Legality of Detention in Non-International Armed Conflicts: A Note on Serdar Mohammad v. Ministry of Defence

NALSAR International Law Blog

Rahul Mohanty

III Year

NALSAR University of Law

The Legal Basis of Detention in Non-international armed conflicts (NIACs) has been subject of renewed debate after the recent High Court decision in Serdar Mohammed v. Ministry of Defence.[1] The High Court held that UK did not have legal authority for detention under international humanitarian law in the course of the non-international armed conflict in Afghanistan, and that any detention of such individuals longer than 96 hours violates Article 5 ECHR and applicable Afghan law.

Justice Leggatt held IHL did not by itself give authority to UK to detain because: Firstly, neither Common Article 3 nor Additional Protocol 2 expressly authorises to detain individuals, they merely set out certain minimum standards of treatment of detainees during NIAC. Authorisation for detention cannot be inferred from them.

He rebutted argument that these articles impliedly permitted detention because they contemplated the fact of detention…

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