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  This module is a resource for lecturers  

 

Key contemporary issues

 

The issues discussed here, which are non-exhaustive, are intended to illustrate some of the recurring themes that have arisen in relation to detention in the context of counter-terrorism efforts.

Non-Discrimination

One other important overarching principle applicable to arrest and detention matters is that of non-discrimination. As with any other human right and fundamental freedom provided for under the International Covenant on Civil and Political Rights (ICCPR; articles 2 and 26) as well as other regional human rights instruments, the principle of non-discrimination applies equally in this context.

In practice, however, some challenges can exist with the practical implementation of these principles. For example, some measures adopted by States have been applied only to foreign nationals and not to their own citizens, such as security detention measures considered below. On other occasions, discriminatory practices adopted have been on grounds of race or ethnicity. As, e.g., the African Commission on Human and People's Rights (ACommHPR) has found, arrests and detentions carried out "on grounds of ethnic origin alone, ... constitute arbitrary deprivation of the liberty of an individual", which was in clear violation of article 6 of the African Charter ( Organisation Contre la Torture and others v. Rwanda, 1996, para. 28).

Similarly, the United Nations Working Group on Arbitrary Detention (WGAD) has expressed concern at discriminatory arrest and detention practices which, in a counter-terrorism context, can often include not only terrorist criminals, but also "a broad range of people, including but not limited to: women and children; persons with disabilities ...; human rights defenders and activists; persons engaged in social protest; ... minorities based on national or ethnic, cultural, religious and linguistic identity; ... non-nationals, including migrants, refugees and asylum seekers, internally displaced persons ..." (General Assembly, Human Rights Council report A/HRC/36/38, para. 46). Where a person's liberty has been deprived on discriminatory grounds, WGAD is of the view that this will be arbitrary since the arrest or detention violated a person's right to equal protection of the law and freedom of discrimination contrary to article 26 of ICCPR (and article 7 Universal Declaration of Human Rights (UDHR)) (General Assembly, Human Rights Council report A/HRC/36/37, para. 47; Human Rights Committee General Comment No. 35 CCPR/C/GC/35, para. 17). Worryingly, WGAD considers the deprivation of liberty on discriminatory grounds to be a growing trend across geographical regions.

In making its determinations on this issue, WGAD has taken a number of factors into account, including whether:

(1)  The deprivation of liberty was part of a pattern of persecution against the detained person (e.g. a person was targeted on multiple occasions through previous detention, acts of violence or threats);

(2)  Other persons with similarly distinguishing characteristics have also been persecuted (e.g., several members of a particular ethnic group are detained for no apparent reason, other than their ethnicity);

(3)  The authorities have made statements to, or conducted themselves toward, the detained person in a manner that indicates a discriminatory attitude (e.g., female detainees threatened with sexual violence, or a detainee is held in worse conditions or for a longer period than other detainees in similar circumstances);

(4)  The context suggests that the authorities have detained a person on discriminatory grounds or to prevent them from exercising their human rights (e.g., political leaders detained after expressing their political opinions or detained for offences that disqualify them from holding political office);

(5)  The alleged conduct for which the person is detained is only a criminal offence for members of his or her group (e.g., criminalization of consensual same-sex conduct between adults) (General Assembly, Human Rights Council report A/HRC/36/37, para. 48).

 

Arrest

Human rights concerns regarding a person's lawful arrest have been a recurring theme, including in the post 9/11 counter-terrorism context. They have ranged from the manner of the person's arrest, such as the questionable and/or disproportionate use of force to effect arrest, to failures to ensure that all associated procedural guarantees are fully respected and followed. With respect to the latter, an underpinning concern has always been the risk of abuse of executive power which not only deprives a person of the due process safeguards to which they are entitled, including the right to a fair trial with its accompanying safeguards, but which leads to further human rights violations, such as prolonged arbitrary and incommunicado or even secret detention, torture and, in the most extreme circumstances, to a person's death.

Where the role of military and intelligence services is broadened to incorporate law enforcement functions, including arrest and detention without adequate accompanying training, processes and accountability mechanisms, there is an accompanying increased risk of human rights violations.

Significantly, in a global context greatly concerned with preventing and countering violent extremism (see Module 2), there is evidence suggesting that such human rights violations generally impair and hinder rather than facilitate effective counter-terrorism efforts. For example, as one expert commented in the International Commission of Jurists' report, Assessing Damage: Urging Action in 2009:

Tougher laws and regulations were enacted to arrest and detain persons for prolonged periods without committing to trial ... These laws which ostensibly meant to be for the eradication of violent forms of agitation in fact helped to fuel the unrest and the existing dissatisfaction against the state ... Repressive laws that were hawked as counter-terrorist legislation played no minor part in strengthening the resistance and fuelling disaffection against the state in the face of mass arrests, detention, abduction and extra-judicial killings and disappearances. (International Commission of Jurists, 2009, pp. 44-45).

The remainder of this section focuses on three key areas: the use of force to effect an arrest or in detention; and two of the primary safeguards for protecting persons deprived of their liberty, namely the right to be informed and the right to be brought promptly before a judge.

 

The use of force to effect an arrest or in detention

Law enforcement officials are permitted in certain circumstances to use force in order to carry out an arrest. Such use of force must meet the twin requirements of 'necessity' and 'proportionality'. In the words of article 3 of the Code of Conduct for Law Enforcement Officials (resolution 34/169) adopted by the General Assembly, "[l]aw enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty."

Regarding the use of firearms, the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials state that:

Law enforcement officials shall not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life. (Principle 9, emphasis added).

The Basic Principles add that "[e]xceptional circumstances such as internal political instability or any other public emergency may not be invoked to justify any departure from these basic principles." (Principle 8).

Where an individual is taken into police custody in good health, but is subsequently found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation as to how those injuries were caused, failing which a clear issue of torture or inhuman or degrading treatment arises ( Selmouni v. France, 1999, para. 87). The burden of proof is on the authorities to explain and justify any injuries sustained. For this reason, keeping careful records in relation to those in detention is crucial. Medical examination of those detained is important both to prevent abuse and also to protect the officials involved in detention against false allegations. Any injuries suffered by an individual in detention must be fully investigated and, if necessary, criminal proceedings brought against those responsible.

 

The right to be informed

According to article 9(2) of ICCPR, "[a]nyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him." Article 9(2) ICCPR imposes two requirements for the benefit of persons who are deprived of liberty. First, they shall be informed, at the time of arrest, of the grounds for the arrest. This is important since arrest marks the commencement of the deprivation of a person's liberty. This requirement applies broadly to the reasons for any deprivation of liberty, also outside the context of criminal justice. Secondly, those charged with an offence, shall be promptly informed of any charges against them, namely to be given information regarding criminal charges ( Ahamadou Sadio Diallo, 2010, para. 77).

The right to a fair trial also requires that any person charged with an offence be informed of the nature and cause of the charge(s) brought. This fair trial guarantee applies to all persons charged with an offence, whether they are arrested and detained for the purposes of the investigation or remain at liberty. The two rights (in article 9(2) and article 14 ICCPR) are therefore related but have a different scope. (See Module 11).

The other accompanying requirement is that the arrested person be informed "promptly" of any charges being brought, though this may not necessarily be at the same time as effecting the arrest. One major purpose of requiring that all arrested persons be informed of the reasons for the arrest is to enable them to seek release if they believe that the reasons given are invalid or unfounded. The reasons must include not only the general legal basis of the arrest, but enough factual specifics to indicate the substance of the complaint, such as the wrongful act and the identity of an alleged victim. Oral notification of reasons for arrest satisfies the requirement. The reasons must be given in a language that the arrested person understands. Ordinarily this information must be provided immediately upon arrest. In exceptional circumstances, such immediate communication may not be possible. For example, a delay of several hours may be required before an interpreter can be present. ICCPR, ECHR and the American Convention all include provisions on the right to be informed. However, the African Charter does not. Nevertheless, the ACommHPR has stated that the right to be informed forms part of the right to a fair trial ( Media Rights Agenda v. Nigeria, 2000, para. 43).

One other important right which should be mentioned here is the right of a detained foreign national to have their diplomatic mission informed about their detention. This is provided for by the 1963 Vienna Convention on Consular Relations. Specifically, article 36(1)(b) provides that in such circumstances, "if [the foreign national] so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner".

 

The right to be brought promptly before a judge

As regards those charged with a criminal offence, article 9(3) of ICCPR provides that "anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power". A primary reason for this is that the risk of executive abuse of those being detained is greater prior to their formal arrest/being charged and first appearance before a court of law when they formally enter the criminal justice process, with its accompanying due process safeguards.

There are four very important elements to this provision, each of which is explained in turn.

Anyone arrested or detained on a criminal charge:  This element refers to anyperson arrested or detained on suspicion of criminal activity, whether formal charges have been made or not. In the case of Marques de Morais, for instance, a journalist was arrested and detained by rapid intervention police and criminal investigators. He was detained and interrogated for 40 days before he was charged with defamation of the country's president and brought before a judge, who ordered his release pending trial. The Human Rights Committee made clear that the right to be brought "promptly" before a judge applied as of the moment of his deprivation of liberty on suspicion of having committed an offence, even though charges were formalized only 40 days later (CCPR/C/83/D/1128/2002, para. 6.3).

"Prompt" presentation before a judicial officer:  In the case of Marques de Morais, the Human Rights Committee stated that the "right to be brought 'promptly' before a judicial authority implies that delays must not exceed a few days" (CCPR/C/83/D/1128/2002, para. 6.3). For most offences, any delay longer than 48 hours between the initial deprivation of liberty and presentation before a judge will be excessive, unless justified by exceptional circumstances. The Human Rights Committee has found that detention for three days prior to presentation before a judicial officer breached the requirement of promptness (CCPR/C/76/D/852/1999, para. 7.4). A similar approach has been adopted by European Court of Human Rights (ECtHR) (which makes an assessment on "promptness" on a case by case basis "according to its special features" ( De Jong, Baljet and van den Brink, 1984, para. 52; TW v. Malta, 1999, para. 42)) and the African Commission of Human and People's Rights (ACommHPR). In all cases, the delays established by domestic law must be respected, also in case they should be stricter than what is required by international standards.

It is also widely acknowledged that in the case of serious and complex offences, such as many terrorist offences, a delay of more than 48 hours might in some cases be justified. ECtHR is of the view that in the case of terrorism related investigations, a delay of up to (but not exceeding) four days before a detainee is brought before a judge might be justifiable ( Brogan and others v. UK, 1988, paras. 61-62; see also Philippines Republic Act 9372, sect. 18). Such determinations will always be dependent upon the particular facts of a case. On the facts in Brogan, where the four applicants had been detained on suspicion of terrorism offences and had been detained for between four days, six hours to six days, sixteen and a half hours, ECtHR found that the requirement of promptness under article 5(3) ECHR had been violated (pp. 44-46). There is always the accompanying concern that the longer a person is held in the custody of law enforcement officials without judicial control, the greater the risk of their being ill-treated.

The detainee must be brought to appear physically before the judge:  Bringing the detainee before the judge is an automatic obligation. It does not depend on the detainee asserting his right to be brought before a judge. The physical presence of detainees at the hearing gives the opportunity for inquiry into the treatment that they received in custody. It also facilitates immediate transfer to a remand detention centre if continued detention is ordered.

Judge or other officer authorized by law to exercise judicial power:  The official before whom the detained person is brought must be independent and impartial. Therefore, not only must the "court" be established by law, but it must either be independent of the executive and legislative branches or must enjoy judicial independence in deciding legal matters in proceedings that are judicial in nature. In the Kulomin case, the pre-trial detention of a man charged with murder was repeatedly extended by the public prosecutor (as provided for by Hungarian law at the time). The Human Rights Committee emphasized that a public prosecutor lacks the 'institutional objectivity and impartiality' required by article 9(2) of ICCPR (CCPR/C/50/D/521/1992, para. 11.3).

Significantly too, the Human Rights Committee has determined that this right to challenge the lawfulness of detention before court extends to all situations of deprivation of liberty, including detention for the purposes of criminal proceedings (CCPR/C/44/D/248/1987, para. 6.4), military detention (CCPR/C/81/D/962/2001, para. 5.2), security detention (CCPR/C/79/Add.81, para. 438), counter-terrorism detention (CCPR/C/80/D/1051/2002, para. 10.2), immigration detention (CCPR/C/59/D/560/1993, para. 9.5), and detention for extradition (CCPR/C/38/D/291/1988, para. 7.4). Of special note here, WGAD has stated repeatedly that these procedural guarantees may never be suspended nor rendered impracticable, whether in situations of armed conflict (General Assembly, Human Rights Council report A/HRC/16/47, para. 51), states of emergency (Economic and Social Council, Commission on Human Rights report 1995/31, para. 25(d)) and counter-terrorism measures (Economic and Social Council, Commission on Human Rights report E/CN.4/2004/3, para. 84; see too Economic and Social Council, Commission on Human Rights E/CN.4/2006/120), including since the remedy of habeas corpus is one of the most effective means of preventing and combating arbitrary detention.

Article 9(3) of ICCPR is closely connected with article 9(4) of ICCPR which provides that "anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful". This is linked to the fundamental right of habeas corpus, namely the right of an individual to know and to challenges the grounds for his detention (see Module 11). This is linked also to the right under article 2(3) ICCPR (and article 8 UDHR) for those individuals whose rights have been violated to have access to an effective remedy. WGAD is strongly of the view "that the right to challenge the lawfulness of detention before court is a self-standing human right, the absence of which constitutes a human rights violation per se" (General Assembly, Human Rights Council report A/HRC/19/57, para. 61). Yet it is a right commonly denied where a detained person has not been formally charged or presented before a judge, including when he has been detained incommunicado (General Assembly, Human Rights Council opinion A/HRC/WGAD/2012/33; General Assembly, Human Rights Council opinion A/HRC/WGAD/2012/38), or detained administratively (General Assembly, Human Rights Council opinion A/HRC/WGAD/2012/19; General Assembly, Human Rights Council opinion A/HRC/WGAD/2012/22).

Of note too, including in circumstances where, e.g., a suspected terrorist has been extraordinarily rendered, article 17(2)(f) International Convention for the Protection of All Persons from Enforced Disappearance provides that persons with a legitimate interest, such as the relatives of the person deprived of his liberty, are able to exercise rights similar to those provided for in articles 9(3)-(4) on the detained person's behalf, including for the purpose of securing his release where he is being unlawfully detained. These issues can be cross-cutting including across a number of human rights treaty bodies and special mandate holders, e.g., the Committee against Torture (CAT/C/CUB/CO/2, para. 8) and the Working Group on Enforced or Involuntary Disappearances (General Assembly, Human Rights Council report A/HRC/4/41/Add.1, paras. 61-63). Significantly, the Human Rights Committee has described enforced disappearances, which violate numerous substantive and procedural provisions, as "a particularly aggravated form of arbitrary detention" (Human Rights Committee General Comment No. 35 CCPR/C/GC/35, para. 17). (See further Module 8).

These fundamental rights have been equally provided for within the major regional human rights treaties. For example, article 7(1)(a) of the African Charter guarantees "the right to an appeal to competent national organs against acts violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force". Notably, ACommHPR has found that "the writ of habeas corpus was developed as the response of common law to arbitrary detention, permitting detained persons and their representatives to challenge such detention and to demand that the authority either release or justify all imprisonment" ( Constitutional Rights Project and Civil Liberties Organization v. Nigeria, 1999, para. 23). The relevant provision of the American Convention is article 7(6). As with ACommHPR, the Inter-American Court of Human Rights, in its advisory opinion OC-8/87 (30 January 1987) on habeas corpus in emergency situations, emphasized the significance of this provision. It found that the protection is among "those judicial remedies that are essential for the protection of various rights whose derogation is prohibited by article 27(2) and that serve, moreover, to preserve legality in a democratic society". ECtHR has similarly developed a large body of jurisprudence in relation to article 5(4) of ECHR (see e.g. Sher and others v. UK, 2015; M.S. v. Belgium, 2012).

 

Detention

 

Requirement of non-arbitrary detention, lawfulness, reasonableness and necessity of detention

The requirement that detention not be arbitrary has a number of implications for the circumstances in which it is permissible to detain an individual. First, even if authorities have complied with the letter of national law, detention will be arbitrary where they have acted in bad faith, for instance, detaining a person on specious grounds of mental health in order to subsequently enable extradition for criminal offences. Second, detention must pursue a proper purpose (such as to prevent tampering with the evidence, including influencing witnesses, to prevent flight, for purposes of punishment after a finding of guilt) and must be necessary n order to pursue that aim.

Adequate procedural safeguards must be in place to prevent the arbitrary exercise of the power of arrest or detention. They should include:

  • Judicial oversight and prompt access to courts to challenge lawfulness of detention;
  • A requirement as to the threshold that must be met (such as reasonable suspicion) before the power to detain can be exercised;
  • Reasons for detention, of which the detainee is informed at the point of detention;
  • Time limits on the period during which an individual can be lawfully detained before review of detention is necessary;
  • Access to a lawyer; and
  • Records as to the place, time, whereabouts and reasons for detention as well as records as to the circumstances and conditions of detention.

In addition, the exercise of the power to arrest or detain must be reasonable  in the circumstances. In the Mukong case the Human Rights Committee explained that "arbitrariness is not to be equated with 'against the law' but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law" (CCPR/C/51/D/458/1991, para. 9.8) .

Fair proceedings and habeas corpus

Proceedings concerning the lawfulness of detention must have judicial character, be fair and ensure 'equality of arms' between the parties ( A and others v UK, 2009, paras. 203-204). This does not mean that all guarantees of a fair trial as set forth in article 14 of ICCPR and corresponding provisions in regional treaties must be fully ensured in all cases. For instance, whether it will be necessary for the court to hold an oral hearing and hear witnesses will depend on the type of detention in question and its duration.

Where a person in detention has no access to legal assistance, whether because it is denied by the authorities or because the detainee has insufficient means and no legal aid is available, this will often mean that, in practice, the detainee has no means of challenging the decision to detain him. In the Berry case (Human Rights Committee CCPR/C/50/D/330/1988),Mr. Berry was in remand detention on murder charges. The Human Rights Committee found that although Mr. Berry had, theoretically, available to him the possibility of applying for judicial review of his detention (the writ of habeas corpus), in practice he could not make any such application without legal assistance which had not been made available to him. The Committee concluded that there had been a violation of the right to challenge the lawfulness of detention.

Where persons are detained on suspicion of involvement with terrorism, the authorities might perceive a need not to disclose to the detainee some of the grounds and documents on which the suspicions are based. In other words, the authorities might seek to rely on 'secret evidence' to justify the detention. The right to a fair trial requires disclosure of all material evidence in possession of the prosecution, both for and against the accused. Sometimes it might, however, be necessary to withhold certain evidence from the accused on grounds of witness protection, of national security, or of other public-interest grounds. The same applies in proceedings concerning the lawfulness of detention ( habeas corpus proceedings). A fair balance between the authorities' interest in keeping information from the detainee and the detainee's right to be in a position to effectively challenge his detention must be struck, as illustrated by the following case study (see Module 11).

Remand detention

The starting position for remand detention - i.e. detention whilst awaiting trial - is that "[i]t shall not be the general rule that persons awaiting trial shall be detained in custody" (article 9(3) ICCPR). That remand detention is to be the exception rather than the rule is also stated in the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (principle 39). There are two main requirements which must be respected in relation to prisoners remanded in custody awaiting trial:

  • First, the grounds on which a person may be detained prior to trial are limited.
  • Second, even where one of these grounds is applicable, the period of time during which a prisoner is held on remand must be reasonable.

Detention pending trial must be based on an individualized determination that it is reasonable and necessary, and that measures alternative to custody (such as a night time curfew, daily reporting to police, the surrender of a passport, or even a so-called 'electronic bracelet') will not be sufficient. International human rights bodies have clearly stated that pre-trial detention must not be mandatory for all persons charged with a particular crime, rather an element of discretion should remain. Therefore, a law making pre-trial detention mandatory for those charged with terrorism offences was deemed to be permissible (see e.g. Human Rights Committee CCPR/CO/79/LKA, para. 13).

The individualized determination that remand detention is reasonable and necessary concerns at least two elements: first, that there is a reasonable suspicion that the accused has committed an offence; and, second, that there are grounds justifying detention pending trial.

According to most international human rights bodies, there are three main grounds on which remand detention may be justified:

  • Risk of absconding;
  • Risk of the accused interfering with the investigation, e.g. by unduly influencing witnesses or evidence;
  • Risk of commission of a further offence.

Clearly such grounds can be applicable to preventive detention during trial proceedings, especially when in connection with serious international crimes such as terrorism, genocide, crimes against humanity and so forth.

Some international bodies have added the preservation of public order as a fourth ground for pre-trial detention (IACommHR, 2002, para. 123). The Human Rights Committee, however, has warned that "reasons of public security" is too vague a standard (Human Rights Committee concluding observations CCPR/C/BIH/CO/1, para. 18). In a similar vein, in its Report on Terrorism and Human Rights, IACommHR warned that where "a person is held [on remand] in connection with criminal charges for a prolonged period of time … without proper justification, … such detention becomes a punitive rather than precautionary measure that is tantamount to anticipating a sentence" (IACommHR, 2002, para. 223). Such abuse of remand detention violates the presumption of innocence. To try to minimize such risks, procedural safeguards should be in place, including to ensure an 'equality of arms' in any related court proceedings between all of the parties including the accused person (see further A and others v. UK, 2009, para. 204).

Furthermore, the facilities where a person on remand is detained are also important. Significantly, he or she should not be returned to police custody, but rather be transferred to a separate facility under different authority due to the increased risk of ill-treatment whilst remaining in police custody. As the Sub-Committee on Prevention of Torture noted its report on the Maldives, where at the time suspects could be kept in police custody for up to seven days, whose comments are of wider applicability:

For the prevention of ill-treatment police investigations and custody should be separated both institutionally as functionally. The exercise by the police of both investigative and custodial functions may lead to the increased risk that police investigators try to exert strong influence over the persons held in custody or even to resort to ill-treatment for investigative purposes. (CAT/OP/MDV/1, para. 77).

 

Armed conflict

Situations of detention, or 'internment', are highly prevalent during armed conflicts, where they are governed by international humanitarian law (IHL), international human rights law and, in some circumstances, by domestic law depending on the categorization of the conflict as an international armed conflict (IAC) or as a non-international armed conflict (NIAC). The exact interplay between these legal regimes, including differences between them, can be context specific. The term 'internment' here is defined as "the non-criminal detention of a person based on the serious threat that his or her activity poses to the security of the detaining authority in relation to an armed conflict" (ICRC, 2014, p. 3).

Under IHL, relevant rules govern: (1) the classification of detainees, which has been controversial and politicised within some counter-terrorism settings (see Module 6); (2) the treatment of detainees; (3) material conditions of detention (e.g., ICRC Customary IHL Rule 121, that "Persons deprived of their liberty must be held in premises which are removed from the combat zone and which safeguard their health and hygiene"); (4) fair trial rights (where the commission of a criminal offence relating to the armed conflict is alleged); and (5) grounds and process for internment. Though the nature and scope of the rights specified under IHL varies between IAC (more extensive) and NIAC (less extensive) situations, a fundamental overarching principle applicable to all contexts is that anyone hors de combat is always to be treated humanely and afforded the core, baseline protections specified in Common article 3 of the four Geneva Conventions 1949.

Detention in situations of international armed conflict

IHL provides a legal basis for the detention of persons suspected of being engaged in terrorist activities, though which specific rules will apply will be determined by whether the detainees (or 'internees') are classified as combatants or as civilians, depending on whether or not terrorist non-State actors satisfy the criteria for 'combatants'. In situations of IAC, Geneva Conventions III and IV permit internment, i.e. the detention outside the context of criminal proceedings, of prisoners of war and certain categories of civilians respectively. Though Geneva IV does not technically apply outside of an IAC context, important analogies and principles may be drawn from it with respect to how persons engaged in transnational terrorist activities should be treated in NIAC situations.

Prisoners of war (POW):  These include combatants captured by the detaining State. Their detention is not a form of punishment, but only aims to prevent further participation of these persons in the conflict. Under Geneva Convention III, a detaining State "may subject prisoners of war to internment" (article 21). POWs cannot be prosecuted by the State for acts of violence committed in times of war, but only for the infringement of IHL such as grave breaches of the Geneva Conventions (see Module 4). Under article 5 of the Geneva Convention III, where any doubt exists as to whether or not a detained person qualifies for POW status under article 4, that person should be treated as such and enjoy the full protection afforded by Geneva Convention III "until such time as their status has been determined by a competent tribunal". This provision only relates to determining the status of a POW, however, and does not otherwise determine the legality of detention (Sandoz, Swinarski and Zimmermann, 1987, para. 1745). Since POWs are deemed to be a security threat, there is no obligation in IAC for a detaining State to provide judicial review of POW internment. POWs must be released when active hostilities cease unless they are to be tried for war crimes or other violations of IHL or are serving a sentence for such offences (article 4).

Civilians who pose a serious threat to the security of the detaining power:  Civilians - if the security of the State makes it necessary (article 42(1) where a person is detained in a State Party's own territory), or for "imperative reasons of security" (article 78(1) where a person is held in occupied territory) - may be subject to internment under Geneva Convention IV. This is viewed as one of the Convention's most severe "measures of control" (article 27, 41 and 78). Persons falling into this category include civilians who are directly participating in hostilities, sometimes referred to as "unprivileged belligerents". This Convention provides varying standards for permitted instances of internment, including their accompanying processes (see e.g. articles 43(1) and 78(2)). These include whether the internee is detained within a State's territory or whether detention has occurred within an occupied territory. Internment must cease as soon as the detainee is no longer a threat for the security of the detaining State and, in any event, "as soon as possible after the close of its hostilities" (article 46(1), 132, 133(1); Additional Protocol I, article 75(3)). The detained person has the right to request a review of the decision on internment by a court or administrative board (or a "competent body" if in an occupied territory (article 78(1))), review must be conducted expeditiously, and the need for continuation of internment must be reviewed periodically (articles 41, 43 and 78).

Additional Protocol I is relevant here too. Of especial importance, not in terms of procedural protection, is article 75(3) which mirrors the core elements of article 9 of ICCPR in providing 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. Except in cases of arrest or detention for penal offences, such persons shall be released with the minimum delay possible and in any event as soon as the circumstances justifying the arrest, detention or internment have ceased to exist.

Article 75(6) is also important in that it states that all of the article 75 protections will continue to apply to any "persons who are arrested, detained or interned for reasons related to the armed conflict ... until final release, repatriation or re-establishment, even after the end of the armed conflict".

Notably, the Human Rights Committee observed in its General Comment No. 35 that "[d]uring international armed conflict, substantive and procedural rules of international humanitarian law remain applicable and limit the ability to derogate, thereby helping to mitigate the risk of arbitrary detention." (CCPR/C/GC/35, para. 66). This is reflective of the ICRC's customary IHL study findings, reflected in Rule 99, that "arbitrary deprivation of liberty is prohibited" in both IAC and NIAC contexts (Henckaerts and Doswald-Beck, 2005, Rule 99).

Detention in situations of non-international armed conflict

The treaty rules of IHL applicable to NIACs - i.e. all situations with an intensity of violence that amounts to an armed conflict but do not fulfil the criteria of an "international armed conflict" - do not regulate under what circumstances persons who pose a security threat can be detained. In addition, the opinions of legal experts differ regarding the extent to which there are customary IHL rules providing a legal basis for deprivation of liberty.

Detention is one of the 'causes' that will trigger the protections available under Common article 3 to the 1949 Geneva Conventions for those persons not taking active part in hostilities. This legal protection applies equally to detention that has occurred for the purposes of internment. Additional Protocol II covers the deprivation of liberty in the context of NIAC. Specifically, article 4 ("fundamental guarantees", including that those deprived of their liberty "be treated humanely, without any adverse distinction") and article 5 ("persons whose liberty has been restricted" - see interest box below) are of particular relevance here. Furthermore, where a person is detained on grounds of having committed a criminal offence, then the applicable due process rights must be given to him also (see article 6). As the Commentary to article 5(1) explains, "it is appropriate to recall its far-reaching scope. It covers both persons being penally prosecuted and those deprived of their liberty for security reasons, without being prosecuted under penal law" (Sandoz, Swinarski and Zimmermann, 1987, para. 4568). These articles provide for procedural safeguards which supplement the basic substantive rights of Common article 3. As the commentary to article 5(1)(b) further makes clear, its intended purpose is "to make sure that persons deprived of their liberty will be provided with essential minimum requirements: food, drinking water, hygiene and shelter", reflecting the minimum standards for IAC situations provided for under Geneva Convention III (articles 22, 26 and 27) and Geneva Convention IV (articles 85, 89 and 90) ( ICRC, para. 4573) as well as the essential elements of article 10 of ICCPR on the humane treatment of anyone deprived of their liberty.

Controversies that have arisen with respect to detention and internment in an armed conflict setting have often been attributable to the fact that there are less rules governing NIACs compared with rules under IHL governing IACs, despite the fact that NIACs are the more prevalent form of conflict. This has been the case especially regarding the classification of those often detained counter-terrorism operations, together with the absence of any specified grounds or procedural safeguards for NIAC internees under either Common article 3 or Additional Protocol II. Such issues are complicated further by the fact that, in parallel, there is ongoing disagreement regarding the exact nature of the application of international human rights law in NIAC settings. For such reasons, a case by case assessment is necessary, since a combination of national laws, together with IHL and international human rights obligations, are likely to govern detention matters.

Matters may be complicated further where issues of extra-territoriality are at play, e.g., when the military of more than one State is involved and/or more than one non-State actor. Common article 3, being silent on grounds of lawful internment, has resulted in differing opinions on the legality of internment when there is an extra-territorial element to the NIAC. One view is that the lawfulness of internment can only be established if it is explicit, as in the Fourth Geneva Convention and cannot simply be implied, or that particular wording is required if its legal basis is a Chapter VII United Nations Security Council resolution. An alternative view, shared by ICRC, is that an inherent power to intern a person exists under both customary and treaty IHL, which would seem to be a plausible argument given that internment constitutes a deprivation of liberty which often occurs during armed conflict situations; it is not prohibited by Common article 3; and express mention of "internment" is made in Additional Protocol II, which is ratified by 168 States (ICRC, 2014, p. 7).

A regular, additional source of disagreement in such contexts has been the extra-territorial effect of obligations under human rights law. In seeking to offer increased clarity on such important matters, the ICRC issues institutional guidelines in its Procedural Principles and Safeguards for Internment/Administrative Detention in Armed Conflict and Other Situations of Violence (ICRC, 2007, Annex I), the baseline of which is that the minimum legal standard that should inform internment decisions is "imperative reasons of security", thereby emphasizing the exceptional nature of internment (ICRC, 2014, pp. 8-9). Consequently, internment may not be used as a vehicle for interrogation or intelligence gathering purposes, as punishment or for deterrence purposes (ICRC, 2014, p. 9). Similarly, in a concerted international effort to address some of the ongoing uncertainties regarding the classification and treatment of detainees captured during multi-national counter-terrorism operations occurring in NIAC situations, the 'Copenhagen Process' took place over a five-year period resulting in the publication of principles and guidelines which, whilst not legally binding, are influential. (See further Oswald and Winkler, 2012).

Despite ambiguity regarding the application of rules, human rights law is still applicable, in particular article 9(1)-(2) and (4) of ICCPR: detention must be provided by law, legal procedures must be respected, and detention must not be otherwise arbitrary; any person deprived of liberty in such a situation is entitled to be brought before a court and to receive a decision on the lawfulness of detention without delay. Under IHL, detainees must at all times be treated humanely (ICRC, 2005; ICRC 2007, Annex I). In this regard, the use of military courts and commissions have also been criticised by WGAD for contravening the laws on this issue. (See Module 11).

Humane treatment of detainees

Various provisions of international humanitarian law applicable in non-international armed conflict, in particular Common article 3 of the Geneva Conventions of 1949 and article 5 of Additional Protocol II to the Geneva Conventions offer protection to detained persons. Both of these articles provide a number of basic guarantees applicable to all persons deprived of their liberty in the context of a non-international armed conflict and in all circumstances. These obligations exist alongside article 10(1) of ICCPR which states that "All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person".

Taking both of these provisions together the following obligations and prohibitions apply:

Prohibitions

  • Violence to the life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment.
  • Collective punishments.
  • Outrages upon personal dignity, in particular humiliating and degrading treatment.
  • Rape, enforced prostitution and any form or indecent assault.
  • Threats to commit any of the foregoing acts.
  • Places of internment or detention must not be located near to areas of hostilities and detainees shall be evacuated in the event that their personal safety is placed at risk by hostilities. 
 

Obligations

  • Detainees are provided with adequate food and drinking water and safeguarded as regards health, hygiene, the rigours of the climate and dangers caused by military operations.
  • Detainees are allowed to receive individual or collective relief.
  • Detainees are allowed to practice their religion.
  • Detainees are provided with acceptable working conditions, if made to work.
  • Women are accommodated separately from men.
  • Detainees are allowed to communicate with their families.
 

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