“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 Interim Administration recognises that the provision of security and law and order is their responsibility. This will include maintenance and support of a recognised Police Force operating in accordance with internationally recognised standards and Afghanistan law and with respect for internationally recognised human rights and fundamental freedoms, and by taking other measures as appropriate.”
“The Interim Administration understands and agrees that the ISAF Commander will have the authority, without interference or permission, to do all that the Commander judges necessary and proper, including the use of military force, to protect the ISAF and its Mission.”
“4. Authority to Detain. 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. 5. Detention. … 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]. … 7. The Powers of the Detention Authority. 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. 8. Authority for Continued Detention. 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. …”
“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 obligation upon the Detention Authority to review the conditions of detention is continuous. Once the circumstances supporting any of the justifying grounds outlined within the Authority to Detain are no longer present, then ISAF must release that individual. The fact that a person may have information of intelligence value is not by itself a basis for ISAF detention.”
“5. To date our policy in Afghanistan has been to avoid detaining individuals wherever possible. We have retained the capacity to detain for immediate force protection but this facility (at Camp Souter, in Kabul) has only been used a handful of times. … Although this policy has been tenable in Kabul and north Afghanistan the more challenging security environment in Helmand has required a review of the UK’s policy on detention. 6. The legal basis by which the UK might detain individuals differs between Afghanistan and Iraq. In Iraq the letters annexed to the UNSCR and referred to in it confirm an explicit right to intern for imperative reasons of security which is further clarified in Iraqi domestic law. In Afghanistan the UNSCR does not make reference to detention or internment. However, its authorisation for ISAF to use ‘all necessary measures’ infers that there is authority for temporary detention for the purposes of self defence. The UNSCRs can also be interpreted as authorising arrest and temporary detention for broader law enforcement purposes. Current ISAF policies permit detention for a maximum of 96 hours … 7. Although the legal basis differs, the operational circumstances which UK forces might face on the ground in Helmand are likely to share some of the characteristics of operations in southern Iraq. UK forces are likely to detain individuals and suspected criminals in line with ISAF policies. We will look to transfer such individuals to Afghan Authorities within the period of 96 hours. However it is also likely that there will be a need to detain others who, as in Iraq, are judged to pose a substantial and imminent threat to UK forces but may not have committed a criminal act. In such cases assessments may be taken on the basis of sensitive intelligence which we are unable to share with the Afghans. We may also have a strong interest in interrogating them to further develop our intelligence picture. Legal advice has confirmed that there is currently no basis upon which we can legitimately intern such individuals.”
“The considered advice is that [the Convention] will apply unless individuals are handed over to an Afghan official immediately upon pick up.”
“Detention is a complex and sensitive subject. 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, particularly in the early stages of the operation. Our initial starting point will be temporarily [to] detain individuals before transferring to the Afghan criminal system. … Longer term we need to continue to work to ensure access to detainees to further our intelligence picture, and potentially to consider options that might permit us to intern individuals who pose a security threat but may not have committed a crime.”
“The UK AF [armed forces] will only arrest and detain personnel where permitted under ISAF Rules of Engagement. All detainees will be treated by UK AF 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 benefits of intelligence exploitation are evident from Iraq where a significant proportion of operations are triggered by intelligence from detainees … In Afghanistan, however, we cannot replicate Iraq arrangements because UK forces have no power to intern under the extant UNSCR (only a power to temporarily detain is inferred). Moreover NATO policy limits detention to 96 hours before hand-over to the Afghan authorities. This constraint not only results in the loss of opportunities to gather valuable intelligence as a result of UK Task Force operations, but often results in detainees being quickly released by the Afghan authorities due to lack of evidence.”
“4. The UK, US and Canada recognised as early as 2007 that 96 hours was detrimental to the overarching campaign: i.e. it severely limits opportunities for intelligence exploitation and does not allow ISAF to build a comprehensive evidence pack for the Afghans therefore High Value Individuals (HVIs) otherwise known as National Security Threats (NSTs) were being released after 96 hours. This was deemed to be unacceptable by the main detaining nations in 2009 who considered two options: a) renegotiating the ISAF Guidelines in Brussels NATO and b) applying national policy caveats. 5. Discussions ensued. Option a) has never really been an option as there are only four key detaining nations (US, UK, Canada and the Netherlands) who detain significant numbers and conducted intelligence exploitation (and the latter were not concerned due to their withdrawal in Summer 2010). The UK, following discussions between London, Kabul and Brussels, decided that any approach to NATO would be unsuccessful as the non-detaining nations, or detaining nations who didn’t conduct exploitation, would not agree to an extension to the 96 hour guideline due to political sensitivities. In fact, there was a risk that reopening this debate may lead to a decrease in exploitation time in the ISAF Guidelines! 6. Option b) was therefore considered to be the only option. 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. 7. On6 November 2009 , following four months of discussion, Ministerial submissions and new processes being established, the UK publicly announced our intent to detain individuals for longer than 96 hours through a Written Ministerial Statement …”
“In the light of the evolving threat to our forces, we have continued to keep our approach to these [detention] operations under review. Under NATO guidelines individuals detained by ISAF are either transferred to the Afghan authorities within 96 hours for further action through the Afghan judicial process or released. And in the majority of cases, the UK armed forces will operate in this manner. However, in exceptional circumstances, detaining individuals beyond 96 hours can yield vital intelligence that would help protect our forces and the local population – potentially saving lives, particularly when detainees are suspected of holding information on the placement of improvised explosive devices. Given the ongoing threat faced by our forces and the local Afghan population, this information is critical, and in some cases 96 hours will not be long enough to gain that information from the detainees. Indeed, many insurgents are aware of the 96 hours policy and simply say nothing for that entire period. In these circumstances the Government have concluded that Ministers should be able to authorise detention beyond 96 hours, in British detention facilities to which the ICRC has access. Each case will be thoroughly scrutinised against the relevant legal and policy considerations; we will do this only where it is legal to do so and when it is necessary to support the operation and protect our troops. Following a Ministerial decision to authorise extended detention, each case will be thoroughly and regularly monitored by in-theatre military commanders and civilian advisors. Individuals will not remain in UK detention if there is no further intelligence to be gained. We will then either release the detainee or transfer the detainee to the Afghan authorities.”
“The UK Secretary of State for Defence will today inform in writing the UK Parliament of a change to UK policy on detention in Afghanistan. Recognising the sensitivities around the issue, I have been instructed to write to you, and to other members of the NAC, explaining the rationale for the decision. ... ISAF guidelines on detention state that detainees should be transferred to Afghan authorities within 96 hours or released. However, there are some cases where insurgents detained have valuable information which can save lives – British, Allied and Afghan – and assistance in defeating the insurgency and where that information can be lost if that person is released too early. ... The UK Government has therefore decided, in exceptional cases, UK Ministers may agree to extend detention beyond 96 hours, exceeding ISAF guidelines. The UK will extend detention only in exceptional circumstances. Each application for extension beyond 96 hours’ detention will be thoroughly scrutinised in accordance with strict legal and policy provisions. A UK Minister, or, exceptionally, a designated senior official, will be required to authorise each application. Those detained beyond 96 hours will remain subject to UK law and governed by strict legal and policy frameworks which detail the process, practice and oversight of detention operations. … I have been asked to stress that extensions to the 96-hour detention guideline will be sought in extremis only. We understand that different nations have different views on detention, which is why we have not sought to change the guidelines, indeed we will continue to abide by them the majority of the time. But I hope that you, and Permanent Representatives will also agree that in the face of the challenges we are encountering, we must do everything we can to protect our forces and to protect the Afghan people.”
“6. Detention Criteria. UK forces are authorised to conduct stops, search, detention and questioning procedures in accordance with [UNSCRs] for reasons of Force protection, Mission Accomplishment and Self-Defence. ISAF authorises detention for up to a maximum of 96 hours following the point of detention. … 7. Post-detention Requirements. Within 96 hours detainees will in most cases be either handed over to the Afghan Authorities in accordance with [the MOU] or released. Detention and evidence-gathering processes must be managed as a capability to ensure that they support the collection of tactical intelligence and assist the Afghan criminal justice system in achieving lawful convictions. … Detainees should only ever be detained beyond 96 hours in exceptional circumstances as follows: a. On medical or logistic grounds, with HQ ISAF authorisation (and Ministerial authority where appropriate) … b. With PJHQ and Ministerial authority”
“19. The Detention Authority must decide whether to release, transfer or further detain the detainee. This decision must be made within 48 hours 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. … 22. NDS [the Afghan National Directorate of Security] are only allowed to hold a detainee for 72 hrs without any evidence before they are forced to charge or release the detainee. … 23. Detention Timelines. Detainees should not routinely be held to the limit of detention. Although the Detention Authority has up to 96 hours from the point of detention to hand over a Detainee to the Afghan Authorities, as soon as he is satisfied that all evidence has been collated and is available … then the Detention Review should proceed. 24. Logistical Extensions. On some occasions, practical, logistic reasons will entail a requirement to retain a UK detainee for longer than the 96 hrs. Such occasions would normally involve the short-notice non-availability of pre-planned transport assets or NDS facilities to receive transferred detainees reaching full capacity. These occasions may lead to a temporary delay until physical means to transfer or release correctly can be reinstated. Where this is the case, authority to extend a detention for logistic reasons is to be sought from both HQ ISAF and from Ministers in the UK through the Detention Authority. … 27. Extension of Detention. … The following criteria are used to assist Ministers in deciding whether or not approve applications for extension of detention: a. Will the extension of this individual provide significant new intelligence vital to force protection? b. Will the extension of this individual provide significant new information on the nature of the insurgency? c. How long a period of detention has been requested? … 31. Ministerial Approval of Logistical Delays to Extension. In cases where UK forces wish to hold a detainee for longer than 96 hours or for longer than the existing ministerially-approved timeline … on the basis of logistic grounds as at para 23 above, further Ministerial approval is required. … It should be noted that Ministers view 24 hours as a reasonable period for transfer to be effected and that the case for logistic extension will have to be robust and unavoidable.”
“The courts are well able, with the assistance of expert evidence, to make findings on the meaning of foreign law, including its Constitution. It is something they do all the time. The lack of any authorities on the point does not alter matters.”
“Article 24 Liberty is the natural right of human beings. This right has no limits unless affecting others freedoms as well as the public interest, which shall be regulated by law. Liberty and human dignity are inviolable. The state shall respect and protect liberty as well as human dignity. Article 25 Innocence is the original state. The accused shall be innocent until proven guilty by the order of an authoritative court. Article 27 No deed shall be considered a crime unless ruled by a law promulgated prior to commitment of the offence. No one shall be pursued, arrested or detained without due process of law. No one shall be punished without the decision of an authoritative court taken in accordance with the provisions of the law, promulgated prior to commitment of the offence. Article 31 Upon arrest, or to prove truth, every individual can appoint defence attorney. Immediately upon arrest, the accused shall have the right to be informed of the nature of the accusation and appear before the court within the time limit specified by law. In criminal cases, the state shall appoint a defence attorney for the indigent. …”
“The state shall observe the United Nations Charter, inter-state agreements, as well as international treaties to which Afghanistan has joined, and the Universal Declaration of Human Rights. …”
“Article 2(2) of the Constitution of Bosnia and Herzegovina The rights and freedoms set forth in the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols shall apply directly. These shall have priority over all other law. Article 16 of the Constitution of Serbia The foreign policy of the Republic of Serbia shall be based on generally accepted principles and rules of international law. Generally accepted rules of international law and ratified international treaties shall be an integral part of the legal system of the Republic of Serbia and applied directly. Article 19 of the Constitution of Kosovo 1. International agreements ratified by the Republic of Kosovo become part of the internal legal system after their publication in the Official Gazette of the Republic of Kosovo. They are directly applied except for cases when they are not self-applicable and the application requires a promulgation of a law. 2. Ratified international agreements and legally binding norms of international law have superiority over the laws of the Republic of Kosovo.”
“Similar to the declarations of intent contained in the constitutions of Albania, Angola, Italy and Mongolia, the provision merely reaffirms Afghanistan’s commitment to previously-entered international treaties with particular reference to the UN Charter. The obligations arising from international treaties, however, are binding upon Afghanistan regardless of the commitment expressed in Article 7; those treaties are binding by virtue of signature and ratification not constitutional incorporation. Simply put, Article 7 does nothing other than pay lip service to Afghanistan’s pre-existing obligation to uphold the terms of international treaties.”
“Viewed from the public international law perspective, the legal value of the provision is minimal because Afghanistan remains bound to its international obligations regardless of whether the Constitution re-affirms its commitment to abide by its international obligations.”
“It is not insignificant that in the processes of constitution-building in Iraq and Afghanistan, international law was not made automatically applicable.”
“… upon its enforcement, laws and decrees contrary to provisions of this Constitution are invalid.”
“At the request of the Government, or courts, the Supreme Court shall review laws, legislative decrees, international treaties, as well international covenants for their compliance with the Constitution and their interpretation in accordance with the law.”
“Article 774 A person who commits a harmful act such as murder, beating resulting in injury etc or bodily harm, is obliged to compensate the damages sustained. Article 776 Whenever damage is inflicted to another person intentionally or by mistake, the perpetrator should compensate for the damages. Article 777 In case of any other damages inflicted to others, excluding those defined in the above articles, the perpetrator is obliged to pay compensation.”
“Any individual suffering damage without due cause from the administration shall deserve compensation, and shall appeal to a court for acquisition. Except in conditions stipulated by law, the State shall not, without the order of an authoritative court, claim its rights.”
“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention.”
“[t]he controlling state has the responsibility under art.1 to secure, within the area under its control, the entire range of substantive rights set out in the Convention and those additional Protocols which it has ratified. It will be liable for any violations of those rights.”
“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 or authority over an individual, and thus jurisdiction, the state is under an obligation under art.1 to secure to that individual the rights and freedoms under s.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’.”
“In these exceptional circumstances … 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 .”
“What is decisive in such cases is the exercise of physical power and control over the person in question.”
“1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law. 2. No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Article 3, 4 (paragraph 1) and 7 shall be made under this provision.”
“The international security presence with substantial [NATO] participation must be deployed under unified command and control and authorised to establish a safe environment for all people in Kosovo …”
“Since operations established by UNSC Resolutions under Ch. VII of the UN Charter are fundamental to the mission of the UN to secure international peace and security and since they rely for their effectiveness on support from Member States, the Convention cannot be interpreted in a manner which would subject the acts and omissions of contracting parties which are covered by the UNSC Resolutions and occur prior to or in the course of such missions, to the scrutiny of the Court. To do so would be to interfere with the fulfilment of the UN’s key mission in this field including, as argued by certain parties, with the effective conduct of its operations.”
“The conduct of an organ of a state or an organ or agent of an international organisation that is placed at the disposal of another international organisation shall be considered under international law an act of the latter organisation if the organisation exercises effective control over that conduct.”
“... 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 that 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 with 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 express 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 called for no less, and it is one thing to receive reports, another to exercise effective command and control.”
“The internment took place within a detention facility in Basrah City, controlled exclusively by British Forces, and the applicant was therefore within the authority and control of the United Kingdom throughout. The decision to hold the applicant in internment was made by the British officer in command of the detention facility. Although the decision to continue holding the applicant in internment was, at various points, reviewed by committees including Iraqi officials and non-UK representatives from the Multi-National Force, the Court does not consider that the existence of these reviews operated to prevent the detention from being attributable to the United Kingdom.”
“at no time did the US or the UK disclaim responsibility for the conduct of their forces [in Iraq] or the UN accept it. It cannot realistically be said that US and UK forces were under the effective command and control of the UN …”
“The conduct of an organ or an agent of an international organisation shall be considered an act of that organisation under international law if the organ or agent acts in that capacity, even though the conduct exceeds the authority of the organ or agent or contravenes instructions.”
“COS [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.”
“The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.”
“In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”
“Under the agreed arrangement, the MNF stands ready to continue to undertake a broad range of tasks to contribute to the maintenance of security and to ensure force protection. These include activities necessary to counter ongoing security threats posed by forces seeking to influence Iraq’s political future through violence. This will include combat operations against members of these groups, internment where this is necessary for imperative reasons of security, and the continued search for and securing of weapons that threaten Iraq’s security. …”
“the multi-national force shall have the authority to take all necessary measures to contribute to the maintenance of security and stability in Iraq in accordance with the letters annexed to this resolution …”
“a strong and to my mind persuasive body of academic opinion which would treat Article 103 as applicable where conduct is authorised by the Security Council as where it is required …”
“Thus there is a clash between on the one hand a power or duty to detain exercisable on the express authority of the Security Council and, on the other, a fundamental human right which the UK has undertaken to secure to those (like the appellant) within its jurisdiction. How are these to be reconciled? There is in my opinion only one way in which they can be reconciled: by ruling that the UK may lawfully, where it is necessary for imperative reasons of security, exercise the power to detain authorised by UNSCR 1546 and successive resolutions, but must ensure that the detainee’s rights under Article 5 are not infringed to any greater extent that is inherent in such detention.”
“We have devoted little attention to the precise scope of the authorisation. There must still be room for argument about what precisely is covered by the resolution and whether it applies on the facts of this case.”
“... in interpreting its resolutions, there must be a presumption that the Security Council does not intend to impose any obligation on Member States to breach fundamental principles of human rights. In the event of any ambiguity in the terms of a Security Council Resolution, the Court must therefore choose the interpretation which is most in harmony with the requirements of the Convention and which avoids any conflict of obligations. In the light of the United Nations’ important role in promoting and encouraging respect for human rights, it is to be expected that clear and explicit language would be used were the Security Council to intend states to take particular measures which would conflict with their obligations under international human rights law.”
“That (or very similar) language has been employed by the UNSC when it wished to authorise the use of force and it was plainly intended to carry such a connotation in Afghanistan. It would be wholly illogical for the authorisation to extend to the use of lethal force against persons but not to include their detention.”
“In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and at any place whatsoever with respect to the above-mentioned persons: a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; b) taking of hostages; c) outrages upon personal dignity, in particular, humiliating and degrading treatment; d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognised as indispensible by civilised peoples. (2) The wounded and sick shall be collected and cared for. An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict. The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.”
“take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organised armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.”
“[AP2 and CA3] are based on the principle of the equality of the parties to the conflict. ... These rules grant the same rights and impose the same duties on both the established government and the insurgent party, and all such rights and duties have a purely humanitarian character.”
“1. … the following provisions shall be respected as a minimum with regard to persons deprived of their liberty for reasons relating to the armed conflict, whether they are interned or detained: (a) the wounded and the sick shall be treated in accordance with Article 7; (b) the persons referred to in this paragraph shall, to the same extent as the local civilian population, be provided with food and drinking water and be afforded safeguards as regards health and hygiene and protection against the rigours of the climate and the dangers of the armed conflict; (c) they shall be allowed to receive individual or collective relief; (d) they shall be allowed to practise their religion … (e) they shall, if made to work, have the benefit of working conditions and safeguards similar to those enjoyed by the local civilian population. 2. Those who are responsible for the internment or detention of the persons referred to in paragraph 1 shall also, within the limits of their capabilities, respect the following provisions relating to such persons: (a) except when men and woman of a family are accommodated together, women shall be held in quarters separated from those of men and shall be under the immediate supervision of women; (b) they shall be allowed to send and receive letters and cards … (c) places of internment and detention shall not be located close to the combat zone. … (d) they shall have the benefit of medical examinations; (e) their physical or mental health and integrity shall not be endangered by any unjustified act or omission. … 3. Persons who are not covered by paragraph 1 but whose liberty has been restricted in any way whatsoever for reasons related to the armed conflict shall be treated humanely … 4. If it is decided to release persons deprived of their liberty, necessary measures to ensure their safety shall be taken by those so deciding.”
“Internment is … clearly a measure that can be taken in non-international armed conflict, as evidenced by the language of [AP2], which mentions internment in Articles 5 and 6 respectively …”
“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’. Articles 5 and 6 of [AP2] also refer to ‘persons deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained’, which makes it clear that the deprivation of physical liberty of a person is contemplated in the law applicable to non-international armed conflicts.”
“Like [CA3], [AP2] has a purely humanitarian purpose and is aimed at securing fundamental guarantees for all individuals in all circumstances.”
“Although the passage of only a short period of time is not necessarily, or, of itself, a bar to the formation of a new rule of customary international law on the basis of what was originally a purely conventional rule, an indispensable requirement would be that within the period in question, short though it might be, state practice, including that of states whose interests are specially affected, should have been extensive and virtually uniform in the sense of the provision invoked; and should moreover have occurred in such a way as to show a general recognition that a rule of law or legal obligations is involved.”
“Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The existence of such a belief, i.e. the existence of a subjective element, is implicit in the very notion of opinio juris sive necessitatis.”
“There is no consensus between states as to the extent to which rules of the law of armed conflict other than those specifically laid down in treaties apply to internal [i.e. non-international] armed conflicts.” 258. In addition, I referred earlier (in paragraph 39) to Joint Doctrine Publication 1-10 which states MOD doctrine for detention operations in overseas military operations. Section 113 of JDP 1-10 (2006) says: “During hostilities not amounting to International Armed Conflict, UK Forces can expect to deal with two classes of captured or detained persons: a. internees. UK forces operating abroad may have a power to intern civilians under the host nation’s law where they pose an imperative threat to the security of the force; such power may derive from the host state’s own domestic law or from a UN Security Council Resolution. b. Criminal Detainees. UK Armed Force operating abroad may have the power (derived from the host state’s own domestic law) to participate in the arrest of criminal suspects, or may assist the host nation’s authorised personnel in the arrest of persons. …”
“The prohibition of arbitrary deprivation of liberty … is established by State practice in the form of military manuals, national legislation and official statements, as well as on the basis of international human rights law. While all States have legislation specifying the grounds on which a person may be detained, more than 70 of them were found to criminalise unlawful deprivation of liberty during armed conflict. Most of this legislation applies the prohibition of unlawful deprivation of liberty to both international and non-international armed conflicts. Several military manuals which are applicable in or have been applied in non-international armed conflicts also prohibit unlawful deprivation of liberty.”
“4. Detention of persons must be conducted in accordance with applicable international law. When circumstances justifying detention have ceased to exist a detainee will be released. 5. Detaining authorities should develop and implement standard operating procedures and other relevant guidance regarding the handling of detainees. … 12. A detainee whose liberty has been deprived for security reasons is to, in addition to a prompt initial review, have the decision to detain reconsidered periodically by an impartial and objective authority that is authorised to determine the lawfulness and appropriateness of continued detention. 13. A detainee whose liberty has been deprived on suspicion of having committed a criminal offence is to, as soon as circumstances permit, be transferred to or have proceedings initiated against him or her by an appropriate authority. Where such transfer or initiation is not possible in a reasonable period of time, the decision to detain is to be reconsidered in accordance with applicable law. …”
“16. Nothing in The Copenhagen Process Principles and Guidelines affects the applicability of international law to international military operations conducted by the states or international organisations; or the obligations of their personnel to respect such law; or the applicability of international or national law to non-state actors.”
“This 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, as applicable, 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 applicable law may vary depending on whether there is a situation of armed conflict or not. As stated by the International Court of Justice ‘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’.”
“In principle, the right not arbitrarily to be deprived of one’s life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities.” ii) In its advisory opinion concerning Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004) ICJ Rep 136, the ICJ stated (at para 106): “As regards the relationship between IHL and human rights law, there are thus three possible situations: some rights may be exclusively matters of IHL; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law. In order to answer the question put to it, the Court will have to take into consideration both these branches of international law, namely human rights law and, as lex specialis, IHL.”
“the 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 ...”
“Where the ‘lawfulness’ of detention is an issue, including the question whether ‘a procedure prescribed by law’ has been followed, the Convention refers essentially to national law and also, where appropriate, to other applicable legal standards, including those which have their source in international law. In all cases it establishes the obligation to conform to substantive and procedural rules of the laws concerned, but it also requires that any deprivation of liberty be compatible with the purpose of Article 5, namely, to protect the individual from arbitrariness.”
“... where deprivation of liberty is concerned, it is particularly important that the general principle of legal certainty be satisfied. It is therefore essential that the conditions for deprivation of liberty under domestic and/or international law be clearly defined and that the law itself be foreseeable in its application, so that it meets the standard of ‘lawfulness’ set by the Convention, a standard which requires that all law be sufficiently precise to avoid all risk of arbitrariness and to allow the citizens – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances of the case, the consequences which a given action may entail.”
“On some occasions, practical, logistic reasons will entail a requirement to retain a UK detainee for longer than the 96 hrs. Such occasions would normally involve the short-notice non-availability of pre-planned transport assets or NDS facilities to receive transferred detainees reaching full capacity. These occasions may lead to a temporary delay until physical means to transfer or release correctly can be reinstated.”
“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.”
“the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so.”
“Everyone arrested or detained in accordance with the provision of paragraph 1(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power.”
“No violation of Article 5(3) can arise if the arrested person is released ‘promptly’ before any judicial control of his detention would have been feasible.”
“The use in the French text of the word ‘aussitôt’, with its constraining connotation of immediacy, confirms that the degree of flexibility attaching to the notion of ‘promptness’ is limited, even if the attendant circumstances can never be ignored for the purposes of the assessment under paragraph 3. Whereas promptness is to be assessed in each case according to its special features, the significance to be attached to those features can never be taken to the point of impairing the very essence of the right guaranteed by Article 5(3), that is the point of effectively negativing the state’s obligation to ensure a prompt release or a prompt appearance before a judicial authority.”
“to attach such importance to the special features of this case as to justify so lengthy periods of detention without appearance before a judge or other judicial officer would be an unacceptably wide interpretation of the plain meaning of the word ‘promptly’. An interpretation to this effect would import into Article 5(3) a serious weakening of a procedural guarantee to the detriment of the individual and would entail consequences impairing the very essence of the right protected by this provision.”
“The judicial control on the first appearance of an arrested individual must above all be prompt, to allow detection of any ill-treatment and to keep to a minimum any unjustified interference with individual liberties. The strict time constraint imposed by this requirement leaves little flexibility in interpretation, otherwise there would be a serious weakening of a procedural guarantee to the detriment of the individual and the risk of impairing the very essence of the right protected by this provision.”
“effected for the purpose of bringing the persons concerned ‘promptly’ before the ‘competent legal authority’, namely ‘a judge or other officer authorised by law to exercise judicial power’.”
“Whether the mere persistence of suspicion suffices to warrant the prolongation of a lawfully ordered detention on remand is covered, not by Article 5(1)(c) as such, but by Article 5(3); it is essentially the object of Article 5(3), which forms a whole with paragraph 1(c), to require provisional release once detention ceases to be reasonable.”
“If detention does not fit within the confines of the paragraph as interpreted by the Court, it cannot be made to fit by appeal to the need to balance the interests of the state against those of the detainee.”
“Any deprivation of liberty under the second limb of Article 5(1)(f) will be justified, however, only for as long as deportation or extradition proceedings are in progress.
“Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.”
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
“The possibility for a detainee to be heard either in person or through some form of representation features among the fundamental guarantees of procedure applied in matters of deprivation of liberty.”
“There is no doubt as to the general effect of the rule which is known as the Act of State rule. It applies to the legislative or other governmental acts of a recognised foreign state or government within the limits of its own territory. The English courts will not adjudicate upon, or call into question, any such acts.”
“This is less a definition than a construction put together from what has been decided in various cases; it covers as much ground as they do, no less, no more. It carries with it the warning that the doctrine cannot be stated in terms of a principle but developed from case to case …”
“internment where necessary for imperative reasons of security constituted a positive obligation on the United Kingdom (once it accepted the invitation to contribute to the MNF): although the act of state rule might apply even in the absence of such an obligation, its justification is clearer in such a case. In my judgment it must follow that individual acts of internment were, in Lord Morris's phrase, done ‘in performance of’ the original decision to contribute forces, or, in Lord Wilberforce's, had a sufficiently ‘close’ link with that decision. In Lord Pearce's language, acts of internment were not a ‘subsidiary matter’, any more than straightforward military operations were: they were part of the obligation which the United Kingdom government had accepted. Put as simply as possible, it had been asked by the Iraqi government (and the United Nations) to intern people on its territory in certain specified circumstances.”
“If the true basis of the rule … is that acts done by the Crown abroad in the conduct of foreign relations are of their nature not cognisable in the English court, I can see no reason of principle why the position should be any different where the person injured happens to be a British citizen: the nature of the act is the same.”
“Internment for this purpose would clearly qualify as an act of state. My conclusion that act of state as a defence here does not go wider than this. It applies, in my judgment, because of the overriding force of UNSCR 1546. If courts hold states liable in damages when they comply with resolutions of the UN designed to secure international peace and security, the likelihood is that states will be less ready to assist the UN to achieve its role in this regard, and this would be detrimental to the long-term interests of the states.”
“It was no part of the peace keeping function of the troops to take property without paying for it. In the present case, internment was part of the role which the British contingent of the MNF were specifically required to carry out. The acceptance and carrying out of those obligations was an exercise of sovereign power. It is inevitable that a detainee would suffer the loss of his liberty while he was detained.”
“Lying at the heart of this question is the relationship between the Crown (more accurately now, executive government) and the courts. To what extent and in what circumstances should the courts refuse to hold the executive to account in its dealings with foreign states or its handling of foreign relations?”
“An act of state is something not cognisable by the court: if a claim is made in respect of it, the court will have to ascertain the facts but if it then appears that the act complained of was an act of state the court must refuse to adjudicate upon the claim. In such a case the court does not come to any decision as to the legality or illegality, or the rightness or wrongness, of the act complained of: the decision is that because it was an act of state the court has no jurisdiction to entertain a claim in respect of it. This is a very unusual situation and strong evidence is required to prove that it exists in a particular case.”
“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’ … for instance, the making of peace and war, the annexation or abandonment of territory, the recognition of a new state or a 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 …”
“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 a person or property of an alien …”
“X, an officer of the Crown, duly authorised, destroys property of A, a Spanish subject at a place outside the United Kingdom and Colonies. Spain and the United Kingdom are at peace, and X’s act is tortious by the law of the place where it is committed. X’s act is an act of state, and the court will not entertain an action by A against X.”
“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.”
“Our state cannot speak with two voices on such a matter, the judiciary saying one thing, the executive another.”
“It is true that the court must determine, on such facts as are available, whether the act was done in purported exercise of a legal right: if it was it cannot be regarded as an act of state. But if it was not done in purported exercise of any legal right and was done by an officer of the Crown apparently in the course of duty, then it appears to me that it must be for the Crown to say whether it claims that the act was an act of state. ”
“Of the propriety or justice of that act, neither the Court below nor the Judicial Committee has the means of forming, or the right of expressing if they had formed, any opinion. It may have been just or unjust, politic or impolitic, beneficial or injurious, taken as a whole, to those whose interests are affected. These are considerations into which their Lordships cannot enter. It is sufficient to say that, even if a wrong has been done, it is a wrong for which no Municipal Court of justice can afford a remedy.”
“While some cases ostensibly support the proposition that prisoners of war lack capacity to apply [for the writ of habeas corpus], a close reading indicates that the courts do not really decide the cases on that basis. The Crown has the power, quite apart from statute, to detain prisoners of war (including non-combatant alien enemies) as part of the prerogative under which it wages war. This means that if an applicant is detained in a prisoner-of-war camp, and is properly considered a prisoner of war, he or she will have no right to be liberated. This is the rule the courts have applied, not that a prisoner of war lacks capacity to apply for the writ.”
“It is unlawful for a public authority to act in a way which is incompatible with a Convention right.”
“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.”
“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 …”
“The power to capture insurgents extends to a power to detain them temporarily. In the absence of any express authorisation in the UN Security Council resolutions, however, the Secretary of State takes the view that the UK has no power of indefinite internment. That is why the issue of transfer to the Afghan authorities is of such importance.”
“If it were not possible to transfer detainees to Afghan custody, the consequences would be very serious. Detainees would have to be released after a short time, leaving them free to renew their attacks and cause further death and injury. The opportunity to prosecute them and to gain intelligence would be lost.”