Mohammed (Serdar) v. Ministry of Defence

Abstract

Human rights — Liberty of the person — European Convention on Human Rights, 1950, Article 5 — Territorial scope of the Convention — Detention of suspected insurgents by British forces during conflict in Afghanistan — Whether Convention applicable — Whether detention justified by Security Council resolutions — Whether detention justified by international humanitarian law

International organizations — United Nations — Security Council — Multinational force authorized by the Security Council — Afghanistan — International Security Assistance Force (“ISAF”) — Scope of mandate — Whether authorized to detain suspects and for how long — Whether actions of British forces in ISAF attributable to the United Kingdom or the United Nations

Relationship of international law and municipal law — Act of State — Different doctrines of act of State — Act of foreign State — Crown act of State — Whether Crown act of State precluding justiciability of claim — Whether Crown act of State a defence to action in tort for acts performed pursuant to lawful government policy — Detention of suspected insurgents by British forces during conflict in Afghanistan — Action for damages in tort — Proper law the law of Afghanistan — Whether Crown act of State a defence — Whether Crown act of State applicable to claim under the Human Rights Act 1998

War and armed conflict — Non-international armed conflicts — International humanitarian law — Common Article 3 to the Geneva Conventions, 1949 — Additional Protocol II, 1977 — Whether authorizing detention of suspected combatants — Relationship between international humanitarian law and international human rights law — The law of England