Is the U.S. Army in Iraq acting for the UN?

I am very grateful to all the regular contributors here at Opinio Juris for having me, and to Kevin for his kind introduction.

To begin with, I would like to offer some thoughts on the question set out above. At first glance, it seems utterly absurd. But exactly that question was recently considered by the House of Lords (if, obviously, by reference to British troops in Iraq).

The case is R (Al-Jedda) v. Secretary of State for Defence, decided on 12 December 2007. This was a case almost exclusively about international law; indeed, Lord Rodger noted at para. 55 that the House of Lords found itself ‘deep inside the realm of public international law – indeed inside the very chamber of the United Nations Security Council itself.’

The facts are briefly stated: Mr. Al-Jedda, a dual British and Iraqi national, was arrested in Iraq and detained by the British Army ‘for imperative reasons of security.’ He has been held since October 2004. In 2005, he brought an action in the High Court in London to secure his release, based primarily on Article 5 of the European Convention on Human Rights, the right of physical liberty. He would ordinarily have had a compelling case: Article 5 does not allow for detentions simply on the grounds of national security, and there had been no relevant derogation by the UK under Article 15 ECHR. The only problem was that he had been arrested under an authority given by the Security Council in SC Res. 1546 (2004).

[There was, however, no problem as to the territorial applicability of the ECHR: the House of Lords had previously decided that the Convention did apply in British military prisons in Iraq (but not in the whole British-controlled region): R (Al-Skeini) v. Secretary of State for Defence.]

The respondent Secretary of State argued, on the basis of SC Res. 1511 (2003) and 1546 (2004), that the conduct of the Multinational Force (MNF) (including the British contribution) was not in international law attributable to the UK, but to the UN. This argument was based squarely on the decision of the European Court of Human Rights in Behrami and Behrami v. France & Saramati v. France, Germany and Norway (2007).

It is obvious that, if that submission was correct, and the acts of the MNF were attributed to the UN, then that would also be true of the acts of the U.S. contingent.

Also, the ECHR would clearly not have applied to what would have been conduct of the UN. That is what Behrami and Saramati decides. That case concerned the UN Mission in Kosovo (UNMIK) and KFOR, the security presence in Kosovo involving NATO, so the case of the Multinational Force in Iraq was not in pari materiae.

That being so, the majority of the House of Lords was able to distinguish Behrami and Saramati. If I may be blunt, that must be right; just imagine the President’s surprise at being told that he only has ‘operational command’ over the Army in Iraq…

Lord Bingham put it almost as bluntly when he said that ‘[i]t has not … been suggested that the treatment of detainees at Abu Ghraib was attributable to the UN rather than the US’ (para. 23; a discussion here at Opinio Juris seems to prove the point). But he also gave a few more reasons for his ultimate conclusion that ‘the analogy with the situation in Kosovo [and hence with Behrami and Saramati] breaks down at every point’ (para. 24). He held as follows:

The international security and civil presences in Kosovo were established at the express behest of the UN and operated under its auspices, with UNMIK a subsidiary organ of the UN. The multinational force in Iraq was not established at the behest of the UN, was not mandated to operate under UN auspices and was not a subsidiary organ of the UN. There was no delegation of UN power in Iraq. It is quite true that duties to report were imposed in Iraq as in Kosovo. But the UN’s proper concern for the protection of human rights and observance of humanitarian law called for no less, and it is one thing to receive reports, another to exercise effective command and control. It does not seem to me significant that in each case the UN reserved power to revoke its authority, since it could clearly do so whether or not it reserved power to do so.

Baroness Hale agreed, as did Lord Carswell (paras. 124, 131). Lord Brown found the matter more difficult. He found the essential difference between Kosovo and Iraq in the fact that the SC Res. 1483 (2004) had assigned the UN an essentially humanitarian role in Iraq, whereas the security aspect (MNF) would not be under UN auspices, SC Res. 1511 and 1546 merely recognizing the occupying forces ‘as an existing security presence’ (paras. 145-148). The House thus decided that Mr. Al-Jedda was being held by the UK, not by the UN.

Lord Rodger, who gave the second speech in Al-Jedda, dissented on this point: he was unable to distinguish Mr. Al-Jedda’s case from Behrami and Saramati. He has a point in saying that the actual differences between the (legal) situation in Iraq and that in Kosovo, as considered in Behrami and Saramati, are far from telling (paras. 93-111). For instance, the requirement of regular reports to the Council in SC Res. 1546 could be said to give an even greater role to the Council than the resolution relating to KFOR and UNMIK had done (paras. 96-97).

I suspect the disagreement between the members of the House on this point may be explained as a difference between the ‘effective control’ test of Article 5 of the ILC Draft Articles on the Responsibility of International Organizations (UN Doc. A/59/10, p. 109), and the ‘overall authority and control’ test that Behrami and Saramati constructed from that (see paras. 133, 134, and 140 of that case), the former seemingly describing a more factual concept than the latter (UN Doc. A/59/10, p. 114 in fine). I find it quite remarkable, in that respect, that Lord Bingham – not usually one to disregard guidance given by the European Court (see R (Ullah) v. Special Adjudicator (2004), para. 20) – seemed to be concerned not so much with distinguishing Behrami and Saramati, and more with applying the ‘effective control’ test emanating from the ILC (see paras. 22-24 of Lord Bingham’s speech).

That may be quite simply because Behrami and Saramati was wrongly decided, or at least wrongly reasoned, in that it regarded the supervision of KFOR’s and UNMIK’s powers by the Council as amounting to control over and responsibility for the exercise of these powers. That is not only a strange reading of ‘effective control’, but also one that carries strange consequences for the work of the Council: if it does not want to take legal responsibility for similar operations in the future, is it to grant powers without providing for any form of review? Surely some form of supervision must be established with any authorization, whether the authorized conduct is to be that of the UN or of a state?

However that may be, I am confident that the ultimate decision of the House of Lords had the virtue of avoiding a startling unreality. Mr. Al-Jedda is not being held by the UN, and neither the British nor the U.S. Army are acting on behalf of the UN. It will be interesting to see if (and how) the European Court will be able to bring itself to agree, once Mr. Al-Jedda takes his case to Strasbourg.

I will have more to say on the case later. Suffice it to say at this point that Mr. Al-Jedda did not win.