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Published online by Cambridge University Press: 20 January 2017
1 Al-Jedda v. United Kingdom, App. No. 27021/08 (Eur. Ct. H.R. July 7, 2011), 50 Ilm 950 (2011). Judgments and decisions of the Court are available online at http://www.echr.coe.int.
2 Nov. 4, 1950, ETS No. 5, 213 UNTS 222.
3 Al-Jedda had sought and received asylum in the United Kingdom in 1992 and was granted British citizenship in 2000. On December 14, 2007, the home secretary revoked that citizenship. Al-Jedda’s appeal against this decision was unsuccessful. Following his release from immigration detention in the United Kingdom on December 30, 2007, he traveled to Turkey.
4 SC Res. 1546, para. 10 & annex (June 8, 2004) (annex containing letters by Iraqi prime minister Alawi and U.S. secretary of state Powell).
5 Human Rights Act, 1998, c. 42 (Eng.).
6 See Orakhelashvili, Alexander, Case Report: R (on the Application of Al-Jedda) (FC) v. Sec’y of State for Defence, in 102 AJIL 337 (2008 CrossRefGoogle Scholar).
7 R (on the Application of Al-Jedda) (FC) v. Sec’y of State for Defence, [2007] UKHL 58, paras. 22-24, [2008] 1 A.C. 332 (H.L.) (appeal taken from Eng.).
8 Id., paras. 30-34.
9 Id., paras. 33-34.
10 Id., para. 39.
11 Behrami v. France, Joined App. Nos. 71412/01 & 78166/01 (Eur. Ct. H.R. May 2, 2007).
12 Id., para. 133.
13 para. 135.
14 Id., paras. 138, 140.
15 Id., para. 139.
16 Id., paras. 121, 141; see also id., paras. 29-31. For the draft Articles on the Responsibility of International Organizations, with Commentaries, see Text of the Draft Articles with Commentaries Thereto, in Report of the International Law Commission [ILC], Sixty-Third Session 69, UN Gaor, 66th Sess., Supp. No. 10, UN Doc. A/66/10 (2011) [hereinafter Draft articles].
17 Article 7 (formerly Article 5) of the Draft articles, supra note 16, provides that the conduct of an organ of a state placed at the disposal of an international organization should be attributable under international law to the organization if it exercises “effective control” over that conduct.
18 Id., para. 10, at 90-91; ILC, Seventh Report on Responsibility of International Organizations, paras. 26, 30, UN Doc. A/Cn.4/610 (Mar. 27, 2009); Court of Appeal, The Hague, July 5, 2011, No. Ljn: Br 5388, para. 5.8 (Nuhanović/Netherlands), at Int’l L. Domestic Cts. 1742 (Nl 2011), http://zoeken.rechtspraak.nl/detailpage.aspx?ljn=Br5388 (both Eng. trans.) (rejecting “ultimate authority and control” standard); see also Bodeau-Livinec, Pierre, Buzzini, Gionata P., & Villalpando, Santiago, Case Report; Agim Behrami & Bekir Behrami v. France; Ruzhdi Saramati v. France, Germany & Norway, in 102 AJIL 323, 327–28 (2008) CrossRefGoogle Scholar; Messineo, Francesco, The House of Lords in Al-Jedda and Public International Law: Attribution of Conduct to Un-Authorized Forces and the Power of the Security Council to Displace Human Rights, 56 Neth. Int’l L. Rev. 35, 43 (2009)CrossRefGoogle Scholar; Orakhelashvili, supra note 6, at 341-42.
19 Behrami, para. 151.
20 See Draft articles, supra note 16, Arts. 19, 63; ILC, Fifty-Seventh Session, Topical Summary of the Discussion Held in the Sixth Committee of the General Assembly Prepared by the Secretariat 6, para. 13, UN Doc. A/CN.4/ 549 (Jan. 31, 2005); see also Bodeau-Livinec, Buzzini, & Villalpando, supra note 18, at 328 -30; Nollkaemper, André, Dual Attribution: Liability of the Netherlands for Conduct of Dutchbat in Srebrenica, 9 J. Int’l Crim. Just. 1143, 1152-53 (2011)CrossRefGoogle Scholar.
21 See Milanovic, Marko, Al-Skeini, and Al-Jedda, in Strasbourg, 23 Eur. J. Int’l L. 121 (2012)CrossRefGoogle Scholar. Dual attribution was recently recognized by the Hague Court of Appeal in Nuhanoviċ. Applying the ILC’s effective control test, as provided in Article 5 (now Article 7) of the Draft articles, supra note 16, that court found that the Netherlands—a troop-contributing nation to Unprofor—was responsible for expelling four Bosnian nationals from the protected compound of a Dutch battalion under the command of the UN peacekeeping force after the fall of Srebrenica, which resulted in their being killed as part of the genocide by the Bosnian Serbs. Nuhanović, para. 5.20. The court noted that the possibility that more than one party may have effective control is generally accepted, and held that “it cannot be ruled out that the application of this criterion results in the possibility of attribution to more than one party.” Id., para. 5.9. This judgment is currently on appeal before the Dutch Supreme Court. See Nollkaemper, supra note 20.
22 Messineo, supra note 18, at 43-46; see also Milanovic, supra note 21.
23 See Zgonec-Rožej, Miša, Kafka, Sisyphus, and Bin Laden: Challenging the Al Qaida and Taliban Sanctions Regime, 8 Essex Hum. Rts. Rev. 69 (2011)Google Scholar, available at http://projects.essex.ac.uk/ehrr/V8N1/Zgonec-Rozej.pdf.
24 Cf. Case C-84/95, Bosphorus Hava Yollari Turizm ve Ticaret As v. Minister for Transp., Energy & Commc’ns, 1996 ECR I-3953; Joined Cases C-402/05 P & C-415/05 P, Kadi v. Council, 2008 ECR I-6351 ; UN Human Rights Comm!, Sayadi v. Belgium, Communication No. 1472/2006, UN Doc. CCPR/C/94/D/1472/ 2006 (Dec. 29, 2008) (all reviewing the lawfulness of the measures giving effect to UN Security Council resolutions but not applying Charter Article 103).
25 See Zgonec-Rožej, supra note 23, at 74.
26 See Akande, Dapo, The Security Council and Human Rights: What Is the Role of Article 103 of the Charter?, EJIL: Talk! (Mar. 30, 2009)Google Scholar, at http://www.Ejiltalk.org.
27 Nada v. Switzerland, App. No. 10593/08 (Eur. Ct. H.R. relinquishment filed Oct. 20, 2010).
