Mohammed v Ministry of Defence & Ors

UK forces operating abroad may exercise physical control over an individual sufficient to engage the Convention, even without territorial sovereignty. The Human Rights Act has the same territorial reach. In a non-international armed conflict, international humanitarian law does not itself supply a power to detain and does not displace Article 5 as lex specialis. A mandate to take all necessary measures may authorise short-term detention necessary for arrest, safe transfer or release, but not prolonged detention for intelligence gathering or prison-capacity reasons without Article 5 safeguards. Crown act of state barred enforcement of the foreign-law tort claim in England, but not a claim under the Human Rights Act.

Serdar Mohammed was captured by UK forces in Afghanistan on 7 April 2010 during an ISAF operation. He was held for 110 days and transferred to Afghan custody on 25 July 2010. The preliminary issues were tried on the assumed facts pleaded by the Ministry of Defence.

The court considered the legality of the detention under Afghan law and Article 5 of the Convention; the extraterritorial reach of the Human Rights Act; attribution between the United Kingdom and the United Nations; the effect of Security Council resolutions and international humanitarian law; and Crown act of state. The central issue was the legal basis and permissible duration of detention by UK forces participating in ISAF.

1. Afghan law. UK forces had no general power under Afghan law to detain. They could arrest a suspected criminal and deliver him to the Afghan authorities immediately, or at the latest within 72 hours. SM’s arrest was lawful on the assumed facts, but detention after that period was unlawful. Afghan law gave him a right to compensation.
2. Convention jurisdiction and attribution. The Human Rights Act had the same territorial scope as the Convention. Physical power and control over an individual abroad established Article 1 jurisdiction. The detention facilities and detention decisions were under UK control, so responsibility lay with the United Kingdom rather than ISAF or the United Nations.
3. Security Council resolutions. The applicable resolutions impliedly authorised detention necessary to fulfil ISAF’s mandate, but only for the period necessary to deliver a detainee to the Afghan authorities. They did not authorise detention contrary to international human-rights law. Al-Jedda v Secretary of State for Defence [2008] 1 AC 332 was binding on the general effect of conflicting Charter obligations, but its interpretation of the Iraq resolution did not govern differently worded Afghan resolutions.
4. International humanitarian law. Common Article 3 and article 5 of Additional Protocol II prescribed minimum treatment standards but did not create a power to detain. No customary international-law power to detain was established. IHL therefore neither displaced nor qualified Article 5 in this non-international armed conflict.
5. Article 5. Detention for the first 96 hours was lawful. The further 25 days for interrogation had no permitted purpose and lacked a legal basis. The subsequent 81 days for logistical reasons were arbitrary, fell outside the applicable policies and were not sufficiently certain. SM was not brought promptly before an independent judicial officer and had no effective opportunity to challenge detention under Article 5(4). Article 5(5) consequently gave him an enforceable right to compensation.
6. Act of state. Crown act of state barred enforcement in England of the Afghan-law tort claim, but did not apply to the Human Rights Act claim. Sections 6 and 7 of the Human Rights Act 1998 contained no implied act-of-state exception.