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

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).

That NSAGs can establish procedures for the commission of war crimes has also been accepted by international case-law (paras. 183 and 403). This type of detention is therefore grounded on the commission of certain crimes, including those of an international nature.

Regarding those carried out outside criminal processes, the ICRC has stated that:

“the term ‘internment’ refers to detention for security reasons in situations of armed conflict, i.e. the non-criminal detention of a person based on the serious threat that his or her activity poses to the security of the detaining authority in relation to an armed conflict” (para. 718).

With respect to their legal basis, the ICRC has affirmed that “both customary and international humanitarian law treaty law contain an inherent power to detain in non-international armed conflict” (para. 728).

These perspectives present different challenges, such as whether they make sense in light of the different NSAGs’ levels of organizations. One important concern is that detentions that neither have a criminal basis, nor present a “threat” to the detaining authority, would not be covered under the scope of IHL in NIACs. This scenario is problematic, as it seems to differentiate between NSAGs’ detention of their own members for the commission of crimes and for breaches to other internal rules.

Identifying the Gap: The Third Type of NSAGs’ Detentions in NIACs

Although not explained in IHL of NIACs, the distinction between disciplinary offences and those belonging to criminal law has been addressed by the European Court of Human Rights (ECtHR), which included three elements to be taken into account (paras. 82-85): i) whether the provision defining the offence belongs to criminal law, disciplinary law or both concurrently; ii) the nature of the offence – considered as the most important criterion (para. 38) –, affirming that when the individual is accused of contravening a rule governing the operation of the armed forces, disciplinary law would be applicable; and iii) the severity of the punishment.

Considering the inherent limitations of NSAGs, as some of them may not have written rules, and their provisional existence, this post submits that the second standard should be followed as guidance when determining each type of detention by NSAGs of their own members. The nature of the offence would therefore be decisive to determine whether a breach should be ruled by criminal law – and therefore, following the ICRC, the individual would be protected by CA3 – or addressed through a mere disciplinary proceeding. The latter would include, for instance, issues related to the structure and mere functioning of the group.

Certain real-life examples show the relevance of addressing this scenario. The Sudan People’s Liberation Army (SPLA) in its 2003 Act, for instance, provided for imprisonment for “absence without leave” (Art. 24) and “disobedience to superior officer” (Art. 27), but also for members who would use “criminal force” against the superior officers or subordinates (Arts. 25-26). Within the internal code of the Nduma Defence of Congo Renové, detention is included as a disciplinary measure for, among others, “ammunition losses”, “use of ammunition for private purposes”, and for “kidnapping” and “pillages” (p. 8). The statute of the National Resistance Army of Uganda envisioned detention as punishment for “service offences” (p. 45).

Although according to the ICRC NSAGs’ detentions of their own members with a criminal component would be regulated by IHL; the international framework of those as part of disciplinary mechanisms remains unclear. This gap needs to be addressed, as otherwise some detainees would be protected under IHL, while others could be left with no international legal safeguards.

Closing the Gap: Proposing and Rejecting Some Options

Two options to solve this are presented below: i) the application of international human rights law (IHRL) as a “protective net”; and ii) an IHL explanation based on the inherent level of organization of NSAGs as parties to NIACs. It is suggested that the second option is the most suitable one when dealing with these non-state actors.

IHRL as a “Protective Net”

This alternative proposes that IHRL constitutes a “protective net” for NSAGs’ own forces when detained for disciplinary and non-criminal reasons. Accordingly, NSAGs would be bound by IHRL with respect to their own members, who would be protected from arbitrary detention and could be arrested only for reasons established by their own laws. Two problems can nonetheless be raised: i) as the legal basis for the application of IHRL to NSAGs has not yet been settled, there is no uniform view on why and when NSAGs would be bound by this framework (para. 517); ii) even if IHRL’s application to NSAGs was accepted, it would entail another differentiated approach, under which certain detainees would be protected under IHRL, while others under IHL and IHRL.

NSAGs’ Organization: A Pledge in Favour of IHL

The level of organization of NSAGs as parties to NIACs is determined by certain indicative factors, such as the existence of disciplinary rules and mechanisms within the group to ensure respect for certain rules (Boškoski, para. 202). Internal discipline can indeed be considered as essential to the effective functioning of a NSAG.

Based on this, it is argued that NSAGs’ detentions of their own members without a criminal component are grounded on an inherent power as organized parties to NIACs (Limaj, para. 117). Although international bodies and tribunals normally deal with disciplinary measures in the context of the prevention and punishment of IHL violations, there is nothing to prevent NSAGs to address other types of breaches based on the same criterion. For instance, when assessing the organization of the KLA in Limaj, the ICTY took into account a “Programme for Military Police”, in which it was stated that “soldiers who leave the front line without the permission of the commander will be imprisoned” (para. 114). Rodenhäuser has explained that:

“[i]f a group has sufficient structures to require its members to respect a simple code of conduct, or if the group operates under strict unwritten rules, this should be sufficient proof of its ability to implement basic IHL” (p. 88).

Taking this into account, if an armed group has the level of organization to implement basic IHL, and therefore CA3 binds them with respect to their own members and their criminal procedures – as affirmed in the ICRC’s Commentary –, this should be proof of their ability to enforce internal rules by detaining their own members for non-criminal reasons. Logically, it seems counter-intuitive to demand NSAGs to have an internal disciplinary mechanism for IHL to bind them but were not permitted to detain their own members for other reasons in the first place.

A Challenge and a Possible Solution

This last position would have to solve certain practical difficulties. Although a detailed analysis of these would be useful – such as its impact on the principle of equality of belligerents –, only one will be addressed. Even if as parties to NIACs NSAGs could have an inherent power to arrest their own members for the abovementioned motive, their legal safeguards for reviewing such acts would need to be clarified. This serves for determining the arbitrariness of a detention. One possibility would be to apply the judicial guarantees enshrined in CA3, in a similar way as for criminal procedures against NSAGs’ own members. This, however, seems unrealistic, as most NSAGs will neither have the capacity nor the resources to establish “regularly constituted courts” every time they want to impose a disciplinary punishment.

Experts have nonetheless emphasized the need for “all disciplinary regimes to be foreseeable, and for a complaint mechanism to be available” (p. 40). In order to solve this, it is submitted that certain rules included in the Geneva Convention III, such as those related to POWs’ disciplinary punishments, could be applied by analogy. For instance, its Article 96 affirms that these can only be applied by an officer having disciplinary powers in his capacity, and that before any measure is pronounced, the accused shall be given precise information regarding the offences of which he is accused, and given an opportunity to explaining his conduct and of defending himself. As a technique for the development of international law that is used to fill gaps in a relevant body of law by drawing from another framework, analogy can be applied where the relevant situations are similar, such as those under analysis.

Although detentions by NSAGs of their own members that neither have a criminal basis, nor present a “threat” to the group have been often ignored from international debates, the protection of those individuals needs to be assessed.