As mentioned earlier, the mandate of ISAF was to assist. In addition, the UNSCRs expressly affirmed the sovereignty, independence and territorial integrity of Afghanistan and recognised that the responsibility for providing security and law and order throughout Afghanistan resided with the Afghan authorities. In these circumstances, and in circumstances where (as discussed in part IV of this judgment) ISAF had no power under Afghan law to detain individuals other than to hand them over immediately to the police or a prosecutor, I can see no reason to interpret the authorisation to “take all necessary measures” to fulfil the ISAF mandate as permitting detention for any longer than was necessary to deliver them to the Afghan authorities.
221. Nor can I see any reason to interpret that authorisation as linkedin database permitting detention by ISAF which violated international human rights law. In ascertaining the scope of the relevant authority, it seems to me that I must take into account the principles endorsed by the European Court in Al-Jedda v United Kingdom (2011) 53 EHRR 23. Section 2(1) of the Human Rights Act requires me to do so in circumstances where the opinion of the European Court is relevant to the question that I have to determine concerning the scope of the claimant’s Convention rights. As mentioned, the European Court considered there to be a presumption that, unless it uses clear and unambiguous language to the contrary, the Security Council does not intend states to take measures which could conflict with their obligations under international human rights law. In the Al-Jedda case the European Court did not regard even the language used in UNSCR 1546 and the letter from Mr Powell annexed to it which expressly referred to internment as sufficiently clear and unambiguous to override this presumption. In the resolution applicable in the present case there is no express reference at all to internment or detention. Although I consider that a power to detain is implied, there is nothing in the language of UNSCR 1890 which demonstrates – let alone in clear and unambiguous terms – an intention to require or authorise detention contrary to international human rights law.
Accordingly, the judge concluded that detention up to 96 hours, per the ISAF detention policy, for the purpose of transferring the detainees to Afghan custody, was included within the mandate, but that longer detention for the purpose of intelligence-gathering, under the UK’s own detention policy, was not (paras. 224-227). No conflict thus arose between UNSC resolutions and Article 5 ECHR, and Article 103 of the Charter was inapplicable.