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Journal of International Criminal Justice Advance Access published online on October 29, 2009
Journal of International Criminal Justice, doi:10.1093/jicj/mqp067
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© Oxford University Press, 2009, All rights reserved. For permissions, please email: journals.permissions@oxfordjournals.org

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

Nehal C. Bhuta*

*Assistant Professor, The New School Graduate Program in International Affairs, New York; Member, Editorial Committee of the Journal. [nehal.bhuta{at}gmail.com]


  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.


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