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.’

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By Susan Breau, Professor of International Law (Flinders University, Australia)

On 30 March 2011, the Security Council acting under Chapter VII of the Charter  adopted Resolution 1975 which urged the defeated President Gbagbo to immediately step aside and declared the situation in Ivory Coast to be a threat to international threat and security.

The resolution also imposed targeted sanctions (freezing of assets, travel bans) against Laurent Gbagbo and other members of his regime.  In its preamble it declared that the attacks currently taking place in Côte d’Ivoire against the civilian population could amount to crimes against humanity and that perpetrators of such crimes must be held accountable under international law and noting that the International Criminal Court may decide on its jurisdiction over the situation in Côte d’Ivoire on the basis of article 12, paragraph 3 of the Rome Statute.

For the purposes of this analysis the resolution also authorised the United Nations Operation in Cote d’Ivoire (UNOCI) to use “all necessary means to carry out its mandate to protect civilians” including preventing the use of heavy weapons.  Surprisingly, the resolution specifically mentioned ‘the French forces’ supporting UNOCI which indirectly authorised the use of force by French forces  in assisting the UN operation to fulfil its mandate.

Importantly, the resolution specificially referred to the ‘primary responsibility’ of each State to protect civilians, thus referring to the responsibility to protect albeit in an oblique way. It can be asserted that together with the recent resolution 1973 on Libya which authorised “all necessary means to protect civilians”, there is a growing body of international practice responding to massive violations of human rights with mandates to use force, if necessary, to protect civilians.

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By Dr Juan Garcia Blesa

Among all the legal questions posed by the Iraq Inquiry, the one that most urgently needs an answer relates to the way international lawyers should look at the interpretation of the purported legal basis used by the UK to attack and invade another sovereign state in 2003.

With regard to this critical issue, the different legal approaches to the relevant UN Security Council resolutions should be assessed by previously revisiting their legal nature as exceptions to a fundamental international rule.

This note was recently used for the purpose of the Surrey International Law Centre (SILC) submission to the Iraq Inquiry on the correct approach to the interpretation of the United Nations Security Council resolutions relevant to the UK’s military intervention against Iraq. The full document is available here.

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