The interplay between international humanitarian law and human rights law when detaining in armed conflict
4. General Perspective on the Relationship between IHL and IHRL
Regarding the wider question of the interplay between IHRL and IHL, a participant said that she was coming round to the view that we should stop trying to fit IHL applicability to NIAC and resort instead to Human Rights Law. She then asked the panellists where we stand now regarding the relationship between IHL and IHRL.
A panellist replied it is crucial not to put this relationship into one box. This issue cannot be only academic. She explained that the entities that need to know about this have completely different perspectives. On the one hand, we have the military operational perspective – which was not used to applying human rights – and, on the other hand, we have the human rights
courts, whose perspective is: ‘To what extent are we required to take account of IHL to modify IHRL?’ The former perspective is based on the planning of the operation, whilst the latter in-tends to identify which elements need to be taken into account in order to establish whether there is a violation. These two areas are completely different. Moreover, it is of the utmost importance that each group remembers that the question is different for different players. The key players are not ministries of foreign affairs, not even the International Court of Justice, and certainly not academics. The real key players are human rights monitoring bodies and armed forces in the field. They must be the ones leading the way to finding how to accom-modate IHL and IHRL. Moreover, any solution has to be accepted by both groups. A solution which is not likely to be accepted by both groups is not going to work. She explained that human rights bodies have an obligation to take into account the fact that, for the person in the field, the rules guide a decision before the act is engaged in. It is not a means of deter-mining if there has been a violation. It is not certain that human rights bodies think in those terms, she concluded.
With respect to non-State armed groups (NSAGs), a panellist further noted that it is probably unrealistic to expect that States would recognise a right of NSAGs to detain. If that is the case, explained the panellist, it is may not be such a problem that there are also higher obli-gations under IHRL on the States than there are on the armed groups. In other words, States have that right to detain – maybe they need to adopt their legislation to use it – but, at the same time, they would be bound by higher standards. Whereas the armed groups would only be subject to IHL rules, would not be entitled to detain but would be subject to the minimum rules that would apply in that context.
Concluding Remarks
Yves Sandoz
Member of the International Committee of the Red Cross
Over the last two days, we have covered a single issue across a variety of legal and optional contexts. Detention, we have seen, is an ordinary and expected occurrence in armed conflict.
It is one that might be carried out by a variety of players and in a variety of circumstances.
As the contexts and players involved in detention shift, so does our degree of certainty about how international law protects these detainees.
We started with the greatest certainty: international armed conflict and the detention of pris-oners of war and civilians. We saw a robust and detailed IHL regime. It is one that – like any law – still requires interpretation and application to specific situations, but one that nonethe-less authoritatively guides detention operations.
We discussed treatment of these detainees, the conditions in which they must be held, the grounds on which they may be detained, and the procedural safeguards to which they are entitled. We discussed the timing and the circumstances of their release. In addition, we discussed the responsibility to ensure respect for IHL when transferring these detainees from one authority to another.
However, almost immediately, we moved into areas of less clarity and less certainty. As we shifted away from international armed conflict to non-international armed conflict, from State armed forces to non-State armed groups, and from purely internal NIAC detention to extrater-ritorial non-international armed conflict (NIAC) detention, the applicability of IHL and its bedrock principles remained unquestioned, but the clarity of the Geneva Conventions and their multitude of rules quickly faded away.
As the types of conflict changed, so did the legal regimes we relied upon. Human Rights Law and standards ensured that a large number of vulnerabilities faced by detainees were addressed, if only by soft law in some cases. However, in certain areas, particularly grounds and procedures for internment, the precise contours of the protections that should apply in NIAC remained unclear.
As our focus on the detaining authority shifted away from the State and towards the non-State armed group, we saw that the varying capabilities of these posed a challenge for articulating workable standards. We had to grapple with how potentially limited capabilities on the non-State side would be reconciled with the principle of equality of belligerents in IHL.
Finally, as the territory on which the armed conflict was taking place shifted away from the territory of the detaining State to the territory of a host State, questions arose as to the reach of International Human Rights Law and the source of the grounds and procedures for deten-tion, amongst others.
On Monday, the International Committee of the Red Cross (ICRC) will meet with States for three days to discuss many of the issues we have addressed today. What we know for certain, is that at the end of the meeting, the puzzle we have laid out here will not be solved. However, we will have moved forward in an effort to fill the protective gap left by these enduring debates.
As we go forward confronting these challenges and seeking to strengthen the legal protection of detainees in these different contexts and with respect to these different detaining authori-ties, it pays to keep in mind that for the detainee, whoever the player, whatever the territory, however the conflict is classified, the basic needs and vulnerabilities remain largely the same.
This law exists for them and they deserve our focused attention to strengthening the legal protection they enjoy.
J’aimerais ajouter quelques mots en français pour terminer.
Quand on travaille dans les domaines du droit international humanitaire et des droits de l’homme, on se sent parfois dans la peau de Don Quichotte, tant les problèmes auxquels on s’attaque paraissent insurmontables, et souvent dans celle de Sisyphe, car il faut sans cesse reprendre ce que l’on croyait acquis. Les défenseurs du droit international humanitaire et des droits de l’homme gravissent des montagnes dont ils savent qu’ils n’atteindront jamais le som-met, sachant par avance qu’ils ne pourront jamais s’estimer pleinement satisfaits.
C’est particulièrement vrai dans le domaine de la détention. Les besoins sont et resteront immenses, si divers que soient les raisons, les lieux et les responsables de la détention. Mais ce n’est pas l’immensité de la tâche qui doit nous décourager. En se concentrant sur la détention dans les conflits armés non internationaux, le projet en cours s’attaque à un problème concret, à une situation où des clarifications et des incitations sont nécessaires. Si modestes soient les résultats que l’on peut espérer des efforts actuellement entrepris, ceux-ci restent pleinement justifiés. Dans le domaine humanitaire, on n’avance que pas à pas et l’on ne saurait renoncer, en l’occurrence, à tout entreprendre pour améliorer tant soit peu l’existence des innombrables personnes qui sont détenues lors des conflits armés non internationaux, bien souvent dans des conditions très précaires, apportant aussi, ce faisant, un peu de soulagement à leurs familles.
Il reste à espérer que les gouvernements, en premier lieu, sauront répondre aux attentes pla-cées en eux.