Detainees who are under lawful pre-trial detention are protected by the judicial guarantee provisions of Common Article 3 and Protocol II of Geneva Conventions (GC). Apart from these rules on the treatment of detainees, international humanitarian law (IHL) does not provide any explicit legal basis for the conditions, grounds, and procedures of detention in Non International Armed Conflicts (NIACs). Such silence of the law on the present issue can be understood as clear prohibition, hesitant neutral position or implicit permission. According to ICRC’s position, both customary and treaty IHL provide an “inherent power” to detention for security reasons in situation of armed conflicts. In this regard, such detention can be authorized
– or at least is not prohibited by IHL. Another view is that IHL should have made the relevant legal basis explicit, and in the absence of explicit rules, no authorization can be implicitly observed.
In cases where such detention exists without access to the habeas corpus, specific analysis can be conducted by analogy to the rules of IHL of international armed conflicts (IACs) and under customary law. Meanwhile, considering the silence in IHL rules, it is important to determine whether international human rights law (IHRL), as the possible lex specialis, can provide an answer.
Response in the rules for International Armed Conflicts (IACs)
It is argued that if the rules for IACs on detention can be applied in NIACs, they should have been made explicit. Such disciplinary measures that will deprive a person’s fundamental right to liberty should not be read into the Conventions without clear evidence that this is the collective intention of the state parties.
More problematic is the application of such analogy in the possible recognition of a status of fighters in the hand of enemy. Since there is no combatant or prisoner of war status in NIACs, rules contained in the Geneva Convention III cannot be applied through analogy. The fighters cannot be detained without any individual determination and procedure until the end of active hostilities. A better analogy in the face of lacuna, if any, is to treat the detention of these fighters as civilians in IACs, since they have lost their continuous combat function. Some argue that the persons can only be detained if “the security of the Detaining Power makes it absolutely necessary” (GC IV Art. 42). The International Criminal Tribunal for the former Yugoslavia in Mucić case held that the detention of civilians is only permitted with “serious and legitimate reasons”. Those who can be detained should be “a real threat to [the party’s] present or future security”. Accordingly, detention for security reasons is not prohibited. However, like the Mucić judgement has rightly noted, there should be a judicial or administrative body in charge of reviewing the decision of detention. In this sense, access to habeas corpus should in any event be guaranteed and detention without such access should be prohibited.
Response in IHRL
In protecting the right to liberty, IHRL establishes, among others, an obligation to provide a person deprived of liberty with an opportunity to challenge the lawfulness of detention with proceedings before a court. It is also addressed as right to habeas corpus. However, the right to liberty is not non-derogable. IHRL only prohibits arbitrary deprivation of liberty, as prescribed for example in ICCPR Article 9(1) and American Convention on Human Rights Article 7(3). However, the UN Human Rights Committee stated that “in order to protect non-derogable rights, the right to take proceedings before a court to enable the court to decide without delay on the lawfulness of detention, must not be diminished by a State party’s decision to derogate from the Covenant”. Therefore, the right to habeas corpus is in itself non-derogable. Judicial remedy and right to trial are so crucial for the protection of non-derogable rights, that the leeway for them is scarce. Despite “security reasons”, depriving the right to habeas corpus still satisfies the arbitrariness threshold and should be prohibited.
IHRL is applied differently in conflict and in peacetime. According to the Human Rights Committee, in conflict situation administrative detention for security reasons authorized and regulated by and complying with IHL in principle is not arbitrary. However, outside of this context, security detention presents a severe risk of arbitrary deprivation of liberty and can only be permissible under the most exceptional circumstances.
The practical reality of NIACs should also be taken into consideration. For example, even if it is established that the right to habeas corpus must be granted, armed groups do not necessarily have the interest or capacity to form a court and provide judicial remedies to the detainees. Indeed, turning to IHRL when IHL is silent on a particular issue overlooks the legal and practical limits of the applicability of IHRL to non-state parties to NIACs. And in times of armed conflict, it is also difficult to respect wholeheartedly the higher standard in IHRL if military necessity asks for acting otherwise.
Response in customary law
IHL Rule 99 prohibits, much in the spirit of IHRL and with a strong support from state practice (for example Article I, Section 9 of the US Constitution), the prohibition of arbitrary deprivation of liberty. The rule is applicable in NIACs as well as in IACs. As stated, depriving the right to habeas corpus constitutes arbitrary deprivation of liberty.
Response in domestic law
It is also noteworthy to consider the role of domestic law, since States have generally relied on domestic law to provide the legal basis and procedural requirements for their detention practices in NIACs. It is not surprising to find that domestic law would not allow armed groups within its territory to detain or intern members of a state's armed forces.
Based on the above analysis and arguments, it can be concluded that while the legality of detention in NIACs itself is controversial, the administrative detention for security reasons without access to the habeas corpus, regardless of the status of the detainee, is in any event prohibited.