Of course, just as patterns of conflict evolve and vary from conflict to conflict, detention practices and the related humanitarian challenges vary, too. In recent years, numerous States have invested significantly into ensuring humane treatment of all persons deprived of their liberty. Still, many detainees face serious threats to their lives and dignity—regardless of whether States or non-State parties to a conflict detain the individual. Too often, detainees suffer from torture or other forms of ill-treatment or substandard conditions of detention. These issues are extremely concerning—but also well-known. Thus, we will focus on additional, often lesser-known, realities.

1. Strategic reasons for detaining—and the significance of taking no detainees

Detaining fighters and civilians—or depriving larger populations that had previously been under the control of the enemy of their liberty—is today as strategic as it is symbolic. In contemporary non-international armed conflicts (NIACs), we see various warring parties using detention as an illustration of power. For instance, at times non-State armed groups detain in order to underline their existence and to claim legitimacy. It is almost as if they regard detaining to be as important for legitimacy as controlling territory. Certain patterns indicate that prisoners have become raw commodities that are kept to ensure that negotiations between parties to the conflict—when and if they occur—will be influenced by having the question of detainees on the table. Likewise, in some instances State and non-State parties seem to have used deprivation of liberty of fighters and civilians as a means to control—not to say pressure—large parts of the civilian population. In these cases, detention is used as a way to ensure that families keep quiet, making them understand that their own ‘wrong doing’ can have repercussions on the treatment of their relatives in detention—making these detainees quasi hostages.

At the same time, we also see indications of an alarming trend where warring parties avoid taking prisoners at all. In other words, in a number of larger recent battles, we have hardly seen any detainees. This suggests that many more people are likely to have died on the battlefield. While there may be various reasons for this decline in prisoners, one seems to be that certain parties to these conflicts show no mercy, disregarding the fundamental rule of international humanitarian law (IHL) that prohibits conducting operations in which no quarter will be given.[1] It seems like in the view of some of these parties, certain enemies do not deserve the protection that IHL explicitly provides for all persons hors de combat, including detainees.

2. Detainees going missing

During armed conflict, there is a heightened risk of disappearance through ill-designed detention operations. For many detainees, family contact is as vital as receiving food, water and medical care. Indeed, one of the core ideas of detainee protection under international humanitarian law is to ensure that families receive news from their captured relatives. The prevailing lack of independent oversight of detention operations, if coupled with practices of keeping detainees incommunicado in undisclosed places of detention, presents a high risk both of detainees going missing and of IHL violations occurring—particularly as regards family contact.

The right of families to know the fate and whereabouts of their missing relatives is a mirror of the right of detainees to be accounted for, to contact their families, and not to be arbitrarily detained or summarily executed. In times of non-international armed conflicts, customary IHL contains several rules aimed at preventing disappearance. These include the obligations to record the personal details of detainees[2] and to allow correspondence with families.[3] Disappearances of detainees also frequently involve additional violations of other fundamental humanitarian obligations, such as the prohibitions of arbitrary detention, torture or cruel, inhuman or degrading treatment, or murder.[4] Likewise, such disappearances violate various human rights.

IHL applicable in international armed conflicts establishes a sophisticated system for notifying the power to which a prisoner belongs and for informing his or her family of the deprivation of liberty.[5] In IHL applicable in NIACs, however, there is no compulsory mechanism for exchanging information on detainees between warring parties. In our view, one idea—as controversial as it may be—could be to foster agreement on and to establish some sort of information bureau that would operate in NIAC situations, making sure that all cases of detention are properly recorded and communicated. Such bureaus could be established by each party, with an impartial and independent organization facilitating information exchange between them if needed. This could be a constructive contribution to lasting peace and reconciliation, given that in several contexts today accounting for persons who went missing through detention—or otherwise—constitutes one of the main challenges once peace is achieved. After all, peace is much more complex than just the antonym of war.

 3. The blurring of responsibility in coalition warfare

The typology of contemporary NIACs, in particular in the Middle East, has evolved into a complex web of coalitions between international and local actors (for in-depth discussion on coalition warfare, see here). In practice, the idea of shared operational responsibility among coalition partners often translates into a de facto dispatching, splitting or delegating of legal responsibility between several coalition members. It seems that in the perception of some, being member of a coalition diminishes their own responsibility for acts committed as part of the joint effort.

At times, realities on the ground might give the impression that members of coalitions do not have respect for humanitarian law and principles as a shared objective. However, when different actors join force in military operations, a key question should be how parties can support each other in ensuring respect for IHL—including when States support non-State actors. In fact, international legal obligations and principles can and should serve as a lingua franca among those who fight together.

A particular area of concern is that the principle of non-refoulement is treated by certain actors as being at best optional in the protection of detainees (for further discussion, see here). Some members of coalitions seem to be unware of their legal obligations when intending to transfer effective control over detainees to another coalition member, or struggle to implement mechanisms to adequately assess and review the dangers of fundamental rights violations—such as torture or arbitrary deprivation of life—that detainees may face following transfer. It almost seems as if there is a misconception that forming a coalition creates a new entity in which responsibility of individual States or non-State actors no longer exists but is to be looked at through the prism of the responsibility of the coalition as a whole. However, even in joint operations or coalitions, individual members retain their legal obligations, and each party has to account for its conduct.

4. Screening of civilian populations, including IDPs, may amount to detention 

Control over territory and populations remains at the core of current conflicts, and such control regularly changes hands. The prerogative of States to maintain security in territories that they have regained through military means is undisputed. One measure that States and non-State actors frequently apply to ensure security is to ‘screen’ persons. ‘Screening’ means that parties to the conflict conduct operations in which entire populations—including those who are attempting to flee hostilities—are stopped and controlled at checkpoints. Such screening necessarily involves some degree of restriction of movement. In practice, due to poor planning, lack of staff and the absence of procedures, screening processes may be overly long. They may, in certain circumstances, amount to deprivation of liberty, usually without any form of legal process. During these operations, little consideration has been given to particularly vulnerable groups, such as children, women, the elderly, the sick, the disabled and unaccompanied minors.

International human rights law—which continues to apply in times of armed conflict—states that all human beings, including internally displaced persons, have the right to freedom of movement.[6] Freedom of movement is generally also guaranteed by domestic law. Under human rights law, certain elements of this right can be restricted for security reasons and the right to freedom of movement can be derogated from during periods of emergency and armed conflict. However, restrictions and derogations must be lawful, meaning based on the law, necessary, and proportionate. Direct or indirect restrictions of movement may, in certain cases, amount to a de facto deprivation of liberty, meaning that in those cases the particular protection of detainees needs to be respected. Likewise, if restriction of movement amounts to deprivation of liberty in an armed conflict, all pertinent IHL protections apply.[7]

5. Overly restrictive detention regimes

In contemporary NIACs, detention is often dealt with exclusively through the prism of penal law or anti-terrorism legislation. That is, those detaining have the intention to prosecute and punish the adversary for having participated in hostilities. In these situations, the detaining authority’s practices are often marked by a combination of retribution and punitive conditions of detention. Certainly, detention based on national criminal law is perfectly lawful in NIAC if respecting applicable rules of international law, in particular fair trial guarantees. Yet, especially in large-scale conflicts with significant numbers of detainees, it might be worth considering alignment of NIAC detention to the type of deprivation of liberty that IHL provides for prisoners of war in international armed conflict—a type of detention conceived to address the challenges and realities of conflict situations. For prisoners of war, States agreed upon an ‘amnesty-like’ approach, meaning that prisoners of war are generally interned in camps for the duration of hostilities and not individually prosecuted except for criminal offenses.[8]

Overly restrictive detention regimes have also led to situations in which organizations such as the ICRC face constant challenges in obtaining humanitarian access to persons deprived of their liberty. More generally, oversight and independent monitoring of places of detention by national or international monitoring mechanisms is regularly called into question or obstructed by some detaining authorities.

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History has shown that detention can be the dark anteroom of loss of humanity. Over the past years, there has been rhetoric that ‘dehumanizes’ and ‘demonizes’ the enemy or suggests that particular adversaries are ‘outside the bounds of humanity’ and can be treated ‘as if humanitarian law doesn’t apply’. Such rhetoric is especially prevalent in the so-called fight against terrorism. But to be clear: The fundamental rules enshrined in IHL, including those protecting detainees, have been designed for armed conflict and cannot be compromised or negotiated away in the heat of battle. These norms do not include any exceptions for ‘terrorists’.

Counter-terrorism legislation and narratives have contributed to having national security imperatives and humanitarian imperatives being pitted against each other. In our view, the latter should frame the former, never the other way around.

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This post is based on a presentation held during the 2018 Sanremo Roundtable on ‘Deprivation of Liberty and Armed Conflict: Realities and Remedies’. Conference Proceedings are available here.

For further reading

On detention, the law and the ICRC

• Strengthening IHL protecting persons deprived of their liberty: Main aspects of the consultations and discussions since 2011, Tilman Rodenhäuser, International Review of the Red Cross, February 2018
• ICRC Opinion Paper: Internment in armed conflict: Basic rules and challenges, November 2015
• The protective scope of Common Article 3: more than meets the eye, Jelena Pejic, International Review of the Red Cross, 2011
• Procedural principles and safeguards for internment/ administrative detention in armed conflict and other situations of violence, Jelena Pejic, International Review of the Red Cross, 2005
• Blog post: IHL & the protection of migrants caught in armed conflict, Helen Obregón Gieseken & Éloïse Ouellet-Décoste, June 4, 2018
• Blog post: The principle of non-refoulement in the migration context: 5 key points, Tilman Rodenhäuser, March 30, 2018

On detention realities

• International Review of the Red Cross issue on detention: Detention: addressing the human cost

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Footnotes

[1] See Article 4(1) Protocol Additional to the Geneva Convention of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), of 8 June 1977. See also Rule 46 of the ICRC’s Study on Customary International Humanitarian Law.

[2] Rule 123 of the ICRC’s Study on Customary International Humanitarian Law.

[3] Rule 125 of the ICRC’s Study on Customary International Humanitarian Law.

[4] See Rules 87, 89, 90, 98, 99 of the ICRC’s Study on Customary International Humanitarian Law.

[5] See, as an example, the ‘National Bureaux’ established during international armed conflict under Article 122 Convention (III) relative to the Treatment of Prisoners of War.

[6] See Article 12 of the International Covenant on Civil and Political Rights. See also Principle 14 of the UN Guiding Principles on Internal Displacement.

[7] In addition, Article 5(3) of Additional Protocol II foresees specific protections for persons whose liberty is restricted but who are not detained.

[8] See Article 21 Convention (III) relative to the Treatment of Prisoners of War. See also Article 43(2) of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts. Given that in NIAC fighters and other persons who might be deprived of liberty may not be as easily identifiable as combatants in IAC, clarification on the grounds and procedures for internment would be needed.