Whether carried out by government authorities or non-state armed actors, seizing and holding one’s adversaries continues to be an innate and expected feature of war. In 2013 alone, the International Committee of the Red Cross (ICRC) visited more than 756,000 detainees in over 1,700 places of detention. A majority of those detainees were held in situations of ongoing armed conflict.
International humanitarian law (IHL) generally does not prohibit the taking of detainees by either government armed forces or armed groups. Indeed, from a humanitarian perspective, the availability of detention as an option can, in many cases, mitigate the lethal violence and overall human cost of war. Rather, IHL focuses on ensuring that any detention is carried out humanely. Detainees might consider themselves lucky to be alive, but their fate may be uncertain and conditions in detention may be harsh.
Rules governing detention exist in both international armed conflicts (IACs) and non-international armed conflicts (NIACs). But even a superficial examination of existing law reveals a substantial disparity between the robust and detailed provisions applicable in IACs, and the basic rules that have been codified for NIACs.
The four Geneva Conventions of 1949 contain more than 175 provisions regulating detention in virtually all of its aspects during international armed conflict. Those provisions address a vast range of potential concerns, including the provision of food and water, access to medical care, the severity of disciplinary measures and much more. There’s simply no comparable regime for NIACs, making for uncertainty over the source and content of rules governing detention in NIAC. That absence of clear rules has serious humanitarian consequences.
The Geneva Conventions mandate the ICRC to visit both prisoners of war and civilians interned during conflict. The ICRC also visits people detained in other situations of violence. ICRC’s visits aim to ensure humane treatment for detainees.
In the course of those visits, the ICRC frequently encounters conditions of detention that have grave consequences for the physical and mental health of the detained population. Inadequate food, water and clothing, insufficient or unhygienic sanitary facilities, and the absence of medical care are all common concerns. Detainees may be exposed to the elements or lacking access to fresh air. Overcrowding is common, and exacerbated by a lack of resources available to the detaining authority. Women, children, the elderly and the disabled can be particularly vulnerable in such cases.
Equally disturbing for detainees is the physical separation from, and the inability to communicate with, the outside world. That can cause anguish and uncertainty for them, as well as for family members who have no information about the fate of their spouses, children or parents. Failure by authorities to record the personal details of detainees makes it difficult to keep track of detainees and share news about their well-being with their families.
Often compounding those problems is the absence of an independent mechanism for challenging the grounds for detention and securing release when detention is no longer justified. In such cases, arbitrary deprivation of liberty (prohibited at all times, including armed conflict) may result.
The need to protect detainees is not limited to ensuring appropriate treatment. The transfer of detainees from one detaining authority to another has emerged as one of the defining features of armed conflicts over the past decade, especially where multinational forces or extraterritorial military operations are concerned. In such circumstances, it’s important to safeguard against the potential humanitarian consequences of a transfer, including torture, persecution and enforced disappearances. Such safeguards were, for example, included in Australia’s framework for detainee management in Afghanistan, under which Australia sought assurances from Afghan and United States authorities about humane treatment of detainees prior to their transfer by Australia.
On the basis of those concerns, and experience gained over more than 100 years of visiting detainees, the ICRC has concluded that existing rules on detention in NIAC fall short and require strengthening. With a mandate from the international community, the ICRC is consulting with government experts from around the world, including Australia, in order to evaluate how the laws of war might be strengthened to meet the humanitarian needs of detainees, while at the same time dealing with the realities of armed conflict.
Luckily, warring parties have available to them a wealth of laws and internationally recognised standards from which to draw in order to fill the gaps that currently exist. Some, like the Geneva Conventions, were developed to regulate armed conflict. Others are found in other sources, such as human rights law or rules relating to penal measures. Lawyers will be familiar with the ongoing academic debates over how those different instruments interact with one another. But our goal should be to focus on the practical impact that the application of such rules could have on the humanitarian needs of detainees.
By the end of 2015, the ICRC will release a report on its consultations, laying out options and recommendations. Countries will then have to determine the best way forward. One thing is clear. Detention triggers an inherent vulnerability, and the nature of war makes it even more likely that this vulnerability will lead to physical or psychological harm to the detainee. The laws of armed conflict must remain practical and relevant in providing legal protection to all persons detained in connection with war.
Netta Goussac is the Legal Adviser for the ICRC Regional Delegation in the Pacific. Image courtesy of Flickr user Victor.