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Expert meeting on procedural safeguards for security detention in non-international armed conflict*

Chatham House and International Committee of the Red Cross, London, 22–23 September 2008

Published online by Cambridge University Press:  07 May 2010

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International Review of the Red Cross , Volume 91 , Issue 876: International Conference of the Red Cross and Red Crescent , December 2009 , pp. 859 - 881
Copyright
Copyright © International Committee of the Red Cross 2009

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References

1 The position paper is entitled “Procedural Principles and Safeguards on Internment/Administrative Detention in Armed Conflict and Other Situations of Violence”, Pejic, J., International Review of the Red Cross, Vol. 87, No. 858, June 2005, pp. 375–391CrossRefGoogle Scholar. It was attached as Annex I to an ICRC Report on “IHL and the Challenges of Contemporary Armed Conflicts” presented to the 30th International Conference of the Red Cross and Red Crescent held in Geneva in November/December 2007.

2 The issue of security detention was also discussed at an expert meeting convened by the ICRC and the Frederick K. Cox International Law Center at Case Western Reserve University in Cleveland, USA in 2007. The report of that meeting is available at: http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/security-detention-report-300909?opendocument (visited 14 December 2009).

3 In this context it remained unclear whether the 96-hour detention system implemented by ISAF nations in Afghanistan before transfer to Afghan authorities would qualify as internment. The International Security Assistance Force (ISAF) in Afghanistan is a NATO-led coalition of about 40 troop-contributing nations with a peace-enforcement mandate under Chapter VII of the United Nations Charter. See http://www.nato.int/isaf/index.html (visited 14 December 2009).

4 The four Geneva Conventions of 12 August 1949 are hereafter referred to respectively as GC I, II, III and IV. Their two Additional Protocols of 8 June 1977 are hereafter referred to respectively as AP I and AP II. Article 3 common to the four Geneva Conventions is hereafter referred to as “common article 3 GC” or “CA3 GC”.

5 The ongoing debate on this question was reflected in the different opinions of meeting participants. Without concluding on the issue, the discussion highlighted the need to take into account that even if IHRL can be said to be binding on non-State actors, some of its obligations are of a nature that allows implementation only by States.

6 No distinction is made in this paper between NIAC as defined in common article 3 GC and NIAC as defined in art. 1 AP II since neither body of rules specifically regulates the legality of or grounds and process for internment. Article 3 is silent on internment, while AP II elaborates only certain aspects of a detention/internment regime.

7 The following typology was proposed by one expert and briefly discussed: Type 1 – armed conflict between two or more non-State actors (NSA), subcategories: in a functioning State v. in a weak or non-functioning or failed State; Type 2 – armed conflict between a State and a non-State actor in the territory of that State, subcategories: armed conflict without territorial control by a NSA, armed conflict with a NSA in control of a part of the territory but without a full governmental structure in the territory, armed conflict where one or more NSA exercise control over a territory, with a government-like structure in place and a stabilization of conflict with remaining potential for active hostilities (in the latter category, the issue of self-determination may come into play and affect the issues raised); Type 3 – armed conflict with third-State intervention, subcategories: third State(s) assisting the State in whose territory a NIAC against a NSA is ongoing, third State(s) assisting the host-State under UNSC cover, and finally a third State fighting a NSA in the territory of another State without the involvement of the territorial State in the conflict. To be noted that this typology was not endorsed by the participants but very much helped provide a “real world” context to the debate.

8 The question of whether different types of NIAC impose a diversification of applicable rules was raised, but not discussed substantially as it fell outside the direct scope of the meeting.

9 See below the summary of Session 3.

10 Article 9, para. 1, International Covenant on Civil and Political Rights (16 December 1966) (hereafter “ICCPR”); article 5, para. 1, European Convention on Human Rights (Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950) (hereafter “ECHR”).

11 For illustrative purposes, the provisions on internment of civilians in IAC or during occupation meet the above-mentioned test in the following way:

  • •

    • Legal basis: explicit authorization to intern in art. 41, para 1, art. 78, para. 1, GC IV.

  • •

    • Permissible grounds:

    • —

      — only if the security of the Detaining Power makes it absolutely necessary (art. 42, para. 1, GC IV) or if necessary, for imperative reasons of security (art. 78, para. 1, GC IV)

    • —

      — voluntary internment, when necessary (art. 42, para. 2, GC IV)

  • •

    • Review mechanism: initial and periodic review in order to judge the (continued) legality of the internment (art. 43, para. 1 and art. 78, para. 2, GC IV).

12 Some governments were said to look at domestic law regulating the deportation of immigrants on national security grounds for guidance on the meaning of “imperative reasons of security” for internment in NIAC.

13 As to article 68 GC IV in the specific situation of occupation, see note 1, p. 381, footnote 21.

14 Some experts indicated that on the ground, their militaries looked for inspiration to article 78 GC IV and relied on similar criteria for interpreting the concept of ‘direct participation in hostilities’.

15 The only example of such explicit wording is UNSC resolution 1546 (2004) and the letters attached to it in relation to the MNF in Iraq.

16 See note 1 above.

17 It was agreed that – depending on the nature of the restriction – a lawful derogation from relevant human rights instruments might be required.

18 It was submitted by a good number of experts that a State must derogate from art. 9, para. 1 ICCPR and/or art. 5, para. 1 ECHR in order to intern in a NIAC. The question of whether derogation is needed from art. 9, para. 4 ICCPR and/or art. 5, para. 4 ECHR is different, as it relates to the right of habeas corpus. Independent of an IHL required internment review the right to habeas corpus must be derogated from only if internees are not given the opportunity to exercise that right.