The mandate of ISAF was to assist
Posted: Mon Feb 17, 2025 8:25 am
In these circumstances, it is in my view quite clear that the detention of SM is attributable to the United Kingdom. It is unnecessary for me to consider the possibility of joint responsibility, as I think it equally clear that the acts involved in the detention of SM are not attributable to ISAF or the UN.
Accepting that he was bound by the House of Lords’ Al-Jedda decision that UN Security Council resolutions can prevail over the ECHR by virtue of Article 103 of the Charter (paras. 209-211), and that the UNSC resolutions relevant to Afghanistan authorized ISAF to ‘take all necessary measures,’ which include lethal force in self-defence, the judge considered that these measures must also include capturing adversaries on the battlefield (para. 218). However:
219. I accept this argument so far as it goes. In particular, 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.
220. As mentioned earlier, the Afghan government in the maintenance of security. In addition, the UNSCRs expressly affirmed the sovereignty, independence and territorial integrity of Afghanistan and recognised that the responsibility for providing security and law and order throughout Afghanistan resided with the overseas chinese in canada dataAfghan authorities. In these circumstances, and in circumstances where (as discussed in part IV of this judgment) ISAF had no power under Afghan law to detain individuals other than to hand them over immediately to the police or a prosecutor, I can see no reason to interpret the authorisation to “take all necessary measures” to fulfil the ISAF mandate as permitting detention for any longer than was necessary to deliver them to the Afghan authorities.
Moreover:
221. Nor can 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 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.
Accepting that he was bound by the House of Lords’ Al-Jedda decision that UN Security Council resolutions can prevail over the ECHR by virtue of Article 103 of the Charter (paras. 209-211), and that the UNSC resolutions relevant to Afghanistan authorized ISAF to ‘take all necessary measures,’ which include lethal force in self-defence, the judge considered that these measures must also include capturing adversaries on the battlefield (para. 218). However:
219. I accept this argument so far as it goes. In particular, 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.
220. As mentioned earlier, the Afghan government in the maintenance of security. In addition, the UNSCRs expressly affirmed the sovereignty, independence and territorial integrity of Afghanistan and recognised that the responsibility for providing security and law and order throughout Afghanistan resided with the overseas chinese in canada dataAfghan authorities. In these circumstances, and in circumstances where (as discussed in part IV of this judgment) ISAF had no power under Afghan law to detain individuals other than to hand them over immediately to the police or a prosecutor, I can see no reason to interpret the authorisation to “take all necessary measures” to fulfil the ISAF mandate as permitting detention for any longer than was necessary to deliver them to the Afghan authorities.
Moreover:
221. Nor can 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 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.