The legality or otherwise of the invasion and occupation of Iraq in 2003 has been the biggest international legal issue of our time – and it continues to cause division and disagreement not only in the Dog and Duck but also in the House of Lords, as today’s Lords judgment in this case shows.
Mr. Al Jedda was born in Iraq, but successfully claimed asylum in Britain in 1992 and then obtained British citizenship. From about 2000 it seems from reading the judgments in the Divisional Court and the Court of Appeal that while claiming benefit in Britain he travelled widely in the middle east, claiming to be running a honey business and buying cars in Dubai to resell them in Iraq. He was imprisoned in Syria for almost a year, and married two wives, before being arrested in Baghdad in September 2004 on suspicion of involvement in terrorism and detained by British troops in Basra – http://www.gooakley.com/ where he’s been kept ever since. I mention these facts for two reasons: first, because I think it’s important to bear in mind the real-life background to major terrorism cases, as far as we can know them; and second because, if it’s true as the government claims that this man is such a threat, there are real questions to be answered about why the UK has been quite so welcoming towards him, and financially supportive of him after that. This case has ended up in Basra but seems to have begun in Londonistan.
Mr. Al Jedda complained that his continuing preventative detention breached the article 5 Convention right to liberty, but he lost at first instance and on appeal: each court decided that the UK’s obligations under the UN Security Council Resolutions authorising the role of the multinational force in Iraq effectively trump the provisions of the ECHR and the Human Rights Act. The appeal to the Lords dealt not only with this point, but with an additional point not argued below, but arising from the decision of the European Court of Human Rights in the Behrami and Saramati case in May: whether the detention is, in international law, not in fact the responsibility of the UK, but of the UN which has authorised it. In Behrami, the ECtHR had decided that actions of French troops acting in Kosovo as part of KFOR were not the responsibility of France, but of the UN. The case against France was thrown out – and the British government argued that Mr. Al Jedda’s claim against the government should be dismissed on the same basis. It’s clear that Security Council Resolution 1546 authorises UK troops to intern people where necessary for imperative reasons of security, but the Lords were divided on whether this meant the UN was legally responsible for internment.
Lord Bingham, Lady Hale and Lord Carswell thought any comparison with Kosovo failed entirely: in their view, the fact that the occupation of Iraq was only authorised or regularised by the UN retrospectively meant the legal position was quite different. UK troops are not acting on behalf of the UN or controlled by it, so the UK remains cheap oakley responsible. Lord Brown thought the matter more complex, but in the end agreed with them that the position is materially different from that in Kosovo. Only Lord Rodger though the position exactly analagous to Behrami: in his view the fact that the initial occupation of Iraq was not authorised by the UN is legally irrelevant because internment was authorised by the UN – with the result that UK troops were obliged in international law to intern people where truly imperative – before the arrest of Mr. Al Jedda. It’s difficult not to detect, underlying this disagreement, broader questions of the political legitimacy of UK action in Iraq – the question people have been disagreeing about for four years or more. The government lost by four Law Lords to one on this, which may show they’re not always so out of touch with public opinion as people think.
The government did win, ultimately, though: the Lords unanimously agreed that Convention rights are qualified or displaced by the UN authorisation – obligation, even, in appropriate circumstances – to intern those considered a real threat. Lady Hale was clearly uneasy with this outcome, though she didn’t dissent from it: see paragraphs 128-129 of her speech. But Lords Brown and Carswell agreed with Lord Bingham that article 5 does not prevent UK troops exercising the power to detain Mr. Al Jedda under the UN Resolution. Lord Rodger also agreed the authority of the UN Resolution prevails.
Lord Carswell’s reasoning is clearest, at paragraphs 132-136 of his speech: the effect of article 103 of the UN Charter:
In the event cheap oakley sunglasses 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
together with paragraph 10 of UNSCR 1546 which authorises, in accordance with a letter (by the then US Secretary of State Colin Powell) annexed to it
internment where this is necessary for imperative reasons of security
means that despite article 5 and the Human Rights Act, UK forces may lawfully intern Mr. Al Jedda in Iraq if that is imperative for security reasons. The four Lords in the majority all agreed that there must be safeguards to ensure the power to intern is exercised in a way which minimises the infringement of the detainee’s article 5 rights.
There was a third legal issue: but an easy one to resolve. All the Lords agreed ordinary Iraqi civil law, not the English law of tort, governs the actions of UK forces in Iraq.