The judge is in my view entirely correct
Posted: Tue Feb 18, 2025 3:52 am
However, the judge notes that he does not have to pronounce on the validity of the partial displacement variant of lex specialis in the absence of any derogation, since in his view IHL in NIACs does not provide any express detention authority anyway (para. 287). He proceeds to find the more modest, interpretative version of lex specialis (i.e. that IHL is to be taken into account in interpreting the relevant provisions of human rights treaties) to be entirely unobjectionable, while noting the difference between the open arbitrariness standards used in Article 9 ICCPR and the closed list of grounds for detention in Article 5 ECHR:
291. Unlike Article 9(1) of the ICCPR, however, Article 5(1) of the Convention is much more specific and prohibits arrest or detention “save in the following cases” which are then exhaustively defined. Given the specificity of Article 5, there is little scope for lex specialis to operate as a principle of interpretation. Furthermore, in view of my conclusion that in a non-international armed conflict IHL does not specify grounds for detention or procedures to be followed, there are in my view no relevant rules of IHL with which to try to harmonise the interpretation of Article 5.
292. As I see it, where IHL would be relevant in applying the linkedin database Convention is in situation where a state resorted to measures derogating from Article 5 on the basis that it was involved in a non-international armed conflict. In such circumstances it could be argued that, under customary IHL, certain fundamental guarantees against the arbitrary deprivation of liberty should still be respected (see paragraph 260 above). To the extent that such guarantees form part of customary IHL, derogations from them would be “inconsistent with [a state’s] other obligations under international law” and therefore not permitted by Article 15.
On this, again,
(6) SM’s detention violated Article 5 ECHR. While the detention up to 96 hours was Article 5-compliant, the 110 days that SM spent in UK detention were not. Purely preventive security detention violated Article 5(1) ECHR absent a derogation (para. 310). SM was not brought promptly before a judicial officer, not given the possibility of judicial review of his detention. In particular:
343. I referred in part VI above to the principle endorsed by the European Court in the Al-Skeini case that the obligation under Article 1 to secure Convention rights can be “divided and tailored” to reflect the extent of the relevant control on which extraterritorial jurisdiction is founded. Counsel for the MOD submitted that, in accordance with this principle, if Article 5(3) cannot be interpreted sufficiently flexibly to accommodate the fact that the UK had no power to bring SM before an Afghan court, then it must be regarded as inapplicable.
291. Unlike Article 9(1) of the ICCPR, however, Article 5(1) of the Convention is much more specific and prohibits arrest or detention “save in the following cases” which are then exhaustively defined. Given the specificity of Article 5, there is little scope for lex specialis to operate as a principle of interpretation. Furthermore, in view of my conclusion that in a non-international armed conflict IHL does not specify grounds for detention or procedures to be followed, there are in my view no relevant rules of IHL with which to try to harmonise the interpretation of Article 5.
292. As I see it, where IHL would be relevant in applying the linkedin database Convention is in situation where a state resorted to measures derogating from Article 5 on the basis that it was involved in a non-international armed conflict. In such circumstances it could be argued that, under customary IHL, certain fundamental guarantees against the arbitrary deprivation of liberty should still be respected (see paragraph 260 above). To the extent that such guarantees form part of customary IHL, derogations from them would be “inconsistent with [a state’s] other obligations under international law” and therefore not permitted by Article 15.
On this, again,
(6) SM’s detention violated Article 5 ECHR. While the detention up to 96 hours was Article 5-compliant, the 110 days that SM spent in UK detention were not. Purely preventive security detention violated Article 5(1) ECHR absent a derogation (para. 310). SM was not brought promptly before a judicial officer, not given the possibility of judicial review of his detention. In particular:
343. I referred in part VI above to the principle endorsed by the European Court in the Al-Skeini case that the obligation under Article 1 to secure Convention rights can be “divided and tailored” to reflect the extent of the relevant control on which extraterritorial jurisdiction is founded. Counsel for the MOD submitted that, in accordance with this principle, if Article 5(3) cannot be interpreted sufficiently flexibly to accommodate the fact that the UK had no power to bring SM before an Afghan court, then it must be regarded as inapplicable.