The Law At War?

Last year, two decisions affecting the UK examined the relationship between IHL and Human Rights Law, more specifically, European HRL in the form of the ECHR. The first such decision was the case of Serdar Mohammed, (a NIAC case) decided in the High Court on 2 May 2014 and due before the Court of Appeal this coming week. The second was before the ECtHR in Strasbourg, Hassan-v-United Kingdom (Application no. 29750/09) decided on 16 September 2014 (an IAC case).

Serdar Mohammed is an important case affecting multinational operations in NIAC. The upshot of the findings of Mr Justice Leggatt were that the ECHR applied in NIAC and that detention operations had to comply with article 5 ECHR and that this obligation was not displaced in its application to the detention of suspected insurgents by UK armed forces in Afghanistan either (a) by the United Nations Security Council Resolutions which authorised the UK to participate in ISAF or (b) by international humanitarian law. The court rejected the submission that, in a situation of armed conflict, IHL as the lex specialis displaces Convention rights altogether. Relying on a resolution of the UN General Assembly (UN GAOR, 29th Sess., Supp. No. 31) it was said that the United Nations has affirmed the principle that

"international human rights law continues to apply alongside IHL in situations of armed conflict. Even in an international armed conflict, where a clash of obligations occurs between IHL and art 5 ECHR, the only way in which the European Court or a national court required to apply Convention rights can hold that IHL prevails over Article 5 is by applying the provisions for derogation contained in the Convention itself, and not by invoking the principle of lex specialis. In circumstances where the Convention itself defines the conditions in which and the extent to which derogation from its obligations is permitted, and makes specific provision for derogation in time of war, it is difficult to see that there is any room for the lex specialis principle to operate as a basis for disapplying the Convention when it conflicts with IHL."

The court held that UK armed forces operating in Afghanistan had no right under the local law to detain people other than a right to arrest suspected criminals and deliver them to the Afghan authorities immediately, or at the latest within 72 hours.

Much has been written by way of commentary in the case, with respected authors such as Ryan Goodman supporting "a core part of the High Court's holding" but disagreeing with "a significant part of the rationale the court used as a basis for reaching that result". See his article, "Authorization vs. Regulation of Detention: What Serdar Mohammed v. MoD Got Right and Wrong" published 5 February 2015. To summarise, Ryan's view is that IHL does not specifically authorise detention in NIAC but it does regulate such detention as "multiple sources conclude that IHL prohibits arbitrary deprivation of liberty in NIAC." His view on the latter point was challenged by Kevin Jon Heller who considers "international human rights law (IHRL) governs the regulation of detention in NIAC precisely because there are no contrary customary rules of IHL that can serve as the lex specialis of detention." A solution posited by the court in Serdar Mohammed was to derogate from the provisions of the ECHR, provided for in article 15.

The ICRC position is summarised in a paper entitled "Internment in armed conflict: Basic rules and challenges". This points out that Common Article 3,

"which is recognized as reflecting customary IHL, expressly provides for protections that must be afforded to persons taking no active part in hostilities, including members of the armed forces who have laid down their arms, as well as to those placed hors de combat "by sickness, wounds, detention, or any other cause". Detention is thus explicitly mentioned as one of the "causes" that will give rise to the application of the protections of Common Article 3. These protections are meant to apply to any form of detention related to the armed conflict, and will therefore also apply to detention for serious security reasons, i.e. internment... Additional Protocol II to the Geneva Conventions, adopted in 1977 - most provisions of which are widely considered to also reflect customary IHL - likewise governs deprivation of liberty in NIAC. Article 4 (1) of the Protocol lists fundamental guarantees for all persons who do not or have ceased to take a direct part in hostilities "whether or not their liberty has been restricted". Article 5 is entitled: "Persons whose liberty has been restricted", and specifies that its provisions (additional to those of Article 4), apply whether persons are "interned or detained" in relation to the armed conflict."

The document makes it clear that "prisoners held under normal rules of criminal law are not covered by this provision". Moreover, where there is a 'NIAC with an extraterritorial element' the ICRC, position "is that both customary and treaty IHL contain an inherent power to intern and may in this respect be said to provide a legal basis for internment in NIAC. This position is based on the fact that internment is a form of deprivation of liberty which is a common occurrence in armed conflict, not prohibited by Common Article 3, and that Additional Protocol II - which has been ratified by 167 States - refers explicitly to internment."

The theme is explored persuasively by Aurel Sari (Law School, University of Exeter) and Sean Aughey (barrister, 11 KBW whose scholarly contribution to the debate was augmented with the publication of an excellent article entitled, "Targeting and Detention in Non-International Armed Conflict: Serdar Mohammed and the Limits of Human Rights Convergence", (2015) 91 International Law Studies 60–11. Sean assisted Karen Steyn QC who represented the Ministry of Defence in the Serdar Mohammed case. The article "demonstrates that the restrictive approach adopted by the High Court in Mohammed is mistaken as a matter of law and undesirable as a matter of policy. In short, Mohammed drives the convergence between international human rights law and the law of armed conflict too far." The authors cogently argue that,

"contrary to Leggatt J's understanding, a legal basis for the detention of Mr. Mohammed on security grounds may be found in Security Council Resolution 1890 and in both treaty and customary law of armed conflict applicable in NIACs. As regards the latter, the legal authority for status-based detention is implicit in the scheme of CA3 and AP II, as a necessary corollary of the implicit au-thority to kill, and found in customary law, as reflected by established practice. As regards the question of Security Council authorization ... the High Court erred in finding that Article 103 of the Charter was inapplicable. Its central mistake was to construe ISAF's mandate too narrowly, through the prism of a law enforcement paradigm. On its proper construction, taking into account the well-established meaning of the phrase "all necessary measures" and ISAF's mandate as spelled out in previous resolutions, Resolution 1890 authorized ISAF to operate pursuant to a conduct of hostilities paradigm. As a result, ISAF was not limited to the use of force against individuals representing an imminent threat. Rather, notwithstanding the absence of specific express authorization, ISAF was permitted to engage in both lethal and non-lethal status-based operations, including targeting. Leggatt J's demanding understanding of the requirement for "clear and explicit" language fails to apply the interpretative principles set down by the ICJ. It pushes the European Court's reasoning in Al-Jedda too far by inappropriately seeking to impose more exacting conditions upon the Security Council's authorization of force under Chapter VII."

Indeed, the likelihood of obtaining any degree of specificity in a UN Security Council Resolution, as most people who have ever been concerned in their negotiation will confirm, is extremely remote. It may in any event undermine other useful terminology. The very use of a phrase like "all necessary measures" leaves the mandated states free to do what is "necessary" to fulfll the mandate. The generality of the phrase is deliberate - it would be impossible to forecast every contingency and required authorisation. Indeed, were they to be specifically spelled out, there would doubtless be even more scope for challenge on the basis that the authority of the mandate had been exceeded because an act did not appear on the authorised list, even though it was 'necessary' and did not breach international law. As many writers acknowledge (although others dispute it) IHL does not prohibit detaining civilians who pose a security threat to the force operating in a NIAC (eg Goodman, Hill-Cawthorne, Akande, Sari, Aughey). The court, however, took the view that IHL does not authorise detention in international armed conflict.

Sari and Aughey also point out that

"permission to conduct status-based operations also exists under the law of armed conflict, both in international and in non-international armed conflicts. Leggatt J, however, overlooked three important principles. First, the insistence on an express basis for detention and/or detailed safeguards in AP II reflects an overly positivist approach which fails to appreciate the true reason for the paucity of treaty law applicable in NIAC, and leaves insufficient room for the possibility of a legal basis either implicit in CA3 and AP II or under customary law. The inability of States to agree on binding rules establishing grounds or safeguards for status-based operations in NIACs reflects their fear of impliedly conferring status or legitimacy upon belligerent non-State actors. However, this does not detract from the fact that the conduct of status-based operations is an accepted and well-established feature of NIACs. The Copenhagen principles provide evidence of the practice of extended deten-tion on security grounds.

Second, by ascribing to Common Article 3 and Additional Protocol II an exclusively humanitarian purpose, Leggatt J disregarded the equally important counterbalancing structural principle and legitimate aim of military necessity. This principle, which reflects international law's acknowledgment of the State's fundamental right to survival, permeates the law of armed conflict and also finds recognition in international human rights law. Practice confirms that the law relating to targeting in international armed conflict, which gives expression to the means of national survival, applies equally in NIACs. Any anal-ysis of the relationship between human rights law and the law of armed conflict which fails to address this aspect of convergence is incomplete. Third, Leggatt J failed to acknowledge the key distinction between different categories of individuals engaged in hostilities in NIACs on behalf of non-State actors. An exclusive focus on the law enforcement paradigm and the equal protection of individuals under human rights law led him to overlook the significance in the law of armed conflict of the enduring status of members of organized armed groups who carry out a continuous combat function. States engaged in NIACs are permitted to kill or, as a necessary corollary, capture and detain such persons for as long as they remain a member of the group pursuant to either CA3 and AP II or customary international law." They conclude that the judgment "paints a bizarre battlefield landscape in which status-based operations in NIACs are prohibited. This highlights the dangers resulting from a failure to fully appreciate the foundational principles of the law of armed conflict and the ways in which this branch of law differs from human rights in its structure, design and objectives.... As the European Court accepted in Hassan, albeit with respect to international armed conflicts, this result is precluded neither by the specificity of the ECHR's wording nor by the possibility of derogation. Once it is recognized that detention and targeting are accepted features of NIACs, the same reasoning applies with equal force. Mohammed".

The extracts I have quoted do not do full justice to the scholarship of this article, but I hope they give a good flavour of the counter arguments to those advanced by the Mohammed court. I hope the Court Of Appeal finds them as persuasive as I do.

What is missing from the debate is the multinational operational dimension. How are such detention operations impacted by missions with other coalition partners (including a host nation) who may not be subject to the ECHR regime? Cases like Al Saadoon and Mufdhi -v- United Kingdom demonstrate the dangers of operating laudable legal principles in a vacuum. It was an unfortunately academic approach to a serious practical issue that showed the Court signally failed to understand the reality and dangers of operational life. The case concerned the detention of 2 Iraqis on suspicion of the murders of 2 British soldiers. The men were within the jurisdiction of the Iraqi High Tribunal and were produced by the British authorities to the court whenever they were required at court. The British authorities were not exercising any criminal jurisdiction over them. The UN mandate for the force expired on 31 December 2008, at which time the men were handed over to the Iraqi authorities, in compliance with host nation law. The 2 men had sought to argue in the UK courts that this breached their rights under the ECHR (articles 2, 3, 6 and 34 of the Convention and Article 1 of Protocol No. 13). They argued that if they were convicted in Iraq they would face the death penalty. They failed in the UK courts. In a strong judgment in the Court of Appeal, it was held that once the Mandate expired

"there remained under international law no trace or colour of any power or authority whatever for the [Multinational Force], or any part of it, to maintain any presence in Iraq save only and strictly at the will of the Iraqi authorities". It was "wholly inescapable that after that date British forces remaining in Iraq have done so only by consent of the Iraqi authorities and on such terms as those authorities have agreed. And it must have been plain, as soon as it was known when the Mandate would come to an end, that this would be the true state of affairs. And there is no sensible room for doubt but that the terms on which British forces would be permitted to remain in Iraq by the Iraqi authorities would not encompass any role or function which would permit, far less require, British (or any other) forces to continue to hold detainees."

The ECtHR took a different view. That court held that the applicants did not choose to seek refuge with the authorities of the United Kingdom; they were arrested and detained by UK forces. So, the UK was under a paramount obligation to ensure that the arrest and detention did not end in a manner which would breach the applicants' rights under Articles 2 and 3 of the Convention and Article 1 of Protocol No. 13. Absent any such binding assurance, the referral of the applicants' cases to the Iraqi courts and their physical transfer to the custody of the Iraqi authorities failed to take proper account of the UK's obligations under Articles 2 and 3 of the Convention and Article 1 of Protocol No. 13 since there were substantial grounds for believing that the applicants would face a real risk of being sentenced to death and executed.

"162. The Court's approach in interpreting the Convention must be guided by the fact that its object and purpose as an instrument for the protection of individual human beings requires that its provisions be interpreted and applied so as to make its safeguards practical and effective. It has found that the decisions of the United Kingdom authorities to refer the applicants' cases to the Iraqi courts in December 2005 and to transfer them physically to Iraqi custody on 31 December 2008, without having first received any binding assurance that they would not be subjected to the death penalty, put them at real risk of being executed. It has further found that, as a matter of principle, it was not open to the respondent State to enter into an agreement or arrangement with another State which conflicted with its obligations under Articles 2 and 3 of the Convention and Article 1 of Protocol No. 13. Finally, it has found that the Government have failed to establish that there were no realistic or practicable means available to them by which to safeguard the applicants' fundamental human rights. In these circumstances, the "objective impediment" claimed by the Government, namely the absence, on 31 December 2008, of any available course of action consistent with respect for Iraqi sovereignty other than the transfer of the applicants, was of the respondent State's own making.

163. Moreover, the Government have not satisfied the Court that they took all reasonable steps, or indeed any steps, to seek to comply with the Rule 39 indication. They have not informed the Court, for example, of any attempt to explain the situation to the Iraqi authorities and to reach a temporary solution which would have safeguarded the applicants' rights until the Court had completed its examination."

This rather arrogant approach by a western European Court to a system of justice which is many hundreds of years old was shown to be misplaced when the Iraqi High Tribunal actually acquitted the two men at their subsequent trial. However, it also minimised the important fact that the multinational force was actually operating on the territory - and with the consent - of a host nation, whose sovereignty we were mandated to respect.

However, we should remember that there was a form of functioning government in Iraq. But what of the situation where the multinational force is assisting a government that does not have sufficient trained armed forces or law and order officials to undertake arrests and detention? What is supposed to happen then? The Serdar Mohammed case would have the assisting force assume ECHR responsibility for all detainees and operate under domestic legal constraints that exist on paper only. For example, any requirement under domestic law to hand over a detainee after eg 96 hours detention would be meaningless if the host nation had no means to hold such a person. And what of the individual who poses a very high security threat? Would the force in those circumstances be required to release him so he could return to the fight? How does the UN mandate authorising "all necessary measures" fare in this? The ECHR was designed to operate in peacetime conditions not in times of armed conflict. That is what IHL is for. The decision in Serdar Mohammed does not really address this important operational point. One then wonders how will this impact upon multinational operations with eg US or Canadian forces where the UK complies with a request to pass a detainee over to the military authorities of either nation? At present, it is difficult to see a happy outcome – we have to remember we are considering operational deployments, not peacetime policing. IHL provides a specific answer to this question in eg art 12 of GCIII.

If the Court of Appeal upholds the Mohammed appeal, the case will doubtless progress further and end up before the ECtHR, whose judgment will be binding as a matter of treaty law (in that the UK is a party to the ECHR). At present, there seems little understanding of the operational dimension by that court. The ECtHR has applied with enthusiasm the "living document" concept to the ECHR and developed the reach of the Convention well beyond what lay in the minds of its founding fathers. Changing domestic law will not really help as the ultimate arbiter will remain the ECtHR. Derogation is a limited tool, because under article 15, derogation is only permissible "[i]n time of war or other public emergency threatening the life of the nation". Not every UN mandated operation will pose a threat to the life of the nation. Indeed, neither Kosovo (no UN mandate) nor Libya (controversial mandate) interventions would have been derogable on this basis.

Educating the ECtHR judges in the law of armed conflict would clearly be helpful, but would they cooperate with such a course? It is a serious suggestion and carries some urgency, as many of the judges are from former Soviet bloc countries whose understandable mistrust of the police and military authorities may colour their approach to alleged abuses. Hence, they may tend to read a situation from the perspective of human rights, and not necessarily appreciate the legal regime which operates in armed conflict – be that internal or international. That may be what happened in Al Saadoon, where the court's judges came from Poland, UK, Malta, Bosnia, Slovakia, Moldova, and Montenegro.

Some commentators are optimistic that there is a glimmer of hope which can be discerned from the decision in Hassan, dealing with IAC, where it was held that

"It has long been established that the list of grounds of permissible detention in Article 5 § 1 does not include internment or preventive detention where there is no intention to bring criminal charges within a reasonable time. Moreover, the Court considers that there are important differences of context and purpose between arrests carried out during peacetime and the arrest of a combatant in the course of an armed conflict....As regards combatants detained as prisoners of war, since this category of person enjoys combatant privilege, allowing them to participate in hostilities without incurring criminal sanctions, it would not be appropriate for the Court to hold that this form of detention falls within the scope of Article 5 § 1(c)."

One could argue, mutatis mutandis, the same situation should apply in NIAC to those organised combatants who take up arms against the state and the multinational assistance force.

Another alternative is to withdraw from the ECHR altogether but that, one ventures to suggest, it isn't going to happen (inspite of voluble political rhetoric) and, in itself, poses a whole host of other issues which will take a paper to discuss.

Another option is for the UK to refuse to participate in any more UN missions. This will undermine the authority of the UN to resolve international crises, by depriving it of the services of a very competent military, but it may be too dangerous for our allies to operate alongside us if we operate under legal restrictions that they do not. This is particularly important in the gleaning of intelligence from detainees who may be passed from one contingent to another. While there are always workarounds, such as allowing the non-ECHR nation to do all the "hard knocking" and detaining of dangerous insurgents, it places British forces in a position where they are emasculated in their operational capability and may be regarded with some derision. It is not clear that the UK would be content to contribute forces in such circumstances. In any event, morale would surely be affected if soldiers were not allowed to soldier.

A further - and pragmatic - option is to carry on doing what we do, to achieve mission success, and accept that the ECtHR will find against the United Kingdom when someone complains - unless we settle out of court and thereby prevent the case from reaching Strasbourg, which could be more likely and will probably prove to be cheaper.

Which option would you choose?