Hussein v. The United Kingdom: Inadmissible
As a follow-up to a somewhat high-profile yet legally trivial development that came about last summer, today the European Court of Human Rights announced that Saddam Hussein’s case against Albania, Bulgaria, Croatia, Czech Republic, Denmark, Estonia, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Turkey, Ukraine and the United Kingdom – all members of the Council of Europe and parties to the European Convention on Human Rights – was inadmissible.
Basically, his argument rested on two doctrines of ECHR case law: 1) Occupying European powers of a foreign nation have convention obligations to uphold human rights in areas they control (although there is debate on whether the occupied area must be within Europe or can be outside of Europe); and 2) European powers in custody of a prisoner bear responsibility for transferring him to a non-European jurisdiction where he may be subject to torture, inhuman treatment or the death penalty. As applied to this case, Hussein was arguing that Iraq was basically under occupation of European Convention signatories who were about to deliver him to Iraqi jurisdiction after a “show trial” that would issue his execution. The legal argument makes sense, but his obvious problem is that it doesn’t fit the factual scenario: He was captured and detained by US troops, not European ones, and the CPA was effectively a US occupation, and not a European one. You can read the entire decision here – its only a few paragraphs.
Interestingly, in its discussion of the legal issues, the Court cited two cases in which it found that the ECHR applies extraterritorially only within Europe – Loizidou v. Turkey and Cyprus v. Turkey (Turkish occupation of Cyprus) – and two cases in which the Convention applied outside of Europe – Ocalan v. Turkey (Turkish abduction of Kurdish leader in Kenya) and Issa v. Turkey (Turkish military incursion against Kurds into Iraq). This seems to suggest that a division may remain within the Court as to whether or not European nations have Convention obligations to uphold human rights outside of Europe.
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