Detention in Non-International Armed Conflicts

• Author: Knut Dormann
• Position: Head, Legal Division, International Committee of the Red Cross (ICRC)
• Pages: 347-366

XVI

Detention in Non-International Armed

Conflicts

Knut Dormann*

Introduction

Thequestion of detention in non-international armed conflicts (NIACs) has

made it to the forefront of the international legal and operational debate.

This is particularly due to the fact that most of current armed conflicts are ofanon-

international character and that they lead to important numbers of persons being

deprived of their liberty. When assessing the legal and operational challenges

posed in such situations, it is important to bear in mind that NIACs may take dif-

ferent forms, ranging from classical civil war situations with armed violence essen-

tially occurring within the confines of one single territory between government

armed forces and dissident armed forces or other organized armed opposition

groups, to NIACs spilling over to neighboring countries, and to armed conflict sit-

uations in which multinational forces intervene on the side of ahost government

against organized armed opposition groups. The debate, therefore, needs to focus

on common features to all types of NIACs, as well as on where distinctions need

possibly to be made. For example, with regard to aNIAC, when multinational

forces intervene on the side of ahost government, questions arise as to how to deal

*Head, Legal Division, International Committee of the Red Cross (ICRC). Special thanks are

due to Jelena Pejic, Legal Advisor, Legal Division, ICRC, for her substantive contribution to this

article. Thanks are also due to Helena Sunnegardh, Legal Attache, Legal Division, ICRC, for her

assistance.

Detention in Non-International Armed Conflicts

with the relationship between the third States and the host government, bearing

in mind that they may be subject to different domestic and international legal

obligations.

This contribution cannot attempt to look at all the challenges that arise; it can

only give asnapshot of them. As will be shown, amore in-depth discussion is re-

quired in the years to come. The article will focus on two main issues. It will first

address the applicable legal framework to detention in NIAC and, in particular, the

interplay between international humanitarian law (IHL) and international human

rights law; and second, present the International Committee of the Red Cross's

(ICRC's) analysis of the need to strengthen the law in light of humanitarian prob-

lems observed in its field operations and the related normative weaknesses. The

concluding remarks will then summarize how the international community has re-

sponded to the ICRC's analysis.

Before addressing these two issues, some observations on the sources of law ap-

plicable in NIAC should be made to set the frame.

The main sources of treaty IHL governing NIAC are Article 3 common to the

four Geneva Conventions of 19491(generally considered to reflect customary

law2), which specifically refers among others to persons in detention, 3and the 1977

Additional Protocol II to the Geneva Conventions, relating to the protection ofvic-

tims of non-international armed conflicts,4when applicable—namely, Articles 4-

6, which specifically relate to persons deprived ofliberty. 5The development ofcus-

tomary international law has complemented treaty law.6Due to the paucity of

treaty rules, customary IHL plays amore significant role in NIAC than in interna-

tional armed conflicts (IACs). Still, the question remains whether IHL needs to be

further strengthened, taking into account the challenges posed by current forms of

NIAC. In particular it needs to be assessed whether existing protections are strong

enough in such situations.

IHL is not the only legal framework relevant in NIACs. It is generally accepted,

despite the views of afew important dissenters, including the United States,7that

human rights law applies alongside IHL in armed conflicts, and that it also applies

extraterritorially. 8What is not settled is the precise interplay of the two branches of

international law in situations of armed conflict and the extent of the extraterrito-

rial application of human rights law.

It is widely accepted that IHL is the lex specialis in IAC (in the field of detention

of persons in particular through the detailed regulation on prisoners of war,

namely, in the Third Geneva Convention,9and internment of persons protected by

the Fourth Geneva Convention 10 ). However, the interplay is more complex in

NIAC for at least two reasons.

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