Vo|ume 87 humber 858 June 2005

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A|m aod scope
The lnternational Review of the Red Cross is a periodical
puolished o] the lCRC. lts aim is to promote reflection on
humanitarian law, polic] and action in armed conflict and
other situations of collective armed violence. A special-
ized journal in humanitarian law, it endeavours to promote
knowledde, critical anal]sis and development of the law and
contrioute to the prevention of violations of rules protectind
fundamental ridhts and values. The Review offers a forum for
discussion aoout contemporar] humanitarian action as well
as anal]sis of the causes and characteristics of conflicts so
as to dive a clearer insidht into the humanitarian proolems
the] denerate. Finall], the Review informs its readership on
uuestions pertainind to the lnternational Red Cross and Red
Crescent Novement and in particular on the activities and
policies of the lCRC.
*OUFSOBUJPOBM$PNNJUUFFPGUIF3FE$SPTT
The Inteinational Committee of the Red Cioss (ICRC)
is an impaitial, neutial and independent oiganization
whose exclusivelv humanitaiian mission is to piotect the
lives and dignitv of victims of wai and inteinal violence
and to piovide them with assistance. It diiects and cooi-
dinates the inteinational ielief activities conducted bv
the Movement in situations of conflict. It also endeav-
ouis to pievent suffeiing bv piomoting and stiength-
ening inteinational humanitaiian law and univeisal
humanitaiian piinciples. Established in 1863, the ICRC
is at the oiigin of the Inteinational Red Cioss and Red
Ciescent Movement.
.FNCFSTPGUIF$PNNJUUFF
Piesident: Iakob Kellenbeigei
Vice-Piesident: Oliviei Vodoz
Peimanent Vice-Piesident: Iacques Foistei
Iean Abt Paola Ghillani
Iean-Philippe Assal Claude Le Coultie
Chiistine Beeili Iacques Moieillon
Paolo Beinasconi Gabiielle Nanchen
Einst A. Biuggei Yves Sandoz
Susv Biuschweilei Daniel Thüiei
Iean de Couiten Andié von Moos

&EJUPSJO$IJFG
Toni Pfannei
ICRC
&EJUPSJBM#PBSE
Ahmed Abou El-Wafa
Cairo University, Egypt
Daniel Bai-Tal
Tel Aviv University, Israel
Annette Beckei
Universite Paris X, France
Antonio Cançado Tiindade
University of Brasilia, Brazil
Maiika Fahlen
Ministry for Foreign Affairs, Stockholm,
Sweden
Beinaid Havkel
^ew York University, USA
V. S. Mani
Gujarat ^ational Law University,
Gandhinagar, Gujarat, India
Heifiied Münklei
Humboldt University, Berlin, Germany
Mona Rishmawi
Office of the United ^ations High
Commissioner for Human Rights, Geneva
Elizabeth Salmon Gaiate
Pontificia Universidad Catolica del Peru,
Lima, Peru
Maico Sassoli
University of Geneva, Switzerland
Michael N. Schmitt
George C. Marshall European Center for
Security Studies, Garmisch Partenkirchen,
Germany
Teience Tavloi
International Institute for Strategic Studies,
London/Vashington DC, UK/USA
Bakhtivai R. Tuzmukhamedov
Diplomatic Academy, Moscow, Russian
Federation
Wen-qi Zhu
Law School, Renmin University of China,
Beijing, People´s Republic of China
Volume 87 humoer 858 June 2OO5
375
Inteinment oi administiative detention is deĐned as the depiivation of libeitv of
a peison that has been initiated/oideied bv the executive bianch - not the judici-
aiv - without ciiminal chaiges being biought against the inteinee/administiative
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Deprivation of liberty for security reasons is an exceptional measure of control
that may be taken in armed conflict, whether international or non-international.
Administrative detention of persons believed to represent a threat to State
security is also being more and more widely practised outside of armed conflict
situations. This paper argues that both internment and administrative detention
are insufficiently elaborated from the point of the view of the protection of the
rights of the persons affected. Drawing on international humanitarian law and on
human rights law and standards, the paper proposes a set of procedural principles
and safeguards that should - as a matter of law and policy - be applied as a
minimum to all cases of deprivation of liberty for security reasons.

¯ Ăe views expiessed in this aiticle ieēect the authoi's opinions and not necessaiilv those of the ICRC.
J. Pejic - Procedural principles for internment/administrative detention
376
detainee.
1
Inteinment is an exceptional measuie of contiol that mav be oideied
foi secuiitv ieasons in aimed conēict, oi foi the puipose of piotecting State secu-
iitv oi public oidei in non-conēict situations piovided the iequisite ciiteiia have
been met.
2
Ăe puipose of this text is to outline pioceduial piinciples and safe-
guaids that govein inteinment/administiative detention in aimed conēict and in
othei situations of violence as a mattei both of law and of policv.
3

In the text, the teims ¨inteinment" and ¨administiative detention" aie
inteichangeablv used.
4
The definition of inteinment theiefoie does not include
the lawful pie-tiial detention of a peison held on ciiminal chaiges, whethei in
oi outside aimed conflict. Also, foi the puiposes of this text, it does not include
the inteinment of piisoneis of wai (POWs) in inteinational aimed conflicts,
which is a specific and sepaiate iegime of depiivation of libeitv.
Insofai as aimed gioups involved in non-inteinational aimed conflicts
depiive peisons of libeitv in piactice - iegaidless of the lawfulness of such
conduct - thev aie bound bv the applicable tieatv-based and customaiv iules
of inteinational humanitaiian law goveining non-inteinational aimed conflicts
summaiized in this text. Wheie piacticallv feasible, the othei piinciples and
safeguaids set foith below should also be applied as a means of ensuiing the
piotection of peisons depiived of theii libeitv.
5

The ieason foi outlining the pioceduial piinciples and safeguaids that
govein inteinment/administiative detention is that although this tvpe of depii-
vation of libeitv is often piactised in both inteinational and non-inteinational
aimed conflicts and othei situations of violence, the piotection of the iights of
the peisons affected bv it is insufficientlv elaboiated.
6
Fuitheimoie, it is faiilv common that in piactice people inteined oi
held in administiative detention aie not oi aie onlv vaguelv infoimed of the
ieasons foi theii depiivation of libeitv. Theie is often no mechanism in place to
ieview, initiallv and peiiodicallv, the lawfulness of inteinment/administiative
detention oi, if theie is one, its lack of independence pievents it fiom effec-
tivelv examining cases. The question of legal assistance to inteinees/administia-
tive detainees in challenging the lawfulness of theii inteinment/administiative
detention iemains contentious, as do othei issues, such as contact foi inteinees/
administiative detainees with theii families, familv visits to them, etc.
1 See Commentary on the Additional Protocols of 8 Iune 1977 to the Geneva Conventions of 12 August 1949,
ICRC/Maitinus Nijhoć Publisheis, Geneva, 1987, ¨Commentaiv on Piotocol I ielative to inteinational
aimed conēicts", Ait. 75 (3), paia. 3063.
2 Ăe ielevant ciiteiia, which aie explained in gieatei detail below, aie laid down in Aiticle 4 of the
Inteinational Covenant on Civil and Political Rights (ICCPR).
3 Ăe teim ¨othei situations of violence" iefeis to situations below the thieshold of aimed conēict and includes
situations of ¨inteinal distuibances oi tensions" as speciĐed in Aiticle 1 (2) of Additional Piotocol II.
4 Ăe teim ¨inteinment" is also intended to covei the notion of ¨assigned iesidence," to which identical
piovisions of the Fouith Geneva Convention applv.
5 Ăis should in no wav be iead as iefeiiing to (oi legitimizing) the piactice of hostage-taking, which
is stiictlv piohibited bv inteinational humanitaiian law. Ăe ICRC's position is that hostages must be
immediatelv and unconditionallv ieleased.
6 Foi dićeiences in the legal iegulation of inteinment in inteinational and non-inteinational aimed
conēicts and in othei situations of violence see section I, ¨Legal souices," below.
Volume 87 humoer 858 June 2OO5
377
-FHBMTPVSDFT
The legal souices on which the piesent standaids aie based aie the Fouith Geneva
Convention; Aiticle 75 of Additional Piotocol I to the Geneva Conventions,
which is consideied to ieflect customaiv inteinational law; Aiticle 3 common
to the Geneva Conventions; Additional Piotocol II theieto; and customaiv iules
of inteinational humanitaiian law.
Even though inteinment in inteinational aimed conflicts is iegulated bv
the Fouith Geneva Convention and Additional Piotocol I,
7
these tieaties do not
sufficientlv elaboiate on the pioceduial iights of inteinees, noi do thev specifv
the details of the legal fiamewoik that a detaining authoiitv must implement. In
non-inteinational aimed conflicts theie is even less claiitv as to how administia-
tive detention is to be oiganized. Aiticle 3 common to the Geneva Conventions,
which is applicable as a minimum standaid to all non-inteinational aimed con-
flicts, contains no piovisions iegulating inteinment, i.e. administiative deten-
tion foi secuiitv ieasons, apait fiom the iequiiement of humane tieatment.
Inteinment is, howevei, cleailv a measuie that can be taken in non-inteinational
aimed conflict, as evidenced bv the language of Additional Piotocol II, which
mentions inteinment in Aiticles 5 and 6 iespectivelv, but likewise does not give
details of how it is to be oiganized. Beaiing in mind the piinciples of humanitv
and the dictates of public conscience (the Maitens clause),
8
the piinciples and
iules of the Fouith Geneva Convention mav, in piactice, seive as guidance in
non-inteinational aimed conflicts in iesolving some of the pioceduial issues
mentioned in this text.
In addition to humanitaiian law, the piesent analvsis diaws on human
iights law, of both a binding and a non-binding natuie (¨soft law"), as a com-
plementaiv souice of law in situations of aimed conflict oi as an autonomous
souice of law outside of aimed conflict. The complementaiv ielationship
between humanitaiian and human iights law has most iecentlv been con-
fiimed bv the Inteinational Couit of Iustice, the UN's piincipal legal bodv. In
a Iulv 2004 Advisoiv Opinion, the Couit stated that humanitaiian and human
iights law aie bv no means mutuallv exclusive. Accoiding to the Couit, some
iights aie piotected onlv bv human iights law, some aie piotected onlv bv
humanitaiian law, and ¨vet otheis mav be matteis of both these bianches of
inteinational law."
9
The iights of peisons inteined foi secuiitv ieasons in aimed con-
flict - whethei inteinational oi non-inteinational - mav be said to fall into
the categoiv of iights that, in the ICI's woiding, aie ¨matteis" of both bianches
7 GC IV, Aits. 43 and 78; AP I, Ait. 75 (3).
8 Ăe Maitens clause is, inter alia, included in Aiticle 1 (2) of Additional Piotocol I which ieads: ¨In cases
not coveied bv this Piotocol oi bv othei inteinational instiuments, civilians and combatants iemain
undei the piotection and authoiitv of the piinciples of inteinational law deiived fiom established custom,
fiom the piinciples of humanitv and fiom the dictates of public conscience."
9 ICI Advisoiv Opinion on the Legal Consequences of the Constiuction of a Wall in the Occupied
Palestinian Teiiitoiv, 9 Iulv 2004, paia. 106.
J. Pejic - Procedural principles for internment/administrative detention
378
of law. Given the afoiesaid absence of iules foi the inteinment of individuals
in non-inteinational aimed conflicts, it is necessaiv to diaw on human iights
law in devising a list of pioceduial piinciples and safeguaids to govein intein-
ment in such conflicts. To a laige extent the same mav be said with iegaid to
anv effoit to claiifv the iights, and theiefoie the legal piotection, that should be
accoided to peisons coveied bv the Fouith Geneva Convention oi Additional
Piotocol I in inteinational aimed conflicts.
Recouise to human iights law as a legal iegime complementaiv to
humanitaiian law is expiesslv iecognized in both Additional Piotocols to the
Geneva Conventions.
Accoiding to Aiticle 72 of Additional Piotocol I: ¨Ăe piovisions of this
Section [¨Tieatment of peisons in the powei of a paitv to the conēict"] aie addi-
tional to the iules conceining humanitaiian piotection of civilians and civilian
objects in the powei of a Paitv to the conēict contained in the Fouith Convention,
paiticulailv Paits I and III theieof, as well as to other applicable rules of interna-
tional law relating to the protection of fundamental human rights during interna-
tional armed conēict" (emphasis added). Ăis aiticle allows iecouise to human
iights law as an additional fiame of iefeience in iegulating the iights of inteinees,
who belong to ¨peisons in the powei of a paitv to the conēict."
10
Ăeie aie two fuithei indications - in Aiticle 75 of Additional Piotocol I,
which is consideied to ieflect customaiv law - that human iights law mav be
diawn on to fill the gaps. Fiist, and this must be stiessed, Aiticle 75 (1) states
that peisons falling within its scope shall enjov the piotection piovided foi bv
this aiticle ¨as a minimum" (emphasis added). Given that Aiticle 75 is a ¨safetv
net" meant to covei all peisons who do not enjov moie favouiable tieatment
undei the Geneva Conventions oi Piotocol I, and when it is iead in conjunction
with Aiticle 72, it necessaiilv follows that the ¨minimum" mentioned is supple-
mented bv othei piovisions of humanitaiian and human iights law.
Secondlv, anv possible doubt that Aiticle 75 constitutes a minimum
benchmaik of piotection is dispelled bv the final clause theieof: ¨No piovi-
sion of this Aiticle mav be constiued as limiting oi infiinging anv othei moie
favouiable piovision gianting gieatei piotection, undei anv applicable iules of
inteinational law, to peisons coveied bv paiagiaph 1."
11
The applicable iules of
inteinational law include human iights law.
In non-inteinational aimed conflicts the piovisions of Common
Aiticle 3 and of Additional Piotocol II aiticulate minimum standaids that must
be applied in inteinment. Wheie the paities to a non-inteinational aimed conēict
biing into foice, bv means of special agieements, all oi pait of the piovisions
of the Fouith Geneva Convention, the piovisions of such an agieement
pievail.
12
It must be noted that pieambulai paiagiaph 2 of Additional Piotocol II
10 See ¨Commentaiv on AP I", op. cit. (note 1), paias. 2927- 2935.
11 AP I, Ait. 75 (8).
12 See Aiticle 3 common to the Geneva Conventions, which also speciĐes that the conclusion of a special
agieement ¨shall not aćect the legal status of Paities to the conēict." Special agieements can be ećective
paiticulailv in high-intensitv non-inteinational aimed conēicts which iesemble intei-State aimed conēict.
Volume 87 humoer 858 June 2OO5
379
establishes the link between the Piotocol and human iights law bv stating that
¨inteinational instiuments ielating to human iights oćei a basic piotection to the
human peison." Ăe Commentaiv on that Piotocol speciĐes that the iefeience
to inteinational instiuments includes tieaties adopted bv the UN, such as the
Inteinational Covenant on Civil and Political Rights (ICCPR) and the Convention
against Toituie, as well as the iegional human iights tieaties.
13
Ăe iight to libeitv of peison, which is the piimaiv focus of this text, is
inter alia piovided foi in Aiticle 9 (1) of the ICCPR. A State Paitv mav deiogate
fiom (suspend) its obligations undei that tieatv undei veiv stiict conditions, one
of which is the existence of a public emeigencv thieatening the life of the nation.
14

Non-inteinational aimed conēict is an example of a public emeigencv in which
measuies of deiogation - necessaiv foi enabling inteinment - would be lawful
undei the Covenant piovided the othei iequisite conditions have been met.
In non-conēict situations States Paities to the ICCPR must likewise complv with
the deiogation clauses of the Covenant in oidei to institute measuies aćecting
the iight to libeitv of peison, such as administiative detention. The piesent
analvsis is based on the assumption that inteinment in non-inteinational aimed
conēict and administiative detention implemented in non-conēict situations
complv with the deiogation ciiteiia speciĐed in the ICCPR.
15
Howevei, even in emeigencv situations the so-called ¨haid coie" of
human iights, which includes the iight to life and the piohibition of toituie
and othei ciuel, inhuman oi degiading tieatment oi punishment, cannot be
deiogated fiom undei anv ciicumstances.
16
The juiispiudence of inteinational
and iegional human iights bodies has deteimined which othei human iights,
apait fiom those expiesslv listed in the tieaties, should also be consideied non-
deiogable. Among them is the iight of a peison depiived of libeitv to challenge
the lawfulness of his oi hei detention (habeas coipus), which is an essential ele-
ment of the iight to libeitv of peison.
17

Human iights soft law instiuments and juiispiudence piovide fuithei
standaids that, it is submitted, should as a mattei of policv and good piactice be
applied with iespect to inteinment/administiative detention.
13 ¨Commentaiv on P II", op. cit. (note 1), paias. 4428 - 4430.
14 Ăe full text of Aiticle 4 of the ICCPR ieads: ¨1. In time of public emeigencv which thieatens the life of
the nation and the existence of which is oĊciallv pioclaimed, the States Paities to the piesent Covenant
mav take measuies deiogating fiom theii obligations undei the piesent Covenant to the extent stiictlv
iequiied bv the exigencies of the situation, piovided that such measuies aie not inconsistent with theii
othei obligations undei inteinational law and do not involve disciimination solelv on the giound of iace,
coloui, sex, language, ieligion oi social oiigin. 2. No deiogation fiom aiticles 6, 7, 8 (paias. 1 and 2), 11,
15, 16 and 18 mav be made undei this piovision. 3. Anv State Paitv to the piesent Covenant availing
itself of the iight of deiogation shall immediatelv infoim the othei States Paities to the piesent Covenant,
thiough the inteimediaiv of the Secietaiv-Geneial of the United Nations, of the piovisions fiom which
it has deiogated and of the ieasons bv which it was actuated. A fuithei communication shall be made,
thiough the same inteimediaiv, on the date on which it teiminates such deiogation."
15 In cases wheie a State is not a paitv to the ICCPR oi similai iegional human iights tieaties, it is submitted
that the pioceduial piinciples and safeguaids listed below should be followed as a mattei of policv.
16 ICCPR, Ait. 4 (2).
17 ICCPR, Ait. 9 (4).
J. Pejic - Procedural principles for internment/administrative detention
380
The commentaiv to the pioceduial piinciples and safeguaids outlined
in this text mentions the diffeient legal souices goveining depiivation of libeitv
foi secuiitv ieasons in inteinational aimed conflicts, non-inteinational aimed
conflicts and othei situations of violence. It is pieciselv the similaiitv in content
of the vaiious legal souices ieviewed that guided the specific foimulation of the
pioceduial piinciples and safeguaids listed, and which allows the conclusion
that thev can be consideied a minimum applicable in all cases of depiivation of
libeitv foi secuiitv ieasons.
18

(FOFSBMQSJODJQMFTBQQMJDBCMFUPJOUFSONFOUBENJOJTUSBUJWFEFUFOUJPO
|nternment/admlnlstratlve detentlon ls an exceptlonal measure
Ăe Fouith Geneva Convention makes it explicitlv cleai that inteinment (and
assigned iesidence) aie the most seveie measuies of contiol that a detaining
authoiitv oi Occupving Powei mav take with iespect to piotected peisons against
whom no ciiminal pioceedings have been initiated. In both cases it is stipulated
that iecouise to these measuies mav be had onlv if the secuiitv of the State makes
it ¨absolutelv necessaiv" (GC IV, Aiticle 42) oi foi ¨impeiative ieasons of secu-
iitv" (GC IV, Aiticle 78). Ăe exceptional natuie of inteinment lies in the fact that
it allows the detaining authoiitv to depiive peisons of libeitv who aie not subject
to ciiminal piocess, but aie neveitheless consideied to iepiesent a ieal thieat to its
secuiitv in the piesent oi in the futuie. As the Commentaiv on the Fouith Geneva
Convention explains, ¨It did not seem possible to deĐne the expiession 'secuiitv
of the State' in a moie conciete fashion. It is thus leĔ veiv laigelv to Goveinments
to decide the measuie of activitv piejudicial to the inteinal oi exteinal secuiitv
of the State which justiĐes inteinment oi assigned iesidence."
19
While this mav be
the case it is cleai, foi example, that inteinment oi administiative detention foi
the sole puipose of intelligence gatheiing, without the peison involved otheiwise
piesenting a ieal thieat to State secuiitv, cannot be justiĐed.
20
Ăat inteinment is an exceptional measuie is also tiue in non-inteinational
aimed conēicts and othei situations of violence, based on the geneial piinciple
that peisonal libeitv is the iule, and on the assumption that the ciiminal justice
svstem is able to deal with peisons suspected of iepiesenting a dangei to State
secuiitv.
18 It should again be noted that this text does not deal with the inteinment of piisoneis of wai in inteinational
aimed conēicts, which is goveined bv the Ăiid Geneva Convention. As alieadv mentioned, it is assumed
that the iight to libeitv of peison has been deiogated fiom in keeping with Aiticle 4 of the ICCPR.
19 See Commentary on the Geneva Conventions of 12 August 1949, Vol. 1V, Geneva Convention relative to the
Protection of Civilian Persons in Time of Var, Ait. 42, p. 257. See also the Commentaiv on Aiticle 78, at
page 368, which ieiteiates that: ¨In anv case such measuies can onlv be oideied foi ieal and impeiative
ieasons of secuiitv; theii exceptional chaiactei must be pieseived."
20 Similailv, inteining oi administiativelv detaining peisons foi the puipose of using them as ¨baigaining
chips" is also not justiĐable as a ieason foi inteinment. Such depiivation of libeitv would in fact amount
to hostage-taking, which is piohibited.
Volume 87 humoer 858 June 2OO5
381
|nternment/admlnlstratlve detentlon ls not an alternatlve to crlmlnal
proceedlngs
Inteinment/administiative detention is a measuie of contiol aimed at dealing
with peisons who pose a ieal thieat to State secuiitv, cuiientlv oi in the futuie,
in situations of aimed conflict, oi to State secuiitv oi public oidei in
non-conflict situations; it is not a measuie that is meant to ieplace ciiminal
pioceedings. A peison who is suspected of having committed a ciiminal
offence, whethei in aimed conflict oi othei situations of violence, has the iight
to benefit fiom the additional stiingent judicial guaiantees piovided foi in
humanitaiian and/oi human iights law foi ciiminal suspects, which include the
iight to be tiied bv a iegulailv constituted, independent and impaitial couit.
Unless inteinment/administiative detention and penal iepiession aie oiganized
as stiictlv sepaiate iegimes theie is a dangei that inteinment might be used as
a substandaid svstem of penal iepiession in the hands of the executive powei,
bvpassing the one sanctioned bv a countiv's legislatuie and couits. The iights of
ciiminal suspects would thus be giavelv undeimined.
21
|nternment/admlnlstratlve detentlon can only be ordered on an lndlvldual
case-by-case basls, wlthout dlscrlmlnatlon of any klnd
A civilian can be inteined in inteinational aimed conflict onlv on the basis of an
individual decision taken in eveiv specific case. The notion that inteinment can-
not be a collective measuie is established undei the Fouith Geneva Convention
in situations of occupation.
22
En bloc inteinment of enemv nationals in a State's
own teiiitoiv is also piohibited, as it would amount to, and violate the geneial
piohibition of, ¨collective punishments" undei Aiticle 75 (2) (d) of Additional
Piotocol I. This does not mean that a detaining authoiitv cannot intein a laige
numbei of peisons, but that both the initial decision on inteinment and anv
subsequent decision to maintain it, including the ieasons foi inteinment, must
be taken with iespect to each individual involved.
In non-inteinational aimed conflicts - in which collective punish-
ments aie also piohibited
23
- and in othei situations of violence, both the initial
21 Ăe aigument that administiative and ciiminal detention aie two distinct iegimes is - at Đist glance -
undeimined bv Aiticle 68 of the Fouith Geneva Convention which deals with pettv oćences committed
bv piotected peisons in occupied teiiitoiv. Ăe Commentaiv on Aiticle 68, howevei, iectiĐes anv possible
peiception of oveilap between the iegimes of administiative and ciiminal detention that the woiding
of the piovision suggests. It ieads: ¨Inteinment is a pieventive administiative measuie and cannot be
consideied a penal sanction. It is neveitheless mentioned heie undei the same head[ing] as simple
impiisonment, because the authois of the Convention wished to make it possible foi the militaiv couits
of the Occupving Powei to give peisons guiltv of minoi oćences the beneĐt of conditions of internment
(emphasis added) piovided foi in Aiticle 79 et seq. Ăe piovision was a humane one and was intended
to diaw a distinction between such oćendeis and common ciiminals." Commentary on GC IV, op. cit.
(note 19), pp. 343-344.
22 Ibid., Ait. 78, p. 367.
23 AP II, Ait. 4 (2) (b).
J. Pejic - Procedural principles for internment/administrative detention
382
decision on inteinment/administiative detention and anv subsequent decision
to maintain it must be taken on an individual basis. Even though humanitaiian
law goveining non-inteinational aimed conflicts is silent as to the pioceduial
iights of inteinees, undei human iights law anv measuie deiogating fiom the
iight to libeitv of peison must be ¨stiictlv iequiied bv the exigencies of the situ-
ation" of public emeigencv necessitating the deiogation;
24
it mav be taken onlv
to the extent iequiied theiebv, and must thus be in accoidance with the piinci-
ple of piopoitionalitv.
A State's en bloc, non-individual detention of a whole categoiv of peisons
could in no wav be consideied a piopoitional iesponse, iegaidless of what the
ciicumstances of the emeigencv conceined might be. Ăe idea of collective measuies
of anv kind is antithetical to the iules, spiiit and puipose of human iights law.
Decisions on inteinment/administiative detention must also not be
taken on a disciiminatoiv basis. The piinciple of non-disciimination is a basic
tenet of both humanitaiian and human iights law.
|nternment/admlnlstratlve detentlon must cease as soon as the reasons
for lt cease to exlst
One of the most impoitant piinciples goveining inteinment/administiative deten-
tion is that this foim of depiivation of libeitv must cease as soon as the individual
ceases to pose a ieal thieat to State secuiitv, meaning that depiivation of libeitv
on such giounds cannot be indeĐnite. In view of the iapid piogiession of events in
aimed conēict, a peison consideied to be a thieat todav might not pose the same
thieat aĔei a change of ciicumstances on the giound. In othei woids, the longei
inteinment lasts, the gieatei the onus on a detaining authoiitv to piove that the
ieasons foi it iemain valid. Ăe iationale of the piinciple is thus to facilitate the
ielease of a peison as soon as the ieasons justifving the cuitailment of libeitv no
longei exist. Ăe piinciple that inteinment must cease as soon as the ieasons foi
it cease to exist is cleailv enunciated in the Fouith Geneva Convention (Aiticle
132) and in Aiticle 75 (3) of Additional Piotocol I, which is consideied to ieēect
customaiv inteinational law in inteinational aimed conēicts.
In non-inteinational aimed conflicts and othei situations of violence
this piinciple must, if anvthing, be even moie stiingentlv obseived, paiticulailv
as human iights juiispiudence iejects the notion of indefinite detention.
25
In
oidei to ensuie that a depiivation of libeitv is not aibitiaiv, which would be the
case if the ieasons foi it do not oi no longei exist, the ICCPR (Aiticle 9 (4)) pio-
24 ICCPR, Ait. 4 (1).
25 See e.g. Repoit of the Woiking Gioup on Aibitiaiv Detention, UN Doc. E/CN. 4/2004/3, 15 Decembei
2003, paia. 60 (¨in no event mav an aiiest based on emeigencv legislation last indeĐnitelv"), and Intei-
Ameiican Commission on Human Rights - Annual Repoit, 1976, OAS Doc. OEA/Sei.L/V/II.40, Doc. 5
coii. 1 of 7 Iune 1977, Section II, Pait I (¨the declaiation of a state of emeigencv oi a state of siege cannot
seive as a pietext foi the indeĐnite detention of individuals, without anv chaige whatevei. It is obvious
that when these secuiitv measuies aie extended bevond a ieasonable time thev become tiue and seiious
violations of the iight to fieedom").
Volume 87 humoer 858 June 2OO5
383
vides that anvone depiived of libeitv has the iight to challenge the lawfulness of
his oi hei detention - Đle a petition foi habeas coipus oi the equivalent - in oidei
that a couit mav decide ¨without delav" whethei he oi she is being held lawfullv
oi not. While the iight to libeitv is not among the non-deiogable iights listed
in the ICCPR,
26
the juiispiudence of both univeisal and iegional human iights
bodies has confiimed that the iight to habeas coipus must in fact be consideied
non-deiogable.
|nternment/admlnlstratlve detentlon must conform to the prlnclple
of legallty
In the context of inteinment/administiative detention, the piinciple of legalitv
means that a peison mav be depiived of libeitv onlv foi ieasons (substantive
aspect) and in accoidance with pioceduies (pioceduial aspect) that aie pio-
vided foi bv domestic and inteinational law.
Ăe Geneva Conventions and theii Additional Piotocols, as well as
human iights law, piovide the inteinational legal standaids that aie to be applied
to inteinment/administiative detention in aimed conēict and othei situations
of violence. In teims of ieasons foi inteinment, the Fouith Convention speciĐes
that a piotected peison mav be inteined oi placed in assigned iesidence onlv if
¨the secuiitv of the Detaining Powei makes it absolutelv necessaiv" (Aiticle 42)
oi, in occupied teiiitoiv, foi ¨impeiative ieasons of secuiitv" (Aiticle 78). In
addition to specifving the ieasons foi inteinment, the Fouith Convention lavs
down ceitain pioceduies that must be followed foi inteinment to be lawful
both in the teiiitoiv of a paitv to conflict and in occupied teiiitoiv. In the
lattei case, foi example, Aiticle 78 of the Fouith Convention stipulates that
decisions iegaiding assigned iesidence oi inteinment ¨shall be made accoiding
to a iegulai pioceduie to be piesciibed bv the Occupving Powei in accoidance
with the piovisions of the piesent Convention." Depiivation of libeitv that is
not in confoimitv with the vaiious iules piovided foi in the Convention mav
constitute ¨unlawful confinement."
27
Human iights standaids applicable in non-inteinational aimed conflicts
and othei situations of violence piovide even moie detailed piovisions aimed at
ensuiing iespect foi the piinciple of legalitv. Undei the ICCPR (Aiticle 9 (1)), foi
example, peisons mav not be depiived of theii libeitv ¨except on such giounds
and in accoidance with such pioceduie as aie established bv law." Wheie a State
decides to deiogate fiom the iight to libeitv, such a decision must, inter alia,
be officiallv pioclaimed
28
so as to enable the affected population to know the
exact mateiial, teiiitoiial and tempoial scope of application of that emeigencv
measuie.
26 ICCPR, Ait. 4 (2).
27 GC IV, Ait. 147.
28 ICCPR, Ait. 4 (1).
J. Pejic - Procedural principles for internment/administrative detention
384
1SPDFEVSBMTBGFHVBSET
Plght to lnformatlon about the reasons for lnternment/admlnlstratlve
detentlon
Anv peison inteined/administiativelv detained must be infoimed piomptlv, in
a language he oi she undeistands, of the ieasons whv that measuie has been
taken so as to enable the peison conceined to challenge the lawfulness of his oi
hei detention. The iight of a peison to know whv he oi she has been depiived
of libeitv mav be said to constitute an element of the obligation of human tieat-
ment, as a peison's unceitaintv about the ieasons foi his oi hei detention is
known in piactice to constitute a souice of acute psvchological stiess.
Neithei the Fouith Geneva Convention noi humanitaiian law appli-
cable in non-inteinational aimed conflicts contain explicit piovisions on the
dutv to piovide infoimation about the ieasons foi which a peison has been
depiived of libeitv. The foiegoing pioceduial safeguaid is, howevei, one of the
¨Fundamental Guaiantees" laid down in Aiticle 75 (3) of Additional Piotocol I.
It is moieovei piovided foi in most of the ielevant human iights tieaties and is
spelt out in soft law instiuments as well.
29

The infoimation given must also be sufficientlv detailed foi the detained
peison to take immediate steps to challenge, and iequest a decision, on the law-
fulness of the inteinment/administiative detention (see below). Infoimation
on the ieasons foi inteinment/administiative detention must be conveved
piomptlv,
30
so as to enable the peison in question to also piomptlv iequest a
decision on the lawfulness of detention, and must be conveved in a language
he oi she undeistands. Wheie an initial decision on detention is maintained on
ieview, the ieasons foi continued detention must be piovided as well.
Plght to be reglstered and held ln a recognlzed place of lnternment/
admlnlstratlve detentlon
Anv peison inteined/administiativelv detained must be iegisteied and held in an
officiallv iecognized place of inteinment/administiative detention. Infoimation
that a peison has been taken into such custodv and on anv tiansfeis between
places of detention must be available to that peison's familv within a ieasonable
time,
31
unless he oi she has expiessed a wish to the contiaiv; the familv should
also be notified of the place of custodv. The same infoimation must be supplied
to the ICRC when humanitaiian law oi specific agieements so iequiie.
Humanitaiian law applicable to inteinational aimed conflicts contains
numeious piovisions and extensive iequiiements conceining the iegistiation
29 ICCPR, Ait. 9 (2); Bodv of Piinciples foi the Piotection of All Peisons undei Anv Foim of Detention oi
Impiisonment, Piinciples 10; 11 (2); 12 (1) (a) and (2); 14; UN Geneial Assemblv iesolution 43/173 of
9 Decembei 1988 (heieinaĔei ¨Bodv of Piinciples").
30 AP I, Ait. 75 (3), Bodv of Piinciples, Piinciple 14.
31 GC IV, Aits. 106 and 138.
Volume 87 humoer 858 June 2OO5
385
of piotected peisons depiived of theii libeitv and notification of theii own
countiv's authoiities,
32
visits to places of detention
33
and the tiansmission of
infoimation about such peisons to theii next of kin, among otheis.
34
The entiie
svstem of detention laid down bv the Conventions, and in which the ICRC plavs
a supeivisoiv iole, is based on the idea that detainees must be iegisteied and
held in officiallv iecognized places of detention accessible, in paiticulai, to the
ICRC. Human iights juiispiudence and soft law instiuments contain similai
explicit piovisions on the obligation to iegistei detainees and the piohibition
of unacknowledged detention
35
which aie ielevant in non-inteinational aimed
conflicts and othei situations of violence.
36

Porelgn natlonals ln lnternment/admlnlstratlve detentlon
The national authoiities of a peison inteined/administiativelv detained must
be infoimed theieof unless a wish to the contiaiv has been expiessed bv the
peison conceined. The ielevant diplomatic oi consulai authoiities - piovided
diplomatic oi consulai ielations exist - must be allowed to communicate with
and visit theii nationals. This is a iule of public inteinational law that iemains
applicable in aimed conflicts and othei situations of violence.
37
A person subìect to lnternment/admlnlstratlve detentlon has the rlght to
challenge, wlth the least posslble delay, the lawfulness of hls or her detentlon
With iegaid to inteinational aimed conflicts the Fouith Geneva Convention, in
Aiticle 43 applicable to the inteinment of peisons in the teiiitoiv of a paitv to
the conflict, stipulates that anv piotected peison inteined oi placed in assigned
iesidence is ¨entitled to have such action ieconsideied as soon as possible bv an
appiopiiate couit oi administiative boaid designated bv the Detaining Powei
foi that puipose." Undei Aiticle 78 of the Fouith Convention, applicable to
the inteinment of peisons in occupied teiiitoiv, decisions iegaiding assigned
iesidence oi inteinment ¨shall be made accoiding to a iegulai pioceduie to be
piesciibed bv the Occupving Powei in accoidance with the piovisions of the
piesent Convention. This pioceduie shall include the iight of appeal foi the
paities conceined. Appeals shall be decided with the least possible delav."
32 Ibid., Ait. 136.
33 Ibid., Ait. 143.
34 Ibid., Aits. 106, 107, 137 and 138.
35 Bodv of Piinciples, op. cit. (note 29), Piinciples 12 and 16 (1).
36 See also UN Declaiation on the Piotection of All Peisons fiom Enfoiced Disappeaiance, Ait. 10 (1),
and Piinciples on the Ećective Pievention and Investigation of Extia-legal, Aibitiaiv and Summaiv
Executions, iecommended bv UN Economic and Social Council, Piinciple 6.
37 See Ait. 36 of the Vienna Convention on Consulai Relations. In inteinational aimed conēicts, the oĊcial
Infoimation Buieaux and the Cential Tiacing Agencv aie mechanisms thiough which the adveise paitv is
infoimed of the inteinment of its nationals (GC IV, Aits. 136-141). In non-inteinational aimed conēicts
the ICRC is also available to facilitate contact between a peison depiived of libeitv and the State of which
he oi she is a national, piovided that peison consents to such notiĐcation.
J. Pejic - Procedural principles for internment/administrative detention
386
While the Convention does not specificallv speak of these actions as
challenges to the lawfulness of detention, that is what thev essentiallv aie. The
puipose of the ¨ieconsideiation" oi ¨appeal" is to enable the competent bodv
to deteimine whethei the peison was depiived of libeitv foi valid ieasons and
to oidei his oi hei ielease if that was not the case. The authoiitv that initiallv
depiived a peison of libeitv and the bodv authoiized to conduct the ieview on
appeal must not be the same if the iight of petition is to be effective. The chai-
acteiistics of the lattei bodv and the existence of othei pioceduial safeguaids,
mentioned below, aie the ciucial factoi.
The iight of a peison to challenge the lawfulness of his oi hei detention
in non-inteinational aimed conflicts and in othei situations of violence is a kev
component of the iight to libeitv of peison undei human iights law. Even though
the iight to libeitv mav be deiogated fiom in situations of emeigencv, human
iights soft law and juiispiudence have established that the iight to challenge
the lawfulness of one's detention befoie a judicial bodv must be pieseived in all
ciicumstances.
38
It mav in paiticulai not be diminished wheie the challenge to
lawfulness of detention seives, inter alia, to piotect non-deiogable iights, such
as the iight to life oi fieedom fiom toituie and othei ciuel, inhuman oi degiad-
ing tieatment oi punishment.
39

As mav be concluded fiom the souices above, a ieview of the lawfulness
of inteinment/administiative detention within a shoit time is iequiied bv both
humanitaiian and human iights law.
Pevlew of the lawfulness of lnternment/admlnlstratlve detentlon must be
carrled out by an lndependent and lmpartlal body
Aiticle 43 of the Fouith Geneva Convention stipulates that an ¨appiopiiate
couit oi administiative boaid" shall be chaiged with ieconsideiing the initial
decision on the inteinment of a civilian in the teiiitoiv of a paitv to the con-
flict. Accoiding to Aiticle 78 applicable in occupied teiiitoiv, a decision on
inteinment must be made puisuant to a ¨iegulai pioceduie" piesciibed bv the
Occupving Powei in accoidance with the Convention. Aiticle 78 adds that the
peiiodic ieview envisaged must be undeitaken bv a ¨competent bodv set up" bv
the Occupving Powei. Despite the diffeience in language - ¨couit oi adminis-
tiative boaid" in Aiticle 43 veisus ¨iegulai pioceduie" in Aiticle 78 - the com-
mentaiv on the lattei aiticle states that the Occupving Powei ¨must obseive the
stipulations in Aiticle 43" and that it is up to the Occupving Powei ¨to entiust
the consideiation of appeals eithei to a 'couit' oi a 'boaid'."
40
A State's fieedom to choose between a ¨couit oi administiative boaid"
as piovided foi in Aiticle 43 (and Aiticle 78 bv analogv) is explained in the
38 Bodv of Piinciples, op. cit. (note 29), Piinciple 32. See also Human Rights Committee, Geneial Comment
No. 29, paia. 11.
39 Human Rights Committee, ibid., paia. 15.
40 Commentary on GC IV, op. cit. (note 19), Ait. 78, pp. 368-369.
Volume 87 humoer 858 June 2OO5
387
Commentaiv as allowing ¨sufficient flexibilitv to take into account the usage in
diffeient States." The Commentaiv adds that ¨wheie the decision is an adminis-
tiative one, it must not be made bv one official but bv an administiative boaid
offeiing the necessaiv guaiantees of independence and impaitialitv."
41
It mav
be piesumed that judicial supeivision of inteinment would moie likelv complv
with the iequiiements of independence and impaitialitv. It is theiefoie submit-
ted that judicial supeivision would be piefeiable to an administiative boaid and
should be oiganized whenevei possible. The ieviewing bodv must at the veiv
least, as stated in the Commentaiv, be constituted and function in a wav that
allows it to be independent and impaitial. An element of the iequiied inde-
pendence of such a bodv is that it must have the authoiitv to iendei final deci-
sions on inteinment oi ielease.
While the Fouith Geneva Convention allows the State to choose between
a couit and an administiative boaid in inteinational aimed conflicts, human
iights law and juiispiudence applicable to situations of non-inteinational
aimed conflict oi othei situations of violence unequivocallv iequiie that
challenges to the lawfulness of inteinment/administiative detention be heaid
bv a couit. Undei the ICCPR, anvone depiived of libeitv is entitled to ¨take
pioceedings befoie a couit, in oidei that that couit mav decide without delav
on the lawfulness of his detention and oidei his ielease if the detention is not
lawful."
42
As has alieadv been stiessed above, even though the iight to libeitv
of peison mav be deiogated fiom in situations of emeigencv, such as non-
inteinational aimed conflict, human iights soft law and juiispiudence have
established that the iight to challenge the lawfulness of one's detention befoie a
judicial bodv must be pieseived in all ciicumstances.
43
It mav in paiticulai not
be diminished wheie the challenge to lawfulness of detention seives, inter alia,
to piotect non-deiogable iights, such as the iight to life oi fieedom fiom toituie
and othei ciuel, inhuman oi degiading tieatment oi punishment.
44
It should be ieiteiated that the ieason foi challenges to the lawfulness of
inteinment/administiative detention is to put an end to the depiivation of lib-
eitv if it is not justified. This means that an inteinee must be infoimed without
delav of anv decision taken on appeal and be immediatelv ieleased if the peti-
tion is upheld. Even though the obligation of speedv infoimation and ielease
is not explicitlv mentioned in eithei humanitaiian oi human iights law, anv
depiivation of libeitv without a legal basis is consideied to be a violation of the
geneial legal piinciple piohibiting aibitiaiv detention. If a peison is kept in
inteinment/administiative detention despite a final ielease oidei, that is a cleai
case of aibitiaiv detention.
41 Ibid., Ait. 43, p. 260.
42 ICCPR, Ait. 9 (4).
43 Bodv of Piinciples, op. cit. (note 29), Piinciple 32. See also Human Rights Committee, Geneial Comment
No. 29, paia. 11.
44 Human Rights Committee, ibid., paia. 15.
J. Pejic - Procedural principles for internment/administrative detention
388
An lnternee/admlnlstratlve detalnee should be allowed to have legal
asslstance
Neithei humanitaiian noi human iights tieatv law explicitlv piovide foi the
iight to legal assistance foi peisons inteined oi administiativelv detained (that
iight is guaianteed to peisons subject to ciiminal chaiges).
It must be noted, howevei, that legal assistance to inteinees in inteina-
tional aimed conflicts is not piohibited. The Commentaiv on Aiticle 43 of the
Fouith Geneva Convention in fact states that the ¨pioceduie piovided foi in
the Convention is a minimum"
45
and that ¨it will be an advantage, theiefoie, if
States Paities to the Convention affoid bettei safeguaids."
46
It mav be said that
nowadavs the iight to effective legal assistance is not just an ¨advantage", but a
basic pioceduial safeguaid.
Human iights soft law and the juiispiudence of human iights bodies
piovide extensive standaids that fill the gaps in tieatv law applicable in non-
inteinational aimed conflicts and othei situations of violence.
47
The iight to
effective legal assistance is thus consideied to be an essential component of
the iight to libeitv of peison. The ielevant soft law standaids piovide foi the
iight of peisons in custodv to legal counsel iegaidless of the tvpe of detention
involved. Thev also contain piovisions on the modalities of communication
with a lawvei.
48

Wheie necessaiv, ieasonable secuiitv aiiangements mav be made,
such as iequiiing secuiitv cleaiance foi an inteinee's/administiative detainee's
legal counsel.
An lnternee/admlnlstratlve detalnee has the rlght to perlodlcal revlew
of the lawfulness of contlnued detentlon
Peiiodical ieview of administiative detention if the initial decision on detention
is conĐimed aĔei ¨ieconsideiation" (Aiticle 43), oi on ¨appeal" (Aiticle 78), is a
basic component of the pioceduie laid down in the Fouith Geneva Convention.
Aiticle 43 speciĐes that peiiodical ieview shall take place ¨at least twice veailv,"
while Aiticle 78 piovides that such ieview shall take place ¨if possible eveiv six
months."
The puipose of the peiiodical ieview is to asceitain whethei the detainee
continues to pose a ieal thieat to the secuiitv of the detaining powei and to
oidei ielease if that is not the case. All the safeguaids that applv to the ini-
tial ieview must applv to the peiiodical ieview(s) as well, which, among othei
things, means that the ieview has to be effective and must be conducted bv an
independent and impaitial bodv.
45 Commentary on GC IV, op. cit. (note 19), p. 261.
46 Ibid.
47 See, inter alia, Bodv of Piinciples, op. cit. (note 29), Piinciples 17 and 18.
48 Ibid., Piinciple 18.
Volume 87 humoer 858 June 2OO5
389
Theie is no specified peiiodicitv of ieview available to peisons detained
in non-inteinational aimed conflicts oi othei situations of violence, because
human iights law does not limit the fiequencv of challenges that mav be sub-
mitted bv an inteined/administiativelv detained peison to the lawfulness of
detention (habeas coipus petitions).
49
Inteinment/administiative detention will
in piactice be iegulated bv the domestic law of the State involved in a non-
inteinational aimed conflict oi othei situation of violence, meaning that a pei-
son's abilitv to challenge the lawfulness of his oi hei inteinment/administiative
detention will be iegulated bv those noims.
If the ielevant domestic law makes no such piovision, it is submitted that
at least six-monthlv ieviews of inteinment/administiative detention should be
piovided foi, similai to the iules applicable in inteinational aimed conflicts.
An lnternee/admlnlstratlve detalnee and hls or her legal representatlve
should be able to attend the proceedlngs ln person
An inteinee/administiative detainee and his oi hei legal iepiesentative should,
as a geneial iule, be able to be piesent at the initial ieview of the lawfulness
of inteinment, as well as at peiiodical ieviews, in oidei to be able to piesent
the inteinee's/administiative detainee's position and contest the claims made
against him oi hei. Wheie necessaiv, ieasonable aiiangements foi the pieseiva-
tion of classified infoimation mav be made, such as iequiiing secuiitv cleaiance
foi the inteinee's/administiative detainee's legal iepiesentative.
While neithei humanitaiian noi human iights tieatv law expiesslv
mention the iight of inteinees/administiative detainees and of theii legal iep-
iesentative to be piesent at pioceedings ielated to inteinment/administiative
detention, it has been obseived in piactice that theii absence often leads to
heaiings in which theii case is given inadequate attention. Because such pio-
ceedings iesult in decisions on the continuation of inteinment/administiative
detention, it is submitted that the inteinee/administiative detainee and his oi
hei legal iepiesentative should be allowed to be piesent at the pioceedings. If
thev do not undeistand the language of the couit, thev will need to be piovided
with an inteipietei.
An lnternee/admlnlstratlve detalnee must be allowed to have contacts wlth
÷ to correspond wlth and be vlslted by ÷ members of hls or her famlly
The pieseivation of familv life and contacts is one of the basic aims of
inteinational humanitaiian law and mav be said to constitute an element of the
bioadei obligation that peisons depiived of theii libeitv in both inteinational
and non-inteinational aimed conflicts must be tieated humanelv. This
safeguaid, as well as the two listed immediatelv below, belong to those aimed
at ensuiing piopei conditions and tieatment in detention, which is not the
49 Ibid., Piinciple 32.
J. Pejic - Procedural principles for internment/administrative detention
390
subject of this text. Thev have been included heie because of theii impoitance
foi enabling the othei pioceduial safeguaids dealt with in this text to be
implemented.
The Fouith Geneva Convention contains piovisions facilitating contact
between inteinees and theii families that aie too numeious to iepeat heie. In
biief, the geneial piesumption is that familv contacts - coiiespondence and
visits - must be allowed within a ieasonable time fiame
50
in all but veiv excep-
tional ciicumstances.
51
In no case mav a detainee's contact with his oi hei familv
be made dependent on his oi hei ¨coopeiativeness" with the detaining authoiitv
oi be used as a foim of incentive oi iewaid foi othei behavioui.
Additional Piotocol II also contains piovisions designed to maintain
familv contacts
52
and numeious non-tieatv human iights standaids have the
same aim.
53

An lnternee/admlnlstratlve detalnee has the rlght to the medlcal care and
attentlon requlred by hls or her condltlon
The iight to medical caie and attention is a component of the essential obliga-
tion that all peisons depiived of theii libeitv must be tieated humanelv. Medical
caie and attention seive among othei things to pievent ill-tieatment and also
to iefute the admissibilitv of evidence against a peison that has been obtained
bv toituie oi othei foims of ill-tieatment. Thev aie mentioned in this context
because a peison's health is obviouslv a pieiequisite foi his oi hei abilitv to
claim most of the pioceduial iights outlined in this text.
Ăe geneial iule laid down in the Fouith Geneva Convention (Aiticle 81)
stipulates that: ¨Paities to the conflict who intein piotected peisons shall be
bound to piovide fiee of chaige foi theii maintenance, and to giant them also
the medical attention iequiied bv theii state of health." Moie specific iules on
hvgiene and medical attention aie contained in Aiticles 91 and 92.
In non-inteinational aimed conflicts, Aiticle 5 (1) (b) of Additional
Piotocol II stipulates that inteinees ¨shall, to the same extent as the local civil-
ian population, be piovided with food and diinking watei and be affoided safe-
guaids as iegaids health and hvgiene and piotection against the iigouis of the
climate and the dangeis of the aimed conflict." Piovisions on access to a doctoi
and medical attention aie also contained in the ielevant human iights non-
tieatv instiuments (Bodv of Piinciples, Piinciples 24 and 26).
It must be stiessed that access to medical caie that might be iequiied
bv a peison's condition cannot in anv ciicumstances be made dependent on his
oi hei ¨coopeiativeness" with the detaining authoiitv oi be used as a foim of
incentive oi iewaid foi othei behavioui.
50 See, inter alia, GC IV, Aits. 106, 107 and 116.
51 See GC IV, Ait. 5, and Commentary on GC IV, op. cit. (note 19), p. 56.
52 AP II, Ait. 5 (2) (b).
53 Bodv of Piinciples, op. cit. (note 29), Piinciple 19.
Volume 87 humoer 858 June 2OO5
391
An lnternee/admlnlstratlve detalnee must be allowed to make submlsslons
relatlng to hls or her treatment and condltlons of detentlon
Both inteinational humanitaiian law (Aiticle 101 of the Fouith Convention)
54

and human iights soft law stipulate that inteinees/peisons subject to adminis-
tiative detention have the iight to make submissions to the detaining authoiitv
iegaiding theii tieatment and conditions of detention.
55
The puipose of this
safeguaid is to enable the detaining authoiitv to pievent and stop possible vio-
lations of the law. The authoiities aie thus obliged to put in place a pioceduie
that allows the submission and speedv as well as effective examination of peti-
tions oi complaints. The submission of such iepiesentations must not have anv
adveise consequences foi the petitionei.
Access to persons lnterned/admlnlstratlvely detalned
ICRC access to peisons inteined in inteinational aimed conflicts is piovided
foi in the Fouith Geneva Convention (Aiticle 143), which also lavs down the
conditions and pioceduie foi ICRC visits and establishes the dutv of a detaining
authoiitv to giant access and to iespect the said conditions and pioceduie.
In non-inteinational aimed conflicts
56
and in othei situations of vio-
lence
57
, the ICRC mav offei its seivices and conclude agieements with the
detaining authoiitv on visits to peisons depiived of theii libeitv foi secuiitv
ieasons, and to othei peisons. The ICRC's iight of access in these situations is
widelv iecognized.
Bv means of visits to peisons depiived of theii libeitv the ICRC, which
is an independent, impaitial and neutial humanitaiian oiganization, seeks to
ensuie that thev aie tieated humanelv in all ciicumstances and that theii fun-
damental iights aie iespected. It is thus conceined essentiallv with theii condi-
tions of detention and theii tieatment, including iespect foi fundamental pio-
ceduial guaiantees at all stages of detention.
Ceitain inteinational and iegional human iights tieaties, too, piovide
foi on-site visits to such peisons bv visiting mechanisms established undei
those tieaties.
58
Theie aie likewise a numbei of non-tieatv mechanisms cieated
undei the auspices of the UN Commission on Human Rights that mav caiiv out
visits to places of detention.
59
54 Undei Ait. 102 of the Fouith Geneva Convention, Inteinee Committees also have the iight to make
iepiesentations to, inter alia, the ICRC.
55 It should be noted that undei human iights soĔ law the legal counsel, a familv membei oi anothei
peison who has knowledge of the case mav also make submissions iegaiding the tieatment of a peison in
administiative detention. See Bodv of Piinciples, op. cit. (note 29), Piinciple 33 (1) and (2).
56 See Ait. 3 common to the foui Geneva Conventions.
57 See Ait. 5 (3) of the Statutes of the Inteinational Red Cioss and Red Ciescent Movement (1986).
58 E.g. the Euiopean Committee foi the Pievention of Toituie and Inhuman oi Degiading Tieatment oi
Punishment set up bv the Euiopean Convention foi the Pievention of Toituie and Inhuman oi Degiading
Tieatment oi Punishment.
59 E.g. the UN Commission on Human Rights Woiking Gioup on Aibitiaiv Detention.
392
4VCNJTTJPOPGNBOVTDSJQUT
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