Secretary Of State For Defence Research Articles

Langford v Secretary of State for Defence: taking a functional approach towards survivors' benefits?

This is a commentary on Langford v Secretary of State for Defence, where the Upper Tribunal's decision was overruled by the Court of Appeal. The decision has implications for the payment of pensions and survivors' benefits in future cases, but, as will be argued here, the case is also important from a family law perspective.

Regina (Nour) v. Secretary of State for Defence

War and armed conflict — International humanitarian law — Human rights law — Domestic legal obligations of State when providing training and assistance to foreign armed forces — Whether serious risk that training and assistance might directly or significantly contribute to violation of human rights/international humanitarian law — Duty to carry out appropriate assessment — Whether assessment irrational — Whether justiciable in English courtsHuman rights — Non-justiciability — Acts of executive — Foreign relations — Courts’ power of review — Whether reputational damage may be caused to State when providing training and assistance to foreign armed forces — Duty to carry out lawful assessment — Whether subject to judicial review — The law of England

Al-Saadoon and Others v. Secretary of State for Defence

Al-Saadoon and Others <i>v</i>. Secretary of State for Defence

IV. The UK and the Northern Group: A Necessary Partnership

Between late 2017 and early 2018, the UK prime minister, the secretary of state for defence, chief of the Defence Staff and chief of the General Staff all stated that Russia constitutes the primary security threat facing the UK. The UK’s armed forces have been increasingly engaged in actions designed to counter Russian aggression in continental Europe, the High North and the Atlantic Ocean. The UK has always played a role in European affairs, whether specifically related to defence and security or at the higher level of great-power politics. To the UK, the Northern Group appears likely to become one of the foremost defence cooperation forums for serious and genuine discussions about European security after it leaves the EU. Within Europe, the UK is increasingly looking north to work with trusted and like-minded states, and the Northern Group and Joint Expeditionary Force mechanisms offer the greatest potential.

R (Hussein) v. Secretary of State for Defence

War and armed conflict — Geneva Conventions of 1949 — Common Article 3 and Article 17 of Geneva Convention III — Prisoners of war — Interrogation techniques — Judicial review of Secretary of State’s policy authorizing questioning of captured persons — Whether policy giving rise to unacceptable risk of inhumane treatment, threats, insults, or unpleasant or disadvantageous treatment — Whether policy compatible with the United Kingdom’s obligations under international law — The law of England

Strategic and Budgetary Necessity, or Decision-making ‘Along the Grain’? The Royal Navy and the 1981 Defence Review

ABSTRACTThe 1981 Defence Review undertaken by John Nott as Secretary of State for Defence controversially and dramatically cut the capabilities of the Royal Navy’s surface fleet. Many of those involved in these decisions have emphasised the budgetary and politico-strategic drivers for these reductions in capability, and the first generation of academic analysis has broadly followed this position. However, recently released government and private archival sources demonstrate that Nott’s review was initially much more severe than thought, and that this was due as much to the presumptions and assumptions of the key decision makers as to any strategic or budgetary factors.

Regina (Hassan) v. Secretary of State for Defence

391War and armed conflict — Occupation — Military intervention — Effective control over territory or area of a second State — Iraq following military intervention in 2003 — Prisoners of war — Civilians — Detention — Memorandum of Understanding between Australia, United Kingdom and United StatesHuman rights — Jurisdiction — Whether exclusively territorial — Conditions for extraterritorial jurisdiction — Detention of civilian during armed conflict in foreign State — Transfer of detainees by a detaining State to responsibility of a second State — Duty of detaining State to conduct inquiry into alleged human rights abuses — European Convention on Human Rights, 1950 — Article 1 — Obligation to respect human rights — Convention not universally applicable — Jurisdiction — Territorial jurisdiction — Extraterritorial jurisdiction — Extraterritorial application of Convention only in exceptional circumstancesTreaties — Nature — Memorandum of Understanding — Whether legally bindingJurisdiction — Territorial — Extraterritorial jurisdiction — European Convention on Human Rights, 1950 — Extraterritorial application of Convention in exceptional circumstances only — Effective control of relevant territory — Activities of consular agents abroad, on vessels or in military facilities — Acts producing effects in or performed outside Contracting States’ territory — The law of England

Al-Jedda v. Secretary of State for Defence (No 2)

622Jurisdiction — Justiciability — Actionability — Tortious activity — Immunity — Conflict of laws — Interpretation and application of foreign laws — Act of StateHuman rights — Right to liberty and security of person — Internment — Internment on suspicion of threat to security — Right to judicial review of detention — “Essence” of the right to liberty and judicial review of detention — Unlawful detention — DamagesRelationship of international law and municipal law — Treaties — United Nations Charter, 1945 — European Convention on Human Rights, 1950 — United Nations Security Council Resolution 1546 (2004) — Coalition Provisional Authority (“CPA”) — CPA Regulation 3 — CPA Regulation 17 — Iraqi Transitional Administrative Law or Interim Constitution — Iraqi Constitution — United Kingdom Private International Law (Miscellaneous Provisions) Act 1995 — Whether detention of appellant unlawful under Iraqi law — Whether relevant Iraqi provisions inconsistent with international lawState responsibility — Occupation of Iraq — Multinational Force in Iraq — Vicarious liability — Defences — Act of State — Public policy — Relevance of nationality of person against whom act of State pleadedWar and armed conflict — Occupation — Iraq — End of occupation — Powers of belligerent occupant — Internment — Fourth Geneva Convention, 1949 — Security Council Resolution 1546 (2004) — The law of England

Practice Summary: Decision Conferencing Rationalises Defence Training

In October 2010, the UK Secretary of State for Defence announced a process to transform defence to meet the challenges of the future. This process set out a series of complex decisions, including the future location for defence technical training. Five months after the announcement, the Defence Technical Training Change Programme (DTTCP) team contacted Catalyze to request support for the DTTCP decision-making process. The team recognised that this would be an important and highly sensitive process, and would need to deliver efficiencies while improving the overall value delivered by defence technical training. Catalyze used decision conferencing and multicriteria decision analysis to help the DTTCP team and stakeholders understand the challenges and reach agreement on a solution. In July 2011, the Secretary of State for Defence announced the recommended location and the migration plan for the three branches of military service to consolidate specific technical training services into a single site.

SELLING THE PASS: HABEAS CORPUS, DIPLOMATIC RELATIONS AND THE PROTECTION OF LIBERTY AND SECURITY OF PERSONS DETAINED ABROAD

AbstractOn 31 October 2012 the Supreme Court of England and Wales handed down its judgment in Rahmatullah v Secretary of State for Foreign Affairs and Secretary of State for Defence [2012] UKSC 48. The case concerns an application for habeas corpus brought by a citizen of Pakistan originally detained by the United Kingdom in Iraq before being transferred into the custody of the United States. Rahmatullah addresses important issues concerning the extraterritorial reach of habeas corpus under English law in respect of persons held in the custody of a foreign State, as well as the international rule of law. The case may be considered a legal victory for persons detained without trial by the US in facilities thought to be beyond the reach of the courts. However, in reality any strength in the arm of the law is drained by the priority given to the conduct of foreign affairs, ‘forbidden territory’ for the courts, over the Court's ruling and the UK's obligations under international law. The case is examined in the light of similar jurisprudence from US and Australian courts.

Secretary of State for Foreign and Commonwealth Affairs and Secretary of State for Defence v. Rahmatullah

607War and armed conflict — Detainees — Protected persons — Occupied territory — Civilians — Prisoners of war — Pakistani national arrested by British forces in Iraq during occupation by coalition armed forces — Geneva Convention relative to the Protection of Civilian Persons in Time of War, 1949 — Whether detainee a protected person — Provision regarding nationals of neutral States — Transfer to the United States — Continuing obligations of the United Kingdom — Memorandum of Understanding — Detainee transferred to Afghanistan in breach of Memorandum of Understanding — Whether United Kingdom entitled to require his return — Whether habeas corpus available remedy in United Kingdom courtsTreaties — Non-binding agreements — Memorandum of Understanding — Nature — Significance — Assumption that State will comply with undertakings made in Memorandum of Understanding — Memorandum of Understanding concerning transfer of detainees in IraqRelationship of international law and municipal law — Treaties — Memorandum of Understanding — Effect in municipal law — Memorandum of Understanding regarding transfer of detainees in Iraq — Effect in English law — The law of England

The Queen (on the application of Evans) v. Secretary of State for Defence

508Human rights — Torture — Inhuman and degrading treatment — United Kingdom operations in Afghanistan — United Kingdom transferring detainees to Afghan authorities — National Directorate of Security detention facilities — Kabul (Department 17), Kandahar and Lashkar Gah — Whether United Kingdom transferees at real risk of torture or serious mistreatment — Whether practice of transfer breaching Secretary of State’s policy — Article 3 of European Convention on Human Rights, 1950 — Relevant principles — Role of court — Standard in international legal instruments — Article 3 of Torture Convention, 1984 — Class case — Whether consistent pattern of gross and systematic violations of human rights — Other relevant considerations — Whether proper evidential basis — Independent reports — Allegations of United Kingdom transferees — Canadian material — Safeguards — Afghanistan–United Kingdom Memorandum of Understanding and related assurances — Whether sufficient — Practical operation of transfer arrangements — Access to transferees by United Kingdom personnel — Credibility of allegations — Whether system of specific safeguards insulating United Kingdom transferees altogether from risk of ill-treatment — Whether current United Kingdom practice of transfers unlawfulWar and armed conflict — United Kingdom operations in Afghanistan — Security and rule of law in Afghanistan — Effectiveness of operations — Law of armed conflict — Power to capture insurgents — Power to detain insurgents temporarily — No power of indefinite internment — United Kingdom policy — Suspected insurgents detained by United Kingdom armed forces transferred to Afghan authorities for questioning and prosecution — Whether all transferees at real risk of torture or serious mistreatment — Safeguards — Nature and effectiveness — Afghanistan–United Kingdom Memorandum of Understanding and related assurances — Practical operation of transfer arrangements — United Kingdom assessment of no real risk of torture or mistreatment — Whether current practice of transfers unlawfulStates — Sovereignty — Afghanistan — United Nations Security Council Resolutions — International community pledging to support and ensure respect for Afghan sovereignty — Afghanistan having jurisdiction over all persons in territory unless expressly agreed otherwise — Entitlement of Afghan Government to 509prosecute those in jurisdiction committing offences under Afghan law — Security and rule of law in Afghanistan — Afghanistan having overall responsibility — Afghan Constitution and Penal Code prohibiting all acts of torture and inhuman punishment — Whether United Kingdom practice of transferring detainees to Afghan authorities unlawful — The law of England

THE EUROPEAN COURT OF HUMAN RIGHTS – UNIVERSALIST ASPIRATIONS OF PROTECTION IN THE MIDDLE OF THE EDGE OF OCCUPATION

This current commentary considers the case of Al-Saadoon and Mufdhi v the United Kingdom (a recent decision of the European Court of Human Rights (ECtHR)) and the issues upon which it turns. It raises the question of whether an occupying force has an obligation to protect the human rights of those under occupation. The inherent tensions, conflicts, contradictions, and limits posed in and by such a question are obvious. The occupying force – the UK – in this case constituted itself as part of the Multi-National Force (MNF) and invaded Iraq in 2003. The invasion and occupation was subsequently held to be illegitimate. The question of whether Iraqi citizens have a right to protection under any International Convention or treaty or any human rights instrument is a question of considerable importance and was the question so considered, in the case of Al-Saadoon and Mufdhi, in the case of Al-Skeini, and whether British forces were so protected was considered in R (Smith) v Secretary of State for Defence, to which I shall refer later.

R (Mousa) v Secretary of State for Defence – Investigating Allegations of Torture: The Importance of Independence

(2012). R (Mousa) v Secretary of State for Defence – Investigating Allegations of Torture: The Importance of Independence. Judicial Review: Vol. 17, No. 2, pp. 133-135.

Human rights imperialism: Extra-territorial jurisdiction and the Al Skeini case

In the 2007 case of R (Al-Skeini) v. Secretary of State for Defence (2007), the United Kingdom refused to extend rights under the European Convention on Human Rights to civilians shot by British troops who were at that time in occupation of the Iraqi city of Basra. It justified this refusal on the grounds that it would constitute 'human rights imperialism' to apply European human rights norms to Iraq. This article examines some of the historical resonances of this decision, analysing the reasoning of the House of Lords in the context of Britain's former relationship to its colonial possessions and its historical scepticism of European Human Rights Institutions.

Rahmatullah v. Secretary of State for Foreign and Commonwealth Affairs and Secretary of State for Defence (No I) ([2011] EWCA Civ 1540)

819War and armed conflict — Detainees — Protected persons — Civilians — Prisoners of war — Transfer by Detaining Power to another State — Conditions of transfer — Geneva Conventions III and IV — Memoranda of Understanding — Whether Detaining Power entitled to require return of detainee — Applicant captured in Iraq in 2004 by United Kingdom — Transfer to United States custody — Applicant taken to Afghanistan — Whether sufficiently in control of United Kingdom authorities — Habeas corpusRelationship of international law and municipal law — Conduct of foreign relations — Justiciability — Person detained by United States following transfer by United Kingdom — Whether writ of habeas corpus could issue in United KingdomTreaties — Memorandum of Understanding — Whether binding — Relationship with binding provisions in treaty — The law of England

Rahmatullah v. Secretary of State for Foreign and Commonwealth Affairs and Secretary of State for Defence (No 2)

836War and armed conflict — Detainees — Protected persons — Civilians — Prisoners of war — Transfer by Detaining Power to another State — Conditions of transfer — Geneva Conventions III and IV — Memoranda of Understanding — Whether Detaining Power entitled to require return of detainee — Applicant captured in Iraq in 2004 by United Kingdom — Transfer to United States custody — Applicant taken to Afghanistan — Whether sufficiently in control of United Kingdom authorities — Habeas corpus — United States authorities refusing to return applicant to United KingdomRelationship of international law and municipal law — Conduct of foreign relations — Justiciability — Person detained by United States following transfer by United Kingdom — Whether writ of habeas corpus could issue in United Kingdom — Whether refusal of United States to return applicant making further proceedings futile — The law of England

Regina (Al-Saadoon and Another) v. Secretary of State for Defence

538Human rights — Scope of application — Requirement that individual be within the jurisdiction of the respondent State — European Convention on Human Rights, 1950, Article 1 — Application to activities of State outside own territory — Circumstances relevant to determining whether person detained by forces of State outside its territory within jurisdiction of that State — Detention on authorization of territorial sovereign — Obligations of detaining State to territorial sovereignHuman rights — Right to life — Capital punishment — Transfer of detainee to State where death penalty carried out by hanging — Whether customary international law rule prohibiting hanging — Whether European regional customary rule prohibiting transfer where real risk of death penaltyHuman rights — Fair trial — European Convention on Human Rights, Article 6 — Transfer of detainee to face trial in other State — Whether real risk of flagrant breach of Article 6 standardsWar and armed conflict — Occupation — Presence of forces from former occupying power after end of occupation — Iraq — Multi-National Force — Powers — Relationship to Government of Iraq — United Nations mandate — The law of England

Approaches to Resolving Growing Conflicts between Human Rights and International Law Norms in British and European Courts

This paper examines, in detail, the operation of Article 103 of the UN Charter, including in regards to, ius cogens. It analyses the position of the Security Council in relation to the rule of law, and the role of the International Court of Justice and national courts in enforcing it. It analyses the cases of R. (Al-Jedda) v. Secretary of State for Defence [2008] 1 A.C. 332 in the UK Supreme Court, and Kadi and Al Barakaat International v. Council and Commission (joined cases C- 402/05 P and C-415/05 P) in the European Court of Justice, as concrete examples of the resolution of norm conflicts as between Security Council resolutions and human rights treaties. Both cases are praised for drawing a fine balance between the protection of fundamental human rights and the need to limit threats to international security.

R (Gentle and Clarke) v. Prime Minister, Secretary of State for Defence and Attorney-General

624Human rights — Right to life — European Convention on Human Rights, 1950, Article 2 — Substantive and procedural obligations — Relationship between these obligations — Whether State obliged by Article 2 not to commit forces to armed conflict except in accordance with international law — Relationship between European Convention and Charter of the United Nations — Whether procedural obligation under Article 2 entitles relatives of service personnel killed in Iraq to independent investigation into steps taken by Government to determine whether military operation lawfulWar and armed conflict — Resort to force — Enforcement action — Military action in Iraq 2003 — Whether lawful — United Nations Security Council resolutions on Iraq — Resolutions 678 (1990), 687 (1991) and 1441 (2002) — Whether legality of use of force justiciable in an English court — Occupation of Iraq — Security Council resolution 1546 (2004) — The law of England