You are on page 1of 41

PROTECTION OF

DETAINEES
IN CONFLICTS
Detention rules and standards
• International Humanitarian Law (IHL)
(Geneva Conventions, Additional Protocols, CIL, …)
• International Human Rights Law
• "Soft law" e.g. International Minimum Standards
• National law
• Status of forces agreement, RoE etc
Why detention?

• Capture not kill – human right to life


• Intelligence
• Security
• ‘Winning hearts and minds’
• Criminal prosecution
When can you detain?

• International armed conflict:


„ GCIII: protection of POWs
„ GCIV: Art. 76 Protected persons accused of
offences shall be detained in the occupied
country, and if convicted they shall serve
their sentences therein
„ GCIV Art. 42. The internment or placing in
assigned residence of protected persons
may be ordered only if the security of the
Detaining Power makes it absolutely
necessary.
When can you detain?

• Non-international armed conflict:


„ Common Art 3.

„ Additional Protocol II:

§ Art 5: “persons whose liberty


has been restricted”
§ Art 6: “prosecution and
punishment of criminal offences
related to the armed conflict”
Who can detain?

• IAC:
„ Occupying power
„ Party to a conflict – the “detaining power”
• NIAC:
„ Party to a conflict
„ Non-state party to conflict?
„ Government of the State in conflict
„ Militia/irregular armed forces?
How long can you detain?
• Armed conflict: ‘cessation of hostilities’
• Occupation: one year after military operations
• Criminal detention: in accordance with national
law
• Internment: as long as the security situation
exists
4 areas of protection
• Humane treatment
• Conditions of detention
• Re-establishment of family links
• Respect for judicial guarantees or procedural safeguards
Treatment of detainees
• Absolute prohibition of all forms of
torture, cruel, inhuman or degrading
treatment or punishment
•"ill-treatment"
•physical and psychological

• Acts of torture or other ill-treatment


must be investigated and punished
International armed conflicts
(IAC)
Treatment of detainees
n … entitled, in all circumstances, to respect for
their persons, their honour, their family rights,
their religious convictions and practices, and
their manners and customs
n … shall at all times be humanely treated
n … shall be protected especially against all acts
of violence or threats thereof and against insults
and public curiosity.
n … all protected persons shall be treated with the
same consideration …, without any adverse
distinction based, in particular, on race, religion
or political opinion.
Non International armed conflicts
(NIAC)
Common Art. 3
Geneva Cs
Persons taking no active part in the
hostilities, including persons hors de
combat, shall in all circumstances

n be respected and protected


n treated humanely, without any
adverse distinction
n violence to life and person prohibited
n taking of hostages prohibited
n outrages upon personal dignity
prohibited
n extrajudicial sentences and
executions prohibited
Conditions of detention
Detained persons must…
übe held away from combat zone
ühave their personal details recorded
ühave adequate food, water, clothing, shelter,
medical care, hygienic conditions
üaccess to open air for exercise, access to books
übe allowed to practice their religion
ürespect for their personal belongings
übe allowed to communicate with their families
and should receive family visits
Children in detention

• Special
protections
• Separated
• Education
• Physical activity
• Contact with
family members
Judicial Guarantees
1. Fair
1. Publicly
2. Without
1. Information Declared
Prohibition undue delay
of 2. Judicial Supervision of 2. Right to
3. Public
retroactive detention Appeal
application 4. Reg. Const.
3. Trial within a reasonable 3. Non bis in
of law Tribunal
time idem

OFFENCE ARREST INDICTMENT TRIAL JUDGMENT APPEAL

1. No arbitrary detention
2. Individual criminal responsibility
3. Presumption of innocence
4. Prohibition on compelling accused to testify
against themselves or confess guilt
5. Right to legal counsel
Judicial guarantees
(Art. 105 GC III / Art.71-2 GCIV / Art. 75 AP I / Com Art. 3
/ Art. 6 AP II)

• informed without delay of the particulars of the


alleged offence
• all necessary rights and means of defence
• nullum crimen/poena sine lege - non retroactivity
• presumption of innocence
• right to be tried in one's presence
• right to public judgment
Judicial guarantees
(Art. 105 GC III / Art.71-2 GCIV / Art. 75 AP I / Com Art.
3 / Art. 6 AP II)

• not to be compelled to testify against oneself or to


confess guilt
• right to examine the witnesses and to obtain the
attendance and examination of witnesses on one's
behalf
• ne bis in idem
• be advised of one's judicial and other remedies and
of the time-limits within which they may be
exercised.
Procedural Safeguards
(selection)

• Right to information about the reasons for the


internment

• Right to be registered and held in a


recognized place of internment

• Right to challenge the lawfulness of the


detention, with the least possible delay
Procedural Safeguards
(selection) (2)
• Right to have review of the lawfulness of the
internment carried out by an independent and
impartial body

• Right to periodical reviews of internment

• Right to have contacts – to correspond with


and be visited by – members of his or her
family
Who are detained?

• Prisoners of war
• Civilians posing an inherent threat to security -
internees
• Criminals
• Security/ administrative detainees
Prisoners of war
International armed conflicts
(IAC)

Right to prisoner of war status


Two conditions:
Äto belong to specified categories of persons
Äto have fallen into the power of the enemy
International armed conflicts
(IAC)
Right to prisoner of war status

GC III, Art. 4A (1) & (3)

à Members of the armed


forces

Äregular armed forces


Äregular armed forces who profess allegiance to a
government/authority not recognized by the
Detaining State

(except medical and religious personnel)


International armed conflicts
(IAC)

Right to prisoner of war status


GC III, Art. 4A (2)

à Members of other militias and members of other


volunteer corps, … belonging to a Party to the conflict …
- conditions:
§ being commanded by a person responsible for his
subordinates;
§ having a fixed distinctive sign recognizable at a
distance;
§ carrying arms openly;
§ conducting their operations in accordance with the
laws and customs of war.
International armed conflicts
(IAC)
Right to prisoner of war status
GC III, Art. 4A (4) (5) & (6)

à Persons who accompany the armed forces … (civilian


members of military aircraft crews, war
correspondents, supply contractors, members of
labour units or of services responsible for the welfare
of the armed forces)
à Crews of the merchant marine and crews of civil
aircraft of the Parties to the conflict, …
à Inhabitants of a non-occupied territory, who on the
approach of the enemy spontaneously take up arms to
resist the invading forces, without having had time to
form themselves into regular armed units … (levée en
masse)
• Spies
Special cases … • Mercenaries
International armed conflicts
(IAC)
Presumption of PoW status
… if a person has committed a belligerent act and
falls into the hands of the enemy, ….
if doubt …

…enjoys the protection of the Convention until such


time as their status has been determined by a
competent tribunal (individual determination)
International armed conflicts
(IAC)
Humane treatment of PoW
§ Respect: humane treatment at all times
• respect for their persons and their honour
• any unlawful act or omission … causing death or
seriously endangering the health of a PoW
ða serious breach may trigger individual criminal
responsibility
• measures of reprisals are prohibited

§ Protect: must at all times be protected against


harm
• against acts of violence or intimidation
• against insults and public curiosity
International armed conflicts
(IAC)
Registration

o Prisoners of war (GC


III)
o Interned civilians (GC
IV)

28
ICRC registration

• Collection and transmission of information by NIB does


not preclude collection and transmission by ICRC
• In practice, the ICRC always proceed to its own
collection of data, in parallel to any existing NIB
Internees – civilians detained
International armed conflicts

Internment of civilians
Aliens in the territory of the parties:

• The internment or placing in assigned residence of


protected persons may be ordered only if the security of
the Detaining Power makes it absolutely necessary

Occupied territory:

• If the Occupying Power considers it necessary, for


imperative reasons of security, to take safety measures
concerning protected persons, it may, at the most, subject
them to assigned residence or to internment
Non-international armed conflicts

Internment/detention (NIAC)
Common Article 3:
• persons taking no active part in the hostilities, including …
those placed ' hors de combat ' by sickness, wounds,
detention, or any other cause, shall in all circumstances be
treated humanely, without any adverse distinction ...

Additional Protocol II:


• All persons who do not take a direct part or who have
ceased to take part in hostilities, whether or not their
liberty has been restricted, are entitled to respect for their
person, honour and convictions and religious practices.
They shall in all circumstances be treated humanely,
without any adverse distinction.
Criminals
Criminals under IHL: IAC
• Domestic law applies in an international armed
conflict: nationals of a state party are not
protected, but they are protected during
occupation
• But generally Art 27 GCIV: humanely treated,
and shall be protected especially against all acts
of violence or threats thereof and against insults
and public curiosity.
• Art 32: Prohibition on brutality, torture, medical
experimentation
• Art 33: personal responsibility, no collective
punishments.
Criminals under IHL: NIAC

• Can be members of opposition forces


• Sedition, treason, murder
• Domestic law applies
• Also:
• APII art 5: general conditions
• APII art 6: penal prosecutions
Security detainees –
multinational operations NIAC
Security/ Administrative Detention
/ Internment
- Definition -
Deprivation of liberty
of a person
initiated/ordered by
the executive branch
- not the judiciary -
without criminal
charges being
brought against the
person
SECURITY CRIMINAL
DETENTION DETENTION

• ordered by
4ordered by judiciary
executive branch
• threat to security 4criminal offence
• procedural 4judicial guarantees
principles and 4ordinary situation
safeguards
• exceptional situation
General Principles
Security detention-
• is an exceptional measure of control
ordered for security reasons
• is not an alternative to criminal
proceedings
• can only be ordered on the basis of a
decision taken in each individual case,
without discrimination of any kind
• must cease as soon as the reasons for it
cease to exist
• must conform to the principle of legality –
be based on reasons (substantive) and
with procedures (procedural) set out in
domestic and international law
Security detainees in conflict
• International military operations in a NIAC
„ Status of detainees
§ not POWs
§ civilians directly participating in hostilities?
§ Members of a hostile force?
§ “unlawful enemy combatants”?
„ No criminal basis to charge and prosecute?
„ Each individual must pose an imperative
threat to security
„ Legality under ROE and SOP
• Regardless of lawfulness of detention
certain standards apply
Legal issues
• Legality under which law?
• Procedural safeguards
• Separation of detainees/internees
• Family contacts
• When does internment end?
• De-classification of evidence
• Intelligence vs evidence
• Transfers to host govt
• Detention monitoring