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

states had an obligation to give effect to resolutions of the Security Council which
prevailed over obligations under the European Convention. This was because the
relevant Security Council Resolution left the choice of methods to the multinational
force in Iraq. In the absence of sufficiently specific language the Security Council’s
authorisation to use “all necessary measures” did not therefore create an obligation
to detain even if it created a power to do so. The Strasbourg court reached a similar
conclusion in two cases arising out of Security Council Resolutions imposing
sanctions on specified individuals: Nada v Switzerland (2012) 56 EHRR 18, and Al-
Dulimi and Montana Management Inc v Switzerland (Application No 5809/08)
(judgment delivered 21 June 2016). In both cases article 103 of the United Nations
Charter was held to be inapplicable because the sanctions resolutions left enough
discretion to member states to fall short of an obligation.
48. In equating the application of physical force with the exercise of jurisdiction,
the decision of the Strasbourg court in Al-Skeini was consistent with the opinion of
the United Nations Human Rights Committee, which has treated extraterritorial
kidnappings as exercises of state jurisdiction: see Lopez Burgos v Uruguay (Case
No C-52/79) (1981) 68 ILR 41 and Lilian Celiberti de Casariego v Uruguay (Case
No C-56/79) (1981) 68 ILR 29. The principle in Al-Skeini was also adopted by this
court in Smith v Ministry of Defence [2014] AC 52, in the admittedly rather different
context of the state’s duties to its own soldiers. But it goes substantially further than
the jurisprudence of the International Court of Justice, which has thus far recognised
the extraterritorial application of human rights treaties only in cases where
governmental powers are exercised by a state in the course of a military occupation
of foreign territory: see Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory, Advisory Opinion, [2004] ICJ Rep 136, para 109;
Armed Activities on the Territory of the Congo (Democratic Republic of the Congo
v Uganda) Judgment, [2005] ICJ Rep 168, para 216. It also gives rise to serious
analytical and practical difficulties, when applied to a state’s treatment of enemy
combatants outside its own territory, because the practical effect is to apply the
Convention to any extra-territorial exercise of force. This is not consistent with the
essentially regional character of the Convention. It goes well beyond the ordinary
concept of extra-territorial jurisdiction in international law, which is generally
confined to territory where the state is the governmental authority or occupying
power and to enclaves of national jurisdiction such as ships, aircraft, military
establishments or diplomatic premises. It thereby requires a Convention state to
apply its terms in places where it has no effective administrative control and no legal
right to effective administrative control. It brings the Convention into potential
conflict with other sources of international law such as the Charter and acts of the
United Nations, as well as with the municipal law of the territory in question. It
requires the application of the Convention to the conduct of military operations for
which it was not designed and is ill-adapted, and in the process cuts across
immunities under national law which may be fundamental to the constitutional
division of powers, as they arguably are in the United Kingdom. The ambit of article
1 of the Convention is a matter of particular sensitivity to any Convention state. At
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