Hilal Abdul Razzaq Ali Al Jedda v. The Secretary of State for Defence
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||The Court of Appeal (Civil Division), Great Britain (UK)
||8 July 2010
- Hilal Abdul Razzaq Ali Al Jedda
- The Secretary of State for Defence
||Detention; law of armed conflict; terrorism
|Other countries involved
Hilal Abdul Razzaq Ali Al Jedda was born in Iraq but went to the UK in 1992 where he was granted British citizenship in June 2000. In October 2004, Al Jedda was arrested after travelling to Iraq because he was suspected of being a member of a terrorist organisation being responsible for attacks in Iraq. Al Jedda was detained in a military detention centre in Basra, Iraq, by British forces until 30 December 2007. Eventually, no charges were filed against Al Jedda. On 14 December 2007, shortly before his release, Al Jedda was deprived of his British citizenship.
Al Jedda’s claim for damages for his unlawful detention in the period between May 2006 and December 2007, was refused by the Court of Appeal on 8 June 2010 on the ground that his detention had not violated any laws under the Iraqi Constitution.
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Hilal Abdul Razzaq Ali Al Jedda was born in Iraq, but went to the UK in 1992 where he was eventually granted British citizenship on 15 June 2000. In October 2004, he was arrested after travelling to Iraq on suspicion of being a member of a terrorist group allegedly involved in weapons smuggling and explosive attacks in Iraq. Al Jedda was subsequently detained by British forces in a military detention centre in Basra for over three years as it was believed that he would pose a serious threat to Iraq’s security. He was released without charge on 30 December 2007.
Al Jedda began proceedings in the UK on 8 June 2005, seeking judicial review of the lawfulness of his continued detention. Al Jedda claimed that his detention infringed the human rights conferred on him by Article 5(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), which is incorporated into domestic law by the Human Rights Act 1998. On 12 August 2005, his claim was dismissed by the UK’s High Court of Justice. The Court held that the authorities in the UK were required to secure the rights recognised under the ECHR, but noted that Article 5(1) ECHR was nonetheless displaced by UN Security Council Resolution 1546 (2004) by virtue of Article 103 UN Charter.
Al Jedda filed an appeal with the Court of Appeal (civil division) in order to secure both his release from detention in Iraq and his return to the UK. On 29 March 2006, the Court dismissed Al Jedda’s appeal.
On 12 December 2007, the House of Lords also dismissed Al Jedda’s appeal and ruled that the UK indeed had an obligation under international law which overruled its obligations under other treaties, including the ECHR.
After his release, Al Jedda re-pleaded the claim for unlawful detention and started proceedings seeking damages for his unlawful detention in Iraq. The period for which Al Jedda claimed damages only concerned the period of his detention following the adoption of the new Iraqi Constitution on 20 May 2006, until 30 December 2007, the date of his release. Al Jedda alleged that certain laws and procedures that justified his detention ceased to do so from 20 May 2006 onwards as they conflicted with the new Iraqi Constitution.
On 5 March 2009, his claim for damages was dismissed. Al Jedda appealed against this decision.
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Following the dismissal of Al Jedda’s claim regarding the lawfulness of his detention by the House of Lords on 12 December 2007, Al Jedda lodged an application with the ECtHR, challenging the lawfulness of his detention in Iraq under the ECHR. Al Jedda alleged that his detainment was in breach of Article 5(1) ECHR. On 11 July 2011, the Court handed down its judgment. First, it held that Al Jedda’s detention was attributable to the UK and that it fell within its jurisdiction. Second, the UK was not obliged, by virtue of UN Security Council Resolution 1546 (2004), to detain Al Jedda preventively and without judicial review. Accordingly, the Court ruled that Al Jedda was detained unlawfully under Article 5(1) ECHR and awarded substantial damages.
A few days before Al Jedda’s release from detention on 30 December 2007, the Secretary of State for the Home Department decided to deprive Al Jedda of his British citizenship by an order issued under section 40(2) of the British Nationality Act 1981. On 29 March 2012, the Court of Appeal (Civil Division) declared invalid the order of the Secretary of State. The Court held that in order to deprive someone of his nationality, the deprivation should be conducive to the public good and should not make the person stateless. Al Jedda had already lost his Iraqi nationality when he was granted British citizenship.
The Secretary of State appealed the decision of the Court of Appeal before the Supreme Court. On 9 October 2013, the Supreme Court examined the question of whether the order by which Al Jedda was deprived of his British nationality was valid at the time it was made. It held that the interpretation of the 1981 British Nationality Act put forward by the Secretary of State was unwarranted and dismissed the appeal.
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Legally relevant facts
Review mechanisms were in place for the detention of Al Jedda which provided for reviews at specified intervals and for decisions to be made by bodies including representatives of the Multinational Force, the Iraqi government and the detaining state. However, Articles 15 and 37(1)(b) of the Iraqi Constitution adopted in 2006 provide that a person cannot be deprived of his or her liberty, or be kept in custody, except in case of a judicial authority’s decision. Therefore, the Court of Appeal had to deal with the question whether the review process in place infringed the right provided for by Articles 15 and 37(1)(b) of the 2006 Iraqi Constitution.
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Core legal questions
In so far as Al Jedda’s claim raised any issue as to the meaning or effect of provisions of the Iraqi constitution, the question is whether the issue was justiciable in an English court?
Was the detention of Al Jedda by British forces in Iraq unlawful under Iraqi law?
If Al Jedda's detention was unlawful under Iraqi law, should the relevant provisions in Iraqi law be disapplied on the basis that they are inconsistent with the requirements of international law and that their enforcement would accordingly be contrary to public policy?
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Specific legal rules and provisions
Charter of the United Nations, 1945:
- Article 103 - Conflicting obligations
Convention for the Protection of Human Rights and Fundamental Freedoms, 1950, Council of Europe:
- Article 5(1) - Right to liberty and security
Iraqi Constitution, 2006:
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Article 13 - the Constitution
Article 15 - Right to enjoy life, security and liberty
Article 19 - The judiciary
Article 37(1)(b) - Liberty and dignity
Article 46 - Restrictions on rights or liberties
Article 61 - Council of Representatives
Article 130 - Existing laws
Article 143 - Transitional Administrative Law
Court's holding and analysis
Al Jedda brought an appeal against the decision issued on 5 March 2009 dismissing his claim for damages for his unlawful detention in the period between 20 May 2006 and 30 December 2007, the period of detention after the new Iraqi Constitution was adopted.
In respect of the question of justiciability, the Court of Appeal held that Al Jedda’s claim was justiciable before UK courts because the case did ‘not involve a challenge to the validity of the Constitution of Iraq’, but rather questions relating to the Constitution’s meaning in respect of Al Jedda’s claim for damages would be addressed (para. 74).
In respect of the question whether Al Jedda’s detention was unlawful under Iraqi law, the majority of the Court held that Iraqi law was not breached. Although it was required by Iraq’s constitution that a person can only be deprived of his liberty by virtue of a judicial authority’s decision, the majority of the judges held that ‘it is not only a professional judge appointed as such who has these qualities. There is no reason in principle why a rigorous, suitably qualified and independently-minded assessor should not have all the essential qualities of a judge’ (para. 114). Furthermore, it was stated that ‘the central core is an independent and genuine assessment by someone other than the initial decision maker’ (para. 156). Accordingly, the Court concluded that the bodies involved in the review process were sufficiently qualified, and that the process was sufficiently independent and impartial. Therefore, the rights provided for by the 2006 Iraqi Constitution were not breached.
As regards the question whether Al Jedda’s detention was unlawful under Iraqi law due to public policy concerns, it was held that the public policy exception should not apply. Applying Iraqi law was not contrary to public policy even if ‘it might result in a liability on the British government to pay damages for acting on the UN resolutions in a way which breached the Constitution of Iraq’. The Court of Appeal further held that the exception of public policy could only be applied if ‘the relevant law of Iraq is in some way in itself offensive or objectionable’, but ‘there is nothing inherently offensive or objectionable about the Iraqi law on which Mr Al Jedda relies’ (paras. 84-86).
The Court dismissed the appeal in its entirety, basing its decision on the fact that the detention of Al Jedda by British forces in Iraq had not violated any laws under the Iraqi Constitution.
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A. Wagner, ‘Strasbourg ruling may change UK's responsibilities under the Human Rights Act’, The Guardian, 4 July 2011.
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Social media links
‘UK: The detention of Hilal Abdul-Razzaq Ali Al-Jedda’, Amnesty International, 19 July 2005.
R. English, ’Suspected terrorist regains British citizenship’, UK Human Rights Blog, 29 March 2012.
L. Bingham, ‘Case Watch: UK Supreme Court Confronts Statelessness in al-Jedda Case’, Open Society Foundations, 24 June 2013.
G. Capel, ‘Case Preview: Al-Jedda v Secretary of State for the Home Department’, UKSC blog, 28 August 2013.
‘The Immigration Bill’, United Kingdom Immigration Law Blog, 11 October 2013.
M. Evans, ‘Theresa May, statelessness and ‘the right to have rights’’, The Justice Gap, 13 October 2013.
F. Webber, ‘Deprivation of citizenship: judges restrain the minister’, Institute of Race Relations, 17 October 2013.
‘One Court Gives and Another Takes Away on Statelessness’, New Kush, 23 October 2013.
‘Should Britain Make Terror Suspects Stateless?’, BPP Human Rights Blog, 2 December 2013.