UN-backed occupying forces’ human rights responsibility: ECtHR land mark decision in Al-Jedda v UK

July 11, 2011

By Belachew M Fikre, Lecturer at Addis Ababa University, Institute of Human Rights

The European Court of Human Rights (ECtHR) has given on the 7th July 2011 a judgement (Al-Jedda case) holding the United Kingdom responsible for the acts of its military forces in Iraq in what may be called a significant blow to the ever unchecked multinational military operations under the names of maintaining international peace and security, war on terror, or as recently emerging dubious guise ‘to protect civilians and civilian populated areas under threat of attack.’

The case (Al-Jedda v the United Kingdom, available here) involved an Iraq-born individual who had been interned or detained in Basra for over three years, between 2004 and 2007. Basra internment centre was controlled and run by the British forces in Iraq and he was held for purposes of investigation on his alleged involvement, among others, in recruiting terrorists outside Iraq to commit atrocities in Iraq, for helping an identified terrorist explosives expert travel into Iraq, and conspiring with that explosives expert to conduct attacks with improvised explosive devises against coalition forces near Fallujah and Baghdad. 

After his release (and being denied re-entry into the UK to which he had become a national), Al-Jedda had brought actions, though unsuccessfully, before various national organs until his case was dismissed by the House of Lords which reiterated that because of the UN Security Council’s (UNSC) Resolution, the British government’s responsibility under the European Convention on Human Rights (ECHR) cannot be invoked. The House of Lords reasoned that the mandate the UNSC Resolution 1546 had placed on the UK government brings the UN as the proper organ responsible for the internment measures taken on Al-Jedda which, because of Article 103 of the UN Charter displaced the applicability of Article 5(1) of the ECHR. According to Article 103 of the UN Charter ‘in the event of conflict between the obligations of the members of the UN under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.’

This latter point has been contentious as can be observed from the dissenting Judge Poalelungi’s (Moldovan) opinion who, concurring with the House of Lords’ position, disagreed with the majority. He expressed his disagreements stating:

The Security Council can only authorise States to use military force [and] the primacy clause in Article 103 of the Charter must also apply where a Member State chooses to take up such authorisation and contribute to an international peace-keeping operation under a Security Council mandate. To conclude otherwise would seriously undermine the effectiveness of the UN’s role in security world peace.’ (See  the dissenting opinion part Para 4)

Thus, one of the critical questions in this case has been whether or not the obligation that the UK government has had based on UNSC resolution 1546 contradicted its human rights obligations emanating from, inter alia, Article 5(1) of the ECHR. Put differently, it was a matter of deciding whether or not internment as one peace enforcement mechanism was authorised by Resolution 1546, part of which reads ‘…the multinational force shall have the authority to take all necessary measures to contribute to the maintenance of security and stability in Iraq’ (para 10). If the answer would be in the affirmative, one would have said that Article 103 of the Charter prevails and consequently that would have avoided UK’s human rights responsibility. However, the Court has responded to this question in the negative by reasoning as follows:

[para 102] Court considers that, in interpreting its resolutions, there must be a presumption that the Security Council does not intend to impose any obligation on Member States to breach fundamental principles of human rights. In the event of any ambiguity in the terms of a Security Council Resolution, the Court must therefore choose the interpretation which is most in harmony with the requirements of the Convention and which avoids any conflict of obligations. In the light of the United Nations’ important role in promoting and encouraging respect for human rights, it is to be expected that clear and explicit language would be used were the Security Council to intend States to take particular measures which would conflict with their obligations under international human rights law. [para 105] The Court does not consider that the language used in this Resolution indicates unambiguously that the Security Council intended to place Member States within the Multi-National Force under an obligation to use measures of indefinite internment without charge and without judicial guarantees, in breach of their undertakings under international human rights instruments including the Convention.’

The case, apart from its potential of opening the door for many like claims, also signals a word of caution to those states currently engaged in similar operations across the world. It clearly reiterates the international community’s commitment for the universal respect of human rights in times of both peace or otherwise. Moreover, the case has explicated the unhelpful sides of vaguely written ‘you-can-do-anything’ type of authorisations that the UNSC resolutions have come to amply use. One must recall that almost similar type of authorisation has been granted recently with regard to Libya under UNSC Resolution 1973 that authorises the coalition force, among others, ‘to take all necessary measures to protect civilians and civilian populated areas under threat of attack.’ 

References

Al-Jedda v The United Kingdom, App no., 27021/08, European Court of Human Rights, 7 July 2011
UN Security Council, Report of the Secretary-General Pursuant to Paragraph 30 of Resolution 1546 (2004), 7 March 2007, S/2007/126
United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI
Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ETS 5

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