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:
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]