Fingers crossed the Supreme Court will be able to make sense of this human rights quandary
Serdar Mohammed is an Afghan national who was captured by British troops in Afghanistan on 7 April 2010. The soldiers believed he was a senior Taliban commander who posed a threat to their safety. After his arrest, he was detained at British military bases in Afghanistan until 25 July 2010. He was then transferred to a prison controlled by the Afghan authorities. Later, an Afghan court sentenced him to ten years in prison — though he appears to have been released in June 2014.
Was his detention by British forces a breach of his human rights? That’s the key question to be considered by the Supreme Court at a hearing starting on 26 October.
Nine justices will sit to hear a human rights case of immense importance to the British armed forces. It’s the third of three expedited hearings the Supreme Court has held on this and related cases this year. We may have to wait some months for what will undoubtedly be a wide-ranging judgment.
In wartime, it’s perfectly legitimate for armies to take captives. Prisoners-of-war must be treated properly and repatriated when hostilities are at an end. But the United Kingdom was not fighting a war in Afghanistan. British troops were acting as part of ISAF, the International Security Assistance Force. This was a multinational force, under NATO command, established by the United Nations Security Council to assist the Afghan government in its fight against the Taliban-led insurgency.
ISAF standard operating procedures allowed its forces to detain people for a maximum of 96 hours, after which the detainee had to be released or handed over to the Afghan authorities. But in November 2009, a few months before Mohammed was detained, the UK government adopted its own national policy. This allowed ministers to authorise detention beyond 96 hours for the purpose of interrogating a detainee who could provide significant new intelligence.
That happened in Mohammed’s case and he was interrogated for 25 days after his initial 96 hours had expired. At the end of that period, the Afghan authorities said they wanted to take him into custody but had no room because of prison overcrowding. So British troops held him for a further 81 days. During the entire 110 days he was detained by UK armed forces, he had no opportunity to make any representations to a court or to have the lawfulness of his detention decided by a judge.
Mohammed instructed the London law firm Leigh Day to sue the Ministry of Defence for compensation. Three more claimants, represented by Public Interest Lawyers, joined the case. Mr Justice Leggatt found in their favour in May 2014 and his decision was upheld by the Court of Appeal in July 2015. Together, the two judgments run to nearly 800 closely argued paragraphs. The Ministry of Defence is now appealing to the UK Supreme Court. To assess the government’s chances of success, we have to consider why the lower courts reached their decision.
Mr Justice Leggatt’s first finding, after considering expert evidence, was that Mohammed’s detention from 10 April until 25 July 2010 was unlawful under Afghan law. That is what one would expect from any civilised legal system. But, the judge added, the English courts would not enforce a claim for compensation if his detention was an “act of state”, done under a deliberate policy of the UK government and involving the use of military force abroad.
The second and rather more important question was whether his detention amounted to a breach of his human rights. Article 5 of the European convention is designed to prevent people from being deprived of their liberty except in accordance with the rule of law. The convention limits the circumstances in which a person may be detained and says that anyone held contrary to these provisions is entitled to compensation.
Why, though, should the convention apply in Afghanistan? It’s a long way from Europe.
The answer is to be found in a decision of the UK Supreme Court in June 2013. Known as the “snatch Land Rovers case”, Smith v Ministry of Defence decided that compensation claims could be brought on behalf of British troops killed or injured in Iraq. That decision was based on a ruling by the European Court of Human Rights in a case called Al-Skeini, decided in 2011. It was brought on behalf of six Iraqi civilians killed by British troops.
What Al-Skeini did was to give the human rights convention much greater extraterritorial effect than previous rulings from the Strasbourg court had established. We know from article 1 of the convention that states must secure human rights to “everyone within their jurisdiction”. With a few exceptions, that had previously been understood to mean people within their physical borders. But, said the court in Al-Skeini, the court’s jurisdiction extends to cases where, as a result of military action, a state exercises effective control of an area outside its national territory.
Applying those principles in the snatch Land Rovers case, the Supreme Court held that the human rights convention covered members of the armed forces serving abroad. Troops based in Iraq could claim compensation from the UK government if their rights had been breached.
That was seen by some as controversial. But the armed forces are bound by English law wherever they serve in the world. Why shouldn’t they enjoy its benefits? They know they risk dying in battle. But that doesn’t mean the authorities should be indifferent to their safety.
Back to Serdar Mohammed. Mr Justice Leggatt said he had to follow the Supreme Court’s decision in Smith v MoD and hold that a human rights claim could be brought against the UK government by a man held in British military custody in Afghanistan.
Once that had been established, it was easy to see that there had been breaches of article 5. Mohammed spent 81 days in UK military detention after his interrogation had been completed. That fell outside the scope of UK and ISAF detention policies, said the judge. His detention was arbitrary “because it was not carried out under standards which were clearly defined and reasonably foreseeable in their application”. Only the first 96 hours were lawful.
Although the “act of state” defence blocked enforcement of the claim under Afghan law, it did not apply to the human rights claim. Mr Justice Leggatt dismissed a number of other defences, pointing out that his decision should come as no surprise to the government. There was evidence that the MoD had:
[F]ormed 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.
The Court of Appeal agreed. Indeed it went further, saying that the act of state doctrine did not prevent Mohammed from enforcing his rights under Afghan law in the courts of England and Wales.
Three appeal judges headed by the Lord Chief Justice upheld Mr Justice Leggatt’s decision on the human rights issue. That was because they had to follow the Supreme Court’s decision in Smith v MoD, which itself was based on the view that the Al-Skeini decision by the human rights court had overruled an earlier Strasbourg decision called Bankovic. But, like Mr Justice Leggatt a year earlier, the appeal judges were extremely sniffy about the quality and reasoning of the human rights court in Al-Skeini. The Court of Appeal said:
At no point in its discussion of jurisdiction did the Grand Chamber address the present status of Bankovic.
In the paragraphs of its judgment setting out its analysis and conclusion, the court only referred to Bankovic in the footnotes. This is unfortunate because it is difficult to reconcile the exception acknowledged in Al-Skeini with the reasoning and the result in Bankovic.
Under section 2 of the Human Rights Act, courts in the UK must “take into account” decisions of the European court. But could the UK Supreme Court take both judgments into account and decide between them? Could they take the view that — without clear words and proper reasoning — Bankovic has not been overruled by Al-Skeini after all? Is there some way of holding back the incoming Strasbourg tide?
I suspect that the government is hoping the justices are open to arguments such as these. The MoD will want the Supreme Court to reverse its decision in Smith and limit the extraterritorial effect of the human rights convention. Smith was the decision of a seven-judge court — three of the justices dissented in part — and it may be significant that nine judges are now sitting to hear the latest appeal. Though it’s not entirely logical, if the Supreme Court is thinking of reversing one of its own decisions it often tries to give the case to a larger bench than the one that sat previously.
The specific question now outstanding is whether Mohammed’s detention was compatible with his rights under article 5. It seems very hard to see how it can be. So the case may turn on the broader question of how far the human rights convention should extend.
In recent years, there has been a great deal of concern among the military and others about the encroachment of human rights onto the battlefield. I am not one of those who say the armed forces should lose their rights once they join the services or are deployed outside the UK. If anything, those who are willing to make the ultimate sacrifice deserve more rights rather than fewer. On the other hand, troops who are sent abroad in support of a foreign government need appropriate legal powers, including the power of arrest. While prisoners should have appropriate rights and be able to enforce them, it would be absurd if peacekeeping troops were required to allow dangerous terrorists to escape for fear that they might become involved in a human rights challenge.
Judges are sometimes accused of deciding where the justice of a case lies and then working backwards to find a form of reasoning that will get them there. Whether or not that would be justified in this case, the Supreme Court needs to find an appropriate compromise between human rights and the defence of UK interests. The justices then need to see whether such an outcome is within the law. I hope they succeed.
Joshua Rozenberg is Britain’s best-known commentator on the law. He is the only full-time journalist to have been appointed as Queen’s Counsel honoris causa. This is the latest in a series of articles that he is writing for Legal Cheek about law-related topics in the news.