(back to preceding text)

34.  I am further of the opinion, thirdly, that in a situation such as the present “obligations” in article 103 should not in any event be given a narrow, contract-based, meaning. The importance of maintaining peace and security in the world can scarcely be exaggerated, and that (as evident from the articles of the Charter quoted above) is the mission of the UN. Its involvement in Iraq was directed to that end, following repeated determinations that the situation in Iraq continued to constitute a threat to international peace and security. As is well known, a large majority of states chose not to contribute to the multinational force, but those which did (including the UK) became bound by articles 2 and 25 to carry out the decisions of the Security Council in accordance with the Charter so as to achieve its lawful objectives. It is of course true that the UK did not become specifically bound to detain the appellant in particular. But it was, I think, bound to exercise its power of detention where this was necessary for imperative reasons of security. It could not be said to be giving effect to the decisions of the Security Council if, in such a situation, it neglected to take steps which were open to it.

35.  Emphasis has often been laid on the special character of the European Convention as a human rights instrument. But the reference in article 103 to “any other international agreement” leaves no room for any excepted category, and such appears to be the consensus of learned opinion. The decisions of the International Court of Justice (Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising From the Aerial Incident at Lockerbie [1992] ICJ Rep 3, para 39; Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide [1993] ICJ Rep 325, per Judge ad hoc Lauterpacht, pp 439-440, paras 99-100) give no warrant for drawing any distinction save where an obligation is jus cogens and according to Judge Bernhardt it now seems to be generally recognised in practice that binding Security Council decisions taken under Chapter VII supersede all other treaty commitments (Simma (ed), The Charter of the United Nations: A Commentary, 2nd ed (2002), pp 1299-1300).

36.  I do not think that the European Court, if the appellant’s article 5(1) claim were before it as an application, would ignore the significance of article 103 of the Charter in international law. The court has on repeated occasions taken account of provisions of international law, invoking the interpretative principle laid down in article 31(3)(c) of the Vienna Convention on the Law of Treaties, acknowledging that the Convention cannot be interpreted and applied in a vacuum and recognising that the responsibility of states must be determined in conformity and harmony with the governing principles of international law: see, for instance, Loizidou v Turkey (1996) 23 EHRR 513, paras 42-43, 52; Bankovic v Belgium (2001) 11 BHRC 435, para 57; Fogarty v United Kingdom (2001) 34 EHRR 302, para 34; Al-Adsani v United Kingdom (2001) 34 EHRR 273, paras 54-55; Behrami and Saramati, above, para 122. In the latter case, in para 149, the court made the strong statement quoted in para 21 above.

37.  The appellant is, however, entitled to submit, as he does, that while maintenance of international peace and security is a fundamental purpose of the UN, so too is the promotion of respect for human rights. On repeated occasions in recent years the UN and other international bodies have stressed the need for effective action against the scourge of terrorism but have, in the same breath, stressed the imperative need for such action to be consistent with international human rights standards such as those which the Convention exists to protect. He submits that it would be anomalous and offensive to principle that the authority of the UN should itself serve as a defence of human rights abuses. This line of thinking is reflected in the judgment of the European Court in Waite and Kennedy v Germany (1999) 30 EHRR 261, para 67, where the court said:

“67.  The court is of the opinion that where states establish international organisations in order to pursue or strengthen their co-operation in certain fields of activities, and where they attribute to these organisations certain competences and accord them immunities, there may be implications as to the protection of fundamental rights. It would be incompatible with the purpose and object of the Convention, however, if the contracting states were thereby absolved from their responsibility under the Convention in relation to the field of activity covered by such attribution. It should be recalled that the Convention is intended to guarantee not theoretical or illusory rights, but rights that are practical and effective …”

The problem in a case such as the present is acute, since it is difficult to see how any exercise of the power to detain, however necessary for imperative reasons of security, and however strong the safeguards afforded to the detainee, could do otherwise than breach the detainee’s rights under article 5(1).

38.  One solution, discussed in argument, is that a state member of the Council of Europe, facing this dilemma, should exercise its power of derogation under article 15 of the Convention, which permits derogation from article 5. However, such power may only be exercised in time of war or other public emergency threatening the life of the nation seeking to derogate, and only then to the extent strictly required by the exigencies of the situation and provided that the measures taken are not inconsistent with the state’s other obligations under international law. It is hard to think that these conditions could ever be met when a state had chosen to conduct an overseas peacekeeping operation, however dangerous the conditions, from which it could withdraw. The Secretary of State does not contend that the UK could exercise its power to derogate in Iraq (although he does not accept that it could not). It has not been the practice of states to derogate in such situations, and since subsequent practice in the application of a treaty may (under article 31(3)(b) of the Vienna Convention) be taken into account in interpreting the treaty it seems proper to regard article 15 as inapplicable.

39.  Thus there is a clash between on the one hand a power or duty to detain exercisable on the express authority of the Security Council and, on the other, a fundamental human right which the UK has undertaken to secure to those (like the appellant) within its jurisdiction. How are these to be reconciled? There is in my opinion only one way in which they can be reconciled: by ruling that the UK may lawfully, where it is necessary for imperative reasons of security, exercise the power to detain authorised by UNSCR 1546 and successive resolutions, but must ensure that the detainee’s rights under article 5 are not infringed to any greater extent than is inherent in such detention. I would resolve the second issue in this sense.

40.  The third issue (whether English common law or Iraqi law applies to the detention of the appellant and, if the former, whether there is any lawful basis for his detention) can be addressed more shortly. It is directed first to the question whether a claim by the appellant in England against the Secretary of State for damages for false imprisonment is governed by English or Iraqi law. This claim is not founded on the Convention or the Human Rights Act but on tort or delict.

41.  The general rule, enacted in section 11(1) of the Private International Law (Miscellaneous Provisions) Act 1995, is that the applicable law is the law of the country in which the events constituting the tort or delict occurred. That country in this case is Iraq, and therefore Iraqi law would ordinarily apply.

42.  Section 12 of the 1995 Act provides that the general rule may be displaced if, on comparison of the factors connecting a tort or delict with the country where it occurred with factors connecting it with another country, it is “substantially more appropriate” for the applicable law for determining the issues to be the law of the latter country rather than the former. Making that comparison, and relying on a number of factors connecting the alleged tort with this country, the appellant submits that English law is shown to be substantially more appropriate than Iraqi law to determine the issues raised by his claim.

43.  This submission was made by the appellant to the Court of Appeal, which rejected it for reasons given by Brooke LJ in paragraph 106 of his judgment. It is unnecessary to rehearse those reasons. The Court of Appeal made no error of law, and there is no ground for disturbing its assessment, with which in any event I wholly agree. I would resolve this issue against the appellant. The appellant’s claim in tort is governed by the law of Iraq.

44.  For these reasons the appeal must be dismissed. The parties (other than the intervener) are invited to make submissions on costs within 14 days.

LORD RODGER OF EARLSFERRY

My Lords,

45.  The appellant, Mr Al-Jedda, has been detained since October 2004 by British forces serving as part of the multinational force (“MNF”) in Iraq. The basis of his detention is that his internment is necessary for imperative reasons of security in Iraq. Although the appellant does not accept that his internment is actually necessary, it is common ground that, for the purposes of this appeal, the House should proceed on the assumption that his internment is indeed necessary for the reasons given by the Secretary of State.

46.  Similarly, it is common ground that the present appeal concerns only the alleged violation of the appellant’s rights under article 5(1) of the European Convention on Human Rights and Fundamental Freedoms (“the Convention”). The House is not concerned with any issue relating to the provisions for the review of his continued detention - or indeed with any issue relating to article 5(4) of the Convention.

47.  In short, the appellant complains that, since detention on the ground that it is necessary for imperative reasons of security is not permissible under article 5(1) of the Convention, his detention is unlawful under section 6(1) of the Human Rights Act 1998 (“HRA”). He seeks, inter alia, a declaration to that effect and a mandatory order that the Secretary of State should release him.

48.  The fact that the appellant is detained in Iraq is not in itself a bar to such proceedings under the HRA. Although, for the most part, the Act applies only to acts of public authorities within the United Kingdom, it will also usually apply to acts of United Kingdom public authorities outside the United Kingdom where the victim is within the jurisdiction of the United Kingdom for purposes of article 1 of the Convention: R (Al-Skeini) v Secretary of State for Defence (The Redress Trust intervening) [2007] 3 WLR 33. In the present case, counsel for the Secretary of State argued, however, that there are two distinct reasons why the appellant cannot rely on his article 5(1) Convention rights in these proceedings.

49.  First, and more fundamentally, counsel submitted that the acts of the British forces in detaining the appellant were to be attributed to the United Nations in international law. The European Court of Human Rights would accordingly be incompetent ratione personae to consider any application by him in respect of those acts. The point was not, and could not have been, argued in the courts below since it is based on the subsequent decision of the Grand Chamber of the European Court of Human Rights in Behrami v France, Saramati v France, Germany and Norway (Application Nos 71412/10 and 78166/01) (unreported), 2 May 2007.

50.  Secondly, counsel submitted that, in any event, by virtue of Security Council Resolution 1546, and articles 25 and 103 of the United Nations Charter (“the Charter”), the British forces were under an obligation to intern the appellant which superseded any obligation of the United Kingdom under article 5(1) of the Convention.

51.  It is now well established, of course, that the Convention rights in Schedule 1 to the HRA are distinct obligations in the domestic legal systems of the United Kingdom. The Act does not incorporate into our domestic law the international law obligations under the Convention as such. See, for instance, In re McKerr [2004] 1 WLR 807. In the courts below, the appellant ran an argument based on that line of authority, to the effect that, even if the international law obligations of the United Kingdom under article 5(1) had been superseded by the terms of Resolution 1546, that made no difference to the Secretary of State’s domestic law obligation not to act incompatibly with the appellant’s article 5 Convention rights as set out in Schedule 1 to the HRA. By virtue of section 1(2) of the HRA, that position could be changed only by the United Kingdom derogating from article 5(1).

52.  In section 21(1) of the HRA the term “Convention” in the Act is defined, however, as meaning the European Convention “as it has effect for the time being in relation to the United Kingdom". On that basis, in the courts below the Secretary of State argued that, to the extent that article 5(1) was trumped by the terms of Resolution 1546 and articles 25 and 103 of the Charter, it did not have “effect...in relation to the United Kingdom” for purposes of the HRA.

53.  At para 74 of its judgment, the Divisional Court accepted the Secretary of State’s submission to that effect. Under reference to R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2006] 1 AC 529, the Court of Appeal did so also: [2007] QB 621, 652-654, paras 88-99, per Brooke LJ. The appellant did not challenge the decision of the Court of Appeal on that point before the House.

54.  While the effect of Quark Fishing was not explored by counsel in relation to the Secretary of State’s (new) first argument, the position must be the same as with his other argument. If the European Court would hold, as it held in relation to the defendant states in Behrami, that the action of the British forces in detaining Mr Al-Jedda was attributable to the United Nations, then it would also declare his complaint to be incompatible ratione personae with the provisions of the Convention: Behrami, para 153. In other words, the Convention would not have “effect...in relation to the United Kingdom” in respect of Mr Al-Jedda’s detention. So, in accordance with the decision of the Court of Appeal, he could not bring proceedings in the English courts under the HRA alleging that his detention was unlawful because it was incompatible with his article 5(1) Convention rights.

55.  I emphasise the point since it explains why the House, a domestic court, finds itself deep inside the realm of international law - indeed inside the very chamber of the United Nations Security Council itself. The House is confronted by these issues precisely because it is called upon to assess how a claim by the appellant, that his international law rights under article 5(1) of the Convention had been violated by the United Kingdom, would fare before the European Court in Strasbourg. How would that court resolve the two issues of international law? Would the European Court hold that the appellant’s complaint was incompatible ratione personae with the provisions of the Convention? If not, would it hold that, by reason of articles 25 and 103 of the Charter, in so far as there was a conflict, the obligations of the British forces under Security Council Resolution 1546 prevailed over the United Kingdom’s obligations under article 5(1) of the European Convention? In answering these questions, the House must, of course, have regard to the way that the European Court has approached similar questions in the past. The interpretation and application of the decision of the European Court in Behrami are accordingly central to any consideration of the first question.

56.  That decision arose out of events in Kosovo. One child, Gadaf Behrami, had been killed and another, Bekim Behrami, had been very seriously injured by an undetonated cluster bomb that had not been cleared. Mr Saramati had been detained by French forces. The applicant, Mr Agim Behrami, claimed that, in the case of his children, there had been a breach of article 2 of the Convention. Mr Saramati claimed that there had been a violation of article 5 of the Convention. The case of the Behrami children was complicated by a factual dispute as to which organisation was responsible for the failure to clear the mines. For present purposes, however, it is enough to concentrate on Mr Saramati’s application, alleging that his rights under article 5 of the Convention had been violated by France.

57.  France argued that Mr Saramati’s detention had been carried out by her forces when acting as part of the international Kosovo Force (“KFOR”), in accordance with its mandate in Security Council Resolution 1244. Hence the impugned detention was attributable to the United Nations. As the European Court explained in Behrami, at para 121, it therefore had, first, to determine whether the detention was indeed “attributable” to the United Nations, “attributable” being understood in the same way as in article 3 of the draft Articles on the Responsibility of International Organisations. If the court found that the detention was indeed attributable to the United Nations, it had then to go on to consider whether the court was competent to review the detention. In the event, the court held, at para 140, that the United Nations retained ultimate authority and control and hence, at para 141, that the detention of Mr Saramati was in principle “attributable” to the United Nations. The court went on to conclude that, in these circumstances, the Convention could not be interpreted in a manner which would subject the action of the French forces in detaining Mr Saramati to the scrutiny of the court: para 149. So his application to the European Court was inadmissible.

58.  In deciding that the detention of Mr Saramati was attributable to the United Nations, the court paid particular attention to the legal basis on which the members of KFOR were operating. For present purposes the legal basis on which British forces in the MNF have been operating during the period of the appellant’s detention must similarly be important.

59.  There is an obvious difference between the factual position in Kosovo that lay behind the Behrami case and the factual position in Iraq that lies behind the present case. The forces making up KFOR went into Kosovo, for the first time, as members of KFOR and in terms of Security Council Resolution 1244. By contrast, the Coalition forces were in Iraq and, indeed, in occupation of Iraq, for about six months before the Security Council adopted Resolution 1511, authorising the creation of the MNF, on 16 October 2003.

60.  While Resolution 1511 provided the authority for establishing the MNF, the legal position of the British forces in Iraq changed significantly at the end of June 2004. From May 2003 until the end of June 2004, the British forces had been the forces of a power which was in occupation of the relevant area of Iraq. But on 28 June the occupation ended. The interim constitution of Iraq, the Transitional Administrative Law, came into effect and sovereignty was transferred to the Iraqi Interim Government. Since the United States and the United Kingdom were no longer occupying powers, a new legal basis for their actions had to be established. This is to be found in Resolution 1546 which was co-sponsored by the United States and the United Kingdom and which the Security Council adopted on 8 June 2004. That Resolution regulated the position of the MNF when Mr Al-Jedda was detained in October 2004. By virtue of later resolutions, which do not need to be examined in detail, the core provisions of that Resolution have continued to regulate the position throughout the period of his detention.

61.  It respectfully appears to me that the mere fact that Resolution 1244 was adopted before the forces making up KFOR entered Kosovo was legally irrelevant to the issue in Behrami. What mattered was that Resolution 1244 had been adopted before the French members of KFOR detained Mr Saramati So the Resolution regulated the legal position at the time of his detention. Equally, in the present case, the fact that the British and other Coalition forces were in Iraq long before Resolution 1546 was adopted is legally irrelevant for present purposes. What matters is that Resolution 1546 was adopted before the British forces detained the appellant and so it regulated the legal position at that time. As renewed, the provisions of that Resolution have continued to do so ever since.

62.  Moreover, if there were ever any questions as to the exact interplay between the rights and duties of the British forces as the forces of an occupying power and as members of the MNF under Resolution 1511, those questions no longer arose after the end of June 2004. From that point onwards the legal position of the members of the MNF set up under Resolution 1511 was governed by Resolution 1546.

63.  Another factual difference between the situations in Kosovo and Iraq is, in my view, equally irrelevant to the legal position of the members of the military forces. In Kosovo the United Nations itself was in charge of the civil administration of the country through the United Nations Interim Administration Mission in Kosovo (UNMIK). In Iraq, after the end of June 2004, the civil government of the country was in the hands of the Iraqi Interim Government and the United Nations Assistance Mission for Iraq (UNAMI) was there simply to provide humanitarian and other assistance. The fact that the civilian administration in Kosovo was in the hands of UNMIK played no part in the European Court’s decision that the actions of members of KFOR were attributable to the United Nations. Similarly, the fact that the civil government of Iraq was in the hands of the Iraqi Interim Government at the relevant time must be irrelevant for purposes of deciding whether the actions of members of the MNF in detaining the appellant were attributable to the United Nations.

64.  Another point requires to be cleared out of the way. As already mentioned, in R (Al-Skeini) v Secretary of State for Defence [2007] 3 WLR 33 the House held that proceedings could be brought under the HRA in United Kingdom courts in respect of violations of Convention rights by a United Kingdom public authority acting within the jurisdiction of the United Kingdom in terms of article 1 of the Convention. For purposes of the first issue in this appeal, however, the House is not concerned with whether or not Mr Al-Jedda, while detained by British forces, has been within the jurisdiction of the United Kingdom in terms of article 1. The decision of the European Court in Behrami makes that quite clear. At para 71, the court said:

“The court therefore considers that the question raised by the present cases is, less whether the respondent states exercised extra-territorial jurisdiction in Kosovo but far more centrally ['fondamentalement'], whether this court is competent to examine under the Convention those states’ contribution to the civil and security presences ['le rôle joué par ces Etats au sein des présences civile et de sécurité'] which did exercise the relevant control of Kosovo.”

Having concluded that it was not competent, ratione personae, for the court to scrutinise the role played by the states in the civil and security presences in Kosovo, the court found it unnecessary to consider whether the court would have been competent ratione loci to examine complaints against the respondent states about extraterritorial acts or omissions: para 153. Equally, for purposes of the first issue in this appeal, the crucial point is whether the European Court would be competent, ratione personae, to scrutinise the role played by the British members of the MNF in detaining the appellant. If the court would not be competent for that reason, then the issue of whether it would be competent, ratione loci, does not arise.

65.  My Lords, it may seem tempting to begin and end any discussion of the position by focusing on the appellant’s detention and by asking - using the language in article 5 of the International Law Commission’s draft articles on the Responsibility of International Organisations (2004) - whether the United Nations organisation was in “effective control” of the British forces as they were detaining him. Obviously, the answer is that what the British forces did by way of detaining the appellant, they did as members of the MNF under unified command. No one would suggest that the Security Council either was, or could have been, involved in the particular decision to detain the appellant or in the practical steps taken to carry out that decision. But that was equally obviously the case with the detention of Mr Saramati in the Behrami case. The Grand Chamber held, at para 140, that the Security Council “retained ultimate authority and control and that effective command of the relevant operational matters was retained by NATO“ (emphasis added). On this basis - and despite the fact that the “effective command” of the relevant operational matters was retained by NATO - the Grand Chamber held that the detention of Mr Saramati was attributable to the United Nations.