The Authority to Detain in NIACs Revisited: Serdar Mohammed in the Court of Appeal

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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.

An imperial judiciary on the march?

Looking at the judgment as a whole, it is evident that the Court acknowledged the strengths of the competing arguments advanced by the parties. As a result, both sides of the debate will find something to cheer about. The judgment thus serves as a welcome reminder that tarnishing all courts with the brush of ‘judicial imperialism’ (see Clearing the Fog of Law: Saving our Armed Forces from Defeat by Judicial Diktat) overstates the case (and is counter-productive, as argued here). Those supportive of the Secretary of State’s position may find consolation in the following aspects of the judgment.

First, the Court chose to revisit the extra-territorial scope of application of the ECHR. During the proceedings in the lower court, the Ministry of Defence disputed that Mr Mohammed’s claim fell within the territorial scope of the ECHR. Leggatt J roundly rejected that argument, observing that detention on a military base was one of the core examples of the personal model of jurisdiction identified in Al-Skeini v UK (2011) and accepted in Smith v MoD [2013] UKSC 41. Since the Secretary of State did not appeal that finding, one may have expected the matter to be closed. The Court, however, showed no such restraint and instead expressed serious concerns as to the ‘far reaching nature of [Al-Skeini] and as to the real difficulties that arise as a result of the decision’ (paras 95–97 and 106). The Court also clearly implied that it was dissatisfied with the way in which the Supreme Court ‘loyally applied the reasoning of the Grand Chamber in Al-Skeini’ in Smith (para 97). In this respect, it is noteworthy that the Court drew attention, by way of comparison, to the limited territorial reach of the Canadian Charter of Rights and Freedoms (para 98) and eagerly granted permission to appeal to the Supreme Court on the jurisdiction issue, but not in relation to the contested issue of detention. It is difficult not to view this as an invitation to the Supreme Court to revisit Al-Skeini and its application by the British courts.

Secondly, the Court adopted a more compelling interpretation of the relevant Security Council resolutions. In the High Court, Leggatt J held that the Security Council resolutions relating to Afghanistan authorised the use of lethal force for the purposes of self-defence and, by necessary implication, also permitted the detention of individuals believed to pose an imminent threat (para 219). However, this approach construes the scope of ISAF’s mandate far too narrowly (see here at 81–87). The Court of Appeal evidently came to the same conclusion, holding that on their ordinary language the applicable Security Council resolutions authorised the use of lethal force and detention in all those circumstance and for as long as necessary in order to enable ISAF to fulfil its mandate (para 148). In particular, nothing in those resolutions limited detention to 96 hours or to persons posing an imminent threat. Whereas Leggatt J interpreted the relevant Security Council resolutions subject to the demands of the ECHR, the Court of Appeal rightly distinguished between two issues:

The first question to be addressed is a question of interpretation of the UNSCRs. The second question is whether there is any qualification to the authority given under the UNSCR by a system of international human rights law. That is a separate question as that will depend on the terms of the particular system of human rights law (if any) which may be applicable to the armed forces of the particular State. The issue of construction must apply to all operating under the UNSCR and cannot be influenced by the terms of a particular system of human rights law. (para 148)

Thirdly, in relation to that separate question, the Court accepted that Security Council resolutions adopted under Chapter VII of the UN Charter are capable of displacing the UK’s conflicting obligations under the ECHR. In doing so, the Court adopted a more deferential attitude towards the UN Charter than the High Court. Leggatt J accepted that Article 103 of the UN Charter applied to authorisations issued by the Security Council acting under Chapter VII, but held that the phrase ‘all necessary means’ failed to meet the requirement for ‘clear and explicit language’ identified by the European Court in Al-Jedda v UK (2011). One option would have been for the Court to disagree as a matter of construction (see here at 78–80). Surprisingly, the Court of Appeal instead preferred to side step the technicalities of Article 103 by suggesting that Al-Jedda had been superseded by the more recent finding in Hassan v UK that Article 5 of the ECHR had to be interpreted in a manner that accommodates its provisions with the power to detain under the Geneva Conventions of 1949:

In our view, by parity of reasoning, if detention under the Geneva Conventions in an international armed conflict can be a ground for detention that is compatible with Article 5 ECHR, it is difficult to see why detention under the UN Charter and UNSCRs cannot also be a ground that is compatible with Article 5. (para 162)

Given the almost inevitable upwards trajectory of the present case, the Court appears to have been motivated by a desire to get around the fact that in Al-Jedda the European Court held that Article 103 of the UN Charter is limited to obligations. In essence, the Court of Appeal relied on Hassan to short-circuit this restrictive approach. Since the principle of systemic interpretation applied in Hassan would allow the courts to accommodate an authority to detain conferred by the Security Council with the requirements of Article 5 of the ECHR, it is no longer necessary to formally invoke Article 103. The norm conflict between the relevant Security Council resolutions and the ECHR is simply interpreted away. This is certainly not an unreasonable position to take, especially bearing in mind the Strasbourg Court’s own deference to the UN Charter in Behrami.

Fourthly, as regards IHL, the Court accepted that there was force in three inter-related propositions. The first was that the individual rules and overall structure reflect the principle of military necessity alongside that of humanity (paras 9(ii)(c) and 164) (see also here at 89-94). The second proposition was that the logic of IHL entails status-based distinctions:

[I]f international humanitarian law is limited to or principally about prohibitions, it remains necessary to explain why the rules…distinguish between the position of combatants and civilians, and delineate who is entitled to be protected from lethal force and military operations. (para 193)

The third proposition, which the Court labelled the ‘a fortiori argument’ and described as ‘undoubtedly…powerful’, was that the power to detain must be implied in the power to use the lethal force against members of armed groups (para 214).

Finally, the Court also apparently adopted a more deferential attitude towards the concept of lex specialis. In the lower court, Leggatt J accepted that lex specialis might operate as a principle of interpretation, but denied that it could serve as a basis for displacing the application of the ECHR in favour of any conflicting rules of IHL, given that the ECHR incorporated a tailor-made mechanism to achieve this effect in the form of derogations under Article 15 (para 284). As the Court of Appeal recognised, this conclusion had to be revised in the light of Hassan (see also here at 113–116), since there the Strasbourg Court was ready to accommodate the rules of IHL in the absence of a derogation. Although the Court of Appeal did not expressly equate the approach adopted in Hassan with an application of the lex specialis principle, it is interesting to note that it discussed Hassan under the general heading of the relationship between international human rights law and IHL, recognised that IHL constituted the lex specialis (para 82) and accepted that this lex specialis could lead to the modification of international human rights law (para 108).

What are the new parameters of the core debate?

In key respects, the Court of Appeal’s reasoning is very close to the Secretary of State’s position. Why, then, did the Court ultimately disagree with the Secretary of State? The answer lies in its application of the principles we discussed above.

As regards Security Council authorisation, the Court’s conclusion is premised on the view that ‘the authority had been granted to ISAF’ and ‘it was for ISAF to determine the conditions under which [participating] forces … could detain’ (para 149). ISAF policy limited detention to 96 hours and it was not open to the UK unilaterally to detain beyond that time limit. The Court’s reasoning here is problematic for two reasons. First, it failed to address the fact that the authorisation under Resolution 1890 is explicitly conferred upon all Member States participating in ISAF, rather than ISAF itself. On a plain meaning of the resolution’s language, the Member States were the addressees and beneficiaries of that authority. Filling in the missing link, the Court appears to have assumed that the Security Council only authorised Member States to act, collectively and under unified command, not individually. This is a powerful argument, but it is not self-evidently correct and requires careful consideration.

Secondly, it is not immediately obvious why ISAF policy documents should have the effect of cutting down the scope of Security Council authorisation. On this view, Member States will need to ensure that express provision is made from the outset for extended detention on security, intelligence or ‘logistical’ grounds. In the present case, the Court held that the fact that ISAF did not protest when informed by the UK of the detention was insufficient to amount to acquiescence (paras 70–71). The possibility of seeking authorisation, or amendment to policy, on an ad hoc basis will be of little comfort in operational situations requiring a rapid response.

Turning to IHL, for reasons we have previously articulated in detail in relation to the High Court judgment, we do not find the Court’s answer to the a fortiori argument convincing. Despite acknowledging the role of status-based distinctions in structuring and delineating IHL, the Court then proceed to its conclusion without applying, or ascribing importance to, this central consideration. This approach, which underpins the Court’s view that the rules of IHL are ‘primarily prohibitive’ (para 243), is particularly evident in two places in the Court’s judgment.

The first is found in the Court’s proposed solution to the “Catch 22” problem that, on Leggatt J’s analysis, a person will not pose an imminent threat once he is detained, meaning that the ground for detention evaporates and he must be released. The Court elaborates upon Leggatt J’s approach by reasoning that detainees ‘should generally be regarded as posing an imminent threat, albeit one subject to a contingency’ (paras 147 and 212). Had the Court recognised the enduring nature of status-based distinctions, this artificiality and unnecessary reliance on peacetime law enforcement concepts may have been avoided.

The second lies in the Court’s analysis and rejection of the a fortiori argument, which it treated as a question of IHL treaty law. Like Leggatt J, the Court relied on the reluctance of States to include in Common Article 3 and APII an express power for detention and on concerns about reciprocity (paras 216 and 178–181). However, as we explain here at 94–95, this is to conflate the principle of equality of treatment with that of equality of status. The Court was content to leave this central question open, thereby obscuring the full importance of status-based distinctions in IHL:

The Secretary of State argues that it is possible to find that a State’s armed forces are authorised to detain during a non-international armed conflict without also finding that insurgents are granted the same power. Whether or not this is the case as a matter of logic, the fact is that, as seen in the ICRC’s commentary, concerns about reciprocity were an influential factor in the formation of the treaties. (para 179)

This question is, however, central to the a fortiori argument, since there is no express or obviously implicit legal basis for the common practice of status-based killing in IHL treaty law applicable in NIACs. As a result, there are three options: (a) the authority is derived from the structure and logic of IHL; (b) the authority is derived from customary international law; or (c) no such authority exists. Whereas both options (a) and (b) support the a fortiori argument, assuming that human rights law is not otherwise modified or displaced, option (c) leads to the conclusion that any killing outside the confines of self-defence amounts to a violation of the right to life.

Followed to its logical conclusion, the Court’s application of more restrictive international human rights law standards renders the prohibitive rules of international human rights law entirely redundant at least as far as State parties to NIACs are concerned.

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ELieblich says

August 6, 2015

Without saying anything conclusive on the substantive question itself (I'm torn on this), two comments:
(a) what strikes me as odd is the absence of any "object and purpose" approach from the Court's interpretation of IHL (ctrl+f and "vienna" yields zero results). Applying articles 31-32 VCLT, one could argue that the "a fortiori" problem renders the conclusion here absurd.
(b) It's quite curious that the Court attacks the application of the Lotus principle to the issue of detention (rightly so), but then, in paragraph 253, bases its refusal to "develop" international law in this context upon the fact that IL is a product of "the common consent of nations". However, if this was truly the case, detention would be clearly allowed, since we all know why IHL is silent on this issue in NIACs (to protect state sovereignty). Utopia and apology anyone?

Aurel Sari says

August 6, 2015

Thanks Eliav, two good points! On the first, systemic interpretation might be more helpful, rather than object and purpose. On the second, I think that bringing up Lotus in this context is a red herring. The question is not, unless I missed something, whether in the absence of an express prohibition to detain, there is a Lotus-principle based legal black hole enabling States to do what they want. This question doesn't even begin to make sense, given that there IS a prohibition in the form of Art 5 ECHR. The absence of a similar prohibition to detain in IHL wouldn't trump Art 5 under Lotus. For that to happen, we would need at least a positive authorisation in IHL. We argue that such an authorisation can be deduced from the principles and structure of general IHL and the actual terms and travaux of the relevant treaties, as confirmed by State practice.

Anthony Bartlow says

August 28, 2015

As treaty law contains no explicit detention construct for any type of NIAC, the authority for NIAC detention generally, and any alleged distinction between internal and transnational NIAC detention authority in particular, would have to be found in customary IHL of NIAC, if it is not contained in domestic law. Again, Justice Leggat got it right and the burden is on those who claim the contrary to show a critical mass of state practice and opinio juris supporting their view that either all of detention authority in NIAC comes from IHL, or that only transnational NIAC detention authority comes from IHL.