Tri-Service

MoD Wins Supreme Court Appeal Over Afghan Detention Policy

The Ministry of Defence has won a victory at the Supreme Court in the case of a suspected Taliban commander detained by British forces in Afghanistan in 2010.

The MoD says his arrest took place in the course of a planned operation from which Mr Mohammed was seen fleeing and discarding a rocket-propelled grenade launcher and ammunition.

He was detained in British custody for 110 days before being handed over to Afghan authorities.

Two years ago the High Court said the MoD was in breach of the European Human Rights Act because Serdar Mohammed was held for longer than 96 hours.

Today's ruling overturns that judgment, with the Supreme Court upholding the MoD's appeal having found that extended custody was justifiable for "imperative reasons of security", with the European Convention on Human Rights 'primarily designed for peacetime and not easily adapted to wartime'.

An MoD spokesperson said:

"We have always been clear that our troops were right to detain Serdar Mohammed, a Taliban commander involved in the production of explosive devices on an industrial scale, so we welcome today's judgment.

"It is vital that our troops have the ability to detain enemy forces when they are engaged in conflict, and today's judgment is a significant step in clearing up the legal fog that has surrounded this issue.

"While it does not of itself dispose of all the claims against the MOD by Iraqi and Afghan nationals, it will help the courts bring them to a conclusion in a way which takes proper account of military realities."

But the court also found the MoD was in breach of the Human Rights Act for not providing Mr Mohammed with a means to contest his detention.

The case will now go back to the High Court for retrial and it's possible Mr Mohammed could claim damages.

Also being considered by the court was the case of Abdul-Hakim Belhaj and his wife Fatima Boudchar, who allege the UK participated in their abduction and rendition to Tripoli more than a decade ago.

The government's attempt to block their claim for damages was dismissed by the court and the Libyan dissident and his wife were granted leave to proceed with their claims against the former Foreign Secretary Jack Straw. Mr Straw said:

"This judgment is about some important points of law, related to how far it is possible to bring into a court process in the UK actions of sovereign states abroad. However, at no stage so far have the merits of the applicant's case been tested before any court. That can only happen when the trial of the action itself takes place.

"I repeat what I said in the House of Commons in December 2013, that as Foreign Secretary I acted at all times in a manner which was fully consistent with my legal duties, and with national and international law. I was never in any way complicit in the unlawful rendition or detention of anyone by other states."