Yesterday the High Court of England and Wales, per Mr Justice Leggatt, delivered a comprehensive judgment in Serdar Mohammed v. Ministry of Defence  EWHC 1369 (QB), holding that the United Kingdom lacks detention authority under international humanitarian law/law of armed conflict with regard to individuals it captures in the course of the non-international armed conflict in Afghanistan, and that any detention of such individuals longer than 96 hours violates Article 5 ECHR, as well as relevant Afghan law. The judgment is on any account a heroic effort, with the single judge grappling with a host of complex, intertwined issues of international law and acquitting himself admirably in the process. Para. 6 contains a summary of the judgment for those who don’t want to read the whole thing.
Here are some of the highlights of the Court’s analysis:
(1) The ECHR applies extraterritorially to any person detained by the UK in Afghanistan.
(2) Derogations under Article 15 ECHR could also be used in an extraterritorial context.
(3) The detention of SM by UK forces in Afghanistan was attributable to the United Kingdom, and not to the UN .
(4) No conflict arose between relevant UNSC resolutions, which did not authorize SM’s continued detention, and Article 5 ECHR, and Article 103 of the Charter was inapplicable.
(5) SM’s detention was not authorized by IHL either, since IHL in NIACs contains no detention authority, and cannot prevail over Article 5 ECHR as lex specialis.
(6) SM’s detention violated Article 5 ECHR. While the detention up to 96 hours was Article 5-compliant, the 110 days that SM spent in UK detention were not.
The Court makes it clear that the position the UK government found itself in is largely its own doing (para. 417 ff). This is exactly right. The government’s own legal advisers informed it of the limited extant legal authority for prolonged detention. The UK government failed to enact its own domestic legislation on detention in Afghanistan, or to come to different arrangements with Afghan authorities. Similarly, the UK government chose not to derogate from the Convention, preferring instead to argue that the Convention does not apply. And now that this strategy has failed (and on several levels), much of what it has been doing is exposed as unlawful.
I imagine that the judgment will be appealed, and we shall we see what happens there. But whatever the appellate courts’ conclusions, I can only hope that their judges will show as much diligence and analytical precision as Mr Justice Leggatt.
Here are the highlights, with some commentary:
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