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House of Lords decides on detention without trial by UK forces in Iraq

On 12 December 2007, the United Kingdom House of Lords, issued a long awaited judgment in the case of R (on the application of Al-Jedda) v Secretary of State of Defence [2007] UKHL. Al-Jedda was a national of both Iraq and the UK who had been detained in October 2004 by UK forces operating in Iraq as part of the multinational force authorised by Security Council Resolutions 1511 and 1546. Al-Jedda claimed, inter alia, that his detention was in violation of his right to liberty under Article 5(1) of the European Convention on Human Rights, as enacted in the UK by the Human Rights Act 1998. The House of Lords unanimously dismissed the case.

As noted by Lord Rodger, the House of Lords ‘found itself deep inside the realm of international law’. Foremost, it had to decide whether or not the right under Article 5 of the European Convention had been displaced by the provisions of the United Nations Charter and associated Security Council Resolutions. Their Lordships were unanimous that the United Nations Charter took priority in this instance, the principal reasoning found in the judgment of Lord Bingham at paras. 26-39. Whilst in agreement, Baroness Hale prudently noted that ‘the right is qualified but not displaced … the right is qualified only to the extent required or authorised by the resolution’, at para. 126.

A more divisive issue was whether the United Kingdom was responsible for the actions of it troops in Iraq or whether the actions of the multinational force were instead attributable to the United Nations. In this regard, their Lordships paid close attention to the decisions of the European Court of Human Rights in the cases of Behrami v France and Saramati v France, Germany and Norway (decision on admissibility of 2 May 2007) which concerned actions of NATO forces in Kosovo. The majority of their Lordships distinguished the case before them from those decisions, arguing that unlike the situation in Kosovo, ‘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’ (Lord Bingham, at para. 23). Lord Rodger, however, dissented on this issue. He cogently argued that ‘if one compares the terms of Resolution 1244 [concerning Kosovo] and Resolution 1511 [concerning Iraq], for present purposes there appears to be no relevant legal difference between the two forces’, at para. 87. He continues, ‘by “authorising” the [multinational force] to take the measures required to fulfil its “mandate”, the [Security Council] was asserting and exercising control over the [multinational force] and was prescribing the mission that it was to carry out’, at para. 88. Lord Rodger also noted that the commanders of the multinational force were required to report to the Security Council which had the power to terminate the mandate of the force if it wished.

Not only does this case present a vivid demonstration of a national court having to answer complex questions of international law, but the difference in reasoning relating to the responsibility for the actions of UK forces in Iraq shows the difficulties involved in determining the attribution of conduct to international organizations in some circumstances.

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