Legal Opinion: Britain must obey the rule of law over Iraqis detained without trial

Two Iraqis have been held without trial by the British Army for five years. Why is this any different from Guantanamo Bay?, asks Phil Shiner, of Public Interest Lawyers

In 2003, two Iraqis, Faisal al-Saadoon and Khalaf Mufdhi, were arrested on suspicion of involvement in the killing of two British soldiers. Both men have since been held without charge or trial in clear breach of the right to due process protected by Article 5 European Convention on Human Rights (ECHR).

Further, the British government now intends to hand over the men to the Iraqi Higher Criminal Tribunal where they will face trial for "war crimes" in respect of these killings. If convicted, they face the death penalty. Where do the legal issues raised by this case fit within the broader context of the role of international law after 9/11?

The first set of issues concerns whether there could be a lawful basis for these detentions. The House of Lords ruled in June 2007 in Al Skeini that the Human Rights Act 1998 and ECHR applied to UK detention facilities in Iraq. Thus, Article 5 provides that the men should have been charged and tried, or released. The Government maintains that it is entitled to rely on Coalition Provisional Authority (CPA) Memorandum No 3 (revised) section 5 which provides, on their case, "that a national contingent of the MNF may retain criminal detainees. . . at the request of appropriate Iraqi authorities based on security or capacity considerations". The first question to be answered is whether they were entitled at the outset to a determination as to their prisoner-of-war status pursuant to Article 5 Geneva Convention III.

If they were not to be treated as PoWs, were they internees held pursuant to the power provided by Article 78 Geneva Convention IV that allows internment "for imperative reasons of security" for up to 12 months? If they were both from the outset treated as detainees where does the lawful basis for such detention arise, particularly in the case of Al-Saadoon whose detention commenced before the CPA was established and 14 months before CPA Memorandum No 3 came into effect?

The second set of issues concerns the applicable law during the relevant periods, which are prior to, during and after the occupation of Iraq. At all times there was jurisdiction in the Al Skeini sense and thus Article 5 ECHR applied. How can the conflict be resolved between that right and, say, the power to intern pursuant to Article 78 GCIV? More importantly, can occupying powers rewrite Iraqi law by an administrative organ they have created, the CPA, so as to override international human rights standards (Article 5 ECHR and Article 9 International Covenant on Civil and Political Rights 1966) that provide for due process.

The third set of issues concerns the duties within international human rights law not to transfer those from the jurisdiction of a contracting state where there are substantial grounds for believing there to be a risk of Article 3 ECHR treatment (the absolute prohibition on torture) or to transfer to a state where the person might face the death penalty. The UK government does not accept that either duty is engaged.

This case raises issues of fundamental importance which resound beyond Iraq, and beyond the duties of the UK. For instance, if international humanitarian law applied to oust the ECHR in Iraq (and thus by implication the ICCPR in, say, Afghanistan), the applicable law does not include the protection of Article 5 ECHR/Article 9 ICCPR or the duties not to transfer if there is a risk of ill-treatment or death penalty.

The relevance of that issue to the coalition forces, including the United States, within the International Security and Assistance Force in Afghanistan is clear. How to resolve the conflict between the two bodies of law, international humanitarian law and international human rights law, is of fundamental importance in the new legal order. The case will be heard in the High Court in August 2008.

Phil Shiner, of Public Interest Lawyers, is the solicitor acting in this case