Take no prisoners? What the decisions in Hassan v United Kingdom and Sedar Mohammed v Minister of Defence mean for the legality of detention in armed conflict

Abstract

Detention is a necessary part of armed conflict, and is thus permitted by international humanitarian law in conflicts of an international character. However, detention also raises human rights concerns and is limited by human rights instruments, like the European Convention on Human Rights. The recent case of Hassan v United Kingdom constitutes the European Court of Human Rights’ first substantive discussion of the relationship and conflict between these two areas of law. The Court concluded that, as the United Kingdom was acting in accordance with international humanitarian law, its actions were not a breach of the European Convention, even though the Convention does not permit internment in armed conflict. In Serdar Mohammed v Minister of Defence the United Kingdom Court of Appeal continued the discussion of detention in armed conflict and in doing so reached the conclusion that there is no international humanitarian law authority to detain in conflicts of a non-international character. This paper examines the issues raised by those two cases. It highlights problems with the reasoning in Hassan and suggests a logical alternative: derogation from the European Convention. The paper also analyses the decision in Mohammed, and concludes that while the finding is concerning, it is likely to change in future due to customary law developments.