The High Court of Justice has issued a ruling in a case brought by Serdar Mohammed, an Afghan civilian imprisoned in Afghanistan, against the UK Ministry of Defence.
The ruling is 121 pages long and has close analysis of numerous points on the intersection of Afghan, English, European, and international law:
a long judgment which discusses many issues and arguments
2014 EWHC 1369 (QB)
But it can be fairly reduced down to say: UK detention practices in Afghanistan are illegal.
Serdar Mohammed, who was held in 2010 on suspicion of being a Taliban commander, is seeking damages for alleged breaches of his human rights.
The ruling centres on his detention for more than 100 days on UK bases.
The Ministry of Defence said that the decision could hamper the security of troops on the ground and it would appeal.
The court heard International Security Assistance Force procedures permitted detentions for a maximum of 96 hours, after which time people needed to either be released or handed over to the Afghan authorities.
UK Afghan detention policy ruled unlawful by High Court, BBC
Serdar Mohammed says he was captured when he was irrigating his family’s fields near
his home in northern Helmand, when British soldiers arrived by helicopter and arrested him.
The UK says he was captured after a helicopter assault on a senior Taliban commander and his vehicle, where Mohammed had fled the battle and ditched an RPG.
Mohammed says he is an illiterate farmer. The UK says it subsequently received information that he was a senior Taliban commander, an IED manufacturer, a leader of a training camp, and known as Mullah Gulmad.
The court accepts the Ministry of Defence version at points. Though "subsequently received information" suggests information derived from torture by the Afghan National Directorate of Security. The dispute on fact, or the torture, is not especially important in the ruling. UK detention practices in Afghanistan are illegal, either way.
The ISAF mission, which the British were operating under, had originally been much more limited. The jurisdiction expanded from Kabul, to across the whole country, and the mission became more and more focused on waging war against an insurgency, from an original mission of training Afghan National Security Forces and assisting the Afghan government in building institutions.
The operating rules were based in international law and had none of the later American conceptions of detention and interrogation powers coming from a war on terror.
The current policy for ISAF is that detention is permitted for a maximum of 96 hours after which time an individual is either to be released or handed into the custody of the ANSF [i.e. Afghan National Security Forces]/GOA [i.e. Government of Afghanistan].
In 2009, the UK military had wanted to allow for "intelligence exploitation." There was no chance that the wider ISAF coalition would go along with this change. So, in the UK's own words, helpful lawyers were asked to determine that the rules were merely guidelines and need not be followed.
ISAF Legal Advisors were asked and helpfully confirmed that the ISAF SOPs were guidelines rather than a legal requirement. This therefore allows countries to apply National Policy Caveats to the 96 hour rule.
The Ministry of Defence documentation seeking the change comes under high focus in the ruling:
In a devastating passage, the judge said his conclusion that [Mohammed's] detention after 96 hours was unlawful "will not come as a surprise to the MoD". It was apparent from documents he had seen that the MoD formed the view at an early stage that there was no legal basis on which UK armed forces could detain individuals in Afghanistan for longer than the maximum 96 hours authorised by international Nato-led troops in Afghanistan.
Leggatt added: "Legal advice also confirmed that there was no basis upon which UK forces could legitimately detain individuals for longer periods in the interest of interrogating them because they were believed to have information of intelligence value."
As the MoD itself recognised in a memo in 2006, "the reality of the legal basis for our presence in Afghanistan is such that available powers may fall short of that which military commanders on the ground might wish."
Leggatt noted: "Nothing happened subsequently to alter that reality."
MoD broke law in holding Afghan prisoners too long, judge rules, Guardian
The United States and Afghanistan have been engaged in a significant power struggle over control of prisoners in recent years. In the latest maneuverings, an Afghan commission finds that American and British detention practices are illegal.
President Hamid Karzai’s government is accusing the U.S. and British military of operating secret detention facilities in Afghanistan, a development that could further strain relations between Afghanistan’s leader and the West.
After receiving reports about Afghan detainees at coalition bases, Karzai established a fact-finding commission to study the matter. On Tuesday, it announced that it had found six detention centers that run afoul of an Afghan law requiring all prisoners from the country be held in Afghan-run jails.
Abdul Shokur Dadras, a member of the commission, said two of the jails were overseen by British soldiers at Camp Bastion in Helmand province, while a third jail at that base was under American military control. At Kandahar Airfield, also in the southern part of the country, three more foreign-run prisons were discovered — one controlled by American soldiers, one by the British and one managed by a joint coalition force, Dadras said.
Afghan officials accuse U.S., British military of maintaining secret prisons on their bases, Washington Post
As a considerable complexity here, though, American or British turnover of captured prisoners to the Afghan National Directorate of Security would be illegal as well, where there is a significant risk of torture.
Related Diaries
- I Hope They Washed Their Hands Well Afterwards. In 2012, during a related lawsuit by Serdar Mohammed, an email mysteriously appeared on the UK Ministry of Defence website. The email revealed attempts to get the name of Assadullah Khalid, then the head of the Afghan National Directorate of Security, into a forthcoming United Nations Assistance Mission report on torture in Afghanistan. The diary, a long judgment, details, among many issues, some of Assadullah Khalid's history.
- In the Hands of the UK. A short diary with some quotes about Serdar Mohammed's treatment by the UK.
- This Place Used To Be Nice. Serdar Mohammed is from Kajaki district in Helmand province. This diary tells the Promethean story of the British military attempt to deliver a new turbine to the Kajaki dam.