) Access to detainees shall be granted to official delegates of the international Committee of the Red Cross (ICRC). ...   (2) Where any criminal detainee held by Coalition Forces is subsequently transferred to an Iraqi Court, a failure to comply with these procedures shall not constitute grounds for any legal remedy or negation of process, but any period spent in detention awaiting trial or punishment shall be deducted from any period of imprisonment imposed. Section 7: Coalition Force Security Internee Process (1) Consistent with the Fourth Geneva Convention, the following standards will apply to all persons who are detained by Coalition Forces where necessary for imperative reasons of security (hereinafter ‘security internees’): (a) In accordance with Article 78 of the Fourth Geneva Convention, Coalition Forces shall, with the least possible delay, afford persons held as security internees the right of appeal against the decision to intern them. (b) The decision to intern a person shall be reviewed not later than six months from the date of induction into an internment facility by a competent body established for the purpose by Coalition Forces. (c) The operation, condition and standards of any internment facility established by Coalition Forces shall be in accordance with Section IV of the Fourth Geneva Convention. (d) Access to internees shall be granted to official delegates of the International Committee of the Red Cross (ICRC). ... (e) If a person is subsequently determined to be a criminal detainee following tribunal proceedings concerning his or her status, or following the commission of a crime while in internment, the period that person has spent in internment will not count with respect to the period set out in Section 6(1)(d) herein. (f) Where any security internee held by Coalition Forces is subsequently transferred to an Iraqi Court, a failure to comply with these proceedings shall not constitute grounds for any legal remedy, but may be considered in mitigation in sentence.” 6.     The invasion had gone ahead after the abandonment of the efforts by the coalition States to obtain the backing of a United Nations Security Council (UNSC) resolution. Resolution 1483 was adopted by the UNSC on 22 May 2003. Acting under Chapter VII of the UN Charter, the UNSC called on the coalition of occupying States, consistently with the UN Charter and other relevant international law, to promote the welfare of the Iraqi people and work towards the restoration of conditions of stability and security. The UNSC further requested the Secretary General to appoint a Special Representative in Iraq: he was to report regularly to the UNSC on his activities under the resolution, which were to co-ordinate the activities of the UN and other international agencies engaged in post-conflict processes and humanitarian assistance, in a number of specified ways including the protection of human rights. 7.     In July 2003 the Governing Council of Iraq was established, which the CPA was to consult on all matters concerning the temporary governance of Iraq. 8.     UNSC Resolution 1511, adopted on 16   October 2003, underscored the temporary nature of the CPA’s role; determined that the Governing Council of Iraq and its ministers were the principal bodies of the Iraqi interim administration which embodied the sovereignty of the State of Iraq during the transitional period until an internationally recognised, representative government was established and assumed the responsibilities of the CPA; called upon the CPA to return governing responsibilities and authorities to the people of Iraq as soon as practicable; and invited the Governing Council of Iraq to produce a timetable and programme for the drafting of a new constitution for Iraq and for the holding of democratic elections under that constitution. It authorised the MNF to take all necessary measures to contribute to the maintenance of security and stability in Iraq, and provided that the requirements and mission of the MNF would be reviewed within one year of the date of the resolution and that in any case the mandate of the MNF was to expire upon the completion of the political process to which the resolution had previously referred. 9.     Pursuant to UNSCR 1483 (see paragraph 6 above), provision was made by CPA Order No. 48, of 10 December 2003, for the setting up of an Iraqi Tribunal to try members of the previous Iraqi regime alleged to be responsible for crimes and atrocities. In the Order, the CPA delegated to the Interim Government the power: “to establish an Iraqi Special Tribunal (the ‘Tribunal’ [subsequently known as the ‘Iraq High Tribunal’ or ‘IHT’]) to try Iraqi nationals or residents of Iraq accused of genocide, crimes against humanity, war crimes or violations of certain Iraqi laws, by promulgating a statute, the proposed provisions of which have been discussed extensively between the Governing Council and the CPA ...” 10.     On 8 March 2004 the Governing Council of Iraq promulgated the Law of Administration for the State of Iraq for the Transitional Period (known as the “Transitional Administrative Law”). This provided a temporary legal framework for the administration of Iraq for the transitional period which was due to commence by 30 June 2004 with the establishment of an interim Iraqi government (“the Interim Government”) and the dissolution of the CPA. Article 26 of the Transitional Administrative Law made provision for the laws in force in Iraq at the time of that change to continue in effect unless rescinded or amended by the Interim Government, and specifically for the laws, regulations, orders and directives issued by the CPA to remain in force until rescinded or amended by legislation duly enacted and having the force of law. 11.     Further provision for the new regime was made in UNSC Resolution 1546, adopted on 8 June 2004. The Resolution endorsed “the formation of a sovereign Interim Government of Iraq ... which will assume full responsibility and authority by 30 June 2004 for governing Iraq” (article 1) and welcomed “that, also by 30 June 2004, the occupation will end and [the CPA] will cease to exist, and that Iraq will reassert its full sovereignty” (article 2). It noted that the presence of the MNF was at the request of the incoming Interim Government (as set out in correspondence between the Iraqi Prime Minister and the United States Secretary of State annexed to the resolution) and reaffirmed the authorisation for the MNF to remain in Iraq, with authority to take all necessary measures to contribute to the maintenance of security and stability there. Provision was again made for the mandate for the MNF to be reviewed within 12 months and to expire upon completion of the political process previously referred to. 12.     A revised version of CPA Memorandum No. 3 was issued on 27 June 2004 (“CPA Memorandum No. 3 (Revised)”) which amended the law and procedure in relation to detention. It provided: “ Section 1: Purpose (1) This Memorandum implements CPA Order No. 7 by establishing procedures for applying criminal law in Iraq, recognizing that effective administration of justice must consider: (a) the continuing involvement of the Multinational Force (MNF) in providing critical support to some aspects of the administration of justice; (b) the need to transition from this support; (c) the need to modify aspects of Iraqi law that violate fundamental standards of human rights; (d) the ongoing process of security internee management in accordance with the relevant and appropriate standards set out in the Fourth Geneva Convention which shall be applied by the MNF as a matter of policy in accordance with its mandate. ... Section 5: Criminal Detentions (1) A national contingent of the MNF shall have the right to apprehend persons who are suspected of having committed criminal acts and are not considered security internees (hereinafter ‘criminal detainees’) who shall be handed over to Iraqi authorities as soon as reasonably practicable. A national contingent of the MNF may retain criminal detainees in facilities that it maintains at the request of the appropriate Iraqi authorities based on security or capacity considerations. Where such criminal detainees are retained in the detention facilities of a national contingent of the MNF the following standards will apply: (a) Upon the initial induction into the detention centre a criminal detainee shall be apprised of his rights to remain silent and to consult an attorney by the authority serving an arrest warrant. (b) A criminal detainee suspected of a felony offence may consult an attorney 72 hours after induction into the detention centre. (c) A criminal detainee shall be promptly informed, in writing, in a language which they understand, of the particulars of the charges preferred against them by the authority serving an arrest warrant. (d) A criminal detainee shall be brought before a judicial officer as rapidly as possible and in no instance later than 90 days from the date of induction into the detention centre. (e) Access to detainees shall be granted to the Iraqi Prisons and detainee Ombudsman (hereinafter ‘the Ombudsman’). ...   (f) Access to detainees shall be granted to official delegates of the international Committee of the Red Cross (ICRC). ...   (2) Where any criminal detainee held by a national contingent of the MNF is subsequently transferred to an Iraqi Court, a failure to comply with these procedures shall not constitute grounds for any legal remedy or negation of process, but any period spent in detention awaiting trial or punishment shall be deducted from any period of imprisonment imposed.     Section 6: MNF Security Internee Process (1) Any person who is detained by a national contingent of the MNF for imperative reasons of security in accordance with the mandate set out in UNSCR 1546 (hereinafter ‘security internees’) shall, if he is held for a period longer than 72 hours, be entitled to have a review of the decision to intern him. (2) The review must take place with the least possible delay and in any case must be held no later than 7 days after the date of induction into an internment facility. (3) Further reviews of the continued detention of any security internee shall be conducted on a regular basis but in any case not later than six months from the date of induction into an internment facility. (4) The operation, condition and standards of any internment facility established by the MNF shall be in accordance with Section IV of the Fourth Geneva Convention. (5) security internees who are placed in internment after 30 June 2004, must in all cases only be held for so long as the imperative reasons of security in relation to the internee exist and in any case must be either released from internment or transferred to the Iraqi criminal jurisdiction not later than 18 months from the date of induction into an MNF internment facility. Any person under the age of 18 interned at any time shall in all cases be released not later than 12 months after the initial date of internment. ... (9) If a person is subsequently determined to be a criminal detainee following a review of his or her status, or following the commission of a crime while in internment, the period that person has spent in internment will not count with respect to the period set out in Section 5(2) herein ...” 13.     CPA Order No. 17 (Revised), dated 27 June 2004, dealt with the status of MNF personnel in Iraq. Section 2 established the immunity from Iraqi legal process of MNF personnel, as follows: “ Section 2: Iraqi Legal Process (1) Unless provided otherwise herein, the MNF, the CPA, Foreign Liaison Missions, their Personnel, property, funds and assets, and all International Consultants shall be immune from Iraqi legal process. (2) All MNF, CPA and Foreign Liaison Mission Personnel, and International Consultants shall respect the Iraqi laws relevant to those Personnel and Consultants in Iraq including the Regulations, Orders, Memoranda and Public Notices issued by the Administrator of the CPA. (3) All MNF, CPA and Foreign Liaison Mission Personnel, and International Consultants shall be subject to the exclusive jurisdiction of their Sending States. They shall be immune from any form of arrest or detention other than by persons acting on behalf of their Sending States, except that nothing in this provision shall prohibit MNF Personnel from preventing acts of serious misconduct by the above-mentioned Personnel or Consultants, or otherwise temporarily detaining any such Personnel or Consultants who pose a risk of injury to themselves or others, pending expeditious turnover to the appropriate authorities of the Sending State. In all such circumstances, the appropriate senior representative of the detained person’s Sending State in Iraq shall be notified immediately. (4) The Sending States of MNF Personnel shall have the right to exercise within Iraq any criminal and disciplinary jurisdiction conferred on them by the law of that Sending State over all persons subject to the military law of that Sending State. ...” Section 9(1) of the Order provided for the inviolability of MNF facilities, as follows: “The MNF may use without cost such areas for headquarters, camps or other premises as may be necessary for the conduct of the operational and administrative activities of the MNF. All premises currently used by the MNF shall continue to be used by it without hindrance for the duration of this Order, unless other mutually agreed arrangements are entered into between the MNF and the Government. While any areas on which such headquarters, camps or other premises are located remain Iraqi territory, they shall be inviolable and subject to the exclusive control and authority of the MNF, including with respect to entry and exit of all personnel. The MNF shall be guaranteed unimpeded access to such MNF premises. Where MNF Personnel are co-located with military personnel of Iraq, permanent, direct and immediate access for the MNF to those premises shall be guaranteed.” B.   The transfer of authority from the CPA to the Iraqi Government and the United Kingdom-Iraq Memorandum of Understanding 14.     On 28 June 2004 the occupation came to an end when full authority was transferred from the CPA to the Interim Government and the CPA ceased to exist. Subsequently the MNF, including the British forces forming part of it, remained in Iraq pursuant to requests by the Iraqi Government and authorisations from the UNSC. In accordance with Article 26 of the Transitional Administrative Law (see paragraph 10 above), the above CPA Memorandum and Order remained in force. 15.     In August 2004 the Iraqi National Assembly reintroduced the death penalty to the Iraqi Penal Code in respect of certain violent crimes, including murder, and drug trafficking. In a number of statements the United Kingdom authorities made it clear that the United Kingdom was opposed to the death penalty in all circumstances and called on Iraq to abolish it. 16.     On 9 October 2005 the Iraqi National Assembly established the Iraqi High Tribunal (“IHT”). The IHT was given jurisdiction over a list of offences, including war crimes, committed in Iraq or elsewhere during the period 17 July 1968 to 1 May 2003. Article 19 of its Statute provided for a number of fair trial guarantees for accused persons. Article 24 provided that the IHT should impose the penalties prescribed by the Iraqi Penal Code. 17.     On 8 November 2004 a Memorandum of Understanding (“MoU”) regarding criminal suspects was entered into between the United Kingdom contingent of the MNF and the Ministries of Justice and Interior of Iraq (collectively referred to as “the Participants”). The preamble to the MoU recited the authority of the United Kingdom contingent of the MNF, “in accordance with the mandate conferred by UNSCR 1546”, to intern persons for imperative reasons of security, and the power of national contingents of the MNF, “in accordance with CPA Memorandum No. 3 (Revised)”, to apprehend persons who were suspected of committing criminal acts. It also stated that “[w]hereas Iraq is developing its own custodial capacity with the aim of being able to confine all criminal suspects in its own facilities, it may, in the meantime, request [the United Kingdom contingent of the MNF] to confine persons who are suspected of having committed criminal acts in safe and secure detention facilities, subject to security and capacity considerations”. The substantive provisions of the MoU included the following: “ Section 1: Purpose and Scope This Memorandum of Understanding (MoU) sets out the authorities and responsibilities in relation to criminal suspects. For the purpose of this MOU, ‘criminal suspects’ are: ...   (c) individuals who are suspected of having committed criminal acts who are held at the request of the Iraqi authorities. Section 2: Authorities and Responsibilities Generally 1. The Interim Iraqi Government (and any successor) has legal authority over all criminal suspects who have been ordered to stand trial and who are waiting trial in the physical custody of [the United Kingdom contingent of the MNF] in accordance with the terms of this Memorandum of Understanding (MoU). 2. The [United Kingdom contingent of the MNF] has a discretion whether to accept any particular criminal suspect into its physical custody and whether to continue to provide custody for a suspect who is in its physical custody at the time this MoU comes into operation or who, at any time in the future, comes into its custody. ... Section 3: Authorities and Responsibilities in relation to individual criminal suspects 1. In relation to any criminal suspect being held in the physical custody of the [United Kingdom contingent of the MNF], the Ministry of Justice will: (a) provide [the United Kingdom contingent of the MNF] with a written request for his delivery up to attend a court appearance or for any other purpose connected with the criminal process and will give as much advance notice of the proposed date when the presence of the suspect is required as is practicable. ... (d) ensure that any criminal proceedings commenced against a criminal suspect progress without undue delay. 2. In relation to any criminal suspect being held in the physical custody of [the United Kingdom contingent of the MNF], [the United Kingdom contingent of the MNF]: (a) will provide humane treatment and will not subject any criminal suspect to torture or to cruel, inhuman or degrading treatment or punishment; ... (c) will take appropriate steps to ensure that the conditions of custody meet the standards set out in CPA Memoranda Nos.   2 and 3; ... 3. In relation to any criminal suspect apprehended by [the United Kingdom contingent of the MNF] and handed over to the Iraqi authorities as soon as reasonably practicable, in accordance with section 5 of the CPA Memorandum No. 3 (Revised), the Ministry of Justice and the Ministry of the Interior, as the case may be: (a) will provide humane treatment and will not subject any criminal suspect to torture or to cruel, inhuman or degrading treatment or punishment; and (b) will hold the criminal suspect in accordance with Iraqi law. 4. In relation to any criminal suspect transferred to the Ministry of the Interior or the Ministry of Justice by [the United Kingdom contingent of the MNF] from its detention facilities, the Ministry of Justice and the Ministry of the Interior, as the case may be, will: (a) inform [the United Kingdom contingent of the MNF] before releasing any individual and will comply with any request by [the United Kingdom contingent of the MNF] that [the United Kingdom contingent of the MNF] should reassume custody if, (i) the individual is wanted for prosecution by any state that has contributed forces to the MNF for breaches of the laws and customs of war, or (ii) the internment of the individual is necessary for imperative reasons of security, in which case [the United Kingdom contingent of the MNF] will assume custody of that individual after consultation between the Participants to reach an agreed solution. ... (c) provide an assurance that during any temporary periods when a suspect is in the hands of the Iraqi authorities whether at the [the United Kingdom contingent of the MNF]’s detention facility or elsewhere and at any time following the transfer of a suspect to Iraqi facilities, (i) the suspect will be treated humanely and will not be subject to torture or to cruel, inhuman or degrading treatment or punishment; and (ii) the requirements of CPA Orders with respect to co-operation with and reasonable access to be provided to the Iraqi Ombudsman for Penal and Detention Matters and the International Committee of the Red Cross will be adhered to. 5. If [the United Kingdom contingent of the MNF] decides that it is no longer prepared to provide custody facilities for a particular suspect, it shall give notice of this decision to the Ministry of Justice as soon as possible to enable the Ministry of Justice to make other arrangements for the custody of that suspect if it so wishes. The Ministry of Justice will then notify [the United Kingdom contingent of the MNF] of the arrangements it has made or alternatively will indicate that the suspect should be released. [The United Kingdom contingent of the MNF] will then use its best endeavours to enable any such alternative arrangements to be put in place.” 18.     The last relevant UNSC Resolution, No. 1790 of 18 December 2007, extended the MNF’s mandate to remain, for the last time, until 31 December 2008. Annexed to the Resolution was a letter from the Iraqi Prime Minister which stated, inter alia : “The Government of Iraq requests that the Security Council should consider extending the mandate of MNF-1 in the light of Iraq’s achievements over the past few years, namely, the strengthened capacity of its Army and security forces and its significant successes in the security, political and economic spheres. A review of the role and authority of MNF-1 will thus be required in order to strike a balance between, on the one hand, the need to extend, one last time, the mandate of the force and, on the other hand, progress made by Iraq in the area of security. In this regard, it is important for Iraq to be treated as an independent and fully sovereign State and, in seeking the aforementioned balance, the following objectives should be highlighted: ... 4. The Government of Iraq will be responsible for arrest, detention and imprisonment tasks. When those tasks are carried out by MNF-1, there will be maximum levels of coordination, cooperation and understanding with the Government of Iraq”. C.   The legal basis for the presence of United Kingdom armed forces in Iraq from 1 January 2009 19.     The Iraqi Council of Ministers Resolution 439/2008, passed on 16   December 2008, stated as follows: “Article 1: The forces of the United Kingdom and Northern Ireland are permitted to stay in Iraq to complete the tasks they are given, and for these tasks to end no later than the 31 st of May 2009 and to fully withdraw from Iraq no later than the 31 st July 2009. ... Article 4: (a) Members of the forces referred to in Articles 1 and 2 of the Law and members of the Ministries of Defence of the countries to which those aforementioned forces belong, who are working with those forces, shall be subject to the jurisdiction of Iraq with the exception of crimes committed by them while on duty which are not committed with intent or do not arise from gross negligence, and with the exception of those committed by them inside agreed facilities and military installations used by them, in which case they shall be subject to the jurisdiction of the country to which they belong. ... (c) An accused member of the forces or the Ministry of Defence of the countries referred to in Articles 1 and 2 of this Law, shall be held in the custody of the authorities of the country to which the accused belongs. These authorities should make available the accused to the Iraqi authorities for the purposes of investigation and trial. ... Article 6: The task and activities of the forces referred to in Articles 1 and 2 of this Law and their facilities and military installations during their temporary presence in Iraq are to be specified by the Government of Iraq with the agreement of the governments and parties concerned, providing that these troops do not carry out any operations or military activities within Iraqi land, airspace and waters without prior approval from the Government of Iraq.” 20.     The Iraqi Council of Ministers’ Resolution 50/2008 of 23 December 2008, which took effect from 1 January 2009, authorised the Council of Ministers to take all necessary measures to achieve the withdrawal of forces no later than 31 July 2009 and to regulate their activities in accordance with Resolution 439/2008 in the meantime. It also provided that CPA Order No. 17 (Revised) (see paragraph 13 above) should be suspended until repealed according to standard procedure. 21.     On 30 December 2008 the United Kingdom and Iraqi Governments signed a further Memorandum of Understanding (“the second MoU”), which came into effect on 1 January 2009. It recorded that British forces would complete specified tasks, mainly confined to training and advising Iraqi security forces, no later than 31 May 2009 and withdraw fully no later than 31 July 2009. Paragraph 5 of the second MoU provided that the United Kingdom and Iraqi forces would waive all claims against each other arising out of the specified tasks. The main facilities and military installations to be used by the United Kingdom forces during their temporary presence in Iraq were identified in paragraph 3, but the second MoU did not provide for the inviolability of those premises. D.   Protocol No. 13 to the Convention 22.     Protocol No. 13 to the Convention, which prohibits the death penalty in all circumstances, was opened for signature on 3 May 2002 and entered into force on 1 July 2003. It was signed by the United Kingdom on 3   May 2002, ratified on 10   October 2003 and entered into force in respect of that State on 1   February 2004. E.   The applicants’ arrest and detention 23.     The applicants are Sunni Muslims from southern Iraq. The first applicant joined the Ba’ath Party in 1969, aged 17. In 1996 he became the Branch Member of the Al-Zubair branch of the Ba’ath Party (reporting to the second applicant, the General Secretary of the Al-Zubair branch). The second applicant joined the Ba’ath Party in 1968, aged 18. In February 2001 he became the General Secretary of the Al-Zubair branch, the highest rank in the province of Al-Zubair. 24.     On or around 23 March 2003, two British servicemen, Staff Sergeant Cullingworth and Sapper Allsopp, were ambushed in Al-Zubair, southern Iraq, by Iraqi militia forces. Their bodies were found on 10 April 2003 buried in the grounds of a government building in Al-Zubair. They were found to have been killed by multiple gunshot wounds. 25.     The first applicant was arrested on 30 April 2003 and the second applicant was arrested on 21 November 2003, by British forces in Basra. They were initially detained at a facility run by American forces known as “Camp Bucca”. On 15 December 2003 they were transferred to a British-run facility in Iraq known as the “Divisional Temporary Detention Facility”. On 20 April 2007 they were transferred to another British detention facility in Iraq, the “Divisional Internment Facility”, where they remained until 31   December 2008. 26.     The applicants were initially classified as “security internees”. Their notices of internment stated that they were suspected of being senior members of the Ba’ath Party under the former regime and of orchestrating anti-MNF violence by former regime elements, and that it was believed that if they were released they would represent an imperative threat to security. Between March 2003 and October 2004 the Special Investigations Branch of the United Kingdom’s Royal Military Police conducted an investigation into the deaths of Staff Sergeant Cullingworth and Sapper Allsopp and concluded that the strength of the evidence against the applicants warranted referral of the case to the Iraqi authorities. F.   The referral of the applicants’ cases to the Iraqi courts 27.     On 16 December 2005, the cases against the applicants concerning the deaths of Staff Sergeant Cullingworth and Sapper Allsopp were formally referred by the United Kingdom contingent of the MNF to the Chief Investigative Judge of the Central Criminal Court of Iraq. The cases were subsequently transferred to the Basra Criminal Court and on 12   April 2006 a British officer attended that court to make a statement of complaint in respect of the killing of the two soldiers. 28.     On 18 May 2006, the applicants appeared before the Special Investigative Panel of the Basra Criminal Court to give evidence in response to the complaint. The court issued arrest warrants under the Iraqi Penal Code and made an order authorising the applicants’ continued detention by the United Kingdom contingent of the MNF. On 21 May 2006 the United Kingdom authorities decided to re-classify the applicants from “security internees” to “criminal detainees”. 29.     After an initial investigation, the Basra Criminal Court decided that, since the alleged offences constituted war crimes, the applicants’ cases should be transferred to the IHT (see paragraph 16 above) and the IHT accepted that it had jurisdiction. The applicants twice appealed against the decision to transfer their cases to the IHT but the Basra Criminal Court in its appellate capacity dismissed the first appeal on 27   November 2006 and the Federal Appeal Court in Basra dismissed the second appeal on 16 May 2007. 30.     The IHT first requested that the applicants be transferred into its custody on 27 December 2007, and repeated that request on several occasions until May 2008. When asked by the English Court of Appeal to clarify why the applicants were not transferred by the United Kingdom contingent of the MNF to the IHT between December 2007 and May 2008, counsel for the Government explained: “We took the view that there was then a genuine issue, because there had been no decision by any court as to whether or not there was the international law obligation that we say existed or any decision on the question of jurisdiction. That was resolved by the Divisional Court, and thereafter we have said it is not now possible for us to give that undertaking [not to transfer them].” G. The judicial review proceedings 31.     On 12 June 2008 the applicants issued judicial review proceedings in England challenging, inter alia, the legality of their proposed transfer. Shortly after proceedings were issued, the Government provided an undertaking that it would not transfer the applicants pending the determination of their claim before the English courts. 1.   The Divisional Court 32.     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. 33.     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: “... I recognised that, if possible, it would be desirable for UK forces to be in a position to continue to hold the Claimants for a period of time whilst this litigation is resolved. I therefore considered with colleagues whether it would be appropriate to raise this issue with the Iraqi negotiating team. I cannot comment in detail on sensitive inter-governmental negotiations, but the judgment was made that to introduce the issue of UK forces continuing to hold detainees, whether generally or specifically in relation to these two Claimants, risked adversely affecting the conduct and outcome of these important and urgent negotiations. Furthermore, the judgment was made that raising the issue would not in any event have resulted in any agreement with the Iraqi authorities whereby the Claimants remained in the custody of the British forces in Iraq, still less that they would agree to the removal of the Claimants from Iraq. Given the fact that the Iraqis are seeking the transfer of detainees from the US to Iraq and the fact that these two Claimants are Iraqi nationals accused of crimes within Iraq and that the Iraqi courts have repeatedly requested the transfer of these two Claimants in order to complete investigations and if appropriate try them, there was no realistic prospect of Iraq agreeing to allow them to remain within the custody of the UK. To have raised the issue would therefore have resulted in my judgment in no change in relation to the position of the Claimants, but would have risked adversely affecting the conduct and outcome of the negotiations with the Government of Iraq. ... I have considered whether there may be any other means whereby UK forces could continue to hold the claimants for a period of time beyond the end of this year pending the outcome of this litigation. Conceivably, we might ask the Government of Iraq to submit draft legislation to the CoR specifically to permit the UK to hold the Claimants indefinitely or pending the outcome of this litigation. Given the facts set out in the previous paragraph, I consider that there is no reasonable prospect that the Government of Iraq would accede to such a request. Furthermore, the process of drafting and passing such legislation would extend beyond the end of this year. And even raising the issue would in my considered opinion risk adversely affecting the passage of the legislation and finalizing of the inter-governmental arrangement. There is no likelihood in my view of the UK being able to secure any agreement from the Iraqi authorities that we may continue to hold the Claimants either indefinitely or pending the outcome of this litigation.” 34.     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   28 above). CPA Memorandum No. 3 (Revised) (see paragraph 12 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 17 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. 35.     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 65 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. 36.     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: “The overall picture which emerges is that, although initially there were deeply unsatisfactory aspects of the IHT and trial environment, which cast doubt on the ability to provide defendants with a fair trial at that time, there have been many significant improvements since then. ... To date the claimants have appeared before the Iraqi courts and have denied the allegations made against them; and there can be no complaint about the way in which the courts have dealt with them. As to the future, looking at the various points individually and cumulatively, the evidence before us falls a long way short of establishing substantial grounds for believing there to be a real risk that a trial of the claimants would involve a flagrant breach of the principles guaranteed by article 6. Thus, even if the Convention were to apply in the normal way, we would reject the claim that transfer of the claimants into the custody of the IHT would be contrary to article 6.” 37.     Next, the Divisional Court considered the evidence relating to the likelihood that the applicants would be subjected to the death penalty. It concluded: “Taking the evidence as a whole, we are satisfied that substantial grounds have been shown for believing there to be a real risk of the claimants being condemned to the death penalty and executed, contrary to protocol no. 13, if they are transferred into the custody of the IHT. In particular: (a) the penalties for the offences with which the applicants are charged include the death penalty; (b) there is clear evidence that persons convicted of such offences are liable in practice to