Sunday 4 May 2014

Detention by British Forces in Afghanistan

Armed Forces of the United Kingdom have operated in Afghanistan since 2001.  They do so under the umbrella of the International Security Assistance Force (ISAF).  It is a very lengthy and controversial commitment which has cost many British lives.

Serdar Mohammed (SM) was detained in Afghanistan by British Forces for questioning.  The question arose as to the legality of his detention - BBC News 2nd May 2014   The case is Serdar Mohammed v Ministry of Defence and also Qasim, Nazim and Abdullah v Secretary of State for Defence.  The judgment of Mr Justice Leggatt is available via Bailii - [2014] EWHC 1369 (QB)

It is a lengthy judgment of 424 paragraphs but Leggatt J helpfully set out his conclusions in paragraphs 1 to 6 which are reproduced here:

Introduction and Summary
  1. The important question raised by this case is whether the UK government has any right in law to imprison people in Afghanistan; and, if so, what is the scope of that right. The claimant, Serdar Mohammed ("SM"), was captured by UK armed forces during a military operation in northern Helmand in Afghanistan on 7 April 2010. He was imprisoned on British military bases in Afghanistan until 25 July 2010, when he was transferred into the custody of the Afghan authorities. SM claims that his detention by UK armed forces was unlawful (a) under the Human Rights Act 1998 and (b) under the law of Afghanistan.

  2. As this is a long judgment which discusses many issues and arguments, I will summarise my conclusions at the start. This is, however, a bare summary only and the reasons for my conclusions are set out in the body of the judgment.

  3. UK armed forces have since 2001 been participating in the International Security Assistance Force ("ISAF"), a multinational force present in Afghanistan with the consent of the Afghan government under a mandate from the United Nations Security Council. Resolutions of the Security Council have: (1) recognised Afghan sovereignty and independence and that the responsibility for providing security and law and order throughout the country resides with the government of Afghanistan; (2) given ISAF a mandate to assist the Afghan government to improve the security situation; and (3) authorised the UN member states participating in ISAF to "take all necessary measures to fulfil its mandate".

  4. ISAF standard operating procedures permit its forces to detain people for a maximum of 96 hours after which time an individual must either be released or handed into the custody of the Afghan authorities. UK armed forces adhered to this policy until November 2009, when the UK government adopted its own national policy under which UK Ministers could authorise detention beyond 96 hours for the purpose of interrogating a detainee who could provide significant new intelligence. This UK national policy was not shared by the other UN member states participating in ISAF nor agreed with the Afghan government.

  5. SM was captured by UK armed forces in April 2010 as part of a planned ISAF mission. He was suspected of being a Taliban commander and his continued detention after 96 hours for the purposes of interrogation was authorised by UK Ministers. He was interrogated over a further 25 days. At the end of this period the Afghan authorities said that they wished to accept SM into their custody but did not have the capacity to do so due to prison overcrowding. SM was kept in detention on British military bases for this 'logistical' reason for a further 81 days before he was transferred to the Afghan authorities. During the 110 days in total for which SM was detained by UK armed forces he was given no opportunity to make any representations or to have the lawfulness of his detention decided by a judge.

  1. On the issues raised concerning the lawfulness of SM's detention I have concluded as follows:

  2. i) UK armed forces operating in Afghanistan have no right under the local law to detain people other than a right to arrest suspected criminals and deliver them to the Afghan authorities immediately, or at the latest within 72 hours. On the facts assumed in this case SM's arrest was lawful under Afghan law but his continued detention after 72 hours was not. ii) It is now clear law binding on this court: (a) that whenever a state which is a party to the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") exercises through its agents physical control over an individual abroad, and even in consequence of military action, it must do so in a way which complies with the Convention; and (b) that the territorial scope of the Human Rights Act coincides with that of the Convention. Accordingly, the Human Rights Act extends to the detention of SM by UK armed forces in Afghanistan.
    iii) In capturing and detaining SM, the UK armed forces were acting as agents of the United Kingdom and not (or at any rate not solely) as agents of the United Nations. The UK government is therefore responsible in law for any violation by its armed forces of a right guaranteed by the Convention.
    iv) Article 5 of the Convention, which guarantees the right to liberty, was not qualified or displaced in its application to the detention of suspected insurgents by UK armed forces in Afghanistan either (a) by the United Nations Security Council Resolutions which authorised the UK to participate in ISAF or (b) by international humanitarian law. Further, the authorisation given by the UN Security Council Resolutions to "take all necessary measures" to fulfil the ISAF mandate of assisting the Afghan government to improve security does not permit detention (a) outside the Afghan criminal justice system for any longer than necessary to deliver the detainee to the Afghan authorities nor (b) which violates international human rights law, including the Convention.
    v) ISAF detention policy is compatible with Article 5 of the Convention and falls within the authorisation given by the UN Security Council. SM's arrest and detention for 96 hours therefore complied with Article 5.
    vi) However, his subsequent detention did not. The UK government had no legal basis either under Afghan law or in international law for detaining SM after 96 hours. Nor was it compatible with Article 5 to detain him for a further 25 days solely for the purposes of interrogation and without bringing him before a judge or giving him any opportunity to challenge the lawfulness of his detention.
    vii) SM's continued detention by the UK for another 81 days for 'logistical' reasons until space became available in an Afghan prison was also unlawful for similar reasons and was not authorised by the UN Security Council. In addition, this further period of detention was arbitrary because it was indefinite and not in accordance with the UK's own policy guidelines on detention.
    viii) Accordingly, SM's extended detention for a total of 106 days beyond the 96 hours permitted by ISAF policy was not authorised by the UN mandate under which UK forces are present in Afghanistan and was contrary to Article 5 of the Convention.
    ix) In circumstances where his detention took place in Afghanistan, the law applicable to the question whether SM has suffered a legal wrong is Afghan law, which gives him a right to claim compensation from the UK government. However, the English courts will not enforce that claim in circumstances where SM's detention was an 'act of state' done pursuant to a deliberate policy of the UK government involving the use of military force abroad. SM therefore cannot recover damages in the English courts based on the fact that his imprisonment by UK forces was illegal under Afghan law.
    x) However, this 'act of state' defence does not apply to claims brought under the Human Rights Act for violation of a right guaranteed by the Convention. Article 5(5) of the Convention gives SM an "enforceable right to compensation" which the courts are required to enforce.
    xi) This decision will not come as a surprise to the MOD which formed the view at an early stage that there was no legal basis on which UK armed forces could detain individuals in Afghanistan for longer than the maximum period of 96 hours authorised by ISAF. I have found that this view was correct. Nothing happened subsequently to provide a legal basis for such longer detention, either under the local Afghan law, international law or English law. UK Ministers nevertheless decided to adopt a detention policy and practices which went beyond the legal powers available to the UK. The consequence of those decisions is that the MOD has incurred liabilities to those who have been unlawfully detained.

    A detailed analysis of this case may be read at E. MacKenzie, ‘The Lawfulness of Detention by British Forces in Afghanistan – Serdar Mohammed v Ministry of Defence’ U.K. Const. L. Blog (2nd June 2014)

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