The judge then proceeds to disagree with the implicit
Posted: Mon Feb 17, 2025 8:25 am
Accordingly, the judge concluded that detention up to 96 hours, per the ISAF detention policy, for the purpose of transferring the detainees to Afghan custody, was included within the mandate, but that longer detention for the purpose of intelligence-gathering, under the UK’s own detention policy, was not (paras. 224-227). No conflict thus arose between UNSC resolutions and Article 5 ECHR, and Article 103 of the Charter was inapplicable.
(5) SM’s detention was not authorized by IHL either, since IHL in NIACs contains no detention authority, and cannot prevail over Article 5 ECHR as lex specialis (para. 228 ff). The judge noted that:
239. Neither CA3 nor Article 5 of AP2 contains any express statement that it is lawful to deprive persons of their liberty in an armed conflict to which these provisions apply. All that they do is to set out certain minimum standards of treatment which must be afforded to persons who are detained during such an armed conflict. The MOD argues, however, that a power to detain is implicit in CA3 and AP2.
240. This argument has the support of some academic writers and of the International Committee of the Red Cross (“ICRC”). Thus, Jelena Pejic, the legal advisor to the ICRC, has written: “Internment is … clearly a measure that can be taken in non-international armed conflict, as evidenced by the language of [AP2], which mentions internment in Articles 5 and 6 respectively …”
NIAC detention authority argument for five reasons (note, however, that I think that the paper by Jelena Pejic was written in her personal capacity). First, because powers to deprive individuals of liberty should not be inferred indirectly or by implication (para. 242). Second, because the fact overseas chinese in canada dataof detention in NIAC is not the same as authorization of such detention (para. 243). Third, the relevant treaty provisions, such as CA3, are of humanitarian character only and refer to treatment in detention, not detention itself (para. 244). Fourth, IHL-based authority to detain in NIACs would mean that non-state actors, i.e. rebels and other organized armed groups, would also have authority to detain, which would be anathema to most states (para. 245). Fifth, neither CA3 nor AP2 specify who can be detained, when and for how long.
I think the judge got it exactly right on this point. Detention authority in NIACs exists only on the basis of domestic law, and here there was no such basis in either Afghan law or UK law.
He then proceeds to look at the lex specialis principle, and correctly identifies its three different variants (total displacement, partial displacement, and as a tool of interpretation – para. 269 ff). He finds the total displacement version (i.e. that IHL applies to the complete exclusion of human rights) untenable, and considers that:
279. The difficulty is increased by the fact that the Convention contemplates and makes provision within itself for situations of war. Thus Article 15 (quoted at paragraph 154 above) permits a state to derogate from its obligations under the Convention in a time of emergency. The clear and necessary implication of Article 15 is that the Convention continues to apply in a situation of armed conflict except to the extent that (a) a contracting state derogates from its obligations under the Convention and (b) such derogation is permitted by Article 15.
(5) SM’s detention was not authorized by IHL either, since IHL in NIACs contains no detention authority, and cannot prevail over Article 5 ECHR as lex specialis (para. 228 ff). The judge noted that:
239. Neither CA3 nor Article 5 of AP2 contains any express statement that it is lawful to deprive persons of their liberty in an armed conflict to which these provisions apply. All that they do is to set out certain minimum standards of treatment which must be afforded to persons who are detained during such an armed conflict. The MOD argues, however, that a power to detain is implicit in CA3 and AP2.
240. This argument has the support of some academic writers and of the International Committee of the Red Cross (“ICRC”). Thus, Jelena Pejic, the legal advisor to the ICRC, has written: “Internment is … clearly a measure that can be taken in non-international armed conflict, as evidenced by the language of [AP2], which mentions internment in Articles 5 and 6 respectively …”
NIAC detention authority argument for five reasons (note, however, that I think that the paper by Jelena Pejic was written in her personal capacity). First, because powers to deprive individuals of liberty should not be inferred indirectly or by implication (para. 242). Second, because the fact overseas chinese in canada dataof detention in NIAC is not the same as authorization of such detention (para. 243). Third, the relevant treaty provisions, such as CA3, are of humanitarian character only and refer to treatment in detention, not detention itself (para. 244). Fourth, IHL-based authority to detain in NIACs would mean that non-state actors, i.e. rebels and other organized armed groups, would also have authority to detain, which would be anathema to most states (para. 245). Fifth, neither CA3 nor AP2 specify who can be detained, when and for how long.
I think the judge got it exactly right on this point. Detention authority in NIACs exists only on the basis of domestic law, and here there was no such basis in either Afghan law or UK law.
He then proceeds to look at the lex specialis principle, and correctly identifies its three different variants (total displacement, partial displacement, and as a tool of interpretation – para. 269 ff). He finds the total displacement version (i.e. that IHL applies to the complete exclusion of human rights) untenable, and considers that:
279. The difficulty is increased by the fact that the Convention contemplates and makes provision within itself for situations of war. Thus Article 15 (quoted at paragraph 154 above) permits a state to derogate from its obligations under the Convention in a time of emergency. The clear and necessary implication of Article 15 is that the Convention continues to apply in a situation of armed conflict except to the extent that (a) a contracting state derogates from its obligations under the Convention and (b) such derogation is permitted by Article 15.