Last week the High Court of England and Wales, per Mr Justice Leggatt, delivered a comprehensive judgment in Serdar Mohammed v. Ministry of Defence [2014] EWHC 1369 (QB). The case affirms that Mr. Mohammed was captured by UK armed forces during a military operation in northern Helmand province in Afghanistan on April 7, 2010. He was imprisoned on British military bases in Afghanistan until July 25, 2010, when he was transferred into the custody of the Afghan authorities. Mr. Mohammed claimed that his detention by UK armed forces was unlawful (a) under the Human Rights Act 1998 and (b) under the law of Afghanistan. In the course of a wide-ranging, technically proficient and detailed judgment, Justice Leggatt surveyed an assortment of international law rules and practices including international humanitarian law, international human rights law, lex specialis, the legal status of UN Security Council Resolutions, doctrines of state responsibility and the Act of State doctrine. A number of the Court’s conclusions have been addressed here and here. My reflections address how this judgment “fits” within the broader mosaic of European Court of Human Rights (ECtHR) jurisprudence on Article 5 and Article 15, namely, the liberty and derogation provisions of the European Convention.

The Court found that the Ministry of Defence (MoD) breached multiple legal standards in Afghanistan, including English law, Afghan law, and human rights legislation. Notably, in addressing fundamental doctrinal questions of international law and their relationship to British domestic norms the Court is almost completely reliant on various public international law cases pursued on behalf of Iraqi civilians in domestic courts or the ECtHR over the last ten years or more. The judgment makes important reading not least for the intersectional analysis of various bodies of domestic and international law and the fine-grained analysis of the relationship between them. The Court asked and answered a series of questions.

First, did the UK’s Human Rights Act 1998 apply outside the territory of the UK and Northern Ireland and, thus, in Afghanistan? Justice Leggatt held it did, relying on the case of Al-Skeini, House of Lords, June 2007.

Second, did the European Convention on Human Rights (ECHR) apply outside Europe and, thus, in Afghanistan? Justice Leggatt held it did, relying on the case of Al-Skeini, ECtHR, Grand Chamber, July 2012.

Third, were the actions of the UK, as part of ISAF, attributable to the UK or the UN? Justice Leggatt held they were attributable to the UK, relying on the case of Al-Jedda, ECtHR, Grand Chamber, July 2011.

Fourth, were the rights of Article 5 of the European Convention (the right not to be arbitrarily detained and to due process) displaced by the operation of the various UN Security Council Resolutions forming the mandate in Afghanistan since October 2011? Judge Leggett held not, relying on the Grand Chamber decision in Al-Jedda (above).

Fifth, were the rights of Article 5 otherwise displaced or qualified by the operation of International Humanitarian Law (IHL)? Judge Leggett maintained that Article 5 remained the core and relevant norm relying on a range of international law sources.

Detention: A Predictable Path

Justice Leggatt found that Article 5 of the Convention 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.”

The implications of this finding are practically and conceptually valuable. Mr. Mohammed was initially detained for a period of 96 hours (IASF standard practice on detention length before detainees are released or charged). However, after 2009 the UK had enabled prolonged detention whereby UK Ministers could authorize exceptional detention beyond 96 hours to enable interrogating a detainee for intelligence gathering purposes. Mr. Mohammed was detained for a total of 110 days without any judicial oversight. The length of prolonged detention was found to be an unequivocal breach of the Convention. This decision is remarkably consistent with a broader trend in European Court jurisprudence maintaining the absolute necessity of judicial oversight for any prolonged detention. Over many decades, the Court has paid particular attention to the term “promptly” found in Article 5 of the Convention:

“Article 5 (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.”

Judicial insistence that persons be brought before a judicial officer has been unwavering. This insistence has hardened even in cases where the state has made claims that terrorist challengers require greater latitude be given to the detaining state. In cases such as Brogan v. United Kingdom (1988), despite state insistence that the challenges of terrorism and the need to collect evidence were national security imperatives, the ECtHR affirmed that in the absence of a duly notified derogation — extended detention under the Convention was unacceptable. Thus in Brogan, the Court held:

“The use in the French text of the word ‘aussitôt’, with its constraining connotation of immediacy, confirms that the degree of flexibility attaching to the notion of ‘promptness’ is limited, even if the attendant circumstances can never be ignored for the purposes of the assessment under paragraph 3. Whereas promptness is to be assessed in each case according to its special features, the significance to be attached to those features can never be taken to the point of impairing the very essence of the right guaranteed by Article 5(3), that is the point of effectively negativing the state’s obligation to ensure a prompt release or a prompt appearance before a judicial authority (para. 59).”

Mohammed reflects a consistent approach to meaningful judicial responsibility in detention oversight. This role attains more consequence the longer the detention prolongs and no matter whom the detainee may be. The override on this core value for the Convention seems an unlikely contender for successful appeal.

Derogation: Out of the Post 9/11 Shadows

Mohammed also brings attention to state practice regarding derogation within the European Convention. Unusually, this judgment pays attention to derogation including within the context of defining the scope and limits of extraterritoriality (paras. 154-157), as well as addressing the meaning of lex specialis because derogation expressly recognizes a role for other bodies of law in the context of war or other national emergency (para 284).

I contextualize Mohammed by noting that we are seeing a shift away from the willingness of democratic states to formally derogate from their human rights treaty obligations in the aftermath of 9/11. There has been a proliferation of exceptional powers practice post 9/11 intertwined with democratic states avoiding formal acknowledgment of de facto and institutionalized emergency power usage. States have shunned explicit acknowledgement that exceptional powers activate derogation responsibilities under international human rights treaties. Human rights reporting mechanisms have generally not noticed or commented on the trend. This drift has been described as enabling “covert” emergencies to proliferate. The covert emergency includes the subtle persuasion of parliaments and courts to acquiesce in the European democratic context to the minimal interpretations of certain ECHR rights that stripped them of much of their content. This tactic had the effect of, at worst, seeking to create effective covert derogations and, at best, of redefining the rights so that they emerged only in a diluted form in practice. No derogation declarations on national security grounds have been made to the United Nations or the Council of Europe except by the United Kingdom post 9/11.

The United Kingdom’s derogation was subsequently removed after considerable domestic controversy. It is debatable what tangible leeway the derogation gave the UK. It is reasonable to assume that a formal derogation brought greater attention to the practices of the United Kingdom as the one democratic state in derogation, and that it became a lightening rod for the cries of foul play by the British government to civil liberties protection in the jurisdiction. As a result one simple lesson for the state might have been – simply do not derogate from human rights treaty obligations. Go back to the status quo. Mohammed starts to chart what consequences this lack of procedural compliance might incur. Specifically the state does not get the benefits of de facto derogation when breaches of human rights obligations bring the state before the Courts and claims of exceptionality receive little hearing.  The Judgment notes:

“155. Article 15 accordingly permits a state, within defined limits, to derogate from its obligations under the Convention “in time of war or other public emergency threatening the life of the nation.” This wording, however, (in particular the word “other”) tends to suggest that Article 15 was not intended to apply to a war overseas which does not threaten the life of the nation. That is no doubt because those who drafted the Convention did not envisage that a state’s jurisdiction under Article 1 would extend to acts done outside its territory. Now that the Convention has been interpreted, however, as having such extraterritorial effect, it seems to me that Article 15 must be interpreted in a way which reflects this. It cannot be right to interpret jurisdiction under Article 1 as encompassing the exercise of power and control by a state on the territory of another state, as the European Court did in the Al-Skeini case, unless at the same time Article 15 is interpreted in a way which is consonant with that position and permits derogation to the extent that it is strictly required by the exigencies of the situation.”

One specific outcome from this decision may be new incentives for states to derogate once they utilise exceptional national security measures. The failure to do so, as in Mohammed may result in the full panoply of human rights law norms being deemed applicable. The result may be more states in derogation, which offers the benefits of signaling exceptionality and indicates that states are playing by the existing human rights rulebook. This, of course, poses a separate set of challenges for Courts.  Both an absence of derogation and a resort to derogation should mandate greater supervision of derogation regimes. Evaluations of past international and domestic court practices reviewing derogation regimes does not inspire confidence in the robustness of review to date.

Ultimately what the Mohammed decision manages to do is to shine a close light on the “subversion of legal norms to counter-insurgency ends.” A perilous articulation of this view is found in the oft-quoted dictum of General Frank Kiton (who served a key military role in Northern Ireland in the early 1970’s):

“The law should be used as just another weapon in the government’s arsenal, and in this case it becomes little more than a propaganda cover for the disposal of unwanted members of the public. For this to happen efficiently, the activities of the legal services have to be tied into the war effort in as discreet a way as possible.”

Mohammed takes international law very seriously. This position operates to curtail the possibility that law functions merely to conceal the actions of governments. Rather, law advances as a sword to reveal and display all the rules in play. Counter-insurgency action does not melt into discreet unseen practices but can be forced into the relatively open spaces. Cases like Mohammed enable that move, but whether scrutiny remains the order of the day is an open question.

The MOD has indicated it will appeal the ruling.