No Derogation, No Military Detention: The ECHR in Al-Jeddah v. UK

[UPDATE: Please note the updated, italicized text below.  Also check out Marko Milanovic's take on al-Jedda and al-Skeini, here.] Hilal Abdul-Razzaq Ali Al-Jedda is a dual citizen of Iraq and Great Britain.  He left the UK in 2004 to travel to Iraq, along with four relatives.  He was detained en route by UAE security officials in Dubai, but allowed to continue on, arriving in Baghdad in late September.  Two weeks later, he was arrested by U.S. soldiers, and eventually was transferred to British control in Basrah.  He was held as a security internee for approximately three years, on the theory that he was involved in recruiting individuals abroad to commit terrorist acts in Iraq, that he was involved in helping a particular explosives expert to get into Iraq, that he conspired with that expert to carry out IED attacks, and that he conspired with others to get IED-related equipment into Iraq.  In the interim, British authorities took away his citizenship (a decision later upheld by the Special Immigration Appeals Commission, on roughly the same grounds as specified above).  Not long after his detention began, a suit was filed on his behalf in the UK, under the Human Rights Act, arguing that his detention violated Article 5, section 1 of the European Convention on Human Rights.  Article 5 articulates the right to liberty, and section 1 specifies that “[n]o one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

• (a) the lawful detention of a person after conviction by a competent court;
• (b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
• (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority of reasonable suspicion of having committed and offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
• (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
• (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts, or vagrants;
• (f) the lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

No one claimed, of course, that the six stated exceptions were applicable here.  The UK’s argument instead relied on UN Security Council Resolution 1546.  Paragraph 10 of UNSCR 1546 authorized the Multi-National Force-Iraq 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...,” and those letters included U.S. Secretary of State Colin Powell’s undertaking that the MNF-I would engage in “internment where this is necessary for imperative reasons of security,” among other things. [Note: I’ve written a longish article examining the evolution of the detention regime in Iraq over time, here (see pp.574-77 in particular)]   The UK thus argued in response to Al-Jedda’s application that UNSCR 1546 overrode ECHR Article 5(1).  Al-Jedda responded by arguing that UNSCR 1546 did not impose an affirmative obligation on the UK to employ internment.  The UK later added the argument that the detention of Al-Jedda was, in any event, effectively a UN-administered detention beyond the scope of the ECHR, rather than a British-administered detention. Much litigation flowed from all this, and it came to a head last week when the European Court of Human Rights ruled in Al-Jedda’s favor.  Here are the points most relevant from a U.S. perspective: Was It “British-Administered” Detention, or “UN-Administered” Detention? This argument parallels the argument the U.S. government offered in connection with habeas litigation brought by U.S. citizens held in Iraq near this period (i.e., the government resisted habeas in part on the ground that detention under color of the MNF-I was not actually detention by the U.S. government).  That argument failed in the U.S. habeas context, and the UN argument similarly is rejected here.  The ECHR held that the test for whether the UK or the UN was the responsible party boiled down to whether the international organization exercised “effective control” over the activities of the state’s forces.  As the UN did not have effective control over British detention operations in Basrah, the ECHR concludes that this situation is best understood as British-administered detention.  Thus Article 5(1) had to be considered. Did UNSCR 1546 Displace ECHR Article 5(1)? As a threshold matter, it is important to note that ECHR Article 15 provides that a member state may derogate from Article 5 obligations “in time of war or other public emergency threatening the life of the nation,” albeit only “to the extent strictly required by the exigencies of the situation.”  Here, there was no derogation; I’d be interested in hearing from readers whether there is some reason to think it would not have been legally or politically possible for the UK to have issued such a derogation in order to preclude litigation just like this. In any event, there being no derogation, the UK was left to argue that UNSCR 1546 effectively overrode any ECHR-based constraints on British activities in Iraq.   [UPDATE: In my initial post, I was at pains to keep this as short as possible, and left out too much important nuance (or so I've been persuaded by reader commentary).  I did not mention in my two-sentence paragraph immediately below that the ECHR decision on the "displacement" issue turn primarily on a "clear statement" rule of interpretation the ECHR employed: "In the event of any ambiguity in the terms of a Security Council Resolution, the Court must therefore choose the interpretation which is most in harmony with the requirements of the Convention....it is to be expected that clear and explicit language would be used were the Security Council to intend States to take particular measures which would conflict with their obligations under international human rights law." (para. 102).  Of course, as noted below, there was explicit reference to security internment in the letter from Secretary Powell that was incorporated by reference in UNSCR 1546.  The ECHR dismissed this as inadequate, reasoning that "the terminology of the Resolution appears to leave the choice of the mean to achieve this end [i.e., security and stability] to the Member States within the [MNF-I]," and that in "the absence of a clear provision to the contrary, the presumption must be that the Security Council intended States within the [MNF-I to pursue this end] while complying with their obligations under [IHRL]." (para. 105)   This is generally what I was trying to get at in the original text immediately below, but in retrospect I appreciate that my cursory description did not do justice to the opinion.  The ECHR framed the question in terms of whether the Resolution affirmatively obliged the British to engage in certain activities, or instead merely authorized it to do so.  Concluding that the latter is more accurate, the ECHR rejected the UK’s argument. It is tempting to chalk all of this up to inadequate “preventive lawyering”---i.e., to say that the UK could have avoided this simply by issuing a derogation on the front end, or by adjusting the language used in Secretary Powell’s letter so as to make the use of security internment authority obligatory rather than just permissible.  As to the latter, however, note the following assertion by the ECHR:

[The US-Iraq agreement including Powell’s letter] could not override the binding obligations under the Convention. In this respect, the Court recalls its case-law to the effect that a Contracting State is considered to retain Convention liability in respect of treaty commitments and other agreements between States subsequent to the entry into force of the Convention (see, for example, Al-Saadoon and Mufdhi v. the United Kingdom, no. 61498/08, §§ 126-128, ECHR 2010-...).

If I’m reading this correctly, the ECHR is suggesting the whole inquiry into UNSC authorization is rather besides the point, since “treaty commitments and other agreements between States subsequent to the entry into force” of the ECHR just can’t alter ECHR obligations.  This seems strongly to indicate that the UNSC has no power to trump ECHR obligations.  The bottom line therefore seems to be that, absent a derogation, no ECHR member state may use military detention (whether based on a combatancy model or, as here, a security internment model akin to GCIV). [Additional update: a reader suggests that it would be far more accurate to say that the point is simply that the most the Security Council can do is put a member state in a position where it has to choose between complying with its ECHR obligations and complying with its UN Charter obligations.] [Further update: A reader suggests that the quoted paragraph  merely refutes the fall-back argument that controlling authority may be found not in the UNSCR but rather just the Iraq-US/UK agreement standing alone.  On that view, it would remain open for a sufficiently explicit UNSCR to authorize security internment.] I hope to post later, or tomorrow, about the ECHR’s simultaneous decision in Al-Skeini.