PARTLY DISSENTING OPINION OF JUDGE POALELUNGI

I agree with the majority that the detention was attributable to the United Kingdom and that the applicant fell within the United Kingdom’s jurisdiction. However, I do not agree that there has been a violation of Article 5 § 1 of the Convention in the present case.

Article 103 of the Charter of the United Nations provides that the member States’ obligations under the Charter must prevail over any other obligations they may have under international law. This provision reflects, and is essential for, the United Nations’ primary role within the world order of maintaining international peace and security.

On 8 June 2004, in paragraph 10 of Resolution 1546, the Security Council decided that the Multinational Force should “have the authority to take all necessary measures to contribute to the maintenance of security and stability in Iraq in accordance with the letters annexed to this Resolution”. One of the letters annexed was from US Secretary of State Colin Powell, confirming that the Multinational Force stood ready to continue to undertake a broad range of tasks, including internment where necessary for imperative reasons of security.

It is true that paragraph 10 of Resolution 1546 uses the language of authorisation rather than obligation. However, as is explained in the extract from Lord Bingham’s opinion set out in paragraph 20 of the present judgment, the United Nations Security Council cannot use the language of obligation in respect of international military or security operations, since the United Nations has no standing forces at its disposal and has concluded no agreements under Article 43 of the Charter which would entitle it to call on member States to provide them. The Security Council can, therefore, only authorise States to use military force. As Lord Bingham also concluded, the primacy clause in Article 103 of the Charter must also apply where a member State chooses to take up such an authorisation and contribute to an international peacekeeping operation under a Security Council mandate. To conclude otherwise would seriously undermine the effectiveness of the United Nations’ role in securing world peace and would also run contrary to State practice. Indeed, I do not understand the majority of the Grand Chamber in the present case to disagree with this analysis.

The point at which the majority part ways with the domestic courts is in finding that the language used in Resolution 1546 did not indicate sufficiently clearly that the Security Council authorised member States to use internment. I regret that I find the judgment of the House of Lords more persuasive on this issue. I consider that it is unrealistic to expect the Security Council to spell out in advance, in detail, every measure which a military force might be required to use to contribute to peace and security under its mandate. Internment is a frequently used measure in conflict situations, well established under international humanitarian law, and was, moreover, expressly referred to in the letter of Colin Powell annexed to Resolution 1546. I consider that it is clear from the text of the Resolution, and from the context where the Multinational Force was already present and using internment in Iraq, that member States were authorised to continue interning individuals where necessary.

It follows that I also agree with the House of Lords that the United Kingdom’s obligation to intern the applicant, pursuant to the Security Council authorisation, took precedence over its obligations under Article 5 § 1 of the Convention.