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The Court of Appeal voiced significant reservations about the correctness of the decision in Al-Skeini v United Kingdom (55721/07) (2011) 53 E.H.R.R. 18, which extended the European Convention on Human Rights (ECHR) to the battlefield. Nevertheless, this case authority was binding and therefore followed. The Secretary of State’s appeal failed. Serdar Mohammed’s (Mohammed) cross-appeal regarding the defence of act of state succeeded and he was entitled to compensation.

This case considers important points about (i) the territorial application of the ECHR and its relationship to international humanitarian law; (ii) the consequences of failing to provide procedural safeguards required by Article 5 (right to liberty and security of person) of the ECHR; and (iii) the principles of the defence of act of state and when the defence is available.

Key points arising out of the appeal are:

• The Secretary of State had failed to make appropriate and lawful arrangements for the deployment of UK armed forces to Afghanistan and for the capture of those who posed a threat. There had been no means of enabling detention exceeding 96 hours. The actions of the UK armed forces in detaining Mohammed for longer than that were not attributable to International Security Assistance Force (ISAF).
• There had been no authority for extended detention under any of the three bases advanced by the Secretary of State. He had not put in place procedural safeguards agreed under international law to be appropriate for a non-international armed conflict and he had therefore engaged in the arbitrary detention of Mohammed, which was contrary to Article 5 of the ECHR.
• The detention was also unlawful under Afghan law, and the defence of act of state would not apply to any private law claim in tort made under Afghan law because the claim was justiciable and no rule of public policy prevented domestic Courts from giving effect to Afghan law as the applicable law.

In addition to the main appeal, there were conjoined Afghan detention cases raising similar issues, together with an appeal by a Pakistani citizen (R) against a decision ([2014] EWHC 3846 (QB)) that his claim concerning his 10 year detention in Iraq was barred because of the defence of act of state. The issues raised in the other Afghan cases were justiciable, but as they had brought public law proceedings rather than private law claims in tort, the second limb of the act of state principle had no application to them. The act of state principles identified in Mohammed’s claim applied equally to R’s claim. However, because the facts of his case had not been established, the instant Court was unable to determine whether the defence was available to the Secretary of State.

[(1)Serdar Mohammed & Ors (Respondents) v Secretary of State for Defence (Appellant) (2) Yunus Rahmatullah & the Iraqi Civilian (Appellants) v Ministry of Defence and Foreign Commonwealth Office (Respondent) [2015] EWCA Civ 843]

Read the full judgment here