British and American troops with Iraqi captives in March 2003. (UK MOD)

Last month, the English High Court delivered its judgment in favour of the claimants in Alseran and Others v Ministry of Defence, a decision representing the latest instalment in the long line of cases brought on human rights grounds against the UK Ministry of Defence relating to operations in Afghanistan and Iraq.

The case involved four Iraqi claimants who alleged that they were unlawfully detained and mistreated by British forces. Below, I would like to flag up certain points of interest concerning the legal framework of detention in an international armed conflict arising from the claims brought by one of the parties, Kamil Najim Abdullah Alseran.

By way of background, Alseran was captured in the middle of the night in his bed by British forces during their advance on Basra at the end of March 2003. Alseran claimed that he was assaulted at a temporary holding facility where he was made to lie face down on the ground while soldiers ran over his back. He also claimed that his subsequent internment for several weeks at the Camp Bucca prisoner of war internment facility near Umm Qasr amounted to unlawful detention.

Regarding the claim of unlawful detention, the sole presiding judge, Mr. Justice George Leggatt, found there was no basis in international law for Alseran’s internment at Camp Bucca. He also held that the review process adopted by British forces to determine the status of captured persons rested on a misunderstanding of the Geneva Conventions of 1949. These aspects of the judgment are of broader interest for several reasons. They shed light on the legal basis for the capture of persons in enemy territory not under belligerent occupation. They also expose a tension between the detention regimes applicable to prisoners of war and civilians, underscoring the need for the prompt categorization of captured persons and the legal risks involved in presuming that they enjoy prisoner of war status.

Capture as a prisoner of war: the role of uniform and arms

Alseran was detained in the context of an international armed conflict in which the UK and Iraq were opposing parties. Mr. Justice Leggatt found that it was lawful, in principle, for UK forces to intern persons falling within Article 4(A) of the Third Geneva Convention as prisoners of war in these circumstances. However, he rejected the Ministry of Defence’s argument that it was reasonable to detain Alseran as a suspected prisoner of war:

244. … It is clear that, when Mr. Alseran was captured, he was alone in bed in a civilian dwelling. He was not wearing a uniform or any distinctive sign indicating that he was [a] combatant. Nor was he armed. In these circumstances, even if he was reasonably suspected to be a member of the Iraqi armed forces or of a militia, Mr. Alseran could not have been detained as a prisoner of war. As discussed, in order to have that status, combatants must distinguish themselves as such.

This reasoning is not compelling. The fact that a person is captured in civilian clothing and without arms does not necessarily imply that he cannot be a combatant, cannot be entitled to prisoner of war status or should not be treated as a prisoner of war.

First, combatants are entitled to prisoner of war status only if they satisfy certain conditions. This normally involves wearing a uniform and carrying arms openly, in accordance with Article 4(A)(1) and (2) of the Third Geneva Convention. However, for the UK, these requirements are relaxed by Article 44(3) of the Convention’s Additional Protocol I, which provides that a combatant shall retain his status as a combatant, and thus his entitlement to prisoner of war status, provided that he carries his arms openly during each military engagement and during such time as he is visible to the adversary whilst engaged in a military deployment preceding an attack. As long as an individual satisfies these minimum requirements, the fact that he does not carry arms openly at other points in time does not remove him from the scope of Article 44(3). Consequently, the fact that Alseran did not wear a uniform or carry a weapon when he was woken from his sleep to be captured does not prevent him, in principle, from being a combatant.

Second, pursuant to Article 44(4) of Additional Protocol I, a combatant who falls into the power of an adverse party while failing to meet these minimum requirements must be given protections equivalent in all respects to those accorded to prisoners of war. This implies that captured persons reasonably believed to be combatants must be treated as prisoners of war, and may be interned as such pending determination of their status, even where they were captured out of uniform and without arms.

Indeed, wearing uniform and carrying arms are indicators of a person’s membership in enemy armed forces, but these cannot be determinative. To hold otherwise is to confuse an indicator of status with the status itself. It would mean that enemy combatants caught in a state of undress, like Ryan Goodman’s (in)famous commander in the shower, would not qualify as combatants and prisoners of war. Though such shower-scenes are perhaps the exception rather than the rule on the contemporary battlefield, they illustrate the point of principle.

Finally, it is important to recall that combatant status and prisoner of war status are distinct matters. Certain classes of civilians who accompany the armed forces, such as civilian members of military aircraft crews, war correspondents and supply contractors, are also entitled to prisoner of war status under Article 4(A) of the Third Geneva Convention, notwithstanding the fact that they are not combatants and as such do not wear uniform or carry arms.

All of this confirms that as long as the capturing forces reasonably suspect (see paras 278–280) that a person is a combatant or otherwise liable to prisoner of war status, based on indicia other than the wearing of uniform or the carrying of arms, his capture as a prisoner of war is legitimate. Mr. Justice Leggatt’s ruling that British forces lacked the authority to lawfully capture Alseran as a prisoner of war “even if he was reasonably suspected to be a member of the Iraqi armed forces or of a militia” because he did not wear uniform or carry arms at the relevant time is not, therefore, correct.

Capture of civilians in enemy territory not under occupation

Since Mr. Justice Leggatt rejected the Ministry of Defence’s argument that the Third Geneva Convention permitted the capture and initial detention of Alseran, he turned to the Fourth Geneva Convention as a possible alternative legal basis. The difficulty here is that pursuant to Article 79 of the Fourth Convention, enemy civilians may be interned only on the national territory of the detaining power or in the context of belligerent occupation. The Fourth Convention does not contain an express legal basis for detaining civilians who, like Alseran, are present in enemy territory not under occupation. Mr. Justice Leggatt rejected the idea that the detention regime of belligerent occupation may be extended to such situations. Instead, he held that invading forces may capture civilians in unoccupied enemy territory pursuant to Article 27 of the Fourth Geneva Convention, which permits the parties to the conflict to “take such measures of control and security in regard to protected persons as may be necessary as a result of the war.”

This is a reasonable and appropriate reading of the Fourth Convention. While Article 27 cannot serve as a basis for the internment of protected persons, given that it is not listed among the permissible grounds for internment mentioned in Article 79, it is capable of serving as a legal basis for their capture and initial detention, pending their release or transfer and internment on the grounds mentioned in Article 79. In the words of Mr. Justice Leggatt:

277. Thus, although Geneva IV does not authorise internment in territory which has been invaded but not yet occupied, I see no reason why the measures authorised by article 27 should not include taking people into custody, where it is necessary to do so for their own safety or because they pose a threat to security, and transporting them to occupied territory. Once in occupied territory, they may be interned if the requirements of article 78 [of the Fourth Geneva Convention] are met.

The process of status determination

As indicated earlier, Mr. Justice Leggatt found that the process put in place by British forces for determining the legal status of captured persons did not comply with the law of armed conflict. The first stage in that process involved a screening panel set up to determine whether there was any doubt that a captured person claiming to be a civilian was in fact a civilian. In the absence of doubt, the individual would be treated as a civilian. If there were doubts, the person would be treated as a prisoner of war. This approach was driven by the need to avoid denying the benefits of prisoner of war status to persons who may be formally entitled to it, purportedly in line with Article 5 of the Third Geneva Convention, which declares as follows:

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4 [of the Third Geneva Convention], such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

However, treating all captured persons whose status was in doubt as prisoners of war ran the risk of depriving persons who may have been civilians of their rights under the Fourth Convention, including their right not to be interned other than for imperative reasons of security. According to Mr. Justice Leggatt, British forces should have adopted a different approach:

304. If article 5 of Geneva III had been properly applied, the first question for the interviewing panel should therefore have been to consider whether there was evidence that the individual had committed a belligerent act. If the answer was “yes”, it would have been right for the panel to proceed in accordance with the guidance given. But if the answer was “no”, keeping the individual in detention could only be justified if there was either (a) positive reason to believe that the individual was a combatant or (b) other evidence that the person’s internment was necessary for imperative reasons of security.

Subject to certain caveats, this approach is indeed correct. As the language of Article 5 makes clear, the duty to review does not apply to all persons whose battlefield status is in doubt, but only to those who have committed a belligerent act and have subsequently fallen into the hands of the enemy. The purpose of Article 5 tribunals is to ensure that persons who engage in combat without the right to do so are classified as unlawful combatants not entitled to prisoner of war status only by a competent authority (see Final Record of the Diplomatic Conference of Geneva of 1949, Volume II/B, 269–272). The same rationale is behind Article 45(1) of Additional Protocol I (see DDH/III/SR.34, Official Records of the Diplomatic Conference, Volume 14, 336).

At the point of capture, a detaining power must therefore consider whether a captured person whose prisoner of war status is subject to doubt has committed a belligerent act.

If the answer is yes, the detaining power is under a duty to treat the person concerned as a prisoner of war, pending the determination of their status by an Article 5 tribunal. Should the tribunal find that the person is in fact a civilian, the latter has no grounds for contesting their detention up to this point, given that the law of armed conflict imposed an obligation on the detaining power to treat them as a prisoner of war. This conclusion is not altered by the fact that Article 50 of Additional Protocol I stipulates that in cases of doubt, a person must be considered a civilian. As Mr. Justice Leggatt correctly held (para. 309), the presumption under Article 50 operates in the context of targeting, rather than in the distinct context of detention (see CDDH/50/Rev.1, Official Records of the Diplomatic Conference, Volume 15, 239).

If the answer to the question is no, because the person whose prisoner of war status is in doubt has not engaged in a belligerent act, then the detaining power is not bound to treat that individual as a prisoner of war under Article 5 of the Third Convention. However, unless they are released, there is still an urgent need to resolve the doubt surrounding their status. This is so because the detaining power must ensure that the conditions justifying internment exist and that the correct detention framework—the prisoner of war, civilian internee or ordinary criminal law regime—is applied. It is here that the approach adopted by British forces in relation to Mr. Alseran went astray. The UK continued to treat him as a prisoner of war, without actually being under a legal obligation to do so. The danger of proceeding on the basis of a presumption of prisoner of war status where Article 5 is not applicable is that doing so may contravene Article 75(3) of Additional Protocol I:

Any person arrested, detained or interned for actions related to the armed conflict shall be informed promptly, in a language he understands, of the reasons why these measures have been taken. Except in cases of arrest or detention for penal offences, such persons shall be released with the minimum delay possible and in any event as soon as the circumstances justifying the arrest, detention or internment have ceased to exist.

To comply with this provision, a detaining power holding a person who has not engaged in belligerent acts (and therefore falls outside Article 5), but whose prisoner of war status is in doubt, must clarify the legal status of that person in order to determine what the relevant conditions justifying their continued arrest, detention or internment are and whether these conditions are satisfied. This is to enable the detaining power to release that person with the minimum delay possible should it transpire that their continued detention or internment is not in fact justified. Since such a review does not fall within the scope of Article 5 of the Third Geneva Convention, a detaining power is not bound to undertake it through an Article 5 tribunal, but may opt for an alternative mechanism, as long as the latter is compatible with the requirements of Article 75 of Additional Protocol I.

Implications for detaining powers

The Alseran case demonstrates the legal risk involved in treating all captured persons whose status is in doubt as prisoners of war. A presumption in favor of prisoner of war status in situations where such a presumption is not mandated by Article 5 may lead a detaining power not to act with the necessary sense of urgency required by Article 75 in order to clarify the status and grounds for detention of persons who claim or may reasonably be suspected to be civilians.

For example, current British doctrine (JDP 1-10, Captured Persons, Annex 1B) requires a tribunal to consider the evidence against a captured person no later than 48 hours after they are captured “to determine whether that individual should be released, transferred to the host nation for criminal prosecution, or whether there are sufficient grounds to intern them for imperative reasons of security”. This system only works if all captured persons fall under it without any presumptions regarding their status. If the 48-hour review only applies to persons presumed or suspected to be civilian internees or criminal detainees, but excludes persons presumed or suspected to be prisoners of war on the basis that the latter are subject to a separate, but potentially slower, Article 5 tribunal process, the detaining authority runs the risk of not complying with Article 75 of Additional Protocol I and the corresponding requirements under human rights law (see Hassan, para. 106).

To avoid detaining captured persons unlawfully, detaining authorities must therefore set up a screening mechanism that conclusively determines, with minimum delay, the legal position of all individuals whose status is in doubt and who have not engaged in belligerent acts.