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Part III International Human Rights law, 6 The Practical Application of IHRL to Detention in Non-International Armed Conflict

From: Detention in Non-International Armed Conflict

Lawrence Hill-Cawthorne

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.date: 16 May 2022

Detention — Derogations — Armed conflict, non-international — State succession, international agreements — Extraterritorial application of treaties

Chapter 5 demonstrated that the international human rights law (IHRL) rules on detention fully apply to detentions in relation to non-international armed conflicts. This chapter explores their practical application, focusing on how far derogation from these rules is permissible and the extent to which they might be ‘read down’ without derogating. In doing so, it examines comprehensively the relevant human rights treaty body jurisprudence. The divergent approaches of the treaty bodies are demonstrated, with a principled proposal offered for reconciling them. Two remaining issues are then considered for the applicability of the IHRL rules on detention in non-international conflicts: their extraterritorial application and their binding nature for non-state armed groups. It is shown that states continue to be bound by these rules in military operations abroad, but that the human rights treaty rules on detention do not bind non-state armed groups, revealing a key shortcoming with the existing law.

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