UK Government’s detention regime in Afghanistan breaches human rights

Mohammed v Ministry of Defence [2014] EWHC 1369 (QB) (2 May 2014)

Summary

In an important and wide-ranging judgment examining the basis and scope of UK powers to detain in Afghanistan, the UK High Court has ruled that the UK government breached Afghan law and the European Convention on Human Rights (ECHR) by detaining a suspected insurgent for a prolonged period without charge for the purpose of intelligence gathering. The Court found that the UK has no lawful authority to detain suspects beyond 96-hours before handing them over to the Afghan authorities and, in developing a detention regime that permitted individuals to be held indefinitely and without judicial oversight, it had acted in “stark violation” of its human rights obligations.

Facts

UK troops have been operating in Afghanistan since 2009 as part of the International Security Assistance Force (ISAF). The mandate of ISAF is to provide the Afghan government with assistance in improving the security situation in the country – in particular in its non-international armed conflict against insurgent groups. UN Security Council Resolutions authorize UN member states participating in ISAF to take “all necessary measures” to fulfil this mandate.

Responsibility for detaining and prosecuting captured insurgents, however, lies with the Afghan authorities, and ISAF standard operating procedures permit international forces to detain suspected insurgents they capture for no longer than 96 hours, after which they must either be handed over to the Afghan authorities with a view to prosecution or release. The UK adhered to this policy until 2009, when the UK government announced that government ministers would, exceptionally, be able to approve requests by UK forces to detain someone beyond 96 hours for interrogation purposes if it was deemed that the person could provide significant new intelligence.

The claimant, Serdar Mohammed, was a young Afghan man captured by British troops in a raid in Helmand in April 2010 and detained under this policy. He was held by British forces without charge or trial for over four months at their bases at Camp Bastion and Kandahar Airfield and subjected to multiple interrogations before being handed over to the Afghan National Directorate of Security (NDS), whom he alleges brutally tortured him and forced him to thumbprint a confession to being a member of the Taliban. He is currently serving a 10-year prison sentence in Kabul.

Mr Mohammed brought civil proceedings against the UK Ministry of Defence challenging both the legality of his detention by UK troops and his handover and subsequent torture by the NDS. He argued that his four-month detention by British Forces was unlawful under the Afghan Constitution and article 5 of the European Convention on Human Rights (ECHR) (as applied by the UK Human Rights Act), both of which protect individual liberty and provide that an individual may only be deprived of their liberty in a limited number of prescribed circumstances and in accordance with procedures governed by law.

The Ministry of Defence (MOD) disputed the claim on multiple grounds, some of which are beyond the scope of this case note. With respect to the lawfulness of Mr Mohamed’s detention, it argued that:

• Article 5 of the ECHR did not apply in Afghanistan because: The territorial scope of the ECHR does not extend to detention operations in Afghanistan; or in the context of the war in Afghanistan, it was displaced either by the UN Security Council Resolutions or by International Humanitarian Law (IHL), both of which authorized Mr Mohamed’s detention;
• Alternatively, if article 5 did apply, its provisions must be interpreted so as to have regard to the reality of the situation in southern Afghanistan at the time and, under such an interpretation, Mr Mohamed’s detention was clearly lawful. In particular, the MOD relied on Article 5(1)(c), which permits the lawful arrest or detention of a person “for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence…”;
• Further, Mr Mohamed’s detention was lawful under Afghan law because the UN Security Council Resolutions (which permitted his detention) were directly incorporated into Afghan law via a provision of the Afghan Constitution;
• In any event, legal responsibility for his detention lay with the United Nations, not the UK, because the soldiers who detained him were acting as part of ISAF under the authority of the UN Security Council.

Decision

The High Court rejected all of these arguments. Mr Justice Leggatt held that the key question to be addressed in the case was “whether the UK government has any right in law to imprison people in Afghanistan and, if so, what is the scope of that right”.

With respect to Mr Mohammed’s article 5 claim, his Honour ruled that:

• It is now “clear and binding authority” that the territorial jurisdiction of the ECHR extends to the actions of state parties committed outside their territory in circumstances where the state, through its agents, exercises physical power and control over an individual. It therefore extends to actions taken on UK bases in Afghanistan, which in reality, operate under the exclusive control of the UK notwithstanding that Afghanistan has legal sovereignty over all its territory,
• Legal responsibility was clearly attributable to the UK rather than the UN in circumstances where the UK had developed its own detention policy which explicitly contradicted that of ISAF in key respects, where a UK commander had authorized Mr Mohammed’s detention and where he had remained under the full and exclusive de facto control of the UK at all times;
• Article 5 was not qualified or displaced in the context of the war in Afghanistan by the operation of international humanitarian law which, in any event, does not provide a legal power to detain in situations of non-international armed conflict, nor was it displaced by the UN Security Council Resolutions. These resolutions authorized foreign troops to take “all necessary measures” to fulfil the ISAF mandate of assisting the Afghan government to improve security, but did not permit violations of international human rights law, or detention outside the Afghan criminal justice system for any longer than was necessary to deliver a detainee to the Afghan authorities.

In assessing whether Mr Mohammed’s detention complied with article 5, the Court held that:

• Mr Mohammed’s capture and the first 96 hours of his detention, which complied with ISAF policy, were compatible with both the UN Mandate and with article 5 of the Convention.
• The subsequent 106 days for which he was detained, however, were clearly not because: he was detained for the purpose of gathering intelligence, which is not a permissible purpose under article 5; he was not brought promptly before a judicial officer; the periodic reviews of his detention were conducted by the Executive, not an independent judicial officer; he was not permitted at any point to make representations to the detaining authority challenging his detention; at least part of the period for which he was detained was not justifiable even by reference to the UK’s stated detention policy and was therefore arbitrary.

The Court also held that Mr Mohammed’s detention was clearly unlawful under Afghan law. It rejected the MOD’s argument that UN Security Council Resolutions are directly incorporated into the Afghan Constitution but found that, even if they had been, they could not override the protections on individual liberty enshrined in the other provisions of the Constitution.

The Court concluded that in deciding to extend detention of suspects beyond the 96-hour limit imposed by ISAF without seeking a lawful basis on which to do so, the MOD had deliberately violated Afghan and international law:

The conclusion that SM’s detention after 96 hours was unlawful will not come as a surprise to the MOD. It is apparent from documents to which I have referred…that the MOD formed the view at an early stage that there was no legal basis on which UK armed forces could legitimately detain individuals in Afghanistan for longer than the maximum period of 96 hours authorised by ISAF…Decisions were … made to adopt a detention policy and practices in pursuit of military objectives which went beyond the legal powers available to the UK. The consequence of those decisions is that the MOD has incurred liabilities to those who have been unlawfully detained.

Commentary

This case is the first of its kind to be brought before the UK courts in relation to the war in Afghanistan and has important legal, military and political implications. The judgment builds on the precedents already established regarding military operations in Iraq in the cases of Al Skeini and Al Jedda with regard to the extra-territorial jurisdiction of the ECHR, the harmonization of international humanitarian law with human rights law and the permissible limits of detention under article 5 in the context of war. As those judgments did, this decision reinforces the critical importance of international human rights law standards and their clear application to the actions of UK soldiers operating abroad.

The judgment is also a salient reminder to all governments engaged in combat operations overseas that military imperatives do not give them the right to overstep the boundaries of their legal authority. As the Court pointed out, the UK government had other options available to it. Some of these – such as seeking Afghan legislation authorizing detention or an expansion of the UN Security Council mandate – were explicitly considered by the UK government early on but were rejected as politically unworkable. The MOD then proceeded in any event to adopt a policy it knew to have no foundation in law, presumably thinking that it was unlikely ever to be challenged.

The MOD has indicated that it plans to appeal the decision, so it remains to be seen whether the High Court’s judgment will be upheld. Either way, it has already had the effect of shining an important spotlight on an area of government decision-making that is rarely exposed to scrutiny. Hopefully it will make not only the UK but also other countries like Australia think twice before they authorize their troops to depart from established international human rights standards.

This decision is available online at: http://www.bailii.org/ew/cases/EWHC/QB/2014/1369.html

Keren Adams is a consultant and former partner of UK human rights firm Leigh Day and represented Serdar Mohammed. She is now based in Melbourne.