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…