Court: European Court of Human Rights

Type of decision: Judgment

Date judgment: 7 July 2011

Case no.: Application no. 27021/08

Area of jurisdiction: –

Claim: The applicant complained that he had been detained by   British troops in Iraq in breach of Article 5 (1) of the European Convention on Human Rights (ECHR)

Principle legal argument(s): The applicant submitted that he fell within the United   Kingdom’s jurisdiction under Article 1 ECHR.

Type of reparation sought: Compensation for immaterial damages.

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In October 2004 Mr. Al-Jedda – the applicant, who had a dual Iraqi/British nationality – was arrested in Iraq, on account of British intelligence services’ information that he would be recruiting terrorists and facilitating terrorist activities with the ultimate objective to attacking the Coalition Forces, present on Iraqi soil since March 2003, of which the United Kingdom (UK) was part of. Following his arrest, Mr. Al-Jedda was detained in a British military detention facility in Basra City until 30 December 2007. His continuing internment was repeatedly reviewed and authorised “for imperative reasons of security in Iraq” on the basis of intelligence material which was never disclosed to him. Although he was able to make written submissions to the reviewing authorities, no procedure for an oral hearing was available, neither existed intentions to bring criminal charges against him at any point of his detention. Mr. Al-Jedda was deprived of his British citizenship on 14 December 2007.

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Between 2005 and 2008 Mr. Al-Jedda litigated before UK courts, where he unsuccessfully challenged the lawfulness of his continued detention. In 2008, he lodged a complaint to the European Court of Human Rights (ECtHR) claiming that he had been detained by British troops in Iraq in breach of Article 5(1) of the European Convention of Human Rights (ECHR) enshrining the protection of the individual against arbitrary interference by the State with his or her right to liberty.

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In a series of domestic proceedings, at first, the UK accepted that Mr. Al-Jedda’s detention within a British military facility brought him within the jurisdiction[1] of the UK under Article 1 ECHR and that the detention did not fall within any of the permitted cases set out in Article 5 (1) ECHR. However, according to the UK, Article 5(1) ECHR was inapplicable since Mr. Al-Jedda’s detention was authorised by United Nations (UN) Security Council Resolution 1546. However, in appeal before the House of Lords, the UK changed its position claiming that Mr. Al-Jedda’s detention was attributable[2] to the UN instead of the UK, a contention it maintained before the ECtHR reasoning that UK forces were operating as part of a Multinational Force (successor of the Coalition Forces) authorised by the Security Council and subject to the ultimate authority of the UN. Thus in detaining the applicant, the British troops were not exercising the UK’s sovereign authority but the international authority of the Multinational Force, acting pursuant to the binding decision of the Security Council (para. 64) as a result of which Mr. Al-Jedda did not fall within the UK’s jurisdiction under Article 1 ECHR (paras. 18, 60). Alternatively, the UK argued that its obligation under Article 5 (1) ECHR was overruled by Security Council Resolution 1546 since Article 25 UN Charter obliges member states to carry out Security Council’s decisions which, by virtue of Article 103 UN Charter,  have primacy over a member states’ other international obligations when conflicting.

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Detention attributable to the UK or UN?

To answer this question, the ECtHR applies the ‘effective control’ test, taking into account that the command structure of the Multinational Force was not altered by Resolution 1546 and that it was the Multinational Force who created an interim administration (Coalition Provisional Authority (CPA)) until an Iraqi government could be established. Since clearly the Multinational Force was continuously in charge and not the UN that never assumed any degree of control over either these forces nor over any other of the executive functions of the CPA, and in view of the fact that in the period during which the applicant was detained, UN organs regularly expressed their concern about the extent to which the Multinational Force used security internment, the ECtHR concludes that the UN had no effective control[3] and ultimate authority and control over the Multinational Force and consequently Mr. Al-Jedda’s detention was not attributable to the UN but to the UK under who’s jurisdiction he fell during his detention (paras. 84-86).

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Breach of Article 5(1) ECHR?

The UK contends that as from the beginning of the invasion of the Coalition Forces in Iraq, until the end of the occupation on 28 June 2004, a legal regime applied that was derived from the law of belligerent occupation embedded in International Humanitarian Law (IHL) and that the specific authorities, responsibilities and obligations of the Occupying Powers, including those under the Geneva Conventions of 1949, were recognized by the Security Council (para. 87). The UK claims that, as an Occupying Power, it had the authority to take measures of detainment in order to maintain security and stability in Iraq, an authority that was expressly referred to in annexed letters to Resolution 1546, forming an integral part of thereof. Furthermore, the UK relied on its obligation to carry out a Security Council’s decision by reason of the operation of Articles 25 and 103 UN Charter which displaced the application of Article 5(1) ECHR.

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For his part, Mr. Al-Jedda submitted that Resolution 1546 did not oblige the UK to preventively detain him in breach of Article 5 ECHR but merely authorized preventive detention (para. 93).

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Resolution 1546: no conflicting obligations and no legal basis for indefinite internment

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The ECtHR first considers whether a conflict exists between the UK’s alleged obligation under Resolution 1546 to hold the applicant in internment and its obligation under Article 5(1) ECHR. Thereto it recalls the UN’s purpose of maintaining international peace and security while respecting human rights and freedoms (paras. 101-102) and concludes that Resolution 1546 was not meant to oblige member states to breach their human rights obligations and indefinite intern persons without charge. Consequently, Resolution 1645 and Article 5(1) ECHR do not conflict, Article 103 UN Charter is not at play, and thus the UK is held to adhere to its obligation under Article 5(1) ECHR.

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IHL is not a legal basis for indefinite internment either

The ECtHR goes on examining whether there exists any other legal basis for Mr. Al-Jedda’s detention that could have set aside UK’s obligations under Article 5 (1) ECHR. While rejecting the UK’s claim that the effect of Resolution 1546 was that the occupying powers and obligations under IHL, including internment when considered necessary for imperative reasons of security, continued to apply, it rules that Resolution 1546 intended to end the occupation by 30 June 2004 while Mr. Al-Jedda was arrested and imprisoned after this date, when IHL was no longer applicable. It continues ruling that even if IHL was assumed to continue to apply after June 30 2004, it is not established that IHL, by virtue of Article 43 Hague Regulations, places an obligation on an Occupying Power to use indefinite internment without trial. In fact, the Fourth Geneva Convention considers internment as a measure of last resort (para. 107).

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It follows that Mr. Al-Jedda was detained unlawfully under Art. 5(1) ECHR (para. 110).

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Reparations

Mr. Al-Jedda had submitted that his unlawful detention merited non-pecuniary damage in the region of € 115,000 euros (para. 112). Mindful of the fact that “non-pecuniary awards serve to give recognition to the fact that moral damage occurred as a result of a breach of a fundamental human right and reflect in the broadest of terms the severity of the damage” and taking into account the duration of Mr. Al-Jedda’s detention, the ECtHR awards him a compensation sum of € 25,000.

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[1] Jurisdiction concerns the issue whether the ECHR is applicable abroad.

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[2] Attribution concerns the issue of who should be held responsible for a rights violation.

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[3] See Article 7 of the ILC Draft Articles on the Responsibility of International Organizations (2011). The Effective Control test for attribution focusses on the question who had effective control over entities carrying out the rights-violation. It should not be conflated with the similar named test establishing a State’s jurisdiction abroad under Article 1 ECHR, requiring (effective) control over a territory.