Marie Villetorte
Thesis supervisor:
Pr. T. D. Gill
The legality of detention in a non-international armed conflict
in the light of Serdar Mohammed v. Ministry of Defence: a
loo-phole in international humanitarian law?
Thesis submitted as part of the Master’s Degree in International Public Law.
TABLE OF CONTENTS
INTRODUCTION
I. Facts and Background - Serdar Mohammed v. Ministry of Defence,
laying the scene:
A. Exposition of the facts in Serdar Mohammed
B. The involvement of the United Kingdom in Afghanistan as part of the Interna-tional Security Assistance Force
C. Presentation of the detention policies of the International Security Assistance Force and the United Kingdom and their divergence
II. Vindication of the viewpoint in favour of the existence of a legal basis
to detain under international humanitarian law:
A. The intended absence of an explicit authority to detain in the black letter of in-ternational humanitarian law
B. Bolstering the “raison d’être” of international humanitarian law: an implicit legal basis to detain for both state and non-state actors:
1. The legal black-hole ensuing from the absence of a legal basis to detain under international humanitarian law
2. The rejection of reviving the principle of military necessity as a normative rule
3. A requirement to detain in the light of the telos and logic of international hu-manitarian law
4. Solutions to the obstacles raised by the English High Court
C. Practice does not lie - evidence supporting a legal basis to detain under custo-mary international humanitarian law
D. Partial conclusion
III. The relationship between international humanitarian law and
interna-tional human rights law in times of armed conflict- the dual operation
of the complementary approach and the lex specialis principle:
A. The continued applicability of international human rights law in armed conflicts
B. Extracting full utility from the mutual application of international humanita-rian law and international human rights law
C. The intertwining of the complementary approach and the lex specialis principle regarding detention in non-international armed conflict
CONCLUSION
List of abbreviations Table of casesINTRODUCTION
In a 2011 report , the International Committee of the Red Cross (ICRC) provided an overview of 1
the challenges posed by contemporary armed conflicts for international humanitarian law (IHL). Detention in non-international conflicts was one of them. The ICRC focused primarily on the treat-ment of detainees, rules on material conditions of detention and procedural safeguards. As interest-ing and significant as these issues are, they are widely discussed topics and I chose to tackle a point 2
in question that armed forces are confronted with prior to de facto carrying detention.
As a result of the involvement of the United Kingdom (UK) in the non-international armed conflict (NIAC) in Afghanistan, UK Courts had to deal with military detention in the context of such type of armed conflicts and rekindled the whole debate. Military detention, also called security detention , 3
is the “non-criminal detention of a person based on the serious threat that his or her activity poses to the security of the detaining authority in an armed conflict” . Alternatively, criminal detention refers 4
to detention based on charges raised against the detainee.
The line of reasoning of the English Courts in the Serdar Mohammed cases provides the Ariadne’s thread of this thesis. Hence, let us set the scene which will accompany us throughout this study. In April 2010, Serdar Mohammed (SM) was captured by United Kingdom (UK) forces contributing to the International Security Assistance Force (ISAF) mission in Afghanistan. He was put in UK custody on suspicion of being an insurgent, perhaps even a Taliban commander and subsequently remained in detention in UK military bases for a total of 110 days. SM brought a case under the 1998 Human Rights Act before the English and Welsh High Court of Justice . SM claimed that his 5 6
detention was in violation of both Article 5 of the European Convention on Human Rights (ECHR) 7
and Afghan law.
ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, 31st International Con
1
-ference of the Red Cross and Red Crescent, 31IC/11/5.1.2, Geneva 28 November-01 December 2011.
See for example, Pejic, Procedural Principles and Safeguards for Internment/Administrative Detention in Armed Con
2
-flict and Other Situations of Violence, I.R.R.C Vol. 87 No. 858 June 2005 (hereafter ‘Pejic, Procedural Principles’);
ICRC, Strengthening Legal Protection for Persons Deprived of their Liberty in relation to Non-international Armed
Conflict, Background Paper, Regional Consultations 2012-13 (hereafter ‘ICRC, Strengthening Legal Protection’);
Deeks, Administrative Detention in Armed Conflict, 40 Case W. Res. J. Int’l L. 403 2007-2009 (hereafter ‘Deeks,
Ad-ministrative Detention’).
The terms “security detention”, “preventive detention”, “administrative detention” and “military detention” will be
3
used interchangeably.
Pejic, Conflict Classification, supra note 5, p. 86.
4
Human Rights Act 1998 (UK), Chapter 42. The HRA incorporates the rights contained in the European Convention on
5
Human Rights into UK law and enables individuals to seek remedy of an alleged breach before a domestic court. High Court (Queen’s Bench Division) 02-05-2014, [2014] EWHC 1369 (QB) (Serdar Mohammed v. Ministry of De
6
-fence) (hereinafter ‘Serdar Mohammed HC’).
Convention for the Protection of Human Rights and Fundamental Freedoms, 1950, 213 U.N.T.S. 221 (hereafter
7
On the 2nd of May 2014, the Court represented by Mr. Justice Leggatt ruled that the British armed forces had no legal authority to detain SM under IHL- and more generally international law - in the context of the non-international conflict ongoing in Afghanistan. The first four days of detention were found consistent with ISAF policy, were authorised by the United Nations (UN) Security Council (SC) resolution and compatible with Article 5 ECHR. On the contrary, the further detention of SM (25 days for interrogation purposes and 81 for logistical reasons) had no legal basis, either in Afghan law or under international law - be it UNSC resolution or IHL. Article 5 ECHR, not being displaced or modified by another rule of international law , had been infringed upon and SM was entitled to compensation by the UK.
On the 30th of July 2015 , the Court of Appeal upheld the main conclusions of the lower Court. 8
The question of whether there is a legal basis to detain for security purposes related to the armed
conflict under IHL appeared to be the central issue in Serdar Mohammed. Had both Courts found
that there was an authority to detain for security reasons under IHL, the UK would have been able to justify the 110 days of detention.
While the British presence in Afghanistan serves as a case study, this question carries a general le-gal theoretical value. Also, answering to this research question is highly relevant for the armed forces on the ground, where they need to take decisions within a few seconds.
With the steady increase in the number of NIACs to the point that it is now the dominant kind of armed conflicts in the world, the corresponding legal regime stemming from IHL is under the spot-light. Yet, this topic is unresolved.
Over the years, the term “NIAC” has expanded to now incorporate sub-categories. At one end of the spectrum, a traditional/classical NIAC opposes government armed forces and one or more organ-ised armed group or such groups between themselves in the territory of a single State. At the other end, a “multi-national NIAC” opposes “multinational armed forces, fighting alongside the armed 9
forces of a ‘host’ State—in its territory, against one or more organised armed groups” . 10
I will seek to make my contribution to the topic by bringing clarity and insight into what the lex lata is. Efficient and lawful conduct of hostilities goes hand in hand with clear-cut rules.The minimal number of treaty rules in NIAC law complicates matters but answering this question is of funda-mental importance due to the predominance of NIACs and the common use of security detention. In order to do so, the traditional direct sources of international humanitarian law (treaties, custom) will be examined. Due to the paucity of treaty rules, customary law plays a large part in the regula-tion of NIACs. Also, this study will rely on judicial decisions and the policies of the UK and ISAF will also be considered.
Court of Appeal (Civil Division) 30-07-2015, [2015] EWCA Civ 843 (Serdar Mohammed & Others v. Secretary of
8
State for Defence) (hereinafter ‘Serdar Mohammed CA’).
Pejic, Conflict Classification and the Law Applicable to Detention and the Use of Force in : International Law and the
9
Classification of Conflicts, 2012, p. 82 (hereafter ‘Pejic, Conflict Classification’).
Ibid, p. 91.
The laconic nature and paucity of conventional law applicable in NIACs complicate the task. Be-cause of the deficiency of express language concerning a legal basis to detain, I will engage in an interpretative work. What did the drafters of CA3 and APII intend? Given how sensitive the appli-cation of IHL to NIACs was, it is not easy to decipher the drafters’ intention.
Also, recourse to IAC law will prove helpful - and workable - to fill the gap concerning grounds and procedural safeguards.
Against this background, customary international humanitarian law carries even more value and must be carefully examined.
It will also be necessary to go back to the basics: what is IHL about? Is military detention an indis-pensable component of the spirit of IHL? A purpose-orientated view and an efficiency-maximisa-tion of IHL must be adopted.
Principles at the heart of IHL, like the principe of equality, raise additional questions in the context of NIACs. What is the meaning of this principle? What is its consequence?
Moreover, extraterritorial issues ensue from multinational NIACs. Particularly so in multinational NIACs, it may be impossible to find a legal basis to detain elsewhere than in IHL. Yet, in such context, it is important that the actions are in fact and are seen as legitimate and lawful to gather the support of the host population and avoid any public backlash.
Last but not least, this topic raises questions on the international plane. Since the 1960s, it is widely accepted that international human rights law (IHRL) continues to apply in armed conflicts. Howe-ver, the interrelationship of IHL-IHRL during armed conflicts is far from agreed upon. It must be determined on a case by case basis, with the aid of tools - amongst which the complementary ap-proach and the lex specialis principle. What is the outcome of the application of these tools in the context of detention in NIACs?
The first chapter of this thesis will explain the background and facts of the case. It will recount the sequence of events and delineate the ISAF and UK detention policies.
Chapter Two will seek to critically analyse the conclusions of the High Court and the Court of ap-peal regarding a legal basis to detain under NIAC-IHL and will ultimately disagree with it. The arguments raised by Mr. Justice Leggatt as hampering the existence of an authority to intern under IHL will receive attention and solutions.
The third chapter will assess the relationship between the authority to detain under IHL and Article 5 ECHR in the context of NIACs.
I. Facts and background - Serdar Mohammed v. Ministry of Defence,
laying the scene:
A. Exposition of the facts in Serdar Mohammed:
Mr Serdar Mohammed (SM), an Afghan citizen, was arrested on the 7th of April 2010 by United Kingdom (UK) armed forces in Northern Helmand in Afghanistan during an ISAF mission targeting a senior Taliban commander. Insurgents present in the mission theatre represented a “significant and imminent threat” notably by firing at the British soldiers and were killed or arrested during the ope-ration.
SM was subsequently imprisoned in UK military detention facilities and identified as a senior Tali-ban commander, known as Mullah Gulmad, responsible for a large scale production of improvised
explosive devices and the running of a training camp in 2009. He remained under British detention until his transfer into Afghan custody on the 25th of July 2010. After appeal, he was convicted by the Afghan justice system of a 10-year imprisonment.
SM brought a case before the High Court of Justice (Queen’s Bench Division) against the Ministry of Defence, claiming that his detention was unlawful under both the Human Rights Act 1998 (HRA) and Afghan law.
After the initial 96 hours, SM was kept in detention by an order of the British executive with a view to worm out intelligence for another 25 days. Then, the Afghan National Directorate of Security in-formed the UK that they were willing to take SM into their custody but the overcrowding of the pri-sons impeded them from doing so for the time being. Hence, SM remained in British-run detention centre for 81 additional days for “logistical reasons”. The overall time spent in the hands of the UK armed forces was 110 days.
B. The United Kingdom involvement in Afghanistan as part of the International Security Assistance Force:
Since the overthrow of the Taliban regime by the Coalition forces, the Afghan government has been involved in a NIAC against various rebel forces amongst which were the Taliban and Al-Qaeda. The Bonn Agreement signed in December 2001 put in place an Interim Administration. Moreover, 11
‘International Security Assistance Force’ (ISAF) which is a multinational force operating under the mandate of the UN Security Council (UNSC) was created by Resolution 1386 after the request of 12
the newly established Afghan government. In 2003, ISAF fell under the command of the North At-lantic Treaty Organisation (NATO).
One important feature of Resolution 1386 which is relied upon by Justice Leggatt is that the respon-sibility for the maintenance of security and law and order is vested primarily in the Afghan govern-ment. ISAF has been endowed with a task of assistance but it was nevertheless authorised to “take all necessary measures to fulfil its mandate” . A Military Technical Agreement was agreed upon 13 14
between ISAF and the Interim Administration in January 2002 concerning the intertwining of the tasks and powers of these respective entities.
UNSC, Agreement on Provisional Arrangements in Afghanistan Pending the Re-establishment of Permanent Gov
11
-ernment Institutions “Bonn Agreement”, S/2001/1154, 05-12-2001.
UNSC, Resolution 1386, S/RES/1386, 20-12-2001.
12
Ibid.
13
Military Technical Agreement between ISAF and the Interim Administration of Afghanistan, 04-01-2002, annex to the
14
letter dated 14 January 2002 from the Permanent Representative of the United Kingdom of Great Britain and Northern Ireland to the United Nations addressed to the President of the Security Council, S/2002/117.
C. Presentation of the detention policies of the International Security Assistance Force and the United Kingdom and their divergence :
The detention policy of ISAF enshrined in Standard Operating Procedures (SOP) 362 authorises detention for a maximum of 96 hours after which the detainee must be either released or transferred to the Afghan criminal justice system . The grounds upon which a detention can be conducted are 15
threefold:
- “if necessary for ISAF force protection or
- if necessary for the self-defence of ISAF or its personnel or - if necessary for accomplishment of the ISAF mission.” 16
ISAF rules do not permit extension of the detention period, except in order to secure a safe envi-ronment for the release or transfer of the detainees . As picked up by Justice Leggatt, Annex C to 17
SOP 362 expressly states that “information intelligence value is not by itself a basis for ISAF deten-tion” . 18
In November 2009, alleging the strong military value of a intelligence exploitation capability, the UK executive announced its intent to adopt its own national detention policy substantially differing from that of ISAF . 19
Under this domestic caveat, UK Ministers could authorise continued detention beyond 96 hours for the purpose of interrogation if it is believed that the detainee can provide new crucial intelligence . 20
The UK’s national policy has not been agreed to by either NATO or the Afghan government. Yet, the fact that the Afghan government did not request the UK support to cease could be interpreted as meaning that it implicitly agreed with the extension of the detention policy.
ISAF, Standard Operating Procedures, Detention of Non-ISAF Personnel (SOP 362), 31-08-2006, para. 5. Citedin
15
Serdar Mohammed HC, supra note 6, para. 35 (hereinafter ‘SOP 362’).
Ibid, para. 4.
16
SOP 362, supra note 15, para. 8.
17
Ibid, Annex C, para. 17. Cited in Serdar Mohammed HC, supra note 6, para. 37.
18
Cf. Written Ministerial Statement to Parliament 9-11-2009 and Letter from the UK Deputy Permanent Representative
19
to the Secretary General of NATO 5-11-2009. See Serdar Mohammed HC, supra note 6, paras. 44-49.
United Kingdom, Standard Operating Instruction J3-9 (UK SOI J3-9), Amendment 2 dated 12 April 2010. This ver
20
II. Vindication of the viewpoint in favour of a legal basis to detain under
international humanitarian law applicable in non-international armed
conflicts:
In Serdar Mohammed, the High Court had to tackle the controversial question as to whether a legal basis to detain exists under the law of armed conflict. The Ministry of Defence contended that au-thority to detain by UK armed forces in Afghanistan exists under such body of law and that it dis-places/qualifies Article 5 ECHR by virtue of the lex specialis principle . 21
Justice Leggatt reached the conclusion that the British armed forces lacked the authority to detain SM under IHL , dividing its analysis into three assessments: whether there is an explicit legal ba22
-sis, whether there is an implicit legal basis and whether there is a legal basis under customary law . 23
I will examine each of them and ultimately disagree with the Court’s overall conclusion. The IHL treaty provisions applicable to detention in the context of a non-international armed conflict are Common Article 3 (CA3) to the 1949 Four Geneva Conventions and Article 5 of Addi-tional Protocol II 1977 (APII) . 24
Now that the relevant conventional rules have been highlighted, it will firstly be ascertained whether their language reveals an explicit authorisation to detain.
A. The intended absence of the absence of an explicit authority to detain in
the black letter of international humanitarian law:
Paragraph 1 CA3 requires that “persons taking no active part in the hostilities” are to be treated hu-manely. Amongst others, this category of persons includes “those placed hors de combat by
deten-tion”. Article 4 APII , also prescribing fundamental guarantees, is a more elaborated version of 25
CA3. Article 5 of the same instrument is pointedly aimed at the protection of “persons deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained”. It bur-dens those responsible for the internment or detention with ensuring complementary rights specif26
-ically needed by those placed in the hands of the enemy belligerent. Subsequently article 6 only 27
deals with criminal detention and due process.
Serdar Mohammed HC, supra note 6, para. 232.
21
Ibid, para. 268.
22
Serdar Mohammed HC, supra note 6, paras. 234-268.
23
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of
Non-24
International Armed Conflict (Protocol II), 8 June 1977, 1125 U.N.T.S. 3 (hereafter ‘APII’). Ibid, Art. 4.
25
While para. 1 of Art. 5 APII is concerned with obligations of result, the following paragraph imposes obligations of
26
conduct, “within the limits of the(ir) capabilities”. APII, supra note 24, Art. 6.
Contrary to those applicable in IACs, these provisions do not expressly state that “the Detaining Power may subject (prisoners of war) to internment” (Article 21 GCIII) or expressly authorise the 28
parties to the conflict to “take measures of control and security” amongst which internment (of 29
civilians) “if necessary for imperative reasons of security” . The vocabulary used in Articles 21(1) 30
GCIII and 27(4) GCIV unambiguously indicates that they can serve as the legal basis for detention. That the drafters of Common Article 3 and Additional Protocol II - States - avoided inserting an ex-plicit legal basis to detain in the black letter of international humanitarian law applicable in NIACs should not come as a surprise. Indeed, such an exercise could have been translated into a formal re-cognition of non-state armed groups. The “provision on the equality of the rights and duties of the parties to the conflict” and the term “parties to the conflict” were deleted from APII at the 1974-77 Diplomatic Conference because States were “concerned with affording non-state armed groups re-cognition” . The Official Records of the Diplomatic Conference are filled with assertions that 31
States and rebel parties must not be placed “on an equal footing” . 32
However, the statements of the States’ delegates and the care taken not to bestow upon insurgent groups any legal form of recognition - essential in order to secure the adoption of CA3 and APII - do not mean that States envisaged detention by them and non-state actors unlawful under IHL per
se. Any inclusion of an explicit legal basis to detain in the treaty text would have achieved legal
recognition. On the contrary, an implicit legal basis would carry no formal recognition towards rebel groups.
Throughout the Official Records, the tension between on one hand the States’ concern to shield their domestic law and their sovereignty from the incursion of international law and on the other hand their recognition of the merits of Additional Protocols is palpable . 33
States’ representatives made sure that international humanitarian law would not prevent domestic law from criminalising and prosecuting individuals taking up arms against States.
The UK Court reached an analogous reading of the conventional IHL clauses: there is no explicit legal basis to detain . But, the fact that CA3 and APII are devoid of an express legal basis does not 34
mean that an implicit legal basis cannot be inferred by means of an hermeneutic process.
Geneva Convention (III) Relative to the Treatment of Prisoners of War, 1949, 75 U.N.T.S. 135, Art. 21(1) (hereafter
28
‘GCIII’).
Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, 1949, 75 U.N.T.S. 287, Art.
29
27(4) (hereafter ‘GCIV’).
Ibid, Art. 78(1). According to Art. 42(1) GCIV, “the internment or placing in assigned residence of protected persons
30
may be ordered only if the security of the Detaining Power makes it absolutely necessary”.
Sivakumaran, The Law of Non-International Armed Conflict, 2012, p. 236. See also ICRC, Commentary on the Addi
31
-tional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, 1987, para. 4415 (hereinafter ‘ICRC, Commentary on the Additional Protocols’).
Official records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian
32
Law Applicable in Armed Conflicts, 1974-1977 (hereinafter “Official Records”). See Vol. VIII CDDH/I/SR.40, para. 29
(Iraq) and Vol. VII CDDH/SR.49, para. 33 (Saudi Arabia). Ibid, Vol. VII CDDH/SR.56 paras. 124-129 (Zaire).
33
Serdar Mohammed HC, supra note 6, para. 239.
The following section seeks to propose the interpretation of IHL applicable in NIACs most consistent with its context, object, purpose and spirit.
B. Bolstering the “raison d’être” of international humanitarian law: an
implicit legal basis to detain for both state and non-state actors:
The question of whether international humanitarian law applicable in non-international armed conflicts includes an implicit legal basis to detain is the Gordian knot of the whole debate. The Ministry of Defence maintained that a power to detain is implicit in both CA3 and APII . 35
The Court answered by the negative by means of three arguments . 36 37
I aspire to shed light on the contending answers given by scholars and (judicial) bodies to this ques-tion and ultimately take a stance on the issue by departing from the UK Court’s judgment.
The first argument Justice Leggatt raises in opposition to an implicit authority to detain was directly based on the absence of an express legal basis. According to him, if the drafters had intended to give a legal basis to detain they would have done so expressly , as for instance in Article 21 GCIII. 38
Can a normative silence actually mean something other than a negative answer to a question? I be-lieve so.
Before plunging into the exegesis of CA3, APII and (NIAC) IHL more generally, one could ask whether it is permissible to seek support for a theory beyond the text?
The Vienna Convention on the Law of Treaties embodies the orthodox methods of treaty interpre39
-tation, including the teleological and historical ones . 40
In as much as detention is a “fundamental incident of waging war” in internal armed conflicts (as 41
well as in international ones), the absence of an explicit legal basis to detain, reached through a strictly textualist interpretation, can be said to amount to a “result which is manifestly absurd or un-reasonable” . In such a case, recourse should be sought to the travaux préparatoires of the treaties 42
and the circumstances of their conclusion and provisions must be interpreted in light of their object, purpose and context.
Ibid, para. 239.
35
Ibid, para. 251.
36
Serdar Mohammed HC, supra note 6, paras. 234-250.
37
Serdar Mohammed HC, supra note 6, para. 242.
38
Vienna Convention on the Law of Treaties, 1969, 1155 U.N.T.S. 331 (hereafter ‘VCLT’).
39
Ibid, Art. 31(1).
40
United States Supreme Court 28-06-2004, (03-6696) 542 U.S 507 (Hamdi et al. v. Rumsfeld, Secretary of Defense, et 41
al.,), p. 10.
VCLT, supra note 39, Art. 32(b).
Is it consistent with these tools of interpretation to view NIAC-IHL as merely protecting persons that are in fact deprived of their liberty but leaving the question regarding the existence of the legal basis to detain pending?
1. The legal black-hole ensuing from the absence of a legal basis to detain under international humanitarian law:
CA3 and APII offer fundamental guarantees to persons deprived of their liberty. In other words, these provisions regulate an aspect of detention once it occurs, by establishing a bottom line of treatment. Is that all?
According to J. K. Kleffner, “a generic power to that effect [stipulating the legal basis] is implicit in CA3 [and APII], in as much as it identifies as one category of persons taking no active part in hos-tilities “those placed hors de combat by … detention” . 43
In the same vein, the Columbia District Court held that: “states engaged in such conflicts can detain those who are part of armed groups. Otherwise, there would be no persons … placed hors de
com-bat by … detention to treat humanely” . 44
The central idea is that a rule of law can serve three different purposes: regulating and/or prohibit-ing or authorisprohibit-ing.
It is widely agreed that the absence of an express grant of the power to detain cannot reasonably be interpreted as a prohibition to perform the concerned action. The power to kill combatants in IACs is a striking example. Nowhere the IHL rules applicable in the context of IACs explicitly provide an authorisation to kill, yet this practice is not considered ultra vires.
The second option would be to view the lack of express language as the drafters’ wish to keep the law impartial vis-à-vis the fact of detention. The UK High Court concurred with it, holding that the legal basis to detain in NIACs lays in other body(ies) of law than in IHL.
I believe that this is not the right conclusion to draw from it. The Court’s opinion is based on the assumption that a legal basis to detain can be found in other bodies or law. Yes, it can. But the an-tipodal storyline is just as likely. In the absence of an implicit legal basis under IHL, detention would operate in a legal black-hole. According to K. Mačák, the “overpowering thunder of ubiqui-tous non-compliance” proves to be fatal to Justice Leggatt’s contention. 45
Kleffner, Operational Detention and the Treatment of Detainees in: The Handbook of the International Law of Mili
43
-tary Operations, 2013, p. 471. See also Chesney & Goldsmith, Terrorism and the Convergence of Criminal and Mili-tary Detention Models, Stanford Law Review, Vol. 60 No. 4 Feb. 2008, p. 1086 (hereafter ‘Chesney & Goldsmith, Ter-rorism’).
United States District Court (Columbia) 22-04-2009, 609 F.Supp. 2d 43 (Gherebi v. Obama et al.), para. 65.
44
Mačák, A Needle in a Haystack?, Israel Yearbook on Human Rights Vol. 45 (2015, forthcoming), p. 10. I would like
45
Domestic law can constitute the source of the legal basis to detain but it does not offer a systematic response to the issue. In addition to this, in the context of extraterritorial NIACs, compliance with the domestic law of the Host State is fundamental. In the case at hand, Afghan law was held to pro-vide no scope for detention by foreign armed forces . 46
The same drawbacks appear if one relies upon United Nation Security Council Resolutions. Given that political considerations inform the decision-making process of the Security Council, it can prove impossible to secure a resolution.
Even if one accepts that the expression “all necessary measures” implicitly authorises for detention, it only gives authority in the ad bellum sphere. It gives legitimacy to the detentions carried out but does not explain under which paradigm they must be carried out. Hence, an authorisation is needed in the in bello sphere as a complement.
With regard to international human rights law, all it calls for is non-arbitrary detention. To be more precise, it requires detention to be based on grounds and a lawful authority . Thus, it evidently 47
cannot serve as a legal basis for detention.
If the two potential legal sources above cited do not allow armed forces to detain and if LOAC is considered normatively neutral, detention occurs in a legal vacuum. Without any legal basis, deten-tion is deemed arbitrary and thus unlawful (amongst others) under IHRL . 48
Arbitrary detention can also lead to criminal prosecution. Indeed, the Statutes of the International Criminal judicial bodies qualify deprivation of liberty in violation of international law as a crime against humanity when committed as part of a widespread or systematic attack . 49
Last but not least, arbitrary detention also infringes the IHL customary prohibition on arbitrary de-privation of liberty contained in Rule 99 of the ICRC’s Study and is a grave breach of Geneva 50
Conventions .51
Mačák’s conclusion perfectly grasps the dilemma: “It is hardly satisfactory to accept that an omni-present feature of modern-day armed conflicts — which detention surely is — would in fact be un-lawful and amount to continuous violations of human rights and other bodies of law” . 52
Serdar Mohammed HC, supra note 6, para. 75.
46
See International Covenant on Civil and Political Rights, 1966, 999 U.N.T.S. 171, Art. 9(1) (hereafter ‘ICCPR’);
47
American Convention on Human Rights, 1969, OAS Treaty Series No. 36, Art. 7(2) (hereafter ‘ACHR’); African Char-ter on Human and Peoples’ Rights, 1981, 1520 U.N.T.S. 363, Art. 6 (hereafChar-ter ‘ACHPR’).
See ECHR 23-05-2001, App. Nos. 25316-25321/94 & 27207/95 (Denizci and others v. Cyprus), paras. 392-93.
48
See Rome Statute of the International Criminal Court, 1998, 2187 U.N.T.S. 3, Art. 7(1)(e) (herafter ‘ICCPR’); Statute
49
of the International Criminal Tribunal for the Former Yugoslavia, 32 I.L.M. 1159 (1993), Art. 5(e); Statute of the In-ternational Criminal Tribunal for Rwanda, 33 I.L.M. 1598 (1994), Art. 3(e).
ICRC, Customary International Humanitarian Law (Volume I: rules), 2005 (hereinafter ‘ICRC, Customary IHL
50 Study’).
GCIV, supra note 29, Art. 147.
51
Mačák, A Needle in a Haystack?, supra note 45, p. 10.
It would be illogical to consider that CA3 and APII prohibit or are neutral with regards to detention - which is indispensable for the conduct of hostilities - and thereby (potentially) legally emascula-ting the parties to the conflict.
Against this background, the third and last option would be to consider that CA3 and APII both re-gulate (partially i.e only humane treatment) and provide a legal basis for military detention.
It is true that regulation and authorisation do not always coincide. The potential different loci for the legality side and the regulatory side of a same conduct is visible in the divide between jus ad bellum and jus in bello: IHL applies independently from the legality of the recourse to armed force. Howe-ver, it does not mean that within the law of armed conflicts (jus in bello) regulation and authorisa-tion cannot be contained in the same provision.
It is hard to conceive IHL, a body of law created to regulate the conduct of hostilities, as being ag-nostic to the legality of military detention. The fact that detention is expressly mentioned by CA3 and APII adds weight to this point of view. For those who find that it is too thinly substantiated, this study will now consider NIAC-IHL more generally and thus go beyond the black letter of CA3 and APII
2. The rejection of reviving the principle of military necessity as a normative rule:
The UK High Court relied on the “humanitarian purpose” of CA3 and (article 5) APII to rule that 53
they do not provide an authority to detain but merely a bottom-line of humane treatment for those who are deprived of their liberty, irrespective of the legality of the detention.
Justice Leggatt quoted a comment from the ICRC, stating that CA3 and APII aspire to “secure[ing] fundamental guarantees for all individuals in all circumstances” . 54
It has been argued that the Court turned a blind eye to the principle of military necessity. According to them, the principle of humanity is balanced against the principle of military necessity, which should also be relied on when interpreting NIAC-IHL .55
Military necessity is not a term of art. Modern authorities on the law of war often rely on the defini-tion contained in the Lieber Code : “as understood by modern civilized nadefini-tions, [it] consists in the 56
necessity of those measures which are indispensable for securing the ends of the war, and which are
lawful according to the modern law and usages of war” (own emphasis). 57
No argument can be raised against the fact that the overall structure of IHL is based on a delicate comprise between humanity and military necessity. However, I believe that considering military necessity as independently capable of making a power to detain emerge from IHL is too far-fetched.
Serdar Mohammed HC, supra note 6, para. 244.
53
Ibid, para. 244, citing ICRC, Commentary on the Additional Protocols, supra note 31, p. 1344.
54
Aughey & Sari, Targeting and Detention in Non-international Armed Conflict: Serdar Mohammed and the Limits of
55
Human Rights Convergence, 91 Int’l. L. Stud. 60 (2015), pp. 89-94 (hereafter ‘Aughey & Sari, Targeting and Deten-tion’).
U.S. War Department, General Orders No. 100, Instructions for the Government of Armies of the United States in the
56
Field, 24 April 1863, commonly known as Lieber Code. Ibid, Art. 14.
The plea of military necessity used by Nazi German officers during WWII to justify reprisal killing of civilians and destruction of properties in the occupied territories was rejected during the
Hostages Trial in Nuremberg . The United States Military Tribunal rejected the approach of mili58
-tary necessity by which mili-tary necessity in war is deemed to override the laws of war
(“Kriegsrai-son geht vor Kriegsmanier”) . 59
Such unlimited application of military necessity led to a total war in that it discarded all restraints on military action in war - the laws of war thus becoming merely a code of military convenience. The Tribunal reiterated that “military necessity or expediency do not justify a violation of positive rules” . The unlawfulness of the killing of innocent habitants for purpose of revenge and the wan60
-ton destruction of properties cannot be warranted by military necessity.
The use of military necessity made by N. Melzer in the ICRC’s guidance on Direct Participation on Hostilities proved to be the most controversial part of the non-legally binding document . Unlike 61
the majority of scholars who only recognise the permissive function of military necessity, N. Melzer argued that military necessity also embodies a restrictive function. According to him, this second facet requires that “the kind and degree of force permissible against legitimate targets must not ex-ceed what is actually necessary to accomplish a legitimate military purpose in the prevailing cir-cumstances” . In other words, capturing “combatants” or civilians DPH must be chosen over lethal 62
force - albeit killing is lawful under the laws of war - when the context allows for it.
I agree with M. N. Schmitt’s opinion that this contention “represents a misapplication of the law” . 63
Military necessity is best seen as a principle infusing IHL, meaning that “the requisite balancing has already taken place” . Based on considerations of military necessity and humanity, IHL has care64
-fully selected who is a lawful target and the use of non-lethal force has been deemed a requirement only towards those who have surrendered . 65
USMT (Nuremberg) 8-07-1947/19-02-1948 (The Hostages Trial, Trial of Wilhelm List and Others) Case No. 47 in
58
The United Nations War Crimes Commission, Law Reports of Trials of War Criminals, Vol. VIII, 1949, pp. 47-105 (hereinafter ‘The Hostages Trial’)
See ICRC, Commentary on the Additional Protocols, supra note 31, API Art. 35 (Basic rules in Methods and Means
59
of Warfare), p. 391. An equivalent maxim is “Not kennt kein Gebot”: necessity knows no law. The Hostages Trial, supra note 57, p. 66.
60
ICRC, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian
61
Law, 2009 (hereinafter ‘ICRC, DPH Interpretive Guidance’), ‘IX. Restraints on the Use of Force in Direct Attack’, pp.
77-82.
Ibid, p. 77. See also Melzer, Targeted Killing in International Law, 2008, pp. 279-99 (pp. 286-89 for the restrictive
62
function) (hereafter ‘Melzer, Targeted Killing’).
Schmitt, Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance, 50
63
Va. J. Int’l L. 795 2009-2010, p. 835. Ibid, pp. 838-39.
64
Cf. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of
65
International Armed Conflicts (Protocol I), 8 June 1977, 1125 U.N.T.S. 3, Art. 41(b) (hereafter ‘API’). Also a customary rule, see ICRC, Customary IHL Study, supra note 50, Rule 47(c).
A requirement of least harmful means in the conduct of hostilities does not form part of the lex lata and is not supported by State practice . At best, it can be based on policy and operational concerns. 66
More generally, rules grounded in humanitarianism have already been weighted against military necessity considerations. For example, direct attack against civilians is prohibited (humanity) but 67
civilians directly participating in hostilities lose this protection (military necessity) . 68
Military necessity has no force on its own, unless departure from the positive law on its basis is specifically mentioned in the lex scripta . It cannot constitute an independent normative power - be 69
it in its permissive or purported restrictive dimension - when there is no positive law . 70
The mere absence of a certain rule (kind and degree of force in the conduct of hostilities, right to detain in NIAC) must not be understood as necessarily justifying an action on the basis of military necessity. Even though one considers that all that is not prohibited is permissible, States discre-tionary power exists within the limits of customary law and general principles . 71
I do not cast doubt on the fact that humanity and military necessity were “driving forces for devel-opment of law” . Rather, it refuses to allow them more than the status of considerations: “the two 72
notions are within the law and they are so wholly and solely” . The restrictive dimension of mili73
-tary necessity does not justify further legal restraints and its permissive dimension does not allow for more than what the provisions permit.
As Justice Leggatt, I also consider that CA3 and (article 5) APII are primarily humanitarian provi-sions. However, as a guiding principle, military necessity is implicit in these proviprovi-sions. It can therefore be said that it underlies the implicit authorisation in CA3, APII and customary law to de-tain as a consequences of the hostilities.
I will now appraise whether such a power can be inferred from the telos (i.e logic and purpose) of IHL and/or is part of customary IHL.
See Akande, II. Clearing the Fog of War? The ICRC’s Interpretive Guidance on Direct Participation in Hostilities,
66
International and Comparative Law Quarterly Vol. 59 Issue 01 Jan. 2010, pp. 191-92 (hereafter ‘Akande, ICRC’s
Inter-pretive Guidance’).
It is the principle of distinction, contained in API Art. 52(2), APII Art. 13(2) and also a customary rule (see ICRC,
67
Customary IHL Study, supra note 50, Rule 1).
See API Art. 51(3), APII Art..13(3) and ICRC, Customary IHL Study, supra note 50, Rule 6.
68
See for example GCIV Art. 53 prohibiting destructing of properties by the Occupying power “except where such
69
destruction is rendered absolutely necessary by military operations”.
About the absence of self-standing power of the principle of military necessity, see also Fenrick, ICRC Guidance on
70
Direct Participation in Hostilities, YIHL, Vol. 12 Dec. 2009, pp. 297-99 (hereafter ‘Fenrick, ICRC Guidance’).
See ICRC, Commentary on the Additional Protocols, supra note 31: “when the law of armed conflict does not pro
71
-vide for any prohibition, the Parties to the conflict are in principle free within the constraints of customary law and gen-eral principles”, p. 393.
Kleffner, Section IX of the ICRC Interpretive Guidance on Direct Participation in Hostilities: The End of Jus in Bello
72
Proportionality as We Know It?, Israel Law Review Vol. 45 March 2012, p. 40.
Ibid, p. 41.
3. A requirement to detain in the light of the telos and logic of international hu-manitarian law:
Answering the question as to whether IHL implicitly provides for an authority to detain ultimately leads us to consider what is the telos of IHL or in other words its end or purpose. What is IHL about? IHL was created to mitigate the savagery of war and regulate the conduct of hostilities. At the same time, it recognises that wars are fought and leaves to the parties the means of fighting and ultimately defeating the enemy.
Detention is an indispensable component of the tools that parties to a conflict must be able to use in order to overcome the enemy. Through preventive detention, the aim is to incapacitate the enemy without having to bear the burden of a judicial process.
As put by the US Supreme Court, it is a “fundamental and accepted incident to war” designed to 74
“prevent captured individual from returning to the field and taking up arms once again” . Waging 75
war has to be feasible. If one refuses to read in IHL that parties are granted a power to intern, then the war is lost before even beginning.
Yet, more than a “qualified or conditional right to intern” , detention is an obligation under IHL. In 76
order to comply with the prohibition of denying quarter, parties must resort to detention.It can thus be said that military detention is both a military requirement and a humanitarian requirement. Also, an incentive to kill would ensue from the view that IHL does not provide a legal basis for se-curity detention.
Security detention serves the same motive in both types of armed conflicts: preventing the detainee from returning to the battlefield. NIACs are “armed conflicts, with ‘armed forces’ on either side en-gaged in ‘hostilities’ – conflicts, in short, which are in many respects similar to an international war […]” . 77
In sum, my position is that a requirement to detain flows from the telos of IHL. .
In the same vein, IHL also allows parties to resort to lethal force- albeit subject to regulation through the principles of distinction and proportionality. It has been suggested by the Ministry of Defence and scholars that the authority to detain can be inferred from the authority to kill as a 78 79
corollary. This is what the Court of Appeal referred to as the “a fortiori argument” . 80
Hamdi et al. v. Rumsfeld, Secretary of Defense, et al., supra note 41, p. 10.
74
Ibid, p. 10.
75
Chatham House and International Committee of the Red Cross, Expert Meeting on Procedural Safeguards for Securi
76
-ty Detention on Non-international Armed Conflict, I.R.R.C. Vol. 91 Issue 876 (December 2009), p. 863.
ICRC, Commentary on the Convention (III) Relative to the Treatment of Prisoners of War of 12 August 1949, 1960,
77
p. 37.
Serdar Mohammed HC, supra note 6, para. 252.
78
See for example Kreß, Some Reflections on the International Legal Framework Governing Transnational Armed
79
Conflicts, Journal of Conflict and Security Law (2010) Vol. 15 No. 2, p. 263 (hereafter ‘Kreß, Some Reflections’);
Sivakumaran, The Law of Non-International Armed Conflict, supra note 31, p. 301. Serdar Mohammed CA, supra note 8, para. 214.
The essence of the argument is well resumed by J. K. Kleffner:
“That operational detention for security reasons is also permissible logically follows from the fact that members of the armed forces may be directly attacked and that civilians directly participating in hostilities lose their protection from direct attack. Since such direct attacks allow for the use of potentially deadly force, the lesser means of putting such persons hors de combat by detention is equally lawful.” 81
The UK High Court found against this proposition, ruling that the authority to kill could only serve as a basis to arrest SM but not to detain.
What strikes at the reading of the case is that the Court adopted a strictly law-enforcement position. According to it, the only period during which an insurgent can be attacked is when he constitutes an imminent threat.
In other words, the Court relied exclusively on a conduct-based targeting approach and therefore concluded that, upon capture, a fighter is not an imminent threat anymore so lethal force can no longer be used against him and ceases to serve as a basis to detain.
For the same reasons as exposed in Section II)A), there is no express legal basis for status-based killings in CA3 or APII. To compare, article 43(2) API authorises members of the armed forces to “participate directly in hostilities” (combatant privilege). 82
Can an authority to use lethal force be derived from the structure and logic of IHL? Does such an authority exist in customary international law? The rules about conduct of hostilities applicable in IACs have attained customary status and are now applicable as well in NIACs. Parties to a NIAC can directly target “combatants” (in its general meaning).
Working as a corollary, the principle of distinction shields civilians from direct attack. In its 2005 Study on Customary International Humanitarian Law, the ICRC noted that state practice shows that the principle of distinction is a rule of customary law applicable in both international and non-inter-national armed conflicts . It is also contained in Article 13(2) APII . 83 84
The term “combatant” is used as a generic term to encompass individuals who do not enjoy the pro-tection against attacks accorded to civilians. It does not grant combatant status or POW status. According to Rule 6 of the same study, civilians are protected against direct attack unless and for such time as they take a direct part in hostilities . Article 13(3) APII reiterates this. 85
Kleffner, Operational Detention and the Treatment of Detainees, supra note 43, p. 471 (25.03 (2)).
81
API, Art. 43(2).
82
ICRC, Customary IHL Study, supra note 50, Rule 1: “The parties to the conflict must at all times distinguish between
83
civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civil-ians”, p. 3.
APII Art. 13(2) reads “The civilian population as such, as well as individual civilians, shall not be the
84
object of attack”.
ICRC, Customary IHL Study, supra note 50, Rule 6, p. 19. See also Inter-American Commission on Human Rights
85
18-11-1997, Case 11.137 (Juan Carlos Abella v. Argentina), para. 189: “the persons who participated in the attack on the military base were legitimate military targets only for such time as they actively participated in the fighting”. Also, the Israeli Supreme Court recognised its customary nature in Public Committee Against Torture in Israel v. Government
State armed forces are not civilians. Regarding members of organised armed groups, the practice is unclear and treaty law does not expressly clarify it. 86
The ICRC offered an answer in its DPH Guidance . It brought to light the drawbacks of conside87
-ring organised armed groups as civilians who - by virtue of Rule 6 - lose their protection from at-tack when they are carrying specific hostile acts (DPH). Under such view, civilians DPH can only be targeted on the basis of their conduct.
It would lead to an imbalance where State armed forces are subject to attacks at all time whereas insurgents become legitimate military targets only and for such time as they are DPH. The inade-quacy of such a targeting regime led to the famous statement that insurgents would be enticed to act as farmers by day and fighters by day.
As a consequence, States could remedy such asymmetry by disregarding IHL rules.
Other suggest that insurgents are civilians with a continuous DPH. Hence, they would lose protec-tion from direct attack for the entire duraprotec-tion of their membership in the organised armed group. Be it this theory or the previous one, considering insurgents as civilians creates “parties to NIACs whose entire armed forces remain part of the civilian population” . 88
It is inconsistent with the wording of CA3 and APII. Members of armed forces and civilians are two “mutually exclusive categories” . While civilians may take part in conflict on a “merely sponta89
-neous, sporadic, or unorganised basis” , State armed forces and organised armed groups are capa90
-ble of carrying out “sustained and concerted military operations” . 91
To remedy this inequality and conflation, it is more rational to consider organised armed groups as the armed forces of the non-state parties to NIACs. The ICRC developed the criterion of “continu-ous combat function” to determine individual membership. CCF has be defined as a “continu“continu-ous function for the group involving his or her direct participation in hostilities” on behalf of the non-92
state party.
Through lasting integration into the OAG, its members cease to be civilians and lose the protection from direct attack for as long as they remain members by assuming a CCF.
The idea of “combatant” is therefore defined through a functional approach of membership. Treating OAG as armed forces is in line with CA3 which rules that “each party to the conflict” must afford protection to “persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat”. Thus, one can find armed forces on each side of the conflict.
ICRC, Customary IHL Study, supra note 50, Commentary on Rule 5, p. 19.
86
ICRC, DPH Interpretive Guidance, supra note 61. The guidance considers who is considered a civilian for the pur
87
-pose of the principle of distinction, what conduct amounts to direct participation in hostilities and what modalities gov-ern the loss of protection against direct attack.
Ibid, p. 28.
88
ICRC, DPH Interpretive Guidance, supra note 61, p. 21.
89
Ibid, p. 34.
90
APII Art. 1 para. 1.
91
ICRC, DPH Interpretive Guidance, supra note 61, p. 33.
Under the CCF approach, rebels can be targeted on their status alone (member of OAG) and do not need to pose an imminent threat to the opposing belligerents for such operation. As an ICRC Com-mentary stated, “those who belong to armed forces or armed groups may be attacked at any time” . 93
Serdar Mohammed was a Taliban fighter. His capture and detention did not extinguish the authority to kill him but suspended it . SM did not become a civilian upon his capture. His affiliation to the 94
OAG did not terminate but perpetuated albeit “upon the contingency” of release. Conclusive disen-gagement is needed in order to end the membership. SM’s detention did not equal to “reintegration into civilian life” or “permanent resumption of exclusively non-combat function”.
Therefore, the authority to use lethal force remained in place and served as a basis to detain. The construction of Article 4 APII also attests to the accuracy of the CCF theory. The use of “per-sons” to define those who are entitled to humane treatment once they have ceased to take part in hostilities means that armed forces are referred to. The a contrario consequence is that they can be status-based targeted when they are not hors de combat . 95
Following the principle of equality, does it mean that organised armed groups also have the power to kill? The principle of combatant privilege does not apply in NIACs but members of OAGs do not violate IHL when they kill, wound or detain members of the opposition. However, they may be vio-lating domestic law. While they are immune from prosecution for lawful acts of war under IHL, they remain liable for domestic prosecution for raising their arms against the State.
Logic also calls for such a finding. Status-based (member OAG) targeting is not authorised in IHRL. Advocating the absence of authorisation to status-based target in IHL leads to the prevalence of the more restrictive IHRL standard by virtue of lex specialis, under which use of lethal force would only be lawful if absolutely necessary. To prevent the application of this law enforcement paradigm and thus the “emasculation” of IHL, it is necessary to cease labelling IHL as a solely re-strictive body. Be it for military necessity or the authority to kill, they permeate the whole body of IHL. They are double-edged swords: they allow some actions and limit others.
To conclude, IHL contains the authorisation to kill “combatants”. The a fortiori argument goes as follow: as a lesser mean of weakening the enemy, an authority to detain can be inferred from the authority to use lethal force. The outcome of Justice Leggatt’s finding is that British armed forces would have had to release and kill SM or release and let him run thus giving the former an incentive to kill. Under the CCF approach, the alternative is kill or detain.
Status-based targeting is in keeping with the “humanitarian” side of IHL by shielding civilians not DPH and with the interdiction to give no quarter.
If the Court of Appeal had stuck to its finding that IHL entails status-based distinctions, it would have come to the same conclusion.
K. Mačák argued that inferring the legal basis to detain from the authority to kill is limited: “some individuals may pose a security threat to a party to a conflict without directly participating in the
ICRC, Commentary on the Additional Protocols, supra note 31, para. 4789.
93
ICRC, Customary IHL Study, supra note 50, Rule 47.
94
It can be said that the drafters of APII intended to mirror the privilege afforded to combatants in IACs i.e the authori
95
hostilities” . Hence, these individuals are detainable but not targetable. In the case under our scru96
-tiny, the PIL claimants were detained because they were “suspected of involvement in the funding of the insurgency” . Hence, for them, the “a fortiori argument” would not suffice to justify their 97
detention. However, they can be detained by way of analogy with the detention framework applica-ble in IACs. The detention of persons who pose a security threat to is also part of the logic of IHL, as evidenced by its inclusion in GCIV. These individuals do not need to be “members” of the oppo-sition.
I submit that a legal basis to detain can be inferred from the authority to kill and also - with a wider scope- from the purpose/end of IHL. Those who cannot be detained under the former argument, fall under the scope of the second one.
This study has exposed that detention is an “incident of waging war” . It “flows from the logic of 98
IHL that parties to a conflict may capture persons deemed to pose a serious security threat and that such persons may be interned as long as they continue to pose a threat. Otherwise, the alternatives would be to either release or kill captured persons” . 99
4. Solutions to the obstacles raised by the English High Court:
Justice Leggatt denies the existence of a power to detain for security purposes related to the armed conflict under IHL because it would simultaneously confer such power on both States and armed rebel groups by virtue of the principle of equality of the parties to the conflict. According to him, the latter option is “anathema to most states which face a non-international armed conflict on their territory” . 100
Equality of the Parties is a cornerstone principle of IHL. However, its practical meaning is difficult to grasp due to its vagueness. Equality with reference to what? The different understandings of the principle of equality that one can find in the literature do not include the same criteria in such a principle. While they all agree that the principle of equality requires parties on both sides of a con-flict to be afforded the same degree of protection (humane treatment), the bone of contention relates to rights.
According to the UK High Court, the principle of equality requires IHL to confer on both States and non-state armed groups the same rights and obligations.
Following a symmetric distribution of rights, interpreting IHL as providing a power to detain would confer upon both States and non-state actors such a power. The court rejected an interpretation of IHL granting non-state actors the right to detain on the basis of the reluctance of States - as drafters - to give the latter legal recognition.
Mačák, A Needle in a Haystack, supra note 45, p. 6.
96
Serdar Mohammed CA, supra note 8, para. 12.
97
Goodman, The Detention of Civilians in Armed Conflict, Am. J. Int’L L. Vol. 103 (2009), pp. 57-58.
98
ICRC, 2008 Expert Meeting, supra note 76, p. 863.
99
Serdar Mohammed HC, supra note 6, para. 245.
Arguing that the “symmetric objection stretches the principle of equal application too far” , some 101
scholars adopt a narrow interpretation of the principle of equality. According to S. Aughey and A. Sari, “states resisted creating the impression that they were recognising any belligerent rights for NSA or conferring a belligerent status on them” and the implicit existence of a right to detain for States does not require them to extend the same right to non-State actors.
They reject an authority to detain for non-state actors because it would give the latter legal recogni-tion. However, they are at ease with conferring under IHL a power to detain to the government side
only because it cannot be said that State relinquished such a right. But this theory has a major
short-coming: it deprives the principle of equality of the parties to the conflict of any substance. My position meets halfway between these two theories.
Contrary to the narrow interpretation of the principle of equality, it proposes to give to this principle its crux back by upholding a symmetric distribution of rights and thus agrees with Justice Leggatt 102
in this respect. As summarised by the ICRC, “deletion from the text of all mention of “parties to the conflict” only affects the drafting of the instrument” which ultimately “grant[s] the same rights and impose the same duties on both the established government and the insurgent party” . 103
On the other hand, I draw a different conclusion from the equality of rights. My position diverges from the Court’s opinion in that it recognises an authority to detain for both States and rebel armed groups . The Court’s opinion rests upon the idea that rights work in equipoise with status: if the 104
non-state actors are given rights, they subsequently acquire legal recognition and belligerent status. However, I propose to disentangle rights and status.
The more logical position is that IHL gives to both States and non-state actors a power to detain - therefore reflecting the realities on the ground.
First, States were well aware of the fact that non-state actors would in practice detain. Detention by non-state actors was foreseen and accepted by the drafters.
The travaux préparatoires of CA 3 and AP II support this finding. The scope of article 5 APII (arti-cle 8 in the draft) was understood by the participants as encompassing “all persons whose liberty has been restricted, [including] persons interned without judicial proceedings” . Besides, States 105
delegates expressly mentioned detention by rebels when they dealt with Articles 5 and 6 APII.
Aughey & Sari, Targeting and Detention, supra note 55, p. 94.
101
Mačák, A Needle in a Haystack?, supra note 45, p. 13: “if there is a legal basis to detain arising from IHL, it must
102
be equally available to all parties”.
ICRC, Commentary on the Additional Protocols, supra note 31, para. 4442.
103
According to the ICRC, 2008 Expert Meeting, supra note 76, it is a “direct consequence from the principle of equal
104
-ity of rights and obligations”, p. 870. See also Sivakumaran, The Law of Non-International Armed Conflict, supra note 31, pp. 242-43, “the principle holds that all parties to an armed conflict have the same rights and obligations as a matter of law” and is “fundamental to international humanitarian law, including the international humanitarian law of non-in-ternational armed conflict”.
Official Records, supra note 32, Vol. VIII CDDH/I/SR.33, para. 17 (ICRC Representative, Mrs. Bujard). See also
105
the manifest approval by Italy para. 18. See also ICRC, Commentary on the Additional Protocols, supra note 31, para. 4568.
For instance, India regretted that some provisions of article 5 APII “could not be implemented by
all forces concerned” while the USSR asked for reality to be taken into account so that “the arti106
-cles could be observed by all Parties to the conflict” . 107
Even more compelling, no delegate raised the argument that detention by either States or non-state actors is unlawful under IHL. Therefore, it seems that giving a right to detain to rebel armed groups is not abhorrent to States.
Although a power to detain does not need to be bestowed on non-state actors for States’ soldiers to be treated humanely because the legality of detention does not affect the applicability of minimum human standards, conferring such a power gives insurgents an incentive to respect IHL.
Secondly, even if one considers that non-state parties are given the authority to detain, their legal status does not change: they are not recognised as state entities. The implicit nature of such authori-ty is a key element in that it dashes any formal legal recognition.
“Each party” was deleted from APII at the Diplomatic Conference because states were “concerned with affording NSAG recognition and not because the Protocol was intended to bind states
alone” . 108
CA3 paragraph 4 expressly conserves any inequality of status pre-existing.109 At best, non-state ac -tors are acknowledged as the other side of the conflict which will in practice detain. They cannot draw any legitimacy by the fact that they are given rights and obligations.
CA3 and APII do not confer international legal recognition on belligerency even implicitly and leaves intact the legal relationship between the parties and “neither [of them] has ever been used for the purpose of claiming recognition” . Also, they do not confer either combatant or POW status 110
and their corollary belligerent immunity . 111
Importantly, by remaining non-state actors, their prosecution under domestic law for raising arms against the State (even though they have not infringed IHL) persists.
In sum, it is necessary to distinguish equality of rights and obligations and equality of status. The former does not entail the latter. The legal basis to detain under IHL is equally available to all par-ties but it does not affect the legal relationship between them. It is not the parpar-ties which are equal but their obligations and rights.
Corroborating, the 2008 ICRC Expert Meeting stated that “it flows from the practice of armed conflict and the logic of IHL that parties to a conflict may capture persons…” [own emphasis]. 112
Official Records, supra note 32, Vol. VIII CDDH/I/SR.32, para. 87.
106
Ibid, Vol. VIII CDDH/I/SR.32, para. 73. See also Vol. VIII CDDH/I/SR.32, para. 71 (Canada).
107
Sivakumaran, The Law of Non-International Armed Conflict, supra note 31, p. 236.
108
CA3 para. 4 reads: “the application of the preceding provisions shall not affect the legal status of the Parties to the
109
conflict”.
ICRC, Commentary on the Additional Protocols, supra note 31, paras. 4439-4440.
110
Ibid, para. 4441.
111
ICRC, 2008 Expert Meeting, supra note 76, p. 863.
Secondly, the UK Court refused to read an implicit power into CA3 and APII “unless it is possible to identify the scope of the power” . It rightly raised the question considering that the principle of 113
legality requires any action to be based on grounds (substantive aspect) and in conformity with pro-cedures (procedural aspect) . These aspects must therefore be easily accessible in a valid legal 114
norm.
This author concedes that CA3 and APII, although anticipating that States and non-state actors will detain, do not tackle the issue of the grounds and procedures for detention. They merely require humane treatment. Nonetheless, it will be argued that GCIV provides a suitable “reservoir” whence to borrow grounds and procedures for detention.
Justice Leggatt gave two reasons why grounds and procedures pose “intractable problems” in the 115
context of non-international armed conflicts. It is in no doubt that in such conflict, it may be diffi-cult to differentiate between “combatants” and civilians and that hostilities may have an uncertain duration and unclear ending. However, grounds and procedures which accommodate these charac-teristics are not beyond the bounds of possibility.
Indeed, the Court wrongly only considered the scheme provided for by GCIII (prisoners of war) which turns out to be unsuitable for NIACs.
The High Court only mentioned the GCIV civilian internment frame without really gauging its me-rits. Its application, as a matter of policy, has been advocated by the ICRC in its 2012 Background Paper and by scholars . 116 117
GCIV sets up a conduct-based approach of detention triggered by “imperative reasons of security” . 118
Determining what types of conduct pose security threats is left to the discretion of States/non-state actors. The 2008 Expert Meeting elaborated a two-tiered test to avoid too permissive determination and thus abuse . First, it must be assessed whether, “on the basis of his/her activity (which as such 119
is not necessarily criminally prosecutable), it is highly likely that the individual will commit further acts that are harmful to the interning Power and/or to those whom the interning Power is mandated to assist or protect”. Secondly, it must be determined “whether internment is necessary to neutralise the threat posed.”
Serdar Mohammed HC, supra note 6, para. 246.
113
Pejic, Procedural Principles, supra note 2, p. 383.
114
Serdar Mohammed HC, supra note 6, para. 247.
115
ICRC, Strengthening Legal Protection, supra note 2, p. 13.
116
See Deeks, Administrative Detention, supra note 2; Mačák, A Needle in a Haystack?, supra note 45, pp. 12-13.
117
According to Art. 78(1) GCIV, if the Occupying Power considers it necessary, for imperative reasons of security, it
118
may subject them to internment. Also, Art. 42(1) GCIV authorises internment “if the security of the Detaining Power makes it absolutely necessary”. See Deeks, Administrative Detention, supra note 2, p. 407; Bellinger III & Padmanab-han, Detention Operations in Contemporary Conflicts, 105 Am. J. Int’l L. 201 2011, p. 220 (hereafter ‘Bellinger & Padmanabhan, Detention Operations’); Pejic, The Protective Scope of Common Article 3, I.R.R.C Vol. 93 No. 881 March 2011, pp. 208-09 (hereafter ‘Pejic, Protective Scope’); Pejic, Procedural Principles, supra note 2, p. 380.
ICRC, 2008 Expert Meeting, supra note 76, p. 865.
