Serdar Mohammed v Ministry of Defence; Mohammed Qasim, Mohammed Nazim and Abdullah v Secretary of State for Defence

The Court of Appeal (Lord Thomas CJ, Lloyd Jones and Beatson LJJ) has found that Afghan nationals detained at Camp Bastion were unlawfully held in breach of both Article 5, ECHR, and Afghan law.

In an important judgment, which addresses the interaction between international humanitarian law (IHL) and international human rights law (IHRL), the Court ruled that: (1) IHL did not confer a right to detain in a non-international armed conflict; (2) the United Kingdom’s detention policy in Afghanistan was not authorised by the applicable UN Security Council Resolutions; (3) in any event, the Ministry of Defence (MOD) had failed to put in place the procedural safeguards appropriate under international law; (4) neither Afghan law nor English law provided authority to hold detainees for longer than 96 hours; (5) and, in the absence of any power to detain or proper procedural safeguards, the detention was arbitrary and contrary to Article 5.

The Court also rejected the MOD/SSD defences, holding that: (1) MOD/SSD acts were not attributable to the UN (in fact, they were contrary to the policy of the International Security Assistance Force in Afghanistan); (2) the MOD/SSD could not rely on the immunity accorded to UN-appointed experts; and (3) there were no compelling grounds of public policy that would justify allowing the MOD to rely on the “act of state” defence.

Permission to appeal to the Supreme Court was granted.

The full judgment can be read here: http://www.bailii.org/ew/cases/EWCA/Civ/2015/843.html

James Eadie QC acted for the MOD and SSD.
Ben Jaffey acted for Serdar Mohammed.
Shaheed Fatima and Paul Luckhurst acted for Mohammed Qasim, Mohammed Nazim and Abdullah.