A/HRC/30/37
exculpatory evidence and arguments under the same conditions as the prosecution,
all of which should take place in an adversarial process.
94.
Where civilians are detained in relation to an international armed conflict, the
following conditions are to be ensured:
(a)
Reconsideration of a decision to intern or to place in assigned residence
alien civilians in the territory of a party to an international armed conflict , or
civilians in an occupied territory, or appeal in the case of internment or assigned
residence, must be undertaken “as soon as possible” or “with the least possible
delay”. While the meaning of these expressions must be determined on a case -bycase basis, any delay in bringing a person before the court or administrative board
must not exceed a few days and must be proportional in the particular context;
(b)
Although the particular procedures for reconsideration or appeal are to
be determined by the detaining or occupying Power, such proceedings must always
be undertaken by a court or administrative board that offers the necessary guarantees
of independence and impartiality, and the processes of which include and respect
fundamental procedural safeguards;
(c)
Where decisions to intern or to place a civilian in assigned residence
are maintained in accordance with the latter proceedings, internment or residential
assignment must be periodically reviewed, at least twice a year. Such a review is to
be undertaken by a court or administrative board that offers the necessary guarantees
of independence and impartiality, and the processes of which include and respect
fundamental procedural safeguards;
95.
The right of persons detained as prisoners of war to bring proceedings before court
without to delay to challenge the arbitrariness and lawfulness of their detention and to
receive appropriate and accessible remedy is to be respected, in order to:
(a)
Determine whether a person falls within the category of prisoner of
war;
(b)
Act as a check to ensure that a seriously injured or ill prisoner of war is
repatriated or transferred to a neutral State;
(c)
Act as a check to ensure that prisoners of war are released and
repatriated without delay after the cessation of active hostilities.
96.
With regard to detention in relation to a non-international armed conflict:
(a) Administrative detention or internment may only be permitted in the
exceptional circumstance where a public emergency is invoked to justify such
detention. In such a case, the detaining State must show that:
(i)
The emergency has risen to a level justifying derogation;
(ii)
Administrative detention is required on the basis of the grounds and
procedures prescribed by law of the State in which the detention occurs and is
consistent with international law;
(iii) The administrative detention of the person is necessary, proportionate
and non-discriminatory, and the threat posed by that individual cannot be
addressed by alternative measures short of administrative detention;
(b)
A person subject to administrative detention has the right to bring
proceedings before a court that offers the necessary guarantees of independence and
impartiality, and the processes of which include and respect fundamental procedural
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