Hilal Abdul Razzaq Ali Al Jedda v The Secretary of State for Defence

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLady Justice Arden,Lord Justice Elias
Judgment Date08 Jul 2010
Neutral Citation[2010] EWCA Civ 758
Docket NumberCase No: A2/2009/1844

[2010] EWCA Civ 758

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

(QUEEN'S BENCH DIVISION)

Underhill J

Before: Lady Justice Arden

Sir John Dyson (JSC)

and

Lord Justice Elias

Case No: A2/2009/1844

Between
Hilal Abdul Razzaq Ali Al Jedda
Appellant
and
The Secretary of State for Defence
Respondent

Mr Richard Hermer QC, Mr Tom Hickman & Mr Alex Gask (instructed by Public Interest Lawyers) for the Appellant

Mr Jonathan Swift & Mr Ben Olbourne (instructed by Treasury Solicitor) for the Respondent

Hearing dates: 11–12 March 2010

Lady Justice Arden

Lady Justice Arden:

1

In this action, Mr Al Jedda, who has both Iraqi and British nationality, seeks damages for unlawful imprisonment by reason of his detention by British forces in a military detention centre in Iraq. On this appeal we have to determine whether this action was properly dismissed by Underhill J on 5 March 2009 following the trial. The period for which damages is claimed constitutes part only of the period for which Mr Al Jedda was detained, namely that following the adoption of the new Constitution of Iraq on 20 May 2006 to 30 December 2007, the date of his release.

2

The claim was raised by amendment. Mr Al Jedda's original claim was for declaratory relief or habeas corpus. In earlier proceedings, Mr Al Jedda sought declaratory relief and damages under the Human Rights Act 1998 (“ HRA”) but the House of Lords held that no such claim lay because the United Kingdom's obligations had been displaced by its obligations under the UN Charter ( [2008] 1 AC 332). The earlier proceedings leading to the decision of the House of Lords are referred to in this judgment as Al Jedda 1. This court in Al Jedda 1 held that, under section 11 of the Private International Law (Miscellaneous Provisions) Act 1995 (“PILA”), the law governing any claim for false imprisonment was that of Iraq. The House of Lords agreed with that holding.

3

In legal terms, this is an unusual case. Mr Al Jedda was detained by British forces in Basra on 10 October 2004 on security grounds. He was suspected of being a member of a terrorist group said to be involved in weapons smuggling and explosive attacks in Iraq. He remained in detention until 30 December 2007. He was at no time charged with any offence. It has been held that he is unable to bring any claim to test the lawfulness of his detention under the HRA ( Al Jedda 1), although, following the dismissal of that claim by the House of Lords, Mr Al Jedda has made an application to the European Court of Human Rights (“the Strasbourg court”). The Grand Chamber of the Strasbourg court had a hearing in his case on 9 June 2010, and judgment from that court is pending. It has also been held that Mr Al Jedda cannot bring any claim in tort under the common law. Notwithstanding that Mr Al Jedda's detention was by British forces, the lawfulness of his detention can only be determined if, at all, in these proceedings, that is, under the law of Iraq, where the detention occurred.

Factual and legal background

4

The summary which follows draws together material to be found in the Amended Particulars of Claim, paragraphs 7 to 29 of the judge's judgment and a background note prepared by Mr Richard Hermer QC, Mr Tom Hickman and Mr Alex Gask, who appear on this appeal for Mr Al Jedda.

5

The basis of the legal regime in Iraq, relevant to the internment of those deemed to be a security risk by foreign forces, went through a number of changes from the date of the commencement of the occupation until Mr Al Jedda's release.

6

The invasion of Iraq commenced on 20 March 2003 and the occupation on 1 May 2003. During this time the United Kingdom forces were obliged to conduct themselves in accordance with international humanitarian law. Mr Hermer accepts that, as well as responsibilities, this gave them certain limited powers, including (under the Fourth Geneva Convention of 1949 (“Geneva 4”) and Hague Regulations 1907) the power to intern civilians where necessary for imperative reasons of security.

7

The occupying powers, principally the United States of America and the United Kingdom, formed the Coalition Provisional Authority (“CPA”) which commenced promulgating laws. In May 2003, the CPA promulgated CPA Regulation 1 which provided that they would temporarily exercise the powers of government and that they were vested with executive, legislative and judicial authority necessary to achieve their objectives. On 10 June 2003, the CPA promulgated CPA 3 which set out the basis of security-related detentions. This set out the process for the internment of individuals by CPA forces, which is consistent with Geneva 4.

8

On 8 March 2004 the CPA promulgated the Transitional Administrative Law (“TAL”), or Interim Constitution, setting out a legal regime for the anticipated return to sovereignty. By Article 26C of the TAL, CPA laws were expressly deemed to remain in effect when full sovereignty was restored:

“The laws, regulations, orders, and directives issued by the Coalition Provisional Authority pursuant to its authority under international law shall remain in force until rescinded or amended by legislation duly enacted and having the force of law”

9

At this stage Iraq was still under an occupation and the internment of civilians was governed by international humanitarian law, and the laws promulgated by the CPA. The occupation ended on 28 June 2004. After that date, the United Kingdom forces were present in Iraq with the consent of the Iraqi government. In anticipation of the ending of the occupation, the Security Council of the United Nations (“the UN”) acting under Chapter VII of the UN Charter, passed resolution 1546 (“UNSCR 1546”). The terms of the resolution welcomed the resumption of full sovereignty by the new Interim Government of Iraq and included (by way of annexed letters) the authorisation of the Multinational Force (“MNF”), which included the United Kingdom, to intern civilians where deemed “necessary for imperative reasons of security”. A letter from the US Secretary of State Colin Powell annexed to UNSCR 1546 stated:

“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 force 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 combat operations against members of these groups, internment where this is necessary for imperative reasons of security, and the continued search for and securing of weapons that threaten Iraq's security. A further objective will be to train and equip Iraqi security forces that will increasingly take responsibility for maintaining Iraq's security. The MNF also stands ready as needed to participate in the provision of humanitarian assistance, civil affairs support, and relief and reconstruction assistance requested by the Iraqi Interim Government and in line with previous Security Council resolutions.” (emphasis added)

10

The most material change in the legal framework, for the purposes of this claim, was the entry into force of the new Iraqi Constitution on 19 May 2006. The relevant provisions of the Constitution of Iraq are set out in the Appendix to this judgment, including the rights on which Mr Al Jedda relies. Importantly the Constitution includes the following provisions:

(a) the Constitution stands as the supreme law of Iraq (Article 13(1));

(b) any law which contradicts the Constitution is deemed to be void (Article 13(2));

(c) internment without trial is prohibited (Articles 15, 19(12) and 37(1)(B));

(d) any limitation on a constitutional right may not violate “the essence” of the right (Article 46).

11

By Article 143 the TAL was expressly annulled. The special regime established by Article 26(C) TAL, which ensured the continued validity of laws, regulations, orders and directives, was not, at least not expressly, carried over into the Constitution.

12

The authority of the MNF under UNSCR 1546 was extended by UNSCR 1637 of 8 November 2005 and UNSCR 1723 of 28 November 2006 until 31 December 2006 and 31 December 2007, respectively. These resolutions also annexed an exchange of letters between the Prime Minister of Iraq and the US Secretary of State, Condeleeza Rice, referring back to the original exchange of letters annexed to UNSCR 1546. That exchange contains the only explicit reference to internment. The House of Lords in Al Jedda 1 held that UNSCR 1546 not only authorised but also obliged the MNF to exercise the powers of detention where it was necessary to do so for imperative reasons of security. As the later resolutions of the Security Council extend UNSCR 1546, I need not refer to them separately in this judgment.

13

As to Mr Al Jedda's detention, the position was as follows. In the run up to the return of sovereign powers on 30 June 2004, the CPA revised and reissued CPA 3. Expressed to be pursuant to its UN mandate and consistently with Geneva 4, this provided a more detailed procedure for the authorisation of the detention of security detainees. This was the legal position that appertained at the point at which Mr Al Jedda was arrested in October 2004, namely that his internment was lawful as a matter of Iraqi law by virtue of CPA 3 which was itself lawful by its incorporation into domestic law through the gateway of Article 26 of the TAL. For the purposes of this claim Mr Al Jedda does not dispute the legality of the power to detain in Iraqi law whilst the TAL was...

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