European Court of Human Rights finds that action filed by Saddam Hussein against twenty-one members of Council of Europe who may have contributed forces to the U.S. run coalition in Iraq, inadmissible for failure to specify whether and how named Respondents took part in his capture and trial on charges of war crimes and crimes against humanity
The Applicant is Mr. Saddam Hussein, a sixty-nine-year-old Iraqi national. He has filed a proceeding for relief in the European Court of Human Rights (ECHR) against Albania, Bulgaria, Croatia, Czech Republic, Denmark, Estonia, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Turkey, Ukraine, and the United Kingdom. He is the former President of Iraq and is currently detained there.
On March 20, 2003 coalition forces, led by a U.S. General, invaded Iraq. The U.S. and the U. K. provided the bulk of the forces supporting this campaign. (For current purposes, however, the ECHR assumes that the coalition forces included support from each of the twenty-one respondent States during the relevant period.) The coalition forces consist of Divisions, each with military responsibility for a particular zone of Iraq.
In early April, U.S. forces captured Baghdad. A U.S. General soon proclaimed the creation of the Coalition Provisional Authority (CPA), a civilian administration that would temporarily exercise governmental powers in Iraq. The following month, the U.S. Secretary of Defense appointed Ambassador Bremer as Administrator of the CPA. In July, an Iraqi Governing Council (IGC) came into being although the Administrator could veto any or all of its decisions. The CPA was to co-ordinate with the IGC on all matters involving the temporary governance of Iraq.
On December 13, 2003 U.S. troops captured the Applicant near Tikrit. During the June following, the U. N. Security Council adopted Resolution 1546 (2004). The Resolution approved the formation of a sovereign interim Government of Iraq which would assume, by June 30, 2004, full responsibility and authority for governing the country; it welcomed the end of the occupation and of the CPA when Iraq would reassert its full sovereignty. It also noted that, pending the assumption of full security responsibility by Iraqi forces, the presence of the multinational force in Iraq was at the request of the incoming Interim Government of Iraq (Arts 1, 2, 8 and 9 of the Resolution). On June 28, 2004, all CPA authority passed to the new Iraqi Interim Government (IIG). Two days later, U.S. forces handed the applicant over to the IIG for trial on war crimes, crimes against humanity and other charges.
The Applicant complained to the ECHR about his arrest, detention, handover and ongoing trial under Arts 2, 3, 5, and 6 together with Art.1 of the 6th and 13th Protocols to the European Convention for the Protection of Human Rights and Fundamental Freedoms. [312 U.N.T.S. 221, in force Sept. 3, 1953, as amended]. He complained that a finding of guilt after a "show trial" for which he lacked even the basic tools of defense would likely result in his execution. Applicant argued that he fell within the jurisdiction of one or more of the twenty-one respondent States, which continued to hold de facto power in Iraq as the occupying powers. All of them are parties to the Convention and thus stand responsible for ensuring the protection of human rights in Iraq.
In unanimously deciding that the application is inadmissible, the ECHR considers Applicant's jurisdictional arguments unsubstantiated. "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 U.S. 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 U.S. and non-U.S. forces except to refer to the overall Commander of coalition forces who was at all relevant times a U.S. General."
"Finally, and importantly, he did not indicate which respondent State ... 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 [coalition] 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 . [Cites]. 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. [Cites]."
"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 U.S., when the impugned actions were carried out by the U.S., when security in the zone in which those actions took place was assigned to the U.S. and when the overall command of the coalition was vested in the U.S."
"Accordingly, the Court [unanimously] 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 Art.1 of the Convention." [224-25].
Citation: Hussein v. Albania et al., (2006) 42 E.H.R.R. SE 16; 2006 WL 1518660 (ECHR) (4th Section, 2006).
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