- Slides: 18
The Normative Framework of International Humanitarian Law Relating to Administrative Detention in Occupation
Definition of Detention • Confinement of individual to a limited area – regardless of reasons – regardless of length from which he/she is unable to leave at will
Concept of ‘Administrative Detention’ • Detention without a trial, based on an administrative decision • Used in various situations such as: – Migration, eg asylum-seekers from safe countries or safe third-countries – Terrorism, eg control orders and TPIMs in the UK
Why Detain? • In armed conflict aim is ‘to weaken the military forces of the enemy’ (1868 St Petersburg Declaration) • Detention is a way to ensure that fewer individuals take part in the hostilities – Eg detention prisoners of war is a way to remove combatants from the battlefield – Detain rather than kill? Goodman v Schmitt debate • ‘[D]etention is a necessary, lawful and legitimate means of achieving the objectives of international military operations’ (2012 Copenhagen Process: Principles and Guidelines, Preamble III) • But why detain civilians?
Who Can Be Lawfully Detained in an International Armed Conflict? Prisoners of War under Geneva Convention III Persons in occupied territory protected by GC IV can be interned when it is necessary for ‘imperative reasons of security’ (Article 78 GC IV) Persons in a belligerent’s territory protected by GC IV can be interned ‘only if the security of the Detaining Power makes it absolutely necessary’ (Article 42 GC IV) Administrative detention as the most severe measure of control that may be taken against such persons
Administrative Detention Administrative detention as the most severe measure of control that may be taken against such persons Exceptional Detention of individuals considered a threat to the security of the State (Article 78 GC IV) Assigned residence Internment
Procedure Grounds for Detention • Challenge to Detention • Review of Detention Treatment and Conditions of Detention Enforcement Release
Grounds for Detention • Persons in occupied territory protected by GC IV can be interned when it is necessary for ‘imperative reasons of security’ • Pictet Commentary refers to: – Subversive activity carried out inside the territory of a Party to the conflict or actions which are of direct assistance to an enemy Power, membership in ‘organisations whose object is to cause disturbances’ and ‘sabotage’ or ‘espionage’ • Agreement that civilians taking a direct part in the hostilities fall within that category • What about others?
Grounds for Detention • Crux is that detention cannot be arbitrary, ie it must be legally justified: – Lawful (principle of legality): • National law (relating to armed conflict or general, eg protection of property) • Authorisation by the UN or another international organisation such as NATO, the African Union or the European Union • Arrangements between a host State and a State contributing military forces – Reasonable and necessary in light of all the circumstances in the sense that detention must fulfil a continuingly legitimate objective (eg security objective or criminal justice)
Some Thoughts on …. Grounds for Detention • In reality, administrative detention often used to gather information, punish a person for past activity or deter the individual or others from future activities • Principle of legality: national law not compliant with international law • Targeting standards used for protection purposes • Decision should be based on: – Sufficient information – Reliable information
Procedural Elements • Upon detention need to register the individual and notify & inform him/her on the reasons for detention (Articles 106 and 138 GC IV, Copenhagen Principles 7 and 8) • Individual held in a recognised place of internment/administrative detention • Individual must be ‘informed promptly, in a language he understands, of the reasons why these measures have been taken’ (Article 75(3) AP I)
Procedure to Challenge and Review Detention • Aim of procedure is to give detainee a meaningful way to challenge his/her detention • Procedure must be in existence when individual is detained • Proceedings as such are regulated by national law and must comply with right to fair trial (see also 2005 ICRC Procedural Principles and Safeguards for Internment/Administrative Detention in Armed Conflict and Other Situations of Violence)
Procedure to Challenge and Review Detention • Individual entitled to have detention reconsidered by using a regular procedure administered by a competent body (Article 78(2) GC IV) and promptly • Review periodically (every six months according to GC IV) by impartial and objective authority authorised to determine lawfulness and appropriateness of continued detention (Article 78 GC IV, Copenhagen Principle 12)
Some Thoughts on…. Procedure • Reviewing Body • Access of information to detainees • Procedure fails to determine – whether the information upon which the detention is based is reliable and – whether the individual’s activities indeed justify the detention (and its duration).
Treatment in and Conditions of Detention • Detainee to be treated humanely (GC IV, Copenhagen Principle 2) • Detaining power must provide adequate conditions of detention (GC IV, Copenhagen Principle 9) and must be permitted to have appropriate contacts with the outside world (GC IV, Copenhagen Principle 10) except in exceptional circumstances • Possibility to make submissions relating to treatment and conditions of detention(Article 101 GC IV)
Release Obligation to release individual as soon as reasons which necessitated his/her detention are no longer present (Article 132 GC IV, Copenhagen Principle 4) OR at least ‘as soon as possible after the close of the hostilities’. (Article 133 GC IV) Rule 128(B) ICRC Study on CIHL: ‘Civilian internees must be released as soon as the reasons which necessitated internment no longer exist, but at the latest as soon as possible after the close of active hostilities. ’
Some Thoughts on…. Release • Numerous bodies (eg UNSC, UNGA, Council of League of Arab States) have condemned delayed release • But detention sometimes prolong for bargaining purposes although prohibited by GC IV • Problem with length of the hostilities, eg ‘war on terror’
Lack of Enforcement and Oversight Mechanism Under international humanitarian law • ICRC visits • ‘unlawful confinement of a protected person’ is a grave breach under Article 147 GC IV • ‘unjustifiable delay in the repatriation of […] civilians’ is a grave breach under Article 85 AP I Under international human rights law • Universal Periodic Review • Human Rights Committee (ICCPR) Under international criminal law • ‘Unlawful confinement’ as a crime under Article 8(a)(vii) of the Statute of the International Criminal Court