Protection of Detainees in Non-International Armed ‎Conflicts under International Human Rights Law: With A ‎View on Serdar Mohammed v. UK Ministry of Defence ‎Case

Document Type : Research Paper

Authors

1 Department of International Law, Faculty of Law, University of Qom, Qom, Iran

2 Public International Law, Faculty of Law, University of Qom, Qom, Iran‎

Abstract

Since its earliest elaborations, international humanitarian law (IHL) has treated international and non- international armed conflicts differently. The consequence of this difference is that the former (conflicts between two or more states) have traditionally been regulated far more comprehensively than the latter (conflicts between states and non- state armed groups, or between such groups). In light of the post-1945 shift that has seen non- international conflicts become the norm, this distinction seems particularly anachronistic. This differentiated approach to the regulation of armed conflict is particularly stark with respect to preventive, security detention or ‘internment’, defined as a deprivation of liberty ordered by the executive on the basis of future security threat without criminal charge. International Human Rights Law (IHRL) preserves the minimum standards of a dignified life for human beings everywhere and at any time. Detainees of non-international armed conflicts (NIAC) are considered to be one of the groups that due to their conditions are in a vulnerable situation and need special protection of this system. As in contemporary international law the members of this group are not combatants and consequently, are not regarded as PW, they do not enjoy the protections in Geneva Convention III. Accordingly, the necessity of protecting them in IHRL seems to be more clear than ever. Although there is no instrument and organ which independently and specifically deals with the protection of detainees of NIAC in the framework of current IHRL, searching the general human rights system and its related provisions and standards may lead us to some protective measures and rules for these individuals. The present article, through a descriptive-analytic method, aims at studying the protections afforded to this group in IHRL and Serdar Mohammed case. The case of Serdar Mohammed v. UK Ministry of Defence, through a somehow comprehensive analysis of subjects and topics about detention as a whole, has outlined many core legal issues surrounding the protection of detainees in NIAC. It has shed light on less-clear aspects and layers of this serious challenge for protection of dignity of human beings in the current conflicts of different parts of the world and specifically the Middle East. Reliance of the contemporary international law foundations on the state-centered Westphalian system and the difficulty of adhering non-state groups, are among the main challenges meeting the protection these individuals in IHRL. Furthermore, promoting the protection of groups such as women and children that are facing with double-vulnerability in the detention status in NIAC, is considered to be one of the inevitable requirements for effective protection of this group. In this regard, introducing a collection of applicable substantive and procedural laws that both direct the acts of sates and non-state armed groups and protect the rights of injured persons becomes an absolute necessity.

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References

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Comparative Law Review
Volume 14, Issue 1
Spring & Summer 2023
July 2023
Pages 411-432

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