As the English Court of Appeal breaks for the summer vacation, scores of international lawyers are about to descend on one of its latest decisions: Mohammed v Secretary of State for Defence; Rahmatullah and Ors v MoD and FCO  EWCA Civ 843. In this 109-page long judgment, the Court upholds the conclusion reached at first instance by Leggatt J that British armed forces participating in ISAF lacked the legal authority under international law to detain suspected insurgents captured in Afghanistan.The implications of Serdar Mohammed are considerable. The case raises difficult questions about the place the European Convention on Human Rights (ECHR) occupies in the international legal order and, more broadly, about the relationship between international human rights law and international humanitarian law (IHL). Those who have followed this debate will recall that we were not convinced by Leggatt J’s reasoning on these points (see here, here and here). In so far as it upholds his main conclusions, we also find ourselves in disagreement with the judgment now delivered by the Court of Appeal. Rather than rehearsing our arguments on the underlying issues in full (see in detail here), in this post we would like to briefly comment on those aspects of the Court’s decision which, in our view, take the debate forward and those which do not.
Untangling Extra-Territorial Jurisdiction from International Responsibility in Jaloud v. Netherlands
In this article, I argue that the European Court has taken one step forward in the Jaloud case by introducing the notion of full command into the debate on extra-territorial jurisdiction, but two steps back by sowing unnecessary confusion with regard to the applicable rules of attribution.
This article examines the implications of the Serdar Mohammed case on the law of armed conflict. It argues that the judgment is mistaken as a matter of law and undesirable as a matter of policy, as it drives the convergence between international human rights law and the law of armed conflict too far.
I have spent three days with HQ Allied Rapid Reaction Corps (ARRC) on its annual training exercise, ARRCADE FUSION 14, in November 2014. The exercise took place at RAF St Mawgan near Newquay in Cornwall. One of its aims was to test the air and sea command capability of the ARRC, following its 'upgrade' to a combined joint task force headquarter.
On 26 September 2014, Parliament approved British military intervention in Iraq against Islamic State by 524 to 43 votes. The previous day, the Government published a summary of its legal position for military action, suggesting that the consent of Iraq ‘provides a clear and unequivocal legal basis for the deployment of UK forces and military assets to take military action to strike [Islamic State] sites and military strongholds in Iraq.’ On 6 October 2014, we convened a 'rapid reaction seminar' to offer some initial thoughts on the legal and strategic aspects of this development.
The recent High Court judgment in the case of Serdar Mohammed v. Ministry of Defence  EWHC 1369 (QB) has sparked a lively debate about the authority to detain individuals in the context of a non-international armed conflict (NIAC). In response to a post by Kubo Mačák offering a critical perspective on Mohammed, Lawrence Hill-Cawthorne and Dapo Akande have lent their support to the judgment in arguing that no legal basis for lethal targeting and detention exists in IHL.Essentially, Lawrence and Dapo advocate an understanding of IHL which conceives it as a purely regulatory framework in the sense that its sole purpose is to impose constraints on how States and non-State actors conduct hostilities, without recognising or conferring any rights on them to engage in such hostilities in the first place. On this view, killing and detention is permissible in armed conflict not because it is authorized by the rules of IHL, but because, and only in so far as, it is not prohibited by other rules of international law. In this post, I intend to demonstrate why this ‘Lotus approach’ to IHL is not compelling.
On 1 May 2014, Professor Michael N Schmitt delivered a seminar on 'Future War and the Evolution of IHL' at Exeter Law School. In his talk, Professor Schmitt offered his thoughts on the relationship between changes in the nature of warfare and the evolution of international humanitarian law. In particular, he asked how future warfare is likely to shape the interpretation and application of international humanitarian law, focusing on the effect of cyber operations, the fielding of autonomous weapon systems, and increased visibility of the battlespace. I had the pleasure of acting as a respondent.
On 29 April 2014, we hosted a day conference on Targeted Killing: Clearing the 'Fog of Law' at the University of Exeter. The event started with a presentation by Professor Michael Schmitt, with Professor Charles Garraway and Dr Anicée Van Engeland acting as respondents. In the afternoon, Major General (ret) Jerry Thomas CB DSO offered his personal view on drone warfare. The event was hosted jointly by the and the Exeter Research Programme in International Law and Military Operations convened under the auspices of Strategy and Security Institute.
In July 2013, the House of Commons Defence Committee launched an inquiry into the legal framework governing future operations of the British armed forces as part of its preparations for the next Strategic Defence and Security Review. The Committee has now published its findings in a report entitled ‘UK Armed Forces Personnel and the Legal Framework for Future Operations’. This post reviews some of the main features of the report.
The European Convention on Human Rights (ECHR) is a key component of the legal framework governing the activities of the British armed forces. In recent years, the Convention’s application to military operations has come under growing criticism, leading commentators to call upon the Government to derogate from the ECHR during deployed operations. It is not immediately clear, however, whether or not derogations are in fact available to the UK in such circumstances. The purpose of this submission is to shed some light on this issue.