Abd Ali Hameed Al-Waheed v Ministry of Defence

During an armed conflict outside a Convention state, article 5 of the European Convention on Human Rights may accommodate detention authorised by international law, even though it falls outside article 5(1)(a)–(f). A Security Council mandate to use all necessary measures authorises detention where it is required for imperative reasons of security.

Such detention must remain protected against arbitrariness. It requires a clear legal basis, an initial review and regular subsequent reviews by an impartial body using a fair procedure. The detainee must have an effective opportunity to challenge the grounds for detention. Detention solely to obtain intelligence is not authorised. The legal right to habeas corpus is insufficient where military procedures make its exercise practically ineffective.

These conjoined appeals arose from the detention of civilians by British forces during non-international armed conflicts in Iraq and Afghanistan. Mr Al-Waheed was detained in Iraq for six and a half weeks. His article 5(1) claim was dismissed by consent because the lower courts were bound by R (Al-Jedda) v Secretary of State for Defence, with a certificate permitting a leapfrog appeal from the High Court decision at [2014] EWHC 2714 (QB).

Mr Mohammed was detained in Afghanistan for about three and a half months. Leggatt J held at [2014] EWHC 1369 (QB) that British forces had no power to detain him beyond 96 hours and had violated article 5(1) and (4). The Court of Appeal reached the same ultimate conclusion at [2015] EWCA Civ 843, reported at [2016] 2 WLR 247.

The central questions were whether Security Council resolutions or international humanitarian law authorised detention for imperative reasons of security, whether article 5 could accommodate that power, and whether the substantive and procedural requirements of article 5 had been satisfied.

1. Disposition. By a majority, Mr Al-Waheed’s appeal was dismissed and the Ministry of Defence’s appeal concerning Mr Mohammed was allowed in part. Lord Sumption gave the principal judgment, with Lady Hale agreeing. Lord Wilson agreed, and Lords Mance, Hughes, Neuberger and Toulson agreed on the central substantive issues. Lord Reed, with Lord Kerr, dissented from the conclusion that article 5(1) accommodated security detention authorised by the resolutions.

2. The Security Council resolutions governing Iraq and Afghanistan authorised troop-contributing states to detain members of opposing armed forces where detention was necessary for imperative reasons of security. The expression “all necessary measures” included methods inherent in military operations. The Afghan authority was not confined to 96 hours. On Lord Mance’s alternative analysis, ISAF had tacitly accepted the United Kingdom’s separate detention policy.

3. Following Hassan v United Kingdom, article 5(1) of the European Convention on Human Rights had to be interpreted in harmony with international law governing armed conflict. Its six listed grounds were not invariably exhaustive in that context. A Security Council power to detain for imperative reasons of security could therefore be accommodated within article 5(1), in both international and non-international armed conflicts.

4. The accommodation remained subject to protection against arbitrariness. Detention required a sufficiently clear legal basis and review safeguards at least equivalent to articles 43 and 78 of the Fourth Geneva Convention. SOI J3-9 was sufficiently precise to satisfy the requirement for a procedure prescribed by law.

5. Detention solely for intelligence exploitation was neither authorised by the resolutions nor justified by article 5(1)(c). It lacked the immediate connection with neutralising a security threat. Whether imperative reasons of security concurrently justified Mr Mohammed’s detention after 96 hours was left for trial. His transfer to Afghan custody was not extradition within article 5(1)(f). Compliance with article 5(3) was also left for trial.

6. The arrangements violated article 5(4) because Mr Mohammed had no effective means of challenging detention. Habeas corpus existed in law but was practically inaccessible. The internal process did not permit his participation. The majority also concluded that it lacked sufficient institutional guarantees of impartiality, although Lord Mance, Lord Hughes and Lord Neuberger considered that issue insufficiently established.

7. Declarations were made reflecting those conclusions. Compensation remained dependent on proof that unlawful detention for intelligence exploitation prolonged Mr Mohammed’s overall detention or otherwise caused recoverable loss.

1. United Kingdom Supreme Court: In [2017] UKSC 2, dismissed Mr Al-Waheed’s appeal and allowed the Ministry of Defence’s appeal concerning Mr Mohammed in part. It held that Security Council resolutions authorised detention for imperative reasons of security and that article 5(1) could accommodate that power, while declaring that Mr Mohammed lacked an effective article 5(4) challenge.
2. Court of Appeal: In [2015] EWCA Civ 843, reported at [2016] 2 WLR 247, upheld the conclusion that Mr Mohammed’s detention beyond 96 hours was unauthorised, although it differed from parts of the High Court’s reasoning.
3. High Court: In Mr Mohammed’s case, Leggatt J held at [2014] EWHC 1369 (QB) that British forces lacked power to detain beyond 96 hours and had breached article 5(1) and (4). In Mr Al-Waheed’s case, the article 5(1) claim was dismissed by consent at [2014] EWHC 2714 (QB), with a certificate for a leapfrog appeal because R (Al-Jedda) v Secretary of State for Defence was binding.