Serdar Mohammed (Respondent) v Ministry of Defence (Appellant)
[2017] UKSC 2
Hilary Term
[2017] UKSC 2
On appeals from: [2014] EWHC 2714 (QB) and [2015] EWCA Civ 843
| JUDGMENT |
Abd Ali Hameed Al-Waheed (Appellant) v Ministry of Defence (Respondent) Serdar Mohammed (Respondent) v Ministry of Defence (Appellant)
before
Lord Neuberger, President
Lady Hale, Deputy President
Lord Mance
Lord Kerr
Lord Wilson
Lord Sumption
Lord Reed
Lord Hughes
Lord Toulson (1-4 Feb 2016)
Lord Hodge (26 Oct 2016)JUDGMENT GIVEN ON
17 January 2017
Heard on 1, 2, 3 and 4 February 2016 and 26 October 2016
Appellant (Al-Waheed) Respondent Richard Hermer QC James Eadie QC Andrew Clapham Derek Sweeting QC
Ben Jaffey Karen Steyn QC Alison Pickup James Purnell
Nikolaus Grubeck
(Instructed by Leigh Day)
(Instructed by The Government Legal
Department)
Respondent (S Appellant Mohammed)
Richard Hermer QC James Eadie QC Andrew Clapham Sam Wordsworth QC
Ben Jaffey Karen Steyn QC Alison Pickup Julian Blake
Nikolaus Grubeck
Julianne Kerr Morrison
(Instructed by Leigh Day)
(Instructed by The Government Legal
Department)
First Interveners
Shaheed Fatima QC
Paul Luckhurst
(Instructed by Public
Interest Lawyers)
Interveners 2-5 (Written
submissions only)
Jessica Simor QC
(Instructed Hogan Lovells
International LLP)
Interveners:
(1) Mohammed Qasim, Mohammed Nazim, Abdullah
(2) International Commission of Jurists
(3) Human Rights Watch
(4) Amnesty International
(5) The Open Society Justice InitiativeLORD SUMPTION: (with whom Lady Hale agrees)
Introduction
1. The United Kingdom was an occupying power in Iraq from May 2003, and a mandatory power acting in support of the Iraqi government from June 2004 until her withdrawal in 2011. She was a mandatory power in Afghanistan between December
2001 and her withdrawal early in 2015. In both countries, the United Kingdom’s
international status depended throughout on successive resolutions of the United Nations Security Council. Substantial numbers of British troops were engaged in both theatres as part of separate multi-national forces, primarily in southern Iraq and in the Afghan province of Helmand. They were required to deal with exceptional levels of violence by organised armed groups. In the course of their operations, prisoners were taken and detained in British military facilities for varying periods of time.
2. These two appeals arise out of actions for damages brought against the United Kingdom government by detainees, alleging unlawful detention and maltreatment by British forces. They are two of several hundred actions in which similar claims are made. In both cases, the claim is based in part on article 5(1) of the European Convention on Human Rights, which provides that no one shall be deprived of his liberty except in six specified cases and in accordance with a procedure prescribed by law. They also rely on article 5(4), which requires that the detainee should be entitled to take proceedings by which the lawfulness of his detention may be tested. The appeals have been heard together with a view to resolving one of the more controversial questions raised by such actions, namely the extent to which article 5 applies to military detention in the territory of a non-Convention state in the course of operations in support of its government pursuant to mandates of the United Nations Security Council.
3. Abd Ali Hameed Ali Al-Waheed was captured by HM forces at his wife’s
home in Basrah on 11 February 2007 during a search. The Secretary of State contends that components for improvised explosive devices (IEDs) and explosive charges and various other weaponry were found on the premises. He was held at a British army detention centre for six and a half weeks. He was then released after an internal review had concluded that a successful prosecution was unlikely, as there was no evidence that he had personally handled the explosives. At a pre-trial review
before Leggatt J, it was common ground that so far as Mr Al-Waheed’s claim was
based on detention in breach of article 5(1) of the Convention, the judge and the Court of Appeal would be bound to dismiss it by the decision of the House of Lords in R (Al-Jedda) v Secretary of State for Defence [2008] AC 332. The Appellate Committee had held in that case that article 5(1) was displaced by the United Nations Security Council Resolutions authorising military operations in Iraq. The judge was therefore invited to dismiss the claim under article 5(1) by consent and grant a certificate for a leap-frog appeal directly to the Supreme Court. A limited number of facts have been agreed, but there are no findings.
4. Serdar Mohammed, whom I shall refer to as “SM”, was captured by HM forces in Afghanistan on 7 April 2010. The Secretary of State contends that he was captured in the course of a planned operation involving a firefight lasting ten hours in which a number of men were killed or wounded, and that he was seen to flee from the site, discarding a rocket-propelled grenade launcher and ammunition as he went. He was brought into Camp Bastion at Lashkar Gah, which was the joint operating base of the British army in Helmand. Intelligence is said to have identified him shortly afterwards as a senior Taliban commander who had been involved in the large-scale production of IEDs and was believed to have commanded a Taliban training camp in 2009. SM was detained for a period of three and a half months in British military holding facilities until 25 July 2010, when he was transferred to the Afghan authorities. He was subsequently convicted by the Afghan courts for
offences relating to the insurgency and sentenced to ten years’ imprisonment. In his
case, the procedural history is more complicated. Leggatt J directed three preliminary issues to be determined on the assumption that the circumstances of
SM’s capture and detention, as pleaded in the Secretary of State’s defence, were
true. One of the preliminary issues concerned the relationship between article 5 of the Convention and the international law governing detention in the course of armed conflict. In the result, the judge held that in Afghanistan HM forces had no power, either under the relevant Security Council Resolutions or under customary international law, to detain prisoners for any longer than was required to hand them over to the Afghan authorities, and then for no more than 96 hours. He also found that they had no greater power under the domestic law of Afghanistan. On that footing, he considered that in detaining SM the United Kingdom was in breach of article 5(1) and (4) of the Convention: see [2014] EWHC 1369 (QB). The Court of
Appeal, although differing from some aspects of the judge’s reasoning, reached the
same conclusion: see [2016] 2 WLR 247. These decisions, and the reasoning behind them, have significant implications for the Ministry of Defence and for British troops deployed to Iraq or Afghanistan and indeed other theatres to which they may be deployed under UN mandates.
5. The Secretary of State formulated eight grounds on which he sought leave to appeal to the Supreme Court in Serdar Mohammed. He received permission to appeal, either from the Court of Appeal or from the Supreme Court on six of them, the question of permission for the other two being deferred until the hearing. As a result of directions given in the course of the appeals, the sole ground of appeal
before us at the opening of the hearing was the Secretary of State’s ground 4. In the
statement of facts and issues in Serdar Mohammed, the parties agreed that ground 4
raised the following issues:“(1) Whether HM armed forces had legal power to detain SM in excess of 96 hours pursuant to:
(a) the relevant resolutions of the United Nations Security Council; and/or
(b) International Humanitarian Law applicable in a non-international armed conflict.
(2) If so, whether article 5(1) of the ECHR should be read so as to accommodate, as permissible grounds, detention pursuant to such a power to detain under a UN Security Council
Resolution and/or International Humanitarian Law.”
In Al-Waheed, the parties are agreed that the same issues arise, except that the question is whether HM armed forces had power to detain Mr Al-Waheed at all, there being no separate issue relating to the first 96 hours.
6. In the course of the hearing the parties were invited to make written
submissions on two further questions arising in SM’s appeal about the scope of
article 5, which had been argued before Leggatt J and the Court of Appeal. This was
because it was considered to be unsatisfactory to examine the Secretary of State’s
ground 4 without regard to them. The additional questions substantially
corresponded to the Secretary of State’s grounds 5 and 6. They were:
“(3) Whether SM’s detention was compatible with article 5(1) on the basis that it fell within paragraph (c) of article 5(1) of the Human Rights Convention (detention for the purpose of bringing a suspect before a competent judicial authority) or article 5(1)(f) (detention pending extradition); and
(4) Whether the circumstances of his detention were compatible with article 5(4) of the Human Rights Convention
(if necessary, as modified).”
7. These are complex appeals raising distinct issues, which were argued in stages. They are also related to other appeals arising out of military operations in Iraq and Afghanistan which were before the court at the same time. For these reasons the argument has extended over an unusually long period, rather more than a year. The retirement of Lord Toulson in July 2016 meant that he did not sit on the oral argument on the procedural requirements of articles 5(1) and 5(4) of the Convention, and has been concerned only with the other issues. Lord Hodge, who sat for the first time on these appeals in October 2016 has been concerned only with those procedural issues.
International and Non-International Armed Conflict
8. International humanitarian law is the modern name for what used to be called the law of war and is still commonly called the law of armed conflict. It is a body of international law based on treaty and custom, which seeks to limit for humanitarian reasons the effects of armed conflict.
9. International humanitarian law distinguishes between international and non- international armed conflict. An international armed conflict is an armed conflict between states. A non-international armed conflict is an armed conflict between one or more states on the one hand and non-state actors on the other. In theory, it is the difference between an armed conflict of juridical equals and an armed conflict conducted by a lawfully constituted authority against organised rebels or criminals. The distinction is an ancient one. It dates back at least as far as Grotius (De Jure Belli ac Pacis I.4, III.6.27), who limited certain belligerent rights to public wars, on the ground that the rights of participants in civil wars were governed by municipal law administered by the municipal judge. But the crude distinction proposed by Grotius was never an adequate tool for dealing with the complex position of non- state actors. As Vattel pointed out a century later (Droit des Gens, III.18.293), civil wars break the bonds of society, leaving the parties without a common judge and in the same practical position as two nations.
10. Vattel made this point in support of his argument that once a civil war achieved a level of intensity on a par with an interstate war, the humanitarian customs of war should be observed by both sides. But ever since his day, there has been a tension between the desire of states to civilise the conduct of war by extending humanitarian rules to all armed conflicts, and their desire to treat their internal enemies as rebels and criminals rather than belligerents. International humanitarian law treats the parties to international armed conflicts as juridically equal and their rights and obligations as reciprocal. It proceeds on the basis that in such a conflict members of the armed forces of a state are reciprocally entitled to combatant immunity. They commit no offence by merely participating in the armed conflict, but only by committing war crimes proscribed by international law. Their detention is authorised on the footing that it is a purely administrative measure with no penal purpose, and must terminate when the armed conflict ends. However, notwithstanding the persistent advocacy of the International Committee of the Red Cross in favour of applying the same rules under both regimes, states have generally been reluctant to accept that a non-international armed conflict can be reciprocal in the same way as international armed conflicts. Their concern is that unless a special regime is devised for such conflicts, the corollary would be a recognition of the juridical equality of the participants and the immunity of non-state actors.
11. None the less, it is now accepted that the law of armed conflict cannot be confined to wars waged between states. A non-international armed conflict is an armed conflict for the purposes of international humanitarian law, albeit that it raises more difficult problems of definition and classification than an international armed conflict. The leading modern authorities are the decisions of the International Criminal Tribunal for Yugoslavia, whose jurisdiction depends on the existence of an armed conflict. They identify non-international armed conflicts by reference to their duration, their intensity and the degree of organisation of the non-state actors
engaged. In its widely cited decision in Prosecutor v Duško Tadić (Jurisdiction of
the Tribunal) ICTY Case No IT-94-1-AR72 (2 October 1995), the Tribunal held
(para 70) that an armed conflict existed “whenever there is a resort to armed force
between states or protracted armed violence between governmental authorities and
organised armed groups or between such groups within a state”, provided that it exceeds the “intensity requirements applicable to both international and internal
armed conflicts”. The intensity requirements were considered in greater detail in
Prosecutor v Ramush Haradinaj ICTY Case No IT-04-84-T (3 April 2008).
Indicative factors included (para 49):
“the number, duration and intensity of individual
confrontations; the type of weapons and other military equipment used; the number and calibre of munitions fired; the number of persons and type of forces partaking in the fighting; the number of casualties; the extent of material destruction; and the number of civilians fleeing combat zones. The involvement of the UN Security Council may also be a reflection of the
intensity of a conflict.”
In short, the test is whether the operations conducted by non-state actors are characteristic of those conducted by the armed forces of the state, as opposed to its police force. It is common ground that British troops in Afghanistan were engaged in an armed conflict.
12. The main distinction between international and non-international armed conflict lies in the more limited provision made for the latter in the main relevant treaties. Although the earliest Geneva Convention was adopted in 1864, no attempt was made to provide by treaty for non-international armed conflicts until the Geneva Conventions of 1949. Article 21 of the Third Geneva Convention of 1949 in terms confers on states a right to detain prisoners of war which they had long enjoyed as a matter of customary international law, and comprehensively regulates the conditions of their detention. Article 78 of the Fourth Geneva Convention confers on an occupying power a right to detain civilians in cases where this is considered
“necessary for imperative reasons of security.” But these provisions apply only in
international armed conflicts: see common article 2. The International Committee of the Red Cross had proposed that the Conventions of 1949 should apply in their entirety in international and non-international armed conflicts alike. But this proposal was rejected by most states. Instead, it was agreed to confer a more limited measure of protection by common article 3, which unlike the rest of the Conventions
applied “in the case of armed conflict not of an international character occurring in
the territory of one of the High Contracting Parties.” Common article 3 does not in
terms confer a right of detention. But it provides for the humane and non-
discriminatory treatment of “persons taking no active part in the hostilities,
including members of armed forces who have laid down their arms and those placed
hors de combat by sickness, wounds, detention or any other cause”. It specifically
prohibits the practice against such persons of violence, killing, mutilation, cruelty, torture, hostage-taking and outrages against their personal dignity, as well as the infliction of penal sentences upon them otherwise than by the judgment of a
“regularly constituted court affording all the judicial guarantees which are
recognised as indispensable by civilised peoples.” Further provision for the
treatment of prisoners in non-international armed conflicts is made by Protocol II, adopted in 1977 in cases where dissident armed forces or other armed groups control
part of the territory of a state so as to enable them “to carry out sustained and
concerted military operations and to implement this Protocol”: article 1.13. In those circumstances, the existence of a legal right in international law to detain members of opposing armed forces in a non-international armed conflict must depend on (i) customary international law, and/or (ii) the authority of the Security Council of United Nations.
14. To establish the existence of a rule of customary law, two things are required. First, there must be a uniform, or virtually uniform practice of states conforming to the proposed rule, reflected in their acts and/or their public statements; and, secondly, the practice must be followed on the footing that it is required as a matter of law (opinio juris). It follows that although the decisions of domestic courts may be evidence of state practice or of a developing legal consensus, they cannot themselves establish or develop a rule of customary international law: see Jones v Ministry of the Interior of the Kingdom of Saudi Arabia [2007] 1 AC 270 at para 63 (Lord Hoffmann). Lord Reed has dealt fully in his judgment with the question whether the detention of members of the opposing armed forces is sanctioned by customary international law in a non-international armed conflict. He concludes that as matters stand it is not, and I am inclined to agree with him about that. But for reasons which will become clear, I regard it as unnecessary to express a concluded view on the point. It is, however, right to make certain observations about it which bear on the construction of the relevant Security Council Resolutions.
15. The first is that, whether or not it represents a legal right, detention is inherent in virtually all military operations of a sufficient duration and intensity to qualify as armed conflicts, whether or not they are international. As the International Committee of the Red Cross has recently observed (Statement, 27 April 2015),
“deprivation of liberty is a reality of war. Whether detention is
carried out by states or by non-state armed groups, whether it is imposed on military personnel or on civilians, it is certain to
occur in the vast majority of armed conflicts.”
The same view was expressed by the Supreme Court of the United States in holding, in Hamdi v Rumsfeld 542 US 507 (2004), at p 10, that a power of detention was
implicitly conferred by a statute authorising the use of “all necessary and appropriate
force”:
“Detention of individuals falling into the limited category we
are considering [the Taliban and Al-Qaeda], for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an
exercise of the ‘necessary and appropriate force’ Congress has
authorized the President to use.”
It has been the practice of states to capture and detain members of the opposing armed forces throughout the recorded history of war. That includes its recent history, which has for the most part been a history of non-international armed conflicts. The purpose of any state participating in an armed conflict is to overcome the armed forces of the other side. At any time when the opposing forces are in the field, this necessarily involves disabling them from fighting by killing them or putting them hors de combat. The availability of detention as an option mitigates the lethal character of armed conflict and is fundamental to any attempt to introduce humanitarian principles into the conduct of war. In many cases, the detention of an enemy fighter is a direct alternative to killing him, and may be an obligation, for example where he surrenders or can be physically overpowered. As the majority of the US Supreme Court observed in Hamdi, at p 11, citing the earlier decision in In re Territo 156 F 2d 142, 145, (1946)
“The object of capture is to prevent the captured individual
from serving the enemy. He is disarmed and from then on must be removed as completely as practicable from the front, treated humanely, and in time exchanged, repatriated, or otherwise
released.”
16. Second, if there is nevertheless an insufficient consensus among states upon the legal right of participants in armed conflicts to detain under customary international law, it is not because of differences about the existence of a right of detention in principle. At their most recent international conference (Geneva, 8-10 December 2015), the constituent associations of the Red Cross and Red Crescent approved a resolution by consensus which recited that states had the power to detain
“in all forms of armed conflict” and proposing measures to strengthen the
humanitarian protection available to detainees. The lack of international consensus really reflects differences among states about the appropriate limits of the right of detention, the conditions of its exercise and the extent to which special provision should be made for non-state actors. There is no doubt that practice in international and non-international armed conflicts is converging, and it is likely that this will eventually be reflected in opinio juris. It is, however, clear from the materials before us that a significant number of states participating in non-international armed conflicts, including the United Kingdom, do not yet regard detention as being authorised in such conflicts by customary international law.
17. Third, if there were a right of detention on whatever legal basis, there are various conditions which might be imposed for its exercise. But if the right were to have any reality, it would at least have to apply in a case where detention was
“necessary for imperative reasons of security”, the test which article 78 of the Fourth
Geneva Convention (1949) applies to the right of an Occupying Power to detain civilians. This is the narrowest available test, and the one which has been proposed by the International Committee of the Red Cross. On these appeals, the Secretary of State does not contend for anything less.
The Security Council Resolutions
18. It is convenient to start with the position in Iraq.
19. At the time of Mr Al-Waheed’s detention, the relevant Security Council Resolution was 1723 (2006). This extended the authority conferred by Resolution 1546 (2004), which had marked the point at which Britain ceased to be an occupying power in Iraq and became a mandatory power acting in support of the newly formed indigenous government of Iraq. Articles 9 and 10 of Resolution 1546 (2004) reaffirmed the authorisation conferred by earlier resolutions for the multinational force to operate in Iraq, and conferred on it
“the authority to take all necessary measures to contribute to
the maintenance of security and stability in Iraq in accordance with the letters annexed to this resolution expressing, inter alia, the Iraqi request for the continued presence of the multinational force and setting out its tasks, including by preventing and deterring terrorism, so that, inter alia, the United Nations can fulfil its role in assisting the Iraqi people as outlined in para 7 above and the Iraqi people can implement freely and without intimidation the timetable and programme for the political process and benefit from reconstruction and rehabilitation
activities.”
The attached letters included a letter of 5 June 2004 from the US Secretary of State, which expressed the willingness of the United States to deploy forces to maintain internal security in Iraq. Their activities, he said
“include activities necessary to counter ongoing security
threats posed by forces seeking to influence Iraq’s political
future through violence. This will include combat operations against members of these groups, internment where this is
necessary for imperative reasons of security …”
20. R (Al-Jedda) v Secretary of State for Defence [2008] AC 332 arose out of the detention of the applicant by HM forces in Iraq in October 2004. Article 103 of the UN Charter provides that the obligations of members under the Charter should prevail over their obligations under any other international agreement. The main issue on the appeal was whether that meant that the Security Council Resolutions authorising military operations in Iraq displaced article 5 of the European Convention on Human Rights. This depended on whether detention in the course of those operations was an obligation, or merely a power. The House of Lords held that Resolution 1546 both authorised and required the exercise of a power of detention
where this was “necessary for imperative reasons of security”. Lord Bingham, with
whom the rest of the House agreed, gave three reasons for this. The first was that British forces occupying Iraq before Resolution 1546 came into effect had been authorised to intern persons for imperative reasons of security. This was because detention in those circumstances was authorised by the Hague Regulations (1907), and
“if the occupying power considers it necessary to detain a
person who is judged to be a serious threat to the safety of the public or the occupying power there must be an obligation to
detain such person.” (para 32)
Resolution 1546 was intended to continue the pre-existing security regime, not to
change it. Lord Bingham’s second reason was that although the resolution was
couched in permissive terms, this merely reflected the fact that the United Nations can invite but not require states to contribute forces for purposes such as the security of Iraq. Applying a purposive approach, and adopting the view of a substantial body of academic writing, he considered the exercise of that authority to be an obligation for those who accede to that invitation. The third reason was that those states which contributed forces became bound by articles 2 and 25 of the UN Charter to carry out the decisions of the Security Council so as to achieve its objectives. They were therefore bound to exercise the power of detention where this was necessary for imperative reasons of security. The decision of the Appellate Committee in Al-Jedda was rejected by the European Court of Human Rights when the matter came before them: Al-Jedda v United Kingdom (2011) 53 EHRR 23. I shall return to the implications of this decision below. But it was rejected only insofar as it treated the exercise of the power of detention as an obligation. It was not suggested that the exercise of the power of detention was not even authorised by the Security Council Resolution.
21. Turning to the position in Afghanistan, Security Council Resolution 1386
(2001) authorised the establishment of “an International Security Assistance Force
to assist the Afghan Interim Authority in the maintenance of security in Kabul and
its surrounding areas so that the Afghan Interim Authority … can operate in a secure environment.” It called on the International Security Assistance Force (“ISAF”) to
“work in close consultation with the Afghan Interim Authority in the
implementation of the force mandate”, and on member states to contribute personnel
and resources to ISAF. Article 3 “authorised member states participating in the
International Security Assistance Force to take all necessary measures to fulfil its
mandate.” The mandate was subsequently extended by Resolution 1510 (2003) to
the provision of security assistance for reconstruction and humanitarian efforts
throughout Afghanistan.22. At the time of SM’s detention, the most recent Security Council Resolution was 1890 (2009), which extended the mandate by twelve months and reaffirmed its earlier resolutions. Resolution 1890 contained a number of recitals which throw light
on the nature of ISAF’s role as it was then perceived to be and on the dangerous
character of its mission. The recitals recognised that the responsibility for providing security and law and order resided with the government of Afghanistan, and that the
mandate of ISAF was to “assist the Afghan government to improve the security situation.” What was meant by the “security situation” appears from a subsequent
recital expressing the Security Council’s strong concern about
“the security situation in Afghanistan, in particular the
increased violent and terrorist activities by the Taliban, Al- Qaida, illegally armed groups, criminals and those involved in the narcotics trade, and the increasingly strong links between terrorism activities and illicit drugs, resulting in threats to the local population, including children, national security forces
and international military and civilian personnel.”
The recitals go on to express concern about the high level of civilian casualties, and
“the harmful consequences of violent and terrorist activities by
the Taliban, Al-Qaida and other extremist groups on the capacity of the Afghan Government to guarantee the rule of law, to provide security and basic services to the Afghan people, and to ensure the full enjoyment of their human rights
and fundamental freedoms.”
They condemned
“in the strongest terms all attacks, including Improvised
Explosive Device (IED) attacks, suicide attacks and abductions, targeting civilians and Afghan and international forces and their deleterious effect on the stabilization, reconstruction and development efforts in Afghanistan, and condemning further the use by the Taliban, Al-Qaida and other
extremist groups of civilians as human shields.”
They recorded the Security Council’s support for ISAF’s work in improving the
security situation in Afghanistan in the face of these threats, and welcomed ISAF’s
intention
“to undertake continued enhanced efforts in this regard
including the increased focus on protecting the Afghan population as a central element of the mission, and noting the importance of conducting continuous reviews of tactics and procedures and after-action reviews and investigations in cooperation with the Afghan Government in cases where civilian casualties have occurred and when the Afghan
Government finds these joint investigations appropriate.”
23. Under article 24 of the United Nations Charter, the Security Council has
“primary responsibility for the maintenance of international peace and security”, and
under article 25 the member states of the UN have a duty to carry out its decisions in accordance with the Charter. The basis of the Security Council Resolutions in Iraq and Afghanistan was Chapter VII (Action with respect to Threats to the Peace, Breaches of the Peace and Acts of Aggression). This confers extensive powers on the Security Council to deploy force on its own account or call on its members to do so, and imposes on members corresponding duties to support these operations. Measures taken under Chapter VII of the United Nations Charter are a cornerstone of the international legal order. They are taken under a unique scheme of international law whose binding force is now well established. In Legal Consequences for States of the Continued Presence of South Africa in Namibia, Advisory Opinion [1971] ICJ Rep 16, paras 115-116, the International Court of Justice confirmed that these provisions are binding not only by treaty on members of the United Nations but as a matter of customary international law on the small number of states which are not members. In Kuwait Airways Corpn v Iraqi Airways Co (Nos 4 and 5) [2002] 2 AC 883, at para 115, Lord Steyn described them as
embodying a “principle of international public policy”. At para 114 he summarised
their status in the following terms:
“Not only has the Charter of the United Nations been adhered
to by virtually all states, that is 189 states, but even the few remaining non-members, have acquiesced in the principles of the Charter: American Law Institute, Restatement of the Law, The Foreign Relations of Law of the United States, 3d (1987), Section 102, comment (h). It is generally accepted that the principles of the United Nations Charter prohibiting the use of force have the character of jus cogens, ie is part of peremptory public international law, permitting no derogation: see Restatement, p 28, para 102, comment (k). Security Council Resolutions under Chapter VII of the Charter, and therefore the resolutions in question here, were binding in law on all
members including the United Kingdom and Iraq … It would
have been contrary to the international obligations of the United Kingdom were its courts to adopt an approach contrary to its obligations under the United Nations Charter and under
the relevant Security Council Resolutions.”
24. These considerations are recognised in the jurisprudence of the European Court of Human Rights in the same way as they are by other international courts and by the domestic courts of England. In Behrami v France; Saramati v France, Germany and Norway (2007) 45 EHRR SE10 at paras 148-149, the Strasbourg Court declined to review the compatibility of the acts of French, German and Norwegian troops operating under direct United Nations command. In doing so it
drew attention to the significance of the UN’s functions in conducting peacekeeping
operations or authorising member states to conduct such operations, and to the
special legal framework within which these functions were performed.
“148. … the primary objective of the UN is the maintenance
of international peace and security. While it is equally clear that ensuring respect for human rights represents an important contribution to achieving international peace (see the Preamble to the Convention), the fact remains that the UNSC has primary responsibility, as well as extensive means under Chapter VII, to fulfil this objective, notably through the use of coercive measures. The responsibility of the UNSC in this respect is unique and has evolved as a counterpart to the prohibition, now customary international law, on the unilateral use of force.
149. … Since operations established by UNSC Resolutions under Chapter VII of the UN Charter are fundamental to the mission of the UN to secure international peace and security and since they rely for their effectiveness on support from member states, the Convention cannot be interpreted in a manner which would subject the acts and omissions of contracting parties which are covered by UNSC Resolutions and occur prior to or in the course of such missions, to the scrutiny of the Court. To do so would be to interfere with the
fulfilment of the UN’s key mission in this field including, as
argued by certain parties, with the effective conduct of its operations. It would also be tantamount to imposing conditions on the implementation of a UNSC Resolution which were not provided for in the text of the Resolution itself. This reasoning equally applies to voluntary acts of the respondent States such as the vote of a permanent member of the UNSC in favour of the relevant Chapter VII Resolution and the contribution of troops to the security mission: such acts may not have amounted to obligations flowing from membership of the UN but they remained crucial to the effective fulfilment by the UNSC of its Chapter VII mandate and, consequently, by the
UN of its imperative peace and security aim.”
25. A Security Council Resolution adopted in the exercise of these responsibilities is not itself a treaty, nor is it legislation. But it may constitute an authority binding in international law to do that which would otherwise be illegal in international law. Sir Michael Wood, a former Principal Legal Adviser to the Foreign and Commonwealth Office, has made the point that Security Council Resolutions are not usually drafted by the Secretariat, but within the various national missions. For this reason they are not always clear or consistent either in themselves
or between one resolution and another: “The Interpretation of Security Council
Resolutions”, Max Planck Yearbook of United Nations Law [1998] 73. The meaning
of a Security Council Resolution is generally sensitive to the context in which it is made. In its advisory opinion of June 1971 on the Legal consequences for states of
the continued presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970) [1971] ICJ Rep 16, 53, para
114, the International Court of Justice observed:
“The language of a resolution of the Security Council should
be carefully analysed before a conclusion can be made as to its binding effect. In view of the nature of the powers under article 25 [which requires member states to carry out decisions of the Security Council], the question whether they have been in fact exercised is to be determined in each case, having regard to the terms of the resolution to be interpreted, the discussions leading to it, the Charter provisions invoked and, in general, all circumstances that might assist in determining the legal
consequences of the resolution of the Security Council.”
26. The expression “all necessary measures”, as used in a Security Council Resolution has, however, acquired a meaning sanctioned by established practice. It authorises the use of the full range of measures open to the United Nations itself for the purpose of maintaining or restoring international peace and security under Chapter VII of the Charter. This will normally involve the use of force under article 42, but subject to the requirement that the measures should be necessary. What is necessary depends primarily on the specific mandate, on the general context and on any conditions or limitations laid down in the resolution.
27. In Gill & Fleck’s valuable Handbook of the International Law of Military Operations (2010), at para 25.03, the opinion is expressed that although Security Council Resolutions do not as a rule authorise operational detention in so many
words, “a mandate to use ‘all necessary means’ to achieve the assigned tasks
logically encompasses operational detention as one such means, if indeed
necessary.” A similar approach was adopted by the European Court of Human
Rights in Behrami v France; Saramati v France, Germany and Norway, supra. In that case, the analysis of the legal responsibility of UN forces proceeded on the basis, accepted by the Court, that Security Council Resolution 1244 (1999), authorising military operations in Kosovo, implicitly authorised detention: see paras 124, 127. There was no express authority to detain. But it was deduced from the authority
conferred on troop-contributing nations by article 7 to take “all necessary means” to
fulfil certain responsibilities specified in article 9, including supporting the work of the international civil presence. In my opinion, that inference was inevitable, just as it is in relation to the corresponding operations in Iraq and Afghanistan. This point is not dependent on the categorisation of the relevant armed conflict as international or non-international.
28. In my opinion, it is clear that the authorisation given to troop-contributing states in Afghanistan by Resolution 1386 (2001) to use “all necessary measures”
included the detention of members of the opposing armed forces when this was required for imperative reasons of security. The nature of the mission, apparent from the context recited in Resolution 1890 (2009), involved operations of two kinds. The first entailed operations ancillary to the ordinary law enforcement processes of the Afghan government, essentially heavy police work. The second entailed armed combat with the forces of an organised insurrection, with a view to defending ISAF and its contingent forces, protecting the civilian population against the continual threat of violence, and creating a secure environment for the reconstruction of the Afghan state and the country generally. The distinction between these two functions broadly corresponds to the distinction made by UK military doctrine between (i)
military internment authorised either by the host state’s municipal law or by United
Nations Security Council Resolutions, and (ii) criminal detention in support of the national police force: see Joint Doctrine Publication 1-10 (Prisoners of War, Internees, Detainees, April 2006), at para 113. In performing functions in the former category they must be authorised to employ methods appropriate to military
operations. In short, if detention is “imperative” for reasons of security, it is must be
“necessary” for the performance of the mission.29. Leggatt J accepted this up to a point, but considered that it could authorise detention only for a very short period. His reason was that once a prisoner had been captured and disarmed, he no longer represented an imminent threat to the security of HM forces or the civilian population. His continued detention thereafter could not therefore be justified under the Security Council Resolutions. This seems a surprising conclusion and it was rejected, rightly to my mind, by the Court of Appeal. If a person is a sufficient threat to HM forces or the civilian population to warrant his detention in the first place, he is likely to present a sufficient threat to warrant his continued detention after he has been disarmed. Unless UK forces are in a position to transfer him for detention to the civil authorities for possible prosecution, the only alternative is to release him and allow him to present the same threat to HM forces or the civilian population. This necessarily undermines the
mission which constitutes the whole purpose of the army’s operations.
30. I conclude that in both Iraq and Afghanistan, the relevant Security Council Resolutions in principle constituted authority in international law for the detention of members of the opposing armed forces whenever it was required for imperative reasons of security. It was not limited to detention pending the delivery of the
detainee to the Afghan authorities. I say that this was the position “in principle”,
because that conclusion is subject to (i) in the case of SM the question whether that authority was limited to 96 hours by virtue of the detention policy of ISAF, and (ii) in the case of both SM and Mr Al-Waheed, the question whether the authority conferred by the relevant Security Council Resolutions was limited by article 5 of the European Convention on Human Rights.
The alleged limitation of detention to 96 hours in Afghanistan
31. This issue arises from differences between the detention policy applied generally by ISAF and that operated by United Kingdom forces and the forces of certain other troop-contributing nations in their own areas of operation. Both Leggatt J and the Court of Appeal concluded that although detention was in principle authorised by the Security Council Resolutions for imperative reasons of security,
in Afghanistan the duration of that detention was limited to 96 hours by ISAF’s
detention policy. In order to address this question, it is necessary to say something about the relationship between ISAF and the command structure of British forces in Afghanistan.
32. Overall command of ISAF was exercised by its commander in Afghanistan who was himself under the command of NATO at the relevant time. ISAF’s
detention policy was contained in its Standard Operating Procedures for detention (SOP 362). Paras 4-8 of SOP 362 provided that the only grounds on which a person might be detained were that detention was necessary for ISAF force protection, self- defence of ISAF or its personnel or the accomplishment of the ISAF mission. Detention was limited to 96 hours, after which the person must either be released or transferred to the Afghan authorities. That period could be extended on the specific authority of the ISAF commander or his delegate, or in a case where there were logistical difficulties about effecting his release or transfer within the 96 hour period.
33. Across Afghanistan there was a regional command structure with distinct task forces. Most British troops, including those who detained SM, were deployed in Helmand as part of Task Force Helmand. They operated there under their own national chain of command. British commanders in the field reported up their chain of command to UK Permanent Joint Headquarters, which in turn reported to the Ministry of Defence. The judge found that the conduct of operations in Afghanistan,
including detention policy, was regarded as United Kingdom “sovereign business”.
He described the relationship between the UK Detention Authority and the ISAF
chain of command as “one of liaison and coordination only”. The British position,
summarised in a military assessment report of September 2006, was that the United Kingdom was responsible for complying with its domestic and international legal obligations and that this required that responsibility for detention should rest with British officials. The judge found (para 181) that ISAF headquarters tacitly accepted this, and that thereafter detention decisions continued to be taken by British officials without involving ISAF. It was essentially for this reason that the judge and the Court of Appeal found that the United Kingdom and not the United Nations was
responsible for SM’s detention, a conclusion which is no longer challenged.
34. It is clear from the recitals in the successive Resolutions of the Security Council, culminating in Resolution 1890 (2009), that the level of violence increased over time and that the threat to the force and the civilian population from suicide attacks, improvised explosive devices and other extreme methods had become very serious by 2009. The evidence is that Helmand was one of the most difficult provinces. In these circumstances, the United Kingdom government became concerned that the 96 hour limit was unsatisfactory, primarily because in some cases it did not allow long enough for the prisoner to be interrogated with a view to acquiring valuable intelligence which was judged essential for mission accomplishment. This was unsatisfactory to the main detaining nations (identified as the United States, the United Kingdom, Canada and the Netherlands), but it was considered that agreement to a change would not be obtained from other detaining nations or from non-detaining nations. For these reasons, the United Kingdom decided in November 2009 to adopt its own detention policy. The UK policy was announced in Parliament on 9 November 2009: see Hansard (HL (Written Statements)), 9 November 2009, cols WS 31-32). The minister recorded that under ISAF guidelines, detainees were either transferred to the Afghan authorities within
96 hours for potential prosecution, or released. He said that “in the majority of cases,
UK forces will operate in this manner.” However, “in the light of the evolving threat
to our forces”, they would detain for longer periods those prisoners who
“can yield vital intelligence that would help protect our forces
and the local population - potentially saving lives, particularly when detainees are suspected of holding information on the placement of improvised explosive devices.
Given the ongoing threat faced by our forces and the local Afghan population, this information is critical, and in some cases 96 hours will not be long enough to gain that information from the detainees. Indeed, many insurgents are aware of the 96 hours policy and simply say nothing for that entire period. In these circumstances the Government have concluded that Ministers should be able to authorise detention beyond 96 hours, in British detention facilities to which the ICRC has access. Each case will be thoroughly scrutinised against the relevant legal and policy considerations; we will do this only where it is legal to do so and when it is necessary to support the
operation and protect our troops.”
The new policy was notified to NATO, which made no objection. The judge found that it was also accepted by ISAF headquarters.
35. The detention policy applied by HM forces in Afghanistan was contained in UK Standard Operating Instructions (SOI) J3-9 (Stop, Search and Detention Operations in the Herrick JOA), issued on the authority of UK Permanent Joint
Headquarters. It was originally issued in 2006. At the time of SM’s capture, the
version in force was Amendment 1, issued on 6 November 2009. This was replaced
on 10 April 2010, three days after SM’s capture, by Amendment 2, which was issued
to forces in the field two days later on 12 April. Since Amendment 2 was in force
for substantially the whole of the period when the judge found SM’s detention to
have been unlawful, I shall refer throughout to this version.
36. SOI J3-9 authorised British troops to “conduct stops, search, detention and
questioning procedures in accordance with [Security Council Resolutions] for
reasons of force protection, mission accomplishment and self-defence.” The
introduction sets out in general terms the principles governing detention policy. It
provided:“6. Detention Criteria. UK Forces are authorised to conduct stop, search, detention and question procedures in accordance with Reference A for reasons of Force Protection, Mission Accomplishment and Self-Defence. ISAF authorises detention for up to a maximum of 96 hours following the point
of detention …
7. Post-detention requirements. Within 96 hours detainees will in most cases be either handed over to the Afghan Authorities in accordance with [the UK/Afghan Memorandum of Understanding] or released. Detention and evidence-gathering processes must be managed as a capability to ensure that they support the collection of tactical intelligence and assist the Afghan criminal justice system in achieving
lawful convictions. In almost all cases, ‘Afghan Authorities’ in
this context refers to the National Directorate of Security (NDS) and it is to the NDS that transfers will normally be made
… Detainees should only ever be detained beyond 96 hours in
exceptional circumstances as follows:
a. On medical or logistic grounds, with HQ ISAF authorisation (and ministerial authority where
appropriate) …
b. With PJHQ and ministerial authority …”
37. Part I of SOI J3-9 dealt with the initial capture of a detainee. It provided:
“8. As in the case of stop and search, a person must only be detained if it is deemed necessary to do so. If items found during the search of the individual or any other factors indicate that he may be a threat to mission accomplishment, the call- sign or wider force protection, he should be detained. If items found relate purely to criminal conduct and do not threaten the accomplishment of the mission, there are no grounds for UK FE to detain. In such circumstances the individual should be
released and his details passed to the ANP … Force protection
must always be the primary concern in such situations.
9. Decision to Detain. UK FE can detain persons only if:
a. The person is a threat to force protection; and/or b. The person is a threat to mission accomplishment; and/or
c. It is necessary for reasons of self-defence.”
38. The view of the courts below was, in effect, that the United Kingdom had no power under the Security Council resolutions to adopt its own detention policy so far as that policy purported to authorise detention for longer than was permitted by
ISAF’s practice, even in the exceptional circumstances envisaged in SOI J3-9. This
was because they considered that the Security Council Resolutions conferred the authority to take all necessary measures on ISAF and not on troop-contributing nations. It followed that although British forces had their own chain of command
leading ultimately to ministers in London, compliance with ISAF’s detention policy
was a condition of any authority to detain conferred by the Security Council Resolutions. In my opinion they were mistaken about this. The Security Council Resolution has to be interpreted in the light of the realities of forming a multinational force and deploying it in a situation of armed conflict. ISAF is simply the expression used in the Resolutions to describe the multinational force and the central organisation charged with co-ordinating the operations of its national components
(“liaison and co-ordination”, to use the judge’s phrase). Resolution 1386 (2001)
provides for the creation of that force, but article 3 (quoted above) expressly confers
authority to take “all necessary measures” on the member states participating in it.
Both practically and legally, the British government remained responsible for the safety of its forces in Afghanistan and the proper performance of their functions, as the United States Supreme Court has recognised in the case of American forces participating in multinational forces under United Nations auspices: Munaf v Geren (2008) 533 US 674. ISAF was not authorised, nor did it purport to serve as the delegate of the Security Council for the purpose of determining what measures should prove necessary. It follows that the United Kingdom was entitled to adopt its own detention policy, provided that that policy was consistent with the authority conferred by the relevant Security Council Resolutions, ie provided that it did not purport to authorise detention in circumstances where it was not necessary for imperative reasons of security.
39. For these reasons, I conclude that the authority conferred by the Security Council Resolutions on Afghanistan to detain for imperative reasons of security, was not limited to 96 hours. I would have reached the same conclusion even if I had thought that the power to detain was conferred by the Security Council Resolutions on ISAF, as opposed to the troop-contributing nations. This is because, in agreement with Lord Mance and for the same reasons, I consider that the unchallenged evidence, accepted by the judge, shows that ISAF tacitly accepted the United
Kingdom’s right to adopt its own detention policy within the limits allowed by the
Resolutions.
Impact of the European Convention on Human Rights
40. All international human rights instruments include provisions which potentially affect the conduct of military operations in an armed conflict. Those which protect the rights to life and liberty are the most likely to be relevant. In the European Convention on Human Rights, these rights are protected by articles 2 and 5. Article 5 provides, so far as relevant:
“(1) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
…
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so.
…
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
…
(3) Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
(4) Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court
and his release ordered if the detention is not lawful.”
41. The enforcement of human rights has from its inception been a significant
part of the United Nations’ mission under its Charter. It is therefore appropriate to
construe Security Council Resolutions on the footing that those acting under their authority will respect the human rights of those with whom they deal, so far as that is consistent with the proper performance of the functions entrusted to them. But that qualification is important. In the first place, although it is axiomatic that under
a resolution authorising “all necessary measures”, the measures must be necessary,
ie required for imperative reasons of security, military operations will in the nature of things interfere with rights such as the right to life, liberty and property. Secondly, most if not all schemes of human rights protection assume a state of peace and basic standards of public order. This is particularly true of provisions protecting liberty, which are generally directed to penal and police procedures. They assume not just minimum levels of public order, but a judiciary with effective criminal jurisdiction and a hierarchy of state officials with a chain of responsibility. The rights which they protect cannot be as absolute in a war zone in the midst of a civil war, where none of these conditions necessarily obtains. Thirdly, Security Council Resolutions such as those authorising peacekeeping operations in Iraq and Afghanistan are addressed to every country in the world. They must be taken to mean the same thing everywhere. This means that they cannot be construed by reference to any particular national or regional code of human rights protection, such as the European Convention on Human Rights. The United Kingdom is a member of the Council of Europe and a party to the European Convention, but about 50 countries participated in ISAF many of which were not.
42. These considerations are particularly important when it comes to article 5 of the European Convention, which is unique among international codes of human rights protection in containing an exhaustive list of six grounds on which the law may authorise a deprivation of liberty. No other major international human rights instrument has this feature. In particular it is not a feature of the corresponding provision, article 9, of the International Covenant on Civil and Political Rights. The Covenant, which is an expansion in treaty form of the Universal Declaration of 1948, has been ratified by 167 states to date and may be regarded as the paradigm statement of internationally recognised human rights. Article 9.1 provides:
“Everyone has the right to liberty and security of person. No
one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in
accordance with such procedure as are established by law.”
The rest of article 9 is concerned with procedural safeguards. These include provisions for judicial supervision and a right of resort to a court to challenge the detention. No attempt is made to prescribe exhaustively the grounds on which the law may authorise detention, provided that those grounds do not amount to a licence for arbitrary detention. The attempt by the draftsmen of article 5 of the European Convention to codify the exceptions more precisely makes it unusually inflexible if applied according to its literal meaning in a situation of armed conflict. In some circumstances, some of the six grounds may adventitiously accommodate military detention. But as the Strasbourg court recognised in Hassan v United Kingdom (2014) 38 BHRC 358, para 97, they are not designed for such a situation and are not well adapted to it.
43. When the Security Council calls upon member states of the United Nations to participate in an armed conflict, the relevant source of human rights protection as far as the Security Council is concerned is not some particular code of human rights, let alone a national or regional one. It is the body of principle which applies as a matter of international law in armed conflicts. The laws of armed conflict are lex specialis in relation to rules laying down peace-time norms upon the same subjects. In the case of a non-international armed conflict, this includes Common Article 3 of the Geneva Conventions and, where it applies, Additional Protocol II. In Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion [1996] ICJ Rep 226, the International Court of Justice considered the interrelation between international humanitarian law and international human rights law, taking the International Covenant on Civil and Political Rights as the measure of the latter. Article 6 of the International Covenant on Civil and Political Rights provides that no one may be arbitrarily deprived of his life. At para 25 of its advisory opinion, the Court observed that
“the protection of the International Covenant of Civil and
Political Rights does not cease in times of war, except by operation of article 4 of the Covenant whereby certain provisions may be derogated from in a time of national emergency. Respect for the right to life is not, however, such a provision. In principle, the right not arbitrarily to be deprived
of one’s life applies also in hostilities. The test of what is an
arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities. Thus whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to article 6 of the Covenant, can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of
the Covenant itself.”
Referring to these observations in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, [2004] ICJ Rep 136, the International Court of Justice said, at para 106:
“As regards the relationship between international
humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law. In order to answer the question put to it, the Court will have to take into consideration both these branches of international law, namely human rights
law and, as lex specialis, international humanitarian law.”
Cf Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) Judgment, [2005] ICJ Rep, 168, para 216. As a study group of the United Nations International Law Commission has observed, “when lex specialis is
being invoked as an exception to the general law, then what is being suggested is that the special nature of the facts justifies a deviation from what otherwise would
be the ‘normal’ course of action”: Fragmentation of International Law: Difficulties
Arising from the Diversification and Expansion of International Law (2006) A/CN.4/L.682. These observations, which were made in the context of article 6 of the International Covenant on Civil and Political Rights, are equally true of the prohibition in article 9 of the Covenant of arbitrary detention or detention otherwise than in accordance with law. Article 9, like article 6, applies in hostilities. But the question what is arbitrary or in accordance with law in an armed conflict cannot be answered in the same way as it would be in peacetime.
44. International humanitarian law does not specifically authorise detention in a non-international armed conflict. But, as I have explained, the relevant Security Council Resolutions did authorise detention, and international humanitarian law regulates its consequences on the assumption that it is an inevitable feature of state practice. In that respect, the Resolutions served the same function in a non- international armed conflict as the authority to detain under article 21 of the Third Geneva Convention does in an international armed conflict. It conferred an authority in international law to detain in circumstances where this was necessary for imperative reasons of security.
45. The next question is how these considerations can live with the European Convention when troops are contributed to a United Nations multinational force by a member state of the Council of Europe. The European Convention is not easy to apply to military operations outside the national territory of a contracting state. Article 2(2)(c) provides that the right to life is not infringed when it results from necessary action taken to quell an insurrection, but there is no corresponding provision for killing in the course of an international armed conflict. Article 5 of the European Convention, as I have observed, lists the permissible occasions for a deprivation of liberty in terms which take no account of military detention in the course of an armed conflict, whether international or non-international. In the case of an armed conflict on the national territory of the member state concerned, these problems may be resolved by resort to article 15, which permits derogation from (among others) article 2 in respect of deaths resulting from lawful acts of war and
from article 5 generally. But derogation under article 15 is permitted only “in time of war or other public emergency threatening the life of the nation”. Like Lord
Bingham of Cornhill in R (Al-Jedda) v Secretary of State for Defence [2008] AC
332, para 38, I am inclined to think that “the nation” in article 15 means the nation
seeking to derogate. It cannot, as Leggatt J suggested, mean Iraq or Afghanistan. It is of course theoretically possible that an armed conflict outside the United Kingdom might threaten the life of the British nation. The fighting in France in 1939-40 could no doubt have been so described. But it is difficult to imagine any circumstances in which this would be true of an armed conflict abroad in which UK armed forces were engaged as part of a peacekeeping force under the auspices of the United Nations.
46. In Bankovic v Belgium (2001) 44 EHRR SE5, the European Court of Human Rights rejected an argument that a Convention state’s obligation under article 1 to secure to “everyone within their jurisdiction” the rights and freedoms secured by
Section I, could apply to those affected by military operations conducted abroad, unless they occurred in the territory of another Convention state or in a non- Convention territory where a Convention state exercised effective governmental control. Two features of the reasoning are particularly significant for present
purposes. The first was the Court’s view that the rights protected by Section I of the
Convention were a total package. It could not be “divided and tailored in accordance
with the particular circumstances of the extra-territorial act in question” (para 73).
The Convention could not therefore be applied in a non-Convention territory where the Convention state in question was not in a position to apply it as a whole. The second significant feature of the reasoning concerned the relationship between the Convention and international law generally. In Behrami v France; Saramati v France, Germany and Norway (2007) 45 EHRR SE10 at para 122, the Court cited the decision in Bankovic in support of the broader proposition that
“the principles underlying the Convention … must … take into
account relevant rules of international law when examining questions concerning its jurisdiction and, consequently, determine state responsibility in conformity and harmony with the governing principles of international law of which it forms
part, although it must remain mindful of the Convention’s
special character as a human rights treaty.”
The principle thus stated corresponds to the ordinary principle on which treaties are interpreted, taking into account any relevant rules of international law: see Vienna Convention on the Law of Treaties, article 31(3)(c).
47. In Al-Skeini v United Kingdom (2011) 53 EHRR 18, the Grand Chamber adopted what was widely regarded as a radically different approach. The Convention was held to apply, so far as relevant, to extra-territorial military operations in any case where the agents of a Convention state exercised control and authority over an individual, even if they did not exercise governmental powers in the place where the relevant operations occurred. The procedural requirements of article 2 were accordingly applied to the deaths of Iraqi citizens in the course of firefights with British troops. The implications of this for the conduct of military operations were apparent from the Grand Chamber’s judgment in Al-Jedda v United Kingdom (2011)
53 EHRR 23, which was delivered on the same day as Al-Skeini. The Strasbourg court, rejecting the prior decision of the House of Lords, held that in the absence of a derogation under article 15 military detention in the course of an armed conflict outside the national territory of a Convention state contravened article 5, because it could not be brought within any of the six permitted occasions for detention in article 5(1). It rejected the submission that under article 103 of the UN Charter, UN member states had an obligation to give effect to resolutions of the Security Council which prevailed over obligations under the European Convention. This was because the relevant Security Council Resolution left the choice of methods to the multinational
force in Iraq. In the absence of sufficiently specific language the Security Council’s
authorisation to use “all necessary measures” did not therefore create an obligation
to detain even if it created a power to do so. The Strasbourg court reached a similar conclusion in two cases arising out of Security Council Resolutions imposing sanctions on specified individuals: Nada v Switzerland (2012) 56 EHRR 18, and Al- Dulimi and Montana Management Inc v Switzerland (Application No 5809/08) (judgment delivered 21 June 2016). In both cases article 103 of the United Nations Charter was held to be inapplicable because the sanctions resolutions left enough discretion to member states to fall short of an obligation.
48. In equating the application of physical force with the exercise of jurisdiction, the decision of the Strasbourg court in Al-Skeini was consistent with the opinion of the United Nations Human Rights Committee, which has treated extraterritorial kidnappings as exercises of state jurisdiction: see Lopez Burgos v Uruguay (Case No C-52/79) (1981) 68 ILR 41 and Lilian Celiberti de Casariego v Uruguay (Case No C-56/79) (1981) 68 ILR 29. The principle in Al-Skeini was also adopted by this court in Smith v Ministry of Defence [2014] AC 52, in the admittedly rather different
context of the state’s duties to its own soldiers. But it goes substantially further than
the jurisprudence of the International Court of Justice, which has thus far recognised the extraterritorial application of human rights treaties only in cases where governmental powers are exercised by a state in the course of a military occupation of foreign territory: see Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, [2004] ICJ Rep 136, para 109;
Armed Activities on the Territory of the Congo (Democratic Republic of the Congo
v Uganda) Judgment, [2005] ICJ Rep 168, para 216. It also gives rise to serious
analytical and practical difficulties, when applied to a state’s treatment of enemy
combatants outside its own territory, because the practical effect is to apply the Convention to any extra-territorial exercise of force. This is not consistent with the essentially regional character of the Convention. It goes well beyond the ordinary concept of extra-territorial jurisdiction in international law, which is generally confined to territory where the state is the governmental authority or occupying power and to enclaves of national jurisdiction such as ships, aircraft, military establishments or diplomatic premises. It thereby requires a Convention state to apply its terms in places where it has no effective administrative control and no legal right to effective administrative control. It brings the Convention into potential conflict with other sources of international law such as the Charter and acts of the United Nations, as well as with the municipal law of the territory in question. It requires the application of the Convention to the conduct of military operations for which it was not designed and is ill-adapted, and in the process cuts across immunities under national law which may be fundamental to the constitutional division of powers, as they arguably are in the United Kingdom. The ambit of article 1 of the Convention is a matter of particular sensitivity to any Convention state. At
the level of international law, by defining the extent of the Contracting Parties’
obligation to give effect to its provisions, it identifies the limits of what they have agreed in an altogether more fundamental sense than the following articles which set out the rights protected. At the level of municipal law, the authority of the courts to apply the Convention is a creature of the Human Rights Act 1998. It is ultimately a matter for the courts of the United Kingdom to decide the territorial ambit of the obligation of public authorities under section 6 to act compatibly with the Convention. In doing so it will in accordance with established principle assume that
the legislature intended to act consistently with the United Kingdom’s treaty
obligations. It will not depart from the interpretation of those obligations by the European Court of Human Rights without very good reason. But it cannot in the last resort be bound by the view of the Strasbourg court on that question if it is satisfied that that view goes beyond what Parliament has enacted. As Lord Neuberger and Lord Mance observed of the European Communities Act 1972 in R (Buckinghamshire County Council) v Secretary of State for Transport [2014] 1 WLR 324, para 207, there may be fundamental principles, whether contained in other constitutional instruments or recognised at common law, whose abrogation Parliament neither contemplated nor authorised.
49. The particular application of the principle in Al-Skeini by the Strasbourg court in Al-Jedda gives rise to further difficulties of its own. It caused consternation among those concerned with the enforcement of international humanitarian law, because it appeared to undermine its role in armed conflicts as well as the efficacy of international peacekeeping operations. In an influential article in the International
Review of the Red Cross (“The European Court of Human Rights’ Al-Jedda judgment: the oversight of international humanitarian law”, (2011) 93 IRRC 837),
Jelena Pejic, the Legal Adviser in the Legal Department of the International Committee of the Red Cross and a distinguished authority in this field, criticised the decision on the grounds (i) that it required authority to detain in armed conflicts to be specifically conferred by the language of a Security Council Resolution, when the relevant lex specialis in international law was the Geneva Conventions; and (ii) that to make detention an obligation of powers participating in an armed conflict would restrict their discretion in a way which would be operationally counter-
productive and “hardly a human-rights-friendly outcome” (pp 847-848). “For the
moment”, she concluded (p 851),
“Al-Jedda casts a chilling shadow on the current and future
lawfulness of detention operations carried out by ECHR states abroad. In addition, their ability to engage with other, non- ECHR, countries in multinational military forces with a
detention mandate currently remains, at best, uncertain.”
50. It is, however, unnecessary to explore these problems any further in the present case, because of the relatively narrow basis on which Al-Jedda was argued and decided and because of the development of the jurisprudence of the Strasbourg court since it was decided. Al-Jedda was presented as a case of conflicting obligations. The argument in the Strasbourg court proceeded, as it had done in the House of Lords, on the footing that there was an irreconcilable conflict between the Security Council Resolutions and article 5 of the European Convention, one of which must be displaced by the other: see para 105. By declining to treat military detention as an obligation, as opposed to a discretionary power, the court was able
to treat article 5 as consistent with the United Kingdom’s obligations under the UN
Charter. But, in the light of later developments, perhaps the most significant feature of the decision in Al-Jedda was that it marked a clear (though unacknowledged) departure from the principle stated in Bankovic that the Convention could not be
“divided and tailored” for particular situations and had to be applied on an all or
nothing basis. It thereby opened the possibility of a partial or modified application of the Convention to the extra-territorial acts of Convention states. In particular, some adaptation of the Convention might be required by the international law context in which those acts occurred: see paras 76, 102. This suggests that a more fruitful approach in Al-Jedda would have been to reconcile the terms of the Convention with those of the Security Council Resolutions by adapting the former to the situation created by the latter.
51. This was the step which the Grand Chamber ultimately took in Hassan v United Kingdom (2014) 38 BHRC 358, a decision which was considered by the Court of Appeal but unfortunately appeared too late to be taken into account by
Leggatt J. The facts were that the applicant’s brother had been detained by British
forces in Iraq for a period of nine days. When it was ascertained that he was a civilian who posed no threat to security, he was released. This happened in 2003, immediately after the invasion of Iraq by coalition forces, at a stage when the armed
conflict was international in character. Hassan’s detention did not fall within any of
the six cases specified in article 5(1) where detention might be permitted, and he had no effective access to a court for the purposes of article 5(4). The Grand Chamber none the less held that there was no violation of article 5. It rejected the argument that article 5 was displaced, as it had in Al-Jedda, but held that it fell to be adapted to a context in which international humanitarian law provided the relevant safeguards against abuse. The judgment calls for careful study.
Later correspondence dated 10, 21 and 24 August 2010 considered the possibility that the ISAF rules of detention might be altered, but concluded that any approach to NATO would be unsuccessful, and that the United Kingdom would have to adopt its own policy if it wished to detain individuals for more than 96 hours.
338. The policy then adopted, as announced to Parliament on 9 November 2009, was that while HM Forces would adhere to NATO guidelines (ie, the SOP) in the majority of cases, Ministers in the United Kingdom would in some cases authorise detention for more than 96 hours in order to obtain intelligence:
“[I]n exceptional circumstances, detaining individuals beyond
96 hours can yield vital intelligence that would help protect our forces and the local population - potentially saving lives, particularly when detainees are suspected of holding information on the placement of improvised explosive devices.
Given the ongoing threat faced by our forces and the local Afghan population, this information is critical, and in some cases 96 hours will not be long enough to gain that information from the detainee. Indeed, many insurgents are aware of the 96 hours policy and simply say nothing for that entire period. In these circumstances, the Government have concluded that Ministers should be able to authorise detention beyond 96 hours, in British detention facilities to which the ICRC has access. Each case will be thoroughly scrutinised against the relevant legal and policy considerations; we will do this only where it is legal to do so and when it is necessary to support the operation and protect our troops.
Following a Ministerial decision to authorise extended detention, each case will be thoroughly and regularly monitored by in-theatre military commanders and civilian advisers. Individuals will not remain in UK detention if there is no further intelligence to be gained. We will then either release the detainee or transfer the detainee to the Afghan
authorities.” (Hansard (HL (Written Statements), 9 November
2009, cols WS 31-32)
339. The policy announced to Parliament was reflected in J3-9. The version of J3- 9 which was in force during most of Mr Mohammed’s detention was Amendment
2. Part 1 dealt with the initial stages of detention. It stated in para 9 that a person could be detained by British forces only if he was a threat to force protection or mission accomplishment, or if it was necessary for reasons of self-defence.
340. Part II dealt with the processing of detainees, and required the detaining authority to decide within 48 hours whether to release, transfer or further detain the detainee. To authorise continued detention, the Detention Authority had to be satisfied that it was necessary for self-defence or that the detainee had done something that made him a threat to force protection or mission accomplishment (para 19). Para 25 stated that the Detention Authority did not have the authority to hold a detainee for longer than 96 hours from the point of detention, and that authority for any further detention must be sought from Ministers through the
Detention Review Committee (“DRC”). Para 27 stated that the criteria used to assist
Ministers in deciding whether or not to approve applications for extension of detention were
“a. Will the extension of this individual provide significant new intelligence vital for force protection?
b. Will the extension of this individual provide significant new information on the nature of the insurgency?
c. How long a period of extension has been requested - [redacted]”
Para 29 set out the procedure to be followed following an extension. This involved fortnightly reviews, internally and at Ministerial level.
341. The only other nations whose forces were detaining significant numbers of insurgents by that stage of ISAF operations were the USA and Canada (the Netherlands having been the fourth nation in that category at an earlier stage). They also departed from the ISAF policy limiting detention to a maximum of 96 hours, but on a different basis from the United Kingdom. The USA authorised its conduct by domestic legislation. Canada entered into an agreement with the Afghan Government providing for it to treat detainees as if they were prisoners of war, and thus to apply the Third Geneva Convention.
342. An internal assessment dated 18 September 2011 described the United
Kingdom’s current detention regime in Afghanistan as being “based upon United Kingdom national sovereignty”. Afghanistan was however a sovereign state at the
relevant time; and it was inconsistent with Afghan sovereignty for the United Kingdom to carry out detention in Afghanistan without the permission of the government of that country. The judge found that the United Kingdom policy was not agreed with the Afghan Government, and that there was no evidence that any attempt was made to amend the Memorandum of Understanding between the British and Afghan Governments to reflect the new policy.
The legal basis of detention for intelligence purposes
343. The judge concluded that the United Kingdom policy announced in November 2009 had no legal basis under Afghan, international or English law. In relation to Afghan law, he considered that, since the United Kingdom Government was operating on the territory of an independent sovereign state at the invitation of, or at least with the consent of, that state, it was arguable that it was necessary under article 5(1) for the detention to comply with the law of that state. On the basis that there had been no argument on the point, however, he proceeded on the assumption that it was sufficient that there was a basis for the detention under the SCR (para 301). The Court of Appeal considered it unnecessary to decide the point (para 126). The point has however been pursued before this court on behalf of the first interveners, who had also raised it in their skeleton argument before the judge.
344. As they point out, the European court has said many times that, where the lawfulness of detention is in issue, including the question whether a procedure
“prescribed by law” has been followed, the Convention refers essentially to national
law and lays down an obligation to conform to the substantive and procedural rules of national law. The same approach has been followed by the UN Human Rights Committee in relation to article 9 of the ICCPR. They also point out that that approach has been adopted, specifically in relation to detention in a non- international armed conflict, in the Report of the UN Working Group on Arbitrary
Detention, “Basic Principles and Guidelines on remedies and procedures on the right
of anyone deprived of their liberty to bring proceedings before a court”, UN Doc
WGAD/CRP.1/2015 (2015), Guideline 17, para 115(a)(ii) (“With regard to
detention in relation to a non-international armed conflict: (a) ... the detaining State must show that: ... (ii) administrative detention is on the basis of grounds and procedures prescribed by law of the State in which the detention occurs and
consistent with international law”).
345. I am not persuaded that that is the correct approach to adopt to the application of the Convention in the present context. Guidance is provided by the judgment in Ocalan v Turkey (2005) 41 EHRR 45, which concerned the arrest of a Turkish citizen in Kenya by Turkish officials who then transferred him to Turkey. The court considered it irrelevant to examine whether the conduct of the officials had been unlawful under Kenyan law: what mattered was whether their conduct had been authorised by the Kenyan Government, so as to provide a basis in international law for an extra-territorial arrest, and had a legal basis under Turkish law. The court stated:
“Irrespective of whether the arrest amounts to a violation of the
law of the state in which the fugitive has taken refuge - a
question which only falls to be examined by the court if the host
state is a party to the Convention - the court requires proof in the form of concordant inferences that the authorities of the state to which the applicant has been transferred have acted extra-territorially in a manner that is inconsistent with the sovereignty of the host state and therefore contrary to international law. Only then will the burden of proving that the sovereignty of the host state and international law have been
complied with shift to the respondent Government.” (para 60;
emphasis supplied)
346. So far as international law and English law are concerned, I agree with the
judge’s conclusion, which is consistent with the legal advice given to the British
Government at the time. The practice of detaining persons for more than 96 hours for intelligence purposes, rather than transferring them to the Afghan authorities for the purpose of criminal investigations and proceedings, was not authorised by SCR
1890, interpreted as explained in para 325 above. The grounds for the person’s being
detained by HM Forces, rather than being transferred to the Afghan authorities for criminal investigation and prosecution, did not fall within any of those listed in sub- paras (a) to (f) of article 5(1) of the Convention. Indeed, even leaving article 5(1)
out of account, the phrase “necessary for imperative reasons of security” in the SCR
did not authorise detention for the purpose of obtaining intelligence from the detainee. In addition, the policy did not respect Afghan sovereignty, having been introduced without the agreement of the Afghan Government, and without any amendment of the Memorandum of Understanding. Since the detention during that period was not authorised by SCR 1890, it was, on that basis also, not lawful for the purposes of article 5(1).
Detention pending the availability of space in Afghan facilities
347. As explained at para 332 above, the Memorandum of Understanding, read with the SOP, permitted detention to be extended beyond 96 hours where necessary to enable the detainee to be transferred in safe circumstances. Provision for
“logistical extensions” was also made by para 24 of J3-9:
“On some occasions, practical, logistic reasons will entail a
requirement to retain a UK detainee for longer than the 96 hours. Such occasions would normally involve the short-notice non-availability of pre-planned transport assets or NDS [Afghan National Security Directorate] facilities to receive transferred detainees reaching full capacity. These occasions may lead to a temporary delay until the physical means to transfer or release correctly can be reinstated. Where this is the case, authority to extend the detention for logistic reasons is to be sought from both HQ ISAF and from Ministers in the UK
through the Detention Authority.”
348. In the event, HM Forces held people for substantial periods when the Afghan authorities wished to accept their transfer but the detention facilities were full, or when the only accommodation available was in facilities which were considered unsuitable. This situation arose as a result of three factors. One was the fact that Afghanistan remained a state under reconstruction, with limited detention facilities. The second was the large number of insurgents captured by HM Forces, particularly during operations in Helmand. The third was the fact that the treatment of detainees in some Afghan detention facilities did not meet Convention standards. It was indeed held by the Divisional Court, during the period when Mr Mohammed was detained pending the availability of space in the Afghan detention facility at Lashkar Gah, that it would be unlawful for HM Forces to transfer detainees to the Afghan detention facility in Kabul: R (Evans) v Secretary of State for Defence [2010] EWHC 1445 (Admin).
349. The judge accepted, in relation to Mr Mohammed, that his detention in these circumstances was for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence. The implication is that such detention fell in principle within the scope of article 5(1)(c) of the Convention. That conclusion has not been challenged: as the Court of Appeal noted, the question has not been explored at any stage of the proceedings. I am inclined to agree with the judge, and to regard such detention as in principle authorised by SCR 1890, but in the absence of any argument on the point it would be inappropriate to consider the issue in detail.
350. There are, however, other aspects of article 5 which are also relevant to detention in these circumstances: notably, the requirement in article 5(1) that
detention be “in accordance with a procedure prescribed by law”, and the procedural
requirements of article 5(3) and (4). It will be necessary to return to these.
Application to the facts of Mr Mohammed’s case351. On the facts of the case, Mr Mohammed’s detention by HM Forces between
11 April 2010 (ie after 96 hours) and 4 May 2010 (when he ceased to be held for intelligence purposes) was not in my view compatible with article 5(1), since it was not for any of the purposes listed in sub-paras (a) to (f). In particular, the reason for his detention at that time was not to bring him as a suspect before a competent judicial authority, within the meaning of article 5(1)(c). Nor was he, either then or later, detained pending extradition within the meaning of article 5(1)(f), for the reasons explained by Lord Sumption at para 79.
352. Even if SCR 1890 were to be construed as going beyond article 5(1)(a) to (f), and as authorising detention when necessary for imperative reasons of security, I
would not regard it as authorising Mr Mohammed’s detention during this period.
Although I accept that detention for imperative reasons for security would not become unauthorised by reason of a concurrent purpose of obtaining intelligence, it appears to me to be clear from the facts found by the judge that the obtaining of intelligence was the only reason why HM Forces detained Mr Mohammed during the period in question, rather than enquiring of the Afghan authorities whether they wished to have him transferred to their custody. That was not a reason for detention
falling within SCR 1890. Nor was Mr Mohammed’s detention during this period in
accordance with the commitment in SCR 1890 to respect Afghan sovereignty, since
it was based on a policy to which the Afghan Government had not agreed.353. I respectfully disagree with Lord Sumption’s conclusion that there remains a
question whether Mr Mohammed’s detention between 11 April and 4 May 2010 was
for imperative reasons of security, which should be determined after trial. The grounds for his initial detention clearly fell within the scope of that phrase, but it seems to me to be clear that this was not the reason why he continued to be detained by HM Forces after 11 April. As the judge observed at para 333 of his judgment, not only was the obtaining of intelligence the sole purpose alleged in the Secretary
of State’s defence, but there was no other criterion set out in the UK policy which
could have been used to approve an extension of Mr Mohammed’s detention at that
time (the availability of space in Afghan detention facilities not having been investigated). Furthermore, as the Court of Appeal noted at para 250 of its judgment, according to the evidence given on behalf of the Ministry of Defence, Mr
Mohammed’s continued detention beyond 96 hours was “for the purposes of intelligence exploitation” and “was not assessed to be necessary for force protection
purposes”.
354. In relation to the period of detention between 5 May and 25 July 2010, the judge found that, although the circumstances of the detention fell within the scope of article 5(1)(c) of the Convention, there was a violation of the requirement in article 5(1) that the detention should be in accordance with a procedure prescribed by law. In that regard, he held (para 309) that detention for lengthy periods (82 days in the case of Mr Mohammed, and between 231 and 290 days in the cases of the interveners) was not authorised by para 24 of J3-9. Alternatively, he held that if that para 24 did authorise detention for such protracted periods, then it failed to meet the test of legal certainty implicit in the requirement that detention be in accordance with a procedure prescribed by law, since it failed to provide standards which were clearly defined and whose application was reasonably foreseeable.
355. I recognise the force of that reasoning. I also recognise the importance of legal certainty, especially in this context. The European court referred in Hassan to
“the fundamental purpose of article 5(1), which is to protect the individual from
arbitrariness” (para 105). In Medvedyev v France, the court stated:
“... where deprivation of liberty is concerned, it is particularly
important that the general principle of legal certainty be satisfied. It is therefore essential that the conditions for deprivation of liberty under domestic and/or international law be clearly defined and that the law itself be foreseeable in its
application, so that it meets the standard of ‘lawfulness’ set by
the Convention, a standard which requires that all law be
sufficiently precise to avoid all risk of arbitrariness ...” (para
80)
356. Nevertheless, it is also necessary to recognise the practical exigencies of the situation which confronted HM Forces at the time, and to endeavour to apply the Convention in a manner which is feasible in the real world. The terms of para 24 of J3-9 suggest that it was originally envisaged as a basis for accommodating occasional logistical problems, normally arising at short notice and leading to a temporary delay. It did however provide a procedure for extending detention which could be used when more serious and long-term problems emerged in relation to the capacity of the Afghan authorities to deal satisfactorily with large numbers of insurgents and suspected insurgents, in the context of a state undergoing reconstruction. In principle, the provision by a member of ISAF of detention facilities on behalf of the Afghan authorities, when they were unable to cope, was within its mandate under SCR 1890. In the nature of things, the duration of such detention in individual cases could not be predicted, particularly when it depended on contingencies, such as the willingness of the Afghan authorities to treat detainees humanely, and the outcome of legal proceedings in the English courts, which lay wholly outside the control of HM Forces and the Ministry of Defence. It is also relevant to note that para 24 of J3-9 required the detention to be authorised by HQ ISAF as well as by UK Ministers. It was therefore consistent with para 8 of the SOP, and hence with the Memorandum of Understanding.
357. In these circumstances, it appears to me that the basic requirement that there should be a procedure prescribed by law was satisfied by J3-9.
358. I agree with Lord Mance that, in considering Mr Mohammed’s claim for
damages for wrongful detention, it is highly material to consider whether, but for any failures on the part of the United Kingdom authorities, he would have been any better off - in other words, would have spent less time in custody. That is an important question both in relation to the period during which Mr Mohammed was held by HM Forces for the purpose of obtaining intelligence, and in relation to the period during which he was held because of the unavailability of suitable accommodation in an Afghan detention facility. Further, as Lord Mance observes, if the answer is that he would have been in the custody of the Afghan authorities, it will be material to consider whether this would have involved him in any form of detriment.
359. Finally, in relation to article 5(3) and (4) of the Convention, I agree with Lord
Sumption’s conclusions, and with the core of his reasoning at paras 94-109. Whether
there was a breach of article 5(3) should be considered after trial. It is however apparent from the material already before the court that the arrangements for Mr
Mohammed’s detention were not compatible with article 5(4), since he did not have
any effective means of challenging the lawfulness of his detention.
Conclusions
360. For these reasons, I would have allowed Mr Al-Waheed’s appeal and
declared that it was legally necessary for his detention to fall within one or more of sub-paragraphs (a) to (f) of article 5(1). In agreement with the judge and the Court
of Appeal, I would have dismissed the Secretary of State’s appeal in the case of Mr
Mohammed, so far as based on the grounds considered at this stage.
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