R (Al Jedda) v Secretary of State for Defence - House of Lords Hearing, October 2007

PIL is acting for a dual British and Iraqi citizen, Hilal Al Jedda, who has been interned in Iraq since October 2004. The Government argues that Mr Al Jedda's right to liberty under Article 5 ECHR is displaced by the applicable regime in Iraq at the time of his arrest, under UN Resolution 1546. The Divisional Court, despite finding that this was a "startling proposition", found in the Government's favour, as did the Court of Appeal in March of this year.

Article 103 of the UN Charter provides that the obligations of Member States shall prevail over their obligations under any other international agreement. Resolution 1546 was made under Chapter VII of the UN Charter, which authorises States to take such action as is necessary to secure international peace and security. Amongst other things, it authorises “internment where necessary for imperative reasons of security in Iraq”. The military considers Mr Al Jedda a threat and claims that his internment is necessary for imperative reasons of security. It has given no evidence to support this claim and has no intention to press criminal charges. Moreover, the Government argues, Mr Al Jedda has no right to liberty under Article 5 ECHR because it has an obligation to intern him which overrides all his other conflicting rights. The Divisional Court and the Court of Appeal so far agree.

The effect of this finding is that the UN Security Council, an unelected, unaccountable body sitting in New York can, without Parliamentary scrutiny or debate, override fundamental human rights, and in particular the right to liberty, that have been entrenched in our constitution since before the Magna Carta. Mr Al Jedda is not by any means the only person to become victim of these powers; around 65 Iraqi nationals are held without charge by UK forces in the same facility (some for nearly three years) and it is estimated that US forces are holding around 13,000 Iraq nationals.

Mr Al Jedda’s appeal was heard in the House of Lords in October 2007 and we are currently awaiting judgment. Counsel are Kier Starmer QC, Richard Hermer and Felicity Williams of Doughty Street Chambers and Christine Chinkin of Matrix Chambers.