Whether human rights law can be extended to the battlefield will be discussed in a supreme court case over the legality of detaining a Taliban suspect in Afghanistan , following the case of Serdar Mohammed, who was held for 110 days by UK forces before being handed over to Afghan authorities.
Nine justices of the supreme court will consider the case of Serdar Mohammed, who was captured in April 2010 by UK soldiers, (who were a part of the International Security Assistance Force (ISAF) ) and did not hand him over to the Afghan security services for trial until July 2010, despite ISAF regulations requiring any transfer to take place within 96 hours.
It was alleged that the Afghan security services tortured Serdar Mohammed and forced him to thumbprint a document that said he had confessed to being a Taliban fighter. He was freed in 2014 and denies being an insurgent or preparing bombs.
The case highlighted the effect of UK forces overseas being subject to the European convention on human rights rather than the Geneva conventions on warfare, a legal position about which the judges in the Court of Appeal decision expressed misgivings.
Last year, the court of appeal ruled that Mohammed had been held illegally by British forces and denied access to a lawyer. Giving their judgment, the three senior judges (the lord chief justice, Lord Thomas, Lord Lloyd Jones and Lord Beaston) stated that they had significant reservations in respect of the correctness of the decision extending the ECHR to the battlefield as established by the decision of the Strasbourg court in Al-Skeini. The court were however bound by the decision of the supreme court in Smith v MoD, which applies the decision in Al-Skeini. Mohammed’s claim succeeded because the secretary of state was unable to show a lawful basis for the detention.
Since the Court of Appeal judgment, relations between law firms bringing claims on behalf of detained Afghan and Iraqi suspects and the Ministry of Defence have deteriorated into open recrimination. Two of the law firms, Leigh Day and Public Interest Lawyers, have been referred by the government to the Solicitors Regulation Authority over alleged malpractice in handling claims. They deny any wrongdoing.