Much has already been written on the authority to detain in non-international armed conflicts (NIACs) (see here, here, and here for recent posts). So much so, in fact, that it seems hard to find something new, not to mention useful, to say. However, there is at least one issue that was not analyzed by Justice Leggatt nor by the Court of Appeal in its recent Serdar Mohammed judgment, and which has a direct impact on the legal regulation of detentions in NIACs: the possible practice of detainees challenging their grounds of detention before the courts of armed opposition groups (AOGs).

By affirming that the basis for deprivation of liberty is found in States’ domestic laws, these decisions imply that an armed opposition groups, in principle, could never carry out those actions according to law. Their courts, in consequence, will never be able to demonstrate that the detention was not arbitrary.

Serdar Mohammed: No Authority for Detentions by AOGs in NIACs

A few weeks ago, the UK Court of Appeal upheld what the High Court of England and Wales decided last year, stating that international humanitarian law (IHL) does not provide legal power to detain in the context of NIACs. In this sense, the Court affirmed that

Despite that force, we have concluded that in its present stage of development it is not possible to find authority under international humanitarian law to detain in an internationalised non–international armed conflict by implication from the relevant treaty provisions, Common Article 3 and APII. As to customary international law […] we do not consider that it is possible to base authority to detain in a non-international armed conflict on customary international law.

But what are the practical consequences of this view? It means that in a NIAC between a State and an armed opposition groups taking place in the territory of that State, only governmental authorities could potentially detain individuals for reasons related to the conflict and always under the applicable domestic legislation. IHL could only begin to apply after the detention has already begun, focusing on the treatment of the detainees. At first glance, such a situation seems logical since most (if not all) States would hardly recognize in any international framework the possibility that armed opposition groups, that are not under their control and in an armed struggle against them, would be able to exercise the exclusive power of a sovereign State within that same State’s territory. When analyzed from a domestic law perspective, detentions by such groups in NIACs are generally contrary to national legislation, implying that their members remain at all times subject to criminal law and may be prosecuted for their breach. In fact, generally, armed opposition groups’ mere existence is already contrary to these legal frameworks.

Still, this situation does not exclude the application of IHL, and its separation from domestic law does not address certain questions. Mainly, there appears to be a “negative” relationship between the armed opposition groups’ unlawful domestic character and the absence of an explicit possibility to detain or kill in IHL applicable in NIACs. In international armed conflicts (IACs), States have accepted these actions during hostilities, but in NIACs they do not seem prepared to accept that their own citizens can use certain legal authority against other citizens, a perfectly logical position. Ultimately, this issue derives from an equality problem. While in IACs States recognize themselves as equals and understand that leaving aside any consideration of the legality of the use of force all of them may detain on the basis of IHL, in NIACs there is a differentiation based on domestic law.

Yet, even from this perspective, some problematic issues may be raised. This is the case with respect to the possibility granted by IHL to armed opposition groups to set up courts respecting certain judicial guarantees, in particular the writ to habeas corpus.

The Legal Basis for AOG Courts

It is recognized that IHL creates equal obligations upon States and armed opposition groups. In the context of NIACs, they are bound by Common Article 3 (CA3) and Additional Protocol II (AP II) of the Geneva Conventions — taking into account AP II’s more restricted scope of application — and by customary IHL. All of these sources contain specific provisions regarding the application of justice by armed opposition groups.

CA3 affirms that “the passing of sentences and the carrying out of executions without previous judgments pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized people” is prohibited with respect to persons taking no active part in the hostilities.

AP II develops and supplements CA3 without modifying its conditions of application. In this regard, Article 6 (2) complements CA3 by including several standards based on the more rigorous provisions of Geneva Convention III and Geneva Convention IV, and also from the International Covenant on Civil and Political Rights (ICCPR), particularly Article 15 (see here). As its commentary affirms, Article 6 (2) applies equally “to civilians and combatants who have fallen in the power of the adverse party and who may be subject to penal prosecution.” This provision also requires that “[n]o sentences shall be passed and no penalty shall be executed on a person found guilty of an offence except pursuant to a conviction pronounced by a court offering the essential guarantees of independence and impartiality.” In addition, it affirms that a convicted person “shall be advised on conviction of his judicial and other remedies and of the time-limits within which they may be exercised.”

Both CA3 and AP II have a direct bearing on our inquiry: They unequivocally grant armed opposition groups the possibility to “regularly” constitute courts (or whatever body is entrusted to fulfill such judicial functions) and to “legislate” in order to meet the judicial guarantees component. The requirement for a fair trial in NIACs has also been affirmed by the ICRC Customary IHL Study. By recognizing this possibility, States have explicitly recognized armed opposition groups’ legal capacity to run a parallel “non-state legislative” and judicial system outside of and independent from the State’s regular authority.

Yet, IHL does not actually oblige armed opposition groups to set up courts. It merely regulates their creation and procedures if these non-state entities decide to convene them, which should be done while at the same time satisfying the above-mentioned fair trial guarantees. But certainly even if proper tribunals are not constituted, other quasi-judicial bodies can also carry out their functions so long as they respect the judicial guarantees included in CA3. This is related to the notion of administration of justice, which is a State function par excellence. Since armed opposition groups do not always reach a high degree of organization, they will not always have the capacity to fully implement judicial guarantees. The exception, clearly, would be armed opposition groups exercising long-term control over a territory, granting them the possibility to develop State-like institutions, including a judiciary. IHL, nevertheless, still binds these entities to respect certain safeguards in NIACs.

This scenario seems to follow what Professor of IHL Marco Sassòli, has called a “sliding scale of obligations.” In his words, “[t]he better organized an armed group is and the more stable control over the territory it has” the more rules of IHL that would be applicable. One could expect from a highly organized armed opposition groups a higher degree of respect for international obligations with regards to fair trials guarantees. Nevertheless, a minimum “recognized as indispensable by civilized people” should always be respected.

Challenging the Lawfulness of Detention Before AOG Courts

Generally speaking, a prohibition on arbitrary detention may be derived of the judicial guarantees enshrined in CA3. In fact, by making an explicit reference to international human rights law, Jean–Marie Henckaerts and Louise Doswald-Beck recognize in the ICRC Customary IHL Study that under the customary IHL of NIACs arbitrary deprivation of liberty is prohibited. They affirm that there should be a valid reason for the deprivation of liberty and that the following procedural requirements should be fulfilled: 1) an “[o]bligation to inform a person who is arrested of the reasons for arrest,” 2) an “[o]bligation to bring a person arrested on a criminal charge promptly before a judge,” and 3) an “[o]bligation to provide a person deprived of liberty with an opportunity to challenge the lawfulness of detention.” As Sassòli and Laura Olson explain, the latter refers to the “so-called writ of habeas corpus.”

All these elements are important in order to prevent indefinite detentions, and some of them have been included in different international instruments, such as the Turku Declaration (Articles 4 and 11), the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (Principle 32) and the Copenhagen Principles applicable in NIACs (Principle 12). Moreover, practice by armed opposition groups also includes similar provisions. For instance, in the courts established by the Liberation Tigers of Tamil Eelam of Sri Lanka, the writ of habeas corpus was actually confirmed as being fully applicable by the “legal chief” of that group. Also, certain special agreements concluded between armed opposition groups and States address this issue similarly (here for a further analysis). For instance, in the Comprehensive Agreement between Philippines and the National Democratic Front of the Philippines it was recognized not only that the requisites of the due process should be respected, but also that relatives and duly authorized representatives of a person deprived of liberty for reasons related to the armed conflict had a right to inquire about the reasons for the detention.”

Indeed, one way in which judicial or other supervision of detention may be exercised is by means of a petition aimed at challenging the lawfulness of detention. According to ICRC Legal Division head Knut Dörmann, this is related to the right to be informed, and based on the Procedural Principles and Safeguards for Internment and Administrative Detention of the ICRC. While not being “explicitly provided for in NIAC, it can be seen as an element of the obligation of humane treatment applicable to internment in all situations of armed conflict.” The ICRC, however, refers in that document to Article 9 (4) of the ICCPR. In any case, its objective is to ensure that the deprivation of liberty was carried out according to the grounds established by law. Logically, if States have accepted this state of affairs at least under CA3 — which is considered as the most basic and elementary considerations of humanity — and therefore armed opposition groups can declare on a person’s guilt of innocence, or even permit the detained person to challenge his or her detention outside of the State’s regular legal system, it should also follow that such groups can detain such individuals under the same legal framework. It would be paradoxical and counterintuitive indeed if armed opposition groups were able to afford persons judicial guarantees whilst in detention during a NIAC but were not permitted to detain them in the first place. To say that armed opposition groups must comply with the aforementioned provisions, but not allow them by the same legal framework to detain would clearly create a curious outcome.

In sum, if one adheres to the view that IHL does not govern such actions but that instead domestic law applies — as upheld by the Court of Appeal in Serdar Mohammed — then the judicial guarantees contained in CA3 or AP II are stripped of any practical effect. This is because if IHL is silent in a NIAC and under domestic law detentions by these non–state entities are always illegal, then a person challenging the detention by an armed opposition groups before the group’s courts, would always be able to demonstrate that their detention was “arbitrary.” In such circumstances the outcome is a foregone conclusion and there would be no need to hear any arguments based on the judicial guarantees explicitly provided by IHL. It makes no sense for States to have included judicial guarantees within the applicable law if persons detained by armed opposition groups never have the opportunity to call upon them, since their detention is always illegal right from the very beginning. Besides, the purpose of including judicial guarantees in IHL of NIACs serves to ensure that detainees are actually well-treated, regardless of whether the detention is lawful or not, something that should be decided by the body entrusted to fulfill judicial functions.