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Al-Jedda, R (on the application of) v Secretary of State for Defence
Factual and Procedural Background
This opinion concerns an appeal from a judgment of the Divisional Court which dismissed an application for judicial review by the Appellant challenging his detention by British forces in Iraq and the refusal by the Secretary of State to return him to the United Kingdom. The Appellant, an individual with dual British and Iraqi nationality who had previously been granted asylum in the United Kingdom, was detained in October 2004 during a visit to Iraq. The detention was on the basis of suspicion of involvement with a terrorist group and was justified by the Secretary of State as lawful under United Nations Security Council Resolution 1546 (2004). The Appellant sought release and return to the UK, relying on rights under Article 5(1) of the Human Rights Act 1998 and common law grounds. The Divisional Court had previously heard the case and dismissed the application. The appeal also considered submissions from an intervening party supporting the Appellant.
Legal Issues Presented
- Whether the Appellant's detention by British forces in Iraq was lawful under Article 5(1) of Schedule 1 to the Human Rights Act 1998.
- Whether United Nations Security Council Resolution 1546 (2004) and related resolutions qualified or overrode the Appellant's rights under international human rights law, particularly the European Convention on Human Rights (ECHR), through the operation of Article 103 of the United Nations Charter.
- Whether the Human Rights Act 1998 creates rights enforceable in domestic courts independent of rights enforceable at the European Court of Human Rights.
- Whether English common law applies to the legality of the Appellant's detention or whether Iraqi law governs due to the location and circumstances of detention.
- Whether the Secretary of State acted irrationally in refusing to return the Appellant to the United Kingdom.
Arguments of the Parties
Appellant's Arguments
- The Appellant contended that his detention breached his rights under Article 5(1) of the Human Rights Act 1998 and the ECHR, entitling him to judicial review and release.
- He argued that United Nations Security Council Resolution 1546 (2004) did not override or qualify his human rights under Article 5(1), and that the Human Rights Act 1998 creates domestic rights enforceable regardless of Strasbourg jurisprudence.
- He asserted that English law should govern the legality of his detention given his British nationality and the involvement of British forces, not Iraqi law.
- The Appellant maintained that the Secretary of State was irrational in refusing his voluntary return to the UK despite potential prosecution risks.
Secretary of State's Arguments
- The Secretary of State argued that the detention was lawful under the authority of United Nations Security Council Resolution 1546 (2004), which authorized the multinational force (MNF) to intern persons for imperative reasons of security in Iraq.
- It was submitted that Article 103 of the UN Charter gives precedence to obligations under Security Council resolutions over conflicting obligations under human rights treaties such as the ECHR and ICCPR.
- The Secretary of State maintained that the Human Rights Act 1998 rights are only enforceable to the extent they are effective at Strasbourg, and since the Appellant would fail there, the domestic claim was nugatory.
- It was contended that Iraqi law, as adapted by the Coalition Provisional Authority and the Iraqi interim government, governs the detention, and that English law should not displace Iraqi law in this context.
- The Secretary of State asserted that the decision to refuse return was within his discretion and not irrational.
Intervening Party's Arguments
- Written submissions were received from an intervening party supporting the Appellant’s case, emphasizing human rights protections, though specific arguments are not detailed in the opinion.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R (Al-Skeini) v Secretary of State for Defence [2005] EWCA Civ 1609 | Jurisdiction of UK courts over human rights claims involving British forces abroad | Accepted that the Appellant had benefit of rights under the 1998 Act and ECHR for detention by British forces in Iraq. |
| Kadi v Council of European Union (Case T-315/01, 2005) | Supremacy of UN Security Council resolutions under Article 103 of the UN Charter over EU law and fundamental rights | Supported the Secretary of State’s argument that Security Council resolutions prevail over conflicting human rights obligations. |
| Bosphorus v Ireland (Application No 45036/98, 2005) | Relationship between EU law and human rights obligations | Cited but found not decisive on the Article 103 conflict issue. |
| Loizidou v Turkey (1997) 23 EHRR 513 | Recognition of Security Council resolutions affecting human rights claims | Confirmed the special character of the ECHR but did not address supremacy of Security Council resolutions under Article 103. |
| R (Quark Fishing Ltd) v Foreign Secretary [2005] UKHL 57 | Interpretation and purpose of the Human Rights Act 1998 | Held that domestic rights under the 1998 Act mirror rights enforceable at Strasbourg; no domestic remedy if Strasbourg would deny it. |
| R (Greenfield) v Home Secretary [2005] UKHL 14 | Purpose of the Human Rights Act 1998 in relation to Strasbourg jurisprudence | Confirmed that domestic courts should not grant greater rights than Strasbourg would. |
| Liversidge v Anderson [1942] AC 206 | Historical exercise of internment powers during emergency | Referenced as historical analogy for internment powers exercised under emergency legislation. |
| Roerig v Valiant Trawlers Ltd [2002] EWCA Civ 21 | Application of foreign law in tort claims and threshold for displacing general rule | Applied to confirm that the law of the country where the tort occurred generally applies unless strong case to displace. |
| Harding v Wealands [2004] EWCA Civ 1735 | Private international law principles on applicable law in tort | Supported the principle that the law of the place of the tort applies unless displaced on substantial appropriateness grounds. |
| Kuwait Airways Corporation v Iraqi Airways Co [2003] UKHL 19 | Relevance of UN Charter and Security Council resolutions in English law | Confirmed English law’s recognition of UN Charter and Security Council resolutions in applicable law matters. |
| Republic of Ecuador v Occidental Exploration and Production Co [2005] EWCA Civ 1116 | Act of state doctrine and international law considerations | Illustrated English courts’ approach to international law and foreign sovereign acts. |
| R (Abbasi) v Foreign Secretary [2002] EWCA Civ 1598 | Judicial review of detention outside UK jurisdiction | Distinguished the Appellant’s case from detention in legal black holes such as Guantanamo Bay. |
Court's Reasoning and Analysis
The court began by situating the Appellant’s detention within the legal framework of UN Security Council resolutions, Iraqi law, international humanitarian law, and international human rights law. It acknowledged that the detention was authorized under UNSCR 1546 (2004), which empowered the multinational force (MNF) to take all necessary measures, including internment for imperative reasons of security, to maintain stability in Iraq.
The court analyzed the interplay between Security Council resolutions and human rights obligations, focusing on Article 103 of the UN Charter which establishes the supremacy of Security Council obligations over conflicting international agreements. It concluded that UNSCR 1546 (2004) qualified the Appellant’s rights under Article 5(1) of the ECHR and Article 9 of the ICCPR, effectively allowing the detention without the due process ordinarily required.
It rejected the Appellant’s argument that the Human Rights Act 1998 creates domestic rights independent of Strasbourg jurisprudence, relying on the House of Lords decision in R (Quark Fishing Ltd) v Foreign Secretary, which held that domestic rights mirror those enforceable at Strasbourg. Since the Appellant’s claim would fail at Strasbourg due to the Security Council resolution, it could not succeed domestically.
Regarding the applicable law to the detention, the court applied the Private International Law (Miscellaneous Provisions) Act 1995 and concluded that Iraqi law governs the detention, as the tortious events occurred in Iraq and the MNF’s powers were derived from Iraqi law and Security Council mandates. The court found no strong enough reason to displace Iraqi law with English law despite the Appellant’s British nationality and the involvement of British forces.
The court also upheld the Secretary of State’s discretion in refusing to return the Appellant to the United Kingdom, finding no irrationality in that decision.
Finally, the court emphasized that the detention procedures complied with the mandate and that the Appellant was not entitled to access a court to contest the detention in the manner suggested.
Holding and Implications
The court DISMISSED THE APPEAL.
The holding confirms that the detention of the Appellant by British forces in Iraq pursuant to UNSCR 1546 (2004) is lawful despite the restrictions on due process rights under Article 5(1) of the Human Rights Act 1998, because the Security Council resolution qualifies those rights under Article 103 of the UN Charter. The Human Rights Act 1998 does not create enforceable domestic rights beyond those recognized by the European Court of Human Rights. Iraqi law governs the legality of the detention, and the Secretary of State’s refusal to return the Appellant to the UK was not irrational. This decision does not establish new precedent beyond affirming the supremacy of Security Council resolutions in the context of international peacekeeping operations and the limits of domestic human rights claims in such contexts.
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