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Procedural principles and safeguards for internment/administrative detention in armed conflict and other situations of violence

Published online by Cambridge University Press:  27 April 2010

Jelena Pejic
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Abstract

Deprivation of liberty for security reasons is an exceptional measure of control that may be taken in armed conflict, whether international or non-international. Administrative detention of persons believed to represent a threat to State security is also being more and more widely practised outside of armed conflict situations. This paper argues that both internment and administrative detention are insufficiently elaborated from the point of the view of the protection of the rights of the persons affected. Drawing on international humanitarian law and on human rights law and standards, the paper proposes a set of procedural principles and safeguards that should — as a matter of law and policy — be applied as a minimum to all cases of deprivation of liberty for security reasons.

Type
Selected articles on international humanitarian law
Information
International Review of the Red Cross , Volume 87 , Issue 858: Religion , June 2005 , pp. 375 - 391
Copyright
Copyright © International Committee of the Red Cross 2005

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References

1 See Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, ICRC/Martinus Nijhoff Publishers, Geneva, 1987Google Scholar, “Commentary on Protocol I relative to international armed conflicts”, Art. 75 (3), para. 3063.

2 The relevant criteria, which are explained in greater detail below, are laid down in Article 4 of the International Covenant on Civil and Political Rights (ICCPR).

3 The term “other situations of violence” refers to situations below the threshold of armed conflict and includes situations of “internal disturbances or tensions” as specified in Article 1 (2) of Additional Protocol II.

4 The term “internment” is also intended to cover the notion of “assigned residence,” to which identical provisions of the Fourth Geneva Convention apply.

5 This should in no way be read as referring to (or legitimizing) the practice of hostage-taking, which is strictly prohibited by international humanitarian law. The ICRC's position is that hostages must be immediately and unconditionally released.

6 For differences in the legal regulation of internment in international and non-international armed conflicts and in other situations of violence see section I, “Legal sources,” below.

7 GC IV, Arts. 43 and 78; AP I, Art. 75 (3).

8 The Martens clause is, inter alia, included in Article 1 (2) of Additional Protocol I which reads: “In cases not covered by this Protocol or by other international instruments, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.”

9 ICJ Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 9 July 2004, para. 106.

10 See “Commentary on AP I”, op. cit. (note 1), paras. 2927– 2935.

11 AP I, Art. 75 (8).

12 See Article 3 common to the Geneva Conventions, which also specifies that the conclusion of a special agreement “shall not affect the legal status of Parties to the conflict.” Special agreements can be effective particularly in high-intensity non-international armed conflicts which resemble inter-State armed conflict.

13 “Commentary on P II”, op. cit. (note 1), paras. 4428–4430.

14 The full text of Article 4 of the ICCPR reads: “1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. 2. No derogation from articles 6, 7, 8 (paras. 1 and 2), 11, 15, 16 and 18 may be made under this provision. 3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.”

15 In cases where a State is not a party to the ICCPR or similar regional human rights treaties, it is submitted that the procedural principles and safeguards listed below should be followed as a matter of policy.

16 ICCPR, Art. 4 (2).

17 ICCPR, Art. 9 (4).

18 It should again be noted that this text does not deal with the internment of prisoners of war in international armed conflicts, which is governed by the Third Geneva Convention. As already mentioned, it is assumed that the right to liberty of person has been derogated from in keeping with Article 4 of the ICCPR.

19 See Commentary on the Geneva Conventions of 12 August 1949, Vol. IV, Geneva Convention relative to the Protection of Civilian Persons in Time of War, Art. 42, p. 257. See also the Commentary on Article 78, at page 368, which reiterates that: “In any case such measures can only be ordered for real and imperative reasons of security; their exceptional character must be preserved.”

20 Similarly, interning or administratively detaining persons for the purpose of using them as “bargaining chips” is also not justifiable as a reason for internment. Such deprivation of liberty would in fact amount to hostage-taking, which is prohibited.

21 The argument that administrative and criminal detention are two distinct regimes is — at first glance — undermined by Article 68 of the Fourth Geneva Convention which deals with petty offences committed by protected persons in occupied territory. The Commentary on Article 68, however, rectifies any possible perception of overlap between the regimes of administrative and criminal detention that the wording of the provision suggests. It reads: “Internment is a preventive administrative measure and cannot be considered a penal sanction. It is nevertheless mentioned here under the same head[ing] as simple imprisonment, because the authors of the Convention wished to make it possible for the military courts of the Occupying Power to give persons guilty of minor offences the benefit of conditions of internment (emphasis added) provided for in Article 79 et seq. The provision was a humane one and was intended to draw a distinction between such offenders and common criminals.” Commentary on GC IV, op. cit. (note 19), pp. 343–344.

22 Ibid., Art. 78, p. 367.

23 AP II, Art. 4 (2) (b).

24 ICCPR, Art. 4(1).

25 See e.g. Report of the Working Group on Arbitrary Detention, UN Doc. E/CN. 4/2004/3, 15 December 2003, para. 60 (“in no event may an arrest based on emergency legislation last indefinitely”), and InterAmerican Commission on Human Rights — Annual Report, 1976, OAS Doc. OEA/Ser.L/V/II.40, Doc. 5 corr. 1 of 7 June 1977, Section II, Part I (“the declaration of a state of emergency or a state of siege cannot serve as a pretext for the indefinite detention of individuals, without any charge whatever. It is obvious that when these security measures are extended beyond a reasonable time they become true and serious violations of the right to freedom”).

26 ICCPR, Art. 4 (2).

27 GC IV, Art. 147.

28 ICCPR, Art. 4(1).

29 ICCPR, Art. 9 (2); Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, Principles 10; 11 (2); 12 (1) (a) and (2); 14; UN General Assembly resolution 43/173 of 9 December 1988 (hereinafter “Body of Principles”).

30 AP I, Art. 75 (3), Body of Principles, Principle 14.

31 GC IV, Arts. 106 and 138.

32 Ibid., Art. 136.

33 Ibid., Art. 143.

34 Ibid., Arts. 106, 107, 137 and 138.

35 Body of Principles, op. cit. (note 29), Principles 12 and 16 (1).

36 See also UN Declaration on the Protection of All Persons from Enforced Disappearance, Art. 10 (1), and Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, recommended by UN Economic and Social Council, Principle 6.

37 See Art. 36 of the Vienna Convention on Consular Relations. In international armed conflicts, the official Information Bureaux and the Central Tracing Agency are mechanisms through which the adverse party is informed of the internment of its nationals (GCIV, Arts. 136–141). In non-international armed conflicts the ICRC is also available to facilitate contact between a person deprived of liberty and the State of which he or she is a national, provided that person consents to such notification.

38 Body of Principles, op. cit. (note 29), Principle 32. See also Human Rights Committee, General Comment No. 29, para. 11.

39 Human Rights Committee, Ibid., para. 15.

40 Commentary on GC IV, op. cit. (note 19), Art. 78, pp. 368–369.

41 Ibid., Art. 43, p. 260.

42 ICCPR, Art. 9 (4).

43 Body of Principles, op. cit. (note 29), Principle 32. See also Human Rights Committee, General Comment No. 29, para. 11.

44 Human Rights Committee, Ibid., para. 15.

45 Commentary on GC IV, op. cit. (note 19), p. 261.

46 Ibid.

47 See, inter alia, Body of Principles, op. cit. (note 29), Principles 17 and 18.

48 Ibid., Principle 18.

49 Ibid., Principle 32.

50 See, inter alia, GC IV, Arts. 106, 107 and 116.

51 See GC IV, Art. 5, and Commentary on GC IV, op. cit. (note 19), p. 56.

52 AP II, Art. 5 (2) (b).

53 Body of Principles, op. cit. (note 29), Principle 19.

54 Under Art. 102 of the Fourth Geneva Convention, Internee Committees also have the right to make representations to, inter alia, the ICRC.

55 It should be noted that under human rights soft law the legal counsel, a family member or another person who has knowledge of the case may also make submissions regarding the treatment of a person in administrative detention. See Body of Principles, op. cit. (note 29), Principle 33 (1) and (2).

56 See Art. 3 common to the four Geneva Conventions.

57 See Art. 5 (3) of the Statutes of the International Red Cross and Red Crescent Movement (1986).

58 E.g. the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment set up by the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.

59 E.g. the UN Commission on Human Rights Working Group on Arbitrary Detention.