7.1 Building on the Current Law
It has been demonstrated that the current lex lata regarding internment in non-international armed conflicts is derived from both international humanitarian law (IHL) and international human rights law (IHRL). Thus, chapter 3 argued that both conventional and customary IHL prohibit internment in non-international conflicts where it is not actually necessary as a result of the conflict.4 Moreover, chapter 5 showed that the far more detailed rules under IHRL continue to apply fully, absent derogation, in non-international conflicts, alongside this basic IHL norm.
However, these IHRL rules are limited in two respects. First, section 4.3 noted that not all states are party to one of the general human rights treaties, leaving detentions by such states regulated at the international level only by those rules of human rights law that are of a customary nature (in addition to the basic IHL rule). Second, section 6.3 demonstrated that, whilst there is a growing acknowledgement that IHRL binds non-state armed groups in certain circumstances (eg where they control territory), the source of such obligations currently appears limited to custom. As with those detained by states not party to a human rights treaty, therefore, those held by non-state armed groups are similarly protected at most by only customary IHRL and the basic IHL rule. This is of particular concern as it was shown that only the basic prohibition of the arbitrary deprivation of liberty in IHRL can confidently be said to have crystallized as custom.5 Consequently, those detained by states without human rights treaty obligations and by armed groups do not appear to enjoy the other procedural safeguards applicable under human rights treaties, such as the right to habeas corpus.6 Moreover, it was also shown that applying even that basic IHRL prohibition of arbitrary detention to non-state groups is problematic, given its genesis in the law applicable to states. The current lex lata cannot, therefore, be considered adequate to protect persons interned in non-international armed conflicts.
(p. 227) 7.1.1 Eliminate the distinction between categories of armed conflict?
In response to the lack of clear, adequate rules in this area, certain commentators have advocated extending (all or parts of) the internment regimes applicable under IHL in international armed conflicts to non-international conflicts.7 Indeed, chapter 5 demonstrated that states party to non-international armed conflicts have often adopted internment regimes that mirror those under GCIII and GCIV.8 Similarly, this was shown to be the approach taken in the Copenhagen Principles on the Handling of Detainees in International Military Operations, which advocate a series of procedural rules to apply in extraterritorial non-international armed conflicts that are clearly based on the GCIV internment regime.9 These approaches can be seen as part of the general trend in favour of the elimination of the distinction between international and non-international armed conflicts. Chapter 1 demonstrated that the basis for this distinction in the traditional limitation of international law to inter-state matters no longer applies, given the emergence of intra-state structures of obligation.10 Moreover, the sovereignty arguments often raised in favour of preserving what remains of the distinction were shown to be valid only for certain issues; such arguments cannot justify the exclusion of the procedural rules applicable to internment from non-international armed conflicts.11
However, it was also shown that, more recently, the preservation of the distinction between categories of armed conflict has been advocated on humanitarian grounds.12 It has long been recognized that victims of non-international conflicts require protection under international law,13 and the traditional means by which this was achieved was to draw on the rules of IHL originally applicable (p. 228) in international armed conflicts only.14 However, alongside these developments emerged IHRL, applicable to the state’s actions vis-à-vis those within its jurisdiction. These rules are more protective than IHL, illustrated by the procedural regulation of internment.15 As demonstrated in chapters 4 and 5, the IHRL rules on detention continue to apply in non-international armed conflicts, such that extending the GCIII and GCIV internment regimes to those situations could, through claims that they operate as the lex specialis, serve to undermine these protections under IHRL.16 For this reason, it is submitted that eliminating the distinction between international and non-international armed conflicts in this area, and applying the GCIII and GCIV internment regimes to the latter as the lex specialis, would be a regressive step—not only are those regimes much more permissive than IHRL, but, as chapter 2 demonstrated, the IHL rules also leave a number of issues unanswered, resulting in considerable discretion for the detaining power. Moreover, it was also shown in chapter 6 that the IHRL rules on detention are capable, through contextual interpretation and a (limited) right to derogate, of taking account of the kinds of necessity-based concerns of states that commonly arise in armed conflict.
7.1.2 Developing an internment regime for non-international armed conflicts
Whilst the distinction between types of armed conflict in this area should, therefore, be retained, the internment regimes applicable in international armed conflicts can nonetheless be drawn on in developing a regime for non-international conflicts. This is the approach taken in the present chapter, and the proposal made here is to build upon the current lex lata.17
Page Id: 228ReferencesPrijedor, Prosecutor v Tadić (Duško) aka 'Dule', Decision on the Defence motion for interlocutory appeal on jurisdiction, Case No IT-94-1-AR72, ICL 36 (ICTY 1995), OXIO 62, (1996) 35 ILM 32, 2nd October 1995, United Nations [UN]; United Nations Security Council [UNSC]; International Criminal Tribunal for the Former Yugoslavia [ICTY]; Appeals Chamber [ICTY] OXIO ICL(p. 229) Before setting out the proposals, a few observations on the relationship between the current law and the proposed internment regime are warranted. First, an internment regime designed specifically for non-international armed conflicts would help to address the shortcomings with the current lex lata outlined above. Thus, it would develop the minimum rules applicable to internment in non-international conflicts by both states not party to one of the general human rights treaties, as well as non-state armed groups. The regime would build upon the current international legal norms applicable to these actors, which, as noted, currently comprise only the basic IHL rule prohibiting unnecessary internment, as well as the customary human rights prohibition of arbitrary deprivations of liberty.
In addition, the internment regime would also provide guidance to states that are party to one or more of the general human rights treaties by setting out the minimum humanitarian standards applicable. Such guidance is necessary to give clarity to the operation of conventional human rights obligations in non-international conflicts and, in particular, the extent to which those obligations can be ‘read down’ or derogated from. Chapters 5 and 6 showed a clear practice amongst states and human rights treaty bodies that IHRL regulates detentions in relation to non-international conflicts.18 The treaty bodies diverge, however, in their approaches to the possibility of reading down and/or derogating from the IHRL rules on detention.19 A compromise between these different approaches was proposed in section 6.1.5, which advocated emphasizing the object and purpose of these rules when interpreting their minimum requirements. It was argued there that the prohibition of arbitrary deprivation of liberty and the requirement that reasons be given are sufficiently open to allow for the exigencies of the situation to be taken into account. Consequently, it was suggested that derogation from these rules is impermissible.20 The exception here is Article 5(1) of the European Convention on Human Rights (ECHR), from which derogation is necessary in order to introduce an internment regime.21
Like Article 5(1) ECHR, it was shown that the right to habeas corpus in each of the human rights treaties does not appear open to the same reading down as the basic prohibition of ‘arbitrary’ detention. It was therefore argued that, in keeping with their text and object and purpose, the habeas provisions should be applied strictly even in non-international armed conflicts. Thus, habeas corpus requires independent, judicial review of detention, with the usual fundamental guarantees applying.22 Where it is actually necessary, however, to depart from Page Id: 229ReferencesA et al v United Kingdom, First applicant and ors, Liberty (intervening) and Justice (intervening) v United Kingdom, Admissibility, merits and just satisfaction, App No 3455/05, IHRL 3240 (ECHR 2009), [2009] ECHR 301, (2009) 49 EHRR 29, 26 BHRC 1, 19th February 2009, Council of Europe; European Court of Human Rights [ECHR]; Grand Chamber [ECHR] IHRLIreland v United Kingdom, Merits and just satisfaction, App No 5310/71, A/25, IHRL 16 (ECHR 1978), [1978] ECHR 1, (1979-80) 2 EHRR 25, (1980) 58 ILR 188, EuGRZ 1979, 149, 18th January 1978, Council of Europe; European Court of Human Rights [ECHR] IHRL(p. 230) these standards, it was argued that derogation should be permitted, albeit to a limited extent. In particular, it was shown that the necessity and proportionality requirements could limit derogation from habeas corpus by requiring, at a minimum, that an alternative review body be established that is independent at least from the specific authority that ordered detention, impartial and that has the power to order release.
The internment regime proposed in this chapter would elaborate these minimum standards that must be applied by states with conventional human rights obligations, as interpreted above. For example, the internment standard would be defined in a manner that is compliant with the IHRL prohibition of arbitrary detention. Moreover, where it is necessary and proportionate to derogate from habeas corpus, the internment regime would clarify the minimum procedures that the state must offer for their derogation to be valid. It must be emphasized that this regime is intended to comprise minimum rules; in a specific case, derogation from habeas corpus, for example, may only be permitted to a more limited extent. For non-state armed groups and states without human rights treaty obligations, however, the proposed regime would constitute the generally applicable rules in non-international armed conflicts, building upon the basic norms that currently apply to these actors.
As noted, in developing this internment regime, the IHL regimes applicable in international armed conflicts may be drawn on, with the proviso that we learn from the shortcomings of those rules and their development in doctrine and practice.23 The sections below will now elaborate on the provisions of the proposed internment regime. Section 7.2 will demonstrate the inappropriateness of drawing (p. 231) by analogy from GCIII, whilst section 7.3 will argue that GCIV provides a useful starting point here.
7.2 Analogizing to GCIII
It will be remembered from chapter 2 that GCIII permits status-based internment for the duration of hostilities, with no review of the necessity of internment.24 The examples of state practice in chapter 5 demonstrate that certain states have similarly interned persons in non-international armed conflicts on the basis of status, specifically membership of non-state armed groups.25 Indeed, the Commentary to the Copenhagen Principles takes the view that ‘[a] person may be detained [eg] for … belonging to an enemy organised armed group’.26 Moreover, armed groups in non-international armed conflicts have also detained members of state armed forces.27 Based on this practice, it might be argued that we should draw by analogy from GCIII in developing an internment regime for non-international conflicts.28
However, it is submitted that the GCIII internment regime could not appropriately be transplanted to non-international conflicts. In particular, the two elements of that regime (internment on the basis of status and for the duration of hostilities) pose significant problems when applied to non-international conflicts. Regarding status-based internment, whilst IHL does, to an extent, recognize different statuses of person in non-international armed conflicts,29 the absence of a clearly defined status of ‘combatant’, to which a status-based internment regime could apply, poses problems, particularly regarding the non-state side.30 Without this, differentiating between ‘combatants’ and ‘civilians’ becomes problematic, raising the possibility of arbitrary, indefinite internment of civilians.31 Moreover, it is important to differentiate between the ‘armed forces’ and the civilian (political or humanitarian) elements of non-state armed groups, for it is only the former for whom the label ‘combatant’ might be appropriate.32 However, ‘the informal and clandestine structures of most organized armed groups and the elastic nature of membership render it particularly difficult to distinguish between a non-State party to the conflict and its armed forces’.33
Attempts have, however, been made to define membership of non-state armed forces. In its Guidance on Direct Participation in Hostilities, the ICRC suggested that members of non-state armed groups may be targeted on the basis of status, akin to combatant targeting in international armed conflict.34 The ICRC adopted a functional test for membership of armed groups.35 Thus, those performing a ‘continuous combat function’ are said to constitute members of the non-state armed forces.36 In pertinent part:
… individuals whose continuous function involves the preparation, execution, or command of acts or operations amounting to direct participation in hostilities are assuming a continuous combat function.37
(p. 232) This approach has been criticized for being too narrow.38 A more liberal test for membership, also based on function, has been advocated by the Obama Administration and the DC district court in the habeas corpus cases involving Guantánamo detainees.39 In defining membership, Judge Walton in Gherebi v Obama held that ‘“persons who receive and execute orders” from the enemy’s “command structure” can be considered members of the enemy’s armed forces’.40 The DC court’s more liberal definition, compared to the ICRC’s, is seen in Judge Walton’s point that ‘armed forces’ is wider than ‘fighters’ (those performing a ‘continuous combat function’) and that the key issue is whether the individual receives and carries out orders from the ‘enemy force’s combat apparatus’.41
In addition to the difficulty with defining membership, identifying persons who fall within those definitions also presents problems. Whilst certain non-state forces, such as the Fuerzas Armadas Revolucionarias de Colombia (FARC) in Colombia, the Liberation Tigers of Tamil Eelam (LTTE) in Sri Lanka and the Kosovo Liberation Army, have been known to distinguish themselves,42 making the determination of membership more objective, these are within the minority.43 Absent an objectively identifiable emblem or uniform, the detaining power would be required to make a determination of each individual’s function. Identifying an individual as a member of a non-state armed group will thus often involve a significant degree of discretion. Indeed, it is the discretion exercised when interning civilians, which explains GCIV’s requirement of review.44 Chapter 2 explained, however, that GCIII does not provide an equivalent review for prisoners of war (POWs).45 Extending the GCIII internment regime thus raises the possibility of error without any chance of rectification via review, risking arbitrary detention on the mistaken belief that individuals are members of non-state armed forces. This would contravene both the basic IHL rule applicable in non-international armed conflicts (prohibiting internment that is not necessary as a result of the war), as well as the prohibition of arbitrary deprivations of liberty in customary human rights law. Drawing on GCIII would, therefore, undermine the current lex lata which, as noted, should be built upon, rather than replaced.
Page Id: 232ReferencesA and B v Israel, Appeal decision, Criminal Appeal No 6659/06, Criminal Appeal No 1757/07, Criminal Appeal No 8228/07, Criminal Appeal No 3261/08, ILDC 1069 (IL 2008), 11th June 2008, Israel; Supreme Court; Supreme Court as Court of Appeal; Criminal Division ILDCGherebi v Obama and Gates, 609 F Supp 2d 43 (DDC 2009), 22nd April 2009, United States; District of Columbia; District Court for the District of Columbia [DDC]Guantanamo Bay Detainee Litigation, Re, Respondent's memorandum regarding the Government's detention authority relative to detainees held at Guantanamo Bay, Misc No 08-442, 13th March 2009, United States; District of Columbia; District Court for the District of Columbia [DDC]Hamlily and ors v Obama and ors, Decision on motion to dismiss, ILDC 1832 (US 2009), 616 F Supp 2d 63 (DDC 2009), 19th May 2009, United States; District of Columbia; District Court for the District of Columbia [DDC] ILDC(p. 233) The other aspect of the GCIII internment regime—internment for the duration of hostilities—poses further problems in non-international armed conflicts. The Obama Administration and the DC courts, for example, argued that members of al-Qaeda may be interned for the duration of hostilities.46 Chapter 2 explained that the philosophy underpinning this rule in international armed conflicts is that combatants are assumed to pose the threat of returning to the battlefield until hostilities cease.47 It must be borne in mind, however, that both customary human rights and humanitarian law applicable in non-international conflicts require release of all internees as soon as the reasons justifying internment cease, lest internment become arbitrary.48 The difficulty here is that ‘the informal … structures of most organized armed groups and the elastic nature of membership’ means that those initially interned as ‘members’ may not continue to be so for the duration of hostilities.49 As with membership, functional criteria may be sufficient to constitute de facto withdrawal from non-state forces. As the ICRC notes, ‘[d]isengagement from an organized armed group … [may] be expressed through conclusive behaviour, such as a lasting physical distancing from the group’.50 The internee in such a case may no longer pose the threat of rejoining hostilities. An example of this arose in Basardh v Obama, part of the Guantanamo habeas litigation, in which Judge Huvelle acknowledged that the detainee had ostracized himself from al-Qaeda, through his well-publicized cooperation with the US authorities, to such an extent as to no longer constitute a member of that group.51 Detention for the duration of hostilities was thus unnecessary.
The above concern is exacerbated by the indeterminacy in the point at which hostilities cease in non-international armed conflicts, raising the chances of extremely prolonged detention.52 Indeed, this could be problematic for compliance with the customary human rights prohibition of arbitrary deprivation of liberty, given the trend referred to in chapter 4 whereby human rights bodies are increasingly sceptical of prolonged, indefinite detention.53 Moreover, it is for this reason that applying the GCIII internment regime to govern detentions by non-state armed groups of regular state forces would also be problematic, notwithstanding that that regime was designed primarily with state forces in mind.54 The indeterminacy in the point at which hostilities cease in Page Id: 233ReferencesAl-Bihani v Obama, Appeal judgment, Docket No 09-5051, 590 F 3d 866 (DC Cir 2010), ILDC 1568 (US 2010), 5th January 2010, United States; Court of Appeals (DC Circuit) [DC Cir] ILDCAwad v Obama, 608 F 3d 1 (DC Cir 2010), 2nd June 2010, United States; Court of Appeals (DC Circuit) [DC Cir]Basardh v Obama, 612 F Supp 2d 30 (DDC 2009), 15th April 2009, United States; District of Columbia; District Court for the District of Columbia [DDC]Guantanamo Detainees Cases, Re, Memorandum opinion denying in part and granting in part respondents' motion to dismiss or for judgment as a matter of law, 355 F Supp 2d 443 (DDC 2005), 31st January 2005, United States; District of Columbia; District Court for the District of Columbia [DDC]Hamlily and ors v Obama and ors, Decision on motion to dismiss, ILDC 1832 (US 2009), 616 F Supp 2d 63 (DDC 2009), 19th May 2009, United States; District of Columbia; District Court for the District of Columbia [DDC] ILDC(p. 234) many non-international armed conflicts would make applying the GCIII rule on release particularly difficult.
In light of the above, it is submitted that the GCIII internment regime is inappropriate for application in non-international armed conflict. The next section will demonstrate how GCIV might be useful here.
7.3 Analogizing to GCIV
By being premised on individual conduct as opposed to status, the GCIV internment regime offers a more useful framework from which we may draw inspiration, as it helps to address the concerns raised above. For example, as demonstrated in chapter 2, GCIV permits internment only for so long as it is necessary for security, based on individual threat, thus avoiding the concern that persons could be held beyond this point (and thus arbitrarily) were the assumption under GCIII of internment for the duration of hostilities extended to non-international armed conflicts.55 Similarly, initial and periodic review of the necessity of internment as required by GCIV could help to provide a check on any discretion that might be exercised by the detaining authority.56
GCIV is therefore a useful starting point in developing an internment regime for non-international conflicts. Each category of procedural rules under GCIV will now be considered for application in non-international conflicts, drawing on the criticisms and elaborations of those rules discussed in chapter 2. Their ability to satisfy and enforce the current lex lata, and thus to build upon that framework, will be the principal frame of reference.
7.3.1 Standard for internment
The standard for internment must be such as to satisfy the current minimum lex lata applicable in non-international conflicts, comprising both IHL’s prohibition of internment that is not actually necessary as a result of the conflict,57 as well as the customary human rights prohibition of arbitrary deprivation of liberty.58 This is especially important, given that both of these norms were said to be non-derogable and to bind all parties in non-international conflicts, states and non-state groups alike.59 In light of this, the Article 42(1) GCIV standard, permitting internment ‘only if the security of the Detaining Power makes it absolutely necessary’, seems more appropriate than the Article 78(1) GCIV standard, which, as (p. 235) explained in chapter 2, is partly subjective, in that it permits internment where the ‘Occupying Power considers it necessary, for imperative reasons of security’.60 Indeed, as chapter 3 demonstrated, Article 27(4) GCIV, on which the basic IHL norm applicable in non-international armed conflicts was said to be based, requires that measures of security (eg internment) actually be necessary as a result of the conflict.61 Similarly, the IHRL prohibition of arbitrary detention requires that any detention actually be necessary, and no more than is necessary, for the legitimate purpose sought.62 The objective standard in Article 42(1) GCIV therefore seems more appropriate for non-international conflicts than the standard in Article 78(1) GCIV. Moreover, the decision on internment should be taken at a high level of command to allow for consideration of its actual necessity as soon as possible after the initial capture.63 It should be repeated here that there is an ‘assumption [in IHRL] that the criminal justice system is able to deal with persons suspected of representing a danger to State security’; internment can only be employed where actually necessary to address the security threat, which includes the requirement that the criminal justice system cannot contain that threat.64
Chapter 2, however, demonstrated that the GCIV standards, particularly the ‘security’ prong, leave significant discretion to the detaining power. This could be problematic since human rights jurisprudence confirms that, as part of the arbitrary deprivation of liberty prohibition, the grounds for detention must be ‘clearly defined’ and ‘foreseeable in application’.65 Whilst the Article 42(1) GCIV standard could fail to satisfy this requirement, this can be mitigated in a number of ways, all of which have been discussed in the previous chapters. First, as noted above, the prohibition of arbitrary deprivation of liberty in IHRL is sufficiently open to take account of the exigencies of a non-international conflict; the situation can thus affect what qualifies as ‘arbitrary’.66 For example, whilst internment where ‘the security of the Detaining Power makes it absolutely necessary’ might, in ordinary situations, be considered too vague, the existence of a non-international armed conflict could be such as to allow this less specific standard, along with the elaborations of it noted below. The standard must not, however, be so broad as to allow detention to be entirely within the discretion of the detaining authority.67
Page Id: 235ReferencesA v Australia, Merits, Communication No 560/1993, UN Doc CCPR/C/59/D/560/1993, IHRL 1563 (UNHRC 1997), (1997) 5 IHRR 78, 3rd April 1997, United Nations [UN]; Human Rights Committee [CCPR] IHRLAmnesty International v Sudan, Merits, Communication No 48/90, Communication No 50/91, Communication No 52/91, Communication No 89/93, 26th Ordinary Session (1-15 November 1999), 13th Annual Activity Report (1999-2000), IHRL 2805 (ACHPR 1999), (2000) AHRLR 297 (ACHPR 1999), (2001) 8 IHRR 256, OAU Doc AHG/222 (XXXVI), November 1999, African Commission on Human and Peoples' Rights [ACHPR] IHRLCase of Chaparro Álvarez and Lapo Íñiguez v Ecuador, Chaparro Álvarez and Lapo Íñiguez v Ecuador, Preliminary objections, merits, reparations and costs, IACHR Series C No 170, IHRL 3044 (IACHR 2007), 21st November 2007, Inter-American Court of Human Rights [IACtHR] IHRLLevoyer Jiménez v Ecuador, Merits, Case 11.992, Report No 66/01, 14th June 2001, Inter-American Commission on Human Rights [IACommHR]Medvedyev and ors v France, Merits and just satisfaction, App No 3394/03, IHRL 3715 (ECHR 2010), [2010] ECHR 384, [2010] ECHR 899, (2010) 51 EHRR 39, 29th March 2010, Council of Europe; European Court of Human Rights [ECHR]; Grand Chamber [ECHR] IHRLSaadi, United Nations High Commissioner for Refugees (intervening) and ors (intervening) v United Kingdom, Merits and just satisfaction, App No 13229/03, IHRL 3270 (ECHR 2008), [2008] ECHR 80, (2008) 47 EHRR 17, 29th January 2008, Council of Europe; European Court of Human Rights [ECHR]; Grand Chamber [ECHR] IHRL(p. 236) Second, we can draw on elaborations of this standard in doctrine and practice. Thus, chapter 2 demonstrated that practice has endorsed the view that, to satisfy the GCIV internment standards, ‘the party must have good reason to think that the person concerned, by his activities, knowledge or qualifications, represents a real threat to its present or future security’.68 More specifically, ‘[s]ubversive activity … or actions … of direct assistance to an opposing party’ may satisfy the standard if the detaining authority ‘has serious and legitimate reasons to think that they may seriously prejudice its security by means such as sabotage or espionage’.69 It was argued in section 2.2.1 that further defining in abstracto the situations that may be considered security threats necessitating internment would risk being either under- or over-inclusive. In a specific situation, however, by making known to the population in advance the kinds of actions that would constitute a security threat justifying internment, the vagueness of the Article 42(1) GCIV standard can be mitigated.70
Third, we can learn from other areas of international law in which state security may be invoked as a basis for departing from the ordinary rules. For example, chapter 2 noted that the International Court of Justice (ICJ), the ECtHR, and the European Court of Justice (ECJ) have all addressed national security claims of states by treating separately the two issues of national security and necessity, with the result that, whilst deference is given to the state in defining what constitutes a threat to its security, the necessity element is an objective standard susceptible to judicial review.71 As the necessity requirement in Article 42(1) GCIV is objective (cf Article 78(1) GCIV), it offers a reasonable counterbalance to the discretion left to the detaining authority under the security element of the internment standard. As will be shown below, this necessity element can then be utilized by the reviewing body as an objective check on detention authority.
Fourth, we can also draw on the limits of the GCIV detention authority that have been developed.72 For example, the following characteristics, by themselves, are considered insufficient to render internment necessary for security reasons: nationality or alignment with the opposing party;73 being of military age;74 Page Id: 236ReferencesCivilians Claims - Ethiopia's Claim 5, Ethiopia v Eritrea, Partial award, (2005) XXVI RIAA 249, ICGJ 355 (PCA 2004), (2005) 44 ILM 630, 17th December 2004, Permanent Court of Arbitration [PCA]; Eritrea-Ethiopia Claims Commission ICGJLašva Valley, Prosecutor v Kordić (Dario) and Čerkez (Mario), Trial judgment, Case No IT-95-14/2-T, ICL 287 (ICTY 2001), 26th February 2001, United Nations [UN]; United Nations Security Council [UNSC]; International Criminal Tribunal for the Former Yugoslavia [ICTY]; Trial Chamber III [ICTY] ICLSteel and ors v United Kingdom, Merits and just satisfaction, App No 24838/94, Case No 67/1997/851/1058, ECHR 1998-VII, [1998] ECHR 95, (1999) 28 EHRR 603, 5 BHRC 339, [1998] Crim LR 893, [1998] HRCD 872, Times, October 1, 1998, (1998) 5 ÖIM-Newsletter 201, 23rd September 1998, Council of Europe; European Court of Human Rights [ECHR]Čelebići Camp, Prosecutor v Delalić (Zejnil) and ors, Appeal judgment, Case No IT-96-21-A, ICL 96 (ICTY 2001), (2001) 40 ILM 630, 20th February 2001, United Nations [UN]; United Nations Security Council [UNSC]; International Criminal Tribunal for the Former Yugoslavia [ICTY]; Appeals Chamber [ICTY] ICLČelebići Camp, Prosecutor v Delalić (Zejnil) and ors, Trial judgment, Case No IT-96-21-T, ICL 95 (ICTY 1998), 16th November 1998, United Nations [UN]; United Nations Security Council [UNSC]; International Criminal Tribunal for the Former Yugoslavia [ICTY]; Trial Chamber II [ICTY] ICL(p. 237) possessing intelligence;75 and following particular political or religious opinions or practices.76 These limits help to ensure that nobody is unnecessarily or arbitrarily interned in contravention of IHL and IHRL. In addition, as section 2.2.1 demonstrated, jurisprudence has confirmed that GCIV permits internment only where the individual poses a threat necessitating internment; alleged membership of a particular group, by itself, is insufficient.77 It was also acknowledged, however, that internment on the basis of membership of particular groups and the need for an individual threat are not necessarily inconsistent. Rather, as discussed by the Israeli Supreme Court, the particular role of the individual within the group must be considered to determine whether that role is such as to render the individual a security threat.78 The same approach can be applied in non-international armed conflicts, which should help to protect against the risks posed by extending pure status-based internment to non-state armed groups, discussed above.79
Finally, as noted in section 6.3.1, the requirement of a legal basis for detention, which forms part of the customary human rights prohibition of arbitrary deprivation of liberty, poses particular difficulties in non-international armed conflicts, given the absence of such a legal basis in applicable IHL.80 Whilst the legal basis for internments by the state will often be found in domestic law, the absence of a legal basis for non-state armed groups could result in any detention by them violating the customary human rights prohibition of arbitrary deprivation of liberty, even if arguably necessary for security.81 In the absence of an internment regime being adopted in law for non-international armed conflicts, in which such a legal basis might be included, one solution to this might be to consider decrees adopted by non-state armed groups as, in certain circumstances, capable of providing the legal basis for their detentions. Indeed, non-state groups, particularly those in control of territory, have been known to adopt legislation pertaining to the activities within the territory they control.82 On the one hand, such decrees would fall short of what is normally required of a legal basis for detention. As the UN Working Group on Arbitrary Detention has stated, such a law should either Page Id: 237ReferencesA and B v Israel, Appeal decision, Criminal Appeal No 6659/06, Criminal Appeal No 1757/07, Criminal Appeal No 8228/07, Criminal Appeal No 3261/08, ILDC 1069 (IL 2008), 11th June 2008, Israel; Supreme Court; Supreme Court as Court of Appeal; Criminal Division ILDCFoča, Prosecutor v Krnojelac (Milorad), Trial judgment, Case No IT-97-25-T, ICL 16 (ICTY 2002), 15th March 2002, United Nations [UN]; United Nations Security Council [UNSC]; International Criminal Tribunal for the Former Yugoslavia [ICTY]; Trial Chamber II [ICTY] ICLLašva Valley, Prosecutor v Kordić (Dario) and Čerkez (Mario), Trial judgment, Case No IT-95-14/2-T, ICL 287 (ICTY 2001), 26th February 2001, United Nations [UN]; United Nations Security Council [UNSC]; International Criminal Tribunal for the Former Yugoslavia [ICTY]; Trial Chamber III [ICTY] ICLRasul v Bush, Decision, Docket No 03-334, 542 US 466 (2004), ILDC 115 (US 2004), 124 S Ct 2686 (2004), 159 L Ed 2d 548 (2004), 72 USLW 4596 (2004), (2004) USSC 2809, 28th June 2004, United States; Supreme Court [US] ILDCČelebići Camp, Prosecutor v Delalić (Zejnil) and ors, Trial judgment, Case No IT-96-21-T, ICL 95 (ICTY 1998), 16th November 1998, United Nations [UN]; United Nations Security Council [UNSC]; International Criminal Tribunal for the Former Yugoslavia [ICTY]; Trial Chamber II [ICTY] ICL(p. 238) have been adopted through a democratic process or developed in long-standing practice by an independent judiciary.83 Decrees of armed groups would clearly fail to meet this. On the other hand, where they are sufficiently clear and reflect a collective decision, they might offer sufficient notice to those within the territory controlled by the group of the kind of activity deemed prejudicial to security and thus which could lead to internment.
7.3.2 Reasons for internment
Like the arbitrary deprivation of liberty prohibition, it was argued that the IHRL requirement that the reasons for detention be given to the detainee should also be considered non-derogable, since the right is a sine qua non to availing oneself effectively of the right to habeas corpus; indeed, the right was also shown to be sufficiently open to take account of the exigencies of the situation.84 IHL similarly requires that reasons be given to civilian internees in international armed conflicts.85 Such a rule should therefore be incorporated into an internment regime for non-international armed conflicts.86
That the exigencies of a situation may be factored into this requirement will mean that its application could be affected in practice. Thus, as described in section 6.1.5, it may be justified to have a short delay before which the reasons are conveyed to the internee, for example, because their safety necessitates that they are taken from the zone of hostilities to a detention facility.87 Moreover, certain details regarding the factual basis for detention or the evidence concerning the detainee may reasonably be withheld from them where necessary for security reasons.88 However, the object and purpose of this right indicate that the information given must always be sufficiently detailed so as to allow the detainee to challenge the grounds on which they are detained.89 The review body (on which see below) should have the power to examine the necessity of withholding information from the internee on security grounds.90
It was argued in section 6.1.5 that the human rights treaty provisions on habeas corpus should not be read down to permit non-judicial forms of review.91 However, it was also argued that the right to habeas corpus should be seen as derogable to a limited extent, such that, where it is necessary and proportionate to do so, a state should be permitted temporarily to derogate from the requirement of court review of detention and instead provide an alternative method of review.92 Nonetheless, the review body should always be independent of the authority that ordered detention and should have the power to order release where detention is found to be unlawful or unnecessary. This, it was argued, would enforce the basic rule in IHRL that no person be deprived of their liberty arbitrarily.
This alternative form of review should be elaborated in an internment regime for non-international armed conflicts, so as to highlight the minimum procedures that must be provided by states when derogating from habeas corpus under a human rights treaty. In addition, this minimum review mechanism would provide a much-needed safeguard for detainees held by states not party to a human rights treaty and by non-state armed groups in non-international armed conflicts. This review mechanism might reasonably be modelled on the initial and periodic review procedures in Article 43(1) GCIV, which provides for review of internment ‘as soon as possible by an appropriate court or administrative board’ as well as bi-annual periodic review by the same body. Indeed, similar approaches have been advocated in various fora when developing minimum humanitarian standards.93
Chapter 2, however, noted that the GCIV provisions on review are vague and leave considerable discretion to the detaining authority.94 It is important that the same level of discretion is not extended to non-international armed conflicts, lest the arbitrary detention prohibition in IHRL, as well as the IHL prohibition of internment that is not necessary as a result of the conflict, be undermined. To address this, we can draw on the elaborations of Article 43(1) GCIV that were shown in chapter 2 to have been developed in doctrine and practice. First, the reference to administrative ‘board’ confirms that the decision cannot rest with a single person.95 Furthermore, given the complex legal questions that arise in such proceedings, it would be preferable if at least one of the members was a lawyer with expertise in humanitarian or human rights law or a judge.96 Second, the reviewing authority must operate impartially and independently from the Page Id: 239ReferencesCase of Coard et al v United States, Coard and ors v United States, Case No 10.951, IACommHR Report No 109/99, (1999) 9 BHRC 150, OXIO 334, 29th September 1999, Inter-American Commission on Human Rights [IACommHR] OXIOIreland v United Kingdom, Merits and just satisfaction, App No 5310/71, A/25, IHRL 16 (ECHR 1978), [1978] ECHR 1, (1979-80) 2 EHRR 25, (1980) 58 ILR 188, EuGRZ 1979, 149, 18th January 1978, Council of Europe; European Court of Human Rights [ECHR] IHRL(p. 240) authority that ordered detention.97 This, at a minimum, requires that the review tribunal be independent of the chain of command that ordered the detention, if not fully outside the military or executive.98 Third, the review authority must examine the actual necessity of internment for protecting against the stated security threat. Thus, as noted above, internment is permitted under Article 42(1) GCIV only where it is absolutely necessary for reasons of security. Whilst the security element leaves discretion to the detaining authority, the necessity element offers an objective benchmark against which the reviewing authority can judge the internment.99 Moreover, as part of this review, the board should consider whether the individual can be transferred to the criminal justice system.100 This was the practice, for example, of the United States in Iraq.101 Fourth, the authority must have the power to order release, binding on the detaining authority.102 Fifth, the burden of proof must rest on the detaining authority to demonstrate that internment is actually necessary, and no more than is necessary, to protect against the stated security threat.103
Sixth, the initial review should be conducted as soon as possible after the initial capture; in particular contexts, this may require a slight delay, for example, when a detainee is taken from the zone of hostilities, but it cannot be delayed without reasonable justification.104 Moreover, periodic review should be provided at least every six months, as required in GCIV, although more frequent periodic review should be available where possible, as its purpose is to ensure release where the reasons justifying detention no longer apply; it thus serves to enforce the basic prohibition in IHL of unnecessary internment, binding on all parties to non-international conflicts.105 The UK’s Joint Doctrine Publication on Captured Persons, for example, requires initial review within forty-eight hours and periodic review no less frequently than every twenty-eight days.106 Where the resources of the detaining authority do not permit this, an alternative might be to provide Page Id: 240ReferencesAbu Bakr v Judge of the Military Court in Schechem, HCJ 466/86, 40(3) PD 649, 1988, Israel; Supreme Court; Supreme Court as High Court of JusticeČelebići Camp, Prosecutor v Delalić (Zejnil) and ors, Appeal judgment, Case No IT-96-21-A, ICL 96 (ICTY 2001), (2001) 40 ILM 630, 20th February 2001, United Nations [UN]; United Nations Security Council [UNSC]; International Criminal Tribunal for the Former Yugoslavia [ICTY]; Appeals Chamber [ICTY] ICL(p. 241) a file review between full periodic reviews, as is the practice of the United States regarding Guantánamo detainees.107 Additionally, periodic review should be performed whenever new information regarding an internee comes to light.108
Finally, the specific procedures adopted by the review body should be conducive to allowing the internee to present their case as strongly as possible. As such, internees should have personal representatives to advise them,109 as well as the ability to make oral and written statements and to call and challenge witnesses.110 As demonstrated in chapter 5, such procedures have, to varying degrees, been adopted by states in certain non-international armed conflicts.111
It is suggested that the above rules also form the framework for detention review bodies set up by non-state armed groups party to non-international armed conflicts, in addition to states. It might be objected that these would be unrealistic for non-state armed groups, who will often have far fewer resources than the state. The capacity to apply and enforce these rules will certainly vary from one group to the next. However, it should be noted that it is not necessarily the case that non-state groups would be unable to comply. Indeed, many such groups, particularly those in control of territory, have established court systems.112 What is more, the rules above do not impose impossible burdens on the detaining authorities, and they could be framed in a sufficiently flexible way as to ensure their practicability without compromising on the principles that underpin them.
7.3.4 Release
The requirement of release where the reasons justifying detention cease was shown in chapter 4 to be inherent in the customary human rights prohibition of the arbitrary deprivation of liberty.113 This requirement was also shown in chapter 3 to be part of IHL’s basic prohibition of internment that is not necessary as a result of the conflict, applicable in non-international armed conflict.114 As such, all parties to non-international conflicts, both states and non-state groups alike, Page Id: 241ReferencesBaban v Australia, Merits, Communication No 1014/2001, UN Doc CCPR/C/78/D/1014/2001, IHRL 1684 (UNHRC 2003), (2003) 11 IHRR 159, 6th August 2003, United Nations [UN]; Human Rights Committee [CCPR] IHRLC v Australia, Merits, Communication No 900/1999, UN Doc CCPR/C/76/D/900/1999, IHRL 1696 (UNHRC 2002), (2002) 10 IHRR 364, 28th October 2002, United Nations [UN]; Human Rights Committee [CCPR] IHRL(p. 242) are required under custom to release internees where the reasons justifying their internment cease. Any internment regime for non-international conflicts must, therefore, include such a norm.115 As such, the relevant rule in GCIV, requiring release where the reasons cease and, if not before, when hostilities cease, may be transplanted to non-international armed conflicts.116
An important caveat must be noted, however. Section 4.2.5 explained that certain human rights bodies appear sceptical of potentially prolonged, indefinite detention.117 On the one hand, the indefinite nature of detention is an inherent feature of internment during armed conflict, and if the law is to be effective here, it cannot prohibit internment for the reason that it does not have a pre-determined end-point.118 However, this scepticism of IHRL towards prolonged, indefinite detention could nonetheless be useful here in protecting detainees from arbitrary deprivations of liberty. To that end, it is submitted that, the longer detention continues, the more burdensome it should be on the detaining power to justify it before the review body.119 Indeed, the principle of proportionality as developed in human rights jurisprudence is particularly useful here. Thus, the ECtHR has confirmed that:
… a balance must be struck between the importance in a democratic society of securing the immediate fulfilment of the obligation in question and the importance of the right to liberty … The duration of the detention is a relevant factor in striking such a balance.120
As detention continues, the proportionality balance should therefore shift in favour of release, requiring increasingly convincing evidence that continued internment is necessary.
7.4 Concluding Remarks
The proposals above recommend drawing by analogy from the GCIV internment regimes and the developments thereof in doctrine and practice. Importantly, it was made clear that the distinction between international and non-international armed conflicts in this area should not simply be eliminated, with the GCIII and GCIV internment regimes being extended to non-international conflicts, Page Id: 242ReferencesBargaining Chips Case, Anonymous (Lebanese Citizens) v Minister of Defence, Final decision, CrimFH 7048/97, 54(1) PD 721, ILDC 12 (IL 2000), 12th April 2000, Israel; Supreme Court ILDCObaidullah v United States, Communication No 10/2013, UN Doc A/HRC/WGAD/2013/10, 3rd May 2013, United Nations [UN]; United Nations General Assembly [UNGA]; United Nations Human Rights Council [UNHRC]; Working Group on Arbitrary Detention [WGAD]Saadi, United Nations High Commissioner for Refugees (intervening) and ors (intervening) v United Kingdom, Merits and just satisfaction, App No 13229/03, IHRL 3270 (ECHR 2008), [2008] ECHR 80, (2008) 47 EHRR 17, 29th January 2008, Council of Europe; European Court of Human Rights [ECHR]; Grand Chamber [ECHR] IHRL(p. 243) lest the current legal protections afforded to those detained in such situations be undermined. Instead, it was suggested that the current lex lata be built upon, with GCIV as our starting point, ensuring that the proposed internment regime complies with the basic customary rules of IHL and IHRL, which earlier chapters showed bind all parties in non-international conflicts.121 Thus, the proposed regime offers a framework, currently lacking in the law, to states without conventional human rights obligations and to non-state armed groups, giving content to their basic obligations under IHL and customary human rights law. In addition, for the majority of states with human rights treaty obligations, the proposals are intended as minimum humanitarian standards that states can apply ‘through’ their IHRL obligations (eg via derogation).
It is submitted that the approach above represents an appropriate balance between military necessity and humanitarian concerns, for internment is permitted but only where subject to strict safeguards. Importantly, as noted, derogation, for example from habeas corpus, cannot be an automatic measure once a non-international armed conflict has come into existence; rather, it is permitted to a limited extent only where actually necessary, and no more than is necessary, in the prevailing circumstances.122 Indeed, the practice of Colombia, discussed in section 5.2.1.1, demonstrates that internment need not be necessary in a non-international conflict, and instead the criminal model of detention could sufficiently respond to threats to state security. Similarly, the practice of Israel confirms that, whilst the introduction of internment may be necessary, derogation from habeas corpus need not be.123
IHL, however, is premised on a different presumption, that is, ‘that the existence of an armed conflict automatically invokes a certain “basic level” of military necessity.’124 It is this presumption that explains IHL’s more permissive approach to internment, relative to IHRL.125 Were the distinction between the two categories of armed conflict eliminated in this area, those more permissive IHL rules might then be argued to apply as the lex specialis in non-international conflicts, effectively undermining the more protective human rights treaty norms that already bind most states.126 The more permissive IHL rules on internment would Page Id: 243ReferencesBoumediene v Bush (President of the United States), Appeal judgment, Docket No 06-1195, 553 US 723 (2008), ILDC 1039 (US 2008), 128 S Ct 2229 (2008), 12th June 2008, United States; Supreme Court [US] ILDC(p. 244) then become the governing legal standards, regardless of whether it was actually necessary in the prevailing circumstances to depart from the stricter human rights standards. The approach advocated here allows us to move away from this presumption and preserve the ordinary law regime (IHRL), so long as it is not actually necessary to depart therefrom.127
Of course, for non-state armed groups and for states not party to a human rights treaty, the proposed regime would form the principal applicable norms in any situation reaching the level of a non-international armed conflict. Unlike states with conventional human rights obligations, no derogation would be necessary for them to ‘access’ this regime. It may be argued that this approach is inappropriate, as it would require non-state armed groups to adhere to less restrictive rules than states that have not derogated from their human rights treaty obligations. However, such differentiated obligations arise not from any inequality under IHL,128 but rather from the voluntary assumption of stricter obligations under human rights treaties by most states, which in turn would restrict their ability to ‘access’ the more permissive internment regime. As demonstrated in section 5.2, states generally already accept the application of IHRL in these situations, and, in so doing, many resort to derogation in order to broaden their discretion. From the perspective of states with human rights treaty obligations, the proposed regime would offer greater clarity regarding minimum humanitarian standards where they do derogate. Moreover, given the current lack of rules applicable to non-state armed groups and to states without human rights treaty obligations, the proposed regime would offer an important development on the current law.
Footnotes:
3 See generally A Roberts and S Sivakumaran, ‘Lawmaking by Non-State Actors: Engaging Armed Groups in the Creation of International Humanitarian Law’ (2012) 37 YJIL 107.
6 It should be reiterated that the claim is not that the right to habeas corpus is not protected under customary law; rather, it is merely that, of the procedural rules under human rights law explored in the present book, only the basic prohibition of arbitrary detention can be said without any doubt to exist under custom. Indeed, it was shown that there is practice supporting the customary status of the right to habeas corpus. However, the existence of even some doubt here poses the risk of uncontrolled discretion of parties to non-international armed conflicts.
7 See, eg, Chatham House and ICRC, ‘Meeting Summary: Procedural Safeguards for Security Detention in Non-International Armed Conflict’, London, 22–3 September 2008, 4–6, 16 <http://www.chathamhouse.org/sites/files/chathamhouse/public/Research/International%20Law/il220908summary.pdf> accessed 7 August 2015; B Oswald, ‘Detention of Civilians on Military Operations: Reasons for and Challenges to Developing a Special Law of Detention’ (2008) 32 Melb UL Rev 524, 548–9; M Sassòli and LM Olson, ‘The Relationship between International Humanitarian Law and Human Rights Law Where it Matters: Admissible Killing and Internment of Fighters in Non-International Armed Conflicts’ (2008) 90 IRRC 599, 623–7; J Pejic, ‘Conflict Classification and the Law Applicable to Detention and the Use of Force’ in Elizabeth Wilmshurst (ed), International Law and the Classification of Conflicts (Oxford University Press 2012) 95–6; E Debuf, Captured in War: Lawful Internment in Armed Conflict (Editions A Pedone/Hart, Paris/Oxford 2013) 502–14.
13 JS Pictet (ed), Commentary to Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War (ICRC, Geneva 1958) 27 (noting a draft convention on civil wars at the 1912 International Red Cross Conference).
14 See, eg, Prosecutor v Duško Tadić (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) ICTY-94-1 (2 October 1995) [127]. Commentators, too, have advocated this approach: A Duxbury, ‘Drawing Lines in the Sand – Characterising Conflicts for the Purposes of Teaching International Humanitarian Law’ (2007) 8 MJIL 259, 268; E Crawford, ‘Unequal Before the Law: The Case for the Elimination of the Distinction between International and Non-International Armed Conflicts’ (2007) 20 LJIL 441; K Mastorodimos, ‘The Character of the Conflict in Gaza: Another Argument Towards Abolishing the Distinction between International and Non-International Armed Conflicts’ (2010) 12 ICLR 437.
15 This was demonstrated throughout chapter 4.
16 Similarly, see D Kretzmer, ‘Rethinking Application of IHL in Non-International Armed Conflicts’ (2009) 42 Isr L Rev 8.
17 Others too have recognized the need for developments to build on, rather than replace, existing law: see, eg, University Centre for International Humanitarian Law, ‘Expert Meeting on the Supervision of the Lawfulness of Detention During Armed Conflict’, Graduate Institute of International Studies, Geneva, 24–5 July 2004, 41; J Pejic, ‘Procedural Principles and Safeguards for Internment/Administrative Detention in Armed Conflict and Other Situations of Violence’ (2005) 87 IRRC 375; T Davidson and K Gibson, ‘Experts Meeting on Security Detention Report’ (2009) 40 Case W Res J Intl L 323, 340–42; JB Bellinger and VM Padmanabhan, ‘Detention Operations in Contemporary Conflicts: Four Challenges for the Geneva Conventions and Other Existing Law’ (2011) 105 AJIL 201.
18 See sections 5.2 (on state practice) and 6.1 (on human rights treaty body practice).
19 Compare, eg, sections 6.1.1 (Human Rights Committee (HRC)), 6.1.2 (European Court of Human Rights (ECtHR)), and 6.1.3 (inter-American institutions).
20 Similarly, see HRC, General Comment No 29: States of Emergency (Article 4), CCPR/C/21/Rev.1/Add.11, 31 August 2001, [11]; Inter-American Commission on Human Rights (IACiHR), ‘Report on Terrorism and Human Rights’, OEA/Ser.L/V/II.116 Doc. 5 rev. 1 corr., 22 October 2002, ch III [127].
21 A and others v UK, App No 3455/05, Judgment (Grand Chamber), 19 February 2009, [172].
22 Similarly, see Ireland v UK, App No 5310/71, Judgment (Merits), 18 January 1978, [200]; HRC, ‘Concluding Observations: United States of America’, CCPR/C/USA/CO/3, 15 September 2006, [18].
23 See the discussion on this throughout chapter 2.
24 Arts 21 and 118 GCIII.
26 Chairman’s Commentary (n 9) [1.3].
27 See, eg, ‘Report of the Independent International Fact-Finding Mission on the Conflict in Georgia: Volume II’, September 2009, 360–2 (South Ossetian forces detaining Georgian armed forces).
28 ICRC, Strengthening International Humanitarian Law, Protecting Persons Deprived of their Liberty: Thematic Consultation of Government Experts on Grounds and Procedures for Internment and Detainee Transfers, Montreux, Switzerland, 20–22 October 2014, 18 (noting that some experts considered a status-based approach to internment in non-international armed conflicts to be appropriate).
29 N Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (ICRC, Geneva 2009) (hereinafter ‘ICRC Guidance’) 28 (noting that the wording of common Art 3 and APII demonstrates that civilians, armed forces, and organized armed groups ‘are mutually exclusive categories also in non-international armed conflict’).
30 JK Kleffner, ‘From “Belligerents” to “Fighters” and Civilians Directly Participating in Hostilities – On the Principle of Distinction in Non-International Armed Conflicts One Hundred Years After the Second Hague Peace Conference’ (2007) 54 NILR 315, 321.
32 ICRC Guidance (n 29) 32; Sassòli and Olson (n 7) 607–8.
33 ICRC Guidance (n 29) 33.
35 Ibid, 32–3; N Melzer, ‘Keeping the Balance between Military Necessity and Humanity: A Response to Four Critiques of the ICRC’s Interpretive Guidance on the Notion of Direct Participation in Hostilities’ (2010) 42 NYU J Intl L & Pol 831, 839. Similarly, see Sassòli and Olson (n 7) 623.
36 ICRC Guidance (n 29) 33.
37 ICRC Guidance (n 29) 34.
38 K Watkin, ‘Opportunity Lost: Organized Armed Groups and the ICRC “Direct Participation in Hostilities” Interpretive Guidance’ (2010) 42 NYU J Intl L & Pol 641, 676.
39 Respondents’ Memorandum Regarding the Government’s Detention Authority Relative to Detainees Held at Guantanamo Bay, In Re: Guantanamo Bay Detainee Litigation, Misc No 08-442 (TFH) (DDC 13 March 2009) 6–7 <http://www.justice.gov/opa/documents/memo-re-det-auth.pdf> accessed 7 August 2015; Hamlily v Obama, 616 F Supp 2d 63 (DDC 2009) 75.
40 Gherebi v Obama, 609 F Supp 2d 43 (DDC 2009) 68, citing CA Bradley and JL Goldsmith, ‘Congressional Authorization and the War on Terrorism’ (2005) 118 Harv L Rev 2047, 2114–5; Hamlily (n 39) 75.
42 Kleffner (n 30) 334 (fn 90); Watkin (n 38) 678; UK Ministry of Defence, The Manual of the Law of Armed Conflict (OUP, Oxford 2004) 143 (fn 25).
43 Kleffner (n 30) 334; ICRC Guidance (n 29) 32–3; Sassòli and Olson (n 7) 609; A and B v State of Israel, Crim A 3261/08 (11 June 2008) (Israeli Supreme Court) 23.
44 Arts 43 and 78 GCIV. See section 2.3.1.
49 ICRC Guidance (n 29) 33.
51 Basardh v Obama, 612 F Supp 2d 30 (DDC 2009). Cf Awad v Obama, 608 F 3d 1 (DC Cir 2010) 18.
52 Similarly, see In re Guantanamo Detainee Cases, 355 F Supp 2d 443 (DDC 2005) 465–6; cf Al-Bihani v Obama and others [2010] 140 ILR 716 (DC Cir) 727; CA Bradley and JL Goldsmith, ‘Congressional Authorization and the War on Terrorism’ (2004–5) 118 Harv L Rev 2047, 2124–5; Sassòli and Olson (n 7) 624; MC Waxman, ‘The Structure of Terrorism Threats and the Laws of War’ (2010) 20 Duke J Comp & Intl L 429, 452–4; Bellinger & Padmanabhan (n 17) 228–33.
54 Y Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (2nd edn CUP, Cambridge 2010) 41.
55 Art 132(1) GCIV. See section 2.4.1.
56 Arts 43(1) and 78(2) GCIV. See section 2.3.1.
59 On non-derogability of the human rights rule, see section 6.1.5. On the binding nature of these rules for non-state groups, see sections 3.4 (IHL) and 6.3 (IHRL). It was noted in section 6.3, however, that the customary human rights prohibition of arbitrary deprivations of liberty currently appears to bind non-state groups in control of territory only. By contrast, the IHL norm applies to any group that is a party to a non-international armed conflict.
62 HRC, A v Australia, CCPR/C/59/D/560/93, 3 April 1997, [9.2]; Inter-American Court of Human Rights (IACtHR), Chaparro Alvarez and Lapo Iniguez v Ecuador, Judgment, IACtHR (Series C) No 170 (2007) [93]; ECtHR, Saadi v UK, App No 13229/03, Judgment, 29 January 2008, [70].
63 Similarly, see Chatham House and ICRC (n 7) 6; ICRC, Strengthening International Humanitarian Law (n 28) 20–3.
64 Pejic (n 17) 380; Chatham House and ICRC (n 7) 5; ICRC, Strengthening International Humanitarian Law (n 28) 10–12. See section 4.2.1.1.
65 ECtHR, Medvedyev and others v France, App No 3394/03, Judgment (Grand Chamber), 29 March 2010, [80]. Similarly, see IACiHR, Dayra María Levoyer Jiménez v Ecuador, Report No 66/01, 14 June 2001, [37]; ACiHPR, Amnesty International and others v Sudan, Communication Nos 48/90, 50/91, 52/91, and 89/93 (2003), [58]–[60].
66 HRC, General Comment No 35: Article 9 (Liberty and security of person), CCPR/C/FC/35, 16 December 2014, [66].
67 Amnesty International v Sudan (n 65) [58]–[60]. Similarly, see Chatham House and ICRC (n 7) 8 (warning that, whilst the internment standard in Colin Powell’s annexed letter to UNSC Res 1546 (2004) is arguably sufficient, a UNSC Res authorizing simply ‘all necessary measures’ probably would not be).
68 Prosecutor v Zejnil Delalić et al (Trial Judgment) ICTY-96-21 (16 November 1998) [577]. This standard was originally included in Pictet, GCIV (n 13) 257–8. The standard has been adopted for international conflicts in UK Ministry of Defence, Manual (n 42) at 230.
70 In Steel and others v UK, App 24838/94, Judgment, 23 September 1998, at [54], the ECtHR emphasized that the legal basis for detention must be sufficiently detailed so as to enable individuals to know what the consequences of their actions will be.
71 D Akande and S Williams, ‘International Adjudication on National Security Issues: What Role for the WTO?’ (2003) 43 Va J Intl L 365, 382–3 and 396–8.
73 Delalić (n 68) [577]; Prosecutor v Zejnil Delalić et al (Appeals Judgment) ICTY-96-21-A (20 February 2001) [327]; Prosecutor v Dario Kordić and Mario Čerkez (Trial Judgment) ICTY-95-14/2-T (26 February 2001) [284]; EECC, Civilians Claims, Ethiopia’s Claim 5 (Ethiopia/Eritrea), Partial Award, 17 December 2004, 135 ILR 427, [102]–[104]; Pictet, GCIV (n 13) 258; UK Ministry of Defence, Manual (n 42) 230.
74 Delalić (n 68) [577]; Kordić and Čerkez (n 73) [284]; Pictet, GCIV (n 13) 258.
75 Hamdi et al v Rumsfeld et al, 542 US 507 (2004), 521 (US Supreme Court); Pejic (n 17) 380; Chatham House and ICRC (n 7) 5; Davidson and Gibson (n 17) 343–4.
76 Y Sandoz, C Swinarski and B Zimmerman (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (ICRC/Martinus Nijhoff, Geneva 1987) 871; Israel, MOJ, Fact Sheet on Administrative Detention (2003) 3, cited in Debuf (n 7) 406.
77 Delalić (n 68) [578]; Kordić and Ćerkez (n 73) [285]; Prosecutor v Milorad Krnojelac (Trial Judgment) ICTY-97-25 (15 March 2002) [123]; Pictet, GCIV (n 13) 258; Pejic (n 17) 381.
78 A and B v Israel (n 43) [21].
79 This compromise should help to address the concerns raised by both those advocating a status-based approach to internment in non-international armed conflicts and those advocating an individual threat-based approach: ICRC, Strengthening International Humanitarian Law (n 28) 18–19.
80 On the absence of such a legal basis, see section 3.1.
81 LM Olson, ‘Practical Challenges of Implementing the Complementarity between International Humanitarian and Human Rights Law—Demonstrated by the Procedural Regulation of Internment in Non-International Armed Conflict’ (2009) 40 Case W Res J Intl L 437, 451–3.
82 See, eg, Communist Party of Nepal-Maoist, Public Legal Code 2060 (2003/04); LTTE, Tamil Eelam Child Protection Act (Act No 3 of 2006), cited in S Sivakumaran, The Law of Non-International Armed Conflict (OUP, Oxford 2012) 140.
83 UN Commission on Human Rights, Report of the Working Group on Arbitrary Detention, E/CN.4/2005/6, 1 December 2004, [54(a)].
86 Similarly, see Copenhagen Principles (n 9) Principle 7; Pejic (n 17) 384; Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, 1988, UNGA Res 43/173, 9 December 1988, Principle 10.
87 See Chatham House and ICRC (n 7) at 13, where it notes that certain experts considered that an appropriate balance between an internee’s rights and the necessities of the situation might be a phased release of information, with more general reasons given at the point of capture and more detailed reasons given at the initial review stage.
88 See, eg, the discussion in section 6.1.2 on the ECtHR’s case law here: A and others (n 21) [220] (confirming that withholding evidence from the detainee, but not from the court, for security reasons is acceptable so long as most of the evidence relied upon is open to the detainee and sufficiently detailed). Similarly, see Chatham House and ICRC (n 7) 10.
89 HRC, General Comment No 35 (n 66) [25]; ECtHR, Van der Leer v Netherlands, App No 11509/85, Judgment, 21 February 1990, [28]; Juan Humberto Sanchez v Honduras, Judgment, IACtHR (Ser C) No 99 (2003), [82]. Similarly, see Chatham House and ICRC (n 7) 11.
90 Chatham House and ICRC (n 7) 13 (noting Israeli practice, where the court could order that evidence be declassified).
91 Whilst the other human rights treaty bodies took the same view, the IACiHR was shown to differ here: Coard et al v United States, Report No 109/99, 29 September 1999, [58].
92 This approach was accepted by the ECtHR: Ireland v UK (n 22) [218]–[219].
93 Body of Principles (n 86) Principle 32(1); UN Commission on Human Rights, ‘The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights’, E/CN.4/1985/4, 28 September 1984, [70(d)]. The Turku Declaration appears to borrow from the less defined review procedures in Art 78 GCIV: Declaration of Minimum Humanitarian Standards Adopted by an Expert Meeting Convened by the Institute for Human Rights, Abo Akademi University, Turku, Finland, 2 December 1990, Art 11.
95 Pictet, GCIV (n 13) 260; Pejic (n 17) 387.
96 Similarly, see Chatham House and ICRC (n 7) 17.
97 Pictet, GCIV (n 13) 260; Pejic (n 17) 386–7; Chatham House and ICRC (n 7) 15.
98 Similarly, see ICRC, Strengthening International Humanitarian Law (n 28) 28; UK Ministry of Defence, Joint Doctrine Publication 1-10: Captured Persons (CPERS) (3rd edn, MOD, 2015) Annex 1B [1B3]. The Copenhagen Principles, although requiring impartiality, do not require independence from the chain of command: Copenhagen Principles (n 9) Principle 12.
99 See above, text to n 71.
100 It was noted that there is human rights practice promoting the use of criminal proceedings over administrative detention: see, eg, Pejic (n 17) 380–1. For the non-state side, transfer to the criminal jurisdiction may not be possible, however.
101 AE Wall, ‘Civilians Detentions in Iraq’ in MN Schmitt and J Pejic (eds), International Law and Armed Conflict: Exploring the Faultlines (Brill, The Hague 2007) 433.
102 Delalić (n 73) [329]; ICRC, Strengthening International Humanitarian Law (n 28) 29. The Copenhagen Principles do not require this: compare, eg, the statement that it ‘may be appropriate’ for the reviewing authority in cases of penal detention to have the power to order release, with the absence of any such reference with regard to the reviewing authority in cases of security detention: Chairman’s Commentary (n 9) [13.2].
103 Delalic (n 73) [329]; HCJ 466/86, Abu Bakr v Judge of the Military Court in Schechem, 40(3) PD 649, 650–1 (Israeli Supreme Court), cited in Y Dinstein, The International Law of Belligerent Occupation (CUP, Cambridge 2009) 176.
104 ICRC, Strengthening International Humanitarian Law (n 28) 25.
105 Pictet, GCIV (n 13) 261.
106 UK Ministry of Defence (n 98) Annex 1B [1B5].
107 Executive Order 13,567 (7 March 2011), ‘Periodic Review of Individuals Detained at Guantanamo Bay Naval Station Pursuant to the Authorization for Use of Military Force’, s 3(c).
108 Similarly, see Chairman’s Commentary (n 9) [12.3]; ICRC, Strengthening International Humanitarian Law (n 28) 26–7.
109 Similarly see Body of Principles (n 86) Principle 17; Expert Meeting on the Supervision of the Lawfulness of Detention During Armed Conflict, University Centre for International Humanitarian Law, Geneva, 24–5 July 2004, 44 (noting that, whilst it may not be practicable to provide a lawyer immediately at capture, once removed from the battlefield and taken to a detention centre, a lawyer should be provided); Pejic (n 17) 388; Chatham House and ICRC (n 7) 14.
110 Similarly see Pejic (n 17) 389; Chatham House and ICRC (n 7) 15.
111 See, eg, the discussion of the Multi-National Force Review Committee in Iraq in BJ Bill, ‘Detention Operations in Iraq: A View from the Ground’ in RA Pedrozo (ed), The War in Iraq: A Legal Analysis (2010) (Vol 86, US Naval War College International Law Studies) 428–34.
112 S Sivakumaran, ‘Courts of Armed Opposition Groups: Fair Trials or Summary Justice?’ (2009) 7 JICJ 489.
113 See section 4.3.2. Similarly, see HRC, C v Australia, CCPR/C/76/D/900/1999, 28 October 2002, [8.2]; HRC, Baban et al v Australia, CCPR/C/78/D/1014/2001, 18 September 2003, [7.2].
115 Similarly, see Pejic (n 17) 382–3; Copenhagen Principles (n 9) Principle 4.2.
116 Arts 132(1) and 133(1) GCIV.
117 IACiHR, ‘Annual Report: 1976’, OAS Doc. OEA/Ser.L/V/II.40, Doc. 5 corr. 1 of 7 June 1977, Section II, Part II; UN Commission on Human Rights, Report of the Working Group on Arbitrary Detention, E/CN. 4/2004/3, 15 December 2003, [60]; UN Working Group on Arbitrary Detention, Obaidullah v United States, A/HRC/WGAD/2013/10, 12 June 2013, [24]; HRC, General Comment No 35 (n 66) [15].
118 This is confirmed by practice acknowledging that internment is not necessarily inconsistent with IHRL: see section 4.2.1.1.
119 Similarly, see CFH 7048/97, Anonymous v Minister of Defence, 54(1) PD 721 (Israeli Supreme Court) [25]; HRC, General Comment No 35 (n 66) [15].
120 Saadi v UK (n 62) [70].
121 The exception, as noted, is that customary human rights law appears, presently, to be binding on non-state armed groups only where they control territory: section 6.3.
122 See, eg, Art 4(1) ICCPR; Art 15(1) ECHR; HRC, General Comment No 29: States of Emergency (Article 4), CCPR/C/21/Rev.1/Add.11, 31 August 2001, [4]; R Higgins, ‘Derogations under Human Rights Treaties’ (1976) 48 BYIL 281, 282–3.
123 Brief of Amici Curiae Specialists in Israeli Military Law and Constitutional Law in Support of Petititioners, Boumediene et al v Bush et al, On Writs of Certiorari to the United States Court of Appeals for the District of Columbia Circuit. This is discussed in section 6.1.5.
124 R Geiß, ‘Military Necessity: A Fundamental “Principle” Fallen into Oblivion’ (2008) 2 ESIL Proc 554, 559. Similarly, see WG Downey Jr, ‘The Law of War and Military Necessity’ (1953) 47 AJIL 251, 256–60 (arguing that military necessity in IHL leads to a presumption that one can, inter alia, target and capture members of the enemy armed forces).
125 This was demonstrated throughout chapter 4.
126 This notion of lex specialis was discussed regarding internment in international armed conflict in section 5.1.2.
127 This approach is based on a more general proposal by the present author for developing the law of non-international armed conflict: L Hill-Cawthorne, ‘The Role of Necessity in International Humanitarian and Human Rights Law’ (2014) 47 Isr L Rev 225.
128 On the importance of equality of belligerents under IHL for compliance, see Sassòli and Olson (n 7) 609–10; F Bugnion, ‘Jud Ad Bellum, Jus In Bello and Non-International Armed Conflicts’ (2003) 6 YIHL 167; C Greenwood, ‘Historical Development and Legal Basis’ in Dieter Fleck (ed), The Handbook of International Humanitarian Law (2nd edn OUP, Oxford 2008) 10–11. Cf G Blum, ‘On a Differential Law of War’ (2011) 52 Harv Intl LJ 163.
