As one of the leaders of the Polish workers, Lech Walesa was detained several times during the 1970s. He led the shipyard strike and later negotiated the Gdansk agreement of 31 August 1980. In December 1981, Walesa, along with several thousand others, was arrested when General Jaruzelski imposed martial law and “suspended” the labour movement “Solidarnosc” (Solidarity). Walesa was interned in a country house in a remote part of Poland, close to the then Soviet border, and was visited three times by ICRC delegates. During this period, the ICRC visited 4,850 other internees (79 visits to 24 different places of detention) and it provided assistance and helped to restore contact between internees and their families abroad. At the same time and in conjunction with the Polish Red Cross and the League of Red Cross and Red Crescent Societies (as it was then known), the ICRC carried out an extensive assistance programme for the benefit of the civilian population which was in dire need of basic goods.

International human rights law abhors a legal black hole. It applies wherever a State exercises its jurisdiction, not only in peacetime but also during armed conflict, as a compliment to humanitarian law. The deprivation of liberty is subject to certain conditions, and even initially lawful detention becomes arbitrary and contrary to law if it is not subject to periodic review. Indefinite detention is incompatible with Article 9 of the International Covenant on Civil and Political Rights. While temporary derogation from this provision is allowed in Article 4 of the ICCPR, such derogation is only possible “in time of public emergency which threatens the life of the nation” and “to the extent strictly required by the exigencies of the situation” Persons deprived of their liberty are entitled to a prompt trial or release, and in cases of arbitrary detention, they are entitled to compensation. Neither the war on terror nor restrictive immigration policies justify indefinite detention.

Thousands of individuals have been detained abroad in the context of the “war on terror”, both during the armed conflicts in Afghanistan and in Iraq and as a result of transnational law-enforcement operations. This paper argues that, notwithstanding contrary positions expounded by some States, the protections of international humanitarian law and/or international human rights law remain applicable to these individuals, wherever detained, and examines recent decisions of domestic courts and international bodies which appear to reveal a reassertion of international standards.

Although international humanitarian law and human rights law were originally intended to operate in different areas of competence, thirty years of visits by human rights mechanisms to places of detention in parallel with visits made by the International Committee of the Red Cross have shown that they are clearly complementary in several respects. First, there is complementarity in terms of action, in that different but not competitive visits are made. Secondly, through the formulation of increasingly precise legal rules there is complementarity in codification. Lastly, there is institutional complementarity through cooperation between the respective bodies. The result is broader and above all more effective protection for detainees — whatever the legal status assigned to them — which, if it cannot entirely eliminate the possibility of torture and cruel, inhuman and degrading treatment or punishment, can at least help to prevent and remedy such abuses.

The author describes the history and the premises and characteristics of the action of the ICRC in favour of persons deprived of liberty. He believes that the efficiency of its approach, in particular the visits to detainees, is closely linked to the respect of a constant and rigorous working method including the modalities of the visits and the confidentiality of the interventions to the authorities. Finally, the implication of the ICRC is to be inscribed in a large process and is complementary to the efforts of the authorities, other organizations and mechanisms as well as of the international community at large. Its approach however remains unique in several aspects.

Acts of torture are conceptualized as crimes of obedience, which are inevitably linked to crimes at higher levels of the hierarchy, where orders are issued, policy is formulated, and the atmosphere conducive to acts of torture is created. The present analysis suggests several conditions under which torture becomes an instrument of State policy and the authority structure of the State is fully utilized to implement that policy: the perception by State authorities that the security of the State is under severe threat — which, at the macro-level, can justify torture and, at the micro-level, contribute to its authorization; the existence of an elaborate and powerful apparatus charged with protecting the security of the State — which, at the macro-level, may lead to the recruitment and training of professional torturers as part of that apparatus and, at the micro-level, contribute to the routinization of torture; and the existence of disaffected ethnic, religious, political, or other groups within (or under the control) of the State that do not enjoy full citizenship rights — which, at the macro-level, may lead to their designation as enemies of the State and appropriate targets for torture and, at the micro-level, their dehumanization.

Despite the recurrence of hostage-taking through the ages, the subject of hostages themselves has thus far received little analysis. Classically, there are two distinct types of hostages: voluntary hostages, as was common practice during the Ancien Régime of pre-Revolution France, when high-ranking individuals handed themselves over to benevolent jailers as guarantors for the proper execution of treaties; and involuntary hostages, whose seizure is a typical procedure in all-out war where individuals are held indiscriminately and without consideration, like living pawns, to gain a decisive military upper hand. Today the status of “hostage” is a combination of both categories taken to extremes. Though chosen for pecuniary, symbolic or political reasons, hostages are generally mistreated. They are in fact both the reflection and the favoured instrument of a major moral dichotomy: that of the increasing globalization of European and American principles and the resultant opposition to it — an opposition that plays precisely on the western adherence to human and democratic values. In the eyes of his countrymen, the hostage thus becomes the very personification of the innocent victim, a troubling and haunting image.

Warring parties are increasingly unequal and the principle of equality of arms does not apply to them. This asymmetry in warfare has many ramifications. The militarily weaker party is tempted to have recourse to unlawful methods of warfare in order to overcome the adversaries' strength. The expectation of reciprocity as a fundamental motivation for respecting the law is often illusory and replaced instead with perfidious behaviour; covert operations substitute for open battles, “special rules” are made for “special situations”. The fight against international terrorism seems to constitute the epitome of this kind of warfare. “Elementary considerations of humanity” as enshrined in article 3 common to the 1949 Geneva Conventions however constitute universally binding rules for all — even unequal and asymmetrical — parties to any situation of armed violence. Furthermore, attacks on humanitarian organizations have showed that humanitarian relief may be contrary to belligerents' interests, or, even worse, that attacks on humanitarian workers may be part of their agenda. Humanitarian actors must be aware of these facts and adapt their working methods so as to be able to continue to provide impartial assistance, based solely on the needs of the victims of armed violence.

This article explains the rationale behind a study on customary international humanitarian law recently undertaken by the ICRC at the request of the International Conference of the Red Cross and Red Crescent. It describes the methodology used and how the study was organized and summarizes some major findings. It does not, however, purport to provide a complete overview or analysis of these findings.