R (Al-Jedda) v Secretary of State for Defence
| Jurisdiction | England & Wales |
| Judge | Lord Justice May,Lord Justice Rix |
| Judgment Date | 29 March 2006 |
| Neutral Citation | [2006] EWCA Civ 327 |
| Docket Number | Case No: C1/2005/2251 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 March 2006 |
[2006] EWCA Civ 327
Lord Justice Brooke Vice-President, Court of Appeal (Civil Division)
Lord Justice May and
Lord Justice Rix
Case No: C1/2005/2251
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
DIVISIONAL COURT
Moses and Richards JJ
Royal Courts of Justice
Strand, London, WC2A 2LL
Keir Starmer QC, Richard Hermer, Christine Chinkin and Felicity Williams (instructed by Public Interest Lawyers) for the Appellant
Christopher Greenwood QC, Philip Sales and Jonathan Swift (instructed by theTreasury Solicitor) for the Respondent
JUSTICE intervened with a written submission
(This Summary forms no part of the Judgment)
This is an appeal by Mr Al-Jedda from an order made by the Divisional Court (Moses and Richards JJ) dismissing his application for judicial review of his detention by British forces in Iraq. Mr Al-Jedda has dual British and Iraqi nationality, He was detained in October 2004 while on a visit to Iraq. He brought these proceedings to challenge the lawfulness of his continued detention by British forces in Iraq and the refusal of the Secretary of State to return him to the United Kingdom. The Divisional Court decided that he was not entitled to the protection of Article 5(1) of Schedule 1 to the Human Rights Act 1998 (' HRA') because his rights under Article 5 were qualified by United Nations Security Council Resolution ('UNSCR') 1546. His appeal was based on human rights law and on English common law grounds.
By the present judgment, the Court of Appeal has unanimously dismissed Mr Al-Jedda's appeal. Lord Justice May and Lord Justice Rix agreed with Lord Justice Brooke and did not deliver judgments of their own.
Lord Justice Brooke's judgment is in nine parts.
Parts 1 and 2 (paras 1–12) set out the main factual background to the appeal, including the circumstances in which Mr Al-Jedda was detained.
Part 3 (paras. 13–35) starts the analysis of the human rights aspect of the claim. The argument revolves around the question whether (and if so to what extent) UNSCR 1546 qualifies Mr Al-Jedda's rights under international human rights treaties, through the operation of Article 103 of the Charter of the United Nations ('the UN Charter') . This part considers the background to the involvement of the UN in Iraq from May 2003 onwards, traces the origins of UNSCR 1546 (and its predecessor UNSCR 1511), and states the provisions of Iraqi law promulgated by the Coalition Provisional Authority ('CPA') . It also refers to further UNSCRs passed since the Divisional Court's judgment. The Court concludes that as a matter of Iraqi law the Multi-National Force ('MNF') were lawfully entitled to conduct themselves pursuant to the provisions of UNSCR 1511 and subsequent Security Council ('SC') Resolutions (para 32).
Part 4 (paras 36–47) considers the relevant provisions of international humanitarian law. It refers to Part III of the Hague Regulations, in particular Articles 42 and 43, and the Fourth Geneva Convention ('Geneva IV') . As Mr Al-Jedda is a British national he could not be a protected person for the purposes of Geneva IV (para 40) . This part considers the powers of occupying forces under Geneva IV and the associated protections provided to internees. The Court concludes that Article 43 of the Hague Regulations empowers an occupying power to intern anyone it considers to be an immediate threat to security within the occupied territory, whatever their nationality (para 46) . This embodies a rule of customary international law.
Part 5 (paras 48–54) describes the development of international human rights law, from Articles 55 and 56 of the UN Charter as an agenda for future action, via the 1948 Universal Declaration of Human Rights to the European Convention on Human Rights ('ECHR') in 1950 and the International Covenant for Civil and Political Rights in 1976. ECHR Article 5 is relied upon by Mr Al-Jedda.
Part 6 (paras 55–87) contains the Court's central analysis in relation to the overriding effect of a Security Council Resolution, as contended for by the Secretary of State. It identifies the powers of the SC as deriving from Chapter V of the UN Charter. The relevant SC Resolutions in Iraq were made under Chapter VII, in particular Article 42 (para 59) . Under Article 103 of the UN Charter obligations upon Member States created by the Charter prevail over their obligations under any other international agreement (para 62) . The Secretary of State contended that the effect of this Article was that the state's obligations under UNSCR 1546 prevailed over obligations under the ECHR. Mr Al-Jedda contended that Article 103 had no application because (1) UNSCR 1546 placed no obligation on the UK; and (2) Article 103 did not apply when two obligations created by the Charter (i.e. UNSCR 1546 and the human rights provisions in the Charter) were in conflict. The Court refers (paras 69–71) to academic literature supporting the proposition that under Article 103 all obligations under the UN Charter (including those created by a SC Resolution in the form of UNSCR 1546) prevailed over any other international obligations. The Court concludes that there was nothing in the Charter creating a parallel obligation to give effect to Mr Al-Jedda's human rights (paras 77–79), and therefore the Secretary of State was correct when he argued that UNSCR 1546 qualified obligations under human rights conventions in so far as it was in conflict with them (para 80–81) . There was no doubt that UNSCR 1546 authorised the internment of persons for imperative reasons of security, irrespective of their nationality (para 86).
Part 7 (paras 88–99) considers Mr Al-Jedda's argument to the effect that whatever the outcome of any application to Strasbourg, the HRA created free-standing rights which could not be affected by developments at international level. The Court analyses the decision of the House of Lords in R (Quark Fishing Ltd) v Foreign Secretary [2005] UKHL 57, which was delivered after the decision of the Divisional Court (paras 89–94) . The Court concludes that if, for any reason, one or more of the Articles under the ECHR did not have effect for the time being in relation to the UK, those Articles could not create Convention rights that could be relied on under the machinery of the HRA. Mr Al-Jedda's claims would fail in Strasbourg, and it would defeat the purpose of the HRA if he could get a better remedy at home. The Court refers to the case of The Queen (on the application of Al-Skeini) v Secretary of State for Defence [2005] EWCA Civ 1609, as supporting that conclusion. The Secretary of State reserved the right to argue in the House of Lords that that case was wrongly decided, in so far as it held that a claimant like Mr Al-Jedda, who was detained by British forces in Iraq, could have a remedy under the HRA.
Part 8 (paras 100–110) considers Mr Al-Jedda's arguments on common law grounds. His contention that the detention was unlawful under English law depended on the premise that English law should be applied to his case. The Court considers the choice of law provisions in sections 11–12 of the Private International Law (Miscellaneous Provisions) Act 1995. In order for English law to be applied it must be 'substantially' more appropriate than Iraqi law. The Court concludes that the considerations favouring the application of English law were not sufficient to displace the normal rule (para 106–107) . The Court also supported the Divisional Court's decision that the Secretary of State was not acting irrationally by declining to order the return of Mr Al-Jedda, and explicitly approved the Divisional Court's reasoning on that issue (para 109).
Part 9 (paras 111–112) contains an addendum to the judgment which considers emergency legislation enacted in the Second World War concerning powers of internment similar to those at issue in this case.
INDEX
Part Paragraph
Lord Justice Brooke's judgment ….. ….. ….. ….. ….. ….. ….. 1
Introduction ….. ….. ….. …. ….. ….. ….. ….. ….. 1
Factual background ….. ….. ….. ….. ….. ….. ….. ….. 3
The human rights claim: the Security Council Resolutions
and Iraqi law ….. ….. ….. ….. ….. ….. ….. ….. ….. 13
The human rights claim: international humanitarian law ….. ….. 36
The human rights claim: international human rights law ….. ….. 48
The human rights claim: the overriding effect of a
Security Council resolution ….. ….. ….. ….. ….. ….. ….. 55
The human rights claim: the assertion that the Human
Rights Act 1998 has created rights even if they are not
enforceable at Strasbourg …. ….. ….. ….. ….. ….. ….. 88
Mr Al-Jedda's claim on common law grounds ….. ….. ….. ….. 100
Addendum ….. ….. ….. ….. ….. ….. ….. ….. ….. ….. 111
Lord Justice May's judgment …. ….. ….. ….. ….. ….. ….. ….. 113
Lord Justice Rix's judgment …. ….. ….. ….. ….. ….. ….. ….. 114
Lord Justice BrookeLord Justice Brooke
Introduction
This is an appeal from a judgment of the Divisional Court (Moses and Richards JJ) whereby it dismissed an application by Mr Al-Jedda for judicial review in relation to his detention by British forces in Iraq. He is an Iraqi who made a successful claim for asylum in the United Kingdom in the 1990s and now holds dual British and Iraqi nationality. He was detained in October 2004 on a visit to Iraq. In these proceedings he challenges the lawfulness of his continued detention by British forces in Iraq and the refusal by the Secretary of State to return him...
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