European Court case underscores responsibilities of UK army to respect human rights of detainees : case of Al Sadoon and Mufdhi v The United Kingdom (Application no.61498/08)

The European Court of Human Rights’ decision in this case became final – the Court determined that the UK Government breached the European Convention when UK army officials in Basra transferred two Iraqis, Faisal Al Saadoon and Khalaf Mufdhi to Iraqi custody where they faced a real risk of death by hanging.

The two Iraqi men were detained and held without charge in Basra by the British army in 2003, and after some three years were alleged to have been involved in the deaths of two British soldiers; in May 2006 they were charged with murder and war crimes and were due to be transferred to the custody of the Iraqi High Tribunal.

The UK army then handed Al Saadoon and Mufdhi over to the Iraqi authorities despite an injunction issued by the European Court telling them not to do so. This case is important because it underscores that the UK had far-reaching obligations to the two men even though the UK was holding them in Iraq and the transfer was to Iraqi officials – if there is a real risk of torture and/or other prohibited ill-treatment, the European Court is clear that there can be no transfer.

This case sends an important message to all states carrying out military action in foreign countries: if you are detaining individuals, not only must you ensure that detention conditions and the treatment meted out accords with applicable human rights standards, in addition, you cannot transfer detainees to the care of the local authorities unless it is clear that they do not face a real risk of torture and/or other prohibited ill-treatment.