“Section 5: Criminal Detentions (1) A national continent of the MNF shall have the right to apprehend persons who are suspected of having committed criminal acts and are not considered security internees (hereinafter ‘criminal detainees’) who shall be handed over to Iraqi authorities as soon as reasonably practicable. A national contingent of the MNF may retain criminal detainees in facilities that it maintains at the request of the appropriate Iraqi authorities based on security or capacity considerations. Where such criminal detainees are retained in the detention facilities of a national contingent of the MNF the following standards will apply …. (2) Where any criminal detainee held by a national contingent of the MNF is subsequently transferred to an Iraqi Court, a failure to comply with these procedures shall not constitute grounds for any legal remedy or negation of process, but any period spent in detention awaiting trial or punishment shall be deducted from any period of imprisonment imposed. Section 6: MNF Security Internee Process (1) Any person who is detained by a national contingent of the MNF for imperative reasons of security in accordance with the mandate set out in UNSCR 1546 (hereinafter ‘security internees’) shall, if he is held for a period longer than 72 hours, be entitled to have a review of the decision to intern him. … (9) If a person is subsequently determined to be a criminal detainee following a review of his or her status, or following the commission of a crime while in internment, the period that person has spent in internment will not count with respect to the period set out in Section 5(2) herein ….”
“Section 1: Purpose and Scope This Memorandum of Understanding (MOU) sets out the authorities and responsibilities in relation to criminal suspects. For the purpose of this MOU, ‘criminal suspects’ are: … (c) individuals who are suspected of having committed criminal acts who are held at the request of the Iraqi authorities. Section 2: Authorities and Responsibilities Generally 1. The Interim Iraqi Government (and any successor) has legal authority over all criminal suspects who have been ordered to stand trial and who are waiting trial in the physical custody of UK MNF-I in accordance with the terms of this Memorandum of Understanding (MOU). 2. The UK MNF-I has a discretion whether to accept any particular criminal suspect into its physical custody and whether to continue to provide custody for a suspect who is in its physical custody at the time this MOU comes into operation or who, at any time in the future, comes into its custody. … Section 3: Authorities and Responsibilities in relation to individual criminal suspects 1. In relation to any criminal suspect being held in the physical custody of the UK MNF-I, the MOJ will: (a) provide UK MNF-I with a written request for his delivery up to attend a court appearance or for any other purpose connected with the criminal process and will give as much advance notice of the proposed date when the presence of the suspect is required as is practicable. … 4. In relation to any criminal suspect transferred to the MOI or the MOJ by UK MNF-I from its detention facilities, the MOJ and the MOI, as the case may be, will: (a) inform UK MNF-I before releasing any individual and will comply with any request by UK MNF-I that UK MNF-I should reassume custody if, (i) the individual is wanted for prosecution by any state that has contributed forces to the MNF for breaches of the laws and customs of war, or (ii) the internment of the individual is necessary for imperative reasons of security, in which case UK MNF-I will assume custody of that individual after consultation between the Participants to reach an agreed solution. … (c) provide an assurance that during any temporary periods when a suspect is in the hands of the Iraqi authorities whether at the UK MNF-I’s detention facility or elsewhere and at any time following the transfer of a suspect to Iraqi facilities, (i) the suspect will be treated humanely and will not be subject to torture or to cruel, inhuman or degrading treatment or punishment; and (ii) the requirements of CPA Orders with respect to co-operation with and reasonable access to be provided to the Iraqi Ombudsman for Penal and Detention Matters and the International Committee of the Red Cross will be adhered to. 5. If UK MNF-I decides that it is no longer prepared to provide custody facilities for a particular suspect, it shall give notice of this decision to the MOJ as soon as possible to enable the MOJ to make other arrangements for the custody of that suspect if it so wishes. The MOJ will then notify the UK MNF-I of the arrangements it has made or alternatively will indicate that the suspect should be released. UK MNF-I will then use its best endeavours to enable any such alternative arrangements to be put in place.”
“59. As to the ‘ordinary meaning’ of the relevant term inart 1 of the convention , the court is satisfied that, from the standpoint of public international law, the jurisdictional competence of a state is primarily territorial. While international law does not exclude a state’s exercise of jurisdiction extra-territorially, the suggested bases of such jurisdiction (including nationality, flag, diplomatic and consular relations, effect, protection, passive personality and universality) are, as a general rule, defined and limited by the sovereign territorial rights of the other relevant states …. 60. Accordingly, for example, a state’s competence to exercise jurisdiction over its own nationals abroad is subordinate to that state’s and other states’ territorial competence …. In addition, a state may not actually exercise jurisdiction on the territory of another without the latter’s consent, invitation or acquiescence, unless the former is an occupying state in which case it can be found to exercise jurisdiction in that territory, at least in certain respects …. 61. The court is of the view, therefore, thatart 1 of the convention must be considered to reflect this ordinary and essentially territorial notion of jurisdiction, other bases of jurisdiction being exceptional and requiring special justification in the particular circumstances of each case ….”
“67. In keeping with the essentially territorial notion of jurisdiction, the court has accepted only in exceptional cases that acts of the contracting states performed, or producing effects, outside their territories can constitute an exercise of jurisdiction by them within the meaning ofart 1 of the convention . 68. Reference has been made in the court’s case law, as an example of jurisdiction ‘not restricted to the national territory’ of the respondent state …, to situations where the extradition or expulsion of a person by a contracting state may give rise to an issue under arts 2 and/or 3 (or, exceptionally, under arts 5 and/or 6) and hence engage the responsibility of that state under the convention (Soering v UK [1989] ECHR 14038/88 at para 91 …). However, the court notes that liability is incurred in such cases by an action of the respondent state concerning a person while he or she is on its territory, clearly within its jurisdiction, and that such cases do not concern the actual exercise of a state’s competence or jurisdiction abroad …. 69. In addition, a further example noted in Loizidou v Turkey (preliminary objections)(1995) 20 EHRR 99 at para 62 was Drozd v France(1992) 14 EHRR 745 where, citing a number of admissibility decisions by the Commission, the court accepted that the responsibility of the contracting parties (France and Spain) could, in principle, be engaged because of acts of their authorities (judges) which produced effects or were performed outside their own territory …. In that case, the impugned acts could not, in the circumstances, be attributed to the respondent states because the judges in question were not acting in their capacity as French or Spanish judges and as the Andorran courts functioned independently of the respondent states. 70. Moreover, in Loizidou v Turkey … the court found that, bearing in mind the object and purpose of the convention, the responsibility of a contracting party was capable of being engaged when, as a consequence of military action (lawful or unlawful) it exercised effective control of an area outside its national territory. The obligation to secure, in such an area, the convention rights and freedoms was found to derive from the fact of such control whether it was exercised directly, through the respondent state’s armed forces, or through a subordinate local administration. The court concluded that the acts of which the applicant complained were capable of falling within Turkish jurisdiction within the meaning ofart 1 of the convention …. 71. In sum, the case law of the court demonstrates that its recognition of the exercise of extra-territorial jurisdiction by a contracting state is exceptional: it has done so when the respondent state, through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the government of that territory, exercises all or some of the public powers normally to be exercised by that government. … 73. Additionally, the court notes that other recognised instances of the extra-territorial exercise of jurisdiction by a state include cases involving the activities of its diplomatic or consular agents abroad and on board craft and vessels registered in, or flying the flag of, that state. In these specific situations, customary international law and treaty provisions have recognised the extra-territorial exercise of jurisdiction by the relevant state.”
“… I for my part would recognise the UK’s jurisdiction over Mr Mousa only on the narrow basis found established by the Divisional Court, essentially by analogy with the extraterritorial exception made for embassies (an analogy recognised too in Hess v United Kingdom (1975) 2 DR 72, a commission decision in the context of a foreign prison which had itself referred to the embassy X v Federal Republic of Germany).”
“The cases involving the activities of embassies and consulates … themselves subdivide into essentially two sub-categories, those concerning nationals of the respondent state and those concerning foreign nationals. The former includes cases like X v Federal Republic of Germany (1965) 8 Yearbook of the European Convention on Human Rights 158 and X v United Kingdom (1977) 12 DR 73; the latter cases like M v Denmark (1992) 73 DR 193 and R (B) v Secretary of State for Foreign and Commonwealth Affairs[2005] QB 643 ….”
“Thus there is a clash between on the one hand a power or duty to detain exercisable on the express authority of the Security Council and, on the other, a fundamental human right which the UK has undertaken to secure to those (like the appellant) within its jurisdiction. How are these to be reconciled? There is in my opinion only one way in which they can be reconciled: by ruling that the UK may lawfully, where it is necessary for imperative reasons of security, exercise the power to detain authorised by UNSCR 1546 and successive resolutions, but must ensure that the detainee’s rights under article 5 are not infringed to any greater extent that is inherent in such detention.”
“In sum, the decision by a Contracting State to extradite a fugitive may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country.”
“While the Strasbourg jurisprudence does not preclude reliance on articles other than article 3 as a ground for resisting extradition or expulsion, it makes it quite clear that successful reliance demands presentation of a very strong case. In relation to article 3, it is necessary to show strong grounds for believing that the person, if returned, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment: Soering, para 91 …. In Dehwari [29 EHRR CD 74], para 61… the Commission doubted whether a real risk was enough to resist removal under article 2, suggesting that the loss of life must be shown to be a ‘near certainty’. Where reliance is placed on article 6 it must be shown that a person has suffered or risks suffering a flagrant denial of a fair trial in the receiving state: Soering, para 113 …. Successful reliance on article 5 would have to meet no less exacting a test. The lack of success of applicants relying on articles 2, 5 and 6 before the Strasbourg court highlights the difficulty of meeting the stringent test which the court imposes. This difficulty will not be less where reliance is placed on articles such as 8 or 9, which provide for the striking of a balance between the right of the individual and the wider interests of the community even in a case where a serious interference is shown ….”
“We are content to assume (without reaching a positive conclusion on the point) that while in the consulate the applicants were sufficiently within the authority of the consular staff to be subject to the jurisdiction of the United Kingdom for the purpose of article 1 ….”
“83. … Does the principle in Soering apply to the act of expelling fugitives from consular premises and, if so, what is the extent of the risk that the fugitives must be facing before the principle comes into play? 84. In a case such as Soering the contracting state commits no breach of international law by permitting an individual to remain within its territorial jurisdiction rather than removing him to another state. The same is not necessarily true where a state permits an individual to remain within the shelter of consular premises rather than requiring him to leave. It does not seem to us that the Convention can require states to give refuge to fugitives within consular premises if to do so would violate international law. So to hold would be in fundamental conflict with the importance that the Grand Chamber attached in Bankovic’s case … to principles of international law. Furthermore, there must be an implication that obligations under a Convention are to be interpreted, so far as possible, in a manner that accords with international law ….”
“88. We have concluded that, if the Soering approach is to be applied to diplomatic asylum, the duty to provide refuge can only arise under the Convention where this is compatible with public international law. Where a fugitive is facing the risk of death or injury as the result of lawless disorder, no breach of international law will be occasioned by affording him refuge. Where, however, the receiving state requests that the fugitive be handed over the situation is very different. The basic principle is that the authorities of the receiving state can require surrender of a fugitive in respect of whom they wish to exercise the authority that arises from territorial jurisdiction: see article 55 of the 1963 Vienna Convention on Consular Relations. Where such a request is made the Convention cannot normally require the diplomatic authorities of the sending state to permit the fugitive to remain within the diplomatic premises in defiance of the receiving state. Should it be clear, however, that the receiving state intends to subject the fugitive to treatment so harsh as to constitute a crime against humanity, international law must surely permit the officials of the sending state to do all that is reasonably possible, including allowing the fugitive to take refuge in the diplomatic premises, in order to protect him against such treatment. In such circumstances the Convention may well impose a duty on a contracting state to afford diplomatic asylum. 89. It may be that there is a lesser level of threatened harm that will justify the assertion of an entitlement under international law to grant diplomatic asylum. This is an area where the law is ill-defined. So far as Australian law was concerned, the applicants had escaped from lawful detention under the provisions of theMigration Act 1958 . On the face of it international law entitled the Australian authorities to demand their return. We do not consider that the United Kingdom officials could be required by theConvention and the Human Rights Act 1998 to decline to hand over the applicants unless this was clearly necessary in order to protect them from the immediate likelihood of experiencing serious injury.”
“Each High Contracting Party shall be under the obligation to search for persons alleged to have committed … such grave breaches, and shall bring such persons, regardless of their own nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.”
“The facts complained of in this case, which the applicants contend constitute a violation of Article 2 of Protocol No.1 to the Convention and of Articles 8 and 14 of the Convention, are thus the result of a decision taken unilaterally by Algeria. [Notwithstanding / whatever] the legality of that decision in the light of international law, it in effect constitutes a refusal on the part of Algeria to comply with the agreement of19 March 1962 . The French authorities, who exercised ‘jurisdiction’ in Algerian territory in this case solely on the basis of that agreement, could only draw conclusions from that refusal as regards the provision of formal education to children in the same situation as the applicants’ children. In short, the facts complained of were caused by a decision attributable to Algeria, adopted by it with no possibility of appeal on its own territory and not open to any review by France. In other words, in the particular circumstances at issue here, France cannot be held responsible for those facts ….”
“128. In determining whether substantial grounds have been shown for believing that there is a real risk of treatment incompatible with Article 3, the Court will take as its basis all the material placed before it or, if necessary, material obtained proprio motu.... In cases such as the present the Court’s examination of the existence of a real risk must necessarily be a rigorousone. 129. It is in principle for the applicant to adduce evidence proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he would be exposed to a real risk of being subjected to treatment contrary to Article 3 …. Where such evidence is adduced, it is for the Government to dispel any doubts about it. 130. In order to determine whether there is risk of ill treatment, the Court must examine the foreseeable consequences of sending the applicant to the receiving country, bearing in mind the general situation there and his personal circumstances …. 131. To that end, as regards the general situation in a particular country, the Court has often attached importance to the information contained in recent reports from independent international human-rights-protection associations such as Amnesty International, or government sources, including the US State Department …. At the same time, it has held that the mere possibility of ill-treatment on account of an unsettled situation in the receiving country does not in itself give rise to a breach of Article 3 … and that, where the sources available to it describe a general situation, an applicant’s specific allegations in a particular case require corroboration by other evidence”
“The death penalty shall be abolished. No one shall be condemned to such penalty or executed.”
“With regard to the sentence, capital punishment is in the Iraqi law as well as the law of this tribunal. If the evidence obtained is sufficient to convict, then the members of this tribunal, consisting of 5 judges who have sufficient experience in voting and in the judiciary, will retreat to discuss among themselves whether to convict or not and a decision is issued either unanimously or by majority if it is 3 to 2. The dissenting member will be recorded and registered in the case papers. The sentence itself will then be discussed in terms of the nature and length. If the defendant apologises publicly for the crimes he committed against the victims, the tribunal will take this into account according to the law and is able to amend the capital punishment to a lesser punishment. Also if the victim’s family drops its charges, in some cases it may affect the sentence. After the decision is issued, the decision is subject to a mandatory appeal (automatic). If it is appealed or not by one of the parties, it is put to the appeal panel consisting of 9 judges including a chairman. A decision will then be issued to either confirm or to reject.”
“While it follows ... that States parties are not obliged to abolish the death penalty totally they are obliged to limit its use and, in particular, to abolish it for other than the ‘most serious crimes’ …. The Committee is of the opinion that the expression ‘most serious crimes’ must be read restrictively to mean the death penalty should be a quite exceptional measure.”
“127. Finally, the Court will examine the Government's argument that the assurances of humane treatment from the Uzbek authorities provided the applicants with an adequate guarantee of safety. In its judgment in the Chahal case the Court cautioned against reliance on diplomatic assurances against torture from a State where torture is endemic or persistent …. In the recent case of Saadi v. Italy the Court also found that diplomatic assurances were not in themselves sufficient to ensure adequate protection against the risk of ill-treatment where reliable sources had reported practices resorted to or tolerated by the authorities which were manifestly contrary to the principles of the Convention …. Given that the practice of torture in Uzbekistan is described by reputable international experts as systematic …, the Court is not persuaded that the assurances from the Uzbek authorities offered a reliable guarantee against the risk of ill-treatment”