Taliban can’t be held more than 96 hours decides judge
Human rights ruling could hinder our troops in all wars, warn top brass
BRITISH soldiers may not hold their enemies in Afghanistan as prisoners for longer than 96 hours because to do so would breach their human rights, a judge ruled yesterday.
It means that Taliban chieftains captured by British troops must be freed to fight again within four days.
The judgment – which followed claims brought by four Taliban commanders now held in Afghan jails – alarmed military chiefs and politicians. They believe soldiers should not be asked to fight and die on the battlefield according to the letter of human rights law.
The 117-page High Court ruling by Mr Justice Leggatt means that the European Convention on Human Rights, and the UK’s Human Rights Act, which made the convention part of British law, apply wherever British troops are fighting.
The judge said that by detaining Taliban leader Serdar Mohammed for 106 days beyond the legal 96hour limit, Britain had breached his right to liberty.
Taxpayers will now have to pay compensation running into tens of thousands to Mohammed and three other captives involved in the case.
The ruling also opens the way for many other Afghan detainees to sue for compensation, with British law firms likely to be queuing up to help them.
There will also be high legal costs for the taxpayer. Two legal firms represented the Taliban prisoners on no-win no-fee deals, and the case involved 11 barristers. The MoD is likely to face a six-figure bill.
The case revolved around the arrest and detention of Serdar Mohammed in April 2010.
He said he was irrigating his family’s fields in Helmand province when British soldiers from a helicopter arrested him. Mohammed said he was then blindfolded, assaulted and bitten by a military dog.
But Ministry of Defence lawyers said that British soldiers trying to capture a Taliban commander landed under heavy fire, and then gave chase to Mohammed and a second insurgent, whom they killed. Mohammed was bitten by a dog sent in to dig him out of a field after he refused to surrender. Soldiers found a rocket propelled grenade launcher and two rounds of ammunition for it abandoned along the trail down which he had fled.
The prisoner was held by the Brit- ish and questioned for nearly a month. Because Afghan authorities had no room in their prisons for him, he was held by the British until finally handed over to Afghan authorities on July 25, 2010.
The judge said it was ‘clear law’ that the Human Rights Act binds the armed forces in Afghanistan. ‘The UK Government had no legal basis either under Afghan law or in international law for detaining [ Serdar Mohammed] after 96 hours,’ he added.
After the case, Defence Secretary Philip Hammond said the MoD would appeal against the ruling.
‘We cannot send our armed forces into battle with both hands tied behind their backs,’ he warned.
‘ Our troops must be able to
‘Vital to our ability to protect lives’
detain our enemies who aim to maim and kill UK service personnel and innocent civilians. It cannot be right for the European Convention on Human Rights to apply on the battlefield, restricting the ability of our troops to operate in combat.’
Chief of the General Staff General Sir Nicholas Houghton said: ‘Our freedom to conduct detention operations and to exploit detainees for intelligence is vital to our ability to protect the lives of innocent civilians and our own forces.’
A spokesman for Leigh Day, which represented Mohammed, said British troops will have to be instructed in human rights law.
The three other Afghans were represented by Public Interest Law- yers, run by Left-wing solicitor Phil Shiner. In another case last month, the MoD said that Iraqi witnesses – represented by the firm – ‘dishonestly’ accused British soldiers of war crimes in Iraq because they were motivated by compensation.
Yesterday Mr Shiner said: ‘This is a judgment of profound importance. It tells the MoD again that no matter how they try to avoid accountability for the UK’s actions abroad, international human rights law will apply and, thus, UK personnel must act accordingly.’
But Douglas Carswell, Tory MP for Clacton, said: ‘This is another illustration of what has gone wrong with our country.’
The four- day detention limit applies only to prisoners taken in Afghanistan. This is because the procedures of the UN-mandated International Security Assistance Force, the umbrella under which British troops serve in the country, set a detention period of 96 hours. After this a prisoner must be freed or handed to Afghan authorities.
British ministers authorised detention beyond this time in November 2009, when it became clear that British courts were ready to ban prisoner handovers to the Afghans because of the risk of torture.
Anywhere else in the world, detention periods would be likely to be set locally, but British forces would still have to comply with the human rights convention.
Article Five of the convention says detainees must be brought ‘promptly’ before a judge and given a trial within a ‘reasonable time’. A judge would decide what was ‘prompt’ or ‘reasonable’.
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