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Detention in non-international armed conflict: The ICRC's work on strengthening legal protection

31-01-2014

In comparison to international armed conflict (IAC), treaty law regarding deprivation of liberty of persons in relation to non-international armed conflict (NIAC) is very limited. The ICRC is currently leading a major consultation process on how to strengthen legal protection for persons deprived of their liberty in relation to NIAC.

The gaps in IHL on detention in non-international armed conflict (NIAC)

As part of its overall project on "Strengthening legal protection for victims of armed conflict", the ICRC is currently undertaking consultation and research, to identify options for strengthening IHL protection for persons deprived of their liberty in relation to NIAC. 

In comparison to international armed conflict (IAC), the treaty law regarding detention in relation to NIAC is very limited. For example, the four Geneva Conventions, which are applicable to IAC, contain more than 175 provisions regulating detention. However, there is no comparable regime for NIACs. The ICRC has identified four key areas in which IHL governing detention in relation to NIAC falls short: 

  1. conditions of detention;
  2. protection for especially vulnerable groups of detainees;
  3. grounds and procedures for internment, and
  4. transfers of detainees from one authority to another.

  

The consultation process so far

Pursuant to Resolution 1 of the 31st International Conference of the Red Cross and Red Crescent (2011), the ICRC is facilitating consultations with States and other relevant actors, on how to address the above gaps.

  • Thematic consultation of government experts, Geneva, January 2014.
    The meeting covered conditions of detention and protection for especially vulnerable groups of detainees. This first in-depth meeting examined relevant protections drawn from a variety of international law instruments and assessed the practical implications of their application in NIAC. It also sought to identify more specific areas of protection that should be covered in any strengthening of IHL in this area. The consultation was attended by 57 experts representing 37 States.
    Opening of Meeting, by Philip Spoerri, ICRC Director for International law and Cooperation within the Movement
    Introductory Remarks and Roadmap, by Knut Dörmann, head of the legal division at the ICRC.
    Background paper on conditions of detentions and particularly vulnerable detainees
  • Consultations with government experts
    In 2012-2013, the ICRC held four regional consultations with government experts from across Africa, Europe, the Americas, the Caribbean, the Asia Pacific and Middle East. In total, the consultations included 170 government experts from 93 States. States have broadly agreed with the ICRC’s reading of the humanitarian and legal challenges associated with detention in relation to NIAC, as well as with the need for further work to address these challenges.
    South Africa, November 2012
    Costa Rica, November 2012
    Switzerland, December 2012
    Malaysia, April 2013
    Synthesis report

Next steps

  • The ICRC is continuing to hold consultations, including more in-depth expert meetings on the four main topics identified. Following the first thematic meeting in January which focused on conditions of detention and vulnerable groups of detainees, a second thematic consultation will be held in October this year. The second thematic meeting will focus on grounds and procedures for detention and transfers of detainees from one authority to another. The ICRC will discuss the content of these thematic consultations and provide an update on the process in a meeting of all States planned for the beginning of 2015.
  • These consultations will inform the presentation of a report setting out options and recommendations for the way forward, for consideration by the 2015 International Conference of the Red Cross and Red Crescent.

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