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R. (on the application of Al-Jedda) v. Secretary of State for Defence: human rights in a multi-level system of governance and the internment of suspected terrorists.

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CONTENTS



I Introduction II The Law of International Legal Responsibility A Effective Control B The 'Authorisation' or 'Delegation' Test C International Responsibility in Behrami and Saramati III International Responsibility in Iraq A Comparing the Texts of the Resolutions B An Examination of Governance Structures in Iraq C Responsibility in Multi-Level Systems of Governance IV Conflict between Security Council Resolutions and Human Rights Obligations? V Conclusion

I INTRODUCTION

The process of globalisation has seen not only traditional actors bearing responsibility for the conduct of foreign relations, but also, increasingly, the judiciary. To a growing extent, domestic judges in all parts of the world are called upon to adjudicate disputes with transnational implications, some of which require the exercise of extraterritorial jurisdiction and determinations upon matters which have occurred in other countries. However, difficulties continue to plague such decisions (1) as, inevitably, the factual and legal issues addressed in these cases will be more removed from the daily practice of domestic judges, leaving greater potential for poorly decided and unsatisfactory judicial decisions.

The application of the Alien Tort Claims Act 1789 (2) by the courts of the United States provides an example: in proceedings under this Act, the conduct of foreign state authorities is regularly scrutinised with a fair degree of self-righteousness while US courts are generally considerably more reluctant to assess acts of US authorities by the same yardstick. (3) But even when the courts of a particular country have to assess the conduct of their own state organs acting abroad they can encounter serious difficulties. Such was the case in the House of Lords' decision of Al-Jedda, in which the applicant--a dual national with both British and Iraqi citizenship--had been detained in Iraq by British armed forces. The applicant, Hilal Abdul-Razzaq Ali Al-Jedda, was arrested by US soldiers on 10 October 2004 and immediately handed over to British forces, who detained him without charge or trial? Subsequently, Mr Al-Jedda brought a claim under art 5(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms ('European Convention on Human Rights'). (5) The Secretary of State for Defence argued that the European Convention on Human Rights obligations were qualified by Security Council Resolution 1546 (6) which authorised the UK's presence in Iraq. (7)

Although the century of the great wars lies behind us, military interventions on foreign territory have not ceased, as the situation in Al-Jedda and the war in Iraq more generally demonstrate. Indeed, within the system of collective security established by the United Nations and regional organisations, member states are, with increasing frequency, requested to contribute military forces and civil personnel to peace and security operations in countries where public order has broken down or which are otherwise in dire need of outside assistance. The critical question that arises from such situations--and the key question faced by the House of Lords in Al-Jedda--is by which legal rules peacekeeping forces are bound. If an operation has been planned well ahead of its actual commencement, and if the host state is willing, a status of forces agreement may be concluded. In other circumstances, such as in the latest Iraq conflict, sufficient time for careful appraisal and the consent of the host state may be lacking. In any event, several questions may arise: first, whether principles of national constitutional law are required to be observed abroad; second, to what extent ordinary national laws operate extraterritorially; third, whether international conventions are binding solely on the state party's national territory or whether their obligations pursue state organs wherever they may be acting; and fourth, where several international obligations conflict, which obligation should prevail.

In the case commented upon here, the House of Lords confined itself to the third and fourth questions and only examined the legal requirements deriving from art 5(1) of the European Convention on Human Rights (8) and from art 103 of the Charter of the United Nations. The first and second questions could be avoided as the British constitutional system has not developed any general rules determining whether and to what extent the rights and freedoms existing under British law must be observed by British authorities when they act outside the United Kingdom. (9)

This case note is divided into two parts. First, it compares the House of Lords' reasoning in Al-Jedda on the question of the legal responsibility for the acts of the British armed forces with earlier jurisprudence on this issue in the context of Kosovo, and finds that the majority of the Law Lords were correct in establishing that the UK bore responsibility for Mr Al-Jedda's detention. The second part discusses the more pivotal issue--the Law Lords' decision to absolve the British Government of responsibility on the grounds that the UK was merely following UN Security Council resolutions which, by virtue of art 103 of the UN Charter (providing that obligations under the UN Charter prevail over other international agreements), take priority over the European Convention on Human Rights. The House of Lords' decision not only fails to make out an inconsistency between the European Convention on Human Rights and the Security Council resolutions in this case (as required to enliven art 103), but also adopts an interpretation of art 103 that runs counter to the underlying philosophy of the human rights system--a point made clear by considering the decision's consequences for European Union law. (10)

II THE LAW OF INTERNATIONAL LEGAL RESPONSIBILITY

A Effective Control

The first hurdle to Al-Jedda's claim was the British Government's argument that it held no responsibility in international law for the actions of its personnel in Iraq. In the Government's view, those personnel were in fact acting under the auspices and direction of the UN.

When discussing the issue of international responsibility raised by Al-Jedda, the Draft Articles on Responsibility of International Organizations of the International Law Commission ('ILC') are a good point of departure. (11) Lord Bingham of Cornhill refers to the Draft Articles at the beginning of his opinion. (12) In the ILC's most recent report, when a state places one of its organisational units at the disposal of an international organisation, the acts of that unit shall be considered acts of the relevant organisation if the latter 'exercises effective control over that conduct'. (13) This test...