2. International Humanitarian Law

130. Certain provisions of international humanitarian law instruments also address the manner in which the liberty of individuals may be restricted and regulated. In the case of international armed conflicts in particular, both the Third and Fourth Geneva Conventions of 1949 contain extensive and specialized provisions addressing the circumstances under which prisoners of war and civilians may be interned or detained and the manner in which their internment or detention must be monitored.[350] With regard to prisoners of war, Articles 21, 118 and 119 of the Third Geneva Convention permit the internment of prisoners of war until their repatriation at the “cessation of active hostilities� or the completion of any criminal proceedings or punishment for an indictable offense that may be pending against a prisoner of war.[351] In addition, the detailed provisions under Articles 17 to 117 of the Third Geneva Convention regulate the conditions of internment. Prisoners of war are not by reason of that status considered to be criminals and, accordingly, their internment should not constitute a form of punishment.[352] Prisoners of war may, however, also be confined while awaiting trial for crimes for which they may properly be prosecuted if a member of the armed forces of the Detaining Power would be so confined if he were accused of a similar offense or if it is essential in the interests of national security and then only for a maximum period of three months.[353] Similarly, a prisoner of war may be confined for offenses against discipline if a member of the armed forces of the Detaining Power would be so confined if he were accused of a similar offense or if it is essential in the interests of camp order or discipline and then only for a maximum period of 14 days.[354] It should be noted in this connection that prisoner of war status applies only in situations of international armed conflict and those categories of armed conflict prescribed in Article 1(4) of Additional Protocol I, and that in cases of doubt in the course of an international armed conflict as to an individual’s classification as a prisoner of war, he or she shall enjoy the protection afforded to prisoners of war until such time as his or her status has been determined by a competent tribunal pursuant to Article 5 of the Third Geneva Convention.[355]

131. Articles 42, 43 and 78 of the Fourth Geneva Convention, which apply to enemy aliens within the territory of a party to an international armed conflict or protected persons in occupied territories, permit the internment or placing in assigned residence of such protected persons only if the security of the Detaining or Occupying Power makes it absolutely necessary. These provisions also mandate that any person so interned or placed in assigned residence shall have the right to have such action reconsidered or appealed with the least possible delay and, if it is continued, subject to periodic review, by an appropriate or competent body, court or administrative tribunal designated for that purpose.

132. With regard to persons who are in the power of a party to an international armed conflict and who do not benefit from more favorable treatment under the Conventions or under Additional Protocol I, including, for example, combatants who are not covered by Article 4 of the Third Convention and other persons who are denied prisoner-of-war status,[356] Article 75(3), (5) and (6) of Additional Protocol I provides as follows:

75(3). Any person arrested, detained or interned for actions related to the armed conflict shall be informed promptly, in a language he understands, of the reasons why these measures have been taken. Except in cases of arrest or detention for penal offences, such persons shall be released with the minimum delay possible and in any event as soon as the circumstances justifying the arrest, detention or internment have ceased to exist.

[. . .]

(5) Women whose liberty has been restricted for reasons related to the armed conflict shall be held in quarters separated from men’s quarters. They shall be under the immediate supervision of women. Nevertheless, in cases where families are detained or interned, they shall, whenever possible, be held in the same place and accommodated as family units.

(6) Persons who are arrested, detained or interned for reasons related to the armed conflict shall enjoy the protection provided by this article until their final release, repatriation or re-establishment, even after the end of the armed conflict.

133. It is also worth emphasizing that these provisions, as with all fundamental protections under international humanitarian law, cannot be the subject of derogation.[357]

134. Similar to the rules governing international human rights law, relevant provisions of humanitarian law regulating international armed conflicts provide for specific mechanisms by which detailed information concerning prisoners of war is to be gathered and provided to states concerned and next of kin, and which oblige detaining Powers to facilitate the provision of information to these mechanisms.[358] Also, as indicated in Part II(C), the detention of victims of armed conflict may be the subject of supervision by the International Committee of the Red Cross and, where established for the purposes of a specific international armed conflict, the Protecting Powers regime contemplated by the 1949 Geneva Conventions.[359]

135. International humanitarian law applicable to non-international armed conflicts similarly does not prohibit the capture and detention of persons who take an active part in hostilities, but prohibits the detention or internment of civilians except where necessary for imperative reasons of security.[360] Where circumstances justifying the detention of combatants or civilians exist, common Article 3 and Articles 4 and 5 of Additional Protocol II subject the treatment of persons deprived of their liberty for reasons related to the armed conflict to minimum standards of humane treatment and protection.

3. Right to Personal Liberty and Security and Terrorism

136. As noted previously, the conduct of states in situations of terrorism is at all times subject to the requirements of international human rights law, and may concurrently be the subject of the rules of international humanitarian law where the conditions for the application of that law may exist.

137. The right to personal liberty and security, to the extent that it is addressed by these two regimes of international law, may give rise to varying requirements as to when a person may be detained, for what duration, and subject to what supervisory mechanisms; in all circumstances, however, such requirements must conform to and be continuously evaluated in accordance with the fundamental principles of necessity, proportionality, humanity and non-discrimination.[361]

138. In circumstances not involving a state of emergency as strictly defined under applicable human rights instruments, states are fully bound by the restrictions and limitations under international human rights law governing deprivations of personal liberty. These include the rights of persons:

*

Not to be deprived of physical liberty except for the reasons and under conditions established by law;
*

To be informed, in a language they understand, of the reasons for their detention and to be promptly notified of the charge or charges against them;
*

To prompt contact between the detainee and his or her immediate family and to legal and medical assistance;
*

To be brought promptly before a competent court to determine the lawfulness of his or her arrest or detention and to order his or her release if the arrest or detention is unlawful;
*

To be tried within a reasonable time or to be released without prejudice to the proceedings, which release may be subject to guarantees to assure his or her appearance for trial;
*

To information on consular assistance in cases involving the arrest, commitment to prison or custody pending trial, or detention in any other manner of foreign nationals;[362]
*

To implementation of an effective system for registering arrests and detentions and providing that information to family members, attorneys and other persons with legitimate interest in the information.

139. Subject to the discussion below concerning the particular circumstances of armed conflicts, should a terrorist situation within a state’s jurisdiction be of such nature or degree as to give rise to an emergency that threatens a state’s independence or security, that state is nevertheless precluded from suspending certain fundamental aspects of the right to liberty and personal integrity which are considered necessary for the protection of non-derogable rights or which are non-derogable under the state’s other international obligations. These include the requirement that the grounds and procedures for the detention be prescribed by law, the right to be informed of the reasons for the detention, prompt access to legal counsel, family and, where necessary or applicable, medical and consular assistance, prescribed limits upon the length of prolonged detention, and maintenance of a central registry of detainees. These protections are also considered to include appropriate judicial review mechanisms to supervise detentions, promptly upon arrest or detention and at reasonable intervals when detention is extended.

140. Other aspects of the right to liberty and personal security may potentially be suspended, subject to the rules and principles governing derogation as described in Part II(B). This may include in particular the requirement that an individual be tried within a reasonable time or released. A state might, for example, be justified in subjecting individuals to periods of preventative or administrative detention for a period longer than would be permissible under ordinary circumstances, where their extended detention is demonstrated to be strictly necessary by reason of the emergency situation.[363] Any such detention must, however, continue for only such period as is necessitated by the situation and remain subject to the non-derogable protections described above, including continued judicial oversight through periodic review.

141. As indicated in Part II(C), in armed conflict situations, consideration must be given to international humanitarian law rules and principles as the applicable lex specialis in interpreting and applying the protections under international human rights instruments, including the right to personal liberty and security, with due regard to the overarching principles of necessity, proportionality, humanity and non-discrimination.[364] In this respect, there are several characteristics particular to the manner in which international humanitarian law regulates the justifications for and conditions of deprivations of liberty that must inform an analysis of the state’s compliance with its international human rights obligations in armed conflict situations. The significant implications that international humanitarian law may have for a person’s right to personal liberty and security, particularly that of a lawful or unlawful combatant, also highlights the importance of ensuring that a fair procedure exists for determining the status of individuals taken into custody by a state in order to ensure that they are afforded the international protections to which they are entitled.[365]

142. One of the principal factors to be taken into account in evaluating compliance with the right to liberty in the context of armed conflicts is the justification under international humanitarian law for detaining persons in times of war. In particular, international humanitarian law permits the internment of combatants by a party to the conflict as a fundamental component of achieving the party’s military objectives, namely to prevent the opposing party from benefiting from the continued participation of members of their forces who have laid down their arms or those placed hors de combat by sickness, wounds, detention or any other cause.[366] As discussed above, international humanitarian law also generally permits the internment of combatants to continue until their repatriation at the cessation of active hostilities. By reason of these particular and more specific international legal principles underlying the detention of combatants in armed conflict, therefore, applicable international law should not be considered to provide for any entitlement on the part of detained combatants to be informed of the reasons for their detention, to challenge the legality of their detention, or, in the absence of disciplinary or criminal proceedings, to be provided with access to legal counsel.

143. Conversely, as noted previously, international humanitarian law generally permits the administrative detention or internment of civilians and others who have not taken any active part in hostilities only under exceptional circumstances. In particular, such detention may only be undertaken pursuant to specific provisions, and may be authorized only when imperative concerns of security require it, when less restrictive measure could not accomplish the objective sought, and when the action is taken in compliance with the grounds and procedures established in pre-existing law.[367] The applicable rules of international humanitarian law relative to the detention of civilians also require that any detention be made pursuant to a "regular procedure," which shall include the right of the detainee to be heard and to appeal the decision, and any continuation of the detention must be subject to regular review.[368] The particular requirements of the review process may vary depending upon the circumstances of a particular case, including, for example the capabilities of the detainee. In all instances, however, minimum standards of human rights law require that detention review proceedings comply with the rules of procedural fairness. These rules include the requirements that the decision-maker meets prevailing standards of impartiality, that the detainee is given an opportunity to present evidence and to know and meet the claims of the opposing party, and that the detainee be given an opportunity to be represented by counsel or other representative.[369] It should be emphasized that even where armed hostilities may occur over a prolonged period, this factor alone cannot justify the extended detention or internment of civilians; their detention is only justified as long as security concerns strictly require it.[370]

144. As to the conditions under which deprivations of liberty may be effected, international humanitarian law recognizes that the apprehension of persons in armed conflict circumstances may occur in the heat of battle, in or near to the theatre of combat or in similar hazardous situations. Partly as a consequence, international humanitarian law applicable to international armed conflicts provides for a series of assumptions and decision-making mechanisms in order to determine the status and corresponding rights and obligations of individuals captured during an armed conflict, including their susceptibility to detention or internment. In respect of persons who have committed belligerent acts and have fallen into the hands of the enemy and whose status as a prisoner of war is in doubt, for example, Article 5 of the Third Geneva Convention, as further elaborated upon by Article 45 of Additional Protocol I, establishes a presumption of application of the protection of the Convention to such persons until such time as their status is determined by a “competent tribunal.� While the features of a competent tribunal in turn may necessarily be affected by such exigencies as proximity to the frontline, past practice has indicated that such tribunals may be administrative in nature, which may include military commissions, and should be composed of qualified officers.[371]

145. This in turn suggests that, in circumstances where terrorist acts may trigger or otherwise occur during an international armed conflict, a state’s compliance with the liberty rights of persons detained in the course of the conflict must be evaluated in light of the particular presumptions and mechanisms prescribed under international humanitarian law. Where the detainee is not a combatant or where there is a doubt as to his or her status, the law of armed conflict requires review of the person’s status and, accordingly, his or her susceptibility to and conditions of detention or internment.

146. Notwithstanding these specific rules and mechanisms governing the detention of persons in situations of armed conflict, there may be circumstances in which the continued existence of active hostilities becomes uncertain, or where a belligerent occupation continues over a prolonged period of time. Where this occurs, the regulations and procedures under international humanitarian law may prove inadequate to properly safeguard the minimum human rights standards of detainees.[372] The Commission recognizes that situations of this nature are not clearly addressed by existing international law. Nevertheless, in the Commission’s view the paramount consideration must at all times remain the effective protection pursuant to the rule of law of the fundamental rights of detainees, including the right to liberty and the right to humane treatment.[373] Accordingly, where detainees find themselves in uncertain or protracted situations of armed conflict or occupation, the Commission considers that the supervisory mechanisms as well as judicial guarantees under international human rights law and domestic law, including habeas corpus and amparo remedies, may necessarily supercede international humanitarian law where this is necessary to safeguard the fundamental rights of those detainees.[374]

Notes_________________________________

[350] In the regime of international humanitarian law, internment must be distinguished from detention. As explained by the International Committee of the Red Cross:

To intern a person is to put him in a certain area or place–in the case of prisoners of war, usually a camp–and to forbid him to leave its limits. The concept of internment should not be confused with that of detention. Internment involves the obligation not to leave the town, village, or piece of land, whether or not fenced in, on which the camp installations are situated, but it does not necessarily mean that a prisoner of war may be confined to a cell or a room. Such confinement may only be imposed in execution of penal or disciplinary sanctions, for which express provision is made in Section VI, Chapter III [of the Third Geneva Convention] [. . .].

ICRC, Commentary on the Third Geneva Convention Relative to the Treatment of Prisoners of War (ICRC, Jean S. Pictet, ed., 1960), p. 178 [hereinafter ICRC Commentary on the Third Geneva Convention].

[351] Article 119(5) of the Third Geneva Convention provides in this regard that “[p]risoners of war against whom criminal proceedings for an indictable offense are pending may be detained until the end of such proceedings, and, if necessary, until the completion of the punishment. The same shall apply to prisoners of war already convicted of an indictable offense.�

[352] See, e.g., Third Geneva Convention, supra note 67, Article 21 (“[. . .] Subject to the provisions of the present Convention relative to penal and disciplinary sanctions, prisoners of war may not be held in close confinement except where necessary to safeguard their health and then only during the continuation of the circumstances which make such confinement necessary�).

[353] Third Geneva Convention, supra note 67, Article 103.

[354] Third Geneva Convention, supra note 67, Article 95.

[355] Third Geneva Convention, supra note 67, Articles 4, 5. See also Additional Protocol I, supra note 68, Article 45, with respect to States parties to that instrument.

[356] ICRC Commentary on the Additional Protocols, supra note 210, at 869-870.

[357] See, e.g., supra Part II(C), para. 78.

[358] See, e.g., Third Geneva Convention, supra note 67, Articles 122, 123 (providing for the transmission to Powers at issue through an official Information Bureau and Central Prisoners of War Information Agency information concerning prisoners of war, including their surname, first names, place and full date of birth, name and address of person to be informed and the address to which correspondence for the prisoner may be sent).

[359] See supra Part II(B), para. 71, citing Article 3 common to the 1949 Geneva Conventions; Third Geneva Convention, supra note 67, Articles 8, 9.

[360] See IACHR Report on Colombia (1999), supra note 110, Ch. IV, para. 122.

[361] For discussions of these principles under international human rights and humanitarian law, see supra Part II(A), para. 51, Part II(C), paras. 65-66.

[362] Respect for the right to personal liberty and security in the context of migrant workers, asylum-seekers, refugees and other non-nationals is discussed in further detail in Part III(H), below.

[363] See, e.g., Eur. Court H.R., Lawless v. Republic of Ireland (Nº 3), 1 July 1961 (Nº 3), 1 E.H.R.R. 15, paras. 36, 37.

[364] See supra Part II(C), paras. 61, 65.

[365] See supra Part II(C), para. 74. See also IACHR, Precautionary Measures Requested in Respect of the Detainees in Guantanamo Bay, Cuba (United States), March 12, 2002.

[366] According to the ICRC, “prisoners of war are in the power of the State which has captured them. This power is based on force, and the first concern of the captor is to maintain it by resisting any escape or attempted escape by prisoners.� ICRC Commentary on the Third Geneva Convention, supra note 350, at 178. See similarly The Handbook of Humanitarian Law in Armed Conflicts (D. Fleck, ed. 1995), at 326 (indicating that the “purpose of captivity is to exclude enemy soldiers from further military operations. Since soldiers are permitted to participate in lawful military operations, prisoners of war shall only be considered as captives detained for reasons of security, not as criminals […] Taking an enemy combatant prisoner can therefore never serve as a punishment but only to prevent further participation in military operations against the detaining power. Because of this fundamental perception of lawful operations during an armed conflict, the internment of prisoners of war must differ from that of convicts.�).

[367] Coard et al. Case, supra note 73, paras. 52, 53, 54. See also Additional Protocol I, supra note 68, Article 75(3).

[368] Coard et al. Case, supra note 73, paras. 52, 53, 54.

[369] Ferrer-Mazorra et al. Case, supra note 114, para. 213. See similarly Eur. Court H.R., Brannigan v. United Kingdom, May 26, 1993, Ser. A 258-B, para. 58.

[370] In the context of Article 42 of the Fourth Geneva Convention concerning the internment of aliens in the territory of a party to an international armed conflict, the ICRC has observed that the Convention stresses “the exceptional character of internment and assigned residence by making their application subject to strict conditions; its object in doing this is to put an end to an abuse which occurred during the Second World War. All too often the mere fact of being an enemy subject was regarded as justifying internment. Henceforward only absolute necessity, based upon the requirements of state security, can justify recourse to these two measures, and only then if security cannot be safeguarded by other, less severe means. All considerations not on this basis are strictly excluded.� ICRC, Commentary on the Fourth Geneva Convention of 12 August 1949 (ICRC, Jean S. Pictet, ed., 1960) (hereinafter ICRC Commentary on the Fourth Geneva Convention], supra note 370.

[371] See ICRC Commentary on the Additional Protocols, supra note 210, at 551-552 and N. 29, citing, inter alia, W.H. Parks, The Law of War Adviser, 31 The JAG Journal, Nº 1, Summer, 1980, p. 14 (indicating that during the conflict in Vietnam the United States delegated the task of the classification of captives to tribunals consisting of three officers, and that in general it was considered that those who pronounced judgment on the conduct of members of the armed forces should be qualified and, for example, that only officers of at least equal rank could judge the conduct of an equal commanding officer).

[372] With respect to the repatriation of prisoners of war following the Korean War, for example, the ICRC has observed that “[t]he International Committee of the Red Cross had access to the camps set up by the United Nations, but was never in a position to make similar verifications in North Korea. The Protecting Powers never took up their duties, on either side. Moreover, the prisoners of war were never able to correspond with their families or to receive parcels from them. Thus, the essential provisions of the Convention were not applied and the application of Article 118 was considerably affected thereby. The Convention constitutes a whole and if some of its essential provisions are neglected, the whole of it is jeopardized.� See, e.g., ICRC Commentary on the Third Geneva Convention, supra note 350, at 546.

[373] The need to ensure that the fundamental rights of individuals are protected in all circumstances is similarly reflected in the Turku Declaration of Minimum Humanitarian Standards of December 2, 1990, by which a group of individual experts in humanitarian and human rights law affirmed minimum humanitarian standards applicable in all situations, including internal violence, disturbances, tensions, and public emergency. These include minimum protections concerning persons in detention prescribed under Article 4 of the Declaration. See also Meron, The Humanization of Humanitarian Law, supra note 189, at 273-275.

[374] Some publicists have similarly posited that, where international humanitarian law proves inadequate to address certain situations such as prolonged military occupations, the applicable human rights protections should be invoked to fill the void. See, e.g., Meron, The Humanization of Humanitarian Law, supra note 189, at 266, citing Adam Roberts, Prolonged Military Occupation: The Israeli-Occupied Territories Since 1967, 84 Am. J. Int’l L. 70-74 (1990). In the Commission’s view, the purposes underlying this proposition would apply not only to the substantive protections under international human rights law, but also to the supervising mechanisms by which those substantive provisions are given effect.