Jacques Hartmann is Lecturer in Law, Dundee Law School, Scotland.
On 20 October the Danish Government published a set of ‘Principles and Guidelines’ on the handling of detainees in international military operations. The Principles addresses uncertainties surrounding the legal basis for detention and the treatment of detainees during military operations in non-international armed conflicts, such as current operations in Afghanistan or Iraq. An impressive 22 States, including the P5, have expressed support. Human rights organisations, on the other hand, have expressed dismay. The following provides a short background to and comments on the non-legally binding text.
The Principles and Guidelines are the outcome of a five-year long process that was initiated by the Danish Government in 2007 – the so-called ‘Copenhagen Process’. The process was initiated in recognition of the fact that bilateral or ad-hoc solutions to detention during international military operations often led to unacceptable differences in the handling of detainees, which, according to the Danish Ministry of Foreign Affairs (MFA), are not only unsatisfactory in relation individual protection but at times also constitute a hindrance to effective military cooperation.
Legal uncertainties partly arise due to the changing nature of contemporary military operations. Instead of just fighting, in contemporary operations military forces are increasingly asked to ensure law and order. Thus whether they assist troubled governments (e.g. Afghanistan) or support an international administration of a territory (e.g. Kosovo), detention is an unavoidable part of the job. In this context, the Legal Adviser to the Danish MFA has set out some of the legal uncertainties that the Copenhagen Process sought to address:
“What is the legal basis for detention in international military operations? Which regime of treatment and conditions of detention applies to the detainees? What legal standards and procedures apply to transfers between States in a military coalition and the host State or internally between coalition partners? What exactly do we mean when we talk about ‘detention’? And not the least, do the answers to all these questions change when the situation in which the military operations take place changes from an international to a non-international conflict or to a situation of no conflict?”
The Principles and Guidelines do not answer all of these questions. Far from it. The published document contains a two-page long preambular introduction and 16 ‘Principles and Guidelines’ (of which one is a saving clause). The rest of the 26-page long document is entitled ‘Chairman’s Commentary’, which although noted by the Participants is the ’the sole responsibility of the Chairman’, i.e. the Danish Government.
In addition to the somewhat ambiguous title, the document adds little to fulfil the stated objective of ‘develop[ing] principles to guide the implementation of the existing obligations with respect to detention in international military operations’. In fact, some principles (or guidelines?) may be said to state the obvious whereas others are overly vague. A few principles do, however, contribute to the clarification or even development of customary international law.
The Principles and Guidelines only ‘apply to the detention of persons who are being deprived of their liberty for reasons related to an international military operation’ (clause 1). The concept of an ‘international military operation’ is not defined. The scope of application is therefore uncertain, and it is, for instance, unclear whether the Principles and Guidelines apply to UN missions – although this seems to be the understanding of Amnesty International.
Some clauses seem trivial. One states that ‘Persons not detained will be released.’ This and other clauses that either echo accepted legal standards or state the obvious – e.g. that detention must be conducted in accordance with ‘applicable international law’ – seem of little consequence; especially where, as indicated above, the law is uncertain.
Despite the vagueness, some clauses arguably develop existing international law. This might be the case for clause 5, which states that detaining authorities ‘should develop and implement operating procedures regarding the handling of detainees’. Other clauses note that detainees ‘should promptly be informed of the reasons for their detention’ (clause 7) and be ‘registered by the detaining authority’ (clause 8). While these principles may add to international law, they may still be criticised for their lack of detail. What, for instance, is meant by ‘promptly’? The wording seems to borrow from Article 5(2) of the European Convention on Human Rights (ECHR), but the Principles and Guidelines do not mention the extraterritorial application of human rights instruments. Instead, they merely recognise ‘the challenges of agreeing upon a precise description of the interaction between international human rights law and international humanitarian law’. In other words, the participants disagreed.
In relation to the interpretation of ‘promptly’, some clarification is found in the Chairman’s Commentary. The Commentary suggests a test of reasonableness ‘taking into account other essential tasks and resource limitations that may affect the detaining authority’s ability to inform the detainee.’ However, this is vague and it is difficult to imagine what essential tasks or resource limitations might prevent a detainee from being informed of the reasons for his detention. Might this include the absence of an interpreter? In short, more detail is needed.
More substance is provided in the latter clauses, which inter alia states that the detaining authorities are responsible for providing detainees with ‘adequate conditions of detention’ (clause 9). In itself this is hardly ground-breaking, but the relevant clause goes on to clarify the content of this responsibility, naming ‘access to open air’ and ‘protection against the rigours of the climate and the dangers of military activities’. Another clause mentions that detainees should have ‘appropriate contact with the outside world’ and be held in a ‘designated place of detention’ (clause 10). The text is careful not to use any wording that might imply a right, but if followed, the latter principle alone would do a lot to minimize the risk of ill-treatment in secret detention facilities that have been reported to exist around the world.
In addition to elaborating certain minimum standards, the Principles and Guidelines also distinguish between people detained for reasons of security and those detained on suspicion of having committed a criminal offence. The first group is to have their detention reviewed ‘periodically by an impartial and objective authority’ whereas suspected criminals, should be ‘transferred to or have proceedings initiated against him or her by an appropriate authority’ (clause 12-13). The distinction between these two categories of detainees in undoubtedly sound, but the text is again conspicuous in its lack of detail. Nowhere, for instance, is it stated whose or what ‘security’ must be at risk in order to justify detention.
Detention for reasons of security has to be ‘reconsidered periodically by an impartial and objective authority’ (clause 13). Whether such a system will satisfy the conditions of the ECHR – which contrary to the ICCPR does not allow preventive detention – will depend on the details of the scheme. What is certain is that it will not satisfy ECHR standards if such review only takes place every six months, as suggested in the Commentary. (See e.g. Medvedyev and Others v. France)
The lack of clarity in the Principles and Guidelines might reflect a lack of agreement. In relation to the definition of ‘detention’, the Commentary notes that ‘States have differing views as to when and under what circumstances a “restriction on liberty” amounts to detention’. States participating in the Copenhagen Process not only have different international obligations, but they also differ on fundamental legal issues, such as the extraterritorial application of human instruments. A legal fact accepted by most Europe States, but disputed by countries such as Australia and the US. (on extraterritoriality see Marko Milanovic’s book)
The Guidelines and Principles have been criticised for being irrelevant and unambitious. Amnesty International, for instance, has expressed concern that the Principles may ‘be exploited… to… avoid… obligations under international humanitarian and human rights law.’ This is not the first time that the Copenhagen Process has been criticised. Several NGOs have complained of their lack of involvement. This criticism has repeatedly been rejected. The Legal Advisor to the Danish MFA has stated that process was closed, but not secret. Moreover, he defended exclusion of civil society with the need to encourages openness of the States and international organizations involved (including the AU, EU, NATO, UN and ICRC). More recently, the Danish Minister for Foreign Affairs rejected any criticism, noting that the Principles of Guidelines would raise standards for countries with the lowest level of protections. These arguments would no doubt have been more readily accepted had the text been more ambitious.
There is a need for developing a legal framework. In relation with an ICRC study, protection of persons deprived of liberty was clearly identified as an area where further work is “urgently needed”. In international armed conflicts, detention is regulated. Geneva Convention III provides a legal basis for the detention of prisoners of war (Art. 21). Similarly, Convention IV provides an Occupying Power the authority to enact legislation to provide a legal basis for detention of non-combatants, but only if necessary for imperative reasons of security (Art. 64 and 78). Unlawful confinement of protected persons is, moreover, a grave breach of Geneva Convention IV (Art. 147). In non-international armed conflicts there is no equivalent legal framework, both common Art. 3 and Additional Protocol II are silent on the matter. In some cases a legal basis for detention might be implied in a Security Council resolution, but without a proper procedural framework this is hardly sufficient.
Principles or guidelines are therefore needed. Unfortunately, any potential advancement may be undermined by the uncertain nature of the Principles and Guidelines. As the title, the documents itself is ambiguous. While welcoming the text, the participants state that they are not seeking to ‘to create new legal obligations’. The Commentary goes further, stating that text ‘should not be taken as evidence that States regard the practice as required out of a sense of legal obligation’. At the same time, the text mentions that the participants recognize that ‘detention is a necessary, lawful and legitimate means of achieving the objectives of international military operations.’ This looks like opinio juris, and if the rest of the document cannot be read in the same way,the participants might be accused of having their cake and eating it too.
Whatever is meant by that phrase, the outcome of the Copenhagen Process does not provide enough guidance. Compared to similar endeavours, such as that which led to the Montreux document, which describes international law relating to private military and security companies, including a compilation of good practices, the outcome of the Copenhagen Process inadequate. The legal regime applicable to military operation, such as those in Afghanistan, Iraq, or indeed in future military operations, is in need of clarification and more importantly development. The Copenhagen Process was therefore an important initiative. Hopefully, it did not end here.
[In addition to Denmark, the following 21 states participated in the Copenhagen Process: Argentina, Australia, Belgium, Canada, China, Finland, France, Germany, India, Malaysia, New Zealand, Nigeria, Norway, Pakistan, Russia, South Africa, Tanzania, Turkey, Uganda, the United Kingdom, and the United States.]