Detention in non-international armed conflict

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British armed forces captured Serdar Mohammed, in northern Helmand, Afghanistan on April 7, , and detained him in British military bases in Afghanistan until July 25, , when they transferred him to the custody of the Afghan authorities. The UK suspected Mr.


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Mohammed of being a Taliban commander and interrogated him for 25 days after his initial 96 hours of detention. The UK kept Mr. Mohammed in detention on a British military base for a further 81 days before transferring him to the Afghan authorities, who had previously said they were willing to detain him but did not have the capacity to do so due to overcrowding.

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The British authorities held Mr. Mohammed for a total of days. He was then placed in Afghan custody until June There, it was joined with Mr.

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The Justice Initiative, together with Amnesty International, Human Rights Watch, and the International Commission of Jurists submitted a third-party intervention in this case setting out why IHL does not authorize or regulate internment in times of NIAC and, also, that IHRL is the appropriate source of international law to ensure such detention is not arbitrary and unlawful.

Article 5 of the European Convention, which applies extraterritorially and in times of armed conflict, regulates internment in a NIAC. Even if IHL is considered to provide specific rules and procedures for NIAC internment, it is now well established that the application of IHL does not displace the application of international human rights law.

IHL does not provide the authority, grounds, or procedures for internment in NIAC, whether explicitly or by implication. For internment to be compliant with human rights law it must be pursuant to law and not arbitrary. This can be done a through the domestic law of the host State, b through the domestic law of the State to which the international force belongs, or c through a narrowly tailored UNSC Resolution that specifically provides for internment, and is implemented in domestic law.

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The court also considered that the laws of war — as a matter of treaty law or customary international law — did not provide the UK with a legal authority to intern, which the convention requires when a state deprives an individual of their liberty. On balance, however, the court concluded by 7 to 2 that the detention was not unlawful, as the UN Security Council had provided the UK with the required authority to intern despite the European convention not listing internment as a permissible form of deprivation of liberty , the convention did not provide internees with the right to a judicial review process, and internment was permissible even without a formal derogation.

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The Ministry of Defence appeals. Mohammed claims that his detention was unlawful as it was in breach of his rights under the European Convention. Mohammed is released from British custody after days in detention and transferred to Afghan custody. British armed forces capture Serdar Mohammed, in northern Helmand, Afghanistan and detain him in British military bases in Afghanistan. Colin Gonsalves talks to James A.


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  • Goldston of the Open Society Justice Initiative about his approach to using the law to achieve social and economic change. Drawing on years of field-based research, this report takes an unprecedented, empirical look at the impacts of strategic human rights litigation. The Grand Chamber has been consistent in its willingness to ascribe extraterritorial jurisdiction in situations involving overseas military operations.

    The Netherlands. In that case, Dutch forces had been manning a checkpoint in an area under British control in Iraq. Jaloud was shot and killed as his car passed through.

    International Humanitarian Law and its Application in Contemporary Conflicts

    Consider the hypothetical position if the facts similar to those in the Hassan case had related to detention by the United States. If such a case could have been brought against the United States under the ICCPR, rather than against the United Kingdom under the European Convention, the jurisdiction question would have been far more problematic. This would mean that there was no breach by the United Kingdom with respect to the capture and detention of Hassan.

    Alternatively, if Article 5 applied and was not displaced or modified in situations of armed conflict, the British Government submitted that the list in Article 5 1 of permissible purposes of detention had to be interpreted in such a way that it took account of and was compatible with the applicable lex specialis —IHL. They argued that the taking of prisoners of war pursuant to the Third Geneva Convention, and the detention of civilians pursuant to the Fourth Geneva Convention, was a lawful category of detention under Article 5 1. The Grand Chamber did not accept that the scope of Article 5 1 c —the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence—extended to situations of security internment in an international armed conflict.

    Where contracting parties arrest and detain suspected combatants or civilians suspected of being a threat to security in a situation of international armed conflict, they should ensure that the arrests and detentions are lawful, meaning within the spirit of the fundamental purpose of the right to liberty enshrined in Article 5 of the European Convention—to protect individuals from arbitrariness.

    Legal Framework for Detention by States in Non-International Armed Conflict

    It must therefore give priority to the Convention. The majority judgment of the Grand Chamber sets out the law that applies to states that are parties to the European Convention, but what of states that are parties to the ICCPR and carry out security detention in the course of an armed conflict? General Comment No. In paragraph 15, the HRC considers that security detention that is not carried out in contemplation of prosecution has a severe risk of being arbitrary, but enumerates various conditions for the use of such detention in undefined exceptional circumstances.

    Security detention authorized and regulated by and complying with international humanitarian law in principle is not arbitrary.



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