United Kingdom, The Case of Serdar Mohammed Case Study
Order ID: 89JHGSJE83839 Style: APA/MLA/Harvard/Chicago Pages: 5-10 Instructions:
. General Questions
1. (Document A, para. 43) Who is Mr Serdar Mohammed and why was he detained by the UK armed forces in Afghanistan? How long was he detained before he was transferred to the Afghan authorities?
2. (Document A, paras 39 40) What was the United Kingdoms detention policy in Afghanistan? Was it different from ISAFs policy? Why?II. Classification of the situation
3. (Document A, paras. 29 32) According to the facts of the case, how would you qualify the conflict in Afghanistan? Is it an IAC or NIAC? Were the ISAF forces occupying Afghanistan?
4. If it is a NIAC, what are the IHL treaty rules that apply? Are these rules applicable to the UK in Afghanistan? If not, are they applicable as customary international law? (GV I-IV, Art. 3; P II, Art. 1)
5. (Document A, paras. 167 173) What is an internationalised non-international armed conflict? Was the conflict in Afghanistan an internationalised NIAC? Are the IHL rules that apply to internationalised NIACs different from those that apply to traditional NIACs?III. Liability of the Secretary of State
6. (Document A, paras 49 72; Document B, paras 30, 34 – 38) Are the actions of the HM armed forces attributable to the UK? Did the United Nations Security Council have effective control over ISAF? If yes, could the UK still be held responsible for the detention of SM? Did ISAF authorise the UKs detention policy? According to the Supreme Court, was the UK entitled to adopt its own detention policy? Was the authority of UK forces to detain limited to detention pending the delivery of the detainee to the Afghan authorities?
7. (Document A, paras. 73 81) Can the Secretary of State invoke the immunities of the UN before domestic courts? Does ISAF or do ISAF personnel qualify as experts on mission for the purposes of section 22 of the Convention on the Privileges and Immunities of the United Nations?IV. Scope of application of the ECHR:
8. (Document A, para. 84) Can the ECHR apply to the actions of the HM armed forces in Afghanistan? Does it apply to all actions of HM armed forces, or only actions in detaining? Does the Secretary of State challenge the conclusion reached by the judge at the court of first instance (Justice Leggatt) that SM was within the jurisdiction of the UK?V. Relationship between IHL and international human rights law (IHRL)
9. What is meant by security internment? Is it authorised in IAC and NIAC? Is this a ground for detention under article 5 of the ECHR? If not, do IHL and IHRL conflict on the issue of detention?
10. (Document A, paras 107 124; Document B, paras 41 43, 68)
a. What is the principle of lex specialis? On the basis of which arguments can IHL be considered the lex specialis applicable in armed conflicts? What are the submissions of the Secretary of State? How does Justice Leggatt reject the Secretary of States submissions that IHL is the lex specialis? Does the Hassan judgment change the Court of Appeals conclusion?
b. What does the Supreme Court argue? What reasoning does Lord Sumption apply to argue that the obligations set forth in the ECHR, in particular the ones arising from article 5, should be interpreted in the light of the existence of an armed conflict?
c. Can, in your opinion, a determination on whether IHL or IHRL can constitute the lex specialis be made as a general rule or should it be assessed for each single rule applicable to the particular circumstances of the case? If IHL is considered lex specialis, should it be referred to for interpretative purposes, to support the analysis of the relevant IHRL norm in the light of their compatibility with IHL? Or should it be considered as implying a displacement of IHRL obligations, qualified by the applicability of IHL to the circumstances of the case?VI. Lawful authority under Afghan law and the UNSCR
11. (Document A, para. 125 131) What are the three sources the Secretary of State submits to give HM forces the power to detain in Afghanistan? Did Afghan law give the UK armed forces authority to detain SM?
12.(Document A, paras 140 163, Document B, paras 23 29, 39) Did UNSC Resolution 1890 give the UK armed forces authority to detain? Can, according to the UK Supreme Court, a UNSC Resolution constitute the legal basis to detain in a NIAC, even when it contains the expression all necessary means without further specification? If yes, on what grounds? Did it give them authority to detain SM beyond 96 hours? Do the findings of the Court of Appeal differ from the ones of the Supreme Court?
13. (Document A, para. 162) Do you agree with the Courts reasoning that, if detention under the Geneva Conventions in an IAC can constitute a ground for detention compatible with Article 5 ECHR (see Hassan), then detention under a UNSC Resolution could also be compatible with Article 5? Can the ECHR be displaced by a UNSC Resolution according to article 103 of the UN Charter? (See ECtHR, Al-Jedda v. the United Kingdom, Judgment, 7 July 2011, paras 100 109)
14. (Document B, paras 41 43, 68) How does the Supreme Court assess the interplay between the UNSC Resolution, as a universal tool adopted to ensure respect for international peace and security, and the ECHR, a regional instrument binding only on its State Parties?VII. The power to detain under IHL
15. What IHL rules apply in detention in IACs and NIACs? In IAC, does IHL provide rules as to the grounds and procedures under which a person may be detained? What about NIACs? If there are no such rules, does IHL still regulate the treatment of detainees? (GC III, Art. 21 and 118; GC IV, Art. 42, 78, 132 and 133; GC I-IV, Art. 3; P II, Art. 4, 5 and 6)
16. (Document B, paras. 58 66) Do you agree with the Supreme Court finding that the difference between GC IV, Arts 42 and 78 lays in the fact that internment in an Occupied Territory may be necessary for the security of those interned? Why? (GC IV, Art. 42 and 78)
17. (Document A, paras. 167 193, Document B, para. 10 – 12)
a. What are the positions of the parties on the issue of detention in IHL? What considerations does the Court of Appeal give to support their submissions?
b. How does the Supreme Court assess the main distinction between the legal regime governing detention in IACs and its applicability in NIACs? Why did States not make provision in the Geneva Conventions for authority to detain in NIACs? Does IHL apply equally to States and armed groups in NIACs? (GC III, Art. 21; GC IV, Art. 78; GC I-IV, Art. 3)
18. (Document A, paras 197 204, 214 219; Document B, paras 256 273) What are the arguments, as summarized by the Supreme Courts dissenting Judge Lord Reed, to support the view that detention in NIACs is authorized by IHL? And the arguments contrary to that view? What does Lord Reed conclude on the issue? Is there a need to show a positive power to detain, or does the absence of a prohibition suffice to give authority to detain? Under IHL alone? Under IHRL? Is the power to detain in NIACs implied in the language of GC I-IV, Art. 3 and P II? Which view does the ICRC support? Is the ICRCs view binding? Why? Why not?
19. (Document A, paras 205 212, 214 219; Document B, para. 15) Are the rules of IHL only prohibitive or do they authorise some forms of behaviour? Is there an authority to kill in NIACs? If yes, does that imply a fortiori a power to detain in NIACs? How does the judge of first instance handle such arguments? Does the Court of Appeal agree? (Document A, para. 212) What does the statement of the Court of Appeal concerning the Catch-22 issue imply? On what basis does the Court of Appeal set aside the a fortiori argument? What is the position of the Supreme Court on the issue? (Document B, para. 15) What does the Supreme Court refer to when it argues that the detention of an enemy fighter [ ] may be an obligation? Under IHL, is there a clear obligation to capture rather than kill upon the belligerents?
20. (Document A, paras 217 218, 242; Document B, para. 17) If we accept that there is an implied power to detain in treaty rules of NIAC, what grounds and procedures must be respected? Does IHL of NIAC provide such rules? Can we apply the provisions of IHL of IAC by analogy? If yes, which IHL provisions of IAC should apply? Only the provisions of GC IV, or those of GC III? (GC III, Arts 21 and 118; GC IV, Arts 42, 78, 132 and 133)
21. (Document A, paras 220 236; Document B, paras 14 16) In the absence of a power to detain in conventional IHL of NIACs, can such a power be implied in customary international law (CIL)? What are the required elements for a rule of CIL? Are the requirements for IHL rules of CIL different? Can the Copenhagen principles be relied on to establish a customary power to detain in NIAC? Why? Why not? Are there examples of State practice that prove the existence of such a norm? Does the Supreme Court find that there is a legal basis in CIL for detention in NIAC? Why? Why not?
22. (Document A, paras 237 241) Does the customary principle of distinction imply a fortiori a power to detain for security reasons in NIAC? Does the ICRC and do commentators support this view? How does Court of Appeal handle this argument? (CIHL, Rule 1)
23. (Document A, paras 189 190, 205, 211 212) If there is no power to detain in NIAC under treaty or customary rules of IHL, on what legal basis can a State participating in an internationalised NIAC detain? Does the law of the State where the detention occurs apply? Or the domestic law of the State that is detaining? If neither of these legal regimes authorise security detention, must the detaining State release the detainees? What if they still represent a threat to the security of the armed forces? Can they be targeted once they are released?
24. (Document B, paras 87 89, 352 353) Does the Supreme Court consider that the ground of imperative security reasons, justifying detention under the authority of the UNSCR, was met in the case of SM? Why? Can the value of the intelligence information that SM could provide be considered sufficient alone to determine the existence of a reason of imperative security? In your opinion? According to Lord Sumption? Does Lord Reed reach a different conclusion?VIII. Procedural safeguards:
25. (Document B, paras 58 66, 253 255)
a. Which procedural guarantees do civilian internees benefit from under IHL? Are there similar provisions for POWs? Why? Why not? In the opinion of the Supreme Court? (GC IV, Arts 43 and 78)
b. Can a civilian be tried for the mere fact of having participated in hostilities? In both IACs and NIACs? Can combatants in an IAC? And members of an armed group party to a NIAC?
26. (Document A, paras 254 276, 281 298) What procedural safeguards does Article 5 of the ECHR guarantee? Do the Article 5 requirements apply during NIACs, or should they be modified to take into account the existence of armed conflicts? According to the Secretary of State, what procedures apply during NIACs? Do the procedural safeguards identified by the Secretary of State exist in internationalised NIACs? Were these procedural safeguards satisfied in SMs case, according to the Appeals Court?
27. (Document B, paras. 67 68, 95 – 109) According to the Supreme Court, what should States Parties to the ECHR do, in order to comply with the requirements of Article 5, where the legal basis for the detention is found in a UNSC Resolution? What is, according to the UK Supreme Court, the minimum standard of protection that needs to exist to ensure that the detention is not arbitrary? Does the UK Supreme Court find that the procedural requirements of article 5(3) ECHR were respected in SMs case? Why? Why not? Does the UK Supreme Court find that the right to habeas corpus is available in armed conflict situations? On which basis? Was this guarantee available to SM? How does the Supreme Court deal with the practical difficulties of exercising habeas corpus in the circumstances of the case? Was there a breach of Article 5(4) ECHR? Why?
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United Kingdom, The Case of Serdar Mohammed Case Study