R.

• Author: Hutchinson, Lisa-Claire
• Position: On the application of Al-Jedda - Detention and human rights of suspected terrorists

In R (on the application of Al-Jedda) v Secretary of State for Defence ('Al-jedda'), (1) the House of Lords evaluated the legality of certain British acts in Iraq, performed while part of the multinational force ('MNF). Four Lords rejected the Secretary of State's claim that the detention of the appellant was attributable to the United Nations ('UN'), which authorised such measures in a series of Security Council Resolutions. The House went on to unanimously dismiss the appeal by Mr. Al-Jedda, upholding the decision by the Queen's Bench Divisional Court (2) and Court of Appeal (3) that his indefinite detention by United Kingdom ('UK') forces in Iraq was not contrary to the right to Liberty under article 5(1) of the European Convention on Human Rights ('the Convention'), as scheduled to the Human Rights Act 1998 (UK) ('HRA'). It was held that the application of article 5(1) was qualified by virtue of articles 25 and 103 of the United Nations Charter ('the Charter').

Introduction

Although ultimately turning on questions of domestic law, Al-Jedda (4) deals with pertinent themes of conflicting international, national and domestic constitutional norms. First, the judgment identifies--but fails to provide a definitive answer to--the question of what factors establish 'effective control' for the purposes of vesting international legal responsibility in jointly operated overseas military operations.

Further, the decision provides an answer to the question of whether, and to what extent, conflicting international law obligations and responsibilities can qualify or displace domestically guaranteed human rights. Security Council authorisation is found to absolve a member state from liability for actions which would otherwise violate its domestic and international human rights obligations. (5) Accompanying this finding was a rejection of the argument that human rights treaties enjoy a special character which prevents their being overridden by conflicting international obligations, (6) and a strong message that states party need not avail themselves of formal derogation from human rights obligations when conducting overseas military operations. (7)

These findings emerge from the House's recognition that international legal instruments impacted on and affected the UK Government's accountability for the actions of its forces overseas, an unusual occurrence, given the traditionally dualist approach to international law adopted in the UK. (8) This situation arose under the domestic HRA invoked in Al-Jedda, which required the legality of UK state action overseas to be judged with reference to international legal principles, resulting in the Law Lords interpreting a partly unincorporated Security Council Resolution and the unincorporated United Nations Charter.

This note is principally concerned with the discussion of attribution and the effect of the Security Council Resolutions on the appellant's domestic law rights, which represented the first and second issues on appeal. A basic outline of the facts and the history of the litigation are necessary to provide the context of the discussion of principle and the implications which follow.

1. Facts

The Resolution at the heart of the appeal was issued after the occupation of Iraq formally ended, the interim constitution of Iraq was in effect and sovereignty had transferred to the Iraqi Interim Government. The Security Council, acting under Chapter VII of the Charter, passed Resolution 1546 on 8 June 2004, which authorised the MNF's continued presence in Iraq as a security force, as requested by the Iraqi government. (9) Paragraph 10 of Resolution 1546 authorised the MNF to 'take all necessary measures to contribute to the maintenance of security and stability in Iraq' in accordance with certain documents annexed to the resolution. One such document was a letter of the then United States ('US') Secretary of State Colin Powell, pledging the willingness of the MNF to undertake tasks including 'internment where this is necessary for imperative reasons of security'.

While visiting Baghdad in October 2004, US troops accompanied by Iraqi national guards arrested the appellant, a dual UK and Iraqi citizen, on suspicion of membership of a terrorist group involved in weapons smuggling and explosive attacks in Iraq. Specifically, Mr. Al-Jedda was suspected of being personally responsible for recruiting, transporting and conspiring with terrorists planning explosive attacks against the MNF in and around Fallujah and Baghdad.

Upon arrest, the appellant was then transferred to the Shaibah Divisional Temporary Detention Facility in Basrah, under tine control of British forces serving as part of the MNF. Mr. Al-Jedda was detained there on a preventative basis, and periodic reviews of his detention carried out by the UK forces concluded that its continuation was necessary for imperative reasons of security in Iraq. He remains there to this day.

2. The First Issue

   There were three issues on appeal. Preliminary to any claim by the appellant relating to his rights under the HRA was the question of whether the European Court of Human Rights ('ECtHR') would be competent to examine any acts of the MNF operating in Iraq. (10) In R (Quark Fishing Ltd) v Foreign Secretary, (11) the House had decided that any domestic remedy for breach of the HRA is limited to rights for which the UK would be accountable in Strasbourg. Essentially, absent liability before the European Court, no right existed in domestic law. The House thus had to be satisfied in Al-Jedda that State actions as part of the MNF would be within the jurisdictional competence of the ECtHR.

   This issue had not been litigated in the courts below, as it was apparently pleaded by the UK in reaction to a decision of the ECtHR handed down subsequent to that of...