Internment is a frequent occurrence in armed conflicts. Particularly in the aftermath of the litigation surrounding the Guantanamo Bay detention facility and the US’s justification for the displacement of human rights norms, questions about its authority to detain individuals in non-international armed conflicts (“NIACs”) received increased attention. This post will take a closer look at these questions – in particular, the legal basis for detention in NIACs under international humanitarian law (“IHL”) and human rights law (“IHRL”).

In international armed conflicts (“IACs”), the detention regime is sufficiently grounded in the Geneva Conventions. Articles 21 and 4A of the third Geneva Convention confer on states a right to detain prisoners of war, only so long as the circumstances that made internment necessary continue.

In comparison, in NIACs, the IHL basis itself is debatable. For one, the Geneva Conventions do not authorise detention or even prescribe procedures to challenge detention in NIACs. At most, Common Article 3 regulates the treatment of persons deprived of their liberty and Articles 5 and 6 of Additional Protocol II contemplate that internment occurs in an NIAC. This is not to say that contrary views don’t exist. Goodman constructed a case for why IAC rules on detention can be extended by analogy. Goodman reasoned that IHL itself permits States to a fortiori undertake those practices in an NIAC that they can implement in an IAC. However, this argument is not completely reasonable since some NIAC rules are arguably more restrictive, in that they divest ‘fighters’ of privileges that they would otherwise enjoy in IACs – whether it is combatant immunity or rules of targeting.

This question came up before the British High Court in the Serdar Mohammed case. The claimant alleged that his capture and detention by Her Majesty’s armed forces in Afghanistan, from 7 April 2010 till 25 July 2010, was unlawful because it exceeded the authorized period of detention as per the arrangement between Her Majesty’s armed forces and the State of Afghanistan. This amounted to a breach of his right to liberty under Article 5 of the European Convention of Human Rights (“ECHR”). In response, the Secretary of State argued that Article 5 of the ECHR was not the correct legal basis here, since IHL rules on detention in NIACs displace or modify the ECHR. To establish that IHL permits detention in NIACs, the Secretary of State theorized that the implicit power to kill those participating in hostilities in an NIACSs would have to logically encompass the power to detain. However, the Court rejected this argument noting that it was not convinced that the regulation of restrictions of right to life under IHL could be read as an ‘authorization’ to kill. Even if it is, the power to kill does not go further than justifying the capture of a person who may lawfully be killed.

The Secretary of State also suggested that the norms of IACs under the Geneva Conventions and Additional Protocols could be transposed to NIACs by analogy. However, the Court was not sympathetic to this proposition either. Mainly because the drafting history of the Geneva Conventions reflected a clear intent not to authorise detention in Common Article 3. The drafters feared that such a power would enable insurgents to claim that they would also be entitled to detain captured members of the government’s army by operation of the principle of equality of belligerency.

Upon appeal, the British Supreme Court employed alternative reasoning to authorize detention. Instead of IHL, the Court grounded its ruling in IHRL. The Court essentially followed the Hassan case, where the applicant’s brother was detained in Iraq by British forces for over 6 months in 2003.  The applicant’s primary contention was that the Geneva Conventions, in so far as they applied to the NIAC in Iraq at the time, did not permit the British forces to act in violation of Article 5(1) of the ECHR. There the European Court of Human Rights (“ECtHR”) found that Article 5(1) of the ECHR, which permits detention on six permitted grounds, can also invoked to authorize detention during international armed conflicts. The only caveat the Court added was for such detention to not be unduly broad, opaque or discretionary. The Court in Serdar Mohammad went one step further, to extend Article 5(1) to NIACs.

Fortunately, in so doing, the British Supreme Court did not displace IHL completely (an erstwhile view that met with much censure). It chose instead to marry IHRL with IHL. Nonetheless, the decision must still be viewed with caution. For one, it offers little justification for why State parties should not invoke the ECHR’s derogation clause under Article 15.

Moreover, the Court in Serdar Mohammed did not engage with the past jurisprudence of the ECtHR on detention in NIACs where the only condition on which detention was allowed was if there was a clearly worded Security Council resolution to support such detention. Even if the requirement of a resolution is seen as dispensable, it is callous to ignore the requirement of explicitness – either in the IHRL/IHL treaty or in State support (in case the position attains customary status).

With treaty language such as that in the ICCPR (illustratively, Article 9 only proscribes arbitrary arrest or detention), it is easier to cull out an IHRL basis for detention. However, this task is far more onerous when it comes to the ECHR – which does not contain harmonizing language per se. Till such time as explicit authorization is missing, States should strive to comply with the rule of derogation. To ensure effective compliance, international courts should also work towards setting a baseline below which rights cannot be derogated from, thereby protecting the integrity of the IHRL/IHL treaty and identifying the minimum rights that States are bound to afford to those within their jurisdiction.

---