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

25-02-2015

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.

  • Second thematic consultation of government experts, Montreux, Switzerland, 20-22 October 2014.
    The meeting covered grounds and procedures for internment, and transfers of detainees from one authority to another. This second 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 48 experts representing 32 States.
    Opening of meeting, Helen Durham, ICRC Director of International Law and Policy
    Introductory remarks and roadmap, by Knut Dörmann, head of the ICRC legal division

  • First 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.
    Thematic consultation of government experts on conditions of detention and particularly vulnerable detainees, Report, January 2015
  • 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 currently finalizing detailed reports on each thematic consultation, which will be released publicly after taking into account comments received from participants.
  • The next major event will be a consultation meeting open to all States, on 27-29 April 2015, in Geneva. At this meeting all States will be informed of the substantive discussions held so far and be given the opportunity to contribute their views. They will also be asked to evaluate concrete options to strengthen legal protection for persons deprived of their liberty on relation to NIAC.
  • In addition, the ICRC is undertaking bilateral consultations with States and other relevant actors.
  • The desired goal is to produce an outcome instrument that would elaborate, and thus strengthen, the standards applicable to detention in NIAC. Although the exact nature of such an instrument is still to be determined, States participating in the consultations so far have generally expressed a preference for an outcome of a non-binding nature. The process to develop an outcome instrument would likely begin after the 32nd International Conference. Taking into account all the consultations between 2012 and 2015, the ICRC will submit to the 32nd International Conference a concluding report and draft resolution presenting options and recommendations for the way forward.

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