1. The Serdar Mohammed Litigation
Lawrence Hill-Cawthorne
11 November 2015

2. Key issues Was there a legal basis to detain SM in Afghanistan?
Under Afghan law?
Under relevant UN Security Council resolutions?
Under international humanitarian law?
Is Article 5 ECHR displaced or modified in non-international armed conflict?

3. Afghan law First Instance Court of Appeal
No power to detain except on penal grounds up to 72 hrs
No power to detain beyond that provided to Afghan authorities, e.g. only on criminal grounds

4. UN Security Council Resolutions
First Instance
Court of Appeal
Said SCR authorised detention only for 96 hrs
Agreed SCR authorised detention of those posing threat to ISAF for 96 hrs
‘I accept that the UNSCRs relating to Afghanistan were plainly intended to authorise the use of lethal force at least for the purposes of self-defence. I also accept that in these circumstances it must be the case that ISAF personnel were authorised to take the lesser step of accepting the surrender of individuals who were believed to pose an imminent threat to them or to the civilian population. I see no necessary implication, however, that this authorisation was intended to give ISAF a power to continue to hold individuals in detention outside the Afghan criminal justice system after they had been arrested and therefore ceased to be an imminent threat.’
Disagreed that that authority ceased after 96 hrs
But that authority was vested in ISAF and up to them how it should be limited
Presumption of compliance of SCR with IHRL

5. International Humanitarian Law
First Instance
Court of Appeal
No express or implied power in treaty law
Contained within the power to kill? – only enables detention of someone that may be targeted on basis of posing an imminent threat
Contained within the power to kill?- disagrees with judge that no longer pose imminent threat once captured, but still says this cannot constitute a legal basis
No evidence that custom provides a legal basis
Agrees that there is no evidence that custom provides a legal basis

6. Analysis: IHL as the legal basis to detain
Treaty law and regulation as authorisation?
Customary international law and the common practice of detention in non-international armed conflict?
A power to detain contained within the power to kill?