A Trio of Blockbuster Judgments from the UK Supreme Court

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This morning the UK Supreme Court delivered three important judgments dealing with various claims alleging wrongful acts by the UK when fighting international terrorism (UK Supreme Court page; Guardian news report). In Belhaj and Rahmatullah No. 1 the Court unanimously dismissed the Government’s appeal, and found that the claim against the UK for its alleged complicity in torture and mistreatment of the claimants was not barred by rules of state immunity and the foreign act of state doctrine (press release; judgment). In Rahmatullah No. 1 and Mohammed the Court unanimously allowed the Government’s appeals, holding that, insofar as the respondents’ tort claims are based on acts of an inherently governmental nature in the conduct of foreign military operations by the Crown, these were Crown acts of state for which the Government cannot be liable in tort (press release; judgment). Finally, and perhaps of greatest interest to most of our readers, in Al-Waheed and Serdar Mohammed the Court, by 7 votes to 2 in a set of very complex judgments, held that British forces had power to take
and detain prisoners for periods exceeding 96 hours if this was necessary for imperative reasons of security, but that its procedures for doing so did not comply with ECHR article 5(4) because they did not afford prisoners an effective right to challenge their detention (press release; judgment). We will be covering these judgments in more detail soon.

I have only had the time to read Serdar Mohammed, which I am yet fully to digest, but here are some initial thoughts (we have of course extensively covered this case on the blog before). The two key judgments are those of Lord Sumption for the majority and Lord Reed for the minority; I must say that by and large I incline towards the latter. I am also troubled by some of the ipse dixit, rather casual references in the judgments of the majority justices to the lex specialis principle; the supposedly restrictive original intentions of the drafters of the ECHR with regard to its application extraterritorially and in armed conflict, which are in reality completely unknowable; similarly casual constructions of coherent narratives of a very messy field that confirm one’s own predispositions (e.g. that in Al-Skeini the Strasbourg Court unprecedentedly expanded the reach of the Convention to extraterritorial armed conflicts, when one could just as easily say that in Bankovic the Court unprecedentedly restricted the Convention’s reach); or the supposed unavailability of extraterritorial derogations, on which see more here.  That said, the judgments are thoughtful and rigorous even when one might disagree with them, which brings me to the Court’s main findings.

First, like the judges of the High Court and the Court of Appeal before them, the justices of the Supreme Court generally thought that, unlike in international armed conflicts, in non-international armed conflicts IHL does NOT positively authorize detention/deprivation of liberty. Second, unlike the lower courts, the justices of the Supreme Court were not prepared to make an explicit holding to that effect, probably because they saw the matter as evolving and that a customary rule authorizing detention could eventually emerge, and because they could resolve the case on other grounds. Third, those other grounds were detention authority provided by the resolutions of the Security Council as applied to a NIAC. Lord Sumption essentially chose to expand by analogy the European Court’s Hassan judgment, which was expressly confined to IACs and in which the Court held that IHL-authorized detention was not incompatible with Article 5(1) ECHR, to detention in NIACs as well, but ONLY when positive authority for detention existed under some other part of international law, like a UNSC resolution. Here the chief difficulty that the Supreme Court majority has is not only in the express terms of Hassan, but in the approach taken to the interpretation of UNSC resolutions by the ECtHR in Al-Jedda and subsequent cases dealing with Article 103 of the Charter.

As I understand it, Lord Sumption’s chain of reasoning seems to be as follows:

(1) The ECtHR was prepared in Hassan to depart from the strict language of Article 5(1) and carve out an exception for preventive detention authorized by IHL in IACs;

(2) There is no good reason why the same approach couldn’t be applied when detention is authorized by some other norm of international law, like a UNSC resolution;

(3) The UNSC resolutions in this case can be interpreted as authorizing detention in Iraq and Afghanistan, through the use of the ‘all necessary means/measures’ formula;

(4) The approach of the ECtHR in Al-Jedda can be distinguished because it was about whether the UK had an obligation to detain, rather than simply an authorization, since this was key for the (in)operation of Article 103 of the UN Charter; that approach should also not be followed because Article 5(1) does not reflect a universal human rights standard but a regional one, since the ICCPR uses a much looser arbitrariness formula, and because the interpretation of UNSC resolutions should also be universal, i.e. they should mean the same thing for all states;

(5) Accordingly, the majority does a Hassan-like carveout from Article 5(1) for detention in NIACs, but ONLY when such detention is authorized by the UNSC.

To be honest, I find point (4) rather weak – or at least very open to challenge – mainly for the reasons given by Lord Reed in his dissent. Moreover the majority does not provide a rigorous doctrinal explanation of the carveout it is doing from Article 5(1) – remember that this is not being done through the usual suspects, such as lex specialis and Article 103. In fact I’d say that the majority’s holding is directly contrary to the ECtHR’s judgment in Al-Jedda which expressly found a violation of Article 5(1), while in Hassan the Court did not appear to have departed from Al-Jedda. It thus seems inevitable that this case will find its epilogue in Strasbourg. But even more importantly, if I was the UK government I would not feel too comfortable with the win in this case, because of the very specific chain of reasoning on which it was predicated. The skepticism of the justices on the general point about whether IHL authorizes detention in NIACs means that whenever the UK or any other European state intervenes abroad in a NIAC in which the UNSC did not provide authorization (and that will be most of them, as e.g. in Syria), the UK would still need some further domestic or international legal basis in order to detain (and there again I’d press the derogation point).

In any event, we will have further commentary soon.

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Eirik Bjorge says

January 18, 2017

Thanks for these excellent first impressions, Marko! We are in good hands with you. I entirely agree that Lord Reed's judgment in Serdar Mohammed seems much more convincing than Lord Sumption's. "A little knowledge is a dangerous thing."

I hope, incidentally, that EJIL Talk! will also provide analysis of the act of state judgments—surely they are of no less interest to the readers of this blog than Serdar Mohammed?

Here is one early piece on one of the many interesting aspects of Belhaj: