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Home Human Rights Archive for category "Deprivation of Liberty" (Page 2)

Some Thoughts on the Serdar Mohammed Appeals Judgment

Published on August 10, 2015        Author: 
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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

Published on August 6, 2015        Author: 
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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

Published on August 5, 2015        Author: 
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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. Read the rest of this entry…

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Breaking: Court of Appeal Affirms Serdar Mohammed

Published on July 30, 2015        Author: 
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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.

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UN Working Group on Arbitrary Detention Adopts Principles and Guidelines on Habeas Corpus

Published on May 5, 2015        Author: 
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A couple of days ago the UN Working Group on Arbitrary Detention adopted an important document, the “Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of His or Her Liberty by Arrest or Detention to Bring Proceedings Before Court,” and submitted the text to the Human Rights Council. The document was developed by the WG at the Council’s request. The project is meant to guide Member States on principles on the judicial review of the lawfulness of detention. The drafting process was completed after extensive consultations with states and other stakeholders. A press release is available here, the full text of the Guidelines and Principle is here, while the submissions by interested states and other actors are here.

This is a rich document dealing with many different issues. Perhaps most interesting – and certainly bound to be the most controversial – are the WG’s conclusions with regard to deprivation of liberty in armed conflict. The WG takes a very strong position regarding the right of habeas corpus in wartime, which it sees as non-derogable in common to a number of other human rights bodies, finding for example that in international armed conflict even prisoners of war have the right of access to a judicial mechanism that would establish the lawfulness of their status-based preventive detention. The WG also takes the view that IHL does not authorize internment in NIACs, and that internment would only be lawful if it is prescribed by domestic law, after a derogation in a public emergency. Some of the most important paragraphs are reproduced below the fold.

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IHL Does Authorise Detention in NIAC: What the Sceptics Get Wrong

Published on February 11, 2015        Author: 
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As Serdar Mohammed v Ministry of Defence hits the English Court of Appeal, the blogs have lit up with comments, criticisms and predictions. In recent posts published at Just Security and Opinio Juris, Ryan Goodman, Kevin Jon Heller and Jonathan Horowitz (see here, here and here) have joined with Marko Milanovic and Lawrence Cawthorne-Hill and Dapo Akande (see here, here and here) in defending the view that IHL does not provide States with a legal authority to detain persons in a non-international armed conflict (NIAC). In this post, we wish to outline our challenge to this proposition as mistaken in law and undesirable as a matter of policy (for a more detailed version of our argument, see our recent article in International Law Studies here).

The nature of the law of war

In Serdar Mohammed, Mr Justice Leggatt relied on five arguments to deny the existence of a legal authority to detain under IHL in NIACs (paras 228–251). Despite his meticulous analysis, we do not find the reasoning persuasive. None of the five arguments exclude the possibility that a legal basis for detention exists under customary international law. Even if correct, they establish only the absence of an implicit legal basis under Common Article 3 (CA3) of the Geneva Conventions of 1949 and the relevant provisions of Additional Protocol II of 1977 (AP II). However, Leggatt J’s reading of these provisions is too narrow. In particular, it misconstrues the nature and purpose of IHL as a body of law.

According to Leggatt J, the purely humanitarian purpose pursued by CA3 and AP II is inconsistent with the idea that they were designed to confer a legal power of detention (para. 244). Although humanitarian imperatives have played a central role in the development of modern IHL, they have never been its sole preoccupation. Its other purpose has always been the regulation of hostilities. Focusing on the humanitarian aspects of IHL at the expense of its warfighting dimension ignores its fundamentally dual character. In particular, it fails to appreciate the role played by the principle of military necessity. As Nils Melzer has explained, the ‘aim of military necessity as a principle of law has always been to provide a realistic standard of conduct by permitting those measures of warfare that are reasonably required for the effective conduct of hostilities, while at the same time prohibiting the infliction of unnecessary suffering, injury and destruction’ (Melzer, Targeted Killing in International Law, 279–280). The principle therefore serves both a restrictive and a permissive function. Read the rest of this entry…

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The Report of the Brazilian Truth Commission: Late Truth without Justice?

Published on January 19, 2015        Author: 
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On 10 December 2014, almost 30 years after the Brazilian military dictatorship (1964-1985) had come to an end, the “National Truth Commission” (“Comissão Nacional da Verdade”, CNV), established on 18 November 2011, presented its Final Report following an investigation that lasted two years and seven months (from May 2012 to December 2014). The Report comprises three volumes with a total of 4400 pages. The CNV consisted of seven members (“Conselheiros”)*, who were supported by over 200 research staff. The Report describes the human rights violations committed between 1946 and 1985 in great detail, listing both perpetrators and victims. The third section of the first volume of the report lists as the four most important violations of human rights: (1) unlawful and arbitrary detentions; (2) systematic torture using physical and psychological methods (proven for at least 1843 of an estimated total of over 20,000 victims) as well as rape and sexual assault; (3) summary, arbitrary and extrajudicial executions or other forms of state murder; (4) enforced disappearance and concealment of the victims’ bodies. The report ends with 29 recommendations and four conclusions which are translated into English for the first time with this post (see appendix below). This post provides an brief overview of the report as well as an evaluation of the work of the CNV. On the whole, the report constitutes a laudable, albeit limited effort to cope with Brazil’s dictatorial past and it may hopefully contribute to changing the still dominant authoritarian mentality in the country and strengthen its democratic institutions. 

Overview

The first volume of the Report has 18 chapters and was written jointly by all members. Here the CNV provides a detailed description of those human rights violations considered to be particularly significant due to their cruelty; these were committed mainly between 1964 and 1985 under the rule of the military junta who had carried out the 1964 coup d’état. The CNV describes the dictatorship’s functioning and bureaucratic structure, including its many repressive agencies (and the various police services (“Polícia Civil, Militar e Federal”), which made the systematic commission of human rights violations possible in the first place. Apart from the extremely powerful national secret service (“Serviço Nacional de Informação”, SNI), which reported directly to the president, each ministry had its own secret service. The Commission also details the close cooperation between the militaries of the Cono Sur (Argentina, Brazil, Bolivia, Paraguay and Uruguay) as part of so-called Operation Condor and the training of the Brazilian military by foreign agencies, particularly by the “United States Army School of the Americas”.

The second volume contains Commission members’ individual contributions on human rights violations against particular groups and institutions (including members of the military (!), workers, farmers, the Church, indigenous peoples, universities, homosexuals) and on business people’s collaboration with the dictatorship. Read the rest of this entry…

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A Few Thoughts on Hassan v. United Kingdom

Published on October 22, 2014        Author: 
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Lawrence Hill-Cawthorne has written an excellent analysis of the European Court’s recent Hassan v. UK judgment, which I fully subscribe to and have nothing substantive to add. Rather, I wish to use this post to outline some thoughts on the practical impact of Hassan, its bottom line and possible future influence.

(1) When it comes to the extraterritorial application of the Convention, the Court has now reaffirmed that de facto physical custody will ipso facto constitute Article 1 jurisdiction, within the personal model of jurisdiction as authority and control over an individual. The Court did not seem to put any limits on this principle (and rightly so), not even the vague idea of ‘public powers’ that it invented in Bankovic and imported into the personal model of jurisdiction in Al-Skeini (cf. the Court’s finding in Hassan, para. 75 that the events took place before the UK assumed responsibility for the maintenance of security in South East Iraq, which was the basis for the ‘public powers’ in Al-Skeini). Similarly, the Court (again, rightly) focused on factual control, disregarding some of the formal arrangements under a memorandum of understanding between the UK and the US (para. 78), and finding that ‘Tarek Hassan fell within the jurisdiction of the United Kingdom from the moment of his capture by United Kingdom troops, at Umm Qasr on 23 April 2003, until his release from the bus that took him from Camp Bucca to the drop-off point, most probably Umm Qasr on 2 May 2003 ‘ (para. 80).

The bottom-line of this approach is that whenever the military forces of a European state capture any individual, no matter where that individual is located (note how the Court again, like in Al-Skeini, explicitly avoided ruling whether the territory of South Iraq was under UK control for the purpose of the spatial conception of jurisdiction (para. 75)), the Convention will apply by virtue of the personal conception of Article 1 jurisdiction as authority and control over individuals. The Convention will apply on this basis not only to detention operations in Afghanistan, but also to situations such as the French intervention in Mali, the capture of Ukrainian soldiers by Russian forces in Crimea, etc. This is fully consistent with the English High Court’s Serdar Mohammed judgment, which rejected the UK government’s attempts to confine Al-Skeini to the facts of Iraq (for our previous coverage of Serdar Mohammed, see here).

In short, European soldiers carry the ECHR with them whenever they engage in capture operations. Military legal advisers and other officials will hence inevitably have to take the Convention into account (as many have been doing anyway). Use of force operations are not so comprehensively covered – at least for the time being.

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The Grand Chamber Judgment in Hassan v UK

Published on September 16, 2014        Author: 
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The eagerly-awaited Grand Chamber judgment in the case of Hassan v UK has now been released, and its importance for anyone interested in extraterritoriality, detention and the relationship between international humanitarian law (IHL) and international human rights law (IHRL) cannot be overstated. For the first time in its history, the Court has explicitly offered its view on the interaction between IHL and IHRL and the operation of the Convention, particularly the right to liberty, in the context of an international armed conflict.

A good overview of the facts of the case and the Court’s judgment can be found here, and they will not be repeated in this post. Instead, I want to offer some initial thoughts on the Court’s reasoning with regard to Article 5 ECHR and, more specifically, its approach to treaty interpretation.

The question before the Grand Chamber was whether the internment of the applicant’s brother, which appeared to conform with the Third and Fourth Geneva Conventions, could be considered consistent with Article 5 ECHR, notwithstanding the absence of any derogation by the UK. At a very general level, the Court effectively had two options here. On the one hand, it could have followed the path it appeared to be laying in its previous case-law, particularly in Al-Skeini and Al-Jedda, and hold that, where jurisdiction exists and where no lawful derogation has been made, the State remains bound to honour its obligations under the ECHR as ordinarily interpreted. Had the Court taken this approach, the Contracting States may eventually have conceded defeat and begun derogating in extra-territorial contexts. (Incidentally, the Court continued to avoid explicitly engaging with the permissibility of extra-territorial derogations.) Instead, the Court adopted the alternative approach, interpreting the ECHR so as to leave room for the broader powers that States have under IHL. Thus, it effectively read into Article 5(1) ECHR an extra permissible ground for detention where consistent with the Third and Fourth Geneva Conventions, and it read down the requirement of habeas corpus in Article 5(4) to allow for the administrative forms of review under the Fourth Geneva Convention.

Let’s begin with a few, in my view, positive points about the Court’s approach here. First, and perhaps most importantly, the Court rejected the UK’s principal argument that IHL as the lex specialis precluded jurisdiction arising under Article 1 ECHR (para 77). To have followed this would effectively have been to displace the entire Convention where IHL applies. Instead, the Court adopted a more nuanced, case-by-case approach which looks at the specific right at issue. This enables the Court to retain its oversight function by assessing the legality of the actions of Contracting Parties through the prism of IHL.

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Developing the Law of Non-International Armed Conflict: A View of the Harmonization Project

Published on September 12, 2014        Author: 
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Editor’s Note: This post is part of the joint series of posts hosted by EJIL:Talk!, Lawfare and Intercross (blog of the International Committee of the Red Cross) and arising out of the Transatlantic Workshop on International Law and Armed Conflict held in Oxford this summer.

This post is a response to Professor Sarah Cleveland’s post on the Columbia-based Harmonization Project that Professor Cleveland and Sir Daniel Bethlehem are leading. That project explores the potential for applying the law of international armed conflict (IAC) in non-international armed conflicts (NIACs), as a means of developing the law applicable in the latter. The conclusion of the project is that the large majority of the rules applicable in IACs can be transplanted into NIACs without amendment and that this should be done by States either multilaterally or via unilateral declarations.

A detailed, rule-by-rule consideration of the degree to which parity between the law of IAC and NIAC is practicable is a very useful endeavour. Indeed, historically this has been the method by which the law of NIAC has developed. It is clear why this should have been the case. When the first international humanitarian law (IHL) treaties were adopted in the mid-nineteenth century, international law was still, by and large, a law governing inter-State relations. Matters that did not directly engage such relations, including NIACs, were thus generally excluded. Customary rules did of course develop to govern certain NIACs, such as the doctrine of belligerency, but these often applied only where another, non-party State was affected by the conflict.

As international law expanded to include the regulation of purely intra-State matters (reflected in human rights instruments, as well as the Genocide Convention, adopted in the aftermath of the Second World War), this basis for marginalising NIACs began to fall away. Rules traditionally applicable only in IACs could now move over into NIACs. And indeed this is what has happened: common Article 3 to the 1949 Geneva Conventions and Additional Protocol II were based on the law of IAC. This is also true of the customary rules recognised by the ICTY and ICRC.

It is therefore only natural that we should look to the law of IAC in developing the law of NIAC. This post, however, will offer some words of caution in adopting this method of humanising NIACs. In particular, it will be argued that both general and specific arguments militate against this supposedly self-evident means by which to develop the law of NIAC.

General Concerns

The Harmonization Project declares its goal as being to build upon current obligations in NIACs—it is limited to IHL and does not seek to make a claim regarding the relationship between IHL and human rights law. However, it seems to me that one cannot avoid such questions when considering proposals for developing the law of NIAC. Indeed, if one’s goal is further to humanise NIACs (as the Harmonization Project’s seems to be) then one must tread carefully in proposing the extension of IHL in toto to NIACs. As David Kretzmer has shown, far from increasing protections, this method could in fact undermine existing protections. Read the rest of this entry…

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