Serdar Mohammed & Others v Secretary of State for Defence
| Jurisdiction | England & Wales |
| Judge | Lord Thomas of Cwmgiedd CJ,Lloyd Jones,Beatson LJJ |
| Judgment Date | 30 July 2015 |
| Neutral Citation | [2015] EWCA Civ 843 |
| Docket Number | Case Nos: A2/2014/1862; A2/2014/4084; A2/2014/4086 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 July 2015 |
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
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
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 CLAIMS IN TORT AND... |
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