I see any reason to interpret that authorisation as permitting detention by ISAF which violated international human rights law. In ascertaining the scope of the relevant authority, it seems to me that I must take into account the principles endorsed by the European Court in Al-Jedda v United Kingdom (2011) 53 EHRR 23. Section 2(1) of the Human Rights Act requires me to do so in circumstances where the opinion of the European Court is relevant to the question that I have to determine concerning the scope of the claimant’s Convention rights. As mentioned, the European Court considered there to be a presumption that, unless it uses clear and unambiguous language to the contrary, the Security Council does not intend states to take measures which could conflict with their obligations under international human rights law. In the Al-Jedda case the European Court did not regard even the language used in UNSCR 1546 and the line database letter from Mr Powell annexed to it which expressly referred to internment as sufficiently clear and unambiguous to override this presumption. In the resolution applicable in the present case there is no express reference at all to internment or detention. Although I consider that a power to detain is implied, there is nothing in the language of UNSCR 1890 which demonstrates – let alone in clear and unambiguous terms – an intention to require or authorise detention contrary to international human rights law.
up to 96 hours, per the ISAF detention policy, for the purpose of transferring the detainees to Afghan custody, was included within the mandate, but that longer detention for the purpose of intelligence-gathering, under the UK’s own detention policy, was not (paras. 224-227). No conflict thus arose between UNSC resolutions and Article 5 ECHR, and Article 103 of the Charter was inapplicable.
(5) SM’s detention was not authorized by IHL either, since IHL in NIACs contains no detention authority, and cannot prevail over Article 5 ECHR as lex specialis (para. 228 ff). The judge noted that:
239. Neither CA3 nor Article 5 of AP2 contains any express statement that it is lawful to deprive persons of their liberty in an armed conflict to which these provisions apply. All that they do is to set out certain minimum standards of treatment which must be afforded to persons who are detained during such an armed conflict. The MOD argues, however, that a power to detain is implicit in CA3 and AP2.
240. This argument has the support of some academic writers and of the International Committee of the Red Cross (“ICRC”). Thus, Jelena Pejic, the legal advisor to the ICRC, has written: “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 …”