Professional Documents
Culture Documents
DETAINEES
IN CONFLICTS
Detention rules and standards
• International Humanitarian Law (IHL)
(Geneva Conventions, Additional Protocols, CIL, …)
• International Human Rights Law
• "Soft law" e.g. International Minimum Standards
• National law
• Status of forces agreement, RoE etc
Why detention?
• IAC:
„ Occupying power
„ Party to a conflict – the “detaining power”
• NIAC:
„ Party to a conflict
„ Non-state party to conflict?
„ Government of the State in conflict
„ Militia/irregular armed forces?
How long can you detain?
• Armed conflict: ‘cessation of hostilities’
• Occupation: one year after military operations
• Criminal detention: in accordance with national
law
• Internment: as long as the security situation
exists
4 areas of protection
• Humane treatment
• Conditions of detention
• Re-establishment of family links
• Respect for judicial guarantees or procedural safeguards
Treatment of detainees
• Absolute prohibition of all forms of
torture, cruel, inhuman or degrading
treatment or punishment
•"ill-treatment"
•physical and psychological
• Special
protections
• Separated
• Education
• Physical activity
• Contact with
family members
Judicial Guarantees
1. Fair
1. Publicly
2. Without
1. Information Declared
Prohibition undue delay
of 2. Judicial Supervision of 2. Right to
3. Public
retroactive detention Appeal
application 4. Reg. Const.
3. Trial within a reasonable 3. Non bis in
of law Tribunal
time idem
1. No arbitrary detention
2. Individual criminal responsibility
3. Presumption of innocence
4. Prohibition on compelling accused to testify
against themselves or confess guilt
5. Right to legal counsel
Judicial guarantees
(Art. 105 GC III / Art.71-2 GCIV / Art. 75 AP I / Com Art. 3
/ Art. 6 AP II)
• Prisoners of war
• Civilians posing an inherent threat to security -
internees
• Criminals
• Security/ administrative detainees
Prisoners of war
International armed conflicts
(IAC)
28
ICRC registration
Internment of civilians
Aliens in the territory of the parties:
Occupied territory:
Internment/detention (NIAC)
Common Article 3:
• persons taking no active part in the hostilities, including …
those placed ' hors de combat ' by sickness, wounds,
detention, or any other cause, shall in all circumstances be
treated humanely, without any adverse distinction ...
• ordered by
4ordered by judiciary
executive branch
• threat to security 4criminal offence
• procedural 4judicial guarantees
principles and 4ordinary situation
safeguards
• exceptional situation
General Principles
Security detention-
• is an exceptional measure of control
ordered for security reasons
• is not an alternative to criminal
proceedings
• can only be ordered on the basis of a
decision taken in each individual case,
without discrimination of any kind
• must cease as soon as the reasons for it
cease to exist
• must conform to the principle of legality –
be based on reasons (substantive) and
with procedures (procedural) set out in
domestic and international law
Security detainees in conflict
• International military operations in a NIAC
„ Status of detainees
§ not POWs
§ civilians directly participating in hostilities?
§ Members of a hostile force?
§ “unlawful enemy combatants”?
„ No criminal basis to charge and prosecute?
„ Each individual must pose an imperative
threat to security
„ Legality under ROE and SOP
• Regardless of lawfulness of detention
certain standards apply
Legal issues
• Legality under which law?
• Procedural safeguards
• Separation of detainees/internees
• Family contacts
• When does internment end?
• De-classification of evidence
• Intelligence vs evidence
• Transfers to host govt
• Detention monitoring