[Ezequiel Heffes holds an LL.M., Geneva Academy of International Humanitarian Law and Human Rights and is a lawyer, University of Buenos Aires, School of Law.]
Recently, the High Court of England and Wales delivered a judgement in Serdar Mohammed v. Ministry of Defence  EWHC 1369 (QB) holding, among other things (see here for an explanation of the whole case), that the United Kingdom lacks detention authority under international humanitarian law (IHL) with regard to individuals it captures in the course of the non–international armed conflict (NIAC) in Afghanistan. In the present case, Justice Leggatt held that Common Article 3 (CA3) and/or Additional Protocol II (AP II) do not provide legal power to detain in the context of NIACs.
Much has been written about this in the blogosphere (see here, here, here and here by Gabor Rona a few years ago). From a theoretical perspective, these writings have raised several interesting arguments. This post, however, will focus on certain practical issues. I will offer four arguments to suggest that it would be simply counter–intuitive not to recognize that IHL already regulates detentions in NIACs, even though it seems to be explicitly silent on this question.
The protection gap argument
The fact that CA3 and AP II neither mention internment nor elaborate grounds of detention has led to different positions on the legal basis for internment in NIACs. International bodies have prohibited such actions in cases other than when it is necessary for reasons related to the conflict. Here, the Inter–American Commission affirmed with regard to detentions carried out by the Colombian AOGs that “international humanitarian law also prohibits the detentions or internment of civilians except where necessary for imperative reasons of security”. The same view was held by the UN Commission of Human Rights (Resolution 1995/77) when it appealed to AOGs to refrain from “arbitrary” detention of civilians. As Zegveld points out, these bodies seem to have derived this prohibition from the IHL applicable to international armed conflicts, in particular Geneva Convention IV (Zegveld, Accountability of Armed Opposition Groups, at 65).
On the other hand, other resolutions by the UN Commission on Human Rights, such as Resolution 1995/74, deny that IHL permits certain civilian detentions on the grounds that human rights law is, in principle, a body of law only addressed to States, and only States have authority to arrest and detain persons. This would mean that, in the present case, IHL is silent while the international human rights law (IHRL) provision on arbitrary detention (Article 5 ECHR) would only be applicable towards the UK. This, however, represents a protection gap for detainees held by AOGs during the NIAC. If IHL and IHRL do not apply upon them, then AOGs are able to operate within a legal ‘black hole’ and can in principle detain with impunity from an international law perspective (Somer, at 667–668). This necessarily implies that those detained by non–state actors have less protection than those detained by States, a situation that in the context of an armed conflict could not exist since IHL recognizes the principle of the equality of the parties (see the fourth argument by Kubo Mačák).
The judicial guarantees argument
CA3 affirms that “the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized people” is prohibited with respect to protected persons. Article 5 of AP II complements this by including several standards based on the more rigorous provisions of GC III and IV.
These provisions and possible detentions in NIACs should be seen through the same prism. Indeed, by granting AOGs the possibility to “regularly” constitute courts and to legislate in order to meet the judicial guarantees component (CA3), States have recognized AOGs’ legal capacity to run a parallel non–state legislative and judicial system outside of State authority (Somer, at 657). If States have accepted this guarantee (and therefore AOGs can declare someone innocent or guilty, or even permitting the person detained to challenge his or her detention), it would be simple logic to accept that they can also detain individuals under the same legal framework. In fact, they are both related since the application of judicial guarantees may serve to prevent indefinite detention in either situation.
The hostage taking argument
Alternatively, if AOGs are not able to detain members of State forces, then there is no practical difference between that situation and hostage taking, which is forbidden by CA3. The 1979 Convention against the Taking of Hostages provides a useful definition: “any person who seizes or detains […] in order to compel a third party, namely, a State […] a natural or juridical person, a group of person, to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage commits the offence of taking of hostages […]”. Even though it was not drafted with a NIAC in mind, the definition contained therein could be considered appropriate in times of armed conflicts (Prosecutor v. Sesay, Kallon and Gbao, para 579) and might cover AOG detentions in the absence of authority under IHL.
As Sivakumaran explains, the means by which an individual enters the custody of the hostage–taker may be through lawful and unlawful means (Sivakumaran, The Law of Non–International Armed Conflicts, at 269). Certainly, the “hostage” label would come after the person has been taken away, regardless of how he or she is taken, but having in mind that an AOGs’ detentions will always be illegal under domestic legislation and not regulated as such by international law, the only characterisation that could frame such conduct under the latter regime would be the “hostage–taking” one. If AOGs cannot detain under IHL, then every person under their control against their will would be a hostage and therefore each detention would constitute an automatic violation of international humanitarian law.
The realistic argument
If none of the abovementioned arguments are enough, then we should just move towards a more realistic approach. This alternative proposes that it is simply unreasonable to consider that AOGs cannot detain individuals from an IHL perspective. As Sassòli (at p. 19) correctly suggests, “[p]arties to armed conflicts intern persons, hindering them from continuing to bear arms, as to gain a military advantage. If the non–state actor cannot legally intern members of government forces it is left with no option but either to release the captured enemy fighters or to kill them”. This implies that AOGs’ members might attack government soldiers instead of trying to legally arrest them. Even if under domestic law the killing of State forces is inherently illegal, no one says that it is prohibited per se under IHL. Yet, according to Sassòli’s argument, we could simply analyse possible detentions by AOGs from a “military advantage” perspective.
This post has attempted to demonstrate some possible arguments as to why detentions in NIACs should be logically framed under IHL having in mind the recent decision in Mohammed of the High Court of England and Wales, which held the IHL to authorize such detentions. Certainly, these arguments do not solve all the issues raised in the context of NIAC detentions, but there can (and should be) room for new paradigms, particularly in light of how NIACs operate in the real world and the practical protection concerns that arise if the law were to remain truly silent.