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 [2014] 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.

As a preliminary point, the judgment as a whole ought to be commended for expertly navigating a plethora of complex legal issues and diverse areas of law, including the law of State responsibility, use of force, IHL, and, of course, international and European human rights law. The following commentary slices but one narrow issue out of this composite legal text and does not aim to provide an overarching critical analysis of the entire judgment. In particular, I leave open the question of the relationship between IHL and IHRL, which some will see as confirming the eventual decision in Mohammed even assuming that my analysis is correct (on this, see especially paras. 269–294 of the judgment).

Now to Mr Justice Leggatt’s five reasons:

Firstly, he found it ‘reasonable to assume that if CA3 and/or AP2 had been intended to provide a power to detain they would have done so expressly’ (para. 242). In other words, this is a restatement of the problem acknowledged at the outset: there clearly is no express legal basis in any of the treaty law regulating NIAC. However, this does not mean that such a legal basis may not be identified utilising accepted methods of legal interpretation.

As Professor Ryan Goodman convincingly argued in his 2009 AJIL article, since States have accepted more demanding obligations under the law applicable in IACs than in NIACs, any authority to engage in a particular conduct in IAC should a fortiori be seen as affirming their authority to do so in a NIAC. In his words (at p. 50): ‘Simply put, whatever is permitted in international armed conflict is permitted in non-international armed conflict. Hence, if IHL permits states to detain civilians in the former domain, IHL surely permits states to pursue those actions in the latter domain.’

The lack of an express authorisation to detain might better be seen as a reflection of the States’ general unwillingness to agree on any rules that might be seen as bestowing a degree of recognition on the non-State party to an internal conflict (on which more below in response to the fourth reason), but not as an intention to limit their own capacity to act during an armed conflict.

The second reason advanced by Mr Justice Leggatt related to the distinction between recognition and authorisation. According to the judge, ‘all that seems to me to be contemplated or implicit in CA3 and AP2 is that during non-international armed conflicts people will in fact be detained’ (para. 243, emphasis original). While the law of NIAC recognises the possibility of detention (as evidenced by the language of Common Article 3 and Articles 5 and 6 of AP II), that fact alone does not, for him, bestow the lawful power to detain on the parties to the conflict.

Again, his argument turns on the deficiency of the express language of the treaty provisions. How should, therefore, the absence of an explicit authorisation be understood? It is submitted that there are three main possibilities. The missing legal basis to do X may be conceptualised as (1) a prohibition to engage in X, (2) normatively neutral vis-à-vis X, or (3) a permission to do X.

We may reject the first possibility at the outset. It has never been suggested that acts conducted during armed conflict that lack express authorisation in the law are (eo ipso) prohibited. For instance, there is no express authorisation to kill combatants even in IACs, yet it is not seriously suggested that this would result in its illegality.

So perhaps the law of NIAC is neutral as regards detention? This is the solution proposed by Mr Justice Leggatt. The upshot is that the lawfulness of detention would only be assessed on the basis of applicable domestic law and international human rights law. However, this would lead to the paradoxical situation that the law of NIAC would be prepared to deal with the situation of security internees detained under the IHL paradigm (as is apparent from the text of these three provisions), yet it might happen that they could not be lawfully detained at all. In a situation where the combination of the other applicable bodies of law was particularly prohibitive (a real possibility due to the existence of varied domestic legal systems and regional systems of human rights protection), any detention would automatically amount to a violation of the law. However, it is unlikely that the drafters of the law of NIAC intended to limit themselves in such a way. It therefore seems that the best of the three possible conceptualisations of the applicable provisions is that they provide an implied permission to detain in NIACs.

Thirdly, Mr Justice Leggatt argued that the humanitarian purpose of Common Article 3 and Additional Protocol II is inconsistent with the notion that these provisions are intended to provide a legal power to detain. Let us put aside for a moment the fact that security internment measures sometimes serve to promote humanitarian aims, such as when they are undertaken in anticipation of a terrorist attack to protect the civilian population.

The broader point here is that even norms of NIAC law do not exist in a vacuum. They are part and parcel of international humanitarian law, and each is established—to borrow Professor Michael Schmitt’s words (at p. 798)—on ‘a dialectical compromise between … two opposing forces’: humanity and military necessity. When analysing the object and purpose of the norms providing safeguards to the detained and interned persons, we should keep both of these broader overarching goals in mind. The judgment in Mohammed, however, seems to overemphasise the humanitarian aspect of the compromise to unhinge its military necessity counterpart.Once one takes both parts of the equation into account, the lawfulness of detention becomes less problematic.

Mr Justice Leggatt’s fourth argument was that States in drafting the relevant provisions would not have agreed to establish by treaty a power to detain in a NIAC as it would be ‘anathema’ to accept that a potential rebel group would have the right to exercise a function which is a core aspect of State sovereignty (para. 245). I agree with this analysis in part, but I would draw the opposite conclusion.

As stated above, States are generally reluctant to accept norms that enhance the status of the non-State actors they face in armed conflicts. Nonetheless, as the ICRC Commentary on the Additional Protocols reminds us (at p. 1345), ‘Protocol II and Common Article 3 are based on the principle of the equality of the parties to the conflict’. This is true particularly for AP II provisions concerning the treatment of detainees, as demonstrated by the drafters’ comments after these provisions were adopted in Committee I during the 1974–77 diplomatic conference. The fact that the norms in question apply equally to all conflict parties was both lauded by the supporters of strict equality of NIAC law like France (CDDH/I/SR.40, para. 34) and (begrudgingly) acknowledged by its detractors including Syria and Iraq (CDDH/I/SR.40, paras. 4 and 29, respectively).

Any express authorisation to detain would thus also have had to explicitly resolve the thorny issue of potentially differentiated application to States and non-State actors, which the drafters clearly wanted to avoid. As we know, even the relatively benign phrase ‘parties to the conflict’ had to be purged from the Protocol out of fear that ‘it could have given rise to beginnings of recognition’ (ICRC Commentary, p. 1335). Nevertheless, in line with the underlying principle of equality, States realise that their non-State adversaries will inevitably resort to detention and internment. Accordingly, States sometimes agree on mutually acceptable constraints with a relevant non-State party (as, for example, in the 1991 Memorandum of Understanding agreed in the context of the conflict in Croatia), rather than unrealistically insist that it lacks power to detain.

This view was acceptable to a diverse group of experts convened by the ICRC and Chatham House in 2008 which included military and government lawyers. While the experts did not go so far as to endorse an IHL-based right to detain, according to the report produced after the meeting, they ‘quite easily’ reached a consensus that there is ‘an “authorization” inherent in IHL to intern persons in NIAC’ (at p. 3). The experts concluded (on the basis of a ‘prevailing agreement’ in the group) that this ‘inherent power … to intern’ belongs to ‘any party to a NIAC’ (at p. 4; emphasis added).

Fifthly, the judge observed that:

I do not see how CA3 or AP2 could possibly have been intended to provide a power to detain, nor how they could reasonably be interpreted as doing so, unless it was possible to identify the scope of the power. However, neither CA3 nor AP2 specifies who may be detained, on what grounds, in accordance with what procedures, or for how long. (para. 246).

It is true that the treaty provisions are no more helpful vis-à-vis the identification of procedural standards of NIAC detention than they are with respect to the legal basis for detention. Yet, as Mr Justice Leggatt recognised later in his ruling, the requisite standard may be borrowed from IAC law in the form of justification by ‘imperative reasons of security’ (para. 249). This standard is not only endorsed by the ICRC (as acknowledged in the judgment in the same paragraph), but is also reflected in growing domestic and international jurisprudence concerning situations of NIACs (some of which is identified in Sandesh Sivakumaran’s treatise on the law of NIAC at p. 302 fn 460–461).

In a final point, the judge added that even if such an approach became generally accepted, ‘it would still be necessary to identify procedures by which such determinations are to be made’ (para. 249). This is, however, a slightly surprising comment in the context of a judicial ruling—which is precisely one of the ways how ‘determinations’ are made in respect of applicable legal standards. In other words, the primary responsibility would lie with the military commander, but under certain circumstances this could be further judicially reviewed, thus at least alleviating this particular concern.

The High Court judgment in Mohammed v. MOD is a detailed, articulate, and well-argued legal opinion taking a stand on many of the controversies permeating the debate on detention in the context of extraterritorial military operations. Nonetheless, the position taken with respect to the (non-)existence of a legal basis to detain in NIACs under IHL is, at the very least, not free of doubt and it was my aim to highlight here some of the important countervailing considerations. It is worth adding that the defendant in the case has not been shy about expressing its discontent with the ruling and its desire to appeal it. This story is thus certainly not over yet.