United Kingdom of Great Britain and Northern Ireland
Practice Relating to Rule 99. Deprivation of Liberty
The UK Military Manual (1958) provides that “unlawful confinement” of persons protected by the 1949 Geneva Convention IV is a grave breach of the Convention.
The UK Geneva Conventions Act (1957), as amended in 1995, punishes “any person, whatever his nationality, who, whether in or outside the United Kingdom, commits, or aids, abets or procures the commission by any other person of, a grave breach of any of the [1949 Geneva] conventions”.
Under the UK ICC Act (2001), it is a punishable offence to commit a war crime as defined in Article 8(2)(a)(vii) of the 1998 ICC Statute.
In 2004, in A and others v. Secretary of State for the Home Department, the UK House of Lords were called upon to decide whether, first, the November 2001 UK “Human Rights Act 1998 (Designated Derogation) Order 2001”, made in view of the United Kingdom’s derogation in December 2001 from Article 5(1) of the 1950 European Convention on Human Rights under Article 15 of the Convention, was compatible with Article 5 of the Convention, and whether, second, Section 23, contained in Part IV of the December 2001 UK Anti-terrorism, Crime and Security Act (ATCSA), was compatible with Article 5 of the Convention. The appeals were brought by persons who had been certified under Section 21 and detained under Section 23 of the ATCSA.
In a July 2002 decision, the Special Immigration Appeals Commission (SIAC) had allowed the appellants’ appeals. In October 2002, the England and Wales Court of Appeal had allowed the Home Secretary’s appeal against the SIAC’s decision (A v. Secretary of State for the Home Department,  EWCA Civ 1502, Judgment of 25 October 2002).
The House of Lords, by an eight to one decision, Lord Walker dissenting, allowed the appellants’ appeals: the majority, with Lord Hoffmann dissenting on this point, accepted the Government’s assessment that the threshold condition for a permissible derogation under Article 15 of the 1950 European Convention on Human Rights, a “public emergency threatening the life of the nation”, had been reached. They further held, however, that the measures taken in derogation had been disproportionate, and that Section 23, providing for the detention only of non-UK nationals as suspected terrorists, was discriminatory.
They therefore issued a quashing order in respect of the “Human Rights Act 1998 (Designated Derogation) Order 2001” as well as a declaration under the 1998 UK Human Rights Act that Section 23 of the ATCSA was incompatible with Articles 5 and 14 of the 1950 European Convention on Human Rights.
In 2005, Part IV of the ATCSA was replaced by the 2005 Prevention of Terrorism Act.
Lord Bingham gave the leading opinion in the case:
1. The nine appellants before the House challenge a decision of the Court of Appeal (Lord Woolf CJ, Brooke and Chadwick LJJ) made on 25 October 2002 ( EWCA Civ 1502,  QB 335). The Court of Appeal allowed the Home Secretary’s appeal against the decision of the Special Immigration Appeals Commission (Collins J, Kennedy LJ and Mr Ockelton) dated 30 July 2002 and dismissed the appellants’ cross-appeals against that decision:  HRLR 1274.
2. Eight of the appellants were certified by the Home Secretary under section 21 of the Anti-terrorism, Crime and Security Act 2001 on 17 or 18 December 2001 and were detained under section 23 of that Act on 19 December 2001. The ninth was certified on 5 February 2002 and detained on 8 February 2002. Two of the eight December detainees exercised their right to leave the United Kingdom: one went to Morocco on 22 December 2001, the other (a French as well as an Algerian citizen) went to France on 13 March 2002. One of the December detainees was transferred to Broadmoor Hospital on grounds of mental illness in July 2002. Another was released on bail, on strict conditions, in April 2004. The Home Secretary revoked his certification of another in September 2004, and he has been released without conditions.
3. The appellants share certain common characteristics which are central to their appeals. All are foreign (non-UK) nationals. None has been the subject of any criminal charge. In none of their cases is a criminal trial in prospect. All challenge the lawfulness of their detention. More specifically, they all contend that such detention was inconsistent with obligations binding on the United Kingdom under the European Convention on Human Rights, given domestic effect by the Human Rights Act 1998; that the United Kingdom was not legally entitled to derogate from those obligations; that, if it was, its derogation was nonetheless inconsistent with the European Convention and so ineffectual to justify the detention; and that the statutory provisions under which they have been detained are incompatible with the Convention. The duty of the House, and the only duty of the House in its judicial capacity, is to decide whether the appellants’ legal challenge is soundly based.
5. In July 2000 Parliament enacted the Terrorism Act 2000 … Relevantly for present purposes, that Act defined “terrorism” in section 1 …
7. Her Majesty’s Government reacted to the events of 11 September  in two ways directly relevant to these appeals. First, it introduced (and Parliament, subject to amendment, very swiftly enacted) what became Part 4 of the Anti-terrorism, Crime and Security Act 2001. Secondly, it made the Human Rights Act 1998 (Designated Derogation) Order 2001 (SI 2001/3644) (“the Derogation Order”). Before summarising the effect of these measures it is important to understand their underlying legal rationale.
8. First, it was provided by para 2(2) of Schedule 3 to the Immigration Act 1971 that the Secretary of State might detain a non-British national pending the making of a deportation order against him. Para 2(3) of the same schedule authorised the Secretary of State to detain a person against whom a deportation order had been made “pending his removal or departure from the United Kingdom”. In R v Governor of Durham Prison, Ex p Hardial Singh  1 WLR 704 it was held, in a decision which has never been questioned (and which was followed by the Privy Council in Tan Te Lam v Superintendent of Tai A Chau Detention Centre  AC 97), that such detention was permissible only for such time as was reasonably necessary for the process of deportation to be carried out. Thus there was no warrant for the long-term or indefinite detention of a non-UK national whom the Home Secretary wished to remove. This ruling was wholly consistent with the obligations undertaken by the United Kingdom in the European Convention on Human Rights, the core articles of which were given domestic effect by the Human Rights Act 1998. Among these articles is article 5(1) which guarantees the fundamental human right of personal freedom: “Everyone has the right to liberty and security of person”. This must be read in the context of article 1, by which contracting states undertake to secure the Convention rights and freedoms to “everyone within their jurisdiction”. But the right of personal freedom, fundamental though it is, cannot be absolute and article 5(1) of the Convention goes on to prescribe certain exceptions. One exception is crucial to these appeals:
“(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:
(f) the lawful arrest or detention of … a person against whom action is being taken with a view to deportation …”
Thus there is, again, no warrant for the long-term or indefinite detention of a non-UK national whom the Home Secretary wishes to remove. Such a person may be detained only during the process of deportation. Otherwise, the Convention is breached and the Convention rights of the detainee are violated.
9. Secondly, reference must be made to the important decision of the European Court of Human Rights in Chahal v United Kingdom (1996) 23 EHRR 413. Mr Chahal was an Indian citizen who had been granted indefinite leave to remain in this country but whose activities as a Sikh separatist brought him to the notice of the authorities both in India and here. The Home Secretary of the day decided that he should be deported from this country because his continued presence here was not conducive to the public good for reasons of a political nature, namely the international fight against terrorism. He resisted deportation on the ground (among others) that, if returned to India, he faced a real risk of death, or of torture in custody contrary to article 3 of the European Convention which provides that “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”. Before the European Court the United Kingdom contended that the effect of article 3 should be qualified in a case where a state sought to deport a non-national on grounds of national security. This was an argument which the Court, affirming a unanimous decision of the Commission, rejected … The Court went on to consider whether Mr Chahal’s detention, which had lasted for a number of years, had exceeded the period permissible under article 5(1)(f). On this question the Court, differing from the unanimous decision of the Commission, held that it had not. But it reasserted (para 113) that “any deprivation of liberty under Article 5(1)(f) will be justified only for as long as deportation proceedings are in progress”. In a case like Mr Chahal’s, where deportation proceedings are precluded by article 3, article 5(1)(f) would not sanction detention because the non-national would not be “a person against whom action is being taken with a view to deportation”. A person who commits a serious crime under the criminal law of this country may of course, whether a national or a non-national, be charged, tried and, if convicted, imprisoned. But a non-national who faces the prospect of torture or inhuman treatment if returned to his own country, and who cannot be deported to any third country and is not charged with any crime, may not under article 5(1)(f) of the Convention and Schedule 3 to the Immigration Act 1971 be detained here even if judged to be a threat to national security.
10. The European Convention gives member states a limited right to derogate from some articles of the Convention (including article 5, although not article 3). The governing provision is article 15 … Article 15 of the Convention is not one of the articles expressly incorporated by the 1998 Act, but section 14 of that Act makes provision for prospective derogations by the United Kingdom to be designated for the purposes of the Act in an order made by the Secretary of State. It was in exercise of his power under that section that the Home Secretary, on 11 November 2001, made the Derogation Order, which came into force two days later, although relating to what was at that stage a proposed derogation.
The Derogation Order
11. The derogation related to article 5(1), in reality article 5(1)(f), of the Convention. The proposed notification by the United Kingdom was set out in a schedule to the Order. The first section of this, entitled “Public emergency in the United Kingdom”, referred to the attacks of 11 September and to United Nations Security Council resolutions recognising those attacks as a threat to international peace and security and requiring all states to take measures to prevent the commission of terrorist attacks, “including by denying safe haven to those who finance, plan, support or commit terrorist attacks”. It was stated in the Schedule:
“There exists a terrorist threat to the United Kingdom from persons suspected of involvement in international terrorism. In particular, there are foreign nationals present in the United Kingdom who are suspected of being concerned in the commission, preparation or instigation of acts of international terrorism, of being members of organisations or groups which are so concerned or of having links with members of such organisations or groups, and who are a threat to the national security of the United Kingdom.”
The next section summarised the effect of what was to become the 2001 Act. A brief account was then given of the power to detain under the Immigration Act 1971 and reference was made to the decision in
Hardial Singh. In a section entitled “Article 5(1)(f) of the Convention” the effect of the Court’s decision in Chahal was summarised. In the next section it was recognised that the extended power in the new legislation to detain a person against whom no action was being taken with a view to deportation might be inconsistent with article 5(1)(f). Hence the need for derogation. Formal notice of derogation was given to the Secretary General on 18 December 2001. Corresponding steps were taken to derogate from article 9 of the International Covenant on Civil and Political Rights 1966, which is similar in effect to article 5, although not (like article 5) incorporated into domestic law.
The 2001 Act
12. The 2001 Act is a long and comprehensive statute. Only Part 4 (“Immigration and Asylum”) has featured in argument in these appeals, because only Part 4 contains the power to detain indefinitely on reasonable suspicion without charge or trial of which the appellants complain, and only Part 4 is the subject of the United Kingdom derogation. Section 21 provides for certification of a person by the Secretary of State:
“21 Suspected international terrorist: certification
(1) The Secretary of State may issue a certificate under this section in respect of a person if the Secretary of State reasonably –
(a) believes that the person’s presence in the United Kingdom is a risk to national security, and
(b) suspects that the person is a terrorist.
(2) In subsection (1)(b) ‘terrorist’ means a person who –
(a) is or has been concerned in the commission, preparation or instigation of acts of international terrorism,
(b) is a member of or belongs to an international terrorist group, or
(c) has links with an international terrorist group.
(3) A group is an international terrorist group for the purposes of subjection (2)(b) and (c) if –
(a) it is subject to the control or influence of persons outside the United Kingdom, and
(b) the Secretary of State suspects that it is concerned in the commission, preparation or instigation of acts of international terrorism.
(4) For the purposes of subsection (2)(c) a person has links with an international terrorist group only if he supports or assists it.
(5) In this Part – ‘terrorism’ has the meaning given by section 1 of the Terrorism Act 2000 [see para 5 above], and ‘suspected international terrorist’ means a person certified under subsection (1).
13. Section 22(1) of the Act provides:
“22 Deportation, removal &c
(1) An action of a kind specified in subsection (2) may be taken in respect of a suspected international terrorist despite the fact that (whether temporarily or indefinitely) the action cannot result in his removal from the United Kingdom because of –
(a) a point of law which wholly or partly relates to an international agreement, or
(b) a practical consideration.”
The actions specified in subsection (2) include the making of a deportation order. It is clear that subsection (1)(a) is directed to articles 3 and 5(1)(f) of the Convention and the decision in Chahal. Subsection (1)(b) is directed primarily to the case where a Non-national cannot for Convention reasons be returned to his home country and there is no other country to which he may be removed.
14. Section 23(1) is the provision most directly challenged in these appeals. It provides:
(1) A suspected international terrorist may be detained under a provision specified in subsection (2) despite the fact that his removal or departure from the United Kingdom is prevented (whether temporarily or indefinitely) by –
(a) a point of law which wholly or partly relates to an international agreement, or
(b) a practical consideration.”
For present purposes the relevant provision specified in subsection (2) is para 2 of Schedule 3 to the Immigration Act 1971, the effect of which I have outlined in para 8 above.
15. The Act makes provision in section 24 for the grant of bail by the Special Immigration Appeals Commission (“SIAC”), in section 25 for appeal to SIAC against certification by a certified suspected international terrorist, in section 26 for periodic reviews of certification by SIAC, in section 28 for periodic reviews of the operation of sections 21 to 23, in section 29 for the expiry (subject to periodic renewal) of sections 21 to 23 and for the final expiry of those sections, unless renewed, on 10 November 2006. By section 21(8), legal challenges to certification are reserved to SIAC. Section 30 gives SIAC exclusive jurisdiction in derogation matters, which are defined to mean:
“(1)(a) a derogation by the United Kingdom from Article 5(1) of the Convention on Human Rights which relates to the detention of a person where there is an intention to remove or deport him from the United Kingdom, or
(b) the designation under section 14(1) of the Human Rights Act 1998 (c 42) of a derogation within paragraph (a) above.”
The appellants’ challenge in these proceedings was brought under this section …
16. The appellants repeated before the House a contention rejected by both SIAC and the Court of Appeal, that there neither was nor is a “public emergency threatening the life of the nation” within the meaning of article 15(1). Thus, they contended, the threshold test for reliance on article 15 has not been satisfied.
17. The European Court considered the meaning of this provision in Lawless v Ireland (No 3) (1961) 1 EHRR 15, a case concerned with very low-level IRA terrorist activity in Ireland and Northern Ireland between 1954 and 1957 … In para 22 of its judgment the Court held that it was for it to determine whether the conditions laid down in article 15 for the exercise of the exceptional right of derogation had been made out. In paras 28–29 it ruled:
“28. In the general context of Article 15 of the Convention, the natural and customary meaning of the words ‘other public emergency threatening the life of the nation’ is sufficiently clear; they refer to an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the State is composed. Having thus established the natural and customary meaning of this conception, the Court must determine whether the facts and circumstances which led the Irish Government to make their Proclamation of 5 July 1957 come within this conception. The Court, after an examination, finds this to be the case; the existence at the time of a ‘public emergency threatening the life of the nation’ was reasonably deduced by the Irish Government from a combination of several factors, namely: in the first place, the existence in the territory of the Republic of Ireland of a secret army engaged in unconstitutional activities and using violence to attain its purposes; secondly, the fact that this army was also operating outside the territory of the State, thus seriously jeopardising the relations of the Republic of Ireland with its neighbour; thirdly, the steady and alarming increase in terrorist activities from the autumn of 1956 and throughout the first half of 1957.
18. In the Greek Case (1969) 12 YB 1 the Government of Greece failed to persuade the Commission that there had been a public emergency threatening the life of the nation such as would justify derogation. In para 153 of its opinion the Commission described the features of such an emergency:
“153. Such a public emergency may then be seen to have, in particular, the following characteristics:
(1) It must be actual or imminent.
(2) Its effects must involve the whole nation.
(3) The continuance of the organised life of the community must be threatened.
(4) The crisis or danger must be exceptional, in that the normal measures or restrictions, permitted by the Convention for the maintenance of public safety, health and order, are plainly inadequate.”
In Ireland v United Kingdom (1978) 2 EHRR 25 the parties were agreed, as were the Commission and the Court, that the article 15 test was satisfied. This was unsurprising, since the IRA had for a number of years represented (para 212) “a particularly far-reaching and acute danger for the territorial integrity of the United Kingdom, the institutions of the six counties and the lives of the province’s inhabitants”. The article 15 test was accordingly not discussed, but the Court made valuable observations about its role where the application of the article is challenged:
“(a) The role of the Court
207. The limits on the Court’s powers of review are particularly apparent where Article 15 is concerned. It falls in the first place to each Contracting State, with its responsibility for ‘the life of [its] nation’, to determine whether that life is threatened by a ‘public emergency’ and, if so, how far it is necessary to go in attempting to overcome the emergency. By reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle in a better position than the international judge to decide both on the presence of such an emergency and on the nature and scope of derogations necessary to avert it. In this matter, Article 15(1) leaves those authorities a wide margin of appreciation. Nevertheless, the States do not enjoy an unlimited power in this respect. The Court, which, with the Commission, is responsible for ensuring the observance of the States’ engagements (Art. 19), is empowered to rule on whether the States have gone beyond the ‘extent strictly required by the exigencies’ of the crisis. The domestic margin of appreciation is thus accompanied by a European supervision.”
The Court repeated this account of its role in Brannigan and McBride v United Kingdom (1993) 17 EHRR 539, adding (para 43) that
“in exercising its supervision the Court must give appropriate weight to such relevant factors as the nature of the rights affected by the derogation, the circumstances leading to, and the duration of, the emergency situation.”
The Court again accepted that there had been a qualifying emergency when the applicants, following a derogation in December 1988, were detained for periods of six days and four days respectively in January 1989. In Aksoy v Turkey (1996) 23 EHRR 553 the Court had little difficulty in accepting, and the applicant did not contest, that a qualifying public emergency existed. This was, again, an unsurprising conclusion in the context of Kurdish separatist terrorism which had claimed almost 8000 lives. The applicant in Marshall v United Kingdom (10 July 2001, Appn No 41571/98) relied on the improved security situation in Northern Ireland to challenge the continuing validity of the United Kingdom’s 1988 derogation. Referring to its previous case law, the Court rejected the application as inadmissible, while acknowledging (pp 11–12) that it must
“address with special vigilance the fact that almost nine years separate the prolonged administrative detention of the applicants Brannigan and McBride from that of the applicant in the case before it.”
19. Article 4(1) of the ICCPR [1966 International Covenant on Civil and Political Rights] is expressed in terms very similar to those of article 15(1), and has led to the promulgation of “The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights” (1985) 7 HRQ 3. In paras 39–40, under the heading “Public Emergency which Threatens the Life of the Nation”, it is said:
“39. A state party may take measures derogating from its obligations under the International Covenant on Civil and Political Rights pursuant to Article 4 (hereinafter called ‘derogation measures’) only when faced with a situation of exceptional and actual or imminent danger which threatens the life of the nation. A threat to the life of the nation is one that:
(a) affects the whole of the population and either the whole or part of the territory of the State, and
(b) threatens the physical integrity of the population, the political independence or the territorial integrity of the State or the existence or basic functioning of institutions indispensable to ensure and protect the rights recognised in the Covenant.
40. Internal conflict and unrest that do not constitute a grave and imminent threat to the life of the nation cannot justify derogations under Article 4.”
20. The appellants did not seek to play down the catastrophic nature of what had taken place on 11 September 2001 nor the threat posed to western democracies by international terrorism. But they argued that there had been no public emergency threatening the life of the British nation, for three main reasons: if the emergency was not (as in all the decided cases) actual, it must be shown to be imminent, which could not be shown here; the emergency must be of a temporary nature, which again could not be shown here; and the practice of other states, none of which had derogated from the European Convention, strongly suggested that there was no public emergency calling for derogation. All these points call for some explanation.
21. The requirement of imminence is not expressed in article 15 of the European Convention or article 4 of the ICCPR but it has, as already noted, been treated by the European Court as a necessary condition of a valid derogation. It is a view shared by the distinguished academic authors of the Siracusa Principles, who in 1985 formulated the rule (applying to the ICCPR):
“54. The principle of strict necessity shall be applied in an objective manner. Each measure shall be directed to an actual, clear, present, or imminent danger and may not be imposed merely because of an apprehension of potential danger.”
In submitting that the test of imminence was not met, the appellants pointed to ministerial statements in October 2001 and March 2002: “There is no immediate intelligence pointing to a specific threat to the United Kingdom, but we remain alert, domestically as well as internationally;” and “[I]t would be wrong to say that we have evidence of a particular threat.”
22. The requirement of temporariness is again not expressed in article 15 or article 4 unless it be inherent in the meaning of “emergency.” But the UN Human Rights Committee on 24 July 2001, in General Comment No 29 on article 4 of the ICCPR, observed in para 2 that:
“Measures derogating from the provisions of the Covenant must be of an exceptional and temporary nature.”
This view was also taken by the parliamentary Joint Committee on Human Rights, which in its Eighteenth Report of the Session 2003–2004 (HL paper 158, HC 713, 21 July 2004), in para 4, observed:
“Derogations from human rights obligations are permitted in order to deal with emergencies. They are intended to be temporary. According to the Government and the Security Service, the UK now faces a near-permanent emergency.”
It is indeed true that official spokesmen have declined to suggest when, if ever, the present situation might change.
23. No state other than the United Kingdom has derogated from article 5. In Resolution 1271 adopted on 24 January 2002, the Parliamentary Assembly of the Council of Europe resolved (para 9) that:
“In their fight against terrorism, Council of Europe members should not provide for any derogations to the European Convention on Human Rights.”
It also called on all member states (para 12) to:
“refrain from using Article 15 of the European Convention on Human Rights (derogation in time of emergency) to limit the rights and liberties guaranteed under its Article 5 (right to liberty and security).”
In its General Comment No 29 on article 4 of the ICCPR, the UN Human Rights Committee on 24 July 2001 observed (in para 3):
“On a number of occasions the Committee has expressed its concern over States parties that appear to have derogated from rights protected by the Covenant, or whose domestic law appears to allow such derogation, in situations not covered by article 4.”
In Opinion 1/2002 of the Council of Europe Commissioner for Human Rights (Comm DH (2002) 7, 28 August 2002), Mr Alvaro Gil-Robles observed, in para 33:
“Whilst acknowledging the obligation of governments to protect their citizens against the threat of terrorism, the Commissioner is of the opinion that general appeals to an increased risk of terrorist activity post September 11th 2001 cannot, on their own, be sufficient to justify derogating from the Convention. Several European states long faced with recurring terrorist activity have not considered it necessary to derogate from Convention rights. Nor have any found it necessary to do so under the present circumstances. Detailed information pointing to a real and imminent danger to public safety in the United Kingdom will, therefore, have to be shown.”
The Committee of Privy Counsellors established pursuant to section 122 of the 2001 Act under the chairmanship of Lord Newton of Braintree, which reported on 18 December 2003 (Anti-terrorism, Crime and Security Act 2001 Review: Report, HC 100) attached significance to this point:
“189. The UK is the only country to have found it necessary to derogate from the European Convention on Human Rights. We found this puzzling, as it seems clear that other countries face considerable threats from terrorists within their borders.”
It noted that France, Italy and Germany had all been threatened, as well as the UK.
24. The appellants submitted that detailed information pointing to a real and imminent danger to public safety in the United Kingdom had not been shown. In making this submission they were able to rely on a series of reports by the Joint Committee on Human Rights …
26. The appellants have in my opinion raised an important and difficult question, as the continuing anxiety of the Joint Committee on Human Rights, the observations of the Commissioner for Human Rights and the warnings of the UN Human Rights Committee make clear. In the result, however, not without misgiving (fortified by reading the opinion of my noble and learned friend Lord Hoffmann), I would resolve this issue against the appellants, for three main reasons.
27. First, it is not shown that SIAC or the Court of Appeal misdirected themselves on this issue. SIAC considered a body of closed material, that is, secret material of a sensitive nature not shown to the parties. The Court of Appeal was not asked to read this material. The Attorney General expressly declined to ask the House to read it. From this I infer that while the closed material no doubt substantiates and strengthens the evidence in the public domain, it does not alter its essential character and effect. But this is in my view beside the point. It is not shown that SIAC misdirected itself in law on this issue, and the view which it accepted was one it could reach on the open evidence in the case.
28. My second reason is a legal one. The European Court decisions in Ireland v United Kingdom (1978) 2 EHRR 25; Brannigan and McBride v United Kingdom (1993) 17 EHRR 539; Aksoy v Turkey (1996) 23 EHRR 553 and Marshall v United Kingdom (10 July 2001, Appn. No. 41571/98) seem to me to be, with respect, clearly right. In each case the member state had actually experienced widespread loss of life caused by an armed body dedicated to destroying the territorial integrity of the state. To hold that the article 15 test was not satisfied in such circumstances, if a response beyond that provided by the ordinary course of law was required, would have been perverse. But these features were not, on the facts found, very clearly present in Lawless v Ireland (No 3) (1961) 1 EHRR 15. That was a relatively early decision of the European Court, but it has never to my knowledge been disavowed and the House is required by section 2(1) of the 1998 Act to take it into account. The decision may perhaps be explained as showing the breadth of the margin of appreciation accorded by the Court to national authorities. It may even have been influenced by the generous opportunity for release given to Mr Lawless and those in his position. If, however, it was open to the Irish Government in Lawless to conclude that there was a public emergency threatening the life of the Irish nation, the British Government could scarcely be faulted for reaching that conclusion in the much more dangerous situation which arose after 11 September.
29. Thirdly, I would accept that great weight should be given to the judgment of the Home Secretary, his colleagues and Parliament on this question, because they were called on to exercise a pre-eminently political judgment. It involved making a factual prediction of what various people around the world might or might not do, and when (if at all) they might do it, and what the consequences might be if they did. Any prediction about the future behaviour of human beings (as opposed to the phases of the moon or high water at London Bridge) is necessarily problematical. Reasonable and informed minds may differ, and a judgment is not shown to be wrong or unreasonable because that which is thought likely to happen does not happen. It would have been irresponsible not to err, if at all, on the side of safety. As will become apparent, I do not accept the full breadth of the Attorney General’s argument on what is generally called the deference owed by the courts to the political authorities. It is perhaps preferable to approach this question as one of demarcation of functions or what Liberty in its written case called “relative institutional competence”. The more purely political (in a broad or narrow sense) a question is, the more appropriate it will be for political resolution and the less likely it is to be an appropriate matter for judicial decision. The smaller, therefore, will be the potential role of the court. It is the function of political and not judicial bodies to resolve political questions. Conversely, the greater the legal content of any issue, the greater the potential role of the court, because under our constitution and subject to the sovereign power of Parliament it is the function of the courts and not of political bodies to resolve legal questions. The present question seems to me to be very much at the political end of the spectrum: see Secretary of State for the Home Department v Rehman  UKHL 47,  1 AC 153, para 62, per Lord Hoffmann. The appellants recognised this by acknowledging that the Home Secretary’s decision on the present question was less readily open to challenge than his decision (as they argued) on some other questions. This reflects the unintrusive approach of the European Court to such a question. I conclude that the appellants have shown no ground strong enough to warrant displacing the Secretary of State’s decision on this important threshold question.
30. Article 15 requires that any measures taken by a member state in derogation of its obligations under the Convention should not go beyond what is “strictly required by the exigencies of the situation.” Thus the Convention imposes a test of strict necessity or, in Convention terminology, proportionality. The appellants founded on the principle adopted by the Privy Council in de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing  1 AC 69, 80. In determining whether a limitation is arbitrary or excessive, the court must ask itself:
“whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.”
31. The appellants’ argument under this head can, I hope fairly, be summarised as involving the following steps:
(1) Part 4 of the 2001 Act reversed the effect of the decisions in Hardial Singh  1 WLR 704 and Chahal (1996) 23 EHRR 413 and was apt to address the problems of immigration control caused to the United Kingdom by article 5(1)(f) of the Convention read in the light of those decisions.
(2) The public emergency on which the United Kingdom relied to derogate from the Convention right to personal liberty was the threat to the security of the United Kingdom presented by Al-Qaeda terrorists and their supporters.
(3) While the threat to the security of the United Kingdom derived predominantly and most immediately from foreign nationals, some of whom could not be deported because they would face torture or inhuman or degrading treatment or punishment in their home countries and who could not be deported to any third country willing to receive them, the threat to the United Kingdom did not derive solely from such foreign nationals.
(4) Sections 21 and 23 did not rationally address the threat to the security of the United Kingdom presented by Al-Qaeda terrorists and their supporters because (a) it did not address the threat presented by UK nationals, (b) it permitted foreign nationals suspected of being Al-Qaeda terrorists or their supporters to pursue their activities abroad if there was any country to which they were able to go, and (c) the sections permitted the certification and detention of persons who were not suspected of presenting any threat to the security of the United Kingdom as Al-Qaeda terrorists or supporters.
(5) If the threat presented to the security of the United Kingdom by UK nationals suspected of being Al-Qaeda terrorists or their supporters could be addressed without infringing their right to personal liberty, it is not shown why similar measures could not adequately address the threat presented by foreign nationals.
(6) Since the right to personal liberty is among the most fundamental of the rights protected by the European Convention, any restriction of it must be closely scrutinised by the national court and such scrutiny involves no violation of democratic or constitutional principle.
(7) In the light of such scrutiny, neither the Derogation Order nor sections 21 and 23 of the 2001 Act can be justified.
32. It is unnecessary to linger on the first two steps of this argument, neither of which is controversial and both of which are clearly correct. The third step calls for closer examination. The evidence before SIAC was that the Home Secretary considered “that the serious threats to the nation emanated predominantly (albeit not exclusively) and more immediately from the category of foreign nationals.” In para 95 of its judgment SIAC held:
“But the evidence before us demonstrates beyond argument that the threat is not so confined. [i.e. is not confined to the alien section of the population]. There are many British nationals already identified – mostly in detention abroad – who fall within the definition of ‘suspected international terrorists,’ and it was clear from the submissions made to us that in the opinion of the [Home Secretary] there are others at liberty in the United Kingdom who could be similarly defined.”
This finding has not been challenged, and since SIAC is the responsible fact-finding tribunal it is unnecessary to examine the basis of it. There was however evidence before SIAC that “upwards of a thousand individuals from the UK are estimated on the basis of intelligence to have attended training camps in Afghanistan in the last five years,” that some British citizens are said to have planned to return from Afghanistan to the United Kingdom and that “The backgrounds of those detained show the high level of involvement of British citizens and those otherwise connected with the United Kingdom in the terrorist networks.” It seems plain that the threat to the United Kingdom did not derive solely from foreign nationals or from foreign nationals whom it was unlawful to deport …
33. The fourth step in the appellants’ argument is of obvious importance to it. It is plain that sections 21 and 23 of the 2001 Act do not address the threat presented by UK nationals since they do not provide for the certification and detention of UK nationals. It is beside the point that other sections of the 2001 Act and the 2000 Act do apply to UK nationals, since they are not the subject of derogation, are not the subject of complaint and apply equally to foreign nationals. Yet the threat from UK nationals, if quantitatively smaller, is not said to be qualitatively different from that from foreign nationals. It is also plain that sections 21 and 23 do permit a person certified and detained to leave the United Kingdom and go to any other country willing to receive him, as two of the appellants did when they left for Morocco and France respectively (see para 2 above). Such freedom to leave is wholly explicable in terms of immigration control: if the British authorities wish to deport a foreign national but cannot deport him to country “A” because of Chahal their purpose is as well served by his voluntary departure for country “B”. But allowing a suspected international terrorist to leave our shores and depart to another country, perhaps a country as close as France, there to pursue his criminal designs, is hard to reconcile with a belief in his capacity to inflict serious injury to the people and interests of this country. It seems clear from the language of section 21 of the 2001 Act, read with the definition of terrorism in section 1 of the 2000 Act, that section 21 is capable of covering those who have no link at all with Al-Qaeda (they might, for example, be members of the Basque separatist organisation ETA), or who, although supporting the general aims of Al-Qaeda, reject its cult of violence. The Attorney General conceded that sections 21 and 23 could not lawfully be invoked in the case of suspected international terrorists other than those thought to be connected with Al-Qaeda, and undertook that the procedure would not be used in such cases … The appellants were content to accept the Attorney General’s concession and undertaking. It is not however acceptable that interpretation and application of a statutory provision bearing on the liberty of the subject should be governed by implication, concession and undertaking.
35. The fifth step in the appellants’ argument permits of little elaboration. But it seems reasonable to assume that those suspected international terrorists who are UK nationals are not simply ignored by the authorities. When G, one of the appellants, was released from prison by SIAC on bail (G v Secretary of State for the Home Department (SC/2/2002, Bail Application SCB/10, 20 May 2004), it was on condition (among other things) that he wear an electronic monitoring tag at all times; that he remain at his premises at all times; that he telephone a named security company five times each day at specified times; that he permit the company to install monitoring equipment at his premises; that he limit entry to his premises to his family, his solicitor, his medical attendants and other approved persons; that he make no contact with any other person; that he have on his premises no computer equipment, mobile telephone or other electronic communications device; that he cancel the existing telephone link to his premises; and that he install a dedicated telephone link permitting contact only with the security company. The appellants suggested that conditions of this kind, strictly enforced, would effectively inhibit terrorist activity. It is hard to see why this would not be so.
36. In urging the fundamental importance of the right to personal freedom, as the sixth step in their proportionality argument, the appellants were able to draw on the long libertarian tradition of English law, dating back to chapter 39 of Magna Carta 1215, given effect in the ancient remedy of habeas corpus, declared in the Petition of Right 1628, upheld in a series of landmark decisions down the centuries and embodied in the substance and procedure of the law to our own day … In its treatment of article 5 of the European Convention, the European Court also has recognised the prime importance of personal freedom. In Kurt v Turkey (1998) 27 EHRR 373, para 122, it referred to “the fundamental importance of the guarantees contained in Article 5 for securing the right of individuals in a democracy to be free from arbitrary detention at the hands of the authorities” and to the need to interpret narrowly any exception to “a most basic guarantee of individual freedom”. In Garcia Alva v Germany (2001) 37 EHRR 335, para 39, it referred to “the dramatic impact of deprivation of liberty on the fundamental rights of the person concerned” …
37. While the Attorney General challenged and resisted the third, fourth and fifth steps in the appellants’ argument, he directed the weight of his submission to challenging the standard of judicial review for which the appellants contended in this sixth step. He submitted that as it was for Parliament and the executive to assess the threat facing the nation, so it was for those bodies and not the courts to judge the response necessary to protect the security of the public. These were matters of a political character calling for an exercise of political and not judicial judgment. Just as the European Court allowed a generous margin of appreciation to member states, recognising that they were better placed to understand and address local problems, so should national courts recognise, for the same reason, that matters of the kind in issue here fall within the discretionary area of judgment properly belonging to the democratic organs of the state. It was not for the courts to usurp authority properly belonging elsewhere … This is an important submission, properly made, and it calls for careful consideration.
38. Those conducting the business of democratic government have to make legislative choices which, notably in some fields, are very much a matter for them, particularly when (as is often the case) the interests of one individual or group have to be balanced against those of another individual or group or the interests of the community as a whole. The European Court has recognised this on many occasions … Where the conduct of government is threatened by serious terrorism, difficult choices have to be made and the terrorist dimension cannot be overlooked. This also the European Commission and Court have recognised …
39. While any decision made by a representative democratic body must of course command respect, the degree of respect will be conditioned by the nature of the decision. As the European Court observed in Fretté v France (2002) 38 EHRR 438, para 40,
“… the Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law. The scope of the margin of appreciation will vary according to the circumstances, the subject-matter and its background; in this respect, one of the relevant factors may be the existence or non-existence of common ground between the laws of Contracting States.”
A similar approach is found in domestic authority. In R v Director of Public Prosecutions, Ex p Kebilene  2 AC 326, 381, Lord Hope of Craighead said:
“It will be easier for such [a discretionary] area of judgment to be recognised where the Convention itself requires a balance to be struck, much less so where the right is stated in terms which are unqualified. It will be easier for it to be recognised where the issues involve questions of social or economic policy, much less so where the rights are of high constitutional importance or are of a kind where the courts are especially well placed to assess the need for protection.”
Another area in which the court was held to be qualified to make its own judgment is the requirement of a fair trial: R v A (No 2)  1 AC 45, para 36 …
40. The Convention regime for the international protection of human rights requires national authorities, including national courts, to exercise their authority to afford effective protection. The European Court made this clear in the early case of Handyside v United Kingdom (1976) 1 EHRR 737, para 48:
“The Court points out that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. The Convention leaves to each Contracting State, in the first place, the task of securing the rights and freedoms it enshrines.”
Thus the European Commissioner for Human Rights had authority for saying (Opinion 1/2002, para 9):
“It is furthermore, precisely because the Convention presupposes domestic controls in the form of a preventive parliamentary scrutiny and posterior judicial review that national authorities enjoy a large margin of appreciation in respect of derogations. This is, indeed, the essence of the principle of the subsidiarity of the protection of Convention rights.”
In Smith and Grady v United Kingdom (1999) 29 EHRR 493 the traditional Wednesbury approach to judicial review was held to afford inadequate protection. It is now recognised that “domestic courts must themselves form a judgment whether a Convention right has been breached” and that “the intensity of review is somewhat greater under the proportionality approach”: R (Daly) v Secretary of State for the Home Department  UKHL 26,  2 AC 532, paras 23, 27.
41. Even in a terrorist situation the Convention organs have not been willing to relax their residual supervisory role: Brogan v United Kingdom above, para 80; Fox, Campbell & Hartley v United Kingdom , above, paras 32–34. In Aksoy v Turkey (1996) 23 EHRR 553, para 76, the Court, clearly referring to national courts as well as the Convention organs, held:
“The Court would stress the importance of Article 5 in the Convention system: it enshrines a fundamental human right, namely the protection of the individual against arbitrary interference by the State with his or her right to liberty. Judicial control of interferences by the executive with the individual’s right to liberty is an essential feature of the guarantee embodied in Article 5(3), which is intended to minimise the risk of arbitrariness and to ensure the rule of law.”
In Korematsu v United States 584 F Supp 1406 (1984) para 21, Judge Patel observed that the Supreme Court’s earlier decision (323 US 214 (1944))
“stands as a caution that in times of distress the shield of military necessity and national security must not be used to protect governmental actions from close scrutiny and accountability.”
Simon Brown LJ in International Transport Roth GmbH v Secretary of State for the Home Department  QB 728 observed, in para 27, that “… the court’s role under the 1998 Act is as the guardian of human rights. It cannot abdicate this responsibility.” He went on to say, in para 54:
“But judges nowadays have no alternative but to apply the Human Rights Act 1998. Constitutional dangers exist no less in too little judicial activism as in too much. There are limits to the legitimacy of executive or legislative decision-making, just as there are to decision-making by the courts.”
42. It follows from this analysis that the appellants are in my opinion entitled to invite the courts to review, on proportionality grounds, the Derogation Order and the compatibility with the Convention of section 23 and the courts are not effectively precluded by any doctrine of deference from scrutinising the issues raised. It also follows that I do not accept the full breadth of the Attorney General’s submissions. I do not in particular accept the distinction which he drew between democratic institutions and the courts. It is of course true that the judges in this country are not elected and are not answerable to Parliament. It is also of course true, as pointed out in para 29 above, that Parliament, the executive and the courts have different functions. But the function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself. The Attorney General is fully entitled to insist on the proper limits of judicial authority, but he is wrong to stigmatise judicial decision-making as in some way undemocratic. It is particularly inappropriate in a case such as the present in which Parliament has expressly legislated in section 6 of the 1998 Act to render unlawful any act of a public authority, including a court, incompatible with a Convention right, has required courts (in section 2) to take account of relevant Strasbourg jurisprudence, has (in section 3) required courts, so far as possible, to give effect to Convention rights and has conferred a right of appeal on derogation issues. The effect is not, of course, to override the sovereign legislative authority of the Queen in Parliament, since if primary legislation is declared to be incompatible the validity of the legislation is unaffected (section 4(6)) and the remedy lies with the appropriate minister (section 10), who is answerable to Parliament. The 1998 Act gives the courts a very specific, wholly democratic, mandate …
43. The appellants’ proportionality challenge to the Order and section 23 is, in my opinion, sound, for all the reasons they gave and also for those given by the European Commissioner for Human Rights and the Newton Committee. The Attorney General could give no persuasive answer … [T]he choice of an immigration measure to address a security problem had the inevitable result of failing adequately to address that problem (by allowing non-UK suspected terrorists to leave the country with impunity and leaving British suspected terrorists at large) while imposing the severe penalty of indefinite detention on persons who, even if reasonably suspected of having links with Al-Qaeda, may harbour no hostile intentions towards the United Kingdom. The conclusion that the Order and section 23 are, in Convention terms, disproportionate is in my opinion irresistible.
44. Since, under section 7 of the Special Immigration Appeals Commission Act 1997 and section 30(5) of the 2001 Act, an appeal from SIAC lies only on a point of law, that is not the end of the matter. It is necessary to examine SIAC’s reasons for rejecting this part of the appellants’ challenge. They are given in para 51 of SIAC’s judgment, and are fourfold:
(1) that there is an advantage to the UK in the removal of a potential terrorist from circulation in the UK because he cannot operate actively in the UK whilst he is either not in the country or not at liberty;
(2) that the removal of potential terrorists from their UK communities disrupts the organisation of terrorist activities;
(3) that the detainee’s freedom to leave, far from showing that the measures are irrational, tends to show that they are to this extent properly tailored to the state of emergency; and
(4) that it is difficult to see how a power to detain a foreign national who had not been charged with a criminal offence and wished to leave the UK could readily be defended as tending to prevent him committing acts of terrorism aimed at the UK.
Assuming, as one must, that there is a public emergency threatening the life of the nation, measures which derogate from article 5 are permissible only to the extent strictly required by the exigencies of the situation, and it is for the derogating state to prove that that is so. The reasons given by SIAC do not warrant its conclusion. The first reason does not explain why the measures are directed only to foreign nationals. The second reason no doubt has some validity, but is subject to the same weakness. The third reason does not explain why a terrorist, if a serious threat to the UK, ceases to be so on the French side of the English Channel or elsewhere. The fourth reason is intelligible if the foreign national is not really thought to be a serious threat to the UK, but hard to understand if he is. I do not consider SIAC’s conclusion as one to which it could properly come … The European Court does not approach questions of proportionality as questions of pure fact: see, for example, Smith and Grady v United Kingdom, above. Nor should domestic courts do so. The greater intensity of review now required in determining questions of proportionality, and the duty of the courts to protect Convention rights, would in my view be emasculated if a judgment at first instance on such a question were conclusively to preclude any further review. So would excessive deference, in a field involving indefinite detention without charge or trial, to ministerial decision. In my opinion, SIAC erred in law and the Court of Appeal erred in failing to correct its error.
45. As part of their proportionality argument, the appellants attacked section 23 as discriminatory. They contended that, being discriminatory, the section could not be “strictly required” within the meaning of article 15 and so was disproportionate. The courts below found it convenient to address this discrimination issue separately, and I shall do the same.
46. The appellants complained that in providing for the detention of suspected international terrorists who were not UK nationals but not for the detention of suspected international terrorists who were UK nationals, section 23 unlawfully discriminated against them as non-UK nationals in breach of article 14 of the European Convention … It is well established that the obligation on the state not to discriminate applies only to rights which it is bound to protect under the Convention. The appellants claim that section 23 discriminates against them in their enjoyment of liberty under article 5. Article 14 is of obvious importance. In his influential work “An International Bill of the Rights of Man” (1945), p 115, Professor Hersch Lauterpacht wrote: “The claim to equality before the law is in a substantial sense the most fundamental of the rights of man.” …
47. The United Kingdom did not derogate from article 14 of the European Convention (or from article 26 of the ICCPR, which corresponds to it). The Attorney General did not submit that there had been an implied derogation, an argument advanced to SIAC but not to the Court of Appeal or the House.
48. The foreign nationality of the appellants does not preclude them from claiming the protection of their Convention rights. By article 1 of the Convention (which has not been expressly incorporated) the contracting states undertook to secure the listed Convention rights “to everyone within their jurisdiction”. That includes the appellants. The European Court has recognised the Convention rights of non-nationals … This accords with domestic authority. In Khawaja v Secretary of State for the Home Department  1 AC 74:
“Habeas corpus protection is often expressed as limited to ‘British subjects’. Is it really limited to British nationals? Suffice it to say that the case law has given an emphatic ‘no’ to the question. Every person within the jurisdiction enjoys the equal protection of our laws. There is no distinction between British nationals and others. He who is subject to English law is entitled to its protection. This principle has been in the law at least since Lord Mansfield freed ‘the black’ in Sommersett’s Case (1772) 20 St. Tr. 1. There is nothing here to encourage in the case of aliens or non-patrials the implication of words excluding the judicial review our law normally accords to those whose liberty is infringed.”
49. It was pointed out that nationality is not included as a forbidden ground of discrimination in article 14. The Strasbourg Court has however treated nationality as such. In Gaygusuz v Austria (1996) 23 EHRR 364, para 42, it said:
“However, very weighty reasons would have to be put forward before the Court could regard a difference of treatment based exclusively on the ground of nationality as compatible with the Convention.”
The Attorney General accepted that “or other status” would cover the appellants’ immigration status, so nothing turns on this point …
50. The first important issue between the parties was whether, in the present case, the Secretary of State had discriminated against the appellants on the ground of their nationality or immigration status. The Court gave guidance on the correct approach in the Belgian Linguistic Case (No 2) (1968) 1 EHRR 252, para 10 … The question is whether persons in an analogous or relevantly similar situation enjoy preferential treatment, without reasonable or objective justification for the distinction, and whether and to what extent differences in otherwise similar situations justify a different treatment in law … The parties were agreed that in domestic law, seeking to give effect to the Convention, the correct approach is to pose the questions formulated by Grosz, Beatson and Duffy, Human Rights: The 1998 Act and the European Convention (2000), para C14–08, substantially adopted by Brooke LJ in Wandsworth London Borough Council v Michalak  EWCA Civ 271 … and refined in the later cases of … R(S) v Chief Constable of the South Yorkshire Police  UKHL 39,  1 WLR 2196. As expressed in para 42 of this last case the questions are:
“(1) Do the facts fall within the ambit of one or more of the Convention rights?
(2) Was there a difference in treatment in respect of that right between the complainant and others put forward for comparison? (3) If so, was the difference in treatment on one or more of the proscribed grounds under article 14? (4) Were those others in an analogous situation? (5) Was the difference in treatment objectively justifiable in the sense that it had a legitimate aim and bore a reasonable relationship of proportionality to that aim?”
51. It is plain that the facts fall within the ambit of article 5. That is why the United Kingdom thought it necessary to derogate … The appellants were treated differently from both suspected international terrorists who were not UK nationals but could be removed and also from suspected international terrorists who were UK-nationals and could not be removed. There can be no doubt but that the difference of treatment was on grounds of nationality or immigration status (one of the proscribed grounds under article 14). The problem has been treated as an immigration problem.
52. The Attorney General submitted that the position of the appellants should be compared with that of non-UK nationals who represented a threat to the security of the UK but who could be removed to their own or to safe third countries … By contrast, the appellants’ chosen comparators were suspected international terrorists who were UK nationals …
53. Were suspected international terrorists who were UK nationals, the appellants’ chosen comparators, in a relevantly analogous situation to the appellants? The question … is whether the circumstances of X and Y are so similar as to call (in the mind of a rational and fair-minded person) for a positive justification for the less favourable treatment of Y in comparison with X. The Court of Appeal thought not because (per Lord Woolf, para 56) “the nationals have a right of abode in this jurisdiction but the aliens only have a right not to be removed”. This is, however, to accept the correctness of the Secretary of State’s choice of immigration control as a means to address the Al-Qaeda security problem, when the correctness of that choice is the issue to be resolved. In my opinion, the question demands an affirmative answer. Suspected international terrorists who are UK nationals are in a situation analogous with the appellants because, in the present context, they share the most relevant characteristics of the appellants.
54. Following the guidance given in the Belgian Linguistic Case (No 2) (see para 50 above) it is then necessary to assess the justification of the differential treatment of non-UK nationals “in relation to the aim and effects of the measure under consideration”. The undoubted aim of the relevant measure, section 23 of the 2001 Act, was to protect the UK against the risk of Al-Qaeda terrorism. As noted above (para 32) that risk was thought to be presented mainly by non-UK nationals but also and to a significant extent by UK nationals also. The effect of the measure was to permit the former to be deprived of their liberty but not the latter. The appellants were treated differently because of their nationality or immigration status. The comparison contended for by the Attorney General might be reasonable and justified in an immigration context, but cannot in my opinion be so in a security context, since the threat presented by suspected international terrorists did not depend on their nationality or immigration status. It is noteworthy that in Ireland v United Kingdom (1978) 2 EHRR 25 the European Court was considering legislative provisions which were, unlike section 23, neutral in their terms, in that they provided for internment of loyalist as well as republican terrorists. Even so, the Court was gravely exercised whether the application of the measures had been even handed as between the two groups of terrorists. It seems very unlikely that the measures could have been successfully defended had they only been capable of application to republican terrorists, unless it were shown that they alone presented a threat.
55. The Attorney General also made a more far-reaching submission. He relied on the old-established rule that a sovereign state may control the entry of aliens into its territory and their expulsion from it. He submitted that the Convention permits the differential treatment of aliens as compared with nationals. He also submitted that international law sanctions the differential treatment, including detention, of aliens in times of war or public emergency.
56. … It is indeed obvious that in an immigration context some differentiation must almost inevitably be made between nationals and non-nationals since the former have a right of abode and the latter do not … The Convention recognises in article 5(1)(f) that a non-national may be lawfully detained pending deportation, and that is a position in which a national could never find himself. The question is whether and to what extent states may differentiate outside the immigration context.
63. The materials I have cited are not legally binding on the United Kingdom. But there is no European or other authority to support the Attorney General’s submission. On the other hand, the Council of Europe is the body to which the states parties to the European Convention belong. The Attorney General in his written case accepted that article 14 of the European Convention and article 26 of the ICCPR are to the same effect. And the United Kingdom has ratified the Convention on the Elimination of Racial Discrimination. These materials are inimical to the submission that a state may lawfully discriminate against foreign nationals by detaining them but not nationals presenting the same threat in a time of public emergency.
66. SIAC concluded that section 23 was discriminatory and so in breach of article 14 of the Convention. It ruled, in paras 94–95 of its judgment:
“94. If there is to be an effective derogation from the right to liberty enshrined in Article 5 in respect of suspected international terrorists – and we can see powerful arguments in favour of such a derogation – the derogation ought rationally to extend to all irremovable suspected international terrorists. It would properly be confined to the alien section of the population only if, as [counsel for the appellants] contends, the threat stems exclusively or almost exclusively from that alien section.
95. But the evidence before us demonstrates beyond argument that the threat is not so confined. There are many British nationals already identified – mostly in detention abroad – who fall within the definition of ‘suspected international terrorists’, and it was clear from the submissions made to us that in the opinion of the [Secretary of State] there are others at liberty in the United Kingdom who could be similarly defined. In those circumstances we fail to see how the derogation can be regarded as other than discriminatory on the grounds of national origin.”
67. The Court of Appeal differed from SIAC on the discrimination issue:  QB 335. Lord Woolf CJ referred (para 45) to a tension between article 15 and article 14 of the European Convention. He held (para 49) that it would be “surprising indeed” if article 14 prevented the Secretary of State from restricting his power to detain to a smaller rather than a larger group. He held (para 56) that there was objective and reasonable justification for the differential treatment of the appellants. Brooke LJ (paras 102, 132) also found good objective reasons for the Secretary of State’s differentiation, although he also relied (paras 112–132) on rules of public international law. Chadwick LJ found (para 152) that since the Secretary of State had reached his judgment on what the exigencies of the situation required, his decision had to stand, and that “The decision to confine the measures to be taken to the detention of those who are subject to deportation, but who cannot (for the time being) be removed, is not a decision to discriminate against that class on the grounds of nationality” (para 153).
68. I must respectfully differ from this analysis. Article 15 requires any derogating measures to go no further than is strictly required by the exigencies of the situation and the prohibition of discrimination on grounds of nationality or immigration status has not been the subject of derogation. Article 14 remains in full force. Any discriminatory measure inevitably affects a smaller rather than a larger group, but cannot be justified on the ground that more people would be adversely affected if the measure were applied generally. What has to be justified is not the measure in issue but the difference in treatment between one person or group and another. What cannot be justified here is the decision to detain one group of suspected international terrorists, defined by nationality or immigration status, and not another. To do so was a violation of article 14. It was also a violation of article 26 of the ICCPR and so inconsistent with the United Kingdom’s other obligations under international law within the meaning of article 15 of the European Convention.
69. Brooke LJ also resolved the discrimination issue in favour of the Secretary of State in reliance on a public international law argument (see paras 112–132 of his judgment) which the Attorney General addressed to the Court of Appeal and repeated in the House. The first step in this argument was to assert the historic right of sovereign states over aliens entering or residing in their territory. Historically, this was the position … But a sovereign state may by international treaty restrict its absolute power over aliens within or seeking to enter its territory, and in recent years states have increasingly done so. The Attorney General submitted that international law sanctioned the detention of aliens in time of war or public emergency, and for this purpose drew attention to a number of instruments which it is necessary briefly to consider:
(1) The Geneva Convention Relative to the Protection of Civilian Persons in Time of War 1949. This instrument envisaged the internment of alien enemies in time of war or armed conflict. It is not suggested that the United Kingdom is, in a legal sense, at war or involved in an armed conflict, and it has no bearing on these appeals.
(2) The Geneva Convention Relating to the Status of Refugees 1951. The Attorney General submitted that article 9 of this Convention, permitting states to take provisional measures “in time of war or other grave and exceptional circumstances”, was apt to cover the detention of the appellants … It is, however, permissible under article 33(2) of the Refugee Convention to return to his home country a refugee at risk of torture or inhuman treatment in that country, a course which the European Convention precludes (see para 9 above). It cannot therefore avail the Secretary of State to show that the detention of the appellants is permissible under the Refugee Convention if it is not permissible under the European Convention because it is the latter which he is said to have violated.
(3) The Convention on the Status of Stateless Persons 1954. Article 9 of this Convention corresponds to article 9 of the Refugee Convention. The same comment applies to it.
(4) The ICCPR. The Attorney General pointed out, quite correctly, that article 4(1) of the ICCPR, in requiring that a measure introduced in derogation from Covenant obligations must not discriminate, does not include nationality, national origin or “other status” among the forbidden grounds of discrimination … It appears that this was deliberate: UN Doc E/CN. 4/SR. 330 (United Nations Economic and Social Council, Commission on Human Rights, Eighth Session, 313th meeting, 10 June 1952), pp 3–4. However, by article 2 of the ICCPR the states parties undertake to respect and ensure to all individuals within the territory the rights in the Covenant “without distinction of any kind, such as race …, national or social origin … or other status”. Similarly, article 26 guarantees equal protection against discrimination “on any ground such as race, … national or social origin … or other status”. This language is broad enough to embrace nationality and immigration status. It is open to states to derogate from articles 2 and 26 but the United Kingdom has not done so. If, therefore, as I have concluded, section 23 discriminates against the appellants on grounds of their nationality or immigration status, there is a breach of articles 2 and 26 of the ICCPR and so a breach of the UK’s “other obligations under international law” within the meaning of article 15 of the European Convention.
(5) The UN Declaration on the Human Rights of Individuals who are not Nationals of the Country in which They Live 1985. As is apparent from the wording of this Declaration, quoted in para 58 above, it sanctions differences in the treatment of nationals and aliens only so long as they are not “incompatible with the international legal obligations of the State, including those in the field of human rights”. Section 23 is incompatible with articles 5(1)(f) and 14 of the European Convention and articles 2, 9 and 26 of the ICCPR, all of which express international obligations of the United Kingdom.
(6) The EC Treaty. The Attorney General pointed out that article 39(3) of the EC Treaty is so drafted as not to encroach on member states’ general right to control the entry and activity of aliens, and the 13th recital to Council Directive 2000/43/EC expressly excludes differences based on nationality from the scope of the Directive. It cannot, however, avail the Secretary of State that the United Kingdom is not in breach of the EC Treaty and this Directive if it is in breach of the European Convention.
(7) The European Convention. It was pointed out, quite correctly, that article 16 sanctions the imposition by member states of restrictions on the political activity of aliens. To that extent, as in the context of immigration, aliens are distinguishable from citizens. But there is nothing in the Convention to warrant the discriminatory detention of aliens against whom action is not being taken with a view to deportation or extradition.
(8) Reference was made to three United States authorities. In the first of these, Shaughnessy v United States, ex rel Mezei 345 US 206 (1953), the applicant was held not to be entitled to the protection of the due process clause because, although he had previously lived in the United States for some twenty five years before a nineteen month break, he was treated on his return as not having entered the country. This is not a decision which would be followed by the European Court, which in D v United Kingdom (1997) 24 EHRR 423, para 48, showed some impatience with what in Lynch v Cannatella 810 F 2d 1363 (1987), para 27, was called “the entry fiction” … In Fernandez v Wilkinson 505 F Supp 787 (1980) the alien had again not been admitted to the United States, but despite the “time-honoured legal fiction” of non-entry Judge Rogers, sitting in the US District Court for Kansas, drew on customary international law to hold that the alien could not be detained indefinitely when there was no prospect of removing him. The alien in Zadvydas v Davis 533 US 678 (2001) had been admitted to the United States and a majority of the Supreme Court held that he could not be detained indefinitely if there was no prospect of removing him. The court did not have to consider the position of aliens judged to present a terrorist risk (p 696) but might well have sanctioned indefinite detention in such circumstances given the heightened deference shown by US courts to the judgments of the political branches with respect to national security … It would however seem that such a ruling would be contrary to the American Convention on Human Rights 1969. In its Report on Terrorism and Human Rights (22 October 2002), the Inter-American Commission on Human Rights stated:
“350 … Even in respect of rights that may be the subject of limitation or derogation, states must comply strictly with the conditions regulating the permissibility of such limitations or derogations, which in turn are based upon the fundamental principles of necessity, proportionality and non-discrimination.
351 Also non-derogable under international human rights law and international humanitarian law is the requirement that states fulfil their obligations without discrimination of any kind, including discrimination based upon … national or social origin.”
US authority does not provide evidence of general international practice.
70. Neither singly nor cumulatively do these materials, in my opinion, support a conclusion other than that which I have expressed.
71. Having regard to the conclusions I have already reached, I think it unnecessary to address detailed arguments based on alleged breaches of articles 3 and 6 of the European Convention. I express no opinion on those questions, nor on a question relating to the admissibility of evidence obtained by torture which was not argued before SIAC or the Court of Appeal in the part of these proceedings which is now the subject of appeal.
73. I would allow the appeals. There will be a quashing order in respect of the Human Rights Act 1998 (Designated Derogation) Order 2001. There will also be a declaration under section 4 of the Human Rights Act 1998 that section 23 of the Anti-terrorism, Crime and Security Act 2001 is incompatible with articles 5 and 14 of the European Convention insofar as it is disproportionate and permits detention of suspected international terrorists in a way that discriminates on the ground of nationality or immigration status. The Secretary of State must pay the appellants’ costs in the House and below.
[emphasis in original]
In 2006, in the Ahmad and Aswat case, the England and Wales High Court of Justice held:
Introductory: Background Facts
1. This is another case about extradition to the United States of America pursuant to provisions contained in the Extradition Act 2003 (“the 2003 Act”) …
4. Mr Aswat is wanted to stand trial in the United States District Court for the Southern District of New York … The essence of the allegations is that he became involved in a conspiracy with Abu Hamza and others to establish a jihad training camp in Bly, Oregon …
The 2003 Act
5. In order to understand the nature of the extradition process, its application on the facts of this case, and the basis of the appeals, it is convenient first to introduce the relevant provisions of the 2003 Act.
7. Part II deals with “category 2” territories … A principal category 2 territory is the United States … S.70 requires the Secretary of State to issue a certificate “if he receives a valid request for the extradition to a category 2 territory of a person who is in the United Kingdom”. In this case there is no dispute as to the statutory validity of the request that was made in respect of either claimant. Upon the certificate’s issue the Secretary of State must (s.70(9)) send the documents to the appropriate judge … The judge may then (s.71(2)) “issue a warrant for the arrest of the person whose extradition is requested” if certain conditions are fulfilled …
8. As for the extradition hearing itself … the judge must next proceed under s.79 which is cross-headed “Bars to extradition”. There are four such bars, of which the second (s.79(1)(b)) is “extraneous considerations” and is engaged by one of Mr Fitzgerald’s [appearing as counsel for the appellants] submissions. “Extraneous considerations” are dealt with in s.81, which provides in part:
“A person’s extradition to a category 2 territory is barred by reason of extraneous considerations if (and only if) it appears that –
(b) if extradited he might be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality, gender, sexual orientation or political opinions.”
9. … S.87 provides:
“(1) If the judge is required to proceed under this section (by virtue of section 84…) he must decide whether the person’s extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998.
(2) If the judge decides the question in subsection (1) in the negative he must order the person’s discharge.
(3) If the judge decides that question in the affirmative he must send the case to the Secretary of State for his decision whether the person is to be extradited.”
Military Order No 1
20. On 13 November 2001, thus almost exactly two months after the atrocities of 11 September 2001, the President of the United States issued Military Order No 1 on the “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism” …
Sec. 2. Definition and Policy.
(a) The term ‘individual subject to this order’ shall mean any individual who is not a United States citizen with respect to whom I determine from time to time in writing that:
(i) there is reason to believe that such individual, at the relevant times,
(ii) has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefor, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy …
Sec. 3. Detention Authority of the Secretary of Defense. Any individual subject to this order shall be –
(a) detained at an appropriate location designated by the Secretary of Defense outside or within the United States;
Sec. 4. Authority of the Secretary of Defense Regarding Trials of Individuals Subject to this Order.
(a) Any individual subject to this order shall, when tried, be tried by military commission for any and all offenses triable by military commission that such individual is alleged to have committed, and may be punished in accordance with the penalties provided under applicable law, including life imprisonment or death.
21. The reference in Section 3(a) to “an appropriate location” for the detention of persons subject to the order includes, in the events which have happened, the detention facility at Guantanamo Bay. A major theme of these appeals consists in the appellants’ contention that if they are extradited there is a real prospect that they will be made subject to Military Order No 1 by a determination of the President under Section 2(a) and thereafter detained indefinitely, it may be at Guantanamo Bay, pursuant to Section 3, and/or put on trial before a military commission pursuant to Section 4. Were that to happen they would suffer violations of their rights under Article 5 of the European Convention on Human Rights (“ECHR”) (no detention save on strict conditions) and Article 6 (the right to a fair trial before an impartial and independent tribunal).
22. The district judge found that given the allegations against the appellants it would be open to the President of the United States to designate them as “enemy combatants”, which in this context is a shorthand for the application of the criterion set out in Section 2(a)(1)(ii) of Military Order No 1. The judge also found that their exposure to Military Order No 1, if that were to happen, would involve violations of their Convention rights …
23. None of these conclusions is challenged before us by the US government, nor, as I understand it, were they controversial in the court below … Each appeal accordingly proceeds on the premise that if subjected to Military Order No 1 following his extradition, the appellant would suffer violations of his Convention rights, notably those guaranteed by Articles 5 (no detention without trial) and 6 (fair trial), and it may be Article 3 (prohibition of inhuman and degrading treatment and torture).
24. Yet in each case the judge found that the appellant’s ECHR rights would not in fact be violated upon his extradition. He did so principally (there were other points, as I shall show) because of the effect, as he found it to be, of Diplomatic Notes issued out of the United States’ Embassy in London.
The Diplomatic Notes
25. In Mr Ahmad’s case Diplomatic Note No 25 was issued on 23 March 2005 … In Mr Aswat’s case Diplomatic Note No 114 was issued on 20 December 2005. In both cases the Notes were before the district judge and considered by him. The terms of Diplomatic Note No 25, which was the first in time, are as follows:
“The Embassy of the United States of America at London, England, presents its compliments to Her Majesty’s Principal Secretary of State for Foreign and Commonwealth Affairs and has the honor to refer to Note No. 100 dated November 15, 2004, requesting the extradition of Babar Ahmad to the United States of America…
Pursuant to Article IV of the Extradition Treaty Between the Government of the United States and the Government of the United Kingdom of Great Britain and Northern Ireland, the Government of the United States hereby assures the Government of the United Kingdom that the United States will neither seek the death penalty against, nor will the death penalty be carried out, against Babar Ahmad upon his extradition to the United States.
The Government of the United States further assures the Government of the United Kingdom that upon extradition to the United States, Babar Ahmad will be prosecuted before a Federal Court in accordance with the full panoply of rights and protections that would otherwise be provided to a defendant facing similar charges.
Pursuant to his extradition, Babar Ahmad will not be prosecuted before a military commission, as specified in the President’s Military Order of November 13, 2001; nor will he be criminally prosecuted in any tribunal or court other than a United States Federal Court; nor will he be treated or designated as an enemy combatant…”
The Note in Mr Aswat’s case did not refer to the death penalty. The offences for which extradition was sought are not so punishable.
26. In his decision of 17 May 2005 in Mr Ahmad’s case the district judge said this:
“I have had to consider the status of that Diplomatic Note. I am satisfied whilst it does not provide any personal protection to this defendant; the Diplomatic Note does bind the American Government, which includes the President of the United States. As such I am satisfied that the risk of an order being made under Military Order No. 1 is almost entirely removed. Although I have received evidence of extraordinary rendition to another State, the Government denies that such action takes place. If such steps do take place I am satisfied that in this case, in the light of the Undertaking not to invoke Military Order No. 1, the risk of extraordinary rendition is negligible.”
The judge’s conclusions in Mr Aswat’s case were to the same effect.
The Course of these Proceedings: The Appeal Points Outlined
28. There are four points common to both appeals, which I may describe in barest outline as follows, but must of course explain more fully:
1) There is a substantial risk that if extradited each appellant would face detention and/or trial by military commission under Military Order No 1, and thus suffer violations of his Convention rights.
2) There is a like risk that each appellant would be subjected to what is called “extraordinary rendition”, and thus, again, suffer violations of his Convention rights.
3) There is a like risk that each appellant, even if he were remanded for trial by the ordinary federal civilian courts, would be subjected to what are called “special administrative measures” (“SAMs”) which would also involve violations of his Convention rights. In addition there would on this ground be a bar to extradition by force of s.81(b) of the 2003 Act.
4) Any trial, albeit in the ordinary federal civilian courts, would involve evidence obtained by torture in violation of the appellants’ rights under ECHR Article 6.
Subjection to Military Order No 1 (Point (1) above)
51. On this part of the case the court is invited to hold that the United States would not honour the Diplomatic Notes given in each case, or at least that there is a substantial risk that they would not.
54. The appellants’ case has been put in various ways but may fairly be summarised in three propositions:
i) The Diplomatic Notes do not bind the President (and would not bind any future President) and are “ultra vires”, or are legally unacceptable undertakings not to apply the general law of the requesting state.
ii) The Diplomatic Notes are drafted in such a way that it would be possible for the United States authorities to apply Military Order No 1 to the appellants after their return, and yet claim that there was no breach of the undertakings in the Notes.
iii) As a matter of fact, the Notes are not to be relied on.
(i) Legal Status of the Diplomatic Notes
55. A good deal of evidence has been deployed by the appellants to support this part of their case … Now, there is plainly a difference between the question whether the Notes are in some sense legally binding on the United States authorities including the President, and the question whether in fact they would be honoured. The first of these questions, being one of law, cannot depend upon any evidence unless the issue is whether the Notes are binding by force of the domestic law of the United States; in which case evidence about that law’s effect would be admissible, because of the common law rule that foreign law is a matter of fact. Evidence is, of course, also receivable as to the conditions of international practice in relation to the giving of assurances such as are contained in the Notes.
56. However as I understand it there is no issue of domestic American law. The United States government does not rely on any rule of domestic law giving binding or enforceable effect to the assurances set out in the Notes. The real question is whether in all the circumstances, against the background of relevant international law and practice, this court should accept the Notes as being in fact effective to refute, for the purposes of the 2003 Act, the claims of potential violation of Convention rights and associated bars to extradition.
57. There is, however, more to say at this stage about the law. First, the proposition that the Notes are in some sense ultra vires is in my judgment misplaced. There is no suggestion that they were issued in defiance of some binding rule of United States law with whose application they are inconsistent. That might have been the case if Military Order No 1 (which, I accept, is part of the corpus of United States law) required the President to designate any foreign national to whom the Section 2(a) criteria applied. But it does not; the President has a discretion so to designate. There is therefore no inconsistency between the terms of the Notes and the terms of the Order. The force of the point is illustrated by an observation made by my Lord Walker J in the course of the argument concerning Mr Ujaama: on Mr Fitzgerald’s own case the fact, demonstrated by the plea agreement, that the Americans were prepared to forego the subjection of Mr Ujaama to military custody (in his case, as he is a United States national, at the North Carolina brig) shows that they do not regard such a course of action as mandatory or inevitable in every case where it might, on the facts, be put into effect.
58. Nor is it, I think, suggested that this ultra vires argument is supported by any notion that the Notes were in some sense unauthorised by the President or the United States government. Nor could it be. The Notes, as I have said, were issued by the United States Embassy in London. The Ambassador “is the mouthpiece of the Head of his home State and its Foreign Minister, for communications to be made to the State to which he is accredited” (Oppenheim’s International Law, Ninth Edition, Vol 1, paragraph 483). Mr Keith in his skeleton argument in Mr Aswat’s case at paragraph 2.18, citing authority of the International Court of Justice (Advisory Opinion as to the Customs Arrangements between Germany and Austria, 5 September 1931: Series A/B 41, p.47), correctly submits that international law recognises the use of Diplomatic Notes as a means of recording binding engagements between States. In the eye of international law such a Note is regarded as binding on the State that issues it. This, and this only, is the sense in which the Notes are indeed “binding”.
59. Next, Mr Fitzgerald would have us disregard the Notes, or at least treat them with considerable circumspection, because of what he says is the effect of the decision of their Lordships’ House in Armah v Government of Ghana and Anor  AC 192 …
60. Mr Fitzgerald principally relies on what was said by Lord Upjohn, but I may first note these observations of Lord Reid at 235G-236B:
“[I]n general it appears to me to be very undesirable that a foreign government should be encouraged to offer not to apply the ordinary law of its country to one of its own subjects if he is returned to that country. There may not be the same objection to the foreign government stating that it does not intend to take certain executive action with regard to the accused person and it might be proper to accept an undertaking on the lines of section 3(2) of the Extradition Act, 1870. But any undertaking or statement of intention is liable to create misunderstanding and perhaps acute difficulties in the event of a change of circumstances.”
The material passage from Lord Upjohn’s speech is at 262G–263E:
“[T]he Divisional Court accepted the undertakings of the Government of Ghana (1) that if tried and acquitted the appellant would not be taken into protective custody and would be free to leave Ghana; (2) that the appellant would be tried under the Criminal Procedure Code and not under the Corrupt Practices (Prevention) Act, 1964. The bona fides of the Government of Ghana and of its Attorney-General are not for one moment in doubt, but I think it is wrong in principle to permit such undertakings to be given or to take them into account. The appellant can surely come to the superior court (where alone, of course, section 10 arises) and say:
‘My liberty is at stake, I am a British subject, judge of the laws of the country to which my return is sought as they stand. It is most unjust to me that to attain their ends the Government should unilaterally be permitted to say that I alone of all the inhabitants am to be freed from those laws which I submit would make it oppressive and unjust to return me.’
So I think that the matter should be judged upon the laws as they stand and it then becomes a matter for the exercise of the discretion of the court under section 10 to consider the relevance of any laws to which the applicant may draw attention and their weight in the balance against other considerations such as the seriousness of the alleged offence, the strength or thinness of the case against the fugitive and all other relevant circumstances. In addition, it was readily conceded that the word ‘undertaking’ is a misnomer; it is no more than an expression of intention. Speaking generally, and not with any special reference to the Government of Ghana, there may be a change of government who may not feel bound by the acts of their predecessor. There may be a genuine difference of opinion as to the proper interpretation of the undertakings. Finally, it might in some circumstances be the duty of a government to depart from its expressed intention in the discharge of its duty in the good governance of the country and its inhabitants as a whole.”
61. In light of this authority Mr Fitzgerald submits that it would be wrong in principle for the court to rely on the Diplomatic Notes as a basis for concluding that Military Order No 1 would not be applied to the appellants. I do not think this is right. First, it is in my view significant that the “undertaking” in Armah was given by counsel in court. No doubt it was given on instructions, but it cannot have carried the weight or authority of a formal Diplomatic Note issued out of the State’s Embassy. As I have shown, State to State assurances, taking the form of such Notes, possess a recognised status in public international law. State to State assurances are commonly given in extradition matters, for example to demonstrate the requesting State’s loyalty to the specialty rule. Moreover such assurances are specifically contemplated on the face of Article IV of the 1972 UK-USA Extradition Treaty (which I have set out) in relation to the death penalty. The Note in Mr Ahmad’s case contained, in terms, Article IV assurances.
62. Secondly, an important theme of the reasoning in Armah consists in their Lordships’ concern that a foreign State might in effect offer to suspend its ordinary law as the price of obtaining a fugitive’s return. No such concern can arise in this case. On the contrary, the Diplomatic Notes contain assurances that the ordinary law – prosecution before the civilian Federal Court “with the full panoply of rights and protections” – will be applied. The position might well be different if the President were obliged by the terms of Military Order No 1 to designate any persons falling within the Section 2(a) criteria. But as I have already said the President has a discretion to designate; and where he does so, he must determine (Section 2(a)(2)) that “it is in the interest of the United States that such individual be subject to this order”. On any view these are special or exceptional measures. The argument which Lord Upjohn puts in the mouth of an appellant to the English court has no place here on the facts. Armah was distinguished both in Launder (No 2)  QB 998 (see per Simon Brown LJ as he then was at 1006G) and in Lodhi (No 1)  EWHC Admin 178 (see per Brooke LJ giving the judgment of the court at paragraph 88) on the ground that in contrast to Armah there was no question of the relevant undertaking being to do other than apply the ordinary law of the requesting State.
(ii) Scope of the Diplomatic Notes
64. This part of the argument depends on the words “[p]ursuant to his extradition” in each of the diplomatic notes. The point is crisply articulated in Mr Fitzgerald’s skeleton argument for Mr Ahmad as follows:
“[T]he Note only provides that ‘pursuant to extradition’ the Appellant would be [not] treated as an enemy combatant. No doubt this wording was carefully chosen. It would be open to the US prosecuting authorities to discontinue the criminal proceedings against the Appellant and then to designate him as an enemy combatant. In these circumstances it would be open to the US to claim that the detention was not ‘pursuant to extradition’ because that process had come to an end with the discontinuance of the criminal proceedings alleged in the request.”
65. The implicit suggestion appears to be (“No doubt this wording was carefully chosen”) that the possibility of such action being taken was in the minds of the American authorities at the time when the Diplomatic Notes were drafted and issued. If so, it is a very serious allegation of bad faith. It amounts to an accusation that the Notes are nothing but a smoke screen to conceal the United States’ true intentions. It is little wonder that Mr Fitzgerald did not pursue the suggestion explicitly. I shall have more to say about the Notes’ reliability under the next head – (iii) – but I should make it clear at once that there is not a sliver of justification, in any of the evidence we have seen, for so grave a charge.
66. I should however acknowledge this assertion made in Mr Fitzgerald’s skeleton argument in Mr Aswat’s case (paragraph 54):
“It is important to recognise that the Appellant’s primary case does not require the Court to determine that the US Government would or might act in bad faith by knowingly disregarding an undertaking binding as a matter of international law. His case is that the US may decide to designate him as an enemy combatant, and try him in a military commission, whilst maintaining the position that such treatment falls outside the terms of Diplomatic Note 114, which is not legally binding in any event.”
67. In argument Mr Fitzgerald submitted that the risk of such a decision would continue even if Military Order No 1 were amended or replaced. In so far as the case sought to be made is not one of bad faith, but merely a suggestion that if the appellants are extradited they may hereafter encounter the fate described because new information becomes available, then as it seems to me it is contradicted by Article XII of the 1972 Treaty which I have set out. It was submitted that Article XII, on its plain terms, governs only detention in the “territory of the requested party” and therefore does not cover detention in Guantanamo or elsewhere in the world. In order to send the detainee to such a destination, however, it would be necessary first to detain the person in question within the territory of the United States. Another submission was that information presented to the President after the extradition as to the risk posed by the Appellants in the view of the FBI or CIA would necessitate the President’s consideration of the application of Military Order No 1 to the Appellants. However by Article XII further action can be taken only in relation to crimes or “matters arising” after the extradition. Absent an accusation of bad faith it is plainly to be presumed that the United States will be loyal to their Treaty obligations. It is to be noted that a Treaty entered into by the United States becomes part of its domestic law upon its coming into effect, without more: see Article VI of the US Constitution. If of course either appellant were accused of an entirely fresh crime or other matter said to have been committed after the extradition, different considerations might arise (see Article XII(2)); but such a contingency cannot form the genesis of any complaint in these proceedings.
(iii) The Diplomatic Notes’ Reliability
68. But Mr Fitzgerald does not merely submit that the United States authorities might expose the appellants to the rigours of Military Order No 1 while asserting, by reference to the language of the Diplomatic Notes, that the assurances there given are not violated. He submits that the United States might simply breach the assurances in any event. The appellants’ evidence (principally the affidavits of Mr Loflin and Mr Stafford Smith) is presented in such a way as to intertwine this argument with (i) above (relating to the Notes’ legal status). But in my judgment we must address fair and square the submission of fact that the Notes would not be honoured. The issue is closely allied to that which arises on Mr Fitzgerald’s second principal contention, namely that both appellants face a substantial risk of being subjected to what is called “extraordinary rendition”, not least given the district judge’s finding that “in the light of the Undertaking not to invoke Military Order No. 1, the risk of extraordinary rendition is negligible”. However it is convenient to deal with that separately because of the structure of the arguments as they were presented before us.
72. … it is asserted that given his past approach to the duties of his office the President would feel free to disregard the assurances in the Notes, “particularly in the light of any new information or evidence that was provided to him by the FBI or the security services as to the alleged risk posed by [either] Appellant” (Mr Ahmad skeleton, paragraph 3.17).
73. It is also said (but it is really part of the same point) that the President has demonstrated his commitment to the use of military commissions …
74. In short we are asked, as I have already said, to hold that the United States would not honour the Diplomatic Notes given in each case, or at least that there is a substantial risk that they would not. How is this court to provide a conscientious response to such an argument? The starting point, I think, is the statement of Kennedy LJ in Serbeh v Governor of HM Prison Brixton (31 October 2002, CO/2853/2002) at paragraph 40:
“[T]here is (still) a fundamental assumption that the requesting state is acting in good faith.”
The assumption, of course, may be displaced by evidence. We must consider whether it is displaced here.
75. I have already referred to Mr Keith’s submission that the assurances in the Notes were given by a mature democracy. So much goes without saying. But the United States is also a State with which the United Kingdom has entered into five substantial treaties on extradition over a period of more than 150 years. Over this continued and uninterrupted history of extradition relations there is no instance of any assurance given by the United States, as the requesting State in an extradition case, having been dishonoured. In Bermingham & ors  EWHC 200,  3 AER.239 and Welsh and Thrasher  EWHC 156,  3 AER.204, decided in this court, Ouseley J and I were much concerned with a similar issue – or perhaps a particular application of the same issue – being called on in effect to decide whether the United States authorities could be relied on to abide by the specialty rule in relation to the prospective extradition of the appellants in those cases. Undertakings had been given on the point. In Thrasher Ouseley J said (paragraph 35):
“First, if there had been a routine disregard of the specialty rule, I would have expected that over the decades of extradition to the US from the UK, and in particular from those countries with which the US enjoys a land frontier, the UK Courts and the Courts of other sending states would have refused extradition in decisions which would be available to us. The 1972 and 2003 Treaties would not have been agreed in the terms on which they were agreed.”
In Bermingham I said (paragraph 142):
“In the present case I consider that the undertaking confirms the position which the United States courts would anyway adopt. They will be satisfied, not least by the terms of this court’s judgment, that the defendants’ extradition is ordered on the precise basis that the accusation they will face at trial will be limited to, and travel no wider than, the case which is essentially formulated in paragraphs 10 and 23 of the Texas indictment and reflected in the charge drafted for the proceedings at Bow Street. And the American courts will be loyal to this expectation: not merely because in general they respect the specialty rule, but because by their own express jurisprudence… it is “essential to determine… whether the surrendering state would regard the prosecution as a breach”… This test is meticulously applied. It means, in short, that the American courts will give effect to the views of the Secretary of State and of this court (as to which there will be no room for doubt) of the requirements of s.95 of the 2003 Act.”
76. I see no reason to doubt that the American authorities would likewise give effect to the views of this court as to the critical importance of the integrity of the Diplomatic Notes. Indeed the case may perhaps be said to be a fortiori: the Notes have the special status of having been issued out of the Embassy. The American authorities will appreciate, not least from the terms of the judgments in this case, that their request for the appellants’ extradition to the United States has been acceded to expressly on the faith of the Notes, read and interpreted as this court reads and interprets them. Acts of the US executive such as have attracted the kind of criticisms described and levelled by Mr Stafford Smith and Mr Loflin, being, however, acts touching only the internal affairs of the United States, cannot in my judgment begin to constitute a premise from which this court should conclude that the Diplomatic Notes will not be fully honoured.
77. This view is lent some support by the circumstances of a case to which both Mr Keith and Mr Hardy referred. Mr Al-Moayad, a Yemeni national, was arrested in Frankfurt on 10 January 2003, a warrant having been issued on 5 January 2003 by the United States District Court for the Eastern District of New York. Mr Al-Moayad was wanted for having, among other things, supplied money and equipment to terrorist groups including Al-Qaida. The United States requested his extradition and there were extradition proceedings before the Higher Regional Court at Frankfurt. What was referred to as a “verbal note” was issued by the American Embassy providing an assurance that if he were returned Mr Al-Moayad would not be prosecuted before a military tribunal pursuant to Military Order No 1. The Frankfurt court allowed the extradition (I use this expression since, unsurprisingly of course, there is no exact fit between the procedural terminology here and in the German courts). Mr Al-Moayad brought a constitutional complaint before the Federal Constitutional Court. We have an English language text of the judgment downloaded from the internet, bearing the serial number 2 BvR 1506/03. Various points were taken with which we need not be concerned. The relevant finding is at paragraph 76:
“… [D]ecisive consideration must be given to the fact that the United States precluded the possible application of the Presidential Military Order of 13 November 2001 by their assurance of 22 May 2003. Thus, the United States have entered into the obligation, which is binding under international law, neither to bring the complainant before an extraordinary court after his extradition nor to apply the procedural law that is provided in the Order of 13 November 2001 nor to take the complainant to an internment camp. There are no indications to suggest that the United States would, upon the complainant’s extradition, not comply with the assurance given.”
78. So Mr Al-Moayad was extradited to the United States. There is a postscript. We have a copy of a piece in the New York Times for 29 July 2005. It shows that Mr Al- Moayad was, indeed, not subjected to Military Order No 1. He was tried before a federal court in Brooklyn. After a five week trial he was convicted of conspiracy to support Al-Qaida and other offences and sentenced to the maximum penalty of 75 years imprisonment. Condign punishment: but no subjection to Military Order No 1.
80. On this part of the case I conclude for all the reasons I have given that the district judge was right to place confidence in the Diplomatic Notes.
101. For all the reasons I have given I would dismiss these appeals. Taking stock of the whole case, I would make these final observations. There are I think two factors which constitute important, and justified, obstacles to the appellants’ claims. They are obstacles which might arise in other cases. The first is the starting-point: Kennedy LJ’s observation in Serbeh that “there is (still) a fundamental assumption that the requesting state is acting in good faith”. This is a premise of effective relations between sovereign States. As I have said the assumption may be contradicted by evidence; and it is the court’s plain duty to consider such evidence (where it is presented) on a statutory appeal under the 2003 Act. But where the requesting State is one in which the United Kingdom has for many years reposed the confidence not only of general good relations, but also of successive bilateral treaties consistently honoured, the evidence required to displace good faith must possess special force. The second obstacle is linked to the first. It is a general rule of the common law that the graver the allegation, the stronger must be the evidence to prove it. In this case it has been submitted that the United States will violate, at least may violate, its undertakings given to the United Kingdom. That would require proof of a quality entirely lacking here.
102. This court acts on the faith that the United States will be true to the spirit and the letter of the Diplomatic Notes and the obligations of the 1972 Treaty. It goes without saying that they will be true to the US Constitution. The terms of this judgment express the legal expectations and understanding of the United Kingdom court. I apprehend that these will be well fulfilled and honoured when the appellants are extradited.
[emphasis in original]
In 2007, in the Al-Jedda case, 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 ECHR”,
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 of 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 ECHR”. 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.
4. What is now the third issue can be more simply expressed: 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 appellant would wish to contend that he has a good claim even if Iraqi law is applicable, but this question was not litigated below, was not agreed as an issue, has not been the subject of expert evidence of Iraqi law and has not been considered by the House.
The first issue
5. It was common ground between the parties that the governing principle is that expressed by the International Law Commission 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 [International Law Commission’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, p4):
“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.
The second issue
26. As already indicated, this issue turns on the relationship between article 5(1) of the European Convention and article 103 of the UN Charter. The central questions to be resolved are whether, on the facts of this case, the UK became subject to an obligation (within the meaning of article 103) to detain the appellant and, if so, whether and to what extent such obligation displaced or qualified the appellant’s rights under article 5(1).
27. Article 5(1) protects one of the rights and freedoms which state parties to the European Convention have bound themselves to secure to everyone within their jurisdiction. It has been recognised as a right of paramount importance. It is one to which, by virtue of the Human Rights Act 1998, UK courts must give effect. Its terms are familiar: “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: …” There follows a list of situations in which a person may, in accordance with a procedure prescribed by law, be deprived of his liberty. It is unnecessary to recite the details of these situations, since none of them is said to apply to the appellant. In the absence of some exonerating condition, the detention of the appellant would plainly infringe his right under article 5(1).
28. The Charter of the United Nations was signed in June 1945 as the Second World War, with its horrific consequences in many parts of the world, was drawing to a close. It is necessary to review its terms in a little detail. In the preamble the parties expressed their determination to save succeeding generations from the scourge of war and to reaffirm faith in fundamental human rights. Its objects, expressed in article 1, were (among others) to maintain international peace and security and, to that end, to take effective collective measures for the prevention and removal of threats to the peace; and to promote and encourage respect for human rights. Member states bound themselves (article 2) to fulfil in good faith the obligations assumed by them in accordance with the Charter, and to give the UN every assistance in any action it might take in accordance with the Charter. By article 24 the Security Council has primary responsibility for the maintenance of peace and security and acts on behalf of member states in discharging that responsibility. Member states agree (article 25) to accept and carry out the decisions of the Security Council in accordance with the Charter.
29. Chapter VII governs “Action with respect to threats to the peace, breaches of the peace, and acts of aggression”. It opens (article 39) by providing that the Security Council shall determine the existence of any threat to the peace, breach of the peace or act of aggression and decide what measures should be taken in accordance with articles 41 and 42 to maintain or restore international peace and security. Article 41 is directed to measures not involving the use of armed force. More pertinently, article 42 empowers the Security Council, if it considers that article 41 powers were or would be inadequate, to take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. By article 43, member states undertake, in order to contribute to the maintenance of international peace and security, to make available to the Security Council on its call and in accordance with a special agreement or agreements, armed forces, assistance and facilities necessary for the purpose of maintaining international peace and security. Such agreements were to govern the number and types of forces, including their location, readiness and facilities and were to be negotiated as soon as possible on the initiative of the Security Council. No such agreements have, in practice, ever been made, and article 43 is a dead letter.
30. It remains to take note of article 103, a miscellaneous provision contained in Chapter XVI. It provides:
“In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail”.
This provision lies at the heart of the controversy between the parties. For while the Secretary of State contends that the Charter, and UNSCRs 1511 (2003), 1546 (2004), 1637 (2005) and 1723 (2006), impose an obligation on the UK to detain the appellant which prevails over the appellant’s conflicting right under article 5(1) of the European Convention, the appellant insists that the UNSCRs referred to, read in the light of the Charter, at most authorise the UK to take action to detain him but do not oblige it to do so, with the result that no conflict arises and article 103 is not engaged.
31. There is an obvious attraction in the appellant’s argument since, as appears from the summaries of UNSCRs 1511 and 1546 given above in paras 12 and 15, the resolutions use the language of authorisation, not obligation, and the same usage is found in UNSCRs 1637 (2005) and 1723 (2006). In ordinary speech to authorise is to permit or allow or license, not to require or oblige. I am, however, persuaded that the appellant’s argument is not sound, for three main reasons.
32. First, it appears to me that during the period when the UK was an occupying power (from the cessation of hostilities on 1 May 2003 to the transfer of power to the Iraqi Interim Government on 28 June 2004) it was obliged, in the area which it effectively occupied, to take necessary measures to protect the safety of the public and its own safety. Article 43 of the Hague Regulations 1907 provides, with reference to occupying powers:
“The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country”.
This provision is supplemented by certain provisions of the Fourth Geneva Convention. Articles 41, 42 and 78 of that convention, so far as material, provide
“41. Should the Power, in whose hands protected persons may be, consider the measures of control mentioned in the present Convention to be inadequate, it may not have recourse to any other measure of control more severe than that of assigned residence or internment, in accordance with the provisions of articles 42 and 43 …
42. The internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary …
78. If the Occupying Power considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may, at the most, subject them to assigned residence or to internment”.
These three articles are designed to circumscribe the sanctions which may be applied to protected persons, and they have no direct application to the appellant, who is not a protected person. But they show plainly that there is a power to intern persons who are not protected persons, and it would seem to me that if the occupying power considers it necessary to detain a person who is judged to be a serious threat to the safety of the public or the occupying power there must be an obligation to detain such person: see the decision of the International Court of Justice in Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda)  ICJ Rep 116, para 178. This is a matter of some importance, since although the appellant was not detained during the period of the occupation, both the evidence and the language of UNSCR 1546 (2004) and the later resolutions strongly suggest that the intention was to continue the pre-existing security regime and not to change it. There is not said to have been such an improvement in local security conditions as would have justified any relaxation.
33. There are, secondly, some situations in which the Security Council can adopt resolutions couched in mandatory terms. One example is UNSCR 820 (1993), considered by the European Court (with reference to an EC regulation giving effect to it) in Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v Ireland (2005) 42 EHRR 1, which decided in paragraph 24 that “all states shall impound all vessels, freight vehicles, rolling stock and aircraft in their territories …”. Such provisions cause no difficulty in principle, since member states can comply with them within their own borders and are bound by article 25 of the UN Charter to comply. But language of this kind cannot be used in relation to military or security operations overseas, since the UN and the Security Council have no standing forces at their own disposal and have concluded no agreements under article 43 of the Charter which entitle them to call on member states to provide them. Thus in practice the Security Council can do little more than give its authorisation to member states which are willing to conduct such tasks, and this is what (as I understand) it has done for some years past. Even in UNSCR 1244 (1999) relating to Kosovo, when (as I have concluded) the operations were very clearly conducted under UN auspices, the language of authorisation was used. There is, however, a strong and to my mind persuasive body of academic opinion which would treat article 103 as applicable where conduct is authorised by the Security Council as where it is required: see, for example, Goodrich, Hambro and Simons (eds), Charter of the United Nations: Commentary and Documents, 3rd ed (1969), pp 615–616; Yearbook of the International Law Commission (1979), Vol II, Part One, para 14; Sarooshi, The United Nations and the Development of Collective Security (1999), pp 150–151. The most recent and perhaps clearest opinion on the subject is that of Frowein and Krisch in Simma (ed), The Charter of the United Nations: A Commentary, 2nd ed (2002), p 729:
“Such authorizations, however, create difficulties with respect to article 103. According to the latter provision, the Charter – and thus also SC resolutions – override existing international law only insofar as they create ‘obligations’ (cf. Bernhardt on article 103 MN 27 et seq.). One could conclude that in case a state is not obliged but merely authorized to take action, it remains bound by its conventional obligations. Such a result, however, would not seem to correspond with state practice at least as regards authorizations of military action. These authorizations have not been opposed on the ground of conflicting treaty obligations, and if they could be opposed on this basis, the very idea of authorizations as a necessary substitute for direct action by the SC would be compromised. Thus, the interpretation of article 103 should be reconciled with that of article 42, and the prevalence over treaty obligations should be recognized for the authorization of military action as well (see Frowein/Krisch on article 42 MN 28). The same conclusion seems warranted with respect to authorizations of economic measures under article 41. Otherwise, the Charter would not reach its goal of allowing the SC to take the action it deems most appropriate to deal with threats to the peace - it would force the SC to act either by way of binding measures or by way of recommendations, but would not permit intermediate forms of action. This would deprive the SC of much of the flexibility it is supposed to enjoy. It seems therefore preferable to apply the rule of article 103 to all action under articles 41 and 42 and not only to mandatory measures.”
This approach seems to me to give a purposive interpretation to article 103 of the Charter, in the context of its other provisions, and to reflect the practice of the UN and member states as it has developed over the past 60 years.
34. I am further of the opinion, thirdly, that in a situation such as the present “obligations” in article 103 should not in any event be given a narrow, contract-based, meaning. The importance of maintaining peace and security in the world can scarcely be exaggerated, and that (as evident from the articles of the Charter quoted above) is the mission of the UN. Its involvement in Iraq was directed to that end, following repeated determinations that the situation in Iraq continued to constitute a threat to international peace and security. As is well known, a large majority of states chose not to contribute to the multinational force, but those which did (including the UK) became bound by articles 2 and 25 to carry out the decisions of the Security Council in accordance with the Charter so as to achieve its lawful objectives. It is of course true that the UK did not become specifically bound to detain the appellant in particular. But it was, I think, bound to exercise its power of detention where this was necessary for imperative reasons of security. It could not be said to be giving effect to the decisions of the Security Council if, in such a situation, it neglected to take steps which were open to it.
35. Emphasis has often been laid on the special character of the European Convention as a human rights instrument. But the reference in article 103 to “any other international agreement” leaves no room for any excepted category, and such appears to be the consensus of learned opinion. The decisions of the International Court of Justice (Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising From the Aerial Incident at Lockerbie  ICJ Rep 3, para 39; Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide  ICJ Rep 325, per Judge ad hoc Lauterpacht, pp 439–440, paras 99–100) give no warrant for drawing any distinction save where an obligation is jus cogens and according to Judge Bernhardt it now seems to be generally recognised in practice that binding Security Council decisions taken under Chapter VII supersede all other treaty commitments (Simma (ed), The Charter of the United Nations: A Commentary, 2nd ed (2002), pp 1299–1300).
36. I do not think that the European Court, if the appellant’s article 5(1) claim were before it as an application, would ignore the significance of article 103 of the Charter in international law. The court has on repeated occasions taken account of provisions of international law, invoking the interpretative principle laid down in article 31(3)(c) of the Vienna Convention on the Law of Treaties, acknowledging that the Convention cannot be interpreted and applied in a vacuum and recognising that the responsibility of states must be determined in conformity and harmony with the governing principles of international law: see, for instance, Loizidou v Turkey (1996) 23 EHRR 513, paras 42–43, 52; Bankovic v Belgium (2001) 11 BHRC 435, para 57; Fogarty v United Kingdom (2001) 34 EHRR 302, para 34; Al-Adsani v United Kingdom (2001) 34 EHRR 273, paras 54–55; Behrami and Saramati, above, para 122. In the latter case, in para 149, the court made the strong statement quoted in para 21 above.
37. The appellant is, however, entitled to submit, as he does, that while maintenance of international peace and security is a fundamental purpose of the UN, so too is the promotion of respect for human rights. On repeated occasions in recent years the UN and other international bodies have stressed the need for effective action against the scourge of terrorism but have, in the same breath, stressed the imperative need for such action to be consistent with international human rights standards such as those which the Convention exists to protect. He submits that it would be anomalous and offensive to principle that the authority of the UN should itself serve as a defence of human rights abuses. This line of thinking is reflected in the judgment of the European Court in Waite and Kennedy v Germany (1999) 30 EHRR 261, para 67, where the court said:
“67. The court is of the opinion that where states establish international organisations in order to pursue or strengthen their co-operation in certain fields of activities, and where they attribute to these organisations certain competences and accord them immunities, there may be implications as to the protection of fundamental rights. It would be incompatible with the purpose and object of the Convention, however, if the contracting states were thereby absolved from their responsibility under the Convention in relation to the field of activity covered by such attribution. It should be recalled that the Convention is intended to guarantee not theoretical or illusory rights, but rights that are practical and effective …”
The problem in a case such as the present is acute, since it is difficult to see how any exercise of the power to detain, however necessary for imperative reasons of security, and however strong the safeguards afforded to the detainee, could do otherwise than breach the detainee’s rights under article 5(1).
38. One solution, discussed in argument, is that a state member of the Council of Europe, facing this dilemma, should exercise its power of derogation under article 15 of the Convention, which permits derogation from article 5. However, such power may only be exercised in time of war or other public emergency threatening the life of the nation seeking to derogate, and only then to the extent strictly required by the exigencies of the situation and provided that the measures taken are not inconsistent with the state’s other obligations under international law. It is hard to think that these conditions could ever be met when a state had chosen to conduct an overseas peacekeeping operation, however dangerous the conditions, from which it could withdraw. The Secretary of State does not contend that the UK could exercise its power to derogate in Iraq (although he does not accept that it could not). It has not been the practice of states to derogate in such situations, and since subsequent practice in the application of a treaty may (under article 31(3)(b) of the Vienna Convention) be taken into account in interpreting the treaty it seems proper to regard article 15 as inapplicable.
39. Thus there is a clash between on the one hand a power or duty to detain exercisable on the express authority of the Security Council and, on the other, a fundamental human right which the UK has undertaken to secure to those (like the appellant) within its jurisdiction. How are these to be reconciled? There is in my opinion only one way in which they can be reconciled: by ruling that the UK may lawfully, where it is necessary for imperative reasons of security, exercise the power to detain authorised by UNSCR 1546 and successive resolutions, but must ensure that the detainee’s rights under article 5 are not infringed to any greater extent than is inherent in such detention. I would resolve the second issue in this sense.
The third issue
40. The third issue (whether English common law or Iraqi law applies to the detention of the appellant and, if the former, whether there is any lawful basis for his detention) can be addressed more shortly. It is directed first to the question whether a claim by the appellant in England against the Secretary of State for damages for false imprisonment is governed by English or Iraqi law. This claim is not founded on the Convention or the Human Rights Act but on tort or delict.
41. The general rule, enacted in section 11(1) of the Private International Law (Miscellaneous Provisions) Act 1995, is that the applicable law is the law of the country in which the events constituting the tort or delict occurred. That country in this case is Iraq, and therefore Iraqi law would ordinarily apply.
42. Section 12 of the 1995 Act provides that the general rule may be displaced if, on comparison of the factors connecting a tort or delict with the country where it occurred with factors connecting it with another country, it is “substantially more appropriate” for the applicable law for determining the issues to be the law of the latter country rather than the former. Making that comparison, and relying on a number of factors connecting the alleged tort with this country, the appellant submits that English law is shown to be substantially more appropriate than Iraqi law to determine the issues raised by his claim.
43. This submission was made by the appellant to the Court of Appeal, which rejected it for reasons given by Brooke LJ in paragraph 106 of his judgment. It is unnecessary to rehearse those reasons. The Court of Appeal made no error of law, and there is no ground for disturbing its assessment, with which in any event I wholly agree. I would resolve this issue against the appellant. The appellant’s claim in tort is governed by the law of Iraq.
44. For these reasons the appeal must be dismissed.
[emphasis in original]
In 2009, in the Al-Sadoon case, the England and Wales Court of Appeal (Civil Division) was called upon to decide the appeal of Mr Al-Sadoon and Mr Mufdhi. Lord Justice Laws summarized the appellants’ case as follows:
The appellants’ essential case was that if they were transferred from their present place of detention by UK troops at Basra into the custody of the IHT [Iraqi High Tribunal] they would be at risk, upon conviction of the charges [of war crimes which] they face, of suffering death by hanging, in violation of rights enjoyed by them under the European Convention on Human Rights (ECHR) alternatively free-standing principles of public international law. The Secretary of State says that no such rights arise, and in any event there will be no substantial risk of the appellants being put to death.
The appeal was dismissed. In the context of determining whether the UK had jurisdiction over the appellants at the time of their transfer to the Iraqi High Tribunal, Lord Justice Laws considered the lawfulness of their detention by UK forces at Basra. Lord Justice Laws found:
The Legal Position Relating to the Appellants’ Detention – Before 31 December 2008
32. Until 31 December 2008 the United Kingdom forces at Basra enjoyed the guarantees of immunity and inviolability provided by CPA [Coalition Provisional Authority] Order No 17 (Revised). But those measures prohibited invasive sanctions; they did not confer executive power. In my judgment, from at least May 2006 until 31 December 2008, the British forces at Basra were not entitled to carry out any activities on Iraq’s territory in relation to criminal detainees save as consented to by Iraq, or otherwise authorized by a binding resolution or resolutions of the [UN] Security Council. So much flows from the fact of Iraq’s sovereignty, and is not contradicted – quite the reverse – by any of the United Nations measures in the case. Thus the MNF [Multinational Force] Mandate was extended by the Security Council at Iraq’s express request. The letter requesting its extension (which was attached to [Security Council] Resolution 1790 (2007)) expressly stated at paragraph 4, “[t]he Government of Iraq will be responsible for arrest, detention and imprisonment tasks”. The various material Security Council Resolutions (1483 (2003), 1546 (2004) and 1790 (2007)) all emphasise the primacy of Iraqi sovereignty. As regards criminal detentions, CPA Memorandum No. 3 (Revised) makes it plain that so far as criminal detainees may be held by any national contingent of the MNF, they are held, in effect, to the order of the Iraqi authorities.
33. In these circumstances the United Kingdom was not before 31 December 2008 exercising any power or jurisdiction in relation to the appellants other than as agent for the Iraqi court. It was not exercising, or purporting to exercise, any autonomous power of its own as a sovereign State.
The Legal Position Relating to the Appellants’ Detention – After 31 December 2008
34. As I stated earlier, once the Mandate expired there remained under international law no trace or colour of any power or authority whatever for the MNF, or any part of it, to maintain any presence in Iraq save only and strictly at the will of the Iraqi authorities. Ms Monaghan [counsel for the appellants] sought to submit that the British base at Basra would by force of customary international law remain inviolable after 31 December. But she was unable to identify any principle which might, on the facts, support that position; and it is to my mind wholly inescapable that after that date British forces remaining in Iraq have done so only by consent of the Iraqi authorities and on such terms as those authorities have agreed. And it must have been plain, as soon as it was known when the Mandate would come to an end, that this would be the true state of affairs.
35. And there is no sensible room for doubt but that the terms on which British forces would be permitted to remain in Iraq by the Iraqi authorities would not encompass any role or function which would permit, far less require, British (or any other) forces to continue to hold detainees. By his third witness statement made on 26 December 2008 Mr Watkins, Director of Operational Policy in the Operations Directorate in the Ministry of Defence, produced a resolution passed by the Iraqi Council of Representatives on 23 December authorising the Council of Ministers to regulate the presence and activities of British and other forces in Iraq after 31 December. It is plain that the arrangements envisaged do not contemplate the detention of any prisoners by any such forces. Mr Watkins also stated that Iraqi officials had made it clear on 21 December that even in relation to proposed authorized tasks they did not consider it acceptable for British forces to exercise any powers of detention after 31 December. The Council of Representatives resolution (which was to, and I assume did, come into force on 1 January 2009) also suspended the operation of CPA Order No 17 (Revised). Mr Watkins had given evidence in an earlier statement that the Iraqi government would not after 31 December accept CPA Memorandum No 3 (Revised) as remaining in operation.
36. After 31 December 2008 British forces enjoyed no legal power to detain any Iraqi. Had they done so, the Iraqi authorities would have been entitled to enter the premises occupied by the British and recover any such person so detained.
In 2010, in the Evans case, the England and Wales High Court of Justice, Queen’s Bench Division, considered the legality of the transfer of detainees by UK armed forces to Afghan detention facilities. The facts of the case, as summarized by Lord Justice Richards who gave the judgment to which both judges had contributed, are:
The case concerns UK policy and practice in relation to the transfer to the Afghan authorities of suspected insurgents detained by UK armed forces in the course of operations in Afghanistan. The policy is that such detainees are to be transferred to the Afghan authorities within 96 hours or released, but are not to be transferred where there is a real risk at the time of transfer that they will suffer torture or serious mistreatment. The claimant’s case is that transferees into Afghan custody have been and continue to be at real risk of torture or serious mistreatment and, therefore, that the practice of transfer has been and continues to be in breach of the policy and unlawful. The claimant seeks, in effect, to bring the practice of transferring detainees into Afghan custody to an end. If detainees cannot be transferred, the likelihood at present is that they will have to be released. Thus the importance of the case lies not only in its subject-matter but also in its implications for security in Afghanistan and the effectiveness of UK operations there.
Lord Justice Richards set out the context of the case as follows:
17. The law of armed conflict applies to military operations conducted in internal armed conflict and, subject to compliance with that law, UK armed forces operating in Afghanistan are authorised to kill or capture insurgents. Indeed, a vital element of fulfilling the UN mission is the capture of persons who threaten the security of Afghanistan. The power to capture insurgents extends to a power to detain them temporarily. In the absence of any express authorisation in the UN Security Council resolutions, however, the Secretary of State [for Defence] takes the view that the UK has no power of indefinite internment. …
18. Insurgents may have committed offences under Afghan law, notably the 1987 Law on Crimes against Internal and External Security and the 2008 Law on Combat against Terrorist Offences. The Afghan Government is entitled to prosecute those within its jurisdiction who are believed to have committed offences. Successful prosecutions are an important element of the strategy for securing the rule of law and bringing security to Afghanistan. Accordingly, where captured insurgents are believed to have committed offences against Afghan law, sound reasons exist for their transfer into the custody of the Afghan authorities for the purposes of questioning and prosecution.
19. Under ISAF [International Security Assistance Force] standard operating procedures, the only grounds upon which a person may be detained are that the detention is necessary for ISAF force protection, for the self-defence of ISAF or its personnel, or for the accomplishment of the ISAF mission. Such persons should be detained for no longer than 96 hours, subject to the possibility of an extension in certain circumstances. They must then be released or transferred to the Afghan authorities. …
20. The UK’s policy reflects that of ISAF. There are detailed standard operating instructions on how to detain individuals, look after them in detention and, where appropriate, manage their onward transfer to the Afghan authorities.
In 2010, in the Al-Jedda case (No 2), the England and Wales Court of Appeal (Civil Division) was called upon to decide the appeal of Mr Al-Jedda, a national of both the United Kingdom and Iraq, who sought damages for unlawful imprisonment by UK forces in Iraq. The Court of Appeal dismissed the appeal. Lady Justice Arden summarized the background of the case as follows:
1. In this action, Mr Al Jedda, who has both Iraqi and British nationality, seeks damages for unlawful imprisonment by reason of his detention by British forces in a military detention centre in Iraq. On this appeal we have to determine whether this action was properly dismissed by Underhill J on 5 March 2009 following the trial. The period for which damages is claimed constitutes part only of the period for which Mr Al Jedda was detained, namely that following the adoption of the new Constitution of Iraq on 20 May 2006 to 30 December 2007, the date of his release.
2. The claim was raised by amendment. Mr Al Jedda’s original claim was for declaratory relief or habeas corpus. In earlier proceedings, Mr Al Jedda sought declaratory relief and damages under the Human Rights Act 1998 (“HRA”) but the House of Lords held that no such claim lay because the United Kingdom’s obligations had been displaced by its obligations under the UN Charter ( 1 AC 332). The earlier proceedings leading to the decision of the House of Lords are referred to in this judgment as Al Jedda 1. This court in Al Jedda 1 held that, under section 11 of the Private International Law (Miscellaneous Provisions) Act 1995 (“PILA”), the law governing any claim for false imprisonment was that of Iraq. The House of Lords agreed with that holding.
3. In legal terms, this is an unusual case. Mr Al Jedda was detained by British forces in Basra on 10 October 2004 on security grounds. He was suspected of being a member of a terrorist group said to be involved in weapons smuggling and explosive attacks in Iraq. He remained in detention until 30 December 2007. He was at no time charged with any offence. It has been held that he is unable to bring any claim to test the lawfulness of his detention under the HRA (Al Jedda 1
), although, following the dismissal of that claim by the House of Lords, Mr Al Jedda has made an application to the European Court of Human Rights (“the Strasbourg court”). The Grand Chamber of the Strasbourg court had a hearing in his case on 9 June 2010, and judgment from that court is pending. It has also been held that Mr Al Jedda cannot bring any claim in tort under the common law. Notwithstanding that Mr Al Jedda’s detention was by British forces, the lawfulness of his detention can only be determined if, at all, these proceedings, that is, under the law of Iraq, where the detention occurred.
Lady Justice Arden further stated:
The essential facts for the purposes of this appeal are: (1) Mr Al Jedda was detained pursuant to arrangements agreed between British forces and the Iraqi government prior to the adoption of the new Constitution in fulfilment of the United Kingdom’s obligations under the UN Charter; (2) those arrangements complied with [the 1949] Geneva [Convention] 4; (3) the Iraqi government did not withdraw its agreement to those arrangements after the adoption of the new Constitution; and (4) those arrangements made no provision of any sort for a hearing or any review by an independent judicial officer.
Lady Justice Arden noted that there are five issues raised by this appeal:
i) Was the detention of Mr Al Jedda from 20 May 2006 unlawful under Iraqi law by reason of the operation or effect of the Iraqi Constitution? (“the lawfulness of detention issue”)
ii) In so far as Mr Al Jedda’s claim raises any issue as to the meaning or effect of provisions of the Iraqi constitution, is the issue justiciable in an English court? (“the justiciability issue”)
iii) If Mr Al Jedda’s detention from 20 May 2006 was unlawful under Iraqi law, should the relevant provisions in Iraqi law be disapplied on the basis that they are inconsistent with the requirements of international law and their enforcement would accordingly be contrary to public policy pursuant to section 14(3) of PILA [Private International Law Act]? (“the public policy issue”)
iv) Does the immunity conferred on British forces operating in Iraq by CPA [Coalition Provisional Authority Order No] 17 have the effect that Mr Al Jedda’s claim discloses no actionable tort for the purposes of section 9 (4) of PILA? (“the CPA 17 issue”)
v) Is the Secretary of State entitled to rely on the defence of act of state? (“the act of state issue”).
Lady Justice Arden considered the extent to which Article 78 of the 1949 Geneva Convention IV was relevant for determining the legality of the appellant’s detention. She found:
We are concerned with the meaning of Articles 15 and 37(1)(B) of the Iraqi Constitution. The provisions of Article 78 of [the 1949] Geneva [Convention] 4, and of the Siracusa
principles [on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights], are important, but of limited assistance in this task. The former deals with the position of an occupying power and the latter deals with the situation of emergency powers. Neither deals with the relationship between a government and its citizens where there has been no derogation because of an emergency. Under Article 61 of the Iraqi Constitution … , states of emergency can be declared for successive periods of thirty days, and all the necessary powers to deal with the emergency can then be delegated to the Prime Minster. Those powers must be regulated by laws which do not contradict the Constitution but, if they are necessary to deal with the situation (and that involves showing necessity), they may, as I read Article 61, depart from other powers, including Articles 15 and 37(1)(B). I respectfully doubt therefore the utility of praying in aid the turmoil in Iraq: if there was a state of emergency there were other provisions in the Constitution which authorised the taking of other powers which could have been but which were not used.
Lady Justice Arden held:
108. Firstly, in my judgment, Al Jedda 1 established that the United Kingdom was entitled and bound under its obligations under Article 103 of the UN Charter to intern persons where this was necessary for the internal security of Iraq. Internment for this purpose would clearly qualify as an act of state. My conclusion that act of state is a defence here does not go wider than this. It applies, in my judgment, because of the overriding force of UNSCR [UN Security Council Resolution] 1546. If courts hold states liable in damages when they comply with resolutions of the UN designed to secure international peace and security, the likelihood is that states will be less ready to assist the UN achieve its role in this regard, and this would be detrimental to the long-term interests of the states. The individual is sufficiently protected in this situation by compliance with [the 1949] Geneva [Convention] 4. By virtue of CPA [Coalition Provisional Authority Order No] 3, there had to be compliance with Geneva 4. It is thus not correct to say that the executive had unfettered powers of internment. A decision of the executive in breach of Geneva 4 can be remedied in this jurisdiction through the processes of judicial review, and a breach may also constitute a criminal offence over which the United Kingdom courts would have universal jurisdiction under the Geneva Conventions Act 1957. My conclusion is analogous to that reached in
Al Jedda 1 where it was held that Convention [i.e. ECHR] rights were displaced by powers conferred by UNSC resolutions to the extent necessary to exercise those powers … Within that limit, there can in my judgment be no challenge to a review of detention carried out under those powers in any manner permitted by Geneva 4 or to the legality of a decision to detain made in exercise of the powers conferred by the UNSCR. Both such challenges would be subject to the defence of act of state. The fact that the proper law of an alleged wrong is that of Iraq does not affect this decision. I would add that when holding that the proper law of the tort was the law of Iraq, this court in Al Jedda 1 excluded a separate claim for habeas corpus ( QB 621 at  to ). It is unnecessary for me to consider whether there would be a claim for habeas corpus if Mr Al Jedda had not been released.
109. Secondly, the fact that Mr Al Jedda is a British national is not, in my judgment, a bar to the raising of the defence of act of state in respect of acts done abroad as part of a general policy of internment carried out under the authority of the UN for imperative reasons of security. In my judgment, a British national is entitled not to have the defence of act of state raised against him by the British government where he both owes an obligation of allegiance and is constitutionally entitled to be protected against the type of act of which he complains. However, the actions of the British forces in that situation do not infringe any domestic constitutional protection available to Mr Al Jedda as a British national because the act had a legal basis in the overarching provisions of Article 103 of the UN Charter and Geneva 4. I reach this conclusion for this reason and the reasons given in the preceding paragraph and notwithstanding the importance of the accountability of the executive under the law (see Entick v Carrington [1558-1774] All ER 4), even in the conduct of foreign relations. However, I do not accept that reliance on act of state is precluded where the loss is suffered by an individual: see, for example, Buron v Denman (1848) 2 Exch. 167, cited by Lord Justice Elias.
110. Thirdly, Nissan Attorney General v Nissan  AC 179] is in my judgment clearly distinguishable. It was no part of the peace-keeping function of the troops to take property without paying for it. In the present case, internment was part of the role which the British contingent of the MNF [Multinational Force] were specifically required to carry out. The acceptance and carrying out of those obligations was an exercise of sovereign power. It is inevitable that a detainee would suffer the loss of his liberty while he was detained. Therefore, even though Mr Al Jedda’s claim is for compensation rather than to challenge the validity of an act of state, and respectfully differing from the tentative illuminating views on this issue of Lord Justice Elias, I consider that the court cannot entertain it.
111. For the reasons given above, I have found in Mr Al Jedda’s favour on four out of the five issues. However, to succeed on the appeal he needed to win on all of them. Accordingly, I would dismiss the appeal, as well as the respondent’s notice.
In 2003, during a debate in the House of Lords on the Anti-terrorism, Crime and Security Act 2001 (Continuance in force of sections 21 to 23) Order 2003, the UK Parliamentary Under-Secretary of State, Home Office, stated:
Before September 11th, the UK had already built up 30 years’ experience of dealing with terrorism and terrorists. This meant that there were proven counter-terrorism measures and legislation in place. However, the September 11th attacks in New York, Washington and Pennsylvania were on an unprecedented scale and of a different nature to what we had so far faced. We needed to address that difference swiftly and effectively. We introduced the Anti-terrorism, Crime and Security Act 2001, including the Part 4 immigration and asylum powers.
The 2001 Act built on and updated as necessary the tough counter-terrorism provisions already in place. It was designed to ensure that the Government had the necessary powers to counter all forms of terrorist threat while ensuring the protection of individual rights and consistency with our international commitments.
The detention powers in Sections 21 to 23 of Part 4 of the Act were considered essential in the light of the particular public emergency facing the life of the nation, and proportionate to that threat. They address the very specific threat from suspected international terrorists present in the UK who are further suspected of involvement in terrorism of the sort which led to the events of September 11th. In short, it involves individuals who would not normally be permitted to remain in this country but who cannot be deported for legal or practical reasons.
Those measures required a derogation from Article 5 of the European Convention on Human Rights (ECHR). This was not something that was undertaken lightly, but we believed - and continue to believe – that, based on the mass of evidence available to the Government, there is a public emergency threatening the life of the nation within the meaning of Article 15 of ECHR and that the measures we have taken are strictly required by the exigencies of the situation and are proportionate.
Having reviewed the open and the closed evidence, in its judgment in July 2002, the Special Immigration Appeals Commission (SIAC) agreed that there was a public emergency facing the life of the nation and that the measures were strictly required by the exigencies of the situation. However, the SIAC found that the powers were discriminatory, as they applied only to foreign nationals. The subsequent Court of Appeal judgment in October 2002 held, unanimously, that the derogation was lawful.
I can confirm that in my view the provisions of the order are compatible with the convention rights.
The detention powers that we took under Part 4 of the ATCS Act, in response to the public emergency, closed a very specific loophole. There are present in the UK a number of foreign nationals who are suspected of being concerned in the commission, preparation or instigation of acts of international terrorism of the kind which resulted in events of 11th September 2001; being members of organisations or groups so concerned, or having links with members of such organisations or groups; and who are a threat to our national security.
Where it is possible to remove or deport from the UK a foreign national suspected of terrorism, we make every effort to do so. But removal is precluded for some of these foreign national suspected terrorists because of the important safeguard in Article 3 of the ECHR to prevent removal if they might face torture, inhuman or degrading treatment or punishment.
Of course if it is possible to prosecute we will do so, and that would always be the preferred course of action. But it is not always possible to prosecute.
The Government have to achieve a difficult balance between our international commitments and our duty to safeguard the security of this country. The Government have reviewed closely and regularly the need for the detention powers and ECHR Article 5(1) derogation, as well as the feasibility of other possible options. We concluded that there was no responsible or indeed effective alternative but to maintain powers to detain, and the ECHR derogation. That view was upheld in the Court of Appeal in October.
The Government have also reviewed closely the application of detention powers to foreign and not UK nationals. We believe they are entirely justified, for the following reasons. The threat comes predominantly, though not exclusively, from foreign nationals present in the UK who we are not able to remove. The preferred course of prosecution may not be possible because the evidence needed for successful prosecution may be unavailable or not usable. It would be deeply damaging if the UK was seen to be unable to take action and consequently as providing safe haven, weakening the international fight against terrorism.
Finally, unlike UK nationals, who have the right to be in the UK, foreign nationals are ordinarily subject to removal if they represent a threat to national security.
The Court of Appeal upheld our position on the need for these powers in its judgment in October last year, and agreed that they were not discriminatory and comply with ECHR.
To date, 15 foreign nationals have been detained under Sections 21 to 23 of the Act. Of those, two have voluntarily left the UK. The other 13 remain in detention. The decisions to certify and detain these individuals were based on detailed and compelling intelligence and other material. That material will be examined by the SIAC, as provided under ATCS Act.
All those detained have had access to legal advice throughout the detention period and there is no limit on the number of legal visits that detainees may receive. Those detained have immediate right of appeal to the Special Immigration Appeals Commission against the certificate. All but one of the detainees have already exercised that right. The ATCS Act provides for the SIAC regularly to review certificates, and it may overturn them. Detainees also have the right to apply for bail to the commission at any time and several have done so. This is not internment. It is open to the detainees to leave the United Kingdom of Great Britain and Northern Ireland, and two have done so.
Individual detainee appeals will be heard by the SIAC, starting in May. We believe these would have been heard much sooner had it not been for the legal challenge mounted by defendants to the detention powers – powers which the Court of Appeal upheld in October. We are clear that they must proceed as early as possible without any necessity to await the final outcome of the derogation challenge to the House of Lords, if leave is granted.
The Home Secretary stated in the House of Commons:
“I do not think that there has ever been an Act or part of an Act that has been subject to as much review, scrutiny, renewal and cancellation as this – and rightly so”. – [Official Report, Commons, 3/3/03; col. 586.]
The noble Lord, Lord Carlile of Berriew, is the independent reviewer of the Part 4 powers. His report on the workings of Sections 21 to 23 of the ATCS Act was laid before the House on 12th February. We are most grateful to the noble Lord for his detailed, thorough and challenging work. We are pleased to note that the noble Lord, Lord Carlile, is satisfied that the Home Secretary has certified persons under the Act only in appropriate cases and that he has exercised his independent judgment in each case, having given due regard to advice from officials.
We welcome the noble Lord’s recommendations. We are considering his points in detail and will reply to him shortly. The Home Secretary has already agreed in principle to the noble Lord’s recommendation for detainees to be held in a separate facility within the Prison Service and scoping work is proceeding on this. I should emphasise that the decision to go to a separate unit, when it exists, on the part of the detainees will be voluntary; there will not be, and must not be, any sense of compulsion over this.
The order extends for a further 12-month period the powers in Sections 21 to 23 of the Act. Those powers will then lapse, unless we propose renewal for a further period of up to 12 months, and if that proposal is then approved by both Houses of Parliament. In summary, the effect of the order is to continue in force, until 13th March 2004, the powers under Sections 21 to 23.
In the light of the events of the last 18 months, including recent weeks, we are absolutely convinced that the public emergency continues. For so long as it does so, when a foreign national suspected of terrorism of the kind which resulted in the events of September 11th and of being a threat to national security, and when we want to remove or deport them but removal is not possible, we believe it is necessary and proportionate to continue to provide for extended detention under immigration powers pending eventual removal. That is why I am seeking this House’s approval to extend the powers in sections 21 to 23. I commend the order to the House.
In 2003, in a reply to a written question in the House of Commons, the UK Secretary of State for Defence wrote:
Coalition military action against Iraq is in conformity with international law. The taking of prisoners of war is a recognised and legitimate means of reducing an enemy’s strength and fighting capacity. Iraqi military personnel who fall into the hands of United Kingdom of Great Britain and Northern Ireland forces will be treated in accordance with the Geneva Convention.
In 2003, in reply to oral questions in the House of Lords, the UK Parliamentary Under-Secretary of State for Defence stated:
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Bach): My Lords, the Government have long made plain that they will act in conformity with international law. The taking of prisoners of war is a recognised and legitimate means of reducing an enemy’s strength and fighting capacity. Iraqi military personnel who fall into the hands of United Kingdom of Great Britain and Northern Ireland forces are prisoners of war and therefore will be treated in accordance with the Geneva Conventions.
Lord Monson: My Lords, will the Minister confirm that it would be contrary to international law for coalition forces to imprison unarmed civilians merely because they happen to belong to a certain political party?
: My Lords, merely because they happen to belong to a particular political party? Yes, of course that would be unlawful. But we have the power to capture and detain combatants and others who pose a direct threat to United Kingdom of Great Britain and Northern Ireland forces or whose continued liberty poses a threat to our overall mission. If one or other of those requirements is met, we are entitled under international law to detain them.
In 2003, in reply to a written question in the House of Lords, the UK Parliamentary Under-Secretary of State for Defence, Lord Bach, wrote:
Lord Oakeshott of Seagrove Bay asked Her Majesty’s Government:
Further to the Written Answer by the Lord Bach on 16 July (WA125), for how much longer they expect to keep without trial the 71 persons captured by British forces interned for imperative reasons of security; and how and by whom they expect the prisoners to be tried if they are not released.
: Of the 71 persons held for imperative reasons of security on 15 July, 49 have already been released. The remainder will be held until it is assessed that their internment is no longer necessary for reasons of security, all cases are subject to regular review. In cases where there is evidence to suggest that a criminal offence has been committed, persons captured by United Kingdom of Great Britain and Northern Ireland forces are handed to the Iraqi judicial system. If internment is based on intelligence material that justifies internment, the case will not be suitable for trial, although cases will be subject to regular review.
In 2003, in its fourth periodic report to the Committee against Torture, the United Kingdom stated:
57. In response to the events of September 11th 2001, the Anti-Terrorism, Crime and Security (ATCS) Act 2001 was passed to deal with the problem of suspected international terrorists who could not be returned to their home countries because of an international agreement, for example the ECHR [1950 European Convention on Human rights], which prohibits removal of a person who would face torture, or because of practical difficulties – for example a war, or a state of serious instability, in their home country.
58. The powers of the ATCS Act provide that anyone subject to immigration control whom the Home Secretary has certified as being a suspected terrorist and a threat to national security, and whom he has decided should be removed from the United Kingdom, could be detained pending removal, even where removal is not possible in the foreseeable future. The use of these powers has been accompanied by derogations from the European Convention on Human Rights and the United Nations ICCPR [1966 International Covenant on Civil and Political Rights] reflecting the emergency facing the United Kingdom. Both the detentions and the derogation are reviewed regularly. These powers are designed to be used only in the immigration context, and anyone detained under them can leave the United Kingdom at any time. There is a full right of appeal against the certification and against the decision to deport. These powers have so far been used in a limited way. Fifteen people have been detained under the Act. All 15 are currently appealing their certificates. Ten appeals have been heard to date and the determinations for these are expected at the end of September 2003. The hearings for the remainder of the appeals will start in November 2003. Some of the detainees have also appealed against the United Kingdom’s derogation from article 5 of the ECHR. The Court of Appeal unanimously upheld the United Kingdom’s decision to derogate in October 2002. Leave to appeal to the House of Lords has been granted; at the time of writing no date has been set for the hearing.
In 2003, in a reply to a written question in the House of Lords, the UK Minister of State, Home Office, wrote:
Sixteen foreign nationals have so far been detained using powers in Part IV of the Anti-terrorism, Crime and Security (ATCS) Act 2001. Eight were detained in December 2001, one in February 2002, two in April 2002, one in October 2002, one in November 2002, two in January 2003 and one in October 2003. One further individual has been certified under Part IV of the ATCS Act in August 2003 but is detained under other powers.
Of the total detained, two have voluntarily left the United Kingdom of Great Britain and Northern Ireland. The other 14 remain in detention.
The Home Secretary’s decisions to detain these individuals were made on the basis of detailed and compelling evidence. That evidence is being examined by the Special Immigration Appeals Commission as the individuals’ appeals are heard, as provided for under the ATCS Act. The commission is equivalent to the High Court. It has the power to overturn his decisions.
Where terrorism is concerned, our paramount responsibility is to ensure public safety and national security. So long as the public emergency subsists, where a person is suspected of terrorism but cannot currently be removed and for whom a criminal prosecution is not an option, we believe that it is necessary and proportionate to provide for extended detention, pending removal.
In 2003, in a reply to a written question in the House of Commons, the UK Minister of State for the Armed Forces, Ministry of Defence, wrote:
Article 78 of the IV Geneva Convention (1949) allows the UK as the Occupying Power to intern people where it considers it necessary for reasons of security. Internees will continue to be held until such time as they are no longer considered a threat to Coalition Forces. A review is conducted at the 10, 28 and 90 day points (and every 90 days thereafter) to determine whether continued internment is necessary. Internees enjoy all their rights under the Geneva Conventions.
As at 1 December, all internees held by the UK Forces in Iraq are of either Iraqi or Sudanese nationality.
In 2004, in a written answer to a question concerning, inter alia, instructions to treat prisoners and detainees in accordance with the 1949 Geneva Conventions, the UK Parliamentary Under-Secretary of State, Ministry of Defence, stated:
All British forces personnel in Iraq have the authority to detain persons who pose a threat to their safety or security and are, therefore, briefed in prisoner handling. This includes guidance that prisoners should be treated, at all times, fully in accordance with the Geneva Conventions.
In 2006, in a written answer to a question in the House of Lords concerning, inter alia
, “the release of hostages and detainees”, the UK Parliamentary Under-Secretary of State, Foreign and Commonwealth Office, stated that the government continued to have “concerns about the detention of members of the Palestinian Government and legislature on 29 June. Those detained should be accorded their full legal rights and either be charged or released”.
In 2006, in its sixth periodic report to the Human Rights Committee, the United Kingdom stated:
36. The Government set out the general context of the introduction of the Anti-terrorism, Crime and Security (ATCS) Act 2001 and the subsequent certification and detention of suspected terrorists under Part 4 of the Act in its interim report to the Human Rights Committee in November 2002. These Part 4 powers have since been repealed and a new system of control orders was introduced in the Prevention of Terrorism Act 2005, a summary of which is provided below.
37. The Part 4 powers were exceptional immigration powers that enabled the Home Secretary to certify, and therefore to detain, foreign nationals who were suspected of involvement in international terrorism and who were believed to represent a risk to national security but who could not be removed from the United Kingdom. The main reason they could not be removed was because it was assessed that, faced with removal, they would be able to argue that, if returned to their countries of origin, there was a real risk that they would suffer torture or inhuman treatment, putting the United Kingdom in breach of article 3 of ECHR [the 1950 European Convention on Human Rights], article 7 of ICCPR [1966 International Covenant on Civil and Political Rights] and the Convention Against Torture (CAT). Since detention in these circumstances was arguably contrary to article 5 of ECHR and article 9 of ICCPR, the United Kingdom derogated from these articles (in accordance with article 15, ECHR, and article 4, ICCPR).
38. These powers were used sparingly: only 17 people were certified under the 2001 Act. Sixteen were certified and detained, and one was certified but detained under other powers (of the sixteen who were detained on the strength of the Part 4 powers, two chose to leave the UK). Those certified had a right of appeal to the Special Immigration Appeals Commission (SIAC), and all 17 exercised their right. SIAC heard 16 appeals and the remaining one has recently been withdrawn. In the 16 appeals which it determined, SIAC upheld the Home Secretary’s decision to certify in all but one of the cases. The determinations for the first 10 appeals were handed down together. The appellants were given leave to appeal to the Court of Appeal. Their case was heard in July 2004 and the judgment given on 11 August 2004. The Court of Appeal upheld the position taken by the Home Secretary.
39. The legality of the derogation sought in relation to the ATCS Act Part 4 powers has also been separately challenged in the Courts. On 30 July 2002 SIAC upheld the Home Secretary’s conclusion that the Part 4 powers remained a necessary and proportionate response by the Government in view of the public emergency threatening the life of the nation within the terms of article 15 of ECHR and article 4, ICCPR. SIAC however considered that the provisions of the Act were discriminatory and contrary to article 14 of ECHR in so far as they permitted detention of suspected international terrorists in a way that discriminated against them on the ground of nationality. The Court of Appeal reversed this decision on 25 October 2002 (while still upholding the Home Secretary’s conclusion that the Part 4 powers remained a necessary and proportionate response by the Government in view of the public emergency threatening the life of the nation).
40. The case was subsequently taken to the House of Lords. On 16 December 2004 the Law Lords concluded that section 23, ATCS Act, was incompatible with articles 5 (deprivation of liberty) and 14 (prohibition of discrimination) of ECHR. The basis for the decision was that detention of foreign suspected nationals was discriminatory and disproportionate in that (a) the measures targeted foreign nationals alone and (b) it could not be said that measures short of detention would not adequately meet the threat posed by international terrorists. In summary, they concluded that there was a public emergency threatening the life of the nation but that the measures were not strictly required by the exigencies of the situation because they were disproportionate and discriminatory.
41. Following this ruling, the British Government acted swiftly to bring forward new legislation – the Prevention of Terrorism Act 2005. The 2005 Act repealed sections 21 to 32 of the ATCS Act, and introduced a new system of control orders. Subsequently, the United Kingdom withdrew its derogation from ECHR and ICCPR.
43. The Prevention of Terrorism Act provides for two types of order: “non-derogating control orders” in which the obligations imposed must not amount to a deprivation of liberty within the meaning of article 5 ECHR; and “derogating control orders”, which impose obligations that do amount to a deprivation of liberty under the terms of the ECHR. The Act empowers the Secretary of State to make a non-derogating control order but only a court can make a derogating control order. To date, the Government has not sought a derogation from article 5 ECHR and unless and until it does so, derogating control orders cannot be made.
44. In the case of Secretary of State for the Home Department v JJ and Others (1 August 2006), the Court of Appeal upheld the High Court’s decision to quash six non-derogating control orders that were found to include obligations that deprived the individuals of their liberty contrary to article 5 ECHR and accordingly had been unlawfully made by the Secretary of State. The Government of the United Kingdom is seeking to appeal the Court of Appeal ruling in the House of Lords.
In 2007, in its response to the Intelligence and Security Committee’s Report on Rendition, the UK Government stated: “the UK opposes any form of deprivation of liberty that amounts to placing a detained person outside the protection of the law”.
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:
12. The treaties setting out rules of IHL are supplemented by rules of customary international law (CIL), i.e. rules which are recognized as binding by States, even though they do not appear in treaty texts. … [I]n relation to the rules described below the Government accepts that they reflect CIL. It is suggested that the rules which are of most relevance to this inquiry are:
12.12. … Arbitrary deprivation of liberty is prohibited.
12.13. The ICRC commentary to this rule distinguishes between international armed conflicts and non-international armed conflicts. In relation to the former, it refers exclusively to the internment regime set out in GC4 [the 1949 Geneva Convention IV] in relation both to the substantive right to intern and procedural protections during internment.
[footnote in original omitted; emphasis in original]
In 2010, the UK Army Inspector examined and assessed the implementation of policy, training and conduct of detainee handling by UK armed forces on operations. The Final Report by the Army Inspector states:
30. In its discussions with deployed personnel, the Review has identified two areas in which some individuals were uncertain as to the policy to be followed: [One area concerns] … the detention (or not) of juveniles.
b. SOI J3-9 states that “Children under the age of 15 should not be detained unless necessary to prevent imminent danger to UK forces. In certain circumstances, those under the age of 15 may be removed from a location to be protected from danger and passed to [Host Nation] authorities for their own safety. This is best achieved by alerting [Afghan National Security Forces/Afghan National Police] to any child in danger. Children must be supervised by female troops where possible”.
[footnote in original omitted; emphasis in original]