GoJIL Vol. 1, No. 3 (2009)
When Soering Went to Iraq…: Problems of Jurisdiction, Extraterritorial Effect and Norm Conflicts in Light of the European Court of Human Rights’ Al-Saadoon Case
Cornelia Janik, Thomas Kleinlein
Abstract
In its admissibility decision in the Al-Saadoon case the ECtHR held that the United Kingdom had jurisdiction over the applicants, who had been arrested by British forces and kept in a British-run military prison in Iraq. Just before the respective mandate of the Security Council expired on 31 December 2008, the applicants were transferred to Iraqi custody at Iraqi request and thereby exposed to the risk of an unfair trial followed by capital punishment. In this respect, the case resembles the Soering case, although the applicants were, unlike Soering, not on British territory but on occupied Iraqi soil before they were handed over. This aspect raises the question of the relative importance of Iraqi sovereignty as a norm when in conflict with the UK's human rights obligations. The authors trace back the ECtHR's case law concerning the extraterritorial application of the Convention and continue to analyse the UK judgments and the ECtHR's admissibility decision in the Al-Saadoon affair in light of these cases. Furthermore they consider the doctrinal consequences of the ECHR's extraterritorial effect in cases like Soering and Al-Saadoon, where contracting parties violate guarantees of the Convention by exposing a person within their jurisdiction to a risk of a treatment contrary to these guarantees by a third state. Finally, they test the argument brought forward by the UK that not transferring the applicants would have violated Iraqi sovereignty, examining established patterns through which the ECtHR and the UK Courts have coped in the past with international law norms potentially competing with the Convention.
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