“1. The participants in the UN Talks on Afghanistan recognise that the responsibility for providing security for law and order throughout the country resides with the Afghans themselves. To this end, they pledge their commitment to do all within their means and influence to ensure such security, including for all United Nations and other personnel of international governmental and non-governmental organisations deployed in Afghanistan. 2. With this objective in mind, the participants request the assistance of the international community in helping the new Afghan authorities in the establishment and training of new Afghan security and armed forces. 3. Conscious that some time may be required for the new Afghan security and armed forces to be fully constituted and functioning, the participants in the UN Talks on Afghanistan request the United Nations Security Council to consider authorising the early deployment to Afghanistan of a United Nations mandated force. This force will assist in the maintenance of security for Kabul and its surrounding areas. Such a force could, if appropriate, be progressively expanded to other urban centres and other areas. 4. The participants in the UN Talks on Afghanistan pledge to withdraw all military units from Kabul and other urban centres and other areas in which the UN mandated force is deployed. It would also be desirable if such a force were to assist in the rehabilitation of Afghanistan's infrastructure.”
“the right of UK forces operating under ISAF to arrest and detain persons where necessary for force protection, self-defence, and accomplishment of mission so far as is authorised by the relevant UNSCRs”
“The UK [armed forces] will only arrest and detain personnel where permitted under ISAF Rules of Engagement. All detainees will be treated by UK [armed forces] in accordance with applicable provisions of international human rights law. Detainees will be transferred to the authorities of Afghanistan at the earliest opportunity where suitable facilities exist. Where such facilities are not in existence, the detainee will either be released or transferred to an ISAF approved holding facility.”
“The conduct of an organ of a state or an organ or agent of an international organization that is placed at the disposal of another international organization shall be considered under international law an act of the latter organization if the organization exercises effective control over that conduct.”
“Against the factual backgrounds described above a number of questions must be asked in the present case. Were UK forces placed at the disposal of the UN? Did the UN exercise effective control over the conduct of UK forces? Is the specific conduct of the UK forces in detaining the appellant to be attributed to the UN rather than the UK? Did the UN have effective command and control over the conduct of UK forces when they detained the appellant? Were the UK forces part of a UN peacekeeping force in Iraq? In my opinion the answer to all these questions is in the negative.”
“The analogy of the situation in Kosovo breaks down, in my opinion, at almost every point. The international security and civil presences in Kosovo were established at the behest of the UN and operated under its auspices, with UNMIK a subsidiary organ of the UN. The multi-national force in Iraq was not established at the behest of the UN, was not mandated to operate under UN auspices and was not a subsidiary organ of the UN. There was no delegation of UN power in Iraq. It is quite true that duties to report were imposed in Iraq as in Kosovo. But the UN’s proper concern for the protection of human rights and observance of humanitarian law calls for no less, and it is one thing to receive reports, another to exercise effective command and control”
“[Chief of Staff] ISAF has intervened personally, asserting that the ISAF SOP is binding on the UK and that there is no reason why the UKTF [Task Force] should not be operating under ISAF procedures. These procedures require that COMISAF authorise any detention of an individual beyond the 96-hour deadline. It has been explained that the UK position is that this responsibility, based as it is in international and domestic law, is legally binding and requires that decisions on this subject are taken by UK Officials, in order to ensure that the legal obligations of the UK are properly discharged. It is understood that PJHQ Officials have now made this point to NATO HQ and so it is hoped that HQ ISAF will soon be directed to accept the UK position.”
“Experts … performing missions for the United Nations shall be accorded such privileges and immunities as are necessary for the independent exercise of their functions during the period of their missions, including the time spent on journeys in connection with their missions. In particular they shall be accorded: … (b) In respect of … acts done by them in the course of the performance of their mission, immunity from legal process of every kind. This immunity from legal process shall continue to be accorded notwithstanding that the persons concerned are no longer employed on missions for the United Nations.”
“… [A]s a prior threshold point, the United Kingdom Government relies on the immunity given to experts on a United Nations mission by Section 22 of the General Convention, the special meaning of which is (as the Government submits) reflected in the [Military Technical Agreement] and applies to ISAF. The Government’s position is that the claims of unlawful detention (made in Mr Mohammed’s case by reference to both Afghan law andArticle 5 of the European Convention on Human Rights ) should be dismissed on that ground.”
“With respect to the specific legal issues raised in your letters, operations authorized by the Security Council and conducted under the control of States or regional organizations – as was the case with ISAF – are distinct and separate from the United Nations. These authorized operations are therefore different from United Nations operations, such as peacekeeping operations, that are considered to be subsidiary organs of the Security Council. The Organization’s longstanding practice on the issue is reflected, for instance, in the amicus briefs submitted by the United Nations to the European Court of Human Rights regarding the cases Behrami and Behrami v. France (Application No. 71412/01) and Saramati v. France,Norway and Germany (Application No. 78166/01) as well as regarding the case Atallah v. France (Application No. 51987/07). The 1946 Convention on the Privileges and Immunities of the United Nations applies to Security Council subsidiary organs such as United Nations peacekeeping operations. It does not, however, apply to operations authorized by the Security Council and conducted under the control of States or regional organizations. Consequently, the 1946 Convention on the Privileges and Immunities of the United Nations does not apply as such to ISAF and its personnel. Accordingly, the question of waiver by the Secretary-General of any immunity enjoyed by ISAF and its personnel on the basis of the application of the 1946 Convention as such does not arise.”
“The United Nations is not a party to the [Military Technical Agreement]. It is therefore not for the United Nations to seek to interpret the [Military Technical Agreement]’s terms. The United Nations further does not understand the [Military Technical Agreement] to impose any obligations or confer any rights on the Organization or on the Secretary-General in particular. Consequently, whether or not, by virtue of the [Military Technical Agreement], ISAF and its personnel are entitled to immunities similar to those accorded to experts on mission under the 1946 Convention, it would not be for the Secretary-General to decide whether or not such immunities should be waived. Accordingly, the Secretary-General expresses no view as to the possible assertion or waiver of any immunity in this case.”
“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.”
“Article 1 sets a limit, notably territorial, on the reach of the Convention. In particular, the engagement undertaken by a Contracting State is confined to ‘securing’ (‘reconnaître’ in the French text) the listed rights and freedoms to persons within its own ‘jurisdiction’. Further, the Convention does not govern the actions of States not Parties to it, nor does it purport to be a means of requiring the Contracting States to impose Convention standards on other States.”
“59. As to the “ordinary meaning” of the relevant term inArticle 1 of the Convention , the Court is satisfied that, from the standpoint of public international law, the jurisdictional competence of a State is primarily territorial. While international law does not exclude a State’s exercise of jurisdiction extraterritorially, the suggested bases of such jurisdiction (including nationality, flag, diplomatic and consular relations, effect, protection, passive personality and universality) are, as a general rule, defined and limited by the sovereign territorial rights of the other relevant States… 60. Accordingly, for example, a State’s competence to exercise jurisdiction over its own nationals abroad is subordinate to that State’s and other States’ territorial competence… In addition, a State may not actually exercise jurisdiction on the territory of another without the latter’s consent, invitation or acquiescence, unless the former is an occupying State in which case it can be found to exercise jurisdiction in that territory, at least in certain respects… 61. The Court is of the view, therefore, thatArticle 1 of the Convention must be considered to reflect this ordinary and essentially territorial notion of jurisdiction, other bases of jurisdiction being exceptional and requiring special justification in the particular circumstances of each case…”
“… In short, the Convention is a multi-lateral treaty operating, subject toArticle 56 of the Convention , in an essentially regional context and notably in the legal space (espace juridique) of the Contracting States. … The Convention was not designed to be applied throughout the world, even in respect of the conduct of Contracting States. Accordingly, the desirability of avoiding a gap or vacuum in human rights’ protection has so far been relied on by the Court in favour of establishing jurisdiction only when the territory in question was one that, but for the specific circumstances, would normally be covered by the Convention.”
“as a consequence of lawful or unlawful military action, a contracting state exercises effective control of an area outside that national territory”
“The Court does not consider that jurisdiction in the above cases arose solely from the control exercised by the Contracting State over the buildings, aircraft or ship in which the individuals were held. What is decisive in such cases is the exercise of physical power and control over the person in question. It is clear that, whenever the State through its agents exercises control and authority over an individual, and thus jurisdiction, the State is under an obligation under Article 1 to secure to that individual the rights and freedoms under Section 1 of the Convention that are relevant to the situation of that individual. In this sense, therefore, the Convention rights can be “divided and tailored”.”
“It can be seen, therefore, that following the removal from power of the Ba’ath regime and until the accession of the Interim Government, the United Kingdom (together with the United States) assumed in Iraq the exercise of some of the public powers normally to be exercised by a sovereign government. In particular, the United Kingdom assumed authority and responsibility for the maintenance of security in South East Iraq. In these exceptional circumstances, the Court considers that the United Kingdom, through its soldiers engaged in security operations in Basrah during the period in question, exercised authority and control over individuals killed in the course of such security operations, so as to establish a jurisdictional link between the deceased and the United Kingdom for the purposes ofArticle 1 of the Convention .”
“… [T]he Court considers that the protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation of the kind to be found in Article 4 of the International Covenant on Civil and Political Rights. As regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law.”
“104. Nonetheless, and consistently with the case-law of the International Court of Justice, the Court considers that, even in situations of international armed conflict, the safeguards under the Convention continue to apply, albeit interpreted against the background of the provisions of international humanitarian law. By reason of the coexistence of the safeguards provided by international humanitarian law and by the Convention in time of armed conflict, the grounds of permitted deprivation of liberty set out in subparagraphs (a) to (f) of that provision should be accommodated, as far as possible, with the taking of prisoners of war and the detention of civilians who pose a risk to security under the Third and Fourth Geneva Conventions. The Court is mindful of the fact that internment in peacetime does not fall within the scheme of deprivation of liberty governed byArticle 5 of the Convention without the exercise of the power of derogation under Article 15 (see paragraph 97 above). It can only be in cases of international armed conflict, where the taking of prisoners of war and the detention of civilians who pose a threat to security are accepted features of international humanitarian law, that Article 5 could be interpreted as permitting the exercise of such broad powers. 105. As with the grounds of permitted detention already set out in those subparagraphs, deprivation of liberty pursuant to powers under international humanitarian law must be “lawful” to preclude a violation of Article 5 § 1. This means that the detention must comply with the rules of international humanitarian law and, most importantly, that it should be in keeping with the fundamental purpose of Article 5 § 1, which is to protect the individual from arbitrariness …”
“i) Reaffirming its strong commitment to the sovereignty, independence, territorial integrity and national unity of Afghanistan; ii) Recognising that the responsibility for providing security and law and order throughout the country resides with the Afghan Authorities, stressing the role of [ISAF] in assisting the Afghan Government to improve the security situation; iii) Stressing the central and impartial role that the United Nations continues to play in promoting peace and stability in Afghanistan by leading the efforts of the international community, noting, in this context, the synergies in the objectives of the United Nations Assistance Mission in Afghanistan (UNAMA) and of ISAF; iv) Expressing its strong concern about the security situation in Afghanistan, in particular the increased violent and terrorist activities by the Taliban, AlQaida, illegally armed groups, criminals and those involved in the narcotics trade; v) Expressing also its concern over the harmful consequences of violent and terrorist activities by the Taliban, Al-Qaida and other extremist groups on the capacity of the Afghan Government to guarantee the rule of law, to provide security and basic services to the Afghan people, and to ensure the full enjoyment of their human rights and fundamental freedoms; vi) Condemning in the strongest terms all attacks including Improvised Explosive Device (IED) attacks, suicide attacks and abductions, targeting civilians and Afghan and international forces …; vii) Expressing its serious concern with the high number of civilian casualties and calling for compliance with international humanitarian and human rights law and for all appropriate measures to be taken to ensure the protection of civilians; viii) Determining that the situation in Afghanistan still constitutes a threat to international peace and security; and ix) Determining to ensure the full implementation of the mandate of ISAF, in coordination with the Afghan Government.”
“Authority to Detain 4. The only grounds upon which a person may be detained under current ISAF Rules of Engagement (ROE) are: if the detention is necessary for ISAF force protection; for the self-defence of ISAF or its personnel; for accomplishment of the ISAF Mission. Detention 5. … 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] A footnote to paragraph 5 stated that: “It is accepted that detention will take place under National guidelines. However, the standards outlined within this SOP are to be considered the minimum necessary to meet international norms and are to be applied. …. The Powers of the Detention Authority 7. A Detention Authority [defined as an individual authorised to make detention decisions] may authorise detention for up to 96 hours following initial detention. Should the Detention Authority believe that continued detention beyond 96 hours is necessary then, prior to the expiration of the 96-hour period, the Detention Authority shall refer the matter by the chain of command to HQ ISAF. Authority for Continued Detention 8. The authority to continue to detain an individual beyond the 96 hour point is vested in COMISAF (or his delegated subordinate). A detainee may be held for more than 96 hours where it has been necessary in order to effect his release or transfer in safe circumstances. This exception is not authority for longer term detention but is intended to meet exigencies such as that caused by local logistical conditions e.g. difficulties involving poor communication, transport or weather conditions or where the detainee is held in ISAF medical facilities and it would be medically imprudent to move him.”
“[T]he first and foremost restriction imposed by international law upon a State is that – failing the existence of a permissive rule to the contrary – it may not exercise its power in any form in the territory of another State. It does not, however, follow that international law prohibits a State from exercising jurisdiction in its own territory, in respect of any case which relates to acts which have taken place abroad, and in which it cannot rely on some permissive rule of international law. Such a view would only be tenable if international law contained a general prohibition to States to extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, and if, as an exception to this general prohibition, it allowed States to do so in certain specific cases. But this is certainly not the case under international law as it stands at the present. Far from laying down a general prohibition that States may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, it leaves them in this respect a wide measure of discretion which is only limited in certain cases by prohibitive rules; as regards other cases, every State remains free to adopt the principles which it regards as best and most suitable.”
“is not incompatible with the view that existing general practice raises a presumption of opinio iuris [for the purposes of the development of a rule of customary international law] … the tenor of the judgment is hostile to such a presumption”
“The law of non-international armed conflict is less explicit in stipulating the legal basis for operational detention than the law of international armed conflicts. However, a generic power to that effect is implicit in Common Article 3, in as much as it identifies as one category of persons taking no active part in hostilities ‘those placed hors de combat by …detention’”
“shared by the ICRC, is that both customary and treaty international humanitarian law contain an inherent power to intern and may in this respect be said to provide a legal basis for internment in non-international armed conflict. This position is based on the fact that internment is a form of deprivation of liberty, which is a common occurrence in armed conflict, not prohibited by Common Article 3, and that Additional Protocol II – which has been ratified by 167 States – refers explicitly to internment.”
“it would be absurd to accept an interpretation of international humanitarian law that results in a state’s possessing the legal authority to kill actor X on purpose but lacking the legal authority to detain actor X. States would otherwise have a perverse incentive to kill individuals who pose a military threat if the alternative were to let them go free”
“I agree with Mr Justice Leggatt’s holding that [international humanitarian law] does not provide authorisation to detain in a [non-international armed conflict], and thus ‘the only potential sources of a power to detain are considered to be the host state’s own domestic law…and [UN Security Council Resolutions]” but also that “international humanitarian law does not prohibit (it allows for) detention of civilians who pose a security threat in non international armed conflict.”
“[T]his savings clause…recognises that the Copenhagen Process Principles and Guidelines is not a text of a legally binding nature and thus does not create new obligations or commitments. Furthermore, the Copenhagen Process Principles and Guidelines cannot constitute a legal basis for detention. Although some language, e.g. Principle 2, may reflect legal obligations in customary and treaty law, the Copenhagen Process Principles and Guidelines are intended to reflect generally accepted standards. In such instances, the applicability and binding nature of those obligations is established by treaty law or customary international law, and not by the Copenhagen Process Principles and Guidelines. Since the Copenhagen Process Principles and Guidelines were not written as a restatement of customary international law, the mere inclusion of a practice in the Copenhagen Process Principles and Guidelines should not be taken as evidence that States regard the practice as required out of a sense of legal obligation.”
“the gaps in the regulation of the conduct of hostilities in Additional Protocol II have largely been filled through State practice, which has led to the creation of rules parallel to those in Additional Protocol I, but applicable as customary law to noninternational armed conflicts.”
“The emergence of…general rules on internal armed conflicts does not imply that internal strife is regulated by general international law in all its aspects. Two particular limitations may be noted: (i) only a number of rules and principles governing international armed conflicts have gradually been extended to apply to internal conflicts; and (ii) this extension has not taken place in the form of a full and mechanical transplant of those rules to internal conflicts; rather, the general essence of those rules, and not the detailed regulation they may contain, has become applicable to internal conflicts.”
“[b]ut the same approach cannot be adopted in international law, which is based upon the common consent of nations. It is not for a national court to “develop” international law by unilaterally adopting a version of that law which, however desirable, forward-looking and reflective of values it may be, is simply not accepted by other states.”
“…an act of the executive as a matter of policy performed in the course of its relations with another state, including its relations with the subjects of that state, unless they are temporarily within the allegiance of the Crown”
“This and other aspects of UK detention policy and practice in Afghanistan can be reviewed by the English courts in accordance with established principles of public law. But if and insofar as acts done in Afghanistan by agents of the UK state in carrying out its policy infringe Afghan domestic law, that in my opinion is a matter for which redress must be sought in the courts of Afghanistan. It is not the business of the English courts to enforce against the UK state rights of foreign nationals arising under Afghan law for acts done on the authority of the UK government abroad, where to do so would undercut the policy of the executive arm of the UK state in conducting foreign military operations.”
“The transactions of independent States between each other are governed by other laws than those which Municipal Courts administer: such Courts have neither the means of deciding what is right, nor the power of enforcing any decision which they may make.”
“Certainly an injury inflicted upon a foreigner abroad which is done pursuant to a policy which is not justiciable by the courts and which is either authorised or ratified by the Crown is for this purpose an “act of state” and cannot be made the subject of an action in the English courts, but it is doubtful whether, as an answer to a claim in tort, act of state goes any further than that.”
“The other case which is, I think, clear is where the act complained of was done against an alien outside her Majesty’s dominion. Since Buron v. Denman (1848) 2 Ex. 167, it has been accepted that if the act was ordered or has been ratified by the British Government the English courts cannot give redress to that alien. He may enlist the support of his own government but he has no remedy in England.” and Lord Morris observed (at pg 220B-C): “But the situation in the present case and the claims as formulated differ fundamentally from those in Buron v. Denman. Though the conception of an act of state as illustrated in Buron v. Denman has been so recognised that it cannot now be overthrown, I would hope that occasions for dependence on it as a defence will become increasingly rare.”
“It may be pleaded against an alien in respect of an act done abroad, but not in any circumstances against a British subject, nor may it be pleaded against a friendly alien resident in the United Kingdom, at any rate when the wrongful act was committed within British jurisdiction. Its scope of operation is the whole field of governmental or official activity in relation to the Crown’s dealings with foreign States, and the form assumed by it is for the defendant, if so authorized by the appropriate Government Department, to plead “act of State”, i.e. that in doing the act, or making the omission, complained of by the plaintiff he (the defendant) was acting in an official capacity.” (McNair, International Law Opinions, (1956), Vol. 1, at pg 111.) Lord McNair then describes the rule excluding certain acts of the Crown from justiciability as follows: “The term “act of State” is used, not only narrowly to describe the defence explained above, but also, perhaps somewhat loosely, to denote a rule which is wider and more fundamental, namely, that “those acts of the Crown which are done under the prerogative in the sphere of foreign affairs” (sometimes called “acts of State” or “matters of State”); for instance, the making of peace and war, the annexation or abandonment of territory, the recognition of a new State or the new Government of an old State, etc., cannot form the basis of an action brought against the Crown, or its agents or servants, by any person, British or alien, or by any foreign State, in British municipal tribunals. Such acts are not justiciable in British courts, at the suit either of British subjects or of aliens; they may form the subject of political action in Parliament or, when the interests of foreign States or their nationals are involved, of diplomatic protest or of any international judicial process that may be available.”
“Much confusion has resulted from the failure to perceive the distinction between the two meanings. It must, however, be confessed that the scope both of the defence of “act of State” and of the rule of the non-justiciability of certain “acts” or “matters of State”, is still obscure, as is he relation between the defence and the rule.” and adds: “It seems, however, to be clear that the plea of “act of state” and the rule of the nonjusticiability of certain matters are not the same thing, because the former is not valid against a British subject, whereas the latter is.”
“It has been held that the courts will not investigate the propriety of an act of the Crown performed in the course of its relations with a foreign State, or enforce any right alleged to have been created by such an act unless that right has been incorporated into English domestic law. … The expression “act of state” is also used to describe executive acts which are authorised or ratified by the Crown in the exercise of sovereign power. The victim of such an act is in some circumstances denied any redress against the actor because the act, once it has been identified as an act of state, is one which the court has no jurisdiction to examine. The defence can be raised in regard to an act performed outside the United Kingdom and its colonies against the person or property of an alien and is also available in regard to the deportation or internment of an alien of enemy nationality. The defence is probably not available in regard to acts affecting the property in the United Kingdom of a non-resident alien. It is an open question whether the defence can apply to acts performed outside the United Kingdom and its colonies against the person or property of a British citizen. The defence is inapplicable to an act performed within the United Kingdom and its colonies against the person or property of a British citizen or of a non-enemy alien present here.”
“2. Liability of the Crown in tort. (1) Subject to the provisions of this Act, the Crown shall be subject to all those liabilities in tort to which, if it were a private person of full age and capacity, it would be subject:- (a) in respect of torts committed by its servants or agents; 470. Provided that no proceedings shall lie against the Crown by virtue of paragraph (a) of this subsection in respect of any act or omission of a servant or agent of the Crown unless the act or omission would apart form the provisions of this Act have given rise to a cause of action in tort against that servant or agent or his estate.”
“It is unlawful for a public authority to act in a way which is incompatible with a Convention right.” and section 7(1) provides: “A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may – (a) bring proceedings against the authority under this Act in the appropriate court or tribunal …”
“It is now common ground that if a Convention right requires the court to examine and adjudicate upon matters which were previously regarded as non-justiciable, then adjudicate we must.”
“Our state cannot speak with two voices on such a matter, the judiciary saying one thing, the executive another.”
“Why does the court defer to the executive even in areas where the issue in dispute would be amenable to judicial review? The basis for this appears to be a recognition that where the state through the executive government asserts that its actions are intended to protect interests of state, and the court accepts that this is so, the courts ought not thereafter to undermine that executive action by questioning further its legality. Court and Crown should speak with one voice.”
“ The [Secretary of State] contends that Afghan law is the controlling law for the purposes of a claim in tort or delict, citingsection 11(1) of the Private International Law (Miscellaneous Provisions) Act 1995 . This, however, is not a tort claim. It is a claim based on the HRA and domestic public law. … The 1995 Act is a red herring.”