On any account of the events that transpired one early April morning four years ago in northern Helmand in Afghanistan, the plight of Mr Serdar Mohammed is not to be envied. For reasons that are still in dispute, he was captured by the UK armed forces close to his home. Shot at, bitten by a military dog, and finally caught, he was brought into UK custody on suspicion of being an insurgent, perhaps even a Taliban commander. In the end, he was detained on British military bases for over 100 days before being handed over to the Afghan authorities.
Mr Mohammed brought a claim before the High Court of Justice of England and Wales for unlawful detention, seeking compensation from the UK government. In Serdar Mohammed v. Ministry of Defence [2014] EWHC 1369 (QB), a judgment delivered last Friday, Mr Justice Leggatt decided that Mr Mohammed’s detention after the initial 96 hours violated Article 5 of the European Convention on Human Rights and that he was therefore entitled to compensation.
The judge openly says at the outset of the ruling that it is ‘a long judgment which discusses many issues and arguments’ (para. 2). Unlike Marko’s excellent post, which provides a more comprehensive overview of the judgment, my text takes a closer look at one of the key issues in the judgment only. This is the question of lawfulness of detention of persons in non-international armed conflicts under international humanitarian law (IHL), summarised by Marko in section 5 of his post.
It is well known that while the law of international armed conflict (IAC) provides an express legal basis for the detention of civilians in Articles 42 and 78 of the Fourth Geneva Convention, there is no counterpart in the treaty norms regulating non-international armed conflict (NIAC). The MOD argued that a power to detain is nonetheless implicit in Common Article 3 and Additional Protocol II. Although Mr Justice Leggatt acknowledged academic opinion in support of the MOD view, quoting extensively from texts written by Jelena Pejić and Jann Kleffner (see para. 240), he eventually came down against it on the basis of five very articulate reasons (paras. 241–251).
I will not revisit the academic debate on this topic (for which, in addition linkedin database to the texts quoted in the judgment, see, e.g., here, here, or here), but rather subject the specific reasons advanced by Mr Justice Leggatt to somewhat closer scrutiny. It appears to me that even though the reasons are very well made, there are strong considerations not reflected in the judgment, which militate in favour of the opposite view.
As a preliminary point, the judgment as a whole ought to be commended for expertly navigating a plethora of complex legal issues and diverse areas of law, including the law of State responsibility, use of force, IHL, and, of course, international and European human rights law. The following commentary slices but one narrow issue out of this composite legal text and does not aim to provide an overarching critical analysis of the entire judgment. In particular, I leave open the question of the relationship between IHL and IHRL, which some will see as confirming the eventual decision in Mohammed even assuming that my analysis is correct (on this, see especially paras. 269–294 of the judgment).
Now to Mr Justice Leggatt’s five reasons:
Firstly, he found it ‘reasonable to assume that if CA3 and/or AP2 had been intended to provide a power to detain they would have done so expressly’ (para. 242). In other words, this is a restatement of the problem acknowledged at the outset: there clearly is no express legal basis in any of the treaty law regulating NIAC. However, this does not mean that such a legal basis may not be identified utilising accepted methods of legal interpretation.