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Judgments - R (on the application of Al-Jedda) (FC) (Appellant) v Secretary of State for Defence (Respondent)

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15.  These letters were the immediate prelude to Resolution 1546, adopted by the Security Council on 8 June 2004. Little turns on the opening recitals, save that the Council welcomed the assurances in Mr Powell’s letter and determined that the situation in Iraq continued to constitute a threat to international peace and security. Acting under Chapter VII of the UN Charter, the Council described the role of UNAMI, reaffirmed its authorisation under UNSCR 1511 (2003) for the multinational force under unified command, having regard to the annexed letters of Dr Allawi and Mr Powell, 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 in accordance with the letters annexed to this resolution expressing, inter alia, the Iraqi request for the continued presence of the multinational force and setting out its tasks, including by preventing and deterring terrorism, so that, inter alia, the United Nations can fulfil its role in assisting the Iraqi people as outlined in paragraph seven above and the Iraqi people can implement freely and without intimidation the timetable and programme for the political process and benefit from reconstruction and rehabilitation activities;…”

The Council further decided that the mandate for the multinational force should be reviewed at the request of the Government of Iraq or 12 months from the date of the resolution and that the mandate should end on completion of the political process described earlier in the resolution, but the Council undertook to terminate the mandate earlier if requested by the Government of Iraq. The US, on behalf of the multinational force, was again requested to report at stated intervals.

16.  On 27 June 2004 the CPA issued a revised order giving members of the multinational force and the CPA general immunity from Iraqi process, and providing that they should be subject to the exclusive jurisdiction of their sending states. On the following day power was formally transferred to the Iraqi interim government, the CPA was dissolved and the occupation of Iraq by coalition forces came to an end. Such was the position when the appellant was taken into British custody in October 2004.

17.  After this date there were two further resolutions of the Security Council (Resolution 1637 of 8 November 2005 and Resolution 1723 of 28 November 2006), to which, however, little significance was, rightly, attached. Their effect was to maintain the status quo. The appellant drew attention to reports made by the Secretary General to the Security Council which expressed concern about persons detained by units of the multinational force in a manner inconsistent, it was said, with any suggestion that this was, in international law, the responsibility of the UN. Thus, for instance, on 7 June 2005 (S/2005/373, para 72) the Secretary General reported that 6000 detainees were in the custody of the multinational force and despite the release of some detainees numbers continued to grow. He commented: “Prolonged detention without access to lawyers and courts is prohibited under international law, including during states of emergency". Such observations were echoed in reports by UNAMI which, in its report on the period 1 July - 31 August 2005, para 12, expressed concern about the high number of persons detained, observing that “Internees should enjoy all the protections envisaged in all the rights guaranteed by international human rights conventions". In its next report (1 September - 31 October 2005) it repeated this expression of concern (para 6), and advised “There is an urgent need to provide [a] remedy to lengthy internment for reasons of security without adequate judicial oversight". The appellant pointed out that, according to an answer given by the armed forces minister in the House of Commons on 10 November 2004, UK forces in Iraq were operating under UNSCR 1546 and were not engaged on UN operations: Hansard (HC Debates), 10 November 2004, col 720W. A similar view, it was suggested, was taken by the Working Group of the UN’s Human Rights Council (A/HRC/4/40/Add.1) which considered the position of Mr Tariq Aziz and, in paragraph 25 of its opinion on the case, stated:

“The Working Group concludes that until 1 July 2004, Mr Tariq Aziz had been detained under the sole responsibility of the Coalition members as occupying powers or, to be more precise, under the responsibility of the United States Government. Since then and as the Iraqi Criminal Tribunal is a court of the sovereign State of Iraq, the pre-trial detention of a person charged before the tribunal is within the responsibility of Iraq. In the light of the fact that Mr Aziz is in the physical custody of the United States authorities, any possible conclusion as to the arbitrary nature of his deprivation of liberty may involve the international responsibility of the United States Government.”

18.  As already indicated, the Secretary of State founds his non-attributability argument on the judgment of the European Court, sitting as a Grand Chamber, in Behrami and Saramati, which related to events in Kosovo. The case concerned Resolution 1244, adopted by the Security Council on 10 June 1999. In the recitals to the resolution, the Council welcomed the statement of principles adopted to resolve the Kosovo crisis on 6 May 1999, which formed annex 1 to the resolution, and welcomed also the acceptance by the Federal Republic of Yugoslavia of the first nine points in a statement of principles which formed annex 2 to the resolution. Annex 1 provided, among other things, for the “Deployment in Kosovo of effective international civil and security presences, endorsed and adopted by the United Nations, capable of guaranteeing the achievement of the common objectives.” Annex 2 provided for the “Deployment in Kosovo under United Nations auspices of effective international civil and security presences, acting as may be decided under Chapter VII of the Charter, capable of guaranteeing the achievement of common objectives". The international security presence with substantial NATO participation was to be deployed under unified command and control. The international civil presence was to include an interim administration. Having determined that the situation in the region continued to constitute a threat to international peace and security, and acting under Chapter VII of the UN Charter, the Council determined on “the deployment in Kosovo, under United Nations auspices, of international civil and security presences …” A Special Representative appointed by the Secretary General was to control the implementation of the international civil presence and coordinate its activities with those of the international security presence. Member states and relevant international organisations were authorised to establish the international security presence whose responsibilities were to include, among other things, supervising de-mining until the international civil presence could, as appropriate, take over responsibility for this task. The responsibilities of the international civil presence were to include a wide range of tasks of a civilian administrative nature. Both these presences were to continue for an initial period of twelve months, and thereafter unless the Security Council decided otherwise. Both presences were duly established, the international security presence being known as KFOR and the international civil presence as UNMIK.

19.  The applicants’ claims in Strasbourg were not the same. The Behramis complained of death and injury caused to two children by the explosion of an undetonated cluster bomb unit, previously dropped by NATO. They blamed KFOR for failing to clear these dangerous mines. Mr Saramati complained of his extra-judicial detention by officers acting on the orders of KFOR between 13 July 2001 and 26 January 2002.

20.  The Grand Chamber gave a lengthy judgment, rehearsing various articles of the UN Charter to which I refer below in the context of the second issue, and citing the ILC article and commentary referred to at para 5 above. Reference was made (para 36) to a Military Technical Agreement made between KFOR and the governments of Yugoslavia and Serbia providing for the withdrawal of Yugoslav forces and the deployment in Kosovo “under United Nations auspices of effective international civil and security presences". UNSCR 1244 (1999) was quoted at some length. The court noted (para 69) that the Yugoslav Government did not control Kosovo, which was under the effective control (para 70) of the international presences which exercised the public powers normally exercised by that government. The court considered (para 71) that the question raised by the cases was less whether the respondent states had exercised extra-territorial jurisdiction in Kosovo but, far more centrally, whether the court was competent to examine under the Convention those states’ contribution to the civil and security presences which did exercise the relevant control of Kosovo.

21.  The court summarised (paras 73-120) the submissions of the applicants, the respondent states, seven third party states and the UN. In its own assessment it held that the supervision of de-mining at the relevant time fell within UNMIK’s mandate and that for issuing detention orders within the mandate of KFOR (paras 123-127). In considering whether the inaction of UNMIK and the action of KFOR could be attributed to the UN, the court held (para 129) that the UN had in Resolution 1244 (1999) “delegated” powers to establish international security and civil presences, using “delegate” (as it had explained in para 43) to refer to the empowering by the Security Council of another entity to exercise its function as opposed to “authorising” an entity to carry out functions which it could not itself perform. It considered that the detention of Mr Saramati was in principle attributable to the UN (para 141). This was because (paras 133-134) the UN had retained ultimate authority and control and had delegated operational command only. This was borne out (para 134) by the facts that Chapter VII allowed the Security Council to delegate, the relevant power was a delegable power, the delegation was prior and explicit in Resolution 1244, the extent of the delegation was defined, and the leadership of the security and civil presences were required to report to the Security Council (as was the Secretary General). Thus (para 135) under Resolution 1244 the Security Council was to retain ultimate authority and control over the security mission and it delegated to NATO the power to establish KFOR. Since UNMIK was a subsidiary organ of the UN created under Chapter VII of the UN Charter its inaction was in principle attributable to the UN (paras 129, 142-143). Dealing finally with its competence ratione personae, the court said (para 149):

“In the present case, chapter VII allowed the UNSC to adopt coercive measures in reaction to an identified conflict considered to threaten peace, namely UNSC Resolution 1244 establishing UNMIK and KFOR.

Since operations established by UNSC Resolutions under Chapter VII of the UN Charter are fundamental to the mission of the UN to secure international peace and security and since they rely for their effectiveness on support from member states, the Convention cannot be interpreted in a manner which would subject the acts and omissions of Contracting Parties which are covered by UNSC Resolutions and occur prior to or in the course of such missions, to the scrutiny of the Court. To do so would be to interfere with the fulfilment of the UN’s key mission in this field including, as argued by certain parties, with the effective conduct of its operations. It would also be tantamount to imposing conditions on the implementation of a UNSC Resolution which were not provided for in the text of the Resolution itself. This reasoning equally applies to voluntary acts of the respondent States such as the vote of a permanent member of the UNSC in favour of the relevant Chapter VII Resolution and the contribution of troops to the security mission: such acts may not have amounted to obligations flowing from membership of the UN but they remained crucial to the effective fulfilment by the UNSC of its Chapter VII mandate and, consequently, by the UN of its imperative peace and security aim.”

The court accordingly concluded (para 151) that, since UNMIK was a subsidiary organ of the UN created under Chapter VII and KFOR was exercising powers lawfully delegated under Chapter VII by the Security Council, their actions were directly attributable to the UN, an organisation of universal jurisdiction fulfilling its imperative collective security objective. The applicants’ complaints were accordingly incompatible ratione personae with the provisions of the Convention.

22.  Against the factual background described above a number of questions must be asked in the present case. Were UK forces placed at the disposal of the UN? Did the UN exercise effective control over the conduct of UK forces? Is the specific conduct of the UK forces in detaining the appellant to be attributed to the UN rather than the UK? Did the UN have effective command and control over the conduct of UK forces when they detained the appellant? Were the UK forces part of a UN peacekeeping force in Iraq? In my opinion the answer to all these questions is in the negative.

23.  The UN did not dispatch the coalition forces to Iraq. The CPA was established by the coalition states, notably the US, not the UN. When the coalition states became occupying powers in Iraq they had no UN mandate. Thus when the case of Mr Mousa reached the House as one of those considered in R(Al-Skeini and others) v Secretary of State for Defence) (The Redress Trust intervening) [2007] UKHL 26, [2007] 3 WLR 33 the Secretary of State accepted that the UK was liable under the European Convention for any ill-treatment Mr Mousa suffered, while unsuccessfully denying liability under the Human Rights Act 1998. It has not, to my knowledge, been suggested that the treatment of detainees at Abu Ghraib was attributable to the UN rather than the US. Following UNSCR 1483 in May 2003 the role of the UN was a limited one focused on humanitarian relief and reconstruction, a role strengthened but not fundamentally altered by UNSCR 1511 in October 2003. By UNSCR 1511, and again by UNSCR 1546 in June 2004, the UN gave the multinational force express authority to take steps to promote security and stability in Iraq, but (adopting the distinction formulated by the European Court in para 43 of its judgment in Behrami and Saramati) the Security Council was not delegating its power by empowering the UK to exercise its function but was authorising the UK to carry out functions it could not perform itself. At no time did the US or the UK disclaim responsibility for the conduct of their forces or the UN accept it. It cannot realistically be said that US and UK forces were under the effective command and control of the UN, or that UK forces were under such command and control when they detained the appellant.

24.  The analogy with the situation in Kosovo breaks down, in my opinion, at almost every point. The international security and civil presences in Kosovo were established at the express behest of the UN and operated under its auspices, with UNMIK a subsidiary organ of the UN. The multinational force in Iraq was not established at the behest of the UN, was not mandated to operate under UN auspices and was not a subsidiary organ of the UN. There was no delegation of UN power in Iraq. It is quite true that duties to report were imposed in Iraq as in Kosovo. But the UN’s proper concern for the protection of human rights and observance of humanitarian law called for no less, and it is one thing to receive reports, another to exercise effective command and control. It does not seem to me significant that in each case the UN reserved power to revoke its authority, since it could clearly do so whether or not it reserved power to do so.

25.  I would resolve this first issue in favour of the appellant and against the Secretary of State.

The second issue

26.  As already indicated, this issue turns on the relationship between article 5(1) of the European Convention and article 103 of the UN Charter. The central questions to be resolved are whether, on the facts of this case, the UK became subject to an obligation (within the meaning of article 103) to detain the appellant and, if so, whether and to what extent such obligation displaced or qualified the appellant’s rights under article 5(1).

27.  Article 5(1) protects one of the rights and freedoms which state parties to the European Convention have bound themselves to secure to everyone within their jurisdiction. It has been recognised as a right of paramount importance. It is one to which, by virtue of the Human Rights Act 1998, UK courts must give effect. Its terms are familiar: “Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:…” There follows a list of situations in which a person may, in accordance with a procedure prescribed by law, be deprived of his liberty. It is unnecessary to recite the details of these situations, since none of them is said to apply to the appellant. In the absence of some exonerating condition, the detention of the appellant would plainly infringe his right under article 5(1).

28.  The Charter of the United Nations was signed in June 1945 as the Second World War, with its horrific consequences in many parts of the world, was drawing to a close. It is necessary to review its terms in a little detail. In the preamble the parties expressed their determination to save succeeding generations from the scourge of war and to reaffirm faith in fundamental human rights. Its objects, expressed in article 1, were (among others) to maintain international peace and security and, to that end, to take effective collective measures for the prevention and removal of threats to the peace; and to promote and encourage respect for human rights. Member states bound themselves (article 2) to fulfil in good faith the obligations assumed by them in accordance with the Charter, and to give the UN every assistance in any action it might take in accordance with the Charter. By article 24 the Security Council has primary responsibility for the maintenance of peace and security and acts on behalf of member states in discharging that responsibility. Member states agree (article 25) to accept and carry out the decisions of the Security Council in accordance with the Charter.

29.  Chapter VII governs “Action with respect to threats to the peace, breaches of the peace, and acts of aggression". It opens (article 39) by providing that the Security Council shall determine the existence of any threat to the peace, breach of the peace or act of aggression and decide what measures should be taken in accordance with articles 41 and 42 to maintain or restore international peace and security. Article 41 is directed to measures not involving the use of armed force. More pertinently, article 42 empowers the Security Council, if it considers that article 41 powers were or would be inadequate, to take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. By article 43, member states undertake, in order to contribute to the maintenance of international peace and security, to make available to the Security Council on its call and in accordance with a special agreement or agreements, armed forces, assistance and facilities necessary for the purpose of maintaining international peace and security. Such agreements were to govern the number and types of forces, including their location, readiness and facilities and were to be negotiated as soon as possible on the initiative of the Security Council. No such agreements have, in practice, ever been made, and article 43 is a dead letter.

30.  It remains to take note of article 103, a miscellaneous provision contained in Chapter XVI. It provides:

“In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail".

This provision lies at the heart of the controversy between the parties. For while the Secretary of State contends that the Charter, and UNSCRs 1511 (2003), 1546 (2004), 1637 (2005) and 1723 (2006), impose an obligation on the UK to detain the appellant which prevails over the appellant’s conflicting right under article 5(1) of the European Convention, the appellant insists that the UNSCRs referred to, read in the light of the Charter, at most authorise the UK to take action to detain him but do not oblige it to do so, with the result that no conflict arises and article 103 is not engaged.

31.  There is an obvious attraction in the appellant’s argument since, as appears from the summaries of UNSCRs 1511 and 1546 given above in paras 12 and 15, the resolutions use the language of authorisation, not obligation, and the same usage is found in UNSCRs 1637 (2005) and 1723 (2006). In ordinary speech to authorise is to permit or allow or license, not to require or oblige. I am, however, persuaded that the appellant’s argument is not sound, for three main reasons.

32.  First, it appears to me that during the period when the UK was an occupying power (from the cessation of hostilities on 1 May 2003 to the transfer of power to the Iraqi Interim Government on 28 June 2004) it was obliged, in the area which it effectively occupied, to take necessary measures to protect the safety of the public and its own safety. Article 43 of the Hague Regulations 1907 provides, with reference to occupying powers:

“The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country".

This provision is supplemented by certain provisions of the Fourth Geneva Convention. Articles 41, 42 and 78 of that convention, so far as material, provide

“41.  Should the Power, in whose hands protected persons may be, consider the measures of control mentioned in the present Convention to be inadequate, it may not have recourse to any other measure of control more severe than that of assigned residence or internment, in accordance with the provisions of articles 42 and 43…

42.  The internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary…

78.  If the Occupying Power considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may, at the most, subject them to assigned residence or to internment".

These three articles are designed to circumscribe the sanctions which may be applied to protected persons, and they have no direct application to the appellant, who is not a protected person. But they show plainly that there is a power to intern persons who are not protected persons, and it would seem to me that if the occupying power considers it necessary to detain a person who is judged to be a serious threat to the safety of the public or the occupying power there must be an obligation to detain such person: see the decision of the International Court of Justice in Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) [2005] ICJ Rep 116, para 178. This is a matter of some importance, since although the appellant was not detained during the period of the occupation, both the evidence and the language of UNSCR 1546 (2004) and the later resolutions strongly suggest that the intention was to continue the pre-existing security regime and not to change it. There is not said to have been such an improvement in local security conditions as would have justified any relaxation.

33.  There are, secondly, some situations in which the Security Council can adopt resolutions couched in mandatory terms. One example is UNSCR 820 (1993), considered by the European Court (with reference to an EC regulation giving effect to it) in Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v Ireland (2005) 42 EHRR 1, which decided in paragraph 24 that “all states shall impound all vessels, freight vehicles, rolling stock and aircraft in their territories…". Such provisions cause no difficulty in principle, since member states can comply with them within their own borders and are bound by article 25 of the UN Charter to comply. But language of this kind cannot be used in relation to military or security operations overseas, since the UN and the Security Council have no standing forces at their own disposal and have concluded no agreements under article 43 of the Charter which entitle them to call on member states to provide them. Thus in practice the Security Council can do little more than give its authorisation to member states which are willing to conduct such tasks, and this is what (as I understand) it has done for some years past. Even in UNSCR 1244 (1999) relating to Kosovo, when (as I have concluded) the operations were very clearly conducted under UN auspices, the language of authorisation was used. There is, however, a strong and to my mind persuasive body of academic opinion which would treat article 103 as applicable where conduct is authorised by the Security Council as where it is required: see, for example, Goodrich, Hambro and Simons (eds), Charter of the United Nations: Commentary and Documents, 3rd ed (1969), pp 615-616; Yearbook of the International Law Commission (1979), Vol II, Part One, para 14; Sarooshi, The United Nations and the Development of Collective Security (1999), pp 150-151. The most recent and perhaps clearest opinion on the subject is that of Frowein and Krisch in Simma (ed), The Charter of the United Nations: A Commentary, 2nd ed (2002), p 729:

“Such authorizations, however, create difficulties with respect to article 103. According to the latter provision, the Charter-and thus also SC resolutions-override existing international law only insofar as they create ‘obligations’ (cf. Bernhardt on article 103 MN 27 et seq.). One could conclude that in case a state is not obliged but merely authorized to take action, it remains bound by its conventional obligations. Such a result, however, would not seem to correspond with state practice at least as regards authorizations of military action. These authorizations have not been opposed on the ground of conflicting treaty obligations, and if they could be opposed on this basis, the very idea of authorizations as a necessary substitute for direct action by the SC would be compromised. Thus, the interpretation of article 103 should be reconciled with that of article 42, and the prevalence over treaty obligations should be recognized for the authorization of military action as well (see Frowein/Krisch on article 42 MN 28). The same conclusion seems warranted with respect to authorizations of economic measures under article 41. Otherwise, the Charter would not reach its goal of allowing the SC to take the action it deems most appropriate to deal with threats to the peace-it would force the SC to act either by way of binding measures or by way of recommendations, but would not permit intermediate forms of action. This would deprive the SC of much of the flexibility it is supposed to enjoy. It seems therefore preferable to apply the rule of article 103 to all action under articles 41 and 42 and not only to mandatory measures.”

This approach seems to me to give a purposive interpretation to article 103 of the Charter, in the context of its other provisions, and to reflect the practice of the UN and member states as it has developed over the past 60 years.

 
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