Crown Act of State and Detention in Afghanistan

The Serdar Mohammed litigation signalled a decisive change in judicial attitude towards scrutiny of extraterritorial executive action in armed conflict. The most significant indicator of a change of judicial attitude in the Serdar Mohammed litigation was the reinstatement of the act of state doctrine in the private law claim in tort. Act of state bars tort claims against the Crown when the Crown acts outside of its territory. The UK Supreme Court characterised act of state as a non-justiciability doctrine. The article argues that the UK Supreme Court exercised extreme deference in its adjudication of the act of state in the private law claim. This deference was then mirrored in the reasoning employed in the public law claim under the HRA, departing from international and domestic standards on detention in armed conflict.