Between the Devil and the Deep Blue Sea: Conflicted Thinking in the Al-Saadoon Affair

On 31 December 2008 British forces transferred two Iraqi citizens, Faisal Attiyah Nassar Al-Saadoon and Khalaf Hussain Mufdhi (the claimants), to the jurisdiction of the Iraqi High Tribunal (IHT). The decision to transfer was taken following the finding by both the Divisional Court and the Court of Appeal that the proposed transfer would be lawful, dismissing the claimants' claim for judicial review. In transferring the claimants, the United Kingdom violated a provisional measures order issued by the European Court of Human Rights (the ECtHR). The Secretary of State for Defence characterized United Kingdom compliance with such orders 'normally [as] a matter of course' but cited 'exceptional circumstances' in the present case: '[w]e cannot comply with requests to act in a manner which the [. . .] Court of Appeal has held to be a breach of our international legal obligations.' Given the expiry of the United Nations mandate for the Multi-National Force (MNF) in Iraq, the United Kingdom Government considered itself to have 'no lawful option other than transfer to the Iraqi authorities'.