Readers interested in my four scenarios on the relationship between international humanitarian law and international human rights law who want to know how I would decide them, as well as those who’ve read coverage of the Serdar Mohammed v. MoD judgment, might also be interested in two companion articles I recently posted on SSRN. The first is called Extraterritorial Derogations from Human Rights Treaties in Armed Conflict. In a nutshell it argues that states can and should resort to derogations from human rights treaties in extraterritorial situations, for example that the UK could have derogated (but chose not to) from the ECHR with respect to situations in Iraq and Afghanistan. The second piece is entitled The Lost Origins of Lex Specialis: Rethinking the Relationship between Human Rights and International Humanitarian Law and it mainly deals with the genesis of the lex specialis principle and analyses the three different conceptions thereof. The abstracts are below the fold, and comments are as always welcome.
The issue of the relationship between international humanitarian law and international human rights law is often mixed together with other difficult questions of international law. This is not very conducive to conceptual clarity. One way of advancing that clarity is to construct hypotheticals which isolate as many of the various issues as possible, so that we can through a thought experiment better appreciate both how they operate individually and how they interact with one another, and move through them carefully, step by step, while resisting the temptation of introducing further complicating considerations.
In this post I’ll present four such (not so) hypothetical scenarios. These are the quintessential hard cases: they all deal at least with an apparent conflict between IHRL and IHL with regard to the use of lethal force and preventive security detention without judicial review. This is not to dispute that in the vast majority of other situations IHRL and IHL would be complementary. My reason for focusing on the hard cases is that they allow us to address more clearly conceptual questions such as the nature and utility of the lex specialis principle.
Scenario 1: NIAC
State A is a party to both the ICCPR and the ECHR. A non-international armed conflict is taking place on its territory, between the state’s forces and those of a non-state actor, B, an organized armed group. The constituent elements of the NIAC threshold are met beyond any doubt. In an operation during the dead of night, A’s forces kill a dozen of B’s fighters sleeping in a barracks (e.g. by shelling it from a distance), presumably doing so in complete accordance with the applicable IHL rules on targeting. From the facts on the ground, however, it was clear that A’s forces were perfectly capable of capturing B’s fighters had they wanted to do so, with little or no risk to A’s own soldiers. Indeed, B’s fighters sleeping in an adjacent barracks were captured and detained by A as threats to state security for the duration of the NIAC, without criminal charge, and without any judicial review of the legality of the detention.
1) Do the ICCPR and the ECHR apply in principle to the killing and detention of B’s fighters, i.e. did these individuals have human rights vis-à-vis A? Assuming that the answer to this question is yes:
2) Was the killing of B’s fighters lawful under Article 6 ICCPR? Why or why not?
3) Was the killing of B’s fighters lawful under Article 2 ECHR? Why or why not?
4) Was the detention of B’s fighters lawful under Article 9 ICCPR? Why or why not?
5) Was the detention of B’s fighters lawful under Article 5 ECHR? Why or why not?
6) Would a derogation under either treaty be permissible, and if so would the prior existence of a derogation have any impact on the analysis under questions 2-5?
The recent Serdar Mohammed v. Ministry of Defencecase has prompted a number of interesting and insightful posts addressing the issue of whether international humanitarian law (IHL) provides a legal basis for detention in Non-International Armed Conflicts (NIAC) (see, for example, here, here, here and here). This discussion offers an opportunity to address the issue of non-State armed groups, something not discussed in detail so far, with the notable exception of Aurel Sari’s post. In particular, the existing debate with regard to detention raises, more broadly, the issue of the legal authority extended to non-State armed groups party to a NIAC. In this post, I present an argument in support of one of the most controversial issues in this area: the authority of armed groups to establish courts.
Does IHL regulate armed group courts?
As is well known, IHL does not provide an explicit basis for the establishment of courts in NIAC, but rather regulates their operation in the event they are in fact established. In this regard IHL contains two relevant rules. Common Article 3(1)(d) of the Geneva Conventions of 1949 prohibits ‘the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court’, while Article 6 of Additional Protocol II (AP II) requires that ‘[n]o sentences shall be passed and no penalty shall be executed on a person found guilty of an offence except pursuant to a conviction pronounced by a court offering the essential guarantees of independence and impartiality’. Regarding the common Article 3 requirement that a court be ‘regularly constituted’, sources such as the ICRC Customary IHL Study note that a court may satisfy this requirement ‘if it has been established and organized in accordance with the laws and procedures already in force in a country.’ This would appear to support the argument that IHL does not provide a specific legal basis for the establishment of courts (authority is derived from the municipal law in force). At the same time, this reasoning also appears to preclude the convening of armed group courts since domestic law is (almost certainly) unlikely to establish a legal basis for non-State armed group courts. That said, it should be noted that the Pictet Commentary to the Geneva Conventions does not equate the regularly constituted requirement with a basis in municipal law, but rather focuses on the prohibition of ‘summary justice’.
Article 6(2) AP II – which ‘develops and supplements’ common Article 3 – dispenses with the ‘regularly constituted court’ provision, requiring instead that a court offer ‘the essential guarantees of independence and impartiality.’ The ICRC Commentary notes that this was a deliberate act during drafting, as ‘some experts argued that it was unlikely that a court could be “regularly constituted” under national law by an insurgent party’. Read the rest of this entry…
Locating the Legal Basis for Detention in Non-International Armed Conflicts: A Rejoinder to Aurel Sari
Last month, in response to the decision of the English High Court in Serdar Mohammed v. Ministry of Defence (see Marko’s commentary here), we wrote a piece arguing that Mr Justice Leggatt correctly concluded that international humanitarian law (IHL) does not provide a legal basis to detain in non-international armed conflicts (NIACs). We argued (contrary to Kubo Macak) that authorization to detain in a NIAC does not come from IHL, but rather must be found either in domestic law or in other branches of international law. In particular, we explained that the fact that IHL applicable in NIACs recognises that detention will occur and regulates such detention does not mean that this body of law provides an authority to detain in NIACs. Locating the legal basis for detention has significant implications for assessing the legality of detention in a NIAC, under international human rights law (IHRL). Aurel Sari has written an articulate and thought-provoking response to our post. We wish here to respond to the key points of Aurel’s critique of our view.
The Distinction between IAC Law and NIAC Law
Aurel begins by responding to our claim that the regulation of internment by IHL does not necessarily lead to the conclusion that IHL authorises it. However, his main criticism ignores the distinction we draw between the law applicable in NIACs and that applicable in IACs. He argues that to ‘conclude that IHL does not authorize any of the activities it regulates takes the argument too far.’ We agree, and in fact we do not make such a claim. Rather, we consider this issue to reflect one of the key differences between the law of international armed conflicts (IACs) and that of NIACs. As we noted in our post, whereas IHL applicable in IACS specifically authorises combatants to engage in hostilities (Art 43(2) Additional Protocol I) and to intern combatants (Art 21(1) Geneva Convention III) and civilians (Arts 27(4), 42-3 and 78 Geneva Convention IV), in NIACs IHL is silent on all of these issues and instead merely regulates certain aspects of them.
The reason for this difference between the two bodies of law is partly a consequence of the context of the two types of armed conflict. Since IACs concern two or more states, one state or the other is going to be acting on the territory of a foreign state and acting with respect to individuals who are foreign nationals. In these circumstances, only an explicit norm of international law can provide the legal authority for targeting, detention, etc. Without such a rule of international law, these actions would be unlawful as a matter of international law since states do not have authority to take such action on the territory of another state and have obligations to other states with respect to how they treat nationals of those other states.
However, the position in NIACs is very different since such conflicts relate (mainly) to intra-state, as opposed to inter-state, relations. Read the rest of this entry…
For the second year in a row now, the lawyers at the Foreign and Commonwealth Office have opened the doors of one of the FCO’s “fine rooms” to fellow members of the international legal community, judges, journalists, and other government officials to play host to a lecture by an individual with a profound impact on the development of international law.
Harold Hongju Koh, the former US State Department Legal Adviser, now Sterling Professor of International Law at Yale Law School, delivered a great lecture last year. This year, we were immensely pleased to welcome Peter Maurer, the President of the International Committee of the Red Cross to speak on the subject of “War, Protection, and the Law: the ICRC’s Approach to International Humanitarian Law” (see full text here). We thought there was no better person to comment on the challenges facing IHL on the centenary of the beginning of the Great War. As the Solicitor General noted in introducing President Maurer, it is thanks in no small part to the work of the ICRC, that respect for IHL has grown all over the world since the war that was supposed to “end all wars”.
Nevertheless, one hundred years on, the use of chemical warfare against soldiers in those Great War trenches has awful resonance with the chemical weapons attacks on civilians that we have seen so recently in Syria. President Maurer’s speech grappled with a number of such critical challenges for IHL, ranging from the ramifications of overlap between IHL and human rights obligations and gaps in the law on detention, to monitoring and influencing new technologies of warfare.
Our hope is that events such as our Annual Lecture will be a constructive means of fostering discussion and debate in the wider international legal community. This year we were determined to do more to increase the accessibility of our lecture to as many people as possible, particularly academics and law students, who might like a “virtual seat”! We are really pleased to present a video of this year’s lecture, and the lively question and answer session that followed. Please do leave us comments, or join the twitter discussion of the lecture at #lawofwar.
Sorry Sir, We’re All Non-State Actors Now: A Reply to Hill-Cawthorne and Akande on the Authority to Kill and Detain in NIAC
The recent High Court judgment in the case of Serdar Mohammed v. Ministry of Defence  EWHC 1369 (QB) has sparked a lively debate about the authority to detain individuals in the context of a non-international armed conflict (NIAC). In response to a post by Kubo Mačák offering a critical perspective on Mohammed, Lawrence Hill-Cawthorne and Dapo Akande have lent their support to the judgment in arguing that no legal basis for lethal targeting and detention exists in IHL.
Essentially, Lawrence and Dapo advocate an understanding of IHL which conceives it as a purely regulatory framework in the sense that its sole purpose is to impose constraints on how States and non-State actors conduct hostilities, without recognising or conferring any rights on them to engage in such hostilities in the first place. On this view, killing and detention is permissible in armed conflict not because it is authorized by the rules of IHL, but because, and only in so far as, it is not prohibited by other rules of international law. In this post, I intend to demonstrate why this ‘Lotus approach’ to IHL is not compelling.
No Legal Basis under IHL for Detention in Non-International Armed Conflicts? A Comment on Serdar Mohammed v. Ministry of Defence
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  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.
Yesterday the High Court of England and Wales, per Mr Justice Leggatt, delivered a comprehensive judgment in Serdar Mohammed v. Ministry of Defence  EWHC 1369 (QB), holding that the United Kingdom lacks detention authority under international humanitarian law/law of armed conflict with regard to individuals it captures in the course of the non-international armed conflict in Afghanistan, and that any detention of such individuals longer than 96 hours violates Article 5 ECHR, as well as relevant Afghan law. The judgment is on any account a heroic effort, with the single judge grappling with a host of complex, intertwined issues of international law and acquitting himself admirably in the process. Para. 6 contains a summary of the judgment for those who don’t want to read the whole thing.
Here are some of the highlights of the Court’s analysis:
(1) The ECHR applies extraterritorially to any person detained by the UK in Afghanistan.
(2) Derogations under Article 15 ECHR could also be used in an extraterritorial context.
(3) The detention of SM by UK forces in Afghanistan was attributable to the United Kingdom, and not to the UN .
(4) No conflict arose between relevant UNSC resolutions, which did not authorize SM’s continued detention, and Article 5 ECHR, and Article 103 of the Charter was inapplicable.
(5) SM’s detention was not authorized by IHL either, since IHL in NIACs contains no detention authority, and cannot prevail over Article 5 ECHR as lex specialis.
(6) SM’s detention violated Article 5 ECHR. While the detention up to 96 hours was Article 5-compliant, the 110 days that SM spent in UK detention were not.
The Court makes it clear that the position the UK government found itself in is largely its own doing (para. 417 ff). This is exactly right. The government’s own legal advisers informed it of the limited extant legal authority for prolonged detention. The UK government failed to enact its own domestic legislation on detention in Afghanistan, or to come to different arrangements with Afghan authorities. Similarly, the UK government chose not to derogate from the Convention, preferring instead to argue that the Convention does not apply. And now that this strategy has failed (and on several levels), much of what it has been doing is exposed as unlawful.
I imagine that the judgment will be appealed, and we shall we see what happens there. But whatever the appellate courts’ conclusions, I can only hope that their judges will show as much diligence and analytical precision as Mr Justice Leggatt.
Here are the highlights, with some commentary:
When it comes to describing the relationship between human rights and international humanitarian law, the lex specialis principle is frequently taken for granted, as if it has somehow always been there, carved in stone. But what is its actual genesis? By ‘genesis’ I do not mean its ancient history. Yes, it was in the Digest of Justinian. But, honestly, who cares? We have little or no idea of what exactly the lawyers of the Roman and Byzantine empires meant by the expression and how they applied it in practice, and indeed there are several different ways of conceptualizing lex specialis.
My question is rather this: when did we, the community of international lawyers, start using this language to describe the relationship between IHL and IHRL? The timeframe for answering that question is necessarily more limited and easier to manage, since IHRL did not become a part of public international law until after the Second World War. I am obviously too young to have direct experience of this, but my impression has been that during the first fifty years or so of their co-existence very little thought was given to how IHL and IHRL would interact, and when the issue was discussed it was generally not framed in terms of lex specialis. My hypothesis is thus that the term entered common parlance among the international lawyers who have dealt with the issue only after the end of the Cold War, and specifically only after the ICJ’s 1996 Nuclear Weapons advisory opinion, para. 25, when the Court itself first used the term:
In principle, the right not arbitrarily to be deprived of one’s life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities. Thus whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the Covenant, can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself.
To prove or disprove this hypothesis, which is what I am doing in a paper I’m writing right now, I need to do two things. First, I need to establish how the Court itself got the idea to use the lex specialis principle to describe the relationship between the rules of IHL and IHRL. Was it complete innovation on its part? Did it come from the pleadings of some of the participants in the advisory proceedings? Or did it come from generally accepted scholarship on the issue? Second, I need to look at the scholarship itself, specifically those works that examined the issue before the Nuclear Weapons opinion and immediately after it.
The pre-1996 scholarship I will leave aside for the purpose of this post, but from what I’ve read so far there are few, if any references to the lex specialis principle as a solution to normative conflicts between IHL and IHRL (I will obviously very much appreciate it if readers could point me to any such references in scholarship in whatever language). But I’ve read through all of the pleadings in the two nuclear weapons cases (the WHO and GA requests), both written and oral. And out of the 40 or so states that appeared before the Court in the two cases, do you know how many referred to the lex specialis principle? Just one – the United Kingdom.
Among the continuing horrors reported from Syria, it is the use of certain weapons that time and again makes the headlines. While the use of chemical weapons led to an important response from the international community, in recent months attacks with so called ‘barrel bombs’ triggered an international echo. In its latest resolution on Syria the UN Security Council demanded all parties to cease ‘the indiscriminate employment of weapons in populated areas, including shelling and aerial bombardment, such as the use of barrel bombs’. UN Secretary General Ban called these weapons ‘horrendous’, France found that these weapons ‘sought to indiscriminately kill people’, and for the UK the use of these weapons against civilian areas constitutes ‘yet another war crime’ by the Assad regime. Different human rights groups, such as Human Rights Watch or the Syrian Network for Human Rights, report that the use of barrel bombs has caused high numbers of dead, the vast majority of which are civilians. There is no question that war crimes are committed in Syria, especially by the Assad regime. It is, however, less clear to what extent international law prohibits the use of barrel bombs in non-international armed conflicts, and whether their use constitutes a war crime.