People held in detention are by definition in an incredibly vulnerable position. Regrettably, history has shown that those held in detention are often subject to cruel treatment and physical and mental abuse, including torture and rape. While not every deprivation of liberty is unlawful, both international humanitarian law (IHL) and international human rights law (IHRL) set out the specific circumstances when it may be justified and the numerous protections afforded to those in detention.
Overview of IHL and detention
International Humanitarian Law provides warring parties with the right to detain individuals for various reasons during an armed conflict. It is important to note that the rules relating to detention must always be read in conjunction with the application of international human rights law.
Both the Third and Fourth Geneva Conventions set out detailed protections for those held in detention in situations of international armed conflict. The Third Geneva Convention outlines protections for Prisoner of War while the Fourth Geneva Convention sets out the protections afforded and circumstances when civilians may be detained.
In non-international armed conflict IHL tends to regulate detention in a less detailed manner, due to the fact that states will perceive armed actions by organised armed groups fighting against them to be inherently contrary to their own domestic law. However, there are clear and significant fundamental guarantees that protect those held in detention.
It is important to remember that any person detained, for whatever reason, and at whatever time is protected by fundamental guarantees, namely:
Prohibition against the arbitrary deprivation of liberty;
Protected against violence to life and person: in particular, murder, rape, mutilation, cruel treatment and torture;
Outrages upon personal dignity; in particular humiliating and degrading treatment.
Please click here for more information on the deprivation of liberty.
Detention in international armed conflict
The four Geneva Conventions set out the circumstances in which individuals can be detained during an international armed conflict.
Prisoners of War
Prisoners of War may be detained until the end of the conflict, regardless of their conduct. They may not, however, be prosecuted or punished for mere participation in the hostilities, except in the case of prosecution for war crimes.
Read more about who qualifies for POW status.
Civilians may be prosecuted for participating in hostilities and for war crimes.
Additionally, under the Fourth Geneva Convention protected civilians may, for imperative reasons of security or absolute necessity, be subjected to assigned residence or internment. Any such internment must be subject to periodical review. Articles 79-135 set out the detailed treatment that any internee must be afforded.
An Occupying Power may also need to detain those who have committed offences which violate local penal law.
Detention in non-international armed conflict
As is the case in any state, those committing penal offenses will be subject to prosecution and possible imprisonment, subject to international human rights law protections. Hence in situation of non-international armed conflict, when an armed group is fighting against a state, if arrested they will likely be subject to prosecution. IHL must accept this reality and does not provide a legal basis as such for detaining armed groups; however it does strongly recommend that at the end of armed conflict, an amnesty should be given to those who merely participated in hostilities.
Rebel groups and detention?
One challenging question for modern IHL is the rights of armed non-state actors to prosecute and detain those they are fighting against. While IHL is based on the premise that belligerents are equal, the rules of NIAC do not always meet this ideal as they are drafted by states and hence IHL does not provide a clear basis or easy answer to this question.
One of the most troubling and challenging detention practices is that of administrative detention, what is sometimes known as internment. Administrative detention allows for the detention of an individual on the basis that they represent a security threat of some kind, rather than in response to a specific offence. This notion can be found under IHL when talking about ‘civilian internees’.
However since the development of the Geneva Conventions there has been significant development, mainly under international human rights law, which looks to restrict any blanket right to detain individuals indefinitely without charging them with a specific offence, by providing overarching procedural rights and safeguards. Human rights law establishes:
(i) An obligation to inform the individual of the reasons for their detention;
(ii) An obligation to bring a person arrested on a criminal charge promptly before a judge; and
(iii) An obligation to provide a person deprived of liberty with an opportunity to challenge the lawfulness of detention (habeas corpus).
With regard to the first two obligations, while not listed as non-derogable in human rights treaties, human rights case-law has established that they may never be dispensed with altogether.