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

Conduct by national forces participating in a multinational operation is attributable to the United Nations only where the United Nations exercises effective command and control over the conduct in question. Security Council authorisation and reporting requirements do not alone establish such control.

Where a Security Council resolution authorises internment which is necessary for imperative reasons of security, articles 25 and 103 of the United Nations Charter permit the participating state to exercise that power notwithstanding article 5(1) of the European Convention on Human Rights. The Convention right is qualified only so far as the authorised detention inherently requires. Remaining protections must be respected.

A tort committed abroad is ordinarily governed by the law of the country where its constituent events occurred. That rule changes only where another country is substantially more appropriately connected with the issues.

The appellant, a British and Iraqi national, had been detained without charge by British forces in Iraq since October 2004. His internment was said to be necessary for imperative reasons of security. For this appeal, the allegations against him and the necessity of detention were assumed to be true.

The Divisional Court dismissed his claims: [2005] EWHC 1809 (Admin). The Court of Appeal dismissed his appeal: [2006] EWCA Civ 327, [2007] QB 621. The Secretary of State raised a new attribution argument before the House following Behrami and Saramati.

The House considered whether the detention was attributable to the United Nations; whether Security Council Resolution 1546 and articles 25 and 103 of the United Nations Charter qualified article 5(1) of the European Convention on Human Rights; and whether the false-imprisonment claim was governed by English or Iraqi law.

1. Appeal dismissed unanimously. The House held by a majority of four to one that the detention was attributable to the United Kingdom rather than the United Nations. It nevertheless held that the United Kingdom could intern the appellant where this was necessary for imperative reasons of security. The tort claim was governed by Iraqi law.

2. Attribution. Lord Bingham, with whose conclusion Baroness Hale, Lord Carswell and Lord Brown agreed, applied the effective-control principle. The multinational force was established and operated under national, not United Nations, command. The Security Council authorised the force to perform security functions but did not place it at the United Nations' disposal or assume effective command and control. Reporting requirements and a power to terminate the mandate did not alter that conclusion. Behrami and Saramati was distinguished because the Kosovo presences had been established under United Nations auspices. Lord Rodger dissented on this issue. He considered that Resolution 1546 lawfully delegated Chapter VII powers while the Security Council retained ultimate authority and control.

3. Article 5 and the United Nations Charter. Per Lord Bingham, supported in substance by all the other Law Lords, the authorisation in Resolution 1546 was capable of engaging articles 25 and 103 of the Charter. A contributing state which undertook the mission was bound to exercise internment powers when detention was necessary for imperative reasons of security. Article 103 applied notwithstanding that the resolution used the language of authorisation and notwithstanding the special character of the European Convention.

4. The competing obligations had to be reconciled. The United Kingdom could exercise the authorised power of detention, but article 5 was qualified only to the extent inherent in that detention. Baroness Hale emphasised that the right was qualified, not displaced, and that the precise scope and factual application of the authorisation remained open in separate proceedings. Lord Carswell stressed the need for reliable intelligence, regular review and a practicable opportunity to challenge continued detention.

5. Applicable law. Per Lord Bingham, with all members agreeing, section 11(1) of the Private International Law (Miscellaneous Provisions) Act 1995 pointed to Iraqi law because the events constituting the alleged tort occurred in Iraq. The Court of Appeal had made no error in concluding under section 12 that English law was not substantially more appropriate.

1. House of Lords: The appeal was dismissed unanimously: [2007] UKHL 58. The House affirmed the result below, although a majority rejected the Secretary of State's new contention that the detention was attributable to the United Nations.
2. Court of Appeal: The appeal was dismissed by Brooke, May and Rix LJJ: [2006] EWCA Civ 327, [2007] QB 621.
3. High Court, Divisional Court: Moses and Richards JJ rejected the Human Rights Act and common-law claims: [2005] EWHC 1809 (Admin), HRLR 1355.