Part III International Human Rights law, 4 Detention under IHRL

Subject(s):

Habeas corpus — Detention — Customary international law

This chapter examines the procedural rules applicable to detention under international human rights law (IHRL). It first demonstrates that IHRL, as a body of law, prima facie applies in any situation, including international and non-international armed conflict. It then examines the procedural rules applicable to detention under the principal international and regional human rights treaties, as developed in jurisprudence. Finally it offers an assessment of the state of customary international law here and, in particular, the degree to which those treaty rules have crystallized as custom. It is shown that the basic arbitrary detention prohibition, together with the requirement of release where the reasons cease, are clearly custom. However, the customary nature of the other procedural rules is more controversial.