Humanitarian Law & Policy in 2014: PHAP Speakers on Upcoming Issues and Developments
As has been the case systematically over the past few years, the great majority of armed conflicts taking place in the world are of a non-international character. This situation is not likely to change in 2014, considering the crises we are witnessing in the Central African Republic, South Sudan, Syria, and renewed tensions in the Democratic Republic of the Congo, just to mention a few. This means that, as Marco Sassòli has pointed out, “by definition, at least half the belligerents […] are non-State armed groups.”1 In fact, the number of non-state armed groups that are parties to armed conflicts is significantly higher than the number of state armed forces, posing great challenges to efforts to ensure respect for applicable rules of international law. One of the challenges that may be of particular relevance in 2014 is detention by non-state armed groups (NSAGs) of members of state armed forces or of civilians.
The normative framework applicable, directly or indirectly, to NSAGs remains an uncertain, though evolving, area of the law. While it is undisputed that non-state parties to an armed conflict are bound by international humanitarian law (IHL), the application of other bodies of law to NSAGs, such as international human rights law (IHRL), remains controversial. In order to be able to enhance non-state armed groups’ compliance with international law, especially on matters regarding the protection of civilians, there is an evident need for clarification of their international legal obligations.
IHL provisions governing non-international armed conflicts (NIACs) – binding for armed groups parties to a NIAC – as contained in Common Article 3 of the four 1949 Geneva Conventions, are fewer, less detailed, and, in certain instances, provides less protection than those regulating international armed conflicts. As a result, these provisions do not provide sufficiently detailed rules for NSAGs to deal with certain specific situations such as detention of state armed forces or civilians. Yet, this is something regularly occurring in the battlefield, since most armed groups capture or detain individuals in multiple occasions. Nonetheless, it is somewhat unclear what precise legal obligations they have when dealing with persons deprived of their liberty.
International humanitarian law applicable to non-international armed conflicts contains an inherent power to detain.2 However, it does not provide the grounds and procedural safeguards needed in order for detention not to be arbitrary.3 Such legal grounds do not exist for detention by armed non-state actors. States involved in a non-international armed conflict can overcome this lack of provisions by applying domestic law and international human rights law, which regulate the matter of detention in an extremely detailed way. However, domestic law does not allow NSAGs to detain members of a state’s armed forces or civilians in the first place, and international human rights law likewise does not explicitly provide a legal basis for detention by NSAGs. Nevertheless, detention is a necessity when conducting warfare, otherwise the only options would be the release of captured enemies, or, which sadly occurs all too frequently, for instance in Syria, killing them. Releasing captured fighters could render effective warfare difficult, while killing persons deprived of their liberty is generally prohibited under IHL and may amount to a war crime.4
To sum up, the need to clarify the international legal obligations of NSAGs in relation to detention of members of state armed forces or of civilians appears to be a central issue of concern for the year to come. On the one hand, NSAGs are expected to respect and comply with international norms and standards and are liable for criminal prosecution, both at the national and international level, if they fail to do so. On the other hand, a clear set of rules on the issue of detention that applies to NSAGs is missing and the legislative capacity necessary to create and implement new provisions is not granted to armed groups. A possible way to overcome this gap would be to encourage engagement with NSAGs with the view of developing generic detention principles and guidelines able to regulate the particular question of detention by non-state armed groups.
Notes
1 Sassòli, Marco (2010), "Taking Armed Groups Seriously: Ways to Improve their Compliance with International Humanitarian Law," International Humanitarian Legal Studies, vol. 1, no. 1, p. 5.
2 See Article 5 of the 1977 Additional Protocol II to the four Geneva Conventions of 1949.
3 Arbitrary detention is prohibited in Rule 99 of the International Committee of the Red Cross (ICRC) Study on Customary International Humanitarian Law from 2005.
4 See van Amstel, Nelleke (2012), "In Search of Legal Grounds to Detain for Armed Groups," Journal of International Humanitarian Legal Studies, vol. 3, pp. 160-191.