EHRM, 07-07-2011, nr. 27021/08

‘5.

It was common ground between the parties that the governing principle is that expressed by the International Law Commission in article 5 of its draft articles on the Responsibility of International Organizations…’

‘22.

Against the factual background described above a number of questions must be asked in the present case. Were UK forces placed at the disposal of the UN? Did the UN exercise effective control over the conduct of UK forces? Is the specific conduct of the UK forces in detaining the appellant to be attributed to the UN rather than the UK? Did the UN have effective command and control over the conduct of UK forces when they detained the appellant? Were the UK forces part of a UN peacekeeping force in Iraq? In my opinion the answer to all these questions is in the negative.

23.

The UN did not dispatch the coalition forces to Iraq. The CPA was established by the coalition states, notably the US, not the UN. When the coalition states became occupying powers in Iraq they had no UN mandate. Thus when the case of Mr Mousa reached the House as one of those considered in R(Al-Skeini and others) v Secretary of State for Defence) (The Redress Trust intervening) [2007] UKHL 26, [2007] 3 WLR 33 the Secretary of State accepted that the UK was liable under the European Convention for any ill-treatment Mr Mousa suffered, while unsuccessfully denying liability under the Human Rights Act 1998. It has not, to my knowledge, been suggested that the treatment of detainees at Abu Ghraib was attributable to the UN rather than the US. Following UNSCR 1483 in May 2003 the role of the UN was a limited one focused on humanitarian relief and reconstruction, a role strengthened but not fundamentally altered by UNSCR 1511 in October 2003. By UNSCR 1511, and again by UNSCR 1546 in June 2004, the UN gave the multinational force express authority to take steps to promote security and stability in Iraq, but (adopting the distinction formulated by the European Court in para 43 of its judgment in Behrami and Saramati) the Security Council was not delegating its power by empowering the UK to exercise its function but was authorising the UK to carry out functions it could not perform itself. At no time did the US or the UK disclaim responsibility for the conduct of their forces or the UN accept it. It cannot realistically be said that US and UK forces were under the effective command and control of the UN, or that UK forces were under such command and control when they detained the appellant.

24.

The analogy with the situation in Kosovo breaks down, in my opinion, at almost every point. The international security and civil presences in Kosovo were established at the express behest of the UN and operated under its auspices, with UNMIK a subsidiary organ of the UN. The multinational force in Iraq was not established at the behest of the UN, was not mandated to operate under UN auspices and was not a subsidiary organ of the UN. There was no delegation of UN power in Iraq. It is quite true that duties to report were imposed in Iraq as in Kosovo. But the UN's proper concern for the protection of human rights and observance of humanitarian law called for no less, and it is one thing to receive reports, another to exercise effective command and control. It does not seem to me significant that in each case the UN reserved power to revoke its authority, since it could clearly do so whether or not it reserved power to do so.

25.

I would resolve this first issue in favour of the appellant and against the Secretary of State.’

‘124.

… I agree with [Lord Bingham] that the analogy with the situation in Kosovo breaks down at almost every point. The United Nations made submissions to the European Court of Human Rights in Behrami v France, Saramati v France, Germany and Norway … concerning the respective roles of UNMIK and KFOR in clearing mines, which was the subject of the Behrami case. It did not deny that these were UN operations for which the UN might be responsible. It seems to me unlikely in the extreme that the United Nations would accept that the acts of the [Multi-National Force] were in any way attributable to the UN. My noble and learned friend, Lord Brown of Eaton-under-Heywood, has put his finger on the essential distinction. The UN's own role in Iraq was completely different from its role in Kosovo. Its concern in Iraq was for the protection of human rights and the observance of humanitarian law as well to protect its own humanitarian operations there. It looked to others to restore the peace and security which had broken down in the aftermath of events for which those others were responsible.’

‘145.

To my mind it follows that any material distinction between the two cases must be found … in the very circumstances in which the [Multi-National Force] came to be authorised and mandated in the first place. The delegation to KFOR of the UN's function of maintaining security was, the court observed [in Behrami and Saramati], ‘neither presumed nor implicit but rather prior and explicit in the resolution itself’. Resolution 1244 decided (para 5) ‘on the deployment in Kosovo, under United Nations auspices, of international civil and security presences’ — the civil presence being UNMIK, recognised by the court in Behrami (para 142) as ‘a subsidiary organ of the UN’; the security presence being KFOR. KFOR was, therefore, expressly formed under UN auspices. Para 7 of the resolution ‘[a]uthorise[d] member states and relevant international organisations to establish the international security presence in Kosovo as set out in point 4 of Annex 2…’. Point 4 of Annex 2 stated: ‘The international security presence with substantial NATO participation must be deployed under unified command and control and authorised to establish a safe environment for all people in Kosovo and to facilitate the safe return to their homes of all displaced persons and refugees.’

146.

Resolution 1511, by contrast, was adopted on 16 October 2003 during the USA's and UK's post-combat occupation of Iraq and in effect gave recognition to those occupying forces as an existing security presence. …

148.

Nor did the position change when resolution 1546 was adopted on 8 June 2004, three weeks before the end of the occupation and the transfer of authority from the CPA to the interim government of Iraq on 28 June 2004. … Nothing either in the resolution [1546] itself or in the letters annexed suggested for a moment that the [Multi-National Force] had been under or was now being transferred to United Nations authority and control. True, the [Security Council] was acting throughout under Chapter VII of the Charter. But it does not follow that the UN is therefore to be regarded as having assumed ultimate authority or control over the force. The precise meaning of the term ‘ultimate authority and control’ I have found somewhat elusive. But it cannot automatically vest or remain in the UN every time there is an authorisation of UN powers under Chapter VII, else much of the analysis in Behrami would be mere surplusage.’

‘59.

There is an obvious difference between the factual position in Kosovo that lay behind the Behrami case and the factual position in Iraq that lies behind the present case. The forces making up KFOR went into Kosovo, for the first time, as members of KFOR and in terms of Security Council Resolution 1244. By contrast, the Coalition forces were in Iraq and, indeed, in occupation of Iraq, for about six months before the Security Council adopted Resolution 1511, authorising the creation of the [Multi-National Force], on 16 October 2003.

61.

It respectfully appears to me that the mere fact that Resolution 1244 was adopted before the forces making up KFOR entered Kosovo was legally irrelevant to the issue in Behrami. What mattered was that Resolution 1244 had been adopted before the French members of KFOR detained Mr Saramati. So the Resolution regulated the legal position at the time of his detention. Equally, in the present case, the fact that the British and other Coalition forces were in Iraq long before Resolution 1546 was adopted is legally irrelevant for present purposes. What matters is that Resolution 1546 was adopted before the British forces detained the appellant and so it regulated the legal position at that time. As renewed, the provisions of that Resolution have continued to do so ever since.

…

87.

If one compares the terms of Resolution 1244 and Resolution 1511, for present purposes there appears to be no relevant legal difference between the two forces. Of course, in the case of Kosovo, there was no civil administration and there were no bodies of troops already assembled in Kosovo whom the Security Council could authorise to assume the necessary responsibilities. In paragraph 5 of Resolution 1244 the Security Council accordingly decided ‘on the deployment in Kosovo, under United Nations auspices, of international civil and security presences.’ Because there were no suitable troops on the ground, in paragraph 7 of Resolution 1244 the Council had actually to authorise the establishing of the international security presence and then to authorise it to carry out various responsibilities.

88.

By contrast, in October 2003, in Iraq there were already forces in place, especially American and British forces, whom the Security Council could authorise to assume the necessary responsibilities. So it did not need to authorise the establishment of the [Multi-National Force]. In paragraph 13 the Council simply authorised ‘a multinational force under unified command to take all necessary measures to contribute to the maintenance of security and stability in Iraq’ — thereby proceeding on the basis that there would indeed be a multinational force under unified command. In paragraph 14 the Council urged member states to contribute forces to the [Multi-National Force]. Absolutely crucially, however, in paragraph 13 it spelled out the mandate which it was giving to the [Multi-National Force]. By ‘authorising’ the [Multi-National Force] to take the measures required to fulfil its ‘mandate’, the Council was asserting and exercising control over the [Multi-National Force] and was prescribing the mission that it was to carry out. The authorisation and mandate were to apply to all members of the [Multi-National Force] — the British and American, of course, but also those from member states who responded to the Council's call to contribute forces to the [Multi-National Force]. The intention must have been that all would be in the same legal position. This confirms that — as I have already held, at paragraph 61 — the fact that the British forces were in Iraq before Resolution 1511 was adopted is irrelevant to their legal position under that Resolution and, indeed, under Resolution 1546.’

‘30.

… while the Secretary of State contends that the Charter, and UNSCRs 1511 (2003), 1546 (2004), 1637 (2005) and 1723 (2006), impose an obligation on the UK to detain the appellant which prevails over the appellant's conflicting right under article 5(1) of the European Convention, the appellant insists that the UNSCRs referred to, read in the light of the Charter, at most authorise the UK to take action to detain him but do not oblige it to do so, with the result that no conflict arises and article 103 is not engaged.

31.

There is an obvious attraction in the appellant's argument since, as appears from the summaries of UNSCRs 1511 and 1546 given above in paras 12 and 15, the resolutions use the language of authorisation, not obligation, and the same usage is found in UNSCRs 1637 (2005) and 1723 (2006). In ordinary speech to authorise is to permit or allow or license, not to require or oblige. I am, however, persuaded that the appellant's argument is not sound, for three main reasons.

32.

First, it appears to me that during the period when the UK was an occupying power (from the cessation of hostilities on 1 May 2003 to the transfer of power to the Iraqi Interim Government on 28 June 2004) it was obliged, in the area which it effectively occupied, to take necessary measures to protect the safety of the public and its own safety. [Lord Bingham here referred to Article 43 of the Hague Regulations and Articles 41, 42 and 78 of the Fourth Geneva Convention: see paragraphs 42–43 below.]

These three articles are designed to circumscribe the sanctions which may be applied to protected persons, and they have no direct application to the appellant, who is not a protected person. But they show plainly that there is a power to intern persons who are not protected persons, and it would seem to me that if the occupying power considers it necessary to detain a person who is judged to be a serious threat to the safety of the public or the occupying power there must be an obligation to detain such a person: see the decision of the International Court of Justice in Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) [2005] ICJ Rep 116, paragraph 178. This is a matter of some importance, since although the appellant was not detained during the period of the occupation, both the evidence and the language of UNSCR 1546 (2004) and the later resolutions strongly suggest that the intention was to continue the pre-existing security regime and not to change it. There is not said to have been such an improvement in local security conditions as would have justified any relaxation.

33.

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. There is, however, a strong and to my mind persuasive body of academic opinion which would treat article 103 as applicable where conduct is authorised by the Security Council as where it is required: see, for example, Goodrich, Hambro and Simons (eds), Charter of the United Nations: Commentary and Documents, 3rd ed (1969), pp 615–616; Yearbook of the International Law Commission (1979), Vol II, Part One, para 14; Sarooshi, The United Nations and the Development of Collective Security (1999), pp 150–151. The most recent and perhaps clearest opinion on the subject is that of Frowein and Krisch in Simma (ed), The Charter of the United Nations: A Commentary, 2nd ed (2002), p 729:

‘Such authorizations, however, create difficulties with respect to article 103. According to the latter provision, the Charter-and thus also SC resolutions-override existing international law only insofar as they create ‘obligations’ (cf. Bernhardt on article 103 MN 27 et seq.). One could conclude that in case a state is not obliged but merely authorized to take action, it remains bound by its conventional obligations. Such a result, however, would not seem to correspond with state practice at least as regards authorizations of military action. These authorizations have not been opposed on the ground of conflicting treaty obligations, and if they could be opposed on this basis, the very idea of authorizations as a necessary substitute for direct action by the SC would be compromised. Thus, the interpretation of article 103 should be reconciled with that of article 42, and the prevalence over treaty obligations should be recognized for the authorization of military action as well (see Frowein/Krisch on article 42 MN 28). The same conclusion seems warranted with respect to authorizations of economic measures under article 41. Otherwise, the Charter would not reach its goal of allowing the SC to take the action it deems most appropriate to deal with threats to the peace-it would force the SC to act either by way of binding measures or by way of recommendations, but would not permit intermediate forms of action. This would deprive the SC of much of the flexibility it is supposed to enjoy. It seems therefore preferable to apply the rule of article 103 to all action under articles 41 and 42 and not only to mandatory measures.’

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.

34.

I am further of the opinion, thirdly, that in a situation such as the present ‘obligations’ in article 103 should not in any event be given a narrow, contract-based, meaning. The importance of maintaining peace and security in the world can scarcely be exaggerated, and that (as evident from the articles of the Charter quoted above) is the mission of the UN. Its involvement in Iraq was directed to that end, following repeated determinations that the situation in Iraq continued to constitute a threat to international peace and security. As is well known, a large majority of states chose not to contribute to the multinational force, but those which did (including the UK) became bound by articles 2 and 25 to carry out the decisions of the Security Council in accordance with the Charter so as to achieve its lawful objectives. It is of course true that the UK did not become specifically bound to detain the appellant in particular. But it was, I think, bound to exercise its power of detention where this was necessary for imperative reasons of security. It could not be said to be giving effect to the decisions of the Security Council if, in such a situation, it neglected to take steps which were open to it.

35.

Emphasis has often been laid on the special character of the European Convention as a human rights instrument. But the reference in article 103 to ‘any other international agreement’ leaves no room for any excepted category, and such appears to be the consensus of learned opinion. The decision of the International Court of Justice (Questions of Interpretation and Application of the 1971 Montreal Convention Arising From the Aerial incident at Lockerbie (Libyan Arab Jamahiriya v United Kingdom) [1992] ICJ Rep 3, para 39 and Application of the Convention on the Prevention and punishment of the Crime of Genocide [1993] ICJ Rep 325, 439-440, paras. 99–100 per Judge ad hoc Lauterpacht) give no warrant for drawing any distinction save where an obligation is jus cogens and according to Judge Bernhardt it now seems to be generally recognised in practice that binding Security Council decisions taken under Chapter VII supersede all other treaty commitments (The Charter of the United Nations: A Commentary 2nd ed, ed Simma, pp. 1299–1300).’

‘39.

Thus there is a clash between on the one hand a power or duty to detain exercisable on the express authority of the Security Council and, on the other, a fundamental human right which the UK has undertaken to secure to those (like the appellant) within its jurisdiction. How are these to be reconciled? There is in my opinion only one way in which they can 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. I would resolve the second issue in this sense.’

‘122.

… There is no doubt that prolonged detention in the hands of the military is not permitted by the laws of the United Kingdom. Nor could it be permitted without derogation from our obligations under the European Convention on Human Rights. Article 5(1) of the Convention provides that deprivation of liberty is only lawful in defined circumstances which do not include these. The drafters of the Convention had a choice between a general prohibition of ‘arbitrary’ detention, as provided in article 9 of the Universal Declaration of Human Rights, and a list of permitted grounds for detention. They deliberately chose the latter. They were well aware of Churchill's view that the internment even of enemy aliens in war time was ‘in the highest degree odious’. They would not have contemplated the indefinite detention without trial of British citizens in peace time. I do not accept that this is less of a problem if people are suspected of very grave crimes. The graver the crime of which a person is suspected, the more difficult it will be for him to secure his release on the grounds that he is not a risk. The longer therefore he is likely to be incarcerated and the less substantial the evidence which will be relied upon to prove suspicion. These are the people most in need of the protection of the rule of law, rather than the small fry in whom the authorities will soon lose interest.’

‘126.

That is, however, as far as I would go. The right is qualified but not displaced. This is an important distinction, insufficiently explored in the all or nothing arguments with which we were presented. We can go no further than the UN has implicitly required us to go in restoring peace and security to a troubled land. The right is qualified only to the extent required or authorised by the resolution. What remains of it thereafter must be observed. This may have both substantive and procedural consequences.

127.

It is not clear to me how far UNSC resolution 1546 went when it authorised the [Multi-National Force] to ‘take all necessary measures to contribute to the maintenance of security and stability in Iraq, in accordance with the letters annexed to this resolution expressing, inter alia, the Iraqi request for the continued presence of the multinational force and setting out its tasks’ (para 10). The ‘broad range of tasks’ were listed by Secretary of State Powell as including ‘combat operations against members of these groups [seeking to influence Iraq's political future through violence], internment where this is necessary for imperative reasons of security, and the continued search for and securing of weapons that threaten Iraq's security’. At the same time, the Secretary of State made clear the commitment of the forces which made up the MNF to ‘act consistently with their obligations under the law of armed conflict, including the Geneva Conventions’.

128.

On what basis is it said that the detention of this particular appellant is consistent with our obligations under the law of armed conflict? He is not a ‘protected person’ under the fourth Geneva Convention because he is one of our own citizens. Nor is the UK any longer in belligerent occupation of any part of Iraq. So resort must be had to some sort of post conflict, post occupation, analogous power to intern anyone where this is thought ‘necessary for imperative reasons of security’. Even if the UNSC resolution can be read in this way, it is not immediately obvious why the prolonged detention of this person in Iraq is necessary, given that any problem he presents in Iraq could be solved by repatriating him to this country and dealing with him here. If we stand back a little from the particular circumstances of this case, this is the response which is so often urged when British people are in trouble with the law in foreign countries, and in this case it is within the power of the British authorities to achieve it.

129.

But that is not the way in which the argument has been conducted before us. Why else could Lord Bingham and Lord Brown speak of ‘displacing or qualifying’ in one breath when clearly they mean very different things? We have been concerned at a more abstract level with attribution to or authorisation by the United Nations. We have devoted little attention to the precise scope of the authorisation. There must still be room for argument about what precisely is covered by the resolution and whether it applies on the facts of this case. Quite how that is to be done remains for decision in the other proceedings. With that caveat, therefore, but otherwise in agreement with Lord Bingham, Lord Carswell and Lord Brown, I would dismiss this appeal.’

‘130.

Internment without trial is so antithetical to the rule of law as understood in a democratic society that recourse to it requires to be carefully scrutinised by the courts of that society. There are, regrettably, circumstances in which the threat to the necessary stability of the state is so great that in order to maintain that stability the use of internment is unavoidable. The Secretary of State's contention is that such circumstances exist now in Iraq and have existed there since the conclusion of hostilities in 2003. If the intelligence concerning the danger posed by such persons is correct, — as to which your Lordships are not in a position to make any judgment and do not do so — they pose a real danger to stability and progress in Iraq. If sufficient evidence cannot be produced in criminal proceedings — which again the House has not been asked to and cannot judge — such persons may have to be detained without trial. Article 42 of the 4th Geneva Convention permits the ordering of internment of protected persons ‘only if the security of the Detaining Power makes it absolutely necessary’, and under article 78 the Occupying Power must consider that step necessary ‘for imperative reasons of security.’ Neither of these provisions applies directly to the appellant, who is not a protected person, but the degree of necessity which should exist before the Secretary of State detains persons in his position — if he has power to do so, as in my opinion he has — is substantially the same. I would only express the opinion that where a state can lawfully intern people, it is important that it adopt certain safeguards: the compilation of intelligence about such persons which is as accurate and reliable as possible, the regular review of the continuing need to detain each person and a system whereby that need and the underlying evidence can be checked and challenged by representatives on behalf of the detained persons, so far as is practicable and consistent with the needs of national security and the safety of other persons.’

‘135.

It was argued on behalf of the appellant that the Resolution did not go further than authorising the measures described in it, as distinct from imposing an obligation to carry them out, with the consequence that article 103 of the Charter did not apply to relieve the United Kingdom from observing the terms of article 5(1) of the Convention. This was an attractive and persuasively presented argument, but I am satisfied that it cannot succeed. For the reasons set out in paragraphs 32 to 39 of Lord Bingham's opinion I consider that Resolution 1546 did operate to impose an obligation upon the United Kingdom to carry out those measures. In particular, I am persuaded by State practice and the clear statements of authoritative academic opinion — recognised sources of international law — that expressions in Security Council Resolutions which appear on their face to confer no more than authority or power to carry out measures may take effect as imposing obligations, because of the fact that the United Nations have no standing forces at their own disposal and have concluded no agreements under article 43 of the Charter which would entitle them to call on member states to provide them.

136.

I accordingly am of opinion that the United Kingdom may lawfully, where it is necessary for imperative reasons of security, exercise the power to intern conferred by Resolution 1546. I would emphasise, however, that that power has to be exercised in such a way as to minimise the infringements of the detainee's rights under article 5(1) of the Convention, in particular by adopting and operating to the fullest practicable extent safeguards of the nature of those to which I referred in paragraph 130 above.’

‘42.

Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.

43.

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.’

‘4.

Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.

Nationals of a State which is not bound by the Convention are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are. …’

‘27.

Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.

Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault.

Without prejudice to the provisions relating to their state of health, age and sex, all protected persons shall be treated with the same consideration by the Party to the conflict in whose power they are, without any adverse distinction based, in particular, on race, religion or political opinion.

However, the Parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war.

41.

Should the Power in whose hands protected persons may be consider the measures of control mentioned in the present Convention to be inadequate, it may not have recourse to any other measure of control more severe than that of assigned residence or internment, in accordance with the provisions of Articles 42 and 43.

In applying the provisions of Article 39, second paragraph, to the cases of persons required to leave their usual places of residence by virtue of a decision placing them in assigned residence elsewhere, the Detaining Power shall be guided as closely as possible by the standards of welfare set forth in Part III, Section IV of this Convention.

42.

The internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary.

If any person, acting through the representatives of the Protecting Power, voluntarily demands internment and if his situation renders this step necessary, he shall be interned by the Power in whose hands he may be.

43.

Any protected person who has been interned or placed in assigned residence shall be entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose. If the internment or placing in assigned residence is maintained, the court or administrative board shall periodically, and at least twice yearly, give consideration to his or her case, with a view to the favourable amendment of the initial decision, if circumstances permit.

Unless the protected persons concerned object, the Detaining Power shall, as rapidly as possible, give the Protecting Power the names of any protected persons who have been interned or subjected to assigned residence, or who have been released from internment or assigned residence. The decisions of the courts or boards mentioned in the first paragraph of the present Article shall also, subject to the same conditions, be notified as rapidly as possible to the Protecting Power.

…

64.

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.

78.

If the Occupying Power considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may, at the most, subject them to assigned residence or to internment.

Decisions regarding such assigned residence or internment shall be made according to a regular procedure to be prescribed by the Occupying Power in accordance with the provisions of the present Convention. This procedure shall include the right of appeal for the parties concerned. Appeals shall be decided with the least possible delay. In the event of the decision being upheld, it shall be subject to periodical review, if possible every six months, by a competent body set up by the said Power.’

‘(1)

To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;

…

(3)

To achieve international cooperation in … promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; …’

‘(1)

In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.

(2)

In discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations. The specific powers granted to the Security Council for the discharge of these duties are laid down in Chapters VI, VII, VIII, and XII.’

‘41.

The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.’

42.

Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.’

‘48.

The action required to carry out the decisions of the Security Council for the maintenance of international peace and security shall be taken by all the Members of the United Nations or by some of them, as the Security Council may determine.

Such decisions shall be carried out by the Members of the United Nations directly and through their action in the appropriate international agencies of which they are members.

49.

The Members of the United Nations shall join in affording mutual assistance in carrying out the measures decided upon by the Security Council.’

‘1.

Subject to Article 103 of the Charter of the United Nations, the rights and obligations of States Parties to successive treaties relating to the same subject matter shall be determined in accordance with the following paragraphs. …’

‘114.

It has also been contended that the relevant Security Council resolutions are couched in exhortatory rather than mandatory language and that, therefore, they do not purport to impose any legal duty on any State nor to affect legally any right of any State. 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 discussions 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.’

‘178.

The Court thus concludes that Uganda was the occupying Power in Ituri at the relevant time. 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. 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.

179.

The Court, having concluded that Uganda was an occupying Power in Ituri at the relevant time, finds that Uganda's responsibility is engaged both for any acts of its military that violated its 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.

180.

The Court notes that Uganda at all times has responsibility for all actions and omissions of its own military forces in the territory of the DRC in breach of its obligations under the rules of international human rights law and international humanitarian law which are relevant and applicable in the specific situation.’

‘Conduct of organs or agents placed at the disposal of an international organization by a state or another international organization

‘1.

When an organ of a state is placed at the disposal of an international organization, the organ may be fully seconded to that organization. In this case the organ's conduct would clearly be attributable only to the receiving organization … Article 5 deals with the different situation in which the lent organ or agent still acts to a certain extent as organ of the lending state or as organ or agent of the lending organization. This occurs for instance in the case of military contingents that a state placed at the disposal of the [UN] for a peacekeeping operation, since the state retains disciplinary powers and criminal jurisdiction over the members of the national contingent. In this situation the problem arises whether a specific conduct of the lent organ or agent has to be attributed to the receiving organization or to the lending state or organization …

6.

Practice relating to peacekeeping forces is particularly significant in the present context because of the control that the contributing state retains over disciplinary matters and criminal affairs. This may have consequences with regard to attribution of conduct …

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.

7.

As has been held by several scholars, when an organ or agent is placed at the disposal of an international organization, the decisive question in relation to attribution of a given conduct appears to be who has effective control over the conduct in question.’