Serdar Mohammed (Respondent) v Ministry of Defence (Appellant)

“The object of capture is to prevent the captured individual
from serving the enemy. He is disarmed and from then on must
be removed as completely as practicable from the front, treated
humanely, and in time exchanged, repatriated, or otherwise
released.”
16. Second, if there is nevertheless an insufficient consensus among states upon
the legal right of participants in armed conflicts to detain under customary
international law, it is not because of differences about the existence of a right of
detention in principle. At their most recent international conference (Geneva, 8-10
December 2015), the constituent associations of the Red Cross and Red Crescent
approved a resolution by consensus which recited that states had the power to detain
“in all forms of armed conflict” and proposing measures to strengthen the
humanitarian protection available to detainees. The lack of international consensus
really reflects differences among states about the appropriate limits of the right of
detention, the conditions of its exercise and the extent to which special provision
should be made for non-state actors. There is no doubt that practice in international
and non-international armed conflicts is converging, and it is likely that this will
eventually be reflected in opinio juris. It is, however, clear from the materials before
us that a significant number of states participating in non-international armed
conflicts, including the United Kingdom, do not yet regard detention as being
authorised in such conflicts by customary international law.
17. Third, if there were a right of detention on whatever legal basis, there are
various conditions which might be imposed for its exercise. But if the right were to
have any reality, it would at least have to apply in a case where detention was
“necessary for imperative reasons of security”, the test which article 78 of the Fourth
Geneva Convention (1949) applies to the right of an Occupying Power to detain
civilians. This is the narrowest available test, and the one which has been proposed
by the International Committee of the Red Cross. On these appeals, the Secretary of
State does not contend for anything less.
The Security Council Resolutions
18. It is convenient to start with the position in Iraq.
19. At the time of Mr Al-Waheed’s detention, the relevant Security Council
Resolution was 1723 (2006). This extended the authority conferred by Resolution
1546 (2004), which had marked the point at which Britain ceased to be an occupying
power in Iraq and became a mandatory power acting in support of the newly formed
indigenous government of Iraq. Articles 9 and 10 of Resolution 1546 (2004)
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