Earlier this month, the UK Supreme Court held oral argument in Serdar Mohammed v. Ministry of Defence, a crucial case concerning the legality of British detention policy in Afghanistan. Since we’ve covered the case extensively in the past, we wanted to flag for readers both that the argument took place and that you can find recordings of all four days’ worth of hearings here.
At the center of the case is Serdar Mohammed, a suspected Taliban insurgent who was held without access to an attorney for over three months in 2010. If the Supreme Court upholds the lower court’s ruling that Mohammed was unlawfully held, it might clear the path for other Afghan detainees who were held for significant lengths of time to file similar human rights claims.
Unsurprisingly, then, oral arguments pitted security against human rights. The UK Defence Ministry began its argument by claiming the lower court’s implicit conclusion that the law permits the use of lethal force but not long-term detention makes little sense. The Defence Ministry also argued that Mohammed’s release would have put both Mohammed and British troops in danger.
Mohammed’s lawyers, meanwhile, stressed that the UK did not have the authority to detain him for so long during a non-international armed conflict (a conflict between a state and non-state group or between non-state groups, known as a NIAC), such as the one against the Taliban and al-Qaeda in Afghanistan.
Only time will tell which of these arguments, or what combination of them, will win the day.
Last July, a lower court ruled (unanimously) that UN Security Council Resolution 1890 permits detention for only 96 hours before detainees had to be transferred to Afghan authorities. The court did not find legal authority in either international humanitarian law (IHL) or customary international law permitting longer-term detention in a NIAC. The question, then, became whether IHL’s silence on the subject was the equivalent of implied authorization for the UK to detain prisoners for more than 96 hours. The lower court concluded that it was not.
We will have more coverage of this important case as it develops. In the meantime, check out Jonathan Horowitz’s thorough analysis of the lower court’s rationale, as well Ryan Goodman’s breakdown of the IHL questions involved.