The Rules - Detaining HVTs and Others
This thread is a non-identical twin to the thread, The Rules - Engaging HVTs & OBL, which deals with the kill aspect of neutralizing the enemy. This thread deals with the capture (detention) aspect of neutralizing the enemy. It also can tie in with the convert aspect of the tri-part neutralization concept (kill, capture or convert).
Two reasons for the thread are (1) the apparent uncertainty within the ICRC concerning the rules of capture and detention in non-international armed conflicts (to the US, Common Article 3 situations); and (2) the definite uncertainty in what US law will be as the President and Congress work toward (or away from) a common detention and trial framework in the National Defense Appropriations Act (NDAA; see Lawfare over the last few weeks).
As to the ICRC's issue, we have from Lawfare, Red Cross Conference Acknowledges “Gaps” in International Humanitarian Law Governing Detention (Lawfare 3 Dec 2011; by John Bellinger, who is a partner at Arnold & Porter LLP. Prior to that, he was Legal Adviser at State [2005-2009], and previously was Legal Adviser to the National Security Council (NSC) [2001-2005]):
The ICRC prepared two important background reports for the conference:The 31st Quadrennial Conference of the International Red Cross and Red Crescent closed on Thursday in Geneva with the adoption of a resolution inviting the International Committee of the Red Cross (ICRC) to study whether existing international humanitarian law is adequate, or needs to be strengthened and clarified, as applied to persons detained in armed conflicts. The Quadrennial Conference comprises the 194 States Party to the Geneva Conventions and all the national humanitarian aid societies that are part of the Red Cross and Red Crescent Movement. The resolution, and the ICRC reports that preceded them, constitute a candid and remarkable acknowledgment that — contrary to the adamant assertions of some observers — international law in general, and the Geneva Conventions in particular, do not in fact provide clear guidance to states engaged in detention activities and instead have some legal gaps.
Although the next steps are not clear, it appears likely that the ICRC will convene some kind of working group, in coordination with states, to examine the gaps and how to fill them. In an interview on the Conference website, an ICRC expert says “One possibility would be to negotiate a new treaty on detention issues. But other possibilities would also have to be considered, because some States may not see the need to adopt new treaty law. One of these, for example, would be to use more “soft-law” instruments – i.e. detailed rules that provide guidance without being legally binding. Or we could state more precisely what constitutes good practice.”
Report on International Humanitarian Law and Challenges of Contemporary Armed Conflicts
Strengthening Legal Protection for Victims of Armed Conflicts
The ICRC has conducted a two-year internal survey to consider whether the GCs are "relevant" to present-day armed conflicts. I would suggest that the issue is not whether the GCs are "relevant" (a fairly low bar); but whether they are "material" (and if so, to what extent).
In any event, here is Bellinger's assessment of the present ICRC position on a number of key issues:
Bellinger and co-author Vijay Padmanabhan recently addressed a similar set of concerns, “Detention Operations in Contemporary Conflicts: Four Challenges for the Geneva Conventions and Other Existing Law.”While international humanitarian law contains detailed rules on conditions of detention in international armed conflicts, this is not the case in conflicts not of an international character, especially those governed by Article 3 common to the Geneva Conventions, the minimum norm applicable in all non-international armed conflicts. There is a need to elaborate specific provisions on the various elements that make up a detention regime with a view to ensuring that detaining parties, whether State or non-State, ensure that those who are in their power are treated humanely.
The relevant rules of customary law are by necessity formulated in general terms, and thus do not provide sufficient guidance to detaining authorities on how an adequate detention regime may be created and operated.
In contrast to the Fourth Geneva Convention rules governing international armed conflicts, there are no international humanitarian law treaty provisions on procedural safeguards for internment in non-international armed conflicts.
Customary international humanitarian law prohibits arbitrary deprivation of liberty, but does not provide criteria for determining what is “arbitrary”. Article 3 common to the Geneva Conventions contains no provisions regulating internment, apart from the requirement of humane treatment. Internment is, however, clearly a measure that can be taken in noninternational armed conflicts, as evidenced by the language of Additional Protocol II, which mentions internment in Articles 5 and 6 respectively, but likewise does not give details on how it is to be organized.
Given the evident challenges faced by persons who might have reason to fear for their safety if they are transferred to another State, it is absolutely necessary to provide legal guidance to detaining authorities in such cases. The lack of legal provisions in the humanitarian law governing non-international armed conflicts suggests that it would be highly advisable to provide for a set of workable substantive and procedural rules that would both guide the actions of States and non-governmental armed groups and protect the rights of affected persons.
Some of the gaps in the existing applicable law require the preparation of new legal solutions.
The most extensive practice in the area of detention lies in the US Courts (primarily the DC Circuit and District judges), as we have seen in individual cases discussed in this thread, Crimes, War Crimes and the War on Terror.
Regards
Mike
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