Serdar Mohammed (Respondent) v Ministry of Defence (Appellant)

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international law. Sir Michael Wood, a former Principal Legal Adviser to the Foreign and Commonwealth Office, has made the point that Security Council Resolutions are not usually drafted by the Secretariat, but within the various national missions. For this reason they are not always clear or consistent either in themselves or between one resolution and another: “The Interpretation of Security Council Resolutions”, Max Planck Yearbook of United Nations Law [1998] 73. The meaning of a Security Council Resolution is generally sensitive to the context in which it is made. In its advisory opinion of June 1971 on the Legal consequences for states of the continued presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) [1971] ICJ Rep 16, 53, para 114, the International Court of Justice observed: “The language of a resolution of the Security Council should be carefully analysed before a conclusion can be made as to its binding effect. In view of the nature of the powers under article 25 [which requires member states to carry out decisions of the Security Council], the question whether they have been in fact exercised is to be determined in each case, having regard to the terms of the resolution to be interpreted, the discussions leading to it, the Charter provisions invoked and, in general, all circumstances that might assist in determining the legal consequences of the resolution of the Security Council.” 26. The expression “all necessary measures”, as used in a Security Council Resolution has, however, acquired a meaning sanctioned by established practice. It authorises the use of the full range of measures open to the United Nations itself for the purpose of maintaining or restoring international peace and security under Chapter VII of the Charter. This will normally involve the use of force under article 42, but subject to the requirement that the measures should be necessary. What is necessary depends primarily on the specific mandate, on the general context and on any conditions or limitations laid down in the resolution. 27. In Gill & Fleck’s valuable Handbook of the International Law of Military Operations (2010), at para 25.03, the opinion is expressed that although Security Council Resolutions do not as a rule authorise operational detention in so many words, “a mandate to use ‘all necessary means’ to achieve the assigned tasks logically encompasses operational detention as one such means, if indeed necessary.” A similar approach was adopted by the European Court of Human Rights in Behrami v France; Saramati v France, Germany and Norway, supra. In that case, the analysis of the legal responsibility of UN forces proceeded on the basis, accepted by the Court, that Security Council Resolution 1244 (1999), authorising military operations in Kosovo, implicitly authorised detention: see paras 124, 127. There was no express authority to detain. But it was deduced from the authority conferred on troop-contributing nations by article 7 to take “all necessary means” to Page 15
fulfil certain responsibilities specified in article 9, including supporting the work of the international civil presence. In my opinion, that inference was inevitable, just as it is in relation to the corresponding operations in Iraq and Afghanistan. This point is not dependent on the categorisation of the relevant armed conflict as international or non-international. 28. In my opinion, it is clear that the authorisation given to troop-contributing states in Afghanistan by Resolution 1386 (2001) to use “all necessary measures” included the detention of members of the opposing armed forces when this was required for imperative reasons of security. The nature of the mission, apparent from the context recited in Resolution 1890 (2009), involved operations of two kinds. The first entailed operations ancillary to the ordinary law enforcement processes of the Afghan government, essentially heavy police work. The second entailed armed combat with the forces of an organised insurrection, with a view to defending ISAF and its contingent forces, protecting the civilian population against the continual threat of violence, and creating a secure environment for the reconstruction of the Afghan state and the country generally. The distinction between these two functions broadly corresponds to the distinction made by UK military doctrine between (i) military internment authorised either by the host state’s municipal law or by United Nations Security Council Resolutions, and (ii) criminal detention in support of the national police force: see Joint Doctrine Publication 1-10 (Prisoners of War, Internees, Detainees, April 2006), at para 113. In performing functions in the former category they must be authorised to employ methods appropriate to military operations. In short, if detention is “imperative” for reasons of security, it is must be “necessary” for the performance of the mission. 29. Leggatt J accepted this up to a point, but considered that it could authorise detention only for a very short period. His reason was that once a prisoner had been captured and disarmed, he no longer represented an imminent threat to the security of HM forces or the civilian population. His continued detention thereafter could not therefore be justified under the Security Council Resolutions. This seems a surprising conclusion and it was rejected, rightly to my mind, by the Court of Appeal. If a person is a sufficient threat to HM forces or the civilian population to warrant his detention in the first place, he is likely to present a sufficient threat to warrant his continued detention after he has been disarmed. Unless UK forces are in a position to transfer him for detention to the civil authorities for possible prosecution, the only alternative is to release him and allow him to present the same threat to HM forces or the civilian population. This necessarily undermines the mission which constitutes the whole purpose of the army’s operations. 30. I conclude that in both Iraq and Afghanistan, the relevant Security Council Resolutions in principle constituted authority in international law for the detention of members of the opposing armed forces whenever it was required for imperative reasons of security. It was not limited to detention pending the delivery of the Page 16
Page 1 and 2: Hilary Term [2017] UKSC 2 On appeal
Page 3 and 4: LORD SUMPTION: (with whom Lady Hale
Page 5 and 6: statement of facts and issues in Se
Page 7 and 8: detention is authorised on the foot
Page 9 and 10: customary international law in a no
Page 11 and 12: eaffirmed the authorisation conferr
Page 13 and 14: situation.” What was meant by the
Page 15: Germany and Norway (2007) 45 EHRR S
Page 19 and 20: this, and that thereafter detention
Page 21 and 22: . With PJHQ and ministerial authori
Page 23 and 24: considered necessary to prevent his
Page 25 and 26: International Court of Justice cons
Page 27 and 28: 46. In Bankovic v Belgium (2001) 44
Page 29 and 30: the level of international law, by
Page 31 and 32: 5 of the Convention. The question w
Page 33 and 34: advisory opinion concerning Legal C
Page 35 and 36: The Convention authorises the inter
Page 37 and 38: insurrection, with a view to defend
Page 39 and 40: that it matters to which category t
Page 41 and 42: planned transport assets or NDS fac
Page 43 and 44: . PJHQ. PJHQ J3 will review all per
Page 45 and 46: een authorised by Ministers for the
Page 47 and 48: exploitation. While this must be a
Page 49 and 50: The judgment of those involved was
Page 51 and 52: were to be made, whether by the Det
Page 53 and 54: Convention, and would leave that qu
Page 55 and 56: 104. This would not necessarily mat
Page 57 and 58: practice also conflicted with the U
Page 59 and 60: LORD WILSON: 113. I agree with the
Page 61 and 62: 119. There can be no doubt that “
Page 63 and 64: Convention III. Insofar, alternativ
Page 65 and 66: detentions had to comply with the p
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Council to address what it had conc
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This statement has stood the test o
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There is nothing to indicate that t
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should be made for non-state actors
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willingness to deploy forces to mai
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and different power to detain, base
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international law of SCRs under Cha
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(b) Afghanistan 168. The relevant S
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the commitment of the parties to th
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“This will typically lead to a re
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184. Mr Devine also gave evidence t
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did not pursue either of these prot
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195. As to the danger or risks for
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“The test to be applied is whethe
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the present circumstances, alternat
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applicable rules of international h
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possible. He was then given the opp
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might even be thought to be contrar
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220. There is of course a question
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purpose of producing him to the Afg
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(v) The court should depart from th
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... (f) the lawful arrest or detent
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its invitation or with its consent.
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250. So far as civilians are concer
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domestic law rather than as prisone
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view: to give only a few recent exa
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Arguments against inferential reaso
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Concluding Observations: Initial Re
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on the absence of adequate protecti
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National Force to continue efforts
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freedoms’. Article 24(2) of the C
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(3) Al-Dulimi v Switzerland 289. Th
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circumstances, his detention was co
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was identical to that considered in
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involving contracting states partic
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316. It follows that it was necessa
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under ground (1) based on the SCRs,
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international police personnel”.
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caused by local logistical conditio
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Capability, dated June 2008: NATO w
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Kingdom national sovereignty”. Af
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“On some occasions, practical, lo
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article 5(1) that the detention sho
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Serdar Mohammed (Respondent) v Ministry of Defence (Appellant)

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