Saddam Hussein unsuccessful before the European Court of Human Rights
On Tuesday, the European Court of Human Rights (ECtHR) ruled inadmissible a complaint brought by Saddam Hussein against all European member States of the coalition in Iraq.In what appears to have been a boldly, but nevertheless also badly, argued complaint (badly, that is, unless the ECtHR has given a very unfair summary of the arguments), Saddam Hussein had argued that he had been unlawfully arrested, would receive an unfair trial, would be executed afterwards, and would be subjected to inhuman and degrading treatment. This last argument was presumably on the basis that the execution of a sentence of death following an unfair trial constituted such inhuman and degrading treatment, as the ECtHR had held in Öcalan v. Turkey (at para. 169).
These complaints on the merits, however, went nowhere, because the respondent States (Albania, Bulgaria, Croatia, the Czech Republic, Denmark, Estonia, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Turkey, Ukraine and the United Kingdom) did not have jurisdiction over the applicant in the sense of Article 1 ECHR. As the Court said, ‘[t]he applicant did not address each respondent State’s role and responsibilities or the division of labour/power between them and the US.’ He therefore failed to show that it was the (European) respondent States, and not the US or Iraq, that were responsible for the arrest, the trial, and its outcome.
In fact, this failure may relate not so much to the issue of jurisdiction in the special sense of Article 1 ECHR, but to the attributability of the relevant acts to any of the respondent States. This question is clearly a prerequisite for any international responsibility, including that under the ECHR, and is either anterior to or implicit in Article 1 ECHR. Either way, the ECtHR clearly has to examine this issue, and clearly could not possibly find that there was any imputability.
Hussein had argued that he was arrested and detained by the coalition States as the occupying powers of Iraq, and he seemed to imply that this responsibility was in the nature of a joint and several liability. This, the Court for its part implied, cannot be reconciled with the fact that there was what the Court called a ‘division of labour/power’ between the various States. This is clearly correct.
But even if any of the acts complained of had been attributable to any of the respondents, such a determination would not have availed the applicant. As was mentioned above, it is not enough that an act is attributable to a State party to the ECHR, but this act must also have been part of that State’s ‘jurisdiction’ in the sense of Article 1 ECHR.
In this sense, the Grand Chamber of the ECtHR had held in Banković and Others v. Belgium and Others that the concept of jurisdiction under Article 1 ECHR would generally follow that under general international law; accordingly, the jurisdiction of States parties to the ECHR was primarily territorial, and it was not sufficient that the States had some limited control over some of the human rights guaranteed in the ECHR (at paras. 59-82).
It is difficult to say whether this holding would have been fatal to the applicant’s claim, if only because it is so difficult to think of any facts which might engage the responsibility of the European coalition States. However, it seems that the only possible reference would have been to those States’ involvement in the coalition itself: none of those States was at any time the occupying power either in the place of the arrest or of the trial, and the only influence they had over events there was through their communication between the allies (and, possibly, with the Iraqi government). Banković made reasonable clear that this would not have been enough.
The applicant had argued that Banković was wrongly decided and should be reconsidered, but in view of the fact that his own assertions were, as described, somewhat elliptical, this seems to have been a bold move.
In any event, because the European States were clearly not in control of the arrest, detention and trial of Saddam Hussein, the Court did not have to decide whether such detention alone would be sufficient to establish their jurisdiction, or whether there had to be some kind of international legal nexus of the kind referred to in Banković. The Court had given such indications in Öcalan (at para. 91) and in Issa and Others v. Turkey (at para. 71), and the English High Court (Rix LJ, Forbes J) and the Court of Appeal (Brooke, Sedley and Richards LJJ) accepted as much in R (Al-Skeini) v. Secretary of State for Defence [2004] EWHC 2911 (Admin) and [2005] EWCA Civ 1609.
But even if the relevant acts had been attributable to the respondent States and the requirement of ‘jurisdiction’ under Article 1 ECHR had been met, the request of the applicant could have met with another difficulty, recently considered by the English High Court (Moses and Richards JJ) in R (Al-Jedda) v. Secretary of State for Defence [2005] EWHC 1809 (Admin) (the case is currently on appeal to the English Court of Appeal, and may go on from there to the House of Lords and, possibly, the ECtHR).
This difficulty would have occurred as a result of general international law asserting its influence on the ECHR. Specifically, it might be argued that the arrest and detention of Saddam Hussein were on the basis of an authorisation by the UN Security Council and that this authority enjoyed precedence over the guarantees of the ECHR by virtue of Article 103 UN Charter.
In its Resolution 1546, the UN Security Council decided ‘that the multinational force shall have all the authority 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 (…)’. One of the ‘letters annexed to this resolution’ was a letter by the then US Secretary of State Colin Powell, in which he stated that:
‘Under the agreed arrangement, the MNF stands ready to continue to undertake a broad range of tasks to contribute to the maintenance of security and to ensure forces protection. These include activities necessary to counter ongoing security threats posed by forces seeking to influence Iraq's political future through violence. This will include (...) internment where this is necessary for imperative reasons of security in Iraq (...).’
Accordingly, the Security Council gave coalition forces the power to ‘undertake a broad range of tasks to contribute to the maintenance of security’ in Iraq.
If the priority of obligations from the UN Charter and from Security Council resolutions over other sources of international obligations (specifically treaties) under Article 103 UN Charter extends also to resolutions granting a power, rather than only to ‘obligations of the members of the United Nations under the (…) Charter’ (Article 103 UN Charter, emphasis added), the consequence at least could be that the Security Council has, by granting this specific power, rendered the ECHR inapplicable. Indeed, the High Court reached just this conclusion in Al-Jedda, in the context of an ‘internment (…) for reasons of security in Iraq’ (see Secretary Powell’s letter quoted above).
However, this could obviously only apply if the power granted by the Security Council came into play, and this seems to be more than doubtful in the case of the arrest, detention and trial of Saddam Hussein.
Firstly, the trial itself is not conducted by any member of the coalition, and therefore falls outside the authorisation of the Council on this ground alone.
Secondly, Hussein is not interned ‘for reasons of security in Iraq.’ He is in custody during his criminal trial, as anyone who has been remanded in custody (i.e. denied bail).
Thirdly, the broader reference in Secretary Powell’s letter to ‘a broad range of tasks to contribute to the maintenance of security’ also seems to be irrelevant to Saddam Hussein’s case. His detention is not for such reasons, but is a feature of criminal procedural law. Besides, the reference to ‘a broad range of tasks’ is clearly too broad to be covered by the authorisation of the Security Council in SC Res. 1546. This is all the more so because the Council’s resolutions must be interpreted to accord, as far as possible, with human rights norms (in the case of rules of jus cogens, the Council simply may not authorise any deviations).
The issue of Article 103 UN Charter and the ECHR may therefore not have presented itself as strongly in the Hussein case as it did in Al-Jedda (I may return to the issue when the Court of Appeal has given its decision). Saddam Hussein’s case could therefore only by a considerable stretch of the imagination have been dismissed on the grounds of the precedence of the UN Charter (even assuming that the ECtHR would have jurisdiction to make such a ruling).
The case was, however, rightly dismissed because of the lack of attributability and (accordingly) jurisdiction. In fact, I completely agree with Julian Ku that this case presented ‘a loser argument, if I ever saw one.’
These complaints on the merits, however, went nowhere, because the respondent States (Albania, Bulgaria, Croatia, the Czech Republic, Denmark, Estonia, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Turkey, Ukraine and the United Kingdom) did not have jurisdiction over the applicant in the sense of Article 1 ECHR. As the Court said, ‘[t]he applicant did not address each respondent State’s role and responsibilities or the division of labour/power between them and the US.’ He therefore failed to show that it was the (European) respondent States, and not the US or Iraq, that were responsible for the arrest, the trial, and its outcome.
In fact, this failure may relate not so much to the issue of jurisdiction in the special sense of Article 1 ECHR, but to the attributability of the relevant acts to any of the respondent States. This question is clearly a prerequisite for any international responsibility, including that under the ECHR, and is either anterior to or implicit in Article 1 ECHR. Either way, the ECtHR clearly has to examine this issue, and clearly could not possibly find that there was any imputability.
Hussein had argued that he was arrested and detained by the coalition States as the occupying powers of Iraq, and he seemed to imply that this responsibility was in the nature of a joint and several liability. This, the Court for its part implied, cannot be reconciled with the fact that there was what the Court called a ‘division of labour/power’ between the various States. This is clearly correct.
But even if any of the acts complained of had been attributable to any of the respondents, such a determination would not have availed the applicant. As was mentioned above, it is not enough that an act is attributable to a State party to the ECHR, but this act must also have been part of that State’s ‘jurisdiction’ in the sense of Article 1 ECHR.
In this sense, the Grand Chamber of the ECtHR had held in Banković and Others v. Belgium and Others that the concept of jurisdiction under Article 1 ECHR would generally follow that under general international law; accordingly, the jurisdiction of States parties to the ECHR was primarily territorial, and it was not sufficient that the States had some limited control over some of the human rights guaranteed in the ECHR (at paras. 59-82).
It is difficult to say whether this holding would have been fatal to the applicant’s claim, if only because it is so difficult to think of any facts which might engage the responsibility of the European coalition States. However, it seems that the only possible reference would have been to those States’ involvement in the coalition itself: none of those States was at any time the occupying power either in the place of the arrest or of the trial, and the only influence they had over events there was through their communication between the allies (and, possibly, with the Iraqi government). Banković made reasonable clear that this would not have been enough.
The applicant had argued that Banković was wrongly decided and should be reconsidered, but in view of the fact that his own assertions were, as described, somewhat elliptical, this seems to have been a bold move.
In any event, because the European States were clearly not in control of the arrest, detention and trial of Saddam Hussein, the Court did not have to decide whether such detention alone would be sufficient to establish their jurisdiction, or whether there had to be some kind of international legal nexus of the kind referred to in Banković. The Court had given such indications in Öcalan (at para. 91) and in Issa and Others v. Turkey (at para. 71), and the English High Court (Rix LJ, Forbes J) and the Court of Appeal (Brooke, Sedley and Richards LJJ) accepted as much in R (Al-Skeini) v. Secretary of State for Defence [2004] EWHC 2911 (Admin) and [2005] EWCA Civ 1609.
But even if the relevant acts had been attributable to the respondent States and the requirement of ‘jurisdiction’ under Article 1 ECHR had been met, the request of the applicant could have met with another difficulty, recently considered by the English High Court (Moses and Richards JJ) in R (Al-Jedda) v. Secretary of State for Defence [2005] EWHC 1809 (Admin) (the case is currently on appeal to the English Court of Appeal, and may go on from there to the House of Lords and, possibly, the ECtHR).
This difficulty would have occurred as a result of general international law asserting its influence on the ECHR. Specifically, it might be argued that the arrest and detention of Saddam Hussein were on the basis of an authorisation by the UN Security Council and that this authority enjoyed precedence over the guarantees of the ECHR by virtue of Article 103 UN Charter.
In its Resolution 1546, the UN Security Council decided ‘that the multinational force shall have all the authority 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 (…)’. One of the ‘letters annexed to this resolution’ was a letter by the then US Secretary of State Colin Powell, in which he stated that:
‘Under the agreed arrangement, the MNF stands ready to continue to undertake a broad range of tasks to contribute to the maintenance of security and to ensure forces protection. These include activities necessary to counter ongoing security threats posed by forces seeking to influence Iraq's political future through violence. This will include (...) internment where this is necessary for imperative reasons of security in Iraq (...).’
Accordingly, the Security Council gave coalition forces the power to ‘undertake a broad range of tasks to contribute to the maintenance of security’ in Iraq.
If the priority of obligations from the UN Charter and from Security Council resolutions over other sources of international obligations (specifically treaties) under Article 103 UN Charter extends also to resolutions granting a power, rather than only to ‘obligations of the members of the United Nations under the (…) Charter’ (Article 103 UN Charter, emphasis added), the consequence at least could be that the Security Council has, by granting this specific power, rendered the ECHR inapplicable. Indeed, the High Court reached just this conclusion in Al-Jedda, in the context of an ‘internment (…) for reasons of security in Iraq’ (see Secretary Powell’s letter quoted above).
However, this could obviously only apply if the power granted by the Security Council came into play, and this seems to be more than doubtful in the case of the arrest, detention and trial of Saddam Hussein.
Firstly, the trial itself is not conducted by any member of the coalition, and therefore falls outside the authorisation of the Council on this ground alone.
Secondly, Hussein is not interned ‘for reasons of security in Iraq.’ He is in custody during his criminal trial, as anyone who has been remanded in custody (i.e. denied bail).
Thirdly, the broader reference in Secretary Powell’s letter to ‘a broad range of tasks to contribute to the maintenance of security’ also seems to be irrelevant to Saddam Hussein’s case. His detention is not for such reasons, but is a feature of criminal procedural law. Besides, the reference to ‘a broad range of tasks’ is clearly too broad to be covered by the authorisation of the Security Council in SC Res. 1546. This is all the more so because the Council’s resolutions must be interpreted to accord, as far as possible, with human rights norms (in the case of rules of jus cogens, the Council simply may not authorise any deviations).
The issue of Article 103 UN Charter and the ECHR may therefore not have presented itself as strongly in the Hussein case as it did in Al-Jedda (I may return to the issue when the Court of Appeal has given its decision). Saddam Hussein’s case could therefore only by a considerable stretch of the imagination have been dismissed on the grounds of the precedence of the UN Charter (even assuming that the ECtHR would have jurisdiction to make such a ruling).
The case was, however, rightly dismissed because of the lack of attributability and (accordingly) jurisdiction. In fact, I completely agree with Julian Ku that this case presented ‘a loser argument, if I ever saw one.’
posted by Tobias Thienel at 14:48
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