CYIL 2011

PAVEL ŠTURMA CYIL 2 ȍ2011Ȏ Representative in Bosnia and Herzegovina also had to be attributed to the United Nations. 52 A different conclusion was reached by the House of Lords in the Al-Jedda case, 53 concerning a claim arising from the detention of a person by British troops in Iraq. The majority opinions referred both to the work of the ILC on the responsibility of international organizations and to the decision of the ECtHR in Behrami and Saramati , but distinguished the facts of the case and concluded that it could not “realistically be said that US and UK forces were under the effective command and control of the UN”. Contrary to the civil and security presences in Kosovo, “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.” 54 Finally, the judgment of the Grand Chamber of the ECtHR in the Al-Jedda case of 7 July 2011 seems to have taken a 180-degree turn from the previous approach followed by the Court in Behrami and Saramati . Instead, it carefully studied the factual situation in Iraq, the relevant resolutions of the Security Council, the decision of the House of Lords, the Hague Regulations of 1907 and the Geneva Convention (IV) of 1949, as well as the relevant case-law of the ICJ, the ECJ and the US Supreme Court, but also the ILC draft Articles on the Responsibility of international organizations and the ILC Report of the Study Group on “Fragmentation of international law” (2006) in respect of Article 103 of the UN Charter. Based on this background, the Court concluded that “the United Nations’ role as regards security in Iraq in 2004 was quite different from its role as regards security in Kosovo in 1999.“ The ECtHR was of the view “that the United Nations Security Council had neither effective control nor ultimate authority and control over the acts and omissions of troops within the Multi-National Force and that the applicant’s detention was not, therefore, attributable to the United Nations. The internment took place within a detention facility in Basrah City, controlled exclusively by British forces, and the applicant was therefore within the authority and control of the United Kingdom throughout.” 55 Moreover, in the same judgment, the ECtHR explained, as to the priority of the obligations under the Charter (Art. 103) over Article 5 of the ECHR, in a clear and convincing manner, that it did not believe that the language used in Resolution 1546 „indicates unambiguously that the Security Council intended to place Member States within the Multi-National Force under an obligation to use measures of indefinite internment without charge and without judicial guarantees, in breach of their undertakings under international human rights instruments including the Convention. (…) In the absence of clear provision to the contrary, the presumption 52 Berić and others v. Bosnia and Herzegovina , Decision on the admissibility of application No. 36357/04 and 24 other applications, 16 October 2007. 53 Decision of 12 December 2007, R. (on the application of Al-Jedda) v. Secretary of State for Defence , [2007] UKHL 58. 54 Ibid., paras. 23-24 (opinion of Lord Bingham of Cornhill). 55 Al-Jedda v. the United Kingdom [GC], Application No. 27021/08, judgment of 7 July 2011, paras. 83-85.

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