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it should be borne in mind that both bodies of law had very similar objectives. In that respect,
while humanitarian law contained sufficient legal norms to regulate the use of force in
international armed conflicts, there was no similar regulation in non-international armed
conflicts and, therefore, human rights law was the most suitable legal framework.
25. The question of international legal standards applicable to detention in the context of
armed conflicts was discussed as another example of the complex relationship between
international human rights law and international humanitarian law. It was recalled that
international humanitarian law, under certain conditions, allowed for a form of administrative
detention designated as internment. The internment of prisoners of war and civilians in
international armed conflict was regulated by the Third and Fourth Geneva Conventions. The
Fourth Geneva Convention regulated issues concerning the internment of civilians in articles 42,
43 and 78 regarding situations of international armed conflict. Article 75 of Additional Protocol I
to the Geneva Conventions further provided for certain guarantees to detained persons in the
context of international armed conflicts. It was pointed out that, while international humanitarian
law contained provisions dealing with detention in international armed conflicts, there were still
gaps of protection that could only be filled in by human rights law, such as the issue of judicial
review of detention. Moreover, international humanitarian law contained general rules on
internment in situations of non-international armed conflicts in articles 5 and 6 of Additional
Protocol II to the Geneva Conventions. It was further noted that the preamble to Additional
Protocol II recalled that international instruments relating to human rights offered basic
protection to the human person. Therefore, in view of the complementarity of human rights law
and international humanitarian law, the extent of guarantees and protections to be observed with
regard to civilian detainees during an armed conflict could be fleshed out by reference to both
bodies of law.
26. The situation was more problematic, however, when the question concerned which rules
should be applied by non-State armed groups in cases of deprivation of liberty. It was indicated
that some may oppose the application of human rights obligations on detention to armed groups,
particularly because the issue of detention was closely tied to the question of justice, which was
seen as a sovereign function of the State. Nevertheless, the application of the principle of
humane treatment spelled out in common article 3 to the Geneva Conventions provided a
minimum threshold of protection that non-State actors should be called to observe.
27. With regard to the framework for the conduct of non-State actors, it was further pointed
out that certain international mechanisms, such as fact-finding commissions, could look at the
application of both human rights law and international humanitarian law by States and non-State
actors. Similarly, special rapporteurs had also looked at the conduct of non-State actors. It was
further pointed out that there were examples of human rights treaties containing provisions
explicitly related to obligations of non-State armed groups. For instance, article 4 of the Optional
Protocol to the Convention on the Rights of the Child on the involvement of children in armed
conflict clearly stipulated that armed groups that were distinct from Government armed forces
should not, under any circumstance, recruit or use in hostilities persons under the age of
18 years. It was recalled that, during the negotiations on the Protocol, questions were raised as to
whether that provision embodied a human rights or an international humanitarian law norm.
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