The House of Lords in Al-Jedda and Public International Law: Attribution of Conduct to UN-Authorized Forces and the Power of the Security Council to Displace Human Rights

Abstract

This article deals with the recent Al-Jedda House of Lords judgment from the point of view of public international law. Mr Al-Jedda unsuccessfully sought a remedy under the Human Rights Act against his prolonged internment without charge or trial in a British prison in Iraq. The article provides an in depth analysis of the opinions delivered by their Lordships. It advances some criticism of the line of reasoning adopted. Despite reaching the right result, the distinguishing arguments employed by the House to eschew the controversial Behrami case by the European Court of Human Rights seem unconvincing. Secondly, the decision that Article 5 ECHR was 'qualified and/or displaced' was an inherently ambiguous one. It left too many questions open as to the law applicable to Mr Al-Jedda's internment, some of which this article seeks to clarify.

Keywords: Al-Jedda, internment, armed conflict, attribution, responsibility, Behrami, Security Council, human rights, humanitarian law