International Decision: Saadi v. Italy

Abstract

Since the inception of the 'War on Terrorism' the absolute prohibition on refoulement under Article 3 of the European Convention on Human Rights has been the subject of intense criticism by some European states. The United Kingdom, in particular, has argued that the principle of non-refoulement under Article 3 (i.e. that a state may not transfer an individual (regardless of the danger they may pose) to any state where there is a "real risk" of subjection to torture, inhuman or degrading treatment or punishment) is inappropriate when applied to suspected terrorists considered to pose a dangerous threat to the safety and welfare of the community as a whole. In addition, numerous European states have begun to deport individuals suspected of terrorist involvement to states with notorious reputations for ill-treatment on the basis of Diplomatic Assurances.

In Saadi v Italy - the case considered in this short note - the European Court of Human Rights firmly reasserted the absolute nature of Article 3 and held that the pre-2001 test of no-refoulement was not subject to alteration or 'balancing' on the basis of the perceived dangerousness of the individual concerned.

This case note, forthcoming in final form in the American Journal of International Law, outlines the Article 3 decision in the case and contrasts the rigour of the Strasbourg jurisprudence on this matter with the US Supreme Court's decision regarding transfer to the Iraqi government in Munaf v Geren (2008), considering whether this disparity might result in any operational difficulties in circumstances - such as Iraq and Afghanistan - where United States and United Kingdom forces are collaborating in military operations.

Keywords: terrorism, war on terrorism, torture, non-refoulement, Saadi v Italy, Munaf v Geren

JEL Classification: K19, K33