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Home Posts tagged "Detention"

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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Active Hostilities and International Law Limits to Trump’s Executive Order on Guantanamo

Published on March 13, 2018        Author:  and
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In his State of the Union speech on January 30, 2018, U.S. President Donald Trump announced his signing of a new executive order aimed at keeping open the U.S. detention facility at Guantanamo Bay, Cuba, as well as approving its repopulation. This post considers how the law of war governing detention in armed conflicts constricts the ability of the U.S. to hold persons in military prisons at Guantanamo in the manner suggested by this new order.

Formally speaking, Trump’s executive order repeals a critical portion of President Obama’s 2009 order calling for the Guantanamo prison site to be closed “as soon as practicable, and no later than 1 year from the date of this order.” The 2018 order also provides that the U.S. may “transport additional detainees” to the facility “when lawful and necessary to protect the nation.”

On the one hand, this executive order simply makes explicit what has already been President Trump’s de facto Guantanamo policy since taking office. While the Obama Administration worked to reduce the Guantanamo population considerably, resettling 197 of the 242 detainees remaining at the facility, President Trump has resettled none — not even five detainees cleared for release by the Department of Defense prior to Trump’s taking office. On the other hand, the order reflects a radical shift in policy. Read the rest of this entry…

 

Non-State Actors and Non-Refoulement: The Supreme Court’s Decision in Zain Taj Dean

Published on July 28, 2017        Author: 
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Lord Advocate v. Zain Taj Dean [2017] UKSC 44 concerned an extradition request, made by the Republic of China in Taiwan (‘ROC’). Dean, a British national, had lived in Taiwan for many years. In 2011, he was convicted for manslaughter, drunk-driving and leaving the scene of an accident by an ROC court. While on bail, pending an appeal, he fled to Scotland. His convictions and four-year sentence were upheld, in absentia, in 2012. The request was made pursuant to an ad hoc ROC/UK MOU, and in accordance with section 194 of the Extradition Act 2003. The Edinburgh District Court ruled that Dean could be extradited but the Scottish Appeal Court disagreed. The Supreme Court had to decide whether Dean’s extradition, to serve out the remainder of his sentence in Taipei prison, would violate Article 3 of the ECHR.

As the greatest risk of harm emanated from other prisoners – rather than from public officials or the prison conditions themselves – the Supreme Court decided that the correct test was whether the requesting ‘State’ had offered to put in place reasonable protective measures to obviate this risk. To this end, it drew a distinction between State agents and non-State actors for this purpose despite the fact that the prison would be under the public authorities’ direct authority and control at all times. This post argues that this approach amounts to a misapplication of the Strasbourg jurisprudence, invoked by the Supreme Court, with potentially serious consequences for the interpretation of the non-refoulement principle in detention cases.   Read the rest of this entry…

 

Reflections on the European Committee on the Prevention of Torture’s Report on the UK

Published on April 21, 2017        Author: 
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The European Committee on the Prevention of Torture (CPT), the Council of Europe monitoring body responsible for visiting places of detention in member states, recently published its report on its visit to the UK in 2016. The report was published at the request of the UK and a response is expected shortly.

The report is important in three respects. First, the report is striking in the number of concerns it raises about ill-treatment in places of detention in the UK, including inter-prisoner violence, a lack of safety in prisons, use of restraint and separation in psychiatric hospitals, solitary confinement of children and indefinite lengths of immigration detention. Second, the nature of the concerns raised in the report prompts questions on whether measures to eradicate ill-treatment are sufficient or whether in some instances the use and legitimacy of detention itself needs to be considered. Third, the report is part of a wider context of national reviews and reform and recent and forthcoming recommendations by the UN on the use, legitimacy and treatment in detention in the UK. This level of attention to detention in the UK raises interesting questions for scholars and practitioners on implementation and compliance with international human rights law and the conditions necessary to bring about change. Read the rest of this entry…