Monday, 1 February 2016

UK Supreme Court ~ more Iraq / Afghanistan litigation

Updated 17th January 2017 - The Supreme Court's judgment (Majority 7 to 2) and Press summary

The Al-Waheed appeal was dismissed and the Serdar Mohammed appeal allowed in part.


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Over the four days 1st to 4th February 2016, a bench of nine Justices of the Supreme Court heard two cases arising out of British military involvement in Iraq and Afghanistan.  The cases are:

Abd Ali Hameed Al-Waheed v Ministry of Defence (UKSC 2014/0219)

and

Serdar Mohammed, Yunus Rahmatullah and others v Ministry of Defence (UKSC 2015/0218)

(The recorded proceedings may be viewed via those links).

The conflicts in Iraq and Afghanistan have proved to be productive of a considerable volume of litigation and this has given rise to considerable political concern within government and elsewhere - please see previous posts of 26th January 2016 and 6th January 2016.



The issues in Al-Waheed are: Whether HM armed forces had the power to detain the appellant, on the ground that it was necessary for imperative reasons of security, pursuant to International Humanitarian Law applicable in a non-international armed conflict. If so, whether, in the context of a non-international armed conflict, art.5(1) of the ECHR should be read so as to accommodate, as permissible grounds, detention pursuant to a power to detain given by International Humanitarian Law. Whether the detention of the appellant, pursuant to the authorisation granted to the Multi-National Force by UN Security Council Resolution 1546 (2004) (as extended by 1637 (2005) and 1723 (2006)), was incompatible with art.5(1) of the ECHR.

In the Serdar Mohammed case the issues are:

1. Whether HM armed forces had legal power to detain the respondent in excess of 96 hours pursuant to UN Security Council Resolutions 1386 (2001), 1510 (2003) and 1890 (2009); and/or International Humanitarian Law applicable in a non-international armed conflict.  If so, whether art.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.

IAC and NIAC:

International law distinguishes International Armed Conflicts (IAC) from Non-international armed conflict (NIAC) - see this ICRC material  The situation in Afghanistan was a NIAC.   There is no doubt that in an IAC there is a power to detain prisoners of war and the Geneva Conventions apply.  However, in the Supreme Court, it was strongly argued that in a NIAC (where the Geneva Conventions do not apply) there is no power to detain. 

The International Committee of the Red Cross is striving to strengthen legal protections in NIAC - Detention in Non International Armed Conflict: The ICRC work on Strengthening  legal protection

Does "all necessary means" grant a power to detain individuals?

In relation to Afghanistan, the International Security Assistance Force (ISAF) was created by the UN Security Council under Article VII powers.  It will be noted that the relevant resolutions - e.g. UNSCR 1386 (2001) - authorise "all necessary means."   The wording in 1386 is particularly important - "Authorises the member States participating in the International Security Assistance Force to take all necessary means to fulfill its mandate."  Thus, it seems that the power to use all necessary means rests with the Member States.   It is certainly arguable that "all necessary means" includes a power to detain those considered by ISAF members to be dangerous for as long as is necessary.  Indeed, it might well be thought surprising if the phrase did not authorise detention of such individuals provided that they were properly treated during detention.  This argument will no doubt be deployed in relation to the 96 hours adopted by ISAF after which transfer of the detainee to the Afghan authorities was required - or (maybe) normally required.  If transfer proved not to be possible within 96 hours for some good reason then the "all necessary means" phrase might have authorised on-going detention until transfer became possible.

Was the detention permitted by Article 5?  

The extension of the ambit of the European Convention to situations such as Afghanistan came about following the decision of the European Court of Human Rights in Al-Skeini where Strasbourg held that the United Kingdom had violated Article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms by failing to perform an adequate investigation into the deaths of five Iraqi civilians who were killed in 2003, during British security operations in and around Basrah City.

Having extended territorial application of the convention, questions about the applicability of articles in the convention (such as Art 5) were bound to arise.  Art 5 gives a right to liberty and security of person.  Deprivation of liberty may not occur except on a ground contained in Art 5(1) and in accordance with a procedure specified by law - grounds (a) to (f).  An obvious example is following conviction by a court (ground a).  Art 5(4) requires a process to determine the lawfulness of any detention and Art 5(5) gives an enforceable right to compensation where detention is unlawful.  The problem is that detention under a UN Security Council resolution containing the words "all necessary means" is NOT included in the list in Art 5(1).  The government has therefore to seek justification for detaining these men by trying to argue that Art 5 has to be read so as to "accommodate" detention following a UNSCR. It may be that Article 103 of the UN Charter will assist the government - "In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail."  See the Al-Jedda case in the House of Lords at paragraphs 26 to 39.

It may also be that, in situations of armed conflict, it could be difficult to provide the type of process envisaged by Art 5(4) but that might depend on all the precise circumstances.  It would certainly not be a matter that the government could simply ignore.

References:

The following references may assist those trying to follow the case.  It is not a comprehensive list of authorities and, as observers of the court will know, there are extensive written submissions that the viewer does not get to see.

European Convention on Human Rights

United Nations Charter Chapter VII and United Nations Security Council Resolution

Interpretation of UN Security Council Resolutions  - previous post

Bonn Agreement 2001

International Security Assistance Force (ISAF) 2001-14

Operation Enduring Freedom related to Afghanistan and lasted from 7th October 2001 until 28th December 2014.  The UK withdrew its forces from Afghanistan from 26th October 2014.  See also HERE

International Humanitarian Law and also HERE

Military Manual 2004 and also see HERE

Captured in War: Internment in Armed Conflict - Els Debuf, Rene Cassin Institute of Human Rights 2013

Jean S Pictet - The Geneva Conventions of 12 August 1949


International Law Association - Report 2010 -Use of Force

2012 - Copenhagen Process on the handling of detainees in International military operations and for unhappiness at this see Amnesty International October 2012.

On 7 July 2011 the Grand Chamber of the European Court of Human Rights handed down judgments in Al-Skeini v United Kingdom (Application No. 55721/07) and Al-Jedda v United Kingdom (Application No. 27021/08). The judgments confirm that the UK Government’s human rights obligations are not limited to the territorial UK but can exceptionally extend overseas to situations in which British officials exercise ‘control and authority’ over foreign nationals.

Behrami v France and Seramati v France - a note - actions of a UN Force attributable directly to the UN

Al-Skeini case (55721/07)

Al-Jedda case [2007] UKHL 58

Al-Jedda v UK (27021/08)

Hassan v UK (29750/09) 

An interesting case at the Court of Justice of the EU was Council and Commission v Kadi 2013 where the court held that an EU regulation could be annulled even though it was made to implement within the EU a UN Security Council Resolution.

Baha Mousa Inquiry report - Sir William Gage

Boumediene v Bush 553 US 723 - discussed HERE - a Supreme Court of the USA decision relating to habeas corpus used to challenge detention at Guantanamo Bay.

International Committee of the Red Cross - Detention in Non International Armed Conflict: The ICRC work on Strengthening  legal protection


Parliament March 2014 - Defence Committee 12th Report

Judgments appealed:

1. High Court in Al-Waheed


2. Court of Appeal - Serdar Mohammed, on appeal from Leggatt J's decision in the High Court and discussed in this previous post dated 4th May 2014.   See also Leggatt J's decision in the Yunus Rahmatullah case at [2014] EWHC 3846 (QB).

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