The United Kingdom Supreme Court recently delivered a number of high profile and long-awaited decisions, Belhaj v Straw and Rahmatullah v Ministry of Defence, and the joined appeals of Al Waheed v Ministry of Defence and Serdar Mohammed v Ministry of Defence. Preliminary analysis on these cases can be read here and here.
I’m going to focus here on the multi-part and somewhat fragmented decision in Serdar Mohammed v Ministry of Defence. There are lots of moving parts in this judgment, but my brief reflection picks up on two threads of the decision.
First, the precise relationship between the European Convention and Resolutions of the United Nations Security Council in situations where the use of force has been authorized by Resolution. Second, background political concerns that, in my view, pervade the judicial approach in this case. Namely, there is British political apprehension about overreach of the European Convention on Human Right (ECHR) into matters of executive and military regulation with consequent effects on the Convention’s domestic and international legitimacy. In parallel, I sense judicial worry that overburdening ECHR states in respect to detention in non-international armed conflicts (NIACs) would lead to an abdication of detention practices to states not bound by the Convention who are less burdened by human rights norms in conflict/post-conflict settings.
Al-Waheed and Serdar Mohammed were both decided by the Court in a 7 to 2 vote. Essentially, the Court found that British military forces in their operations in Afghanistan had power to capture and detain members of opposing forces for periods exceeding 96 hours if this was necessary for imperative reasons of security. However, in exercising that detention function, the Court majority (and Lord Reed) held that the UK’s procedures for detention did not comply with the requirements of ECHR article 5(4). A majority (Lords Sumpton, Hale, Wilson, Hodge, Reed and Kerr) found a breach of the Convention because detainees did not have a right to effectively challenge their detention (judgment), though a number thought this question should be remitted back to trial (Lords Mance, Hughes and Neuberger).
Lord Sumpton (joined by Lady Hale) gave the leading judgment followed by multiple concurrences and the dissent came from Lord Reid joined by Lord Kerr.
The decision follows a tumultuous line of cases before the English and Strasbourg courts where the compatibility of detention with the regime of protection provided by Article 5 of the European Convention has been tested, including in the case of Al-Jedda. This decision reflects an ongoing engagement by national courts in Europe to test the precise calibration of their domestic, regional, and international legal relationships where their militaries are engaged abroad in conflicts. The judgment also reflects some pragmatic dissatisfaction with the implications of decisions by the European Court of Human Rights (ECtHR), not least in the practicalities of undertaking detention (or not) in situations where British forces are engaged as a result of UNSC mandates. While this case clarifies the British position on the legality of detention in NIACs, it clearly does not end the conversation. We can expect to see further litigation on the same issues in the Grand Chamber of the ECtHR. Given the backlog on processing ECtHR cases, added to various admissibility hurdles under the Convention, we may be waiting up to two years for further ECtHR views.
Before reaching the Supreme Court, the High Court decision in Serdar Mohammed found that British forces in Afghanistan had no powers to detain any person for more than 96 hours (plus whatever time the transfer to those authorities took). This finding was based on the applicable Afghani law, and in the absence of a specified legal regime for the detention for suspected insurgents at the time of arrest (here). The Appeal Court also agreed. The Supreme Court did not.
In finding that there was a power to detain past 96 hours in the Afghan context, the Court (in lead and concurrences) spent an extraordinary amount of judicial time articulating the legal basis for detention as it flows from UN Security Council resolutions. The Court did not decide if the basis for this detention power lay in customary international law, concluding that this was an evolving area of state practice, including the view that the Court did not want to unduly influence developments in this arena.
Here, the hesitancy of the majority to contribute to emerging opinio juris can be read as a form of deliberate judicial conservatism. It is consistent with other features of the decision that show an indisputable awareness of the dangers of overreach for national courts in the sensitive arenas of law of war regulation by judicial fiat. However, the majority was far less cautious in regard to the authority of Security Council Resolutions. The majority found in Serdar Mohammed that there was implied authority to capture and detain persons suspected of insurgency for imperative reasons of security contained in the relevant Security Council Resolutions—1546 (2004) in Iraq and UNSCR 1386 (2001). The Court majority said:
The Security Council Resolution has to be interpreted in the light of the realities of forming a multinational force and deploying it in a situation of armed conflict . . . Resolution 1386 (2001) provides for the creation of that force, but article 3 (quoted above) expressly confers authority to take “all necessary measures” on the member states participating in it. . . . It follows that the United Kingdom was entitled to adopt its own detention policy, provided that that policy was consistent with the authority conferred by the relevant Security Council Resolutions, i.e. provided that it did not purport to authorise detention in circumstances where it was not necessary for imperative reasons of security.
In deciding how to tally this factual assessment of the challenges engaging multinational forces in armed conflict with state obligations under Article 5 of the ECHR, the Court relies on the ECHR’s decision in Hassan v UK to find an “accommodation.” That accommodation is premised on holding that Article 5 was created for peacetime conditions and could not be deemed exhaustive for these new contexts of armed conflict where the Convention was being applied. This reasoning has the convenience of ignoring the application of Article 5 in European situations of conflict for many decades, specifically in Northern Ireland and Turkey (albeit that neither were ever formally classified as NIACs, though extensive military engagements were a feature of both). The Court does mandate that the practice (and power) to detain has to be clear and sufficiently accessible to meet the requirements set out in Article 5(1). One positive interpretation of this move is that given the de facto enlargement of Article 5(1) grounds (specifically the recognition of the imperative security needs of the state as a basis for detention) there is increased rather than decreased judicial enforcement of detention in practice in NIAC engagement by multinational forces.
Much could be said about the intricacies of deference to implied powers in Security Council Resolutions. The Court itself recognizes the ambiguity of Security Council Resolutions in this regard, citing the eminent Sir Michael Woods to that effect:
Para 25: A Security Council Resolution adopted in the exercise of these responsibilities is not itself a treaty, nor is it legislation. But it may constitute an authority binding in international law to do that which would otherwise be illegal in international law. Sir Michael Wood, a former Principal Legal Adviser to the Foreign and Commonwealth Office, has made the point that Security Council Resolutions are not usually drafted by the Secretariat, but within the various national missions. For this reason they are not always clear or consistent either in themselves or between one resolution and another: “The Interpretation of Security Council Resolutions”, Max Planck Yearbook of United Nations Law  73.
Despite acknowledging the limitations of Security Council decision-making and interpretation, the Court does not take the next logical step and caution against reliance. Rather, it moves in precisely the opposite direction.
It is apparent that a reliance on UN Security Council resolutions gives a plausible basis to avoid some of the more challenging implications of applying the Convention fulsomely in contexts of armed conflict. However, there ought to be some concern that the Supreme Court is abdicating the creation (or not) of detention regimes to the UNSC, which, to state the obvious, remains an often dysfunctional, highly partisan body. Partisan and political entities produce rules that function to advance the interests of states, particularly the permanent members – China, France, Russia, the UK, and the US. That is not necessarily consistent with the protection of the Law of Armed Conflict and human rights norms. The Court seems to acknowledge this obliquely:
Para 67: Given that the Security Council Resolutions themselves contain no procedural safeguards, it is incumbent on Convention states, if they are to comply with article 5, to specify the conditions on which their armed forces may detain people in the course of an armed conflict and to make adequate means available to detainees to challenge the lawfulness of their detention under their own law.
How this might happen in practice is not spelled out, and the extent to which that compliance should be informed by Convention obligations has a distinct grey zone to it. As Jelena Pejic, Senior Legal Advisor to the International Committee of the Red Cross, has noted in her pithy commentary on Al-Jedda (highly relevant to this decision): One might ask “whether the Security Council is the right body to legislate on detention matters, a task implicitly put to it by the ECtHR?” Pejic also rightly imagines a world in which “the Security Council produces one set of rules on detention for Chapter VII conflicts and another in which no UNSC involvement means different rules will be applied.” To say that confusion and fragmentation of legal regimes will follow is more than obvious. The implications of undoing potential consensus on the protections for detainees in NIACs are self-evident. Even assuming (and that is not a foregone conclusion) that the Security Council would not deliberately undermine human rights protections, we should never assume that the balances between security, state interest, and protection will always fall neatly in Security Council deliberations.
Finally, this judgment is also notable for the keen political awareness it has for the legitimacy challenges the ECHR faces in the United Kingdom. The majority decision is pervaded by sensitivity to military challenges in armed conflict (one might say this is necessary pragmatism). This antenna to political realities can be read as an acknowledgement of strong media and political responses that have been elicited when British soldiers have been prosecuted for actions taken in Iraq, Afghanistan and Northern Ireland. Moreover, these judges are channeling the executive political apathy for the European Convention and its domestic vehicle, the Human Rights Act. The latter is increasingly under threat of being dismantled by the Conservative government. Lord Wilson’s words are worth quoting at length in this regard (my emphasis added):
143. In my view it is no part of the function of this court to speculate upon the approach of another court, not even of the Grand Chamber of the Strasbourg court, to the issue presently raised before it. We cannot foretell the determination in the Grand Chamber of any claim which might now be brought by the claimants, and by the hundreds of other claimants in our courts in a position analogous to them, of a violation by the United Kingdom of article 5(1) of the Convention. No doubt there would again be dissentient voices, concerned, in a way understandably, about a perceived dilution of Convention rights. But a vastly more important factor would be in play. For all of us judges, both in Strasbourg and in the United Kingdom, who believe – many of us, passionately – in the value of the Convention in having raised the standards of a state’s treatment of its people across the Council of Europe, its very credibility is at stake in determination of the present issues. Could it be that, by reason of article 5(1), such state contributors to the multinational forces in Iraq and Afghanistan as happened also to be members of the Council of Europe would be legally disabled from effecting internments in Iraq after 28 June 2004, and from effecting internments in Afghanistan beyond 96 hours, even where necessary for the maintenance of security and even pursuant to UN resolutions which, having surveyed the nature of the conflict there, expressly sanctioned internment in such circumstances? Could it be that those contributors to the multinational force would be disabled from acting pursuant to the UN resolutions although fellow-contributors which happened not to be members of the Council of Europe would not be so disabled? Such conclusions would bring the Convention into widespread international disrepute and it is, frankly, a relief for me to have found myself persuaded that they can properly be avoided.
While much of the attention to this judgment will rightly be focused on its international law and security implications, we need to bear in mind the tremendous political pressure the Convention (and by extension these judges) face in the United Kingdom. There is little doubt that this case will find its way to the European Court of Human Rights. There, one should hope for some measure of pragmatism, recognizing that rigid enforcement of Article 5 may result in states like the United Kingdom abandoning their willingness to detain. Simply put, the legal and political costs may be too high. If the goal is protection, and detention plays an important part in advancing protection in conflict, then such an outcome is to be avoided. This does not mean abandoning the European Convention and its due process requirements, but it may mean being better prepared to engage the application of the law of armed conflict and for human rights courts to show some humility in engaging the interface between both legal systems. This is not avoiding principle but rather engaging pragmatic enforcement in contexts where the risks of undermining the overarching systems of protection are exceedingly high.