As Ryan recently reported, the United Kingdom’s High Court of Justice has issued an important ruling in Serdar Mohammed v. Ministry of Defense. The Court ruled that the long term detention of a suspected Taliban commander (and three others) by UK ISAF forces in Afghanistan violated the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention). In doing so, the Court provides a detailed and sophisticated analysis of the interplay between international human rights law (IHRL) and international humanitarian law (IHL). One important question confronting the Court was whether IHL authorizes the detention of certain categories of individuals in time of armed conflict. The Court concludes that IHL provides no such authorization in non-international armed conflicts (NIACs).

In this post, I summarize and assess the Court’s reasoning on this issue. I also argue that the Court’s core claims here (1) could be bolstered even further by at least two unexplored arguments; and (2) should be extended to apply in international armed conflicts as well.

In Mohammed, the UK Ministry of Defense had argued that IHL itself provides a legal power to detain certain categories of persons in time of armed conflict. This issue was nested in the larger debate about whether IHRL applied to the ISAF detentions in Afghanistan. The UK’s full position was that IHL provides the legal basis for long term detentions in the NIAC in Afghanistan and that IHL displaces or qualifies the IHRL rules governing detention. I will address this larger claim about IHL displacing or qualifying IHRL in a future post (see my earlier more general post on the topic, here and here). Note, for now, that it is deeply related to whether IHL authorizes detention. The Court, as noted above, rejected these claims (para. 228 et seq.). Importantly, the Court did not reject the argument by denying the applicability of IHL. Indeed, the Court concludes that the conflict in Afghanistan was, during the relevant period, a NIAC within the meaning of Common Article 3 of the Geneva Conventions (paras. 229-231). The Court, instead, rejected the claims as fundamentally unfounded. Five reasons are offered by the Court to justify its conclusion that IHL does not authorize detention in NIACs.

First, the Court argued that IHL governing NIACs—Common Article 3 of the 1949 Geneva Conventions and the detention related provisions of Additional Protocol II of 1977—failed to expressly authorize detention. In the Court’s view, the drafters of the treaties would have done so expressly had they intended to authorize warring parties to utilize long term detention. Importantly, the Court contrasts the rules applicable in NIACs to Article 21 of the Third Geneva Convention of 1949 which recognizes the power to intern prisoners of war (para. 242). This point is persuasive, though the distinction between the POW detention provision and the NIAC provisions is not as compelling on close inspection as it seems at first blush. As I explain more fully below, Article 21 of the POW treaty, when read in context of the full treaty, should not be understood as an explicit authorization to intern—and several of the Court’s subsequent points regarding NIACs apply with equal force to the POW treaty’s detention provisions.

Second, the Court rejects the claim that IHL governing NIACs impliedly authorizes detention simply because it plainly “contemplates” detention of certain categories of persons. The Court points out that provisions requiring fundamentally humane treatment of persons detained in armed conflict do not provide a legal basis for any such detention in the first place. These provisions, the Court insists, imply only that the treaty makers understood the “factual reality” that many persons would be detained in time of armed conflict (para. 243). This point is compelling and is a point often overlooked in debates about IHL detention rules.

Third, the Court points out that the clear purpose of IHL is inconsistent with the idea that its protections establish a power to detain. The purely humanitarian purpose of establishing minimum guarantees for detainees in time of armed conflict strongly suggests that the rules are intended to apply irrespective of whether there is an adequate legal basis for the detention. The point here is that the treaty makers were not establishing a legal framework only for those detained for good reasons—in many respects, they are providing important minimum protections for those who might predictably be detained without any adequate legal basis. It is those cases, after all, in which minimum humanitarian guarantees would be most needed (para. 244). Once again, I agree with the Court’s conclusions though the analysis soft-pedals the true force of this insight. IHL’s minimum treatment rules are best understood as a response to humanitarian catastrophe all too often associated with extra-legal, affiliation-based detention in armed conflicts. It would be perverse to interpret such rules as establishing an affirmative power to detain.

Fourth, the Court suggests that states could not have intended for IHL governing NIACs to authorize detention because such a power to detain would extend to non-state armed groups engaged in armed conflicts with states (para. 245). This is an important point—and one that is likely to have some considerable political traction. It also underscores a deeper defect in the UK government’s claim. Any interpretation of IHL as affirmative authorization—whether it be an asserted authorization to detain or kill—must grapple with the fundamental commitment in IHL to the equality of the parties (suggesting that all sides to the conflict are assigned the same rights and obligations) and the strict separation of jus ad bellum (rules regulating when war can be lawfully fought) from jus in bello (IHL—regulating how wars must be fought). Both commitments, when applied to any supposed authorization to detain or kill, imply that even repudiated parties who fight for manifestly unlawful reasons enjoy the affirmative authority to kill, capture, and detain.

Fifth, the Court maintains that IHL governing NIAC could not be interpreted to establish a power to detain because this law utterly fails to define the scope of that power. The Court points out that neither Common Article 3 nor Additional Protocol II define the category of persons subject to detention, the procedures that must attend such detention, or the duration of such detention (para. 246). This point is very compelling—particularly in the context of NIACs.

Two further issues are addressed by the Court. Following its analysis of treaty-based IHL applicable in NIACs, the Court goes on to assess whether customary IHL authorizes detention in this context. In the end, the Court finds no evidence suggesting a custom-based authorization that would overcome the five defects it identified in the treaty-based claim. The Court also considers the Ministry of Defense’s claim that the power to kill in IHL necessarily implies the lesser power to detain. Although the Court somewhat surprisingly accepts the premise of this argument, the Court concludes that this claim suggests only that states are permitted to capture persons posing a direct and imminent security threat to government forces.  Presumably, this argument would also justify short term detention as well—though the Court unfortunately leaves the nuances of this issue unexplored. I will have a future post addressing this issue in isolation—since it merits sustained reflection and its ultimate merits are beyond the scope of the larger points I want to make about the decision.

Allow me to close with two global observations on the Court’s analysis. First, although the Court’s reasoning is strictly limited to NIACs, much of its analysis applies with equal force in international armed conflicts (IACs). IAC detention rules are also essentially minimum guarantees for detainees/internees. The best reading of such rules is that they permit detention (or, in the case of POWs, internment), but do not authorize it. The rules regulating IACs have the same humanitarian purpose as rules applicable to NIACs. The only IAC rule expressly authorizing detention is Article 21 of the POW treaty mentioned above—and expressly cited by the Court. This rule, though, is best understood as a prohibition of one form of confinement (“close confinement” or detention)—intended as a humanitarian protection for a group of persons that will predictably be subjected to capture and confinement by the enemy. And, more fundamentally, the POW treaty does not specify any procedure for persons to challenge their classification as a POW. The hearings mandated by Article 5 of that treaty in all cases of doubt are required only where the detaining authority seeks to strip the prisoner of their POW status. In other words, the treaty establishes a presumption in favor of such status and provides NO procedure for the prisoner to deny the status. There is much more to say here. The point, for now, is simply that most (and arguably all) of the Court’s reasoning applies with equal force to IACs.

Second, some structural IHL regime elements further bolster the Court’s conclusion. I’ll mention two quickly. (I develop the following points further in my chapter “The Applicability of Human Rights in Time of Armed Conflict,” in A. Clapham & P. Gaeta, Oxford Handbook of International Law in Armed Conflict (OUP 2014)). As I mentioned above, IHL requires a strict separation of the jus ad bellum and jus in bello. The scope and content of applicable IHL does not turn on whether either party unlawfully initiated the conflict. This commitment makes clear that IHL is a second-order or second-best humanitarianism. For the purposes of the issue under consideration here, the upshot is that IHL would authorize detention (and killing) by even that party that had no right to participate in the conflict in the first place. Second, the notion of an “armed conflict” as a de facto trigger for IHL—as well as the contemporary move for ever wider application of IHL for humanitarian purposes—are impossible to square with the suggestion that IHL affirmatively authorizes detention. In debates about the scope of application of IHL in 1949 and 1977, there were no humanitarian-based worries about the over-application of IHL. No concerns expressed that the application of the rules might itself carry draconian consequences for the victims of armed conflict. All this strongly suggests that the Court’s intuitions about the intentions of IHL treaty makers are more accurate than they might seem at first glance.

Several aspects of the High Court’s ruling are important and merit close examination. In this post, I consider one of these issues—though this one issue has broad significance for debates about applicable law in time of armed conflict. Look for much more, from me and others, on the opinion and its significance on Just Security in the coming days.