A/HRC/43/35
detainees in such contexts have reduced access to medical and educational services, for
example, and to effective protections and remedies to which they are entitled, including
through the judicial system.
18.
Furthermore, while detention in peacetime is normally linked to criminal offences,
in armed conflict it is lawful, under certain conditions (see paras. 20–23 below), for
belligerent parties to detain individuals in order to prevent a security threat from
materializing 60 or to hold them as prisoners of war solely because of their status as
combatants, irrespective of their actual conduct.61 Additionally, armed conflicts frequently
involve transfers of detainees between co-belligerents, giving rise to further concerns that
human rights may be violated in the transition from one detaining authority to another or
that receiving authorities may afford substantially lower levels of human rights protection
(see para. 28).
B.
Lack of a legal basis or defined grounds and procedures for
extraterritorial detention
19.
While detention that is authorized, and that is consistent with international
humanitarian law, is in principle not arbitrary,62 extraterritorial detention in armed conflict
when carried out without a legal basis becomes arbitrary and violates the right to personal
liberty. In international armed conflicts, waged between States and usually involving
extraterritorial operations by at least one party to the conflict, international humanitarian
law authorizes status-based extraterritorial internment of combatants as prisoners of war 63
and permits the criminal detention 64 and internment of protected persons 65 in occupied
territory when deemed necessary for imperative security reasons. 66 By contrast, in noninternational armed conflicts, waged between a State and one or more organized non-State
armed groups or between non-State armed groups, international humanitarian law does not
explicitly establish a legal basis for detention. While, according to the International
Committee of the Red Cross, parties to a non-international armed conflict have an inherent
power to intern persons on the grounds of imperative reasons of security,67 this position is
not unanimous.68
20.
In any event, the prohibition on arbitrary deprivation of liberty requires that, in all
circumstances, detention be implemented pursuant to substantive grounds and appropriate
procedures established by law.69 With respect to international armed conflicts, international
humanitarian law specifies permitted grounds for detention and procedures to ensure that
those grounds are met. 70 However, as international humanitarian law does not itself
establish specific grounds and procedures for extraterritorial internment in non-international
armed conflicts,71 such detention would be arbitrary unless relevant grounds and procedures,
consistent with international law, are specified in an applicable binding instrument, such as
the applicable domestic law of the State in whose territory the detention takes place or of
the detaining State, or a specific agreement between the host State and the detaining State
60
61
62
63
64
65
66
67
68
69
70
71
8
Such non-criminal detention for security reasons is sometimes also referred to as “administrative
detention” or “security detention”.
Geneva Convention relative to the Treatment of Prisoners of War (Third Geneva Convention), art. 4.
Human Rights Committee, general comment No. 35, para. 64.
Third Geneva Convention, art. 21 (1).
Geneva Convention relative to the Protection of Civilian Persons in Time of War (Fourth Geneva
Convention), arts. 64 and 68.
Protected persons are those protected by the Fourth Geneva Convention as defined in article 4 thereto.
Fourth Geneva Convention, arts. 76 (1) and 78 (1).
ICRC, Commentary of 2016 on the First Geneva Convention, para. 720.
Court of Appeal of the Royal Courts of Justice, Serdar Mohammed and others v. Secretary of State
for Defence, Case No. [2015] EWCA (Civ) 843, 30 July 2015; Supreme Court, Abd Ali Hameed AlWaheed v. Ministry of Defence, Case No. [2017] UKSC 2, 17 January 2017.
International Covenant on Civil and Political Rights, art. 9; Human Rights Committee, general
comment No. 35, para. 11.
Third Geneva Convention, arts. 5 (2), 21 (1) and 118; Fourth Geneva Convention, arts. 42–43, 78,
132 (1) and 133 (1); Additional Protocol I, art. 75 (3).
www.icrc.org/en/document/internment-armed-conflict-basic-rules-and-challenges.
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