Guest Post: Rona on Mohammed v. Ministry of Defence and Detention in NIAC

[Gabor Rona is the International Legal Director of Human Rights First.]

What is the source of the power to detain in an armed conflict that is not between states (non-international armed conflict, or NIAC)? Where is the relevant law on grounds and procedures for such detention found? Torture and drones aside, this is probably the most vexing, most controversial, and most significant of debates to come out of the “war on terror.” And it has been fired up anew in Serdar Mohammed v. Ministry of Defence [2014] EWHC 1369 (QB), a decision of the High Court of England and Wales that has already received a good bit of attention.

The reason I limit the question to “in armed conflict” is that outside of armed conflict, the source of detention power is clear. There, it’s domestic law as constrained by international human rights law that provides the answer. A single important asterisk is made necessary here because a very few recalcitrant states, like the US, deny that human rights law applies to their extraterritorial conduct.

The reason I limit the question to armed conflict “that is not between states” is that in wars between states (international armed conflict, or IAC), the Third and Fourth Geneva Conventions provide detailed instructions on who may be detained, for how long, and why.

But for NIACs, like that in Afghanistan, the Geneva Conventions are silent on the grounds and procedures for detention.

One position is that it makes absolute sense for the Geneva Conventions to be silent on this issue, since detention in NIAC can simply be governed by the law of the state where the detention is taking place – just the same as if it were not armed conflict. There is no work for international law of war to do here. Under this view, people may be deprived of liberty only on grounds and according to procedures set forth in domestic law and in accordance with international human rights law, they must be afforded prompt review by an independent body to determine the legality of detention and to order release, if detention is found to be unlawful. This is, in essence, the right of habeas corpus. This view is increasingly shared by international and national jurisprudence, not to mention human rights advocates.

The decision in Serdar Mohammed, a case that deals with detention power in NIAC, is in accord: in the absence of relevant powers expressed in the law of armed conflict, NIAC detention is subject to human rights law.

The continued applicability of human rights law in NIAC also finds support in the international treaties applicable to such conflicts. For example, Common Article 3 of the Geneva Conventions says that trials of detainees must provide “all the judicial guarantees that are recognized as indispensable by civilized peoples.” Where may those judicial guarantees be found? In human rights law. A more explicit reference to applicable human rights law in an international treaty applicable to NIAC is in the Preamble to the Geneva Conventions’ Additional Protocol II: “Recalling furthermore that international instruments relating to human rights offer a basic protection to the human person…”

A different view is that where the local legal architecture has broken down – often the case in war – something else needs to take its place. Also on this side, is the recognition that when the Geneva Convention provisions on detention were written, it was assumed that non-international armed conflict meant civil war, pure and simple.  In other words, there was no consideration of a reality to come: that states would be fighting non-state armed groups on the territory of other states, at the invitation of (rather than being at war with) those states. This phenomenon, for example, the US at war in Afghanistan, raises a new question even if the US were to recognize that detention powers in non-international armed conflict derive not from the law of armed conflict, but from domestic and human rights law. The question: whose domestic law? The US apparently denies that it is Afghanistan’s law that it must obey, as Afghanistan prohibits detention without charge or trial or judicial process. Thus, the US Congress passed laws authorizing such detention. But the US also maintains that it has inherent right to detain under the international laws of war, even though the Geneva Conventions make no mention of such powers. The claim, then, is that the power to detain arises from customary international laws of war, rather than written ones, or that it is a “lesser-included” element of the power to target. (This claim is questionable. First, it obviously cannot apply to detainees who were not targetable. As for those subject to targeting, the power to arrest might be a lesser-included element of the power to kill, but once a person is deprived of liberty, there should be no impediment to his right to challenge detention – as opposed to the obvious difficulty of challenging the deprivation of the right to life after one is killed.)

Along comes the ICRC. The International Committee of the Red Cross (disclosure: I used to be in the legal division) is a venerable organization that rightly commands global respect for neutral and independent humanitarian action to protect victims of armed conflict. It is also said to be the guardian of international humanitarian law – the body of international law that governs war, including detention. So the ICRC has significant credibility should it decide to weigh in on this issue. And weigh in it has, but with less than absolute clarity.

In 1995, my former colleague in the ICRC legal division, Jelena Pejic, wrote what has rightly become an influential article on detention in war. She notes that although international humanitarian law – the law of armed conflict – presumes detention in wars that are against non-state armed groups, it does not set out the permissible grounds and procedures, as do the Geneva Conventions for wars between states. Nonetheless, Jelena concludes, all detention in armed conflict must be in accordance with grounds and procedures established in either domestic or international law.

Here’s what Jelena’s article says, at page 383:

“In the context of internment/administrative detention, the principle of legality means that a person may be deprived of liberty only for reasons 9substantive aspect) and in accordance with procedures (procedural aspect) that are provided for by domestic and international law.”

Also:

 “Human rights standards applicable in non-international armed conflicts and other situations of violence provide even more detailed provisions aimed at ensuring respect for the principle of legality. Under the ICCPR (Article 9 (1)), for example, persons may not be deprived of their liberty “except on such grounds and in accordance with such procedure as are established by law.”

The article details the provisions of treaty IHL that establish grounds and procedures for detention in international armed conflict (IAC), but says nothing about like provisions of IHL related to NIAC, and for a good reason: there are none.  Oddly, the Court in Serdar Mohammed  cites Jelena’s article, at para. 240, for the proposition that the ICRC believes there is inherent detention power in the IHL of non-international armed conflict (NIAC). Jelena’s article, which, according to a to an ICRC background paper, represents the official ICRC position, rather suggests just the opposite.

But Jelena’s article does not explicitly say that NIAC detention must be authorized by domestic law. It merely leaves the reader to draw the inevitable conclusion and the ICRC has not yet seen fit to provide any further guidance on the all-important question: Did the court in Mohammed correctly characterize the ICRC’s position? Is the power to detain in armed conflict against non-state armed groups inherent in the international laws of war, or must grounds and procedures for such detention be detailed in domestic law? If the latter, then whose laws count when one state is conducting detention operations on the territory of another?

The Mohammad decision will certainly be appealed. Meanwhile, and regardless of the outcome, the ICRC – as the self-appointed “guardian” of the laws of armed conflict – owes the world a response.