United Kingdom’s High Court: Long-term detentions in Afghanistan illegal

On Friday the United Kingdom’s High Court, in the case of Serdar Mohammed v. Ministry of Defense (full text), handed down a judgment holding that the 110-day detention of a suspected Taliban commander by British forces in Afghanistan was unlawful. The case also involved three other claimants who were held by British forces upwards of 290 days during 2012-2013.

Justice George Leggatt held that the detention was unlawful under Article 5 of the European Convention on Human Rights, stating: “the mere fact that someone is reasonably believed to represent a security threat is not a justifiable ground for detention under Article 5(1), nor is detention permitted solely for the purpose of interrogation with a view to obtaining valuable intelligence.”

The court twice remarked that the conclusion that the detention was unlawful “will not come as a surprise” to the Ministry of Defense because its own internal documents “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.”

Those internal documents include a confidential Ministry of Defense memorandum, which is quoted at length in the opinion (para. 46). The confidential memorandum states:

The UK, US and Canada recognised as early as 2007 that 96 hours was detrimental to the overarching campaign: i.e. it severely limits opportunities for intelligence exploitation …

… The UK, following discussions between London, Kabul and Brussels, decided that any approach to NATO would be unsuccessful as the non-detaining nations, or detaining nations who didn’t conduct exploitation, would not agree to an extension to the 96 hour guideline due to political sensitivities.  In fact, there was a risk that reopening this debate may lead to a decrease in exploitation time in the ISAF Guidelines!” (exclamation point in the original)

The memorandum also goes on to state that “ISAF Legal Advisors were asked and helpfully confirmed that the ISAF SOPs were guidelines rather than a legal requirement.”

The court concluded that individuals who have been subject to such unlawful detention have a right to compensation, which British courts “are required to enforce.”

Stay tuned for further analysis of the opinion at Just Security. 

About the Author(s)

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016). You can follow him on Twitter @rgoodlaw.