8 May 2014
Responsibility of the UK for detentions in Afghanistan: questions of attribution of conduct
In a decision of 2 May 2014, the British High Court of Justice held that the United Kingdom (UK) was responsible for the continued detention of an individual in Afghanistan, in violation of human rights law. The decision has already been commented on, notably here, here and here, focusing on the affirmation by the Court that the UK’s international human rights obligations applied to the non-international armed conflict in Afghanistan. This post will briefly address another important aspect of the decision, that of attribution of conduct.
The case was brought by Serdar Mohammed, an Afghan national who had been captured by British forces part of the NATO-led International Security Assistance Force (ISAF) in April 2010 on the suspicion of being a member of the Taliban. He remained detained without charges until July 2010, when he was transferred to Afghan authorities. He claimed compensation from the UK for a breach of his right to liberty under Article 5 ECHR.
Apart from finding that the detention was in breach of applicable human rights obligations, the Court engaged in a relatively extensive discussion of whether the disputed conduct was to be attributed to the UK (paras 158–187, pp 47–55), thereby adding a new stone to the debate on allocation of responsibility in international military operations.
The Court answered the question of attribution in two steps: first, it determined to whom the conduct of ISAF should be attributed as a matter of principle, and then asked whether the detention itself should be considered an act of ISAF or whether it actually was an act of the UK. A number of scholars have considered such a two steps method appropriate to implement the test of effective control: they have suggested to first identify which entity is presumably responsible in view of command arrangements before enquiring whether a specific conduct was actually controlled by the troop-contributing State.[1]
The Court wrongly concluded that the conduct of ISAF was in general attributable to the UN because it possessed ‘ultimate authority and control’, but correctly held that the specific detention of Serdar Mohammed was to be attributed to the UK. These two parts of the reasoning of the Court on attribution are explained below.
Grounding once again its argument in the Behrami and Saramati cases, the UK had contended that since British forces in Afghanistan were operating as part of the ISAF – a NATO force that was authorised by the UN – the conduct should be attributed to the UN. If courts in Al-Jedda could distinguish the situation in Iraq from the one in Kosovo on the facts, the Court was here bound to recognise the close similarity of the case at hand with the detention of Mr Saramati by the NATO-led KFOR:
177. […] It seems to me that the chain of delegation of command for ISAF is essentially similar to the chain of delegation and command for KFOR, as described in the judgment of the European Court in the Behrami and Saramati cases.
The British Court did not dismiss Behrami and therefore held that, prima facie, the conduct of ISAF was attributable to the UN:
178. In these circumstances, although I do not find the question easy, I consider that the UN Security Council has “effective control” (and “ultimate authority and control”) over ISAF in the sense required to enable conduct of ISAF to be attributed to the UN. Thus, if the detention of [Serdar Mohammed] had been authorised by [ISAF] […], I would expect the European Court to hold that the detention was not attributable to the respondent state, applying the same analysis as it did in the Behrami and Saramati cases.
As often denounced with regard to the Behrami decision, holding the UN responsible for the conduct of forces over which it has no control makes little sense and is not in line with the established test of effective control. Under this test, the conduct of ISAF should rather have been prima facie attributed to NATO which was vested with operational command over the force. The UN only authorised the deployment of ISAF and did not have operational control over its activities in the field. The conduct of ISAF should therefore not have been considered as a conduct of the UN.
While the argument on attribution of ISAF conduct to the UN is weak, the Court nonetheless reached a reasonable conclusion in the second step of its reasoning. It analysed the distribution of authority between NATO, ISAF and the UK, and demonstrated that the detention of Serdar Mohammed was exclusively under the authority of the UK.
Indeed, the Court showed that, as far as detention operations were concerned, the UK was acting independently from ISAF, according to its own policies and through its own channels. Under ISAF’s rules, individuals could be detained for up to 96 hours after which they had to be transferred to Afghan authorities. Considering that ‘detaining individuals beyond 96 hours can yield vital intelligence’, the UK decided to adopt a different policy allowing longer detentions by its troops. As a result, detention operations by British troops in Afghanistan have been conducted under the direct authority of the British Ministry of Defence:
180. […] the chain of command for authorising detention set out in the MOD Standard Operating Instruction J3-9 shows that the detention authority is the Commander of Joint Force Support (Afghanistan) (“Comd JFS p(A)”), who reports directly to the UK Permanent Joint Headquarters (“PJHQ”), which in turn reports to the MOD. By contrast, the chart shows that the relation between the UK detention authority and the ISAF chain of command is one of liaison and coordination only.
Considering that the disputed ‘detention was authorised and reviewed exclusively by UK officials and Ministers’, the Court held that the conduct was attributed to the UK which actually exercised authority over this part of the operation, and not to the UN and NATO.
In effect, the Court demonstrated that the specific disputed conduct was under the effective control of the UK which concretely exercised authority over its troops in detentions matter. The conclusion of the case is therefore in line with the principle enshrined in Article 7 ARIO.
Like in Nuhanovic, attribution of conduct of international forces to the contributing State is justified by a clear link between specific government’s decisions over operational matters and the disputed conduct. In Nuhanovic, the Dutch government was in close contact with the contingent commander and had directly instructed to evacuate the compound. In the case at hand, the direct control of the UK government over detentions justified to attribute the conduct to the State.
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1. See eg: A Sari, ‘UN Peacekeeping Operations and Article 7 ARIO: The Missing Link’ (2012) 9(1) International Organizations Law Review 7; M Zwanenburg, Accountability of Peace Support Operations (Martinus Nijhoff, Leiden, Boston, 2005) at 100.