It is true that the treaty provisions
Posted: Tue Feb 18, 2025 3:51 am
I do not see how CA3 or AP2 could possibly have been intended to provide a power to detain, nor how they could reasonably be interpreted as doing so, unless it was possible to identify the scope of the power. However, neither CA3 nor AP2 specifies who may be detained, on what grounds, in accordance with what procedures, or for how long. (para. 246).
Helpful vis-à-vis the identification of procedural standards of NIAC detention than they are with respect to the legal basis for detention. Yet, as Mr Justice Leggatt recognised later in his ruling, the requisite standard may be borrowed from IAC law in the form of justification by ‘imperative reasons of security’ (para. 249). This standard is not only endorsed by the ICRC (as acknowledged in the judgment in the same paragraph), but is also reflected in growing domestic and international jurisprudence concerning situations of NIACs (some of which is identified in Sandesh Sivakumaran’s treatise on the law of NIAC at p. 302 fn 460–461).
In a final point, the judge added that even if such an approach became linkedin database generally accepted, ‘it would still be necessary to identify procedures by which such determinations are to be made’ (para. 249). This is, however, a slightly surprising comment in the context of a judicial ruling—which is precisely one of the ways how ‘determinations’ are made in respect of applicable legal standards. In other words, the primary responsibility would lie with the military commander, but under certain circumstances this could be further judicially reviewed, thus at least alleviating this particular concern.
The High Court judgment in Mohammed v. MOD is a detailed, articulate, and well-argued legal opinion taking a stand on many of the controversies permeating the debate on detention in the context of extraterritorial military operations. Nonetheless, the position taken with respect to the (non-)existence of a legal basis to detain in NIACs under IHL is, at the very least, not free of doubt and it was my aim to highlight here some of the important countervailing considerations. It is worth adding that the defendant in the case has not been shy about expressing its discontent with the ruling and its desire to appeal it. This story is thus certainly not over yet.
Helpful vis-à-vis the identification of procedural standards of NIAC detention than they are with respect to the legal basis for detention. Yet, as Mr Justice Leggatt recognised later in his ruling, the requisite standard may be borrowed from IAC law in the form of justification by ‘imperative reasons of security’ (para. 249). This standard is not only endorsed by the ICRC (as acknowledged in the judgment in the same paragraph), but is also reflected in growing domestic and international jurisprudence concerning situations of NIACs (some of which is identified in Sandesh Sivakumaran’s treatise on the law of NIAC at p. 302 fn 460–461).
In a final point, the judge added that even if such an approach became linkedin database generally accepted, ‘it would still be necessary to identify procedures by which such determinations are to be made’ (para. 249). This is, however, a slightly surprising comment in the context of a judicial ruling—which is precisely one of the ways how ‘determinations’ are made in respect of applicable legal standards. In other words, the primary responsibility would lie with the military commander, but under certain circumstances this could be further judicially reviewed, thus at least alleviating this particular concern.
The High Court judgment in Mohammed v. MOD is a detailed, articulate, and well-argued legal opinion taking a stand on many of the controversies permeating the debate on detention in the context of extraterritorial military operations. Nonetheless, the position taken with respect to the (non-)existence of a legal basis to detain in NIACs under IHL is, at the very least, not free of doubt and it was my aim to highlight here some of the important countervailing considerations. It is worth adding that the defendant in the case has not been shy about expressing its discontent with the ruling and its desire to appeal it. This story is thus certainly not over yet.