Al-Jedda, R (on the application of) v Secretary of State for Defence

A binding Security Council resolution made under Chapter VII may, through article 103 of the UN Charter, prevail over conflicting obligations under human-rights treaties, except in relation to ius cogens. The resolution qualifies Convention rights only to the extent of the conflict.

Authorised internment remains subject to the demanding requirement of imperative reasons of security, periodic review and proportionality. The Human Rights Act 1998 provides only Convention rights having effect in relation to the United Kingdom. In a tort arising from detention in Iraq, Iraqi law applies unless English law is substantially more appropriate under the Private International Law (Miscellaneous Provisions) Act 1995.

Mr Al-Jedda, a dual British and Iraqi national, was detained by British forces in Iraq in October 2004 on suspicion of involvement in terrorism. He challenged the lawfulness of his continuing detention and the Secretary of State’s refusal to return him to the United Kingdom.

The Divisional Court dismissed his judicial review claim in [2005] EWHC 1809 (Admin). It held that Article 5(1) of the European Convention on Human Rights, as given effect by the Human Rights Act 1998, was qualified by Security Council Resolution 1546. The appeal raised human-rights and common-law issues, including the effect of article 103 of the UN Charter and the applicable law governing detention in Iraq.

1. The appeal was dismissed unanimously. Lord Justice Brooke gave the judgment, with Lord Justices May and Rix agreeing.
2. Article 43 of the Hague Regulations embodied a rule of customary international law. It empowered an occupying power to intern a person who posed an immediate security threat within occupied territory, whatever the person’s nationality. The Fourth Geneva Convention regulated the exercise of that power in relation to protected persons but did not itself create the power.
3. Under article 103 of the UN Charter, the United Kingdom, acting pursuant to the authority given by Security Council Resolution 1546, was performing an obligation imposed by the resolution for the purposes of article 25. That obligation prevailed over conflicting treaty obligations. The rule applied to a Security Council authorisation to act, as well as to a binding decision. No special exception existed for human-rights treaties, apart from ius cogens.
4. The Charter’s references to human rights in its Preamble, articles 1(3), 55 and 56 were aspirational and did not create a parallel immediately enforceable obligation overriding the resolution. Resolution 1546 authorised internment for imperative reasons of security, including of persons of any nationality. It qualified Article 5(1) of the Convention and article 9 of the ICCPR only to the extent of conflict. Other Convention and international-law protections remained in force.
5. The Security Council had not authorised indefinite detention. Continuing detention required review at least every six months and remained lawful only while necessary for imperative reasons of security. Decision-makers should also consider whether internment was proportionate to the threat.
6. Following [2005] UKHL 57, the Human Rights Act 1998 brought home only Convention rights having effect in relation to the United Kingdom. A person whose claim would fail in Strasbourg could not obtain a better domestic remedy under sections 6 and 7.
7. English law did not govern the common-law claim. Under sections 11 and 12 of the Private International Law (Miscellaneous Provisions) Act 1995, the factors connecting the detention and emergency to Iraq were insufficient to make English law substantially more appropriate. The refusal to return Mr Al-Jedda was not irrational, and introducing habeas corpus at that stage was inappropriate.

• Court of Appeal (Civil Division): the appeal was unanimously dismissed in [2006] EWCA Civ 327.
• Administrative Court Divisional Court: the application for judicial review was dismissed in [2005] EWHC 1809 (Admin).