IHRL and Detention

ATHA SPECIALIZED TRAINING ON

HUMAN RIGHTS AND ARMED CONFLICT

Stockholm, SwedenJune 2010

Non-international armed conflicts: “internationalized”

Marko Milanovic, May 2010: “[T]here are in my view only two possible scenarios of the internationalization of prima facie NIACs involving a state and a non-state actor:

(i) State A intervenes into an internal conflict in state B, in support of the non-state actor and against state B. This is the Bosnian scenario, where Serbia and Croatia supported the Bosnian Serbs and Croats against the internationally recognized government of Bosnia. This is likewise the scenario of the coalition attack on Afghanistan post 9/11, when they acted jointly with the Northern Alliance against the Taliban who were then the de facto government of Afghanistan, before the new government of Afghanistan was set up.(ii)  State A attacks a non-state actor located in state B, without B’s consent. This is the scenario of the 2006 Israel-Hezbollah conflict in Lebanon (…).”

U.S. Army/Marine Corps COIN Manual (2007)

“Regardless of the precise legal status of those persons captured, detained, or otherwise held in custody by U.S. forces, they must receive humane treatment until properly released. They also must be provided the minimum protections of the Geneva Conventions. Specially trained, organized, and equipped military police units in adequately designed and resourced facilities should accomplish prolonged detention. Such detention must follow (…) detailed standards (…).” (para. D-20, p. 354)

“There are certain conditions under which U.S. forces may not transfer the custody of detainees to the host nation or any other foreign government. U.S. forces retain custody if they have substantial grounds to believe that the detainees would be in danger in the custody of others. Such danger could include being subjected to torture or inhumane treatment.” (para. D-21), p. 355)

U.S. Army/Marine Corps COIN Manual (2007)

“Treat detainees professionally and publicize their treatment. Arrange for host-nation leaders to visit and tour your detention facility. Consider allowing them to speak to detainees and eat the same food detainees receive. If news media or host-nation government representatives visit your detention facility, allow them as much access as prudent. Provide a guided tour and explain your procedures.” (Table 5-1, “Considerations for developing the information operations LLO,” p. 162)

Law applicable to Canadian forces in AfghanistanAmnesty International Canada v. Canada (Attorney General)

(2008)“[W]hile detainees held by the Canadian Forces in Afghanistan have the rights accorded to them under the Afghan Constitution and by international law, and, in particular, by international humanitarian law, they do not have rights under the Canadian Charter of Rights and Freedoms.” (para. 3)

“Whatever its appeal may be, however, the practical result of applying such a ‘control of the person’ based test would be problematic in the context of a multinational military effort such as the one in which Canada is currently involved in Afghanistan. Indeed, it would result in a patchwork of different national legal norms applying in relation to detained Afghan citizens in different parts of Afghanistan, on a purely random-chance basis.” (para. 274)

“That is, an Afghan insurgent detained by members of the Canadian Forces in Kandahar province could end up having entirely different rights than would Afghan insurgents detained by soldiers from other NATO partner countries, in other parts of Afghanistan. The result would be a hodgepodge of different foreign legal systems being imposed within the territory of a state whose sovereignty the international community has pledged to uphold.” (para. 275)

Canadian Detention Policies and Practices

Richard Colvin, Canadian Diplomat, Testimony before the Special Committee on the Canadian Mission in Afghanistan, November 2009:

“What was the nature of our detainee system in Kandahar? Perhaps a good place to start is to compare our practices to those of our principal NATO allies in southern Afghanistan: the United Kingdom and the Netherlands. What we were doing differed in five crucial respects.“First, we took and transferred far more detainees. (…)Second, we did not monitor our own detainees after their transfer. (…)The third important difference is that, again unlike the Dutch and British, Canada was extremely slow to inform the Red Cross when we had transferred a detainee to the Afghans. (…)During those crucial first days, what happened to our detainees? According to a number of reliable sources, they were tortured [by Afghan interrogators]. (…)The final difference, which is a very important one, is that Canada, unlike the U.K. and the Netherlands, cloaked our detainee practices in extreme secrecy. (…)”

U.S. Detention Policies and Cases US Government filing, US District Court, March 2009

“The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.”

Maqaleh v. Gates (D.C. Cir., May 21, 2010)“[T]he jurisdiction of the courts to afford the right to habeas relief and the protection of the Suspension Clause does not extend to aliens held in Executive detention in the Bagram detention facility in the Afghan theater of war.”

Al-Skeini [2004] E.W.H.C. 2911

“In the circumstances [of Mr. Mousa’s death] the burden lies on the British military prison authorities to explain how he came to lose his life while in British custody. It seems to us that it is not at all straining the examples of extra-territorial jurisdiction discussed in the jurisprudence considered above to hold that a British military prison, operating in Iraq with the consent of the Iraqi sovereign authorities, and containing arrested suspects, falls within even a narrowly limited exception exemplified by embassies, consulates, vessels and aircraft, and in the case of Hess v. United Kingdom, a prison.” (para. 287)

Al-Skeini [2007] UKHL 26

Baroness Hale (para. 88): “In common with Lord Rodger, I can find nothing in the [Human Rights] Act which indicates that section 6 should not apply to Mr Mousa’s case and several good reasons why it should. In particular, it has many times been said that the object of the Human Rights Act was to give people who would be entitled to a remedy against the United Kingdom in the European Court of Human Rights in Strasbourg a remedy against the relevant public authority in the courts of this country. The United Kingdom now accepts that it would be answerable in Strasbourg for the conduct of the British army while Mr Mousa was detained in a British detention unit in Basra. It would be consistent with the purpose of the Act to give his father a remedy against the army in the courts of this country.”

Dutch Detention Policies and Practices

Retired Dutch General Dick Berlijn discussing Dutch detention policies and practices in Afghanistan, December 2009:

“We all had our doubts whether, let’s say, the standards for treating prisoners would be the same with the Afghan authorities as what we deem proper in the West (…). We’ve all heard stories that sometimes the prisoners in Afghan prisons were not treated all that well.”“I'm not sure if those were real reports [of people being killed in Afghan detention] but we understood that was the kind of world we were working in and that's why we took those precautions (…). We did not want to, let’s say, make it easy on ourselves by saying ‘Well, we handed them off to the Afghan authorities, it's no longer our business.’ That was not the case. We understood we had a responsibility there.”“We had arrangements where our embassy people and also the Red Cross were able to visit the prisoners once they were transferred to the Afghans to make sure they were not tortured or being maltreated.”

Application of IHRL in armed conflict

I.C.J., Advisory Opinion, 2004 (cf. I.C.J., Congo v. Uganda, 2005):

“(…) [T]he protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation of the kind to be found in Article 4 of the International Covenant on Civil and Political Rights. As regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law.”

UN Human Rights Committee, General Comment 31, 2004, para. 11:

“(…) [T]he [ICCPR] applies also in situations of armed conflict to which the rules of international humanitarian law are applicable. While, in respect of certain Covenant rights, more specific rules of international humanitarian law may be specially relevant for the purposes of the interpretation of Covenant rights, both spheres of law are complementary, not mutually exclusive.”

IHRL and IHL: Detainees

AP I, Art. 72: “The provisions of this Section [“Treatment of persons in the

power of a party to the conflict”] are additional to the rules concerning humanitarian protection of civilians and civilian objects in the power of a Party to the conflict contained in the Fourth Convention, particularly Parts I and III thereof, as well as to other applicable rules of international law relating to the protection of fundamental human rights during international armed conflict” Allows recourse to human rights law as an additional frame of

reference in regulating the rights of internees, who belong to “persons in the power of a party to the conflict”

AP I, Art. 75(1): Stipulates that persons falling within its scope shall enjoy the protection provided for by this article “as a minimum” When read in conjunction with Article 72, the “minimum”

mentioned may be supplemented by other provisions of humanitarian and human rights law

Authorizing and regulating detention: International armed conflictGC III, Art. 21

“The Detaining Power may subject prisoners of war to internment.”

GC IV, Art. 42“The internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary. (…)”

GC IV, Art. 78“If the Occupying Power considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may, at the most, subject them to assigned residence or to internment. (…)”

In IAC, an interned person has the right to submit a request for review of the decision on internment, the review may be conducted either by a court or an administrative board, and periodic review is thereafter to be automatic, on a six-month basis.

Authorizing and regulating detention: Non-international armed conflictTreaty law

Common Article 3 No provisions regulating internment, apart

from the humane treatment requirement

AP II Art. 5 (Persons whose liberty has been

restricted) Art. 6 (Penal prosecutions)

Customary law Martens clause

ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, 2007, p. 11:

Common Article 3 and Additional Protocol II “provide no further guidance on what procedure is to be applied in cases of internment . . .[thus] the gap must be filled by reference to applicable human rights law and domestic law, given that IHL rules applicable in non-international armed conflicts constitute a safety net that is supplemented by the provisions of these bodies of law.”

Marco Sassóli, “Query: Is There a Status of ‘Unlawful Combatant’?” in International Law Studies, Issues in International Law and Military Operations, ed. Richard B. Jaques (2006):

“In such (non-international) conflicts, IHL cannot possibly be seen as providing a sufficient legal basis for detaining anyone. It simply provides for guarantees of humane treatment and, in prosecutions for criminal offenses, for certain judicial guarantees of independence and impartiality. Possible bases for arrest, detention or internment are entirely governed by domestic legislation and the human rights law requirement that no one be deprived of his or her liberty except on such grounds and in accordance with procedures as are established by law. In State practice too, governments confronted by non-international armed conflicts base arrests, detentions, and internment of rebels, including rebel fighters, either on domestic criminal law or on special security legislation introduced during the conflict. They never invoke the ‘law of war.’”

Authorizing and regulating detention: Non-international armed conflict (continued)

Human rights law: detention

ICCPR, Art. 9:“1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful. (…)”

ICCPR, Art. 9 (continued)

Derogation Art. 4(1) allows for derogation “[i]n time of public

emergency which threatens the life of the nation and the existence of which is officially proclaimed” but only “to the extent strictly required by the exigencies of the situation” and so long as measures aren’t inconsistent with other international law obligations and aren’t discriminatory

Art. 9 not listed as a non-derogable right. However…

UN Human Rights Committee, General Comment 29, 2001, para. 11:“(…) States parties may in no circumstances invoke article 4 of the Covenant as justification for acting in violation of humanitarian law or peremptory norms of international law, for instance (…) through arbitrary deprivations of liberty or by deviating from fundamental principles of fair trial, including the presumption of innocence.”

Regional instruments

ECHRArt. 5(1): “Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law (…).” Art. 5(4): “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

IACHRArt. 7: “Every person has the right to personal liberty and security. No one shall be deprived of his physical liberty except for the reasons and under the conditions established beforehand by the constitution of the State Party concerned or by a law established pursuant thereto. No one shall be subject to arbitrary arrest or imprisonment (…). Anyone who is deprived of his liberty shall be entitled to recourse to a competent court, in order that the court may decide without delay on the lawfulness of his arrest or detention and order his release if the arrest or detention is unlawful.”

“Soft” human rights law

UN General Assembly, “Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment,” Resolution 43/173, 1988

Principle 2: “Arrest, detention or imprisonment shall only be carried out strictly in accordance with the provisions of the law and by competent officials or persons authorized for that purpose.”

Principle 4: “Any form of detention or imprisonment and all measures affecting the human rights of a person under any form of detention or imprisonment shall be ordered by, or be subject to the effective control of, a judicial or other authority.”

Principle 5(1): “These principles shall be applied to all persons within the territory of any given State, without distinction of any kind (…).”

Principle 17(1): “A detained person shall be entitled to have the assistance of a legal counsel. (…)”

Conditions during internment and procedural rights

Internment must be an exceptional measure Internment is not an alternative to criminal proceedings Internment must be ordered only on an individualized basis,

without discrimination Internment must cease once its reasons cease Internment must conform to the principle of legality Right to information about the reasons for internment, as part of

humane treatment Right to be registered and held in a recognized place of

internment Right to challenge (with the least possible delay) the lawfulness

of his detention Review of the lawfulness of internment must be carried out by an

independent and impartial body Right to period review of the lawfulness of continued detention Internee must be allowed to have contacts with family members Right to medical care and attention required by his or her

condition Access to internees

J. Pejic, “Procedural principles for internment/administrative detention,” IRRC 2005

Recent case-law and policy

Amnesty International Canada v. Canada (Chief of the Defence Staff) (F.C.), 2008 FC 336, [2008] 4 F.C.R. 546 , Canada: Federal Court, 12 March 2008:

“Does the Canadian Charter of Rights and Freedoms apply during the armed conflict in Afghanistan to the detention of non-Canadians by the Canadian Forces or their transfer to Afghan authorities to be dealt with by those authorities? NO”

Maqaleh, et al., v. Gates (D.C. Cir., May 21, 2010):“[T]he jurisdiction of the courts to afford the right to habeas relief and the protection of the Suspension Clause does not extend to aliens held in Executive detention in the Bagram detention facility in the Afghan theater of war.”

JAG, Rule of Law Handbook: A Practitioner’s Guide for Judge Advocates, Center for Law and Military Operations, 2007, p. 67:

“In light of the need to establish the legitimacy of the rule of law among the host nation’s populace, conduct by US forces that would be questionable under any mainstream interpretation of international human rights law is unlikely to have a place in rule of law operations.”