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High Court rules that the UK’s detention regime in Afghanistan is unlawful



High Court rules that the UK’s detention policies in Afghanistan breach Afghan law and the UK Human Rights Act.


2 May 2014

The High Court has today unambiguously ruled that the UK’s detention policies in Afghanistan breach Afghan law and the UK Human Rights Act.


The judgment by Mr Justice Leggatt was delivered in the case of Serdar Mohammed, a young Afghan man who was detained by British troops in 2010 and held by them without charge and without access to a lawyer for 110 days before being handed over to the Afghan security services, whom he alleges brutally tortured him. 


 


Leigh Day, who represent Mr Mohammed, argued that while the UN Security Council resolutions which govern British Forces may have given them the right to capture him, they did not confer a right to hold him incommunicado for over four months.
 


ISAF’s own regulations clearly state that Afghan nationals who are captured by international forces should only be held for a maximum of 96 hours, after which they should either be handed over to the Afghan authorities for prosecution or released.

Since 2009, however, the UK has held some detainees, like Mr Mohammed, for far longer in order to exploit them for intelligence gathering.
 


Mr Justice Leggatt found that Mr Mohammed's detention for an extra 106 days was in "stark violation" of his rights, particularly in circumstances where he was not brought before a judge nor given any opportunity to challenge the basis of his detention:


“Decisions were…made to adopt a detention policy and practices in pursuit of military objectives which went beyond the legal powers available to the UK. The consequence of those decisions is that the MOD has incurred liabilities to those who have been unlawfully detained”. 


 


He also found that it would have been apparent to the MoD that its forces were acting without legal authority:

“The decision that [Mr Mohammed’s] detention after 96 hours was unlawful will not come as a surprise to the MoD. It is apparent from documents to which I have referred…that the MOD formed the view at an early stage that there was no legal basis on which UK forces could legitimately detain individuals for longer than the maximum 96 hour period authorized by ISAF...
 


"The UK explored the possibility of obtaining the agreement of NATO and other nations participating in ISAF to extending the 96 hour detention period…and concluded that such agreement was not achievable.


"The solution adopted in 2009 was for the UK to adopt its own policy permitting detention beyond 96 hours for intelligence purposes, but without obtaining any additional powers to provide a legal basis for doing so.”
 


A spokesperson from Leigh Day said:


“When we send our troops abroad it is the Ministry of Defence’s job to ensure that the mechanisms are put in place to ensure that they operate within the rule of law.
 


“As the Court has made clear, the MoD fully understood the parameters of the law regarding detention and yet they decided to operate flagrantly outside those rules.”

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