Deprivation of Liberty

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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

May 9, 2014

The recent High Court judgment in the case of Serdar Mohammed v. Ministry of Defence [2014] 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.

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Does IHL Provide a Legal Basis for Detention in Non-International Armed Conflicts?

May 7, 2014

In their excellent posts on Serdar Mohammed v. Ministry of Defence [2014] EWHC 1369 (QB), both Kubo Mačák and Marko recognise the importance and hugely impressive analysis of Mr Justice Leggatt's judgment. We will not reiterate the coverage of the judgment. Rather, we wish to focus on one part of it, that is, the question…

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

May 5, 2014

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…

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High Court Rules that the UK Lacks IHL Detention Authority in Afghanistan

May 3, 2014

Yesterday the High Court of England and Wales, per Mr Justice Leggatt, delivered a comprehensive judgment in Serdar Mohammed v. Ministry of Defence [2014] 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…

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The Extraterritorial Seizure of Individuals under International Law – The Case of al-Liby: Part II

November 7, 2013

In this second of two posts I intend to continue the analysis of the extraterritorial seizure of individuals under international law, with a particular focus upon the recent arrest, detention and now trial of the al-Qaida leader al-Liby by the United States, who was wanted in connection with the bombings of the US embassies in Kenya and Tanzania…

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