The European Court of Human Rights has declared that a decision in the cases of two Iraqi murder suspects in UK custody in Iraq is now final and will not be reconsidered. The court has effectively prohibited the death penalty under the European Convention on Human Rights, despite Article 2 (the right to life) appearing to expressly allow it.
The judgment is an important restatement of the prohibition against the death penalty which has been agreed to by all Council of Europe states. However, the reasoning of the court in prohibiting it under the European Convention, founded on the men’s “mental suffering caused by the fear of execution amounting to inhuman treatment”, rather than a prohibition against states carrying out the death penalty itself, may generate difficulties in future cases relating to inhuman and degrading treatment.
This summary draws from the court’s press release. Two Iraqi nationals (‘the applicants’), who were accused of involvement in the murder of two British soldiers shortly after the invasion of Iraq in 2003, complained that their transfer by the British authorities into Iraqi custody put them at real risk of execution by hanging.
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 certain war crimes. Interestingly, the death penalty was only fully outlawed in the UK since 1998, although no execution has taken place in the UK since 1964.
In October 2004 the UK’s Royal Military Police concluded that the applicants had been involved in the deaths of two British soldiers, Staff Sergeant Cullingworth and Sapper Allsopp, ambushed and murdered in southern Iraq on 23 March 2003.
The Basra Criminal Court decided that the allegations constituted war crimes and therefore fell within the jurisdiction of the Iraqi High Tribunal (“IHT”: a court set up under Iraqi national law, to try Iraqi nationals or residents accused of genocide, crimes against humanity and war crimes allegedly committed during the period 17 July 1968 to 1 May 2003).
In June 2008, the men brought judicial review proceedings in England challenging, among other things, the legality of their transfer. The case reached the Court of Appeal, which ruled that although the applicants were within the UK’s jurisdiction whilst in Basrah, under public international law the UK was obliged to surrender the applicants unless there was clear evidence that the receiving State intended to subject them to treatment so harsh as to constitute a crime against humanity. It found no substantial grounds for believing there to be such a risk.
Leave to appeal to the Supreme Court was refused. The Court of Appeal found that whilst there was a real risk that the men would be executed if transferred, nevertheless the UK was not exercising jurisdiction because it was detaining the applicants on Iraqi territory and on the orders of the Iraqi courts.
European Court of Human Rights
The men took the case to the European Court of Human Rights, and succeeded there where they had failed in the UK. The UK argued that since Iraq was a sovereign state, it would be a breach of Iraqi sovereignty to not transfer the men.
The Court emphasised that 60 years ago, when the Convention was drafted, the death penalty had not been considered to violate international standards. However, there had been a subsequent evolution towards its complete abolition, in law and in practice, within all the Council of Europe Member States. Two Protocols to the Convention had thus entered into force, abolishing the death penalty in time of war (Protocol 6) and in all circumstances (Protocol 13, which replaced Protocol 6), and the United Kingdom had ratified them both (see this Council of Europe factsheet).
The court made three main findings. First, the decision to refer the men to Iraqi custody in December 2005, after the reintroduction of the death penalty, without receiving any binding assurance that they would not be subjected to the death penalty “”put them at real risk of being executed”.
Secondly, it was not open to the UK to enter into an agreement with another State which conflicted with its obligations under Articles 2 (right to life) and 3 (anti-torture / inhuman treatment) of the Convention and Article 1 of Protocol No. 13 (abolishing death penalty).
Finally, the UK failed to establish that there were other means available by which to safeguard the applicants’ fundamental human rights, that is no practical means of safeguarding the men’s rights whilst still respecting Iraqi sovereignty.
The men were awarded €40,000 for costs but no compensation (despite asking for it).
The reasoning of the court amounted to a workaround. Article 2 of the European Convention provides that “No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law”. It was drafted in this way because when the Convention was introduced, most states still carried out the death penalty.
However, since the adoption of Protocol 6 – outlawing the death penalty – by the Council of Europe states, it has been argued that the second sentence, allowing the death penalty, has been abrogated. In this case, the court accepted that “there has subsequently been an evolution towards the complete de facto and de jure abolition of the death penalty within the Member States of the Council of Europe ” (para 116). So although the convention technically allows for it, the death penalty has, in effect, been outlawed.
The court did not go as far as to conclude that the death penalty constituted a violation of Article 2. Rather, it found that the death penalty constituted “inhuman and degrading punishment” which is outlawed by Article 3, as “it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them” (para 121).
This reasoning arises from the case of Ocalan v Turkey, in which the court used Article 3 effectively as a means of getting round the clear wording of Article 2, which expressly allows the death penalty in certain situations (see this post for further background). Without amending Article 2 itself, it is difficult to see how any other conclusion could have been reached, except by way of legal doublethink.
The important point is that the effect is the same. Article 3 cannot be breached in any circumstances: it is unqualified, unlike, for example, the right to privacy which can be breached in certain situations for the public good. Therefore, in combination with Protocol 6 and 13 which all Council of Europe states have signed up to (all but Russia have ratified the latter), the death penalty is unlawful. This includes the UK, which in 2004 added Protocol 13 to the Human Rights Act.
There are potential problems with the court’s neat solution, however. As the PHD Studies in Human Rights Blog points out:
On close reading of its decision, however, the judges of the Chamber do not say that it is the death penalty that constitutes inhuman or degrading punishment, but rather than agony of a convicted person thinking about the penalty. I remain very troubled by this approach to the issue. Many prisoners suffer while thinking about their penalties, even relatively minor ones. It seems inherent in the idea of punishment. It should be the death penalty itself, and not thinking about it, that constitutes a violation of the Convention.
So the effect of the workaround may be to generate logical problems in future cases. What if, for example, scientific evidence were produced by a convict serving a life sentence in jail to the effect that their punishment had an equivalent psychological effect – that is, aroused similar feelings of anguish and suffering – as if they had been sentenced to death? And what if someone subjected to the death penalty can be shown to welcome it, and therefore not cross the “suffering” threshold? In the age of suicide bombers, this is not inconceivable.
Since an absolute bar had been placed on the death penalty as a result of the feelings of anguish it produces in those waiting to receive it, surely causing a person to suffer an equivalent level of anguish would be unlawful too. But this ultimately amounts to an objective appraisal of “anguish”, and in reality the court has made a value judgment based on opposition to the punishment, not the anguish it produces. It is shame that this judgment has to be put in terms of suffering, rather than saying that the death penalty is straightforwardly wrong.
This case represents something of a victory for the men, although according to their solicitors, they remain in custody and continue to be fearful of being executed. In the meantime, the European Court of Human Rights has clearly restated the prohibition against the death penalty for European states, not just within their borders, but also within territories they control.
Moreover, just as it is unlawful for the UK to transfer a prisoner from the UK to a state where they will be at a real risk of suffering inhuman and degrading treatment (see this post), it is also unlawful to do the same from territories it controls abroad, whether or not this amounts to a restriction on the sovereignty of other states.
Update, 18 Oct 2010: Official confirmation that the case will not be referred to the Grand Chamber can be found here.
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