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Non-State Armed Groups, Detention Authority in Non-International Armed Conflict, and the Coherence of International Law: Searching for a Way Forward

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Abstract

International humanitarian law establishes explicit safeguards applicable to detention occurring in non-international armed conflict. However, debate exists as to whether these treaty provisions establish an implicit legal basis for detention. This article approaches this debate in light of the application of international humanitarian law to non-state armed groups. It examines the principal arguments against implicit detention authority and then applies the law of treaty interpretation to international humanitarian law's detention-related provisions. On the basis of current understandings of international law – and the prohibition of arbitrary detention in particular – it is concluded that international humanitarian law must be interpreted as establishing implicit detention authority, in order to ensure the continued regulation of armed groups. Although, perhaps, problematic from certain states’ perspective, this conclusion is reflective of the current state of international law. However, this is not necessarily the end of the story. A number of potential ‘ways forward’ are identified: implicit detention authority may be (i) rejected; (ii) accepted; or (iii) re-examined in light of the non-state status of armed groups, and what this means for the content of the prohibition of arbitrary detention. These scenarios are examined in light of the desire to ensure: the coherency of international law including recognition of the role of armed groups, the continued effectiveness of international humanitarian law, and state sovereignty. An emphasis is placed on understanding the non-state status of armed groups and what this means for international regulation and the content of imposed obligations.

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1 See 1949 Convention (IV) relative to the Protection of Civilian Persons in Time of War, 75 UNTS 287, Art. 3; 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 1125 UNTS 609, Art. 5.

2 Common Art. 3 explicitly binds ‘each Party to the conflict’, while Art. I Additional Protocol II ‘develops and supplements’ Common Art. 3.

3 The legal basis for detention is considered to be distinct from the regulation of detention itself, and issues such as the grounds for detention, the legal review of detention, and so on.

4 Regarding the importance of this issue to states, see generally Serdar Mohammed & Others v. Secretary of State for Defence, Court of Appeal, [2015] EWCA Civ 843.

5 See Sections 1.2 and 5. This is not the case in relation to states who can, for example, establish detention authority by means of domestic legislation.

6 Z.C. Mampilly, Rebel Rulers: Insurgent Governance and Civilian Life during War (2011), 63. Other examples include the CPN-M in Nepal, the SPLA in Sudan, and FARC and ELN in Colombia. See Tuck D., ‘Detention by armed groups: overcoming challenges to humanitarian action’ (2011) 93 International Review of the Red Cross 759 , at 761.

7 Tuck, supra note 6, at 762.

8 See, ‘Mali: New Abuses by Tuareg Rebels, Soldiers’, Human Rights Watch, 7 June 2013, available at www.hrw.org/news/2013/06/07/mali-new-abuses-tuareg-rebels-soldiers; ‘Mali: ICRC visits detainees in the north’, International Committee of the Red Cross, 31 July 2012, available at www.icrc.org/eng/resources/documents/news-release/2012/mali-news-2012-07-31.htm.

9 ‘Letter to Misrata Councils’, Human Rights Watch, 8 April 2012, at 1, available at www.hrw.org/news/2012/04/08/libya-letter-misrata-councils.

10 ‘Sri Lanka's Return to War: Limiting the Damage’, International Crisis Group, 20 February 2008, at 13, available at http://cms.crisisgroup.org/asia/south-asia/sri-lanka/sri-lanka-s-return-war-limiting-damage.

11 R. Barrett, ‘The Islamic State’, The Soufan Group, November 2014, at 8 and 35, available at soufangroup.com/wp-content/uploads/2014/10/TSG-The-Islamic-State-Nov14.pdf.

12 E. Debuf, Captured in War: Lawful Internment in Armed Conflict (2013); Rona G., ‘Is There a Way Out of the Non-International Armed Conflict Detention Dilemma?’ (2015) 91 International Law Studies 32 , at 35–7; Goodman R., ‘Authorization versus Regulation of Detention in Non-International Armed Conflicts’ (2015) 91 International Law Studies 155 , at 158–60.

13 This was the argument accepted by the UK High Court and Court of Appeal in Serdar Mohammed. See, Serdar Mohammed v. Ministry of Defence, High Court of Justice, [2014] EWHC 1369 (QB), paras. 6(i) and (iv); Serdar Mohammed, Court of Appeal, supra note 4, para. 125. See also L. Hill-Cawthorne and D. Akande, ‘Does IHL provide a Legal Basis for Detention in Non-International Armed Conflicts?’, EJIL:Talk!, 7 May 2014, available at www.ejiltalk.org/does-ihl-provide-a-legal-basis-for-detention-in-non-international-armed-conflicts/.

14 See further Murray D., ‘How International Humanitarian Law Treaties Bind Non-State Armed Groups’, (2015) 20 Journal of Conflict & Security Law 1 .

15 Emphasis added.

16 L. Moir, The Law of Internal Armed Conflict (2002), 53. See also, G.I.A.D. Draper, The Red Cross Conventions (1958), 13.

17 Cassese A., ‘The Status of Rebels under the 1977 Geneva Protocol on Non-International Armed Conflicts’, (1981) 30 International & Comparative Law Quarterly 416 , at 424.

18 See the statements of the UK, Norway and Spain, Final Record of the Diplomatic Conference of Geneva of 1949, Volume II, Section B, 10–11; and the statements of Syria, Iraq and France, CDDH/I/SR.40, Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (Geneva 1974-77) Volume VIII, at paras. 4, 29 and 34 respectively.

19 Argentina, CDDH/SR.49, Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (Geneva 1974-77) Volume VII, 76.

20 See generally the discussion on draft Art. 8 of Additional Protocol II in CDDH/I/SR.32 and CDDH/I/SR.33, Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (Geneva 1974-77) Volume VIII.

21 The continued application of international human rights law during armed conflict is now well accepted. See, Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment of 19 December 2005, [2005] ICJ Rep. 168, at 242, para. 216.

22 This requirement is reflected in the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 221, Art. 5; 1969 American Convention on Human Rights, ‘Pact of San Jose’, 1144 UNTS 139 (1979), Art. 7; 1981 African Charter on Human and Peoples’ Rights, 1520 UNTS 217, Art. 6; and 2004 Arab Charter on Human Rights, reprinted in (2005) 12 International Human Rights Report 893, Art. 14.

23 J.-M. Henckaerts and L. Doswald-Beck, ‘Rule 99’ in Customary International Humanitarian Law, Volume 1: Rules (2005).

24 Human Rights Committee, General Comment No. 29: ‘States of Emergency (article 4)’, UN Doc. CCPR/C/21/Rev.1/Add.11 (2001), para. 11.

25 L. Hill-Cawthorne, Detention in Non-International Armed Conflict (2016). The prohibition of arbitrary detention under international human rights law did not necessarily enjoy this status at the time Common Art. 3 was adopted. However, the prohibition of arbitrary detention was confirmed in 1945 Universal Declaration of Human Rights, Res 217 A(III) (1945), Art. 9, which was adopted prior to the 1949 Geneva Conventions, and was clearly established prior to the adoption of 1977 Additional Protocol II, which ‘develops and supplements’ Common Article 3. Additional issues relating to treaty interpretation are discussed further in D. Murray, Human Rights Obligations of Non-State Armed Groups (2016), 164–6.

26 See, Saadi v. the United Kingdom [GC], Judgment of 29 January 2008, [2008] ECHR (2008-II), at 228–32, paras. 67–74.

27 L. Doswald-Beck, Human Rights in Times of Conflict and Terrorism (2011), 255. Emphasis added.

28 Human Rights Committee, General Comment No. 3: ‘Article 9 (Liberty and security of person)’, UN Doc. CCPR/C/GC/35, 16 December 2014, para. 11. See also, A and Others v. the United Kingdom [GC], Judgment of 19 February 2009, [2009] ECHR (2009-II), at 215, para. 164.

29 See, 1945 Charter of the United Nations, 1 UNTS XVI, Arts. 39 and 103.

30 Rona, supra note 12, at 44. Some suggest that an implicit legal basis for detention is contained in the mandate to take ‘all necessary measures’. See the argument of the United Kingdom in Al-Jedda v. the United Kingdom [GC], Judgment of 7 July 2011, [2011] ECHR (2011-IV), at 367, para. 88.

31 Rona, supra note 12, at 38.

32 See Section 279(2), Criminal Code, R.S.C., 1985, c. C-46 with regards to the Canadian criminal law; see the offence of false imprisonment under the common law in England and Wales. See further, Debuf, supra note 12, at 460, 462.

33 Even if a legal basis for armed group detention is established consequent to a Chapter VII UN resolution, such authority will necessarily be sporadic and restricted in its applicability. As such, it fails to satisfy the difficulties addressed in Section 5 below.

34 See further, Murray, supra note 25.

35 See generally, Social and Economic Rights Action Center and the Center for Economic and Social Rights v. Nigeria, Decision, Communication No. 155/96, African Commission on Human Rights, 27 October 2001, para. 57; Osman v. United Kingdom, Judgment of 28 October 1998, [1998] ECHR (1998-VIII), at 32, para. 115.

36 International human rights law requires that there be a legal basis for detention, irrespective of who actually conducts the detention. This is evident from a plain textual reading of the relevant treaty law, see for instance, 1966 International Covenant on Civil and Political Rights, 999 UNTS 171, Art. 9(1).

37 This argument focuses on the fact of regulation.

38 This argument focuses on the regulation of illegal situations.

39 See, Jinks D., ‘International Human Rights Law in Time of Armed Conflict’, in Clapham A. and Gaeta P. (eds.), The Oxford Handbook of International Law in Armed Conflict (2014), 656 , at 666–9; Hill-Cawthorne and Akande, supra note 13. It is highlighted that these authors do not explicitly refer to the Lotus principle, and that some of the arguments addressed therein are also relevant in the context of Section 3 below.

40 The Case of the SS Lotus (France v. Turkey), Judgment No. 9, 7 September 1927, PCIJ Rep Series A No 10, para. 44. Emphasis added.

41 Ibid., para. 46.

42 Accordance with International Law of the Unilateral Declaration of Independence In Respect of Kosovo, Advisory Opinion of 22 July 2010, [2010] ICJ Rep. 403, at 425, para. 56.

43 Customs Regime between Germany and Austria (Protocol of March 19th, 1931), Advisory Opinion of 5 September 1931, PCIJ Rep Series AB No 41, Separate Opinion of Judge Anzilotti, para. 81. Emphasis added.

44 The UK Court of Appeal questioned the continuing legitimacy of the Lotus principle. Serdar Mohammed, Court of Appeal, supra note 4, para. 197.

45 See above Section 1.2.

46 See, for example, Henckaerts and Doswald-Beck, supra note 23, Rule 99.

47 The Serdar Mohammed case centred upon the identification of this legal basis.

48 See supra notes 303 and accompanying text.

49 Debuf, supra note 12, at 468.

50 Armed Activities case, supra note 21, at 209, paras. 92–105. See Hill-Cawthorne and Akande, supra note 13.

51 Further discussion relating to the jus ad bellum, the jus in bello and the relationship between the two is beyond the scope of this article.

52 See Preamble (para. 5) Additional Protocol II; Art. 2 common to the 1949 Geneva Conventions; Jinks, supra note 39, at 668.

53 UN Charter, supra note 29, Art. 2(4).

54 Ibid., Art. 51.

55 Ibid., Art. 42.

56 Prosecutor v. Furundzija, Judgement, Case No. IT-95-17/1-T, Trial Chamber, 10 December 1998, para. 155.

57 See Section 1.2 above.

58 Armed Activities case, supra note 21, at 212, para. 105.

59 Hill-Cawthorne and Akande, supra note 13.

60 See UN Charter, supra note 29, Arts. 2(1) and 2(4).

61 The use of force and infringements on territorial integrity are not subject to an absolute prohibition. See ibid., Arts. 42 and 51.

62 Armed Activities case, supra note 21, at 211, para. 99.

63 An illegal situation was regulated in order to secure a return to a situation in compliance with international law.

64 Armed Activities case, supra note 21, at 212, para. 103.

65 Serdar Mohammed, High Court of Justice, supra note 13, para. 105.

66 Debuf, supra note 12, at 466.

67 Serdar Mohammed, High Court of Justice, supra note 13, para. 246; Serdar Mohammed, Court of Appeal, supra note 4, para. 217.

68 Aughey S. and Sari A., ‘Targeting and Detention in Non-International Armed Conflict: Serdar Mohammed and the Limits of Human Rights Convergence’, (2015) 91 International Law Studies 60 , at 96.

69 Ibid.

70 See N. Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law (2009); Schmitt M., ‘The Interpretive Guidance on the Notion of Direct Participation in Hostilities: A Critical Analysis’, (2010) 1 Harvard National Security Journal 5 ; Parks W. Hays, ‘Part IX of the ICRC “Direct Participation in Hostilities” Study: No Mandate, No Expertise, and Legally Incorrect’, (2010) 42 NYU Journal of International Law and Politics 769 ; Boothby B., ‘“And For Such Time As”: The Time Dimension To Direct Participation in Hostilities’, (2010) 42 NYU Journal of International Law and Politics 741 .

71 This has significant implications. For example, it indicates the transition from a use of force model based on international human rights law, to authorization of the use of direct lethal force against individuals directly participating in hostilities (under appropriate circumstances).

72 Prosecutor v. Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case No. IT-94-1, Appeals Chamber, 2 October 1995, para. 70.

73 Prosecutor v. Milosevic, Decision on Motion for Judgement of Acquittal, Case No. IT-02-54-T, Trial Chamber, 16 June 2004, para. 17; Prosecutor v. Boskoski, Judgement, Case No. IT-04-82-T, Trial Chamber, 10 July 2008, para. 177; Prosecutor v. Lubanga, Judgment pursuant to Article 74 of the Statute, Case No. ICC-01/04-01/6, Trial Chamber, 14 March 2012, para. 537.

74 See further, Murray, supra note 25, Ch. 8(I). In relation to detention in non-international armed conflict generally, see Hill-Cawthorne, supra note 25.

75 See, e.g., Hassan v. the United Kingdom [GC], Judgment of 16 September 2014, [2014] ECHR, at 51, para. 100.

76 1969 Vienna Convention on the Law of Treaties, 1155 UNTS 331.

77 Case Concerning the Territorial Dispute (Libya Arab Jamahriya/Chad), Judgment of 3 February 1994, [1994] ICJ Rep. 6, at 19, para. 41.

78 M.E. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (2009), 428.

79 A. Cassese, International Law (2005), 179.

80 International Law Commission, ‘Reports of the International Law Commission on the second part of its seventeenth session and on its eighteenth session’, UN Doc. A/6309/Rev.1, (1966) YILC, Vol. II, at 219, para. 6.

81 Reparations for injuries suffered in the services of the United Nations, Advisory Opinion of 11 April 1949, [1949] ICJ Rep. 174, at 182. Emphasis added.

82 See generally, Rama-Montaldo M., ‘International Legal Personality and Implied Powers of International Organizations’, (1970) 44 British Yearbook of International Law 111 , at 111.

83 Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion of 8 July 1996, [1996] ICJ Rep. 66, at 16, para. 25.

84 See above Section 1, Subsections 1 and 2.

85 See, for example, the discussion relating to armed group capacity issues in relation to draft Art. 8 (relating to detention) of Additional Protocol II in CDDH/I/SR.32 and CDDH/I/SR.33, Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (Geneva 1974-77) Volume VIII.

86 See above, Section 1.2.

87 In this situation, the regulation of detention would be invalid as, absent a legal basis, the detention itself would be prohibited. See above Section 3.

88 I.e., the regulation of all instances of detention occurring in non-international armed conflict.

89 See above Section 3.

90 Fitzmaurice M., ‘The Practical Working of the Law of Treaties’, in Evans M.D. (ed.), International Law (2014), 182 .

91 ICRC Opinion Paper, ‘Internment in Armed Conflict: Basic Rules and Challenges’, November 2014, at 7. See also, Pejic J., ‘The protective scope of Common Article 3: more than meets the eye’, (2011) 93 International Review of the Red Cross 189 , at 207.

92 The content of the obligation may need to be altered. For example, the prohibition of arbitrary detention may be interpreted differently during armed conflict in light of the applicable law of armed conflict.

93 France, Statement, Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II Section B, at 10.

94 Elder D.A., ‘The Historical Background of Common Article 3 of the Geneva Conventions of 1949’, (1979) 11 Case Western Reserve Journal of International Law 37 , at 68.

95 See, Greece, Statement, Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II Section B, at 11. But, see the statement of Hungary which disagreed with this proposition, Hungary, Statement, Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II Section B, at 11.

96 United States of America, Statement, Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II Section B, at 12.

97 See above Section 5.

98 Armed Activities case, supra note 21, at 242, para. 216.

99 Human Rights Committee, General Comment No. 29, supra note 24, para. 11.

100 Henckaerts and Doswald-Beck, supra note 23.

101 For instance, in Mexico it was reported that vigilante groups detained suspected members of drug gangs and handed them over to the police for prosecution, but that these individuals were released a short time later. In response to this apparent lack of action, the vigilante groups stated that, ‘we decided not to detain anyone anymore’. S. McCrummen, ‘In Mexico, self defense groups battle a cartel’, The Washington Post, 10 September 2013.

102 See, e.g., Sassoli M., ‘Should the obligations of states and armed groups under international humanitarian law really be equal?’, (2011) 882 International Review of the Red Cross 425 , at 429.

103 See below Section 6.3.

104 The majority of armed groups cannot independently establish a legal basis for their activity as they do not have legislative authority. As such, any legal basis must be established under international law.

105 I.e., armed groups are not states and should not necessarily be treated as such. See for instance, Reparations for injuries, supra note 81, at 179.

106 See, e.g., 1949 Geneva Convention (III) relative to the Treatment of Prisoners of War, 75 UNTS 135, Art. 4; 1949 Geneva Convention (IV), supra note 1, Arts. 42, 43, and 78.

107 1950 ECHR, supra note 22, Arts. 5 and 14.

108 Hassan case, supra note 75, at 53, para. 104.

109 Ibid., at 53f, para. 105.

110 See further, ibid., at 53f, paras. 105–7.

111 Noting that the current content of the prohibition was developed for the purposes of binding states.

112 Of course, this requirement remains applicable vis-à-vis states’ detention.

113 See, Doswald-Beck, supra note 27, at 257–63.

114 Saadi case, supra note 26, at 228, para. 67.

115 Ibid.

116 Ibid., at 228f, paras. 67–8.

117 Mukong v. Cameroon, Views, Communication No. 458/1991 (UN Doc. CCPR/C/51/D/458/1991), Human Rights Committee, 10 August 1994, para. 9.8.

118 See, e.g., O. Bangerter, ‘Internal Control: Codes of Conduct within Insurgent Armed Groups’, (2012) Small Arms Survey Occasional Paper No. 31.

119 See Serdar Mohammed, Court of Appeal, supra note 4, para. 190.

120 See further, Murray, supra note 25, Ch. 8(I).

121 Broadly similar undertakings include Melzer, supra note 70.

122 See, e.g., UN Economic and Social Council, Standard Minimum Rules for the Treatment of Prisoners, UN Doc. A/RES/70/175 (2015); and UN Congress on the Prevention of Crime and the Treatment of Offenders, Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (1990).

123 Hassan case, supra note 75, at 53, para. 104; Coard et al. v. United States, Decision of 29 September 1999, IACHR, Case 10.951, para. 42.

124 A legal basis is not required as armed groups can conform to the prohibition of arbitrary detention, without establishing a legal basis. This is only possible if the prohibition of arbitrary detention is interpreted as excluding the legal basis requirement when applied to armed groups. If it is not, regulation requires authorization, as discussed above in Section 3.

125 In this regard, it is suggested that a key issue in relation to armed group compliance with international law is whether international law is appropriate to the reality of armed groups, and not whether armed group conduct is criminalized under national law.

126 See, Al-Skeini v. The United Kingdom, Judgment of 7 July 2011, [2011] ECHR (2011-IV), at 168, para. 137.

127 Hassan case, supra note 75, at 53, para. 104; Coard case, supra note 123, para. 42.

128 See further, Murray, supra note 25, Ch. 8.

129 See, e.g., 1966 ICCPR, supra note 36, Art. 9(4); 1950 ECHR, supra note 22, Art. 5(4).

* Lecturer, School of Law & Human Rights Centre, University of Essex []. The author would like to thank Prof. Noam Lubell, Prof. Lorna McGregor and Nathan Derejko for their helpful comments on an earlier draft of this article. Responsibility for the article is the author's alone.

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