Aurel Sari on the Alseran case

Dr Aurel Sari

Dr Aurel Sari of the University of Exeter has written this post on the legal risks of treating all captives as prisoners of war for Just Security in light of the recent decision in Alseran v. Ministry of Defence [2017] EWHC 3289 (QB). Excerpt:

Regarding the claim of unlawful detention, the sole presiding judge, Mr. Justice George Leggatt, found there was no basis in international law for Alseran’s interment at Camp Bucca. He also held that the review process adopted by British forces to determine the status of captured persons rested on a misunderstanding of the Geneva Conventions of 1949. These aspects of the judgment are of broader interest for several reasons. They shed light on the legal basis for the capture of persons in enemy territory not under belligerent occupation. They also expose a tension between the detention regimes applicable to prisoners of war and civilians, underscoring the need for the prompt categorization of captured persons and the legal risks involved in presuming that they enjoy prisoner of war status.

The author concludes:

The Alseran case demonstrates the legal risk involved in treating all captured persons whose status is in doubt as prisoners of war. A presumption in favor of prisoner of war status in situations where such a presumption is not mandated by Article 5 may lead a detaining power not to act with the necessary sense of urgency required by Article 75 in order to clarify the status and grounds for detention of persons who claim or may reasonably be suspected to be civilians.

For example, current British doctrine (JDP 1-10, Captured Persons, Annex 1B) requires a tribunal to consider the evidence against a captured person no later than 48 hours after they are captured “to determine whether that individual should be released, transferred to the host nation for criminal prosecution, or whether there are sufficient grounds to intern them for imperative reasons of security”. This system only works if all captured persons fall under it without any presumptions regarding their status. If the 48-hour review only applies to persons presumed or suspected to be civilian internees or criminal detainees, but excludes persons presumed or suspected to be prisoners of war on the basis that the latter are subject to a separate, but potentially slower, Article 5 tribunal process, the detaining authority runs the risk of not complying with Article 75 of Additional Protocol I and the corresponding requirements under human rights law (see Hassan, para. 106).

To avoid detaining captured persons unlawfully, detaining authorities must therefore set up a screening mechanism that conclusively determines, with minimum delay, the legal position of all individuals whose status is in doubt and who have not engaged in belligerent acts.