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BRITAIN’S detention policy in Afghanistan is unlawful, the High Court in London ruled yesterday in a landmark judgement.
Since November 2009 British policy has involved internment to enable interrogation weeks or months beyond the permitted 96 hours under the International Security Assistance Force (ISAF) guidelines.
Mr Justice Leggatt found that detention or internment beyond the 96 hours “went beyond the legal powers available to the UK.”
The ruling came in a claim for damages brought by Leigh Day & Co solicitors on behalf of Afghan national Serdar Mohammed in conjunction with a judicial review case brought by Public Interest Lawyers (PIL) for fellow Afghans Mohammed Qasim, Mohammed Nazim, and Abdullah.
Mr Mohammed was detained by British troops in 2010 and held by them without charge or access to a lawyer for 110 days before being handed over to the Afghan security services, whom he alleges brutally tortured him.
Mr Justice Leggatt found that Mr Mohammed’s detention was in “stark violation” of his rights and that it would have been apparent to the Ministry of Defence that its forces were acting without legal authority.
A Leigh Day spokesperson said: “When we send our troops abroad it is the Ministry of Defence’s job to ensure that the mechanisms are put in place to ensure that they operate within the rule of law.
“As the court has made clear, the MoD fully understood the parameters of the law regarding detention and yet they decided to operate flagrantly outside those rules.”
PIL’s participation at the hearing was by direction of the Court, in recognition of the significance of the judgment for its claimants who also suffered such detention.
PIL solicitor Phil Shiner said: “This is a judgment of profound importance with far-reaching implications for future UK operations abroad where UK personnel are on the ground.
“It tells the MoD again that no matter how they try to avoid accountability for the UK’s actions abroad, international human rights law will apply and, thus, UK personnel must act accordingly.”
The MoD said it would appeal the ruling.
Defence Secretary Philip Hammond said: “We cannot send our armed forces into battle with both hands tied behind their backs.”
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