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

The House considered three principal legal issues: (1) whether conduct of United Kingdom forces in detaining the appellant in Iraq was attributable in international law to the United Nations such that the European Convention on Human Rights would not have effect in relation to the United Kingdom; (2) whether, if the Convention did apply, United Nations Security Council resolutions adopted under Chapter VII (notably UNSCR 1546 (2004)) and articles 25 and 103 of the UN Charter displaced or qualified the appellant's right under article 5(1) ECHR; and (3) whether English or Iraqi law governed a domestic tort claim for false imprisonment.

Key legal principles and holdings:

• Attribution: under the principles explained in the International Law Commission's draft articles (and discussed in Behrami/Saramati), conduct of national forces may be attributable to the United Nations where the Security Council has lawfully delegated Chapter VII powers and retains ultimate authority and control. The House examined whether those conditions obtained in Iraq under UNSCRs 1511 and 1546.
• UN Charter supremacy: articles 25 and 103 mean that obligations under valid Security Council decisions adopted under Chapter VII can prevail over conflicting treaty obligations of member states; state practice and authoritative commentary support applying article 103 to resolutions couched as authorisations of force as well as to mandatory measures.
• Qualification (not absolute displacement) of Convention rights: where a Security Council resolution authorises measures such as internment as necessary for imperative reasons of security, a member state may lawfully detain in fulfilment of its Charter obligations, but must ensure that any interference with Convention rights is no greater than is inherent in that lawful detention and must observe practicable safeguards.
• Private international law: under the general rule in the Private International Law (Miscellaneous Provisions) Act 1995 the law of the place where the tort occurred applies; the House held that Iraqi law governed the appellant's tort claim and that the Court of Appeal's assessment that English law was not substantially more appropriate was correct.

This appeal concerned a British-Iraqi national detained by United Kingdom forces in Iraq from October 2004 without charge. He challenged the lawfulness of his detention under article 5(1) ECHR (enforceable domestically through the Human Rights Act 1998) and brought a tort claim for false imprisonment.

Procedural posture: The appellant lost in the Queen's Bench Divisional Court and in the Court of Appeal ([2005] EWHC 1809 (Admin); [2006] EWCA Civ 327). The House of Lords heard fresh argument, including a new, agreed issue arising from the European Court's Grand Chamber decision in Behrami and Saramati.

Nature of relief sought: A declaration that detention was unlawful under article 5(1) ECHR and a mandatory order for release or transfer; damages for wrongful imprisonment were also pleaded.

Issues framed:

• Whether the acts of UK forces in detaining the appellant were attributable to the United Nations in international law (so that the European Court would lack competence ratione personae and the Convention would not have effect in relation to the United Kingdom for those acts).
• Whether, if the Convention applied, obligations under UNSCR 1546 (and related resolutions) and articles 25 and 103 of the UN Charter displaced or qualified article 5(1) so as to permit internment for imperative security reasons.
• Whether English or Iraqi law governed any domestic tort claim.

Reasoning and outcome: The House reviewed the ILC draft articles on attribution, the UN Secretariat and Secretary-General materials, the terms and effect of UNSCRs 1483, 1511 and 1546, and the Grand Chamber's reasoning in Behrami. The justices differed in emphasis on the first issue: some concluded the detention was attributable to the UN under the delegation/ultimate-control model explained in Behrami and that the European Court would decline jurisdiction ratione personae; others found the factual and legal situation in Iraq materially different from Kosovo and that the UN had not exercised effective command and control in a way that rendered UK conduct attributable to the UN. On the second issue the majority held that, even where the Convention remained applicable, Security Council decisions under Chapter VII (as authorisations or mandates implemented by member states) engage articles 25 and 103 so that member states must carry out the tasks entrusted to them; consequently, where internment is necessary for imperative reasons of security pursuant to a Chapter VII mandate, the Convention right is qualified to the extent required by the Charter obligation, subject to safeguards to minimise interference with Convention rights. On the third issue the House affirmed that Iraqi law governed the tort claim under the 1995 Act.

Disposition: The appeal was dismissed. The House invited submissions on costs.

Appeal dismissed. The House analysed three issues: (1) whether detention was attributable to the United Nations and thus outside the Convention's scope — the House examined the Behrami/Saramati test of lawful delegation and effective/ultimate command and control and found material distinctions in the Iraq context, but different Law Lords took different views on attribution; (2) whether Security Council resolutions and articles 25 and 103 of the UN Charter displace or qualify article 5(1) ECHR — the majority held that Chapter VII resolutions which authorise measures (including internment where necessary for imperative security reasons) engage article 103 so that member states must comply, and accordingly Convention rights are qualified to the extent required by those lawful obligations though safeguards must be maintained; (3) whether English or Iraqi law governs a tort claim — Iraqi law governs under the Private International Law (Miscellaneous Provisions) Act 1995. For these reasons the appellant's claims failed and the appeal was dismissed.

Divisional Court: R (Al-Jedda) v Secretary of State for Defence [2005] EWHC 1809 (Admin); Court of Appeal: [2006] EWCA Civ 327, [2007] QB 621; appeal to House of Lords: [2007] UKHL 58.