An important case in the United Kingdom (Serdar Mohammed v. Defence) and a major statement by the UN Human Rights Committee (General Comment 35) come to the wrong legal conclusion: they both suggest that the laws of war fail to regulate the grounds for detention in non-international armed conflict. On that view, the law here has nothing significant to say about who may be confined and for what status or behavior.
I have now published an article in the Naval War College’s International Law Studies that critiques that legal conclusion. The article discusses the multiple ways in which the laws of war regulate detention in internal armed conflict. In that respect, it is an elaboration of my earlier post at Just Security. In that post, I also promised a subsequent analysis outlining the perverse and unintended consequences of the framework set forth in the U.K. High Court decision. The ILS article also includes my views along that front.
Some commentators might have thought to celebrate the decisions of the U.K. court and the U.N. Committee on the theory that a gap in the law of armed conflict (LOAC) would be filled by human rights law. I have significant doubts and concerns about that perspective and that approach to the law regulating warfighters. For a flavor of my views, here is an excerpt of the ILS article (sans footnotes):
V. Perverse Effects and Unintended Consequences
In this Part, I consider some of the consequences of accepting the Mohammed framework.
First, the logic of the Court’s analysis potentially undercuts the LOAC regime. It introduces incoherence into the system by suggesting that LOAC can bestow an affirmative authority absent domestic law. And it flips the relationship between States’ freedom of action in internal conflicts (where sovereignty is at its zenith) with States’ freedom of action in international armed conflicts. That is, States would be authorized to carry out certain actions in international armed conflicts but not internal armed conflicts.
Second, the Court’s reasoning is based on a premise that detention is, in fact, authorized by LOAC, albeit in international armed conflicts. For example, the opinion finds authorization in Article 21 of the POW Convention and presumably in the internment provisions of the Civilians Convention. Surely many human rights advocates and organizations would argue that even in an international conflict, LOAC does not provide the source of authority for detention, and that authority must be found in domestic law (or perhaps Security Council resolutions). The Mohammed judgment now stands in their way.
Third, as part of its reasoning, the Court suggests that no LOAC procedural protections apply to detention in NIAC. On that view, one would have to convince warfighters that they should respect the ICCPR and the like, not the Geneva Conventions or laws of warfare. In many cases that would be a difficult proposition (to say the least), and victims of armed conflict would pay a price. As a corollary, it would also mean there is no war crime of unlawful confinement in NIAC (now or presumably as a matter of lex lata in the foreseeable future).
Fourth, the Court suggests because LOAC does not provide lawful grounds for detention of enemy fighters in NIACs, such detention would not be permitted through derogation under international human rights law either. The Court reasons that a derogation might be acceptable only in the case of an express “obligation” for detaining POWs in international armed conflict. And the Court suggests that any outcome that provides for security detentions in NIACs may be anathema to rule-of-law values. Thus not only would States be unable to detain enemy fighters when invited by a host State to help stop a genocidal armed group, but that legal incapacity to detain would seemingly apply across all NIACs. Indeed, the Court’s statements suggest that the European Convention on Human Rights would preclude such detentions even if domestic law authorized them. Surely States would not accept or respect such an international legal regime.
Finally, the Court’s limited acceptance of the government’s logic that the power to kill includes the power to detain is problematic. That logic—imagine two concentric circles of the power to kill and to detain—applies only to members of armed forces and civilians who directly participate in hostilities. It does not apply to civilians who indirectly participate in hostilities—such as security threats under articles 5, 27, 41–43, and 78 of the Civilians Convention. Those individuals are not lawful targets unless they directly participate in hostilities. The notion that the greater power includes the lesser power thus does not apply to those individuals’ situation. And, in Mohammed in particular, it is notable that the PIL Claimants included individuals who fall into that category. I thus do not see the logic in the notion of coextensive detention and targeting authority set forth by Sean Aughey and Aurel Sari in the current volume of International Law Studies.