United Kingdom of Great Britain and Northern Ireland
Practice Relating to Rule 99. Deprivation of Liberty
Section E. Decision on the lawfulness of deprivation of liberty
The UK Military Manual (1958) provides:
A person who has been interned or placed in an assigned residence is entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board of the belligerent. If the internment or placing in assigned residence is maintained, the court or administrative board must periodically, and at least twice yearly, reconsider the case with a view to the favourable amendment of the initial decision if circumstances permit.
The manual further specifies that, in occupied territories,
the decisions regarding such assigned residence or internment can only be made in accordance with regular procedure … If the decision to intern, or to assign a special place of residence to, a protected person is upheld on appeal, such decision must be subject to periodical review – if possible every six months – by a competent body set up by the Occupant.
The UK LOAC Manual (2004) states:
By United Kingdom law, prisoners of war held in the custody of the United Kingdom are subject to the ordinary criminal and civil law, subject to certain modifications that follow from prisoner of war status. An example of a modification of the law is the rule that a prisoner of war, unless released on parole in the United Kingdom, is debarred from obtaining a writ of habeas corpus
to test the lawfulness of his detention.
In 2002, in the Abassi case, the England and Wales Court of Appeal stated:
1. Feroz Ali Abbasi, the first claimant, is a British national. He was captured by United States forces in Afghanistan. In January 2002 he was transported to Guantanamo Bay in Cuba, a naval base on territory held by the United States on long lease pursuant to a treaty with Cuba. By the time of the hearing before us he had been held captive for eight months without access to a court or any other form of tribunal or even to a lawyer. These proceedings, brought on his behalf by his mother, the second claimant, are founded on the contention that one of his fundamental human rights, the right not to be arbitrarily detained, is being infringed. They seek, by judicial review, to compel the Foreign Office to make representations on his behalf to the United States Government or to take other appropriate action or at least to give an explanation as to why this has not been done.
12. On 19 February 2002 three prisoners detained at Guantanamo Bay, two British and one Australian, commenced a civil action in the District Court of Columbia – Rasul et al. v George Walker Bush et al. in which they petitioned for a writ of habeas corpus. The government moved to dismiss the action for want of jurisdiction. A similar motion was brought to dismiss an action brought by relatives of ten Korean citizens, who were also detained at Guantanamo Bay – Odah et al. v United States of America et al. The petitioners sought an order that the detainees be informed of the charges, if any, against them, be permitted to consult with counsel and have access to a court or other impartial tribunal. The Court treated this as an application for habeas corpus. After hearing argument the Court ruled that the military base at Guantanamo Bay was outside the sovereign territory of the United States and that, in consequence of this fact and the fact that the claimants were aliens, the Court had no jurisdiction to entertain their claims. The position would have been different had they been American subjects.
15. We are informed that the decision in Rasul is subject to appeal. We are further informed that regardless of the outcome of the appeal, a petition for certiorari is almost certain to be filed with the Supreme Court. In these circumstances we cannot proceed on the basis that the last word has been spoken by the United States courts on their jurisdiction to entertain a claim for habeas corpus on behalf of detainees at Guantanamo. On the face of it we find surprising the proposition that the writ of the United States courts does not run in respect of individuals held by the government on territory that the United States holds as lessee under a long term treaty.
Our view of Mr Abbasi’s predicament
58. Mr Blake [appearing as counsel for the claimants] has founded his case upon Mr Abbasi’s predicament as it currently appears. If the decision of the District Court of Columbia accurately represents the law of the United States, then the United States executive is detaining Mr Abbasi on territory over which it has total control in circumstances where Mr Abbasi can make no challenge to his detention before any court or tribunal. How long this state of affairs continues is within the sole control of the United States executive. Mr Blake contends that this constitutes arbitrary detention contrary to the fundamental norms of international law. It is not the fact that Mr Abbasi is detained on which Mr Blake relies – it is the fact that Mr Abbasi has no means of challenging the legality of his detention. It is this predicament which, so Mr Blake contends, gives rise to a duty on the part of the Foreign Secretary to come to Mr Abbasi’s assistance. That assistance is claimed as a matter of last resort. We do not consider that we can deal satisfactorily with this appeal without addressing those submissions and we consider, in the light of the jurisprudence discussed above, that it is open to us to do so.
59. The United Kingdom and the United States share a great legal tradition, founded in the English common law. One of the cornerstones of that tradition is the ancient writ of habeas corpus, recognised at least by the time of Edward I, and developed by the 17th Century into “the most efficient protection yet developed for the liberty of the subject” (per Lord Evershed MR, Ex p Mwenya  1 QB 241, 292, citing Holdsworth’s History of English Law, vol 9 pp.108-125). The court’s jurisdiction was recognised from early times as extending to any part of the Crown’s dominions:
“for the King is at all times entitled to have an account why the liberty of any of his subjects is restrained wherever that restraint is inflicted”
(Blackstone, Commentaries (1768) vol 3 p.131, cited by Lord Evershed MR, ibid, p.292; see also the recent review of the authorities by Laws LJ, R (Bancoult) v Foreign Secretary  2 WLR 1219, 1236).
60. The underlying principle, fundamental in English law, is that every imprisonment is prima facie unlawful, and that:
“… no member of the executive can interfere with the liberty… of a British subject except on the condition that he can support the legality of his action before a court of justice” (R v Home Secretary ex p Khawaja  1 AC 74, 110, per Lord Scarman; citing the classic dissenting judgment of Lord Atkin in Liversidge v Anderson  AC 206, 245 and Eshugbayi Eleko v Government of Nigeria  AC 662, 670).
This principle applies to every person, British citizen or not, who finds himself within the jurisdiction of the court: “He who is subject to English law is entitled to its protection.” (per Lord Scarman, ibid p.111). It applies in war as in peace; in Lord Atkin’s words (written in one of the darkest periods of the last war):
“In this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace.” (Liversidge v Anderson  AC 206, 245 at p.244)
61. As one would expect, endorsement of this common tradition is no less strong in the United States. In Fay v Noia (1963) 372 US 391, 400, Justice Brennan referred to:
“the ‘extraordinary prestige’ of the Great Writ, habeas corpus ad subjiciendum, in Anglo-American jurisprudence… It is ‘a writ antecedent to statute, and throwing its root deep into the genius of our common law… It is perhaps the most important writ known to the constitutional law of England, affording as it does a swift remedy in all cases of illegal restraint or confinement…’” (adopting the words of Lord Birkenhead LC, in Secretary of State v O’Brien  AC 603, 609).
62. Like Lord Atkin, he emphasised its importance in times of national emergency:
“It is no accident that habeas corpus has time and again played a central role in national crises, wherein the claims of order and liberty clash most acutely, not only in England in the 17th Century, but also in America from our very beginnings and today.” (ibid p. 401)
63. The recognition of this basic protection in both English and American law long pre-dates the adoption of the same principle as a fundamental part of international human rights law. Of the many source documents to which we have been referred, it is enough to cite the International Covenant of Civil and Political Rights, to which the United Kingdom and the United States are parties. Article 9, which affirms “the right to liberty and security of person” provides:
“4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that a court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.”
By Article 2, each state party undertakes to
“ensure to all individuals within its territory and subject to its jurisdiction” the rights recognised by the Covenant “without distinction of any kind, such as… national origin…”
64. For these reasons we do not find it possible to approach this claim for judicial review other than on the basis that, in apparent contravention of fundamental principles recognised by both jurisdictions and by international law, Mr Abbasi is at present arbitrarily detained in a “legal black-hole”.
65. That is not to say that his detention as an alleged “enemy combatant” may not be justified. This court has very recently had occasion to consider the legitimacy of legislation that empowers the Secretary of State to detain within this jurisdiction aliens who are suspected of being international terrorists – A, X and Y and Others v Secretary of State for the Home Department  EWCA Civ 1502. We would endorse the summary of the position under international law of Brooke LJ at paragraph 130:
“What emerges from the efforts of the international community to introduce orderly arrangements for controlling the power of detention of non-nationals is a distinct movement away from the doctrine of the inherent power of the state to control the treatment of non-nationals within its borders as it will towards a regime, founded on modern international human rights norms, which is infused by the principle that any measures that are restrictive of liberty, whether they relate to nationals or non-nationals, must be such as are prescribed by law and necessary in a democratic society. The state’s power to detain must be related to a recognised object and purpose, and there must be a reasonable relationship of proportionality between the end and the means. On the other hand, both customary international law and the international treaties by which this country is bound expressly reserve the power of a state in time of war or similar public emergency to detain aliens on grounds of national security when it would not necessarily detain its own nationals on those grounds.”
These comments can be applied with equal force to those suspected of having taken part in military operations involving terrorist organisations.
66. What appears to us to be objectionable is that Mr Abbasi should be subject to indefinite detention in territory over which the United States has exclusive control with no opportunity to challenge the legitimacy of his detention before any court or tribunal. It is important to record that the position may change when the appellate courts in the United States consider the matter. The question for us is what attitude should the courts in England take pending review by the appellate courts in the United States, to a detention of a British Citizen the legality of which rests (so the decisions of the United States Courts so far suggest) solely on the dictate of the United States Government, and, unlike that of United States’ citizens, is said to be immune from review in any court or independent forum.
67. It is clear that there can be no direct remedy in this court. The United States Government is not before the court, and no order of this court would be binding upon it. Conversely, the United Kingdom Government, which, through the Secretaries of State is the respondent to these proceedings, has no direct responsibility for the detention. Nor is it suggested that it has any enforceable right, or even standing, before any domestic or international tribunal to represent the rights of the applicant, or compel access to a court.
Is the conduct of the Secretary of State justiciable?
68 Mr Blake submitted that we should find that the Foreign Secretary owed Mr Abbasi a duty to respond positively to his, and his mother’s, request for diplomatic assistance …
69. It is clear that international law has not yet recognised that a State is under a duty to intervene by diplomatic or other means to protect a citizen who is suffering or threatened with injury in a foreign State … Mr Blake accepted this to be the case, but suggested that our municipal law should lead so that international law may follow. In these circumstances it does not seem to us that Mr Blake can derive any assistance from established principles of international law.
70. We turn to Mr Blake’s reliance on the European Convention on Human Rights and the Human Rights Act. Section 2 of the Act requires us to take into account any relevant decisions of the Strasbourg Court. There are two recent decisions which are particularly in point. In Al-Adsani v United Kingdom (2002) 34 EHRR 11 the applicant, who had joint British and Kuwaiti citizenship, wished to pursue proceedings in England against the Government of Kuwait in respect of torture, to which he alleged he had been subjected in Kuwait …
72. In Bankovic and Others v Belgium and Others (App. No. 52207/99) [11 BHRC 435] citizens of the Federal Republic of Yugoslavia (‘FRY’) sought to complain to the Strasbourg Court that deaths and injuries caused by air strikes carried out by members of Nato in the course of the conflict in Kosovo violated, among others, Article 2 of the Convention …
76. We derive the following principles from the decisions considered above:
i. The jurisdiction referred to in Article 1 of the Convention will normally be territorial jurisdiction.
ii. Where a State enjoys effective control of foreign territory, that territory will fall within its jurisdiction for the purposes of Article 1.
iii. Where, under principles of international law, a state enjoys extra-territorial jurisdiction over an individual and acts in the exercise of that jurisdiction, that individual will be deemed to be within the jurisdiction of the state for the purposes of Article 1, insofar as the action in question is concerned.
77. These principles come nowhere near rendering Mr Abbasi within the jurisdiction of the United Kingdom for the purposes of Article 1 on the simple ground that every state enjoys a degree of authority over its own nationals. Mr Blake has not identified any relevant control or authority exercised by the United Kingdom over Mr Abbasi in his present predicament. Nor has he identified any act of the United Kingdom government of which complaint can be made that it violates Mr Abbasi’s human rights.
78. Finally in this context we should refer to the decision of the Commission in Bertrand Russell Peace Foundation v United Kingdom (2 May 1978). The applicant, which was unquestionably within the jurisdiction of the United Kingdom, complained of the failure by the British postal authorities to make representations to the Soviet authorities in respect of the interception and destruction of mail sent by the applicant to Russia. The applicant alleged that this failure violated Articles 8 and 10 of the Convention. The Commission held that the application was not admissible.
While this is a decision of relative antiquity, we are not aware of any more recent Strasbourg jurisprudence that throws doubt on it. The principles that it enunciates are fatal to this limb of the applicants’ argument.
79. For these reasons we do not consider that the European Convention on Human Rights and the Human Rights Act afford any support to the contention that the Foreign Secretary owes Mr Abbasi a duty to exercise diplomacy on his behalf.
80. If Mr Blake is unable to demonstrate that, either through the incorporation of international law or under the Human Rights Act, Mr Abbasi enjoys a right to diplomatic assistance under our domestic law, do the authorities relied upon by Mr Greenwood [appearing as counsel for the defendants] close the door to any possibility of establishing such a right by way, as Mr Blake would contend, of a beneficial development of our public law? The authorities relied upon by Mr Greenwood … are powerful indeed. There are, however, three considerations which have led us to reject the proposition that there is no scope for judicial review of a refusal to render diplomatic assistance to a British subject who is suffering violation of a fundamental human right as the result of the conduct of the authorities of a foreign state.
81. The first consideration is the development of the law of judicial review in relation (i) to the doctrine of legitimate expectation and (ii) to the invasion of areas previously immune from review, such as the exercise of the prerogative.
87. The second consideration is that, to a degree, the Foreign and Commonwealth Office have promulgated a policy which, so it seems to us, is capable of giving rise to a legitimate expectation.
96. In Al Adsani v United Kingdom the Government contended, as recorded at paragraph 50, that:
“There were other, traditional means of redress for wrongs of this kind available to the applicant, namely diplomatic representations or an inter-State claim.”
97. In Rasul the United States District Court expressed the “serious concern” that the court’s decision would leave the prisoners without any rights, and recorded the government’s recognition that:
“these aliens fall within the protections of certain provisions of international law and that diplomatic channels remain an ongoing and viable means to address the claims raised by these aliens.” (p.2)
98. These statements reflect the fact that, to use the words of Everett, it must be a ‘normal expectation of every citizen’ that, if subjected abroad to a violation of a fundamental right, the British Government will not simply wash their hands of the matter and abandon him to his fate.
106. We would summarise our views as to what the authorities establish as follows:
i. It is not an answer to a claim for judicial review to say that the source of the power of the Foreign Office is the prerogative. It is the subject matter that is determinative.
ii. Despite extensive citation of authority there is nothing which supports the imposition of an enforceable duty to protect the citizen. The European Convention on Human Rights does not impose any such duty. Its incorporation into the municipal law cannot therefore found a sound basis on which to reconsider the authorities binding on this court.
iii. However the Foreign Office has discretion whether to exercise the right, which it undoubtedly has, to protect British citizens. It has indicated in the ways explained what a British citizen may expect of it. The expectations are limited and the discretion is a very wide one but there is no reason why its decision or inaction should not be reviewable if it can be shown that the same were irrational or contrary to legitimate expectation; but the court cannot enter the forbidden areas, including decisions affecting foreign policy.
iv. It is highly likely that any decision of the Foreign and Commonwealth Office, as to whether to make representations on a diplomatic level, will be intimately connected with decisions relating to this country’s foreign policy, but an obligation to consider the position of a particular British citizen and consider the extent to which some action might be taken on his behalf, would seem unlikely itself to impinge on any forbidden area.
v. The extent to which it may be possible to require more than that the Foreign Secretary give due consideration to a request for assistance will depend on the facts of the particular case.
Are the applicants entitled to relief in the present case?
107. We have made clear our deep concern that, in apparent contravention of fundamental principles of law, Mr Abbasi may be subject to indefinite detention in territory over which the United States has exclusive control with no opportunity to challenge the legitimacy of his detention before any court or tribunal. However, there are a number of reasons why we consider that the applicants’ claim to relief must be rejected:
i. It is quite clear from Mr Fry’s [Deputy Under-Secretary of State for Foreign and Commonwealth Affairs, appearing as witness] evidence that the Foreign and Commonwealth Office have considered Mr Abbasi’s request for assistance. He has also disclosed that the British detainees are the subject of discussions between this country and the United States both at Secretary of State and lower official levels. We do not consider that Mr Abbasi could reasonably expect more than this. In particular, if the Foreign and Commonwealth Office were to make any statement as to its view of the legality of the detention of the British prisoners, or any statement as to the nature of discussions held with United States officials, this might well undermine those discussions.
ii. On no view would it be appropriate to order the Secretary of State to make any specific representations to the United States, even in the face of what appears to be a clear breach of a fundamental human right, as it is obvious that this would have an impact on the conduct of foreign policy, and an impact on such policy at a particularly delicate time.
iii. The position of detainees at Guantanamo Bay is to be considered further by the appellate courts in the United States. It may be that the anxiety that we have expressed will be drawn to their attention. We wish to make it clear that we are only expressing an anxiety that we believe was felt by the court in Rasul. As is clear from our judgment, we believe that the United States courts have the same respect for human rights as our own.
iv. The Inter-American Commission on Human Rights has taken up the case of the detainees. It is as yet unclear what the result of the Commission’s intervention will be. It is not clear that any activity on the part of the Foreign and Commonwealth Office would assist in taking the matter further while it is in the hands of that international body.
108. For all these reasons the application before us must be dismissed.
In 2006, in the Al-Rawi case, the England and Wales Court of Appeal stated:
1. Introductory The first three appellants (“the detainee claimants”) are imprisoned by the American authorities in the detention facility at Guantanamo Bay. They were previously resident in the United Kingdom, having been granted indefinite leave to remain. They are not British nationals. Two of them, Mr El Banna and Mr Deghayes, have been granted asylum here. The other appellants (“the family claimants”) are members of their families. They are all resident in the United Kingdom. On behalf of all the appellants representations have been made to the Secretary of State for Foreign and Commonwealth Affairs (the first respondent) that he (Mrs Beckett had not then succeeded Mr Straw in that office) should make a formal request of the American authorities for the release of the detainee claimants. He declined to do so (the first respondent has now issued a request in respect of Mr Al Rawi, but on a basis different from that urged by the appellants). So the appellants sought orders of the High Court to the effect that the first respondent should make the request. The evidence is that it is against her (and her predecessor’s) better judgment to do so. She considers that it would probably be seen by the United States as unjustified special pleading by the United Kingdom, and would be likely to be both ineffective and counterproductive.
2. On conventional public law principles that would have been the end of the matter. The first respondent’s judgment could hardly be impugned as perverse in the Wednesbury sense ( 1 KB 223); although, as we shall show, Mr Rabinder Singh QC for the appellants has in fact sought to mount a Wednesbury challenge. But in any case the conduct of foreign relations by the executive government of the United Kingdom would have been regarded as beyond the scope of judicial review. A generation or more ago the courts would we think have said there was no jurisdiction to conduct such a review. More recently the line would have been – has been – that the conduct of foreign relations is so particularly the responsibility of government that it would be wrong for the courts to tread such ground; and aside from the division of constitutional territory, the courts have not the competence to pass objective judgment, hardening into law, in so intricate an area of State practice. However in this case, on 16 February 2006, Collins J granted permission to seek judicial review of the United Kingdom’s response to requests for assistance in securing the release and return of the detainee claimants. The case was heard by the Divisional Court (Latham LJ and Tugendhat J) on 22 and 23 March 2006. No point as to jurisdiction was taken. The Foreign Secretary and the Home Secretary were both impleaded, respectively as first and second respondent, the latter because the appellants sought relief which would secure the re-admission of the detainee claimants into the United Kingdom. The Divisional Court dismissed the application on 4 May 2006. Brooke LJ granted permission to appeal on 15 May 2006 and directed that the appeal be expedited. The appeal was argued before us over three days from 24 to 26 July 2006. The case could hardly have got less summary treatment at the hands of the courts.
3. What has been the engine of so painstaking a review in an area which in recent years was thought barely apt for judicial review at all? The prisoners at Guantanamo Bay, some of them at least, have suffered grave privations. In this appeal we should in our judgment proceed on the premise that the detainee claimants have been subjected at least to inhuman and degrading treatment. We say at least; the appellants claim they have been tortured. Although the respondents certainly make no unqualified admission of such misconduct (and the United States authorities have consistently denied any allegations of ill treatment), they do not as we understand it suggest that we should not, strictly for the purpose of this litigation, proceed on the premise we have stated. The family claimants assert that they too have suffered intensely (and continue to do so) by reason of the plight of the detainee claimants. The Divisional Court accepted that their suffering was at a level sufficient to engage Article 3 of the European Convention on Human Rights (“ECHR”) (judgment, paragraph 83).
6. In fact the law of human rights in the context of what has happened at Guantanamo Bay is not virgin to the English courts. They have visited it in an earlier, recent decision, Abbasi  UKHRR 76, in which similar claims were made to some of those put forward in this case. In Abbasi the detainee claimant was a British nationals. The claims were dismissed in the High Court and this court. One might have thought, since here the detainee claimants are not British nationals, that Abbasi is a fortiori the present case, and the respondent Secretaries of State submit that that is so. But various points of distinction are suggested. Clearly we must pay careful attention to the Abbasi decision, as did the Divisional Court.
17. All three detainee claimants have been declared enemy combatants by the Combatant Status Review Tribunal (“CSRT”), which was established by the United States authorities on 7 July 2004 following the decision of the Supreme Court in Rasul v Bush 542 US 446 (2004). The CSRT is composed of three commissioned officers. Its task is to examine the legality of individual detentions.
24. As we have said paragraphs 16–26 of the Divisional Court’s judgment give details of evidence about the treatment of detainees at Guantanamo Bay generally. There is a summary of material findings set out in a report of five mandate holders of Special Procedures of the Commission on Human Rights, made to the Economic and Social Council of the United Nations and dated 15 February 2006. The report recommended that the Guantanamo Bay detention facility should be closed without further delay. This echoed the views expressed in Resolution 1433(2005) adopted by the Parliamentary Assembly of the Council of Europe on 26 April 2005.
25. There is, of course, some controversy as to the specifics of what has been done at Guantanamo Bay. Again we will not repeat the whole of the Divisional Court’s narrative as to the general position. However it is we think useful to incorporate their account of the forms of treatment which have actually been authorised by the Secretary of Defense. The Divisional Court said this:
“20. … On the 2nd December 2002 [sc. thirteen months after the Guantanamo Bay facility was inaugurated] interrogation techniques contained in the Army Field Manual were approved by the Secretary of Defence which included:
(i) The use of stress positions (like standing) for a maximum of four hours;
(ii) Detention and isolation up to 30 days;
(iii) The detainee may have a hood placed over his head during transportation and questioning;
(iv) Deprivation of light and auditory and literary stimuli;
(v) Removal of all comfort items;
(vi) Forced grooming, shaving the facial hair etc.
(vii) Removal of clothing.
(viii) Interrogation for up to 20 hours.
(ix) Using detainees individual phobias (such as fear of dogs) to induce stress.
21. These guidelines were later rescinded and replaced by a memorandum which in its introduction states that:
‘US Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent to military necessity, in a manner consistent with the principles of the Geneva Convention.’
22. It then authorised inter alia the following techniques; that authorisation remains in force:
(i) Incentive/removal of incentive i.e. comfort items,
(ii) Change of scenery down (sic) might include exposure to extreme temperatures and deprivation and auditory stimuli;
(iii) Environmental manipulation: altering the environment to create moderate discomfort (e.g. adjusting temperature or producing unpleasant smells);
(iv) Sleep adjustment; adjusting the sleep times of the detainee (e.g. reversing sleep cycles from night to day). This technique is not sleep deprivation.
(v) Isolation: clearly isolating the detainee from any other detainee while still complying with basic standards of treatment.”
26. Mr Greenwood [appearing as counsel for the respondents] was at pains to emphasise that the harsher guidelines (subparagraphs (i)–(ix) set out in paragraph 20 above) were operative for a few weeks only, between 2 December 2002 and 15 January 2003. He also submitted that there is material before the court which casts rather a different light on conditions at Guantanamo Bay than the picture of unrelieved misery urged by the appellants. There is, for example, evidence of information and assurances given by the US authorities to FCO officials (in response to concerns raised by Mr Stafford Smith) as to the quality and availability of medical care and facilities. We do not propose to canvass the details: not because we do not respect the acute importance of what has been happening there, but because there is as we have said no substantive contest (strictly for the purpose of the appeal) to the premise upon which the case should in our judgment proceed, namely that the detainee claimants have at least suffered inhuman and degrading treatment. Moreover as an appellate court we are manifestly not equipped to determine the exact state of affairs as a fact-finding exercise; a consideration which has to be borne in mind not only as regards the general situation, but also in relation to the detainee claimants’ specific circumstances, where the evidence – which we do not dismiss – is hearsay reports of assertions by them. As we have already said the specifics of what has been done at Guantanamo Bay are controversial; and in that context it is to be noted that the United States government has expressed reservations about the United Nations mandate holders’ report and has indicated that it does not consider that the report accurately recorded information provided by it. Mr David Richmond, Director-General Defence and Intelligence at the FCO, says this in his first witness statement (14 March 2006):
“56. … [T]here remain serious difficulties in independently assessing what is actually going on at Guantanamo, in part because of the refusal of the US authorities to allow full, unrestricted and unconditional access to the detention facilities by external observers.”
He adds (paragraph 57):
“The United Kingdom Government also attaches considerable weight to public and private assurances from the US Government that no torture is being practised at Guantanamo.
The United States is a close and trusted ally, with a strong tradition of upholding human rights.”
27. The forms of treatment authorised by the Secretary of Defense, whose description by the Divisional Court we have set out, of course constitute hard information.
91. The family claimants rely on their enforced separation from the detainee claimants, with all the suffering that involves, to assert against the respondents violations of their rights under ECHR Articles 3 and 8. As we have indicated, the Divisional Court accepted that their suffering was at a level sufficient to engage Article 3. And for our part we have acknowledged that (for the purposes of Article 14) their complaints fall within the scope or ambit of Article 8. The family claimants also submit that the detainee claimants have been tortured, and the prohibition of torture imposed by international law has special force as a ius cogens erga omnes …
92. In order to sustain this part of their case the family claimants must demonstrate that the first respondent owes a duty, recognised by the law of the ECHR or our domestic law of human rights (or a duty which should be so recognised), to take such action as would provide at least a real prospect of alleviating the suffering of which they complain. The only suggested candidate for such action is the making of representations to the United States …
93. The principal obstacle facing the family claimants’ case on Articles 3 and 8 is not far to seek. It is that the source of their grave misfortunes is the action of a foreign sovereign State. Does, or should, our human rights jurisprudence require the United Kingdom to intervene with the United States out of a duty owed in domestic law to the family claimants?
94. It may well be thought there is a short answer: such a claim is closed off by Abbasi. We repeat for convenience what this court said at paragraph 79:
“… [T]he [ECHR] and the [HRA] [do not] afford any support to the contention that the Foreign Secretary owes Mr Abbasi a duty to exercise diplomacy on his behalf.”
One might be forgiven for supposing that the respondents’ argument in relation to the family claimants, relatives of detainees who are (unlike Abbasi) not British nationals, is a fortiori. But we do not think it would be right to dispose of this important part of the case in so summary a fashion. We have indicated that we would deal with the appellants’ contentions based on the ECHR more closely in addressing this part of the argument. The appellants, of course, seek to distinguish Abbasi. They pray in aid a number of matters, including “the issue of torture” and “the position and Convention claims of the family claimants” …
95. The appellants face the obvious difficulty that the Court of Appeal’s conclusions in Abbasi are cast in general terms. However, events have moved on. We will deal with the family claimants’ ECHR case on its merits.
96. In Bertrand Russell Peace Foundation v. UK (1978) 14 D&R 117 the European Commission of Human Rights had to consider claims under Articles 8 and 10 arising from the failure or refusal of the British postal authorities to complain to the Soviet authorities about the interception and destruction of mail sent by the claimant Foundation to Russia. The Commission declared the complaint to be inadmissible, on the basis that ECHR Article 1 could not be interpreted
“…so as to give rise to any obligation on the Contracting Parties to secure that non-contracting states, acting within their own jurisdiction, respect the rights and freedoms guaranteed by the Convention, even though, as in the present case, their failure to do so may have adverse effects on persons within the jurisdiction of the Contracting State.” (p.124)
97. This line of authority has never been doubted in Strasbourg. The appellants seek to distinguish Bertrand Russell by reference to these submissions (supplementary skeleton 21 July 2006 paragraph 16):
(4) The Foundation was not able to rely upon the State’s erga omnes ius cogens obligation to forestall torture.”
100. Point 4 requires fuller consideration. It is not ruled out by our statement of the premise on which this appeal should proceed, namely that the detainee claimants have been subjected at least to inhuman and degrading treatment – thus not necessarily torture. Very plainly there are allegations of torture. If the British government owed a duty to intercede in case of torture, it would no doubt have to arrive at a judgment, after enquiry as appropriate, as to the likely truth of the allegation; although it is to be noted that the European Court of Human Rights accepts a rule in respect of allegations of violations of Article 3 under the ECHR that they have to be established beyond reasonable doubt: see eg Ocalan v Turkey (12 May 2005) paragraph 180.
101. In A v. Secretary of State for the Home Department (No. 2)  2 AC 221 Lord Bingham of Cornhill said this (paragraph 33):
“It is common ground in these proceedings that the international prohibition of the use of torture enjoys the enhanced status of a jus cogens or peremptory norm of general international law. For purposes of the Vienna Convention, a peremptory norm of general international law is defined in article 53 to mean ‘a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character’. In R v Bow Street Metropolitan Stipendiary Magistrate, Ex p Pinochet Ugarte (No 3)  1 AC 147, 197-199, the jus cogens nature of the international crime of torture, the subject of universal jurisdiction, was recognised. The implications of this finding were fully and authoritatively explained by the International Criminal Tribunal for the Former Yugoslavia in Prosecutor v Furundzija  ICTY 3, 10 December 1998 in a passage which, despite its length, calls for citation …”
Part of the passage there cited reads:
“b) The Prohibition Imposes Obligations Erga Omnes.
151. Furthermore, the prohibition of torture imposes upon States obligations erga omnes, that is, obligations owed towards all the other members of the international community, each of which then has a correlative right. In addition, the violation of such an obligation simultaneously constitutes a breach of the correlative right of all members of the international community and gives rise to a claim for compliance accruing to each and every member, which then has the right to insist on fulfillment of the obligation or in any case to call for the breach to be discontinued.
152. Where there exist international bodies charged with impartially monitoring compliance with treaty provisions on torture, these bodies enjoy priority over individual States in establishing whether a certain State has taken all the necessary measures to prevent and punish torture and, if they have not, in calling upon that State to fulfill its international obligations. The existence of such international mechanisms makes it possible for compliance with international law to be ensured in a neutral and impartial manner.
(c) The Prohibition Has Acquired the Status of Jus Cogens.
153. While the erga omnes nature just mentioned appertains to the area of international enforcement (lato sensu), the other major feature of the principle proscribing torture relates to the hierarchy of rules in the international normative order. Because of the importance of the values it protects, this principle has evolved into a peremptory norm or jus cogens, that is, a norm that enjoys a higher rank in the international hierarchy than treaty law and even ‘ordinary’ customary rules. The most conspicuous consequence of this higher rank is that the principle at issue cannot be derogated from by States through international treaties or local or special customs or even general customary rules not endowed with the same normative force.
154. Clearly, the jus cogens nature of the prohibition against torture articulates the notion that the prohibition has now become one of the most fundamental standards of the international community. Furthermore, this prohibition is designed to produce a deterrent effect, in that it signals to all members of the international community and the individuals over whom they wield authority that the prohibition of torture is an absolute value from which nobody must deviate.
155. The fact that torture is prohibited by a peremptory norm of international law has other effects at the inter-state and individual levels. At the inter-state level, it serves to internationally de-legitimise any legislative, administrative or judicial act authorising torture. It would be senseless to argue, on the one hand, that on account of the jus cogens value of the prohibition against torture, treaties or customary rules providing for torture would be null and void ab initio, and then be unmindful of a State say, taking national measures authorising or condoning torture or absolving its perpetrators through an amnesty law. If such a situation were to arise, the national measures, violating the general principle and any relevant treaty provision, would produce the legal effects discussed above and in addition would not be accorded international legal recognition. Proceedings could be initiated by potential victims if they had locus standi before a competent international or national judicial body with a view to asking it to hold the national measure to be internationally unlawful; or the victim could bring a civil suit for damage in a foreign court, which would therefore be asked inter alia to disregard the legal value of the national authorising act. What is even more important is that perpetrators of torture acting upon or benefiting from those national measures may nevertheless be held criminally responsible for torture, whether in a foreign State, or in their own State under a subsequent regime. In short, in spite of possible national authorisation by legislative or judicial bodies to violate the principle banning torture, individuals remain bound to comply with that principle. As the International Military Tribunal at Nuremberg put it: ‘individuals have international duties which transcend the national obligations of obedience imposed by the individual State’.”
102. This learning shows that, as a matter of international law, (1) the status of ius cogens erga omnes empowers but does not oblige a State to intervene with another sovereign to insist on respect for the prohibition of torture (paragraph 151 of Prosecutor v Furundzija); (2) special standing is accorded to international bodies charged with impartially monitoring compliance (paragraph 152); (3) there can be no derogation from the prohibition (paragraph 153); (4) the prohibition is to be treated as an absolute value (paragraph 154); (5) any measure authorizing torture is illegitimate and proceedings may be taken to declare it so (paragraph 155); (6) perpetrators of torture may be held criminally responsible in the courts of any State (paragraph 155). These features are a powerful constellation, demonstrating, as Lord Bingham said (paragraph 33), that “[t]here can be few issues on which international legal opinion is more clear than on the condemnation of torture”.
103. But none of this imposes a duty on States, sounding in international law, of the kind for which the appellants must here contend. As a matter of the law of the ECHR, there is nothing to qualify the principle in the Bertrand Russell case. The appellants’ point 4 above appears to possess no more force than the others.
104. There is, however, a further authority to be considered. Before the hearing Brooke LJ drew the parties’ attention to the decision of the Constitutional Court of South Africa in Kaunda v The President of the Republic of South Africa CCT 23/04. The applicants were 69 South African citizens held in Zimbabwe on various charges relating to the allegation of an attempted coup against the President of Equatorial Guinea. The applicants feared extradition to Equatorial Guinea where they might face the death penalty following an unfair trial; and they made grave allegations about the conditions in which they were held in Zimbabwe. They sought orders to require the South African government to make certain representations on their behalf to the governments of both Zimbabwe and Equatorial Guinea, to take steps to secure their release or extradition and to see that their fundamental rights were respected.
105. The highest this authority goes in the appellants’ favour is, we think, a passage in paragraph 69 of the principal judgment delivered by Chaskalson CJ:
“There may thus be a duty on government, consistent with its obligations under international law, to take action to protect one of its citizens against a gross abuse of international human rights norms. A request to the government for assistance in such circumstances where the evidence is clear would be difficult, and in extreme cases possibly impossible to refuse. It is unlikely that such a request would ever be refused by government, but if it were, the decision would be justiciable, and a court could order the government to take appropriate action.”
But it is, we think with respect, very doubtful whether the court intended to vouchsafe an approach that would be more intrusive than that commended by this court in Abbasi, which is much referred to in the judgments in Kaunda. The Chief Justice said:
“77. A decision as to whether, and if so, what protection should be given, is an aspect of foreign policy which is essentially the function of the executive. The timing of representations if they are to be made, the language in which they should be couched, and the sanctions (if any) which should follow if such representations are rejected are matters with which courts are ill equipped to deal. The best way to secure relief for the national in whose interest the action is taken may be to engage in delicate and sensitive negotiations in which diplomats are better placed to make decisions than judges, and which could be harmed by court proceedings and the attendant publicity.
78. This does not mean that South African courts have no jurisdiction to deal with issues concerned with diplomatic protection…
79. For instance if the decision were to be irrational, a court could intervene. This does not mean that the courts would substitute their opinion for that of the government or order the government to provide a particular form of diplomatic protection…
81. What needs to be stressed, however, in the light of some of the submissions made to us in this case, is that government has a broad discretion in such matters which must be respected by our courts …”
106. This marches with this court’s observations in Abbasi at paragraph 106(iii), which we have set out; though it is right that the South African court does not speak in the language of “forbidden areas”. In the result the court refused relief in Kaunda, on the ground that the government’s response to the applicants’ approaches was within the wide margin of discretion which it enjoyed (paragraph 144(10) and (11)).
107. Kaunda is plainly, with great respect, a powerful and important authority. But it cannot in our judgment be treated as an engine to drive a significant change in the law of human rights or in any general principle of international law. In essence it was a domestic constitutional case. It does not push out the edges of ius cogens erga omnes; it does not shift or undercut the rule of the Bertrand Russell decision.
108. There are some other issues on this part of the case. There are first some points on the family claimants’ Article 3 claim. The respondents contend that the Divisional Court erred in holding that their level of suffering passed the Article 3 threshold. We entertain some misgivings as to the Divisional Court’s finding. The test for the gravity of what has to be shown for the purpose of Article 3 has been consistently expressed in many cases. A frequent formulation is that the ill-treatment concerned must attain “a minimum level of severity and [involve] actual bodily injury or intense physical or mental suffering” (see for example Pretty v United Kingdom
(2002) 35 EHRR 1, paragraph 52). However we are not prepared to hold that the Divisional Court’s conclusion was wrong. It is supported by powerful objective evidence. There may no doubt be room for differences of view but (although we are in as good a position to assess the evidence) we see no reason not to respect the lower court’s conclusion.
In 2010, in the Al-Jedda case (No 2), the England and Wales Court of Appeal (Civil Division) was called upon to decide the appeal of Mr Al-Jedda, a national of both the United Kingdom and Iraq, who sought damages for unlawful imprisonment by UK forces in Iraq. The Court of Appeal dismissed the appeal. Lady Justice Arden summarized the background of the case as follows:
1. In this action, Mr Al Jedda, who has both Iraqi and British nationality, seeks damages for unlawful imprisonment by reason of his detention by British forces in a military detention centre in Iraq. On this appeal we have to determine whether this action was properly dismissed by Underhill J on 5 March 2009 following the trial. The period for which damages is claimed constitutes part only of the period for which Mr Al Jedda was detained, namely that following the adoption of the new Constitution of Iraq on 20 May 2006 to 30 December 2007, the date of his release.
2. The claim was raised by amendment. Mr Al Jedda’s original claim was for declaratory relief or habeas corpus. In earlier proceedings, Mr Al Jedda sought declaratory relief and damages under the Human Rights Act 1998 (“HRA”) but the House of Lords held that no such claim lay because the United Kingdom’s obligations had been displaced by its obligations under the UN Charter ( 1 AC 332). The earlier proceedings leading to the decision of the House of Lords are referred to in this judgment as Al Jedda 1. This court in Al Jedda 1 held that, under section 11 of the Private International Law (Miscellaneous Provisions) Act 1995 (“PILA”), the law governing any claim for false imprisonment was that of Iraq. The House of Lords agreed with that holding.
3. In legal terms, this is an unusual case. Mr Al Jedda was detained by British forces in Basra on 10 October 2004 on security grounds. He was suspected of being a member of a terrorist group said to be involved in weapons smuggling and explosive attacks in Iraq. He remained in detention until 30 December 2007. He was at no time charged with any offence. It has been held that he is unable to bring any claim to test the lawfulness of his detention under the HRA (Al Jedda 1
), although, following the dismissal of that claim by the House of Lords, Mr Al Jedda has made an application to the European Court of Human Rights (“the Strasbourg court”). The Grand Chamber of the Strasbourg court had a hearing in his case on 9 June 2010, and judgment from that court is pending. It has also been held that Mr Al Jedda cannot bring any claim in tort under the common law. Notwithstanding that Mr Al Jedda’s detention was by British forces, the lawfulness of his detention can only be determined if, at all, in these proceedings, that is, under the law of Iraq, where the detention occurred.
Lady Justice Arden further stated:
The essential facts for the purposes of this appeal are: (1) Mr Al Jedda was detained pursuant to arrangements agreed between British forces and the Iraqi government prior to the adoption of the new Constitution in fulfilment of the United Kingdom’s obligations under the UN Charter; (2) those arrangements complied with [the 1949] Geneva [Convention] 4; (3) the Iraqi government did not withdraw its agreement to those arrangements after the adoption of the new Constitution; and (4) those arrangements made no provision of any sort for a hearing or any review by an independent judicial officer.
Lady Justice Arden considered the extent to which Article 78 of the 1949 Geneva Convention IV was relevant for determining the legality of the appellant’s detention. She found:
We are concerned with the meaning of Articles 15 and 37(1)(B) of the Iraqi Constitution. The provisions of Article 78 of [the 1949] Geneva [Convention] 4, and of the Siracusa
principles [on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights], are important, but of limited assistance in this task. The former deals with the position of an occupying power and the latter deals with the situation of emergency powers. Neither deals with the relationship between a government and its citizens where there has been no derogation because of an emergency. Under Article 61 of the Iraqi Constitution … , states of emergency can be declared for successive periods of thirty days, and all the necessary powers to deal with the emergency can then be delegated to the Prime Minster. Those powers must be regulated by laws which do not contradict the Constitution but, if they are necessary to deal with the situation (and that involves showing necessity), they may, as I read Article 61, depart from other powers, including Articles 15 and 37(1)(B). I respectfully doubt therefore the utility of praying in aid the turmoil in Iraq: if there was a state of emergency there were other provisions in the Constitution which authorised the taking of other powers which could have been but which were not used.
In contrast to Lady Justice Arden, Lord Justice Elias did take Article 78 of the 1949 Geneva Convention into account in considering the lawfulness of the detention review procedures. Lord Justice Elias found:
Was the continued internment contrary to Iraq law?
132. I first deal with the procedures which enabled the appellant to challenge the legal basis of his detention and then consider whether they were compatible with the law of Iraq.
133. The appellant was initially detained on 10 October 2004 when he was arrested on suspicion of being a member of a terrorist group involved in weapon smuggling and explosive attacks in Iraq. He was released without charge over three years later on 30 December 2007.
134. He does not seek to challenge the legality of the initial period of his detention. His contention is that it became unlawful when the Iraq Constitution came into force on 20 May 2006. It is alleged that certain laws and procedures which had until then justified his detention ceased to do so because they conflicted with Articles of the Constitution.
135. The power of detention was first conferred on the Coalition Provisional Authority (CPA) by a memorandum known as Memorandum No 3 and entitled “Criminal Procedures” (CPA 3). In its original form it was promulgated on 18 June 2003, but it was subsequently revised with effect from 28 June 2004 when the Iraqi interim government was formed; that was prior to the appellant’s detention. Section 6 of the revised version is headed “MNF [Multinational Force] Security Internee Process” and is as follows:
(1) Any person who is detained by a national contingent of the MNF for imperative reasons of security in accordance with the mandate set out in UNSCR [UN Security Council Resolution] 1546 (hereinafter “security internee”) shall, if he is held for a period longer than 72 hours, be entitled to have a review of the decision to intern him.
(2) The review must take place with the least possible delay and in any case must be held no later than 7 days after the date of induction into an internment facility.
(3) Further reviews of the continued detention of any security internee shall be conducted on a regular basis but in any case not later than six months from the date of induction into an internment facility.
(4) The operation, condition and standards of any internment facility established by the MNF shall be in accordance with Section IV of the Fourth Geneva Convention.
(5) Security internees who are placed in internment after 30 June 2004 must in all cases only be held for so long as the imperative reasons of security in relation to the internee exist and in any case must be either released from internment or transferred to the Iraqi jurisdiction no later than 18 months from the date of induction into an MNF internment facility. Any persons under the age of 18 interned at any time shall in all cases be released not later than 12 months after the initial date of internment.
(6) Where it is considered that, for continuing imperative reasons of security, a security internee placed in internment after 30th June 2004 who is over the age of 18 should be retained in internment for longer than 18 months, an application shall be made to the Joint Detention Committee (JDC) for approval to continue internment for an additional period. In dealing with the application the members of the JDC will present recommendations to the co-chairs who must jointly agree that the internment may continue and shall specify the additional period of internment. While the application is being processed the security internee may continue to be held in internment but in any case the application must be finalized not later than two months from the expiration of the initial 18 month internment period.
136. There are, therefore, two different sets of review arrangements. The first, under subsection 3, requires regular reviews throughout the internment. The second, under subsection 6, applies where, as in this case, the internment extends beyond 18 months. There must then be specific approval by the JDC.
137. The review under sub-section 3 was conducted by a body known as the Divisional Internment Review Committee (DIRC). It comprised the general officer commanding (GOC) (multi-national division) South East; the chief of staff of the division, a policy adviser to the GOC; the chief ‘J2’, being a lieutenant and colonel in the intelligence corps; and a commander “legal”, being a lieutenant colonel in the Army Legal Service. All save the policy adviser were senior serving officers.
138. The committee met on average once a month. Its terms of reference required it to review all available evidence, intelligence and other paperwork associated with the internee’s original detention, as well as any subsequently obtained information and any representations from the internee, and to determine whether his continued internment was necessary for imperative reasons of security.
139. Initially, the DIRC had no decision making power; it simply made recommendations to the GOC who had the final say. However, following criticisms of that arrangement in the Divisional Court in the Al-Jedda No 1 case the committee took the power to make the decision itself. I refer below to the nature of those criticisms.
140. The DIRC process was modified from some time in mid-2006. A further body, known as the Combined Review and Release Board (CRRB), was established. The purpose was to involve members of the Iraq government more fully in the detention process. The CRRB comprised representatives of the Iraqi Ministry of Justice, the Ministry of the Interior, and the Human Rights division, and three British officers. It did not have access to all the intelligence information and could merely make recommendations which the DIRC would have to consider. In fact, it did make a recommendation in December 2006 that the appellant should be released. That, however, was not accepted by the DIRC.
141. The procedure under sub-section 6 is rather different. The joint detention committee referred to in that subsection was established by CPA Order No 99 issued on 27 June 2004. It was a large committee numbering up to 21 members and included members of the Iraq interim Government as well as the MNF and a representative from each of the United States and the United Kingdom (who was the ambassador to Iraq). In fact, the task of considering particular cases under the 18 month rule was delegated to a sub-committee known as the Joint Detention Review Committee (JDRC). They had to make a recommendation as to whether the application should be approved or denied but as sub-section 6 makes clear, the co-chairs had the ultimate decision. They had to agree that the internment would continue and also specify any additional period of internment. So the decision was taken at the highest level.
Were the procedures compatible with the law of Iraq?
142. At the hearing before Underhill J, there were three issues which arose under this head. The first was whether CPA 3 continued to form part of the law of Iraq following the adoption of the new constitution. The judge held that it did, and that conclusion is not now challenged.
143. The second issue was whether the procedures complied with Articles 15 and/or 37 of the constitution … The former requires that any deprivation of liberty must be based on a decision by a competent judicial authority; the latter provides that no-one shall be kept in custody except according to a judicial decision. It is not entirely clear whether both these provisions are applicable. It may be that Article 37 is strictly the appropriate provision since this focuses on keeping someone in custody whereas Article 15 seems to focus on the original deprivation of liberty. However, nothing turns on it because it is conceded by Mr Swift [counsel for the Respondent] that at least one of these provisions applies and that the procedures were not strictly compliant with either since they did not involve a determination by a judge.
144. The third question is whether the procedures can be reconciled with the constitution by relying on Article 46 which is as follows: “Restricting or limiting the practice of any of the rights or liberties stipulated in this Constitution is prohibited, except by a law or on the basis of a law, and insofar as that limitation or restriction does not violate the essence of the right.”
145. The contention is that the procedures adopted did not violate the essence of the right in either Article 15 or 37 and were therefore compatible with the Constitution. The essential issue on this ground of the appeal is whether that submission is correct.
147. The fundamental issue is this: were the procedural safeguards adopted to give effect to CPA 3 sufficient to protect the essence of the rights conferred by Articles 15 and/or 37? This involves a consideration of two interrelated questions. First, what is the “essence” of the right conferred by these provisions? Second, do the procedures violate that essence?
148. As to the first question, there are two possible approaches as to what constitutes the essence of these rights. The first focuses on the specific language in the two Articles – the reference to “competent judicial authority” and “judicial decision” respectively – and treats the need for judicial involvement as an essential requirement in any lawful system of monitoring and review. The second concentrates on what the judicial oversight is designed to achieve. The purpose, it is said, is to prevent arbitrary detention taken without legal authority. The judicial role is to provide an independent and objective review of the material evidence, made in good faith, and to determine whether it is in accordance with the law. The reference to judicial authority or a judicial decision is intended to secure the adoption of procedures which will encompass these characteristics. On this analysis the essence of the right conferred by these Articles requires not the involvement of a judge; rather it requires that the decision displays the essential features of these typically judicial characteristics.
149. I have not found this an altogether easy issue to decide. However, on reflection I have come to the conclusion that the latter analysis is correct. I say this for two quite distinct sets of reasons: the first is general in nature; the second focuses on the particular circumstances in which this Constitution was passed.
150. The first is that in the context of depriving someone of liberty, the essence of justice according to law is that there is an objective and independent assessment of the relevant evidence measured against some legal criteria, in this case the alleged infringement of security. A requirement for a judicial decision according to law is the natural and obvious way of encapsulating these qualities. The judge will typically be learned in the law and will be independent of those seeking to justify deprivation of liberty. But it is those judicial qualities and not the status itself which is important. We would not, I think, consider that the decision met the terms of either Article 15 or 37, even if it were taken by an otherwise competent judge, if that judge did not display the qualities of independence, fairness and objectivity. This suggests that the reference to the judge is essentially a shorthand for those particular judicial qualities; requiring a judge to make a decision is the most reliable method of ensuring that the decision will be marked by these characteristics. Moreover, justice is more readily seen to be done where a judge is the decision maker.
151. However, as desirable as it is to require a judge to make these decisions, I do not consider that the involvement of a judge constitutes the essence of the rights conferred by Articles 15 and 37. In my judgment, the essence of the right lies in the characteristics encapsulated in the notion of a judicial decision. The removal of the judge will no doubt make it more difficult to secure the essential qualities of independence, objectivity and good faith, but I do not accept that only judicial procedures can secure the essence of those requirements.
152. Indeed, it seems to me that non-judicial procedures may be capable of better serving a detainee than would judicial procedures, where the reason for the detention is the threat to security. Judges are not in the best position to assess whether national security is threatened or not. They will perforce have to show considerable deference to the views of those more expert and experienced in making security assessments. The key stage in any review will in practice be the stage where that evidence is considered and assessed. A rigorous and independently minded assessor, knowledgeable in security issues, may be more willing and more able than a judge effectively to question security material which is alleged to justify detention.
153. This conclusion is reinforced by the circumstances in which the constitution was passed in this case. First, it was not drafted in a vacuum; the draftsmen would inevitably have had in mind the prevailing situation in Iraq. As Underhill J pointed out, this included particularly grave security problems. Indeed, the need to combat the security threat from terrorist activity is recognised in the constitution itself: see Article 7(2) which provides that “the State shall undertake to combat terrorism in all its forms.”
154. Second, it would have been fully appreciated by the draftsmen that the internment arrangements practised by the occupying forces did not include independent judicial scrutiny of the reasons for detention. Whilst I agree with Arden LJ that the mere fact that CPA 3 was kept in force when the constitution was introduced does not of itself demonstrate that it, or the procedures adopted in pursuance of it, were considered to be compatible with the constitution, nevertheless it seems to me to be of some relevance that nobody appears to have thought at the time that the procedures contravened the Constitution.
155. Third, in an emergency situation which may be declared in accordance with Article 61(9), or during a time of war, the Prime Minister is delegated the power to manage the affairs of the country. He cannot, however, adopt laws which contradict the constitution. It is, I think, unlikely that in such an extreme emergency situation it would be envisaged that detention of those considered to be a threat to the state could be lawful only if ordered by a judge. But that would necessarily follow if the appellant’s argument is correct. In this context it is pertinent to note that even under the European Convention [of Human Rights] the rights conferred by Articles 5 and 6 may be the subject of derogation in time of war or other emergency under Article 15, provided the circumstances are sufficiently pressing.
156. This is not to say that review of detention by an administrative panel is the same as review by a judge. But that is not the issue; the question is whether the use of such a panel is capable of protecting the essence of a judicial review. In principle I think that it is; the central core is an independent and genuine assessment by someone other than the initial decision maker.
157. That still leaves the question whether the procedures actually adopted in this case were sufficiently independent and impartial as to meet the essence of a “judicial” determination. In my view they were. Both the procedures under subsections 3 and 6 of CPA 3 involved consideration of the case by a number of persons some of whom would not have been parties to the original decision, and some are unconnected with the British contingent. They did so on the basis of information available to them, and written submissions from the detainee or his representatives. In my judgment this met the basic standards inherent in the “essence” of the right.
158. This conclusion receives some support from the decision of the Divisional Court in the Al Jedda No 1 case ( EWHC 1809 (Admin); Moses and Richards JJ). They had to consider whether the procedure then in force, namely where the ultimate decision to detain was made by the Commanding Officer following a recommendation by the DIRC, was consistent with the obligations under Article 78 of the  Geneva Convention [IV].
159. This Article provided that a detainee was entitled to a right of appeal or else a periodic review by “a competent body.” One of the issues before the court was whether a decision by the military commander alone could amount to compliance with that provision. The court accepted by analogy with other Articles of that Convention that in order to comply with Article 78 the decision to detain would have to be taken by an administrative board which offered the necessary guarantees of independence and impartiality.
160. The court rejected a submission by the Secretary of State that the Commanding officer was akin to an administrative board and would constitute a “competent body” within the meaning of Article 78; the decision of a single individual would not provide the necessary guarantee of fair treatment. The court continued:
Although the Commander and the panel do not have the qualities of independence and impartiality sufficient to meet the requirements of Article 6 ECHR, we do not think that complaint could properly be made of them in the context of Article 78 of Geneva IV. If, therefore, the decision had been taken jointly by the Commander and the panel, rather than by the Commander on the recommendation of the panel, the procedure would in our view have complied with Article 78.
161. Accordingly once their recommendation for a joint decision had been implemented, as it subsequently was, in the court’s view the procedures complied with Article 78. It follows that in the court’s opinion, although falling short of Article 6 standards, the procedures provided the necessary guarantees of impartiality and independence to satisfy the standards imposed under [the 1949] Geneva [Convention] IV.
162. I agree with that analysis, and in my judgment whilst the procedures did not provide the full institutional independence and impartiality which a judicial procedure would establish, nonetheless compliance with Geneva IV was enough to provide the essence of those characteristics as required by Article 46 of the Iraq constitution.
163. It follows that for these reasons, and also for the reasons given by Sir John Dyson, whose judgment I have read in draft, in my view there is no breach of Iraqi law in this case.
In 2003, during a debate in the House of Lords on the Anti-terrorism, Crime and Security Act 2001 (Continuance in force of sections 21 to 23) Order 2003, the UK Parliamentary Under-Secretary of State, Home Office, stated:
To date, 15 foreign nationals have been detained under Sections 21 to 23 of the Act. Of those, two have voluntarily left the UK. The other 13 remain in detention. The decisions to certify and detain these individuals were based on detailed and compelling intelligence and other material. That material will be examined by the SIAC [Special Immigration Appeals Commission], as provided under ATCS [Anti-terrorism, Crime and Security] Act.
All those detained have had access to legal advice throughout the detention period and there is no limit on the number of legal visits that detainees may receive. Those detained have immediate right of appeal to the Special Immigration Appeals Commission against the certificate. All but one of the detainees have already exercised that right. The ATCS Act provides for the SIAC regularly to review certificates, and it may overturn them. Detainees also have the right to apply for bail to the commission at any time and several have done so. This is not internment. It is open to the detainees to leave the United Kingdom of Great Britain and Northern Ireland, and two have done so.
Individual detainee appeals will be heard by the SIAC, starting in May. We believe these would have been heard much sooner had it not been for the legal challenge mounted by defendants to the detention powers - powers which the Court of Appeal upheld in October. We are clear that they must proceed as early as possible without any necessity to await the final outcome of the derogation challenge to the House of Lords, if leave is granted.
In 2003, in a reply to a written question in the House of Lords, the UK Minister of State, Home Office, wrote:
Sixteen foreign nationals have so far been detained using powers in Part IV of the Anti-terrorism, Crime and Security (ATCS) Act 2001. Eight were detained in December 2001, one in February 2002, two in April 2002, one in October 2002, one in November 2002, two in January 2003 and one in October 2003. One further individual has been certified under Part IV of the ATCS Act in August 2003 but is detained under other powers.
Of the total detained, two have voluntarily left the United Kingdom of Great Britain and Northern Ireland. The other 14 remain in detention.
The Home Secretary’s decisions to detain these individuals were made on the basis of detailed and compelling evidence. That evidence is being examined by the Special Immigration Appeals Commission as the individuals’ appeals are heard, as provided for under the ATCS Act. The commission is equivalent to the High Court. It has the power to overturn his decisions.
Where terrorism is concerned, our paramount responsibility is to ensure public safety and national security. So long as the public emergency subsists, where a person is suspected of terrorism but cannot currently be removed and for whom a criminal prosecution is not an option, we believe that it is necessary and proportionate to provide for extended detention, pending removal.
In 2010, the UK Ministry of Defence sent a letter on “Iraq Internee Review Procedures” to the Baha Mousa Inquiry, a public inquiry into the circumstances surrounding the death of Baha Mousa, an Iraqi civilian who died in September 2003 whilst detained at a UK detention facility in Basra, Iraq, and the treatment of those detained with him. In this letter, a Senior legal adviser of the Ministry of Defence stated:
The Inquiry made a request on 21 May 2010 (clarified on 24 May 2010) for “2003 documents as whether internment should be reviewed by a UK judge …”
In order to provide a concise explanation of … [its] position, [the] MOD [Ministry of Defence] has drawn together the relevant information derived from the documentation in this letter with some supporting background documentation.
Processes for reviews of internment
In MND(SE) [Multi-National Division (South East [Iraq])] there was a comprehensive process for review of the basis for detention of individuals which developed over time, comprising the Divisional Internment Review Committee, the Joint Detention Committee and Combined Review and Release Board. It may help the Inquiry when considering the issues relating to an independent review body to have an understanding of the review process that was actually in place.
The process for reviews of detentions in theatre was managed by the Divisional Internment Review Committee (DIRC). This was a UK board which met on a monthly basis to review internee cases. …
Following the decision of the Divisional Court in AI Jedda … , in about late 2005 the procedures under the DIRC for the review of detentions were revised to ensure that the decision under the review procedure was taken jointly by the Commander and the panel, rather than by the Commander on the recommendation of the panel. …
JDC and JDRC
Towards the end of 2005 consideration was given to the issue of whether the MNF [Multinational Force] could lawfully hold internees for a period longer than 18 months. Where it was considered that a security internee should be retained in internment for longer than 18 months, section 6(6) of CPA [Coalition Provisional Authority] Memorandum 3 (Revised) provided that an application should be made to the Joint Detention Committee (JDC) for approval for continued internment for an additional period. The JDC was established by CPA Order 99 (section 2(1)), which came into force on the same day as CPA Memorandum No 3 (27 June 2004) but it had never sat. Section 3 of Order 99 provided that the JDC would be responsible for establishing criteria for the detention of individuals, including the basis for release or transfer to Iraqi jurisdiction or custody. CPA Memo 6 contemplated that internees may be held for two months after the expiration of the 18 month period whilst an application to the JDC was made.
On 31 December 2005, the JDC voted to delegate its authority to review applications to members of a Joint Detention Review Committee (JDRC) which was set up at the same time, although ultimate decision-making rested with the JDC.
The JDRC was responsible for conducting the review of applications for the continued detention of security internees detained by MNF-1 for periods that would exceed 18 months. It was composed of –
1) 1 representative from each of the Iraqi ministries of: Interior, Human Rights, and Defence;
2) 1 representative from the Office of the Prime Minister;
3) 2 representatives from the Iraqi Ministry of Justice;
4) 3 officers from the MNF. When reviewing detention of persons detained by UK forces, one of the 3 will be the Senior British Legal Officer (a Colonel), while the other 2 will be of at least Lieutenant Colonel rank (or equivalent).
CRRB [Combined Review and Release Board]
Consideration was given in 2004 to involving the Iraqis in the MND(SE) review process, perhaps by placing vetted Iraqis on the existing DIRC in Basra, or by utilising the existing US/Iraqi Combined Review and Release Board (CRRB) in Baghdad by replacing the US personnel on the Board with their UK counterparts. The Secretary of State considered that it was best to utilise the review processes set up by coalition partners and the Iraqi government rather than create parallel review machinery in the UK. He was also conscious of the fact that the UK would not retain the power to intern long-term and was reluctant to set up a board which could have a relatively short life.
The CRRB was therefore established in 2006 as an additional part of the DIRC process with increased Iraqi involvement. The first CRRB session was on 11 September 2006 and reviews took place every three months. The CRRB process was the same as the review process used by the US, save that whereas their CRRB process had US and Iraqi involvement, for persons interned by UK forces the CRRB was composed of UK and Iraqi members. The Board was composed of six Iraqi representatives from the Iraqi Ministries of Justice, the Interior and Human Rights, and three UK forces officers. Because of its joint Iraqi/Coalition nature, the CRRB was party to the same set of intelligence as the JDRC.
Because it reviewed cases in the absence of the complete intelligence picture, the CRRB’s recommendations were passed to the DIRC. The DIRC, being party to the complete intelligence picture, could reject CRRB recommendations for release where they believed that an imperative threat to security remained. If they were content that no such threat existed they would approve release. This mirrored the US process, in which the CRRB’s recommendations are considered by the Commanding General of MNF-1 and could be rejected. The Iraqis were fully aware that the role of the CRRB was to make recommendations which then receive further consideration and as far as MOD is aware, did not raise any objections to this process.
Proposals for Independent Review Board
Within MOD in 2003 consideration was given to establishing reviews of internment of Iraqi civilians held in Iraq. Hence, in November 2003, Secretary of State agreed to the establishment of an Independent Review Board (IRS) for security internees held by UK forces in Iraq. At that time they were held under the power in Article 78 of the  Fourth Geneva Convention (GCIV) but from the end of occupation on 28 June 2004 they were held pursuant to the UN “all necessary measures” mandate conferred on the MNF by UN SCR [Security Council Resolution] 1546 (and subsequent resolutions).
The MOD considered that the existing arrangements in place (the DIRC) met MOD’s GCIV [1949 Geneva Convention IV] obligations. The aim of establishing the IRS was to go beyond the GCIV requirements and reflect MOD policy on the application of ECHR [the European Convention on Human Rights], whilst noting it was the MOD’s position at that time that ECHR did not apply as a matter of law. It was recognised that efforts should be made to ensure that as much protection was given to detainees as was practicable.
The initial proposal was to establish an IRB based on a modified version of the Special Immigration Appeals Commission (SIAC). Unlike SIAC, the judges would hold hearings in London and internees would not travel to the UK for hearings. This was for personal security and other practical reasons (i.e. the judges were based in the UK). Cases would be reviewed on the paper evidence which the DIRC considered in theatre.
It was originally envisaged (agreed December 2003/January 2004), in line with the SIAC, that the IRS’s role would be a decision-making one; viz. to decide whether or not an individual should continue to be interned. To maintain as much independence as possible, the Department of Constitutional Affairs (DCA) was to “own” the Terms of Reference, house, support and staff the IRS. The Lord Chancellor agreed to this proposal.
During 2004, discussions about this proposal took place between MOD and the DCA as well as with PJHQ and theatre. …
However, these proposals were not finalised or progressed any further because MOD considered itself obliged to put them on hold pending the outcome of legal action in the High Court and Court of Appeal (the AI Skeini and AI Jedda cases) given that they concerned the scope of the ECHR and the right of coalition forces in Iraq to intern. In particular, the case of AI Jedda raised issues regarding the lawful basis for detentions in lraq.
In summary and most importantly, the Divisional Court in AI Jedda held that the DIRC met MOD’s international obligations under Article 78 GCIV. Although they did not strictly meet the requirements of Article 78, since the decision maker was a single individual rather than an administrative board, non-compliance was more technical than substantial … If the decision had been taken jointly by the Commander and the panel, rather than by the Commander on the recommendation of the panel, the procedure would have complied with Article 78. However, the substantive conditions of Article 78 had been met so the detention was not unlawful.
Further, the court held that Article 5(1) [ECHR] did not apply … (and so there was no breach of the ECHR). Even if it did, the claimant could not succeed in the claim under Article 5(4) [ECHR] … because Mr AI Jedda did have access to a court to challenge his detention.
As mentioned above, following that decision the procedures under the DIRC for the review of detentions were revised in accordance with the conclusions of the court.
Given that the review process had developed since the original proposals in 2004, and following the AI Jedda judgment, MOD was clearer on how the legal framework under which UK forces operated with respect to security detention would be interpreted by the UK courts. A decision was taken not to pursue the concept of an IRB any further. MOD was confident that the existing review procedures met the Department’s legal obligations. …
The House of Lords’ decision in AI Jedda ( UKHL 58 - 12 December 2007) confirmed that of the lower courts on the points mentioned above. However, their Lordships made a number of comments regarding the power of internment. Lord Carswell stated that the power has to be exercised in such a way as to minimise the infringements of the detainee’s rights in particular by adopting and operating to the fullest practicable extent the following safeguards including (1) the compilation of intelligence about such persons which is as accurate and reliable as possible; (2) the regular review of the continuing need to detain each person; and (3) a system whereby that need and the underlying evidence can be checked and challenged by representatives on behalf of the detained persons, so far as is practicable and consistent with the needs of national security and the safety of other persons.
The DIRC review process ensured that the first two safeguards were already in place. MOD considered that the third safeguard would be delivered by virtue of the detainee’s right under Article 5(4) ECHR (to have the lawfulness of detention decided by a court) to bring proceedings in UK courts.
[footnotes in original omitted; emphasis in original]
In 2010, in its closing submissions to the public inquiry into the circumstances surrounding the death of Baha Mousa and the treatment of those detained with him by UK armed forces in Iraq in 2003, the UK Ministry of Defence stated:
10.27 … [Article 78(2) of the 1949 Geneva Convention IV or GC4] sets out the minimum procedural protections for internees. The inquiry will note straight away that this provision does not require that internment appeals or reviews are conducted by a judge. The requirement is for a “competent body” to conduct the review and not a judge. This should not be a cause for surprise in a body of rules regulating belligerent occupations of all descriptions. Consequently, the MOD [Ministry of Defence] does not accept the submissions, if it is made by the detainees, that a judge was required by IHL to review their detentions under Art. 78 GC4. Further, because GC4 is the lex specialis, the MOD does not accept that any inconsistent provision of international human rights law can operate in the legal space of belligerent occupation so as to require internment to be reviewed by a judge. It recognises though that the legal requirement is a separate question to whether, if it has been a practical proposition, it would have been desirable to appoint a judge to conduct such appeals and reviews, but this was considered extensively by MOD in conjunction with Department of Constitutional Affairs at the time. Any such appointment though would have gone beyond the requirements of the applicable law.
10.28 The ICRC commentary to this part of Art. 78 sheds further light on the level of procedural protection required. In particular, it implicitly confirms that there is no requirement for a judge and points to the fact that the requirement for a board has the advantage that no single person will be responsible for the review decision.
The Ministry of Defence also stated:
[D]uring the period of belligerent occupation if and to the extent the ECHR may apply (which is not accepted …), IHL, and in particular the internment provisions of GC4, qualified but did not wholly displace Art. 5 ECHR. During the period of belligerent occupation IHL took precedence because it is the lex specialis
. The opinions of their Lordships in Al Jedda
are of considerable assistance. They reinforce the submission that there is no requirement for a judge (because GC4 expressly permits either a court or a body).
The Ministry of Defence further stated:
Unlike Art. 5 ECHR, Art. 9 ICCPR [1966 International Covenant on Civil and Political Rights] does not provide a closed list of the permitted grounds for depriving a person of liberty. It simply requires that deprivation of liberty must not be arbitrary and must be in accordance with law (both substantive and procedural). Article 43 of the Hague Regulations and Art. 78 GC4 provides a clear legal basis for internment during belligerent occupation. Further, even if internment without trial under Art. 78 GC4 were to be found to be incompatible with Art. 9 ICCPR, or any part thereof, then the former takes precedence during belligerent occupation because it is the lex specialis
. Accordingly, Art. 9 ICCPR does not preclude internment in accordance with Art. 78 GC4.