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The European Court of Human Rights’ Al-Jedda judgment: the oversight of international humanitarian law

Published online by Cambridge University Press:  19 April 2012

Jelena Pejic
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Abstract

The European Court of Human Rights' judgment in the Al-Jedda case dealt with the lawfulness of UK detention practice in Iraq under the European Convention on Human Rights. The Court's opinion could, however, be read as having broader implications for the ability of states parties to that treaty to conduct detention operations in situations of armed conflict. This article analyzes what the Court did – and did not say – about the application of international humanitarian law.

Type
Comments and Opinions
Information
International Review of the Red Cross , Volume 93 , Issue 883: Engaging armed groups , September 2011 , pp. 837 - 851
Copyright
Copyright © International Committee of the Red Cross 2012

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References

1 Both cases were decided by the Grand Chamber of the ECtHR and were almost unanimous.

2 ECtHR, Al-Skeini v. The United Kingdom, App. No. 55721/07, 7 July 2011.

3 ECtHR, Al-Jedda v. The United Kingdom, App. No. 27021/08, 7 July 2011.

4 Al-Jedda, above note 3, para. 11.

5 Ibid., paras. 12 and 13.

6 Ibid., para. 15.

7 Article 5(1) of the ECHR provides that: ‘1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; (b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.’

8 Al-Jedda, above note 3, para. 60.

9 Ibid., para. 84.

10 UNSC Resolution, UN Doc. S/RES/1546 (2004), 8 June 2004.

11 Al-Jedda, above note 3, para. 101.

12 Ibid., para. 102.

13 ‘However, such an agreement could not override the binding obligations under the Convention. In this respect, the Court recalls its case-law to the effect that a Contracting State is considered to retain Convention liability in respect of treaty commitments and other agreements between States subsequent to the entry into force of the Convention’. … Al-Jedda Judgment, above note 3, para. 108.

14 See GC IV, Arts 27, 41–43, and 78, which were laid out in paragraphs 42–44 of the judgment, entitled: ‘Relevant provisions of international humanitarian law’.

15 Only references to other paragraphs in the Judgment have been omitted.

16 Al-Jedda, above note 3, para. 107, emphasis added.

17 It should also be noted that the Al-Jedda judgment only determined that the relevant article of the ECHR was not displaced by UN Security Council Resolution 1546 because the language of the latter was not sufficiently clear and precise. The Court did not pronounce on whether the resolution could have prevailed over the ECHR if those requirements had been met, which is by no means a given. As already mentioned, the Court also did not explicitly opine on whether Article 103 of the UN Charter is triggered only when a state's conflicting obligations under another international instrument are in conflict with its obligations under the Charter (i.e. a Chapter VII resolution), or whether authorizations are also covered by the operation of Article 103. See Milanovic, Marko, ‘Al-Skeini and Al-Jedda in Strasbourg’, in European Journal of International Law, Vol. 23, 2012, available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1917395 (last visited 23 January 2012)CrossRefGoogle Scholar.

18 Al-Jedda, above note 3, para. 107. Even though Al-Jedda was in fact interned when the armed conflict in Iraq was non-international in character, the legal regime applied to his detention by the UK as a result of UN Security Council Resolution 1546 was that prescribed by the Fourth Geneva Convention, an issue that the Court did not contest in para. 107.

19 Ibid.

20 Ibid.

21 Ibid.

22 GC III, Art. 4.

23 Additional Protocol I (AP I), Art. 43 (2).

24 GC III, Art. 21.

25 Judicial review under the domestic law of the detaining state could be sought to obtain the release of a POW who is detained despite the end of active hostilities. As mentioned further below, that is a grave breach of IHL.

26 GC III, Art. 5.

27 See commentary to Article 45 (1) of AP I, on the nature of a ‘competent tribunal’ under Article 5 of GC III, in Yves Sandoz, Christophe Swinarski, and Bruno Zimmermann (eds), Commentary on the Additional Protocols of June 8, 1977 to the Geneva Conventions of 12 August, 1949, ICRC/Martinus Nijhoff Publishers, Geneva, 1987, para. 1745.

28 GC III, Art. 118.

29 Ibid., Art. 119.

30 Ibid., Arts. 109(1) and 110.

31 Ibid., Art. 21.

32 AP I, Art. 85(4)(b).

33 GC IV, Arts. 27, 41, and 78.

34 The only exception is the relatively rare occurrence of a levée en masse, provided for in GC III, Art. 4(6).

35 AP I, Art. 51(1). Given the consequences of direct civilian participation in hostilities, it is clearly crucial to avoid broad interpretations. The ICRC's view on this issue is outlined in Melzer, Nils, ICRC Interpretive Guidance on the Notion of Direct Participation in Hostilities under IHL, ICRC, Geneva, 2009, available at: http://www.icrc.org/eng/assets/files/other/icrc-002-0990.pdf.Google Scholar

36 AP I, Art. 51(2).

37 Ibid., Art. 51(3) and AP II, Art. 13(3).

38 Examples of activities that are not direct participation in hostilities but would constitute a serious security threat are the financing of combat operations, general recruitment for combat, etc.

39 GC IV, Art. 42(1).

40 Ibid., Art. 78(1).

41 Pictet, Jean (ed.), Geneva Convention IV, Commentary, ICRC, Geneva, 1958, p. 367Google Scholar.

42 GC IV, Art. 43 (1).

43 Ibid., Art. 78 (2).

44 Ibid., Arts. 41 and 78.

45 J. Pictet, above note 41, pp. 261, 368–369.

46 See Charles Garraway, ‘ “Combatants”: substance or semantics?’, in Michael Schmitt and Jelena Pejic (eds), International Law and Armed Conflict: Exploring the Faultlines, Martinus Nijhoff Publishers, Leiden, 2007, p. 330.

47 See, for example, Canada, National Defence, Joint Doctrine Manual, Law of Armed Conflict at the Operational and Tactical Levels, B-GJ-005-104/FP-021, Office of the Judge Advocate General, 13 August 2001, p. 16–4, para. 1609(3)(g), available at: http://www.cda.forces.gc.ca/cfmlc-cdmfc/documents/LOAC-DDCA_2004-eng.pdf (last visited 25 January 2012).

48 See, for example, the list of War Crimes under Article 8 of the Statute of the International Criminal Court.

49 GC IV, Art. 132; AP I, Art. 75(3).

50 GC IV, Arts. 46 and 133(1).

51 AP I, Art. 85(4)(b).

52 Nowak, Manfred, U.N. Covenant on Civil and Political Rights, 2nd edn, Engel, Kehl am Rhein, 2005Google Scholar, Commentary on Article 9, para. 27.

53 Al-Jedda, above note 3, para. 107.

54 GC IV, Art.132; AP I, Art. 75(3).

55 Because internment is not akin to trial-related detention, internment conditions, as well as other aspects of internment provided for in the Fourth Geneva Convention, are not modelled on the rules governing detention for criminal purposes.

56 GC IV, Arts. 41 and 78.

57 Al-Jedda, above note 3, para. 107.

58 ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, ICJ Reports 1996, para. 25.

59 In its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the Court made a broader statement about the interplay of human rights law and IHL, reiterating that IHL is the lex specialis to the general law of human rights: ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, ICJ 136, para. 106.

60 Al-Jedda, above note 3, para. 99.

61 ECHR, Art. 15.

62 See Report of expert meeting on procedural safeguards for security detention in non-international armed conflict, Chatham House and ICRC, London, 22–23 September 2008, available at: http://www.icrc.org/eng/assets/files/other/security-detention-chatham-icrc-report-091209.pdf (last visited 23 January 2012).