The latest post in the Joint Series on International Law and Armed Conflict is by Lawrence Hill- Cawthorne on the procedural regulation of detention.
I am pleased to have been asked to write a short blog post to outline some of the issues I raised as a discussant for the panel on the procedural regulation of detention at the Fourth Transatlantic Workshop on International Law and Armed Conflict, which took place in Oxford this summer. This is of course an area in which we have recently seen considerable controversy and rapid developments in practice, with cases such as the Serdar Mohammed litigation (on which see here and here) and Hassan v UK (on which see here) dominating much of the recent debates.
The present post does not seek to repeat the above debates but instead it picks out a few controversial points from these much broader discussions that remain unresolved. Everything that is said here is explored in more detail in a recent book that I have written on this topic. The questions that I wish to address here are:
In light of Hassan, which requires that, when making an assessment of compliance with international human rights law (IHRL) in an international armed conflict, a renvoi must be made to international humanitarian law (IHL), what controversies persist concerning:
- The review procedures for civilian internment and
- The procedural regulation of combatant internment?
To what extent has the law of international and non-international armed conflict converged here?
Detention in International Armed Conflict
The Hassan judgment offered a view as to the relationship between the European Convention on Human Rights (ECHR) and IHL, reading into Article 5 ECHR the grounds and procedures governing internment under the latter regime. Though seemingly simple, the IHL rules on internment, and the European Court of Human Rights’ (ECtHR) reasoning in Hassan, leave a number of questions unanswered. The first set of questions to which I wish to draw attention here relate to the review procedures stipulated under the Fourth Geneva Convention (GCIV) for civilian internment. Both Articles 43 (regarding civilians interned in enemy territory) and 78 (regarding civilians interned in occupied territory) require that initial and periodic review procedures be established to hear appeals against internment. Article 43 requires an ‘appropriate court or administrative board’, whilst Article 78 requires a ‘regular procedure’ with a ‘right of appeal’. However, the treaty text itself gives no more further guidance on this, including with respect to such fundamental matters as the make-up of review bodies, the actual procedures they should follow, and the right of an internee to appear in person and make representations before the review body.
These issues have been elaborated a little in practice. For example, the International Criminal Tribunal for the former Yugoslavia (ICTY) has held that these bodies, if they are to serve their function, must have the power to order the release of the detainee should their detention be deemed unnecessary for security (Prosecutor v Zejnil Delalić et al (Appeals Judgment) ICTY-96-21-A (20 February 2001) para 329). Moreover, the International Committee of the Red Cross (ICRC) takes the view that these bodies must operate impartially and independently from the authority that ordered the detention (see here at page 260). This is very minimal elaboration, however, and though States have developed their own interpretations in military doctrine, it is not clear that these are anything other than policy-based specifications (see here at page 54).
The limited regulation of the review of civilian internment under IHL takes us neatly into the second issue to which I wish to draw attention. This is the position of persons interned under GCIII as prisoners of war. This is a status that traditionally has been treated as advantageous, due to the detailed treatment standards granted to POWs and combatant immunity which comes with the status of combatant (which, though not coterminous with the status of POW, is the most common primary status that leads to the secondary status of POW) (see here at pages 47-8). With respect to detention, however, POW status is not necessarily advantageous, given its presumption of indefinite internment for the duration of hostilities without any form of review of the necessity of internment itself. The reason for this absence of review from GCIII is explained by the assumption that those meeting the definition of a POW (being principally enemy combatants) will necessarily pose a security threat against the detaining power, thus justifying internment for the duration of hostilities. However, the sweeping nature of many contemporary military operations in which large numbers of persons of unknown status are captured on the presumption of being combatants/POWs raises problems for this model under GCIII, for those that are wrongfully detained do not, on the plain text of GCIII, have any means of challenging this internment.
In light of this, it is not clear whether the ECtHR’s reasoning in Hassan v UK, in which it read down the requirements of Article 5(4) ECHR to make room for the kinds of review mechanisms States apply to civilian internment during international armed conflict, could be extended to persons interned indefinitely as POWs without any form of review. Indeed, the Court was clear on the importance of the continuation of review mechanisms in order to ensure compliance with Article 5(4) ECHR, and it did not simply read down Art 5(4) to allow for what the plain text of GCIV permits in this regard but instead adopted a middle ground (an important consequence of the fact that the Court did not accept the UK’s jurisdictional argument that the ECHR did not apply at all in such situations – the continued application of Art 5(4) in the background thus goes some way to humanise IHL’s often not particularly humanitarian rules). The Court may thus be unwilling to accept a complete absence of review procedures for persons challenging the status of POW (with its consequent of lengthy internment). Indeed, there is a growing practice to use Article 5 GCIII tribunals (designed for those claiming POW status where it would otherwise be denied) to fill this gap in IHL for those challenging POW status (see Nicholas Mercer’s chapter here on UK practice to this effect in Iraq).
Detention in Non-International Armed Conflict
While the rules applicable to internment in international armed conflicts may be vague, those applicable in non-international armed conflicts are virtually non-existent, with treaty law specifying no such rules for these situations. It is, of course, in non-international armed conflicts that much of the recent debates in this area have arisen. As with other areas, certain States have in recent years apparently adopted the view that the law of international and non-international armed conflicts have converged here. Indeed, military doctrine rarely draws a distinction between the two categories of conflict when stipulating precise rules. Moreover, in the 2012 Copenhagen Principles on the Handling of Detainees in International Military Operations (applicable, inter alia, in non-international armed conflicts), many of the principles set out mirror those applicable in international armed conflicts (see in more detail here). Finally, State practice in specific non-international armed conflicts (such as those in Sri Lanka and Nepal) demonstrates a reliance on internment regimes that often mirror, to different degrees, the regimes applicable under IHL in international armed conflicts. This all might suggest that the law of international and non-international armed conflict have converged in this area, as with in so many other areas.
In reality, however, the above practice does not support the claim that the law has converged here; indeed, convergence in this area if a fairly recent claim made by States involved in extraterritorial non-international armed conflicts. In the cases of military doctrine and the Copenhagen Principles, there is no opinio iuris to support the contention that custom requires the extension of the procedural rules on detention under IHL to non-international armed conflict. Indeed, the Commentary to the Copenhagen Principles is explicit about this when it says, ‘[s]ince the Copenhagen Process Principles and Guidelines were not written as a restatement of customary international law, the mere inclusion of a practice in the Copenhagen Process Principles and Guidelines should not be taken as evidence that States regard the practice as required out of a sense of legal obligation’ (para 16.2). Similarly, in the case of State practice adopting internment regimes in specific non-international armed conflicts, these regimes are adopted under domestic law, with no suggestion that they are required under IHL or customary international law. Indeed, many States in such situations have specifically derogated from their human rights treaty obligations relating to the right to liberty, demonstrating their view that those obligations, but for derogation, regulate detentions in such situations. These points are discussed in more detail here at pages 87-9.
It cannot therefore be said that custom has eliminated the distinction between international and non-international armed conflicts in this area. In this respect, the procedural regulation of internment is one of the few areas that remains immune to the general convergence of the law of international and non-international armed conflict. However, that is not to say that custom is silent here, and the ICRC’s Customary Law Study states that IHL prohibits the arbitrary deprivation of liberty in both international and non-international armed conflicts (see for more detail here at pages 90-8). Such a rule, importantly, binds not only States but also non-State armed groups that are party to a non-international armed conflict. In interpreting this standard, it might reasonably be held that the standards applicable in international armed conflicts under Articles 42 and 78 GCIV could be drawn on. However, this analogising would not affect the applicability of IHRL, which continues to apply alongside this basic customary norm, as confirmed by the UK courts in the recent Serdar Mohammed litigation (see the first instance and Court of Appeal decisions to this effect).
The procedural regulation of detention in armed conflict remains a topic of great controversy, and it is developing with considerable velocity in light of recent practice and case law. The Strasbourg Court’s judgment in Hassan offered a first glimpse of its approach to these issues in international armed conflicts, but many questions remain unanswered, both with respect to the content of very vague IHL treaty rules and the willingness of the European Court of Human Rights to read down Art 5 ECHR even further. Such questions arise in large part because IHL has, of course, not benefited from years of development and elaboration by courts, unlike IHRL. The great debates currently in this area are dominated by the context of non-international armed conflicts and the question of whether apparent gaps in IHL are to be filled with IHRL or by analogy to the law of international armed conflict. With the emergence of extraterritorial non-international armed conflicts, we are now a long way from the kinds of sovereignty concerns of States that historically made them reluctant to recognise situations on their own territories as non-international armed conflicts; applying IHL to these extraterritorial situations now offers States a range of benefits without any of the costs.