What Exactly Is the ICRC’s Position on Detention in NIAC?

by Kevin Jon Heller

I still need to write Part 2 of my response to Ryan Goodman, but it’s worth noting that he and I actually agree about detention in NIAC much more than we disagree. We both agree that IHL itself does not authorize such detention. We both agree that the standard governing detention in NIAC is that it must be non-arbitrary. We both agree that, in practice, it is non-arbitrary to detain individuals in NIAC for (something like) imperative reasons of security. So we seem to disagree only on one substantive point: where the requirement of non-arbitrariness comes from. Ryan says it comes from IHL itself. I argue that it comes from IHRL.

In my previous post, I took issue with Ryan’s claim that an ICRC Background Paper and Rule 99 of the ICRC’s study of customary law supported his position. I argued that neither clearly supports the idea that IHL requires detention in NIAC to be non-arbitrary, because both the Paper and the Rule rely on both IHL and IHRL for the substantive detention rules they endorse — and do not adequately disentangle the two legal strands. In response, Ryan accused me on Twitter — in a friendly manner — of arguing that he and the ICRC don’t understand the law of war.

Ryan and I obviously do disagree about whether IHL itself requires detention in NIAC to be non-arbitrary or whether its silence on that issue means IHRL’s requirement of non-arbitrariness applies as lex specialis. But I was not trying to claim that the ICRC was wrong, because I did not believe that Ryan was accurately characterizing its position. So I spent more time than than I expected after our exchange combing through the ICRC’s statements on the arbitrariness issue. I won’t bore readers with the twists and turns, but I do want to flag the ICRC’s most recent statement, an Opinion Paper dated November 2014. If the Opinion Paper does indeed reflect the ICRC’s current position on detention in NIAC, it turns out that  the ICRC disagrees with both me and Ryan, as well as with Dapo Akande and Lawrence Cawthorne-Hill at EJIL: Talk!, because it believes that IHL does, in fact, authorize detention in one kind of NIAC — extraterritorial NIAC. Here is what the ICRC says (p. 7):

In a “traditional” NIAC occurring in the territory of a State between government armed forces and one or more non-State armed groups, domestic law, informed by the State’s human rights obligations, and IHL, constitutes the legal framework for the possible internment by States of persons whose activity is deemed to pose a serious security threat. A careful examination of the interplay between national law and the applicable international legal regimes will be necessary. The right to judicial review of detention under human rights law will, of course, continue to apply; there are, however, differing views on whether this obligation may be derogated from.

Identifying the legal framework governing internment becomes particularly complicated in NIACs with an extraterritorial element, i.e. those in which the armed forces of one or more State, or of an international or regional organization, fight alongside the armed forces of a host State, in its territory, against one or more organized non-State armed groups.

The fact that Article 3 common to the Geneva Conventions neither expressly mentions internment, nor elaborates on permissible grounds or process, has become a source of different positions on the legal basis for internment by States in an extraterritorial NIAC. One view is that a legal basis for internment would have to be explicit, as it is in the Fourth Geneva Convention; in the absence of such a rule, IHL cannot provide it implicitly. Another view, shared by the ICRC, is that both customary and treaty IHL contain an inherent power to intern and may in this respect be said to provide a legal basis for internment in NIAC. This position is based on the fact that internment is a form of deprivation of liberty which is a common occurrence in armed conflict, not prohibited by Common Article 3, and that Additional Protocol II – which has been ratified by 167 States – refers explicitly to internment.

In short, according to the ICRC, IHL does not authorize detention in “traditional” NIACs, those fought solely on the territory of one state, but does authorize detention in extraterritorial NIACs. Indeed, the Opinion Paper specifically cites Serdar Mohammed as an example of the first view of extraterritorial NIAC — the one that the ICRC rejects. The ICRC’s position thus seems to be closest to Aurel Sari in the comments to my previous post, as well as to Kubo Mačák at EJIL: Talk!. Then again, the ICRC doesn’t completely agree with them, either, because the Opinion Paper quite specifically limits IHL’s inherent power to detain to extraterritorial NIAC — thus seeming to agree with me, Ryan, Dapo, and Lawrence that the authority to detain in at least traditional one-state NIACs comes from domestic law, not from IHL itself.

I confess that I find the ICRC’s traditional/extraterritorial distinction rather confusing. I don’t understand how the conventional and customary IHL of NIAC could contain “an inherent power to intern” in extraterritorial NIAC but not in traditional NIAC; doesn’t it have to be both — or neither? After all, each of the factors the ICRC cites in defense of its position apply equally to traditional NIAC. Internment is indeed a “common occurrence in armed conflict,” but it is common in both traditional and extraterritorial NIACs. Common Article 3 does not prohibit detention in either traditional or extraterritorial NIAC. And Additional Protocol II is capable of applying to some traditional NIACs and of not apply to some extraterritorial NIACs. In fact, it is probably more likely to apply in a traditional NIAC.

To be clear, I’m skeptical the Opinion Paper is correct even concerning extraterritorial NIAC. Nothing in conventional IHL suggests an inherent power to detain in any kind of NIAC: as Ryan, Dapo, and Lawrence have all pointed out, international law often recognizes and regulates a practice without authorizing it. And although there could in principle be an asymmetric customary rule that says IHL authorizes detention in extraterritorial NIAC while domestic authorization is required in a traditional NIAC, there seems to be no evidence that such a rule exists. As Dapo and Lawrence point out in their post, “[e]ven in the context of extraterritorial NIACs, states have looked elsewhere for authorisation [to detain] (see, e.g., Iraq and Security Council Resolution 1546).”

My point, then, is simply that I don’t think the ICRC can have it both ways. Either there is an inherent power in IHL to detain in NIAC or there isn’t.

One thing is clear: the ICRC really needs to clarify its position on detention in NIAC.


5 Responses

  1. Moreover, an extraterritorial NIAC is an IAC

  2. I’m not sure I understand why it matters whether the prohibition on “arbitrary” detention derives from customary IHL or from IHRL. FWIW, in the Mohammad case, as I understand it, that limitation does, indeed, bind the UK by virtue of Art. 5 of the European Convention, unless the U.K. has derogated publicly (it hasn’t) or unless there’s some other affirmative authority for the detention (e.g., Afghan law or a British AUMF).

    But here’s what I don’t yet understand. Yes, as you say, it is non-arbitrary to detain individuals in NIAC for (something like) imperative reasons of security. But why is it not *also* nonarbitrary to detain individuals in a NIAC because they are members of enemy armed forces, as the U.S. held Confederate soldiers in the Civil War?

  3. Marty,

    It is definitely not arbitrary to detain members of organized armed groups or civilians who DPH. It’s also not arbitrary to detain civilians who indirectly participate in hostilities (though they can obviously not be targeted). And that is true regardless of where the standard comes from.

    Indeed, as you sense, very little follows substantively from the debate about whether the arbitrariness standard comes from IHL or IHRL. The debate is really just about methodology. But methodology matters a great deal in terms of the procedural regulation of detention in NIAC. The US argues that the applicable procedural regime should be determined by analogy to GC III and GC IV; I argue in my chapter that it comes from IHRL. Those regimes are not the same; individuals detained as security threats under IHRL — which includes all of the categories of individuals mentioned above — are entitled to far greater procedural protections than individuals detained as POWs under GC III and even than individuals detained as civilians under GC IV.

  4. Thank you Kevin for pointing to this issue.
    But I do not think we should understand from these three paragraphs that the ICRC intends to apply the double standard you describe.

    My understanding is that in traditional NIACs what you look at first is domestic law of the territorial State, and the domestic legal basis can “informed by” IHL (as is clear from he ICRC’s paragraph on traditional NIACs).
    In extraterritorial NIACs, the applicable law is less clear when foreign forces (from a State or international organisation) detain fighters: here the question is where should we look at for the legal basis for detention (unless there is an agreement that the domestic law of the territorial state should be legal basis).
    And in this case, it seems that according to the ICRC, IHL would be sufficient: “Another view, shared by the ICRC, is that both customary and treaty IHL contain an inherent power to intern and may in this respect be said to provide a legal basis for internment in NIAC.”
    I.e. according to the ICRC, IHL can provide a legal basis for detention in NIACs, INCLUDING (but not limited to) extraterritorial NIACs. Simply, in ‘traditional NIACs’, we would not need to ask whether IHL provides a sufficient basis, because we would first turn to domestic law.
    That is at least my humble understanding of those paragraphs… But looking forward to your further thoughts!

  5. Justice Leggat is right. There is no detention authority in the IHL of NIAC. But I also predict he’ll be reversed on appeal in an unprincipled decision that will largely have been influenced by the UK military and political temper tantrum against the European Court’s emerging jurisprudence on extraterritorial application of the European Convention: “play by my rules or I take the ball home.” See, e.g., http://ukhumanrightsblog.com/2014/07/17/the-tory-human-rights-car-crash/ and http://eulawanalysis.blogspot.com/2014/07/would-uks-withdrawal-from-echr-lead-to.html.

    On the subject of where to find NIAC detention authority, I just published an article, Is There a Way Out of the Non-International Armed Conflict Detention Dilemma? in the Naval War College’s International Law Studies. It might be of interest and can be found at http://www.usnwc.edu/ils, along with Sean Aughey and Aurel Sari’s article that supports the UK government’s views.

    Finally, KJH is also right that the ICRC has been less than clear about where NIAC detention authority resides. In May of last year, I had an Opinio Juris post noting that “as the self-appointed “guardian” of the laws of armed conflict – owes the world a response” (to this question). http://opiniojuris.org/2014/05/22/guest-post-rona-mohammed-v-ministry-defence-detention-niac/. I stand by my concerns expressed there, and like KJH, am skeptical of the claim that the IHL of internal NIAC is different than the IHL of transnational NIAC. As treaty law contains no explicit detention construct for any type of NIAC, the authority for NIAC detention generally, and any alleged distinction between internal and transnational NIAC detention authority in particular, would have to be found in customary IHL of NIAC, if it is not contained in domestic law. Again, Justice Leggat got it right and the burden is on those who claim the contrary to show a critical mass of state practice and opinio juris supporting their view that either all of detention authority in NIAC comes from IHL, or that only transnational NIAC detention authority comes from IHL.

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