Security Detention in International Territorial Administrations: Kosovo, East Timor, and Iraq [1 ed.] 9789004302983, 9789004302990

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Security Detention in International Territorial Administrations: Kosovo, East Timor, and Iraq

Security Detention in International Territorial Administrations: Kosovo, East Timor, and Iraq By

Omer Faruk Direk

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data Direk, Omer Faruk, author. Security detention in international territorial administrations : Kosovo, East Timor, and Iraq / by Omer Faruk Direk.   pages cm  Includes bibliographical references and index.  ISBN 978-90-04-30299-0 (hardback : alk. paper)—ISBN 978-90-04-30298-3 (e-book) 1. Detention of persons. 2. Prisoners of war. 3. Military occupation. 4. Humanitarian intervention 5. United Nations— Peacekeeping forces. 6. Kosovo War, 1998-1999—Law and legislation. 7. Timor-Leste—International status. 8.  Iraq War, 2003-2011—Law and legislation. I. Title.  KZ6495.D57 2015  341.6’5—dc23 2015023026

This publication has been typeset in the multilingual ‘Brill’ typeface. With over 5,100 characters covering Latin, IPA, Greek, and Cyrillic, this typeface is especially suitable for use in the humanities. For more information, please see brill.com/brill-typeface. isbn 978-90-04-30299-0 (hardback) isbn 978-90-04-30298-3 (e-book) Copyright 2015 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. This book is printed on acid-free paper.

Contents Preface ix List of Abbreviations xi Table of Treaties and Other Major International Instruments xiii Table of Case Law xvi 1 Introduction 1 1 Why Examine the Applicability of International Law to Security Detention Issues in the Internationally-administered Territories of Kosovo, East Timor and Iraq? 1 2 The Central Argument of the Book 3 3 The Relevant Complex Legal Questions 4 4 Methodology 12 5 The Structure of the Book 14 2 Responsibility in Peace Support Operations: Revisiting the Proper Test for Attribution of Conduct and the Meaning of the Effective Control Standard 16 1 Introduction 16 2 The Current Legal Framework for Attribution of Conduct in Peace Support Operations 17 3 Revisiting the Proper Test for Attribution of Conduct in Peace Support Operations 22 4 Dual Attribution of Conduct and Plurality of Responsibility in Peace Support Operations 24 5 Conclusion 39 3 Norm Conflict under Security Council Decisions and Human Rights Law 41 1 Introduction 41 2 Internal and External Reviews of Security Council Resolutions 42 3 The Kadi and Yusuf Judgments of the European Court of Justice and the Idea of a Separate Legal Order 43 4 The Al-Jedda Judgment of the UK House of Lords 45 5 Interpretation of the Applicable Security Council Resolutions 47 6 The ECtHR’s Response to Norm Conflict Issues in Al-Jedda 48 7 The Stipulation that Clear Language be Used 50 8 Discretion as to the Means of Choice 52 9 Conclusion 55

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4 Appraising Extraterritorial Human Rights Obligations in a Post-conflict Environment: Security Detainee Cases in the Context of UN-authorised Military Missions 58 1 Introduction 58 2 The Relationship between Jurisdiction and State Responsibility 59 3 Extraterritorial Jurisdiction in Human Rights Law 65 4 The Relationship between the Concept of Jurisdiction in Human Rights Law and Public International Law 69 5 The ECtHR’s Approach to Extraterritorial Jurisdiction after Bankovic 74 6 The ECtHR’s Judgment in Al-Skeini 82 7 Identifying the Proper Methodology 91 8 Conclusion 95 5 The Complex Relationship between International Humanitarian Law and International Human Rights Law and Its Implications for Security Detention Cases in UN-authorised Security Missions 97 1 Introduction 97 2 The Historical Background of the Relationship between IHL and IHRL 97 3 Developments in the Jurisprudence of International Judicial Bodies 99 4 Positions Adopted in Legal Literature 101 5 A Reflection on the Relationship between IHL and IHRL 106 6 The Interplay between IHL and IHRL in the Context of UN-authorised Missions 107 7 Conclusion 117 6 Security Detention Practices during the International Territorial Administration of Kosovo 119 1 Introduction 119 2 The Background to the Kosovan Case 120 3 Transitional Territorial Administration in International Law 121 4 UNMIK and the Detention of Civilians in Kosovo 132 5 The Compatibility of Security Detention by KFOR with Human Rights Law 136 6 Lessons Learned from Detention Practices in Kosovo 139 7 Conclusion 144

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7 Security Detention Practices during the International Territorial Administration of East Timor 146 1 Introduction 146 2 The Background to the East Timorese Case 147 3 The Security Detention Practices of INTERFET and the Law of Occupation 150 4 UNTAET’s Security Detention Practices and Human Rights Law 162 5 Conclusion 170 8 Security Detention Practices during the International Territorial Administration of Iraq 172 1 Introduction 172 2 The Background to the Iraqi Case 174 3 The Coalition Provisional Authority and Its Security Detention Policies 179 4 MNF and Its Policy and Practices of Security Detention 198 5 Conclusion: Lessons Learned from Iraq 214 9 Conclusion 217 1 Overview 217 2 Apportionment of Responsibility in UN Peace-Support Operations 217 3 Norm Conflict Issues 220 4 Extraterritorial Application of Human Rights Treaties 221 5 The Relationship between International Humanitarian Law (IHL) and International Human Rights Law (IHRL) 223 6 Lessons Learned from Security Detention Practices on the Ground 225 7 The Future of International Territorial Administration 228 Bibliography 231 Index 247

Preface This book is produced from my PhD research. Therefore, I must acknowledge the support that I had when writing the thesis. Even though PhD theses are based on self-research, they require support and contribution from many others. Otherwise, it is undoubtedly quite difficult to complete such a demanding research. I have clearly witnessed this when undertaking my own research, which must be mentioned here in details. To begin with, I am sincerely thankful to the Turkish Ministry of Education. The Ministry generously funded my LLM and PhD studies in the UK, as well as meeting my living expenses throughout. I am also grateful to the Turkish Education Office based in London. The staff members of the Office have patiently dealt with the problems I faced during my studies in the UK. Finding a worthwhile PhD topic is a big challenge for post-graduate students. At the time and shortly after my LLM studies, I had great difficulty in deciding on a subject to research on at PhD level. In this respect, I would like to express my deep sense of gratitude to Prof. Robert McCorquodale. Though I was keen on exploring application of international law to post-conflict situations, his advises were so helpful in mapping out the framework of my research. I must also thank to Prof. Penny Green and Prof. Susan Marks for leading me in ending up with this research topic. Very special thanks must go to my supervisor, Dr. Yutaka Arai-Takahashi, for his steadfast encouragement and support. My thesis examined the application of international law in highly complex context. I could keep on track only with Yutaka’s expert guidance. Otherwise, the end result of the research would have been precarious. Apart from the quality of his supervision, Yutaka has always been so kind, supportive and friendly. I feel very much lucky to have known him. Many thanks are also due to Prof. Sigrun Skogly and Prof. Wade Mansell, who acted as the examiners in my viva voce. Their comments were so helpful in publishing my thesis as a book. I cannot fail to mention Mr. Dylan Williams and Ms. Lynn Risbridger, the staff-members at the Postgraduate Office, either. They have made all efforts to ease my studies at Kent. During my traineeship in the European Court of Human Rights, I had a chance to discuss my research with some persons working in the Court. This in turn significantly added to the depth of my comprehension and scholarly analy­sis of relevant issues. Therefore, I am extremely grateful to Judges Ineta Ziemele, Egbert Myjer, Ayşe Işıl Karakaş, Christos Rozakis, and the Deputy Registrar, Michael O’Boyle. I also owe much to Prof. Charles Garraway and

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Mr. Richard Pregent, who did not hesitate to share their experience of having worked in a post-conflict environment in a polite and friendly manner. Mention must also be made of friends and colleagues. Without them my PhD could be so lonely. I am profoundly grateful to Dr. Karen Openshaw for proofreading my thesis in a time when she was so busy with her own work and life. But more than that, I feel so lucky to have such a friend. I must say the same for Dr. Patrick Terry. I am thankful to him especially for his critical thoughts on this research. I am also deeply indebted to Dr. Kadir Baş, Dr. Nusret Çetin, Dr. Latif Taş, and Mr. Halil Oruç. The discussions that we had in what we called “the Communist Café”, the cafeteria of the Institute of Education, really helped me to view my thesis from different angles. I would like to warmly thank to Mr. Emrah Aktürk as well. I met him on the first day I commenced studying law as an undergraduate in University of Istanbul. Since then, he has been my best friend, and supported me tremendously in times of writing this thesis. My close friends coming from Turkey to study in the UK on the same basis I did also deserve a mention. However, I apologise for not being able to include their names specifically, since I could not prefer one to another. But I certainly owe much to all of them. Last but not least, I am most thankful to my wonderful family: my father, my mother, my brothers and sisters, my grandparents, my aunts, my uncles and their wives. Apart from enduring my absence impressively, they have been extremely encouraging and supportive during my studies abroad. Therefore, this book is dedicated to each member of my family, as well as to security detainees who were maltreated by foreign actors operating in Kosovo, East Timor and Iraq.

List of Abbreviations AmCHR American Convention on Human Rights API Additional Protocol I CCCI Central Criminal Court of Iraq CIDT Cruel, Inhuman and Degrading Treatment COMINTERFET Commander of International Force East Timor COMKFOR Commander of Kosovo Force CFI Court of First Instance CPA Coalition Provisional Authority CRRB Combined Review and Release Boards DARIOs Draft Articles on Responsibility of International Organisations DMU Detainee Management Unit DRC Detention Review Commission FRY Federal Republic of Yugoslavia ECHR European Convention on Human Rights ECJ European Court of Justice ECtHR European Court of Human Rights EU European Union FDC Force Detention Centre FRETLIN Frente Revolucionária de Timor-Leste Independente GCIV Fourth Geneva Convention HRC Human Rights Committee IAEA International Atomic Energy Agency ICCPR International Covenant on Civil and Political Rights ICJ International Court of Justice ICRC International Committee of the Red Cross ICTR International Criminal Tribunal for Rwanda ICTY International Criminal Tribunal for the Former Yugoslavia IHL International Humanitarian Law IHRL International Human Rights Law ILC International Law Commission IMF International Monetary Fund INTERFET International Force East Timor JDC Joint Detainee Committee JRC Judicial Review Committee KFOR Kosovo Force KUHAP Criminal Procedural Code of Indonesia

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list of abbreviations

KUHP Penal Code of Indonesia LEGAD Legal Advisory Body MCR Magistrate Cell Review MNB KFOR Regional Commanders MNF Multi-National Force MNFRC Multi-National Force Review Committee MRT Moldovan Republic of Transnistria NATO North Atlantic Treaty Organisation ONUC United Nations Operation in the Congo OSCE Organization for Security and Co-operation in Europe RTS Radio Television Serbia SOFA Status of Forces Agreement SRSG Special Representative of the Secretary-General TCL Tactical Coordination Line TCNs Troop Contributing Nations TIF Theatre Internment Facility UK United Kingdom UKHL United Kingdom House of Lords UN United Nations UNAMET United Nations Mission to East Timor UNAMI United Nations Assistance Mission for Iraq UNCIVPOL United Nations Civilian Police UNFICYP United Nations Peacekeeping Force in Cyprus UNMIK United Nations Mission in Kosovo UNMISET United Nations Mission of Support in East Timor UNMOVIC United Nations Monitoring, Verification and Inspection Commission UNOSOM United Nations Operation in Somalia UNPROFOR United Nations Protection Force UNSC United Nations Security Council UNSCOM United Nations Special Commission UNTAET United Nations Transitional Administration in East Timor US United States

Table of Treaties and Other Major International Instruments 1 Treaties Agreement between the Republic of Indonesia and the Portuguese Republic on the Question of East Timor, 5 May 1999, UN Doc. S/1999/513 Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5, available at: http://www.unhcr.org/refworld/docid/ 3ae6b3b04.html [accessed 7 May 2015] Convention on the Elimination of all Forms of Discrimination against Women, Dec 18 1979, 1983 ATS No 9; 19 ILM 33 (CEDAW) (signed for Australia July 17 1980. Entry into force for Australia Aug 27 1983) available at: http://www2 .ohchr.org/english/law/cedaw.htm [accessed 7 May 2015] International Committee of the Red Cross (ICRC), Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 12 August 1949, 75 UNTS 287, available at: http://www.unhcr.org/refworld/ docid/3ae6b36d2.html [accessed 7 May 2015] International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3, available at: http://www.unhcr.org/refworld/docid/3ae6b36b4.html [accessed 7 May 2015] International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, 1125 UNTS 609,  available at: http://www.unhcr.org/refworld/docid/3ae6b37f40 .html [accessed 7 May 2015] International Conferences (The Hague), Hague Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land, 18 October 1907, available at: http://www .unhcr.org/refworld/docid/4374cae64.html [accessed 7 May 2015] League of Nations, Covenant of the League of Nations, 28 April 1919, [1919] UKTS 4 (Cmd. 153)/ [1920] ATS 1/ [1920] ATS 3 available at: http://www.unhcr.org/ refworld/docid/3dd8b9854.html [accessed 7 May 2015] Treaty between Australia and the Republic of Indonesia on the Zone of Cooperation in an Area between the Indonesian Province of East Timor and

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table of treaties and other major international instruments

Northern Australia, 11 December 1989, ATS No 3, 29 ILM 469 (‘Timor Gap Treaty’) UN Convention on the Law of the Sea, December 10, 1982, Article 85, 1833 UNTS 3, available at: http://treaties.un.org/pages/ViewDetailsIII.aspx?&src= TREATY&mtdsg_no=XXI~6&chapter=21&Temp=mtdsg3&lang=en [accessed 7 May 2015] UN General Assembly, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, United Nations, Treaty Series, vol. 1465, v1465 UNTS p. 85, available at: http://www.unhcr.org/ refworld/docid/3ae6b3a94.html [accessed 7 May 2015] UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol. 1577, UNTS 3; 28 I.L.M. 1456(1989) p. 3, available at: http://www.unhcr.org/refworld/docid/3ae6b38f0.html [accessed 7 May 2015] UN General Assembly, International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965, United Nations, Treaty Series, vol. 660, p. 195, available at: http://www.unhcr.org/refworld/docid/3ae6b3940 .html [accessed 7 May 2015] UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171, 999 UNTS 171 and 1057 UNTS 407 / [1980] ATS 23 / 6 ILM 368 (1967) available at: http:// www.unhcr.org/refworld/docid/3ae6b3aa0.html [accessed 7 May 2015] UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 16 December 1966, United Nations, Treaty Series, vol. 993, p. 3, 993 UNTS 3/ [1976] ATS 5/ 6 ILM 360 (1967) available at: http://www.unhcr.org/ refworld/docid/3ae6b36c0.html [accessed 7 May 2015] UN General Assembly, Rome Statute of the International Criminal Court (last amended January 2002), 17 July 1998, A/CONF. 183/9, 2187 UNTS 90/37 ILM 1002 (1998)/[2002] ATS 15, available at: http://www.unhcr.org/refworld/ docid/3ae6b3a84.html [accessed 7 May 2015] United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, available at: http://www.unhcr.org/refworld/docid/3ae6b3930.html [accessed 7 May 2015] United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty Series, vol. 1155, p. 331, 1155 UNTS 331, available at: http:// www.unhcr.org/refworld/docid/3ae6b3a10.html [accessed 7 May 2015] The Security Agreement is available at http://graphics8.nytimes.com/packages/pdf/world/20081119_SOFA_FINAL_AGREED_TEXT.pdf [accessed on 7 May 2015]

table of treaties and other major international instruments

2

xv

Other Major International Instruments

Report of the Sub-Commission on Prevention of Discrimination and Protection of Minorities on its Forty-sixth Session, Commission on Human Rights, 51st Sess., Provisional Agenda Item 19, at 4, U.N. Doc. E/CN.4/1995/116 (1995) (Declaration of Turku), Turku/Abo 2 December 1990 UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), available at: http://www.unhcr.org/refworld/docid/ 3ae6b3712c.html [accessed 7 May 2015] UN Security Council, Statute of the Special Court for Sierra Leone, 16 January 2002, available at: http://www.unhcr.org/refworld/docid/3dda29f94.html [accessed 7 May 2015] 1993 Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY Statute), SC res. 827, UN SCOR 48th sess., 3217th mtg. at 1–2 (1993); 32 ILM 1159 (1993) 1994 Statute of the International Criminal Tribunal for Rwanda (ICTR Statute), S.C. Res 955, U.N. SCOR, 49th Sess., U.N. Doc. S/RES/955 (1994)

Table of Case Law 1

The Case-Law of International Tribunals and the Monitoring Bodies of Human Rights Treaties

1.1 European Court of Human Rights Al-Adsani v. the United Kingdom [GC], no. 35763/97, ECHR 2001-XI Al-Jedda v. United Kingdom (App No 27021/08) ECHR 07 July 2011 Al-Saadoon and Mufdhi v. the United Kingdom (Application no.61498/08) ECHR 04 October 2010 Al-Skeini and Others v. the United Kingdom (Application no. 55721/07) ECHR 7 July 2011 Assanidze v. Georgia (Application no. 71503/01) ECHR 2004-II Bankovic and Others v. Belgium and Others (Application no. 52207/99) ECHR 12 December 2001 Behrami v. France, Saramati v. France, Germany and Norway (App No 71412/01 & 78166/01) ECHR 2 May 2007 Belilos v. Switzerland (App No 10328/83) ECHR 29 April 1988 Bosphorus Hava Yollari v. Ireland (App No. 45036/98) ECHR 30 June 2005 Botten v. Norway (App No 16206/90) ECHR 19 February 1996 Chiragov and Others v. Armenia (Application no. 13216/05) ECHR 14 December 2011 Cyprus v. Turkey (Judgment) (Application no. 25781/94) ECHR 10 May 2001 Drozd and Janousek v. France and Spain, (Application no. 12747/87) ECHR Garcia Alva v. Germany (App No 23541/94) ECHR 13 February 2001 Hussein v. Albania and Others, (Application no. 23276/04) ECHR 14 March 2006 Ilaşcu and Others v. Moldova and Russia (Application no. 48787/99) ECHR 8 July 2004 Ireland v. United Kingdom (Series A, No. 25) (18 January 1978) ECHR Isaak v. Turkey (Application no. 44587/98) ECHR 28 September 2006 Isayeva, Yusupova and Bazayeva v. Russia (Application nos. 57947/00, 57948/00, 57949/00) ECHR 24 February 2005 Issa and Others v. Turkey (Application no. 31821/96) ECHR 16 November 2004 Ivantoc and Others v. Moldova and Russia (Application no. 23687/05) ECHR 15 November 2011 Kawka v. Poland (App No 33885/96) ECHR 27 June 2002 Keenan v. The United Kingdom, (App. No. 27229/95) (2001) ECHR Lietzow v. Germany (App No 24479/94) ECHR 13 February 2001 Loizidou v. Turkey (Merits) (Application no. 15318/89) ECHR 18 December 1996 Loizidou v. Turkey (Preliminary Objections) (Application no. 15318/89) ECHR 23 March 1995

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Mangouras v. Spain (Application no. 12050/04) ECHR 28 September 2010 Medvedyev and Others v. France (Application no. 3394/03) ECHR 29 March 2010 Ocalan v. Turkey (Application no. 46221/99) ECHR 12 May 2005 Pad and Others v. Turkey (Application no. 60167/00) ECHR 2007-VI Peers v. Greece (App. No. 28524/95) (19 April 2001) ECHR Poltoratskiy v Ukraine (App. No. 38812/97) (29 April 2003) ECHR Salman v. Turkey (App. No. 21986/93) (27 June 2000) ECHR Schops v. Germany (App No 25111/94) ECHR 13 February 2001 Selmouni v. France, (App. No. 258003/94) (1999) ECHR Suheyla Aydin v. Turkey (App. No. 25660/94) (24 May 2005) ECHR 1.2 General Court of the European Union and European Court of Justice C-402/05 P and C-415/05 P Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities, European Court of Justice [2008] ECR I Case T-228/02 Organisation des Modjahédines du Peuple d’Iran v. European Council [2006] ECR II Case T-315/01 Kadi v. Council and Commission, 2005 E.C.R. II-3649 C-584/10 P, C-593/10 P and C-595/10 P Yassin Abdullah Kadi v. Commission and United Kingdom, European Court of Justice [2013] ECR II Case T-327/03 Al-Aqsa v. European Council [2007] ECR II Case T-47/03, Sison v. European Council [2007] ECR II Chafiq Ayadi v. Council of European Union, Judgment of the Court of First Instance, T-253/02 1.3 Human Rights Committee Human Rights Committee, Concluding Observations: United Kingdom of Great Britain and Northern Ireland (30 July 2008) UN Doc. CCPR/C/GBR/CO/6 Human Right Committee, ‘General Comment No. 13 on Administration of Justice (Article 14)’ (1984) U.N. Doc. HRI/GEN/1/Rev.1 Human Rights Committee, ‘General Comment 29 on States of Emergency (Article 4)’ (2001) U.N. Doc. CCPR/C/21/Rev.1/Add.11 Human Rights Committee, ‘General Comment 31 on the Nature of the General Legal Obligation Imposed on States Parties to the Covenant’ (2004) CCPR/C/21/Rev.1/Add.13 Celiberti de Casariego v. Uruguay, (1979) Human Rights Committee (No 52/1979 and 56/1979) D.A. Cámpora Schweizer v. Uruguay (12 October 1982) 86 Human Rights Committee (No. 66/1980)

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Dragan Dimitrijevic v. Serbia and Montenegro Human Rights Committee, Communication No. 207/2002, U.N. Doc. CAT/C/33/D/207/2002 (2004) Gridin v. Russia, No. 770/1997, Human Rights Committee, U.N. Doc. CCPR/ C/69/D/770/1997 (2000) Lopez Burgos v. Uruguay (1981) Communication No. R.12/52, U.N. Doc. Supp. No. 40 (A/36/40) Sayadi and Vinck v. Belgium, Communication No. 1472/2006, Human Rights Committee, CCPR/C/94/D/1472/2006 1.4 International Court of Justice Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia) (Provisional Measures) [1993] ICJ Reports 325 Case Concerning Armed Activities on the Territory of the Congo (The Republic of Congo), ICJ 19 December 2005 Case Concerning East Timor (Portugal v Australia), Judgment of 30 June 1995, the ICJ Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt (Advisory Opinion, 20 December 1980) [1980] ICJ Rep 89 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), (Advisory Opinion of 21 June 1971), ICJ Reports 1971 Legal Consequences of the Construction of a Wall (Advisory Opinion) [2004] ICJ Legality of the Use of Nuclear Weapons (Advisory Opinion, 8 July 1996) [1996] ICJ Rep 226 Question of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. United Kingdom) (Provisional Measures) [1992] ICJ Rep 114 Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion, 11 April 1949) [1949] ICJ Rep 4 1.5 International Criminal Tribunal for Former Yugoslavia Prosecutor v. Delalic and Others (Judgment of Appeals Chamber) ICTY 20 February 2001, IT-96-21-A Prosecutor v. Delalic and Others (Judgment of Trial Chamber) ICTY 16 November 1998 Prosecutor v. Dusco Tadic (Decision on the Defence Motion for Interlocutory Appeal and Jurisdiction) ICTY 94-1-T (2 October 1995) Prosecutor v. Furundzija (Judgment) ICTY IT-95-17, 1-T (10 December 1998)

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1.6 Inter-American Commission of Human Rights Inter-American Commission of Human Rights, Victor Saldano v. Argentina (1999) Report No. 38/99 Inter-American Commission of Human Rights Abella v. Argentina (1998), Report No. 55/97, OEA/Ser.L/V/II.98, doc. 6rev Inter-American Commission of Human Rights, Avilán v. Colombia (1998) Report No. 26/97, OEA/Ser.L./V/II.98, doc. 6rev Inter-American Commission of Human Rights, Coard v. United States (1999) Report No. 109/99, OEA/Ser.L./V/II.106 doc. 6rev 1.7 Inter-American Court of Human Rights Inter-American Court of Human Rights Bámaca Velásquez Case (25 November 2000) Inter-American Court of Human Rights Cantoral Benavides v. Peru, Judgment, Series C No. 69 (18 August 2000) Inter-American Court of Human Rights Juan Carlos Abella v. Argentina 13 April 1998 Inter-American Court of Human Rights Las Palmeras Case (4 February 2000) 2

National Case-Law

2.1 Israel HCJ 466/86, Abu Bakr v. Judge of the Military Court in Shechem, 40 (3) 2.2 Netherlands Judgment of 10 September 2008, case No. 265615/HA ZA 06–1671, English translation available at http://zoeken.rechtspraak.nl (last accessed on 7 May 2015) Judgment of 5 July 2011, available at http://zoeken.rechtspraak.nl (last accessed on 7 May 2015) 2.3 United Kingdom Ahmed and Others v. Treasury [2010] UKSC 2 Al-Skeini v. Secretary of State [2004] EWHC (QB) 2911 Al-Skeini v. Secretary of State [2007] UKHL 26 R. (Al-Jedda) v. Secretary of State for Defence [2006] EWCA Civ 327 (Court of Appeal) R. (Al-Jedda) v. Secretary of State for Defence [2005] EWHC Civ 1809 (Administrative Court) R (on the application of Al-Jedda) v Secretary of State for Defence (2007) UKHL 58

CHAPTER 1

Introduction 1

Why Examine the Applicability of International Law to Security Detention Issues in the Internationally-administered Territories of Kosovo, East Timor and Iraq?

The evolution of international law has been an extremely dynamic process, with the rapidly changing nature of the global order posing significant challenges to its development. In his keynote speech delivered at the International Law Association’s (British Branch) Spring Conference in Nottingham in 2012, Sir Daniel Bethlehem provided an impressive summary of the various legal issues emanating from contemporary international affairs.1 He particularly raised the need to deal with the following problems: (i) determining the normative content of law in an era in which new sources of international law have emerged; (ii) formulating new legal rules, and reinterpreting old ones, in the light of recent developments; (iii) the problematic interaction between different areas of international law; and (iv) the relationship between law and legitimacy. In examining the applicability of international law to the detention of individuals for reasons of security in the internationally-administered territories of Kosovo, East Timor and Iraq, this book deals with virtually all of these difficult issues. The founders of the United Nations, mindful of the tragic legacy of the first half of the twentieth century, sought to construct a system that would constrain sovereign aggression and prevent further atrocities and grave human rights violations. Responding to violent conflict has, therefore, always been a fundamental concern of the UN. Initially, the UN adopted a humanitarian approach, such as delivering aid to war-torn zones under Chapter VI of the UN Charter. However, the changing nature of the international order has led to a major shift in the UN’s attitude. With the end of the Cold War, in particular, the UN began to adopt a broader approach in its interventions in such conflicts. It has undertaken various forms of initiative,2 but one approach has been 1  Details of the conference can be found at (last accessed on 7 May 2015). 2  Christine Gray, ‘The UN and the Use of Force’ in Christine Gray (ed.), International Law and the Use of Force’ (Oxford: Oxford University Press, 2004), 209.

© koninklijke brill nv, leiden, ���5 | doi ��.��63/9789004302983_002

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especially prominent: the UN has started to directly administer or authorise multinational administrations of post-conflict territories. The phenomenon of international territorial administration is not new. It became well-established after World War One, when it took the form of the mandate and trusteeship system. After the Cold War ended, the Security Council used its Chapter VII powers to create transitional administrations that were directly administered by the United Nations, such as the United Nations Mission in Kosovo (UNMIK) and the United Nations Transitional Administration in East Timor (UNTAET). It has also empowered a group of states with broad authority similar to that conferred on these UN administrations, such as the Coalition Provisional Authority (CPA) in Iraq. In both types of situation, the Security Council has found it necessary to deploy international security forces, such as the Kosovo Force (KFOR) in Kosovo, the International Force for East Timor (INTERFET), and the Multi-National Force in Iraq (MNF), to support those administrations. Equipped with these broad powers, the international entities concerned have carried out several activities in these post-conflict territories. Detaining civilians for imperative reasons of security became one of their most common practices.3 While the security forces directly imposed detention orders on individuals, the transitional administrations principally engaged with security detention issues through the use of their legislative powers. However, the relevant practices of both types of entity have raised significant problems under international law and have resulted in much controversy. Their actions have lacked clarity and have caused considerable uncertainty. Furthermore, these entities, which had been deployed with the object of preventing the perpetration of grave atrocities, themselves became implicated in violations of international law, particularly through the infringement of individual persons’ human rights.4 Considering how vulnerable the populations of such administered territories were to abusive conduct on the part of foreign actors, undertaking an examination of legal issues relating to security detention issues in internationally-administered territories has been undoubtedly worthwhile. 3  Bruce Oswald, ‘The Law on Military Occupation: Answering the Challenges of Detention during Contemporary Peace Operations’ (2007) 8 Melbourne Journal of International Law 311. 4  Amnesty International concluded that a number of human rights violations had occurred in connection with detentions in Kosovo. See Amnesty’s report ‘Serbia and Montenegro (Kosovo): The Legacy of Past Human Rights Abuses’ for further information, and see also its report on East Timor: ‘Justice Past, Present and Future’ (2001), in which Amnesty documents various human rights infringements perpetrated by UN forces, including arbitrary detention, carried out in the name of maintaining law and order and strengthening security.

Introduction

3

However, this has not been an easy task. International law is not well-suited to dealing with the problems that arise from security detention practices in a post-conflict environment. There is no branch of international law that is specifically applicable to internationally-administered territories or to forces operating under the auspices of the UN.5 This, in turn, has created a gap that needs to be filled—that is, the application of international law to this area is in urgent need of clarification. 2

The Central Argument of the Book

This book argues that an attempt at such clarification gives rise to two major research questions. The first relates to the problem of responsibility. The international missions conducted in post-conflict territories have relied on contributions from various actors. For example, a group of states and other international organisations, such as the North Atlantic Treaty Organisation (NATO), may be put in charge of security operations by the Security Council acting under the Chapter VII powers of the UN Charter. If a violation of international law occurs, how are these actors, separately or concurrently, to be held responsible? The second problem concerns what standards of legal protection are to be afforded to individuals detained for reason of security. These two questions in turn implicate several complex and inter-connected legal issues, reflecting the concerns raised by Sir Daniel. Trying to answer any of the questions comprehensively would entail examining a number of vast areas of international law, each of which could form the basis of a separate book. For example, when attempting to determine the relevant human rights standards to be applied in a post-conflict environment, this book discusses the relationship between international humanitarian law (IHL) and international human rights law (IHRL). However, a thorough consideration of how to construct a more coherent relationship between these two branches of international law would undoubtedly merit a research project in its own right.6 In view of this, the modest contribution made by this book is to critically examine several complicated legal questions (that also have political and policymaking dimensions), in order to illuminate the application of international law in a specific context: namely, in regard to cases involving the detention of individuals for 5  Chris Faris, ‘The Laws of Occupation and Human Rights: Which Framework Should Apply to United Nations Forces?’ (2005) 12 Australian Journal of International Law 57. 6  As an example, see Nancie Prud’homme, ‘Lex Specialis: Oversimplifying a More Complex and Multifaceted Relationship?’ (2007) 40 Israel Law Review 355.

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reasons of security undertaken in the internationally-administered territories of Kosovo, East Timor and Iraq. The book also seeks to discover what lessons can be learned from the security detention practices that have been carried out in these three post-conflict territories. 3

The Relevant Complex Legal Questions

There are several pertinent legal issues that need to be explored for the purposes of this research project. Only the most important ones are discussed below. 3.1 The Problem of Responsibility in UN-authorised Missions As explained above, one of the main research questions that this book addresses concerns the issue of how responsibility for a wrongful act under international law is to be apportioned amongst the various actors contributing to an international mission in a post-conflict territory. The difficulty is particularly acute in situations involving military entities. Establishing and maintaining a security presence in such territories entails complex structural and diplomatic arrangements involving the Security Council and UN member states and/or other international organisations The collective security system provided for in the UN Charter—particularly as set out in Article 43 of the Charter—requires the deployment of national forces under the direct and exclusive control of the Security Council.7 However, this arrangement has never been implemented in practice.8 As an alternative, the Security Council has delegated its Chapter VII powers to member states or other international organisations. Consequently, determining where responsibility for an action lies in the context of such a complex structure is difficult. It is even more complicated in cases where the Security Council delegates its power to another international organisation, since the latter entity may then call upon its own members to contribute troops (TCNs) to the Council-authorised mission. In Kosovo, for example, the Security Council delegated the operational command 7  Article 43(1) of the Charter reads as follows: “all Members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security.” 8  Dan Sarooshi, The United Nations and the development of Collective Security: The Delegation by the UN Security Council of its Chapter VII Powers (Oxford: Oxford University Press, 2000), 145.

Introduction

5

of the military mission to NATO, and national troops of several states then operated under NATO’s command. The cases of Behrami and Saramati, decided by the European Court of Human Rights (ECtHR), are especially important in any discussion of the issue of responsibility in UN-mandated military operations.9 Both arose out of incidents that took place during the UN administration of Kosovo. In Behrami, the father of two children, one of whom was killed and the other seriously injured by the explosion of an undetonated bomb, alleged that France had failed to fulfil its obligation of de-mining the area (French soldiers having been responsible for the de-mining operation in question).10 Saramati, meanwhile, concerned the internment of the applicant for reasons of security, and resulted in the applicant lodging claims against various states.11 In dealing with the complaints, the European Court in Strasbourg held that de-mining the area where the incident took place was the duty of UNMIK, whilst the detention of Mr. Saramati was authorised by the KFOR Commander (COMKFOR). In its conclusion, the Court found that UNMIK was a subsidiary organ of the UN,12 and KFOR deployed by the Security Council under Chapter VII of the UN Charter.13 It therefore declared the applicants’ complaints inadmissible on the ground that the UN, and not the respondent states, bore responsibility for the actions complained of. However, the ECtHR’s reasoning in Behrami and Saramati has been harshly criticised by international lawyers and academics. The Court’s rationales, especially in the Saramati decision, were based on Sarooshi’s theory of delegation.14 To what extent is the theory of delegation relevant to determinations of responsibility in UN peace-support operations?15 It has been widely argued that, rather than invoking the concept of delegation, the Court should instead have relied on the International Law Commission’s (ILC) Draft Articles

9  Behrami v. France, Saramati v. France, Germany and Norway (App No. 71412/01 & 78166/01) ECHR 2 May 2007. (Hereinafter: Behrami and Saramati). 10  Ibid., see paras. 5–7. 11  Ibid., paras. 8–17. 12  Ibid., para. 142. 13  Ibid., para. 141. 14  Dan Sarooshi, supra n. 8. 15  Marko Milanovic & Tatjana Papic, ‘As Bad as It Gets: The European Court of Human Rights’ Behrami and Saramati Decision and General International Law’ (2009) 58 International and Comparative Law Quarterly 267; Keir Starmer, ‘Responsibility for Troops Abroad: UN Mandated Forces and Issues of Human Rights Accountability’ (2008) 13 European Human Rights Law Review 318.

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on Responsibility of International Organisation (DARIOs).16 If this alternative were the case, how could DARIOs be applied to the Behrami and Saramati case? Would their application to UN-authorised operations be straightforward? DARIOs now include, inter alia, provisions envisaging dual or multiple attributions of conduct and a plurality of responsibility without the requirement of attribution.17 However, the ILC’s latest Commentary on DARIOs cites the relationship between TCNs and KFOR as a possible example of dual or multiple attributions, as well as a plurality of responsibility. How is this possible? The Al-Jedda judgments delivered by the UK House of Lords and the ECtHR also represent landmark decisions concerning the problem of apportioning responsibility in the context of UN peace-support operations, further complicating this issue and raising important additional questions, especially in regard to the relationship between these cases and Behrami and Saramati18 Were the cases of Al-Jedda and Behrami/Saramati substantially dissimilar, as claimed by the House of Lords? To what extent is the ECtHR’s judgment, imputing Mr. Al-Jedda’s internment to the UK, reconcilable with its earlier decision in Behrami/Saramati? All these questions make it necessary to investigate whether or not the relevant case-law and major documents dealing with the apportionment of responsibility in UN-authorised missions are clear from controversy. Is there an ongoing quest as to the proper test for attribution of conduct in peace support operations (the concept that also encompasses the UN-authorised missions) and the meaning of the ‘effective control’ standard arguably as the legal basis for dual attribution of conduct to multiple actors involved in the commission of a single conduct? 3.2 Norm Conflict Issues As well as the problem of apportionment of responsibility between the UN and TCNs, another salient issue in the context of UN-authorised missions relates to ‘norm conflict’. Member states providing troops to peace-support operations face conflicting obligations under international law. On the one hand, they are bound by their human rights obligations; on the other, the UN Charter requires 16  Marko Milanovic & Tatjana Papic, ibid.; Alexander Orakhelashvili, ‘R (On the Application of AL-Jedda) (FC) v. Secretary of State for Defence: UK House of Lords Judgment on Relationship between UN Security Council Resolution Authorising Detention in Iraq and European Convention on Human Rights’ (2008) 102 American Journal of International Law 337. 17  See, for instance, ILC Report 2011, Commentary Chapter II, para. 4. 18  R (on the application of Al-Jedda) v Secretary of State for Defence (2007) UKHL 58 (Al-Jedda); Al-Jedda v. United Kingdom (App No. 27021/08) ECHR 07 July 2011.

Introduction

7

them to follow and implement the decisions of the Security Council. Article 25 of the Charter states that: the Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter. What if a Security Council obligation for member states conflicts with the obligations of member states under other international treaties? Article 103 of the Charter states that: 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. The application of Article 103, however, has been quite problematic. No clear consensus exists as to how this provision is to be interpreted in practice. The relevant legal literature and regional court decisions dealing with norm conflict issues have offered divergent views. Dapo Akande argues that the UN Charter enjoins the Security Council to respect human rights norms when undertaking its duties. Under this reasoning, the Security Council cannot require member states to act in contravention of human rights norms, and Article 103 would, consequently, not be applicable, as there would be no conflict of obligations.19 The House of Lords noted this in Al-Jedda, finding that the UK government was, in fact, faced with a conflict between its obligations under human rights law and those that applied under the relevant Security Council resolution. It held that the Security Council has the power to qualify or displace the member states’ human rights obligations, but did not elaborate on the extent to which the Council could change those obligations.20 Dealing with similar questions, the ECtHR argued that since the UN Charter obliges the Security Council to respect human rights norms, the Security Council must use explicit language in its resolutions if it intends any derogation from human rights and other norms of international law.21 Yet another argument, advanced by 19  Dapo Akande, ‘The Security Council and Human Rights: What is the Role of Art. 103 of the Charter?’ (2003). 20  Al-Jedda, UK House of Lords (n. 18). 21  Al-Jedda, the ECtHR (n. 18), para. 102. See also Marko Milanovic, ‘Norm Conflict in International Law: Whither Human Rights?’ (2009) 20 Duke Journal of Comparative & International Law 69, 97–98; Sayadi and Vinck v. Belgium, Communication No. 1472/2006, Human Rights Committee, CCPR/C/94/D/1472/2006, para. 2.3.

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the European Court of Justice, is that the Community’s legal order amounted to a separate and autonomous regime, and that it therefore had the power to review all Community acts, irrespective of whether or not they stemmed from a Security Council resolution.22 Which of these various approaches, if any, is the correct one? Has the ECtHR, in its Al-Jedda and Nada judgments, devised a useful way of tackling norm-conflict issues, and what impact will its decisions have on future cases? 3.3 Extraterritorial Application of Human Rights Treaties The above discussion centred on finding the responsible actor for an alleged human rights violation that occurred during a UN peace-support operation. This book argues that the conduct leading to an alleged violation must be attributable to states or international organisations to which Chapter VII power of the Security Council has been delegated. In arriving at this conclusion, the Al-Jedda judgment of the ECtHR, in spite of its problematic reasoning, can be said to represent good law.23 However, after finding that the conduct complained of by the applicant was attributable to the UK, the European Court in Strasbourg applied Article 5 of the European Convention on Human Rights (ECHR)—enshrining the right to liberty—as it stands, without qualification. In contrast, this book contends that, when applied in an extraterritorial context, human rights norms cannot be applied to their full extent.24 However, evaluating the extent of states’ human rights obligations in a post-conflict environment is not an easy exercise, and undoubtedly poses a challenge for international law—one that requires the development of new principles and strategies. There has been an increasing tendency to circumscribe the scope of human rights norms in respect of states’ activities in extraterritorial contexts. However, in relation to military operations carried out under the auspices of the Security Council, this element of extraterritoriality tends to be ignored, and most discussions instead focus on the question of attribution. It is, however, arguably important to take into account the fact that forces participating in security 22  C-402/05 P and C-415/05 P Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities, European Court of Justice [2008] ECR I, para. 286. 23  Al-Jedda, (n. 21), para. 86. 24  Krieger notes that the same stance was taken by the German Constitutional Court. Heike Krieger, ‘A Conflict of Norms: The relationship between International Humanitarian Law and Human Rights Law in the ICRC Customary Law Study’ (2006) 11 Journal of Conflict and Security Law 265, 285.

Introduction

9

missions are operating outside their national boundaries when assessing the human rights obligations of TCNs, and this issue is examined by way of a critical discussion of the relationship that obtains between state responsibility, attribution and jurisdiction. Arguing that the way in which extraterritorial jurisdiction is conceptualised has an effect on the material scope of states’ human rights obligations,25 this book explores the extensive jurisprudence of the ECtHR, with a particular emphasis on the Bankovic and Al-Skeini cases, as well as decisions of other international judicial bodies, in order to gain an understanding of how the issue of jurisdiction in an extraterritorial setting is regarded and dealt with.26 Concluding, in relation to cases of security detention in the context of UN-authorised military operations that TCNs’ human rights obligations tend to be modified in such circumstances, the book goes on to propose the proper methodology and strategy that can be used in assessing what the extent of those limitations should be. In Al-Jedda, the ECtHR acknowledged that derogation could be a possibility in relation to extraterritorial state activities.27 Is this of help in determining how far the rights contained in the ECHR can be said to extend outside national boundaries? Is any attenuation of states’ human rights obligations in extraterritorial situations to be linked strictly with the adoption of measures of derogation? Arguably, regardless of whether or not derogation has been invoked, the extent of a state’s human rights obligations should be assessed according to the individual circumstances of the case in which the violation is alleged to have occurred.28 This in turn involves making use of other rules of international law, particularly the law of occupation, since this is the only area of international law that addresses issues arising in a post-conflict environment. However, the concurrent application of human rights norms involving the right to liberty and similar ones that form part of the law of occupation raises another difficult issue, and points to the complex and difficult relationship between IHL and IHRL. 25  Hugh King, ‘The Extraterritorial Human Rights Obligations of States’ (2009) 9 Human Rights Law Review 521, 538. 26  Bankovic and Others v. Belgium and Others (Application no. 52207/99) ECHR 12 December 2001; Al-Skeini and Others v. the United Kingdom (Application no. 55721/07) ECHR 7 July 2011. 27  Al-Jedda, ECtHR, (n. 18), para. 100. 28  Francoise Hampson, ‘The Relationship between International Humanitarian Law and Human Rights Law from the Perspectives of a Human Rights Treaty Body’ (2008) 90 International Review of the Red Cross 549, 564.

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The Relationship between International Human Rights Law and the Law of Occupation Attempting to forge closer links between IHRL and IHL is hardly a new endeavour. Since the inception of the UN system, bringing together these two areas of international law has been viewed as a desirable goal, and recent jurisprudence of the International Court of Justice (ICJ) has intensified the debate on the nature of the relationship that exists between IHRL and IHL. In its Nuclear Weapons,29 Wall30 and Congo31 cases, the ICJ advanced three main propositions relating to the interaction between these two areas: (i) human rights law can be applied to situations of armed conflict and occupation, (ii) human rights can be derogated from, and (iii) when IHL and IHRL are both applicable, the former is the lex specialis.32 However, the ICJ’s reasoning in relation to these issues was not clear. Nor has it proved easy to apply the Court’s findings in practice.33 Consequently, how can a more productive relationship between IHRL and IHL, with their different objectives, be achieved? Is the principle of lex specialis cited by the ICJ the proper rule to apply in dealing with the complex relationship that obtains between these two systems? If not, what other options are available to deal with the uncertainty left by the ICJ? More importantly, how can IHL and IHRL be applied concurrently in the context of UN-authorised missions? Trying to decipher the nature of the general relationship that exists between IHL and IHRL is difficult enough; however, examining the association between these two branches of international law in the context of UN-authorised operations is even more complicated. With regard to armed conflicts and occupations, it is at least recognised that both IHRL and IHL are formally applicable, and therefore the main question is how best to establish the necessary linkages between these two branches of law. In the context of military operations conducted at the behest of the Security Council, however, whether or not the law of occupation, as the most relevant part of IHL, can formally be applied constitutes a difficult question, and must be addressed before any interaction between IHL and IHRL can be considered. 3.4

29  Legality of the Use of Nuclear Weapons (Advisory Opinion, 8 July 1996) [1996] ICJ Rep 226, para. 25. 30  Consequences of the Construction of a Wall (Advisory Opinion) [2004] ICJ, para. 106. 31  Case Concerning Armed Activities on the Territory of the Congo (The Republic of Congo), 19 December 2005. 32  Francoise Hampson, (n. 28), 550. 33  Ibid., 571.

Introduction

11

In addition, applying the law of occupation to UN-mandated forces requires different emphases, depending on the circumstances of the case. For example, any discussion of KFOR in Kosovo needs to consider how occupation is actually to be defined, whereas the situation of MNF in Iraq raises the question of when an occupation can truly be said to have come to an end. In both cases, whether and to what extent the Security Council has the power to set aside or modify the application of the law occupation, must be explored. These complicated issues have a decisive impact on the interplay between IHRL and the law of occupation in the context of UN-authorised military missions. The Application of International Law to International Territorial Administrations The aim of this book is to examine security detention issues that have arisen in the post-conflict administrations of Kosovo, East Timor and Iraq. As explained above, there are, in essence, two types of actors that the UN has empowered to administer these territories: one military and one civil. Consequently, as well as the part played by military forces, the role played by civil entities in relation to security detention issues needs to be examined. Furthermore, in respect of identifying the relationship that exists between the law of occupation and IHRL in the case of UN-authorised missions, this book suggests that regard ought to be given to the specific context in which detentions for imperative reasons of security are imposed. This means it is important to examine the actual security detention practices of the interim administrations in Kosovo, East Timor and Iraq. Before that, however, it is necessary to deal with the preliminary question of how international law can be applied to such entities. There may be different types of territorial administration, depending on the legal basis for their creation under the UN Charter,34 which consequently affects the legal framework applicable to each kind of administration. The primary aim of this book is to analyse cases of direct administration of territories by the UN. The major corpus of international law applicable to UN civil administrations includes human rights law and the law of occupation. As for the applicability of the former law, the UN administrations in Kosovo and East Timor were created and directly run by the Security Council acting under Chapter VII of the UN Charter. Since the Council itself is bound to respect human rights when undertaking its duties,35 human rights law a fortiori limits

3.5

34  The legal bases for international territorial administration can be found in particular in Chapters VI, VII and XII of the UN Charter. 35  See Article 1(3) and Article 55(c) of the UN Charter.

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the power of entities established by virtue of a Security Council resolution. Furthermore, the UN administrations in Kosovo and East Timor explicitly recognised the application of human rights law to their missions.36 As regards the application of the law of occupation, whether and to what extent the Security Council can exempt its transitional administrations from the scrutiny of this branch of IHL, must be explored. This book also examines the administration of Iraq, even though it was not an administration overseen by the UN, because the Security Council granted the CPA vast powers comparable to those granted to UNMIK and UNTEAT.37 In addition to that the unique circumstances seen in Iraq offer both an example for comparison as well as significant lessons about security detention issues related to the mass detention of Iraqis by the MNF and several legislative instruments enacted by the CPA as a result. The application of international law to the Iraqi situation depended on the question to what extent the Security Council has the power to derogate from the law of occupation,38 which stipulates that the occupying power preserve the status quo in the occupied territory. However, Security Council Resolution 483 authorised the CPA to make a number of fundamental changes in Iraq. This raises the question whether the Security Council possessed the power to do this, and whether it intended to qualify the law of occupation as it was applied in Iraq. These actions in Iraq, in turn, raise further questions about the extent to which the law of occupation can permit the introduction of transformative changes in an occupied territory and what implications such changes have for security detainees.39 4 Methodology The aim of this research is to clarify the application of international law to cases of security detention that arose during the international territorial administrations of Kosovo, East Timor and Iraq. It seeks to address both black 36  UNMIK Regulation 1999/24, Section 1.3; Section 2 of UNTAET Regulation 1999/1. 37  Brett H. McGurk, ‘Revisiting the Law of Nations Building: Iraq in Transition’ (2004–2005) 45 Virginia Journal of International Law 451, 459; Carsten Stahn, The Law and Practice of International Territorial Administration (Cambridge: Cambridge University Press, 2008), 368. 38  Marten Zwanenburg, ‘Existentialism in Iraq: Security Council Resolution 1483 and the Law of Occupation’ (2004) 86 International Review of the Red Cross 745. 39  Adam Roberts, ‘Transformative Military Occupation: Applying the Laws of War and Human Rights’ (2006) 100 American Journal of International Law 580.

Introduction

13

and grey holes in international law. The former concerns the absence of rules that are specially designed to deal with this type of situation, while the latter refers to the ambiguity and uncertainty that surrounds the legal norms that may be viewed as relevant to this area. Hence, the object of this book is to contribute to the understanding and development of this specific branch of international law. As a document-based and doctrinal piece of research, this book involved a comprehensive analysis of several primary sources, such as the landmark jurisprudence of international judicial bodies, particularly those of the ECtHR, relevant provisions of international treaties, different works of the UN International Law Commission, and decisions of international organisations, especially relevant Security Council and General Assembly resolutions. While most of these legal sources are established law, some of them may not have a legally-binding character. However, in examining them, a categorisation as to whether they are established or soft law was not made. The focus was rather on their relevance to the specific subject discussed. For instance, when exploring allocation of responsibility in UN peace support operations, DARIOs, which do not have a binding nature due to their unclear status in customary international law, were of great relevance and help. That said, further explanation about the nature of some particular sources is provided when necessary. The project also entailed a critical examination of academic works devoted to the complex legal issues enumerated above. Special regard was had to those incorporating an in-depth survey of security detention practices in three postconflict territories (Kosovo, East Timor and Iraq) in order to discover what lessons can be learned from them. Rather than relying on any type of quantitative method, the book instead gathered the necessary information on security detention issues in these post-conflict territories from a variety of sources. It relied extensively on the documents and reports of non-governmental organisations, such as Amnesty International,40 as well as those produced by regional organisations, such as the Organisation for Security and Co-operation in Europe, which is mandated with overseeing institution- and democracy-building, as well as promoting human rights and the rule of law in Kosovo, and which has published several helpful reports setting out the nature of detention policies in that particular post-conflict territory.41 40  See, for instance, Amnesty International’s report ‘Iraq: Memorandum on Concerns Relating to Law and Order’ (July 2003) MDE 14/157/2003. 41  As an example, see Organisation for Security and Co-operation in Europe (OSCE), Department of Human Rights and Rule of Law, Legal System Monitoring Section, ‘Review of the Criminal Justice in Kosovo: Reforms and Residual Concerns’ (1999–2005).

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A detailed examination of regulations enacted by military and civil bodies in relation to security detention cases was also carried out. For instance, KFOR Directive 42 included several provisions setting forth the legal basis for a security detention and the nature of the mechanism by which detainees could have their detentions reviewed. Furthermore, special regard was had to the publications of military lawyers, who discussed their own experiences of the military missions operating in these three territories.42 Relying on the above wealth of information, this project examines the security detention practices of civil and military entities placed in charge of the transitional administrations in Kosovo, East Timor and Iraq under international law. It deals not only with the extent to which their actions conformed to international law, but also investigates how the relationship between corresponding rules of IHL and IHRL on the right to liberty should be construed in a post-conflict context. In particular, it examines how the more specific rules of the law of occupation could inform general IHRL norms. Arguing that the clarification of international law in the context of security detention cases during the course of post-conflict administrations is more than a matter of simply interpreting the relevant rules of international law in a sophisticated way, this book has sought in particular to unearth any other contextual factors that might adversely affect security detention issues. In other words, it does not aim to develop just a legal perspective. Since such an approach would be insufficient to grasp the full and real picture, the book also attempted to understand and take into account the operational realities when construing the rules of international law pertaining to security detention in a post-conflict environment. 5

The Structure of the Book

Since this book deals with several complex and interconnected legal questions, ensuring that it has a coherent and logical structure has been something of a challenge. For example, when examining apportionment of responsibility in UN peace-support operations, one has to discuss both Behrami/Saramati and Al-Jedda, the former concerning the internment of a civilian in Kosovo, and the latter centring on the detention of an individual in Iraq. It is also necessary, however, to consider these judgments again in the context of the specific case studies focusing on Kosovo, East Timor and Iraq, in order to gain a full appreciation of the security detention practices in question. 42  Robert M. Chesney, ‘Iraq and the Military Detention Debate: Firsthand Perspectives from the Other War, 2003–2010’ (2011) 51 Virginia Journal of International Law 549.

Introduction

15

The difficulty in organising the structure of the book has emerged especially in respect of the application of the law of occupation to civil and security entities deployed in post-conflict administrations of Kosovo, East Timor and Iraq. Examinations of the applicability of this corpus of international law to such actors require dealing with different, but overlapping, legal questions. The law of occupation, if considered applicable, may have different modalities in the context of UN administrations and the post-conflict administration of Iraq. For this reason, instead of allocating a uniformed chapter specifically designed to examine the application of the law of occupation, this book adopts the approach whereby the application of this body of law is analysed separately in the context of each type of administration or actor. The substantive analyses in the subsequent chapters start with Chapter 2, which deals with apportionment of responsibility in UN peace support operations. Chapter 3 examines states’ conflicting obligations under Chapter 3 Security Council decisions and human rights law. This is followed by Chapter 4 which explores the extent of the human rights obligations that should be placed on states contributing troops to UN-mandated security missions. Chapter 5 critically examines the application of human rights treaties and the relationship between IHRL and IHL in extraterritorial settings. Chapters 6, 7 and 8 critically discuss security detention practices in, respectively, the internationally-administered territories of Kosovo, East Timor and Iraq. All these substantive analyses will culminate in the concluding chapter setting out what lessons can be learned from the foregoing in relation to security detention issues.

CHAPTER 2

Responsibility in Peace Support Operations: Revisiting the Proper Test for Attribution of Conduct and the Meaning of the Effective Control Standard 1 Introduction The main type of the United Nations security missions that falls under the ambit of this book is the UN-authorised operations. Accordingly, this chapter is aimed at discussing the apportionment of responsibility in missions of this kind. Yet, for a proper understating of the issue, it takes a wider approach and examines the allocation of responsibility in peace support operations. Peace support operations have been an important tool in maintaining international peace and security. This sort of operation includes ones directly operated by the United Nations (UN) and those carried out by states or other international organisations authorised by the Security Council under the Chapter VII of the UN Charter. Both UN peacekeeping and UN-authorised missions involve complex structural and diplomatic arrangements. In peacekeeping operations, the operational command rests with the UN, but troop-contributing nations (TCNs) continue to retain some degree of power over their forces. In UN-mandated missions, although the Security Council merely delegates authority, the involvement of another international organisation may result in the deployment of a multilayer mission comprised of an international organisation and its member states, as seen in Kosovo. As a consequence, the attribution of conduct and responsibility in such military missions has become quite problematic and has led to difficult legal questions. The examination of such questions by judicial bodies and institutions or even in the legal literature, however, has raised divergent and controversial views. Therefore, the

*  This chapter was published as a separate journal article in the Netherlands International Law Review. See Ömer Faruk Direk, ‘Responsibility in Peace Support Operations: Revisiting the Proper Test for Attribution of Conduct and the Meaning of the “Effective Control” Standard’ (2014) 61 Netherlands International Law Review 1.

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allocation of responsibility in UN peace support operations is—and will continue to be—a troubling subject of international law. This chapter seeks to explore two specific legal questions concerning the allocation of responsibility in peace support operations: (i) what is the proper test for attribution of conduct and (ii) whether and, if so, how dual attribution of conduct as one major way of triggering the multiple attribution of responsibility can be established? It begins with a brief review and critique of the major case law and documents recently dealing with the international law of responsibility. Thereafter, the article makes an assessment of the proper test to be applied both in UN peacekeeping and UN-authorised operations. In the following part, the issue of dual attribution of conduct and multiple (or a plurality of ) responsibility is discussed in depth, together with a thorough analysis of the rulings of the Dutch Courts—particularly that of the Supreme Court of the Netherlands—in cases stemming from Srebrenica. 2

The Current Legal Framework for Attribution of Conduct in Peace Support Operations

Determining the proper test for attribution of conduct in UN peace support operations first requires an analysis of the relevant jurisprudence and international legal documents. Various international legal actors have recently dealt with the issue of attribution and responsibility in the context of peace support operations. The amount of jurisprudence centring on this topic keeps enlarging. The European Court of Human Rights (ECtHR) has been particularly busy with facing the question of attribution due to the increasing involvement of some members of the Council of Europe in such missions. The Strasbourg Court has delivered a number of landmark judgments, which have given rise to a storm of controversy as regards the discussion on attribution of conduct. Its rulings had a notable impact on the judgments or decisions of other judicial bodies tackling the same legal questions. It has been observed that the ECtHR’s treatment of the proper test for attribution of conduct in Behrami and Saramati has produced a serious obstacle for other judicial bodies in straightforwardly applying ‘the effective control’ principle. The International Law Commission (ILC), tasked with the development and codification of international law, has also examined the proper test for the allocation of responsibility in international joint operations in its work on the Draft Articles on Responsibility of International Organisations (DARIOs). DARIOs do not have a binding nature, as their status as customary international law

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remains an issue.1 However, they include several provisions which are crucial to understanding attribution of conduct in peace support operations. As will be shown below, there has been a growing tendency especially to apply Draft Article 7 enshrining ‘the effective control’ principle, which is of great relevance when allocating responsibility in UN peace support operations where states continue to retain some forms of power over their forces. In addition, the ILC framework on the law of international responsibility is important due to its inclusion of some provisions allowing for the establishment of responsibility without the requirement of attribution. That said, this book does not purport to examine in depth each type of case or document depicted above. This has already been done abundantly elsewhere. Such cases and documents will rather be discussed briefly to observe whether there has been a consensus as to the proper test for attribution of conduct. In other words, the discussion will be aimed at questioning whether there is a continuing need to investigate the proper test for attribution of conduct in peace support operations. The cases of Behrami and Saramati, arising out of the acts and omissions of TCNs involved in the UN’s efforts in Kosovo, has been a landmark decision with regard to the attribution of conduct and responsibility in peace support operations.2 The rulings of the ECtHR in Behrami and Saramati has been harshly criticised by international lawyers and academics. The Court has been subjected to wide criticism particularly due to its reliance on the notion of delegation when determining the proper test for attribution of conduct in Saramati. The delegation theory propounded by Sarooshi requires the Security Council to exercise ‘overall command and control’ over forces to which Chapter VII security powers are delegated.3 In Behrami and Saramati, the ECtHR changed this criterion to ‘ultimate control and authority’.4 In the 1   Kristen E. Boon, ‘New Directions in Responsibility: Assessing the International Law Commission’s Draft Articles on Responsibility of International Organizations’ (2011) 37 Yale Journal of International Law 1, 9. 2  Behrami v. France, Saramati v. France, Germany and Norway (App No. 71412/01 & 78166/01) ECHR 2 May 2007, paras. 5–14. For an examination of these cases in depth, see Aurel Sari, ‘Jurisdiction and International Responsibility in Peace Operations: The Behrami and Saramati Cases’ (2008) 8 Human Rights Law Review 151–170; P. Bodeau-Livinec, G. P. Buzzini and S. Villalpando, ‘Agim Behrami & Bekir Behrami v. France; Ruzhdi Saramati v. France, Germany & Norway’ (2008) 102 American Journal of International Law 323, 325. 3  Dan Sarooshi, The United Nations and the Development of Collective Security: The Delegation by the UN Security Council of its Chapter VII Powers (Oxford: Oxford University Press, 2000), 163. 4  It has been argued that “ultimate control and authority” criterion relates to the lawfulness of a delegation rather than to the issue of responsibility, which is a consequence of such

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post-Behrami and Saramati period, lawyers and other judicial bodies have shown a clear tendency to depart from the ‘ultimate control and authority’ criterion. However, the reasoning that they have provided clearly reveals how Behrami and Saramati continue to be a source of confusion in jurisprudence and doctrine. In Al-Jedda, the ruling of the UK House of Lords concerning the extrajudicial detention of the applicant by British forces operating in Iraq,5 the majority of their Lordships held that the governing criterion for determining the attribution of conduct, as agreed by both parties, was ‘effective control’.6 However, when applying this criterion, they made a controversial claim that the factual background of Al-Jedda was quite different from that of Behrami and Saramati.7 The House of Lords might, perhaps, have simply followed the ‘effective control’ test set out in DARIOs if it had not been confronted with the decision in Behrami and Saramati. Indeed, the need to deal with Behrami and Saramati resulted in some glaring discrepancies in their Lordships’ judgments. Lord Bingham, for example, claimed that, in Kosovo, the Security Council delegated its power to the Kosovo Force (KFOR) by empowering it to exercise its functions, whereas, in Iraq, the Security Council was only authorising the multinational force (MNF) to carry out functions which it could not perform itself.8 If so, then it can be argued that, according to his Lordship, in cases of ‘delegation’ the proper test for attribution of conduct is ‘ultimate authority and control’ as established by the ECtHR in Behrami and Saramati, whilst, in cases of ‘authorisation’, the proper test would be ‘effective control’. The situation is further complicated by Lord Brown’s view that there is no distinction between ‘delegation’ and ‘authorisation’ in the context of the collective use of force.9 delegation. Thus, it does not deal with the degree of control exercised over the specific conduct in question. See, Keir Starmer, ‘Responsibility for Troops Abroad: UN Mandated Forces and Issues of Human Rights Accountability’ (2008) 13 European Human Rights Law Review 318, 322; Marko Milanovic & Tatjana Papic, ‘As Bad as It Gets: The European Court of Human Rights’ Behrami and Saramati Decision and General International Law’ (2009) 58 International and Comparative Law Quarterly 267, 277. 5  R (on the application of Al-Jedda) v. Secretary of State for Defence [2007] UKHL 58. 6  Ibid., para. 5. 7  Ibid., paras. 6–23. 8  Ibid., para. 23. 9  The proponents of the delegation theory argue that the terms “authorisation” and “delegation” can in fact be used interchangeably. Erika De Wet, The Chapter VII Powers of the United Nations Security Council (Hart Publishing, 2004), 260; Niels Blokker, ‘Is the Authorisation Authorised? Powers and Practice of the UN Security Council to Authorise the Use of Force by “Coalitions of the Able and Willing” (2000) 11 European Journal of International Law 541, 551.

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Behrami and Saramati created similar confusion in the Al-Jedda judgment of the ECtHR. When Mr. Al-Jedda lodged his complaint in Strasbourg, a difficult problem for the ECtHR was how it would deal with its previous ruling in Behrami and Saramati. The Grand Chamber, which alone has the power to depart from previous decisions and judgments of the Court, followed the judgment of the House of Lords. After concluding that the relevant Security Council resolutions in Kosovo and Iraq were different in terms of the language that they employed and the context in which they were adopted, the Grand Chamber held that the proper test for attribution of conduct was ‘effective control’.10 However, when applying the effective control test to the case in question, the Grand Chamber argued that the Security Council exercised neither ‘effective control nor ultimate authority and control’ over the MNF forces.11 The ECtHR’s conclusion meant that Behrami and Saramati was not overturned. But, more significantly, it highlighted a clear disagreement amongst the Strasbourg judges who participated in the Grand Chamber: that is, Behrami and Saramati even caused confusion within the Court itself. However, it is not the case that Behrami and Saramati is now completely irrelevant. In fact, the Court now has more options when dealing with issues that relate to attribution of conduct. In the future, it will rely on Behrami and Saramati unless, as in Al-Jedda, there is a substantial difference in the factual circumstances of the case. The Special Rapporteur charged with drafting DARIOs also found it necessary to discuss the reasoning of the ECtHR in Behrami and Saramati in relation to the responsibility of international organisations for the conduct of a state or another international organisation.12 The 2011 Commentary clearly distances itself from ‘the ultimate control and authority test’ propounded by the ECtHR in Behrami and Saramati. So far so good. But what it says about the Al-Jedda judgments creates some confusion. As regards Al-Jedda decided by the House of Lords, the Commentary does not only endorse the criterion of ‘effective control’ as the proper test for the attribution of conduct in question, but it also agrees with the view of the majority of their Lordships that the situation of Al-Jedda was different from those of Behrami and Saramati. It holds that the conclusion made by the House of Lords is ‘in line with the way in which the criterion of effective control was intended’.13 It should be recalled that the House of Lords took such an approach so as not to clash with the 10  Al-Jedda v. United Kingdom (App No. 27021/08) ECHR 07 July 2011, para. 84. 11  Ibid., para. 84. 12  ILC Report on its 63rd Session (26 April to 3 June and 4 July to 12 August 2011) UN Doc. A/66/10, (hereinafter: ILC Report 2011), Commentary Article 7, 23, para. 10. 13  ILC 2011 Report, Art. 7, para. 12.

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ECtHR’s decision in Behrami and Saramati. If so, one may even consider the Commentary to be not entirely in disagreement with the ruling in Behrami and Saramati. Furthermore, the Commentary fails to explain why it confirms the ECtHR’s conclusion in Al-Jedda that the applicant’s internment was attributable to the respondent state. There the Strasbourg Court did not solely apply the ‘effective control’ test in reaching that conclusion.14 It rather relied on both the ‘ultimate control and authority’ and ‘effective control’ tests concurrently. The need to deal with Behrami and Saramati in Nada led to a new type of confusion in the jurisprudence of the ECtHR. The Nada judgment does not directly relate to a UN peace support operation. However, it has some elements which are significant to the assessment of attribution of conduct in such missions. The background of the judgment concerns the entry and transit ban imposed on the applicant by Swiss authorities pursuant to the relevant Chapter VII Security Council resolutions creating a ‘sanction regime’ against the Taliban and al-Qaeda.15 The central legal question in the case is about the Swiss Government’s conflicting obligations under the European Convention on Human Rights (ECHR) and Chapter VII Security Council resolutions and, in particular, whether Switzerland enjoyed any discretion in its implementation of such resolutions. In dealing with this question, the Strasbourg Court held that despite the binding nature of the relevant resolutions, the UN Charter, in principle, and the wording of Resolution 1390 concerning the transit or entry ban on listed individuals conferred on Switzerland a certain degree of latitude in following the pertinent Security Council orders.16 The relevance of Nada to the attribution of conduct and responsibility in UN peace support operations relates to how the ECtHR dealt with the question of attribution. Relying on Behrami and Saramati, France, as a third-party intervener and one of the main actors behind the establishment of the sanction regime, raised the issue of attribution. It argued that since Switzerland was carrying out its obligations stemming from Chapter VII Security Council decisions, the disputed measures were to be attributable solely to the UN.17 In response to the French submission, the ECtHR, after confirming its ruling in Behrami and Saramati, distinguished Nada from Behrami and Saramati on the ground that the former case concerns the Swiss implementation of a binding Security Council resolution at the national level and in its own name.18 14  ILC 2011 Report, Art. 7, para. 13. 15  Nada v. Switzerland (App No. 10593/08) ECHR 12 September 2012, paras. 15–25. 16  Ibid., paras. 176–180. 17  Ibid., para. 109. 18  Ibid., para. 120.

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The ECtHR clearly dodged the question of attribution, focusing on whether the disputed measures were carried out within or outside national territories. However, its reasoning in reaching that conclusion adds further confusion and inconsistency to its stance on attribution of conduct in the context of collective security system. According to the Court’s ruling, it is now possible to argue that in a case like Behrami and Saramati, where the member states are given total discretion to choose the means by which they can give effect to binding Security Council decisions, the disputed forms of conduct over which the Security Council has no factual control at all are attributable to the UN. In contrast, in another case (Nada), a Member state which is vested with a very limited discretion in choosing the modality of implementing binding Security Council orders may be held responsible for the measures in question on the mere ground that it implements such measures at home. 3

Revisiting the Proper Test for Attribution of Conduct in Peace Support Operations

The review of the case law and DARIOs shows that despite the increasing trend to apply the test of ‘effective control’, there is ongoing controversy and a lack of clarity about the proper test for the attribution of conduct and responsibility in peace support operations. The jurisprudence of the ECtHR is inconsistent. The Behrami and Saramati case is particularly a source of confusion, and remains an obstacle to the proper understanding and selection of what test is to be applied in the context of peace support operations. Article 7 of DARIOs, which is built on the criterion of ‘factual control over the specific conduct in question’, seems to provide the most suitable legal framework for assessing attribution of conduct in peace support operations. This provision should govern, in particular, peacekeeping operations and multilayer UN-mandated operations where another international organisation is charged with operational command and its member states contribute troops. In other words, it should be applied to international joint operations. As regards operations concerning the delegation of the operational command directly to one member state or a group of states by the Security Council, it is more plausible to apply the state responsibility regime, as set out in the Draft Articles on the Responsibility of States (DARS). The Security Council has no form of control over national troops operating on the ground. In a mission of this kind, as Messineo argues, ‘the conduct of member states carrying out these operations is not the conduct of “organs or agents” of the United Nations, nor is it the conduct of “state organs” which are “put at the disposal” of the

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United Nations’.19 This author argues that the responsibility of the Security Council may be sought in accordance with Draft Article 15, which recognises the possibility of engaging responsibility without the requirement of attribution. However, even if one applies Draft Article 7 to UN-authorised missions, there is still no real possibility to attribute the conduct of member states to the UN, as suggested in Al-Jedda decided by the UK House of Lords.20 In light of the above, the problems currently existing in respect of each category of peace support operations must be discussed separately. As for the UN-authorised missions directly carried out by one or more member states, ‘the distinction approach’ claiming a factual difference between the circumstances of Al-Jedda and Behrami and Saramati continues to be a major source of problems. It has even now started to receive some support in the legal literature.21 However, as already explained in detail elsewhere, there is a certain similarity between the factual backgrounds of these two cases.22 It is not convincing to deal with issues of attribution in the context of UN-authorised missions on the basis of making a comparison with Behrami and Saramati. This is not a firm methodology, and in fact such an approach is mostly taken when courts tend to skirt some legal issues in question.23 What rather ought to be done is to consider whether the mere adoption of a binding decision can or cannot render the Security Council to have some forms of control over the specific disputed conduct. This is what the ECtHR failed to do in Nada. Instead of applying the latter methodology, the Strasbourg Court even introduced a new way of drawing a comparison with Behrami and Saramati: to wit, whether the state conduct is carried out within or outside national territories. The main problem regarding UN peacekeeping or multilayer UN-authorised military missions concerns the apportionment of responsibility amongst various actors involved in the commission of disputed conduct. In such international joint operations, the state providing troops to an international organisation retains a certain degree of power and control over its national 19  See Article 57 of DARS; Francesco Messineo, ‘Things Could Only Get Better: Al-Jedda Beyond Behrami’ (2012) 50 Military Law and the Law of War Review 321, 335. 20  Messineo, ibid. 21  Cedric Ryngaert, ‘Apportioning Responsibility between the UN and Member States in UN Peace-Support Operations: An Inquiry into the Application of Effective Control Standard after Behrami’ (2012) 45 Israel Law Review 151, 174–175. 22  Marko Milanovic & Tatjana Papic (n. 4), 294; Francesco Messineo, ‘The House of Lords in Al-Jedda and Public International Law: Attribution of Conduct to UN-authorized Forces and the Power of the Security Council to Displace Human Rights’ (2009) 56 Netherlands International Law Review 35. 23  Marko Milanovic & Tatjana Papic, ibid., 292.

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contingent. In other words, the receiving organisation does not enjoy exclusive authority over the forces that have been lent to it. These complex operational arrangements, in turn, raise difficult questions relating to dual attribution of conduct and plurality of responsibility. 4

Dual Attribution of Conduct and Plurality of Responsibility in Peace Support Operations

The basic premise with regard to the allocation of international responsibility is that each actor bears responsibility for its own conduct.24 However, due to changes in the international legal order, a need has emerged to depart from this ‘independent’ or ‘individual’ type of responsibility.25 The possibility of dual attribution is one major way to assign responsibility to multiple actors. Yet, no clear consensus exists as to how dual attribution could be possible in practice, especially in the context of peace support operations. Several authors have claimed that dual attribution should not be ruled out when distributing responsibility in joint missions.26 DARIOs also recognise the attribution of conduct to more than one actor.27 On the other hand, it has been argued that the practice of dual attribution is rare. Nollkaemper and Jacobs contend that dual attribution of conduct is not firmly established in international law.28 They add that the framework that DARIOs offer remains underdeveloped and unclear.29 In the alternative, these authors propose ‘shared 24   André Nollkaemper & Dov Jacobs, ‘Shared Responsibility in International Law: A Conceptual Framework’ (2013) 34 Michigan Journal of International Law 359, 381. 25  Ibid. 26  For example, the ECtHR has been criticised for failing to explore the issue of dual or multiple attribution in Behrami and Saramati. Francesco Messineo (n. 22), 40–41; Aurel Sari (n. 2), 159; K. M. Larsen, ‘Attribution of Conduct in Peace Operations: The “Ultimate Authority and Control Test” ’ (2008) 19 European Journal of International Law 509, 521. 27  ILC Report 2011, Commentary Chapter II, page 16, para. 4: “Although it may not frequently occur in practice, dual or even multiple attribution of conduct cannot be excluded. Thus, attribution of a certain conduct to an international organization does not imply that the same conduct cannot be attributed to a State, nor does vice versa attribution of conduct to a State rule out attribution of the same conduct to an international organization. One could also envisage conduct being simultaneously attributed to two or more international organizations, for instance when they establish a joint organ and act through that organ”. 28  André Nollkaemper & Dov Jacobs (n. 24), 383. 29  Ibid.

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responsibility’ as a new concept of the responsibility of multiple actors. This notion is different from dual attribution, and the latter is one—but not the sole—way of giving rise to ‘shared responsibility’. In this light, attaching considerable importance to the possibility of dual attribution in peace support operations, this article seeks to clarify the legal basis for dual attribution of conduct. Since it argues that the proper criterion for determining responsibility with regard to joint operations is ‘effective control’, the article tends to explore mainly the ILC framework on dual attribution and plurality of responsibility. However, the test of ‘effective control’ set forth under Draft Article 7 does not provide clear guidance as to how dual attribution might work in practice.30 How can the conduct in question be imputed to both parties when only one of them exercises effective control over that conduct? Or, can effective control be exercised simultaneously over the same impugned action? If so, where is the borderline that separates the parties’ respective areas of effective control? The situation is further exacerbated by the group of Draft Articles that provide for plurality of responsibility without the requirement of attribution. In view of this, how might dual attribution of conduct work in peacekeeping operations or in other circumstances similar to those that existed between KFOR operated by NATO and TCNs in Kosovo? To answer these questions, it is necessary to analyse what is meant by the phrase ‘effective control,’ and how this relates to the possible application of dual attribution. 4.1 Determining the Legal Basis for Dual Attribution of Conduct The Commentary to Draft Article 7, when dealing with what ‘effective control’ means, mentions a number of different forms of control, such as ‘factual control’, ‘exclusive control’ and ‘operational command and control’. Paragraph 4 of the 2011 Commentary can be seen as the starting point for construing the relationship between these various tests. It states that: The criterion for attribution of conduct either to the contributing State or organization or to the receiving organization is based according to article 7 on the factual control that is exercised over the specific conduct taken by the organ or agent placed at the receiving organization’s disposal. As was noted in the comment by one State, account needs to be taken of the “full factual circumstances and particular context”. 30  André Nollkaemper, ‘Dual Attribution: Liability of the Netherlands for Removal of Individuals from the Compound of Dutchbat’ (2011) 9 Journal of International Criminal Justice 1143, 1154.

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Article 6 of the articles on the responsibility of States for internationally wrongful acts takes a similar approach, although it is differently worded. According to the latter article, what is relevant is that “the organ is acting in the exercise of elements of the governmental authority of the State at whose disposal it is placed”. However, the commentary on article 6 on the responsibility of States for internationally wrongful acts explains that, for conduct to be attributed to the receiving State, it must be “under its exclusive direction and control, rather than on instructions from the sending State”. At any event, the wording of article 6 cannot be replicated here, because the reference to “the exercise of elements of governmental authority” is unsuitable to international organizations.31 A closer reading of the analysis set out in this Paragraph, where the language used is certainly not clear, may be used to construct an argument as to how dual attribution may work in practice. The Special Rapporteur, Mr. Giorgio Gaja, introduces ‘factual control’ exercised over the conduct in question as the requirement that must be fulfilled in order to satisfy the criterion of ‘effective control’, which is the test to be used when an organ of a state or an international organisation is placed at the disposal of another international organisation. However, the inclusion of Article 6 of DARS in the Commentary on Draft Article 7 may be construed as opening the way for dual attribution. The Special Rapporteur’s reference to Article 6 of DARS can be interpreted as encompassing another test set out under Draft Article 7.32 According to the former provision, the conduct of an organ of a state placed at the disposal of another state can be attributed to the latter if the receiving state has ‘exclusive direction and control’ over that organ. In this light, it may be contended that these two concepts (‘factual control’ and ‘exclusive control’) can be applied concurrently to peacekeeping operations, thereby paving the way for dual attribution. This approach is based on the UN’s assumption that it has ‘exclusive control’ over national contingents contributing to peacekeeping operations.33 The UN Legal Counsel has stated that, since a peacekeeping force forms a subsidiary organ of the UN, any act of that force allegedly violating an international obligation that entails the international responsibility of the organisation can 31  ILC Report 2011, 20, para. 4. 32  Caitlin A. Bell, “Reassessing Multiple Attribution: The International Law Commission and the Behrami and Saramati decision” (2010) 42 New York University Journal of International Law and Politics 501, 523. 33  ILC Report 2011, Commentary Art. 7, para. 6.

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be attributed to the UN in principle.34 Furthermore, the UN Secretariat has held that the UN has acknowledged its responsibility vis-à-vis third parties in connection with the acts of peacekeeping forces.35 As Larsen notes, ‘exclusive control’ refers to ‘overall control’ of an operation. It does not concern the specific conduct in question. Therefore, ‘even if the UN claims exclusive command and control over the peacekeeping forces, specific conduct may still be attributable to the TCN if the state has effective control over that conduct’.36 A careful reading of the Commentary to Draft Article 7 shows that the concurrent application of ‘exclusive control’ over the operation and ‘factual control’ over the specific conduct cannot in fact constitute a basis for dual attribution in international joint operations. Paragraph 7 states, inter alia, that ‘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’. TCNs at least retain jurisdiction over their troops in relation to disciplinary and criminal matters.37 This view draws support from the Office of the Legal Affairs of the UN. In relation to the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora, the Office stated that: Since the Convention places the responsibility for enforcing its provisions on the States parties and since the troop-contributing States retain jurisdiction over the criminal acts of their military personnel, the responsibility for enforcing the provisions of the Convention rests with those troop-contributing States which are parties to the Convention.38 The disciplinary power and criminal jurisdiction retained by TCNs, however, cannot mean that national contingents fall completely outside the UN chain of ‘command and control’.39 Rather, the decisive question here is which actor exercises ‘effective control’ over the disputed conduct. The Commission created to investigate the attacks on the personnel of the United Nations Operation in Somalia (UNOSOM II) addressed exactly this point: 34  Ibid. Letter of 3 February 2004 by the United Nations Legal Counsel to the Director of the Codification Division, A/CN.4/545, sect. II.G. 35  Ibid.; A/CN.4/637/Add. 1, sect. II.B.3, para. 3. 36  K. M. Larsen (n. 26), 516. 37  ILC Report 2011, Commentary Art. 7, para. 7. 38  Ibid. 39  ILC Report on its 55th Session (3 May to 4 June and 5 July to 6 August 2004), UN Doc. A/ CN.4/541 (hereinafter ILC Report 2004), Commentary Art. 5, 19, para. 40.

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The Force Commander of UNOSOM II was not in effective control of several national contingents which, in varying degrees, persisted in seeking orders from their home authorities before executing orders of the Forces Command. Many major operations undertaken under the United Nations flag and in the context of UNOSOM’s mandate were totally outside the command and control of the United Nations, even though the repercussions impacted crucially on the mission of UNOSOM and the safety of its personnel.40 If the retention of some powers by TCNs over their contingents means that the UN cannot genuinely exercise ‘exclusive control’ over such forces, then it is doubtful how these two tests can be the basis for dual attribution. Theoretically, there is a slim possibility that, owing to certain political factors, or for reasons of goodwill, the UN, on the basis of ‘exclusive command and control’, may accept responsibility for alleged violations that take place in the course of a peacekeeping operation even though that operation in fact falls under the ‘effective control’ of TCNs. However, such a possibility has been bluntly rejected by the UN, which has refused to accept responsibility unless it has genuinely exercised ‘exclusive command and control’ over a peacekeeping operation, as it did with the United Nations Operations in Congo (ONUC) and the United Nations Peacekeeping Force in Cyprus (UNFICYP).41 Gaja points out that, ‘while it is understandable that, for the sake of efficiency of military operations, the UN insists on claiming exclusive command and control over peacekeeping forces, attribution of conduct should also in this regard be based on a factual criterion’.42 Therefore, it can be argued that the concurrent application of ‘exclusive control’ and ‘effective control’, which is not possible owing to the retention of some powers by TCNs over their troops, cannot function as the basis for dual attribution. It is submitted that the dual attribution of conduct can rather be devised on the basis of the ‘effective control’ test. The UN Secretary-General, in his report on the UN Mission in Kosovo, stated that ‘the international responsibility of the United Nations will be limited in the extent of its effective operational control’.43 His words suggest that the operational command of the UN cannot always be totally effective; it may in certain cases be limited. This point is also reflected in the approach adopted by the ECtHR in its identification of 40  Ibid., para. 40. 41  Ibid., para. 35. 42  ILC Report 2011, Commentary Art. 7, para. 9. 43  S/2008/354, para. 16.

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the relationship between KFOR and TCNs in Behrami and Saramati. The Court asked itself whether the actual or structural involvement of TCNs in operational matters (in this case, the detention of Mr Saramati) undermined the ‘effective operational command’ of KFOR. While the ECtHR concluded that this would not affect the effectiveness of KFOR’s ‘operational command,’44 it can be argued that the degree of power retained by TCNs does in fact put a certain limit on KFOR’s ‘effective operational command’. In its Opinion on Human Rights in Kosovo, the Venice Commission held, inter alia, that: Although brigades are responsible for a specific area of operations, they all fall “under the unified command and control” (UN SC Resolution 1244, Annex 2, para. 4) of Commander KFOR from NATO. “Unified command and control” is a military term of art which only encompasses a limited form of transfer of power over troops. Troop contributing states have therefore not transferred “full command” over their troops. When States contribute troops to a NATO-led operation they usually transfer only the limited powers of “operational control” and/or “operational command”. These powers give the NATO commander the right to give orders of an operational nature to the commanders of the respective national units. The national commanders must implement such orders on the basis of their own national authority.45 The UN Secretary-General has come to a similar point of view in respect of joint peacekeeping operations, stating that 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

44  Behrami and Saramati (n. 2), para. 139. 45  The European Commission for Democracy (Venice Commission), ‘Opinion on Human Rights in Kosovo: Possible Establishment of Review Mechanisms’, Opinion No. 280/2004 (hereinafter: the Venice Commission Report) para. 14. The Report is available at , last accessed on 7 May 2015.

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in each and every case according to the degree of effective control exercised by either party in the conduct of the operation.46 If, according to the Secretary-General, the decisive criterion is ‘the degree of effective control’,47 then the fact that each actor involved in a multilayer mission may enjoy ‘effective control’ to some extent will serve as the basis for possible dual attribution. A similar stance was taken by the Special Rapporteur in the 2004 Report, where he claimed that ‘the extent of effective control’ to be exercised by each party would pave the way for dual attribution of certain conduct.48 Leck adds that ‘the extent of effective control’ should be seen as a suitable basis for dual attribution of conduct, since it also allows establishing the responsibility of actors through their failure to exercise due care in preventing the commission of a disputed conduct.49 But, if effective control refers to ‘factual control’ over the specific conduct in question, then is it possible that more than one party can simultaneously exercise ‘effective control’,50 and, if so, how? In other words, under what circumstances can an impugned conduct be carried out by some or all of the actors concurrently? Application of the Effective Control Test as the Basis for Dual Attribution of Conduct Before examining this question of dual attribution in respect of the same conduct, it is useful to briefly consider the (different and broader) concept of multiple responsibility. The possibility of plural (multiple) responsibility is now included in DARIOs. However, the dividing line between dual attribution of, and plurality of responsibility for, the same conduct is not clear. When discussing the issue of dual attribution in international joint operations, regard must also be had to the possibility of plural responsibility under DARIOs. In other words, the assessment of dual attribution of conduct must be made in connection with the possibility of plurality of responsibility envisaged in relevant DARIOs. 4.2

46  The Secretary-General’s view can be found in ILC Report 2011, Commentary Art. 7, para. 9. 47  Ibid., para. 8. 48  ILC Report 2004, para. 48. 49   Christopher Leck, ‘International Responsibility in United Nations Peacekeeping Operations: Command and Control Arrangements and the Attribution of Conduct’ (2009) 10 Melbourne Journal of International Law 346, 362. 50  André Nollkaemper (n. 30), 1154.

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Draft Article 48 appears, prima facie, to provide a basis for plural responsibility. It stipulates that: ‘Where an international organization and one or more States or other international organizations are responsible for the same internationally wrongful act, the responsibility of each State or organization may be invoked in relation to that act.’ However, the actual wording of the provision, as well as the relevant commentary, shows that Draft Article 48 is not concerned with the way in which responsibility for an act is to be apportioned amongst various actors. Rather, it deals with the implementation of international responsibility in cases where an international organisation is deemed responsible for an internationally wrongful act together with one or more states or other international organisations. That is, for this Article to be applicable, plurality of responsibility for the same wrongful conduct must already have been established. The Commentary to Draft Article 48 confirms this view, and refers to Draft Articles 14–18 (providing for the responsibility of an international organisation in connection with the act of a state) and Draft Articles 58–62 (concerning the responsibility of a state in connection with an act of an international organisation) as the relevant DARIOs dealing with the establishment of joint responsibility.51 The Articles that are particularly pertinent to the case at hand are Draft Articles 15 and 59. Draft Article 15 mainly envisages that an international organisation will be jointly responsible for the commission of a wrongful act by a state or another international organisation if it directs or controls the latter entity. The international organisation is held responsible not because the conduct in question is attributed to it, but rather because of the causal link (direction and control) that connects it with the commission of that conduct by the state or the other international organisation. Draft Article 59 deals with the reverse situation: a state can be held jointly responsible for a wrongful act of an international organisation if it directs or controls the commission of that act. However, this provision opens up the possibility of imputing the same conduct to the state under the law of state responsibility.52 Returning to the issue of dual attribution, it should be noted at the outset that it is extremely difficult to devise clear-cut guidelines to be used in assessing whether the concurrent acts and/or omissions of an international organisation and a state or another international organisation lead to dual attribution in respect of, or multiple responsibility for, the same conduct. The common element in both situations is that the contribution of all the relevant 51  ILC Report 2011, Commentary Art. 48, para. 1. 52  Ibid., Commentary Part 5, para. 2.

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actors forms a coherent whole in the commission of the disputed conduct.53 Therefore, in both cases, the contributors all play a certain role in the occurrence of the conduct complained of. The Kosovo case is a good illustration in point. In this case, KFOR and TCNs engaged in a complex and intertwined relationship. KFOR was an international security mission deployed by NATO, which in turn is a security alliance created by an international treaty signed by several member states that have an active and direct involvement in the organisation’s decision-making process and the operations that it carries out. In respect of NATO’s bombing of Serbia in 1999, for example, the government of the Netherlands stated that It was fully involved in the decision-making process regarding all aspects of the aerial operation, the formulation of the political objectives of the aerial campaign, the establishment of the operational plan on which the campaign was based, the decision concerning the beginning and the end of the operation and the decision concerning the beginning of the various stages.54 While member states retained significant power, at least with regard to the initiation and termination of the mission, on the ground the operational command was exercised by KFOR. Yet, as noted above, the kind of power retained by TCNs over their own troops placed a notable limitation on the effectiveness of KFOR’s operational command and control. In particular, the fact that the national contingents can disregard the order of the KFOR Commander (COMKFOR) when it is deemed to be in their national interests to do so, or to avoid possible breaches of their obligations under international human rights law and humanitarian law, provides a clear example of the constraints that are placed on COMKFOR’s authority. The difficulty of assessing dual attribution and multiple responsibility stems from the problem of how to interpret the acts and omissions of each actor given these facts. The key question is whether the issue of responsibility, in particular the involvement of each actor in the commission of the disputed conduct, should be interpreted broadly or narrowly. For example, Dannenbaum, revising the meaning of the ‘effective control’ test set out in DARIOs, proposes that responsibility in the context of joint peacekeeping operations should be evaluated not on the basis of ‘who gave the orders?’ but according to which actor was better ‘positioned to have acted differently in a way that would have prevented 53  André Nollkaemper & Dov Jacobs (n. 24), 400. 54  ILC 2004 Report, Commentary Part II, 4.

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the impugned conduct?’55 If a national contingent can refuse to comply with the orders of COMKFOR by reason of its own state’s concerns, then one can assume that this is because the commander of the contingent, or even the government of the nation in question, has had the opportunity to appraise the order before deciding whether or not to comply with it. However, when translating this ‘preventative rationale’ into practice, the assessment should not be made on broad grounds. Otherwise, it would lead to almost all impugned conduct being attributed to TCNs for their failure (or omission) to prevent the abuse in question.56 Furthermore, such an approach would imply that COMKFOR was unable ever to make a decision capable of binding a TCN. Thus, the involvement of each actor in the commission of the impugned act must be assessed carefully. In particular, the issue of dual attribution should be conducted within stricter limits, even though it may be tempting, in seeking to provide as much protection as possible for victims of wrongful acts, to opt for a wide interpretation that attributes responsibility for the impugned conduct to as many actors as possible. In this respect, it should be noted that DARIOs now incorporate provisions, namely Draft Articles 15 and 59, which envisage plurality of responsibility without any requirement of attribution. This in turn suggests that an assessment of dual attribution ought normally to be conducted on a narrow basis—otherwise, there would be no reason for adopting provisions that establish multiple responsibility on broader grounds. 4.3 The Srebrenica Cases of the Dutch Courts The recent judgments of the Dutch Courts, concerning the responsibility of the Netherlands for the conduct of its troops at the Dutchbat compound in Srebrenica, provide a good illustration of how the involvement of a state in a multilayer military mission should be construed. Moreover, they have significant implications in identifying and applying the proper criterion for attribution of conduct in international joint operations, in addition to offering a proper understanding of the issue of dual attribution of conduct in such missions. The Srebrenica cases concerned the eviction of four Bosnian civilians from the Dutchbat compound after the UN and the Netherlands decided to evacuate the area and, eventually, the compound itself, following the fall of 55  Karl T. Dannenbaum, ‘Translating the Standard of Effective Control into a System of Effective Accountability: How Liability Should Be Apportioned for Violations of Human Rights by Member State Troop Contingents Serving as United Nations Peacekeepers’ (2010) 51 Harvard International Law Journal 113, 157. 56  André Nollkaemper (n. 30), 1149.

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Srebrenica. After their eviction, all four individuals were killed by Bosnian Serb forces, and their relatives brought the case before a Dutch District Court alleging, inter alia, that the Dutch government bore responsibility for its failure to prevent their deaths. The Court of Appeal quashed the judgment of the District Court attributing the act or omission in question exclusively to the UN.57 The allegations were ultimately dealt with by the Supreme Court of the Netherlands.58 The Supreme Court began its analysis by determining the proper test to assess the responsibility of Dutchbat in the context of a peacekeeping operation. In the cassation appeal, the Dutch State, inter alia, submitted that the Court of Appeal had failed to attribute acts of Dutchbat to the UN under Draft Article 6.59 The Supreme Court, however, fully endorsed the Court of Appeal’s choice of applying Draft Article 7 in assessing whether the disputed conduct of Dutchbat could be imputed to the Netherlands. As discussed above, there is a lack of clarity with respect to the proper test for attribution of conduct in peace support operations. When dealing with this question in its Srebrenica judgments, the Court of Appeal did not confuse itself with the ‘ultimate authority and control’ test and relied on ‘the effective control’ standard. Although the Court of Appeal made a brief note that the circumstances of the Srebrenica cases were different from those of Behrami and Saramati,60 it can be said that the Court’s intention was just to stress that the command and control arrangements between the UN and Dutch commanders took a new form different from the one at the beginning phase of the operation. This is evidenced by its view that at the time of the eviction, the Dutch forces were operating in a transitional period. While its intention to highlight the difficult circumstances prevailing in Srebrenica through making a comparison with Behrami and Saramati was, 57  Court of Appeal of The Hague 5 July 2011, ECLI(=European case law identifier):NL: GHSGR:2011:BR0132 (in Dutch); ECLI:NL:GHSGR:2011:BR5386 (in English) (Mustafić v. State of the Netherlands) and ECLI:NL:GHSGR:2011:BR0133 (in Dutch); ECLI:NL:GHSGR: 2011:BR5388 (in English) (Nuhanović v. State of the Netherlands). The judgments can be found at , paras. 2.1–2.31. 58   Supreme Court (Hoge Raad), State of the Netherlands v. Mustafic et al., ECLI:NL:HR:2013:BZ9228 (Advocate General’s Advisory Opinion: ECLI:NL:PHR:2013: BZ9228); State of the Netherlands v. Nuhanović, ECLI:NL:HR:2013:BZ9225 (Advocate General’s Advisory Opinion: ECLI:NL:PHR:2013:BZ9225). See also the judgments’ publication with a commentary by Cedric Ryngaert. Cedric Ryngaert, ‘Supreme Court (Hoge Raad), State of the Netherlands v. Mustafić et al., State of the Netherlands v. Nuhanović, Judgments of 6 September 2013’ (2013) 60 Netherlands International Law Review 441. 59  Ibid., para. 3.10.1. 60  The Court of Appeal (n. 57), para. 5.11.

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perhaps, not necessary, it is salutary that the Appeal Court’s brief reference to Behrami and Saramati turned out to be completely immaterial to its selection and application of the proper test for attribution of conduct. The Dutch Court employed the ‘effective control’ criterion straightforwardly, and this has been confirmed by the Supreme Court. Once it confirmed the application of ‘the effective control’ criterion, the Supreme Court went on to appraise the State’s submissions concerning the application of this criterion by the Court of Appeal to the present in connection with the question of dual attribution. However, its analysis of these issues—especially that pertaining to dual attribution of conduct—is not clear. Before making some comments on the Supreme Court’s view, it is necessary to briefly examine how the Court of Appeal dealt with the application of ‘the effective control’ principle and conceptualised dual attribution. The Court of Appeal bluntly recognised the possibility of dual attribution.61 It held that ‘the effective control’ test applies to both the ‘hiring international organisation’ and to states placing their troops at the disposal of the international organisation.62 In peacekeeping operations, the operational command rests with the UN but, nonetheless, TCNs continue to retain some degree of 61  The Hague Appeal Court’s approach with respect to dual attribution is so crucial, since the Dutch Court, unlike the ECtHR which delivered its Al-Jedda judgment just two days after the Srebrenica cases, recognised the possibility of dual attribution overtly. In Al-Jedda, the Strasbourg Court, when deciding whether the internment of the applicant could be imputed to the UK, held that: ‘The Court does not consider that, as a result of the authorisation contained in Resolution 1511, the acts of soldiers within the Multi-National Force became attributable to the United Nations or—more importantly, for the purposes of this case—ceased to be attributable to the troop-contributing nations’ (para. 80). The ambiguous language used in the paragraph raises the question whether the ECtHR has recognised the possibility of dual attribution. This author argues that the Strasbourg Court’s unclear statement should be interpreted by taking into account the Court’s analysis of attribution of conduct as a whole. The possibility of dual attribution of conduct is normally aimed at providing greater protection for victims, since it increases the number of actors that may be held responsible for the same act or omission. For instance, in peacekeeping operations, even though an impugned act may be imputable to the UN, it could nonetheless be attributed to a member state through dual attribution. However, it is not tenable to say that the ECtHR had such an intention in Al-Jedda. A reading of the case clearly shows that according to the ECtHR, the internment of the applicant could never be attributed to the UN. The Strasbourg Court was in fact very much determined to impute Mr. Al-Jedda’s detention directly and solely to the UK. So there was no reason for the ECtHR to bother itself with the issue of dual attribution, while it could establish the responsibility of the UK easily and directly. 62  The Court of Appeal (n. 57), para. 5.8.

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power, including the right to withdraw from the mission, taking disciplinary actions and initiating criminal proceedings against their military personnel.63 The judgment suggests that ‘the degree of effective control’ enjoyed by each party is to constitute the legal basis for dual attribution. However, the Appeal Court made it clear that the sharing of such legal powers amongst the UN and states does not automatically lead to the attribution of an impugned conduct to both of them. It held that ‘the decisive criterion for attribution is not who exercised “command and control”, but who actually was in possession of “effective control” ’.64 This argument of the Court can be objected to on the ground that the command and control arrangements certainly have a significant impact on the enjoyment of effective control.65 The Appeal Court’s reasoning should rather be understood as suggesting that the effective control of each actor is to be established by assessing—‘in view of the circumstances of the case’—how that actor is involved in the commission of the specific conduct in question through the use of its legal powers (command and control).66 In other words, the factual control exercised over the specific act or omission by each actor vested with a certain degree of (legal) authority must be the basis for the assessment of dual attribution of conduct. In the cassation appeal, the Dutch State objected to the Appeal Court’s understanding of ‘the effective control’ criterion, and particularly its finding that such a form of control could be exercised by more than one actor simultaneously.67 In contrast, the Supreme Court fully confirmed the ruling of the Court of Appeal. It affirmed the Appeal Court’s finding that Dutchbat’s disputed conduct was attributable to the Netherlands, along with the theoretical possibility that the same conduct could also fall under ‘the effective control’ of the UN. However, the Supreme Court’s reference to Draft Article 48 makes it somewhat unclear on what basis it envisaged the possibility of both the Netherlands and the UN being responsible for Dutchbat’s conduct in question. Had it intended to follow the Appeal Court and to establish the responsibility of both actors on the basis of dual attribution of conduct, then it would have been sufficient to solely rely on ‘the effective control’ test. Indeed, the Supreme 63  Ibid., para. 5.10. 64  Ibid., para. 5.7. 65  Bérénice Boutin, ‘Responsibility of the Netherlands for the Acts of the Dutchbat in Nuhanović and Mustafić: The Continuous Quest for a Tangible Meaning for “Effective Control” in the Context of Peacekeeping’ (2012) 25 Leiden Journal of International Law 521, 528. 66  The Court of Appeal (n. 57), para. 5.9. 67  The Supreme Court (n. 58), para. 3.11.2.

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Court explicitly claimed that Draft Articles 6–9 ‘leave open the possibility of conduct being attributed to an international organisation and a State’.68 But what it then says in the remainder of the same paragraph creates confusion. The Supreme Court added that ‘Article 48(1) DARIO therefore expressly leaves open the possibility of more than one State or organisation being held responsible for the consequence of an internationally wrongful act.’69 Draft Article 48, as Ryngaert argues, does not focus on the consequences of a conduct but rather on the conduct itself.70 In other words, it establishes the responsibility of multiple actors for the same conduct regardless of its consequences. Furthermore, this provision regulates plurality of responsibility more than dual attribution of conduct.71 The former is a broader concept, which can be possible even without the requirement of the attribution of the same conduct to more than one actor. Draft Articles 14–18, for instance, allow for the possibility of an international organisation being held responsible for a conduct of a state without the requirement of the conduct being attributable to both entities. Take the Dutch Advocate General’s—arguably misjudged—views on the simultaneous exercise of ‘effective control’ by the Netherlands and the UN in Srebrenica as another example. In his analysis concerning the application of ‘the effective control’ criterion, he held that this principle included in DARIO 7 regulates only the extent to which an international organisation may be responsible for the acts of its member states.72 When assessing whether the conduct of an organ of a state put at the disposal of an international organisation can be imputed to the latter, it is enough to appraise whether that organisation exercises ‘effective control’ over the specific conduct in question. The absence of such an effective control would automatically trigger the independent responsibility of that state for its own conduct under the law on state responsibility.73 Thus, DARIO 7 assumes the exclusive responsibility of international organisations,74 thereby excluding the possibility of dual attribution.75 Yet, the Advocate General also concludes that when a state and an international organisation exercise ‘parallel control’, both entities should

68  Ibid., para. 3.9.4. 69  Ibid. 70  Cedric Ryngaert (n. 58), 444. 71  Ibid. 72  The Advisory Opinion of the Advocate General (n. 58), para. 4.9. 73  Ibid., para. 4.14. 74  Ibid., para. 4.12. 75  Ibid., para. 4.13.

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incur responsibility.76 Here, the responsibility does not arise on the basis of dual attribution of the same conduct but rather through their own independent conduct resulting in a single harmful outcome.77 In light of the above, it can be argued that in so far as the Supreme Court intended to take a strong approach to the Court of Appeal’s formulation of dual attribution of conduct and establish the responsibility of the Netherlands on this ground, its judgment makes good law. The Court of Appeal’s conceptualisation of dual attribution of conduct resting on the claim that the appraisal of ‘the effective control’ of each actor over the omission or commission of a specific conduct must be treated carefully with regard to the specific context of the case was exemplary.78 On the other hand, if the Supreme Court’s reference to Draft Article 48 means that it chose this provision—alongside Draft Article 7—as the legal basis for dual attribution of conduct, then it clearly failed to distinguish between this notion and multiple attribution of (or plurality of ) responsibility. Dual attribution of conduct is not the only way to establish the latter, and different solutions—as done by Advocate General Vlas in his Advisory Opinion or Nollkaemper and Jacobs with the idea of ‘shared responsibility’—can be advanced within or even outside the ILC framework on the law of international responsibility to establish multiple attribution of responsibility.

76  Ibid., para. 5.14. 77  Cedric Ryngaert (n. 58), 444. 78  A similar approach to that of The Hague Appeal Court was taken by the Venice Commission in its Report on the Human Rights Situation in Kosovo. The Commission held that ‘Acts by troops in the context of a NATO-led operation cannot simply all be attributed either to NATO or to the individual troop-contributing states. There may even be difficult intermediate cases, such as when soldiers are acting on the specific orders of their national commanders which are, however, themselves partly in execution of directives issued by the KFOR commander and partly within the exercise of their remaining scope of discretion.’ The Venice Commission Report, (n. 45), para. 76. Adopting a narrow interpretation of the role of a state or an international organisation, however, does not necessarily mean that the chances of successfully establishing dual attribution are always slim or non-existent. What may rather be suggested is that the extent to which multiple parties are involved in the omission or commission of an impugned conduct through their legal powers vested in them under command and control arrangements ought to be assessed carefully.

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5 Conclusion Attribution of conduct and responsibility in peace support operations, as evidenced by current developments, is, and will continue to be, an important subject of international law. However, the corpus of international law pertaining to this subject is not free from problems and controversy. As the likelihood that individuals may be adversely affected as a consequence of conduct carried out in the context of peace support operations becomes greater, there is a special and ongoing need for a proper understanding of attribution of conduct and responsibility issues. Determining the most suitable criterion for attribution of conduct is one of the main problems related to the allocation of responsibility in peace support operations. In Behrami and Saramati, the ECtHR employed the ‘ultimate control and authority’ test, which led to severe criticism being aimed at the Court for its failure to apply the ‘effective control’ criterion. In the postBehrami and Saramati period, there has been a growing tendency to apply the latter standard.79 While the increasing reliance on the ‘effective control’ test may, prima facie, seem to be an abrogation of the ‘ultimate control and authority’ criterion, this author has argued that Behrami and Saramati still serves as a valid precedent, and that the continuing validity of this case is a source of confusion for both the Strasbourg Court itself and other judicial or nonjudicial bodies. Hence, there is a need to radically disregard and depart from this decision of the ECtHR when dealing with attribution of conduct, as The Hague Court of Appeal—correctly—did in its Srebrenica judgments. Another major problem that ought to be dealt with for a proper understanding of attribution of conduct and responsibility is the concept of dual attribution. In a globalising world, where international organisations are increasingly involved in world governance or states have become more active beyond their own territories-as was the case in Kosovo, East Timor and Iraq-, a regime of dual attribution of conduct and plurality of responsibility is desirable. However, the legal basis for such a possibility in international law is not well founded. This is also the case in peace support operations, particularly in peacekeeping operations. Draft Article 7 has left the meaning of the ‘effective control’ criterion unclear, which is the test to be applied to the assessment of responsibility in peace support operations. While there has been a lack of consensus as to how this standard should be understood in legal literature and jurisprudence, The Hague Court of Appeal and the Supreme Court of the Netherlands— to the extent that the latter did not conflate the notion of dual attribution 79  Cedric Ryngaert (n. 21), 151.

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of conduct with that of (dual or) multiple attribution of responsibility— delivered an exemplary judgment in the cases emanating from Srebrenica. Although they have a domestic character, the Dutch Courts’ rulings, ascribing a broad meaning to the effective control principle and applying it in light of the concrete circumstances on the case at hand, have certainly made a considerable contribution to clarifying the meaning of the ‘effective control’ criterion. As suggested by Boutin, these cases should be a source of inspiration for courts that may be faced with the application of the ‘effective control’ test in the future.80 80  Bérénice Boutin (n. 65), 535.

CHAPTER 3

Norm Conflict under Security Council Decisions and Human Rights Law 1 Introduction In addition to the problem of how responsibility for a wrongful act is to be apportioned between the United Nations and TCNs, the second salient question in the context of multinational UN-authorised missions relates to the issue of norm conflict. In particular, the conflicting obligations of TCNs under Security Council resolutions and the ECHR must be explored. The Al-Jedda and Nada judgments of the ECtHR dealt widely with norm conflict issues. These rulings of the European Court in Strasbourg appear to have had important ramifications in relation to states’ participation in UN peace-support operations.1 The discussion here focuses mainly on Al-Jedda, and Nada is examined only to the extent that it is relevant in this context. In Al-Jedda, once it had imputed the internment of the applicant to the United Kingdom, the ECtHR went on to analyse the British government’s argument that its obligations under Security Council Resolution 1546, including the applicant’s detention for security reasons, prevailed over those stemming from Article 5 of the ECHR by virtue of Articles 25 and 103 of the UN Charter.2 Article 103 states that, ‘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’. Dealing with this argument presented the Court with a great deal of difficulty. It goes without saying, of course, that no clear consensus exists as to how to deal with the issue of norm conflict and particularly the *  This chapter was presented and published in the booklet of the International Security Congress held at Kocaeli University (Turkey) on October 2013. For details see http://www .google.com.tr/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CBoQFjAA&url=htt p%3A%2F%2Fwww.bilgesam.org%2FImages%2FDokumanlar%2F0-2-2014071651uluslara rasi-guvenlik-kongresi-8-9-ekim-2013-v2.pdf&ei=-ZD0U7KpMInYPOT9gOgB&usg=AFQjCNF jdUCWW6_uHSZd6WUoeB2wFSPhmg. 1  Al-Jedda v. United Kingdom (App No. 27021/08) ECHR 07 July 2011; Nada v. Switzerland (App No. 10593/08) ECHR 12 September 2012. 2  Al-Jedda, ibid., para. 91.

© koninklijke brill nv, leiden, ���5 | doi ��.��63/9789004302983_004

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operation of Article 103 in this context. Academic literature and case-law offer a number of different perspectives and recommendations as to how to deal with the problem, and the Court’s response to the UK government’s claim can best be understood after brief recourse has been made to the various solutions that have been put forward, together with a discussion of why these were of so little help to the Court in its consideration of the case. 2

Internal and External Reviews of Security Council Resolutions

An important approach in dealing with the conflicting obligations of states in respect of Security Council decisions and human rights law centres on conducting internal and external reviews of applicable Security Council resolutions. The former concept focuses on the internal validity of Security Council resolutions as viewed from the standpoint of the UN Charter. This approach is propounded by Dapo Akande, who poses two questions: (i) is the Security Council bound by human rights norms when authorising international military missions?; and (ii) are states obliged to apply Security Council resolutions that conflict with human rights norms?3 Article 24(2) of the Charter requires the Security Council to act in accordance with the purposes and principles of the United Nations. Article 1(3), setting forth those principles, explicitly includes respect for human rights and fundamental freedoms. Pointing to these provisions, Akande contends that the Security Council is bound by human rights norms, and Security Council decisions inconsistent with human rights norms would therefore be ultra vires. If this is the case, then the next issue that falls to be considered is whether ultra vires decisions can create obligations for member states. Answering this question in the negative, Akande concludes that, since there is no conflict of obligations, Article 103 would not be applicable.4 It is difficult to envisage the ECtHR simply adopting Akande’s methodology. As it made clear in its decision in Behrami and Saramati, the Court does not feel able or willing to carry out such a review, since, it believes, this would risk undermining the effectiveness of UN military operations aimed at creating and maintaining international peace and security. Or, to put it differently, the

3  Dapo Akande, ‘The Security Council and Human Rights: What is the Role of Art. 103 of the Charter?’, available at , last accessed on 7 May 2015. 4  Ibid.

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Court could not so easily disregard the Chapter VII obligations of UN member states. In addition to Akande’s ‘internal review’ process, checking the external validity of Security Council resolutions constitutes another option when dealing with norm conflict issues. It is now well established that there exists in international law a number of norms of such fundamental importance that no derogation from them is permitted. Should a conflict arise between one of these jus cogens norms and a treaty obligation, the latter would simply not apply. The same can be said in relation to Security Council decisions: if an obligation imposed on member states by a Security Council resolution conflicts with a principle of jus cogens, then that obligation must automatically be deemed invalid.5 However, the concept of external validity does not seem relevant to Al-Jedda. In this case, the Security Council did not require the UK to act in contravention of a peremptory norm of international law. Instead, the case concerned the detention of the applicant for imperative reasons of security, and this type of detention is clearly regulated by GCIV. Thus, it is impossible to argue that detaining a person for security reasons ipso facto violates jus cogens.6 3 The Kadi and Yusuf Judgments of the European Court of Justice and the Idea of a Separate Legal Order After the bombing of the US Embassy in Kenya in 1998, the Security Council passed a number of resolutions creating a regime of targeted economic sanctions with the object of deterring terrorism. Resolution 1267 authorised the establishment of the Sanction Committee, charged with drawing up a list of persons and companies (the blacklist) associated with Al-Qaeda or the Taliban. The European Union member states introduced EC Regulation No. 881/2002 in order to implement the Security Council’s decisions. Mr. Kadi, whose assets were frozen under that Regulation, lodged a complaint with 5  Alexander Orakhelashvili, ‘R (On the Application of Al-Jedda) (FC) v. Secretary of State for Defence: UK House of Lords Judgment on Relationship between UN Security Council Resolution Authorising Detention in Iraq and European Convention on Human Rights’ (2008) 102 American Journal of International Law 337, 343. 6  Marko Milanovic, ‘More on Nada v. Switzerland’, available at , last accessed on 7 May 2015. For a more detailed consideration, describing in what circumstances an arbitrary deprivation of liberty may be deemed a violation of jus cogens, see Alexander Orakhelashvili, ibid., 343–344.

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the Court of First Instances (CFI) of the European Communities, now the General Court of the European Union, seeking an annulment of the Regulation on the ground that his fundamental rights, including the right to a fair hearing and judicial review, had been violated. His principal claim was that the legal system of the Community was independent from that of the United Nations. The CFI held that the member states and the EU institutions were merely implementing the Security Council’s requirements without exercising any autonomous discretion.7 Thus, it could not annul the Regulation, since doing so would amount to an indirect review of a Security Council decision. Mr. Kadi appealed the CFI’s decision to the European Court of Justice (ECJ). The Advocate General, Mr. Poiares Maduro, agreed with the appellant’s argument and held that the Community’s legal order was separate, autonomous and constitutional.8 In dealing with the appeal, the ECJ followed the Advocate General’s opinion in favour of Mr. Kadi. In particular, the Court stated that, irrespective of whether they stemmed from the member states’ or the EU’s obligations under Chapter VII resolutions, it had the power to review all Community acts (although not the Security Council resolutions from which they might emanate) according to the constitutional principles of the Community’s autonomous legal order, which is comparable to that of a domestic legal system.9 Similarly, in Al-Jedda, the ECtHR could have followed the ECJ’s example, proclaiming itself a guardian of the European legal order. Had it done so, the Strasbourg Court could have avoided the norm conflict issues and the applicability of Article 103. However, while relying on the ECJ’s judgment might have seemed an option, the ECtHR was not in a position to assume the guardianship role as easily as did the ECJ. As is evident from its jurisprudence,10 the 7  Case T-315/01 Kadi v. Council and Commission, 2005 E.C.R. II-3649, para. 214. 8  C-402/05 P and C-415/05 P Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities, European Court of Justice [2008] ECR I, paras. 21 and 22. 9  Ibid., para. 286. The ECJ confirmed its stance in Kadi II. Following the Kadi I judgment of the ECJ, the EU Commission adopted Regulation 1190/2008 listing Mr. Kadi as a person whose assets were to be frozen, Mr. Kadi lodged an application with the General Court for the annulment of the Regulation in so far as it concerned him. After the General Court rules in favour of Mr. Kadi, the Commission and the United Kingdom appealed the judgment to the ECJ. In examining the question of jurisdiction—particularly the relationship between the EU legal order and binding Security Council decisions under international law, the ECJ followed its approach in Kadi I. C-584/10 P, C-593/10 P and C-595/10 P Yassin Abdullah Kadi v. Commission and United Kingdom, European Court of Justice [2013] ECR I, para. 66. 10  R (on the application of Al-Jedda) v. Secretary of State for Defence (2007) UKHL 58, paras. 115 and 116; Behrami v. France, Saramati v. France, Germany and Norway (App No. 71412/01

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ECtHR has always emphasised that the ECHR forms part of international law. Otherwise, the validity of the Convention—itself an international treaty— might become subject to question, with the attendant risk that the whole ECHR system becomes marginalised within the wider international legal regime. However, this is not to say that the ECtHR completely relinquished its safeguarding role. 4 The Al-Jedda Judgment of the UK House of Lords The Al-Jedda judgment delivered by the House of Lords presented another course of action that the ECtHR could have followed. After dealing with the question of attribution of conduct, their Lordships explored the applicability of Article 103, raised by the Secretary of State. In his examination of the issue, Lord Bingham began by asking what was—arguably—the more relevant question: whether Security Council resolution 1546 required or obliged the UK to detain Mr. Al-Jedda. He held that: 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.

& 78166/01) ECHR 2 May 2007, paras. 122 and 145; Al-Adsani v. the United Kingdom [GC], no. 35763/97, ECHR 2001-XI, para. 55.

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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.11 Lord Bingham therefore concluded that, since Article 103 could extend to authorisations, there was a clash between the UK’s obligations under Article 5 of the ECHR and its power or duty of detaining the appellant as authorised by applicable Security Council resolutions. However, he did not argue that Article 5 was consequently overridden by Article 103. Rather, his Lordship suggested how the conflicting obligations that had been placed on the UK might 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.12 Baroness Hale addressed Lord Bingham’s distinction between ‘displacement’ and ‘reconciliation’ in a more direct manner. She asserted that Article 5 was qualified but not displaced.13 More importantly, Baroness Hale added that the extent of the qualification had to be determined according to the precise scope of the authorisation.14 However, instead of going on to interpret the relevant Security Council resolutions, she merely entered this point as a caveat and dismissed the appeal.15 In their discussion of norm conflict issues, Lords Rodger, Brown and Carswell followed the opinions of Lord Bingham and Baroness Hale. Noting the need to minimise any infringement of the appellant’s rights under Article 5,16 the House of Lords in general argued that the UK’s obligations under the applicable Security Council resolutions ‘prevailed over’ those stemming from the Convention.

11  Al-Jedda, House of Lords, ibid., para. 33. 12  Ibid., para. 39. 13  Ibid., para. 126. 14  Ibid. 15  Al-Jedda, House of Lords (n. 10), para. 129. 16  Ibid., para. 136.

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In Al-Jedda, the ECtHR could simply have followed the ruling of the House of Lords with or without making reference to the notion of ‘qualification’ raised explicitly by Baroness Hale and indirectly by Lord Bingham. It could have ruled that the relevant Security Council resolutions required UK forces to detain the applicant, and, by virtue of Article 103, the complaint was thereby rendered inadmissible. The Strasbourg Court did not follow the House of Lords, as it was not prepared to give up its guardianship role so easily. The (theoretical) question is why the Court, as the guardian of the European constitutional legal order, should allow or endorse the displacement or qualification of one of the Convention’s rights by a Security Council resolution. However, the Court could not manifestly ignore the Security Council’s decisions either, as did the ECJ in Kadi I. Therefore, the ECtHR had to find another way to play its guardianship role. This will be discussed in detail below. 5

Interpretation of the Applicable Security Council Resolutions

Another option for the ECtHR in dealing with Mr. Al-Jedda’s complaint would have involved a close scrutiny of the wording of the applicable Security Council resolutions. This course of action, contemplated but not applied by Baroness Hale, suggests that Article 103 is not ‘fully’ engaged unless the Security Council precisely and clearly requires member states to carry out specific actions, such as interning individuals for imperative reasons of security. Orakhelashvili, one of the proponents of this approach, stresses the need to examine Resolution 1546 in order to discover whether there was in fact a requirement of internment. Referring to Articles 31 to 33 of the Vienna Convention on the Law of Treaties for guidance as to the correct interpretation to apply, he finds that the Security Council neither stated nor implied that civilians should be detained in violation of humanitarian law.17 In a similar vein, Milanovic argues that the expressions ‘all necessary means’ and ‘all necessary measures’ are so broad that they can be invoked to cover almost any type of action. In particular, he asserts that, if the Security Council does wish to derogate from, or override, conflicting norms enshrined in human rights or humanitarian law treaties, then it should do so clearly and explicitly.18 17  Alexander Orakhelashvili (n. 5), 342–343. 18  Marko Milanovic, ‘Norm Conflict in International Law: Whither Human Rights?’ (2009) 20 Duke Journal of Comparative & International Law 69, 97–98; see also Marco Sassoli, ‘Legislation and Maintenance of Public Order and Civil Life by Occupying Powers’ (2005) 16 European Journal of International Law 661, 681.

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Similar reasoning was employed by Sir Nigel Rodley in his separate opinion in Sayadi. This case, dealt with by the Human Rights Committee, concerned the freezing of all financial assets belonging to Mr. Sayadi and his wife, Ms. Vinck, on the basis of Security Council Resolutions 1267 (1999), 1333 (2000), 1390 (2002), and 1455 (2003), as well as European Council Regulation No. 881/2002.19 The state party, Belgium, argued, inter alia, that the allegations made by the applicants were inadmissible, since it had merely implemented binding Security Council decisions without exercising any discretion.20 The Human Rights Committee held that an internal and external review of the relevant Security Council resolutions revealed that the state party was not under any obligation within the meaning of Article 103.21 Sir Nigel dissented from the Committee’s finding, citing its failure to address norm conflict issues. He maintained that, before assessing their legal validity, the Human Rights Committee should have scrutinised the applicable Security Council resolutions to find out whether a definitive obligation had been imposed by the Security Council.22 6

The ECtHR’s Response to Norm Conflict Issues in Al-Jedda

The European Court of Human Rights began its examination of the UK government’s submission that Article 5 of the ECHR was displaced/qualified by Article 103 by identifying the legal question that it had to deal with.23 The Court held that it had first to find out whether the UK had faced a conflict of obligations. In particular, the key question was whether the authorisation/ delegation under Security Council Resolution 1546, within the meaning of Article 103 of the UN Charter, obliged the UK to intern the applicant.24 In the first instance, the Court made reference to the purposes for which the UN was created. It stated that, under Articles 1 and 24(2) of the UN Charter, the Security Council, when carrying out its functions, was obliged 19  Marko Milanovic, ‘More on Nada v. Switzerland’ (n. 6); Sayadi and Vinck v. Belgium, Communication No. 1472/2006, Human Rights Committee, CCPR/C/94/D/1472/2006, para. 2.3. 20  Sayadi, ibid., para. 4.12. 21  Ibid., paras. 5.6 and 5.7. 22  Al-Jedda, ECtHR (n. 1), paras. 36 and 37. 23  Even though the government seemed to have relied on the argument of “displacement”, it did also suggest that Article 5 of the ECHR could be qualified to the extent that it was not compatible with the obligations stemming from the Charter. Al-Jedda, ECtHR (n. 1), para. 91. 24  Ibid., para. 101.

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to act in accordance with the goal of respecting human rights and fundamental freedoms.25 However, the ECtHR did not then proceed to undertake an internal review of Resolution 1546. Rather, it argued that, by virtue of its human rights obligations, there existed a strong presumption that the Security Council would use clear and explicit language if it intended member states to deviate from those obligations.26 As a consequence, the Court found it necessary to analyse Resolution 1546 in order to determine whether such language had in fact been used. The Court noted that two letters—one from the Prime Minister of the Interim Government of Iraq, and one from the US Secretary of State to the President of the Security Council—had been annexed to Resolution 1546.27 Construing the terms of those letters, it found that the primary obligation that the Security Council had imposed on the MNF was the maintenance of security and stability in Iraq.28 There was no explicit authorisation for indefinite internment without a criminal charge or judicial guarantees. The Security Council conferred on the MNF the power ‘to take all necessary measures to contribute to the maintenance of security and stability in Iraq in accordance with the letters annexed [to the resolution]’.29 The US Secretary of State had listed internment only ‘as an example of the “broad range of tasks” that the MNF was ready to undertake’.30 MNF was given discretion to devise the means by which it would fulfil its obligation to contribute to the maintenance of security and stability. Hence, it was under no obligation to intern individuals in violation of human rights law, unless this had been clearly indicated by the Security Council.31 The Court’s view of the matter clearly shows that it followed the approach advocated by Orakhelashvili, Milanovic and Sir Nigel Rodley. The Strasbourg Court did not reject the applicability of Article 103, but it cleverly managed to avoid becoming entangled in norm conflict issues. Furthermore, a closer examination of the judgment shows that the Court exercised its guardianship role in order to protect the Convention. However, it did not do so by claiming that the ECHR system constituted an autonomous legal order, as did the ECJ in Kadi I. Nor did it undertake an internal review of Resolution 1546. Instead, in 25  Ibid., para. 102. 26  Ibid. 27  Al-Jedda, ECtHR (n. 1), paras. 103 and 104. 28  Ibid., para. 105. 29  Ibid. 30  Ibid. 31  Ibid.

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order to protect the Convention from being displaced or qualified, the ECtHR developed a new model based on fulfilment of two conditions. In other words, the Convention rights can be displaced only if the two requirements set out by the Strasbourg Court are met. 7

The Stipulation that Clear Language be Used

The first requirement set down by the ECtHR was the need for explicit and unambiguous language to be used before a member state could claim that it was entitled to violate or disregard a human rights obligation. The Court, although undoubtedly aware of the importance of maintaining international peace and security, nevertheless emphasised in its Al-Jedda judgment that certain regard must still be had for the effective protection of human rights in peace and security operations. In this respect, the Court’s position can be better understood by taking into account the international security environment that formed the background to Mr. Al-Jedda’s complaint. Particularly after the terrorist attacks of September 11, 2001, a number of states, spearheaded by the US, began to wage what they characterised as a war against terrorism. The power of the Security Council has frequently been used and relied on in order to further this objective. The blacklisting of those alleged to have provided financial assistance to Al-Qaeda or the Taliban serves as a good illustration of this, and, as mentioned above, the Security Council passed a number of resolutions imposing economic sanctions on a list of targeted individuals. This economic aspect of the counter-terrorism regime exhibited, in its earliest stages, little regard for human rights. The civil liberties and human rights of the individuals subjected to economic sanctions were seriously curtailed. Suspected persons were put on the UN’s blacklist without notification and without being given any real opportunity to challenge what amounted to an extra-judicial decision.32

32  Chafiq Ayadi v. Council of European Union, Judgment of the Court of First Instance, T-253/02, para. 116; See JUSTICE’s Third Party Interventions Submission of Justice in Nada v. Switzerland, para. 49, , last accessed on 7 May 2015.

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Such a stance was swiftly condemned by the international community. For example, both the Council of Europe33 and the Special Rapporteur for the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism34 made significant efforts to accommodate greater protection for human rights in the blacklisting process. An important part was also played by judicial bodies: since their introduction, the blacklisting procedures have, on several occasions, been subjected to judicial scrutiny,35 with judicial authorities having taken a firm stance in favour of safeguarding human rights.36 As a result of all this, the Security Council, in its resolutions following Resolution 1267, was obliged to introduce some procedural safeguards, such as ensuring that individuals were provided with notification before being blacklisted and also given the opportunity to request that they be removed from such blacklists.37 In Al-Jedda, the ECtHR adopted a similar approach. Perhaps inspired by other judicial responses to the blacklisting procedures, the Strasbourg Court strove to ensure greater protection for human rights in relation to a military operation that had been launched, at least in part, on the basis of combating terrorism.38 Hence, it can be said that the Court adopted something of a political stance: standing up to the arbitrary use of force in order to safeguard human rights, even when the force in question was apparently justified by the need to fight terrorists or to ensure the maintenance of peace and security for the benefit of the international community. The ECtHR’s intention in Al-Jedda can be seen in its argument that the language used in Resolution 1546 was not sufficiently clear. For internment to be justified on the ground of security, the Court held that there must be a clear 33  See the Report of Mr. Dick Marty at , last accessed on 7 May 2015. 34  See the Special Rapporteur’s report at , last accessed on 7 May 2015. 35  Kadi and Al Barakaat (n. 8); Sayadi and Vinck v. Belgium (n. 19). 36  For example, the Brussels Court of First Instance required Belgium to initiate proceedings to remove the names of Mr. Sayadi and his wife from the UN Sanction Committee’s blacklist. Sayadi and Vinck, ibid., para. 2.5. 37  In particular, see Security Council Resolutions 1597 and 1824. 38  When the US and the UK invaded Iraq in 2003 with the object of toppling Saddam Hussein, the US partly relied on the alleged connection between Saddam and Al-Qaeda to justify the action. Patrick McLain, ‘Settling the Score with Saddam: Resolution 1441 and Parallel Justifications for the Use of Force against Iraq’ (2003) 13 Duke Journal of Comparative & International Law 233, 279.

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legal basis for such detention, which could not simply be inferred from the broad injunction ‘to take all necessary measures’. However, what if the Security Council had explicitly referred to the possibility of internment for imperative reasons of security? Would the Court have then allowed the Convention to be displaced by virtue of Article 103 of the UN Charter? It is surely hard to believe that the Court would simply give up its guardianship role so easily, even if the stipulation as to the employment of clear language were to be met. That this is the case is supported by the second condition that the ECtHR had regard to in determining whether there was an obligation of internment placed on the UK under Article 103. 8

Discretion as to the Means of Choice

The second criterion applied by the ECtHR related to the discretion that the MNF enjoyed as to how to fulfil its obligations under Resolution 1546. The Court held that the MNF was free to choose the means by which it would comply with its duty of contributing to the stability and security of Iraq. Since much of the Court’s analysis centred on its initial finding that a member state would not be entitled to act in violation of human rights law unless the Security Council had authorised it to do so in very clear language, the remarks that the Court made about the MNF’s power to choose its own methods and strategy in meeting its obligations can easily be overlooked. However, this point, too, is of fundamental importance in determining whether the UK was under an obligation to intern the applicant. In fact, there are a number of cases that demonstrate how the margin of appreciation enjoyed by states in undertaking their obligations under Security Council decisions can be critical in assessing whether or not a state is necessarily required to employ a method that results in the alleged violation. In the cases of Organisation des Modjahédines du Peuple d’Iran v. European Council, Sison v. European Council and Al-Aqsa v. European Council, the First Instance Court of the European Communities (CFI) examined the role played by the margin of appreciation that had been left to the respondent EU member states in relation to their obligations under a Security Council resolution.39 39  Case T-228/02 Organisation des Modjahédines du Peuple d’Iran v. European Council [2006] ECR II; Case T-47/03, Sison v. European Council [2007] ECR II; Case T-327/03 Al-Aqsa v. European Council [2007] ECR II. A brief summary of the cases can be found at http:// leuropedeslibertes.u-strasbg.fr/article.php?id_article=405&id_rubrique=77, last accessed on 7 May 2015.

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Specifically, the cases concerned the blacklisting of the applicants under SC Resolution 1373, passed with the object of combating terrorism. In dealing with the applicants’ complaints, the CFI held that the framework of Resolution 1373 conferred on member states a certain degree of discretion in identifying the persons to be placed on the list and in freezing those individuals’ financial assets. A similar stance was adopted by the UK Supreme Court in Ahmed and Others v. HM Treasury, concerning the legality of two terrorism orders enacted in 2006—one implementing Resolution 1373 and the other Resolution 1267—that constituted the legal basis for the freezing of the claimants’ financial assets. The Supreme Court distinguished between the member states’ obligations under the two resolutions. It pointed out that Resolution 1373 incorporated general terms, referring broadly to ‘the act of terrorism’ or to those ‘who commit, or attempt to commit, terrorist acts’. Consequently, the Court said, determining who would fall within the ambit of this resolution was left to the member states.40 In contrast, Resolution 1267 provided for the creation of the Sanction Committee, and states were given no leeway as to how to carry out their relevant obligations; they were just bound to follow the blacklisting procedures set out under Articles 25 and 103 of the UN Charter so as not to interfere with the UN’s key role in maintaining international peace and security.41 The ECtHR followed a similar line of reasoning in Al-Jedda. It stated that internment of the applicant was not the only way in which the UK could have complied with its obligations in Iraq. In the Court’s view, the respondent state possessed a choice of means as to how to fulfil its duties.42 Hence, the ECtHR, in addition to its finding that any infringement of human rights would be permissible only if authorised in very clear terms, also opened up another possible avenue that would enable it to safeguard the principles enshrined in the ECHR, even if they were to come into conflict with the provisions of a Security Council resolution. Rather than advocating non-compliance with obligations imposed by the Security Council, the Court could instead assert that member states nevertheless enjoy the freedom to carry out those obligations in a manner that is compatible with human rights law. Indeed, the ECtHR adopted this approach in Nada v. Switzerland.43 40  Ahmed and Others v. Treasury [2010] UKSC 2, para. 58. The Supreme Court’s judgment is available at http://ukscblog.com/new-judgment-ahmed-ors-v-hm-treasury-no-2-2010uksc-5/, last accessed on 7 May 2015. 41  Ibid., para. 71. 42  Al-Jedda, ECtHR (n. 1), para. 105. 43  Nada (n. 1).

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The background of this case concerns the domestic implementation of the Security Council’s ‘sanction regime’ by Swiss authorities. During that process, the applicant’s name was added to the Sanction Committee’s blacklist;44 he was removed to Italy after being arrested in London;45 his cross-border crossing permit was cancelled;46 his entry to Switzerland was banned, and he was forced to live in Italian enclave without having regard to his request to receive medical treatment in Switzerland or to attend legal proceedings in Italy or Switzerland. The applicant lodged an application with the ECtHR claiming that the Swiss national measures implementing the sanction regime violated a number of his rights under the Convention. When Mr. Nada’s complaint was dealt with at the domestic level, the Swiss Federal Council considered whether the Swiss government enjoyed a margin of appreciation in discharging its obligations under the applicable Security Council resolutions.47 The same was reiterated in Strasbourg by the respondent Government, together with France and the United Kingdom intervening as third parties. In view of this, the ECtHR held: The Court observes that Switzerland did not became a member of the United Nations until 10 September 2002: it had thus adopted the Taliban Ordinance of 2 October 2000 before even becoming a member of that organisation, whereas it was already bound by the Convention. Similarly, it had implemented at domestic level the entry and transit ban concerning the applicant, as required by Resolution 1390 (2002) of 16 January 2002 (see paragraph 74 above), on 1 May of that year by the amendment of Article 4a of the Taliban Ordinance. The Court acknowledges that this resolution, particularly in the light of paragraph 2, was addressed to “all States” and not only the members of the United Nations. However, the Court observes that the United Nations Charter does not impose on States a particular model for the implementation of the resolutions adopted by the Security Council under Chapter VII. Without prejudice to the binding nature of such resolutions, the Charter in principle leaves to UN member states a free choice among the various possible 44  Ibid., para. 21. 45  Ibid., para. 24. 46  Ibid., para. 25. 47  See the Statement of the Fact of Nada v. Switzerland (No. 10593/08), available at http:// cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=848716&portal=hbkm &source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649, last accessed on 25 February 2015.

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models for transposition of those resolutions into their domestic legal order. The Charter thus imposes on States an obligation of result, leaving them to choose the means by which they give effect to the resolutions (see to the same effect, mutatis mutandis, the Kadi judgment of the CJEC, § 298, paragraph 86 above).48 Applying this formula to the present case, despite the language of relevant Security Council resolutions couched in mandatory terms, the ECtHR found that Switzerland ‘enjoyed some latitude, which was admittedly limited but nevertheless real, in implementing the relevant binding resolutions of the UN Security Council’.49 In doing so, it can be argued that the Strasbourg has now left almost no room for supremacy of Chapter VII obligations over the Convention. 9 Conclusion The Security Council—composed of fifteen states, but with only five of them enjoying permanent status—is a highly political organ that possesses immense power on a global scale. It is, however, quite possible for the permanent members to exploit the Council’s powers for their own (political and economic) ends rather than in the interests of the wider international community. Furthermore, the ways in which the Security Council has been exercising its immense powers in recent years have given rise to serious concerns about the impact that this is having on individuals’ human rights. It is regrettable that the actions of the Security Council aimed at maintaining international peace and security, including the United Nations peace support operations authorised or run by the Council, have not offered sufficient guarantees against human rights abuses. Bearing in mind that there is ongoing uncertainty as to how or by whom the Council’s decisions can be reviewed, this in turn has prompted the international community to seek solutions under international law in order to constrain the power of the Security Council. Over the last decade, regional courts have shown themselves increasingly willing to protect their own legal orders against any threat posed by the UN regime. However, the strategies that they devised in playing their guardianship roles have been divergent, and also made crucial implications for issues relating to fragmentation and unification of international law. The UK House 48  Nada (n. 1), para. 176. 49  Ibid., para. 180.

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of Lords, in Al-Jedda, and the Court of First Instance, now the General Court of the European Union, in Yusuf and Kadi I, have recognised the supremacy of pertinent Security Council resolutions over the applicable human rights treaties by virtue of Article 103 of the UN Charter. On the other hand, the European Court of Justice (ECJ), in the latter cases, has adopted a fragmentationist view. It claimed that the community law was autonomous and separable from the international legal order. Dealing with the same question, particularly in Al-Jedda and recently delivered Nada, the ECtHR balanced the concerns regarding the effectiveness in the collective security system and protection of human rights through using treaty interpretation techniques. While its harmonisation approach which built on the integrationist theory propounded in the International Law Commission’s Report on Fragmentation of International Law may appear to have been intended at contributing to the development of international law,50 it can be argued that the Strasbourg Court was not really concerned with the coherence and completeness of general international law. It rather aimed to protect the ECHR system against the (ab)use of vast Chapter VII powers by the Security Council. However, instead of following the ECJ’s ruling in Kadi I, which could marginalise the ECHR system within the wider international legal regime and raise questions about the validity of the Convention, the Strasbourg Court created a two-tier system which leaves virtually no leeway for primacy of Chapter VII obligations over those under the ECHR. In Al-Jedda, the ECtHR chose to rely on a careful interpretation of the relevant Security Council resolution. In Nada, the Strasbourg Court held that despite the existence of an apparent conflict between the obligations of the respondent state under the Convention and the pertinent Security Council decisions, the responsibility of the state could nonetheless be sought based on the degree of discretion that it enjoyed in undertaking the obligations imposed by the Security Council. Thus, it is arguable that the ECtHR assumed a political stance in order to prompt the Security Council into exercising its power in a more specific and clear manner. While the ECtHR’s stance in Al-Jedda and Nada in relation to norm conflict issues appears to be an encouraging one for the human rights community—since the Court refused to allow the respondent states to shield behind UN authorisation in regard to the human rights violation complained of—the reasoning employed by the Court in reaching its conclusion is not without controversy. For example, in these two cases, the Strasbourg Court— 50  ILC, ‘Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion International Law. Report of the Study Group of the International Law Commission. Finalized by Martti Koskenniemi’ UN Doc A/CN.4/L.682 (13 April 2006), 206.

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unlike what the ECJ did in Kadi I—clearly refrained from reviewing the applicable Security Council resolutions. However, in Nada, it had the opinion that the Swiss authorities were to review the Security Council decisions so as to ensure that the obligations imposed, namely the Taliban Ordinance, was in conformity with the Convention.51 Thus, although the Strasbourg significantly contributed to the protection of human rights in collective security projects, its intention to avoid facing the application of Article 103 squarely has led to problematic reasoning in its rulings. 51  Ibid., para. 212.

CHAPTER 4

Appraising Extraterritorial Human Rights Obligations in a Post-conflict Environment: Security Detainee Cases in the Context of UN-authorised Military Missions 1 Introduction This chapter discusses how best to assess the scope of states’ human rights obligations in relation to security detention practices undertaken by their soldiers during UN-authorised missions. Human rights norms are usually aimed at safeguarding individuals from governmental abuse at home; the changing nature of global politics, however, has made it increasingly necessary for such protection to be extended beyond national borders. One of the difficulties arising from this is how to determine the extent of states’ human rights obligations in respect of extraterritorial activities that give rise to alleged human rights violations. In this regard, as noted by Krieger, the German Constitutional Court has held that human rights norms when applied abroad cannot be implemented to their full extent.1 Recently, more attention has been paid to the problem of how human rights obligations are to be applied in extraterritorial situations. In particular, the way in which these jurisdictions are conceptualised may have a decisive impact on how the human rights obligations of states are regarded and dealt with there.2 In the context of UN-authorised missions, however, this issue of extraterritorial jurisdiction has been overlooked. The cases resulting from the UN-authorised missions are mostly discussed on the basis of attribution. Once an alleged human rights violation is found to be attributable to a TCN, the relevant obligations of that state are determined as if its forces had been operating within their own national borders. Arguably, however, when such a finding of responsibility is made, the extraterritorial aspect of the case should not be 1  Heike Krieger, ‘A conflict of Norms: The relationship between International Humanitarian Law and Human Rights Law in the ICRC Customary Law Study’ (2006) 11 Journal of Conflict and Security Law 265, 285. 2  Hugh King, ‘The Extraterritorial Human Rights Obligations of States’ (2009) 9 Human Rights Law Review 521, 538.

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ignored. This chapter discusses why the practices of security detention undertaken under the auspices of the UN should be considered in their extraterritorial context and how this can help to determine the scope of the human rights obligations incumbent on TCNs. It also seeks to identify the most appropriate methodology for evaluating the standard of human rights that should apply in such a context. 2

The Relationship between Jurisdiction and State Responsibility

2.1 Overview The relationship that obtains between the notion of jurisdiction and that of state responsibility has been a source of confusion. The distinction between the two concepts is not clear. Rick Lawson, in his comment on Bankovic, equated the jurisdiction clause in Article 1 of the ECHR3 to Article 2 of the International Law Commission’s Articles on DARS.4 The latter states that: There is an internationally wrongful act of a State when conduct consisting of an act or omission: (a) is attributable to the State under international law; and (b) constitutes a breach of an international obligation of the State. In light of Article 2 of DARS, Rick Lawson argued that the European Court of Human Rights in Bankovic failed to examine whether the bombing of Radio Television Serbia (RTS) by NATO was (a) attributable to the respondent states and (b) constituted a breach of the international obligations of those states.5 In his reply to Lawson, Michael O’Boyle states that the term jurisdiction under Article 1 of the ECHR does not equate to the notion of state responsibility embodied in Article 2 of DARS; it is, rather, a threshold requirement aimed 3  Article 1 of the ECHR reads as follows: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention”. For a wider analysis of Article 1 of the ECHR in an extraterritorial context, see Karen da Costa, Extraterritorial Application of Selected Human Rights Treaties (Brill Nijhoff, 2012). 4  International Law Commission, ‘Articles on Responsibility of States for Internationally Wrongful Acts’ (2001) A/56/49(Vol. I)/Corr.4. See also Rick Lawson, ‘Life after Bankovic: On the Extraterritorial Application of the European Convention on Human Rights’ in Fons. Coomans and Menno T. Kamminga (eds.), Extraterritorial Application of Human Rights Treaties (Intersentia, 2004), 86. 5  Ibid., 109.

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at circumscribing the application of the Convention.6 The ECHR and the ICCPR must be distinguished from treaties that do not contain a jurisdiction clause, such as the Third Geneva Convention (on the treatment of prisoners of war), because neither of them requires member states to respect and secure the rights and freedoms of individuals in all circumstances.7 Whether an act or omission of a state may give rise to state responsibility can be dealt with only once a nexus between that state and an individual alleging a violation is established.8 In other words, the victim must first fall under the jurisdiction of the state before the state’s responsibility can be determined. Thus, in the ECHR and ICCPR systems, the terms jurisdiction and state responsibility are not interchangeable. De Schutter contends that the question of imputability of an act or an omission to a state under Article 2 of DARS arises only after a jurisdictional link between the state and the victim of the alleged violation has been identified.9 Milanovic argues that the notion of jurisdiction in human rights treaties relates to Article 2(b) of DARS rather than the element of attribution under Article 2(a).10 Under Article 2(b), the breach of an international obligation is a constituent element of a wrongful act of a state. Milanovic claims that, as a threshold requirement, the concept of jurisdiction determines the extent of the obligations that member states owe to individuals that fall within their jurisdiction. His view is supported by O’Boyle, who suggests that the jurisdiction clause in Article 1 of the Convention delineates the scope of positive obligations owed by states, as well as the ambit of the Convention itself.11 That is to say, the type and nature of the jurisdiction that a state exercises over an individual will be a factor when assessing the extent and scope of the obligation that the state is alleged to have violated. 6  Michael O’Boyle, ‘The European Convention on Human Rights and Extraterritorial Jurisdiction: A Comment on “Life after Bankovic’ ” in Fons. Coomans and Menno T. Kamminga (eds.), Extraterritorial Application of Human Rights Treaties (Intersentia, 2004), 125–126. See also Al-Jedda v. the United Kingdom (Application no. 27021/08) ECHR 7 July 2011, para. 74. 7  Ralph Wilde, ‘Legal “Black Hole”? Extraterritorial State Action and International Treaty Law on Civil and Political Rights’ (2005) 26 Michigan Journal of International Law 739, 797. 8  Ibid. 9  Issa and Others v. Turkey (Application no. 31821/96) ECHR 16 November 2004, para. 66; Olivier De Schutter ‘Globalization and Jurisdiction: Lessons from the European Convention on Human Rights’ (2005) Centre for Human Rights and Global Justice Working Paper, NYU School of Law. 10  Marko Milanovic, ‘From Compromise to Principle: Clarifying the Concept of State Jurisdiction in Human Rights Treaties’ (2008) 8 Human Rights Law Review 411, 441. 11  Michael O’Boyle (n. 6), 125.

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The Relationship between Jurisdiction and Attribution: Implications for UN-authorised Missions While the jurisdiction clauses in the ECHR and the ICCPR ensure that the notion of jurisdiction can easily be distinguished from that of state responsibility, the dividing line between the concept of jurisdiction and that of attribution is more obscure and complicated, especially in cases where states operate in an extraterritorial environment under a Chapter VII authorisation of the UN Security Council. The decision of the European Court of Human Rights in Behrami and Saramati is illuminating in this respect.12 Behrami concerned the explosion of some undetonated bombs, resulting in death and serious injury to a group of children who were playing in the area where the explosion occurred.13 The applicant in the case, the father of two of the affected children (one of whom died), alleged that France had failed to fulfil its obligation to de-mine the area. In Saramati, the applicant lodged a claim against France, Norway and France alleging that his internment for security reasons violated his right to liberty under Article 5 of the Convention.14 In dealing with these cases, the ECtHR concluded that the acts and omissions complained of were attributable to KFOR and UNMIK. Since the UN had delegated a Chapter VII power to KFOR, and UNMIK was a subsidiary organ of the UN, the actions of both were, the Court held, attributable to the UN. Hence, the applicants’ complaints were ratione personae incompatible with the Convention. However, in reaching that conclusion, the Court, after finding that Kosovo was under the effective control of international civil and security entities (UNMIK and KFOR),15 applied a test of attribution to find out whether the acts and omissions were imputable to the UN or the respondent TCNs.16 Consequently, did the Court reject the complaints on the jurisdictional ground (effective control) or under Article 2(a) of DARS? Sari, one of the first to commentate on Behrami and Saramati, argued that there was actually no need for the Court to apply the attribution test.17 He contends that the key question in these joined cases was whether there was a jurisdictional link between the applicant and the states in question. Since the Court explicitly held that Kosovo was, on the relevant dates, under the effective 2.2

12  Behrami v. France and Saramati v. France, Germany and Norway (Application no. 71412/01) ECHR 2 May 2007. 13  Ibid., paras. 5–8. 14  Ibid., paras. 9–17. 15  Ibid., para. 70. 16  Ibid., para. 71. 17  Aurel Sari, ‘Jurisdiction and International Responsibility in Peace Support Operations: The Behrami and Saramati Cases’ (2008) 8 Human Rights Law Review 151, 159.

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control of international actors,18 there was no jurisdictional link between the applicants and respondent states. Therefore, the application of the attribution test was not necessary.19 In regard to Sari’s analysis, it can be said that his point of departure is correct. He suggests that the Court first had to deal with the jurisdictional link between the applicants and the respondent states before assessing whether the acts and omissions in question were attributable to those states under the law of responsibility. However, it is not clear from its reasoning in Behrami and Saramati whether the Court’s understanding of the terms ‘jurisdiction’ and ‘attribution’ was the same as that of Sari’s. In Behrami and Saramati, the applicants claimed that the complaints were ratione loci and ratione personae compatible with the Convention,20 whereas the respondent states raised exactly the opposite arguments.21 The ECtHR held that a compatibility ratione loci refers to the jurisdiction of a state, which is primarily territorial, and which is distinct from compatibility ratione personae, even though the two concepts may sometimes overlap.22 The Court subsequently stated that: The question raised by the present cases is, less whether the respondent states exercised extra-territorial jurisdiction in Kosovo but far more centrally, whether this Court is competent to examine under the Convention those States’ contribution to the civil and security presences which did exercise the relevant control in Kosovo.23 The Court’s approach can be understood as suggesting that the jurisdiction clause in Article 1 is not always about compatibility ratione loci, which is primarily a territorial concept, and applies extraterritorially only in exceptional cases. For example, the dismissal of a complaint lodged in relation to an extraterritorial act of a state on the ground of incompatibility ratione loci does not necessarily mean that the applicant cannot in any way fall under the jurisdiction of that state within the meaning of Article 1 of the Convention.24 Relying 18  Behrami and Saramati (n. 12), para. 70. 19  Aurel Sari (n. 17), 160. 20  Behrami and Saramati (n. 12), para. 66. 21  Ibid., para. 67. 22  Ibid., para. 69. 23  Ibid., para. 71. 24  Drozd and Janousek v. France and Spain, (Application no. 12747/87), ECHR para. 90; The European Court of Human Rights, ‘Practical Guide on Admissibility Criteria’ (2011), para. 156. (Hereinafter: The Practical Guide).

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on compatibility ratione personae, the Court can establish the jurisdictional link by testing whether the extraterritorial act alleged to have led to a violation is imputable or attributable to that state.25 However, in this case, the attribution test applied by the Court is not the same as that of state responsibility envisaged in Article 2(a) of DARS. Rather, it is a different conception of attribution—one that refers to the jurisdiction of the Court. Its extensive experience in dealing with a vast number of individual applications has familiarised the ECtHR with determining whether a matter falls within its own jurisdiction before going on to decide whether the matter also comes within the jurisdiction of a contracting party to the ECHR through compatibility ratione loci.26 As Milanovic argues with respect to Behrami/ Saramati, “it was perfectly legitimate for the Court” to determine first whether the conduct in question was attributable to the respective respondent state before assessing whether that state had effective control over the relevant part of Kosovo.27 If this is the case, then the question that immediately arises is whether the Court would necessarily have to examine compatibility ratione loci with the Convention once it has established its own jurisdiction to deal with the complaint. In Behrami and Saramati, the Court did not reach this point, since it had already decided to reject the applications on the ground that it lacked jurisdiction to review acts and omissions imputable to the UN.28 However, the Court’s reasoning in Behrami and Saramati suggests that if it did determine that it had jurisdiction to deal with a complaint, this would not then exempt it from exploring that complaint through the prism of compatibility ratione loci. 2.3 Why Have Regard to Compatibility Ratione Loci with the Convention? One may wonder why an examination of compatibility ratione loci in respect of the Convention is relevant. As discussed above, the jurisdiction clauses in the ECHR and the ICCPR constitute the threshold requirement for determining the scope of the contracting parties’ obligations. Thus, in an extraterritorial context, the way in which jurisdiction is conceptualised, or the nature of the

25  Ibid., para. 157. 26  Dealing with applications in this order is provided for in the Practical Guide (n. 24). 27  Marko Milanovic and Tatjana Papic, ‘As Bad as It Gets: The Court of Human Rights’s Behrami and Saramati Decision and General International Law’ (2009) 58 International and Comparative Law Quarterly 267, 275. 28  Ibid., 274.

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control that a state may be exercising over an individual or an area, will have a decisive impact on the extraterritorial human rights obligations of that state.29 The case-law demonstrates that extraterritorial jurisdiction may take different forms, with each one placing a different degree of obligation on a state. For example, in Cyprus v. Turkey, the ECtHR held that, because of Turkey’s effective control over northern Cyprus, Turkey’s jurisdiction would extend to ensuring that all substantive rights enshrined in the Convention and the Protocols ratified by Turkey were respected in that territory.30 In the context of UN-authorised missions, however, the issue of extraterritorial jurisdiction has been overlooked. Discussion mostly centres on the basis of attribution. Once the conduct in question is found to be imputable to a state, the Convention is applied without any regard to the role played by extraterritorial jurisdiction. For instance, in Al-Jedda, the ECtHR held that jurisdiction under Article 1 of the Convention is a threshold requirement that has to be fulfilled before any appraisal can be made as to whether or not the relevant act or omission is imputable to a state.31 Confirming that the internment of Mr. Al-Jedda fell within the extraterritorial jurisdiction of the United Kingdom, as acknowledged by the UK during domestic proceedings, the Court went on to apply an attribution test.32 Concluding that the applicant’s detention was attributable to the UK, the Court applied the Convention without any consideration of how the extraterritorial jurisdiction exercised by the UK might affect the scope of Article 5 obligations owed to the applicant. Once the ECtHR is satisfied that the act or omission in question falls within the jurisdiction of a contracting party under Article 1, it is certainly not then required to consider whether the type of jurisdiction involved would permit any alteration in the scope of the relevant state’s obligations. However, in similar cases, where a Security Council authorisation is not at issue but the case does concern the extraterritorial application of the Convention, the Court has laid considerable emphasis on this point. In any event, instead of applying the Convention as it stood in Al-Jedda, it would have been more appropriate for 29  Hugh King (n. 2), 538; Francoise Hampson and Ibrahim Salama, ‘Working Paper on the Relationship between Human Rights Law and International Humanitarian Law’, UN SubCommission on the Promotion and Protection of Human Rights, 57th session, 21 June 2005, paras. 79 and 82. 30  Cyprus v. Turkey (Judgment) (Application no. 25781/94) ECHR 10 May 2001, para. 77. 31  Al-Jedda (n. 6), para. 74. The case concerned the applicant’s internment for imperative reasons of security. Mr. Al-Jedda had first been arrested by US soldiers, and was then taken to a British detention facility in Basrah, where he was detained for more than three years. For the wider background to the case, see paras. 9–15. 32  Ibid., para. 75.

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the Court to have taken into account the fact that the internment took place in an extraterritorial context, and then to have assessed the extent of the UK’s obligations on the basis of the type of extraterritorial jurisdiction the UK was exercising in respect of the applicant. In doing so, the Court would have been properly contextualising the application of the Convention. This chapter suggests that a similar strategy should be adopted in relation to UN-authorised missions. Once an act or omission is imputed to a TCN, the relevant provisions of human rights treaties concerning the alleged violation caused by the conduct in question should not be applied to their full extent. When the scope of the relevant state’s human rights obligations is assessed, regard must be had to the fact that its soldiers were operating outside their national borders. In an extraterritorial context, the nature of the control a state exerts over an individual or area varies. As a result, the state may be exercising different forms of extraterritorial jurisdiction, which it is important to take account of when determining the extent of that state’s extraterritorial human rights obligations. This approach will be applied in the following sections to cases of security detention undertaken by TCNs taking part in UN-authorised security missions in post-conflict territories. 3

Extraterritorial Jurisdiction in Human Rights Law

3.1 Overview Human rights treaties have traditionally been designed to constrain the behaviour of states within the bounds of their own territories. However, as their interests began to change in an era of increasing globalisation, states more frequently began to engage in extraterritorial activities. Moreover, in certain instances, an action carried out within a state’s own borders may have a significant extraterritorial effect. For these reasons, extraterritorial jurisdiction has become a thorny issue in human rights law, especially during the last couple of decades. The concept of extraterritorial jurisdiction remains unclear, and the relevant jurisprudence of the ECtHR with regard to this issue has been inconsistent. As Lord Rodger observed in Al-Skeini, ‘the judgments and decisions of the European Court of Human Rights do not speak with one voice’.33 Consequently, it is necessary to consider how the concept of extraterritorial jurisdiction has been regarded and dealt with in the relevant case-law, in order to pinpoint how different models of its application have been developed over time. The focus here is mainly on the jurisprudence of the ECtHR, as it is less 33  Al-Skeini v. Secretary of State [2007] UKHL 26, para. 67.

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consistent and more problematic in comparison with that of other judicial bodies, although the decisions of other courts will be referred to as necessary. Accordingly, the discussion will begin with an analysis of Bankovic, which, in the words of the British Divisional Court in Al-Skeini, represented ‘a watershed authority in the light of which the Strasbourg jurisprudence as a whole has to be re-evaluated,34 and which has attracted harsh criticism. 3.2 The ECtHR’s Decision in Bankovic The background to Bankovic concerns the NATO bombing of the former Federal Republic of Yugoslavia (FRY), which was not a party to the ECHR at that time. During the air strike, Radio Televizije Srbije was hit. One of the individuals injured as a result of the bombing, and five relatives of others who had been killed in the attack, lodged a complaint against seventeen states that were party to the Convention. The applicants submitted that their applications were compatible ratione loci with the Convention because the disputed act of the states in question, carried out either in or beyond their home territories, had produced an effect in the FRY.35 They added that the extent of the positive obligations of the relevant states under Article 1 of the Convention should be proportionate to the level of control exercised.36 In other words, the states’ obligations under Article 1 could be divided and tailored in accordance with the particular circumstances of the impugned extraterritorial act.37 The applicants further contended that Article 15 of the Convention would be meaningless if its provisions could not also be extended to situations of extraterritorial war or emergencies.38 Ultimately, the applicants argued that viewing the Convention as an instrument solely of the European public order (public ordre) would leave the applicants without a remedy and would also create a vacuum in the ECHR system.39 The respondent governments argued that the jurisdiction clause in Article 1 must be construed in accordance with its ordinary meaning under public international law,40 which essentially extends domestic legal authority beyond 34  Al-Skeini v. Secretary of State [2004] EWHC (QB) 2911, para. 268. 35  Bankovic and Others v. Belgium and Others (Application no. 52207/99) ECHR 12 December 2001, para. 46. (Hereinafter: Bankovic). 36  Ibid., paras. 46–48. 37  Ibid., para. 52. 38  Ibid., para. 49. 39  Ibid., para. 51. 40  Ibid., para. 36.

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national borders.41 They also claimed that the drafters of the Convention had not intended the Convention’s obligations to be divisible according to circumstances leading to an alleged violation.42 Nor, they asserted, could Article 15 be interpreted so as to cover extraterritorial acts of war or emergencies.43 In particular, the respondent states held that the Convention was designed to apply only within the area of the Council of Europe (espace juridique), and the reason why Turkey had been held responsible for human rights violations in Northern Cyprus was because Cyprus was a Contracting Party to the Convention.44 3.3 The Court’s Conception of Extraterritorial Jurisdiction in Bankovic In its assessment of the case, the Court initially held that, in accordance with the Vienna Convention on the Law of Treaties, it would interpret the Convention with regard to its object and purpose, consulting the Convention’s travaux préparatoires where necessary.45 Referring to such rules of interpretation, the Court approached the meaning of jurisdiction under Article 1 from the standpoint of public international law. It argued that the jurisdiction clause in Article 1 reflected the notion of jurisdiction prevalent in public international law, which is based on such factors as nationality, flag, diplomatic and consular relations, effect, protection, passive personality and universality.46 The Court, however, stated that, even though the concept of jurisdiction in public international law is essentially territorial in nature, it could, exceptionally, be relevant in extraterritorial contexts.47 The Court went on to list four exceptional situations in which extraterritorial jurisdiction would apply: (i) extradition or expulsion;48 (ii) extraterritorial effects;49 (iii) consular or diplomatic and flag jurisdiction;50 and (iv) effective control. With respect to the last category, the Court, after invoking its case-law arising from Turkey’s occupation of Northern Cyprus,51 contended that:

41  Ibid., para. 37. 42  Ibid., paras. 39–40. 43  Ibid., para. 41. 44  Ibid., para. 42. 45  Ibid., paras. 55–58. 46  Ibid., para. 59. 47  Ibid., para. 61. 48  Ibid., para. 68. 49  Ibid., para. 69. 50  Ibid., para. 73. 51  Cyprus v. Turkey (n. 30); Loizidou v. Turkey (Preliminary Objections) (Application no. 15318/89) ECHR 23 March 1995.

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Extraterritorial jurisdiction could be possible when the respondent State, through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the Government of that territory, exercises all or some of the public powers normally to be exercised by that Government.52 However, the Court introduced two limitations on possible extraterritorial jurisdiction in effective control cases. First, the extraterritorial control was to be exercised within the zone of the Council of Europe. The Court contended that the Convention, as a multi-lateral treaty, was operating within a regional legal space (espace juridique).53 Second, the contracting party enjoying effective control over a territory was to exercise all or some of the public powers normally exercised by the home Government.54 Adopting this understanding of the concept of jurisdiction, the Court reached the following conclusions. First, the FRY was not at the time of the NATO bombing within the espace juridique or legal space of the Convention.55 Second, with respect to the divisibility of Convention obligations, the Court upheld the respondent governments’ submission that Article 1 did not contemplate a cause-and-effect notion of jurisdiction.56 It added that: The applicants’ suggestion would be tantamount to arguing that anyone adversely affected by an act imputable to a Contacting State, wherever in the world that act may have been committed or its consequences felt, is thereby brought within the jurisdiction of that state.57 The Court took the view that Article 1 did not provide any support for the applicants’ submission that the positive obligations of states could be divided or tailored according to the specific circumstances of the extraterritorial act in question.58 Third, the Court held that Article 15 of the Convention, as indicated by state practice, could not be invoked in cases of extraterritorial military

52  Bankovic (n. 35), para. 71. 53  Ibid., para. 80. 54  Ibid., para. 71. 55  Ibid., para. 80. 56  Ibid., para. 75. 57  Ibid. 58  Ibid.

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missions.59 On these grounds, the Court found that there was no jurisdictional link between the applicants and the respondent governments and therefore rejected the complaints.60 Both the Court’s conclusions and its understanding of the concept of jurisdiction in Bankovic are, however, troublesome. 4

The Relationship between the Concept of Jurisdiction in Human Rights Law and Public International Law

Bankovic is one of the few admissibility decisions to have prompted an outpouring of critical commentary.61 This is mainly owing to the Court’s conflation of the concept of jurisdiction under Article 1 of the ECHR with its conceptualisation in public international law. This then prompts the question: what is the relationship between the concept of jurisdiction as embodied in human rights treaties and the notion of jurisdiction in public international law? In public international law, jurisdiction refers to the limit and scope of states’ legal powers to regulate the conduct of persons and the consequences of events in the exercise of their sovereignty.62 It is not a unitary concept;63 rather, there are three forms of jurisdiction recognised in public international law: (i) jurisdiction to prescribe, (ii) jurisdiction to enforce, and (iii) jurisdiction to adjudicate. The first type of jurisdiction refers to a state’s power to create legal rules; the second relates to a state’s authority to enforce those rules; and the third involves the power of states’ judicial bodies to receive, try and determine legal disputes.64 A state normally exercises these three forms of jurisdiction within its own territory, but, to some extent, they can also be exercised in an extraterritorial context. As mentioned in Bankovic, there may be several bases for the extraterritorial exercise of the jurisdiction to prescribe.65 For instance, under the principle of nationality (active personality), a state may prosecute and punish one of its nationals for crimes committed beyond its borders on the sole

59  Ibid., para. 62. 60  Ibid., para. 82. 61  Michael O’Boyle (n. 6), 125. 62   Vaughan Lowe and Christopher Staker, ‘Jurisdiction’ in Malcolm D. Evans (eds.) International Law (Oxford: Oxford University Press, 2010), 313. 63  Marko Milanovic (n. 10), 420. 64  Ibid. 65  Bankovic (n. 35), para. 59; Vaughan Lowe and Christopher Staker (n. 62), 320.

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ground of nationality.66 By way of another example, the protective principle can trigger the criminal jurisdiction of a state in respect of events or persons that may pose a threat to its essential interests or endanger its society, such as international drug trafficking.67 However, such bases for jurisdiction are limited and can be exercised only within (international) law. In other words, the concept of jurisdiction in general international law exclusively refers to a legal power or authority. When it is extended beyond national borders, it cannot be exercised in a way that infringes the sovereignty of other states.68 For example, the jurisdiction to enforce cannot be exercised in the territory of another state without the consent of that state.69 Having established that the notion of jurisdiction in general international law refers only to legal authority, it is then necessary to examine whether the concept is treated in exactly the same manner in human rights law, as Bankovic suggests, or, alternatively, whether it encompasses any other form of authority or power that may also trigger states’ jurisdiction. In this respect, a brief discussion of the relevant jurisprudence may be helpful. The Lopez Burgos case dealt with by the Human Rights Committee (HRC) provides a good starting point for comparing and contrasting the meaning of the concept of jurisdiction in public international law and its meaning in human right treaties. In this case, the Committee did not appear to establish responsibility on the basis of the legal authority exercised by the respondent state party.70 Lopez Burgos, a Uruguayan trade-union leader, fled to Argentina to escape harassment by national authorities.71 In 1976, with the assistance of Argentinean paramilitary groups, he was kidnapped and secretly detained in Buenos Aires for about two weeks.72 When dealing with the state party’s objection as to the admissibility of the communication,73 the HRC held that: The reference in article 1 of the Optional Protocol to ‘individuals subject to its jurisdiction’ does not affect the above conclusion because the reference in that article is not to the place where the violation occurred, but rather to the relationship between the individual and the State in relation 66   Vaughan Lowe and Christopher Staker, ibid., 323; Cedric Ryngaert, Jurisdiction in International Law (Oxford University Press, 2008), 89. 67  Vaughan Lowe and Christopher Staker, ibid., 326. 68  Marko Milanovic (n. 10), 422. 69  Vaughan Lowe and Christopher Staker (n. 62), 335. 70  Lopez Burgos v. Uruguay (1981) Communication No. R.12/52, U.N. Doc. Supp. No. 40 (A/36/40). 71  Ibid., para. 2.1. 72  Ibid., para. 2.2. 73  Ibid., para. 4.

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to a violation of any of the rights set forth in the Covenant, wherever they occurred.74 As this statement shows, the HRC established the jurisdictional link between Mr. Burgos and the respondent state through the relationship between them. But what was the nature of this relationship? It is not clear from the statement whether the Committee regarded the concept of jurisdiction as carrying the meaning that it does under public international law.75 In this case, Argentina’s consent to operation of foreign agents on its soils and the nationality of the victim could be said to be the determining factors in deciding whether Mr. Burgos fell under the jurisdiction of Uruguay. However, the Committee did not discuss these points in detail; it merely stated that there was a relationship between the victim and the respondent government without defining the nature of that relationship. An examination of Committee member Christian Tomuschat’s individual opinion appended to Lopez Burgos is helpful in exploring what the nature of that relationship was—something that the HRC itself failed to clarify. The majority of the Committee held that Article 5 of the ICCPR barred the respondent government from perpetrating violations of the Covenant in the territory of another state—violations which it could not commit on its own territory.76 Tomuschat disagreed with the majority’s reference to Article 5 in delineating the extraterritorial reach of the Covenant.77 In his view, the term ‘within its territory’ included in Article 2(1) of the ICCPR ought to be construed by consulting the relevant preparatory work.78 As noted by Tomuschat, the drafters of the Covenant were aware of the practical problems that would make it difficult for a member state to ensure that full Covenant rights were granted to citizens of countries under foreign military occupation or to the state’s own citizens living abroad.79 They thus confined state parties’ obligations under the ICCPR to their respective national 74  Ibid., para. 12.2. 75  Hugh King (n. 2), 526. 76  Lopez Burgos v. Uruguay (n. 70), para. 12.3. See also Article 5(1) of the ICCPR, which states that: “nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant”. 77  See Christian Tomuschat’s Individual Opinion appended to the Communication (n. 70). 78  Ibid. 79  Ibid. For example, the US representative, Eleanor Roosevelt, stressed that the US had concerns about providing all guarantees to the citizens of countries under US occupation. UN Doc. E/CN.4/365, 14 (1950) (U.S. proposal).

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territories.80 According to this interpretation of Article 2—which also draws support from those who claim that human rights treaties cannot be applied in times of armed conflict and occupation81—extraterritorial human rights obligations can arise only in relation to states’ diplomatic and consular activities. If this is the case, then the notion of extraterritorial jurisdiction envisaged in the ICCPR would mainly be reflective of its conceptualisation under public international law. Tomuschat, however, disagreed with this approach. Even though he acknowledged the drafters’ intention in restricting in principle the applicability of the ICCPR to national territories, Tomuschat argued that it would be absurd to claim that states cannot be held responsible for their extraterritorial activities. In particular, he stated that the drafters never intended to give state parties unlimited power to carry out actions that would endanger the freedom and personal integrity of their citizens residing abroad. Tomuschat, therefore, concluded that Mr. Burgos fell within the jurisdiction of Uruguay.82 It is clear that Tomuschat’s reasoning was not based on a legal relationship between the respondent State and the victim. Rather, it was established through the factual control exercised by agents of the state over Mr. Burgos. However, Tomuschat’s statements left one issue unclear: whether establishing extraterritorial jurisdiction through a factual relationship was possible only between a state and its citizens living abroad. What if a state’s agents have factual control over the citizens of another country in a territory beyond its national borders? In this respect, General Comment 31 of the HRC is helpful. The Committee held that: The enjoyment of Covenant rights is not limited to citizens of States Parties but must also be available to all individuals . . . who may find themselves in the territory or subject to the jurisdiction of the State Party. This principle also applies to those within the power or effective control of the forces of a State Party acting outside its territory, regardless of the circumstances in which such power or effective control was obtained,

80  Christian Tomuschat (n. 70). 81  Michael Dennis, ‘Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation’ (2005) 99 American Journal of International Law 119; Egon Schwelb, ‘Some Aspects of International Covenants on Human Rights of December 1966’ in A. Eide & A. Schou (eds.) International Protection of Human Rights Proceedings of the Seventh Nobel Symposium (Interscience, 1968). 82  Christian Tomuschat (n. 70).

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such as forces constituting a national contingent of a State Party assigned to an international peace-keeping or peace-enforcement operation.83 This view finds support in the case-law of the ECtHR. In Loizidou v. Turkey, concerning the violation of the right to property of the applicant, who was prevented from enjoying her ownership of a certain plot of land in northern Cyprus, the Court established the jurisdictional link between the applicant and the respondent state on the basis of the control exercised by Turkey through its own forces or via the subordinate local administration.84 The Strasbourg Court did not take into account the lawfulness of Turkey’s military action in northern Cyprus.85 Nor did it consider the case from the viewpoint of whether or not Turkey’s control was an extension of its municipal power to the occupied territory. In its judgement, the Court heavily focused on the effective control that Turkey exerted over the territory and its inhabitants,86 which, by its very nature, was a question of fact.87 The foregoing examination of the notion of jurisdiction in human rights law and its conceptualisation in public international law demonstrates that the two are not identical.88 The concept of jurisdiction under public international law, as explained above, refers mainly to the extension of a state’s lawful competence beyond its own borders. In contrast, the notion of jurisdiction in the ECHR and the ICCPR relates to a factual relationship between the state and individuals; it does not take into account the legality of extraterritorial state activities. Whether a person falls under the jurisdiction of a state within the meaning of human rights law is different from the issue of the legality of the impugned conduct.89 As will presently be discussed, human rights law requires the exercise of effective control over a person or a portion of territory. Consequently, treating the concept of jurisdiction under human rights law in the same way as it is regarded in public international law can lead to absurd

83  Human Rights Committee, ‘General Comment 31 on the Nature of the General Legal Obligation Imposed on States Parties to the Covenant’ (2004) CCPR/C/21/Rev.1/Add. 13, para. 10. 84  Loizidou v. Turkey (Preliminary Objections)(n. 51), para. 62. 85  Ibid. 86  Loizidou v. Turkey (Merits) (Application no. 15318/89) ECHR 18 December 1996, para. 57. 87  Marko Milanovic (n. 10), 423. 88  Milanovic, ibid.; Olivier De Schutter (n. 9), 9. 89  Michal Gondek, ‘Extraterritorial Application of the European Convention on Human Rights: Territorial Focus in the Age of Globalization’ (2005) 52 Netherlands International Law Review 349, 364.

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results.90 If the meaning of jurisdiction under human rights law is simply reflective of that in public international law, then a state could be held responsible only for those human rights violations arising out of its legal extraterritorial activities. It would be impossible to scrutinise alleged violations of major human rights treaties that occur as a consequence of unlawful extraterritorial state activities.91 However, to say that the concepts of jurisdiction in human rights treaties and under public international law are not identical does not necessarily mean that states’ obligations cannot be triggered on the basis of a legal relationship. Both forms of authority may bring an event or a person under the jurisdiction of a state.92 The aim of the discussion here is to show that the jurisdiction clause in Article 1 of the ECHR is not purely about a legal relationship between an individual and a state. As will be seen in the following section, which critically examines the Court’s conclusions in Bankovic, the ECtHR has not confined the meaning of the jurisdiction clause in Article 1 solely to that of a legal relationship. 5

The ECtHR’s Approach to Extraterritorial Jurisdiction after Bankovic

5.1 Overview The conclusions of the ECtHR in Bankovic, as well as demonstrating a flawed understanding of the concept of jurisdiction, also contain other elements that are worthy of scrutiny. This is best done by exploring how the Court’s postBankovic jurisprudence refined, changed and overturned its arguments relating to espace juridique and divisibility of Convention obligations through a cause-and-effect notion of jurisdiction. The Court’s approach to extraterritorial jurisdiction has mostly crystallised into one of two forms: effective authority and control over (i) an individual (personal model) or (ii) a territory (spatial model). A case falling under one or both of these categories may have significant implications for the Court’s decision in Bankovic. 5.2 Cases of Extraterritorial Jurisdiction over a Person There have been several cases where the ECtHR has established the jurisdictional link between a state and an individual through the authority and control 90  Ibid. 91  Ibid. 92  Hugh King (n. 2), 538.

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of the state’s agents (the personal model of extraterritorial jurisdiction). This has mostly been the case in relation to extraterritorial detention activities.93 More importantly, the Court has done so without attaching importance to the question whether the relevant event took place within the legal space of the contracting parties. In this author’s view, in Issa and Others v. Turkey, the Court departed to a certain extent from its dictum regarding espace juridique.94 Issa concerned alleged abuses of the applicants by Turkish forces conducting a cross-border operation in northern Iraq.95 Even though the Court found the applicants’ complaint inadmissible for their failure to substantiate that they had been under the authority and control of Turkish forces at the relevant time,96 the Court’s reasoning as to whether the applicants came under the jurisdiction of Turkey within the meaning of Article 1 of the ECHR is of the utmost importance. In relation to the respondent government’s belated submission that the application was to be declared incompatible ratione loci with the Convention as a result of Bankovic,97 the Court applied two tests. First, the Court, under the spatial model of jurisdiction, assessed whether Turkey had effective control over the relevant region of northern Iraq: The Court does not exclude the possibility that, as a consequence of this military action, the respondent State could be considered to have exercised, temporarily, effective overall control of a particular portion of the territory of northern Iraq. Accordingly, if there is a sufficient factual basis for holding that, at the relevant time, the victims were within that specific area, it would follow logically that they were within the jurisdiction of Turkey (and not that of Iraq, which is not a Contracting State and clearly does not fall within the legal space (espace juridique) of the Contracting States (see the above-cited Bankovic decision, § 80).98 The Court thereby left open the possibility for the application of the Convention outside the espace juridique of the Contracting States. However, 93  Françoise Hampson & Ibrahim Salama, ‘Working Paper on the Relationship between Human Rights Law and International Humanitarian Law’ (21 June 2005) E/CN.4/ Sub.2/2005/14, para. 86. 94  Issa (n. 9). 95  See the applicants’ version of facts at paras. 12–24. 96  Ibid., para. 82. 97  Ibid., para. 61. 98  Ibid., para. 74.

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with respect to this test, the Court concluded that the relevant area was not under the effective overall control of Turkey.99 Yet, the Court did not stop there, and went on to consider whether the applicants could be brought under the jurisdiction of Turkey on another ground.100 The Court held that the authority and control of the state’s agents (the personal model) could also establish a jurisdictional link between the applicants and the respondent State.101 The ECtHR’s approach with regard to the second test is also extremely important. The Court acknowledged that a person could fall under the jurisdiction of a state outside the legal space of the Convention without that state exercising effective overall control over the land where the event in question took place. In its later decisions or judgments, the Court plainly made it clear that once a person falls under the effective control of a state’s agents, a jurisdictional link can be established for the purpose of Article 1 of the Convention, irrespective of wherever the event in question might have occurred. In Ocalan, concerning the applicant’s arrest and subsequent detention by Turkish forces in an aircraft in the international zone of Nairobi airport, the Court held that once the applicant was handed over to Turkish officials by Kenyan ones, he came under the jurisdiction of Turkey through the personal model.102 Kenya is obviously not within the espace juridique of the Convention. Nor could Turkey be said to have exercised effective control in that part of Kenyan territory. In Isaak v. Turkey, in which the applicants were beaten during a fight between Turkish and Greek demonstrators in the UN buffer zone in Cyprus, the Court established that the Turkish forces allowed the Turkish-Cypriot demonstrators and the police of the subordinate local administration to enter the buffer zone.103 Thus, the incidents came under the authority and control of the respondent state’s agents, the Turkish soldiers. On that basis, the Court established the jurisdictional link between the applicants and Turkey, even though the incident happened in the UN buffer zone.104 In Pad and Others v. Turkey,105 the Court even went so far as to deny an argument based on espace juridique. The background of the case concerns the alleged torture and killing of seven Iranians in the north-west of Iran by Turkish 99  Ibid., para. 75. 100  Ibid., para. 76. 101  Ibid., para. 71. 102  Ocalan v. Turkey (Application no. 46221/99) ECHR 12 May 2005, para. 91. 103  Isaak v. Turkey (Application no. 44587/98) ECHR 28 September 2006, para. 119. 104  Ibid., para. 114. 105  Pad and Others v. Turkey (Application no. 60167/00) ECHR 2007-VI.

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forces. The Court held that a state may be held responsible under Article 1 if a person or an event falls under the authority and control of its agents operating in the territory of another state, which does not necessarily have to be within the espace juridique of the Contracting States.106 It is particularly interesting to note that in this case the ECtHR moved towards a cause-and-effect notion of jurisdiction. Salama and Hampson argue that the extraterritorial jurisdiction of a state can be established if that state has control over the infliction of the alleged violation.107 This basis of jurisdiction is different from those that are based on control over a territory or a person. A typical example of this form of jurisdiction concerns the case of aerial bombings. As will be discussed below, applying this notion of jurisdiction is particularly problematic. The ECtHR’s approach to such a conception of jurisdiction in Pad is important. The Court based its assessment of whether there was a jurisdictional link between the respondent state and the victims on the government’s admission that the fire discharged from Turkish helicopters caused the victims’ deaths. The Strasbourg Court added that determining the location of the incident— in particular, whether it occurred within or outside Turkish territory—was not a decisive factor in concluding that Turkey exercised extraterritorial jurisdiction.108 Thus, the Court seemed to have moved towards acknowledging the cause-and-effect version of jurisdiction. Lawson argues that, following its decision in Bankovic, the Court has gradually begun to accept the cause-and-effect notion of jurisdiction, which reflects the view that ‘control entails responsibility’.109 While Pad can be seen as an important milestone in this respect, Medvedyey explicitly rejected the novel approach that Pad had suggested. Medvedyey concerned the detention of crew members of a merchant ship intercepted by French authorities on the high seas on the alleged ground of drug smuggling. The Court held that once the crew members were detained, they came under the full and exclusive authority of French forces (agents). As a result, they fell under the jurisdiction of France through the personal model of extraterritorial jurisdiction.110 In Medvedyev, the Court also held that in certain exceptional cases the acts of a contracting 106  Ibid., para. 53. 107  Françoise Hampson & Ibrahim Salama (n. 93), para. 89. 108  Pad and Others v. Turkey, (n. 105), para. 54. 109  Rick Lawson (n. 4), 84; Rick Lawson, ‘Really Out of Sight? Issues of Jurisdiction and Control in Situations of Armed Conflict under the ECHR in Antoine Buyse (eds.) Margin of Conflict (Intersentia, 2010), 76. 110  Medvedyev and Others v. France (Application no. 3394/03) ECHR 29 March 2010, para. 67.

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party performed, or producing effects, beyond its own national territory can be considered as an exercise of jurisdiction within the meaning of Article 1. The Court, however, added that the cause-and-effect notion of jurisdiction is excluded from the scope of Article 1, where, as in Bankovic, ‘what was at issue was an instantaneous extraterritorial act’.111 5.3 Cases of Extraterritorial Jurisdiction over a Territory The above discussion regarding extraterritorial jurisdiction exercised through the personal model helped identify a trend in the Court’s jurisprudence. It is now quite settled that a person can come within the jurisdiction of a contracting party if he or she falls under the effective authority and control of that state’s agents, no matter where in the world they might be operating. Whether the Court’s post-Bankovic case-law concerning extraterritorial jurisdiction over a territory indicates a further movement in this direction should also be explored. The cases where the ECtHR applied the spatial model of extraterritorial jurisdiction have mostly arisen out of events occurring within the Council of Europe zone. In Ilascu and Others v. Moldova and Russia, the Court examined whether the applicants’ arrest, pre-trial detention and conviction could be brought under the jurisdiction of the respondent states.112 This case was complicated, as the applicants lodged complaints against Russia and Moldova for the acts of the Moldovan Republic of Transnistria (MRT). The MRT was set up in a region of Moldova through a unilateral secession supported by the Russian Federation.113 The applicants claimed that both Moldova and Russia had to be responsible for the conduct of the MRT.114 In dealing with the case, the Court, with respect to Russia, held that since the MRT was under the effective control of Russia, or, at least, subject to its decisive influence, the applicants could come within the jurisdiction of the Russian Federation.115 As to Moldova, the Court stated that, as the sole legitimate government according to international law, it was to have authority over the whole territory.116 Therefore, the applicants were within the jurisdiction of Moldova within the meaning of Article 1.117 The Court, however, 111  Ibid., para. 64. 112  Ilaşcu and Others v. Moldova and Russia (Application no. 48787/99) ECHR 8 July 2004. 113  Ibid., para. 392. 114  Ibid., para. 306. 115  Ibid., paras. 392–395. 116  Ibid., para. 330. 117  Ibid., para. 335.

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argued that the responsibility of Moldova would be determined depending on the extent to which it discharged its positive obligations to secure the rights guaranteed to the applicants under the Convention through taking diplomatic, economic and judicial measures.118 In its conclusion, the Court found that Moldova had failed to fulfil its positive obligations.119 In Ivantoc and Others v. Moldova and Russia, which concerned facts and complaints connected with, and very similar to, those of Ilascu, the ECtHR adopted the same approach in examining whether the applicants fell under the jurisdiction of Moldova.120 However, in this case, it concluded that Moldova sufficiently discharged its positive obligations to secure the rights under the Convention.121 The Court’s other major case concerning effective control over a territory had a similar background to that of Ilascu.122 Consequently, most of the Court’s analysis revolved around the extent to which the respondent states met their positive obligations, as in Ilascu. Thus, such jurisprudence does not say a great deal about whether the territory over which effective control is exercised has to be within the espace juridique of the contracting states, as stipulated in Bankovic. In this respect, Hussein v. Albania and Others may have relevant implications.123 Saddam Hussein lodged a complaint with the Court alleging that several contracting parties had been involved in his arrest. The Court’s line of reasoning in Hussein was similar to that which it followed in Issa. It held that the applicant failed to prove that the relevant area of Iraq was under the effective control of the respondent states.124 Nor could he show that he fell under the authority and control of the agents of those states.125 Even though the Court found the application inadmissible,126 this decision opened the way for a spatial model of extraterritorial jurisdiction outside the legal space of the contracting parties.

118  Ibid., paras. 331 and 336. 119  Ibid., para. 352. 120  Ivantoc and Others v. Moldova and Russia (Application no. 23687/05) ECHR 15 November 2011, para. 107. 121  Ibid., para. 111. 122  Assanidze v. Georgia (Application no. 71503/01) ECHR 2004-II; Chiragov and Others v. Armenia (Application no. 13216/05) ECHR 14 December 2011. 123  Hussein v. Albania and Others, (Application no. 23276/04) ECHR 14 March 2006. 124  Ibid. 125  Ibid. 126  Ibid.

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Consistency in the Court’s Jurisprudence on Extraterritorial Jurisdiction The foregoing discussion demonstrates how the Court has progressively distanced itself from its obiter dicta in Bankovic, and brought its approach to extraterritorial jurisdiction in line with that taken by other international judicial bodies.127 For example, with respect to the extraterritorial applicability of the ICCPR, the HRC and the ICJ were of the view that the object and purpose of the Covenant do not allow state parties to escape from their obligations when exercising jurisdiction beyond their territories.128 In a similar vein, the ECtHR held that the Convention does not permit the contracting parties to perpetrate violations of the Convention within the territory of another state that it could not perpetrate in its own territory.129 The Court has departed from its dictum in Bankovic, according to which the term ‘jurisdiction’ in Article 1 of the ECHR refers solely to its meaning in public international law. Instead, it has come to apply the personal and spatial models of jurisdiction advocated by other judicial authorities.130 With respect to the former model, the Court has clearly argued that once a person falls under the effective control and authority of a state’s agents, a jurisdictional link can be established between the state and the individual, regardless of wherever those agents might have been operating.131 The Court’s position is similar to that of the HRC in Lopez Burgos. When Mr. Burgos was abducted by Uruguayan authorities on Argentinean soil, Argentina was not a party to the ICCPR.132 As a result, the Uruguayan agents were operating outside the legal space of the ICCPR. The Committee, however, established the jurisdictional link between Uruguay and Mr. Burgos based on the factual relationship that existed between them without having regard to the former point. As to the 5.4

127  See the Written Comments by a number of NGOs, such as JUSTICE, 8, on the Al-Saadoon case. (Hereinafter: the Written Comment). 128  Lopez Burgos v. Uruguay (n. 70), para. 10.3; Celiberti de Casariego v. Uruguay, (1979) (Nos. 52/1979 and 56/1979), paras. 12.3 and 10.3; Legal Consequences of the Construction of a Wall (Advisory Opinion) [2004] ICJ, para. 109. 129  Issa (n. 9), para. 71. 130  Human Rights Committee, ‘General Comment 31’ (n. 83), para. 10; Human Rights Committee, Concluding Observations: United Kingdom of Great Britain and Northern Ireland (30 July 2008) UN Doc. CCPR/C/GBR/CO/6, para. 14; The Wall case (n. 128), para. 109; Case Concerning Armed Activities on the Territory of Congo (Democratic Republic of the Congo v. Uganda) [2005] ICJ, para. 180; Inter-American Commission, Victor Saldano v. Argentina (1999) Report No. 38/99 para. 19. 131  For instance, see Pad and Others v. Turkey (n. 105). 132  The Written Comment (n. 127), 8–9.

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latter model of jurisdiction, the Court held that the territory over which a contracting party may be exercising effective control does not necessarily have to be within the espace juridique of the contracting states.133 However, claiming that the Court’s jurisprudence on extraterritorial jurisdiction has become more principled and in line with that of other judicial bodies is not to say that it is free from controversy and inconsistency.134 As mentioned above, the Court’s attitude towards the cause-and-effect notion of jurisdiction has been contentious in some respects, as the case of aerial bombings indicates. A person who is killed as a consequence of a bombing raid carried out by a state’s F-16 flying across the territory of another state will not come under the jurisdiction of the bombing state according to the Court’s ruling in Medvedyev.135 However, if the same F-16 carries out a bombing attack within the borders of its home state and causes someone’s death, then the incident will fall within the jurisdiction of the home state, as the state is assumed to have full control over its national territory.136 The recent atrocity that took place on the south-eastern border of Turkey provides a good example.137 Turkish war planes attacked thirty-five people crossing the border from Iraq into Turkey on the alleged ground that these individuals were terrorists. Immediately after the incident, it became a matter of dispute as to whether the bombing took place on the Turkish or the Iraqi side of the border. If one adopts the Court’s position regarding the concepts of jurisdiction, the victims who happened to be smugglers would fall under the jurisdiction of Turkey if the bombing occurred on Turkish territory, since it is assumed that states exert complete control within their own territories. Alternatively, if the bombing was carried out in Iraq, the incident would not fall under the jurisdiction of Turkey for the purpose of Article 1 of the Convention. The matter becomes even more complicated when the Court’s view in Pad, seen as an exception to the cause-and-effect understanding of jurisdiction, is taken into account. 133  See Hussein v. Albania and Others (n. 123). 134   Saram Miller, ‘Revisiting Extraterritorial Jurisdiction: A Territorial Justification for Extraterritorial Jurisdiction under the European Convention’ (2009) 20 European Journal of International Law 1223, 1226; Marko Milanovic (n. 10), 447. 135  Medvedyev and Others v. France (n. 110), para. 64. 136   Françoise Hampson, ‘The Relationship between International Humanitarian Law and Human Rights Law from Perspective of a Human Rights Treaty Body’ (2008) 90 International Review of the Red Cross 549, 570. 137  See the details at (last accessed on 5 May 2015).

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The reason why the jurisprudence of the European Court in Strasbourg has not been straightforward is obvious: despite the harsh criticism it has faced, the Court has not been willing to simply overturn Bankovic. Even though the Court, as discussed above, has progressively changed some of its arguments since Bankovic, the case still stands as a valid precedent. However, the Court’s judgment in Al-Skeini seems to have significantly amended Bankovic.138 Hence, it is necessary to examine the Court’s reasoning and findings in Al-Skeini in light of the background set out above. 6

The ECtHR’s Judgment in Al-Skeini

6.1 Overview Al-Skeini concerned an application lodged with the ECtHR by the relatives of six persons who were killed or fatally injured as a consequence of British soldiers’ operations in Basrah. The first applicant’s unarmed brother (Hazim Al-Skeini) was shot dead on 4 August 2003 by a commander of the UK forces patrolling in the Al-Majidiyah area of Basrah without any verbal warning being given.139 The second applicant’s husband went to visit his brother-in-law at his home in Basrah.140 The British soldiers raided the house, and, during the operation, the applicant’s husband was shot and subsequently died on 7 November 2003 in the military hospital he was taken to.141 The third applicant’s wife was killed in November 2003 by machine-gunfire that came from outside their home, when they and their family were having dinner.142 The fourth applicant’s brother was mortally wounded by the gunfire of British soldiers when returning from work on 24 August 2003.143 The fifth applicant alleged that his 15-year-old son had been arrested, beaten up and forced into the waters of the Shatt Al-Arab by British soldiers, where he was found dead by his father on 10 May 2003, several days after he had disappeared.144 The sixth applicant’s son (Baha Mousa) was arrested on 14 September 2003 by British forces.145 He was 138  Al-Skeini and Others v. the United Kingdom (Application no. 55721/07) ECHR 7 July 2011. (Hereinafter: the Al-Skeini case). 139  Ibid., paras. 34–36. 140  Ibid., para. 40. 141  Ibid. 142  Ibid., paras. 43 and 44. 143  Ibid., paras. 47 and 48. 144  Ibid., paras. 55 and 56. 145  Ibid., para. 63.

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killed in the military base where he had been held in custody. When identifying the corpse, the father noticed that his son’s body and face were fatally wounded, his nose had been broken, and part of his body had been torn away.146 6.2 The Parties’ Submissions with Respect to the Concept of Jurisdiction With regard to the issue of jurisdiction, the UK government in its submissions drew heavily on Bankovic. It contended that the notion of jurisdiction is territorial,147 and that the exceptional basis under which this can be extended under Article 1 of the Convention to include territory over which a state has effective control is strictly limited to the legal space of the Convention.148 The respondent government argued that since Iraq fell outside the espace juridique of the contracting states, the exceptional ground for jurisdiction could not apply.149 Furthermore, it asserted that, in any case, it did not exercise effective control over the whole or any part of Iraq during the time in question.150 Nor did the shooting bring the applicants’ relatives under the authority and control of the British soldiers through a cause-and-effect notion of jurisdiction.151 In addition, the government held that the fact that its troops exercised military power to contribute to security and stability in Iraq did not mean that it exercised public functions or governmental powers enjoyed by the US-led occupying power, the Coalition Provisional Authority (CPA).152 Otherwise, it would have been required to extend the full panoply of rights contained in the Convention to all Iraqis. The applicants contended that, even though the notion of jurisdiction under Article 1 is essentially territorial, the Court’s post-Bankovic jurisprudence had made it clear that the extraterritorial exercise of jurisdiction could be possible through the spatial and personal bases of jurisdiction.153 They argued that, as the occupying power in south-east Iraq, the region was under the effective control, and thus the extraterritorial jurisdiction, of the UK, regardless of the fact that Iraq fell outside the legal space of the Convention.154 The applicants also asserted that their relatives were under the authority and control of the 146  Ibid., para. 64. 147  Ibid., para. 109. 148  Ibid., para. 110. 149  Ibid., para. 112. 150  Ibid. 151  Ibid., para. 116. 152  Ibid., paras. 113 and 117. 153  Ibid., paras. 120–122. 154  Ibid., paras. 125 and 126.

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British soldiers.155 In their view, even though extraterritorial arrest or detention of a person could be seen as classic examples of state agent authority, the personal model of jurisdiction cannot be said to be limited to only those cases.156 They asserted that the shooting of the applicants’ relatives created a particular relationship between them and the soldiers, who had responsibility for public order.157 In the alternative, they submitted that the second, fourth, fifth and sixth applicants were under the jurisdiction of the UK, as the British soldiers had sufficient authority and control over them.158 6.3 The Court’s Assessment of the Case In the first instance, the ECtHR laid down certain principles that overturned the bulk of the arguments it had put forward in Bankovic. The Court held that, while the notion of jurisdiction is primarily territorial, there have been a number of exceptional bases for making a finding of extraterritorial jurisdiction.159 First, ‘State agent authority and control’ could amount to the exercise of jurisdiction by a contracting party.160 As an example, the Strasbourg Court stated that the acts of diplomatic and consular agents operating in the territory of another state in accordance with international law could give rise to an exercise of extraterritorial jurisdiction.161 In doing so, the Court confirmed that the concept of jurisdiction under Article 1 is not solely confined to a factual relationship between the state and individual. As another example of circumstances giving rise to ‘State agent authority and control’, the ECtHR referred to the situation in which a contracting party exercises all or some public powers in a foreign territory, where it operates by the consent or invitation of the government of that territory.162 In this respect, it should be noted that the Court contemplated ‘the exercise of public powers’ as a criterion for the personal basis of jurisdiction rather than the spatial one. The last category that the ECtHR noted in connection with ‘State agent authority and control’ as a basis for jurisdiction was the use of force by a 155  Ibid., para. 123. 156  Ibid. 157  Ibid., para. 124. 158  Ibid. 159  Ibid., paras. 131 and 132. The Strasbourg reiterated its stance in Al-Skeini in Chagos Islanders. Chagos Islanders v. the United Kingdom (Application no. 35622/04) ECHR 11 December 2012, para. 70. 160  Al-Skeini (n. 138), para. 133. 161  Ibid., para. 134. 162  Ibid., para. 135.

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state’s agents carrying out a mission abroad.163 Until Al-Skeini, the classic situations in which the ‘State agent authority’ basis of jurisdiction were deemed to exist were: (i) being taken into physical custody;164 (ii) detention in a military prison;165 and (iii) being under the full, total and exclusive control of a state’s soldiers operating outside their own territory.166 In Al-Skeini, the Strasbourg Court adopted a new approach in relation to that framework. It held that the decisive factor is not the control ‘over the buildings, aircraft or ship in which the individuals were held’;167 it is, rather, about the physical power and control exerted over the individual in question.168 More importantly, the Court added that, when a state’s agents exercise authority and control over a person, the state has to extend to him or her the Convention rights, which could be divided and tailored according to the circumstances of the case.169 The ECtHR listed ‘effective control over an area’ as the second exceptional ground to the principle of territoriality. The Court held that a state has responsibility to grant the entire range of Convention rights to the inhabitants of the territory over which it exercises effective control.170 Effective control does not necessarily mean that the state must exercise detailed control over the area in question. In the Court’s view, whether effective control exists can be appraised according to the facts of the case, such as the scale of the state’s military forces in the territory or the economic and political support given to the local subordinate administration.171 In addition to affirming the personal and spatial bases of jurisdiction as exceptions to the principle that the notion of jurisdiction is essentially territorial, the Court laid down a principle as to espace juridique. It stated that, even though the Convention is the ‘constitutional instrument of European public

163  Ibid., para. 136. 164  Ocalan v. Turkey (n. 102) para. 91. 165  Al-Saadoon and Mufdhi v. the United Kingdom (Application no.61498/08) ECHR 04 October 2010, paras. 86–89. 166  Ibid.; Medvedyev and Others v. France (n. 110), para. 67. 167  Al-Skeini (n. 138), para. 136. 168  Ibid., para. 136. 169  Ibid., para. 137. 170  Ibid., para. 138. 171  Ibid.

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order’,172 the jurisdiction clause under Article 1 can encompass situations outside the Convention’s legal space.173 As is clear from the above discussion, in explicitly annulling the Court’s dictum in Bankovic, Al-Skeini represents good law. However, the Strasbourg Court’s reasoning in Al-Skeini is not free from controversy. In assessing whether the applicants’ relatives fell within the jurisdiction of the UK, the Court began by describing the background to the UK’s presence in Iraq. It noted that the US, the UK and their coalition partners entered Iraq with the aim of overthrowing the Ba’ath regime. In May 2003 the major combat operations ended, and the US and the UK became occupying powers within the meaning of Article 42 of the Hague Regulations.174 In their joint letter to the Security Council, the US and the UK announced that they had created the CPA as the occupying power vested with temporary governmental powers.175 The UK was in charge of the administration and security of south-east Iraq, including Al-Basrah. Against this background, the Security Council authorised the MNF to contribute to the security and stability of Iraq.176 After setting out these facts, the Court then rushed into arguing that, since the UK exercised ‘some of the public powers normally to be exercised by a sovereign government’—by virtue, in particular, of its having authority and responsibility for the maintenance of security in the region—the death of the applicants’ relatives, which had occurred during the course of security operations, fell under the jurisdiction of the UK. With regard to the basis for jurisdiction, the Grand Chamber of the Court stated that the deceased persons were under the ‘authority and control’ of the British solders undertaking security operations.177 Although it had regard to the fact that the UK, as one of the occupying powers, exercised some governmental and public powers, the Court did not rely on the ‘effective control over an area’ basis of extraterritorial jurisdiction. In particular, the ECtHR did not explore whether the situation of occupation could amount to an exercise of effective control over the territory. Nor did the Grand 172  Behrami and Saramati (n. 12), para. 145; Bosphorus Hava Yollari Turizm v. Ireland (App. No. 45036/98) ECHR 30 June 2005, para. 156; Magdalena Forowicz, The Reception of International Law in the European Court of Human Rights (Oxford: Oxford University Press, 2011), 390. 173  Al-Skeini (n. 138), paras. 141 and 142. 174  Ibid., para. 143. 175  Ibid., paras. 144–146. 176  Ibid., para. 148. 177  Ibid., para. 149.

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Chamber invoke the classic formulation of ‘effective control over a person’ basis of jurisdiction, including the application concerning Baha Mousa, who was killed in the military prison.178 The Court instead applied a cause-and-effect notion of jurisdiction. It established the jurisdictional link on the basis of the control the British soldiers exercised over the person killed during the security operations. However, the Court’s approach does not mean that any form of control could give rise to an exercise of jurisdiction and therefore responsibility. The reason why the incidents in question, which could be seen as comparable to an aerial bombing, fell under the jurisdiction of the UK was because the respondent state exercised some public powers in south-east Iraq. Therefore, the Court’s judgment was not based on a mere cause-and-effect approach to the issue of jurisdiction. Instead the Court has reconciled such a cause-and-effect approach with the ‘exercise of public powers’, a factor more likely to relate to the ‘effective control over an area’ basis of jurisdiction, and it has created a new basis or ground under the ‘State agent authority and control’ basis of jurisdiction.179 A Reflection on Al-Skeini: The Relationship between the Territorial and Material Scopes of the Application of Human Rights The principles enunciated by the ECtHR in Al-Skeini altered its decision in Bankovic to a great extent, by, for example, explicitly eradicating the concept of espace juridique. Nonetheless, the analysis conducted above indicates that Al-Skeini resulted in new inconsistencies in the Court’s approach to the issue of extraterritorial jurisdiction. For example, according to Al-Skeini, an aerial bombing in a foreign territory would still fall outside the ambit of the jurisdiction clause under Article 1. The security operations that caused the death of the applicants’ relatives fell under the jurisdiction of the UK because of the public powers enjoyed by the respondent state.180 The Court also left uncertain the threshold of effective control to be exercised over a territory for the purpose of jurisdiction under Article 1. In Loizidou and Ilascu, the Court acknowledged the strength of the military presence in the area in question. The political and economic support given to, and the decisive influence exerted over, the subordinate local administration were considered 6.4

178  Al-Saadoon and Mufdhi v. the United Kingdom (n. 165), para. 140. 179  For a similar analysis of Al-Skeini, see Marko Milanovic, ‘Al-Skeini and Al-Jedda in Strasbourg’ (2012) 23 European Journal of International Law 121, 128–129; Cedric Ryngaert, ‘Clarifying the Extraterritorial Application of the European Convention on Human Rights’ (2012) 28 Utrecht Journal of International and European Law 57, 59–60. 180  Al-Skeini (n. 138), para. 149.

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the key criteria for determining effective control over a territory.181 However, in Al-Skeini, even though concluding that the UK was one of the occupying powers, the Court failed to ascertain whether the relevant part of Iraq could come within the jurisdiction of the UK through the ‘effective control over a territory’ basis of jurisdiction. Considering that Iraq falls outside the Convention’s legal space, the Court’s failure to make such an appraisal suggests that the effective control test to be applied outside the Council of Europe zone requires a higher threshold than those set out in Ilascu and Loizidou. If this is not the case, then what is the prerequisite level of control? Why can a situation of occupation not constitute the required threshold? The Court’s failure to deal with the UK’s possible effective control over south-eastern Iraq for the purpose of human rights law raises another important issue: the relationship between the type of extraterritorial jurisdiction and the scope of obligations owed by contracting states. The Grand Chamber held that a state exercising effective control over a territory is required to extend all Convention rights to all persons living in the relevant area.182 Had the Court established the jurisdictional link between the UK and the deceased persons through ‘effective control over a portion of territory’ basis of jurisdiction, the UK would then have had to provide the entire range of substantive rights enshrined in the Convention, because the Court held that Convention rights could be divided only under the ‘State’s agents authority and control’ basis of jurisdiction. However, the Court perhaps deliberately refrained from relying on the ‘effective control over a portion of territory’ basis of jurisdiction. Unlike the House of Lords in Al-Skeini,183 it did not delve into the question of whether the extent of public powers exercised by the UK as an occupying power amounted to the effective overall control test applied in Loizidou, Cyprus v. Turkey or Ilascu. Finding an exercise of “effective control over a territory” basis of jurisdiction would place a heavy burden on the UK. On the other hand, deciding otherwise would leave the applicants without protection—at least in relation to the first five applicants, since the sixth was killed in a military prison and thus could be brought under the jurisdiction of the UK through the personal basis of jurisdiction. However, the ECtHR could not remain oblivious to the protection of human rights of the applicants and their relatives. Thus, it applied another test lower181  Loizidou v. Turkey (Merits) (n. 86), paras. 16 and 56; Ilaşcu and Others v. Moldova and Russia (n. 112), para. 387. 182  Al-Skeini (n. 138), para. 138. 183  Al-Skeini v. Secretary of State [2007] UKHL (n. 33) paras. 123–124.

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ing or relaxing the general test that would trigger the UK’s obligations for its activities in Iraq. In other words, instead of claiming that the UK exercised effective control over the part of Iraq where its soldiers were operating, the Court sought to find another basis of jurisdiction, which would not require the UK to provide the entire range of Convention rights to the inhabitants of that part of Iraq according to the ‘effective control over a territory’ basis of jurisdiction. The Court had already followed this strategy prior to Al-Skeini. In Issa, the Court, after concluding that Turkey did not exercise overall control in the relevant part of northern Iraq, established the jurisdictional link between the applicants and Turkey on another ground: state agent authority and control over the person.184 If the Court had found that Turkey exercised effective control over the part of northern Iraq where its troops were operating, then, according to Loizidou, Cyprus v. Turkey or Ilascu, Turkey would have been obliged to provide all Convention rights to individuals residing in the area. However, since that was not the case, the Court lowered the standards of the test it applied and established the link between Turkey and the applicants through the ‘effective control over person’ model of jurisdiction. However, this was not an option for the Grand Chamber in Al-Skeini, since the first five applications did not conform to classic instances of the personal basis of jurisdiction, such as being detained or kept in custody. In the alternative, the Court could have relied on the cause-and-effect notion of jurisdiction, as the incidents giving rise to the deaths of the first five applicants’ relatives resulted from instantaneous acts. This approach was contemplated in Al-Skeini, when the case was before the UK Court of Appeal. Lord Justice Sedley stated that the applicability of the Convention to the UK should not be appraised on the basis of ‘enforceability as a whole’.185 Rather, it should depend on ‘whether it lay within the power of the occupying force to avoid or remedy the particular breach in issue’.186 However, at the time the Court of Appeal was dealing with the case, it was not possible to adopt such a cause-and-effect concept of jurisdiction, as Bankovic explicitly dictated that the Convention rights were not divisible.187 184  Issa (n. 9), paras. 71 and 76; Ralph Wilde, ‘Triggering State Obligations Extraterritorially: The Spatial Test in Certain Human Rights Treaties’ (2007) 40 Israel Law Review 503, 524. 185  Al-Skeini v. Secretary of State [2004] EWHC (n. 34), para. 198; Ralph Wilde, ibid., 525. 186  Al-Skeini v. Secretary of State [2004] EWHC, ibid., para. 198. 187  Bankovic (n. 35), para. 75; Ralph Wilde (n. 184), 525; John Cerone, ‘Jurisdiction and Power: The Intersection of Human Rights Law & the Law of Non-International Armed Conflict in an Extraterritorial Context’ (2007) 40 Israel Law Review 396, 441.

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In Al-Skeini, the Strasbourg Court therefore removed that obstacle by arguing that whenever a person falls under the authority and control of a state’s agent, the Convention’s rights can be ‘divided and tailored’, thereby establishing the jurisdictional link between the applicants’ relatives, including Baha Mousa, and the UK on that ground.188 However, as explained above, this does not encompass any exercise of a cause-and-effect type of jurisdiction, such as an aerial bombing. In the Court’s view, the level of control must at least reach a stage that could trigger the state’s jurisdiction under the ‘effective control over a person’ basis of jurisdiction. As the Grand Chamber held in Al-Skeini, that was the case in Iraq, since the UK exercised some public powers.189 Implications for Security Detention Cases during UN-authorised Security Missions The foregoing discussion clearly demonstrates that there is a certain relationship between the type of jurisdiction that a state may exercise over a territory or person and the extent of the human rights obligations it owes. If an exercise of jurisdiction is not found through the ‘effective control over a territory’ model, then the state would not be required to provide Convention rights in their entirety. It can also be argued that the scope of that state’s (positive) obligations vis-à-vis the individuals under its jurisdiction will be determined according to the level of authority exercised over those individuals or the territory where they might be living.190 This conclusion is crucial to determining the scope of human rights obligations of states contributing to UN-authorised missions in post-conflict territories. As stated above, the aim of this chapter is to offer a modest appraisal of the extent of states’ human rights obligations in relation to security detention practices undertaken by their soldiers in the context of UN-authorised missions. The previous chapter concluded that such practices ought to be attributable to TCNs, not to the UN. However, the relevant obligations of TCNs cannot be determined as if their forces were operating in their own territory. The application of human rights norms must be contextualised. To begin with, even though the cases originating from UN missions are mostly discussed on the basis of attribution, the fact that the security detention practices took place in an extraterritorial setting should be taken into account. Thus, the type of extraterritorial jurisdiction TCNs exercise over security detainees would have a significant effect on the extent of the obligations 6.5

188  Al-Skeini (n. 138), para. 137. 189  Ibid., para. 149. 190  John Cerone (n. 187), 440–441.

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they owe to such individuals. Most probably, the security detainees would fall under the jurisdiction of the states under the ‘State agents authority and control’ ground. As the ECtHR held in Al-Skeini, in cases where a state’s agents exercise ‘effective authority and control’ over a person, even if it may enjoy some degree of public power, that state is not required to grant the person all the Convention rights. In such cases, the Convention rights can be divided and tailored in accordance with the particular circumstances of the security detention in question. If so, then the question that immediately arises is how to delineate the extent and content of the states’ limited human rights obligations in relation to their security detention activities in post-conflict territories. 7

Identifying the Proper Methodology

7.1 Overview Evaluating the scope of states’ extraterritorial human rights obligations involves first identifying the appropriate methodology to be used. In the pre-Al-Skeini period, the ECtHR employed two different methods for dealing with the application of the Convention in an extraterritorial context. As discussed above, with respect to the spatial basis of jurisdiction, the Strasbourg Court developed the model whereby the contracting party exercising effective control over a portion of territory could be required to ensure that all the Convention’s rights were respected. In the Cyprus v. Turkey case, after concluding that Turkey was responsible for all acts of the local subordinate administration, the Court defined the extent of Turkey’s obligations as follows: Turkey’s “jurisdiction” must be considered to extend to securing the entire range of substantive rights set out in the Convention and those additional Protocols which she has ratified, and that violations of those rights are imputable to Turkey.191 As regards the personal basis of extraterritorial jurisdiction, the ECtHR has taken a case-by-case approach in determining states’ obligations for the extraterritorial activities of their agents. As discussed above, in Medvedyev, inter alia, the applicants, who had been detained for thirteen days at sea and subsequently held in police custody for two or three days upon their arrival in France,192 complained that they were not brought promptly before 191  Cyprus v. Turkey (n. 30), para. 77. 192  Medvedyev and Others v. France (n. 110), para. 108.

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a judge in accordance with Article 5(3) of the Convention.193 In its assessment of the complaint, the Court held that the delay in bringing the applicants before a judge could be justified by the existence of ‘wholly exceptional circumstances’.194 Since the applicants’ prompt appearance before a judge was materially impossible, the Court took into account the duration of the police custody when assessing whether the applicants were in effect brought promptly before a judge.195 The ECtHR took a similar approach in Ocalan, in which the applicant had been arrested in Kenya and then taken to Turkey. The Court held that a seven-day period of police custody did amount to a violation of Article 5(3) of the Convention.196 However, the Court considered the applicant’s arrival in Turkey to be the starting point for calculating the period.197 The ECtHR’s reasoning in Medvedyev and Ocalan show that difficulties on the ground, such as the material impossibility of bringing the arrested persons before a judge within a short period of time, can change and even limit the scope of states’ human rights obligations in respect of their extraterritorial operations or activities. However, in both cases, the Court, following the applicants’ arrival in the respondent States, assessed the cases against a normal legal background. The Court’s methodology in these cases does not provide much guidance for determining the scope of the Convention with respect to the personal basis of extraterritorial jurisdiction, especially that applied to cases of security detention undertaken in the context of UN-authorised missions. The nature of the security detention cases, such as the internment of Mr. Saramati and that of Mr. Al-Jedda, is quite different. The detainees were not taken to the homeland of the detaining power. Rather, they were held in the post-conflict territory itself, such as Kosovo or Iraq. Moreover, since there was no viable judicial system in those territories, the detainees would be subjected to different forms of procedure, at least in the earlier stages of those operations.198 Even if a judicial system was in place to some extent, the detainees could still be deprived of the right to have their detention reviewed in a 193  Ibid., para. 104. 194  Ibid., para. 130. 195  Ibid., paras. 131 and 132. 196  Ocalan v. Turkey (n. 102), para. 105. 197  Ibid., para. 104. 198  OSCE, Department of Human Rights and Rule of Law, Legal System Monitoring Section, ‘Review of the Criminal Justice in Kosovo: Independence of the Judiciary, Detention, Mental Health Issues’ (September 2001–February 2002) the Fourth Review; Suzannah Linton, ‘Rising from the Ashes: The Creation of A Viable Criminal Justice System in East Timor’ (2001) 25 Melbourne University Law Review 122; Bruce Oswald, ‘The INTERFET Detainee Management Unit in East Timor’ (2000) 3 Yearbook of International

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judicial context. According to the Fourth Geneva Convention (GCIV), detention for imperative reasons of security is different from that undertaken on the ground of alleged criminality.199 Hence, owing to the extremely difficult circumstances on the ground, human rights norms applicable in a domestic, peaceful environment do not, prima facie, seem well suited to such postconflict contexts. Assessing the scope of TCNs’ human rights obligations, which are, as explained above, already limited, requires a consideration of what human rights norms would mean in the course of operations carried out in those territories. This, in turn, necessitates devising a specific and appropriate methodology. In view of the fact that the Strasbourg Court is to receive more cases resulting from the UK’s operations in Iraq, developing such a methodology becomes particularly important. 7.2 A Brief Critique of the Methodology Offered by the ECtHR In fact, the ECtHR is not itself unaware of this necessity. This may be why the Court, in Al-Jedda,200 annulled the Bankovic dictum that Article 15 of the ECHR —permitting derogation from certain Convention rights—could not be invoked for extraterritorial activities.201 That is to say, the Court signalled that the difficulty inherent in the nature of these cases could be handled by relying on Article 15. The Court’s approach to the problem, however, calls for some analyses. First, the intention of the ECtHR ought to be evaluated. In Al-Jedda, did the Court recognise or at least open up the possibility of derogation for extraterritorial state activities by offering a methodology as to the application of the Convention in an extraterritorial context? As mentioned above, in Al-Jedda, the Grand Chamber in Strasbourg, after stating that the UK did not purport to derogate from its obligations under the Convention, applied Article 5(1) as it stands.202 If the Court is inclined to regard derogation as a useful tool in delineating the scope of states’ human rights obligations in a post-conflict situation, then it should be said that its possible application to extraterritorial Humanitarian Law 347–361; Michael Kelly, ‘INTERFET Detainee Management Unit in East Timor’ (2000), 3. 199  This type of detention is regulated under Article 43 and Article 78 of GCIV. 200  Al-Jedda v. the United Kingdom (n. 6), para. 100. 201  Bankovic (n. 35), para. 62. 202  Al-Jedda v. the United Kingdom (n. 6), paras. 100 and 110. For a relevant discussion on this topic see Marko Milanovic, ‘Extraterritorial Derogations from Human Rights Treaties in Armed Conflict’ (2014) at , last accessed on 7 May 2015.

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activities is not an entirely new concept. The Court has already subjected contracting parties to less stringent obligations, or tailored the Convention rights to the contextual circumstances, even if Article 15 of the ECHR has not been invoked.203 The Court has even done so in a domestic context. In Mangouras v. Spain, in which the applicant was detained on remand for eighty-three days, owing to the high amount of bail requested for his provisional release, the Court, having regard to the contextual particularities of the case, found no violation of Article 5(3) of the Convention.204 The ECtHR has, therefore, already shown a willingness to change the scope of Convention rights if it believes it necessary to do so. If Article 15 is to be used as a tool in appraising human rights standards in post-conflict environments, then the application of this provision must have regard to other relevant rules of international law—namely, international humanitarian law, with the law of occupation in particular being taken into account when determining the extent of the human rights obligations of TCNs operating in post-conflict territories under the auspices of the UN. However, unlike other international judicial bodies,205 the ECtHR has studiously abstained from applying the IHL.206 Even though the Court has held that the interpretation of the Convention may necessitate having regard to other rules

203  See, for instance, Medvedyev, where the Court did not fail to have regard to “the wholly exceptional circumstances”. Medvedyev and Others v. France (n. 110), para. 130. 204  Mangouras v. Spain (Application no. 12050/04) ECHR 28 September 2010, paras. 92 and 93. 205  The Inter-American Commission on Human Rights, Avilán v. Colombia (1998) Report No. 26/97, OEA/Ser.L./V/II.98, doc. 6rev; the Inter-American Commission on Human Rights Abella v. Argentina (1998), Report No. 55/97, OEA/Ser.L/V/II.98, doc.6 rev; the InterAmerican Commission Coard v. United States (1999) Report No. 109/99, OEA/Ser.L./V/ II.106 doc.6 rev, para. 42; the Inter-American Court of Human Rights Las Palmeras Case (4 February 2000), paras. 60 and 61; the Inter-American Court of Human Rights Bámaca Velásquez Case (25 November 2000), para. 321; Delalic, Case (Judgment) ICTY IT-96-2-T (16 November 1998); Prosecutor v. Furundzija (Judgment) ICTY IT-95-17, 1-T (10 December 1998); Human Rights Committee, ‘General Comment 29 on States of Emergency (Article 4)’ (2001) U.N. Doc. CCPR/C/21/Rev.1/Add.11, para. 9. 206   Christine Byron, ‘A Blurring of the Boundaries: The Application of International Humanitarian Law by Human Rights Bodies’ (2006–2007) 47 Virginia Journal of International Law 839, 851; Bill Bowring, ‘How Will the European Court of Human Rights Deal With the UK in Iraq? Extra-Territorial Jurisdiction, Tension between International Humanitarian Law and International Human Rights Law, and Lessons from Turkey and Russia’ in Phil Shiner and Andrew Williams (eds.), The Iraq War and International Law (Hart Publishing, 2008) 285, 311.

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of international law (since the Convention forms part of the international legal regime),207 it has resolutely avoided applying IHL.208 A recent example of how the ECtHR has dealt with IHL was provided by Al-Skeini. The Court assessed the UK’s responsibility for investigating the killing of the applicants’ relatives only under Article 2 of the ECHR, although, in its judgment, it noted that the UK was the occupying power in south-east Iraq.209 In view of this, it can be argued that, irrespective of whether or not Article 15 is invoked by states contributing troops to UN-authorised missions, the relevant norms of the law of occupation must play a determinant role in evaluating human rights standards in a post-conflict setting. However, saying that the law of occupation must also be taken into account raises another problematic issue: the relationship between this branch of IHL and international human rights law (IHRL). The concurrent application of IHL and IHRL is a complex matter. The issue is further complicated by the fact that the law of occupation cannot be formally applied to UN peace-keeping and authorised missions. And, if this is the case, how can the simultaneous application of these two areas of international law affect the scope of human rights obligations in cases of security detention undertaken in post-conflict territories? 8 Conclusion Determining the scope of human rights obligations in a post-conflict setting is an extremely complicated issue. As illustrated by the security detention practices undertaken during the UN-authorised missions, tailoring the applicability of human rights norms to such situations is not easy to do. This chapter mainly discussed how the extraterritorial human rights obligations of states providing troops to UN-authorised security missions ought to be assessed. It first sought to explain why the fact that the soldiers of the states in question are operating in an extraterritorial context should be taken into account, since the form of extraterritorial jurisdiction that a state may be exercising over a territory or an individual has a significant impact on determining the extent of that state’s human rights obligations. According to Al-Skeini, except in cases similar to Loizidou and Ilascu, a state is not obliged to provide all the ECHR 207  Al-Adsani v. the United Kingdom (Application no. 35763/97) ECHR 21 November 2001, para. 55. 208  Chris Byron (n. 206), 851. 209  Al-Skeini (n. 138), para. 168.

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rights to a person over whom it may be exercising effective control; thus, the state’s obligations vis-à-vis that person will be limited. The next problem is to identify the extent of states’ human rights obligations in extraterritorial situations, and this chapter therefore placed considerable emphasis on finding the best methodology for evaluating what human rights standards should apply in a post-conflict environment. In particular, it suggested that effective use be made of the law of occupation when interpreting human rights norms in such a context. However, the concurrent application of the law of occupation and IHRL is not an easy issue. It raises the difficult question on the complex relationship between IHL and IHRL, which will be discussed in depth in the following chapter.

CHAPTER 5

The Complex Relationship between International Humanitarian Law and International Human Rights Law and Its Implications for Security Detention Cases in UN-authorised Security Missions 1 Introduction The relationship between international humanitarian law (IHL) and international human rights law (IHRL) has been a complex and dynamic issue since the creation of a new human rights system in the aftermath of the Second World War. These two laws have distinct and common objectives. This, in turn, makes it difficult to identify the connection between these branches of international law. The affiliation between them has been dealt with by several judicial bodies. In its recent case-law, the International Court of Justice (ICJ) has plainly recognised the co-application of IHL and IHRL. However, the ICJ has failed to clarify the association between these two laws. In particular, the meaning of the lex specialis rule, which the ICJ proposed as the tool for solving the conflict between IHL and IHRL when they both regulate on the same subject matter, has not been clear. There has also been a growing and extensive academic literature discussing the link between IHL and IHRL. Unlike domestic legal systems, international law is not conducive to the application of the lex specialis maxim due to its fragmentary nature. Hence, the pertinent academic work has evolved around finding alternative models that could define the association between IHL and IHRL. This chapter examines the complex relationship between these two laws in light of such academic approaches, so as to explore the concurrent application of IHRL and IHL on occupation in the context of Chapter VII military missions authorised by the Security Council. 2

The Historical Background of the Relationship between IHL and IHRL

The emergence of the need to safeguard human rights under the newlycreated UN system in the wake of the Second World War led to a consideration

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of the relationship between IHRL and IHL. In earlier times, the two were treated as completely separate bodies of international law, independent of each other.1 The justification for this approach was that the objectives, scope of application, and substantive norms of IHRL and IHL were different and incompatible.2 While IHL is premised on governing the means and conduct of warfare,3 IHRL is the law of peacetime, applicable to all individuals falling under the jurisdiction of states party to a human rights treaty.4 Even the fact that IHL could extend protection to individuals who found themselves caught up in a conflict, in a manner akin to human rights law, did not change the underlying rationale behind this legal framework,5 which involves a clash between two competing needs that surface during an armed conflict: that of “humanity” and that of ‘necessity’.6 Such a strict approach to the matter, however, has been widely rejected, and the argument that IHRL and IHL should not be dissociated from each has gathered support over time. In 1968, the United Nations organised the International Conference on Human Rights in Teheran to evaluate the situation with regard to human rights two decades after the Universal Declaration of Human Rights had been adopted.7 During the conference, the impact of armed conflicts on the enjoyment of human rights was discussed for the first time, and this led the organisers to call upon the international community to effectively ensure the protection of human rights during armed conflicts.8 Hence, the Teheran conference became the starting point for a gradual rapprochement between IHRL and IHL. Since then, a further approach has emerged, arguing that these two parts of international law have similar objectives, and that 1  Nancie Prud’homme, ‘Lex Specialis: Oversimplifying a More Complex and Multifaceted Relationship?’ (2007) 40 Israel Law Review 35, 359. 2  G. I. A. D. Draper, ‘The Relationship between the Human Rights Regime and the Law of Armed Conflict’ (1971) 1 Israel Yearbook of Human Rights 191; D. Schindler, ‘The International Committee of Red Cross and Human Rights’ (1979) 3 International Review of Red Cross 208. 3  The means and conduct of warfare are detailed in the Geneva Conventions. 4  The Secretary-General, Report of the Secretary General on Respect for Human Rights in Armed Conflicts, 25 UN Doc. A/8052 (1970). 5  G. Draper, (n. 2). 6  Asborn Eide, ‘The Laws of War and Human Rights-Differences and Convergences’ in Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet, 681 (Christophe Swinarski, 1984). 7  International Conference on Human Rights, (22 April–13 May 1968), Proclamation of Teheran, Preamble, UN Doc. A/CONF.32/41. 8  Ibid., Human Rights in Armed Conflicts, 13th Resolution.

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therefore the gap between them needs to be bridged.9 In addition, the continued applicability of human rights law during armed conflicts and occupations has been especially affirmed in international jurisprudence. 3

Developments in the Jurisprudence of International Judicial Bodies

International judicial authorities have plainly recognised the applicability of human rights law to situations of armed conflict and occupation,10 and the position taken by the ICJ has led the way in discussions on the relationship between IHL and IHRL. In its first significant case dealing with the issue, the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the ICJ stated that: The Court observes that the protection of the International Covenant on Civil and Political Rights does not cease in times of war, except by operation of Article 4 of the Covenant whereby certain provisions may be derogated from in a time of national emergency. Respect for the right to life is not, however, such a provision. In principle, the right not arbitrarily to be deprived of one’s life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities. Thus whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the Covenant can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself.11

9  Nancie Prud’homme (n. 1), 362. 10  Isayeva, Yusupova and Bazayeva v. Russia (Application nos. 57947/00, 57948/00, 57949/00) ECHR 24 February 2005; Inter-American Court of Human Rights Juan Carlos Abella v. Argentina 13 April 1998, para. 158; Human Rights Committee, ‘General Comment 31 on the Nature of the General Legal Obligation Imposed on States Parties to the Covenant’ (2004) CCPR/C/21/Rev.1/Add. 13, para. 11. 11  Legality of the Use of Nuclear Weapons (Advisory Opinion, 8 July 1996) [1996] ICJ Rep 226, para. 25. (Hereinafter: Nuclear Weapons case).

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However, in the Nuclear Weapons case, the emphasis was particularly on the right to life, not the general relationship between IHL and IHRL. The ICJ dealt with the latter issue in the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory.12 It held that: More generally, the Court considers that the protection offered by human rights conventions does not cease in cases of armed conflict, save through the effect of provisions for derogation of the kind to be found in Article 4 of the International Covenant on Civil and Political Rights. As regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law. In order to answer the question put to it, the Court will have to take into consideration both these branches of international law, namely human rights law and, as lex specialis, international humanitarian law.13 The ICJ affirmed this position in the Case Concerning Armed Activities on the Territory of the Congo (The Republic of Congo).14 In this case, the ICJ simply reiterated its statement in the Wall case.15 Even though its stance in the three cases seems to have fortified the relationship between IHL and IHRL,16 it cannot be said that the ICJ provided a clear account of how to understand and accordingly strengthen the relationship between the two systems.17 In dealing with 12  Legal Consequences of the Construction of a Wall (Advisory Opinion) [2004] ICJ, para. 106. 13  Ibid. 14  Case Concerning Armed Activities on the Territory of the Congo (The Republic of Congo), 19 December 2005. (Hereinafter: the Congo case). 15  Ibid., para. 216. 16  Theodor Meron, ‘The Humanization of Humanitarian Law’ (2000) 94 American Journal of International Law 239, 240. 17  Nancie Prud’homme (n. 1), 377; Noelle Quenivet, The lCJ Advisory Opinion on the Legal Consequences of the Construction of the Wall in the Occupied Palestinian Territory: The Relationship between Human Rights and International Humanitarian Law, 2004, available at (last accessed on 7 May 2015); Yutaka Arai, ‘Confluence between International Humanitarian Law and International Human Rights Law—Eclectic but Effective’ (2010) 592 Kokusai-Mondai (International Affairs) 1, 4; Noam Lubell, ‘Parallel Application of International Humanitarian Law and International Human Rights Law: An Examination of the Debate’ (2007) 40 Israel Law Review 648, 656.

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the relationship between IHL and IHRL, the ICJ made three pronouncements: (i) human rights law can be applied to situations of armed conflict and occupation; (ii) human rights can be derogated from; and (iii) when IHL and IHRL are both applicable, the former is the lex specialis.18 However, applying the ICJ’s propositions in practice has not been easy.19 For instance, it is difficult to say that a clear consensus has been reached as to the exact meaning of the lex specialis rule in regard to the relationship between IHL and IHRL. This, in turn, has led the legal community to develop different approaches, which will be examined in the following section. 4

Positions Adopted in Legal Literature

This chapter does not intend to propose a comprehensive solution to the complex relationship between IHL and IHRL. It rather aims to undertake an examination of the academic debate concerning the interplay between these two branches of law in order to discover a proper methodology to evaluate the scope of human rights obligations in cases of security detention in the context of UN-authorised missions. The traditional separatist approach has constituted one of the major perspectives on the relationship between IHL and IHRL. According to this older school of thought, IHRL is the law of peace, whereas IHL is the law of war.20 However, since the ICJ has expressly recognised the continued applicability of IHRL in times of armed conflict, it is not possible to maintain this approach any longer. However, the argument that IHRL is not suitable for situation of armed conflict has been put forward in another form: the principle of lex specialis has been strictly interpreted in order to claim that IHL en bloc prevails over IHRL.21 As a proponent of this view, Dennis suggests that, in case 18  Francoise Hampson, ‘The Relationship between International Humanitarian Law and Human Rights Law from the Perspectives of a Human Rights Treaty Body’ (2008) 90 International Review of the Red Cross 549, 550. 19  Ibid., para. 571. 20  Robert Kolb, ‘Human Rights and Humanitarian Law’ (2010) in Max Planck Encyclopaedia of Public International Law 6; Noam Lubell (n. 17), 649; Keith Suter, ‘An Inquiry into the Meaning of the Phrase “Human Rights in Armed Conflict” ’ (1976) 15 Revue de Droit Pénal Militaire et de Droit de la Guerre 393, 399. 21  Michael Dennis, ‘Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation’ (2005) 99 American Journal of International Law 119, 139.

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of an overlap between IHL and IHRL, the rules of the former, as lex specialis, should always be given priority over those of IHRL regulating the same subject matter.22 His view has also drawn support from some states, such as the United States. For example, with respect to detainees in Guantanamo, the US has taken the position that its human rights obligations under the ICCPR apply only to individuals residing within its territory, and that as lex specialis IHL suspend the application of the ICCPR in times of armed conflict and military occupation.23 Such a strict reading of lex specialis, however, is not supported by other approaches in the legal literature and jurisprudence. It is now undisputed that IHL and IHRL can be co-applied, and that they are not mutually exclusive.24 Yet, the concurrent application of the two regimes remains quite problematic—mainly owing to the uncertain meaning of the lex specialis principle invoked by the ICJ in considering the relationship between IHL and IHRL. Lex specialis is a rule that is well suited to resolving “norm conflicts” that arise within a single treaty or between treaties that are part of the same system.25 National legal systems are more conducive to, and suitable for, the application of the lex specialis principle.26 These systems are centralised and unitary, and the creation and implementation of legal norms take place within a hierarchical structure and logic, making the lex specialis maxim a useful device for resolving norm conflicts.27 However, the same cannot be said of international law. Unlike municipal law, international law is decentralised and fragmented, with no central legislative authority or hierarchical relationships.28 Moreover, the connection between different parts of international law is not clear. Therefore, when a conflict arises between two norms under the broad framework of international law, it is quite difficult to ascertain which one is

22  Ibid., 141. 23  Ibid., 136. 24  Noam Lubell (n. 17), 648. 25  Anja Lindroos, ‘Addressing Norm Conflicts in a Fragmented Legal System: The Doctrines of Lex Specialis’ (2005) 74 Nordic Journal of International Law 27, 41. 26  Heike Krieger, ‘A conflict of Norms: The relationship between International Humanitarian Law and Human Rights Law in the ICRC Customary Law Study’ (2006) 11 Journal of Conflict and Security Law 265, 269. 27  Philip Sands, ‘Treaty, Custom, and the Cross-Fertilization of International Law’ (1998) 1 Yale Human Rights and Development Law Journal 85, 88. 28  Anja Lindroos (n. 25), 28.

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more general and which one more specific.29 That is to say, in the international legal order, the lex specialis rule does not necessarily and simply mean the lex specialis derogat lex generalis.30 The lex specialis maxim may have divergent meanings and roles when applied to the normative relationship between two different, self-contained regimes under international law.31 For example, apart from being a tool exclusively for solving norm conflicts, the lex specialis rule can also be used as an interpretative device. Martti Koskenniemi describes the nature of this principle as follows: There are two ways in which law takes account of the relationship of a particular rule to a general rule (often termed a principle or a standard). A particular rule may be considered an application of the general rule in a given circumstance. That is to say, it may give instructions on what a general rule requires in the case at hand. Alternatively, a particular rule may be conceived as an exception to the general rule. In this case, the particular derogates from the general rule. The maxim lex specialis derogat lex generali is usually dealt with as a conflict rule. However, it need not be limited to conflict.32 Hence, the lex specialis rule can also be understood as lex specialis complementa lex generalis. Its application to the relationship between IHL and IHRL, then, also means that IHL as the specific rule can be invoked when general rules of IHRL are interpreted.33 However, despite such a contextual and expansive understanding of the principle of lex specialis in the international legal order, it cannot be said that the meaning of this rule is totally clear. For instance, is IHL or IHRL the lex specialis when the latter provides a more specific and detailed rule for dealing with the matter at hand? The lex

29  Ibid., 42 and 44. 30  Centre Universitaire de Droit International Humanitaire, Expert Meeting on the Supervision of the Lawfulness of Detention during Armed Conflict, Geneva, 24–25 July 2004, 45. 31  Anja Lindroos (n. 25), 28; Heike Krieger (n. 26), 269. 32  Martti Koskenniemi, ‘Study on the Function and Scope of the Lex Specialis Rule and the Question of “Self Contained Regimes” ’, UN Doc. ILC(LVI) / SG/FIL/CRD.1 and Add.1 (2004), para. 2.1. 33  Cordula Droege, ‘Elective Affinities? Human Rights and Humanitarian Law’ (2008) 90 International Review of the Red Cross 501, 524.

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specialis rule lacks clarity on this matter.34 Thus, it is still doubtful whether the lex specialis maxim is the most appropriate tool to use in defining and settling the normative relationship between IHL and IHRL. In fact, it is for this reason that the non-separatist approaches in the legal literature have proposed some alternative models to the lex specialis rule,35 such as the theories of ‘harmonisation’,36 ‘cross-pollination’,37 ‘cross-fertilization’,38 or ‘a mixed model’.39 A similar stance has been taken by the HRC. When defining the relationship between IHL and IHRL, the Committee did not even cite the lex specialis maxim: The Covenant applies also in situations of armed conflict to which the rules of international humanitarian law are applicable. While, in respect of certain Covenant rights, more specific rules of international humanitarian law may be especially relevant for the purposes of the interpretation of Covenant rights, both spheres of law are complementary, not mutually exclusive.40 This clearly shows that IHL and IHRL apply in parallel and not to the exclusion of one another. There certainly exists a normative relationship between them; however, owing to the lack of clarity as to the meaning of the lex specialis rule, there have been several different explanations as to how exactly they interact. However, relevant practice seems to have been informed by the integrationist theory.41 The integrationist theory, in contrast to the complementary approach, which regards IHL and IHRL as having different roots, is based on the idea that these two disciplines fall under one rubric.42 Thus, it aims to push further the 34  Nancie Prud’homme (n. 1), 356; Gloria Gaggioli and Robert Kolb, ‘A Right to Life in Armed Conflicts? The Contribution of the European Court of Human Rights’ (2007) 37 Israel Yearbook on Human Rights 115; Cordula Droege, ibid., 523. 35  Cordula Droege, ibid. 36  Nancie Prud’homme (n. 1), 386. 37  Rene Provost, International Human Rights and Humanitarian Law (Cambridge: Cambridge University Press, 2005), 350. 38  Philip Sands (n. 27). 39  David Kretzmer, ‘Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of Defence’ (2005) 16 European journal of International Law 171, 185. 40  General Comment No. 31 (n. 10), para. 11. 41  Robert Kolb (n. 20), Max Planck Encyclopaedia of Public International Law, 6. 42  Ibid.

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coordination or merger between IHL and IHRL.43 Kolb argues that in practice, this has been done in three ways.44 First, coordination is sought by means of subsidiary application. According to this approach, IHL is confined to the realm of armed conflict, whereas IHRL is applicable at all times. So, in cases where IHL is not applicable, such as situations of riot or sporadic acts of violence, IHRL will be the governing law. However, this does not mean that IHRL should apply only once IHL is not applicable: they can be applied concurrently, but IHLR remains as a subsidiary body of international law when IHL is no longer relevant.45 The second means to achieve coordination or merger is by way of the renvoi technique. According to this approach, the interpretation of a matter under IHL can be informed by IHRL standards. For example, the concept of a fair trial under IHL can be construed and concretised in light of more specific IHRL rules. The reverse can also be true: IHL can be invoked to understand what IHRL standards are appropriate in a conflict or post-conflict environment. Such a methodology or interpretative cross-fertilisation between the two regimes can be particularly helpful in defining the scope of the right to life and liberty in a war context.46 The final method involves compiling a catalogue of minimum humanitarian standards that can be applied in any situation, whether in peacetime or during an armed conflict. This approach has been developed so as to deal with uncertainties surrounding the applicability of international law in situations that are intermediate between peace and war. Such group of rules will be a mix of IHL and IHRL rules.47 The Turku Declaration can be seen as an example of this approach.48

43  Ibid. 44  Ibid., 6–7. 45  Ibid., 6–7. 46  Ibid. A similar approach has also been suggested by Orna Ben-Naftali and Yuval Shany. O. Ben-Naftali and Y. Shany, “Living in Denial: The Application of Human Rights in the Occupied Territories”, (2003) 37 Israel Law Review 17, 104–106. 47  Robert Kolb (n. 7), Max Planck Encyclopaedia of Public International Law, 8–9. 48  Declaration of Minimum Humanitarian Standards, Reprinted in Report of the SubCommission on Prevention of Discrimination and Protection of Minorities on Its Fortysixth Session, Commission on Human Rights 51st Sess., Provisional Agenda Item 19, at 4, U.N. Doc. E/CN.4/1995/116 (1995) (Declaration of Turku).

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A Reflection on the Relationship between IHL and IHRL

Attempting to understand the intertwined nature of the relationship between IHL and IHRL is not easy, and therefore finding a coherent solution to the problem of how they are to function together in practice is a difficult task. However, the answer does not lie in trying to seek out the most suitable technique for avoiding a conflict between these two regimes.49 Both IHL and IHRL form part of international law, which by its nature is fragmentary. Hence, the affiliation between IHL and IHRL should be considered a matter of the systemic integration of international law.50 The problem is then to identify the most suitable means of achieving this integration. This must be done with great care, as both systems have common and distinct objectives. For instance, the principle of lex specialis does not necessarily have to be seen as the mere tool that can define the relationship between IHL and IHRL. Article 31(3)(c) of the Vienna Convention on the Law of Treaties may also be helpful here.51 In fact, the expansive and contextual reading of the lex specialis maxim undertaken above shows how this principle resembles the stipulation contained in Article 31, which states: There shall be taken into account together with the context . . . [a]ny relevant rules of international law applicable in the relationships between the parties. [Emphasis added.] As this provision suggests, the context and normative environment in which other relevant rules of international law may prove useful are important for treaty interpretation.52 Hence, the complicated interaction between IHL and IHRL needs to be contextualised and examined on a case-by-case basis. Efforts aimed at providing the greatest possible protection to individuals through a

49  Heike Krieger (n. 26), 280. 50  Anthony E. Cassimatis, ‘International Humanitarian Law, International Human Rights Law, and Fragmentation of International Law’ (2007) 56 International and Comparative Law Quarterly 623, 631. 51  Yutaka Arai (n. 17), 7. 52  Ibid.

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co-application of IHL and IHRL should not inadvertently end up watering down and undermining the specific protection offered by each regime.53 6

The Interplay between IHL and IHRL in the Context of UN-authorised Missions

6.1 Overview The interaction between IHL and IHRL is even more complicated in the context of security detention cases undertaken during UN-authorised missions. When the applicability of IHRL to situations of armed conflict and occupation is discussed, it is at least acknowledged that IHRL continues to apply in such circumstances. The difficult questions that then arise relate to how and under what circumstances an effective working relationship between IHL and IHRL can be established. In the context of UN-authorised operations, on the other hand, there is a preliminary issue that needs to be dealt with before exploring how IHL and IHRL can be implemented together: whether—and, if so, how—the law of occupation, as the most relevant part of IHL to the case at hand, can be applied. The circumstances in which peace-enforcement forces come to operate under Security Council authorisations differ in each case. This, in turn, may raise different legal questions. For instance, in Kosovo, KFOR was deployed after the adoption of Resolution 1244 and the consent given by the local government, whereas, in Iraq, MNF was already present in the country, with the later stages of its mission then authorised by the Security Council under Chapter VII of the UN Charter. These factual differences mean that two different, but interconnected, examinations need to be undertaken. In this regard it should be noted that, when assessing the relationship between the law of occupation and IHRL in the context of UN-authorised missions, this chapter confines its analysis to the situations of Kosovo and Iraq. The implications of the relationship between the two areas of law may be different in other cases.

53  Marko Milanovic, ‘A Norm Conflict Perspective on the Relationship between International Humanitarian Law and Human Rights Law’ (2010) 14 Journal of Conflict & Security Law 459, 462.

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6.2 KFOR and the Law of Occupation The main legal question arising out of the case of KFOR is whether the law of occupation can be formally applied to Chapter VII military operations. This is a complicated issue, and initially requires an examination of whether and to what extent KFOR could be viewed as an occupying power. The definition of an ‘occupied territory’ can be found in Article 42 of the Hague Regulations: ‘a territory is considered occupied when it is actually placed under the authority of the hostile army’. Benvenisti offers a broader description, defining a situation of occupation as the exercise of effective control of a foreign military force over a territory which ‘can never bring about by itself a valid transfer of sovereignty’.54 He argues that the law of occupation is founded on the principle that the sovereignty of the occupied territory or population is not alienable through ‘a unilateral action of a foreign power, whether through an actual or the threatened use of force’.55 Therefore, the law of occupation precludes the occupying power from annexing the occupied territory, and it incurs certain obligations on the occupant to respect the sovereign interests of displaced government and maintain public life and order in the occupied territory.56 Shraga adds the following to the definition of occupation: ‘the exercise of exclusive governmental or administrative authority in the territory independently of the displaced sovereign’, when testing its relevance in the context of peacekeeping operations.57 The situation in regard to KFOR meets some elements of these definitions. It clearly exercised effective control over some parts of Kosovo. If so, one can assert that KFOR was bound by this branch of IHL. However, the exercise of ‘effective control’ is not sufficient per se to arrive at such a conclusion. In the first place, it could be argued that consent becomes the determining factor for testing the formal applicability of the law of occupation to UN forces.58 To put it differently, as long as the host state consents to the deployment of foreign forces under the UN system, the formal application of the law

54  Eyal Benvenisti, The International Law of Occupation (Oxford University Press, 2012), 6. 55  Ibid. 56  Ibid. 57   Daphna Shraga, ‘The Applicability of International Humanitarian Law to Peace Operations, from Rejection to Acceptance’ (at the International Humanitarian Law Human Rights and Peace Operations organized by IIHL and ICRC, 2008), 91, 98. 58  Bruce Oswald, ‘The Law on Military Occupation: Answering the Challenges of Detention during Contemporary Operations?’ (2007) 8 Melbourne Journal of International Law 311, 318.

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of occupation is not possible. Many commentators confirm this argument.59 For instance, Greenwood argues that UN forces cannot be considered to be the occupying power if they act within the territory of a state on the basis of consent granted by that state.60 In the case of Kosovo, the governments of the Federal Republic of Yugoslavia and the Republic of Serbia agreed to the deployment of KFOR as the international security presence in Kosovo by signing the Military Technical Agreement in June 1999. Therefore, because of the existence of a clear consent on the part of the host governments, it might be said that the law of occupation would not be formally (de jure) applicable to KFOR. Nevertheless, the argument that consent becomes the key concept in assessing the de jure applicability of the law of occupation can be challenged in a number of ways. If it can be demonstrated that the consent given by the territorial sovereign was invalid, then the displacement of the law of occupation by an agreement between the UN and the host state will be brought into question.61 For example, Ferraro argues that any consent must be deemed invalid if it is extorted through the use of force, or a threat to use force, in accordance with Article 52 of the Vienna Convention on the Law of Treaties. Thus, examining the factual circumstances that led to the signing of the Military Technical Agreement, he concluded that the consent given by the FRY was doubtful.62 However, in spite of these objections, it should be noted that the 59  Adam Roberts, ‘What is Military Occupation?’ (1984) 55 British Yearbook of International Law 249, 291; S. Vite, ‘L’applicabilité du droit de l’occupation militaire aux operations des organisations internationales’, Collegium, Proceedings of the Bruges Colloquium, Current Challenges to the Law of Occupation, (20–21 October 2005), No. 34 (2006), Special Edition, 93, 96; Marco Sassoli, ‘Outline of de jure and de facto applicability of the Law of Occupation to United Nations-Mandated Forces, in Expert Meeting on Multinational Peace Operations: Applicability of International Humanitarian Law and International Human Rights Law to UN-Mandated Forces (2004) (ICRC Meeting Report), 33. 60  Christopher Greenwood, ‘International Humanitarian Law and United Nations Military Operations’ (1998) 1 Yearbook of International Humanitarian Law 17. 61  For a more detailed discussion of the issue of when consent by a host government becomes questionable, see M. Cottier, ‘Attacks on Humanitarian Assistance of Peacekeeping Missions’ in: O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article (1999) 187, 195; Chris Faris, ‘The Laws of Occupation and Human Rights: Which Framework Should Apply to United Nations Forces?’ (2005) 12 Australian International Law Journal 57. 62  Tristan Ferraro, ‘The Applicability of the Law of Occupation to Peace Forces’ (at the International Humanitarian Law Human Rights and Peace Operations organized by IIHL and ICRC, 2008), 139, available at (last accessed on 7 May 2015); see also Marten Zwanenburg, Accountability of Peace Support Operations (2005), 197. For a discussion on non-clarity of consent, see Christine Gray, ‘Host State Consent and UN Peacekeeping in Yugoslavia’ (1997) 7 Duke Journal of International and Comparative Law 241. 63  Carsten Stahn, The Law and Practice of International Territorial Administration: Versailles to Iraq and Beyond (Cambridge: Cambridge University Press, 2008), 433; Erika De Wet, ‘The Direct Administration of Territories by the United Nations and Its Member States in the Post Cold War Era: Legal Bases and Implications for National Law’ (2004) 8 Max Planck Yearbook of United Nations Law 291, 314. 64  Tobias H. Irmscher, ‘The Legal Framework for the Activities of the United Nations Interim Mission in Kosovo: The Charter, Human Rights, and the Law of Occupation’, (2001) 44 German Yearbook of International Law 353, 383. 65  Adam Roberts (n. 59), 291. 66  Yutaka Arai, The Law of Occupation: Continuity and Change of International Humanitarian Law, and Its Interaction with International Human Rights Law (Martinus Nijhoff Publishers, 2009), 595.

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trations.67 Secondly, in cases where there is a conflict of interest between the UN forces and the local population, a SC Resolution adopted under Chapter VII can establish enforcement actions without the consent of the territorial state.68 In the case of Kosovo, the Security Council passed Resolution 1244 under Chapter VII of the UN Charter, authorising the deployment of KFOR in Kosovo. In view of this, and notwithstanding the agreement signed between the governments of Serbia and the Former Yugoslavia and NATO, the law of occupation would not be applicable to KFOR. That is to say, the decisive criterion for ascertaining the applicability of the law of occupation to UN-authorised missions is the existence of an authorisation provided by the Security Council under Chapter VII of the Charter. 6.3 MNF and the Law of Occupation The legal question raised by the case of MNF is different from that which pertained to KFOR. Before its mission came under the auspices of the UN, MNF was already operating in Iraq as an occupying power. Thus, the central question that ought to be discussed is how and under what circumstances the occupying power status of MNF could come to an end. Article 6 of GCIV addresses the commencement and termination of occupation. With respect to the latter, Article 6(3) states that: In the case of occupied territory, the application of the present Convention shall cease one year after the general close of military operations; however, the Occupying Power shall be bound, for the duration of the occupation, to the extent that such Power exercises the functions of government in such territory, by the provisions of the following Articles of the present Convention: 1 to 12, 27, 29 to 34, 47, 49, 51, 52, 53, 59, 61 to 77, 143. 67  Michael H. Hoffman, ‘Peace-enforcement Actions and Humanitarian Law: Emerging Rules for “Interventional Armed Conflict” ’ (2000) 82 International Review of the Red Cross 193, 198. 68  G.J.F. van Hegelsom, ‘The Law of Armed Conflict and UN Peace-Keeping and PeaceEnforcing Operations’ (1993) 6 Hague Yearbook of International Law 45, 57; Marten Zwanenburg (n. 62), 191; Adam Roberts (n. 59), 290; Bertrand Levrat, ‘Le droit international humanitaire au Timor oriental: entre théorie et pratique’ (2001) 83 International Review of the Red Cross 841, 95–98; John Cerone, ‘Minding the Gap: Outlining KFOR Accountability in Post-Conflict Kosovo’ (2001) 12 European Journal of International Law 469, 483–485.

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It has, however, been argued that this one-year limitation rule has now been modified.69 Adam Roberts asserts that Article 47 of GCIV is more relevant to the assessment of how an occupation ends. This provision ensures that any agreement between the local authorities and occupying power, or the annexation of the occupied territory by the occupant, cannot deprive the protected person of the protection offered by the Convention. In other words, the occupation does not end simply because of a declaration that it has done so.70 A similar view is also reflected in the pertinent parts of the Additional Protocol I regulating the termination of occupation. API does not follow the one-year limitation rule envisaged in Article 6(3).71 It rather adopts a factual approach in relation to the termination of an occupation.72 According to Article 3(b) of API,73 ‘the general close of military operations’ does not on its own suffice to stop the application of the Geneva Conventions in the occupied territory. The Conventions continue to apply until the occupation fully ends. This means that, even after the lapse of one year following the end of military operations, the occupying power has continuing obligations in respect of the local population in the occupied territory.74 Hence, Article 3(b) of API abrogates Article 6(3) of GCIV.75 If this is so, then when does an occupation finally end? It has been suggested that the Geneva Conventions should apply as long as the foreign power exercises effective control over the occupied territory.76 Thus, there is now a growing tendency to adopt a broader concept of occupation, so as to provide greater protection to the individuals in the occupied territory.77 This approach can be 69  Adam Roberts, ‘Occupation, Military, Termination of’ (2009) in Max Planck Encyclopaedia of Public International Law, 3. 70  Ibid. 71  Ibid. 72  Yutaka Arai (n. 66) 17. 73  This provision reads as follows: “The application of the Conventions and of this Protocol shall cease, in the territory of Parties to the conflict, on the general close of military operations and, in the case of occupied territories, on the termination of the occupation, except, in either circumstance, for those persons whose final release, repatriation or re-establishment takes place thereafter. These persons shall continue to benefit from the relevant provisions of the Conventions and of this Protocol until their final release, repatriation or re-establishment.” 74  Ibid., 18. 75  Adam Roberts (n. 69), 3. 76  Yutaka Arai (n. 66) 17. 77  Adam Roberts (n. 69), 4.

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justified on the basis that the termination of an occupation is a slow process.78 The mere fact that armed forces withdraw from the territories concerned does not necessarily mean that the occupying power will no longer have any control over the local population. However, there may be some situations where the law of occupation will not be applicable despite the occupying power’s presence in, and control over, the occupied territory. There are three basic processes that can lead to the termination of an occupation: military withdrawal, a major resumption of fighting, and the continued presence of occupying forces with a change in their status.79 For reasons of brevity, only the last category will be examined, as it is the most relevant to the case of MNF. Under this third option, the local government and the occupying power may enter into a security agreement whereby the former can explicitly consent to the continued presence of the latter in the occupied territory. This in turn will result in an effective change in the status of the foreign forces. The key factor in determining the legal validity of such a security treaty is whether the local government possessed independent decision-making capacity when the treaty was concluded.80 In other words, the local government or authorities should not have been pressured by the occupying power to enter into the agreement. Otherwise, the law of occupation will be applicable by virtue of Article 3(b) of API, which is now recognised as part of customary international law.81 The situation of MNF in Iraq ought to be assessed against this background. The Security Council Resolution adopted on 16 October 2003 authorised the deployment of MNF in Iraq.82 After it began to operate, it was undisputed that the applicable law to the conduct of MNF would be the law of occupation. However, in June 2004, there were a number of developments that sparked a debate as to whether the MNF operations after June 2004 were subject to the law of occupation. First, the Security Council passed Resolution 1546 formally ending the occupying status of the foreign presence in Iraq.83 Second,

78  Ibid. 79  Ibid. 80  Ibid., 6. 81  Yutaka Arai (n. 66), 18; Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law (2005). 82  UNSC 1511 (16 October 2003) UN Doc S/RES/1511, para. 10. 83  Ibid., para. 2.

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the newly-appointed Iraqi Government expressly granted its consent to the continued presence of MNF in Iraq.84 Sassoli argues that the crucial point is whether the Iraqi government gave its consent freely.85 Wills asserts that the interim government was not independent from the occupying forces, and therefore its consent was ‘circumscribed’.86 This sceptical attitude to the extent to which the Iraqi government freely approved the continuing presence of foreign forces in the country can also be seen in relation to the role played by the Security Council on the matter. The UK and the US, two of the Council’s permanent members, were in a position to abuse the power of the Council for their own political ends when drafting Resolution 1546.87 Taking into account these arguments, as well as the fact that some parts of Iraq remained under the effective control of foreign forces, one may conclude that the law of occupation still formally bound MNF. However, this interpretation of events can be challenged on the following ground. While the arguments centring on the ability of the Iraqi government to freely consent to the continuing presence of MNF are quite convincing, it should be noted that the issue of consent is not actually relevant. The assessment should rather be made on the basis of the way in which the Security Council was involved in the matter. The Council passed Resolution 1546 under Chapter VII of the Charter. It should be accepted that, when acting under Chapter VII, the Security Council has sufficient legal capacity to annul, redefine or amend the application of the law of occupation, unless this would amount to a breach of a jus cogens norm of international law.88 Consequently, the law of occupation would be excluded from applying to MNF by virtue of Resolution 1546.

84  See the letter from the Iraqi Prime Minister Ayad Allawi, which is annexed to the resolution. 85  Marco Sassoli, ‘Legislation and Maintenance of Public Power Order and Civil Life by Occupying Powers’ (2005) 16 European Journal of International Law 661, 683. 86  Siobhan Will, ‘Occupation Law and Multi-national Operations: Problems and Perspectives’ (2006) 77 British Yearbook of International Law 256, 300–301. 87  Yutaka Arai (n. 66), 21. 88  Ibid., para. 22; Rudiger Wolfrum, ‘The Adequacy of International Humanitarian Law Rules on Belligerent Occupation: to What Extent May Security Council Resolution 1483 Be Considered a Model for Adjustment?’ in Michael Schmitt and Jelena Pejic (eds.) International Law and Armed Conflict: Exploring the Faultlines (Martinus Nijhoff Publishers, 2007), 508.

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6.4 Applying the Law of Occupation by Analogy As the above discussions demonstrate, while the consent granted by local governments for the deployment or continued presence of foreign forces in their territory seems important, the Security Council has the power to modify the application of (part of ) the law of occupation in relation to Chapter VII operations. In both cases, the pertinent resolutions passed under Chapter VII of the Charter rendered the law of occupation formally inapplicable. However, that is not to say that the law of occupation ought to be totally disregarded, since it can be of help when determining what human rights standards should apply in post-conflict settings where peace-support forces are operating. The law of occupation is the area of international law most suited to dealing with post-conflict environments.89 It includes many provisions regarding the treatment of the population of an occupied territory. It also governs the issue of security detention, which is not obviously covered by IHRL.90 Furthermore, the law of occupation envisages different degrees of obligation for the occupying power. Depending on the level of (effective) control exercised over the local population and the occupied territory, the occupying power must bear responsibility vis-à-vis the inhabitants of the territory. In Al-Skeini, the ECtHR recognised such an approach. As discussed in detail above, the Court established the jurisdictional link between the applicants’ relatives and the UK based on the fact that the latter exercised some degree of public power in south-east Iraq. The case of the sixth victim is particularly interesting. Even though Baha Mousa was killed while in a military prison, the Court declined to follow the classical approach of establishing the personal model of jurisdiction, as it did in Ocalan91 or Medvedyev.92 Rather, it focused on the level of control the UK exercised over the relevant part of Iraq. This has significant implications for cases of security detention where the detaining powers, such as KFOR in Kosovo and MNF in Iraq, not only controlled the premises where the internees were held, but also exercised some degree of control over the territory surrounding the premises in question. 89   Marten Zwanenburg, ‘Substantial Relevance of the Law of Occupation for Peace Operations’ 162 (at the International Humanitarian Law Human Rights and Peace Opera­ tions organized by IIHL and ICRC, 2008), 160; Marco Sassoli (n. 85), 691; Michael Kelly, ‘Restoring and Maintaining Order in Complex Peace Operations: The Search for a Legal Framework’ (1999), 216; Yutaka Arai, (n. 66) 604–605. 90  Marten Zwanenburg, ibid. 91  Ocalan v. Turkey (Application no. 46221/99) ECHR 12 May 2005, para. 91. 92  Medvedyev and Others v. France (Application no. 3394/03) ECHR 29 March 2010, para. 67.

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Consequently, the extent of the obligations owed by the detaining powers would be determined according to the level of control they exercised over that territory. In such situations, the law of occupation, recognising varying degrees of obligation depending on the level of (effective) control exercised over the occupied territory, provides very helpful guidance in evaluating the scope of the human rights obligations of TCNs whose forces have engaged in security detention practices under the aegis of the UN. The law of occupation, hence, can be used as a matter of policy.93 How does this then affect the relationship between IHRL and the law of occupation in the context of UN-authorised missions? If the law of occupation is not formally applicable to such operations, then discussing the application of the lex specialis maxim and its implications for the relationship between IHRL and the law of occupation is irrelevant, as this principle will be set aside.94 The law of occupation should be used to construe IHRL norms in a post-conflict environment. The most suitable method for making such an interpretation is, arguably, the renvoi approach discussed above, which is different from the lex specialis rule.95 At this point, it should also be observed that the analogous application of the law of occupation should not be linked with the question of whether or not measures of derogation have been invoked. Human rights judicial bodies may limit human rights standards in a post-conflict environment by means of an analogy with the law of occupation, even though the state parties may not have invoked the possibility of derogation under Article 4 of the ICCPR or Article 15 of the ECHR.96 Another issue relevant to the interaction between the law of occupation and IHRL in the context of security detention is whether it might be helpful to draw up a list of minimum human rights standards that can be applied to all post-conflict territories undergoing the transition from war to peace. As mentioned above, this approach has already been suggested.97 The ICRC has carried out a similar exercise in relation to IHL. The organisation undertook a Study on Customary IHL,98 which interprets IHL rules in the light of IHRL 93  Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (2004), 2. 94  Heike Krieger (n. 26), 273 and 274. 95  Robert Kolb, Max Planck Encyclopaedia of Public International Law, (n. 20) 7–8. 96  Françoise Hampson (n. 18), 564. 97  See the Turku Declaration (n. 48). 98  Jean-Marie Henckaerts and Louise Doswald-Beck (n. 81).

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norms, in order to compile a list of customary IHL rules that are to be applied at all times. It is questionable, however, whether such an approach—which automatically assumes that IHRL and IHL norms can be combined for the purpose of identifying a core corpus of human rights that are applicable to all transitional situations—is feasible, since the application of human rights is contextual.99 An alternative strategy is to consider how human rights standards might be informed by the law of occupation in each individual case. In the following chapters, the security detention practices that arose in the post-conflict territories of Kosovo, East Timor and Iraq are examined in order to see what lessons can be learned in relation to the application and assessment of international (human rights) norms in such a context. Since the end of the Cold War, the Security Council’s attitude to dealing with situations of conflict has changed, with it showing much greater willingness to become involved in conflict situations with the object of achieving peace and stability. For example, it authorised the deployment of security missions in the post-conflict territories of Kosovo and East Timor. However, it also found it necessary to establish transitional civil administrations in those territories. Thus, when these cases are examined, not only are the security detention practices of the military forces scrutinised, but also the behaviour of civil administrations, which mostly engaged in issues of security detention through the use of their legislative powers, will be analysed. 7 Conclusion Setting up the relationship between IHL and IHRL is not facile. It is now well recognised that the two laws cannot be dissociated from each other completely. There exists a certain relationship between these branches of international law. Human rights can be applied in times of armed conflict and occupation. However, due to their distinct objectives, IHL and IHRL are not fully compatible with each other. The case of security detention is a good illustration of this. IHRL allows detention of an individual for sole reasons of security only in a limited set of circumstances. On the other hand, since, unlike IHRL, it puts a great emphasis on military necessity, IHL gives the occupying power with a vast discretion to carry out internments. Hence, it is of marked importance to

99  Heike Krieger (n. 26), 285.

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undertake a much more specific and contextualised analyse of the conditions under which security detention can be carried out. At this point, it can be argued that the complex relationship between IHL and IHRL is not only about how to interpret the corresponding rules of these laws in a coherent way, so as to ensure their concurrent application. The issue rather ought to be considered how by setting up a proper interplay between IHL and IHRL individuals can be better protected. Therefore, certain regard must be had to the particular context in which IHL and IHRL are to be co-applied. For the purpose of clarifying the application of human rights law to security detainee cases in times of international territorial administrations requires taking into account the law of occupation, this book undertakes three case studies focusing on post-conflict administration of Kosovo, East Timor and Iraq, where it explores the relationship between IHLR and the law of occupation.

CHAPTER 6

Security Detention Practices during the International Territorial Administration of Kosovo 1 Introduction The detention of civilians for reasons of security by international actors charged with the transitional administration of post-conflict territories has been a very troubling issue in international law. The mandate of such international entities—mostly derived from the UN Security Council—includes the fostering and maintenance of stability, and security detention emerged as a common practice aimed at fulfilling this objective. However, the procedure has not been free from controversy. The main difficulty has been a lack of clarity and certainty in detention policies and practices, and determining the scope of human rights standards to be adopted in relation to security detentions has proven difficult. The previous chapter suggested that the relevant rules of the law of occupation, which are more suited to a post-conflict environment, ought to be used when construing human rights norms, including the right to liberty. However, establishing the appropriate relationship between the law of occupation and human rights law for this purpose should be dealt with on a case-by-case basis, in order to determine what can be learned from each situation. This chapter focuses mainly on security detention practices during the international territorial administration of Kosovo. Two types of international actor were deployed in Kosovo: a civil administration and a security presence. Examining the detention policy and practices of the former entity calls for an initial discussion of the concept of international territorial administration, and how international law can be applied to such bodies. The chapter then examines the security practices of both these international entities in relation to human rights law, which gave rise to similar problems from which lessons can be drawn for future post-conflict administration cases.

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The Background to the Kosovan Case

Kosovo serves as a typical illustration of how the pursuit of self-determination can so often morph into violent armed conflict.1 The seeds of the problem date back centuries. Kosovo was controlled by the Serbs during the Medieval period, before the Ottomans began to exercise sovereignty over the territory, beginning in 1389. However, after declaring their independence from Ottoman rule in the early years of the nineteenth century, the Serbs attempted to regain control of Kosovo. Their efforts to do so included using force against the Albanians, the other major ethnic group resident in Kosovo, with the aim of driving them out of the region. However, in spite of Serbian attacks, the Albanian population continued to increase, and this was to lead to further confrontations between the two groups. The 1974 Yugoslav Constitution granted Kosovo autonomy,2 giving Albanians, as the largest ethnic group in Kosovo, a degree of independence from the rest of Serbia. This was the state of affairs when Slobodan Milošević came to power 1989. The new leader paid particular attention to Kosovo,3 and vowed to defend ruthlessly the rights of the Serbian minority resident there. This, in turn, was to prompt serious inter-ethnic violence, resulting in the death and displacement of many Albanian Kosovars, with the fighting particularly intense during 1991–1992. This was also the period during which the Former Yugoslavia disintegrated. Since the Soviet Union itself was undergoing radical transformation at this time, it was the Western states, particularly the US and the European Union countries, which were increasingly drawn into attempts to solve the Yugoslav crisis. Violent armed conflicts were ongoing between the Serbs and the other republics of the former Yugoslavia, particularly Bosnia. Many of these republics eventually declared their independence, gaining recognition from the international community. Yet, this was not the case in respect of Kosovo.4 1  For a detailed discussion of self-determination issues in Kosovo, see sections 2 and 3 of the report produced by NATO on this matter, available at (last accessed on 7 May 2015). See also the report drawn up by Martti Ahtisaari at (last accessed on 7 May 2015). 2  See Article 5 of the 1974 Yugoslav Constitution. See also Paul Tsoundarou, ‘The Continued Relevance of Sovereignty in a Globalizing World: Yugoslavia and its Successor States’ (2002) 3 Alternatives, Turkish Journal of International Relations 72. 3  Elena A. Baylis, ‘Parallel Courts in Post-Conflict Kosovo’ (2007) 32 Yale Journal of International Law 1; S. T. Hosmer, The Conflict over Kosovo: Why Milosevic Decided to Settle When He Did (RAND, 2001 Santa Monica, CA)—in, particular, 8–12. 4  Marc Weller, ‘The International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia’ (1992) 86 American Journal of International Law 569.

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It was only in late 1990s, these Western states, and especially the US, began to change their attitude towards Kosovo, and started to threaten Milošević with the use of force against Serbia if the brutal attacks carried out by Serbian forces did not cease.5 When the violence continued, a NATO operation was launched against Serbia in March 1999, which was followed by the passing of UN Security Council Resolution 1244 in June of that year, authorising the deployment of KFOR and the creation of UNMIK, mainly to handle the violent situation in Kosovo.6 Pursuant to their mandates, KFOR and UNMIK exercised a certain degree of power and control over Kosovo. This resulted in them engaging in a number of activities, ranging from establishing and maintaining security to attempting to reform the public administration of the territory. However, soon after both these entities began to operate, their conduct was criticised for failing to comply with international law. In particular, both KFOR’s and UNMIK’s practice of detaining civilians, mainly for reasons of security, gave rise to controversy. Before these detention practices are considered in detail, it is first necessary to examine whether (and, if so, to what extent) international law applied to KFOR and UNMIK. Since the first four chapters of this book explored—mainly—the applicability of human rights law and the law of occupation to UN-authorised missions with reference to the specific case of KFOR, the discussion below will focus on UNMIK. In particular, a legal framework defining the nature of this entity, the legal basis for its creation, and the way in which international law places limits on its authority must be set out. 3

Transitional Territorial Administration in International Law

3.1 Overview The administration of territories by international actors is not a recent phenomenon. Although there have been earlier cases,7 the mandate and trusteeship systems provide the best examples of previous incarnations of

5  Christopher Greenwood, ‘Humanitarian Intervention in the Case of Kosovo’ (2002) 10 Finnish Yearbook of International Law 141, 146. 6  UN SC Res 1244 (10 June 1999) S/RES/1244 (1999). 7  The establishment of the independent Republic of Cracow at the Congress of Vienna represents one of the earliest instances of territorial administration. Chairani Fitria, ‘Review of Eric de Brabandere, Post-Conflict Administrations in International Law: International Territorial Administration, Transitional Authority and Foreign Occupation in Theory and Practice’ (2012) 2 Asian Journal of International Law 203, 203.

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international administration.8 Following the end of the First World War, the United Kingdom and France wished to annex the colonies of the defeated imperial powers, attracting the opposition of another victorious power, the United States. US president Woodrow Wilson stated that the nations in question had the right to self-determination.9 As a result, the League of Nations, created in the aftermath of the war, created the Mandates System, and announced that these nations would be subject to temporary foreign administrations acting on behalf of international community—until they were deemed capable of self-government.10 Territorial administration by foreign actors, however, is not limited to cases involving former colonies. The successor of the League of Nations, the United Nations, established the Trusteeship System to deal with the administration of territories after the end of the World War II. One major difference between the Mandates System and the Trusteeship system is that the latter allows the organisation (the United Nations) to directly administer territories. For instance, in 1947, the UN attempted to administer the City of Jerusalem through a governor acting on its behalf. However, such administration could not be set up owing to the outbreak of the 1948 war.11 However, despite its aborted attempt in the aftermath of the Second World War, the UN has become much more actively involved in directly administering war-torn territories in fulfilment of its remit to promote international peace and security since the end of the Cold War.12 This in turn has led, over the past couple of decades, to the emergence of new kinds of territorial administration. Hence, the administration of territories by foreign or international actors has

8  See Chapter XII of the UN Charter. 9  Nele Matz, ‘Civilization and the Mandate System under the League of Nations as Origin of Trusteeship’ (2005) 9 Max Planck Yearbook of United Nations Law 47, 52; C. Lloyds BrownJohn, ‘Self Determination and Separation’ (1997) Options Politiques. 10  See Article 22 of the Covenant of the League of Nations, and also James Crawford, ‘The Right of Self Determination in International Law: Its Development and Future’ in Philip Alston (eds.), People’s Rights (Oxford: Oxford University Press, 2005). 11  Carsten Stahn, ‘International Territorial Administration in the former Yugoslavia: Origins, Developments, and Challenges ahead’ (2001) Max Planck Institute for Comparative Public Law and International Law 107, 117–118. 12  Christian E. Ford and Ben A. Oppenheim, ‘Neotrusteeship or Mistrusteeship? The “Authority Creep” Dilemma in the United Nations Transitional Administration’ (2008) 41 Vanderbilt Journal of Transnational Law 55, 67; Simon Chesterman, ‘Imposed Constitutions, Imposed Constitutionalism, and Ownership’ (2005) 37 Connecticut Law Review 947, 950.

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taken a number of diverse forms over the years, giving rise to different interpretations of what is meant by the concept.13 Consequently, the literature on territorial administration contains more than one definition of the concept. Wilde views territorial administration by international actors as a policy tool, defining it as ‘a formally-constituted, locally-based management structure operating with respect to a particular territorial unit, whether a state, a sub-state unit or a non-state territorial entity’.14 Brabandere regards international administrations as a method aimed at achieving certain objectives, which may differ in each case.15 Stahn argues that international actors temporarily administer territories so as to provide them with assistance and supervision for communitarian purposes.16 Fox calls territorial administration ‘humanitarian occupation’, since, in his view, the nature of territorial administration has changed since the end of the Cold War, with more recent administrations, in contrast to earlier ones, being aimed at constructing a liberal and democratic order for the welfare of the inhabitants of the relevant territory.17 The different ways in which territorial administration has been defined make it particularly important to determine what is actually meant by the concept, although arriving at a single, agreed-upon definition would be difficult. One factor to take into account would be the purpose for which the entity in question has been created.18 And, as noted by Chesterman, liberal institutionalists and constructivists may well conceive of the administration of territories by international actors in different ways, which would in turn result in different definitions.19 Having said this, the intention here is not to discuss the reasons why international actors have administered territories or what impact this might have .

13  Lindsey Cameron and Rebecca Everly, ‘Conceptualizing the Administration of Territories by International Actors’ (2010) 21 European Journal of International Law 221, 227. 14  Ralph Wilde, International Territorial Administration: How Trusteeship and the Civilizing Mission Never Went Away (Oxford: Oxford University Press, 2008), 21, 36 and 37. 15  Eric de Brabandere, Post-Conflict Administrations in International Law: International Territorial Administration, Transitional Authority and Foreign Occupation in Theory and Practice (Martinus Nijhoff Publishers, 2009), 3. 16  Carsten Stahn, The Law and Practice of International Territorial Administration: Versailles to Iraq and Beyond (Cambridge: Cambridge University Press, 2008), 2–3. 17  Gregory H. Fox, Humanitarian Occupation (Cambridge: Cambridge University Press, 2008), 4. 18  Cameron and Everly (n. 13), 227. 19  Simon Chesterman, ‘Review Essay: International Territorial Administration and the Limits of Law’ (2010) 23 Leiden Journal of International Law 437, 444.

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on attempts to define the term. Rather, this chapter seeks to explore the legal framework that is relevant to cases of territorial administration, which has also been an important issue in the academic literature. In what ways does international law govern the conduct of these transitional administrators? In this respect, the legal basis on which a non-state territorial entity is placed under the administration of an international actor will affect the legal framework applicable to that administration. The Legal Basis for the Creation of International Territorial Administrations The legal grounds for the administration of territories by international actors are mostly to be found in the UN Charter system. The Charter envisages a number of modalities or legal bases for creating transitional administrations. However, the only instance of international administration explicitly referred to in the Charter is the trusteeship system established under Chapter XII. According to Article 77, the trusteeship system was applicable to territories that were (i) under mandate at the time, (ii) detached from enemy states as a result of the Second World War and (iii) placed under the trusteeship system by the state responsible for their administration. However, these three situations do not constitute the only grounds for the administration of territories under the Charter. The trusteeship system was designed to deal with only one particular situation: that of decolonisation.20 Article 76(a) states that one of the reasons for devising the trusteeship system was to strengthen international peace and security. This objective could also be used to justify the introduction of other forms of territorial administration, and, as noted above, there have been many examples of administrations that fall outside the colonial context. A further legal ground for the establishment of a territorial administration can be found in what are referred to as Chapter VI 1/2 measures. Entities that come under this heading do not actually fall within the ambit of Chapter VI. Under Chapter VI—in particular, under Article 36(1)—the Security Council can recommend that an international territorial administration be established. However, this power is just advisory, and it is therefore doubtful whether Chapter VI of the Charter can constitute a basis for the creation of such an administration.21 On the other hand, authorising an administering for3.2

20  Erika De Wet, ‘The Direct Administration of Territories by the United Nations and Its Member States in the Post Cold War Era: Legal Bases and Implications for National Law’ (2004) 8 Max Planck Yearbook of United Nations Law 291, 307. 21  Carsten Stahn (n. 16), 435; Steven Ratner, The New UN Peacekeeping: Building Peace in Lands of Conflict after Cold War (1995), 157.

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eign authority by adopting a Chapter VI 1/2 measure is a different situation. In this case, the Security Council may authorise the establishment of an interim administration for maintaining peace and security. However, such an action differs from those taken under Chapter VII, since the main parties involved in the case consent to the deployment of the international entity.22 The Security Council can also authorise the creation of a territorial administration under Chapter VII of the Charter, and in this situation the consent of the parties is not required. Administrations of this kind are therefore coercive in nature. The most relevant legal ground for establishing an international administration under Chapter VII is Article 41. Under this provision, the Security Council can decide what non-military measures should be taken in order to restore international peace and security,23 and it has been argued that this extends to providing the Security Council with ‘an implied power’ that can be used to authorise a transitional administration.24 Such a power has been affirmed in the Tadic case. The Appeal Chamber of the International Tribunal for the former Yugoslavia (ICTY) held that the Security Council could establish an ad hoc tribunal to deal with threats to international peace and security.25 From this it should follow that the Security Council has the power to establish a territorial administration in pursuit of the same goal.26 It should also be noted that, apart from its power to create a territorial administration under Article 41, the Security Council can deploy military contingents under Article 42 in order to support a civilian administration.27 Thus, an international territorial administration can be created on various legal grounds under the Charter. However, the legal basis upon which an administration is actually created affects the way in which international law 22  Erika De Wet (n. 20), 314. 23  Monica Lourdes and Serna Galvan, ‘Interpretation of Article 39 of the UN Charter (Threat to the Peace) by the Security Council. Is the Security Council a Legislator for the Entire Global Community?’ (2011) 11 Anuario Mexicano de Derecho Internacional 147, 152. 24  Erika De Wet (n. 20), 316. See also, Simon Chesterman, You, the people: The United Nations, Transitional Administration, and State-Building, (Oxford University Press, 2004); Carsten Stahn, “The United Nations Transitional Administrations in Kosovo and East Timor: A first analysis” (2001) 5 Max Planck Yearbook of United Nations Law 105, 139; Tobias H. Irmscher, ‘The Legal Framework for the Activities of the United Nations Interim Administration Mission in Kosovo: The Charter, Human Rights, and the Law of Occupation’, (2001) 44 German Yearbook of International Law 353, 353. 25  Prosecutor v. Dusco Tadic (Decision on the Defence Motion for Interlocutory Appeal and Jurisdiction) ICTY 94-1-T (2 October 1995), para. 27. 26  Erika De Wet (n. 20), 317. 27  Carsten Stahn (n. 16), 431.

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can be applied to that entity. Below, only the applicability of international law to the territories directly administered by the UN will be discussed, as UNMIK was established under Article 41, and its mission was supported by the deployment of KFOR under Article 42 of the Charter. The multinational administration of territories established under Chapter VII of the UN Charter will be dealt with in Chapter 8 of the book, which focuses on Iraq. 3.3 Applying International Law to the UN Administration of Territories 3.3.1 Overview The applicability of international law to international territorial administrations created as part of an enforcement action under Chapter VII of the UN Charter is a complex issue. The questions that immediately arise are what legal rules can be applied to such administrations, and in what ways can those rules limit the powers of these entities? The areas of international law relevant to Chapter VII administrations and their activities are derived from a number of sources. Administrations of this kind are established by Security Council resolutions, and these decisions form part of the applicable law. In addition, the local laws of the administered territory, human rights law and the law of occupation can all be said to be relevant. While the degree to which each corpus of law can be applied ought to be assessed on a case-by-case basis, the overall applicability of human rights law and the law of occupation merits a separate examination. 3.3.2

Human Rights Law and the Direct Administration of Territories by the UN A model for applying human rights law to international territorial administrations can be developed by taking into account the type of actor responsible for the administration. If a territory is administered by a foreign state, then the human rights obligations of that state could extend to the activities it carries out in that territory. In the case of direct administration of territories by the UN, however, the administering body is not a state, but the Security Council itself. Hence, the applicability of human rights law to administrations of this sort will depend on the extent to which it can bind the Security Council—or, to put it another way, on the degree to which it can limit the power of the Council. However, determining the constraints that can be placed on the authority of the Security Council by human rights law is intractable. Examining the ways in which the Security Council’s powers can be restricted through human rights law relies on two main methods: (i) interpreting the UN Charter itself; and (ii) relying on customary international law, having particu-

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lar regard to jus cogens norms.28 As regards the former, the Charter evidently requires the Security Council to respect human rights when carrying out its duties. Article 24(2) of the Charter stipulates, that in discharging its duties, “the Security Council shall act in accordance with the Purposes and Principles of the United Nations”. Article 1(3) and Article 55(c) of the Charter clearly include ‘respect for human rights and fundamental freedoms’ as an important aim of the UN.29 However, Article 1 of the Charter, setting forth the purposes of the United Nations, does not refer solely to ‘respect for human rights’. Chief among other objectives of the UN is the maintenance of international peace and security, which is emphasised in Article 1(1) of the Charter. It must therefore be asked to what extent human rights standards can constrain the Security Council when it undertakes enforcement actions for the purpose of restoring and maintaining international peace and security under Chapter VII of the Charter. It has been argued that, in such cases, the Council is able to derogate from human rights norms.30 Yet, as the Al-Jedda judgment of the European Court of Human Rights (ECtHR) reveals, how and under what circumstances such derogations can take place is a complex matter.31 The second way in which the power of the Security Council can be limited relates to customary international law. In the cases of Reparation for Injuries, Interpretation of the Agreement between the WHO and Egypt and Legality of 28  As noted by Cameron and Everly, Kiderlen adopts a similar methodology when discussing the legal framework that can be applied to UN territorial administrations. Cameron and Everly (n. 13), 21; Hans Fabian Kiderlen, Von Triest nach Osttimor. Der völkerrechtliche Rahmen für die Verwaltung von Krisengebieten durch die Vereinten Nationen (Berlin, Heidelberg, New York: Springer, 2008); Frederic Megret and Florian Hoffmann, ‘The UN as a Human Rights Violator?’ (2003) 25(2) Human Rights Quarterly 314, 315–316. 29  Thus, Article 1(3) states that one of the purposes of the UN is: “To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion”; while Article 55(c) of the UN Charter mentions: “ . . . universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion”. 30  See the lecture delivered by Michael Wood, ‘The UN Security Council and International Law’ (2006), 10. 31  Al-Jedda v. the United Kingdom (App No 27021/08) ECHR 7 July 2011, para. 102. See also Marten Zwanenburg, ‘Existentialism in Iraq: Security Council Resolution 1483 and the Law of Occupation’ (2004) 86 International Review of the Red Cross 745, 762.

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the Use of Nuclear Weapons, the International Court of Justice (ICJ) ruled that international organisations, by virtue of being subjects of international law, are bound by general rules of international law.32 Thus, it can be argued that the UN is bound by international human rights standards to the extent that such standards have crystallized into customary international law.33 However, it does not follow that the Security Council cannot derogate from this category of human rights norms. The only legal rules that cannot be qualified by a Chapter VII Security Council resolution are peremptory or jus cogens norms, and this view is now widely accepted.34 In the Genocide Convention case, judge ad hoc Lauterpacht held that: The concept of jus cogens operates as a concept superior to both customary international law and treaty. The relief which Article 103 of the Charter may give the Security Council in case of a conflict between one of its decisions and an operative treaty obligation cannot—as a simple hierarchy of norms—extend to a conflict between a Security Council resolution and jus cogens.35 The above discussion clearly demonstrates that human rights law can be applied to the Security Council, and must, therefore, apply a fortiori to the administrations created and directly run by the UN. However, uncertainty as to what extent the Security Council can derogate from human rights norms 32  Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion, 11 April 1949) [1949] ICJ Rep 4; Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt (Advisory Opinion, 20 December 1980) [1980] ICJ Rep 89; Legality of the Use of Nuclear Weapons (Advisory Opinion, 8 July 1996) [1996] ICJ Rep 226. Also see Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Jurisdiction) [1984] ICJ Rep 392, para. 107; Question of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. United Kingdom) (Provisional Measures) [1992] ICJ Rep 114, para. 42. 33  Megret and Hoffmann (n. 28), 315. 34  Michael Wood (n. 30), 12; Alexander Orakhelashvili, ‘The Impact of Peremptory Norms on the Interpretation and Application of United Nations Security Council Resolutions’, (2005) 16 European Journal of International Law 59, 63–67; Marco Sassoli, ‘Legislation and Maintenance of Public Order and Civil Life by Occupying Power’ (2005) 16 European Journal of International Law 661, 681; T.D. Gill, ‘Legal and Some Political Limitations on the Power of the UN Security Council to Exercise its Enforcement Powers under Chapter VII of the Charter’ (1995) 26 Netherland Yearbook of International Law 33, 89. 35  Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia) (Provisional Measures) [1993] ICJ Reports 325, 440.

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when performing an action in the name of protecting international peace and security is relevant also to similar activities carried out by UN administrations. 3.3.3

The Law of Occupation and the Direct Administration of Territories by the UN Examining the extent to which the law of occupation is applicable to UN territorial administrations raises two questions. First, does the Security Council have the power to derogate from the law of occupation? Second, if so, to what extent the Council can qualify the substantive norms of the law of occupation? The former question is closely intertwined with the discussion concerning whether this branch of international humanitarian law can be applied to Chapter VII military operations. This is dealt with in depth in Chapter 5. For a situation to be considered one of occupation, a territory must fall under the effective control of a foreign power without the consent of the displaced local government.36 With respect to UN territorial administrations, the local governments of post-conflict territories gave consent to the establishment of such transitional administrations. Hence, one may, prima facie, argue that the law of occupation cannot be applied formally to UN post-conflict administrations, as these administrations were not set up without the consent of the displaced local government. That said, the law of occupation is inapplicable de jure to UN territorial administrations, not because of the consent given by the local governments, but owing to their Chapter VII mandates.37 When acting under Chapter VII, the Security Council has the power to qualify or disapply the law of occupation, and has done so in relation to UN transitional administrations. Yet, the extent to which the Council is free to do this has been doubted in the relevant legal literature.38 The law of occupation requires the continuation of the status quo; it does not allow the occupying power to change the local laws and institutions in the occupied territory, unless there are exceptional circumstances.39 On the other hand, the purpose 36  For definition of “occupation”, see Article 42 of the Hague Regulations; Eyal Benvenisti, The International Law of Occupation (Princeton, NJ: Princeton University Press, 1993), 4; Daphna Shraga, ‘The Applicability of International Humanitarian Law to Peace Operations, from Rejection to Acceptance’ (at the International Humanitarian Law Human Rights and Peace Operations organized by IIHL and ICRC, 2008), 91, 98. 37  Bernhard Knoll, The Legal Status of Territories Subject to Administration by International Organisations (Cambridge: Cambridge University Press, 2008), 244–245. 38  Carsten Stahn (n. 16), 654. 39  Lindsey Cameron, ‘Does the Law of Occupation Preclude Transformational Developments by the Occupying Power?’ Proceedings of the Bruges Colloquium, Current Challenges to the Law of Occupation (20–21 October 2005), 60.

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of UN international administrations is to transform once volatile territories, and it is for this reason that the Security Council sets aside the law of occupation in relation to these entities.40 However, the relevant Security Council resolutions providing such mandates to transitional administrations were drafted in ambiguous terms, and the extent of the extraordinary powers given to them was not clear. Many of the administrations have been criticised for using the law-making powers vested in them in too broad a manner:41 some of the legislation enacted in relation to the economy, for example, has been directed at building a free-market environment along neo-liberalist lines42—something far removed from the transitional administration’s primary objective of implementing and maintaining national peace and security.43 Dealing with the second question—to what extent the Security Council can derogate from the law of occupation—requires a discussion of the concept of transformative occupation.44 This will be examined in the seventh chapter focusing on security detention practice in times of international territorial administration of Iraq. But for the purpose of clarity in this chapter, it can be argued that the law of occupation does not entirely prohibit the occupying power from effecting changes in the occupied territory.45 If maintenance of “l’ordre et la vie publics” in the occupied territory dictates it, the law of occupation—namely Article 43 of the Hague Regulations and Article 64 of the Fourth Geneva Convention46—empowers the occupying power to intro40  Cameron and Everly (n. 13). See also Erika De Wet, ‘Beginning and End of Occupation— UN Security Council’s Impact on the Law of Occupation’, Proceedings of the Bruges Colloquium, Current Challenges to the Law of Occupation (20–21 October 2005) 34, 37. 41  Carsten Stahn (n. 16), 654. 42  Ibid., 658. As an example of substantial changes made to the domestic economic laws of the administered territory by an international administration, see UNMIK Regulation 2001/03, dealing with the issue of foreign investment. 43  Carsten Stahn, ibid., 654. 44  Adam Roberts, ‘Transformative Military Occupation: Applying the Laws of War and Human Rights’ (2006) 100 American Journal of International Law 580, 581; Peter G. Danchin, ‘International Law, Human Rights and the Transformative Occupation of Iraq’ in Brett Bowden (ed.), The Role of International Law in Rebuilding Societies after Conflict: Great Expectations (Cambridge: Cambridge University Press, 2009); Nehal Bhuta, ‘The Antinomies of Transformative Occupation’ (2005) 16 European Journal of International Law 721. 45  Marco Sassoli (n. 34), 663. See also Lindsey Cameron, ‘Accountability of International Organisations Engaged in the Administration of Territory’ (2006). 46  Article 43 of GCIV reads as: “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

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duce new laws and institutions.47 In fact, this is actually an obligation imposed on the occupying power.48 The typical way in which public order is restored and maintained is through the regulation of policing activities, including the detention of individuals believed to pose a threat to the order and security of the occupied territory.49 This kind of legislative act, since it is aimed at preserving order and enhancing local laws and institutions in relation to security, is generally less controversial than legislation that seeks to refashion the economy of a post-conflict territory.

restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.”  Article 64 of GCIV reads as: “The penal laws of the occupied territory shall remain in force, with the exception that they may be repealed or suspended by the Occupying Power in cases where they constitute a threat to its security or an obstacle to the application of the present Convention.  Subject to the latter consideration and to the necessity for ensuring the effective administration of justice, the tribunals of the occupied territory shall continue to function in respect of all offences covered by the said laws.  The Occupying Power may, however, subject the population of the occupied territory to provisions which are essential to enable the Occupying Power to fulfil its obligations under the present Convention, to maintain the orderly government of the territory, and to ensure the security of the Occupying Power, of the members and property of the occupying forces or administration, and likewise of the establishments and lines of communication used by them.” 47  Yutaka Arai, The Law of Occupation: Continuity and Change of International Humanitarian Law, and Its Interaction with International Human Rights Law (Martinus Nijhoff Publishers, 2009), Chapter 4; Kenneth Watkin, “Maintaining Law and Order during Occupation: Breaking the Normative Chain” (2008) 41 Israel Law Review 175, 177; Marco Sassoli (n. 34), 673; Yoram Dinstein, “Legislation Under Article 43 of the Hague Regulations: Belligerent Occupation and Peace Building”, Program on Humanitarian Policy and Conflict Research, Harvard Univ., Occasional Paper Series, Fall 2004 [Dinstein (2004)a], Number 1, 5; Adam Robert, ibid., 604; Roberta Arnold, ‘The Applicability of the Law of Occupation to Peace Support Operations’ in Roberta Arnold & Geert-Jan Alexander Knoops (eds.) Practice and Policies of Modern Peace Support Operations under International Law (Transitional Publishers, 2006), 103. 48  Marco Sassoli, ibid., 676; Tobias H. Irmscher (n. 24), 388; Christopher Greenwood, ‘The Administration of Occupied Territory in International Law’ in Emma Playfair (eds.), International Law and the Administration of Occupied Territories (Oxford: Clarendon, 1992), 246. 49  Marco Sassoli, ibid., 664.

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UNMIK and the Detention of Civilians in Kosovo

4.1 Overview The above section described the general framework within which international law can be applied to the direct administration of territories by the UN, and it will be helpful to bear this in mind when examining the conduct of these administrations. However, the particular legislation that is applicable to each case, and the problems raised by this, require separate discussion. 4.2 International Law Applicable to UNMIK UNMIK Regulation 1999/24 set forth the law applicable in Kosovo during the period when it was subject to international administration. The main legislation that was applicable included the local laws in force on 22 March 1989 and the regulations enacted by the Special Representative of the SecretaryGeneral (SRSG).50 More importantly, the relevant legislation explicitly imposed on all persons undertaking public duties in Kosovo an obligation to respect human rights as embodied in major human rights treaties, including the European Convention on Human Rights (ECHR) and the International Covenant on Civil and Political Rights (ICCPR).51 Hence, UNMIK recognised the application of human rights norms to its mission in Kosovo. In fact, such an obligation had already been imposed by Resolution 1244—authorising the establishment of UNMIK—which charged international civil administrations operating in Kosovo with protecting and promoting human rights,52 thereby binding UNMIK itself to observing human rights norms.53 However, the degree to which UNMIK’s conduct conformed to human rights standards has been questioned, with its policies regarding the detention of civilians in Kosovo providing a good example of this. UNMIK was given the authority—including all necessary legislative, executive and judicial powers—to enable it to fulfil its responsibilities laid down in Resolution 1244.54 50  Regulation 1999/24, Section 1.1. 51  Regulation 1999/24, Section 1.3. 52  See para. 11(j) of Resolution 1244 (n. 6). 53  In fact, Wilde argues that UN international territorial administrations, including the one in Kosovo, were designed as an “international policy mechanism” to directly implement international human rights law. Ralph Wilde, ‘International Territorial Administration and Human Rights’ in N. D. White and D. Klaasen (eds.), The UN, Human Rights and Postconflict Situations (Manchester: Manchester University Press, 2005). See also Carsten Stahn (n. 11); Federico Sperotto, ‘The International Security Presence in Kosovo and the Protection of Human Rights’ (2008), 6. 54  Regulation 1999/1, Section 1.1.

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In light of this, UNMIK’s ability to detain individuals for reasons of security implicated a number of areas: for example, it could alter or revoke local criminal and criminal procedure laws deemed incompatible with international law and enact new ones, while its efforts to create a viable judicial system impacted on the fair treatment of detainees.55 The discussion here is confined only to the case of detentions imposed by the SRSG, as such extra-judicial or quasi-judicial curtailment of liberty is similar to detention for imperative reason of security, which is the central focus of this research. 4.3 Detention by the SRSG and Its Compatibility with Human Rights Law The exceptional powers entrusted to UNMIK were exercised by the SRSG, including the power to authorise the detainment of individuals. However, the extent to which such detention practices were compatible with human rights norms, particularly Article 5 of the ECHR and Article 9 of the ICCPR (both of which regulate the right to liberty) was questioned.56 First, the legal basis for the SRSG to detain individuals extra-judicially was questionable.57 According to Article 5 of the ECHR, certain conditions must be fulfilled in order to protect against the arbitrary detention of persons. The practice of detention based on executive orders by the SRSG was plainly not in accordance with this provision. For example, in the first paragraph of Article 5, the purposes for which an individual can be detained are exhaustively listed. Any form of detention not pursuant to these aims would be arbitrary. However, in the earlier stages of the mission, there was no official document setting out the grounds on which the executive power of detention could be used by the SRSG.58 In its Regulation 2001/18, UNMIK set forth some grounds in order to 55  For a relevant discussion, see Roger F.M. Lorenz, ‘The Rule of Law in Kosovo: Problems and Prospects’ (2000) 11 Criminal Law Forum 127, 132; Rexhep Murati, ‘Protection of Human Rights under Kosovo’s Criminal Code and Criminal Justice Code’ (2005) 80 Chicago-Kent Law Review 99, 100–114. 56  Organization for Security and Co-operation in Europe (OSCE), Department of Human Rights and Rule of Law, Legal System Monitoring Section, ‘Review of the Criminal Justice in Kosovo: Reforms and Residual Concerns’ (1999–2005). See the executive summary. (Hereinafter: OSCE Seventh Review). 57  OSCE, Department of Human Rights and Rule of Law, Legal System Monitoring Section, ‘Review of the Criminal Justice in Kosovo: Independence of the Judiciary, Detention, Mental Health Issues’ (September 2001–February 2002), 45. (Hereinafter: OSCE Fourth Review). 58  The OSCE was not aware of any official document describing the reasons for the SRSG’s use of executive authority of detention. It could only deduce, from the public statements of UNMIK and a letter sent to the UN Secretary General by the SRSG in 2001, that such

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justify such extra-judicial detentions by the SRSG,59 but these were not in accordance with Article 5(1) of the ECHR. In one case, for example, three persons were detained based on an allegation that they had been involved in bombing a bus full of Serbian Kosovans. These individuals were detained for more than one year based on an extrajudicial order by the SRSG to facilitate the collection of evidence by an “extraordinary commission” set up by the SRSG to deal with the case. However, at the end of this period, the evidence collected against the suspects was found insufficient to bring criminal charges.60 Furthermore, the domestic criminal code in force at the time did not authorise the SRSG to detain persons. Nor were the legal grounds for the SRSG’s use of the power of detention set out clearly in the code.61 Thus, there was no legal certainty: civilians could not ascertain in advance what activities were proscribed by law and would therefore lead to extra-judicial detention. The second issue that raised concerns with regard to the detentions based on the SRSG’s executive order was the enjoyment of the right to challenge the initial detention before a competent legal authority.62 The existence of this right constitutes a crucial safeguard against any form of arbitrary detention.63 The pertinent parts of both the ICCPR and the ECHR require judicial control over detentions based on executive orders.64 Although cases of detention power was likely to be used to prevent any threat to peace and security in Kosovo. OSCE, Department of Human Rights and Rule of Law, Legal System Monitoring Section, ‘Review of the Criminal Justice System in Kosovo: Legal Representation, Detention, Trafficking & Sexually Related Crimes, Municipal & Minor Offence Courts’ (October 2001), 33. (Hereinafter: OSCE Third Review). 59  Article 6(1) of the UNMIK Regulation 2001/18 reads as follows: “The Commission shall determine that an extra-judicial detention based on an executive order is justified where the Commission considers that there are reasonable grounds to suspect that a person has committed a criminal act, and a. His identity cannot be established or if other circumstances exist which suggest the strong possibility of flight; or b. There are reasonable grounds to suspect that he will destroy the traces of the criminal act or particular circumstances indicate that he will hinder the investigation by influencing witnesses, accomplices or persons who are concealing the criminal act or traces thereof; or c. Particular circumstances justify a fear that the criminal act will be repeated or an attempted criminal act will be completed or a threatened criminal act will be committed.” 60  OSCE Fourth Review (n. 57), 45. 61  In this respect, see Kawka v. Poland (App No 33885/96) ECHR 27 June 2002. 62  OSCE Fourth Review (n. 57). 63  D.A. Cámpora Schweizer v. Uruguay (12 October 1982) 86 Communication by the Human Rights Committee No. 66/1980, para. 18 (1). 64  See Article 5(3) of the ECHR and Article 9(4) of the ICCPR.

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imposed by the SRSG had started to come to light in 1999, a detention review commission (DRC) for such infringements of the right to liberty of persons was not established until 2001.65 Furthermore, this mechanism was clearly in violation of Article 5 of the ECHR and Article 9 of the ICCPR. The Ombudsperson for Kosovo66 argued that, in order for the standards recognised in these Articles to be met, the review mechanism must provide institutional and procedural guarantees.67 With regard to the institutional element, the review mechanism had to be conducted by a court independent of executive authority.68 This stipulation is also in accordance with the principle of separation of powers in a democratic society. However, since UNMIK was granted not only executive and legislative powers, but also judicial authority, this review commission was never truly independent. In fact, its members were directly appointed by the SRSG.69 Moreover, the ways in which the review commission operated were not judicial in character. The proceedings of this institution were not akin to those in an ordinary court: for example, detainees and their counsel were not provided with all relevant information, which was obviously not in accordance with the principle of equality of arms.70 This all demonstrates that detentions imposed by the executive order of the SRSG flagrantly violated the standards on the right to liberty enshrined in human rights law. The same holds true for detentions undertaken by KFOR.

65  This Commission was established by UNMIK Regulation 2001/18. In particular see Section 1. 66  This institution was created pursuant to Sections 1.1 and 4.1 of UNMIK Regulation 2000/38. 67  See Special Report No. 3 by the Ombudsperson, paras. 17–21. 68  Office of the High Commissioner for Human Rights, Basic Principles on the Independence of the Judiciary, adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from 26 August to 6 September 1985 and endorsed by General Assembly Resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985); see, in particular, Principle 1; Belilos v. Switzerland (App No. 10328/83) ECHR 29 April 1988. See also Gjylbehare Murati, ‘The independence of Judiciary and its Role in the Protection of Human Rights under UN Administration Using the Case of Kosovo’; David Marchal and Shelly Inglis, ‘The Disempowerment of Human Rights-based Justice in the United Nations Mission in Kosovo’ (2003) 16 Harvard Human Rights Journal 97. 69  OSCE Third Review (n. 58), 34. 70  Botten v. Norway (App No. 16206/90) ECHR 19 February 1996; Garcia Alva v. Germany (App No. 23541/94) ECHR 13 February 2001, para. 42; Schops v. Germany (App No. 25111/94) ECHR 13 February 2001, para. 48; Lietzow v. Germany (App No. 24479/94) ECHR 13 February 2001, para. 44.

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The Compatibility of Security Detention by KFOR with Human Rights Law

5.1 Overview During its mission in Kosovo, KFOR engaged widely in the practice of security detention, and an examination of its conduct reveals that, even though it ceased to detain persons after 2004, its earlier practices caused much disquiet regarding their compliance with human rights law.71 The nature of the violations committed by KFOR was quite similar to those committed by the SRSG. KFOR’s detention of civilians was not based on any clear legal basis, nor did it put in place an effective judicial review mechanism for such detainees. The Compatibility of KFOR’s Detention Practices with Human Rights Law KFOR acquired its power to detain civilians extra-judicially from Security Council Resolution 1244. This resolution authorised, inter alia, KFOR to restore and maintain security in Kosovo by ‘taking all necessary means’.72 Though not stated explicitly, KFOR inferred that the expression ‘all necessary means’ granted it the authority to undertake detentions. Deriving the basis for its use of detention powers from SC Resolution 1244, KFOR detained a large number of civilians for reasons of security, and held them at Camp Bondsteel, in eastern Kosovo.73 However, human rights law does not accept that detention can so easily be justified. Article 5 of the ECHR and Article 9 of the ICCPR prohibit any kind of detention based on extra-judicial orders.74 Furthermore, individuals detained by KFOR were deprived of any effective means of having their detention reviewed by a judicial authority.75 They were able to submit a petition to KFOR staff, but this obviously did not constitute an independent judicial review mechanism. Thus, KFOR’s security detention practices clearly violated 5.2

71  F. Naert, ‘Detention in Peace Operations: The Legal Framework and Main Categories of Detainees’ (2006), Institute for International Law, Working Paper No. 94. 72  UN Security Council Resolution 1244 (n. 6), para. 7. 73  This base was constructed by, and under the control of, the US KFOR. 74  For example, Article 5(1) of the ECHR contains an exhaustive list of grounds for the detention of individuals. In addition, Article 9(1) of the ICCPR prohibits the detention of individuals unless the grounds and procedures for doing so are established by law. 75  See OSCE Fourth Review, where it is argued that large numbers of detainees held in the Camp Bondsteel Detention Facility were not provided with a genuine opportunity of having their detentions reviewed by a judicial mechanism. OSCE Fourth Review (n. 57), 46.

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the relevant standards enshrined in human rights law.76 In view of this, it is useful to consider whether the adoption of Directive 42 by COMKFOR brought any changes to KFOR’s detention practices. 5.3 Promulgation of KFOR Directive 42 The scope of KFOR’s detention activities was first set out in a letter sent to the OSCE’s Head of Mission by COMKFOR on 6 September 2001.77 However, owing to the controversy that resulted from KFOR’s detention practices, COMKFOR needed to issue Directive 42 in order to clarify the policies and procedures relating to detentions imposed by KFOR. With regard to the legal basis upon which KFOR carried out its detentions, the newly-adopted Directive referred to UN Security Council Resolution 1244. This resolution enjoined the security presence in Kosovo (KFOR) to invoke ‘all necessary means’ to fulfil its responsibilities. Directive 42 interpreted the expression ‘the use of all necessary means’ as authorising KFOR’s power of detention. Moreover, Directive 42 entitled KFOR to detain persons in cases where civilian authorities failed to fulfil their obligations to establish and maintain a safe and secure environment.78 Pointing to this particular authorisation, KFOR frequently claimed that the civilian authorities in Kosovo were not capable of handling security-related matters themselves in order to justify its detention of larger numbers of civilians.79 Moreover, despite the creation of a system whereby international judges and prosecutors were assigned to deal with sensitive cases within the local judiciary, KFOR was reluctant to transfer such cases to the judiciary, arguing that military intelligence and information could not be given to any other actor, including the foreign judges and prosecutors.80 Moreover, KFOR argued that not only were the judicial authorities unable to assume responsibility for the detainees—especially those whose detention was imposed for reasons of security—but also that the legislative framework in existence at the time was inadequate.81 For example, KFOR pointed out that notable illegal activity was taking place, such as the trafficking of arms from 76  In particular, Article 5(4) of the ECHR and Article 9(4) of the ICCPR. 77  OSCE Third Review (n. 58), 37. 78  See KFOR Directive 42 (9 October 2001), Section 4(a). 79  For instance, this was evident in the letter sent by the SRSG dated 31 August 2001 to the OSCE Mission in Kosovo. 80  OSCE Fourth Review (n. 57), 48. 81  Ibid. This view was expressed by the legal advisory body of KFOR (KFOR LEGAD) during a round table discussion between this body and a representative of the OSCE.

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southern Serbia, and that it was obliged to detain large numbers of people involved in this. Even though UNMIK had passed regulations covering this issue,82 KFOR argued that deficiencies in the relevant legislation meant that the individuals would not have been dealt with appropriately, including in relation to sentencing. Another issue that COMKFOR intended to clarify by means of Directive 42 was the procedure for informing detainees of the grounds for their detention. However, although this requirement appeared to represent a step forward, KFOR’s practices in this regard remained in violation of Article 5 of the ECHR.83 According to Directive 42, once apprehended, detainees were to be given a special form setting out the grounds for their detention in accordance with Article 5(2) of the Convention. However, in practice, instead of informing detainees of the reasons why they were being held, the form simply stated that the detention had been imposed because the individual posed a threat to safety and security in Kosovo, without explaining in detail exactly why the individual was considered a threat.84 As well as providing the legal basis for security detention, Directive 42 also empowered COMKFOR and the KFOR regional commanders (MNB) to detain persons for long periods without recourse to judicial review. The MNBs were allowed to impose detentions on persons for up to 72 hours on their own authority without having to notify COMKFOR. Approval from COMKFOR was required after this initial 72-hour period had passed.85 COMKFOR was permitted to detain persons for up to 30 days, but also had the power to extend such detentions. The nature and gravity of these powers undoubtedly raised concerns about the protection of the detainees’ human rights.86 The OSCE, for instance, noted that the right to legal representation and the right to remain silent were not respected in regard to detainees, and, in particular, there was no judicial review mechanism in respect of these detentions. On the contrary, the review mechanism in place (the Detention Review Panel) was controlled by COMKFOR. Its members were appointed by COMKFOR, and it was chaired by the KFOR legal advisory body (KFOR LEGAD). Moreover, this

82  UNMIK Regulations 2001/10, 12, 7 and 22. 83  See Article 5(2) of the ECHR: “Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and the charge against him.” 84  OSCE, Fourth Review (n. 57), 50. 85  KFOR Directive 42, Section 5(b). 86  See Amnesty International, ‘Serbia and Montenegro (Kosovo): The Legacy of Past Human Rights Abuses’ (1 April 2004).

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Panel could only make recommendations:87 it did not have the power to order the release of persons detained by COMKFOR. Directive 42 also dealt with the treatment of detainees. Detainees could file petitions challenging their detention, but such petitions could be submitted only to COMKFOR, the body imposing those detentions, not to an independent judicial authority.88 Another problem was that KFOR was able to detain groups of civilians. For example, for reasons of security, KFOR forces detained 49 persons in a gymnasium that lacked the proper facilities for such detention, raising concerns both about the treatment of the detainees in question, as well as the practice of collective detention in Kosovo.89 The above discussion indicates that, although the adoption of Directive 42 appeared to be a positive step, it never actually altered the fact that KFOR was in grave violation of the relevant human rights norms. The types of violation committed by this entity mostly involved the widespread use of extra-judicial detention, together with a failure to provide any meaningful review process by which those detentions could be challenged. Indeed, after this Directive had been issued, these violations actually increased in number.90 6

Lessons Learned from Detention Practices in Kosovo

6.1 Overview One of the aims of this chapter is to draw some lessons regarding how to assess the relationship between human rights law and the law of occupation when trying to determine the legal standards that should apply to cases of security detention in a post-conflict environment. The above examination demonstrated how the application of international law to the transitional administration in Kosovo was quite constroversial, especially as regards the extent to which the detention policies and practices of the post-conflict entities operating in Kosovo were compatible with human rights law. Important lessons can be learned from why such actors were not able to fully comply with human rights norms.

87  KFOR Directive 42, Section 5(c). 88  Amnesty International, ‘FRY (Kosovo): Setting the Standards? UNMIK and KFOR’s Response to the Violence in Mitrovica’ (13 March 2000). 89  Ibid. 90  See the comments on KFOR Directive 42 of Amnesty International.

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Identifying the Most Suitable Approach for Dealing with Detention Issues in a Post-conflict Setting It has been noted that most of the human rights infringements that occurred as a result of UNMIK’s and KFOR’s detention practices centred on the lack of a clear legal basis for these detentions and also on the absence of any effective mechanism by which detainees could have the legality of their detentions reviewed. In fact, as the above discussion has indicated, virtually all the detention policies and practices of UNMIK and KFOR failed to comply with human rights law. What, then, are the implications of this? The conduct of UNMIK and KFOR was subjected to careful scrutiny by the human rights community, especially non-governmental organisations such as Amnesty International, which documented the failure of these entities to fulfil their human rights obligations. As a result, the legality of UNMIK’s and KFOR’s security practices was viewed through the lens of human rights norms. Is this the correct approach? Section 2(b) of KFOR Directive 42 describes the background against which this order was issued. It states that, at the time the international entities were deployed, ‘there was no legitimate criminal justice system, no law enforcement authority, and no judicial or penitentiary systems’ in Kosovo.91 In these circumstances, assessing the detention practices of UNMIK and KFOR in terms of the high standards provided for in human rights law does not seem feasible. Human rights law is designed mainly to be applied to the relationship between individuals and their governments. It applies in peace-time, whenas it is assumed that- there is no extra-ordinary situation in public order and life. Hence, human rights law envisages high standards to protect individuals against any abusive acts of their government. On the other hand, in a postconflict environment, the situation is quite different. There will be a serious break down in public life and order along with the absence of effectively functioning judicial and local authorities. Therefore, applying human rights norm to such a context as they stand does not seem reasonable. However, this is not to say that human rights should not be respected in such situations, and, as discussed above and in previous chapters, both UNMIK and KFOR were bound by human rights norms. Rather, what is needed is clarification as to what human rights standards can realistically be applied in a post-conflict setting. This, in turn, requires interpreting human rights norms in light of the associated rules of the law of occupation. A preliminary objection may be raised to making use of the law of occupation in order to determine appropriate human rights standards, on the 6.2

91  KFOR Directive 42, Section 2(b).

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ground that the latter permits security detention in only a very limited set of circumstances.92 Moreover, the relevant human rights norms regulating the right to liberty are not reconcilable with the rules of the law of occupation that deal with security detention issues: namely, Article 43 and Article 78 of the GCIV. According to Article 78(1) of GCIV, the occupying power can intern a person as long as is necessary for imperative reasons of security, with the internment taking place outside a judicial context. In contrast, the relevant human rights provisions mainly deal with curtailment of liberty on the basis of alleged criminal conduct. Article 9(1) of the ICCPR prohibits arbitrary arrest and detention, while Article 5(1) of the ECHR contains only six exceptional grounds upon which a person can be arrested or detained. Can the law of occupation, therefore, still inform the application of human rights law despite the substantial differences between these two bodies of law? This is a difficult problem, and no clear-cut solution can be provided. Reconciling Article 9(1) of the ICCPR with Article 78(1) is less problematic. One can say that security detention can be authorised as long as it is not arbitrary.93 However, the case of the ECHR is more complicated. Article 5(1) includes only six grounds for an arrest or detention, and none of them can be construed as permitting security detention.94 Nevertheless, a careful consideration of the purpose of Article 5(1) may suggest a way forward. As discussed above, the case of Medvedyev, which concerned the interception of a merchant ship on the high seas and the subsequent detention of its crew members by French authorities, is of special relevance here.95 As the legal basis for the detention of the applicants, France relied on the Montego Bay Convention.96 In dealing with the complaints under Article 5(1) of the Convention, the ECtHR laid down the following principles: The Court further reiterates that where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law but 92  Tyler Davidson and Kathleen Gibson, ‘Experts’ Meeting on Security Detention Report’ (2009) 40 Case Western Reserve Journal of International Law 323, 328. 93  Marko Milanovic, ‘A Norm Conflict Perspective on the Relationship between International Humanitarian Law and Human Rights Law’ (2009) 14 Journal of Conflict and Security Law 459, 475. 94  Ibid. 95  Medvedyev and Others v. France (App No. 3394/03) ECHR 29 March 2010. 96  Ibid., para. 84. The Montego Bay Convention refers to the United Nations Convention on the Law of Sea (UNCLOS).

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also, where appropriate, to other applicable legal standards, including those which have their source in international law. In all cases it establishes the obligation to conform to the substantive and procedural rules of the laws concerned, but it also requires that any deprivation of liberty be compatible with the purpose of Article 5, namely, to protect the individual from arbitrariness.97 The Court stresses that where deprivation of liberty is concerned it is particularly important that the general principle of legal certainty be satisfied. It is therefore essential that the conditions for deprivation of liberty under domestic and/or international law be clearly defined and that the law itself be foreseeable in its application, so that it meets the standard of “lawfulness” set by the Convention, a standard which requires that all law be sufficiently precise to avoid all risk of arbitrariness and to allow the citizen—if need be, with appropriate advice—to foresee, to a degree that is reasonable in the circumstances of the case, the consequences which a given action may entail.98 According to this reasoning, the legal basis for an arrest or detention can be found in both domestic and international law. However, such a ground, in the ECtHR’s view, should fulfil certain criteria, such as the principle of legal certainty, including the fact that the consequences of a particular action be foreseeable. In Medvedyev, the Strasbourg Court held that the provisions of international law relied on by France did not satisfy these requirements.99 Adopting the principles set out in Medvedyev, it can be argued that, if a rule is certain, foreseeable and clear, then it can constitute lawful grounds for the arrest or detention of an individual under Article 5(1). Al-Jedda v. the United Kingdom supports this view. In this case, the ECtHR acknowledged that it was possible for a Security Council resolution to provide the legal basis for the internment of a person. However, in dealing with the case, the Court concluded that it was not clear whether the resolution in question imposed an obligation of internment on the UK, and thus found the UK in violation of Article 5(1) of the Convention. In light of the foregoing analysis, it can be argued that the law of occupation, which is better suited to dealing with post-conflict situations—especially in respect of security detentions—can be used to bring clarity and certainty to the detention policies of international actors. This, in turn, should make such 97  Ibid., para. 79. 98  Ibid., para. 80. 99  Ibid., paras. 100–103.

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policies more compliant with the purposes of human rights norms regarding the right to liberty—namely, the avoidance of arbitrary detention. Thus, it is submitted that the lawfulness of the detention policies and practices of international entities operating in post-conflict territories ought to be assessed not on the basis of a strict human rights test, but on the basis of an interaction between the law of occupation and human rights law. When considered from this point of view, KFOR Directive 42 appears to have been in greater conformity with international law than might otherwise seem the case. 6.3 Re-examining KFOR Directive 42 The important role played by the law of occupation in informing the meaning and application of human rights norms in a post-conflict environment has been addressed by several authors.100 However, determining how these two branches of international law should interact in a post-conflict situation remains uncertain. In this respect, some aspects of KFOR Directive 42 can be used to evaluate how the associated and conflicting rules of the law of occupation and human rights law can be co-applied. A close reading of Directive 42 reveals that the drafters sought to provide for the application of the law of occupation and human rights law to the maximum possible extent, and the Directive includes several rules and principles that are enshrined in both branches of law. The security detention regime provided for in Directive 42 reflects the influence of the law of occupation. As is well known, Article 78(1) of GCIV grants the occupying power considerable latitude in relation to the detention of individuals for imperative reasons of security. However, this provision does not incorporate adequate safeguards against potential abuse of what amounts to a very broad power.101 For that reason, certain principles have been put forward to limit the discretion enjoyed by the detaining power, including the following: (i) the internment of a person should be exceptional and used as a last resort,102 (ii) the detained person should be released immediately if the 100  See, for example: Marten Zwanenburg, ‘Substantial Relevance of the Law of Occupation for Peace Operations’ 162 (at the International Humanitarian Law Human Rights and Peace Operations organized by IIHL and ICRC, 2008), 160; Marco Sassoli (n. 34), 691; Michael Kelly, ‘Restoring and Maintaining Order in Complex Peace Operations: The Search for a Legal Framework’ (1999), 216; Yutaka Arai, (n. 47), 604–605. 101   Jelena Pejic, ‘Procedural Principles and Safeguards for Internment/Administrative Detention in Armed Conflict and Other Situations of Violence’ (2005) 87 International Review of the Red Cross 375, 376. 102  See Jelena Pejic, ibid., 380; Al-Jedda v. the United Kingdom (n. 31), para. 107.

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security situation no longer requires that he or she be held;103 and (iii) internment cannot be imposed for gathering intelligence.104 These limitations are set out in Section 3(d), Section 3(f) and Section 4(b) of the Directive, respectively.105 Directive 42 also stipulated that the detaining forces were to make all efforts to comply with human rights law,106 referring to the principle enshrined in Article 5 of the ECHR and Article 9 of the ICCPR: no one shall be subjected to arbitrary detention.107 Moreover, as well as incorporating several important rules contained in Section IV of GCIV relating to the treatment of internees, the Directive also conferred on detainees a right of access to legal advice or representation, described in Article 6(3)(c) of the ECHR and in Article 14(3) (d) of the ICCPR.108 This does not mean, of course, that Directive 42 was essentially unproblematic—in particular, Section 6(c), concerning review mechanisms and procedures, proved to be especially troubling. Rather, the object of the above analysis was to show that Directive 42 did try to establish a working relationship between human rights norms and the law of occupation, which is a necessary endeavour if more clarity and certainty is to be brought to bear on detention policies and practices in post-conflict environments. 7 Conclusion This chapter discussed the detention of civilians in Kosovo by UNMIK and KFOR. In particular, it examined the detention policies and practices of each actor in order to discover what could be learned about the way in which human rights law and the law of occupation interact in a post-conflict context. It began by exploring the concept of international territorial administration. There have been different forms of territorial administration by foreign actors. In keeping with the object of this book, greater attention was paid to the appli103  ICTY, Prosecutor v. Delalic and Others, Judgment of Trial Chamber, 16 November 1998, para. 581. 104  Jelena Pejic (n. 101), 380; Yutaka Arai (n. 47), 491. 105  As regards the exceptional nature of internment, Dupont argues that KFOR’s detentions were of a temporary nature. Pascal M. Dupont, ‘Detention of Individuals during Peacekeeping Operations: Lessons Learned from Kosovo’ in Roberta Arnold and GeertJan Alexander Knoops (eds.) Practice and Policies of Modern Peace Support Operations under International Law (Transitional Publishers, 2006), 258. 106  Directive 42, Section 3(e). 107  Directive 42, Section 7(a). 108  Directive 42, Section 7(l).

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cability of international law to territorial administration directly run by the UN. Thus, the chapter discussed how human rights law and the law of occupation could be applied to, and used to limit the authority of, international administrations created and run by the UN. The chapter then considered to what extent the detention policies and practices of UNMIK and KFOR were compatible with human rights law. It pointed out that the violations perpetrated by these entities were mostly attributable to the lack of a clear legal basis for the detentions they imposed, as well as the absence of an effective judicial mechanism for challenging those detentions. The chapter then drew a number of conclusions from the similar outcomes of the UNMIK and KFOR cases. First, when assessing the scope of human rights obligations in a post-conflict context, attention should initially be focused on determining the legal basis of detention and the accompanying review mechanism. Second, when deciding on the level of protection that is to be afforded under the relevant human rights standards, certain human rights norms, such as the right liberty embodied in Article 5 of the ECHR and Article 9 of the ICCPR, should not necessarily be applied to their full extent. Instead, it is important to take into account the individual characteristics of the post-conflict setting in which this right is to be applied—in the case of Kosovo, for example, the extent to which the absence of a functioning domestic judicial system can or should affect an individual’s right to liberty ought to be explored. A close reading of both Article 5 of the ECHR and Article 9 of the ICCPR reveals that the purpose of both these provisions is to avoid arbitrary detention by stipulating clarity and certainty in detention procedures. In view of this, it was suggested that the associated rules and principles of the law of occupation could be used to inform the application of general human rights norms in the case of Kosovo, thereby making the detention policies and practices of international actors clearer and more certain. It further argued that KFOR Directive 42, despite its serious shortcomings—especially in relation to the mechanism for reviewing security detentions—can be viewed more positively, as a conscientious attempt to harmonise human rights law and the law of occupation to the greatest extent possible.

CHAPTER 7

Security Detention Practices during the International Territorial Administration of East Timor 1 Introduction East Timor has had a turbulent history, particularly since the beginning of the twentieth century. Colonised initially by Portugal, East Timor was eventually invaded by its neighbour, Indonesia, suffering serious violence and oppression, which peaked in 1999 with the killing of large numbers of East Timorese civilians by Indonesian forces. The UN, which had been involved in the affairs of East Timor for decades, took major steps to deal with these atrocities. Realising that its earlier efforts had failed to provide a solution, the UN decided to undertake a comprehensive mission to the country. This was not surprising, since the UN had already begun a very similar project in Kosovo (UNMIK)1 just a couple of months beforehand. Acting under Chapter VII of the UN Charter, the Security Council passed Resolution 1272.2 This resolution established a transitional administration in East Timor (UNTAET), endowed with all legislative, executive and judicial authority.3 In addition, and before taking this step, the Security Council decided to deploy a multinational security force (INTERFET) in East Timor, which was led by Australia and tasked with establishing peace and security in the country.4 In discharging their duties, both UNTAET and INTERFET undertook many activities in East Timor. During the initial stages of the mission, they detained several individuals for the purpose of maintaining security and restoring civil order. As these entities exercised power over these detainees, their conduct needs to be evaluated against the relevant rules of international law. Since the most relevant branches of international law to cases of security detention are international human rights law and the law of occupation, this 1  The United Nations Mission in Kosovo was initiated in 1999 by Security Council Resolution 1244. UNSC Res 1244 (10 June 1999) UN Doc S/RES/1244. 2  UNSC Res 1272 (25 October 1999) UN Doc S/RES/1272. 3  Ibid., para. 4. 4  UNSC Res 1264 (15 September 1999) UN Doc S/RES/1264, para. 3.

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chapter examines the detention activities of INTERFET and UNTAET through their lens. However, this discussion does not focus solely on whether the conduct of INTERFET and UNTAET conformed to the relevant standards envisaged by international human rights law and the law of occupation; it also explores in what ways, and to what extent, these actors actually made use of these areas of international law on the ground in constructing a legal framework applicable to security detainees. In the final section, the chapter attempts to draw some conclusions from the case of East Timor regarding the treatment of security detainees in a post-conflict environment. Firstly, however, it is useful to provide a historical overview of the violent conflict in East Timor that led to the establishment of the UN mission. 2

The Background to the East Timorese Case

Foreign sovereignty over East Timor dates back to the sixteenth century. In 1520, the country was colonised by Portugal, whose reign continued until 1860. Thereafter, the Dutch, Spanish and British attempted to exert control over the eastern part of the island. However, treaties signed in 1893 placed East Timor under Portuguese administration. Despite being occupied by Japan for a short period during the Second World War, East Timor remained under Portuguese rule until 1975, when Portugal signalled its intention to leave the country. This led to sharp disagreement among the East Timorese, and resulted in the eruption of civil war. The East Timorese people divided into a number of groups advocating different paths for the future of the country. One group favoured the continuation of Portuguese rule; another, the Frente Revolucionária de Timor-Leste Independente (FRETLIN), called for full independence, and declared unilateral independence in 1975; while the last group proposed full integration with Indonesia, which had already exerted control over the western part of the island.5 However, notwithstanding the various and conflicting aspirations of the East Timorese themselves, the fate of their country was once again to be decided by an outside power. The Republic of Indonesia invaded East Timor on 7 December 1975,6 and, the following year, declared the island the twenty-seventh province of Indonesia, and subject to Indonesian law. 5  Michael J. Kelly, Timothy L. H. McCormack, Paul Muggleton and Bruce M. Oswald, ‘Legal Aspects of Australia’s Involvement in the International Force for East Timor’ (2001) 841 International Review of the Red Cross 101, 141. 6  Suzannah Linton, ‘Rising from the Ashes: The Creation of A Viable Criminal Justice System in East Timor’ (2001) 25 Melbourne University Law Review 122, 126.

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Indonesia’s forced annexation of East Timor drew different responses from various international actors. Non-governmental organisations and the international media paid a great deal of attention to the issue. In its decision in the Timor Gap Treaty case, in which Portugal raised objections to Australia’s conclusion of a treaty with Indonesia to exploit the oil-rich continental shelf areas of East Timor,7 the majority of the International Court of Justice held that the Court lacked jurisdiction in the matter, since this would involve its ruling on whether Indonesia’s invasion of East Timor was unlawful—and this was not possible when Indonesia had not consented to the Court’s jurisdiction and was not a party to the dispute.8 Meanwhile, the international community, and particularly the US, UK and Australia, were reluctant to take any action against Indonesia, mainly because it was viewed as providing a bulwark against the spread of communism in the region.9 However, as will be explained below, the deteriorating state of affairs in Indonesia, coupled with the UN’s more robust attitude to dealing with violent conflict in the post-Cold War era, paved the way for East Timor’s independence. General Suharto became president of Indonesia in 1967, following a military coup. During his reign, Indonesia initiated a brutal campaign against communist sympathisers, and intervened militarily in Aceh, Irian Jaya and East Timor.10 As the years progressed, the Indonesian people began to criticise the Suharto administration for the financial crisis besetting their nation, and this culminated, in 1998, in public unrest and civil disorder.11 This led to President Suharto’s resignation, and his replacement by Vice-President Habibie.12 The new president attributed Indonesia’s economic woes to, amongst other matters, the huge cost of maintaining a military presence in Aceh, Irian Jaya and East Timor, and therefore opted to pursue a different policy in respect of these territories,13 which included a proposal to grant autonomy to East Timor. 7  Ibid., 127; Treaty between Australia and the Republic of Indonesia on the Zone of Cooperation in an Area between the Indonesian Province of East Timor and Northern Australia, 11 December 1989 (entered into force in 1991); Case Concerning East Timor (Portugal v Australia), Judgment of 30 June 1995, the International Court of Justice, paras. 36–37. 8  Suzannah Linton (n. 6), 126; Case Concerning East Timor (Portugal v. Australia) [1995] International Court of Justice Rep. 90. 9  Suzannah Linton, ibid. 10  Ibid. 11  Ibid. 12  Carmel Budiardjo, The Legacy of the Suharto Dictatorship’ in Paul Hainsworth and Stephen McCloskey (eds.), The East Timor Question (2000) 51. 13  Carmel Budiardjo, ibid., 65.

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Finally, the president announced that the people of East Timor would be given the choice between becoming an autonomous region within Indonesia or becoming fully independent.14 On 5 May 1999, the UN, Portugal and Indonesia concluded an agreement on the referendum process by which the East Timorese would decide their future.15 The agreement placed responsibility on Indonesia for maintaining peace and security in East Timor during the consultation period.16 In the meantime, as part of the process of organising and conducting the ballot, the UN Security Council passed Resolution 1246, which authorised the UN Mission to East Timor (UNAMET). The referendum took place on 30 August 1999. The vast majority of the East Timorese people (78.5%) voted for full independence from Indonesia. Immediately after the announcement of the result, Indonesian forces and militias carried out wide-scale violent attacks against civilians in East Timor.17 On 15 September 1999, deciding that the situation in East Timor represented a threat to international peace and security, the UN Security Council authorised the deployment of a multinational force (INTERFET) under the unified command of Australia.18 INTERFET was tasked with maintaining peace and security in East Timor, as well as supporting UNAMET in carrying out its mission.19 On 25 October 1999, the Indonesian Assembly confirmed the result of the referendum, thereby ending its control over East Timor. Since the establishment of East Timor as a genuinely independent state would take some time, the UN decided that it would administer the country temporarily on behalf of the local population. Therefore, on the same date that Indonesia confirmed the outcome of the referendum, the Security Council passed Resolution 1272, which authorised the creation of the UN Transitional Administration in East Timor (UNTAET),20 entrusted with carrying out all legislative, executive and judicial functions in the state. In East Timor, the UN civilian police, created under the aegis of UNTAET and INTERFET, carried out preventive detention on several occasions, and the 14   Haris Syamaun, ‘Indonesia Might Discuss Possible Independence for East Timor’ Associated Press Newswire (Jakarta, Indonesia, 27 January 1999). 15  Suzannah Linton, (n. 6), 128; Agreement between the Republic of Indonesia and the Portuguese Republic on the Question of East Timor, 5 May 1999, UN Doc. S/1999/513. 16  Article 3 of the Agreement between Indonesia and Portugal, ibid. 17  Report of the International Commission of Inquiry on East Timor to the Secretary-General, UN Doc A/54/726, S/2000/59 (2000). 18  Security Council Resolution 1264 (n. 4). 19  Ibid., para. 3. 20  Security Council Resolution 1272, (n. 2).

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following section discusses these practices in relation to international law. In contrast to the case of Kosovo, the UN actors in East Timor paid marked attention to the law of occupation, and therefore the application of this area of law to security detention issues in East Timor will be examined first. 3

The Security Detention Practices of INTERFET and the Law of Occupation

3.1 Overview The task of maintaining order and security before UNTAET was created was the responsibility of INTERFET. Under the Status of Forces Agreement signed with the government of Indonesia, INTERFET was allowed to arrest and detain persons if necessary, but it was also obliged to hand them over to the local authorities. However, this arrangement proved difficult to implement on the ground.21 After the early stages of its deployment, INTERFET began detaining people in East Timor: for example, it arrested eight East Timorese individuals, some of whom were believed to be members of a militia, carrying weapons in Dili, the capital city.22 However, owing to the collapse of public institutions in East Timor, especially judicial bodies, the Indonesian police were not able to deal with the persons transferred by INTERFET, and the local authorities quickly released the detainees. Frustrated by this, and after having consulted with UNAMET and the ICRC,23 INTERFET established the Detainee Management Unit (DMU) as a transitional legal mechanism to handle detainees pending the creation of a civil judicial system by either UNTAET or the East Timorese themselves.24 In setting up the DMU, INTERET drew heavily on the Fourth Geneva Convention, and this entity is therefore worthy of scrutiny for the purposes of the present discussion. The work of Australian military lawyers is helpful in this respect.25

21  Carsten Stahn, ‘The United Nations Transitional Administration in Kosovo and East Timor: A First Analysis’ (2001) 5 Max Planck Yearbook of United Nations Law 105, 169. 22  Bruce Oswald, ‘The INTERFET Detainee Management Unit in East Timor’ (2000) 3 Yearbook of International Humanitarian Law 347–361; Michael Kelly, ‘INTERFET Detainee Management Unit in East Timor’ (2000), 3. 23  Michael Kelly, ibid. 24  Carsten Stahn (n. 21), 169. 25  Michael Kelly et al., (n. 5); Bruce Oswald, (n. 22); Michael Kelly, (n. 22).

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3.2 The Detainee Management Unit The legal basis for the creation of the DMU is to be found in Security Council Resolution 1264. INTERFET’s mandate derived from this resolution and could be interpreted as permitting the establishment of an interim judicial mechanism.26 However, INTERFET was given no guidance on the way in which it should set up this mechanism. INTERFET therefore chose to rely on the framework of GCIV in creating the DMU. GCIV prescribes in detail how foreign military forces should treat the population of an occupied territory.27 In particular, it provides an elaborate set of rules for the internment of persons by the occupying power.28 Although it could not be applied de jure to the situation in East Timor,29 owing to the fact that the mission was initiated under Chapter VII of the UN Charter,30 GCIV nonetheless served as a useful guide for the DMU. In addition, the DMU applied Indonesian law, although this was controversial, since, according to GCIV, Indonesia, as the occupying power, was required to follow Portuguese law.31 However, during its occupation of East Timor, Indonesia had applied its own laws—and, over the course of more than a quarter of a century of occupation—this became the de facto legal regime in East Timor.32 For reasons of practicality, therefore, the DMU opted to apply Indonesian law, and this was afterwards endorsed by UNTAET, in so far as Indonesian law did not conflict with the provisions of international law.33 Furthermore, the overall framework in which the DMU operated was regulated by the Detainee Ordinance. The Ordinance was signed by the 26  Security Council Resolution 1264 (n. 4), para. 3. 27  Michael Kelly, ‘Responsibility for Public Security in Peace Operations’ in Helen Durham and Timothy L. H. McCormack (eds.), The Changing Face of Conflict and the Efficacy of International Humanitarian Law, (Kluwer Law International, 1999), 151. 28  See Article 78 of the Fourth Geneva Convention. 29  Michael H. Hoffman, ‘Peace-enforcement Actions and Humanitarian Law: Emerging Rules for ‘International Armed Conflict’’ (2000) 82 International Review of the Red Cross 193, 198. 30  Gert-Jan F. van Hegelsom, ‘The Law of Armed Conflict and UN Peace-Keeping and PeaceEnforcing Operations’ (1993) 6 Hague Yearbook of International Law 45, 57; Bertrand Levrat, ‘Le droit international humanitaire au Timor oriental: entre théorie et pratique’ (2001) 83 International Review of the Red Cross 841, 95–98; John Cerone, ‘Minding the Gap: Outlining KFOR Accountability in Post-Conflict Kosovo’ (2001) 12 European Journal of International Law 469, 483–485. 31  Article 64 of GC IV. 32  Michael Kelly (n. 22), 2. 33  UNTAET Regulation No. 1999/1 (27 November 1999), paras. 32, 53–56.

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COMINTERFET on the same date (21 October 1999) that the DMU was created. It immediately came into effect,34 and includes provisions relating to several issues concerning the detention of civilians in East Timor. For example, the Ordinance sets out the general structure of the DMU:35 it was to be composed of a reviewing authority, a prosecutor, a defending officer, two visiting officers and a police expert. Most of this team were legal officers from the Australian Defence Force; only one visiting officer was from the Philippines, and the police expert was a civilian employed to advise on the Indonesian Criminal Code.36 In order to ensure independence from the rest of the DMU, the reviewing authority was selected from the Australian Judge Advocates’ Panel.37 One important feature of the Detainee Ordinance was that it grouped detainees into one of four categories, and then set out different procedural rules for each category. The four types of detainee were: (i) a person detained on suspicion of the commission of a serious criminal offence; (ii) a person committed for trial in connection with the alleged commission of a serious offence; (iii) a person detained as a voluntary detainee; and (iv) a person detained as a security risk.38 The last category refers to detainees that were believed to pose a threat to the security of either the UN mission or peace and order in the occupied territory. In practice, it was also used to detain individuals accused of committing crimes before the deployment of INTERFET on 20 September 1999. Under Article 70 of GCIV, the occupying power cannot detain and punish persons alleged to have committed an offence prior to the establishment of belligerent occupation. Since this provision would have meant allowing a large number of those detained to go free, possibly disrupting INTERFET’s mission of maintaining peace and security in East Timor, INTERFET instead reclassified these individuals as security detainees, so that it could continue to hold them.39 Although the policies applied to each group of detainees overlapped in some respects, those relevant to security detainees had certain distinct features. Once a person had been detained by INTERFET, he or she had to be delivered within 24 hours to the Force Detention Centre (FDC), established by 34  Michael Kelly (n. 22), 5. 35  Ordinance Clauses 15–24. 36  Michael Kelly (n. 22), 2. 37  Ibid., 12. 38  Ibid., 5. 39  Ibid.

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COMINTERFET as a base to hold detainees. INTERFET had the power to detain individuals for up to 96 hours, in accordance with its military and security powers. At the end of this period, the detainee normally had to be: (i) released, owing to the absence of sufficient evidence, or because imperative reasons of security did not require otherwise; (ii) detained on suspicion of having committed an offence; or (iii) held as a security risk.40 INTERFET mostly detained individuals on the ground of alleged criminal conduct. The detention procedures applied to criminal detainees differed from those used for security detainees. The officer-in-charge of the Force Detention Centre (FDC) would inform the DMU prosecutor of the continuing detention. Within 24 hours of receiving this notification, the prosecutor was obliged to provide reasons to the reviewing authority of why the detention needed to be extended, including submitting any evidence against the detained person.41 At the same time, the prosecutor had to inform the detainee and the defending officer of the reasons why the detainee was being held.42 The defending officer would then submit written material to the reviewing authority on behalf of the detainee.43 Having received submissions from the prosecutor and the defending officer, the reviewing authority was then obliged to have regard to two criteria in deciding the fate of the detainee. First, in light of the written materials received, the reviewing authority would determine whether the suspect had been involved in the commission of a serious offence. Second, the reviewing authority would decide whether the investigation process warranted an extension to the period of detention, having particular regard to whether letting the suspect go free might lead to the destruction of evidence or to intimidation of the victim of the alleged crime and/or any witnesses.44 After applying this two-stage test, the reviewing authority normally arrived at one of two decisions: either the detention would be extended for a period of up to 90 days, or the conditional or unconditional release of the detainee would be ordered.45 In the first case, the suspect would continue to be held pending trial by a judicial body that was to be set up in East Timor under the auspices of the UN mission. If the second outcome applied, the released detainee might be subject to certain conditions, such as being obliged to report his or her movements to the UN Civilian Police 40  Ibid., 7. 41  Ibid. 42  Ordinance Clause 11. 43  Michael Kelly (n. 22), 7. 44  Ibid. 45  Ibid.

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(UNCIVPOL) at regular intervals. During the mission, the reviewing authority, which, as mentioned above, was selected from the Australian Judge Advocates’ Panel, ordered the conditional release of eleven detainees, and the unconditional release of twenty-one others.46 In the case of security detentions, however, INTERFET had exclusive control over the regulation and management of the process. The DMU agencies did not play any role in these detentions, owing to the military and security interests involved. INTERFET applied a ‘show cause’ procedure to the detainees. If INTERFET wished, after the expiry of the initial 96-hour period, to continue to hold a detainee, COMINTERFET or his delegate was required to issue a certificate showing that the risk posed by the detainee justified an extension to the period of detention. However, before doing so, and within 144 hours of the beginning of the detention, COMINTERFET was required to inform the detained person of the grounds that justified the issuance of the certificate. The detainee then had seven days to show reason why the certificate should not in fact be issued, although he or she could waive this right. The detainee had the right to seek assistance from the DMU defending officer during this process.47 An Appraisal of INTERFET’s Security Detention Practices under the Law of Occupation In cases involving internment or administrative detention,48 three issues in particular arise: (i) whether the detention has been undertaken on permissible legal grounds; (ii) whether the detainee has been provided with effective procedural safeguards; and (iii) whether the detainee’s treatment conforms to internationally recognised standards. The Australian legal team, whose country contributed the largest contingent to INTERFET, claimed that INTERFET’s policy of detention prior to a civil judicial authority being established in East Timor relied heavily on the framework of GCIV.49 This assertion is especially relevant to the third point mentioned above: the treatment of security detainees. 3.3

46  Ibid., 8; Ashley S. Deeks, ‘Administrative Detention in Armed Conflict’ (2009) 40 Case Western Reserve Journal of International Law 403, 419. 47  Ibid. 48  The terms “administrative detention”, “security detention” and “internment” are used interchangeably throughout this chapter to describe situations where an individual is detained for reasons of security. 49  Michael Kelly (n. 22), 9.

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3.3.1 Treatment of Detainees INTERFET held all four categories of detainee (as described above), in the Force Detention Centre in Dili. FDC’s activities were regulated by the ‘Orders for the Force Detention Centres’ (the Orders).50 The Orders were clearly modelled on the relevant provisions of GCIV—in particular, Article 76,51 which regulates the treatment of persons accused of an offence (criminal detainees), and Section IV, which deals in some detail with the treatment of persons interned for imperative reasons of security. There are parallels between both these parts of GCIV, since both confer similar obligations on the occupying power. Detained persons are said to have the right to: ‘enjoy conditions of food and hygiene which will be sufficient to keep them in good health . . . ’ (Article 76(1) to Article 85, and Article 89); receive proper medical attention (Article 76(2) to Article 91); receive spiritual assistance (Article 76(3) to Article 86); and receive visits from the International Committee of the Red Cross (Article 76(6) to Article 143). The Orders incorporated, inter alia, these provisions of GCIV in relation to the place and conditions of detention. Order 2 regulates visits by the ICRC, and Orders 23–26, 27 and 29 deal with medical care and providing a proper place for detainees to practise their religion. In addition, Order 17 regulates the standard of food that is to be given to detained persons. As well as seeking to provide for the well-being of all types of detainee, INTERFET made significant efforts to hold security detainees separate from other groups of detainees, such as those accused of having committed a criminal

50  Ibid. 51  Article 76 reads as follows: “Protected persons accused of offences shall be detained in the occupied country, and if convicted they shall serve their sentences therein. They shall, if possible, be separated from other detainees and shall enjoy conditions of food and hygiene which will be sufficient to keep them in good health, and which will be at least equal to those obtaining in prisons in the occupied country.  They shall receive the medical attention required by their state of health.  They shall also have the right to receive any spiritual assistance which they may require.  Women shall be confined in separate quarters and shall be under the direct supervision of women.  Proper regard shall be paid to the special treatment due to minors.  Protected persons who are detained shall have the right to be visited by delegates of the Protecting Power and of the International Committee of the Red Cross, in accordance with the provisions of Article 143.  Such persons shall have the right to receive at least one relief parcel monthly.”

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offence.52 This clearly conforms to Article 84 of GCIV, which stipulates that internees are to be accommodated separately from prisoners of war and from persons deprived of their liberty for any other reason. The above discussion shows that INTERFET’s practices in relation to the treatment of detainees in East Timor complied with the relevant provisions of GCIV. However, the legal grounds on which INTERFET imposed these detentions, and the mechanisms it put in place to review their lawfulness, did not conform to the appropriate GCIV standards. 3.3.2 Permissible Legal Grounds for Detentions As mentioned above, INTERFET subjected security detainees to a ‘show cause’ procedure. Under this policy, detained persons were asked to show cause why their detention should not be extended.53 In other words, the detainees were expected to demonstrate that the grounds for their detention were not compelling, thereby persuading COMINTERFET to order their release. However, such a procedure is not in accordance with one of the general principles governing internment or administrative detention of individuals in an occupied territory. The major provision dealing with security detention in occupied territory is Article 78(1) of GCIV, which reads as: 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. As it is clear, this provision grants the occupying power a vast discretion to detain a person for reasons of security.54 However, since the detention of protected persons who have not been accused of a specific offence amounts to one of the severest forms of control that can be exercised by an occupying power,55 there is a danger that the frequent use of such a broad power might lead to arbitrary detention. Therefore, the occupier must be careful in determining 52  Michael Kelly (n. 22), 9. 53  Michael Kelly (n. 22), 8. 54  Commentary on Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, 368. 55   Jelena Pejic, ‘Procedural Principles and Safeguards for Internment/Administrative Detention in Armed Conflict and Other Situations of Violence’ (2005) 87 International Review of the Red Cross 375, 380; Yutaka Arai, The Law of Occupation: Continuity and Change of International Humanitarian Law, and Its Interaction with International Human Rights Law (Martinus Nijhoff Publishers, 2009), 491.

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what grounds can justify this type of detention.56 In the Delalic case, the Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) held that ‘the fundamental consideration must be that no civilian should be kept in an assigned residence or in an internment camp for a longer time than the security of the detaining party absolutely demands’.57 The exceptional nature of this type of internment also places the burden of justification onto the detaining power.58 In the Abu Bakr Case, the Israeli Supreme Court affirmed that the onus of showing why internment/administrative detention is necessary rests with the military government.59 The Appeals Chamber of the ICTY, in the Delalic Case, stated that the detaining power is burdened with showing why ‘the particular civilian does pose a risk to its security’.60 In view of these pronouncements, the ‘show cause’ procedure applied by INTERFET vis-à-vis security detainees in East Timor is highly problematic. Moreover, this policy raises some additional questions as to the procedural safeguards available to protected persons in an occupied territory. For example, does demanding from an internee/administrative detainee the reasons why he or she should not be held contravene the presumption of innocence? According to Article 75(4)(d) of Additional Protocol I (API), the protected persons accused of having been involved in an offence (criminal detainees)61 shall enjoy the presumption of innocence until proven guilty.62 The accused persons must not be prejudged by the officials in charge of carrying out the various stages of the trial.63 However, this right is not explicitly conferred on security detainees in occupied territory or in the territory of the detaining 56  Yutaka Arai, ibid. 57  ICTY, Prosecutor v. Delalic and Others, Judgment of Trial Chamber, 16 November 1998, para. 581. 58  Yutaka Arai (n. 55), 491. 59  HCJ 466/86, Abu Bakr v. Judge of the Military Court in Shechem, 40 (3), paras. 649, 650 and 651. 60  ICTY, Prosecutor v. Delalic and Others, Judgment of Appeals Chamber, 20 February 2001, IT-96-21-A, paras. 328–329. 61  Article 75 (4) (d) reads as: “anyone charged with an offence is presumed innocent until proved guilty according to law.” 62  See also Article 14(2) of the International Covenant on Civil and Political Rights (ICCPR) regarding the presumption of innocence for persons arrested or detained on the ground of alleged criminality. 63  Human Right Committee, ‘General Comment 13 on Administration of Justice (Article 14)’ (1984), para. 7; Gridin v. Russia, No. 770/1997, U.N. Doc. CCPR/C/69/D/770/1997 (2000), View of 20 July 2000, para. 8.3; and ECtHR, Allenet de Ribemont v. France, Judgment of 10 February 1995, A 308, para. 41.

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power. Neither Article 43 nor Article 78 of GCIV mentions it. Article 75(4) of API mainly refers to the presumption of innocence in relation to protected persons who are alleged to have committed a crime in occupied territory. In view of this, two points can be made about the presumption of innocence in relation to security detainees. First, INTERFET was already bound by human rights law, since it was undoubtedly the case that the ICCPR could be applied to states contributing troops to INTERFET. The application of the ICCPR to INTERFET raises two legal issues which are widely dealt with in the second and third chapters. First, it can be argued that when acting under the Chapter VII Security Council mandate, the impugned conducts of INTERFET were to be attributed to their own government, not to the Security Council (see the second and third chapters). Second, persons detained by INTERFET could be said to have fallen under the extraterritorial jurisdiction of states whose forces may have exercised effective control over those persons as a part of their mission under INTERFET (see the fourth chapter). In any case, these two arguments are clearly confirmed by the Human Rights Committee, General Comment No. 31.64 Furthermore, it is now well-recognised that the presumption of innocence set out in Article 75(4) forms part of customary international law, and as such it binding on troop contributing states of INTERFET.65 Although it is possible to derogate from this right under international human rights treaties, its general inalienability has been affirmed by human rights supervisory bodies, including the UN Human Rights Committee.66 Consequently, it can be argued that the pre-

64  Human Rights Committee, ‘General Comment No. 31’, CCPR/C/21/Rev.1/Add. 13, para. 10, which reads as follows: “States Parties are required by article 2, paragraph 1, to respect and to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction. . . . This principle also applies to those within the power or effective control of the forces of a State Party acting outside its territory, regardless of the circumstances in which such power or effective control was obtained, such as forces constituting a national contingent of a State Party assigned to an international peace-keeping or peace-enforcement operation.” 65  Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law (2005), Vol. I, 357–358; Salvatore Zappalà, “The Rights of the Accused”, in Antonio Cassese, Paola Gaeta and John R. W. D. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary, (2002), Ch. 31.3., 1319, 1341; See also ICC Statute, Article 66; ICTY Statute, Article 21(3); ICTR Statute, Article 20(3); and Statute of the Special Court for Sierra Leone, Article 17(3). 66  Human Rights Committee, General Comment No. 29, ICCPR/C/21/Rev/1/add.11, paras. 11 and 16.

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sumption of innocence applied to security detainees by virtue of customary international law. Second, the ‘show cause’ procedure adopted by INTERFET arguably contravened the rationale underlying the presumption of innocence. This right aims to protect the accused person by placing the burden of proof on the prosecutor.67 The interning of an individual in occupied territory obviously constitutes a more severe measure than charging him or her with alleged criminal conduct. Hence, the presumption of innocence is even more important in relation to security detainees, and INTERFET’s policy of requiring detained persons to rebut the grounds on which they were held had the effect of seriously undermining the principle that a person is innocent until proven guilty. 3.3.3 Review Mechanisms Aside from the problems surrounding its ‘show cause’ procedure, INTERFET’s security detention practices in East Timor also raised concerns when compared with the procedural safeguards enshrined in the law of occupation. Article 78(2) of GCIV enjoins, inter alia, the occupying power to provide internees/administrative detainees with the right to challenge their internment, as well as the right, if they continue to be held, to have the legality of their detention periodically reviewed.68 With regard to the latter requirement, Article 78 regulates two aspects of this: (i) the timing of such reviews (i.e. the intervals at which they should take place); and (ii) the nature of the review mechanism that is entrusted with deciding whether the detention should continue or whether the detainee should be released. INTERFET’s review measures did not, on the whole, adhere to the requisite standards in respect of either the initial review procedure or the subsequent reviews that were carried out. Although Article 78(2) GCIV does not provide any details as to how the review mechanism should operate,69 it can be argued that the body carrying out the initial review should differ from the one that ordered the detention in the first place.70 It should also have the power to 67  General Comment No. 13 (n. 63), para. 7. 68  This provision reads as: “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.” 69  Yutaka Arai (n. 55), 496. 70  Jelena Pejic, (n. 55), 386.

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order the release of a detained person71 if the circumstances that resulted in his or her detention no longer exist. Furthermore, the review mechanism must be either ‘an administrative board or a judicial mechanism’,72 thereby fulfilling the requirements of independence and impartiality.73 In East Timor, authority to undertake the initial and periodic reviews was entrusted to COMINTERFET, the body that actually authorised the detentions. As the DMU was not involved with the detention of individuals for reasons of security, the DMU Reviewing Authority, selected from the Australian Judge Advocates’ Panel, could not, as it did with those detained for alleged criminal conduct, review the cases of security detainees or order their release. Hence, INTERFET’s process for allowing those detained for reasons of security to challenge their detention can be viewed as defective. 3.4 Lessons Learned from INTERFET’s Security Detention Practices The fact that some of its security detention practices failed to reach the benchmarks set down in the law of occupation should not detract from INTERFET’s overall success. It should not be forgotten that INTERFET was operating in a post-conflict environment in which many institutions, including an effective judiciary, had ceased to function. In other words, INTERFET was considerably constrained in its actions by the harsh reality on the ground. In such a situation, INTERFET adopted the correct approach by setting up temporary bodies, such as the DMU, which operated in a quasi-judicial manner, and by applying ad hoc policies. Its conduct in relation to the treatment of detainees was praiseworthy.74 What could, perhaps, be considered most important about INTERFET, however, was the fact that it drew heavily on the framework 71  ICTY, The Prosecutor v. Delalic, Mucic, Delic and Landzo (the Celebici Camp case), Judgment of Appeals Chamber, 20 February 2001, IT-96-21-A, paras. 328–329. 72  Jelena Pejic, (n. 55), 387; Jean-Marie Henckaerts and Louise Doswald-Beck (n. 65), 368–369. 73  Jelena Pejic, ibid., 388. 74  This was the conclusion reached by the UN General Assembly: ‘As far as the question of treatment of detainees is concerned, the conduct of INTERFET has been exemplary. The delegation met with detainees in conditions in which it could be confident that the detainees would have no fear of speaking frankly of any complaints as to their treatment. There were none. ICRC, which has full access, confirmed that it too had received no complaints from any of the detainees. The tone was set by the Force Commander, who, especially in the beginning, established the pattern by personally visiting the detention area. The establishment of the detention-management team also acts as a safeguard against abuse’. A/54/660, 10 Dec 1999, UN General Assembly, “Situation of Human rights in East Timor”, Fifty-forth session, Agenda item 116(c), para. 64.

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of GCIV, demonstrating the significant role played by the law of occupation during East Timor’s transition to independence. In this regard, INTERFET’s reliance on Section IV of GCIV in relation to the treatment of detainees was particularly significant. The temporary bodies set up by INTERFET also provided the basis for a judicial system to be established afterwards by UNTAET and local actors. The absence of judicial and domestic mechanisms in post-conflict territories poses a great challenge to UN interim administrations, which are then forced to construct a judicial system from scratch.75 INTERFET was keen to pass on its knowledge and experience to UNTAET and East Timorese officials. The structure of the DMU, including the DMU prosecutor and reviewing authority, served as models for their counterparts in the new judicial system. Furthermore, drawing on the framework of GCIV, INTERFET handed over criminal and security detainees to East Timorese judicial bodies,76 and completely ended its interim mechanisms and ad hoc policies, with the exception of the Ordinance, which was to be retained as an interim measure pending the establishment of more formal judicial processes by UNTAET or local actors.77 The transfer of security detainees’ files to the civil judiciary was especially significant, since this would undoubtedly increase the legitimacy of the mission in the eyes of the local population and international community. However, the fact that the relationship between the UN entities deployed in East Timor and the local population was less hostile than the one in Kosovo was a critical factor in INTERFET’s success. The total number of detainees handed over to the civil judiciary was 26,78 which is considerably small when compared with the large number of detentions carried out by KFOR in Kosovo. This type of difference in relation to the security environment in various postconflict territories, as well as the extent to which judicial and other domestic institutions are still functioning, can have a significant effect on the ability of foreign forces to comply with the relevant standards of international law.

75   Simon Chesterman, ‘Rough Justice: Establishing the Rule of Law in Post-Conflict Territories’ (2005) 20 Ohio State Journal on Dispute Resolution 69, 84. 76  Article 77 of GCIV regulates the handing over of detainees at the end of occupation and reads as follows: “Protected persons who have been accused of offences, or convicted by the courts in occupied territory, shall be handed over at the close of occupation, with the relevant records, to the authorities of the liberated territory.” 77  Michael Kelly, (n. 22), 10; COMINTERFET Order, (10 January 2000). 78  Michael Kelly, ibid.; Simon Chesterman, ‘Justice under International Administration: Kosovo, East Timor and Afghanistan’ (2002 International Peace Academy, 7.

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In spite of its achievements, INTERFET’s practices and policies with regard to the legal basis of the detentions it undertook, and the nature of the review mechanism it operated, were clearly controversial. The ‘show cause’ procedure complied with neither the relevant standards in the law of occupation nor with those in human rights law, and the review process by which detainees could challenge their detentions was neither effective nor truly independent. 4

UNTAET’s Security Detention Practices and Human Rights Law

4.1 Overview Creating a stable security environment was an important objective in East Timor. INTERFET managed to stabilise the situation soon after its deployment, but some security threats remained during the transitional period. This was highlighted by the UN Secretary-General on several occasions. In one of his Reports on the United Nations Transitional Administration in East Timor, the Secretary-General indicated a number of problems that could result in a significant deterioration in the internal security of the country.79 The presence of militia along the border between East Timor and Indonesia was a major source of concern. UNTAET and the Indonesian armed forces agreed on the Tactical Coordination Line (TCL) as the informal boundary prior to a formal demarcation being agreed. Some members of the militia were seen in the vicinity of the TCL, and they were also believed to control illegal markets in the border area, used by East Timorese traders to escape tax payments. The hard-line militia also made use of these markets for other criminal activity and also for political purposes.80 The situation was further aggravated by the return of refugees from West Timor. As a result of the atrocities that were committed in 1999, a large number of East Timorese fled to West Timor. Once the international entities had assumed control of East Timor and had established some measure of order and security, the process of bringing the refugees back to their homeland was initiated. But a group of militia, backed by hard-line elements of the Indonesian army, began to intimidate East Timorese people living in refugee camps, hindering the return process.81 Despite their efforts, tens of thousands moved 79  S/2002/80, 17 January 2002, ‘Report of the Secretary-General on the United Nations Transitional Administration in East Timor.’ 80  Ibid., para. 29. 81  The aim of these militia members was to reverse the independence vote in favour of Indonesia. See, (last accessed on 7 May 2015).

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back to East Timor. However, some who retuned were suspected of being part of the militia or other political groups, and thus deemed a serious risk to the long-term security of East Timor.82 Owing to these threats, the UN found it necessary to initiate a post-independence mission, the UN Mission of Support in East Timor (UNMISET), in order to ensure continuing stability.83 The international actors deployed in East Timor by the UN made considerable efforts to cope with the ongoing threats. In a military or law enforcement context, such efforts mostly take the form of detaining individuals believed to represent a threat to security. During the initial phase of its mission, INTERFET engaged in practices of security detention, and established its own interim measures to deal with detainees. However, as explained in the preceding section, INTERFET handed over the files of all detainees to the civil judiciary established by UNTAET84 and disbanded its temporary system. Nevertheless, as the security environment in East Timor remained precarious, it was still necessary to detain individuals for reasons of security. It is therefore important to examine how UNTAET dealt with these security detainees, including the extent to which the laws it applied complied with the relevant international legal norms. UNTAET’s Involvement in Security Detention Issues and Identifying the Correct Test under International Law Some preliminary points need to be dealt with before UNTAET’s practices in relation to security detention in East Timor can be explored. First, the issue of who met the definition of a security detainee under UNTAET’s policies needs to be clarified, as the way in which UNTAET classified individuals as security detainees was different from that of INTERFET. INTERFET mainly divided those it held into either criminal or security detainees; thus, a clear distinction was made between those who were detained for reasons of security and those who were detained on the basis of their alleged criminality. This dichotomy was also evident in the policies that were applied to each category. Evaluating INTERFET’s practices in relation to security detention was, therefore, relatively straightforward; however, the same cannot be said for UNTAET’s. Following its assumption of responsibility for the judicial system in East Timor, UNTAET really envisaged only one type of detention: criminal 4.2

82  Ibid., para. 31. 83  Paulo Gorjao, ‘The Legacy and Lessons of the United Nations Transitional Administration in East Timor’ (2002), 24 Contemporary Southeast Asia 313, 323. 84  S/2000/53, 26 January 2000, ‘Report of the Secretary-General on the United Nations Transitional Administration in East Timor’, para. 44.

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detention. UNTAET’s way of categorising detainees conformed to that which prevails in peaceful, well-run societies, where all publicly-administered activities are functioning normally. In such environments, since all detained persons are dealt with in a judicial context, a security detainee can be dealt with on the basis of the laws that they are alleged to have violated. If an individual is accused of having breached “national security laws” or having threatened ‘public order and security’, it can be deduced that he or she is a security detainee. In this light, when UNTAET’s security detention practices are discussed, alleged violations of comparable legislative provisions enacted by UNTAET should be examined, together with the coherence of the overall legal framework it set up. Second, under which branch of international law are UNTAET’s practices to be assessed? When detaining individuals in East Timor, INTERFET used the law of occupation to a large extent as a matter of policy. Hence, it was reasonable to measure INTERFET’s practices and policies against the relevant standards enshrined in the law of occupation. However, UNTAET was unwilling to make use of this area of international law; instead, it chose to apply human rights law. In Section 3 of its Regulation 1999/1 on the Authority of Transitional Administration in East Timor, UNTAET sets out the applicable legislation as that which had been in force prior to the adoption of Security Council Resolution 1272 on 25 October 1999 (i.e. Indonesian law), in so far as this is consistent with human rights treaties referred to in Section 2 of the Regulation. In Section 2, UNTAET requires all persons undertaking governmental duties to observe human rights standards recognised in major human rights treaties, such as the ICCPR.85 Consequently, it makes sense to view UNTAET’s approach to security detention through the prism of human rights law.

85  Section 2 of Regulation 1999/1 states: “In exercising their functions, all persons undertaking public duties or holding public office in East Timor shall observe internationally recognized human rights standards, as reflected, in particular, in: The Universal Declaration on Human Rights of 10 December 1948; The International Covenant on Civil and Political Rights of 16 December 1966 and its Protocols; The International Covenant on Economic, Social and Cultural Rights of 16 December 1966; The Convention on the Elimination of All Forms of Racial Discrimination of 21 December 1965; The Convention on the Elimination of All Forms of Discrimination Against Women of 17 December 1979; The Convention Against Torture and other Cruel, Inhumane or Degrading Treatment or Punishment of 17 December 1984; The International Convention on the Rights of the Child of 20 November 1989 . . . ”

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Scrutinising UNTAET’s Security Detention Policies under Human Rights Law 4.3.1 Overview Evaluating UNTAET’s security detention policies and practices in terms of human rights law necessitates having regard to two main bodies of law. In East Timor, as explained above, the main body of legislation applied during the transitional period was Indonesian law, in so far as this did not conflict with international human rights standards. At the same time, because UNATET was empowered by Security Council Resolution 1272 to exercise all legislative, executive and judicial authority in East Timor, UNTAET’s own regulations constituted another source of law. Hence, when examining UNTAET’s record in regard to dealing with security detainees, one must first discuss to what extent its decision to apply Indonesian law conformed to international human rights standards, and then explore the extent to which its own regulations, passed to replace parts of Indonesia’s legislation, complied with such norms.86 4.3

4.3.2 Compatibility of Indonesian Laws with Human Rights Standards UNTAET decided to apply Indonesian law unless this contravened internationally recognised human rights standards. This was presumably to avoid a legal vacuum during the transitional period in East Timor.87 However, UNTAET failed to specify clearly which parts of Indonesian law were inconsistent with human rights standards.88 In other words, it did not clarify when it was appropriate to apply Indonesian law and when not. For example, in the context of security detention, the applicable Indonesian laws were the Penal Code (KUHP) and the Criminal Procedural Code (KUHAP). KUHP and KUHAP contained many provisions that did not conform to international human rights standards. In particular, there was no clear legal basis upon which a person could be detained for reasons of security, and safeguards against arbitrary detention were also inadequate. The case of Afonso da Costa provides a good illustration of how security detention practices in East Timor failed to comply with the requirements of international law. A militia suspect, Mr. da Costa was detained by peaceenforcement forces in June 2000, accused of committing a ‘crime against the 86  Jonathan Morrow and Rachel White, ‘The United Nations in Transitional East Timor: International Standards and the Reality of Governance’ (2002) 22 Australian Yearbook of International Law 1, 10. 87  Hansjoerg Strohmeyer, ‘Policing the Peace: Post-Conflict Judicial System Reconstruction in East Timor’ (2001) 24 The University of South Wales Law Journal 171, 173. 88  Ibid., 174.

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state’.89 He was interrogated for five days without being brought before a judicial authority and without being granted access to legal counsel. The legal ground on which he had been detained was also questionable. He had been arrested under Article 107 of KUHP, which forbade the teaching of Marxism, Communism, and Leninism in Indonesia. This provision replaced a similar one in the Anti-subversion Law, which Indonesia had revoked in April 1999. In its Regulation 1999/1, UNTAET had specifically mentioned the inconsistency between Indonesia’s Anti-subversion Law and accepted human rights standards. Consequently, relying on this provision to detain Mr. da Costa plainly amounted to an infringement of his human rights. The problem was then compounded by the absence of effective procedural safeguards in relation to his detention: Mr. da Costa did not see a lawyer until October 2000, with his conditional release then being ordered in December 2000.90 As is clear from this case, choosing Indonesian law as the main applicable legal framework was questionable from a human rights point of view. Moreover, trying to interpret the complex relationship between Indonesian law and international human rights norms constituted another serious problem, exacerbated by the fact that this difficult task was then left to inexperienced judges and prosecutors.91 Some provisions of KUHP and KUHAP are obviously in violation of major human rights standards. For example, Articles 20–24 of KUHAP allowed individuals to be held for up to 20 days or more before being brought before a judge,92 clearly infringing accepted international legal norms. However—particularly in regard to identifying the legal grounds for an individual’s detention—determining the relationship between Indonesian law and the relevant human rights norms is more complicated.93 This, in turn, casts doubt on the appropriateness of choosing Indonesian law as the main legal regime applicable in East Timor during the transitional period. In fact, the selection of Indonesia’s law as the overarching legal framework caused widespread discontent among the East Timorese, and undermined the credibility of the mission.94 As a result, UNTAET was forced to enact regulations in order to rectify discrepancies between Indonesian law and the appropriate 89  Amnesty International, ‘East Timor: Justice Past, Present and Future’, July 2001, 25. 90  Ibid., 25 and 26. 91  Hansjoerg Strohmeyer, ‘Making Multilateral Interventions Work: The U.N. and the Creation of Transitional Justice Systems in Kosovo and East Timor’ (2001) 25 The Fletcher Forum of World Affairs 107, 112. 92  See the Indonesian Code of Criminal Procedure (1981), Articles 20–24. 93  Hansjoerg Strohmeyer (n. 87), 174. 94  Ibid.

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human rights provisions. Unfortunately, these regulations were themselves in breach of those provisions. 4.3.3

Compatibility of UNTAET’s Regulations with Human Rights Standards UNTAET adopted a number of regulations to deal with the disparities between KUHAP and human rights norms. Regulations 2000/11, 2000/14 and 2000/30 contain several provisions relating to criminal procedure. In particular, the much-anticipated Regulation 2000/30 on Transitional Rules of Criminal Procedure had been expected to replace KUHAP. However, not only did it fail to fully supersede KUHAP, the Regulation was also not fully compatible with human rights standards, especially as regards its provisions concerning the length of pre-trial detention and the length of time a detainee could be held before being brought before a judicial authority to determine the legality of his or her detention.95 While Regulation 2000/14 stipulated that a detainee must be brought before an investigating judge within 48 hours of arrest,96 Regulation 2000/30 extended this time-limit up to 72 hours.97 According to one senior UNTAET official, the increase from 48 to 72 hours was necessary owing to the compelling circumstances in East Timor.98 The difficulty is how then to reconcile the extraordinary conditions that prevailed in East Timor with proper respect for the legal rights of detainees. This assessment is particularly important in relation to security detention cases, since, in a post-conflict environment, it is very likely that the law-enforcement agencies will detain people on ‘exceptional grounds’. For example, Regulation 2000/30 determined that pre-trial detention should not exceed six months from the date of arrest.99 However, this provision was subject to the following exceptions: Taking into consideration the prevailing circumstances in East Timor, in the case of a crime carrying imprisonment for more than five years under the law, a panel of the District Court may, at the request of the public prosecutor, and if the interest of justice so requires, based on compelling

95  Suzannah Linton (n. 6), 144. 96  Section 12.7 of UNTAET Regulation 2000/14. 97  Section 6.2(e) of UNTAET Regulation 2000/30. 98  Amnesty International, (n. 89), 21–22. 99  Section 20.10 of UNTAET Regulation 2000/30.

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grounds, extend the maximum period of pretrial detention by an additional three months.100 On exceptional grounds, and taking into account the prevailing circumstances in East Timor, for particularly complex cases of crimes carrying imprisonment of ten years or more under the law, a panel of the District Court may, at the request of the public prosecutor, order the continued detention of a suspect, if the interest of justice so requires, and as long as the length of pretrial detention is reasonable in the circumstances, and having due regard to international standards of fair trial.101 Regulation 2000/30 provided no guidance as to how phrases such as ‘prevailing circumstances’, ‘interest of justice’, ‘compelling grounds’ and ‘exceptional grounds’ were to be interpreted when determining whether a detainee was to be held for an additional three months or for an indefinite period.102 Nor did it elaborate on what would constitute “international standards of fair trial” in this context.103 Security Council Resolution 1272 bestowed on UNTAET ultimate authority to amend local laws in East Timor, or to enact new ones. The conferral of such power can be construed as imposing an obligation on UNTAET to change Indonesian law where necessary in order to ensure that it met internationally recognised standards.104 However, the critical issue that immediately arises as a result of this, and which was left unclear by UNTAET, was what would constitute such international standards. For example, Section 20.12 of Regulation 2000/30 permitted an extension of the length of detention so long as this was required by exceptional circumstances. This clearly reflects Article 78 of GCIV, which allows long-term internment of individuals for imperative reasons of security. To what extent, then, could this extraordinary policy be justified under human rights law,105 which allows security detention in only a very limited set of circumstances? In emergency situations, human rights law provides for the 100  Section 20.11 of UNTAET Regulation 2000/30. 101  Section 20.12 of UNTAET Regulation 2000/30. 102  Suzannah Linton, (n. 6), 144. 103  Ibid. 104  Annemarie Devereux, ‘Searching for Clarity: A Case Study of UNTAET’s Application of International Human Rights Norms’ in Nigel D. White and Dirk Klaasen (eds.), The UN, Human Rights and Post-Conflict Situations (Manchester: Manchester University Press, 2005), 303. 105  Michael Kelly, ‘The UN, Security and Human Rights: Achieving a Winning Balance’ in Nigel D. White and Dirk Klaasen (eds.), The UN, Human Rights and Post-Conflict Situations (Manchester: Manchester University Press: 2005), 143.

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possibility of derogation.106 However, even if such measures of derogation are invoked, human rights standards applicable to security detention cases are still superior to those provided for under the law of occupation.107 Besides its failure to provide a clear and credible legal framework to be used in governing East Timor during the transitional period, UNTAET failed to remove irregularities in Indonesian law that provided insufficient procedural safeguards for detainees. Under KUHAP, criminal investigators were responsible for arresting and detaining suspects, as well as investigating alleged crimes. During the UN mission, this power rested with CIVPOL, which shared its authority with CNRT (Conselho Nacional de Resistência Timorense—National Council of East Timorese Resistance). CNRT was involved in arresting and interrogating some of the returning East Timorese refugees suspected of being members of the militia.108 The identity of CNRT gave enough cause for concern in respect of its detention practices. UNTAET also failed for a while to put into place an effective appeal procedure for detainees. Even though Regulation 2000/11 provided for the establishment of the Court of Appeal in March 2000, it only began to operate a few months later.109 Thus, during the period before the Court’s establishment, no real opportunity for appeal existed. 4.4 Lessons Learned from UNTAET’s Security Detention Practices Some important points can be gleaned from UNTAET’s experiences in relation to security detention issues in a post-conflict environment. First, transitional administrations must use the law-making powers entrusted to them in a transparent and unambiguous manner. With regard to security detention cases, the applicable law—whether it be that already in use in the territory, or new legislation enacted by the transitional administration—should be clear and certain. As explained above, this was not the case with regard to UNTAET. Second, endowed with all legislative, executive and judicial authority in respect of East Timor, UNTAET could be expected to use its wide-ranging powers to construct a viable judicial system that could deal with the issue of 106  See, for instance, Article 4 of the ICCPR. 107  This situation is further complicated by the fact that the possibility of derogating from human rights norms was never proclaimed during the UN mission in East Timor. Rachel Opie, ‘International Human Rights Promotion and Protection through Peace Operation: A Strong Mechanism’ in Michael Bothe and Boris Kondoch (eds.), International Peacekeeping—The Yearbook of International Peace Operations (2002) 143; Frederik Naert, ‘Detention in Peace Operations: The Legal Framework and Main Categories of Detainees” (2006) Institute for International Law, Working Paper No. 94, 20. 108  Suzannah Linton (n. 6), 140. 109  Ibid., 143.

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detention fairly. This, however, was not merely dependent on the efforts of UNTAET. The international actors that initiated the mission also needed to demonstrate their commitment to the transformation and reconstruction of East Timorese society, but failed to offer sufficient support, especially in terms of the funding they provided.110 5 Conclusion This chapter examined the security detention policies of UNTAET and INTERFET under international law. It determined that the detention practices of both these international entities lacked clarity to a certain extent: the legal basis on which a person could be detained for security reasons, and the review process—including the nature and effectiveness of the mechanism through which the detention order could be challenged—raised particular problems. However, INTERFET’s decision to base its treatment of detainees on GCIV is to be applauded. Overall, the experiences of UNTAET and INTERFET allow some common lessons to be drawn. The first relates to identifying the appropriate legal framework to apply in a post-conflict setting. The branch of international law formally applicable to both UNTAET and INTERFET was human rights law. However, the law of occupation could be used by analogy.111 As is apparent in relation to the treatment of detainees, developing a relationship between these two areas of international law can help clarify what security detention practices should be followed in a post-conflict environment. This is also true with regard to ascertaining the legal basis on which civilians are to be held for reasons of security, as well as the type of review mechanism that is to be put in place. It is certainly more difficult to simultaneously apply the corresponding rules of the law of occupation and human rights law to these issues. Nonetheless, the detention policies of international actors should satisfy at least the minimum requirements set out in GCIV. For example, internment should be imposed only if this is genuinely necessary for imperative reasons of security, and the review mechanism, although it can be a non-judicial body, must nevertheless be impartial and independent from the authority that 110  Markus Benzing, ‘Midwifing a New State: The United Nations in East Timor’ (2005) 9 Max Planck Yearbook of United Nations Law 295, 372. 111  The applicability of human rights law and the law of occupation to multinational peacesupport operations and UN transitional administrations is discussed in detail in previous chapters.

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initially ordered the detention. However, as the ‘show cause’ procedure adopted by INTERFET demonstrated, regard must also be had to general principles laid down in human rights law, so as to avoid arbitrary detention and unnecessary deprivation of liberty. The East Timorese case also allows another significant lesson to be drawn. As indicated above, interpreting general human rights norms in light of the more specific rules of the law of occupation can help to bring transparency and certainty to security detention policies. However, there were other factors that influenced security detention issues in East Timor. It was observed that a more cordial relationship between the local population and the international actors administering the territory can lead to the adoption of less stringent detention policies. INTERFET detained civilians on the ground of alleged criminality more than for security reasons. This, in turn, had an impact on the type of proceedings these individuals were subjected to, since criminal detainees, unlike security ones, were dealt with via the quasi-judicial DMU system. Having said this, foreign entities charged with the temporary administration of a post-conflict territory are not always welcomed by the local people. In particular, cultural and religious differences between the administering bodies and the administered population can encourage the development of a hostile environment, which is then likely to lead to the implementation of severe security measures.112 The case of East Timor also highlights the fact that the creation of a viable judicial system is a critical element in bringing detention practices into conformity with international law. Security detention is more likely to take place during the period when the administered territory is in transition from a state of war to one of peace, and, the longer the transition takes, the more detentions for reasons of security are likely to occur. Consequently, efforts to reconstruct a war-torn society, including establishing a functioning judiciary, play an extremely important part in achieving a permanent peace. In furtherance of this objective, international administrations should use their legislative powers to alter problematic local laws and to enact new ones. However, as pointed out above, such efforts depend upon the unwavering commitment of the international community—not least in financial terms—to the goal of transforming post-conflict societies.

112  For a similar line of reasoning, see Steven Ratner, ‘Foreign Occupation and International Territorial Administration: The Challenges of Convergence’ (2005) 16 European Journal of International Law 695, 710.

CHAPTER 8

Security Detention Practices during the International Territorial Administration of Iraq 1 Introduction The administration of territories by international actors has formed an important part of international law and politics, contributing significantly to the development of the international legal regime. From the earliest cases of the Saar Territory and the Free City of Danzig, to the more recent ones of Kosovo, Afghanistan and Iraq, the process and concept of international territorial administration have been extremely dynamic, and has evolved considerably over time. Since the end of the Cold War, in particular, increasing attention has been paid to the subject of international territorial administration, as the UN became much more actively engaged in helping war-torn territories. However, the UN’s involvement has not been the same in each case, and can take one of three forms: (i) providing ‘technical assistance’ to local actors to help them construct a functioning society with properly-run domestic institutions; (ii) authorising a group of states or another international organisation to carry out reconstruction efforts in the territory concerned; and (iii) establishing a post-conflict administration itself.1 This book has mainly focused on the issue of direct territorial administration by the UN, using the examples of Kosovo and East Timor. The case of Iraq is different, and falls into the second category referred to above. Acting under Chapter VII of the UN Charter, the UN Security Council entrusted a multinational coalition of states with a mandate to rebuild the country. Despite this difference, the Iraqi case is relevant for a number of reasons. However, before listing such reasons, it is worth noting that examining security detention practices in Iraq should not underscore the crucial differences between Iraq and cases of direct administration by the UN (Kosovo and East Timor). For instance, comparing and contrasting the Iraqi case with Kosovo and East Timor does not add to the legitimacy of the former. While even the legitimacy of post-conflict administrations created directly by the UN may be question1  Rüdiger Wolfrum, ‘International Administration in Post-Conflict Situations by the United Nations and Other International Actors’ (2005) 9 Max Planck Yearbook of United Nations Law 649–696, 656.

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able, the legitimacy of the Iraqi administration—bearing in mind that it was run by the US (which was, as shown below, an occupying power bound by the law of occupation to a certain extent during its presence in Iraq)—was controversial a fortiori. Discussing the legitimacy of these administrations in depth requires a separate and indebted study, which is outside the scope of this book. The basic premise of this book in setting out the following reasons is rather to adduce that the Iraq case also deserves a close scrutiny. Despite the aforementioned differences, the Iraq case remains a ripe source for comparison for three particular reasons. The first one concerns the similarity between the degree of authority conferred on the Coalition Provisional Authority (CPA) by the Security Council and other UN territorial administration missions, especially that in Kosovo. Resolution 1483 of the Security Council recognised similar substantive powers and responsibilities to (CPA) in Iraq as did Resolution 1244 to the UN Mission in Kosovo (UNMIK).2 And, in common with Kosovo, Iraq underwent a governance vacuum following the removal of Saddam Hussein.3 Resolution 1483 required the CPA to promote, inter alia, the reconstruction and sustainable development of Iraq, while vesting it with all legislative, executive and judicial authority to fulfil its obligations. Second, even though the CPA appeared to be responsible for administering Iraq alone, the Security Council also played a key role by establishing guidelines for the administration while the CPA dealt with issues of governance on the ground.4 As Stahn argues, ‘the administration of Iraq became thereby more or less a replication of UN administration missions with exchanged roles, namely with a multinational collation of states exercising governing responsibilities under the guidance of the Council’.5 Third, and most importantly, the environment in which security detentions were undertaken in Iraq was similar to those in Kosovo and East Timor. In all three cases, the domestic and judicial mechanisms necessary for maintaining public security and order did not function properly. For this reason, the Security Council found it necessary to deploy peace-enforcement forces alongside the civil administration in Iraq. The Council empowered MNF to

2  Brett H. McGurk, ‘Revisiting the Law of Nations Building: Iraq in Transition’ (2004–2005) 45 Virginia Journal of International Law 451, 459. 3  Carsten Stahn, The Law and Practice of International Territorial Administration (Cambridge: Cambridge University Press, 2008), 368. 4  Ibid. 5  Ibid.

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maintain public order and security.6 As part of its mission, the MNF detained large numbers of Iraqi civilians for reasons of security. One example of this detention practice is the Al-Jedda case, which involved the allegation that UK forces operating under the structure of the MNF violated the right to liberty of the applicant.7 The circumstances that led to this case were very similar to those in Saramati,8 arising from the applicant’s detention by French KFOR in Kosovo.9 Consequently, in terms of security detention issues, there are certain parallels between the Iraqi case and territorial missions directly administered by the UN, particularly the one in Kosovo. For the reasons above, examining security detention practices during the international administration of Iraq is a worthwhile endeavour, allowing useful conclusions to be drawn regarding security detention issues in a postconflict setting. Before doing so, however, it is useful to set out the background that led to the establishment of the administration. 2

The Background to the Iraqi Case

The UN intervened in Iraq after the end of armed conflict between Iraqi forces and the US, the UK and their allies. The organisation had played only a minor role before the war; the major actors were the states that invaded Iraq in March 2003, with the US being the prime mover in toppling Saddam Hussein. Thus, the background to the international territorial administration of Iraq may be best understood by looking at the US’s justifications for waging war against the country. The legal argument put forward by the US to justify its military action against Saddam involved a combination of relevant Security Council resolutions and 6  UNSC Res 1511 (16 October 2003) UN Doc S/RES/1511, para. 1; UNSC Res 1546 (8 June 2004) UN Doc S/RES/1546, para. 10. 7  Al-Jedda v. United Kingdom (App No. 27021/08) ECHR 07 July 2011. 8  Behrami v. France, Saramati v. France, Germany and Norway (App No. 71412/01 & 78166/01) ECHR 2 May 2007. The factual circumstances led to these cases are discussed in the second chapter on the responsibility in peace support operations. 9   Alexander Orakhelashvili, ‘UN Security Council- Interpretation of Security Council Resolutions- Jus Cogens- Freedom from Arbitrary Deprivation of Liberty-Detention of Individuals under Human Rights Law and Humanitarian Law’ (2008) 102 American Journal of International Law 337, 342; Francesco Messineo, ‘The House of Lords in Al-Jedda and Public International Law: Attribution of Conduct to UN-authorized Forces and the Power of the Security Council to Displace Human Rights’ (2009) 56 Netherlands International Law Review 35.

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the Bush Doctrine of anticipatory self-defence.10 The first relevant Security Council Resolution was adopted after the invasion of Kuwait by Iraq in August 1990. The Council passed Resolution 660,11 condemning Iraq for its unlawful action, and demanding the immediate withdrawal of Iraqi forces from Kuwait. When Iraq refused to comply with its order, the Council adopted Resolution 678 under Chapter VII of the Charter,12 which authorised a collective use of force against the country. However, the intention of the Security Council went beyond the liberation of Kuwait. Resolution 678 delegated a power to ‘member states . . . to restore peace and security in the area’.13 Thus, the maintenance of security in the region was another major objective of the international intervention. Indeed, Resolution 687 was passed for this purpose. In the resolution, the Security Council explicitly addressed the issue of the threat posed to the region by Iraq’s chemical and biological weapons. Therefore, it required Iraq: To unconditionally accept the destruction, removal, or rendering harmless, under international supervision, of: (a) All chemical and biological weapons and all stocks of agents and all related subsystems and components and all research, development, support and manufacturing facilities; (b) All ballistic missiles with a range greater than 150 kilometres and related major parts, and repair and production facilities.14 Furthermore, the Security Council established the UN Special Commission (UNSCOM) and authorised the International Atomic Energy Agency (IAEA) to inspect the weapons possessed or developed by Saddam Hussein.15 It also placed the burden of proving that the provisions of Resolution 687 had been

10  Anthony Anghie, ‘The War on Terror and Iraq in Historical Perspective’ (2005) 43 Osgoode Hall Law Journal 45; Patrick McLain, ‘Settling the Score with Saddam: Resolution and Parallel Justifications for the Use of Force against Iraq’ (2003) 13 Duke Journal of Comparative and International Law 233. 11  UNSC Res 660 (2 August 1990) UN Doc S/RES/660, para. 2. 12  UNSC Res 678 (29 November 1990) UN Doc S/RES/678, para. 2. 13  Christopher Greenwood, ‘New World Order or Old?: The Invasion of Kuwait and the Rule of Law’ (1992) 55 Modern Law Review 153, 164–165; Christopher Greenwood, ‘International Law and the Pre-emptive Use of Force: Afghanistan, Al-Qaida, and Iraq’ (2003) 4 San Diego International Law Journal 7, 26. 14  UNSC Res 687 (3 April 1991) UN Doc S/RES/687, para. 8. 15  Ibid., paras. 12–13.

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fully complied with onto the Iraqi authorities.16 Despite imposing such stringent conditions, the Security Council found Iraq’s compliance with these obligations in relation to its nuclear weaponry to be unsatisfactory. Iraq did not allow the international inspectorate bodies to carry out their activities in its territory unhindered. It imposed severe restrictions on UNSCOM and IAEA. The report of UNSCOM to the Security Council states that: Iraq did not provide the full cooperation it promised on 14 November 1998. In addition, during the period under review, Iraq initiated new forms of restrictions upon the Commission’s work. Amongst the Commission’s many concerns about this retrograde step is what such further restrictions might mean for the effectiveness of long-term monitoring activities. In spite of the opportunity presented by the circumstances of the last month, including the prospect of a comprehensive review, Iraq’s conduct ensured that no progress was able to be made in either the fields of disarmament or accounting for its prohibited weapons programmes. Finally, in the light of this experience, that is, the absence of full cooperation by Iraq, it must regrettably be recorded against that the commission is not able to conduct the substantive disarmament work mandated to it by the Security Council and, thus, to give the Council the assurances it requires with respect to Iraq’s prohibited weapons programmes.17 The Security Council condemned the continued violations of Resolutions 687 in its later Resolutions 949 (1994), 1060 (1996), 1115 (1997), 1137 (1997), 1154 (1998) and 1205 (1998), and requested that Iraq fully cooperate with the international inspectorate bodies and fulfil its other obligations regarding its weapons of mass destruction. However, the international pressure exerted on Iraq appeared to be in vain. The Iraqi government remained uncooperative, and the international inspectors were withdrawn from Iraq. In the meantime, Iraq’s refusal to comply with the inspection process led, in 1998, to the initiation of military attacks against the country by the US and the UK.18 The operation, designated ‘Desert Fox’, consisted of a four-day air16  Ibid., para. 12. 17  In particular, see the conclusion of the Report at (last accessed on 7 May 2015). 18   Christopher Greenwood, ‘International Law and the Pre-emptive Use of Force: Afghanistan, Al-Qaida, and Iraq’ (n. 10), 28.

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strike launched on 15 December 1998.19 Its aim was to inhibit Iraq’s ability to make and use weapons of mass destruction.20 In launching their aerial attack, the US and the UK relied on Security Council Resolutions 1154 and 1205, in particular—including their stipulation that Iraq would face serious consequences if it continued to violate Resolution.21 The bombing campaign, however, drew a mixed response from other states. While some states, such as Australia and Canada, expressed their support, the operation was criticised by other states.22 Russia and China, in particular, condemned the action as unlawful.23 France adopted a more cautious approach and deplored the regrettable turn of events which had led to the US and UK launching their attack.24 In event, the operation had an effect on subsequent UN policy with regard to Iraq. Following ‘Operation Desert Fox’, France and Russia proposed changes to the system of monitoring Iraq’s programme of weapons of mass destruction.25 In 1999, Resolution 1284 replaced UNSCOM with the United Nations Monitoring, Verification and Inspection Commission (UNMOVIC). However, Iraq also refused to allow this new body to carry out its work in Iraqi territory. In 2002, the Security Council adopted Resolution 1441. This Resolution recalled all the previous relevant resolutions, including Resolution 678, which empowered member states to use collective force against Iraq.26 It also stated that Iraq was in ‘material breach’ of its obligations under Resolution 687.27 Nonetheless, the Council decided to give Iraq a final opportunity to fulfil its disarmament obligations. In particular, it required Iraq to provide ‘a currently accurate, full, and complete declaration of all aspects of its programmes to develop chemical, biological, and nuclear weapons, ballistic missiles, and other delivery systems’.28 In case of continued non-compliance with the requirements of 19  House of Commons, ‘Iraq: “Desert Fox” and Policy Development’ (1999) Research Paper 99/13, 25. 20  See statements from the US Department of Defense at (last accessed on 7 May 2015). 21  House of Commons (n. 19), 27. For a detailed discussion on the legality of ‘Desert Fox’, see Marc Weller, ‘The Legality of the Threat of Use of Force against Iraq’ (1998) Journal of Humanitarian Assistance. 22  House of Commons (n. 19), 32. 23  Ibid. 24  Ibid. 25  Ibid., 39. 26  UNSC Res 1441 (8 November 2002) S/RES/1441. 27  Ibid., para. 1. 28  Ibid., para. 3.

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Resolution 1441, the Council expressly warned Iraq that it would face serious consequences.29 In December 2001, Iraq declared its willingness to co-operate with inspectors from UNMOVIC and the IAEA. But the reports presented to the Security Council by the Executive Chairman of UNMOVIC, Dr. Hans Blix, and the Director-General of the IAEA, Dr. Mohammed El Baradei, showed that Iraq was still in breach of its obligations arising out of Resolution 687.30 Even though Dr. El Baradei reported that his team did not find any evidence that Iraq had revived its nuclear weapons programme following the end of the war in 1991,31 the progress made by Iraq was deemed insufficient to justify finding that Iraq was no longer in material breach of Resolution 687.32 Whether Resolution 1441 provided an authority for the use of force against Iraq because of its ongoing violation of its obligations under Resolution 687 was not clear. The express legal basis for use of force in jus ad bellum was lacking. The language of Resolution 1441 on this matter was different from that of Resolution 678. It has been argued that the former includes no explicit reference to the use of force.33 It was against this background that the US, the UK and a number of other states decided to wage war against Saddam Hussein by relying on Resolution 678. The driving force behind the military action against Iraq was not only the enforcement of the relevant Security Council resolutions: the right to self-defence was also invoked. Following the terrorist attacks of September 11, 2001, the US mounted a widescale campaign against terrorism. The main U.S target was not only Al-Qaeda, responsible for the attacks on US territory, but also any ‘rogue’ state thought to be harbouring or assisting terrorists. The government of George W. Bush strongly believed that there was a connection between Al-Qaeda and Iraq. Commenting on Iraq in his speech, President Bush declared: We know that Iraq and the al Qaeda terrorist network share a common enemy—the United States of America. We know that Iraq and al Qaeda 29  Ibid., para. 13. 30   Christopher Greenwood, ‘International Law and the Pre-emptive Use of Force: Afghanistan, Al-Qaida, and Iraq’ (n. 13), 32; UN Doc. S/PV.4714, 34–35; House of Lords Sessional Papers, ‘Iraq: UN Documents . . . ’ (Cm 5785, 2003), 15. 31  UN Doc. S/PV.4692 (2003), 12. 32   Christopher Greenwood, ‘International Law and the Pre-emptive Use of Force: Afghanistan, Al-Qaida, and Iraq’ (n. 13), 32. 33  Ibid., 31; Frederic Kirgis, ‘Security Council Resolution 1441 on Iraq’s Final opportunity to Comply with Disarmament Obligations’ (2002) American Society of International Law Insights.

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have had high-level contacts that go back a decade. Some al Qaeda leaders who fled Afghanistan went to Iraq. These include one very senior al Qaeda leader who received medical treatment in Baghdad this year, and who has been associated with planning for chemical and biological attacks. We’ve learned that Iraq has trained al Qaeda members in bombmaking and poisons and deadly gases.34 Furthermore, the president claimed that Iraq could provide its weapons of mass destruction to terrorist groups. On another occasion, Bush touted the possibility that “unbalanced dictators with weapons of mass destruction can deliver those weapons on missiles or secretly provide them to terrorist allies”35 According to the US, such a scenario constituted a serious threat to its security: one that could be dealt with adequately only by responding to it in advance.36 In other words, the Bush government claimed that it had the right to exercise pre-emptive self-defence. 3

The Coalition Provisional Authority and Its Security Detention Policies

3.1 Overview On May 1, 2003, President Bush declared that the major combat operation in Iraq had come to an end.37 His announcement signalled the beginning of the occupation phase, which was followed by the involvement of different types of international actors at various stages. The Security Council provided the CPA and the MNF with immense powers to administer Iraq during its transition to self-governance. Their authority extended to detaining individuals for reasons of security. However, the policies and practices of both these entities raised serious doubts and problems as the extent to which they complied with the relevant provisions of international law. Authorised under Security Council Resolution 1483, the CPA carried out many activities in connection with the post-conflict administration of Iraq. 34  See Remarks by George Bush on Iraq (7 October 2002) at (last accessed on 7 May 2015). 35  See the Graduation Address by George Bush to the United States Military Academy. 36  Patrick McLain (n. 10), 278. 37  See the Address to the Nation on Iraq by George Bush at (last accessed on 7 May 2015).

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Some of its projects, especially those that involved changes to Iraqi laws governing the economy and investment raised particular concerns relating to the legislative capacity of an occupying power. To what extent can the occupier revoke pre-existing laws in the occupied territory and enact new ones, and what implications does this have for security detention issues? These issues need to be explored before the CPA’s detention practices can be examined. The Legal Basis for the Creation of the CPA and the Problem of the Law to be Applied On 8 May 2003, the permanent representatives of the UK and the US sent a joint letter to the President of the Security Council. The letter stated that: 3.2

The United States, the United Kingdom and their coalition partners, acting under existing command and control arrangements through the commander of coalition forces, had created the Coalition Provisional Authority (“CPA”)” to administer Iraq temporarily.38 On 22 May 2003, the Security Council passed Resolution 1483. Acting under Chapter VII of the UN Charter, the Council, noting that the multinational coalition of states constituted ‘occupying powers’,39 called on the CPA ‘to promote the welfare of the Iraqi people and work towards the restoration of conditions of stability and security’40 by fully complying with ‘their obligations under international law, including in particular the Geneva Conventions of 1949 and the Hague Regulations of 1907’.41 On 16 May 2003, the CPA promulgated CPA Regulation No. 1. Its Section 1(2) entrusted the CPA with ‘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’.42

38  Andrea Carcano, ‘End of the Occupation in 2004? The Status of Multinational Force in Iraq after the Transfer of Sovereignty to the Interim Iraq Government’ (2006) 11 Journal of Conflict & Security Law 41, 43–44; M. Cherif Bassiouni, ‘Legal Status of US Forces in Iraq from 2003–2008’ (2010) 11 Chicago Journal of International Law 1, 6; UN Doc. S/2003/538, 8 May 2003. 39  UNSC Res 1483 (22 May 2003) S/RES/1483, introductory remarks. 40  Ibid., para. 4. 41  Ibid., para. 5. 42  CPA Regulation 1, Section 1(2).

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In exercising its law-making powers, the CPA issued several orders and memorandums that contained binding instructions and standards for undertaking security detentions in Iraq. Section 3(1) of CPA Regulation No. 1 states that: In carrying out the authority and responsibility vested in the CPA, the Administrator will, as necessary, issue Regulations and Orders. Regulations shall be those instruments that define the institutions and authorities of the CPA. Orders are binding instructions issued by the CPA. Regulations and Orders will remain in force until repealed by the Administrator or superseded by legislation issued by democratic institutions of Iraq. Regulations and Orders issued by the Administrator shall take precedence over all other laws and publications to the extent such other laws and publications are inconsistent. The Administrator may also from time to time issue Public Notices. The Administrator could also promulgate Memoranda so as to interpret or explain the application of any Order and Regulation.43 As is clear from Regulation 1, the main sources of law governing the role of the CPA in Iraq were the law of occupation and Security Council Resolution 1483. However, the relationship between the two was never clearly defined. This gave rise to considerable controversy as to the scope of the regulatory authority and responsibility that had been vested in the CPA. Another area of doubt concerned the legal standards that would apply to the enactments of the CPA. Section 2 of CPA Regulation No. 1 states that: Unless suspended or replaced by the CPA or superseded by legislation issued by democratic institutions of Iraq, laws in force in Iraq as of April 16, 2003 shall continue to apply in Iraq insofar as the laws do not prevent the CPA from exercising its rights and fulfilling its obligations, or conflict with the present or any other Regulation or Order issued by the CPA.44 The CPA’s selection of local Iraqi laws as the main applicable law was comparable to the similar approach followed by the UN international territorial administrations in Kosovo and East Timor.45 43  CPA Regulation 1, Section 4. 44  CPA Order No. 1, Section 2 setting out the applicable law in Iraq. 45  UNMIK Regulation 1999/24, Section 1(1) states that “the law applicable in Kosovo shall be: (a) the regulations promulgated by the Special Representative of the Secretary-General

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The CPA’s approach, however, was questionable because of the way it determined the legal standards against which local Iraqi laws were assessed. Although in some instances it referred to human rights law and the Fourth Geneva Convention (GCIV),46 the CPA frequently preferred to take into account the standards enshrined in its own Orders and Regulations when appraising the suspension or continued application of Iraq’s laws. For instance, in CPA Order No. 13, which concerned the establishment of a Central Criminal Court of Iraq (CCCI), the CPA required the CCCI to apply Iraqi laws as modified by CPA orders, not in so far as they were consistent with international standards.47 3.3 The Law of Occupation and Security Council Resolution 1483 3.3.1 Overview The problems outlined above indicate the need to explore the legislative capacity conferred upon the CPA by the Security Council. Did the Council empower the CPA to enact laws only within the scope of the traditional law of occupation? Or was the CPA permitted to exceed that framework, and, if so, was it subject to any qualification? These questions can be addressed by examining to what extent the Security Council can derogate from the law of occupation, and whether it has done so in the case of Iraq. The power of the Security Council to change or set aside the application of the law of occupation has already been dealt with in previous chapters. The law of occupation is an important area of international law that can be applied to UN-authorised missions48 and the direct administration of territories by

and subsidiary instruments issued thereunder; and (b) the law in force in Kosovo on 22 March 1989. In case of a conflict, the regulations and subsidiary instruments issued thereunder shall take precedence”; UNTAET Regulation 1999/1, Section 3 reads that “the laws applied in East Timor prior to 25 October 1999 shall apply in East Timor insofar as they do not conflict with the standards referred to in section 2 the fulfillment of the mandate given to UNTAET under United Nations Security Council Resolution 1272 (1999), or the present or any other regulation and directive issued by the Transitional Administrator”; Carsten Stahn (n. 3), 664. 46  For instance, in its Memorandum No. 3, the CPA affirmed that the purpose of the Memorandum was to modify Iraqi laws that were inconsistent with human rights law, and that the processing of security internees was to be managed in accordance with standards laid down in GCIV. CPA Memorandum No. 3, Section 1(1) paras. c and d. 47  CPA Order No. 13, Section 4(1). 48  See Chapter 4, which deals with the relationship between international humanitarian law and human rights law and its implications for UN-authorised security missions.

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the UN.49 It is has already been pointed out that, acting under Chapter VII of the UN Charter, the Security Council has the power to annul the application of the law of occupation to such operations and administrations, unless in doing so it would violate a jus cogens norm of international law. In discussing the Iraqi situation, the intention is rather to explore whether—and, if so, to what extent—the Security Council can derogate from the principles and substantive norms of the law of occupation, particularly those that require the occupying power to preserve the status quo in the occupied territory. Security Council Resolution 1483 left this issue unclear, and in fact caused considerable doubt and controversy. Before doing so, however, it is necessary to examine the extent to which the law of occupation itself allows transformative changes to be carried out in an occupied territory. 3.3.2 The Evolution of the Notion of Transformative Military Occupation The development of the notion of transformative military occupation is closely linked with changes in the conception and theory of war.50 In the nineteenth century, conflicts predominantly involved the armies of different states, and the lives of civilians were relatively unaffected by war.51 The duration of any subsequent occupation by the victorious power was short, and the occupant would not be concerned with administering the territory, or regulating its economic or social life. Consequently, during the drafting of the Hague Regulations and the Geneva Conventions, the weaker states, which were more likely to be conquered by stronger ones, sought to increase the responsibility of the occupying power vis-à-vis the local population, with the object of ensuring a return to peaceful, normal life as soon as possible.52 Article 43 of the Hague Regulations reflects this purpose.53 It provides that: 49  See Chapter 5, examining security detention practices during the international territorial administration of Kosovo. 50  Eyal Benvenisti, ‘The Security Council and the Law of Occupation: Resolution 1483 on Iraq in Historical Perspective’ 1. 51  Ibid. 52  Ibid., 4; Eyal Benvenisti, The International Law of Occupation (Princeton: Princeton University Press, 1993), 10. 53   This provision forms part of customary international law. International Military Tribunal in Nuremberg, ‘Trial of the Major War Criminals’ (1947) 41 American Journal of International Law 172, 248–249; Legal Consequences of the Construction of a Wall (Advisory Opinion) 2004, paras. 89 and 124; G. Von Glahn, The Occupation of Enemy Territory—A Commentary on the Law and Practice of Belligerent Occupation (1957), 95; David Kretzmer, The Occupation of Justice—The Supreme Court of Israel and the Occupied Territories (2002), 57.

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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 was subsequently consolidated by GCIV. The overall aim of GCIV is to protect the inhabitants of the occupied territory against the foreign occupying power.54 It places numerous obligations on the occupier.55 Article 64 of GCIV states that: The penal laws of the occupied territory shall remain in force, with the exception that they may be repealed or suspended by the Occupying Power in cases where they constitute a threat to its security or an obstacle to the application of the present Convention. Subject to the latter consideration and to the necessity for ensuring the effective administration of justice, the tribunals of the occupied territory shall continue to function in respect of all offences covered by the said laws. The Occupying power may, however subject the local population of the occupied territory to provisions which are essential to enable the Occupying Power to fulfil its obligations under the present Convention, to maintain the orderly government of the territory, and to ensure the security of the Occupying Power, of the members and property of the occupying forces or administration, and likewise of the establishments and lines of communication used by them. Even though Article 64 of GCIV seems, prima facie, to address only penal laws, it can be argued that it encompasses other types of legislation, such as those concerning the civil and constitutional law of the occupied territory.56 Hence, Article 64 of GCIV, together with Article 43 of the Hague Regulations, confer on the occupant some level of power to change the local laws or introduce new ones, in order to establish and maintain public life and order in the occupied territory.57

54  Eyal Benvenisti (n. 50), 10. 55  Ibid., 11. 56  Ibid., 12. 57  Adam Roberts, ‘Transformative Military Occupation: Applying the Laws of War and Human Rights’ (2006) 100 American Journal of International Law 580, 588.

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However, the traditional law of occupation, which provided some moderate grounds on which existing local laws could be altered, via an interpretation of Article 43 of the Hague Regulations and Article 64 GCIV, was challenged in the wake of the Second World War. During this period, occupations other than those arising from the natural consequences of war began to emerge. Some occupations, for example, were directly aimed at changing the political order of the occupied territory.58 Following the defeat of Germany in 1945, for example, the Allies deliberately implemented a de-nazification process, detained large numbers of civilians for security reasons, revoked most of the country’s existing legislation, and introduced many social reforms.59 Thus, the nature of occupation itself has changed, becoming a long-term transformative political project aimed at serving the interests of the occupying power. Since the end of the Cold War, the reconstruction of war-torn territories through the deployment of international forces has become a much more widespread practice.60 More importantly, projects of this kind have been undertaken under the auspices of the UN. Acting under Chapter VII of the UN Charter, the Security Council has vested significant authority in civil and military entities to promote the welfare of the inhabitants of such territories. For example, in enacting Resolution 1483, the Security Council conferred on the CPA certain powers to administer the post-conflict territory of Iraq. The issue which must then be examined is whether—and, if so to what extent—Resolution 1483 derogated from the traditional framework of the law of occupation. 3.3.3 Did Resolution 1483 Actually Derogate from the Law of Occupation? Paragraph 5 of Resolution 1483 clearly calls upon all parties involved in the post-conflict administration of Iraq to comply with their obligations under the law of occupation, in particular the provisions of the Hague Regulations of 1907 and the Geneva Conventions of 1949. However, paragraph 4 of the resolution also calls upon the Authority (the CPA) to advance the welfare of the Iraqi people by effectively administering the post-conflict territory. This latter obligation may require the CPA to deviate from the traditional framework of the law of occupation. It is, of course, the case that, in acting under Chapter VII of the UN Charter, the Security Council enjoys the power to derogate from or qualify

58  Ibid., 601. 59  Ibid., 603. 60  Ibid., 604.

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the norms of the law of occupation.61 The issues here rather are whether the Council did in fact do so in the case of Iraq, and, if so, to what extent it can displace the law of occupation. The first point requires construing the meaning of Resolution 1483. In its Namibia Advisory Opinion, the International Court of Justice (ICJ) held that: The language of a resolution of the Security Council should be carefully analysed before a conclusion can be made as to its binding effect. In view of the nature of the powers under Article 25, the question whether they have been in fact exercised is to be determined in each case, having regard to the terms of the resolution to be interpreted, the discussion leading to it, the Charter provisions invoked and, in general, all circumstances that might assist in determining the legal consequences of the resolution of the Security Council.62 An interpretation of Resolution 1483 suggests that the CPA enjoyed broad powers to transform post-conflict Iraq.63 In fact, the extent of the authority conferred on the CPA by the Security Council for reforms exceeded the limits established by the law of occupation.64 As explained above, the law of occupation empowers the occupant to alter or replace local laws and institutions if the administration of public life and order requires this. A generous interpretation of the law of occupation may even allow the occupying power to

61  Michael H. Hoffman, ‘Peace-enforcement Actions and Humanitarian Law: Emerging Rules for ‘International Armed Conflict’ (2000) 82 International Review of the Red Cross 193, 198; John Cerone, ‘Minding the Gap: Outlining KFOR Accountability in PostConflict Kosovo’ (2001) 12 European Journal of International Law 469, 483–485; Marten Zwanenburg, Accountability of Peace Support Operations (2005), 191. 62  Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), (Advisory Opinion of 21 June 1971), ICJ Reports 1971, para. 114. 63  Marten Zwanenburg, ‘Existentialism in Iraq: Security Council Resolution 1483 and the Law of Occupation’ (2004) 86 International Review of the Red Cross 745, 766; Thomas D. Grant, ‘Iraq: How to Reconcile Conflicting Obligations of Occupation and Reform’ (2003) ASIL Insight. 64  See, for instance, CPA Order 39 changing the Iraqi investment law in favour of western investors.

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introduce some social reforms.65 However, what occurred in Iraq went well beyond the framework contemplated in the law of occupation.66 The next point concerns to what extent the Security Council was able to derogate from the substantive norms of the law of occupation. In this regard, the Iraqi case is comparable to territorial administrations carried out directly by the UN. It has been observed in previous chapters that, when viewed through the lens of the law of occupation, legislation enacted by UN transitional administrations that sought to liberalise the economy of a post-conflict territory is highly controversial.67 This is also true in respect of the CPA. Indeed, in this author’s view, in Iraq, the Security Council was much more explicit in allowing the imposition of such reforms. Comparing and contrasting the language used in Resolution 1483 and Resolution 1244 (which created the United Nations Mission in Kosovo), it can be seen that Resolution 1483 made much greater reference to economic liberalisation reforms in Iraq. While the Security Council used general language when empowering UNMIK to reconstruct the economy and infrastructure of Kosovo,68 it was more specific in relation to Iraq. For instance, it authorised the establishment of the Development Fund for Iraq, which would be monitored by an international advisory board whose members included representatives from the World Bank and IMF.69 It also called upon international financial institutions and creditors, such as the Paris Club, to contribute to the reconstruction of Iraq and the development of its economy.70 Given its broad mandate, the CPA enacted several controversial regulations in Iraq. CPA Order No. 39, as amended by Order No. 46, replaced Iraq’s existing investment law with a new one that included a number of favourable provisions designed to attract foreign investors. The order allowed foreign companies to participate in a wide range of sectors, and was condemned by many as being more concerned with presenting US corporations with lucrative investment opportunities rather than contributing to the financial well-being of the 65  Allan Gerson, ‘War, Conquered Territory, and Military Occupation in the Contemporary International Legal System’, (1977) 18 Harvard International Law Journal 525, 538–539; Marten Zwanenburg (n. 63), 750. 66  David Scheffer, ‘Beyond occupation law’ (2003) 97 American Journal of International Law 842, 844; Adam Roberts (n. 57), 614. 67  See, for instance, UNMIK Regulation 2001/03 dealing with the issue of foreign investment in Kosovo. 68  Security Council Resolution 1483, para. 11(g). 69  Ibid., para. 12. 70  Ibid., para. 15.

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country.71 Meanwhile, CPA Order No. 74, regulating Iraq’s securities market, recited the desirability of creating ‘a free market economy characterized by sustainable economic growth through the establishment of a dynamic private sector’;72 CPA Order No. 36 dealt with the issue of oil exports, as well as imports of oil into Iraq, and its effective distribution throughout the country;73 and CPA Regulation No. 12 created a Property Claims Commission, whose powers extended as far as being able to order restitution and compensation.74 As mentioned above and in previous chapters, the Security Council has the power to modify the application of the law of occupation, unless doing so would breach a jus cogens norm of international law.75 The ability of a people to control the natural resources of their territory and to decide on their own economic future is normally considered an aspect of the right to selfdetermination76—just such a peremptory norm. In relation to such a norm, any reform seeking a change in the economy of the occupied territory must be left to the local population. Even though the occupying power has the authority and obligation to introduce some changes in the occupied territory for the welfare of the local population, it should not try to change the type and characteristics of the local economy according to its own economic culture. As it is well known, the recent forms of territorial administrations have been set up mostly in Muslim countries by westerners. Hence, the foreign actors ought to be careful when administering the economy of a culturally different society which may not been keen on having a neo-liberal economy. In this light, it is arguable that the CPA’s far-reaching legislation was in violation of the right

71  Carsten Stahn (n. 3), 661; see also Section 6(1) of CPA Order No. 39: “Foreign investment may take place with respect to all economic sectors in Iraq, except that foreign direct and indirect ownership of the natural resources sector involving primary extraction and initial processing remains prohibited. In addition, this Order does not apply to banks and insurance companies.” 72  See Paragraph 8 of the preamble of CPA Order No. 74. 73  CPA Order No. 36 fulfilled this aim by penalising acts inconsistent with the Regulatory Act. In particular, see Sections 2 and 5 of the order. 74  Carsten Stahn (n. 3), 662; CPA Regulation No. 12, Article 6. 75  Alexander Orakhelashvili, ‘The Impact of Peremptory Norms on the Interpretation and Application of United Nations Security Council Resolutions’, (2005) 16 European Journal of International Law 59, 63–67; T. D. Gill, ‘Legal and Some Political Limitations on the Power of the UN Security Council to Exercise its Enforcement Powers under Chapter VII of the Charter’, (1995) 26 Netherland Yearbook of International Law 33, 89. 76  Marco Sassoli, ‘Legislation and Maintenance of Public Order and Civil Life by Occupying Powers’, (2005) 16 European Journal of International Law 661, 672.

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to self-determination,77 and that any economic reforms should have been left until a democratically-elected Iraqi government was truly in power. However, this is not a straightforward issue. Resolution 1483 required the CPA to spend and distribute the funds in the Development Fund for Iraq and Iraqis in consultation with the interim Iraqi administration. Hence, the local authorities also played a part in deciding how these funds were to be spent. However, their role was limited, as the power to make the final decision rested with the CPA.78 What, then, would be the outcome if funds intended to benefit the Iraqi people were spent totally at the discretion of the transitional local administration? In terms of the current world financial system, where western institutions and economic models predominate, it would be naïve to think that the local authorities of a post-conflict territory, grappling with the difficult legacy of a recently-ended war, can realistically refuse to cooperate with, or to participate in, the western neo-liberal economic order. The above discussion clearly shows that the Security Council empowered the CPA to act outside the framework of the law of occupation, and the extent of the power it enjoyed even extended as far as impinging on the Iraqi population’s right to self-determination. But, if the Security Council intended to allow the CPA to make such wide-sweeping reforms to Iraq, why did it bother to require the CPA to respect the law of occupation at all? There are a number of explanations. First, the US was determined that no other actor should be given control of post-war Iraq.79 Second, some members of the Security Council who opposed the war with Iraq did not want to create a UN-supervised civilian administration entity in the postconflict territory,80 as they believed this would indicate approval of what they claimed had been an illegal war. Third, and more importantly, the Security Council may genuinely have been concerned to ensure the protection of the local population. The law of occupation can be said to serve two main purposes: (i) to protect the rights of the displaced sovereign, especially in relation to the administration of the occupied territory; and (ii) to protect the local

77  Carsten Stahn (n. 3), 662; Kaiyan Homi Kaikobad, ‘Problems of Belligerent Occupation: The Scope of Powers Exercised by the Coalition Provisional Authority in Iraq, April/May 2003–June 2004’, (2005) 54 International & Comparative Law Quarterly 253, 255. For a different view, see Michael Kelly, ‘Iraq and the Law of Occupation: New Tests for an Old Law’ (2003) 6 Yearbook of International Humanitarian Law 127, 159–160. 78  Marten Zwanenburg (n. 63), 767. 79  David Scheffer (n. 66), 850. 80  Ibid.

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inhabitants against any abusive act of a foreign force.81 With respect to the former, the CPA was endowed with broad powers to regulate the economic and social life of Iraq. In any event, the occupation of Iraq was belligerent, and the Council may have wished to stipulate that the CPA comply with the law of occupation so as to prevent any maltreatment of the local population. 3.3.4 The Implications for Security Detention As the relevant Security Council resolutions were modelled on the law of occupation, the involvement of the CPA in issues of security detention was similar to that of UN transitional administrations. It used its legislative powers widely to organise security detention processes and policies in Iraq. In view of this, the argument put forward in relation to UN transitional administrations also applies to Iraq. Detaining civilians for reasons of security is a typical means of maintaining public order in a post-conflict environment.82 Notwithstanding the authority provided by Resolution 1483, even the traditional law of occupation allows the occupying power to revoke local laws and transform local institutions in order to ensure public order in the occupied territory. Thus, the CPA was legally entitled to change local laws and mechanisms in order to better deal with security detention issues. However, in doing so, it was not entitled to disregard or disrespect features of Iraq’s culture. In light of this, the CPA’s legislative acts concerning security detainees in Iraq can be examined in two ways, reflecting the two-track system for handling security detentions that was developed. First, the process was managed by MNF outside a judicial context, and second, in the later stages of the administration, there was a tendency to deal with some aspects of security detention under the Iraqi criminal justice system.83 The CPA had an input into both these strategies through the legislative measures it passed. 3.4 The Role of the CPA in the MNF Security Internee Process The CPA devised the legal framework governing MNF’s security detentions. In Memorandum No. 3 the CPA laid down, inter alia, the standards for the MNF security internee process. The CPA enacted Memorandum No. 3 on 27 June 2004, just one day before its disbandment. The adoption of this Memorandum 81  Adam Roberts (n. 57), 602. 82  John Keegan, A History of Warfare (Pimlico, 1993), 57; Kenneth Watkin, ‘Maintaining Law and Order during Occupation: Breaking the Normative Chain’ (2008) 41 Israel Law Review 175, 177; Marco Sassoli (n. 76), 664. 83  Robert M. Chesney, ‘Iraq and the Military Detention Debate: Firsthand Perspectives from the Other War, 2003–2010’ (2011) 51 Virginia Journal of International Law 549, 565.

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was important for MNF because it affirmed the employment of the security internment track even after the end of the occupation phase in Iraq. According to Article 26(A) of the Law of Administration for the State of Iraq for the Transitional Period (TAL), ‘the laws in force in Iraq on 30 June 2004 shall remain in effect unless and until rescinded or amended by the Iraqi Transitional Government in accordance with this Law’. The provisions of Memorandum No. 3 as to security detention would still be in force after the dissolution of the CPA under Article 26(A) of the TAL. Nonetheless, the CPA preferred to revise Memorandum No. 3 so as to provide an explicit framework for later security detentions by MNF.84 Thus, the involvement of the CPA in security detentions undertaken by MNF can be assessed by examining this Memorandum. The CPA modelled the Memorandum on GCIV,85 so the matter can first be scrutinised through the lens of the law of occupation. Memorandum No. 3 contained several provisions relating to procedures to be employed by the detaining authorities. In particular, it prescribed the legal grounds upon which an internment could be undertaken, and set forth the requirements for the review process and treatment of internees. As to the legal ground, Section 6(5) of the Memorandum states that: Security internees who are placed in internment after 30 June 2004, must in all cases only be held for so long as the imperative reasons of security in relation to that internee exist and in any case must be either released from internment or transferred to the Iraqi criminal jurisdiction not later than 18 months from the date of induction into an MNF internment facility.86 This provision is generally in line with Article 78 of GCIV, which allows prolonged internment and assigned residence, in so far as it is necessary for imperative reasons of security. Indeed, this provision providing for referral to the Iraqi criminal justice system could be understood as indicating an intention to deal with emergency situations within the judicial context. However, the exclusion of individuals interned by MNF before 30 June 2004 raises serious problems. In Delalic, the Trial Chamber of the ICTY affirmed the principle that security internment or administrative detention must be invoked as an

84  Ibid., 575. 85  Carsten Stahn (n. 3), 698. 86  CPA Memorandum No. 3, Section 6.

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exceptional measure.87 This principle places a number of obligations on the detaining power. For example, the detaining authorities must explicitly prescribe the legal ground for internment in the security or penal laws of the occupied territory.88 In view of this, the CPA’s failure to define such a legal ground during the period of occupation left internees at the mercy of MNF. With respect to the review process, Section 6(1) and 6(2) of Memoranda No. 3 furnished detainees with the right to request a review in respect of the initial detention decision.89 Section 6(2) enjoined the detaining power to hold the initial review as soon as possible and, in any case, no later than 7 days after the detention had begun. This plainly reflects Article 43(1) of GCIV,90 which stipulates that the initial review must be carried out with the least possible delay. The concrete requirement of 7 days could be seen as an additional safeguard built into the procedure to avoid any abuse of the broad terms of Article 43(1). Section 6(3), on the other hand, caused some concern. It gave internees the right to request an initial review only once they had been held for a period longer than 72 hours.91 In other words, according to Section 6(1), security detainees would not be able to enjoy due process guarantees within 72 hours after induction into an MNF internment facility.92 Section 6(3) regulated the right to periodic review in respect of continued detentions.93 This reflected the provisions of Article 78(2), which obliges the detaining power to review detentions on a regular basis and, if possible, every six months.

87  ICTY, Prosecutor v. Delalic and Others, Judgment of Trial Chamber, 16 November 1998, IT96-21-T, para. 581. 88  Yutaka Arai, The Law of Occupation: Continuity and Change of International Humanitarian Law, and Its Interaction with International Human Rights Law (Martinus Nijhoff Publishers, 2009), 492. 89  CPA Memorandum No. 3, Section 6(1) and Section 6(2). 90  Article 43 of GCIV can be applied by way of analogy to an occupied territory when Article 78 of GCIV does not regulate a specific matter relating to security internment. For a detailed discussion, see Yutaka Arai (n. 85), 496; Centre Universitaire de Droit International Humanitaire, Expert Meeting on the Supervision of the Lawfulness of Detention During Armed Conflict, Geneva, 24–25 July 2004, 14. 91  This provision was intended to enable the Military Intelligence Tactical Questioners to interview internees before procedural safeguards afforded to such internees entered into force. Yutaka Arai (n. 88), 498; Michael Kelly (n. 77), 140. 92  Yutaka Arai, ibid., 498. 93  Section 6(3) states that: “Further reviews of the continued detention of any security internee shall be conducted on a regular basis but in any case not later than six months from the date of induction into an internment facility.”

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However, this provision did not give any details regarding the nature of the review mechanism. Another problem that arose in the context of the review process was the way in which the CPA provided for a role for the Joint Detainee Committee (JDC). This Committee was established by Order No. 99 to advise MNF and the Iraqi Interim Government (IIG) on matters relating to security and criminal detentions by MNF in accordance with applicable legal and human rights standards.94 It was composed of several representatives, including from MNF and the IIG.95 Thus, it was clearly not a judicial body. Section 6(5) of the Memorandum specified that security detainees who had been placed in MNF internment for a period exceeding 18 months be transferred to Iraq’s criminal jurisdiction. Section 6(6) empowered the JDC to make recommendations with regard to extending the internment of those who had been detained by MNF for longer than 18 months.96 The problem here is how a non-judicial body could make a decision with regard to detainees whose cases were supposed to be dealt with under a judicial framework. The JDC was expected to ensure that detentions by MNF were in accordance with human rights standards. If so, to what extent is the insertion of a non-judicial mechanism into a judicial context acceptable under human rights law?97 Such an irregular procedure should have been clarified by the CPA in its Memorandum. As to the treatment of security detainees, Section 6(4) of Memorandum No. 3 states that the ‘operation, condition and standards of any internment facility established by the MNF shall be in accordance with Section IV of the Fourth Geneva Convention’.98 Section IV of GCIV contains a number of detailed provisions on the treatment of internees, and the decision to rely on this corpus of rules was undoubtedly a good one. The Memorandum also granted the Ombudsman and the ICRC access to internees.99 Section IV of GCIV already requires the occupying power to permit the ICRC to visit detainees.100 However, since communication with the outside world is an important safeguard against the mistreatment of detainees, the inclusion of a specific provision on this 94  CPA Order No. 99, Section 1. 95  Ibid., Section 2. 96  CPA Memorandum No. 3, Section 6(6). 97  Article 6(1) of the ECHR and Article 14(1) of the ICCPR requires the cases of detained or arrested persons pending a trial be dealt with in a judicial context. 98  Ibid., Section 6(4). 99  Ibid., Section 6(7) and Section 6(8). 100  Article 143 of GCIV states, inter alia, that: “the delegates of the International Committee of the Red Cross shall have access to all premises occupied by protected persons and shall be able to interview the latter without witnesses, personally or through an interpreter.”

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point was the correct strategy. However, it would have been preferable if a right for internees to receive visits from relatives and legal advisers had also been included in the Memorandum, since there were problems in this respect. For example, the relevant US guidelines did not allow internees to receive these types of visits within first 60 days of their detention.101 In general, the standard of procedural safeguards provide for in Memo­ randum No. 3 was fairly satisfactory when viewed from the perspective of the law of occupation. The main problem was that the Memorandum was not enacted until relatively late, and therefore did not apply during the period of occupation from April 2003 to June 2004. 3.5 The CPA and Judicial Reconstruction in Iraq During the occupation of Iraq, there was also a tendency to deal with security detainees in a criminal context. Individuals arrested by MNF for reasons of security could be transferred to the Iraqi judicial authorities. CPA Order No. 13 provided for the establishment of the Central Criminal Court of Iraq (CCCI).102 In the initial version of Order No. 13, adopted on 22 April 2003, the CCCI did not have jurisdiction over acts of terrorism and insurgency.103 However, it was amended on 22 April 2003, so that such acts were within the CCCI’s competence.104 Attempting to deal with those deemed a threat to peace and security via the criminal justice system seems a sensible means of dealing with insurgents. This suggests that the individuals in question have a greater chance of being dealt with fairly and impartially,105 and hence should be preferable to relying on the rather minimalist provisions of GCIV. However, for such an approach to be successful, there must be a well-functioning judicial system in place.106 In this respect, when discussing the role of the CPA in handling 101  Article 116(1) of GCIV states that “Every internee shall be allowed to receive visitors, especially near relatives, at regular intervals and as frequently as possible”; Carsten Stahn (n. 3), 700; Michael Kelly (n. 77), 140. 102  CPA Order No. 13, (11 July 2003). 103  Robert Chesney (n. 83), 566. 104  In a post-conflict environment, individuals detained on the basis of having been involved in terrorism and insurgency can be viewed as security detainees. 105  Robert Chesney (n. 83), 567; Michael Kelly (n. 74), 143. 106  Indeed, the occupying power is already required to establish a viable judicial system in the occupied territory. As discussed above, this is envisaged in two ways. First, a broad interpretation of Article 43 of the Hague Regulations and Article 64 of GCIV place such an obligation on the occupying power in relation to public order matters. Second, the scope of the obligations of the occupying power vis-à-vis the local population have become greater, and It has been argued that the occupying power should now bear jus post

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security detainees by means of criminal prosecution, it is relevant to consider the legislation that it enacted to overhaul the Iraqi judicial system. Creating a viable judicial system is a long-term project,107 and involves several steps to ensure that internationally-recognised standards are met. As the CPA was in charge of Iraq for a relatively short period, its attempts at judicial reconstruction were consequently limited. The CPA’s main achievement was to address the need for a new judicial system and to take the initiative in creating it. During the occupation period, it became obvious that the old Iraqi judicial system fell far short of the required standards,108 and the CPA tackled this problem by passing a number of orders aimed at creating a new one. The creation of the CCCI was in itself undoubtedly important in restoring Iraq’s collapsed judicial institutions. The CPA also sought to reinforce the CCCI by enacting Order No. 15, establishing a Judicial Review Committee (JRC).109 The JRC was mandated: To remove judges and prosecutors from office, confirm their continued holding of office, appoint replacements for judges and prosecutors removed from office and resolve the claims of judges and prosecutors who assert that they were improperly removed from office.110 Even though the members of the JRC were appointed by the CPA’s administrator, Paul Bremer, the fact that they were nominated by the Senior Advisor and took the final decision in appointing judges and prosecutors can be seen as a positive step, promoting the independence of judiciary.111 bellum responsibilities alongside jus in bello ones derived from the traditional framework of the law of occupation. This is reflected, for example, in paragraph 4 of Security Council Resolution 1483, which called upon the CPA to “promote the welfare of the Iraqi people through the effective administration of the territory, including in particular working towards the restoration of conditions of security and stability and the creation of conditions in which the Iraqi people can freely determine their own political future”. For a more detailed discussion see, Eyal Benvenisti and Guy Keinan, ‘The Occupation of Iraq: A Reassessment’ (2010) 86 International Law Studies 263, 269; Carsten Stahn, Jus ad bellum—Jus in bello . . . Jus post bellum: Towards a Tripartite Conception of Armed Conflict’ (2006) 17 European Journal of International Law 921. 107  John C. Williamson, ‘Establishing Rule of Law in Post-war Iraq: Rebuilding the Justice System’ (2004–2005) 33 Georgia Journal of International and Comparative Law 229, 242. 108  Michael Kelly (n. 77) 143. 109  CPA Order No. 15; Michael Kelly, ibid. 110  CPA Order No. 15, Section 4(1). 111  Ibid., Section 3(1).

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The CPA also amended parts of Iraq’s Penal Code. It suspended capital punishment, and prohibited torture and cruel, degrading or inhumane treatment, as well as all forms of discrimination.112 Memorandum No. 3, establishing and defining criminal procedures; Memorandum No. 2, prescribing standards to be applied in the Iraqi prison system in light of the United Nations Standard Minimum Rules for the Treatment of Prisoners; CPA Order No. 2, dissolving the Revolutionary, Special and National Security Courts; CPA Order No. 98, creating the institution of Ombudsman for penal and detention matters—all demonstrate, in addition to a number of other regulations that were adopted, the serious efforts made by the CPA to reform Iraq’s criminal justice system.113 However, two caveats must be entered. First, it can be said that the changes introduced into the Iraqi judicial system should not conflict with the penal law tradition of the territory. Sassoli argues that the occupying power should not introduce its own criminal justice system into the occupied territory.114 An Anglo-Saxon occupying power, for example, cannot impose an adversarial criminal procedure on an occupied territory if the latter has adopted a RomanGerman penal law system.115 The CPA’s orders and regulations did not change the Iraqi civil-law criminal justice system.116 Second, as well as having regard to the law of occupation, the CPA was also to take into account relevant human rights standards when establishing the new judicial system. As discussed above, Article 43 of the Hague Regulations and Article 64 of GCIV allow the occupying power to change local laws and institutions in the occupied territory only in cases where this is necessary (i) for its own security, (ii) to maintain public order, and (iii) to fulfil its obligations under GCIV. Arai argues that, since human rights can be applied during the period of occupation, the exceptional grounds concerning the need to maintain public life and order and the obligations stemmed from IHL require the occupying power to take positive action to deal with local laws inconsistent with human rights law standards.117 This view is clearly confirmed by the ICJ in the Congo case: 112  CPA Order No. 7. Section 3(1), Section 3(2) and Section 4. 113  A list of all relevant orders enacted by the CPA is available at (last accessed on 7 May 2015). Amnesty International, ‘Iraq: Memorandum on Concerns Relating to Law and Order’ (July 2003) MDE 14/157/2003, 2. 114  Marco Sassoli (n. 76), 677. 115  Ibid. 116  For a more detailed discussion, see, Dan. L. Warnock, ‘The Iraqi Criminal Justice System, an Introduction’ (2010) 39 Denver Journal of International Law and Policy 1. 117  Yutaka Arai (n. 88), 135–136.

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As such it was under an obligation, according to Article 43 of the Hague Regulations of 1907, to take all the measures in its power to restore, and ensure, as far as possible, public order and safety in the occupied area, while respecting, unless absolutely prevented, the laws in force in the DRC [Democratic Republic of Congo]. This obligation comprised the duty to secure respect for the applicable rules of international human rights law and international humanitarian law, to protect the inhabitants of the occupied territory against acts of violence, and not to tolerate such violence by any third party. The Court . . . finds that Uganda’s responsibility is engaged both for any acts of its military that violated international obligations and for any lack of vigilance in preventing violations of human rights and international humanitarian law by other actors present in the occupied territory, including rebel groups acting on their own account.118 However, it is beyond the scope of this project to assess whether the legislation introduced by the CPA described above was actually successful in bringing the Iraqi judicial system in line with international standards. Rather, what is emphasised here is that the CPA was empowered to pass regulations aimed at establishing a well-functioning system in which security detainees could be fairly and properly managed. For example, Order No. 13 established the jurisdiction of the CCCI over acts of terrorism and insurgency, but it did not provide any details as to how this would work in practice. Nor did it make clear what legal standards were to apply to security detainees. Would, for example, individuals captured on the basis of insurgency be treated as criminals? The question whether measures of derogation could be invoked in relation to security detainees in a post-conflict setting, and, if so, to what extent, is also an important issue and worthy of further scrutiny. The MNF’s earlier experience of handing over internees to be dealt with by the Iraqi criminal system resulted in serious problems and misunderstandings on the ground.119 Realising that the Iraqi judicial authorities could not satisfactorily deal with the transferred detainees, the US MNF forces instead adopted an extreme and wholly unjustified practice. Rather than capturing the insurgents and then handing them over to the local authorities, the soldiers 118  Human Rights Committee, Concluding Observations: United Kingdom of Great Britain and Northern Ireland (30 July 2008) UN Doc. CCPR/C/GBR/CO/6, para. 14; The Wall case (n. 54), para. 109; Case Concerning Armed Activities on the Territory of Congo (Democratic Republic of the Congo v. Uganda) [2005] ICJ, paras. 178–179. 119  Robert Chesney (n. 83), 572.

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preferred to shoot them instead.120 Even the option of holding the insurgents under the security internment model was abandoned.121 Such abuses on the part of US forces clearly show the importance of ensuring that a fully-functioning judicial system is in place to deal with such matters, and of clarifying the legal standards that are to apply to security detainees. 4

MNF and Its Policy and Practices of Security Detention

4.1 Overview As explained above, the CPA used its legal powers to transform Iraq in an ad hoc manner, and the legislation it enacted attracted a great deal of criticism. However, the problem should not be conceptualised merely as one of compliance with international law. The challenges that arise from operating in a post-conflict setting should also be taken into account, as fast-changing circumstances and difficult realities on the ground have important implications for the standards that are to be applied by occupying powers and international administrations in their regulatory measures. With regard to security detention issues, the experiences of peace-support forces provide a rich vein of information. MNF was authorised by Security Council Resolution 1511 to contribute to the security and stability in Iraq.122 It was composed mainly of US troops. As part of their mission, US forces detained numerous Iraqi citizens for reasons of security. The diverse experiences of US soldiers in Iraq are very useful as a means of understanding the complexities surrounding detention issues not only in Iraq but also in other post-war environments, such as Kosovo and East Timor. During its operations, MNF derived its authority from various legal sources. In the beginning, it was an occupying power. After the formal termination of occupation, it continued to operate through the authorisation in Resolution 1546. When mandate granted by this resolution expired, the presence of MNF in Iraq was arranged through bilateral agreements between the Iraqi Government and those of the troop contributing nations. Therefore, when examining the vast security detention experience of MNF, this chapter follows this chronological order.

120  Ibid., 573. 121  Ibid., 572. 122  Security Resolution 1511 (n. 6), para. 13.

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The US MNF Security Detention Policy and Practices in the Occupation Phase 4.2.1 The Abu Ghraib: Implications for Security Detention Practices The major event taking place in relation to security detainee cases during the occupation phase concerned what happened in the Abu Ghraib prison facility. In April 2004, it came to public attention that US MNF soldiers had physically, sexually and psychologically abused Iraqi detainees held in Abu Ghraib prison, with some forms of such ill-treatment—arguably—extending to rape and torture. Studying security detention practices in post-conflict environments arguably leads to the conclusion that there are three prominent issues that are relevant to each case: the legal grounds upon which a person can be detained, the nature of the review mechanism in place, and the treatment that should be afforded to detainees according to the standards of international law. What occurred at Abu Ghraib is particularly relevant to the third category. It also demonstrates how vulnerable detainees are to mistreatment at the hands of the occupying power. With the emergence of global terrorism, some states, including the US, have begun to ill-treat or even torture individuals detained for reasons of security with the object of gaining useful information and intelligence. To justify their acts, they then attempted to define the crime of torture narrowly.123 It was claimed that the suffering deliberately inflicted on detainees amounted to cruel, inhuman, or degrading treatment (CIDT) rather than torture, because the former has been less criminalised, and its concept is relative.124 In other words, there has been a tendency to argue that torture 4.2

123  This strategy, for example, was followed by the administration of George W. Bush in relation to the detainees in Iraq, Afghanistan and at Guantanamo. In 2002, Mr. Alberto Gonzales, Counsel to the President of the United States, asked the Office of the Legal Counsel to prepare a legal document setting out the standards employed in detention policies in the context of the so-called “war on terror”. In response to his request, the ‘Torture Memos’, sometimes called the Bybee Memo, was drafted by John Yoo, the Deputy Assistant Attorney General of the United States, and then signed by Jay Bybee, the Assistant Attorney General. In the Torture Memos, torture is, inter alia, in far too restricted a manner: “[F]or an act to constitute torture, it must inflict pain that is difficult to endure. Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.”  The memos are available at (last accessed on 7 May 2015). 124  Manfred Nowak and Elizabeth McArthur, ‘The Distinction between Torture and Cruel, Inhuman or Degrading Treatment’ (2006) 16 Torture 147, 149. Before commencing to

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is committed only in cases where individuals are subjected to grave pain or suffering, and that this may therefore justify less severe forms of coercion for the purpose of extracting helpful information. Bearing in mind that individuals interned for security reasons are very likely to be interrogated for intelligence-gathering purposes, it is clearly important to discuss what amounts to torture and how this differs from CIDT. However, before doing so, it is important to note that not all persons detained by US forces in Abu Ghraib and other detention facilities were security internees. The US forces also held some persons on the ground of alleged criminal conduct. The following discussion focuses solely on the case of security detainees. 4.2.2

The Borderline between the Definition of Torture and Cruel, Inhuman, or Degrading Treatment Torture and CIDT are prohibited under many international instruments, including the ICCPR, the ECHR, the AmCHR, the Universal Declaration of Human Rights, the African Charter on Human and Peoples’ Rights and the Convention against Torture (CAT). However, most of these instruments do not clearly define torture and or specify how it is to be distinguished from CIDT. Article 7 of the ICCPR and Article 3 of the ECHR state that ‘no one shall be subjected to torture or to inhuman or degrading treatment or punishment’. These provisions amount to only a general prohibition, however, and do not explain the distinction between the two. Even the CAT, which contains the most comprehensive definition of torture, and includes a separate provision in regard to CIDT, does not clearly differentiate between the two categories. This lack of clarity and precision in the most relevant international law treaties has, in turn, led to various opinions and interpretations of the matter, and this is particularly evident in the jurisprudence of the UN monitoring bodies, the ECtHR and the now defunct European Commission of Human Rights. The decision of the ECtHR in the case of Ireland v. United Kingdom, which concerned five interrogation techniques to which IRA suspects were discuss the difference between the notion of torture and that of CIDT, it is worth noting that when the jurisprudence of the ECtHR is analysed, the term of CIDT will not be used. Instead, the tripartite formula (torture, inhuman and degrading treatment) adopted by the Strasbourg will be preferred. The underlying reason for adoption of such a formula is that Article 3 of the ECHR is said to have encompassed three related but distinct broad areas of prohibition: torture, inhuman and degrading treatment. For a wider discussion, see, Aisling Reidy, ‘The Prohibition of Torture: A Guide to the Implementation of Article 3 of the European Convention on Human Rights’ (2002), 11.

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subjected, is of paramount importance to any discussion of torture, inhumane and degrading treatment. Having determined that the acts in question did fall within Article 3 of the ECHR, the Court went on to consider whether those acts amounted to torture or inhuman or degrading treatment in light of the severity of the ill-treatment.125 The Court held that: in order to determine whether the five techniques should also be qualified as torture, the Court must have regard to the distinction, embodied in Article 3, between this notion and that of inhuman or degrading treatment. In the Court’s view, this distinction derives principally from a difference in the intensity of the suffering inflicted. Although the five techniques, as applied in combination, undoubtedly amounted to inhuman and degrading treatment . . . they did not occasion suffering of the particular intensity and cruelty implied by the word torture as so understood.126 The Court chose to characterise torture as ‘an aggravated form of inhuman treatment’. Thus, the key criterion in distinguishing torture from inhuman or degrading treatment was ‘the intensity of the suffering inflicted’. This approach was also adopted by the erstwhile European Commission of Human Rights.127 However, in addition to ‘the severity of the pain or suffering’, the Commission also took into account the ‘purpose of the conduct’ when distinguishing torture from inhuman or degrading treatment.128 In Denmark et al. v. Greece, the Commission stated that ‘torture is often used to describe inhuman treatment, which has a purpose, such as the obtaining of information or confessions, or the infliction of punishment, and it is generally an aggravated form of inhuman treatment’.129 The differing views taken by the Court and the Commission suggest a need to elaborate on the various elements of the definition of torture, and what implications this has in relation to inhuman and degrading treatment. In particular, the connection between the ‘severity of the conduct’ and 125  See the Factsheet issued by London-based Prisoners Abroad: ‘Torture, Cruel, Inhuman or Degrading Treatment’ (2011), 114. 126  Ireland v. United Kingdom (Series A, No. 25) (18 January 1978) ECHR, para. 167. 127  Christian M. De Vos, ‘Mind the Gap: Purpose, Pain, and the Difference between Torture and Inhuman Treatment’ (2007) 14 Human Rights Brief 4, 4–5; Pieter Van Dijk and Fried Van Hoof, Theory and Practice of the European Convention on Human Rights (Kluwer Law International, 1998), 314. 128  Christian M. De Vos, ibid. 129  Ibid.; Denmark et al. v. Greece, 12 Yearbook of the European Convention on Human Rights 168 (1969).

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other features characteristic of torture must be analysed. The regulatory work of the UN bodies on this matter represents a useful source. The UN General Assembly issued the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in 1975. The Declaration was heavily influenced by the European Commission’s understanding of torture.130 Article 1(2) of the Declaration explicitly defines torture as ‘an aggravated and deliberate form of CIDT or punishment’. Subsequently, the General Assembly asked the UN Commission on Human Rights (later replaced by the Council on Human Rights) to draft a new convention. The Working Group assigned for this purpose prepared the CAT, which was then adopted by the General Assembly. Article 1 of the CAT, which describes what constitutes torture, did not follow the approach taken by the 1975 Declaration. Instead, it states that: for the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. As can be seen from this paragraph, Article 1 of the CAT lists a number of factors that are instrumental to the crime of torture. Unlike its counterparts in other international or regional treaties, this provision does not refer to CIDT when defining torture. Article 16 of the CAT specifically deals with CIDT, and enjoins each State Party to prevent acts of CIDT being perpetrated within its jurisdiction. The specific inclusion of ‘the duty to prevent’ was important in order to make clear that parties to the Convention were obliged to take action to eliminate all forms of ill-treatment, not simply that which amounted to torture. For example, the CAT requires member states to criminalise and prosecute acts of torture,131 and, although the same requirement is not imposed in

130  Christian M. De Vos (n. 127), 5. 131  Manfred Nowak & Elizabeth McArthur (n. 124), 148. Also see Articles 6–15 of the CAT, which impose several obligations on member states in respect of the crime of torture.

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respect of CIDT, Article 16 does at least makes clear that member states are not permitted to simply ignore this issue. Article 1 of the CAT also refrains from defining torture as ‘an aggravated form of CIDT or punishment’.132 While distinguishing torture from CIDT, it does not accept the ‘severity of the pain or suffering’ as the only relevant factor. It also takes into account ‘intent’ and ‘purpose’ as other necessary elements of torture. According to Article 1, if physical or mental pain or suffering is intentionally inflicted on a detained or confined person at the instigation of a public official for the purpose of (i) extracting a confession, (ii) obtaining information from the victim or a third person, (iii) punishment, (iv) discrimination, or (v) intimidation and coercion, then it can be argued that the ill-treatment amounts to torture. This view has found support in the relevant legal literature as well as in the opinions of regional and international judicial bodies. The former UN Special Rapporteur on Torture, Manfred Nowak, argues that the infliction of severe pain or suffering cannot alone be the decisive criterion in determining the borderline between torture and CIDT. Both of these crimes involve the perpetration of an extremely serious act. However, an instance of CIDT becomes torture only if it meets the additional requirements laid down in Article 1.133 In a similar vein, De Vos attaches considerable importance to the element of ‘purpose’ triggering coercive measures.134 The Human Rights Committee has taken a similar approach. In Dragan Dimitrijevic v. Serbia and Montenegro, in which the applicant was severely beaten while in police custody, the Committee decided that the ill-treatment did amount to torture because if had been imposed for the purpose of investigating a crime.135 Perhaps the most notable endorsement of this definition of torture has emanated from the ECtHR. After having for many years prioritised the ‘severity of the conduct’ as the most important factor in determining whether an act or acts of ill-treatment constituted torture, the European Court altered its approach. In the case of Keenan v. United Kingdom, the Court held that: While it is true that the severity of suffering, physical or mental, attributable to a particular measure has been a significant consideration in many 132  Christian M. De Vos (n. 127), 5. 133  Manfred Nowak, ‘What Practices Constitute Torture’ (2006) 28 Human Rights Quarterly 809, 822. 134  Christian M. De Vos (n. 127), 8. 135  Dragan Dimitrijevic v. Serbia and Montenegro Communication No. 207/2002, U.N. Doc. CAT/C/33/D/207/2002 (2004), Section 5(3).

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of the cases decided . . . under Article 3, there are circumstances where proof of the actual effect on the person may not be a major factor. For example, in respect of a person deprived of his liberty, recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3.136 The ECtHR has applied the ‘purposive test’137 in several other cases. In Salman v. Turkey, the Court deemed the ill-treatment to which the applicant’s husband had been subjected to be torture. In the Court’s view, had the suffering been inflicted without the purpose of extracting information or confession, then it would only have amounted to inhuman or degrading treatment.138 In the case of Aydin v. Turkey, the Court found that the rape of a female detainee amounted to torture because the act in question had been perpetrated by an agent of the State in order to extract information or a confession.139 Although there is an increasing tendency to regard the purpose for which the ill-treatment is inflicted as an important factor in distinguishing torture from CIDT, this is not to suggest that acts of CIDT are committed without a purpose. Acts of CIDT also involve a purposive element. However, the context in which CIDT takes place is the decisive criterion in deciding whether the suffering in question has become torture. In other words, the fact that a person may be intentionally subjected to suffering or pain for some specific purpose may still result in that suffering being classified as CIDT rather than torture owing to the context in which the ill-treatment has been inflicted. So to summarise the distinction between CIDT and torture, if a person is subjected to severe suffering for the purposes listed in Article 1 of the CAT, the act can then be regarded as one of torture. If the violation does not involve a purposive element, then it will amount only to CIDT. The distinction between torture and CIDT should not be understood solely in terms of the intensity of the suffering inflicted. As mentioned above, some states have been eager to define the requisite level of suffering in a highly restrictive manner, in order to reclassify their abhorrent practices as CIDT rather than torture, since international obligations in respect of the former category are much less onerous. In response to this attempt to abuse the legal loophole created by uncertainty as to the difference between torture and CIDT, it can be said that 136  Keenan v. The United Kingdom, (App. No. 27229/95) (2001) ECHR, para. 112. 137  Christian M. De Vos (n. 127), 7. 138  Salman v. Turkey (App. No. 21986/93) (27 June 2000) ECHR, para. 114. 139  Suheyla Aydin v. Turkey (App. No. 25660/94) (24 May 2005) ECHR, para. 195.

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the threshold of suffering must be set at a lower level. This view draws support from the ECtHR. In Selmouni v. United Kingdom, the Court held that: Having regard to the fact that the Convention is a “living instrument which must be interpreted in the light of present day conditions” . . . the Court considers that certain acts which were classified in the past as “inhuman and degrading treatment” as opposed to “torture” could be classified differently in the future. It takes the view that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies.140 4.2.3 Application of the Standards of Torture and CIDT to Abuses in Iraq Returning to the case of Iraq, it can be argued that the ill-treatment happening at Abu Ghraib amounted to torture. Having received serious complaints and allegations of torture and mistreatment, the US authorities were forced to set up committees to conduct investigations. The then US Defence Secretary, Donald Rumsfeld, assigned the Independent Panel to Review Department of Defense Detention Policies to examine the allegations. In its Report, the Panel stated that it had found evidence of widespread and grave violations.141 Even though the Panel depicted the offences as ‘purposeless’ acts, the fact that some of the abuse took place during interrogation sessions bolstered claims that the acts in question amounted to torture. This interpretation is also supported by the findings of another investigating body, which pointed to a catalogue of offences that had taken place. On 19 January 2004, the Senior US Commander in Iraq appointed the US Central Command to investigate allegations of torture at the Abu Ghraib internment facility. A report was drafted on 26 February, but it became available to the public only after pictures had been leaked showing the brutality that had occurred at Abu Ghraib.142 The Report concludes, amongst other matters, that several offences had been carried out, including: Physical abuse, videotaping and photographing naked male and female detainees, posing detainees in various sexually explicit positions for 140  Selmouni v. France, (App. No. 258003/94) (1999) ECHR, para. 155. 141  A copy of the report is available at (last accessed on 7 May 2015). 142  Leila Nadya Sadat, ‘International Legal Issues Surrounding the Mistreatment of Iraqi Detainees by American Forces’ (2004) ASIL Insight, 1.

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photographing, forcing detainees to remove their clothing and remain naked for several days at a time, a male MP guard having sex with a female detainee and using military working dogs, without muzzles, to intimidate and frighten detainees, and in at least one case biting and severely injuring a detainee.143 It is not tenable to regard aforementioned abuse as amounting to CIDT only, because similar forms of ill-treatment have already been classified as torture—for example, as mentioned above, the rape and sexual abuse of a female detainee has already been found to constitute torture.144 4.2.4 The Implications for Cases of Security Detention Critically examining the definition of torture in the context of Iraq may also have some significant implications for security detention issues in a postconflict environment. It demonstrates that the treatment of detainees is an extremely sensitive issue—and if, as is often likely, the relationship between the occupying forces and the local population is hostile, then this can have a negative impact on the detaining policies of the occupier. For this reason, the link between any form of intentional mistreatment of detainees and CIDT should be scrutinised closely. For example, the conditions of the internment facility itself may in some circumstances amount to CIDT.145 The ECtHR has asserted that prison conditions must not violate the obligation to respect human dignity.146 In Peers v. Greece, the European Court found that the failure to improve conditions of imprisonment constituted degrading treatment.147 The Inter-American Court of Human Rights has taken a similar stance: it held that poor prison conditions can be viewed as breaching the inherent dignity and moral integrity of prisoners, and that this constitutes CIDT.148 GCIV also attaches considerable importance to the conditions of the place where a per-

143  Ibid. Also see the Report, 17–18, at (last accessed on 7 May 2015). 144  See Aydin v. Turkey (n. 139), para. 195. For a similar discussion see Andreas Fischer-Lescano, ‘Torture in Abu-Ghraib: The Complaint against Donald Rumsfeld under the German Code of Crimes against International Law’ (2005) 6 German Law Journal 689, 692; Marcy Strauss, ‘The Lessons of Abu Ghraib’ (2005) 66 Ohio State Law Journal 1269, 1274. 145  The Prisoners Abroad Factsheet (n. 125), 7. 146  Poltoratskiy v Ukraine (App. No. 38812/97) (29 April 2003) ECHR, para. 132. 147  Peers v. Greece (App. No. 28524/95) (19 April 2001) ECHR, paras. 74–75. 148  Cantoral Benavides v Peru, Judgment, Inter-American Court of Human Rights Series C No. 69 (18 August 2000), para. 8.

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son is detained, and includes a number of specific rules that impose several positive obligations on the occupying power vis-à-vis interned persons.149 In addition to ensuring that the conditions of the place of internment are adequate, another important aspect in relation to security detentions is that detainees must be given the opportunity to challenge the legality of their detention. The absence of effective review mechanisms may lead to the illtreatment of detainees. Thus, it can be said that, in cases where CIDT or torture is alleged to have been committed, it is likely that no effective review mechanism exists, even though the failure to provide such a mechanism does not in itself amount to torture or CIDT. The US MNF Detention Policy and Practices in the Mandate Phase ( July 2004–December 2008) During the occupation period, in spite of making some use of the criminal justice system to deal with security detainees, the occupying forces in Iraq mostly relied on the security internment model set out in GCIV.150 However, when the occupation was formally terminated in June 2004, it was no longer possible to rely on GCIV, even though it was still necessary to detain individuals for imperative reasons of security. This problem was dealt with in Security Council Resolution 1546.151 The resolution states, inter alia, that ‘the multinational force shall have the authority to take all necessary measures to contribute to the maintenance of security and stability in Iraq’.152 The US authorities broadly interpreted the term ‘all necessary measures’ as sanctioning the continued use of security detention, and also pointed to the letters annexed to the resolution as expressly authorising this practice153 In particular, the letter from the US Secretary of State Colin Powell empowered the MNF-I to undertake ‘internment where this is necessary for imperative reasons of security’.154 4.3

149  See Articles 83–92 of GCIV. 150   For a detailed discussion of the occupation phase, see Michael N. Schmitt and Charles H. B. Garraway, ‘Occupation Policy in Iraq and International Law’ (2004) 9 International Peacekeeping: The Yearbook of International Peace Operations 27. 151  The mandate granted by this resolution was then extended in Security Council Resolutions 1637, 1723 and 1790. 152  See Paragraph 10 of the resolution. 153  Andru E. Wall, ‘Civilian Detentions in Iraq’ in Michael Schmitt and Jelena Pejic (eds.) International Law and Armed Conflict: Exploring the Faultlines (Martinus Nijhoff Publishers, 2007), 429. 154  See the letter of US Secretary of State Colin Powell annexed to Resolution 1546.

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As another ground entitling them to detain individuals for imperative reasons of security, the US authorities relied on the relevant CPA regulations.155 As discussed above, shortly before its dissolution, the CPA amended Memorandum No. 3, which reaffirmed the continued use of security detention, even in the post-occupation phase.156 Armed with this authority, the US forces’ detention policy during the mandate phase consisted of both undertaking security detentions and transferring detainees to the Iraqi authorities for criminal prosecution. Its practices in regard to both these approaches have significant implications for law and policy-making in a post-conflict environment. Although it was not formally applicable during the mandate phase, the US forces relied on Article 78 of GCIV by analogy.157 Consequently, security detention practices during this period can be assessed by reference to its provisions. The first issue that needs to be addressed is what use US forces made of the broad powers vested in them by the relevant Security Council resolutions i.e. did they exercise that power in an arbitrary manner? In contrast to human rights treaties such as the ECHR, GCIV does not specify the legal grounds upon which a detention for security purposes can be imposed. It is left to the discretion of the detaining authorities to determine whether it is necessary to detain an individual in order to maintain security in the occupied territory. Having said this, internment or administrative detention must be resorted to only as an exceptional measure.158 As Pejic argues, security detention cannot be used as a means of gathering intelligence.159 In Iraq, assessing whether an individual should be detained for security purposes was made using ‘a detention eligibility screening process’.160 In particular, the process included an evaluation before, or at the time of, internment and a later one shortly after the detained person was taken into US custody. During ‘the pre-capture screening or screening at the point of capture’, the US forces applied ‘a probable cause’ test when deciding whether a security detention was 155  Robert M. Chesney, ‘Iraq and the Military Detention Debate: Firsthand Perspectives from the Other War, 2003–2010’ (n. 83), 575. 156  See Section 6 of the memorandum. 157  Brian J. Bill, ‘Detention Operations in Iraq: A View from the Ground’ in Raul A. Pedrozo (eds.), International Law Studies, The War in Iraq: A Legal Analysis (2010), 420. 158  Yutaka Arai (n. 85), 491; ICTY, Prosecutor v. Delalic and Others, Judgment of Trial Chamber (n. 84), para. 581. 159   Jelena Pejic, ‘Procedural Principles and Safeguards for Internment/Administrative Detention in Armed Conflict and Other Situations of Violence’ in L. Maybee and B. Chakka (eds.), Custom as a Source of International Humanitarian Law (2006), 380. 160  This term is used by Chesney (n. 83), 579.

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necessary.161 However, this test is inherently vague, and can therefore be construed in broad terms by the detaining authorities, as the actions of US soldiers demonstrated.162 Whether it was planned or simply decided on at the point of capture, US forces frequently used internment for the purpose of intelligencegathering. Chesney notes that, rather than undertaking the complicated task of assessing whether a person had in fact committed a criminal act, US troops instead preferred to take the easier step of interning him or her for reasons of security.163 Moreover, some persons were detained merely because they had been identified as ‘bad’ by their neighbours, or as a result of ‘a general sweep of an area’.164 This lax approach to screening at the time of capture was then extended to the post-capture screening process. After the detainee had been brought to a detention facility, the need to intern that person would be re-considered: i.e. whether the person really needed to be detained for reasons of security would be re-assessed. Post-capture screening policies varied from unit to unit, with each applying different standards when deciding whether to continue to hold or release an individual.165 For example, one unit relied heavily on information from the brigade’s intelligence officer, whereas another preferred to set up formal review mechanisms chaired by the unit’s commanding officer.166 Some units even found it unnecessary to conduct this initial review, as they believed that it would simply duplicate the review that would be carried out once the detainee was sent to a long-term detention facility.167 In any case, the postcapture screening had to be conducted within 14 days of the arrest.168 One soldier stated that, in practice, some units deliberately waited until the end of this period in order to conduct interrogations and gather intelligence.169 If these two earlier stages of screening led to the conclusion that it was necessary to detain the individual concerned for security reasons, then that person would be transferred to a long-term Theatre Internment Facility (TIF). At this stage, there were a number of bodies that participated in the periodic review 161  Ibid., 578; Andru E. Wall, ‘Prosecuting Insurgents and Terrorists in Iraq’ (2006) 36 Israel Yearbook on Human Rights 181, 191. 162  Robert Chesney (n. 83), ibid. 163  Ibid., 579. 164  Ibid. 165  Ibid., 581. 166  Ibid., 582. 167  Ibid. 168  Ibid., 582; Brian J. Bill (n. 157), 422. 169  Robert M. Chesney (n. 83), 582.

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of detentions, and these institutions also had the power to decide whether an individual should be subject to criminal prosecution instead of being detained for reasons of security.170 The first type of screening that detainees underwent after arriving at a TIF was the ‘magistrate cell review’ (MCR).171 The MCR had to be carried out within the first 7 days of a detainee being transferred to the TIF.172 The reviewing officers would assess whether there was sufficient evidence to initiate a criminal prosecution, or whether instead to continue the security detention. In practice, as noted by Chesney, the officers made liberal use of the CCCI criminal prosecution track,173 with the use of this option increasing by 15 to 20 per cent.174 However, this was lower than the rate at which security detentions were continued. Furthermore, the review process was an ex parte proceeding, conducted by examining materials and information in the case file of the detainee. Detainees were not able to participate in the process until a decision had been made to extend their detention. At this stage, they were permitted to write a letter in their defence, although they were not given access to the material in their files.175 On the other hand, if MCR members concluded that a detainee should no longer be held for reasons of security, then they would invite the capturing unit to submit additional information or evidence. Ultimately, the officers could decide whether to continue the detention or to release the detainee. If they decided to release the individual, that judgment was final.176 Another form of review carried out at the TIF was the Combined Review and Release Boards (CRRB).177 The CRRB performed a dual role. First, it heard appeals from detainees whose security detentions had been extended by MCR officers, with detainees having 90 days to appeal the MCR decision.178 Second, irrespective of the outcome of this appeal procedure, the CRRB could review long-term detentions every six months.179 The CRRB was also ex parte. However, in contrast to the MCR, this review was carried out by a mixed board, 170  Ibid., 583. 171  Ibid., 584; Andru Wall ‘Prosecuting Insurgents and Terrorists in Iraq’ (n. 161), 191. 172  Robert Chesney, ibid.; Brian J. Bill (n. 157), 425. 173  Robert Chesney, ibid. 174  Brian J. Bill (n. 157), 426. 175  Robert Chesney, 584; Brian J. Bill, ibid. 176  Brian J. Bill, ibid. 177  Andru E. Wall, ‘Civilian Detentions in Iraq’ (n. 153), 434. 178  Brian J. Bill (n. 157), 426. 179  Robert M. Chesney (n. 80), 585.

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composed of both US and Iraqi members.180 The decisions were arrived at by a voting procedure.181 After evaluating the information before them, the CRRB would assemble and vote for either the continued detention of the detainee or the release of him or her.182 The CRRB operated until August 2007. The adverse security conditions during this period prompted US officials to re-shape their detention policies. Four years on from the invasion, US forces were still struggling to establish security and stability in Iraq. The activities of insurgents were proving increasingly disruptive, and instead of implementing a harsh counterinsurgency strategy, the US preferred instead to strengthen its adherence to the rule of law in order to enhance the credibility and legitimacy of its operation. It made efforts to shore up Iraqi institutions,183 and also overhauled its security internment policies with the aim of meeting a higher legal standard. A new reviewing body, the Multi-National Force Review Committee (MNFRC), was set up.184 The MNFRC took over the task of undertaking twiceyearly reviews from the CRRB. For the first time, detainees were given the opportunity to defend themselves, by appearing in person before the MNFRC.185 The main task of this new body, like that of the other reviewing mechanisms, was to determine whether a person should continue to be detained, should be released, or transferred to the Iraqi authorities for criminal prosecution.186 Since the objective of this new strategy was to ‘win hearts and minds’, the MNFRC process resulted in a higher number of detainees being released or referred for prosecution by the CCCI. Decisions that found that continued detention was no longer necessary reached a rate of 40 percent.187 In pursuit of this new strategy, US forces also increased their cooperation with Iraq’s criminal justice institutions. In addition to a greater number of detainees being transferred to the CCCI by the MNFRC, efforts were also made to make the criminal prosecution process more effective—for example, US forces provided additional information to the Iraqi authorities to aid criminal

180  Brian J. Bill (n. 157), 427. 181  Ibid. 182  Robert Chesney (n. 83), 586. 183  Ibid., 587. 184  Ibid., 588; Brian J. Bill (n. 157), 428. 185  Brian J. Bill, ibid. 186  Ibid., 429. 187  Ibid., 432; Robert Chesney (n. 83), 589.

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prosecutions, and also helped witnesses to travel to hearings.188 An attempt was also made to enhance the law-enforcement capacity of US troops, with the US Justice Department establishing a Law and Order Task Force to assist with prosecutions. Ultimately, this enhanced collaboration between US forces and the Iraqi authorities resulted in a 60 per cent conviction rate.189 This, in turn, changed the perceptions of US soldiers on the ground. During the initial stages of the operation, the troops were distrustful of judgments handed down by Iraqi institutions. However, after they had seen how the CCCI criminal prosecution process could in fact function well and effectively with their cooperation, they developed increasing faith in, and loyalty to, this new strategy.190 This positive transformation in the attitude of US soldiers has important implications for security detention practices in a post-conflict environment. The experiences of foreign-run transitional administrations show that it can take a long time before local institutions are in a position to deal properly with law and order issues. Hence, the involvement of foreign troops is almost inevitable. However, because of concerns about the credibility and legitimacy of such missions, these tasks cannot simply be left to international actors. Instead, it would seem that the most successful strategy relies on a close partnership between the foreign actors and the local authorities in the occupied territory, as was evident in Iraq towards the end of the mandate phase. At this stage, many US soldiers realised that the host nation’s criminal prosecution system could offer a viable alternative to interning civilians in a highly subjective manner on the basis of the wide authority contained in Security Council resolutions. For this reason, they paid greater attention to the collection of evidence when capturing suspected insurgents and compiling comprehensive case files, so as to enable the Iraqi authorities to deal with the alleged offences more effectively.191 The US MNF Security Detention Policy and Practices in the PostMandate Phase Following the expiration of the relevant Security Council resolutions, US forces have continued to remain in Iraq on the authority provided in bilateral agreements signed with the Republic of Iraq. The Security Agreement 4.4

188  Robert Chesney, ibid., 590; Brian J. Bill, ibid., 429. 189  Robert Chesney, ibid. 190  Robert Chesney, ibid., 591; Brian J. Bill, ibid., 433. 191  Robert Chesney, ibid., 593 and 594; Andru E. Wall, ‘Prosecuting Insurgents and Terrorists in Iraq’ (n. 161), 203.

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came into force 1 January 2009, and deals with several matters. Article 22 of the Agreement deals with the issue of detention. Paragraphs 1 and 2 of this provision read as follows: No detention or arrest may be carried out by the United States Forces (except with respect to detention or arrest of members of the United States Forces and of the civilian component) except through an Iraqi decision issued in accordance with Iraqi law and pursuant to Article 4. In the event the United States Forces detain or arrest persons as authorized by this Agreement or Iraqi law, such persons must be handed over to competent Iraqi authorities within 24 hours from the time of their detention or arrest.192 Having enjoyed an extremely broad mandate to detain individuals solely for reasons of security under GCIV, and then under the regime of Security Council resolutions, US forces were forced to modify their detention policy in order to comply with Article 22, which clearly outlawed security internments after the adoption of the Agreement.193 As result, during this phase of the operation, US forces concentrated their efforts on assisting the CCCI with criminal prosecutions.194 Such cooperation with the Iraqi authorities had already been initiated during the mandate stage, owing to a change in strategic priorities. However, after the Security Agreement came into force, this support became more institutionalised and organised. New types of law-enforcement methods and entities were introduced into US brigades involved in helping with the criminal prosecutions: for example, the Prosecution Task Force was established to ‘coordinate prosecution-based targeting’ by US forces.195 Article 22 also dealt with the situation of security internees that were still being held by US forces when the Agreement was signed. Thousands of civilians were still being detained in different US detention facilities. According to Paragraph 4 of Article 22: Upon entry into force of this Agreement, the United States Forces shall provide to the Government of Iraq available information on all detainees 192  The Security Agreement is available at (last accessed on 7 May 2015). 193  Robert M. Chesney (n. 83), 597. 194  Ibid., 601. 195  Ibid., 607.

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who are being held by them. Competent Iraqi authorities shall issue arrest warrants for persons who are wanted by them. The United States Forces shall act in full and effective coordination with the Government of Iraq to turn over custody of such wanted detainees to Iraqi authorities pursuant to a valid Iraqi arrest warrant and shall release all the remaining detainees in a safe and orderly manner, unless otherwise requested by the Government of Iraq and in accordance with Article 4 of this Agreement.196 Following the adoption of the Security Agreement, US forces immediately began to consider whether those detained should continue to be held or released. The number of individuals detained for security reasons began to fall rapidly. Ultimately, 200 individuals alleged to have been linked to Al-Qaeda remained in detention. Although these detainees did not become the subject of dispute with Iraqi authorities, as a valid arrest warrant had not been issued by competent authorities, Chesney argues that US forces nevertheless had some leeway in the matter, as Article 22(4) did not require US forces to release or transfer detainees within a specified time-scale. He defines the situation as a ‘de facto security internment regime’, and uses the same expression in relation to detainees who were transferred to the Iraqi authorities but did not receive a proper trial for some time. 5

Conclusion: Lessons Learned from Iraq

The case of Iraq offers important lessons for security detention practices in a post-conflict environment. There are a number of problems endemic to transitional administrations, including ongoing instability and the absence of a functioning criminal justice system to process individuals who are arrested. These difficulties on the ground have a considerable impact on policy-making and legislation. The US experience of detaining tens of thousands of Iraqi civilians for reasons of security provides a good illustration of the dynamic relationship between attempting to understand the nature of the problem at hand and formulating a proper response.197 The US detention policy in Iraq was based on a twin strategy of security internment and supporting the CCCI prosecution system, and each model was used to a varying extent. Detention policies were flexible, so as to deal with constantly changing security circumstances.

196  See the Agreement (n. 192). 197  Robert Chesney (n. 83), 635.

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The Iraqi situation also revealed how susceptible security detainees may be to abusive conduct at the hands of foreign forces. The Security environment in each territorial administration may not be the same. In some cases, while the foreign forces may be welcome by local populations, in others there might be a serious confrontation between the administering actors and the administered people. The case of Iraq is a good illustration of such factual situation. Comparing Iraq with Kosovo and East Timor, it can be seen that MNF faced much greater opposition from the local population. The problem of insurgency was considerable. The hostility between the local population and the foreign entities, in turn, may have a significant impact on adoption of harsh detention policies. For instance, facing a serious armed resistance from some groups of Iraqis, MNF adopted stringent practices of security detention. The relevant experience on the ground clearly suggests that in such an environment, the treatment of detainees will be at stake. As demonstrated by the Abu Ghraib atrocities, foreign forces may flout or disregard legal standards altogether and treat detainees in a brutal manner. For that reason, the foreign actors must be diligent in following the pertinent standards of GCIV, concerning the treatment of detainees and the procedural safeguards to be made available to them. Furthermore, it ought to be noted that, the heinous acts of torture and inhumane and degrading treatment, as well as being wrong and inhuman in themselves, are counterproductive,198 undermining the legitimacy and credibility of the international mission in the eyes of the local population. In contrast, as the later practices of US forces demonstrate, adhering to the rule of law and collaborating with local institutions in dealing with security issues produced much more effective results. In addition to the above, taking measures to strengthen criminal justice institutions is also important. In Iraq, the CPA was endowed with immense powers to change local laws and institutions in Iraq. Whether satisfactory or not, it did try to improve the standards of the Iraqi judiciary. However, construction of new judiciary from ground up is not so easy. It is a long term project requiring financial and even human resources. For example, the lack of qualified and experienced staff is a big problem in rebuilding judiciary in a post-conflict territory. Thus, the training of local judges and prosecutors, including teaching international human rights standards to them, is an important issue. Reconstruction of new judiciary is also germane to the transformation of post-conflict territories. Most of the recent situations of occupation of territorial administrations have been transformative in nature. Rebuilding judiciary 198   See a list of statements from experts at (last accessed on 7 May 2015).

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and other local institutions of the occupied/administered territory and changing the relevant local laws accordingly have been a part of such transformation projects. However, the extent to which the foreign actors had the right to transform certain institutions so dramatically is questionable. Especially, their regulations on economic and investment matters raised serious concerns. Hence, in future cases, the Security Council ought to be much more precise in setting limits on the authority given to foreign actors charged with administering a post-conflict territory.

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Conclusion 1 Overview This book has explored the application of international law to security detention practices undertaken during the international territorial administrations of Kosovo, East Timor and Iraq. Not long after these missions began, it became apparent that a lack of clarity and certainty in the detention practices and policies of the international actors deployed in these territories was seriously affecting the lives of the local inhabitants. However, international law has not in itself been sufficient to deal with the problems that have arisen in this context, since it does not include rules that are specifically designed for international territorial administrations or military missions authorised by the Security Council, nor are the rules that are of some relevance unproblematic in their application. This book has argued that clarifying the application of international law to security detention practices in a post-conflict environment requires tackling several complex issues in order to deal with two main research questions: (i) how international law could be applied to actors charged with the postconflict administrations of Kosovo, East Timor and Iraq? and (ii) what level of legal protection should be afforded to security detainees in a post-conflict setting, particularly as regards human rights standard, and, more specifically, the right to liberty? The book then has drawn a number of conclusions in regard to the topics examined. 2

Apportionment of Responsibility in UN Peace-Support Operations

One of the main difficulties to be resolved in respect of security missions in post-conflict territories is how responsibility is to be allocated between the United Nations, its member states and other international organisations. The military operations conducted under the auspices of the Security Council involve complicated structural and diplomatic arrangements, and the Behrami and Saramati decisions of the ECtHR, and the Al-Jedda judgments of the UK

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House of Lords and ECtHR, represent landmark decisions dealing with the apportionment of responsibility in UN-authorised security missions.1 The troubling reasoning employed by the ECtHR in Behrami and Saramati has been widely censured. In particular, the Strasbourg Court has been criticised for applying the wrong test in determining where responsibility lay for the acts and omissions of military forces operating under a Chapter VII mandate in Kosovo.2 Although the theory of delegation propounded by Sarooshi3 is certainly compelling, it is not the test that the Court should have adopted:4 rather, the Court should have relied on DARIOs. Having said this, applying DARIOs in practice is not a straightforward matter. DARIOs could certainly have been of help in identifying the relationship that obtained between the UN and NATO, to which the Security Council passed operational command and control in Kosovo. According to Draft Article 7,5 since the Security Council did not exercise ‘effective control’ over the NATO operation in Kosovo, the alleged violation that occurred in Kosovo could not have been imputed to the UN. The following issue that ought to be dealt with was the apportionment of responsibility between NATO and the states that contributed troops to its military missions. However, that was not easy, as the nature of the relationship that existed between these actors was complicated, which raised the issue of dual/multiple attribution of conduct and responsibility. International law does not provide a clear framework for dealing with issues of dual/multiple attribution and responsibility in the context of multilateral military operations. Nor do DARIOs offer any coherent guidance on this 1  Behrami v. France, Saramati v. France, Germany and Norway (App No. 71412/01 & 78166/01) ECHR 2 May 2007. (Hereinafter Behrami and Saramati.) Al-Jedda v. United Kingdom (App No. 27021/08) ECHR 07 July 2011; R (on the application of Al-Jedda) v. Secretary of State for Defence (2007) UKHL 58. 2  Marko Milanovic and Tatjana Papic, ‘As Bad as It Gets: The European Court of Human Rights’ Behrami and Saramati Decision and General International Law’ (2009) 58 International and Comparative Law Quarterly 267. 3  Dan Sarooshi, The United Nations and the Development of Collective Security: The Delegation by the UN Security Council of its Chapter VII Powers (Oxford: Oxford University Press, 2000). 4  Keir Starmer, ‘Responsibility for Troops Abroad: UN Mandated Forces and Issues of Human Rights Accountability’ (2008) 13 European Human Rights Law Review 318. 5  ILC Report on its 63rd Session (26 April to 3 June and 4 July to 12 August 2011) UN Doc. A/66/10, Article 7. This provision reads as follows: “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.”

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matter. The “effective control” criterion set out in Draft Article 7 can be seen as the proper basis for such attribution, since the Special Rapporteur discussed issues of dual/multiple responsibility in his commentary on this provision.6 However, the meaning of ‘effective control’—and, in particular, how two or more actors can simultaneously exercise control over the same conduct, raises difficult questions. In Kosovo, the operational command and control rested with NATO. On the other hand, states contributing troops to the NATO mission retained jurisdiction over their forces in relation to criminal and disciplinary matters. National commanders could disobey the order of the KFOR commander (COMKFOR) if they deemed it to be in the interests of their respective states to do so. Hence, both the national commander and COMKFOR were able to play a significant role in regard to an act or omission that occurred during an operation. In view of this, it was argued that both actors could be said to have effective control over the conduct in question to some extent. Determining the degree of effective control that each actor exercised is a matter of interpretation. Since DARIOs now include provisions establishing responsibility without the requirement of attribution,7 the contribution made by the national commander and COMKFOR in committing the action complained of must be construed narrowly. However, the ambiguity of the DARIOs provisions concerning dual/multiple attribution of conduct and responsibility will continue to be a challenging issue in international law. The same also holds true of the legacy of Behrami and Saramati. In their respective Al-Jedda judgments, both the UK House of Lords and the ECtHR were forced to adopt an unconvincing line of reasoning in order to overcome the obstacle presented by Behrami/Saramati. In dealing with the problem of attribution, the House of Lords opted for ‘effective control’, as set out in DARIOs, as the proper test to be applied.8 However, in order not to conflict with the decision in Behrami/Saramati, it relied on the notion of ‘ultimate authority and control’, with the majority of their Lordships claiming that the two cases (Behrami/Saramati and Al-Jedda) were substantially dissimilar.9 When Mr. Al-Jedda lodged his complaint in Strasbourg, the ECtHR refused to annul its previous decision, and simply followed the reasoning employed by the House of Lords in its Al-Jedda judgment. However, the Court’s reference to both ‘ultimate control’ and ‘effective control’ when identifying the relationship 6  ILC Report 2011, Commentary Chapter II, page 16, para. 4. 7  See DARIOs 14–18 and 58–62. 8  Al-Jedda, UK House of Lords (n. 1), para. 5. 9  Ibid., para. 24.

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that existed between the UK and the UN shows that Behrami/Saramati caused disagreement even among the judges in Strasbourg.10 As the ECtHR’s Al-Jedda judgment did not overturn its earlier ruling, the Court may well continue to rely on this when dealing with other cases with similar facts to Behrami/Saramati, and so this problematic judgment continues to exert influence over the issue of dual/multiple attribution. In order to end the ongoing controversy, this book suggests relying on the exemplary judgments of the Court of the Appeal of The Hague and the Dutch Supreme Court- concerning the responsibility of The Netherlands stemming from Srebrenica- where the ‘effective control’ test has been applied correctly. 3

Norm Conflict Issues

Another salient issue examined in this book was the problem of norm conflict. Although, in the context of UN-authorised missions, troop-contributing nations (TCNs) ought to assume responsibility for their conduct in relation to alleged human rights violations, it is necessary to discuss whether the Chapter VII mandate that constitutes the legal basis for such operations could exempt them from their human rights obligations. According to Article 25 and Article 103 of the UN Charter, member states’ obligations under a Security Council resolution adopted under Chapter VII of the Charter prevail over their obligations under any other international agreements. This, in turn, raises a question about the limitations, if any, on the powers of the Security Council. Dealing with states’ conflicting obligations under human rights law and Security Council resolutions is fraught with difficulty. Views diverge on the matter,11 and, for as long as the Security Council continues to exist, this will probably always be the case. The recent tendency, however, has been to try to circumscribe the Security Council’s power to displace human rights obligations. Regional courts, in particular, can be said to have adopted something of a political stance in relation to this issue, making it clear that they will not allow the Security Council to displace human rights protections enshrined in their own legal systems. While the European Court of Justice (ECJ) made this

10  Al-Jedda, ECtHR (n. 1), para. 84. 11  See, for instance, Dapo Akande, ‘The Security Council and Human Rights: What is the Role of Art. 103 of the Charter?’(2009).

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point explicitly in Kadi I,12 the ECtHR’s approach in Al-Jedda demonstrated real ingenuity, and has set an important precedent. In contrast to the ECJ, the Strasbourg Court did not rely on the notion that the ECHR system forms a separate and autonomous legal order. Rather, it safeguarded the Convention in two ways. Firstly, the ECtHR stated that, since the Security Council itself has to respect human rights when undertaking its duties under the UN Charter, the Council should employ explicit language if it intends to derogate from human rights law.13 Having made this assumption, the Court went on to interpret the relevant resolution—Resolution 1546—and concluded that the Security Council did not require the UK to violate human rights law when fulfilling its obligation under the resolution. The stipulation as to the use of clear language made by the ECtHR is extremely important, since it compels the Security Council to have greater regard for human rights when exercising the immense powers vested in it under the Charter. Secondly, the Court held that states enjoy a certain amount of discretion in deciding how to undertake the obligations imposed on them by the Security Council.14 It argued that the UK could have fulfilled its obligations under Resolution 1546 without violating human rights law. In the author’s view, the margin of appreciation afforded to states in determining how to implement a Security Council decision is of equal importance to the requirement of clear and unambiguous language. Even if the Security Council did explicitly require a member state to undertake an act apparently in contravention of human rights law, the state could still be held responsible for any human rights infringement that did occur so long as it had a choice as to how to fulfill its obligations, and could have done so in a way that did not violate the right in question. The ECtHR in fact adopted this approach adopted in Nada. 4

Extraterritorial Application of Human Rights Treaties

In Al-Jedda, after attributing the internment of the applicant to the UK and finding that Resolution 1546 could not form the legal basis for his detention,15

12  C-402/05 P and C-415/05 P Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities, European Court of Justice [2008] ECR II. 13  Al-Jedda, ECtHR (n. 2), para. 102. 14  Ibid., para. 105. 15  Ibid., para. 109.

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the Court applied Article 5(1) of the ECHR as it stands.16 The Court did not have regard to the fact that the UK forces were operating beyond their national borders. This book argued that, when applied in an extraterritorial context, human rights norms cannot be applied to their full extent: in other words, in a post-conflict environment, the material scope of human rights norms ought to change to reflect the realities on the ground and the problems faced by foreign forces. However, the extent to which human rights norms should be applied in such situations is not clear. As an initial step in assessing the extraterritorial human rights obligations of TCNs, it was necessary to examine the relationship that exists between the concepts of ‘attribution’ and ‘jurisdiction’. With regard to the court decisions in cases that stemmed from UN-authorised missions, the discussion mostly revolved around the former concept. Even though such decisions, including the Al-Jedda judgment delivered by the ECtHR, have referred to the concept of jurisdiction, the impact which this has on the material scope of states’ human rights obligations has not been dealt with. The jurisdiction clause in major human rights treaties refers to a threshold requirement setting out the extent of contracting parties’ obligations.17 Hence, this book argued that the way in which jurisdiction is conceptualised will have a decisive impact on the assessment of states’ extraterritorial human rights obligations,18 albeit that the concept of extraterritorial jurisdiction is itself problematic. There is abundant jurisprudence on the concept of extraterritorial jurisdiction. In particular, the ECtHR has dealt with this question several times, and it appears that the Strasbourg Court will have to confront the problem squarely at some point in the future, owing to its inconsistent case-law on the issue. Over time, the Court has changed its controversial dictum in Bankovic asserting that the term jurisdiction in the ECHR reflects that of public international law, and that it is possible for a state party to exercise effective control only over a territory falling within the espace juridique of the Convention.19 16  Ibid., para. 110. 17  Michael O’Boyle, ‘The European Convention on Human Rights and Extraterritorial Jurisdiction: A Comment on “Life after Bankovic” ’ in Fons Coomans and Menno T. Kamminga (eds.), Extraterritorial Application of Human Rights Treaties (Intersentia, 2004), 125–126. 18  Francoise Hampson and Ibrahim Salama, ‘Working Paper on the Relationship between Human Rights Law and International Humanitarian Law’, UN Sub-Commission on the Promotion and Protection of Human Rights, 57th session, 21 June 2005, paras. 79 and 82. 19  Bankovic and Others v. Belgium and Others (Application no. 52207/99) ECHR 12 December 2001.

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In Al-Skeini, which concerned the actions of UK forces during the occupation of Iraq, the Strasbourg Court explicitly did away with the concept of espace juridique, and held that extraterritorial jurisdiction could arise when a state exercises effective control over a person or territory.20 However, this judgment, which can now be viewed as a landmark decision setting out the Court’s understanding of extraterritorial jurisdiction, still left some issues unclear. First, although it acknowledged that the UK exercised some degree of public power in the relevant part of Iraq, the ECtHR did not establish the jurisdiction of the UK on the basis of “control over a territory”. Thus, the criterion for exercising effective control over a portion of territory remains imprecise. Second, even though Al-Skeini, in contrast to Bankovic, recognised a cause-and-effect version of jurisdiction—meaning that the Convention’s rights and obligations could be divisible and tailored to the specific circumstances leading to an alleged violation21—the Court applied this novel approach only in cases where the level of control over the victim or the alleged violation reached a point that could trigger the state’s jurisdiction under the effective control over a person model of jurisdiction. Therefore, the cause-and-effect version of jurisdiction conceptualised in Al-Skeini will not encompass instances of aerial bombing, such as that which formed the subject-matter of Bankovic. While the issues left unresolved in Al-Skeini will continue to raise difficult questions in the future, the ECtHR’s recognition that Convention rights could be divisible—including in the case of Baha Mousa, who was beaten to death when in a military prison run by UK forces—was extremely important. It suggests that, in such situations, the human rights obligations of states will be limited. This book asserts that the same can be said for cases of individuals detained for imperative reasons of security by forces operating in UN-authorised missions. The ensuring question, then, is how to delineate the limited extraterritorial human rights obligations that should apply to TCNs. 5

The Relationship between International Humanitarian Law (IHL) and International Human Rights Law (IHRL)

This book argues that, when assessing the modified extraterritorial human rights obligations that should be placed on TCNs, regard ought to be had to other rules of international law dealing with the right to liberty. The law of 20  Al-Skeini and Others v. the United Kingdom (Application no. 55721/07) ECHR 7 July 2011, para. 138. 21  Ibid., para. 137.

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occupation is the only branch of international law that focuses on postconflict situations and the problems that can arise between a foreign power and an occupied population. However, attempting to make use of the law of occupation in the context of UN-mandated security missions entails exploring another complex issue: the relationship that obtains between IHL and IHRL. These two branches of law have distinct and separate objectives. Therefore, in cases where they regulate the same subject-matter in different ways, determining the interaction between them is complicated. The International Court of Justice offered the lex specialis principle as a means of dealing with any conflict between IHL and IHRL;22 however, applying this maxim in practice has proven difficult. This, in turn, has led to the emergence of various approaches and theories seeking to clarify the relationship between IHL and IHRL. Among these, the integrationist theory is gaining prominence, which advocates increased coordination or merger between IHL and IHLR—normally in one of three ways.23 First, the relationship between these two areas of law can be established by means of subsidiary application, in which IHLR remains the applicable area of law when IHL no longer applies. Second, the renvoi technique can be used, which involves interpreting general human rights norms in the light of more specific IHL rules, or vice versa. Third, a mixture of IHRL and IHL rules can be applied in particular situations, whether in peacetime or during armed conflict. This book has examined the use of the law of occupation in the context of UN-mandated missions, taking into account the complex relationship between IHL and IHRL outlined above. In this respect, determining the nature of the relationship between the law of occupation and IHRL in the context of military operations authorised by the Security Council is even more complicated, as whether, and, if so, to what extent, the former body of law can be applied to such missions is not clear. In Kosovo, it was not easy to distinguish the situation of KFOR from that of an occupying power. In Iraq, it was questionable whether the occupation genuinely came to an end after the adoption of Resolution 1546. It has been suggested that, in both cases, the law of occupation could not be formally applied, as the Security Council, acting under the

22  Legality of the Use of Nuclear Weapons (Advisory Opinion, 8 July 1996) [1996] ICJ Rep 226, para. 25. 23  Robert Kolb, ‘Human Rights and Humanitarian Law’ (2010) in Max Planck Encyclopaedia of Public International Law 2.

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Chapter VII of the UN charter, has the power to modify or set aside the application of this branch of IHL.24 In light of this, this book has contended that the law of occupation could be applied to security detention cases in the context of UN-authorised missions by way of analogy. Following the renvoi approach, it suggested that the more specific rules of the law of occupation, which are better suited to post-conflict environments, could inform the general norms of IHRL. An alternative strategy would be to compile a list of rules drawn from both IHRL and the law of occupation that could apply to all UN-authorised forces operating in post-conflict territories. The lawfulness of any security detention practice and policy could then be assessed against this list. However, since the relationship between IHRL and the law of occupation in respect of such operations is not clear, the focus of analyses has turned to the three cases studies focusing on the security detention practices of foreign actors during the international territorial administrations of Kosovo, East Timor and Iraq, and has investigated how both areas of law were co-applied on the ground, and to see what conclusions might be drawn that would be of use in future cases. 6

Lessons Learned from Security Detention Practices on the Ground

Human rights law was one of the major areas of law applicable to the postconflict administrations of Kosovo, East Timor and Iraq. Judged against the relevant human rights standards concerning detention of an individual in a domestic context, the security detention policies and practices of international entities deployed in these territories have raised serious concerns, since they were often in grave violation of these standards. In particular, they lacked clarity and certainty with regard to the following: the legal basis upon which a person could be detained; the nature of the review mechanism that would determine whether an individual should continue to be held or, alternatively, released; and the treatment of security detainees. At this point, however, consideration ought to be given as to whether—in relation to such missions—it was possible to apply human rights norms to their fullest extent. Following the end of violent conflict in Kosovo, East Timor and Iraq, there were no properly-functioning judicial or law-enforcement mechanisms 24  Yutaka Arai, The Law of Occupation: Continuity and Change of International Humanitarian Law, and Its Interaction with International Human Rights Law (Martinus Nijhoff Publishers, 2009), 595.

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operating in these territories. Moreover, especially in the case of Kosovo and East Timor, the local population did not have any faith in the laws and institutions that had been imposed on them by the displaced sovereign. Owing to these serious difficulties on the ground, it was not reasonable or possible to apply human rights norms in their entirety during the early stages of the international missions. As a consequence, this book has argued that the law of occupation—which is specifically designed to deal with the problems posed by a post-conflict environment—could serve as a useful guide when interpreting the general IHRL norms concerning the right to liberty. In fact, the extensive use made of the law of occupation by security entities operating in Kosovo, East Timor and Iraq demonstrates its usefulness in shaping security detention policies and practices in a post-conflict setting. For example, the law of occupation—particularly the GCIV—includes a number of detailed rules governing the treatment of detainees. INTERFET, which relied heavily on these rules in formulating its own policies for the treatment of detainees, was praised for its exemplary behaviour in this respect. The law of occupation can also be helpful in dealing with difficulties concerning the legal basis for security detentions. Human rights law, although it does permit security detentions in a limited number of circumstances, is particularly keen to guard against the possibility of arbitrary detention. The law of occupation can help in this respect, since it incorporates principles designed to restrict the immense powers vested in the occupying power to intern individuals for imperative reasons of security, and can therefore bring some clarity and certainty to bear on the detention policies of security forces deployed in post-conflict territories. For example, Directive 42, which specifies the conditions KFOR was obliged to comply with in relation to its security detention practices, explicitly incorporated some of these principles, such as: (i) internment was to be regarded as an exceptional measure and used only as a last resort;25 (ii) the detained person was to be released immediately if it was no longer necessary to hold him or her for reasons of security;26 and (iii) internment was not to be imposed for the purpose of gathering intelligence.27 Examining security detention practices in Kosovo, East Timor and Iraq also enabled another important lesson to be learned: determining how international law works in a post-conflict territory administered by a foreign actor is not simply a matter of interpreting and applying the relevant legal rules cor25  Al-Jedda, ECtHR (n. 1), para. 107. 26  ICTY, Prosecutor v. Delalic and Others, Judgment of Trial Chamber, 16 November 1998, para. 581. 27  Yutaka Arai (n. 24), 491.

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rectly; other factors can also have a considerable impact on security detention issues in these situations. One such factor concerns the nature of the relationship between the local population and the international administration. In East Timor, there was a relatively amicable relationship between the local population and the occupying forces, and this resulted in a much less hostile security environment, with the total number of security detainees transferred to local judicial authorities at the end of the operation amounting to only 26. In contrast, in Kosovo and Iraq, the UN-authorised missions were resented by the local people. In Kosovo, the Serbs threatened judges and prosecutors in order to disrupt public order and jeopardise the work of the administration; in Iraq, since the presence of the coalition forces in the country was the direct result of invasion, the armed insurgency was organised in the name of jihad.28 In both cases, the hostility and attacks directed at the occupying forces led to large numbers of individuals being detained, and security detention became an engrained and institutionalised practice. Another important element is the creation of a viable judicial system in which detainees can be securely and fairly dealt with. In Kosovo, East Timor and Iraq, there was a marked reluctance on the part of security forces to hand captured individuals over to the local judicial authorities, since such bodies were regarded as not being able to cope with difficult security detention cases. During the post-conflict administrations of Kosovo and East Timor, creating a new judicial system was left to UN civil entities. However, it was observed that the efforts of such actors on their own might not be sufficient: for example, in East Timor, the reconstruction of the judicial system was seriously hampered by a lack of financial aid from the international community. Efforts to create a well-functioning judiciary also prompted another question: to what extent are international administrations allowed to transform war-torn territories? The international actors deployed by the Security Council in Kosovo, East Timor and Iraq were equipped with broad powers to introduce a number of fundamental changes in these territories, ranging from wideranging economic reforms to reconstructing local institutions. However, what limits there were to these powers was not clear. The transitional administrations in Kosovo, East Timor and Iraq carried out several projects that were not appropriate in terms of the culture of the administered territory. It is suggested, therefore, that the Security Council ought to be more precise when 28  The meaning of jihad in Arabic is “to strive” and “to struggle”. However, some Muslims have used the term to refer to the driving force for fighting western occupation of Islamic countries.

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delineating the scope of authority vested in foreign governing actors. In particular, it should clearly set out the extent to which interim administrations are permitted to undertake fundamental changes in the occupied territory in contravention of the law of occupation, which stipulates the preservation of the status quo until the occupation ceases. 7

The Future of International Territorial Administration

As explained above, this book has sought to examine and understand the security detention practices of the civil and military entities operating in Kosovo, East Timor and Iraq in order to draw lessons that can be of use in the future. However, it should be observed that the rather ambiguous practice of international territorial administration may be in decline.29 Immediately after the end of the Cold War, the UN instigated its comprehensive missions in Kosovo and East Timor. Following the invasion of Iraq, the post-conflict administration of the country was entrusted to a group of states. During this mission, the idea of ‘local ownership’ was promoted. The international actors sought partnership with local stakeholders in order to enhance the legitimacy and credibility of the foreign administration. The recent ‘Arab Spring’ has seen the emergence of a new response to violent civil war. In Libya, NATO undertook a bombing campaign, and the postconflict administration of the country has been left entirely to local actors, in the form of the National Transitional Council. Such a turn of events can be attributed both to the huge economic cost of mounting open-ended military missions, as well as to reluctance on the part of western nations to become embedded in yet another foreign conflict after the arguably unsuccessful operations in Iraq and Afghanistan. Consequently, the current course of events may be indicative of a more moderate form of foreign intervention in postconflict environments. This does not mean, of course, that relying on international territorial administration as a means of responding to violent conflict will no longer be necessary. In particular, there is the problem of so-called ‘failed states’, such as Somalia, and there is no guarantee that leaving governance to local stakeholders will not lead to other instances of this phenomenon. In post-Gaddafi Libya, the lack of unity among the various factions vying for power has resulted in a fragile and deteriorating political environment, the outcome of which remains 29  Carsten Stahn, The Law and Practice of International Territorial Administration (Cambridge: Cambridge University Press, 2008), 348.

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uncertain. Consequently, the establishment of foreign military and, to a lesser extent, civil missions in post-conflict situations is likely to continue, and hence the activities of the actors involved in these missions will continue to present challenges to international law. In view of this, undertaking research to clarify the application of international law to security detention issues during the international territorial administrations of Kosovo, East Timor and Iraq has been a worthwhile project. In fact, violations of human rights law alleged to have been committed by international actors charged with the post-conflict administration of a territory are just beginning to be scrutinized by international judicial bodies. In particular, the ECtHR has recently given its judgment in Al-Jedda concerning the internment of the applicant by UK forces operating in Iraq, and this decision has paved the way for several other complaints that are likely to be lodged with the Strasbourg Court in the near future. In any event, in spite of a possible decline in international administrations at the present time, the complex issues discussed in this book—such as the extraterritorial application of human rights treaties, the relationship between IHL and IHRL, states’ conflicting obligations under human rights law and Security Council resolutions adopted under Chapter VII of the UN Charter, and the relevance of DARIOs to multilateral military operations—will continue to be troubling and controversial topics in international law, and therefore important objects of study.

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2

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3

Security Council Resolutions

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Index Abu Ghraib 199–200, 205, 206 n. 144, 215 Additional Protocol I 112, 157 African Charter on Human and Peoples’ Rights 200 Al-Jedda 6–9, 14, 19–21, 23, 35 n. 61, 41, 43–45, 47–48, 50–51, 53, 56, 64, 87 n. 179, 92–93, 127, 142, 174, 217, 218 n. 1, 219–222, 229 Al-Qaeda 21, 43, 50, 51 n. 38, 178, 214 Al-Skeini 9, 65–66, 82, 84 n. 159, 85–86, 87 n. 179, 88–91, 95, 115, 223 Amnesty International 2 n. 4, 13, 138 n. 86, 139 n. 88, 139 n. 90, 140, 196 n. 113 Armed conflict 10, 72, 77 n. 109, 89 n. 187, 93 n. 202, 98–102, 103 n. 30, 104–105, 107, 111 n. 68, 117, 120, 174, 192 n. 90, 195 n. 106, 224 Article 103 of the UN Charter 48, 52, 56, 220 Article 41 of the Charter 125–126 Article 42 of the Charter 126 Article 48 of DARIOs 37 Article 5 of the ECHR 41, 46, 48, 133, 135–136, 138, 144–145 Article 64 of GCIV 131 n. 46, 184, 194 n. 106, 196 Article 7 of DARIOs 22 Article 78 of GCIV 93 n. 199, 158, 168, 191, 192 n. 90, 208 Article 9 of the ICCPR 133, 135–136, 144–145 Article of DARS 23 n. 19, 26, 59–61, 63 Attribution of conduct 6, 16–22, 24–25, 27–28, 30, 33–39, 45, 218–219 Attribution of responsibility 17, 38, 40 Bankovic 9, 59, 66–67, 69–70, 74–75, 77–80, 82–84, 86–87, 89, 93, 222–223 Behrami and Saramati 5–6, 17–24, 29, 34–35, 39, 42, 61–63, 86 n. 172, 217–219 Blacklisting Procedures 51, 53 Chapter VI ½ of the Charter 110, 124–125 Chapter VI of the Charter 124 Chapter VII of the Charter 110–111, 114–115, 125, 127, 128 n. 34, 175, 188 n. 75, 220 Charter of the United Nations 233 CIDT 199–200, 202–207

Civil administration 11, 117, 119, 132, 173 Cold War 1–2, 110 n. 63, 117, 122–123, 124 nn. 20–21, 148, 172, 185, 228 COMINTERFET 152–154, 156, 160, 161 n. 77 COMKFOR 5, 32–33, 137–139, 219 Congo Case 110 n. 14, 196 Convention Against Torture 164 n. 85, 200 CPA 2, 12, 83, 86, 173, 179–182, 185–198, 208, 215 Criminal detainees 153, 155, 157, 171 Customary international law 13, 17, 113, 126–128, 158–159, 183 n. 53 Cyprus case 64, 88–89, 91 DARIOs 6, 13, 17, 19–20, 22, 24, 30–33, 218–219, 229 DARS 22, 23 n. 19, 26, 59–61, 63 Delalic case 94 n. 205, 157 Derogation 7, 9, 43, 93, 100, 116, 127, 169, 197 Detainee Management Unit 92 n. 198, 93 n. 198, 150–151 Detention for security reasons 41 Dual Attribution 6, 17, 24–28, 30–33, 35–39 Dutch Supreme Court 220 Dutchbat 25 n. 30, 33–34, 36 East Timor 1–2, 4, 11–15, 39, 92 n. 198, 117–118, 125 n. 24, 146–154, 156–157, 159–169, 170 n. 110, 171–173, 181, 182 n. 45, 198, 215, 217, 225–229 Economic sanctions 43, 50 Effective control 6, 17–22, 23 n. 21, 25–28, 30, 32, 33 n. 55, 34–40, 61, 63–64, 67–68, 72–73, 75–76, 78–81, 83, 85–91, 96, 108, 112, 114–116, 129, 158, 218–220, 222–223 espace juridique 67–68, 74–77, 79, 81, 83, 85, 87, 222–223 European Convention on Human Rights  6 n. 16, 8, 21, 43 n. 5, 59 n. 4, 60 n. 6, 87 n. 179, 132, 200 n. 124 European Court of Human Rights 5, 17, 19 n. 4, 48, 59, 61, 65, 94 n. 206, 127 European Court of Justice 8, 44, 56, 220, 221 n. 12 Exclusive control 4, 25–28, 85, 154

248 Extra-judicial detention 134, 139 Extraterritorial Jurisdiction 9, 58, 64–65, 67–68, 72, 74–75, 77–81, 83–84, 86–88, 90–92, 95, 158, 222–223 Extraterritorial jurisdiction over a person 74 Extraterritorial jurisdiction over a territory 78 Force Detention Centre 152–153, 155 Fourth Geneva Convention 93, 130, 150, 182, 193 Fragmentation of International Law 56 General Assembly 13, 135 n. 68, 160 n. 74, 202 Human Rights Committee 48, 70, 158, 197 n. 118, 203 Human Rights Obligation 6–9, 15, 49–50, 58–59, 61, 64–65, 72, 90–92, 93–96, 101–102, 116, 126, 140, 145, 220, 222–223 Humanitarian assistance 109 n. 61 ICCPR 60–61, 63, 71–73, 80, 102, 116, 132–136, 137 n. 76, 141, 144–145, 157–158, 164, 169 n. 106, 193 n. 97, 200 ICRC 8 n. 24, 58 n. 1, 116, 150, 155, 160 n. 74, 193 ill-treatment 199, 201–206 Inter-American Court of Human Rights  94 n. 205, 99 n. 10, 206 INTERFET 2, 92 n. 198, 146–147, 149–164, 170–171, 226 International Court of Justice 10, 97, 128, 148, 186, 224 International Human Rights Law 3, 10, 32, 94 n. 206, 95, 97, 132 n. 53, 146–147, 197 International Humanitarian Law 3, 8 n. 24, 58 n. 1, 64 n. 29, 75 n. 93, 81 n. 136, 94, 97, 100, 101 n. 18, 104, 108 n. 57, 129, 182 n. 48, 197 International Law Association 1 International Law Commission 5, 13, 17–18, 56, 59 International legal order 24, 56, 103 International Monetary Fund 187 International order 1 International territorial administration 2, 11 n. 34, 12, 118–119, 121 n. 7, 124–126, 130,

Index 132 n. 53, 144, 171 n. 112, 172, 174, 181, 183 n. 49, 217, 225, 228–229 International Tribunal for the former Yugoslavia 125 Internment 5–6, 14, 21, 35 n. 61, 41, 47, 49, 51–53, 61, 64–65, 92, 117, 141–144, 151, 154, 156–157, 159, 168, 170, 191–193, 198, 205–209, 211, 213–214, 221, 226, 229 Iraq 1–2, 4, 6 n. 16, 11–15, 19–20, 39, 49, 51 n. 38, 52–53, 75, 79, 81, 83, 86–90, 92–93, 94 n. 206, 95, 107, 111, 113–115, 117–118, 126, 130, 172–182, 185–191, 194–195, 196 n. 113, 198, 199 n. 123, 205–208, 211–215, 217, 223–229 Joint operations 17, 22–23, 25, 27, 29–30, 33 Jurisdiction to adjudicate 69 Jurisdiction to enforce 69–70 Jurisdiction to prescribe 69 Jus cogens 43, 114, 127–128, 183, 188 Kadi I 44 n. 9, 47, 49, 56–57, 221 Kadi II 44 n. 9 KFOR 2, 5–6, 11, 14, 19, 25, 29, 32, 38 n. 78, 61, 107–111, 115, 121, 126, 135–140, 143–145, 161, 174, 219, 224, 226 KFOR Directive 42 14, 139 n. 90, 140, 143, 145 Kosovo 1–2, 4–5, 11–16, 18–20, 25, 28–29, 32, 38 n. 78, 39, 45, 61–63, 92, 107–111, 115, 117–121, 132, 133 nn. 55–57, 134 n. 58, 135–140, 144–146, 150, 161, 172–174, 181, 182 n. 45, 186 n. 49, 187, 198, 215, 217–219, 224–229 KUHAP 165–167, 169 KUHP 165–166 Legitimacy 1, 161, 172–173, 211–212, 215, 228 Lex generalis 103 Lex specialis 10, 97, 99–104, 106, 116, 224 Medvedyev case 94 n. 203 Military and civil entities 14 MNF 2, 11–12, 19–20, 49, 52, 86, 107, 111, 113–115, 173–174, 179, 190–194, 197–199, 207, 215 Multinational administration 2, 126

Index Multinational operations 109 n. 59, 170 n. 111 Nada 8, 21–23, 41, 53–54, 56–57, 221 NATO 3, 5, 25, 29, 32, 38 n. 78, 59, 66, 68, 111, 120 n. 1, 121, 218–219, 228 neo-liberal economy 188 Norm conflict 6–8, 41, 43–44, 46, 48–49, 56, 102–103, 220 Nuclear Weapon Case 99 n. 11, 100 Ocalan case 76, 92, 115 Occupied territory 12, 73, 108, 111–113, 115–116, 129–131, 151–152, 156–159, 161 n. 76, 180, 183–185, 188–190, 192, 194 n. 106, 196–197, 208, 212, 228 OSCE 13 n. 41, 92 n. 198, 133 nn. 56–58, 134 n. 58, 136 n. 75, 137–138 Peace support operations 5–6, 13–18, 21–25, 34, 39, 41, 55, 61 n. 17, 131 n. 47, 174 n. 8 Plurality of responsibility 6, 24–25, 30–31, 33, 37, 39 Post-conflict administration 11, 14–15, 118–119, 121 n. 7, 129, 172, 179, 185, 227–229 Presumption of innocence 157–159 public life and order 108, 140, 184, 186, 196 Ratione loci 62–63, 66, 75 Ratione personae 61–63 Review mechanisms 144, 159, 207, 209 Right to Liberty 8–9, 14, 61, 119, 133, 135, 141, 143, 145, 174, 217, 223, 226 Sanction regime 21, 54 Security Council 2–5, 6 n. 16, 7–8, 10–13, 15–16, 18–23, 41–57, 61, 64, 86, 97, 107, 110–111, 113–115, 117, 119, 121, 124–130, 136–137, 142, 146, 149, 151, 158, 164–165, 168, 172–183, 185–190, 195 n. 106, 198, 207–208, 212–213, 216–218, 220–221, 224, 227, 229 Security Council Resolution 1244 121, 136–137, 146 n. 1 Security Council Resolution 1264 151

249 Security Council Resolution 1267 43, 48, 51, 53 Security Council Resolution 1272 164–165, 168, 182 n. 45 Security Council Resolution 1373 53 Security Council Resolution 1441 178 n. 33 Security Council Resolution 1483 12 n. 38, 114 n. 88, 127 n. 31, 179, 181–183, 186 n. 63, 195 n. 106 Security Council Resolution 1546 41, 45, 48, 207 Security Council Resolution 678 175, 177–178 Security Council Resolution 687 175–178 Security detention 2–4, 9, 11–15, 58–59, 65, 90–92, 95, 101, 107, 115–119, 130, 136, 138–139, 141–143, 145–146, 150, 154, 156, 159–160, 162–165, 167–174, 180–181, 183 n. 49, 190–191, 198–199, 206–208, 210, 212, 214–215, 217, 225–229 Security environment 50, 161–163, 215, 227 Self-determination 120, 122, 189 Shared Responsibility 25, 38 Show cause procedure 154, 156–157, 159, 162, 171 Soft law 13 Srebrenica 17, 33–35, 37, 39–40, 220 State responsibility 9, 22, 31, 37, 59–61, 63 status quo 12, 129, 183, 228 Study on Customary IHL 116 Subsidiary application 105, 224 Systemic integration of international law 106 Tactical Coordination Line 162 Tadic 125 Taliban Ordinance 54, 57 The Hague Appeal Court 35 n. 61, 38 n. 78 The Hague Regulations 86, 108, 129 n. 36, 130, 131 n. 47, 180, 183–185, 194 n. 106, 196–197 The Law of Occupation 9–12, 14–15, 94–96, 107–111, 113–119, 121, 125 n. 24, 126, 129–130, 139–147, 150, 154, 159–162, 164, 169–171, 173, 181–183, 185–191, 194, 195 n. 106, 196, 224–226, 228 The renvoi technique 105, 224

250 Torture 76, 164 n. 85, 196, 199–207, 215 Transformative Occupation 130 Transitional administration 2, 12, 14, 119, 124–125, 129–130, 139, 146, 149, 162, 164, 169, 170 n. 111, 187, 190, 212, 214, 227 Treatment of Detainees 133, 139, 156, 160–161, 170, 206, 215, 226 Troop Contributing Nations 16, 35 n. 61, 198, 220 UK House of Lords 6, 19, 23, 219 UNAMET 149–150 UN-authorised missions 6, 10–11, 16, 23, 41, 58, 64–65, 90, 92, 95, 101, 107, 110–111, 116, 121, 182, 220, 222–223, 225, 227 United Nations 1–2, 4, 7, 16, 22–23, 27–29, 30 n. 49, 33 n. 55, 35 n. 61, 41–42, 44, 54–55, 98, 109 n. 59, 122, 127, 135 n. 68, 141 n. 96, 146 n. 1, 150 n. 21, 162, 177, 182 n. 45, 187, 196, 217

Index Universal Declaration of Human Rights 98, 200 UNMIK 2, 5, 12, 61, 121, 126, 130 n. 42, 132–133, 134 n. 59, 135, 138, 140, 144–146, 173, 181 n. 45, 187 UNMISET 163 UNMOVIC 177–178 UNSCOM 175–177 UNTAET 2, 146–147, 149–151, 161–170, 182 n. 45 Vienna Convention on the Law of Treaties 47, 67, 106, 109 Violent conflict 1, 147–148, 225, 228 Wall Case 100 World Bank 187 World War I 2, 122 World War II 122, 124, 147, 185