Consider the following scenario: the United Kingdom, together with the United States and other allies, invaded Iraq in 2003. From that point on, there was an international armed conflict between the UK and Iraq. Further, as it obtained effective control over certain parts of Iraqi territory, the UK became the occupying power of these territories. Under Art. 21 of the Third Geneva Convention, and Arts. 41-43 of the Fourth Geneva Convention, the UK had legal authority to subject enemy POWs and civilians to internment.
Yet, on the other hand, the UK is a state party to the European Convention on Human Rights. In some circumstances, the ECHR applies extraterritorially. What those circumstances are is an (overly) complex question, but the UK has conceded in the Al-Skeini case before its domestic courts that the ECHR applies to extraterritorial detention.
Unlike Article 9 ICCPR, which sets a standard by prohibiting arbitrary arrest and detention, Article 5 ECHR contains a categorical prohibition of detention, except on a limited number of grounds. Preventive detention or internment on security grounds is not one of them. Further, Article 5(4) ECHR requires judicial review of any detention, while Art. 5 GC III only provides for status tribunals if POW status is doubt, and Art. 43 GC IV expressly permits review of detention by mere administrative boards.
So, on one hand we have IHL treaties expressly authorizing preventive detention or internment. On the other we have the ECHR expressly prohibiting such detention. No amount of interpretation can bring the two rules into harmony – they are in a state of genuine norm conflict. That norm conflict could have been avoided had the UK made a derogation under Art. 15 ECHR, but it did not do so (and there is a further question whether it could have actually done so, which needs ti be clarified in the future, though in my view the answer is clearly in the affirmative).
There is moreover no rule of hierarchy that could give priority either to the Geneva Conventions or to the ECHR. Lex posterior is for various reasons completely useless, while the lex specialis maxim famously touted by the ICJ in Nuclear Weapons is in my view not a rule of norm conflict resolution, but of norm conflict avoidance – it can tell us what a standard such as ‘arbitrary’ detention means in a particular set of circumstances, but it cannot give priority to one treaty over another if their texts are irreconcilable.
In June 2004, the UN Security Council adopted Resolution 1546 (2004), which authorized preventive detention by international forces in Iraq. Per the House of Lords in the Al-Jedda case, that resolution could have prevailed over the ECHR, by virtue of Article 103 of the UN Charter. That decision of course remains controversial, though in my view it is fundamentally correct. However, in Al-Jedda the House was not dealing with the detention of persons before the UNSC resolution, which was done under the Geneva Conventions – treaties of an equal hierarchical status as the ECHR.
So, what he have on our hands when it comes to detention in Iraq for more than a year in 2003/4 is a norm conflict which is both unavoidable and unresolvable. No court or judicial body can make that norm conflict go away, as a state, the United Kingdom, has simply accepted two contradictory treaties, just like any individual can sign two contradictory contracts. The only solution to such a conflict is a political one – the state has to renegotiate one of its conflicting obligations, or choose which obligation to fulfill, and pay the price for not abiding by the other one. (Of course, in the example given above, the conflict is between a permissive norm and an obligation, not between two obligations, but the permissive norm is no less frustrated due to the conflict).
These norm conflicts, like the broader fragmentation phenomenon, are obviously not of purely academic interest. Currently pending before the lower English courts is the Al-Sweady case, dealing inter alia with detention in Iraq prior to Resolution 1546. Recently decided by the English Court of Appeal was the Al-Saadoon case, where a detainee in Iraq challenged his pending transfer to Iraqi authorities on non-refoulement grounds, claiming that he was at a serious risk of being subjected to the death penalty.
On the other hand there was a status of forces treaty between the UK and Iraq, which stipulated an obligation of UK authorities to surrender any detainee to Iraqi custody, without any exception. The Court of Appeal decide to artificially avoid the conflict by ruling (quite wrongly) that the detainee was not within the UK’s jurisdiction for the purposes of Art. 1 ECHR, even though he was in UK custody. Yet, in reality there was an unavoidable and unresolvable norm conflict between the ECHR and this time a bilateral treaty, and there was nothing to be done.
This time there was a conflict between two obligations, and the only possible, political solution was for the UK to choose which of these obligations to renegotiate or to honor. And it did so, by choosing its treaty with Iraq over the ECHR, and surrendering the detainee contrary to a provisional measures order of the European Court of Human Rights, for the first time in recent memory. (For more on Al-Saadoon, see these excellent posts by Tobias Thienel: here, here and here).
Sexy stuff, isn’t it? Fragmentation may be many things, but boring is not one of them. It will be interesting to watch the progression of Al-Sweady through English courts, while I think that Al-Skeini, Al-Jedda, and Al-Saadoon are all already pending before the European Court of Human Rights. Readers will have already noted that any case with an ‘Al’ in it is at the very least worth an article. How appropriate it is then that a forthcoming article of mine on norm conflicts and human rights in the Duke Journal of Comparative and International Law deals precisely with questions like these, including with cases such as Behrami, Bosphorus and Kadi. Any comments would, as always, be most welcome.