In the wake of the September 11 attacks, stability in Afghanistan became a priority for world leaders. But before all that happened, America, Britain and Saudi Arabia poured arms and money into Afghanistan through Pakistan to wage a jihad against the Soviet Union. After the Soviets withdrew, the chickens came home to roost and the same jihadis – who transformed into Al Qaeda and the Taliban etc. – decided to have a go at the West and its allies. Since the fall of the Taliban in late 2001, UK forces have been involved in the International Security Assistance Force (ISAF) which operates in Afghanistan with the Afghan Government’s approval under the United Nations Security Council’s mandate.
This case concerned Serdar Mohammed (SM) who was detained in an ISAF raid for being a suspected Taliban commander. Mr Justice Leggatt said that his masterly judgment – exceeding 400 paragraphs – was the bare summary only. SM claimed to be a farmer irrigating his fields near his home in northern Helmand when he was captured. His detention for interrogation beyond 96 hours was authorised by UK ministers; he was interrogated over a further 25 days. Afghan authorities wanted to take charge of his custody but owing to insufficient prison space he was detained by the British military for another 81 days. During his total 110 days in British custody in Afghanistan, SM was precluded from making representations or challenging the lawfulness of his detention before a court of law.
SM claimed that British forces detained him without charge or trial. He said that a dog bit him during his capture. British forces assaulted him after capturing him; they also deprived him of sleep, exposed him to cold temperatures and interrogated him more than two dozen times. Upon finally being handed over to Afghan authorities, SM was brutally tortured and convicted to 16 years’ imprisonment (reduced to 10 years on appeal) by a court which conducted proceedings in a language he did not understand; he is currently serving his sentence in a Kabul prison.
Leggatt J held that although SM was fairly captured, his detention after 72 hours was unlawful under Afghan, British and international law.
Apart from SM, three other claimants (Mohammed Qasim, Mohammed Wazim and Abdullah) – the “PIL claimants” (because they were represented by Public Interest Lawyers) pursued their claims on the Human Rights Act 1998 alone and not under Afghan law – advanced claims raising similar issues to that of SM.
The court was pretty unimpressed by the government’s expert witnesses (Professor Martin Lau and Mr Shefeek Seddig) and preferred the evidence of SM’s expert witnesses (Mr Michael E. Hartmann and Mr Saeeq Shajjan).
Leggatt J said this about Professor Lau’s evidence:
94. The fundamental difficulty with Professor Lau’s reasoning is that it does not explain how consent by the executive branch of government in Afghanistan to the deployment of ISAF in Afghanistan could by itself give ISAF a power of detention under Afghan law. To create a power of detention which did not previously exist in Afghan law, a legislative act was needed. Professor Lau did not explain how a letter of request addressed to the United Nations Security Council could possibly be regarded as a legislative act. Under Section III(C)(1) of the Bonn Agreement, the Interim Administration had the right “to issue decrees for the peace, order and good government of Afghanistan”. Professor Lau did not, however, suggest that the Interim Administration had issued any decree which granted a power of detention to ISAF.
95. In seeking to explain his opinion in his oral evidence, Professor Lau said that the deployment of international troops sent by the UN Security Council at the request of the Afghan administration “carried with them international law obligations” and that by inviting ISAF troops into the country, an additional source of law was “imported” into Afghanistan. He did not, however, provide any coherent explanation of how this importation of law occurred or could conceptually have occurred.
In relation to SM’s detention, noting that the UK has established its own national detention policy in Afghanistan, which differs from that of ISAF, the court held as follows:
- UK armed forces operating in Afghanistan have no right under the local law to detain people other than a right to arrest suspected criminals and deliver them to the Afghan authorities immediately, or at the latest within 72 hours. On the facts assumed in this case SM’s arrest was lawful under Afghan law but his continued detention after 72 hours was not.
- It is now clear law binding on this court: (a) that whenever a state which is a party to the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) exercises through its agents physical control over an individual abroad, and even in consequence of military action, it must do so in a way which complies with the Convention; and (b) that the territorial scope of the Human Rights Act coincides with that of the Convention. Accordingly, the Human Rights Act extends to the detention of SM by UK armed forces in Afghanistan.
- In capturing and detaining SM, the UK armed forces were acting as agents of the United Kingdom and not (or at any rate not solely) as agents of the United Nations. The UK government is therefore responsible in law for any violation by its armed forces of a right guaranteed by the Convention.
- Article 5 of the Convention, which guarantees the right to liberty, was not qualified or displaced in its application to the detention of suspected insurgents by UK armed forces in Afghanistan either (a) by the United Nations Security Council Resolutions which authorised the UK to participate in ISAF or (b) by international humanitarian law. Further, the authorisation given by the UN Security Council Resolutions to “take all necessary measures” to fulfil the ISAF mandate of assisting the Afghan government to improve security does not permit detention (a) outside the Afghan criminal justice system for any longer than necessary to deliver the detainee to the Afghan authorities nor (b) which violates international human rights law, including the Convention.
- ISAF detention policy is compatible with Article 5 of the Convention and falls within the authorisation given by the UN Security Council. SM’s arrest and detention for 96 hours therefore complied with Article 5.
- However, his subsequent detention did not. The UK government had no legal basis either under Afghan law or in international law for detaining SM after 96 hours. Nor was it compatible with Article 5 to detain him for a further 25 days solely for the purposes of interrogation and without bringing him before a judge or giving him any opportunity to challenge the lawfulness of his detention.
- SM’s continued detention by the UK for another 81 days for “logistical” reasons until space became available in an Afghan prison was also unlawful for similar reasons and was not authorised by the UN Security Council. In addition, this further period of detention was arbitrary because it was indefinite and not in accordance with the UK’s own policy guidelines on detention.
- Accordingly, SM’s extended detention for a total of 106 days beyond the 96 hours permitted by ISAF policy was not authorised by the UN mandate under which UK forces are present in Afghanistan and was contrary to Article 5 of the Convention.
- In circumstances where his detention took place in Afghanistan, the law applicable to the question whether SM has suffered a legal wrong is Afghan law, which gives him a right to claim compensation from the UK government. However, the English courts will not enforce that claim in circumstances where SM’s detention was an ‘act of state’ done pursuant to a deliberate policy of the UK government involving the use of military force abroad. SM therefore cannot recover damages in the English courts based on the fact that his imprisonment by UK forces was illegal under Afghan law.
- However, this “act of state” defence does not apply to claims brought under the Human Rights Act for violation of a right guaranteed by the Convention. Article 5(5) of the Convention gives SM an “enforceable right to compensation” which the courts are required to enforce.
- This decision will not come as a surprise to the MOD which formed the view at an early stage that there was no legal basis on which UK armed forces could detain individuals in Afghanistan for longer than the maximum period of 96 hours authorised by ISAF. That this view was correct. Nothing happened subsequently to provide a legal basis for such longer detention, either under the local Afghan law, international law or English law. UK Ministers nevertheless decided to adopt a detention policy and practices 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.
Equally, the instant court scolded (at paragraph 136) the Strasbourg Court for “its lack of transparency” in Al-Skeini v United Kingdom (2011) 53 EHRR 18 in the manner in which it dealt with its Bankovic v Belgium  11 BHRC 435 judgment. Leggatt J considered this to be “a disappointing feature” of the Al-Skeini case where, save “some footnotes”, the Grand Chamber failed to “confront or expressly acknowledge the fact that it was departing from its previous approach or explain why it was doing so.”
Leggatt J said that the Strasbourg Court had changed its mind about what it said in Bankovic in relation to the extraterritorial jurisdiction of the Convention and in particular:
- The court has now endorsed a principle of jurisdiction based on the exercise of effective control by a state over an individual;
- The court has expressly resiled from the notion that Convention rights constitute a single, indivisible package and has said that they can be “divided and tailored”;
- The court held that jurisdiction under article 1 is not limited to the territory of states which are parties to the Convention;
- In endorsing an approach which goes well beyond what the court had found in the Bankovic case to be ordinary meaning and original intention of Article 1, the court has effectively treated Article 1 as a ‘living instrument”;
- Although the court continued to pay lip-serve to the notion that jurisdiction is “essentially territorial” and that extraterritorial jurisdiction is exceptional, it is difficult to see how this can remain so when jurisdiction arises wherever in the world a state exercises effective control over an individual.
In his mammoth judgment Leggatt J also referred to the UK Supreme Court’s treatment of the Al-Skeini ruling in Smith v Ministry of Defence  AC 52 where families of British soldiers killed in Iraq alleged that the Ministry of Defence’s failure to provide suitable equipment resulted in breaching the obligation to protect the right to life guaranteed under Article 2 of the Convention. Speaking for the majority (4-3) – which allowed the appeal – on the point whether the Convention applied to British armed forces serving outside the UK, at paragraph 49 Lord Hope extracted a general rule that “extraterritorial jurisdiction can exist whenever a state through its agents exercises authority and control over an individual”. His Lordship’s rationale that the UK owed duties under Article 2 to armed forces serving outside its territory was indelibly connected to “the control principle” expressed by the Strasbourg Court in Al-Skeini.
Noting that SM’s detention was authorised and reviewed exclusively by UK officials and Ministers, Leggatt J was uncompromising in his view that:
187. In these circumstances, it is in my view quite clear that the detention of SM is attributable to the United Kingdom. It is unnecessary for me to consider the possibility of joint responsibility, as I think it equally clear that the acts involved in the detention of SM are not attributable to ISAF or the UN.
The court could not discern any legal basis for detention beyond the ISAF framework. Unsurprisingly, the Ministry of Defence is particularly unhappy with the ruling. The ministry’s own view is that because it has a “licence to kill” in Afghanistan, it is free to detain anyone it wants.
But the court explained that as soon as a person has been detained using lethal force against that person is no longer an option. Therefore, a basis for detention could not be found in such arguments.
The Defence Secretary Philip Hammond – who very recently visited Afghanistan to witness the closure of Observation Post Sterga, the last remaining forward base to be used by UK troops – and senior members of the British military are frustrated by the court’s decision that the Convention applies to Afghanistan’s battlefields and intend to appeal because it undermines the security of British forces and innocent civilians.