Conflicting International Obligations and the Risk of Torture and Unfair Trial: Critical Comments on R (Al-Saadoon and Mufdhi) v. Secretary of State for Defence and Al-Saadoon and Mufdhi v. United Kingdom

Abstract

This article reviews the decisions of UK courts in a case concerning two Iraqi detainees in British military custody who sought to restrain their transfer to Iraqi custody. The detainees claimed that the transfer would violate certain obligations owed to them by the UK under the European Convention on Human Rights (ECHR), including the prohibition on torture and the right to a fair trial. The article argues that the case presented novel and complex legal questions for resolution, including whether there was a conflict between the UK's obligations under the ECHR and its obligation to respect Iraqi sovereign jurisdiction over its own nationals on its own territory. It is concluded that important elements of the UK courts’ reasoning were less than satisfactory.