R (on the application of Al-Jedda) v. Secretary of State for Defence

On December 12th, the House of Lords issued its judgment in R (on the application of Al-Jedda) v. Secretary of State for Defence. The appellant is a U.K. and Iraqi national who has been held without charge by British authorities in Iraq since October 2004. He claimed that his detention violated the Human Rights Act 1998 and the English common law. British authorities claimed that he "was suspected of being a member of a terrorist group involved in weapons smuggling and explosive attacks in Iraq . . . [that he was] personally responsible for recruiting terrorists outside Iraq with a view to the commission of atrocities there; for facilitating the travel into Iraq of an identified terrorist explosives expert; for conspiring with that explosives expert to conduct attacks with improvised explosive devices against coalition forces in the areas around Fallujah and Baghdad; and for conspiring with the explosives expert and members of an Islamist terrorist cell in the Gulf to smuggle high tech detonation equipment into Iraq for use in attacks against coalition forces." The appellant denied these claims. This appeal, though, did not pertain to these allegations.

The House of Lords distinguished three questions on appeal. First, was the U.K. government liable for the appellant's allegedly wrongful detention or was the United Nations the responsible party because the impugned acts were attributable to the organization as a result of Security Council resolutions authorizing the Multinational Force in Iraq? Second, are British obligations under the European Convention on Human Rights qualified by those that arise under the U.N. Charter, particularly relevant Security Council resolutions? Third, what law applies to the appellant's detention, English common law or Iraqi law? The principal opinions were given by Lord Bingham of Cornhill and Lord Rodger of Earlsferry. On the first question, the Lords of Appeal (Lord Rodger, dissenting) found that the allegedly wrongful conduct was attributable to the United Kingdom and not the United Nations. The majority distinguished the admissibility decision of the Grand Chamber of the European Court of Human Rights in Behrami v. France, Saramati v. France, Germany and Norway (Application Nos. 71412/01 and 78166/01, May 2, 2007), which attributed the acts of KFOR to the United Nations and not to the individual countries that contributed forces to that mission. On the second question, all five Lords of Appeal found that the United Kingdom's obligations under the European Convention had to be limited by those due under the Charter. In this case, Lord Bingham wrote, the United Kingdom had the authority to detain the appellant, but, even so, it "must ensure that the detainee's rights under Article 5 [of the European Convention] are not infringed to any greater extent than is inherent in such detention." On the third question, the Lords of Appeal agreed that Iraqi tort law governed.

This case is interesting, of course, in its own right, but it has particular resonance given the Supreme Court of the United States's recent cert. grants in Munaf v. Geren (No. 06-1666) and Geren v. Omar (No. 07-394). For the opinion of the D.C. Circuit in Munaf, the petition for certiorari, and the brief in opposition to the petition, see here. For the same for Omar, see here.