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Home Armed Conflict UN Working Group on Arbitrary Detention Adopts Principles and Guidelines on Habeas Corpus

UN Working Group on Arbitrary Detention Adopts Principles and Guidelines on Habeas Corpus

Published on May 5, 2015        Author: 

A couple of days ago the UN Working Group on Arbitrary Detention adopted an important document, the “Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of His or Her Liberty by Arrest or Detention to Bring Proceedings Before Court,” and submitted the text to the Human Rights Council. The document was developed by the WG at the Council’s request. The project is meant to guide Member States on principles on the judicial review of the lawfulness of detention. The drafting process was completed after extensive consultations with states and other stakeholders. A press release is available here, the full text of the Guidelines and Principle is here, while the submissions by interested states and other actors are here.

This is a rich document dealing with many different issues. Perhaps most interesting – and certainly bound to be the most controversial – are the WG’s conclusions with regard to deprivation of liberty in armed conflict. The WG takes a very strong position regarding the right of habeas corpus in wartime, which it sees as non-derogable in common to a number of other human rights bodies, finding for example that in international armed conflict even prisoners of war have the right of access to a judicial mechanism that would establish the lawfulness of their status-based preventive detention. The WG also takes the view that IHL does not authorize internment in NIACs, and that internment would only be lawful if it is prescribed by domestic law, after a derogation in a public emergency. Some of the most important paragraphs are reproduced below the fold.

Principle 16. Exercise of the right to bring proceedings before a court in situations of armed conflict, public danger or other emergency that threatens the independence or security of a State

45. All detained persons in a situation of armed conflict, as properly characterized under international humanitarian law, or in other circumstances of public danger or other emergency that threatens the independence or security of a State, are guaranteed the exercise of the right to bring proceedings before a court to challenge the arbitrariness and lawfulness of the deprivation of liberty and to receive without delay appropriate and accessible remedies. This right and corresponding procedural guarantees, complements and mutually reinforces the rules of international humanitarian law.

46. Domestic legislative frameworks should not allow for any restrictions on the safeguards of persons deprived of their liberty concerning the right to bring proceedings before a court under counter-terrorism measures, emergency legislation or drug-related policies,.

47. A State which detains a person in a situation of armed conflict, as properly characterized under international humanitarian law, or in other circumstances of public danger or other emergency that threatens the independence or security of a State, by definition has that person within its effective control, and thus within its jurisdiction, and shall guarantee the exercise of the right of the detainee to bring proceedings before a court to challenge the arbitrariness or lawfulness of the deprivation of liberty and receive without delay appropriate remedies. Reconsideration, appeal or periodic review of decisions to intern or place in assigned residence alien civilians in the territory of a party to an international armed conflict, or civilians in an occupied territory, shall comply with these Basic Principles and Guidelines, including the Basic Principle on ‘The court as reviewing body’.

48. Prisoners of war should be entitled to bring proceedings before a court to challenge the arbitrariness and lawfulness of the deprivation of liberty and receive without delay appropriate and accessible remedy. where the detainee: (a) challenges his or her status as a prisoner of war; (b) claims to be entitled to repatriation or transfer to a neutral State if seriously injured or seriously sick; or (c) claims not to have been released or repatriated without delay following the cessation of active hostilities.

49. Administrative detention or internment in the context of a non-international armed conflict may only be permitted in times of public emergency which threatens the life of the nation and the existence of which is officially proclaimed. Any consequent deviation from procedural elements of the right to bring proceedings before a court to challenge the arbitrariness and lawfulness of the deprivation of liberty and receive without delay appropriate and accessible remedy must be in conformity with these Basic Principles and Guidelines, including on ‘Non-derogability’; ‘Right to be informed’; ‘The court as reviewing body’; ‘Equality of arms’; and ‘Burden of proof’.

50. During armed conflict, the deprivation of liberty of children must only be a measure of last resort for the shortest period of time. Basic legal safeguards must be provided in all circumstances, including for children deprived of liberty for their protection or rehabilitation, particularly if detained by military or security services. Safeguards include the right to legal assistance and periodic review of the legality of the deprivation of their liberty by a court. The child has the right to have the deprivation of liberty acknowledged by the authorities and to communicate with relatives and friends.

73. Military tribunals are not competent to review the arbitrariness and lawfulness of the detention of civilians. Military judges and military prosecutors cannot meet the fundamental requirements of independence and impartiality.

Guideline 17. Exercise of the right to bring proceedings before a court in situations of armed conflict, public danger or other emergency that threatens the independence or security of a State
112. Where persons who have or are suspected to have engaged in the preparation, commission or instigation of acts of terrorism are deprived of their liberty:
(a) they shall be immediately informed of the charges against them, and shall be brought before a competent and independent judicial authority, as soon as possible, and no later than within a reasonable time period;
(b) they shall enjoy the effective right to judicial determination of the arbitrariness and lawfulness of their detention;
(c) the exercise of the right to judicial oversight of their detention does not impede on the obligation of the law enforcement authority responsible for the decision to detain or to maintain the detention, to present the detainee before a competent and independent judicial authority within a reasonable time period. Such person shall be brought before the judicial authority, which then evaluates the accusations, the basis of the deprivation of liberty, and the continuation of the judicial process;
(d) in the development of judgments against them, they shall have a right to enjoy the necessary guarantees of a fair trial, access to legal counsel, as well as the ability to present exculpatory evidence and arguments under the same conditions as the prosecution, all of which should take place in an adversarial process.
113. Where civilians are detained in relation to an international armed conflict, the following must be ensured:
(a) Reconsideration of a decision to intern or place in assigned residence alien civilians in the territory of a party to an international armed conflict, or civilians in an occupied territory, or appeal in the case of internment or assigned residence, must be undertaken “as soon as possible” or “with the least possible delay”. While the meaning of these expressions must be determined on a case-by-case basis, delays in bringing a person before the court or administrative board must not exceed a few days and must be proportional in the particular context;
(b) Although the particular procedures for reconsideration or appeal are for determination by the Detaining or Occupying Power, such proceedings must always be undertaken by a court or administrative board that offers the necessary guarantees of independence and impartiality, and its processes must include and respect fundamental procedural safeguards;
(c) Where decisions to intern or place a civilian in assigned residence are maintained following the latter proceedings, internment or residential assignment must be periodically reviewed, at least twice each year. Such review must be undertaken by a court or administrative board that offers the necessary guarantees of independence and impartiality, and whose processes include and respect fundamental procedural safeguards;
114. The right of persons detained as prisoners of war to bring proceedings before court without to delay to challenge the arbitrariness and lawfulness of their detention and receive appropriate and accessible remedy shall be respected in order to:
(a) determine whether a person does fall within the category of prisoner of war ;
(b) Act as a check to ensure that a seriously injured or seriously sick prisoner of war is repatriated or transferred to a neutral State; and/or
(c) Act as a check to ensure that prisoners of war are released and repatriated without delay after cessation of active hostilities.
115. In regard to detention in relation to a non-international armed conflict:
(a) administrative detention or internment may only be permitted in the exceptional circumstance where a public emergency is invoked to justify such detention. In such cases, the detaining State must show that the:
i) emergency rises to the level to justify derogation;
ii) administrative detention is on the basis of grounds and procedures prescribed by law of the State in which the detention occurs and consistent with international law; and,
iii). administrative detention of each person is necessary, proportionate and non-discriminatory, and the threat posed by that individual cannot be addressed by alternative measures short of administrative detention;
(b) A person subject to administrative detention in a non-international armed conflict has the right to bring proceedings before a court that offers the necessary guarantees of independence and impartiality, and whose processes include and respect fundamental procedural safeguards, including disclosure of the reasons for the detention and the right to defend oneself including through legal counsel;
(c) Where decisions to detain a person subject to administrative detention in a non-international armed conflict are maintained, the necessity of the detention must be periodically reviewed by a court or administrative board that offers the necessary guarantees of independence and impartiality, and whose processes include and respect fundamental procedural safeguards;
(d) Where an internment regime is established, it shall be consistent with international human rights law and international humanitarian law applicable to non-international armed conflict, to allow full compliance with the right to bring proceedings before a court.

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4 Responses

  1. Interesting. On POWs, the Working Group is considerably less forthcoming than the European Court of Human Rights was in Hassan. To wit:

    “the Court considers that, in relation to detention taking place during an international armed conflict, Article 5 §§ 2 and 4 must also be interpreted in a manner which takes into account the context and the applicable rules of international humanitarian law. Articles 43 and 78 of the Fourth Geneva Convention provide that internment “shall be subject to periodical review, if possible every six months, by a competent body”. Whilst it might not be practicable, in the course of an international armed conflict, for the legality of detention to be determined by an independent “court” in the sense generally required by Article 5 § 4 (see, in the latter context, Reinprecht v. Austria, no. 67175/01, § 31, ECHR 2005‑XII), nonetheless, if the Contracting State is to comply with its obligations under Article 5 § 4 in this context, the “competent body” should provide sufficient guarantees of impartiality and fair procedure to protect against arbitrariness” (Hassan, para 106).

    By comparison, the Working Group insists that POWs should be able to challenge the lawfulness of their detention before a court satisfying all the requirements of impartiality and independence normally expected in a domestic setting (para 48) rather than a ‘competent tribunal’ as required by Art 5 GC III. Add to this that the Working Group declares in para 73 that ‘[m]ilitary tribunals are not competent to review the arbitrariness and lawfulness of the detention of civilians.’ This raises the question whether a person who challenges their status as a POW in accordance with para 48 of the report is to be deemed a combatant or a civilian. In the latter case, para 73 of the report would kick in and the person challenging his or her status would have to be brought before a ‘proper’ court, rather than an Art 5 GC III tribunal. That’ll be fun. Picture the Gulf War of 1991, where allied forces were holding up to 175,000 POWs…

  2. I note that the WG’s understanding of state practice is partly based on a questionnaire sent to Member States, which did not specifically ask for views on the applicability of habeas corpus during armed conflict. Rather, the WG asked whether the writ applies to “all forms of deprivation of liberty” (see http://www.ohchr.org/Documents/Issues/Detention/DraftBasicPrinciples/Questionnaire_en.pdf, Q2). The Working Group appears to have formed the above view in its 2014 report (see A/AHRC/27/47, para 22) and accompanying background paper (see http://www.ohchr.org/Documents/Issues/Detention/BPConsultation2014.pdf at para 3 relying on earlier HRC documents). There are very few comments from States after this time (see the list available at http://www.ohchr.org/EN/Issues/Detention/Pages/DraftBasicPrinciples.aspx). I note, however, that the US did not accept the WG’s position and instead advocated the lex specials approach (see http://www.ohchr.org/Documents/Issues/Detention/Consultation2014/USA_2_response12.11.2014.pdf at pp. 2-3).

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