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Some controversies of detention in multinational operations and the contributions of the Copenhagen Principles

Published online by Cambridge University Press:  14 January 2014


This paper discusses three main areas of controversy relating to detention in the context of multinational operations: the relationship between international humanitarian law and human rights law; the principle of legality in the context of relying on United Nations Security Council resolutions as a justification for taking detainees; and the transfer of detainees where there is, for example, a substantial risk of torture or cruel, inhuman or degrading treatment or punishment. The paper then considers how the Copenhagen Principles address these issues.

Research Article
Copyright © icrc 2014 

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1 The Copenhagen Process on the Handling of Detainees in International Military Operations: The Copenhagen Process: Principles and Guidelines (hereafter Copenhagen Principles), October 2012, available at: All internet references were last visited in May 2013.

2 The term ‘detainee’, as used in this article, refers to a person who has been deprived of liberty for reasons related to a multinational military operation. For example, a detainee might be a person who is a security threat or a person suspected of committing a criminal offence.

3 The term ‘multinational operations’, as used in this article, refers to those operations that are conducted by two or more military forces outside their own territories. Such operations include those conducted by the North Atlantic Treaty Organisation (NATO) in Afghanistan and coalition forces in Iraq. They also include peace operations conducted by international organisations such as the United Nations (UN) in the Democratic Republic of the Congo or a coalition of states such as the International Force for East Timor (INTERFET). Such operations may be conducted by land, sea, or air. This paper focuses only on multinational operations conducted on land.

4 For a more detailed discussion regarding the accountability of multinational forces such as those commanded by NATO or the UN, see Zwanenburg, Marten, Accountability of Peace Support Operations, Martinus Nijhoff Publishers, Leiden and Boston, 2005Google Scholar.

5 Pearlstein, Deborah N., ‘Detention debates’, in Michigan Law Review, Vol. 110, No. 6, April 2012, p. 1045Google Scholar.

6 See, for example, Canadian Department of Defence, Report of the Somalia Commission of Inquiry, 1997, available at:; Amnesty International Canada v. Canada (Minister of National Defence) (2007), 287 DLR (4th) 35 (Can); a public interest investigation launched on 9 February 2007 by the Canadian Military Police Complaints Commission regarding the transfer of detainees to Afghan authorities by Canadian Military Police (see Military Police Complaints Commission, Afghanistan Public Interest Investigation (APII), 3 November 2009); and an inquiry by the Canadian Military Police Complaints Commission concerning a complaint made by Amnesty International Canada and British Columbia Civil Liberties Association in June 2008 (see Military Police Complaints Commission, Afghanistan Public Interest Hearing (APIH), 27 June 2012).

7 On Afghanistan, see Case No. 180/2011, Ghousouallah Tarin v. Ministry of Defense. On Iraq, see Case No. B3421-11, Brak and others v. Ministry of Defense; Case No. B-397-12, Shahel and others v. Ministry of Defense; Case No. B-1162-12, Al Saadoun and others v. Ministry of Defense; and as yet unnumbered case Albarrak and others v. Ministry of Defense. In April 2012, the Danish Justice Ministry announced the establishment of a ‘Commission of Inquiry into the Danish decision to participate in the war in Iraq [2003] and the actions by Danish authorities in regard to the detention of individuals during the wars in Iraq and Afghanistan’ (unofficial translation from the Danish Justice Ministry from a press release of April 2012). See also Peter Stanners, ‘Iraq Commission to Investigate Danish Involvement in War’, in The Copenhagen Post, 12 April 2012, available at:

8 See, for example, Secretary of State for Foreign and Commonwealth Affairs and another (Appellants) v. Yunus Rahmatullah (Respondent); Secretary of State for Foreign and Commonwealth Affairs and another (Respondents) v. Yunus Rahmatullah (Appellant) [2012], UKSC 48; R (on the Application of Maya Evans) v. Secretary of State for Defence [2010], EWCH 1445; and R (on the Application of Al Jedda) (FC) v. Secretary of State for Defence [2007], UKHL 58. See also inquiries into deaths in custody, such as The Report of the Baha Mousa Inquiry (Vols. I–III), The Right Honourable Sir William Gage (Chairman), 2011. The UK Ministry for Defence has allegedly paid out 14 million pounds ‘in compensation and costs to Iraqis who complained that they were illegally detained and tortured by British forces during the five-year occupation of the south-east of the country’. See Ian Cobain, ‘MoD pays out millions to Iraqi torture victims’, in The Guardian, 20 December 2012, available at:

9 Pejic, Jelena, ‘Procedural principles and safeguards for internment/administrative detention in armed conflict and other situations of violence’, in International Review of the Red Cross, Vol. 87, No. 858, June 2005, p. 375CrossRefGoogle Scholar.

10 Bellinger, John B. III and Padmanabhan, Vijay M., ‘Detention Operations in Contemporary Conflicts: Four Challenges for the Geneva Conventions and Existing Law’, in American Journal of International Law, Vol. 105, No. 2, April 2011, p. 202Google Scholar.

11 Ibid., pp. 202–203.

12 Deeks, Ashley S., ‘Administrative detention in armed conflict’, in Case Western Reserve Journal of International Law, Vol. 40, No. 3, 2009, p. 431Google Scholar.

13 See, for example, International Court of Justice (ICJ), Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, p. 226; ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, p. 136, para. 106.

14 See, for example, Ben-Naftali, Orna (ed.), International Humanitarian Law and International Human Rights Law, Oxford University Press, New York, 2011CrossRefGoogle Scholar; Arnold, Roberta and Quénivet, Noëlle (eds), International Humanitarian Law and Human Rights Law, Martinus Nijhoff Publishers, Leiden, 2008Google Scholar; Provost, René, International Human Rights and Humanitarian Law, Cambridge University Press, New York, 2002CrossRefGoogle Scholar.

15 See, for example, Greenwood, Christopher, ‘Human rights and humanitarian law – conflict or convergence’, in Case Western Reserve Journal of International Law, Vol. 43, No. 1/2, 2011, pp. 491512Google Scholar; McLaughlin, Rob, ‘The law of armed conflict and international human rights law: some paradigmatic differences and operational implications’, in Schmitt, Michael et al. (eds), Yearbook of International Humanitarian Law, Vol. 13, 2010, pp. 213243Google Scholar; Hampson, Françoise, ‘The relationship between international humanitarian law and human rights law from the perspective of a treaty body’, in International Review of the Red Cross, Vol. 90, No. 549, 2008, p. 559CrossRefGoogle Scholar; Droege, Cordula, ‘The interplay between international humanitarian law and international human rights law in situations of armed conflict’, Research Paper No. 14-07, reprinted in Israel Law Review, Vol. 40, No. 2, 2007, pp. 310355CrossRefGoogle Scholar; Roberts, Adam, ‘Human rights obligations of external military forces’, in International Society for Military Law and the Law of War (ed.), The Rule of Law on Peace Operations, 2006, p. 429Google Scholar; Roberts, Adam, ‘Counter-terrorism, armed forces and the laws of war’, in Survival, Vol. 44, No. 1, 2002CrossRefGoogle Scholar.

16 See, for example, ‘Expert meeting on security detention’, prepared by Davidson, Tyler and Gibson, Kathleen in Case Western Reserve Journal of International Law, Vol. 40, No. 3, 2009, pp. 323381Google Scholar; ‘Expert meeting on procedural safeguards for security detention in non-international armed conflict’, Chatham House and International Committee of the Red Cross, London, 22–23 September 2008, (hereinafter ICRC expert meeting), in International Review of the Red Cross, Vol. 91, No. 876, December 2009, pp. 859–881.

17 C. Greenwood, above note 15, pp. 503–504.

18 Current Deputy U.S. Assistant Secretary of Defense (Rule of Law and Detainee Policy).

19 Lietzau, William, ‘Detention of terrorists in the twenty-first century’, in Watkin, Kenneth and Norris, Andrew (eds), Non-International Armed Conflict in the Twenty-First Century, U.S. Naval War College, International Law Studies, Vol. 88, 2012, p. 332Google Scholar, available at:

20 For a more detailed account of this debate, see for example, Jens Olin, ‘IHL and IHRL’, in Lieber Code, 14 January 2012, available at:; the subsequent discussions in Rona, Gabor, ‘A response to Ohlin about IHL and IHRL’, in Opinio Juris, 17 January 2012Google Scholar, available at:; Heller, Kevin, ‘Ohlin Response to Rona’, in Opinio Juris, 17 January 2012Google Scholar, available at:

21 ICRC expert meeting, above note 16, p. 861.

22 UN Office of the High Commissioner for Human Rights (OHCHR), International Legal Protection of Human Rights in Armed Conflict, United Nations Publications, New York and Geneva, 2011, p. 1Google Scholar.

23 Ibid., p. 55.

24 In this paper, the term ‘security detainee’ refers to those individuals detained for imperative reasons of security, such as acting suspiciously, breaching curfew, failing to provide identification when required to do so, or being seen photographing a militarily sensitive site. The term ‘criminal detainee’ refers to those who are detained because they have, or are suspected of having, committed a criminal act. Of course, a person may be both a security and criminal detainee.

25 There are of course other grounds on which detention may be justified. For a more detailed discussion of those grounds, see for example, Oswald, Bruce, ‘Detention by United States peacekeepers: searching for definition and categorization’, in Journal of International Peacekeeping, Vol. 15, 2011, pp. 119151Google Scholar; Kleffner, Jan, ‘Operational detention and the treatment of detainees’, in Gill, Terry and Fleck, Dieter (eds), The Handbook of the International Military Law of Operations, Oxford University Press, New York, 2010, pp. 465480Google Scholar; Frederick Naert, ‘Detention in peace operations: the legal framework and the main categories of detainees’, Institute for International Law, Working Paper No. 94, May 2006.

26 For a more detailed discussion about the legal effects of Security Council resolutions, see for example, Oberg, Marko, ‘The general legal effects of resolutions of the UN Security Council and General Assembly in the jurisprudence of the ICJ’, in European Journal of International Law, Vol. 16, 2006, pp. 879906CrossRefGoogle Scholar; Wood, Michael C., ‘The interpretation of Security Council resolutions’, in Max Planck Yearbook of United Nations Law, Vol. 2, Max Planck Institute for Comparative Public Law and International Law, Heidelberg, Germany, 1998, pp. 7395Google Scholar.

27 The Security Council authorised the UN Operation in the Congo (ONUC) to detain ‘pending legal action … all foreign military and para-military personnel and political advisers not under United Nations command, and mercenaries’. See SC Res. 169, 24 November 1961, para. 4.

28 In relation to the UN Operations in Somalia II (UNOSOM II), the Security Council authorised the Secretary-General to take all measures necessary to arrest and detain those responsible for carrying out the armed attacks against the UN military personnel serving with UNOSOM II. See SC Res. 837, 6 June 1993, para. 5.

29 The Security Council authorised the UN Mission in Liberia (UNMIL) to ‘apprehend and detain former President Charles Taylor in the event of a return to Liberia’. See SC Res. 1638, 11 November 2005, para. 1.

30 Report of the Secretary-General, United Nations Emergency Force: Summary Study of the Experience Derived from the Establishment and Operations of the Force, UN Doc. A/3943, 9 October 1958, paras. 54 and 70.

31 In February 1993, the UN Secretary-General reported that UNTAC was holding two suspects in custody for committing murder. Those detentions were justified by the Secretary-General on the basis that they were undertaken pursuant to ‘a special UNTAC office with powers to arrest, detain and prosecute persons accused of politically motivated criminal acts and human rights violations’. Report of the Secretary-General on the Implementation of Security Council Resolution 792 (1992), UN Doc. S/25289, 13 February 1993 (hereinafter 792 Report), para. 15.

32 One UN Secretary-General report concerning detentions in Rwanda noted that UNAMIR peacekeepers detained a ‘total of 44 people … and handed them over to local authorities’. Progress Report of the Secretary-General on the United Nations Mission for Rwanda, UN Doc. S/1995/107, 6 February 1995, and Addendum, UN Doc. S/1995/107/Add.1, 16 February 1995, p. 26.

33 See, for example, ‘SFOR peacekeepers detaining Algerians suspected of threatening Bosnia's security’, in Associated Press, 22 December 2003; ‘NATO peacekeepers detain former Karadzic bodyguard’, in USA Today, 31 July 2004, available at:

34 For example, in September 2007, the MONUC military commander, Major-General Gaye, acknowledged that ‘the [MONUC] force was, therefore, also in charge of holding detainees'. UN Department of Public Information, ‘Press conference by Force Commander of Democratic Republic of Congo Mission’, 6 September 2007, available at:

35 For example, MINUSTAH troops ‘detained some 50 suspects, 40 of whom were later released’. See ‘Haiti: UN peacekeepers mount new anti-gang operation in capital’, in UN Daily News, 18 November 2006, available at:

36 See, for example, Abrashi, Fisnik, ‘NATO peacekeepers apprehend suspected ethnic Albanian radicals’, in Associated Press News, 8 January 2001Google Scholar; Gall, Carlotta, ‘Peacekeepers in Kosovo seize 19 Macedonian rebel suspects’, in New York Times, 12 June 2011Google Scholar, available at:

37 See, for example, Oswald, Bruce, ‘The INTERFET Detainee Management Unit in East Timor’, in Yearbook of International Humanitarian Law, Vol. 3, 2000, p. 347CrossRefGoogle Scholar.

38 See, for example, ‘Indonesia: UN peacekeepers detain two former East Timorese militiamen’, in BBC Summary of World Broadcasts, 6 April 2003; UNMIT Situational Report, 19 January–25 January 2007.

39 See, for example, ‘Allied forces arrest about 40 Al-Shabab suspects in central Somali town’, reported by Radio Gaalkacyo, Somalia, 1 December 2012, and transcribed by BBC Monitoring Africa – Political.

40 SC Res. 2098, 28 March 2013. For a brief discussion concerning some of the legal issues surrounding the establishment of the Brigade, see Oswald, Bruce ‘Ossie’, ‘The Security Council and the Intervention Brigade: some legal issues’, in American Society of International Law Insights, Vol .17, No. 15, 6 June 2013Google Scholar.

41 UN Security Council, ‘“Intervention Brigade” authorised as Security Council grants mandate renewal for United Nations mission in the Democratic Republic of Congo’, UN Press Release SC/10964, 28 March 2013, available at:

42 SC Res. 2098, above note 40, para. 2.

43 Ibid., para. 12(b).

44 UNEF I was mandated in 1956 to secure and supervise the cessation of hostilities in Egypt, to serve as a buffer between Egyptian and Israeli forces, and to supervise the ceasefire.

45 Report of the UN Secretary-General, above note 30, paras. 54 and 70.

46 International Criminal Tribunal for Yugoslavia (ICTY), The Prosecutor v. Dragan Nikolic, Case No. IT-94-2-PT, Decision of Defence Motion Challenging the Exercise of Jurisdiction by the Tribunal, 9 October 2002, para. 53. The ICTY decided in the Nikolic case, following the precedent it had set in the Todorovic decision (Case No. IT-95-9, 18 October 2000), that the authority of the Stabilisation Force (SFOR) to take detainees stemmed from a variety of sources including the Statute of the Court, the Dayton Peace Agreement, the Security Council resolution establishing the SFOR, an agreement between the ICTY and the Supreme Headquarters Allied Powers Europe (SHAPE), and the force's rules of engagement (ROE) (see paras. 31–55).

47 European Court of Human Rights (ECtHR), Agim Behrami and Bekir Behrami v. France (Application No. 71412/01) and Ruzhdi Saramati v. France, Germany and Norway (Application No. 78166/01), ECtHR Grand Chamber Admissibility Decision, 2 May 2007, para. 124.

48 ECtHR, Al-Jedda v. The United Kingdom (Application No. 27021/08), ECtHR Grand Chamber Judgement, 7 July 2011.

49 Ibid., paras. 100, 107 and 109. See also Pejic, Jelena, ‘The European Court of Human Rights’ Al-Jedda judgement: the oversight of international humanitarian law’, in International Review of the Red Cross, Vol. 93, No. 883, 2011, pp. 837851CrossRefGoogle Scholar, for a more detailed discussion concerning this judgement.

50 Article 103 of the UN Charter states: ‘In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail’. For a more detailed discussion of the importance of this provision in establishing obligations, see for example, Liivoja, Rain, ‘The scope and supremacy clause of the United Nations Charter’, in International and Comparative Law Quarterly, Vol. 57, No. 3, 2008, pp. 583612CrossRefGoogle Scholar.

51 J. Pejic, above note 49, p. 851.

52 J. Kleffner, above note 25, p. 470.

53 ICRC expert meeting, above note 16, p. 869.

54 Amnesty International, Broken Bodies, Tortures Minds: Abuse and Neglect of Detainees in Iraq, January 2011, pp. 44–45, available at:

55 United Assistance Mission in Afghanistan (UNAMA) and OHCHR, Treatment of Conflict-Related Detainees in Afghan Custody: One Year On, Kabul, Afghanistan, January 2013, p. 7.

56 Ibid., p. 3. UNAMA found that 31 per cent of detainees interviewed who had been transferred to Afghan custody experienced torture in Afghan National Police, Afghan National Directorate of Security, or Afghan National Army facilities.

57 See, for example, Sir Jennings, Robert and Sir Watts, Arthur (eds), Oppenheim's International Law, Pearson Education, London, 1992, p. 458Google Scholar; ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, ICJ Reports 1986, para. 106. That approach confirms Art. 2(7) of the UN Charter, which provides: ‘Nothing contained in the present Charter shall authorise the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.’

58 See, for example, the preambular paragraphs in the following Security Council resolutions: SC Res. 2012, 25 April 2013; SC Res. 2010, 25 April 2013; and SC Res. 2096, 19 March 2013.

59 Munaf et al. v. Geren, Secretary of the Army et al. (2008), 533 US 23 (US).

60 This belief is based primarily on the principle of non-refoulement, which, it has been argued, prohibits the transfer of detainees if there are substantial reasons for believing that the detainee would be subject to serious ill-treatment, such as torture or arbitrary deprivation of life. See C. Droege, above note 15. See also Gillard, Emanuela-Chiara, ‘There is no place like home: states’ obligations in relation to transfers of persons’, in International Review of the Red Cross, Vol. 90, No. 871, 2008, pp. 703750CrossRefGoogle Scholar; R (Maya Evans) v. Secretary of State for Defence [2010], EWHC 1445 (Admin) (UK); Human Rights Institute (Columbia Law School), U.S. Monitoring of Detainee Transfers in Afghanistan: International Standards and Lessons from the UK and Canada, December 2010, available at:

61 R (Maya Evans) v. Secretary of State for Defence, above note 60, paras. 268–286; Amnesty International Canada and BCCLA v. Chief of the Defence Staff for the Canadian Forces and Attorney General of Canada (2008 FCA 401), A-149-08 (Can), available at:

62 While there is no record in the public domain of a case where a host state has refused to return a detainee to the detaining force, there have been situations where such a result would have occurred. From my own experience in serving on peace operations and multinational operations, that concern has given rise to ‘war game’ exercises aimed at determining what the multinational force would do if such an event were to occur.

63 Report of the 30th International Conference of the Red Cross and Red Crescent, Geneva, Switzerland, 26–30 November 2007 (hereinafter 30th ICRC Report), p. 11. See also International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, document prepared by the ICRC, Geneva, October 2007, 30IC/07/8.4, p. 11, available at:

64 Ibid., Annex 1.

65 Ibid., p. 11.

66 31st International Conference of the Red Cross and Red Crescent, Geneva, Switzerland, 28 November–1 December 2011, Resolution 1, para. 6, available at:

67 For more details on how the Process developed prior to 2009 see, for example, Winkler, Thomas, ‘The Copenhagen Process on Detainees: a necessity’, in Nordic Journal of International Law, Vol. 78, No. 4, 2009, pp. 489498CrossRefGoogle Scholar; Oswald, Bruce ‘Ossie’ and Winkler, Thomas, ‘Copenhagen Process Principles and Guidelines on the Handling of Detainees in International Military Operations’, in American Society of International Law Insights, Vol. 16, No. 39, 26 December 2012Google Scholar, available at:; Hartmann, Jacques, ‘The Copenhagen Process: Principles and Guidelines’, in EJIL Talk!, 3 November 2012Google Scholar, available at:; Horowitz, Jonathan T., ‘Introductory Note to the Copenhagen Principles and Guidelines on the Handling of Detainees in International Military Operations’, in American Society of International Law International Legal Materials, Vol. 51, No. 6, 2012, p. 1364Google Scholar.

68 The author of this article was an external consultant to the Danish Ministry of Foreign Affairs on the Copenhagen Process since the inception of that Process.

69 States that participated during the Copenhagen Process included: Argentina, Australia, Belgium, Canada, China, Denmark, Ethiopia, Finland, France, Germany, India, Jordan, Malaysia, New Zealand, Nigeria, Norway, Pakistan, Russia, South Africa, Sweden, Tanzania, the Netherlands, Turkey, Uganda, the United Kingdom and the United States.

70 Representatives of the following international organisations attended the various Process conferences and seminars as observers: the African Union (AU), the European Union (EU), NATO, the UN and the ICRC.

71 Examples of the Danish Ministry of Foreign Affairs engaging with civil society on the Process include Thomas Winkler, ‘Transfer of Detainees’, address at the International Institute of Humanitarian Law 33rd Round Table on Current Issues of International Humanitarian Law, ‘Global Violence: Consequences and Responses’, San Remo, 9–11 September 2010. Denmark conducted public briefings on the Process at the San Remo Round Tables in 2008 and 2010, at the Bruges Colloquium in 2008, at a side event during the UN General Assembly in 2008, and at the 31st International Conference of the Red Cross and Red Crescent. Furthermore, the Process has been discussed at a number of academic conferences, including at the London School of Economics in 2009 and at the University of Wollongong in 2011. See Thomas Winkler, ‘The Copenhagen Process on the Handling of Detainees in International Military Operations’, address at the International Institute of Humanitarian Law 31st Round Table on Current Issues of International Humanitarian Law, ‘Human Rights and Peace Operations’, San Remo, 4–6 September 2008; Thomas Winkler, ‘The Copenhagen Process on the Handling of Detainees in International Military Operations’, address at the 9th Bruges Colloquium, ‘Transfers of Persons in Situations of Armed Conflict’, Brussels, 16–17 October 2009; Droege, Cordula and Arimatsu, Louise, ‘Conference on the European Convention on Human Rights and International Humanitarian Law: conference report’, in Yearbook of International Humanitarian Law, Vol. 12, 2009, pp. 435449CrossRefGoogle Scholar.

72 Preamble to the Copenhagen Principles (hereinafter Preamble), para. IX.

73 In early January 2013, the French military commenced military operations against armed groups in Mali. See, for example, Pezard, Stephanie and Shurkin, Michael, ‘The French intervention in Mali is necessary, but risky’, in U.S. News, 17 January 2013Google Scholar, available at:

74 Delegates from Argentina, Australia, Canada, China, Denmark, France, Finland, Germany, Malaysia, the Netherlands, Norway, South Africa, Sweden, Uganda, the United Kingdom and the United States of America ‘welcomed’ the Copenhagen Principles. As discussed below, the Swedish and Russian delegations had concerns about the Principles reflecting IHRL appropriately, and made statements to that effect. See 3rd Copenhagen Conference on the Handling of Detainees in International Military Operations, Copenhagen, 18–19 October 2012, Minutes of the Meeting as recorded by the Chair (hereinafter Chairman's minutes), p. 4, available at:

76 Preamble, para. XIII.

77 Commentary to the Copenhagen Principles (hereinafter Commentary), para. 16.1.

78 Preamble, para. IV.

79 Ibid., para. V.

80 Chairman's minutes, p. 4.

82 Principle 4.

83 Commentary, para. 4.3.

84 ICJ, Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949, p. 182. The doctrine of implied powers of the UN was articulated by the ICJ and has since then been used to justify Security Council mandates in the pursuit of maintaining international peace and security.

85 Commentary, paras. 4.2 and 4.3.

86 Principle 13 provides: ‘A detainee whose liberty has been deprived on suspicion of having committed a criminal offence is to, as soon as circumstances permit, be transferred to or have proceedings initiated against him or her by an appropriate authority. Where such transfer or initiation is not possible in a reasonable period of time, the decision to detain is to be reconsidered in accordance with applicable law.’

87 See Norland, Rod and Savage, Charlie, ‘U.S. delays transfer of Bagram prison to Afghan forces’, in The New York Times, 9 March 2013Google Scholar, available at:

88 Commentary, para. 15.5.