Al-Waheed v Ministry of Defence [2017] UKSC 2

Two detainees, captured by British forces during operations in Iraq and Afghanistan, sued for unlawful detention under Article 5 ECHR. The Supreme Court held that UN Security Council Resolutions authorised detention for imperative security reasons, with Article 5 modified accordingly, though procedural safeguards were inadequate.

Facts

The appeals concern two detainees held by British forces during non-international armed conflicts. Abd Ali Hameed Al-Waheed was captured at his wife’s home in Basrah on 11 February 2007, with explosive components allegedly found at the premises, and was held for six and a half weeks before release. Serdar Mohammed (‘SM’) was captured in Afghanistan on 7 April 2010, allegedly during a ten-hour firefight, having discarded a rocket-propelled grenade launcher. He was detained by British forces for three and a half months before transfer to Afghan authorities, who subsequently convicted him of insurgency offences and sentenced him to ten years’ imprisonment.

Both detentions occurred pursuant to UN Security Council Resolutions: Resolution 1723 (2006) extending Resolution 1546 (2004) in Iraq, and Resolution 1890 (2009) extending Resolution 1386 (2001) in Afghanistan, both authorising ‘all necessary measures’ to maintain security.

Issues

The principal issues before the Supreme Court were:

• Whether HM armed forces had legal power to detain pursuant to the relevant UN Security Council Resolutions and/or international humanitarian law applicable in a non-international armed conflict;
• If so, whether Article 5(1) ECHR should be read so as to accommodate such detention as a permissible ground;
• Whether SM’s detention was compatible with Article 5(1) under paragraphs (c) or (f);
• Whether the circumstances of detention complied with Article 5(4).

Arguments

The Secretary of State argued that the SCRs authorised detention where necessary for imperative reasons of security, and that following Hassan v United Kingdom (2014) 38 BHRC 358, Article 5(1) should be interpreted as non-exhaustive in the context of armed conflict. The claimants argued that Hassan was confined to international armed conflicts where the Geneva Conventions expressly authorised detention, and that the six grounds in Article 5(1) remained exhaustive in non-international armed conflicts.

Judgment

The majority (Lord Sumption, with whom Lady Hale, Lord Wilson, Lord Mance, Lord Hughes, Lord Toulson, Lord Hodge and Lord Neuberger agreed in varying combinations) held:

Authority to Detain

The Security Council Resolutions in both Iraq and Afghanistan constituted authority in international law for the detention of members of opposing armed forces whenever required for imperative reasons of security. The authorisation to take ‘all necessary measures’ encompassed detention as an inherent and necessary military measure.

Application of Hassan

Lord Sumption held that Hassan established three central propositions: (1) international law may provide a sufficient legal basis for military detention under Article 5; (2) the six grounds in Article 5(1)(a)-(f) cannot be regarded as exhaustive when the Convention applies to armed conflict; and (3) procedural provisions, particularly Article 5(4), may be adapted to the special circumstances of armed conflict, provided minimum standards of protection exist equivalent to Articles 43 and 78 of the Fourth Geneva Convention.

The 96-Hour Issue in Afghanistan

The majority rejected the lower courts’ view that detention was limited to 96 hours by ISAF policy. The SCRs conferred authority on troop-contributing states, and the United Kingdom was entitled to adopt its own detention policy consistent with the authority conferred by the SCRs.

Specific Findings on SM’s Detention

Detention for the sole purpose of intelligence exploitation was incompatible with Article 5(1) and not authorised by the SCRs, as imperative reasons of security were the only basis for detention. Article 5(1)(f) did not apply to transfer between British and Afghan custody, as this was not extradition between jurisdictions.

Procedural Safeguards

The UK procedures violated Article 5(4) in two respects: they lacked independence (the Detention Authority reviewed his own decisions) and made no provision for the detainee’s participation in reviews.

Dissent

Lord Reed (with Lord Kerr) dissented, holding that neither customary international humanitarian law nor the SCRs authorised detention beyond the six grounds in Article 5(1). He considered that Hassan was confined to international armed conflicts where the Geneva Conventions provided explicit authority, and that SCRs should be interpreted, following Al-Jedda v United Kingdom, on the presumption that the Security Council does not intend states to breach fundamental human rights.

Implications

The decision has significant implications for the conduct of British military operations under UN mandates. It establishes that Article 5(1) ECHR can accommodate detention for imperative reasons of security in non-international armed conflicts where authorised by Security Council Resolutions, extending the principle in Hassan beyond international armed conflicts.

The judgment requires that any such detention be accompanied by adequate procedural safeguards modelled on Articles 43 and 78 of the Fourth Geneva Convention, including impartial review with the detainee’s participation. The Ministry of Defence’s procedures were found wanting in this respect, with consequences for future operations.

The decision matters particularly to military commanders, government legal advisers, and personnel conducting overseas operations, who now have clearer guidance on the legal framework for security detention. It also affects the hundreds of similar claims pending against the Ministry of Defence. However, the decision is qualified: detention for intelligence purposes alone remains unlawful, and procedural failings may give rise to compensation claims even where detention itself was justified.

The wider significance lies in the court’s willingness to develop the relationship between the Convention, international humanitarian law, and Security Council Resolutions, departing where necessary from the House of Lords’ decision in R (Al-Jedda) v Secretary of State for Defence [2008] AC 332 to reflect subsequent Strasbourg jurisprudence.

Verdict: In Serdar Mohammed, the Supreme Court allowed the Secretary of State’s appeal in part, holding that HM armed forces had legal power to detain SM in excess of 96 hours pursuant to the relevant UN Security Council Resolutions where necessary for imperative reasons of security, and that Article 5(1) ECHR should be read to accommodate such detention. However, SM’s detention between 11 April and 4 May 2010 for intelligence exploitation purposes did not fall within Article 5(1)(c) or (f), and the arrangements for his detention were not compatible with Article 5(4) as he had no effective means of challenging the lawfulness of his detention. The Ministry of Defence is liable under Article 5(5) and section 8 of the Human Rights Act 1998 to pay compensation insofar as the duration of SM’s detention was prolonged by detention for intelligence exploitation purposes. In Al-Waheed, the Court declared that HM armed forces had legal power to detain Mr Al-Waheed pursuant to UN Security Council Resolution 1546 (2004) where necessary for imperative reasons of security, and that Article 5(1) should be read to accommodate such detention. Lord Reed and Lord Kerr dissented.

Source: Al-Waheed v Ministry of Defence [2017] UKSC 2