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Closing a Protection Gap in IHL: Disciplinary Detentions by Non-State Armed Groups in NIACs

Published on July 3, 2018        Author: 
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Detentions by non-state armed groups (NSAGs) in non-international armed conflicts (NIACs) have been extensively analysed in the last few years. Most discussions have focused on whether the legal basis for the parties to NIACs to deprive their enemies or civilians of their liberty is implicit in international humanitarian law (IHL), or if it could alternatively be found elsewhere (para. 727).

Detentions by NSAGs of their own members have also been addressed, but only with respect to the command responsibility and prevention of IHL breaches. Although the analysis on the legal basis for detentions by NSAGs has been exhaustive, the possible detention of NSAGs’ own members as a result of a disciplinary measure without an IHL or criminal component has not yet been thoroughly studied (Clapham, 19-20). As it will be seen below, by not addressing these a person who intends to challenge his or her grounds of detention before the authorities of a NSAG could face a legal “black hole”.

The ICRC and The Two Types of Detentions in NIACs

The ICRC has explained that two types of detentions are included within the scope of Common Article 3 (CA3): those carried out in the context of criminal processes, for which CA3 imposes to the parties the obligation to a fair trial, and those detentions outside criminal processes, also known as “internment” (paras. 717-718).

In the first case, individuals would be detained for the commission of a criminal act, including violations to international law. Interestingly, the ICRC has affirmed that CA3’s reference to the “the passing of sentences and the carrying out of executions” alludes to criminal law procedures. Sentence is defined in this context as the judgment:

“that a court formally pronounces after finding a criminal defendant guilty; the punishment imposed on a criminal wrongdoer. This means that the guarantee of a fair trial in common Article 3 applies to the prosecution and punishment of persons charged with a penal offence” (para. 676, emphasis added).

Although not being the unanimous view (for instance, here, para 1451, and Cassese et al., p. 71), the ICRC has explicitly recognized that this type of detention applies to the parties’ own forces, which includes NSAGs:

Examples would include members of armed forces who are tried for alleged crimes – such as war crimes or ordinary crimes in the context of the armed conflict – by their own Party […] The fact that the trial is undertaken […] by their own Party should not be ground to deny such persons the protection of common Article 3 (para. 547).

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