Minding the Gap, Properly: Conflict Classification, Protected Persons, and What the Geneva Conventions Already Require (Part II) – A Reply to Alexandria Virginski

[Yousuf Syed Khan is a Manager, Law and Policy at Legal Action Worldwide in Geneva. He is also a Nonresident Senior Fellow at the Atlantic Council (Strategic Litigation Project), and an Associate Fellow at the International Centre for Counter-Terrorism – The Hague.

Jérôme de Hemptinne is an Assistant Professor at Utrecht University.]

In Part I of this post, we clarified which legal regimes apply, and to whom. We turn now in Part II to what those regimes actually require in detention. This also provides the necessary baseline for assessing Virginski’s proposed reform – before asking what additional protections are needed, the protections that already exist must be distinguished from the gaps that remain genuinely unresolved.

Civilian Internment Standards are not “Nominal”

Virginski next acknowledges that protected persons may be interned only where the security of the detaining power makes it absolutely necessary, then discounts the requirement by stating “the application is nominal given that the detention of any person would, without question, satisfy the ‘necessity’ requirement in the midst of an ongoing conflict.” That is not how Art. 42 and Art. 78 GC IV work.

Both tests – “absolutely necessary” under Art. 42, “imperative reasons of security” under Art. 78 – are individualised: necessity must be established for the particular person, on the basis of the threat that person presents, and generalised reference to on-going hostilities does not satisfy it. Articles 43 and 78 then require a right of appeal or reconsideration and periodic review by a competent body or court – twice yearly in any event under Art. 43, and if possible every six months under Art. 78. These are procedural obligations with teeth, and they are the model on which many proposals for NIAC detention review are built.

The post also has the comparison the wrong way round, as POW internment requires no individual necessity at all. Under Art. 21 GC III, a POW may be interned by reason of status alone, for the duration of hostilities, with release and repatriation due without delay after the cessation of active hostilities. On the threshold and review of detention, the civilian regime is the more demanding of the two. The combatant/POW regime is more generous on conditions and on immunity from prosecution for lawful acts of war, but not uniformly more generous. Treating the two regimes as a single ranked hierarchy, as Virginski does, obscures this.

Lack of POW Status does not Permit Torture or Physical Abuse in Interrogation

The post further states that captured opposing forces, “unlike POWs, may be physically coerced and can be the subjects of intensive interrogation.” The statement is incorrect insofar as it suggests that torture, physical abuse, cruel, inhuman or degrading treatment – or, where Art. 31 GC IV applies, physical or moral coercion – may lawfully be used to obtain information (paras. 2427-2432). Moreover, “intensive interrogation” is not a legal category. Questioning may be persistent and searching without becoming unlawful; it becomes unlawful when it involves torture, cruel, inhuman or degrading treatment, or other prohibited coercion.

The prohibition on torture and other ill-treatment is not a privilege of status. Common Article 3 prohibits cruel treatment and torture, and outrages upon personal dignity, with respect to all persons taking no active part in hostilities, including those placed hors de combat by detention – which is every detainee, whatever their prior conduct. Article 31 GC IV prohibits physical or moral coercion against protected persons, in particular to obtain information. Article 75 AP I requires humane treatment of any person in the power of a Party who does not benefit from more favourable treatment under the Conventions, and prohibits absolutely, at any time and in any place, violence to life, health, or physical or mental well-being, torture of all kinds, corporal punishment, outrages upon personal dignity, and threats to commit any of those acts – language drafted precisely for the unprivileged belligerent Virginski is writing about.

Moreover, Rule 90 of the ICRC Customary IHL Study records the prohibition of torture and cruel or degrading treatment as customary in both IACs and NIACs. The Convention against Torture adds an unqualified, non-derogable prohibition binding regardless of the victim’s status or conduct.

The post in fact contradicts itself on this within a single paragraph, listing “protection from torture or other cruel, inhumane, or degrading treatment or punishment” among the rights such detainees hold, and then in the next sentence stating that they may be physically coerced. Unless “physically coerced” is meant to describe force lawfully used to restrain or control a detainee, the two statements cannot both stand. GC III confers on prisoners of war an additional, interrogation-specific protection: under its Art. 17, a prisoner is bound to give no more than limited identifying information, and no physical or mental torture, nor any other form of coercion, may be inflicted to secure information of any kind whatever. That prohibition reaches beyond the universal floor, and it is genuinely a function of status. But the fact that other detainees do not enjoy that additional protection does not mean they may lawfully be tortured, physically abused, or subjected to cruel, inhuman or degrading treatment during interrogation. The floor is common to every person in enemy hands, and GC III builds above it, and nothing dismantles it.

The Proposal has Important (and Sobering) Precedents

Virginski concludes by urging States to adopt an additional protocol establishing a uniform detention regime guaranteeing humane treatment, adequate food and medical care, freedom from coercive interrogation, family contact, and independent ICRC monitoring regardless of classification. We agree with the substance, but it is presented as an idea without a history it in fact has.

Related efforts were undertaken first through the Copenhagen Process on the Handling of Detainees in International Military Operations, a five-year, State-led effort that concluded in October 2012 with participating States “welcoming” a set of non-binding principles and guidelines – an outcome showing that States recognised the problem but could not agree on the specificity needed to solve it.

A broader effort to strengthen NIAC detention protection was subsequently pursued through the ICRC’s initiative on strengthening legal protection for persons deprived of liberty in relation to armed conflict, launched pursuant to a 2011 resolution and carried forward through four years of State consultations before being brought to the 32nd International Conference of the Red Cross and Red Crescent in December 2015. The 2015 resolution directed further work toward one or more concrete, implementable and non-legally binding outcomes, but the ensuing process did not even secure agreement on modalities and a work plan. Divergence over the extraterritorial reach of human rights law, and State reluctance to confer anything resembling status on armed groups, were among the obstacles in both processes.

A reform proposal has to engage with the record of the terrain it proposes to enter. We ask, what would make a treaty negotiation succeed where the 2012 and 2015 processes stopped short? And, which of the objections were principled and which merely convenient?

Where the Gap Actually Lies

We want to close constructively, because there is a real and urgent problem beneath the post’s framing, and identifying it precisely makes the case for reform stronger.

The gap in the law of detention in NIAC is not primarily about standards of treatment. Those standards are, at the floor, reasonably settled. Common Article 3, the fundamental guarantees of the Protocols, and customary IHL prohibit torture, cruel or degrading treatment, and conviction or punishment without basic judicial guarantees, supplemented by applicable human rights law.

The most acute doctrinal gap concerns the grounds and procedures of detention. Does IHL itself confer authority to intern in a NIAC, or must it be found in domestic law or a Security Council mandate? What individualised threshold must be met? What review is owed, by what body, how often, and with what access to the evidence? On what conditions may a detainee be transferred to another State? Meaningful gaps also remain in the detailed regulation of detention conditions, the protection of especially vulnerable detainees, family contact and access by impartial humanitarian organisations.

These are the questions that have produced genuinely divided authority. The Serdar Mohammed litigation exposed the disagreement over whether NIAC IHL itself contains or implies an authority to intern. The High Court and Court of Appeal rejected the claimed basis for the detention before them; the Supreme Court majority in Al-Waheed located the relevant authority in Security Council resolutions without resolving the customary IHL question. In Hassan v. United Kingdom, an IAC case, the European Court of Human Rights accommodated security internment within Art. 5 of the Convention by reading it alongside IHL. Those are the questions a new instrument would have to answer, and on which States divided in 2012 and 2015. A post that located the gap there, rather than in treatment standards that are far better covered, would be pushing on a door that is genuinely ajar.

Concluding Remarks

None of this diminishes the importance of what Virginski’s original post set out to do. The classification of persons captured in contemporary armed conflict is under-theorised relative to its stakes, and we appreciated the humanitarian instinct animating the piece.

The case for reform, however, is only as strong as the description of the existing law it rests on. The original post makes the law look both less protective than it is – no detainee may be tortured or physically abused in interrogation – and less developed than it is, with Art. 75 AP I, AP II, Delalić, and substantial State practice and intergovernmental consultation on detention safeguards left out. Getting the baseline right would make the argument for building on it more persuasive.