In the final days of 2008, the European Court of Human Rights issued an order against the United Kingdom protecting two Iraqis who were threatened with being transferred from the custody of the UK to Iraqi authorities. I don’t believe such orders are ever posted on the website of the Court. I have obtained a copy of the confirmation letter that was sent to the solicitor for the applicants: http://www.mediafire.com/?jjzlztm9xyn. Subsequent to the order, an injunction was issued by the High Court to prevent the transfer, as this would breach the provisional measures requested by the Court, but a few hours before midnight the order was rescinded and the UK proceeded with the transfer. ‘Unprecedented and shocking’ is how the solicitor for the applicants, Phil Shiner, describes the developments.
At least two important issues are raised in this case: 1. the binding nature of provisional measures requests from the European Court of Human Rights; and 2. the extraterritorial scope of the European Convention on Human Rights, that is, its application to the British in Iraq. As for the first one, I thought this had all been decided in favour of the binding nature of such requests by case law of the Court, which only confirms the approach of the International Court of Justice in the LaGrand case. On the second point, obviously the judge who issued the provisional measures request considered that there was a serious legal foundation for a claim before the European Court of Human Rights concerning the acts of the United Kingdom in Iraq.