The legal fog of war among the people

5 August 2015 by Dominic Ruck Keene

Serdar Mohammed and Others v Secretary of State for Defence [2015] EWCA Civ 843 – read judgment

The Court of Appeal has held that UK armed forces breached both Afghan law and Article 5 of the ECHR by detaining a suspected Taliban commander for longer than the 96 hours permitted by ISAF policy.

The MOD was therefore potentially liable at both public and private law for the failures to make arrangements for extended detention and to put in place such procedural safeguards as were required by international human rights law. Moreover, the defence of ‘act of state’ was not available against either the public or private law claims.

This judgment therefore adds yet further strands to the increasingly dense web that the domestic courts are weaving around every nearly aspect of the use by the UK of its armed forced in the ‘congested, cluttered, contested, connected and constrained’ reality of interstate conflicts such as is likely to form the arena for future deployments  (see the Government PDF Future Charter of Conflict).

The Court of Appeal (which included the Lord Chief Justice) delivered a lengthy, dense and wide-ranging unanimous judgment, that included consideration of international human rights law, international humanitarian law, Afghan law, domestic law, as well of the specific circumstances of the UK’s deployment as part of the International Security Assistance Force into Afghanistan, and to which it is not possible to do full justice within this article.

For the purpose of the judgment it was assumed that the Claimant (SM) in the main appeal was a commander in the Taliban, who was later duly convicted in the Afghan courts, and therefore was assumed to have posed a threat to both the safety of UK armed forces, and to the mission of ISAF at the point was when he was detained.

SM argued that under the legal framework under which UK forces should have operated in Afghanistan, he could only lawfully be detained for 96 hours, following which he had to be handed over to the appropriate Afghan authorities or to be released. Accordingly, he could bring an action for breach of his rights under the ECHR to be protected from arbitrary detention, and for the failure to have proper procedural safeguards in place in relation to his continued detention. Further, he could bring a claim in tort as his detention beyond 96 hours was unlawful in Afghan law.

The MOD argued that based on the presumed threat, and in light of the procedural safeguards inherent within the UK’s detention policy and practice, SM was lawfully detained from the point of capture by UK forces until the point when he was handed over to the Afghan authorities some 110 days later. The detention was not arbitrary as it was authorised under Afghan law and/or UN Security Council Resolution 1890 and/or international humanitarian law. Further, such procedural safeguards as were required by international humanitarian law in the context of a ‘non international armed conflict’ were in place. Moreover, no claims lay against the MOD because the UK’s armed forces were operating as part of ISAF, and accordingly, their actions were attributable to the UN. Finally, even if there was no authority under Afghan law to detain SM, the private law claim failed as his detention resulted from an act of state as the extended detention policy was integral to the UK’s military operations in Afghanistan.

With respect to the claim for breach of SM’s Article 5 rights, the Court of Appeal held that his detention was governed by the ECHR. In an interesting analysis of the conflicting judgments of the ECtHR from Bankovic to Al-Skeini as to the territoriality of the ECHR, the Court noted the significant legal and practical difficulties with how the application of the ECHR protections, originally designed to ‘regulate the domestic exercise of State power’ are ‘to be applied in the very different context of extra-territorial military operations.’ However, the Court held that it was bound by the ‘further major step’ of the Supreme Court’s conclusions in Smith v MOD as to the scope of the ECHR.

The Court held that the practice and procedure of detention by UK forces in Afghanistan beyond 96 hours was not authorised by either Afghan law, or by the UNSCR, or by international humanitarian law.

With respect to the effect of the UN Resolutions, the Court held that the facts of ISAF’s deployment and authorisation by the UNSC in Afghanistan (unlike that of KFOR in Kosovo) meant that the UN did have sufficient ultimate authority and control over ISAF, such that ISAF’s actions were ‘attributable to the UN’. However, the UK had stepped outside the scope of what was properly attributable to the UN and what was lawfully authorised by the UN Resolution when it unilaterally adopted a detention policy that was significantly different from that of ISAF (which only allowed for 96 hours detention), and implemented that policy in a manner that for practical purposes was independent of the ISAF chain of command.

Furthermore, as has been acknowledged by the UN itself in response to the High Court’s decision below, any immunity of the UN did not apply to operations authorised by the UNSC, conducted under the control of States, or of regional organisations such as NATO.

The Court gave lengthy consideration to the relationship between international human rights law (e.g. the ECHR) and international humanitarian law (e.g. the Geneva Conventions). The Court held that there was no explicit or implicit power of detention within international humanitarian law that would apply in an ‘internationalised’ non international armed conflict – i.e. an armed conflict internal to one country, but which involved external actors.

The Court rejected the MOD’s argument that the procedural requirements imposed by Article 5, as modified by the context of an armed conflict, had been complied with. The Court accepted that the detainees had been treated humanely, and had been informed promptly of the reasons for their detention. However, overall, the procedural safeguards appropriate under international law for detention in an non international armed conflict were not put in place by UK forces. It was doubtful that there was periodic review by a sufficiently impartial and objective review. In particular, SM was not given an opportunity to participate in the reviews that were carried out of his continued detention. Even if the MOD was correct that there was a basis for lawful detention under international humanitarian law, and even if Article 5 had to modified to reflect the fact that detention was in the course of a non international armed conflict, the minimum core safeguards required by both international human rights law AND by international humanitarian law would not have been satisfied.

The public law therefore succeeded as SM’s detention was arbitrary and therefore in breach of Article 5 ECHR.

With respect to the private law claim in tort, as SM’s detention took place in Afghanistan, the applicable law under the Private International Law (Miscellaneous Provisions) Act 1995, was Afghan law. On the basis of Afghan law, the detention was not lawful and accordingly, a private law claim in tort under Afghan law could in principle be brought in England and Wales. Such a private law claim was not defeated by the application of any defence of ‘act of state’ as the claim was justiciable, and public policy did not prevent the England and Wales court giving effect to Afghan law as the applicable law.

Comment

The Court of Appeal’s judgment is a classic illustration of the difficulties involved in the highly fact specific consideration that will be required when determining the applicable legal framework that will apply to future UK military operations. That legal web will be an overlapping and potentially contradictory amalgam of international humanitarian law, the law of armed conflict, international human rights law (in particular the ECHR), international law, and domestic law. For example, in this judgment, the Court of Appeal was required to consider the implications of the Bonn Agreement, the UK- Afghanistan Military Technical Agreement and later Memorandum of Understanding, the various UN Resolutions, the ISAF’s policy on detention, and the nature of ISAF and the UK’s deployment in Afghanistan.

Interestingly, the Court of Appeal gave a significant pointer as what it considered a possible solution to the additional legal risk of private law claims that its own judgment has placed on future and ongoing UK deployments. The Court stated ‘It is not for us to set out what legislation might have provided, but legislation might have taken the form of a bar of specified claims by foreign nationals or have provided for specific authority for HM Armed Forces to detain in operations overseas.’

Moreover, the Court’s judgment gave other indications of how future UK policy and procedures surrounding military judgment could potentially be planned and implemented in order to ensure that similar legal challenges may be less successful . For example:

• Ensure that in a multinational operation operating under UN auspices the UK does not formulate its own detention policy that is significantly different from that of the UN authorised force (in this case ISAF), or if it does, that the UN force explicitly authorises the UK’s national policy. As the Court stated ‘If therefore we had concluded that the UK policy for detention was authorised under UNSCR 1890… then this would have provided a ground that was compatible with Article 5, provided the procedural safeguards in relation to its detention and its review were also compatible.’
• Ensure that wherever possible, the ‘Host Nation’ explicitly recognises in its own national law (rather than just by exercise of executive fiat), the policy that the UK wishes to adopt. The Court held ‘it would be an extraordinary and unjustifiable extension of the jurisprudence of the Strasbourg court in Al-Skeini, to decide that further requirements of the ECHR prevailed in relation to the actions of HM armed forces in Afghanistan over the law of Afghanistan. We consider that if detention was authorised by the law of Afghanistan, no claim would lie under Article’
• The procedural safeguards of treatment of detainees in counter insurgency campaigns will have to be much closer to the Northern Ireland style of police primacy and judicial involvement, than to the treatment of prisoners of war in more conventional military contexts.

However, the Court of Appeal’s judgment still poses significant challenges in the realities of the kind of conflicts that the UK armed forces are likely to find themselves in. For example, the Court accepted that there is a potential ‘Catch 22’ where if detained individuals are released after 96 hours because they could not be released to Afghan control (whether for logistic reasons, or because of fears that they would be ill-treated if handed over) they nevertheless might very well have to ‘consider releasing them to carry on their campaign aimed at killing and injuring HM armed forces’.

More significantly, the judgment illustrates the immense pressures that will be faced by UK commanders on the ground in navigating their way in a world of Putin’s ‘little green men’ and of stateless and state sponsored Islamic extremism through the legal labyrinth of modern war.

Lastly, while this judgment will doubtless reinforce calls for something to be done about the Human Rights Act, the Court of Appeal in its consideration of the act of state defence and its consequent ‘bar on access to the court’ gave an interesting indication of the willingness of the courts to root significant challenges to the executive’s interpretation of the separation of powers in the common law. It held that

the need for such continuing review of the common law remains as important as ever, notwithstanding the enactment in the Human Rights Act 1998. The continuing importance of the common law, which continues to develop in parallel to the system of ECHR rights introduced by the Human Rights Act 1998, has been recognised since soon after that statute came into force…It therefore becomes necessary to identify, in the case of this limb of act of state, the public policy interest which justifies denying access to the courts in this way. We do not consider that, in circumstances where the subject matter of a claim is justiciable, the fact that the conduct giving rise to the claim is a sovereign act done abroad pursuant to deliberate UK foreign policy should necessarily in all cases require that the claim be barred on grounds of public policy.

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