This view was acceptable to a diverse group of experts
Posted: Tue Feb 18, 2025 3:51 am
Thirdly, Mr Justice Leggatt argued that the humanitarian purpose of Common Article 3 and Additional Protocol II is inconsistent with the notion that these provisions are intended to provide a legal power to detain. Let us put aside for a moment the fact that security internment measures sometimes serve to promote humanitarian aims, such as when they are undertaken in anticipation of a terrorist attack to protect the civilian population.
The broader point here is that even norms of NIAC law do not exist in a vacuum. They are part and parcel of international humanitarian law, and each is established—to borrow Professor Michael Schmitt’s words (at p. 798)—on ‘a dialectical compromise between … two opposing forces’: humanity and military necessity. When analysing the object and purpose of the norms providing safeguards to the detained and interned persons, we should keep both of these broader overarching goals in mind. The judgment in Mohammed, however, seems to overemphasise the humanitarian aspect of the compromise to unhinge its military necessity counterpart.Once one takes both parts of the equation into account, the lawfulness of detention becomes less problematic.
Mr Justice Leggatt’s fourth argument was that States in drafting the relevant provisions would not have agreed to establish by treaty a power to detain in a NIAC as it would be ‘anathema’ to accept that a potential rebel group would have the right to exercise a function which is a core aspect of State sovereignty (para. 245). I agree with this analysis in part, but I would draw the opposite conclusion.
As stated above, States are generally reluctant to accept norms that enhance the status of the non-State actors they face in armed conflicts. Nonetheless, as the ICRC Commentary on the Additional Protocols reminds us (at p. 1345), ‘Protocol II and Common Article 3 are based on the principle of the equality of the parties to the conflict’. This is true particularly for AP II provisions concerning the treatment of detainees, as demonstrated by the drafters’ comments after these provisions were adopted in Committee I during the 1974–77 diplomatic conference. The fact that the norms in question apply equally to all conflict parties was both lauded by the supporters of strict equality of NIAC law like France (CDDH/I/SR.40, para. 34) and (begrudgingly) acknowledged by its detractors including Syria and Iraq (CDDH/I/SR.40, paras. 4 and 29, respectively).
Any express authorisation to detain would thus also have had to explicitly linkedin database resolve the thorny issue of potentially differentiated application to States and non-State actors, which the drafters clearly wanted to avoid. As we know, even the relatively benign phrase ‘parties to the conflict’ had to be purged from the Protocol out of fear that ‘it could have given rise to beginnings of recognition’ (ICRC Commentary, p. 1335). Nevertheless, in line with the underlying principle of equality, States realise that their non-State adversaries will inevitably resort to detention and internment. Accordingly, States sometimes agree on mutually acceptable constraints with a relevant non-State party (as, for example, in the 1991 Memorandum of Understanding agreed in the context of the conflict in Croatia), rather than unrealistically insist that it lacks power to detain.
convened by the ICRC and Chatham House in 2008 which included military and government lawyers. While the experts did not go so far as to endorse an IHL-based right to detain, according to the report produced after the meeting, they ‘quite easily’ reached a consensus that there is ‘an “authorization” inherent in IHL to intern persons in NIAC’ (at p. 3). The experts concluded (on the basis of a ‘prevailing agreement’ in the group) that this ‘inherent power … to intern’ belongs to ‘any party to a NIAC’ (at p. 4; emphasis added).
The broader point here is that even norms of NIAC law do not exist in a vacuum. They are part and parcel of international humanitarian law, and each is established—to borrow Professor Michael Schmitt’s words (at p. 798)—on ‘a dialectical compromise between … two opposing forces’: humanity and military necessity. When analysing the object and purpose of the norms providing safeguards to the detained and interned persons, we should keep both of these broader overarching goals in mind. The judgment in Mohammed, however, seems to overemphasise the humanitarian aspect of the compromise to unhinge its military necessity counterpart.Once one takes both parts of the equation into account, the lawfulness of detention becomes less problematic.
Mr Justice Leggatt’s fourth argument was that States in drafting the relevant provisions would not have agreed to establish by treaty a power to detain in a NIAC as it would be ‘anathema’ to accept that a potential rebel group would have the right to exercise a function which is a core aspect of State sovereignty (para. 245). I agree with this analysis in part, but I would draw the opposite conclusion.
As stated above, States are generally reluctant to accept norms that enhance the status of the non-State actors they face in armed conflicts. Nonetheless, as the ICRC Commentary on the Additional Protocols reminds us (at p. 1345), ‘Protocol II and Common Article 3 are based on the principle of the equality of the parties to the conflict’. This is true particularly for AP II provisions concerning the treatment of detainees, as demonstrated by the drafters’ comments after these provisions were adopted in Committee I during the 1974–77 diplomatic conference. The fact that the norms in question apply equally to all conflict parties was both lauded by the supporters of strict equality of NIAC law like France (CDDH/I/SR.40, para. 34) and (begrudgingly) acknowledged by its detractors including Syria and Iraq (CDDH/I/SR.40, paras. 4 and 29, respectively).
Any express authorisation to detain would thus also have had to explicitly linkedin database resolve the thorny issue of potentially differentiated application to States and non-State actors, which the drafters clearly wanted to avoid. As we know, even the relatively benign phrase ‘parties to the conflict’ had to be purged from the Protocol out of fear that ‘it could have given rise to beginnings of recognition’ (ICRC Commentary, p. 1335). Nevertheless, in line with the underlying principle of equality, States realise that their non-State adversaries will inevitably resort to detention and internment. Accordingly, States sometimes agree on mutually acceptable constraints with a relevant non-State party (as, for example, in the 1991 Memorandum of Understanding agreed in the context of the conflict in Croatia), rather than unrealistically insist that it lacks power to detain.
convened by the ICRC and Chatham House in 2008 which included military and government lawyers. While the experts did not go so far as to endorse an IHL-based right to detain, according to the report produced after the meeting, they ‘quite easily’ reached a consensus that there is ‘an “authorization” inherent in IHL to intern persons in NIAC’ (at p. 3). The experts concluded (on the basis of a ‘prevailing agreement’ in the group) that this ‘inherent power … to intern’ belongs to ‘any party to a NIAC’ (at p. 4; emphasis added).