Protection of persons deprived of their liberty in relation to international armed conflicts

The four Geneva Conventions, Additional Protocol I to the Geneva Conventions (AP I), and customary IHL provide a comprehensive legal regime applicable to deprivation of liberty in relation to IAC. Geneva Convention III relative to the Treatment of Prisoners of War (GC III) regulates the internment of prisoners of war (PoWs),Footnote ²⁰ and Geneva Convention IV relative to the Protection of Civilian Persons in Time of War (GC IV) that of civilians falling under the scope of persons protected under the Convention.Footnote ²¹ AP I supplements this regime, including with regard to persons not falling into the categories defined in GC III and GC IV.Footnote ²²

IHL of IAC regulates deprivation of liberty in virtually all its facets. GC III and GC IV provide grounds on which PoWs or civilians may be interned,Footnote ²³ including the applicable procedure,Footnote ²⁴ and define at what point deprivation of liberty must end.Footnote ²⁵ In all cases of internment, the Geneva Conventions and AP I prohibit any form of ill-treatment,Footnote ²⁶ and they provide detailed rules on conditions of detention, ranging from rules on adequate places of internment to the provision of adequate food and access to the outdoors, as well as registration and family contact.Footnote ²⁷ They also include specific protections for women and children in situations of internment.Footnote ²⁸ Moreover, IHL regulates the transfer of PoWs and civilian internees. It prescribes in which circumstances it would be permissible to transfer such persons, and stipulates a transferee's return if the receiving power fails, in any important way, to grant protections as set down in the Conventions.Footnote ²⁹ GC IV emphasizes the prohibition of transfer in cases in which the transferee “may have reason to fear persecution for his or her political opinions or religious beliefs”.Footnote ³⁰ As a result, in light of the comprehensive regulation of deprivation of liberty in the universally ratified Geneva Conventions, as well as the additional rules found in AP I (if applicable) and customary IHL, it appears that for the time being IHL applicable in IAC provides a robust protection framework for persons deprived of their liberty.Footnote ³¹

Protection of persons deprived of their liberty in relation to non-international armed conflicts

Unlike the comprehensive and robust detention regime defined with regard to IAC, IHL of NIAC contains significantly fewer rules protecting persons deprived of their liberty. Article 3 common to the four Geneva Conventions – which applies in all NIACs – provides essential safeguards against all forms of ill-treatment, requires fair-trial guarantees in cases of penal prosecutions, and requires minimum guarantees on conditions of detention as part of the requirement of humane treatment.Footnote ³² Yet, common Article 3 does not provide explicit rules regarding the specific protection needs of certain groups of detainees, or grounds and procedures for internment. Moreover, while common Article 3 has to be interpreted as prohibiting transfers of detainees “to another authority when those persons would be in danger of suffering a violation of those fundamental rights [protected under common Article 3] upon transfer”,Footnote ³³ it does not provide explicitly for any procedural aspects of the prohibition, such as pre- or post-transfer measures.

Additional Protocol II to the Geneva Conventions (AP II) develops and supplements common Article 3, especially with regard to fundamental guarantees of humane treatment, conditions of detention, the treatment of certain groups of detainees, and penal prosecutions.Footnote ³⁴ In particular, with regard to “persons deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained”, AP II defines general rules regarding medical care and examinations, the provision of “food and drinking water”, “safeguards as regards health and hygiene”, protection against the “rigors of the climate and the dangers of the armed conflict”, the receiving of “individual or collective relief”, the practise of religion and spiritual assistance, working conditions, separate quarters for men and women, communication with the outside world, the possible evacuation of detainees, and education of children.Footnote ³⁵ It does not define grounds or procedures for internment, and does not contain specific rules on detainee transfers.

While AP II provides important additions to the fundamental guarantees defined in common Article 3, it is not yet universally ratified and applies only to NIACs meeting the threshold defined in the Protocol.Footnote ³⁶ Moreover, even with regard to conditions of detention, “one must ask whether its provisions really are sufficient to address the humanitarian concerns related to conditions of detention”.Footnote ³⁷ AP II's rules are nowhere near as detailed as those found in the Geneva Conventions.

In addition to IHL treaty rules, customary IHL provides a number of important protections for persons deprived of their liberty in relation to NIAC. These include, in particular, fundamental guarantees regarding the treatment of detainees,Footnote ³⁸ rules on judicial process,Footnote ³⁹ and some rules regarding conditions of detention and the treatment of specific groups of detainees.Footnote ⁴⁰ Customary IHL does not define grounds and procedures for internment or rules and procedures on detainee transfer. Moreover, as customary law is often formulated in rather more general terms, it sets out broad regulations that often fail to “provide sufficient guidance to detaining authorities on how an adequate detention regime may be created and operated”.Footnote ⁴¹

As a result, it appears that IHL applicable in NIAC provides strong rules prohibiting all forms of violence and inhumane treatment and guaranteeing a fair judicial process. Moreover, AP II and customary IHL include a number of essential yet basic guarantees regarding conditions of detention and the protection of vulnerable groups. In stark contrast to IHL of IAC, however, IHL of NIAC may not provide sufficient regulations regarding conditions of detention (especially if AP II does not apply and if rules of customary IHL are questioned), and it contains no explicit rules on grounds and procedures of internment or procedural rules on the transfer of detainees.

To what extent can international human rights law strengthen the protection of persons deprived of their liberty in relation to armed conflict?

In IACs, IHL norms take precedence over IHRL norms concerning deprivation of liberty for the simple reason that States have agreed on the relevant provisions of IHL specifically for their application in IAC.Footnote ⁴² In NIAC, however, the situation is not clear-cut: IHL of NIAC provides limited rules on some issues, and no rules on others. In contrast, human rights treaties contain important provisions regarding, for example, grounds and procedures for deprivation of liberty or the prohibition of non-refoulement,Footnote ⁴³ detailed jurisprudence exists on a number of these points, and human rights standards contain detailed rules on conditions of detention or the protection of women or children deprived of their liberty.Footnote ⁴⁴ This note is not the place to examine in great detail important legal questions such as how exactly human rights norms and standards apply during armed conflicts, or how possible conflicts with contradicting IHL norms can be resolved. Instead, it is argued that despite the continuous applicability of human rights law during armed conflict, a reiteration and clarification of essential protections applicable in armed conflict would be of great practical value because it could reinforce and complement existing rules and standards in situations where their application is questioned or restricted, or when they do not provide sufficient guidance. At the same time, it is clear that any legally non-binding outcome to strengthen IHL protecting persons deprived of their liberty can only supplement existing law and standards and is without prejudice to any legal obligations that parties to armed conflicts might have under IHL or IHRL.

There are three main reasons for a strengthening of IHL applicable in NIAC despite existing human rights law and standards. First, the extent to which human rights law and standards apply to different conflict situations remains subject to some debate; second, IHRL instruments were primarily developed to apply outside armed conflict and do not always provide sufficient guidance for conflict-specific challenges; and third, debate continues on whether and to what extent non-State parties to armed conflicts have IHRL obligations.

With regard to the first point, the International Court of Justice, regional human rights courts and IHRL treaty bodies have found in unambiguous terms that relevant IHRL treaties continue to apply during armed conflict, both internally and extraterritorially.Footnote ⁴⁵ Yet discussions among States continue, especially on the question of to what extent IHRL treaties apply extraterritorially or in times of armed conflict, and how they relate to applicable IHL.Footnote ⁴⁶ This is particularly relevant with regard to grounds and procedures for internment and questions of non-refoulement, which are not explicitly regulated under IHL but are defined under some IHRL treaties or in relevant jurisprudence. A particular issue with regard to IHRL are derogations in times of emergency or of armed conflict, including during extraterritorial NIACs. Indeed, the question of to what extent States are permitted to derogate from substantive and procedural rights regarding deprivation of liberty is one that comes up increasingly in practice – yet jurisprudence seems unsettled. In 2015 and 2016, for example, three European States derogated from some of their human rights obligations under regional and universal human rights law treaties.Footnote ⁴⁷ In each case, the right to liberty was among the provisions from which States derogated. It is clear that derogations are only permitted within strict limitations;Footnote ⁴⁸ moreover, relevant courts or treaty bodies oversee these derogations and will opine on their lawfulness. However, such scrutiny will only take place well after the derogation and related measures have been implemented by States in accordance with their own assessment of the situation.

Moreover, relevant IHRL treaties do not contain detailed provisions on conditions of detention. Instead, conditions of detention have been addressed in universally recognized standards such as the Mandela Rules, the Bangkok Rules and the Beijing Rules.Footnote ⁴⁹ Such instruments set out minimum standards of humane treatment for prisoners and constitute an important and widely used reference framework in practice, but they focus on how States operate their regular penitentiary institutions and might not specifically take into account the particular circumstances of deprivation of liberty in armed conflicts.Footnote ⁵⁰ Against this background, some States have openly questioned the applicability of these standards to persons deprived of their liberty in relation to armed conflicts.Footnote ⁵¹ Moreover, the Mandela Rules, for example, explicitly recognize that “it is evident that not all the rules are capable of application in all places and at all times”.Footnote ⁵²

This leads to a second key challenge for the applicability of international human rights law and standards to all NIAC situations. Human rights law and jurisprudence regarding grounds and procedures of internment, and to some extent also regarding the principle of non-refoulement, are based on the assumption of a functioning State administration, including a judicial system able to provide all required due process guarantees.Footnote ⁵³ Thus, in purely internal NIACs between government forces and one or more non-State armed groups, “domestic law, informed by the State's human rights obligations and IHL, constitutes the legal framework governing the procedural safeguards that must be provided by the State to detained members of such groups”.Footnote ⁵⁴ Given that the State's armed forces operate “at home” and can rely on the State's judicial infrastructure, in such situations it should be expected that the State continues applying human rights guarantees to all conflict-related detainees. Yet NIACs can also lead to situations in which State institutions or judicial systems disintegrate, or where already dysfunctional judicial systems face the extra burden of persons deprived of their liberty in relation to the armed conflict. Such challenges also emerge if States operate outside their territory without having their regular legal system readily available. In such contexts, States often face severe challenges to providing similar procedural guarantees to every detainee as they would in times of peace. For example, it might be very difficult to provide all internees with the possibility of having their deprivation of liberty reviewed by a court or to provide a court with the requisite level of evidence to obtain a confirmation of internment. As one commentator emphasizes:

To be clear, practical challenges in applying legal rules or standards do not lead to their inapplicability. However, they certainly pose the question of which humanitarian minimum guarantees need to be ensured in all circumstances.

Third, human rights law has traditionally been understood as only binding States and not non-State actors, meaning that it would only bind one side of the conflict. There is a growing practice by the UN Security Council, the UN Human Rights Council and UN special procedures of demanding different kinds of armed groups to respect fundamental human rights and humanitarian norms, such as the prohibition of torture.Footnote ⁵⁶ Most armed groups would not, however, have the capacity to comply with the full range of human rights law obligations, unless they perform government-like functions on which the implementation of many human rights norms is premised.Footnote ⁵⁷ Many groups lack an adequate apparatus for ensuring the fulfilment of the broad scope of standards on conditions of detention, or the capacity to deprive persons of liberty in compliance with IHRL requirements on grounds and procedures for detention.Footnote ⁵⁸ Thus, even if international law further develops in a direction of requiring respect for certain human rights norms by non-State armed groups, only the most sophisticated groups would be able to perform deprivation of liberty in compliance with all relevant IHRL rules and standards.

As a result, an IHL document providing minimum guarantees and concrete implementation guidance on conditions of detention and the treatment of specific groups of detainees, grounds and procedures of internment, and rules on detainee transfer could provide an operationally relevant bottom line on the protection of persons deprived of their liberty in relation to NIACs, and strengthen their protection. Being specifically envisaged and accepted for armed conflict situations, it would need to carefully calibrate military and humanitarian considerations, and be designed to apply to all parties. Any such outcome would need to find ways to provide – at once – relevant guidance to parties to armed conflicts with very different capacities. The primary purpose and benefit of such an instrument would be to provide all parties to a NIAC with clear guidance on the treatment required in any conflict situation, regardless of where the conflict takes place. It could thereby complement applicable human rights protections without compromising or questioning their applicability.Footnote ⁵⁹

The consultation process

General considerations raised by States regarding deprivation of liberty in relation to NIAC

The following paragraphs present, in a fairly synthesized manner, a non-exhaustive list of general issues raised during the consultation process. They cannot, however, go into the details of the discussions among States on specific elements of protection.Footnote ⁷⁰

Generally, States consider it important that their forces provide NIAC-related detainees with adequate conditions of detention, including specific protections for certain groups of detainees. Yet the degree of protection that States feel able to provide depends on the circumstances: while detainees held in ordinary detention facilities away from the battlefield could, in principle, be provided with protections similar to those applicable outside armed conflicts, this might not be the case in situations of “field detention”, meaning persons deprived of their liberty in the context of hostilities and subsequently held in temporary or transitional places of detention at operational bases. In such circumstances, which are normally of limited duration, available infrastructure or food might not allow for the implementation of similar standards as in stable penitentiary facilities. Likewise, States considered that not all protections which are important during long-term detention, such as providing a variety of food or access to education, will be needed during short-term detention. In order to enable detaining forces to provide at least essential protections, participants emphasized the need for advance planning. This would include material aspects, such as the development of detention infrastructure, as well as non-material preparations, such as considering the composition of ground forces in order to ensure, for example, that female staff are available to search or guard female detainees.

Consultations also confirmed that grounds and procedures for internment are necessary to protect individuals from arbitrary detention. It was re-emphasized that internment needs to be distinguished from criminal detention because it does not constitute detention as punishment for past criminal conduct but rather is preventive deprivation of liberty imposed for security reasons in relation to armed conflict. Accordingly, one main point the ICRC drew from the consultations was that States “generally view the underlying justification for internment in all cases to be the existence of a threat posed by the individual being detained”.Footnote ⁷¹ Yet States voiced different opinions regarding a definition of possible grounds for internment. While some held the view that an adequate standard would be “imperative reasons for security” as found with regard to the detention of civilians in GC IV, others disagreed with applying this standard outside the GC IV context, and still others argued that formal membership in an armed group could constitute a sufficient ground for internment.Footnote ⁷²

Without prejudice to the applicable legal obligations, States held that key procedural safeguards need to be in force at the time of capture,Footnote ⁷³ including initial and periodic review of the decision to intern, and some form of representation or assistance to the internee in relation to the process. While consultations confirmed that a review body would need to constitute a real check on the decision-making power of the detaining authority, different attributes of such a body were discussed, including whether it needs to be “independent and impartial” or “objective and impartial”, the latter placing emphasis on the view that no judicial review would be required. Likewise, the composition of the review body was discussed, with some States stressing that a degree of flexibility is required on this issue in order to address the particular circumstances of, for example, extraterritorial NIACs in which States may not have their full judiciary available. There was, however, convergence on the view that every internee needs to be informed of the reasons for their internment, and that the process needs to be fair and to consider all relevant information.

Regarding the transfer of detainees, States emphasized the difference between operations on the State's own territory and detention abroad. While States generally considered the principle of non- refoulement under human rights or refugee law applicable regarding persons detained on their own territory, the issue appeared to be more complex if States operate extraterritorially and consider transferring a detainee either to host-State authorities or other States. In such situations, the types of risks that would preclude transfer in addition to arbitrary deprivation of life, torture and cruel, inhuman or degrading treatment, or acts prohibited under common Article 3, would depend on a particular State's international obligations.Footnote ⁷⁴ States also discussed advantages and challenges with regard to practical steps to avoid these risks, such as pre-transfer assessments of the receiving authority's detention policies and practices as well as the transferee's individual condition and fears, and post-transfer monitoring.

As a matter of fact, in the course of NIACs, not only State authorities but also non-State armed groups may detain individuals, and persons deprived of their liberty by armed groups have similar protection needs as those detained by States. Since in a number of cases armed groups do not have at their disposal detention infrastructure or judicial institutions comparable to those of States, their detention practices are likely to pose particular humanitarian challenges. In the course of State consultations, different States expressed the concern that regulating detention by armed groups risks granting these groups legitimacy under international law. Moreover, States cautioned that the great diversity among armed groups, in particular with regard to their level of internal organization and capacity, would make it difficult to identify a common set of expectations applicable to all groups. A third identified challenge was how to strengthen IHL and simultaneously incentivize respect for these norms.

These concerns show that the issue of detention by non-State armed groups is of particular sensitivity.Footnote ⁷⁵ However, it needs to be recalled that in IHL instruments, States have always found adequate clauses and careful formulations clarifying that being regulated by IHL norms does not affect the legal status of parties to a NIAC.Footnote ⁷⁶ While IHL imposes essential humanitarian obligations on armed groups, States remain free to criminalize the activity of non-State parties to a NIAC under national law. Moreover, potential outcomes of the process should ideally set out clear minimum protections with which all parties to armed conflicts can comply, while at the same time providing guidance on how essential protections should be implemented in circumstances in which parties have greater capacities.