Strengthening international humanitarian law - Protecting persons deprived of their liberty

27 April 2015

Meeting of States on Strengthening International Humanitarian Law Protecting Persons Deprived of their Liberty, 27 April 2015, Geneva, Switzerland. Speech given by Mr Peter Maurer President of the ICRC.

I am pleased to welcome you all to this Meeting of States on Strengthening International Humanitarian Law Protecting Persons Deprived of their Liberty. We are here today because of our shared commitment to ensuring that international humanitarian law (IHL) remains practical and relevant in providing legal protection to all detainees. I would like to express our appreciation to you for participating in this important event leading up to the 32nd International Conference of the Red Cross and Red Crescent.

Deprivation of liberty is a reality of war. Whether detention is carried out by States or by non-State armed groups, whether it is imposed on military personnel or on civilians, it is certain to occur in the vast majority of armed conflicts. In order to mitigate the human suffering that accompanies such situations, IHL regulates detention to ensure that its human cost is limited. It protects the health and human dignity of detainees; it ensures that their whereabouts and well-being are known; and it provides safeguards to prevent unlawful or arbitrary detention.

The ICRC works every day to promote the implementation of rules and standards providing humanitarian protection to detainees and to offer assistance in some of the most challenging circumstances. Our field activities consist in large part of visits to places of detention, and not only in situations of non-international armed conflict. In 2014 the ICRC visited more than 800.000 detainees in over 90 countries, organized along four main lines:

1) We protect detainees against summary executions, forced disappearances and ill treatment;

2) We ensure that they have adequate food, water, hygiene, and medical care;

3) We reconnect them with their families across the front lines of conflict;

4) And finally, we warrant that they enjoy the procedural safeguards and judicial guarantees which prevent unlawful detention.

The humanitarian challenges that we see during our detention visits are as numerous and diverse as the contexts and legal frameworks in which we operate. Every day, we learn from our experiences and adapt to changing conflict dynamics. Armed actors and detaining authorities differ from context to context. Domestic laws and policies vary from one State to the next.

Across the broad spectrum of conflict environments, some of the most important humanitarian challenges we face, stem from a lack of compliance with existing rules. Other humanitarian challenges, however, stem from the inadequacy of the law's substantive provisions. In many areas of IHL, the obligations of the parties are clear and comprehensive. In other areas, however, it is the substantive provisions themselves that need strengthening.

Much of the suffering endured by detainees could be avoided by strengthening IHL to better protect them, and it is in the area of non-international armed conflict where this strengthening is most needed.

States have developed an extensive body of IHL governing deprivation of liberty in armed conflict. But this development has focused primarily on international armed conflict – or armed conflict between two or more States. The four Geneva Conventions, for example, contain more than 175 treaty articles regulating almost all aspects of detention in such conflicts.

When it comes to non-international armed conflict, we see a stark contrast. Although treaty and customary law contain vital protections, they are markedly limited in comparison to what exists for international armed conflict. This is especially true in the areas that the ICRC has identified as in need of strengthening: conditions of detention, particularly vulnerable groups, grounds and procedures for internment, and detainee transfers.

Conflicts involving non-State armed groups are the most prevalent form of armed conflict today. As we gather here, these non-international armed conflicts (or NIACs) are occurring in virtually every region of the world. Yet IHL, the body of law specifically designed for armed conflict, leaves much to be desired when it comes to protecting detainees in NIAC.

The absence within IHL of specific provisions addressing these issues means that forces on the ground can find themselves unsure about what standards to apply. This ambiguity has triggered debates about the relationship between IHL and international human rights law, as well as the content of customary international law.

The ICRC is well aware of the sensitivity and complexity of this topic. It is an area with both political and practical challenges. There are a large number of States currently involved in or affected by non-international armed conflict.Understandably, this can make it difficult for some countries to discuss issues related to detention.

Let me reaffirm that neither this meeting nor any other aspect of this consultation process aims to pass judgment on a State's detention activities. Throughout the consultation process we have encouraged States to share their practices, but only in order to better understand the humanitarian challenges they face in their detention operations, and how they overcome those challenges. We hope that you will continue to make these valuable contributions over the next three days.

We are also aware that the significant diversity of non-international armed conflicts will present challenges going forward.NIACs have traditionally been understood as conflicts that occur solely within the territory of a single State. But as recent conflicts have shown, NIACs can also take on an extraterritorial element, for example, when purely internal conflicts spill across borders or when multinational forces operate on the territory of a host State. The challenges posed by the different operational circumstances in which NIACs take place have been a theme throughout the consultations. We recognize the complexity, but we are confident in our ability to find solutions together as discussions go forward.

Finally, we are aware that detention by non-State armed groups can be a sensitive issue, particularly as it relates to their legal status and legitimacy, or the right of a sovereign State to take measures against such groups. However, we must acknowledge the fact that non-State parties to an armed conflict will deprive people of their liberty. If our purpose here is to protect detainees, we must protect those held by those actors as much as we protect those in the hands of States. It is in the interest of all to ensure that when military personnel, government officials and others are detained by armed groups, the obligations of those groups under IHL are strong and clear.

All the challenges I have referred to, have been discussed with States in the framework of the consultation process. The ICRC, together with States, is mindful of these sensitivities and we appreciate that these problems do not always have easy solutions.

The complexity of detention in NIAC is the reason we have sought to facilitate this consultation process in a step-by-step manner. We began with regional consultations in 2012 and 2013, which helped us identify the main opportunities and challenges. Thematic discussions followed in 2014, which provided us with a deeper understanding of the technical and operational issues to consider. And now we are widening the discussions, sharing what we have learned, to gain further perspectives and contributions from all States.

We have approached these challenges through a pragmatic approach, focusing on the need to better protect detainees by strengthening IHL in a realistic and meaningful way. We are confident that through ongoing discussion we will together find a way forward. I know that this is not the only normative and practical area which you may want addressed, but I invite you to focus with energy on the task at hand today. I exhort all States participating in the discussions in the next few days – and in the lead-up to the International Conference – to look beyond the political sensitivities and to remain focused on the need to solve the humanitarian issue that is at the heart of the initiative: affording protection to persons deprived of their liberty in relation to NIAC.

We are indeed at a critical juncture in this consultation process. Over the next three days, we hope to hear your views on some of the most complex issues confronting IHL today, and we hope to explore concrete avenues for strengthening this important body of law. I encourage all States to participate actively in sharing your views, your perspectives and your experiences. In this room, through all the delegations represented here, we have the benefit of an enormous wealth of experience – bringing together all the different vantage points of legal, diplomatic, military and operational experience to shed light on the issue of detention. Together, I am confident that we can use this collective brainpower and experience to generate good ideas for a positive way forward. We are counting on your input and support both in this meeting and over the coming months, in the lead-up to the International Conference in December.