We are actually in agreement, I think. I concur that in some cases attribution might be a prerequisite for jurisdiction, as I’ve written here http://ssrn.com/abstract=1139174. Take Loizidou as an example: if jurisdiction means effective overall control of an area (northern Cyprus), and the question is whether Turkey had such control, then it must be established that persons whose acts are attributable to Turkey exercised such control. In Loizidou this was not in dispute, as it was the regular Turkish armed forces who were in control of northern Cyprus. The same is with Behrami, as you mentioned – it was perfectly proper for the Court to see whether the acts of French troops in Kosovo were still attributable to France, before it could say whether France had control over a part of Kosovo. It’s just that it got the attribution question so spectacularly wrong.

Now, why is it that I think that the Court of Appeal was not ruling on attribution: because this argument was actually made before the High Court, which clearly rejected it (see para. 29 CA, para. 79 HC). The European Court case that was on point was Drozd and Janousek v. France and Spain, where the ECtHR found that the acts of French and Spanish judges that served as judges in Andorra were not attributable to France and Spain, as they were put at the disposal of the state of Andorra. This is of course Art. 6 ILC ASR attribution. You will see that the Court of Appeal makes no mention of Drozd, other than in para. 29. They are therefore not making the Drozd attribution argument, they are ruling on the basis that Art. 1 jurisdiction requires the exercise of legal authority, which the UK did not have independently of Iraq.

That’s a great question and the answer is relevant to the point I discuss in the post. If the Court of Appeal in Al Sadoon was saying that British forces in Iraq who held criminal detainees were effectively at the disposal of Iraq (and if the CA was right to say this) then that would mean that the relevant acts of the British forces are to be attributed to Iraq. Presumably, the same reasoning would apply to US forces holding criminal detainees in Iraq.

I do think that the statements of the Court of Appeal in paras. 32 & 33 are directly related to attribution and I think they are intended to be so related. When the Court says in para. 33 that :

In these circumstances the United Kingdom was not before 31 December 2008 exercising any power or jurisdiction in relation to the appellants other than as agent for the Iraqi court. It was not exercising, or purporting to exercise, any autonomous power of its own as a sovereign State.

what it was saying is that the acts of the UK forces were not acts of the UK but actually acts of Iraq. The question is whether this is right. The acts will only be that of Iraq if Art. 6 of the ILC Articles applies and the British forces are at the disposal of Iraq. In para. 32, Laws LJ stated,

In my judgment, from at least May 2006 until 31 December 2008, the British forces at Basra were not entitled to carry out any activities on Iraq’s territory in relation to criminal detainees save as consented to by Iraq, or otherwise authorized by a binding resolution or resolutions of the Security Council.

He seems to think that all that is required for attribution to Iraq is consent by Iraq or authorization by Iraq for the detention. This is where he gets it wrong. Consent or authorization is not enough. The ILC commentary I quote above also requires that the act of the British forces must be under the exclusive direction and control of Iraq. So the question is this: Is Iraq exclusively (i.e effectively) controlling the British forces as they held these detainees? Arguably not.

But what if Iraq was in exclusive control of the British forces? Would this affect jurisdiction under Art. 1. You and Marko think not. I’m not sure that the Court is wrong. Assume that jurisdiction means the exercise of authority and control (this is where some would disagree) then one could argue that though the detainees are under the control of certain British forces, they are not within the jurisdiciton of the UK as the UK as a State has no control over those forces and only Iraq can exercise authority and control the detainees. The ILC uses the Privy Council (a UK organ acting as final court of appeal for former British colonies) as an example of organ of one State placed at the disposal of another. Presumably, persons affected by decisions of the Privy Council sitting as final court for a commonwealth state are not within British jurisdiction under Art. 1 though the organ in question is a British organ.

The question in Al Sadoon is actually is very similar to that which arose in the Behrami decision of the ECHR. Both the ECHR and the Court of Appeal are saying that the armed forces of a State are not constrained by the Eur Convention because those armed forces are not acting as the State but rather acting as part of another entity (NATO, UN, Iraq). The difference is that the two courts have approached it differently. The ECHR in Behrami uses attribution to deny the jurisdiction of the Court )(and the application of the treaty ratione personae), while the English Court of Appeal uses attribution to say that the UK did not have jurisdiction under Art. 1. Arguably the ECtHR decided Behrami as it did so as to avoid getting to the Art. 1 question.

If I may interject with a comment: Al-Saadoon is a decision hard to comprehend in pretty much every respect. The Court of Appeal was ruling that AS was not within the UK’s jurisdiction for the purpose of Art. 1 ECHR, not that the UK organs in Iraq were put at the disposal of Iraq within the meaning of Art. 16 ILC ASR. The former is a question of the existence and breach of an obligation, the latter a question of attribution. The Court of Appeal held that because the UK in forces in Iraq were keeping AS detained with the consent of the Iraqi authorities, they exercised no legal power over him, and thus did not have Art. 1 jurisdiction. I would argue, however, that Art. 1 jurisdiction does not require the exercise of any legal power over an individual, but that’s a long story.

Just as a heads up for our readers, tomorrow the European Court of Human Rights (whose provisional measures the UK disobeyed when it transferred AS to Iraq) is expected to make public its admissibility decision in Al-Saadoon. We’ll see what they make of the Art. 1 jurisdiction question – commentary will follow.