Detention in non-international armed conflict: The ICRC's work on strengthening legal protection
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. Further detail on each of these areas can be found in the ICRC background paper on detention for the regional consultations 2012-2013
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:
- conditions of detention;
- protection for especially vulnerable groups of detainees;
- grounds and procedures for internment, and
- transfers of detainees from one authority to another.
Further detail on each of these areas can be found in : Strengthening legal protection for persons deprived of their liberty in relation to non-international armed conflict - Regional consultations 2012-13
A first thematic consultation of government experts was held in Geneva in 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.
Introductory Remarks and Roadmap, by Knut Dörmann, head of the legal division at the ICRC.
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. These were in South Africa (November 2012); Costa Rica (November 2012); Switzerland (December 2012) and Malaysia (April 2013). 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. Read also the Synthesis report from regional consultations of government experts
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.
- In 2014, the ICRC envisages further consultations, including more in-depth expert meetings on the four main topics identified. The first thematic meeting will be in January 2014, and will focus on conditions of detention and vulnerable groups of detainees. The second thematic meeting will be in July 2014, and will focus on grounds and procedures for internment, and transfers of detainees from one authority to another.
- The second thematic consultation will be held later this year and 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 in a meeting of all States planned for the beginning of 2015.
This process 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.