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Beyond Process: The Material Framework for Detention and the Particularities of Non-International Armed Conflict

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Yearbook of International Humanitarian Law 2013

Part of the book series: Yearbook of International Humanitarian Law ((YIHL,volume 16))

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Abstract

Deprivation of liberty in non-international armed conflict (NIAC) has suffered no shortage of attention over the last decade with issues surrounding the legal basis and procedural requirements for detention having received the most focused attention. In the course of these debates, international lawyers have looked to rules found in international humanitarian law (IHL) applicable in international armed conflict (IAC) for guidance, and many have argued that as a matter of either law or policy, the procedural aspects of detention in NIAC should be approached in a similar manner. As these discussions have evolved, their focus on grounds and procedure has left another core aspect of IHL relatively unnoticed, along with its potential role in the evolution of NIAC detention law and policy: in addition to providing a procedural framework for detention in armed conflict, IHL also provides material framework for detention that addresses the physical conditions in which detainees are to be held and the way detention and detention facilities are managed. It is often overlooked that in IAC, IHL’s accounting for the unique situation of armed conflict does not stop at the right to detain or the grounds and procedures for doing so, but also informs extensive rules on the material aspects of detention. The result is a series of essential and unique protections—often going beyond those found in human rights law—designed to address specific vulnerabilities caused by armed conflict. This article calls attention to this aspect of IHL and asks whether the logic and reasoning that informs the material framework for detention established by the Geneva Conventions should have a role to play in the evolution of law and policy governing the material framework for detention in NIAC.

The author is a legal advisor for the International Committee of the Red Cross (ICRC). The views expressed in this article reflect the author’s opinions only and not necessarily those of the ICRC.

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Notes

  1. 1.

    See, e.g., Webber 2012; Corn and Chickris 2012; Huskey 2012; Pejic 2011; Chesney 2011; Bellinger and Padmanabhan 2011; Goodman 2009.

  2. 2.

    See ECtHR, Al-Jedda v. The United Kingdom, Judgment (App. No. 27021/08), 7 July 2011; Boumediene v Bush, 553 U.S. 723 (2008), Hamdan v. Rumsfeld, 548 U.S. 557 (2006); National Defense Authorization Act of 2012, Pub. L. No. 112-81, §§ 1021–1034, 125. Stat. 1298, 1562–1573; Military Commissions Act of 2009, Pub. L. No. 111-84, § 948b(a), 123 Stat. 2190 (codified at 10 U.S.C. § 47A (2006)).

  3. 3.

    See Ministry of Foreign Affairs of Denmark 2012, Copenhagen Process: Principles and Guidelines. It should be noted that the Copenhagen Principles are not limited to NIAC situations. They apply to international military operations in NIAC as well as peace operations, which may fall below the threshold for armed conflict.

  4. 4.

    See 31st International Conference of the Red Cross and Red Crescent 2011: Resolution 1—Strengthening legal protection for victims of armed conflicts, available at http://www.icrc.org/eng/resources/documents/resolution/31-international-conference-resolution-1-2011.htm. Accessed 27 April 2014.

  5. 5.

    See Goodman 2009.

  6. 6.

    See Corn and Chickris 2012; Huskey 2012 (discussing access to counsel in the context of U.S. detention); Webber 2012 (discussing preventive detention generally).

  7. 7.

    See, e.g., Human Rights First, Detained and Denied in Afghanistan: How to make U.S. detention comply with the law (May 2011); Human Rights Watch, Israel: End abusive practices: Hunger Striking Detainees Denied Due Process (24 February 2013), available at: www.hrw.org/news/2013/02/23/israel-end-abusive-detention-practices. Accessed 27 April 2014.

  8. 8.

    Koh, Annual Meeting of the American Society of International Law Speech (25 March 2010), available at: http://www.state.gov/s/l/releases/remarks/139119.htm. Accessed 27 April 2014.

  9. 9.

    For a comprehensive overview of the debate, see Bellinger and Padmanabhan 2011, pp. 205–213.

  10. 10.

    For example, IAC law permits internment of prisoners of war—essentially members of enemy armed forces—until the end of active hostilities without any periodic review. Articles 21, 118 GCIII. It permits the internment of others only if and so long as it is necessary for imperative reasons of security. Articles 42, 78 GCIV. A system of initial and periodic review ensures that these individuals are not held arbitrarily. Articles 43, 78 GCIV.

  11. 11.

    Article 4(A) GCIII. Other persons who may be entitled to prisoner of war (POW) treatment include members of the merchant marine, crews of civil aircraft, and participants in a levee en masse.

  12. 12.

    Article 4 GCIV. Excluded from the scope of GCIV are all nationals of States not bound by the Convention, as well as nationals of neutral or co-belligerent States, so long as the State in question has normal diplomatic representation in the State in whose territory they are.

  13. 13.

    Human rights law and jurisprudence of course address confinement as well, both in the context of humane conditions generally and in the specific context of solitary confinement as a punishment. See, e.g., Rule 32 of the Standard Minimum Rules for the Treatment of Prisoners (hereinafter: SMR), available at: www.ohchr.org/EN/ProfessionalInterest/Pages/TreatmentOfPrisoners.aspx. Accessed 27 April 2014. See also Rodley and Pollard 2009, pp. 402–406. However, unlike IHL, human rights instruments do not link the degree of confinement to the particular legal framework or grounds on which the deprivation of liberty is based.

  14. 14.

    See Pictet 1958 (hereinafter: Commentary GCIV), p. 599.

  15. 15.

    See Pejic 2005, p. 375.

  16. 16.

    Article 21 GCIII.

  17. 17.

    Article 42 GCIV.

  18. 18.

    Article 78 GCIV.

  19. 19.

    Article 21 GCIII.

  20. 20.

    Article 21(1) GCIII.

  21. 21.

    Pictet 1960 (hereinafter: Commentary GCIII), p. 178.

  22. 22.

    Article 41(1) GCIV. See also Article 78(1) GCIV, providing that the detaining authority may “at the most, subject them to assigned residence or internment.”

  23. 23.

    Articles 37(1), 76(3) GCIV.

  24. 24.

    Article 122(2) GCIV. Similarly, Article 118(4) GCIV provides that “the duration of preventive detention undergone by an internee shall be deducted from any disciplinary or judicial penalty involving confinement to which he may be sentenced.”

  25. 25.

    Article 116(2) GCIV.

  26. 26.

    Article 94(2) GCIV.

  27. 27.

    See Article 17(3) of the 2006 International Convention for the Protection of All Persons from Enforced Disappearance (hereinafter: CED) (providing that “the compilation and maintenance of one or more up-to-date official registers and/or records of persons deprived of liberty, which shall be made promptly available, upon request, to any judicial or other competent authority or institution authorized for that purpose by the law of the State Party concerned or any relevant international legal instrument to which the State concerned is a party”); Rule 7(1) SMR (providing that “in every place where persons are imprisoned there shall be kept a bound registration book with numbered pages in which shall be entered in respect of each prisoner received: (a) information concerning his identity; (b) the reasons for his commitment and the authority therefor; (c) the day and hour of his admission and release”); and Principle 12(1) of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (requiring that the authorities record the reasons for the arrest; the time of the arrest and the taking of the arrested person to a place of custody as well as that of his first appearance before a judicial or other authority; the identity of the law enforcement officials concerned; and precise information concerning the place of custody).

  28. 28.

    Article 136(1) GCIV.

  29. 29.

    Article 136(2) GCIV.

  30. 30.

    Article 17(3) CED.

  31. 31.

    Article 2(d) CED.

  32. 32.

    Article 137(1) GCIV. It also requires the bureau to reply to all enquiries which may be received regarding protected persons.

  33. 33.

    Article 140 GCIV.

  34. 34.

    Ibid.

  35. 35.

    See Commentary GCIV, pp. 446–447 (“In general, indeed, their political activities may make the position of civilians in internment more complicated than that of members of the armed forces captured in battle and obstacles which do not exist in the latter case may stand in the way of revealing the situation in which civilian internees may find themselves. It was therefore preferable to leave the Agency the task of judging whether or not to transmit any information received, after consultation, if need be, with those concerned”).

  36. 36.

    Article 137(2) GCIV.

  37. 37.

    Ibid.

  38. 38.

    Article 123 GCIII.

  39. 39.

    See, e.g., Article 30 CED.

  40. 40.

    See Commentary GCIII, p. 341 (“The International Committee of the Red Cross noticed, however, that the Information Bureaux of Detaining Powers invariably required some time to notify captures and transfers; it therefore suggested to the Detaining Powers the dispatch to the Central Prisoners of War Agency of printed cards, called ‘capture cards’, in order to expedite receipt by the Agency and subsequently by their families of essential information concerning prisoners of war”).

  41. 41.

    Article 70 GCIII. See also Article 106 GCIV.

  42. 42.

    See GCIII, Annex IV and GCIV, Annex III.

  43. 43.

    See Commentary GCIII, p. 343 (“The information on the cards is of a very summary kind and censorship should therefore be a mere formality. Cards addressed to the Central Agency might even perhaps be forwarded without censorship”).

  44. 44.

    See Commentary GCIII, p. 341 (“The introduction of a standard card as provided under the present Convention will enable the Detaining Power to prepare a stock of such cards at the commencement of hostilities, ready for distribution to prisoners of war during the first formalities after capture. These cards, on which the main headings are printed, can be filled in easily and within the required time-limit. Article 70 is not only applicable when a prisoner of war is definitely installed in a camp, since there is an express reference to transit camps”).

  45. 45.

    See Articles 22, 23 GCIII; Articles 83, 85 GCIV.

  46. 46.

    See, e.g., Articles 17(6), 22(3), 30(3), 35(1), 41(2), 71(3), 105(4), 107(1) GCIII; Articles 50(3), 65(1), 71(2), 82(1), 93(2), 99, 107(3) GCIV.

  47. 47.

    See Articles 18, 64 GCIII; Article 97 GCIV.

  48. 48.

    Article 1(1) APII.

  49. 49.

    Article 4(2) APII.

  50. 50.

    Article 5(1) APII.

  51. 51.

    Ibid.

  52. 52.

    Article 5(1), 7 APII.

  53. 53.

    Article 5(2) APII.

  54. 54.

    Articles 5(1), 5(2) APII.

  55. 55.

    See Article 5(2) APII.

  56. 56.

    See, e.g., ICTY, Prosecutor v. Limaj, Judgment Trial Chamber (IT-03-66-T), 30 November 2005 (holding that conditions of detention that involved overcrowding, unhygienic conditions, detainees sleeping on floors, irregular and infrequent meals, lack of light or ventilation, and rare access to fresh air, constant application of restraints, and lack of medical care to treat serious injuries amounted to cruel treatment).

  57. 57.

    ICTY, Prosecutor v. Zoran Kupreškić et al., Judgment Trial Chamber (IT-95-16-T), 14 January 2000, para 566 (holding that the expression “other humane acts” found in Article 5(i) of the ICTY Statute “undoubtedly embraces […] the enforced disappearance of persons.”). For more on the development of international law on the issue of enforced disappearance, see Vermeulen 2012.

  58. 58.

    It should be noted that human rights bodies have also dealt with the material framework for detention in NIAC, with similar limitations. See, e.g., ECtHR, Kurt v. Turkey, Judgment (App. No. 24276/94), 25 May 1998, para 125 (holding that failure to record the date, time and location of detention, the name of the detainee as well as the reasons for the detention and the name of the person effecting it is incompatible with Article 5 ECHR); HRC 2001 (“The prohibitions against […] unacknowledged detention are not subject to derogation.”). See also, HRC Draft General Comment on Article 9 ICCPR, available at: www.ohchr.org/EN/HRBodies/CCPR/Pages/DGCArticle9.aspx (accessed 27 April 2014), para 56 (noting that prolonged incommunicado detention violates Article 9 ICCPR and may also amount to ill-treatment or even torture in violation of Article 7 ICCPR).

  59. 59.

    For an analysis of the variation in degree of organization among different armed groups, see Sinno 2011.

  60. 60.

    See Article 4(A)(2) GCIII; Article 4 GCIV.

  61. 61.

    It should be noted that some take the position that GCIV was not intended to apply to unprivileged belligerents. For a detailed discussion of the issue, see Dörmann 2003.

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Authors and Affiliations

  1. International Committee of the Red Cross, Geneva, Switzerland

    Ramin Mahnad

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  1. Ramin Mahnad
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Editors and Affiliations

  1. Criminal Law, Section Military Law, University of Amsterdam, Amsterdam, The Netherlands

    Terry D. Gill

  2. School of Law, University of Glasgow, Glasgow, United Kingdom

    Robin Geiß

  3. Faculteit Rechtsgeleerdheid, Instituut voor Publiekrecht, Internationaal Publiekrecht, Universiteit Leiden, Leiden, The Netherlands

    Robert Heinsch

  4. Carlton, Victoria, Australia

    Tim McCormack

  5. The Hague, The Netherlands

    Christophe Paulussen

  6. The Hague, The Netherlands

    Jessica Dorsey

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Mahnad, R. (2015). Beyond Process: The Material Framework for Detention and the Particularities of Non-International Armed Conflict. In: Gill, T., Geiß, R., Heinsch, R., McCormack, T., Paulussen, C., Dorsey, J. (eds) Yearbook of International Humanitarian Law 2013. Yearbook of International Humanitarian Law, vol 16. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-038-1_2

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