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British Foreign Policy towards China: Short-sightedness Disguised as ‘Pragmatism’?

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Britain’s Prime Minister Boris Johnson during the celebrations for Chinese New Year in London, 2020 (Image credit: AFP)

When COVID-19 is the product of a breach of human rights within China itself, ignoring human rights in a post-COVID world order is frankly naïve and hardly “pragmatic”.

In his 1941 State of Union address, U.S. President Franklin D. Roosevelt outlined the Four Fundamental Freedoms that every person in the world is entitled to enjoy: freedom of speech, freedom of worship, freedom from want, and freedom from fear. These four principles would later serve as the foundation upon which the 1948 Universal Declaration of Human Rights was formed, ushering in a new era in which the human rights violations of states became a matter of concern that permeates far beyond its own sovereign territories. Contemporary human rights were borne out of a pragmatic concern that our ideals and principles at a certain level become a personal matter; since without human rights, there can be no human security.

The end of the Cold War would put an end to ideological conflict over the value of fundamental freedoms. Today, our post-Cold War world order lacks such kind of predictability and, thus, more uncertainty with regards to the international order can be expected. Moreover, in a post-COVID-19 world and amid a crumbling Pax Americana under Trump, the traditional state advocates of human rights are now MIA. This is an erosion of the liberal world order which is eating itself from within, with President Trump projecting an image of the USA is quite the opposite of most of its traditional ideals. Across the Atlantic, Brexit has further distorted unity both in the Anglosphere and within Europe.

Indeed, some seem more concerned about the economic damage that COVID-19 will bring if we do not appease Xi Jinping’s China, citing Realpolitik as a justification. In this regard, Professor Kerry Brown argues that given Brexit, the UK should reconsider its stance towards the Hong Kong crisis, given the country’s weak economic relations with China. One can disagree with this assertion since the notion of China as a ‘successful capitalist nation’ leaves the causes and consequences behind this success undefined. That is not to say that relations with Australia and New Zealand are not anything positive, but we have to consider fostering free trade relations across the D-10 member states, as well as with the EU. As for China, the scrapping of the Green GDP Initiative in 2007 is an example. The initiative would have reduced the data on China’s real GDP growth to zero. Indeed, Green GDP took into account environmental degradation, socioeconomic inequalities, and loss of biodiversity in China’s real GDP growth. The environment being hardly a significant concern for the cold realism of the status quo international relations and diplomacy is of course no surprise to anyone.

But that clearly misses the point of what we are faced with during the COVID-19 crisis. Ideally, this pandemic will serve as a tipping point and a shift away from business-as-usual in dealings with China. Arguably, it was the country’s repression of the fundamental freedoms (primarily freedom of speech) of its own scientists and academics that lays at the root of the current crisis. Never has there been a more urgent time to stress the significance of human rights than in this time of Corona. Indeed, our quality of life can only flourish when our fundamental freedoms are respected.

To do so, we ought to do away with this perception that our idealist concerns can never overlap with our pragmatic ones. That is not to disregard China’s ability to be one of the most powerful economies in the world without civil and political liberation as illegitimate. But the staggering boom of China’s economy over the past couple of decades simultaneously led to the accumulation of enormous amounts of inequalities, on top of excessive environmental pollution and abuse. This abuse of nature also notably contributed to the ongoing pandemic. Even with these factors aside, the political economies of our free societies are not designed to compete with state capitalism.

British foreign policy is becoming more inconsistent by the day, whilst China’s policies remain consistently expansionist.

The formation of a Democratic 10 (D-10) and the potential intake of British National (Overseas), or BN(O), passport holders from Hong Kong (combined with potential ‘burden-sharing’ agreement amongst the Five-Eyes) is of course considerably an improvement from its initial blasé stance. But the latter fails to address the rights of the remaining Hong Kongers, and most importantly, should not be a panacea to the growing Chinese aggression in its blatant disregard for international norms. That is not to argue that this development has not been provoked by the Trump Administration, but my point is that this can be a recurring theme not just for Hong Kong but in any part of the world. If so, should our response be the same? The recent decision to merge the Department for International Development (DFID) with the Foreign Office is another example of how not to respond. Though a little premature to say, this could lessen the UK’s room of maneuverability and upset future British diplomacy. In so doing, it could also render the idea of “Global Britain” an oxymoron, given China’s usage of COVID to increase its influence in Africa, for instance. British foreign policy is becoming more inconsistent by the day, whilst China’s policies remain consistently expansionist.

However, China’s new National Security Legislation (NSL) for Hong Kong is more of a distraction from Xi Jinping’s party-state’s own mishandling of the COVID-19 outbreak in China itself, which has evidently hurt his standing amongst the elites of his own party. Those pragmatists who justify the incentive for us to appease President Xi in order to safeguard the financial repercussions of Brexit and of COVID-19 are too short-sighted. Those who are truly pragmatic will consider the long-term implications of our free societies and our very own public health and economic welfare; spurring our foreign policies towards China on to become more sophisticated and paying more close attention to human rights.

Over the past year, we have seen the relentless resistance of the people of Hong Kong against the Chinese state’s incursions. The more active approach that has now been taken towards creating a D-10 should extend to Hong Kong as well. If not, the crisis there is bound to produce refugee flows and further destabilise an already volatile region. This would be miscalculation at a time when Western influence in Southeast Asia is still lagging behind that of China. At the same time, a Cold War with China must remain off the table. The real pragmatic solutions should lie somewhere in between. There should be more craftsmanship put into our foreign policies. China’s declaration of its NSL in Hong Kong is clearly against the Basic Law that governs the city. Insofar as China lacks territorial legitimacy (at least until 2047) and the British by a supermajority in Hong Kong hold political legitimacy, there is little reason why this cannot be an advantage to British foreign policy. Commercial interests count too in the picture.

Despite our current obsession not to exacerbate the status quo, it is clear that we would not have arrived here in the first place if we had been standing up against Beijing’s disrespect for fundamental human rights. The country’s blatant disrespect for these rights emanates far beyond its sovereign territory. Previously, we in the West have considered that the effects of China’s unique form of governance (which is firmly opposed to human rights) was confined to its national borders. Yet, this pandemic has aptly demonstrated the far-reaching impact of China’s illiberalism at home. As such, Western policies ought to revise their hitherto assumptions and economic relationship vis-à-vis the CCP regime. So too must we reconsider our assumption that China’s diplomacy will be more scrupulous given Deng Xiaoping’s guiding philosophy of ‘hide your strength and bide your time’. Clearly, this time has now passed. China’s new position in the world order means that it can afford more knee-jerk reactions such as what we have in Xinjiang, Hong Kong, and now COVID-19.

This is significant despite the facts that while Donald Trump may not be re-elected in November and that Asia’s future will still considerably depend on Western financial institutions and trade relations. The lack of a cohesive strategy in the European and Anglosphere will mean that our intergovernmental organisations such as the United Nations will be more vulnerable to be dictated by China and Russia. How can we, coming from free, liberal societies, protect our own fundamental freedoms if we are not taking proactive steps in maintaining a world order that is now presenting to be getting less liberal and orderly?

Surely bargaining our fundamental freedoms for the sake of what is likely to end up as imbalanced trade relations with authoritarian regimes clearly is not what our forefathers have lost their lives for. At present, the ball remains in Britain’s court and we still get to call much of the shots even without the leverage of the EU. Through the D-10, one can be hopeful that the EU can still continue to render a force of unity and perhaps learn that referendums can seriously backfire. It is not to say that illiberalism anywhere will always affect us – it really depends on the power and reach of the country we are dealing with. While human rights may not be at the forefront of foreign policy-making, what we have now with COVID-19 is already a net financial loss. Realpolitik should seek to include human rights in its approach given the reciprocal implications on our fundamental freedoms, national security, and economic prosperity. It is unclear whether the British government realises this.

Strife Series on Human Rights, Security, and Diplomacy in the Asia Pacific – Introduction

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by Anna Tan

(Image Credit: Shannon Stapleton/Reuters)

 

Editorial 

In recent years, the world has seen a rising number of civil protests and movements globally. The eruption of the Hong Kong crisis in mid-2019, where mainstream political dialogues reached a new level of fixation on the increasingly looming authoritarian power of China that pervades well beyond its mainland territories, shook many of us. The rise of China has been overwhelmingly redefining the overall regional security of the Asia Pacific, and how that development influences the shift in the nature of international relations is undoubtedly dependent on the alliance of the Asian countries with the West, especially with the United States.

Reflecting on Müllerson’s theory on the relationship of intrastate human rights and international security[1}, it is indisputable that China under Xi Jinping’s Chinese Communist Party (CCP) is a very strong authoritarian state, and its overtly aggressive policies against Hong Kong’s mass civil resistance not just made headlines for an incredibly sustained period of time throughout the year, but also threatens the international stability by means of possible similar aggressions. It threatens liberal democratic values that are upheld by many free and democratic nations from across the world, especially in a time where American influence has been on a rapid decline since the assumption of the Trump administration. In the Asia Pacific, while nations such as Hong Kong, Taiwan and South Korea face new challenges in manoeuvring through the changing dynamics of international security now jeopardised by the “America first” policy of the United States, other countries such as Myanmar welcome the rising Chinese hegemony. Why and how does this happen?

This Strife Series explores the interplay between human rights and security through diplomatic exchanges in the Asia Pacific. The series analyses how in some countries, addressing human rights, democratic freedom and maintaining status quo national and/or regional security seem to be mutually exclusive at times instead of being mutually reinforcing, despite sharing the common factor of China’s domineering economic leverage.

Publications:

In the first article (12/2019) “China’s Turbulent Year: 2019”, Professor Kerry Brown analyses how China’s aggression in response to the Hong Kong protests and its draconian policies to the Uighur population in Xinjiang have both comparable ‘tit-for-tat’ elements that the Chinese leadership may not have thought through carefully, but will have detrimental consequences to the international opinion on China’s usually very cautious and deliberate efforts on maintaining its diplomatic image.

In the second article (01/2020) “China, Myanmar, War Crimes and the Issue of National Sovereignty”, Anna Tan looks at how Myanmar under Aung San Suu Kyi’s leadership, has strangely shifted from being a Western ally during the landmark victories of the National League for Democracy (NLD) in the 2015 elections to an even stronger adherence to China’s orbit than ever before. She describes how the Sino-Burmese relations have evolved dramatically under the light of the Rohingya conflict in Rakhine and Myanmar’s subsequent genocide trial at the International Court of Justice (ICJ).

The third article (03/2020) “Taiwan Elections: Continuity, Change and the Cross-Strait Conundrum”, Evita Liagka explores what the victories of the Democratic Progressive Party (DPP) under the leadership of Tsai Ing-wen could mean for the future of Taiwan and its cross-strait relations. She points out that the China-Hong Kong crisis came in a convenient timing for DPP’s mobilisation of garnering greater support than ever before and since the public consensus on maintaining the status quo international diplomatic status of Taiwan has remained largely unchanged, we might not see a drastic shift in DPP’s policies from its previous term. However, KMT’s recent decision to swerve away from its pro-China stances might pose newer challenges for Taiwan in the years ahead.

The final articles are contributed by Yeseul Woo, analysing North Asia’s security issues from the perspective of South Korea.

  • In Part 1 (02/2020) “South Korea’s Dangerous Silence on Human Rights Abuses in North Korea”, Yeseul Woo argues why the US lack of sponsorship in the UN Security Council meeting on the discussion of North Korea’s human rights issues should not mean that South Korea should remain silent. Ms Woo explains why, in fact, South Korea’s silence justified by the importance of the nuclear security framework would actually be counterproductive in regional security in the long run.
  • In Part 2 (03/2020) “The First Tech War? Why the Korea-Japan Tensions are about US-China Competition on AI”, Ms Woo further explains that South Korea’s silence on North Korea’s human rights issues for the sake of North Asia’s nuclear security (described in Part 1) is actually the result of the deterioration of Korea-Japan relations which has led to South Korea withdrawing from the GSOMIA pact. Though Seoul retracted its decision last minute, Ms Woo argues that the tensions between Seoul and Tokyo are less about the debate surrounding comfort women and wartime forced labour, and is actually influenced by the US-China competition on Artificial Intelligence (AI) in nuclear surveillance technology.
  1. Müllerson, R. (1997). “Human Rights Diplomacy.” Routledge.

Anna Tan is a postgraduate student for MSc Global Affairs at King’s College London. Her research is focused on how Western human rights diplomacy affects democracy and authoritarianism in Asia Pacific. She has previously worked for UNDP Myanmar and the American Red Cross, and is a member of the Programme Committee of the Conflict, Security and Development (CSD) Conference 2020 hosted by the Department of War Studies and the Department of International Development (DID). Anna holds a BSc in Neuroscience. You can follow her on Twitter: @AnnaTanGTW.

 

South Korea’s Dangerous Silence on Human Rights Abuses in North Korea

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by Yeseul Woo

Kim Jong-un and Moon Jae-in shake hands at the Panmunjom Peace Village in 2018 (Image credit: AFP)

On 3 January 2020, the first North Korean defector reality show “Go to End” began to air on the South Korean television channel Chosun TV. The series follows the journey of a 12-year-old North Korean boy who is defecting to South Korea to meet his parents, who had already defected across the border six years earlier. The documentary provides twenty-two hours of live coverage of the twelve-year-old’s risky journey from North Korea into China, and from there on to Southeast Asian countries. Dangerous escape scenes are captured vividly. It is the first time that the South Korean media televised a depiction of a defection method. South Korean TV stations have of course shown programmes about defectors from time to time, but they had hitherto been mainly talk shows on which defectors shared stories about their defection and their new lives in the capitalist South.

Currently there are over 40,000 North Korean defectors living in South Korea. In addition, in the United States, 219 North Koreans have settled as refugees since the North Korean Human Rights Act was enacted in 2004, which aims to help defectors fleeing the regime by making them eligible for political asylum in the United States. Southeast Asia, especially Thailand, along with countries south of the Chinese border also hosts a considerable number of defectors. When defectors flee North Korea, families get separated. Those left behind will face interrogation by state security officials and, more likely, imprisonment in labour camps or execution. Those defected will need to live a new life in an alien society without their loved ones.

The Korean Peninsula faces a major security challenge – that of a nuclear-armed North Korea. The denuclearisation negotiations between the North and the United States have lost momentum at the time of writing, and it is unclear how quickly talks can resume given impending presidential elections in South Korea and the United States. Human rights issues are often neglected or forgotten in the face of urgent security challenges.

One such example is President Trump’s disinterest in discussing human rights in North Korea in the framework of the United Nations. In December last year, the United States blocked a United Nations Security Council discussion on human rights abuses in North Korea. The Moon Jae-in administration has been complicit, preferring to remain silent on human rights issues so as to not upset relations with Pyongyang.

However, why should we shy away from discussing human rights within the security framework? We need to change the narrative that human rights issues pose as obstacles to security negotiations with North Korea. For example, the Moon Jae-in administration fears that openly addressing North Korea’s human right abuses would impede progress in the denuclearisation negotiations. That is a mistake.

We need to stop framing the human rights discussion as a de-coupled, secondary moral issue. Instead, we should tie human rights to the security narrative. What does genuine peace on the Korean Peninsula mean? Surely it should not merely refer to state survival in an anarchical international system? Rather, genuine peace in the Korean Peninsula could only be achieved if all its citizens, in North and South, are safe from human rights abuses. Only then can our societies prosper and find peace internally but also externally. However, the reality is far from it. According to the North Korean Human Rights Investigation Committee (COI), North Korea’s human rights violations are so ubiquitous that there is no point in measuring them anymore. According to the 2019 World Freedom Report, the current situation of human rights in North Korea over the past 47 years ranks as the worst across the world.

Last December, ten public figures from twenty-two nations and 67 NGOs from around the world sent a letter to President Moon Jae-in urging him not to ignore human rights abuses in North Korea. Signatories included international human rights organisations like the International Federation for Human Rights, Amnesty International, and Human Rights Watch; and individuals such as Thomas Quintana, the UN Special Rapporteur on North Korean Human Rights. The letter unequivocally states that US and South Korean silence on human rights abuses has further encouraged the repression of human rights by the North Korean regime and is inconducive to ongoing efforts to conclude a genuine peace settlement. In the letter, the signatories criticise the Moon Jae-in administration’s refusal to co-sponsor a United Nations General Assembly Resolution on the human rights situation in North Korea on 14th November 2019. Since 2005, similar resolutions on human rights issues pertaining to North Korea were adopted by the UN General Assembly; South Korea had co-sponsored these resolutions for 11 years before Moon Jae-in’s refusal to support similar efforts in 2019.

The Moon Jae-in government prefers to postpone discussing human rights in North Korea until the North Korean nuclear issue is resolved, setting out five visions and national goals for peace and prosperity on the Korean Peninsula. The government made 100 pledges to this effect. Although one of them is to improve human rights in North Korea and resolve humanitarian issues such as separated families, it is a pity that Moon Jae-in now prefers to be silent on the human rights situation in North Korea. This silence is indeed dangerous as it will not signal respect to North Korea, but it will inevitably be seen by those in Pyongyang as South Korean and US weakness. If we cannot even defend our values against North Korea, how can we ensure the security of our free societies?

Yeseul Woo is a PhD candidate at the Department of War Studies at King’s College London and a Developing Scholar at the Hudson Institute, Washington, D.C. She has previously served as a journalist for South Korean and U.S. media outlets and as a fellow at the East West Center, at the Pacific Forum and at the Harry S. Truman Institute.

Beyond the peace deal: defending human rights in “post-conflict” Colombia

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By: Felix Manig

A demonstrator holds the Colombian flag during a march against the Revolutionary Armed Forces of Colombia, or FARC, in Bogota.
A demonstrator holds the Colombian flag during a march against the Revolutionary Armed Forces of Colombia, or FARC, in Bogota.

On November 24, the Colombian state and the Revolutionary Armed Forces of Colombia (FARC) signed a historic peace agreement in a display of political maturity and determination. Despite the initial ‘No’ vote and consequent rejection of a peace agreement by the public in October, the two sides quickly put forward the amended record which is hoped to address critics’ prior concerns. While the revised peace deal represents a second and real opportunity to begin a formal process to bring the 52-year internal armed conflict to an end, local human rights defenders (HRDs) remain wary of their future amidst rising violence against them and fear that the international community will soon lose interest in Colombia once it is officially perceived ‘post-conflict.’

Irrespective of the attempts toward national peace, Colombian HRDs, such as lawyers or individuals focused on addressing political, civil, social or economic rights, are currently experiencing some of the most severe violence in the country’s civil war. Within the first six months of this year, 35 HRDs working to defend Colombia’s most vulnerable populations were murdered. The 2015 Annual Report of the UN Office of the High Commissioner for Human Rights in Colombia registered the murder of 63 HRDs – figures surpassing the national average of the last 20 years – and noted the near total impunity for these crimes. Most attacks and killings of HRDs target those working to obtain justice for human rights violations, as well as individuals addressing land conflicts and mining disputes, or peace activists within the social and political leadership of Colombia. As the work of these brave individuals represents a key pillar for democratisation and sustainable peace in the country, the latest development attests both a failure of the state to ensure that HRDs can conduct their legitimate work safely, and offers a deep insight into the nature of Colombia’s instability and future challenges.

It initially appears paradoxical to witness such a dramatic increase in violence against HRDs in a country vowing to end its civil war and moving toward reconciliation between its warring factions. However, United Nations toolkits and manuals for peacebuilding missions have long noted a frequent increase in human rights violations in post-conflict contexts as institutions and the rule of law remain in disarray. While these observations certainly hold true for Colombia, there are other worrying factors for local HRDs which are to some extend overlooked by international observers. According to the advocacy project ABColombia, it’s not necessarily the government or the Marxist FARC which are responsible for the majority of attacks and murders of HRDs but rather far-right post-demobilised paramilitary groups (PDPGs). These groups, which are often tied to the illicit drug trade in the country and target communities in areas of economic interest, are currently deemed responsible for 80 percent of all killings in the country, as well as for about two-thirds of all violence against HRDs. As PDPGs are neither adequately involved, nor sufficiently addressed in the ongoing peace negotiations, the key implication is that violence against HRDs will not end once the deal is signed and ratified. The biggest danger to the work and lives of HRDs will thus remain unaddressed.

The logical concern for HRDs is that once President Juan Manuel Santos and FARC-commander Timóleon Jiménez implement the new peace deal, which this time will only be voted on in Congress where Santos’ party holds a solid majority, the international community and important donors will lose sight of Colombia’s conflict and the fate of HRDs, falsely believing the country is now ‘post-conflict’. In turn, this outcome would directly translate into a worse security situation for HRDs and make it both significantly more difficult to draw attention to human rights violations and harder to attract international support and funding for their work. Susi Bascon, director at the UK-branch of Peace Brigades International, an NGO promoting the work of HRDs and offering protective accompaniment to them in Colombia, shares this worry and states it is now more important than ever to advocate on behalf of Colombian HRDs and publicise their continued persecution. The International Caravana of Jurists, another initiative in the United Kingdom which offers support to human rights lawyers in Colombia, equally calls for renewed vigilance and warns against simply ticking off Colombia from the global conflict checklist.

Colombia’s case of conflict resolution serves as a reminder to look beyond the often oversimplified explanations of civil conflict and human rights abuse. It is essential to understand the multiplicity and complexity of actors involved on the ground, their interests, and the implications of not addressing the concerns of certain groups during peace negotiation processes. Unfortunately, it can be expected that Colombian civilians and especially human rights defenders and the communities they work in will continue to face significant threats and violence even after a peace deal between the government and FARC has been accepted. While the deal is an important milestone for the country, international bodies and human rights advocates must not turn away from Colombia but rather continue to strengthen the human rights capacity of the Colombian state and promote the full demobilisation of all paramilitary groups.

Felix is a postgraduate in International Relations at King’s College London. He focuses on conflict resolution strategies, political violence, and human rights. Outside of academia, he is a Series Editor at Strife and advocates for human rights defenders across the world at Peace Brigades International. You can follow him @felix_manig

Image credit: https://blogs.state.gov/stories/2016/08/24/building-peace-colombian-peace-presents-new-us-business-opportunities

To kill or to capture? The conundrum facing the Supreme Court and military operations

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By: W. M. Hart

Provincial Reconstruction Team Farah Conducts Quality Assurance Visit to Farah Prison
A local boy watches an inspection at a new prison in Farah province, Afghanistan (ISAF photo/ USAF 1st Lt Mark Graff). Source: Flickr

On 4 February 2016, heads of state and international organisations gathered in Westminster to discuss aid to Syria. At the same time, a mere stone’s throw away in the Supreme Court, the UK Government was finishing its argument in a case which could have profound impact on the way the UK undertakes future military detention operations.

Mohammed and others v Ministry of Defence is one of a number of cases the UK has fought in domestic and European courts regarding the conduct of hostilities in Iraq and Afghanistan.[1] The case before the Supreme Court is of particular interest as it crystallises a number of key issues, not least whether the UK had a legal power to detain people in non-international armed conflict and whether that detention is regulated by international humanitarian law or by human rights law.

The case principally concerns Serdar Mohammed, who was detained by British forces in Afghanistan in April 2010. He was suspected of being a senior Taliban Commander in the area and forensic tests showed that he had indeed come into contact with explosive material used in making IEDs. Mohammed was held by the UK on grounds of ‘mission accomplishment’ for the 96 hours allowed under ISAF standard operating procedures; he then continued to be held longer for ‘logistical reasons’. The UK wanted to transfer Mohammed to the Afghan authorities but they had no room to take him, their detention facilities in Lashkar Gah already being full. The UK held Mohammed for a total of 110 days, using internal military protocols to review and authorise his continued detention. Mohammed challenged the legality of his detention, arguing the UK was mistaken in fact (he was a farmer, not a fighter); that the UK had no legal power to detain him; and that in doing so the UK had breached the European Convention on Human Rights, in particular Article 5, which protects the right to liberty and security of the person.

In May 2014, the High Court found that while Mohammed was a lawfully detained by the UK for 96 hours, the rest of his detention was unlawful.[2] Subsequently, the Court of Appeal found that the Security Council Resolutions which authorised detention applied to ISAF, not specifically the UK, and that there was no basis in English law for Mohammed’s continued detention beyond that authorised by ISAF.[3]

These conclusions pose particular challenges for future military operations in non-international armed conflicts. Simply put – and there are some fiendishly complex legal arguments cutting across these points – there are four main issues. First and foremost, what do UN Security Council Resolutions actually authorise? Second, does a UNSCR trump regional or domestic human rights obligations? Third, to whom do these authorisations apply? And fourth, what law regulates the procedural protections in place when a person is detained?

What do UN Security Council Resolutions actually authorise?

UNSCR 1386, which set up ISAF, authorised ‘Member States participating in the International Security Assistance Force to take all necessary measures to fulfil its mandate’. The Supreme Court has to consider whether the phrase ‘all necessary measures’ includes detention as well as the use of lethal force. The Government argue it must, a fortiori: if the resolution authorises the use of lethal force, it must, as a matter of humanity, authorise the lesser measure of detention. The question of whether that authority to detain extends only to those who would otherwise be legitimately targeted, or a wider group of people (which is contemplated in international humanitarian law), is up for debate. To the defence establishment in the UK this ‘kill or capture’ dilemma is an absurdity. The lawyers acting for the claimants reject that logic, arguing instead the issue isn’t one of practical context but legal validity, and the UK simply didn’t have a legal basis in place at the time of Mohammed’s detention.  A valid legal basis, they argue, could be a UNSCR which explicitly authorises internment – such as UNSCR 1546 for Iraq – or domestic legislation performing the same function as the U.S. Authorization for Use of Military Force.[4]

Does a UNSCR trump regional or domestic human rights obligations?

The relationship between the ECHR and UN Security Council resolutions has been broached – some might say sidestepped – before. In Al-Jedda, Strasbourg concluded that the Security Council resolutions authorising internment in Iraq did not conflict with any of the UK’s obligations under Article 5(1) of the ECHR, because the Security Council did not ‘intend to impose “any obligation’’ on member states to breach fundamental human rights’.[5] The preceding decision in the House of Lords disagreed, finding that Article 103 of the UN Charter created an obligation for the UK to detain and thus affected Article 5(1), but that the UK ‘must ensure that the detainee’s rights under Article 5 are not infringed to any greater extent than is inherent in such detention’.[6] The Ministry of Defence would prefer to follow the House of Lords and modify the content of Article 5. Whether Strasbourg or the Supreme Court is better placed to interpret the legal effect of Security Council Resolutions on the UK depends on one’s perspective of whether human rights law should be the dominant lens through which international legal obligations are viewed.

To whom do these authorisations apply?

The argument goes that if the UNSCR authorised ISAF to detain people, and the UK deviated from ISAF standard practice, the UK cannot subsequently claim that the UNSCR authorised it to detain. But as Aughey & Sari point out, the resolution authorises Member States and not ISAF itself. In addition, each nation in ISAF retained the discretion to apply national caveats depending on policy and legal obligations. If the court finds that either the ECHR trumps the UN Resolution in these circumstances, or that Article 5 governs the procedure for detention, the discretion the UK retains vis a vis coalition procedures could in future potentially be circumscribed by the ECHR.

Which brings us onto our last point; can international humanitarian law (IHL) guarantee a sufficient level of protection for the detainee’s due process rights in a non-international armed conflict (NIAC) as opposed to an international armed conflict (IAC)?

What law regulates the procedural protections in place when a person is detained?

The question of whether IHL, acting as lex specialis, can modify or displace Article 5 in an IAC was addressed by the European Court in Hassan.[7] In this decision – which is a critical part of the Government’s argument, and which wasn’t made at the time the Court of Appeal heard Mohammed – the ECtHR recognised that IHL is specially designed for armed conflict, and the Geneva Conventions have procedural protections designed for captured combatants and civilians. Unfortunately, treaty law covering IAC is far more extensive than for NIAC, which is reduced to relying on Common Article 3 of the Geneva Conventions, Additional Protocol II and customary international law.

The Government argued that IAC protections should apply to NIAC by analogy, and do in any event by custom. For example, the Iraq conflict went through various characterisations – international armed conflict, occupation, non-international armed conflict. Each of these classifications has different legal rules and to have different rules applying from one day to the next is logically and practically challenging, if not impossible. In addition, the mouth twisting phrase ‘internationalised non-international armed conflict’ is used to describe the situation in Afghanistan from 2001 onwards – regardless of whether it was officially a NIAC, the British experience in Helmand looked, sounded and felt very much like any other international conflict on the ground. However, if Article 5(1) was engaged, as Mohammed and others claim, their rights were infringed by the lack of due process afforded to them on detention. Even if applicable, neither CA3, APII or custom provided any procedural protections for detainees, but human rights law did and was not applied.

The way the Supreme Court reasons this issue will have implications for the structure of the detention operations and for the level of protections afforded to detainees in future. Will they, for example, have their detention approved by a military official, a military judge, or a civilian judge? How would the practicalities of such hearings be managed?

Serdar Mohammed shows us that the relationship between international humanitarian law and human rights law is not necessarily a bed of roses; at times it more closely resembles a nest of thorns. The case also raises many other questions; what locus do different courts have to decide how international law should be balanced and interpreted? How can IHL be applied by analogy to NIACs, despite clear reluctance of states in the treaty negotiation process to do so? Can human rights be divided and tailored, or derogated from in an implied manner by states? Is it possible to establish customary international law from practice in non-international armed conflicts?

The Supreme Court is in the unenviable position of having to decide a host of principles which will affect the scope and shape of future military detention operations. The UK Government has ruled out boots on the ground in Syria for now.[8]  But if it did deploy the armed forces, it would have to shape the jus ad bellum justification in the UNSCR, the rules of engagement and the process of detention operations in line with this, and other, legal precedents.

 

W. M. Hart is a doctoral candidate at the Department of War Studies, King’s College London, researching the effect of human rights litigation on military operations.

 

 

Notes:

[1] Mohammed and others (Respondents) v Ministry of Defence (Appellant), currently before the Supreme Court, Case ID: UKSC 2015/0218 is joined with Abd Ali Hameed Ali Al-Waheed v Ministry of Defence. Mr. Al-Waheed was detained by British forces in Iraq.

[2] Serdar Mohammed v Ministry of Defence [2014] EWHC 1369 (QB)

[3] Serdar Mohammed v Secretary of State for Defence [2015] EWCA Civ 843

[4] Authorization for Military Use of Force (AUMF), Pub. L. No. 107-40, 115 Stat. 224 (2001). See Curtis A. Bradley and Jack L. Goldsmith, ‘Congressional Authorization and the War on Terror’, Harvard Law Review, 118 (2005) 2047-2133

[5] Jelena Pejic, ‘The ECtHR’s Al-Jedda Judgment: Implications for IHL’, Yearbook of International Humanitarian Law, 14 (2011) 237-253

[6] R (on the application of Al-Jedda) v Secretary of State for Defence [2007] UKHL 58

[7] European Court of Human Rights, Case of Hassan V. The United Kingdom (Application no. 29750/09), 16 September 2014

[8] Reuters, ‘Cameron rules out British ground troops in case for Syria airstrikes’ (26 November 2015). Available at: https://www.rt.com/uk/323525-cameron-parliament-syria-airstrikes/ Accessed on: 8 February 2016

 

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