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In an important judgment handed down today, the Supreme Court addressed the relationship between international law and Article 5 of the European Convention on Human Rights (ECHR) in the context of detention by HM Forces engaged in peacekeeping operations in Iraq and Afghanistan under mandates from the United Nations Security Council.

Mr Mohammed was captured by British forces in Afghanistan on 7 April 2010 and held in detention until 25 July 2010, when he was transferred to the Afghan authorities. Mr Al-Waheed was detained by British forces in Iraq from 11 February 2007 until his release six and a half weeks later. Both men brought claims against the Ministry of Defence alleging, amongst other things, that their extended detention was not compatible with the list of permissible grounds of detention under Article 5(1) ECHR and was not subject to sufficient procedural safeguards, contrary to Article 5(4) ECHR.

On the question of whether there was a power to detain the claimants, the Supreme Court held by a majority of 7 to 2 that HM Forces had power to take and detain prisoners if this was necessary for imperative reasons of security. Authority to capture and detain enemy combatants for imperative reasons of security was implicitly conferred by the relevant Security Council resolutions. Detention pursuant to that power was not a breach of Article 5(1) because the six permitted grounds for detention in Article 5(1) were formulated in relation to peacetime conditions and could not be regarded as exhaustive in conditions of armed conflict. In the same way that the European Court of Human Rights in Hassan v UK was able to “accommodate” the six permitted grounds of detention under Article 5 with the power under the Geneva Conventions to detain in the course of an international armed conflict, a similar “accommodation” could occur in respect of the authority conferred by a Security Council resolution in a non-international armed conflict.

On the issue of procedural safeguards (which arose in Mr Mohammed’s case), the Court held by a majority of 6 to 3 that the procedures operated by HM Forces did not comply with Article 5(4) because they did not afford prisoners an effective right to challenge their detention. The procedure for reviewing detention lacked independence and it failed to provide for the participation of the detainee.

The majority did not find it necessary to determine whether customary international humanitarian law provided a power to detain members of the opposing armed forces in a non-international armed conflict. However, Lord Sumption (with whom the other majority Justices agreed on this point) said that he was “inclined to agree” with Lord Reed’s (dissenting) judgment in which Lord Reed concluded that, at present, there is no such power.

The full judgment can be read here.

James Eadie QC acted for the Ministry of Defence.

Ben Jaffey acted for Mr Al-Waheed and Mr Mohammed.

Shaheed Fatima QC and Paul Luckhurst acted for the First Interveners.

Clerks

Staff