Violation of Art. 5-1;Non-pecuniary damage - award

Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Françoise Tulkens;George Nicolaou;Giovanni Bonello;Isabelle Berro-Lefèvre;Jean-Paul Costa;Josep Casadevall;Lech Garlicki;Ledi Bianku;Luis López Guerra;Mihai Poalelungi;Nicolas Bratza;Peer Lorenzen

The facts of the case may be summarised as follows .

The applicant was born in GPE in DATE . He played for the NORP basketball team until , following his refusal to join ORG , he left GPE in DATE and lived in GPE and GPE . He moved to GPE in DATE , where he made a claim for asylum and was granted indefinite leave to remain . He was granted NORP nationality in DATE .

In DATE the applicant and his CARDINAL eldest children travelled from GPE to GPE , via GPE . He was arrested and questioned in GPE by GPE intelligence officers , who released him after TIME , permitting him and his children to continue their journey to GPE , where they arrived on DATE . On DATE GPE soldiers , apparently acting on information provided by the NORP intelligence services , arrested the applicant at his sister ’s house in GPE . He was taken to GPE in a NORP military aircraft and then to the Sha’aibah ORG in GPE , a detention centre run by NORP forces . He was held in internment there until DATE .

The applicant was held on the basis that his internment was necessary for imperative reasons of security in GPE . He was believed by the NORP authorities to have been personally responsible for recruiting terrorists outside GPE with a view to the commission of atrocities there ; for facilitating the travel into GPE of an identified terrorist explosives expert ; for conspiring with that explosives expert to conduct attacks with improvised explosive devices against ORG in the areas around GPE and GPE ; and for conspiring with the explosives expert and members of an NORP terrorist cell in the LOC to smuggle high - tech detonation equipment into GPE for use in attacks against ORG . No criminal charges were brought against him .

NORP The applicant ’s internment was initially authorised by the senior officer in the detention facility . Reviews were conducted DATE and DATE by ORG ( ORG ) . This comprised the senior officer in the detention facility and army legal and military personnel . Owing to the sensitivity of the intelligence material upon which the applicant ’s arrest and detention had been based , CARDINAL members of the ORG were permitted to examine it . Their recommendations were passed to the Commander of ORG ( LOC ) ( “ the Commander ” ) , who himself examined the intelligence file on the applicant and took the decision to continue the internment . DATE a DATE review was carried out by the Commander , on the basis of the recommendations of the ORG . DATE and DATE the decision to intern the applicant was taken by the ORG itself , which , during this period , included as members the Commander together with members of the legal , intelligence and other army staffs . There was no procedure for disclosure of evidence or for an oral hearing , but representations could be made by the internee in writing which were considered by the legal branch and put before the ORG for consideration . The CARDINAL Commanders who authorised the applicant ’s internment in DATE and DATE gave evidence to the domestic courts that there was a substantial weight of intelligence material indicating that there were reasonable grounds for suspecting the applicant of the matters alleged against him .

When the applicant had been detained for DATE , the internment fell to be reviewed by ORG ( ORG ) . This body included senior representatives of ORG , the NORP interim government and the ambassador for GPE . It met once and thereafter delegated powers to ORG , which comprised NORP representatives and officers from ORG .

On DATE the Secretary of ORG signed an order depriving the applicant of NORP citizenship , on the ground that it was conducive to the public good . The Secretary of ORG claimed , inter alia , that the applicant had connections with violent NORP groups , in GPE and elsewhere , and had been responsible for recruiting terrorists outside GPE and facilitating their travel and the smuggling of bomb parts into GPE .

The applicant was released from internment on DATE and travelled to GPE . He appealed against the deprivation of his NORP citizenship . On DATE ORG dismissed his appeal , having heard both open and closed evidence , during a hearing where the applicant was represented by special advocates ( see , further , NORP and Others v. GPE [ ORG ] , no . CARDINAL/CARDINAL , § § CARDINAL , ECHR DATE ) . ORG held that , for reasons set out in detail in a closed judgment , it was satisfied on the balance of probabilities that the Secretary of ORG had proved that the applicant had facilitated the travel to GPE of a terrorist explosives expert and conspired with him to smuggle explosives into GPE and to conduct improvised explosive device attacks against ORG around GPE and GPE . The applicant did not appeal against the judgment .

On DATE the applicant brought a judicial review claim in GPE , challenging the lawfulness of his continued detention and also the refusal of the Secretary of ORG to return him to GPE . The Secretary of ORG accepted that the applicant ’s detention within a NORP military facility brought him within the jurisdiction of GPE under LAW . He also accepted that the detention did not fall within any of the permitted cases set out in LAW . However , the Secretary of ORG contended that LAW did not apply to the applicant because his detention was authorised by ORG DATE ( see paragraph CARDINAL below ) and that , as a matter of international law , the effect of the ORG was to displace LAW . He also denied that his refusal to return the applicant to GPE was unreasonable . It was argued on behalf of the applicant that LAW ( see paragraph CARDINAL below ) had no application since , inter alia , Resolution CARDINAL placed no obligation on GPE and/or since LAW placed an obligation on member GPE to protect human rights .

Both ORG in its judgment of CARDINAL DATE and ORG in its judgment of DATE unanimously held that ORG CARDINAL explicitly authorised ORG to take all necessary measures to contribute to the maintenance of security and stability in GPE , in accordance with the annexed letter from the GPE Secretary of ORG . By the practice of the member ORG , a ORG which acted under such an authority was treated as having agreed to carry out the ORG for the purposes of LAW and as being bound by it for the purposes of LAW ( see paragraph CARDINAL below ) . GPE obligation under LAW therefore took precedence over its obligations under the LAW . ORG also held that , under LAW of LAW DATE , since the applicant was detained in GPE , the law governing his claim for damages for false imprisonment was NORP law ( see NORP ( on the application of PERSON ) v. Secretary of ORG [ DATE ] DATE ( Admin ) ; [ DATE ] EWCA Civ CARDINAL )

The applicant appealed to ORG ( Lord PERSON of GPE , Lord PERSON of PERSON , ORG of GPE , Lord ORG and Lord PERSON of ORG - under - Heywood : see PERSON ( on the application of PERSON ) ( ORG ) ( Appellant ) v. Secretary of ORG ) [ DATE ] ORG DATE ) . The Secretary of ORG raised a new argument before ORG , claiming that by virtue of ORG and DATE the detention of the applicant was attributable to ORG and was thus outside the scope of the Convention . Lord PERSON introduced the attribution issue as follows :

“ CARDINAL . It was common ground between the parties that the governing principle is that expressed by ORG in DATE ORG on ORG ... ”

He referred to the ORG ’s reasoning in PERSON v. GPE and GPE v. GPE , GPE and GPE ( ( dec . ) [ ORG ] , nos . CARDINAL and GPE , DATE ) ( hereinafter “ Behrami and Saramati ” ) and to the factual situation in GPE at the relevant time and continued :

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

The ORG did not dispatch ORG to GPE . The CPA [ Coalition Provisional Authority ] was established by GPE , notably the GPE , not the ORG . When ORG became Occupying Powers in GPE they had no ORG mandate . Thus when the case of Mr PERSON reached the ORG [ of ORG ] as one of those considered in NORP ( PERSON and Others ) v. Secretary of ORG ) ( ORG intervening ) [ DATE ] UKHL CARDINAL , [ DATE ] CARDINAL WLR CARDINAL the Secretary of ORG accepted that the GPE was liable under LAW for any ill - treatment Mr PERSON suffered , while unsuccessfully denying liability under LAW DATE . It has not , to my knowledge , been suggested that the treatment of detainees at FAC was attributable to the ORG rather than the GPE . Following ORG [ ORG ] DATE in DATE the role of the ORG was a limited one focused on humanitarian relief and reconstruction , a role strengthened but not fundamentally altered by UNSCR CARDINAL in DATE . By ORG , and again by UNSCR CARDINAL in DATE , the ORG gave ORG express authority to take steps to promote security and stability in GPE , but ( adopting the distinction formulated by ORG in paragraph CARDINAL of its judgment in ORG was not delegating its power by empowering the GPE to exercise its function but was authorising the GPE to carry out functions it could not perform itself . At no time did the GPE or the GPE disclaim responsibility for the conduct of their forces or the ORG accept it . It can not realistically be said that GPE and GPE forces were under the effective command and control of the ORG , or that GPE forces were under such command and control when they detained the appellant .

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

I would resolve this first issue in favour of the appellant and against the Secretary of ORG . ”

ORG observed in this connection :

“ CARDINAL . ... I agree with [ Lord PERSON ] that the analogy with the situation in GPE breaks down at almost every point . ORG made submissions to ORG in GPE v. GPE , GPE v. GPE , GPE and GPE ... concerning the respective roles of UNMIK [ ORG in GPE ] and ORG [ ORG - led ORG ] in clearing mines , which was the subject of the Behrami [ and ORG ] case . It did not deny that these were ORG operations for which the ORG might be responsible . It seems to me unlikely in the extreme that ORG would accept that the acts of the [ ORG ] were in any way attributable to the ORG . My noble and learned friend , Lord PERSON of ORG - under - Heywood , has put his finger on the essential distinction . The ORG ’s own role in GPE was completely different from its role in GPE . Its concern in GPE was for the protection of human rights and the observance of humanitarian law as well [ as ] 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 . ”

Lord PERSON similarly agreed with Lord PERSON on this issue ( § CARDINAL ) . Lord PERSON also distinguished the situation in GPE from that in GPE , as follows :

“ CARDINAL . To my mind it follows that any material distinction between the CARDINAL cases must be found ... in the very circumstances in which the [ ORG ] came to be authorised and mandated in the first place . The delegation to ORG [ ORG - led ORG ] of the ORG ’s function of maintaining security was , the ORG observed [ in PERSON and PERSON ] , ‘ neither presumed nor implicit but rather prior and explicit in ORG . Resolution CARDINAL decided ( paragraph CARDINAL ) ‘ on the deployment in GPE , under ORG auspices , of international civil and security ORG – the civil presence being UNMIK [ ORG in GPE ] , recognised by ORG in PERSON [ and ORG ] ( paragraph CARDINAL ) as ‘ a subsidiary organ of the UN’ ; the security presence being ORG . PERSON was , therefore , expressly formed under ORG auspices . Paragraph CARDINAL of the ORG ‘ [ a]uthorise[d ] member ORG and relevant international organisations to establish the international security presence in GPE as set out in point CARDINAL of CARDINAL ... ’ . CARDINAL of FAC stated : ‘ The international security presence with substantial ORG participation must be deployed under unified command and control and authorised to establish a safe environment for all people in GPE and to facilitate the safe return to their homes of all displaced persons and refugees.’

Resolution CARDINAL , by contrast , was adopted on DATE during the GPE ’s and GPE ’s post - combat occupation of GPE and in effect gave recognition to those occupying forces as an existing security presence . ...

Nor did the position change when Resolution CARDINAL was adopted on DATE , DATE before the end of the occupation and the transfer of authority from the CPA [ ORG ] to the interim government of GPE on DATE . ... Nothing either in the ORG [ CARDINAL ] itself or in the letters annexed suggested for a moment that the [ ORG ] had been under or was now being transferred to ORG authority and control . True , the [ ORG ] was acting throughout under LAW [ of ORG ] . But it does not follow that the ORG is therefore to be regarded as having assumed ultimate authority or control over the ORG . The precise meaning of the term ‘ ultimate authority and control’ I have found somewhat elusive . But it can not automatically vest or remain in the ORG every time there is an authorisation of ORG powers under LAW , else much of the analysis in Behrami [ and ORG ] would be mere surplusage . ”

Lord PERSON dissented on this point . He found that the legal basis on which the members of ORG ( ORG ) were operating in GPE could not be distinguished from that on which NORP forces in ORG were operating during the period of the applicant ’s internment . He explained his views as follows :

“ CARDINAL . There is an obvious difference between the factual position in GPE that lay behind the Behrami [ and ORG ] case and the factual position in GPE that lies behind the present case . The forces making up ORG went into GPE , for the first time , as members of ORG and in terms of ORG . By contrast , ORG were in GPE and , indeed , in occupation of GPE , for DATE before ORG adopted Resolution CARDINAL , authorising the creation of the [ ORG ] , on DATE .

It respectfully appears to me that the mere fact that Resolution CARDINAL was adopted before the forces making up ORG entered GPE was legally irrelevant to the issue in PERSON [ and ORG ] . What mattered was that LAW had been adopted before the NORP members of ORG 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 NORP and other ORG were in GPE long before Resolution CARDINAL was adopted is legally irrelevant for present purposes . What matters is that Resolution CARDINAL was adopted before the NORP forces detained the appellant and so it regulated the legal position at that time . As renewed , the provisions of that ORG have continued to do so ever since .

If CARDINAL compares the terms of CARDINAL and Resolution CARDINAL , for present purposes there appears to be no relevant legal difference between the CARDINAL Forces . Of course , in the case of GPE , there was no civil administration and there were no bodies of troops already assembled in GPE whom ORG could authorise to assume the necessary responsibilities . In paragraph CARDINAL of Resolution CARDINAL the ORG accordingly decided ‘ on the deployment in GPE , under ORG auspices , of international civil and security ORG . Because there were no suitable troops on the ground , in paragraph CARDINAL of Resolution CARDINAL the ORG had actually to authorise the establishing of the international security presence and then to authorise it to carry out various responsibilities .

By contrast , in DATE , in GPE there were already forces in place , especially NORP and NORP forces , whom ORG could authorise to assume the necessary responsibilities . So it did not need to authorise the establishment of the [ ORG ] . In paragraph CARDINAL the ORG simply authorised ‘ a ORG 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 ORG under unified command . In paragraph CARDINAL the ORG urged member ORG to contribute forces to the [ ORG ] . Absolutely crucially , however , in paragraph CARDINAL it spelled out the mandate which it was giving to the [ ORG ] . By ‘ ORG the [ ORG ] to take the measures required to fulfil its ‘ mandate’ , the ORG was asserting and exercising control over the [ ORG ] and was prescribing the mission that it was to carry out . The authorisation and mandate were to apply to all members of the [ ORG ] – the NORP and NORP , of course , but also those from member GPE who responded to the ORG ’s call to contribute forces to the [ ORG ] . The intention must have been that all would be in the same legal position . This confirms DATE as I have already held , at paragraph DATE the fact that the NORP forces were in GPE before Resolution CARDINAL was adopted is irrelevant to their legal position under that ORG and , indeed , under LAW . ”

The second issue before ORG was whether the provisions of LAW were qualified by the legal regime established pursuant to ORG DATE and subsequent resolutions . On this point , ORG unanimously held that LAW gave primacy to resolutions of ORG , even in relation to human rights agreements . Lord PERSON , with whom the other ORG agreed , explained :

“ CARDINAL . ... while the Secretary of ORG contends that the LAW [ of ORG ] , and UNSCRs [ ORG ] CARDINAL ( DATE ) , DATE ) , CARDINAL ( DATE ) and DATE ( DATE ) , impose an obligation on the GPE to detain the appellant which prevails over the appellant ’s conflicting right under LAW of LAW , the appellant insists that the UNSCRs referred to , read in the light of the LAW , at most authorise the GPE to take action to detain him but do not oblige it to do so , with the result that no conflict arises and LAW of the LAW ] is not engaged .

There is an obvious attraction in the appellant ’s argument since , as appears from the summaries of UNSCRs CARDINAL and DATE given above in paragraphs CARDINAL , the Resolutions use the language of authorisation , not obligation , and the same usage is found in UNSCRs CARDINAL ( DATE ) and DATE ( DATE ) . 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 CARDINAL main reasons .

First , it appears to me that during the period when the GPE was an ORG ( from the cessation of hostilities on DATE to the transfer of power to the NORP interim government on DATE ) 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 PERSON here referred to LAW , DATE and CARDINAL of LAW ( IV ) relative to ORG in Time of War : for the text of these Articles , see paragraphs CARDINAL and CARDINAL of this judgment below . ]

These CARDINAL 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 ORG in Armed Activities on the Territory of the GPE ( Democratic Republic of the GPE v. GPE ) [ DATE ] ICJ Reports CARDINAL , paragraph CARDINAL . 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 CARDINAL ( CARDINAL ) 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 .

There are , secondly , some situations in which ORG can adopt resolutions couched in mandatory terms . CARDINAL example is UNSCR CARDINAL ( DATE ) , considered by ORG ( with reference to an ORG regulation giving effect to it ) in GPE PERSON ve PERSON v. GPE [ [ ORG ] , no . CARDINAL , ORG CARDINAL-VI ] ( DATE ) CARDINAL EHRR CARDINAL , which decided in paragraph CARDINAL that ‘ all GPE shall impound all vessels , freight vehicles , rolling stock and aircraft in their territories ... ’ . Such provisions cause no difficulty in principle , since member ORG can comply with them within their own borders and are bound by LAW to comply . But language of this kind can not be used in relation to military or security operations overseas , since the ORG and ORG have no standing forces at their own disposal and have concluded no agreements under LAW of the LAW which entitle them to call on member GPE to provide them . Thus in practice ORG can do little more than give its authorisation to member GPE which are willing to conduct such tasks , and this is what ( as I understand ) it has done for DATE . Even in UNSCR CARDINAL ( DATE ) relating to GPE , when ( as I have concluded ) the operations were very clearly conducted under ORG auspices , the language of authorisation was used . There is , however , a strong and to my mind persuasive body of academic opinion which would treat LAW as applicable where conduct is authorised by ORG as where it is required : see , for example , ORG and PERSON ( eds . ) , Charter of ORG : Commentary and Documents , CARDINALrd edn . ( DATE ) , pp . CARDINAL - CARDINAL ; ORG ( DATE ) , PERSON . II , Part CARDINAL , paragraph CARDINAL ; ORG , ORG and ORG ( DATE ) , pp . CARDINAL . The most recent and perhaps clearest opinion on the subject is that of GPE and GPE in PERSON ( ed . ) , The Charter of ORG : A Commentary , DATE . DATE ) , p. CARDINAL :

‘ Such authorisations , however , create difficulties with respect to LAW . According to the latter provision , LAW and thus also GPE [ ORG ] Resolutions – override existing international law only in so far as they create “ obligations ” ( cf . GPE on LAW seq . ) . One could conclude that in case a ORG is not obliged but merely authorised to take action , it remains bound by its conventional obligations . Such a result , however , would not seem to correspond with ORG practice at least as regards authorisations of military action . These authorisations have not been opposed on the ground of conflicting treaty obligations , and if they could be opposed on this basis , the very idea of authorisations as a necessary substitute for direct action by the ORG would be compromised . Thus , the interpretation of LAW should be reconciled with that of LAW , and the prevalence over treaty obligations should be recognised for the authorisation of military action as well ( see ORG on Article CARDINAL MN CARDINAL ) . The same conclusion seems warranted with respect to authorisations of economic measures under Article CARDINAL . Otherwise , the Charter would not reach its goal of allowing the ORG to take the action it deems most appropriate to deal with threats to the peace – it would force the ORG 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 GPE of much of the flexibility it is supposed to enjoy . It seems therefore preferable to apply the rule of LAW to all action under ORG CARDINAL and DATE and not only to mandatory measures.’

This approach seems to me to give a purposive interpretation to LAW , in the context of its other provisions , and to reflect the practice of the ORG and member GPE as it has developed over DATE .

I am further of the opinion , thirdly , that in a situation such as the present ‘ ORG in Article CARDINAL 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 ORG . Its involvement in GPE was directed to that end , following repeated determinations that the situation in GPE continued to constitute a threat to international peace and security . As is well known , a large majority of GPE chose not to contribute to ORG , but those which did ( including the GPE ) became bound by LAW and DATE to carry out the decisions of ORG in accordance with the LAW so as to achieve its lawful objectives . It is of course true that the GPE 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 ORG if , in such a situation , it neglected to take steps which were open to it .

Emphasis has often been laid on the special character of LAW as a human rights instrument . But the reference in LAW 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 ORG ( Questions of Interpretation and Application of the DATE LAW from the GPE incident at GPE ( NORP Arab GPE v. GPE ) [ DATE ] ICJ Reports CARDINAL , paragraph CARDINAL , and ORG of ORG [ DATE ] ICJ Reports CARDINAL , DATE , paragraphs CARDINAL per Judge ad hoc Lauterpacht ) give no warrant for drawing any distinction save where an obligation is jus cogens and according to Judge PERSON it now seems to be generally recognised in practice that binding ORG decisions taken under LAW supersede all other treaty commitments ( The LAW of ORG : A Commentary , DATE . , ed PERSON , [ DATE , ] pp . DATE ) . ”

Lord PERSON concluded on this issue :

“ DATE . Thus there is a clash between on the one hand a power or duty to detain exercisable on the express authority of ORG and , on the other , a fundamental human right which the GPE 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 GPE may lawfully , where it is necessary for imperative reasons of security , exercise the power to detain authorised by ORG [ ORG ] CARDINAL and successive resolutions , but must ensure that the detainee ’s rights under LAW are not infringed to any greater extent than is inherent in such detention . I would resolve the second issue in this sense . ”

Baroness PERSON commenced by observing :

“ CARDINAL . ... There is no doubt that prolonged detention in the hands of the military is not permitted by the laws of GPE . Nor could it be permitted without derogation from our obligations under LAW . Article LAW provides that deprivation of liberty is only lawful in defined circumstances which do not include these . The drafters of the LAW had a choice between a general prohibition of ‘ GPE detention , as provided in LAW , and a list of permitted grounds for detention . They deliberately chose the latter . They were well aware of PERSON ’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 NORP citizens in peacetime . 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 . ”

ORG agreed with Lord PERSON that the Convention rights could be qualified by “ competing commitments under LAW ” , but continued :

“ CARDINAL . 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 ORG 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 ORG . What remains of it thereafter must be observed . This may have both substantive and procedural consequences .

It is not clear to me how far ORG [ ORG ] Resolution CARDINAL went when it authorised the [ ORG ] to ‘ take all necessary measures to contribute to the maintenance of security and stability in GPE , in accordance with the letters annexed to this Resolution expressing , inter alia , the NORP request for the continued presence of ORG and setting out its ORG ( paragraph CARDINAL ) . The ‘ broad range of ORG were listed by Secretary of ORG PERSON as including ‘ combat operations against members of these groups [ seeking to influence GPE ’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 GPE ’s NORP . At the same time , the Secretary of ORG made clear the commitment of the forces which made up the ORG [ ORG ] to ‘ act consistently with their obligations under the law of armed conflict , including LAW .

NORP 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 GPE any longer in belligerent occupation of any part of GPE . 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 NORP . Even if ORG can be read in this way , it is not immediately obvious why the prolonged detention of this person in GPE is necessary , given that any problem he presents in GPE 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 NORP people are in trouble with the law in foreign countries , and in this case it is within the power of the NORP authorities to achieve it .

But that is not the way in which the argument has been conducted before us . Why else could Lord PERSON and Lord PERSON speak of ‘ displacing or ORG in CARDINAL breath when clearly they mean very different things ? We have been concerned at a more abstract level with attribution to or authorisation by ORG . 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 ORG 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 PERSON , Lord PERSON and Lord PERSON , I would dismiss this appeal . ”

Lord PERSON started his speech by observing :

“ CARDINAL . 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 ORG is so great that in order to maintain that stability the use of internment is unavoidable . The Secretary of ORG ’s contention is that such circumstances exist now in GPE and have existed there since the conclusion of hostilities in DATE . 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 GPE . If sufficient evidence can not be produced in criminal proceedings – which again the ORG [ of ORG ] has not been asked to and can not judge DATE such persons may have to be detained without trial . LAW permits the ordering of internment of protected persons ‘ only if the security of the Detaining Power makes it absolutely ORG , and under LAW must consider that step necessary ‘ for imperative reasons of NORP . 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 ORG detains persons in his position – if he has power to do so , as in my opinion he has DATE is substantially the same . I would only express the opinion that where a ORG 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 . ”

He continued :

“ CARDINAL . It was argued on behalf of the appellant that the ORG 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 LAW [ of ORG ] did not apply to relieve GPE from observing the terms of LAW . This was an attractive and persuasively presented argument , but I am satisfied that it can not succeed . For the reasons set out in DATE of Lord PERSON ’s opinion I consider that Resolution CARDINAL did operate to impose an obligation upon GPE to carry out those measures . In particular , I am persuaded by ORG practice and the clear statements of authoritative academic opinion – recognised sources of international law – that expressions in ORG 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 ORG have no standing forces at their own disposal and have concluded no agreements under LAW which would entitle them to call on member GPE to provide them .

I accordingly am of [ the ] opinion that GPE may lawfully , where it is necessary for imperative reasons of security , exercise the power to intern conferred by LAW . 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 LAW , in particular by adopting and operating to the fullest practicable extent safeguards of the nature of those to which I referred in paragraph CARDINAL above . ”

Following ORG ruling on the applicable legal regime ( see paragraph CARDINAL above ) , which was upheld by ORG , the applicant brought a claim for damages in the NORP courts claiming that , from CARDINAL DATE , his detention without judicial review was unlawful under the terms of LAW , which came into force on DATE ( see paragraph CARDINAL below ) .

This claim was finally determined by ORG in a judgment dated DATE ( [ DATE ] EWCA Civ CARDINAL ) . The majority found that , in the circumstances , the review procedure under Coalition Provisional Authority Memorandum No . CARDINAL ( Revised ) ( see paragraph CARDINAL below ) provided sufficient guarantees of fairness and independence to comply with NORP law .

On DATE ORG , acting under LAW , adopted Resolution CARDINAL . The ORG decided , inter alia , that GPE had been and remained in material breach of its obligations under previous ORG resolutions to disarm and to cooperate with ORG and ORG weapons inspectors . Resolution CARDINAL decided to afford GPE a final opportunity to comply with its disarmament obligations and set up an enhanced inspection regime . It requested the Secretary - General of ORG immediately to notify GPE of the ORG and demanded that GPE cooperate immediately , unconditionally , and actively with the inspectors . Resolution CARDINAL concluded by recalling that ORG had “ repeatedly warned GPE that it w[ould ] face serious consequences as a result of its continued violations of its obligations ” . ORG decided to remain seised of the matter .

On DATE a Coalition of armed forces under unified command , led by GPE with a large force from GPE and small contingents from GPE , GPE and GPE , commenced the invasion of GPE . By DATE the NORP had captured GPE and by DATE GPE troops had gained control of GPE . Major combat operations in GPE were declared complete on DATE . Thereafter , other GPE sent troops to help with the reconstruction efforts in GPE .

On DATE ORG of GPE and GPE at ORG addressed a joint letter to the President of ORG , which read as follows :

“ GPE , GPE and GPE and Coalition partners continue to act together to ensure the complete disarmament of GPE of weapons of mass destruction and means of delivery in accordance with ORG . The ORG participating in the Coalition will strictly abide by their obligations under international law , including those relating to the essential humanitarian needs of the people of GPE . ...

In order to meet these objectives and obligations in the post - conflict period in GPE , GPE , GPE partners , acting under existing command and control arrangements through ORG , have created ORG , which includes ORG , to exercise powers of government temporarily , and , as necessary , especially to provide security , to allow the delivery of humanitarian aid , and to eliminate weapons of mass destruction .

GPE , GPE partners , working through ORG , shall , inter alia , provide for security in and for the provisional administration of GPE , including by : deterring hostilities ; ... maintaining civil law and order , including through encouraging international efforts to rebuild the capacity of the NORP civilian police force ; eliminating all terrorist infrastructure and resources within GPE and working to ensure that terrorists and terrorist groups are denied safe haven ; ... and assuming immediate control of NORP institutions responsible for military and security matters and providing , as appropriate , for the demilitarisation , demobilisation , control , command , reformation , disestablishment , or reorganisation of those institutions so that they no longer pose a threat to the NORP people or international peace and security but will be capable of defending GPE ’s sovereignty and territorial integrity .

ORG has a vital role to play in providing humanitarian relief , in supporting the reconstruction of GPE , and in helping in the formation of an NORP interim authority . GPE , GPE partners are ready to work closely with representatives of ORG and its specialised agencies and look forward to the appointment of a special coordinator by the Secretary - General . We also welcome the support and contributions of member GPE , international and regional organisations , and other entities , under appropriate coordination arrangements with ORG .

We would be grateful if you could arrange for the present letter to be circulated as a document of ORG .

( Signed ) PERSON Permanent Representative of GPE

( Signed ) PERSON Permanent Representative of the GPE ”

As mentioned in the above letter , the occupying GPE , acting through ORG , created ORG ) to act as a “ caretaker administration ” until an NORP government could be established . It had power , inter alia , to issue legislation . On DATE the GPE Secretary of Defence , PERSON , issued a memorandum formally appointing Ambassador PERSON as Administrator of the CPA with responsibility for the temporary governance of GPE . In CPA Regulation No . CARDINAL , dated DATE , Ambassador PERSON provided , inter alia , that the CPA “ shall exercise powers of government temporarily in order to provide for the effective administration of GPE during the period of transitional administration ” and that :

“ CARDINAL . The CPA is vested with all executive , legislative and judicial authority necessary to achieve its objectives , to be exercised under relevant ORG resolutions , including LAW ( DATE ) , and the laws and usages of war . This authority shall be exercised by the CPA Administrator .

As the Commander of Coalition Forces , the Commander of ORG shall directly support the CPA by deterring hostilities ; maintaining GPE ’s territorial integrity and security ; searching for , securing and destroying weapons of mass destruction ; and assisting in carrying out Coalition policy generally . ”

The CPA administration was divided into regional areas . CPA LOC was placed under GPE responsibility and control , with a ORG . It covered the southernmost CARDINAL of GPE ’s CARDINAL provinces , each having a governorate coordinator . GPE troops were deployed in the same area .

United Nations Security Council Resolution DATE referred to by Ambassador PERSON in CPA Regulation No . CARDINAL was actually adopted DATE , on CARDINAL DATE . It provided as follows :

“ ORG ,

Recalling all its previous relevant resolutions ,

Resolved that ORG should play a vital role in humanitarian relief , the reconstruction of GPE , and the restoration and establishment of national and local institutions for representative governance ,

Welcoming also the resumption of humanitarian assistance and the continuing efforts of the Secretary - General and the specialised agencies to provide food and medicine to the people of GPE ,

Welcoming the appointment by the Secretary - General of his Special Adviser on GPE ,

Noting the letter of CARDINAL DATE from ORG GPE and GPE and GPE to the President of ORG ( S/CARDINAL/CARDINAL ) and recognising the specific authorities , responsibilities , and obligations under applicable international law of GPE under unified command ( the ‘ Authority’ ) ,

Noting further that other GPE that are not Occupying Powers are working now or in the future may work under the ORG ,

Welcoming further the willingness of member GPE to contribute to stability and security in GPE by contributing personnel , equipment , and other resources under the ORG ,

Determining that the situation in GPE , although improved , continues to constitute a threat to international peace and security ,

Acting under LAW of ORG ,

Appeals to member GPE and concerned organisations to assist the people of GPE in their efforts to reform their institutions and rebuild their country , and to contribute to conditions of stability and security in GPE in accordance with this Resolution ;

Calls upon all member ORG in a position to do so to respond immediately to the humanitarian appeals of ORG and other international organisations for GPE and to help meet the humanitarian and other needs of the NORP people by providing food , medical supplies , and resources necessary for reconstruction and rehabilitation of GPE ’s economic infrastructure ;

Calls upon the ORG , consistent with LAW and other relevant international law , to promote the welfare of the NORP 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 NORP people can freely determine their own political future ;

Calls upon all concerned to comply fully with their obligations under international law including in particular LAW of DATE and LAW of DATE ;

NORP Requests the Secretary - General to appoint a ORG for GPE whose independent responsibilities shall involve reporting regularly to the ORG on his activities under this ORG , coordinating activities of ORG in post - conflict processes in GPE , coordinating among ORG and international agencies engaged in humanitarian assistance and reconstruction activities in GPE , and , in coordination with the ORG , assisting the people of GPE through :

( a ) coordinating humanitarian and reconstruction assistance by ORG agencies and between ORG agencies and non - governmental organisations ;

( b ) promoting the safe , orderly , and voluntary return of refugees and displaced persons ;

( c ) working intensively with the ORG , the people of GPE , and others concerned to advance efforts to restore and establish national and local institutions for representative governance , including by working together to facilitate a process leading to an internationally recognised , representative government of GPE ;

( d ) facilitating the reconstruction of key infrastructure , in cooperation with other international organisations ;

( e ) NORP promoting economic reconstruction and the conditions for sustainable development , including through coordination with national and regional organisations , as appropriate , civil society , donors , and the international financial institutions ;

( f ) encouraging international efforts to contribute to basic civilian administration functions ;

( g ) promoting the protection of human rights ;

( h ) encouraging international efforts to rebuild the capacity of the NORP civilian police force ; and

( i ) encouraging international efforts to promote legal and judicial reform ;

NORP Requests the Secretary - General to report to the Council at regular intervals on the work of the Special Representative with respect to the implementation of this Resolution and on the work of ORG and encourages GPE and GPE and GPE to inform the ORG at regular intervals of their efforts under this ORG ;

Decides to review the implementation of this ORG within DATE of adoption and to consider further steps that might be necessary .

Calls upon member GPE and international and regional organisations to contribute to the implementation of this ORG ;

Decides to remain seised of this matter . ”

NORP In DATE ORG was established . The CPA was required to consult with it on all matters concerning the temporary governance of GPE .

On DATE ORG passed Resolution CARDINAL , which provided , inter alia , as follows :

“ ORG

Recognising that international support for restoration of conditions of stability and security is essential to the well - being of the people of GPE as well as to the ability of all concerned to carry out their work on behalf of the people of GPE , and welcoming member State contributions in this regard under LAW ( DATE ) ,

Determining that the situation in GPE , although improved , continues to constitute a threat to international peace and security ,

Acting under LAW of ORG ,

PERSON the sovereignty and territorial integrity of GPE , and underscores , in that context , the temporary nature of the exercise by ORG ) of the specific responsibilities , authorities , and obligations under applicable international law recognised and set forth in LAW ( DATE ) , which will cease when an internationally recognised , representative government established by the people of GPE is sworn in and assumes the responsibilities of the ORG , inter alia , through steps envisaged in DATE CARDINAL below ;

Resolves that ORG , acting through the Secretary - General , his ORG , and ORG [ for ] GPE , should strengthen its vital role in GPE , including by providing humanitarian relief , promoting the economic reconstruction of and conditions for sustainable development in GPE , and advancing efforts to restore and establish national and local institutions for representative government ;

Determines that the provision of security and stability is essential to the successful completion of the political process as outlined in paragraph CARDINAL above and to the ability of ORG to contribute effectively to that process and the implementation of Resolution DATE ) , and authorises a ORG under unified command to take all necessary measures to contribute to the maintenance of security and stability in GPE , including for the purpose of ensuring necessary conditions for the implementation of the timetable and programme as well as to contribute to the security of ORG , ORG and other institutions of the NORP interim administration , and key humanitarian and economic infrastructure ;

Urges member GPE to contribute assistance under this ORG mandate , including military forces , to ORG referred to in paragraph CARDINAL above ;

NORP Requests that GPE , on behalf of ORG as outlined in paragraph CARDINAL above , report to ORG on the efforts and progress of this ORG as appropriate and not less than DATE ;

Decides to remain seised of the matter . ”

Reporting to ORG on DATE , ORG said that ORG had conducted “ the full spectrum of military operations , which range from the provision of humanitarian assistance , civil affairs and relief and reconstruction activities to the detention of those who are threats to security ” . In a submission made by the CPA to ORG of the High Commissioner for Human Rights on DATE it was stated that GPE and GPE military forces retained legal responsibility for the prisoners of war and detainees whom they respectively held in custody .

On DATE the NORP Foreign Minister told ORG :

“ We seek a new and unambiguous draft resolution that underlines the transfer of full sovereignty to the people of GPE and their representatives . The draft resolution must mark a clear departure from ORG DATE ) and CARDINAL ( DATE ) which legitimised the occupation of our country .

However , we have yet to reach the stage of being able to maintain our own security and therefore the people of GPE need and request the assistance of ORG to work closely with NORP forces to stabilise the situation . I stress that any premature departure of international troops would lead to chaos and the real possibility of civil war in GPE . This would cause a humanitarian crisis and provide a foothold for terrorists to launch their evil campaign in our country and beyond our borders . The continued presence of ORG will help preserve GPE ’s unity , prevent regional intervention in our affairs and protect our borders at this critical stage of our reconstruction . ”

On DATE , the Prime Minister of the interim government of GPE , PERSON , and the GPE Secretary of ORG , PERSON , wrote to the President of ORG , as follows :

“ Republic of GPE ,

Prime Minister PERSON .

Excellency :

On my appointment as Prime Minister of the interim government of GPE , I am writing to express the commitment of the people of GPE to complete the political transition process to establish a free , and democratic GPE and to be a partner in preventing and combating terrorism . As we enter a critical new stage , regain full sovereignty and move towards elections , we will need the assistance of the international community .

The interim government of GPE will make every effort to ensure that these elections are fully democratic , free and fair . Security and stability continue to be essential to our political transition . There continue , however , to be forces in GPE , including foreign elements , that are opposed to our transition to peace , democracy , and security . The government is determined to overcome these forces , and to develop security forces capable of providing adequate security for the NORP people .

Until we are able to provide security for ourselves , including the defence of GPE ’s land , sea and air space , we ask for the support of ORG and the international community in this endeavour . We seek a new resolution on ORG ( ORG ) mandate to contribute to maintaining security in GPE , including through the tasks and arrangements set out in the letter from Secretary of ORG PERSON to the President of ORG . ...

We are ready to take sovereign responsibility for governing GPE by DATE . We are well aware of the difficulties facing us , and of our responsibilities to the NORP people . The stakes are great , and we need the support of the international community to succeed . We ask ORG to help us by acting now to adopt a ORG resolution giving us necessary support .

I understand that the Co - sponsors intend to annex this letter to ORG under consideration . In the meantime , I request that you provide copies of this letter to members of the ORG as quickly as possible .

( Signed ) Dr PERSON ”

“ The Secretary of ORG ,

GPE .

Excellency :

Recognising the request of the government of GPE for the continued presence of ORG ( ORG ) in GPE , and following consultations with Prime Minister PERSON of the NORP interim government , I am writing to confirm that the ORG under unified command is prepared to continue to contribute to the maintenance of security in GPE , including by preventing and deterring terrorism and protecting the territory of GPE . The goal of the ORG will be to help the NORP people to complete the political transition and will permit ORG and the international community to work to facilitate GPE ’s reconstruction .

Under the agreed arrangement , the ORG stands ready to continue to undertake a broad range of tasks to contribute to the maintenance of security and to ensure ORG protection . These include activities necessary to counter ongoing security threats posed by forces seeking to influence GPE ’s political future through violence . This will include combat operations against members of these groups , internment where this is necessary for imperative reasons of security , and the continued search for and securing of weapons that threaten GPE ’s security . ...

In order to continue to contribute to security , the ORG must continue to function under a framework that affords the ORG and its personnel the status that they need to accomplish their mission , and in which the contributing ORG have responsibility for exercising jurisdiction over their personnel and which will ensure arrangements for , and use of assets by , the ORG . The existing framework governing these matters is sufficient for these purposes . In addition , the forces that make up the ORG are and will remain committed at all times to act consistently with their obligations under the law of armed conflict , including LAW .

The ORG is prepared to continue to pursue its current efforts to assist in providing a secure environment in which the broader international community is able to fulfil its important role in facilitating GPE ’s reconstruction . In meeting these responsibilities in the period ahead , we will act in full recognition of and respect for NORP sovereignty .

We look to other member GPE and international and regional organisations to assist the people of GPE and the sovereign NORP government in overcoming the challenges that lie ahead to build a democratic , secure and prosperous country .

The co - sponsors intend to annex this letter to ORG under consideration . In the meantime , I request that you provide copies of this letter to members of the ORG as quickly as possible .

( Signed ) PERSON ”

Provision for the new regime was made in ORG DATE , adopted on DATE . It provided as follows , with the above letters from PERSON and PERSON annexed :

“ ORG ,

Welcoming the beginning of a new phase in GPE ’s transition to a democratically elected government , and looking forward to the end of the occupation and the assumption of full responsibility and authority by a fully sovereign and independent interim government of GPE by DATE ,

Recalling all of its previous relevant resolutions on GPE ,

Recalling the establishment of ORG UNAMI ) on DATE , and affirming that ORG should play a leading role in assisting the NORP people and government in the formation of institutions for representative government ,

Recognising that international support for restoration of stability and security is essential to the well - being of the people of GPE as well as to the ability of all concerned to carry out their work on behalf of the people of GPE , and welcoming member State contributions in this regard under LAW ( DATE ) of CARDINAL DATE and Resolution CARDINAL ( DATE ) ,

Recalling the report provided by GPE to ORG on DATE on the efforts and progress made by ORG ,

Recognising the request conveyed in the letter of DATE from the Prime Minister of the interim government of GPE to the President of the Council , which is annexed to this Resolution , to retain the presence of ORG ,

Welcoming the willingness of ORG to continue efforts to contribute to the maintenance of security and stability in GPE in support of the political transition , especially for upcoming elections , and to provide security for the ORG presence in GPE , as described in the letter of DATE from GPE Secretary of ORG to the President of the ORG , which is annexed to this ORG ,

Noting the commitment of all forces promoting the maintenance of security and stability in GPE to act in accordance with international law , including obligations under international humanitarian law , and to cooperate with relevant international organisations ,

Determining that the situation in GPE continues to constitute a threat to international peace and security ,

Acting under LAW of ORG ,

ORG the formation of a sovereign interim government of GPE ... which will assume full responsibility and authority by DATE for governing GPE ... ;

ORG that , also by DATE , the occupation will end and ORG will cease to exist , and that GPE will reassert its full sovereignty ;

Decides that in implementing , as circumstances permit , their mandate to assist the NORP people and government , the Special Representative of the Secretary - General and ORG UNAMI ) , as requested by the government of GPE , shall :

( a ) play a leading role to :

( i ) assist in the convening , during DATE , of a national conference to select a ORG ;

( ii ) NORP advise and support ORG of GPE , as well as the interim government of GPE and ORG , on the process for holding elections ;

( iii ) promote national dialogue and consensus - building on the drafting of a national LAW by the people of GPE ;

( b ) DATE and also :

( i ) advise the government of GPE in the development of effective civil and social services ;

( ii ) contribute to the coordination and delivery of reconstruction , development , and humanitarian assistance ;

( iii ) promote the protection of human rights , national reconciliation , and judicial and legal reform in order to strengthen the rule of law in GPE ; and

( iv ) advise and assist the government of GPE on initial planning for the eventual conduct of a comprehensive census ;

Notes that the presence of ORG in GPE is at the request of the incoming interim government of GPE and therefore reaffirms the authorisation for ORG under unified command established under LAW ( DATE ) , having regard to the letters annexed to this ORG ;

Decides that the ORG shall have the authority to take all necessary measures to contribute to the maintenance of security and stability in GPE in accordance with the letters annexed to this Resolution expressing , inter alia , the NORP request for the continued presence of ORG and setting out its tasks , including by preventing and deterring terrorism , so that , inter alia , ORG can fulfil its role in assisting the NORP people as outlined in paragraph QUANTITY above and the NORP people can implement freely and without intimidation the timetable and programme for the political process and benefit from reconstruction and rehabilitation activities ;

NORP Requests member GPE and international and regional organisations to contribute assistance to ORG , including military forces , as agreed with the government of GPE , to help meet the needs of the NORP people for security and stability , humanitarian and reconstruction assistance , and to support the efforts of ORG ;

NORP Requests the Secretary - General to report to the Council within DATE from DATE ORG on ORG operations in GPE , and on a DATE basis thereafter on the progress made towards national elections and fulfilment of all ORG ’s responsibilities ;

Requests that GPE , on behalf of ORG , report to ORG within DATE from DATE ORG on the efforts and progress of this ORG , and on a DATE basis thereafter ;

Decides to remain actively seised of the matter . ”

On DATE the CPA had issued Memorandum No . CARDINAL , which set out provisions on criminal detention and security internment by ORG . A revised version of Memorandum No . CARDINAL was issued on DATE . It provided as follows :

Section CARDINAL : ORG

“ ( CARDINAL ) Any person who is detained by a national contingent of the ORG [ ORG ] for imperative reasons of security in accordance with the mandate set out in ORG [ ORG ] CARDINAL ( hereinafter ‘ security internee’ ) shall , if he is held for a period TIME , be entitled to have a review of the decision to intern him .

( CARDINAL ) The review must take place with the least possible delay and in any case must be held DATE after the date of induction into an internment facility .

( CARDINAL ) Further reviews of the continued detention of any security internee shall be conducted on a regular basis but in any case not DATE from the date of induction into an internment facility .

( CARDINAL ) The operation , condition and standards of any internment facility established by the ORG shall be in accordance with section IV of the Fourth Geneva Convention .

( CARDINAL ) ORG internees who are placed in internment after DATE must in all cases only be held for so long as the imperative reasons of security in relation to the internee exist and in any case must be either released from internment or transferred to the NORP criminal jurisdiction DATE from the date of induction into an ORG internment facility . Any person under DATE interned at any time shall in all cases be released not later than DATE after the initial date of internment .

( CARDINAL ) Where it is considered that , for continuing imperative reasons of security , a security internee placed in internment after DATE who is over DATE should be retained in internment for DATE , an application shall be made to ORG ( ORG ) for approval to continue internment for an additional period . In dealing with the application , the members of the ORG will present recommendations to the co - chairs who must jointly agree that the internment may continue and shall specify the additional period of internment . While the application is being processed the security internee may continue to be held in internment but in any case the application must be finalised not DATE from the expiration of the initial DATE internment period .

( CARDINAL ) Access to internees shall be granted to the ORG . Access will only be denied the ORG for reasons of imperative military necessity as an exceptional and temporary measure . The ORG shall be permitted to inspect health , sanitation and living conditions and to interview all internees in private and to record information regarding an internee .

( CARDINAL) ORG to internees shall be granted to official delegates of the ICRC [ ORG ] . Access will only be denied the delegates for reasons of imperative military necessity as an exceptional and temporary measure . The ICRC delegates shall be permitted to inspect health , sanitation and living conditions and to interview all internees in private . They shall also be permitted to record information regarding an internee and may pass messages to and from the family of an internee subject to reasonable censorship by the facility authorities .

On DATE full authority was transferred from the CPA to the NORP interim government , and the CPA ceased to exist . Subsequently , ORG , including the NORP forces forming part of it , remained in GPE pursuant to requests by the NORP government and authorisations from ORG .

On DATE the new NORP LAW was adopted . It provided that any law which contradicted its provisions was deemed to be void . LAW required , inter alia , that any deprivation of liberty must be based on a decision issued by a competent judicial authority and LAW provided that no one should be kept in custody except according to a judicial decision .

The authorisation for the presence of ORG in GPE under ORG Resolution DATE was extended by Resolution CARDINAL of CARDINAL DATE and LAW of DATE until DATE and DATE respectively . These ORG also annexed an exchange of letters between the Prime Minister of GPE and the GPE Secretary of ORG , PERSON , referring back to the original exchange of letters annexed to LAW .

On DATE , as required by Resolution CARDINAL , the Secretary - General of ORG reported to ORG on the situation in GPE ( S/CARDINAL/CARDINAL ) . Under the heading “ Human rights activities ” he stated , inter alia :

“ CARDINAL . The volume of reports on human rights violations in GPE justifies serious concern . Accounts of human rights violations continue to appear in the press , in private security reports and in reports by local human rights groups . Individual accounts provided to ORG [ ORG GPE ] and admissions by the authorities concerned provide additional indications about this situation . In many cases , the information about violations has been widely publicised . Effective monitoring of the human rights situation remains a challenge , particularly because the current security situation makes it difficult to obtain evidence and further investigate allegations . In most instances , however , the consistency of accounts points to clear patterns .

... CARDINAL of the major human rights challenges remains the detention of CARDINAL of persons without due process . According to ORG , there were CARDINAL detainees at DATE , CARDINAL of whom were in the custody of ORG . Despite the release of some detainees , their number continues to grow . Prolonged detention without access to lawyers and courts is prohibited under international law , including during states of emergency . ”

Similar concerns were repeated in his reports of DATE and DATE ( NORP , § CARDINAL ; NORP , § CARDINAL ) and DATE , DATE and DATE ( S/CARDINAL/CARDINAL , § DATE ; S/CARDINAL/CARDINAL , § CARDINAL ; GPE , § CARDINAL ; S/CARDINAL/CARDINAL , § CARDINAL ) . By DATE , he reported that there were CARDINAL detainees in ORG detention centres . In his report of DATE he observed :

“ At the same time , the internment of CARDINAL of NORP by ORG and the NORP authorities constitutes de facto arbitrary detention . The extent of such practices is not consistent with the provisions of international law governing internment for imperative reasons of security . ”

In DATE he described the increase in the number of detainees and security internees as a pressing human rights concern ( S/CARDINAL/CARDINAL , § DATE ) .

Similar observations were contained in the reports of ORG ) , which paragraph CARDINAL of Resolution CARDINAL mandated to promote the protection of human rights in GPE . In its report on the period July to August CARDINAL , ORG expressed concern about the high number of persons detained , observing that “ [ i]nternees should enjoy all the protections envisaged in all the rights guaranteed by international human rights conventions ” . In its next report ( DATE ) , ORG repeated this expression of concern and advised that “ [ t]here is an urgent need to provide [ a ] remedy to lengthy internment for reasons of security without adequate judicial oversight ” . In DATE UNAMI reported that of the CARDINAL detainees in ORG custody , CARDINAL individuals were under GPE custody while the rest were under GPE authority . In the report for DATE , ORG expressed concern that there had been no reduction in the number of security internees detained by ORG . In its report for DATE , ORG commented :

“ DATE . The practice of indefinite internment of detainees in the custody of the ORG [ ORG ] remains an issue of concern to ORG . Of the total of CARDINAL persons held at DATE , an unknown number are classified as security internees , held for prolonged periods effectively without charge or trial . ... The current legal arrangements at the detention facilities do not fulfil the requirement to grant detainees due process . ... ”

ORG returned to this subject in its report for DATE , stating , inter alia :

“ DATE . In ORG ’s view , the administrative review process followed by the ORG through ORG ( CRRB ) requires improvement to meet basic due process requirements . Over time , the procedures in force have resulted in prolonged detention without trial , with many security internees held for DATE with minimal access to the evidence against them and without their defence counsel having access to such evidence . While the current review process is based on procedures contained in FAC , ORG notes that , irrespective of the legal qualification of the conflict , both in situations of international and internal armed conflict LAW are not of exclusive application to persons deprived of their liberty in connection with the conflict . Alongside common LAW and customary international law , international human rights law also applies . Accordingly , detainees during an internal armed conflict must be treated in accordance with international human rights law . As such , persons who are deprived of their liberty are entitled to be informed of the reasons for their arrest ; to be brought promptly before a judge if held on a criminal charge , and to challenge the lawfulness of their detention . ”

The report also referred to an exchange of correspondence between the GPE authorities and ORG , on the question whether LAW for ORG applied in relation to ORG security internment regime . While the GPE authorities maintained that it did not , ORG concluded :

“ CARDINAL . There is no separation between human rights and international humanitarian law in ORG resolutions adopted LAW [ of the Charter of ORG ] . In fact , the leading Resolutions on GPE , such as LAW of June CARDINAL , cite in the preamble : ‘ Affirming the importance of the rule of law , national reconciliation , respect for human rights including the rights of women , fundamental freedoms , and democracy.’ This arguably applies to all forces operating in GPE . The letter from the government of GPE attached to GPE res . [ ORG ] DATE also states that ‘ The forces that make up ORG will remain committed to acting consistently with their obligations and rights under international law , including the law of armed ORG . International law includes human rights law . ”

Articles DATE and CARDINAL of the Regulations concerning ORG ( GPE , DATE ) ( “ LAW ) provide as follows :

Article CARDINAL

“ 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 . ”

Article CARDINAL

“ 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 . ”

The Convention ( IV ) relative to ORG in Time of War ( GPE , CARDINAL DATE ) ( “ the LAW ” ) defines “ protected persons ” as follows :

Article CARDINAL

“ Persons protected by the ORG 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 ORG to the conflict or Occupying Power of which they are not nationals .

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

It contains the following provisions in relation to security measures and internment :

Article CARDINAL

“ 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 ORG 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 . ”

Article CARDINAL

“ 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 ORG DATE and CARDINAL .

In applying the provisions of LAW , 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 . ”

Article CARDINAL

“ 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 ORG , voluntarily demands internment and if his situation renders this step necessary , he shall be interned by ORG in whose hands he may be . ”

Article CARDINAL

“ 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 DATE , 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 ORG 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 ORG . ”

Article CARDINAL

“ 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 LAW , 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 . ”

Article CARDINAL

“ 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 DATE , by a competent body set up by the said Power .

Protected persons made subject to assigned residence and thus required to leave their homes shall enjoy the full benefit of LAW . ”

LAW to LAW of DATE , and relating to ORG ) , of DATE , provides in LAW :

“ Any person arrested , detained or interned for actions related to the armed conflict shall be informed promptly , in a language he understands , of the reasons why these measures have been taken . Except in cases of arrest or detention for penal offences , such persons shall be released with the minimum delay possible and in any event as soon as the circumstances justifying the arrest , detention or internment have ceased to exist . ”

The Preamble to LAW states , inter alia :

“ We , the peoples of ORG ,

Determined

to save succeeding generations from the scourge of war , which twice in our lifetime has brought untold sorrow to mankind , and

to reaffirm faith in fundamental human rights , in the dignity and worth of the human person , in the equal rights of men and women and of nations large and small , and

to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained , ... ”

Article CARDINAL sets out the purposes of ORG , as follows :

“ CARDINAL . 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 ;

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 ; ... ”

Article CARDINAL provides , inter alia :

“ CARDINAL . In order to ensure prompt and effective action by ORG , its members confer on the ORG primary responsibility for the maintenance of international peace and security , and agree that in carrying out its duties under this responsibility ORG acts on their behalf .

NORP In discharging these duties the ORG shall act in accordance with the Purposes and Principles of ORG . The specific powers granted to ORG for the discharge of these duties are laid down in Chapters VI , ORG , ORG and ORG . ”

LAW provides :

“ The members of ORG agree to accept and carry out the decisions of ORG in accordance with the present Charter . ”

Chapter VII of the LAW is entitled “ Action with respect to threats to the peace , breaches of the peace and acts of aggression ” . Article CARDINAL provides :

“ The Security Council shall determine the existence of any threat to the peace , breach of the peace , or act of aggression and shall make recommendations , or decide what measures shall be taken in accordance with ORG CARDINAL and DATE , to maintain or restore international peace and security . ”

Articles CARDINAL and CARDINAL read as follows :

Article CARDINAL

“ ORG 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 ORG 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 . ”

Article CARDINAL

“ Should the Security Council consider that measures provided for in LAW 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 ORG . ”

Articles CARDINAL to CARDINAL provide for the conclusion of agreements between member GPE and ORG for the former to contribute to the latter the land and air forces necessary for the purpose of maintaining international peace and security . No such agreements have been concluded .

Chapter VII continues :

Article CARDINAL

“ CARDINAL . The action required to carry out the decisions of ORG for the maintenance of international peace and security shall be taken by all the members of ORG or by some of them , as ORG may determine .

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

Article CARDINAL

“ The members of the ORG shall join in affording mutual assistance in carrying out the measures decided upon by ORG . ”

LAW reads as follows :

“ In the event of a conflict between the obligations of the members of ORG under the present Charter and their obligations under any other international agreement , their obligations under the present Charter shall prevail . ”

DATE is entitled “ Application of successive treaties relating to the same subject matter ” and its first paragraph reads as follows :

“ CARDINAL . Subject to LAW , the rights and obligations of GPE Parties to successive treaties relating to the same subject matter shall be determined in accordance with the following paragraphs . ... ”

ORG has held LAW to mean that the LAW obligations of ORG member GPE prevail over conflicting obligations from another international treaty , regardless of whether the latter treaty was concluded before or after the LAW of ORG or was only a regional arrangement ( see GPE v. GPE , ICJ Reports DATE , p. CARDINAL , at § MONEY ) . ORG has also held that LAW means that ORG member States’ obligations under a ORG resolution prevail over obligations arising under any other international agreement ( see ORG of the DATE LAW from LAW at GPE ( NORP Arab GPE v. GPE and ORG GPE v. GPE , ICJ Reports DATE , vol . CARDINAL , p. CARDINAL , at § DATE , and p. CARDINAL at § MONEY ( hereinafter “ GPE ” ) .

In its LAW of the Continued Presence of GPE in GPE , notwithstanding ORG ( DATE ) , ORG observed , in connection with the interpretation of ORG resolutions :

“ CARDINAL . It has also been contended that the relevant ORG resolutions are couched in exhortatory rather than mandatory language and that , therefore , they do not purport to impose any legal duty on any ORG nor to affect legally any right of any ORG . The language of a resolution of ORG should be carefully analysed before a conclusion can be made as to its binding effect . In view of the nature of the powers under LAW , 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 LAW provisions invoked and , in general , all circumstances that might assist in determining the legal consequences of the resolution of ORG . ”

In its judgment ORG on the Territory of the GPE ( Democratic Republic of the GPE ( ORG ) v. GPE ) of DATE , ORG considered whether , during the relevant period , GPE was an “ Occupying Power ” of any part of the territory of GPE , within the meaning of customary international law , as reflected in LAW ( § § CARDINAL of the judgment ) . ORG found that NORP forces were stationed in the province of GPE and exercised authority there , in the sense that they had substituted their own authority for that of the NORP government ( § § DATE ) . ORG continued :

“ CARDINAL . The ORG thus concludes that GPE was the Occupying Power in GPE at the relevant time . As such it was under an obligation , according to LAW , 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 ORG . 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 ORG , having concluded that GPE was an ORG in GPE at the relevant time , finds that GPE ’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 .

The ORG notes that GPE at all times has responsibility for all actions and omissions of its own military forces in the territory of the ORG 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 . ”

The case of PERSON and ORG v. ORG of ORG ( Joined Cases C-CARDINAL/CARDINAL P and C-CARDINAL/CARDINAL P ) ( hereinafter “ LOC ) concerned a complaint about the freezing of assets under LAW adopted to reflect ORG CARDINAL ( DATE ) , CARDINAL ( DATE ) and CARDINAL ( DATE ) , which dictated , inter alia , that all GPE were to take measures to freeze the funds and other financial assets of individuals and entities associated with PERSON , the ORG network and the ORG . Those individuals , including the applicants , were identified by ORG . The applicants argued that the regulations were ultra vires because the assets freezing procedure violated their fundamental rights to a fair trial and to respect for their property , as protected by LAW establishing ORG .

ORG Instance rejected the applicant ’s claims and upheld the regulations , essentially finding that the effect of LAW was to give ORG resolutions precedence over other international obligations ( save jus cogens ) , which included the LAW establishing ORG . Thus , ORG concluded that it had no authority to review , even indirectly , ORG resolutions in order to assess their conformity with fundamental rights .

Mr PERSON appealed to ORG where his case was considered together with another appeal by ORG , which gave judgment on DATE . ORG held that ORG law formed a distinct , internal legal order and that it was competent to review the lawfulness of a Community regulation within that internal legal order , despite the fact that the regulation had been enacted in response to a ORG resolution . It followed that , while it was not for the “ Community judicature ” to review the lawfulness of ORG resolutions , they could review the act of a member ORG or Community organ that gave effect to that resolution ; doing so “ would not entail any challenge to the primacy of the resolution in international law ” . ORG recalled that ORG was based on the rule of law , that fundamental rights formed an integral part of the general principles of law and that respect for human rights was a condition of the lawfulness of ORG acts . The obligations imposed by an international agreement could not have the effect of prejudicing the “ constitutional principles of ORG ” , which included the principle that all ORG acts had to respect fundamental rights . The regulations in question , which provided for no right to challenge a freezing order , failed to respect fundamental rights and should be annulled .

In PERSON v. PERSON ( DATE ) CARDINAL SCt CARDINAL , ORG examined claims for habeas corpus relief from CARDINAL NORP citizens who voluntarily travelled to GPE and allegedly committed crimes there . They were each arrested in DATE by NORP forces operating as part of ORG , given hearings before ORG composed of NORP officers , who concluded that they posed a threat to GPE ’s security , and placed in the custody of GPE military operating as part of ORG . It was subsequently decided to transfer the detainees to the custody of the NORP authorities to stand trial on criminal charges before the NORP courts , and the detainees sought orders from ORG prohibiting this , on the ground that they risked torture if transferred to NORP custody . It was argued on behalf of the GPE government that ORG lacked jurisdiction over the GPE petitions because the NORP forces holding them operated as part of ORG . ORG observed that :

“ GPE acknowledges that PERSON and PERSON are NORP citizens held overseas in the immediate ‘ physical custody’ of NORP soldiers who answer only to an NORP chain of command . The MNF - I itself operates subject to a unified NORP command . ‘ [ ORG a practical LOC , the ORG concedes , it is ‘ the President and the ORG , the Secretary of ORG , and the NORP commanders that control what ... NORP soldiers ORG , ... including the soldiers holding PERSON and PERSON . In light of these admissions , it is unsurprising that GPE has never argued that it lacks the authority to release PERSON or PERSON , or that it requires the consent of other countries to do so . ”

ORG concluded that it considered “ these concessions the end of the jurisdictional inquiry ” . It held that NORP citizens held overseas by NORP soldiers subject to a GPE chain of command were not precluded from filing habeas corpus petitions in ORG . However , it further decided that ORG could not exercise their habeas corpus jurisdiction to enjoin GPE from transferring individuals alleged to have committed crimes and detained within the territory of a foreign sovereign ORG to that sovereign ORG for criminal prosecution . The ORG allegations that their transfer to NORP custody was likely to result in torture were a matter of serious concern but those allegations generally had to be addressed by the political branches , not the judiciary .

ORG was established by ORG in DATE for the “ promotion of the progressive development of international law and its codification ” . It consists of CARDINAL experts on international law , elected to the Commission by ORG from a list of candidates nominated by governments of member GPE .

In DATE of its ORG on ORG ( adopted in DATE ) , ORG stated as follows :

“ Conduct of organs or agents placed at the disposal of an international organisation by a ORG or another international organisation

The conduct of an organ of a ORG or an organ or agent of an international organisation that is placed at the disposal of another international organisation shall be considered under international law an act of the latter organisation if the organisation exercises effective control over that conduct . ”

ORG further stated , in DATE of its commentary on this Article :

“ CARDINAL . When an organ of a ORG is placed at the disposal of an international organisation , the organ may be fully seconded to that organisation . In this case the organ ’s conduct would clearly be attributable only to the receiving organisation ... LAW deals with the different situation in which the lent organ or agent still acts to a certain extent as organ of the lending ORG or as organ or agent of the lending organisation . This occurs for instance in the case of military contingents that a ORG placed at the disposal of ORG for a peacekeeping operation , since the ORG 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 organisation or to the lending ORG or organisation .

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

Attribution of conduct to the contributing ORG is clearly linked with the retention of some powers by that ORG over its national contingent and thus on the control that the ORG possesses in the relevant respect .

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

The report of ORG entitled “ Fragmentation of International Law : Difficulties Arising from ORG ( DATE ) stated , in respect of LAW ( footnotes omitted ) :

“ ( a ) What are the prevailing obligations ?

Article CARDINAL does not say that the Charter prevails , but refers to obligations under the Charter . Apart from the rights and obligations in the LAW itself , this also covers duties based on binding decisions by ORG bodies . The most important case is that of LAW that obliges member GPE to accept and carry out resolutions of ORG that have been adopted LAW . Even if the primacy of ORG decisions under LAW is not expressly spelled out in the LAW , it has been widely accepted in practice as well as in doctrine . The question has sometimes been raised whether also [ Security ] Council resolutions adopted ultra vires prevail by virtue of LAW . Since obligations for member ORG can only derive out of such resolutions that are taken within the limits of its powers , decisions ultra vires do not give rise to any obligations to begin with . Hence no conflict exists . The issue is similar with regard to non - binding resolutions adopted by ORG organs , including ORG . These are not covered by LAW .

( b ) What does it mean for an obligation to prevail over another ?

What happens to the obligation over which LAW establishes precedence ? Most commentators agree that the question here is not of validity but of priority . The lower - ranking rule is merely set aside to the extent that it conflicts with the obligation under LAW . This was how Waldock saw the matter during the ILC [ ORG ] debates on DATE [ of LAW on LAW ] : ‘ [ T]he very language of LAW makes it clear that it presumes the priority of the LAW , not the invalidity of treaties conflicting with it.’

A small number of authors have received a more extensive view of the effects of LAW namely the invalidity of the conflicting treaty or obligation – on the basis of the view of the LAW as a ‘ constitution’ . A clear - cut answer to this question ( priority or invalidity ? ) can not be received from the text of LAW . Yet the word ‘ PERSON does not grammatically imply that the lower - ranking provision would become automatically null and void , or even suspended . The ORG is merely prohibited from fulfilling an obligation arising under that other norm . Article CARDINAL says literally that in case of a conflict , the ORG in question should fulfil its obligation under the LAW and perform its duties under other agreements in as far as compatible with obligations under LAW . This also accords with the drafting materials of the LAW , which state that :

‘ it would be enough that the conflict should arise from the carrying out of an obligation under the LAW . It is immaterial whether the conflict arises because of intrinsic inconsistency between the CARDINAL categories of obligations or as the result of the application of the provisions of the LAW under given circumstances.’ ”

In DATE the NORP government initiated ORG in ORG . The Process is aimed at developing a multilateral approach to the treatment of detainees in military situations and it has attracted the involvement of CARDINAL States and a number of international organisations , including ORG , ORG , ORG , ORG and ORG . The “ non - paper ” , prepared for the first ORG on DATE , stated by way of introduction :

“ DATE has seen a significant change in the character of international military operations . They have developed from traditional peacekeeping operations under LAW of the UN Charter , through peacemaking operations under LAW , to a new type of operation in which military forces are acting in support of governments that need assistance to stabilise their countries or in support of the international administration of territory . In such operations , military forces may have to perform tasks which would normally be performed by national authorities , including detaining people in the context of both military operations and law enforcement .

At the same time , the countries which are to be assisted frequently have difficulties fulfilling their human rights and humanitarian law obligations due to the internal problems . Normal modus operandi , including the transfer of detainees to local authorities , may therefore often not be possible as it may contradict the legal and political commitment of the troop - contributing countries . The handling of detainees thereby becomes a challenge in itself . If a sustainable solution to these challenges is not reached , it may have an impact on the ability of the military forces of other GPE to engage in certain types of operations . States therefore can not disregard these challenges when contributing to ongoing or future operations of this nature .

The main challenge is a basic CARDINAL : how do troop - contributing GPE ensure that they act in accordance with their international obligations when handling detainees , including when transferring detainees to local authorities or to other troop - contributing countries ? Solving this challenge is not simple , as it involves addressing a number of complicated and contested legal issues as well as complicated practical and political aspects . ... ”

The “ non - paper ” continued , under the heading “ The legal basis [ of detention ] ” :

“ The legal basis for military forces to detain persons typically derives from the mandate of a given operation . The types of operations relevant for this non - paper are typically based on a Chapter VII resolution of ORG [ ORG ] . A ORG resolution may contain or refer to text on detention , and supplementary regulation may be found , for example , in standard operating procedures , rules of engagement and status - of - forces agreements , although the latter would also represent an agreement with the territorial ORG . The wording in these instruments on detention , however , is not always clear , if the issue is addressed at all .

In these circumstances , the mandate to detain is often based on the traditional wording of UNSC resolutions giving a military force the mandate to ‘ take all necessary measures’ in order to fulfil the given task . When a ORG resolution is unclear or contains no text on the mandate to detain , the right to self - defence may contain an inherent yet limited right to detain . However , this may leave the question open as to the scope of the mandate , e.g. , what type of detention is possible in self - defence and whether it is possible only to detain persons for reasons of security or also to detain e.g. common criminals .

There is therefore a need for ORG to address this issue and clearly establish the legal basis for the right of the force to detain in a given operation . A clear mandate on detention will improve the possibilities for soldiers on the ground to take the right decisions on detention matters and to avoid different interpretations on the understanding of an ambiguous ORG resolution . This need is further underlined by the fact that the right to detain might subsequently be challenged in court , and that officials / soldiers of troop - contributing GPE may be subject to prosecution for unlawful confinement under the grave breaches regime of LAW ( IV ) . ”