Deprivation of Liberty

Page 7 of 7

Filter category

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

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 of whether international humanitarian law (IHL) provides a legal basis for detention in non-international armed conflicts (NIACs). Whilst Kubo also focuses on this issue in his post, we will take the opposite view to him, and thus will argue that Mr Justice Leggatt correctly concluded that IHL does not contain a legal basis to detain in NIACs. To be clear, our argument is not that detention in NIACs is necessarily unlawful. The argument is simply that authorization to detain in a NIAC cannot be found in IHL, but must rest elsewhere, principally in domestic law (either of the state that detains or of the state on whose territory the detention occurs). Exceptionally, the authorization to detain may…

Read more

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…

Read more

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

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…

Read more

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

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…

Read more

The UN Working Group on Arbitrary Detention: Obaidullah v United States and the Mainstream of International Law

Eirik Bjorge is the Shaw Foundation Junior Research Fellow at Jesus College, Oxford. The UN Working Group on Arbitrary Detention (WGAD) is the only body in the international human rights system with a specific mandate to receive and examine cases on arbitrary deprivation of liberty. In this capacity it has, since 1991,…

Read more