The Al-Jedda Case Before the House of Lords
Journal of International Peacekeeping, Vol. 13, pp. 181-196, 2009
14 Pages Posted: 19 Feb 2009 Last revised: 16 Jul 2010
Date Written: February 19, 2009
This comment examines the main implications of the Al-Jedda case decided by the House of Lords in December 2007. The case was brought by a dual Iraqi-British citizen detained at a British military detention facility in Iraq for imperative reasons of security. Mr Al-Jedda claimed that his detention violated his right to liberty and security of person recognized by Article 5 of the European Convention on Human Rights. The House of Lords found that the relevant Security Council resolution authorizing British forces to operate in Iraq displaced Article 5 of the Convention to the extent that a conflict arose between the two instruments, and that his detention was consequently lawful.
Al-Jedda raises two important questions of international law. The first of these concerns the relationship between the UN Charter and the ECHR, in particular whether resolutions adopted by the Security Council under Chapter VII of the Charter authorising Member States to use armed force for the purposes of maintaining international peace and security displace the human rights provisions of the Convention to the extent that a conflict arises between the two instruments. The second question concerns whether the conduct of British troops operating in Iraq as part of the Multinational Force (MNF) established by Security Council Resolution 1511 of 16 October 2003 is attributable to the UN, rather than the United Kingdom, and for that reason falls outside the scope of application of the ECHR in accordance with the admissibility decision of the European Court of Human Rights in Behrami and Saramati. This comment suggests that the answer given by the House of Lords to these two questions is not entirely satisfactory.
Keywords: Al-Jedda, ECHR, peacekeeping, Article 103 UN Charter, Security Council resolutions
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