Next week, the United Kingdom Court of Appeal will begin to hear arguments in the government’s appeal against the High Court ruling in Serdar Mohammed v Ministry of Defense. Last May, the High Court handed down judgment (full text) in the case holding that the 110-day detention of a suspected Taliban commander, SM, by UK forces in Afghanistan was unlawful under Article 5 (right to liberty) of the European Convention on Human Rights (ECHR). (For a detailed analysis of the High Court ruling, check out Just Security’s mini-forum on the case, featuring contributions from a number of editors and guests.)

By way of background, UK armed forces had been participating since 2001 in the International Security Assistance Force (ISAF), the multinational force present in Afghanistan under a UN Security Council mandate and with the consent of the Afghan government. ISAF procedures authorized its forces to detain individuals for a maximum of 96 hours, following which an individual had to be released or handed over to Afghan custody. In November 2009, the UK government adopted a national policy allowing for detention beyond 96 hours for the purpose of interrogating a detainee who could provide important new intelligence; this policy was not shared by other participating UN member states nor agreed with the Afghan government.

UK forces captured SM in April 2010. He was detained on British military bases for a total of 110 days. Following the first 96 hours of detention, SM’s detention was authorized by UK ministers for interrogation purposes; he was interrogated over a further 25 days. At this point, Afghan authorities said they wished to take SM into their custody but could not do so due to prison overcrowding. SM was held for a further 81 days before his eventual transfer to Afghan authorities.

Three claimants (PIL claimants) in separate proceedings, with claims raising similar issues to that of SM, were also represented at the High Court trial (and will be represented next week). The three men were held at a British detention facility in Afghanistan between 2012 and 2013, each for around 290 days. They were similarly detained first for interrogation purposes and then on account of “logistical” reasons.

The High Court judgment from Mr Justice Leggatt, running to over a 100 pages, commendably grappled with a multitude of complex international and domestic law issues; a summary of his conclusions is provided at paragraph 6 of his judgment. Some of the key conclusions (of which 2-6 apply equally to the PIL claimants) are:

  1. SM’s arrest under Afghan law was lawful but his continued detention after 72 hours was not lawful under local law.
  2. The ECHR applies extraterritorially in cases where state agents exercise physical control over an individual abroad (Al-Skeini v UK) and thus, in this case.
  3. UK forces were acting as agents of the UK and not (or at least not solely) as agents of the UN. SM’s detention was therefore attributable to the UK.
  4. Article 5 was not qualified or displaced by the relevant UN Security Council Resolutions. The resolutions did not authorize the continued detention for intelligence gathering purposes, hence no conflict arose with Article 5 of the ECHR, and Article 103 of the UN Charter was inapplicable (Al-Jedda v UK).
  5. Article 5 was not qualified or displaced by international humanitarian law (IHL).
  • Mr Justice Leggatt finds that IHL in non-international armed conflicts (NIAC) does not contain any express statement on detention authority; neither is there implicit NIAC detention authority in IHL [paragraphs 234-251].
  • The judgment distinguishes the three ways in which the lex specialis principle in relation to IHL could operate: as displacing ECHR rights; as prevailing over ECHR obligations in cases of conflict between the two bodies of law; or as a principle of interpretation. Mr Justice Leggatt rejects the first two versions of the principle based on jurisprudence of the International Court of Justice and the European Court of Human Rights, statements of UN bodies, and the fact that derogations in wartime are made possible by the ECHR [paragraphs 269-294].
  • Mr Justice Leggatt finds no difficulty with the proposition that IHL can be relied upon as a principle of interpretation. However:

“291. …  Given the specificity of Article 5, there is little scope for lex specialis to operate as a principle of interpretation. Furthermore, in view of my conclusion that in a non-international armed conflict IHL does not specify grounds for detention or procedures to be followed, there are in my view no relevant rules of IHL with which to try to harmonise the interpretation of Article 5.”

  1. SM’s arrest and detention for 96 hours, in line with ISAF policy and falling within UN Security Council authorization, was compatible with Article 5 of the ECHR. His subsequent detention had no legal basis under Afghan or international law, nor were the reasons and circumstances of his continued detention compatible with Article 5 of the ECHR.

One important angle likely to be the focus of arguments next week is the relationship between IHL and international human rights law (IHRL) (and specifically, Article 5 on the right to liberty). This is particularly the case as there have been two noteworthy developments in the debate over detention powers and the relationship between IHL and IHRL since the High Court ruling.

First, the Grand Chamber (GC) of the European Court of Human Rights issued its decision in Hassan v UK last September. The GC found that the UK did not violate Hassan’s ECHR rights while he was a prisoner of British forces in Iraq in 2003, although he was found to be within the UK’s jurisdiction and control. Specifically, the GC explored the relationship between IHL and Article 5 in the context of an international armed conflict (IAC). It held that the ECHR must be applied in a manner consistent with the International Court of Justice’s jurisprudence, namely, that IHL and IHRL co-exist in situations of armed conflict. Thus, the GC held that the grounds of permissible deprivation of liberty under Article 5 “should be accommodated, as far as possible” with permissible detention in an IAC [paragraph 104]. (For a further discussion of the GC ruling on this issue, see Shaheed Fatima’s post at Just Security.)

The UK government is likely to rely on this development in its arguments next week. However, the case of SM could be distinguished. SM’s lawyers could (and are likely to) argue that in the context of a NIAC there are no plainly identifiable rules on detention authority in IHL that could support the interpretative approach adopted by the GC in Hassan. Moreover, as per the GC judgment (my emphasis added):

“104. … It can only be in cases of international armed conflict, where the taking of prisoners of war and the detention of civilians who pose a threat to security are accepted features of international humanitarian law, that Article 5 could be interpreted as permitting the exercise of such broad powers.”

Second, the UN Human Rights Committee adopted General Comment No. 35 on Article 9 of the ICCPR (right to liberty), which has important implications for international law regulating detentions. The language used by the Committee strongly suggests that IHL does not regulate detention in NIAC (see my previous post and posts from Shaheed and Jonathan Horowitz for more on this issue), lending further support to Mr Justice Leggatt’s reasoning. The point is likely to be picked up by SM’s representatives in the course of their arguments before the Court of Appeal and it will be interesting to see how these intervening developments are treated by the judges.

In anticipation of oral arguments kicking off next week, stay tuned to Just Security for further coverage including a post soon from Ryan Goodman.