United Kingdom of Great Britain and Northern Ireland
Practice Relating to Rule 149. Responsibility for Violations of International Humanitarian Law
The UK Military Manual (1958) reproduces Article 3 of the 1907 Hague Convention (IV).
The UK LOAC Manual (2004) states: “A violation of the law of armed conflict by the armed forces of a state involves the international responsibility of that state.”
In the Al-Jedda case in 2007, the UK House of Lords were called upon to decide the appeal of Mr Al-Jedda, a national both of the United Kingdom and Iraq, against his detention by UK forces in Iraq.
In judgments in 2005 and 2006 respectively, the England and Wales High Court of Justice (R. (on the application of Al-Jedda) v. Secretary of State for Defence,  EWHC 1809 (Admin), Judgment of 12 August 2005) and the England and Wales Court of Appeal (R. (on the application of Al-Jedda) v. Secretary of State for Defence,  EWCA Civ 327, Judgment of 29 March 2006) had dismissed the claims brought by Mr Al-Jedda.
The issues before the House of Lords were, first:
“whether, by reason of the provisions of UNSCR [UN Security Council Resolution] 1511 (2003) and/or UNSCR 1546 (2004), and/or UNSCR 1637 (2005) and/or UNSCR 1723 (2006) and/or (so far as it may be relevant) UNSCR 1483 (2003), the detention of the appellant is attributable to the United Nations and thus outside the scope of the [1950 European Convention on Human Rights]”,
whether the provisions of article 5(1) of the Convention are qualified by the legal regime established pursuant to United Nations Security Council Resolution (“UNSCR”) 1546 (and subsequent resolutions) by reason of the operation of articles 25 and 103 of the UN Charter, such that the detention of the appellant has not been in violation of article 5(1),
whether English common law or Iraqi law applies to the appellant’s detention and, if the former, whether there is any legal basis for his detention.
The first issue arose only before the House of Lords.
The House of Lords unanimously dismissed the claimant’s appeal, holding that the appellant’s detention was attributable to the United Kingdom and not the United Nations and thus not outside the scope of the 1950 European Convention on Human Rights, but further holding that, in view of Articles 25 and 103 of the UN Charter and UN Security Council Resolution 1546 and successive resolutions, the appellant’s rights under Article 5(1) of the 1950 European Convention on Human Rights were not violated, and that the third issue, dealing with torts, fell under Iraqi law. With regard to the first issue, Lord Rodger entered a dissenting opinion, and Lord Brown was undecided. Lord Bingham gave the leading opinion:
1. Since October 2004 the appellant, who is a national of both this country and Iraq, has been held in custody by British troops at detention facilities in Iraq. He complains that his detention infringes his rights under article 5(1) of the European Convention on Human Rights, a Convention right protected by the Human Rights Act 1998, and also founds a good claim in this country under the English common law. These claims were rejected by the Queen’s Bench Divisional Court (Moses and Richards JJ:  EWHC 1809 (Admin), HRLR 1355) and also by the Court of Appeal (Brooke, May and Rix LJJ:  EWCA Civ 327,  QB 621. Both courts below delivered lengthy and careful judgments, commensurate with the importance and difficulty of the issues then raised, but a new issue has (by agreement) been raised and argued before the House, as explained below.
2. The appellant has not been charged with any offence, and no charge or trial is in prospect. He was arrested and has since been detained on the ground that his internment is necessary for imperative reasons of security in Iraq. He was suspected of being a member of a terrorist group involved in weapons smuggling and explosive attacks in Iraq. He was believed by the British authorities to have been 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. These allegations are roundly denied by the appellant, and they have not been tested in any proceedings. Nor is their correctness an issue in these proceedings. The House must therefore resolve the legal issues falling for decision on the assumption that the allegations are true, without forming any judgment whether they are or not.
3. In the courts below the appellant’s Human Rights Act argument was directed to a single question, turning essentially on the relationship between article 5(1) of the European Convention on the one hand and the United Nations Charter, and certain resolutions of the UN Security Council, on the other. More specifically, this question is agreed to be whether the provisions of article 5(1) of the Convention are qualified by the legal regime established pursuant to United Nations Security Council Resolution (“UNSCR”) 1546 (and subsequent resolutions) by reason of the operation of articles 25 and 103 of the UN Charter, such that the detention of the appellant has not been in violation of article 5(1). This is the issue which the courts below decided against the appellant, and it remains an issue dividing the parties. But it is now the second issue. For the Secretary of State, prompted (it seems) by 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 (unreported), 2 May 2007) has raised an entirely new issue, not ventilated in the courts below, directed to the attributability in international law of the conduct of which the appellant complains. As agreed, the issue is “whether, by reason of the provisions of UNSCR 1511 (2003) and/or UNSCR 1546 (2004), and/or UNSCR 1637 (2005) and/or UNSCR 1723 (2006) and/or (so far as it may be relevant) UNSCR 1483 (2003), the detention of the appellant is attributable to the United Nations and thus outside the scope of the [1950 European Convention on Human Rights]”. The Secretary of State, relying strongly on Behrami and Saramati, contends that the appellant’s detention is attributable to the UN, a contention which (if correct) defeats his claim under article 5. This has been treated as the first issue in this appeal.
The first issue
5. It was common ground between the parties that the governing principle is that expressed by the International Law Commission [ILC] in article 5 of its draft articles on the Responsibility of International Organizations (adopted in May 2004 and cited by the European Court in Behrami and Saramati , para 30):
“Conduct of organs or agents placed at the disposal of an international organization by a state or another international organization
The conduct of an organ of a state or an organ or agent of an international organization that is placed at the disposal of another international organization shall be considered under international law an act of the latter organization if the organization exercises effective control over that conduct.”
The European Court also quoted (para 31) from paras 1 and 6−7 of the ILC’s authoritative commentary on this article (General Assembly Official Records 59th Session, Supp No 10 (A/59/10)):
“1. When an organ of a state is placed at the disposal of an international organization, the organ may be fully seconded to that organization. In this case the organ’s conduct would clearly be attributable only to the receiving organization … Article 5 deals with the different situation in which the lent organ or agent still acts to a certain extent as organ of the lending state or as organ or agent of the lending organization. This occurs for instance in the case of military contingents that a state placed at the disposal of the [UN] for a peacekeeping operation, since the state retains disciplinary powers and criminal jurisdiction over the members of the national contingent. In this situation the problem arises whether a specific conduct of the lent organ or agent has to be attributed to the receiving organization or to the lending state or organization …
6. Practice relating to peacekeeping forces is particularly significant in the present context because of the control that the contributing state retains over disciplinary matters and criminal affairs. This may have consequences with regard to attribution of conduct …
Attribution of conduct to the contributing state is clearly linked with the retention of some powers by that state over its national contingent and thus on the control that the state possesses in the relevant respect.
7. As has been held by several scholars, when an organ or agent is placed at the disposal of an international organization, the decisive question in relation to attribution of a given conduct appears to be who has effective control over the conduct in question.”
6. Invited by the ILC to comment on the attribution of the conduct of peacekeeping forces to the UN or to contributing states, the UN Secretariat responded (A/CN.4/545, 25 June 2004, pp 17−18):
“The question of attribution of the conduct of a peacekeeping force to the United Nations or to contributing states is determined by the legal status of the force, the agreements between the United Nations and contributing states and their opposability to third states.
A United Nations peacekeeping force established by the Security Council or the General Assembly is a subsidiary organ of the United Nations. Members of the military personnel placed by member states under United Nations command although remaining in their national service are, for the duration of their assignment to the force, considered international personnel under the authority of the United Nations and subject to the instructions of the force commander. The functions of the force are exclusively international and members of the force are bound to discharge their functions with the interest of the United Nations only in view. The peacekeeping operation as a whole is subject to the executive direction and control of the Secretary-General, under the overall direction of the Security Council or the General Assembly as the case may be.
As a subsidiary organ of the United Nations, an act of a peacekeeping force is, in principle, imputable to the Organization, and if committed in violation of an international obligation entails the international responsibility of the Organization and its liability in compensation. The fact that any such act may have been performed by members of a national military contingent forming part of the peacekeeping operation does not affect the international responsibility of the United Nations vis-à-vis third states or individuals.
Agreements concluded between the United Nations and states contributing troops to the Organization contain a standard clause on third-party liability delineating the respective responsibilities of the Organization and contributing states for loss, damage, injury or death caused by the personnel or equipment of the contributing state. Article 9 of the Model Memorandum of Understanding between the United Nations and [participating state] contributing resources to [The United Nations Peacekeeping Operation] provides in this regard:
‘The United Nations will be responsible for dealing with any claims by third parties where the loss of or damage to their property, or death or personal injury, was caused by the personnel or equipment provided by the Government in the performance of services or any other activity or operation under this memorandum. However if the loss, damage, death or injury arose from gross negligence or wilful misconduct of the personnel provided by the Government, the Government will be liable for such claims’
While the agreements between the United Nations and contributing states divide the responsibility in the relationship between them, they are not opposable to third states. Vis-à-vis third states and individuals, therefore, where the international responsibility of the Organization is engaged, liability in compensation is, in the first place, entailed for the United Nations, which may then revert to the contributing state concerned and seek recovery on the basis of the agreement between them.
The principle of attribution of the conduct of a peacekeeping force to the United Nations is premised on the assumption that the operation in question is conducted under United Nations command and control, and thus has the legal status of a United Nations subsidiary organ. In authorized chapter VII operations conducted under national command and control, the conduct of the operation is imputable to the state or states conducting the operation. In joint operations, namely, those conducted by a United Nations peacekeeping operation and an operation conducted under national or regional command and control, international responsibility lies where effective command and control is vested and practically exercised (see paras 17–18 of the Secretary-General’s report A/51/389).”
The cited paragraphs in the Secretary-General’s report A/51/389 (20 September 1996) read:
“17. The international responsibility of the United Nations for combat-related activities of the United Nations forces is premised on the assumption that the operation in question is under the exclusive command and control of the United Nations. Where a Chapter VII-authorized operation is conducted under national command and control, international responsibility for the activities of the force is vested in the state or states conducting the operation. The determination of responsibility becomes particularly difficult, however, in cases where a state or states provide the United Nations with forces in support of a United Nations operation but not necessarily as an integral part thereof, and where operational command and control is unified or coordinated. This was the case in Somalia where the Quick Reaction Force and the US Rangers were provided in support of the United Nations Operation in Somalia (UNOSOM II), and this was also the case in the former Yugoslavia where the Rapid Reaction Force was provided in support of the United Nations Protection Force (UNPROFOR).
18. In joint operations, international responsibility for the conduct of the troops lies where operational command and control is vested according to the arrangements establishing the modalities of cooperation between the state or states providing the troops and the United Nations. In the absence of formal arrangements between the United Nations and the state or states providing troops, responsibility would be determined in each and every case according to the degree of effective control exercised by either party in the conduct of the operation.”
The UN Secretariat was further invited by the ILC to address the following question (see A/CN.4/556, 12 May 2005, p 4):
“In the event that a certain conduct, which a member state takes in compliance with a request on the part of an international organization, appears to be in breach of an international obligation both of that state and of that organization, would the organization also be regarded as responsible under international law? Would the answer be the same if the state’s wrongful conduct was not requested, but only authorized by the organization?
The Secretariat’s answer was (ibid, p 46):
“As for the third question raised by the commission, we are not aware of any situation where the Organization was held jointly or residually responsible for an unlawful act by a state in the conduct of an activity or operation carried out at the request of the Organization or under its authorization. In the practice of the Organization, however, a measure of accountability was nonetheless introduced in the relationship between the Security Council and member states conducting an operation under Security Council authorization, in the form of periodic reports to the Council on the conduct of the operation. While the submission of these reports provides the Council with an important ‘oversight tool’, the Council itself or the United Nations as a whole cannot be held responsible for an unlawful act by the state conducting the operation, for the ultimate test of responsibility remains ‘effective command and control’.”
7. It is necessary to identify the main events occurring between March 2003 and the present before considering the application of these principles to the present case.
8. On 20 March 2003 coalition forces invaded Iraq. It is, as Brooke LJ observed in paragraph 15 of his judgment, “well known that the Coalition Forces invaded Iraq in the spring of 2003 after the abandonment of the efforts to obtain a further Security Council resolution which would give immediate backing to what the coalition states wished to do if Saddam Hussein did not comply with the Council’s demands”. On 16 April 2003 General Franks, a US general, issued a “freedom message” in which he announced the creation of the Coalition Provisional Authority (“the CPA”), a civilian administration which would exercise powers of government in Iraq for the time being. Major combat operations were declared to be complete on 1 May 2003, although hostilities did not end on that date in all parts of the country. As from that date the US and the UK became occupying powers, within the meaning of Section III of the Hague Regulations on the Laws and Customs of War on land (1907) and the Fourth Geneva Convention on the Protection of Civilian Persons in Time of War (1949) in the areas which they respectively occupied.
9. On 8 May 2003 the Permanent Representatives of the UK and the US at the UN addressed a joint letter to the President of the Security Council. In it they said that the states participating in the coalition would strictly abide by their obligations under international law, including those relating to the essential humanitarian needs of the Iraqi people; that the US, the UK and their coalition partners, acting under existing command and control arrangements through the commander of coalition forces, had created the CPA; that the US, the UK and their coalition partners, working through the CPA, should among other things provide for security in and for the provisional administration of Iraq; that they would facilitate the efforts of the Iraqi people to take the first steps towards forming a representative government based on the rule of law; and that the UN had a vital role to play in providing humanitarian relief, in supporting the reconstruction of Iraq and in helping in the formation of an Iraqi interim authority. On 13 May 2003 the US Secretary for Defence, Mr Donald Rumsfeld, appointed Mr Paul Bremer to be administrator of the CPA, which was divided into regions, that in the south being under British control. The CPA promptly set about the business of government. By CPA Regulation No 1, dated 16 May 2003, the CPA assumed “all executive, legislative and judicial authority necessary to achieve its objectives, to be exercised under relevant UN Security Council resolutions, including Resolution 1483 (2003), and the laws and usages of war”. Iraqi laws, unless suspended or replaced by the CPA, were to continue to apply insofar as they did not prevent the CPA from exercising its rights and fulfilling its obligations, or conflict with regulations or orders issued by the CPA. CPA Memorandum No 3 (CPA/MEM/27 June 2004/03) addressed issues of criminal procedure. In section 6(4) it referred to standards “in accordance with … the Fourth Geneva Convention”, which were to apply to all persons who were detained by coalition forces when necessary for imperative reasons of security, providing a right of appeal by an internee to a competent body.
10. Resolution 1483 was adopted by the Security Council on 22 May 2003. The resolution opened, as is usual, with a number of recitals, one of which referred to the US and UK Permanent Representatives’ letter of 8 May “recognizing the specific authorities, responsibilities, and obligations under applicable international law of these states as occupying powers under unified command (‘the Authority’)”. Then, acting under Chapter VII of the UN Charter, the Council called on the Authority, consistently with the UN Charter and other relevant international law, to promote the welfare of the Iraqi people and work towards the restoration of conditions of stability and security. The Council called upon all concerned to comply fully with their obligations under international law, including in particular the Geneva Conventions of 1949 and the Hague Regulations of 1907. The Council further requested the Secretary General to appoint a Special Representative in Iraq: he was to report regularly to the Council on his activities under the resolution, which were to co-ordinate the activities of the UN and other international agencies engaged in post-conflict processes and humanitarian assistance, in a number of specified ways including the protection of human rights. The Council decided, as it did consistently thereafter, to remain seised of the matter. In July 2003 an Iraqi Governing Council (“IGC”) was established, which the CPA was to consult on all matters concerning the temporary governance of Iraq.
11. Pursuant to UNSCR 1483 the Secretary General established a United Nations Assistance Mission for Iraq (UNAMI), a step welcomed by the Council in Resolution 1500 of 14 August 2003. This development was foreshadowed by the Secretary General in a report dated 17 July, in which he announced the appointment of Mr de Mello as his Special Representative and outlined the tasks which UNAMI was to undertake.
12. On 16 October 2003 the Security Council adopted Resolution 1511. Acting under Chapter VII of the UN Charter, the Council looked forward to the assumption of governmental powers by the people of Iraq and resolved that the UN, through the Secretary General, his Special Representative and UNAMI “should strengthen its vital role in Iraq, including by providing humanitarian relief, promoting the economic reconstruction of and conditions for sustainable development in Iraq, and advancing efforts to restore and establish national and local institutions for representative government”. The Secretary General was to report to the Security Council on his responsibilities under the resolution. In a new departure, the Council determined
“that the provision of security and stability is essential to the successful completion of the political process … and to the ability of the United Nations to contribute effectively to that process and the implementation of resolution 1483 (2003), and authorizes a multinational force [“MNF”] under unified command to take all necessary measures to contribute to the maintenance of security and stability in Iraq, including for the purpose of ensuring necessary conditions for the implementation of the timetable and programme as well as to contribute to the security of [UNAMI], the Governing Council of Iraq and other institutions of the Iraqi interim administration, and key humanitarian and economic infrastructure”.
Member states were urged to contribute assistance under this UN mandate, including military forces, to the multinational force referred to. The US, on behalf of the multinational force, was requested to report to the Council on the efforts and progress of this force.
13. On 8 March 2004 the IGC promulgated a transitional administrative law, paving the way towards an interim and then an elected Iraqi government. Reporting to the Security Council on 16 April 2004, the US Permanent Representative said that the multinational force had conducted “the full spectrum of military operations, which range from the provision of humanitarian assistance, civil affairs and relief and reconstruction activities to the detention of those who are threats to security×” In a submission made by the CPA to the UN High Commissioner for Human Rights on 28 May 2004 it was stated that the US and UK military forces retained legal responsibility for the prisoners of war and detainees whom they respectively held in custody. This was a matter of some significance, since by this time the abuses perpetrated by US military personnel at the Abu Ghraib prison had become public knowledge.
14. Chronologically, the next events to be noted are two letters, each dated 5 June 2004 and written to the President of the Security Council by the Prime Minister of the Interim Government of Iraq (Dr Allawi) and the US Secretary of State (Mr Powell). Dr Allawi looked forward to the establishment of a free and democratic Iraq, but stressed that security and stability continued to be essential to the country’s political transition, and asked for the support of the Security Council and the international community until Iraq could provide its own security. He sought a new resolution on the multinational force mandate to contribute to maintaining security in Iraq, “including through the tasks and arrangements set out in the letter” from Mr Powell to the President of the Council. Mr Powell in his letter recognised the request of Dr Allawi’s government for the continued presence of the multinational force in Iraq and confirmed that the force, under unified command, was prepared to continue to contribute to the maintenance of security in Iraq. He continued, using language plainly drawn from article 78 of the Fourth Geneva Convention (although the period of occupation was about to end):
“Under the agreed arrangement, the MNF stands ready to continue to undertake a broad range of tasks to contribute to the maintenance of security and to ensure force protection.
These include activities necessary to counter ongoing security threats posed by forces seeking to influence Iraq’s political future through violence. This will include combat operations against members of these groups, internment where this is necessary for imperative reasons of security, and the continued search for and securing of weapons that threaten Iraq’s security. A further objective will be to train and equip Iraqi security forces that will increasingly take responsibility for maintaining Iraq’s security. The MNF also stands ready as needed to participate in the provision of humanitarian assistance, civil affairs support, and relief and reconstruction assistance requested by the Iraqi Interim Government and in line with previous Security Council Resolutions.”
He regarded the existing framework governing responsibility for exercise of jurisdiction by contributing states over their military personnel as sufficient, and assured the President that “the forces that make up the MNF are and will remain committed at all times to act consistently with their obligations under the law of armed conflict, including the Geneva Conventions”.
15. These letters were the immediate prelude to Resolution 1546, adopted by the Security Council on 8 June 2004. Little turns on the opening recitals, save that the Council welcomed the assurances in Mr Powell’s letter and determined that the situation in Iraq continued to constitute a threat to international peace and security. Acting under Chapter VII of the UN Charter, the Council described the role of UNAMI, reaffirmed its authorisation under UNSCR 1511 (2003) for the multinational force under unified command, having regard to the annexed letters of Dr Allawi and Mr Powell, and decided
“that the multinational force shall have the authority to take all necessary measures to contribute to the maintenance of security and stability in Iraq in accordance with the letters annexed to this resolution expressing, inter alia, the Iraqi request for the continued presence of the multinational force and setting out its tasks, including by preventing and deterring terrorism, so that, inter alia, the United Nations can fulfil its role in assisting the Iraqi people as outlined in paragraph seven above and the Iraqi people can implement freely and without intimidation the timetable and programme for the political process and benefit from reconstruction and rehabilitation activities; …”
The Council further decided that the mandate for the multinational force should be reviewed at the request of the Government of Iraq or 12 months from the date of the resolution and that the mandate should end on completion of the political process described earlier in the resolution, but the Council undertook to terminate the mandate earlier if requested by the Government of Iraq. The US, on behalf of the multinational force, was again requested to report at stated intervals.
16. On 27 June 2004 the CPA issued a revised order giving members of the multinational force and the CPA general immunity from Iraqi process, and providing that they should be subject to the exclusive jurisdiction of their sending states. On the following day power was formally transferred to the Iraqi interim government, the CPA was dissolved and the occupation of Iraq by coalition forces came to an end. Such was the position when the appellant was taken into British custody in October 2004.
17. After this date there were two further resolutions of the Security Council (Resolution 1637 of 8 November 2005 and Resolution 1723 of 28 November 2006), to which, however, little significance was, rightly, attached. Their effect was to maintain the status quo. The appellant drew attention to reports made by the Secretary General to the Security Council which expressed concern about persons detained by units of the multinational force in a manner inconsistent, it was said, with any suggestion that this was, in international law, the responsibility of the UN. Thus, for instance, on 7 June 2005 (S/2005/373, para 72) the Secretary General reported that 6000 detainees were in the custody of the multinational force and despite the release of some detainees numbers continued to grow. He commented: “Prolonged detention without access to lawyers and courts is prohibited under international law, including during states of emergency”. Such observations were echoed in reports by UNAMI which, in its report on the period 1 July–31 August 2005, para 12, expressed concern about the high number of persons detained, observing that “Internees should enjoy all the protections envisaged in all the rights guaranteed by international human rights conventions”. In its next report (1 September–31 October 2005) it repeated this expression of concern (para 6), and advised “There is an urgent need to provide [a] remedy to lengthy internment for reasons of security without adequate judicial oversight”. The appellant pointed out that, according to an answer given by the armed forces minister in the House of Commons on 10 November 2004, UK forces in Iraq were operating under UNSCR 1546 and were not engaged on UN operations: Hansard (HC Debates), 10 November 2004, col 720W. A similar view, it was suggested, was taken by the Working Group of the UN’s Human Rights Council (A/HRC/4/40/Add.1) which considered the position of Mr Tariq Aziz and, in paragraph 25 of its opinion on the case, stated:
“The Working Group concludes that until 1 July 2004, Mr Tariq Aziz had been detained under the sole responsibility of the Coalition members as occupying powers or, to be more precise, under the responsibility of the United States Government. Since then and as the Iraqi Criminal Tribunal is a court of the sovereign State of Iraq, the pre-trial detention of a person charged before the tribunal is within the responsibility of Iraq. In the light of the fact that Mr Aziz is in the physical custody of the United States authorities, any possible conclusion as to the arbitrary nature of his deprivation of liberty may involve the international responsibility of the United States Government.”
18. As already indicated, the Secretary of State founds his non-attributability argument on the judgment of the European Court, sitting as a Grand Chamber, in Behrami and Saramati, which related to events in Kosovo. The case concerned Resolution 1244, adopted by the Security Council on 10 June 1999. In the recitals to the resolution, the Council welcomed the statement of principles adopted to resolve the Kosovo crisis on 6 May 1999, which formed annex 1 to the resolution, and welcomed also the acceptance by the Federal Republic of Yugoslavia of the first nine points in a statement of principles which formed annex 2 to the resolution. Annex 1 provided, among other things, for the “Deployment in Kosovo of effective international civil and security presences, endorsed and adopted by the United Nations, capable of guaranteeing the achievement of the common objectives.” Annex 2 provided for the “Deployment in Kosovo under United Nations auspices of effective international civil and security presences, acting as may be decided under Chapter VII of the Charter, capable of guaranteeing the achievement of common objectives”. The international security presence with substantial NATO participation was to be deployed under unified command and control. The international civil presence was to include an interim administration. Having determined that the situation in the region continued to constitute a threat to international peace and security, and acting under Chapter VII of the UN Charter, the Council determined on “the deployment in Kosovo, under United Nations auspices, of international civil and security presences …” A Special Representative appointed by the Secretary General was to control the implementation of the international civil presence and coordinate its activities with those of the international security presence. Member states and relevant international organisations were authorised to establish the international security presence whose responsibilities were to include, among other things, supervising de-mining until the international civil presence could, as appropriate, take over responsibility for this task. The responsibilities of the international civil presence were to include a wide range of tasks of a civilian administrative nature. Both these presences were to continue for an initial period of twelve months, and thereafter unless the Security Council decided otherwise. Both presences were duly established, the international security presence being known as KFOR and the international civil presence as UNMIK.
19. The applicants’ claims in Strasbourg were not the same. The Behramis complained of death and injury caused to two children by the explosion of an undetonated cluster bomb unit, previously dropped by NATO. They blamed KFOR for failing to clear these dangerous mines. Mr Saramati complained of his extra-judicial detention by officers acting on the orders of KFOR between 13 July 2001 and 26 January 2002.
20. The Grand Chamber gave a lengthy judgment, rehearsing various articles of the UN Charter to which I refer below in the context of the second issue, and citing the ILC article and commentary referred to at para 5 above. Reference was made (para 36) to a Military Technical Agreement made between KFOR and the governments of Yugoslavia and Serbia providing for the withdrawal of Yugoslav forces and the deployment in Kosovo “under United Nations auspices of effective international civil and security presences”. UNSCR 1244 (1999) was quoted at some length. The court noted (para 69) that the Yugoslav Government did not control Kosovo, which was under the effective control (para 70) of the international presences which exercised the public powers normally exercised by that government. The court considered (para 71) that the question raised by the cases was less whether the respondent states had exercised extra-territorial jurisdiction in Kosovo but, far more centrally, whether the court was competent to examine under the Convention those states’ contribution to the civil and security presences which did exercise the relevant control of Kosovo.
21. The court summarised (paras 73−120) the submissions of the applicants, the respondent states, seven third party states and the UN. In its own assessment it held that the supervision of de-mining at the relevant time fell within UNMIK’s mandate and that for issuing detention orders within the mandate of KFOR (paras 123–127). In considering whether the inaction of UNMIK and the action of KFOR could be attributed to the UN, the court held (para 129) that the UN had in Resolution 1244 (1999) “delegated” powers to establish international security and civil presences, using “delegate” (as it had explained in para 43) to refer to the empowering by the Security Council of another entity to exercise its function as opposed to “authorising” an entity to carry out functions which it could not itself perform. It considered that the detention of Mr Saramati was in principle attributable to the UN (para 141). This was because (paras 133–134) the UN had retained ultimate authority and control and had delegated operational command only. This was borne out (para 134) by the facts that Chapter VII allowed the Security Council to delegate, the relevant power was a delegable power, the delegation was prior and explicit in Resolution 1244, the extent of the delegation was defined, and the leadership of the security and civil presences were required to report to the Security Council (as was the Secretary General). Thus (para 135) under Resolution 1244 the Security Council was to retain ultimate authority and control over the security mission and it delegated to NATO the power to establish KFOR. Since UNMIK was a subsidiary organ of the UN created under Chapter VII of the UN Charter its inaction was in principle attributable to the UN (paras 129, 142–143). Dealing finally with its competence ratione personae, the court said (para 149):
“In the present case, chapter VII allowed the UNSC to adopt coercive measures in reaction to an identified conflict considered to threaten peace, namely UNSC Resolution 1244 establishing UNMIK and KFOR. Since operations established by UNSC Resolutions under Chapter VII of the UN Charter are fundamental to the mission of the UN to secure international peace and security and since they rely for their effectiveness on support from member states, the Convention cannot be interpreted in a manner which would subject the acts and omissions of Contracting Parties which are covered by UNSC Resolutions and occur prior to or in the course of such missions, to the scrutiny of the Court. To do so would be 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. It would also be tantamount to imposing conditions on the implementation of a UNSC Resolution which were not provided for in the text of the Resolution itself. This reasoning equally applies to voluntary acts of the respondent States such as the vote of a permanent member of the UNSC in favour of the relevant Chapter VII Resolution and the contribution of troops to the security mission: such acts may not have amounted to obligations flowing from membership of the UN but they remained crucial to the effective fulfilment by the UNSC of its Chapter VII mandate and, consequently, by the UN of its imperative peace and security aim.”
The court accordingly concluded (para 151) that, since UNMIK was a subsidiary organ of the UN created under Chapter VII and KFOR was exercising powers lawfully delegated under Chapter VII by the Security Council, their actions were directly attributable to the UN, an organisation of universal jurisdiction fulfilling its imperative collective security objective. The applicants’ complaints were accordingly incompatible ratione personae with the provisions of the Convention.
22. Against the factual background described above a number of questions must be asked in the present case. Were UK forces placed at the disposal of the UN? Did the UN exercise effective control over the conduct of UK forces? Is the specific conduct of the UK forces in detaining the appellant to be attributed to the UN rather than the UK? Did the UN have effective command and control over the conduct of UK forces when they detained the appellant? Were the UK forces part of a UN peacekeeping force in Iraq? In my opinion the answer to all these questions is in the negative.
23. The UN did not dispatch the coalition forces to Iraq. The CPA was established by the coalition states, notably the US, not the UN. When the coalition states became occupying powers in Iraq they had no UN mandate. Thus when the case of Mr Mousa reached the House as one of those considered in R (Al-Skeini and others) v Secretary of State for Defence) (The Redress Trust intervening)  UKHL 26,  3 WLR 33 the Secretary of State accepted that the UK was liable under the European Convention for any ill-treatment Mr Mousa suffered, while unsuccessfully denying liability under the Human Rights Act 1998. It has not, to my knowledge, been suggested that the treatment of detainees at Abu Ghraib was attributable to the UN rather than the US. Following UNSCR 1483 in May 2003 the role of the UN was a limited one focused on humanitarian relief and reconstruction, a role strengthened but not fundamentally altered by UNSCR 1511 in October 2003. By UNSCR 1511, and again by UNSCR 1546 in June 2004, the UN gave the multinational force express authority to take steps to promote security and stability in Iraq, but (adopting the distinction formulated by the European Court in para 43 of its judgment in
Behrami and Saramati) the Security Council was not delegating its power by empowering the UK to exercise its function but was authorising the UK to carry out functions it could not perform itself. At no time did the US or the UK disclaim responsibility for the conduct of their forces or the UN accept it. It cannot realistically be said that US and UK forces were under the effective command and control of the UN, or that UK forces were under such command and control when they detained the appellant.
24. The analogy with the situation in Kosovo breaks down, in my opinion, at almost every point. 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.
25. I would resolve this first issue in favour of the appellant and against the Secretary of State.
[emphasis in original]
In 1991, in a report submitted to the UN Security Council on operations in the Gulf War, the United Kingdom stated, with respect to the treatment of British prisoners of war by Iraq, that “the Iraqi Ambassador was reminded of the responsibility of his Government … for any grave breach of the [1949 Geneva] Conventions”.
In 2010, in its closing submissions to the public inquiry into the circumstances surrounding the death of Baha Mousa and the treatment of those detained with him by UK armed forces in Iraq in 2003, the UK Ministry of Defence stated:
[T]he MOD seeks to draw out the primary and overwhelming role which the brutality and inhumanity shown to Baha Mousa and the detainees had in their fate. Before doing so it is right to emphasise that the MOD does not seek thereby to shirk its corporate responsibility. It fully accepts that deplorable acts were carried out by British soldiers on duty, for whose actions it is ultimately responsible.