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

by Tobias Thienel

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.

6 Responses

  1. Tobias,

    Wonderful post, and it’s actually on an issue I’m working on right now. Behrami and Al Jedda really compare well — they deal with essentially the same questions, but come up with two totally different answers. The two cases are absolutely fascinating on several levels – from the issue of responsibility of states for acts of international organizations to norm conflict in international law.

    Somewhat surprisingly, the decision of the House of Lords on several pure questions of public international law is far, far superior from that of the ECtHR, itself an international court. Al Jedda is indeed remarkable in that the House sort of went through George Scelle’s dedoublement fonctionnel. I also sat through a day of the oral arguments in Al Jedda, in which two of the most able international legal scholars, Christopher Greenwood and James Crawford, acted as counsel for the government and for the intervenors respectively, and in which you could really see how their Lordships were engaged and totally committed.

    Anyway, the one point on which I disagree with you (and the House) is that Al Jedda is distinguishable from Behrami. Yes, of course the cases are different in some respects, but I don’t think any of these are really relevant. Nor, I suspect, did the majority of the Lords really think that way. They distinguished Behrami because they couldn’t say, for reasons of comity etc., that the European Court got it totally wrong in almost every way in Behrami. Simply, the UK forces in Kosovo are under no more control of the UN than are the UK forces in Iraq. To say that anything done by NATO troops in Kosovo is attributable to the UN, and not to NATO nor to any of its member states is absolutely absurd, equally as absurd as saying that the Abu Ghraib scandal was not attributable to the US, but to the UN.

    Indeed, Behrami is so utterly wrong that it is in my view one of the worst decisions of the European Court in recent memory. To add insult to injury, because it is ‘just’ an admissibility decision, Behrami only states that the decision was rendered by a majority, but it doesn’t say how large, nor are there any separate opinions attached.

    How is it possible then that Behrami was so obviously wrongly decided? If you ask me, it’s because the European Court had structural incentives to invent a novel way of dispensing with the case. Unlike the House of Lords, the European Court is loathe to say that the ECHR was preempted or superceded by the UN Security Council via Art. 103 of the Charter. They never even applied IHL as lex specialis, for example in relation to Chechnya, and they were not about to start saying that anyone, even the Council, can magically wisk away the ECHR. And so, instead of dealing with a conflict of norms, you have the attribution to the UN fisaco.

  2. Marko,

    It must have been brilliant to hear the oral arguments in Al-Jedda, very probably the most startlingly international case in the UK in recent years (immunity cases don’t really count, do they?).

    I’m not at all sure you do disagree with me, or I with you. As I said, I see some force in Lord Rodger’s speech, in which he showed that Behrami and Saramati could not be distinguished from the case before the House. Nor am I entirely satisfied that the majority of the House did distinguish Behrami and Saramati, either successfully or with any close attention to what the ECtHR has said. As I said in the post, I felt Lord Bingham applied Article 5 of the ILC Draft more than he applied, or decided not to apply on distinguished facts, the European precedent.

    (Remember that Lord Bingham’s approach commanded a majority in the House, by virtue of the agreement of Baroness Hale and Lord Carswell. Lord Brown may be said to have truly tried to distinguish the ECtHR case, but as Lord Rodger has shown, his differentiation is open to serious doubt. Baroness Hale also agreed with the central observation of Lord Brown, but I don’t think that detracts from her agreement with Lord Bingham’s disposition and reasoning.)

    I do agree with the majority of the House of Lords on their disposition of the first issue (the one I have discussed today). Of course the detention was not attributable to the UN. The UN certainly did not have ‘effective control’ (in the proper, factual sense of the term) over the MNF. Whether it retained ‘ultimate authority’, whatever that may be, in my view does not matter. Behrami and Saramati was wrong in reading down the test of attribution to arrive at that formula (and that of ‘effective authority and control’, which makes things a bit murky: it pretends to be derived from the ILC test, but isn’t really).

    I thank you for your statement about the ECtHR’s actual reasons for deciding Behrami and Saramati as it did. I quite agree. I have a feeling that the passage towards the end of the decision, where the Court adverts to the importance of the SC being left alone to do its job, is a pointer to the true motivation of the Court. They were scared rigid of interfering with the Chapter VII system, and were certainly not going to do so. That having been decided, they had to find a way of putting an end to the case, preferably, as you say, without really surrendering the Convention to anyone.

  3. I also agree, incidentally, that the House was certainly not going to disapprove Behrami. They could, theoretically, have done that, s. 2 of the Human Rights Act 1998 merely enjoining them to ‘take into account’ Convention case-law. But they never have done anything of the kind, and Lord Bingham in particular has been very clear in discouraging any such course. The passage in Ullah I have linked to says that the House should, in the absence of some special circumstances, always follow the lead of Strasbourg; it should be neither more restrictive nor more generous than the ECtHR. The interpretation of the ECHR is for the int’l court; the application of the law as laid down there is for the House. Indeed, a later case has been decided on the basis that, if an issue has not to date been determined at Strasbourg, the House would rule against the individual in the case, leaving that person to go to Strasbourg. Thus, comity has created a rule of non-justiciability of as yet unstated Convention law. Strange, but obviously full of the highest respect for the int’l court.

  4. Tobias and Marko,

    I thank you first for your timely post on the crucial issues raised by the Behrami and Saramati decision. There is no doubt that the ECtHR confused the question of attribution with that of the power of the Security Council to authorise the deployment of military forces. It is obvious that the Court intended to limit her scrutiny, in order not to “to interfere with the fulfilment of the UN’s key mission in this field including, as argued by certain parties, with the effective conduct of its operations”! (Behrami par. 149).

    It is remarkable that the Court dismissed the case ratione personae while it could have resorted to the jurisdiction test under art. 1 of the European Convention. After all, at that time, Kosovo was beyond the “espace juridique” of the Convention.

    As for the consequences of this questionable decision, it is striking that the Behrami has already been invoked by three other decisions of the ECtHR (Beric v Bosnia, Gajic v. Germany, Kasumaj v. Greece).

    In addition, one may be tempted to use the Behrami case to support the “overall control” test vis à vis the “effective control” test. It goes without saying thast this argument is hardly convincing.

    In any event, the facts of the case remain interesting: it is worth considering the issue of attribution of KFOR conducts (NATO, contributing States?), in order to test not only art. 5 but also art. 25, 28 and 29 of the ILC project on the responsibility of international organisations.

    In this respect, the opinion of the Venice Commission of the Council of Europe provides a good point of departure: “[…] if the KFOR Commander orders different national contingents to establish a certain number of roadblocks at certain locations this measure, in itself, must be attributed to NATO. This is because the individual troop-contributing states do not have a possibility to influence such a decision by the KFOR Commander, except perhaps by expressly prohibiting their soldiers to follow the order of the KFOR commander. […] If, on the other hand, a person who happens to be searched at one of the roadblocks is mistreated by one the soldiers, it is, in principle, more plausible to attribute this act to the state of origin of the misbehaving soldiers because in the situation they acted under the supervision and the responsibility of their national commander”.

  5. Mirko,

    Thank you for your comment, and for your citations to later Behrami-style cases. I was aware of Beric, but not of the others.

    While I very largely agree with you, I’m not at all sure Behrami could have been decided on the question of applicability ratione loci. You say that Kosovo was, at the time, beyond the ‘espace juridique‘ of the Convention. (Now, Serbia is a party, but does that affect Kosovo?) True. It is also true that the Court in Bankovic referred to this concept of the ‘espace juridique‘, but I think too much has been read into that (including in Al-Skeini, cited in the post). In Bankovic, the applicants had relied on Cyprus v. Turkey and that judgment’s language of a ‘regrettable vacuum in human rights protection’. Bankovic merely explained the limits of that precedent: Cyprus v. Turkey had concerned the situation where a population had enjoyed Convention rights as against their State before an invasion by another party to the ECHR (Turkey, obviously enough). That being so, there was a ‘vaccum in human rights protection’ on account of the fact that there had been such protection, under the ECHR, before the invasion. Hence, Turkey should be considered to be bound by the Convention to restore or maintain the previous legal entitlements of the populace. Cyprus v. Turkey therefore did not say that any absence of ECHR rights, anywhere in the world, amounted to a ‘regrettable vacuum’. That is what Bankovic says. It explains that the case cited by the applicants does not support their point, but does not say that anything prevents the application of the Convention in areas where a State party exercises ‘effective control’, but where the ECHR has not previously applied.

    Similarly, Bankovic commented on the applicants’ ‘ordre public‘ argument by saying that the Convention was part of the Europeanordre public‘. That, again, was an explanation of the use of that phrase in Cyprus v. Turkey, where it was invoked in support of the ‘regrettable vacuum’ point.

    There is nothing there, I feel, to exclude once and for all the application of the ‘effective control’ test outside the European context.

    [I will say more on that in my forthcoming article on Al-Skeini in the Journal of International Criminal Justice.]

  6. Three developments of interest.

    The first is Lord Brown’s postscript. This appeared on the HL website and reads:

    “Since writing this judgment I have had the advantage of reading in draft the speech to be delivered by my noble and learned friend Lord Rodger of Earlsferry. I confess to having found it sufficiently persuasive to cause me to doubt the correctness of my own conclusion on the difficult issue of attribution. Given, however, that a majority of your Lordships are for the appellant on this issue and that in any event, having regard to the unanimity of view on issue two, it cannot decide the outcome of this appeal, I prefer to leave over for another day my final conclusion on the point. I just wish to indicate that I may change my mind.”

    Why write such a thing? Members of the HL are, of course, entirely free to change their minds on a point of law in a future case – so it is curious he felt the need to indicate that this would be the case.

    Secondly, Mr Al-Jedda has been released. A review committee determined on Christmas Eve that his detention was no longer imperative for reasons of national security.

    And finally, it turns out that Mr Al-Jedda relinquished his Iraqi nationality when he became a British citizen. Would this have affected the HL’s decision had it been known at the time? I would guess that though the issues could have been decided the same way, their Lordships would have felt more uncomfortable in doing so.

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