Our troops may be forced to free prisoners of war ... because of human rights!
BRITISH forces maybe prevented from detaining prisoners of war for more than a few days in case it breaches their human rights, the Supreme Court heard yesterday.
Troops could face a ‘ lethal Catch 22’ in which they can neither hold enemy fighters or hand them over to authorities in case they are tortured, judges were told.
Instead, commanders would be forced to set militants free to potentially ‘kill and maim’ UK troops. The comments came at the start of a landmark legal case in which a convicted senior Taliban chief captured by British soldiers is suing the Ministry of Defence. Serdar Mohammed – who was helping make roadside bombs to be used against UK troops – maintains his human rights were breached because he was detained longer than 96 hours.
If he wins the case, hundreds of other insurgents held by British forces in Iraq and Afghanistan for more than four days could all win substantial payouts. Mohammed’s case, taken on by controversial law firm Leigh Day, is the first to challenge the legal basis for UK detention and could have a major impact on every future war Britain fights in.
Ministry of Defence lawyer James Eadie QC said: ‘It is a lethal Catch 22. If you cannot detain and you cannot transfer – what are you going to do? The only alternative is to release. If you can’t detain and can’t transfer then you might not be able to capture in the first place.’
He added that a last resort would be ‘derogation’ from the European Convention on Human Rights when it comes to soldiers on the battle- field. British troops risked their lives in a fierce gun battle in Afghanistan in April 2010 to capture Mohammed alive. The enemy combatant, who had traces of chemicals linked to bomb-making on his body, was treated as a prisoner of war under the Geneva Convention. Under these rules, captives can be detained as long as it is justified as an ‘imperative’ for security.
But his lawyers argue that the European Convention on Human Rights, of which Britain is a signatory, should take precedence. Under Article 5, the right to liberty. the law, detainees should not be held for longer than 96 hours.
The Supreme Court heard that Mohammed was not transferred to the Afghan authorities until 106 days after his capture, when British personnel felt he would be treated fairly and put on trial.
He was later prosecuted in the Afghan courts and sentenced to 16 years in prison, which was reduced in an appeal to ten years.
For unknown reasons, he is now walking free after being reunited with his family in his home in the Kajaki district of Helmand.
Judges yesterday heard lawyers argue that he should not have been transferred to Afghan authorities because that would have been a breach of Article 3 of the Act, which refers to torture, inhuman or degrading treatment. To comply with the act, British soldiers would have been forced to release him – even though he was deemed a high security threat.
Mr Eadie said: ‘What are we meant to do with him after 96 hours? He was just as much a Taliban commander in the 97th hour as he was in the 96th hour.’ Detaining people was a ‘lesser alternative to using lethal force against them’, the court heard. There was also a ‘humanitarian’ reason for detaining Mohammed to prevent him being mistreated by local forces in detention camps.
As well as European law, Nato guidelines also say that suspects should only be detained for a maximum of 96 hours although the Government says there were many ‘ exceptional’ ci r cumstances. Defence Minister Penny Mordaunt earlier described the case as ‘ludicrous’. It is being held alongside the case of an Iraqi named Al Waheed, who was detained for six weeks in 2007. Mr Eadie said there was a ‘similar dilemma’ in Iraq.
The Mail has revealed how lawyers are pursuing thousands of claims against the MoD from both Iraq and Afghanistan, including criminal allegations of murder and civil claims to win compensation.
Using the Human Rights Act and legal aid, ambulance-chasing lawyers have been able to secure millions of pounds for their clients and soldiers have been relentlessly hounded as a result. The Supreme Court hearing continues.