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

(3) The procedural provisions of article 5, in particular article 5(4), may
fall to be adapted where this is necessary in the special circumstances of
armed conflict, provided that minimum standards of protection exist to ensure
that detention is not imposed arbitrarily. The minimum standard of protection
is a standard equivalent to that imposed by articles 43 and 78 of the Fourth
Geneva Convention. This involves an initial review of the appropriateness of
detention, followed by regular reviews thereafter, by an impartial body in
accordance with a fair procedure. These are the minimum requirements for
protection against arbitrary detention, and nothing in the Grand Chamber’s
decision in Hassan justifies any departure from them. Indeed, it is clear that
in the Court’s view, the continuing existence of these procedural obligations
in large measure justified reading the six permitted occasions for detention
as non-exhaustive in conditions of armed conflict. In the following sections
of this judgment, I shall deal with the safeguards which were available to
those in SM’s position.
The circumstances of SM’s detention after his capture
69. Part II of SOI J3-9 dealt with the processing of detainees through temporary
holding facilities after capture, and their ultimate release or transfer to the Afghan
authorities.
70. The Detention Authority was required to decide within 48 hours whether the
prisoner should be released, further detained or transferred to the Afghan authorities.
The relevant paragraphs of Part II provided:
“19. The Detention Authority must decide whether to
release, transfer or further detain the detainee. This decision
must be made within 48·hours of the time of detention of the
detainee. To authorise continued detention, the Detention
Authority will need to be satisfied, on the balance of
probabilities, that it is necessary for self-defence or that the
detainee has done something that makes him a threat to Force
Protection or Mission-Accomplishment.
…
24. Logistical Extensions. On some occasions, practical,
logistic reasons will entail a requirement to retain a UK
detainee for longer than the 96 hours. Such occasions would
normally involve the short-notice non- availability of pre-
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