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

Both practically and legally, the British government remained responsible for the
safety of its forces in Afghanistan and the proper performance of their functions, as
the United States Supreme Court has recognised in the case of American forces
participating in multinational forces under United Nations auspices: Munaf v Geren
(2008) 533 US 674. ISAF was not authorised, nor did it purport to serve as the
delegate of the Security Council for the purpose of determining what measures
should prove necessary. It follows that the United Kingdom was entitled to adopt its
own detention policy, provided that that policy was consistent with the authority
conferred by the relevant Security Council Resolutions, ie provided that it did not
purport to authorise detention in circumstances where it was not necessary for
imperative reasons of security.
39. For these reasons, I conclude that the authority conferred by the Security
Council Resolutions on Afghanistan to detain for imperative reasons of security,
was not limited to 96 hours. I would have reached the same conclusion even if I had
thought that the power to detain was conferred by the Security Council Resolutions
on ISAF, as opposed to the troop-contributing nations. This is because, in agreement
with Lord Mance and for the same reasons, I consider that the unchallenged
evidence, accepted by the judge, shows that ISAF tacitly accepted the United
Kingdom’s right to adopt its own detention policy within the limits allowed by the
Resolutions.
Impact of the European Convention on Human Rights
40. All international human rights instruments include provisions which
potentially affect the conduct of military operations in an armed conflict. Those
which protect the rights to life and liberty are the most likely to be relevant. In the
European Convention on Human Rights, these rights are protected by articles 2 and
5. Article 5 provides, so far as relevant:
“(1) Everyone has the right to liberty and security of person.
No one shall be deprived of his liberty save in the following
cases and in accordance with a procedure prescribed by law:
…
(c) the lawful arrest or detention of a person effected
for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having
committed an offence or when it is reasonably
Page 21