Serdar Mohammed v Ministry of Defence

JurisdictionEngland & Wales
JudgeMr Justice Leggatt
Judgment Date02 May 2014
Neutral Citation[2014] EWHC 1369 (QB)
Docket NumberCase No: HQ12X03367
CourtQueen's Bench Division
Date02 May 2014

[2014] EWHC 1369 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Leggatt

Case No: HQ12X03367

Between:
Serdar Mohammed
Claimant
and
Ministry of Defence
Defendant
And Between:
(1) Mohammed Qasim
(2) Mohammed Nazim
(3) Abdullah
PIL Claimants
and
Secretary of State for Defence
Defendant

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

Bankovic v Belgium

121

The Al-Skeini case

123

Territorial scope of the Human Rights Act

125

The Al-Skeini case: scope of the Convention

127

Smith v Ministry of Defence

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

Mr Justice Leggatt

Introduction and Summary

1

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.

2

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.

3

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".

4

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.

5

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.

6

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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