Abd Ali Hameed Al-Waheed v Ministry of Defence

This Supreme Court decision addresses whether and to what extent the European Convention on Human Rights (in particular article 5(1) and article 5(4)) applies to detention by United Kingdom forces during armed operations abroad, and whether United Nations Security Council resolutions and/or international humanitarian law authorise detention in non-international armed conflicts. The court held that where a Security Council resolution authorises the use of "all necessary measures" in support of a host government, that mandate can in principle include detention when it is necessary for "imperative reasons of security", and that article 5(1) must be read so as to accommodate such a power in appropriate circumstances.

The court also held that procedural safeguards remain essential: administrative review procedures equivalent in effect to the review requirements identified in the Geneva Conventions are necessary to prevent arbitrariness and to satisfy article 5(4). Applying those principles, the court declared that UK forces had legal power under the relevant resolutions to detain in Iraq (Resolution 1546 (2004)) and in Afghanistan (Resolutions 1386 (2001), 1510 (2003) and 1890 (2009)) when detention was necessary for imperative reasons of security, but that the arrangements for review in the detention of Serdar Mohammed did not meet article 5(4) and that parts of his detention for intelligence-exploitation purposes were not covered by article 5(1).

This judgment arises from paired appeals by detainees held by HM forces in Iraq and Afghanistan alleging unlawful detention in breach of article 5 of the European Convention on Human Rights and associated domestic law claims. The issues included whether Security Council Resolutions (SCRs) or international humanitarian law authorised detention in non-Convention territory; whether article 5(1)'s list of permitted grounds must be treated as exhaustive in armed conflict; whether procedural safeguards in article 5(3) and 5(4) can be adapted in an armed-conflict context; and whether the particular detention and review arrangements complied with those standards.

Background and facts

• Al-Waheed: captured in Basrah on 11 February 2007 and held about six and a half weeks by UK forces; SCR 1546 and its annexed letters were central to the legal question.
• Serdar Mohammed ("SM"): captured in Helmand, Afghanistan on 7 April 2010 and detained by UK forces for about 3½ months before transfer to Afghan custody; key factual issues included capture circumstances, intelligence assessments, an ISAF 96‑hour detention policy, and a subsequent UK policy permitting ministerial authorisation of detention beyond 96 hours for intelligence exploitation.

Procedural posture

The cases reached the Supreme Court on appeal from the High Court (EWHC) and the Court of Appeal (EWCA Civ 843). The court heard argument on issues of public international law, Convention interpretation and domestic procedural safeguards; some factual issues were reserved to be determined at trial.

Issues framed

1. Whether HM forces had legal authority to detain detainees beyond ISAF 96 hours pursuant to (a) the relevant Security Council Resolutions and/or (b) international humanitarian law applicable to a non-international armed conflict.
2. Whether article 5(1) of the Convention should be read so as to accommodate, as permissible grounds, detention pursuant to such authority.
3. Whether specific paragraph(s) of article 5(1) (notably (c) and (f)) could apply to particular phases of detention and transfer.
4. Whether the procedural safeguards required by article 5(3) and 5(4) could be adapted to the armed-conflict context and whether the arrangements in SM’s case met those standards.

Court’s reasoning (concise)

1. The court analysed the distinction between international and non-international armed conflict and reviewed the Geneva Conventions and customary law. The majority concluded that, as matters stand, conventional and customary international humanitarian law do not authorise a general international-law power to detain in a NIAC in the same detailed way as in an IAC, but that Security Council Resolutions authorising "all necessary measures" can in principle include detention when necessary for imperative reasons of security.
2. Relying on Strasbourg jurisprudence (notably Hassan v UK) the majority held that article 5(1) should be interpreted in harmony with relevant rules of international law. Where international law authorises detention for imperative reasons of security, article 5(1)'s listed grounds are to be accommodated so as not to prevent lawful military detention, but the Convention’s core objective — protection against arbitrariness — remains central and requires adequate procedural safeguards.
3. The court distinguished the earlier Al-Jedda jurisprudence and emphasised that Security Council Resolutions must be construed with a strong presumption that they do not authorise measures inconsistent with human-rights obligations unless language is clear and explicit.
4. Applying these principles, the court declared that UK forces had authority under the relevant SCRs in Iraq and Afghanistan to detain where necessary for imperative reasons of security and that article 5(1) be read to accommodate that power in principle. However, specific detentions must satisfy the procedural and substantive standards required by the Convention adapted to the armed-conflict context. In SM’s case the court found that periods of detention authorised solely for intelligence exploitation were not justified under article 5(1)(c) and that the review arrangements failed article 5(4).

Relief and disposition

The Supreme Court (majority) made declarations on the scope of lawful detention under the SCRs and on the need to adapt article 5 to armed-conflict contexts subject to non-arbitrariness and adequate review; it found a breach of article 5(4) in SM’s detention and left other factual questions (including causation and quantum of damages) to trial.

The court allowed the appeals in part. It declared that where UN Security Council resolutions authorise the use of "all necessary measures" in support of a host government, that authority can in principle include detention when it is necessary for "imperative reasons of security" and that article 5(1) of the Convention should be read to accommodate such a power, subject to the Convention’s fundamental protection against arbitrariness. On the facts pleaded, the court held that UK forces had power under SCR 1546 (Iraq) and SCRs 1386/1510/1890 (Afghanistan) to detain when necessary for imperative reasons of security; but it also held that certain parts of Serdar Mohammed’s detention (notably detention beyond 96 hours for the sole purpose of intelligence exploitation) did not fall within article 5(1) and that the domestic review arrangements failed article 5(4). The court remitted remaining factual issues to trial.

On appeals from EWHC (Queen's Bench Division) [2014] EWHC 2714 (QB) and the Court of Appeal [2015] EWCA Civ 843. The Supreme Court heard consolidated appeals and made declarations on law and remitted factual issues for trial.