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The European Convention on Human Rights in Non-International Armed Conflict – Revisiting Serdar Mohammed

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The UK Government’s re-commitment in May to replacing the Human Rights Act (HRA) immediately followed the Supreme Court’s further hearings on one of the more controversial cases under the Act – the Serdar Mohammed claim against the Ministry of Defence (on which additional hearings are expected later this year). The claimant, who on the assumed facts was a Taliban commander detained by the UK military in Afghanistan for 110 days in 2010, alleges a breach of his right to liberty under the European Convention on Human Rights (ECHR).

As readers will recall, the lower courts upheld this claim, prompting controversy in the press and in academia. Preventative detention (or “internment”) of the enemy is widely regarded as an essential incident of armed conflict. The suggestion that the ECHR prohibited the UK from detaining a Taliban commander to prevent his engagement in hostilities against British forces raised obvious concerns about the application of the ECHR in armed conflict, also fuelling further criticism of the HRA.

Since international humanitarian law (IHL) norms designed for the context of hostilities do not prohibit internment in non-international armed conflicts (NIACs) like the Afghan conflict in 2010, much of the legal debate focused on the content of these norms and their relationship with the ECHR. The High Court decision, declining to use IHL to override the ECHR, was criticised as “an outright rejection of the applicability of IHL to the question of who may be detained for what reasons and following which procedure” in NIACs.

Rather than rehearsing the extensive debates (see a small sample here and here) over whether IHL norms authorise detention in NIACs, this post challenges an assumption about the interpretation of the ECHR which underlies the arguments raised by both parties to the claim. Its focus is on a specific provision of the ECHR and its application to situations like that in which the claimant was detained – state participation in NIACs outside their own territory (extra-territorial NIACs).

The result is an alternative approach, based on a context-sensitive interpretation of the ECHR complemented by IHL, which helps address the concern that the ECHR and HRA are inherently unsuited to conditions of armed conflict. (more…)

Some Thoughts on the Serdar Mohammed Appeals Judgment

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In this post I’d like to add a few thoughts on the recent Court of Appeal judgment in Serdar Mohammed, that we already covered on the blog last week (here and here). The case is now heading to the UK Supreme Court, and may also eventually end up in the European Court of Human Rights – although Strasbourg will be looking carefully at the Supreme Court’s judgment even if the case doesn’t find its way to it.

First off, I think everything that can be said about the ‘big issue’ of authority to detain in NIAC has already been said; those already committed to either view are not going to be dissuaded by some novel argument. For my part, I only wish to note that after the Court of Appeal’s (unanimous!) judgment it looks increasingly unlikely that the Supreme Court will overturn the finding of the lower courts (although that of course may still happen), especially bearing in mind the rigour and detail of these lower judgments. It is very difficult for any court to essentially make up rules (in reasoning by implication/analogy/structure or whatever) on who precisely can be detained in NIACs, for how long and under what exact process, in the absence of any meaningful legislative guidance. This is not a gap that most judges would feel comfortable in filling, especially when easy analogies to IACs or (much worse, between targeting and detention) break down.

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The UK Court of Appeal in Serdar Mohammed: Treaty and Customary IHL Provides No Authority for Detention in Non-international Armed Conflicts

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Last week’s judgment in Mohammed v. Secretary of State for Defence is rich in analyses and observations concerning detention in non-international armed conflicts (NIACs). One of the key issues assessed concerns the power to detain in NIACs under IHL.

The Secretary of State’s position on this point commenced with a challenge to traditional classifications of armed conflict, contrasting purely internal conflicts with armed conflicts between two States (para 168). It was contended that the legal position concerning the authority to detain in a NIAC now reflects a more complex factual position than that captured under traditional classifications. A third classification must now be recognized: ‘internationalised’ NIACs. This echoes the ICRC’s Opinion Paper on internment, which speaks of ‘NIACs with an extraterritorial element’, in which “the armed forces of one or more State, or of an international or regional organization, fight alongside the armed forces of a host State, in its territory, against one or more organized non-State armed groups” (page 7).

To paraphrase, ‘if it looks and feels like an international armed conflict, let us apply IHL rules on international armed conflicts by analogy’. This is a dangerous approach that the Court of Appeal carefully avoided, instead focusing on its proposed implications.

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The Authority to Detain in NIACs Revisited: Serdar Mohammed in the Court of Appeal

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As the English Court of Appeal breaks for the summer vacation, scores of international lawyers are about to descend on one of its latest decisions: Mohammed v Secretary of State for Defence; Rahmatullah and Ors v MoD and FCO [2015] EWCA Civ 843. In this 109-page long judgment, the Court upholds the conclusion reached at first instance by Leggatt J that British armed forces participating in ISAF lacked the legal authority under international law to detain suspected insurgents captured in Afghanistan.

The implications of Serdar Mohammed are considerable. The case raises difficult questions about the place the European Convention on Human Rights (ECHR) occupies in the international legal order and, more broadly, about the relationship between international human rights law and international humanitarian law (IHL). Those who have followed this debate will recall that we were not convinced by Leggatt J’s reasoning on these points (see here, here and here). In so far as it upholds his main conclusions, we also find ourselves in disagreement with the judgment now delivered by the Court of Appeal. Rather than rehearsing our arguments on the underlying issues in full (see in detail here), in this post we would like to briefly comment on those aspects of the Court’s decision which, in our view, take the debate forward and those which do not. (more…)

Breaking: Court of Appeal Affirms Serdar Mohammed

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Breaking news: today the English Court of Appeal  unanimously affirmed Leggatt J’s judgment in Serdar Mohammed v. MoD, finding that IHL does not contain authority to detain in non-international armed conflicts. Full (and very lengthy) judgment available here; our earlier coverage is here. Happy to report that some of our earlier posts (three I think) were cited by the Court. Obviously I haven’t yet read all of the decision, but we will have plenty of commentary in the days to follow.  I imagine an appeal to the Supreme Court is virtually inevitable.

EJIL: Live! Special Episode on the Serdar Mohammed Judgment

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In additional to the regular episodes of our EJIL: Live! podcast, which follow each issue of the Journal, we will also publish special episodes which deal with recent events or current issues. The first such episode is now live – a conversation between Guy Sinclair, Dapo Akande and me on the Serdar Mohammed v. Ministry of Defence [2014] EWHC 1369 (QB) judgment, dealing with various issues regarding the lawfulness under the ECHR of the preventive detention of suspected terrorists in Afghanistan. For our previous coverage of that case, see here, here, here and here.

No Legal Basis under IHL for Detention in Non-International Armed Conflicts? A Comment on Serdar Mohammed v. Ministry of Defence

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On any account of the events that transpired one early April morning four years ago in northern Helmand in Afghanistan, the plight of Mr Serdar Mohammed is not to be envied. For reasons that are still in dispute, he was captured by the UK armed forces close to his home. Shot at, bitten by a military dog, and finally caught, he was brought into UK custody on suspicion of being an insurgent, perhaps even a Taliban commander. In the end, he was detained on British military bases for over 100 days before being handed over to the Afghan authorities.

Mr Mohammed brought a claim before the High Court of Justice of England and Wales for unlawful detention, seeking compensation from the UK government. In Serdar Mohammed v. Ministry of Defence [2014] EWHC 1369 (QB), a judgment delivered last Friday, Mr Justice Leggatt decided that Mr Mohammed’s detention after the initial 96 hours violated Article 5 of the European Convention on Human Rights and that he was therefore entitled to compensation.

The judge openly says at the outset of the ruling that it is ‘a long judgment which discusses many issues and arguments’ (para. 2). Unlike Marko’s excellent post, which provides a more comprehensive overview of the judgment, my text takes a closer look at one of the key issues in the judgment only. This is the question of lawfulness of detention of persons in non-international armed conflicts under international humanitarian law (IHL), summarised by Marko in section 5 of his post.

It is well known that while the law of international armed conflict (IAC) provides an express legal basis for the detention of civilians in Articles 42 and 78 of the Fourth Geneva Convention, there is no counterpart in the treaty norms regulating non-international armed conflict (NIAC). The MOD argued that a power to detain is nonetheless implicit in Common Article 3 and Additional Protocol II. Although Mr Justice Leggatt acknowledged academic opinion in support of the MOD view, quoting extensively from texts written by Jelena Pejić and Jann Kleffner (see para. 240), he eventually came down against it on the basis of five very articulate reasons (paras. 241–251).

I will not revisit the academic debate on this topic (for which, in addition to the texts quoted in the judgment, see, e.g., here, here, or here), but rather subject the specific reasons advanced by Mr Justice Leggatt to somewhat closer scrutiny. It appears to me that even though the reasons are very well made, there are strong considerations not reflected in the judgment, which militate in favour of the opposite view.

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Active Hostilities and International Law Limits to Trump’s Executive Order on Guantanamo

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In his State of the Union speech on January 30, 2018, U.S. President Donald Trump announced his signing of a new executive order aimed at keeping open the U.S. detention facility at Guantanamo Bay, Cuba, as well as approving its repopulation. This post considers how the law of war governing detention in armed conflicts constricts the ability of the U.S. to hold persons in military prisons at Guantanamo in the manner suggested by this new order.

Formally speaking, Trump’s executive order repeals a critical portion of President Obama’s 2009 order calling for the Guantanamo prison site to be closed “as soon as practicable, and no later than 1 year from the date of this order.” The 2018 order also provides that the U.S. may “transport additional detainees” to the facility “when lawful and necessary to protect the nation.”

On the one hand, this executive order simply makes explicit what has already been President Trump’s de facto Guantanamo policy since taking office. While the Obama Administration worked to reduce the Guantanamo population considerably, resettling 197 of the 242 detainees remaining at the facility, President Trump has resettled none — not even five detainees cleared for release by the Department of Defense prior to Trump’s taking office. On the other hand, the order reflects a radical shift in policy. (more…)

A Trio of Blockbuster Judgments from the UK Supreme Court

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This morning the UK Supreme Court delivered three important judgments dealing with various claims alleging wrongful acts by the UK when fighting international terrorism (UK Supreme Court page; Guardian news report). In Belhaj and Rahmatullah No. 1 the Court unanimously dismissed the Government’s appeal, and found that the claim against the UK for its alleged complicity in torture and mistreatment of the claimants was not barred by rules of state immunity and the foreign act of state doctrine (press release; judgment). In Rahmatullah No. 1 and Mohammed the Court unanimously allowed the Government’s appeals, holding that, insofar as the respondents’ tort claims are based on acts of an inherently governmental nature in the conduct of foreign military operations by the Crown, these were Crown acts of state for which the Government cannot be liable in tort (press release; judgment). Finally, and perhaps of greatest interest to most of our readers, in Al-Waheed and Serdar Mohammed the Court, by 7 votes to 2 in a set of very complex judgments, held that British forces had power to take
and detain prisoners for periods exceeding 96 hours if this was necessary for imperative reasons of security, but that its procedures for doing so did not comply with ECHR article 5(4) because they did not afford prisoners an effective right to challenge their detention (press release; judgment). We will be covering these judgments in more detail soon.

I have only had the time to read Serdar Mohammed, which I am yet fully to digest, but here are some initial thoughts (we have of course extensively covered this case on the blog before). The two key judgments are those of Lord Sumption for the majority and Lord Reed for the minority; I must say that by and large I incline towards the latter. I am also troubled by some of the ipse dixit, rather casual references in the judgments of the majority justices to the lex specialis principle; the supposedly restrictive original intentions of the drafters of the ECHR with regard to its application extraterritorially and in armed conflict, which are in reality completely unknowable; similarly casual constructions of coherent narratives of a very messy field that confirm one’s own predispositions (e.g. that in Al-Skeini the Strasbourg Court unprecedentedly expanded the reach of the Convention to extraterritorial armed conflicts, when one could just as easily say that in Bankovic the Court unprecedentedly restricted the Convention’s reach); or the supposed unavailability of extraterritorial derogations, on which see more here.  That said, the judgments are thoughtful and rigorous even when one might disagree with them, which brings me to the Court’s main findings.

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When Does the Use of Force Against a Non-State Armed Group trigger an International Armed Conflict and Why does this Matter?

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Over at Just Security (see for example herehere and here) and also at Opinio Juris (see here and here) there has been a very interesting discussion on whether aspects of the conflict in Syria should be regarded as international armed conflicts (IACs) rather than simply non-international armed conflicts (NIACs). These discussions have followed on from the release of the ICRC’s revised Commentary to the First Geneva Convention (GCI) of 1949 in which the ICRC, in its commentary to Common Article 2 dealing with international armed conflicts (one between the High Contracting Parties to the GCs), states that where a state uses force against a non-state group on the territory of another state without the consent of the territorial state it would amount to an international armed conflict between the intervening state and the territorial state. So as Adil Haque pointed out on EJIL:Talk! in April, the ICRC position would mean that the US (and other states using force in Syria without the consent of the Syrian government) is involved in an IAC in Syria. Adil has explained his support for the ICRC position in posts on this issue on Just Security (see here and  here). Others like Terry Gill, Sean Watts and Kenneth Watkin have disagreed (see here, here, here, and here).

I am on record as being a supporter of the position that the ICRC has now come to. I wrote a piece (available here on SSRN) many years ago, which was part of a major study on Classification of Conflicts in which I say precisely what the ICRC has now said (and I’m delighted that the ICRC’s revised commentary cites that work). I am not going to repeat my arguments in this post and they can be found here. In summary, my view is that an international armed conflict is a conflict between states, and a conflict arises between states when one state uses force against another state. What does it mean for a use of force to be against another state? It means simply that the force is used on the territory of the other state without its consent. Note that this says nothing about whether that use of force is lawful or unlawful under the jus ad bellum. Such non-consensual uses of force may or may not be lawful under that body of law, and the application of IHL remains independent of the legality of the use of force under the jus ad bellum. It is also important to remember that saying that there an IAC between the two states says nothing about whether there is a NIAC between the state using force and the non-state group. There will, in many cases, be such a NIAC. This will raise questions about the relationship between the two conflicts: the IAC and the NIAC. However, the notion of mixed conflicts is by no means unusual or confined to this context. In the Nicaragua case the ICJ noted that it was addressing a situation where there was an IAC and a NIAC. The same was also true with regard to the conflicts in the former Yugoslavia or before that in Vietnam, which were also mixed.

In this post I wish to concentrate on why it might matter whether a use of force directed at a non-state actor on the territory of a non-consenting state is an IAC or a NIAC. What exactly would turn on this question. Here I provide a general response to that question rather than one directed particularly at answering the question (which has been the subject of some of the commentary on Just Security and Opinio Juris) of what would turn on whether the US is involved in an IAC in Syria. Some of the points below would be relevant for the US in that particular conflict, others might not be.

Here are a few reasons why it might make a difference whether a state using force on the territory of another without  the consent of the other is involved in an IAC (in addition to a NIAC, if one already exists). (more…)