Ba'ath Party

Latest news on ba'ath party

Reluctant judges rule Iraqis accused of killing British soldiers can be handed to Baghdad

Two Iraqis accused of killing British soldiers can be lawfully handed over to the authorities in Baghdad to be tried for war crimes, despite a "real risk" that they will face the death penalty, the high court ruled in an extraordinary case yesterday.However, the judges said they were "seriously troubled" by their ruling and ordered the government not to remove the men "outside British custody" before 4pm on Monday.That is the deadline for the men's lawyers to seek a fresh court injunction preventing them from being handed over.Faisal al-Saadoon, 56, and Khalaf Mufdhi, 58, who are being held by British forces in Basra, are accused of murdering Staff Sergeant Simon Cullingworth and Sapper Luke Allsopp, both bomb disposal specialists.Their murders provoked a storm in Britain. The soldiers were travelling in a convoy that was ambushed by fedayeen militiamen in southern Iraq on 23 March 2003. Cullingworth and Allsopp were taken to a Ba'ath party building and then to an Iraqi military intelligence compound, where they were shot dead. Photos of the dead soldiers, surrounded by a raucous crowd, were later shown on al-Jazeera TV. The soldiers' graves were discovered a month later and their bodies were exhumed.Saadoon and Mufdhi's lawyers argued that handing them over to the Iraqi authorities now would lay them open to a "flagrantly unfair trial", the death penalty, torture and inhuman or degrading treatment, in violation of international law and the European convention on human rights. In the high court, Lord Justice Richards and Mr Justice Silber agreed there was a "real risk" the two men would be executed. However, they said their hands were tied by a 2005 appeal court ruling involving an exception to normal principles of international, law and jurisidiction. "We are seriously troubled by that conclusion. We regard the issues in the case as difficult and important," Richards said yesterday. He issued an immediate interim injunction against the government, preventing the army from handing over the men to the Iraqi authorities before their lawyers had a chance to get a more permanent injunction pending a full appeal of yesterday's ruling. "We are not prepared to take the risk that the applicants will be transferred into the custody of the Iraqi court before they have had the opportunity to go to the court of appeal," Richards said. Silber agreed, adding: "We mean no disrespect to the Iraqi authorities."The unprecedented case is further complicated by the change in the legal status of British forces in Iraq on 1 January 2009, when they will no longer have the authority to hold the Iraqis, according to the government's lawyers. Clive Lewis QC, counsel for the defence secretary, John Hutton, said British servicemen and women responsible for detaining them could be put at personal risk if the Iraqis were not handed over. However, the judges yesterday said they would expect the defence secretary to give "careful consideration" to how the status quo could be preserved pending an appeal and taking into account the changes in the "legal and practical position concerning the presence of British forces in Iraq after 31 December". Government lawyers argued that the Iraqis will regard rulings by courts in Britain as interfering with their sovereignty. They also argued that there was insufficient evidence that the two Iraqis' human rights would be at risk. The Ministry of Defence and the Foreign Office said they had been given assurances at the "highest level" that both men would receive a fair trial and be treated fairly. British military officials had inspected and approved the prison where they will be held, they told the high court.Phil Shiner, solicitor for Saadoon and Mufdhi, said they would appeal. He added: "We expect that the government will take measures to ensure that our clients are kept safe pending resolution of the appeal proceedings, and are not transferred to either the Iraqi higher tribunal or the US forces without adequate undertakings that they will be kept safe".Karon Monaghan QC, counsel for the Iraqis, argued that their transfer would violate both the European human rights convention and the 1998 Human Rights Act. It would run counter to the government's own policy of not exposing any individual to the risk of the death penalty, she said. In any event, the continuing detention of both men was unlawful and they should be released and given secure passage "to an agreed location".One of the families of the dead soldiers has written to the Iraqi courts, asking for clemency in the event that the accused men are found guilty.LawWar crimesIraqguardian.co.uk © Guardian News & Media Limited 2008 | Use of this content is subject to our Terms & Conditions | More Feeds