By all means necessary: A look at the reliance on United Nations Security Council resolutions as a basis for internment in non-international armed conflicts
| Jurisdiction | South Africa |
| Citation | (2019) African Yearbook on International Humanitarian Law 25 |
| Pages | 25-48 |
| Author | Kiboro, H.M. |
| Published date | 30 October 2020 |
| Date | 30 October 2020 |
25
By all means necessary: A look at the
reliance on United Nations Security
Council resolutions as a basis for
internment in non-international
armed conicts
Hillary Muchiri Kiboro*
Abstract
This artic le analyses the practice of usi ng United Nations Security
Council (U NSC) resolutions as the legal basis of intern ment in non-
international armed con icts (NI ACs). The article commences with a
brief denition of NI ACs juxtaposed with inter national armed conict s
(IACs) and demonstrates the better-d eveloped internment regime in IACs.
In particu lar, the analysis proceeds on t he basis of some fundamental
legal questions apperta ining to the deprivation of liberty such a s who can
be deprived of libert y; when and for how long; under what conditions;
and pursuant to what process. T he article notes that treaty i nternational
humanitaria n law (IHL) applicable to IACs answers these quest ions well;
however, this is not the case concerni ng treaty IHL applicable to NIACs.
The article further explores another critical question, namely whether
customary IH L provides the requisite legal basis for intern ing individuals
in connection with N IACs. It should, however, be noted that international
consensus on this iss ue is lacking. The latter relates not to the rig ht to
intern as such, but rather to the scope of t his right and the conditions of
its exercise. Consequently, practice to nd a lega l basis for internment in
other legal regimes such a s domestic law and UNSC resolutions eme rged.
This practice has fou nd judicial afrmation in a number of de cisions from
domestic courts and reg ional human rights court s. For instance, in the
case of Abd Ali Hameed Al-Waheed v Ministry of Defence, the Supreme C ourt
of the United Kingdom was convinced t hat UNSC resolutions provided
sufcient authority for the m ilitary forces to intern pe rsons when it was
necessary for the accomplish ment of the forces’ mission. Here, the two
relevant UNSC resolutions g ranted the power to multinational forces in
* LLM in Public Inter national Law (Universit y of Nairobi), LLB (University of
Nairobi) Postgraduate Diploma (Kenya S chool of Law). Legal Advisor, ICRC
Nairobi Regional De legation. Email: kiborohm @gmail.com. Discla imer: This
article is prese nted in my personal capacity and does not ne cessarily reect the
views of the ICRC on the subjec t matter.
(2019) African Yearbook on International Humanitarian Law 25
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26 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW
Iraq to use ‘all necessar y measures’ to accomplish their mission. U NSC
Resolution 1546 on Iraq had an annexed a letter by t he United States
Secretar y of State, authorising internment.
Keywords: UNSC resolutions, detention, internment, depr ivation
of liberty, non-international armed conicts, multinational forces
operations, international humanitarian law
1 INTRODUCTION
Deprivation of liberty is often a common and expected occurrence
during armed conict; for instance, in World War I, about seven
million people were taken prisoner.1 Military manuals across the
world, such as the United States Law of War Manual provide that
detention operations are an indispensable part of m ilitary operations.2
In recognition of this fundamental fact, international humanitarian
law (IHL) does not prohibit deprivation of liberty during ar med
conict.3 IHL has, on the contrary, provided for an extensive regime
of safeguards and procedures to preserve the dignity and integrity
of detainees/internees. Unfortunately, this elaborate regime of rules
mainly covers situations of international armed conicts (IACs) and is
not as well developed in non-international armed conicts (NIACs).4
Before delving into the substance of this article it is important to
clearly delimit its scope to the extent that the substantive disc ussion
hinges on the normative framework of IHL as it applies to NIACs. A
full discussion of the classication of armed conict is beyond the
ambit of this article but nonetheless, working denitions are provided
as a reference framework.
1 The International C ommittee of the Red Cross ‘The Inter national Prisoners-of-
War Agency: The ICRC in World War One’ (2015), available at
icrc.org/en/publication/0937-international- prisoners-war-agency-icrc-world-
war-one> (accessed on 9 July 2018).
2 Ofce of the Genera l Counsel, Dep artment of Defe nse ‘United States Depa rtment
of Defense Law of War Manual’ 510, available at ps://dod.defense.gov/
Portals/1/Documents/pubs/DoD%20Law%20of%20War%20Manual%20-%20
June%202015%20Updated%20Dec%202016.pdf?ver=2016-12-13-172036-190>
(accessed on 9 July 2018).
3 International Com mittee of the Red Cross ‘Detention i n Non-International
Armed Con ict – Second Thematic Consu ltation of Government Exper ts,
20–22 Oc tober 2014’ (2015), available at w.icrc.org/en/document/
detention-non-international- armed-conic t-second-thematic-consultation-
government-exper ts> (accessed on 9 July 2018).
4 Lawrence H ill-Cawthor ne Detention in Non-International Armed Conicts (2016) .
See also Jelena Pejic ‘Pro cedural Princ iples and Safeguards for I nternment/
Administrat ive Detention in Armed Conict a nd Other Situations of Violence’
(2005) 87 The Intern ational Review of the Red Cross 375.
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BY ALL MEANS NECESSARY 27
IACs are dened as armed conicts between two or more states.
Article 2 common to the four Geneva Conventions of 19495 (Geneva
Conventions) prov ides that:
In addition to the provisions which sha ll be implemented in peacetime,
the present Convention shall apply to all ca ses of declared war or of
any other armed con ict which may arise between two or more of the
High Contracti ng Parties, even if the state of war is not recogniz ed by
one of them.
It further provides that the Conventions also apply to all cases of
partial or total occ upation of the territory of a High Contracti ng Party,
even if the said occupation meets with no ar med resistance. In addition,
Article 1(4) of Additional Protocol 1 to the Geneva Conventions,
classies as IACs armed conicts in which peoples are ghting against
colonial domination and alien occupation and against racist regimes
in the exercise of their right of self-determination, as enshrined in
the Charter of the United Nations (Charter)6 and the Declaration on
Principles of International Law concerning Fr iendly Relations and Co-
operation among States in accordance with the Charter of the United
Nations.7
In certain situations, a NIAC can mutate to an IAC through the
intervention of a third state in support of a non-state actor within
the NIAC, where the actions of the non-state actor are attributable to
the intervening state.8 In order to attribute the acts of a military or
paramilitar y group to a state, it must be proved that the state wields
overall control over the group, not only by equipping and nancing
the group but also by coordinating or helping in the general planning
of its mi litar y activ ity.9
NIACs are dened under Common Article 3 to the Geneva
Conventions and Additional Protocol II. These are conicts not of
an international character taking place in the territory of a state.10
5 The Geneva Conventions of t he 12 August 1949, available at
org/eng/assets/les/publications/ic rc-002-0173.pdf> (accessed on 15 July 2020).
6 Charter of the United Nations , 24 October 1945, 1 UNTS X VI, available at
7 Declaration on Pr inciples of International Law conce rning Friendly Relat ions
and Co-oper ation among States in accordanc e with the Charter of the Un ited
Nations, available at < https://www.un.org/r uleoaw/les/3dda1f104.pdf >
(accessed on 17 July 2020).
8 ICTY (Appeals C hamber Judgment) Prosecutor v Dusko Tadic (15 July 1999) Case
No IT-94-1-A paras 88–132.
9 Ibid at para 131.
10 Geneva Convention (I) for t he Amelioration of the Condition of the Wounded
and Sick in Armed Forc es in the Field (adopted 12 August 1949, entered into
force 21 October 1950) 75 UNTS 31 (First G eneva Convention).
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28 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW
Additional Protocol II stipulates that it applies to all armed conicts
which are not covered by Article 1 of Protocol I and which take place
in the territory of a High Contract ing Party between its armed forces
and dissident armed forces or other organised ar med groups which,
under responsible command, exercise such control over a part of
its territory as to enable them to carry out susta ined and concerted
military operations and to implement the Protocol.11 Marco Sassòli
opines that every armed conict not qualifying as international, is
perforce non‐international.12
Detention/internment regime is much less developed in NIACs.
Although customary IHL has progressively developed the law on
detention applicable to NIACs (transplanting a signicant number of
the rules applicable to IACs to NIACs)13, the exact delineation of the
rules remains unclear and a matter of debate in scholarly literature.14
The United Kingdom (UK) Supreme Court i n the case of Abdi Ali
Hameed Al-Waheed v Ministry of Defence15 noted that the d ifferences
among states on the existence of legal authority for detention in
NIACs, is not per se about the existence of the right to detain in
principle, but rather on the limit of such right. The Court observed
‘The lack of international consensus really reects differences among
states about the appropriate limits of the right of detention, the conditions
of its exercise and the extent to which special provision should be made for
non-state actors.’ (emphasis added).
Some commentators, such as Barnsby insist that that customar y
IHL provides a basis for carry ing detention in NIACs.16 Other
commentators argue that customary IHL does not provide any legal
11 ‘Additional Protocol (II) to t he Geneva Conventions of the 8 June 1977’, available
at l-databas es.icrc.org/appl ic/ihl/ih l.nsf/Treaty.xs p?documentId=
AA0C5BCBAB5C 4A85C12563CD002D6D09&action=op enDocument>
(accessed on 2 Februar y 2018).
12 Marco Sassòli ‘Tran snational Armed Groups and I nternational Humanitar ian
Law’ Program on Humanitarian Policy and Conict Research Harvard Univer sity
Occasional Paper 6 (200 6), available at arch.org/sites/
default/les/publications/OccasionalPaper6.pdf>.
13 See the discu ssion in ICTY (Decision on th e Defence Motion for Interlocutory App eal
on Jurisdiction) Prosecutor v Tadic (2 October 1995) pa ra 126, available at
icty.org/x/cases/tadic/acdec/en/51002.htm> (accessed on 15 July 20 20).
14 John B Bellinge r and Vijay M Padmanabhan ‘Detention Op erations in
Contemporary Con icts; Four Challenges for t he Geneva Conventions and
Other Exist ing Law’ (2011) 105:2 American Journal of Internation al Law 201;
See also, John F Murphy ‘ Will-o’-the-Wisp? The Sear ch for Law in Non-
International Ar med Conict’ (2012) 88 Internationa l Law Studies 15.
15 United Kingdom Supreme Cou rt Abd Ali Hameed Al-Waheed (Appellant) v
Ministry of Defence ( Respondent) [2017] UKSC 2.
16 RE Barn sby ‘Yes We Can: The Authority to Det ain as Customary International
Law’ (2009) 202 Militar y Law Review 53.
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BY ALL MEANS NECESSARY 29
basis for detention in NIACS. Such commentators argue that state
practice does not demonstrate any custom under IHL that authorises
detention. It is argued that states routinely rely on other regimes of
law (such as domestic law, United Nations Security Council (UNSC)
Resolutions and international human rights law) for a legal basis in
carrying out detention in NIACs.17 In particular, the rules on who can
be deprived of liberty, when and for how long, under what conditions
and pursuant to what process are not well developed.18
In the 32nd International Conference of the Red Cross and Red Crescent
Movement, the International Committee of the Red Cross (ICRC) noted
that there was a dearth of tr eaty IHL rules regulati ng detention in NIACs
as well as lack of consensus on the scope and meaning of customary
law rules applicable to detention in NIACs. In this regard, the ICRC
identied four aspects that particularly warranted attention.19 The four
areas that were identied by the ICRC are: ‘conditions of detention;
protection for especially vulnerable groups of detainees; grounds
and procedures for internment and transfers of deta inees from one
authority to another.’ Whether IHL authorises detention in NIACs
has been the subject of debate amongst scholars and states, with some
holding the view that it does, while others refute such arg uments.20
Those who maintain that IHL contains a legal basis for internment in
NIACs, base their assertion in that implied authorisation of detention
exists. They argue this since IHL provides for a degree of protection
of persons during detention within a NIAC context.21 What is clear,
however, is that unlike in IACs, where the four Geneva Conventions
explicitly provide for the authority and grounds for holding prisoners
of war (POWs) as well as civilians, there are no express rules providing
for internment in NIACs. Due to a lack of the express legal basis for
internment in IHL, relia nce has often been placed on different regimes
of law such as domestic criminal law and the U NSC resolutions.
Some scholars such as Professor Ryan Good man concur with the
position that IHL has no basis for internment but that domestic law can
provide the requisite basis.22 He argues, in as much as the basis does
not exist in IHL, it also does not prohibit the detention of civilians
17 Hill-C awthorne op cit note 4 at 70.
18 International Com mittee of the Red Cross, ‘Stre ngthening IHL P rotecting
Persons Deprived of T heir Liberty i n Relation to Armed Conic t’ (2015)
www.icrc.org /en/document/detention -non-internationa l-armed- conict-icrc s-
work-strengtheni ng-legal-protection-0> (accessed on 29 June 2018).
19 Ibid.
20 Sandesh Siva Kumaran T he Law of Non-International Arm ed Conict (2012).
21 Ibid.
22 Ryan Goodma n ‘The Detention of Civil ians in Armed Con ict’ (2009) 103:1
American Journal of Inte rnational Law 48.
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30 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW
posing a security t hreat.23 Ryan Goodman’s views are also shared by
Lawren ce Hill-Cawt horne and Dapo Akande who opine that the fact the
law offers no basis for internment in NIACs constitutes a prohibition
on detention. They argue that IHL does not restrict states with regard
to detention in NIACs anymore than it does restrict their ability to
detain in IACs. States are not prohibited from detaini ng in NIACs, and,
in that sense, detention is not necessarily unlawf ul. Nevertheless, IHL
simply does not itself provide a legal basis to do so and the legal basis
must be found e lsewhere.24
Lawrence Hill-Cawthorne concurs with this argument and is of
the opinion that it is supported by state practice.25 Giving examples of
legislation from Nepal and Sri Lanka, he concludes that
states have generally relied on domestic law as prov iding the legal
basis for their detention pract ices in NIACs even in the context of
extraterritoria l NIACs, states have looked elsewhere for authorisation.
Indeed, state practice does se em to suggest that when states carry out
detention operations in NI ACs, they normally nd the basis in e ither
domestic law or from United Nations Secur ity Council authorizat ion.26
However, relying on domestic law has serious challenges. This is
especially the case when the con ict transverses beyond the territory
of one state. What would be the basis of using the domestic law of one
state to carry out detention in another state? Secondly, often executive
orders and pronouncements are used as the basis of detention. A
full discussion on the shortcoming of relying on domestic law for
internment in NIACs is outside the scope of this ar ticle, whose focus is
on the reliance on the UNSC resolutions to car ry out such internment.
Some scholars take the opposite view; that IHL has a basis for
detention in NIACs. For instance, Kubo Ma ák27 argues that the lack
of express treaty provisions authorising detention could mean one
of three things; that detention is prohibited, the law is normatively
23 Ibid.
24 Lawrence Hill C awthorne and Dapo Aka nde ‘Does IHL Provide a L egal Basis
for Detention in Non-Internat ional Armed Con icts?’ 7 May 2014 EJI LTa lk,
available at
tion-in-non-internationa l-armed-conicts/> (accessed on 2 8 June 2018).
25 Ibid.
26 Gabor Rona ‘Is there a way out of the Non-I nternational Armed Con ict
Detention Dilemma?’ (2015) 91 Internat ional Law Studies, US Naval War College 32.
27 Kubo Ma ák ‘ No Legal Basis under IH L for Detention in Non-Internationa l
Armed Con icts? A Comment on Serdar Mohammed v Mini stry of Defence’ 5
May 2014 EJI LTa lk, avai lable at
ihl-for-detention-in-non-i nternational-armed- conicts-a- comment-on-serdar-
mohammed-v-minist ry-of-defence/> (accessed on 28 June 2018).
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BY ALL MEANS NECESSARY 31
neutral or that detention is permitted.28 He fu rther argues that the rst
proposition should be rejected outright. By analogy, he extrapolates
that
it has never been suggested that act s conducted during armed conict
that lack express authoris ation in the law are prohibited. For instance,
there is no express authoris ation to kill ghters, yet this ha s never
been regarded as un lawful.29
On the second proposition (that IHL is normatively neutral on the
issue), Kubo observes that this would lead to undesirable results as the
legality of any detention would need to be analysed from the point
of view of international human rights law and/or domestic law. This
could render, ipso facto, any detention illegal where the combination
of domestic law and international human rights was particularly
prohibitive.30 He, therefore, concludes that the most viable proposition
is the third one; that IHL contains an implied legal basis for detention
in NIACs.
One of the main reasons states have been reluctant to establish the
authority to detain under NIACs in international law, is that it would
hinder the use of penal legislation against armed groups.31 Besides,
states do not wish to clothe armed groups with combatant immunity.32
Combatant immunity or privilege means that the soldiers taking part
in the hostilities cannot be prosecuted for it.
This lack of specic rules in IHL has led states to rely on rules
from other regimes to ll the gaps. One of the trends t hat have
emerged recently, is to rely on UNSC resolutions as the legal basis for
internment in NIACs. 33 The practice has found judicial afrmation
in a number of decisions from domestic courts and regional human
rights courts. For instance, in the case of Abdi Ali Hameed Al-Waheed
v Ministry of Defence,34 the Supreme Court of the United Kingdom
(UK Supreme Court) was convinced that UNSC resolutions provided
sufcient authority for the militar y forces to intern persons when
it was necessary for the accomplishment of the forces’ mission. The
decision of the Court was based on t wo UNSC resolutions, granting the
28 Ibid.
29 Ibid.
30 Ibid.
31 Els Debuf Captu red in War: Lawful inter nment in armed conict (2013).
32 Rona op cit note 26.
33 ECHR (Grand Chamber) Al-Jedd a v United Kingdom (7 July 2011) Application
No 27021/08. In this case the United K ingdom argued that it was not b ound
by obligations under the Eu ropean Convention on Human Rights as the ri ght
(and obligation) to detain came fr om UNSC resolutions that were bi nding on
it which are based on the United Nat ions Charter.
34 Sassòli op cit note 12.
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32 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW
power to multinational forces in Iraq to use ‘all necessary measures’ to
accomplish their m ission.35 UNSC Resolution 1546 (2004) on Iraq had
an annexed letter by the United States Secretar y of State, authorising
internment.
The objective of this article is to examine the legal questions that
arise from this prac tice. The article focuses on reliance placed on UNSC
resolutions in NIACs involving multinational forces because this is
where it has been most prevalent and also poses the greatest legal
difculties. To begin with, its design departs from a principle that is at
the core of IHL: belligerent equality. IHL applicable to both IACs and
NIACs spells out rights and obligations to all parties to the conict,
without any effect on their legal status. This is a vital innovation of
IHL, and which legally places the par ties to the conict on the same
plane as far as the application of the rules of IHL is concerned. This is
quite different from the regime eman ating from the UNSC r esolutions.
The resolutions are primarily addressed to state actors. This raises
the question as to whether there exist any concomitant rights and
obligations for non-state actors (NSAs). The argument in this art icle is
that to the extent the resolutions do not provide rights and obligations
for NSAs, they are contrary to the spirit of IHL and would negatively
affect its legitimacy and efcacy.
Secondly, the language and phraseology employed in the
resolutions give rise to considerable uncertainty that would not be
good for military operations. A look at most of the resolutions that
have been relied upon as a basis for internment shows that they do
not, in fact, expressly authorise detention/internment. The common
phrase used in the resolutions is that the parties are authorised ‘to take
all necessary measures’ to accomplish their stated objectives. This is too
wide and open a formulation when it comes to a matter as grave as
deprivation of liberty. In essence, such a formulation does not answer
the very important question of who can be interned, for how long and
pursuant to what procedure.
In comparison, under IACs, internment is either based on statu s (for
combatants) or based on individual threat assessment (for civilians).
The standard for assessment is also clearly stipulated in A rticles 42
and 78 of the fourth Geneva Convention; when the security of the
part to the conict makes it absolutely necessary and for imperative
reasons of security, respectively. Article 79 of the fourth Geneva
Convention expressly prohibits internment that does not comply with
35 UNSC Resolution 1723 ‘The situ ation concerning Iraq’ of the 2 8 November
2006, avail able at (accessed on 5 July
2020) and UNS C Resolution 1546 ‘The situation betwe en Iraq and Kuwait’ of
the 8 June 2004, ava ilable at (accessed
on 5 July 2020).
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BY ALL MEANS NECESSARY 33
the provisions of the Convention. Although a number of states have
adopted the standards spelt out in the fourth Geneva Convention,
there is no legal obligation to do so from the relevant UNSC resolutions.
Lastly, and connected to the second argument above, is the fact
that the resolutions do not elaborate on the procedures to be followed
after a person has been interned. This is in sharp contrast to the IHL
regime regulating IACs, where the procedures are detailed and specic.
For instance, the question of when internment must come to an end
is clearly spelt out; for combatants, the internment lasts until active
hostilities cease while for civilians it is tied to their continued threat. A
periodic review as to whether the internees continue to pose a th reat is
a legal requirement under Article 78 of the fourth Geneva Convention.
Providing a basis for detention is but the rst step in the internment
regime. UNSC resolutions have often required states or international
organisations that have been authorised to carr y out operations by
the resolutions, to do so in conformity with international law and
particularly, international human rights and humanitarian law.
Unfortunately, the IHL governing detention/internment operations
is not well developed and therefore such a direction only leads to
un ce rt ai nt y.
2 THE LACK OF SPECIFIC RULES IN INTERNATIONAL
HUMANITARIAN LAW
The necessity to resort to UNSC resolutions as the legal basis for
detention emanates from the fact that the IHL rules governing
detention in NIACs are not very well developed. The regime compares
drearily with the regime established to regulate detention in IACs.
Contrary to the well-developed regime for protections of POWs in
IACs, there are much fewer rules that govern deprivation of liberty
during NIACs.36 In addition, the few existing rules are not sufciently
detailed, both in substance and procedure. For instance, Article 3,
common to the four Geneva Conventions, is an omnibus article that
eetingly addresses the question. In par t, it provides that persons who
are deprived of their libert y should be accorded humane treatment,
without any further elaboration. It does not stipulate the grounds
upon which the detention could be effected or the procedures to be
followed.37 The questions of who can be detained, for how long, on what
grounds and in what conditions are largely left unanswered.
36 Cra ig A Brannagan ‘The C openhagen Process on the Ha ndling of Detaine es in
International Military Operations: A Canadian Pe rspective on the Challenge s and
Goals of Humane Warfa re’ (2010) 15:3 Journal of Conict and Securit y Law 501.
37 ‘Persons tak ing no active part in t he hostilities, includi ng members of armed
forces who have laid down their a rms and those placed ‘hors de comb at’ by
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34 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW
Articles 4 and 5 of Protocol II additional to the Geneva Conven-
tions,38 also address the issue but fall far short of providing a
comprehensive regime akin to the one for IACs. Article 4 is a general
provision on fundamental guarantees for different categories of
people. It provides, inter alia, that all persons are, whether or not they
have been deprived of their libert y, to be treated humanely. Article 5,
though specically addressi ng deprivation of liberty, gives rise to more
uncertainty than certainty. The article does not address the key issues
associated with the process of deprivation of liberty. For instance, it
does not address the ground upon which a person can be det ained and
how long they should be detained. Article 5(4) provides that ‘if it is
decided to release persons deprived of their l iberty, necessary measures
to ensure their safet y shall be taken by those so deciding’. This leaves it
to the absolute discretion of the detaining power when and if persons
deprived of their liberty may be released from detention.
One of the key legal issues pertaining to detention in NIACs is the
basis of legal authority to detain. Whether IHL treaty law authorises
detention has been the subject of debate amongst scholars and states
with some holding the view that it does, while others refute such
argu ments. 39 Those who maintain that IHL authorises detention in
NIACs, base their arguments on the provisions of Common Article 3
to the Geneva Conventions and the Protocol II. The fact that Protocol
II dictates that there shall be protection of persons detained during
and after a NIAC, as well as its express provisions prohibiting adverse
distinction, is presented as an arg ument for implied authorisation
of detention given by IHL.40 Unlike in IACs, where the four Geneva
Conventions explicitly provide for the authority and grounds for
holding POWs as well as civilians, the wording in Protocol II and
Common Article 3 is not express.41 Th is lack of clear rules and a unied
legal regime governing the deprivation of libert y in NIACs has led to
sickness, wounds, detention, or a ny other cause, shall in al l circumstance s
be treated humanely, without any adver se distinction founded on r ace,
colour, religion or faith, se x, birth or wealth, or any othe r similar criter ia …
Convention III Relative to the Treatment of P risoners of War (adopted 12
August 1949, entered into force 21 October 1950) 75 UNTS 135 (T hird Geneva
Convention).
38 Protocol Additional to the Ge neva Conventions of 12 August 1949, and Relating
to the Protection of Vict ims of Non-International A rmed Conict s (hereafter
Protocol II), available at ps://www.ohchr.org/EN/Professional Interest/
Pages/ProtocolII.a spx> (accessed on 6 July 2020).
39 Kumaran op cit note 20.
40 Ibid.
41 Ryan Goodma n ‘Authorization versus Regulat ion of Detention in Non-Inter-
national Armed C onicts’ (2015) 91 International Law Studies Ser US Naval War
Col 155.
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BY ALL MEANS NECESSARY 35
a proliferation of standards and legal norms, including the reliance of
UNSC resolutions as a legal basis for detention.42 The following section
examines the legal and practical issues arising from relying on UNSC
resolutions as the legal basis for detention in NIACs.
3 CAN UNSC RESOLUTIONS PROVIDE LEGITIMATE
LEGAL AUTHORITY FOR DETENTION IN NIACS?
Before analysing the legal issues arising from the UNSC as a source
of legal authority for detention, it is essential to have a preliminary
examination of the limit of the U NSC as a legislative body. Although
the general question of limits on the UNSC resolutions under Chapter
VII has existed for a long time, there is no doubt that it has exercised
its powers to authorise detention through resolutions taken under
Chapter VII of the Charter. The legal architecture built by the Charter
is very clear; under Article 24 of the Charter, the UNSC is given the
primary mandate of maintaining international peace and security.43
The question that has lingered on for a long time, is the exact contours
of the measures that may be undertaken by the UNSC and the related
questions of whether the assumption of jurisdiction by the U NSC
under Article 39 is justiciable and in what forum.44 However, there is
general consensus that the UNSC has wide-ranging powers under the
Char ter.45
Drawing from the failures of the League of Nations the Charter
was designed to purposef ully centralise the decisions pertaini ng to the
maintenance of international peace and security, which was the raison
d’et re for the establishment of the United Nations, within the UNSC.46
42 Jenny Liabenow ‘An Elucidating Resp onse to Erroneous Outrage: W hy
Continued Law of War Detention unde r Executive Order 13,567 Is Legal’ (2011)
7 Florida A & M Universit y Law Review.
43 Judith G Gardam ‘L egal Restraints on Sec urity Council M ilitary Enforc ement
Action’ (1996) 17:2 Michigan Journal of International Law 2 85.
44 Ibid.
45 W Michael Reisman ‘T he Constitutional Cr isis in the United Nations’ [1993]
Faculty Scholarship Series, available at
fss_papers/86 6> (accessed on 10 October 2019).
46 David Schweig man The Authority of the S ecurity Council Under Chapte r VII of the
UN Charter: Legal Limit s and the Role of the Internatio nal Court of Justice (2 001)
provides an overv iew of the Council’s powers under the C harter and survey s
the Council’s recent prac tice with regard to the mai ntenance of international
peace and secur ity. Subsequently the sourc es and contents of the limits to the
Council’s authority ar e analysed. This is followed by an ana lysis of the role of
the International Co urt of Justice, which includes a n overview of the main
obstacles to, and possibilit ies of, judicial review by the C ourt of Council’s
decisions taken unde r Chapter VII. Finally, the work discuss es recent proposals
to enhance the Counc il’s legitimacy.
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36 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW
The founders regarded this as the cornerstone of maintenance of
international peace and secur ity, the ability to take collective measures .
The drafters’ desire to avoid future wa rs prompted the establishment of
a strong decision-making body. Indeed, the power struct ure created in
the Charter, and the language den ing that power, reect a paramount
desire to create a powerful peace-keeping organisation.47
The broad powers granted to the UNSC were af rmed by the
International Court of Justice (ICJ) in the advisory opinion on the
Legal Consequences for States of the Continued Presence of South Africa in
Namibia (South-West Africa) Notwithstanding Security Council Resolution
276 (19 70)48 the Court noted the broad powers given by the Charter to
the UNSC observing that:
As to the legal basis of the resolution, ar ticle 24 of the Charter vest s
in the Secur ity Council the necessa ry authority to take action suc h
as that taken in the prese nt case. The reference in parag raph 2 of
this artic le to specic powers of the Secu rity Council unde r certain
chapters of the Charter do es not exclude the existence of general
powers to discharge the re sponsibilities conferred i n paragraph 1.
Reference may be made in this r espect to the Secreta ry-General’s
Statement, presented to the Secur ity Council on 10 January 1947, to
the effect that the p owers of the Council under ar ticle 24 are not
restricted to the spe cic grants of authority contai ned in Chapters
VI, VII, VI II and XII … the Members of t he United Nations have
conferred upon the Sec urity Counci l powers commensurate with its
responsibility for the ma intenance of peace and secur ity. The only
limitations are the f undamental principles a nd purposes found in
Chapter 1 of the Charter.49
The language of a resolution should be carefully analysed before a
conclusion can be drawn on its binding effect. Given the nature of
the powers under Article 25, the question whether they have, in fact,
been exercised is to be determined in each case, having regard to the
terms of the resolution to be interpreted, the discussions leading to it,
the Charter provisions invoked and, in general, all circumstances that
might assist in determining the legal consequences of the resolution
of the UNSC.
47 Anna M Vradenburgh ‘ The Chapter VII Powers of the United Nat ions
Charter: Do T hey Trump Human Rights Law ’ (1991) 14:1 Loyola of Los Angeles
International a nd Comparative Law Review 175.
48 ICJ Legal Consequences for States of the Cont inued Presence of South Afr ica in
Namibia (South West Africa) notwith standing Security Cou ncil Resolution 276
(1970) (Advisory Opi nion of 21 June 1971) ICJ Reports (1971) 16 (hereafter Legal
Consequences for States o n Continued Presence Advisory Opi nion).
49 Ibid.
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BY ALL MEANS NECESSARY 37
Despite the wide-ranging powers, the UNSC is also required to act
within the law. The ICJ noted in the case of Reparations for Injuries
Suffered in the Services of the United Nations Case 50 that the UN was a
subject of international law possessing certain rights and duties. The
corollary, the UNSC would be subject to rules of international law.
Indeed, the International Criminal Tribunal for the former Yugoslavia
(ICTY) obser ved that the UNSC was not perceived as an entity that was
above and unbound by the law.51 Its actions were, therefore, subject to
the established rules of international law.
The use of UNSC resolutions legislatively has however been
controversial. In the case of Prosecutor v Tadic,52 the ICTY noted that
the UN was not structured like a state with the traditional legal
institutions of governance. The Court noted that:
There is, however, no legislature, in the tec hnical sense of the term,
in the United Nations system and, more genera lly, no Parliament in
the world community. That is to say, there exists no corporate organ
formally empowered to enac t laws directly bindi ng on international
legal subject s.
Nevertheless, the Court noted that the U NSC had some powers to take
binding decisions by virtue of Article 25 of the Charter.53
Some scholars argue that by adopting resolutions that created
international crimina l tribunals, the UNSC was engaging in a
legislative process but a very limited one.54 This is because the
resolutions in question addressed specic contexts and were not meant
to create rules of general application. Not long after the adoption of the
resolutions creating the tribuna ls, the UNSC began adopting legislative
resolutions that were of general application. Resolution 137355 adopted
on the 4385th session of the UNSC required all states to take certain
measures to suppress international terrorism including preventing
50 ICJ Reparations for Injuries i n the Service of the United Nations (Advis ory Opinion
of 11 April 1949) ICJ Reports 1949 (hereafter Rep arations for Injuries Advisory
Opinion).
51 ICTY Prosecut or v Tadic (Decision on the D efence Motion for Interlocutory Appeal o n
Jurisdiction (2 October 1995), Case No IT-94-1-AR72, pa ra 43.
52 Ibid.
53 Ibid.
54 Nico Krisch ‘T he Rise and Fall of Collective S ecurity: Terrorism, US Hegemony,
and the Plight of the Sec urity Council’ (S ocial Science Resea rch Network
200 4) SSRN Scholarly Paper ID 2440734, avail able at
abstract=2440734> (accesse d 14 February 2019).
55 UN Secur ity Council, Sec urity Council r esolution 1373 (2001) [on threats to
international peace a nd security c aused by terrorist ac ts] of the 28 September
2001, S/RES/1373 (2001), available at f/crime/
terrorism/res _1373_english.pdf > (accessed on 12 July 2020).
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38 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW
and suppressing the nancing of terrorist acts and criminal ising the
wilful provision or collection, by any means, directly or indirec tly,
of funds by their nationals or in their territories with the intention
that the funds should be used, or in the knowledge that they are to be
used, in order to carry out terrorist acts.56 Similarly, Resolution 1540
was a general legislative resolution requiring all states to refrain from
assisting any NSAs that attempted to acquire nuclear, biological or
chemica l weapons.57 The Resolution also called upon states to establish
effective measures to curb the proliferation of such weapons.
Delbruck asserts that the legislative authority of the UNSC arose
from the process where the classical sovereign independence gave way
to interdependence and institutionalised cooperation which began by
the recognition of international organisations as derivative subjects of
international law.58 He further argues that besides adopting binding
legislative resolutions, the UNSC also makes ‘soft’ law which may lead
to the emergence of new norms.59 He argues that this pa rtly ows from
the obligation imposed by Article 2(2) of the Charter which requires
good faith compliance of the Charter’s obligations by the member
states. He, therefore, analogises the recommendations and resolutions
by the UNSC to these obligations and opines that they may end up
creating new norms.60
Tal mon 61 asserts that the UNSC entered into the realm of law-
making in September 2001 by adopting Resolution 1373.62 He notes
further that the UNSC stated clearly that it had the objective of taking
on an enhanced role of legislating for the rest of the UN member ship.63
Giving examples of various resolutions, he opines that the hallma rk of
legislative action by the UNSC is the imposition of general obligations
on member states that are not restricted to any specic context even
though a certain context/situation might have triggered the adoption
of the resolut ion.64 He argues that ‘to that extent, the obligations
imposed in such resolutions are akin to obligations entered into by
56 Ibid.
57 UN Secu rity Council, Sec urity Counci l resolution 1540 (2004) [concerning
weapons of mass destr uction], 28 April 200 4, S/RES/1540 (2004), available at
58 Jost Delbrück ‘Transnat ional Federalism: Problems and P rospects of Allocating
Public Authority Beyond t he State’ (2004) 11:1 Indiana Journal of Global Legal
Studies 31.
59 Ibid.
60 Ibid.
61 University Lec turer in Public International L aw, University of Oxford.
62 Stefan Talmon ‘The Sec urity Council a s World Legislature’ (2005) 99:1 Ame rican
Journal of Internat ional Law 175.
63 Ibid.
64 Ibid.
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states in international agreements.’ These types of resolutions are
different from the classic individualised resolutions.65
The legislative actions by the UNSC have however faced serious
criticism. To begin with, critics a rgue that the UNSC is unrepresentative
and undemocratic and therefore unsuitable to perform legislative
actions.66 Many critics point to the veto power granted by Article 27 of
the Charter as well as its composition to demonstrate that the UNSC
is not representative of the community of states. It is therefore argued
that any law made by the UNSC may face grave issues of legitimacy.67
This is partic ularly so if viewed from the perspective that international
law-making is largely a consensual process, although facing increased
erosion from a globalised planet.68
In the following sections, var ious UNSC resolutions that have been
used as a basis of detention in NIACs will be analysed to demonstrate
the three challenges hig hlighted in the introductory part of the article.
3.1 UNSC Resolution 1244 (1999)
UNSC Resolution 124469 was adopted on 10 June 1999 during the
4011th sitting of the UNSC on the wake of the conict in Kosovo
(Resolution 1244). Resolution 1244 was adopted under Chapter VII of
the Charter among other things establishing an international security
presence under the auspices of the UN in Kosovo. The responsibilities
of the International Security Presence were outlined in paragraph 9 of
Resolution 1244 and included deterring renewed hostilities, enforcing
the ceasere, and ensuring the withdrawal and preventing the return
into Kosovo of Federal Republic of Yugoslavian military, police and
paramilitar y forces. The mission was also tasked with the establishment
of a secure environment in which ref ugees and displaced persons could
return home in safety. The Resolution 1244 further authorised the
international civil presence to operate a transitional administration
and deliver humanitarian aid ensuring public safety and order.70
Resolution 1244 was the subject of the European Court of Human
Rights case of Behrami v France and Saramati v France, Germany and
65 Ibid.
66 Kenneth Manusama The United Nations Securit y Council in the Post-Cold War
Era: Applying the Principle of L egality (20 06).
67 Ibid.
68 Nico Krisch ‘T he Decay of Consent: Internationa l Law in an Age of Global
Public Goods’ (2014) 108:1 The American Jour nal of International Law 1.
69 United Nations Secur ity Council 1244 (1999) S/RES/1244, 10 June 1999.
70 Ibid.
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40 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW
Norway.71 In this case, the Court ruled that the Resolution 1244 gave
authority to the NATO Kosovo Force (KFOR) to carry out detention
operations and accordingly could not review the actions of the
respondent states as they were carried out under the auspices of the
UN.72 The case emanated from the detention of Mr Sara mati and the
killing of a child by an unexploded Cluster Bomb Unit that had been
dropped by NATO.
Mr Saramati was detained by the KFOR for six months. The KFOR
took the legal position that it had the right to detain Mr Saramati
under Resolution 1244 on the basis that it was necessary in order ‘to
maintain a safe and sec ure environment’ and to protect KFOR troops.73
Mr Saramati’s detention was maintained notwithstanding a ruling of
the Supreme Court direct ing his release. He had been arrested on 24
April 2001 by the United Nations Mission in Kosovo police and brought
before an investigating judge, on suspicion of attempted murder and
illegal possession of a weapon, who ordered for his detention. On
23 May 2001, a prosecutor led an indictment and on 24 May 2001,
the District Court ordered his detention to be extended. Mr Saramati
appealed to the Supreme Court. On 4 June 2001, the Supreme Court
allowed Mr Saramati’s appeal and he was released.
In July, Mr Saramati was arrested again on the direction of the
Commander of KFOR on the basis that he was connected to t he armed
groups operating in Kosovo. Mr Saramati was held until 6 September
2001 when his case was tran sferred to the District Court for trial u nder
the Municipal Criminal Code. Mr Saramati challenged the legality of
his detention at the European Court of Human Rights. In the course
of its proceedings, the Court had the opportunity to consider whether
KFOR had the authority to detain and opined t hus: ‘Having regard to …
UNSC Resolution 1244 (paragraph 9 as well as paragraph 4 of Annex 2
to the Resolution) … the Court considers it evident that KFOR’s security
mandate included issuing detention orders.’74
The Court did not, however, go into an analysis of this opinion
besides concluding that from the reading of the Resolution 1244,
KFOR had the requisite legal authority to carr y out detention activities.
Through Resolution 1244, the UNSC authorised member states and
relevant international organisations to establish international security
presences with all the necessa ry means to full its responsibilities. The
authority to utilise all means necessary was interpreted both by the
71 European Cou rt of Human Rights (Grand Cha mber Decision) Agim Behrami
And Bekir Behrami v France (2 May 2007) Applicat ion No 71412/01 and 78166/01
at 182 .
72 Ib id at 14 8–149.
73 Ibid.
74 Ibid at 124.
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legal counsel for KFOR and the European Court of Human Rights to
have had an implied authority to carry out detentions activities.75
The Court went on furt her to opine that when member states
undertook to carry out operations authorised by t he UNSC under
Chapter VII of the Charter such act ions were precluded from the
scrutiny of the Court. According to the Court, any such scrutiny
would be tantamount to interfering with the effectiveness of the
operations and the central role of the UNSC; the maintenance of
international peace and security.76 In addition, the Court concluded
that it was precluded from examini ng such operations as it would
also be tantamount to imposing conditions on the implementation
of a UNSC Resolution which was not provided for in the text of the
Resolution itse lf.77 In the opinion of the Court, the powers granted to
the UNSC under the Char ter were very wide and varied.
From the conclusion of the Court, it is quite apparent that the scope
of the UNSC resolutions is not clear. This means that the parties who
rely on it to carry out detention operations have a very wide latitude to
determine what is appropriate and what is not. The authority to carry
out detention operations was implied from the provisions of the UNSC
Resolution; it was not expressly provided for. It is left to the parties
to determine the scope and limitations of their detention operations.
This gives rise to a situation where there are differing standards and
practices adopted by parties to the conict and creates room for abuse.
3.2 UNSC Resolution 1546
Resolution 1546 was adopted on 8 June 2004 at the 4987th meeting of
the UNSC. It was adopted under Chapter VII of the Charter, against
the backdrop of the occupation in Iraq and the transitional period
to the Iraq Interim Government (Resolution 1546).78 The Resolution
reafrmed the authorisation of the presence of forces in Iraq. Annexed
to the Resolution 1546 were two letters; one letter was from the Prime
Minister of the Interim Government of Iraq, Dr Ayd Allawi, while the
other was from the US Secretary of State, Colin L Powell. In his letter,
the Prime Minister had requested the UNSC and the International
Community to support Iraq dur ing its transitional period. Specically,
the letter requested a UNSC resolution to enable the multinational
forces in Iraq to continue providing securit y in Iraq as the Government
embarked the process of establishing its own security forces.
75 See note 69.
76 Ibid at 149.
77 Ibid.
78 United Nations Secur ity Council Resolution 1546 (2004) S/R ES/1546, 8 June 2004.
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42 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW
In his letter, Mr Colin Powell granted the request from the Interim
Government and assured that the multinational forces stood ready
to continue to undertake a broad range of tasks to contribute to the
maintenance of security in Iraq. The letter identied activities that
were ‘necessary to counter security threats posed by forces seeking
to inuence Iraq’s political future through violence.’ They included
combat operations, internment, where necessary for imperative reasons
of security, and the continued search for and secur ing of weapons that
threatened Iraq’s security.
On the basis of the Resolution 1546, the authorities in Iraq issued a
Memorandum on security internment. It provided that:
Any person who is detained by a nat ional contingent of the MNF
[Multinational Force] for imperative reasons of secu rity in accordance
with the mandate set out in U NSCR [United Nations Secur ity
Council Resolution] 1546 (hereinafter ‘security internee’) shall, if he
is held for a period longer than 72 hours, b e entitled to have a review
of the decision to intern him … S ecurity internees who a re placed in
internment after 30 June 2 004 must in all cas es only be held for so
long as the imperative reasons of se curity in relation to the i nternee
exist and in any cas e must be either released from intern ment or
transferred to t he Iraqi criminal jur isdiction no later than eightee n
months from the date of induction into an M NF internment facility.79
One of the persons detained on this basis was Mr Hilal Abdul-Razzaq
Ali Al-Jedda. He was detained by the British forces at the Sha’aibah
Divisional Temporary Detention Facility in Basrah City between October
2004 and December 2007 without trial. Upon his release, he brought
an action against the UK Government, which went all the way to
the European Court of Huma n Rights. The vagueness of the UNSC
resolutions came alive in the UK Supreme Court proceedings of the Al-
Jedda case (R (on the application of Al-Jedda) (FC) (Appellant) v Secretary of
State for Defence),80 where the Court noted that:
It is not clear to me how far UNSC Resolution 1546 went when it
authorized the [Multi-Nat ional Force] to ‘take all necessary mea sures
to contribute to the maintenance of sec urity and stabilit y in Iraq, in
accordance with the lette rs annexed to this resolution expre ssing, inter
alia, the Iraqi request for the conti nued presence of the multinational
force and setting out its task s’ (para 10). The ‘broad range of tasks’ were
79 Coalition Prov isional Authority Memorandum Nu mber 3 (Revised) CPA/
MEM/27 June 2 004/03 [own emphasis].
80 United Kingdom House of Lords (Appe llant Committee) R (on the application
of Al-Jedda) (FC) (Appellant) v Secretary of St ate for Defence (Respondent) (2 9–31
October 20 07) UKHL 58.
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listed by Secreta ry of State Powell as including ‘combat operations
against members of thes e groups [seeking to inuence Ir aq’s political
future throug h violence], internment where this is necessa ry for
imperative reasons of sec urity, and the continued search for and
securing of weapon s that threaten Iraq’s securit y’. At the same time,
the Secretar y of State made clear the commitment of the forces which
made up the MNF to ‘act consistently w ith their obligations under the
law of armed conict, i ncluding the Geneva Conventions.
Resolution 1546 became the subject of extensive analysis by the
European Court of Human Rights in the case of Al-Jedda v the United
Kingdom.81 Although the case was based on the alleged breach of Al-
Jedda’s rights under the European Convention on Human Rights, it
has signicant implications on the application of humanitaria n law,
particularly as it relates to the regu lation of detention.
In the case, the UK argued that it had an obligation from the
Resolution 1546 and the Charter to detain persons in Iraq for imperat ive
security reasons. After analysing the lang uage used in the Resolution
1546, the Court concluded that the UNSC Resolution authorised the
multinational forces to restore peace and security in Iraq, but left the
means with which to achieve that goal to the states participating in
the Multinational Force.
From the above analysis it is clear the Court encountered ser ious
difculties in i nterpreting the limits of the powers granted by the U NSC
Resolutions. From practice it is also evident that states have interpreted
these powers differently. For instance, relying on UNSC Resolutions
the provisional administration in I raq promulgated a law providing for
detention for up to 72 hours, while in Afghanistan the coalit ion forces,
still relying on UNSC Resolutions provided for internment of up to 96
hours.82 The UK, using the same UNSC Resolution, came up with a
different procedure for internment.83
Some scholars have questioned whether the phraseology used by
the UNSC, ‘all necessar y measures’ is sufcient to authorise detention.84
81 ECHR (Grand Chambe r) Al-Jedda v The United Kingdom (7 July 2011) Application
No 27021/0 8.
82 United Nations Secur ity Council Resolution (20 01) S/RES/1386, 20 December
2001 charged ISA F and the Afghan Inter im Authority with the r esponsibility
of restoring peace and ord er in Afghanistan.
83 United Kingdom Minist ry of Defence, ‘Stop, Search, Q uestion and Detention
Procedu res’, available at tps://www.gov.uk/govern ment/uploads/sys tem/
uploads/attachment_data/file/453955/T2-FOI03471_Enc_Redacted.pdf>
(accessed on 6 October 2018).
84 Peter Rowe ‘Is there a Right to De tain Civilia ns by Foreign Armed Force s
during a Non-Inter national Armed Conict?’ (2012) 61:3 The International and
Comparative Law Quart erly 697.
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Some commentators contend that a UNSC Resolution cannot authorise
detention that would have an effect of altering national law.85
The uncertainty t hat emanates from the use of the UNSC Resolution
can be clearly demonstrated by the United Nations Assistance Mission
in Iraq. In its report of October 20 05, United Nations Assistance
Mission for Iraq (UNAMI ) observed that many detainees faced lengthy
internment without judicial oversight. It was not clear for how long
the detainees would be detained. The report provided thus:
In the July to August report U NAMI observed t hat the high number
of persons detained ac ross the country duri ng security operat ions
continues to be a matter of concern. Inter nees should enjoy all the
protections envisaged in a ll the rights guar anteed by international
human rights conventions. Many have repor ted their inability to
obtain informat ion concerning their relatives du ring initial phase s
of detention. Without disregard to due process it would be be necial
to establish mechanism s for speedier consideration of detainee c ases
which could have a benecial i mpact on the overall politica l process.
UNAMI noted that the large number of detainees held in the country
remained a matter of concern. Although there was some progress in
which review of the cases had led to releases of a number of detainees,
the overall number remained high and continued to increase due to
mass arrests carried out during security and military operations. The
vast majority of the detainee population were individuals interned
under MNF-I jur isdiction for ‘imperative reasons of security.’ A review
mechanism composed of Iraqis and MN F-I was created in August 2004 as
a way to enable exceptional procedures to be applied which violate Iraqi
emergency law, criminal law and international standards governing
the protection of civilians under the law. According to the Ministry of
Human Rights, some 200 to 250 cases were reviewed each week by this
mechanism, resulting in some releases. Despite the releases, the Human
Rights Ministr y reported an overall increase of the number of detainees
due to continuing mass arrests and detention operations urging that
there was an urgent need to provide a remedy to lengthy internment for
reasons of security w ithout adequate judicial oversight.
The inference that can be drawn from this report is that the
mechanism for detention faced some serious challenges. The cha llenges
clearly entailed questions of who could be detained, for how long and
pursuant to what procedures. Unfortunately, the UNSC Resolution
relied on as the legal basis of authority for detaini ng, had not answered
these questions.
85 Ibid.
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3.3 UNSC Resolution 1386 (2001)
UNSC Resolution 1386 was adopted on 20 December 2001. It
established the International Secur ity Assistance Force (ISAF) and the
Afghan Interim Authority. It granted upon states participating in ISAF
the authority to take “all necessary measures to f ulll its mandate”.
One of the cases emerging from UNSC Resolution 138686 (Resolution
1386) was the UK High Court case of Serdar Mohammed v Ministry
of Defense.87 This case involved the detention of a suspected Taliban
commander by the armed forces of the UK. T he UK High Court held
that the detention of Mohammed was unlawful and subsequently key
to the general British detention policy in Afghan istan. This case is
one of several hundred cases that were brought before the UK courts
for damages for unlawful detention conducted by the British forces in
Iraq and Afghanistan. This particula r case went to the UK Supreme
Court and was consolidated and heard together in Abd i Ali Hameed
Al-Waheed & Another v the Ministry of Defence.88 Although the verdict
of the case was overturned on appeal, both the High Court and
the Supreme Court were in concurrence on the question of authority
to detain.
The High Court r uled that the law of armed conict offered neither
authorisation nor regulation on detention. The Court was of the view
that for IHL to have provided sufcient basis for authority to detain,
this would have been expressly stated in the relevant treat y provisions.
Justice Leggatt stated that:
I do not see how CA3 (common article 3) or AP2 (Additional P rotocol
II) could possibly have been intended to prov ide a power to detain,
nor how they could reasonably be interpreted a s doing so, unless it
was possible to identify the scop e of the power. However, neither
CA3 nor AP2 speci es who may be detained, on what grounds, in
accordance with what procedur es, or for how long. All that seems to
me to be contemplated or implicit in CA3 and AP2 is t hat during non-
international armed con icts people will in fact be deta ined.
The Court concluded that while the law of NIAC recognised the
possibility of detention (as evidenced by the language of Common
Article 3 and Articles 5 and 6 of Additional Protocol II), that fact alone
did not give authority to detain. The Court, t herefore, observed that
86 UNSC Resolution 1386 op cit note 81.
87 United Kingdom High Co urt (Queen’s Bench Division) Serdar Mohammed v
Ministry of Defence an d Others (2014) 1369 EWHC (QB).
88 See United Kingdom Supreme Cou rt Abd Ali Hameed Al-Waheed (Appellant) v
Ministry of Defence ( Respondent) [2017] UKSC 2.
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the analysis of lawfulness in detention had to be assessed on some
other basis such as domestic law or UNSC Resolutions.
The case of Serdar Mohammed v Ministry of the Defence was appealed
to the Court of Appeal and nally to the UK Supreme Court.89
The appeal was based on two main g rounds: (1) Whether HM armed
forces had the legal power to detain SM in excess of 96 hours pursuant
to (a) the relevant resolutions of the UNSC; and/or (b) IHL applicable in
a NIAC. (2) And if so, whether Article 5(1) of the European Convention
on Human Rights90 should be read so as to accommodate, as permissible
grounds, detention pursuant to such a power to detain under a U NSC
Resolution and/or IHL.91
Since IHL treaty law does not provide explicitly the authority to
detain, Lord Sumption, in the Supreme Court judgment, pointed out
that this was to be answered either by c ustomary international law
(which he concluded has not developed to the point of conferring such
authority) or UNSC Resolutions.
The Court noted that the UNSC had adopted two resolutions
concerning the situation in Afghanistan, where Serdar Mohammed
was a national. Besides Resolution 1386, in 2009, at around the time
of Serdar Mohammed’s detention, the UNSC also adopted Resolution
1890 92 extending the mandate of ISAF by twelve months and re-
afrming its earlier resolutions as well as its support for ISAF. The
authority to take ‘all necessary measures to achieve its mandate’ was
interpreted to include detention for the purpose of protection of the
armed forces, self-defence, and accomplishment of the mission.
The Court ruled t hat since the UNSC derives its powers from
Article 24 and Chapter VII of the Charter, its resolutions are binding
not only as a matter of treaty but also of customary international law.
The provisions of the Charter being the grundnorm in international
law, take precedence over any other law, including the European
Convention on Human Rights and its Article 5. Additionally, the
provisions of Chapter VII on the UNSC are regarded as jus cogens.93
Therefore, even though the European Convention on Human Rights
in Article 5(1) does not authorise the detention of the character of
89 United Kingdom Supreme Cour t (Judgement on appeal from [2014] EWHC
2714 (GQ) and [2015] EWCA Civ 843) Serdar Mohammed (Respondent) v Ministry
of Defence (Appellant) [2017] UKSC 2.
90 European Convention for t he Protection of Human Rig hts and Fundamental
Freedoms (ECHR), 4 Novembe r 1950, 213 UNTS 222, Ar ticle 5(1) provides that
detention is to be ‘in accordance w ith a procedure prescribed by law’.
91 Ibid.
92 United Nations Secur ity Council Resolution 1890 (2009) S/R ES/1890, 8 October
20 09.
93 House of Lords (Appeal Judgment) Kuwait Air ways Corporation v Iraqi Airways
Company [2002] 2 AC 883.
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BY ALL MEANS NECESSARY 47
Serdar Mohammed, the UNSC Resolutions provide the legal basis for
authorisation of detention in NIACs. The Court thus r uled that the
detention of Serdar Mohammed by the UK forces was lawfu l.
On appeal, the case of Serdar Mohammed w as heard in a consolidated
appeal together with the case of Abd Ali Hameed Al-Waheed v Ministry of
Defenc e.94 Here, the relevant UNSC Resolutions were two, granting the
power to multinational forces in Iraq to use ‘all necessary measures’ to
accomplish their mission.95 Resolution 1546 on Iraq was followed by a
letter by the United States Secretary of State, authorising internment.
The language of the resolutions was also interpreted to, inte r alia, grant
authority to detain. The Supreme Court was convinced that the UNSC
Resolutions provided sufcient authority for the military forces to
detain persons when it was necessary for the accomplishment of the
stated mission.
4 CONCLUSION
The analysis of the above UNSC Resolutions reveals that they are
addressed to states actors. The application of IHL presupposes
belligerent equality but does not affect the legal status of the parties
to the conict.96This is reected in t he spirit of both Common Article
3 and Additional Protocol II. Common Article 3 provides that once
there is an NIAC ‘each Party to the conict shall be bound’ to apply
IHL. This provision grants the same rights and imposes the same
obligations on both the state and the non-state party, all of which are
of a purely humanitarian character.97 Similarly, Additional Protocol
II applies to ‘all armed conicts which take place in the territory of a
High Contracting Party between its armed forces and dissident armed
forces or other organized armed g roups’ By being on the same pedestal
of rights and obligations there is more incentive for NSA to implement
94 See United Kingdom Supreme Cou rt Abd Ali Hameed Al-Waheed (Appellant) v
Ministry of Defence ( Respondent) [2017] UKSC 2.
95 See Note 35.
96 Ezequiel Heffes ‘ Detentions by Armed Oppo sition Groups in Non-International
Armed Con icts: Towards a New Characteri zation of International Huma ni-
tarian Law ’ (2015) 20:2 Journal of Conict & Sec urity Law 229.
97 See ICRC ‘Treaties, States Par ties, and Commentarie s – Convention (I)
for the Amelioration of the Cond ition of the Wounded and Sick in Armed
Forces in the Field. Geneva, 12 Aug ust 1949 ‘Commentary of 2016 Article
3 Conicts not of an I nternational Character ’, available at
databases.icrc.org/applic/ihl /ihl.nsf/Comment.xsp?action=openDoc ument&
documentId=59F6CDFA490736C1C1257F7D004BA0EC> (accessed on 29 Octo-
ber 2 018).
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48 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW
IHL.98 It would, for instance, be inconceivable that the NSA would
treat detainees on their custody while, on the other hand, their own
personnel who are detained would face prosecution.
Therefore, the UNSC Resolutions designed to be the legal basis
of detention should employ a similar language as that used in IHL
treaties. The examples of UNSC Resolutions cited above present a
challenge primarily because they fail to adopt the ‘language of IHL’.
From a practical consideration, the employment of such language
would mean that only state parties to a NIAC could legally car ry out
detention operations. The consequences that ow from that would
be to take away a legal right under IHL from the NSA par ties to the
conict which they would otherwise be entitled to.
The UNSC resolutions that authorise detention should also be
accompanied by a statue that spells out the rules that should be
followed upon detention. These rules could be adopted from the rules
applicable to the IACs but must be specically provided for. Until such
time as such measures are put in place, the practice of using UNSC
Resolutions as a basis for detention in NIACS will continue posing some
serious legal challenges to detention operations in armed conict.
98 Christopher Greenwood ‘T he Relationship between Ius Ad B ellum and Ius in
Bello’ (1983) 9:4 Review of Internat ional Studies 221.
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