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South Africa: strengthening legal protection for persons deprived of their liberty

08-02-2013 Interview

The first regional consultation on Strengthening Legal Protection for Persons deprived of their Liberty in relation to Non-international Armed conflict took place in Pretoria 13-14 November 2012. Participant, Lt. Col. Godard Busingye from the Ugandan Ministry of Defence, spoke with the ICRC about the inaugural regional consultation and the importance of strengthening laws that protect people detained during non-international armed conflict.

The first regional consultation took place in Africa; why is this gathering important for the region?

African States have now resolved their international relations issues with their neighbours and are concentrating on internal nation building capabilities, so few cases of international armed conflicts are anticipated on the continent. However, not all African countries maintain expected standards of democracy and good governance. In some cases this results in the governing regimes becoming corrupt, despotic and totally repressive to their citizens. Consequently, those arrested for reasons associated with taking up arms against their governments will be at risk of being denied their basic protections while in detention even though the international community has agreed upon these rights in a number of international humanitarian and human rights law instruments.

African solutions are increasingly being appreciated by the international community as benchmarks for addressing global problems related to deprivation of liberty during non-international armed conflict. Holding the first consultations in Africa puts us, as Africans, on guard—we cannot continue to hide under the umbrella of state sovereignty while violating the rights of persons detained in relation to non-international armed conflicts. Somehow our acts will come out and at the end of the tunnel there will be need to account for our acts.

A large number of today's conflicts are non-international, how does this impact the laws that govern conflict i.e. international humanitarian law?

The largest body of international humanitarian law was crafted to address issues related to international armed conflict, rather than non-international armed conflict. But conflicts between states are becoming less frequent, so the body of law crafted to address a situation that is no longer the norm must be understood and revisited to address the changing realities on the ground. However, even in the circumstances that prevail now, international humanitarian law remains relevant to non-international armed conflict situations.

Moving specifically to detention, which areas of the law regarding conditions of detention during non-international armed conflict need to be improved and why?

We need to ensure that detainees are not subjected to degrading or inhuman conditions, or to torture. This area of the law needs to be adjusted to allow international inspection of places of detention to ascertain their suitability. The age, sex and disability concerns of the detainees need to be attended to. Gender disparities during detention need to be addressed so that the concept is well understood by state authorities. Increasingly women are becoming members of armed forces and also joining rebel ranks, yet this fact has not yet specifically been addressed in the law. As such detention facilities and services provided within are not always suitable for the hygiene needs of women.

How can the grounds and procedures for non- criminal detention be improved? Where is the greatest need for more clarity and strengthening of the law?

Often, there is no clear guidance on the grounds and procedures for non-criminal detention; this grey area is abused by state functionaries. It needs to be clarified upon in the law—under what circumstances can a person be detained on non-criminal grounds, what procedures must be observed? For example, are the procedures for informing the families of the detained persons complied with? Grounds and procedures for non-criminal detention also include detention in the interest of the detained person—to restrict his or her liberties for his or her personal security. This ground is situational and persons so detained should be immediately and unconditionally released as soon as the conditions that led to their detention no longer exist.

Could you share some key lessons you learnt/pertinent ideas you gained from discussing with participants from the region?

States need to share experiences about the constraints they have in regard to detention related to non-international armed conflict. The ICRC can only address matters related to detention during non-international armed conflict if it consults with States and appreciates their predicaments in regard to failure to comply with international humanitarian law and human rights law regimes. Conversely, states in non-international armed conflict situations should be open to the ICRC and human rights and humanitarian agencies so that their situation is understood and they can be helped to comply with the law.

What are your thoughts on potential outcomes of these consultations?

I think the most important outcome of these consultations will be a renewed commitment by the international community to address the problems associated with detention during situations of non-international armed conflicts. States will also be more open and transparent to international humanitarian agencies when approached so that they can overcome any obstacles to complying with the law. The weak spots in the law identified during the consultations may call for a review of international humanitarian law so that it becomes more relevant to the prevailing conditions and realities regarding armed conflicts.

Following the consultations, what do you think is the best way forward?

I think it will be in the interest of our governments to receive feedback on the final outcome of the consultations so that they can put in place means to address the gaps identified. I also think that the ICRC should identify experts on the subject and regularly consult with them to discuss the issues raised in the on-going consultations.

The interview reflects the views of the interviewee alone and not necessarily those of the ICRC.