Book Chapter
Reference
Legal Framework for Detention by States in Non-International Armed Conflict
SASSÒLI, Marco
SASSÒLI, Marco. Legal Framework for Detention by States in Non-International Armed Conflict.
In: Kolanowski, Stéphane. Proceedings of the Bruges Colloquium, Detention in Armed Conflicts, 16-17 October 2014 . Bruges, Geneva : College of Europe, CICR, 2015. p. 51-65
Available at:
http://archive-ouverte.unige.ch/unige:77195
Disclaimer: layout of this document may differ from the published version.
Session 2
Deprivation of Liberty in Non-International Armed Conflict
Chairperson: Knut Dörmann, ICRC Legal Division
LEGAL FRAMEWORK FOR DETENTION BY STATES IN NON-INTERNATIONAL ARMED CONFLICT
Marco Sassòli1 University of Geneva
Résumé
Cette contribution étudie dans quelle mesure les Etats peuvent et doivent respecter le droit international humanitaire (DIH) et le droit international des droits de l’homme (DIDH) lorsqu’ils détiennent des membres d’acteurs non étatiques dans le cadre d’un conflit armé non interna- tional (CANI).
Toute personne détenue tombe par définition dans la catégorie des personnes qui ne participent pas directement aux hostilités et qui, selon l’article 3 commun aux Conventions de Genève de 1949 (CG), doivent être traitées avec humanité et ne pourront faire l’objet, entre autres, de torture, de traitements inhumains ou dégradants, de mutilations, ni être pris en otages. La même disposition prévoit un droit pour ces personnes d’être recueillies et soignées, ainsi que de recevoir les visites du CICR. L’article 4 du Protocole additionnel II (PA II) aux CGs, qui s’applique à un nombre plus limité de CANIs, ajoute aux actes prohibés par l’article 3 commun les punitions collectives et le pillage (des effets personnels des détenus). Plus détaillé encore, l’article 5 du PA II contient des garanties liées, entre autres, à la nourriture, à l’eau potable, à l’hygiène, aux secours individuels et collectifs, devant être reconnues à toute personne privée de liberté pour des motifs en relation avec le conflit armé, qu’elle soit internée ou détenue. Dans le cadre du projet sur le renforcement de la protection juridique des détenus en CANI, le CICR a ouvert un débat avec les Etats afin de compléter la notion de traitement humain, incluant notamment des garanties issues du DIDH. L’article 3 commun contient par ailleurs des garanties procédurales concernant, entre autres, la composition de l’organe qui jugerait les personnes détenues. Sur ce point, l’article 6 du PA II est plus détaillé, stipulant par exemple que toute condamnation 1 Director of the Department of Public International Law and International Organization at the Univer-
sity of Geneva.
ne pourra être prononcée qu’après qu’un « tribunal offrant des garanties essentielles d’indépen- dance et d’impartialité » ait statué.
Le DIH conventionnel ne règle toutefois pas la question des raisons, des motifs et de la procédure selon lesquels des personnes peuvent être détenues en l’absence de poursuites judiciaires dans le cadre d’un CANI. Le CICR soutient que les standards minimums de DIH pourraient être complétés grâce à divers instruments ou décisions issus du DIDH. Ainsi, la détention devrait par conséquent constituer une mesure exceptionnelle, ne jamais servir d’alternative à des poursuites judiciaires, être ordonnée sur base individuelle, cesser aussitôt que les raisons de sécurité ne le justifient plus, et être conforme au principe de légalité.
L’absence, dans le DIH des CANIs, de raisons admissibles pour la détention ainsi que de l’exigence que ces raisons soient prévues en droit interne n’autorise néanmoins pas, selon l’étude du CICR sur le DIH coutumier, les privations arbitraires de liberté. Seul l’article 5 de la Convention euro- péenne des droits de l’homme (CEDH) énumère de manière exhaustive les cas dans lesquels une personne peut être privée de liberté. Mais la Cour européenne des droits de l’homme a récemment jugé qu’en CAI, la CEDH pouvait être interprétée en ce sens qu’elle permet à un Etat d’interner des prisonniers de guerre ou des civils sur base de l’article 5, pour autant que cet Etat invoque expressément le DIH comme base de cette détention (Hassan c. Royaume-Uni, paragraphes 101-103). Plusieurs juridictions ont répondu de manière contradictoire à la question de savoir si le DIH des CANIs pouvait, en pareille situation, servir de base à la détention de membres d’un groupe armé. Selon moi, la base légale permettant à un Etat de détenir des membres d’un groupe armé non étatique fait défaut en DIH conventionnel et coutumier.
S’agissant des garanties procédurales applicables aux personnes détenues sans procès préalable, d’aucuns procèdent par analogie avec le DIH applicable aux situations de CAI afin de combler les carences inhérentes aux CANIs et au régime juridique qui leur est applicable. Si cette théorie présente certains avantages, elle soulève également son lot de problèmes d’ordre pratique et procédural. Et le DIDH contient quant à lui de nombreuses garanties procédurales en cas d’inter- nement (information quant aux raisons de l’internement, accès à un organe judiciaire, droit à l’assistance juridique, etc). En outre, le droit à la liberté individuelle est, en tant que tel, déro- geable en cas de situation menaçant la vie de la nation. Toutefois, plusieurs organes de droits de l’homme ont pris des décisions renforçant le caractère indérogeable du droit au recours judiciaire en cas de privation de liberté. En DIDH coutumier, il est clair que le droit d’accès à la procédure d’habeas corpus est indérogeable. En situation de CAI, la Cour de Strasbourg a, dans l’Affaire Hassan, jugé que l’examen des conditions de la détention par un organisme compétent suffit à rencontrer les exigences de l’article 5 de la CEDH, si cet examen ne peut être réalisé par un tribu- nal indépendant. Le CICR a pour sa part également énoncé une série de garanties procédurales
qui doivent être respectées afin de sauvegarder les droits des personnes détenues administra- tivement. Ces garanties sont très similaires à celles prévues par la CG IV et applicables en cas d’internement des civils pour raisons de sécurité. Ici encore, il est cependant difficile d’appliquer par analogie aux membres de groupes armés détenus en situation de CANI, le régime juridique applicable aux civils internés. Pour faire l’objet d’une « accommodation » en temps de guerre, les instruments de DIDH devront cependant se fonder sur un régime procédural de DIH contraignant.
Enfin, l’application du DIDH en tant que lex specialis peut être problématique à plusieurs égards dans le cadre d’un CANI. Il n’est d’abord pas certain que les Etats, en internant des milliers de personnes, pourront respecter les garanties procédurales imposées par le DIDH (notamment celles d’amener les personnes qui le réclament devant une juridiction dans un délai raisonnable).
Face à un tel dilemme, une issue à envisager serait de revoir à la baisse les exigences posées par la procédure d’habeas corpus concernant les personnes arrêtées au cours des hostilités.
I. Introduction
While I most often focus on the perspective of armed groups and the difficulties they have in adhering International Humanitarian Law (IHL) in non-international armed conflicts (NI- ACs), this contribution discusses how States can and must comply with IHL and International Human Rights Law (IHRL) when detaining persons, in particular rebel fighters, in a NIAC. I will shortly deal with what is clearly regulated by IHL treaties (and which is probably most important from a humanitarian point of view), i.e. their (humane) treatment and judicial guar- antees, and then focus in more detail on what is not regulated in IHL treaties (nor in my view in customary law), i.e. on what basis, for what reasons and following what procedure such persons may be detained. In doing both, the increasing relevance of IHRL will be highlighted.
II. Treaty Law on Treatment of Persons
Common Article 3 to the four Geneva Conventions prescribes that those who do not or no longer directly participate in hostilities, ‘including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction’.
All persons detained (in relation with the conflict) by definition fall under this category. The article then adds some details by prohibiting summary executions, torture, cruel treatment, outrages upon personal dignity, in particular humiliating and degrading treatment, and the taking of hostages. It furthermore prescribes that the wounded and sick must be cared for and provides for a right of the International Committee of the Red Cross (ICRC) and other impartial humanitarian bodies to offer their services, inter alia to visit such detainees.
Additional Protocol II (AP II) expands upon common Article 3. It should first be noted that AP II applies to a much narrower set of NIACs than common Article 3.2 The first provision of direct relevance for treatment of detainees in AP II is Article 4, which bears the title ‘Fundamental Guarantees’, showing the influence of IHRL and the interplay between the two regimes. It contains in paragraph 2 a non-exhaustive list of prohibited acts, which adds to those already outlawed in common Article 3: collective punishment and pillage (of personal belongings of detainees). Paragraph 3 contains provisions specific to treatment of children, including any that have been detained, requiring that such children receive an education, and requiring reunifica- tion with family members. The most detailed and only specific provision on the treatment of detainees in AP II is its Article 5. It applies to persons whose liberty has been restricted for reasons related to the armed conflict, and outlines certain aspects of treatment that such per- sons are to be accorded, in addition to those already stipulated in Article 4 and common Article 3. These include provision of food and drinking water, safeguards as regards health and hygiene, a right of detainees to receive collective and individual relief, to practice their religion, and a right to appropriate working conditions. The second paragraph of Article 5 requires detaining authorities, but only ‘within the limits of their capabilities’, to separately detain men and wom- en, except where members of the same family are accommodated together, to allow detainees to correspond with their families, and to locate detention facilities such that detainees are not exposed to the dangers arising out of the armed conflict. The detaining authorities must equally allow detainees the benefit of medical examinations. In the current initiative of the ICRC on strengthening legal protection of detainees in non-international armed conflicts,3 under a mandate received from the International Conference of the Red Cross and the Red Crescent, the ICRC discusses with States the possibility to add further details on what humane treatment implies and to set out rules specific to some vulnerable groups. ICRC lawyers also consider that additional guarantees for persons detained in NIACs may already now be drawn from IHRL and by analogy from the Geneva Conventions (GC) (presumably from the very detailed rules of GC IV on the treatment of civil internees in Articles 79-135 of that Convention).4
III. Judicial Guarantees
Common Article 3 does not protect persons falling within its ambit from prosecution, nor does it prescribe that only persons waiting for trial or sentenced may be detained. Sub-paragraph (d) simply prohibits executions without previous trial and prescribes that if a person is tried,
2 See Article 1(1), Additional Protocol II.
3 See International Committee of the Red Cross (ICRC), Detention in non-international armed conflict: The ICRC’s work on strengthening legal protection, available at: :<https://www.icrc.org/eng/what-we-do/
other-activities/development-ihl/strengthening-legal-protection-ihl-detention.htm>
4 Jelena Pejic, “The protective scope of Common Article 3: more than meets the eye”, 93 in: Interna- tional Review of the Red Cross 189 (2011), pp. 215-219.
this must happen before a regularly constituted court and that the trial must adhere to all the judicial guarantees which are recognised as indispensable by civilised peoples. In my view, this must today be understood as a reference to IHRL, in which those guarantees are detailed and which constitutes the lex specialis in this respect (contrary to what is the case under IHRL, under common Article 3, those guarantees may obviously not be derogated from in a NIAC, as the provision has been made for precisely such a situation). Others rather point to alleged separate customary IHL judicial guarantees. Both approaches lead to the same results. As for the substantive law that is applicable, it is domestic criminal law.
In this respect too, Additional Protocol II explicitly adds much more detail in its Article 6. The trial must be conducted before a ‘court offering the essential guarantees of independence and impartiality’ (which is easier for armed groups to comply with than the requirement of Article 3 common that the court must be ‘regularly constituted’, which implies that it must be es- tablished by law, which armed groups have practical and conceptual difficulties in adopting).
Specific guarantees mentioned in Article 6 are the presumption of innocence, the right to be informed on the nature and cause of the charge, the necessity to provide means of defence, individual criminal responsibility, the right to be present at the trial, the prohibition of the requirement to testify against oneself, the right to be advised on the possibility of an appeal, and limits to the death penalty. The principle of legality (nullum crimen sine lege) is equally mentioned (and it refers again to domestic criminal law).
Finally, the only, very limited, surrogate to any kind of combatant immunity, laid down in IHL of IACs, for those who have participated in hostilities in a NIAC (without violating IHL), is an encouragement of amnesty at the end of the conflict.5 Although an amnesty conceptually pre- supposes a crime, a charge or a sentence, this and only this aspect of Article 6 equally covers administrative detainees, as internment is specifically mentioned in the provision. In the case of internees without trial, the encouragement of amnesty simply means a recommendation of immediate release.
IV. Admissibility of Detention of Fighters without Trial and Applicable Supervisory Procedures
What is not regulated in existing IHL treaty law is the reasons, the basis and the procedure ac- cording to which persons may be detained without trial in a NIAC. Those interrelated questions are obviously particularly relevant for fighters, i.e. members of an armed group. By analogy to what the ICRC suggests in relation to the distinct question of when a person may be targeted
5 Article 6(5), Additional Protocol II.
in a NIAC,6 one could limit this concept of fighters to persons having a continuous fighting function in an armed group. It is in particular with regard to fighters that some States and authors want to apply by analogy the regime applicable to prisoners of war (POWs) provided for in GC III (without giving them the corresponding rights, as they are in NIACs by definition
‘unprivileged’). Others suggest applying by analogy the regime laid down in GC IV for civil internees, while still others want to apply, in the absence of IHL rules, IHRL, either as lex generalis, or, as I would suggest, as lex specialis on the issues discussed in this section. The ICRC has adopted an institutional position, of which it does not claim that it corresponds to existing legal obligations, but refers to it as a legal and policy framework, without clarifying what is law and what is policy.7 Simultaneously, the ICRC discusses those questions with States in its above-mentioned initiative on strengthening the legal protection of detainees in NIACs.
1. Treaty and customary IHL of NIACs does not provide a clear answer
The IHL of NIACs simply makes reference to the seeming inevitability of internment and deten- tion by all sides participating in the conflict,8 but I do not think that this can be seen as a le- gal basis (and even less as an indication of the admissible reasons and procedure required) for internment. Customary law is not very helpful in finding an answer. The ICRC Customary Law Study simply considers (mainly based upon the practice of human rights bodies) that there is (both in IACs and NIACs) a customary IHL prohibition of arbitrary detention. In interpreting this prohibition, the Study states that the basis for internment must be previously established by law and restates an ‘obligation to provide a person deprived of liberty with an opportunity to challenge the lawfulness of detention’.9
6 Nils Melzer, Interpretive Guidance on the notion of direct participation in hostilities under International Humanitarian Law, Geneva, ICRC, 2009, pp. 32-36, available at: <https://www.icrc.org/eng/assets/
files/other/icrc-002-0990.pdf>.
7 Jelena Pejic, “Procedural Principles and Safeguards for Internment/Administrative Detention in Armed Conflict and Other Situations of Violence”, 87 in: International Review of the Red Cross 375 (2005), at 377-391. The journal article makes a disclaimer in footnote that ‘[t]he views expressed in this article reflect the author’s opinions and not necessarily those of the ICRC’, which is misleading, given that in 2005 the ICRC adopted an institutional position entitled “Procedural Principles and Safeguards for In- ternment/Administrative Detention in Armed Conflict and Other Situations of Violence”. This document (…) was annexed to the ICRC’s report on IHL and the Challenges of Contemporary Armed Conflicts presented to the 2007 International Conference. (ICRC Conference Document 31IC/11/5.1.2, p. 18 available at: <http://www.icrc.org/eng/assets/files/red-cross-crescent-movement/31st-international- conference/31-int-conference-ihl-challenges-report-11-5-1-2-en.pdf>).
8 Articles 5 and 6, Additional Protocol II.
9 Jean-Marie Henckearts and Louise Doswald-Beck (eds.), Customary International Humanitarian Law, Cambridge: Cambridge University Press (2005), pp. 348-351.
2. The ICRC institutional position
For the ICRC, depriving persons of their liberty for security reasons (distinguished from de- tention with a view to prosecution/trial, and the separate regime of internment of prisoners of war in IACs) during the course of an armed conflict is an exceptional measure of control.
that is taken in both IACs and NIACs, at the initiation of the executive, rather than a judicial, branch of government.10 However, the ICRC holds that ‘although this type of deprivation of liberty is often practised in both international and non-international armed conflicts and other situations of violence, the protection of the rights of the persons affected by it is in- sufficiently elaborated.’11 Given that, in situations of armed conflict, IHL and IHRL operate concurrently, the ICRC considers that it is possible to envisage filling some of those procedural gaps in IHL by reference to IHRL treaties, instruments of soft law and jurisprudence, which may supplement the minimum standards found in IHL.12 The following general principles are then applicable to internment/administrative detention: a) it must be considered an excep- tional measure, b) it may never serve as an alternative to criminal proceedings, c) it can only be ordered on an individual, case-by-case basis, and must not be taken on a discriminatory basis (mass internment would amount to collective punishment), d) administrative detention must cease as soon as the security reasons leading to the detention cease to exist and finally, e) administrative detention must conform to the principle of legality.
We can only hope that the ICRC succeeds in having this framework accepted by States in the current process, mentioned above and aimed at strengthening IHL on detention in NIACs.
Current reports indicate however that States will not accept it as binding IHL.13 If it remains a
‘policy framework’ suggested by the ICRC, or becomes part of ‘guidelines’ reflecting discussion with States, one cannot imagine that human rights supervisory bodies will, as the European Court of Human Rights (ECtHR) has recently done in respect of the treaty rules of IHL of IACs,14
“accommodate” their interpretation of human rights requirements to such very “soft” IHL, or even recognise that such rules constitute, as I would suggest, a lex specialis.
10 Pejic, “Procedural principles and Safeguards for Internment/Administrative Detention in Armed Con- flict and Other Situations of Violence”, op. cit. p. 375.
11 Ibid., p. 376 12 Ibid., p. 379
13 See ICRC, Strengthening International Humanitarian Law Protecting Persons Deprived of their Liberty, Synthesis Report from Regional Consultations of Government Experts, Geneva, ICRC, 2013, pp. 30-31, available at: <https://www.icrc.org/eng/assets/files/2013/strengthening-protection-detention-con- sultations-synthesis-2013-icrc.pdf>.
14 European Court of Human Rights (ECtHR), Hassan v. the United Kingdom, [2014] ECHR 29750/09, in particular paragraphs 104-106.
3. Admissible reasons for detention
IHL was traditionally seen as a branch prohibiting and prescribing certain conduct for the benefit of persons affected by armed conflicts. If IHL of NIACs did not list admissible reasons for detention, nor a requirement that domestic law envisages such reasons, this could be seen as implying, from a purely IHL point of view, that States were free on those matters.
Admittedly, according to the ICRC Study, customary IHL prohibits the arbitrary deprivation of liberty in both international and non-international armed conflicts.15 This rule is however interpreted through significant reference to IHRL (practice) and it is only on that basis that the Study states that the basis for internment must be previously established by law.16 There- fore, it is only because of IHRL that a discussion about admissible reasons of detention in NIACs has arisen. Indeed, under IHRL, any detention requires the existence of a legal basis established in domestic law. A person may only be deprived of liberty ‘on such grounds and in accordance with such procedure as are established by law’.17 On the distinct question of the reasons for which domestic law may authorise detention, most universal and regional general IHRL treaties prohibit arbitrary arrest or detention.18 Only Article 5 of the ECHR specifically and exhaustively enumerates the admissible reasons for depriving a person of his/her liberty.
Administrative detention is not listed among those reasons and is inadmissible under that pro- vision of the ECHR,19 except if instituted to prevent an individual from committing a concrete and specific offence.20 The European Court of Human Rights has however recently found that State practice, in conformity with which the ECHR has to be interpreted, shows that in cases of international armed conflict, a State need not even to proceed to a derogation (under Article 15 of the ECHR) to allow the Court to “accommodate” the exhaustive list of admissible reasons of detention contained in Article 5 of the ECHR with IHL of international armed conflicts al- lowing the internment of POWs and, for imperative security reasons and subject to procedural guarantees prescribed in GC IV, civil internees.21 As for the International Covenant on Civil and Political Rights (ICCPR), the Human Rights Committee underlines that ‘[t]he drafting history (…) confirms that “arbitrariness”, is not [simply] to be equated with ‘against the law’, but
15 Henckaerts and Doswald-Beck, op. cit., pp. 344-352.
16 Ibid., pp. 348-351.
17 Article 9, paragraph 1, International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR). See also Article 5(1) Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR), Article 7, American Convention on Human Rights (adopted 21 November 1969, entered into force 18 July 1978) 1144 UNTS 123 (ACHR), and Article 6, African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) 1520 UNTS 217 (ACHPR).
18 Article 9, paragraph 1 ICCPR, Article 7, paragraph 3 ACHR, and Article 6 ACHPR.
19 Hassan v. UK, op. cit., paragraph 97.
20 See ECtHR, Guzzardi v. Italy, (1981) 3 EHRR 333, paragraph 102.
21 Hassan v. UK, op. cit. paragraphs 101-103.
must be interpreted more broadly to include inappropriateness, injustice, lack of predictability and due process of law’.22 The arrest and detention must be reasonable and necessary.23
At least under IHRL, the question arises as to whether IHL of NIACs provides for such a legal basis for detaining insurgents. A lower court in the United Kingdom (UK) has forcefully and with detailed arguments denied that IHL of NIACs provides a legal basis for detaining enemy fighters.24 Many, including the United States (US), however answer affirmatively. This position is bolstered by the implicit or explicit reliance on the part of the US (and many others) on the application by analogy of IHL of IACs to NIACs. Even in the ICRC’s view, ‘both treaty and customary IHL contain an inherent power to intern and may thus be said to provide a legal basis for internment in NIAC.’ However, the ICRC adds, ‘a valid domestic and/or international legal source (depending on the type of NIAC involved), setting out the grounds and process for internment, must exist or be adopted in order to satisfy the principle of legality.’25
In favour of the position that IHL provides a legal basis for detaining fighters, one may men- tion that GC III (particularly its Article 21) is generally considered as containing a sufficient legal basis for interning POWs. No State provides, in its domestic legislation, a separate legal basis for the internment of POWs. The (then) European Commission on Human Rights did not deem it necessary to assess whether the detention of Cypriot POWs by Turkey was a violation of Article 5 of the ECHR,26 even though detention of POWs does not appear in the exhaus- tive list of admissible reasons for detention laid down in that provision. Many argue that GC IV provides a sufficient legal basis for interning protected civilians for imperative security reasons.27 However, as its Article 78 requires that ‘[d]ecisions regarding such (…) internment shall be made according to a regular procedure to be prescribed by the Occupying Power’, this can also be read to imply that the occupying power must legislate, and thereby establish in its domestic law a clear legal basis for the operation of Article 78, and associated rules.
22 UN Human Rights Committee, Mukong v. Cameroon (Comm. no. No. 458/1991) (1994), 5 Selected Deci- sions of the Human Rights Committee 86.
23 UN Human Rights Committee, H van Alphen .v the Netherlands (Comm. no. 305/1988) (1990) UN Doc.
A/45/40 (vol II), 108, at 115, paragraph 5.8 and UN Human Rights Committee, Spakmo v. Norway (Comm. no. 631/1995) (1999) UN Doc. A/55/40 (vol II), 22, at 26, paragraph 6.3. See also UN Human Rights Committee, General Comment No. 8: Article 9 (Right to liberty and security of persons) (1982) in: ‘Note by the Secretariat, Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies’ (2004) UN Doc. HRI/GEN/1/Rev.7, p. 130, paragraphs 1 and 4.
24 See High Court of Justice Queen’s Bench Division, Serdar Mohammed v. Ministry of Defence, [2014]
EWHC 1369 (QB).
25 Pejic, “The protective scope of Common Article 3: more than meets the eye”, op. cit. p. 207.
26 The European Commission of Human Rights, Cyprus v. Turkey, (1976) 4, at 532-533, paragraph 313.
27 Hassan v. UK, op. cit., paragraphs 104 and 105.
As for the US, the Obama administration considers that in the armed conflict against Al-Qaeda, the Taliban and ‘associated forces’, those who provide substantial support to the enemy may be detained like prisoners of war in an international armed conflict, for the entire duration of the conflict,28 and it is only for policy reasons that the US chooses to hold them no longer than necessary and has instituted a periodic review of the necessity to continue their internment.29 It adds that under the logic of IHL those who may be targeted (and at the least members of an armed group with a continuous fighting function may be targeted at any time) may also, as a lesser evil, be targeted and detained. In my view, this is correct, but it does not exclude the fact that grounds, and a procedure justifying such detention must nevertheless be prescribed.
It is interesting to note, that during the regional consultations held by the ICRC within the framework of its initiative to strengthen the legal protection of detainees in NIACs, it was only in the European consultation (which also included governmental experts from the US, Israel and Canada) that several States insisted on a status-based approach to the admissibility of internment in NIACs, which would make members of an armed group detainable without any further reason.30 In my view, an alleged legal basis sufficient to allow a State to detain enemy fighters without any need of further legislation cannot be found in IHL treaty law. As for the allegation that it is provided by customary law, the number of States confronted by NIACs that have adopted specific legislation authorising detention of fighters shows that no general prac- tice and opinio juris exists according to which IHL alone would provide a sufficient legal basis.
4. Procedural guarantees for those detained without trial
As for the procedural guarantees from which those to be interned must benefit, some argue that in law there are none, by analogy to the lack of procedural guarantees for POWs that a de- taining power wants to intern. Others draw an analogy with the guarantees contained in GC IV in the case of administrative detention of civil internees, while still others require compliance with human rights guarantees, which include a right to initiate habeas corpus proceedings.
Those who want to proceed by analogy have difficulties in explaining how such guarantees constructed - and sometimes enriched - by analogy can prevail over the black letter guarantees prescribed in IHRL.
28 See US District Court for the District of Columbia, in: Re: Guantánamo Bay Detainee Litigation, Respond- ents’ Memorandum Regarding the Government’s Authority Relative to Detainees Held at Guantánamo Bay, Misc. No. 08-442 TFH (2009), available at: <http://www.usdoj.gov/opa/documents/memo-re-det- auth.pdf>.
29 UN Human Rights Committee, Replies of the United States of America to the list of issues (13 September 2013), UN Doc. CCPR/C/USA/Q/4/Add.1, paragraph 89.
30 ICRC, Regional Consultation of Government Experts, Strengthening International Humanitarian Law Protecting Persons Deprived of their Liberty, Montreux, Switzerland, 10-11 December 2012, Geneva, ICRC, pp. 16-19, available at: <https://www.icrc.org/eng/assets/files/2013/strengthening-protection- detention-consultations-montreux-2012-icrc.pdf>.
Arguments in favour and against an application of IHL of international armed conflicts by analogy
The approach of referring – in NIACs – to rules of IAC reflects the general tendency to bring the law of non-international armed conflicts closer to that of international armed conflicts.
This has both positive and challenging aspects. On the one hand, we have the positive side effect of rendering moot controversies on whether a given conflict is international or non- international and which law to apply in conflicts of a mixed nature. There is, in addition, no real difference between a non-international armed conflict such as that between Sri Lankan government forces and the Liberation Tigers of Tamil Eelam (LTTE) in northern Sri Lanka in 2008 and the international armed conflict between Eritrea and Ethiopia in 1999. In favour of application of the rules on POWs by analogy, it must be mentioned that Article 3 of GC III encourages parties to NIACs ‘to bring into force by special agreements, all or part of the other provisions of the present Convention.’ If the parties so agree, they could therefore apply the rules of GC III to fighters, which do not require any individual procedure to decide upon the internment. At least in 1949, when this provision was adopted, States apparently considered that the application of POW status was not detrimental to fighters since spe- cial agreements to the detriment of war victims would be void under IHL.31 Even without an agreement, a government could obtain the same result, i.e. POW status of fighters, by resuscitating the concept of recognition of the belligerency of an armed group which has fallen into disuse.32
On the other hand, strong arguments call into question the appropriateness of applying in NIACs the same rules as in IACs. There are fundamental differences between both types of conflicts that may prevent the application of rules by analogy from producing a useful result.
Many non-international armed conflicts are fought against or between groups that are not well-structured. It is much more difficult to determine, for the purposes of interning fighters, which persons belong/do not belong to an armed group than it is to determine who belongs to governmental armed forces. Positive IHL of NIACs does not even prescribe explicitly, as the law of IACs does, that fighters must distinguish themselves from the civilian population.
Joining and leaving an armed group is a comparatively informal undertaking, while members of governmental armed forces are incorporated and formally dismissed. As armed groups are inevitably illegal, members do their best not to be identified as such. Upon arrest it is more difficult to identify rebel fighters than it is to identify soldiers of the armed forces of another State. The correct classification can be made by a tribunal. However, a tribunal will only have its say if the arrested person is not classified by analogy as a POW, because POWs do not have to be classified as such by a tribunal if the detaining power is ready to treat them as 31 Article 6, Geneva Convention III.
32 Henckaerts and Doswald-Beck, op. cit., p. 352.
POWs.33 Second, while in international armed conflicts, POWs must be released and repatri- ated at the end of active hostilities,34 that moment in time is more difficult to determine in a non-international armed conflict, and repatriation is logically impossible in the classic non-international armed conflicts limited to the territory of one State. Even when the end of active hostilities is determined, no obligation for a government to release rebels at that moment exists in IHL.35
The regulation by IHRL
Anyone interned must be informed, at the time of arrest36 or promptly thereafter37, of the reasons for his or her internment. In addition, an arrested person has a right to start proceedings before a court, in order that the court may decide without delay on the lawful- ness of the detention (and order release if the detention is not lawful).38 The court does not necessarily have to be a fully independent and impartial tribunal capable of trying a person, but it must have a judicial character and it may only make decisions after judicial, adversarial proceedings that provide the individual guarantees appropriate to the reasons of the internment in question. Such guarantees include a right to legal assistance if the remedy cannot be exercised effectively otherwise. The court must come to a decision within a period that is not specified in the practice of treaty bodies and which depends on the circumstances of each case. However, the procedure must begin within a few days after the request for review is made.
As such, the right to personal freedom is subject to possible derogations in the case of a situation threatening the life of the nation. Under the American Convention on Human Rights (ACHR) however, judicial guarantees essential for the protection of non-derogable rights may not be subject to derogations. The Inter-American Court of Human Rights has therefore found that the access to habeas corpus and amparo proceedings are non-derogable rights.39 Simi- larly, the Human Rights Committee considers that the right to have any arrest controlled by a judicial body may never be derogated from because it constitutes a necessary mechanism of enforcement for non-derogable rights such as the prohibition of inhumane and degrading
33 Article 5 of Geneva Convention III prescribes status determination tribunals only for persons a detain- ing power wants to deny POW status.
34 Article 118, Geneva Convention III.
35 Article 6(5) Additional Protocol II simply encourages the widest possible amnesty.
36 Article 9(2) ICCPR.
37 Article 5(2) ECHR and Article 7(4) ACHR.
38 Article 9(4) ICCPR, Article 5(4) ECHR, Article 7(6) ACHR and, arguably, Article 7(1)(a) ACHPR.
39 Inter-American Court of Human Rights, Habeas Corpus in Emergency Situations (Arts. 27(2), 25(1) and 7(6) of the American Convention on Human Rights, Advisory Opinion OC-8/87 of January 30, 1987.
Series A, No. 8.
treatment and the right to life.40 The ECtHR accepted in the past that certain violations of the right to a judicial remedy provided for in Article 5(4) ECHR were covered by the right to dero- gation under Article 15 ECHR.41 The Court would however not necessarily decide so today, as international practice has in the meantime developed towards recognising the non-derogable nature of habeas corpus. As a possible first step in this direction, the Court held that a period of fourteen days before being brought before a judicial authority, together with lack of access to a lawyer and of possibility to communicate with family and friends, was contrary to the Convention despite a derogation by the State concerned.42 As for customary IHRL, it is widely claimed that the right to habeas corpus is non-derogable.43 Although not based upon IHRL, for the detainees held by the US in the ‘war on terror’ in Guantánamo, access to habeas corpus proceedings was granted by the US Supreme Court in 2004,44 was eliminated again by Congress in 2006 and then imposed again by the US Supreme Court on constitutional grounds in 2008.45
The ECtHR has accepted that it might not be practicable in an IAC for the legality of detention to be determined by a ‘court’; a ‘competent body’ as required by Convention IV may be suf- ficient under the ECHR, ‘if it provides sufficient guarantees of impartiality and fair procedure to protect against arbitrariness’.46 The Inter-American Commission on Human Rights also came to the conclusion, in the case of an IAC, that a ‘quasi-judicial body’ is sufficient.47 Until now, no such position has been adopted by human rights bodies concerning NIACs, and in my view it is unlikely that they will do so, as no hard law provision in this respect exists in IHL.
The institutional position of the ICRC
In its institutional position, the ICRC also requires that certain procedural safeguards be in place for administrative detention so as to not violate the rights of persons detained. Detain- ees must
40 See UN Human Rights Committee, General Comment 29: Article 4: Derogations during a state of emergency (2001) in: “Note by the Secretariat, Compilation of General Comments and General Recom- mendations adopted by Human Rights Treaty Bodies”, op. cit., p. 184, paragraph 16.
41 ECtHR, Ireland v. United Kingdom, [1978] ECHR 1, paragraphs 202-224.
42 ECtHR, Aksoy v. Turkey, [1996] ECHR 68, paragraphs 78, 83 and 84.
43 For a list of practice pointing to the non-derogability of habeas corpus, see Henckaerts and Doswald-Beck, op. cit., pp. 350-351 and accompanying footnotes; Pejic, “Procedural Principles and Safeguards for Intern- ment/Administrative Detention in Armed Conflict and Other Situations of Violence”, op. cit., p. 387.
44 Hamdan v. Rumsfeld, 548 US 557, 126 S. Ct. 2749 (2006).
45 See Boumediene et al. v. Bush et al. 553 US 723, 128 S. Ct. 2229 (2008), which could be evidence that States consider habeas corpus to cover even persons they see as enemy fighters in what they take to be an armed conflict.
46 Hassan v. UK, op. cit., paragraph 106.
47 Coard et al v. United States, Case 10.951, Report n° 109/99, Inter-American Commission on Human Rights., 29 September 1999, paragraph 58.
a) have prompt access to information about the reasons for their detention, in a manner which allows the person to take steps to challenge/request a decision on the lawfulness of the detention;
b) be registered and held in a recognised place of internment/detention, with the de- tainee’s family being notified unless contrary to his/her wishes;
c) have contact with their consular representations, if foreign nationals;
d) have the lawfulness of their internment/detention reviewed by an independent and impartial body;
e) have the right to legal assistance;
f) have the right to periodic review of the lawfulness of continued detention, in order to ascertain whether the security reasons for which they are being held continue to prevail;
g) be able to, together with their legal representative, attend in person proceedings listed in (d) and (f) above;
h) be allowed to have contact – including correspondence and visits – with family members i) have access to medical care and attention should their condition require it.
Those safeguards very much resemble the regime laid down by GC IV for the procedure to intern civilians for imperative security reasons, enriched by some IHRL guarantees. They lead to a reasonable and realistic regime, but it is difficult to claim that they correspond, in particular for fighters, to the existing law. While it has been shown above that an analogy with the procedures concerning POWs is inappropriate for members of armed groups in a NIAC, there is no reason (other than the desired result) why, under existing law, there should be an analogy between fighters and civilians. It is however only if this is binding law that such a regime could in my view be considered as a lex specialis, with which the more far-reaching guaran- tees offered by IHRL treaties must be “accommodated”. Unless States accept new binding IHL procedural guarantees following the current ICRC initiative to strengthen the IHL of NIACs concerning detention, a human rights body will be likely to make the IHRL provisions prevail.
An attempt to apply the lex specialis principle
When comparing the rules of IHL of non-international armed conflicts on procedural guarantees for persons arrested with those of IHRL, the former do not (yet) exist while, except for the admis- sible extent of derogations, the latter are clear and well developed by jurisprudence. As far as per- sons detained by a State are concerned, the extraterritorial application of IHRL to those persons is also less controversial than for other issues. A detainee is moreover clearly under the control of those who detain him or her. The IHRL rules must therefore prevail. They are more precise and more restrictive. The ICRC Customary Law Study appears to adopt this approach when it interprets the alleged IHL rule prohibiting the arbitrary deprivation of liberty through the lens of IHRL.48 It 48 See Henckaerts and Doswald-Beck, op. cit., pp. 344-352.
may be added that the result is not so different from that of an application by analogy of the guar- antees set out in Convention IV for civilians in international armed conflicts, the only difference being that under IHRL a court must decide, while under IHL an administrative body is sufficient.49
The only exception where IHL must prevail, as it was specifically made for armed conflicts and provides a rule, exists when either an agreement between the parties or a unilateral recognition of belligerency makes the full regime of POWs applicable. In that case detained fighters have the disadvantage of a lack of access to habeas corpus (although there must inevitably exist a procedure to determine whether an arrested person is or is not an enemy fighter benefiting from POW status), but they have the advantages of a detailed regime governing their detention, of immunity against prosecution and of a right to be released at the end of active hostilities.
A first objection to such an application of IHRL as lex specialis is that it inevitably leads either to unrealistic requirements for armed groups or, if it only applies to the governmental side, to an unequal treatment between the parties of a NIAC. However, this problem will be discussed in another contribution to this collegium.
The main difficulty with this approach is whether it is realistic to expect States, interning possibly thousands, to bring all internees, at least when they so ask, before a court without delay during a NIAC. The difficulty is not only to bring them before a court, but also to offer the court sufficient files and evidence to obtain confirmation of the admissibility of detaining enemy fighters. At least for captures made during active hostilities, it is unrealistic to expect soldiers who must accept the surrender of enemies, to constitute a file which can be used in court, to leave the battlefield to testify in court and to collect other evidence necessary for the State to oppose the argument of the detainee that he or she did not directly participate in hostilities and was not a member of an armed group, all while the fighting goes on. The crux of the matter is that if a successful habeas corpus procedure for the State is not realistic, the obligation to conduct it could lead to the result that most fighters arrested by armed forces on the battlefield will be released by an independent and impartial court, which in turn, could lead to less compliance with the rules in the long-term, i.e. summary executions disguised as battlefield killings and secret detention. A way out of this dilemma may be to considerably lower requirements to the habeas corpus procedure at least for persons arrested during hostili- ties. It is not certain that a Human Rights Court would not show such flexibility. The result of such a reduced habeas procedure would not be very different from an application, by analogy, of the internment procedure prescribed by GC IV.
49 Jean Pictet (ed.), Commentary, IV, Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Geneva, ICRC 1958, pp. 260 and 369.
