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Guest Post by Nelleke van Amstel: Rules for Detention by Armed Groups

June 20, 2013

Nelleke van Amstel recently published In Search of Legal Grounds to Detain for Armed Groups in the latest issue of the Journal of International Humanitarian Legal Studies. In this post, Nelleke discusses her main arguments set out in the said article. At the time of writing the article, Nelleke was a legal adviser at the Netherlands Red Cross. Naturally, the views expressed in this post are her own and do not necessarily reflect the position of the aforementioned organisation. 

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A main dilemma concerning compliance of armed groups with rules of international humanitarian law (IHL) and human rights law (HRL) is the discrepancy currently existing between what is expected of these groups and the tools they are granted to comply with the law. On the one hand, armed groups are increasingly called upon to adhere to and enforce international humanitarian law, and to a certain extent human rights law. As such, they are addressed as a party to an armed conflict or as authors of attacks allegedly constituting, inter alia, war crimes or crimes against humanity. There is growing agreement that armed groups are bound by IHL and HRL, and more and more possibilities of criminal prosecution await alleged violators. On the other hand, armed groups are not recognized as contributors to standard setting or customary law. The exact set of rights and obligations applicable to them is still in dispute. Moreover, armed groups do not possess the legislative capacity that is necessary to create and to give shape to implementing legislation and rules.

A specific example of this gap is found in regard to arbitrary detention. Arbitrary deprivation of liberty is prohibited by international law; hence even during armed conflict internment of adversaries must have a legal basis in IHL or national law. The prohibition of arbitrary detention is present in HRL, IHL and customary law, which also includes internment for security reasons without a further basis in law. The law of non-international armed conflict contains an inherent power to intern, but a further legal source is still needed to ensure that detention is not arbitrary, and that outlines the grounds and procedure for detention. Such regulation does not exist for internment by organised armed groups. However, internment is inherently necessary when one is conducting warfare. When confining members of the enemy forces would not be permitted, the alternatives for would be to either release captured enemies, or else to kill them. Both are unwanted: an obligation to release would indeed render effective warfare impossible, whereas the killing of captured adversaries is clearly prohibited and a war crime.

In the future, this dilemma may lead to two distinct consequences. Firstly, accountability for war crimes for members of armed groups may arise when they intern persons without a further legal basis, and would thus be in violation of the prohibition of arbitrary detention. Under international criminal law, unlawful confinement is criminalized during non-international armed conflict, as can be derived from Common Article 3 of the 1949 Geneva Conventions, and such a prohibition is included in the ICRC’s Customary International Humanitarian Law Study. In addition, it is incorporated as a crime in several national laws.

Secondly, State responsibility may arise for failure to prevent these violations of IHL and HRL. Mere dissemination of IHL by the State, e.g. through national law, does not suffice to ensure compliance by all actors. Rules of behaviour during armed conflict need to be agreed upon by the fighting parties since in situations of non-international armed conflict a hierarchical structure of implementation cannot be relied on; this is particularly so when the armed group is beyond the government’s power, causing the legislative jurisdiction, which normally binds subjects on the territory of the State, to be insufficient. The State has a responsibility to take all available measures to protect persons on its territory against violations by armed groups, whilst taking note of the fact that internment of the enemy is an unavoidable occurrence during armed conflict. Thus, this due diligence obligation of States to prevent its subjects from falling victim to arbitrary detention implies a duty of States to regulate internment, in a manner that allows for respect of the rules on deprivation of liberty. States should, in this light, at the very least accept regulation initiated by armed groups. 

Solutions to the dilemma outlined above may lie in the inclusion of the legal grounds to intern that exist in IHL applicable to international armed conflicts into special agreements between warring parties (or even in unilateral declarations). In this manner, both the State (when ratifying the Geneva Conventions) and the armed group (when entering into the special agreement or when issuing the unilateral declaration) have – at some point – consented to these rules, and therefore the rules have legitimacy for each parties that would raise issues of compliance. An incentive to comply is further created as both parties have shown a clear commitment to the same set of obligations, especially since the obligations agreed on can be limited to what is (perceived as) realistic. Also, the agreement has a legal value as an agreement between two parties able to make legal commitments. Common Article 3 confirms the capacity of armed groups, as a party to a conflict, to enter into such agreements, and encourages this practice. Thus, it can be concluded that these agreements are a lawful and accepted practice, which is also confirmed by the wide range of examples of such agreements and the cooperation by States. However, it should be kept in mind here that the creation of an agreement or declaration does not alter the existing obligations of an armed group as a party to a non-international armed conflict, which apply regardless.

To improve the situation of civilians affected by hostilities, the focus should be on compliance with IHL. To achieve better compliance by armed groups is thus vital. The way forward should be an inclusive approach encouraging the adoption of IHL norms in instruments such as unilateral declarations, codes of conduct, and special agreements. While isolation and condemnation of armed groups have in many cases led to a deterioration of respect for international humanitarian law and human rights law, the compliance to rules that were created with armed groups taking part in the negotiations, and which were subsequently explicitly accepted by those groups, has been remarkably good.

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