When Soering Went to Iraq…: Problems of Jurisdiction, Extraterritorial Effect and Norm Conflicts in Light of the European Court of Human Rights’ Al-Saadoon Case

In its admissibility decision in the Al-Saadoon case the ECtHR held that the United Kingdom had jurisdiction over the applicants, who had been arrested by British forces and kept in a British-run military prison in Iraq.
In its admissibility decision in the Al-Saadoon case the ECtHR held that the United Kingdom had jurisdiction over the applicants, who had been arrested by British forces and kept in a British-run military prison in Iraq. Just before the respective mandate of the Security Council expired on 31 December 2008, the applicants were transferred to Iraqi custody at Iraqi request and thereby exposed to the risk of an unfair trial followed by capital punishment. In this respect, the case resembles the Soering case, although the applicants were, unlike Soering, not on British territory but on occupied Iraqi soil before they were handed over. This aspect raises the question of Iraqi sovereignty as a norm competing with the UK's human rights obligations. The authors trace back the ECtHR's case law concerning the extraterritorial application of the Convention and analyse the UK judgments and the ECtHR's admissibility decision in the Al-Saadoon affair from this angle. Furthermore they consider the doctrinal consequences of the ECHR's extraterritorial effect in cases like Soering and Al-Saadoon, where contracting parties violate guarantees of the Convention by exposing a person within their jurisdiction to a risk of a treatment contrary to these guarantees by a third state. Finally, they test the argument brought forward by the UK that not transferring the applicants would have violated Iraqi sovereignty and establish patterns how the ECtHR and the UK Courts did cope in the past with international law norms potentially competing with the Convention.
show moreshow less

Download full text files

Export metadata

  • Export Bibtex
  • Export RIS

Additional Services

    Share in Twitter Search Google Scholar
Metadaten
Author:Cornelia Janik, Thomas Kleinlein
URN:urn:nbn:de:hebis:30:3-273521
DOI:http://dx.doi.org/10.3249/1868-1581-1-3-janik
ISSN:1868-1581
Parent Title (English):Göttingen journal of international law
Publisher:Inst. für Völker- und Europarecht
Place of publication:Göttingen
Document Type:Article
Language:English
Year of first Publication:2009
Publishing Institution:Univ.-Bibliothek Frankfurt am Main
Release Date:2012/11/06
Volume:3
Pagenumber:60
First Page:459
Last Page:518
Institutes:Rechtswissenschaft
Exzellenzcluster Die Herausbildung normativer Ordnungen
Dewey Decimal Classification:340 Recht
Sammlungen:Universitätspublikationen
Licence (German):License Logo Veröffentlichungsvertrag für Publikationen

$Rev: 11761 $