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IS THERE A RIGHT TO DETAIN CIVILIANS BY FOREIGN ARMED FORCES DURING A NON-INTERNATIONAL ARMED CONFLICT?

Published online by Cambridge University Press:  17 August 2012

Peter Rowe
Peter Rowe
Affiliation:
Professor of Law, University of Lancaster, p.rowe1@lancaster.ac.uk.
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Abstract

This article considers whether there is any lawful authority for foreign armed forces assisting a territorial State during a non-international armed conflict to arrest and detain civilians. Taking the backdrop of Iraq and Afghanistan it considers relevant UN Security Council resolutions including Resolution 1546 (2004) relating to Iraq which authorized the multi-national force (MNF) ‘to take all necessary measures’ and provided for the internment, for imperative reasons of security, of civilians. In respect of Afghanistan, a number of resolutions authorized the International Assistance Stabilisation Force (ISAF) to ‘take all necessary measures’. It challenges the notion that the positive rights under international humanitarian law applicable to an international armed conflict apply, mutatis mutandis, to a non-international armed conflict, where national law (including human rights law having extra-territorial effect) is of primary (although not of exclusive) significance. It also considers which body of national law, that of the sending or that of the receiving State, applies to determine the lawfulness of detention of foreign civilians. The article recognizes that the arrest and detention of civilians may be necessary during a non-international armed conflict but concludes that the lawful justification for doing so needs to be clearly established.

Type
Shorter Article
Information
International & Comparative Law Quarterly , Volume 61 , Issue 3 , July 2012 , pp. 697 - 711
Copyright
Copyright © British Institute of International and Comparative Law 2012

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References

1 [2010] EWHC 1445 (Admin).

2 At para 17 ibid Richards LJ went on to say that ‘the Secretary of State takes the view that the UK has no power of indefinite internment.’

3 Solis, G, The Law of Armed Conflict (Cambridge University Press, 2010, 224–5)CrossRefGoogle Scholar draws attention to the fact that the term ‘detainee’ is not defined in any of the IHL treaties nor is it applied consistently.

4 The number of detainees held by the Multi-National Force (MNF) in Iraq in June 2005 was reported to be ‘6,000 … and despite the release of some detainees, their number continues to grow’, Report of the Secretary-General pursuant to paragraph 30 of Resolution 1546 (2004), S/2005/373, para 72. By the time of the House of Commons Select Committee on Defence, Second Special Report, session 2007–08, the UK had released all its ‘security internees [except for two, who were the applicants in R (on the Application of Al-Saadoon and Mufdhi) v Secretary of State for Defence [2009] EWCA Civ 7]’, para 26. For the procedure adopted to determine whether a detainee in Iraq should be released see Hansard, House of Commons, vol 485, col 54W (9 December 2008). For the numbers detained by UK armed forces in Afghanistan see Hansard, House of Commons, vol 488, col 394 (26 February 2009). The history of transfers from British to Afghan authorities is set out in The Queen (on the Application of Maya Evans) v Secretary of State for Defence (n 1), Richards LJ, para 25. See also Hansard, House of Commons, vol 488, col 396 (26 February 2009).

5 For a discussion of the meaning of ‘deprivation of liberty’ in this context see J Kleffner, ‘Operational Detention and the Treatment of Detainees’ in T Gill and D Fleck (eds), The Handbook of the International Law of Military Operations (Oxford University Press, 2010) para 25.01.

6 See Amnesty International v Chief of the Defence Staff for the Canadian Forces, 2008 FC 336 (an appeal, [2009] FCR 149, dealt with the treatment of detainees during Canadian detention and prior to transfer to the Afghan authorities). It is not proposed to discuss the detention practice of US armed forces in this article.

7 A distinction needs to be drawn between arrest for criminal offences and internment for imperative reasons of security. See discussion below; Al-Saadoon and Mufdhi v United Kingdom (2010) 51 EHRR 9, para 46.

8 See, for example, R (Application of Hassan) v Secretary of State for Defence [2009] EWHC 309 (Admin).

9 The Northern Ireland (Emergency Provisions) Act 1973, s 12. The power to search a dwelling house was given by s 13. The United Kingdom government never recognized the situation in Northern Ireland as an ‘armed conflict’, although it did issue a derogation notice to the Council of Europe in relation to art 5 of the European Convention on Human Rights. It might be argued that the issue of a derogation notice (and certainly one approved by the European Court of Human Rights) would indicate a state of emergency having the same quality as recognition of an armed conflict. See generally, Dickson, B, The European Convention on Human Rights and the Conflict in Northern Ireland (Oxford University Press, 2010) 98–102CrossRefGoogle Scholar. For the approval of a derogation notice see Brannigan v United Kingdom (1994) 17 EHRR 539, para 66 and for comment on whether it could apply extraterritorially, R (Al-Jedda) v Secretary of State for Defence [2007] UKHL 57, Lord Bingham, para 38. Compare the position argued below (n 79).

10 Operative paragraph 11 and letter from Colin Powell, the US Secretary of State, attached to the Resolution. The European Court of Human Rights has interpreted this authorization to States as being subject to their human rights obligations, Al-Jedda v United Kingdom, App no 27021/08, Judgment, Grand Chamber, 7 July 2011, para 105.

11 Resolution 1890 (2009) para 2. For an earlier resolution see 1386 (2001).

12 Prosecutor v Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (2 October 1995) para 70. See also Prosecutor v Haradinaj, IT-04-84-T (3 April 2008) para 37; Prosecutor v Boskoski, IT-04-82A (19 May 2010) para 23. See generally, Cullen, A, The Concept of Non-International Armed Conflict in International Humanitarian Law (Cambridge University Press, 2010) 117ffCrossRefGoogle Scholar. For the view that the conflict in Afghanistan in the 1980s was a non-international armed conflict see Hesam v Public Prosecutor, Supreme Court, 8 July 2008, LJN no BC7418 discussed at (2009) 60 NYBIL 443.

13 See UN Security Council Resolution 1917 (2010) para 17; Resolution 1386 (2002) which referred to ‘all necessary measures to fulfil the mandate’; Resolution 1659 (2006) which recognized that NATO was leading ISAF (International Stabilisation Assistance Force) and welcomed its continued expansion across Afghanistan; Resolution 1707 (2006) which required ISAF to work in close consultation with OEF (Operation Enduring Freedom) and called upon ISAF ‘to work in close consultation with the Government of Afghanistan … in the implementation of the force mandate’. The force mandate can be found in Resolution 1386 (2001) and in its expanded form in Resolution 1510 (2003).

14 Resolution 1917 (2010) para 17.

15 The definition of an armed conflict in Tadic (n 12) stresses that it will exist over the whole of the territory of the State ‘whether or not actual combat’ is occurring in only part of it. The nature of the International Stabilisation Assistance Force (ISAF) also leads to this conclusion. It is suggested that categorizing the conflict as ‘internationalised’, due to the participation of ISAF, merely provides a factual rather than a relevant legal distinction.

16 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to Victims of Non-International Armed Conflicts (1977).

17 Protocol II, art 1; Common art 3 refers to ‘each Party to the conflict’. Although Common art 3 also refers to ‘armed forces’ it cannot be referring only to armed forces of the State. The role of a police force is envisaged in IHL as to apply national law. Since they would be an organ of a ‘party to the conflict’ (the State) they would also be required to avoid the proscriptions imposed by IHL during a non-international armed conflict. Compare the position if the National Police take their orders from the Afghan National Army, see Henckaerts, J-M and Doswald-Beck, L, Customary International Humanitarian Law (Cambridge University Press, 2005)CrossRefGoogle Scholar Rule 139.

18 The factual indicia for the status of such a group can be seen in Prosecutor v Haradinaj, (n 12) para 50ff (re-trial ordered on appeal); Prosecutor v Boskoski, (n 12) para 23.

19 The definition of armed conflict (n 12) ‘serves to distinguish non-international armed conflict from banditry, riots isolated acts of terrorism, or other similar situations’, Prosecutor v Haradinaj, (n 12) para 38.

20 See the Vienna Convention on the Law of Treaties, 1969, art 31(1). All States are party to the Geneva Conventions 1949. In Afghanistan, some participating States are not party to Protocol II. They would, of course, be bound by those obligations contained in the treaty which represented customary international law.

21 Common art 1 to the Geneva Conventions 1949, which would apply to Common art 3 and to Protocol II. As to the attitude of States to their art 1 obligations see Moir, L, The Law of Internal Armed Conflict (Cambridge University Press, 2002)CrossRefGoogle Scholar 249.

22 See J-M Henckaerts and L Doswald-Beck (n 17) Rule 139, which refers to ‘each party to the conflict’.

23 Geneva Convention IV 1949, arts 41, 42, 43, which refer to aliens in the territory of a party to the conflict. For the position under occupation see arts 68, 71, 78, 79. Where a protected person is charged by the occupying State with an offence for which the sentence could be two years or more the protecting power must be notified, art 71. Some civilians (ie not members of armed forces of a State) may qualify for prisoner of war status under Geneva Convention III, art 5. Those protected by Geneva Conventions I, II and II are not considered further.

24 Compare where the period of occupation has been extensive, eg in the territories occupied by Israel since 1967; Dinstein, Y, The International Law of Belligerent Occupation (Oxford University Press, 2009)CrossRefGoogle Scholar, chap 6.

25 Geneva Convention IV, arts 69, 76.

26 Geneva Convention IV, art 147; Rome Statute of the International Criminal Court 1998, art 7(1)(e). See J Kleffner, in T Gill and D Fleck (eds) (n 5) para 25.03.

27 The same argument can be made in respect of Security Council resolutions. In dealing with the rights of civilians implied powers, such as those which are argued to follow from an obligation to ‘take all necessary measures’ in a particular resolution, are hardly satisfactory as a lawful basis for action. For examples of purported implied powers see McLoughlin, R, ‘The Legal Regime Applicable to Use of Force When Operating under a United Nations Security Council Mandate Authorising “All Necessary Measures”’ (2007) 12 JC&SL 403Google Scholar (to arrest) and 410–11; Guilfoyle, D., ‘Counter-Piracy Law Enforcement and Human Rights’ (2010) 59 ICLQ 159CrossRefGoogle Scholar. Compare Behrami v France; Seramati v France, Germany, Norway, [2007] 45 EHRR SE 10, para 124, ‘Having regard to … UNSC Resolution 1244 [1999] (para 9 as well as para 4 of Annex 2 to the Resolution) … the Court considers it evident that KFOR's security mandate included issuing detention orders.’ It also appears unsatisfactory to rely on an implied power under IHL to arrest and detain. Compare J Kleffner (n 5).

28 Protocol I, art 43(2).

29 Protocol I, art 52(2) and, in effect, kill a proportionate number of civilians, art 51(5)(b).

30 Geneva Convention III, 1949, art 5 and be subjected to the law of the detaining power, art 82.

31 Geneva Convention IV 1949, art 27.

32 Geneva Convention IV arts 64–7.

33 This could be its normal criminal law with, or without, the addition of any particular emergency law. In addition, it might be supplemented by the implementation of specific war crimes applicable during a non-international armed conflict. This is the effect of a State implementing art 8(2)(c) and (e) of the Rome Statute 1998 to give effect to its complementarity provisions. See generally, Sandoz, Y et al. (eds), Commentary on the Additional Protocols (Geneva, 1987)Google Scholar para 4599. It could also be ‘rebel law’, see (n 43).

34 Common art 3; Protocol II, arts 4, 13(2), 14–17.

35 Even if by implication it does confer such a power this does not determine that IHL applies in place of national law, although it is recognized that it has given rise to debate as to whether the appropriate model is one of law enforcement or of IHL. See, for example, the articles contained in (2008) 90 IRRC 501–750.

36 Common art 3(1)(d) to the Geneva Conventions 1949; Protocol II, art 5. See Rona, G, ‘An Appraisal of US Practice Relating to “Enemy Combatants”’ (2007) 10 YBIHL 240Google Scholar; Hakimi, M, ‘International Standards for Detaining Terrorist Suspects: Moving Beyond the Armed Conflict Divide’ (2008) 33 YJIntlL 382Google Scholar. Common art 3 and Protocol II do, however, direct attention as to how detained civilians are to be treated. See generally, Brannagan, C, ‘The Copenhagen Process on the Handling of Detainees in International Military Operations: A Canadian Perspective on the Challenges and Goals of Humane Warfare’ (2010) 15 JC&SL 501Google Scholar.

37 There are many examples in that part of IHL which applies to an international armed conflict, where a form of negative or positive drafting of the treaty provisions can be said to show no practical difference. Thus, Geneva Convention III, art 13 requires that ‘prisoners of war must at all times be humanely treated.’ It would make no practical difference if this requirement was stated negatively, to the effect that it is prohibited to treat prisoners of war inhumanely.

38 The Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (2009) 90 IRRC 991Google Scholar treats a civilian having a ‘continuous combat function’ as someone who takes a direct part in hostilities. In consequence, he can be attacked. By itself this does not give the armed forces of a State, operating in the course of a non-international armed conflict, any lawful power under national law to attack such an individual merely because of this functionary position he holds. In The Queen (on the Application of Maya Evans) v Secretary of State for Defence (n 1) para 17, Richards LJ stated that ‘the law of armed conflict applies to military operations conducted in internal armed conflict.’ He went on to say that ‘subject to compliance with that law, UK armed forces operating in Afghanistan are authorised to kill … insurgents.’ Quaere whether this statement is correct in the general way in which it is stated.

39 See generally, Zegveld, L, The Accountability of Armed Opposition Groups in International Law (Cambridge University Press, 2002) 13CrossRefGoogle Scholar; G Nolte, ‘The Different Functions of the Security Council with respect to Humanitarian Law’ in V Lowe et al (eds), The United Nations Security Council and War (Oxford University Press, 2008) 529. The Report of the International Commission of Inquiry to Investigate all Alleged Violations of International Human Rights Law in the Libyan Arab Jamahiriya, A/HRC/17/44, para 40 (1 June 2011) determined that a non-international armed conflict existed in Libya by late February 2011.

40 For the limitations on the power to derogate see the International Covenant on Civil and Political Rights 1966, art 4; European Convention on Human Rights art 15. It is generally accepted that IHL can apply alongside human rights treaties where it is relevant. This is quite different from arguing that IHL replaces national law in its entirety during a non-international armed conflict.

41 He will, of course, be liable to both systems but his liability under international law cannot preclude his liability under national law unless this is specifically provided. His national law is likely to take into account the particular circumstances (the armed conflict) and the rules of engagement (ROE) issued to him in determining whether his actions were lawful under national law. In relation to art 5 the European Court of Human Rights has drawn attention to the principle that ‘any deprivation of liberty must not only have been effected in conformity with the substantive and procedural rules of national law (emphasis added) but must equally be in keeping with the very purpose of art 5 [and] … to ensure the accountability of the authorities to account for individuals under their control’, Bazorkina v Russia, App no 69481/01, Judgment 27 July 2006, para 146; Gelayevy v Russia Judgment, 15 July 2010, para 155. Where he is alleged to have committed an offence under the Rome Statute 1998, art 8.2(c) or (e) the complementarity provisions provide the primary jurisdiction to be trial before a national court.

42 See n 38.

43 There is an argument to the effect that during a non-international armed conflict members of organized armed groups should, upon capture, be treated more favourably than other categories of fighters in order to try to ensure reciprocity of treatment. This is not currently reflected in IHL. Were it to do so it would give the armed forces of the State and members of organized armed groups a more equal status under international law assuming that the organized armed group considered itself bound by IHL and was able to implement the appropriate obligations. See generally, Sivarakumaran, S, ‘Binding Opposition Groups’ (2006) 55 ICLQ 369CrossRefGoogle Scholar; Somer, J., ‘Jungle Justice: Passing Sentence on the Equality of Belligerents in Non-International Armed Conflict’ (2007) 89 IRRC 655Google Scholar. For codes of conduct adopted by organized armed groups see La Rosa, A-M and Wuerzner, C, ‘Armed Groups, Sanctions and the Implementation of International Humanitarian Law’ (2008) 90 IRRC 333Google Scholar. Relevant UN Security Council resolutions often purport to remind all parties to a non-international armed conflict of their obligations under IHL and human rights law. See, for example, Resolutions 1325 (2000) para 10; 1564 (2004) para 10; 1894 (2009) para 10.

44 Arts 5 and 6 of Protocol II clearly recognize this. Art 5 of Protocol II ‘covers both persons being penally prosecuted and those deprived of their liberty for security reasons, without being prosecuted under penal law’, Y Sandoz et al (eds), (n 33) para 4568. The latter group must refer to those who, under national law, are deprived of their liberty by way of some form of internment without being prosecuted under penal law. See also UK Ministry of Defence, The Manual of the Law of Armed Conflict (Oxford University Press, 2004)Google Scholar, para 15.40.2 and art 6(5) relating to national amnesty.

45 It is hardly mentioned (other than to show that rebels are not entitled to prisoner of war status) in leading works such as L Moir, The Law of Internal Armed Conflict (n 21); Zegveld, L, The Accountability of Armed Opposition Groups in International Law (Cambridge University Press, 2002)CrossRefGoogle Scholar; Fleck, D (ed), The Handbook of International Humanitarian Law (2nd edn, Oxford University Press, 2008)Google Scholar, although see para 1202. Compare the UK Ministry of Defence, The Manual of the Law of Armed Conflict (n 44) para 15.40.2; G Solis, (n 3) 154; Rowe, P, The Impact of Human Rights Law on Armed Forces (Cambridge University Press, 2006), 176–80Google Scholar.

46 It is difficult to accept the argument that ‘IHL is uniformly less restrictive in internal armed conflicts than in non-international [sic] armed conflict [and that] whatever is permitted in international armed conflict is permitted in non-international [sic] armed conflict,’ Goodman, R, ‘The Detention of Civilians in Armed Conflict’ (2009) 103 AJIL 50CrossRefGoogle Scholar. Compare Prosecutor v Tadic (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) IT-84-1-AR72, Judgment, 2 October 1995, para 126.

47 Bazorkina v Russia, Judgment 27 July 2006, para 146; It is unlikely that the ECtHR is accepting in this case that a State can choose between pursuing the combat or the law enforcement options against insurgents. See generally, J Bellinger, ‘Legal Issues in the War on Terrorism’ <http://www.state.gov/s/l/2006/98861.htm> accessed 12 June 2012. See also also McCann v United Kingdom (1996) 21 EHRR 97, para 154; Nachova v Bulgaria (2006) 42 EHRR 43, paras 99–100; Ramsahai v The Netherlands (2008) 46 EHRR 43, para 321.

48 It is argued that the following phrase appearing in the letter from Colin Powell, attached to UN Security Council Resolution 1546 (2004) is misleading. This stated that ‘combat operations against members of [defined] groups [will take place after Iraq regained its sovereignty and] that the forces that make up the MNF are and will remain committed at all times to act consistently with their obligations under the law of armed conflict, including the Geneva Conventions.’ This statement does not appear to draw a distinction, as IHL does, between the two types of armed conflict. It may, however, reflect policy (rather than a legal analysis) on the part of US armed forces, referred to in Fleck (ed) (n 45) 629. Compare G Solis (n 3) 153. The wording in the letter by the Secretary of State for the USA annexed to Resolution 1790 (2007) refers to the law of armed conflict but without any reference to the Geneva Conventions. See also the Joint Declaration of the United States-Afghanistan Strategic Partnership, 23 May 2005, <http://georgewbush-whitehouse.archives.gov/news/releases/2005/05/20050523-2.html> (accessed 12 June 2012) ‘US and Coalition forces are to continue to have the freedom of action required to conduct appropriate military operations based on consultation and pre-agreed procedures.’ It is assumed that this ‘freedom of action’ encompasses the limitations of IHL applicable in a non-international armed conflict but quaere whether it is, in reality, an assumption of exclusive jurisdiction for its armed forces in Iraq. For the background to a purely non-international armed conflict in Sri Lanka see ‘War and Peace in Sri Lanka’, House of Commons Research Paper 09/51, 5 June 2009.

49 Compare Geneva Convention III, 1945, art 5; Protocol I, 1977, art 45 API, which supply a mechanism to determine the status of a captured fighter during the course of an international armed conflict. A State may, however, enter a special agreement with an organized armed group to apply Geneva Convention III, common art 3(2). In the alternative a detaining State may undertake to treat detainees as if they were prisoners of war, Amnesty International Canada v Chief of the Defence Staff for the Canadian Forces (n 6), para 180.

50 NATO Ministerial Meeting of North Atlantic Council held at NATO Headquarters, Brussels, 8 November 2005. This is referred to by Ministers in the UK Parliament as ‘NATO Guidelines’, see Hansard, House of Commons vol 499, col 5WS (9 November 2009).

51 See (n 1), Richards LJ, para 17.

52 See art 5(1)(c) and (3) of the European Convention on Human Rights 1950; art 9, International Covenant on Civil and Political Rights 1966.

53 J-M Henckaerts and L Doswald-Beck (n 17), Rule 99 and 347, which assumes that national law is in place to prevent arbitrary deprivation of liberty since it refers to a person arrested on a criminal charge. Thus, the procedural safeguards referred to in Rule 99 include the obligation to inform the person of the grounds for arrest and to bring him promptly before a judge. Strictly, a deprivation of liberty should be lawful under national law and under the State's international human rights obligations, A v Australia, (1997) CCPR/C/59/D/560/1993, para 9.5.

54 This is certainly the case for those States which require international law to be implemented into national law to have any effect on that law. In the UK the United Nations Act 1946 is concerned only with UN Security Council resolutions passed under art 41 and it requires the relevant parts of such resolutions to be implemented into English law by an Order in Council.

55 Y Sandoz et al, (n 33) para 4573. The State's international human rights obligations will also be of significance.

56 See Mactavish J, Amnesty International Canada v Chief of the Defence Staff for the Canadian Forces (n 6), para 182 (referring to the law of Canada). Indeed, ‘Task Force Afghanistan's Theatre Standing Order 321A recognizes international law as the appropriate standard governing the treatment of detainees,’ ibid, para 180.

57 Although specific criminal offences which can be committed during a non-international armed conflict are established as part of English law by the International Criminal Court Act 2001. Other States may take the view that customary international law is a direct part of their national law even where it creates new criminal offences.

58 The Queen (Application of Maya Evans) v Secretary of State for Defence (n 1), Richards LJ, para 20. Selected passages from these standard operating instructions are quoted at para 21.

59 The Armed Forces Act 2006 permits detention of a person subject to service law without charge for up to 96 hours but only if authorized by a judge advocate, s 101(4). In addition, the crime under English law, of false imprisonment can apply whatever the length of the period of detention if there is no lawful justification for the detention.

60 See, for example, R v Clegg [1995] 1 AC 491, Lord Lloyd. This must also be the position if British soldiers rely directly upon the NATO or ISAF Rules of Engagement. Compare, however, the Consolidated Guidance to Intelligence Officers and Service Personnel on the Detention and Interviewing of Detainees Overseas, and on the Passing and Receipt of Intelligence Relating to Detainees (Cabinet Office, 10 July 2010), ‘individuals may be detained and questioned by UK forces overseas in accordance with the rules of engagement for the specific operation’, para 29, referred to in the judgment of Sir Anthony May, Equality, Human Rights Commission v The Prime Minister and others [2011] EWHC 2401, para 26. If soldiers rely on standing orders the same principle as stated in R v Clegg (above) will apply. Compare Mactavish J in Amnesty International Canada v Chief of the Defence Staff of the Canadian Forces (n 6), para 55 (who does not challenge the source of Theatre Standing Order 321A, issued by the Canadian Forces in relation to Afghanistan).

61 See Attorney General v Nissan [1970] AC 179, Lord Reid at 213.

62 See Al-Jedda v Secretary of State for Defence [2010] EWCA Civ 758, Elias LJ, para 213.

63 Hansard, House of Commons vol 499, col 5WS (9 November 2009). During the ‘troubles’ in Northern Ireland the Secretary of State was given power to extend the period of detention by statute, the Prevention of Terrorism (Temporary Provisions) Act 1984, s 12(4).

64 The authorization by the Government of Cambodia to the French Navy to arrest the crew of a Cambodian registered merchant ship was not sufficient to provide a ‘legal basis of the requisite quality to satisfy the general principle of legal certainty for the deprivation of liberty’ of the crew, Medvedyev v France, (2010) 51 EHRR 39, para 102.

65 The Queen (Application of Maya Evans) v Secretary of State for Defence (n 1), Richards LJ, para 20.

66 Ibid para 19, based upon ISAF standard operating procedures.

67 See Arbitrary Detention in Afghanistan, a Call for Action, UNAMA/OHCHR, January 2009, vol 1, ‘Arbitrary detention violates the constitution of Afghanistan and international human rights standards to which Afghanistan has committed.’

68 See Human Rights Committee, General Comment 8, para 2.

69 In Al-Saadoon and Mufdhi v United Kingdom, (n 4) there was no doubt, on the part of either the British or the Iraqi authorities, that the two applicants, Iraqi nationals, were subject to the jurisdiction of the Iraqi courts for the alleged killing of two British soldiers, who were at the time prisoners of war. At the time their alleged crimes were committed they would not have been subject to the jurisdiction of the courts in England under the International Criminal Court Act 2001, s. 51(2)(b) or under any other provision of the national law of the United Kingdom. As civilians they would not be entitled to prisoner of war status. The applicants in that case had been transferred to Iraq in 2008, prior to the amendment made to the 2001 Act by the Coroners and Justice Act 2009, s 70. It is usual in these circumstances for a status of forces agreement between the sending and receiving States to ensure that members of the armed forces are subject exclusively to the law of the sending State. For further details see below (ns 74, 75).

70 R (Application of Al-Saadoon) v Secretary of State for Defence (n 4), Laws LJ, para 33 (for the period prior to 31 December 2008 the UK armed forces were acting as agent for the Iraqi court). There was, however, a purported power of arrest given by CPA Memorandum no 3 (revised), as to which see Al-Saadoon and Mufdhi v United Kingdom (n 7) para 20. In Resolution 1790 (2007) the Government of Iraq declared that it would be responsible for ‘arrest, detention and imprisonment tasks’. It recognized that these functions could be carried out by the MNF but with ‘maximum levels of co-ordination … with the Government of Iraq’, letter annexed to the Resolution by the Prime Minister of Iraq.

71 The Memorandum of Understanding (MoU) of 8 November 2004 between the UK and the relevant government ministries in Iraq drew a distinction between internment, which derived its authority from UNSCR 1546 (2004) and arrest and detention for suspected criminal acts. The MoU dealt with the latter case. See Al-Saadoon and Mufdhi v United Kingdom (n 7) para 25.

72 The CPA Order no 17 (Revised), 27 June 2004, para 2(2). See generally, R Batstone, ‘Respect for the Law of the Receiving State’ in D Fleck (ed), The Handbook of the Law of Visiting Forces (Oxford University Press, 2001) 69, who concludes that a failure to respect the law of the receiving State could amount to a breach of the treaty itself.

73 See, for example, Amnesty International Canada v Chief of the Defence Staff of the Canadian Forces (n 6).

74 For Iraq see the CPA Order no 17 (Revised), 27 June 2004, paras 2(1), 2(3). For Afghanistan see the Military Technical Agreement between ISAF and the Interim Administration of Afghanistan, 4 January 2002, Annex A, para 3. This Agreement between the ‘ISAF Commander and the Afghan Transitional Authority provides additional guidance for ISAF operations’, <http://www.aco.nato.int/page20844847.aspx> accessed 11 June 2012. The Convention on Privileges and Immunities of the United Nations 1946, art VI is to apply mutatis mutandis to ISAF forces as experts on mission, ibid, para 1. As to their accountability as such for the commission of a crime in the territory of the receiving State see Criminal Accountability of United Nations Officials and Experts on Mission, A/62/329, 11 September 2007, para 63.

75 Both status of forces agreements permit a waiver of jurisdiction in favour of the Receiving State if approved by the Sending State in any particular case, see paras 5 (Iraq) and 4 (Afghanistan, which relates to transfer to an international tribunal or another State).

76 See (n 1) para 325.

77 See M Sassoli, ‘The International Legal Framework for Stability Operations. When May International Forces Attack or Detain Someone in Afghanistan’ (2009) 39 IYBHR 177, 210 who draws attention to the importance of ensuring that the law remains realistic, otherwise potential detainees could become ‘disguised battlefield casualties’.

78 It is in the UK, Human Rights Act 1998, s 6.

79 This is the effect of Al-Jedda v United Kingdom, App no 27021/08, Judgment, Grand Chamber, 7 July 2011, para 99. It is likely that the European Court of Human Rights will have to accept that its interpretation of art 1 of the Convention in Al-Skeini v United Kingdom, App no 55721/07, Judgment of the Grand Chamber, 7 July 2011 will lead to the conclusion that art 15 of the Convention can apply to a non-international armed conflict occurring outside the territory of the State party. Following the Al-Jedda case it is considered unlikely that the UN Security Council would frame a resolution in such a way as to produce an express conflict with a human rights treaty and thus cause the United Nations Charter, art 103 to be invoked.

80 The relevant law in the USA is the Authorization to use Military Force passed by the US Congress on 18 September 2001. See its relevance in Rahmatullah v Secretary of State for Defence [2011] EWHC 2008 (Admin).