Al-Jedda v. the United Kingdom [GC]

Information Note on the Court’s case-law No. 143

July 2011

Al-Jedda v. the United Kingdom [GC] - 27021/08

Judgment 7.7.2011 [GC]

Article 1

Jurisdiction of states

Territorial jurisdiction in relation to detention of Iraqi national by British Armed Forces in Iraq

Article 5

Article 5-1

Lawful arrest or detention

Continued preventive detention of Iraqi national by British Armed Forces in Iraq on basis of United Nations Security Council Resolution: violation

Facts – In March 2003 a United States of America-led coalition, including British armed forces, invaded Iraq. Major combat operations in Iraq were declared complete in May 2003. As from that date, the United Kingdom became an occupying power under the relevant provisions of the regulations annexed to the 1907 Hague Convention and the 1949 Fourth Geneva Convention. A United Nations Assistance Mission for Iraq (UNAMI) was established. In its Resolutions 1511 (2003) and 1546 (2004), the United Nations Security Council described the role of UNAMI, reaffirmed its authorisation for the multinational force under unified command and decided “that the multinational force shall have the authority to take all necessary measures to contribute to the maintenance of security and stability in Iraq”.

The applicant is an Iraqi national. In October 2004 he was arrested on suspicion of involvement in terrorism and subsequently detained for over three years at a detention facility in Basra (Iraq) run by British troops. His internment was deemed necessary for imperative reasons of security in Iraq. The intelligence supporting the allegations was not disclosed to him and no criminal charges were brought against him. His detention was subject to periodic reviews by the commander of the multinational division. In June 2005 he brought judicial-review proceedings in the United Kingdom challenging the lawfulness of his continued detention and the refusal of the Government to return him to the United Kingdom. The case was ultimately decided by the House of Lords on 17 December 2007. Although accepting that the actions of the British troops in Iraq were attributable to the United Kingdom and not the United Nations so that the United Kingdom was responsible for the applicant’s internment under international law, the House of Lords went on to find that Resolution 1546 effectively obliged/authorised British forces within the multinational force to use internment “where necessary for imperative reasons of security in Iraq” and that obligations imposed by Security Council resolutions took primacy over all other international obligations, even those arising under the European Convention.

Law – Article 5 § 1: The Government had contended that the internment was attributable to the United Nations, not to the United Kingdom, and that the applicant was not, therefore, within United Kingdom jurisdiction under Article 1 of the Convention. Alternatively, the internment was carried out pursuant to Resolution 1546, which created an obligation on the United Kingdom to detain the applicant which, pursuant to Article 103 of the United Nations Charter, overrode its Convention obligations.

(a)  Jurisdiction – Security Council resolutions were to be interpreted in the light not only of the language used but also the context in which they were adopted*. At the time of the invasion in March 2003, there was no resolution providing for the allocation of roles in Iraq if the existing regime was displaced. In a letter to the president of the Security Council dated 8 May 2003, the permanent representatives of the United States and the United Kingdom had explained that, after displacing the previous regime, they had created the Coalition Provisional Authority to exercise powers of government, including the provision of security in Iraq, temporarily. They acknowledged that the United Nations had a vital role to play in providing humanitarian relief, supporting the reconstruction of Iraq and helping in the formation of an Iraqi interim government.

The first UNSC resolution after the invasion – Resolution 1483, adopted on 22 May 2003 – did not assign any security role to the United Nations. Although Resolution 1511, adopted on 16 October 2003, authorised “a multinational force under unified command to take all necessary measures to contribute to the maintenance of security and stability in Iraq”, the Court did not consider that this meant that the acts of soldiers within the Multi-National Force became attributable to the United Nations or ceased to be attributable to the troop-contributing nations. In particular, the United Nations did not assume any degree of control over either the Multi-National Force or any other of the executive functions of the Coalition Provisional Authority. In Resolution 1546, adopted on 8 June 2004, some four months before the applicant was taken into detention, the Security Council had reaffirmed the authorisation for the Multi-National Force, but there was no indication that it had intended to assume any greater degree of control or command over the force than it had exercised previously. Moreover, the fact that the UN Secretary General and UNAMI had repeatedly protested about the extent to which security internment was being used by the Multi-National Force made it difficult to conceive that the applicant’s detention was attributable to the United Nations. In sum, the Security Council had neither effective control nor ultimate authority and control over the acts and omissions of troops within the Multi-National Force. The applicant’s detention was therefore not attributable to the United Nations.

The internment had taken place within a detention facility controlled exclusively by British forces, and the applicant had thus been within the authority and control of the United Kingdom throughout. The decision to hold him in internment had been taken by the British officer in command of the detention facility. The fact that his detention was subject to reviews by committees including Iraqi officials and non-United Kingdom representatives from the Multi-National Force did not prevent it from being attributable to the United Kingdom. The applicant thus fell within the jurisdiction of the United Kingdom for the purposes of Article 1 of the Convention.

Conclusion: within the jurisdiction (unanimously).

(b)  Substantive aspect – The Government did not contend that the detention was justified under any of the exceptions set out in subparagraphs (a) to (f) of Article 5 § 1, or purport to derogate under Article 15. Instead, they argued that, by virtue of Article 103** of the United Nations Charter, the obligations created by Security Council Resolution 1546 prevailed over the United Kingdom’s Convention duties.

The Court noted, however, that the United Nations was created, not just to maintain international peace and security, but also to “achieve international cooperation in … promoting and encouraging respect for human rights and fundamental freedoms”. Article 24(2) of the Charter required the Security Council, in discharging its duties with respect to its primary responsibility for the maintenance of international peace and security, to “act in accordance with the Purposes and Principles of the United Nations”. Against that background, there had to be a presumption when interpreting Security Council resolutions that the Security Council did not intend to impose any obligation on Member States to breach fundamental principles of human rights. In the event of any ambiguity in the terms of such a resolution, the Court therefore had to choose the interpretation which was most in harmony with the requirements of the Convention and which avoided any conflict of obligations. In the light of the United Nations’ important role in promoting and encouraging respect for human rights, it was to be expected that clear and explicit language would be used were the Security Council to intend States to take particular measures which would conflict with their obligations under international human-rights law.

Internment was not explicitly referred to in Resolution 1546, which authorised the Multi-National Force “to take all necessary measures to contribute to the maintenance of security and stability in Iraq”. Internment was, however, listed in a letter from the US Secretary of State annexed to the Resolution, as an example of the “broad range of tasks” which the Multi-National Force was ready to undertake. In the Court’s view, the terminology of the Resolution left open to the Member States within the Multi-National Force the choice of the means to be used to contribute to the maintenance of security and stability in Iraq. Moreover, in the Preamble to the Resolution, the commitment of all forces to act in accordance with international law was noted, and the Convention was part of international law. In the absence of clear provision to the contrary, the presumption had to be that the Security Council intended States within the Multi-National Force to contribute to the maintenance of security in Iraq while complying with their obligations under international human-rights law.

Furthermore, it was difficult to reconcile the argument that Resolution 1546 placed an obligation on Member States to use internment with the objections repeatedly made by the UN Secretary General and UNAMI to the use of internment by the Multi-National Force. Under Resolution 1546 the Security Council mandated both the Secretary General, through his Special Representative, and UNAMI to “promote the protection of human rights … in Iraq”. In his quarterly reports throughout the relevant period, the UN Secretary General had repeatedly described the extent to which security internment was being used by the Multi-National Force as “a pressing human rights concern”. UNAMI had reported on the human-rights situation every few months during the same period and repeatedly expressed concern at the large number of people being held in indefinite internment without judicial oversight.

In conclusion, the Court considered that Resolution 1546 had authorised the United Kingdom to take measures to contribute to the maintenance of security and stability in Iraq. However, neither that nor any other resolution explicitly or implicitly required the United Kingdom to place individuals considered a security risk into indefinite detention without charge. In those circumstances, in the absence of a binding obligation to use internment, there was no conflict between the United Kingdom’s obligations under the UN Charter and its obligations under Article 5 § 1 of the Convention. The provisions of Article 5 § 1 were accordingly not displaced.

Conclusion: violation (sixteen votes to one).

Article 41: EUR 25,000 in respect of non-pecuniary damage.

(See also Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, 7 July 2011, Information Note no. 143)

* International Court of Justice advisory opinion: “Legal consequences for States of the continued presence of South Africa in Namibia, notwithstanding Security Council resolution 276 (1970)”.

**Article 103 provides that UN Member States’ obligations under the Charter shall prevail in the event of a conflict with obligations under any other international agreement.

© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.

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