by Hilal Abdul-Razzaq Ali AL-JEDDA
against the United Kingdom
lodged on 3 June 2008
STATEMENT OF FACTS
The applicant, Mr Hilal Abdul-Razzaq Ali Al-Jedda, is a British and Iraqi national who is currently living in Istanbul, Turkey. He is represented before the Court by Mr P. Shiner, a lawyer practising in Birmingham.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The invasion of Iraq, the Coalition Provisional Authority (“CPA”) and the United Nations Security Council Resolutions
On 20 March 2003, a United States of America-led coalition, including British armed forces, invaded Iraq. By 5 April 2003, the British had captured Basra and by 9 April 2003, United States troops had gained control of Baghdad. Major combat operations in Iraq were declared complete on 1 May 2003. As from that date, the United Kingdom became an occupying power under the relevant provisions of the regulations annexed to the 1907 Hague Convention and the 1949 Fourth Geneva Convention.
On 8 May 2003 the Permanent Representatives of the United Kingdom and the United States at the United Nations (“UN”) addressed a joint letter to the President of the UN Security Council (“UNSC”). In it they said that the States participating in the coalition would strictly abide by their obligations under international law, including those relating to the essential humanitarian needs of the Iraqi people; that the United States, the United Kingdom and their coalition partners, acting under existing command and control arrangements through the commander of coalition forces, had created the Coalition Provisional Authority (“CPA”); that the United States, the United Kingdom and their coalition partners, working through the CPA, should among other things provide for security in and for the provisional administration of Iraq; that they would facilitate the efforts of the Iraqi people to take the first steps towards forming a representative government based on the rule of law; and that the UN had a vital role to play in providing humanitarian relief, in supporting the reconstruction of Iraq and in helping in the formation of an Iraqi interim authority.
The UNSC adopted Resolution 1483 on 22 May 2003. Acting under Chapter VII of the UN Charter, the UNSC called on the CPA, consistently with the UN Charter and other relevant international law, to promote the welfare of the Iraqi people and work towards the restoration of conditions of stability and security. The UNSC called upon all concerned to comply fully with their obligations under international law, including in particular the Geneva Conventions of 1949 and the Hague Regulations of 1907. The UNSC further requested the Secretary General to appoint a Special Representative in Iraq: he was to report regularly to the UNSC on his activities under the resolution, which were to co-ordinate the activities of the UN and other international agencies engaged in post-conflict processes and humanitarian assistance, in a number of specified ways including the protection of human rights. The UNSC decided, as it did consistently thereafter, to remain seised of the matter.
By CPA Regulation No 1, dated 16 May 2003, the CPA assumed “all executive, legislative and judicial authority necessary to achieve its objectives, to be exercised under relevant UN Security Council resolutions, including Resolution 1483 (2003), and the laws and usages of war”. Iraqi laws, unless suspended or replaced by the CPA, were to continue to apply insofar as they did not prevent the CPA from exercising its rights and fulfilling its obligations, or conflict with regulations or orders issued by the CPA. CPA Memorandum No 3 (CPA/MEM/27 June 2004/03) addressed issues of criminal procedure. In section 6(4) it referred to standards “in accordance with ... the Fourth Geneva Convention”, which were to apply to all persons who were detained by coalition forces when necessary for imperative reasons of security, providing a right of appeal by an internee to a competent body.
In July 2003 an Iraqi Governing Council (“IGC”) was established, which the CPA was to consult on all matters concerning the temporary governance of Iraq.
Pursuant to UNSC Resolution 1483, the Secretary General established a United Nations Assistance Mission for Iraq (“UNAMI”), a step welcomed by the UNSC in Resolution 1500 of 14 August 2003.
On 16 October 2003, the UNSC adopted Resolution 1511. Acting under Chapter VII of the UN Charter, the UNSC looked forward to the assumption of governmental powers by the people of Iraq and resolved that the UN, through the Secretary General, his Special Representative and UNAMI “should strengthen its vital role in Iraq, including by providing humanitarian relief, promoting the economic reconstruction of and conditions for sustainable development in Iraq, and advancing efforts to restore and establish national and local institutions for representative government”. The Secretary General was to report to the UNSC on his responsibilities under the resolution. The UNSC further determined:
“that the provision of security and stability is essential to the successful completion of the political process ... and to the ability of the United Nations to contribute effectively to that process and the implementation of resolution 1483 (2003), and authorizes a multinational force under unified command to take all necessary measures to contribute to the maintenance of security and stability in Iraq, including for the purpose of ensuring necessary conditions for the implementation of the timetable and programme as well as to contribute to the security of [UNAMI], the Governing Council of Iraq and other institutions of the Iraqi interim administration, and key humanitarian and economic infrastructure”.
Member states were urged to contribute assistance under this UN mandate, including military forces, to the multinational force referred to. The US, on behalf of the multinational force, was requested to report to the Council on the efforts and progress of this force.
On 8 March 2004 the IGC promulgated a transitional administrative law, paving the way towards an interim and then an elected Iraqi government. Reporting to the UNSC on 16 April 2004, the US Permanent Representative said that the multinational force had conducted “the full spectrum of military operations, which range from the provision of humanitarian assistance, civil affairs and relief and reconstruction activities to the detention of those who are threats to security ...”
In a submission made by the CPA to the UN High Commissioner for Human Rights on 28 May 2004 it was stated that the United States and United Kingdom military forces retained legal responsibility for the prisoners of war and detainees whom they respectively held in custody.
On 5 June 2004, the Prime Minister of the Interim Government of Iraq (Dr Allawi) and the US Secretary of State (Mr Powell) wrote to the President of the UNSC. Dr Allawi looked forward to the establishment of a free and democratic Iraq, but stressed that security and stability continued to be essential to the country’s political transition, and asked for the support of the UNSC and the international community until Iraq could provide its own security. He sought a new resolution on the multinational force mandate to contribute to maintaining security in Iraq, “including through the tasks and arrangements set out in the letter” from Mr Powell to the President of the UNSC. Mr Powell in his letter recognised the request of Dr Allawi’s government for the continued presence of the multinational force in Iraq and confirmed that the force, under unified command, was prepared to continue to contribute to the maintenance of security in Iraq. He continued:
“Under the agreed arrangement, the MNF stands ready to continue to undertake a broad range of tasks to contribute to the maintenance of security and to ensure force protection. These include activities necessary to counter ongoing security threats posed by forces seeking to influence Iraq’s political future through violence. This will include combat operations against members of these groups, internment where this is necessary for imperative reasons of security, and the continued search for and securing of weapons that threaten Iraq’s security. A further objective will be to train and equip Iraqi security forces that will increasingly take responsibility for maintaining Iraq’s security. The MNF also stands ready as needed to participate in the provision of humanitarian assistance, civil affairs support, and relief and reconstruction assistance requested by the Iraqi Interim Government and in line with previous Security Council Resolutions.”
He regarded the existing framework governing responsibility for exercise of jurisdiction by contributing states over their military personnel as sufficient, and assured the President that “the forces that make up the MNF are and will remain committed at all times to act consistently with their obligations under the law of armed conflict, including the Geneva Conventions”.
These letters were the immediate prelude to Resolution 1546, adopted by the UNSC on 8 June 2004. The UNSC welcomed the assurances in Mr Powell’s letter and determined that the situation in Iraq continued to constitute a threat to international peace and security. Acting under Chapter VII of the UN Charter, the UNSC described the role of UNAMI, reaffirmed its authorisation under UNSC Resolution 1511 (2003) for the multinational force under unified command, having regard to the annexed letters of Dr Allawi and Mr Powell, and decided
“that the multinational force shall have the authority to take all necessary measures to contribute to the maintenance of security and stability in Iraq in accordance with the letters annexed to this resolution expressing, inter alia, the Iraqi request for the continued presence of the multinational force and setting out its tasks, including by preventing and deterring terrorism, so that, inter alia, the United Nations can fulfil its role in assisting the Iraqi people as outlined in paragraph seven above and the Iraqi people can implement freely and without intimidation the timetable and programme for the political process and benefit from reconstruction and rehabilitation activities; ...”
The UNSC further decided that the mandate for the multinational force should be reviewed at the request of the Government of Iraq or 12 months from the date of the resolution and that the mandate should end on completion of the political process described earlier in the resolution, but the Council undertook to terminate the mandate earlier if requested by the Government of Iraq. The US, on behalf of the multinational force, was again requested to report at stated intervals.
On 27 June 2004 the CPA issued a revised order giving members of the multinational force and the CPA general immunity from Iraqi process, and providing that they should be subject to the exclusive jurisdiction of their sending states. On the following day power was formally transferred to the Iraqi interim government, the CPA was dissolved and the occupation of Iraq by coalition forces came to an end.
After this date there were two further resolutions of the Security Council (Resolution 1637 of 8 November 2005 and Resolution 1723 of 28 November 2006), the effect of which was to maintain the status quo.
On 7 June 2005 (S/2005/373, para 72) the Secretary General reported that 6000 detainees were in the custody of the multinational force and despite the release of some detainees numbers continued to grow. He commented: “Prolonged detention without access to lawyers and courts is prohibited under international law, including during states of emergency”. Such observations were echoed in reports by UNAMI which, in its report on the period 1 July - 31 August 2005, para 12, expressed concern about the high number of persons detained, observing that “Internees should enjoy all the protections envisaged in all the rights guaranteed by international human rights conventions”. In its next report (1 September - 31 October 2005) it repeated this expression of concern (para 6), and advised “There is an urgent need to provide [a] remedy to lengthy internment for reasons of security without adequate judicial oversight”.
2. The applicant’s arrest and detention
The applicant was born in Iraq in 1957. He moved to the United Kingdom in 1992, where he made a claim for asylum and was granted indefinite leave to remain. He was subsequently granted British nationality.
In September 2004 the applicant and his children travelled from London to Iraq, via Dubai. He was arrested and questioned in Dubai by United Arab Emirates intelligence officers, who released him after 12 hours, permitting him and his children to continue their journey to Iraq, where they arrived on 28 September 2004.
On 10 October 2004 the applicant was arrested by United States troops accompanied by Iraqi national guards and British soldiers. He was informed that he was suspected of membership of a terrorist group involved in weapons smuggling and explosive attacks in Iraq; allegations which the applicant denies. He was taken to the Sha’aibah Divisional Temporary Detention Facility in Basra, a detention centre run by British forces and held there until 30 December 2007.
The applicant was detained on the basis that his internment was necessary for imperative reasons of security in Iraq. He was suspected of being a member of a terrorist group involved in weapons smuggling and explosive attacks in Iraq. He was believed by the British authorities to have been personally responsible for recruiting terrorists outside Iraq with a view to the commission of atrocities there; for facilitating the travel into Iraq of an identified terrorist explosives expert; for conspiring with that explosives expert to conduct attacks with improvised explosive devices against coalition forces in the areas around Fallujah and Baghdad; and for conspiring with the explosives expert and members of an Islamist terrorist cell in the Gulf to smuggle high tech detonation equipment into Iraq for use in attacks against coalition forces. These allegations were roundly denied by the appellant and have not been tested in any proceedings. No criminal charges were brought against him. His detention was subject to periodic reviews by the Commander of the multi-national division (south east). At each review it was concluded that the applicant remained a threat and that it was still necessary to intern him.
3. Domestic proceedings
On 8 June 2005 the applicant brought a judicial review claim in the United Kingdom, challenging the lawfulness of his continued detention and also the refusal of the Secretary of State for Defence to return him to the United Kingdom.
The Secretary of State accepted that, even though he was outside the United Kingdom, the applicant’s detention within a British military facility brought him within the jurisdiction of the Human Rights Act 1998 (“HRA”). However, the Secretary of State contended that Article 5 of the Convention did not apply to the applicant because his detention was authorised by United Nations Security Council Resolution (“UNSCR”) 1546 (see below) and, as a matter of international law, the effect of the UNSCR was to displace Article 5 in relation to it. He also denied that his refusal to return the applicant to the United Kingdom was unreasonable.
In his judgment in the Divisional Court (R. (on the application of Al-Jedda) (FC) (Appellant) v Secretary of State for Defence (Respondent),  EWHC 1809 (Admin)), Moses J held that UNSCR 1546 authorised British forces within the multi-national force to use internment “where necessary for imperative reasons of security in Iraq”; that in the light of inter alia Article 25 of the UN Charter the authorisation under UNSCR 1546 imposed an obligation on the British forces to intern where necessary; that this obligation, by virtue of Article 103 of the UN Charter (see below), “prevailed over other treaty obligations such as Article 5 of the ECHR”; and therefore that the UNSCR overrode Article 5 of the Convention in relation to the applicant’s detention in Basra.
The applicant appealed to the Court of Appeal (Lord Justice Brooke, Lord Justice May and Lord Justice Rix, see R. (on the application of Al-Jedda) (FC) (Appellant) v Secretary of State for Defence (Respondent), 2006] EWCA Civ 327), which upheld the Divisional Court’s judgment. Brooke LJ, with whose judgment the other judges agreed, held inter alia that binding Security Council decisions under Chapter VII superseded all other treaty commitments and that there was no room for any argument that human rights treaties fell into some special category. The applicant’s rights under Article 5 of the Convention were, therefore, qualified by UNSCR 1546.
The applicant appealed to the House of Lords (Lord Bingham of Cornhill, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell and Lord Brown of Eaton-under-Heywood: see R. (on the application of Al-Jedda) (FC) (Appellant) v Secretary of State for Defence (Respondent)  UKHL 58, 12 December 2007).
Before the House of Lords, the Secretary of State raised a new argument, based on the Court’s decision in Behrami v. France; Saramati v. France, Germany and Norway (dec) [GC], nos. 71412/01 and 78166/01, ECHR 2007, that the applicant’s claim under the Convention was incompatible ratione personae because his detention in Iraq was attributable to the UN and not to the United Kingdom. The majority of the House of Lords (Lord Roger dissenting on this point) rejected the parallel drawn with Behrami and affirmed that the applicant’s detention was attributable to the United Kingdom.
The House of Lords unanimously upheld the judgment of the Court of Appeal that Article 103 of the UN Charter gave primacy to resolutions of the Security Council, even in relation to human rights agreements. Lord Bingham explained:
“Emphasis has often been laid on the special character of the European Convention as a human rights instrument. But the reference in article 103 to ‘any other international agreement’ leaves no room for any excepted category, and such appears to be the consensus of learned opinion. The decision of the International Court of Justice (Questions of Interpretation and Application of the 1971 Montreal Convention Arising From the Aerial incident at Lockerbie (Libyan Arab Jamahiriya v United Kingdom)  ICJ Rep 3, para 39 and Application of the Convention on the Prevention and punishment of the Crime of Genocide  ICJ Rep 325, 439-440, paras 99-100 per Judge ad hoc Lauterpacht) give no warrant for drawing any distinction save where an obligation is jus cogens and according to Judge Bernhardt it now seems to be generally recognised in practice that binding Security Council decisions taken under Chapter VII supersede all other treaty commitments (The Charter of the United Nations: A Commentary 2nd ed, ed Simma, pp 1299-1300).”
In Lord Bingham’s view, the only way to reconcile the duty to detain under UNSCR 1546 and the fundamental right not to be detained under Article 5 of the Convention was for the former to qualify (but not displace) the latter:
“the UK may lawfully, where it is necessary for imperative reasons of security, exercise the power to detain authorised by UNSCR 1546 and successive resolutions, but must ensure that the detainee’s rights under article 5 are not infringed to any greater extent that is inherent is such detention”.
B. Relevant international law and practice
1. The Charter of the UN, 1945
Article 25 of the Charter provides:
“The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.”
Chapter VII of the Charter is entitled “Action with respect to threats to the peace, breaches of the peace and acts of aggression”. Article 39 provides:
“The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.”
Articles 41 and 42 read as follows:
“41. The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.”
42. Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.”
Articles 43-45 provide for the conclusion of agreements between member states and the UNSC for the former to contribute to the latter land and air forces necessary for the purpose of maintaining international peace and security. No such agreements have been concluded. There is, consequently, no basis in the Charter for the UN to oblige Member States to contribute resources to Chapter VII missions.
Chapter VII continues:
The action required to carry out the decisions of the Security Council for the maintenance of international peace and security shall be taken by all the Members of the United Nations or by some of them, as the Security Council may determine.
Such decisions shall be carried out by the Members of the United Nations directly and through their action in the appropriate international agencies of which they are members.
The Members of the United Nations shall join in affording mutual assistance in carrying out the measures decided upon by the Security Council.”
Article 103 of the Charter reads as follows:
“In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”
The International Court of Justice has held Article 103 to mean that the Charter obligations of UN member states prevail over conflicting obligations from another international treaty, regardless of whether the latter treaty was concluded before or after the UN Charter or was only a regional arrangement (Nicaragua v. United States of America, ICJ Reports, 1984, p. 392, at § 107). The ICJ has also found Article 25 to mean that UN member states’ obligations under a UNSC Resolution prevail over obligations arising under any other international agreement (see the cases cited by Lord Bingham, above).
In Kadi and Al-Barakaat v European Union Council (Joined Cases C-402/05 & C-415/05P), the applicants’ funds and other financial resources were frozen under EC Regulations 467/2001 and its replacement, Regulation 881/2002. The Regulations were adopted on the basis of Articles 60 EC, 301 EC and 308 EC in order to give effect to Council Common Position 2002/402/CFSP. That Common Position, in turn, reflected UNSCRs 1267(1999), 1333(2000) and 1390(2000), which dictated inter alia that all States were to take measures to freeze the funds and other financial assets of individuals and entities associated with Osama bin Laden, the al’Qaeda network and the Taliban. Those individuals, including the applicant, were identified by the Sanctions Committee of the UNSC.
Before the Court of First Instance (“CFI”), the applicant argued that the Council had lacked competence to adopt the Regulations freezing his funds because the process violated his fundamental rights to a fair trial and to respect for his property, as protected by the EC Treaty. The CFI rejected the applicant’s claims and upheld the Regulations, essentially finding that the effect of Article 103 of the UN Charter was to give UNSCRs precedence over other international obligations (save jus cogens), which included the EC Treaty. Thus the CFI concluded that it had no authority to review, even indirectly, UNSCRs in order to assess their conformity with fundamental rights.
Mr Kadi appealed to the Court of Justice of the European Communities (ECJ) where, together with another appeal, it was considered by the Grand Chamber. In its judgment of 3 September 2008, the ECJ overturned the CFI’s decision and found that the contested Regulation should be annulled. The ECJ rejected the conclusion that Article 103 of the UN Charter prevented it from reviewing the action of a member state giving effect to a binding UNSCR for compatibility with “the fundamental rights forming an integral part of the general principles of Community law”. Indeed, it concluded that such a review was necessary. In coming to this conclusion the ECJ first recalled that the European Community is “based on the rule of law”. It then confirmed that fundamental rights now formed “an integral part of the general principles of law whose observance the Court ensures” – also noting the “special significance” of the Convention in shaping those fundamental rights. Furthermore, it was clear from case-law that “respect for human rights is a condition of the lawfulness of Community acts”. It followed that “the obligations imposed by an international agreement cannot have the effect of prejudicing the constitutional principles of the EC Treaty, which include the principle that all Community acts must respect fundamental rights”. While the ECJ accepted that it was not for the “Community judicature” to review the lawfulness of the resolutions of international bodies, it could review the act of the Member State that gave effect to that resolution, and doing so “would not entail any challenge to the primacy of the resolution in international law”.
The ECJ accepted that the EC “must respect international law in the exercise of its powers” and that “observance of the undertakings given in the context of the United Nations is required ... when the Community gives effect ... to resolutions adopted by the Security Council under Chapter VII”. However, the ECJ went on to conclude that:
“it is not a consequence of the principles governing the international legal order under the United Nations that any judicial review of the internal lawfulness of the contested regulation in the light of fundamental freedoms is excluded by virtue of the fact that the measure is intended to give effect to a resolution of the Security Council adopted under Chapter VII”.
2. Attribution of the conduct of armed forces to the UN
The International Law Commission (“ILC”), in Article 5 of its draft Articles on the Responsibility of International Organizations (adopted in May 2004), stated as follows:
“Conduct of organs or agents placed at the disposal of an international organization by a state or another international organization
The conduct of an organ of a state or an organ or agent of an international organization that is placed at the disposal of another international organization shall be considered under international law an act of the latter organization if the organization exercises effective control over that conduct.”
The ILC further stated, in paragraphs 1 and 6-7 of its commentary on this article (General Assembly Official Records 59th Session, Supp No 10 (A/59/10)):
“1. When an organ of a state is placed at the disposal of an international organization, the organ may be fully seconded to that organization. In this case the organ’s conduct would clearly be attributable only to the receiving organization ... Article 5 deals with the different situation in which the lent organ or agent still acts to a certain extent as organ of the lending state or as organ or agent of the lending organization. This occurs for instance in the case of military contingents that a state placed at the disposal of the [UN] for a peacekeeping operation, since the state retains disciplinary powers and criminal jurisdiction over the members of the national contingent. In this situation the problem arises whether a specific conduct of the lent organ or agent has to be attributed to the receiving organization or to the lending state or organization ...
6. Practice relating to peacekeeping forces is particularly significant in the present context because of the control that the contributing state retains over disciplinary matters and criminal affairs. This may have consequences with regard to attribution of conduct ...
Attribution of conduct to the contributing state is clearly linked with the retention of some powers by that state over its national contingent and thus on the control that the state possesses in the relevant respect.
7. As has been held by several scholars, when an organ or agent is placed at the disposal of an international organization, the decisive question in relation to attribution of a given conduct appears to be who has effective control over the conduct in question.”
Invited by the ILC to comment on the attribution of the conduct of peacekeeping forces to the UN or to contributing states, the UN Secretariat responded (A/CN.4/545, 25 June 2004, pp 17-18):
“The question of attribution of the conduct of a peacekeeping force to the United Nations or to contributing states is determined by the legal status of the force, the agreements between the United Nations and contributing states and their opposability to third states.
A United Nations peacekeeping force established by the Security Council or the General Assembly is a subsidiary organ of the United Nations. Members of the military personnel placed by member states under United Nations command although remaining in their national service are, for the duration of their assignment to the force, considered international personnel under the authority of the United Nations and subject to the instructions of the force commander. The functions of the force are exclusively international and members of the force are bound to discharge their functions with the interest of the United Nations only in view. The peacekeeping operation as a whole is subject to the executive direction and control of the Secretary-General, under the overall direction of the Security Council or the General Assembly as the case may be.
As a subsidiary organ of the United Nations, an act of a peacekeeping force is, in principle, imputable to the Organization, and if committed in violation of an international obligation entails the international responsibility of the Organization and its liability in compensation. The fact that any such act may have been performed by members of a national military contingent forming part of the peacekeeping operation does not affect the international responsibility of the United Nations vis-à-vis third states or individuals.
Agreements concluded between the United Nations and states contributing troops to the Organization contain a standard clause on third-party liability delineating the respective responsibilities of the Organization and contributing states for loss, damage, injury or death caused by the personnel or equipment of the contributing state. Article 9 of the Model Memorandum of Understanding between the United Nations and [participating state] contributing resources to [The United Nations Peacekeeping Operation] provides in this regard:
‘The United Nations will be responsible for dealing with any claims by third parties where the loss of or damage to their property, or death or personal injury, was caused by the personnel or equipment provided by the Government in the performance of services or any other activity or operation under this memorandum. However if the loss, damage, death or injury arose from gross negligence or wilful misconduct of the personnel provided by the Government, the Government will be liable for such claims’ (A/51/967.annex).
While the agreements between the United Nations and contributing states divide the responsibility in the relationship between them, they are not opposable to third states. Vis-à-vis third states and individuals, therefore, where the international responsibility of the Organization is engaged, liability in compensation is, in the first place, entailed for the United Nations, which may then revert to the contributing state concerned and seek recovery on the basis of the agreement between them.
The principle of attribution of the conduct of a peacekeeping force to the United Nations is premised on the assumption that the operation in question is conducted under United Nations command and control, and thus has the legal status of a United Nations subsidiary organ. In authorized chapter VII operations conducted under national command and control, the conduct of the operation is imputable to the state or states conducting the operation. In joint operations, namely, those conducted by a United Nations peacekeeping operation and an operation conducted under national or regional command and control, international responsibility lies where effective command and control is vested and practically exercised (see paras 17-18 of the Secretary-General’s report A/51/389).”
The cited paragraphs in the Secretary-General’s report A/51/389 (20 September 1996) read:
“17. The international responsibility of the United Nations for combat-related activities of the United Nations forces is premised on the assumption that the operation in question is under the exclusive command and control of the United Nations. Where a Chapter VII-authorized operation is conducted under national command and control, international responsibility for the activities of the force is vested in the state or states conducting the operation. The determination of responsibility becomes particularly difficult, however, in cases where a state or states provide the United Nations with forces in support of a United Nations operation but not necessarily as an integral part thereof, and where operational command and control is unified or coordinated. This was the case in Somalia where the Quick Reaction Force and the US Rangers were provided in support of the United Nations Operation in Somalia (UNOSOM II), and this was also the case in the former Yugoslavia where the Rapid Reaction Force was provided in support of the United Nations Protection Force (UNPROFOR).
18. In joint operations, international responsibility for the conduct of the troops lies where operational command and control is vested according to the arrangements establishing the modalities of cooperation between the state or states providing the troops and the United Nations. In the absence of formal arrangements between the United Nations and the state or states providing troops, responsibility would be determined in each and every case according to the degree of effective control exercised by either party in the conduct of the operation.”
The UN Secretariat was further invited by the ILC to address the following question (see A/CN.4/556, 12 May 2005, p. 4):
“In the event that a certain conduct, which a member state takes in compliance with a request on the part of an international organization, appears to be in breach of an international obligation both of that state and of that organization, would the organization also be regarded as responsible under international law? Would the answer be the same if the state’s wrongful conduct was not requested, but only authorized by the organization?
The Secretariat’s answer was (ibid, p. 46):
“As for the third question raised by the commission, we are not aware of any situation where the Organization was held jointly or residually responsible for an unlawful act by a state in the conduct of an activity or operation carried out at the request of the Organization or under its authorization. In the practice of the Organization, however, a measure of accountability was nonetheless introduced in the relationship between the Security Council and member states conducting an operation under Security Council authorization, in the form of periodic reports to the Council on the conduct of the operation. While the submission of these reports provides the Council with an important ‘oversight tool’ the Council itself or the United Nations as a whole cannot be held responsible for an unlawful act by the state conducting the operation, for the ultimate test of responsibility remains ‘effective command and control’.”
The applicant complains that he was detained in breach of Article 5 § 1 of the Convention.
QUESTIONS TO THE PARTIES
3. If the detention was attributable to the United Kingdom, what was the effect of the legal regime established pursuant to United Nations Security Council Resolution 1546 (and subsequent resolutions) on the respondent State’s obligations under Article 5 of the Convention? In particular:
(a) what was the obligation placed on the United Kingdom by UNSCR 1546? Did it include an obligation to intern the applicant?
(b) did UNSCR 1546 entirely exclude the application of Article 5 of the Convention?
(c) should UNSCR 1546 be interpreted in the light of Article 5 of the Convention?
(d) if the requirements of Article 5 were “qualified” by the obligations arising out of UNSCR 1546, in what way were they “qualified”?
4. Were the requirements of Article 5 in any way qualified or displaced by any other provision of international law concerning the law of armed conflict or the obligations of an occupying power?
5. In conclusion, has there been a violation of Article 5 § 1 in this case?