The House of Lords has held, in a case concerning an individual detained by British forces in Basra, that the UK is responsible for such detention, and not the UN, as the British government had argued.
The House of Lords also considered the UK argument whereby when the Security Council acts under Chapter VII of the UN Charter and authorises an action through the phrase 'all necessary means', that this automatically means that a state can override all pre-existing international obligations that conflict with that authorisation. The House of Lords overturned Lord Justice Brooke of the Court of Appeal on this point.
While accepting that in some circumstances a Chapter VII authorisation can override human rights obligations, the Law Lords emphasise the very limited nature of this authorisation. Lord Bingham held that the UK 'must ensure that the detainee’s rights under Article 5 [European Convention on Human Rights, which protects the right not to be held without due process] are not infringed to any greater extent than is inherent in such detention' (para 39). Baroness Hale went even further in emphasising that Mr Al-Jedda’s right not to be detained without due process had been 'qualified but not displaced' and that: 'The right is qualified only to the extent required or authorised by the resolution. What remains of it thereafter must be observed. This may have both substantive and procedural consequences' (para 126).
Whether or not Mr Al-Jedda can continue to be held without trial depends now on a further hearing to take place in the High Court early next year. Lawyers for Al-Jedda will challenge the intelligence that forms the basis of the decision of the UK Government that he continues to pose such a threat to peace and security in Iraq that it is absolutely necessary that he be detained there, rather than brought back to the UK and dealt with here.
In late August 2007, Al-Jedda’s lawyers in a different action obtained an order from the Court of Appeal that he could not be released or transferred from the jurisdiction of the UK Government without proper written notice to his lawyers. This would allow time for an urgent application to protect him from the risk of torture if he is handed over to the Iraqi authorities.
The ruling is available at: http://www.mediafire.com/?6ndcz4jgctl
Thanks to Andrea Breslin, a doctoral student at the Irish Centre for Human Rights, who is currently completing an internship with Phil Shiner and Public Interest Solicitors, who act for Al-Jedda.