Beyond Process: The Material Framework for Detention and the Particularities of Non-International Armed Conflict
© T.M.C. Asser Press and the authors 2015Terry D. Gill, Robin Geiß, Robert Heinsch, Tim McCormack, Christophe Paulussen and Jessica Dorsey (eds.)Yearbook of International Humanitarian Law 2013Yearbook of International Humanitarian Law1610.1007/978-94-6265-038-1_2
2. Beyond Process: The Material Framework for Detention and the Particularities of Non-International Armed Conflict
International Committee of the Red Cross, Geneva, Switzerland
2.2.1 Degree of Confinement
2.2.3 Other IHL Provisions
Deprivation of liberty in non-international armed conflict (NIAC) has suffered no shortage of attention over the last decade with issues surrounding the legal basis and procedural requirements for detention having received the most focused attention. In the course of these debates, international lawyers have looked to rules found in international humanitarian law (IHL) applicable in international armed conflict (IAC) for guidance, and many have argued that as a matter of either law or policy, the procedural aspects of detention in NIAC should be approached in a similar manner. As these discussions have evolved, their focus on grounds and procedure has left another core aspect of IHL relatively unnoticed, along with its potential role in the evolution of NIAC detention law and policy: in addition to providing a procedural framework for detention in armed conflict, IHL also provides material framework for detention that addresses the physical conditions in which detainees are to be held and the way detention and detention facilities are managed. It is often overlooked that in IAC, IHL’s accounting for the unique situation of armed conflict does not stop at the right to detain or the grounds and procedures for doing so, but also informs extensive rules on the material aspects of detention. The result is a series of essential and unique protections—often going beyond those found in human rights law—designed to address specific vulnerabilities caused by armed conflict. This article calls attention to this aspect of IHL and asks whether the logic and reasoning that informs the material framework for detention established by the Geneva Conventions should have a role to play in the evolution of law and policy governing the material framework for detention in NIAC.
KeywordsArmed conflictInternational armed conflictNon-international armed conflictDetentionDeprivation of libertyHumane treatmentMaterial conditions of detention
The author is a legal advisor for the International Committee of the Red Cross (ICRC). The views expressed in this article reflect the author’s opinions only and not necessarily those of the ICRC.
Deprivation of liberty in non-international armed conflict (NIAC) has suffered no shortage of attention from international lawyers over the last decade.1 States experiencing internal armed conflicts have repeatedly passed counterterrorism laws enabling them to detain outside the ordinary criminal justice system, triggering debate and discussion around the international legality of long-term preventive detention regimes. Meanwhile, extraterritorial detention operations during the conflicts in Iraq and Afghanistan have given rise to challenging questions about the detention policies instituted by multinational forces and their consistency with international law. Over the years, there have been many attempts to bring clarity to these issues. Courts and legislatures have grappled with questions related to jurisdiction, the authority to detain and the procedures for doing so.2 Multinational forces have revised standard operating procedures, focusing greater attention on ensuring that they are equipped with regulations that contain adequate detention provisions. Diplomatic initiatives such as the Copenhagen Process have aimed to produce concrete principles governing detention in extraterritorial coalition operations.3 And currently, the International Committee of the Red Cross (ICRC) is consulting with States to strengthen the law of armed conflict, or international humanitarian law (IHL), when it comes to detention in all types of NIACs, whether extraterritorial or purely internal.4
For many lawyers, it is the issues surrounding the permitted grounds and the required procedural safeguards for detention that have required the most urgent attention.5 In the simplest terms, the debate centers on the extent to which the particular circumstances generated by NIAC justify departures from how grounds and procedures for detention are ordinarily handled outside armed conflict. Situations of NIAC often prompt implicated States to establish exceptional detention regimes, ones that might allow prolonged administrative detention without criminal charge, prevent access to counsel, or dispense entirely with judicial supervision.6 The debate quickly converges around the question of who may be detained, on what basis, and subject to what limitations. Policies have varied greatly among States, but the more they have moved away from ordinary prosecutions for criminal offenses, the more these deviations from the norm have given rise to accusations of arbitrary deprivation of liberty and other concerns.7 These arguments have in turn met with legal and policy arguments justifying the measures as necessary and lawful in the exceptional situation of armed conflict.8
When faced with the particularities of armed conflict, one would ordinarily look to IHL to determine whether, in light of the circumstances, a certain course of action is lawful. Inconveniently however, IHL applicable in NIAC does not provide clear guidance on this issue. This reality has given rise to a well-worn debate and discussion on the applicability and adequacy of human rights law and the precise contours of customary IHL.9 But it has also sparked thinking on the extent to which an analogy can be drawn to the law of international armed conflict (IAC). In IACs, the rules of IHL do indeed diverge from the assumptions and requirements of human rights law, permitting and regulating a procedural framework for detention that is specifically designed to take into account the realities of armed conflict. The law applicable in IAC directly confronts the questions of who may be detained and what the outer limits of that detention authority are. And it also provides a procedural regime that serves to protect against arbitrary detention.10 Looking to IAC rules for guidance, some argue that as a matter of either law or policy, the procedural aspects of detention in NIAC should be approached in a similar manner.
As these arguments have developed, their focus on grounds and procedure has left another core aspect of IHL relatively unnoticed, along with its potential role in the evolution of NIAC detention law and policy: in addition to providing a procedural framework for detention in armed conflict, IHL also provides material framework for detention that addresses the physical conditions in which detainees are to be held and the way detention and detention facilities are managed. It is often overlooked that in IAC, IHL’s accounting for the unique situation of armed conflict does not stop at the right to detain or the grounds and procedures for doing so, but also informs extensive rules on the material aspects of detention.
Approached from the perspective of humane treatment and associated prohibitions against torture and other abuse, one might assume that, unlike the procedural framework, the rules related to the material framework simply mirror the logic and content of human rights law and standards, and indeed, to a large extent they do. Upon closer examination, however, it becomes evident that provisions in the Geneva Conventions that govern the material detention environment in IAC also carry their own logic reflecting the particularities of armed conflict. The result is a series of essential and unique protections—often going beyond those found in human rights law—designed to address specific vulnerabilities caused by armed conflict. These protections ensure, for example, that detainees are kept safe from the dangers of hostilities, that information about their detention is transmitted through mechanisms designed to reach across enemy lines, and that persons detained purely for security reasons are not held in close confinement or treated as criminals.
This article calls attention to this aspect of IHL and asks whether the logic and reasoning that informs the material framework for detention established by the Geneva Conventions should not have a role to play in the evolution of law and policy governing the material framework for detention in NIAC. It will first examine how IHL applicable in IAC takes into account the particularities of armed conflict, demonstrating the ways that the rules governing the material framework for detention are tailored to the specific vulnerabilities and challenges generated by such situations. It will then explain the relative scarcity of current IHL on material aspects of detention in NIAC and explore the extent to which the underlying logic of IHL rules applicable in IAC might be relevant to the detention environment in NIAC as well. The point of comparison when identifying the aspects of IHL uniquely tailored for armed conflict will of course be human rights law. However, this article will not try to resolve questions related to the interplay of IHL with human rights treaties and standards. Rather, it will simply highlight unique aspects of IAC law that might be useful to bear in mind as the discussion and debate surrounding detention in NIAC continues.
2.2 The Material Framework for Detention in IAC
The material framework for detention in IAC is governed for the most part by the Third and Fourth Geneva Conventions of 1949 (GC III and GC IV). GC III applies to prisoners of war, essentially members of an adversary State’s regular armed forces, members of certain irregular armed groups fighting for the adversary, and certain authorized civilians who accompany the armed forces, such as members of military aircraft crews, war correspondents, and supply contractors.11 GC IV, in turn, applies to those who are not protected by GC III—or the other Geneva Conventions protecting sick, wounded and shipwrecked—and who “at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.”12
The circumstances created by IAC have had a significant bearing on Geneva Convention rules governing the material framework for detention. The types of detainees foreseen by GC III and GC IV are, in simple terms, members of the enemy State’s armed forces or other non-nationals of the detaining State determined to be hostile but not charged with a crime. Accordingly, the types of vulnerabilities foreseen are not just those that arise in any deprivation of liberty, but those that flow from detention by one’s adversary in an environment of intense, organized violence between two opposing parties. Accordingly, in addition to many of the rules that one expects to see in any instrument regulating material conditions of detention, Geneva Convention rules reflect a number of additional conflict-specific considerations.
IAC-tailored detention provisions appear throughout the GC III and GC IV, but certain areas are particularly illustrative of the extent to which the material framework for detention required by the law has a very specific situation in mind. This section focuses on two such areas of protection. First, it discusses the degree of confinement permitted in an internment facility, demonstrating how the material detention environment is adapted to the types of detainees and reasons for detention foreseen in IAC. Second, it discusses the rules related to registration and notification of detention, demonstrating IHL’s accounting for the heightened vulnerability to disappearance caused by the existence of the conflict and the breakdown in communications between the warring parties. Other areas in which the Geneva Conventions provide armed-conflict-specific protections are also briefly mentioned.
2.2.1 Degree of Confinement
The term “confinement” in this section and in the IHL provisions that it cites refers to the severity of the restrictions placed on the physical movement of a person already deprived of liberty.13 The physical space to which a person is restricted can range, for example, from a large, fenced-in camp to a solitary cell. For purposes of clarity, it bears noting that the term “confinement” is used to mean different things in different provisions of IHL. For example, “unlawful confinement” in Article 147 of GC IV is synonymous with arbitrary deprivation of liberty, not the unlawful application of overly severe restrictions on an already detained person.14 As noted, this discussion only deals with the latter notion.
When it comes to criminal detention, Geneva Convention rules on confinement do not differ drastically from what human rights law might require; however, when it comes to internment, IHL’s distinctive material framework for detention becomes immediately apparent. Internment is a type of deprivation of liberty for security purposes ordered by the executive without criminal charges being filed.15 An inherently non-punitive measure of control, the purpose of internment is to limit the movements (and therefore activities) of certain individuals, rather than to charge them with an offense and subsequently punish or rehabilitate them. The occurrence of internment in IAC can stem from a number of conflict-related circumstances. For example, upon capture, most members of the armed forces of an enemy State will enjoy combatant’s privilege and be immune from prosecution under domestic law for actions taken that complied with IHL. Nonetheless, the detaining power will be unwilling to allow them to return to combat, giving rise to the need for an alternative framework to govern their deprivation of liberty. Alternatively, the parties to the conflict might encounter civilians—in particular certain nationals of the adversary State or inhabitants of occupied territory—who participate in hostilities or otherwise pose a security threat. If necessary, they will impose various measures of control on these individuals as well, measures up to and including deprivation of liberty.
IHL foresees and regulates these realities. The Third Geneva Convention accepts that prisoners of war (POWs) may be interned until the cessation of active hostilities, but provides them with a host of protections.16 GC IV foresees the likelihood of internment of civilians but simultaneously limits the circumstances in which it is permitted: for aliens on the territory of a party to the conflict, GC IV ensures that internment is only carried out when “the security of the detaining power makes it absolutely necessary”;17 for inhabitants of occupied territory, it permits internment only when necessary for “imperative reasons of security”.18
Beyond regulation of whether and in what circumstances internment is permissible, IHL applicable in IAC regulates the conditions of detention and degree of confinement to which internees may be subjected and ensures that the severity of deprivation of liberty is consistent with internment’s non-punitive nature. By restricting the degree of confinement to which detaining authorities in IACs may subject internees, IHL at once anticipates the reality that armed conflict will give rise to detention without charge and ensures that such persons are not treated as criminals.
GC III expressly prohibits holding prisoners of war in “close confinement,” unless it is in connection with penal or disciplinary sanctions, or unless it is necessary to safeguard their health.19 Illustrating the relatively lenient detention environment, GC III provides that the Detaining Power “may impose on [POWs] the obligation of not leaving, beyond certain limits, the camp where they are interned, or if the said camp is fenced in, of not going outside its perimeter”.20 The ICRC Commentary to GC III adds that:
Internment involves the obligation not to leave the town, village, or piece of land, whether or not fenced in, on which the camp installations are situated, but it does not necessarily mean that a prisoner of war may be confined to a cell or a room. Such confinement may only be imposed in execution of penal or disciplinary sanctions, for which express provision is made.21
Although GC IV does not explicitly prohibit close confinement of internees in the same manner as GC III, it does contain a number of contextual indications of the degree of confinement that should be applied to internees. First, as noted above, GC IV frames internment as a way of controlling the activities of individuals for security reasons. It specifically provides that protected persons generally may not be subjected to “any other measure of control more severe than that of assigned residence or internment.”22 The grouping of internment with assigned residence, and its framing as the most severe measure that can be taken indicate circumstances that would certainly amount to a deprivation of liberty, but that would stop short of the circumstances one typically associates with criminal detention.
Additionally, provisions within GC IV that do mention “confinement” are limited to cases of judicial proceedings or disciplinary measures. For example, the GC IV addresses the humane treatment of “protected persons who are confined pending proceedings or serving a sentence involving loss of liberty” and it ensures that women who are accused of offences “shall be confined in separate quarters […]”.23
GC IV also refers to confinement as something above and beyond what would normally occur in an internment environment. It requires, for example, that “in case of offences against discipline, confinement awaiting trial shall be reduced to an absolute minimum for all internees, and shall not exceed 14 days. Its duration shall in any case be deducted from any sentence of confinement.”24 In other words, internees are presumably deprived of their liberty without being subjected to physical restrictions that would amount to confinement.
Finally, it should be noted that certain provisions in GC IV actually consider the possibility of internees temporarily leaving the place of internment. For example, they are to be permitted, as far as possible, “to visit their homes in urgent cases, particularly in cases of death or serious illness of relatives.”25 Additionally, children who are interned must be allowed to attend schools “either within the place of internment or outside.”26 Although these provisions do not deal with the degree of confinement while in the camp as such, they are indicative of the overall restrictiveness of the detention regime.
The point at which a restriction on physical movement within a place of detention becomes severe enough to amount to confinement is not clear. However, that such a distinction exists is sufficient to illustrate the general notion that the drafters of the Conventions intended conditions of detention for internees to be relatively unrestrictive.
2.2.2 Registration and Notification
Rules governing registration and notification are another area in which IHL is specifically adapted to take into account the particular circumstances of international armed conflict. As a general matter, secret detention and incommunicado detention are universal targets of international legal preventive measures. Rules related to recording the identities and other details about detainees, notifying their families and other individuals and entities, and ensuring ongoing family contact are at the heart of the legal obligations established to prevent disappearance and protect against ill treatment. Registration and notification provisions in human rights law—particularly the Convention on Enforced Disappearances—and provisions in IHL all work toward these ends. However, unlike human rights law, the Geneva Conventions contain several provisions specifically designed to overcome obstacles generated by situations of armed conflict.
With respect to the obligation to register or record the details of detainees, IHL and human rights law contain largely similar provisions. Differences lie primarily in the formal requirements for recording information and in the details regarding the type of information to be recorded. For example, while human rights law focuses on the requirement of maintaining official registers and records that are then to be made available to a number of third parties,27 GC IV requires each Detaining Power to “establish an official Information Bureau responsible for receiving and transmitting information in respect of the protected persons who are in its power.”28 It then requires that information be supplied to the bureau in a number of different circumstances.29 Compared to IHL, the Convention against Enforced Disappearances also focuses to a greater extent on recording not only the time and place of the detention, but also the identity of the authority that deprived the person of liberty, the authority that ordered the deprivation of liberty, grounds for the deprivation of liberty, and the authority responsible for supervising the deprivation of liberty.30