[JURIST] A panel of the UK High Court of Justice [official website] ruled [judgment, PDF] Friday that Iraqis Faisal Attiyah Nassar al-Saadoon and Khalaf Hussain Mufdhi, suspected in the 2003 deaths of two British soldiers [BBC report], may be transferred to Iraqi custody to face trial. Lawyers for the men had contested their transfer, arguing that it would violate the European Convention on Human Rights (ECHR) and the UK Human Rights Act of 1998 [texts], because of alleged bias in Iraqi courts and the possibility that the men may be tortured or executed if they are convicted of the crime. The court found that there was insufficient support for the claims of judicial bias or risk of torture, but found that the men would likely face execution if convicted. It further held that even though the death penalty was against the terms of the ECHR and UK law, broader international law principles obligated the transfer of detainees to Iraqi custody even if they face the penalty, as long as its application is reserved for only the most severe offenses:
The charges against the claimants fall within the category of the most serious crimes which would justify, in the terms of [a UN Human Rights Committee] comment, the exceptional measure of the death penalty. It follows 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. The risk that the claimants may be subject to the death penalty does not, therefore, operate to relieve the United Kingdom of its obligation to transfer the claimants into the custody of the Iraqi court.The men face war crimes charges before the Iraqi Higher Tribunal, and are currently being held by British forces in Iraq. The UK court gave lawyers for the men until Monday to appeal the decision.
The British military has faced criticism for holding the two men without charge after an Independent report [text; JURIST report] made their detention public in June. A lawyer for Public Interest Lawyers [firm website], retained by the men's families to work for their release in the British courts, said that the detentions are groudless.