Detention by Non-State Armed Groups in NIACs: IHL, International Human Rights Law and the Question of the Right Authority
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This chapter brings attention to the quite divergent consequences of dealing with the issue of detention by non-State armed groups in non-international armed conflicts under international humanitarian law and international human rights law. The conventional approach to detention in international humanitarian law is that armed groups only have a de facto power, bound by humanitarian obligations. Under the laws of war, the question is partly tied to whether States themselves have the prerogative to detain under Common Article 3 to the 1949 Geneva Conventions and the 1977 Additional Protocol II, a question that is far from settled. Non-State armed groups raise the added problem that they may not be recognized, or be recognized only for the purposes of endorsing humanitarian obligations. If international humanitarian law does not apply to the authority to detain, then the question falls to be resolved by international human rights law. Under the latter, there must be a solid foundation to any deprivation of freedom, and the question cannot simply be one of treating captives humanely. This chapter will suggest that in both cases a theory of non-State actors’ ‘right authority’ is missing when it comes to detaining State troops. Historically, this issue has been obscured by the fact that the right authority has been equated with statehood, but the moment may have come to rediscover how one can identify non-State actors that could be considered privileged in the international legal system.
KeywordsInternational Humanitarian Law Non-State Armed Groups Detention International Human Rights Law
- Arnold R, Quénivet N (2008) International Humanitarian Law and Human Rights Law: Towards a New Merger in International Law. Martinus Nijhoff/Brill, Boston.Google Scholar
- Bassiouni C (2008) The New Wars and the Crisis of Compliance with the Law of Armed Conflict by Non-State Actors. The Journal of Criminal Law and Criminology (1973-) 98:711–810.Google Scholar
- Bellal A, Casey-Maslen S (2011) Enhancing compliance with international law by armed non-state actors. Goettingen Journal of International Law 3:175–197.Google Scholar
- Bellinger III J B, Padmanabhan V M (2011) Detention operations in contemporary conflicts: four challenges for the Geneva Conventions and other existing law. American Journal of International Law 105:201–243.Google Scholar
- Bilkova V (2010) Treat Them as They Deserve - Three Approaches to Armed Opposition Groups under Current International Law. Human Rights & International Legal Discourse 4:111–126.Google Scholar
- Bongard P (2008) Engaging Armed Non-State Actors on Humanitarian Norms: The Experience of Geneva Call and the Landmine Ban. In: Geneva Call, PSIO and UNIDIR. Exploring Criteria and Conditions for Engaging Armed Non-State Actors to Respect Humanitarian Law and Human Rights Law. Conference Report. Geneva, 4–5 June 2007, pp 108–123.Google Scholar
- Buckley OM (2011) Unregulated Armed Conflict: Non-State Armed Groups, International Humanitarian Law, and Violence in Western Sahara. North Carolina Journal of International Law and Commercial Regulation 37:793–845.Google Scholar
- Carpenter KA, Riley AR (2014) Indigenous Peoples and the Jurisgenerative Moment in Human Rights. California Law Review 102:173–234.Google Scholar
- Clapham A (2006) Human Rights Obligations of Non-State Actors. Oxford University Press, Oxford.Google Scholar
- Clapham A (2017) Detention by Armed Groups under International Law. International Law Studies 93:2–44.Google Scholar
- Deeks AS (2007) Administrative Detention in Armed Conflict Security Detention: The International Legal Framework. Case Western Reserve Journal of International Law 40:403–436.Google Scholar
- Dormann K (2012) Detention in non-international armed conflicts. International Law Studies 88:347–366.Google Scholar
- Engle E (2009) Third Party Effect of Fundamental Rights (Drittwirkung). Hanse Law Review 5:165–173.Google Scholar
- Geneva Academy of International Humanitarian Law and Human Rights (2016) Human Rights Obligations of Armed Non-State Actors: An Exploration of the Practice of the UN Human Rights Council (Academy In-Brief No. 7), Geneva.Google Scholar
- Goodman R (2015) Authorization versus Regulation of Detention in Non-International Armed Conflicts. International Law Studies Series 91:155–170.Google Scholar
- Hagan J, Wenona R-R (2015) Human Rights and International Humanitarian Law. In: Blau J et al. (eds.) The Leading Rogue State: The U.S. and Human Rights, 1st Edition. Routledge, New York.Google Scholar
- Hessbruegge JA (2005) Human Rights Violations Arising from Conduct of Non-State Actors. Buffalo Human Rights Law Review 11:21–88.Google Scholar
- Higgins N (2009) The regulation of armed non-state actors: promoting the application of the laws of war to conflicts involving national liberation movements. Human Rights Brief 17:12–18.Google Scholar
- Hill-Cawthorne L, Akande D (2014) Does IHL Provide a Legal Basis for Detention in Non-International Armed Conflicts? http://www.ejiltalk.org/does-ihl-provide-a-legal-basis-for-detention-in-non-international-armed-conflicts/. Accessed 15 December 2018.
- International Committee of the Red Cross (2016) Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the FIeld, 2nd edn. https://ihl-databases.icrc.org/ihl/full/GCI-commentary. Accessed 20 August 2018.
- Kaplan O (2013) Nudging Armed Groups: How Civilians Transmit Norms of Protection. Stability. https://www.stabilityjournal.org/articles/10.5334/sta.cw/. Accessed 15 December 2018.
- Lacroix P et al. (2011) Engaging armed non-state actors in mechanisms for protection. Forced Migration Review 37:10–12.Google Scholar
- Lieblich E (2016) Internal Jus ad Bellum. Hastings Law Journal 67(3):687–748.Google Scholar
- Mačák K (2014) No Legal Basis under IHL for Detention in Non-International Armed Conflicts? A Comment on Serdar Mohammed v. Ministry of Defence. http://www.ejiltalk.org/no-legal-basis-under-ihl-for-detention-in-non-international-armed-conflicts-a-comment-on-serdar-mohammed-v-ministry-of-defence/. Accessed 15 December 2018.
- Mastorodimos K (2016) Armed Non-State Actors in International Humanitarian and Human Rights Law: Foundation and Framework of Obligations, and Rules on Accountability. Routledge, London/New York.Google Scholar
- Mégret F (2006) Jus In Bello as Jus Ad Bellum. American Society of International Law Proceedings 100:121–123.Google Scholar
- Mégret F (2013) Apology of Utopia; Some Thoughts on Koskenniemian Themes, with Particular Emphasis on Massively Institutionalized International Human Rights Law. Temple International and Comparative Law Journal 27:455–497.Google Scholar
- Meron T (1989) Human Rights and Humanitarian Norms as Customary Law. Clarendon Press, Oxford.Google Scholar
- Milanovic M (2014) High Court Rules that the UK Lacks IHL Detention Authority in Afghanistan. http://www.ejiltalk.org/high-court-rules-that-the-uk-lacks-ihl-detention-authority-in-afghanistan. Accessed 15 December 2018.
- Murray D (2016) Human Rights Obligations of Non-State Armed Groups. Hart, Oxford.Google Scholar
- Ohlin J (2015) The Combatant’s Privilege in Asymmetric and Covert Conflicts. Yale Journal of International Law 40:337–392.Google Scholar
- Sandoz Y et al. (1987) Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949. ICRC and Martinus Nijhoff Publishers, Geneva.Google Scholar
- Provost R (2002) International Human Rights and Humanitarian Law. Cambridge University Press, Cambridge.Google Scholar
- Roberts A, Sivakumaran S (2012) Lawmaking by nonstate actors: Engaging armed groups in the creation of international humanitarian law. Yale Journal of International Law 37:107–152.Google Scholar
- Rodenhäuser T (2015) International legal obligations of armed opposition groups in Syria. International Review of Law 2:1–16.Google Scholar
- Rona G (2015) Is There a Way Out of the Non-International Armed Conflict Detention Dilemma? International Law Studies 91:32–59.Google Scholar
- Sari A (2014) Sorry Sir, We’re All Non-State Actors Now: A Reply to Hill-Cawthorne and Akande on the Authority to Kill and Detain in NIAC. http://www.ejiltalk.org/sorry-sir-were-all-non-state-actors-now-a-reply-to-hill-cawthorne-and-akande-on-the-authority-to-kill-and-detain-in-niac. Accessed 15 December 2018.
- Steinhoff D (2009) Talking to the Enemy: State Legitimacy Concerns with Engaging Non-State Armed Groups Note. Texas International Law Journal 45:297–322.Google Scholar
- Watkin K (2009) Opportunity Lost: Organized Armed Groups and the ICRC Direct Participation in Hostilities Interpretive Guidance Forum: Direct Participation In Hostilities: Perspectives on the ICRC Interpretive Guidance. New York University Journal of International Law and Politics 42:641–696.Google Scholar
- Watkin K (2012) Small wars: the legal challenges. International Law Studies 88:3–12.Google Scholar