Al-Waheed and Ministry of Defence
Human Rights Law Applies to Detention in Times of Armed Conflict
British Armed Forces detained hundreds of Afghans and Iraqis without charge during the conflicts in Afghanistan and Iraq. There was no clear legal basis for such internment in these non-international armed conflicts, meaning that the detention was not lawful under Article 5 of the European Convention. The UK Supreme Court was asked to decide whether the detentions were instead permitted under the laws of war and resolutions of the UN Security Council. The court concluded that while the detentions were lawful, the UK detainee review process in Afghanistan breached the European Convention on Human Rights (ECHR).
British armed forces captured Serdar Mohammed, in northern Helmand, Afghanistan on April 7, 2010, and detained him in British military bases in Afghanistan until July 25, 2010, when they transferred him to the custody of the Afghan authorities. The UK suspected Mr. Mohammed of being a Taliban commander and interrogated him for 25 days after his initial 96 hours of detention. The UK kept Mr. Mohammed in detention on a British military base for a further 81 days before transferring him to the Afghan authorities, who had previously said they were willing to detain him but did not have the capacity to do so due to overcrowding. The British authorities held Mr. Mohammed for a total of 110 days. He was then placed in Afghan custody until June 2014.
Separately, British armed forces captured Abd Ali Hameed Ali Al-Waheed, an Iraqi citizen, on February 11, 2007 in Basra, southern Iraq and held him until March 28, 2007, when he was eventually released. His case is amongst several hundred brought before the UK High Court in which Iraqi civilians sought damages for their allegedly unlawful detention and/or unlawful treatment by British armed forces after March 20, 2003, when a coalition of armed forces led by the United States and including UK forces invaded Iraq.
After winning his claim in the High Court and Court of Appeal, Mr. Mohammed’s case went to the Supreme Court. There, it was joined with Mr. Al-Waheed’s case to address the common issue of whether Article 5 of the European Convention accommodates International Humanitarian Law (IHL) in the context of detention in non-international armed conflicts (NIAC) and what impact a UN Security Council Resolution that permits the UK to operate militarily in Iraq and Afghanistan has on the UK’s legal authority to detain.
Open Society Justice Initiative Involvement
The Justice Initiative, together with Amnesty International, Human Rights Watch, and the International Commission of Jurists submitted a third-party intervention in this case setting out why IHL does not authorize or regulate internment in times of NIAC and, also, that IHRL is the appropriate source of international law to ensure such detention is not arbitrary and unlawful. Hogan Lovells acted as solicitors and Jessica Simor QC as counsel, both on a pro bono basis.
Article 5 of the European Convention, which applies extraterritorially and in times of armed conflict, regulates internment in a NIAC. Even if IHL is considered to provide specific rules and procedures for NIAC internment, it is now well established that the application of IHL does not displace the application of international human rights law.
IHL does not provide the authority, grounds, or procedures for internment in NIAC, whether explicitly or by implication. There is no reasonable basis for extending IHL rules for international armed conflict (IAC) internment to the same situations in NIAC.
For internment to be compliant with human rights law it must be pursuant to law and not arbitrary. This can be done (a) through the domestic law of the host State, (b) through the domestic law of the State to which the international force belongs, or (c) through a narrowly tailored UNSC Resolution that specifically provides for internment, and is implemented in domestic law. Any law that purports to authorize and regulate NIAC internment must be accompanied by an express and limited derogation from Article 5 in accordance with Article 15 of the ECHR.
On January 17, 2017, the UK Supreme Court ruled that the UK’s detainee review process in Afghanistan breached the European Convention on Human Rights for not being fair and for lacking other procedural requirements. The court also considered that the laws of war – as a matter of treaty law or customary international law – did not provide the UK with a legal authority to intern, which the convention requires when a state deprives an individual of their liberty. On balance, however, the court concluded (by 7 to 2) that the detention was not unlawful, as the UN Security Council had provided the UK with the required authority to intern (despite the European convention not listing internment as a permissible form of deprivation of liberty), the convention did not provide internees with the right to a judicial review process, and internment was permissible even without a formal derogation.
Judgment of the Supreme Court.
Oral arguments presented before the Supreme Court.
Oral arguments presented before the UK Supreme Court.
Mr. Mohammad wins his case at the Court of Appeal. The Ministry of Defence appeals.
Mr. Mohammed is released and returns to his family.
Mr. Mohammad wins his case before the UK High Court with a ruling that the UK’s detention regime in Afghanistan was unlawful. The Ministry of Defence appeals.
Mr. Mohammed claims that his detention was unlawful as it was in breach of his rights under the European Convention.
Mr. Mohammed is released from British custody after 110 days in detention and transferred to Afghan custody.
British armed forces capture Serdar Mohammed, in northern Helmand, Afghanistan and detain him in British military bases in Afghanistan.
Mr. Al-Waheed is released from British detention.
British armed forces capture Abd Ali Hameed Ali Al-Waheed in Basra, southern Iraq, and detain him.
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