Camp Bastion: A British Guantanamo for Afghans Detainees?

By Dr. Noelle Quenivet. ILHRU. UWE, Bristol

As about 90 Afghan prisoners are held without charge Camp Bastion it is sometimes compared to the Guantanamo Bay detention centre. Although the comparison does not hold on many grounds, the prolonged detention of such individuals is likely to violate the European Convention on Human Rights whose Court has on numerous occasions stressed ‘the fundamental importance of the guarantees contained in Article 5 for securing the right of individuals in a democracy to be free from arbitrary detention at the hands of the authorities.’ (El-Masri v the Former Yugoslav Republic of Macedonia, Application 39630/09, para 230) Article 5(1) ECHR circumscribes the situations in which individuals may be lawfully deprived of their liberty (Manzoni v Italy, Application No 19218/91, para 25; Quinn v France, Application No 18580/91, para 42). Moreover, deprivation of liberty must be justified with regard to first the initial reason for the deprivation and second the continuation of such deprivation.

The initial detention does not appear to be neatly covered by any of the Article 5(1) justifications but may be at a stretch (which however seems to run against a narrow interpretation of Article 5(1) as required by the ECtHR (El-Masri, para 230)). Article 5(1) (c) allows for ‘the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority of reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so’. It is claimed that ‘[m]any are suspected of involvement in the preparation, facilitation, or laying of Improvised Explosive Devices (IEDs), against UK forces, or were picked up at the scene of shootings of British troops’ and thus fulfil some of the requirements. Yet, the main issue is whether it is possible to consider the ‘competent legal authority’ to cover the Afghan authorities. As the object of Article 5 (1) (c) is to bring criminal proceedings against the individuals and this can be attained by transferring the detainees to the Afghan authorities which will then investigate the matter further and, if needed, prosecute the individuals under Afghan law it might be possible to say that indeed the Afghan authorities are the ‘competent legal authority’. The next point is whether the deprivation was well-founded, i.e. reasonable suspicion can be established. In Murray v UK (Application 14310/88), a case dealing with an individual suspected of terrorist activities, the ECtHR emphasised that the bona fide of a suspicion was an indispensable element of its reasonableness (para 61) and this was to be determined on facts of information which objectively link the suspect to the supposed crime (para 63). The UK argues that its ‘forces hold detainees where there is evidence linking them to criminal activity before transferring them to Afghan authorities for further investigation prior to prosecution.’ (Ministry of Defence, Transfer of Detainees to Afghan Custody to Resume, 6 June 2013). Although this would obviously need to be proven on an individual basis it sounds like the arrests were made on reasonable grounds.

Article 5(1)(f) could also apply as it provides for ‘the lawful arrest or detention … of a person against whom action is being taken with a view to deportation or extradition’. One could view the transfer to the Afghan authorities as a form of extradition as it is an agreement between two States with regard to the transfer of one individual for investigation and prosecution purposes. Nonetheless this would need to be tested in court as there is no case-law yet supporting such an interpretation. Al-Sadoon and Mufdhi, two individuals who had been transferred from the British to the Iraqi authorities, did not allege a violation of Article 5(1)(f) ECHR (Al Saadoon and Mufdhi v UK, Application No 61498/08).

The second element of Article 5(1) which specifies that deprivation of liberty must be “in accordance with a procedure prescribed by law” is fulfilled as national law provides for the detention of suspects for 96 hours. In exceptional circumstances, e.g. to gather critical intelligence, individuals can be held for longer periods of time.  

In sum, the government may rely on both Articles 5(1)(c) and (f) to justify the arrest and initial detention of the Afghans.

Whilst the initial detention may be lawful, the continuous detention that sometimes lasted for up to 14 months does not prima facie appear to be so. The ECtHR explained that detention can only continue if it is provided by law or it amounts to arbitrary detention. The requirement of the legal basis for any deprivation of liberty extends to the whole period for which it lasts. There does not seem to be a basis for the detention which thus appears to be arbitrary. Indeed, the ECtHR has firmly stated that ‘a practice of keeping a person in detention without a specific legal basis, but because of a lack of clear rules governing the detainee’s situation, with the result that a person may be deprived of his liberty for an unlimited period without judicial authorisation, is  incompatible with the principles of legal certainty and the protection from arbitrariness, which are common threads throughout the Convention and the rule of law’ (Jėčius v Lithuania, Application No 34578/97, para 62). On this basis the prolonged detention of Afghans violates Article 5(1) as there is no legal basis to detain these individuals.

Even if one were to accept that there was a basis in Article 5(1)(c) ECHR for the detention, is it lawful, i.e. ‘in accordance with a procedure prescribed by law’, bearing in mind that this must be read as to cover not lawfulness in relation to substantive and procedural national provisions but also to the purpose of Article 5, namely to protect the individual from arbitrariness (Kurt v Turkey, Application 15/1997/799/1002, para 122)? One could draw an analogy to the case K-F v Germany (Application No 144/1996/765/962) whereby the Court observed that whilst national law allowed the authorities to detain an individual for 12 hours to verify an individual’s identity the measures for checking identity should be carried out during the period allotted by law. As the individual had been detained for 40 minutes beyond the prescribed time, the detention ran foul of Article 5 ECHR (paras 72-73). Applied to the Afghan detainees, this means that past the 96 hours allotted by law (barring exceptional circumstances) the individuals had to be transferred to the Afghan authorities or charged by a competent authority. There seems to be a violation of Article 5(1)(c) ECHR.

Could the government possibly argue differently based on Article 5(1)(f) ECHR? In fact, although Article 5(1)(f) ECHR does not set time-limits on the length of the detention and does not require States to do so (Bordovzkiy v Russia, Application No 49491/99, para 50), it was held that proceedings must be conducted ‘with requisite diligence or if the detention results from some misuse of authority it ceases to be justifiable under 5 (1) (f)’ (Lynas v Switzerland, Application No 7317/76, at 167) although the Commission also introduced an apportionment of ‘blame’ test (X v United Kingdom, Application No 8081/77, at 209-210). These tests were accepted (Kolompar v Belgium, Application No 11613/85, para 42) by the Court which explained that to determine whether the proceedings exceeded a reasonable time, due regard had to be had to the complexity of the case, the conduct of the applicant and State authorities and whether any arbitrariness could be shown (Quinn; Bordovzkiy; Chahal v UK, Application No 22414/93). In Chahal, the Court determined that detention did not violate Article 5(1)(f) on account of the diligence ‘bearing in mind what was at stake for the applicant and the interest that he had in his claims being thoroughly examined by the courts’ (para 117). In other words, it might be argued that if the detention is delayed in the interest of the individual concerned, he/she could not claim to be a victim of a prolonged detention. Again, one could draw an analogy here as the UK was ‘[s]ince November last year, … working with the Afghan authorities to identify a safe and effective route to transfer those captured by UK forces on the battlefield into the Afghan judicial system (Ministry of Defence, Transfer of Detainees to Afghan Custody to Resume, 6 June 2013) and it was alleged that it was in the interest of the Afghan detainees not to be transferred. That being said, the ECtHR also stressed that for detention to be lawful sufficient guarantees against arbitrariness must exist (para 19) and these have not been provided to Afghan detainees who have been unable to challenge their detention (Koktysh v Ukraine, Application No 43707/07, para 75).

As a result, if the prolonged detention of Afghan detainees is based on Article 5(1)(c) then it is likely that the UK has breached its ECHR obligations. In case it is possible to stretch Article 5(1)(f) to the situation of the Afghan detainees, it is likely that although the UK might have acted in accordance with the substance of the law it appears to have violated its procedural safeguards.

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