Serdar Mohammed v Ministry of Defence
| Jurisdiction | England & Wales |
| Judge | Mr Justice Leggatt |
| Judgment Date | 02 May 2014 |
| Neutral Citation | [2014] EWHC 1369 (QB) |
| Docket Number | Case No: HQ12X03367 |
| Court | Queen's Bench Division |
| Date | 02 May 2014 |
[2014] EWHC 1369 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Leggatt
Case No: HQ12X03367
Richard Hermer QC, Ben Jaffey, and Nikolaus Grubeck (instructed by Leigh Day) for the Claimant
James Eadie QC, Karen Steyn QC, Sam Wordsworth QC and Marina Wheeler (instructed by Treasury Solicitors) for the Defendant
Michael Fordham QC, Shaheed Fatima, Hanif Mussa and Paul Luckhurst (instructed by Public Interest Lawyers) for the PIL Claimants
Hearing dates: 13 – 17 January 2014
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
| Section | Para Number |
| Introduction and Summary | 1 |
| I. THE CLAIM AND THE ISSUES | 8 |
| The preliminary issues | 11 |
| The trial | 15 |
| II. UK INVOLVEMENT IN AFGHANISTAN | 20 |
| The establishment of ISAF | 21 |
| UN extensions of ISAF's mandate | 30 |
| III. DETENTION POLICY IN AFGHANISTAN | 34 |
| ISAF's policy | 35 |
| UK detention policy | 38 |
| IV. AFGHAN LAW | 54 |
| The applicable law | 55 |
| The expert witnesses | 56 |
| The relevant questions | 62 |
| Approach to the evidence | 63 |
| Arguments from silence | 69 |
| Legality of detention | 72 |
| Status of the UNSCRs | 77 |
| Professor Lau's argument | 92 |
| Primacy of the Constitution | 98 |
| Conclusion on power of detention | 101 |
| Right to compensation | 103 |
| V. THE ARTICLE 5 CLAIM | 113 |
| VI. TERRITORIAL SCOPE OF THE CONVENTION | 116 |
| Article 1 | 120 |
| 121 | |
| The Al-Skeini case | 123 |
| Territorial scope of the Human Rights Act | 125 |
| The Al-Skeini case: scope of the Convention | 127 |
| 138 | |
| Jurisdiction in the present case | 141 |
| The MOD's argument | 144 |
| Conclusion | 147 |
| Dividing and tailoring | 149 |
| Article 15 | 153 |
| VI. RESPONSIBILITY FOR ACTS OF UK ARMED FORCES | 158 |
| The Behrami and Saramati cases | 159 |
| The Al-Jedda case | 164 |
| The MOD's argument | 169 |
| Are actions of ISAF attributable to the UN? | 171 |
| Is ISAF responsible for SM's detention? | 180 |
| VIII. UNITED NATIONS SECURITY COUNCIL RESOLUTIONS | 188 |
| The Al-Jedda case: decision of the House of Lords | 193 |
| The Al-Jedda case: decision of the European Court | 205 |
| To what extent is the House of Lords decision binding? | 208 |
| Did the UNSCRs confer a power to detain? | 218 |
| Was UK detention policy within the UN mandate? | 224 |
| Conclusions | 227 |
| IX. INTERNATIONAL HUMANITARIAN LAW | 228 |
| Armed conflicts | 229 |
| The conflict in Afghanistan | 231 |
| The MOD's arguments | 232 |
| Treaty law | 234 |
| Is there an implied power to detain? | 239 |
| Does a licence to kill imply a power to detain? | 252 |
| Customary international law | 254 |
| The Copenhagen Process | 262 |
| Conclusion | 268 |
| IHL as lex specialis | 269 |
| The meaning of the lex specialis principle | 273 |
| Total displacement | 274 |
| Does IHL prevail if it conflicts with the Convention? | 282 |
| Lex specialis as a principle of interpretation | 288 |
| Conclusion | 293 |
| X. WAS THERE A BREACH OF ARTICLE 5? | 295 |
| Core principles | 299 |
| Article 5(1): was SM's detention lawful? | 300 |
| Article 5(1): the requirement of certainty | 304 |
| Article 5(1): the purpose of detention | 310 |
| Article 5(1)(b): alleged obligation to detain | 311 |
| Articles 5(1)(c) and 5(3) | 315 |
| The first period: SM's arrest and first 96 hours of detention | 330 |
| The second period: SM's detention for 25 days for interrogation | 333 |
| The third period: SM's 'logistical' detention for 81 more days | 335 |
| Lack of prison capacity | 337 |
| Did detention reviews comply with Article 5(3)? | 341 |
| Divide and tailor | 343 |
| Article 5(1)(f): action taken with a view to "deportation or extradition" | 345 |
| Article 5(2) | 350 |
| Article 5(4): habeas corpus | 352 |
| Conclusions | 356 |
| XI. ACT OF STATE | 358 |
| Meaning of 'act of state' | 359 |
| The second Al-Jedda case | 362 |
| The present case | 372 |
| Separation of powers | 373 |
| Justiciability | 377 |
| Defence to a claim in tort | 385 |
| Colour of law | 398 |
| Habeas corpus | 402 |
| Is there a human rights exception? | 407 |
| Act of state: the Article 5 claim | 409 |
| XII. CONCLUSION | 417 |
Introduction and Summary
The important question raised by this case is whether the UK government has any right in law to imprison people in Afghanistan; and, if so, what is the scope of that right. The claimant, Serdar Mohammed ("SM"), was captured by UK armed forces during a military operation in northern Helmand in Afghanistan on 7 April 2010. He was imprisoned on British military bases in Afghanistan until 25 July 2010, when he was transferred into the custody of the Afghan authorities. SM claims that his detention by UK armed forces was unlawful (a) under the Human Rights Act 1998 and (b) under the law of Afghanistan.
As this is a long judgment which discusses many issues and arguments, I will summarise my conclusions at the start. This is, however, a bare summary only and the reasons for my conclusions are set out in the body of the judgment.
UK armed forces have since 2001 been participating in the International Security Assistance Force ("ISAF"), a multinational force present in Afghanistan with the consent of the Afghan government under a mandate from the United Nations Security Council. Resolutions of the Security Council have: (1) recognised Afghan sovereignty and independence and that the responsibility for providing security and law and order throughout the country resides with the government of Afghanistan; (2) given ISAF a mandate to assist the Afghan government to improve the security situation; and (3) authorised the UN member states participating in ISAF to "take all necessary measures to fulfil its mandate".
ISAF standard operating procedures permit its forces to detain people for a maximum of 96 hours after which time an individual must either be released or handed into the custody of the Afghan authorities. UK armed forces adhered to this policy until November 2009, when the UK government adopted its own national policy under which UK Ministers could authorise detention beyond 96 hours for the purpose of interrogating a detainee who could provide significant new intelligence. This UK national policy was not shared by the other UN member states participating in ISAF nor agreed with the Afghan government.
SM was captured by UK armed forces in April 2010 as part of a planned ISAF mission. He was suspected of being a Taliban commander and his continued detention after 96 hours for the purposes of interrogation was authorised by UK Ministers. He was interrogated over a further 25 days. At the end of this period the Afghan authorities said that they wished to accept SM into their custody but did not have the capacity to do so due to prison overcrowding. SM was kept in detention on British military bases for this 'logistical' reason for a further 81 days before he was transferred to the Afghan authorities. During the 110 days in total for which SM was detained by UK armed forces he was given no opportunity to make any representations or to have the lawfulness of his detention decided by a judge.
On the issues raised concerning the lawfulness of SM's detention I have concluded as follows:
i) UK armed forces operating in Afghanistan have no right under the local law to detain people other than a right to arrest suspected criminals and deliver them to the Afghan authorities immediately, or at the latest within 72 hours. On the facts assumed in this case SM's arrest was lawful under Afghan law but his continued detention after 72 hours was not.
ii) It is now clear law binding on this court: (a) that whenever a state which is a party to the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") exercises through its agents physical control over an individual abroad, and even in consequence of military action, it must do so in a way which complies with the Convention; and (b) that the territorial scope of the Human Rights Act coincides with that of the Convention. Accordingly, the Human Rights Act extends to the detention of SM by UK armed forces in Afghanistan.
iii) In capturing and detaining SM, the UK armed forces were acting as agents of the United Kingdom and not (or at any rate not solely) as agents of the United Nations. The UK government is therefore responsible in law for any violation by its armed forces of a right guaranteed by the Convention.
iv) Article 5 of the Convention, which guarantees the right to liberty, was not qualified or displaced in its application to the detention of suspected insurgents by UK armed forces in Afghanistan either (a) by the United Nations Security Council Resolutions which authorised the UK to participate in ISAF or (b) by international humanitarian law. Further, the authorisation given by the UN Security Council Resolutions to "take all necessary measures" to fulfil the ISAF mandate of assisting the Afghan government to improve security does not permit detention (a) outside the Afghan criminal justice system for any longer than necessary to deliver the detainee to the Afghan authorities nor (b) which violates international human rights law, including the Convention.
v) ISAF detention policy is compatible with Article 5 of the Convention and falls within the authorisation given by the UN Security Council. SM's arrest and detention for 96 hours...
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