Abstract
In this note, the author outlines some of the ramifications of the Al-Jedda case that have not been picked up in other commentaries, in particular its implications for detention operations carried out by ECHR member states abroad. The author argues that the Court’s approach to and interpretation of international humanitarian law (IHL) do not comport with the spirit or letter of this body of rules.
This article was written in a personal capacity and does not necessarily reflect the views of the ICRC.
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Notes
- 1.
Both cases were decided by the Grand Chamber of the European Court of Human Rights and were almost unanimous.
- 2.
Al Skeini v. UK, Grand Chamber, Judgment of 7 July 2011, no.55721/07 ECHR 2011.
- 3.
Al Jedda v. UK, Grand Chamber, Judgment of 7 July 2011, no.27021/08 ECHR 2011. (Hereinafter ‘Al-Jedda Judgment’).
- 4.
Al-Jedda Judgment, supra n. 3, para 11.
- 5.
Al-Jedda Judgment, supra n. 3, paras 12 and 13.
- 6.
Al-Jedda Judgment, para 15.
- 7.
Article 5(1) of the Convention provides:
1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; (b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
- 8.
Al-Jedda Judgment, supra n. 3, para 60.
- 9.
Al-Jedda Judgment, supra n. 3, para 84.
- 10.
S/RES/1546 (2004), 8 June 2004.
- 11.
Al-Jedda Judgment, supra n. 3, para 101.
- 12.
Al-Jedda Judgment, supra n. 3, para 102.
- 13.
“However, such an agreement could not override the binding obligations under the Convention. In this respect, the Court recalls its case-law to the effect that a Contracting State is considered to retain Convention liability in respect of treaty commitments and other agreements between States subsequent to the entry into force of the Convention”[…]. Al-Jedda Judgment, supra n. 3, para 108.
- 14.
These are laid out in paras 42–44 of the Judgment entitled “Relevant provisions of international humanitarian law”. Fourth Geneva Convention, Article 27: Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.
Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault.
Without prejudice to the provisions relating to their state of health, age and sex, all protected persons shall be treated with the same consideration by the Party to the conflict in whose power they are, without any adverse distinction based, in particular, on race, religion or political opinion.
However, the Parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war.
Fourth Geneva Convention, Article 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.
Fourth Geneva Convention, Article 42: Article 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.
If any person, acting through the representatives of the Protecting Power, voluntarily demands internment, and if his situation renders this step necessary, he shall be interned by the Power in whose hands he may be.
Fourth Geneva Convention, Article 43: Article 43. Any protected person who has been interned or placed in assigned residence shall be entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose. If the internment or placing in assigned residence is maintained, the court or administrative board shall periodically, and at least twice yearly, give consideration to his or her case, with a view to the favourable amendment of the initial decision, if circumstances permit.
Unless the protected persons concerned object, the Detaining Power shall, as rapidly as possible, give the Protecting Power the names of any protected persons who have been interned or subjected to assigned residence, or who have been released from internment or assigned residence. The decisions of the courts or boards mentioned in the first paragraph of the present Article shall also, subject to the same conditions, be notified as rapidly as possible to the Protecting Power.
Fourth Geneva Convention, Article 78: Article 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.Decisions regarding such assigned residence or internment shall be made according to a regular procedure to be prescribed by the Occupying Power in accordance with the provisions of the present Convention. This procedure shall include the right of appeal for the parties concerned. Appeals shall be decided with the least possible delay. In the event of the decision being upheld, it shall be subject to periodical review, if possible every six months, by a competent body set up by the said Power.
Protected persons made subject to assigned residence and thus required to leave their homes shall enjoy the full benefit of Article 39 of the present Convention.
- 15.
Only references to other paragraphs in the Judgment have been omitted.
- 16.
Al-Jedda Judgment, supra n. 3, para 107.
- 17.
It should also be noted that the Al-Jedda Judgment only determined that the relevant article of the European Convention on Human Rights was not displaced by UN Security Council resolution 1546 because the language of the latter was not sufficiently clear and precise. The Court did not pronounce on whether the resolution could have prevailed over the ECHR even if those requirements had been met, which is by no means a given. As already mentioned, the Court also did not explicitly opine on whether Article 103 of the UN Charter is triggered only when a state’s conflicting obligations under another international instrument are in conflict with its obligations under the Charter (i.e. a Chapter VII resolution), or whether authorizations are also covered by the operation of Article 103. See Milanovic 2012.
- 18.
Al-Jedda Judgment, supra n. 3, para 107. Even though Al-Jedda was in fact interned when the armed conflict in Iraq was non-international in character, the legal regime applied to his detention by the UK as a result of UN Security Council Resolution 1546 was that prescribed by the Fourth Geneva Convention, an issue which the Court did not contest in para 107.
- 19.
Idem.
- 20.
Idem.
- 21.
Third Geneva Convention, Article 4.
- 22.
AP I, Article 43 (2).
- 23.
Third Geneva Convention, Article 21.
- 24.
Judicial review under the domestic law of the detaining State could be sought to obtain the release of a POW who is detained despite the end of active hostilities. As mentioned further below, that is a grave breach of IHL.
- 25.
Third Geneva Convention, Article 5.
- 26.
See commentary to Article 45 (1) of AP I on the nature of a ‘competent tribunal’ under Article 5 of the Third Geneva Convention in: Sandoz, Swinarski and Zimmermann 1987, para 1745.
- 27.
Third Geneva Convention, Article 118.
- 28.
Third Geneva Convention, Article 119.
- 29.
Third Geneva Convention, Articles 109 (1) and 110.
- 30.
Third Geneva Convention, Article 21.
- 31.
AP I, Article 85 (4) (b).
- 32.
Fourth Geneva Convention, Article 27; Articles 41 and 78.
- 33.
The only exception is the relatively rare occurrence of a levée en masse, provided for in Article 4 (6) of the Third Geneva Convention.
- 34.
AP I, Article 51 (1). Given the consequences of civilian direct participation in hostilities it is clearly crucial to avoid broad interpretations. The ICRC’s view on this issue is outlined in Melzer 2009.
- 35.
AP I, Article 51 (2).
- 36.
AP I, Article 51 (3) and AP II, Article 13 (3).
- 37.
Examples of activities that are not direct participation in hostilities but would constitute a serious security threat are the financing of combat operations, general recruitment for combat etc.
- 38.
Fourth Geneva Convention, Article 42 (1).
- 39.
Fourth Geneva Convention, Article 78 (1).
- 40.
Pictet 1958, p. 367.
- 41.
Fourth Geneva Convention, Article 43 (1).
- 42.
Fourth Geneva Convention, Article 78 (2).
- 43.
Fourth Geneva Convention, Articles 41 and 78.
- 44.
Pictet 1958, p. 261 and pp. 368–369.
- 45.
See Garraway 2007, at p. 330.
- 46.
See, for example, Office of the Judge Advocate General (Canada), Law of Armed Conflict at the Operational and Tactical Levels, National Defence Joint Doctrine Manual, B-GJ-005-104/FP-021, 13 August 2001, pp. 16-4, para 1609 (3)(g), available at: http://www.forces.gc.ca/jag/training-formation/index-eng.asp.
- 47.
See, for example, the list of War Crimes under Article 8 of the ICC Statute.
- 48.
Fourth Geneva Convention Article 132; AP I, Article 75 (3).
- 49.
Fourth Geneva Convention, Article 46 and 133 (1).
- 50.
AP I, Article 85 (4) (b).
- 51.
Nowak 2005, para 27.
- 52.
Al-Jedda Judgment, supra n. 3, para 107.
- 53.
Fourth Geneva Convention, Article 132, and AP I, Article 75 (3).
- 54.
Because internment is not akin to trial-related detention, internment conditions, as well as other aspects of internment provided for in the Fourth Convention, are not modelled on the rules governing detention for criminal purposes.
- 55.
Fourth Geneva Convention, Articles 41 and 78.
- 56.
Al-Jedda Judgment, supra n. 3, para 107.
- 57.
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion (1996) I.C.J. Rep. 9, para 25.
- 58.
In its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory the Court made a broader statement about the interplay of human rights law and IHL, reiterating that IHL is the lex specialis to the general law of human rights. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion (2004) ICJ Rep. 136, para 106.
- 59.
Al-Jedda Judgment, supra n. 3, para 99.
- 60.
ECHR, Article 15.
- 61.
See Chatham House and ICRC 2008.
References
Chatham House and ICRC (2008) Report of expert meeting on procedural safeguards for security detention in non-international armed conflict (September 2008), pp 22–23 . Available at http://www.icrc.org/eng/assets/files/other/security-detention-chatham-icrc-report-091209.pdf.
Garraway C (2007) “Combatants”—substance or semantics? In: Schmitt MN, Pejic J (eds) International law and armed conflict: exploring the faultlines. Martinus Nijhoff Publishers, The Hague
Melzer N (2009) ICRC interpretive guidance on the notion of direct participation in hostilities under IHL, ICRC. http://www.icrc.org/eng/assets/files/other/icrc-002-0990.pdf
Milanovic M (2012) Al-Skeini and Al-Jedda in Strasbourg 23. Eur J Int L (forthcoming)
Nowak M (2005) U.N. covenant on civil and political rights, 2nd rev edn. Engel, Germany
Pictet J (ed) (1958) Commentary: Geneva convention IV. ICRC, Geneva
Sandoz Y, Swinarski C, Zimmermann B (eds) (1987) Commentary on the additional protocols of June 8, 1977 to the Geneva conventions of 12 August, 1949. Martinus Nijhoff Publishers, Geneva
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Pejic, J. (2012). The ECtHR’s Al-Jedda Judgment: Implications for IHL. In: Schmitt, M., Arimatsu, L. (eds) Yearbook of International Humanitarian Law 2011 - Volume 14. Yearbook of International Humanitarian Law, vol 14. T.M.C. Asser Press, The Hague, The Netherlands. https://doi.org/10.1007/978-90-6704-855-2_8
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