Thursday, March 30, 2006

English Court of Appeal holds that the Security Council has displaced the ECHR

Another English case, and what a remarkable decision it is: the English Court of Appeal (Brooke, May and Rix LJJ) decided yesterday that the Security Council has, by adopting SC Res. 1546 and authorising the Multinational Force to intern people for reasons of national security, displaced the guarantees of Article 5 ECHR, which would otherwise have availed anyone so interned by British soldiers: R (Al-Jedda) v. Secretary of State for Defence [2006] EWCA Civ 327.

I already referred to the case and to the problems raised in it in a previous post, on the complaint brought by Saddam Hussein before the European Court of Human Rights. I now return to the issue, as I promised to / threatened to / said I would do.
I feel I should report again the facts and the issues of the case, before turning to the solution chosen by Brooke LJ in his leading judgment (May and Rix LJJ agreed with Brooke LJ’s judgment). I therefore now quote from my earlier post, and apologise for the repetition:

‘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.’ Only the power to order a person’s ‘internment where this is necessary for imperative reasons of security in Iraq’ is relevant to the case of Mr Al-Jedda, who was detained under this power.

The question therefore arises, and was put to the High Court and to the Court of Appeal, whether this power of the United Kingdom enjoyed precedence over any other conflicting treaty arrangements, as provided for in Article 103 of the UN Charter. This article provides as follows:

‘In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.’

It is to be noted that the article speaks only of ‘the obligations of the Members of the United Nations’ (emphasis added) and not also of their powers. This point was one of the cornerstones of Mr Al-Jedda’s arguments.
The High Court rejected this argument on the grounds that the Security Council cannot have intended the scope of its authorisation to vary depending on whether and to what extent the various states forming the Multinational Force were bound by human rights treaties.
Without rejecting this approach, Brooke LJ in the Court of Appeal took a different route: he referred to the commentary on Article 39 of the UN Charter by Professor Frowein and Dr Krisch in Charter of the United Nations – A Commentary, 2nd edition, edited by Prof (and now Judge) Bruno Simma and others, at p. 729 (Art. 39 MN 33), where it is explained that measures taken by the Security Council under Article 42 of the UN Charter were originally intended to be carried out by the UN itself, using troops provided for that purpose by the member states. Of course, it never came to this, and the Security Council has instead authorised member states to carry out military operations themselves, within a mandate granted by the Council. Therefore, so Professor Frowein and Dr Krisch argue, the effect of the authorisations granted must be assimilated to action taken by the Council itself, and Article 103 must therefore apply not only to ‘obligations’, but also to such authorisations.
Brooke LJ (at paras. 69, 74) directly applied this opinion to the case before him, implying that the alternative to the authorisation expressed in SC Res 1546 would have been for the Council to carry out the military operations through troops put at its own disposal.

I would respectfully agree that Article 103 of the Charter must be considered as applying also to authorisations by the Security Council, but the reasoning offered by Professor Frowein and Dr Krisch does not seem to be properly applied to the case at hand: Article 42 of the Charter speaks of ‘such action by air, sea or land forces as may be necessary to maintain or restore international peace and security,’ but in so doing it clearly refers not to just any action by military units, but specifically to enforcement action ‘against a State’: see the explanations of Prof Frowein and Dr Krisch at p. 754 (Art. 42 MN 12) of the Simma Commentary. Indeed, the Appeals Chamber of the ICTY clearly stated that ‘these [measures under Article 42] are measures of a military nature, implying the use of armed force’ (The Prosecutor v. Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, at para. 33; it is clear that ‘armed force’ in this statement means force used against a state, not against a person).
The authorisation granted by SC Res 1546, relevant to this case, would therefore appear to be based on Article 41 of the Charter (Brooke LJ said at para. 59 that Article 41 was ‘not material to this appeal’).
This difference would seem to be without any consequences, as it is at the very least arguable that Article 103 of the Charter applies also to authorisations of the Security Council under Article 41; in particular, the reasoning of the High Court appears to be rather attractive: the Council’s authorisation was to the Multinational Force, not to the states making up the Force individually. There is therefore much force in the argument that the authority to be conferred was intended to be the same for all participants of the Force. Besides, any other interpretation would mean that there would have mean one particular extent of powers in one area of Iraq, and a very different set of powers in another area, controlled by a different state. This does not appear likely to have been the intention of the Security Council.
This interpretation would also take care of the argument that the resolutions of the Council must be interpreted so as not to interfere with recognised human rights. This is probably true, as it may be deduced from the – admittedly somewhat unspecific – references to human rights in the Charter (in the preamble and in Articles 1, 55 and 56), but it is only a rule of interpretation and must in this case yield to the other considerations.

The Court of Appeal did not consider whether SC Res 1546 infringed jus cogens. Any such conclusion would probably have meant that the resolution was ultra vires, and that not only international jus cogens, but also Article 5 ECHR, would have remained unaffected, for the simple reason that the resolution would have been void (see Alexander Orakhelashvili, ‘The Impact of Peremptory Norms on the Interpretation and Application of United Nations Security Council Resolutions’, European Journal of International Law 16 (2005), pp. 59, 82-84).
It may well be that the prohibition of arbitrary detention has achieved the status of jus cogens (see The American Law Institute (ed.), Restatement of the Law, Third, The Foreign Relations Law of the United States, vol. 2, 1987, p. 175), but SC Res 1546 has not gone so far as to allow this. The detention of Mr Al-Jedda was regularly reviewed, it was based on the conditions stated in the resolution and in the letters attached to it, including the adherence to the law of armed conflict.

I would therefore think that the Court of Appeal was right to uphold the power of the Security Council to qualify the protection afforded by Article 5 ECHR.