Examining Detention Authority in NIAC: A Response to Heller

[Daragh Murray is a Lecturer at the University of Essex School of Law and Human Rights Centre.]

Thanks to Kevin for his post engaging with some of the issues discussed in my recent article on detention authority in non-international armed conflict. I would like to take this opportunity to provide a quick overview of my argument as relevant to this post, to discuss Kevin’s prohibition v. regulation argument and some of the other points he raised, and to highlight a key proposal developed in the article but not included in the original post.

Detention is a core activity in armed conflict, and one central to the conduct of military operations. The law of NIAC applicable to armed groups regulates detention when it occurs, but it does not establish an explicit legal basis for that detention. However, in the article I suggest that the fact that the law of armed conflict/international humanitarian law regulates detention means that it must be interpreted as establishing implicit detention authority.

This is because the prohibition of arbitrary detention is absolute, and this absolute prohibition remains applicable during non-international armed conflict. The right to liberty and security establishes that, to protect against arbitrariness, all detention must, amongst other requirements, have a legal basis. Accordingly, if IHL does not establish an implicit legal basis, then all detention by armed groups will be arbitrary and therefore prohibited, there being no other existing legal basis available to armed groups (see below). The law of treaty interpretation precludes this conclusion: it cannot be assumed that States intended to regulate that which is absolutely prohibited (arbitrary detention) as this would constitute an exercise in futility. CA3 must therefore be interpreted as establishing an implicit legal basis.

Importantly, if international law does not establish an implicit legal basis – and therefore prohibits all instances of armed group detention as arbitrary – international law will be of little relevance to armed groups, given the reality in which they exist. This will have significant practical consequences, and so clarity on this issue is essential.

Regulation v. prohibition

In his reply, Kevin raises an interesting question as to whether CA3 (etc.) regulates detention, or merely prohibits certain activities. In my view, NIAC’s detention-related provisions extend beyond mere negative prohibitions. The content of the obligations imposed require active (positive) measures. For instance, in order to fulfil the requirement that detainees ‘in all circumstances be treated humanely’, detaining authorities will be required not only to refrain from ill-treating detainees (i.e. through physical abuse) but also to actively address: conditions of detention, including quarters; provision of food, water, medicine; access to appropriate medical care; exercise, and so on. In my opinion, this active involvement indicates regulation, not just the imposition of prohibitions.

Different forms of regulation

The article discusses why international law cannot regulate that which is absolutely prohibited and I don’t want to repeat those arguments here. However, picking up on Kevin’s point regarding the regulation of torture, and the possibility of regulating impermissible activity, it is perhaps appropriate to make a distinction between two forms of regulation:

(A) regulations established to ensure compliance with an absolute prohibition, and

(B) regulations governing conduct that is absolutely prohibited.

(A)-type regulations are, of course, necessary. Indeed, this is exactly what UNCAT does. (B)-type regulation is, in my opinion, impermissible. Accordingly, while you may regulate the prohibition of torture (A), you cannot regulate torture itself (B). This was clearly stated by the ICTY in Furundzija (para 155). As such, international law would prohibit a doctor’s involvement in torture, as torture. This is distinct from the requirement that medical attention be given to detainees, irrespective of the cause of the harm. Returning to detention, international law clearly and absolutely prohibits arbitrary detention. It cannot therefore be assumed that States established rules to regulate detention by armed groups knowing that all instances of armed group detention will be arbitrary and therefore prohibited.

A legal basis for armed group detention could be established outside international law

 As Kevin notes, States may provide a domestic legal basis for armed group detention, although they do not typically do so. However, in creating CA3 (etc.) States chose to regulate armed group detention. This act of regulation necessitates the establishment of a legal basis in order to ensure consistency with the prohibition of arbitrary detention. As States have not provided a legal basis under domestic law, the required legal basis must be regarded as implicitly established under IHL.

Consequences of armed group detention authority

If armed groups party to a NIAC are recognised as having authority to detain, this does not suggest that all armed group detention is permissible. The scope of detention authority must be determined, and established procedures (such as judicial supervision) must be adhered to; this is something I have examined elsewhere (chapter 7). Issues also arise with respect to State sovereignty. However, it should be recalled that the authority under discussion is restricted to armed groups party to a NIAC, and is circumscribed by the law applicable in NIAC. That is, it applies only in exceptional situations, where State authority has been displaced. In such volatile situations, it is important that law applies, and that this law is appropriate to the situation. If we accept that detention is a necessary activity during armed conflict, then recognising, regulating and circumscribing the scope of that activity is arguably appropriate. Importantly, this also provides an opportunity to engage with armed groups in an effort to encourage legal compliance. At the same time, States can continue to criminalise armed group activity, from membership related offences, to violations of international law.

Moving forward

Acceptance of armed groups’ authority to detain will raise a number of legitimate concerns. Nonetheless, I do believe that this is an accurate reflection of the law as it stands. That is not to say, however, that this is necessarily ideal or the end of the story. The conclusion that IHL must be interpreted as establishing an implicit legal basis for detention is based on the application of the prohibition of arbitrary detention, as that prohibition applies to States. Understood in the State context, human rights law’s protection against arbitrariness requires a legal basis. It is possible, however, that the content of this prohibition as applied to armed groups might need to be re-evaluated.

Given the non-State status of armed groups, and the consequent difficulties vis-à-vis the creation of law, perhaps other protections against arbitrariness should be prioritised ahead of the legal basis criterion. Human rights law establishes a number of requirements in this regard, and these – and the possible re-consideration of the content of the prohibition of arbitrary detention – are discussed in greater detail in the article. Focusing on the ‘essence’ of human rights protections in this manner could be a possible ‘way forward’ both in relation to the specific issue of detention in NIAC, and to legal engagement with armed groups and other non-State actors more generally. This would facilitate coherence within international law, without necessitating that international law authorise elements of armed group activity.