Introduction
Whether it is international or non-international, armed conflict exemplifies the most traditional national security threat.Footnote 1 Irrespective of its nature or legitimacy, armed conflict often challenges and threatens a State's basic and common national security interests: the survival of its government, territorial integrity, political sovereignty or the well-being of its population. Accordingly, any measure that a State takes to deal with an armed conflict could in principle be assumed to have been dictated by the need to preserve its national security.Footnote 2
In international law, a State whose national security is under threat is entitled to resort to all legitimate options, including the right to wage war in self-defence.Footnote 3 It may also adopt measures that have the effect of restricting the rights and freedoms of individuals.Footnote 4 Security detention is one of such measures that a State in a war may take to protect its overall security and continued survival. However, the legality of such measures in international humanitarian law (IHL), particularly in a situation where a State is involved in a non-international armed conflict (NIAC), is far from precise and has been a point of great controversy in both judicial and non-judicial fora. In contexts of international armed conflict (IAC), too, a close review of the rules of IHL on areas of security detention reveals a considerable number of gaps or lack of clarity.
This article builds upon existing literature on issues of detention and attempts to flesh out the legal limits of security detention if and when it is imposed on individuals in armed conflict situations. To this end, it is comprised of two main parts. The first part deals with the legality of security detention in both IACs and NIACs and addresses the perennial question of whether IHL provides a legal basis for (security) detention in armed conflict situations, more specifically in NIACs. Predicated upon an affirmative finding that security detention is indeed permissible in both IACs and NIACs, the second part identifies some substantive and procedural limits to security detention. In IACs, however, the rules of IHL governing security detention vary depending on whether the detention happens in a State's own or occupied territory. The nature of the protected security interest that triggers the measure and the procedural and substantive safeguards against arbitrary detention are also different.Footnote 5 For this reason, in the second part of the article, an effort is made to highlight the strictures of the law when security detention occurs in both “own” and “occupied” territories, and the extent to which some limits, in the form of substantive and procedural safeguards, may be invoked or applied in the contexts of NIACs. These limits are derived from the practice of domestic and international judicial institutions, other relevant rules of international law including international human rights law (IHRL) and legal doctrine, and International Committee of the Red Cross (ICRC) legal and policy documents. The article concludes with some remarks that the author considers relevant to assist the development of the law regulating detention, more specifically security detention during armed conflict situations.
At the outset, it should be pointed out that in this paper, the term “detention” is used to refer to all measures depriving individuals of their liberty, irrespective of the reasons for the detention. The terms “internment”, “security detention” and “preventive or administrative detention” are also used interchangeably to refer to the detention of individuals that is prompted by security reasons. This excludes other forms of deprivation of liberty, including but not limited to detention for purposes of instituting a criminal charge against a person. The expression “arbitrary detention” generally describes a situation where detention or deprivation of liberty is not in accordance with grounds and procedures or conditions specified in domestic and international laws.Footnote 6
Prohibition of arbitrary detention in international law
The right to liberty is one of the most sacrosanct and highly safeguarded rights in international law. IHRL strictly prohibits the arbitrary arrest and detention of individuals.Footnote 7 Despite the absence of an explicit treaty provision to that effect, there is also a growing consensus that customary rules of IHL similarly forbid the arbitrary and capricious detention of individuals in armed conflict situations.Footnote 8 Furthermore, arbitrary detention is usually viewed as something incompatible with the requirement of humane treatment – a norm that has a solid foundation in the various rules applicable in international and non-international armed conflicts alike.Footnote 9 Given that IHRL continues to apply during armed conflict,Footnote 10 the relevant rules of human rights law may be considered to give this prohibition an alternative legal basis in treaty law.
In IHRL, whether or not a particular detention is arbitrary depends on the permissibility of its grounds, whether it has a legal basis, and the observance of the available procedures for detention.Footnote 11 Although most human rights treaties, with the notable exception of the European Convention on Human Rights (ECHR),Footnote 12 do not provide a list of possible grounds of detention, different human rights treaty bodies have identified national security as one of the non-arbitrary, legitimate grounds of detention.Footnote 13 It is now well established that in peacetime, IHRL gives States the authority to impose security detention on individuals threatening their security. Nevertheless, the permissibility of security detention is not that straightforward in armed conflict, particularly in the context of NIACs.
Permissibility of security detention in IACs
The extant rules of IHL envision various forms of restriction to the liberty of persons existing in armed conflict situations, including security detention. The Third Geneva Convention (GC III) allows the detention of combatants as prisoners of war (PoWs) until the end of active hostilities to prevent them from rejoining the military of the State on which they depend or returning to the battlefield.Footnote 14 This measure may itself be considered as a national security measure in its wider sense. As rightly pointed out by the ICRC, PoWs
may use force, i.e. target and kill or injure other persons taking a direct part in hostilities and attack military objectives. Because such activity is obviously prejudicial to the security of the adverse party, the Third Geneva Convention provides that a detaining State “may subject prisoners of war to internment”.Footnote 15
Unlike in the case of civilian internees, the State is not required to show necessity to detain PoWs. Necessity is presumed, and no judicial review is required.Footnote 16 A PoW is normally not closely confined but rather held in a camp under IHL, but if charged with a crime may also be confined while awaiting trial “if it is essential to do so in the interests of national security”.Footnote 17 Similarly, the Fourth Geneva Convention (GC IV) permits the internment and placing in assigned residence of protected persons and other civilians both in the territory of a belligerent State and in an occupied territory when doing so is necessitated by security considerations.Footnote 18 It is thus evident from both conventions that the law of IAC duly acknowledges the traditional power of States to detain persons endangering their national security.
Is there a legal basis for security detention in NIACs?
In contrast to the rules governing IAC, the part of IHL regulating NIACs does not explicitly specify national security as a lawful ground for detention. For that matter, there is no explicit legal basis of detention in this law even for other grounds such as criminal charge. This lack of explicit authorization or proscription of detention in the rules governing NIACs has been a source of continuous debate among scholars and practitioners.Footnote 19
Some contend that Article 3 common to the four Geneva Conventions and Articles 5 and 6 of Additional Protocol II (AP II) implicitly recognize the possibility of security detention during situations of armed conflict.Footnote 20 These provisions talk about persons deprived of “liberty for reasons related to the armed conflict, whether they are interned or detained”, and this specific mentioning of detained or interned persons is deemed to have tacitly envisaged the possibility of detention including for security reasons.Footnote 21 However, this line of argument is inherently flawed. The regulation of a particular measure by the law does not certainly imply that the law authorizes the recourse to such a measure.Footnote 22 Indeed, “it is routine for areas of law to regulate a practice without providing a source of authority for that practice”.Footnote 23 For instance, IHL mentions and regulates warfare, but this does not mean that IHL authorizes the conduct of war – the regulation of war lies in a different branch of international law, namely the jus ad bellum.Footnote 24 Likewise, in NIACs, detention occurs as a fact and is a common practice, and the regulation of the treatment of detainees by IHL does not lead to the conclusion that a belligerent State or a non-State armed group is authorized by the same to take such a measure.Footnote 25 If this was the case, the relevant rules would explicitly do so, but neither common Article 3 nor AP II clearly provides “who may be detained, on what grounds, in accordance with what procedures, or for how long”.Footnote 26
A seemingly more persuasive assertion can be found in the seminal work of Professor Ryan Goodman, who argued that
States have accepted more exacting obligations under IHL in international than in non-international armed conflicts. … [I]f States have authority to engage in particular practices in an international armed conflict [e.g. detention], they a fortiori possess the authority to undertake those practices in non-international conflict.Footnote 27
Hence, if IHL permits States to detain civilians on security grounds in IACs, it surely allows them to pursue the same in NIACs.Footnote 28 In the same sense, it is also contended that the power to detain may be considered to flow from, and is consistent with, “the practice of armed conflict and the logic of IHL that parties to a conflict may capture persons deemed to pose a serious security threat and that such persons may be interned as long as they continue to pose a threat”.Footnote 29 Relatedly, some specifically argue that the authority to detain, including for security reasons, is an implicit and intrinsic aspect of the power to target individuals in armed conflict.Footnote 30
These arguments appear to be convincing but are also not entirely accurate. To begin with the argument that the power to detain is implicit in the power to target, it is true that detention represents a less severe measure compared to targeting, a measure which the rules of both NIACs and IACs permit, when it comes to combatants and civilians directly participating in hostilities (DPH).Footnote 31 While it may be important to have the ability to target civilians who are DPH during NIACs, DPH itself is not a requirement to detain individuals on security grounds. In other words, to be a security threat is not synonymous with and, in fact, is broader than DPH. A person may be a security threat, and hence be subjected to detention, without directly or even indirectly participating in hostilities or engaging in activities that cause material and direct, actual or potential harm to a State and without violating the rules of IHL.Footnote 32 Precisely put, the two regimes of detention and targeting and the subjects they regulate are distinct and should not be conflated. The contention that the prerogative of States to target some specific individuals also gives them the authority to detain those individuals who may be considered to have threatened State security but have not directly participated in hostilities is thus not watertight. The related argument that, in the absence of a legal basis for detention, States may be encouraged to kill rather than detain individuals is also not that evident. The act of killing individuals in armed conflict does not much depend on a State's ability to detain them.
It is also difficult to agree with the assertion that States have a power to detain individuals in NIACs since they have the same power in IACs, where they assume more exacting obligations. The nature of the conflict and the parties involved in IACs and NIACs is completely different. The raison d’être behind the rules regulating NIAC and IAC, including those concerning detention, is also not the same. IACs usually occur between two or more States, and recognizing the authority of a belligerent State to detain individuals threatening its security is a natural consequence of the inherent sovereign right of that State to protect its territorial integrity, its political independence and the well-being of its population.
The recognition of the detention power of a State during IACs also has the element of reciprocal benefits for States: it guarantees to warring States that their citizens who might be detained by other belligerent States are treated humanely. In IACs, the basic assumption is that the belligerent States have the capacity and institutional ability to keep individuals in detention humanely and with dignity and have judicial or quasi-judicial mechanisms to redress possible arbitrary incarcerations. In contrast, such assumptions either do not exist or are qualified when it comes to NIACs. NIACs involve conflicts between States and non-State actors or between non-State actors, and the lack of an express authorization of detention is evidently a reflection of States’ aversion to any rules that may bestow a degree of recognition on the non-State actors. Of course, this does not necessarily suggest that States had the intention to restrict their own capacity to detain in NIACs.Footnote 33 Instead, they are well aware that they have other legal avenues that they may use, besides the rules of IHL, to detain individuals threatening their security, including domestic law. Therefore, the assertion that IHL offers the legal basis for detention in the contexts of NIACs needs to rest on an alternative reasoning with some legal scaffolding in treaty or customary law.
One alternative would be to draw a parallel rule from IACs where both treaty and customary IHL contain an inherent power to intern, and then to extrapolate this to NIACs and consider this “inherent power to intern” as a legal basis of internment in NIACs.Footnote 34 One can indeed find strong normative foundations for this view in customary international law. States have always engaged in detaining individuals threatening their security, whether in peacetime or in NIACs, and this has generally been accepted as lawful.Footnote 35 It may consequently be argued that the necessary elements of customary law – practice and opinio juris – exist, and hence there is a customary rule permitting detention in NIACs.
An additional legal source, which is often overlooked in the literature, can be found in Article 3 of AP II, which declares:
Nothing in this Protocol shall be invoked for the purpose of affecting the sovereignty of a State or the responsibility of the government, by all legitimate means, to maintain or re-establish law and order in the State or to defend the national unity and territorial integrity of the State [emphasis added].
In this provision, the formulation “all legitimate means” is couched in broad terms and encompasses a wide range of measures that States may adopt to protect their security. Although the provision does not mention examples of such measures, undoubtedly one can envisage security detention as forming part of “all legitimate means” necessary to maintain law and order and to safeguard national unity and territorial integrity, which are the traditional national security interests of States.Footnote 36
On these two grounds – namely, customary law and Article 3 of AP II – it may thus be concluded that IHL authorizes detention in NIACs and that, accordingly, States have the authority to detain individuals posing a threat to their security. It should nevertheless be noted that the formation of a rule of customary law is essentially State-centric, and Article 3 of AP II itself makes reference to States as the only entity permitted to use “all legitimate means” to maintain national security and public order. The same argument cannot therefore be advanced for the detention power of non-State actors. Indeed, the unwillingness of States to risk giving legitimacy to armed groups has often made States hesitant to acknowledge the detention power of non-State actors.Footnote 37 In NIACs, States rarely agree or even acquiesce to the de facto power of their adversaries to target or detain individuals. Given this, the validity of the argument that there is a customary rule of IHL granting detention power in NIACs is valid only with regard to States, and not to non-State armed groups. Some authors have attempted to develop a corresponding authority to detain for non-State armed groups on the basis of “equality of arms”, arguing that this would promote the coherent application of IHL for all parties to an armed conflict.Footnote 38 However, this lacks a strong normative foundation, at least as far as detention is concerned – in other words, there is a clear normative gap in the law.
Moving away from the debate on authorization versus regulation
The foregoing analysis and a large part of the scholarly works written on the subjectFootnote 39 clearly suggest that for the most part the debate on detention revolves around the issue of whether IHL authorizes or regulates detention in NIACs. As concluded in the preceding section, a close examination of the different arguments reveals that, as far as detention is carried out by States, the contention that IHL provides a legal basis for detention in NIACs has a firm ground in customary law and Article 3 of AP II; however, no similar normative rules authorize non-State armed groups to exercise the same power under either treaty or customary rules of international law. Notwithstanding this conclusion, one may still step back and raise two fundamental questions: first, is it even necessary for the protection of individuals in armed conflict situations that IHL provide rules which explicitly permit or proscribe detention; and second, if not, what alternative legal avenues are available for parties to NIACs to resort to measures of detention?
It is intuitively true that a clear and explicit rule permitting/proscribing detention in NIACs creates legal certainty. However, the enduring debate on whether IHL does or should expressly offer a legal basis for detention in NIACs is of little practical importance and may even be undesirable in light of the existence of other alternative legal avenues available for States to resort to measures of detention. What is more important for detainees is to focus on the conditions rather than the permissibility of detention.Footnote 40 The issue of permissibility of detention should be left to other rules such as the domestic law of States, UN Security Council resolutions, if any, and IHRL.Footnote 41 Of course, considering that these rules, particularly domestic laws and IHRL, are traditionally applied only by States and not by non-State actors, it may be apposite to clearly specify in the rules of IHL the basis under which detention may be conducted by non-State armed groups during NIACs. Nevertheless, as stated above, States are often unwilling to accept any rule suggesting that non-State armed groups have equal power to detain individuals. States may view acceptance of the authority to detain for non-State armed groups as sharing sovereign power with these armed groups and limiting their own ability to contain insurrection.Footnote 42 States are aware of the possibility of detention by non-State armed groups, but they do not want to give it any legal clout, as this may imply recognition of the legitimacy of those groups. The resistance of States to expressly acknowledging the detention power of non-State armed groups in the law is thus essentially a “framing” issue and not a denial of the occurrence of detention by non-State armed groups. As can clearly be inferred from the limited provisions that common Article 3 and AP II (Articles 4 and 5 in particular) provide, States prefer to bind themselves to rules that enhance respect for humane treatment of detainees, without giving the impression that non-State actors have equal power to detain.
To move in a direction that is palatable to States, the general debate on the issue should thus focus on the extent of material legal protection that IHL should provide for persons detained in NIACs, particularly concerning the procedural and substantive conditions of their detention, treatment during detention, and their transfer and release. The development of the law regulating NIACs should similarly aim at guaranteeing more humane treatment of detainees rather than focusing on authorizing or forbidding detention. The normative gap-filling effort should move towards developing rules governing NIACs that guarantee, at least, the same procedural and substantive humanitarian standards of treatment available in IHL for those detained in IACs, or in IHRL standards available for those individuals detained in the context of derogation from human rights norms.Footnote 43 The legal regime applicable in times of derogation from IHRL obligations is generally meant to regulate situations such as war, and the substantive and procedural guarantees available during derogations are minimum standards that are applicable in all contexts irrespective of the level or nature of crisis, including where a State is involved in a NIAC or IAC. Historically, the main reason why States have incorporated the various derogation provisions in regional and international human rights treaties is to overcome threats of armed conflict.Footnote 44
As far as security detention is concerned, it should be noted that the existing forms of security detention that are contemplated by the pertinent provisions in the various IHL treaties – namely pre-trial confinement, internment and assigned residence – are generally considered to be very serious measures with grave repercussions on the rights of individuals.Footnote 45 Hence, no other, more restrictive forms of security detention are allowed, regardless of the nature or degree of the security threat posed by such individuals.Footnote 46
Given its severe implications on the rights of individuals, security detention may be selectively imposed only when it is warranted by the circumstances. This is evidenced by the language of Article 42 of GC IV: “if the security of the Detaining Power makes it absolutely necessary”; and, in occupied territory, Article 78: “for imperative reasons of security”. These formulations indicate that security detention without trial is an exceptional measure, the imposition of which is acceptable only when circumstances are compelling.Footnote 47 The provisions are underpinned by the basic precept that the individual rights and freedoms of individuals should remain unimpaired unless a real threat to security demands restriction.Footnote 48
For the purposes of this article, the author will treat the rules of IHL applicable in IAC as customary rules applying also in NIAC unless otherwise stated. Furthermore, as there is no combatant status in IAC, the author will consider detainees in NIAC to be akin to “civilian internees” rather than PoWs. In the following section, an attempt is made to highlight some minimum conditions for security detention in IACs. In NIAC, similar rules are derived from treaty and customary rules of IHL, IHRL and the practice of domestic courts and international judicial institutions. It is significant to note that any future proposal to develop the law of NIACs governing security detention should be mindful of the “framing effect” of the rules and its possible impact on the response of States.
Conditions and limits of lawful security detention
While recognizing the power of a State in armed conflict to impose security detention on persons posing a threat to security, the law of war does not allow the general suspension of the right to liberty of victims of armed conflict for any alleged security threat. It only allows the restriction of liberty in very narrowly defined circumstances, and upon the fulfilment of certain conditions. These conditions place effective limits on the power of States to have recourse to security detention in times of war and could, as States deem fit, be applied to security detention occurring in both IACs and NIACs.
Nexus with the armed conflict
The first important condition for security detention in IHL is the requirement of nexus with the armed conflict. A State can impose security detention in accordance with IHL only when the security threat dictating such a measure is related to an armed conflict. A State cannot rely on IHL to subject individuals to security detention in order to deal with a threat that is not linked with the armed conflict, regardless of the impact of the threat on its security. This is simply because the material domain of application of IHL is restricted to armed conflict situations. Accordingly, someone may be interned only if his present or projected activities can be considered as part of or related to the war. This is the case if a civilian shoots a passing enemy soldier, plants a bomb in an enemy encampment, destroys communication facilities, attempts to liberate PoWs, intentionally misleads troops or performs other intelligence functions on behalf of the enemy. Generally, all “[s]ubversive activit[ies] carried on inside the territory of a Party to the conflict or actions which are of direct assistance to an enemy Power … threaten the security of a country”.Footnote 49
The seriousness of the threat and the existence of a reasonable suspicion
The seriousness of the threat is generally an important prerequisite to invoking the national security exceptions recognized by the IHL treaties. A security threat that serves as a basis for the detention of individuals in the context of armed conflict has to satisfy some minimum threshold of gravity; it should be of serious nature and the invocation of its existence should be adequately substantiated.Footnote 50 The detaining power should always demonstrate that there are “serious and legitimate reasons” to consider that the detainees may prejudice its security.Footnote 51 This was well articulated by Justice Barak, former president of the Israeli Supreme Court, in Ajuri v. IDF Commander. While examining the legality of assigned residence that the Israeli military commander imposed on some Palestinians in the occupied Palestinian territories for security reasons, Justice Barak stated:
What is the level of danger that justifies assigning a person's place of residence, and what is the likelihood thereof? The answer is that any degree of danger is insufficient. In view of the special nature of this measure, it may usually only be exercised if there exists administrative evidence that – even if inadmissible in a court of law – shows clearly and convincingly that if the measure of assigned residence is not adopted, there is reasonable possibility that he will present a real danger of harm to the security of the territory.Footnote 52
Security detention based on a mere suspicion or a non-existent threat, or even an insignificant contribution made to a credible threat, cannot therefore be justified.Footnote 53 Furthermore, in order to subject someone to preventive detention, it is, for instance, insufficient to show the existence of a tenuous connection of a detainee with a “terrorist” organization. Rather, a specific and individualized determination of the threat should be made on the basis of an individual's “connection and contribution to the organization … expressed in other ways that suffice to include him in the cycle of hostilities in its broad sense, such that his detention will be justified under the law”.Footnote 54 This requires that the threat which is the basis of his detention should be posed by the detainee himself.Footnote 55 As such, a security detention cannot be ordered, for instance, to deter others, for purposes of convenience to the detaining power, or to use an individual as a “bargaining chip” with the enemy, even if it might be thought that this would enhance national security.Footnote 56 Similarly, the internment of individuals cannot be carried out for the sole purpose of gathering intelligence information in a circumstance where a detainee himself poses no security threat.Footnote 57
The preventive nature of the measure
Security detention is inherently preventive in nature. The main purpose of security detention is only to address a present or prospective danger rather than to punish a previous unlawful act.Footnote 58 Security detention cannot be ordered to penalize a person for his/her past criminal deeds.Footnote 59 This clearly implies that even if an individual did in fact carry out acts which harmed the security of a State, he cannot be subjected to assigned residence or internment unless there is a real possibility that he will repeat such or similar acts.Footnote 60 It is plausibly argued that this is essentially because the need for security detention “stems, inter alia, from the difficulty in finding a response within criminal law to certain threats to national security”.Footnote 61 If the danger is a past event, the criminal justice system, rather than preventive detention, becomes the most apt means to deal with it.Footnote 62 For preventive detention to be sustained, there must therefore be a continuing threat.Footnote 63 Also, if a person has already been preventively detained, interned or subjected to assigned residence without a criminal charge, he should be released “as soon as the reasons which necessitated his internment no longer exist”Footnote 64 and in any case “as soon as possible after the close of hostilities”.Footnote 65 The only exception is if the detainee is accused or convicted of crimes or has violated disciplinary rules.Footnote 66
The requirements of absolute necessity and imperativeness
The standards of absolute necessity and imperativeness in Articles 42 and 78 of GC IV also constitute important safeguards.Footnote 67 In order to legitimately impose security detention, States should demonstrate that there is a material and temporal necessity that demands the detention of individuals without trial. It also has to be shown that there is a rational connection (“rational means test”) between the security detention and the danger which is sought to be averted; that security detention is the least restrictive means available to deal with such danger (“least injurious means test”); and that the protection of the national security interest at stake is worthy of its cost – i.e., the deprivation of liberty resulting from the security detention (“proportionality in the narrower sense”).Footnote 68 In this vein, it is rightly contended that the institution of security detention is only
designed to prevent and frustrate a security danger that arises from the acts that [a detainee] may perpetrate and which may not reasonably be prevented by adopting regular legal measures (a criminal proceeding) or by an administrative measure that is less severe from the viewpoint of its consequences (for the purpose of reaching conclusions from past acts with regard to future danger).Footnote 69
It should further be mentioned that the mere fact that armed hostilities exist for a prolonged period of time “cannot justify the extended detention or internment of civilians; their detention is only justified as long as security concerns strictly require it”.Footnote 70
A higher threshold of necessity and a stricter standard of proportionality for internment and assigned residence in human rights law
As implied in the terms “absolute” and “imperative” under Articles 42 and 78 of GC IV, the serious nature of internment and assigned residence requires a higher degree of necessity and proportionality than ordinary cases of necessity recognized in IHRL or the essentiality standard under Article 103 of GC III for pretrial confinement of PoWs.Footnote 71 Although a precise threshold of necessity is difficult to draw, and is likely to depend on the circumstances, security detention in armed conflict presupposes the existence of a more exacting standard of necessity than in peacetime.
Given that armed conflict is the gravest security threat that might require States to adopt more exceptional and severe measures in contrast to any other security threat in peacetime, this interpretation may appear illogical, the reason being that the State should have more flexibility during war than in peacetime. Yet there is also a greater potential for abuse in armed conflict than in a peacetime situation. It is thus plausible and desirable to place a stricter standard of necessity in contexts of armed conflict.
Note, however, that even if there is no such explicit requirement under Article 9 of the International Covenant on Civil and Political Rights (ICCPR), the UN Human Rights Committee (HRC) has adopted the same standard of “absolute necessity” for security detention in a peacetime context.Footnote 72 If this is taken as the prevailing norm, there is therefore no difference in the required threshold of necessity between armed conflict situations and peacetime, and security detention shall be imposed only to the extent that it remains absolutely necessary.
Occupied territories: A particularly compelling standard of necessity
It is argued that the standard of necessity which is required to subject individuals to measures of assigned residence or internment becomes even more strict in occupied territories. According to Pictet:
In occupied territories the internment of protected persons should be even more exceptional than it is inside the territory of the Parties to the conflict; for in the former case the question of nationality does not arise. That is why Article 78 speaks of imperative reasons of security; there can be no question of taking collective measures: each case must be decided separately. … [The] exceptional character [of internment and assigned residence] must be preserved.Footnote 73
This more restrictive approach towards the authority of the occupying power to detain in occupied territories for security reasons is warranted by the nature of occupation itself. Military occupation is presumed to be a temporary phenomenon, and military administration is normally thought to be an unavoidable outcome of military necessity rather than a system designed to fulfil a zeal for annexation of the territory of the enemy, or to have full political control over persons found therein.Footnote 74 Because of this lack of sovereign power over both the territory and the people, the military must demonstrate a truly compelling necessity to intern civilians in an occupied territory, more than would be required of a detaining power in its own territory. As will be illustrated below, the occupying power is also required to institute a regular procedure to determine whether someone should be interned or assigned to a particular area of residence.
Prohibition of security detention as a collective measure
IHRL does not allow the imposition of security detention in the absence of an individual evaluation of a person's particular level of security threat.Footnote 75 The same rule applies to security detainees during an armed conflict. This is a direct and logical consequence of the rule that was stated earlier – i.e., that individuals shall be the subject of security detention only when they personally pose a security threat. A belligerent State cannot lawfully intern or place in assigned residence protected persons en masse, without thoroughly examining the case of each and every internee. Preventive detention, whether in occupied or a State's own territory, shall not be used as a collective punishment applicable indiscriminately to all individuals without consideration of the nature or level of threat that each detainee has posed.Footnote 76 Obviously, in order to conduct such an evaluation, detainees need to have the rights and procedural guarantees that enable them to contest the legality of their detention. This directly leads us to the next section, which discusses the procedural guarantees that international law provides for persons subjected to security detention.
Procedural safeguards against arbitrary detention
The relevant rules of IHRL provide various procedural and substantive guarantees against arbitrary detention, including the right of habeas corpus, the right to be promptly informed of the reasons of detention, access to a lawyer, and the right to periodic review of the necessity for continued detention, in cases of security detention.Footnote 77 As IHRL continues to apply during armed conflict situations, these guarantees should in principle apply as well. However, because IHRL allows derogation from, or at least the modification of, some of these guarantees during emergency situations (the most typical example of which being armed conflict), States have been invoking this derogation regime in order to deprive detainees of the necessary procedural guarantees.Footnote 78 There is therefore a need to determine whether these safeguards are derogable in armed conflict situations or continue to apply despite the fact that derogations may have been made in accordance with the applicable rules of IHRL.
The relevant rules of IHL expressly ordain that detainees who are subjected to internment or assigned residence shall be accorded some of the most important procedural safeguards against arbitrary detention.Footnote 79 What makes this prescription, as opposed to the same rule in IHRL, different is that States cannot derogate from it.Footnote 80 IHL provides minimum humanitarian guarantees already taking into consideration both military necessity and the associated emergency that States normally face during armed conflicts.Footnote 81 Therefore, no reason of national security or emergency justifies the suspension of these safeguards except in the manner provided by the same law itself.Footnote 82 Below are some other procedural safeguards against arbitrary detentions applicable in situations of armed conflict which security detainees may also benefit from.
The requirement of a “regular procedure”
In occupied territories, Article 78 of GC IV provides that the decision to intern or assign residence “shall be made according to a regular procedure to be prescribed by the Occupying Power”. This refers to the initial decision to detain and is distinct from the examination of the legality of the detention at a later stage. There is no explanation in the Convention as to what the requirement of “regular procedure” signifies. It has been asserted that this requirement suggests that the internee should have a chance to be heard and that, for this purpose, the State is also obliged “to establish procedures permitting the examination of the internment measures”.Footnote 83
There is no corresponding requirement in a State's own territory,Footnote 84 or in common Article 3 or the provisions of AP II applicable to situations of NIAC. Thus, the nature and manner of the decision to detain in a State's own territory during IACs and NIACs likely depends on domestic legislation and the circumstances of the capture. The commonly accepted principle existing in the domestic laws of many countries is that detention (particularly where it extends more than forty-eight hours) should be authorized by a judge, unless this is not possible due to the circumstances prevailing at the time the decision is made.Footnote 85 In times of war, whether IAC or NIAC, it may not be possible to secure an arrest warrant using the usual judicial procedure. Nevertheless, the power which issues the preventive detention order, whether judicial or administrative, should have procedures to verify the existence of a good cause – notably, the existence of a direct, imperative and imminent security threat – that necessitates immediate arrest and detention.Footnote 86
The right of habeas corpus
In addition to the requirement of “regular procedure” for the initial detention order, Article 78 of GC IV further demands that there shall be an appellate procedure to which detainees may have recourse to challenge the validity of the decision to detain them. This reflects the right of habeas corpus, which is also recognized under Article 43 of GC IV, applied in a State's own territory. The provision proclaims that “[a]ny protected person who has been interned or placed in assigned residence shall be entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose”. In the recent War on Terror, although it has been consistently contested that such a right is not applicable for so-called “unlawful combatants”, it seems now beyond contention that the right of habeas corpus applies to all civilian internees, whether they are designated as unlawful or enemy combatants or whether they find themselves in their own or occupied territories.Footnote 87 In view of this, persons detained in armed conflicts on security grounds, like all persons detained for any reason, enjoy the right to have their detention considered as soon as possible by a judicial or quasi-judicial organ.Footnote 88 This organ shall employ a due process that properly balances the right to liberty of the detainee and the security interests of the detaining power, taking into account the possibility of erroneous assessments of the detainee's level of risk in the uncertain and challenging moments of armed conflict.Footnote 89
It should be noted that the right of habeas corpus is not expressly provided in the rules of IHL regulating NIACs. However, the rule is found in the domestic law of most States in the world,Footnote 90 and except the African Charter, all other regional human rights treaties and numerous conventions have given it explicit recognition.Footnote 91 Even in the African system, the African Commission on Human and Peoples’ Rights (ACHPR) has found such a right to exist through a combined reading of Articles 6 and 7 of its Charter.Footnote 92 On various occasions, the ACHPR has noted that “judicial bodies shall at all times hear and act upon petitions for habeas corpus … or similar procedures. No circumstances whatever must be invoked as a justification for denying the right to habeas corpus.’’Footnote 93 The ACHPR does not as such accept any reasons, including security justifications or invocation of armed conflict, to deny or unreasonably delay a detainee from exercising his right to habeas corpus.Footnote 94 Similarly, its American counterpart, the Inter-American Commission on Human Rights (IACHR), has repeatedly affirmed that the writ of habeas corpus is a non-derogable norm and that even a state of emergency or the severest form of national security threat, including armed conflict, cannot justify its suspension or render it ineffective.Footnote 95 The European Court of Human Rights, on the other hand, has consistently stressed that the existence of national security threats such as terrorism does not provide States with carte blanche “to arrest suspects for questioning, free from effective control by the domestic courts and, ultimately, by the Convention supervisory institutions”.Footnote 96 Correspondingly, the UN HRC has observed that the fact that an individual is detained as part of a security measure does not deprive him of his right to challenge the lawfulness of his detention, and that any law which denies the right to habeas corpus for security detainees violates Article 9(4) of the ICCPR.Footnote 97 It can therefore be concluded that, as a non-derogable norm, the right of habeas corpus applies not only in IACs but also to those persons detained for security reasons in situations of NIAC.
Initial review
In contrast to the rule of habeas corpus in IHRL that requires detention to be examined by an appropriate judicial body,Footnote 98 Article 43 of GC IV allows review by not only a court but also an administrative board. In occupied territories, Article 78 of GC IV contemplates that the review could be made by “a competent body set up by the [Occupying] Power”. Given that occupation is enforced by military administration, it is understandable that the occupying power is given the chance to set up a competent body rather than a formal court. It is argued that the purpose of providing two alternatives under IHL is to allow warring States to have some flexibility.Footnote 99
Accordingly, IHL clearly but partially departs from IHRL as regards the nature of the review body. This difference highlights that “the two bodies of law have distinct presumptions about the context of detention”; one assumes peacetime, wherein the ordinary judiciary is presumably well-functioning, and the other is concerned with an armed conflict context in which an administrative board may be better suited to cope with the emergency pressure engendered by the conflict or to substitute for a deficient or non-functioning judiciary.Footnote 100 Yet, it is convincingly asserted that the review board in a State's own territory or the “competent body” in an occupied territory should ensure at least the appropriate guarantees that a formal court would offer, including the necessary safeguards of independence and impartiality.Footnote 101 Such a body must also have the power to order the release of detainees whose detention is found to be “inspired by other considerations than those of security”.Footnote 102 The fact that Article 43 of GC IV uses the disjunctive term “or” to place an administrative board as an alternative option and on an equal footing with a court strengthens the construction that the board or the competent authority should exhibit some basic attributes of a formal court.
Articles 43 and 78 of GC IV apply only to situations of IACs, and the question as to the nature of the review body in NIACs inevitably arises. One alternative would be to adopt the standard from IHRL that the review body should be judicial. In NIACs, however, availing a judicial body for all security detainees may not be possible in some situations – for example, if because of a protracted conflict, the ordinary courts of a country are dysfunctional in some or all parts of the country, or if the conflict takes place overseas with a non-State armed group and establishing a judicial body is not practically feasible. The same flexibility that States require to be able to decide on the nature of the review body in IACs is also needed during NIACs, and therefore, the same possibility of instituting an “appropriate court or administrative board” should be available in the context of NIACs to allow security detainees to challenge the legality of their detention.
Periodic review
Both Article 43 and Article 78 of GC IV require that the decision on internment or assigned residence shall, in addition to the initial review made by a court, administrative board or competent authority, be controlled by a periodic review. The same safeguard is also recognized in IHRL, and the regular review helps to monitor that the continued detention is not arbitrary and remains necessary under the changing circumstances.Footnote 103 Periodic review obliges and enables “the responsible authorities … to take into account the progress of events … and changes as a result of which it may be found that the continuing internment or assigned residence of the person concerned are no longer justified”.Footnote 104 This helps to ensure compliance with “the fundamental consideration that no civilian should be kept in assigned residence or in an internment camp for a longer time than the security of the detaining party absolutely demands”.Footnote 105
However, distinct from IHRL, which simply requires “sufficiently frequent and reasonable” review,Footnote 106 Article 43 of GC IV specifies a clear time for the frequency of the review. The court or administrative board should examine the validity of the internment or the assigned residence at least twice a year. In occupied territory, by contrast, the occupying power is only required to provide a periodic review “if possible every six months”. The six-month limit is aspirational and, thus, review may be carried out within a reasonable interval even longer than six months depending on the circumstances.
It shall further be emphasized that “unlike the procedure for the initial appeal” described above, “which only takes place at the request of the person concerned, the periodical reconsiderations [under Articles 43 and 78 of GC IV] will be automatic once a protected person has made his first application to the responsible authority”.Footnote 107 In the opinion of the Israeli Supreme Court:
Judicial review is not “external” to the detention. It is an inseparable part of the development of the detention itself. At the basis of this approach lies a constitutional perspective which considers judicial review of detention proceedings essential for the protection of individual liberty. Thus, the detainee need not “appeal” his detention before a judge. Appearing before a judge is an “internal” part of the dentition process. The judge does not ask himself whether a reasonable police officer would have been permitted to carry out the detention. The judge asks himself whether, in his opinion, there are sufficient investigative materials to support the continuation of the detention.Footnote 108
As such, the detaining or occupying power is, ex proprio motu, bound to automatically review the decision to detain after the first petition for reconsideration is made by the detainee.Footnote 109
Intervention by the protecting power
Article 43 of GC IV also provides an additional safeguard against arbitrary security detention. Save in cases where the detainees object, the detaining power is obliged to communicate to the protecting power, as rapidly as possible, the names of all detainees who are subjected to internment or assigned residence, including those who are released. In addition, the outcome of the initial or subsequent review of the detention by the courts or boards should be relayed to the same as rapidly as possible.Footnote 110 This enables the home authorities on whom the detainees depend “to form an exact picture of the position of the majority of their nationals who have remained in the territory of the adverse Party and to inform their families”.Footnote 111 It is, thus, a mechanism to ensure that detainees have contact with the outside world.Footnote 112
It should further be appreciated that Article 143 of GC IV also establishes for protecting powers a right to visit places of detention and internment. The provision requires that protecting powers, as well as the delegates of the ICRC, shall be given “access to all premises occupied by protected persons and shall be able to interview the latter without witnesses, personally or through an interpreter”. This access may only be exceptionally and temporarily restricted (postponed, but never entirely denied) for imperative military necessity.Footnote 113 Once access is permitted, the duration or frequency of the visit should not be subject to any hindrance.Footnote 114 This should be considered as another safeguard against arbitrary detention.
Additional safeguards
In addition to the aforementioned procedural guarantees, IHL provides for other safeguards against arbitrary security detention during armed conflict. These include the right of internees to be promptly informed of the reasons of their detention,Footnote 115 the right of access to a lawyer (subject to security arrangements) and the right to be visited by international supervisory institutions, particularly the ICRC.Footnote 116 Further, security detainees must always be humanely treated and may in no circumstances be subject to inhuman and degrading treatment, torture or violence to their life, health, or physical or mental well-being, or be taken as hostages or subjected to public curiosity.Footnote 117 Detention conditions must not compromise the dignity and health of detainees. The detaining or occupying power is obliged to fulfil the “minimum needs of the ordinary individual”Footnote 118 such as food and clothing,Footnote 119 hygiene and medical care,Footnote 120 and an opportunity to perform religious and physical activities.Footnote 121 As was elaborated by the Israeli Supreme Court in HaMoked et al. v. Commander of the Israel Defence Force, where the applicants (security detainees) alleged that they were deprived of food and beds for security reasons:
while certain fundamental rights are balanced by conflicting interests, there is a bottom line that cannot be crossed, at which the rights become absolute, or almost absolute. This is the line that we reach regarding minimum detention conditions, in which the detainee is denied his humanity if they are not met. But not only the humanity of the detainee is denied; the keeper also loses it. … Therefore, the detaining authority is not allowed – under any conditions – to infringe these rights, and they are given to the detainee absolutely.
… [I]t is inconceivable that reasons depending on security considerations … will justify, for example, provision of food that is extremely poor in quantity and quality, or the failure to supply a bed … to sleep on at night; or justify use of physical violence and humiliation against the detainees, and so forth. Security-based grounds have their place, but, in all due respect, they cannot justify such grave infringement of such fundamental and elementary rights belonging to detainees and prisoners.Footnote 122
Although IHL does not explicitly proscribe indefinite, incommunicado or secret detentions (so long as the protecting power is informed), both IHRL and the judgments of some domestic courts clearly suggest that no exceptional circumstances whatsoever justify an indefinite, secret or prolonged detention of individuals, including in the context of armed conflict.Footnote 123 These forms of detention are also likely to contravene the foregoing guarantees, particularly the prohibition against inhuman and degrading treatment or torture.Footnote 124
Prohibition of refoulement, mass expulsion and transfer
Article 45 of GC IV encapsulates the principle of non-refoulement by proclaiming, “In no circumstances shall a protected person be transferred to a country where he or she may have reason to fear persecution for his or her political opinions or religious beliefs” (emphasis added). This applies for all protected persons whether they are in detention or not.Footnote 125 In comparison to the same rule in IHRL,Footnote 126 the prohibition against removal is absolute under Article 45 of GC IV.Footnote 127 The prohibition applies to any form of removal of detainees to all places, whether or not they risk being subjected to torture and ill-treatment.Footnote 128
Note also that IHL further prohibits “[i]ndividual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not …, regardless of their motive”.Footnote 129 This provision is an additional safeguard for security detainees in occupied territories. The fact that individuals are detained for national security reasons is irrelevant and thus, forcible transfers remain illegal even when an occupying power may invoke reasons of security.Footnote 130 This is accentuated by the terms of Article 78 of GC IV itself, which categorically states that assigned residence and internment are measures that an occupying power may “at most” take for imperative reasons of security.
Even though Article 49 of GC IV recognizes a narrow exception when “the security of the population or imperative military reasons so demand”, this exception refers only to emergency evacuationsFootnote 131 and as such should not be more broadly applied to include a wider national security exception.Footnote 132 In this sense, the ACHPR, in Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v. Sudan, observed that the evictions of the population from Darfur villages during the Darfur war could not be justified by “collective security”, a term used in Article 27(2) of the African Charter on Human and Peoples’ Rights and interpreted to encompass the notion of national security.Footnote 133 According to the ACHPR, “[f]or such reasons to be justifiable, the Darfurian population should have benefited from the collective security envisage[d] under Article 27.2” of the African Charter.Footnote 134 Although the ACHPR did not make reference to Article 49 of GC IV, it clearly – and rightly – suggested that the collective security justification cannot be invoked to license forced evictions. The “security of the population” exception under Article 49 of GC IV should accordingly be interpreted to allow temporary evacuation from the occupied territory if and only if this is important to the safety of the population, including security detainees.Footnote 135 In any event, individuals who are considered to have threatened security in the occupied territory should not be interned or assigned residence outside the occupied territory.Footnote 136
Conclusions
Armed conflict symbolizes one of the most traditional threats to national security. During armed conflict, international law allows States to take a plethora of measures, ranging from the right to wage war in self-defence to restrictions on the rights and freedoms of individuals. Security or preventive detention of individuals is among such lawful measures that States may use during armed conflicts to protect themselves from activities prejudicial to their security. While the legality of such measures remains uncontested during IACs, the absence of an explicit rule permitting or authorizing (security) detention in NIACs has been a source of continuous debate among practitioners and scholars. In this paper, on the basis of customary international law and Article 3 of AP II, it is argued that IHL in fact offers a legal basis for security detention in NIACs, when it is carried out by States. However, nowhere in the rules of IHL can be found a similar legal support for the detention power of non-State armed groups, and to this extent there is still a clear normative gap in the law.
Besides, it has also been observed that the rules of IHL regulating detention during NIACs and, even partly, during IACs are not robust in the sense that the safeguards against arbitrariness are either incomplete or not detailed. In order to fill this normative gap, it is suggested that specifically for NIACs, efforts aimed at the development of the law should move away from the mere issue of authorization versus prohibition of detention. Rather, the focus should be on promoting and expanding the substantive legal protection of detainees. This resolves the “framing problem” impeding States, and allows them to avoid accepting rules that clearly acknowledge the detention power of non-State armed groups, which they may perceive as a compromise to their sovereignty.
In this paper, it is further noted that the prerogative of States in armed conflicts to subject individuals to security detention is circumscribed both by substantive and procedural safeguards against arbitrariness. These safeguards are derived from both the customary and treaty rules of IHL, IHRL, the practice of international and domestic courts and the legal positions of the ICRC. Accordingly, appropriate considerations should be paid to these safeguards in developing the law of NIACs and expanding the existing rules regulating detention in IACs. Among those substantive and procedural limitations identified in this paper are the standards of necessity and proportionality, which require that security detention be warranted by the circumstances throughout its duration and be proportional to the security interest sought to be achieved. The requirement of temporality also demands that security detention cannot be enforced indefinitely.
Security detention is inherently preventive and, accordingly, cannot be imposed to punish past criminal activities; it may only be imposed to deal with present or future imminent and serious threats jeopardizing the critical interests of a State or one of its components (its territory, sovereignty, government and democratic institutions, or population as a whole).
Furthermore, individuals can be a subject of preventive detention only on the basis of the level of the security threat that they personally pose to the critical interests of the State. In armed conflict situations, security detention should not be ordered on, e.g., all enemy aliens or simply to deter other persons regardless of the security threat caused by the detainees individually. It should always be established that security detainees have personally engendered the security threat by their conduct, such as spying, sabotage or any other act that diminishes the fighting capacity of the detaining State in the war.
IHL also strictly prohibits the refoulement of protected persons to places where they may risk persecution on the basis of their political opinions or religious beliefs. Further, mass transfer of protected persons is proscribed in times of occupation. These prohibitive norms are absolute and cannot be derogated in the name of protecting national security. Consequently, security detainees should not be refouled to areas where they face persecution, and may only be transferred en masse from occupied territories to another territory if this is to protect their personal safety or security and the transfer is made temporarily.
Both IHL and IHRL also forbid torture and inhuman or degrading treatment. The preservation of national security may not be used to justify torture of detainees or subjecting them to treatment that may be inhuman or degrading, irrespective of the seriousness of the danger they pose. In order for security detention to remain lawful, detainees should further be able to enjoy procedural rights, such as the right of habeas corpus. Their detention must be reviewed periodically, and protecting powers, as well as the ICRC, should have access to places of internment.
The principles of good faith and strict interpretation put additional constraints on the prerogative of States to invoke or enforce national security exceptions in order to engage in security detention. In this regard, during the draft discussions of the 1949 Geneva Conventions, various delegates noted that the effectiveness of the rules of IHL will depend on the will of the contracting parties and, as such, the security exceptions shall be interpreted and applied in good faith.Footnote 137 It is also a general rule of interpretation that exceptions shall be construed and enforced narrowly.Footnote 138 The exception must be interpreted and applied restrictively.Footnote 139 The principle of restrictive interpretation is very important, not only because national security exceptions are amenable for expansive interpretation, but also because these exceptions are not intended to guarantee complete security in its abstract sense. Security is not an absolute, but a relative degree of safety.Footnote 140 In the context of armed conflicts, it is inconceivable to ensure absolute security.Footnote 141 There is always some insecurity that States assume during war – for that matter, even in time of peace, States cannot guarantee absolute security. Emerson has eloquently stated that true national security
cannot be a search for total security. That is only achievable in a police State, and then only temporarily. National security in a democratic society involves taking some risks and allowing some flexibility. It entails faith that an open community is better prepared to adjust to changing conditions than a closed one. It is based upon the proposition that the creation of economic, political, and social institutions that respond to the needs of the people is a better protection than implacable enforcement of sedition laws, loyalty programs, and regulations classifying information as secret.Footnote 142
Indeed, it is also the unattainability of absolute security that prevents security from being the usual “prime value”, and this is why it ought not always and “necessarily trump other values such as [individual] liberty”.Footnote 143 Accordingly, security detention is not and should not be meant to allay all concerns of insecurity, but only those grave ones threatening the critical existential elements of a State. The exceptions permitting security detention should, thus, be applied to address only those serious threats mounted against the most important national interests of a State.
