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. (more…)