United Kingdom, the Case of Serdar Mohammed Case Brief
Order ID: 89JHGSJE83839 Style: APA/MLA/Harvard/Chicago Pages: 5-10 Instructions:
General questions
1. (Paras. 1 10, 299 357) Who is Mr. Serdar Mohammed? What was the nature of Mr. Mohammeds claim before the High Court of Justice? What did Justice Leggatt decide?
II. The law relating to detention
2. (Paras. 20, 232 – 237) From the facts of the case, how would you qualify the situation in Afghanistan? Which rules of IHL apply? Does AP II bind the UK in Afghanistan? Is it customary law? Has it, as customary law, a different territorial field of application than it has as treaty law? (GC I-IV, Art. 3; P II, Art. 1)
3. (Paras. 241 250) In an IAC, does IHL provide rules as to the grounds and conditions under which a person may be detained? What are those rules? Does the IHL of NIAC provide for grounds and conditions of detention?
4. (Paras. 242 – 245) Why did States accept more stringent obligations under the law applicable in IACs than in NIACs? In light of your answer, do you agree with Justice Leggatt that it is reasonable to assume that if CA3 and/or AP2 had been intended to provide a power to detain they would have done so expressly?
5. (Paras. 243) If a particular act is not expressly authorised by rules of IHL, does this mean it is prohibited? Conversely, if a particular act is not expressly prohibited by rules of IHL, does this mean that it is permissible? How are these questions relevant in the present case?
6. (Paras. 244) What is the purpose of security internment in IAC? Do you agree with the statement that the purpose of Art. 3 Common and AP II is inconsistent with the notion that these provisions provide a legal basis for detention? (GC I IV, Art. 3; P II, Art. 5; GC IV, Art. 42 and 78)
7. (Paras. 246 – 249) Do you agree with what Justice Leggatt states in para. 246? Why? According to the suggestions mentioned in para. 249, from which rules could the requisite standard been drawn from? From which one of the four Geneva Conventions does it stem?
8. (Paras. 252) In light of the present case, please comment on the following statement: if IHL of NIAC does not provide the power to detain, parties would have no alternative but to kill their enemies. Does the authority to kill imply an authority to detain? To detain without domestic legal basis and without judicial control?
9. (Paras. 72 111) If it is domestic law that must provide the basis for detention, then whose legal framework counts in a situation where one state conducts detention operations on the territory of another? What is the relationship between this domestic law and international human rights law (IHRL)? Can the Security Council override domestic law? IHRL?
10. (Paras. 259) When the rules provided by the IHL of NIAC are insufficient, should reference be made to the rules of IAC by analogy or, instead, to IHRL?
11. (Paras 269 293) What is the principle of lex specialis, and how is it relevant for this case? What particular reading of the lex specialis principle articulated by Justice Leggatt in this case do you agree with?
12. Assuming that IHL of NIAC provided a legal basis for detention, might this have changed the conclusions reached in the present judgment? Why/Why not?
13. Under what conditions can internment be considered lawful? Does your answer remain the same for cases of internment carried out by armed groups? What legal framework is applicable to them? Considering the principle of equality of belligerents? If a UK soldier is detained by armed groups, is he a hostage? Why/Why not?
14.(Paras. 282 284) Do you agree with the courts reasoning which concludes that internment of POWs necessarily presupposes a derogation from obligations of the ECHR? Could, rather, internment be justified by considering IHL as the lex specialis? Could this explain the fact that States do not normally derogate from their human rights obligations in wartime? In your opinion, when resolving a conflict of two legal norms, is the lex specialis principle one of conflict avoidance or of conflict resolution? According to Justice Leggatt?
15. (Para. 291) What is your opinion in relation to the courts statement: Given the specificity of Article 5, there is little scope for lex specialis to operate as a principle of interpretation? In the context of an IAC, would preventive detention be considered legitimate, in the absence of a derogation?
16. Why was the detention up to 96 hours found to be in compliance with the applicable law? Why was the further detention of Mr Mohammed on the other hand considered unlawful? What should or could the UK have done to comply with the relevant law?
17. (Paras. 315 342) Assuming that IHL of IAC applied, would the detention of Mr. Mohammed have been lawful under IHL? Under the ECHR? In light of the reasoning of the court? (GC IV, Art. 42 and 78; ECHR, Art. 5)
III. Miscellaneous
18. (Paras. 127 143) Why does the court cite the Al-Skeini judgment? What does the court criticize about this judgment? Does jurisdiction under Article 1 ECHR exist whenever an act attributable to a contracting state has an adverse effect on anyone anywhere in the world? If jurisdiction is understood to rest on the exercise of control over individuals, is there a stopping point beyond which an act is not attributable to a State? Was this issue relevant in the present case? Why? [See Bankovic and Others v. Belgium and 16 other States, para. 75 and ECHR, Al Skeini et al. v. UK]
19. (Paras. 158 187) Why does the court argue that Mr. Mohammeds detention was still attributable to the UK and not to the UN? What, according to the court, differentiates the present case from Berhami and Saramati?
20. (Paras. 218 219) Why, according to the court, could the authorisation by the Security Council to take all necessary measures to fulfil the ISAF mandate not be interpreted as permitting detention for any longer than was necessary to deliver the detainee to the Afghan authorities? In this regard, how does the court refer to the Al-Jedda cases? In light of the situation in Iraq and Afghanistan, do you agree with the approach adopted by the court? [See ECrtHR, Al Jeddah v. UK]
21. (Paras. 240) Is it the ICRCs position that there is an inherent power to detain in the IHL of NIAC? Does the ICRC have an official position on the issue that is mentioned in the present case? Is it relevant that the article published in the International Review of the Red Cross referred to in the judgment indicates in a footnote that it merely represents the opinion of the author?
RUBRIC
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Introduction 45-41 points
The background and significance of the problem and a clear statement of the research purpose is provided. The search history is mentioned.
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91-84 points
The background and significance of the problem and a clear statement of the research purpose is provided. The search history is mentioned.
Methodology
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Content is well-organized with headings for each slide and bulleted lists to group related material as needed. Use of font, color, graphics, effects, etc. to enhance readability and presentation content is excellent. Length requirements of 10 slides/pages or less is met.
Average Score
50-85%
40-38 points
More depth/detail for the background and significance is needed, or the research detail is not clear. No search history information is provided.
83-76 points
Review of relevant theoretical literature is evident, but there is little integration of studies into concepts related to problem. Review is partially focused and organized. Supporting and opposing research are included. Summary of information presented is included. Conclusion may not contain a biblical integration.
52-49 points
Content is somewhat organized, but no structure is apparent. The use of font, color, graphics, effects, etc. is occasionally detracting to the presentation content. Length requirements may not be met.
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37-1 points
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75-1 points
Review of relevant theoretical literature is evident, but there is no integration of studies into concepts related to problem. Review is partially focused and organized. Supporting and opposing research are not included in the summary of information presented. Conclusion does not contain a biblical integration.
48-1 points
There is no clear or logical organizational structure. No logical sequence is apparent. The use of font, color, graphics, effects etc. is often detracting to the presentation content. Length requirements may not be met
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United Kingdom, the Case of Serdar Mohammed Case Brief