AS TO THE ADMISSIBILITY OF
Application no. 23276/04
by Saddam HUSSEIN
against Albania, Bulgaria, Croatia, Czech Republic, Denmark, Estonia, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Turkey, Ukraine and the United Kingdom.
The European Court of Human Rights (Fourth Section), sitting on 14 March 2006 as a Chamber composed of:
Mr J. Casadevall, President,
Sir Nicolas Bratza,
Mr M. Pellonpää,
Mr R. Maruste,
Mr S. Pavlovschi,
Mr J. Borrego Borrego,
Mr J. Šikuta, judges,
and Mr M. O’Boyle, Section Registrar,
Having regard to the above application lodged on 29 June 2004,
Having regard to the refusal of interim measures requested under Rule 39 of the Rules of Court,
Having regard to the priority attached to the case (Rule 41) and to the confidentiality of the case-file (Rule 33), the latter accorded to avoid disclosure of the identity of the applicant’s legal representatives,
Having deliberated, decides as follows:
The applicant, Mr Saddam Hussein, is an Iraqi national who was born in 28 April 1937. He is the former President of Iraq and is currently detained in Iraq.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 20 March 2003 coalition forces, led by a US General, invaded Iraq. While the greater part of the forces and support came from the United States (“US”) and the United Kingdom (“UK”), it will be assumed for current purposes that the coalition forces included support from each of the respondent States during the relevant period. The coalition forces were composed of Divisions, each with military responsibility for a particular zone of Iraq. The US divisions controlled the North and Central zones (the latter including the Baghdad and Tikrit regions) and the two multi-national divisions, one commanded by the UK and the other by Poland, were charged with the south zone and south central zone, respectively.
In early April US forces captured Baghdad. On 16 April 2003 a US General issued a “Freedom Message” announcing the creation of the Coalition Provisional Authority (CPA), a civilian administration that would exercise powers of government temporarily in Iraq. On 13 May 2003 the US Secretary for Defence appointed Ambassador Bremer as Administrator of the CPA. On 13 July 2003 the Iraqi Governing Council (“IGC”) was formed: the Administrator of the CPA could veto all decisions of the IGC. The CPA was to co-ordinate with the ICG on all matter involving the temporary governance of Iraq.
On 13 December 2003 the applicant was captured near Tikrit by US soldiers (the 4th Infantry Division and members of Task Force 121) during an operation called “Operation Red Dawn”.
On 8 June 2004 the UN Security Council adopted Resolution 1546 (2004) whereby it endorsed the formation of a sovereign interim Government of Iraq which would assume, by 30 June 2004, full responsibility and authority for governing Iraq; it welcomed the end of the occupation and the cessation of the CPA (also by 30 June 2004) when Iraq would reassert its full sovereignty; and it noted that, pending the assumption of full security responsibility by the Iraqi security forces, the presence of the multinational force in Iraq was at the request of the incoming Interim Government of Iraq (Articles 1, 2, 8 and 9 of the Resolution).
Two days earlier than foreseen, on 28 June 2004 all CPA authority was transferred to the new Iraqi Interim Government.
On 30 June 2004 the applicant was transferred by US troops to the Iraqi Government for trial.
The applicant complained about his arrest, detention, handover and ongoing trial under Articles 2, 3, 5, and 6 together with Article 1 of the 6th and 13th Protocols. He maintained that he would be executed following a finding of guilt after a “show trial” for which he lacked even the basic tools of defence.
He argued that he fell within the jurisdiction of the respondent States, whom he considered continued to hold de facto power in Iraq even after the June 2004 transfer:
(a) since the coalition States were, and continued to be, the occupying powers, they were and continued to be responsible for respecting human rights in Iraq;
(b) since he was arrested and detained and remained detained, he was and continued to be under the complete authority and control of the coalition States;
(c) since the military agents responsible for the impugned treatment were and continued to be under the control of the respondent States. Banković and Others v. Belgium and 16 Other Contracting States ((dec.) [GC], no. 52207/99) was, he argued, incorrect and had to be reconsidered.
The applicant complained about his arrest, detention and transfer to the Iraqi authorities and about his ongoing trial and its outcome.
He maintained that he fell within the jurisdiction of all the respondent States because they were the occupying powers in Iraq, because he was under their direct authority and control or because they were responsible for the acts of their agents abroad. He further argued that he remained within their jurisdiction following the transfer of authority, and his transfer, to the Iraqi authorities in June 2004 because the respondent States remained in de facto control in Iraq.
The Court considers these jurisdiction arguments to be based on submissions which are not substantiated. While the applicant referred to certain UN documents, press releases and academic publications, these referred, without more, to coalition partners acting together. The applicant did not address each respondent State’s role and responsibilities or the division of labour/power between them and the US. He did not refer to the fact or extent of the military responsibility of each Division for the zones assigned to them. He did not detail the relevant command structures between the US and non-US forces except to refer to the overall Commander of coalition forces who was at all relevant times a US General. Finally, and importantly, he did not indicate which respondent State (other than the US) had any (and, if so, what) influence or involvement in his impugned arrest, detention and handover. Despite the formal handover of authority to the Iraqi authorities in June 2004 and elections in January 2005, the applicant simply maintained, without more, that those forces remained de facto in power in Iraq.
In such circumstances, the Court considers that the applicant has not established that he fell within the jurisdiction of the respondent States on any of the bases alleged. The Court considers that he has not demonstrated that those States had jurisdiction on the basis of their control of the territory where the alleged violations took place (Loizidou v. Turkey, judgment of 18 December 1996, Reports of decision and Judgments 1996 VI and Cyprus v. Turkey [GC], no. 25781/94, ECHR 2001). Even if he could have fallen within a State’s jurisdiction because of his detention by it, he has not shown that any one of the respondent States had any responsibility for, or any involvement or role in, his arrest and subsequent detention (Issa and Others v. Turkey, no. 31821/96, §§ 71-82, 16 November 2004 and Öcalan v. Turkey [GC], no. 46221/99, § 91, ECHR 2005 ...). This failure to substantiate any such involvement also constitutes a response to his final submission to the effect that the respondent States were responsible for the acts of their military agents abroad. Finally, there is no basis in the Convention’s jurisprudence and the applicant has not invoked any established principle of international law which would mean that he fell within the respondent States’ jurisdiction on the sole basis that those States allegedly formed part (at varying unspecified levels) of a coalition with the US, when the impugned actions were carried out by the US, when security in the zone in which those actions took place was assigned to the US and when the overall command of the coalition was vested in the US.
Accordingly, the Court does not consider it to be established that there was or is any jurisdictional link between the applicant and the respondent States or therefore that the applicant was capable of falling within the jurisdiction of those States, within the meaning of Article 1 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Michael O’Boyle Josep Casadevall
HUSSEIN v. THE UNITED KINGDOM DECISION
HUSSEIN v. THE UNITED KINGDOM DECISION