UK hands murder suspects over to Iraq

The United Kingdom has defied the European Court of Human Rights (ECHR) by handing over two Iraqi men accused of murdering British soldiers to the Iraqi authorities.

Strasbourg judges had blocked the transfer of Faisal Al-Saadoon, 56, and Khalaf Mufdhi, 58, after their lawyers claimed they would face the death penalty if convicted by the Iraqi criminal courts. But ministers said they had chosen to ignore the ruling.

Both men are accused of murdering Staff Sgt Simon Cullingworth and Spr Luke Allsopp in March 2003. The soldiers were found a month later in shallow graves outside Basra, unlawfully killed by Iraqi military intelligence, a coroner ruled. They had been ambushed, dragged from their Land Rover to a local Baath Party headquarters and then to an Iraqi intelligence base, where they were shot.

Yesterday the Defence Secretary John Hutton said the UK's Court of Appeal had already ruled on Tuesday that the men did not fall within the "jurisdiction" of the European Convention on Human Rights. "After 31 December 2008, the UK had no legal power to detain any individuals in Iraq and continued detention would be a breach of the UK's international law obligations," he argued. "The European Court of Human Rights at Strasbourg has asked the UK to retain custody in Iraq of Mr Saadoon and Mr Mufdhi when we have no legal power to do so. Compliance with Strasbourg requests would normally be a matter of course but these are exceptional circumstances."

A spokeswoman for Mr Hutton said that the Government was aware of the ECHR "instruction" when it transferred the men into Iraqi custody. The Government points out that Iraqi policemen could have walked into the UK's Basra base and seized the two men from midnight last night.

Phil Shiner, of Public Interest Lawyers, who are opposing the transfer, said government solicitors were refusing to confirm to him whether or not his clients had been physically handed over – but that if they had not been, he had obtained an order from a High Court judge which would halt a transfer. "It beggars belief that a Labour government should act in such flagrant disregard for the rule of law and to have put two fingers up to the European Court in the process," he said. "They presume my clients' guilt before it is proven. I am beginning to wonder why the relevant public servants dealing with this case appear to enjoy the prospect of my clients being hung with all the gruesome theatre that involves."

The Defence minister Bob Ainsworth told Radio 5 Live that the right course of action had been taken. "We had been put in an extraordinary position with this injunction," he said. "They were effectively asking us to do something illegal. We have no legal powers to hold these individuals. It is the right decision that they face trial in Iraq where these crimes were committed." He admitted that, "in theory", the men could face execution but added: "We don't support the death penalty – we oppose it. At the end of the day we have to accept the death penalty is not illegal in international law, it's not illegal in Iraq where the alleged crime was committed."

The pair's lawyers had earlier argued that allowing them to stand trial in Iraq would violate both the European Convention on Human Rights and the 1998 Human Rights Act.

Mr Hutton added: "We should all welcome the fact that the Iraqi courts will now be able to establish the facts and for the course of justice to be followed."