Some Thoughts on the Serdar Mohammed Appeals Judgment

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.

Second, this is all the more the case because there is nothing inherently impracticable or unworkable about the result that the lower courts have reached. IHL in NIAC does not prohibit detention. It is simply that positive authority for such detention, including the exact grounds and review mechanisms, must be found elsewhere, primarily in domestic law. The UK government lost the case precisely because it had no law of its own on the matter, and because what it did was contrary to domestic Afghan law (and ISAF policy) as well. All the UK has to do in order to resort to detention in NIACs is to either pass its own legislation or persuade its local allies to do so. That may be difficult to pull off politically, but from a judicial perspective does not seem to be too onerous a demand.

Third, the whole practicality point is reinforced by the government’s litigation strategy before the Court of Appeal. Unlike before the High Court (and unlike say Aurel and Sean’s argument), the government all but conceded that no positive authority to detain existed in ‘normal’, purely internal NIACs (see paras. 168 ff). In other words, if say Scotland tried to secede from the UK by armed force, the UK government would have to pass domestic legislation to detain Scottish nationalist rebels. It in special, ‘internationalised’ NIACs outside UK territory that the government is saying that it has inherent detention authority by analogy to IACs. This is in my view a completely arbitrary distinction, which actually exposes the weakness of the authority argument. And, as the Court correctly found, a close scrutiny of the evidence for a particular customary power in such special NIACs doesn’t pass muster. (I do have a further terminological quibble, in that the Court used the term ‘internationalised’ NIAC for these types of NIACs with an extraterritorial or cross-border element. As I have argued elsewhere, the term ‘internationalization’ is best used to denote the transformation of a prima facie NIAC into a proper IAC, e.g. by virtue of the Tadic overall control test, which is not what Afghanistan was anyway; using it otherwise creates a significant potential for conceptual confusion).

Fourth, I don’t find the Court’s approach to the interpretation of Security Council resolutions and Article 103 of the Charter to be entirely persuasive. In particular, the interpretative presumption (applied in Al-Jedda) that the SC does not intend to abridge human rights absent a clear statement to the contrary is not some ECHR-specific, external constraint on the Council, but should be seen a general principle also flowing from the human rights provisions of the UN Charter, equally applying to all states, ECHR parties or not. But since this point was of little actual relevance in the case I shan’t belabour it further.

Fifth, with regard to a possible domestic UK statute, the Court notes (at paras. 10(ii) and 363(iv)) the possibility of adopting legislation which ‘might have taken the form of a bar of specified claims by foreign nationals or have provided for specific authority for HM armed forces to detain in operations overseas. Both of these were accepted before us on behalf of SM to be possibilities. The latter reflects the approach taken by the United States.’ I see nothing problematic in the latter option, and this is in fact what the UK Parliament should proceed to do (while also considering the possibility of enabling extraterritorial derogations from the Convention, that curiously gets little mention in the judgment). The former option, however, is downright perilous, at least as far as Convention claims are concerned. It would be exceptionally difficult to justify discrimination on the basis of nationality in the security detention context (cf. the Belmarsh case; see also here and here). It would also likely be a losing strategy in the long run, especially bearing in mind the number of people with (dual) UK nationality fighting for Isis or other terrorist groups.

Sixth, with regard to extraterritoriality – it is true, as Sean and Aurel note in their post, that the Court expressed some significant reservations with respect to the more expansive approach to the extraterritorial application of the Convention post Al-Skeini (see paras. 8, 93 ff). Those reservations seem to be twofold: first, that the Strasbourg Court’s jurisprudence is internally inconsistent and that they overruled earlier cases sub silentio without clearly explaining why; and second, that applying human rights in armed conflict poses serious practical difficulties. Both of these concerns are real and valid. But we must also be aware that we would have to work out all of these difficult questions of how human rights apply on the battlefield even in intra-territorial situations – cf. the horrible position Ukraine finds itself in today. As I have argued many times before, the threshold extraterritoriality question should not be used as proxy for avoiding all these tough cases, which need to be looked at and decided on their merits.

I would also note, however, that something very important happens in para. 95 of the judgment, where the Court appears to endorse Leggatt J’ view in Al-Saadoon that the personal model of Article 1 ECHR jurisdiction applies whenever a state uses physical force against a person, thus in effect collapsing this personal model. (I have argued in my book (at 207) precisely that the personal model has to collapse that way and cannot be limited non-arbitrarily, but also that this is not necessarily what the Strasbourg Court wanted to do in Al-Skeini). Essentially the Court of Appeal may already have implicitly decided one of the key issues in Al-Saadoon, thus paving the way to applying the ECHR not only to detention, but to kinetic operations as well.

Seventh, I am surprised that the government persisted with some rather dubious arguments on appeal. First there was the manifestly-destined-to-lose Behrami point on how the conduct of UK troops in Afghanistan is not attributable to the UK, but only to the UN. And then, even more weirdly, that because the UK was acting on behalf of the UN it was entitled to rely on UN immunities before domestic courts. Yes, you read that right – the UK government was saying that it was immune from the jurisdiction of its own courts because it was supposedly acting on the UN behalf. That led to a couple of frankly embarrassing passages in the judgment (para. 76ff), when the Court asked the government whether the UN Secretary-General was even aware that the government was invoking UN immunities (he was not), and the Court then ordering the government to notify the S-G. His legal adviser subsequently replied saying (quite correctly) that ISAF was not a UN operation and that its personnel had no UN immunities to invoke. It is simply beyond me why such arguments – especially the immunities one – ever got made, wasting everybody’s time and energy in the process.

Finally, and on a more trivial note, I’d like to note the very interesting pattern of citation to academic authority (and generally other non-binding persuasive authority as well) in the judgment. Namely, the Court doesn’t seem to cite any scholarship in many difficult parts of the judgment (e.g. those dealing with extraterritoriality, Article 103, relationship between IHRL and IHL, etc), but starts doing that, and at quite length, from para. 171 onwards, when it starts discussing whether there’s authority to detain in ‘internationalised’ NIACs. I have no clear explanation for this – it could be that different judges drafted different parts of the judgment, or that the Court was clear on most of the other issues and needed no help from academics, whereas the detention authority point was so crucial, yet so underdetermined, that recourse to scholarship was particularly helpful.

In any event the Court apparently did find all that scholarship of some use. I’ve also been told that the government argued before the Court of Appeal that it shouldn’t refer to blogs, because we’re supposedly less rigorous and trustworthy than journals since there is no formal mechanism of blind peer review. And I’m really happy that this is not a position that the Court in the end accepted! It cited three EJIL Talk posts (paras. 197, 241), and also extensively discussed a post by Ryan Goodman on Just Security (paras. 208-209). So yay for us.