This morning the UK Supreme Court delivered three important judgments dealing with various claims alleging wrongful acts by the UK when fighting international terrorism (UK Supreme Court page; Guardian news report). In Belhaj and Rahmatullah No. 1 the Court unanimously dismissed the Government’s appeal, and found that the claim against the UK for its alleged complicity in torture and mistreatment of the claimants was not barred by rules of state immunity and the foreign act of state doctrine (press release; judgment). In Rahmatullah No. 1 and Mohammed the Court unanimously allowed the Government’s appeals, holding that, insofar as the respondents’ tort claims are based on acts of an inherently governmental nature in the conduct of foreign military operations by the Crown, these were Crown acts of state for which the Government cannot be liable in tort (press release; judgment). Finally, and perhaps of greatest interest to most of our readers, in Al-Waheed and Serdar Mohammed the Court, by 7 votes to 2 in a set of very complex judgments, held that British forces had power to take
and detain prisoners for periods exceeding 96 hours if this was necessary for imperative reasons of security, but that its procedures for doing so did not comply with ECHR article 5(4) because they did not afford prisoners an effective right to challenge their detention (press release; judgment). We will be covering these judgments in more detail soon.
I have only had the time to read Serdar Mohammed, which I am yet fully to digest, but here are some initial thoughts (we have of course extensively covered this case on the blog before). The two key judgments are those of Lord Sumption for the majority and Lord Reed for the minority; I must say that by and large I incline towards the latter. I am also troubled by some of the ipse dixit, rather casual references in the judgments of the majority justices to the lex specialis principle; the supposedly restrictive original intentions of the drafters of the ECHR with regard to its application extraterritorially and in armed conflict, which are in reality employment database completely unknowable; similarly casual constructions of coherent narratives of a very messy field that confirm one’s own predispositions (e.g. that in Al-Skeini the Strasbourg Court unprecedentedly expanded the reach of the Convention to extraterritorial armed conflicts, when one could just as easily say that in Bankovic the Court unprecedentedly restricted the Convention’s reach); or the supposed unavailability of extraterritorial derogations, on which see more here. That said, the judgments are thoughtful and rigorous even when one might disagree with them, which brings me to the Court’s main findings.
First, like the judges of the High Court and the Court of Appeal before them, the justices of the Supreme Court generally thought that, unlike in international armed conflicts, in non-international armed conflicts IHL does NOT positively authorize detention/deprivation of liberty. Second, unlike the lower courts, the justices of the Supreme Court were not prepared to make an explicit holding to that effect, probably because they saw the matter as evolving and that a customary rule authorizing detention could eventually emerge, and because they could resolve the case on other grounds. Third, those other grounds were detention authority provided by the resolutions of the Security Council as applied to a NIAC. Lord Sumption essentially chose to expand by analogy the European Court’s Hassan judgment, which was expressly confined to IACs and in which the Court held that IHL-authorized detention was not incompatible with Article 5(1) ECHR, to detention in NIACs as well, but ONLY when positive authority for detention existed under some other part of international law, like a UNSC resolution. Here the chief difficulty that the Supreme Court majority has is not only in the express terms of Hassan, but in the approach taken to the interpretation of UNSC resolutions by the ECtHR in Al-Jedda and subsequent cases dealing with Article 103 of the Charter.