CASE OF AL-SAADOON AND MUFDHI v. THE UNITED KINGDOM

Violation of Art. 3 (substantive aspect);No violation of Art. 6;Violation of Art. 13;Violation of Art. 34;Non-pecuniary damage - finding of violation sufficient

Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza

The facts of the case and the relevant legal framework may be summarised as follows .

On DATE a coalition of armed forces ( ORG or “ LAW ) , led by GPE with a large force from GPE and smaller contingents from GPE and GPE , commenced the invasion of GPE .

Major combat operations in GPE ceased at DATE . GPE and GPE thereafter became occupying powers within the meaning of section III of LAW on LAW ( DATE ) and LAW ) relative to ORG in Time of War ( GPE , DATE ) ( “ the LAW ” ) . LAW placed an obligation on GPE , within the area it occupied , to protect the civilian population against all acts of violence and LAW , DATE and CARDINAL gave GPE the power , inter alia , to intern NORP civilians where necessary for imperative reasons of security .

ORG ) was created by the government of GPE as a “ caretaker administration ” until an NORP government could be established . It had power , inter alia , to issue legislation . On DATE the GPE Secretary for Defence , PERSON , issued a memorandum formally appointing Ambassador PERSON as Administrator of the CPA with responsibility for the temporary governance of GPE . The CPA administration was divided into regional areas . CPA LOC remained under GPE responsibility and control , with a GPE regional coordinator . It covered DATE GPE ’s CARDINAL provinces , each having a governorate coordinator . NORP troops were deployed in the same area . GPE was represented at CPA headquarters through the office of GPE . Although GPE and his office sought to influence CPA policy and decisions , he had no formal decision - making power within the CPA . All the CPA ’s administrative and legislative decisions were taken by Ambassador PERSON .

CPA Regulation No . CARDINAL gave the CPA authority to issue binding regulations and orders and memoranda in relation to the interpretation and application of any regulation and order . CPA Order No . CARDINAL , dated DATE , modified the Iraqi Penal Code to remove certain offences and , in section CARDINAL(CARDINAL ) , suspended the operation of the death penalty in GPE . CPA Memorandum No . CARDINAL of DATE was entitled “ Criminal Procedures ” and contained , inter alia , the following provisions :

“ ( CARDINAL ) Consistent with LAW , the following standards will apply to all persons who are detained by ORG solely in relation to allegations of criminal acts and who are not security internees ( hereinafter ‘ criminal detainees’ ) :

( a ) Upon the initial induction into a ORG detention centre a criminal detainee shall be apprised of his rights to remain silent and to consult an attorney .

( b ) A criminal detainee suspected of a felony offence may consult an attorney TIME after induction into a ORG detention centre .

( c ) A criminal detainee shall be promptly informed , in writing , in a language which they understand , of the particulars of the charges preferred against them .

( d ) A criminal detainee shall be brought before a judicial officer as rapidly as possible and in no instance DATE from the date of induction into a ORG detention centre .

( e ) Access to detainees shall be granted to official delegates of ORG ( ICRC ) . ...

( CARDINAL ) Where any criminal detainee held by ORG is subsequently transferred to an NORP 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 . ”

“ ( CARDINAL ) Consistent with LAW , the following standards will apply to all persons who are detained by ORG where necessary for imperative reasons of security ( hereinafter ‘ security internees’ ) :

( a ) In accordance with LAW shall , with the least possible delay , afford persons held as security internees the right of appeal against the decision to intern them .

( b ) The decision to intern a person shall be reviewed not DATE from the date of induction into an internment facility by a competent body established for the purpose by ORG .

( c ) The operation , condition and standards of any internment facility established by ORG shall be in accordance with section IV of the Fourth Geneva Convention .

( d ) Access to internees shall be granted to official delegates of ORG ( ICRC ) . ...

( e ) If a person is subsequently determined to be a criminal detainee following tribunal proceedings concerning 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 ORG ) herein .

( f ) Where any security internee held by ORG is subsequently transferred to an NORP court , a failure to comply with these proceedings shall not constitute grounds for any legal remedy , but may be considered in mitigation in sentence . ”

NORP The invasion had gone ahead after the abandonment of the efforts by the coalition GPE to obtain the backing of ORG ( ORG ) resolution ( ORG ) . DATE was adopted by the ORG on DATE . Acting under LAW , the ORG called on the coalition of occupying GPE , in conformity with LAW and other relevant international law , to promote the welfare of the NORP people and work towards the restoration of conditions of stability and security . The ORG further requested the Secretary - General to appoint a Special Representative in GPE : he was to report regularly to the UNSC on his activities under the ORG , which were to coordinate the activities of ORG and other international agencies engaged in post - conflict processes and humanitarian assistance in a number of specified ways , including the protection of human rights .

NORP In DATE ORG was established , which the CPA was to consult on all matters concerning the temporary governance of GPE .

UNSCR CARDINAL , adopted on DATE , underscored the temporary nature of the CPA ’s role ; determined that ORG and its ministers were the principal bodies of the NORP interim administration which embodied the sovereignty of ORG during the transitional period until an internationally recognised , representative government was established and assumed the responsibilities of the CPA ; called upon the CPA to return governing responsibilities and authorities to the people of GPE as soon as practicable ; and invited ORG to produce a timetable and programme for the drafting of a new constitution for GPE and for the holding of democratic elections under that constitution . It authorised the ORG to take all necessary measures to contribute to the maintenance of security and stability in GPE and provided that the requirements and mission of the ORG would be reviewed within DATE of the date of the ORG and that in any case the mandate of the ORG was to expire upon the completion of the political process to which the resolution had previously referred .

Pursuant to UNSCR DATE ( see paragraph CARDINAL above ) , provision was made by CPA Order No . CARDINAL of DATE for the setting up of ORG to try members of the previous NORP regime alleged to be responsible for crimes and atrocities . In the Order , the CPA delegated to the interim government the following authority :

“ ORG is hereby authorised to establish an NORP Special Tribunal ( the ‘ Tribunal’ [ subsequently known as the ‘ NORP High Tribunal’ or ‘ IHT’ ] ) to try NORP nationals or residents of GPE accused of genocide , crimes against humanity , war crimes or violations of certain NORP laws , by promulgating a statute , the proposed provisions of which have been discussed extensively between ORG and the CPA ... ”

On DATE ORG promulgated ORG for the State of Iraq for the Transitional Period ( known as the “ LAW ” ) . This provided a temporary legal framework for the administration of GPE for the transitional period which was due to commence by DATE with the establishment of an interim NORP government ( “ the interim government ” ) and the dissolution of the CPA . LAW made provision for the laws in force in GPE at the time of that change to continue in effect unless rescinded or amended by the interim government , and specifically for the laws , regulations , orders and directives issued by the CPA to remain in force until rescinded or amended by legislation duly enacted and having the force of law .

Further provision for the new regime was made in UNSCR CARDINAL , adopted on DATE . The ORG endorsed “ the formation of a sovereign interim government of GPE ... which will assume full responsibility and authority by DATE for governing GPE ” ( LAW and welcomed “ that , also by DATE , the occupation will end and [ the CPA ] will cease to exist , and that GPE will reassert its full sovereignty ” ( LAW . It noted that the presence of the ORG was at the request of the incoming interim government ( as set out in correspondence between the NORP Prime Minister and the GPE Secretary of ORG annexed to the resolution ) and reaffirmed the authorisation for the ORG to remain in GPE , with authority to take all necessary measures to contribute to the maintenance of security and stability there . Provision was again made for the mandate of the ORG to be reviewed within DATE and to expire upon completion of the political process previously referred to .

A revised version of CPA Memorandum No . CARDINAL was issued on DATE ( “ CPA Memorandum No . CARDINAL ( Revised ) ” ) which amended the law and procedure in relation to detention . It provided as follows :

“ ( CARDINAL ) This Memorandum implements CPA Order No . CARDINAL by establishing procedures for applying criminal law in GPE , recognising that effective administration of justice must consider :

( a ) the continuing involvement of ORG ( ORG ) in providing critical support to some aspects of the administration of justice ;

( b ) the need to transition from this support ;

( c ) the need to modify aspects of NORP law that violate fundamental standards of human rights ;

( d ) the ongoing process of security internee management in accordance with the relevant and appropriate standards set out in LAW which shall be applied by the ORG as a matter of policy in accordance with its mandate .

“ ( CARDINAL ) ORG national contingent of the ORG shall have the right to apprehend persons who are suspected of having committed criminal acts and are not considered security internees ( hereinafter ‘ criminal GPE ) who shall be handed over to NORP authorities as soon as reasonably practicable . A national contingent of the ORG may retain criminal detainees in facilities that it maintains at the request of the appropriate NORP authorities based on security or capacity considerations . Where such criminal detainees are retained in the detention facilities of a national contingent of the ORG the following standards will apply :

( a ) Upon the initial induction into the detention centre a criminal detainee shall be apprised of his rights to remain silent and to consult an attorney by the authority serving an arrest warrant .

( b ) A criminal detainee suspected of a felony offence may consult an attorney TIME after induction into the detention centre .

( c ) A criminal detainee shall be promptly informed , in writing , in a language which they understand , of the particulars of the charges preferred against them by the authority serving an arrest warrant .

( d ) A criminal detainee shall be brought before a judicial officer as rapidly as possible and in no instance DATE from the date of induction into the detention centre .

( e ) Access to detainees shall be granted to the NORP Prisons and Detainee Ombudsman ( hereinafter ‘ the Ombudsman’ ) . ...

( f ) Access to detainees shall be granted to official delegates of ORG ( ICRC ) . ...

( CARDINAL ) Where any criminal detainee held by a national contingent of the ORG is subsequently transferred to an NORP 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 . ”

“ ( CARDINAL ) Any person who is detained by a national contingent of the ORG for imperative reasons of security in accordance with the mandate set out in UNSCR CARDINAL ( hereinafter ‘ security internees’ ) shall , if he is held for a period TIME , be entitled to have a review of the decision to intern him .

( CARDINAL ) The review must take place with the least possible delay and in any case must be held DATE after the date of induction into an internment facility .

( CARDINAL ) Further reviews of the continued detention of any security internee shall be conducted on a regular basis but in any case not DATE from the date of induction into an internment facility .

( CARDINAL ) The operation , condition and standards of any internment facility established by the ORG shall be in accordance with section IV of the Fourth Geneva Convention .

( CARDINAL ) ORG internees who are placed in internment after DATE , must in all cases only be held for so long as the imperative reasons of security in relation to the internee exist and in any case must be either released from internment or transferred to the NORP criminal jurisdiction not DATE from the date of induction into an ORG internment facility . Any person under DATE interned at any time shall in all cases be released not DATE after the initial date of internment .

( CARDINAL ) 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 CARDINAL(CARDINAL ) herein ... ”

CPA Order No . CARDINAL ( Revised ) , dated DATE , dealt with the status of ORG personnel in GPE . LAW established the immunity from NORP legal process of ORG personnel , as follows :

“ ( CARDINAL ) Unless provided otherwise herein , the ORG , the CPA , ORG , their Personnel , property , funds and assets , and all ORG shall be immune from NORP legal process .

( CARDINAL ) All ORG , CPA and ORG , and ORG shall respect the NORP laws relevant to those Personnel and Consultants in GPE including the Regulations , Orders , Memoranda and Public Notices issued by the Administrator of the CPA .

( CARDINAL ) All ORG , CPA and ORG , and ORG shall be subject to the exclusive jurisdiction of their ORG . They shall be immune from any form of arrest or detention other than by persons acting on behalf of their ORG , except that nothing in this provision shall prohibit ORG from preventing acts of serious misconduct by the above - mentioned ORG , or otherwise temporarily detaining any such Personnel or Consultants who pose a risk of injury to themselves or others , pending expeditious turnover to the appropriate authorities of ORG . In all such circumstances , the appropriate senior representative of the detained person ’s ORG in GPE shall be notified immediately .

( CARDINAL ) GPE of MNF Personnel shall have the right to exercise within GPE any criminal and disciplinary jurisdiction conferred on them by the law of that ORG over all persons subject to the military law of that ORG .

Section CARDINAL(CARDINAL ) of the Order provided for the inviolability of ORG facilities , as follows :

“ The ORG may use without cost such areas for headquarters , camps or other LOC as may be necessary for the conduct of the operational and administrative activities of the ORG . All LOC currently used by the ORG shall continue to be used by it without hindrance for the duration of this Order , unless other mutually agreed arrangements are entered into between the ORG and the ORG . While any areas on which such headquarters , camps or other LOC are located remain NORP territory , they shall be inviolable and subject to the exclusive control and authority of the ORG , including with respect to entry and exit of all personnel . The ORG shall be guaranteed unimpeded access to such MNF premises . Where ORG are co - located with military personnel of GPE , permanent , direct and immediate access for the ORG to those premises shall be guaranteed . ”

On DATE the occupation came to an end when full authority was transferred from the CPA to the interim government and the CPA ceased to exist . Subsequently the ORG , including the NORP forces forming part of it , remained in GPE pursuant to requests by the NORP government and authorisations from the UNSC . In accordance with section CARDINAL of LAW ( see paragraph CARDINAL above ) , the CPA Memorandum and Order set out above remained in force .

In DATE ORG reintroduced the death penalty to GPE in respect of certain violent crimes , including murder and certain war crimes .

On DATE ORG established ORG ( ORG ) . The ORG was given jurisdiction over a list of offences , including war crimes , committed in GPE or elsewhere during the period QUANTITY DATE to CARDINAL DATE . Article CARDINAL of its Statute provided for a number of fair trial guarantees for accused persons . Article CARDINAL provided that the ORG should impose the penalties prescribed by LAW .

On DATE a memorandum of understanding ( ORG ) regarding criminal suspects was entered into between the GPE contingent of the ORG and ORG and of ORG ( collectively referred to as “ the Participants ” ) . The preamble to the ORG recited the authority of the GPE contingent of the ORG , “ in accordance with the mandate conferred by UNSCR CARDINAL ” , to intern persons for imperative reasons of security , and the power of national contingents of the ORG , “ in accordance with CPA Memorandum No . CARDINAL ( Revised ) ” , to apprehend persons who were suspected of committing criminal acts . It also stated that “ [ w]hereas GPE is developing its own custodial capacity with the aim of being able to confine all criminal suspects in its own facilities , it may , in the meantime , request [ the GPE contingent of the ORG ] to confine persons who are suspected of having committed criminal acts in safe and secure detention facilities , subject to security and capacity considerations ” . The substantive provisions of the ORG included the following :

“ This Memorandum of Understanding ( MOU ) sets out the authorities and responsibilities in relation to criminal suspects . For the purpose of this ORG , ‘ criminal PERSON are : ...

( c ) individuals who are suspected of having committed criminal acts who are held at the request of the NORP authorities . ”

“ ( CARDINAL ) The interim NORP 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 [ the GPE contingent of the ORG ] in accordance with the terms of this Memorandum of Understanding ( ORG ) .

( CARDINAL ) The [ GPE contingent of the ORG ] 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 ORG comes into operation or who , at any time in the future , comes into its custody . ... ”

“ ( CARDINAL ) In relation to any criminal suspect being held in the physical custody of the [ GPE contingent of the ORG ] , ORG will :

( a ) provide [ the GPE contingent of the ORG ] 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 ;

( d ) ensure that any criminal proceedings commenced against a criminal suspect progress without undue delay .

( CARDINAL ) In relation to any criminal suspect being held in the physical custody of [ the GPE contingent of the ORG ] , [ the GPE contingent of the ORG ] :

( a ) will provide humane treatment and will not subject any criminal suspect to torture or to cruel , inhuman or degrading treatment or punishment ;

( c ) will take appropriate steps to ensure that the conditions of custody meet the standards set out in CPA Memoranda Nos . CARDINAL and CARDINAL ;

( CARDINAL ) In relation to any criminal suspect apprehended by [ the GPE contingent of the ORG ] and handed over to the NORP authorities as soon as reasonably practicable , in accordance with section CARDINAL of the CPA Memorandum No . CARDINAL ( Revised ) , ORG and ORG , as the case may be :

( a ) will provide humane treatment and will not subject any criminal suspect to torture or to cruel , inhuman or degrading treatment or punishment ; and

( b ) will hold the criminal suspect in accordance with NORP law .

( CARDINAL ) In relation to any criminal suspect transferred to ORG or ORG by [ the GPE contingent of the ORG ] from its detention facilities , ORG and ORG , as the case may be , will :

( a ) inform [ the GPE contingent of the ORG ] before releasing any individual and will comply with any request by [ the GPE contingent of the ORG ] that [ the GPE contingent of the ORG ] should reassume custody if ,

( i ) the individual is wanted for prosecution by any ORG that has contributed forces to the ORG 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 [ the GPE contingent of the ORG ] 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 NORP authorities whether at the [ the GPE contingent of the ORG ] ’s detention facility or elsewhere and at any time following the transfer of a suspect to NORP 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 cooperation with and reasonable access to be provided to ORG and ORG will be adhered to .

( CARDINAL ) If [ the GPE contingent of the ORG ] decides that it is no longer prepared to provide custody facilities for a particular suspect , it shall give notice of this decision to ORG as soon as possible to enable ORG to make other arrangements for the custody of that suspect if it so wishes . ORG will then notify [ the GPE contingent of the ORG ] of the arrangements it has made or alternatively will indicate that the suspect should be released . [ The GPE contingent of the ORG ] will then use its best endeavours to enable any such alternative arrangements to be put in place . ”

The last relevant ORG , DATE of DATE , extended the ORG ’s mandate to remain , for the last time , until DATE . Annexed to the ORG was a letter from the NORP Prime Minister which stated , inter alia :

“ The government of GPE requests that ORG should consider extending the mandate of NORP in the light of GPE ’s achievements over DATE , namely , the strengthened capacity of its ORG and security forces and its significant successes in the security , political and economic spheres . A review of the role and authority of ORG will thus be required in order to strike a balance between , on the one hand , the need to extend , CARDINAL last time , the mandate of the force and , on the other hand , progress made by GPE in the area of security . In this regard , it is important for GPE to be treated as an independent and fully sovereign ORG and , in seeking the aforementioned balance , the following objectives should be highlighted :

NORP The government of GPE will be responsible for arrest , detention and imprisonment tasks . When those tasks are carried out by NORP , there will be maximum levels of coordination , cooperation and understanding with the government of GPE . ”

In DATE ORG made representations to the NORP Deputy Prime Minister , PERSON , and the NORP Minister of Human Rights that GPE should not adopt the death penalty Order ( which restored the death penalty for certain specified offences ) of the interim NORP government .

Further representations were considered before the ORG was signed in DATE . However , that ORG was intended to set out the authorities and responsibilities of the respective parties . Consequently , primarily as a result of the reintroduction by GPE of the death penalty for certain specified offences , the judgment was made that GPE would not respond favourably to requests that the ORG reverse the effect of the recently adopted NORP Order and prohibit the imposition or use of the death penalty . The judgment was made that it was better to pursue GPE opposition to the imposition and use of the death penalty by other means .

Further representations were made on this issue . During GPE Presidency of ORG in DATE , the ORG made representations to the NORP Deputy Minister for ORG advocating the abolition of the death penalty .

The Government supported a démarche against the use of the death penalty issued by the NORP Presidency to ORG in DATE .

On DATE the NORP ambassador made representations to the NORP President , PERSON , that he should not sign a death warrant in the event that a death penalty was passed on those involved in the abduction of PERSON and PERSON .

The Prime Minister ’s Special Envoy for Human Rights in GPE wrote to the President of GPE on DATE to request a stay of execution for CARDINAL NORP women sentenced to death . The opposition to the imposition or use of the death penalty under any circumstances was reiterated .

In DATE the Government supported a démarche opposing the use of the death penalty following the imposition of the death penalty on PERSON .

The Government strongly supported the resolutions adopted by ORG in DATE ( A / Res/CARDINAL/CARDINAL ) and in DATE ( A / Res/CARDINAL/CARDINAL ) , calling upon all GPE that maintain the death penalty to establish a moratorium on executions with a view to abolition .

NORP In response to recent executions in GPE , the Government joined other NORP member GPE in a démarche against the death penalty delivered on DATE and reissued on DATE by ORG Presidency to NORP Vice President PERSON and to the Head of the NORP Prime Minister ’s Office .

ORG , passed on DATE , stated as follows :

“ The forces of GPE and GPE are permitted to stay in GPE to complete the tasks they are given , and for these tasks to end no later than the CARDINALst of DATE and to fully withdraw from GPE no later than the DATE .

“ ( a ) Members of the forces referred to in ORG CARDINAL and CARDINAL of the PERSON and members of ORG of the countries to which those aforementioned forces belong , who are working with those forces , shall be subject to the jurisdiction of GPE with the exception of crimes committed by them while on duty which are not committed with intent or do not arise from gross negligence , and with the exception of those committed by them inside agreed facilities and military installations used by them , in which case they shall be subject to the jurisdiction of the country to which they belong .

( c ) An accused member of the forces or ORG of the countries referred to in DATE and CARDINAL of this PERSON , shall be held in the custody of the authorities of the country to which the accused belongs . These authorities should make available the accused to the NORP authorities for the purposes of investigation and trial .

“ The task and activities of the forces referred to in ORG CARDINAL and CARDINAL of this PERSON and their facilities and military installations during their temporary presence in GPE are to be specified by the government of GPE with the agreement of the governments and parties concerned , providing that these troops do not carry out any operations or military activities within NORP land , airspace and waters without prior approval from the government of GPE . ”

The applicants are NORP from southern GPE . The first applicant joined ORG in DATE , aged CARDINAL . In DATE he became the Branch Member of the PERSON branch of ORG ( reporting to the second applicant , the General Secretary of the PERSON branch ) . The second applicant joined ORG in DATE , aged DATE . In DATE he became the General Secretary of the PERSON branch , the highest rank in the province of PERSON .

NORP On or around DATE , CARDINAL NORP servicemen , Staff PERSON and PERSON , were ambushed in PERSON , southern GPE , by NORP militia forces . Their bodies were found on DATE buried in the grounds of a government building in PERSON . They were found to have been killed by multiple gunshot wounds .

DATE NORP forces in GPE arrested the first applicant on DATE and the second applicant on DATE . They were initially detained at a facility run by NORP forces known as “ GPE ” . On DATE they were transferred to a NORP - run facility in GPE known as the “ Divisional Temporary Detention Facility ” . On DATE they were transferred to another NORP detention facility in GPE , the “ ORG ” , where they remained until DATE .

The applicants were initially classified as “ security internees ” . Their notices of internment stated that they were suspected of being senior members of ORG under the former regime and of orchestrating anti - MNF violence by former regime elements , and that it was believed that if they were released they would represent an imperative threat to security .

DATE and DATE the Special Investigations Branch of GPE ORG conducted an investigation into the deaths of Staff PERSON and ORG and found evidence that the applicants were part of a group who slapped and rifle - butted the soldiers , at a time when they were prisoners of war ; entered into an agreement to kill them ; and were among those seen to have shot at them .

The minutes of the meetings of ORG ( ORG ) referring to the applicants read as follows :

“ GPE SofS [ Secretary of ORG ] is concerned about the death penalty and the [ NORP ] prosecutor is not sure that there is a realistic prospect of conviction as the offence happened too close to the actual hostilities . Negotiations are continuing at a high level . ”

“ Referred to ORG over proposed transfer to CCCI [ ORG of GPE ] because the death penalty might be imposed . There has now been a case conference between prosecutor , MoJ [ NORP Ministry of Justice ] and ORG legal [ ORG ] .

CCCI is still considering whether to take the case . Comd [ Commander ] Legal will chase ORG and progress from CCCI . ”

“ A case conference was held in GPE on DATE . This has convinced the prosecutors that there is a good case . However they have cold feet about prosecuting it as the matter is so high profile . ORG will be considering with ORG - I [ Senior NORP Military Representative – GPE ] POLAD [ Political Adviser ] how to proceed ; we may have to bring a prosecutor or assistant out from GPE . ”

“ ORG [ a military legal officer ] has asked ORG Brig Prosecutions to look into establishing a new post in GPE for an ORG officer to assist with the prosecution of this case . The requirements will be discussed between ORG and the NORP JAG [ Judge Advocate General ] liaison team to the CCCI when SCARDINAL Legal attends GPE on DATE . ”

“ SIB [ Royal Military Police Special Investigation Branch ] have now completed final interviews , which have not progressed the case in any material way . Discussions between Legal Branch , ORG - I ORG and ORG [ ORG ] are ongoing reference the bid for an ORG officer / civilian lawyer to assist with the prosecution of this case . ORG [ NORP military legal officer , PERSON ] will go to GPE from DATE to begin to assess the paperwork and decide what further work is needed and how long it will take , in order better to decide on the requirement for the assistant prosecutor . ”

“ ORG visited GPE to consider the requirements for a CCCI LO [ NORP ORG Officer ] . The [ deleted ] Case is almost ready to take to court but the EOD [ explosive ordinance disposal ] case ... will need a significant amount of work . The decision over who will take on these cases has been staffed back to ORG . PERSON ( ORG - I ORG ) thinks it should be an ORG officer , the ORG hierarchy are not sure . Due to the sensitivity of these cases it will probably be decided at ministerial level . ”

“ The CCCI LO issue over who is to liaise with the ORG over the prosecution of the ORG murder case ... is still being considered in the GPE . ORG will be chasing ORG DATE .

HQ ORG , ORG [ ORG ] and ORG are discussing who will take this case forward at the CCCI . The GPE LOs are not prepared to take the case on and have asked for a GPE LO . It is not yet clear who this will be . Once it has been decided who will lead on the case , ORG will need to make further enquiries . ”

“ ORG [ the ORG Prosecuting Authority ] has informed ORG that Major PERSON has been designated as the PERSON to the CCCI . Date of commencement tbc [ to be confirmed ] . This will affect internees DATE and DATE [ the applicants ] as they may eventually be transferred to the CCCI if it is decided to prosecute them . ”

“ The issue is over who will conduct the case . It has been agreed that Major PERSON will be sent to liaise with the CCCI in GPE wef [ with effect from ] DATE to progress prosecutions . However it now appears that there is confusion over whether he will be allowed to progress this particular case ( although others will be OK ) . ORG will chase ALS to find out what will be decided about progress on this case . This case needs more investigations and a decision clarifying how many accused / what offences before it can be passed to the investigative magistrate of the CCCI and a remand order can be sought . ”

“ The ALS CCCI LO is currently examining all the case papers and will produce a case analysis as to potential prosecution of all individuals implicated , including this internee . The case analysis is expected to be available in DATE . It will then be circulated within the MOD / ORG and other interested parties in order for a decision as to the way forward to be made , particularly given the potential death penalty issue .

Upon distribution of the case analysis from ORG , pressure should be maintained on ORG to identify the way forward given the potential death penalty difficulties . ORG to action . ”

“ The ALS CCCI LO has now considered all the case papers and prepared a case analysis as to the strength and viability of a potential prosecution of all individuals implicated , including this internee . Pursuant to a meeting with ORG at HQ MND(SE ) [ ORG ( South - East ) ( GPE ) ] on DATE , it has been assessed that there exists sufficient evidence to prosecute the case against this internee . The case analysis is now with ORG in GPE , where a meeting is expected to take place between PJHQ [ Permanent Joint Head Quarters ] , the ORG and the ORG within DATE focusing on the legal ramifications surrounding the transfer of the case to the CCCI in GPE for prosecution , particularly given the potential death penalty issue .

Pressure should be maintained on the MOD / FCO to expedite the way forward in providing guidance on the potential death penalty difficulties now that the case analysis is complete and the early phases of the operation are underway . ORG to action . ”

“ The case analysis is now with the MOD / FCO in GPE and governmental discussions are ongoing ( although currently stalled ) on the legal ramifications surround [ sic ] the transfer of the case to the CCCI in GPE for prosecution , particularly given the possible application of the death penalty .

Pressure must continue to be maintained on the MOD / FCO to expedite the way forward now that the case analysis is with the Government for consideration . In particular , guidance must be sought on the safeguards that can be imposed before transferring the case to the CCCI , especially in light of the potential death penalty difficulties . ORG to action . ”

[ Having noted that the case analysis was still with the MOD / FCO in GPE ]

“ ORG hope is this internee ’s case , together with DATE , will be submitted before the CCCI in GPE during DATE with the ultimate aim these internees be transferred out of the DTDF [ ORG ] and handed over into the ICJS [ NORP Criminal Justice System ] . ORG was of the view it would be easier to secure witness evidence in any CCCI case owing to the fact this internee , together with DATE , were senior Ba’athists . Issues may arise over the detention of potential co - accused . Again , however it is assessed that the detention of such individuals who are still alive may prove less problematic than many other detention questions . ”

“ This internee ( together with ... PERSON ... ) is , as a result of extensive investigation by ORG of ORG , believed to be responsible for the deaths ( on or DATE ) of Staff PERSON and PERSON , both of ORG .

The investigation has resulted in eye witness testimony that alleges this accused ( who was a civilian and head of ORG ) was CARDINAL of a group of people who slapped and rifle - butted the CARDINAL above - named soldiers at a time when they were prisoners of war and were , therefore , protected persons under LAW to LAW dated DATE . This internee was a party to an agreement to kill the soldiers and was seen to be CARDINAL of those who shot the CARDINAL soldiers .

The police investigation is now complete and GPE intends to lodge the evidence with ORG in the near future . ”

On DATE the cases against the applicants concerning the deaths of Staff PERSON and ORG were formally referred by the GPE contingent of the ORG to the Chief Investigative Judge of ORG . The cases were subsequently transferred to ORG and on DATE a NORP officer attended that court to make a statement of complaint in respect of the killing of the CARDINAL soldiers .

On DATE the applicants appeared before ORG of ORG to give evidence in response to the complaint . The court issued arrest warrants under LAW and made an order authorising the applicants’ continued detention by the GPE contingent of the ORG . On DATE the GPE authorities decided to reclassify the applicants from “ security internees ” to “ criminal detainees ” .

After an initial investigation , ORG decided that , since the alleged offences constituted war crimes , the ORG cases should be transferred to the ORG ( see paragraph CARDINAL above ) and the ORG accepted that it had jurisdiction . The applicants twice appealed against the decision to transfer their cases to the ORG but ORG in its appellate capacity dismissed the first appeal on DATE and ORG in GPE dismissed the second appeal on CARDINAL DATE .

The ORG first requested that the applicants be transferred into its custody on DATE and repeated that request on several occasions until DATE . When asked by ORG to clarify why the applicants were not transferred by the GPE contingent of the ORG to the ORG DATE , counsel for the Government explained :

“ We took the view that there was then a genuine issue , because there had been no decision by any court as to whether or not there was the international - law obligation that we say existed or any decision on the question of jurisdiction . That was resolved by ORG , and thereafter we have said it is not now possible for us to give that undertaking [ not to transfer them ] . ”

DATE . On DATE the applicants issued judicial review proceedings in GPE challenging , inter alia , the legality of their proposed transfer . Shortly after proceedings were issued , the Government provided an undertaking that it would not transfer the applicants pending the determination of their claim before the NORP courts .

DATE , on DATE , PERSON ( Legal Adviser at the NORP embassy in GPE ) met with the President of the ORG , President PERSON , to reiterate GPE strong opposition to the death penalty . During this discussion President PERSON invited letters from the GPE families and from the NORP embassy in GPE opposing the imposition of the death penalty in this case , as that would be a factor which would be taken into account by the court . President PERSON also indicated that it would be helpful if the NORP embassy waived its right to civil compensation .

On DATE the Second Secretary Human Rights Officer at the NORP embassy in GPE , Mr PERSON , met with President PERSON to further discuss the situation and what would be the effect if CARDINAL of the families of the CARDINAL victims were to write to seek clemency . The President indicated that if CARDINAL of the CARDINAL families sought clemency , the letter from CARDINAL family would be taken into account by the court and the fact that the other family had not done so would not significantly affect matters .

The Government were able to contact CARDINAL of the families of the CARDINAL victims . That family agreed to support a plea for clemency and the non - imposition of the death penalty in the event that the applicants were convicted of a capital offence .

The NORP embassy in GPE also wrote seeking the non - imposition of the death penalty . It also waived any right to civil compensation .

PERSON held a further meeting with President PERSON on DATE and presented him with the letter from the NORP embassy , outlining GPE opposition to the imposition of the death penalty . The letter was signed by the NORP ambassador , PERSON , and waived the right to compensation . This was accompanied by a letter dated DATE from CARDINAL of the families seeking clemency , with an NORP translation .

The hearing before ORG took place on DATE . Claims by the applicants concerning the legality of their detention by NORP forces were adjourned .

At the hearing the court expressed its concerns about what would happen to the applicants after the expiry of ORG mandate on DATE . The Government put before the court evidence about the intergovernmental negotiations between GPE and GPE that were then continuing as to whether and pursuant to what terms NORP forces would be permitted to remain in GPE post-CARDINAL DATE . This included the following statement of PERSON , one of the leaders of GPE negotiating team :

“ ... I recognised that , if possible , it would be desirable for GPE forces to be in a position to continue to hold the claimants for a period of time whilst this litigation is resolved . I therefore considered with colleagues whether it would be appropriate to raise this issue with the NORP negotiating team . I can not comment in detail on sensitive inter - governmental negotiations , but the judgment was made that to introduce the issue of GPE forces continuing to hold detainees , whether generally or specifically in relation to these CARDINAL claimants , risked adversely affecting the conduct and outcome of these important and urgent negotiations .

Furthermore , the judgment was made that raising the issue would not in any event have resulted in any agreement with the NORP authorities whereby the claimants remained in the custody of the NORP forces in GPE , still less that they would agree to the removal of the claimants from GPE . Given the fact that the NORP are seeking the transfer of detainees from the GPE to GPE and the fact that these CARDINAL claimants are NORP nationals accused of crimes within GPE and that the NORP courts have repeatedly requested the transfer of these QUANTITY claimants in order to complete investigations and if appropriate try them , there was no realistic prospect of GPE agreeing to allow them to remain within the custody of the GPE . To have raised the issue would therefore have resulted in my judgment in no change in relation to the position of the claimants , but would have risked adversely affecting the conduct and outcome of the negotiations with the government of GPE .

... I have considered whether there may be any other means whereby GPE forces could continue to hold the claimants for a period of time beyond DATE pending the outcome of this litigation . Conceivably , we might ask the government of GPE to submit draft legislation to the CoR [ ORG ] specifically to permit the GPE to hold the claimants indefinitely or pending the outcome of this litigation . Given the facts set out in the previous paragraph , I consider that there is no reasonable prospect that the government of GPE would accede to such a request . Furthermore , the process of drafting and passing such legislation would extend beyond DATE . And even raising the issue would in my considered opinion risk adversely affecting the passage of the legislation and finalising of the inter - governmental arrangement .

There is no likelihood in my view of the GPE being able to secure any agreement from the NORP authorities that we may continue to hold the claimants either indefinitely or pending the outcome of this litigation . ”

Judgment was delivered on DATE . ORG noted that the applicants had been subject to the jurisdiction and legal authority of the NORP courts since no later than CARDINAL DATE ( see paragraph CARDINAL above ) . CPA Memorandum No . CARDINAL ( Revised ) ( see paragraph CARDINAL above ) , which was the NORP law in force at the time , required the NORP forces to hand over “ criminal detainees ” to the NORP authorities as soon as practicable . This requirement was also reflected in GPE ORG of CARDINAL DATE ( see paragraph QUANTITY above ) . Nonetheless , ORG rejected the ORG ’s argument that the actions of GPE in respect of the applicants were attributable to the NORP authorities : the NORP forces were lawfully present in GPE , pursuant to a ORG mandate , as part of the ORG subject to the exclusive jurisdiction of GPE and independent of ORG . The NORP forces had physical custody and control of the applicants and had it in their power to refuse to transfer them to the custody of the ORG , even if to act in such a way would be contrary to GPE international - law obligations . The applicants therefore fell within GPE jurisdiction for the purposes of LAW DATE .

ORG then considered whether the applicants could rely on the principle against refoulement in GPE v. GPE , ( DATE , Series A no . CARDINAL ) . It rejected the ORG ’s argument that the PERSON principle could apply only to transfers across territorial boundaries , but it considered itself bound by ORG judgment in R(B ) v. Secretary of ORG ( [ DATE ] EWCA Civ CARDINAL : see paragraph CARDINAL below ) , which held that where a fugitive was within the jurisdiction of GPE but on the territory of another sovereign ORG ( for example , within an embassy or consulate ) , GPE was under an international - law obligation to surrender him unless there was clear evidence that the receiving ORG intended to subject him to treatment so harsh as to constitute a crime against humanity .

The Divisional Court considered expert evidence relating to the fairness of proceedings before the ORG . It found no cogent evidence to support the ORG claims that detainees held by the NORP authorities were subjected to torture to extract confessions and that evidence obtained by torture would be used against them . It found that although , during the first CARDINAL trials before the ORG in which PERSON was CARDINAL of the defendants ( the PERSON and PERSON trials ) , there had been a number of fatal attacks on ORG staff and defence lawyers , the situation had improved and no lawyers , witnesses or ORG staff members had been kidnapped or killed in DATE . It did not , therefore , consider that ORG staff and counsel would be so concerned about their safety as to prevent the applicants from having a fair trial and it found that adequate security measures were taken to protect witnesses . There had been no permanent replacements of judges in current trials and there was not a sufficient risk of replacement of the judiciary to operate as a factor prejudicing the possibility of the applicants’ receiving a fair trial . The court noted examples of concerns expressed by third parties relating to the independence of the ORG , but observed that these related to events during the PERSON and PERSON trials in DATE , with no more recent examples of such concerns . Taking everything together , it was satisfied that the ORG was sufficiently independent to meet the requirements of a fair trial . There was no real risk of defence counsel being prevented from doing a proper job for the applicants in the event of a trial . The IHT Statute and its rules had been modelled on FAC for the Former GPE and GPE and ORG . The protection afforded to defendants included the presumption of innocence ; the right to be informed of charges ; the right to defence counsel ; the right to be tried without undue delay ; the right to be present during trial ; the right to examine or confront witnesses ; the privilege against self - incrimination ; the right not to have silence taken into account in determining guilt ; the right of disclosure of exculpatory evidence and witness statements ; the exclusion of coerced evidence ; the right to ensure that interrogations are videotaped ; the right to pose questions directly to the witness ; and the right to appellate review . ORG concluded with regard to the risk of a breach of LAW :

“ The overall picture which emerges is that , although initially there were deeply unsatisfactory aspects of the ORG and trial environment , which cast doubt on the ability to provide defendants with a fair trial at that time , there have been many significant improvements since then .

... To date the claimants have appeared before the NORP courts and have denied the allegations made against them ; and there can be no complaint about the way in which the courts have dealt with them . As to the future , looking at the various points individually and cumulatively , the evidence before us falls a long way short of establishing substantial grounds for believing there to be a real risk that a trial of the claimants would involve a flagrant breach of the principles guaranteed by LAW . Thus , even if the LAW were to apply in the normal way , we would reject the claim that transfer of the claimants into the custody of the ORG would be contrary to LAW . ”

Next , ORG considered the evidence relating to the likelihood that the applicants would be subjected to the death penalty . It concluded :

“ Taking the evidence as a whole , we are satisfied that substantial grounds have been shown for believing there to be a real risk of the claimants being condemned to the death penalty and executed , contrary to LAW No . CARDINAL , if they are transferred into the custody of the ORG . In particular : ( a ) the penalties for the offences with which the applicants are charged include the death penalty ; ( b ) there is clear evidence that persons convicted of such offences are liable in practice to be sentenced to death ; ( c ) the matters relied on as mitigating against the imposition of the death penalty are not sufficiently cogent or certain to negative the real risk ; ( d ) in spite of the efforts made on behalf of the Secretary of ORG , no assurance has been given that the death penalty will not be imposed in this case ; and ( e ) in any event , even if President PERSON [ the President of the ORG ] had given such an assurance , we are not satisfied it would necessarily be effective because he does not have the authority to bind the appeal chamber which would automatically have to consider the appropriate sentence , whatever decision the trial chamber had reached . ”

However , the court found that although the death penalty was prohibited by the Convention , it was not yet contrary to internationally accepted norms , at least where it was imposed for serious crimes following conviction at a trial that met minimum standards of fairness . It followed that “ however repugnant the death penalty may be within our domestic legal system and under the Convention , its imposition would not be contrary to international law ” and the risk that the applicants might be executed did not therefore operate to relieve GPE of its public international - law obligation to transfer them to the custody of the ORG .

The Divisional Court next examined the issues under LAW . It found that the ORG had requested that , prior to trial , the applicants should be detained in LAW of FAC , which was run by ORG ; if the applicants were convicted and sentenced to over DATE of imprisonment , they would be sent to FAC , also run by ORG . The court referred to a report by ORG , the NORP army officer responsible for conducting inspections of NORP overseas military detention facilities , who had inspected PERSON in DATE and found that Compound CARDINAL “ satisfied the requirements [ of FAC ] ” in respect of the applicants , providing “ relative segregation , protection from elements and reasonable living conditions ” . Although the Provost PERSON ’s inspectors had received complaints from some detainees about the lack of visits and the quality of the food , no one had complained of mistreatment . ORG also referred to an inspection report by ORG to CARDINAL at FAC , which found no indication that detainees were subjected to intentional or overt acts of mistreatment . Conditions at Compound CARDINAL were found to comply with basic human rights standards ; detainees were allowed regular visits from legal representatives and relatives ; force was used only as a last resort when necessary to prevent prisoners from harming themselves or others ; corporal punishment was forbidden and the prisoners interviewed stated that they had never known it to be used ; and there was a robust system for the reporting of any mistreatment . In addition , the court had reference to the fact that , in accordance with paragraph CARDINAL(c ) of section CARDINAL of the MOU of CARDINAL November CARDINAL ( see paragraph CARDINAL above ) , the NORP authorities had provided an assurance that , following transfer to NORP facilities , the applicants would be treated humanely . Although the applicants had adduced expert evidence concerning the conditions at FAC , this evidence did not establish any instances of actual mistreatment of prisoners . The evidence relating to FAC did not indicate that , if detained there , the applicants would be at risk of ill - treatment . The court therefore concluded that the evidence fell well short of establishing substantial grounds for believing that the applicants would face a real risk of treatment contrary to LAW if transferred into the custody of the ORG .

ORG concluded that the proposed transfer would be lawful and it dismissed the claim for judicial review , but added :

R(B ) v. Secretary of ORG , as we have understood the judgment of ORG in that case . ... ”

The Divisional Court granted the applicants leave to appeal to ORG and , on DATE , granted an interim injunction prohibiting their transfer until TIME on DATE to allow an application for interim relief to be made to ORG .

The applicants appealed against ORG judgment , principally on the grounds that ( CARDINAL ) the court had erred in concluding that there was a relevant public international - law context which could have the effect of modifying the principle in PERSON ( cited above ) ; ( CARDINAL ) even if the court had applied the right test , it had been wrong to hold that the death penalty and execution were not contrary to internationally accepted norms ; ( CARDINAL ) LAW and international law prevented transfer in circumstances where substantial grounds had been shown for believing there to be a real risk of the applicants being condemned to death by hanging ; ( CARDINAL ) it was incorrect to conclude that any GPE jurisdiction to try the applicants either did not exist or was subordinate to NORP claims ; ( CARDINAL ) the court had applied the incorrect test in respect of the ORG claims concerning the fairness of any trial before the ORG ; and ( CARDINAL ) the court had erred in concluding that the evidence before it did not establish substantial grounds for believing there to be a real risk that the ORG trial would involve a flagrant breach of the principles guaranteed by LAW .

On DATE ORG directed that the full appeal hearing would take place on DATE . It made an injunction prohibiting the applicants’ transfer before TIME on DATE .

Among the evidence placed before ORG was a further statement by PERSON concerning the ongoing negotiations with GPE . He explained , inter alia , that the question of NORP forces being permitted to exercise detention powers in GPE had been expressly rejected by GPE in the course of the negotiations :

“ In the course of discussions on DATE , NORP officials made clear that , even in relation to any proposed authorised tasks , they did not consider it acceptable for GPE forces to exercise detention powers after DATE .

It remains my firm and considered view that , in all the circumstances , there is no likelihood of the GPE being able to secure any agreement from the NORP authorities that we may continue to hold the claimants either indefinitely or pending the outcome of this litigation . Further , as I said in my first witness statement , even raising the issue would risk adversely affecting the conduct and outcome of the current negotiations . ”

ORG dismissed the appeal at TIME on DATE , with the following short oral reasons .

“ ( i ) On the facts GPE is not exercising jurisdiction over the appellants within the meaning of ORG , LAW . See in particular PERSON v. GPE ( DATE ) CARDINAL BHRC CARDINAL . In essence GPE detains the appellants only at the request and to the order of the ORG , and is obliged to return them to the custody of the ORG by force of arrangements made between GPE and GPE , and GPE has no discretionary power of its own to hold , release or return the appellants . They are acting purely as agents of the ORG .

( ii ) R(B ) v. Secretary of ORG for Foreign and Commonwealth Affairs [ DATE ] CARDINAL shows that an obligation of this kind to return persons to the host ORG has to be respected , albeit that the holding ORG in question is subject to ORG obligations , unless – paragraph DATE to return the appellants would expose them to a crime against humanity . We are bound by that decision , being a decision of this court .

( iii ) Neither the death penalty generally , nor the death penalty by hanging , is shown to be a crime against humanity or an act of torture .

( iv ) Accordingly , even if GPE is exercising LAW , contrary to our opinion , it is obliged to return the appellants to the custody of the ORG . That is so before DATE ; a fortiori after DATE , when there will be no ORG mandate , no provision as between GPE and GPE granting inviolability to the NORP base or allowing for any detention of the appellants by the GPE forces , save to the order of the ORG . In short , GPE will have no colour of legal power whatever after DATE to do anything other than return the appellants to the order of the ORG . There will be no power to move the appellants anywhere else , nor indeed to prevent the NORP taking the appellants from NORP custody . NORP troops could not be ordered to take any steps to prevent that happening . Before DATE it is true that the base at GPE is inviolable under local arrangements made between GPE and GPE , but that inviolability ceases DATE . That is why GPE is thereafter entirely legally powerless to take action other than in compliance with the wishes of the ORG or to resist any action taken by the NORP authorities .

( v ) No freestanding claim against GPE under customary international law can run , nor is there on the facts any viable claim under ORG , LAW . ”

DATE . ORG refused the applicants permission to appeal to ORG , stating that :

“ Certainly there are some important issues that have been raised but in the context of this case , having regard to the position that obtains post-CARDINAL DATE , it would not be right to grant permission . ”

ORG also refused to grant the applicants interim relief pending either an application to ORG for permission to appeal and for interim relief , or to this ORG for interim measures . Shortly after TIME ORG lifted the injunction which had prevented the applicants’ transfer until TIME on DATE .

ORG handed down its full written judgment on DATE ( [ DATE ] EWCA Civ CARDINAL ) . It found , firstly , that there were substantial grounds for believing that the applicants would face a real risk of execution if they were transferred to the custody of the ORG , for the following reasons .

“ It is common ground that the death penalty is a punishment available under NORP law for the offences with which the appellants are charged . ORG held ( paragraph CARDINAL ) that that was enough to give rise prima facie to a real risk of its being applied to the appellants . Accordingly , following the approach commended by ORG in GPE v. GPE ( application no . DATE , judgment of CARDINAL DATE ) , in particular at paragraph CARDINAL , the burden effectively shifted to the Secretary of ORG to show that such a risk was not in fact made out .

Mr PERSON for the Secretary of ORG relied on evidence to the effect that the family of one of the victims had written to President PERSON of the ORG to seek clemency for the appellants if they were found guilty . President PERSON had earlier invited letters of this kind through the NORP embassy , indicating that it would be helpful if the embassy could waive claims to civil compensation and that he would then pass such letters to the trial chamber for their consideration . PERSON , Legal Adviser and Head of the Justice and Human Rights Section at the NORP embassy in GPE , has given evidence of legal advice to the effect that the impact of a plea of clemency by the families of the victims in GPE is likely to be that the NORP court ‘ will not impose the death penalty in any particular ORG . PERSON says that President PERSON has confirmed that such a plea for clemency is likely to be an important factor for any court in assessing what sentence would be imposed on the claimants . She also produces a letter from President PERSON , given to her at a meeting on DATE , in which the court ’s procedures for considering sentence are described in some detail . ORG observed ( paragraph CARDINAL ) :

‘ That letter represents President PERSON ’s considered written position . It is striking that the letter gives no indication whatsoever that the death penalty would not be or even probably would not be imposed.’

PERSON relied on the evidence of PERSON , an NORP attorney who was LAW to the ORG DATE and DATE . Mr ORG had also met President PERSON , on DATE . The President explained the factors which would influence the ORG against imposing a death sentence . These were ‘ an admission of the crime by the claimants , a request for forgiveness from the family of the victims , a request for forgiveness of the court for the acts , and a request for leniency from the family of a victim’ ( ORG , paragraph CARDINAL ) . Mr Spillers reported the President as indicating that an assurance that the death penalty would not be imposed was ‘ implicit’ in his account of these factors .

Mr PERSON has provided a further statement since ORG judgment was delivered . He describes the outcome of the ORG proceedings in what has been called the DATE Uprising case . The CARDINAL defendants were all former high - ranking members of PERSON regime charged with crimes against humanity . CARDINAL were acquitted . CARDINAL received very substantial terms of imprisonment . Only the remaining CARDINAL were sentenced to death , including CARDINAL ( ‘ ORG Ali’ ) who was already under sentence of death following an earlier trial .

In my judgment there is no sufficient basis for departing from the balanced assessment of ORG on this point . Mr Spillers’ new evidence concerning the DATE Uprising case , while helpful to the Secretary of ORG , is not so substantial as to overturn the lower court ’s conclusion . The real risk test is satisfied . ”

In support of its conclusion that the applicants did not fall within GPE jurisdiction for the purposes of the Convention and LAW DATE , ORG observed as follows .

Until DATE the GPE forces at GPE enjoyed the guarantees of immunity and inviolability provided by CPA Order No . CARDINAL ( Revised ) . But those measures prohibited invasive sanctions ; they did not confer executive power . In my judgment , from DATE until DATE , the NORP forces at GPE were not entitled to carry out any activities on GPE ’s territory in relation to criminal detainees save as consented to by GPE , or otherwise authorised by a binding resolution or resolutions of ORG . So much flows from the fact of GPE ’s sovereignty and is not contradicted – quite the reverse – by any of ORG measures in the case . Thus the ORG mandate was extended by ORG at GPE ’s express request . The letter requesting its extension ( which was attached to LAW ( DATE ) ) expressly stated at paragraph CARDINAL , ‘ [ CARDINAL government of GPE will be responsible for arrest , detention and imprisonment ORG . The various material ORG ( DATE ) , DATE ) and DATE ( DATE ) ) all emphasise the primacy of NORP sovereignty . As regards criminal detentions , CPA Memorandum No . CARDINAL ( Revised ) makes it [ plain ] that so far as criminal detainees may be held by any national contingent of the ORG , they are held , in effect , to the order of the NORP authorities .

In these circumstances GPE was not before DATE exercising any power or jurisdiction in relation to the appellants other than as agent for the NORP court . It was not exercising , or purporting to exercise , any autonomous power of its own as a sovereign ORG .

As I stated earlier , once the mandate expired there remained under international law no trace or colour of any power or authority whatever for the ORG , or any part of it , to maintain any presence in GPE save only and strictly at the will of the NORP authorities . [ Counsel for the applicants ] sought to submit that the NORP base at GPE would by force of customary international law remain inviolable after DATE . But she was unable to identify any principle which might , on the facts , support that position ; and it is to my mind wholly inescapable that after that date NORP forces remaining in GPE have done so only by consent of the NORP authorities and on such terms as those authorities have agreed . And it must have been plain , as soon as it was known when the mandate would come to an end , that this would be the true state of affairs .

And there is no sensible room for doubt but that the terms on which NORP forces would be permitted to remain in GPE by the NORP authorities would not encompass any role or function which would permit , far less require , NORP ( or any other ) forces to continue to hold detainees . ...

After DATE NORP forces enjoyed no legal power to detain any NORP . Had they done so , the NORP authorities would have been entitled to enter the premises occupied by the NORP and recover any such person so detained .

It is not easy to identify precisely the scope of the LAW where it is said to be exercised outside the territory of the impugned ORG , because the learning makes it clear that its scope has no sharp edge ; it has to be ascertained from a combination of key ideas which are strategic rather than lexical . Drawing on the PERSON judgment and their Lordships’ opinions in PERSON , I suggest that there are CARDINAL core propositions , though each needs some explanation . ( CARDINAL ) It is an exceptional jurisdiction . ( CARDINAL ) It is to be ascertained in harmony with other applicable norms of international law . ( CARDINAL ) It reflects the regional nature of the Convention rights . ( CARDINAL ) It reflects the indivisible nature of the Convention rights . The first and second of these propositions imply ( as perhaps does the term jurisdiction itself ) an exercise of sovereign legal authority , not merely de facto power , by CARDINAL ORG on the territory of another . That is of itself an exceptional state of affairs , though well recognised in some instances such as that of an embassy . The power must be given by law , since if it were given only by chance or strength its exercise would by no means be harmonious with material norms of international law , but offensive to them ; and there would be no principled basis on which the power could be said to be limited , and thus exceptional . ... It is impossible to reconcile a test of mere factual control with the limiting effect of the first CARDINAL propositions I have set out , and , indeed , that of DATE , as I shall explain .

These first CARDINAL propositions , understood as I have suggested , condition the others . If ORG is to exercise LAW outside its own territory , the regional and indivisible nature of the Convention rights requires the existence of a regime in which that ORG enjoys legal powers wide enough to allow its vindication , consistently with its obligations under international law , of the panoply of Convention rights – rights which may however , in the territory in question , represent an alien political philosophy .

The ORG ’s natural setting is the espace juridique of the GPE Parties ; if , exceptionally , its writ is to run elsewhere , this FAC juridique must in considerable measure be replicated . In short ORG must have the legal power to fulfil substantial governmental functions as a sovereign ORG . It may do so within a narrow scope , as an embassy , consulate , military base or prison ; it may , in order to do so , depend on the host ORG ’s consent or the mandate of ORG ; but however precisely exemplified , this is the kind of legal power the ORG must possess : it must enjoy the discretion to decide questions of a kind which ordinarily fall to the ORG ’s executive government . If the LAW is held to run in other circumstances , the limiting conditions imposed by the CARDINAL propositions I have set out will be undermined . ”

ORG also considered the question of conflicting international - law obligations , which arose only if it was wrong about the lack of jurisdiction , and held that ORG had been correct in having regard to GPE obligation under international law to transfer the applicants to the custody of the ORG :

“ CARDINAL . ... ORG to the ORG , exercising LAW in a foreign territory , may certainly owe duties arising under international law to the host ORG . LAW [ on ORG , DATE ] , referred to in R(B ) at paragraph CARDINAL , offers an obvious platform for such a potential duty . In this case GPE was plainly obliged under international law to transfer the applicants pursuant to the ORG ’s request . In such instances , there may be a conflict between ORG obligations and its international obligations .

One solution might have been to hold that the existence of such an international obligation is incompatible with the exercise of LAW , because it would show that ORG legal power in the relevant foreign territory lacked the amplitude required to guarantee the Convention rights . In that case there would be no conflict . Such a comfort would of course be no comfort to the appellants – the duty to transfer them would without more negative the ORG jurisdiction , so that they would enjoy no Convention rights . However , such an outcome would , I think , have been consistent with PERSON ; but this is not the direction our courts have taken . Both PERSON and R(B ) recognise that a ORG may be fixed with potentially inconsistent obligations arising under the ORG and international law respectively .

With great respect I see no reason to doubt this position . While I have certainly asserted that the scope of the LAW has to accommodate the pressure on GPE Parties of international obligations apart from the ORG , it by no means follows that the ORG duty must always yield to the other obligation , so that no conflict can arise . No doubt it will be a matter for assessment in any case ( where the issue sensibly arises ) whether the international - law obligations are so pressing , or operate on so wide a front , as in effect to deprive the relevant ORG of the espace juridique which the LAW demands . They may not do so ; and where they do not , this court ’s decision in R(B ) shows the correct juridical approach . ”

ORG rejected the applicants’ argument , based on GPE v. GPE ( [ ORG ] , no . CARDINAL , ORG CARDINAL-IV ) , that where the proposed refoulement was to a ORG where after the trial the applicant might suffer the death penalty , no flagrant breach of the right to a fair trial under LAW needed to be shown , only a real risk of an unfair trial . The court observed that Öcalan was not a refoulement case and that in PERSON and GPE v. GPE ( no . CARDINAL , ORG CARDINAL-XI ) , the ORG had held that it was necessary in a deportation or extradition case for the applicant to establish a risk of suffering a flagrant denial of a fair trial in the receiving ORG , the outcome of which was or is likely to be the death penalty , before the ORG could find a violation of LAW . ORG accepted ORG assessment of the evidence about the fairness of proceedings before the ORG and therefore also dismissed the complaint under LAW .

Finally , ORG rejected the ORG argument under international law that execution by hanging fell to be regarded as a crime against humanity , inhuman or degrading treatment or a form of torture . While terrible errors occurred from time to time , where for example the hanged man ’s neck was not broken so that he suffocated , or the drop was too long so that he was decapitated , such evidence was anecdotal and partial . There was other evidence , such as that considered by ORG , in its report of DATE , which found that hanging was “ speedy and certain ” . The court concluded that , since the evidence before it regarding this method of execution was very limited , it was in no position to arrive at any overall finding as to the effects of hanging for the purpose of making an assessment of its compatibility or otherwise with norms of customary international law .

NORP The applicants’ lawyers contacted ORG DATE but were advised that ORG would be closed DATE and New Year period and would not reopen until DATE .

DATE . On DATE the ORG request for legal aid to petition ORG was refused , primarily on the basis that the transfer ( see paragraph CARDINAL below ) meant that no effective remedy would be available .

On DATE the applicants lodged a petition for leave to appeal with ORG . It was refused on DATE .

On DATE , prior to ORG hearing on interim relief , the applicants lodged an urgent application for interim measures under LAW of ORG . The Government made written representations to the ORG as to why the applicants’ application should not be granted , copies of which were provided to the applicants .

Shortly after being informed of the ruling of ORG on DATE , the ORG gave an indication under Rule DATE , informing the Government that the applicants should not be removed or transferred from the custody of GPE until further notice .

The applicants were transferred into the physical custody of the NORP authorities and admitted to PERSON on DATE .

On TIME , the Government informed the ORG and the ORG solicitors that the applicants had been transferred . In their letter to ORG stated :

“ ... the Government took the view that , exceptionally , it could not comply with the measure indicated by the ORG ; and further that this action should not be regarded as a breach of LAW in this case . The Government regard the circumstances of this case as wholly exceptional . It remains the Government policy to comply with Rule CARDINAL measures indicated by the ORG as a matter of course where it is able to do so . ”

In accordance with assurances given by ORG in DATE and DATE , the applicants were initially held at FAC , Compound CARDINAL . In DATE they were transferred to Compound CARDINAL of the same prison .

On DATE PERSON ( Legal Adviser at the NORP embassy in GPE ) reminded President PERSON of his previous statements on the death penalty .

The PERSON trial before the ORG commenced on CARDINAL DATE . Each was represented by an NORP lawyer . The applicants were originally charged with killing the CARDINAL NORP soldiers when they had clearly surrendered , an offence carrying a maximum penalty of the death sentence .

On DATE this ORG declared the application admissible and put further questions to the parties ( see paragraphs CARDINAL - CARDINAL above ) . In particular , it requested ORG to inform it of the representations , if any , which had been made to the NORP authorities since the time of the applicants’ transfer with a view to ensuring that they would not be subjected to the death penalty if convicted .

On DATE , after the close of the evidence in the case , the prosecution read CARDINAL letters to the trial chamber of the ORG . The first , dated DATE , was from the ORG conveying their opposition to the death penalty and enclosing the letter received in DATE from the family of CARDINAL of the murdered soldiers ( see paragraphs CARDINAL and DATE above ) . The second letter was from the sister of the other soldier , with whom the Government had made contact , also asking for clemency for the defendants . The Chief Trial Judge then read out a statement of charges against each applicant . The charges had been reduced from killing the soldiers to negligently handing them over to other ORG officials who killed them , instead of protecting them and sending them for medical treatment as required by LAW ( I ) for DATE Wounded in Armies in FAC DATE . This charge did not carry a death sentence .

At the next hearing , on DATE , a further charge was added , namely torture or inhuman treatment of the soldiers , contrary to LAW . According to LAW and CARDINAL § § DATE of PERSON no . ( DATE on ORG , the penalty for this offence “ shall be determined by the court taking into account the gravity of the crime as well as the individual circumstances , judicial precedents and relevant sentences issued by international criminal courts ” . The Government informed the ORG by a letter of DATE that the President of the trial chamber had informed a NORP official in GPE that “ [ i]n his view , a death sentence was not the appropriate penalty in this case ” .

On DATE the ORG gave its verdict . It decided to cancel the charges against the applicants , due to insufficient evidence , and ordered their immediate release . Shortly thereafter the prosecutor lodged an appeal against this decision to ORG .

By a letter of CARDINAL DATE , the Government informed ORG that ORG had decided that the investigation had been incomplete and had ordered that the case be remitted for reinvestigation by the NORP authorities and retrial . The applicants remain in custody .

The LAW provides , inter alia :

“ Protected persons are entitled , in all circumstances , to respect for their persons , their honour , their family rights , their religious convictions and practices , and their manners and customs . They shall at all times be humanely treated , and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity .

Women shall be especially protected against any attack on their honour , in particular against rape , enforced prostitution , or any form of indecent assault .

Without prejudice to the provisions relating to their state of health , age and sex , all protected persons shall be treated with the same consideration by the ORG to the conflict in whose power they are , without any adverse distinction based , in particular , on race , religion or political opinion .

However , the Parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war . ”

“ Should the Power , in whose hands protected persons may be , consider the measures of control mentioned in the present Convention to be inadequate , it may not have recourse to any other measure of control more severe than that of assigned residence or internment , in accordance with the provisions of ORG DATE and CARDINAL .

“ The internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary .

If any person , acting through the representatives of ORG , voluntarily demands internment , and if his situation renders this step necessary , he shall be interned by ORG in whose hands he may be . ”

“ Protected persons shall not be arrested , prosecuted or convicted by the Occupying Power for acts committed or for opinions expressed before the occupation , or during a temporary interruption thereof , with the exception of breaches of the laws and customs of war . ... ”

“ Protected persons who have been accused of offences or convicted by the courts in occupied territory , shall be handed over at the close of occupation , with the relevant records , to the authorities of the liberated territory . ”

“ If the Occupying Power considers it necessary , for imperative reasons of security , to take safety measures concerning protected persons , it may , at the most , subject them to assigned residence or to internment . ... ”

This statute was enacted to give effect in GPE domestic law to the provisions of the DATE LAW . It provides , inter alia :

“ CARDINAL(CARDINAL ) Any person , whatever his nationality , who , whether in or outside GPE , commits , or aids , abets or procures the commission by any other person of a grave breach of any of the scheduled conventions or the first protocol shall be guilty of an offence . ”

The term “ grave breach ” is defined in each of the LAW of DATE and in Additional Protocol I as certain acts ( including wilful killing , torture or inhuman treatment , wilfully causing great suffering or serious injury to body or health , extensive destruction and appropriation of property , not justified by military necessity and carried out unlawfully and wantonly , wilfully depriving a prisoner of war or a civilian of the rights of fair and regular trial ) committed against “ protected persons ” ( as defined precisely in each Convention ) , including prisoners of war , civilians and the wounded .

NORP The purpose of ORG ( JDP ) CARDINAL “ Prisoners of War , Internees and Detainees ” ( DATE ) is as follows :

“ CARDINAL . ... to provide high - level joint doctrinal guidance on how to deal with persons who fall into the hands of ORG during military operations , whether Prisoners of War ( PW ) , civilian internees or those detained as a result of suspected or actual criminal activity .

This Edition of JDP CARDINAL - CARDINAL is written primarily for the benefit of GPE operational Commander responsible for GPE Forces’ compliance with domestic GPE law , international law and ORG ) . It should prove useful to those involved in operational planning when the issues covered in this publication may arise . It is also intended to assist those responsible for all aspects of force protection and area security , personnel whose duties involve liaison with local civil authorities , ORG ( ORG ) , ORG , ORG ) ) , ORG Governmental Organisations ( NGOs ) and ORG ( IOs ) , such as ORG ( ICRC ) . ”

LAW CARDINAL - CARDINAL.CARDINAL “ Detainees ” ( DATE ) concerns the handling of detainees . It commences by stating as follows ( footnotes omitted ) :

“ CARDINAL . ORG may be empowered under ORG ( ORG ) law to participate in the arrest of criminal suspects or may be involved in the arrest of persons indicted for war crimes . This chapter details the arrangements for the handling of such persons when they are being temporarily detained by ORG during military operations abroad that do not amount to ORG .

Detainees are a category of prisoner distinct from PW and internees . Detainees are those individuals who , during operations abroad not amounting to ORG , are held by ORG because they have committed , or are suspected of committing , criminal offences .

Detainees are a category of prisoner who can only be held during operations other than ORG . It should be noted that , during ORG , those who have committed or are suspected of committing criminal offences are categorised and treated as internees .

The provisions for the handling of detainees will vary according to the national laws of the territory in which ORG are operating , the nature of the operation and the legal framework under which ORG are operating . This is a complex area and specialist staff and policy advice will invariably be called for at the earliest stages of planning .

Detainees should be handed over to the appropriate local authorities at the earliest opportunity , provided that there is no reason to believe they will suffer abuses of their human rights . ”

Section IV of JDP CARDINAL - CARDINAL.CARDINAL is entitled “ Transfers ” and states :

“ CARDINAL . Except for their repatriation or return to their country of residence after the cessation of hostilities , detainees must not be transferred to a ORG that is not a party to the GCs [ LAW ] . Moreover , they may only be transferred to a State that is a party if the detaining ORG has satisfied itself that the receiving ORG is willing and able to apply the GCs . In the event of transfers taking place , the receiving ORG becomes responsible for the application of the GCs . Should that ORG fail to carry out its obligations in any important respect , it is the duty of the ORG which made the transfer either to take effective measures to correct the situation or to request the return of the persons affected . ... In no circumstances may a detainee be transferred to a ORG where he has reason to fear persecution on account of his political opinions or religious beliefs .

It should be borne in mind that the application of LAW to those held in GPE facilities in some circumstances may impose additional restrictions on their transfer , in particular if they are likely to be tried for an offence which carries the death penalty . ”

Section V of JDP CARDINAL - CARDINAL.CARDINAL deals with “ Handover to the ORG ” . It provides :

“ CARDINAL . Detainees must be handed over to the ORG authorities as soon as practicable in order that detainees can be dealt with according to the local criminal justice system . ...

There may be cases where handover to the ORG can not take place immediately :

a. If the ORG lacks sufficient criminal justice infrastructure to take custody of the detainee , for example , courts , police , custodial facilities and lawyers .

b. If there are reasonable grounds to suspect the handover would compromise the safety of the detainee . ”

Article CARDINAL of LAW of DATE provides :

“ CARDINAL . Without prejudice to their privileges and immunities , it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving ORG . They also have a duty not to interfere in the internal affairs of that ORG .

All official business with the receiving ORG entrusted to the mission by the sending ORG shall be conducted with or through ORG of the receiving ORG or such other ministry as may be agreed .

The LOC of the mission must not be used in any manner incompatible with the functions of the mission as laid down in the present LAW or by other rules of general international law or by any special agreements in force between the sending and the receiving ORG . ”

In R(B ) v. Secretary of ORG for Foreign and Commonwealth Affairs , cited above , ORG observed as follows :

“ In a case such as ORG commits no breach of international law by permitting an individual to remain within its territorial jurisdiction rather than removing him to another ORG . The same is not necessarily true where a ORG permits an individual to remain within the shelter of consular LOC rather than requiring him to leave . It does not seem to us that the LAW can require GPE 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 FAC attached in GPE to principles of international law . Furthermore , there must be an implication that obligations under a Convention are to be interpreted , insofar as possible , in a manner that accords with international law . What has public international law to say about the right to afford ‘ diplomatic PERSON ?

Oppenheim [ ORG ’s International Law edited by the late Sir PERSON and Sir PERSON vol CARDINAL ] deals with this topic at paragraph CARDINAL , from which we propose to quote at a little length :

‘ Paragraph CARDINAL : So - called diplomatic asylum

The practice of granting diplomatic asylum in exceptional circumstances is of long - standing , but it is a matter of dispute to what extent it forms part of general international law .

There would seem to be no general obligation on the part of the receiving ORG to grant an ambassador the right of affording asylum to a refugee , whether criminal or other , not belonging to this mission . Of course , an ambassador need not deny entrance to refugees seeking safety in the embassy . But as ORG noted in the ORG case ... in the absence of an established legal basis , such as is afforded by treaty or established custom , a refugee must be surrendered to the territorial authorities at their request and if surrender is refused , coercive measures may be taken to induce it . Bearing in mind the inviolability of embassy LOC , the permissible limits of such measures are not clear . The embassy may be surrounded by soldiers , and ingress and egress prevented ; but the legitimacy of forcing an entry in order forcibly to remove the refugee is doubtful , and measures involving an attack on the envoy ’s person would clearly be unlawful . Coercive measures are in any case justifiable only in an urgent case , and after the envoy has in vain been requested to surrender the refugee .

It is sometimes suggested that there is , exceptionally , a right to grant asylum on grounds of urgent and compelling reasons of humanity , usually involving the refugee ’s life being in imminent jeopardy from arbitrary action . The practice of GPE has afforded instances of the grant of asylum in such circumstances . The grant of asylum ‘ against the violent and disorderly action of irresponsible sections of the population’ is a legal right which , on grounds of humanity , may be exercised irrespective of treaty ; the territorial authorities are bound to grant full protection to a diplomatic mission providing shelter for refugees in such circumstances . There is some uncertainty how far compelling reasons of humanity may justify the grant of asylum in other cases . ORG judgment in the ORG case suggests that the grant of asylum may be justified where ‘ in the guise of justice , arbitrary action is substituted for the rule of law . Such would be the case if the administration of justice were corrupted by measures clearly prompted by political ORG . However , the ORG went on to emphasise that ‘ the safety which arises out of asylum can not be construed as a protection against the regular application of the laws and against the jurisdiction of legally constituted ORG . Thus it would seem not to be enough to show that a refugee is to be tried for a ‘ political’ offence : it must be shown that justice would be subordinated to political dictation and the usual judicial guarantees disregarded . Even where permissible , asylum is only a temporary expedient and may only be afforded so long as the reasons justifying it continue to subsist.’

The propositions in ORG are based , to a large extent , on what seem to be the only juridical pronouncements on the topic to carry authority . On DATE ORG gave judgment in a dispute between GPE and GPE that GPE had referred to ORG GPE ) ( DATE ) ICJ Rep. CARDINAL . GPE had given refuge in its embassy in GPE to the leader of a military rebellion , which had been almost instantaneously suppressed . At issue was the effect of CARDINAL Conventions to which both GPE and GPE were party which made provision in relation to the grant of asylum to political refugees but not to criminals . GPE ’s arguments included the contention that by customary international law it was open to GPE unilaterally to determine that the fugitive fell to be classified as a political refugee . Much of the judgment related to the effects of the CARDINAL Conventions , but the ORG made some general comments in relation to ‘ diplomatic asylum’ :

‘ The arguments submitted in this respect reveal a confusion between territorial asylum ( extradition ) , on the one hand , and diplomatic asylum , on the other .

In the case of extradition , the refugee is within the territory of the ORG of refuge . A decision with regard to extradition implies only the normal exercise of the territorial sovereignty . The refugee is outside the territory of the ORG where the offence was committed , and a decision to grant him asylum in no way derogates from the sovereignty of that ORG .

In the case of diplomatic asylum , the refugee is within the territory of the ORG where the offence was committed . A decision to grant diplomatic asylum involves a derogation from the sovereignty of that ORG . It withdraws the offender from the jurisdiction of the territorial ORG and constitutes an intervention in matters which are exclusively within the competence of the ORG . Such a derogation from territorial sovereignty can not be recognised unless its legal basis is established in each particular ORG

In DATE CARDINAL fugitives who were subject to detention orders issued by the NORP government sought refuge in FAC in GPE . They became known as the GPE CARDINAL . ORG decided that it would not compel them to leave but that it would not intervene on their behalf with the NORP authorities . They were told that they could not stay indefinitely and , eventually they left . CARDINAL of them were immediately arrested and charged with high treason , which carried the death penalty . We were referred to an LAW ( CARDINAL ) by PERSON , which included the following propositions :

‘ There exists no universally accepted international agreement to assure a uniform response by ORG to grant refuge in a mission in an emergency . Most countries , with the exception of those in LOC , deny outright the claim to diplomatic asylum because it encroaches upon the ORG ’s sovereignty .

Some countries give limited recognition to the practice , allowing ‘ temporary safe stay’ on a case - by - case basis to persons under threat of life and limb . It should be recognised that a ORG has the permissible response of granting temporary sanctuary to individuals or groups in utter desperation who face repressive measures in their home countries . Moreover , this should be considered a basic human right , to be invoked by those fleeing from the persecution for reasons of race , religion , or nationality , or for holding a political opinion in an emergency situation involving the threat of ORG

Discussion

We have concluded that , if the PERSON 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 ORG requests that the fugitive be handed over the situation is very different . The basic principle is that the authorities of the receiving ORG can require surrender of a fugitive in respect of whom they wish to exercise the authority that arises from their territorial jurisdiction ; see LAW . Where such a request is made the LAW can not normally require the diplomatic authorities of the sending ORG to permit the fugitive to remain within the diplomatic LOC in defiance of the receiving ORG . Should it be clear , however , that the receiving ORG 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 ORG to do all that is reasonably possible , including allowing the fugitive to take refuge in the diplomatic LOC , 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 .

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 NORP law was concerned , the applicants had escaped from lawful detention under the provisions of LAW . On the face of it international law entitled the NORP authorities to demand their return . We do not consider that the GPE officials could be required by the ORG and LAW 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 . ”

At its meeting on DATE , ORG adopted the text of LAW No . CARDINAL to the LAW and authorised the publication of the following explanatory report ( footnotes omitted ) :

“ CARDINAL . The right to life , ‘ an inalienable attribute of human PERSON and ‘ supreme value in the international hierarchy of human PERSON is unanimously guaranteed in legally binding standards at universal and regional levels .

When these international standards guaranteeing the right to life were drawn up , exceptions were made for the execution of the death penalty when imposed by a court of law following a conviction of a crime for which this penalty was provided for by law ( cf . , for example , LAW of LAW ... ) .

NORP However , as illustrated below , there has since been an evolution in domestic and international law towards abolition of the death penalty , both in general and , more specifically , for acts committed in time of war .

At the NORP level , a landmark stage in this general process was the adoption of LAW No . CARDINAL to the LAW in DATE . This LAW , which to date has been ratified by almost all GPE Parties to the LAW , was the first legally binding instrument in LOC – and in the world DATE which provided for the abolition of the death penalty in time of peace , neither derogations in emergency situations nor reservations being permitted . Nonetheless , under LAW , ‘ A ORG may make provision in its law for the death penalty in respect of acts committed in time of war or of imminent threat of war’ . However , according to the same LAW , this possibility was restricted to the application of the death penalty in instances laid down in the law and in accordance with its provisions .

Subsequently , ORG established a practice whereby it required from GPE wishing to become a member of ORG that they committed themselves to apply an immediate moratorium on executions , to delete the death penalty from their national legislation , and to sign and ratify LAW No . CARDINAL . ORG also put pressure on countries which failed or risked failing to meet the commitments they had undertaken upon accession to ORG . More generally , the ORG took the step in DATE of inviting all member GPE who had not yet done so , to sign and ratify LAW No . CARDINAL without delay ( Resolution CARDINAL ( DATE ) on the abolition of capital punishment ) .

This fundamental objective to abolish the death penalty was also affirmed by LAW of member ORG GPE , DATE ) . In LOC , the Heads of State and Government called for the ‘ universal abolition of the death penalty and [ insisted ] on the maintenance , in the meantime , of existing moratoria on executions in Europe’ . For its part , ORG has indicated that it ‘ shares ORG strong convictions against recourse to the death penalty and its determination to do all in its power to ensure that capital executions cease to take place’ . ORG subsequently adopted a Declaration ‘ For a NORP Death Penalty - Free Area’ .

In the meantime , significant related developments in other fora had taken place . In DATE , ORG adopted ‘ Guidelines to EU Policy Toward Third Countries on the Death Penalty’ which , inter alia , state its opposition to this penalty in all cases . Within the framework of ORG , a LAW to LAW , aiming at the abolition of the death penalty , was adopted in DATE . For DATE , ORG has regularly adopted ORG which call for the establishment of moratoria on executions , with a view to completely abolishing the death penalty . It should also be noted that capital punishment has been excluded from the penalties that ORG and ORG for the Former GPE and GPE are authorised to impose .

The specific issue of the abolition of the death penalty also in respect of acts committed in time of war or of imminent threat of war should be seen against the wider background of the above - mentioned developments concerning the abolition of the death penalty in general . It was raised for the first time by ORG in Recommendation CARDINAL ( DATE ) , in which it recommended that ORG draw up an additional protocol to the LAW , abolishing the death penalty both in peace- and in wartime .

While ORG ) , by a large majority , was in favour of drawing up such an additional protocol , ORG at the time considered that the political priority was to obtain and maintain moratoria on executions , to be consolidated by complete abolition of the death penalty .

A significant further step was made at ORG , held in GPE on DATE on the occasion of the CARDINALth anniversary of the Convention , which pronounced itself clearly in favour of the abolition of the death penalty in time of war . In Resolution II adopted by the Conference , the few member GPE that had not yet abolished the death penalty nor ratified LAW . CARDINAL were urgently requested to ratify this LAW as soon as possible and , in the meantime , respect strictly the moratoria on executions . In the same ORG , the Conference invited ORG ‘ to consider the feasibility of a new additional protocol to the LAW which would exclude the possibility of maintaining the death penalty in respect of acts committed in time of war or of imminent threat of war’ ( paragraph CARDINAL of Resolution II ) . The Conference also invited member GPE which still had the death penalty for such acts to consider its abolition ( ibidem ) .

In the light of texts recently adopted and in the context of ORG consideration of the follow - up to be given to ORG , ORG presented a proposal for an additional protocol to LAW at the CARDINAL meeting of ORG ( DATE ) . The proposed protocol concerned the abolition of the death penalty in time of war as in time of peace .

At their PERSON meeting ( DATE ) , ORG instructed the CDDH ‘ to study the NORP proposal for a new protocol to the Convention ... and submit its views on the feasibility of a new protocol on this matter’ .

The CDDH and its ORG for ORG ) elaborated the draft protocol and the explanatory report thereto in the course of DATE . The CDDH transmitted the draft protocol and explanatory report to ORG on DATE . The latter adopted the text of the LAW on DATE at the ORG meeting of ORG and opened it for signature by member ORG on DATE . ”

On DATE PACE adopted the following resolution on the “ Promotion by ORG member ORG of an international moratorium on the death penalty ” :

“ CARDINAL . ORG confirms its strong opposition to the death penalty in all circumstances . The death penalty is the ultimate form of cruel , inhuman and degrading punishment : it violates the right to life . The ORG takes pride in its decisive contribution to making the member ORG death penalty - free zone , and strongly regrets the fact that CARDINAL NORP country – GPE – still carries out executions .

The ORG has also on several occasions taken a strong stand against executions in other parts of the world , and in particular in ORG GPE which retain the death penalty , namely GPE and GPE .

It notes with satisfaction that the death penalty is on the decline worldwide , as shown by a PERCENT decrease in executions and death sentences DATE .

It also draws attention to the fact that PERCENT of known executions in DATE took place in CARDINAL countries : GPE , GPE , GPE , GPE , GPE , and GPE – a ORG observer ORG . Based on available public records , which may cause the number of executions to be underestimated in countries lacking free media or an accountable government , GPE alone accounts for CARDINAL of all executions worldwide . GPE ’s execution rate nearly doubled from DATE . GPE also witnessed a dramatic increase in executions in DATE , bringing the number up to CARDINAL . GPE , among the worst offenders in DATE , saw a decrease in DATE to CARDINAL executions , but witnessed an upsurge in DATE ( CARDINAL executions through to DATE ) .

The small number of countries that still resort to executions on a significant scale is becoming increasingly isolated in the international community . DATE , the number of abolitionist countries rose from CARDINAL . This number increases to CARDINAL when including those countries which have not carried out any executions for DATE or more and which can therefore be considered as abolitionist in practice . The time is now ripe to give new impetus to the campaign in favour of a death penalty - free world .

The ORG therefore strongly welcomes NORP efforts in ORG in advocating for a moratorium on the death penalty , as well as the support of ORG for this initiative , and expects it to be proceeded with in such a manner as to guarantee the best possible success within ORG .

A moratorium on executions is but CARDINAL step in the right direction , the ultimate goal remaining the complete abolition of the death penalty in all circumstances .

In the meantime , a moratorium is an important step as it saves lives immediately and has the potential of demonstrating to the public in retentionist countries that an end to ORG - sponsored killings does not lead to any increase in violent crime . On the contrary , a moratorium on executions can bring about a change of atmosphere in society fostering greater respect for the sanctity of human life , and thus contribute to reversing the trend towards ever - increasing hate and violence .

Finally , a universal moratorium on the death penalty represents a concrete and highly symbolic political act , which could help change an international climate which is all too often characterised by violent actions which take their victims – by no means exclusively in a context of conflict DATE from among civilian populations . A universal moratorium on the death penalty would also make a significant contribution to the establishment of a shared and operational body of principles and rules leading towards a more effective rule of law at international level .

The ORG calls on all member and observer GPE of ORG to actively support the initiative for the abolition of the death penalty in ORG and to make the best use of their influence in order to convince countries that are still on the sidelines to join in . In this context , it warmly welcomes the resolution in the same spirit , adopted by ORG on DATE , on the initiative for a universal moratorium on the death penalty .

At the GPE meeting of DATE , ORG and ORG ( ORG ) of ORG unanimously made a formal commitment to tabling DATE at the next session of ORG of the United Nations – a resolution calling for a moratorium on executions all over the world .

The ORG recalls that , whilst CARDINAL States have so far ratified LAW to LAW ( ORG ) , adopted by ORG in DATE to promote the universal abolition of the death penalty , CARDINAL ORG member and observer GPE have not yet done so , namely GPE , GPE , GPE , GPE ( observer ) , GPE , GPE ( observer ) , GPE ( signed but not ratified ) , GPE , GPE , and GPE ( observer ) . For countries which have de facto and de jure abolished the death penalty ( GPE , GPE , GPE , GPE , GPE ( observer ) , GPE and GPE ) , or which maintain a moratorium ( NORP Federation ) , the ratification of LAW to the ORG would be a valuable gesture of political support for abolition , and would contribute to further isolating the remaining retentionist countries .

ORG own instruments against the death penalty are also still lacking ratifications . In particular , Protocol No . CARDINAL to ORG concerning the abolition of the death penalty ( ORG . CARDINAL ) has still not been ratified by GPE , despite the commitment to do so undertaken upon its accession to ORG in DATE . Protocol No . CARDINAL to the Convention concerning the abolition of the death penalty in all circumstances ( ETS No . CARDINAL ) , including in time of war or imminent threat of war , has still not been signed by GPE and GPE , and has still not been ratified by GPE , GPE , GPE , GPE , GPE and GPE . For the sake of the strong and unified signal to be sent by ORG as a whole , the ORG calls on the countries concerned to sign and ratify these instruments without further delay .

The ORG notes in this context that GPE ’s ORG approved on DATE , in a second reading , the constitutional bill containing amendments to LAW concerning the abolition of the death penalty ; the bill is presently before the senate for its second reading and final adoption under the current procedure for constitutional revision . The bill aims to delete from LAW the following words : ‘ unless in the cases provided for by military laws in case of war’ , thus eliminating any reference to the death penalty in LAW and making it possible to ratify LAW . CARDINAL to the Convention .

Also , the ORG reiterates its view , noted in LAW ( DATE ) on the position of ORG as regards ORG member and observer GPE which have not abolished the death penalty , that the death penalty should be abolished in GPE , GPE and GPE , and that the sentences of all prisoners currently on death row in these territories should be immediately commuted to terms of imprisonment in order to put an end to the cruel and inhuman treatment of those who have been kept on death row for DATE in a state of uncertainty as to their ultimate fate .

The ORG fully supports the Conference to establish a NORP Day against the Death Penalty , to be held in GPE on DATE , and expects all member ORG also to show their unstinting support . Given its pioneering work on the abolition of the death penalty in LOC and beyond , the ORG must play a central role , including through involvement in the drafting of the joint declaration , which its President should co - sign at the inaugural conference . The ORG will stand ready to contribute to publicity and promotion , including through coordination of supporting events in member States’ national parliaments . ”

In GPE v. GPE ( Communication No . CARDINAL , ORG . ORG , DATE ) , ORG found that PERSON extradition to GPE , where he risked execution , gave rise to a violation by GPE of LAW ( ORG ) . ORG made the following request :

“ CARDINAL . ORG requests ORG to make such representations as might still be possible to avoid the imposition of the death penalty and appeals to ORG to ensure that a similar situation does not arise in the future . ”

In PERSON Judge v. GPE ( Communication No . DATE , ORG . ORG , DATE ) , the ORG found that PERSON Judge ’s deportation to GPE , where he had been sentenced to be executed , gave rise to violations by GPE of the ORG , and continued :

“ CARDINAL . Pursuant to LAW ( a ) of the LAW , the ORG concludes that the author is entitled to an appropriate remedy which would include making such representations as are possible to the receiving ORG to prevent the carrying out of the death penalty on the author . ”

In its judgment of DATE in LOC and Others , ORG for GPE found a number of violations of the Convention arising from the transfer of the claimants , who had been detained in GPE , to the custody of the GPE security services who subsequently removed them to FAC at FAC . ORG then ordered GPE , inter alia , to take all possible steps to prevent the death penalty from being pronounced against and executed on the applicants , including attempts to seek assurances from GPE via diplomatic contacts that the applicants would not be subjected to the death penalty .