“All Necessary Measures” to Avoid Fragmentation: Reflections on the UK Supreme Court’s 2017 Al-Waheed Decision

Abstract

This case note argues that the decision of the United Kingdom Supreme Court in Al-Waheed v Ministry of Defence [2017] AC 821 (‘Al-Waheed’) underscores the uncertainty that plagues the interaction between United Nations (‘UN’) Security Council resolutions (‘SCRs’) and international human rights law. It is argued that the Al-Waheed majority’s interpretation of the relevant SCRs with respect to Iraq and Afghanistan is correct, but would have benefited from more integration of fundamental principles of human rights law and a clearer interpretative framework. Similarly, while the majority took a pragmatic approach in adapting art 5 of the European Convention on Human Rights (‘ECHR’) to the circumstances of armed conflict, they avoided the pivotal significance of UN Charter art 103 and thereby missed an opportunity to strengthen the Court’s analysis of the interaction between the SCRs and the ECHR. The decision in Al‑Waheed prompts consideration of new possibilities for coherent, practical interpretations of international legal instruments: interpretations of SCRs that take account of fundamental, universal principles of human rights law; and interpretations of human rights treaties which recognise the primacy afforded to the Security Council in maintaining international peace and security.