Serdar Mohammed & Others v Secretary of State for Defence

JurisdictionEngland & Wales
JudgeLord Thomas of Cwmgiedd CJ,Lloyd Jones,Beatson LJJ
Judgment Date30 July 2015
Neutral Citation[2015] EWCA Civ 843
Docket NumberCase Nos: A2/2014/1862; A2/2014/4084; A2/2014/4086
CourtCourt of Appeal (Civil Division)
Date30 July 2015

[2015] EWCA Civ 843

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE ADMINISTRATIVE COURT

THE HON MR JUSTICE LEGGATT

[2014] EWHC 1369 (QB) and [2014] EWHC 3846 (QB)

Royal Courts of Justice Strand, London, WC2A 2LL

Before:

The Lord Chief Justice of England and Wales

Lord Justice Lloyd Jones

and

Lord Justice Beatson

Case Nos: A2/2014/1862; A2/2014/4084; A2/2014/4086

Between:
Serdar Mohammed & Others
Respondents
and
Secretary of State for Defence
Appellant
Yunus Rahmatullah & the Iraqi Civilian Claimants
Appellants
and
Ministry of Defence and Foreign and Commonwealth Office
Respondent

James Eadie QC, Samuel Wordsworth QC, Karen Steyn QC, Marina Wheeler (instructed by Treasury Solicitors) for the Ministry of Defence in Serdar Mohammed and for the Secretary of State for Defence in Qasim & others.

Richard Hermer QC, Ben Jaffey, Nikolaus Grubeck (instructed by Leigh Day) for the Respondent Serdar Mohammed

Shaheed Fatima, Paul Luckhurst (instructed by Public Interest Lawyers) for the Respondents Qasim, Nazim and Abdullah

Phillippa Kaufmann QC, Edward Craven (instructed by Leigh Day) for the Appellants (Rahmatullah and the Iraqi civilian claimants)

James Eadie QC, Karen Steyn QC, Ben Watson, Melanie Cumberland (instructed by Treasury Solicitors) for the Respondents in Rahmatullah (Ministry of Defence and Foreign and Commonwealth Office)

Derek Sweeting QC, James Purnell (instructed by Treasury Solicitors) for the Respondent in the Iraqi civilian claimants' case (Ministry of Defence)

Hearing dates: 9 – 13 February 2015

Further Submissions: 18 and 20 February; 2, 19, 20 and 31 March; 9, 22 and 30 April and 5 May 2015.

Approved Judgment

Para no

I THE ISSUES AND SUMMARY

1

(1) The main appeal

1

(a) The central issue

1

(b) The two bases of SM's claim

5

(c) The position of the Secretary of State

6

(d) Summary of our conclusions in relation to the main appeal

8

(2) The conjoined appeals

11

(a) The PIL claimants

12

(b) The claim by Yunus Rahmatullah, Anamatullah Ali and the Iraqi civilian claimants

17

(c) The issue on act of state in the claim by Yunus Rahmatullah and the Iraqi civilian claimants

23

(d) Our conclusion

27

(3) The organisation of the judgment

28

II THE FACTS, FACTUAL ASSUMPTIONS AND LEGAL ASSUMPTIONS

29

(1) The facts in relation to SM's claim

29

(a) The original involvement of HM armed forces in Afghanistan

29

(b) The Bonn Agreement

31

(c) UN Security Council Resolution 1386 of 2001; the establishment of ISAF

34

(d) The Military Technical Agreement of January 2002

36

(e) The command of ISAF

37

(f) The Memorandum of Understanding between the United Kingdom and Afghan Government made in 2006

41

(2) The factual assumptions as to the detention of SM

43

(3) The legal assumptions as to SM's claim

44

(4) The factual assumptions as to the claims by Yunus Rahmatullah and the Iraqi civilian claimants

46

III THE LIABILITY OF THE SECRETARY OF STATE ON BEHALF OF THE UNITED KINGDOM AND THE AVAILABILITY OF UNITED NATIONS IMMUNITY

49

(1) ATTRIBUTION TO ISAF/UN

50

(a) The facts in relation to the control over SM's detention

51

(b) The applicable legal principles: Behrami/Saramati and Al-Jedda

52

(c) The judge's decision

61

(d) Did the UN Security Council exercise the requisite control over ISAF?

62

(e) Did ISAF authorise SM's detention?

67

(f) Did ISAF consent by acquiescence to the United Kingdom's detention practice?

70

(2) CAN THE SECRETARY OF STATE INVOKE THE IMMUNITIES OF THE UN?

73

IV THE PUBLIC LAW CLAIM: THE SCOPE OF THE ECHR AND ITS RELATIONSHIP TO INTERNATIONAL HUMANITARIAN LAW

82

(1) THE SCOPE OF THE ECHR AS APPLIED TO HM ARMED FORCES IN AFGHANISTAN

83

(a) The judge's conclusion

84

(b) The decision of the Strasbourg Court in Bankovic

86

(c) The decision in Al-Skeini

91

(d) The acceptance by the Supreme Court of the decision in Al-Skeini

94

(e) The difficulties in complying with the ECHR in the course of military operations

95

(f) The differing position in Canada

98

(g) The judge's decision

99

(h) The scope of the Human Rights Act 1998

103

(i) Our conclusion

105

(2) THE RELATIONSHIP OF INTERNATIONAL HUMANITARIAN LAW AND INTERNATIONAL HUMAN RIGHTS LAW

107

(a) Decisions of the International Court of Justice

111

(b) The judge's decision in relation to international humanitarian law as lex specialis

114

(c) The decision of the Strasbourg Court in Hassan (September 2014)

116

(d) The extension of international humanitarian law to a non-international armed conflict

121

V THE PUBLIC LAW CLAIM: LAWFUL AUTHORITY TO DETAIN

125

(1) POWER TO DETAIN UNDER THE LAW OF AFGHANISTAN

127

(a) The relevance of the law of Afghanistan

127

(b) The judge's findings on Afghan law as regards the claim for unlawful detention

129

(c) The submission of the Secretary of State on the appeal

133

(d) Our conclusion

135

(2) THE POWER UNDER THE UNSCRS

138

(a) UNSCR 1890 of 2009

139

(b) The contention of the Secretary of State

142

(c) The judge's decision

143

(d) The scope of the authorisation to ISAF

146

(e) ISAF's detention policy

149

(f) The policy under which HM armed forces operated

153

(g) Did ISAF agree to that policy by acquiescence?

157

(h) Would the UK policy, if authorised by UNSCR 1890 of 2009, be a lawful derogation from Article 5 ECHR?

158

(3) POWER UNDER INTERNATIONAL HUMANITARIAN LAW

164

(a) Introduction

164

(i) The purpose of international humanitarian law

164

(ii) Two sources of international humanitarian law

165

(iii) Our approach to the Secretary of State's case

166

(b) Overview of the positions of the parties on international humanitarian law

167

(i) International armed conflict and non-international armed conflict distinguished

167

(ii) A third classification: an internationalised non-international armed conflict

170

(iii) The Secretary of State's case

174

(iv) The claimants' case

175

(v) The sources for the determination of the content of international humanitarian law

176

(c) Considerations supporting the judge's conclusions

178

(i) The omission from the Geneva Conventions of a power to detain in a non-international armed conflict

178

(ii) The role of domestic law in a non-international armed conflict

182

(iii) Academic commentaries

183

(iv) The UK Joint Service Manual

184

(d) Considerations supporting the Secretary of State's submissions

188

(i) A convergence of legal regimes in respect of international armed conflicts and non-international armed conflicts

188

(ii) The inapplicability of the domestic law of the troop contributing State

189

(iii) The fragmentation of legal regimes

190

(iv) The logic of international humanitarian law

193

(e) The overarching question

194

(f) Is it necessary to show a positive power to detain, or does an absence of prohibition suffice?

195

(g) The distinction between international humanitarian law derived from treaties and international humanitarian law derived from customary international law

199

(h) Implicit authority to detain derived from treaties: Common Article 3 and APII

200

(i) Implications from the language

200

(ii) The a fortiori implication from the nature and structure of international humanitarian law: the Catch-22 issue

205

(iii) Other "Catch-22" issues

213

(iv) Conclusion: no authority or power to detain under international humanitarian law derived from treaties

214

(i) Authority to detain derived from customary international law

220

(i) The requirements for the formation of customary international law

220

(ii) State practice and opinio juris

222

(iii) The Copenhagen principles

223

(iv) Post-hearing material about State practice

228

(v) Academic commentaries

235

(vi) The a fortiori argument in the context of customary international law

237

(vii) Conclusion: no authority or power to detain under international humanitarian law can be derived from customary international law

242

(j) Grounds of detention

245

(k) Conclusion on authority to detain derived from international humanitarian law

251

VI THE PUBLIC LAW CLAIM: PROCEDURAL SAFEGUARDS

254

(1) Introduction

254

(2) The procedures in the Detention Policies

255

(a) ISAF policy as set out in ISAF SOP 362

255

(b) The United Kingdom's Detention policy as set out in UK SOI J3–9

258

(3) The procedures used in SM's case

269

(4) The judge's decision

272

(5) The contentions of the parties as to the procedural requirements

274

(a) The Secretary of State's case

274

(b) The case of SM and the PIL claimants

277

(6) Our conclusions

280

(a) Introduction: the premise on which our conclusion is based

280

(b) The possible procedural safeguards

283

(c) Humane treatment and the right to be informed of the reason for detention

284

(d) The safeguard of a review of SM's detention by an impartial and objective authority

285

(e) Review of detention by an impartial and objective authority

287

(f) The opportunity of the detainee to participate in the reviews of his detention

293

(g) State practice as to reviews of detention

294

(h) The overall failure to meet the requisite procedural requirements

295

VII THE...

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4 books & journal articles
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    • University of Georgia School of Law Georgia Journal of International & Comparative Law No. 44-3, 2016
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  • State Jurisdiction and the Permissiveness of International Law: Is the Lotus Still Blooming?
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    • LSE Law Review No. 7-1, November 2021
    • 1 November 2021
    ...Law Volume 1: Peace (9th edn, Oxford University Press 1992) 12. 71 Serdar Mohammed & Others v Secretary of State for Defence [2015] EWCA (Civ) 843 [197]. 72 cf the definition of sovereignty provided by Max Huber in Island of Palmas (United States v The Netherlands), Reports of International......

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