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National security and the right to liberty in armed conflict: The legality and limits of security detention in international humanitarian law

Published online by Cambridge University Press:  12 February 2018

Zelalem Mogessie Teferra
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Abstract

This paper examines the legality and limits of security detention in armed conflict situations. It particularly investigates the issues of whether the protection of national security is a legitimate ground to restrict the right to liberty of persons in situations of international or non-international armed conflict, and if so, what are the limits to a State's prerogative to restrict the right to liberty of individuals suspected of threatening its national security. On the basis of a thorough analysis of the relevant extant rules of international law regulating warfare, the paper concludes that security detention is permissible in armed conflict situations regardless of whether the nature of the conflict is international or non-international. However, the prerogative of a State to impose security detention is circumscribed by a plethora of fundamental substantive and procedural safeguards against arbitrariness that are provided in the different rules of international humanitarian law and international human rights law. These safeguards affirm that the search for absolute security is neither desirable nor attainable and that the mere invocation of security concerns does not grant an absolute power to restrict or suspend the liberty of individuals in armed conflict situations. Whenever it is imposed, security detention should be preventive in nature, and must aim at safeguarding the basic national security interests of a State from serious, future, direct and imminent threats related to the armed conflict situation. Detainees should also be able to challenge its legality before a competent organ at the initial or later stage of the detention through a system of periodic review.

Keywords

detentionsecurityarmed conflictGeneva Conventionsinternational humanitarian lawinternational human rights law
Type
The legal framework
Information
International Review of the Red Cross , Volume 98 , Issue 903: Detention: Addressing the human cost , December 2016 , pp. 961 - 993
Copyright
Copyright © icrc 2018 

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References

1 Sassòli, Marco, “The Concept of Security in International Law Relating to Armed Conflicts”, in Bailliet, Cecilia M. (ed.), Security: A Multidisciplinary Normative Approach, Martinus Nijhoff, Leiden, 2009, p. 7 Google Scholar.

2 Ibid .

3 See Article 51 of the Charter of the United Nations (signed on 26 June 1945). See also International Court of Justice (ICJ), Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, ICJ Reports 1986, paras 134–139.

4 See, for example, Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War of 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) (GC IV), Arts 43, 78.

5 In occupied territories, preventive detention is mainly aimed at safeguarding the safety and security of the military and its administration, while in a State's own territories, the protection of other broader national security interests, which may or may not have a direct link with military operations, may be a legitimate reason to subject individuals to security detention. As the Israeli Supreme Court has affirmed on various occasions, national security is broader than military security and in occupied territories, the occupying power may not invoke its own broad national security interests to take measures restricting the rights of individuals residing in the occupied territory. This same view had also been advanced during the draft discussion of Article 59 of GC IV, where the British delegate mentioned that acts endangering the security of the occupying power include “sabotage, unlawful hostilities by civilians and marauding”. He also added that the term “military security” is a much more restrained criterion than national security. See Jam'iyat Ascan, cited in Supreme Court of Israel, Beit Sourik Village Council v. The Government of Israel, Case No. HCJ 2056/04, 2004, para. 27; Supreme Court of Israel, Kipah Mahmad Ahmed Ajuri et al. v. The Commander of IDF Forces in the West Bank et al., Case No. HCJ 7015/02, 2002; Supreme Court of Isreal, Amtassar Muhammed Ahmed Ajuri et al. v. The Commander of IDF Forces in Judaea and Samaria et al., Case No. HCJ 7019/02, 2002, para. 28; Statement of Mr. Sinclair (United Kingdom), Final Record of the Diplomatic Conference of Geneva of 1949, Vol. 2(A), 1949, pp. 767, 797.

6 According to the UN Human Rights Committee (HRC), “the concept of arbitrariness is not to be confined to procedural arbitrariness but extends to the reasonableness of the interference with the person's rights and its compatibility with the purposes, aims and objectives of the [international human rights instruments]”. HRC, Jama Warsame v. Canada, Communication No. 1959/2010, 2011, para. 8.8. See also Yoram Dinstein, “The Israeli Supreme Court and the Law of Belligerent Occupation: Deportation”, Israel Yearbook on Human Rights, Vol. 23, 1993, p. 7.

7 The Universal Declaration on Human Rights (UDHR) of 1948 proclaims that “[e]veryone has the right to life, liberty and security of person”, and that “[n]o one shall be subjected to arbitrary arrest, detention or exile” (see UDHR, Arts 3, 9). Under Article 9, the International Covenant on Civil and Political Rights (ICCPR) gives effect to this provision, declaring that “[e]veryone has the right to liberty and security of person” and that “[n]o one shall be subjected to arbitrary arrest or detention”. Similar provisions also exist in regional and other universal human rights conventions. The right to liberty signifies the prohibition of the arbitrary deprivation of liberty, and it applies for all cases of restrictions to liberty, including all sorts of arrest or detention. See HRC, General Comment 8, 1982, para. 1; HRC, Antti Vuolanne v. Finland, Communication No. 265/1987, UN Doc. Supp. No. 40 (A/44/40), 1989, para. 9.4 (restriction of liberty in the context of military discipline), European Court of Human Rights (ECtHR), Guzzardi v. Italy, Application No. 7367/76, Judgment, 6 November 1980, paras 92–95 (in the context of compulsory residence in a particular area).

8 See Henckaerts, Jean-Marie and Doswald-Beck, Louise (eds), Customary International Humanitarian Law, Vol. 1: Rules, Cambridge University Press, Cambridge, 2005 (ICRC Customary Law Study), Rule 99CrossRefGoogle Scholar.

9 See common Art. 3; Geneva Convention III (GC III), Art. 13; Geneva Convention IV (GC IV), Art. 27; Additional Protocol I (AP I), Art. 75(1); Additional Protocol II (AP II), Art. 4(1). Also see ICRC Customary Law Study, above note 8, Rule 87 (civilians and persons hors de combat must be treated humanely).

10 See ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), ICJ Reports 1986, paras 24–25; ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Reports 2004, para. 106; HRC, General Comment 31, 2004, para. 11; HRC, Concluding Observations on Israel, UN Doc. CCPR/CO/78/ISR, 5 August 2003, para. 11; Inter-American Commission on Human Rights (IACHR), Coard et al. v. United States, Case No. 10.951, Report No. 109/99, 29 September 1999, para. 42; ECtHR, Hassan v. The United Kingdom, App. No. 29750/09, Judgment, 16 September 2014, para. 77 (all acknowledge the applicability of IHRL during armed conflict situations).

11 See Els Debuf, Expert Meeting on Procedural Safeguards for Security Detention in Non-International Armed Conflict, Chatham House and ICRC, London, 22–23 September 2008, pp. 2–3.

12 Article 5 of the 1950 European Convention on Human Rights (ECHR) contains an exhaustive list of grounds of permissible detention. See ECHR, Art. 5(1)(a–f).

13 See HRC, David Alberto Cámpora Schweizer v. Uruguay, Communication No. 66/1980, UN Doc. CCPR/C/OP/2, 1990, para. 18.1; HRC, Mansour Ahani v. Canada, Communication No. 1051/2002, UN Doc. CCPR/C/80/D/1051/2002, 2004, para. 10.2 (explicitly stating that “detention on the basis of a security certification on national security grounds does not result ipso facto in arbitrary detention, contrary to article 9, paragraph 1”). See also HRC, General Comment 35, 2014, para. 18; African Charter on Human and Peoples’ Rights, Art. 27. Other human rights bodies have also recognized the legitimacy of security detention in several occasions: see UN Office of the High Commissioner for Human Rights (OHCHR), Report of the Working Group on Arbitrary Detention, A/HRC/30/36, 2015; OHCHR, Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of His or Her Liberty by Arrest or Detention to Bring Proceedings before Court, June 2015, para. 9. However, the HRC has repeatedly emphasized that security detention presents a severe risk of arbitrariness. See HRC, Concluding Observations on Jordan, UN Doc. CCPR/C/JOR/CO/4, 2010, para. 11; HRC, Concluding Observations on Colombia, UN Doc. CCPR/C/COL/CO/6, 2010, para. 20; HRC, General Comment 35, 2014, para. 15. The ECtHR has also held that detention for security reasons may be permissible during public emergency and derogation made in accordance with Article 15 of the ECHR to deport someone, pending deportation proceedings. See ECtHR, Chahal v. United Kingdom, 23 EHRR 413, 1996, para. 112; ECtHR, A and others v. United Kingdom, Judgment (Grand Chamber), 2009 (C.7), para. 169; ECtHR, Hassan, above note 10, para. 104.

14 See GC III, Arts 21, 118; Hague Convention (V) Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, 1907, Art. 11. See also Walen, Alec D., “Crossing a Moral Line: Long-Term Preventive Detention in the War on Terror”, Philosophy and Public Policy Quarterly, Vol. 28, No. 3–4 Google Scholar; Deeks, Ashley S., “Administrative Detention in Armed Conflict”, Case Western Reserve Journal of International Law, Vol. 40, No. 3, 2009, p. 404 Google Scholar.

15 See ICRC, “Internment in Armed Conflict: Basic Rules and Challenges”, Opinion Paper, November 2014, p. 4 (emphasis added).

16 See Milanović, Marko, “Norm Conflicts, International Humanitarian Law, and Human Rights Law”, in Ben-Naftali, Orna (ed.), Human Rights and International Humanitarian Law, Collected Courses of the Academy of European Law, Vol. 19/1, Oxford University Press, Oxford, 2011 Google Scholar, p. 27. Note, however, that PoWs may also be detained if they are lawfully prosecuted or have been lawfully convicted of crimes. See GC III, Arts 85, 99, 119, 129.

17 Ibid ., Art. 103. Note that Art. 21 of GC III makes it clear that “prisoners of war may not be held in close confinement except where necessary to safeguard their health and then only during the continuation of the circumstances which make such confinement necessary”.

18 GC IV, Arts 42, 78. See also Supreme Court of Israel, Iad Ashak Mahmud Marab et al. v. IDF Commander, 2002, paras 19–24. Note that GC IV uses the term “military security” instead of “national security” when it comes to occupied territories: see GV IV, Art. 5(2). This choice of terminology is important because occupied territories are governed by a military administration.

19 See UK High Court of Justice, Serdar Mohammed v. Ministry of Defence and Others, EWHC 1369 (QB), 2 May 2014; Kubo Mačák, “No Legal Basis under IHL for Detention in Non-International Armed Conflicts? A Comment on Serdar Mohammed v. Ministry of Defence”, EJIL: Talk!, 5 May 2014, available at: www.ejiltalk.org/no-legal-basis-under-ihl-for-detention-in-non-international-armed-conflicts-a-comment-on-serdar-mohammed-v-ministry-of-defence/ (all internet references were accessed in November 2017); Lawrence Hill-Cawthorne and Dapo Akande, “Does IHL Provide a Legal Basis for Detention in Non-International Armed Conflicts?”, EJIL: Talk!, 7 May 2014, available at: www.ejiltalk.org/does-ihl-provide-a-legal-basis-for-detention-in-non-international-armed-conflicts; Rowe, Peter, “Is There a Right to Detain Civilians by Foreign Armed Forces during a Non-International Armed Conflict?”, International and Comparative Law Quarterly, Vol. 61, No. 3, 2012 CrossRefGoogle Scholar; Mahnad, Ramin, “Beyond Process: The Material Framework for Detention and the Particularities of Non-International Armed Conflict”, Yearbook of International Humanitarian Law, Vol. 16, 2013 Google Scholar; Murray, Daragh, “Non-State Armed Groups, Detention Authority in Non-International Armed Conflict, and the Coherence of International Law: Searching for a Way Forward”, Leiden Journal of International Law, Vol. 30, No. 2, 2017 CrossRefGoogle Scholar.

20 Jelena Pejic argues that “[i]nternment is … clearly a measure that can be taken in non-international armed conflict, as evidenced by the language of [AP II], which mentions internment in Articles 5 and 6 respectively”. Pejic, Jelena, “Procedural Principles and Safeguards for Internment/Administrative Detention in Armed Conflict and Other Situations of Violence”, International Review of the Red Cross, Vol. 87, No. 858, 2005, p. 377 CrossRefGoogle Scholar, available at: www.icrc.org/en/document/security-detention. See also Kleff, Jann K., “Operational Detention and the Treatment of Detainees”, in Gill, Terry D. and Fleck, Dieter (eds), The Handbook of the International Law of Military Operations, Oxford University Press, Oxford, 2010, p. 471 Google Scholar; III, John Bellinger and Padmanabhan, Vijay, “Detention Operations in Contemporary Conflicts”, American Journal of International Law, Vol. 105, No. 2, 2011, p. 214 Google Scholar; Dörmann, Knut, “Detention in Non-International Armed Conflicts”, in Watkin, Kenneth and Norris, Andrew J., Non-International Armed Conflict in the Twenty-First Century, International Law Studies Series, Vol. 88, US Naval War College, Newport, RI, 2012, p. 348 Google Scholar. The Obama Administration has also invoked common Article 3, AP II and, strangely, the right of self-defence under Article 51 of the UN Charter as a legal basis to intern the Guantanamo detainees. See “Legal Adviser Koh's Speech on the Obama Administration and International Law,” March 2010, available at: www.state.gov/documents/organization/179305.pdf.

21 AP II, Art. 5(1) (emphasis added); Yves Sandoz, Christophe Swinarski and Bruno Zimmerman (eds), Commentary on the Additional Protocols, ICRC, Geneva, 1987 (ICRC Commentary on APs), para. 3063. During the draft discussion for GC IV, in the ninth meeting at the conference of plenipotentiaries, Mr Day (United Kingdom) observed that “[i]f a person had committed an offence, he should be punished. Internment was not a punishment; it was a precautionary measure to safeguard the security of the State.” Final Record of the Diplomatic Conference of Geneva of 1949, Vol. 2, 1949, p. 674 Google Scholar.

22 L. Hill-Cawthorne and D. Akande, above note 19; Goodman, Ryan, “Authorization versus Regulation of Detention in Non-International Armed Conflicts”, International Law Studies, Vol. 91, 2015, p. 159 Google Scholar. Aurel Sari also shares the general view that regulation cannot be equated with authorization, but he disagrees with the conclusion that “IHL does not authorize any of the activities it regulates”. See Aurel Sari, “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”, EJIL: Talk!, 9 May 2014.

23 Ibid .

24 See L. Hill-Cawthorne and D. Akande, above note 19. Marco Sassòli also argues that “in non-international conflicts, IHL cannot possibly be seen as a sufficient legal basis for detaining anyone. It simply provides for guarantees of humane treatment and, in case of prosecution for criminal offences, for judicial guarantees.” Sassòli, Marco, “Terrorism and War”, Journal of International Criminal Justice, Vol. 4, No. 5, 2006, pp. 971–972 Google Scholar. Similarly, Gabor Rona highlights the existence of a gap in the law of NIAC and suggests a gap-filling normative development. Rona, Gabor, “Is There a Way Out of the Non-International Armed Conflict Detention Dilemma?”, International Law Studies, Vol. 91, 2015 Google Scholar.

25 L. Hill-Cawthorne and D. Akonde, above note 19. See also UK High Court of Justice, Mohammed, above note 19, para. 243.

26 Ibid . See also Rowe, Peter, “Is There a Right to Detain Civilians by Foreign Armed Forces during a Non-International Armed Conflict?”, International and Comparative Law Quarterly, Vol. 61, No. 3, 2012, pp. 701–706 CrossRefGoogle Scholar.

27 Goodman, Ryan, “The Detention of Civilians in Armed Conflict”, American Journal of International Law, Vol. 103, No. 1, 2009, p. 50 CrossRefGoogle Scholar.

28 Hill-Cawthorne and Akande also convincingly state: “Since IACs concern two or more states, one state or the other is going to be acting on the territory of a foreign state and acting with respect to individuals who are foreign nationals. In these circumstances, only an explicit norm of international law can provide the legal authority for targeting, detention, etc. Without such a rule of international law, these actions would be unlawful as a matter of international law since states do not have authority to take such action on the territory of another state and have obligations to other states with respect to how they treat nationals of those other states.” L. Hill-Cawthorne and D. Akande, above note 19.

29 E. Debuf, above note 11, p. 4. Otherwise, the alternatives would be to either release or kill captured persons.

30 See, for example, Kreß, Claus, “Some Reflections on the International Legal Framework Governing Transnational Armed Conflicts”, Journal of Conflict and Security Law, Vol. 15, No. 2, 2010, p. 263 CrossRefGoogle Scholar, arguing that “an ‘armed conflict model’ for preventive detention in non-international armed conflicts is likely to emerge through ‘“translation” or analogizing principles from the laws of war governing traditional international armed conflicts’. Such a model could include an inherent power to detain as a corollary of the power to target.” See also Sivakumaran, Sandesh, The Law of Non-International Armed Conflict, Oxford University Press, Oxford, 2012, pp. 301–302 Google Scholar.

31 On the notion of DPH, see Melzer, Nils, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, ICRC, Geneva, 2009 Google Scholar. See also Dinstein, Yoram, The Conduct of Hostilities under the Law of International Armed Conflict, Cambridge University Press, Cambridge, 2004, p. 152 CrossRefGoogle Scholar; Kalshoven, Frits and Zegveld, Liesbeth, Constraints on the Waging of War, ICRC, Geneva, 2001, p. 99 Google Scholar; IACHR, Ellacuria et al. v. Salvador, 22 December 1990; Supreme Court of Israel, Public Committee against Torture in Israel v. The State of Israel et al., 2005, paras 33–40.

32 The Geneva Conventions and their Additional Protocols do not require a material harm to transpire from the activities of a protected person. GC IV Article 42 allows the internment of or imposition of assigned residence on an alien “if the security of the Detaining Power makes it absolutely necessary”. This provision does not require that a hostile act is actually committed by the alien; the potential to commit such acts suffices. See Ghering, Robert W., “Loss of Civilian Protections”, Military Law Review, Vol. 90, Autumn 1980, pp. 51–52, 84–85Google Scholar, arguing that “[a] civilian who has committed no hostile acts nor engaged in any prejudicial activity may still be denied a right whose exercise would be prejudicial to the national interests or security of his enemy”. See also R. Goodman, above note 27.

33 K. Mačák, above note 19.

34 See Pejic, Jelena, “The Protective scope of Common Article 3”, International Review of the Red Cross, Vol. 93, No. 881, 2011, pp. 208–209 CrossRefGoogle Scholar: “It is believed that the ‘imperative reasons of security’ standard strikes a workable balance between the need to protect personal liberty and the detaining authority's need to protect against activity seriously prejudicial to its security.” See also ICRC, “Strengthening Legal Protection for Persons Deprived of Their Liberty in Relation to Non-International Armed Conflict: Regional Consultations”, Background Paper, 2012, p. 13.

35 See Major Barnsby, Robert E., “Yes We Can: The Authority to Detain as Customary International Law”, Military Law Review, Vol. 202, 2009, pp 73–81 Google Scholar. See also Hill-Cawthorne, Lawrence, Detention in Non-International Armed Conflict, Oxford University Press, Oxford, 2016, p. 70 Google Scholar; Kubo Mačák, “A Needle in a Haystack? Locating the Legal Basis for Detention in Non-International Armed Conflict”, Israel Yearbook on Human Rights, Vol. 45, 2015, available at: https://ssrn.com/abstract=2559220.

36 The historical genesis of this provision indicates that the rule was included to allay the concern of States with regard to possible interventions from outside forces including humanitarian organizations under the pretext of humanitarian operations. See ICRC Commentary on APs, above note 21, pp. 1361–1363.

37 As Justice Leggatt rightly pointed out in the Mohammed case, above note 19, States would not have agreed to establish by treaty a power to detain in a NIAC as it would be “anathema” to accept that a potential rebel group would have the right to exercise a function which is a core aspect of State sovereignty.

38 D. Murray, above note 19.

39 See, for example, K. Mačák, above note 19; L. Hill-Cawthorne and D. Akande, above note 19; R. Goodman, above note 22; A. Sari, above note 22.

40 The only practical relevance of arguing for or against IHL providing specific grounds for detention in NIACs is to determine whether a European country involved in a NIAC could impose security detention without violating Article 5 of the ECHR. This was indeed what happened in the Mohammed case, above note 19. See L. Hill-Cawthorne and D. Akande, above note 19.

41 Gabor Rona has stated: “It is logical that … since there is no conflict between two or more sovereigns [in a NIAC], the IHL of non-international armed conflict should be silent, in deference to national law, on questions of detention.” Rona, Gabor, “An Appraisal of US Practice Relating to ‘Enemy Combatants’”, Yearbook of International Humanitarian Law, Vol. 10, 2007, pp. 232, 241CrossRefGoogle Scholar. This is true for most cases of NIAC, but NIACs may also occur across international borders outside the jurisdiction of a particular State, and there is a possibility that the domestic law of one State may not necessarily be adequate. See C. Kreß, above note 30. See also E. Debuf, above note 11, pp. 3–9; Hakimi, Monica, “International Standards for Detaining Terrorist Suspects: Moving Beyond the Armed Conflict–Criminal Divide”, Case Western Reserve Journal of International Law, Vol. 40, No. 3, 2009, pp. 607–609 Google Scholar; M. Sassòli, above note 24, p. 972, Bianchi, Andrea and Naqvi, Yasmin, International Humanitarian Law and Terrorism, Hart, Oxford and Portland, OR, 2011, p. 329 Google Scholar.

42 See D. Murray, above note 19, p. 451.

43 In this regard, attempts to highlight these procedural and substantive safeguards have already been made by a few scholars. See, for example, K. Dörmann, above note 20, pp. 349–365.

44 See Agamben, Giorgio, “The State of Exception as a Paradigm of Government”, in Agamben, Giorgio, State of Exception, trans. Attel, Kevin, Chicago University Press, Chicago, IL, 2005, pp. 1–31 Google Scholar.

45 Pictet, Jean states that “internment and the placing of a person in assigned residence are the severest measures of control that a belligerent may apply to protected persons”. Pictet, Jean (ed.), Commentary on the Geneva Conventions of 12 August 1949, Vol. 4: Geneva Convention relative to the Protection of Civilian Persons in Time of War, ICRC, Geneva, 1958 (ICRC Commentary on GC IV), p. 258 Google Scholar. Also see Supreme Court of Israel, Marab, above note 18, para. 20. In terms of degree of severity, internment is more severe than assigned residence “as it generally implies an obligation to live in a camp with other internees”. See ICRC Commentary on GC IV, above, p. 256. See also Supreme Court of Israel, Ajuri, above note 5, para. 26.

46 Article 41 of GC IV ordains that “[s]hould the Power in whose hands protected persons may be consider the measures of control mentioned in the present Convention to be inadequate, it may not have recourse to any other measure of control more severe than that of assigned residence or internment, in accordance with the provisions of Articles 42 and 43” (emphasis added). Article 78 similarly declares that the occupying power “may, at the most, subject them [protected persons] to assigned residence or to internment” (emphasis added).

47 See ICRC Commentary on GC IV, above note 45, p. 258; Supreme Court of Israel, Ajuri, above note 5, para. 24 (“these measures may be adopted only in extreme and exceptional cases”). In Al-Jedda v. The United Kingdom, the ECtHR noted that internment is “a measure of last resort”: ECtHR, Al-Jedda v. The United Kingdom, 2011, para. 107. Also see Gasser, Hans-Peter, “Protection of the Civilian Population”, in Fleck, Dieter and Bothe, Michael (eds), The Handbook of Humanitarian Law in Armed Conflicts, Oxford University Press, Oxford, 1995, p. 288 Google Scholar.

48 Supreme Court of Israel, Marab, above note 18. The Court stated that “it must always be kept in mind that detention without the establishment of criminal responsibility should only occur in unique and exceptional cases. The general rule is one of liberty. Detention is the exception. The general rule is one of freedom. Confinement is an exception.” Pejic also argues that “internment is an exceptional measure … based on the general principle that personal liberty is the rule, and on the assumption that the criminal justice system is able to deal with persons suspected of representing a danger to State security”. J. Pejic, above note 20, p. 380. See also International Criminal Tribunal for the former Yugoslavia (ICTY), Prosecutor v. Zejnil Delalić et al., 1998, para. 565.

49 ICRC Commentary on GC IV, above note 45, p. 258.

50 See ICRC Commentary on GC IV, above note 45, p. 258 (where Pictet mentions serious threats to security such as espionage and sabotage). Article 75 of GC IV, albeit in relation to suspension of execution of death penalty in occupied territories, talks about “grave emergency involving an organized threat to the security of the Occupying Power or its forces”. In the Schweizer case, the HRC also emphasized that “[a]lthough administrative detention may not be objectionable in circumstances where the person concerned constitutes a clear and serious threat to society which cannot be contained in any other manner, the Committee emphasizes that the guarantees enshrined in the following paragraphs of article 9 fully apply in such instances” (emphasis added). HRC, Schweizer, above note 13, para. 18.1.

51 See S. Sivakumaran, above note 30, p. 303: “Preventive detention without evidence and on a mere suspicion is prohibited even if its stated purpose is to ensure the security of the State.” In its 1999 report on Colombia, the IACHR also observed that “preventive detention is a special measure which should only be applied in cases where reasonable suspicion, and not mere presumption, exists that the defendant may flee from justice or destroy evidence”. IACHR, Third Report on the Human Rights Situation in Colombia, OEA/Ser.L/V/II.102, Doc. 9 Rev. 1, 26 February 1999, para. 21; see also IACHR, Report on Terrorism and Human Rights, 2002 (IACHR Terrorism Report), para. 123.

52 Supreme Court of Israel, Ajuri, above note 5, para. 25 (emphasis added). See also Supreme Court of Israel, A v. State of Israel, CrimA 6659/06, 5 March 2007, para. 23, available at: http://elyon1.court.gov.il/files_eng/06/590/066/n04/06066590.n04.pdf (“clear and convincing evidence”). A similar standard of proof, “highly likely” or “certain”, is also suggested by some experts. See E. Debuf, above note 11, p. 5.

53 Supreme Court of Israel, Ajuri, above note 5, para. 39.

54 Supreme Court of Israel, A v. State of Israel, above note 5, para. 21. According to the Israeli Supreme Court, “in order to intern a person it is not sufficient that he made a remote, negligible or marginal contribution to the hostilities against the State of Israel. … [T]he State must prove that he contributed to the perpetration of hostile acts against the State, either directly or indirectly, in a manner that is likely to indicate his personal dangerousness.” Ibid. See also R. Goodman, above note 27, p. 55.

55 See ICRC Commentary on GC IV, above note 45, p. 258

56 “An essential condition for being able to assign the place of residence of a person under art. 78 of the Fourth Geneva Convention is that the person himself constitutes a danger, and that assigning his place of residence will aid in averting that danger. It follows that the basis for exercising the discretion for assigning residence is the consideration of preventing a danger presented by a person whose place of residence is being assigned. The place of residence of an innocent person who does not himself present a danger may not be assigned, merely because assigning his place of residence will deter others.” Supreme Court of Israel, Ajuri, above note 5, paras 24, 27. See also Supreme Court of Israel, John Does (A) v. Ministry of Defense, HCJ 1 CrimFH 7048/97, 12 April 2000, paras 15–19, available at: www.hamoked.org/files/2012/230_eng.pdf. The Court again confirmed this position in Batya Arad v. The Knesset, Case No. HCJ 2967/00, PD 54 (2) 188, 2000, and in A. and B. v. State of Israel, CrimA 6659/06, CrimA 1757/07, CrimA 8228/07, CrimA 3261/08, 11 June 2008, paras 18–19. See also E. Debuf, above note 11, p. 5; HRC, Concluding Observations on Azerbaijan, UN Doc. CCPR/C/79/Add.38, 1994, para. 8.

57 See R. Goodman, above note 27, p. 55 (citing US Supreme Court, Hamdi v. Rumsfeld, 542 US 507, 2004); J. Pejic, above note 34, p. 21; M. Hakimi, above note 41, p. 644. See also ICRC Commentary on GC IV, above note 45, p. 343.

58 ICTY, Delalić, above note 48, para. 577; Supreme Court of Israel, A v. State of Israel, above note 52, para. 22.

59 Ibid ., para. 22. Dinstein has also written that “administrative detention must have a preventive nature, that is, must be resorted to not as a penalty for an offence committed in the past but as a measure denying the suspect the possibility of committing an offence in the future. When a person is suspected of having already committed an offence, he should be prosecuted by a competent court. True, it happens that administrative detentions are inflicted on persons who are suspected of having committed offences in the past, when there is not sufficient evidence to bring about their conviction by a court of law, or where proof of their guilt beyond reasonable doubt requires the disclosure of intelligence sources (especially the exposure of secret agents whom the occupant does not wish to endanger or whose clandestine operation he is unwilling to discontinue). Yet, even in such instances, the reason for the internment (at least in theory) is not punishment (without due process of law) for the offence committed in the past, but apprehension lest similar acts be committed in the future.” Yoram Dinstein, “The International Law of Belligerent Occupation and Human Rights”, Israel Yearbook on Human Rights, Vol. 8, 1978, pp. 125–126.

60 Ibid . However, as Dinstein has indicated (Ibid.), this does not mean that the individual cannot be subjected to other measures. Indeed, if he is a civilian, he may be subjected to criminal proceedings and punishment upon conviction for participating in hostilities. See, for example, GC IV, Art. 68.

61 Supreme Court of Israel, John Does, above note 56, para. 16.

62 See M. Hakimi, above note 41, pp. 610–614.

63 Ibid . See also Supreme Court of Israel, Ajuri, above note 5, para. 24.

64 GC IV, Art. 132.

65 Ibid ., Art. 133. This is a long-standing position of the ICRC. According to Jelena Pejic, “[o]ne of the most important principles governing internment/administrative detention is that this form of deprivation of liberty must cease as soon as the individual ceases to pose a real threat to State security, meaning that deprivation of liberty on such grounds cannot be indefinite. In view of the rapid progression of events in armed conflict, a person considered to be a threat today might not pose the same threat after a change of circumstances on the ground. In other words, the longer internment lasts, the greater the onus on a detaining authority to prove that the reasons for it remain valid. The rationale of the principle is, thus, to facilitate the release of a person as soon as the reasons justifying the curtailment of liberty no longer exist.” J. Pejic, above note 20, p. 382. See also AP I, Art. 75(3). This is considered to be a rule of customary international law applicable for both IAC and NIAC. See ICRC Customary Law Study, above note 8, Rule 128(c); M. Hakimi, above note 41, p. 607; K. Dörmann, above note 20, pp. 352–353. See also A. Bianchi and Y. Naqvi, above note 41, p. 370; H.-P. Gasser, above note 47, pp. 322–323.

66 GC IV, Art. 133(2). See Y. Dinstein, above note 59, p. 126.

67 Pictet has written that GC IV “stresses the exceptional character of internment and assigned residence by making their application subject to strict conditions; its object in doing this is to put an end to an abuse which occurred during the Second World War. All too often the mere fact of being an enemy subject was regarded as justifying internment. Henceforward only absolute necessity, based upon the requirements of State security, can justify recourse to these two measures, and only then if security cannot be safeguarded by other, less severe means. All considerations not on this basis are strictly excluded.” ICRC Commentary on GC IV, above note 45, p. 258; ICTY, Delalić, above note 48, para. 581 (“The judicial or administrative body reviewing the decision of a party to a conflict to detain an individual must bear in mind that such measures of detention should only be taken if absolutely necessary for reasons of security. Thus, if these measures were inspired by other considerations, the reviewing body would be bound to vacate them”). See also H.-P. Gasser, above note 47, p. 320.

68 A good illustration of these tests can be found in the decision of the Israeli Supreme Court in the Beit Sourik case, above note 5, para. 41. See also R. Goodman, above note 27, p. 55. Gasser has further observed that “[i]nternment should be ordered only if other control measures are not sufficient”: H.-P. Gasser, above note 47, p. 288. See also IACHR, Coard et al. v. United States, 1999, para. 52; IACHR Terrorism Report, above note 51, para. 143.

69 Supreme Court of Israel, Sejadia v. Minister of Defence, Case No. HCJ 253/88, IsrSC 43(3) 801, 1988, cited in Supreme Court of Israel, Ajuri, above note 5, para. 25.

70 IACHR Terrorism Report, above note 51, para. 143.

71 In IHRL, the term “necessary” is considered to be not synonymous with “indispensable”, nor has it the flexibility of such expressions as “admissible”, “ordinary”, “useful”, “reasonable” or “desirable”. See the decisions of the ECtHR in Handyside v. United Kingdom, 1976, para. 48. see also ECtHR, The Observer and the Guardian v. The United Kingdom, Judgment, 26 November 1991, para. 59; ECtHR, Gillow v. United Kingdom, Judgment, 24 November 1986, para. 55. The ICJ in the Nicaragua case also held that those measures designed to protect national security interests must be “not merely useful but ‘necessary’”: ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Reports 1986, p. 117, para. 224.

72 HRC, General Comment 35, 2014, para. 15.

73 ICRC Commentary on GC IV, above note 45, pp. 367–368.

74 Supreme Court of Israel, Beit Sourik, above note 5, paras 27–28 (asserting that the security barrier wall was meant to address security concerns emanating from terrorists and not as a political measure to define a boundary). See also Eyal Benvenisti, The International Law of Occupation, 2nd ed., Oxford University Press, Oxford, 2012, p. 21; Yoram Dinstein, The International Law of Belligerent Occupation, Cambridge University Press, Cambridge, 2009, p. 247; Sassòli, Marco, “Legislation and Maintenance of Public Order and Civil Life by Occupying Powers”, European Journal of International Law, Vol. 16, No. 4, 2005, p. 673 CrossRefGoogle Scholar; Y. Dinstein, above note 59, pp. 109–110.

75 See HRC, Concluding Observations on Israel, UN Doc. CCPR/C/79/Add.93, 1998, para. 21. See also HRC, Concluding Observations on India, UN Doc. CCPR/C/79/Add.81, 4 August 1997, para. 24.

76 “This does not mean that a detaining authority cannot intern a large number of persons, but that both the initial decision on internment and any subsequent decision to maintain it, including the reasons for internment, must be taken with respect to each individual involved.” J. Pejic, above note 20, pp. 381–382.

77 See ICCPR, Art. 9(4); ECHR, Art. 5(4); Inter-American Convention on Human Rights, Art. 7(6). See also Article 17(2)(f) of the International Convention for the Protection of all Persons from Enforced Disappearance; Article 16 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families; Article 14 of the Convention on the Rights of Persons with Disabilities; and Principle 4 of the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, UNGA Res. 43/173, 9 December 1988 (UN Body of Principles). See also HRC, General Comment 35, 2014, paras 15, 40, 46; HRC, Schweizer, above note 13, para. 18.1; IACHR Terrorism Report, above note 51, paras 128, 139; OHCHR, General Comment 8, UN Doc. HRI/GEN/1/Rev.1, 1994, para. 4.

78 For example, the US Constitution even allows the suspension of the right of habeas corpus “in Cases of Rebellion or Invasion [as] the public Safety may require it.” Constitution of the United States, Art. 1, Sec. 9, para. 2. In the first couple of years following the 9/11 terrorist attacks, for instance, the government of the United States consistently claimed that those detainees held in Guantanamo should not benefit from the right of habeas corpus. See Hafetz, Jonathan, “A Different View of the Law: Habeas Corpus during the Lincoln and Bush Presidencies”, Chapman Law Review, Vol. 12, 2009, p. 441 Google Scholar.

79 GC IV, Arts 5(3), 71–78, 123(2), 126.

80 Dinstein has noted that the rules of IHL “are in force, in their full vigor, in wartime (as well as in hostilities short of war), in as much as they are directly engendered and shaped by the special demands of the armed conflict. Derogation from [these rights] is possible in extreme instances, but limited to specific persons or situations and no others. In this crucial respect, [the rights in IHL] are utterly different from ordinary (peacetime) human rights. Ordinary (peacetime) human rights are frequently subject to restrictions, which can be placed on their exercise ‘in the interests of national security or public safety’. Even more significantly, the application of ordinary (peacetime) human rights – whether or not restricted – can usually be derogated from in time of an international armed conflict.” Y. Dinstein, above note 31, p. 22. See also ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Separate Opinion of Judge Rosslyn Higgins, Advisory Opinion, 2004, para. 14; Doswald-Beck, Louise and Vite, Sylvain, “International Humanitarian Law and Human Rights Law”, International Review of the Red Cross, Vol. 33, No. 293, 1993, p. 98 Google Scholar; IACHR Terrorism Report, above note 51, para. 78; ICRC Commentary on APs, above note 21, p. 303; Dörmann, Knut, Elements of War Crimes under the Rome Statute of the International Criminal Court, Cambridge University Press, Cambridge, 2003, p. 250 CrossRefGoogle Scholar.

81 ICTY, Delalić, above note 48, para. 581. See also ICRC Commentary on GC IV, above note 45, p. 261 (stating that “the procedures established in Geneva Convention IV itself are a minimum”).

82 For example, see GC IV, Art. 5.

83 See H.-P. Gasser, above note 47, p. 289. Similarly, the IACHR stated that the requirement of a “regular procedure” includes “the right of the detainee to be heard and to appeal the decision, and any continuation of the detention must be subject to regular review”: IACHR Terrorism Report, above note 51, para. 143.

84 The relevant GC IV provision in a State's own territory, Article 43, only talks about the requirement of administrative or judicial review of the decision to intern. However, Pictet asserts that the nature of the regular procedure under Article 78 to make the original decision to detain should mirror the stipulations in Article 43. ICRC Commentary on GC IV, above note 45, p. 368. The explicit stipulation of a regular procedural requirement only in relation to occupied territories may be viewed as a reinforcement of the exceptional nature of security detention in occupied territory, as opposed to a State's own territory.

85 See Supreme Court of Israel, Marab, above note 18, para. 32. The procedures specified under Article 78 are also available in the military manuals of many countries, and the practice of many countries reveals the applicability of the principle of judicial detention. See ICRC Customary Law Study, above note 8, p. 345 and Vol. 2: Practice, pp. 2240–2250.

86 See HRC, General Comment 35, 2014, para. 15.

87 See US Supreme Court, Zadvydas v. Davis, [2001] 533 US 678, 2001; US Supreme Court, Hamdi v. Rumsfeld, 542 US 507, 2004; US Supreme Court, Rasul v. Bush, 542 US 466, 2004; US Supreme Court, Boumediene v. Bush, 553 US 723, 2008. See also Jennifer K. Elsea and Michael John Garcia, Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court, CRS Report for Congress, 3 February 2010; Supreme Court of Israel, Marab, above note 18, para. 26. See also A v. State of Israel, 6659/06 HCJ, 5 March 2007, para. 41.

88 Article 43, article 78 GC IV (“with the least possible delay”). Unlike IHRL, there is not a specific time provided for judicial intervention in IHL. So it depends on the circumstances and the test of proportionality shall come into play when intervention is delayed for some time. The Israeli Supreme Court in Marab case has found that 18 days' time to be brought before a judicial authority in occupied territories is unacceptable while in A v. State of Israel, it found 14 days delay not disproportionate. Supreme Court of Israel, Marab, above note 18, para. 32; Supreme Court of Israel, A v. State of Israel, above note 52.”

89 See US Supreme Court, Hamdi, above note 87, p. 532.

90 ICRC Customary Law Study, above note 8, p. 351.

91 ICCPR, Art. 9(4); ECHR, Art. 5(4); Inter-American Convention on Human Rights, Art. 7(6). See also Article 17(2)(f) of the International Convention for the Protection of all Persons from Enforced Disappearance, Article 16 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families; Article 14 of the Convention on the Rights of Persons with Disabilities; and Principle 4 of the UN Body of Principles, above note 77.

92 ACHPR, Achuthan (on behalf of Banda) and Amnesty International (on behalf of Orton and Vera Chirwa) v. Malawi, Comm. Nos 64/92, 68/92, 78/92, 1995, paras 8–9; ACHPR, Abdel Hadi, Ali Radi and Others v. Republic of Sudan, Communication No. 368/09, 4 June 2014, para. 87; ACHPR, Purohit and Moore v. The Gambia, Communication No. 241/01, 2003, para. 70.

93 Emphasis added. ACHPR, Hadi, above note 92, para. 87, See also, e.g., ACHPR, Purohit, above note 92, para. 72; ACHPR, Good v. Botswana, 2011; ACHPR, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, Principle 5(e).

94 See ACHPR, Hadi, above note 92, para. 88; ACHPR, Good, above note 93, para. 175.

95 IACHR Terrorism Report, above note 51, paras 126–127. See also Inter-American Court of Human Rights (IACtHR), Habeas Corpus in Emergency Situations (Arts. 27(2) and 7(6) of the American Convention on Human Rights), Advisory Opinion OC-8/87, Ser. A, No. 8, 30 January 1987. The Arab Charter also takes the same position on the non-derogability of the right of habeas corpus. Although Article 4 of the ICCPR does not explicitly list it among the catalogue of non-derogable rights, the HRC has observed that “[i]n order to protect non-derogable rights, the right to take proceedings before a court to enable the court to decide without delay on the lawfulness of detention, must not be diminished by a State party's decision to derogate from the Covenant”: HRC, General Comment 29, 2001, para. 16. See also the HRC's Concluding Observations on Israel, UN Doc. CCPR/C/79/Add.93, 1998, para. 21 (in the context of preventive detention, the HRC observed that despite Israel's derogation from Article 9, Israel “may not depart from the requirement of effective judicial review of detention”). The statements of the Committee clearly imply that the right of habeas corpus is of peremptory nature, at least when it is invoked in relation to non-derogable rights. See A. Bianchi and Y. Naqvi, above note 41, p. 304.

96 See ECtHR, Sakık and Others v. Turkey, Judgment, 26 November 1997, para. 44.

97 HRC, Luis Touron v. Uruguay, Communication No. R.7/32, UN Doc. Supp. No. 40 (A/36/40), 1981, paras 2.1, 2.3, 12.

98 Article 9(4) of the ICCPR specifies that the body must be a court, while Article 5(3) of ECHR, Article 14(5) of ACHPR and Article 7(5) of the IACHR require the body to be a “judge or other officer authorized by law to exercise judicial power”.

99 Article 43 is modelled on the provision in Article 35(2) of GC IV. See ICRC Commentary on GC IV, above note 45, p. 261.

100 J. Bellinger III and V. Padmanabhan, above note 20, p. 210.

101 In the case of Hassen v. UK, the ECtHR noted that “Whilst it might not be practicable, in the course of an international armed conflict, for the legality of detention to be determined by an independent “court” in the sense generally required by Article 5 § 4 …, nonetheless, if the Contracting State is to comply with its obligations under Article 5 § 4 in this context, the ‘competent body’ should provide sufficient guarantees of impartiality and fair procedure to protect against arbitrariness”: ECtHR, Hassan, above note 10, para. 106. See also ICRC Commentary on GC IV, above note 45, p. 260.

102 Ibid ., p. 261.

103 HRC, General Comment 35, 2014, paras 15, 18. In A v. Australia, the Committee observed that “every decision to keep a person in detention should be open to review periodically so that the grounds justifying the detention can be assessed. In any event, detention should not continue beyond the period for which the State can provide appropriate justification.” HRC, A v. Australia, 1997, para. 9.4.

104 ICRC Commentary on GC IV, above note 45, p. 261.

105 Ibid .; ICTY, Delalić, above note 48, para. 58. Similarly, the Israeli Supreme Court held that “[t]he extreme means of detention … places a special duty both on the competent authority and on the court in making the judicial review to carefully examine, from time to time, the extent of justification for the continuation of detention, while exercising restraint in use of the detention means and limiting it to situations in which real security needs require it.” See also Khaled Ali Salem Said v. State of Israel, CrimA 7446/08, Judgment, 7 November 2008, para. 43.

106 See, for example, ECtHR, Lebedev v. Russia, Judgment, 25 October 2007, paras 78–79. The HRC also did not specify the length of time between each review; it simply stated that there shall be “sufficiently frequent review”.

107 ICRC Commentary on GC IV, above note 45, p. 261.

108 Supreme Court of Israel, Marab, above note 18, para. 32.

109 H.-P. Gasser, above note 47, p. 322.

110 There is no similar requirement in occupied territory under Article 78 of GC IV.

111 ICRC Commentary on GC IV, above note 45, p. 262.

112 Note that Article 43 of GC IV (unlike Article 35) does not specify that there should be a request from the protecting power. So, the detaining power should act on its own motion. Ibid.

113 Ibid ., pp. 574, 577.

114 Ibid .

115 Article 75 of AP I, for example, states that “any person arrested, detained or interned for actions related to the armed conflict shall be informed promptly, in a language he understands, of the reasons why these measures have been taken”.

116 This right is not explicitly mentioned in IHL treaties for security detainees, but the Israeli Supreme Court derived this right from Articles 27 and 113 of GC IV and observed that the right to access a lawyer “stems from every person's right to personal liberty”. All the same, the Court noted that the right, depending on the circumstances, may be qualified for reasons of security provided that any prevention of access to a lawyer is reasonable and proportional. The detainee cannot use this right “as a pretext for the giving of information for subversive purposes”. Supreme Court of Israel, Marab, above note 18, paras 42–45. See also HaMoked et al. v. Commander of the Israel Defense Force in the West Bank, Case No. HCJ 3278/02, 2002, paras 54–57 available at: www.hamoked.org/items/1030_eng.pdf (unofficial translation).

117 GC IV, Arts 27, 37; AP I, Art. 75; common Article 3; AP II, Arts 4, 5. See also ICRC Commentary on GC IV, above note 45, p. 39 (on taking of hostages).

118 Supreme Court of Israel, HaMoked, above note 116, para. 29.

119 GC IV, Arts 89, 90.

120 Ibid ., Arts 90, 91.

121 Ibid ., Arts 93, 94.

122 Supreme Court of Israel, HaMoked, above note 116, paras 33–39.

123 See HRC, CCPR General Comment No. 29, “Article 4: Derogations during a State of Emergency”, UN Doc. CCPR/C/21/Rev.1/Add.11, 31 August 2001, para.13(b); HRC, General Comment 20, 1992, para. 11. See also UN Body of Principles, above note 77, Principle 12; HRC, Joint Study on Global Practices in Relation to Secret Detention in the Context of Countering Terrorism, UN Doc. A/HRC/13/42, 19 February 2010, pp. 1–5; US Supreme Court, Hamdi, above note 87.

124 Indeed, in several cases that involved the detention of individuals for security reasons, the different human rights treaty bodies uniformly noted that prolonged incommunicado detention/solitary confinement may be contrary to the prohibition against torture and inhuman or degrading treatment. HRC, Medjnoune v. Algeria, Communication No. 1297/2004, UN Doc. CCPR/C/87/D/1297/2004, 2006, para. 8.4; IACtHR, Case of Castillo Petruzzi et al. v. Peru, Judgment, 30 May 1999, paras 195, 198; IACtHR, Velasquez Rodriguez v. Honduras, Judgment, Ser. C, No. 4, 29 July 1988, para. 156; ACHPR, Liesbeth Zegveld and Mussie Ephrem v. Eritrea, Communication No. 250/02, 20 November 2003, para. 55, ECtHR, Ramirez Sanchez v. France, Judgment, 4 July 2006.

125 See Chetail, Vincent, “The Transfer and Deportation of Civilians”, in Clapham, Andrew, Gaeta, Paola and Sassòli, Marco (eds), The 1949 Geneva Conventions: A Commentary, Oxford University Press, Oxford, 2015, p. 1201 Google Scholar.

126 See Article 3 of the UN Convention against Torture; Article 13(4) of the 1985 Inter-American Convention to Prevent and Punish Torture; Article 16 of the International Convention for the Protection of All Persons from Enforced Disappearance; Article 19(2) of the 2000 Charter of Fundamental Human Rights of the European Union; and Article 22(8) of the Inter-American Convention on Human Rights. See also HRC, Chitat Ng v. Canada, UN Doc. CCPR/C/49/D/469/1991, 7 January 1994; HRC, A. J. R. v. Australia, UN Doc. CCPR/C/60/D/692/1996, 11 August 1997. See also HRC, General Comment 20, 1992, para. 9.

127 Unfortunately, unlike Article 49, Article 45 does not mention the term “deportation”, and this gave rise to misinterpretation of the provision that it allows expulsion of individuals for national security reasons. For example, the ICRC Commentary states that “[i]n the absence of any clause stating that deportation is to be regarded as a form of transfer, this Article would not appear to raise any obstacle to the right of Parties to the conflict to deport aliens in individual cases when State security demands such action”: ICRC Commentary on GC IV, above note 45, p. 266. This is an incorrect interpretation, and it is “even dangerous and counterproductive”, for it allows a State to shirk its obligation by expelling protected persons to States where transfer is prohibited under Article 45. V. Chetail, above note 125, pp. 1197.

128 The only exception under Article 45 is extradition “in pursuance of extradition treaties concluded before the outbreak of hostilities, of protected persons accused of offences against ordinary criminal law”. The inevitable question is, which law shall prevail, say, for a refugee in an armed conflict who is detained or interned for security reasons? One possible solution is to apply the most favourable rule to the detainee. For example, as far as the non-refoulement of a refugee to places of persecution on “political opinions or religious” is concerned, IHL shall prevail over both international refugee law and IHRL. As has been indicated, the absolute proscription of Article 45 protects the refugee detainee not only from being sent back to a country where he or she fears persecution for reasons of national security (under Article 33 of the 1951 Refugee Convention), but also from being sent to other places whether there is a risk of torture or ill-treatment, as is required by IHRL. If, however, the risk of persecution is based on other grounds such as race, nationality, membership of a particular social group or colour, either international refugee law or IHRL shall apply, whichever is found to be more favourable on the basis of a context-specific analysis. For a general overview of the “most favourable rule”, see Vincent Chetail, “Armed Conflict and Forced Migration”, in Andrew Clapham and Paola Gaeta (eds), The Oxford Handbook of International Law in Armed Conflict, Oxford University Press, Oxford, 2014, pp. 701–703; Björn Arp (ed.), International Norms and Standards for the Protection of National Minorities: Bilateral and Multilateral Treaties with Commentary, Martinus Nijhoff, Leiden, 2008, p. 67. Also see, e.g., IACtHR, Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Arts. 13 and 29 of the American Convention on Human Rights), Advisory Opinion OC-5/85, 1985, para. 4; IACtHR, In the Matter of Viviana Gallardo et al., Advisory Opinion G 101/81, 13 November 1981, para. 16.

129 GC IV, Art. 49 (emphasis added). See also AP II, Art. 17; Y. Dinstein, above note 59, p. 123.

130 Both individual and collective transfers are prohibited. It has been further argued that the prohibition applies to both within or outside the occupied territories. See V. Chetail, above note 125, pp. 1187–1188. See also Y. Dinstein, above note 6, pp. 14–15, 19; Yutaka Arai-Takahashi, The Law of Occupation: Continuity and Change of International Humanitarian Law, and its Interaction with International Human Rights Law, Martinus Nijhoff, Leiden and Boston, MA, 2009, pp. 330–331. See, however, the much criticized decision of the Israeli Supreme Court in which the Court held that individual deportations are outside the purview of Article 49: Supreme Court of Israel, Association of Civil Rights in Israel et al. v. The Minister of Defence et al., HC 5973192 etc., 47(1) Piskei Din 267, Israel Yearbook on Human Rights, Vol. 23, 1993, p. 356.

131 The Trial Chamber of the ICTY confirmed that “[e]vacuation is by definition a temporary and provisional measure”: ICTY, The Prosecutor v. Blagoje Simić, Miroslav Tadić and Simo Zarić, Case No. IT-95-9-T, Judgment (Trial Chamber), 17 October 2003, para. 597. See also V. Chetail, above note 125, p. 1192.

132 The phrase “security of the population” refers to the safety of the population of the occupied territory, not the safety or national security of the occupying power. See H.-P. Gasser, above note 47, p. 253.

133 ACHPR, Sudan Human Rights Organisation and Centre on Housing Rights and Evictions (COHRE) v. Sudan, Communication No. 279/03-296/05, 27 May 2009, para. 165.

134 Ibid .

135 ICRC Commentary on GC IV, above note 45, p. 280. See also V. Chetail, above note 125, p. 1191.

136 See Supreme Court of Israel, Ajuri, above note 5, paras 20–22. See also ICRC Commentary on GC IV, above note 45, p. 368.

137 Final Record of the Diplomatic Conference of Geneva of 1949, Vol. 2(A), p. 796, and Vol. 2(B), p. 526. See also Pictet, Jean (ed.), Commentary on the Geneva Conventions of 12 August 1949, Vol. 3: Geneva Convention relative to the Treatment of Prisoners of War, ICRC, Geneva, 1960 (ICRC Commentary on GC III), p. 596 Google Scholar.

138 Ingelse, Chris, United Nations Committee Against Torture: An Assessment, Kluwer Law International, Boston, MA, 2001, p. 216 Google Scholar.

139 They should be applied exceptionally. M. Sassòli, above note 1, p. 17. Also see ICRC Commentary on GC III, above note 137, p. 492; ICRC Commentary on GC IV, above note 45, p. 218, 367.

140 “Security is a relative rather than an absolute term. National and international security need to be viewed as matters of degree.” UNGA Res. 38/188, 20 December 1983, submitted by the UN Secretary-General as Study on Concepts of Security, Report A/40/553, 26 August 1985, p. 45, para. 206.

141 See M. Sassòli, above note 1, p. 19.

142 Emerson, Thomas I., “National Security and Civil Liberties”, Yale Journal of International Law, Vol. 9, No. 1, 1982, p. 82 Google Scholar.

143 Chandler, Jennifer A., “Personal Privacy versus National Security: Clarifying and Reframing the Trade-Off”, in Kerr, Ian, Lucock, Carole and Steeves, Valerie (eds), On the Identity Trail: Anonymity, Privacy and Identity in a Networked Society, Oxford University Press, Oxford, 2009, p. 126 Google Scholar.